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HomeMy WebLinkAboutUnion 18-11-07 IN THE MATTER OF AN ARBITRATION BETWEEN: PEEL DISTRICT SCHOOL BOARD and OPSEU BEFORE: SUSAN L. STEWART – ARBITRATOR POLICY AND GROUP GRIEVANCES APPEARANCES FOR THE UNION: T. HANNIGAN, COUNSEL FOR THE EMPLOYER: P. GANNON, COUNSEL THE HEARING IN THIS MATTER WAS HELD IN TORONTO, ONTARIO ON NOVEMBER 2, 2018 2 AWARD 1. There are two sets of grievances before me, all relating to the work of technology support services for schools of the Peel District School Board, performed by OPSEU represented employees. The first set of grievances, arising in 2015 and 2016, claim that certain positions should have been posted. It is the Union’s claim that it lost two positions in violation of provisions of the Collective Agreement at that time. It is seeking a declaration as well as the posting of two additional positions. The second set of grievances, policy and group, followed a change in the basis of assignment, with a January, 2018, transition to a dispatch model based on the division of the District into quadrants rather than school groupings. The Union seeks a reversion to the former model of work assignment. While there is a dispute between the parties as to the precise percentage, the majority of employees providing technology support services are signatories to the group grievances. There is no objection to my jurisdiction to hear and determine the grievances. 2. The Employer raised the issue of whether all of the employees in the bargaining unit who provide technology support services ought to be accorded the right to participate in this proceeding, with notice issuing accordingly. Mr. Gannon suggests that there is potential for the disruption of the status quo of their employment arrangements if the Union is successful and that accordingly, the right to participate in these 3 proceedings should ensue. The Union is of the view that there is no requirement for notice to be provided, as the case before me does not properly fall within the category of cases where there is a right to participate in the proceeding. This award deals only with that issue. 3. In the ordinary course, the parties to a labour arbitration, with the associated rights to call evidence and make submissions, are the union and the employer. Individual employees, whether grievors or not, will often be affected, to various degrees and in various ways, by the outcome of arbitration awards. However, the union is the representative of the employees of a bargaining unit and there is, in general, no entitlement to separate representation on the part of individuals in a bargaining unit. 4. There are certain exceptions to the foregoing rule. In the seminal case of Hoogendoorn v, Greening Metal Products & Screening Equipment Co. [1968] S.C.R. 30, the majority of the Supreme Court of Canada determined that principles of natural justice required that an individual be given notice of and the opportunity to participate in a proceeding in which the union and employer jointly sought the individual’s dismissal. In the Ontario Court of Appeal decision in Re Bradley et al and Ottawa Professional Firefighters Association et al [1967] 2 O.R. 311 where the union was seeking displacement of employees in the context of 4 promotion grievances, the Court similarly required notice and an opportunity to participate. 5. While these decisions provide a foundation for the current arbitral approach to notice to affected parties, their effect has been limited, given the need for the principle derived from these decisions to co-exist with the principle that a union is the sole representative of employee interests at arbitration and has the exclusive right to represent those interests in the ordinary course. Thus in Compass Group Canada v. H.E.U. (2010), 185 L.A.C. (4th) 66 (Ready), involving a claim by the union that the employer had improperly limited the term of employment or improperly terminated temporary foreign workers, the arbitrator rejected the employer’s submission that all temporary foreign workers should be entitled to notice and to participate in the proceedings. After referring to the decisions in Hoogendoorn and Bradley, at paragraph 10 of that award the arbitrator states: This is not a case where the Union seeks a remedy which will provide an advantage to one or more employees at the expense of a different employee or group of employees. The Union simply seeks an interpretation of the Collective Agree- ment which will be binding upon all members of the bargain- ing unit. Similar examples of instances where arbitrators have rejected arguments relating to standing are contained in Brown and Beatty, Canadian Labour Arbitration, 3:1210. 5 6. While, as Mr. Gannon observes, there is certainly potential for certain changes to take place that may affect employees who may have ordered their personal lives to align with the current method of work assignment arising in connection with the second set of grievances, I am unable to accept the proposition that the circumstances here should compel the conclusion that all employees are entitled to participate in this proceeding. I note parenthetically that the prospect for changes arising from the first set of grievances is less apparent. However, and in any event, this is not a case where the Union is seeking to provide an advantage to one or more employees to the detriment of other employees. Rather, it is seeking an interpretation of the Collective Agreement. I agree with Mr. Hannigan’s submission that the Compass Group case is analogous to the case before me. If the Union’s position on the merits of the grievances prevails and there are changes to the present arrangements that will result, those changes will apply to all members of the bargaining unit. This is not an unusual scenario. In my view, if the position of the Employer were to prevail, virtually every arbitration proceeding with consequences for a part or the whole of a bargaining unit would necessitate notice and the right to participate in the arbitration proceeding. That result would undermine the Union’s representation rights in a fundamental manner, a manner that is inconsistent with the premise of exclusive union representation. 6 7. As noted at the outset, disputes arising under a collective agreement ordinarily proceed to arbitration between the parties to that collective agreement. An exception is properly made where an issue of natural justice arises. I am not persuaded that any such issue arises in this instance. Accordingly, the Employer’s motion is rejected. This matter will proceed as scheduled. Dated at Toronto, this 7th day of November, 2018 _____________________ S.L. Stewart - Arbitrator