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HomeMy WebLinkAboutUnion 10-01-15 IN THE MATTER OF AN ARBITRATION ~~_~"."~, ,..~".~..'.'_._~.'...."._'_.' .~__.~_.r"j j fI"-') ''''0 Ci ~" ~..." I t~"\\ \'<:,~- il ~'l It.P . I~ JpJ~ 1 8 2010 GRIEVANCE DEPAFiTMENT ~._~_~.._~~_~~~."J BETWEEN: SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY (THE COLLEGE) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF A UNION GRIEVANCE; OPSEU GRIEVANCE NO. 2006-0560-0002; OPSEU FILE NO. 656002; BOARD OF ARBITRA nON: HOWARD D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE JOHN PODMORE, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: Timothy P. Liznick, Counsel and others APPEARANCES FOR THE UNION: John Brewin, Counsel and others INTERIM A WARD 2 Mary Fisher is the Academic Chair in EEC which position she has held since May 2005 and reports to the Dean of the Faculty of Arts and Applied Science with responsibilities to oversee the delivery of programs in the School. Following the completion of her evidence in chief for the College, cross examination commenced on December 71h and at the continued hearing on December SIh, an objection was made by Mr. Liznick to the questions of Counsel for the Union concerning fornls of bundling of duties other than those set out in the Union's evidence in the context of how courses are put together. Mr. Brewin stated that he had an obligation to pose these questions to this witness as he would be calling reply evidence on these courses. The objection to this line of questioning is that the Union in the submission for the College, is splitting its case which should be prohibited by the Board. In essence, it was submitted that the Union having presented its evidence in chief and closed its case on its proposed amended positions 1-12 cannot be allowed to refer to something different than in chief and then to put in reply evidence. The Board received the submissions of Counsel with regard to this objection and reserved its decision without proceeding further at the hearing. This award deals only with that objection which is necessary prior to continuing with the evidence of this witness. The Board dealt with the Union's onus with regard to the issues arising under Article 2.02 of the collective agreement in its award dated January 30,2009, the substance of which need not be here repeated. 3 It is the submission for the College that the Union has dealt with its case In Chief and completed that evidence and cannot now adopt a scattered approach and expect the Co liege to prove negatives by suggesting some different bundling than put in chief and to . call reply evidence. The Union should not be allowed to change the bundles of courses which was proposed in their evidence in chief on which the Union relied and closed its case. A wholly different theory now put forth in cross examination of this witness cannot be permitted as such evidence if at all, should have been presented before closing its case. It is not permissible in this manner to rely on the cross examination of this witness and reply evidence to put in another case than the Union submitted in its evidence in chief. The objection relates to the tendering by the Union of material facts which were not addressed in its case in chief and should not be pel111itted by the Board to put in a different case than what was set out at the start of the evidence. The Union knew at that time that the bundles of courses and duties set out by the Union were challenged by the College and now the Union cannot be allowed either in cross examination or by reply evidence to change its case, the evidence of which on which the College relied. The Board therefore, in its submission, should deny the Union an opportunity to put in evidence the document proposed to be used by Counsel in his examination of this witness as part of the Union's case which had not been set out initially but is an entire different basis ofthejobs of work which was proposed by the Union. Reference in the College submission was made to the following authorities: 4 Re Allcock Laight & Westword Ltd. v. Patten. Bernard and Dynamic Displays Ltd. [1967] 1 O.R. 18 (c. A.); R. v. Krause [1986] 2 S.C.R. 466; Re Springer v. Aird & Berlis [2009] OJ. No, 1016 (S.C.J.); Re Motor Transport Industrial Relations Bureau of Ontario and General Truck Drivers' Union. Local 938 (1973), L.A.c. (2nd) 154 (Brown); Re British Columbia School District No. 39 (Vancouver) and Vancouver Teachers' Federation (1996)) 56 L.AC.(4Ih)8 (Taylor); Re Zehrs Markets Inc. and U.F.C.W" Local 175/633 (2001),63 C.L.AS. 50 (Lynk); Re St. Lawrence College and O.P.S.E.U, (May 18, 2005: 0.8. Shime, R. 0 )Connor and R. Kelly); Re Seneca College of Applied Arts and Technology and Ontario Public Service Employees Union (OPSEU Grc. 2006-0560- 0002), Unreported (January 30, 2009: H,D, Brown, S. Murray and J. Podmore); Re Goodyear Tire and Rubber Co. of Canada and United Rubber Workers, Local 232 (1976), 11 L.AC.(2IlU)161 (Adams); Re George Brown College and O.P.S.E.U. (Nancy Nickle Grc)) Unreported (May 25, 1990: H.D. Brown, R. Hubert and R. Herbert); Re Northwestern Hospital and O.N.A. (1993),29 C.L.A.S. 56S (Harris); Re Cam Operations Ltd. and Milk, Bread, Dairy Employees. Caterers and Allied Employees. Local 647 (199S)) 51 C.L.AS. 22 (Brown); Barbara Stevenson and Bank of Montreal (2009), 9S C.L.AS. 346 (Springate). It was submitted by Mr. Brewin that the document of reference in his cross examination was prepared with regard to timetable for a partial-load employee in order only to assist the witness and the Board in following the evidence in that regard and it included the addition ofteaching contact hours with reference to Exhibit 9 and the SWIF Forms. it was submitted that this document which he prepared was not referred for the purpose of 4 Re Allcock Laight & Westword Ltd. v. Patten. Bernard and Dynamic Displays Ltd. [1967] 1 O.R. IS (CA.); R. v. Krause [19S6] 2 S.CR. 466; Re Springer v. AiI'd & Berlis [2009] OJ. No. 1016 (S.CJ.); Re Motor Transport Industrial Relations Bureau of Ontario and General Truck Drivers' Union. Local 93S (1973), L.AC. (2nd) 154 (Brown); Re British Columbia School District No. 39 (Vancouver) and Vancouver Teachers' Federation (1996),56 L.AC.(4th)S (Taylor); Re Zehrs Markets Inc. and U.F.C.W" Local 175/633 (2001),63 C.L.AS. 50 (Lynk); Re St. Lawrence College and O.P.S.E.U. (May 18,2005: O.B. Shime, R. O'Connor and R. Kelly); Re Seneca College of Applied Arts and Technology and Ontario Public Service Employees Union (OPSEU Grc. 2006-0560- 0002), Unreported (January 30, 2009: H.D. Brown, S. Murray and J. Podmore); Re Goodyear Tire and Rubber Co. of Canada and United Rubber Workers, Local 232 (1976), 11 L.A.C.(211d)161 (Adams); Re George Brown College and O.P.S.E.U. (Nancy Nickle Grc), Unreported (May 25, 1990: B.D. Brown, R. Hubert and R. Herbert); Re Northwestern Hospital and O.N.A. (1993),29 CL.A.S. 56S (Harris); Re Cara Operations Ltd. and Milk, Bread, Dairy Employees. Caterers and Allied Employees, Local 647 (1998), 51 CL.A.S. 22 (Brown); Barbara Stevenson and Bank of Montreal (2009), 98 CL.A.S. 346 (Springate). It was submitted by Mr. Brewin that the document of reference in his cross examination was prepared with regard to timetable for a partial-load employee in order only to assist the witness and the Board in following the evidence in that regard and it included the addition of teaching contact hours with reference to Exhibit 9 and the SWJF Forms. It was submitted that this document which he prepared was not referred for the purpose of 5 proof of the information on the document which would be dealt with by other witnesses. While it is recognized that reply evidence might be challenged, at this point that is not the issue which relates only to the extent of cross examination of this witness. Exhibit 9 which includes timetables for pal1ial-Ioad employeesl can be examined through questions of this witness who can be asked for the production of S WIFS and the teaching contact hours to assess the accuracy of the assignments made as set out in that exhibit. While partial-load employees do not receive SWIFS, it is within the general latitude given in cross examination of witnesses to permit that line of questions. It is submitted that cross examination of this witness should not be thereby limited as referred in the College submissions. The Union will in this manner, show that under Article 2, the preference is to be given to "positions" and will argue that this could be a body of work divisible in the job. The Union is entitled to examine the witnesses of the College on that basis to argue of a viable set of conditions and to present that to the Board. While the Union's right to present new evidence in reply to the positions of the College may be challenged, that is not the issue at this point and would be unfair procedure to prevent these questions and the presentation of the document to be put to this witness in Counsel's cross examination. Reference was made to: The Law of Evidence in Canada Sopinka p.934: Re Surrey Memorial Hospital and Hospital Employees' Union 116 L.A.C.(4Ih)186 (McEwen). 6 Having considered the submissions for the parties, the Board finds that the issue to be determined is limited in the context of this objection to the scope of the cross- examination of Mary Fisher. In general, the limitation applied to cross-examination of witnesses is that of relevance to the issues in dispute in the case so that Counsel is not permitted to put extraneous matters to a witness which clearly have no bearing on such issues. Subject relevance subject to that restriction, as set out in The Law of Evidence publication, (supra), Counsel is given a wide latitude in the scope of cross examination of a witness and accordingly, there are: "very few restrictions placed on the questions that may be asked or the manner in which they may be put. Any question which is relevant to the substantive issues or to the witness' credibility is allowed." It is further stated that one of the purposes of cross-examination is: "to support the party's own case through the testimony of the opponent's witnesses". Further, the Board of Arbitration has discretion to deternline the procedure in its hearing of the case and to allow evidence whether admissible or not in Com1 Proceedings. While a Board of Arbitration in the interest of providing a fair hearing for the parties generally follows the accepted rules of evidence, its discretion in the 7 proceedings is not fettered in its consideration and detennination of the essential issues relevant to the grievance which here is Article 2.02. As indicated at this hearing with reference to the case references submitted, the decisions indicate clearly that a party is not permitted to split its case by improper reply evidence. In the present matter, however, while that issue has been submitted and argued, we find it is premature in that the essential issue for this Board is solely whether the questions concerning Exhibit 9 and the Union's proffered document can be refened to and submitted for this purpose to the witness in her cross-examination. It is our view that putting alternative positions as to courses and duties to this witness is not proof in and of itselfthat they constitute proper Full-Time positions not considered by the College. We conclude that the witness can be examined on whether other possibilities were considered by the College. Suggesting alternate configurations of courses is a test of the witnesses testimony given in chief. As stated, whether the Union may produce evidence in reply in this regard is not the criteria in determining the issue arising in the cross examination of this witness but is a separate matter of dispute which may require the Board's further attention. We find that to question the witness concerning the figuration of the bundles in evidence in chief to suggest errors, inconsistencies or to cast doubt on the methodology used by the witness in her response to the Union's twelve positions in its evidence is at least arguably relevant and falls within the wide scope given Counsel in cross examination o[witnesses. Further we find that the document prepared by Counsel for the 8 purposes of his cross examination of this witness while not being itself evidence, is simply a useful method to conduct his examination of the witness for her assistance and for reference to these proposed positions as well as to the timetables set out in Exhibit 9. It is our finding that to restrict this line of questioning in cross examination of this witness because of the apparent link to her examination in chief and the position of the College as to the Union's case in chief that Counsel should not be precluded from proceeding with this form of cross examination. It is noted that in so doing, this does not constitute proof to meet the onus of the Union as set out by the Board in its earlier decision. To call reply evidence to assert contrary or other positions to those the Union proposed in its evidence is a separate issue and will be subsequently dealt with if required. Arbitrator Springate touched on this issue in the Bank of Montreal award (supra) by stating at p. 49: "As noted above, counsel for the complaint suggested that the Bank is seeking to get around the rule against splitting its case by having raised issues during the complainant's cross-examination and by now trying to call reply evidence on those issues. The Bank will not be permitted to split its case in such a manner. A party cannot seek to prove a material fact through cross-examination of an opposing witness and if it does not receive the desired answer call a witness in reply to address the matter. .." The Board concludes that to deny Counsel for the Union the right to continue his cross examination of this witness in the manner indicated would be contrary to a fair 9 hearing as these questions fall within the ambit oflatitude as consistently allowed to Counsel in the cross examination of witnesses. In that context, the Board is persuaded to exercise its discretion in this procedure and allow the cross examination of this witness by Counsel of the Union to be continued as proposed by him. For these reasons, the objection ofthe College is denied with regard to the scope ofthe cross examination of Mary Fisher. The Board reselves its decision however as to the right of the Union to call reply evidence as indicated by Mr. Brewin may be sought to be produced. DATED AT OAKVILLE THIS /11 I,) DAY OF JANUARY, 2010. ~ HOWARD D. BROWN, CHAIR ........ eO\r--IA..IJ-> . q~ V\I L SHERrilL MURRAY, UNION NOM~ " (~ JOHN PODMORE, COLLEGE NOMINEE DISSENT I cannot join with the majority in this A ward for a number of reasons. In an earlier award this Board directed the Union to particularize it position with respect to the case it intended to call in the School of Early Childhood Education. The College had supplied the Union with all of the records necessary to prepare their case. In response to the Boards direction the Union prepared a binder of materials which included 12 specific groupings of courses taught by partial load faculty. The Union asserted that these 12 grouping of courses demonstrated" 12 positions" which could have been taught by new Full Time faculty. Ms. Fisher, the department Chair, clearly and articulately demonstrated that the "12 positions" could not become ] 2 new full time positions, under any circumstances, for a wide variety of reasons as now documented in our hearing record. Now, after the close of the Union's case and after Ms. Fisher has testified that the positions could not practically exist, the Union purports to cross examine Ms. Fisher on a wholly different groupings of courses to demonstrate that some positions other than the" 12 positions" which it identified pursuant to this Board's order may exist. To permit the Union to proceed in this manner deprives the College of its right to know the case that it has to meet prior to calling its case and therefore constitutes a denial of nannal justice. To now permit the Union to tender, whether in cross examination or in reply, some wholly different groupings of courses from the near limitless variety of groupings that are possible from the courses taught by partial load faculty will deprive the College of the oppornlllity to know the case that they have to respond to and to prepare that response. The majority accepts that one of the purposes of cross examination is to prove elements of ones own case through an opponents witnesses. On this basis the majority appear to accept that there is some propriety in the Union's current line of cross examination. This rational does not hold since the new groupings which the Union seeks to put to Ms. Fisher was never identified as part of the Union's case. What the Union is actually attempting to do is to prove a different case than that tendered in chief through an opponent's witness in cross examination. That "different case" is one that has never been previously disclosed to the Board, the College or its witness, notwithstanding the Board's earlier direction that the Union disclose its case at least 2 weeks prior to the commencement of the proceedings. Ms. Fisher made it abundantly clear in her examination in chief that she only examined the "12 positions" Identified by the Union. In sunmlary, I consider the majority decision to effectively invite the Union to substitute a wholly different case than that presented in chief after the close of its case in chief. The majority decision deprives the College and Ms. Fisher, as a witness, of their nann"al justice rights and wholly ignores the rules of evidence which are in place to safe guard a fair hearing. By exercising a discretion to receive evidence which does not conform to the rules of evidence, in circumstances where the opposite party is prejudiced as here, the majority decision in my respectful view, is patently unreasonable. I do note, parenthetically, that the Union would not be denied its rights to a fair hearing related to their 1110st recent line of questioning because the Union could easily have called the proffered evidence as part of its case in chief. I would have granted the College's objection. John Pod more College Nominee January 7, 2010