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Home My WebLink AboutComtois 14-01-20IN THE MATTER OF AN ARB]TRATION ARB]TRATOR BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES Lr.}JION, LOCAL 656 (the I'un1ontr ) AND , CAMBRIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY Lh- [-ro]oye I ', AND IN THE MA:|TER OF THE GR]EVANCE OF SUSAN COMPTOIS OPSEU FILE #2013 0656-OOO3 (SUPPORT) Robert D. Howe APPEARANCES For the Union David Wright, Counsef Chad Ravary Yvan Roy Susan Comtoi s For the Employer Tlmothy p. Liznick. CounselAfison De Luisa Andre Durette Janice Clark A hearing in the above matter was held in Sudbury, Onlarro,on November 6, 2A13. Submissions \,rere made by tefeconferenceon Llanuary A, 2014, foflowed by lrritlen submisslons provldedon Januarv 75, 2Oa4. AWARD The grievance which gave rise to these proceedtngs alleges that the Empfoyer (afso referred to 1n this alrard as the rrCoflege,) violated various provisions of the parties, collective agreement (the ,'Agreement" ) by denying Susan Comtois (the rGrievor") the opportunity ito bump into the posltion of Educational planner. The position tnto which the grlevor was placed is Secretary in the School of Community & Corporate Learnlng (ithe ,Secretary posrtion"). The College has raised as a preiiminary objectton its contention Ln.1r estoppeL precludes the Grievor's pfacement from being challenged, because the Union reached agreement with the College that the crievor shoufd be placed in that posit:Lon. The Union contends that there is no estoppel ancl that cne grievance can be pursued, AL the Novenber 5, 2013 hearlng, Union counsel lndicated that he also intended to argue that Lhe Union couLd not preclude the crievor from filing a grievance and referrtng lt to arbitration, because the Agreement gives the Grievor the rrght to do so, Holrever, he subsequently elected not ro advance that argument, so it will consequentfy not be addressed in this award. On the agreement of the parties, evidence adduced at trhe November 6, 2013 hearlng \das confined to the College's prefiminary objectron, which l|,ae argued through submissions made in a teleconference held on January E, 2AI4, and through written repfy submissions, provided on January 15t 2A14. Shaunacy Berfefz, the incumbent Educationaf pfanner, was notified of the hearing and v/as in attendance at it, but d1d not seek to take an active rofe in the proceedings. She was also notified of the teleconference and listened in on it. The College cal1ed two nitnesses in these proceedlngs: Alison De Luisa, who is the College's Human Resources Director, and Andre Durette, who ls 1ts Staff Relations Manager. Two witnesses lrere afso cal1ed by the Union: Chad Ravary, 'r'iho is president of the Local Union (OPSEU Locaf 656), and Yvan Roy, who is rts Vtce president. In addltion to their testimony, twenty four er.h1b1ts were entered as evidence. In maktng the flndrngs and reaching the concLusions set forth is this award, I have duly considered all of that oraL and documentary evidence, the submlssions of counsef/ and the usuaf factors germane to assessing evidentiary credrbility and reliabillty, lncfuding Lhe flrmness and clarj.ty of the \tr'itnesses, respective memoriesr thelr abilrty to resist the influence of self interesl wnen givlng their ve].sion of events, the inl-ernal and external consrstency of their evidence, and their demeanour while testlfylng. I have afso assessed what is most probabLe rn r:ne circumstances of the case, and considered the inferences which may reasonably be drawn from the totalrLy of the evidence. The crievoris seniorlty date is December 13, 2AA.7. Prror to belng pfaced in the Secretary position (whrch ts 1n pay band E with a current marimum hollrly raLe of 927.30), she hefd the position of IT Trainer in the College's Technical Support Services Department (!rh1ch is in pay band I with a current maximum hourly wage rate of $37.31) . However, her IT Tralner position became redundant in March of 2013, when the Coffege declded to discontinue the day to day services of Desktop 411 . Notice of the College's decision was given by Ms. De Luisa to Mr. Ravary by letter daLed March 1A, 2A13 (Exhlbit 3), in accordance wiLh Artlcfe 15.2 of the Agreemenr. That Letter \das defivered to the Union along lriLh a binder of refevant documents, lncfuding a list of positrons held by persons with less seniority than the grievor. One of tile thir.ty three positions rncluded on that fist was Lhe Education Planner position (\{'hich was hetd by Amy Ctlff at the Lime that list hras prepared) . That positlon is ln pay band H, \^7hich currentfy has a maximum hourly rate of $34.49. Artlcle 14.6 of Lhe Agreement provides for the establishment of an Empfoyment Stability Committee (the rESC') comprised of up to three persons appointed by the Local Union and up to three persons appointed by the Colfege. Article 15.3 r:equires the ESC to meet foflowing the grvrng of such notlce to consider the matter and make recommendations to the Presidenl. It aLso provides that \,/here the ESC rs unabfe to agree on any recommendat ions, the members appoj.nted by the Unlon and the members appointed by the Coffege may make separate recommendat ions . i 6 -0--606' n6 -- w6 e Ms. De Luisa, Mr. Durette, and Jim Hutton (\{'ho i./as the Vice President of Finance & Administration until he feft the Colfege in August of 2013) . The Union's representatives on the ESC were Mr. Ral.ary, Mr. Roy, and David GafLinger, wlro 1s a Union steward. As indicar,ed above, Mr. Ravary is the president of Local 655. He has hefd that position for about a year and a half, having been the Chief Steward of Lhe Local for a two year period prior to that. Mr. Roy has been Vice-president of the Local for about a year and a half, and was previously a Union steward for a simifar lengLh of time. The ESC held meetings regarding the crievor on Aprif 3, 9 and 10, 2013. prior to those meetings, the crievor was advised by her supervisor that her position hacl become redundanL. Since Mr. Durette uas unable to attend the first meeting, only five representatives were present when the ESC met on April 3. A11 s1)< represenLdLlves were 1n atcendance wnen the ESC met on Aprrl 9 and 10. At the Apr1l frd meetlng the Colfege indicated that the crievor could bump into the Student Empfoyment Advisor position (in pay band E) held by Mary piche, who \trouLd then be lald off. In order to expfore other options, the Union asked the Colfege to look into the possrbility of combining some part tlme positions into a full time position for the crievor. The Union also asked about the reasoning behind droppr g Desktop 411, and qllestioned d,hel,her. the crievor,s IT poslrlon was really redundant ln that Desktop 411 was onfy part of that posltron. The Union indicated thalt the crievor could not underEtand why her posiEion was being made redundant, and also irdi.r1-F.l Fh:F dr,rihd hcr evaluation the Grievor had been told by her supervisor she vras 60 good at her job that he wished he had two of her. There was also a diecussion of whether the work being performed by the Griewor was golng to be dl,tqdl,r.F.l ThF ad] lede :dvised the Union that the work would not be outsourced or contracted out. Although not nentioned in the brref notes which she took at that meetlng, in her testimony 146. De Luisa recafled the Union indicating that it ,J. d nr. -f rLF w.rk wir. -a- /^a/t Lo whrch the College responded that if that occurred the Union could glieve as per the Agreemenb - {A grievance ,^ras filed by the Union on April 29, 2013. alleging that. the College acted in bad faith by tendering out some fT posritions, but' that grievance was withdlawn by the Union, withouE prejudice or precedent, on May 29, 2013.) ,*F.'nFt :^F y61.rFQ+o.r hw .1F .."i r .- .16 E: .9t meeLing was prowided by Ms. De lJuisa through an email sent on April 5/ 2013 (Exhibit 12), rn which she indicated that after carefully reviewing the Union'6 requeEt that part-time -i. ,r !.." -- --a t- n.1<- he College had determined that this was not posEibfe. She also confirmed that the Colfege had determined that the IT Trainer position held by the Grievor wa6 no longer required? and that. 1! r^as noL t].nancially vlab,F Eo haJe a IJ1]-c1me posrtlon Lo offer Microeoft office training and Desktop 411 services. The email also confirmed hhat the Griewor could bump into the Student Employment Adwisor position held by Mary Piche ME. De Luisa testrfled that there was no discussion at any of the ESC meetings of any potential griewance by Ehe LJ, Lon or \4s, Co_-ors lagordino h-r pl- -nenc. Durirg cross - examinaL ion. Union counsef advlsed Ms. De Lulsa that I u.r.lr r' r.e tL_rd meeting the Union expressed a concern about Ms, Comtois, who was close to ret.irement, I'winding up on the street", and tr | -L,e ,,n -h- irn So she would not wind up on the street, but that she would likely grieve. (It may reasonably be inferred that this information was prowided by Mr- Ravary and Mr. Roy Co Union counsel, lrho ther nrlt ii to l\4s DF TUis: in accordance with the rule 1n Brown v. Dunn-) He then asked her if she disagreed that il. i c L,?d c , in F^ .6o---,ra! Wh-. Unio' counsel brok- -hac corr-r*l constituent efenents, Ms. De Lui6a te6tified that she did not remember whether the Unr^n ra^r-a-hr:frr.eo o:r.r ihaE Ms. Comtois was close Lo retirement, but reiterated her .lic^.,armahr 'rFh h c ^ccF, ^n i-h- rhal' a"^raa--d .F--_ _ _ co--6/n about Ms. Comtois winding up on the street, indicated thal: they would sign the jornt recommendation so she wouLd not wind up on the street, and tndrcated that she vrould 1lkely grleve. She afso disagreed thac the crievor would hawe been "on the -L_-' rad beot drscusslon ol nef F' "' ' into the Student Empfoyment Advisor position held by Mary Piche. She further testified that the Colfege could not have laid off the crievor and put Nadia Kuturi in the Secretary n^<r, i^n ,Ae ir.l , -r F.l hF -u' Mc Xrlrrlri .:.! ha6. hraw ^ralv scheduled ro be placed rn thdE posrr ron, but had less senio" icy rhdn Ms. ^onLois. \ AltLouqh i* 5is tes :1]ony lvr. F:ir.,\ ^1,,h- ^ rLa -^.r6h',^. rL:r rha rrrr-F c ^-o,-l rha '^i-r recommendation to ensure that Lhe Grievor would have a a-d a^- ha v7 oav :^L-^w-6.1r- ir his testimony that by signing the joint recommendation the Union F , rn- h- a-ria t^r Fr^n iahrl .^ ,,n ^n La ^i _- as the Agreement's bunping process afready provided that h\/,c-,,irin- rha.^llad-,^ hl--a iha ^r 6r--- : --'o- _1 eiLher the Student Employment Advisor position or the When Ms. De Luisa was asked (during examination in chief\ what 'he wou'd have done i' Lhere fad beei -ny i n.l r -r, i^r an,,.1 ^, cri c\r^r' a nl:-6manh har 16 ..__ -. sponse was: The discussion in these meetings is vely productive. If I'd heard thaL I would have questioned it. I woufd hdve dug deeper ro find oLt why dnd if there was .-merhin- L'a L?Fra ni.cil r6n . t.ra , -ll"a,-iabout Lhe joint recomrnendaEion. On the eleventh we slgned off- I would have advised not to sign off onthe joint recommendation if there was an indication i h-l- th-r6 w'^1'l/l ha . ^, iar':n-a As .nd-cac-d above, tllr, Du,ette was presenl ac the ESC meelings on April 9 & l0 as ona of tl-F .ollega's .chYFcFnl-ri- \fa< T^rhc. ha L,-c reLa.l /d,,,r n- ^v.m inrr i.--,-.-,..--Jn o chief) if the Union raised any possibility of a grievance by che Union or- he G- 6vor r6odadlng -ler p o omenl, .rrs recponee was: rrl dontt remember any- I don't believe there vra6 any such discussion. rr test imony: In explaining why, he gave the following Flrst of all, I woufd have taken note of that. I thlnkthere would have been slgnificant discussion followrngany such item being brought up. In my notes I did notethat the Union had agreed to a .oint submission. Ifthe Union had stated that was under some kind ofreservatton/ I surely \,rould have noted i:hat. When during i:he course of cross-examlnation Union counsel advised Mr. Durette that Messrs. Ravary and Roy lrould testify that they tndacated at the ],hird ESC meeting that the Unlon woufd stgn the joint recommendation but Lhat Ms. Comtois would probabfy grieve, Mr. DLrrette's response was: Not only do I not recaLl that but I do not believe it\das said. I would have noted that and lre woufd noLhave signed a joint submission or presented it as a I olnt submission. Both Mr. Roy and Mr. Ravary testified that the Union told the Coffege that Ms. Comtois $roufd probabfy grteve. Mr. Roy testifled that at the second or thir{l meeling he made the comment that "Sue isn't going to like gorng down this rrErry pay bands and she'11 probably grieve it',. Mr. Ravary gave the following testimony 1n chief regarding that matter: O, Was Lhere any mention of a grievance at that A. o. Ithird] meet rng? Yes. What was said? We stated tthat obviously lthe Secretary posiLlonlwas Lhe only position that the Employer was wilflngto grve the Grievor so l{re \dcufd sign a jotnt recommendation but that Sue would probabLy grievetnlS matter. o l^las the possibrfity of the Grievor being laid off o. o. -A n^r h.r'in-: h^ciri^h ,r'ead il' fh. maariF.' vad r l-\al iarra e^ rrL.i A^ ar^,, v-m-mhart I believe that one of the Union reps t.hat wae with me stated that she would probably take the positlon --A -Yi o!'a r r 1.F6, r:ihar 'L--,,u L ua^,,Y fr o'ru Lr1'r rd n^rlrr n^ .h/l - i airi n months- - -. hrhan tsha ^f Mc rl--_^;^e !evfrrY we- .:i.A.l .frd r.a Fmh ^ Fr rF n.n.l A, No. O. D-d anlone fron Ehe 'o11e9e say !lac if vou erq-red' Lhe lornL recommendar'ron you couldn't grieve? A. No. Mr. Ravary testified that iL ,a,as hie understanding .hiF Fh -nn1^wa6 .rh rilF > rr161,a.^6 w;'h rren6-f -. cL lay-off, and that he h'oufd never do anything to jeopardize I har- H6 ils^ deva I ho F.tl l^diha -6eFihr-v -6dr..lind Lhat maccer: At no time did I ever think that a joint recommendation L'^,,1.1 nrarr-nr :h 6mnl^1fa- f,^m -ria1ti.- TF h^r had been the case I would have ndde a separale recommendation. I never ever would prevent an enpfoyee f'^m fi l i n^ - dri --.:h-6 M-r, Roy expressed a simifar viev, in his testimony. When he was asked (during e>.amination in chi.ef ) what was hie understanding of the effect of Bignlng a joint reconmendat.ion ^n Fha rhiliFv ^f.h in.lirri.r',:l hF diva rha following response: I didnrt think it would affect the individualts abiliEy . r)-'16, L6 -rla.e-:, r--d l-aE if an indlvldual was unhappy wrth someLhing they could dri aa.a i i- however, Ln closE-exar.nacto , Mr. Poy a k'lowledoed tLaL by signing the joint recommendation, the Union was agreeing that ,r61r:F., sh-.r- I do. also acknowfedged that if the Union di.sagreed and thought that sL- . ..--l a E.l. - the U- on had the optlon of subrnitting that tc F-he Colfege Presi.dent as its recommendation. Hoivever, he also expresged the vle\,/ that rf cl e solu- on Eo lrn.ch Lko Unlon and rha .olleg- qgreed wds not acceptable to Ms. Comtois, 6he could grieve it. When he was asked what the effect of a joint re cornrnenda t r on ie 1f it does not bind bhe Union, Mr. Roy expressed the vievr that the Tlnr-n ^h/i rh- rfFa , arl amnl -_ _- -r-iaa :n.l, -...ts-ulcc o - we oslro L went on lo say that "the Union has to save the person from haino l.',1 ' wi 16 r' I a1.- - 4a-e . iasn - happy with whatr \rre came up irith, they could grieve it'r. He further asserted that although the Union had submitted ,-/^hmar.l^r ^no rn fha n:! rlr ,a:lrr\r , -a President afways chooses the recommendation from Human Reeource6 rr . Mr. Ravary Look notes at the April 3 meeting, as did Ms. De Luisa. Notes of that meeting were also taken by Mr. Galllnger, who also took notes at the Aprif 9 and 10 meeLings, as d d Mr, Du-et!.e. 'Although Mr. C-111n9- wae ro- calleo a6 a witness, his notes were enLered as exhlbrts on the agreemenL ^f ^^',naa1 I 'rha ^rl\/ manl ^n ^F ^ -ria1,:nr 6 -^nF: na^ in,n\, of i:hose notes i6 the follo',vrng entry rn [4r. Ravary,s notes of ilia ln,il r m6aFin-. . ^f - .. -ea^- :. ) ...- .rn..ra./(oflwa.e Lralnlng \re wil.l grleva dnd fighr 1r.. 10 As indicated above, the poslLion into whach the President \das jolntly recommended to place the crievor \^/as Ene Secretary position. The possiblflty of placing the crtevor in tnat posltlon was put forward at the ESC by the College,s represenraElves, as was the initialfy discussed posslblflty of placing her in the Student Empfoyment Advisor posiLion heLd by Mary Piche. It \,ras Mr. Durette,s testirnony that if there had not lreen a Jornt recommendation, management wcufd have had to go through the fulf bumping procedure, fooking at every pay band, and to have made their o\,rn recommendation to the president. Although he acknowledged that before meeting wlLh the Unlon he had done "a first cut to see nhere the person \dif ] land,,, he noted that this can change on the basis of what the Urr-Lon nas Lo say. He afso noted that i:he CofLege has an ofd curricufum vltae at the start of the process and garners new information aE the ESC meeL ings . The lornt recommendation \{,as sent to the Coflege PresidenL, Syfvia Bernard, on April IIt 2013t through ithe following a letter (Er.hlbrt 6), v/hrch was signed by Mr. Ravary ano vls, IJe Lulsa: As you are a\dare, Lhe Employment StabrLity Committeehas been meeting over the last two weeks Lo rewlew cneredundancy 1n the fuff time support staff bargainirrgunlt of the position of IT Trainer currently 5ccupiedby Susan Comtois. As dlfftclllt as this process has been, we theundersigned are pfeased Lo reporit that Collegemanagemenl and union representatives on the EmploynenLStab1llty CommiLtee hawe reached an agreement end aretherefore advancing the folLowing recommendation 1L tointly, as follows: Susan Comtois {13-Dec 2007 - pay band I) displaces Colleen Heidrnan. SecreLd-ry, School of .arr . ind l^- / h:.^ F) ir the end of the winter 2013 semester, colleen Herdman, Appendix D, is Iaid off. NFdi^ KFt r r SF.TFI-r'w Ottr.a ^t rhF Radisl rar (18 Aug-2010 pdy band E), codplelFs he' Eerporar\ as6lonnen! e.d1r9 6-A.g-201 . Eh-1 dlsplaces (rystel La3.lme, qecrFldry, I\OARC (4.oct-201o - pay band C) . {Nadid was c^l-a I,r'ar .l.f .^^ ----a6' pF- rnan at the end of her temporaty assignment in August . ) Krystel Lapalme rs laid off. Al1 displacemenls are 6ubject to the election6 made I - -h^ ^^or -^na.l .l i<nl ^ om-n, eo e'r!j L ,_ wey, u! lui -F:- .w - _o . _1 rho i nr or-,an i hd na,i^A r".6 1^^L- ^,t,,-, ^ r^ ,/^,,, , F^l r/ president Barnard accepted that joint recommendaaion and it Li^a rmnlamFnfa.l L\r fha a^11- - -^ge . Durjng Lh. ESC proc-ss, th^ UnLon did not suggesl that the Grievor should be placed in the Educatlonaf Planner posr' on. Never'heless, on lvry 29, 201 . Ehe grlevd-lce ojvrng rise to these proceedings r^ras fifed, alleging that Lhe College ,'i^r- a/l rl-ra ir.y ^,o h,^rrioi^hc ^a,ha An.AAmF.r hw d- / .enyr ng the Grievor the opportunity to bump into that position. The college's response to that grievance was provided F,\, Mr n,!ra, Fa rh'^,,dh i ha l^ l^k,in^ l6i to, i^ Fha r-r' levo- dated May 21-, 2OI3 (Exhlbre 9): I/ie met on May 9, 2A13 to discuss your grrevance, dated A -. 1 ,o tl l v^..- ,116 "a cdA r'aE Lne .^lla^6 1/r^l^r6A :?i- i-lAc ^f i ha a1,nn^rr al rfF ^^r l-^r i,/a rAl:laA I ^ Fha inlr^l,,nl-:r\r rii c^1 ^.6mFrl- nr^.Fee I2 The CoLlege and your Union met as the EmpfoymentStability Committee between the lqa:rcll 2j notice ofplanned redundancy and Aprif 11, 2013. In additionto vacancres, the Employment SLability Committeeconsidered a flst of all the positions within theCoffege that were aL or befow your then current pay band where you had more seniority than the incumbent.Thls flst included the Educationaf planner position Amy C11ff incumbent, that you are cfaiming in yourgrievance you should have been displaced into. Thesediscussions were carried out in good faith and withgreat effort by both the members of the Union and ofthe Colfege, wlth the oblectrve of reaching the correcroutcome for you as anticipated by the bumping procedureof Lhe ccflective agreementt. At the end ;f ahisexerclse, the College and the Union made a joint submlssion to Lhe president on Aprif 11, 2013, 1naccordance with articfe t5_3_3. that you be dispfacedrnto the position of SecreLary, Schcof of Community andCorporate Learning. The president accepited and acLedon Lhrs j oint re c ommendat iorr . The Coflege asserts that in the face of a lointrecommendation, where the Cotlege acted on thatrecommendation, both you and the Union should beestopped from now grieving that you should have beenable to dispface the Educational pfanner, being aposition that \^/as on the list of possible bumps thatwas considered by the Employment Stab11lty Committee.,fointly settllng on the position into uhlch you shouLddiepface goes to the heart of the Employmenjt StabilityCommittee discussions. To allolr your Union and you tonow grleve a macter that was at the heart of lthellointr recommendation would undermine certainty for thepartles in future negotiations and lolnt agreementspertaining to bargaintng unit menbers repr-sented byyour Union. Should this matter be referred toarlrltratron, the CoLlege wiff therefore request thatthe arbilrator rufe on the maLtter of estoppel beforehearrng any evidence about your abiLity ta carry outthe duties of the cfaimed posltion. Beyond the estoppel issue, the College carefulfyconsidered the revised resume you subnitted at Lhegrlevance meeting, as wefl as your lrritten and orafsubmissions made at that meeLing. The College alsoconsidered comments and arguments made by all presentat this meetrng. All thinqs consiclered, the C_ollege rsof the vielr thait you Lack the education, knowLedge]skills and experience, or any combinatron of theie,Lo salisfactorily perform the core duties of theEducational Planner pos i t lon. 13 For each of the reasons discussed above, the Colfege n6ri ac 1/^,,, -,i A1r:n-6 Mr. Duretters testimony explajning why he wrote the thrrd paragr.aph of that letLer included Lhe following oo6erva! 1()ns : .... We feft that werd giwen the Union a fair shake and:..a dr e . ae: ^^c - - .- fel rth.f the driF1.:rce flics in the face of the fact that we had those discussions- I thought il was a very good thing that we had reached a joint recommendation. Idrdnrt think 1t would be falr for the Union to changerts mind. Ivlr Ravarv |estified in chief that he first heard abouL the doctrine of estoppel when Mr. Drlrette brought. 1L up r- r 16 vit. a 2, a 1v d :men. of his cross -examination by College counsel, he confirmed that the firet time he became aware that the Employer was of the vle\r that a grievance could be barred by an ESC joint recommendation was li/hen he met !,/ith Mr. Durette at that grievance meetinq. However. lhe .oLlege had laised i-he jssue of estoppel on the basas of an ESC joint recommendation in hravi^,,c nr^-aadind. i.',^1r'_.n rho l.^-.1 rrri^n-. lnua -1 10, 2013, counsel for the Coflege w:ote in part as follows (in Exhlb-r. 15 Eo h- lawy^r wLo was .6pre56rcrrg .he Lo-al Ur -on in respect of the Suzanne Chevrier 1ay-oll grievance (OPSEU F11e #2 012 0656-0001): I wish Lo advise thdL il shall oe the College's n' el tm, n-rrr rh^r i hF I n ^h c ac, ^^had ^,h^, , ad I .^m n, , -,,i n-_ --_.- r__-. ..lceas it has iLself proposed and agreed to precisefy the placement of the Grievor which it now seeks to challenge ln lhrs grievance. You wiLl note that in lLem 10, above, the Union through its rnenicers on the Support staff Emplo).ment stability Committee made ar4 omma.dattor co r e pr-slder- of rh- Col -9e.... f4 The Crievor was, rn ract, placpo in precisely lhe ^^ci, i^n L'hi-h lha llnr^F ,n/i.^llo'4 aa---l '. -q indlcated in the Unionrs letter. Tl is not. now open to the Union to challenge by the lnstant grievance the very placement to which it agreed. L,lhelher by estoppel or selrtlement, i:he Unlon 1s, 1n our view, barred from I dfie!dnce. Mr. Ravary had not seen that letter prior to the November 6, 2013 hearing in this matter, and ic was i.nitially 'n-- rh'- cAAir r -- -h- LF^.--d, he d.d -^i t - .., !t^.i -L6 .k -L- r^s t i^- - -LF al^vrie" case that the grievance was barred because of an ESC recommendation. However, h1s attentlon was then drawn to lhe following enail (Exhibit 20) dated January 16, 2013, from Mr. DuretLe to Edmond Prudhomme {who !,as the incumbent in the a,. i-- ^-a -al h va \.. -- -a !i--l- l^ w4 -^o -d: A grievance was filed by oPsEU, Local 556 on behalf of Suzanne Chevrier (at1:ached) clajming Lhat Ehe position whlch was made avalfable to you on yorJr layoff Last spring should have been provided to Ms. Chevrier and not to you. The grievance v/iff be heard before Arbltrator Robert Howe commencing on Friday 'fanuary 18, 2013, at 10 a.m. at the Howard Johnson HoLel, 50 Brady SCreeL / Sudbury. The College will be arguing that the Union is barled fr^r rlr<,,ir. I hie .-,a,, ^t ,rraena--s rhat were reached between Che College and the Union at the Employment Stability CommitEee- The College wilI afso ha 1'-r'ind Fh^r rn 4nv Fvart-. ir h r.l Fh- 'rnfer rared !6- | i6" Le, rrg_ 6n at Val Caron, and you to yours. Nevertheless, because you may be adversely affected by displacement by the Fh d--^ hr--- r-- . rl-- | r. .end at and paitlcrpate in the arbitration of this matter. clr^, I ^ r,^ , L,r cla r^ n^'ri }i io n-FFo, ^1 .' --- ' ts-jase. _ ,.n--,f i c..: I n order to make necessdry work arrangements. , .^L.^"'l-^^- ' h-r l-,^ h.7.l ,a^o \/o.l---_ .- a copy of that email and that it indicaLed that the Colleqe wds 15 .-k-rg -le oo-i' or -la -_- Un.on was ba.!-d fr-on oLrsuirg the Chevrier grievance because of agreements reached between the Colfege and the Union at the ESC. Ho'r'iever, he stated that he "drdn't reaLly care too much about the estoppel,' as he had recommended multiple times thaL the Chevrier grievance oe withdrawn because he did not believe that Ms. Chevrier could perforri the core duties of the job that she lranted. As submitted by Employer counseL, Mr. Ravary,s initial assertion that the first tirne he became aware that the Employer was of the vie\^/ that a grievance coufd be barred by an ESC lolnt recomnendation was when he met wlth Mr. Durette at the Aprrl 9/ 2013 grrevance meeting casts some doubu upon his powers of recoffection and the refiabiLtty of h1s evidence. The same is true of another aspect of his testimony. He rnrtialLy testifled that at the ApriL 1oth ESC meeting managemenL said, ,'Sorry, we screwed up. She lthe Grlevorl can't do piche,6 lob,, (or words to that effect) . When advised by Coflege counsel that Mr. Durette woufd testrfy that alf that the Union was told on Aprlf toth was that there was another posiLion that would come up befcre the picne position and that therefore the Grievor shoufd be put in thaL other position, Mr. Ravary acknowledged that this was I'possible", and also ackno\^rledged that it was ,'possrbfe', that at no time drd the Coffege ever say that the Grievor wds rroE qualrfled to fall Prche,s position. When he was recaLLed by the ColLege as a reply witness, Mr. Durette confirmed that the Colfege ',was always of 16 the view that the Grievor could do the Piche positionrr and { L6- cr.i-.r.--rv..? 4 ,--!:..E on I ^r rh>r rla 4l e^ -^rfr 'n6,1 ' Lr! h- th, rd meetrng the foclrs shifted from t.hat positlon to the Secretary ^^o i^. l-'a-r,,.F r.- l-rra1- --_ POAII . 01 wds ..lco'l al o rr'ag therefore a higher priority than the Student Enpfo].ment ^ l---c ' *^e i^- 6'A vc v- D.v ) oo rpqci-_ed (in cross - examinat ion) that the College never que6tioned Lhe Grievor's abllity to do the Pache job blrt tust found a _:fz6ta^_ ...rc -,>-ldble. Svmnary of Enpfoyer Counsef's ,9ubmis6jons in Chief Th- Unro 19 bd.red _rom f.l1no or p'suirg a grievance on behalf of the Grievor because it entered into a 'i - r. FAmarL. the evioence dddLced hv tha .-^lla^6 ,a-r,Air^ rF6rh-r m ^Fr l-'- f^-r .^^-i-- ^- behalf of the crievor should be preferred over Lhe contficting a , ' i rl a . ^ a : rl rl , , - a ; hrr rlra Ini^. ro--, rlr n^ h.r m-Ftsa, The management and Union representaLives 04 the ESC , a:-h-^ .-/a-m6h' -r ^r rF i]-l-, rt.a cri 6\f^. ch^,,1d .lichl--a rha c^-rai.vLl r h6 c-h-^l ^l a^mm .:1.. -{ Corporate Learning. The Union thereby gave the Employer a p-oml 56 or dssura' ce -raE Erio tnas che poslE:01 1r-o wh n !,h- crievor should be placed. That promise or assurance was intended to af fecl, their legal relationship and Lo be acted upon. The oint reco'nn-nda' on wo- acc-pEed b1 tl- Pres-den! of the College and impfemenred by the Empfoyer. If insLead of ooree g to .nar jorn_ eco-"-nda _on, L1e _J on h.d mad- a 77 r^t-.. - _l.,,, FLa..-6r_., ah-.r- ] r_q, -.rce the Educationaf Planner, the President could have made further lnqJ. rleE befo]- makj o a oe.-91o , rar\-r clan der'.mentar-y ralwin- , n^n i-h^ i^ihr .a.^-hehd:r i^a v,hi^L l-' -'1ar her of Ehe oppo] LunrEy of consrder,ng any ochet posrr]ion ano al i* :-a ' -La :a-- -v -^is.der and apply the bumping procedure under Article 15.4.3 of the Agreement. The cases relied upon by Employer counsel in support of h1s Eubmlssions are .9t, Thomas University and FacuLty Associatjon of Sx. Thomas Unjversity (Grievance of s. GupLa) , L.rnreported alrard dated June 15, 1992 (Bruce) ; Gearge Erawn Colleqe and OPSEU /Griavance of AF' hony cJomiakt, unreporled award dated March 16, 1995 (Howe) ; Durham Coflege and OPSEU (Grievance af a. Pehfcnann', unreoorled oward oated .epterr-r 14, 2O0O (Saltman); and Canadian Standardg Assn. and Canadian Unian of pubTic Enpfayeeet LacaT 967 (Babic Grievance) l2a72l O.L.A.A. No. 443, 223 L.A,C. (4th) 258 (Marcotte). Suttnatay of Union Caunsef 's Subftj.gsions The Union is not estopped from pursuing the grievance because none of the elements of estoppel has been estabfished. Although a joint recommendation could be a representatlon that wouLd bar a griewance, 1t was not in t.he circumstances of Lhis lr"ce fo-r,c6 :lr h^.dh l-6 '^ raoa'- .ao----ed thaL Lhey had no recollectron of it, the testimony of the Union witnesses rndicates that they advised the College,s representatives that Ms. Contois vrould likely grieve. The 18 Union represenLatives afso had no lntention of affecting legal rlghts. It was their understanding that signing the lolnt recommendation would noL preclude Ms. Comtois from fi1lng and purslng a grievance if she feLt that she should have another posltrion- They Lhought that Artlcle 18.6.3 gave her that righb, They were relatively new Union representatives and ltere not schooled in the concept of estoppel . The Employer has afso farled to establish detrimental reliance. pLactng the grlevor in the Secretary position was suggested by the Employer. This is not a situation in which the Employer uas convinced by the Unlon to do something it was not otherwlse going to do. No evidence was adduced regarding what tne President might have done if she had been presented with separate recommendations rather ithan the joint recommendation. Even if administrative notice is taken that the presiden1: did not have other options put to her, the CoLlege stlff had a timely opporttunity to plrt the grievor in Lhe Education planner position if it feLt this was appropriate, as the grievance was filed on April 29, 2013, which was three weeks in aclvance of nhen the grievor was to be placed in the SecreLary pos_Lr1on, and a meeting nas held on May 9, 2013, to discuss thal grlevance. Union counsel also submitted that the cases refied upon by the Employer are drstlnguishabLe from the instant. case/ and referred to Lhe following cases in support of his contentron tthat arbitrating the gr.ievance is not precluded by estoppel : Re Chranjcle ,faurnaf and C. E. p. I Lac . 19j, l2AA3l I9 O.L.A.A. No. 796, 117 L.A.C. (4rh) 3es (Surdykowski), InXernationaf Farest productE (Hatrn-(tand) v- United SXeefwazkers, Lacaf 20A9 (Shift SenioriX), Grievance), t2or2l B.C.C.A.A.A. No. 106, 22 L.A.C. (4th) 61 (Coleman) ; U.F.C.W., Loeaf f75 v. Pintyts Def)ciauB Foods Inc., l2Ar2l O.L.A.A. No. 2\'t, 279 L.A.C. (4th) 19? (Dissanayake); Eearskjn Lake Arr Service trtd. and United Food & Col?rmerci af Warkers Internatianaf Unian, Local 775, 1799'tl C.L.A.D. No. 769, 69 L.A.C. (4th) 421 (Bendel) ; Nar-Man Regjonaf Heafth Autharjty v. ManiXaba Assn. of Heafth Care professiona]s (pjaisTer Grievance), l2O08l M.e.A.D. No. 30, 95 C.L.A.S. 32S (Simpson) . uphefd on ludrcral revielr in l{or Man Regianaf Heajth AuthoraXy Inc. v. Manitoba Associatjon af HeafXh Care prafessionafs, [2011] 3 S.C.R. 616; and ,saskatcher,/an Unjan af llurses v. Saskatoon Regional Health Authority (Butuk Grievance) , l2A72l S.L.A.A. r':to. 6, 22a L.A.C. (4th) 25s (petron) . Swnrnary of EmpTayer CounseT's Repfy SubmiEEjan] The thrrd paragraph of the Exhlbit 6 jolnt recommendalrion letter stipulates that the parties' representatlves ,,have reached an agreement,, and are therefore advancing tthe recommendatlon jointly that Susan Comtols displace Colleen Heidman at the end of the Wanter 2013 semesLer. This was a crystaL clear representation \,rhich bars and estops the Union from taklng any other posltlon in arry proceedings. The grievance'e assertion that the grievor 'rshould be able to dlspface into the Education planner (Amy Cliff) posltion,', is inconsistent wtth that agreement and is 2A . n fhi_ .r, _emenl would unravel the entire labour relations fabric of agreements between Lhe parties. If the Union representatlves - S.nd-r ood - - Co.s-o l-n -b o- l-13o 6 --.t ot -t-erLng into that agreement, that is unfortunate but their unilateraf .nastake cannot deprive the Empfoyer of the bargain struck by the partresr representatives. It wouLd be inequitable to allow one party in an ongoing relationship to avoid the agreement on that basis. Under the approach advocaLeo on behalf of the Union, very few agreements reached by local parties woufd be enforceable. This would not be in the interest of good fabour refations. The cases relied upon by Employer counseL in support of his submlssrons regardlng unilater:af mistake were Re ?eck Caminca Metafs Ltd. and U.W.S,, Lac. q8A (2A06), 154 L.A.C. (4th) 161 (Tayfor) ; and Re BHP Biffitan Diamand Inc. and cases were not included in the casebook whlch he provided to Union counsef (and to the At brtrator) prior to the conference caff through lrhich counsel made their submissions, Employer counsef provided emaifed copies of them faLer that day and agreed i:hat Union counseL be permltted to make written submissions regarding them. Surnrnary af Unian Caunsefts Written SubmisEjans The cases provlded by College counsef do not have any bearing on the issue of estoppel . They involve one parLy seeking relief from a contract entered into on the basis of p.S-4.C. l2aal) , L61 L.A.C. (4th) 152 (Burke) . Since rhose 2I mrqi.kF Th^ce .Fscs st).ak to the Limile on the uEe of a unilateral mistake to obtain such relief. A unilateral - srake an b^ relied on ln defence of an allegeo estoppel as a party naking a unilaEeral misLake would not be acting wiEh ir--nE Eo dlrer he 1e9.I relol lons betlteer Lhe parties. Estoppel is an eguitable doctrine. There qtoufd be noth'1g unlojr abo L no! lorclro Ehe U .on to dbrde b.' a representation made on the basi.s of a mlstaken understanding ^t .',7\-da ri-hi. ,,nda, l-Fa AdraFmanl- n^rti.rrlaylv rn lidhr ot the lack ol or limired defrimenl to the Co11ege. Deci Eian Union counsef submiLted that his client reserved a right to pursue a grievance on behalf of Ms. Comtois by indicatrng during the ESC process that although the Union would sign a joinC recommendation that Ms. Comtois dj.splace Ms. Heidman in the Secretary position, Ms. Comtois would probably grieve. As indicated above, there i6 conflicting ewidence regarding wheLher the union representativeg made any such statement to the College repre6entatives during that process. Havrng duly conside:red all of the evidence, the submissions of counsel regarding tha evidence, fhe aforementioned factors germane to asgessing evidentiary credibility and reliability. an assessment of what is mo6t probable rn the clrcumstances of the case, and the inferences which may reasonably be drawn from Lhe totality of the avi.lFh.F r h^\.c .dn.l1rdcd that the Union did not reserve Ehe right to purgue a graevance on behalf of Ms. Comtois. As indicated above, Mr. Ravary's initiaf assertion that the first time he became aware tha[ the Employer was of the view that a grievance could be barred by an ESC joint recommendation was nrhen he met wrth Mr. Durette at the May 9, 20ll grievance meeting casEs some doubt upon his pouers of recoffection and the refiability of his evidence, given that he received an emaif to that effect in January of 2013 1n the eonl c!r .f hc ahalfriar -,^-aarJrn^c ^- T!, . ."f -er ind.icated above, the sarne is true of his testimony that at the Aprlf 10th ESC meeting management said, r,Sorry, we screwed up. She lthe Grievorl can't do Piche,s lob,, (or r,vords Lo that effect) . He subsequently conceded that it was "posslble,! that all that the Union \{,as told on Apri] loth r^/as that there \ras another position that !rou1d come up before the piche position and that. therefore the crievor shoufd be put in that other oos ion. d6 Jtgo c.oo6quAn. y ^o. ,eoeo ,nat -t ^aS "possibletr that at no time drd the College ever say that the crrevor was not quafified to fiff Piche,s position, thereby recanting his earlier testimony Lo Lhe contrary. Further doubt is cast on the refiabllity of the evidence adduced on behalf of the Union by the suggesrton Enat the Unron's represenlatlves expressed a concern abor.rt the crievor rrwinding up on the street,i and indtcated that they noufd sign the jolnt recommendation so that this v/ouLd not occur. As indicated above, it may reasonabfy be inferred that this informaLion was provided by Mr. Ravary and Mr. Roy to Union counsel, who then put 1t to the College,s witnesses in 23 accordance wlth the rule in Bro!r't v. Dunn. Although nerther of'he Union'E w-tness-9 us-o EhaL phras_ :n Ll-ir ^ dence, Mr. Ravary testifled that he believed that one of Ehe Unlon ,er.oe6-t.I'v6< f.- v q r,,r--l hrm sfaced rhat vs. con-ois rrwould p:robably take the position and grieve it later rather -l-, r^- L.-r 'l- ^r,-l .:.-- -^-1 ird ^ I dri6- --^ i-d waiLing nine months'r. Moreover, in explaining his und- sca. d nd o[ Ehe - tec of a 'oinE L.-omma darro,, Mr. poy testified that 'the Union has to save the person from being l> A ^FF L|ih , ha rh^, -L hir r T rL-.appv with whaL we came up rvith, they couLd grieve ii". However, the notion that lt was necessary for the Union to slgn the joint recommendahion in order Eo prevent the crievor trom being laio off ,s in(onsisrenr v,lfn Ehe ."icE LndE, as conceoed hv M, R.v F^71 iF. in h a I Fcl im.n / h,,r dF.,Fd h\r Mr F:1r^, 7 by signlng the jolnt recommendatj-on the union was not rha -, ialr^, Fr^m -\r^tr .c , ha A-, j Du*p-Lng process afready plovided that protection by requiring the a^l lcdA l^ ^l: F Fha c, ra1,^, in F ha, '.6 e ,^FFr Fm^l^l,-anr Advisor position or Lhe SecreLary position. . -^- ' rr--r tLni ne U'1-on d o not -6serve - rr r.. to pursue a grievance on behalf of Ms. Comtois, I have also taken lnto account my assessment that 1t 1s rnost probable that if the Union had indicated that Ms- Comtois woufd probabfy filF ^ -, F (h- n?:c -:^ad h Mr. Durette would have included a notation to that effect in his notes. Having authored the aforementioned email (Exhibit. 24 20) dated alanuary 16, 2013, in u'hich he indicated that the a61 lFda v'6,rl.l ha :rdirin- rhat the Union nas barred fron pursuing Ehe Chevrier grievance because of agreements that wer^ reachao Detrdee Lhe Co . ege . o Ehe lJ -on a 1e Employmen! Siabl-L1r y Commirrae, Mr. Durel le would certain-ty havF I -a- rld^-o in a :. -t lv .a- "r6r.od r.e i..1 -^ rL.- . r.emenl would be utterLy inconsisLent wlth the College'6 understanding ^f lhF affF r ^f : r. rr , F..mmFFd^i ^r a^..ad' a.rlf i, Fha Union had made that assertion, Mr. Durette would have been ali - -o i - signrf cdnce e.]d would have -n all p obabll-L) made an enLry about it in his notes, remembered it at the hArr.- r,ra-ha-riira ^f L'h6 .a? ^r .^r .n\/ c,,-L on ,r,r ---. .r was made, and discussed it with the Union represent at ives, so as to disabuse them of the noLion that a grievance could be filed daeh c : i- r a^^mmar^rr '^. .n.l Fr Fi ^ ,r wr Ly I rrey thouqhl M6. coniois would I ikely tire a gricvance. I am aleo satisf1ed that rf there had been any lndication of a poLential grievance in respect of Ms. Comtois' bl ^. Fmchr M- DF I 'ri <: s'.rl ^ h^vF -e ahF ' a<r i f i6^1 I'questioned it', 'dug deeper to find out why and if there was c^f6 1-:.- .-,1 rl r.-co.t -. _^ e .- ,ff on the j olnt recommendationrr . Having regard to all of fhe circumsLances, I find the Flrida.-F di F. hrl ha a^l la^a o ^n rlrr a ^^rr --It LO be more reliable than that given by the Union,s witnesseg, whose L6 6-tnar mo,- d ref-6cCLOn of whF_ 25 hr / lr. e l-.6a- rhr rh6 F<a maar- - :'tFy )-l ,,:l I w c: id Ai I h^<F maaF i.de ^, r'h-l i n I i-F, ^f l- pr6sen_ concerns Ehey have erroneously come to befreva was ^\r r hpm r- rha a^] la.a rr .^aF ma-, in-c The doctrine of estoppel lras described as follows by Mr. Justice Sopj.nka in Maracl-e V. TravelTers Indennj,ty Co. of Canada {799I), 125 N.R. 294 lS,C.c. ), 1n paragraph 12 on page 301: act .)nn6 | dF-.r ed. The parEy relying on the doctrine must established that Fha ^Fhar h.r, v h:a l-\r, r'^rAc ^r ^^h.1,,^t h.Aa r promise or aEsurance which was intended to affect theirlegal relationshrp and to be acted on. Futthermore,the representFe musf estdbLish Lhal , in r-Iianc- or thereplasen oEio, he ac!.ed on i- or'1son6 ray 1angeohIs posltron. The Supreme CourL of Canada has also indlcated that Marac.Ie does not have to be applied "to the letter" in the context of a labour arbltration, where the equrtable doctrine of estoopel an b- adaD'ed d d applied in a rdnner cons stenL wlth the objectives and purposes of Che gowerning labour lclrri.nq lFoialal ^n hF n, rn.r.r6. ^, 1^h-,r nature of the collectiwe bargaining process, and hhe factual matrix of the grievance: Nor Man Regionaf Heafth Authorixy Inc. v. Manj.taba Assocjation af HeaTth Care Prafessianafs, supia, paragraphs 59 and 60- However, as noLed by Arbitrator Pefton in Saskatchewan Unian af Nurses v. Saskatoon Reg,1ona.1 uaAl rh ^,,rh^-i r\. tP,,r11t ar,,aevance) , guprat at paragraphs 140 and 141, that flexibilrty is not a License to disregard the do r11 -'6 cor stt en!. e-emeoLs. Reference may also usefully be made to Re Chronicle Jaurnal and C.E.P., Lac. f9f, Eupra, in which Arbitrator Surdykolrski wrote as follo\,rs, in paragraph 37: The doctrine of estoppeL was developed by the common 1aw Courts in equity to prevent the unfairnessthat resufts &hen one party, after representing to cneother party lo a contract that lt wlll either notenforce a right that it has under the contract, or rnacit will apply the contract in a particular way, eitherseeks to enforce that contractuaf rrght or to apply itin a different \day, after the other party either actedor chose not t_o act in r:eliance on the originalrepresentation and its situation cannot be restored.A party that asserts an estoppel must establish: * that the other parEy to the contract in issue made a cfear and unequivocal representation concernlng the lnterpretatlon or appfication ofthe contract; and * that the representation was directed at andaffects the legal relations between Lhe parties under the conlract; and * thal it relied upon the representation bydoing something, or foregolng the opportunity todo something, and that it would have actedotherwise but for the representation; and * lhait 1ts reliance was detrimental because thesltuatlon cannol be restored to what it was whenthe representation was made. See afso Internatianaf Fare1t praducts (Hannnand) v. Unj-ted Steefwarker1t Lacaf 2aa9 (Shifx Seniority Grievance), Euprai U.F-C.W., Lacal f75 v. pinty's Defjcjaus Faads Ine., supra; and Bearskin Lake Air Service LXd. and United Faad & Cannnerejaf Warkers InXer.natjanaj Unian, Lacaf 77Et supra. After quoting the above passage from Mr. ,fustice Sopinka's ludgment ifi Maracfe V. Traveffers Indemnity Ca- af Canada, supra, Arbitrator Bruce applied the doctrine in St. ?homas Universjty and Faculty As1aciatian af St. Thamas Gupta), supra, and found boLh the 2't University (Grievance af S AseocLo jon ono !he 9-LLevi g facu--, me"rlce r co o- es!.oppod from claiming an adjustment to his salary after the University Fr fr6 .:7- -^-, -6a On Anomaliesr 5ecommendation that three other professors be given sdlary -d:uelm-nEs bL Eha lrrere o- no so.ary .dlust-^ L fo- cne grlevor. Tn Georgfe Brown Coffege and OPSEU (Grievance of Anthony SToniak) supra, and Durham CoTTege and opsEu [Crtevance of O- Pehlenann , supya, che oocErtr- of -s.oppeL '.,as found to be applicable in the context of Enpfoyment Stabilrty Comrnittee joint recommendat ions . In the latLer case, Arb-itrator Saltman wrote, in part, as follows (at pages t 4-d a ^f -L'_ nFi^-: / .!'...tr __ 'tieTic.ird : a,.a._L aLleglng that Durham College had violated the support staff -^lla-r iva ^, f.ilin^ Although the Union contended that the ESC acled improperly, and in contraventlon of Lhe colfectiveagrc.ment, in aESioning ^4s. Bu-L Eo Ll^- Suppo L Services Offlcer C, Payband 11 poeition, the Colfegesubmrrced hac !r- ass.qnmenE lIos agrFeo !.o oy the ESC, which is a bipartite committee, and, Lherefore,thd- che Uqion wa- escopp-d fron comprdlning dbout .ne matter, In the Boardls view, the Colfege is correct v'rrh rFAhF-r F^,lric m:,ra, al,lr^,,^. ' 116 -^ r---' _-- - ----l\e agreement contains comprehensave provisions respectinglayoff and recalf, including the establlshment of Lhe ESC. rn the Board's view, it is unnecessary to consider ^F _h c r-i^.-.-_a Inthis case, the ESC made a recommendation, which was implemented by the College, that M6. BurL be assigned ^' .o- C,..j_i _-r^1_6t L... 14s. Robinson. As the ESC entered into an aqreement, it r.s srmply noL open to ihe Union Lo rFsiie f rorn chal agreement. Thls case ls substantially simifar to another between these parties in which Lhe Union was estopped from arguing thal ihe College violated fhe .ollect-Lve agre-nen! ir ass q.lrng a emplo.-e who had be^n .16 ^16,{ wh: h rhc grrevor In thaL case wrshFd to apply €or- In ontario PubLi. servi.e Enpfoyeag Union dnd Geatge Bro,,/n Catlege: Cri^.-nce of S o'niak, Mar-h 15, 1995 (Hov,e (unreported) ) ; after an employee by the name of Mr. Porco was declared surplus, the Union and College mamhar. ^l rha .qa ^nraa^ rh:r :r^rhpr an-l^1,a6 My rrl^1,,e^,r y r -L rr-lrcrrL Mr. Porco be permiLLed fo fill :he vacancy resulting from Mr, Service's retirement. Based on their !.'1r,-, !,,rc ihnloman, Frl l-,!, , ha ^l lo^a ts.a Union agreed that it was estopped from arguing that the a,l -La ^^_ l-.-:--6 F4-6Fr6*' .5 - '--r -_O al-L. , 14 -. -,66--n- -L?t Ehe union was estopped rn thrs case, the prrnciples which apply are the same. The Union members of the Eca arrF, ad i n.^ :r , rh o<na assignment of Ms. Burt to a vacancy in the position of qrrn^^rF qar\.i.pc nlfi^ar c D^\.h:hrl ll u'hi^h n,-a , mnl amFrra.l hw hF .^1 l oda ln rh^ca .i v. ',h<i -..a<the Union is precluded or, ln other \rords, estopped, from arguing thdL the Col,ege viola'ed !l_e colrectiva h l: 1 i r^ h6 ir^^:r-\r ahnt^.,aa rn, 1 nin^ -1a4 11e,/^r /^, 1A -^^11, ,^? r-- h^cil i^h Tn lha rpa',lr I hF driaw-n^a m',ci- h6 dismassed. llni^n .^r,nsal <,,d.est ed thdL those cases dre dlstingulshable from the i.nstant case on the basis that there wds no roservdElo'l of o rigl- Eo or reva in dr r, o Lher, Horrrever, as indicated above, I am not persuaded that the Union -LF ..-h, a n_ h6Le r ^f vs. Comtois. Accordingly, it is unnecessary to determine whether doing so vJould have permltted this grievance to proceed ,- -1a -.-... ro.-a.1 I,- V C a.a-S snOU o displace Ms- Heidman in the Secretary position, and agreed to have that advanced ae a joint recommendation to Lhe CoLlege PresidenL. By agreeing to have that proposed displacement advdnc-d as a lor'rL re ommendaElo-, Ei_e Unior mad^ a c-ear and unecruivocdl rppresa-rtation thd' pla^rng Ms. CorEois in LLe 29 Secretary posltlon was the proper applicatlon of the Agreemenl f- rha ra.i.!nr,-^" 'f f-- - citror ds IT'lra:ner '1the a^llada'c Ta h.r-:l c hn^,r c-,1ri-a 'rlr.F represFntation was directed at and drfecLed the 'egal aela' ons bo.,',een rh- parli^.. F Lhough 'he Un_on representatives may have thoughE that agreeing to a joint rA-^mmar/l:i ^h u'^,,1^ .^i h,6-1,,/'16 i- ,lra ., -^- of them giving any indication to the College representatives LhaE h-y wF - of _ aL vre^, thei' nrla.-ral .n -i -ke hat regard does not vitiate the normaf effect of such agreement. .irrr.r l:r'lv rharF :< ir rhr<.: F My p-v^rr, .^e:lrar^\' aware, Lhrough his receipt of Bxhibit 20 (Mi. Durette's aforementloned emaiL dated January 16, 201:) that it was the College's positlon that an agteement reached between the (-^llFdA:rd rhp IIri^n ^l_ tha Fca u,^,,1rl 1-'rv - dr\a\t.n^a In reliance upon that representation, the College president accepted the joinL recommendation. which was irr-6*6--6,l -^ .-.-:nal consideration and application of the bumping procedure under ArEr^l- 15.4. cha- rolld o herwls^ have o--n r-o.rred o7 che Agreement. In such circums.ances, it woufd be unfalr and -neqL loble ro pern. che 9r jevan a Lo p-o aed. \ere ao-ld be little point in the parties putting in all of the time and -.f^. irr,^- - I -- | ...i--^ , -.rfrrrr .. -- -r :hta .^..?se oI action to joinlly recommend to the President of the College -f rts.ccep.-ce by he P_---dent ojd no orov d- frna _'y by precluding a griewance fron reopenlng the maLter and 30 potentially undoing the agreed upon reEolution of the matter. As Arbitrator saltman aptly and euccinccly noted in tshe above-quoted passage from the majority award in Duthan CoTTege and OP9EU (crievance of O, PehTemann), eupra, at is simply not open to the Union to reEile from an agreement reached at the ESC . For the foregoing reasong, the college's preliminary objection ie upheld and the grievance ie hereby diamissed, DATED aE Burlington, Ontario, this 20th day of January, 2014. 4?Dr/t,z'' - Robert D. Hohre Sole Arbitrator