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Home My WebLink About0030-03-U - OPSEU 04-05-19 Ontario Public Service Union, Local 238 v. Conestoga College, 2004 CanLIl13850 (ON ... Page] of3 (~ p S \::; lA \ L_o ceo... \ d S. ~ \J . Cc, '"' Qs.+u Qntario >> Qntario Labour Relations Board >> document 2004 CanUl13850 L.R.B.) Citation: Ontario Public Service Union, Local 238 v Conestoga College, 2004 CanL11 '13850 LR B.) Date: 20040519 Docket: 0030-03-U 0030-03-U Ontario Public Service Union, Loeal 238, Applicant v. Conestoga College, Responding Party. BEFORE: Mary Ellen Cummings, Alternate Chair. APPEARANCES: Gavin J. Leeb, Lisa Nequest, Ann Wallace, Ed Rheil and Steve Lubka for the applicant; Ted J. Kovacs, Kevin Mullan, Debra Marshall and Donna Runions for the responding party. DECISION OF THE BOARD; May 19, 2004 I. This is an application brought pursuant to the Colleges Collective Bargaining Act, ItS.O. 1990, c,. C'J5 as amended ("the CCRA"). The Ontario Public Service Employees Onion ("the union") alleges that Conestoga College ("the College") has committed unfair labour practices in respect of its decision to contract outthe work of bargaining unit members in the employer's Print Shop. 2. The employer raised a preliminary argument. It argued that since the union has brought grievances with respect to the contracting out, and those grievances are in the midst of being heard by an arbitrator, the Board should exercise its discretion and defer to the arbitration. The union opposed that result. After hearing the pmiies' submissions on September 26,2003, I ruled as follows: I am satisfied that it is appropriate to defer this application pending the completion of the arbitration matter in front of the Thorne Board. I will set out my reasons more fully in a written decision. However, in summary, I conclude that the essence of the dispute between the parties is contractual. Moreover, there would be significant overlap in the testimony because the employer would likely lead the entire history of this "Print Shop dispute" in an effort to convince the Board of the bona fides of its motives. In any event, this is a mature bargaining relationship, the arbitration is well underway, and the parties are in collective bargaining. I am not satisfied that there is any pressing need for the Board to commence another, largely duplicative, proceeding at this time. Once the Thorne Board has issued its decision, the applicant may seek to bring this matter back on and ask the Board to provide remedies which it believes are necessary to address the breach of any statutory rights. These are my reasons for that decision. ~ _-L The employer operated the Print SllOp for a number of years and three bargaining unit http://www.canlii.org/on/cas/onlrb/2004/20040nlrb 12453.html 9/30/2005 Ontario Public Service Union, Local 238 v. Conestoga College, 2004 CanLIJ 13850 (ON... Page 2 of 3 employees have worked there for long periods of time. In December 2000, the employer contracted out the operation of the Print Shop, but advised that the existing staff would remain in the Print Shop as employees of the College. The union mounted a public campaign against the contracting out 4. The College entered into a contract with Grenville Management Services ("Grenville") to operate the Print Shop. The agreement with Grenville provided that the existing employees would continue as employees of the College until they terminated their employment, and the collective agreement with the union would be adhered to. 5. The union and the College have a dispute which arises out of the manner in which a replacement employee was hired during a sick leave of one of the Print Shop employees. That grievance has been referred to arbitration before a panel chaired by arbitrator Guy Thorne ("the Thorne Panel"). At the time of the Board's hearing, 4 days of hearing had been held, 2 more were scheduled in 2003, and the parties estimated another 2 to 4 days would be required. 6. The union alleges that on one of the days of hearing in December 2002, the employee who had returned from sick leave was working at the Print Shop. It is alleged that the employee was told by Grenville's on..site manager that "she would lose herjob ifOPSEU won the grievance". The union asked the College to address the threat. The next day, the union filed a new grievance challenging the bona fides of the contracting out. 7. On March 14,2003, the College advised the union that it intended to fully contract out the Print Shop, resulting in the layoff of the three college employees working there. 8. In its complaint before the Board, OPSEU alleges that the decision of the College to fully contract out the Print Shop and cause the layoff of the three employees, and the timing of that announcement, in the midst of the arbitration, constitute intimidation, unlawful interference, and the imposition of a penalty against the three employees and the union. 9. OPSEU agrees that the arbitration board will determine the bonafides of the contracting out, but asserts that the issue before the Board is different. The union is asking the Board to focus on the motivation for the contracting out. It asserts that what might otherwise be a lawful arrangement is tainted by the College's unfair labour practices, particularly the timing of the announcement. It was intended to intimidate both the employees and the union, in the midst of the Thorne Panel's hearing. 10. The leading case that discusses the circumstances where the Board should defer to the arbitration process is Valdi Inc., [1980] OLRB Rep. Aug. 1254. At paragraph 7, the Board discussed the distinction between disputes which are rooted in contractual disagreements between the parties whose resolution, through arbitration, will essentially resolve the unfair labour practice complaint, and disputes that are, at root, conduct which the Labour Relations Act, 1995, S.O. 1995, c.I, as amended (the "Act") was intended to address. In the first type of case, deferral to arbitration is appropriate because it encourages parties to use the dispute resolution process founded in their collective agreement; it discourages multiple proceedings and the temptation of forum shopping. In contrast, in cases which the Board characterized as requiring elaboration or application of important principles under the Act or "...where the employer or trade union's conduct represents a total repudiation of the collective bargaining process, it becomes more difficult to characterize the complaint as essentially contractual. It is in these situations that the Board has asserted its jurisdiction". 11. The Board determined to defer this matter until the Thorne Panel finishes. As counsel for the College argued, this is a relatively mature bargaining relationship, the parties are in the midst of collective bargaining, and the Thorne arbitration is well underway. The parties are already engaged in a number of processes where this dispute can be resolved or decided. http://www.canlii.org/on/cas/onlrb/2004/2004onJrb12453.htmI 9/30/2005 Ontario Public Service Union, Local 238 v. Conestoga College, 2004 CanLII 13850 (ON ... Page 3 of 3 12. More significant, notwithstanding OPSEU's characterization, the Board finds that the dispute between the parties is primarily contractual in nature: is the College entitled, under the terms of the collective agreement, to contract out the work of the Print Shop? As set out above, the Board has held that disputes that arc primarily contractual should be heard by the workplace parties' dispute resolution process, that is, the arbitration proceeding required by their collective agreement. 13. Unless the Board defers to the Thorne arbitration, the parties will engage in two hearings, where most of the evidence will overlap. The College would inevitably lead evidence about its business reasons, to counter the union's assertions of improper motives. Not only would that be a waste of the parties' and the Board's resources, it creates the possibility for different outcomes, on the same facts. 14. However, the Board declines the College's request that the application be dismissed. As set out in Valdi Inc., there are good reasons for the Board to retain jurisdiction, even if the dispute is largely contractual. The Board should retain jurisdiction: ... in order to ensure that (a) the dispute over the meaning of the collective agreement is resolved with reasonable promptness; (b) that the arbitration procedures have been fair; and ( c) that the outcome of the arbitration is neither repugnant to the purposes of the Act nor remedially inadequate. 15. This matter is adjourned sine die. If neither party seeks to bring it back on for hearing before the expiry of one year from the date of this decision, it will be terminated without further notice to the parties. "Mary Ellen Cummings" for the Board [AboutCanul] LConditiOIJSOf Use] [AdvaQ~E;gmsearGhJ [Help] [Fran<;21i$] [privacy.. POlicy] [M2iilin9 Li$t~] [TechniGClLlib rary] LCpotaciCflDL.II] h~ ,!:7xUM forth%:; Fe>::kucdioll oflCl'iblScaje'kcB of C~ma:da http://www.canlii .org/ on/cas/ onlrb/2004/2004onlrb 12453 .html 9/30/2005