HomeMy WebLinkAboutUnion 05-01-31
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IN THE MA ITER OF AN ARBITRATION
BETWEEN
ONT ARlO PUBLIC SERVICE EMPLOYEES UNION
AND
THE OTI A W A HOSPIT AL
UNION GRIEVANCE CONCERNING RETROACTIVE PAY
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Arbitrator: Richard Brown
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For the Union: Eric O'Brien
For the Employer: J.D. Sharp
Hearing: Ottawa. Ontario
Janllarv 26, 2005
This union grievance is abOllt the payment of retroactive wage increases
awarded by a board of arbitration and later incorporated in a collective
agreement. The date for payment of-'retroactivi~'- was specified in the
award and also incorporated in the collective agreement. The amollnts owing
to employees by way of retroactive increases were not paid by the date
specified. The union now claims interest for the interval between the date
th<7se payments shollid have been made and the date they eventually were
made.
The employer made rvv"O preliminary objections. The first is that I lack
jurisdiction over this matter becallse the interest board remained seized of it.
The second objection is that I have no jllrisdiction to hear the grievance
because it was filed before the collective agreement came into effect. In
addition to contesting these argllments. the union contends the employer
waived any right to make jllrisdictional objections by not asserting them
until a few days before the hearing. This award deals exclusively with the
jurisdictional isslle.
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The interest "board. chaired by Russel Goodfellow. was appointed to fix the
tenns of a collective agreement running from Janllary 5. 2000 to March 31.
2002. In a decision dated Jllne 3. 2003. the Goodfellow board awarded the
follo'wing provision relating to retroactive wage increases:
All employees in the bargaining llnÌt on Janllary 5. 2000 shall be
entitled to retroactive wage payments toJanllary 5. 2000. The
Hospital shall make sllch payments within fi ve (5) pay periods of the
date of this award. ...
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This provision was sllbseqllently incorporated as article 29.03 of the
collective agreement.
The interest award contains the following passage about the
jurisdiction retained by the board:
[W]e will remain seized to correct any errors in this award. to deal
with any other isslles of implementation and. at the parties' reqllest. in
respect of the specific issues identified in the body of this award.
(page 4)
The reference to -specific isslles- appears to relate to three matters in dispute
at the time of the interest arbitration bllt never sllbmitted to the board. They
were not part of the initial sllbmission to arbitration becallse the parties
expected they collid resolve them on their own. The board reserved
jurisdiction over these isslles, in case they were not settled. bllt in the end all
were resolved through negotiation.
On Allgust 13.2003. the union grieved the employer's delay in
making retroactive payments. The grievance states:
The hospital has failed to meet the time limits for retroactive payment
and wage grid implementation set Ollt in the interest arbitration award
by Mr. Goodfellow dated June 3. 2003.
In the step-three reply. written on October 15. 2003. Mark Rawas on behalf
of the hospital wrote:
The union is requesting that the Hospital implement the A ward
immediately and that the Hospital pay interest retroactively to the
implementation date set out in the award.
The Hospital has acqllired additional resources to expedite the
implementation process and will make the retroactive payment as
soon as possible. The collective agreement does not indicate a penal~"
for any delay in the Hospital making the retroactive payment. The
Union's request for interest is therefore denied.
...
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The referral to arbitration is dated October 2 I. 2003. There followed
an exchange of letters leading to the selection of a rights arbitrator and the
employer agreed to my appointment on December 8. By letter dated March
2. 2004. I confirmed the hearin2: was schedllled for Janl..la1V" 26 and Februarv
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2. 2005.
While the grievance was proceeding to hearing before me. the
Goodfellow board held another day of hearing on December 9.2003 and
issued a supplementary award dated Janllary 29. 2004. In the course of that
proceeding. neither p~" asked the interest board to deal with the delay in
making retroactive payments. Five issues were addressed in the
supplementary award. With respect to one. the Goodfellow board amended
its initial decision becallse it was based upon a misllnderstanding. The board
determined it had no jllrisdiction over the remaining four isslles. saying three
of them were matters for rights arbitration. For example. dealing with the
dental plan. the Arbitrator Goodfellow wrote:
"The question of whether the plan adopted by the Hospital confonns to
the terms of Ollr award and the collective agreement can be dealt with
in rights arbitration. (page 8)
The supplementary award begins with the board noting a collective
agreement had not yet been concluded and ends with the following passage:
As we llnderstand it. this award disposes of all matters remaining in
displlte bervv"een the parties concerning the terms of the collective
agreement. As such. we hereby direct the parties to immediately
prepare and execllte a collective agreement giving effect to the terms
of Ollr June 3. 2003 award and this one.
The collective agreement was signed on September 24. 2004. some
eight months after the supplementary award and some fifteen months after
the first one.
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On Janllary 21. 2005. five days prior to the commencement of the
hearing before me. the union was notified of the employer's preliminary
objections.
II
Does the displlte at hand fall within the jurisdiction retained by the
Goodfellow board? Employer counsel relies upon a similarity in wording
between that board's reservation of jurisdiction and the claim advanced in
the 9JÍevance. The interest board remained seized of isslles relatin2: to
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.'implementation:' The grievance complains of the employer failing to meet
the time limits for -implementation- set out in the award. Based llpon this
similari~.. counsel argues the Goodfellow board has exclusive allthori~.
over the sllbject matter of the grievance.
Counsel for the employer cited tWo cases where a rights board ruled it
had jllrisdiction to resolve an isslle arising in the implementation of its initial
award: Victoria Hospital Corp. and London and District Service Workers.
Cnion (1985).22 LA.C. (3d) 10 (M. Picher). and Eddy Specialty Papers
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and CE.P. (2000).88 LA.C. (4 ) 306 (Starkman). In each of these cases.
the board reinstated an employee on certain terms and a dispute
subsequently arose as to whether one of those terms had been breached.
Both arbitrators took j llrisdiction over the sllbsequent displlte. In Victoria
Hospital. Arbitrator PicheI' wrote:
It is well established that a board of arbitration may retain jurisdiction
to deal with sllch matters as may arise from its decision in a displlte
between the parties relating to any aspect of the isslles before the
board.
We have... expressly retained jllrisdiction respecting any displlte in
the implementation of the award. With the greatest respect. we cannot
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agree with counsel for the union that the retaining of jurisdiction
extends onlv to the reinstatement of the 9JÍevor followin2: our award.
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As is plain from the face of the decision. the grievor's reinstatement
into her employment was conditional. She returned to work with a
form of probationary status fashioned by this board through
its remedial allthori~". That status wollid terminate only after the
expiry of a period of rvv"O years from the grievor's reinstatement. and
then only if the conditions respecting her attendance dllring that time
were satisfied.
The conditions imposed upon the grievor's continlled employment are
not to be found in the collective agreement. It is. moreover. beyond
dispute that this board is withOllt jurisdiction to amend the provisions
of the parties' collective agreement. Bearing these considerations in
mind. it is less than clear upon what basis another board of arbitration
collid pllrportto deal with the grievor's termination. given that the
merits of that grievance wollid tUrn entirely on a determination of
whether she has met the conditions established in Ollr order. Sllch a
determination could involve. among other things. the interpretation of
what is meant by the average attendance in the grievor's department
and how the four-month period contemplated in our decision is to be
calculated. These are precisely the matters over which we have
retained jurisdiction. in contemplation of the possibility of some
dispute betWeen the parties respecting the precise meaning and.
llltimately. the completion or failure of the conditions established in
our initial award. Our decision is not finalized llntil sllch time as the
conditions which we have established are either completed or vitiated.
( pages 12 and I 3 )
Arglling by analogv..". employer counsel submits an interest board has
jurisdiction over matters arising in the implementation of its award. just as a
rights board has allthori~" over displltes relating to the implementation of an
award made by it.
Counsel for the union argues the word --implementation-. when used
by an interest board to retain jllrisdiction. takes its meaning from the purpose
of this interest arbitration-i.e. establishing the terms of a collective
agreement. In other words. implementation in this context means converting
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an award into a collective a.£Teement. It does not mean enforcin2: risrhts
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contained in sllch an agreement. Enforcement is said to be the role of rights
arbitration.
In Sllpport ofrhis argllment. counsel cites the following sections of the
Hospital Labour Disputes Arbitration Act (HLDAAJ:
9{ I ) The board of arbitration shall examine into and decide on matters
that are in displlte and any other matters that appear to the board
necessary to be decided in order to conclude a collective agreement
between the parties. . .
(2) The board of arbitration shall remain seized of and may deal with
all matters in displlte betWeen the parties until a collective agreement
is in effect berw-"een the parties. (emphasis added)
Noting the sllpplementary award ended by directing the parties to
immediately execllte a collective agreement. union counsel arglles this
direction indicates the Goodfellow board had done all that it collid to brin2: a
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collective agreement into effect and had exhallsted its mandate.
Union collnsel also notes the Goodfellow board. in its second award.
ruled it had no jurisdiction over a displlte about whether the dental plan in
effect complied with the terms of the initial award. An analogous ruling was
made in Canada Post CO/po ration" and Canadian Cnion o.(Postal r-Vorkers
( 1990). 10 LA.C. (4Ih) 244 (Bllrkett) where a rights arbitrator rejected the
suggestion that a displlte over the interpretation of a term awarded by an
interest arbitrator shollld be remitted to him.
Comments made in St. Raphael"s .Vursing Homes Ltd and London and
District Service Workers Cnion (1992).25 LA.C. (4Ih) 148 (Gray,. a case
cited by the union in response to the employer's second preliminary
objection. might be understood to suggest a different view of the role of an
interest board. In that case. the union referred to rights arbitration a
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grievance complaining abollt the employer's failllre to pay retroactive wage
increases awarded by an interest arbitrator in the following terms:
Wages rates shall be retroactive to the dates shown under Schedllie
"A" - Wages and shall be based on all hollrs paid for all employees
on the payroll on November 18. 1989 and sllbseqllently. (page 150)
This provision reqllired the employer io make retroactive payments bllt did
not fix a time for making them. When the rights hearing took place before
Arbitrator Gray. the parties had not yet signed a collective agreement.
Declining jurisdiction because there was not a signed agreement. he wrote:
Any jllrisdiction the parties' interest arbitration board has to elaborate
on the matter of retroactive wages will come to an end when a
collective agreement is brought into effect. either by the parties or by
the board. It will have no jurisdiction thereafter to entertain disputes
as to the interpretation. application. administration or alleged violation
of the retroactive wage provision. or any other provision. of that
collective agreement. Such displltes will then properly be the subject
of rights arbitration... (pàges 154 and 155)
Arbitrator Gray may have intended to say only that the interest board
retained jurisdiction to complete its award by fixing a time for payment. In
doin2: so. the interest board would not have 2:one bevond establishing terms
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and conditions of employment. If intended to suggest an interest board collid
determine whether a term awarded by it had been breached. or could remedy
such a violation. the arbitrator's comments wollld be at odds with the view
of interest arbitration applied by both Arbitrator Bllrkett in Canada Post and
the Goodfellow board in its sllpplementary ruling on the dental plan.
In mv view. the Burkett and Goodfellow understanding of interest
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arbitration is correct. The role of an interest board is to fix the terms of a
collective agreement. Its role is not to determine whether one of those terms
has been breached or to fashion a remedy for sllch a violation. Those matters
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fall with the purview of rights arbitration. As an interest board' s original
mandate is limited to establishing the terms of an agreement. any retention
of jurisdiction by such a board is subject to the same limitation. Reading the
reservation of jurisdiction in the first award of the Goodfellow board with
these observations in mind.. I conclllde the board remained seized only of
displltes abollt the contents of the collective agreement.
.The current displlte is not abollt whether to include a provision in the
agreement. The interest board fixed the time for paying amounts owing by
way of retroactive wage increases and that timeline was later incorporated in
the collective agreement. Payments were not made by the date specified. The
only displlte is about whether interest should be awarded as a remedy for late
payment. In other words. the issue concerns the appropriate remedy for
failing to comply with a term included in a collective agreement by virtue of
an award. This is not a matter within the jurisdiction of an interest board.
The tWo cases cited by employer counsel do not persuade me
otherwise. They stand for the proposition that a rights board may complete
its specialized task. i.e. enforcing a collective agreement. by resolving a
displlte arising out of the board's initial award. \iothing in these decisions
suggest an interest board may trespass into the enforcement domain of rights
arbitration.
III
The employer contends I am withOllt jllrisdiction to hear this grievance
because it was filed before the collective agreement came into effect. The
grievance is dated August 13.2003. The first Goodfellow award was issued
on June 3. 2003. but the supplementary award notes a collective agreement
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had not been concluded as of December 9. 2003. and the formal agreement
was not signed until September 24. 2004.
Collnsel for the employer relies upon a decision of the Ontario Labollr
Relations Board (OLRB). dated Jllne 29. 2004. dealing with a certification
application by a rival union to represent employees in the instant bargaining
unit. For the pllrpose of determining the timeliness of that application. the
OLRB ruled the collective agreement came into effect upon the issuance of
the second Goodfellow award. not the first.
The OLRB concillded the initial award did not give rise to a collective
agreement. even though the parties behaved as if it did. As to their
behaviour. the Vice-Chair McLean wrote:
Following the release of the Goodfellow Board's [first) award. the
parties acted as if they had a collective agreement. ... In this regard.
the parties. among other things. announced to employees that they had
a new collective agreement. applied the Goodfellow Board's award.
and the union filed 9JÍevances under the new terms withOllt anv
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objection by the employer. (page 4)
Rlliing the collective agreement came into effect with the issuance of the
second award. he continlled: I
I have come to that conclusion because of the importance of clarity
and certainty to employees and to third parties. It is clear from the
June 3. 2003 award that there are outstanding isslles which need to be
resolved before there can be a collective agreement. ... The fact that
, the parties asked the Goodfellow Board not to determine these issues
does not matter. The Goodfellow Board remained seized of sllbstantial
isslles which were more than just clari fication of the already
established terms. '"
I am not convinced otherwise by the fact that the parties have
implemented the June Goodfellow Board award. The parties may do
anything they want bervveen themselves. bur that does not change the
legal context. (page II: emphasis added)
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In the first italicized passage. the OLRB based its decision upon the
importance of employees knowing for certain the time frame when they are
pennitted to exercise their statutory right to select a new bargaining agent.
The second italicized passage contains the board's conclusion that the
conduct of the employer and incllmbent union shollid not be allowed to
interfere with the exercise of that right.
Noting the issue before me is the timeliness of a policy grievance. not
the timeliness of a certification application. union counselllrged me not to
follow the lead of the OLRB. According to this line of argllment. the
conduct of an employer and incumbent union may be relevant to the
determination of the timeliness of a grievance. becallse there is no potential
for impeding the exercise of third-party rights conferred by statute.
The timeliness of a grievance. filed before a collecti'v'e agreement had
been conclllded. was considered in St. Raphael's ;Vursing Homes Ltd and
London and District Service rVorkers Cnion. supra. That case is analogous
to the one at hand in two respects: the llnion complained abollt the
employer' s delay in paying retroactive wage increases awarded by an
interest arbitrator. and the grievance was filed before a collective agreement i
was reached. Because a formal agreement had not been signed by the parties
at the time of the hearing. Arbitrator Gray conclllded there was no collective
agreement in effect. Ruling he had no jurisdiction. he wrote:
An arbitrator appointed under s. +6 of the LRA has no power to
enforce an interest arbitration award made pllrsuant to the HLDAA. He
or she can enforce a collective agreement which is the consequence of
such an award...
Accordin2:lv. if a collective ôJITeement containin2: the
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retroactive wage provision qlloted earlier had been in effect at the
relevant time. it is clear that I wollid have had jurisdiction to
determine the amollnts of retroactive wages owed. if any. to each
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present and former employee in the bargaining llnits and. further. to
order that the employer pay them those amounts.
My initial commllnication with the parties following the hearing
suggested that a collective agreement wollid have to have come into
effect by the time I was appointed to arbitrate the llnion's grievance in
order for me to have had jurisdiction to deal with it. On reflection. it
may be that it would have to have been in effect at the time the
grievance was filed. It may also be that it would have had retroactive
effect as of the necessary date for this purpose if it had been brought
into existence at any time before the hearing came to an end: see Re
Canteen of Canada Ltd.. supra. n1Ose issues need not be addressed in
this case. since no collective agreement had come into existence by
the rime I made my decision in this matter. (page 155: emphasis
added)
In short. Arbitrator Gray declined to entertain the grievance becallse a
collective a2Teement did not exist when the 9JÍevance came on for hearin2:.
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In the italicized passage. he expressly declined to say anything about
whether a different outcome would have prevailed if such an agreement had
been reached before the hearing. althollgh he did cite a case where that had
occllrred: Canteen of Canada and Retail. f-Vho/esale and Department Store
Cnion (1984).15 LA.C. (3d) 305 (Mitchnick).
In Canteen o..fCanada. the dismissal of the grievor and the filing of
his mevance both occllrred dllrin2: ne2:otiations. after one collective
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agreement had ceased to operate and before a new one had been concillded.
The employer contended the arbitrator was withOllt jurisdiction to hear the
grievance because a renewal agreement had not yet been signed. According
to the union. the conduct of the parties demonstrated a mutual intention to
treat certain documents as constituting a collective agreement. Arbitrator
Mitchnick held a new collective agreement was reached when the union
accepted a draft document prepared by the employer. This occllrred after the
grievance had been filed but before the hearin2:. The arbitrator also
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determined that the relevant provisions of the new contract were retroactive
to the expiry of the old one. Based llpon these rulings. he tookjllrisdiction
over the grievor's dismissal. even though both the discharge and the
grievance predated the creation of the collective agreement. The reported
decision contains extensive reasoning to support the arbitrator's rulings
about the making of a collective agreement and its retroactive effect. but no
comments as to why these rulings were sllfficient to establish jllrisdiction.
something both parties and the arbitrator appear to have taken for granted.
Arbitrator Mitchnick. in my view. did the right thing by entertaining a
2:TÍevance filed before a collective éU!reement had been reached bllt within
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the timeframe when that aQI"eement had retroactive effect. In the world of
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collective bargaining. it is not uncommon for one agreement to expire before
the following one is concluded. When this happens. both negotiators and
interest arbitrators typically make some or all of the new agreement
retroactively effective to the expiry of the old one. I f arbitrators declined
jurisdiction over events occllrring between contracts. there wollld be no
remedy for violations during this period. The reslllting remedial vacuum
would rob the concept of retroactivi~' of any legal force.
How do the cases reviewed above apply to the one at hand? Here. as
in Canteen a/Canada. a collective agreement had been reached before the
grievance was heard. In this sense. these two cases are si~ificantlv different
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than Sr. Raphael's where the absence of a collective agreement at the time of
the hearin2: led Arbitrator Grav to dismiss the 2:TÍevance. Followin2: the lead
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of Arbitrator Mitchnick in Canteen a/Canada. I take jurisdiction over the
grievance before me. because a collective agreement existed when the
hearing began and the events giving rise to the grievance occllrred after the
retroactive date of the contractual provision upon which the union relies.
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The logic of the Canteen afCanada approach renders the OLRB's
decision irrelevant to the jurisdictional qllestion. Even if the first Goodfellow
award did not bring a collective agreement into effect for present purposes.
sllch an af!.Teement was concluded no later than the si2:I1in2: of the fonnal
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agreement which occllrred long before the hearing.
IV
For the reasons set Ollt above. the employer's preliminar::'objections are
dismissed. Having rejected these objections on their merits. I need not
decide whether the employer waived the right to make them.
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Richard M. Brown
Otta w a. Ontario
January 31.2005
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