The Canadian Union of Public Employees (Local 2376) v. The Roberts Smart Centre
File No.: 0168-00-U Date: July 19, 2000
Before: Mary Ellen Cummings, Alternate Chair.
Decision of the Board
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act").
The applicant alleges that the responding party has violated sections 70, 72 and 76 in the way it has dealt with a pregnant employee's right under the collective agreement to seek alternate work during her pregnancy. The applicant alleges that the employer's representatives harassed and intimidated Nadine Amelotte in an effort to deter her from seeking the alternate work to which she is entitled.
I came to review this file in my administrative role as Alternate Chair. By letter dated June 26, 2000, the applicant has requested that the hearing dates in August be adjourned because Ms. Amelotte is scheduled to give birth in late July. The union asks that the hearing be re-scheduled in late September or thereafter, and that the hearing be scheduled to take place in Ottawa so that Ms. Amelotte can better care for her new baby.
Although the union copied the employer with its letter, it does not appear that the union has the employer's consent to the adjournment, nor sought the employer's views on the proposed change of venue.
The Board's existing travel policy, which is an administrative policy, confines the Board's travel for adjudication to certification and termination applications, after the first two days of hearing. In other words, the Board does not normally travel for hearings involving unfair labour practices. Before deciding whether an accommodation should be made in the circumstances of this case, the Board would like to hear the views of the employer.
Having started to look at this file with my administrative "hat" on, I then continued to look at it from an adjudicative perspective. In its application, the union noted that the parties reached "an agreement in principle on the accommodation request". So it appears that the issue that is at the centre of this complaint has been resolved.
I also note that in the response, the employer indicated:
The employer agrees that the process followed was faulty and that remedial action has been taken.
- Under "other relevant statements", the employer wrote:
The employee has been issued an apology and assured that none of the events will affect the employee's status; all relevant documentation has been removed from the file.
It seems then, that the employer has taken steps to redress what it acknowledges was a "faulty" process. What, then, would be achieved by inquiring further into this complaint?
In its list of remedies requested, the applicant seeks a declaration that the employer has violated the Act and an order that the responding party cease and desist from violating the Act.
The union also asks the Board to effectively, order the employer to change Ms. Amelotte's supervisor and to order the employer to pay all of the applicant's costs of the hearing, including its witnesses. It is highly questionable whether the Board has the jurisdiction to award either remedy. It is extremely unlikely that the Board would order such remedies.
What the union is likely to get by way of remedies, if it is successful, is a declaration that the employer has violated the Act, and an order that the employer cease and desist.
Having regard to the fact that the accommodation issue has been resolved; that the employer says it has apologized, and taken remedial steps; and the limited remedies that would likely be ordered by the Board, I am obliged to ask what could usefully be accomplished by inquiring further into this matter?
The Board has discretion not to inquire into an unfair labour practice complaint. The Board often exercises that discretion where it is satisfied that no good labour relations purpose would be served by such an inquiry. At this point it would be useful to have the views of the parties on that issue. To that end, the Board directs:
that the employer deliver and file a response to the applicant's request for an adjournment and change of venue by no later than July 31, 2000;
that the union deliver and file its submission on the question of whether the Board should exercise its direction by August 15, 2000;
that the employer deliver and file its submission on the question of whether the Board should exercise its discretion by August 30, 2000.
In the event that the employer does not agree to adjourn the August 9 and 10, 2000 hearing dates, the issues raised in No. 2 and No. 3 will be dealt with by the panel hearing the case. Otherwise, the Registrar is directed to place the submissions before this panel of the Board, if practical.
"Mary Ellen Cummings"
for the Board