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HomeMy WebLinkAbout0773-04-U - Plummer 04-06-09 JUN 09 2004 12:32 FR ONT LABOUR REL BORRD16 326 0431 TO 94164438618 P.04/06 ONTARIO LABOUR RELATIONS BOARD 0173-04-U Ontario Public Service Employees Union and its Local 420 and Harry Plummer, Applicant v_ Loyalist College and College Compensation and Appointments Commission, Responding Parties. 0822-04-M Ontario Public Service Employees Union and its Local 420 and Harry Plummer, Applicant v. Loyalist College and College Compensation and Appointments Commission, Responding Parties. BEFORE; Mary Ellen Cummings, Alternate Chair. DECISION OF THE BOARD; June 9, 2004 1_ Board File No. 0773-04-U consists of a complaint that the responding parties have committed unfair labour practices in requiring Harry Plummer, an official of the Ontario Public Service Employees' Union ("OPSEU'I) and an employee of Loyalist College, to take six months vacation, in a period when OPSEU bas requested that Mr. Plununer be on leave from his employment to conduct union business. Board File No. 0882--04-M is an application by OPSEU for the Board to make an interim order preventing the employer from implementing the forced vacation, until the Board had heard and detemrined the unfair labour practice complaint. The employer opposes that request. 2. In its application and declaration, OPSEU asserts that for a nwnber of years, Mr. PlUIIllIler has been a union official and that the union has "purchased" successive leaves of absence. These leaves have resulted in Me. Plummer accumulating a significant amount of unused vacation because the employer has regularly deferred requiring Mr. Plummer to take vacation. However, in the most recent period, the employer advised Mr. Plummer that he would have to take six months of vacation starting in June 2004. This occurred before OPSEU made a request to purchase more leave, but OPSEU asserts that the employer was aware of its intentions. 3. OPSEU asserts that the employer has engaged in this activity because Mr. Plummer is a union official. The employer, by its actions, is forcing Mr. Plummer to choose between taking the vacation time he has earned, or engaging in protected activity, that is working for the uruon- OPSEU submits that the employer is punishing Mr. Plummer for having engaged in protected activity, and the employer is seeking to discourage others from volunteering to work as union officials, who may well fear that working for the union will result in the loss of their vacation credits. In his declaration in support of the interim order, Mr. Plummer states that he believes the employer is also motivated by the fact that he is close to retirement, and any unused vacation credits will have to be paid out to Mr. Phmrrner, a liability the employer would like to avoid. ill his declaration, the President of OPSEU submits that the employer's actions interfere with the union selecting Mr. Plummer to exercise his skilful representation of the union, a significant detriment. JUN 09 2004 12:32 FR ONT LRBOUR REL BORRD16 326 0431 TO 94164438618 P.05/06 - 2 - 4. OPSEU asserts that Mr_ Plummer is being placed in the untenable position of having to ('.hoose to take vacation, or to engage in protected activities under the Act, at the risk that he will lose the benefit of his vacation entitlement. At the same time, OPSEU is being denied the opportunity to select the representative it desires to be available on a full-time basis to represent its interests. 5, In their response to the application seeking interim relief, Loyalist College and College Compensation and Appointments Commission (who I will call for convenience only, "the employer") assert that this dispute is rooted in a difference of opinion about the interplay between the employer's right to schedule vacation and the rights of the union to seek leaves for union officials to carry out their duties. The employer notes that this matter has already been the subject of an arbitration, in which the union's grievance was dismissed. Moreover, a grievance has been filed with respect to Mr. Plummer's circumstances. The employer asserts that it is improper for the union to seek to advance this issue in another forum. Finally, the employer submits, it is inappropriate for the Board to grant the relief sought, because it is substantive relief, and the very remedy which the union seeks at the end of the day. This is not a situation, the employer argues, where the Board will be unable to grant an effective remedy after hearing the unfair labour practice complaint) should the matter get that far. Mr. Plummer will be away from his nonnal duties; the issue between the parties is whether that time is characterized as vacation or a leave. 6. Section 98(1) sets out the Board's jurisdiction to grant interim relief; The Board may make interim orders concerning procedural matters on application in a pending proceeding and) with respect to the Board, the power to make interim orders under this subsection applies instead of the power under subsection 16.1(1) of the Statutory Powers Procedure Act. 7. As the Board has said in a number of cases, section 98 precludes the Board from granting interim substantive relief. However, as the Board has also said, section 98 should be interpreted as giving the Board powers in addition to those set out in section 111 of the Act to control its hearings and determine appropriate practices and policies to carry out its role and obligations under the Act (see IBEW, [1999] OLRB Rep. Mar! Apr 202 at page 206). 8. On the one hand, the Board must not give substantive relief in the guise of an order in respect of procedural matters. However, it may be appropriate to give interim relief in respect of the Board's proceedings, even though the order may touch on a process or activity outside of the Board's proceeding. In the appropriate case, the Board's interim relief powers may be exercised where the Board is satisfied that orders must be made to preserve the effectiveness of the Board's own proceedings and processes. While the order may affect an activity or process other than the Board's own proceeding, if the goal of the intervention is to protect the Board's proceeding, then the intervention will meet the requirements of sretion 98(1)- 9. The Board can remedy any nnfair labour practice that has been pleaded in this case. If it were to conclude that the employer had improperly required Mr. Plummer to take vacation, the Board could direct the employer to give Mr. plummer vacation at another time. The Board could direct po stings in the workplace that would let other employees know of their rights. 10. A prohibition on the direction that Mr. Plummer take vacation is not an intervention necessary to protect the Board's procedural ability to grant effective remedies. Consequently, I am JUN 09 2004 12:33 FR ONT LABOUR REL BOARD16 326 0431 TO 94164438618 P.06/06 - 3 - not satisfied that the request for a stay, in the circwnstances of this case, is a request for interim relief, within the meaning of section 98(1). 11. The application seeking interim relief is dismissed. 12. The employer has not filed a response in the main unfair labour practice complaint application. However, based On its response in the interim application, I anticipate that the employer will suggest that this matter should either be dismissed or adjourned pending the determination of Mr. Plummer's grievance, as the Board has done in a number of cases. In cases such as Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board has adjourned the unfair labour practice complaint until the grievance and arbitration process is completed, reserving jurisdiction: ... in order to ensure that (a) the dispute over the meaning of the collective agreemeJJt 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. 13. OPSEU is directed to reply to the employer's response within 14 calendar days of receiving the response, and in particular, OPSEU is directed to respond to any submissions the employer makes about dismissing or deferring this application. 14. The Registrar is directed to put the pleadings before this panel of the Board to consider whether to dismiss this complaint, or defer to the arbitration process, 15. I direct the parties to meet with the Labour Relations Specialist Dale Gordon, who has been assigned to assist the parties to endeavour to resolve some or all of the issues among them. "Mary Ellen Cummings" for the Board ** TOTRL PAGE.06 **