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HomeMy WebLinkAboutUnion 14-08-25IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE (“College”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 415 (“Union”) (Preliminary Issue – Scope of Grievance) ARBITRATOR: Jasbir Parmar On Behalf of the College: Jock Climie, Counsel On Behalf of the Union: Lesley Gilchrist, Counsel This matter was heard by way of teleconference, on July 29, 2014. 1 I. INTRODUCTION 1. This decision deals with a preliminary objection raised by the College, alleging the Union is improperly expanding the scope of its grievance. 2. The parties agreed, on the first day of hearing, to address this by way of teleconference. There is no dispute about the relevant facts. II. FACTS 3. The Union filed the grievance at issue on April 2, 2013. It alleges the College violated Article 2 of the collective agreement (in addition to other articles) when “it reduced the number of full-time faculty positions and failed to give preference to full-time positions in all areas associated with the area of General Arts and Sciences” (“GAS”). 4. When the parties met during the grievance process, in April 2013, the Union provided further detailed written information as to the courses they thought should form part of a full- time workload, creating 10 full-time positions. There is no reference in the courses listed to any courses in the Continuing Education (CE) program. 5. On April 15, 2014, Mr. Climie, counsel for the College, wrote to Ms. Gilchrist, counsel for the Union, seeking particulars of the Union’s position, and specifically asking that the actual hours that the Union thought should make up a full-time position in GAS be identified. 6. On May 22, 2014, Ms. Gilchrist responded to this request, attaching a spreadsheet. Again, while numerous courses were included, there was no reference to any CE courses. 7. On May 27, 2014, the day before the hearing, Ms. Gilchrist wrote to Mr. Climie asking the College to either send or bring to the hearing “any relevant information in the Continuing Ed, distance, and online education” program. This was the first reference by the Union to CE courses in the context of discussing this specific grievance with the College. 8. However, there are other facts which are also relevant. 2 9. The issue of CE courses forming part of Article 2 grievances has been addressed by these parties before, before Arbitrator Jesin. In a decision dated September 27, 2011 (which I will refer to as “Jesin #1”), Arbitrator Jesin addressed a College objection alleging improper expansion of the scope of the grievances to include CE courses. In that case, the Union first raised the CE courses shortly before the hearing. Arbitrator Jesin concluded that the Union’s attempt to rely on CE courses was an improper expansion of the grievances that were filed. After Arbitrator Jesin orally advised the parties of his ruling, they agreed the Union could file a new grievance referring to the CE courses at issue, and that the new grievance would be consolidated with the two grievances before Arbitrator Jesin. However, that new grievance would not be dealt with until the other two grievances were addressed. 10. When the parties eventually turned to dealing with the CE grievance before Arbitrator Jesin, the College raised a preliminary objection asserting that Article 2 had no application to CE courses. After hearing evidence on this issue, including bargaining history, Arbitrator Jesin rejected the College’s objection, in a decision dated March 31, 2014 (which I will refer to as “Jesin #2). The hearing before Arbitrator Jesin is currently proceeding on the merits of the CE grievances. 11. Subsequent to being informed of Jesin #2, Mr. Jean-Paul Lamarche, the Union’s chief steward, sent an email to the College stating as follows: Given arbitrator Jesin’s March 31st, 2014 award, the Local is putting the college on notice, by way of this e-mail, of its intention to include all activity in the Centre for Continuing and Online learning as part of all existing and future Article 2 grievances. For greater clarity, this includes, but is not limited to all continuing education and online courses/work offered through/by the college. 12. Of note, CE is a separate department of the College. It has a different dean and different managers. There are no full-time professors who teach in it (currently at least); the 3 courses are taught by independent contractors and part-timers who are not part of the bargaining unit. III. BRIEF SUMMARY OF THE PARTIES’ POSITIONS 13. The Employer asserts the facts indicate the Union never had CE courses in mind when it filed this grievance. It submits that the jurisprudence is clear that while a grievance should not be read too narrowly, parties are not permitted to subsequently alter the substance of the grievance. The Employer notes this principle is in support of effective labour relations. If parties are permitted to unilaterally expand the scope of a grievance, the Employer submits, the purpose of the grievance process is essentially defeated. 14. With respect to Mr. Lamarche’s email, the Employer states that it is irrelevant, as one party cannot unilaterally change the scope of the grievance. 15. The Union, on the other hand, states there was no reason for the College to be surprised by its reference to CE shortly before the hearing given Mr. Lamarche’s email. 16. The Union takes no issue with the relevant general principles outlined by the College. However, the Union submits that when one reviews the statement of the grievance (which is about “all areas of” GAS) and the remedy sought, there is no reason to conclude the CE courses are an expansion of the grievance. The Union submits that there is no change in the issue raised by the grievance, which is whether more full-time positions should be created. The Union, acknowledging there was no mention of the CE courses during the grievance process, submits that the only difference is the Union is now seeking to rely on additional evidence, that is the evidence about CE courses. The Union submits there is no prohibition against a party relying on additional evidence that was not raised during the grievance process, and that is all it is seeking to do. IV. ANALYSIS 4 17. Having reviewed the submissions of the parties, I have determined the College’s objection should be upheld. 18. In reaching this conclusion, I observe there is little dispute about the relevant legal principals. As noted by the Ontario Court of Appeal in Blouin Drywall Contractors Ltd. And United Brotherhood of Carpenters and Joiners of America, Loc 2486 (1975), 8 O.R. (2d) 103, a grievance before an arbitrator should be liberally construed “so that the real complaint is dealt with”. That does not, however, mean that a party may unilaterally expand a grievance to encompass a matter that was not grieved (see for example Fanshawe College & O.P.S.E.U ( 2002), 113 L.A.C. (4th) 328; Greater Sudbury Hydro Plus Inc. and CUPE, Local 4705 (2003), 121 L.A.C. (4th) 193; Toronto (City) v. I.B.E.W., Local 353, [2007) O.L.A.A. No. 461. 19. The purpose of this principle of liberal construction is so that the resolution of disputes is not defeated by technicalities or some defects in form. As noted by Arbitrator Brown in Fanshawe College v. OPSEU (unreported, August 17, 2004) (Brown), while the statement of the grievance ultimately sets out the parameters of the dispute, it is the essential nature of the grievance, and not its technical framing that must govern. To echo the words of Arbitrator Burkett in Fanshawe College, supra, to permit otherwise would undermine the fairness and efficiency of the grievance and arbitration process. 20. Arbitrator Jesin appears to have followed these principles in Jesin #1, although the written recording of his oral ruling was brief. He did note that the Union did not have a persuasive justification for failing to include the CE cost centres in the list of cost centres referred to in the grievances. From this I surmise that he was influenced by what the College would reasonably have understood was in dispute upon receiving the grievance. 21. In the present case, while the Union did not utilize cost centres, the College, in my view, would also not reasonably have understood that the area of CE was in dispute. The Union is 5 correct that on its face, the statement of the grievance, with its reference to “all areas” of GAS is very broad. However, in my view to conclude this included CE courses would actually be a technical and formalistic reading of the grievance, rather than one that focused on the essential nature of the dispute as could reasonably have been understood by the parties themselves. The written grievance must be read through the eyes of the parties. After all, it is the parties that must understand what is in dispute, so they can use the grievance process to attempt to resolve the dispute. 22. In the present case, CE courses were not treated as part of GAS by these parties when discussing potential full-time assignments. Despite discussing some 50 courses in GAS during the grievance process, not a single CE course was referred to. As such, the College could not reasonably have understood that CE was in dispute. 23. The fact is that the Union actually never had CE courses in mind in 2013, when this grievance was filed or when this grievance was carried through the grievance process. When they stated “all areas of GAS”, they were not referring to CE. Mr. Lamarche’s email of April 2014 indicates that it was not until Jesin #2 was issued, in March 2014, that the Union decided it would attempt to claim CE courses for Article 2 grievances that were already filed. This email indicates that the Union’s failure to identify CE courses during the grievance process was not just an error or oversight. It was consistent with the fact that the Union was not seeking to claim CE courses as part of this grievance when it was filed. 24. Ms. Gilchrist, to her credit, did not suggest otherwise. However, her submission that this is just a broadening of the evidence the Union intends to rely upon in support of its original claim is belied by the fact that the factual underpinning of the Union’s original claim had nothing to do with CE. 25. To accept the Union’s submission would be to ignore the unique context of the ongoing CE issue between these parties, as evidenced by the proceedings before Arbitrator Jesin. 6 When parties are communicating about grievances, including filing them, they are doing so in the context of their broader relationship. In this relationship, in 2011, the Union sought to claim CE courses in the context of other Article 2 grievances and was not permitted to do so on the basis that claim was not part of the original grievance. This was clear notice that the Union needed to be clear if it was claiming CE courses in Article 2 grievances. In fact, other Article 2 grievances the Union has filed since that time reflect this awareness, making specific reference to CE in the statement of the grievance. 26. In the grievance before me, the Union not only did not make any reference to CE in the statement, the Union made no such reference during the grievance process despite its detailed identification of the courses it was claiming for additional full-time positions. The Union’s “real complaint” had nothing to do with CE. In this context, the College could not reasonably have known that CE courses were at issue (because, quite frankly, they were not at issue at the time the grievance was filed), and it would be inconsistent with effective and harmonious labour relations to permit the Union to unilaterally add a claim to those courses at this time. V. DISPOSITION 27. On the specific facts of this case, I find that the Union’s claim for CE courses is an expansion of the grievance that is before me. In the absence of consent of the College, it cannot be permitted. 28. The College’s objection is upheld. Dated this 25th day of August, 2014. ___________________ JASBIR PARMAR