Ontario Labour Relations Board
File No.: 1247-00-U Date: October 10, 2000
Between: The Ontario Public Service Employees Union and its Local 420, Applicant v. Loyalist College, Responding Party.
Before: David A. McKee, Vice-Chair.
Decision of the Board
1This is an application brought pursuant to the Colleges Collective Bargaining Act, R.S.O. 1990 ch. C-15 as amended (”the CCBA”). It was originally filed as a complaint under the Labour Relations Act, 1995, S. O. 1995 ch. 1 ("the LRA"), brought pursuant to section 96 of the LRA alleging a violation of section 73. Pursuant to a decision of the Board (differently constituted) it is now an application brought pursuant to section 77 of CCBA alleging a violation of section 75.
2The responding party has asked the Board to dismiss the application on the basis that the facts alleged do not make out a case for the orders or the remedies requested. Unfortunately, perhaps because of the manner in which the application was originally filed, the responding party did not direct its submissions to section 75 of the CCBA.
3The facts alleged are fairly straightforward. The applicant referred a grievance to arbitration with respect to the rate of pay of a member of the bargaining unit. It succeeded. The arbitrator retained jurisdiction to deal with any disputes arising from the application of the award. The grievor submitted his calculations of what he was owed. The responding party did its own calculations and alleged that the grievor in fact owed them money. The grievor and a representative of the responding party met. They agreed neither would pursue their claims against the other. The applicant discovered this after the fact. After some communication with the arbitrator (to which she appears, wisely, not to have responded), the applicant filed this application.
4The Board is reluctant to say anything about issues not raised by the parties directly. Without the benefit of argument from the responding party, it seems to the Board that it is at least arguable that the facts disclose a violation of section 75 of the CCBA. The union is the representative of the employees in the bargaining unit. On the surface, the responding party should not bypass the bargaining agent and deal directly with employees, at the very least without advising the union first. On the other hand this dispute appears to arise from a process (described in the collective agreement or other documents, none of which were filed by either party) which encourages resolution of this kind of dispute between employer and employee, at least at the first step. Neither party advised the Board of the status of the “College Workload Monitoring Group”, which may be a sort of intermediate step. These issues cannot be determined without hearing evidence and argument.
5However, there is a real question in the Board’s mind as to whether the Board should exercise its discretion to hear this application at all. Section 77(4) of the CCBA, like section 96(4) of the LRA, is a discretionary section. This is a dispute that arises out of a collective agreement about the wages to be paid to an employee. It was referred to arbitration. The arbitrator describes it as a “dispute between the College and the Union”. Absent specific language in the collective agreement, the Board assumes that the applicant retains control of the arbitration procedure. If in fact the grievor and the responding party entered into a binding agreement not to pursue this matter further, that would at most be binding on those two parties. It is not binding on the applicant. Thus the College may have placed itself in a position where it has agreed to forgo a possible claim for overpayment against the grievor, but still be faced with a claim by the applicant to continue the arbitration process and calculate the amount of wages owing.
6If the applicant were to request the arbitrator to finalize her award, and assuming there was no impediment to her doing so (there does not seem to be a functus argument available on what the Board has in its file) it is difficult to see what remedy, other than a declaration, would be appropriate in this application. The applicant’s concern, in the abstract, is a serious one. However, the facts in this case concern a single employee. If the responding party did in fact “go behind the union’s back” and interfere with its ability to represent one employee on one grievance, the applicant has within its own power the ability to provide the most appropriate (and likely most effective) remedy by returning to arbitration. It is difficult to see how a declaration from the Board would add much to the process. To repeat, this application does not allege a systemic practice by the responding party which goes beyond this one occasion.
7It seems appropriate to the Board, on its own review of this matter, that the appropriate disposition is to adjourn the application sine die until the arbitration process has been exhausted. The Board would be in a better position to determine whether or not to exercise its discretion to hear this application at that point. However, the Board is not prepared to do anything without the submission of the parties. The comments above are not, by any means a tentative decision of any sort. They are the issues that appear to be important to the Board and it is appropriate to ask the parties to address them directly to assist the Board. The parties are directed to file written submissions with respect to the issues raised in this decision. The submissions of the applicant are to be filed by October 27, 2000. Those of the responding party are to be filed by November 10, 2000. Any final reply by the applicant is to be filed by November 16, 2000.
8I remain seized of this application for the purpose of determining this preliminary issue.
“David A. McKee”
for the Board