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HomeMy WebLinkAboutUnion 07-11-19 Nov.29. 2007 2:00PM No.3531 p. 2 r In the Matter of an Arbitration Pursuant to the Ontario Labour Relations Act, 1995 Between: ONTARIO PUBLIC EMPLOYEES UNION, LOCAL 303 (The Union) -and- THE CORPORATION OF THE COUNTY OF SIMCOE (The Employer) Re: Union Grievance 2005-0303..0007 utIERIM AWAR_Q Paula Knopf- Arbitrator APPEARANCES: Emily Lawrence - Counsel for the Union Philip J. Wolfenden - Counsel for the Employer The hearing of this matter was held in Barrie, Ontario on February 14 and November 15,2007. Noy.29. 2007 2:00PM No.3531 p. 3 INTERIM AWARD 1. This case concerns a claim by the Union that the Employer scheduled and compensated the Continuing Medical Education programs (CMEs) contrary to the Collective Agreement and the parties' past practice. The first day of hearing was convened and then adjourned at the parties' request in February 2007 to allow them to arrange for and consider the production of the relevant documentation. On the second day of the hearing, in November 2007, the Employer raised a preliminary objection to the jurisdiction, asserting that there was no outstanding grievance for this arbitrator to consider. The Union objected to the Employer raising such an argument at this stage of the proceedings. The parties then requested an expedited interim ruling on the question of whether the Employer could raise this objection at this time. The parties indicated that if the Employer is allowed to present Its preliminary objection, they would then proceed to call evidence on another date regarding the question of whether there is a "Jive grievance outstanding" and/or whether the Employer has waived any right to object to its proceeding to arbitration. AccordinglYl this Interim Award deals solely with the narrow question of the Employer's ability to raise this jurisdictional objection at this stage of the proceedings. For the reasons that follow, I have declared that the preliminary objection can be presented. 2. !n order to understand the issue, some context is required. However, it must be noted that there is disagreement between the parties about the evolution of this dispute. They agreed to present this Interim issue on the basis of documentation alone to give a context to their submissions. Because there may be a need to detennine the facts regarding the progress of the original grievance, from Its tiling to the date of these hearings, nothing in this Interim Award should be considered as a determination of any disputed facts. 1 Noy.29. 2007 2:00PM No.3531 p. 4 3. The chronology is relevant and not in dispute. The grievance referred to this arbitrator was filed October 16, 2005. On December 15, the Union filed "Grievance Withdrawal" fonns referring to this grievance as well as four other related grievances. Between December and March, the parties continued to discuss the issues relating to these grievances. In March 2006, the Union wrote to the Employer asserting that It had qresiled" from the "agreementb that had lead to the wIthdrawal of the grievances and that the Union was therefore uresurrectinglt the grievances and "forwarding" them through the grievance process. Documents show that the parties continued to discuss their differences regarding the CMEs. However, the Union referred this grievance to arbitration on April 27, 2006. The Employer engaged in the selection of an arbitrator and the scheduling of the hearing{s). The first day of hearing was Febrosry 14, 2007. The Employer first raised its objection to the arbitrabillty of this matter in September 2007. 4. At this stage it should also be noted that the four other related grievances that were ''withdrawn'' in December 2006 were referred to other arbitrators who are dealing with similar, if riot identical, issues. The facts and circumstances of those grievances, their withdrawals, their referrals to arbitratIon and the discussions between the parties concerning their evolution are not before me. 5. The preliminary objection that must be determined In this Interim Award is simply whether the Employer may be allowed to raise its objection to jurisdiction at this stage of the proceedings. The essence of the Objection is the assertion that there is no IIlive" or existing grievance to found the jurisdiction of this arbitrator as a result of the Union's withdrawal of its grievance on December 15, 2005. The Union's answer to that assertion Is that the grievance was "resurrected" and . considered "live" by the parties $0 that it stiU exists to form the basrs of this arbitrator's jurisdiction over the dispute. 2 Noy.29. 2007 2:01PM No.3531 p. 5 The Submissions of the Union 6. Counsel for the Union argues that the Employer should not be allowed to raise a jurisdictional objection at this stage of the proceedings. The Union calls the Employer's position "absurd", arguing that the Employer knew that the issues raised in this grievance were still in dispute, that the Employer never objected to the "resurrection" of the grievance when the Union indicated that the Issues concerning the grievances had not been resolved and that the Employer had never raised any objections to the appointment of an arbitrator or the convening of these proceedings until a short time before the second day of hearing. The Union asserts that all the Empfoyer's actions should be viewed as an "acknowledgmenf' that there was an ongoing dispute and a "live" grievance that should be resolved by arbitration. 7. The Union also stressed that it has taken the position with the Employer that it views this grievance as a .'continuing grievance" concerning all the CMEs since the filing of the grievance and, as such, it has not filed similar grievances for all the other CMEs that were held every Spring and Fall thereafter. The Employer disputes this characterization of the nature of the grievance. However, the Union maintains that it has put the Employer on notice of its characterization and that the Union would have filed new grievances tf it had been aware of the jurisdictional challenge to arbitrability over the original grievance. Therefore, the Union also asserts that the Employer is now estopped from raising the preliminary objection because the Union has relied on the foregoing facts to its detriment and that it is prepared to call evidence to establish that it refrained from filing more grievances despite the continuing dispute about the scheduling of the CMEs. 8. The Union asserts that It should be abundantly clear that there is an ongoing dispute that is captured by the grievance that concerns the scheduling of CMEs. It was said that there may be an issue of "arbitrability" arising out of the issue of whether there was a true withdrawal of the grievance in December 2005 3 Noy.29. 2007 2:01PM No.3531 p. 6 and/or whether it could be qresurrected" in March 2006. That was said to be different from the question of "jurisdiction" that the Employer is now trying to assert. It was asserted that this arbitrator does have jurisdiction to detennine whether the grievance is arbitrable or not It was also asserted that the history of this dispute should be viewed as creating a potentlal'JproceduraJ" rather than substantive defect to arbitrability. But in any event, it was stressed that it would be unfair and "poor labour relations" to allow the Employer to assert Its preliminary objection to jurisdiction at this late stage of the process. Submissions of the Employer 9. The Employer is seeking to assert the right to argue that there is no existing grievance to form the basis of this arbitrator's jurisdiction in this matter. Counsel for the Employer argues that the background facts and the efforts of the parties to resolve the problems surrounding the CMEs are irrelevant to the question of whether a grievance exists to be determined at arbitration. 10. The Employer also responded to the Union's allegations that ft is engaging in "poor labour relations" by raising this objection at this time. The Employer submitted that while issues of "labour relations" are irrelevant to the detennination of arbitrabilityj the Union's attempt to Ilresurrect" withdrawn grievances should instead be considered the example of "poor labour relations" in this case. It was said that a "bad precedent" would be set if unions were allowed to bring back grievances that they had represented to be withdrawn. It was said that this would "shut the door" to discussions that are aimed at resolving workplace disputes. 11. Turning to the substance of the Employer's jurisdictional objection, it was argued that once the Union filed the withdrawal of this grievance, the very foundation that gives rise to an arbitrator's jurisdiction ceased to exist. It was said that without the existence of a grievance, there is nothing for an arbitrator to determine. The Employer acknowledges that the Union is asserting that the 4 Noy.29. 2007 2:01PM No.3531 p. 7 Employer waived its right to challenge jurisdiction by its conduct and representations. It was submitted that that issue can and should be dealt with once the Employer's right to challenge jurisdiction at this stage is determined. 12. The Employer also pointed out that the documentation relied upon by the parties puts in question the Union's assertion that the continuing existence or "life" of this grievance was ever explicitly or indirectly acknowledged by the Employer. Further, the Employer stresses that nothing in the documentation between these "sophisticated and experienced" parties suggests that there were any conditions or provisos regarding the Union's withdrawal of this grievance. Further, the Employer points out that there h~ve been several more CMEs since the one that triggered the grievance and that no further grievances have been filed. The Employer asserts that, contrary to the Union's characterization of their dispute, this should not be viewed as a ~jcontinuing grievance", and that af! the facts should lead to the conclusion that no existing grievance remains to be determined. 13. The Employer asserts the right to raise this Jurisdictional challenge and asserts that, as such, it can be raised at any time in the proceedings. The Decision 14. The only question to determine at this stage is whether the Employer will be allowed to present its jurisdictional challenge to my hearing this case. If the Employer is allowed to proceed with the challenge, the hearing will then focus on the merits of the challenge as well as the Union's assertion that the Employer has waived its right to assert the challenge. In other words, even jf the Employer wins the right to challenge jurisdiction, there wllf have to be a hearing into the question of whether the Employer has waived that same right. That interim hearing will also focus on the question of whether the Union's withdrawal ofthe grievance is binding, whether it was an actual withdrawal and/or whether the grievance has been 5 Nov.29. 2007 2:01PM No.3531 p. 8 . . . properly "resurrected'I, If the Employer's right to challenge arbitrability is rejected, the hearing would proceed directly to the merits of the grievance. 15. An arbitrator under the Labour Relations Act has the power and the responsibility of determining a dispute under the Collective Agreement and to determine if a matter is arbitrable. The Employer is correct in the assertion that an arbitrator's jurisdiction is founded upon the existence of a grievance. That grievance defines the dispute, its nature and the extent of the arbitrator's jurisdiction. The right to challenge jurisdiction is also fundamental. It is very unfortunate when the question of jurisdiction Is raised fate in the proceedings, after much time and money have been spent that might have been conserved if the jurisdictional challenge turns out to be valid. Further, if the challenge is raised earlier, this allows the parties to reconsider their positions and options for alternative solutions or avenues for redress. In a perfect world, one side will recognize and assert a challenge to jurisdiction at the first possible moment. But this is not a perfect world and jurisdictional challenges are sometimes only apparent to counsel once all the.facts and documentation are assembled. 16. In the case at hand, the jurisdictional challenge has been raised long after the referral to arbitration and well after the first day of these proceedings. The delay is unfortunate for all concerned and it has deflected the parties away from their need to resolve the problems that gave rise to this litigation. However, nothing in the facts or the law prevents the Employer from raising this Issue at this stage. Whether the challenge is valid, or whether the Employer has waived its right to assert this challenge, can only be determined on the basis of evidence if the parties choose to proceed along that route. 17. Both parties accuse each other of exhibiting poor labour relations regarding their handling of these issues. Without knowing the facts surrounding the processing of this issue, it is impossible and inappropriate to comment on those allegations. Howeverl it is apparent that there is a fundamental difficUlty between 6 I I I Nov.29. 2007 2:01PM No.3531 p. 9 the parties. They are mired in expensive litigation and they even disagree about the implications of any potential outcomes. It seems that they are focusing their energies on every detail except the very issues that led to this dispute in the first place. 18. With that saidl I declare that the Employer has the right to argue its challenge to arbitral jurisdiction over this grievance. I remain seized to deal with the questions of whether the challenge is valid, whether the grievance is arbitrable, whether the Employer can or has waived any of its rights and over all other related matters, including the merits of this dispute, if the dispute is arbitrable. The case shall resume for hearing at the request of either party. Dated at Toronto this 19th day of November, 2007. 7