[1988] OLRB Rep. February 204
2292-86-U Delphis W. Vandette, Complainant v. The Corporation of the Township of St. Joseph and Labourer's International Union of North America Local 1036, Respondents
BEFORE: Ken Petryshen, Vice-Chair, and Board Members G. 0. Shamanski and H. Peacock.
APPEARANCES: Orlando Rosa for the complainant; L. Steinberg and Jimmie Lewis for Labourer's International Union of North America, and Gladys Pardu for The Corporation of the Township of St. Joseph.
DECISION OF THE BOARD; February 17, 1988
This is a complaint under section 89 of the Labour Relations Act in which it is alleged that the Corporation of the Township of St. Joseph ("the Township") contravened sections 50 and 67 of the Act and that the Labourer's International Union of North America, Local 1036 ("Local 1036") contravened section 68 of the Act.
The Board began the proceedings by inquiring into the complaint insofar as it alleged contraventions of sections 50 and 67 of the Act against the Township. At the Board's request, counsel for the complainant set out the facts upon which the complainant intended to rely in support of the allegations made against the Township. Counsel for the complainant then made submissions to the effect that the facts relied upon should cause the Board to find a violation of sections 50 and 67 of the Act. After entertaining counsel for the complainant's submissions, the Board recessed to consider the matter. When the hearing recommenced, the Board orally ruled at the hearing that it dismissed the complaint against the Township with respect to the sections 50 and 67 allegations even assuming the facts relied on by counsel were true. Our reasons for this decision are as follows.
Mr. D. Vandette was hired by the Township in June 1984 as a temporary part-time labourer in the Township's road department. The Township decided to hire a temporary part-time labourer at that time since one of the road department employees, Mr. Lloyd Aikens, was off work due to an injury and because temporary help might be required for holiday replacement. As a result of the scheduled return of Aikens, the Township advised Vandette that he would be laid off on January 11, 1985. Prior to the lay-off, Vandette worked a considerable number of hours and subsequent to the lay-off, he worked on a sporadic basis.
In April 1986, the Township sought applicants for the position of equipment operator which became vacant upon the resignation of Aikens. Vandette was one of a number of applicants who applied for the job but he was not the successful applicant. The Township selected Harold Brown to fill the position. In essence, it is the Township's decision to hire Brown as an equipment operator instead of Vandette which the complainant argues constitutes a violation of the relevant collective agreement and, therefore, section 50 of the Act. In support of the contention that the Township contravened section 67 of the Act, the complainant relies on the fact that representatives of the Township had discussions with the applicants for the vacant position which involved the nature of the job and their qualifications. In counsel for the complainant's submission, these discussions contravene section 67's prohibition against individual bargaining.
Sections 50 and 67 read as follows:
A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.
67.-(l) No employer, employers' organization or person acting on behalf of an employer or an employers' organization shall, so long as a trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with any person or another trade union or a council of trade unions on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
(2) No trade union, council of trade unions or person acting on behalf of a trade union or council of trade unions shall, so long as another trade union continues to be entitled to represent the employees in a bargaining unit, bargain with or enter into a collective agreement with an employer or an employers' organization on behalf of or purporting, designed or intended to be binding upon the employees in the bargaining unit or any of them.
Although not automatic, the general policy of the Board is to defer to the arbitration process where the matter complained of involves an alleged contravention of both the collective agreement and the Act. With respect specifically to an alleged violation of section 50 of the Act, the Board will not entertain such a complaint unless what is alleged amounts to a total repudiation of the collective agreement (see Maple Leaf Taxi Company Ltd., [1982] OLRB Rep. Nov. 1671) or in some other way amounts to a failure to recognize a bargaining agent. Since the alleged breach of section 50 is based on a single incident involving the failure of the Township to award the complainant the equipment operator position, the Board was satisfied that these were circumstances which would not cause it to entertain the complaint insofar as it alleged a breach of section 50 of the Act.
In our consideration of the submission relating to the alleged contravention of section 67 of the Act, the Board was satisfied that the facts relied upon did not establish a contravention of the Act. Sub-section 67(1) of the Act is a provision which prohibits an employer from interfering with the bargaining rights of a trade union that is entitled to represent its employees. The discussions between Township representatives and the applicants for the equipment operator position were not unusual and did not amount to interference with the bargaining rights of Local 1036.
Although it is unnecessary to decide the issue, we do not wish the manner in which we have disposed of the complaint as against the Township to imply that individuals have status to make complaints alleging contraventions of sections 50 and 67 of the Act. The Board previously has found that employees do not have status to bring a complaint alleging breaches of sections 15 or 79 of the Act (see Canadian General Electric, [1980] OLRB Rep. Aug. 1179 and Blue Line Taxi Ltd., [1987] OLRB Rep. Apr. 470). It appears to us that the analysis utilized in these cases is applicable to employee complaints alleging violations of sections 50 and 67 of the Act.
Once the panel disposed of the allegations in the complaint against the Township, the Vice-Chair proceeded to hear the section 68 aspect of the complaint alone.