In Direct Energy Marketing Limited and Unifor, Local 975, 2014 CanLII 657, an arbitrator refused to depart from a prior arbitral award despite his preference for a contrary line of authority. The prior award – Direct Energy v Unifor, Local 975, 2013 CanLII 94391 – involved a similar grievance alleging a failure on the part of the employer to comply with a letter of understanding and the undertakings made while negotiating it. The board in the earlier grievance had admitted in evidence a surreptitious recording made by the union during bargaining. The union argued that evidence of employer representations made in bargaining were admissible on the basis that they were relevant to and would be helpful in determining the issues before the board, either by resolving an ambiguity in the language of the LOU or by creating an estoppel.

Despite his view that admission of surreptitious recordings would be harmful to labour relations between the parties, the arbitrator concluded that the importance of consistency in interpretation of the parties’ collective agreement required an approach of deference to the prior decision. An unfair labour practice complaint filed by the employer with the OLRB and arising out of the same facts remains outstanding.