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Gurofsky 02-09-21
IN THE MATTER OF AN ARBITRATION BETWEEN The Ontario Public Sen, ice Employees Union ("the union" or "OPSEU") AND Fanshawe College of Applied Arts and Technology ("the college" or "the employer") Concerning the grievances of Jeremy GurofskT ("the grievor") BEFORE: R.O. MacDowell (chair) Ron Hubert (college nominee) P. Munt Madill (union nominee) APPEARANCES: For the union: Peter Engelmann (counsel) For the college: Robt. Atkinson (counsel) For the grievor: Raj Anand (counsel) A hearing in this matter was held in Ottawa, Ontario, on March 25, 2002, and was followed by written submissions from counsel, which were completed on July l 9, 2002. Interim Award on a "Prelimina~w Issue" I - Introduction This arbitration proceeding arises from a number of grievances filed by Jeremy Gurofsky, a community college professor who has been employed by Fanshawe College for many years. The details of Ix~. Gurofsky's grievances need not be set out here. It suffices to say that in each case, the grievor contends that the college has contravened the terms of the collective agreement, and/or has breached his common lax,,,, statutory, or other legal rights. A hearing in this matter began, in Ottawa, Ontario, on March 25, 2002. The purpose of the hearing was to receive the parties' representations on a discrete issue which they wanted this panel to determine, before proceeding further with the rest of the case. The representations made on March 25 were supplemented by an exchange of written submissions, that was completed in mid-July 2002. In drafting these reasons, we have taken into account the parties' submissions in their totality - both oral and written. The parties were agreed that this board of arbitration has been properly appointed under the terms of the collective agreement, and that it has jurisdiction to hear and determine the "preliminary issue" now in dispute between them. However, for the purpose of completeness, (and looking ahead), we should note that the college reserves its right to challenge whether particular grievances are "arbitrable", or are properly consolidated before a single arbitration panel; and the college also reserves its right to II " 11 challenge the remedies that the grievor seeks, in each case, should he be successful in one or more of his grievances. And, of course, in each instance the college denies that there has been any breach of the grievor's legal rights, whatever their foundation. These issues need not be elaborated at this point· This decision focuses on a much narrower question - albeit one with potential ramifications beyond the immediate case, because the relevant clause is part of a province-wide collective agreement, covering a number of colleges and thousands of employees. argument set out being by grievor as an The below is advanced the individual, in the context of his own grievances. However, there are hundreds of other employees who are, or could be, similarly situated· Accordingly, the decision in the grievor's case could affect the way that the arbitration process is generally administered. 11 - The Preliminary' Issue This decision deals with a simple (and the parties say "preliminary") question: whether the grievor is entitled to present his own case(s), in his own way, through his own counsel, where, as here, the union has initiated the arbitration proceeding and intends to carry those grievances forward for adjudication on the grievor's behalf. The grievor says that he can, relying upon Article 32.05(H) of the collective agreement. That provision reads as follows: It is understood that nothing contained in this Article shall prevent an employee from presenting personally a grievance up to and including a hearing by the arbitration board without reference to other person. However, a Union Steward ma3, be present as an observer, contrnencing at Step One, if the steward so requests. The grievor says that .Article 32.05(H) gives him an independent right to "present" his own grievances at arbitration: whether or not the union chooses to present them; and whether or not the union participates in the proceeding; and whether or not the union has a right to be there, as an active participant, along with the grievor. To be clear: the grievor does not seek to exclude the union from the arbitration The grievor takes no position on the union's right to participate. The grievor proceeding. merely asserts thatl now that an arbitration board has been constituted, he has the "independent right" to present his own case(s), in his own wa),, with his own lawyer, if he wants to do so. According to the grievor, Article 32.05(H) gives him the right, at his option, to turn the normal bilateral arbitration process, into what counsel describes as a "three-cornered proceeding", in which an individual employee can participate independently of the other "institutional parties". In the grievor's submission, the collective agreement gives an employee like himself "individual carriage rights", regardless of the position, or the participation, of the union or the employer.. He has an independent right to be present, to be a "party" to the proceeding, to have his own counsel, to call evidence, to cross-examine witnesses, to mak~ argument, and so on; and that right does not depend upon the presence or the acquiescence of the union. In the grievor's submission, he is not obliged to follow the lead of the unionl nor need he depend upon the union to articulate his interests. I 13 According to the grievor, the right to present his own grievances does not depend upon the actual content of any particular grievance - which is to say, whether the grievance rests solely on interpretation agreement, or, alternatively, the of the collective involves some common law, statutory, or other, legal issue (for example, reference to the O~Ttario Human Rights Code). In counsel's submission, the grievor's right to present his own case is not dependent upon the nature or the foundation of the claim. Nor does it depend upon the particular facts that an employee might have to assert to establish such claim_ The employee has a right to present his grievances - all, or any one of them - on his own, with or without the union, because .~-ticle 32.05(H) gives him that right. Co'unsel for the grievor concedes that this is a little unusual. But in his submission, that is what flows from wording of Article 32.05(H)~ which everyone concedes is a rather unusual provision. Moreover, in counsel's submission, the notion of "individual carriage rights" is one that OPSEU itself has endorsed: in its internal organization and constitutional arrangements; in its "policy" with respect to pursuing grievances; and in its communications with its members. Against that background, counsel submits that Article 32.05(H) is not so unusual after all. In the alternative, counsel for the grievor maintains that the grievor has a sufficient legal interest in the outcome of the case so as to entitle him to independent participation and "third-party/intervener status", regardless of the union's position or involvement in the proceeding, and regardless of Article 32.05(t-I). i 5 On this branch of his argument, the grievor does not rely upon Article 32.05(H). Rather, counsel submits that the grievor's right to participate independently arises because he has a "legal interest in the outcome" - not because of the particular language of the collective agreement, or whether the union is taking some position that is adverse to his own. In the grievor's submission, there is a free standing "common law right" to participate in the arbitration proceeding, because his rights are in issue, and he will be affected by the result. It is an inherently individual right, founded on "natural justice considerations". So once again, he need not rely solely upon the union to promote or protect his interests. The union and the employer do not accept the grievor's proposed interpretation of their collective agreement. Nor do they accept the grievor's assertion of independent "party status", built upon common law/natural justice foundations. On the contrar3,, the bargaining parties reject both of these propositions. The parties to the collective agreement assert a shared understanding of the meanirig and impact of Article 32.05(H), which is different from that of the grievor. In I!i their submission: Article 32.05(11) is only available where the union consents to an employee proceeding on his own. The union and employer also submit that: where, as' here, the parties to a collective agreement agree on its interpretation, (in this case the meaning of Article 32.05(1-1)), it is not open to the gfievor, or an arbitrator, to assert a contrary meaning. 15 The union and the employer further assert that common taw/natural justice considerations have no place in this collective bargaining and statutory context - indeed, that separate "party status" for a grievor is inconsistent with the legal framework for collective bargaining. The institutional parties contend that in a collective bargaining setting, an employee has no indMdual "common law" right to carry t,Js complaints to arbitration. Nor is there an3, common law right for the employee/grievor to participate in the arbitration proceeding as an independent "third party". To hold otherwise, would subvert the scheme. statutory The union's position is that where, as here, the union is carrying forward the grievor's claims, on the grievor's behalf, the union's status as exclusive bargaining agent, precludes the grievor from proceeding on his own.. For the same reason, the ~ievor has no independent right to participate in the bilateral arbitration proceedings as a separate party, with his own counsel~ As the union sees it: if the union itself is advancing an employee's claim in the arbitration forum, the indMdual employee is precluded from doing so. The exercise of the union's prerogative as exclusive bargaining agent, precludes the separate assertion of rights by an indMdual employee. In the union's submission, this is what flows from both the Colleges Collective Bargaining .gct, and the terms of the collective agreement. Indeed, that is what the union's "exclusive bargaining agency" means, in practice. ,And that exclusivity not only precludes individual bargaining with the employer, or representation by another trade union, but also forecloses the priv. ate assertion of work-place rights by an indMdual employee. The union points out that there is nothing in the material before us to establish (nor does the grievor assert) that the griev0r is adverse in interest to his bargaining agent, and thus has to have separate representation for that reason. This not a case like Hooge~door~ v. Gree~i~Tg gdetal Products a~Td Scree~i~g Equipme~-~t Co. a~d ~h~ited Steeb~,orkers of America, Local 6266 [i966] S.C.R. 30, or Bradley v. Ottcm,a Professio~ml Firefighters' Association [1967] 20.R. 311 (OCA), where the union was asserting a position that would have had a direct and detrimental interest on another employee, so as to entitle such employee to "intervener status" at the hearing. Mr. Gurofsk3,'s grievances, while numerous, are no different from any other complaints that an employee might file from time to time - complaints which, in the ordinary course, may be processed through to arbitration, with the union presenting the case on the employee's behalf. That is what is happening here. The union is carrying forward I~. Gurofsky's grievances, just as it typically does for other employees; and that being so, there is no option for the grievor to appear on his own. In the union's submission, Article 32.05 (If)provides a vehicle which may_permit h~dividual employees to proceed on their own in some limited circumstances. But, access to that mechanism depends upon the union's consent - and, in effect, its "delegation" to the grievor/employee of the right to proceed independently. The union submits that an 8 ! individual employee only gets to proceed by himself, if the union withdraws from the process and permits him to do so. Article 32.05(H) has no application where the union has assumed carriage of the case. In the union's submission, the starting point for any analysis of Article 32.05(H) is the union's exclusive bargaining agency, which allows the union to determine: · whether or not there is a dispute or "difference" between the parties concerning the interpretation of the collectix, e agreement, [which the union says there is not the case, on this preliminary question, because the negotiating parties ap'ee on what .4a-ticle 32.05 (H) means]; · whether or not to settle or proceed to arbitration with an employee claim; · and whether or not to delegate its carriage fights to the individual employee pursuant to Article 32.05 ;(H). And in the present case, the union has not withdrawn from the case, nor delegated to the grievor the fight to proceed under Article 32.05(H). The union also submits that if the union and the employer a~'ee that there is no dispute between them about what the agreement means, then that is the end of the matter: there is no legal dispute or "difference" that an arbitrator can determine. The issue simply "arbitrable". It is for to claim, arbitrator to conclude, that isn't I1Ot open employee or the collective agreement means something else. In the union's submission, that is the case with Article 32.05(H): the bargaining parties agree on what Article 32.05(H) means so there is nothing to adjudicate. On this point, there is no arbitrable "difference" or "dispute" between the bargaining parties. 18 On the other hand, if there are disputes about the employee's rights in the work place (as there are in respect of Mr. Gurofsky's various grievances) then the union may choose to carry them for~vard to arbitration (as it has done with Mr. Gurofsky's various complaints). But, as the union sees it: if the union does choose to carry these .claims forward, then the indMdual employee has no independent right to do so, because Article 32.05(H) can have no application. The two processes are mutually exclusive. The union concedes that the exercise of its exclusive bargaining authority may be subject to the union's "duty of fair representation" (see section 76 of the Colleges Collective Bargaining Act). Its power is not unfettered. It may be subject to independent review by the Ontario Labour Relations Board. There is a remedy for misconduct. However, the existence of it exclusive bargaining authority is supported by both the terms of the collective agreement and the scheme of the legislation on which it is based; and in the union's submission, this board of arbitration should not adopt an interpretation of Article 32.05 (H) which would have the effect of undercutting the union's authority as bargaining agent - particularly when the union and the employer are both saying that their agreement means something else. The union ac'knowledges that Article 32.05(H) marks a departure from the normal way in which grievances are resolved (either by settlement between the negotiating parties themselves or ultimately by third party adjudication). However, the union says that Article 32.05(H) is a very. limited alternative, that is only available where the union chooses not to carry the case itself, and where it chooses, further, t.o the permit the [ 19 indMdual employee to proceed on his own. In the absence of such double choice, the union has the right to carpi the grievance forward, and the employee does not. That right never shifts to the employee without the union's consent - even if., in practice, the union routinely chooses to exercise its exclusive bargaining authority in accordance with the employees' wishes. The union submits that this reading of Article 32.05(H) is the one that is most consistent with the words of the clause, and with the statutory and contractual scheme - in particular, with the concept of "exclusive bargaining agency". But it is also the interpretation upon which the union and the. employer both agree. And, a from collective bargaining perspective, it avoids the dramatic consequences that might follow if every employee covered by this provincial collective agreement had an independent right to go forward with his own case, or could assert independent third-party status in arbitration proceedings - even where, as here, the union was t 'aking the matter forward. For as a practical matter, the union would then cease to be the employee's "exchtsive bargaining agent", whenever the employee chose to represent himself. The grievor's proposed interpretation would deprive the union of all control over the volume and content and costs of litigation between the parties. It would turn the bilateral settlement mechanism into a three cornered affair whenever an employee dispute wanted to do so - incidentally undem-Ening the union's ability to represent, and balance, the rights of the grievor and those of the collectivity. In the union's submission, that is simply not what the parties intended by Article 32.05(H), nor is that result commanded by common law or natural justice considerations. 11 In the alternative, the union submits that ,Article 32.05 should only be given the reading proposed by the grievor, where the dispute is exclusively concerned with the personal interests of the employee, and involves neither the interpretation of the collective agreement generally, nor an outcome which could have an impact on other employees. Otherwise, once again, the union's role as exclusive bargaining agent for all employees would be compromised. ~amd' in the union's submission, Mr. Gurofsky's grievances engage more than his personal interests The college is in substantial agreement with the union's inter, pretation of Article o_.0>(H). The college's position is succinctly summarized in the fOllowing excerpt from its submission of June 19, 2002: We have now had an opportunity to review the Union's written submissions and wish to advise the board of arbitration that the College is a full agreement with the Union's submissions. The College agrees with the Union that its status as exclusive bargaining agent precludes the grievor fi-om carrying foreword his grievance without the union's consent although the union has the right to delegate its authority to the grievor to carry forward his ov, m =m-ievances in his own way ~eithout counsel {**}. As the union has not delegated its authority to the grievor in this case, the grievor has no right to present his grievances on his own. To conclude that Article 32.05H of the collective agreement confers a positive absolute fight upon an individual grievor to pursue his grievances to arbitration without the Union's consent would completely erode the principle of the Union as exclusive bargaining agent. The College further agrees with the Union that article 32.05H is confirmatory of the Union's fight to delegate authority to an individual to grievances forward on his own. The of carry purpose Article 32.05H is to protect an individual grievor to whom such authority has been delegated by the Union from what would 12 ! 21 othem, ise be a successful preliminary objection by the employer that an individual is precluded from arbitrating his grievance personally. The' College and the Union as parties to the agreement are agreed as to the interpretation of the collective agreement; accordingly, the college respectfully submits that there is no dispute for the board of arbitration to resolve and that the Board therefore has no jurisdiction to address this issue further. Alternatively, should the board of arbitration decide to take jurisdiction over the issue, the college requests that it interpret the collective agreement in the manner advanced by both the Union and the College in this case. [emphasis and asterisk added] As will be seen, the negotiating parties are in agreement as to what Article °' 32.05(H) means. However, the emphasized portion of the colle, e s submission {**}, marks a point upon which the union and the college may not be totally ad idem; and for the purpose of completeness, we record that difference below. i . The college argues that the case either proceeds in the normal way, with the union representing the grievor and presenting the grievances (subject to its statutory duty of fair i representation) OR the grievor proceeds completely on his own ("personally"), without i the presence of the union and without counsel. In the College's submission, EJTH£R the union has complete carriage of his case, OR the grievor is completely on his own. There i is no middle ground. i" As the college sees it, there is no "trilateral scenario" in which the union and the i grievor/employee are independent protagonists, each presenting the various grievances in their own way, from their own perspective - with the employer, on the other side, responding to both of them. In the employer's submission, the proceeding is always 22 bilateral: EITH£R unioffemployer~ ©R, under Article 32.05(H), employee/employer. And in the latter situation, neither counsel for the grievor, nor the union itself are present - except in the union's case, as an observer. Thus, in the "normal model", the union carries the case on behalf of the employee/grievor. In the "self representation model" under 32.05(H), the grievor carries the case entirely on his own, and the union has no role at all, except to watch. The college submits that this must be so, because, otherwise, the last sentence of Article 32.05(H) would be meaningless. Why give the union a right to be an "observer" if it were intended that the union would be, or could be, a part): as of right ? However, in the instant case, the union has chosen to represent the grievor. There has been no delegation or withdrawal on the union's part. So in the collegeis submission, article 32.05(H) is not engaged, and Mr. Gurofsky has no independent right to participate as a party in the arbitration proceeding - with or without counsel. The union makes no submissions with m Mr. Gurofsky's right to counsel, respect either in the scenario where he carries the grievance forward on his own, (i.e. where carriage rights have been "delegated" in accordance with the bargaining parties' reading of Article 32.05(I--I)), or if this board of arbitration were to conclude that Article 32.05(I-1) creates some kind of hybrid arbitration model in which the grievor has some independent status to participate, in addition to the union. However, we think that it is fair to say that 14 23 the union does not envisage any scenario in which the union - a party to the collective agreement - could be umvillingly excluded from the arbitration proceeding, if it wanted Io be present. In elaborating their respective positions, the parties drew our attention to various provisions of the Colleges Collective Bargaining Act and the collective agreement. The parties also drew our attention to various decisions of courts and arbitrators, which, it was said, would assist us in deciding what Article ~2.05(H) means. We will look at Article 32.05(H) in a little more detail later. First, we think that it may be useful to sketch in a bit more of the legal and institutional context. · We do so for several reasons. First of all, it is a common ground that the clause under review has been part of successive collective agreements between the union and the college(s) since the early 1970s, yet no arbitrator has ever had to interpret Article .~2.05(H). Nor is there any evidence that any employee has ever sought to use that clause in the manner proposed by the grievor. The position raised by the grievor in this case is both novel and unprecedented. In the circumstances, we do not -~hink that we should approach our task like a "Martian with the oblivious to the larger legal picture, or the concrete dictionary" consequences that would flow from the alternative interpretations urged upon us. I 24 This is not to say that the consequences should be permitted to confute the clear meaning of-the agreement. Nor can context govern or contradict a result that is otherwise commanded by the plain meaning of the language that the parties have used. However, it seems to us that where the language of the agreement is open to alternative constructions, it is relevant whether a proposed interpretation sits easily, or uneasily, with the general legislative and contractual scheme; and also whether such interpretation leads to unusual or impractical consequences..And that is particularly so where, as here, the union and the employer, as parties to the agreement, reject the interpretation proposed by a non-party, and resist the consequences which that such interpretation would impose upon them. Secondly, it is evident that, from a collective ba~7ainingperspective, this case is very unusual in a number of ways. There cannot be many instances in the collective bargaining world, where an individual employee has been permitted to litigate an alleged issue of collective agreement interpretation, when the negotiating parties say there is none; or where an individual employee asserts the right to drive the arbitration/litigation process, regardless of the participation, or even the wishes, of the parties to that collective agreement. Article 32.05(H) really is a departure from the norm; so we think that it may be useful to briefly examine that "the norm", in order to illuminate just how much of a departure it actually is: a rather modest one, as proposed by the union and the employer; or a major one as proposed by the grievor. For we do not think there is any doubt that if the grievor is right in his proposed interpretation of Article 32.05(H), there could be a significant impact on the bargaining parties, and on the administration of the provincial collective agreement in which Article 32.05(I-1) appears. 16 Ii 25 1TI - An aside on the statutory' framework for collective barffainino~ at communilv colleees. At common-law, there was no legal framework for "collective bargaining". Nor was the outcome of collective bargaining - the collective agreement - a "contract" enforceable at common law. Collective bargaining is a creature of statute; and was fairly late in coming to civil servants and employees of community colleges. We have put it that way, lumping community college teachers in. with other crown employees, because community colleges were once a component of the provincial public service; and like other components of the public service, acquired a formal framework for collective bargaining only in the early 1970s.. Indeed, not only did community college employees initially have the same status as other crown employees/cMl servants, but in the period immediately prior to acquiring their own legislation, (the Colleges Collective 2~argaining Act - "the CCBA'), community colleges were temporarily covered by the Crown En~ployees Collective Bargaining Act, [the general legislation pertaining to the Ontario public service - see: An Act to Amend the gdinisrry of Colleges and Universities Act, 1971, S.O. 1972 Ch. ll4, section 6(2)]. Be that as it may, the CCBA now mandates collective bargaining between community colleges and their employees, as a separate grouping within the pubic sector. The bargaining takes place bem, een an "employee organization" (now OPSEU) on the one hand, and an employer organization, known as the Ontario Council of Regents for Colleges of Applied Arts and Technology, (."the Council"), on the other. The Outcome of collective bargaining is a "collective agreement", that is typically ratified· by the employees in a secret ballot vote (see section 88 of the CCBA). The term "collective a=reement is defined as follows: "agreement" means a written collective agreement between the Council on behalf of the employers and an employee organization covering terms and conditions of employment negotiable under this Act. The employees are bound by the collective agreement, but they are not "parties" to it. The term "party" in the CCBA means the institutional parties. The collective agreement is a creature of statute, and must conform to the provisions of the CCBA. Among those provisions are Sections 51, 52, and 48(2) of the statute, which read as follows: 51. An agreement is binding upon the Council, the employers and 'the employee organization that is a party to it and the upon employees in the bargaining unit covered by the agreement. 52. Every agreement shall be deemed to provide that the employee organization that is a party thereto is recognized as the exclusive bargaining agent for the bargaining unit to which the agreement applies. 48(2) Where a conflict appears between any provision of an agreement and any provision of any legislation, the provision of the legislation prevails. Once again, the statute distinguishes between the institutional parties and the employees, and makes it clear that the negotiated terms cannot undercut rights that are founded statute. on 27 Like most labour legislation in Ontario (see for example section 48 of the Labour Relations Act) the CCJ~A provides for the compulsory arbitration of disputes about how the negotiated agreement should be interpreted and applied. Section 46(1) of the CCBA reads as follows: I Every collective agreement shall provide for the final and binding settlement by arbitration of all differences between an employer and the e,~loyee organization arising from the interpretation, I application, administration or alleged contravention of the agreement including any question as to whether a matter is arbitrable. [emphasis added] I The for the resolution of disputes between the parties - statute envisages a process which is to say, the union and the employer. There is no suggestion here that the process can be invoked if there is no "difference'. between the parties; nor does the statute contemplate that individual employees will have carriage of an allegation of a icontravention of the agreement. It is the union and the employer which delrue the dispute, if any, which decide whether it should be advanced or settled, and which control access I to arbitration. Thus, the "default arbitration clause" found in section 46(2).contemplates ithat the arbitrator will normally be chosen by the union and the employer; the arbitration process must be jointly funded by the union and the employer (section 46(7)); and the arbitral outcome is made binding by section 46(5) of the CCBA, which reads this way: The decision of an arbitrator or arbitration board is final and binding upon the employer, employee organization and upon the employees t the who affected the decision, and such covered by a~eement are by ~:.~ employer, employee organization employees shall do or refrain from ~ ' doing, anything required of them in the decision. ! == 1[ 28 In each of these provisions, the focus is on the union as exclusive bargaining agent for the employees, on the one hand, and the employer on the other. The arbitration · process is managed, and driven, and funded, by the bargaining parties, who decide whether or not there is a dispute between them, and, if there is, whether to resort to arbitration to resolve that dispute. The statute cOntemplates a bilateral process between the institutional parties. There is no obvious role for individual bargaining with the employer about his workplace individual interaction with the employer to resolve those rights at the arbitration rights, or stage. Indeed, the assertion of such "individual" employee rights seems at odds with the statutory scheme of collective bargaining. Now, of course, the union's status as exclusive bargaining agent for the employees in the bargaining unit, carries with it a concomitant obligation to represent those employees in a manner that is neither "arbitrary, discriminatory, or in bad faith" (see section 76 of the CCBA). Moreover, an employee who believes that a union has breached that obligation, may complain to the Ontario Labour Relations Board, which has the authority to enquire into the allegation, and if necessary, fashion an appropriate remedy. However the Ontario Board has never required a union to carry every grievance through to arbitration, simply because the employee makes that request. In Catherine Syrne [1983] the Ontario Board discussed that proposition as follows: OLKB Rep. May 775, [the statutory duty of fair representation] requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance 20 29 through to arbitration simply because an employee wishes that lhis be done. A trade union is entitled to Consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration. The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only to settle in it should do so. ~amd, as entitled grievances, many cases has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training judgment a and lO f laws, er. Most collective agreements a grievance procedure contain to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration· discussion in which (as in the present case) the parties Seek to amicably resolve their differences. As in the ordinary civil litigation pro~ess, it may be in the interests of both parties to seek an "out-of- court" settlement which is more modest than either of them might have obtained had the3, been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of' litigation, and where it appears that the claim is without legal foundation or cannot be proved, it makes little sense to proceed further. These considerations are equally applicable to the settlement of disputes arising Out of collective agreements. But there is an important difference. Unlike most parties in civil matters, the trade union and employer are bound together in a relationship which will subsist so long as the employees continue to support the Union and the employer remains in existence. That relationship, despite its adversarial aspects and legal veneer, is neither wholly adversarial nor strictly legal. It is essentially an economic partnership in which both parties must be concerned about the ongoing relationship and the equitable resolution of' disputes which occasionally arise. Like a successful marriage, a productive bargaining relationship depends upon the development ofa spirit of cooperation and compromise. Regardless of the arguable importance of any particular grievance, it will inevitably be only one of many which the parties will be required to resolved during the currency of their relationship; and, if either party obstinately adheres to an unreasonable position, or continually presses trivial claims, the entire settlement process could be undermined, and their long-term relationship prejudiced. As a practical matter, a rigid insistence on one's "strict legal rights", or ! 30 any insistence on proceeding to arbitration with .doubtful claims is likely to provoke a response in kind, and yield only short term gains. As a matter of good judgment, and in the interests of sound industrial relations, a trade union should make reasonable efforts to settle grievances early in the process. I do not think that there is any justification for processing obviously groundless claims simply because an individual employee demands "his day in court". Such position not only represents the waste of the employees' money in counsel and other fees associated with the arbitration process, but it could also prejudice the ongoing and informal resolution of disputes, short of arbitration, where there might well be some contractual basis for the union's claim. Catherine Syme involved a claim by an indMdual employee that the union was obliged by its statutory duty to follow her instructions, and carry her case to arbitration. The OLRB found that the law did not require the union to do that - incidentally · identifying the good bargaining reasons why collective that "should" not be SO. Of course, Catherine Syme was not a case in which the employee could point to particular language in the collective agreement to support her claim. H.?xvever, the reasoning of the Board illustrates why such clause would be quite unusual, and thus should be read quite carefully. To put the matter another way: where the union is not obliged by the statute to carry every case to arbitration simply because the employee demands it, and where there are sound labour relations reasons for not adopting that stance, we do not think we should lightly conclude that the union has ceded or diluted its exclusive bargaining authority in this way. 22 31 The decision in Catherine Syme, represents the opinion of the Ontario Labour Relations Board, construing statutory language identical to section 76 of the CCBA. However, other labour relations boards have taken a substantially similar approach, giving the union a wide latitude to balance interests, even in the case of disciplinal3, issues, where there is often no broader interpretation question might that aff~ct the interests of other employees. In fact, even where the matter involves an employee discharge, there is still not absolute obligation to take a case to arbitration. (For a discussion of the competing arguments see the decision of the Canada Labour Relations Board in BrendaHaley (1981) 81 C.L.L.C. parag. 16096). Labour tribunals have routinely recognized that the exclusive bargaining agent has the right to balance the concerns of the individual employee against the organizational interests of the group, and has a wide latitude to determine when an individual's interests should be pursued - or again to put the matter another way: when an individual employee can commandeer the resources of his co-workers to pursue his individual concerns. The union is no more obliged to finance "litigation on demand" than is a publicly funded provincial legal aid plan..And in a collective bargaining regime, it is the union that makes judgements. (For a these discussion of the duty of fak representation, see Canadian Merchant Service Guild v. Gag'non et. al. (1984), 9 D.L.R. (4th) 641 (SCC); and see generally: G. W Adams, Canadian Labour Lcnv 2nd edition, at chapter 13). The status of the union as custodian of an employee's legal interests, has also been recognizedbythecourts. Indeed, morethanqOyearsago, inSyndicatCatholiquedes :2_3 32 ~,m,t~lo.)~s de .A4agasi~s de Q~.tebec, J~c. v. La Comt~a~ie Paq~w! Llee. (1959)' 59 CLLC parag. 15409, the Supreme Court of Canada recognized the special role and status of the union in the collective bargaining world. Judson J. put it this way: If the relation between employee and Union were that of mandatory and mandatory, the result would be that a collectiYe agreement would be the equivalent of a bundle of individual contracts between the employer and employee, negotiated by the Union as agent for the employees. This seems to me to be a complete misapprehension of the nature of the juridical relation involved in the collective agreement. The Union contracts not as agent or mandatory, but as an independent contracting party and the contract it makes with the employer binds the employer to regulate his master and servant relations according to agreed terms. This issue surfaced more recently, in Re Noel v. Societe d' e~ergie de la Baie James; United Steelworkers of America Local 6833 (FTO_,) et. al. (2001), 202 D.L.R. (4th) 1 (S.C.C.), where the Court had to decide whether an individual employee had the right to seek judicial review of an arbitration award sustaining his discharge, '~,hen the union was not pursuing the matter. The employee argued that he was adversely affected by the arbitration result (as he undoubtedly was), so that he should have a individual right to seek judicial review, even where the union was not doing so. The employee claimed that he had a right, like any other citizen, to seek the assistance of the Courts, when his legal rights were in issue. But the Supreme Court of Canada disagreed; and, en route to dismissing the employee claim, made these observation legal about the scheme and the union's role in it: One of a fundamental principles we find in Quebec labour law, and one which it has in common with federal law and the law of other provinces, is the monopoly that the union is granted over representation .... For the purposes of administering the collective agreement, the certified association exercises all the recourses of the employees whom it represents without being required to prove that the interested party has assigned his or her claim .... The collective agreement is implemented, first and foremost, between the union and the employer. Certification, followed by the collective agreement, takes away the employer's rights to negotiate directly ~vith its employees. Because of its exclusive representation function, the presence of the union erects a screen between the employer and the employees. The employer loses the option of negotiating different conditions of employment with individual employees .... In administering collective agreements, the same rule will apply to the processing and disPosition of grievances. Administering the collective agreement is one of the union's central roles, and in this it acts as the employer's mandatory interlocutor. If the representative function is performed properly in this respect, the employer is entitled to compliance with the solutions agreed on. Collective' agreements may of course recognize the right of employees to file grievances and take them to certain levels, even to arbitration, or to participate directly in grievances as parties. That is not the case here. With that exception, the principle rule is that the grievance and arbitration process is controlled by the union, to which that control belongs .... The union's power to control process includes the power to settle cases or bring cases to a conclusion in the course of the arbitration process, or to work out a solution with the employer, subject to compliance with the parameters of the legal" duty of [fair] representation. In the result, the court concluded that the individual employee had no right to go to court, on his own, to seek judicial review of the arbitration award even though that award affected (indeed determined) his legal rights. The fact that the union had custody of his rights at an earlier stage, in the arbitration forum, was said to prevent the individual from later pursuing judicial review in the courts. (The case also includes a discussion of the duty of fair representation - affirming once again, that, under the statute, the union is not obliged to take every case forward, simply because an employee demands "his day in court"). 25 il 34 We do not ttfink that it is necessary to burden these reasons with further references to the statute or the general law. The point is: the scheme of the collective bar--.ainina legislation and the concept of exclusive bargaining agency, both envisage that the union has "custody" over the employees' rights, and the indMdual employee does not. Primafacie, the grievance and arbitration process are controlled by the union; and that is so for both legal and practical reasons_ In the collective bargaining regime, the union's obligation to promote the persona/interests of particular employees, is tempered by its own institutional and strategic interests (including fiscal considerations), as well as its obligation to look after the welfare of the unit as a whole. It is the un/on that drives the collective bargaining process - including the process of dispute resolution - not the individual employee. Against that background (the "principle rule" as LeBel J. put it in Noel) we think that it would require very clear contract language to turn that "rule" on its head, and create a situation in which the individual employee was in the driver's seat, or could tag along as a independent party, even where the union was carrying the case forward. In our view, a conclusion so completely at odds with the prevailing law and practice, requires clear, compelling and unambiguous language - especially when the parties to the collective agreement are both saying that the clause means something else. i 35 I With this background, then, we return to the words of Article 32.05(H), and to the i "common law/natural justice" argument that the grievor submits in the alternative. IV - Discussion ,. We might begin by observing that the provincial collective agreement under review, follows the general pattern prescribed by the CCBA . In accordance with section 52 of the CCBA, Article 1 of the collective agreement establishes the union as the exclume bargaining agency for all academic employees of the Colleges... "; and thereafter, the .agreement systematically distinguishes between the parties to the agreement, and the employees bound by it. The agreement distributes rights and obligations between the bargaining parties and those they represent, in a variety of ways that need not be explored here. However, in view of the grievor's assertion that he can press his grievances to arbitration regardless of the union's position in the matter, it is interesting to note that Article 7.03 contemplates that a union Local and the college can settle at least some grievanceS-related controversies between themselves: Where it is considered mutually desirable that the Union Local and the College set out in writing the resolution of a matter as to the local application of this Agreement or clarification of procedures or conditions causing misunderstanding or grievances as referred to in 7.02(i) or (ii), such resolution may be signed by parties the and apply for the specific terms agreed-upon, but, in any event, shall not continue beyond the term of this Agreement as currently in effect. 36 .Article 7.02 deals with one way of resoMng disputes. But the agreement also contains a grievance - arbitration procedure that, once again, follows the statutoD~ model. The initiation of the grievance and the first two steps of the "grievance procedure" envisage an active role for the individual employee in presenting his grievance. However, if the matter is not resolved in the grievance procedure, and has to be referred to arbitration, the emphasis shifts to the institutional 'parties who must establish and pay for the arbitration process. (See Article 32.04 fO- While the language of the agreement is not always consistent, it is a "notice in writing given to the other party" which triggers the adjudication stage of the process. Similarly, the use of the phrase "either [2arty" in article 32.05C suggests that there are only two parties i~,volved in such adjudication. This form of words suggests that it is the t~i,o institutionalparties who have carriage of the proceeding, and who are responsible for the administration of the arbitration mechanism (which, as noted, they have to pay for). (As to the legal distinction between the internal "grievance procedure" and the external "arbitration process" see: Service £ml2loyees l~te~?~ational U~ion Local 204 v. Leisure ~[Zorld Nursing Homes Ltd. [1997] O.J. No. 1469, 99 O.A.C. 196 (Div. Ct.) aff'd by the Court of Appeal at [1997] O.J. No. 4815). Apart from article 32.05(1-1), [to which we will return in a moment], we do not think that the scheme of the collective agreement provides much support for the grievor's position. The ageement, like the statute, seems to contemplate a .bilateral .process in 37 which the union and the employer determine if there is a difference between them, then choose an adjudicator to resolve that difference. That is the pattern that is prescribed by the statute, and - .Article 32.05(H) aside, for the moment - that is what is mirrored in the collective agreement.' We do not think that, in addition, an employee/grievor has some free standing open~ended "common law" right to participate as an intervener in this ostensibly bilateral process - in effect, to be added as a "third part5," merely because it is his grievance that is being processed to arbitration. The common law does not "pour into" the collective agreement in thi's way. First of all, we think that one has to be ,,,er3, careful about grafting common-law notions on to a statutory collective bargaining scheme, to which the common-law has no general application (see the comments of Laskin C.J.C. in McGavin Toastmaster Ltd. v. Ainscough et al. [1976] 1 S.C.R. 718). Nor do we think that one should lightly imply a role for individual employee action in what is so obviously a mandatory collective bargaining regime. For if the grievor is right on this "common law point", every arbitration could become a multirparty affair at the instance of one or more individual employees, asserting that they were affected by the outcome; because it is .difficult to think of any arbitration proceeding where the grievor, and perhaps others, could not make that claim. So if the grievor is right, what is ostensibly a compulsory mechanism for resolving "differences" between the' institutional parties, (again see section 46 of the 29 38 CC~,4) would, perforce, become a multi party proceeding --just as if the collective where a bundle of individual contracts of employment. But that conception is agreement not consistent with the one articulated in Syndica! Catholique or in Noel, above; and the oddity of the proposal is merely underlined by the other oddities in the instant case - such as: that the grievor is asserting an interpretation of a particular clause that is different from that of the bargaining parties, who both maintain that it means something else. That seems counterintuitive in a collective bargaining world. But that would not be so odd at all, if, as a matter or right, an indMdual grievor had a common law fight to separate party status. For if that were so, he could argue whatever he liked, regardless of the position taken by his bargaining agent. It seems to us that the decisions in Hoogendoorn and Bradley, have to be confined to their particular facts: where the union is taking a position which, if accepted, might have specific, immediate and detrimental impact upon a particular individual, other than the grieving employee. In Hoogendoorn, for example, the union had filed a grievance on its own behalf and was attempting to have an individual fired; and the Court ruled that such individual had a right be heard in the process which might lead.to his discharge. In Bradley, the union was asserting a position on behalf of one employee, which would have resulted in the removal of another employee from his job. In both instances, the union, in its role as bargaining agent for the collectivity, was advancing a position that was specifically adverse to the job interests of an individual employee who was not the grievor. 'It was not just that the union was asserting an interpretation that (like all interpretations of a collective agreement) might affect other employees. The situation in the instant case is clearly very different; and in our opinion, these cases have no application. For as we have already indicated: it cannot be said at this stage that the union is ta'king a position on the grievor's complaints that is adverse to his own - other than, of course, in respect of the interpretation of Article 32.05(H), where the union and employer have not opposed the grievor% right to make his argument. In our view, the grieving employee has no independent common law right to participation in this proceeding, merely because his rights have been put in issue, or he may prefer to have the case presented differently. We do not think that common-law or natural justice considerations have any application in this context, or that those common law principles require that the bilateral arbitration process contemplated by the statute must become trilateral or multi-lateral whenever one or more employees can say that their rights may be affected by the proceeding. AS section 46(5) of the CCBA indicates: all employee~ in the bargaining unit are ultimately bound by the arbitrator's award. But, in our view, this does not mean that individual employees, or groupings of employees, are automatically entitled to separate party status in an arbitration proceeding. Nor do we think that an individual ~rievor has some free standing "common law right" to "intervener" or "interested party status" in the proceeding in which his grievance is being considered. 31 union has "policy" of carrying forward all grievances to arbitration, if the indMdual employee's so requests, or even whether the union's constitution requires that it do so. We make no finding about that one way or the other. However, even if the union's "practice" were as described by the grievor (the union and the employer do not accept either the reIevance or accuracy of that description) we do not think that such practice/policy goes so far as to affirm indMdual carriage rights in addition to those of the union, or in t2lace of the union and contraO' to the union's,wishes. For it is worth repeating: this is not a case where the union is refusing to carry an individual's grievance forward. Nor is it about whether an employee can demand that his complaints be taken to adjudication, regardless of the merits. This is a case where the employee asserts the independent right to do so himself, regardless of the presence of the union, or the position taken bY the union. It is, in other words, an effort by the g~-/evor to bypass, or at least, supplement, the union's role as his bargaining agent. We turn, then, to Article 32.05(H) itself. Article 32.05 H. has two sentences. The first sentence enhances the ability of an individual to present his own grievances, by purportedly removing any impediment that might be found in Article 32: "it is understood that nothing contained in this Article shall prevent an employee from presenting personally a ~rievance up to and includin~ a hearing by the arbitration board without reference to any Other person". The second 32 sentence of the clause purportedly describes the role of the union when article 32.05(H.) is engaged: "However, a Union Steward may be present as an obserYer, commencint at Step One, if the steward so requests". In this setting, the employee carries the case fom'ard, and the union is merely an observer, not a participant, in the process. We might note, however, that this particular verbal formulation is quite different than the one before the court in .~{acDo~aid v. Air Ccm~dct [1973] O.I. No. 849 (Ontario Div. Ct.). There, the agreement provided "...the employee ma'/ throughout this procedure handle the matter on his own behalf if he so desires, includin~ arbitration, in accordance with such special procedures as may. be arrano_ed between the employee and the company". The language in the Ah' Ca,reda agreement gave the individual employee a positive a right to proceed on his own, and clearly bypasses the trade union altogether. By contrast, Article 32.05(H) does not give all employees the affirmative right to proceed to arbitration on their own. It merely says that Ar#cle 32 [and only Article 32] should not stand in the way of whatever fights a grievor might othem, ise have. It is not a general affirmation of employee rights, but rather a limitation on the application of Article 32. But it is not Article 32 that stands in the way of an individual employee proceeding to arbitration on his own. It is the scheme of the collective bargaining, 33 i 42 endorsed by the legislation - and, in particular, the union's role as exclusive bargaining (which, as we have already noted is affirmed in Section 52 the CCBA and agent, repeated in .Article 1 of the collective agreement before us). Moreover, .~-ticle 32.05(H) does purport to operate "notwithstanding" these considerations, or despite Article 1 of the collective agreement. The "notwithstanding portion" of Article ~_, pertains only to that article and to no other. In our view, this is not a narrow or technical reading of the opening sentence of Article 32.05(H). -- especially given curious way in which that clause is framed. Rather, it is one which recognizes the context in wkich the words are used, and the balance that the agreement seeks to strike between individual employee action on the one hand, and the interests of the union and other employees on the other. It reads Article 32.05(H) is its full legal context, which includes the statutory scheme, and Article I of the agreement, with all that Article 1 implies. If the words "in this Article" were missing from the clause in dispute, one might be tempted to be give it the broader reading that the grievor asserts - allowing him to proceed on his own, or to be a separate party, regardless of the position..taken by the union. Likewise, if the clause were like the one in Air Canada. Or if the agreement were worded in a positive fashion "the employee shall have the right to..." II However given the elliptical way in which the language is framed, we see nothing inconsistent in finding a limitation somewhere else than in the article itself-- in 34 43 particular, in Article 1, and the union's status as exclusive bargaining agent..Article 32.05(}-I) not only permits that reading, but in our view, it is the preferable one. We might also observe, parenthetically, that this is not the only situation in this collective agreement where a clause appears to affirm a right to launch grievance on one hand, but limits that right on the other. Article 4.0lB begins "it is understood that nOthing contained in 4.0lA limits the right of an employee to grieve in accordance with the procedure as set out in Article ~9 ~_, grievance procedures"..4;ticle 4.0lB, reads like Article 32.05(H) - although like the latter provision, it does not contain an7)' affirmative right to grieve, but merely limits the implication that might otherwise be drawn from some other specified provision of the a__.reement. However, loo-king further on in the agreement: Article 4.02A7 makes it clear that despite the employee's apparent ability to ~ieve, an arbitrator, may choose not deal with grievance. Reference to 4.02A7 limits what might otherwise appear to be a broader right to pursue tkis 'kind of complaint to arbitration found in Article 4.0lB. As the college submits: Article .~~.05 H. seems to envisage a scenario in which (at least prima facie) the union is missing from the equation. The assertion of individual party. The union is merely an observer. What other meaning could be ascribed to the second sentence in article 32.05(H), and why would it be necessary to add that sentence if the union were a party already, or had a party's right to intervene (i.e. not just as an observer). 35 44 However, if the scenario contemplated by .&--ticle 32.05(H) is one in which the union's role is reduced to that of an "obse~,er", xve think that it is highly unlikely that the bargaining parties would have agreed that such scenario would depend only upon the assertion by an individual on "his right" to present his grievance on his own - which is to say, that by demanding his alleged "right" to "present" his grievances on his own, the union could be reduced, in,,'oluntarily, to the status of "observer". It is one thing to say that an individual is entitled to tag along at an arbitration proceeding, putting his own evidence and argument, independent of those made .by the union. That is already a curiosity, given the statutory and contractual role of the exclusive bargaining agent, and is not, in any event, the scenario that Article 32.05(H) seems to contemplate. However, it is ex~en odder to suggest a scenario, in which the assertion of some individual employee right, ousts the union, or reduces its role as bargaining agent. To be fair: the grievor does not make such assertion. He takes no position on the union's right to participate along with himself. He merely says that he can carry his case forward, on his own, regardless of the union's presence or acquiescence. But the fact is, the grievor is relying on Article 32.05(H) which itself suggests that where the individual is proceeding on his own, the union is merely an "observer". When the two sentences of Article 32.05(1-1) are read together, we think that the better reading, and more probable intention of the parties, is the one espoused by both the 36 union and the employer: that article 32.05 (H). removes impediments to an indMdual proceeding to arbitration, where the union a~'ees to drop ou/ of /he t)ictzo'e a,d allo~' lhe individualpresent his case o~ his own. If the union decides to do that, a local official is entitled to be present to monitor what is going on. But the union's status as "observer" is a voluntary one, in a setting in which it has already agreed that the employee ,,,,,ill proceed On his own. In our view, that reading of the clause is more consistent with the language that the parties have used; it is more consistent with the scheme of collective bargaining prescribed under the CCBA; it is more consistent with the union's role as exclusive bargaining agent and other .provisions of the agreement (especially Article 1); and it also avoids consequences that, in our view, the parties never intended. As we have indicated earlier: the union is entitled to consider, balance, advance, and, if necessary, ComprOmise the emplOyee interests over which it has custody by virtue of its status as exclusive bargaining agent. That role would be significantly undermined if an individual employee were entitled, as a right, to take anyt.hing to arbitration, whether there was merit to it or not. It would also be compromised and diluted, if an individual employee, had independent third party status, so that he could advance positions with which the union does not agree, or which might have an adverse impact on other employees -- particularly if the union were unable to participate in the process, but remained merely an observer. Nor is it irrelevant that the union (which is to say, the 46 institutional embodiment of the grievor's fellow workers) is burdened by the coszs of ttie process, or the consequences of whatever interpretation emerges from the process. In our view, such a fundamental reversal of the traditional and statutory role of the union would require much more specific language than is found here. Not to put too fine a point on it: did the bargaining parties envisage that any individual employee could, without the union's consent (or possibly even participation) carry each and every one of his grievances through to arbitration - at significant cost and with uncertain impact on his co-workers and the bargaining relationship? Was it envisaged that individuals could drive the arbitration process or commandeer the resources of the organization in this way? Is it likely that the union would have agreed to that? A_nd is it likely that the college would have agreed? In our view, the answer is "no" - as is perhaps underlined by the position that the institutional parties have taken on this point before us. For as we have also indicated: the position proposed by the grievor is opposed by both the bargaining parties, who agree with each other that the agreement means something else. We have some doubt whether it is open to an arbitration panel to tell the bargaining parties that their collective agreement means something other than what they both say it means. If the law of estoppel applies in labour arbitration (as it does) and precludes one party from advancing a position after suggesting that it means something /IQ 47 else, surely a shared interjgretation is the end of the matter. However, even assuming that an adjudicator could reach a conclusion different from the bargaining parties' joint submission, s/he should not lightly do so; and for the reasons outlined earlier, this arbitration panel is not inclined to do so. On the contrary, we are of the view that what the institutional parties propose is the more sensible, plausible and probable meaning of Article 32.05(H). In summary, while a cursory or superficial reading of the disputed clause might seem to favour the grievor's proposed interpretation, that proposal does not survive closer scrutiny. It is not consistent with the statutory scheme, with other parts of the collective agreement, or with the union's role or responsibility as the employees' exclusive bargaining agent. Finally, as we have already indicated: the interpretation advanced by the grievor, is not what the union and the employer themselves say the collective agreement means. For all of these reasons, we are unanimously of the view, that the grievor's position on this issue should be rejected. V - Disposition of the Preliminary Issue Having carefully considered the submissions put to us, we prefer the joint submission of the union and the employer on this preliminary issue. In our view the gfievor does not have a right, independent of the union, to participate in the arbitration process as an individual or "interested party". Nor does Article 32.05(H) give him an .... 39 48 independent right to carry his cases fom.'ard on his own, where, as here, the union has not relinquished carriage of the Cases. In view of this conclusion, it is unnecessary to determine whether the grievor would be entitled to counsel if article 32.05 (H) did apply -- which is to say, if the union decided to drop out and permit Mr. Gurofsk9, to carry his grievances forward on his own. Likewise, it is unnecessary to decide whether the union could be unwillingly excluded from an arbitration process by operation this, or any the of other clause in the collective agreement.. In accordance with the agreement of the parties, Mr. Gurofsky's grievances will be re-listed for fUrther hearing, to deal with such issues as the parties may agree upon, or the arbitration panel made determine. This particular panel is not as yet seized of any of those issues. DATED AT TORONTO TillS AY O 002. Pamela Munt-Madill (union nominee) Ron Hubert (college nominee) 40