[1986] OLRB Rep. July 994
0226-86-U United Brotherhood of Carpenters and Joiners of America, Local Union 3054, Complainant, v. Lloyd-Truax Limited Wingham, Respondent
BEFORE: M. C. Mitchnick, Vice-Chairman, and Board Members F. W. Murray and D. Patterson.
APPEARANCES: Christopher Bentley, Adam Salvona, Barb Hollman, Willa Harris, Elmer Schultz, Herb Boelke and Glenn Miller for the complainant; Christopher C. E. Eames, James E. Bowden and Gerry Wilhelm for the respondent.
DECISION OF THE BOARD (orally); July 21, 1986
This is a section 89 complaint in which the union alleges that the employer's failure to adhere to the restrictions in the collective agreement on foremen performing bargaining unit work has been so persistent as to amount to a violation of section 50 of the Act, and to make the matter a proper case for consideration by the Board. The employer, on the other hand, argues that the employer has been making every effort to control the conduct of its foremen, and that the issue between the parties is one of contract interpretation for an arbitrator. The respondent accordingly asks that the Board defer the matter to the arbitration procedure. There are two outstanding grievances dealing with the matter at this time.
None of the comments which the Board has to make are intended to in any way minimize or make light of the problems and frustration which the applicant union and its members are apparently experiencing over this issue of bargaining-unit work. The fact is, however, that it is only a single issue in what appears otherwise, from the responses of the parties this morning, to be a long and effective collective-bargaining relationship, and the simple question is, what is the appropriate avenue of the applicant for enforcement or relief?
In that regard, we are mindful of the fact that the Labour Relations Act itself establishes two broad avenues for enforcing legal rights: one public, where the disputes are those fundamentally arising out of the unfair labour practice sections of the Act itself; and one private, where the disputes are essentially "contractual" in nature and flow out of the provisions of the parties' collective agreement. It is the function of the Board to ensure that a proper line continues to be drawn between these two avenues, bearing in mind, as the Board noted in Country Place Nursing Home, [1984] OLRB Rep. Mar. 441, that "the arbitration process is also rooted in the statute".
The question of where this line is to be drawn has been most extensively canvassed in the Board's decision in Valdi Inc., [1980] OLRB Rep. Aug. 1254. There the Board, commenting on the appropriateness of arbitration as the forum for "essentially contractual" disputes, at paragraph 7 summarized the test in general terms as follows:
where key provisions of the Labour Relations Act require important elaboration and application or where the employer's or trade union's conduct represent 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.
Following up those comments of the Board, we recognize that the kind of repudiation referred to may, in some circumstances, exist even without repudiation of the collective agreement in its entirety. In that regard, we note in particular the case of Standard Insulation, [1984] OLRB Rep. Nov. 1622, cited to us by the applicant. But we also note that in that case there was no factual issue to be litigated; rather, there was a simple obligation to remit the necessary contributions to the union by the 15th of each month, and the employer, while presumably having it in its power to (at least randomly) comply, simply failed to do so. We also note that in that case the union had in fact invoked the final step of arbitration on several occasions, and that the matter in fact was before the Board, in part, with the Board sitting as an arbitrator under the provisions of Section 124 of the Act.
In this case there clearly has been no broad repudiation of the collective agreement or the bargaining agent, and the issue, in its pristine form, is classically one that arbitrators have been accustomed to dealing with. The relevant provision of this collective agreement provides:
2.02 Persons whose regular jobs are not in the bargaining unit shall not work at any jobs which are included in the bargaining unit...
There then follows, however, a list of exceptions:
…….except for the purposes of:
(i) providing necessary instructions to employees;
(ii) experimenting with new tools, designs or procedures prior to their adoption for use in regular operations; or
(iii) in emergencies, or
(iv) when regular employees are not available.
At some point, the union is going to have to articulate the specific incidents which it is relying upon, so that a third party can decide in which of the particular incidents none of the exceptions provided for in section 2.02 could be said to apply. And the question is, where is that litigation properly to take place? The union, it appears from the face of its allegations, has been patient, has, to its credit, attempted to resolve the matter through the acceptance of good-faith undertakings on the part of the employer; but, as it turns out, that has not proven to be successful in controlling the problem, and the one thing the union has not done is ever to take the next step designed for the ultimate enforcement of these rights under the collective agreement, and that is to proceed with a grievance to arbitration. We are not in any way critical of the union's decision to delay forcing the matter on to litigation. But that delay should not be used now to transform what would clearly be a matter of contract application and interpretation, into something else. In answer to the applicant's remedial concerns, it is not clear to us that an arbitrator will not be as flexible in fashioning a remedy, in light of the parties' earlier unsuccessful efforts to resolve this issue, as the Board would be in the present circumstances. It is, in any event, in our view not appropriate, where the factual and legal issues are classically ones for arbitration, to presume arbitration will be inadequate, where the Union has not yet taken any steps to test it.
It is accordingly our decision to defer this matter to arbitration. We note in that regard the agreement of the employer, given before us, to waive the time limits of the collective agreement relating to the referral of these matters to the final step of arbitration.
In light of the history of this matter, and the concerns expressed by the applicant, we are not inclined to depart from our normal practice when deferring, and that is to adjourn the matter sine die. See, again, Country Place Nursing Homes, supra, paragraph 6. The matter will be so adjourned for a period of one year from the date hereof. Should no request to proceed with the matter be received by the Registrar from either party within that period, the proceedings before the Board shall be terminated.```