• Abusing the Grievance Procedure
  • April 22, 2010 | Author: Richard G. Petrie
  • Law Firm: Stewart McKelvey - Fredericton Office
  • In Fanshawe College v. Ontario Public Service Employees’ Union, Arbitrator Shime allowed the College’s grievance over the union’s abuse of the parties’ grievance arbitration process and the Arbitrator declared that OPSEU had acted unfavourably and made improper use of the grievance procedure when they filed 572 grievances, most without any particulars, in order to obtain staffing information from the Employer about the increased use of part time professors at the (apparent) expense of full-time staff.

    Facts

    The parties’ collective bargaining agreement, at Article 2, required the College “to give preference to full time positions over part time positions”.  The agreement also had an article which required the College to provide the rationale for any sessional appointments, as well as other information regarding the distribution of work.

    When student enrolment rose, and full time positions declined, the union filed 572 separate, identical grievances over 6 academic terms on behalf of part time professors, alleging the College had breached Article 2.  The College then requested particulars of the grievances, and the Union refused to provide them, as they did not have any particulars on the majority of the grievances and had, in fact, filed the grievances to obtain further information on the College’s adherence to Article 2.

    The College, in turn, filed a grievance citing the grievance and arbitration article, and alleging that the Union’s grievances were an abuse of the grievance procedure and a failure to act reasonably and in good faith in administering the collective agreement.

    Arbitration decision

    Arbitrator Owen Shime referred to a decision of Paula Knopf in a case involving George Brown College and the College’s obligation to provide information under Article 7.  (George Brown College and OPSEU.  Arbitrator Knopf had indicated in her award that:

    ...when and if the Union raises questions about the appointments [non-full-time], the College must be in a position to explain at the article 7.02(vi) meetings the operational requirement and/or rationale that it invoked which deciding to hire a non-full-time person.  To this end the Union is also entitled to request that the College provide a list of courses taught by non-full-time employees, their course outlines and the timetables of faculty who taught those courses.

    Notwithstanding that there is a positive obligation on colleges to provide information to the union regarding the preference for full-time appointments, Arbitrator Shime concluded that the union’s strategy of filing 572 individual grievances was an abuse of the grievance procedure.  He contrasted the George Brown case where the union filed one grievance under article 7, to the union’s multiple grievance strategy.

    The filing of so many grievances to obtain the same or similar information that might be obtained by a single grievance, is an unreasonable use of the grievance arbitration process.

    Accordingly, Arbitrator Shime allowed the employer’s grievance and issued a declaration that the union’s filing of individual grievances was improper use of the grievance arbitration process.

    What this means to you

    While these facts were extraordinary, unions can be open to claims for abuse of process, should they choose to improperly exercise their right to grieve.  While often overlooked, the Employer’s right to file a grievance can be an effective way to deal with an unreasonable union approach.