[1997] OLRB REP. NOVEMBER/DECEMBER 994
2831-96-U; 2834-96-U National Automobile, Transportation and General Workers Union of Canada (CAW-Canada), Applicant v. Dover Corporation (Canada) Limited, Industrial Division, Responding Party
BEFORE: Bram Herlich, Vice-Chair.
APPEARANCES: Frank Luce, Linda Ackworth, Ron Joyal and Archie Bailie for the applicant; James A. LeNoury, Robert Pearson and Eugene Koszika for the responding party.
DECISION OF THE BOARD; December 5, 1997
After hearing and considering the parties' submissions regarding the motion brought by the responding party (the "employer") to dismiss these applications, I delivered the following ruling orally on December 3, 1997:
These applications were filed in December of 1996. A decision has issued in this matter wherein the Board (differently constituted) resolved certain issues on the basis of agreed facts and legal submissions.
The parties now agree that the matters remaining in dispute between them pertain essentially to the discharge of 4 employees shortly after the Board's direction that a first collective agreement between the parties be settled by arbitration (see Dover Corporation (Canada) Limited Industrial Division. unreported, November 22, 1996; application for reconsideration dismissed [1997] OLRB Rep. July/August 568; application for judicial review dismissed, as yet unreported, Court File No. 637/97, November 14, 1997) and to the claim of the applicant (the "union") that the employer's decision to remove certain machinery from the plant constitutes an unfair labour practice.
The parties advise that the hearing in the interest arbitration proceedings are scheduled to continue and will, in all likelihood, conclude on December 10, 1997.
The parties further advise that there are several fashions in which the decision of the interest board of arbitration (the "interest board") may impact on the matters currently before this Board.
For example, in relation to the removal of machinery, the union is apparently seeking a term from the interest board that all machinery be returned to the Strathroy plant.
With respect to the discharges there appear to be at least three different ways in which the award of the interest board may impact on the affected employees.
First, in what might be seen as a curious staking of positions, the employer asserted that the union's proposed Article 33.04 would, if adopted by the interest board, mean that the discharges would be nullified as a consequence. Completing the symmetry of unexpected positions, the union suggested that there might be numerous arguments available to negate any such conclusion. Perhaps more important in relation to the discharges, the union is seeking that the interest board either directly or indirectly provide access to a review of the discharges on a standard of just cause.
The employer argues that the union, having chosen to advance the proposals it has to the interest board, ought not to be permitted to proceed with this application before this Board. The union ought to be seen to have made an election and should not be permitted to pursue the same matter in a separate forum. The employer raises the spectre of dual proceedings and the possibility of inconsistent determinations.
Essentially, the employer argues that the union, by putting these issues before the interest board, has transformed them into "matters in dispute" within the meaning of section 43(12) of the Labour Relations Act, 1995 (the "Act"). As a consequence, the employer argues, those matters must now be determined by the interest board pursuant to that section.
In these circumstances, it is argued, the Board ought to dismiss the application and effectively require the union to live with the fruits of the interest board.
The employer relies on the case of Collingwood Shipyards, [1967] OLRB Rep. July 376. In that case the Board dismissed an application brought by a rival trade union in relation to discharges of employees who, it was alleged, were supporters of the rival union in its bid to displace the incumbent. The discharges had already been referred to arbitration by the incumbent union.
In those circumstances the Board determined that the application ought to be dismissed. It also referred to the incumbent union's obligation under section 74 as a control on the quality of the incumbent's representation of the grievors, a matter which may have been of some concern to the rival union and its supporters.
I am not persuaded that the case is of direct applicability to the instant facts. Perhaps the primary distinction relates to the fact that in the Collingwood case the Board had the complete confidence that, as a result of the availability of arbitration, the discharges in question would clearly be subject to adjudicative review. And while such a review ma), be the result of the interest board proceedings, there is no corresponding certainty in the present case. Recourse to and reliance upon the duty of fair representation is no substitute for access to arbitration and the benefit of the duty of fair representation available to the discharged employees in the Collingwood case.
There are, however, more significant reasons why it would be inappropriate to dismiss the application at this stage of the proceedings.
The interests, issues, and public policy concerns associated with the Board and interest arbitration proceedings are quite different. For example, while there is obviously some potential overlap or duplication in relation to the practical result, the question of whether a collective agreement ought to include terms requiring the return of machinery to the plant is quite different from the question of whether the removal of such equipment constitutes an unlawful lockout or other violation of the Act.
Similarly, the question of whether the discharges at issue can be supported against a standard of just cause is quite distinguishable from whether the same discharges are in violation of the "freeze" or other provisions of the Act. (In that regard it is significant to underscore that this Board has already determined that, in relation to the proceedings before this Board, there is no statuary basis for requiring this employer to justify the termination on either a just cause or cause standard per se.)
Neither am I persuaded that the union ought to be treated as having made its election. In this regard the provisions of the Act may be usefully distinguished from, section 50(2) of the Occupational Health & Safety Act (the "OHSA") which imposes a statutory right or obligation to elect as between arbitration and an application to this Board in relation to alleged violations of the OHSA. There is no such corresponding requirement in the Act.
The interest board is charged with settling the terms of the first collective agreement. This Board, more broadly speaking, is charged with administering and enforcing the protections of the Act. As employer counsel conceded, the interest board will not be charged with determining whether there have been violations of the Act.
In all of these circumstances I am satisfied that this Board has the jurisdiction to continue its inquiry into these matters. Neither am I persuaded that the Board ought to exercise whatever discretionary power it may have to dismiss this application at this stage of the proceedings.
The employer's motion is therefore dismissed.
However, having dismissed that motion I am equally persuaded that the dictates of some measure of rationality as well as concerns about sensible allocation of resources make it inadvisable to proceed with this matter now.
The award of the interest board may have significant impact on the present proceedings. It is not difficult to contemplate a range of possibilities. Not least among these is that some or all of the issues may be rendered moot. The interest board's award may otherwise significantly impact on the parties' appetites to continue the present proceedings.
In these circumstances and given the time frames involved, I am satisfied that it makes sense to defer any further reconsideration of the merits of this application.
I am advised that the interest board will likely conclude its hearings on December 10, 1997. This matter is scheduled to continue on January, 26, 27, and 28, 1998. It may well be that the results of the interest arbitration may be known to the parties at that time. Alternatively, the interest board may, in the circumstances, opt to insure that its decision, at least with respect to the issues which relate to the present application, is released to the parties in advance of the January 26 continuation date.
This matter is hereby adjourned until January 26, 1998. Although I have dismissed the employer's motion, such dismissal is, of course, without prejudice to the employer's right to argue how the Board ought or ought not to proceed in view of whatever the award of the interest board may be.
The parties are directed to advise the Board as to the status of this matter not later than January 22, 1998.