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HomeMy WebLinkAboutUnion 15-12-15IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act, 2008 BETWEEN: ALGONQUIN COLLEGE (“College”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) (Re: Article 2 – Personal Support Worker Program) ARBITRATOR: Jasbir Parmar On Behalf of the College: J.D. Sharp, Counsel Katherine Root, Labour Relations Specialist Olivia Crossman, Student-at-Law Barb Foulds, Dean, School of Nursing On Behalf of the Union: Jane Letton, Counsel J.P. Lamarche, Chief Steward, OPSEU, Local 415 Pat Kennedy, President, OPSEU, Local 415 Jack Wilson, 1st Vice-President, OPSEU, Local 415 This matter was heard on November 30, 2015, in Ottawa, Ontario. 1 1. This decision is in respect of a grievance filed by the Union, dated January 5, 2011, alleging a breach of Articles 1, 2, 3, and 27 in respect of cost centre 541F. The College has raised a preliminary issue, and seeks to have the grievance dismissed as inarbitrable. 2. On February 3, 2011, after the grievance was processed through the grievance process, the Union referred the 2011 grievance to arbitration. 3. Meanwhile, the Union filed another grievance on January 9, 2012. It similarly asserted violations of Articles 1, 2, 3, and 27. These violations, this grievance contends, occurred in respect of Nursing Studies. Other than the words “Nursing Studies”, rather than “cost centre 541F”, the 2011 and 2012 grievances are identical. 4. The 2012 grievance was referred for arbitration and scheduled for hearing before another arbitrator. In advance of the hearing, by a letter dated October 15, 2012, the Union provided the College with particulars of the 2012 grievance. The Union stated therein that the grievance related to staffing in the College’s “Nursing Studies area”, and specifically included the Bachelor of Science in Nursing Program, the Practical Nursing Program, and the Personal Support Worker Program. The Personal Support Worker Program is cost centre 541F. The Union asserted that there were sufficient hours in the Nursing Studies department to justify ten additional full-time positions within the department. 5. The parties met on the scheduled hearing date, and on a few other dates, and engaged in a mediation process. 6. On February 4, 2013, the Union wrote the College seeking production of certain documents in relation to the 2012 grievance. In this letter, the Union again identified the 2012 grievance as being in relation to staffing of the College’s nursing programs, again specifically including the Personal Support Worker Program. 2 7. Subsequently, the Union withdrew the 2012 grievance. 8. There is no written documentation from the Union confirming this withdrawal. However, there is written documentation from the College’s counsel, dated December 4, 2013, indicating the Union had withdrawn the 2012 grievance. This letter also notes that since the filing of the 2012 grievance, the College had announced an intention to hire three additional full-time positions. That letter served as written confirmation of the College’s commitment in that respect. 9. Since that time, the Union has requested the 2011 grievance be set for hearing, and the matter was referred to me. In this grievance, the Union is asking that full-time positions in the Personal Support Worker Program be posted and filled. SUMMARY OF THE PARTIES’ SUBMISSIONS 10. The College notes that the 2012 grievance was withdrawn with no reference to the withdrawal being on a “without prejudice” basis. 11. The College submits that the Union decided to advance the 2012 grievance to arbitration because it was a broader grievance, one that included the dispute underlying the 2011 grievance. The College submits that the Union’s decision to withdraw the 2012 grievance should be seen as an admission that they had no case with respect to nursing studies, including with respect to cost centre 541 which is part of the nursing studies department. 12. The College submits that the subject matter of the 2011 grievance was captured in the 2012 grievance, and therefore has already been litigated in the context of the 2012 grievance and then withdrawn in the context of the 2012 grievance. 13. The College relies on the decision of Arbitrator Slotnick in Hamilton Health Sciences – and – O.N.A. (2010),192 L.A.C (4th) 332. In that case, Arbitrator Slotnick held that the 3 Union was barred from proceeding with new grievances filed after older grievances with the same subject matter had been withdrawn. 14. The College submits that is exactly what is happening here, and the Union should not be permitted to proceed with the 2011 grievance. 15. While there is no doubt that the Union withdrew the 2012 grievance, the Union notes there is absolutely no evidence that it withdrew the 2011 grievance at any time. 16. The Union acknowledges that cost centre 541F was used as part of its case for the 2012 grievance, as a claim for full-time positions in Nursing Studies. However, it notes that the claim in the 2011 grievance is an independent claim, based solely on cost centre 541F, and seeks full-time positions in that specific cost centre. 17. The Union submits these are sophisticated parties, who regularly deal with Article 2 issues, and understand exactly what they are doing when they withdraw a grievance. The Union submits that the fact that the 2012 grievance wasn’t withdrawn with the term “without prejudice” is not significant, because it is understood in arbitral jurisprudence that whether there is any prejudice will be determined by the subsequent arbitrator. 18. The Union notes that at no time was there any indication the Union was withdrawing the 2011 grievance when it was withdrawing the 2012 grievance. Accordingly, the Union submits, there is no basis upon which it could be concluded the Union was also withdrawing the 2011 grievance. 19. The Union relies on the decision of Arbitrator Burkett in Saint-Gobain Abrasives – and – C.E.P. Local 12, [2003] O.L.A.A. No. 495. Arbitrator Burkett held that it would not be appropriate to allow a union to proceed with a grievance when it had earlier confirmed the employer’s understanding of the issue through the prior withdrawal of an identical grievance. Arbitrator Burkett noted that a grievance may be withdrawn for any number of 4 reasons other than acceptance of the other side’s interpretation. The Union submits that in the present case, there is no basis to conclude the Union was withdrawing the 2011 grievance or agreeing to the College’s position in respect of the 2011 grievance. ANALYSIS 20. Having considered the submissions of the parties, I have determined the College’s motion should be dismissed. 21. While I am in full agreement with the general principle that a party should not be permitted to proceed with a grievance after it has acceded to the other party’s interpretation of the issue in dispute, as evidenced by its conduct in respect of an earlier grievance, the facts of this case do not fit within that box. 22. This is not a case, like that before Arbitrator Slotnick, of the Union withdrawing a grievance on a particular issue and then subsequently seeking to file a new grievance on the same issue. 23. These are sophisticated parties. Both the College and the Union know how to file grievances and how to withdraw grievances. At the time the Union filed the 2012 grievance, the 2011 grievance had already been filed. There is no dispute that at no time did the Union withdraw the 2011 grievance. What the College is saying is that by withdrawing a subsequently filed grievance, the Union was effectively withdrawing the 2011 grievance because it touched on a similar issue. 24. It is widely accepted that the ability to enforce rights in labour relations can be impacted by conduct between the parties that touches upon those rights. Consistent with this view, a withdrawal of a grievance may constitute a representation of an acceptance of the opposing party’s position and bar the first party’s ability to subsequently pursue the same issue. 5 25. However, a grievance may be withdrawn for any number of reasons. Whether a withdrawal of a specific grievance does in fact constitute such a representation is dependant on the specific circumstances surrounding the withdrawal. 26. Arbitrator Burkett noted a number of factors which, together, could form the basis of a reasonable inference of such acceptance where there is a withdrawal of a grievance. These factors were a withdrawal after the latter stages of the grievance procedure, a written withdrawal by an authorized union official, and no “without prejudice” condition placed on the withdrawal. All of these factors are present in this case. 27. However, Arbitrator Burkett specifically noted this inference could be rebutted with compelling evidence to the contrary. While these specific factors may point to an inference that the reason for the withdrawal was because of an acknowledgement of the validity of the opposing party’s position, there may be facts present which render such an inference simply inappropriate. 28. In the present case, there is such compelling evidence. At the time the Union withdrew the 2012 grievance, the 2011 grievance had already been filed and was not withdrawn. This fact must be given some significance. Given the 2011 grievance remained alive, it is difficult to see how the College could have reasonably concluded that the Union’s withdrawal of another grievance meant it was acceding to the College’s view of the issue underlying the 2011 grievance. If in fact that were the case, there is no reason why the Union wouldn’t have withdrawn the 2011 grievance at the same time as it withdrew the 2012 grievance. 29. Since the filing of the 2011 grievance, the College has known the Union took issue with the staffing in the Personal Support Worker program. Whether or not there may be some overlap with a subsequently filed grievance, at no time has the Union taken any 6 action upon which the College could properly conclude the Union had decided it was not going to pursue the specific issue in the 2011 grievance. 30. Accordingly, there is no valid basis to bar the Union from proceeding with the 2011 grievance. DISPOSITION 31. The College’s motion on arbitrability is dismissed. The Union may proceed with the grievance. Dated this 15th day of December, 2015. ___________________ JASBIR PARMAR