1892-01-U Thunder Bay Typographical Union, Local 30004 of Communications Workers of America, Applicant v. The Chronicle Journal, Responding Party.
2018-01-JD The Chronicle Journal, A Divisional of Horizon Operations (Canada) Ltd., Applicant v. Thunder Bay Typographical Union, No. 44 (“TBTU, No. 44”) and the Communications, Energy and Paperworkers Union of Canada, 191 (“CEP, Local 191”), Responding Parties.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; December 19, 2001
[1]. These files consist of a complaint by the Thunder Bay Typographical Union, Local 30004 (TBTU) that the Chronicle Journal (the employer) has committed an unfair labour practice in eliminating all of the jobs and work of the bargaining unit and giving it to others, in order to avoid its responsibilities under the collective agreement. The TBTU alleges that the employer has taken this course of action to penalize employees for exercising their right to belong to and to participate in the lawful activities of the trade union.
[2]. The employer denies any wrongdoing, but in particular points out that it has assigned the work to members of the Communications Energy and Paper workers Union of Canada, Local 191 (the CEP) with whom it also has a collective bargaining relationship. The employer alleges that the CEP employees are able to do the work better, more efficiently, and at lower cost. The employer further indicates that the TBTU has filed grievances with respect to the terminations of the employees in its bargaining unit.
[3]. Board File 2018-01-JD is a request for a determination of a jurisdictional dispute. The employer asserts that the collective agreement it has with the TBTU permitted it to lay-off the staff of the composing room and assign the work to the graphic artists represented by the CEP, and that for proper business reasons it made that decision. The TBTU has brought grievances, seeking reinstatement of the composing room employees. The employer submits that these circumstances give rise to a jurisdictional dispute. Further, the employer seeks an interim order deferring the hearing of the unfair labour practice complaint and an order requiring TBTU to “cease and desist” from pursuing grievances in respect of the termination of the composing room employees.
[4]. In a decision dated November 13, 2001, the Board expressed the preliminary view that a determination about a work assignment was premature, in light of the employer’s assertion that the TBTU had anticipated the loss of the work and negotiated collective agreement provisions called Special Protections which both foresaw the elimination of the bargaining unit and included special measures to compensate for the loss. In that decision the Board sought the parties’ submissions on the issue.
[5]. The Board also asked for the parties’ submissions on whether the Board should defer the unfair labour practice complaint until after the TBTU’s grievances are arbitrated.
[6]. The Board received fulsome submissions from the employer and the TBTU. The CEP had already advised the Board and the other parties that it did not intend to participate.
[7]. The employer submitted that it would be appropriate to defer to arbitration on the narrow issue of whether or not the TBTU had a claim to assert the work, but once that determination was made, the Board should instruct the arbitrator to adjourn, and remit the issue to the Board for it to commence the jurisdictional dispute. Counsel submitted that if the arbitrator determined that the TBTU did have a claim to the work, then went on to make a remedial order, the employer would be deprived of its opportunity to advance its jurisdictional dispute at the Board. The employer also submitted that the unfair labour practice complaint be deferred until all of the other proceedings are determined.
[8]. The TBTU objected, in the strongest terms, to the deferral of the unfair labour practice complaint. It submitted that the primary issue is the employer’s abolition of the entirety of the composing room and avoidance of the collective agreement. The first question in assessing that action, counsel submits, is not whether the employer had a lawful reason but whether its motives are tainted by improper purposes. That is an exercise that can only be undertaken by the Board and a reason the Board has relied on in the past for not deferring to arbitration (see for example Valdi Inc. [1980] OLRB Re. 1254.) Counsel submits that the Board must examine the activities of the employer and determine whether the “taint” theory applies before it is appropriate to determine whether or not there has been a breach of the collective agreement and before it determines any jurisdictional dispute. Counsel also submits that proceeding with the unfair labour practice first is also more practical because in the event that the Board upholds the complaint, there will be no need to proceed with the grievance or the jurisdictional dispute.
[9]. The Board accepts that it should not defer matters to arbitration when, as the panel said in Valdi “… key provisions of the Labour Relations Act, 1995 (the “Act”) requires important elaboration and application or where the employer’s or trade union’s conduct represents a total repudiation of the collective bargaining process [because] it becomes more difficult to characterize the complaint as essentially contractual”. I understand that in this case, the TBTU alleges that the employer’s emptying of its bargaining unit can be characterized as nothing less than a total repudiation of the bargaining process.
[10]. But I return to the collective agreement provision that is at the centre of this dispute:
Special Protection
This section 26.01 covers issues pertaining to the impact of the introduction of a front‑end system and the elimination of the jurisdiction in the Composing Room.
This section applies to the following employees only, in their seniority order: Norm Beazley, Shannon Gourley, Dave Dafoe, Mary Ann Kemp, Debbie Anderson, Charlotte Agostino, Lorne Barichello, Cari-Ann O’Neill and David Wadson.
(A) the above named employee(s) will remain members of the Union and be covered by this agreement regardless of whether they are employed at the Chronicle-Journal.
(B) Should there be a surplus of the above named employee(s) as a direct result of the Employer hiring additional staff after June 01, 1999, outside the bargaining unit to make up local retail advertising, the following shall apply.
(C) The junior employee covered by this Agreement will be declared surplus, providing the remaining employees are competent to perform the work. The junior surplus employee covered by this agreement may displace the junior non-bargaining employee as described in (b) provided the employee is competent to perform the work.
(D) Should the junior named surplus employee choose not to exercise(c) of the agreement, the named employee declared surplus as defined in (b), (c) and who is laid off shall be eligible for the enhanced severance as outlined below.
(E) Any other named employee may apply (prior to the date of lay-off) to be laid off and receive the enhanced severance as outlined below in place of the employee declared surplus in (c) of this Section. If the remaining employees are competent to perform the work, the senior applicant will be laid off instead of the employee declared surplus.
Severance Provision
If a regular full-time Composing Room employee is laid off due to the introduction of new technology (i.e. A front-end system) the employee will receive severance pay in the amount of 1.5 weeks pay for each year of employment (with a minimum of three (3) months and a maximum of twelve (12) months pay) inclusive of all severance and termination pay required under Ontario law. Employees who are laid off under this section may elect to continue their benefits on the same cost sharing basis in effect on the date of termination for a period equal to their severance pay entitlement, beyond their termination date.
[11]. The employer submits that it laid-off the composing room employees (who are the same ones listed at the opening of Article 26.01) in accordance with this article of the collective agreement. The TBTU alleges that the lay offs were motivated by a desire “…to avoid the effect of the Collective Agreement governing the terms and conditions of employment of bargaining unit employees”.
[12]. While the Board would normally view the elimination of a bargaining unit as a matter that would engage the Board, and not be appropriate for deferral to arbitration, it appears in this case, at least on a preliminary view, that the elimination of the bargaining unit was contemplated by the parties. The opening sentence of Article 26.01 reads “This section 26.01 covers issues pertaining to the impact of the introduction of a front end system and the elimination of the jurisdiction in the Composing Room. [emphasis added]. While the motives of the employer are still relevant, the fact circumstances render more muted the allegation of eradication of the bargaining unit. Or put another way, given the provisions of the collective agreement that are engaged by these facts, the dispute appears to be more contractual than one that raises significant labour relations policy issues.
[13]. And on a very practical level, a panel adjudicating the unfair labour practice complaint would find it useful to know whether the employer has or has not violated the collective agreement in laying-off this entire bargaining unit. For that reason, the Board considers it appropriate to defer to arbitration, and adjourn the unfair labour practice complaint pending the outcome of the grievance and arbitration proceedings with respect to the lay offs. However, the Board retains jurisdiction to ensure that the grievance dispute is resolved with reasonable promptness; that the arbitration process has been fair and the outcome of the arbitration is neither repugnant to the purposes of the Act nor remedially unfair.
[14]. Counsel for the employer submits that the Board should direct the arbitrator to do no more than determine if there has been a violation of the collective agreement. Even if the Board has the jurisdiction to give direction to an arbitrator, I decline to do so. I have no doubt that the parties will share the contours of the dispute with the arbitrator which will help him or her to make an appropriate decision.
[15]. Both the employer and the TBTU agree, although for different reasons, that the jurisdictional dispute should be adjourned. I concur.
[16]. In the event that both files are brought on for hearing, the panel they are listed in front of will be in a better position to determine how they should be heard.
[17]. The Board hereby adjourns Board Files 1892-01-U and 2018-01-JD sine die for a period not exceeding one year. If none of the parties seeks to bring either or both files on for hearing within one year of the date of this decision, they will be terminated without further notice to the parties.
[18]. This panel is not seized.
“Mary Ellen Cummings”
for the Board