GSB#1328/00

UNION#OLB060/99

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Liquor Boards Employees’ Union

(Cheng)

Grievor

-and-

The Crown in Right of Ontario

(Liquor Control Board of Ontario)

Employer

BEFORE Randi H. Abramsky Vice-Chair

FOR THE GRIEVOR Craig Flood

Counsel

Koskie Minsky

Barristers & Solicitors

FOR THE EMPLOYER Allison Renton

Counsel, Legal Services

Liquor Control Board of Ontario

HEARING March 7, 2001; June 28, 2001.

AWARD

The Liquor Control Board of Ontario (LCBO or Employer) has raised a preliminary objection to the jurisdiction of this Board to hear the grievance in this matter. Specifically, the LCBO asserts that because the grievor raised the same issue in a prior grievance in 1997, which was not pursued, the grievor and Union may not seek to arbitrate the same issue in a 1999 grievance. This Award addresses this preliminary objection.

Facts

On January 28, 1999, the grievor, James Cheng, filed a written grievance alleging a violation of “Article 6.15(a) of the collective agreement and any other applicable clauses.” Article 6.15 provides as follows:

(a) An employee shall receive a shift premium of one dollar ($1.00) per hour for all hours worked between 6:00 p.m. and 7:00 a.m. Where more than fifty percent (50%) of the hours, inclusive of lunch and rest periods, fall within this period the premium shall be paid for all hours worked.

(b) Shift premium shall not be considered as part of an employee’s basic hourly rate.

According to Mr. Cheng, this grievance concerns overtime shifts that he worked around Christmas of 1998.

On January 28, 1997, exactly two years earlier, Mr. Cheng had filed a Stage 1 complaint also alleging a violation of Article 6.15 (a). That complaint, which was written for him by a co-worker, states as follows:

On both Jan 20/97 & Jan 24/97, worked overtime on the hours of 16:00 to 20:00. According to Article 6.15(a) of collective agreement, shift premiums are owing yet were not credited.

The “settlement desired” was “applicable shift premiums for above dates & hours in question.” The form, entitled “1^st STAGE GRIEVANCE REPORT” was an employer form used to record Stage 1 complaints. The Employer gave it the number “D.W.#011-97.”

According to Mr. Cheng, the written form was given to management and he was later informed that his complaint had been denied. The written response on the form, dated February 4, 1997, states “Denied due to shift premium not paid for overtime” and appears to be signed by the grievor’s manager, Mr. Surgay Nikulin, Manager of Business Automation.

On March 19, 1997, Mark Wagner, then Human Resources Advisor – Durham Warehouse, met with Mr. Cheng and Union Representative James to discuss a number of Mr. Cheng’s outstanding grievances. Mr. Wagner testified that the meeting was set up to see if the issues could be resolved and that he went through them, one at a time.

As to complaint #011-97, Mr. Wagner testified that he “reiterated the Employer’s stance regarding shift premium on overtime” – “that the Employer does not pay shift premium on overtime” – and that the grievance was dropped at that point. He did not recall his exact words, or the Union’s response – only that the grievance was dropped and that it would not be proceeding. His understanding was that the Employer’s position was being accepted and it would not be further challenged by going to the next stage.

Mr. Wagner acknowledged, on cross-examination, that there were no minutes of settlement concerning complaint #011-97 and that he received no document from either the Union or Mr. Cheng stating that they agreed to the Employer’s position regarding the shift premium or that there would be no further grievances on the issue. He could not recall Mr. James’ stating at the meeting that he agreed to the Employer’s position, or words to that effect.

Seven other complaints filed by Mr. Cheng were settled at the March 19, 1997 meeting and formal Minutes of Settlement were agreed to on that date. According to Mr. Cheng, these grievances related to other overtime claims. According to the Minutes of Settlement, Mr. Cheng was paid 25 hours at time-and-one-half his normal pay rate and the seven listed complaints were “withdrawn, not to be refiled.” Copies of the Minutes were distributed to “OBLEU”, “Coordinator, Human Resources Services”, “Staff Relations”, and “Department Director”.

Mr. Cheng recalled meeting with Mr. Wagner and Mr. James on March 19, 1997 but he did not recall specifically discussing complaint #011-97. His recollection was that he met initially with Mr. James who urged him to drop this and a number of other matters in order to receive payment for the larger overtime claim. He testified that he told Mr. Wagner, at the start of the meeting, that he was dropping all of the other grievances and was just proceeding with the overtime one. He stated that he had made up his mind to forget about the other ones and “get the big one, the overtime” claim. He acknowledged, on cross-examination, that his 1997 complaint and the 1999 grievance involved “the same issue”, i.e., that he was not paid shift premium.

Article 27, Grievance Procedure, provides, in pertinent part, as follows:

27.1 Definitions

(c) “Grievance” means a difference arising from the interpretation, application, administration or alleged contravention of the provisions of this Agreement.

27.3 STAGE 1 (Complaint Stage)

(a)(I) An employee who has a complaint or a difference shall discuss the complaint or difference with his/her supervisor, as designated by the Employer, within ten (10) days of the employee first becoming aware of the circumstances giving rise to the complaint or difference.

(ii) Unless otherwise agreed between the employee and his/her supervisor, a meeting in respect of an employee’s complaint shall only be attended by the employee and his/her supervisor.

(b) The supervisor shall consider the complaint or difference and give his/her response to the employee within ten (10) days of the discussion.

(d) If the complaint or difference is not satisfactorily resolved by the supervisor, it may be processed within an additional ten (10) days from the date of the supervisor’s response or the expiration of the time limits set out in (b) above, in the following manner.

27.4 STAGE 2

(a) The employee may file a grievance in writing with his/her supervisor specifying the clause or clauses in this Agreement alleged to have been violated.

(b) The supervisor shall complete an investigation of the grievance and provide the grievor with his/her written decision within fifteen (15) days of receiving the grievance. The investigation may include meeting with the employee affording him/her an opportunity to be heard.

27. 5 STAGE 3

(a) (I) If the grievance is not resolved under Article 27.4, the employee may submit the grievance to the Chair or designee within five (5) days of the date that he/she received the decision under Article 27.4.

(ii) In the event that no decision in writing is received in accordance with the specified time limits in Article 27.4, the grievor ma submit the grievance to the Chair or designee within five (5) days of the date that the supervisor was required to have his/her decision in writing in accordance with Article 27.4.

27. 6 STAGE 4

If the grievor is not satisfied with the decision of the Chair or designee or if a decision is not received within the specified time limits, the grievor may apply to the Crown Employee Grievance Settlement Board for a hearing go the grievance within five (5) days of the date he/she received the decision or within five (5) days of the expiration of the specified time limit for receiving a decision.

27.8 The Union shall have the right to lodge a grievance based on a difference arising directly with the Employer. However, such a grievance shall not include any matter upon which an employee is personally entitled to grieve. Such grievance shall first be presented, in writing, to the Employer within twenty (2) days of the circumstances giving rise to the grievance. ….

27.12 Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.

Arguments of the Parties

A. The Employer

The Employer contends that Mr. Cheng’s January 1999 grievance is inarbitrable because he did not pursue his January 1997 grievance on the same issue. It submits that when the matter was discussed between the parties in March 1997, the Employer reiterated its position that it does not pay shift premium on overtime hours and that the matter was then dropped. It asserts that there is no evidence that the matter was dropped on a “without prejudice” basis, and that the Employer, quite properly, understood the Union’s action to be an acceptance of its position on the issue without further challenge. Consequently, it argues that it had a right to expect finality and certainty on the issue, and that the grievor should not be allowed to raise this issue again.

In support of its contention the Employer relies on Ontario Liquor Boards Employees Union (Lariviere) and Liquor Control Board of Ontario, GSB No. 1375/99 (Harris, Vice-Chair). It submits that Lariviere holds that withdrawal of a grievance either estops the union from continuing with another grievance or renders it res judicata when three conditions are met: (1) the matter must be between the same parties; (2) the matter must be identical in both proceedings; and (3) the matter must have been brought for the same object. The Employer submits that all three conditions are met in this case. Specifically, it asserts that the grievor, the Union and the Employer are the same; the matter is identical because both claims assert a violation of Article 6.15(a); and the object of both claims are the same – to receive payment of shift premium for overtime hours. It submits that under Lariviere, “a party may not bring forward another complaint over the same fact situation after that fact situation has been settled, abandoned, withdrawn, or finally determined by a competent tribunal.”

The Employer further relies on Re Canadian Union of Public Employees, Local 207 and City of Sudbury (1965), 1965 CanLII 991 (ON LA), 15 L.A.C. 403 (Reville) in which the board of arbitration determined that two grievances, despite being worded differently, involved the same issue and that the second one could not proceed. In that case, the board cited to U.A.W., Local 456 and Mueller Ltd. (1961), 12 L.A.C. 131 (Reville), which set out the rationale for the principle that a party is barred and estopped from processing a grievance which is identical to a former grievance and is either withdrawn, abandoned or settled, or determined by a board of arbitration, at p. 404:

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 second thoughts on the matter and re-process essentially the same grievance at a later date. If there 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 what would be a plain abuse of the grievance procedure.

The Employer contends that the same rationale applies in this matter.

The Employer further relies on Re Weston Bakeries Ltd. (Kingston) and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local Union 647 (1998), 1998 CanLII 30035 (ON LA), 76 L.A.C. (4^th) 258 (Simmons). In that case, the arbitrator held that the “arbitral rule of abandonment” rendered a subsequent grievance on “the same subject matter” and seeking an identical remedy as in an earlier grievance that had been abandoned inarbitrable. In part, the arbitrator based his decision by “taking into consideration the purpose of the rule…which, in my view, was established to deal precisely with the situations which are before me.” (76 L.A.C. (4^th) at 267).

The Employer further contends that to the extent the testimony of Mr. Wagner and Mr. Cheng differ about discussions which took place during the March 19, 1997 meeting, an adverse inference should be drawn against the Union for its failure to call Mr. James, the Union representative present at that meeting, as a witness. In support of its position, it cites to Re Canada Post Corp. and Canadian Union of Postal Workers (Seymour) (1992), 1992 CanLII 14471 (CA LA), 25 L.A.C. (4^th) 137 (Shime). It submits that based on the evidence presented Mr. Wagner clearly told the Union about its position on the payment of shift premium for overtime hours and the grievance was then dropped.

Finally, in the Employer’s view, the complaint submitted by Mr. Cheng in January 1997 was clearly a “grievance” as defined in Article 27.1 of the collective agreement. The term “grievance” is defined as “a difference arising from the interpretation, application, administration or alleged contravention of the provisions of this Agreement.” It argues that the issue raised in #011-97 involves an “interpretation…of the provisions of this Agreement”, specifically Article 6.15(a), the same article raised in Mr. Cheng’s January 1999 grievance.

The Employer further relies on Article 27.12 which states that “[w]here a grievance is not processed within the time allowed or has not been process by the employee or the Union within the time prescribed it shall be deemed to have been withdrawn.” The Employer contends that if the Board concludes that #011-97 was not withdrawn at the March 19, 1997 meeting, it was withdrawn by virtue of Article 27.12.

Accordingly, the Employer asks that the 1999 grievance of Mr. Cheng be dismissed.

B. The Union

The Union contends that the onus is on the Employer to establish that the January 1999 grievance of Mr. Cheng is inarbitrable. The Union submits that for a variety of reasons the Employer failed to meet its onus.

First, the Union submits that Mr. Cheng’s 1997 complaint was not a “grievance”. It contends that the collective agreement clearly distinguishes between Stage 1, the “complaint stage” and Steps 2 and 3, the “grievance” stages. It submits that the January 1997 complaint of Mr. Cheng was a Stage 1 “complaint or difference” and never became a formal “grievance” under Article 27. It asserts that this Board should be very wary of treating a decision not to proceed beyond Stage 1 as binding the Union to the Employer’s interpretation of the collective agreement for all time. Such a ruling, it submits, would seriously undermine attempts to resolve matters and make a mockery of the grievance procedure. Instead of real discussions and attempts to resolve matters informally, the Union submits that the parties would be forced to posture instead and nothing would be resolved or withdrawn.

This is especially true, the Union notes, when a “package” deal is agreed upon, as in this matter, whereby certain claims are dropped in exchange for other ones. The Union submits that the testimony of Mr. Cheng was that he was willing to forget about #011-97 in order to receive payment for the “big one”, his overtime claims.

The Union further contends that the evidence does not support a finding of estoppel. At the March 19, 1997 meeting, it submits, there was no representation by the Union that it agreed to the Employer’s position on shift premium or that it would not rely on its strict legal rights under the collective agreement. Nor, it contends, has there been any demonstration of detrimental reliance by the Employer, a failure that is fatal to any estoppel argument. In support, the Union cites to Ontario Liquor Board Employees Union (Lariviere) and Liquor Control Board of Ontario, supra.

The Union also contends that there was no agreement by the parties that the Employer’s interpretation of Article 6.15(a) would govern the parties in the future, or that it would not grieve the issue. There was no memorandum of settlement on #011-97. There was no evidence that Mr. Cheng or Mr. James stated that they agreed with the Employer’s position. There was no evidence that the Union’s head office was even informed of the disposition of Mr. Cheng’s complaint. Mr. Wagner, the Union notes, could not recall precisely what he said or Mr. James said during the March 19, 1997 meeting. In these circumstances, the Union submits that the decision not to proceed with #011-97 cannot preclude a subsequent grievance. In support of its position, the Union cites to Re Edwards of Canada, Unit of General Signal of Canada Ltd. and United Steelworkers, Local 7466 (1974), 6 L.A.C. (2d) 147 (Adams); Re Lakehead District Roman Catholic Separate School Board and Ontario English Catholic Teachers’ Assn. (Post Vacancies Grievance)[2000] O.L.A.A. No. 131 (Quicklaw) (Whitaker); Re Canada Post Corp. and Canadian Union of Postal Workers (CUPW-360-GC-166)[1983] C.L.A.D. No. 19 (Quicklaw)(Bird); Re Longyear Canada Inc. and International Association of Machinists, Local Lodge 2412 (1981), 1981 CanLII 4522 (ON LA), 2 L.A.C. (3d) 72 (P. Picher)

The Union also argues that the subject matter of the January 1997 complaint differs from the January 1999 grievance, and that they are not the “same” grievance. It contends that each is based on a discrete claim for compensation on discrete days. It submits that Mr. Cheng’s January 1999 grievance is based on claims for compensation from Christmas of 1998, not two days in January of 1997. Citing, Laviviere, supra at p. 5, the Union contends that while settlement, abandonment, withdrawal or determination of a specific matter brings that matter to an end, “[t]hat does not prevent another, different matter from being litigated.” It also cites to OPSEU (Akker) and Ministry of Correctional Services, GSB No. 623/91 (Kirkwood, Vice-Chair).

In terms of the Employer’s adverse inference contention, the Union contends that there was no need for it to call Mr. James. It submits that if Mr. Wagner had testified that Mr. James agreed with the Employer’s interpretation and he was not called to refute that an adverse inference could be drawn, but no such testimony was elicited. Instead, it argues that Mr. Wagner could not recall either his own exact words or those of Mr. James. Consequently, it asserts that there was no need to call Mr. James because there was no evidence that he made a representation on behalf of the Union and no adverse inference should be drawn.

Accordingly, the Union asks that the Employer’s preliminary objection be dismissed.

Decision

For the reasons set forth below, I conclude that the Employer’s preliminary objection must be dismissed. Based on the specific facts presented, I cannot conclude that the decision not to proceed with #011-97 renders the January 1999 grievance inarbitrable, either on the basis of issue estoppel, res judicata or the arbitral principle of abandonment.

Even accepting Mr. Wagner’s testimony in its entirety, I cannot conclude that the Union specifically agreed to the Employer’s interpretation of Article 6.15(a). His testimony was that he reiterated the Employer’s position that it does not pay shift premium for overtime hours and the grievance was withdrawn at that point. He could not recall Mr. James or Mr. Cheng agreeing to the Employer’s position. There was no memorandum of settlement stating that the Employer’s interpretation should govern in the future. There was no document recording that the Union or the grievor agreed to the Employer’s interpretation or Article 6.15 or that no further grievances would be filed. While Mr. Wagner testified that it was his “understanding” that the Union was accepting the Employer’s interpretation of the collective agreement, there was no specific agreement to that effect.

Indeed, there was no evidence that the decision not to proceed with #011-97 was ever conveyed to the head office of the Union. In contrast, a copy of the March 19, 1997 Minutes of Settlement concerning seven other complaints by Mr. Cheng was sent to “OBLEU”. Although there is no obligation on the Employer to inform the Union of its understanding of the decision not to proceed with #011-97, its failure to do so undermines its claim that the Union is bound by the decision of Mr. Cheng not to proceed and that it accepted the Employer’s interpretation of Article 6.15(a).

Under the parties’ collective agreement, Stage 1 is an informal stage in which an “employee who has a complaint or a difference shall discuss the complaint or difference with his/her supervisor…” If not resolved, the employee may then file “a grievance in writing…” at Stage 2. Although the March 19, 1997 meeting occurred after Stage 1, it took place before Stage 2 was initiated. It was an informal meeting to attempt to resolve a number of outstanding complaints of Mr. Cheng and it accomplished its aim. Seven of Mr. Cheng’s complaints were resolved through Minutes of Settlement and a number of others, including #011-97, were dropped without reasons being stated.

Under these circumstances, the decision not to proceed to Stage 2 cannot bind the Union or the grievor to the Employer’s interpretation of the collective agreement or render Mr. Cheng’s January 1999 grievance inarbitrable. As set forth in Re Edwards of Canada, Unit of General Signal of Canada Ltd. and United Steelworkers, Local 7466, supra at p. 146: “The arbitral jurisprudence is all but unanimous in denying probative value to interpretations involved in pre-arbitration settlements, at least unless the parties have clearly set out in minutes of settlement that the interpretation should govern in the future.” That principle is even more compelling where there is no formal settlement of the dispute. As Arbitrator Adams noted at pp. 146-47: “It was not established whether the matter was settled or simply abandoned and hence I cannot draw any inference that by its action the union agreed with the employer’s interpretation.”

The rationale for requiring a clear intent that the interpretation should govern in the future rests with the nature and purpose of the grievance procedure – an informal process to resolve disputes at the earliest stage possible. As stated in Re City of London and C.U.P.E., Local 101 (1976), 1976 CanLII 2100 (ON LA), 13 L.A.C. (2d) 213, at 214-15 (Hinnegan):

[N]o probative value can be given to an arbitration settlement at least unless the parties have clearly set out minutes of settlement or otherwise shown intention that the interpretation should govern in the future. The reason for this is simply that a pre-arbitration settlement is almost always made in the spirit of compromise, which is a fundamental of the dynamics of labour relations with no necessary intention that the settlement should govern in all events in the future. …

Similarly, as stated in Palmer, Collective Agreement Arbitration in Canada, at p. 215:

Settlement or withdrawal of a particular grievance does not prevent a party from taking similar matters which arise subsequently to arbitration. This has been explained as follows:

Settlements at any stage of the grievance procedure preceding arbitration do not have to be in conformity with the parties’ legal rights and obligations. No party to a settlement is estopped thereby in relation to the arbitration of a similar matter arising subsequently. But the settlement itself is binding.

Most cases have held that in order for the interpretation of the collective agreement involved in pre-arbitration settlements to be of precedential value in arbitration, the parties must so bind themselves expressly.

These principles were followed in Re Longyear Canada and Int’l Association of Machinists, supra. In that case, “some years back”, the Union had filed a grievance on behalf of an individual contesting the company’s letting field employees, who were not part of the bargaining unit, carry goods designated for general delivery to a job site. The Union withdrew the grievance prior to it being referred to arbitration, and the president of the union stated, at the time, that he did not feel that the union had a grievance. Later, the union filed another grievance raising the same issue – whether field employee could carry goods designated for general delivery to a job site. The employer argued that the second grievance was barred by the withdrawal of the earlier one, both on an estoppel basis as well as the principle of abandonment.

Arbitrator Picher rejected the contention that the withdrawal of the grievance accompanied by the president’s words “we don’t have a grievance” constituted a representation or implication that the union agreed with the company’s practice or that it would not seek to strictly enforce its rights under the collective agreement. Although she agreed that “in the interest of certainty, finality, efficiency and the integrity of the process, a union that settled as grievance alleging a violation based on a particular incident cannot later refile the same grievance based on the on the same incident,” she rejected the contention that withdrawal of a “grievance involving the same subject-matter or the same general principle” barred the later grievance. (2 L.A.C.(3d) at 81-82)

Accordingly, a decision by an employee not to pursue a grievance should not, without more, constitute a representation or agreement to accept the Employer’s interpretation of the collective agreement. As stated by Vice-Chair Harris in Ontario Liquor Board Employees’ Union (Laviviere), supra at p. 5: “The withdrawal, settlement or abandonment of a grievance cannot necessarily be taken as acquiescence in the opposite party’s view of arbitrability for all other matters and all other grievors.” In my view, this is especially true at the earliest stages of the grievance procedure. Under the parties’ collective agreement, with the exception of union grievances, it is the individual employee who decides whether or not to proceed to Stages 2 and 3. The employee has the option to be accompanied and represented by a union representative during those stages but may act alone. During Stage 1, unless “otherwise agreed”, a meeting to discuss a complaint or difference “shall only be attended by the employee and his/her supervisor.” Given the nature and purpose of the grievance procedure, the decision of an employee not to pursue his or her claim during these early stages should not, by itself, bind the Union to the Employer’s position on an important issue of contract interpretation.

This principle applies regardless of whether or not complaint #011-97 should be considered a “grievance”. Under Article 27, an employee may have a “complaint or difference” which does not involve a “difference arising from the interpretation, application, administration or alleged contravention” of the collective agreement. The words “complaint or difference” are different from and broader than the definition of a “grievance.” But regardless of whether complaint #011-97 should be considered a “grievance” or simply a “complaint or difference”, Mr. Cheng’s decision not to proceed to Stage 2 cannot, under the facts of this case, constitute a representation which estops him, or res judicata or an abandonment which would preclude this Board from having jurisdiction to hear the January 1999 grievance.

In Re Lakehead District Roman Catholic Separate School Board, supra, Arbitrator Whitaker determined that in deciding whether a withdrawn grievance constituted either an issue estoppel or res judicata with respect to any subsequent grievance filed on the same issue, the arbitrator’s role was “to construe the understanding of the parties based on the circumstances surrounding the withdrawal.” In so ruling, he cited to Re Acme Strapping Co. and United Steelworkers, Local 6572 (1991), 1991 CanLII 13320 (ON LA), 22 L.A.C. (4^th) 400 at 415 (Baum), that the key question is whether “withdrawal of a grievance…has been taken by the parties to mean a settlement of the dispute on the other party’s terms.”

In this case, there is no evidence that the withdrawal of #011-97 was taken by the Union or the grievor to mean a settlement of the dispute on the Employer’s terms. Clearly, it was withdrawn, but without more, it cannot be assumed that it was withdrawn on the basis that the Union and grievor were conceding the correctness of the Employer’s position. Accord, Re Nabob Foods Ltd. and Canadian Allied Manufacturers Wholesale and Retail Union (1982), 1982 CanLII 5042 (BC LA), 2 L.A.C. (3^rd) 353 (Germaine).

In Ontario Liquor Board Employees Union (Laviviere), supra, a case relied upon by both parties, Vice-Chair Harris concluded that “a party may not bring forward another complaint over the same fact situation after that fact situation has been settled, abandoned, withdrawn, or finally determined by a competent tribunal.” He continued at p. 5:

The settlement, abandonment, withdrawal or determination of a specific matter brings that matter to an end. That does not prevent another, different matter from being litigated. Where the subsequent matter involves the application of similar legal principals to a similar fact situation the result may be easily predicted, unless the prior determination is manifestly wrong. None the less, the matter is litigable.

Similarly, in OPSEU (Akker) and Ministry of Correctional Services, supra, the Board rejected the Ministry’s contention that the withdrawal of an earlier, similar grievance was res judicata or issue estoppel and barred a subsequent grievance. In both cases the grievor alleged that the issuance of an attendance letter constituted harassment. The first grievance was withdrawn on the basis that the attendance letter was not “discipline”. The Board ruled at p. 4 that this was “not a situation in which this grievance could be said to arise from the earlier grievance”, nor did it involve a “grievor who has settled a matter to have second thoughts and relitigate the issue.” Instead, it found that there was “no basis to find that this matter [the issue of harassment] ha[d] been resolved by its withdrawal.”

In this case, the parties dispute whether or not the 1997 complaint and the 1999 grievance concern the “same fact situation.” I conclude that they do not involve the same fact situation; they involve the same legal issues. The 1997 complaint concerns two days in January 1997 when the grievor did not receive a shift differential. The 1999 grievance concerns some dates in December 1998 when the grievor did not receive a shift differential. The specific facts that led to the two complaints are different. The legal issues raised regarding the interpretation of Article 6.15(a) are identical.

Even though the legal issues are the same, I cannot conclude that the decision not to proceed with #001-97 bars the 1999 grievance. The basic reason for the “arbitral rule of abandonment” lies in fostering the “orderly processing of grievances” and providing a “measure of finality to the resolution of grievances.” Re Nabob Foods Ltd. and Canadian Allied Manufacturers Wholesale and Retail Union (1982), 1982 CanLII 5042 (BC LA), 2 L.A.C. (3d) 353, 357 (Germaine). As stated in that decision at p. 357:

A trade union is therefore precluded from implicitly conceding an issue and then later reconsidering its position and attempting to pursue the same issue. Employers are thus protected from being “plagued and harassed” …

In this case, there is no evidence that the Union or the grievor, through the withdrawal of #011-97, explicitly or impliedly accepted the Employer’s position on Article 6.15(a) and conceded the issue. There is no evidence, or suggestion, that complaint #011-97 was withdrawn by the Union and the instant grievance filed to harass the Employer or otherwise abuse the grievance process. See, Re Governing Council of the University of Toronto and Service Employees Union, Local 204, supra; Re Longyear Canada and Int’l Association of Machinists, supra. Contra: Re Weston Bakeries Ltd. and Milk and Bread Drivers, Dairy Employees, Caterers and Allied Employees, Local 647, supra. There is no evidence that the Employer relied on the fact that #011-97 did not proceed to Stage 2 to its detriment. Accordingly, under the specific facts of this case, I cannot conclude that this matter – the proper interpretation of Article 6.15(a) - has been resolved by the decision not to proceed with complaint #011-97 or that its withdrawal or abandonment constitutes an issue estoppel or res judicata.

For all of the reasons stated above, the Employer’s preliminary motion is denied.

Dated at Toronto, this 3^rd day of August, 2001.