Glen Cullen v. Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Local 414, 1987 CanLII 3267

[1987] OLRB Rep. May 714

2598-86-U; 2785-86-U Glen Cullen, Complainant v. Retail, Wholesale and Depart­ment Store Union, AFL:CIO:CLC:, Local 414, Respondent v. The Great Atlantic & Pacific Company of Canada, Limited, Intervener; Glen Cullen, Complainant v. Mr. Peter Cleary, Mr. Beaton, and the Great Atlantic and Pacific Tea Company of Canada, Respondents v. Retail, Wholesale and Department Store Union, AFL:CIO CLC:, Local 414, Intervener

BEFORE: Ken Petryshen, Vice-Chair, and Board Members D. G. Wozniak and R. R. Montague.

APPEARANCES: Glen Cullen for the applicant; Frank Reilly, Frank Richards, Roland Pearce and Carl Anthony for the respondent; Charles R. Robertson and Dana M. Stevens for the intervener.

DECISION OF THE BOARD; May 28, 1987

1. The Board has two matters before it. Board File No. 2598-86-U, which was filed with the Board on December 11, 1986, is a section 89 complaint alleging that the Retail, Wholesale and Department Store Union, Local 414 (the "union") contravened section 68 of the Labour Relations Act. Board File No. 2785-86-OH, which was filed with the Board on January 6,1987, is a com­plaint under the Occupational Health and Safety Act (O.H.S.A.) alleging that the respondents con­travened section 24(1) of that Act. On agreement of the parties, these complaints are hereby con­solidated. We will first address Mr. Cullen's complaint under the O.H.S.A.

2. Given the manner in which we have disposed of this complaint, we do not find it neces­sary to set out the events of August 8 in detail. For our purposes, the material facts relating to the O.H.S.A. complaint can be summarized as follows.

3. Although not scheduled to work on August 8, Cullen, a part-time employee, was called in to work at approximately 9:00 a.m. by P. Cleary, store manager. When Cullen reported for work at approximately 10:00 a.m., Cleary assigned him a number of duties, one of which was to clean the employee washroom in the basement at the back of the store. Later in the morning, Cul­len advised Cleary that he would not clean the washroom since the smell in the washroom would make him sick. On a number of occasions, Cleary directed Cullen to clean the washroom. Cullen continued to refuse. Cullen was given the opportunity to meet with two stewards who advised him to comply with Cleary's direction. Since Cullen still refused to clean the washroom, Cleary termi­nated his employment. D. Downer, a full-time employee, subsequently was directed to clean the washroom. In his evidence, Downer indicated he cleaned the washroom in approximately ten min­utes and that the smell did not bother him.

4. Shortly after August 8, a grievance was filed against the Great Atlantic & Pacific Com­pany of Canada Limited (the "employer") challenging Cullen's discharge. A second stage meeting concerning the grievance occurred on September 10, 1986. Since the employer was not prepared to alter the discharge, the union gave the employer notice by letter dated September 22, 1986 of its intention to arbitrate Cullen's discharge grievance. Near the end of October, 1986, the employer initiated settlement discussions with F. Richards, the union's business agent. The employer offered to reinstate Cullen with seniority but without any compensation. When he relayed the employer's offer to Cullen, Richards explained to Cullen that there was no guarantee his grievance would suc­ceed at arbitration and that his grievance might not be heard for some time. In this discussion, Richards emphasized that it was up to Cullen to decide whether he would accept the employer's offer. Since Cullen appeared to be a little uncertain, Richards suggested he take some time to think it over. On the following day, Cullen called the union and indicated that he had decided to accept the employer's offer. Cullen was reinstated effective November 3, with seniority but with­out any compensation, pursuant to the settlement of the grievance between the union and the employer. Approximately two months after his reinstatement, Cullen filed this complaint under the O.H.S.A. in order to recover his lost earnings from the time of his discharge until his reinstate­ment.

5. One of the submissions made by counsel for the employer was to the effect that the Board should exercise its discretion in favour of not inquiring into the complaint, since the dispute over Cullen's discharge was settled between the parties during the grievance procedure with Cul­len's consent. Given the Board's conclusion on this issue, it is unnecessary to address the other submissions of the parties.

6. Section 24(1), (2) and (3) of the O.H.S.A. read:

24.-(l) No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker,

because the worker has acted in compliance with this Act or the regulations or an order made thereunder or has sought the enforcement of this Act or the regulations.

(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and bind­ing settlement by arbitration under a collective agreement, if any, or file a complaint with the Ontario Labour Relations Board in which case any regulations governing the practice and pro­cedure of the Board apply, with all necessary modifications, to the complaint.

(3) The Ontario Labour Relations Board may inquire into any complaint filed under subsection (2), and section 89 of the Labour Relations Act, except subsection (5), applies with all necessary modifications, as if such section, except subsection (5), is enacted in and forms part of this Act.

7. When a worker feels that he or she has been affected by a contravention under section

24(1) of the O.H.S.A., subsection (2) requires the worker at some point to make an election of the forum in which he or she will seek a remedy. At some point, a worker must choose either to pro­ceed before the Board or to proceed under the arbitration provisions of the relevant collective agreement. See, The Municipality of Metropolitan Toronto, [1986] OLRB Rep. Feb. 283, and the cases cited therein. It is not necessary for us to define with precision at what point the worker must make an election. But having elected one forum and having obtained a determination of the issue in that forum, a worker cannot then attempt to obtain a remedy in the other forum. Implicit in sec­tion 24(2) and the choice of procedures set out therein is the recognition of the undesirability of having the same issue litigated in two quite separate forums. We agree with the comments of the Board in The Municipality of Metropolitan Toronto, supra, at paragraph 10, where the Board stated that the O.H.S.A. issue raised by a grievance is not severable in the sense that one can take the just cause aspect of a discharge to arbitration and the O.H.S.A. aspect to the Board. The issue of whether the discipline was proper is one issue and with respect to that issue a worker must at some point choose in which of the two forums he or she will seek a remedy.

8. In the circumstances before us, Cullen elected to seek a remedy for his discharge by uti­lizing the grievance and arbitration provisions of the collective agreement between the union and the employer. Cullen's discharge grievance was settled by the union and employer with Cullen's consent. Not only did Cullen seek a remedy under the collective agreement, but a resolution of the discharge grievance was achieved which was acceptable to Cullen. In filing his O.H.S.A. complaint approximately two months after his discharge grievance was settled, Cullen is, in effect, attempting to raise the same issue, namely the propriety of his discharge, before this Board, after agreeing to a resolution of the discharge within the process of the other available forum. The Board finds that this is an appropriate situation in which to exercise its discretion in favour of not inquiring into Cul­len's complaint in Board File No. 2785-86-OH.

9. Accordingly, Cullen's complaint in Board File No. 2785-86-OH is hereby dismissed.

[Remainder of decision omitted.' Editor]