The Registrar
Ontario Labour Relations Board
Website: www.olrb.gov.on.ca
Address all communication to:
ONTARIO LABOUR RELATIONS BOARD
Labour Relations Act, 1995
OLRB Case No: 2839-20-U
Unfair Labour Practice
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party
OLRB Case No: 2860-20-U
Unfair Labour Practice
Ontario Public Service Employees Union, Applicant v Ontario Public Service
Staff Union, Lois Boggs, Tim Mulhall, Cheryl Wing and Emily Visser,
Responding Parties
OLRB Case No: 0134-21-U
Unfair Labour Practice (Bad Faith)
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party
COVER LETTER
TO THE PARTIES LISTED ON APPENDIX A:
The Board is attaching the following document(s):
Decision – January 14, 2022
DATED: January 14, 2022
Catherine Gilbert
Registrar
Pg. 1 of 2
505 University Avenue, 2nd Floor
Toronto, Ontario M5G 2P1
Tel: 416-326-7500
Toll-free: 1-877-339-3335
Fax: 416-326-7531
Pg. 2 of 2
ONTARIO LABOUR RELATIONS BOARD
OLRB Case No: 2839-20-U
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party
OLRB Case No: 2860-20-U
Ontario Public Service Employees Union, Applicant v Ontario Public
Service Staff Union, Lois Boggs, Tim Mulhall, Cheryl Wing and Emily
Visser, Responding Parties
OLRB Case No: 0134-21-U
Ontario Public Service Staff Union, Applicant v Ontario Public Service
Employees Union, Responding Party
APPEARANCES: Katy O’Rourke and Joanne McMahon appearing for
Ontario Public Service Staff Union et al; Michael Mendl appearing for
Ontario Public Service Employees Union
BEFORE: Maureen Doyle, Vice-Chair
DECISION OF THE BOARD: January 14, 2022
1. These are applications alleging unfair labour practices under the
Labour Relations Act, 1995, S.O. 1995, c.1, as amended (the “Act”).
Two applications, 2839-20-U and 0134-21-U were filed by the Ontario
Public Service Staff Union (the “union”) and 2860-20-U was filed by the
Ontario Public Service Employees Union (the “employer”).
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2. Each application contains numerous allegations. Each
allegation is the subject of at least one preliminary objection by the
opposing party. In addition to the other preliminary objections it made,
the employer also submitted that many of the issues are currently
placed before arbitrators for determination, and the Board should defer
consideration of those matters.
3. The union takes the position that there should be no deferral
and that the Board should proceed to hear its applications. Generally,
it takes the position that the matters should not be deferred, as the
Board is in a position to hear all of the allegations together, and this is
important in order to discern what it characterizes as a “pattern” of
employer behaviour which is contrary to the Act.
4. In a decision dated October 21, 2021, the Board directed the
parties to provide their positions on the opposing party’s preliminary
objections and to be prepared to address them at the Case Management
Hearing. It also directed the parties to be prepared to address the
significance of the grievances, if any, related to the allegations
contained in these applications, including their current status and any
decisions or interim decisions.
5. At the Case Management Hearing, the parties provided an
exhaustive list of the grievances which touch upon the allegations
contained in these applications, including their status. With some
exceptions, noted below, the parties were in agreement with respect to
the relationship of the grievances to the allegations contained in the
applications.
6. The parties were directed to provide their submissions
regarding the question of deferral of the applications. The Board did not
invite submissions on the possibility of proceeding with the allegations
for which there is no “related” grievance, and indeed such an approach
would appear to be inconsistent with the union’s stated goal of having
all of the allegations being placed together before the Board.
2839-20-U
7. In Board File No: 2839-20-U (“ULP 1”), the union asserts that
the employer has violated sections 70, 72, 73, and 76 of the Act. The
allegations span the time period from approximately June 2020 to late
April, 2021. The union alleges that the employer held “captive
audience” meetings regarding an arbitral award and that it made
disparaging remarks about the union at the meetings. It further alleges
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that following remarks they made at the meetings, its First Vice
President Cheryl Wing and its former First Vice President Emily Visser
were terminated due to union activity. It alleges that the employer and
some of its members who were in acting supervisory positions to
“infiltrate” a zoom meeting it held regarding the arbitral award, and the
acting supervisors reported back to the employer. It alleges that the
employer changed long-standing practices regarding correspondence to
the union, such as sending copies of discipline and dismissal letters to
its president, sending notice of hiring and contract extension letters to
its president and ending the practice of denoting which employees were
in acting assignments by using “A” or “acting” on emails etc. It alleged
that the employer demanded that its President Boggs and Chief Steward
Mulhall return the laptops and cellphones it had issued to them. It
alleges that unless employees arranged their own vacation coverage,
the employer would not grant their vacation requests, despite seniority
provisions in the collective agreement. It alleges that the employer
refuses to consolidate related grievance, increasing its costs
unnecessarily. It alleges that the employer has not posted vacancies
since June 2020, leaving 40 positions unfilled on a permanent basis. It
further alleges that the employer merged with the Educational Resource
Facilitators of Peel (ERFP) and as part of an agreement with the ERFP,
the employer awarded permanent positions to its members. The union
also alleges that following discussions with it, the employer unilaterally
announced a “Pandemic Exit Initiative” (“PEI”) to employees, though
there is no agreement regarding the process or approval of individuals,
nor is it something which can be grieved. The union also alleges that
its Membership Secretary Alyssa Walker was denied reimbursement for
courses subsequent to having provided testimony on behalf of the union
in proceedings against the employer, and it alleges that this was in
violation of the Act. Finally it asserts that the employer terminated
several other individuals, Shawn Koza, Stacey Tamblin and Jeff Westin,
due to union activity.
2860-20-U
8. Board File Number No: 2860-20-U (the “employer ULP”) is an
application filed by the employer, in which it alleges that the union has
violated sections 76 and 96(7) of the Act.
9. The employer alleges that the union has abused the “Full Time
Book Offs” of President Boggs and chief steward Mulhall, who have been
excused from their full-time duties as employees in order to fulfill their
obligations to the union, because they did not attend special events it
expected them to attend, and was slow in providing it with a draft of the
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collective agreement. It also alleges that President Boggs was slow in
providing it with a reconciliation of paid time off for union members on
union business, and she under-reported members’ time off for union
business. It alleges that with respect to the implementation of the
above-noted arbitral award, the union encouraged members to inundate
supervisors with requests regarding work hours, and that union
President Boggs told the workers to blind copy the union on all such
requests, using an email address it had set up “surreptitiously” to
monitor the requests and responses, without permission from the
employer. Finally, it alleges that Cheryl Wing “verbally berated and
challenged the authority” of senior management in front of staff at the
above-noted meetings it convened to discuss the arbitral award with
employees, and that President Boggs had Emily Visser do the same. It
alleges that the union engaged in a “transparent scheme to thwart the
implementation” of the award in violation of the Act. It also alleged that
in making allegations about the meetings in ULP 1, the union resiled on
its commitments in relation to a Memorandum of Agreement (MOA) it
signed regarding the award. It further alleges that the union
commenced ULP 1 for the improper purpose of intimidating the
employer and its leadership, and using it as a propaganda tool. It also
provides its response to allegations contained in ULP 1. It alleges that
the union has abused the mediation process, citing a lengthy
unsuccessful mediation for which it paid. It alleges that the union’s
communications regarding the PEI were coercive and intimidated
employees, causing fear and anxiety in order to thwart the
implementation of the PEI.
10. The employer filed a request to amend its application, providing
additional allegations. The first additional allegation it seeks to provide
is that the union has filed the ULP for the purpose of interfering with the
employer’s leadership elections. It also makes two additional
allegations which do not directly relate to the union’s ULPs or issues
raised therein. In particular, it alleges that the union attempted to gain
access to privileged information by virtue of its choice of law firms, and
also alleges that the union disclosed confidential settlement discussions.
0134-21-U
11. In 0134-21-U (“ULP 2”), the union alleges that the employer
violated sections 70, 72, 73, and 76 of the Act.
12. It alleges that the employer engaged in bad faith negotiations,
because during an extension for filing a response, the employer made
offers of full-time employment to approximately 24 temporary
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employees, without posting the positions. It also alleges that the
employer failed to provide it with answers about the hires, preventing it
from being able to advise and represent its members. It alleges that
two temporary employees have now filed Duty of Fair Referral
complaints against it, due to the employer having violated the Act.
13. The union alleges that president Boggs sent an email to the
employer’s counsel regarding litigation and that he responded, copying
members of Boggs’ union executive, in an effort to embarrass union
President Boggs.
14. The union alleges that after April 21, 2021, the employer sent
an email to employees in which it made “barely veiled accusations that
the union has disputed OPSEU’s assignment of permanent jobs (in clear
violation of the Collective Agreement) because they are trying to uphold
white supremacy”. It alleges that this is continued interference and
undermining of the union, contrary to the Act.
Grievances
15. The parties are bound by a Collective Agreement which expires
on March 9, 2022. Article 32.01 of the Collective Agreement provides
as follows:
32.01 Discrimination
There shall be no discrimination, restraint, or intimidation
practised or permitted by the Employer or the Union or any
of the officials or officers of the Employer or the Union
against any employee because of sex, sexual orientation,
gender identity, gender expression, age, martial status,
race, colour, creed, ancestry, place of origin, political
opinions, ethnic origin, citizenship, family status, receipt of
public assistance, record of offences, on account of any
Union activity, or because of disability or upon any other
grounds referenced in the Ontario Human Rights Code.
32.02 Harassment
There shall be no discrimination, restraint, or intimidation
practised or permitted by the Employer or the Union or any
of the officials or officers of the Employer or the Union
against any employee because of sex, sexual orientation,
gender identity, gender expression, age, marital status,
race, colour, creed, ancestry, place of origin, political
opinions, ethnic origin, citizenship, family status, receipt of
public assistance, record of offences, on account of any
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Union activity, or because of disability or upon any other
grounds referenced in the Ontario Human Rights Code.
16. Article 8.05 of the Collective Agreement permits that grievances
related to Articles 32.01 and 32.02 may be filed in a reasonable period
of time after the alleged discrimination or harassment occurred.
17. The parties agree that the union has filed grievances regarding
the following:
• The termination of Cheryl Wing – ongoing grievance
alleging unjust termination and violation of Article
32;
• The termination of Emily Visser – first day of
arbitration grievance scheduled, alleging unjust
termination and a violation of Article 32;
• Alleged change in practice of sharing discipline and
hiring/contract extension letters – grievance
referred to arbitration under section 49 of the Act;
• Employer’s requirement that Union President and
Chief Steward return their computer equipment and
phones to OPSEU – grievance includes allegation of
violation of Article 32, grievances held in abeyance
at union request pending resolution of related
grievances currently ongoing;
• Alleged change in practice regarding vacation
approval process – grievance ongoing;
• Alleged failure to post and fill vacancies referenced
in ULP 1 and 2 – grievance ongoing;
• Employer’s announcement of Pandemic Exit
Initiative – no parallel grievance, PEI suspended by
employer, but Union has filed 10 grievances on
behalf of individuals to whom it says employer
should have extended payment – first day of
arbitration scheduled, grievance includes allegation
of violation of Section 32;
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• Grievances on behalf of Shawn Koza, Stacey
Tomblin, and Jeff Weston – Koza’s termination
grievance and grievance of violation of section 32,
award pending; Tomblin suspension and dismissal
grievances both ongoing; Weston grievance
regarding dismissal ongoing;
• Awarding of permanent positions to temporary
staff, referenced in ULP 2 – first hearing day
scheduled; additional grievances filed on behalf of
individuals who awarded permanent positions but
had the offers revoked – first hearing day
scheduled;
Amendments to ULP 1
18. The union has now written to the Board advising that the parties
have settled some of the issues contained in ULP 1 and that they have
agreed to remove those allegations from the pleadings. In particular,
the parties have agreed that the following allegations be removed from
ULP 1: the allegation that the termination of Cheryl Wing was due to her
participation in a trade union; the allegation that the termination of
Emily Visser was due to her participation in a trade union; and the
allegation that Jeff Weston was terminated contrary to the Act. Further,
the union no longer seeks an order that the employer reinstate Ms.
Wing, Ms. Visser, or Ms. Weston and make them whole.
19. The parties’ request that ULP 1 be amended to remove the
above-noted allegations and various references to them in ULP 1, is
granted.
Decision regarding Deferral
20. The employer submits that the Board’s practice of deferral
encourages the practice and procedure of collective bargaining under
the Act and the dispute resolution mechanism contained in the collective
agreement and it cites Board decisions including Valdi Inc., 1980 CanLII
884 (“Valdi”), INVISTA Canada Company, 2008 CanLII 4768 (ON LRB)
(“INVISTA”), and Maple Leaf Consumer Foods Inc., 2006 CanLII 37797,
(ON LRB) (“Maple Leaf Consumer Foods”), and Conestoga College, 2004
CanLII 13850 (“Conestoga”). The employer submits that the Board only
departs from its general practice of deferring a dispute to arbitration in
exceptional cases, such as where the arbitration process is unavailable
or unsuitable to resolving issues in dispute. It cites Montebello Metal
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Inc., 1982 CanLII 998 (ON LRB) (“Montebello”). It submits that the
Board’s practice is founded on a preference to avoid a multiplicity of
proceedings and to promote the expeditious and efficient determination
of labour relations disputes. It submits that the potential for
inconsistent findings of fact is also a “critical consideration”.
21. It submits that the fact that the union has raised a series of
complaints against the employer is not a sufficient reason for the Board
to hear the complaint. It submits that the Board must be satisfied that
the arbitration process is clearly unavailable or unsuitable to resolving
the issues in dispute, and it cites Dupont Canada Inc., 2001 CanLII 9561
(ON LRB) (“Dupont”).
22. It submits that deferral would promote the most efficient
determination of the disputes and would avoid the potential for
inconsistent findings of fact. It also submits that there is no doubt that
a labour arbitrator appointed under a collective agreement can deal with
the alleged breaches of the Act with the same force and effect as can
the Board, and it cites INVISTA, especially as here where Article 32
prohibits discrimination on the basis of Union membership or activity.
23. The employer submits that the parties have completed many
hearing days over the above-noted grievances, and have expended
considerable time and resources in those grievance processes. The
employer submits that this is duplicative litigation and that there is no
purpose in proceeding, but that in any event, the matters ought to be
deferred to arbitration. It does not submit that the matters ought to be
dismissed outright, but that it is appropriate for the Board to “stand
down” the ULPs and retain jurisdiction to deal with any residual issues
that may not be resolved through the grievance arbitration process.
24. The employer submits that the union’s submission that, as it
alleges a pattern of behaviour, the Board should not defer, is not a
relevant consideration under the Board’s deferral process. It submits
that simply labelling allegations as a pattern is not probative in
determining whether to defer. Rather, it submits that according to Valdi,
the Board should be persuaded by the fact that the parties have a
dispute resolution process in place, and that the parties have and
continue to deal with their disputes under the mechanisms provided
under the collective agreement. The employer submits that the process
under the collective agreement is working and that nothing has been
done to stand in the way of that process. It also noted that in Valdi, the
probationary employee did not have access to the arbitration provisions,
and the Board declined to defer as it was not satisfied that there was
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another process available. The employer notes that that is not the case
here.
25. The employer noted that in Dupont, the Board deferred where
there were numerous allegations of wrongdoing by the employer. It
noted that the Board noted that the parties’ relationship was a
longstanding one, as is the one here. It submits that labelling disparate
events as a pattern of conduct does not change the analysis of whether
deferral is appropriate.
26. The employer also submits that in large part, the remedies
sought by the union at arbitration are remedies it seeks from the Board
in the ULPs. It submits that where the grievances make reference to
Article 32 of the collective agreement, the arbitrator’s analysis will be
very similar to that which the Board would undertake and the arbitrator
will determine whether anti-union animus has tainted the employer’s
actions.
27. The union submits that in its ULPs it describes a pattern of
conduct in which the Employer has engaged, which has had the effect
of, among other things, undermining the Union and interfering with its
administration in violation of the Act. It submits that it is not a series
of isolated incidents which can be examined independently of each
other, as at arbitration the employer’s pattern of conduct would not be
addressed. It cites Ontario Public Service Employees Union, 2016 CanLII
81077 (ON LRB) (“Ontario Public Service Employees Union”), where the
Board declined to defer. It submits that by leaving the various
allegations to the grievance process, they would be heard separately by
different arbitrators and the “pattern of behaviour would not be
addressed”. It submits that while some allegations may appear less
serious than others, in the context of all of the allegations together, it
becomes clear that the employer’s actions have amounted to violations
of the Act. It submits that the allegations all relate to a common
workplace dispute and should be before one adjudicator.
28. It submits that in Ontario Public Service Employees Union, the
allegations were of a “broad and concerted effort of illegal activity,
involving numerous aspects, in order to undermine the staff union and
punish members for exercising their rights under the Act”. The Board
in that case stated that “…given the broad scope of alleged misconduct,
which falls squarely within the Board’s jurisdiction, this was not an
appropriate case to defer” and the Union submits that the same
reasoning ought to be applied in this case. It submits that the parties
here are the same as the ones in that case and similarly, there were
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complaints of “widespread misconduct”. It submits that here, as there,
the allegations relate to a “broad and concerted effort” to interfere with
rights under the Act.
29. The union also submits that where Article 32 has been
referenced in grievances, certain remedies available under the Act are
not before the arbitrators for consideration. It submits that it has an
obligation to represent its members and that “one of the primary aspects
of the duty is to file grievances” on behalf of its members. It submits
that if it had not done so, it would have “lost the right to represent” its
members. It also submits that some allegations listed in the ULPs are
not before arbitrators.
30. The union submits that the employer seeks to rely on
jurisprudence where a there was a “single issue ULP” which was deferred
in the face of arbitration, for example Maple Leaf Consumer Foods. The
union submits that such a situation is very different from these
applications. The union submits that this is “not an ordinary labour
relations conflict that can adequately be dealt with” by arbitration. The
union submits that the Board should prefer the decision in Ontario Public
Service Employees Union over the approach taken in Dupont and
Montebello.
31. With respect to remedies sought, the union acknowledges that
it has asked for some of the same remedies in various grievances as it
seeks from the Board, but submits that the declaratory remedies it
seeks at the Board are important to the union.
32. In reply, the employer submits that the volume of complaints
should not be determinative, as that would encourage litigants to “pad
their complaints and add issues that are not complaints”. It also notes
that though there are numerous allegations, they have not been proven
and cannot be presumed to have merit. The employer cites Montebello
and notes the Board’s interest in avoiding using its resources where
there is parallel litigation, as well as the Board’s interest in avoiding
inconsistent findings of fact and law.
Decision
33. The Board finds that this is an appropriate case for deferral to
the arbitration process.
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34. At paragraph 7 of Valdi, the Board canvassed a number of
factors that the Board will take into account in deciding whether to defer
to arbitration:
7. … However, where key provisions of The Labour
Relations Act require important elaboration and application
or where the employer’s 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. The former situation is
reflected in Thomas Built Buses Ltd., [1980] OLRB Rep. Feb.
264 and the latter can be seen in New Gregory
House, [1977] OLRB Rep. Sept. 584. Other circumstances
in which the Board has been unwilling to defer to grievance
arbitration involve cases where arbitration may have been
unavailable to the complainant or where relief in that forum
could have been inadequate. See Wallace Barnes Company
Ltd., (1961), 61 CLLC ¶16,198 and the general discussion
in Imperial Tobacco Products (Ontario) Limited,
supra. Moreover, where the Board defers to the arbitration
process it will nevertheless retain jurisdiction as the NLRB in
order to insure (a) that 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 arbitration is neither
repugnant to the purposes of the Act nor remedially
inadequate. See Imperial Tobacco Products (Ontario)
Limited, supra, for a full discussion of these subsidiary
principles. We are also of the view similar to positions taken
in Banyard and Stephenson, supra, that the Board will not
defer or will exercise its retained jurisdiction where the
grievance or board of arbitration fails to deal directly and
explicitly with the unfair labour practice issues.
35. The union relies heavily upon Ontario Public Service Employees
Union in which it says a similar situation, involving these same parties,
resulted in a decision not to defer. It is evident from that decision that
the various allegations against the employer dated from a compressed
period of approximately two months, at which time the parties were
engaged in bargaining. The allegations were that during that time
period, “four employees were discharged, five employees of the I.T.
department were suspended indefinitely, and other employees were
called into meetings with management and it is alleged were
threatened.” In addition, there were allegations that “the applicant’s
officials were excluded from the employer’s office, among other things”.
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The Board stated that it found there were approximately 6 arbitration
proceedings either ongoing or about to be started, but stated that there
was “no practical way for the union to rely on volume and pattern of
alleged misconduct as evidence of a general scheme”. The Board also
stated that “while not a total repudiation of the collective agreement,
the allegations against the employer are akin to that”.
36. The union’s allegations in ULP 1 and ULP2 span a period of close
to one year and are varied. It is not evident that the allegations
presented in these ULPs support an inference of complete repudiation of
the collective agreement, or something akin to that, as the allegations
from a two-month period during bargaining, were found to have been
done in Ontario Public Service Employees Union. The parties have a
long-standing bargaining relationship which appears to be a functioning
one. The parties are experienced in matters of labour relations and have
a dispute resolution process in the collective agreement which the union
has engaged to deal with the matters which are before the Board. While
the Board in Ontario Public Service Employees Union found that there
was no practical way for the union to rely on the “volume and pattern
of alleged misconduct” at arbitration, it cannot be that a large number
of allegations over a more extended period, without more, will
automatically render arbitration insufficient for the resolution of
disputes.
37. Many of the allegations are also the subject of current
arbitration proceedings which appear to be fairly advanced in the
process. In addition to the general preference to avoid multiplicity of
proceedings, the risk of disparate findings of fact is accentuated in such
circumstances. Further, many of the allegations are contractual in
nature, for example, failure to post vacancies, the process for vacation
approval, and terminations of employment, and as such are amenable
to grievance arbitration. In my view, there is no need for elaboration
regarding a key provision of the Act, nor is there conduct representing
a total repudiation of the bargaining process.
38. Given the inter-relatedness of the union’s ULPs and the
employer’s ULP, it is also appropriate to defer consideration of the
employer’s application.
39. The applications are adjourned for a period of eighteen months
from the date of this decision. Unless within that period any party
requests that the Board process the applications or extend the period of
adjournment, the application may be terminated without further notice
to the parties.
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40. I am not seized.
“Maureen Doyle”
for the Board