Ontario Labour Relations Board

[1988] OLRB Rep. August 7

2460-87-U; 2804-87-U; 2805-87-U; 2806-87-U; 3235-87-U; 3523-87-U; 3524-87-U; 3525-87-U; 0136-88-U; 0251-88-U; 0678-88-U; Retail, Wholesale and Department Store Union, AFL:CIO:CLC:, Complainant v. Cuddy Food Products Ltd., Respondent v. United Food and Commercial Workers International Union, Local 175, Intervener

BEFORE: Louisa M. Davie, Vice-Chair, and Board Members M. Rozenberg and E. G. Theobald.

APPEARANCES: David Jewitt, Bob Low, Frank Reilly and Jane Hoekstra for the complainant; John B. West, George F. Root, and Jack Westman for the respondent; Douglas J. Wray and John Hurley for the intervener.

DECISION OF THE BOARD; August 29, 1988

1. We have before us eleven complaints filed pursuant to section 89 of the Labour Rela­tions Act ("the Act"). In each of the complaints the complainant is the Retail, Wholesale and Department Store Union, AFL:CIO:CLC ("RWDSU") and the respondent is Cuddy Food Prod­ucts Ltd. ("Cuddy Food"). Although a formal intervention was not filed with the Board in all of the files, the United Food and Commercial Workers International Union and its Local 175 ("UFCW") appeared before the Board and sought to intervene in each of these eleven complaints. A recitation of the facts quickly discloses that the UFCW has an interest in these proceedings, may be affected by these proceedings and we find has status to intervene in these proceedings by virtue of its existing bargaining rights.

2. In the complaint filed in Board File No. 0678-88-U, the complainant requested that the Board consolidate that complaint with complaints previously filed in Board Files 2460-87-U, 2804-87-U, 2805-87-U, 2806-87-U, 3235-87-U, 3523-87-U, 3524-87-U, 3525-87-U, and 0136-88-U. Although not referred to in this list, in the complaint filed in Board File 0251-88-U, the complain­ant requested that the Board "appoint an officer to deal with this and the other complaints out­standing." As a result, all eleven files were scheduled for hearing and came before this Board on June 30, 1988. At that time no objection was taken to the listing of these matters together. In light of the intervening preliminary objection however, the Board did not hear any arguments dealing with, and has not dealt with or ruled upon the complainant's request for consolidation.

3. Before addressing the preliminary objection we hereby grant to the complainant leave of the Board to withdraw the complaint filed in Board File No. 2804-87-U. Similarly, at the subse­quent request of the complainant contained in the letter dated July 18, 1988, we hereby grant to the complainant leave of the Board to withdraw the allegations contained in Board File No. 2806-87-U relating to the grievor Rick Vandale.

4. For the purpose of dealing with the respondent's preliminary objection the parties were in substantial agreement on the facts although each party sought to put its own "gloss" on those facts. The following are the basic facts upon which the parties agreed.

5. The UFCW Local 175 had a collective agreement with Cuddy Food which, on its face, applied to persons employed in the bargaining unit in the City of London, Ontario. At the time that collective agreement was negotiated, Cuddy Food operated two plants in the City of London. The collective agreement expired February 7, 1987 and the UFCW and Cuddy Food commenced negotiations for a new collective agreement. Whilst those negotiations were in progress, Cuddy Food commenced to operate a third plant, at 10 Cuddy Blvd. also in the City of London. There­after the UFCW entered into two separate agreements with Cuddy Food. One collective agree­ment covered the two plants which had been in existence, while the other collective agreement covered only the employees at the new location at 10 Cuddy Blvd. The latter collective agreement, which was signed July 30, 1987, has a duration clause which states that it is effective from June 1, 1987 until May 30, 1989. The 10 Cuddy Blvd., London, Ontario plant commenced operations in late March, early April 1987. The RWDSU applied to be certified as bargaining agent of the employees at 10 Cuddy Blvd. on August 20, 1987 (Board File 1363-87-R). The UFCW intervened in that application and responded that it represented the employees at 10 Cuddy Blvd. and that the existing collective agreement constituted a bar to the RWDSU's application for certification.

6. In October 1987, the Board also received a complaint filed pursuant to section 89 of the Act in which a number of employees at 10 Cuddy Blvd. alleged that the UFCW was in breach of its section 68 duty of fair representation (Board File No. 1928-87-U). 'The relief requested in that complaint included a request that the collective agreement between Cuddy Food and the UFCW be set aside, or otherwise that an open period be found in order to permit the RWDSU's applica­tion for certification to be dealt with by the Board.

7. Both those matters proceeded to hearing before a differently constituted panel of the Board. On November 27, 1987, during the course of those hearings, the Board rendered an oral ruling which has not yet been reduced to writing. The parties agreed, however, that the essence of the oral ruling was that the collective agreement which existed between the UFCW and Cuddy Food "did constitute a bar to the RWDSU's certification application subject to the outcome of the section 68 complaint." The certification application, however, was not dismissed because, accord­ing to the complainant in these matters, the only issue determined by that panel of the Board was that the existing collective agreement was not a "voluntary" recognition agreement pursuant to section 60 of the Labour Relations Act and therefore did constitute a bar, subject to the final dispo­sition of the section 68 complaint. It cannot be said that before us all of the parties concurred with this latter assertion. The hearings into the RWDSU's certification application and the section 68 complaint were completed on May 30, 1988. A decision on those matters has not yet been ren­dered. During the relevant period of time, the UFCW and Cuddy Food have continued to apply the terms and conditions of the collective agreement, i.e., dues have been deducted and remitted to the UFCW, grievances have been filed, some of which have been referred to arbitration. We note also that each of the complaints before this Board was filed after the Board had rendered its oral decision that the collective agreement constituted a bar to the R'WDSU's application for cer­tification.

8. Those are the basic facts upon which the parties agreed. To those facts we find it neces­sary to provide some details about the nature of these eleven complaints prior to addressing the submissions of counsel. Each complaint is made by the RWDSU on behalf of itself and certain named grievors who allege that they have been improperly laid off, have improperly received a verbal or written reprimand, have been denied bereavement pay, have had seniority improperly calculated, or have been demoted or discharged. In each complaint the complainant alleges a viola­tion of section 79, the statutory freeze. The thrust of this allegation consists of an assertion that action taken was contrary to the provisions of the collective agreement, the terms of which are sta­tutorily frozen by the RWDSU's application for certification. Each complaint however also con­tains an allegation that Cuddy Food took the action complained of because of the grievors' support for the complainant union. Only some of the complaints specifically plead that the action com­plained of was motivated by anti-union animus. Many of the complaints plead that specific action was taken because the affected grievors were "open and vociferous supporters of the complain­ant." Other complaints refer to the fact that the penalty imposed was due "in part" to the grievor's support for the complainant, or "partly because of his union sympathies and involvement", while some plead that action was taken "solely because" of the grievor's sul)port for the complainant. In each complaint therefore there is an added allegation that the actions taken were in violation of section 64 of the Act. Four of the remaining ten complaints also refer to section 66 and section 70 of the Act and allege those sections to have been violated by the respondent's conduct.

9. Within this factual framework we now turn to briefly outline the submissions of counsel. Counsel for the respondent employer based his preliminary objection on three primary grounds, all of which are somewhat intertwined and interrelated. Counsel submitted that pursuant to section 89 the Board has discretion to refuse to inquire into a complaint. Counsel asked this Board to refuse to inquire into these complaints because (a) the complainant has no standing to bring these allegations, (b) the individual grievors named in each of the complaints have an equivalent, alter­native remedy available under the collective agreement and (c) the complaints by the very nature are an abuse of process. In respect of the first of these two grounds, counsel submitted that as of November 27, 1987, by virtue of the Board's ruling, the RWDSU had no legal "interest" in repre­senting the employees. As of that date the Board had determined the status of the UFCW's right to represent employees at Cuddy Food and the status of the collective agreement between the UFCW and Cuddy Food (although that agreement was subject to the ultimate disposition of the section 68 complaint). The Board had determined the UFCW's right to represent the employees at 10 Cuddy Blvd., and had determined the existence of the collective agreement (albeit subject to the section 68 complaint) which acted as a bar to the RWDSU's assertion of a right to represent these employees. Counsel submitted that as of that date, therefore, the RWDSU became a legal stranger to the employment relationship which Cuddy Food has with its employees. That relation­ship is presently governed by the existing collective agreement. The RWDSU's right to represent these employees is no greater than the rights of the individual aggrieved persons under the existing collective agreement. Counsel alleged that the substance of what the RWDSU was attempting to do under the guise of these section 89 complaints, was to continue to attempt to represent the employees notwithstanding the Board's ruling that it did not have such a right to represent employ­ees because of the existence of the UFCW collective agreement which acted not only as a bar to the RWDSU's application for certification, but also acts as a bar to RWDSU's right of representa­tion. Counsel emphasized that the essence of each of the complaints was contractual in nature. He argued that the RWDSU was trying to usurp the role that the UFCW has under the collective agreement - a collective agreement which to date has not been ruled invalid. Counsel argued that as the complaints are substantially contractual in nature, and as the RWDSU can have no greater right than the individual grievors to enforce those contractual rights, the most appropriate forum to determine these matters was the grievance and arbitration process of the collective agreement.

10. In respect of his argument that the complaints were an abuse of process, counsel argued that some of the complaints were clearly spurious consisting as they do of complaints arising out of verbal warnings given to employees for working slowly, for smoking in the washroom, for refusing to work overtime, for going from one area of the plant to another without permission, and written warnings to an employee who had been absent without leave for two days, or written warnings to other employees for alleged contamination of food product being processed. He asserted that the remaining complaints alleged violations of the call-in, layoff or seniority provisions of the collective agreement but that none of these complaints were the "usual" section 89 complaints "normally" brought before the Board as a result of a union's organizing drive. He emphasized that the "vul­nerable period" for the employees had passed by the time the first complaint was filed in Decem­ber 1987. The thrust of his argument appears to be that, given the nature of the complaints, and given that the timing of the complaints post-dated the Board's ruling in respect of the RWDSU's application for certification, one could only assume that the complaints were filed for political rea­sons in order to assist the complainant in maintaining a presence at the plant. He essentially argued that the Board ought not to countenance the RWDSU's attempt to seek legitimacy through the use of the section 89 complaint process in this manner.

11. Finally, counsel submitted that the statutory freeze is a neutral factor meant to preserve the status quo and thereby protect each of the parties to these proceedings - the UFCW as well as the RWDSU and the respondent employer. In support of all of these submissions counsel relied upon the Board's decision in Valdi Inc., [1980] OLRB Rep. Aug. 1254.

12. Counsel for the intervener UFCW sought to characterize the intervener's position as being, colloquially speaking, between a rock and a hard spot. He asserted the UFCW's right to represent these employees, asserted its collective agreement with Cuddy Food, and asserted the UFCW's obligation to properly represent the employees in accordance with that collective agree­ment and the provisions of the Labour Relations Act. At the same time, counsel acknowledged the Board's authority to inquire into matters where allegations of anti-union animus and resultant vio­lations of the Labour Relations Act were involved. For his part, he proposed that in those cases where anti-union animus was alleged, the Board ought to proceed with its inquiry insofar as a vio­lation of the Labour Relations Act was alleged. He submitted, however, that if the incident giving rise to the complaint was contractual in nature, the affected employees ought to grieve and the Board ought not to inquire into those matters. He stated that in those instances the RWDSU was interfering with the UFCW's right to represent the employees. Counsel indicated that the UFCW was willing to assist these individual complainants in the preparation of their grievance and to assist them throughout the grievance procedure. Counsel stopped short, however, of guaranteeing that all complaints would be brought to arbitration. Finally, counsel for the UFCW raised the concern that in some instances the individual complainants had also filed concurrent grievances which were in process or which were to proceed to arbitration. He cited the obvious policy reasons against con­current procedures. Other than the complaint of Mr. Vandale however, the parties did not provide to the Board any clear indication as to which of these complaints was also the subject of a concur­rent grievance.

13. In response to these submissions, counsel for the complainant asserted that it had the right to prosecute actions taken against its members by reason of their union membership. Counsel pointed to what he termed as a "common thread", namely that persons known to be RWDSU sup­porters were being discriminated against. Counsel alleged a pattern of harassment against RWDSU supporters and argued that the RWDSU had an interest, and the requisite status to ensure that their members were not being discriminated against because of their membership in, or support of, the RWDSU. Counsel also submitted that a deferral to arbitration would not provide an adequate remedy as, for example, a board of arbitration was unlikely to direct the employer to stop harassing RWDSU supporters. Similarly, the board of arbitration could not resolve the dis­pute between the two unions. It is trite to say that the RWDSU is not a party to the collective agreement and would not be a party to the grievance and arbitration process under that collective agreement.

14. The leading cases in which the issue of when and under what circumstances the Board ought to defer to an alternative process continue to be Valdi Inc., [1980] OLRB Rep. Aug. 1254 and Imperial Tobacco Products (Ontario Limited), [1974] OLRB Rep. July 418. In Valdi the Board stated:

15. The issue of whether or not the Board should defer to grievance arbitration arises when an alternative remedy exists under a collective agreement which is available to the grievor or com­plainant. Although the complainant has chosen to seek its remedy before the Ontario Labour Relations Board, the Board has a discretion under section 79 to refuse to inquire into a com­plaint and the existence of an equivalent remedy under a collective agreement has, in the past, been a basis on which the Board's discretion has been exercised. In other words, the Board is not obligated to inquire into every complaint brought under section 79 and its refusal to so inquire cannot, therefore, be characterized as an improper refusal to exercise its jurisdiction. See Regina v. Ontario Labour Relations Board ex parte T. R. W. Electric Components Ltd. (1969), 1969 CanLII 233 (ON HCJ), 9 D.L.R. (3d) 669. On the other hand, it is the Ontario Labour Relations Board that is charged with the responsibility for administering The Labour Relations Act and the important rights it confers on employers and employees. This responsibility is a public duty and a policy of deferral to a more private process where the adjudicators are paid and selected by the parties to a collective bargaining agreement must find its justification within the four corners of The Labour Relations Act to be consistent with that public interest. To many, this justification is not readily apparent. See Bilkin, Are Arbitrators Qualified to Decide Unfair Labor Practice Cases? (1973), 24 Lab. L.J. 818; Simon-Rose, Deferral Under Collyer by the NLRB of Section 8(a)(3) Cases (1976), 27 Lab. L. J., 201; Newman, NLRB Deferral to Arbitration in Unfair Labour Practices (1973), 26 N.Y.U. Conf. on Lab. 37; and Comment, Deferral to Labor Arbitration (1975), 27 Hastings L.J. 403. Why, it can be asked, should the Board ever defer to a private arbitration where a question concerning the application of The Labour Relations Act arises? Arbitrators are expert on the language of collective agreements and do not, as a group, have the expertise in labour board statutory issues that the Board has necessarily acquired through a long, intimate and specialised experience with its statute. The involvement of arbitrators in stat­utory issues may well result in a lack of uniformity over the meaning of important provisions of The Labour Relations Act or encourage direct judicial construction of an extrinsic statute on an application for judicial review. See McLeod v. Egan, [1975] 1 5CR. 517. In contrast, the Ontario Labour Relations Board is an ongoing administrative agency whose jurisdiction is pro­vided for in the context of a privative clause. It, therefore, is able to achieve a uniform interpre­tation of the statutory provisions it considers. Indeed, the Board's experience in such matters provides the very justification for the statute's privative clause. There is also the possibility that the deferral of tough statutory questions to grievance arbitration will encourage lengthy, costly, complicated and legalistic hearings in that forum. This result would undermine the very features of grievance arbitration that underlie the policy of The Labour Relations Act requiring its inser­tion in every collective bargaining agreement. In fact, today, in contrast to Ontario Labour Relations Board proceedings, there is considerable doubt that grievance arbitration is suffi­ciently expeditious and inexpensive. Finally, there may be important procedural and remedial differences between the Ontario Labour Relations Board and grievance arbitration in any par­ticular case and, where this may be the case, a deferral to grievance arbitration could deprive a complainant of important statutory rights. For example, if a matter did not involve discipline or discharge, a complainant would not have the benefit in grievance arbitration of the reverse legal onus provided for under section 79 of The Labour Relations Act nor would he have access to the Board's expansive remedial powers provided for by this same section. Surely these factors are relevant to any decision by this Board to defer to another forum. And, it is against these consid­erations that some might ask the more fundamental question of what business does the Ontario Labour Relations Board have in the "subcontracting" of any public authority to private tribu­nals?

16. The answer to this question depends upon the fact that the statute creating the Labour Rela­tions Board is the same statute that requires grievance arbitration of all disputes over the inter­pretation, application and administration of a collective agreement. On a review of The Labour Relations Act, it is difficult to conclude that grievance arbitration is simply a private process and that it is any less important than the Ontario Labour Relations Board in fostering industrial peace and facilitating co-operation between employees and employers. See Weiler, Reconcilable Differences, New Directions in Canadian Labour Law, (1980), chapter 3. Viewed in this light, a policy aimed an integrating their responsibilities and dealing with concurrent jurisdiction prob­lems is not as troublesome as it is in those situations where grievance arbitration shoulders a responsibility under a different or extrinsic statute. For example, in the latter situation the United States Supreme Court has said there should be a trial de novo under Title VII of the Civil Rights Act of 1964 even though the precise issue of racial discrimination has been submit­ted to final and binding grievance arbitration. See Alexander v. Gardiner-Denver (1974), 415 U.S. 36. But see also the NLRB's distinction in Electronic Reproduction Service Corp. (1974), 87 LRRM 1211 at 1218. Some perspective can be gained on the issue by looking at it from griev­ance arbitration's viewpoint and asking whether the express statutory policy of encouraging the practice and procedure of collective bargaining would be effectuated if this Board was to police all collective agreements to decide if disputes over the meaning of these documents also consti­tuted a violation of The Labour Relations Act? We think not. Moreover, the complete absence of a deferral doctrine means that parties would face the prospect of incurring the expenditure of time, money and their patience in two proceedings - a prospect unlikely to contribute to a healthy collective bargaining relationship. In addition, there is no longer any doubt that labour arbitrators have the jurisdiction and duty to consider public statutes that bear on the questions brought before them (unless the statute specifically provides otherwise) and there is consider­able evidence that the arbitrators active in Ontario are not strangers to the provisions of The Labour Relations Act and the underlying policies. See McLeod v. Egan, supra, and, for exam­ple, arbitration cases considering whether a collective agreement exists in light of the provisions of The Labour Relations Act. Automatic Screw Machine Co., Automotive Hardware Ltd. (1970), 1970 CanLII 1634 (ON LA), 21 LAC. 255 (Shime); Loblaw Groceterias Co. Ltd., (1972), 1972 CanLII 1980 (ON LA), 24 LAC. 369 (Shime). But see Canada Labour Code R.S.C. 1970 c. L-l as amended, s. 54. Grievance arbitration is an institu­tion centered on achieving industrial self-employment and has played a vital role in reducing industrial strife. See Arthurs, "Developing Industrial Citizenship: A Challenge for Canada's Sec­ond Century" (1967), 45 Can. Bar. Rev. 786; Cox, "Reflections on Labor Arbitration" (1959), 72 Harv. L. Rev. 1482; Adams, "Grievance Arbitration and Judicial Review in North America" (1971), 9 Osgoode Hall L.J. 443; Weiler, "The Role of the Labor Arbitrator: Alternate Versions" (1969), 19 U. Tor. L.J. 16. Moreover, recent legislative change has sought to insure that arbitra­tion remains a relatively inexpensive and expeditious process and the courts now evidence a willingness to defer to arbitral decisions save in the most exceptional circumstances. See The Labour Relations Amendment Act, 1979 SO. 1979, c. 32. And see generally: Douglas Aricraft Co. of Canada Ltd. v. McConnell et at. (1979), 1979 CanLII 51 (SCC), 99 D.L.R. (3d) 385 (5CC.); Heustis v. New Brunswick Electric Power Commission (1979), 98 D.L.R. (3) 622 (5CC.); Association of Radio & Television Employees of Canada CUPE-CLC) v. Canadian Broadcasting Ltd. (1973), 1973 CanLII 182 (SCC), 40 D.L.R. (3d) 1 (S.C.C.); Bell Canada v, Office and Professional Employees International Union, Local 131 (1973), 1973 CanLII 18 (SCC), 37 D.L.R. (3d) 561 (5CC.). When deferral is looked at in this light, it becomes less self-evident that a policy of giving full play to a process of dispute resolution manned and administered by the parties is inconsistent with the Board's broad statutory man­date aimed at encouraging the practice and procedure of collective bargaining. This is particu­larly the case if the Board's mandate is viewed not so much in terms of a proprietary interest in its unfair labour practice jurisdiction, but rather in the realization that the purpose of that juris­diction is to contribute to labour relations stability and harmony. Accordingly, the arguments for and against a policy of deferral to grievance arbitration rely upon significant but conflicting values and this conflict in values, unsurprisingly - has established a "discretionary balance" on deferral questions. The Board will defer but deferral, either before or after arbitration is in no way automatic.

17. It may be that the Board's approach has been somewhat less refined but the American treat­ment of deferral issues is not inconsistent with Board jurisprudence. Cases like Canadian Acme Screw and Gear Limited (1954), 54 CLLC ¶17,0483; John Inglis Co. Ltd., (1953), 53 CLLC ¶17,049; National Showcase Co. Ltd. (1961), 61 CLLC ¶16, 185; Heist Industrial Services Ltd. (1963), 63 CLLC ¶16,263; Wallace Barnes Co. Ltd. (1961), 61 CLLC, ¶16.198 and Collingwood Shipyards, [19671 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 procedures for dispute settlement where they have created. See Kodak Canada Ltd., [1977] 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 mater 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., [1980] OLRB Rep. Feb. 264 and the latter can be seen in New Gregory House, [1977] 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 the forum ceruld 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 nor 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 are explicitly with the unfair labour practice issues.

18. Although this case, as others, refers to the issue as a "deferral to arbitration", the more appropriate terminology to be employed is a deferral to the grievance and arbitration "process" of the collective agreement. In this instance for example, although the UFCW indicates a ready will­ingness to assist the grievors named in the complaints in the filing and processing of their grievance pursuant to the provisions of the collective agreement, the UFCW would not guarantee that it would necessarily take each grievance to arbitration. Instead, the UFCW indicated that the deci­sion as to whether to proceed to arbitration in any particular case would be based on the type of criteria usually employed by the UFCW in making such determination, i.e., presumably such fac­tors as the cost of proceeding to arbitration, likelihood of success, the "seriousness" of the griev­ance, including the severity of the discipline imposed, impact upon the bargaining unit as a whole, etc. The UFCW's determination as to whether to proceed or not proceed to arbitration would however be subject to scrutiny pursuant to section 68 of the Act.

19. Returning for a moment to the principal issue of when and under what circumstances the Board ought to defer to the process specified in an existing collective agreement, we note that in an earlier decision of the Board the chairman of the Board in Valdi stated:

While the Board wishes to go on record as saying it is not obligated to defer to that process in that a breach of the Act or an alleged breach of the Act is a matter within the jurisdiction of the Board -- the agency charged with the responsibility of administering the legislation -- the Board has chosen to exercise its discretion under section 79 by deferring to grievance arbitration in appropriate circumstances. These circumstances generally involve the allegation of an unfair labour practice that constitutes, at the same time, an alleged breach of a collective agreement. Because the legislation has imposed grievance arbitration upon the parties to a collective agree­ment where differences arising between them relating "to the interpretation, application or administration" of the agreement, the Board has wisely decided to refrain from intervening under section 42 or under any other more prohibitory sections of the Act.... Any other course might undermine the important values of the grievance arbitration process - a possibility the Legislature clearly intended to avoid.

But in deferring to arbitration the Board has always assumed that arbitration would effectively resolve both the unfair labour practice alleged and the violation of the collective agreement.

See Imperial Tobacco Products (Ontario Limited), [1974] OLRB Rep. July 418 at 433-434.

17. In the circumstances of this case, we are of the view that a deferral to the process defi­ned in the collective agreement will not "effectively resolve both the unfair labour practice alleged and the violation of the collective agreement." Moreover, in the circumstances of this case, such deferral is inconsistent with the public interest and with the Board's ultimate responsibility to administer the Labour Relations Act and the rights which are conferred upon employers, employ­ees and trade unions under that Act.

18. We start our analysis with the proposition that in the absence of allegations of unfair labour practices against the company, a trade union seeking to displace an incumbent union ought not to come before the Board alleging a violation of the statutory freeze based solely on an alleged violation of the collective agreement. Where, as is the case before us, a collective agreement is in existence, the "status quo" for purposes of the statutory freeze includes (but is not always limited to) the terms and conditions of the subsisting collective agreement (or the recently expired collec­tive agreement). If the only violation of the statutory freeze is an allegation that the employer has failed to comply with a subsisting (or recently expired) collective agreement then that alleged viola­tion of the collective agreement is a proper matter for the grievance and arbitration process spe­cified in the collective agreement. The incumbent's rights and obligations to enforce its collective agreement remains intact until the displacement application has been finally dealt with, and those rights and obligations cannot be circumscribed by the "raiding" union under the guise of an unfair labour practice complaint alleging a breach of the statutory freeze. This flows from the operation of section 56(1) of the Act which states:

56.-(1) If the trade union that applies for certification under subsection 5(4), (5) or (6) is cer­tified as bargaining agent for any of the employees in the bargaining unit defined in the collec­tive agreement, the trade union that was or is a party to the agreement, as the case may be, forthwith ceases to represent the employees in the bargaining unit determined in the certificate and the agreement ceases to operate in so far as it affects such employees.

19. A certification application which involves the displacement of an incumbent trade union may trigger section 79(2) (see Manuel DaSilva, [1984] OLRB Rep. June 834). The displacement application may or may not be successful. The effect of section 56(1) is to formalize the result in those cases where the displacement application is successful. Without section 56(1) there would be two bargaining agents representing the employees, and perhaps two collective agreements in respect of that same bargaining unit. Section 56(1) avoids such a situation by formally terminating the bargaining rights of the incumbent and by rendering the collective agreement of the incumbent inoperative. The use of the word "forthwith" however clearly indicates that such formal termina­tion takes place only upon the certification of the "raiding" union. Until then, the incumbent con­tinues to represent the employees in the bargaining unit subject always to the duty of fair represen­tation pursuant to section 68 of the Act.

20. In the abstract, we are not prepared to assume that an incumbent union will fail in its section 68 duties or will fail to properly promote the interest of aggrieved persons through the grievance and arbitration process. In this case, we are particularly reluctant to cast such an asper­sion upon the integrity of the incumbent union (a) in the absence of arty pleading or suggestion that the incumbent union has engaged in collusion or connivance with the respondent employer with respect to the actions taken by the employer and (b) in light of the incumbent union's specific undertaking to assist the aggrieved persons in the filing and processing of their grievances in accor­dance with the collective agreement and subject to their duties under the Labour Relations Act.

21. In paragraph 17 we noted that the "status quo" of the "statutory freeze" is not neces­sarily limited to the terms and conditions contained in the subsisting (or recently expired) collective agreement although those terms and conditions do undoubtedly form part of the freeze. In our opinion, the statutory freeze goes beyond wages or the strict terms and conditions contained in the collective agreement. Undoubtedly, the starting point for determining the content of the freeze is a collective agreement, but that is not to say that the collective agreement comprises the sole source of the "wages or any other term or condition of employment or any right privilege or duty of the employer, trade union or the employees." It may be that the employees enjoy a "right" or "privi­lege" which is not specifically spelled out in the collective agreement. Denial of such a right or privilege therefor cannot always be redressed through the filing of grievances. It would appear that in those instances it would be equally open to both the incumbent and the raiding union to file a complaint alleging a breach of the statutory freeze. In this regard, we agree with the decision of the Board in the case of Manuel DaSilva Foods Limited, [1984] OLRB Rep. June 834 where it was stated:

22. . . The purpose of section 79(2) is to preserve the established framework of the employment relationship - including privileges - until an applicant union's certification application has been disposed of. It maintains the status quo while representation questions are being resolved and is intended, primarily, to protect the position of an applicant union. We see no basis for the sub­mission that some certification applications trigger the freeze while others do not. If the Legisla­ture had intended to exempt displacement applications from the ambit of section 79(2), appro­priate language could easily have been included to effect that purpose. No such language is present and from a policy point of view, we see no sound basis for distinguishing between unor­ganized situations where the status quo must be maintained and "raids" where, it is said, the situation can fluctuate. If stability is a desirable objective, it is equally desirable in both situations. In our view, once the terms of the section have been met, the freeze is triggered.

23. We are not persuaded that the Board should defer this question to arbitration. In the first place, what we are dealing with here are statutory rights under section 79(2), not, strictly speak­ing, contractual rights under the collective agreement. Moreover, those rights are being asserted by the UFCW, which is not a party to that collective agreement, which is not in a position to invoke the grievance procedure or influence a process by which any grievance might proceed to arbitration and which probably has no status to participate in the arbitration proceeding. By the time of the hearing, CURRE had not even filed a grievance on the employee's behalf, nor was it able to identify or articulate any contractual basis for doing so. In our view, it would be inappro­priate to defer a claim by the UFCW based upon an alleged statutory violation to a private forum where the UFCW's status is uncertain and which is controlled by the employer and the intervener - both parties adverse in interest to the UFCW in the certification proceeding which triggered the freeze in the first place Why should the complainant have to depend upon them for its remedy? We also note that section 79(3) contemplates an arbitration option for the resolu­tion of freeze questions arising under section 79(1) and there is no similar procedure contem­plated in respect of alleged breaches of section 79(2). The wording of section 79(3), by implica­tion, suggests that section 79(2) questions should be resolved by this Board.

See also Sunnybrook Foods Limited, [1985] OLRB Rep. Feb. 337.

22. In this case, we agree that the complaints are certainly contractual in nature. Indeed, this much appears to be acknowledged in the complaints themselves insofar as each alleges viola­tions of the terms of the collective agreement "which have been frozen by virtue of section 79 of the Act." We are not faced, however, only or merely with allegations of a violation of the statutory freeze based solely on the terms and conditions of the collective agreement. The complainant has specifically pleaded that the actions about which it complains were taken by the respondent against the complainant's members because of their membership in, or support for the complainant. The complainant's position as disclosed in the pleadings and as argued before us is that Cuddy Food has engaged in a course of conduct against RWDSU supporters in a manner which does, or is designed to "interfere with the formation, selection or administration of the trade union" (section 64); that Cuddy Food has "discriminated against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union (the RWDSU) or was or is exercising any other rights under this Act", i.e., the right to assist in the displacement of the incumbent union (section 66(a)); that Cuddy Food has sought by "intimidation or coercion to com­pel any person to...refrain from exercising any other rights under this Act...", i.e., the right to assist in the displacement of the incumbent union or to select the RWDSU as their bargaining agent (section 70). It may be that in the final analysis the RWDSU will be unable to prove these allegations. At this stage, however, we are not prepared to say that the complaints are frivolous or vexatious and without a factual or legal basis. That is a matter ultimately to be determined on the hearing of the merits. The Board does, however, have a significant interest, indeed, a statutorily imposed duty, to ensure that in circumstances such as these, where one union is seeking to displace another, the employees are operating in a work environment and atmosphere which permits the employees to join the trade union of their choice -- whether that union is the incumbent union or the union seeking to displace the incumbent. The public interest in ensuring that employees are free to make such a choice is paramount to the Board and cannot necessarily be addressed through the more private grievance and arbitration process found in the collective agreement.

23. In addition to the public interest component of this case, it is apparent that in the cir­cumstances of this case the remedies available to the complainant and the aggrieved persons should these matters be deferred may be inadequate. During the course of his submissions, counsel for Cuddy Food referred to the aggrieved persons as having "mis-elected" - although they could have grieved they chose not to do so. Those employees must now bear the consequences of that mis-elec­tion. His response to a question from the Board as to whether the employer would seek to rely on any timelines arguments should we determine to defer to the process under the collective agree­ment was such as to indicate that the respondent employer did not appear to be prepared to waive its rights to raise timeliness arguments which would impact upon the arbitrability of any grievances filed. A deferral to the process in light of such a submission would therefore be illusory. The Board will not normally defer to the process under the collective agreement without assurances that the aggrieved persons have access to that process and have full opportunity to seek redress under that process or obtain a remedy using that process.

24. Similarly, and as was stated by the Board in the Valdi Inc. case, the "OLRB has an expansive remedial jurisdiction and most recently has developed a fairly sophisticated array of remedies including the posting of notices for the benefit of bargaining unit employees who may have been collaterally affected by an unfair labour practice directed at a fellow employee". The remedy of a posting is unlikely to be awarded by a private board of arbitration selected or appointed under the collective agreement.

25. Our comments in respect of the possible inadequacies of the remedies available under the collective agreement process in the circumstances of this case are not meant to indicate a blan­ket acceptance of any argument that a deferral to the collective agreement process is inadequate because the RWDSU is not a party to the collective agreement, cannot invoke the grievance proce­dure or otherwise influence that procedure, and does not have the status to participate in that pro­cess. In this case, we find that the determination of significant statutory rights of the RWDSU, as well as the statutory rights of the employees underlie these complaints. In the absence of issues raising such significant statutory rights, and as indicated in paragraph 19 herein, we are not pre­pared to assume that the UFCW is unable or unwilling to seek full redress for aggrieved employ­ees. In this regard, we concur with the early decision of the Board in Collingwood Shipyards, [1967] OLRB Rep. July 376. Although not cited in argument, that case involves circumstances sim­ilar to the case before us. There, five persons alleged that they had been discharged because of their membership in and support of a union seeking to displace an incumbent union. In dismissing the complaint the Board stated:

26. The complainant argued that even if the Board were to assume that the United Steelworkers of America would be "god-like" in the presentation of the arbitration case, which on the surface would appear to be contrary to their best interests, there are special circumstances in this case which distinguishes this case from the cases on which the respondent relied. The complainant argued that since it was not a party to the collective agreement no remedy was available to it under the collective agreement and CNTU is not a party to the arbitration proceedings. In addi­tion, the complainant argued that the relief available to the aggrieved petsons before the arbi­tration board is limited to the provisions of the collective agreement between Local 6320 and the respondent.

27. CNTU is a party to the proceedings in this case in a representative capacity. The rights of CNTU in proceedings before this Board under section 65 are no less nor are they any greater than the rights of the individual aggrieved persons whom CNTU represents.

28. There has been no allegation that the Untied Steelworkers of America have engaged in col­lusion or connivance with the respondent with respect to the actions taken by the respondent. It must be remembered that the individual grievors each signed a grievance which resulted in the arbitration proceedings whieh are pending. The aggrieved persons continue to be represented by the United Steelworkers of America which is a party to a collective agreement with the respon­dent, which provides in part that should "differences or disputes arise between the Company or any official of the Company and any Employee or group of employees regarding the interpreta­tion or application of this agreement or for any other cause", such differences or disputes should be settled by the grievance or arbitration procedures provided in the collective agreement. The parties to the collective agreement are currently processing the dispute with respect to the aggrieved persons in accordance with the provisions of the collective agreement. This procedure is not only authorized by the collective agreement but is in accordance with the expressed intent of the Labour Relations Act under which the United Steelworkers of America is recognized as the sole and exclusive bargaining agent of the persons covered by the collective agreement.

29. The fact that CNTU is not a party to the arbitration proceedings is not a matter with which this Board can be concerned. As stated in Re Hoc gendoorn v. Greening Metal Products and Screening Company et al 1967 CanLII 28 (ON CA), 1967 1 OR. 712 at 728, "an award given in pursuance of arbitration provisions of a collective agreement is not open to attack merely because interest adverse to the grieving union, other than the employer, were not represented."

30. We recognize that, in view of the allegations made by the complainant on behalf of the aggrieved persons, the United Steelworkers of America may find themselves in a most unenvia­ble position in the arbitration proceedings. The United Steelworkers of America may be subject to the accusation that they did not lend their full support to the aggrieved persons in the arbitra­tion proceedings unless the result is completely favourable to the grievors. Although invited to do so, this Board is not prepared to assume that the United Steelworkers of America will fail to fairly promote the interests of the aggrieved persons in the arbitration proceedings. This Board is also not prepared to assume that the arbitration Board will not make its award in accordance with the principles of natural justice. The Labour Relations Board is not empowered to sit in appeal on the arbitration board nor is it fitting that it should in any way impugn the composition of the arbitration board or any decision of the arbitration Board. It would be even more repre­hensible for this Board to do so prior to the arbitration Board herring the matter and arriving at its decision.

31. If the United Steelworkers of America does not press the arbitration proceedings to a con­clusion, or if it can be established that there has been a breach of duty of good faith representa­tion by the United Steelworkers of America in the arbitration proceedings, or if the arbitration board finds on the evidence that it is without jurisdiction to deal with the matter, as the com­plainant suggests may happen, then in such circumstance, this Board may (although we have not so decided) entertain this complaint pursuant to the provisions of section 65 of the Act. How­ever, until such time as the above events or events of a similar nature have been taken place the complaint by the complainant is untimely and cannot be entertained.

From a reading of the case it would appear that the primary reasons why the Board dismissed that complaint, and thereby in effect deferred to the collective agreement process, was because the five aggrieved persons had filed concurrent grievances which were already proceeding to arbitration.

26. Similar circumstances led to a similar result in General Bakeries Limited, [1967] OLRB Rep. Jan. 823, another early decision of the Board. Upon a request for reconsideration of that decision the Board stated:

27. The basis for the request is that the bargaining rights of the union may be terminated or that the union may not press the arbitration proceedings to a conclusion.

28. The fact that something may or may not happen in the future is not a reason in our view for changing our original decision in this matter. It may be, although it is not necessary for us to decide at this time and we do not do so, that if the bargaining rights of the union are in fact ter­minated and/or if the arbitration proceedings are not processed further, the complainant would have the right to request reconsideration or file a new complaint.

A third decision of the Board dealing with similar facts can be found in Sunnybrook Food Market (Keele) Limited, [1972] OLRB Rep. March 210. There the Board dismissed the application stating that the complaint by the complainant was "premature", the aggrieved persons had not yet filed grievances under the collective agreement. The Board stated that:

3. If, however, the aggrieved persons attempt to file grievances under the collective agreement above referred to and Local 206 refuses to process their grievances or if it can be established that there has been a breach of duty of good faith representation by Local 206 or if it can be established that Local 206 and the respondent have engaged in collusion or connivance with respect to the actions taken by the respondent, this Board may (although we have not do decided) entertain this complaint pursuant to the provisions of section 79 [now section 89] of the Act. However, until such time as the above events or events of a similar nature have taken place, the complaint by the complainant in this matter is premature and cannot be entertained.

4. Notwithstanding these earlier decisions of the Board (none of which were referred to by counsel in their argument), in the circumstances of this case, and in light of the alleged violation of significant statutory rights, we find that this is not an appropriate case for the Board to defer to the process established under the collective agreement. The Board will therefore hear this matter on its merits.

5. We wish to emphasize that a ruling on this preliminary motion should not in any way be construed as a prejudgment of the merits of the complaints, nor should it dissuade the parties from attempting to settle this case without resort to further litigation. It may be that the parties can ami­cably resolve the matters in dispute. After having digested the pleadings, we might observe that compared to problems normally raised during the course of a union's organizing driving, and cer­tainly compared to the problems raised in the other proceedings involving these parties, the issues in this case appear to be relatively minor. We use the word "minor" not to denote that the issues are unimportant or insignificant to the complainant or the aggrieved employees. Not having heard the merits of the case, we certainly do not agree with counsel's comments that these claims are "spurious". What may appear to be a minor problem or "spurious" to one person can nevertheless be a significant or major issue to the persons affected. We merely observe that in our experience the issues in this case appear to be such that some acceptable settlement which will avoid the expense and uncertainty of litigation may be a possibility.

6. The matter is referred to the Registrar for rescheduling.