[1998] OLRB REP. JANUARY/FEBRUARY 35
0080-97-OH Steven Karikas, Applicant v. Honeywell Limited/Honeywell Ltee., Responding Party v. National, Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 80, Intervenor
BEFORE: Kevin Whitaker, Vice-Chair.
DECISION OF THE BOARD; January 22, 1998
I
- This is an application pursuant to section 50(2) of the Occupational Health and Safety Act (the "OHSA"). By oral decision dated July 3, 1997 and reproduced in a written decision of the Board dated July 11, 1997, this application was dismissed. The application was dismissed on the basis that the applicant has elected under section 50(2) of the OHSA to proceed with this matter by way of arbitration rather than before the Board. What follows are the reasons for the dismissal.
II
The applicant was employed as a Fourth Class Operating Engineer with the respondent from October 28, 1976 to June 28, 1996. Generally speaking, the applicant's job was to be responsible for the power house mechanical rooms and related equipment. He was employed at the respondent's plant at 740 Ellesmere Road. The applicant's bargaining agent was the National, Automobile, Aerospace, Transportation and General Workers Union of Canada, Local 80 ("CAW").
In early 1988, the applicant suffered a compensable back injury. He received benefits and treatment from the Workers' Compensation Board from February 1988 for a period of approximately six months.
Between the time of his back injury and the summer of 1996, the applicant was provided at various times with light duties in an effort to accommodate his disability. During this period on a number of occasions, the applicant sought to protect himself by bringing to the respondent's attention, particular work assignments that he was not able to perform, or restrictions that were placed on his ability to work as a result of his disability. The applicant claims that in bringing these matters to the attention of the respondent, he was exercising rights under the OHSA.
The applicant alleges that the respondent committed a number of reprisals against him for having exercised his rights under the OHSA.
In April 1996, the respondent decided to relocate its operations from Ellesmere Road to 35 Dynamic Drive. The hot water heating system and the compressed air systems at the new location did not require the services of operating engineers. As a result, all operating engineers employed by the respondent including the applicant were provided with written notice that their positions would become redundant. The applicant was invited to accept a severance package or to elect to exercise his recall rights.
The applicant was interviewed unsuccessfully for a number of other jobs with the respondent and eventually accepted an offer of severance.
Following his written acceptance of the severance offer, the applicant took the position that he was not competent to agree to the offer at the time of acceptance. In the applicant's view, he had been unjustly dismissed. It was also his theory that the respondent had in dismissing him, committed a reprisal against him in contravention of section 50 of the OHSA.
The applicant sought the assistance of the CAW to file grievances on his behalf. Three grievances were filed on August 13, 1996. These grievances dealt with the respondent's alleged reprisal conduct prior to the applicant having accepted the severance package as well as the issue of his termination. In November of 1996, the CAW Grievance Committee met to hear from the applicant as to why his grievances should proceed. The Grievance Committee decided not to proceed with the applicant's three grievances.
Following the decision of the Grievance Committee, the applicant appealed the decision within the CAW's internal appeal procedures. It is not apparent whether the applicant received a final disposition of his appeal.
On January 13, 1997, the applicant filed an application with the Board pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging that the CAW had breached its obligations pursuant to section 74 of the Act in failing to take his grievances to arbitration. The applicant in that matter seeks amongst other things, an order from the Board compelling the CAW to take his grievance forward to arbitration.
The parties are agreed that the subject matter of the applicant's three grievances are the same as the subject matter of this application. More specifically, that the respondent's treatment of the applicant amounts to an unjust dismissal, done as a reprisal against the applicant in addition to other reprisal conduct, for having attempted to exercise his rights under the OHSA. At the hearing, the applicant took the position that the remedy being sought through the application under section 74 of the Act and the grievances filed with the intervenor as against the employer, was the same remedy sought in the application under section 50 of the OHSA.
III
The respondent raised two preliminary objections to the matter proceeding under section 50 of the OHSA, one of which was that the applicant had already elected under section 50(2) of the OHSA to proceed by way of arbitration and for that reason, the matter should be dismissed. As I have dismissed the matter on this basis, it is not necessary to deal with the other preliminary objection raised by the respondent.
The basis of the objection on this point is that the applicant wishes by his own admission, to pursue two avenues before the Board, both of which are designed to achieve the same purpose. One avenue is the application under section 50(2) of the OHSA. The other avenue is the application under section 74 of the Act and the underlying grievances. It is argued that in making the application under section 74 of the Act, the applicant is electing under section 50(2) of the OHSA to proceed by way of arbitration. This has the effect of precluding the application under section 50(2) of the OHSA before the Board.
The respondent relies on the Board's decision in Reed Limited, [1978] OLRB Rep. Jan. 1 which deals with applications under what is now section 50(2) of the OHSA.
In Reed, supra, the applicants had filed grievances with their union that had yet to be processed through the grievance procedure. The respondent employer argued on a preliminary basis that the applicants had already elected under what is now section 50(2) to proceed by way of arbitration and that the application before the Board should be dismissed.
The Board rejected the respondent's suggestion that an election to proceed by way of arbitration had been made. At paragraph 13, the Board in Reed distinguished between circumstances where a grievance was initiated but had yet to be processed through the grievance procedure, and circumstances where the grievance procedure had been exhausted and the applicant had "authorized" the union to proceed to arbitration:
To adopt the approach argued by the respondent would force an employee to forego the grievance procedure entirely in order to preserve the right of recourse to the statutory procedure. Such a development, in our view, would not be desirable from an industrial relations perspective. If there exists a grievance procedure, employees should be encouraged to utilize that process before pursuing the statutory procedure. The Board, therefore, should not foreclose an employee from bringing a complaint before it simply because that employee has had his union take the matter through the grievance procedure. Once it is established, however, that the employee has authorized the union to take the matter beyond the grievance procedure to arbitration, the Board will not deal with any complaint relating to that matter. Whether the employee has chosen arbitration prior to or following the actual filing of the complaint with the Board, the Board will treat the employee as having elected arbitration, and as being bound by that election.
In Reed the Board determined in essence that once the grievance procedure was exhausted and the grievor still at that point took the position that the matter should proceed to arbitration (rather than just be processed through the grievance procedure), as a question of fact, an election had occurred.
In the present case, once the intervenor union decided that the applicant's grievances should not proceed to arbitration, the applicant filed an application under section 74 of the Act. As part of that application, the applicant requested by way of remedy that the Board order the trade union to proceed to arbitration with the applicant's grievances. As of the date of the hearing in this matter, the applicant was still persisting in this request despite his own admission that the same remedies sought there were being pursued in the application under section 50(2) of the OHSA.
IV
- In these circumstances, I find that the applicant has sought to compel the intervenor trade union to proceed with his grievances to arbitration. Once the application with respect to section 74 of the Act was made with the particular remedy sought, the applicant had committed himself to a course of action. As mentioned earlier, the applicant intended to proceed with the application under section 74 as of the date of hearing. In my view, the analysis in Reed applies here and I find that the grievor is in the same position with respect to his bargaining agent as if he had "authorized" it to proceed to arbitration following the grievance procedure. For these reasons, the application under section 50(2) of the OHSA was dismissed.