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HomeMy WebLinkAboutUnion 14-09-18IN THE MATTER OF AN ARBITRATION BETWEEN: HUMBER COLLEGE (“College”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) (Grievance Re: Salary Grid Placement – Preliminary Issue of Jurisdiction) ARBITRATION BOARD: Jasbir Parmar, Chair Carla Zabek, Employer Nominee Sherril Murray, Union Nominee On Behalf of the College: William J. Hayter, Counsel Christy Lihou, Manager, Human Resources Christa Hinda, Sr. H.R. Consultant Gerd Rehding, Manager On Behalf of the Union: Lesley Gilchrist, Counsel Audrey Taves, Chief Steward, Local 562 Robert Mills, Secretary, Local 562 This matter was heard on April 3, 2014, in Mississauga, ON, followed by written submissions completed on May 15, 2014. I. INTRODUCTION 1. This decision deals with a preliminary issue raised by the College with respect to jurisdiction. 2. In May 2013, the Union filed a grievance alleging the College violated the collective agreement by failing to properly credit master’s level education when calculating initial salaries for professors, counsellors and librarians. The Step 1 and Step 2 meetings took place in May and June 2013 respectively. The College denied the grievance at both steps, documented in memorandums that followed the meetings. The grievance was referred to arbitration on July 2, 2013. 3. The grievance was scheduled for hearing at arbitration in April 2014. One week before the hearing, the College advised the Union it challenged the arbitrability of the grievance, on the basis it was in violation of Article 32.09 of the collective agreement, which limits the types of grievances that can be brought by the Union. 4. Article 32.09 of the collective agreement states: 32.09 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. 5. The Union concedes that if Article 32.09 applies in this case the circumstances do not fall within the limited exceptions that would permit the grievance to be filed by the Union. However, the Union asserts that by failing to raise the issue of the application of Article 32.09 for months after the grievance was filed, the College waived its right to raise that objection. 6. The parties agreed that the Board should first address this preliminary issue. Thus, the issue addressed by this decision is whether the Board has jurisdiction to hear this grievance. 7. While the parties completed their submissions on the hearing day, the Board subsequently learned of a decision by a Board chaired by Arbitrator Jane Devlin, George Brown College – and – OPSEU (unreported, April 29, 2014), which addressed the very issue in dispute, and canvassed a number of the decisions referenced by the parties. The Board provided this decision to the parties, and invited them to comment. II. PARTIES’ POSITIONS 8. The following is a brief summary of the parties’ submissions. 9. The College noted that after filing the union grievance at issue in this case, the Union communicated about the underlying issue with its membership, and since then six individual grievances have been filed, claiming a breach on the same basis alleged in the union grievance. 10. The College submitted the issue of whether the Union can file a union grievance in the circumstances of this case is a question that goes to the jurisdiction of the Panel. The College noted that there a number of arbitration awards which have held that if the requirements of Article 32.09 are not met, then the Union cannot proceed with such a grievance because the arbitrator or arbitration board does not have jurisdiction to hear such a grievance. The College submitted that where there is a question of jurisdiction, or a question of law, waiver does not apply. 11. The College acknowledged that there are cases which permit a grievance to proceed where objections about defects in the grievance were not raised in a timely manner. However, it submitted that those cases are ones that deal with procedural jurisdictional issues, such as compliance with time-limits. The College, relying on the analysis in St. Clair District School Board, infra, submits there is a distinction between “fundamental” jurisdictional issues and procedural issues. The College submits the issue before this Board is a fundamental one, of whether the Union can even file the grievance it has. 12. The College noted there are decisions directly on point under this collective agreement which have held that compliance with Article 32.09 addresses a jurisdictional issue, and cannot be waived. 13. With respect to the decision of Arbitrator Devlin, the College submitted that the majority of the Board erred in conflating the fact that an objection under Article 32.09 addresses the form of the grievance with the notion that compliance with procedural requirements can be waived. The College submitted that it is not appropriate to characterize the College’s objection under Article 32.09 as one of form. It submitted Article 32.09 sets out whether an arbitration board actually has jurisdiction to address the underlying issue raised by the grievance. The College submitted that if an arbitration board takes jurisdiction of a matter when the collective agreement doesn’t give it jurisdiction to hear that matter, that is an amendment of the collective agreement. This, it argued, would be a violation of Article 32.03D, which expressly prohibits an arbitration board from addressing any matter that is not a proper matter for grievance. Article 32.03D states: 32.03D The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper matter for grievance under this Agreement. Section 14(16) of the Colleges Collective Bargaining Act, 2008 shall not apply. 14. The Union, as noted above, conceded that if Article 32.09 applies, the Union cannot proceed with this grievance because it does not fit within the specified exceptions set out in that Article. However, the Union submitted that in failing to raise a timely objection, the College waived its right to raise this objection. 15. The Union submitted that the issue of whether the Union can file a grievance in the present circumstances is an issue about the form of the grievance. The Union noted that arbitral jurisprudence is clear that waiver can apply to formal or procedural irregularities. The Union accepted that Article 32.09 is a mandatory provision, but submitted that just because something is mandatory does not mean it cannot be waived. The Union submitted that the difference between the filing of a policy grievance and the filing of an individual grievance is really just a procedural matter. It submitted the issue raised by Article 32.09 should be considered analogous to time limit irregularities, which have been held to be subject to waiver. 16. The Union submitted that if the Board has jurisdiction to hear a union grievance and it has jurisdiction to hear an individual grievance, it would be strange that a mix-up between the two forms means the Board cannot hear it, even when the College has waived its right to raise an objection to the form. 17. The Union noted that it is clear that silence can constitute waiver, and it is not disputed the College was silent on this point for the many months between the filing of the grievance and the arbitration hearing, despite identifying objections on other grounds, such as estoppel. 18. In its supplementary submissions, the Union submitted that the analysis of Arbitrator Devlin should be followed by this Board. It submitted the fact that that decision was issued under a different collective agreement is insignificant, given that the collective agreement was negotiated centrally by the same parties as in this case and contains identical language. The Union noted Arbitrator Devlin found that the underlying issue in dispute is not beyond the scope of an arbitrator’s jurisdiction just because there is an issue about whether it is the proper subject of a union grievance. 19. The Union submitted the objection of the College is about the form of the grievance, and not about the fundamental jurisdiction of the Board. III. ANALYSIS 20. The issue is whether the College can be found to have waived its right to raise an objection based on Article 32.09. 21. There is little dispute about the general principles. There is agreement that issues that go to the Board’s fundamental jurisdiction cannot be waived, and that issues that are about procedural irregularities, even though they may be mandatory requirements, can be waived. 22. A summary of the law outlining these general principles is set out in Collective Agreement Arbitration in Canada (Palmer and Beatty), as quoted in Seneca College, infra: Certain defects cannot be waived and objections concerning these can be made at any time. The reason is that jurisdiction cannot be conferred on an arbitrator through a party’s failure to object promptly. The cases have thus distinguished between fundamental issues of jurisdiction to which waiver never applies, and irregularities of form or procedure to which the doctrine is applicable. Failure to comply with mandatory time limits in the collective agreement; filing of a grievance as a policy rather than an individual grievance; defects in the grievance form itself; and failure to proceed through all the specified steps of the grievance procedure have been held to be procedural irregularities which can be waived. Failure to object, prior to the hearing, to a damage claim formulated in a policy grievance has also been held to constitute waiver of the right to object. On the other hand, the filing of the grievance by the union rather than the grievor, the exclusion of the grievors from the bargaining unit; the status of the grievor as a probationary employee; and the existence of a collective agreement have been considered fundamental issues of jurisdiction. It has been held that the failure to submit a grievance in writing, as required by the collective agreement, was a matter of substance, and not form, and so could not be waived by conduct. One should not assume that a matter is fundamental and therefore cannot be waived simply because the collective agreement sets out a procedure to be followed. 23. The dispute between these parties is about in which category Article 32.09 fits. We do note that on the surface it seems a bit confusing. Even this summary identifies “the filing of a grievance as a policy rather than an individual grievance” as being a procedural irregularity, while “the filing of a grievance by the union rather than the grievor” as being a fundamental issue of jurisdiction. 24. The cases that have been cited to us which address a union’s ability to file a grievance in these circumstances have reached differing conclusions. They are Durham College – and – OPSEU (unreported, November 1, 2012) (Knopf); Humber College – and – OPSEU (unreported, February 28, 2014) (Leighton); Fanshawe College – and – OPSEU (unreported, October 30, 2009) (Brown); St. Clair Catholic District School Board – and – OECTA (unreported, February 4, 2011) (Luborsky); St. Lawrence College – and – OPSEU (unreported, November 21, 2011) (Starkman); St. Lawrence College – and – OPSEU (unreported, April 13, 2012) (Leighton); St. Michael’s Hospital – and – SEIU (2012), 215 L.A.C. (4th) 366; George Brown College – and – OPSEU (unreported, December 29, 1995) (Burkett); Seneca College & OPSEU (2012), 223 L.A.C. (4th) 335; and St. Clair College – and – OPSEU (1997), 65 L.A.C. (4th) 219. 25. While there are a number of decisions under this collective agreement that refer to Article 32.09 being a matter of jurisdiction, this Board knows of only three decisions which have directly addressed the issue of jurisdiction and waiver. 26. The first, chronologically, is the decision of Arbitrator Macdowell in Seneca College – and – OPSEU (unreported, October 29, 1988) (MacDowell). The issue was whether the union could grieve under what is now Article 32.09. Arbitrator MacDowell ultimately found that the subject matter of the grievance, which was improper exclusion from the bargaining unit, was the proper subject matter of a union grievance. He went on to note that if he was wrong in that respect, the college had waived any right to raise an objection under Article 32.09. He stated that the college’s objection was to the form of the grievance, and that as it had not raised its challenge to the form in a timely manner, it had waived the right to do so. 27. The second such decision is that of a Board chaired by Arbitrator Brown, in Cambrian College – and – OPSEU (unreported, September 11, 2002). In that case, the union had filed a grievance alleging a violation of sick leave provisions and a failure to remit appr opriate dues. The Board upheld the college’s objection that the grievance did not comply with Article 32.09. They went on to reject the union’s argument that the college had waived its right to raise that objection. In doing so, the Board stated: The issue raised in the preliminary objection of the College must be determined in consideration of the application of Article [32.09] of the collective agreement to the grievance of the Union. We find the objection raised to this grievance concerns a fundamental jurisdiction of the Board of Arbitration which may arise at any time of the proceedings and cannot be waived. ….. The College’s objection to the jurisdiction of the Board being a fundamental issue as set out above is not the subject of waiver, nor we find is the College estopped from raising this issue of jurisdiction which the Board must find and assert before it could proceed to determine the merits of the Union’s grievance. As stated by Arbitrator Gorsky: “A board of arbitration cannot create its own jurisdiction. It must be derived from the collective agreement, or the Labour Relations Act, ….” 28. The last one is a decision of a Board chaired by Arbitrator Knopf, Fanshawe College – and – OPSEU (unreported, December 10, 2007). In that case, the union filed a grievance about the granting of professional development leave to a certain professor. The college did not raise an objection under Article 32.09 until shortly before the arbitration hearing. The Board rejected the union’s argument that the college waived its right to raise compliance with Article 32.09 as an issue, finding that compliance with the Article was fundamental to her jurisdiction to address the dispute between the parties. The Board, it appears, did not consider the MacDowell award in Seneca College, but did consider Cambrian College, and stated the following: The College’s objection to arbitrability concerns a fundamental question of jurisdiction because without a valid Article 32.09 grievance, this Board of Arbitration has no authority. It is always unfortunate when an objection is first raised at arbitration. However, because this is a jurisdictional matter, the College’s failure to raise the preliminary objection on a timelier basis is not a bar from raising it at this time. See Cambrian College,supra. A Board of Arbitration’s jurisdiction arises from the Collective Agreement and the grievance before it. If the grievance is not valid, the jurisdictional foundation crumbles. However, much latitude is given to the scrutiny of the grievance, because no one wants the labour arbitration process to devolve into procedural gamesmanship, where the merits of complaints can be defeated by the minefields of technical errors. This is recognized in the case law stemming from Blouin Drywall, and Greater Sudbury Hydro, supra. However an equally important principle of labour law is that the parties’ Collective Agreement must be honoured. Article 32.09 is a specific and detailed provision that the parties have adopted in the course of their sophisticated and carefully constructed Collective Agreement. Arbitrators have dealt with the language many times and always given it effect and meaning It is recognized as limiting the Union’s ability to complain about alleged violations of the Collective Agreement unless it can demonstrate [it fits within the exceptions]. 29. We have also considered the decisions that were decided under other collective agreements. 30. We note in particular the decision of the Board chaired by Arbitrator Devlin, in George Brown College, supra. This decision, while not specifically rendered under this collective agreement, dealt with a collective agreement with almost identical language that was negotiated centrally by the same parties, and considered a large number of arbitration awards, including Cambrian, Fanshawe and Seneca. The majority of the Board noted that “there is some difference of opinion among Arbitrators and Boards of Arbitration regarding the appropriate characterization of the objection that was raised in this case”. It went on to conclude that where the collective agreement prohibited the union from filing a grievance on a matter that could be grieved by an individual, an objection about the failure to comply with such a provision was really an objection about the form of a grievance. The majority of the Board concluded the objection was procedural in nature and could be waived. 31. We also note the decision of Arbitrator Luborsky, in St. Clair District School Board, supra, as an example of a decision which also undertook a broad review of the jurisprudence and reached the opposite conclusion on similar language. He concluded that the collective agreement restrictions on the specific matters that could form the basis of a policy grievance established a separate procedure for processing those types of disputes and that this was a substantive distinction that went to the fundamental jurisdiction of the arbitrator to consider that form of a grievance, and could not be waived. 32. It is helpful in situations where there are decisions on similar facts and language which reach different conclusions to return to basic principles. An arbitrator’s jurisdiction can only arise from a statute or the collective agreement. Also, the approach to determining arbitral jurisdiction should not be a technical, rigid one. As Arbitrator Knopf noted in Fanshawe, “no one wants the labour arbitration process to devolve into procedural gamesmanship, where the merits of complaints can be defeated by the minefields of technical errors”. That is why the focus must always be on the essential nature of the dispute. 33. It is appropriate, therefore, to begin with a consideration of the matter that is in dispute as identified by the grievance before us. The matter in dispute is whether the Job Classifications Plans, which are part of the collective agreement, have been appropriately applied by the College in terms of crediting education in determining salary levels. That is the substantive question that is raised by the grievance. A dispute of this nature is therefore, in substance, a dispute about a matter under the collective agreement. All disputes about a violation of a collective agreement fall within the jurisdiction of an arbitrator to resolve (see section 14 of the Colleges Collective Bargaining Act). To summarize, the underlying matter in dispute is a matter that falls within the jurisdiction of an arbitrator. 34. That said, parties are free to negotiate certain procedures that must be followed in filing or processing grievances, including limits on the types, or forms, of grievances that can be used in particular circumstances. In the present case, these parties have clearly done that. Article 32.09 indicates these parties intended that the Union could not file a grievance on “any matter” that could be grieved by an individual (subject to certain exceptions which the Union concedes are not present in this case). 35. Of note, this provision is a limit on the particular form of a grievance. It is not a limit on the ability to grieve the subject matter identified by the grievance itself. To be more specific, Article 32.09 does not prevent the filing of a grievance about the proper application of the Job Classification Plans or an arbitrator from considering that issue. That is and remains “a proper matter for grievance”, to borrow the language of Article 32.03D. Rather, Article 32.09 speaks to the form of the grievance, and is part of the procedures around grievances that these parties have put in place. 36. We are in agreement with Arbitrator Devlin that an objection about the form of the grievance is an objection about a procedural irregularity, and we adopt her reasoning in that respect. We recognize that there are other arbitration decisions that have reached different conclusions. However, there are many that have reached the same conclusion, and in our view, those are most consistent with the general principles of arbitral jurisdiction we outlined above. 37. We reiterate that waiver does apply to “irregularities of form”. That is exactly what the College’s objection is about, that the proper form of grievance was not followed. The form of the grievance is part of the procedure of filing a grievance, and as such is a procedural requirement. The Union’s failure to comply with that procedural requirement is a procedural defect. As noted above, waiver can apply to procedural defects. 38. In the present case, the College proceeded through both steps of the grievance process without raising any objection to the form of the grievance until essentially the eve of the arbitration hearing many months later. This silence is sufficient to constitute waiver. IV. DISPOSITION 39. The College’s objection is dismissed. Dated this 18th day of September, 2014. ___________________________ JASBIR PARMAR (Chair) « Sherril Murray » ___________________________ SHERRIL MURRAY (Nominee) Dissent Attached ___________________________ CARLA ZABEK (Nominee) Dissent With respect, I disagree with the conclusion reached by the majority of the Board for the reasons which follow. Although the underlying subject matter of the grievance (i.e., the application of Job Classifications Plans by the College) is one which falls under the collective agreement, the issue before the Board in this instance was a preliminary one (i.e., whether the College waived its objection that the matter was not a proper union grievance pursuant to article 32.09). There was no dispute between the parties that the grievance filed as a Union grievance did not meet the requirements under article 32.09. The language in article 32.09 is mandatory in that a Union grievance “shall not include any matter upon which an employee would be personally entitled to grieve …”. In fact, the “right” for the Union to file a grievance is expressly limited in article 32.09. Thus, in this case, as the requirements were not met, the Union had no “right” to file the grievance under this collective agreement. I submit that the language of article 32.09 (particularly the first paragraph) clearly supports the position that the matter is one of jurisdiction, rather than form. This is not a case of a failure to comply with time limits or other “formal” requirements prescribed in the collective agreement. Had that been so, the doctrine of waiver would have been applicable. However, as the matter is one of jurisdiction, waiver has no application. Article 32.03D prohibits the Board from altering, modifying or amending the collective agreement or to make any decision inconsistent with the collective agreement. I agree with the College that by taking jurisdiction over this grievance when the requirements of article 32.09 are not met is tantamount to the Board amending article 32.09 in contravention of article 32.03D. I also submit that by deciding to proceed with the grievance, the Board is “making a decision inconsistent with the collective agreement” (i.e., article 32.09), also in breach of article 32.03D. In essence, the Board is giving the Union the “right” to file the grievance which it does not have since the other requirements of article 32.03 were not met. As the Board takes its jurisdiction in part from the collective agreement, it is my view, given the above, that the Board has no jurisdiction to entertain this grievance. I further submit that the foregoing is not a technical interpretation. As stated in the Fanshawe College decision, “if the grievance is not valid, the jurisdictional foundation crumbles.” I am surprised that the Board has taken this approach, given the jurisprudence specifically addressing waiver in the context of article 32.09 of this collective agreement, particularly Cambrian College (unreported, September 11, 2002) and more recently, Fanshawe College (unreported, December 10, 2007 and quoted above). [In an earlier decision concerning Seneca College (unreported, October 29, 1988), article 32.09 and the doctrine of waiver were discussed in obiter, as the Board found that the matter was the proper subject of a union grievance.] For the above reasons, I would have allowed the College’s objection. The matter is clearly one of jurisdiction, to which the doctrine of waiver has no application. « Carla Zabek » ___________________________ CARLA ZABEK (Nominee)