Ontario Labour Relations Board

[1988] OLRB Rep. April 371

2765-87-U International Brotherhood of Electrical Workers, Local 1744, Com­plainant v. Boise Cascade Canada Limited, Respondent

BEFORE: Patricia Hughes, Vice-Chair, and Board Members D. A. MacDonald and R. R. Monta­gue.

APPEARANCES: S. B. D. Wahl and D. Langtry for the complainant; Peter Thorup, Jim Gartshore, Len Robinson, Gord Cornell and John Payne for the respondent.

DECISION OF THE BOARD; April 22, 1988

1. In August 1987, the respondent, Boise Cascade Canada Limited ("Boise Cascade" or "the company"), informed the complainant, International Brotherhood of Electrical Workers, Local 1744 ("the union or "Local 1744"), that it was planning to hire four new apprentice electri­cians. Boise Cascade decided that one of the apprentices it hired, Jeff Steinke, would be paid at the third year apprenticeship rate because of his experience and background. The other three apprentices were paid the first year rate, although subsequently the company did request the Min­istry of Colleges and Universities to re-assess the number of hours they would be credited towards the number required for completion of the apprenticeship. The union took the position that a deci­sion such as that made about Mr. Steinke could be made only by the Joint Apprenticeship and Training Committee ("the Joint Committee") pursuant to article 3101(a) of the collective agree­ment between the company and the union. The company, on the other hand, contended it had the right to make that determination, regardless of any involvement by the Joint Committee. Local 1744 filed a grievance that the company had violated the collective agreement which went to the third stage of the grievance procedures but has not yet gone to arbitration. The union then filed this complaint with the Board, alleging that Boise Cascade's conduct in starting Mr. Steinke at the third year rate is a contravention of sections 64, 66 and 67 of the Labour Relations Act ("the Act"). The union says that the company has bargained directly with Mr. Steinke and has usurped the union's function as the sole bargaining agent of the employees it represents.

2. In its complaint, the union seeks cease and desist orders, an order of compliance with an agreement the union says provides for a role-back of Mr. Steinke's wages, an order that the company "be required to reach agreement with the [union] with respect to all apprenticeship issues including those relating to [Mr. Steinke's] wage rate and apprenticeship standing under the aus­pices of the [Joint Committee] and damages. In argument, counsel characterized the relief the union was seeking as "equal treatment across the board of all apprentices" and "mak[ing] sure that the union through the Joint Committee participates in decisions about particular apprenticeship arrangements".

3. The company raised a preliminary motion that we decline to hear the complaint and defer to arbitration. Among his other submissions in response to the company's motion, counsel for the union argued that the complaint deals with matters going beyond the collective agreement: he referred to a jurisdictional dispute currently before the Board in which the International Associ­ation of Machinists and Aerospace Workers' Local 771 ("the I.A.M.") is seeking to have all instrumentation work at Boise Cascade's pulp and paper mill in Fort Frances assigned to it, whether it be pneumatic, hydraulic or fluidic instrumentation (currently performed by members of the I.A.M.) or electrical or electronic (currently being performed by Local 1744) (see Board File No. 2747-87-JD). Local 1744's position in that dispute is that the status quo be maintained; the company's first position is that Local 1744 be assigned all the work and, in the alternative, that the status quo prevail. Counsel suggests that the treatment of Mr. Steinke, who was a member of the I.A.M. employed at Boise Cascade before he became an apprentice electrician and member of Local 1744, is an attempt by the company to accomplish the distribution of work it has requested in the juris­dictional dispute. The union does not make a specific allegation with respect to the company's motive in treating Mr. Steinke as it did, but counsel argues that that treatment should be assessed against the background of the jurisdictional dispute and the suggested motive taken into account in determining whether the complaint goes beyond the collective agreement. He also argues that the Board can interpret article 3101(a) in a manner consistent with the Act. The arbitrator, on the other hand, would be restrained by the limitation which article 704 of the collective agreement places on his or her jurisdiction: "The Arbitrator shall not be authorized to render any decision consistent with the terms of this Agreement, nor shall he alter, add to, or amend any of its provi­sions".

4. As appears from the written material before us, and confirmed by union counsel's sub­missions at the hearing, the union's complaint, when stripped to its essence, is that it believes the company is obliged to make apprenticeship arrangements through the Joint Committee, composed of two company and two union representatives~ and that it did not do so in this case resulting in better treatment for Mr. Steinke than for the other three new apprentices. We could not determine whether such conduct contravened the Act unless we determined the meaning of article 3101(a). Clearly this is a matter within the jurisdiction of an arbitrator. There is no dispute that the arbitra­tor has jurisdiction and, indeed, the arguments of the parties really centre on which is the more appropriate forum: the arbitrator or the Board. The Board has held that "it is generally appropri­ate for the Board to defer to arbitration where a complaint alleging a violation of the Act primarily relates to a contractual difference between the parties': Nelson Quarry Operation of Genstar Stone Products Inc., [1983] OLRB Rep. Sept. 1531; also see Kodak Canada Ltd., [1977] OLRB Rep. Feb. 49. Accordingly, the Board has assumed jurisdiction only in cases where the issue is not essentially a contractual dispute. In our view, despite the gloss which counsel for the union has attempted to put on this dispute between it and the company, we are satisfied that it is most appro­priately characterized as one relating primarily (if not totally) to a contractual difference between the parties. The allegations in the complaint are not that the company engaged in one-to-one bar­gaining with Mr. Steinke but that the company did not follow the proper procedure in determining the rate of pay Mr. Steinke and the other apprentices would receive. We are satisfied that arbitra­tion can "effectively resolve both the unfair labour practice alleged and the violation of the collec­tive agreement" and that arbitration is not only available but also eminently suited to resolving the issue: Imperial Tobacco Products (Ontario) Limited, [1974] OLRB Rep. July 418.

5. Accordingly, after hearing the parties' submissions, we recessed and then reconvened to deliver the following oral decision:

We are of the unanimous opinion that this is a matter in which the Board should defer to the arbitration process and we do so. The essence of the complaint is the meaning of clause 3101(a) of the collective agreement and the scope of duties of the Joint Apprenticeship and Training Committee, that is, a matter squarely within the jurisdiction of the arbitrator.

In Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board points out that the Board will take jurisdiction "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": on the former, see Kodak Canada Ltd., supra, in which the Board held that the matters in issue had implications extending beyond the collective bargaining relationship of the parties and involved significant issues of interpreting the Act; see New Gregory House, [1977] OLRB Rep. Sept. 584, Nelson Quarry, supra, and Selinger Wood Ltd., [1979] OLRB Rep. June 574 for examples of cases in which the allegations, if proved, would constitute a repudiation of the collective bargaining relationship or "go to the very heart of the collective bargaining structure set out in the Act" (New Gregory House, supra). The Board will also take jurisdiction where arbitration is unavailable or as in Valdi Inc., supra, where "the right of access to the arbitration process is the subject of considerable debate". It will also assume jurisdiction where the arbitral remedy would be inadequate (see Silknit Limited, [1980] OLRB Rep. July 1054): in this case, should the arbitrator agree with the union's interpretation of clause 3101(a) of the col­lective agreement, the arbitrator can grant the substance of the remedies sought by the union from the Board, and any such decision would have the result of the participation of the union through the Joint Committee in par­ticular apprenticeship arrangements.

None of the circumstances considered in the jurisprudence apply here and therefore we defer to the arbitration process and decline to hear this com­plaint on its merits.