HomeMy WebLinkAboutThomas - 04-07-19IN THE MATTER OF AN ARBITRATION
B E T W E E N:
GEORGE BROWN COLLEGE
(The College)
- and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF THE GRIEVANCES OF PATRICIA THOMAS #93A807/80B
BOARD OF ARBITRATION:Kenneth P. Swan, Chairman
R.J. Gallivan, College Nominee
Sherril Murray, Union Nominee
APPEARANCES:
For the College:A.E. Burke, Counsel
Regina Park, Manager, Labour Relations
Allan Budzin, Chairman, Academic Skills
For the Union:Alick Ryder, Counsel
A W A R D
A hearing in this matter was held on September 21, 1993 and March 2, 1994. At the outset of the
hearings, the parties were agreed that the board of arbitration was properly appointed, and that we had
jurisdiction to hear and determine the two grievances referred to us for resolution. There was, however, a
distinct issue between the parties as to the scope of those grievances, and therefore as to the scope of our
remedial jurisdiction. At the close of the hearing on March 2, 1994, the parties agreed to complete those
submissions by way of written argument. That argument was duly submitted in accordance with the
schedule agreed between the parties.
The grievances before us were both filed by Ms. Patricia Thomas, who had been at the material time in
December 1992 a partial-load employee in the classification of Professor for some eight years. Grievance
93A807 was filed on December 16, 1992, and is in the following terms: Statement of Grievance Article 26.
Settlement Desired Compensation for lack of notice.
Grievance 93A808 was filed on December 22, 1992, and is in the following terms:
Statement of Grievance Violation of Article 27.06. Settlement Desired The position presently
occupied by Roberta Morris be given to P. Thomas. Both of these grievances arise from a letter
dated December 4, 1992 to Ms. Thomas from Allan Budzin, Chair of the Academic Skills
Development Department, which is in the following terms: I want to confirm that your partial load
contract as a Professor in the Academic Skills Development Department expires on December 24,
1992. Because of class consolidations and budget constraints, your contract cannot be extended.
It is common ground between the parties that three partial-load employees, including the grievor,
received similar letters at this time, and that the primary reason for the reduction in the academic staff was the
withdrawal of a very substantial amount of federal funding of courses taught in the Department. Because of a
commitment by the College to maintain full-time academic positions as a first priority, the impact of the
cutbacks fell on partial-load employees.
The dispute as to the scope of the grievances arises in the following way. Both parties are agreed that the
question of the sufficiency of the notice of release, as set out in the letter of December 4, 1992, is properly
placed before us by virtue of grievance 93A807. The reference to Article 26 in that grievance is more
specifica1ly a reference to clause 26.03, which is as follows: 26.03 It is agreed that Article 27, Job Security,
has no application to partial-load teachers except as referred to in 27.04 A, 27.06 (iv) (v) (Vi), 27.08 B and
27.12. Such partial-load teachers may be released upon 30 days' written notice and shall resign by giving 30
days' written notice.
The question before us is the scope of grievance 93A808, which on its face alleges a violation of Article
27.06. This is a very extensive provision relating to the lay-off or involuntary transfer of "full-time employees
who have completed the probationary period". Pursuant to clause 26.03, quoted above, the only parts of
clause 27.06 which apply to partial-load teachers are paragraphs (iv), (v), and (vi). Those provisions all refer
to partial-load employees only for the purposes of explaining how they may be displaced by full-time
employees; they give no rights whatsoever to partial-load employees to displace other employees. Indeed, the
scheme of the collective agreement is that partial-load employees are given service credits for the purpose of
advancing on the salary grid, and for the purpose of resisting a displacement by a full-time employee under
Article 27, but for no other purposes.
At the hearing, and again in its written submissions, the Union clearly acknowledged that Article 27
gives no seniority or displacement rights to partial-load employees which the grievor could exercise in the
circumstances of this case to take "the position presently occupied by Roberta Morris" as claimed in grievance
93A808.
The Union argues, however, that the essence of grievance 93A808 is dismissal without just cause, and
that the treatment of the grievor was unfair because it was influenced or prejudiced by an event in the summer
of 1992 when the grievor had previously been given a notice of release by Mr. Budzin and had successfully
contested it, apparently by going over Mr. Budzin's head to the senior management of the College. In effect,
therefore, the claim is that the grievance was always about an allegation of bad faith in Mr. Budzin's decision
to release the grievor, rather than to take other steps which, while the Union concedes the collective agreement
did not require the College to take them, were open to Mr. Budzin as a matter of discretion in deciding whom
to release and whom to keep in December 1992.
It appears, and the Union expressly argues, that what is complained of here is a breach of clause 3.02 of
the collective agreement, which is as follows:
3.02 The Colleges and the Union agree that there will be no intimidation, discrimination,
interference, restraint or coercion exercised or practiced by either of them or their
representatives or members because of an employee's membership or non-membership in the
Union or because of an employee's activity or lack of activity in the Union or because of an
employee's filing or not filing a grievance including participation in the workload
complaint system.
That allegation, however, is complicated by the fact that there is a Union grievance, filed on January 26,
1993, expressly alleging a breach of clause 3.02 which, the parties appear to agree, is directly related to the
case of Ms. Thomas. The Union asserts, however, that the January 26, 1993 grievance is in fact a claim of
discrimination by reason of race pursuant to Article 4 of the collective agreement. We are informed that the
January 26 grievance is before another board of arbitration, and that the scope of that grievance is also a matter
of dispute between the parties. There is relatively little difference between the parties as to the arbitral
principles which we should apply to the present case. They are perhaps best set out in Re Electrohome Ltd.
and International Brotherhood of Electrical Workers. Local 2345 (1984), 16 L.A.C. (3d) 78 (Rayner), at pp.
81-82:
Perhaps the starting point for an analysis of the issue raised before this board is to be found
in a paper delivered by Professor Bora Laskin (as he then was) at a conference of arbitrators.
This paper was referred to in detail in Re U.S.W.. Local 3998 and Dunham-Bush Canada) Ltd.
(1964), 15 L.A.C. 270 (Lang) at pp. 273-4. Professor Laskin stated [p. 274]:
"The grievance documents are, so to speak, the 'pleadings' of the court lawsuit, but
hereas rules of procedure govern the particularity of the statement of cause of action
(as well as the defence) in a lawsuit, and provide an orderly scheme for amendments,
the labour arbitrator has no such formal code of control, save as one may be found in
the particular collective agreement. In my submission, it is better that he be left fairly
free to help the parties, if necessary, to pinpoint the issues in a grievance claim. The
expedition and informality sought through arbitration would be lost if the written
grievance form became the sovereign talisman, and if formal motions to amend had to
be made. After all, we are not concerned in labour arbitration with meticulous
definition of issues for a jury, nor are we concerned with tactical manoeuvres
designed to protract proceedings or to compound costs. Of course, neither party to a
labour arbitration should be put at a disadvantage by reason of the opponent's
amendment of claim or answer; but this can usually be resolved on the spot, or an
adjournment could be granted to permit preparation to meet what turns out to be a new
or modified form of the issue between the union and the employer". This theme of
flexibility was confirmed in Re Blouin
Drywall Contractors Ltd. and United Brotherhood of Carpenters & Joiners
of America. Local 2486 (1975), 57 D.L.R. (3d) 199, 8 O.R. (2d) 103 [leave
to appeal to S.C.C. refused November 17, 1975]. At p. 204 Mr. Justice
Brooke of the Court of Appeal stated:
No doubt it is the practice that grievances be submitted in writing and that the dispute
be clearly stated, but these cases should not be won or lost on the technicality of form,
rather on the merits and as provided in the contract and so the dispute may be finally
and fairly resolved with simplicity and dispatch.
He further stated:
Certainly, the board is bound by the grievance before it but the grievance should be
liberally construed so that the real complaint is dealt with and the appropriate remedy
provided to give effect to the agreement provisions. . .
Thus, one sees that there are two basic guidelines for a board of arbitration in determining
whether the matter raised by one party at the hearing is part of the grievance. First, the board
is bound by the grievance before it but within the confines of that boundary, the board is to
interpret the grievance liberally so as to come to grips with the real dispute between the
parties. This approach was adopted in Re HarrY Woods Transport Ltd. and Teamsters Union
(1977), 15 L.A.C. (2d) 140 (Weatherill). In that case the board permitted an amendment to
the grievance but stated at p. 143:
Of course, it would not be open to a party, under the guise of an "amendment" simply
to substitute one grievance for another.
Although the value in maintaining a flexible approach to grievances filed before a board
of arbitration is readily apparent in so far as the parties are not operating under the same rules
of practice that would guide counsel in normal litigation, there is another value that must be
kept in mind. The whole process of grievance arbitration, and grievance procedure, is
designed to permit the parties at the earlier stages to resolve the dispute between themselves.
Hence, collective agreements invariably contain grievance procedure provisions so that
grievances are funnelled to an arbitration board only after the parties have had a chance to
resolve the matter. It is our view that the comments of Professor Laskin and the decision in
the Re:
Blouin Drywall case attempt to accommodate both values. If the issue raised
at the arbitration hearing is in fact part of the original grievance, a board of
arbitration should not deny itself jurisdiction based on a technical objection as
to the scope of the original grievance. To do so would be to deny the value of
flexibility and would be to compel the parties to draft their grievances with a
nicety of pleadings. On the other hand, if the issue raised by one of the
parties is not inherent in the original grievance, for the board to permit the
party to raise that issue as part of the original grievance would be to deny the
parties the benefit of the grievance procedure in an attempt to resolve the
issue between themselves. In fact, it would be to permit one party to
substitute a new grievance for the original grievance.
These principles have been followed by various boards of arbitration under the present collective
agreement, as may be best exemplified by a recent award, Re Algonquin Colleqe and Ontario Public Service
Employees Union (Danielson), unreported, June 18, 1993 (Bendel), which also refers to a recent award
between the present parties:
In addition to the cases cited by Mr. Lynk, we also wish to refer to the recent unreported
award of a board chaired by arbitrator Brent in Re Georqe Brown College and Ontario Public
Service Employees Union (dated November 10, 1992), which bears some resemblance to the
present case. The grievor in that case had been informed that she was to be laid off, and the
grievance alleged that this decision was "an unjust application of Management Rights under
Article 3.1 and any other applicable article of the collective agreement". At the hearing, union
counsel asserted that "there was a racial element to the decision and that the grievor was being
punished for filing other grievances about work in her department" (page 3). The College
"replied that there was no hint in the grievance as it was filed that the basis on which the
grievor says the action was unjust was improper racial or reprisal motives" (page 4). At pages
6 and 7, the board concluded that it would allow the union to put forward the allegations of
racial discrimination and reprisal:
Those allegations are not apparent from the face of the grievance. However, we
were referred to nothing in the collective agreement which limits the parties to that
which is stated on the face of the grievance. The College did not argue that the
Union was precluded from raising the issues because of any failure to state them
explicitly on the face of the grievance. The College did not assert that it was taken
by surprise by the allegations. Had it done so, then clearly we would have had to
consider whether we would allow the Union to make such new allegations at the
hearing. We must therefore assume that the College was not taken by surprise and
that the parties had some prior dealings with each other during the grievance
procedure or earlier in which the Union made known to the College the substance of
its claim.
Based on that assumption, we are faced with an entirely different situation than would
have been the case had those allegations not been made. Although we are very
concerned about the grievance form's failure to set out clearly the matter in issue, and
would have considered different alternatives had the College argued that it was taken
by surprise or pointed out some provision of the agreement which prohibited the
Union from raising the matter, we believe that in light of Article 2.3 we have no
choice but to hear this case on the merits. . .
The approach taken by the board of arbitration in Re George Brown College in the passage
we have just cited is not significantly different from ours. The assumption on which that
board acted was that the allegations in dispute had been the subject of "some prior dealings
[between the parties] during the grievance procedure or earlier". As we have indicated above,
we would likely have come to a different conclusion if the evidence had established that the
allegation of a violation of Article 27.01 had been communicated to the College during the
processing of this grievance.
It will be obvious that grievance 93A808, on its face, asserts a violation of the seniority and displacement
provisions of the collective agreement, and claims as relief the right to displace another employee. On its face,
there is no room for any assertion that the grievance also raises, by necessary inference or otherwise, an
assertion that the decision to release the grievor and retain another employee was motivated by bad faith or a
breach of clause 3.02. Bad faith and discrimination are very serioius accusations, and the College and its
officers against whom such allegations are to be levelled have a right to be put on notice in a timely way that
their bona fides is to be put in question.
Under this collective agreement, mandatory time limits are established which a board of arbitration has
no jurisdiction to waive, and the obvious conclusion is that the parties intended that grievances filed on time
should not subsequently be replaced by grievances, which would otherwise be untimely, in order to
circumvent those time limits. Moreover, there are certain procedural requirements set out in the grievance
procedure which also give some clue as to the parties' intention. In clause 32.03, the following appears:
It is the intention of the parties that reasons supporting the grievance and for its referral to a
succeeding Step be set out in the grievance and on the document referring to the next Step.
An employee shall present a signed grievance in writing to the employee's immediate
supervisor setting forth the nature of the grievance, the surrounding circumstances and the
remedy sought.
These specifications in the grievance procedure clearly indicate the intention of the parties that there should be
a degree of adherence to the principles of precision and completeness in the grievance procedure. The Union
argues, however, that the matter was discussed in the grievance procedure between the parties in such a way as
to indicate that the parties had a shared intention of the meaning of the grievance and of its scope, and that they
were mutually of the view that the grievances filed included an allegation of a breach of Article 3.02. To this
end, the Union called Mr. Tom Tomassi, the Union Steward who was directly involved in the filing of the
grievance and in processing it through the grievance procedure.
We have reviewed Mr. Tomassi's evidence with care, and we are simply not able to conclude that there is
anything in his evidence which can support the notion that the parties mutually treated the grievance as one
including the allegation which the Union now proposes to advance. We observe that Mr. Tomassi's evidence
was contested by the College, which called two witnesses to contradict him in a number of different respects.
For our purposes, however, taking Mr. Tomassi's evidence at face value, it simply does not rise to the level of
proof required to establish a mutual assent to the proposition that the grievance included allegations which do
not appear either expressly or impliedly on its face.
Mr. Tomassi testified that he used the word "unfair" in several different contexts in the course of his
statements in the grievance procedure, specifically at the Step 1 procedure on January 5, 1993. He says that
he observed that it was unfair to release longer service partial-load employees while shorter service partial-
load employees remained at work, that it was unfair that the effect of these releases was substantially to reduce
the impact of employment equity initiatives in the Department in relation to visible minority members of the
Academic Staff, and that it would be unfair to prejudice the grievor's case because she is the type of person
who speaks her mind. There is nothing in Mr. Tomassi's evidence to indicate that he expressly linked the
"speaking her mind" assertion to her successful challenge of her previous notice of release the previous
summer, and it is obvious that these statements were all made in the context of a wide-ranging discussion
about the way in which notice was given, the rights of the partial-load employees under the collective
agreement, and the grievor's actual competence, skill and experience to fill the position referred to in
grievance 93A808.
There is nothing in the formal replies of the College at either the Step 1 or Step 2 level to indicate that
anything Mr. Tomassi said had the effect of conveying to the College that the grievance was in fact about an
allegation which does not appear on its face. Indeed, there is nothing in Mr. Tomassi's evidence even to
indicate that the references to the events of the previous summer which he says were made at the Step 1
meeting were even repeated at the Step 2 meeting.
In the result, while we conclude that a grievance may very well include, by necessary implication,
allegations or provisions of the collective agreement not expressly referred to on its face, and while we agree
that the scope of a grievance may be expanded either by clear and open notice by the Union in the course
of the grievance procedure that it intends to do so, or by a mutual express or tacit understanding between the
parties evolved during the course of the grievance procedure to treat the grievance as broader than it might
appear, there is nothing in the present case to indicate that anything of the kind occurred.
Therefore, since the Union has conceded that partial-load employees have no rights under Article 27, the
only matter which is available for arbitration before us is the sufficiency of the notice period pursuant to clause
26.03, the matter raised by grievance 93A807. If the parties are not able to resolve this matter directly
between them, we shall schedule a further hearing to hear and determine that issue. Otherwise, the matters
raised by the Union in relation to a breach of clause 3.02 and bad faith are not arbitrable before us.
DATED AT TORONTO this l9th day of July 1994.
Kenneth P. Swan, Chairman
I concur"R. J. Gallivan"
R.J. Gallivan, College Nominee
I dissent"Sherril Murray"
Sherril Murray, Union Nominee