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HomeMy WebLinkAbout2000-1328.Cheng.01-08-03 Decision ~M~ om~o EA1PLOYES DE LA COURONNE _Wi iii~~~i~T DE L "ONTARIO COMMISSION DE REGLEMENT "IIIl__1I'" BOARD DES GRIEFS Ontario 180 DUNDAS STREET WEST SUITE 600 TORONTO ON M5G 128 TELEPHONElTELEPHONE. (416) 326-1388 180 RUE DUNDAS OUEST BUREAU 600 TORONTO (ON) M5G 128 FACSIMILE/TELECOPIE. (416) 326-1396 GSB#1328/00 UNION#OLB060/99 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontano LIqUor Boards Employees' Umon ( Cheng) Grievor -and- The Crown In RIght of Ontano (LIqUor Control Board of Ontano) Employer BEFORE RandI H. Abramsky Vice-Chair FOR THE GRIEVOR Craig Flood Counsel Koskie Minsky BarrIsters & SOlICItorS FOR THE EMPLOYER AllIson Renton Counsel, Legal ServIces LIquor Control Board of Ontano HEARING March 7 2001 June 28 2001 AWARD The LIqUor Control Board of Ontano (LCBO or Employer) has raised a prelImInary obJectIOn to the JunsdlctIOn of thIS Board to hear the gnevance In thIS matter SpecIfically the LCBO asserts that because the gnevor raised the same Issue In a pnor gnevance In 1997 whIch was not pursued, the gnevor and Umon may not seek to arbItrate the same Issue In a 1999 gnevance ThIS Award addresses thIS prelImInary obJ ectIOn. Facts On January 28 1999 the gnevor James Cheng, filed a wntten gnevance allegIng a vIOlatIOn of "ArtIcle 6 IS(a) of the collectIve agreement and any other applIcable clauses" ArtIcle 6 IS provIdes as follows (a) An employee shall receIve a shIft premIUm of one dollar ($1 00) per hour for all hours worked between 600 p.m and 700 a.m Where more than fifty percent (SO%) of the hours, InclUSIVe of lunch and rest pen ods, fall wIthIn thIS penod the premIUm shall be paid for all hours worked. (b) ShIft premIUm shall not be consIdered as part of an employee's basIc hourly rate AccordIng to Mr Cheng, thIS gnevance concerns overtIme shIfts that he worked around Chnstmas of 1998 On January 28 1997 exactly two years earlIer Mr Cheng had filed a Stage 1 complaInt also allegIng a vIOlatIOn of ArtIcle 6 IS (a) That complaInt, whIch was wntten for hIm by a co-worker states as follows 2 On both Jan 20/97 & Jan 24/97 worked overtIme on the hours of 1600 to 2000 AccordIng to ArtIcle 6 15(a) of collectIve agreement, shIft premIUms are OWIng yet were not credIted. The "settlement desIred" was "applIcable ShIft premIUms for above dates & hours In questIOn." The form, entItled "1st STAGE GRIEVANCE REPORT" was an employer form used to record Stage 1 complaInts The Employer gave It the number "D W #011- 97 " AccordIng to Mr Cheng, the wntten form was gIven to management and he was later Informed that hIS complaInt had been demed. The wntten response on the form, dated February 4 1997 states "Demed due to ShIft premIUm not paid for overtIme" and appears to be sIgned by the gnevor's manager Mr Surgay NikulIn, Manager of BusIness AutomatIOn. On March 19 1997 Mark Wagner then Human Resources AdvIsor - Durham Warehouse, met wIth Mr Cheng and Umon RepresentatIve James to dISCUSS a number of Mr Cheng's outstandIng gnevances Mr Wagner testIfied that the meetIng was set up to see If the Issues could be resolved and that he went through them, one at a tIme As to complaInt #011-97 Mr Wagner testIfied that he "reIterated the Employer's stance regardIng shIft premIUm on overtIme" - "that the Employer does not pay ShIft premIUm on overtIme" - and that the gnevance was dropped at that pOInt. He dId not recall hIS exact words, or the Umon's response - only that the gnevance was dropped and 3 that It would not be proceedmg. His understandmg was that the Employer's posItIOn was bemg accepted and It would not be further challenged by gomg to the next stage Mr Wagner acknowledged, on cross-exammatIOn, that there were no mmutes of settlement concermng complamt #011-97 and that he receIved no document from eIther the Umon or Mr Cheng statmg that they agreed to the Employer's posItIOn regardmg the ShIft premIUm or that there would be no further gnevances on the Issue He could not recall Mr James' statmg at the meetmg that he agreed to the Employer's posItIOn, or words to that effect. Seven other complamts filed by Mr Cheng were settled at the March 19 1997 meetmg and formal Minutes of Settlement were agreed to on that date Accordmg to Mr Cheng, these gnevances related to other overtIme claims Accordmg to the Minutes of Settlement, Mr Cheng was paid 25 hours at tlme-and-one-half hIS normal pay rate and the seven lIsted complamts were "wIthdrawn, not to be refiled." CopIes of the Minutes were dlstnbuted to "OBLEU" "Coordmator Human Resources ServIces" " Staff RelatIOns" and "Department DIrector" Mr Cheng recalled meetmg wIth Mr Wagner and Mr James on March 19 1997 but he dId not recall specIfically dlscussmg complamt #011-97 His recollectIOn was that he met Imtlally wIth Mr James who urged hIm to drop thIS and a number of other matters m order to receIve payment for the larger overtIme claim. He testIfied that he told Mr Wagner at the start of the meetmg, that he was droppmg all of the other gnevances and 4 was Just proceedIng wIth the overtIme one He stated that he had made up hIS mInd to forget about the other ones and "get the bIg one, the overtIme" claim. He acknowledged, on cross-eXamInatIOn, that hIS 1997 complaInt and the 1999 gnevance Involved "the same Issue" i e that he was not paid ShIft premIUm ArtIcle 27 Gnevance Procedure, provIdes, In pertInent part, as follows 27 1 Definitions (c) "Gnevance" means a dIfference an SIng from the InterpretatIon, applIcatIOn, admInIstratIOn or alleged contraventIOn of the provIsIOns of thIS Agreement. 27.3 STAGE 1 (Complaint Stage) (a)(I) An employee who has a complaInt or a dIfference shall dISCUSS the complaInt or dIfference wIth hIs/her supervIsor as desIgnated by the Employer wIthIn ten (10) days of the employee first becomIng aware of the CIrcumstances gIVIng nse to the complaInt or dIfference (iI) Unless otherwIse agreed between the employee and hIs/her supervIsor a meetIng In respect of an employee's complaInt shall only be attended by the employee and hIs/her supervIsor (b) The supervIsor shall consIder the complaInt or dIfference and gIve hIs/her response to the employee wIthIn ten (10) days of the dIscussIOn. (d) If the complaInt or dIfference IS not satlsfactonly resolved by the supervIsor It may be processed wIthIn an addItIOnal ten (10) days from the date of the supervIsor's response or the expIratIOn of the tIme lImIts set out In (b) above In the folloWIng manner 27 4 STAGE 2 (a) The employee may file a gnevance In wntIng wIth hIs/her supervIsor specIfYIng the clause or clauses In thIS Agreement alleged to have been vIOlated. (b) The supervIsor shall complete an InVestIgatIOn of the gnevance and provIde the gnevor wIth hIs/her wntten decIsIOn wIthIn fifteen (IS) days of reCeIVIng the gnevance The InVestIgatIOn may Include meetIng wIth the employee affordIng hIm/her an opportumty to be heard. S 27 5 STAGE 3 (a) (I) If the gnevance IS not resolved under ArtIcle 274 the employee may submIt the gnevance to the Chair or desIgnee wIthIn five (S) days of the date that he/she receIved the decIsIOn under ArtIcle 27 4 (iI) In the event that no decIsIOn In wntIng IS receIved In accordance wIth the specIfied tIme lImIts In ArtIcle 274 the gnevor ma submIt the gnevance to the Chair or desIgnee wIthIn five (S) days of the date that the supervIsor was reqUIred to have hIs/her decIsIOn In wntIng In accordance wIth ArtIcle 27 4 27 6 STAGE 4 If the gnevor IS not satIsfied wIth the decIsIOn of the Chair or desIgnee or If a decIsIOn IS not receIved wIthIn the specIfied tIme lImIts, the gnevor may apply to the Crown Employee Gnevance Settlement Board for a heanng go the gnevance wIthIn five (S) days of the date he/she receIved the decIsIOn or wIthIn five (S) days of the eXpIratIOn of the specIfied tIme lImIt for reCeIVIng a deCISIOn. 27.8 The Umon shall have the nght to lodge a gnevance based on a dIfference ansIng dIrectly wIth the Employer However such a gnevance shall not Include any matter upon whIch an employee IS personally entItled to gneve Such gnevance shall first be presented, In wntIng, to the Employer wIthIn twenty (2) days of the CIrcumstances gIVIng nse to the gnevance 27 12 Where a gnevance IS not processed wIthIn the tIme allowed or has not been processed by the employee or the Umon wIthIn the tIme prescnbed It shall be deemed to have been wIthdrawn. Arguments of the Parties A. The Employer The Employer contends that Mr Cheng's January 1999 gnevance IS Inarbltrable because he dId not pursue hIS January 1997 gnevance on the same Issue It submIts that 6 when the matter was dIscussed between the partIes In March 1997 the Employer reIterated Its posItIOn that It does not pay ShIft premIUm on overtIme hours and that the matter was then dropped. It asserts that there IS no eVIdence that the matter was dropped on a "wIthout preJudIce" basIs, and that the Employer qUIte properly understood the Umon's actIOn to be an acceptance of ItS posItIOn on the Issue wIthout further challenge Consequently It argues that It had a nght to expect finalIty and certaInty on the Issue, and that the gnevor should not be allowed to raise thIS Issue agaIn. In support of ItS contentIOn the Employer relIes on Ontario Liquor Boards Employees Union (Lariviere) and Liquor Control Board of Ontario GSB No 1375/99 (Hams, Vice- Chair) It submIts that Lariviere holds that wIthdrawal of a gnevance eIther estops the umon from contInuIng wIth another gnevance or renders It res JudIcata when three condItIOns are met (1) the matter must be between the same partIes (2) the matter must be IdentIcal In both proceedIngs, and (3) the matter must have been brought for the same obJect. The Employer submIts that all three condItIOns are met In thIS case SpecIfically It asserts that the gnevor the Umon and the Employer are the same the matter IS IdentIcal because both claims assert a vIOlatIOn of ArtIcle 6 15(a) and the obJect of both claims are the same - to receIve payment of shIft premIUm for overtIme hours It submIts that under LanVlere "a party may not bnng forward another complaInt over the same fact sItuatIOn after that fact sItuatIOn has been settled, abandoned, wIthdrawn, or finally determIned by a competent tnbunal " 7 The Employer further relIes on Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 15 L.A C 403 (RevIlle) In whIch the board of arbItratIOn determIned that two gnevances, despIte beIng worded dIfferently Involved the same Issue and that the second one could not proceed. In that case, the board cIted to [fA. W Local 456 and Mueller Ltd (1961), 12 LAC 131 (RevIlle) whIch set out the ratIOnale for the pnnclple that a party IS barred and estopped from proceSSIng a gnevance whIch IS IdentIcal to a former gnevance and IS eIther wIthdrawn, abandoned or settled, or determIned by a board of arbItratIOn, at p 404 The gnevance procedure IS desIgned to provIde members of the bargaInIng umt and the umon wIth a method of orderly proceSSIng theIr respectIve gnevances In order to aVOId the expense Inherent In the arbItratIOn process the procedure provIdes for bona fide efforts to be made by both the gnevor and management to settle the dIspute at vanous stages and at vanous levels It follows, therefore, that If the gnevor and/or the umon actually or ImplIedly accept the decIsIOn of management they should not be allowed to have second thoughts on the matter and re-process essentIally the same gnevance at a later date If there were to be allowed, management would never know whether In fact, ItS decIsIOn had [been] accepted by the IndIVIdual gnevor or the umon representIng hIm, and management could be plagued and harassed In what would be a plaIn abuse of the gnevance procedure The Employer contends that the same ratIOnale applIes In thIS matter The Employer further relIes on Re Weston Bakeries Ltd (Kingston) and Milk and Bread Drivers Dairy Employees, Caterers and Allied Employees, Local Union 647 (1998), 76 L.AC (4th) 258 (SImmons) In that case, the arbItrator held that the "arbItral rule of abandonment" rendered a subsequent gnevance on "the same subJect matter" and seekIng an IdentIcal remedy as In an earlIer gnevance that had been abandoned Inarbltrable In part, the arbItrator based hIS decIsIOn by "takIng Into consIderatIOn the 8 purpose of the rule whIch, In my VIew was establIshed to deal precIsely wIth the sItuatIOns whIch are before me" (76 LAC (4th) at 267) The Employer further contends that to the extent the testImony of Mr Wagner and Mr Cheng dIffer about dIscussIOns whIch took place dunng the March 19 1997 meetIng, an adverse Inference should be drawn agaInst the Umon for ItS faIlure to call Mr James, the Umon representatIve present at that meetIng, as a wItness In support of ItS posItIOn, It cItes to Re Canada Post Corp and Canadian Union of Postal Workers (Seymour) (1992) 25 L.AC (4th) 137 (Shlme) It submIts that based on the eVIdence presented Mr Wagner clearly told the Umon about ItS posItIOn on the payment of ShIft premIUm for overtIme hours and the gnevance was then dropped. FInally In the Employer's VIew the complaInt submItted by Mr Cheng In January 1997 was clearly a "gnevance" as defined In ArtIcle 27 1 of the collectIve agreement. The term "gnevance" IS defined as "a dIfference ansIng from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn of the provIsIOns of thIS Agreement. " It argues that the Issue raI sed In #011-97 Involves an "InterpretatIon of the provIsIOns of thIS Agreement" specIfically ArtIcle 6 15(a) the same artIcle raised In Mr Cheng's January 1999 gnevance The Employer further relIes on ArtIcle 27 12 whIch states that "[w]here a gnevance IS not processed wIthIn the tIme allowed or has not been process by the employee or the Umon wIthIn the tIme prescnbed It shall be deemed to have been 9 wIthdrawn." The Employer contends that If the Board concludes that #011-97 was not wIthdrawn at the March 19 1997 meetIng, It was wIthdrawn by vIrtue of ArtIcle 27 12 AccordIngly the Employer asks that the 1999 gnevance of Mr Cheng be dIsmIssed. B. The Union The Umon contends that the onus IS on the Employer to establIsh that the January 1999 gnevance of Mr Cheng IS Inarbltrable The Umon submIts that for a vanety of reasons the Employer faIled to meet ItS onus FIrst, the Umon submIts that Mr Cheng's 1997 complaInt was not a "gnevance" It contends that the collectIve agreement clearly dIstIngUIshes between Stage 1 the "complaInt stage" and Steps 2 and 3 the "gnevance" stages It submIts that the January 1997 complaInt ofMr Cheng was a Stage 1 "complaInt or dIfference" and never became a formal "gnevance" under ArtIcle 27 It asserts that thIS Board should be very wary of treatIng a decIsIOn not to proceed beyond Stage 1 as bIndIng the Umon to the Employer's InterpretatIOn of the collectIve agreement for all tIme Such a rulIng, It submIts, would senously undermIne attempts to resolve matters and make a mockery of the gnevance procedure Instead of real dIscussIOns and attempts to resolve matters Informally the Umon submIts that the partIes would be forced to posture Instead and nothIng would be resolved or wIthdrawn. 10 ThIS IS especIally true, the Umon notes, when a "package" deal IS agreed upon, as In thIS matter whereby certaIn claims are dropped In exchange for other ones The Umon submIts that the testImony ofMr Cheng was that he was wIllIng to forget about #011-97 In order to receIve payment for the "bIg one" hIS overtIme claims The Umon further contends that the eVIdence does not support a findIng of estoppel At the March 19 1997 meetIng, It submIts, there was no representatIOn by the Umon that It agreed to the Employer's posItIOn on shIft premIUm or that It would not rely on ItS stnct legal nghts under the collectIve agreement. Nor It contends, has there been any demonstratIOn of detnmental relIance by the Employer a faIlure that IS fatal to any estoppel argument. In support, the Umon cItes to Ontario Liquor Board Employees Union (Lariviere) and Liquor Control Board of Ontario supra The Umon also contends that there was no agreement by the partIes that the Employer's InterpretatIOn of ArtIcle 6 15(a) would govern the partIes In the future, or that It would not gneve the Issue There was no memorandum of settlement on #011-97 There was no eVIdence that Mr Cheng or Mr James stated that they agreed wIth the Employer's posItIOn. There was no eVIdence that the Umon's head office was even Informed of the dISposItIOn of Mr Cheng's complaInt. Mr Wagner the Umon notes, could not recall precIsely what he said or Mr James said dunng the March 19 1997 meetIng. In these cIrcumstances, the Umon submIts that the decIsIOn not to proceed wIth #011-97 cannot preclude a subsequent gnevance In support of ItS posItIOn, the Umon cItes to Re Ecbtards of Canada, Unit of General Signal of Canada Ltd and United 11 Steehwrkers, Local 7466 (1974) 6 LAC (2d) 147 (Adams) Re Lakehead District Roman Catholic Separate School Board and Ontario English Catholic Teachers Assn. (Post Vacancies Grievance)[2000] O.L AA No 131 (QUIcklaw) (WhItaker) Re Canada Post Corp and Canadian Union of Postal Workers (CUPW-360-GC-166)[1983] C.L AD No 19 (QUIcklaw)(Blrd) Re Longyear Canada Inc and International Association of Machinists Local Lodge 2412 (1981) 2 L.AC (3d) 72 (P Plcher) The Umon also argues that the subJect matter of the January 1997 complaInt dIffers from the January 1999 gnevance, and that they are not the "same" gnevance It contends that each IS based on a dIscrete claim for compensatIOn on dIscrete days It submIts that Mr Cheng's January 1999 gnevance IS based on claims for compensatIOn from Chnstmas of 1998 not two days In January of 1997 CItIng, Laviviere supra at p 5 the Umon contends that whIle settlement, abandonment, wIthdrawal or determInatIOn of a specIfic matter bnngs that matter to an end, "[t]hat does not prevent another dIfferent matter from beIng lItIgated." It also cItes to OPSEU (Akkel) and Ministry of Correctional Services GSB No 623/91 (KIrkwood, Vice-Chair) In terms of the Employer's adverse Inference contentIOn, the Umon contends that there was no need for It to call Mr James It submIts that IfMr Wagner had testIfied that Mr James agreed wIth the Employer's InterpretatIOn and he was not called to refute that an adverse Inference could be drawn, but no such testImony was elIcIted. Instead, It argues that Mr Wagner could not recall eIther hIS own exact words or those of Mr James Consequently It asserts that there was no need to call Mr James because there 12 was no eVIdence that he made a representatIOn on behalf of the Umon and no adverse Inference should be drawn. AccordIngly the Umon asks that the Employer's prelImInary obJectIOn be dIsmIssed. Decision For the reasons set forth below I conclude that the Employer's prelImInary obJectIOn must be dIsmIssed. Based on the specIfic facts presented, I cannot conclude that the decIsIOn not to proceed wIth #011-97 renders the January 1999 gnevance Inarbltrable eIther on the basIs of Issue estoppel, res judicata or the arbItral pnnclple of abandonment. Even acceptIng Mr Wagner's testImony In ItS entIrety I cannot conclude that the Umon specIfically agreed to the Employer's InterpretatIOn of ArtIcle 6 IS(a) His testImony was that he reIterated the Employer's posItIOn that It does not pay ShIft premIUm for overtIme hours and the gnevance was wIthdrawn at that pOInt. He could not recall Mr James or Mr Cheng agreeIng to the Employer's posItIOn. There was no memorandum of settlement statIng that the Employer's InterpretatIOn should govern In the future There was no document recordIng that the Umon or the gnevor agreed to the Employer's InterpretatIOn or ArtIcle 6 IS or that no further gnevances would be filed. WhIle Mr Wagner testIfied that It was hIS "understandIng" that the Umon was acceptIng the Employer's InterpretatIOn of the collectIve agreement, there was no specIfic agreement to that effect. 13 Indeed, there was no eVIdence that the decIsIOn not to proceed wIth #011-97 was ever conveyed to the head office of the Umon. In contrast, a copy of the March 19 1997 Minutes of Settlement concermng seven other complaInts by Mr Cheng was sent to "OBLEU" Although there IS no oblIgatIOn on the Employer to Inform the Umon of ItS understandIng of the decIsIOn not to proceed wIth #011-97 ItS faIlure to do so undermInes ItS claim that the Umon IS bound by the decIsIOn ofMr Cheng not to proceed and that It accepted the Employer's InterpretatIOn of ArtIcle 6 15(a) Under the partIes' collectIve agreement, Stage 1 IS an Informal stage In whIch an "employee who has a complaInt or a dIfference shall dISCUSS the complaInt or dIfference wIth hIs/her supervIsor " If not resolved, the employee may then file "a gnevance In wntIng " at Stage 2 Although the March 19 1997 meetIng occurred after Stage 1 It took place before Stage 2 was Imtlated. It was an Informal meetIng to attempt to resolve a number of outstandIng complaInts of Mr Cheng and It accomplIshed ItS aim. Seven of Mr Cheng's complaInts were resolved through Minutes of Settlement and a number of others, IncludIng #011-97 were dropped wIthout reasons beIng stated. Under these cIrcumstances, the decIsIOn not to proceed to Stage 2 cannot bInd the Umon or the gnevor to the Employer's InterpretatIOn of the collectIve agreement or render Mr Cheng's January 1999 gnevance Inarbltrable As set forth In Re Ecbtards of Canada, Unit of General Signal of Canada Ltd and United Steehwrkers, Local 7466 supra at p 146 "The arbItral Junsprudence IS all but unammous In denYIng probatIve 14 value to InterpretatIOns Involved In pre-arbItratIOn settlements, at least unless the partIes have clearly set out In mInutes of settlement that the InterpretatIOn should govern In the future" That pnnclple IS even more compellIng where there IS no formal settlement of the dIspute As ArbItrator Adams noted at pp 146-47 "It was not establIshed whether the matter was settled or sImply abandoned and hence I cannot draw any Inference that by ItS actIOn the umon agreed wIth the employer's InterpretatIOn." The ratIOnale for requmng a clear Intent that the InterpretatIOn should govern In the future rests wIth the nature and purpose of the gnevance procedure - an Informal process to resolve dIsputes at the earlIest stage possIble As stated In Re City of London and C UP.E. Local 101 (1976) 13 LAC (2d) 213 at 214-1S (Hinnegan) [N]o probatIve value can be gIven to an arbItratIOn settlement at least unless the partIes have clearly set out mInutes of settlement or otherwIse shown IntentIOn that the InterpretatIOn should govern In the future The reason for thIS IS sImply that a pre-arbItratIOn settlement IS almost always made In the spmt of compromIse whIch IS a fundamental of the dynamIcs of labour relatIOns wIth no necessary IntentIOn that the settlement should govern In all events In the future SImIlarly as stated In Palmer Collective Agreement Arbitration in Canada, at p 21S Settlement or wIthdrawal of a partIcular gnevance does not prevent a party from takIng sImIlar matters whIch anse subsequently to arbItratIOn. ThIS has been explaIned as follows Settlements at any stage of the gnevance procedure precedIng arbItratIOn do not have to be In conformIty wIth the partIes' legal nghts and oblIgatIOns No party to a settlement IS estopped thereby In relatIOn to the arbItratIOn of a sImIlar matter anSIng subsequently But the settlement Itself IS bIndIng. IS Most cases have held that In order for the InterpretatIOn of the collectIve agreement Involved In pre-arbItratIOn settlements to be of precedentlal value In arbItratIOn, the partIes must so bInd themselves expressly These pnnclples were followed In Re Longyear Canada and Int I Association of Machinists supra In that case "some years back" the Umon had filed a gnevance on behalf of an IndIVIdual contestIng the company's lettIng field employees, who were not part of the bargaInIng umt, carry goods desIgnated for general delIvery to a Job sIte The Umon wIthdrew the gnevance pnor to It beIng referred to arbItratIOn, and the presIdent of the umon stated, at the tIme, that he dId not feel that the umon had a gnevance Later the umon filed another gnevance raiSIng the same Issue - whether field employee could carry goods desIgnated for general delIvery to a Job sIte The employer argued that the second gnevance was barred by the wIthdrawal of the earlIer one, both on an estoppel basIs as well as the pnnclple of abandonment. ArbItrator Plcher reJected the contentIOn that the wIthdrawal of the gnevance accompamed by the presIdent's words "we don't have a gnevance" constItuted a representatIOn or ImplIcatIOn that the umon agreed wIth the company's practIce or that It would not seek to stnctly enforce ItS nghts under the collectIve agreement. Although she agreed that "In the Interest of certaInty finalIty efficIency and the Integnty of the process, a umon that settled as gnevance allegIng a vIOlatIOn based on a partIcular IncIdent cannot later refile the same gnevance based on the on the same IncIdent," she reJected the contentIOn that wIthdrawal of a "gnevance InvolvIng the same subJect-matter or the same general pnnclple" barred the later gnevance (2 L AC (3d) at 81-82) 16 AccordIngly a decIsIOn by an employee not to pursue a gnevance should not, wIthout more, constItute a representatIOn or agreement to accept the Employer's InterpretatIOn of the collectIve agreement. As stated by Vice-Chair Hams In Ontario Liquor Board Employees Union (Laviviere) supra at p 5 "The wIthdrawal, settlement or abandonment of a gnevance cannot necessanly be taken as acqUIescence In the OpposIte party's VIew of arbltrabIlIty for all other matters and all other gnevors" In my VIew thIS IS especIally true at the earlIest stages of the gnevance procedure Under the partIes' collectIve agreement, WIth the exceptIOn of umon gnevances, It IS the IndIVIdual employee who decIdes whether or not to proceed to Stages 2 and 3 The employee has the optIOn to be accompamed and represented by a umon representatIve dunng those stages but may act alone Dunng Stage 1 unless "otherwIse agreed" a meetIng to dISCUSS a complaInt or dIfference "shall only be attended by the employee and hIs/her supervIsor" GIven the nature and purpose of the gnevance procedure, the decIsIOn of an employee not to pursue hIS or her claim dunng these early stages should not, by Itself, bInd the Umon to the Employer's posItIOn on an Important Issue of contract InterpretatIOn. ThIS pnnclple applIes regardless of whether or not complaInt #011-97 should be consIdered a "gnevance" Under ArtIcle 27 an employee may have a "complaInt or dIfference" whIch does not Involve a "dIfference ansIng from the InterpretatIOn, applIcatIOn, admInIstratIOn or alleged contraventIOn" of the collectIve agreement. The words "complaInt or dIfference" are dIfferent from and broader than the defimtIOn of a "gnevance" But regardless of whether complaInt #011-97 should be consIdered a 17 "gnevance" or sImply a "complaInt or dIfference" Mr Cheng's decIsIOn not to proceed to Stage 2 cannot, under the facts of thIS case, constItute a representatIOn whIch estops hIm, or res judicata or an abandonment whIch would preclude thIS Board from havIng JunsdlctIOn to hear the January 1999 gnevance In Re Lakehead District Roman Catholic Separate School Board, supra, ArbItrator WhItaker determIned that In decIdIng whether a wIthdrawn gnevance constItuted eIther an Issue estoppel or res judicata wIth respect to any subsequent gnevance filed on the same Issue the arbItrator's role was "to construe the understandIng of the partIes based on the CIrcumstances surroundIng the wIthdrawal" In so rulIng, he cIted to Re Acme Strapping Co and United Steehwrkers, Local 6572 (1991), 22 LAC ( 4th) 400 at 415 (Baum) that the key questIOn IS whether "wIthdrawal of a gnevance has been taken by the partIes to mean a settlement of the dIspute on the other party's terms" In thIS case, there IS no eVIdence that the wIthdrawal of #011-97 was taken by the Umon or the gnevor to mean a settlement of the dIspute on the Employer's terms Clearly It was wIthdrawn, but wIthout more, It cannot be assumed that It was wIthdrawn on the basIs that the Umon and gnevor were concedIng the correctness of the Employer's posItIOn. Accord Re Nabob Foods Ltd and Canadian Allied Manufacturers Wholesale and Retail Union (1982) 2 L.AC (3rd) 353 (GermaIne) 18 In Ontario Liquor Board Employees Union (Laviviere) supra, a case relIed upon by both partIes, Vice-Chair Hams concluded that "a party may not bnng forward another complaInt over the same fact sItuatIOn after that fact sItuatIOn has been settled, abandoned, wIthdrawn, or finally determIned by a competent tnbunal" He contInued at p 5 The settlement, abandonment, wIthdrawal or determInatIOn of a specIfic matter bnngs that matter to an end. That does not prevent another dIfferent matter from beIng lItIgated. Where the subsequent matter Involves the applIcatIOn of sImIlar legal pnnclpals to a sImIlar fact sItuatIOn the result may be easIly predIcted, unless the pnor determInatIOn IS mamfestly wrong None the less, the matter IS lItIgable SImIlarly In OPSEU (Akker) and Ministry of Correctional Services, supra, the Board reJected the Mimstry's contentIOn that the wIthdrawal of an earlIer sImIlar gnevance was res judicata or Issue estoppel and barred a subsequent gnevance In both cases the gnevor alleged that the Issuance of an attendance letter constItuted harassment. The first gnevance was wIthdrawn on the basIs that the attendance letter was not "dIscIplIne" The Board ruled at p 4 that thIS was "not a sItuatIOn In whIch thIS gnevance could be said to anse from the earlIer gnevance" nor dId It Involve a "gnevor who has settled a matter to have second thoughts and relItlgate the Issue" Instead, It found that there was "no basIs to find that thIS matter [the Issue of harassment] ha[d] been resolved by ItS wIthdrawal" In thIS case, the partIes dIspute whether or not the 1997 complaInt and the 1999 gnevance concern the "same fact sItuatIOn." I conclude that they do not Involve the same fact sItuatIOn, they Involve the same legal Issues The 1997 complaInt concerns two days In January 1997 when the gnevor dId not receIve a shIft dIfferentIal The 1999 gnevance 19 concerns some dates In December 1998 when the gnevor dId not receIve a shIft dIfferentIal The specIfic facts that led to the two complaInts are dIfferent. The legal Issues raised regardIng the InterpretatIOn of ArtIcle 6 15(a) are IdentIcal Even though the legal Issues are the same, I cannot conclude that the decIsIOn not to proceed wIth #001-97 bars the 1999 gnevance The basIc reason for the "arbItral rule of abandonment" lIes In fostenng the "orderly proceSSIng of gnevances" and provIdIng a "measure of finalIty to the resolutIOn of gnevances " Re Nabob Foods Ltd and Canadian Allied Manufacturers Wholesale and Retail Union (1982) 2 L.AC (3d) 353 357 (GermaIne) As stated In that decIsIOn at p 357 A trade umon IS therefore precluded from ImplIcItly concedIng an Issue and then later reconsldenng ItS posItIOn and attemptIng to pursue the same Issue Employers are thus protected from beIng "plagued and harassed" In thIS case there IS no eVIdence that the Umon or the gnevor through the wIthdrawal of #011-97 explIcItly or ImplIedly accepted the Employer's posItIOn on ArtIcle 6 15(a) and conceded the Issue There IS no eVIdence, or suggestIOn, that complaInt #011-97 was wIthdrawn by the Umon and the Instant gnevance filed to harass the Employer or otherwIse abuse the gnevance process See Re Governing Council of the University of Toronto and Service Employees Union, Local 204 supra, Re Longyear Canada and Int I Association of Machinists, supra. Contra Re Weston Bakeries Ltd and Milk and Bread Drivers, Dairy Employees Caterers and Allied Employees Local 647 supra There IS no eVIdence that the Employer relIed on the fact that #011-97 dId not proceed to Stage 2 to ItS detnment. AccordIngly under the specIfic facts of thIS case, I 20 cannot conclude that thIS matter - the proper InterpretatIOn of ArtIcle 6 15(a) - has been resolved by the decIsIOn not to proceed wIth complaInt #011-97 or that ItS wIthdrawal or abandonment constItutes an Issue estoppel or res judicata For all of the reasons stated above, the Employer's prelImInary motIOn IS demed. Dated at Toronto thIS 3rd day of August, 2001 H'1.bnnt[}c RandI H. Abramsky Vice-Chair 21