The realm of the arbitrator

Recent decision expands arbitrator’s jurisdiction to non-bargaining unit employees

Background: Grievance against a supervisor may succeed

In Re Teamsters Canada, Local 419 and Tenaquip Ltd. (Oct. 23, 2002), arbitrator Elaine Newman held that an arbitrator has jurisdiction to issue an order that has a disciplinary impact on a supervisor where the supervisor's conduct constitutes an unsafe working condition.

This decision has recently garnered a lot of attention as it seemingly expands the jurisdiction of arbitrators to issue orders against non-bargaining unit employees. Such matters are generally thought to be within the exclusive jurisdiction of management. A review of this decision and its implications for employers is set out below.

The case: Re Teamster Canada, Local 419 and Tenaquip Ltd. (Oct. 23, 2002)

The union filed a grievance alleging a supervisor had inappropriately disciplined an employee and that the supervisor's conduct was unacceptable. The union specifically alleged that on May 15, 2002, immediately prior to the end of his shift, the grievor was verbally abused and then physically battered by the supervisor. As a result of this conduct, the grievor fell backward, was stunned and upset, but was not seriously injured. Based on these allegations, the union requested the arbitrator to order the employer to "take action" against the supervisor in question.

The employer's response, at the step two grievance meeting, was that the grievor had refused to respond quickly to a direction by the supervisor and that the supervisor's reaction was appropriate. The employer denied the grievor had been inappropriately disciplined or physically battered. The employer's position was that the supervisor had simply handed the grievor a box. If the employee was startled at all, it was probably due to his sleepiness. The supervisor had asked the employee three times to get off his chair and work. The employer contended the employee must have either been asleep or disobedient.

At the hearing the union also alleged the supervisor's conduct on the day in question reflected his general tendency to become abusive and intimidating with other employees. The union further alleged this general behaviour by the supervisor constituted an "unsafe condition" and the employer had intentionally introduced and maintained this unsafe condition in the workplace.

The union based this "unsafe condition" allegation on the evidence of other employees, based on the conduct of the supervisor which allegedly occurred during a meeting with the union on a different matter and based on an admission by the employer which allegedly occurred at that meeting. At this meeting the supervisor had allegedly become inflamed and abusive and had to be ejected from the meeting. After his ejection, the employer had allegedly stated, "I know he is a bully; that is why I hired him."

Preliminary objection regarding arbitrator's jurisdiction

One of the employer's preliminary objections raised the issue of the arbitrator's jurisdiction to issue an order against a supervisor. The employer argued the arbitrator did not have jurisdiction to award a remedy that would infringe upon management's exclusive authority to discipline and manage its business as set out in the collective agreement. The employer's counsel relied on several previous arbitral decisions that supported this view.

The union argued that if the allegations were proven, the arbitrator would be required to fashion a complete and substantive remedy that would effectively address the violation of the collective agreement. The evidence would prove, the union argued, that the behaviour of the supervisor constituted an unsafe condition in violation of the collective agreement and that this unsafe condition had been intentionally created and maintained by the employer.

Therefore the only meaningful remedy the arbitrator could order would be the removal of the supervisor from the workplace. The union's counsel relied upon several previous arbitral decisions, although these decisions were primarily from the public sector, to support their position.

The arbitrator’s decision

In determining this issue, Newman reviewed the previous arbitral decisions submitted by both parties. She also reviewed the Supreme Court of Canada's seminal decision in Weber v. Ontario Hydro which held that the arbitrator has exclusive jurisdiction to deal with all differences which arise out of the collective agreement.

Having reviewed the relevant jurisprudence, Newman held that an arbitrator did not have the jurisdiction to simply punish a supervisor for misconduct. She did, however, acknowledge that there could be situations where a supervisor's conduct constituted an unsafe condition and nothing short of an order addressing the supervisor would provide a remedy for the situation.

In these circumstances, an arbitrator had a duty to fashion an appropriate remedy even if that remedy had a disciplinary impact on a supervisor. As she stated:

“there is an obligation upon a board of arbitration to deal with all disputes or differences between the parties arising expressly or inferentially from the collective agreement, and to grant the labour remedies which will give complete and final effect to the resolution of those disputes and differences. The obligation upon the board to complete that task may, in an unusual case, require that it fashion a remedy which has the effect of limiting a right which management would otherwise exercise, or which has a negative impact upon an individual who is not party to the collective agreement.”

This was a preliminary ruling and to date there has been no decision released regarding the merits of this matter.

For more information see:

Weber v. Ontario Hydro, [1995] 125 D.L.R. 584.

The impact of the arbitrator’s ruling

Employers should avoid testing the limits of an arbitrator’s jurisdiction

There are several key implications of this decision that employers should be mindful of.

First, it is important to recognize this decision is only a preliminary decision regarding the jurisdiction of an arbitrator.

The arbitrator did not issue an order that required the employer to discipline a supervisor or remove a supervisor from the workplace. She only ruled on the issue of whether an arbitrator had the jurisdiction to issue such an order and she determined that, indeed, an arbitrator has such jurisdiction.

Second, there appears to be no clear consensus by arbitrators regarding this issue. Previous arbitral decisions, particularly in the private sector context, provide some support for the opposite view. Until this issue is addressed by a higher court, there is arguably support for either position.

Finally, arbitrator Elaine Newman clearly stated an arbitrator could not issue an order simply to punish a supervisor for misconduct.

As her decision provides, only where a supervisor's conduct constitutes an unsafe condition and only where nothing short of an order addressing the specific individual would effectively remedy the situation would such an order be appropriate.

Overall, employers should avoid testing the limits of an arbitrator's jurisdiction in cases such as this, particularly given the broad powers provided to boards of arbitration in the Ontario Labour Relations Act, and the expansive interpretation of these provisions by the Supreme Court of Canada in Weber.

Where the facts confirm a supervisor has harassed or bullied a bargaining-unit employee, employers should attempt to address the situation rather than risk having an arbitrator address it for them.

This in-depth look at unions was provided by Joe Morrison, an employment lawyer with Goodmans LLP in Toronto. He can be reached at (416) 597-4203 or [email protected].

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