HomeMy WebLinkAboutRybuck 04-10-22
BETWEEN:
BEFORE:
FOR THE UNION:
FOR THE EMPLOYER:
HEARINGS:
IN THE MATTER OF AN ARBITRATION
Integrated Services Northwest
(The Employer)
- and -
Ontario Public Service Employees Union
(The Union)
Rybuck dignity and respect grievance
R. Jack Roberts, Arbitrator
Jim Gilbert
District Grievance Officer
Geoff G. Jeffery
Counsel
Kenora, Ontario
August 20, 2004
Briefs Submitted September 7 & 28; October 13,2004
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INTERIM AWARD
I. Introduction:
At the outset of the hearing in the matter, counsel for the employer entered a preliminary
objection to my jurisdiction under the dignity and respect clause of the collective agreement to
entertain the merits of the grievance herein. For reasons which follow, the preliminary objection
is allowed.
II. The Nature of the Dispute:
The dispute between the parties focused upon interpretation of the preamble of the
collective agreement, which read, in pertinent part, as follows:
ARTICLE I - PREAMBLE
1.0 I (a) The general purpose of this Agreement is to establish and maintain
collective bargaining relations. . . and to provide for. . . settling complaints or
grievances which might arise hereunder. The Union recognizes the obligation of
the Employer to provide efficient service to its clients and to the public.
(b) It is recognized the Agency exists for the purpose of fostering, enhancing and
supporting successful functioning in children, parents, families and adults. . . The
parties recognize that in order to achieve the Agency's objectives, employees. . .
must and do undertake to work together with the Employer towards the common
objective of providing the best possible service to the clients ofthe Employer and
the public.
( c) It is the expectation that the Employer and its Employees will treat each
other with dignity and respect.
1.2 The Employer agrees that there will be no intimidation, discrimination,
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interference, restraint or coercion. . . because of membership in the Union.
1.3 Where the masculine gender is used in this Agreement it shall be deemed to
include the feminine gender.
The parties referred to article 1.01( c) of the preamble, above, as the "dignity and respect"
clause. It was negotiated into the agreement in the last round of collective bargaining. Both
parties agreed that it was unique, and not likely to be found in many other collective agreements.
When the dignity and respect clause was alleged to have been breached by the employer
in the grievance leading to the present arbitration, the employer objected to jurisdiction. It was
submitted that the dignity and respect clause was not a substantive provision ofthe collective
agreement, in the sense of being a source of rights and obligations. As a result, it could not
furnish a foundation for a grievance. The union submitted that, to the contrary, the dignity and
respect clause conferred substantive rights upon members of the bargaining unit and that I should
take jurisdiction of the merits of the matter.
III. Relevant Factual Background:
In a statement of particulars that the union provided to the employer shortly before the
hearing, the union set forth a great number of examples of how the employer allegedly breached
the grievor's right to be treated with dignity and respect. The complaints were very wide-
ranging. They ranged, inter alia, from complaints about being treated rudely to complaints about
not being given requested training, not being consulted in hiring decisions, not having telephone
calls returned, not being granted requested time off, not being granted an ergonomic assessment
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of her office, not being allowed to order and buy supplies, and not receiving payment for certain
overtime at the rate of time-and-one-half.
Little other material evidence was provided on the preliminary objection. At the end of
oral argument, I noted that neither party had called any extrinsic evidence of the representations
the parties made to each other when the dignity and respect clause was negotiated into the
agreement. The representative of the union, Mr. Gilbert, then offered to call extrinsic evidence
from a local union representative who participated in negotiating the dignity and respect clause
into the collective agreement. He indicated that this evidence might help shed light upon the
question that I noted. The local union representative, however, was not in attendance at the
hearing due to illness and would have been required to come to the hearing from his sick bed.
Moreover, counsel for the employer, Mr. Jeffery, made an objection that entering evidence after
closing arguments would be highly irregular and perhaps prejudicial. In view of these
considerations, I declined Mr. Gilbert's offer.
I also indicated to both parties that I was wondering about the effect, if any, of casting
the dignity and respect clause in the form of an expectation. Both parties offered to provide me
with briefs addressing this issue, and I accepted. The submission of the briefs was completed on
October 13, 2004.
IV. The Issues Addressed by the Parties:
In their submissions, the parties addressed the following issues:
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(1) Whether the positioning of the dignity and respect clause in the preamble to
the collective agreement indicated that it was intended to be an "on faith,"
"motherhood" or "pious hope" clause of the kind usually found in preambles, and
accordingly was incapable of conferring a substantive right that could be grieved;
and,
(2) In any event, whether casting the dignity and respect clause in the form of an
expectation showed that the parties did not intend to confer such a substantive
right.
These issues will be addressed hereinbelow:
V. Consideration of the Issues:
(1) The Effect of Positioning the Dignity and Respect Clause in the Preamble:
Counsel for the employer, Mr. Jeffery, submitted that by placing the dignity and respect
clause in the preamble, the parties demonstrated that they did not intend for it to confer any
substantive rights. The general purpose of a preamble, he said, was to assist in the interpretation
of the substantive clauses of a collective agreement. Citing Brown & Beatty, s. 4:2130, he noted
that, as the learned authors observed, a preamble "has no independent validity as a source of
rights or obligations." This principle of law, he submitted, was of longstanding in arbitral
jurisprudence, having derived from Re United Packinghouse Workers, Local 114 & Canada
Packers Ltd. (1958), 9 LAC. 200, at 202 (Laskin). It remained good law today, he added, as
illustrated by the reference to it in the relatively recent case of Re Edmonton Women's Shelter
Ltd. and Canadian Union of Public Employees, Local 3341 (1992),26 LAC. (4th) 118 (Alta.,
Power). At the same time, Mr. Jeffery candidly conceded that "there was one fly in the
ointment" of his argument, in that another provision of the preamble, article 1.02, clearly
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conferred a substantive right to be free from discrimination on the basis of union membership.
His explanation for this was that article 1.02 was fairly pro forma in nature, and, in any event,
did not impact upon the "on faith," "motherhood" or "pious hope" nature of the provisions of
article 1.01, including article 1.01( c).
Counsel for the union, Mr. Gilbert, zeroed in on the "fly in the ointment" that Mr. Jeffery
acknowledged in his argument. He submitted that the presence of an admittedly substantive
provision in the preamble showed that the act of placing the dignity and respect clause in the
preamble did not indicate anything about the intention of the parties. It certainly did not show
that the parties intended the dignity and respect clause to be merely interpretive in nature and not
a source of rights and obligations. The only time that this might happen, he said, would occur
when a preamble was placed outside the body of a collective agreement and not enumerated
with the rest of the provisions, as in Re Sergeant Hardware of Canada Ltd. (1966), 17 L.A.C. 23
(Lane). While he agreed that a general provision in a numbered preamble, as here, could not
override a more specific provision of a collective agreement, citing Re Ministry of Correctional
Services and OPSEU (Bujeya) (1989), G.S.B. No. 217/89 (Slone), he stressed that this was not
the case here. There was no more specific provision with which the dignity and respect clause
was said to conflict. As for the Canada Packers case, supra, upon which the employer relied,
Mr. Gilbert noted that the arbitration board in that case actually concluded that the "objects"
clause therein involved "in part an expression of faith with no more obligatory effect than the
preamble, . . . [but also] provisions that involved acceptance of obligations." Id., at 202. The
dignity and respect clause herein, he submitted, likewise involved acceptance of obligations that
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were enforceable at arbitration even though it was positioned under a heading called "preamble."
I found much that I could agree with in the submissions of Mr. Gilbert on this issue. It
seems to me that when the parties saw fit to include in the preamble the article 1.02 right not to
be discriminated against for union membership, they demonstrated that they did not separate the
preamble from the remainder of the collective agreement with the same degree of legal nicety as
was contemplated in the Canada Packers case, supra. As a result, the preamble of the agreement
became an amalgam of "pious hope". and substantive provisions. Article 1.01 (a), for example,
was a typical "on faith" or "pious hope" clause setting forth the general purpose of the agreement
and the union's recognition of the employer's obligation "to provide efficient service to its clients
and to the public," while article 1.02 was substantive in nature.
Nor does it seem possible to isolate article 1.01 from the remainder of the preamble and
infer from the positioning of the dignity and respect clause within it that the parties probably
intended it to be nothing but a "pious hope" clause. A review of article 1.01 of the preamble
indicates that it might not have been intended as the exclusive repository of the preamble's "pious
hope" clauses. While, as I have noted, article 1.01 (a) was such a "pious hope" clause, it seems
uncertain whether the other pre-existing subsection of the article, article 1.01 (b), was similarly
benign. In addition to recognizing the employer's purposes, article 1.01 (b) required the union to
recognize that employees "must and do undertake to work together with the Employer" to
provide the best possible service to clients and the public. Undertakings are usually regarded as
sources of rights and obligations. Given this, it would seem arguable that, as in Canada Packers,
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supra, article 1.01 (b) contained, at least in part, "provisions that involve acceptance of
obligations, albeit of a generalized nature." Id., at 202.
The issue must be decided in favour of the union. I am not convinced that the positioning
of the dignity and respect clause in the preamble, without more, was sufficient to show on a
balance of probabilities that the parties did not intend the clause to be a source of contractual
rights and obligations.
(2) The Effect of Casting the Dignity and Respect Clause as an Expectation:
I am deeply indebted to Mr. Jeffery and Mr. Gilbert for the exhaustive efforts that they
made in their briefs to assist me in construing what the parties must have intended when they cast
the dignity and respect clause in the form of an expectation. Mr. Jeffery canvassed every
possible meaning of the word "expectation" to be found in numerous dictionaries and on-line
websites. He also canvassed various uses of the word "expectation" by arbitrators in framing
their awards. Mr. Gilbert canvassed numerous dictionary definitions and, in addition, sought to
extrapolate possible meanings from the use of the word in various statutes and even the
employer's own policies and procedures.
Whenever arbitrators are presented with unique contractual provisions that are capable of
extremely broad interpretation, they generally construe them narrowly in order to "avoid
frustrating the true intent ofthe parties." Re Corporation of the City of London and C. UP.E.,
Local] 07 (1992), 31 LA.c. (4th) 224, at 228 (Dissanayake). It goes without saying that the
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dignity and respect clause herein was so broadly phrased as to be potentially sweeping in scope.
Ifproof of this were necessary, it would readily be found in the breadth of the complaints that the
grievor presented in the statement of particulars filed by the union. They ranged from being
treated rudely to not receiving overtime pay at time-and-one-half. Moreover, both parties agreed
that the dignity and respect clause was a unique provision, not likely to be found in many other
collective agreements. With these considerations in mind, I find that I must adopt a narrow
approach toward construing the dignity and respect clause.
The dictionary and other definitions that counsel referred to in their briefs provided an
array of meanings for the word "expectation." They included, inter alia, "await, hope,"
"anticipate," "forecasting something to happen," and, "to think or believe something will
happen." These meanings also appeared to be reflected in the various usages of the word
"expectation" in the statutes and arbitration awards that were brought to my attention in the
briefs. No matter which of the above meanings is attributed to the word "expectation" as used in
the dignity and respect clause, however, one thing seems to be certain: Any way you cut it, an
expectation does not amount to a contractual right or obligation.
In the light of this, I find that when the parties cast the dignity and respect clause in the
form of an expectation, they signalled that it was not intended to confer upon either the employer
or the employees a right or obligation that could be grieved. It was intended instead to act, as
Mr. Jeffery contended, as an interpretive tool to support grievances under other provisions ofthe
collective agreement.
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Mr. Gilbert submitted that to interpret the dignity and respect clause in the above manner
would deprive it of any real meaning. The dignity and respect clause would be rendered a nullity
-- something that the parties could not have intended. With respect, I disagree. It seems to me
that the dignity and respect clause would be most useful as an interpretive tool, particularly in
grievances claiming that management rights were not exercised reasonably or in good faith. It is
no secret that today, arbitrators have become sceptical about entertaining such grievances out of
concern that the grievance and arbitration process was liable to abuse through the filing of
management rights grievances seeking to litigate matters that never were part of the bargain
reached in negotiations for the collective agreement. See my own award in this area, Re Coca-
Cola Bottling Co. and UFC W (June 4,2003), at 8 - 13. The dignity and respect clause would
demonstrate in concrete terms that treating each other with dignity and respect was indeed part of
the bargain. This issue is decided in favour of the employer.
VI. Conclusion:
The preliminary objection of the employer is allowed. I do not have jurisdiction under
the dignity and respect clause to entertain the merits of the grievance herein.
Dated at Toronto, Ontario, this 22nd day OfOctobe;4. /;1
R. Ja R erts, Arbitrator
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