Errol McKenzie Kettell v. Fortinos Supermarket Limited, 1993 CanLII 7910

[1993] OLRB REP. OCTOBER 974

1480-93-U Errol McKenzie Kettell, Applicant v. Fortinos Supermarket Limited, Responding Party v. United Food & Commercial Workers International Union, Locals 175/633, Intervenor

BEFORE: R. 0. MacDowell, Alternate Chair, and Board Members W. N. Fraser and K. Davies.

APPEARANCES: Errol McKenzie Kettell appearing on his own behalf; Malcolm MacKillop, Lucy Caluori, Charles Alfano, Arnold Mooney and Dwayne Peterson for the responding party; Kelvin Kucey for the intervenor.

DECISION OF THE BOARD [ORALLY]; October 27, 1993

1. This is an application under section 91 of the Labour Relations Act. The applicant con­tends that the responding employer has contravened section 67 of the Act. The relevant provisions of the Statute read, in part, as follows:

91.-(1) The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.

67. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate 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 or was or is exercising any other rights under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to com­pel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

2. A hearing in this matter was held, in Toronto, on Wednesday, October 27, 1993. After receiving the parties' representations, the Board made the oral ruling set out below.

(1) There is really no dispute that the Board has jurisdiction to receive the parties' evidence and determine whether there has been a breach of the Labour Relations Act. However, the exercise of that jurisdic­tion is discretionary. Under section 91, the Board has a discretion whether or not to inquire into a particular complaint, and if it decides to do so, it controls its own practice and procedure - that is, it can decide when and how it will hear the parties' allegations.

(2) Having reviewed the material filed by the parties in this proceeding and considered their representations, we are not persuaded that the exercise of statutory rights is central to the current controversy -much of which has to do with work practices, work regulations, and the way in which employees have gone about their work. This is not like a discharge in the context of an organizing campaign where bar­gaining rights have not yet been established and employees may have real fear about their job security. Nor is this a new or fragile collec­tive bargaining relationship. The parties have an established collec­tive bargaining relationship and will soon be negotiating another col­lective agreement.

(3) This application raises no policy questions or issues central to the administration of the Labour Relations Act. There is nothing that requires the experience or expertise of the Labour Relations Board, nor anything to suggest that the Board is the preferred forum.

(4) The company's response to the applicant's alleged misconduct was a one-day suspension, so there is no continuing loss or hardship. The union is not deprived of the applicant's presence in the workplace, nor is the grievor or anyone else seriously impeded in the exercise of statutory rights. The employer and the terms of a collective agree­ment both recognize that union stewards are entitled to file griev­ances and pursue health and safety issues in the workplace. The com­pany acknowledges and agrees that employees cannot be disciplined or penalized for pursuing such claims.

(5) Interestingly, the union in this case is not the moving party and no one is pleading section 66 of the Act which deals specifically with interference with the representation of employees.

(6) We are satisfied that an arbitrator is fully empowered to consider and resolve the issues in dispute between these parties in this case - par­ticularly in light of the extended powers granted to arbitrators under Bill 40. Indeed, the jurisdiction of the Board of Arbitration would appear to be broader than that of the Labour Relations Board, because the collective agreement contains both a "no discrimination clause" and a "just cause clause". In an unfair labour practice, the Board's focus is trade union activity; while under this collective agreement, the arbitrator's focus can be what might be described as the "general justice of the grievor's treatment". Arbitration is read­ily available and we are not persuaded that there are any remedial difficulties or deficiencies.

(7) Finally, it makes no sense from either an economic or labour rela­tions perspective to multiply the layers of litigation, yet the union's position is that a two-stage process is necessary. We do not agree that such duplication is desirable. We are not persuaded that, at this stage, we should embark upon a parallel proceeding.

(8) While in another case it may be appropriate to re-visit [the Board's analysis in] Valdi, and explore the relationship between statutory rights and those under a collective agreement - particularly in light of Bill 40 - we do not think that this is the appropriate case to do so. For the foregoing reasons, this matter is adjourned, sine die, pending completion of the arbitration process. The Board will deal with the case after the arbitrator's decision if it is necessary to do so; and, for that purpose, the Board will remain seized. However, this particular panel will not be seized.

(9) Finally, lest there be any dispute about what has happened here today, we direct that a copy of this decision be posted on employee bulletin boards or similar places where they will come to the atten­tion of employees who might be interested.