Canadian Union of Public Employees and its Local 1854 v. Country Place Nursing Homes Limited
[1984] OLRB Rep. March 441
2500-83-U; 2501-83-U Canadian Union of Public Employees and its Local 1854, Applicant/Complainant, v. Country Place Nursing Homes Limited, Respondent
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members W H. Wightman and S. Cooke.
APPEARANCES: W Brown and Bruce Land for the applicant/complainant; James E. Bowden and John Fedyna for the respondent.
DECISION OF THE BOARD; March 12, 1984
1The name of the respondent is amended to read: "Country Place Nursing Homes Limited".
2This is an unfair labour practice complaint filed under section 89 of the Labour Relations Act which was scheduled for hearing together with a related application for consent to prosecute the respondent employer for alleged breaches of the Act. Both proceedings came on for hearing before the Board on Thursday, March 1, 1984.
3The details of the unfair labour practice allegations need not be set out here. It suffices to say that the dispute arises from the reorganization of certain aspects of the respondent's business. The union claims that the steps taken by the employer were contrary to both the Labour Relations Act and a collective agreement by which the employer is bound. In this latter regard, grievances were filed in December, 1983 and January, 1984. These grievances were not settled in the grievance procedure and, at the time of the hearing before this Board, were working their way through the arbitration process. Fifteen related grievances respecting the rescheduling of employees' working hours were to be considered by an arbitrator on Tuesday, March 6, 1984, i.e. only two working days after the initial hearing before this Board. For the other two grievances, nominees had been selected and those nominees were in the process of choosing a mutually acceptable chairman for the arbitration board. There was nothing before the Board to indicate that this process could not be completed relatively quickly so that, in accordance with the terms of the collective agreement, there could be an arbitrated resolution of this dispute as well. The Board also notes that the underlying problem — the employer's effort to change its method of operation or use outside subcontractors — has been the subject of the parties' current round of negotiations. This collective bargaining impasse will ultimately come before an interest arbitrator appointed pursuant to the Hospital Labour Disputes Arbitration Act.
4The union concedes that there is a substantial overlap between the issues in the arbitration proceedings and the unfair labour practice complaint. In both cases a key element is the interpretation of the parties' collective agreement and the extent to which it might restrict the way in which the respondent now seeks to organize its business. The union also concedes that the evidence it would lead and the remedies it would seek would be substantially similar. Finally, since the arbitration process is now well in motion, if the Board takes jurisdiction as well, there is a real likelihood of two parallel proceedings, in different forums but involving similar evidence, issues, arguments, and remedies. Whatever the legal propriety of such dual proceedings, they would make no practical sense and would only serve to exacerbate the already difficult relationship between the parties.
5Now, there is no doubt that it is the Labour Relations Board that is charged with the responsibility for administering the Labour Relations Act and the important rights it confers on employees. The Board's statutory powers, remedial authority, and experience adjudicating unfair labour practice cases are all superior to what may be found in a more private arbitration process where adjudicators are paid and selected by the parties. An arbitrator is unlikely to have the sensitivity to the statutory issues which this Board has necessarily acquired through its specialized experience with this statute. Nor is it intuitively obvious why an aggrieved employee should have to pay for the vindication of his statutory rights. On the other hand, the arbitration process is also rooted in the statute and it is conceded that in this case the resolution of the contractual issues is congruent with the resolution of the unfair labour practice complaint. There are no key provisions of the Act which require important elaboration, and no reason to believe that the arbitration process will not yield a binding decision with reasonable promptness. On the contrary, it appears that these problems can be put before an arbitrator at least as quickly as this Board could deal with them, and, it would certainly make no sense to have litigation proceeding simultaneously in two forums.
6Having regard to the foregoing, we are not satisfied that, at this time, the Board should inquire into the complainant's unfair labour practice allegations. Rather, we are satisfied that this is an appropriate case to defer to arbitration. In accordance with the Board's usual practice in such matters, the Board will, however, retain jurisdiction in order to ensure that the matter does come before a board of arbitration with reasonable expedition and that the outcome of arbitration is neither repugnant to the purposes of the Act, nor remedially inadequate (see generally: Valdi Inc., [1980] OLRB Rep. Aug. 1254).
7We are satisfied that the consent to prosecute application should be adjourned as well. Prosecution is a quasi-criminal remedy available only with the consent of the Board. Such consent has seldom been granted in recent years and probably would not be granted unless the Board was satisfied that the remedies available to the union under section 89 were insufficient or there were some compelling public policy considerations. Moreover, it appears that the union seeks to prosecute the employer for its failure to meet "forthwith" following a Board order to that effect issued on February 23, 1983; yet, the union did not complain about this alleged non-compliance with a Board direction for more than a year. It did not seek enforcement of the Board's determination under section 89(6) of the Act, as it might have done, and given the six-month limitation for prosecutions, it is difficult to see how the union can now invoke that process even if the Board were disposed to grant its consent.