HomeMy WebLinkAboutTodorov Group 14-03-26IN THE MATTER OF AN ARBITRATION
BETWEEN:
George Brown College
(“the College”)
and
OPSEU
(“the Union”)
Todorov Group Classification Grievance #2013-0557-0001
ARBITRATOR:Mary Lou Tims
APPEARANCES:
FOR THE COLLEGE:Dan Michaluk, Counsel
FOR THE UNION:Christine Legault, Steward
A hearing was held in Toronto on March 11, 2014.
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INTERIM AWARD
I have before me a group classification grievance dated April 17, 2013, alleging that the
position of Systems Analyst held by grievors Maria Lee, Gao Jian (Jerry) Sun and Alexander
Todorov is incorrectly evaluated at payband K and should be evaluated at payband L.
The grievance was referred to expedited arbitration in accordance with article 18.4.3 of
the parties’ collective agreement. When the hearing was convened, the College advanced two
motions upon which it sought rulings.
In addressing such motions, the parties referred to a number of provisions of their
collective agreement, including those set out as follows:
ARTICLE 7 WAGES
. . .
7.2 Position Description Form
Each employee will be provided with a copy of his/her current Position Description Form
(PDF) upon the date of hire and/or at the employee’s request.
7.2.1 Classification Information
Within ten (10) days of receipt of a written request by an employee, the College will
provide to the employee, the point rating by factor for his/her position.
. . .
ARTICLE 18 COMPLAINTS/GRIEVANCES
. . .
18.4 Classification Grievances
. . .
18.4.2. Grievance Process
18.4.2.1 Step 1 – Meeting and Information Provided
The College Official shall arrange a meeting within fourteen (14) days after receiving the
grievance to permit the employee and a Local Union Representative the opportunity of
making representations in support of the grievance. The College Official shall ensure
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that the current Position Description Form (PDF), as per Article 7.2, is provided at least
five (5) days prior to the meeting. At the meeting, the employee must first indicate in
writing whether he/she is in agreement with the PDF and if not what specific
disagreements he/she has with it. A discussion to resolve any differences shall then
take place. At this meeting, following discussion on the PDF, both parties will exchange,
in writing, the point rating by factor for the position in dispute.
18.4.2.2 College Official’s Decision
Within fourteen (14) days after the receipt of the point rating by factor from the Union,
the College Official shall give his/her decision in writing. It is understood that the
grievance cannot proceed further until the point rating by factor and the specific
disagreements on the PDF, if any, have been received by the College Official, in writing
from the Union.
18.4.2.3 Referral to Arbitration After Step 1
Where the grievance has not been resolved at Step 1 but there is agreement concerning
the PDF, the matter may be referred directly to Arbitration by notice in writing given to
the College, within fourteen (14) days of the date the grievor should have received the
College’s decision under Step 1. The matter will be referred to a sole arbitrator as
provided in Article 18.4.3.
. . .
18.4.3 Expedited Arbitration
Where the grievance has not been resolved, it shall proceed as herein provided. . . .
Pursuant to article 18.4.3.4 of the contract, the parties exchanged and forwarded to me
written Briefs in advance of the hearing.
The College’s submissions, received February 24, 2014, state that there is one factor in
dispute between the parties, that being Education 1B.
The Union’s pre-hearing submissions, received February 25, 2014, indicate that there
are four factors in dispute, namely Education 1B, Service Delivery, Communication and Physical
Effort. Also relevant for purposes of the College’s motions, I note that the Union included and
addressed in its Brief two classification arbitration awards relating to positions at other
Colleges.
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Included in the College’s Brief is a Step 1 Grievance Response dated June 13, 2013,
referencing a Step 1 meeting held on May 30, 2013. The College advised therein that it denied
the grievance. It noted that the Union agreed at the Step 1 meeting with the content of the
PDF, but challenged the rating of Education 1B, Service Delivery, Communication and Physical
Effort. The College stated in its Step 1 Response that it had rated Education 1B at level 2
(additional requirements obtained by course(s) with a total of 100 hours or less), with the PDF
stating that “knowledge of Oracle and SQL are (sic) required prior to commencing this position,
specifically in the areas of Oracle Forms, Oracle Reports, SQL and PL/SQL” and that courses are
“also required in other technologies such as .Net.” The Union, according to the College’s Step
1 Response, did not challenge the PDF in that form as it pertained to Education 1B, but took the
position that the factor should be rated at level 3 (additional requirements obtained by
course(s) with a total between 101 and 520 hours).
The College, however, advised the Union in the Step 1 Response that it was amending
the PDF as it relates to Education 1B to reflect no additional requirements and was re-
evaluating the factor from level 2 to level 1. It explained as follows in its Step 1 Response:
The College had level 2 for 12 points. . . . Following an extensive review, the College has
determined that this additional education is not required pre-hire as this has already
been factored into Section 2. Experience – Minimum of 8 years. Furthermore, it is
described as “Practical work experience with Oracle RDBMS, SQL, PL/SQL, Forms and
Reports.” The College is of the view that it would be double counting these courses by
giving credit under level 2 for Section 1B and under Section 2, Experience. Further,
Education 1B does not include courses that are taken post hire. Therefore, the
education for factor 1.B level 2 will be removed as it is already part of the Experience
section.
. . .
In summary, the College is of the view that the PDF accurately reflects the position
duties as required, with the exception of Section 1B. Education. The example under
“additional requirements obtained by course(s) of a total of 100 hours or more” will be
removed and the evaluation will be changed to reflect this section as level 1. “No
additional requirements.”
The parties agreed that attached to the College’s Step 1 Response, and included in the
College’s pre-hearing Brief, was a revised PDF that reflected “no additional requirements”
under Education 1B.
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The Union commented as follows in its Brief on the College’s re-evaluation of Education
1B from level 2 to level 1:
Following the Step 1 grievance meeting, the College announced that it had determined
that this additional education is not required pre-hire as this has already been counted
under Factor 2 Experience – Minimum 8 years. The Union is puzzled by this sudden
change in educational requirements given that at no time during meetings to update the
position description between management and staff was there any indication
management believed the additional course work was double counting.
The Union forwarded to the College an e-mail dated June 24, 2013 included in the
College’s Brief. Such e-mail states:
As per article 18.4.2.3 we would like to forward this grievance on to arbitration under
Article 18.4.3. The only area in dispute is Education 1B – Currently the College claims no
additional education is required (L1, 3 pts) and the Union still claims an additional 101 to
520 hours (L3, 21 pts). Please confirm your agreement with this request and we will
forward for arbitration.
The College’s response to the Union’s request, by e-mail dated July 9, 2013, is also
included in the College’s Brief, stating as follows:
We confirm agreement to your request to forward this grievance directly to expedited
arbitration.
The grievance was referred to and scheduled for expedited arbitration. As noted above,
prior to the hearing and in accordance with the collective agreement, I received Briefs from the
College and the Union on February 24 and 25, 2014 respectively.
The parties referred to an e-mail dated February 26, 2014 from the Union’s
representative to the College stating as follows:
After speaking with Krista this morning I realized where the College may have believed,
based on my email dated 24-June-2013, that the only factor the Union disagreed with
was Education 1B.
Article 18.4.2.3 of the Support Staff Collective Agreement . . . states . . . .
In my email where I state “The only area in dispute is Education 1B” I was indicating that
the Union was in agreement with all the content of the PDF save for the content of
Education 1B. As the article refers only to content and not the corepoints I did not also
mention the disagreement with the corepoints for Factors 7, 8, and 9. Under Factors 7,
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8, and 9 the Union does not dispute the content; only the corepoints that were awarded
to those factors.
The parties also relied upon a November 13, 2013 memorandum from the Joint
Classification Committee (“the JCC”) to Human Resource Directors and Support Staff Local
Union Presidents, signed by both the Union and Management Committee Co-chairs. Such
memorandum states in part as follows:
This memorandum is being sent to the colleges and local unions to emphasize the
parameters regarding the classification hearing process. . . .
. . .
3. 18.4.3.4 Information to Arbitrators
The Arbitrators advised that at times additional information is provided in the
arbitration brief that is not relevant to the specific grievance. This has been in the form
of arbitration awards, PDFs of other colleges’ positions or PDFs of other positions at the
same college. This matter was the subject of previous correspondence from the JCC, in
2010 and will be reiterated. The expedited process for hearing classification grievances
is restricted to having an Arbitrator determine whether the grievor’s PDF accurately
reflects assigned job content and whether the job in dispute is properly evaluated.
There is no provision in the Classification Grievances Article for additional material in
the arbitration brief, other than that which is specifically related to the position in
dispute. Arbitrators cannot review other positions’ PDFs or arbitration awards related
to other positions, as part of the expedited process. There should be no added material
included in the arbitration briefs. This includes arbitration awards and PDF’s for
positions other than the one in dispute between the parties.
The parties agreed that the College’s motions are properly before me for determination
and that they should be decided on the bases of the parties’ submissions and the documentary
evidence referenced above. Neither party sought the opportunity to adduceviva voce
evidence.
The College advanced the following two positions:
1.Given the Union’s June 24, 2013 e-mail to the College, it is not open to the Union to
challenge in these proceedings the rating of Service Delivery, Communication and
Physical Effort.
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2.Further, the grievance should be dismissed because the Union referred to and
included in its Brief classification arbitration awards pertaining to positions at other
Colleges contrary to the November 13, 2013 memorandum from the JCC.
The College argued that the Union’s June 24, 2013 e-mail was clear and unambiguous in
representing to the College that “the only area in dispute is Education 1B.” It asserted that
article 18.4.2.2 of the collective agreement requires that the Union define its position clearly.
In the College’s submission, the Union arguably did so by way of its June 24 e-mail. Counsel
noted that there is nothing in the Union’s e-mail indicating that it was speaking only of PDF
content where it represented to the College that there was only the one area in dispute, but
that rather, the Union made an unqualified representation to the College that the only factor in
dispute was Education 1B. In the College’s submission, such clear representation was intended
to effect legal relations between the parties, and the College in fact did rely to its detriment on
such representation in agreeing to forego Step 2 of the grievance procedure.
The College asked me to find that the Union is now bound by its representation that
“the only area in dispute is Education 1B,” and that it is therefore not open to it in these
proceedings to claim that Service Delivery, Communication and/or Physical Effort have been
improperly evaluated by the College.
The College asked me to conclude that the Union is estopped from advancing claims
other than that relating to Education 1B. In addition or in the alternative, the College asked me
to find that the grievance as it relates to the rating of Service Delivery, Communication, and
Physical Effort has been withdrawn or settled. In the further alternative, the College asked me
to find that it would be an abuse of process to permit the Union to advance claims beyond “the
only area in dispute” as represented to the College in June 2013.
The College acknowledged that even if the Union were successful at arbitration in
establishing that Education 1B should be rated at level 3, that the corresponding change in the
position’s core points would not result in a change in payband. While Counsel acknowledged
that one might wonder why the Union in such circumstances would choose to proceed to
arbitration on the rating of that single factor only, he suggested that there are various possible
explanations underlying such decision. More fundamentally, however, the College took the
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position that the Union’s reasons for choosing to do so are irrelevant, as I must give effect to
what it characterizes as the Union’s clear June 24, 2013 representation.
Counsel argued in particular that anex post factoexplanation such as that advanced in
the Union’s February 26, 2014 e-mail cannot properly be relied upon to inform my
interpretation of a representation made by the Union in June 2013. In the College’s
submission, my task is to construe the objective words used by the Union that “the only area in
dispute is Education 1B” and not what the Union now says that it intended to represent to the
College. Counsel emphasized that the Union’s June 2013 representation to the College was not
qualified or limited to questions of PDF content, but rather unequivocally stated that “the only
area in dispute” was Education 1B. In the College’s submission, I must now hold the Union to
such clear and unqualified representation intended to effect legal relations and detrimentally
relied upon by the College.
While the College suggested that the Union’s motive is for the most part an irrelevant
consideration, Counsel raised the possibility that the language used in the Union’s June 24,
2013 e-mail was “calculated to deceive.” In the College’s submission, to the extent that the
Union sought to “trick the College,” I should not permit what Counsel characterized as such
abuse of process.
The College referred to and relied upon the following authorities in support of its
positions advanced before me:The Queen (Ontario) v. Ron Engineering,[1981] 1 SCR 111;Re
International Union of United Automobile, Aircraft and Agricultural Implement Workers of
America, Local 458 and Massey-Harris Company Ltd.(1953), 4 L.A.C. 1579;Re Ottawa Humane
Society and Ottawa-Carleton Public Employees Union(2005), 137 L.A.C. 337;Re Akiba Inv. Ltd.,
[1963] 1 O.R. 513 (HCJ);Re City of Toronto and CUPE, Local 79(2003), 120 L.A.C. (4th) 225 (SCC);
andRe Abbotsford Police Dept. and Teamsters, Local 31(2007), 168 L.A.C. (4th) 245.
The College noted as well that the Union included and addressed in its pre-hearing Brief
classification arbitration awards pertaining to positions at other Colleges. In Counsel’s
submission, this was contrary to the November 2013 Memorandum from the JCC. While the
College did not suggest that the language of the JCC memorandum is mandatory in nature, it
argued that the Union’s failure to respect the parties’ joint understanding of what is
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appropriately relied upon in the expedited arbitration process must be taken seriously.
Otherwise, Counsel suggested, the role of the JCC is undermined and its jointly issued
recommendations are rendered meaningless.
In addition, the College asserted that the Union’s choice to include arbitration awards
regarding other positions in its Brief has fundamentally compromised the fairness of these
proceedings. In the College’s submission, once improper material has been submitted for the
consideration of the arbitrator, one “can’t unscramble the egg.” While the College
acknowledged that arbitrators at times hear evidence which they are ultimately required to
disregard, it suggested that to proceed here on that basis “gives the College cold comfort.” It
asked me to note that it respected the directive of the JCC, and did not include in its Brief
arbitration awards which it may have considered of assistance. In the College’s submission, to
find that the Union’s disregard of the JCC’s clearly communicated recommendation bears no
real consequences “tends to escalate things” and invites disregard of JCC directives.
The College asked me therefore to order a remedy that reflects what it suggests was a
serious impropriety on the Union’s part. To the extent that the Union’s representative asserts
that she was not aware of the JCC directive, the College argued that “ignorance of the law” can
be no excuse, and should not stand in the way of fashioning a remedial response that drives
home the alleged seriousness of the Union’s actions here.
The College suggested that Courts and arbitrators recognize that abuse of process must
be addressed in a meaningful way so as to protect the integrity of the process before them. In
the present circumstances, the College urged me to conclude that the Union has acted in such a
way as to compromise the fairness of these proceedings. It asserted that I must control the
process before me, and argued that I have broad discretion to fashion a remedy appropriate in
the circumstances. It asked me to conclude that on the facts before me, I should dismiss the
grievance. In urging me to so order, Counsel noted that this should not be regarded as labour
relations “capital punishment” here, since the Union would be free in the context of a
continuing grievance related to classification, to file a new grievance. In the College’s
submission, however, I should deliver a message to the Union that it “muddled the process up
so much,” that it will have to “start again” and “come back when it’s ready.” College Counsel
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acknowledged, in response to my questions, that the concerns voiced by the College might be
addressed in some measure if the case on the merits, whatever its proper scope, is heard by a
different arbitrator with new Briefs filed. Counsel alluded to the expense incurred by so
proceeding, however, and was clear in his submission that dismissal of the grievance is the
more appropriate response in the circumstances before me.
The Union’s representative, in response, acknowledged the JCC’s November 2013
memorandum, but stated that she was not aware of it when submitting the Union’s Brief in this
matter. She accepted that the Union is to abide by the JCC’s recommendations, and that its
Brief delivered to me ought therefore not to have included the arbitration awards in question.
She suggested, however, that the College’s concern is addressed through the Union’s
withdrawal of the arbitration awards from its Brief and its agreement that I should disregard
such materials. That said, the Union voiced no objection when I queried the appropriateness of
permitting the College the option of requiring that another arbitrator appointed in accordance
with the collective agreement hear the merits of this grievance.
The Union accepted the College’s submission that in considering its June 24, 2013 e-
mail, I am to give effect to the Union’s intention “as so expressed,” applying “its language in the
apparent sense in which it is used. . . .” (Re Massey-Harris Company, supra,p. 1580) It urged
me to conclude, however, that the Union’s e-mail so read does not support the position
advanced by the College here.
The Union denied that it sought to mislead or deceive the College through its June 24,
2013 e-mail. It emphasized that its e-mail was, on its face, a request “as per article 18.4.2.3” of
the collective agreement that the College agree to proceed directly to arbitration. In the
Union’s submission, the PDF and core point ratings are treated as two different documents in
the collective agreement. It referred specifically to articles 7.2, 7.2.1, and 18.4.2.1 in this
regard. Consistent with this, in the Union’s view, article 18.4.2.3 of the collective agreement,
expressly referenced in the e-mail in question, provides that where there is agreement on PDF
content, the parties can proceed to expedited arbitration without meeting at Step 2. In the
Union’s submission, article 18.4.2.3 does not address factor ratings, or disagreements thereon.
On the facts before me, where the parties were no longer in complete agreement on the
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content of the PDF given the College’s amendment to the Education 1B section after Step 1, the
Union proposed and sought the College’s agreement that the parties nonetheless move directly
to arbitration. The Union’s representative asked me to note that the Union did not expressly
withdraw the grievance as it related to the rating of Service Delivery, Communication and
Physical Effort addressed by the parties at Step 1. She further argued that on its face, the June
24, 2013 e-mail written “as per article 18.4.2.3” addressed PDF content only, and was accurate
in therefore stating that Education 1B was the “only area in dispute.” In the Union’s submission,
there is no basis upon which I can conclude that the June 24, 2013 e-mail read “as so
expressed” was anything more than a request to move directly to arbitration where one area of
the PDF was in dispute.
The Union urged me to so find based on what it asserted was the clear language of its e-
mail written “as per article 18.4.2.3.” It suggested as well that its position is the only result
supported by common sense. The Union argued that it was most implausible that it would
withdraw its claim for re-evaluation of three out of four disputed factors addressed at Step 1
and yet proceed to arbitration regarding the rating of a single factor that could have no impact
on payband.
The Union asked me to deny the College’s motions and to find that it may challenge not
only the PDF content for and rating of Education 1B, but also the rating of Service Delivery,
Communication and Physical Effort at the arbitration of the April 17, 2013 grievance.
Having considered the parties’ submissions, I accept that my determination of whether
the Union represented to the College that it would not pursue at the arbitration of this
grievance claims that Service Delivery, Communication and Physical Effort were improperly
rated must be based on the language used by the Union in its June 24, 2013 e-mail. The College
argued and the Union accepted that such language is clear. The parties agreed and I accept
that I should construe it in the same way that the board of arbitration inRe Massey-Harris,
supra,interpreted the collective agreement before it. The Board there stated as follows:
Our duty is to interpret the provisions of Clause 98 as it affects pay for statutory
holidays when a lay-off is called. Accordingly, we must ascertain the meaning of what is
written into that clause and to give effect to the intention of the signatories to the
Agreement as so expressed. If, on its face, the clause is logical and is unambiguous, we
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are required to apply its language in the apparent sense in which it is used,
notwithstanding that the result may be obnoxious to one side or the other. (p. 1580)
In considering the College’s motion, the decision inRe Ottawa Humane Society, supra, is
also instructive.The grievor there was discharged, and the Employer wrote to the Union during
the grievance procedure stating that it “withdraws our contention that the employee was
subject to probation.” (p.338) A week before the hearing, the Employer put the Union on
notice that it would object at the hearing that the grievor was a probationary employee at the
time of discharge and that her grievance was inarbitrable on such basis. The Union argued
before the arbitrator that it was not open to the Employer to so object, having withdrawn such
position during the grievance procedure.
The arbitrator concluded that the Employer could not be permitted to “resile from its
position,” and commented as follows:
As the jurisprudence reflects, the parties must conduct themselves during the course of
the grievance procedure in such a way as to respect the process. That process is
intended to narrow and define the issues which will ultimately proceed before a board
of arbitration if full settlement is not achieved. During the course of that process they
are bound by those partial settlements which may be made, and so should not lightly
make such partial settlements unless they are willing to be bound by them. If a party
which withdraws a position or makes a partial settlement is allowed thereafter to resile
from its position, the integrity of the grievance process is substantially undermined.
Additionally, the scope and course of the arbitration hearing itself is made substantially
less certain, with resulting inefficiencies and potential prejudice to the parties
themselves. (pp. 341-42)
Such comments apply equally in the circumstances before me. The parties’ dispute here
was focussed on the proper interpretation of the Union’s June 2013 representation to the
College. The Union did not contest the College’s assertion that its representation was intended
to effect legal relations, nor that it was in fact relied upon by the College to its detriment. I
accept that if I am ultimately satisfied that the Union clearly represented that it would not
challenge the rating of any factor other than Education 1B at arbitration, or that it
unambiguously withdrew the grievance to the extent that it had asserted that Service Delivery,
Communication or Physical Effort were improperly evaluated, the Union should be held to that
which it promised.
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I accept as well the College’s submission that I must ascertain the meaning of the
Union’s representation, as it was expressed, and thatex post factostatements of intention by
the Union cannot effectively modify that which was clearly and unambiguously stated and
relied upon by the College. The following comments of the Master inRe Akiba, supra,are
usefully considered in this regard:
Intention is always a nebulous fact. When one is testing the fact of intention it is not
sufficient to take the statement of intention made by the person involved. Such
statements must be scrutinized with care as they are generally of a self-serving nature,
particularly if made ex post facto.
The parties both recognized that if the Union proceeded to arbitration only on the rating
and PDF content of Education 1B, there would be no change in payband for the grievors even if
the grievance was upheld. The College acknowledged that a decision by the Union to pursue its
claim on only one of four factors initially disputed may be somewhat puzzling in such
circumstances. I nonetheless accept the College’s argument that it is open to any party to enter
into an “improvident” agreement and that if I find that the Union clearly represented to the
College that it would pursue at arbitration a claim that only one factor was improperly rated, it
must be held to such representation.
Counsel for the College emphasized as well my role as arbitrator in maintaining the
integrity of the process before me. He noted that abuse of process is a broad and flexible
doctrine which permits and requires that the Court fashion the appropriate response to
safeguard the process before it. This was articulated inRe City of Toronto and CUPE, Local 79,
supra,where the Court stated:
Judges have an inherent and residual discretion to prevent an abuse of the court’s
process. This concept of abuse of process was described at common law as proceedings
“unfair to the point that they are contrary to the interest of justice.” (para 35)
. . .
In the context that interests us here, the doctrine of abuse of process engages “the
inherent power of the court to prevent the misuse of its procedure, in a way that would
. . . bring the administration of justice into disrepute” (Canam Enterprises Inc. v. Coles
(2000), 51 O.R. (3d) 481 . . .perGoudge J.A., dissenting (approved [2002] 3 S.C.R.
307 . . .). Goudge J.A. expanded on that concept in the following terms at paras 55 – 56:
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The doctrine of abuse of process engages the inherent power of the court to
prevent the misuse of its procedure, in a way that would be manifestly unfair to
a party to the litigation before it or would in some other way bring the
administration of justice into disrepute. It is a flexible doctrine. . . . (para 37)
. . .
In all of its applications, the primary focus of the doctrine of abuse of process is the
integrity of the adjudicative functions of courts. . . . (T)he focus is less on the interest of
parties and more on the integrity of judicial decision making as a branch of the
administration of justice. (para 43)
I accept as well, and the Union did not dispute, that an arbitrator has the jurisdiction
and broad discretion to address with appropriate remedial measures abuse of process in
proceedings before him. I note in this regard and agree with the decision inRe Abbotsford
Police, supra,where the arbitrator stated that “if there has been an abuse of a process, and a
remedy to be fashioned, it must be part of my jurisdiction to do so as part of determining the
case whose process has allegedly been abused.” (p. 250)
While the above stated principles are not in dispute here, the parties disagree on their
application to the facts before me.
The College’s motion seeking to restrict the Union from advancing a claim beyond that
relating to Education 1B rests on the Union’s June 24, 2013 e-mail. In considering the Union’s
communication to the College, it is notable that the Union stated, “As per article 18.4.2.3 we
would like to forward this grievance on to arbitration under Article 18.4.3” and sought the
College’s agreement to do so.
Article 18.4.2.3. contemplates that a grievance unresolved at Step 1, “may be referred
directly to Arbitration” with notice to the College, where “there is agreement concerning the
PDF.” The College’s Step 1 Response records that the Union agreed with the content of the PDF
at the Step 1 meeting but challenged the rating of Education 1B, Service Delivery,
Communication and Physical Effort. According to the College’s Response, the Union asserted at
the Step 1 meeting that Education 1B rated at that time at level 2 was properly rated at level 3.
Subsequently, however, the College advised by its June 13, 2013 Step 1 Response that it revised
the PDF as it relates to Education 1B and re-evaluated this factor accordingly. It forwarded to
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the Union with the Step 1 Response a PDF amended to reflect the College’s position with
respect to Education 1B.
The June 24, 2013 memorandum in issue here followed and the Union requested that
the matter be forwarded to arbitration “as per article 18.4.2.3” although there was no longer
agreement regarding the PDF as contemplated by such provision. The Union sought the
College’s agreement that the grievance could bypass Step 2 and proceed directly to arbitration,
and it stated that “the only area in dispute is Education 1B.” In the context of such request to
proceed directly to arbitration “as per article 18.4.2.3” despite the fact that there was not
complete agreement on the content of the PDF given the College’s revisions after Step 1, I do
not accept that the Union clearly represented to the College that it would not challenge the
point rating of any factor other than Education 1B at arbitration, or that it withdrew in part the
grievance where it stated that “the only area in dispute is Education 1B.” Rather, I find that in
the context of such request to proceed directly to arbitration pursuant to article 18.4.2.3
despite the fact that there was not complete agreement on the content of the PDF as
contemplated by such provision, the Union represented that the only disagreement on PDF
content related to Education 1B.
While I recognize that such determination is entirely consistent with the Union’s after
the fact explanation set out in its February 2014 e-mail, I wish to be clear that that is not the
basis upon which I reach my conclusion. Rather, although I accept the parties’ submissions that
the contentious language here must be considered and construed “as so expressed,” and that I
am required to apply it “in the apparent sense in which it is used,” it is in doing so that I reject
the College’s assertion that the Union clearly represented to it through its June 2013 e-mail that
it would pursue at arbitration only its claims regarding Education 1B.
Having so found, I reject the College’s submission that the Union is estopped in the
present circumstances from challenging at arbitration the ratings of Service Delivery,
Communication and Physical Effort. Similarly, having rejected the College’s assertion that the
Union represented to it that it would pursue at arbitration only its claims relating to Education
1B, I am unable to conclude that this is a case such asRe Ottawa Humane Society, supra,where
the Union can be understood as having withdrawn certain claims encompassed in the
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grievance. Further, in so finding, I am not satisfied that the Union has acted in a manner that
constitutes abuse of process, and I note specifically that there is no evidence before me which
would substantiate a finding that the Union sought to deceive the College. I therefore deny
the College’s first motion and I find that it is open to the Union to challenge through the
arbitration of the April 2013 grievance the rating of Service Delivery, Communication and
Physical Effort.
The College further argued that I should dismiss the grievance as an appropriate
remedial response to the Union’s inclusion of arbitration awards in its Brief. The JCC’s
November 2013 memorandum expressly noted that the parties were not to include such
materials in Briefs and that “this matter was the subject of previous correspondence from the
JCC in 2010. . . .” The Union accepted that it should not have included and referred to the
arbitration awards in question in its Brief.
I agree with the College that it is simply no answer for the Union to assert that its
representative was not made aware of the JCC’s memorandum. Just as it is incumbent upon
arbitrators appointed under the Expedited Classification Arbitration provisions of the collective
agreement to respect “the parameters regarding the classification hearing process” as
contemplated by and communicated jointly by the parties through the JCC, so is it incumbent
upon the parties to ensure that their representatives are aware of the parties’ mutual
expectations regarding the expedited arbitration process. The parties should be able to count
on arbitrators hearing such cases to ensure that those appearing before them abide by what
the JCC has identified as the proper “parameters” of the process.
The College suggested that the role of the JCC is undermined when one of the parties at
arbitration disregards its clear direction, and that the proceedings before me have been tainted
by unfairness. Counsel was clear that, from the College’s perspective, it was not enough to
simply seek my assurance that the materials improperly included in the Union’s Brief will be
disregarded.
Arbitrators are, of course, on occasion required to render decisions without regard for
certain evidence adduced before them, or without taking into account information conveyed
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during mediation which may have preceded arbitration. Arbitrators ensure that their decisions
are based only on that properly considered.
That said, I accept that the expedited arbitration process agreed to by the parties in
their collective agreement is in some ways unique and that the College’s position must be
considered in that context.
The arbitration awards referred to by the Union here, and objected to by the College,
were included in a Brief that the Union was required under article 18.4.3.4 of the collective
agreement to deliver to the College at the same time that it was delivered to me, with the
expectation that I would review such Brief prior to the hearing. In such circumstances, the
College had no opportunity to object to that which was included in the Union’s Brief until the
Brief was potentially already reviewed and the hearing convened.
It is particularly important in this context that the parties respect what the JCC
described as the “parameters regarding the classification hearing process” and not include in
their Briefs materials that the parties recognize are not properly placed before the arbitrator.
This is quite different from cases in which an arbitrator proceeds to hear and determine a
grievance, assuring the parties that he will have no regard for discussions that took place during
mediation that may have preceded the arbitration. There the arbitrator only so proceeds with
the express agreement of the parties. Likewise, where an arbitrator reserves a ruling on the
admissibility of evidence and receives it subject to a party’s objection with the understanding
that he will disregard it if he ultimately finds it to be inadmissible, the arbitrator’s decision to so
proceed is only made after both parties have the opportunity to make full submissions.
Where pre-hearing Briefs are delivered to the arbitrator in accordance with the
collective agreement with the expectation that the arbitrator reviews them prior to the
hearing, there is no opportunity for either party to raise in advance objections to the content of
the Brief.
I have no doubt that an arbitrator hearing an expedited classification case under the
parties’ collective agreement is able to render a decision disregarding materials or evidence
determined to not be properly before him and I am not convinced that the fairness of the
proceedings before me has in fact been compromised. If the hearing of the merits of the
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grievance proceeds before me, the arbitration awards referenced by the Union in its Brief will
not be considered in rendering my decision.
That said, I understand the College’s concern that to simply proceed in these
circumstances based on such assurance potentially “sends the wrong message” that there are
no consequences where parties include in pre-hearing Briefs materials that the JCC has
indicated should not be placed before arbitrators. While the JCC memorandum does not, of
course, form part of the parties’ collective agreement, and while there is no suggestion in such
memorandum that the severe consequences which the College argued would be appropriate
here should follow where either party disregards the JCC’s recommendations, I accept that the
parties should not be left with the impression that they are free to disregard such
recommendations as it may suit them to do so.
The College argued that I must fashion “an appropriate and sensible remedy” in the
circumstances before me. It urged me to conclude that I should dismiss the grievance, Counsel
noting that it would be open to the Union to file a new grievance. Whether or not this would
be the appropriate outcome in another case, I need not and do not decide. On the facts before
me, however, I am not convinced that the grievance before me should be dismissed on this
basis. I do not accept that the fairness of the proceedings has been compromised. I do,
however, recognize the importance of conveying to the parties that they are to abide by and
respect the recommendations of the JCC. In considering what might be an “appropriate and
sensible” response in the circumstances before me, I am of the view that the College’s concern
can be fully addressed with little or no impact on cost or on length of the proceedings by
making the rather unique order that the College may, as detailed as follows, require that the
merits of the case be heard by another arbitrator who has not seen and will not see the Union’s
Brief filed with me. I note that the Union raised no objection before me to so proceeding. I
note as well that the hearing before me was bifurcated, and the parties dealt only with the
College’s motions on the first day. The hearing of the merits of the grievance has therefore not
commenced and another day will be required. Similarly, given my decision herein regarding the
scope of the grievance before me, the College may in any event choose to file a new Brief
addressing the three additional factors that I have accepted are properly before me for
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determination. I am satisfied that it is appropriate in all of these circumstances and on the
bases set out as follows, to grant to the College the option of requiring that the merits of the
case be determined by a different arbitrator.
I therefore order that the College may notify the Union within thirty days of the date of
this Interim Award, that it chooses to have the merits of the April 17, 2013 grievance placed
before and determined by another arbitrator to be agreed upon or appointed by the parties in
accordance with the collective agreement, with the proviso that in so doing, the College will
accept the jurisdiction of such arbitrator so appointed to hear and determine the merits of the
grievance and will accept before such arbitrator that the scope of the grievance is as I have
determined herein. Should the College so notify the Union, the parties will take the
appropriate steps under the collective agreement to ensure that the merits of the grievance are
placed before another arbitrator for determination and to the extent that they experience any
difficulty in doing so, I retain jurisdiction in all respects necessary to assist them in doing so and
more generally, in all respects necessary to implement this order. The Union’s Brief filed with
me in these proceedings is not to be delivered to the arbitrator appointed by the parties in
accordance with this order, until the arbitration awards and references thereto have been
deleted.
If the College does not within thirty days of the date of this Interim Award so notify the
Union that it wishes to have the merits of the April 17, 2013 grievance heard and determined
by another arbitrator as set out above, upon request by either party, the hearing of the merits
of the April 17, 2013 grievance will be scheduled to proceed before me and my jurisdiction in
this matter is retained.
The College reserved its right to take whatever position it may consider advisable as to
the appropriate forum for the determination of the merits of the grievance, and specifically, as
to whether a board of arbitration ought to be appointed. Should the College notify the Union
that it wishes to have the merits of the April 17, 2013 grievance heard and determined by
another arbitrator as set out above, this will be without prejudice to any position the College
may take as to whether a board of arbitration chaired by such arbitrator should hear the merits
of the grievance.
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The parties reached agreement on certain points during the hearing before me. First,
the Union’s representative advised that the Union will not challenge at arbitration the content
of the PDF as it relates to Education 1B and will not challenge the rating of that factor.
Further, the parties agreed that the June 2013 PDF included in the College’s Brief will be
the PDF in issue before the arbitrator hearing the merits of the grievance, but that it will be
open to the Union to challenge the content of such PDF as it relates to the disputed factors, and
that it will be open to the Union to refer to earlier versions of the PDF in support of positions it
advances.
My jurisdiction in this matter is retained as set out herein.
DATED at TORONTO this 26th day of March, 2014.
“M. Tims”
__________________________________________
Mary Lou Tims, Arbitrator