GSB#1981-0407

UNION#2008-0407-0001

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Ross)

Union

• and -

The Crown in Right of Ontario (Ministry of Municipal Affairs and Housing)

Employer

BEFORE

Owen V. Gray

Vice-Chair

FOR THE UNION FOR THE GRIEVOR

Ed Holmes Ryder Wright Blair & Holmes LLP Counsel Ameena Sultan Swadron Associates Counsel

FOR THE EMPLOYER

Benjamin Parry Counsel Ministry of Government Services

HEARING

January 30, 2009.

Decision

1This decision deals with a preliminary issue that is best explained by referring first, briefly, to prior proceedings in this 1981 file.

The 1983 hearings

2In June 1981 the grievor, Brenda Ross, was dismissed from her employment with the Ministry of Housing. She grieved. The union referred her grievance to the Grievance Settlement Board (“the Board”) for arbitration. After conducting a hearing, the Board (differently constituted) allowed the grievance in June 1983. It ordered that the grievor be reinstated to her previous position, ruling also that

She is entitled to retroactive payment of salary and benefits, subject to the usual concerns about mitigation. We remain seized concerning implementation of this Award.

The hearing was reconvened later that year before the same three person panel of the Board (“the 1983 panel”), which noted in its “Supplementary Award” that “we remained seised of the question of compensation should it become a problem, and it has become a problem.” The supplementary award describes the various matters that the grievor wanted addressed with respect to compensation. After hearing further evidence and argument, the Board accepted the employer’s calculation that the amounts to which the grievor was entitled by way of compensation exceeded the amounts that the employer had paid or was entitled to recover from her by the sum of $0.75. That supplementary award ended with the words “We remain seized.”

This Hearing

3In 2008, at the grievor’s request, the union asked that the Board reconvene the hearing in this file to deal with what the union contends are matters concerning the implementation or enforcement of the two 1983 decisions. The chair and members of the panel that conducted the 1983 hearings had long since ceased to be a Vice-Chair and members, respectively, of the Board.¹ Under current legislation, the Board’s hearings are ordinarily conducted by a Vice-Chair sitting alone. The employer and the union, but not the grievor, have agreed to my being assigned to conduct the reconvened hearing.

The Preliminary Issues

4After the second day of the 1983 hearings, the grievor presented the grievance herself, while the lawyer that the union had retained for that purpose watched. The grievor has asked that she or her own counsel be permitted to present evidence and make argument in the reconvened hearing: that is, that she be treated as a party separate from the union. Both the union and the employer oppose that request. The grievor has also taken the position that the hearing should be conducted by the former Vice-Chair who chaired the panel that conducted the hearings in 1983.

5Before hearing further about these preliminary matters I asked union counsel to describe the dispute that the union proposed to pursue on the grievor’s behalf in the reconvened hearing. Counsel described in some detail certain allegations of fact relating to six distinct remedial issues that he characterized as matters of implementation or enforcement of the 1983 decisions in these proceedings. I then asked the grievor’s counsel whether the matters that the grievor would wish to raise were in any way different from what union counsel had described. She replied that union counsel had described the issues that the grievor wished to raise.²

6The union and employer took the position that I should deal first with the question whether the grievor could participate in the hearing as a party separate from the union. They observed that if I ruled in their favour on that issue it would be unnecessary to deal with any issue about the constitution of the Board in this matter, since the union and employer agreed that the Board is properly constituted. Although the grievor preferred that I first deal with the issue of who should conduct the Board’s hearing, I concluded that the issue of her standing as an independent party should be addressed first, for the reason offered by counsel for the employer and union.

7The grievor’s own counsel made submissions on that issue, as did union counsel and employer counsel. Having reserved and fully considered those arguments and the materials filed with me, I have determined that the grievor will not have party standing in these resumed hearings.

Analysis and Reasons for Denying Grievor’s Request For Party Standing

8My explanation of that conclusion begins with some general observations about the legal context in which the issue arises.

The Legal Context

9When these proceedings began in 1983, labour relations between the Crown in right of Ontario and “employee organizations” representing Crown employees were governed by the Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108 (“CECBA 1980”). Section 19 of that Act provided that

19.-(1) Every collective agreement shall be deemed to provide that in the event the parties are unable to effect a settlement of any differences between them arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable, such matter may be referred for arbitration to the Grievance Settlement Board and the Board after giving full opportunity to the parties to present their evidence and to make their submissions, shall decide the matter and its decision is final and binding upon the parties and the employees covered by the agreement.

Subsection 1(1)(k) of the Act defined “parties”:

1.(1) In this Act, …

(k) “party” means the employee organization that is the bargaining agent for a bargaining unit, on the one hand, and the employer, on the other hand, and “parties” means the two of them;

Thus, at arbitration the necessary parties to a dispute of the sort described in section 19 were the union and the employer.

10Generally speaking, CECBA 1980, like its successor legislation and other collective bargaining legislation in Ontario and the rest of Canada, created a legal regime in which the exclusive bargaining agent (“the union”) is not the agent of each bargaining unit employee individually, but an independent contracting party whose agreement with the employer is binding on all employees in the bargaining unit: Syndicat Catholique des Employés de Magasins de Québec Inc. v. Cie Paquet 1959 CanLII 51 (SCC), [1959] S.C.R. 206. The union’s status as exclusive bargaining agent has implications that extend beyond the negotiation of a collective agreement to the administration and enforcement of that agreement, as the Supreme Court of Canada observed in Noël v. Société d’énergie de la Baie James 2001 SCC 39, [2001] 2 S.C.R. 207:³

41. One of the fundamental principles we find in Quebec labour law, and one which it has in common with federal law and the law of the other provinces, is the monopoly that the union is granted over representation. …

42. In administering collective agreements, the same rule will apply to the processing and disposition of grievances. Administering the collective agreement is one of the union’s essential roles, and in this it acts as the employer’s mandatory interlocutor. If the representation function is performed properly in this respect, the employer is entitled to compliance with the solutions agreed on. Collective agreements may of course recognize the right of employees to file grievances and take them to certain levels, even to arbitration, or to participate directly in grievances as parties. That is not the case here. With that exception, the rule is that the grievance and arbitration process is controlled by the union, to which that control belongs … The union’s power to control the process includes the power to settle cases or bring cases to a conclusion in the course of the arbitration process, or to work out a solution with the employer, subject to compliance with the parameters of the legal duty of representation.

11In Blake et al., 1276/87, the then chairman of the Grievance Settlement Board considered whether the language of subsection 18(2) of CECBA 1980 afforded aggrieved employees the ability to refer to arbitration grievances of the sort described in that subsection. The subsection read:

18.-

(2) In addition to any other rights of grievance under a collective agreement, an employee claiming,

(a) that his position has been improperly classified;

(b) that he has been appraised contrary to the governing principles and standards; or

(c) that he has been disciplined or 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 procedure, the matter may be processed in accordance with the procedure for final determination applicable under section 19.

He concluded that while that section gave employees the right to raise and process certain types of grievance through the grievance procedure, it did not give them the right to refer such grievances to arbitration. He referred to and followed an earlier decision of the Board to essentially the same effect: Francis, 1528/86 (Brandt).

12Labour relations statutes in Ontario and elsewhere in Canada generally provide that a trade union has a duty not to act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in a bargaining unit for which it is the exclusive bargaining agent. This is usually described as a “duty of fair representation.” Subject to that duty and the terms of the applicable collective agreement, it is the union and not the aggrieved employee who decides whether and in what respects and manner a bargaining unit employee’s complaint or grievance about the alleged violation of his or her rights under the collective agreement is referred to and presented at arbitration. The duty of fair representation does not require that a union do whatever the grievor wishes in that regard. In determining whether and how to advance a grievance at arbitration, the union is entitled to weigh other considerations: the merits of the grievance, for instance, including the likelihood of its success and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration, as well the impact of litigating the dispute on the union’s financial and other interests: Catherine Syme, [1983] OLRB Rep. May 775.

13Disputes about whether a union has breached its duty of fair representation in its handling of a grievance have never been within the jurisdiction of the Grievance Settlement Board, either under CECBA 1980 or its successor legislation, nor within the jurisdiction of an arbitrator under the Ontario Labour Relations Act, 1995, S.O. 1995, c.1, Sch A, (the “OLRA”) nor any of its predecessor legislation. Under CECBA 1980, such disputes were within the exclusive jurisdiction of the Ontario Public Service Labour Relations Tribunal. Since the enactment of the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, (“CECBA 1993”), which repealed CECBA 1980, such disputes are within the exclusive jurisdiction of the Ontario Labour Relations Board (“OLRB”), which also has exclusive jurisdiction over such disputes in other relationships governed by the OLRA.

14It seems well settled that unless the applicable collective agreement clearly provides otherwise, a grievor does not have the right to participate as a party in the arbitration of his or her grievance, either in substitution for or addition to the union, merely because the dispute concerns the grievor’s claim that his or her rights under the collective agreement have been violated, and that granting such standing would be inconsistent with the union’s rights as exclusive bargaining agent. Decisions cited to me in that regard, and decisions to which those decisions refer, are Re Le Syndicat des Fonctionnaires Provinciaux du Quebec and Le Gouvernement du Quebec, Ministre L’Education (1971), 1971 CanLII 1899 (QC LA), 23 L.A.C. 117 (Lande), Re Governing Council of the University of Toronto and Service Employees Union, Loc. 204 (1974), 1974 CanLII 2377 (ON LA), 5 L.A.C. (2d) 304 (Weatherill); Re Municipality of Metropolitan Toronto and C.U.P.E., Local 79 (1974), 1974 CanLII 2263 (ON LA), 5 L.A.C. (2d) 311 (Carter) at pp. 316-7, Re Beacon Hill Lodge Inc. and O.N.A. (1990), 1990 CanLII 12880 (ON LA), 15 L.A.C. (4th) 307 (Craven), Re Beacon Hill Lodges Inc. and O.N.A. (1990), 1990 CanLII 12755 (ON LA), 15 L.A.C. (4th) 323 (Craven), Re Calgary Philharmonic Society and Calgary Musicians’ Assn., American Federation of Musicians, Loc. 547 (1983), 1983 CanLII 4865 (AB GAA), 9 L.A.C. (3d) 324 (Mason), Re 3M Canada Inc. and C.A.W.-Canada, Loc. 27 (Chapman) (1997), 1997 CanLII 25010 (ON LA), 64 L.A.C. (4th) 213 (Knopf)), Re Ryder Integrated Logistics and C.A.W.-Canada, Local 195 (2005), 2006 CanLII 93280 (CA LA), 147 L.A.C. (4th) 348 (Rayner), Group Grievance, GSB File#1999-0258, 2005 CanLII 55125 (Petryshen) and Re Ontario and O.P.S.E.U. (Therrien) (2008), 173 L.A.C. (4th) 193, 2008 CanLII 32795 (Lynk).

15Some arbitrators have speculated that there may be exceptional circumstances in which a discretion to grant standing should be exercised in a grievor’s favour. Unless the 1983 proceedings in this matter can be so characterized (an issue to which I return later), however, none of the arguments here identified any case in which this Board, or any arbitrator or arbitration board, has granted a grievor party status in the absence of a clear collective agreement entitlement to such status.

16An employee other than a grievor may be entitled to intervener status in an arbitration proceeding if his or her rights under the collective agreement would be adversely affected by the granting of the remedies being sought by the union in that proceeding: Hoogendoorn v. Greening Metal Products & Screening Equipment Co., 1967 CanLII 20 (SCC), [1968] S.C.R. 30, Bradley v. Ottawa Professional Fire Fighters Assn., 1967 CanLII 160 (ON CA), [1967] 2 O.R. 311 (Ont. C.A.). The reasons why a grievor whose dispute the union advances at arbitration is not in that position, despite the fact that his or her rights under the collective agreement are squarely in issue, were explained by arbitrator Rayner in Re Ryder Integrated Logistics, supra, at pp. 350-2:

Is the grievor entitled to third party status?

My starting point in the analysis of this question is quite basic. Apart from cases where there is language in the collective agreement to the contrary, the parties to the collective agreement are the Union and the Employer and in the normal case only parties to the contract are given standing to litigate disputes under that contract. The Union, which represents the collective as well as the grievor, has carriage of the case and must be given the right to determine if, and how, the case is to be presented. (See: Re Diamond Taxicab Assn. and Diamond Taxicab Associates’ Committee (1998), 1998 CanLII 30046 (ON LA), 75 L.A.C. (4th) 173 (R. Brown); Re 3M Canada Inc. and C.A.W.-Canada, Loc. 27 (Chapman) (1997), 1997 CanLII 25010 (ON LA), 64 L.A.C. (4th) 213 (Knopf)).

As pointed out in the latter case if there is a conflict between the individual and the Union the individual can file a complaint before the appropriate Labour Relations Board alleging a violation of the duty of fair representation and that Board can require the Union to either process the grievance or retain counsel of the grievor’s choice.

There are many instances of individuals (who are not grievors) being granted third party status when there is a reasonable expectation that some significant personal interest may be directly and adversely affected by the outcome of the arbitration. These individuals may be within the bargaining unit (the classic example being the job promotion case) or outside the unit (such as the supervisor alleged to have harassed the grievor). The basis for the granting of third party status is based on principles of natural justice. A summary of the relevant principles governing the issue of third party status may be found in Re London (City) and C.U.P.E., Loc. 101 (2004), 2004 CanLII 94636 (ON LA), 131 L.A.C. (4th) 56 (Lynk).

In my opinion the test of reasonable expectation that a personal interest may be affected applicable for granting third party status when it is claimed by individuals other than the grievor is not the same when claimed by the grievor. The reason for the inapplicability of that test is self evident. Since the grievance is being brought by the Union on behalf of the grievor, in every instance the grievor’s personal interest will be directly affected. If that is all the grievor has to establish he or she would be entitled to third party status in each case and the principle of Union exclusivity in the carriage of the grievance would be completely undermined.

I am far from convinced that an arbitrator has any jurisdiction to grant independent status to the grievor in an arbitration (apart from instances where the collective agreement specifically so provides) in spite of comments by way of obiter dicta in some awards that such status can be granted. I note that in the 3M case arbitrator Knopf was of the view that arbitration under a collective agreement was not an appropriate forum to determine whether the Union had violated its duty of fair representation. Such a determination should be left to the Labour Relations Board. I think that there is a great deal of merit in this approach. If that is so, I can see no basis on which to grant full or even limited third party status to a grievor.

There may be an argument to support an opposite conclusion if the Union is engaging in the arbitration process merely as a sham with no intention to fairly represent the grievor. However, even then there is a remedy available before the Board which is the appropriate tribunal to hear the matter and the arbitration can be adjourned pending the resolution of the application to the Labour Board. (See: Re Toronto Public Library Board and C.U.P.E., Loc. 1996 (Eta) (1997), 1997 CanLII 25097 (ON LA), 65 L.A.C. (4th) 400 (Brandt)).

17The question of a grievor’s standing at arbitration was recently addressed by this Board (differently constituted) in Re Ontario and O.P.S.E.U. (Therrien) (2008), 173 L.A.C. (4th) 193, 2008 CanLII 32795 (referred to hereafter as “Therrien”). In that case the grievor, Ms. Therrien, had filed a complaint under the Ontario Human Rights Code against the union and its local presidents concerning the same incidents that were the subject of the grievances before the Board. The grievor sought full party standing in the Board’s hearings separate and independent from the union. In his reasons for denying the request, Vice-Chair Lynk made these observations (at pp. 200-201):

I am satisfied that, in law and in practice. a union operating under the Crown Employees Collective Bargaining Act. 1993, S.O. 1993, c. 38, has exclusive carriage rights with respect to grievances filed under the collective agreement governing Ms. Therrien’s employment rights. This was established by the Grievance Settlement Board in Blake et al and Amalgamated Transit Union and Toronto Area Transit Operating Authority (GSB # 1276/87, 3 May 1988), where the Board found that exclusive carriage rights are necessary to allow a union to consider the larger interests of all of its members when evaluating the merits of an individual grievance: “Thus, it is important that the union which is responsible for the collective interests of the members of the bargaining unit control access to arbitration.”

This principle was recently re-affirmed in OPSEU and Ministry of Community Safely and Correctional Services (Group Grievance) (13 January 2005) [80 C.L.A.S. 74], where Vice-Chair Petryshen stated that “The Grievance Settlement Board has consistently held that the Union has carriage of a grievance at arbitration and that it alone has the right to decide who will represent grievances at arbitration.”

There is much industrial relations sense in these rulings. Unions are permitted in law to evaluate the merits of individual grievances, and decide whether any particular grievance fits well with their larger interests. They are able to conserve and allocate their resources for those grievances that are either important individually, or that matter collectively. Conversely, they are able to withhold or withdraw those grievances that are too trivial, too expensive or too ill-suited to the wider objectives of the union. As well, they are able to speak with a single voice at arbitration. The result, in most cases, is a more effective and efficient grievance resolution system, which permits a union to bargain from a position of strength with the employer by processing only those grievances that matter. The benefit to the employer is that it is not expending huge amounts of resources to defend itself against unworthy grievances, and it is able to focus its attention on those industrial relations issues that the union has identified as pressing and worthy. The benefit for employees is that their grievance system is not clogged with merit-less grievances that would hinder the progress of their own complaint, if accepted as worthy. For dissatisfied union members, the law provides a check against sloppy, indifferent, discriminatory or bad faith behaviour by unions in their grievance determination through the fair representation duty in labour law and through human rights statutory obligations.

Ms. Therrien and the Union have presently a strained and difficult relationship, arising out of the incidents of 30 August 2004 and Ms. Therrien’s subsequent human rights complaint against the Union. This is a subjective factor that has no meaningful bearing on the question of the union’s carriage rights at arbitration. In unique circumstances that may present themselves in some future case, there may be facts related to an objective conflict of interest between a union and an employee that are sufficiently compelling to justify the granting of separate standing for a grievor at a grievance arbitration hearing, where the continued representation of a grievor’s interests by his or her union at arbitration is utterly incompatible with natural justice and industrial relations fairness. This is not the case here.

The Arguments

18The grievor’s counsel argued that while grievors might not ordinarily have standing separate from the union, such standing can and should be granted in exceptional circumstances. She submitted that exceptional circumstances exist here.

19Although it is not the only circumstance on which counsel relied, the central one was that this is the continuation of proceedings in which, counsel argued, the Board had “granted” the grievor such standing in 1983. Her counsel noted that the grievor had been motivated to seek that standing by her loss of confidence in the union, as appears from this passage from the first of the Board’s two 1983 decisions:

… Although the matter is complicated, the presentation of the case was made more difficult because Counsel hired by the Union to present the case on behalf of the Union, lost the confidence of the Grievor who indicated on July 16, 1982 that she did not wish him to speak for her. Because he was employed by the Union and not by the Grievor, he chose to remain in attendance and watched helplessly as six further days of evidence were heard. Much of the evidence presented during that time, while relevant, was probably led unnecessarily and I am confident that if counsel had not been put in the position in which he was, the matter would have been resolved about one year ago. Be that as it may, however, the Grievor did have a firm grasp of all of the factual details of her case, if not the legal implications of those facts, and presented these details in a thoroughly exhaustive manner.

The grievor’s counsel also made reference to the title page of the first of the 1983 decisions, where the appearances noted “For the Grievor” are “S.T. Gouge, Q.C. … (until July 15, 1983)” and below that “B. Ross.” The appearances on the second award are “For the Grievor: B. Ross – for herself” and “For the Union: S.T. Gouge, Q.C.”

20The grievor’s counsel also relied on the existence and content of a complaint filed on the grievor’s behalf with the OLRB, alleging breach by the union of its duty of fair representation (“the DFR complaint”).⁴ The DFR complaint alleges, among other things, that despite the grievor’s requests that it do so, for a considerable period of time prior to 2008 the union did not ask the GSB to reopen these proceedings, and “obstructed” her own direct attempts to have them reopened. In the DFR complaint the grievor seeks orders that the union, among other things, “request that Mrs. Ross’s grievance to be heard [sic] by ... the Chair of the still-seised panel of the Grievance Settlement Board” and “allow Mrs. Ross to choose her own counsel for the upcoming arbitration.” The grievor’s counsel submitted that the existence of this conflict between the grievor and the union favours allowing the grievor to present her own dispute before this Board.

21Without resiling from her earlier agreement that the dispute described by union counsel was the dispute that the grievor wished to present herself, the grievor’s counsel said that the grievor felt she would “more fully flesh out” that dispute, would present different evidence and would make different representations than she believes the union will.

22In addition to the form and content of the two 1983 awards, counsel for the grievor referred to and relied upon an undated letter apparently written to the Minister of Labour in 2006 by the former Vice-Chair who had chaired the 1983 panel. The letter appears in the appendices to the DFR complaint.

23The complaint recites that in 2003 the grievor asked the GSB to reconvene the hearing in this matter. The GSB advised OPSEU of the request, and OPSEU contacted the grievor. OPSEU’s representative told the grievor that scheduling at the GSB is done through OPSEU and not by its members directly. She told the grievor she had asked the GSB that all future contact by the grievor be referred her and that the GSB not take any action until the union made a scheduling request. She also asked the grievor for details of the ways in which she felt her 1981 grievance remained unresolved, as the grievor had apparently indicated in her letter to the GSB. In the correspondence that ensued, the grievor took the position that the GSB had “previously ruled that she could act for herself,” and the union responded that “while in the past the union had allowed Mrs. Ross to act for her herself, it would no longer do so.” In the meantime, and thereafter, the GSB acted in accordance with the union’s request that it not schedule the grievance for hearing unless and until the union so requested.

24Against this background the complaint recites that in 2006 the former Vice-Chair wrote to the current Chair of the GSB, enclosing an “order” bearing only his signature. The “order” directed the GSB to schedule a one day hearing in this matter and pay his fees and disbursements. The complaint notes that the Board’s Chair responded with this letter:

I am in receipt of your letter and enclosure of February 27, 2006, where you purport to exercise the authority of the Grievance Settlement Board and direct its proceedings. You have not been authorized to exercise the statutory powers of the Grievance Settlement Board and I would ask you to refrain from assuming such authority. In a letter dated July 8, 2004, I advised you that the appropriate avenue for Ms. Ross to convey her concerns was through her union. As your correspondence of February 27, 2006, was copied to Ms Ross, I am forwarding a copy of that correspondence and this letter to the union in order that they may address any inquires Ms. Ross may have.

The complaint continues:

Still, OPSEU took no steps to request that the GSB re-convene to hear Mrs. Ross’s grievance.

At a loss for a remedy, [the former Vice-Chair] wrote to the Minister of Labour and requested direction on the matter of reopening the issue of the implementation of Mrs. Ross’s award. In his letter, [the former Vice-Chair] points out that the union did not act for Mrs. Ross when her hearings were held before the GSB but that it now was blocking her attempt to have the matter reopened. Attached as exhibit “U” is a copy of that undated correspondence.

The letter at exhibit ‘U’ to the complaint reads as follows:

Dear Minister: Re: Grievance Settlement Board

I enclose correspondence between me and the Chair of the GSB. It relates to a decision that a unanimous Board, with me as Vice-Chair made in 1983. Since 2003, and indeed before then, the Grievor B Ross has had concerns about whether the Award was properly implemented. I do not know what those concerns are, or whether or not they are legitimate.

The case was novel in that the Union withdrew its representation of her, at her request. It took no part in most of the hearing, or in argument. The Board allowed her grievance, issued a Supplementary Award, and remained seised.

I have been attempting to reopen the matter to hear evidence on the issue of implementation. The Union and the GSB take the position that the Union has carriage of the issue, and refuse to do so. As you will see from the enclosed, I think that legally if not in fairness, the Union position is nonsense. How can it have any legitimate interest in dealing with a case in which it had no part? Its role ended when it withdrew from participation. She represented herself then, and should be entitled to do so now.

The case raised [sic] interesting legal questions of the role of GSB Vice-Chairs as well. Could I ask that you look into this situation?

Exhibit ‘U’ does not include whatever may have been enclosed with this letter. There is no suggestion in the complaint, or by the grievor’s counsel before me, that the Minister intervened. The argument made for the grievor is, essentially, that the views expressed in the letter favour allowing the grievor to present her dispute as she sees fit, independent of the union.

25In their arguments union counsel and employer counsel cited and relied on the jurisprudence to which I have already referred on the standing of grievors in the hearing of their grievances at arbitration.

26Union counsel argued that the proper legal characterization of what happened at the 1983 hearings was that the union permitted the grievor to present her grievance. He submitted that the content of the decisions, and even of the letter, are not inconsistent with that view. He noted that there is no indication in either decision, or in the letter, that the panel had made any “ruling” on the grievor’s entitlement to independent party status. He argued that the union had been entitled to discontinue its permission and assert its right to determine whether and how further proceedings would be pursued at arbitration. He submitted that, despite obiter dicta to the contrary in a decision of another Vice-Chair of this Board (to which he drew my attention as professional counsel ought), neither an arbitrator nor the GSB has the discretion to grant a grievor standing to participate as a party in the arbitration of his or her own grievance without the consent of the trade union that has exclusive authority to represent the grievor.

27In the alternative, union counsel submitted that this was not a proper case for exercise in the grievor’s favour of any discretion the Board may have to grant such standing, particularly as there is no conflict here between the positions the union proposes to advance in these proceedings and the positions the grievor wishes to advance. He stated again that he had been retained by the union to advance before this Board the positions he had outlined at the outset, positions which counsel for the grievor had acknowledged were the positions that the grievor wanted to advance. He submitted that the fact that the grievor might want to take a different approach in advancing those positions was irrelevant to the exercise of any jurisdiction I may have, and that any suggestion that these potential differences in strategy are inconsistent with the union’s duty of fair representation is a question for the OLRB and not this Board.

28Employer counsel took no position on the question whether I had a discretion to grant the grievor standing. If I did, he said, I should not exercise it in the grievor’s favour. Otherwise, he took the same position as the union, on which he elaborated, relying on the jurisprudence to which union counsel had referred and citing additional jurisprudence on the subject.

29In her reply argument the grievor’s counsel submitted that the grievor had not been authorized by the union to make the presentation in 1983 but, rather, the union had “withdrawn” as the former Vice-Chair put it in his 2006 letter. She noted (correctly) that Blake did not deal with a request by a grievor for separate standing in dispute that the union had referred to arbitration. She submitted that the decision in Therrien was distinguishable because the Board there found that there was not a strong, direct factual link between the grievances before it and the other outstanding proceedings between that grievor and the union. Here, she submitted, there is such a link between this proceeding and the outstanding proceedings between this grievor and the union at the OLRB. This, she argued, brought the matter within the “utterly incompatible with natural justice and industrial relations fairness” exception recognized in Therrien.

Reasons

30I share the doubt expressed by arbitrator Rayner in Re Ryder Integrated Logistics, supra. For the reasons he set out in that award, it seems unlikely that there could be any circumstances in which a grievance arbitrator under a collective agreement should grant what is, in effect, third party standing to an employee who is, in substance, the grievor whose grievance the union has referred to arbitration. I agree with him, and with arbitrator Knopf in the 3M award to which he refers, that the existence of a dispute between the union and grievor over the scope and presentation of the grievance is a matter for the appropriate labour relations board and not for the arbitrator. The statutory framework that governs the grievance arbitration process in the organized Ontario Public Service assigns the role of presenting grievances at arbitration to the union, the role of adjudicating those grievances as between the union and employer to this Board, and the role of resolving disputes between the union and bargaining unit employees about the union’s handling of those employees’ grievances to the OLRB. The exercise of this Board’s general power to determine its procedure must be respectful of those assignments.

31As for the speculation that in some case “there may be facts related to an objective conflict of interest between a union and an employee that are sufficiently compelling to justify the granting of separate standing for a grievor at a grievance arbitration hearing, where the continued representation of a grievor’s interests by his or her union at arbitration is utterly incompatible with natural justice and industrial relations fairness,” I note that there is no express consideration in the Therrien decision of the role of the Labour Relations Board. It is hard for me to imagine when it could ever be more appropriate for this Board to entertain and determine allegations of that sort, and provide a remedy in the form of standing, rather than leave it to the Labour Relations Board to determine the matter when and as it sees fit and make such directions as it considers appropriate concerning the manner in which the union is to prosecute, or ought to have prosecuted, the grievance.

32It is different if the employee seeking status is not in substance the grievor. Obviously, the result in Hoogendorn would have been no different if the union party there had disingenuously described Mr. Hoogendorn as the grievor. The proceedings with which that case was concerned did not arise out of a complaint by Mr. Hoogendorn that his rights under the collective agreement had been breached. The incumbents in Bradley had no quarrel with the results of the job competition that the union was challenging in the proceedings in which they sought standing. In both cases the relief being sought by the union, if granted, would have directly and adversely affected the collective agreement rights of the employees whose entitlement to third party standing was in issue. That is not this case. The employee seeking party status here is undoubtedly the grievor in substance as well as form.

33Disputes between the union and the bargaining unit employees it represents about whether and how their grievances should be advanced are less rare than one might hope. This is not the first Board proceeding to have a parallel OLRB proceeding in which the past and present relationship between the union and the grievor and how the grievance has been or should be handled are at issue. The existence of such a proceeding, and the truth or otherwise of the allegations that the grievor has made in it, are of no consequence to the exercise of any discretion I may have to grant the grievor third party standing in the hearing of her grievance, nor is the possibility that the union may present the grievance in a manner different from what the grievor would prefer.

34At the end of the passage I quoted earlier in paragraph [16], Arbitrator Rayner mentioned the possibility that an arbitration hearing might be adjourned pending the resolution of a related complaint to the Labour Relations Board. I asked the grievor’s counsel about that. She said the grievor was not seeking such an adjournment. She observed (without suggesting that the grievor would favour it) that the OLRB might choose to defer hearing the grievor’s complaint until after these proceedings are concluded. I recognize that it may do that.⁵ That does not change my analysis. Against the possibility of an “if only he had known he might have decided differently” argument later, I should also note that I know, for example, that the OLRB has a discretion whether it will entertain a DFR complaint,⁶ that it may dismiss such a complaint for delay in bringing it⁷ and that the OLRB may dispose of a complaint without conducting a hearing.⁸ Nothing in my analysis is meant to imply any expectation that the OLRB will consider the merits of the complaint or intervene in or control the way the union conducts itself in these proceedings, either before the resumed hearings are concluded or at all.

35Does the manner in which the hearing proceeded in 1983 make a difference to the issue? What about the unusual letter that the former Vice-Chair wrote almost 23 years later?

36The circumstances certainly do raise interesting questions, as the letter says, about the role of former GSB Vice-Chairs.⁹ None of those questions was addressed directly in argument before me, however. In particular, it was not suggested that former Vice-Chair’s letter to the Minister had the status of a decision of the Board.

37The 1983 decisions must speak for themselves. The language of the title pages, independent of the bodies of the decisions, is of little consequence to any assessment whether the grievor was granted standing separate from the union. It would be apparent from examination of decisions issued by the Board in the 1980’s and into 1990’s that the title pages of decisions in cases where the union was advancing an individual or group grievance generally described the union’s representative as “For the Grievor” or “For the Grievors,” and the words “For the Union” generally only appeared in the title pages of decisions on what the collective agreement would describe as a union grievance (a designation that does not imply that other grievances are not also the union’s grievances in the sense being discussed here).

38Apart from the way that appearances are described on the title pages of those 1983 decisions, there is nothing in them that is pertinent to this issue other than the passage quoted in paragraph [19] above. There was evidently no ruling that the grievor could be a party separate from the union. Neither of the decisions says that the Board “granted” the grievor party status or “ruled” that she could do anything the union objected to her doing. Certainly neither of them suggests that the grievor’s presenting the grievance herself was opposed by the union. However little Mr. Goudge (as he then was) may have participated in the 1983 proceedings after the second day, the union clearly did not withdraw from or abandon the dispute. The fact that the Board’s hearings continued makes it clear that the union did not withdraw. If it had, if there had no longer been a dispute between the union and the employer, then the Board would no longer have had any reason, or jurisdiction, to continue its hearings.

39Accordingly, there is nothing nonsensical about the union’s position that it agreed to or acquiesced in the grievor’s presenting her grievance herself in 1983, and did not thereby abandon its right to do otherwise in further proceedings concerning that or any other grievance by the grievor. It is apparent from the first of the 1983 decisions that the grievor’s presenting her grievance herself resulted from some exchange between her and the lawyer that the union had retained to present the grievance. The fact that the Board was told about or witnessed that exchange did not transform the outcome into a ruling of the Board. The original panel had no reason then to enquire into or pronounce on the legal characterization of the arrangement that resulted, and there is no indication in its decisions that it did. The fact that the grievor was animated by distrust of the union in seeking to do what she did does not change the fact that she did it with the acquiescence of the union, without the benefit of any ruling that she could do so as a party independent of the union either then or thereafter. If anyone “granted” the grievor the right to present her case in 1983 it was the union. Its having done so did not preclude its doing otherwise afterwards, nor should it.

40In short, assuming without deciding that this Board may in some circumstances have jurisdiction to treat a grievor as a party independent of the union in the hearing of his or her grievance, and despite the able argument of the grievor’s counsel and the unusual circumstances to which that argument referred, I was not persuaded that those circumstances individually or collectively warranted treating the grievor as a party separate from the union in this resumed hearing.

Consequential Matters

41Having determined that the grievor does not have party standing, and because the union and employer do not challenge the constitution of the Board in this matter, there is not now any issue of that sort for me to address.

42Union and employer counsel were in agreement that the next issues to be addressed in these proceedings concern the provision of particulars and production of relevant documents and the scheduling of hearings. If these matters cannot be resolved by other means, they may be addressed in a telephone conference scheduled by the Board for a convenient time at the request of either party’s counsel.

Dated at Toronto this 5th day of February 2009.

(6) If a member or vice-chair resigns or his or her appointment expires, the chair may authorize the member or vice-chair to complete his or her duties or responsibilities and exercise the powers of a member or vice-chair in connection with any matter before the Grievance Settlement Board in which the member or vice-chair was participating. (emphasis added) If it is said that this procedural issue remains governed by the repealed statute under which the proceedings began, rather than by the statue in effect at the time the procedural issue arises, there is then the question whether the former Vice-Chair can be said to have been a “member” who “resigned”, so as to engage subsection 7 of section 20 of CECBA 1980. And even if that subsection of the former Act is engaged, there is the problem that the former Act only contemplated a Vice-Chair’s acting as chair of a panel of three, not alone: CECBA 1980 had no equivalent to subsection 48(12) of the OLRA, which expressly gives the chair of a board of arbitration the power to schedule hearings and deal with other procedural matters without involving the other members of the panel in the decision.

Footnotes

1. 1It is not apparent when the chair of the 1983 panel ceased to be a Vice-Chair of the GSB. As far as I was then or am now aware, he was not a Vice-Chair of the GSB when I was first appointed to that position in 1991.
2. 2That process did not involve any acceptance by the employer or determination by me that all or any of the issues described are properly characterized as matters of implementation or enforcement with which the GSB remained seised after the two 1983 decisions had been issued.
3. 3The issue in Noël was whether a grievor had standing to apply for judicial review of an arbitration award when the union that had advanced his grievance at arbitration chose not to do so. The court found that a grievor had no such standing.
4. 4I received it on the basis that if I concluded my decision on standing might turn on whether or not any of the grievor’s allegations therein were true, the hearing on standing could be reconvened to afford the parties the opportunity to challenge them.
5. 5See, for example, Robert Lake v. Ontario Public Service Employees Union v. The Crown in Right of Ontario, as represented by the Ministry of Community Safety & Correctional Services, Intervenor, [2006] O.L.R.D. No. 1462, 2006 CanLII 13320
6. 6OLRA, s. 96.
7. 7OLRB Information Bulletin No. 12, Sheller Globe of Canada Ltd., [1982] OLRB Rep. January 113.
8. 8OLRA, s. 99.
9. 9The legal issues would include the effect of subsection 47(6) of CECBA 1993: