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HomeMy WebLinkAboutFordyce 93-11-14IN THE MATTER OF AN ARBITRATION B E T W E E N: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF FANSHAWE COLLEGE (hereinafter called the "College") - and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") GRIEVANCE OF GARY FORDYCE OPSEU FILE NO. 92A085 (hereinafter called the "Grievor") BOARD OF ARBITRATION:Richard H. McLaren Jon McManus, Union Nominee Hugh Cook, College Nominee COUNSEL FOR THE COLLEGE:Barry Brown COUNSEL FOR THE UNION:Chris Paliare .. i A HEARING IN RELATION TO THIS MATTER WAS HELD AT LONDON, ONTARIO, ON MARCH 2, 1993. AWARD APRIL 20, 1993. FURTHER HEARING IN RELATION TO AWARD NOVEMBER 5, 1993. S U P P L E M E N T A R Y A W A R D I The majority of the Board in its award of April 20, 1993 found the facts at p. 13 to be: that there was a meeting, it was properly constituted as a quorum within the rules, and the meeting proceeded in a fashion consistent with at least some of the meetings in the past. It was common practice for motions to be put, which had failed in previous meetings. The Committee has acted within its mandate, and from a factual point of view, the proper characterization of the meeting is that it was one carried out in the usual fashion. It is so found as a fact. The majority went on to determine the grievance at p. 15 as follows: Therefore, as a maker of law, this Board of Arbitration ought to conclude that there was a consensus, as the Committee has required in the past, in order for motions to be confirmed. The Board also concludes that the meeting was properly established pursuant to the JEQS Committee's own procedure, in view of its interpretation of the collective agreement. There was a quorum present and it must be concluded, given the findings of law by this Board, that there were two motions approved by the Committee, which must be considered as motions of the JEQS Committee pursuant to Appendix 1, paragraph 4. Therefore, the College is unable to act as it did in denying the grievance of the Grievor. The Board of Arbitration declares that there was a motion of the Committee which entitled the Grievor to its benefits. Pursuant to this declaration the Board retained jurisdiction to deal with the maker of remedy in the following fashion: If they [the parties] are unable to agree as to the appropriate remedies arising out of this declaration, the Board will retain jurisdiction to hear further evidence and argument with respect to the remedies which ought to flow from this declaration . . . It is pursuant to the foregoing retention of jurisdiction that this supplementary award is made. In a timely fashion Mr. Paliare, the Union Counsel reported that the parties were unable to agree on the effect of the award and requested by letter dated May 13, 1993 that: and therefore require a further hearing in order to determine the implications of the Board's decision... It is as a consequence of this request that a hearing was held in London, Ontario on November 5, 1993. In accordance with the Board's declaration the parties have proceeded to compensate the Grievor, Mr. Fordyce fully and completely for all monies to which he is entitled under its award. Argument was made at the hearing in November as to the Union's entitlement to further remedial relief in this matter. It was submitted on behalf of the Union that it required a further declaration of the Board that the decision of the JEQS committee determined by this Board to have taken place was by its own rules and the collective agreement in effect a benchmark decision which had application across the entire community college system. The thrust of that submission was that .-, the JEQS committee was provided for in the collective agreement as was discussed in the award of the majority. When it was found as a fact that it had passed a resolution this was in effect a benchmark decision of the committee. Such decisions have by the rules of the committee system wide effect and this is recognized in the collective agreement. It was submitted that this was not expanding the Board's jurisdiction because it had to come to that conclusion in order that the Grievor could be entitled to compensation. It was also submitted that Article 32.04C provided for the effect of the decision to bind all parties and in this case because the JEQS committee was a system wide qualifications body the arbitration award had system wide effect. . It was submitted by the College that the matter the Board was constituted to hear was a grievance from a grievor of Fanshawe College. That individual has had his grievance satisfied and there is nothing left of our jurisdiction the parties having completed the remedy for the grievance. If the Board were to act as the Union urges it would be both expanding its jurisdiction and amplifying and interpreting its award. A Board of Arbitration call do none of those things; and, in this particular case the grievor's remedy being complete this Board is also-functus officio. In support of its position reference was made to the following arbitration decisions: : Re Municipality of Metropolitan Toronto, 8 L.A.C.(2d) 54 Carter, 1974); Re Air Canada, 3 L.A.C. (2d) 375 (Johnston, 1973); Re Skeena Sawmills, 15 L.A.C. (4th) 432 (Bird, 1990) and :Reina v. Andrews. Ex parte Nurses' Ass'n. Etc., [1970] 1 O.R. 247 (High Ct.). The relevant provision of the collective agreement apart from those cited in the original award is: . The finding of the majority of the arbitrators as to the facts and as to the interpretation, application, administration or alleged contravention of the provisions of this Agreement shall be final and binding upon all parties concerned, including the employee(s) and the College. The Board retained remedial jurisdiction in the following terms: "...if they are unable to agree as to the appropriate remedies arising out of this declaration..." It did so in recognition that it had not completed its task of rendering a complete award and a final and binding resolution of the grievance. In the first instance it left the completion of the award up to the parties and their counsel. Then, if they were unable to agree the Board would, on a timely written request, reconvene and exercise its remedial jurisdiction; the parties having failed to complete that task for the Board. They were not able to agree on whether this further declaration now sought by the Union was an appropriate remedy arising out of the Board's previous declaration. That is the issue we must now determine. Did the parties by their own actions in compensating the Grievor based on the Board's declaration exhaust the remedial jurisdiction retained by it? The language of that retention was broad "appropriate remedies" arising from its earlier declaration. That could certainly include some further declaration arising out of the original declaration in the April 20th award of the Board. However, can this Board do so now after the parties own actions. Aside from the wording of the award and the language used to retain jurisdiction the parties express intentions at the original hearing are relevant to answering the question of remaining jurisdiction. The grievance, exhibit #l, started from the premise that the JEQS committee had made a motion on November 1, 1991. It then said: In mv case the College has failed to apply this ruling not allowing me to progress to Step 16 on the salary scale. Therefore, I grieve that the College has violated Articles 2,3, 7 and appendix l et al of the Collective Agreement. As remedy I seek that the College move me to Step 16 on the salary scale immediately. I also seek an immediate payment for this withheld progression back to August 1, 1991 with accumulated interest. {The emphasis is that of this Board} The case that the Union put to the Board proceeded as did the grievance on the presumption that there was a committee ruling. It was the intention of the Union to pursue an individual grievance based upon the College's failure to apply a ruling of the JEQS committee. The board was asked to find as a fact that the committee by its own rules had made a ruling the benefit of which the Grievor was entitled. This Board was not asked to inquire into the nature of the JEQS committee ruling and its implications beyond the fact that there was a committee ruling. Therefore, the award of the Board is final and complete when the parties agreed upon the remedy by way of compensation to the Grievor. What this Board is being asked to do now is interpret its own decision by way of making a further declaration which it did not make, and did not have to make to deal with the grievance before it; or, the way in which the parties proceeded . to deal with the case. It is in effect being asked to determine the committees procedures and how they operate in respect of the particular ruling this Board has found it made. Not only would we be interpreting our own decision but we would be characterizing and determining the committees own rules, procedures and their implications for the college system as a whole. A Formal and binding decision was reached when the parties completed the award. If this Board were to issue a further declaration of the nature sought by tbe Union it would be interpreting its own decision once a Formal and binding award had been issued. A Board of Arbitration can not and should not do so as was well set out and explained by Arbitrator Carter in Re Mun. of Metro Toronto, supra, at 55. If we were to so act we would be enlarging the scope of tbe issue initially submitted to us. By going beyond the scope of the original claim, we would be exceeding our jurisdiction and dealing with a matter which must properly be dealt with by others. We are being asked to make explicit by way of declaration the very premise upon which the whole case proceeded and we made no comment upon other than to find as a fact that the JEQS committee had made a ruling. The nature and quality of that ruling and its implications for the college system were not at issue before us. For this Board to make the requested declaration would be to act beyond the scope of the original claim. It would be beyond our jurisdiction to so act as it was in Re Air Canada, supra and Re Skeena Sawmills, supra. . The parties in completing the remedy exhausted the jurisdiction retained by this Board to deal with the grievance. A final and binding decision was issued by it when the Grievor received full and complete compensation. In the language of the courts this Board is now functus officio and precluded from continuing to deal with the grievance The consequence of the foregoing findings is that this Board can not act as requested by the Union. It is so determined by this supplementary award. The request of the Union must, therefore, be denied. DATED AT LONDON, ONTARIO THIS 14th DAY OF NOVEMBER, 1993. Richard H. McLaren Signed "Jon McManus" I concur See attached AddendumJon McManus, Union Nominee I concur/ Hugh Cook, College Nominee Fanshawe.SJ2 ~-- ADDENDUM BY UNION NOMINEE -I have concurred with the findings of my Colleagues in the award, but would at the same time like to point out the following: given the very special nature and circumstances of this case, I feel it would have been more expeditious and less costly to the parties to have allowed the present Board of Arbitration to answer the question put by the Union. In Sack and Poskanzer, Labour Law Terms: A Dictionarv of Canadian Labour Law, the following is stated in defining fi~nctus o~cio, "the doctrine does not prevent an Adjudicator from completing his/her decision by dealing with matters left unaddressed, nor does it preclude him/her from subsequently explaining the decision" . It is my opinion that had the present Board been allowed to apply the above then future costly litigation could be avoided. Dated at London, Ontario this 14th day of December, 1993. Si~ned "Jon D. McManus Jon D. McManus Union Nominee