At times, during the course of a hearing, the penny will drop and the writing on the wall will become clear - you cannot win. Something happens. Perhaps, a witness implodes or the adjudicator gives the impression that he or she isn’t buying what your selling.
So what do you do? You proceed and hope that brilliant advocacy (or a miracle) sways the likely result. In practice, while this can happen, it is tough to change the course of the ship once the rocks are in sight. “The facts are what they are” as I was told at the beginning of my career.
The other course is to withdraw the grievance.
But that is not without its challenge - is the withdrawal with prejudice or without prejudice? Once the hearing begins, is the arbitrator required to dismiss the grievance, rather than permit its withdrawal?
The issue was considered in Albright Gardens and ONA (2015), 122 C.L.A.S. 74 (McNamee). After the employer closed its case, and the union advised that it was not calling evidence, the arbitrator adjourned the hearing to allow the parties to make written submissions. In lieu of written submissions, the union wrote to the arbitrator advising, in part:
I write to inform you and your client that ONA is withdrawing the above-noted Grievance without prejudice or precedent to either party's legal position on the interpretation of the collective agreement. I note that ONA has provided an estoppel notice to the Employer with respect to ONA's intention to rely on the strict wording of Article 12.02. I further note that ONA may be addressing this issue in the upcoming round of bargaining between the Parties.
Not surprising the employer took the position that “it is too late for the union to withdraw the grievance, and that it should be dismissed. It submitted that the union ought not to be able to listen to the evidence in an arbitration, and then seek to withdraw without prejudice, retaining the right to re-submit the matter to arbitration.”
This seems like a sensible argument (to me at least).
The arbitrator disagreed with the employer and concluded:
As I understand the thrust of arbitral jurisprudence with respect to this issue, I should not take it upon myself to dismiss a grievance when a party wishes to withdraw it from arbitration. Instead, I should leave it to any subsequent arbitrator or arbitration board to determine how any grievance, including the current grievance, which is placed before him, her or it should be disposed of. I concur with the results in those cases, and accordingly these proceeding are terminated without prejudice to any position that either of these parties might take in a subsequent arbitration.
There are many cases that deal with this issue. On the one hand I understand the reluctance to foreclose future, possibly unanticipated proceedings. On the other hand, it would be nice, from a labour relations and cost perspective, to have some direction on the impact of the withdrawal on future proceedings.
The employer in the Albright case argued in the alternative, that the arbitrator:
... should issue a decision with respect to the withdrawal request, and provide some context as to what the matter was about and when the grievance was withdrawn. It says that a decision outlining the grievance, the facts and the stage in the process when ONA decided to withdraw would go a long way to prevent duplicitous litigation.
To a significant degree, the arbitrator did this.