HomeMy WebLinkAboutUnion 11-01-18In the Matter of an Arbitration
Pursuant to the Colleges Collective Bargaining Act, S.O. 2008
Between:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the Union)
- and -
COLLEGE EMPLOYER COUNCIL
ONTARIO COLLEGES OF APPLIED ARTS AND TECHNOLOGY
(the Employer)
Re: Union Grievances filed between November 17, 2009 and February 24, 2010
PRELIMINARY AWARD
Paula Knopf - Arbitrator
APPEARANCES:
For the Employer: Wallace Kenny, Counsel
Robert Church
Christine Emond
Don Sinclair
For the Union: Janet Borowy, Counsel
Robin Gordon
Mary Ann White
Darryl Bedford
The hearing of this matter was held in Toronto on December 6, 2010.
The Ontario Public Service Employees Union (the Union) and the College Employer
Council Ontario Colleges of Applied Arts and Technology (the Employer) have a very
complex Collective Agreement covering the academic staff at all the Colleges in Ontario.
This Employer and the Union are sophisticated parties. Because of the nature of their
mandates, their negotiations are often protracted. The negotiations leading up to the
current Collective Agreement were no exception. The new contract was not resolved
until months after the previous one had expired. In the interim, the Employer exercised
its right to impose new terms and conditions of employment. One of the items of the
imposed terms and conditions included a provision that precluded to suspend the
Union’s right to file and process Union grievances until a new Collective Agreement was
signed. Nevertheless, the Union continued to file individual and Union grievances during
that period. The Employer asserts that the Union grievances are inarbitrable. The
Union challenges this alleged bar to arbitrability. The parties have asked for a
Preliminary ruling on the question of whether the Union grievances filed between
November 18, 2009 and February 24, 2010 are arbitrable.
In order to focus and expedite the determination of this matter, the parties presented
their case on the basis of the following Agreed Statement of Facts:
1. The Ontario Public Service Employees Union (“OPSEU”) is the exclusive
bargaining agent that represents 9,000 full time and partial -load faculty members
including but not limited to teachers, instructors, counsellors and librarians at the
24 Ontario Colleges of Applied Arts and Technology. Under the Colleges
Collective Bargaining Act, (CCBA), the Colleges Employer Council (“the Council”)
is the bargaining agent acting on behalf of the colleges in negotiating collective
agreements with unionized staff. Pursuant to the CCBA, the parties participate in
a centralized bargaining process for the academic bargaining unit.
2. Article 32 of the prior collective agreement and of the Collective Agreement which
was finalized on July 7, 2010 sets out a grievance procedure. Article 32.09
provides for Union grievances and that,
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 interpretati on,
application, administration or alleged contravention of the
Agreement. Such Grievance shall not include any matter
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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 the
employees.
Such grievance shall be submitted in writing by the Union
Grievance Officer at the Head Office or a Union Local
President to the Director of Human Resources or as
designated by the College, within 40 days from the
occurrence or origination of the circumstances giving rise to
the grievance commencing at Step One of the grievance
procedure detailed in 32.02.
3. This grievance concerns whether Union grievances filed during the period of
November 18, 2009 and February 24, 2010 are arbitrable. The Union holds the
position that the Collective Agreement is retroactive and applies to the period in
question. The Employer Council holds the position that at the time the grievances
were filed no collective agreement was in effect between the parties. The parties
agreed to appoint a single arbitrator to determine whether the grievances were
arbitrable and to proceed by way of legal argument.
History of Scheduling Grievances
4. The parties have a long-standing practice of jointly scheduling union and
individual grievances. Article 32.03 A provides the representatives of the Council
and the Union meet monthly to review the matters referred to arbitration and
agree to the assignment of a Chair to hear the grievance.
5. Since 2001, in a Letter of Understanding appended to the Collective Agreement,
the parties have further agreed that it is their mutual desire that complaints be
adjusted as quickly as possible and that neither party is entitled to refuse more
than two tentative arbitration dates on any grievance.
2009 Negotiations
6. Pursuant to Section 3 (2) of the Colleges Collective Bargaining Act, 2008, S.O.
2008 Ch 15 (“CCBA”), on June 3, 2009, OPSEU sent notice to bargain to the
Council for a new collective agreement. The collective agreement in effect at the
time expired as of August 31, 2009.
7. The parties met in negotiations between June and November 2009. Attempts at
negotiating a new collective agreement were unsuccessful. A Conciliation Officer
was appointed by the Ministry of Labour to assist the parties to reach a
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settlement at the negotiations. The Conciliation Officer issued a report to the
Minister of Labour, pursuant to Section 7 (3) of CCBA, that he has been unable to
assist the parties in settling the new collective agreement.
8. On October 30, 2009, the Minister of Labour issued a notice to the parties of the
Conciliator’s report. Negotiations subsequently broke off on November 12, 2009
with no further dates planned.
9. On November 12, 2009, pursuant to Section 15 (1) (b) of CCBA, and 16 days
following the Ministry of Labour’s notice of the Conciliation Officer’s report to the
parties, the Colleges announced that it would introduce revised terms and
conditions of employment for faculty beginning November 18, 2009 if the parties
were unable to settle by that date. The Col leges advised the Union’s bargaining
team on November 12 that if it implemented the revised terms union grievances
would be suspended.
November 18, 2009 Terms and Conditions.
10. On November 18, 2009, revised terms and conditions became effective. The
cover page of the terms specified that,
These terms and conditions became effective on November
18, 2009 unless otherwise indicated in the term and
condition. Salary increases were retroactive to September 1,
2009. These terms and conditions will remain in effect until a
new collective agreement is entered into with OPSEU.
11. The revised terms of Article 32.03A included a new paragraph in bold as follows:
(As the joint scheduling committee meetings are
suspended until a new collective agreement is signed
with OPSEU, the scheduling of individual grievances will
be dealt with at the local level between the Local Union
and the College. Any notices to arbitrate received from
individual employee grievances will be dealt with by an
arbitrator being selected by lot from the above list. That
arbitrator will then be canvassed for dates acceptable to
the Local Union and the College. This process will be in
place until a collective agreement is signed with
OPSEU.)
12. The Union grievance provisions, Article 32.09 of the revised terms, set out the
following new notation in bold:
(Union grievances are suspended until a new collective
agreement is signed with OPSEU.)
13. The duration clause of the revised terms and conditions was as follows:
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Article 36 DURATION
(These terms and conditions became effective on November 18, 2009,
unless indicated otherwise. Salary increases are retroactive to
September 1, 2009. These terms and conditions will remain in effect
until a new collective agreement is entered into with OPSEU.)
36.01 This Agreement shall take effect commencing on the date of signing
and shall have no retroactive effect or application (except Salary
Schedules in Article 14 and Article 26) and shall continue in full force and
effect until August 31, 2009, and shall continue automatically for annual
periods of one year unless either party notifies the other party in writing in
January, 2009, that it desires to amend this Agreement.
36.02 Negotiations shall begin within 30 days following notification for
amendment as provided in 36.01. Proposals having application to an
individual College only which the parties to this Agreement agree are
appropriate for discussion at meetings directly between a College
Committee of three members (as appointed under 7.01) shall be held at
mutually agreed dates during the period of one month following receipt of
the notification referred to in 36.01. Failing settlement, such proposal(s)
may then be included as matters for discussion in the negotiations
between the parties of this Agreement.
14. The union’s bargaining team issued a communication to employees on
November 16, 2010 acknowledging that they had been advised that colleges
would not be accepting union grievances.
The Last Offer Vote
15. On February 2, 2010, the Council made application to the OLRB to hold a last
offer vote on the Council's offer of January 27, 2010. The official count was
finalized on February 24, 2010. More than 50% of the ballots cast were in favour
of accepting the offer.
16. The Council prepared the January 27, 2010 Management Offer for Settlement
and copies of the 24-page document were distributed to employees and available
on both parties’ web-sites.
17. The January 27, 2010 Management Offer document highlighted for the
employees that “except for the changes contained in this document, all other
provisions of the previous collective agreement will remain the same. Changes to
the previous collective agreement are underlined and bold.”
18. The Grievance procedure changes included the addition and deletion of names to
the list of agreed to arbitrators who could act as the Chair of the Arbitration panel
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and a change to Article 32.03 D to update the language to reflect recent changes
to the CCBA.
19. The Management offer also included a change t o the Duration of the collective
agreement - Article 36 as follows:
36.01 This Agreement shall take effect commencing on
November 18, 2009, save and except the changes to article
19.07 B which is effective December 1, 2009 and articles
11.01 E 3, 11.01 F 2, 11.02 C 2, 11.08 and 11.09 which are
effective January 31, 2010 and shall have no retroactive
effect or application (except Salary Schedules in Article 14
and Article 26) and shall continue in full force and effect until
August 31, 2012, and shall continue automatically for annual
periods of one year unless either party notifies the other
party in writing in June 2012, that it desires to amend this
Agreement.
20. OPSEU took the position and advised the Council that Article 36.01, the duration
article, should be changed because of its non-compliance with subsection 3(2) of
the CCBA. OPSEU specifically contested the language that required the notice
of bargaining to be provided in writing in June. It was OPSEU’s position that the
CCBA provided the option of notice within 90 days of the expiry of the collective
agreement.
21. Following the vote OPSEU continued to dispute the notice to bargain provision in
Article 36.01 on the grounds that it ran afoul of the CCBA. The parties later
agreed to alter the Duration article notice to bargain provisions to provide for 90
days.
Renewal Collective Agreement
22. Following the vote in March 2010, OPSEU refused to sign the collective
agreement as presented by the Council for signature and took the position that it
would sign a collective agreement that included the Council’s editorial comments
and summation page which formed an integral part of the last offer received. The
Council brought a bad faith bargaining charge against the union pursuant to s.4
of the CCBA for refusing to sign the agreement as presented. The OLRB, in a
decision dated June 7, 2010, found the union to be in violation of the S.4 and
directed the union to sign the collective agreement without further delay.
23. In April 2010, the Council signed the new collective agreement and on July 7,
2010 OPSEU signed the new collective agreement.
24. The renewal collective agreement includes the Union grievance provision, Article
32.09 [with the same terms] as the previous collective agreement:
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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.
Such grievance shall be submitted in writing by the Union
Grievance Officer at Head Office or a Union Local President
to the Director of Human Resources or as designated by the
College, within 40 days from the occurrence or origination of
the circumstances giving rise to the grievance commencing
at Step One of the grievance procedure detailed in 32.02.
25. The Duration clause in the renewal collective agreement is as follows:
Article 36.01 This Agreement shall take effect commencing
on November 18, 2009, save and except the changes to
article 19.07 B which is effective December 1, 2009 and
articles 11.01 E 3, 11.01 F 2, 11.02 C 2, 11.08 and 11.09
which are effective January 31, 2010 and shall have no
retroactive effect or application (except Salary Schedules in
Article 14 and Article 26) and shall continue in full force and
effect until August 31, 2012, and shall continue automatically
for annual periods of one year unless either party notifies the
other party in writing within the period of 90 days before the
agreement expires that it desires to amend this Agreement.
Grievance Scheduling Committee Reconvenes
26. On March 5, 2010, following the final offer vote, the Joint Scheduling Committee
met to start scheduling individual and policy grievances.
27. OPSEU brought 41 union grievances filed between November 19, 2009 and
February 23, 2010 forward to the Joint Grievance Scheduling com mittee for
referral to arbitration.
28. On March 12, 2010, Don Sinclair, Executive Director of the Council, wrote Mary
Ann White, OPSEU CAAT - Academic representative on the Joint Grievance
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Scheduling Committee, to advise her that the Council would not a gree to
schedule any union grievances for arbitration that were filed between November
17, 2009 and February 24, 2010. It was the Council’s position that such
grievance rights were suspended during that time as a result of the Colleges
implementing new terms of employment on November 18, 2010.
29. On March 22, 2010, Mary Ann White responded on behalf of OPSEU that it was
OPSEU's position that union grievances filed after November 18 are arbitrable
pursuant to article 32, with reference to article 36. Any issues of jurisdiction,
including the arbitrability of grievances, are properly determined by the assigned
arbitrator(s).
30. On June 30, 2010, the parties agreed that the preliminary issue regarding the
arbitrability of the union grievances would go before an arbitrator. The CAAT -
Academic Union grievances filed between November 18, 2010 and February 24,
2010 are currently held in abeyance subject to the ruling of the arbitrator on this
preliminary matter.
One other factual issue was raised. Some individual Colleges may have dealt with
Union grievances differently during the relevant period. Some accepted them and
discussed them with their local Union representatives with the aim of resolution. The
parties asked me to remain seized with the potential implications of local responses,
should that issue become relevant. However, as the following analysis and conclusions
will show, this issue has become moot.
Submissions of the Union
The Union acknowledges that the Employer imposed new terms and conditions of
employment effective November 18, 2009 that included a suspension of Union
grievances. However, the Union stressed that the bargaining unit voted on
Management’s Offer for Settlement dated January 27, 2010, that included the provision
that the new Agreement would take effect November 18, 2009, except for specified
changes to particular articles which did not include the Union grievance provisions in
32.09. Therefore, it was said that the strict reading of the language would require
acceptance of jurisdiction to hear Union grievances filed during the life of the new
Collective Agreement. In support of this, the Union traced the history of the duration
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clause of the parties’ Collective Agreement. In the previous contract, it read:
This Agreement shall take effect commencing on the date of signing and shall
have no retroactive effect or application (except Salary and Schedules in Article
14 and Article 26 . . . .)
In the Revised Terms and Conditions imposed November 18, 2009, it read:
These terms and conditions became effective on November 18, 2009, unless
indicated otherwise. Salary increases are retroactive to September 1, 2009.
These terms and conditions will remain in effect until a new collective agreement
is entered into with OPSEU.
The final language of Article 36.01 in the new Collective Agreement became:
This Agreement shall take effect commencing on November 18,
2009, save and except the changes to article 19.07 B which is
effective December 1, 2009 and articles 11.01 E 3, 11.01 F 2, 11.02
C 2, 11.08 and 11.09 which are effective January 31, 2010 and
shall have no retroactive effect or application (except Salary
Schedules in Article 14 and Article 26) and shall continue in full
force and effect until August 31, 2012, and shall con tinue
automatically for annual periods of one year unless either party
notifies the other party in writing within the period of 90 days before
the agreement expires that it desires to amend this Agreement.
The Union stressed the difference between the phrase “date of signing” and “is entered
into”, arguing that the difference is significant and signals that as soon as the new
Collective Agreement is determined, its terms become effective, unless there is a
specific duration to a particular term which is not indicated for the Union grievance
Article 32.09. The Union stressed that the Employer drafted this language and did not
include anything to suggest that there would be any limits on the Union’s right to file and
process Union grievances during the life of the contract.
Further, the Union argued that the information the Colleges sent out to the bargaining
unit members before the vote effectively promised that if the final offer were accepted,
its terms would replace the imposed terms and conditions. The literature distributed by
the Colleges included the following:
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What happens if the Final Offer is Accepted
There appears to be some confusion among faculty about what will happen if the
final offer is accepted. The following will happen:
The colleges and the union will have a full collective agreement in effect
and will remain in effect until it expires on August 31, 2012.
. . . . .
The new collective agreement will replace the terms and conditions
introduced last November.
Summary of Colleges’ Offer of Settlement to Faculty
Term of Contract
Three-year contract
Contract runs from September 1, 2009 to August 31, 2012
The Union argued that the language circulated by the Employer sent a clear message
that if the terms in the Final Offer were accepted, they would become effective
November 18, 2009, except for identified clauses that do not relate to this case. One of
those terms was the right of the Union to file grievances. Therefore, it was said that it
would be contrary to the provisions of the vote to interpret the contract in any other way.
The Union also referred to the definition provisions of the Colleges Collective Bargaining
Act, supra: “collective agreement means a written collective agreement between the
Council on behalf of the employers and an employee organization respecting terms and
conditions of employment negotiable under this Act.” The Union stressed that this
language does not require that a document be “signed” to constitute a collective
agreement. Therefore, the Union argues that th e Final Offer set out by this Employer
was effectively the “written agreement” that had the impact of becoming fully operational
because it replaced the old Collective Agreement that expired on August 31, 2009. It
was said that this provided the important continuity between the previous and the new
Collective Agreement. As a consequence, the Union argues that the date that the
language of the Collective Agreement was ultimately finalized or that the Union signed is
irrelevant in this case.
Further, the Union points out that several of the Union grievances that it attempted to
process during that period involve matters that arose under the previous Collective
Agreement or involve rights that flowed into and/or survive the freeze provisions.
Therefore it was said that nothing about the imposed terms and conditions can preclude
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access to arbitration on those matters. Some examples were given, such as grievances
concerning Article 2 “preference to full time designation”, and job security issues.
The Union argued that on a policy and “practical” level, it makes more “labour relations
sense” to allow these grievances to be heard. It was submitted that this approach would
respect ongoing statutory and contractual rights, allow for the resolution of important
vested rights and recognize the continuity of the collective bargaining relationship
between the parties. In support of its positions, the Union relied upon the following
authorities: Canteen of Canada Ltd. and RWDSU (1984) 15 L.A.C. (3d) 305 (Mitchnick);
Penticton and District Retirement Service and Hospital Employees' Union, Local 180
(1977) 16 L.A.C. (2d) 97 (Weiler); Dayco (Canada) Ltd. v. C.A.W.-Canada, [1993] 109
D.L.R. (4th) 609, 2 S.C.R. 230; Algonquin and Lakeshore Catholic District School Board
and OECTA, [2000] 61 C.L.A.S. 1 (Shime); Superior North Catholic District School
Board v. OECTA, [2000] O.L.A.A. No. 492 (Surdykowski); Alberta Liquor Control Board
and AUPE (1987) 29 L.A.C. (3d) 24 (Ponak); Hamilton-Wentworth District School Board
and OSSTF - District 21, [2004] 21 79 C.L.A.S. 57 (Newman); and Durham Memorial
Hospital and London & District Service Workers’ Union, Local 220 (1991) 19 L.A.C. (4th)
320 (Kaufman).
Submissions of the Employer
The Employer argued that none of the cases relied upon by the Union dealt with similar
facts because there is no other situation where the Employer made it so abundantly
clear that it was suspending the right to process Union grievances during the period of
the statutory freeze. The Employer stressed that on November 12, 2009, it advised the
Union that it would not accept any Union grievances after November 18th, and the terms
and conditions imposed November 18th stated clearly: “Union grievances are suspended
until a new collective agreement is signed with OPSEU.” Further, the imposed terms
made the statutory provisions allowing for the extension of time for the filing of
grievances inapplicable [CCBA s. 14(16)]. It was said that all this made it very clear to
the Union that its own grievances would no t be arbitrable until a new contract was
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signed. This was said to be in contrast to the Employer’s decision to allow individual
grievances to be processed even when no contract was in place. It was said that the
Union was fully aware of the impact of the Employer’s terms and conditions, as
evidenced in the Union’s communication to its membership on November 16, 2009
advising:
The Colleges told the faculty team and the Ministry-appointed conciliator that the
Colleges would not be accepting any union grievances. Only grievances from
individuals would be accepted. This is an imposed condition of employment.
Union grievances are policy grievances filed to protect the faculty from policies
which violate the collective agreement.
Taking away the union’s right to file a grievance on behalf of all faculty, or groups
of faculty, is a substantial takeaway and an unequivocal concession.
The Employer emphasized that nothing in any subsequent communication to the Union
or in the Final Offer documentation gave any indication that the right to file Union
grievances would be reinstated or revived retroactively. Instead it was said to be clear
that the right would not arise until the new contract was finalized. Therefore, the
Employer argued that it would be wrong to conclude that this history could be rewritten
to revive access to arbitration of Union grievances during that period.
The Employer also asserts that the current Collective Agreement should not be deemed
to have been “finalized” or in place until it was signed by both parties. It was stressed
that the contents of the contract remained in dispute after the vote, including the wording
of the duration clause. These problems were detailed in the decision of the Ontario
Labour Relations Board, issued June 7, 2010, that ultimately ordered the Union to sign
the Collective Agreement in the form presented to it by the Employer in March 2010.
Although the Employer argued that no Collective Agreement was actually finalized until
the Union did sign on July 7, 2010, the Employer pointed out that it “voluntarily” agreed
to resume acceptance of Union grievances after the announcement of the acceptance of
the Final Offer Vote on February 24, 2010. Therefore, the Employer argued that while it
could have taken the position that no Union grievances were arbitrable until after July
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7th, it is only arguing inarbitrability between November 18 and February 24, 2010.
The Employer acknowledged that the drafting of the duration clause in this contract was
unusually complicated because some provisions had already been implemented and
there was no desire to take any rights away. Therefore, it was important to identify
when certain rights were triggered. However, it was stressed that there never was any
intent to undo the suspension of the Union’s ability to file grievances between November
and February. It was argued that it would be “absurd” to conclude that the period of
suspension can be transformed back into a period when Union grievances would now
be arbitrable. It was suggested that if the Union’s position is accepted, this would
“magically convert” the suspension of the Union’s right to grieve into an “absurd legal
fiction”. The Employer argues that such a conclusion would be inconsistent with the
Employer’s right to implement changes in terms and conditions and would effectively
convert events that have already occurred. It was also argued that the duration clause
in the new Collective Agreement should read to put into effect the substantive changes
to language and rights, but not to alter the events that occurred before the new contract
was finalized. It was also said that the Union’s position is ironic because it seeks to
assert rights prior to its signing the contract on July 7th.
It was stressed that the “reality of collective bargaining” is that the parties understand
that the imposed terms and conditions alter the expectations of the parties. It was said
that there could be “no reasonable expectation” on the Union’s part that the finalization
of the Collective Agreement would alter or change the nature of the terms or conditions
of employment that suspended its right to grieve from November 18, 2009 to February
24, 2010. Therefore, it was said that the Union should understand that the suspended
right to file Union grievances during the relevant period cannot be “written out” of effect
after the fact. Further it was stressed that the rights under the new Collective
Agreement are not enforceable during a period when no grievance rights existed.
Therefore, it was said that the Union could have no reasonable expectation that the
finalization of the terms of the contract would alter the nature or effect of what had
happened up to that point.
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Turning to the issue of Union grievances that may involve rights arising from the
previous Collective Agreement or that vested prior to November 18, 2009, the Employer
points out that the Union had notice on November 12, 2009 of the fact that the Employer
would be suspending the right to file Union grievances effective November 18, so the
Union could have filed any of those grievances in the interim and/or filed them after
February 24, 2010. The Employer also argued that the Union cannot expect that the
provisions of the previous contract would stay in place after it expired and that it takes
clear language to transform the legal effect of things that have been done.
In support of all these submissions, the Employer relies upon Penick Canada Ltd. and
International Chemical Workers, Local 412 (1966) 17 L.A.C. 296 (Weatherill);
Commemorative Services of Ontario and SEIU, Local 204 (1997) 69 L.A.C. (4th) 11 (G.
Brandt); Hamilton Wentworth District School Board v. OSSTF, District 21, [2004]
O.L.A.A. No. 536 (Newman); Capital Taxi v. CAW-Canada Local 6056 (2006) 149
L.A.C. (4th) 97 (MacDowell); Royal Diamond Casino v. National Automobile, Aerospace,
Transportation and General Workers Union of Canada, Local 3000 (2003) 118 L.A.C.
(4th) 371 (Dorsey); Precious Plate Ltd. v. Communications and Electrical Workers of
Canada (1987) 27 L.A.C. (4th) 329 (O’Shea).
Reply Submissions of the Union
In response to the Employer’s suggestion that the Union is seeking an “absurd” result in
this case, the Union submitted that the concept of retroactivity is, itself, an equally
“absurd” concept or “legal fiction”, but it operates to allow contractual rights to be
continued from contract to contract without interruption, despite the timing of actual
negotiations. In contrast, it was said that it would be “absurd” to prevent these
grievances from going forward when it makes “good labour relations sense” for them to
be resolved.
Further, it was submitted that it would be wrong to conclude that the Collective
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Agreement was not operational or finalized until the signing on July 7 th because all the
components of the Collective Agreement were “alive” and put in place as outlined in the
Employer’s language for the Final Offer vote. Further, for all other purposes the parties
conducted themselves after February 24th as being bound by those terms, and the
events thereafter only pertained to the finalization of the details of language, not
substantive rights.
Decision
This case raises unique questions regarding the consequences of these parties’
bargaining experience.
It is helpful to approach the case with the relevant principles from arbitral jurisprudence
in mind. The parties' relations are governed by statute and their collective agreement.
Pursuant to the Colleges Collective Bargaining Act, their Collective Agreement must be
in writing, but its binding effect does not depend on the existence of a “formal
document”. This is because negotiations are not always concluded in a “model form”
and sometimes require some time before all the “t’s” are crossed and the “i’s” are dotted
on a formal contractual document. So the arbitral authorities simply require clear or
“certain” language that articulates terms that are identifiable by a third party. Once that
is achieved, a collective agreement can be said to be in place: see Canteen of Canada,
supra, at p. 307. Therefore, it is not necessary for a bargain to be signed for its terms to
be effective, so long as they are clear and discernable.
Jurisprudence has also given us guidance on the importance and effect of “duration”
clauses in collective agreements. Their purpose is to provide a fixed date for the
negotiation and renegotiation of successive agreements and they can provide continuity
or limits on terms of the rights and obligations of the parties. They can ensure that the
basic terms and conditions remain in place unless modified by the parties. Therefore,
duration clauses are interpreted as conferring retroactive benefits unless specific
language indicates otherwise or unless this would lead to an absurd result: Penticton
and District Retirement Service, Algonquin and Lakeshore Catholic District School
15
Board and Superior North Catholic District School Board and O.E.C.T.A., supra.
However, while many duration clauses often make specific monetary clauses
retroactive, such as wage rates, it requires clear language to transform the legal effect
of things done by the parties during the time when no collective agreement language
was in effect: Penick Canada Ltd. and International Chemical Workers, Local 412,
supra.
Another fundamental concept that jurisprudence explores is the question of the
enforceability or effect of rights that arise under expired collective agreements. The
seminal case is Dayco (Canada) v. C.A.W.-Canada, supra. It determined that where
rights under a contract are intended to survive the expiration of the collective agreement
or “vest” during the term of a contract, such as retirement benefits, an arbitrator does
have jurisdiction to hear grievances that concern those rights, even if they are filed after
the expiry of the contract. This principle was also applied to a job posting grievance that
was filed after the expiry of the contract: Algonquin and Lakeshore Catholic District
School Board and O.E.C.T.A., supra. On the other hand, where no collective
agreement or dispute resolution mechanism is in place, there may be no jurisdiction for
an arbitrator to enforce a right that arose after the expiry of the old contract: Royal
Diamond Casino v. National Automobile, Aerospace, Transportation and General
Workers Union of Canada, Local 3000, supra.
These principles must now be applied to the facts at hand. To do this, it is helpful to
summarize the chronology of relevant events:
June 3, 2009 Notice to bargain was given
August 31, 2009 Previous Collective Agreement term ended
November 12, 2009 Collective bargaining talks were “broken off” and the
Employer advised the Union that it would impose new terms
and conditions effective November 18, 2009
November 18, 2009 New terms and conditions imposed, including the term
“Union grievances are suspended until a new collective
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agreement is signed with OPSEU”
February 10, 2009 Final Offer Vote held on Employer’s Offer
February 24, 2009 Announcement of Final Offer Vote in favour of acceptance
March, 2009 The Employer presented the Union a collective agreement
for the Union to sign with a duration clause that read: “This
Agreement shall take effect commencing November 18,
2009 save and except the changes to article 19.07 B which
is effective December 1, 2009 and articles 11.01 E 3, 11.01
F 2, 11.02 C 2, 11.08 and 11.09 which are effective January
31, 2010 and shall have no retroactive effect or application
(except Salary Schedules in Article 14 and Article 26) and
shall continue in full force and effect until August 31,
2012, . . . .
June 7, 2009 The OLRB ruled that the Union had failed to bargain in goo d
faith by failing to sign the Collective Agreement as presented
to it by the Employer in early March
July 7, 2009 The Union signed the new Collective Agreement
As is always the case in labour arbitration, the task of the arbitrator is to give effect to
the results of the collective bargaining process in the context of t he parties’ statutory
rights. In the case at hand there might have been an interesting theoretical debate that
could be explored as to when these parties’ Collective Agreement was “finalized”. Was
it the date of the Vote, the date the Vote was announced, the date the Employer
presented a document for signature or that it signed it, or the date the Union was
ordered to sign or the date when the Union finally signed? However, the fact is that this
does not have to be determined. What we have here is the benefit of time that shows
us that a Collective Agreement does exist. By the parties’ agreement, they have a
Collective Agreement that “came into effect” November 18, 2009. The task then
becomes to determine the effect of the parties’ language with respect to its Duration
clause and what they intended with respect to retroactive effect.
It must be concluded that they chose to put their terms into effect November 18, 2009.
They would have been within their rights to give some or no retroactive effect to any of
17
its terms. They could have made the contract effective as of the date it was signed.
They did this in their previous contract, except with respect to certain salary and related
provisions that were made retroactive. However, in this round of bargaining, they chose
to exercise their respective rights and bargaining power to craft a Duration clause that
put the Agreement in effect as of November 18th, months earlier than its actual signing
or “finalization”. This had the desired effect of keeping in place the salary increases that
had been unilaterally implemented as of September 1st. The parties also provided that
some specified terms would come into effect December 1, 2009 or January 31, 2010.
This shows that the parties were able to specify what terms had effect before and after
November 18th. It is helpful to see this clause with its phrases separated to understand
its meaning:
This Agreement shall take effect commencing on November
18, 2009,
save and except the changes to article 19.07 B which is
effective December 1, 2009 and articles 11.01 E 3, 11.01 F
2, 11.02 C 2, 11.08 and 11.09 which are effective January
31, 2010,
and shall have no retroactive effect or application (except
Salary Schedules in Article 14 and Article 26)
and shall continue in full force and effect until August 31,
2012, and shall continue automatically for annual periods of
one year unless either party notifies the other party in writing
in June 2012, that it desires to amend this Agreement.
When seen this way and applied to the context of these parties’ bargaining, it becomes
clear that the parties agreed that their new contract would come into effect on November
18th, except for certain articles that would trigger later, and that there should be no
retroactive effect or application prior to November 18th, except for the Salary Schedules
that had actually been implemented as of September 1st. Therefore, they were
respecting the Salary scales in place before the effective date of the contract, but
agreeing that the remainder of the Agreement becomes effective as of November 18,
2009, except for those specified items that would come into effect December 1 and
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January 31st. To read this any other way would lead to the absurd result that there
would not be any effective terms and conditions in place as of November 18 th. It is a
basic precept of contract interpretation that all words have to be given meaning.
Therefore, that date must be given meaning and effect.
What then were the rights of the parties as of November 18 th with respect to the filing of
Union grievances? The new Collective Agreement that came into effect that day
contained the same provision as the previous contract regarding Union grievances.
There were no changes made to Article 32.09. That provision allowed for the Union to
file certain types of grievances arising out the Collective Agreement. Nothing in the
contract limits the Union’s rights to file grievances on the basis of any date. One would
expect clear language to limit or read out the Union’s right to file grievances arising out
the Collective Agreement. This is a right protected by Article 14 of the Colleges
Collective Bargaining Act, supra. Therefore, absent any clear language in Article 32.09
or elsewhere in the Collective Agreement, it is impossible to conclude that the new
Collective Agreement intended to limit the Union’s right to grieve differences arising on
an unspecified date after the Collective Agreement came into effect.
The Employer has presented a forceful argument, asserting that it had made it clear that
it had exercised its right to change conditions by “suspending” the Union’s right to file
Union grievances between November 18, 2009 and February 24, 2010. The terms had
also included that the right would not revive until the Union signed a new contract.
Indeed, the Union’s own communications to its membership cited above indicate that it
understood the Employer’s intent and desire. Therefore, that was the situation in place
during the period when the altered terms were imposed. However, the effect of that
situation was eliminated when the new Collective Agreement’s terms contained no limit
on the retroactive application of Article 32.09 and recognized anew the Union’s right to
file grievances. For the Employer to succeed in this objection to arbitrability, one would
have to have clear language that signaled the parties' agreement that the Union’s right
to file and process Union grievances does not take effect until February 24th or some
other specified date. No such language exists in the parties’ Collective Agreement.
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Therefore, this cannot be seen to be akin to the situation in Royal Diamond Casino v.
National Automobile, Aerospace, Transportation and General Workers Union of
Canada, Local 3000, supra, where there had been no dispute mechanism in place at the
time the Union wanted to process grievances. While the “mechanism” had been
suspended, the wording of this Duration clause put it back in place “effective November
18, 2009” and thereby forms the foundation of the Union’s right to process those
grievances.
These conclusions do not lead to any “absurd” result as the Employer suggests. Yes,
they do undo the Employer attempt to bar Union grievances that were filed during the
period of altered terms and conditions. But the achievement of the Collective
Agreement wipes out many of the effects of the alterations. That is precisely what the
new Collective Agreement is designed to achieve. Further, the collective bargaining
relationship and regime contemplates the ability of the parties to pick and choose the
duration and applicability of contractual rights and terms during periods of a contrac t’s
life, during a statutory freeze and even during the gap when no contract is in place.
Giving retroactive effect to the provisions that the parties choose to keep in place often
bridges that gap. No “absurdity” is created when the parties choose to keep the
fundamental right to grieve in place. This situation is quite different than the ones in the
cases cited by the Employer and in particular Royal Diamond Casino v. National
Automobile, Aerospace, Transportation and General Workers Union of Canada, L ocal
3000, supra. In those cases there were no collective agreements in effect at the time of
the grievance or alleged violations, whereas in our case the parties have agreed that
their Collective Agreement came into effect November 18th. While this may be a
rewriting of their particular histories, that is the prerogative of their bargaining creativity.
Since they have chosen to give effect to their contract as of that date, that decision must
be enforceable.
For all these reasons, it must be concluded that nothing in the Collective Agreement
precludes the arbitrability of Union grievances filed during the period in question.
Therefore, I need not address the issue of whether certain grievances should be treated
20
differently because they involve rights that may have accrued during or continued after
the life of the previous agreement. However, it should be clear that this ruling does not
affect any other arguments that remain available to the parties with respect to the merits
or other aspects of arbitrability relevant to the specific cases.
I remain seized with respect to the implementation of this Award.
Dated at Toronto this 18th day of January, 2011.
"Paula Knopf"
___________________________
Paula Knopf - Arbitrator