[1985] OLRB Rep. June 997
0326-85-U The Association of Professional Student Services Personnel, Complainant, v. The Board of Education for the City of York, Respondent, v. Elizabeth A. Carveth, Intervener
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members D. H. Blair and L. C. Collins.
APPEARANCES: Linda Rothstein and Anne Mills for the complainant; M. Patrick Moran and Norm Ahmet' for the respondent; Elizabeth Carveth on her own behalf.
DECISION OF THE BOARD; June 27, 1985
This is a complaint under section 89 of the Labour Relations Act, alleging violation of sections 64, 67 and 79 of the Act.
The respondent, by way of preliminary motion, submitted that the Board should not proceed the hear the merits of the complaint but rather defer to arbitration. The complainant opposed such deferral. The intervener took no position on the issue. The Board notes as well that the parties did reach agreement on a number of the facts pertaining to the dispute.
At the hearing, the Board made the following oral ruling:
The Board has considered the submissions of the parties with respect to the respondent's motion to defer to arbitration. There is no dispute that the general principles to be applied are those enunciated in Valdi Inc., [1980] OLRB Rep. Aug. 1254, particularly at paragraph 7. [For convenience, the Board herein sets out that paragraph.]
- It may be that the Board's approach has been somewhat less refined but the American treatment of deferral is not inconsistent with Board jurisprudence. Cases like Canadian Acme Screw and Gear Limited (1954), 54 CLLC 17,083; John Inglis Co. Ltd. (1953), 53 CLLC 17,049; National Showcase Co. Ltd. (1961), 61 CLLC 15,185; Heist Industrial Services Ltd. (1963), 63 CLLC 16,263; Wallace Barnes Co. Ltd. (1961), 61 CLLC 16,198 and Collingwood Shipyards, [1967] OLRB Rep. July 376 all approach the deferral doctrine as one that will encourage the practice and procedure of collective bargaining. These cases are also aimed at discouraging dual litigation and forum shopping by encouraging the parties to employ initially the contractual procedure for dispute settlement which they have created. See Kodak Canada Ltd. [19771 OLRB Rep. Feb. 49. But it is also apparent that in those cases the Board acted on the premise that the resolution of the contractual issues was congruent with the resolution of the statutory unfair labour practice issues. See Imperial Tobacco Products (Ont.) Ltd. et al., [1974] OLRB Rep. July 418 at para. 26. This congruence between the contractual dispute and the overlying unfair labour practice complaint is significant in the sense that the Board is able to take the view that the matter is primarily a contractual or factual difference between the parties. See Corporation of the County of Middlesex, [1976] OLRB Rep. Aug. 427 at para. 4. However, where key provisions of The Labour Relations Act require important elaboration and application or where the employer's or trade union's conduct represents a total repudiation of the collective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction. The former situation is reflected in Thomas Built Buses Ltd., [19801 OLRB Rep. Feb. 264 and the latter can be seen in New Greogry House, [19771 OLRB Rep. Sept. 584. Other circumstances in which the Board has been unwilling to defer to grievance arbitration involve cases where arbitration may have been unavailable to the complainant or where relief in that forum could have been inadequate. See Wallace Barnes Company Ltd. (1961), 61 CLLC 16,198 and the general discussion in Imperial Tobacco Products (Ontario) Limited, supra. Moreover, where the Board defers to the arbitration process it will nevertheless retain jurisdiction as the NLRB in order to insure (a) that the dispute over the meaning of the collective agreement is resolved with reasonable promptness; (b) that the arbitration procedures have been fair; and (c) that the outcome of arbitration is neither repugnant to the purposes of the Act or remedially inadequate. See Imperial Tobacco Products (Ontario) Limited, supra, for a full discussion of these subsidiary principles. We are also of the view similar to positions taken in Banyard and Stephenson, supra, that the Board will not defer or will exercise its retained jurisdiction where the grievance or board of arbitration fails to deal directly and explicitly with the unfair labour practice issues.
The complaint is clearly directed to the propriety of the admitted payment of some $2,400 to the intervener. In the Board's view, this matter falls within issues properly before an arbitrator, i.e., it is a dispute over the interpretation, application or administration of the collective agreement. The Board recognizes that the union, in response to a query by the Board, is prepared to forego its grievance filed under the collective agreement if the Board proceeds to hear the complaint on its merits. Further, the Board recognizes that there has been substantial agreement on the facts already presented to the Board. However, on review of the Board's record, that agreement on the facts is not complete and there would be the necessity of hearing viva voce evidence. The Board notes as well, for example, that it is not clear whether the respondent's explanation for stopping its practice of providing dues information to the union is accepted without qualification by the complainant. Moreover, and as expressed in Valdi, the Board approaches the "deferral doctrine" from the position that the practice and procedure of collective bargaining is to be encouraged. The parties have yet to proceed to step 6 of the grievance procedure; step 7, arbitration, lies beyond that. The Board is extremely reluctant to hear a complaint where to do so would be to short-circuit, in effect, the parties' internal mechanisms for dispute resolution. It may well be that, on reflection and in the context of the step 6 procedure, the parties are able to resolve the issues in dispute without recourse to step 7. The Board does not wish to assume jurisdiction where the opportunity of such possible settlement would be precluded.
In the Board's view, the arbitrator does have jurisdiction under the collective agreement virtually co-extensive with the complaint as filed with the Board. The Board notes too that deferral to arbitration does not end the matter; the Board retains overall jurisdiction, again as stated in Valdi. The issue essentially is whether the thrust of the union's allegations could appropriately be dealt with by the arbitrator with the Board retaining jurisdiction if one party asserts the arbitrator failed "to deal directly and explicitly with the unfair labour practice issues" (Valdi, supra, at para. 7). This process is the course considered by the Board as best in these circumstances.
Therefore, the Board grants the respondent's motion and exercises its discretion under the Act to defer to arbitration.
- The Board hereby confirms its oral ruling and, accordingly, the matter is deferred to arbitration.