HomeMy WebLinkAbout1992-2413.MacDonald.93-10-14180 DUrJOAS STREET WEST, SUITi 2100; ‘TORONTO, ONTiRID. M5G 128
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2413/92 ’
iN THE MATTEli OF AN ARBITRATION
: . -Under :
THE,CROWN EMPLOYEES .COLLECTIVE BARGAINING ACT
!
BE'kWEEN
Before.
THE GRIEVANCi-SEhTLEMENT.BOARD <;:
k.
ATU (MacDonald)
_.
- and -
Grievor
The Crown *n Right of Ontario (Tqronto‘Area Transit Operating Authority)
BEFORE:
FOR THE
'GRIEVOR
,FOR THE
EMPLOYER
HEARING,
i ; H. Waisglass.
W. Rannachan:
H. Knight . . .
Employer
Vice-dhairperson
Member . Member
S. Clarke
President & Business .Agent
&TV Local 1587 .,
G. Lodge - ' '..
Manager, Human Resources. I :
Toronto Area Transit Opera‘ting Authority
-August 19; 1993 2.
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: OECISION
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,Larry MacDona'ld grieves that his two-d ay s:~spension L3Lrne 23 & 241 by Zetter
dated June ;-72, J.992, is-without just cause. This grievance caqe TD fiearirg ‘on
August 19, 1393.
At the outs&t the Employer raised the preliminary issbe of timeliness. ft
claims the appilcatron for heakjrq was ‘mcde to the GSB after the mandatr,ry
.tlme liirrits of the collective agreement had expired. eccording to the clearly
expressed requirements of the coitectilde .agreement, the g’ricvacce is deemed t0
be abandoned if the ayp! icat ion to the GSB is net made wthin.those explicit
time limits. The Employer suktlits'tbat this abanknment of the grievance
ccinstitutes a f'lnal determination of the grievance which renders,it _.,
, inarbitrnble. The Employer subkits that the Board does no< have.jurisdiction
to,proceed In this matter. It lacks jurisdiction to proceed an a grievance
which has been finoliy determired ir: accoi*dance.with the grievance procedure
in the,coilective agreement- The Board decided to heur facts and argument on
this issrz before proceeding on the merits.
The re?evunt sections of =Article-4- Gr\evanck Procedure" of the Collective
-Agreement, which was in effect at all material tities, are as follows:
x 4.31_4) If the grievor is not satisfied with'the decision of the
applicable Branch Director or his designee, the Union may apply to
the Grievance Settlemerit Boa'rd fo?.arbitrotion of the grievagce
within forty (48) calendar dcys of the date the grievor received.
the decision. ThG' Corporate response to such application will be
the sole respanslbility of the Corporate Humc~ Resources Office.
It is further understood and agreed t&t any remedies' reached and
agreed upon prior .to the matter being adj'udlcated by‘the Grievance
Settlement Board, between the Union and the Human Resources
Office, shall be-final and binding upon ail parties,”
r 4.7 The rime limits contained in thisarticle may be extended by
agreement of the parties. .IF any such agreement' is not m&e ifl
writing, the burden of pro?jing the eristence of any alleged
agreement shall be on the party asserting it.
:
(6 +12 (1)
I IjQRRY LJA I SGLI?S,S 416 ‘52.5 7837 P.‘84 ‘.
.
It is understcd card agreed that fuilure.9f the union to _
'advance a grievatlce *ithin the agreed t<me frcmes at anj,
step of the grievance procedure shall constitute abandonment
of~such' grievance and;
A d.12 (2) Failure of management to. respond to c.~~cievacce at any step
o,f the grievatlce procedure shall constitute allowance of the
I . grievance.m
The Gourd agrees that the tim e Ilmits'are clear'!y man,dator$. iMe.note .' ,.
particuiarly the dual aspects cfthe,mandatory requirements of 4.12, in both
subsections (1) and (2). ~.
The Employer sdmits that by their established practi,ces the padies have
adhered strictly to maklng.alV agreements on time-'limit extensions in writing,
without exception. The' Employer submits, and the Union does not deny;that it
has never.refused a Union request for a time-1imlt extension, and that the
Union bus never refused such Employer requests. It is agreed fact that for
~this'particular grievbncc [MacDonald] the Union did not request an extension.
It is dgretd fact aLso that the-parties had made a wri,tten agreement..for a
time extension on this grievanc,e, but it appli&only to the previous step of
the grievance procedure: "As agreed,. due. t,o vacation time and scheduling
poblems this St'ep II will be scheduled in early.August after all parties have;
returned." [Exhibit 5 (l)] The Step II meeting was held on August 20, 1992,
when the grievor received th e Employer"s decision to deny the grievance.
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Article 4.3 (4) of the Collcc~ive Agreement nrovidPs that the-Union may ab~iy
fer arbitration within 40 calendar dovs of that date; and Article 4.12.m .
deciures the arievance '&-be abandoned if the Union dqes not app'lv for
arbitration. within that aareed time frame. ,
Consistent with its regular practice, by letter dated October,l6,'1992,' the
Employer informed the Union that the grievance of L. MacDonald has 'exceeded
the forty (40) day time Limit, tind therefore these files have been closed in
accordqnce with Article 4.12 cl>" [Exhibit S(2)]
:
HQRRY WAISGLtiSS 415 525 7837 P-05 : .t
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?$ --cc
1 ,$
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The C:n on’s application for arbrtrntinn of the PlarDonald gt-ievance was dated
November 9, 1992,, and date-stamped November 13, 1992, as received by the GSB.
[Etihibit 5 (A)] It is fact,that the opplicat~c~~ wxs net mode withIn the
required 40"ca:endar-day period, it is agreed fact that the. Urt~sn did noz: I
?+equest an e.xtension"of this. time IxI<~. On' the r'.rrcts, we oaree._that the
ar\e$ance had been abgndoned &fort the Union applied to the GSB..Therebv, we . --
find that the-ar&vance was finally determined tinder the arievance procedure \
before the apolication was mode TV the GSB,
The Union submits that, the application for nrbitratioh was delayed because the
grie~mr was wmting for a WCS decision on an appeal regarding his benefit
claim under the Workers' Compensation Act, which he.beljeved was material to
his grievunce. tlowekr, as the Uni,on reports, the WCB decision on this appeal
was reported to both the grievor and the Employer by lettkr dated September
23, 1992. The grievor acknowledges he had 'received the WCB decision within a ;
3 few days after September; 23, and-&on after that he .had discussed it with
his Union steward. However, he did not give it to Simon CIahe, the Unibn
President, untiI.,Qctober ,19, 1992. [MacDonaid's covering memo transmitting
"A photocopy 'of the WC5 decision" is time and date-stamped Yl.9 Oct. 9.09”.J
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It appears that.if MacDonald hcjd delivered the WCB letter to Clarke pr&nptly
after reccivi;;g it, Clarke may have had the opportunity to'arrahge for an :
extension bef&e the expiration of the time limits, or at least before October
%th, the date-of the Employer's notification to the Union that the.gr:evoace
f11e WQS closed. ?!n any event-, neither the grievorl.nor the Union submitted
the grievance to the GSB within the required time limits.
Mr- . Clarke , the Union spokesperson, submits 'that the time limits do"not a&Iy
ievance [claimi^ng susdension withotit just] because it is submitted
pursuant to SectIon 18 (2) subsection cc> of the Crown Ea~lgvees
Collective Baraainina Act rCECBA1, which provides:
to.this gr
to the GSB
I
6 In iddition to any other rights OF grievance under G ~oltective
agreement, an employee claiming ,...,.. .I ,
416 525 7837 : P.06
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CL my pkxess such tiatter in accordance with,the'
grimqr!ce procedure of the caljective agreement. ar!d
failing final determination under.such procedure; the
matter moy'be-processed In accordance-with the procedure
for final detetminbtion.cpplic~ai7Ie un&zr SeCtiOh 19.”
~ssion is that: the time limits of the collective agreement
riektnces processed cn&~ Section I.8 (2) of the CECRA$wh<ch
establishes an ~independent statutory right to grieve on such 'specified 1ssue~,
quite apart frum the requirem5nts.M the cpllective aQreement. The'Union
submits that the .CECF3A sets no time limits for the arbitration of s~ich
stctutory grievances. That would imply that a dismissal or di-sciqlinary
grzevance, as example, could be filed effectively years after the event. : .,. -.
WC dn nbt agree. The.CEC6A s&?rifically provides that.srkh grievances are t.o ..'
be prcceised' "in accordance with the grievance- procedure of 'the'cnllective
agr&ement",. The. time limits are integral to the grievance procidure and -
therefore the grrevckce'must be processed within those requirements..
, : : . -
'the collect,lve ugreement as's whole, which regulateq'~ll -bs@cts of the :
relat;onship between dn etiployer and union,'and particulcrrly in respect, to
disciplinpry matters, !s subject to stckutory imperdtives. I! should--be.noted
ihat among the matters on vhich a union and employer ark' "outhtir~red to'
bargan@,, by Section 7'of the CECBk, are Yt?e procedures applicable to the
prcxes~s~ng of grievances". Jt is our iudamcnt .that the CECBA .imDlies ' _. ., ,,
rel;lsonable $k\.imits for‘the tvocessins of'k &pension arievance IaS well ,.
as certain other statutory grievcnce claims provtded for in Section l.8 (Z)].
,And what time limits cau?d be more reasonable.than the time limits which +'hc
.p&ties themselves have aw@n in their own collective agreement?
we find therefore that the mandatory time limits of the kl'lective agrcexnk
are reasonable and appli'cdbie.
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I-(FtRRY WA 1 SGLASS 416 ‘525 78.37 P.81 0
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ihe statute gives the grievor, uin arfditibn to any other- rights of grievance
under a collective agreement”, .+ -he right to Uprocess? his suspension grievance
“‘in c~rc<~t’dWlCe with the griTwInce ~roctdut-e of. the c:ol- lective‘ agr~ee~~ent”. Ar)d
furthsr, . "fai-ling final detehination under such procedure" he has the Clght
to hvc his gr%bvdrlc-e ur*t;lt rxiied by the GC;B.
Clearly, -he has tk right to
cWiitr<&ion only I? th? ~r~r?tinntt~ is ncrt flno? ly ll~t~r~rltin~d’~~r~r-ilp~ thr
procedure. .A grievance which ho s been. settled, withdrawn or abandoned is a
grievance wh.ich has been finally determined.
tie fir&that kction 18 {2) of the CECi3A gives the grievor,& right to have
his grievance processed in accordance with fhe vat-td requiretnents of the
gricvancc yFroc’kiul*e., i.~xIti~ir~g its time Ii~;rils, I Tht li,rrt, li~rri!s ui-t vilu'i o,*,,i
valid components of the procedure, The legislature cotild not have intended to
seriwsly impnit- the procedure by-the removal of its time. limits. Nothing in
the statute permits us to nullify the time limits. The statl;:? gives th'e '
grteuor the rlaht to arieve, gc does not give the grlevok. tne ,rqnt at. .
‘exemptim fran the valid GUI rcrncnls~ aT ltsc ccl1 Icr: lik ~ijt~+t~;i~~r~i,
pcr?lcularly the time Iiniits. The statute does not give the grievor the right
to ‘arbitrate a grievance which has been finally determined oy settlement,
withdrawal, at- abandonment. An abandoned grievance is a finally-determined
grievance. The statute does not give the CSB.the jurisdiction to proceed on a
orip.vcnnr~. whlc.h.hns hewn finnlly RetprminPci with?n the lmtf111 rrq~:itwrwntc; nF
the procedures.
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collective agreement do not~capply to this SUSp~~SlGr-, grievance beCaUSe tt?e
right- tp grieve a s1,s&&n is a stat i!rnr-y right as distinct from a
coilect~ve-agreement right. Neither the Union nor the EmpI&er submitted a&
authorities on this issue. There is, howel/er, authority to support, the Un1o;:'s.
rLh?lis~ton in prcviou?ly dcc1dtd cclscs. Tile '5l)ur.J' !tcts previously canvassea the
issae in a,number o? cuscs: in Keelinq’GSB 45/78 {Pritchard),
:he SH?jlMJl ’
decistoi!, which WQS -follow&d Gthout. qpzstion by Viea& GSB 354/88 (Devlin:J;
$abliak CSB 1711PX (i3nrrett); pi Pa~rsla GSB S1/90 (Samue.Is>; .QS well as m&y
uther cases wntch we have not examined.
~~ptoyee to rcjcct the outcome .ctf th& grTIc;'at'iLe pruresu und to curt:, ~0, ii~tt
procedLi,re fdr~arbitratic~t!"; and furthermore, that this unqualified and
u’nrestricted sktutorq, right to arbiti:ation nullifies'the mcndatory time
limits required by the grievance procedure in the'collective agreen<ent.&. 33~
TIci cube is disilnguishable ir; tnat the partIes gre different and they have o
very dlfferent collective agrccmcnt, particuIarty in the. pW~.iS i,url wt:ich
.
dec!arei C~!XWly and W,pliCitty that; a .gr'revance @ii& d(?p.s nnt pb??l:iceed to
orbifrcltior, within the mandatory ,time' limits 1s deem&d to be abandoned. And
' finally, ,K,eelinq did not' address the question of whether the grievor has the
-b-ight to procee d to arbltratian on an.abandoned grievanc’e, particu!arly on a
c:rieviznce dcer~r& tu br abancioned by the clear and &xpllc\t Language of the
colIective agreement.
HURRY Ha!-SGLASS ,416 525 7837 P.03 c
a
WC. Far7 tM,t mFPpt K.FPlitlq’s vLEtW LhOL Lhert is ‘“ltlr z3tututur.y right of the :
employee t3 reject the o;rtcomc of the grievance process". &elinq notes that I
"the effeF$ (if h;~?ficll nf ti?t time Iitnils is ‘Lu &rrr! tie yrirvqncr trJ be
w:thdrawn" (p. 14); but it finds that.the time limits do not apply where they
~rve tr: deny a statutory right to arbikration. We do r,ot agree, In our *
:udqmrnt,' in this case; the denial to rxoceed_m-D. In its ~+,.,FQJcP.
LS Q denict_tk ~roc&ed furtk‘on a arizvance after' it has been 'le.aitimfitelv
and fi~all\; determined.
We do not agree that
&finaI determination". can mean only a settlement to the
)J I. i t\wt- '5 Sl~LlsiutL itir,.
q:tkt: LIIC eq~t~yee tma cfit2:r~cis~J ,hls r~iytlt to grieve,
has processed his grievdnce fhrough the. procedure, and bus abandoned the
grievance by his failure to meet the procedure's valid and legitimate time-
;, imitl3, his. c]t-ievcnce h&been flr?ally decermtned "Udder such procedure”. He
ccn nat now revxve it for arbitration. Thus,.the right to arbitrbtlon exists
001~ for thgse grievclrkes which have not been finaily determined,'
Outc~citar pt*e~ercnce is 10 ir!Lrr&~t ttie stututt! ~43 it -is, without the ’
additicn ,sf Ksc?ling’c .amcnding language. Thm, WC intcrprct the words “final
determination mder such procedure" - to mean that a grievance may be termLnatkd.
by any once of three .outcomcs before it: reaches arbitration: <he grievance may
be withdrawn, cbandbned or settled. {See Pdlmer,E.E., _Collective AGreemint
,Arbitration in Canada,~1978) p 167.3
On this subject the following quotations, from &own and Beatty, Canadian
Lclbljilr .At'bi 1tWI icjri, (19771, ur’t! yer*tirlertt: L
"'As well, there may, in certain instances, be other factors affecting c3n
arbitrator's jurisdiction. for example, a griebcncc may have beeri
VAthdrawn, settled, or otherwise conilusivelv detertnined.~" (p. 41)
[Emphasis 1s ours] '
And: "Genersl!y, where in the course of'thk grievance procedure the parties
have dealt with a purticu!ar @ievance so that it is settled,
withdrawn, abandoned or has become time barred, that will prevent the
revival and r-ecubmission of the Sark gricvancc to arbitratian. That is,
in the same way as the doctrine of ms judicatzl applies to prior awards,
the settlement, abnndotxent, and withdrawal of a grievance cwi\l be
I -.
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H&RRY Wd’I&~L&S :.
416.525 7823 .’
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P.04
Any orie 'of-such u!&cOmErs, settlement,-withdrawI> or abandonmerlk, .is a firal -.A-
determitwtion which exhokts the grievor s right to proceed further with the,
gr1 evtmr-P .- ThF r- ;trl?;rtP gijres C;J et~p~ops the rigkk.to'br\ng his dlsmiLsaJ, t)r "
stispension g&evan~& before the GSB, _but on'iy in the absence of' a "final 1
determinat&n" throuah the,qr;evtince procedure. 1
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fin abandon+l gr~evarce is.0 fifla21y-determined grievance, just as much as o&
whit-h .iS sett~rfl nr .withr-h-nlrfn. fiw:e CI grievance is final\y detuwiinca, it no . ,.
lange? exists.‘It is.0 'dead qri&anc'e.
Sectlow X3(2) q-d 19 do not permit dead grievances tn be br'h>ght before the
CSF3.'Whi Lo the statute. establishes afi ernpIoyee?s- riaht- to ar;ex unjust
dl.scipline, dismissaLor suspension, .it also .requires'such grlkvanqes to be
'processed 'atid determined thrdugh the grievance pmcedure. Anrf fur.ther,, wfti Ze
it gives the employee- the .righ t to bring the n&ttr before *L!IC GS3 i-or* .,
arbltrotion, ihat r.iaht is tffectile'on2y in the absw,ce_of a final
J
Tww Limits are vital and- intt&al to the @~rpclse of the; grievance procedure:
t.0 cncoilrnge m2d fnri’i i tntP ‘wttlepwnt . TiFe lGnit5 &in not bz saparated or
reI?IGved wthout seriou51,y.IfnWairing the two'essentia1 .functi~ns residing in
the prcjcedure: [lJ,the expeditious d~~cov~irv of fticts and mer:tsthrough the
exchanges and discussions which? take place bt each stage, WithIP the defined
time limi.ts; dnd f2J pronrpt-and practical decisi&-m&i& to resolve the . .
Th? CEiSA requires the parties to pti!w e ant:t1~mftrtt. throtrgh t'he grirlvance
procedure before r esorting to arbitration.
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‘HARRY.. WFS I SGiFiS.S 416 525,78.37 P.BS i ,[.
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The.procedure, in the c:pse &hand, perwits .an unrescIved grfevance, one that.
is neither settled nor withdrawn, to advance to the ne,xt stage, iilcludinj
arbitratibn, &,it’htn certain time limits, after which the grie~at& is demed
tc be abandoned. Thcrc is absolutely nothing in the CECBA to deny or restrict
the rights of the parties to include these time 1Mts in the collective
agreement.; Arbitrators do not have the power to nullify the time IimltS,
:;nless- they ure cltlc.~r*ly pr~I~ibitcd by statute. in our judgment, tq ndd %brd~
to the statutory provl:sion to give it a meaning whiazh it could nc?t Sear
otherwise, a mewing which coutd not have been intwded tegls!otiveIy, does
not‘pravide an interpretation upon which wecan'rely. t
The total thraust uf ttle ltqis!al~v~ intent af the: CCCBA, as wit understand it,
is cu reyut rt , etKouIY7gc, utrd facilitate collective bargaining. In essence,
this means the employer and the hot&i ni ng &ent. nrr. en&raged, wpected apd
even required jointly to make, administer and enforce their own rules/laws
governing empjoyer-employee relationships in the work place, except only In
respect to those matters specifically governed by statute. The CE'&A
legitimizes the collective ugreement as the expression of the private’iaws of
the work place governing employer-employee relation<. '. ., <
Neither the grievance procedure as such, nor the t.ime limits In particular, :
deny w nullify the employee's statutory right to process’s grievance through,
nil stages ijp t-n nnd includinb arbitcation;Jhe denial'-o_f,the right to ,prog,g,e_d,
$2 arbitration. on a qr.i&ance which has&en deterrnined.fina?lv bv its
abandonment. or otherwise. is ncit a.denial of the riuht 'to Grieve.
Final,ly, the grie;ance procedure is among the maiters authorized for
bargaining by Set 7 of the CECBA, and upon which the parties must ‘fbargaln I?
good faith and make every reasonable effort to make a collective agreement."'
[Set 8 (Z)] We can not believe that the CECBA, which explicitly reqc;ires the
parties to bargain in go&l faith on a 'grievance procedure, among @her
approved bargaining matters to be included in a collective agreement, would
/.
nullify the time lirni'ts.which are an integral part of the procedure.
:
41’6 525 .7837
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P. 0’6
DATEG A': HAMILTON, LlMTflWIo, .THT’ -3 .-14a DAY OF OCTOBER, 1993
w. ~ANNKHAN, : -MEMBER
&,,.-~~ &-Lz-> -- - ------ -TI.C- _..
H. KNIGHT, MEMEER : .,
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