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HomeMy WebLinkAbout1993-0123.Armes.94-08-17 ) 1 ( ( 1'tj ~.? '" - ONTARIO EMPLOYES DE LA COURONNE h'-' CROWN EMPLOYEES DE L 'ONTARIO ...~ 1111 GRIEVANCE cpMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 1 ) 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO, M5G lZ8 TELEPHONE/TELEPHONE (416) 326-13. 180 RUE DUNDAS OUEST BUREAlf 2100 TORONTO (ONTARIO) M5G lZ8 FACSiMILEJTELECOPIE (416) 326-13: r 123/93 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANqE SETTLEMENT BOARD - BETWEEN OPSEU (Armes) Grievor - and - The Crown in Right of ontario (Ministry of Health)Halton-Mississauga Ambulance Employer BEFORE: W Kaplan Vice-Chairperson J. Carruthers Member F Collict Member FOR THE P Lukasiewicz UNION Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE D Gorelle EMPLOYER Counsel Mathews, Dinsdale & Clark Barristers & Solicitors ) HEARING March 25; 1994 .-- , ( I ) \ ) ?- ( ( f? 2 ~. Introduction On March 25, 1994, a grievance alleging a violation of the health and safety provision of the Collective Agreement proceeded to a hearing before the Board in Toronto At that time, evidence and argument were heard, and the case was completed The Board met in executive session immediately following the hearing On March 31, 1994, the Vice-Chair of this panel of the Board sent the Registrar a draft decision for the consideration of the members On April 29, 1994, union counsel wrote the Registrar The text of Mr lukasiewicz's letter is as follows I am writing you to advise you that the Grievor and the Union have decided to withdraw the above-noted grievance I would be grateful if you would notify Mr Kaplan and the nominees as soon as possible of the withdrawal of the grievance Unless I hear from you to the contrary, I shall assume that this matter is now closed A copy of this letter was faxed to Employer counsel who wrote the Registrar the same day The text of Mr Gorelle's letter is as follows We are in receipt of a copy of a letter from Peter J I Lukasiewicz to you dated April 29, 1994 In this letter, Mr Lukasiewicz indicates his intention to withdraw the above-noted grievance Please be advised that the employer STRONGLY OBJECTS to Mr Lukasiewicz's request. The hearing with respect to this matter took place and was completed on March 25, 1994 At this point in time, we are only awaiting the arbitrator's decision We expect it to be released in the near future (emphasis not ours) " ? ( / .. 3 ( "" The employer incurred substantial cost, in terms of both time and money, in preparing for and attending at this hearing The employer was put to the additIonal inconvenience of securing the attendance of a witness, Mr Peter Dundas, who was no longer working for the ! Halton Mississauga Ambulance Service as of the date of the hearing This is not to mention the inconveni'ence to \. Mr Dundas. It is also submitted that this case had been scheduled for hearing since August 9, 1993 The hearing was originally scheduled to take place on October 6, 1993 but was adjourned on that date The hearing was next scheduled to take place on January 13, 1994 however, once again, the hearing was adjourned As previously mentioned, the hearing took place on March 25, 1994 It is submitted th~t there was ample time within which to withdraw or attempt to settle this mat,er prior to the hearing Neither Mr Lukasiewicz nor 'the union attempted to do so Finally, it is submitted that the issue raised at arbitration, as a result of the above-noted grievance is a very important issue and one that is likely to reoccur between these parties. The very purpose of the arbitration process is to resolve such disputes between the parties in order to avoid the need for ongoing and costly Iit!gation, over the same subject matter; into the future \ Based on the foregoing, it is submitted that to permit Mr Lukasiewicz to withdraw the grievance at this stage of the proceeding would constitute an abuse of process and a denial of natural justice where the two parties to a collective ,agreement have acceded to the jurisdiction of an arbitrator (by the very presence through evidence and , argument at the hearing on March 25, 1994) to resolve an issue in dispute In the event that any consideration whatsoever is given to Mr Lukasiewicz's request, we would respectfully request the opportunity to attend before the Board in order to make further submissions as to why the ) !J ( ( 4 ~; 1 withdrawal request ought not to be permitted After receiving these letters, the Registrar forwarded copies of them to the Vice-Chair and members of the Board On May 10, 1994, the Registrar sent both counsel copies of a letter from the Vice-Chair This letter requested the parties to make written submissions with respect to this issue to in order to assist the Board in determining whether the union and grievor were entitled, over the employer's objection, to withdraw a grievance after the case had proceeded to a hearing and that hearing had been completed The submissions were filed in due course, and this decision is limited solely to the disposition of the union's withdrawal request. Union Submissions In union counsel's submission, the union has the right to initiate a grievance, and it also has the right to withdraw a grievance even after that grievance has been referred to the Board Noting that the grievance i I procedure is a voluntary one, counsel argued that the responding party cannot compel a grievance to proceed once the initiating party has decided to withdraw the grievance Counsel argued that the "the arbitration process before the GSBis an extension of the grievance procedure There is no reason why there should be an abrogation of the Grievor's rights at this stage with a corresponding enhancement of the responding party's rights to the extent that the Grievor can be forced by a responding party to proceed with an arbitration it no longer wishes to pursue" In support of these assertions, counsel referred to Re Gueloh General Hosoital v. aNA (1992) 25 L.A.C. (4th) 260 (Burkett) and Re Reliacare ,Inc. v. Service Employee's Union (1991) 20 L.A C. (4th) 170 (Dissanayake), and also provided the Board with ." ( ( 5 \ ~; copies of some of the authorities referred to in each of these awards ) Union counsel also questioned the employer's assertion that the issue was an important one, ,not to mention the employer's claim that it had been and would be prejudiced shouJd the withdrawal request succeed There was, union counsel argued, nothing stopping the employer from filing its own grievance and in that way having the issue adjudicated before the Board The union questioned the' employer's assertion that the attendance by Mr J Dundas had caused prejudice to the employer Counsel expressed surprise at the assertion that Mr Dundas was not employed by the Halton Mississauga Ambulance Service, and suggested that he indicated that he was when he testified before the Board In any event, counsel argued, the Board has a long standing practice of not awarding costs, and this was not, in any event, an appropriate case for the Board to depart from its long-standing policy to that effect. , Union counsel made some submissions with respect to whether the union was entitled to withdraw its grievance "without prejudice" It is not necessary, however, given our ultimate result, to deal with this issue In conclusion, counsel argued that the Board should not "descend into the arena" and force a party to proceed with a grievance it has decided to the withdraw As the employer had not advanced any compelling reason why th~ union should not be allowed to fully exercise its carriage rights in this case and withdraw its grievance, counsel urged the Board to give effect to the union's withdrawal request. Employer Submissions In employer counsel's submission, the arbitral jurisprudence was clear' whether a party has the right to withdraw a grievance depends on the stage , 1" I ( \~, 6 in the arbitration process when the withdrawal attempt was made Accordingly, in Re Reliacare. the Board held, citing other cases, that a union I could withdraw a grievance prior to the heanng taking place That case, employer counsel argued, was to be distinguished from Re Guelph General Hospital where the union attempted to withdraw a grievance after jt had proceeded to a hearing, the hearing had taken place, the hearing had been completed, and the parties were awaiting the decision of the Board In Re Guelph Hospital the Board, after referring to the provisions of the Labour Relations Act requiring it, once a difference has been submitted to arbitration to render a decision, made the following observations \ there are strong- policy reasons for not permitting such a unilateral withdrawal If either party is permitted to unilaterally withdraw a grievance after the completion of the hearing, thereby avoiding the risk of loss on the facts relied upon, there is a twofold negative policy implication First, the effect is to lessen the incentive to settle prior to lthe hearing thereby runr:~ing counter to the statutory preference for two-party settlement where possible Secondly, the effect is to prevent the issuance of an award that might provide a definitive interpretation of the contract language at issue thereby sowing th~ seeds for future conflict in respect of that issue either in the administration of the agreement or in the negotiation of its renewal Having regard to the foregoing I find that once the parties decide to proceed to arbitration and have been put to the time and expense of a hearing, it is too late to unilaterally withdraw the grievance If jurisprudential support is required for this finding the two awards r€lied on by the hospital stand for the proposition that where the aggrieved. party continues to seek a declaration, even where the other specified relief is granted prior to the hearing, that party is entitled to \ r' ! ;t i ( !~ 7 ~~ ~ I force the matter on for hearing for the purpose of obtaining the declaration The two awards relied upon by the union (Re Health Labour Relations Assn. of B.C. (Grace Hospital) a'nd H.E.U. (1985), 20 L.A C. (3d) 247 (Kelleher) and Re Canadian Red Cross Blood Transfusion Service and O.N.A. (1981), 30 L.A.C. (2d) 23 (Shime)) are in respect of a withdrawal of a grievance prior to the arbitration and, therefore, are clearly distinguishable Accordingly, having heard this matter our decision on the merits follows (at 26J -262) In further support of this submission, employer counsel referred to an .J unreported Alberta decision, Alberta Government Telephone and International Brotherhood of Electrical Workers ((Clarke, October 20; 1993) \ Employer counsel argued that all of the concerns raised in the Re Guelph General Hospital case equally applied in the instant case Moreover, counsel pointed out that the same substantive issue put before the Board in this case, had been raised in at least one other case and adjourned pending the issue of our award. "Therefore," Mr Gorelle submitted, "to permit a withdrawal at this stage of the proceeding would encourage panel and issue 'shopping' and thereby constitute an abuse of process." In conclusion, employer counsel asked the Board to reject the union's request and to issue its award without further delay Union Reply In the union's submission, the Re Reliacare and Re Guelph Gene'ral Hospital awards could not be reconciled with one another based on the stage in the arbitration process at which a party attempts to withdraw a grievance In union counsel's submission, ~nd he referred to both the Re Reliacare award as well as an earlier decision extensively quoted in that case, Re Canadian Red Cross Blood Transfusion Service and ONA (1981) 30 L.A.C. (2d) 23 f , ~ ( ( ~, 8 ,~, (Shime), it canno~ be said that once a grievance has reached a certain point in the grievance procedure, namely a hearing, that the union loses carriage rights and that the grievance becomes the joint grievance of the union and the employer. This, counsel argued, would not make sense, and he submitted that the Re General Hospital Case was wrongly decided and should not .be relied upon by the Board. Counsel also made a number of observations about the Re Alberta Government Telephone award, and urged the Board not to give the principles set out in it any effect. Decision Having carefully considered the submissions of the parties, we are of the view that the union may not now withdraw its grievance, and that the Board will resume it's consideration of the draft award In due course, a final award will be issued In our view, the Re Reliacare and Re Guelph General Hospital cases can be I reconciled, although we would not go so far as the Board apparently did in ( the latter case in circumscribing the right to withdraw There is no doubt whatsoever that either the union or the employer, for the reasons given in Re Red Cross Blood Transfusion Service and Reliacare, withdraw a grievance at any time prior to the hearing To find otherwise would be to ignore the realities of the grievance procedure Inevitably, there will be some prejudice to the other side, but either party, having referred a case to arbitration, is entitled to withdraw its grievance prior to the hearing taking place And this Board, established by statute, has the power to issue appropriate remedies in cases where the withdrawal of a grievance previously referred to the Board constitutes some form of abuse \ ., ;j ( ( ~. - 9 ,'~ (see Re- Cross Blood Transfusion Service at 26-27 for a discussion of both an arbitration board's jurisdiction to deal with this issue as well as some of the general principles that might be applied m a case of this kind) However, we are of the view that once a case has proceeded to a hearing, evidence ~nd argument have been heard, the hearing has been completed and the Board has begun the deliberative process leading to the issue of an award, a party cannot withdraw it's grievance absent the consent of the other side To allow either sidr to unilaterally withdraw its grievance in these circumstarices would be to seriously undermine the integrity of the arbitration process. It would also open the door to all sorts of abuse The parties have many opportunities to settle their disputes, and it is qUite common for them to do so just before a hearing begins, or even after 1 it has begun But once a hearing has been completed, to allow a party, unilaterally and over the objections of the other side, to decide that it no longer wis,hes to proceed, would not only be contrary to our statutory mandate to hear and decide issues between the parties, but also contrary to sound principles of industrial relations In reaching this result, it has not been necessary to decide whether a party may withdraw a grievance once a hearing has begun but before it has been completed Needles$ to say, it is not unknown for a party to do SO, and it is our view, for whatever this observation is worth, that a rule prohibiting a party from doing so would make very little industrial relations sense However, there may be cases where it would be an abuse of process to allow a party to withdraw a grievance after the hearin~ has begun Absent the consent of the other side to the withdrawal, cases of this kind will have to be decided on their own particular facts. ec'" I ( .. \ 10 ~~' ~ Accordmgly, and for the foregoing reasons, the Board will follow its usual course in the consideration of the Vice-Chair's draft award arJd in the ultimate issuing of a final decision DATED at Toronto this 17th day of August, 1994 \ I II __________ I J ----------------- William Kaplan Vice-Chairperson Dissent without written reason ----------------- J Carruthers Member V 9'. ----------------- F Collict ,-Member