Notified of the employer’s intent to reduce hours and effect layoffs in two of its nursing homes, the union scheduled a meeting with the employer to discuss and explore the circumstances behind the layoffs as contemplated by the collective agreement.
In order to prepare for the meeting and ensure a meaningful review, the union asked the employer to furnish it with documents, including facility reports, financial documents and other reports pertaining to funding arrangements.
When the employer refused to provide the documents, the union grieved, charging that the employer’s actions made it impossible to conduct a meaningful review of the layoffs according to the terms of the collective agreement. Consequently, because the employer was in violation of the collective agreement, the union argued that the layoffs should be declared void ab initio and rescinded.
In support of its argument, the union cited an earlier decision that addressed the same issues between the same parties. Similarly, in that case the union grieved the employer’s refusal to supply necessary documentation.
Implied requirement
In that case a majority of the arbitration board found that even though there was no express requirement in the collective agreement to produce such documentation, such a requirement was implied by the obvious intent of the collective agreement provision that there be a meaningful consultation.
Moreover, the arbitrator said that in that case, the majority of the arbitration board “went on to conclude that the right to a meaningful review, including the right of access to the type of documentation requested, was a substantive right and that the layoffs could not be implemented until [the collective agreement] was complied with. As a result, the majority concluded that the layoffs were void ab initio and were rescinded.”
The employer conceded that the fact situation was similar and that, if the arbitrator was to follow the previous award, the facts in the case would indicate suggest that the current layoffs were also void ab initio. However, having informed the arbitrator that it had applied for a judicial review of the previous decision, the employer argued that the decision was wrong in its conclusion that the collective agreement compelled the employer to produce the requested documents. Even if the collective agreement required the production of the requested documents, the previous award erred when it deemed the layoffs void ab initio, the employer said.
Deference to earlier awards
While not bound by them, arbitrators accord some deference to earlier awards and particularly those awards that deal with the same parties and the same collective agreement under review, the Arbitrator said.
“That is not to say that an arbitrator is required to follow an award previously rendered under the same collective agreement. Indeed, that is not the case. However, some arbitrators have said that they would not decline to follow an award made under the same collective agreement unless it is ‘manifestly’ or ‘clearly’ wrong. Essentially, the refusal to follow previous awards under the same collective agreement would create instability and uncertainty in a collective bargaining relationship. Therefore prior awards under the same collective agreement should not be departed from without hesitation and careful deliberation.”
The previous award contained detailed and considered analysis of the issues, the jurisprudence and the language of the collective agreement, the arbitrator said. “The cryptic submissions before me have not persuaded me that I should decline to follow the conclusions reached in the Newman Award regarding the proper interpretation [of the collective agreement] or the consequences of its breach.”
The arbitrator ruled that the employer was in violation of the collective agreement and ordered that the layoffs be rescinded.
