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Home My WebLink About1980-0256.Cover.81-12-29IN THE .MATTER CF AN ARBITRATIGN Cnder THE CROiiN EXPLOY,OES COLLECT'IVE 3ARGAIXiNG ACT .3eEore .THE GRIEVANCE SETTLEXENT BOAR3 ‘S?tweer? : 3efsre: ~For the Grievor: .The Crowmin Xqht of Ontario (.Liq?lcr Control 3card 05 Ontario j '.E??.plcyer R. L. KtSnnedy vice C5aiman H. J. Laicg Xember J. McYanus Yenber E. Baker, General Secretary Ontario Liqcr Boards B~qzloyees' cnizn For the Emulover: R. J. ;_L Crmaj , Coilxel xicks, Xor le-f , IiaXlniltOn, StC?,VZrt .E Stori2 - 2- AWARD In a grievance dated March 28th, 1980, the griever challenged a one-day disciplinary suspension as being without just and sufficient cause. In the.grievanc.e and, pursuant to Article 21.3 of the Collective Agreement, the griever elected to be assisted by a representative of the Union and required that any action pertaining to the grievance should involve such representative. The matter proceeded through the grievance procedure and, by letter dated April 24th, 1980, the Ontario Liquor Boards Employees' Union (the "Union") advised this Board that,as the griever's representative,. they required a hearing. Subsequently, by letter from the Union directed to the Liquor Control Board of Ontario, the Union advised the Board that: "The Union is prepared to withdraw the following grievances based on the mediated settlement agreed to before Mr. Harry Waisglass." There followed in the letter a listing of, nine grievances, one of which was the grievance presently being considered by this Board. That letter concluded with the words: "We are still awaiting replies on Munrce, Dire, and Mehmeti." By letter dated July 24th, 1981 from the Registrar of this Board directed to the Liquor Control Board of Ontario, this Board confirmed that Notice had been given by the bntario Liquor Boards Employees' Union that the request for applications for hearing in severa~l matters had been withdrawn. There followed a listing of twenty-four grievances and, again, the grievance presently being considered by this Board was one of them. 1 .I : -.. By letter dated November 18th, 1981, the Union wrote to this Board in the following terms: We had felt that we had reached agreement in the Cover grievance, GSB # 256/80; however, what I now find is that certain 'facts presented 'to us about the grievor, have not be substantiated nor borne out. We would like to have~this case rescheduled before your Board. At the commencement of the hearing, counsel for the Employer made a preliminary objection to arbitrability of this grievance on the grounds that the settlement agreed to between the Employer and the duly authorized agent of the grievor constituted a final determination of the matter. The representative of the Union. requested that we proceed to hear and dispose of the grievance on its merits and,’ in his argument, he alleged that the Union was awaiting something from the Employer under the settlement and that it'was his intent in the letter of July 14th, 1981 to ,' indicate that the matter would be withdrawn when that was received. Neither party called any evidence and, therefore, the written record constitutes what is presently before this Board. Based on the written communications between the parties, we are satisfied that as of July 14th, 1981 a settlement of this grievance had been agreed to by the parties. We would note that in the actual letter of July 14th, 1981 from the Union, the expression is contained that the Union is prepared to withdraw the grievance. However, ~that letter also states affirmatively that there was a mediated settlement agreed to; and the final i : , !,I.~ I .: . - i.. f I -4-, sentence of that letter indicating that,replies are awaited on three other grievances would be inconsistent with the position argued by the Union now that the letter merely constituted an alternate intention to withdraw if certain things happened. It may further be noted that in the letter of the Union.to this Board dated November 18th, 1981, there is no reference to a failure on'the part of the Employer to do anything but rather an indication that the Union now considers the facts to be different than they were considered to be at the time of the settlement. Accordingly, and in the circumstances, we would conclude that a settlement of the grievance was reached between the Employer and the duly authorized representative of the qrievor, as a result of which, the grievance was withdrawn. There are numerous arbitral authorities to the effect that a grievance that is settled, withdrawn or abandoned cannot be the subject matter of a subsequent submission to arbitration. The rationale for such a rule is well expressed in Re City of Sudbury (1965) 15 L.A.C. 403 (Reville) wherein it is stated at pp. 403-4 as follows: , The authorities are legion that a Board of Arbitration has no jurisdiction to consider or, alternatively, that the grievorand his or her Union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a Board of Arbitration. Some of these cases ~proceed on the basis of estoppel and others on then i - o- .i 1 - 5 - overwhelming that a Board of Arbitration has no jurisdiction to entertain such a second grievance... The grievance procedure is designed to provide members of the bargaining unit and the union .with a method of orderly processing their respective grievances. In order to avoid the expense inherent in the arbitration process, the procedure provides for bona fide efforts, to be made by both the grievor and management to settle the dispute at various stages and at various levels. It follows, therefore., that if the grievor and/or the union actually or impliedly accept the decision of-management, , they should.not be allowed to have seconds thoughts on the matter and reprocess essentially the same grievance on a later date. If this were to be allowed, management would never know whether, in fact, its decision had been accepted by the individual grievor or the union representing him, and management could be plagued and harassed in whatwould be a plain abuse of the grievance procedure. The authority of the Union to enter into a binding settlement on behalf of a grievor is expressed in Re Continential Can Co. Of Canada Ltd. (~1975) 10 L.A.C. (2d) 35 (Weatherill) at page 37 in the following words: Here, a collective agreement is in effect: the parties to that agreement are the company and the trade~union. .Where those parties, acting through their regular officers, settle a matter which .has been processed through the grievance 'procedure, that settlement is binding, and requires no ratification to make it so. .The foregoing principles may be modified where there is a specific provision in a Statute or a Collective Agreement vesting the right to arbitrate in. an individual employee. On that aspect of the matter, reference may be made to The Crown Employees Collective Barqaining Act, R.S.O. 1980 c.108 at s.18(2) (c) which provides: In addition to any other rights of grievance under a collective agreement, an employee claiming that he has been disciplined orI dismissed or suspended from his employment without just cause may process such matter in accordance with,the grievance procedure provided in the collective agreement, and failing final determination under such proced~ure, the matter may be processed in accordance with the procedure for final determination applicable under s.19. That section has, in the past, b,een relied upon by this Board to permit a matter to proceed to arbitration at the instance of an employee.where, by reason of time limits or other procedural irregularities,, a 'grievance cannot otherwise proceed. The right under s.18(2) is considered to be in addition to~the rights under the collective agreement. Reference may be had to 'Re Keeling 45/78: Re Woods 224/79. We do not consider that the principle enunciated in the foregoing cases is relevant to the situation which is before us. The right under s.18 is a right in the employee to proceed'to arbitrationfailing a final. determination I under the reqular,arbitration procedures set out in the collective agreement. On the facts before us and on the arbitral authorities as to the effect of a settlement reached in the course of the grievance procedure, the grievor, in this case, has had the final determination of the issue under the grievance and arbitration procedure specified in the Collective Agreement. The situation therefore does not fall within the additional rights which may be. considered to be conferred by s.18 In the result, It is our objection is well founded and that 2) Cc). conclusion that the preliminary there is no jurisdiction in .‘. - 7 - this Board to proceed to hear the grievance 'on its merits. The grievance is therefore dismissed. DATED at Toronto this 29th day of December, 1981. Ross L. / Kennedy, 'iice Chai,qan "I concur" H. J. Lainq, Member "I concur" J. McManus. Member