Here’s a very useful recent decision of the Labour Relations Board providing a remedy to stalled grievance proceedings, using s. 88(b) to order that the dispute go directly to arbitration and skip the earlier steps under the collective agreement.
The story line is that the Employer succeeded in getting the Board to defer a dispute to arbitration and then delayed the arbitration process, insisting on a new grievance and that it had to go through all of the pre-arbitration steps (which the union showed take about 4 ½ months to go through between those parties).
Vice Chair Terai concluded that it was not necessary for her to find that the delay was a source of industrial unrest in order to provide the order. Section 88 reads:
Action by Labour Relations Board
88 If a difference arises during the term of a collective agreement, and in the board's opinion delay has occurred in settling it or it is a source of industrial unrest between the parties, the board may, on application by either party to the difference, or on its own motion,
(a) inquire into the difference and make recommendations for settlement, and
(b) if the difference is arbitrable, order that it be immediately submitted to a specified stage or step in the grievance procedure under the collective agreement or, whether or not the difference is arbitrable, request the minister to appoint a special officer.
From the decision:
33 Section 88(b) of the Code provides the Board with discretion, where in the Board's opinion delay has occurred in settling a difference or it is a source of industrial unrest between the parties, to order an arbitrable difference be immediately submitted to a specified stage or step in the grievance procedure under the collective agreement.
34 The Employer's application to defer the dispute herein to arbitration was successful (B81/2015). The Employer's position subsequent to the issuance of B81/2015 was that the Union must file a new grievance dealing with the subject matter of the complaint and the dispute which the Board deferred to arbitration.
35 On May 11, 2015, the Union wrote to the Employer expressing its disagreement with the Employer's position. At the same time the Union stated that its letter and the March 2015 complaint attached to it constituted a grievance of "General Application" pursuant to Article 7 of the Collective Agreement. On May 12, 2015, the Employer advised that it disagreed the grievance qualified as one of "General Application" and would treat the grievance as a regular grievance to begin at Stage One under Article 7 of the Collective Agreement.
. . . .
37 In this Panel's opinion, delay has occurred in settling the difference in the circumstances of this case because of the Employer's position that the Union must begin with a written grievance and proceed under Stage One. I find the Employer's position to be artificial in view of the proceedings which have already taken place at the Board. I agree with the Union that given the history of the dispute, it is ready to be adjudicated at arbitration in an expeditious