Loading...
HomeMy WebLinkAboutRachar 78-28-02IN THE MATTER.OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY BOARD OF ARBITRATION: APPEARING FOR THE COLLEGE: APPEARING FOR THE UNION: •- and - THE ONTARIO PUBLIC SERVICE EMPLOYEES' UNION GrievatiLe of Mr. E. Ross Rachar G.J. Brandt, Chairman W.A. Correll, College Nominee Chris Trotter, Union Nominee C,G. Riggs, Counsel P.T. Ryers, Director, Personnel Services N. Prokos, Chairman, Electrical -Electronics Division Richard Nabi, Grievance Officer The Ontario Public Service Employees' Union E. Ross Rachar, Grievor The hearing was held in London on October 13, 1977 and November 11, 1977. A A W A R 0 This is a grievance of Mr. Ross Rachar in which he seeks certain relief in respect of the scheduling of his normal work load at times schen he is required to be absent from his duties to participate in onion activities. The grievor is a full-time member of the Faculty at Eanshawe College and in that capacity is employed in the Electrical/Electronics ;division. His teaching schedule is as setout in Article 4.01 (Group 1). Under that provision he has a schedule which comprises.a maximum of 19 teaching hours per creek, 700 teaching hours per year, and 180 contact days per year. The grievor has been active for a number of years in Union affairs and, until fairly recently, it had been possible to schedule his teaching responsibilities to the College around his service responsibilities to the Union in such a way that he could continue to attend to his Union business without compromising his ability to fulfil his obligations to the College. In the past his Union activities have concerned him both with the administration of the affairs of the local unit as well as province wide bargaining. Currently he is not officially involved in the administration of local union affairs. However, he is an elected representative to the College's Pension Committee, which is a provincial union committee, and is a member of an adhoc insurance committee, also a provincial union committee, The demands of those two committees require that the grievor be available to attend meetings in Toronto at an approximate rate of two meetings per month. Prior to January of 1976 it remained possible for the grievor to attend at a Tuesday meeting of these corrumittees since there was no significant conflict with his timetable. Horiever, in January of 1976, the timetable was changed such that Tuesdays, the regularly scheduled committee meeting date, became a very heavy teaching day for the grievor. As a result of this it became necessary for the College to attempt to reschedule the grievor's classes in such a way as to permit him to attend to his Union business. From the point of vier of the grievor this rescheduling was•freguently accomplished in such a way as to prejudice the interests of the students. For example, he stated that in some cases classes were rescheduled towards the end of the semester thereby putting greater strain on the capacity of the students to meet their submission deadlines and on the faculty to meet the mark,ing deadlines. Similarily it was suggested that: mature students who had part-time jobs and v.ho had o►-ganized their part-time jobs around what they believed to be a relatively fixed timetable, found it difficult to attend at a rescheduled hour. Finally, evidence was given with respect to one specific day, November 2, 1976, when the College's attempt to reschedule sir, of the grievor's scheduled class hours for that day, a day on which he was required to be array upon Union business, proved rather ineffective. It is unnecessary to,relate the details of that occasion other than to note that a lab had been rescheduled in a lecture room, a lecture for a class of 30 students had been rescheduled in a room which would hold only 15 students and another lab had been rescheduled to run coterminously with another activity in the same lab. There is some evidence which I would, indicate that co,"munication between the grievor', Mr. P'-O'1os, the hepartrl2n. Chairman, and htr. Jackson, the 1i3��eca5le Co-ordinator, is not the most efficient. We hesitate to attribute any blame or responsibility in this matter for 4 -re do not believe that the issue before the Board turns on such a matter of fact. It appears that the confusion which surrounded the attempted rescheduling of themissed classes on November 2, 1976 is what led to the filing of the grievance. Essentially it is the position of the grievor that, under the appropriate provisions of the collective agreement (to be outlined below), when the grievor is obliged to be absent from his duties on Union business, the College ought not to simply reassign or reschedule the lost teaching hours at a later time. The grievor submits that such an arrangement is not a true "release from duty" as is contemplated by Article 11.01 of the agreement. Instead, it is 'submitted, the College should make use of the woney provided to it by the Union (according to the provisions of Article 11.42), money intended to reimburse the College for service lost through the necessity of having one of its employees absent on Union business, to hire a replacement for the grievor, to teach the lectures and labs in their regularly scheduled tiiaetable periods. Alternatively, it is submitted that, in the event that a substitute cannot be found in time and it,becomes necessary to reschedule the grievor at a later date,_that the.grievor should be paid extra for that work, this _payment to be calculated according to a formula. Finally, the grievor claims that he should be reimbursed at the rate of $50.44 per hour in respect of all rescheduled hours which he has taught since January lst 1975, the date of the alleged violation of the collective agreement. 3. would, indicate that co,"munication between the grievor', Mr. P'-O'1os, the hepartrl2n. Chairman, and htr. Jackson, the 1i3��eca5le Co-ordinator, is not the most efficient. We hesitate to attribute any blame or responsibility in this matter for 4 -re do not believe that the issue before the Board turns on such a matter of fact. It appears that the confusion which surrounded the attempted rescheduling of themissed classes on November 2, 1976 is what led to the filing of the grievance. Essentially it is the position of the grievor that, under the appropriate provisions of the collective agreement (to be outlined below), when the grievor is obliged to be absent from his duties on Union business, the College ought not to simply reassign or reschedule the lost teaching hours at a later time. The grievor submits that such an arrangement is not a true "release from duty" as is contemplated by Article 11.01 of the agreement. Instead, it is 'submitted, the College should make use of the woney provided to it by the Union (according to the provisions of Article 11.42), money intended to reimburse the College for service lost through the necessity of having one of its employees absent on Union business, to hire a replacement for the grievor, to teach the lectures and labs in their regularly scheduled tiiaetable periods. Alternatively, it is submitted that, in the event that a substitute cannot be found in time and it,becomes necessary to reschedule the grievor at a later date,_that the.grievor should be paid extra for that work, this _payment to be calculated according to a formula. Finally, the grievor claims that he should be reimbursed at the rate of $50.44 per hour in respect of all rescheduled hours which he has taught since January lst 1975, the date of the alleged violation of the collective agreement. ___j I,-, is appropriate at this star: to setolut the rel ;c an'. provisions of the collective agreement. Tiie provision :vrrlich is Cf principal relevance in connection with this i:rattler is Article 11. UNION BUSINESS "11.01 That up to a maximum of five (5) persons per College be released from duty for sufficient time to engage in Arbitration Board Hearings or Provincial Union Committee Meetings for members thereof or U,iion conventions for elected delegates thereto (which may, include seminars or conferences which will be consider- ed by the College concerned on their individual merit(s), provided such release does not in the opinion of the President, interfere with the efficient operation of the College. 11.42 The regular salary, pensions, sick leave, insuran;c and other fringe benefits of persons released from duty under Section 11.01 shall continue to be paid by the College, and the Union shall reimburse the College for the salar,, portion thereof. 11.43(a) The parties agree as to the desirability: of a mutually acceptable basis for reduced teaching or work assignment of a full-time person who has completed his probationary period for the purpose of assisting, employees and the Local in the administration of this Agreement and the business directly pertinent thereto. The parties also agree that it is desirable that such basis be mutually resolved at the College level by the College and Union Local Committees in order to take into account variations of. (i) the philosophical desirability of any teaching or work assingment reduction having regard to the Local structure of its officers and .their function (ii) the distribution of employees at the various campuses concerned and the distances involved together with the other physical characteristics and organization of the College concerned. (b) In recognition that resolution locally as referred to in (a) above may not be possible for a variety of reasons, the parties agree to the following basis for reduction in teaching or work assignments to facilitate assistance to employees and the Local in the administration of this Agreement and the business directly pertinent thereto: 5. /i/ in 98:k Cnl)��e n[ 'r," or )�sy [u'l-�jxx: ��rs-�s in`thpaC0demi, bar"Iaioix] unic­ -,here shall h* of rndurtim) thaCo0xld 0tberxise bn�,o ass" ;!,CJ) fron,. 3 co 6 teaching hours Ver xaeK in the case of 6 tcx!,ncr� (i 1 �in each Col leg8 of more than 400 full -�ime persons i' the academic bargaining unit, there shall be t:V'unity of reduction that would otherwise have been assign- ed of from. 3 to 5 teaching hours per week in the case of a teacher, (iii) in the case of m librarian or counsellor, one onit of odu Lion Shall be 9 hours of work assignment. 11 .04(a) The President of 0.P'5.C.U. Shall advise the Colle'e'President by June l of each year of the persons College or persons to have u reduced teaching or work assignment pursuant to the provisions of (x) or (b) above and the College shall arrange the reductions as provided herein effective for the academic year commencing September l subject to the availability of a suitable replacement or substitute for the person(s) concerned and the efficient operation of the College. . (b\ The regular salary, pensions. sick leave, insura'c' and other fringe benefits of persons With a duced teaching orwork assignment pursuant to Section ll,O3 above shall continue to be pa 'd by the College and the Union shall reimburse the College for the salary portion thereof. /c\ l t iyagreed that Such persons when active in Union business shall not hinder or interfere with College assignments and the regular performance of employee(s) duties and respunsihilites and shall ' �ith College officials in this objective. � ' 11,05 On or prior to cmnmenc8meDt'of employment, each new employee shall be provided with a copy Of this Agreement, and the names and addresses of the Union Local executive if supplied to the College by the -Union Local .» ' It is also necessary to record the provisions of u letter of intent as follows: "This will confirm the -advice given in negotiations by the Colleges Uegotiuttng Committee that in the admin- istration of Section l]'U2 of the Memorandum, the money paid there under to the Collage by the C'S'A,O. (curreni)y O.P.S.E.U.) shall be used to provide duty replacements, where necessary." TI ..: t i:i i n , s ,'t t r.c i p:1 i ii;";,-, ..... [.!!'.`.,� c, i•: ,: i ;a lira: shou i be drawn from the fdct �!i- accordift- t:, the pr'taOKioils Of Arttyle I1.G2Ls have been 1,�ade .herein the union reimburses the College in respect of any salary which the College continues to pay to its employees during those periods of time when such employees are released 'from duty according to the provisions of Article 11.01, ffie onion takes the position that, unless the college uses these (monies to hire a replacement to carry out the duties an employee absent on Union business, it is not using the money for the purposes contemplated implicitly by Article 11.02 and explicitly by the letter of intent. Pt.itting th? matter another way= it is the position of the Union that, if the College reschedules the work regularly assigoed to the grievor to be doge at a later date by the grievor it corrtinues'to have too benefit of his teaching -services and, consideringthe fact that it will be reirribursed by the Union for salary paid out during the day of absence, it Tril l_ reap something in the nature of windfall , In addition to the arguments directed to Article 11.02 the Union also made certain submissions relative to the proper interpretation to be given to Article 11,01 and to the question as to whether or not the words "released from duty" mean that the employee be excused for all time from performing the particular duties regularly scheduled on a day of necessary absence or whether they merely mean that the employee will be excused from the performance of his duties on that day in the expectation that he will be required j 1 to perform them .a t some other time. The difference between these two � positions %•.as characterized at the hearing as -a difference between 7. i za, not _n}! ;.y': "ro ieast.-JI From duty" cGlf{?reht .Ind a reduction in the v _ - c M.n ' e eas_ C.. 0 in i, a s:aiplG rel _�,r'_icui f, ti .,-- gas a11,ead y bee I, the subject o: an 1djudic.>.tior: in a grievance.raised by this grievor against this same e?nployer. (Re Ross Rachar, Public Service Grievance Board, Grievances 759174). In that case the grievor submitted that "the College will riot � recognize c?y entitlement to release from duties in accordance v -ilii a reasonable interpretation of Section ll, for the purpose of engaging in Association business". The decision of the Public Service Grievance Board indicates that, mor- specifically, the grievor v. -as there taking the position that a reasonable inte?-preta- tion of the vords "released from duty" indicated that the ersalo.iee should be relieved entirely or she need to performm, the actde!?;i-duties. may be noted that, apart from certain other di ffer er?cf2s , that. is C: e precise claim, raised before this Board. The Public Service Grievince Board "found it very difficult to accept 11r, Rachar's interpreiiJ*Jrw, of the clauses in question" and concluded that the words "released fra'n duty for sufficient time to engage in Association business means, allowed to take sufficient time off to attend to Association business. obviously this Board cannot likely ignore the decision of the Public Service Grievance Board which disposed, as indicated, of a similar issue raised by the same grievor before this Board. Parties to collective agreements are entitled to assun?e a certain consistency of interpretation among successive arbitration boards and, failing � any significant change in the governing collective agreements between i the parties, it would be irresponsible for this Board to reach a decision r i B. i:,consistent S•,ltn that of the Public Service Grievance Board lli 11he It ]_ ;�.5,i, {J: a. 1:, !:r'ai7i gin? ca. es are di stir;ui sbab le. First, it is argued that tate claim in the earlier case related 'to absence front duties to participate in local Union business while the claim in the instant case concerns the grievor's participation on provincial Union Co:n,�ittees. In support of that claim reference is made to the fact that,while Article 11.01 speaks of time off "to engage in Arbitration Board Hearings or Provincial Union Committee -Meetings", Article 11.03 speaks of "assisting employees and the Local in the administration of this Agreement and business directly pertinent t thereto". The applicable article in effect at the time of the earlier award spoke merely of "Association business". Article 11 of that Agree;rrns read as follows: "ASSOCIATION BUSINESS 11.01 That up to a maximum of five (5) person, per College be released from duty for sufficient time to engage in Association business as required under the Agreement, provided such release does not in the opinion of the President, interfere with the efficient operation of the College. 11.02 The release herein recommended to not more than five (5) persons per College at any one time who are engaged in Association business, whether it be negotiation meetings, mediation meetings or arbitra- tion hearings,•shaII be without detriment to sick leave or other fringe benefits, but they shall not be paid regular salary during such period." Insofar as assistance is to be found from comparing the language of the appropriate Article in each of the two collective agree+;gent it would appear that, with respect to the issue as to g• ii ;ie?lii li j o c she aord.i ` re eased f 3'om d.1 y"', i,ll'. 5 no assist zhe Anion. It is CleOr fr011 al: :xa€;lillati•�" Ar"-zlzs i:ni.'i. .i:�l �•.. :iT ... :�. %'icir w, r.)s to Cite q -,jest, -I its .0 .' 's= extent to w*hich-the teaching load or work assignment should be reduced in, order to perriit employees to engage in union activities. N.- clear that titre parties have so provided and have clone so ill respect of certain kinds of Union activities but not others. inc fair inference to be drawn from that language is, in our opinion, that it was not intended that such a reduction of teaching load accompany the rights and privileges confer•rru under Article 11.01. Had such been the intention it would have been easy for the parties to include such provision in Article 11.03. Therefore, fol' th purposes -of deten.lining ';:hether or not the instanz, cL;c is distinguishable from ate Ross Rachar (grievance "1'759/74), we. do not treat as significant the fact that the claim hoi•e is in respect of Provincial Union business rather than local businea:;. This brines us to the second and, from the paint of view of the Union, more significant difference between the two cases, that is, the fact that, while under the provisions of the Collective Agreement in force during the time of Re Ross Rachar Article 11.02 provided that employees. released from duty would not be paid a regular salary during any period of release, Article 11.72 of the current Agreement con teaipl ates that the College vti l l con ti nue to pay the regular salary of released employees but that the Union will reimburse the College for its loss. It will be recalled that the Union relies principally on the implications to be -drawn from 10. �• .^ - _ this �.:n •� tit t '[.rv,e�o :lis array Z, .,�:-. for pay::.-,-n`_an�� i is W.d .. _.:_•� _ � .;.r; col Iect;ve agreer,:ents, and t', Ie. i , ii cap. D:a t `rani, :•fhich serve as ..rne €u fl,:zt- 1;. not this Bound be guided iy the disposition of -,ne Public Service Grievance Board of the Ross Rachar or whether it take an independent view of rthat, in view of the different language of the current agreement it determines to be a different issue. N;e turn first to an examination of Article I1 and to an assessment of the significance, if any, that should be attached to the particular manner by which the College is reimbursed for its loss. We have referred earlier to the different types of leave for Union business conte -plated by Articles 11.01 and 11.03. le!e have also noted that, 'in respect of the type of leave for Union business contemplated by Article 11.03, the partic-s have provide -.1 a machinery for determining an appropriate reduction in the teach- ing or wore: assignment of a person authorised to be absent on Union � i business_ Hov,ever, Article 11.01 is silent as to such matters. However, notwithstanding that clear difference between Articles 11.01 and 11 .03, the parties have nevertheless negotiated identical arrangements according to which the affected employee is to be paid and according to which the College is to be reimbursed. In this regard it will be noted Article 11.02 (upon which the Union principally relies in this case) and Article II. -04(b) are virtually identical in tears. It is fair to conclude from this that, at least insofar as the question of a right to a reduced teaching load is concerned, f Our I;IllfiCali-Ce shOUId -M- �i;a3.F?C: tCi the i"A'W!!f- !;YS:c:it.Ii thm College is re; -b'11 -sed for io<t a?":'?CL';. o16^ 7t:: k;_ h?'.f n_ �•r._�'_, ..'.•::s ';)� s o�� l + C• for 'j,ilcai b 1� t� f and he ve rt., idc; C:ia .•L'�JL 4 :.� � � CCS % J L J .nVJJ fl - in each case the payment wrrangF.ments iii l be the 5 i:ne. flo+:ever, the. parties have also provided that only in respect of leave under the provisions of Article 11.03, will the affected employee be given a i reduced teaching load. Given the identity between Articles 11.02 I k and 11.04(b) one might have expected that, if it was the intent of -the 4 parties to treat both types of leave identically in terms of reduced j teaching load as well, they would have said so. The fact of the matter is that they did not do so and, for this Board to read into Article 11.01 an arrangement similar to that contemplated under Article 11.03 would be to effect an am..endment to the collective agreement. It s,:ould aypear therefore that, in teras of the isst:,-, ...r;,r;: us as to whether or not the grievor is entitled to a reduced teachin-7 load when a:rav on Union business, there is no particular signific-.:nce to be dra ai from the fact that the College receives so;.ie reiwbu'rse,f:ent from the Union in respect of that absence. It is argued, however, by the grievor that the provisions of the Letter of Intent referred to above supports the conclusion which he seeks to have the Board draw. We are unable to agree that the language of the Letter of Intent is sufficiently clear to warrant the interpretation of Article 11.01 which the grievor seeks the Board to make. The grievor advanced a lengthy argument, replete with extensive dictionary references, to support the proposition that monies paid to the College by the Union ; were impressed with a trust and intended to be used for the purposes of hiring a replacement for an employee away on Union business. V!e 12. rep)acea,=encs for employees abseiiI {:!1 Union bu.7,irl :Jre3-,e zlit. 0,: ;I'; ":�, indicates thatf'- �'.ito !3' ZiIC, le f -rave concluded above that no particular - significance is to be drawn from. the manner by which the College is reimbursed by the Union. This conclusion would opera .e to re -move any r^eirrai��in9 distinction ;:rich night be said to exist bett;een this case and the case earlier decided by the public Service Grievance Board (re Ross Rachar). 1-,o:•rever, even apart from that there is sor.ie evidence to indicate that, even over the period of time at 'issue in re Ross Rachar, there was a contemplated practise wherein the employee's salary t-,ould co,� ti nue to b�! paid by tho Col 1 ege but that , to a certain it Le Union its racr,_CC cT` �i":'_ tJ, .. it1': C:'it; i referred to concerns a letter dated August 31, 1972 to the Civil Service Association of Ontario from lir. Ha7eltofi, the Super intend=.rt, College Resources. That letter, directed to 4iiie attcntion of i'ir. ,•F. Riddell, reads as follows: It This will serve to confirm that in the administra- tion of section 11.02 of the meTiorandu.�i of understand- ing, the employee's regular salary shall continue to be paid directly to the employee by the College and the College will bill the Association for the amount involved for the time an employee is engaged in Association business as referred to in section 11.01 and section 11.02. On the understanding that there will be no abuse by an employee in the application of these Sections, it is the College's intention to bill the Association for absences of one half day or longer. Also, the Colleges do not intend to bill the Association for the absences up to September 1, 1972." This letter was submitted as an exhibit by the Union along with a copy of the appropriate provisions of the collective agreement in force at 13. the tiuii- of t ne hecirl!]'3 :efore ., PUIi-I IC Ser, icf: At the rtial•i: ri €•Gi•ilr, , �..ii�C .;1a: '1 ;�: .:1: '" �ti l't, I`•..i��s� .� ,' s (? r. '. .i ;� f'y r!r ::� ! r. .: 1: - r +. t}p: �: '",il'- 1' •.�t•i � • S lu�ly L+} C.t i a� Li._ i :�•rt'i_.,1.. .!i. .. •, _ ,. perhaps to i,npr4er to f i nd. our ccccl us ions erlL'i re v o:i i ha t doc.;' �lo;:ever, It is appT'oprlate CU 3t least ElptE that, 17 the tip.lii�Te.ii 35 to be [liven sme Credit, it reveals that to an extent the payment arrangements in effect over the period of time at issue in re Ross Rachar viere SUIDStantially similar to the payment arrangements current- ly in effect and which are now a part of the collective agreement. This circumstance offers yet another argumerl- in support of the conclusion that the case before this Board is legally indistin5uish- able from the case presented to the Public Service Grievance Boa—" in 1974. have indicated earlier that, in our vier, it ti•:oold , highly undesirable for this Board in these circumstances to reacir a concl usio•'i different f rDm that reached by the F' `;i it St:rvice Grievance Board. :de reiterate that view again and conclude that, for the reasons setout above, the grievance is dismissed. DATE© in London this-?, day of(9:by---�978. G J. Bra ndt', Chairman I concur/dtzgroit "VI.A. Correll" W.A. Correll, Company Nominee I concur/dissent ---- --- Chris Trower, Union Nominee Grievance A R. 4:: chak have read the proposed ,wa& in this .:cmc Q sad 1:,..'.+.' -disc-n_ ---*rum it-. In my ..opinion, the majority has asY.ed itseli the wrong question, namely is the instant case distinguishable fror0 Re Foss Rachar, Public Service Grievance. Board Gri.cyanc4'S 75!,-'71? having answered that question in the negative, the majority con-cluOe they are bound by that decision. Accoidingly, they fail to consider the question, which is, in my opinion, the real issvc before: us, namely, is the grievor entitled to a remedy, and if so what remedy, on the merits of the case as it was argued before. us? .Es^."..t me deal very briefly with the r'•.al is5ine Mot, . B, idly s t- :. d it involves the torw _e- . . grievor that when he is released from duty by the eolle9c•, ; or union business, in accordance with the t.wms Uf the C011-011%-.; agreement, the college should not be entitled to re --assign him: those same duties at some other time. If he is so assigned, the gKovor's claim is that he should be compensated. To so re --assign him and/or to fail to compensate him for the reassignment is a violation of the collective agreement. If so, he is entitled to some measure of Compensation. Because of the nature of the grievor's work it is extremely difficult to assess the precise effect in quaniatative terms of a reassignment of the duties from which he was released. For ex.,imple, if he was scheduled to teach for 5 hours on a given day, and he is released from that duty for that day, if those classes were simply cancelled for that day, then reassigned to a later day when the f ... /2 - 2 - ..: �`��L ii%�.: •:) ir�GI G.. � � ilrti LLj :., _::; ..� ,.. ..�._ .. r. -:f .i lrz.. tii .. .... .:f .. l' to the extent of Uhar, reassignment? i:tre college lege r1'."' r .:5, as l h'3:,..:i 3..2c.. , r ..�: : i �::. � r.. y. ..lis understand it;- that on the days far part_ of nays, if the ment is spread over several days) when he has no teaching assignmen lie has other duties such as class preparation, marking, available to students etc. which 'Souk otherlti i.sc be that day. Moreover, if those other duties are not perforro.o$ then, l they must be performed at some other time. Accordingly, even though it .is only the actual teaching ;Lours which can be accurately quantified, to the extent that such hours are reassigned they displace time equal to the reassignment vh.ich must be, rla�-I : - up b,'. - the grievor. in ml opinion, the grievor_ is right.. TO thy: axtC'lit tins' he is reassigned. duties which he would ather:.ise have pr•.rfL0-,M nC1 n:� a day when hr ms released from duty, his tot= -2 hours have ;.-o:; in?.:rea Accordingly, his grievance has merit. In my opinion, thcrefore, we should direct the college that it cannot increase the grievor's assignment in this fashion except to the extent that the collective agreement might otherwise permit such an increase. Secondly, we should award the grievor damages by way of compensation for this breach of the collective agreement. The grievor specified a :formula for arriving at the amount of such compensation. I would make no finding on that formula but would remit the matter back to the parties to agree .upon an amount. If they are unable to so agree this board should remain seized of the matter. ;3 3 .. Theo, Mattars ..ere , 'a ba l r? vs have chosen not to deal w `.•. the issue an any C,ro ker !4ngth, because the majority has _'Ict dealt WAh it at ail. it is sufficient ' of : -v to sQy, rherefore,; : - . the svinvance -ivs 1 . As tc the issue on which the majority has decidud this case, it is in my view an issue that was not before the board. in effect, the majority has round that res judicata lies against the grievor in this case. Nowhere in the majority award is the term res ju) dicata used and that is not surprising because .it was not put in issue before us by the parties. What gives rise to it, so it i.-ould seem, is the fact that the employer filed with us, in arguntent, a copy of a prior award between these parties, namely Re Ross Rach_r, sura. A c:}'."& n71 j , the majority has 5'. _zed oj:on this _..-.'rd cit?:r asked itself these questions (1) was Re Ross Rachar supra a dispute between the same parties? (2) N as the matter in dispu`.c i„ that case identical to the dispute in the instant case? (3) Was the grievance in that case .filed for the sate object as was the grievance in the instant case? Those three questions represent the three conditions that must be met before res judicata can be found to lie against a party who seeks, in effect, to relitigate the same issue. (see generally: Brown and Beatty, Canadian Labour Arbitration, Canada i i Law Books (1977) 5.2:3224, p. E6) . The majority has carefully reviewed such facts as were before us in considering its answers to those questions. In the end, however, it concludes that all three questions must be answered in the affirmative. Having so concluded, the award then turns. on the proposition, not that res judicata lies and that therefore the I ... 4 ff - cinn. ,,L be ^i:a-rd, bu ,, ,a aaraph 47o1-,:::'4 on page 13 , i.,hiz Boar([ -in these cir:cumstanoe` !: :.4r i';- i' i:..r::, '?' :a i.a;. :. _ ......,.... ... �.. 1`t.L'J ..1 C: �;�'.r!•j rc .._ ..�::.•;i.�':: � 'it'. _ ... . ' In th-a result, the majority declares to exPI.-'ess ar,%: viol•; on the merJ.ta of the grievance before us. In :,i} opinion, it may :ell have been open to the college in the instant case to have raised the question of roe -judicata as a preliminary matter. Had they done so, the three questiolis t -hick th majority have canvassed in such detail may well have become the onl issues before us. Accordingly, evidence and argument would have been addressed by the parties to those issues. In the .light of suc evidence and a awic,-nt, we would be in a position to wheth::1• ,.,_ not Yes iudicatil But the point of the matter is, the college 8.;(. ::nt: raise res judicata as an issue before this boa!:d- Tl : on its merits. In my view, the college filed, Rc Ross _i•.&, har supra as a prior decision which might persuade the board to rule on Lhe merits of this case as that board ruled on that case. For such a purpose, the college might have filed any number of awards, on any number of issues, arising between any number of parties had it foun any other awards which Night have a persuasive effect on our deliberations. It mr.y be that the Re*Ross Rachar supra award is of some persuasive value. I am notpersuaded by it. I think it reaches the wrong conclusion. But I cannot say what effect it may have hac ori my colleagues on this board. What is more to the point, howevex is the fact that rloone can tell from the majority award %rrhat Y .. 7 KOM it might hav; nsli ch them :.pinion on it In their award. On i'.he contrary, they hL1vo simply ass'.iMed It to he hindin; :1L:•:1:. 05 Und ha -C : •:...ei' re ti`: a ..., n-. opinion either on the correctness of !,; Ross i nci3a. �, :• �,� t",o�1 thcl Merits [3%Ahn .instant case. 'ihe;:iin lies the Error. In my opinion, once the parties put an issue before the board, like the grle3°:ol: Vi the instarit case, glen offer i�vidollce and argument on the merits of that issue, the board in bound Lo rule on that issue. To fail or to refuse to do so,is to fail to exercise the jurisdiction given to us by the parties. Such a failure or refusal, is a reviewable error and I wimh not to be a party to it. It is equally an error to rule upon an issue that was not put~ before us by the parties. That seems to rye to be '::hat the majority have done in founding. its decision Can thn appl:. --ia" vt I.'es judicata. As the authors of a well known text T'i'p;tt too mnt_e4. "It is well established that estoppel by res jyy cauk 3 must be pleaded." See 5ooinha and Lederman, W., -UC in Civil Cases, Butterwor h (1.G7,i' p. 373. Se.- aI, ; I Voo ht v Winch 118191 2 B 2 :11d, 662, 106 F.R. 507; Odgers / Principles of Pleading and Practice (17th ed) , p. 207. - l Res judicata was not pleaded in the .instant case and, in my opinion, the decision cannot be founded upon the application of that doctrine. Nor can the decision be founded upon the proposition that, ''it would be highly undesirable for this Board in these circumstances to reach a conclusion different from that reached by the Public Service Grievance Board," (see page 13 majority award) because that proposition is in substance, if not by name, res judicata as it might have been applied to the instant case if it had been pleaded. .. /6 - E - put before us. That is entirely in #hC' E1iY:. L' the i;1L'e Cho �: Li j. Cti: AL1 .. ��:.':� i�.'. :i s.'!i� _r ',hat :LSt'x: .. •. ...1... .._.. . _r:n : a' - . s y by the ...001. Yj jl S•:ould have heard the necessary evidence c nz! arguRe,:i. to the elements of res iudic.ata, and perhaps, as to tiro applicability of the doctrine to, a case of this kind. We would then b:.' in .. po';itio to make a ruling on that question. We are in no position tc d', so now because the issue was never raised.. Accordingly, I Ksh to mak it clear that S make no finding either as to the eleiz►•ants of rc:� judicata in the instant case or as to the applicability of the doctrine. In -my opinion we ware seized ;:ith tEt� fol: ...l t'• , issue. The: niajority has made no finding on the. kll?rltfi. �L,r dissent from their award for all the=o::cc;ui r.; reasons. All & which is respectfully submit! c6. Chris Trower, Union Noninee February 20, 1978