HomeMy WebLinkAboutPoirier 21-06-01IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act
BETWEEN:
NIAGARA COLLEGE
(“College”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 242
(“Union”)
(Grievance of T. Poirier)
_______________________________________________________________
SOLE ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Timothy Liznick, Hicks Morley Hamilton Stewart Storie LLP
On Behalf of the Union:
Keerthana Sivapatham, Goldblatt Partners LLP
Videoconference held May 31, 2021.
[1] I have been appointed to determine an individual grievance filed by Terry Poirier. This decision
addresses the Union’s motion to adjourn this matter pending resolution of a proceeding before the Ontario
Labour Relations Board (the “Board”). The College objects to the motion.
[2] By way of a grievance dated October 7, 2020, the Grievor alleges the College’s Human Resources
and Executive Team engaged in reprisal against the Grievor for performing his union functions and
representing union members. More specifically, the allegation arises in the context of two complaints
received by the College from two management employees alleging the Grievor engaged in harassment
against them. Upon receipt of the complaints, the College decided to initiate an investigation of the
complaints, and directed the Grievor to not interact with the two complainants until completion of the
investigation. As the Grievor is the Chief Steward for the Union, he complains this interfered with his
right to effectively represent union members, in violation of Article 3.02 of the collective agreement.
(Although the grievance references several other provisions of the collective agreement, the Union
clarified that it intends only to proceed with the allegation that this provision of the collective agreement
has been violated.)
[3] Article 3.02 provides:
The Colleges and the Union agree that there will be no intimidation,
discrimination, interference, restraint or coercion exercised or practiced by
either of them or their representatives or members because of an
employee’s membership or non-membership in the Union or because of an
employee’s activity or lack of activity in the Union or because of an
employee’s filing or not filing a grievance including participation in the
workload complaint system.
[4] On February 25, 2021, the Union filed an application with the Board, alleging the College has
violated the Labour Relations Act by engaging in “a series of hostile anti-union measures” (the
“Application”). The Union subsequently filed a request to amend the Application to allege a violation of
the Colleges Collective Bargaining Act, which is the applicable legislation for this bargaining relationship.
The facts alleged in the Application include reference to the College’s direction to the Grievor to not
interact with the two complainants until completion of the harassment investigation (see paragraphs 16
– 20, 36, 42, and 43). The College, in its response to the Application, has requested the Board adjourn
the proceedings until resolution of the grievance and arbitration process respecting all the matters set
out in the Application which have been grieved. The Board proceeding is in its infancy; it is still at the
stage of receiving submissions in respect of the Union’s request to amend its application.
[5] I have considered the submissions of both parties, and determined the adjournment should be
granted. In reaching this conclusion I have considered the factors referenced in Brown & Beatty: 3:2320
– Concurrent Proceedings, and the manner in which those principles have been applied in the caselaw
referenced by the parties.
[6] The issues raised by the grievance before me overlap completely with the issues raised by the
Application, since they both deal with issues relating to interference with the exercise of union rights in
the context of the College’s direction to the Grievor. However, the issues raised in the Application are
broader in scope, since the Application is based on a pattern of conduct that includes but extends beyond
the specific facts underlying the grievance. While there is no suggestion that I do not have jurisdiction or
expertise over the matters before me, it is fair to say that the Board clearly has the jurisdiction and
expertise to address the issues raised by the grievance in the broader context of other issues also raised
in the Application. As such, proceeding with the arbitration will not resolve the issues raised in the
Application or even likely materially shorten the proceedings in respect of the Application. Furthermore,
where a pattern of conduct is being alleged before the Board, one must be especially wary of the
possibility of inconsistent results in respect of just a portion of that alleged pattern. This militates against
the value of any efficiency achieved by proceeding with the arbitration even though it may well be
concluded sooner than the Board proceeding. On the other hand, resolution of the Application is likely
to be dispositive of the issues raised in the grievance, and thus there is a greater likelihood duplicate
proceedings will be avoided through an adjournment of the arbitration.
[7] I also note that the College’s direction to the Grievor that he is not to interact with the two
complainants is no longer in effect, since the harassment investigation has been completed. As such,
there is no need to be concerned about any ongoing liability issues in respect of the grievance.
[8] As for the fact that there are other arbitrations which involve other issues that are part of the
Application but are currently scheduled to proceed and which, up to this point, the Union has not sought
to adjourn, I am required to make my determination with respect to the Union’s motion based on the
specific facts of the case before me.
[9] The Union’s motion to adjourn the arbitration pending resolution of Application, or at least pending
resolution of the issues before me that are included in the Application, is granted.
Dated this 1st day of June, 2021.
“Jasbir Parmar”
_____________________________
JASBIR PARMAR, Sole Arbitrator