HomeMy WebLinkAbout1982-0070.Pelletier.82-07-21 Decisionr
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�t GRIEVANCE
SETTLEMENT
BOARD
7018,2
IN T {E hIATTER OF AN ARBITRATION
'jde'-
THE
e;THE CROWN EMPLOYEES COLLECTIVE BARGALtiING ACIP
Before
THE GRIEVANCE c ?'7I.EMENT 50AR^
Between: GLB::L (R. Pelletier)
ur:pti'.f
and ,
The Crown in Right of Ontario
(Liquor Control Board of Ontario).
...�'1G1C4 or
Before: 5-R.S. Prichard Fire Chair --an
I.J. Thomson Member
A.G. Stapleton -Member-
For the Gr1ev0r.* E. Shiiton Lennon, Co;;nsei
Golder, Levinson
For the Employer: R.3. Dmaj, CounsAi
Hicks, Morley, Hamiltan, 5*wwart L S or e
Jume 22, 1952
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INTERIM AWARD
In this case, the grievor. Roger Pelletier 3rieves :-at he .=_s
ur:sstly disciplined for wearing blue jeans to work at the :CBO s::.e
a:sere he is en,ployed. :r partic:iiar, he alleges -. gat he receive: .a
di.^iplinary warning in San; ;�, 1981. advising him t w. if he •ere to regr
bi.e jeans again he would 7eceive a suspension. e claiT: t'a: z
'I•r-ring was without lust ca --se,
At the outset of :ne hearing the employer entered
ob=:ction to the arbitraDlli of the :natter arra reque,ted wr:.,en rens.-is
on the issue of arbitrabilE~• prior to proceeding .c hear Vevide• _-e.
A::er hearing argument :n the Tissue of arbitr»hillty w:d on --,e
appropriateness of adjourrn:7g to ,prepare written reasons, *he oc_rd
concluded that we should ac ours to prepare these reasons. In addition. we
invited counsel to submit ;-ritten argument on one aspect c; the
be:ore us.
The employer`s preliminary objection cannot properly be
considered apart from the .actual and arbitral background .3 ;his cise.
herefore, in this award we have summarized the backgrounc :o the
prior to evaluating the legal arguments made by counsel.
The background :"4 the case as it was explained to :s yy cm. -set ;
an.: ds was set out in an earlier decision of this Board dear..* wi-, :-:e
sane issue (Sullivan, 57313: [-eather.,10) is as follows.
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]. In July 1974 the employer published, certain dress require-
ments including a provision requiring: "Trousers - clean
and pressed". The employer understood this proNbition to
encompass blue jeans.
'2. -!n April 1981 an employee, Mr. Pelletier, was directed
not to wear blue jeans at work, under threat of discip-
line. Mr. Pelletier filed a grievance. That grievance
was referred to arbitration but then -withdrawn on the
basis of a form of settlement reached between v�e
parties in the Board's mediation procedures, (Sea
Sullivan, pp. 2-3, supra
3. The cation considered the effect of that settlement to
be that employees would be, allowed to wear jeans at
work "provided that they were not torn or had patches",
as it was announced in the union newspaper. The
employer, however, had adifferent understanding of
the matter and on September 29, 1991 set out its
policy as follows:
Re: Store Ern la ees Dress Code
Despite a misunderstanding which has arisen recently,
the Boardls policy concerning personal dress as out-
llned in the Store Operating Manual..., namely trousers
or slacks clean and neatly pressedhas not changed.
This policy of course will apply to female attire, as
well. Jeans are not considered appropriate dress for
store employees, while on duty.
#. On September 29,1981,.Mr. Sullivan in his capacity as
union President flied a policy grievance concerning
the employer's "denial of right to wear blue jeans
and general enforcement of unreasonable rules about
Personal deportment". That grievance was referred to
arbitration and on February 4th, 1982 was heard by a
panel of the Grievance Settlement Board composed of
Mr. J.F.W. Weatherill (Chairman), Mr. L. Robinson and
Mr. G. Peckham (Members).
3. On January 9, 1992 Mr. Pelletier filed the grievance
what tris before us alleging that he had been unjustly
warned. The existence of this grievance was noted by
the panel chaired by Mr. Weatherlll although it was not
tj before that panel for decision (see Sullivan, pp. 2-3,
supra).
N
.f,
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]. In July 1974 the employer published, certain dress require-
ments including a provision requiring: "Trousers - clean
and pressed". The employer understood this proNbition to
encompass blue jeans.
'2. -!n April 1981 an employee, Mr. Pelletier, was directed
not to wear blue jeans at work, under threat of discip-
line. Mr. Pelletier filed a grievance. That grievance
was referred to arbitration but then -withdrawn on the
basis of a form of settlement reached between v�e
parties in the Board's mediation procedures, (Sea
Sullivan, pp. 2-3, supra
3. The cation considered the effect of that settlement to
be that employees would be, allowed to wear jeans at
work "provided that they were not torn or had patches",
as it was announced in the union newspaper. The
employer, however, had adifferent understanding of
the matter and on September 29, 1991 set out its
policy as follows:
Re: Store Ern la ees Dress Code
Despite a misunderstanding which has arisen recently,
the Boardls policy concerning personal dress as out-
llned in the Store Operating Manual..., namely trousers
or slacks clean and neatly pressedhas not changed.
This policy of course will apply to female attire, as
well. Jeans are not considered appropriate dress for
store employees, while on duty.
#. On September 29,1981,.Mr. Sullivan in his capacity as
union President flied a policy grievance concerning
the employer's "denial of right to wear blue jeans
and general enforcement of unreasonable rules about
Personal deportment". That grievance was referred to
arbitration and on February 4th, 1982 was heard by a
panel of the Grievance Settlement Board composed of
Mr. J.F.W. Weatherill (Chairman), Mr. L. Robinson and
Mr. G. Peckham (Members).
3. On January 9, 1992 Mr. Pelletier filed the grievance
what tris before us alleging that he had been unjustly
warned. The existence of this grievance was noted by
the panel chaired by Mr. Weatherlll although it was not
tj before that panel for decision (see Sullivan, pp. 2-3,
supra).
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6. On April 23,1982, the panel chaired by 44r. '%VeatherW
released its decision: on the Sullivan case. In that
decision the Board decided:
I. the grievance was a policy grievance; and
2. that the grievance did not allege a breach
Of any particular substantive {provision of
the collective agreement between the parties;
and
3. that the provisions of *rhe Crown Employees
Collective Sar ainin qct and the collective
agreement tween the parties do not contem-
plate prospective adjudication of rules
Promulgated pursuant to the management rights
provisions that do not violate specific pro-
vfsions of the coflective agreement; and
4. that as a result the matter was not arbitrable
in this form at this stage.
However the Board also stated:
I. that the issue of the reasonableness of the
ernployer,s rule against the wearing of blue
jeans by store employees would properly arise
in the individual circumstances of an Indivi-
dual grievance agalrsst a disciplinary act by
the employer. Indeed, the Board referred to
Mr. Pelletier% grievance as an example of this
type of case.
2. that an earlier decision of the Grievance
Settlement Board, McKay (265130) reached the
correct result but :for the wrong reason. in
that case, an employte had been warned that it
he did not stop certain POAtiCal activity he
might be dismissed from the public service.
The employee grieved the warning but resigned
from the public servlce prior to the arbitra-
tion hearing, The employer's preliminary
objections that the Hoard lacked jurisdiction
since the issue was moot was rejected by the
Board stating it was "of the opinion that we
do have jurisdiction to entertain the matter
On the basis that the union: has a legitimate
€ ` interest In questioning the propriety of the
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order given". - in Sullivan the Board said
of McKay; "that case was properly heard on the
merits providing as it did a particular direction
to a particular employee, and where what was in
substanfie a disciplinary decision had arisen.
M, (In light of the direct relevance and importance of :?ze Sullivan
case to the case before us, we have appended that decision to ours, :hus
Makin* it a part of our decision).
7. Following the release of Sullivan, the grievance before
us wa's scheduled for arbitration.
8. On June 22,1982; at the outset of the hearing in the
case before us, counsel for the employer stated that
anything said to the grievor in January, 1982 concern-
ing blue jeans should be construed as a clarification
Of the employarls policy and not as a disciplinary
warning. Counsel for the union suggested that the
comments were properly construed as a discipl4lary
warning.
9. - On June 22,1982, at the outset of the hearing before
tis, counsel for the employer also stated that.if the
comments made to the grievor were a disciplinary
warning, the employer was hereby withdrawing that
warning. As a result counsel took the position -
that the issue before us was moot and that we had rio
jurisdiction to proceed to gear and decide the merits
of the case.
l "
In considering the lmplica#ions of the factual background in the
absence of having heard any evidence, we have assumed that the evidence
will support the grievor's allegation that the employer's conduct in January,
1982 amounted to a disciplinary warning. That issue is, of course, a
question of fact. However, for purposes of determining whether or -not the
employer's decision to withdraw any warning deprives us of jurisdiction, it
is necessary for us to assume that there was a warning. if the hearing is
reconvened, the employer would then be in a position t^ dispute this
factual assumption on the basis of the evidence adduced.-
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In essence, then, the issue before us :s whet;ier .x not wt -.a:
jurisdic-ion to Near the grievor's allegation that he was u^justly wAr
against wearing blue jeans to work, This issue arises in the context of a
dispute between the employe; and union that has existed for at least a yea:
and a half concerning the propriety of wearing blue Jeans at
Furthermore, t :s individual grievance against a disciplinary act 6y -e
employer follows earlier findings by another panel of the Board:
1. that the propriety of the prohibition cannot be
challenged in a policy grievance, and
2. that the propriety of the rule would properly
be put in issue In the context of an individual
grievance disputing a disciplinary decision.
If the employer had not purported to withdraw the disciplinar%,
warning during -he preliminary arguments in the case before us, there can
be no doubt that we would have had jurisdiction. The case would be an
individual grievance and we would have had jurisdiction pursuant to :article
21.5 of the collective agreement and section 18(2)(c) of The Crown
Employees Collective 5w&aWmg act. Bath of these provisions ;rant
jurisdiction to the Board to hear and decide individual grievaices
concerning disciplinary acts.
Furthermore, absent the employer's withdrawal, there could
have been no question of res judicata arising from the Sullivan case. The
Sullivan case disposed of the jurisdictional issue: Could a policy grievance
brought by the :inion raise the propriety of the prohibition on blue jeans^
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The issue before tis woWd be simply.. Was the disciplinary warning
just cause? in that context, the propriety of the prohibi-,:oh on blue jez:-s
would be put it -issue as part of the analysis of just c4use. Rather t„ -an
hearing a ease that would be res judicata, it would, in our opinion, be a
case of just .he type that was contemplated in the Sullivan case as e
proper way to test the propriety of a rule. concerning a dress code,
which was not in any way considered on the merits 16 -Sullivan. Thus,
doctrine of res judicata has no application to the issues before us.
In addition, absent the employer's withdrawal, there could be --o
question of the union obtain! ng'indirectly_what it failed to obtain direc'::v
in the Sullivan case. The issue for us in an individual grievance would -e
the correctness of the disciplinary act in the particular circumstances.
The result of the case inay or may not have a more generalizeo effect.
The breadth and nature of the Impact of the individual case would depend
on the appropriate application of stare decIsis in ars arbitral context. This,
the employer's suggestion that the bringing of the individual grievance was
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somehow improper In light of Sullivan is i11 -founded.
These conclusions bring us to the only remaining Issue before
us; Does the employer's purported withdrawal of the warning during zhe
proceedings at the outset of the case deprive us of The jurisdiction -we
would otherwise have had? 'Ale received written submissions from counsel
for the union on this issue and'have considered those submissions i^ '.n
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addition to the oral arguments in reaching our decision below.
Before c.,nsidering the relevant law, is ,s :seal to pu; :n
relief exactly what accepting the e'mployer's posit:. -:r would mean. "ne
issue of blue jeans a: work is a contentious one for :.e parties. For a, e- a
. year the union has �een attempting :o put the prohibi on against blue ?ssn,s
in issue before the Board, The Board has rejecter :he policy grieva-ce
route. The Board ^:s suggested tha: an individual '37evance would be Ie
appropriate route. -Nn individual grievance is then :,rought and processed
through the grievance procedure, referred to arai:rs:ian and schec..;ed
before us. The issue is now ready to be tested. However, at the last
the employer atterr:pts to eliminate any "difference" between the pa -::es
by withdrawing the suspension. As a result the emloyer says t:7e mater
cannot be arbitrate-. It can only be arbitrated, the ernployer claims. :.I a
new individual grievance. Thus the grievor or some other employee -nus-,,
again wear blue jeans to work, attract discipline, grieve that discipline aria
have the matter referred to arbitration. On the employer's argurnen:. trte
employer could then once again withdraw the discipline and the pro_ess
would start once mare. The employees would, as a result, be deprived of
the opportunity to nave a determination of whether or riot discipline could
properly be imposer for wearing blue jeans to work. Furthermore, pe: zing
such a determination, the employees would forever be at risk in that i! they
failed to obey an oder to not wear blue jeans (whe-Mer the order is proper
or not), they woulc be guilty of the offence of insubordination quite L?art
from the issue of bice jeans itself.
.The well known dictum,'!o4e} now, grieve later" is ba:gid :.aper,
the efficacy of the grievance and arbitral process for disposing of
differences between the parties. If • the efficacy of that mechanism s
undermined by depriving the employees of an opportunity for an arbi:r:i
determination of the propriety of an employer's disciplinary decis;ons, the
foundation of the commitment to arbitration instead of self-help ::ould be
weakened.
In essence the difficulty ,with the employer's position - tha:
withdrawing the warning eliminates any "difference arisi::, fro:,-,
tne...applications administration or alleged contravention" of the c;-ilec.lve
agreement - is that it leaves unresolved the -core "difference" between the
grievor and the employer: Can the grievor properly be disci; ::reed fcr
wearing blue jeans to work? If the employer's'submissions were a_cepted.
'that Issue would remain in exactly the same form as It was nriy* to ti?is
hearing. Indeed, during the hearing, in response to a question from the
Vice -Chairman, counsel for the grievor answered the Board 'chat if the
employer's submission were accepted and a ne'w warning were issued ane
then grieved, the substantive issue at the subsequent arbitration would
remain exactly the same as the issue before us. In the meantine, however,
another year would have passed, the employees would have been deprive.
of a resolution on the merits for that time and the employees we -.;Id all Ibe
at risk with respect to a charge of insubordination. Such a res::lt makes
little sense. Fortunately, the arbitral jurisprudence that we :.ave been
referred to and a common sense reading of ,the collective agree-nent a z
the statute does not dictate such a result. Indeed, it supports di:T.issal o;
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the employer's position. These matters ace reviewed below.
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.The well known dictum,'!o4e} now, grieve later" is ba:gid :.aper,
the efficacy of the grievance and arbitral process for disposing of
differences between the parties. If • the efficacy of that mechanism s
undermined by depriving the employees of an opportunity for an arbi:r:i
determination of the propriety of an employer's disciplinary decis;ons, the
foundation of the commitment to arbitration instead of self-help ::ould be
weakened.
In essence the difficulty ,with the employer's position - tha:
withdrawing the warning eliminates any "difference arisi::, fro:,-,
tne...applications administration or alleged contravention" of the c;-ilec.lve
agreement - is that it leaves unresolved the -core "difference" between the
grievor and the employer: Can the grievor properly be disci; ::reed fcr
wearing blue jeans to work? If the employer's'submissions were a_cepted.
'that Issue would remain in exactly the same form as It was nriy* to ti?is
hearing. Indeed, during the hearing, in response to a question from the
Vice -Chairman, counsel for the grievor answered the Board 'chat if the
employer's submission were accepted and a ne'w warning were issued ane
then grieved, the substantive issue at the subsequent arbitration would
remain exactly the same as the issue before us. In the meantine, however,
another year would have passed, the employees would have been deprive.
of a resolution on the merits for that time and the employees we -.;Id all Ibe
at risk with respect to a charge of insubordination. Such a res::lt makes
little sense. Fortunately, the arbitral jurisprudence that we :.ave been
referred to and a common sense reading of ,the collective agree-nent a z
the statute does not dictate such a result. Indeed, it supports di:T.issal o;
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the employer's position. These matters ace reviewed below.
if, -
During the preliminary proceec;-zs, the employer sugoes;ad
that it should be free to decide which cases is j�- ishes to litigate before
Board and that it should be free to wit: _:;raw cases unilaterally --.y
withdrawing the penalty so as to deprive us of jurisdiction over cases
does not wish us to hear. Three comments on :h:s proposition are in order.
First, the grievance procedure is :,e place to dispose of casts
tha: the employer does not wish to litigate further. In this case, :-e
employer denied the grievor's position throughout the multi -step grievance
procedure. As a result, the matter was refer -ed to this Board and we were
properly selzed of it. At this stage, it is too late for the employer :a
express its concerns as to the suitability of :nis case and these facts for
litigating the dress code rules as they apply ;o :. particular individual.
Second, the employer's suggestion that the particular facts of
this case made it an inappropriate one tc serve as the test of the propriety
of the discipline for wearing blue jeans was no: persuasive. Once the issues
between the parties were made clear throug- the submissions of counsel,
we were not persuaded that :here was anything particular or peculiar about
the theory of the grievor's claim that would provide a rational basis for tie
employer's sudden decision to withdraw the warning so as to avoir a
hearing on the merits.
Third, once we were seized of *%^,e cases it is no longer open ;o
the employer to determine unilaterally the s ---stability of this case {ter
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arbitration. Ra::ger, the decision at this stage ----st be = mutual :,ne,
reflecting a genuine settlement of the en:;re dispL•;e betwden the par ties,
and not a unila,eral attempt to avoid aczressing :he mer;:s of the Yeal
issue in dispute between the grievor and Vhe employer by s' 'ing a position
of the dispute be ween the parties.
There are a number of reporter cases dealing wi :t the issue of
T
he arbitrability of a grievance where the employer has conceded specific
rellef, or where :7e issue for same other reason : as become moot. • The
seminal case is Re United Steelworkers and International Nickel Co. of
. Canada Ltd. (1972), 24 L.A.C. Sl (Weil'er). In that.case, the grievor grieved
a decision which :Wade his position'reduridant and sought monetary relief.
The company conceded the relief requested in the grievance of:et the first
day of hearing on the merits. The cornoanv obientpd to '.ha r-nnr�nr�nr9
arbitration of the matter, on the grounds that the mnatter was 'Facadernic",
and "the -Board gas without jurisdiction because It would grant no specific
relief to the ermaloyee" (page 36). The arbitration Board found that it had'
not lost jurisdic:ion because 'of the fac: that specific relief had aeeh'
granted. The Board stated:
Our conclusion, then, Is that there is no rule of law or
of this contract which bars ars Individual grievance for a
declaration that company conduct affecting him was illegal.
Moreover, there are good reasons why an individual may have
real interest in grieving for such a declaration and arbitra-
tion boards should not develop an "implied" rule excluding
such claims....Henceo whenan employee grieves asking for
specWc-retief the employer cannot deprive him of his right
to adjudication of the nature of the cent -act breach by con-
ceding the specific relief. For this reason also, the juris-
dictional objection must fail. (page 57)
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Since professor ;t'eiler's decision in LNCO, (supra),
have substantially followed this line of reasoning. Re Union Gas Co. of
Canada Ltd. and International Chemical Worker's Union, Local 74.1 (1973) 4
L.A.G. (2d) 132 (Rayner) deals with a -situation in which the grievor was
sent a cheque for the sick pay claim involved in her grievance
approximately one week before the scheduled date of arbitration. She did
not Cash the cheque, but the company took the position :nz: it
tendered the amount of her claim on her, and therefore the
"estopped" from proceeding with the grievance. The Arbitral:gin Soar_.
citing Prafessor Weiler hn INCO, found that:
Since the grievor might well have interest in deter-
mining her rights under the collective agreement, the
Payment of the cheque is not sufficient to openly
dispose of all matters In dispute of the parties. In
other words there is stili a "lis" in existence
varwcen the its acid there] ' this board should
determine the issue. page 134emphasis added
Arbitrator Weatherill took the same approach in.Re Imperial
Tobacco Products (Ontario) Ltd. and Tobacco Workers' International Union,
Local 323 (1975): 3 L.A.C. (2d) 383. In that case, the matter was heard z-
its ineri•.s, but before the Arbitration Board could render a decision, tie
union nominee died. A new Board with a new union noninee was
reconvened to hear the case again, since the two remaining memlLers of 11 --
Board were not able to come to an agreement. Before the secor;: hears _,
the company tendered on the grievor the amount claimed in the 5rievance,
and took the position that there was "no .utter remaining ;a
determined by the board" (page 389). The Arbitrations Board refuse4
accept that submission. The Board found instead :hat:
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This tendered payment of the relief asked is not, in
our view, tantamount to an "allowing" of the grievance.
:There is no suggestion that the company was prepared to
acknowledge the validity, iri principle, of the union's
position in this ease. If that had been the case, then
such acknowledgement, together with payment, might in-
deed be considered to constitute a complete answer to
the matter, and proceeding before this board might be
thought to be a pointless exercise which should not be
be allowed.
Having regard to the circumstances in which the
company's tender of payment has been made, however, we
can only conclude that the company has sought to avoid
the determination by this board of the merits of a case
of which it is already seized. While we agree that it
would be open to parties, by a true settlement, to
put -an end to this board's jurisdiction, it Is not,
in our view, open to one of the patties to avoid
in this way the outcome of a procedure already
under way. (page 394) (emphasis added)
The issue arose again at • INCO in Re INCO and United
Steelworkers, Local.6500 (1975), 9 L.A.C. (2d) 83 (Simmons), where the
grievor, at the time of the arbitration, had already been awarded the
position he sought. Since his grievance sought only tha: he be awarded the
position, and no other specific relief, the company took the position that
there was nothing left -to arbitrate. The arbitrator reviewed both
American and Canadian arbitration law on the issue, and ultimately
concluded- that it should hear the grievance. It se=.s out its reasons for
doing so at Borne length;
There are two basic reasons for our decision. One, at the
time of filing the grievance the grievor was directly
affected by the decision of the employer and had a valid
(as opposed .to a hypothetical) complaint because of same.
While he does not now seek the position for which he
claimed in his grievance, we are unable to conclude that
he no longer has any Interest In having the complaint
determined through arbitration.
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There has been no settlement of his complaint 2:�! se
and because of the evidence presented in this
connection it would be dangerous for this board to
conclude that his complaint had disappeared in all
respects. Secondly, it is this board's view that in
the absence of a settlement, ail valid (as that word
is intended to be interpreted) grievances'should be
resolved through arbitration. we are supported in
this result by the Ontario labour Relations Act,
R.S.O.1970, c. 232, s, 370) which reads:
370? Every collective agreement shall
provide for the firtia.l and binding settle -
Ment by arbitration, without stoppage of
work, of all difference;, between the
parties arising from the interpretation,
application, administration or allege
violation of the agreement, including any
question as to whether a matter is
arbitrable.
It appears to this board that unless it is absolutely
i clear that the difference that had existed has totally
disappeared a board of arbitration Should decide the
issue on its merits. In the Circumstances of this
case the board is not certain that the difference has
totally disappeared. (page 38) (emphasis added)
The decision reported as Re American Can of Canada Ltd, and
Sheet Metal Worker's InteMtlonal Association, Local 487 0975), L.A.C.
( (2d) 73 (O'Shea) might be viewed as taking a contrary approach. ; ;owever,
in that case it appears that the Unjoa was attempti-o to c.—nver t an
individ::al grievance into a policy grievance, an attempt the a-bitra:or
refused to permit. That is not the case before us. Here an inc:v.dual is
seeking clarification of whether or not he is permitted -o wear .i;.te jeans
at his store In his circumstances.
In summary, the cases appear to upnoid t^e arbitraDility of
grievances in circumstances like this cn two base5. =:-st. we:e -he
IF I
There has been no settlement of his complaint 2:�! se
and because of the evidence presented in this
connection it would be dangerous for this board to
conclude that his complaint had disappeared in all
respects. Secondly, it is this board's view that in
the absence of a settlement, ail valid (as that word
is intended to be interpreted) grievances'should be
resolved through arbitration. we are supported in
this result by the Ontario labour Relations Act,
R.S.O.1970, c. 232, s, 370) which reads:
370? Every collective agreement shall
provide for the firtia.l and binding settle -
Ment by arbitration, without stoppage of
work, of all difference;, between the
parties arising from the interpretation,
application, administration or allege
violation of the agreement, including any
question as to whether a matter is
arbitrable.
It appears to this board that unless it is absolutely
i clear that the difference that had existed has totally
disappeared a board of arbitration Should decide the
issue on its merits. In the Circumstances of this
case the board is not certain that the difference has
totally disappeared. (page 38) (emphasis added)
The decision reported as Re American Can of Canada Ltd, and
Sheet Metal Worker's InteMtlonal Association, Local 487 0975), L.A.C.
( (2d) 73 (O'Shea) might be viewed as taking a contrary approach. ; ;owever,
in that case it appears that the Unjoa was attempti-o to c.—nver t an
individ::al grievance into a policy grievance, an attempt the a-bitra:or
refused to permit. That is not the case before us. Here an inc:v.dual is
seeking clarification of whether or not he is permitted -o wear .i;.te jeans
at his store In his circumstances.
In summary, the cases appear to upnoid t^e arbitraDility of
grievances in circumstances like this cn two base5. =:-st. we:e -he
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underlying issue which was raised in :.,e grievance remains, .he arbi.ra.jon
board will be prepared to issue •a -declaration, even if specific relief is no
longer appropriate. Secondly, the more narrawiy, i# the relief gr anted by
the employer does not exhaust the relief asked for or available in a•
particular case, they, the fact that :°;e employer Sas granted some relief
will not deprive an arbitration board of jurisdiction to hear the merits of
the case. Both of these grounds independently support the arbitra5ility of
the case before us although, in light of Sullivan (57S/81), the second ground
is the more appropriate one to rely or.
A consideration of the collective agreement and The Crown
Employees Collective Bargaining Act similarly supports the propos! Zion
that the employer's withdrawal of ::he' 'warning does not deprive us of
jurisdiction to continue to adjudica:e the remaining Issues before us.
Amicle 21.5(e) of the collective agreement provides that in failing
settlement of an employee's grievance, the grievance may be submitted to
. this Board, and that a determination by this Board shall be final and
binding. Article 21.1(c) defines a grievance as "a difference arising from
the interpretation, application, administration, or alleged contravention of
the provisions of the agreement". Therefore, the grievor's complaint was a
grievance and remaiins a grievance despite the employer's withdrawal of
the warning as the grievor alleges that the employer's warning was a
contravention of the collective agreement. By withdrawing the warning
the employer has not conceded that allegation and thus the "difference",
thus the "grievance" remains, and thus our jurisdiction remains.
0
f
Vot ;ig in The Crown Employees Collective Bargaining Act is
lncons;i-ent wi: this conclusion since a- _xalicitly teserves any or.evance
rights arising ti:der the collective agretment. Section 18 provides: "t
additio- to any wt'her rights of grievance ::,der a cLllective agreement", an
ernplo%-e may ;rieve and have ar ..:ated cer'ain specific ;na-ters.
Theref.,re, our `Wrisdiction fount; unz,r the _:11lective agreement €s
uni;npa.'ed by :-�e .qct. Indeed, the sim—trity In s: -acture of this .act and
the On:ario Labour Relations Act with respect arbitra ion procedures
emphasizes the direct relevance of the bitral ;_rrisprudence referred to
above.
Counsel , for the union sum. --prized ren written submission by
stating: "It is :ne position of the union ::)at by w;:hdrawi,^.a the specific
oral wa; ning irn: used in this case with..: conceding that :ne grievor is in
fact en:ltled tc wear blue jeans to work .n his sura: the employer has not
resolved the issue raised by the grievance, and :hat the grievor is still
s
entitle- to a declaration as to his righ-s under the collective agreement".
In summary, we agree: there remains a grievance to be adjudicated
altltdu n the relief claimed no logger :.eed inc.f_de a withdrawal of the
warning. We have therefore asked the registrar .o schedule a continuation
of this :natter :or the first available rrn~.ially convenient date.
Before closing the interim award we should Note that counsel
for tt�e empio;-er indicated during h:: ?relienir.ry submissions :hat. he
intended to re. --y upon Re Metropolitan Toronto Board of Commissioners of
Police v, Metropolitan Tormto Police Association et a! E:,S1). 12L D.L.R.
Pr
A 17
WY 684 {Ont, C.A. and Banos of British Columbia v. Union of Bank
Employees, Local 2100 (unreported judgment of the British Columbia
51upreme Court date: March 9, 1982). Counsel agreed with the chairman
that these cases were relevant, if at all, to the ,merits of the case and i„
particular to the sc.-De of arbitral review of
the reasonableness of rules.
and that they did no: affect the preliminary issues. Therefore, we have of
considered the lmpac. of these cases In this award and we will want to hear
submissions at the next hearing before making any fl.ndings concerning
their relevance to the case before us.
DATED at Toronto t'-is'21st clay of July'. 1982.
n
1.R.S. Prichard Vice Chairman
S
I.J. homson Member
, A.G. Stapleton Memoer
/ib