CAW LAW REPORT
July 3, 1991
Hundreds of arbitration awards are published every year in the Province of Ontario with respect to employers in both the Provincial and Federal jurisdictions. Indeed, a review of the Canadian Labour Arbitration Summary publication reveals the number, breadth and scope of arbitration awards issued in all jurisdictions in Canada.
From time to time, an arbitrator will render an award that not only is disappointing because the union's grievance is denied, but further, the award completely rejects the union's argument and ignores what the union believes are principles of fairness, justice, and proper contract interpretation. What is to be done when such an award is received?
Experience tells us that the task of successfully quashing unsatisfactory arbitration awards in a hearing before a higher court is an extremely difficult task. In Ontario, if one were to take a disappointing arbitration award to court (ie. Ontario Court-General Division-Divisional Court Branch) one would prepare and file "an application for judicial review". This application is prepared according to the provisions of the "Judicial Review Procedures Act".(1)
Why is it so difficult to quash an arbitration award? The answer is one which, in most cases, makes very good common sense. Superior courts, for the most part, have decided that arbitrators should be left alone to do their job. Courts should not readily interfere in the work arbitrators do. Indeed, a rule, in this regard, has developed. The rule is that the scope of a court's judicial review of an arbitration award is restricted to a determination whether or not the arbitrator had jurisdiction to hear the grievance and whether he/she exercised that jurisdiction in a patently unreasonable manner.
The concept of jurisdiction has been explained by the Ontario Court of Appeal in a functional and pragmatic way. The Ontario Court of Appeal says that the issue of an arbitrator's jurisdiction can be defined by the following statement: Is the grievance one which the arbitrator should be hearing according to:
1. Section 44(1) of the Labour Relations Act which reads as follows: Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration, or alleged violation of the agreement in question as to whether a matter is arbitrable.
2. The purpose of the Labour Relations Act which is to foster collective bargaining and the collective resolution of disputes outside of court.
3. The statutory provision that arbitrators should determine all disputes arising out of or in connection with a collective agreement and are generally statutorily mandated to do so.
4. Arbitrators are expert in the area of labour relations.
In essence, the Ontario Court of Appeal has decided that an arbitrator's jurisdiction is pretty broad. And while arbitrators have broad jurisdiction to hear grievances, the Ontario Court of Appeal has decided that they will only lose jurisdiction if they make a patently unreasonable decision. This principle was set out in an important case involving the CAW-Canada called Re: Dayco Canada Limited and the CAW-Canada and Brown (1990) 74 O.R. (2d) 648.
This case is on the way to the Supreme Court of Canada. It is my view that the Supreme Court of Canada will uphold the rule that an arbitrator's decisions is protected unless it is patently unreasonable.
All this being said, it is important to note those occasions when an arbitrator's award is taken on judicial review, particularly when the court in question approves and endorses a progressive arbitration decision.
Courts are not known for their progressive view of labour relations jurisprudence. Therefore, special attention should be paid to the positive decision of the Ontario Court of Appeal in a case called Canadian Union of Public Employees, Local 43 v. The Municipality of Metropolitan Toronto (1990) 74 O.R. (2d) 239.
In this case, the Court of Appeal decided that workers may grieve the reasonableness of a company rule before it is implemented, broken by a worker and discipline is handed out. The decision also confirms the obligation of an employer to act reasonably in exercising its discretion or in administering the terms of the collective agreement between it and the union. The facts of the case are pretty straight forward. The collective agreement made between CUPE Local 43 and The Municipality of Metropolitan Toronto stated that the employer had the exclusive right to manage its operation and undertaking and to discipline or discharge, with the proviso that discharge or discipline without reasonable cause could be the subject of a grievance. Prior to 1982, ambulance drivers in the Municipality of Metropolitan Toronto, who are represented by CUPE Local 43, could use their own judgment as to whether or not warning lights and sirens would be used when responding to emergency calls, provided the calls did not involve life threatening situations. In June of that year, however, the Municipality ordered the use of lights and sirens in all emergency calls, in order to ensure that individuals could not be blamed if the system failed. This change in policy was defended under the Management Rights clause of the collective agreement, the essence of which is set out above. Without waiting for disciplinary procedures to be imposed if they violated the new rules, six grievors, all ambulance drivers or ambulance attendants, filed grievances because they asserted that the new rules were counter productive, unreasonable and unsafe for themselves and the public. The majority of the three person arbitration board ruled that it had jurisdiction over the grievances because of the reasonable cause for discipline provision in the collective agreement and found that discipline under the new procedures would be unjust as no substantial reason could be offered for the new rules. The majority also agreed that the union should not have to wait while workers were disciplined for disobeying a rule in order to challenge the rule at arbitration.
The employer took the arbitration award to judicial review before the Ontario Divisional Court. The award was quashed by the Ontario Divisional Court on the basis that the right to grieve an unreasonable exercise of management rights accrued, not when a rule was established, but only after an employee had been disciplined. Otherwise, the Ontario Divisional Court stated that every policy, decision, or directive of the employer would be subject to a grievance and arbitrators would be dealing with discipline in the abstract. The decision of the Ontario Divisional Court was taken to the Ontario Court of Appeal.
A unanimous Ontario Court of Appeal reversed the decision of the Ontario Divisional Court and agreed with the finding of the majority of the arbitration board. The Ontario Court of Appeal said the union was justified in launching a grievance before the rule was actually disobeyed since the whole point behind the "work now, grieve later" principle was to avoid anarchy in the workplace. The Court had the following to say about the "work now, grieve later" principle.
"The whole purpose of the rule is to ensure responsible conduct on the part of employees; even in situations where their fears about the wisdom of an order may ultimately be justified, the rule demands that they conform to the best of their abilities unless and until they are able to grieve successfully. Second, the fact of insubordination places an immediate and difficult onus on the employees, they are expected not merely to attack the rule, but also to justify on the balance of probabilities their response to it.... The union never alleged that the June 10th, 1982 directive would inevitably lead to accidents or endanger the health and life of specific employees. The thrust of the union's submissions before the Board which the majority accepted, was that the directive would cumulatively and incrementally increase the risk of hazard by depriving the drivers of their discretion to respond differently to different road, traffic and type of emergency combinations. This approach was sufficient, in the view of the majority to attack the reasonableness of the rule. However, it is doubtful that this approach would have been as successful in justifying avoidance of the rule in a particular instance. This would be especially true if the board perceived that a grievor was "playing chicken" with the life of a patient in order to force the issue to arbitration.In short, it would have been irresponsible for the union to have brought this grievance forward by means of the health and safety exception to the general rule of "work now, grieve later". Workers should not be faulted or penalized for refusing to put their jobs, as well as their long term safety at risk, or for adhering to the principle that the employer must remain in control of the workplace, even when its management directives may be deemed unwise later. If the purpose for the "work now, grieve later" rule is to avoid insubordination an anarchy in the workplace, the obvious trade off is that employees in an unionized environment will have the right to grieve rules, would likely have lead to discipline, even as they continue to obey them.
The Divisional Court found that the Board had been patently unreasonable in hearing a grievance based on discipline in the abstract. However, on the strength of the foregoing, it seems clear that under an obey now, grieve later rule, an arbitrator is practically required to take jurisdiction to hear a grievance against a directive, at least in a case where breach is likely to constitute insubordination and subject the employee to disciplinary action. In my respectful opinion the Board, in taking jurisdiction, acted in accordance with both the letter and the spirit of the collective agreement.
The Court also addressed the issue of management's duty to act reasonably in exercising its discretion and administering the collective agreement. After reviewing previous decisions issued by the Ontario Court of Appeal, the Court held that indeed the employer was required to observe a standard of reasonableness. The Court concluded:
"The final union argument that should be noted is based on a notion of reasonable contract administration. The Union relies on the decision of this Court in Greenberg v. Meffert (1985), 18 D.L.R. (4th) 548. Speaking on behalf of the Court, Robins J.A. held that the employers discretion had to be exercised reasonably, honestly, and in good faith. It is difficult to apply this case in the context of collective bargaining. Never the less, it is true that a collective agreement is an intricate contract which attempts to reflect the outcome of bargaining on a myriad of issues. It is also true that parties intent on reaching a settlement do not always have the time, the incentive, or the resources to consider the full implications of each and every phrase. There is, therefore, a place for some creativity, some recourse to arbitral principles, and some overall notion of reasonableness."
What would you say if an employer demanded that proceedings before a Labour Relations Board be taped and transcribed by a court reporter and that the "official" transcript should become part of the record of the proceedings?
The legalization of proceedings before Labour Relations Boards and arbitration boards has been the subject of concern for many years. A recent decision of the Ontario Labour Relations Board involving the CAW-Canada and its Local 303 demonstrates that the Ontario Labour Relations Board is attempting to maintain the more informal setting of administrative tribunals. In a decision entitled John Kohut v. CAW-Canada and its Local 303 and General Motors of Canada Limited (October 5, 1990) the Board reviewed an argument made by the complainant worker Kohut that the Board had no jurisdiction to deal with his complaint of unfair representation because the Board had not arranged for an official record of its proceedings. The complainant also submitted he should have the right to make his own tape recording of the proceedings instead of hand written notes. Both the CAW-Canada and General Motors opposed the complainant's request on the grounds that hearings before the Board are meant to achieve an informal, quick and inexpensive resolution of complaints, which would not be encouraged by formal transcripts.
Vice chair Susan Tacon decided that the Board was not obliged to make an official transcript of its proceedings and that its failure to do so did not mean that the complainant's rights had been infringed or that the Board had lost jurisdiction. Vice-chair Susan Tacon also found that neither the Labour Relations Act nor the Statutory Powers Procedure Act oblige the Board to compile such transcripts. Vice-chair Tacon decided:
"In the Board's view, the production of transcripts would represent an incredible drain on the Board's financial resources and critically, without and real benefit to the process resulting therefrom. Indeed, the Board concurs with the concerns expressed in the cases referred to that the adoption of such a practice would interfere with the expeditious and efficient resolution of labour relations disputes. Moreover, a uniformed practice of verbatim recordings of Board proceedings would introduce an unnecessary and unhelpful degree of formality to the proceedings. Thus, the Board is not persuaded that a verbatim record of its proceedings should be maintained as an exercise of the Board's discretion and declines to do so."
The Board did rule that the complainant could record the proceedings himself, as a substitute for the taking of hand written notes, if it was done in unobtrusive fashion and provided the tape was not played back to witnesses or played during submissions. In other words, the Board ruled that such a tape recording would be viewed as having no greater value than hand written notes and could not be used to resolve disputes over the testimony of witnesses.
Vice-chair Tacon wrote in her decision:
"Critical to the Board's decision to permit a tape recording is the requirement that any such recording be unobtrusive. That is, the taping of the proceedings will not be permitted to interfere with the Board's conduct of the hearing pursuant to its authority over its practice and procedure in section 102(13). The hearing, including the giving of testimony by witnesses, will be conducted as if no tape recording was being made. The tape recording may not be played back to a witness or during submissions. The complainant's representative may state orally to a witness (or to the Board, in its submissions) his version of testimony given earlier, and if that version is disputed by another party, it is the Board's view which will be determinative. Such a process is consistent with the Board's long standing practice. The fact that the complainant's representative may have utilized a tape recording as an aide memoir rather than long hand notes is irrelevant with respect to the Board's proceedings. Any such recording does not constitute an official record of the proceedings and stands no higher than a parties notes for all purposes."
In late May, 1991 a panel of the Pay Equity Tribunal rendered the first decision on the question of the gender neutrality of a comparison system. The Tribunal upheld the Ontario Nurses Associations's claim that the employer, the Regional Municipality of Haldimand, Norfolk, had failed to bargain in good faith and had adopted a gender bias comparison system. The following is an outline of the rather lengthy decision of the Tribunal on the questions of the gender neutral comparison system and the bargaining process for the purposes of pay equity.
The Tribunal ruled that the parties had a duty to bargain the components of a gender neutral comparison system. The Tribunal provided an outline of the individual components of the gender neutral comparison system and provided indicia that the Tribunal would consider in assessing the general neutrality of each of the components.
(a) Collection of Job Information
With respect to the collection of job information, the Tribunal noted that "since the Act is specifically addressed to the historical undervaluation of women's work, special attention must be paid by the parties to making visible those aspects of women's work which have been unrecognized. Given that most men and women perform different job, with different skills and job content characteristics, one of the initial and key requirements of a gender neutral comparison system is to make visible those job characteristics, using the statutory criteria, that were previously not visible and thus not valued. The system must account for and reflect the differential job characteristics of both male and female work and positively value them. The parties negotiating a comparison system must determine how to best capture the job requirements and the value of the work of the job classes to be compared".
The Tribunal commented on the abundance of statistical evidence lead by both parties at the hearing. The Tribunal stated that "with the greatest respect however, we do not find statistical analyses are tests of gender neutrality. As the evidence clearly indicated, statistics are a product of their underlying assumptions, both in type of analyses used and in interpretive approaches, and the experts in this case spent considerable time and energy outlining their professional disagreements."
After analyzing the questionnaire used by the employer to determine job information, and by considering each sub-factor of the questionnaire in great detail, the Tribunal found that the questionnaire and the comparison system did not capture the job content accurately as required by section 5 of the Act. In particular, the Tribunal ruled that the comparison system did not make visible the work of the female job class in that establishment.
(b) Deciding the Mechanism or Tool to Determine How Valuable Attached to the Information
With respect to attaching a value to the work performed, the Tribunal noted that section 4(2) of the Act specifies that systematic gender discrimination must be identified and that "this imposed an obligation upon the parties to pay equity negotiations to ensure that the value they jointly attach is gender neutral, addressing directly the requirement to identify systematic discrimination."
(c) Applying the Tool or Mechanism to Determine the Value of the Work
Although the Act does not require the parties to use joint committees, the Tribunal approved of the employers proposal for an equally represented union nominated and management nominated joint committee, representative of both sexes in various job classes. However, the Tribunal warned that the consensus of such a committee does not necessarily eliminate gender bias in a comparison system; "We find that the parties must be alert to the fact that historical attitudes about the value of women's work can continue to operate in a committee situation regardless of representation. Consensus in and of itself does not necessarily eliminate traditional bias' and stereotype notions of women's work.... Agreement on the valuing of jobs by representative committee members can help to reduce bias in valuing work. We also find that the training of the committee is a key requirement. Where there is a job evaluation committee, it is essential that there be adequate training in bias free evaluation in that members develop a conscious awareness of the attitudes and biases people bring to point valuing."
(d) Making the Comparisons
The Tribunal declined to comment on this particular component of the comparison system as in the case before it, the female job classes had yet to be compared to the male job classes.
The Tribunal cautioned that even if the parties were to correct the deficiencies identified by the Tribunal, that gender neutrality was not necessarily guaranteed. The Tribunal stated "the Act is aimed at eliminating gender bias that can be identified, and directs parties to take affirmative action to narrow the wage gap. Gender neutrality must thus be assessed in both the design and the implementation of the comparison system to be bused for pay equity purposes. The standard of gender neutrality is one which will further evolve as we acquire more experience in how decisions and collection and valuing of job content make visible and value women's work.
In considering what remedy to be appropriate to the facts, the Tribunal noted that the Employer unilaterally implemented the first steps of the Mercer system without recognized the obligation to bargain the comparison system with the Union. Consequently, the Tribunal was reluctant to only order amendments to the Mercer system. The Tribunal did find that the Mercer comparison system was not "so lacking in gender neutrality that it is irreparable." In ordering the parties to negotiate in good faith and endeavour to agree upon a gender neutral comparison system and to table a proposed comparison system within sixty days, the Tribunal left it open to the employer to consider amending the Mercer system.
See: ONA Regional Municipality of Haldimand-Norfolk (29 May, 1991) P.E.H.T.
1. N.B. Procedures regarding judicial review in other provinces in Canada are quite similar to the procedures found in Ontario. Further, arbitration awards in the Federal Jurisdiction may be taken on review in Provincial Courts like the Ontario Court-General Division-Divisional Court Branch.
Click on the scales of justice to return to the Legal Documents index!