HomeMy WebLinkAboutUnion 14-02-28
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IN THE MATTER OF AN ARBITRATION
~ BETWEEN ~
HUMBER COLLEGE INSTITUTE OF TECHNOLOGY & ADVANCED LEARNING
(“EMPLOYER or COLLEGE”)
~ AND ~
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 562
(“UNION”)
AND IN THE MATTER OF A UNION POLICY GRIEVANCE ALLEGING VIOLATIONS
OF ARTICLES 2 AND 27.11
Board of Arbitration Deborah Leighton, Chair
Ann Burke, College Nominee
Larry Robbins, Union Nominee
APPEARANCES
For the Employer William Hayter, Counsel
Christy Lihou, Manager Human Resources
Christa Hinds, Senior Human Resources Consultant
Paula Gouveia, Dean, School of Liberal Arts and Sciences
For the Union Tim Hannigan, Counsel
Audrey Taves, Chief Steward
Robert Mills, Secretary
A hearing was held on this matter in Toronto on February 11, 2014
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Interim Decision
On March 11, 2013, the union grieved “that the college has violated, in particular but not
exclusively, Articles 2 and 27.11 of the collective agreement in the School of Liberal Arts and
Sciences.” By way of remedy, the union seeks that the college “comply with the cited articles
by designating as full time regular bargaining unit positions all positions in the School of
Liberal Arts and Sciences that have been staffed by non-full-time without adequate
justification. Such positions will be posted and filled immediately.” The union also seeks lost
dues associated with these positions including interest.
The union has filed essentially the same grievance with respect to other schools within the
college listed in a Memorandum of Settlement (MOS) dated May 23, 2012. One of these
grievances filed on behalf of the School of Media Studies proceeded to hearing on February 4,
2014. The parties asked that board to determine the appropriate scope of the union’s grievance
before turning to the merits of the matter. The board released the decision on February 7, 2014:
Humber College Institute of Technology and Advanced Learning and OPSEU, Local 562, 2014
(P. Picher).
The central question before that board was the interpretation of the May 23, 2012 MOS, which
provided that there would be no staffing grievances filed until after March 1, 2013. The union
took the position that the MOS did not preclude it from filing a staffing grievance, on or after
March 1, 2013, alleging that prior to March 1, 2013 the college was in violation of the
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collective agreement. The college was of the view that the union could not file staffing
grievances
that related to matters that arose before March 1, 2013. It argued that the MOS bars any
challenge to the appropriateness of the staffing complement of any of the schools or areas
designated in paragraph 1 of the MOS. Having carefully considered the submissions of both
parties, the board held as follows:
While the drafting of the Memorandum of Settlement could have been
clearer, the Board is satisfied, on a reading of the Memorandum of
Settlement in its entirety, that by including in the Memorandum of
Settlement a prohibition against the filing of a staffing grievance before
March 1, 2013, the parties intended that the Union would not raise, in a
grievance filed on or after March 1, 2013, an issue regarding the
appropriateness of the allocation of full time positions or an alleged
violation of article 2 of the collective agreement in respect of the period
covered by the Memorandum of Settlement or up until March 1, 2013. (p.
11)
Thus, the board concluded:
…the Union is precluded from challenging the appropriateness of the full-
time complement of positions, in alleged violation of articles 2 and 27.11
of the collective agreement, as it existed during the period prior to March
1, 2013. We note, however, that if the Union raises an issue regarding the
appropriateness of the complement, as it existed following March 1, 2013,
the Board's determination is not intended to preclude the Union from
relying on evidence that may reach back before March 1, 2013. (p. 13)
The union reserved the right on February 4, 2014 to argue both estoppel and waiver, should it
not be successful on its position on the scope of the grievance. The parties agreed to put these
issues before us on February 11, 2014. They asked for an expedited decision since essentially
the same grievance is set to be heard regarding another school in the college on March 4, 2014.
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The Union’s Submission on the Estoppel and Waiver Motions
The union submits that the facts are not in dispute. Settlements on staffing have been executed
by the parties since 2009. The language in the agreement for 2009 is slightly different to that
before us but for 2010, 2011 and 2012 the language is almost identical. Counsel for the union
argued that these documents establish a consistent pattern: grievances were filed in each year in
the spring and the parties reached fresh settlements, providing that no further grievances would
be filed until the next spring.
Counsel submitted that it is undisputed that the employer did not advise the union during the
negotiation of these agreements that staffing grievances which might have arisen following the
MOS and in any year before March 1, were not grievable given the language of the MOS. The
first time the college raised this position was before the Picher board on February 4, 2014. He
noted that while the parties referred the 2013 grievances to arbitration, in prior years the parties
settled without such referral.
It is the union’s view that the practice of the employer was to negotiate settlements on staffing,
which included issues arising during the year of the “moratorium” on staffing grievances.
Counsel argued there was clear detriment to the union because the union agreed not to grieve
staffing issues until the following year. He stated further that had the college taken the position
that the union was giving up the right to assert staffing issues from the year subject to the MOS,
the union would have negotiated different language. Thus, in his submission, the union lost the
opportunity to bargain different language and this creates an estoppel. He further noted that
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there does not have to be an intentional misrepresentation for estoppel to arise. The effect of the
representation and the detrimental reliance on that representation establishes the estoppel for the
2013 grievances.
In the alternative, counsel submits that the college has waived its right to take the position it
takes now concerning matters which occurred before March 1, 2013. He argued that the case
before us involves timing and procedure. The college had waived its right to raise its position at
the arbitration hearing by not putting the union on notice of its position during the grievance
procedure.
In sum, counsel argued that waiver does not have to be addressed since the estoppel is clear. If
the employer had intended to rely on the strict interpretation of the MOS, it should have put the
union on notice of the issue. Without knowledge of the college’s position and given their
conduct, the employer should be estopped from relying on the strict interpretation of the
language of the MOS. The union relied on the following in support of its submission: TRW
Canada Ltd v Thompson Products Employee’s Association [2001] O.L.A.A; No. 19 (Newman);
OPSEU (Moody) and Ministry of Community and Youth Services (2012) GSB 2010-2436
(Abramsky).
The Employer’s Submission
Counsel for the employer argued that the union is claiming an estoppel by ‘silence.’ He
emphasized that there must be an obligation to speak up or silence cannot create an estoppel.
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The language at issue in the case before us is that of the MOS. He submitted that there is no
evidence before us that the parties discussed the meaning of this language. The question of what
the MOS meant did not become an issue until the parties were unable to settle the March 2013
staffing grievances locally. In counsel’s submission, neither party had an obligation to declare
their views of the language until they were not able to settle. Therefore, there was no obligation
on the employer to say how they interpreted the language. Thus, there is no estoppel in silence.
Counsel argued further that settlements achieved in prior years say nothing about the parties’
positions had they not been settled. Moreover, there was no detriment to the union. The Picher
board agreed with the employer’s interpretation of the MOS that the union could not grieve
matters in the period covered by the settlement or anything that arose before March 1, 2013.
Counsel stated that in effect the union wants to overturn that interpretation.
In response to the union’s argument that the college had waived its right to claim the
interpretation advanced to the Picher board, because it had not been raised during the grievance
procedure, counsel argued that a question of law is a substantive matter and cannot be waived.
The interpretation of the MOS is a question of law as opposed to a referral to arbitration, which
is clearly procedural and may be found to be waived if there is no timely objection.
Counsel contended that the grievances here went through the grievance procedure. The parties
could not agree to settle. Therefore, they were referred to arbitration and a board was
appointed. The employer put the union on notice in a letter dated January 11, 2014 that it would
take the position that the MOS dated May 23, 2012 precluded staffing grievances during the
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lifetime of the settlement agreement. The employer requested that the board deny the union’s
motions. The college relied on the following case in support of its submission: St. Clair
Catholic District School Board and OECTA (2011) (Luborsky).
Decision
As Arbitrator Luborsky said in St. Clair Catholic District School Board, supra, principles on
the doctrine of promissory estoppel are well established. Arbitrator Luborsky quoted from
International Alliance of Theater Stage Employees, Moving Picture Technicians, Artists and
Allied Crafts of the United States and Canada v Ed Mervish Enterprises Ltd. (Sheedy
grievance), [2009] O.L.A.A. 433, wherein Arbitrator MacDowell summarized the principles:
Estoppel operates to prevent the unfairness that can result when “A”
represents to “B” that “A” will not enforce a right obligation under the
contract between them, or that “A” will apply the contract in a particular
way; and then subsequently “A” “changes its mind” and either seeks to
enforce the particular right or obligation, or seeks to apply the contract
differently, after “B” has acted to its detriment in reliance on the
representation and in the circumstances where the situation cannot be
restored. A party that that asserts “estoppel” bears the onus of proving that:
1. the other party to the collective agreement made a clear and
unequivocal representation concerning the interpretation or application
of the agreement;
2. the representation was intended to and does in fact affect the legal
relations between the parties to the agreement;
3. the claimant relied upon the representation by doing something, or
foregoing the opportunity to do something, and that it would have
acted otherwise but for the representation;
4. its reliance is detrimental because the situation cannot be restored to
what it was when the representation was made.
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A representation can be by words or by conduct, and might even include
silence or inaction in the face of a notorious longstanding practice contrary
to a collective agreement provision. However, it is a question in each case
whether all four elements of estoppel have been established, because a
failure on any item will mean that the estoppel had not been made out.
(Para. 32)
Thus in the case before the board the union must prove that the college made a representation
with the intention of affecting the legal relations between the parties. The union must also show
that it relied on the representation to its detriment.
The union submits that the conduct of the college in 2010 through to 2012 establishes a practice
of allowing the union in the spring of each year to file fresh grievances that would deal with
staffing issues which arose during the time indicated in the settlement that there would be no
further staffing grievances. The union argues that had it known about the interpretation that the
college took of the language, it would have bargained other language.
It is clear that conduct and even sometimes silence or inaction may establish an estoppel. In
TRW, supra, Arbitrator Newman referred to CN/CP Telecommunications and Canadian
Telecommunications Union (1981) 4 L.A.C (3d) 205 (Beatty) and noted that in the judicial
review of this decision, the Divisional Court confirmed this concept as follows:
…representations made at the bargaining table may constitute
representations for the purposes of triggering an estoppel in respect of the
interpretation of a collective agreement. More specifically, the court
affirmed that the failure of one party to raise and negotiate amendment to a
provision of a collective agreement may amount to the requisite
“representation” upon which the estoppel is founded. Silence at the
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bargaining table, in other words, may be tantamount to expressly holding
out that a practice or interpretation will not change. (Para. 53)
Arbitrator Newman agreed with the analysis in Hallmark Containers, which she summarized as
follows:
…that company silence at the bargaining table, after full explanation of the
union’s understanding of the language constituted a representation to the
effect that the company agreed with the union, both in language and the
interpretation. Company silence was followed by written acceptance of the
union’s language, and there was no doubt that a representation existed.
Although the company may not have accepted the union’s interpretation, it
acted in a manner which caused the union to believe that it had. The union
acted upon that representation, by foregoing an opportunity to push for any
further language revision. (Para. 56)
In TRW, supra, Arbitrator Newman relied on this analysis to find that there was clear evidence
of a past practice. Further, the association began collective bargaining with a clearly articulated
goal of protecting that past practice. It was steadfast in its goal. In contrast, the company was
not clear, which did not allow meaningful negotiations and this resulted in language that both
parties interpreted very differently. Thus, the facts before her supported the conclusion that the
employer’s silence at the bargaining table constituted a representation. She held that employer
had a duty to communicate and failed to do so.
The facts before us are significantly different. There is no evidence before us that there was
any discussion as to the meaning of the language of the MOS. There is no evidence that the
employer sat silent when the union presented its understanding of the language. The argument
that since 2009 the parties had always settled with a fresh MOS and dealt with issues in the
period covered by the old MOS cannot be seen as such a “notorious longstanding practice” as to
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prohibit the employer from arguing the appropriate interpretation of the MOS, at the point when
the parties could not reach a settlement.
We are persuaded that the question of what the MOS meant did not become an issue until the
parties were unable to settle the grievances filed in March of 2013. Therefore, neither party had
an obligation to assert their position on the language until the grievances came forward to
arbitration. Thus, we find that the college made no clear unequivocal representation concerning
the legal relations between the parties here, either by its silence or conduct. Further, it would
seem to be entirely contrary to good labour relations and the principle that parties should be
encouraged to settle their differences, to make a finding that by settling grievances in 2010
through to 2012, the employer should therefore be estopped from asserting this interpretation
with regard to the 2013 grievances. We are also not persuaded that the union has suffered any
detriment.
We also note that the MOS in 2009, 2011 and 2012 expressly stated that they were made
without prejudice and without precedent to any other issues or proceedings or were made on a
without prejudice and without precedent basis.
The union argued in the alternative that by failing to raise the issue of its interpretation of the
MOS during the grievance procedure the employer waived its right to raise this matter before
us, relying on OPSEU (Moody,) supra. In that case, Arbitrator Abramsky explained waiver as
follows:
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Waiver, according to Palmer in Collective Agreement Arbitration in
Canada, at page 164, is a common law doctrine which arises in “situations
where failure to make timely objection to non-compliance with the
procedural requirements of the grievance procedure prevents the objection
from being raised later.” In contrast, fundamental issues of jurisdiction-
substantive arbitrability- cannot be waived, and may be raised at any time.
(Para. 26)
The issue before Arbitrator Abramsky was whether the time limit for referral to arbitration was
procedural or substantive in nature. She concluded that the time limits for referral to arbitration
are procedural and could be waived. Arbitrator Abramsky also cited a quotation from Brown
and Beatty cited in Amalgamated Transit Union, local 1587 & Ontario (Metrolinx-Gotransit),
as follows:
The concept of “waiver” connotes a party not insisting on some right, or
giving up some advantage. However, to be operative, waiver will generally
require both knowledge of and an intention to forego the exercise of such a
right…
[By] not objecting to failure to comply with mandatory time-limits until the
grievance comes on for hearing, the party who should have raised the matter
earlier will be held to have waived noncompliance, and any objection to
arbitrability will not be sustained. (Para. 28)
Counsel for the union argued that the OPSEU (Moody) case is similar in nature to the case
before us, that it is about timing and procedure and therefore the employer has waived its right
to raise the issue of the interpretation of the MOS. Counsel for the union also provided the
board with an excerpt on waiver from Brown and Beatty that provides at para. 2: 2212 as
follows:
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Waiver and equitable estoppel distinguished
So defined, the doctrine of estoppel is to be distinguished from the closely
related concept of waiver which arises, for example, where there is a failure
by one party to object to a procedural irregularity, thus preventing it from
later being raised as a bar to the arbitrability of the grievance. For the
invocation of this latter doctrine, all that is required is an intentional
relinquishment of some known right or advantage.
With respect, we are not persuaded by the argument that the employer waived its right to argue
about the interpretation of the MOS. This has nothing to do with a procedural irregularity. We
are of the view that the interpretation of the MOS is fundamentally a question of law. A
substantive question of law cannot be found to have been waived.
Thus having carefully considered the submissions of the parties and for the reasons recorded
above we hereby dismiss the union’s motions on estoppel and waiver. We remain seized of any
issues that are outstanding on the merits of the grievance.
Dated at Kingston this 28th day of February, 2014
Deborah Leighton
_________________________
Deborah Leighton, Chair
“Larry Robbins”, concurring
_________________________
Larry Robbins, Union Nominee
“Ann Burke”, concurring
_________________________
Ann Burke, Employer Nominee