HomeMy WebLinkAboutVincent 98-02-01IN THE MATTER OF AN ARBITRATION
B E T W E E N :
SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(THE EMPLOYER)
A N D :
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF THE GRIEVANCE OF DANNY VINCENT
BOARD OF ARBITRATION:
HOWARD D. BROWN, CHAIR
SHERRIL MURRAY, UNION NOMINEE
R. GALLIVAN, EMPLOYER NOMINEE
APPEARANCES FOR THE EMPLOYER:
R. Dunsmore, Counsel
M. Fogel, Dir. ER
APPEARANCES FOR THE UNION:
E.J. Holmes, Counsel
Ted Montgomery, Local Pres.
Josef Stavroff, Chief Steward
Danny Vincent, Grievor
INCUMBENTS
Geri Agney
Neilia Sherman
Sue Cohen
A HEARING IN THIS MATTER WAS HELD AT TORONTO ON OCTOBER 7, 1997.
AWARD
The grievance dated October 28, 1996 arises under the provisions of a collective
agreement in effect between the parties at all material time in which the Grievor claims as
follows:
“The College is in violation of the Collective
Agreement in that it has failed to place me in a vacant full
time position or in a position currently occupied by a
person or persons whose duties include teaching in the
following areas: Human Relations, Philosophy,
Interpersonal Skills, Communication Skills, Psychology,
Humanities or Social Sciences; or counselling of students.
The remedy required is that the College shall place me into
a full time regular position without loss of salary, benefits
or employment status.”
At the hearing, the Employer raised a preliminary objection as to the jurisdiction
of the Board to deal with this grievance which it claims that as the Grievor did not follow
the mandatory requirements of the collective agreement applying to a grievance of this
issue, he cannot proceed with the grievance. Those employees potentially affected by the
outcome of the grievance listed above were given notice and attended at the hearing. The
Board received the evidence and submissions of the parties concerning the Employer’s
preliminary position and reserved its decision without dealing in any way with the merits
of the grievance.
As a result of a reinstatement of an employee, a notice of layoff was given to the
Grievor on September 24, 1996 which in part sets out as follows:
“This will confirm that the College has had to effect a
reduction in staffing requirements.
In accordance with the provisions of the Collective
Agreement for Academic Employees, the College
Employment Stability Committee has met for the purpose
of discussing the planned staff reduction, the circumstances
giving rise to the reduction, and the employees affected.
It is with regret that the College must now advise you that
at the present time no position has been identified for you
beyond your current assignment. As a result, the College is
proceeding to provide you with ninety (90) calendar days’
written notice of layoff, s required in accordance with
Article 27.05(vii) of the Collective Agreement. In the
event that the College identifies another position for you,
the College shall provide you with written notice of
reassignment in lieu of layoff. John Struthers, Chair,
School of Comity Services, is available to meet with you to
discuss the basis of your selection for layoff, if requested.”
Following receipt of this notice, the Grievor met with John Struthers after which the
grievance was filed. It is the Employer’s position that the Grievor was required to
specifically identify particular positions who the employee claims entitlement to displace,
which he did not do and failed to comply with the requirements of Article 27.08, the
terms of which are as follows:
Lay-Off Grievances
“
27.08 A
An employee claiming improper lay-off,
contrary to the provisions of this Agreement, shall state in
the grievance the positions occupied by full-time and non-
full-time employees whom the employee claims entitlement
to displace. The time limit referred to in 32.02 for
presenting complaints shall apply from the date written
notice of lay-off is given to the employee.
27.08 B
If the grievance is processed through Step 2,
the written referral to arbitration in 32.03 shall specify,
from the positions originally designed in 27.08 A, two full-
time positions, or positions occupied by two or more
partial-load or part-time employees (the sum of whose
duties will form one full-time position), who shall
thereafter be the subject matter of the grievance and
arbitration. The grievor shall be entitled to arbitrate the
grievance thereafter under only one of ( i), (ii), (iii), (iv),
(v), (vi), (vii), or (viii) of 27.06.”
The response of the Employer at Step 1 of the grievance procedure held on
November 15, 1996 set out in a letter of that date to the Grievor sets out in part as
follows:
“It is the Union’s position that the College has violated the
Collective Agreement in that it has failed to place you in a
vacant full-time position or in a position currently occupied
by a person or persons whose duties include teaching in the
areas of Human Relations, Philosophy, Interpersonal Skills,
Communications Skills, Psychology, Humanities or Social
Sciences or a person responsible for counselling of
students. The Union also questioned whether or not the
College had followed all of the steps required under article
f27.
It is the College’s position that appropriate notice to the
Union was given on September 13, 1996 followed by a
meeting on September 16, 1996 in compliance with article
27.05. Therefore any grievance at this time concerning
matters under article 27.05 would not be within the
grievance time limits.
With regard to article 27.06 the College followed all of the
steps necessary to try to find an appropriate placement for
you. At this point in the process it is your responsibility to
provide positions and the names of faculty in those
positions who you feel you can replace.”
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On November 25, the Grievor gave notice of proceeding to Step 2 which is as
follows:
“The College’s reply to my grievance at Step One is
unsatisfactory. I wish to proceed to Step Two.
With respect to the College’s assertion that my grievance
was not filed within the required time limits, notice of
layoff to the Union is not notice to me. I received written
notice of layoff on September 27, 1996 and have been in
full compliance with the time limits specified under article
27.05.
With regard to the final paragraph of the memo of
November 15, 1996 concerning my grievance, the College
has not involved me directly in any effort to find an
appropriate placement nor have they provided me with the
information necessary to identify positions I could be
placed in.”
On December 3, 1996, the Grievor was:
“reassigned to a sessional position in the School of
Community Services as a temporary replacement for David
Sernick who has requested a parental leave of absence.
Accordingly, your layoff notice period shall be extended
until completion of the sessional assignment on April 25,
1997 and your current assignment on April 25, 1997 and
your current salary and benefits shall be maintained for the
duration of the sessional assignment…”
A Step Two grievance meeting was held on January 6, 1997, the report of which
is as follows:
This was followed by the Grievor’s notice to the College that the answer was
unsatisfactory and the matter was referred to arbitration and further stated:
“Also, I do not accept that the position I am now in is a
sessional position.”
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On February 6, the Union advised the College that the reply to the grievance was
not satisfactory and it was being referred to a Board of Arbitration.
On April 28, 1997, the Grievor wrote to Mr. Quinlan, President of the College, as
follows:
No grievance was filed concerning the reassignment of the Grievor to a sessional
position but it is the Union’s position that this issue was rolled into the grievance and
dealt with at the Step Two grievance meeting in January.
It is the submission for the Employer that pursuant to Article 27.08(a), the
Grievor must identify positions and names of the employees who the Grievor claims to
displace in the grievance and on reference must identify two employees from that group.
These are mandatory obligations of the employee who violates his responsibilities under
the collective agreement when he chooses not to be responsive and therefore eliminates
the Board’s jurisdiction to deal with the grievance. Failure of the College to provide
information to the Grievor is not relevant to the Grievor’s responsibilities under this
Article. The Grievor referred only to areas of teaching and not positions without
identifying the occupants which must be done in accordance with the time limits of
Article 32.02 yet the Grievor did not identify a position and employee until his letter
dated April 28, 1997 to Mr. Quinlan well beyond the time requirements of this Section.
The Grievor had previously been put on notice by the College of his requirements and
could have remedied that concern at Step Two of the grievance procedure which he did
not do. Article 27.08( b) requires specificity in the written referral to arbitration which
was not provided.
In its submission, the grievance is improperly filed under this Article and neither
the referral to arbitration by the Grievor or by the Union identified two full-time positions
as the subject matter of the arbitration. Therefore, the procedure is fatally flawed when
the selection was made six months after the requirement of the time set out in
Article 27.08 (b) which limits the processing to 20 days from the date of notice of layoff
given to the Grievor on September 24, 1996. The Grievor’s failure to comply with these
terms therefore means that the grievance has been abandoned and that process cannot be
rectified by the Board which does not have jurisdiction to hear the grievance on its merits
as a result of the non-compliance with the mandatory terms of the collective agreement.
Reference in its submission was made to the following awards: Re Fanshawe
College and Ontario Public Service Employees Union (Weatherill, June 17, 1987); Re
The George Brown College of Applied Arts and Technology and Ontario Public Service
Employees Union (Burkett, December 29, 1995); Re Conestoga College and Ontario
Public Service Employees Union (O’Shea, January 20, 1978); Re Humber College and
Ontario Public Service Employees Union (H.D. Brown, February 18, 1992); Re
Fanshawe College and Ontario Public Service Employees Union (Simmons, August 12,
1997).
Mr. Dunsmore further submitted that the Employer had not waived its right to
object to the jurisdiction of the Board but had made a timely objection to the deficiency
in the grievance as set out in the Step One response by the Dean and continued in its
response to the Step Two meeting by Mr. Fogal. Thereby, the Employer put the Union
on notice of the deficiency and its objection to the grievance. Re Canadore College and
Ontario Public Service Employees Union (MacDowell, December 12, 1996).
In its submission, whatever occurred with regard to the Grievor’s assignment in
December 1996 is not relevant to the jurisdictional issue the College raised with regard to
this grievance under Article 27.08. The Employer did not ignore the rights contained in
Article 27.08 but the Dean alerted the Grievor to the objection to the grievance and did
not indicate at any time that it would not rely on the requirements of Article 27.08 with
which the Grievor had not complied and knew that he had not done so which was the
College’s position as communicated to the Grievor that the grievance was considered to
have been improperly filed.
The submission of the Union is that the grievance is clear on its face in
that it identified positions or persons teaching in those positions in the divisions or
departments and could not be clearer than reference to counselling of students.
Counsellors are included in the collective agreement which is the position the Grievor
sought. It was submitted that the response to the grievance at Step One dated November
15, 1996 amounts to a waiver by the Employer of the requirements of Article 27.08 (a) in
that the Grievor was told that it was his responsibility to provide the positions and names
of faculty and by doing so, indicated that the College was not relying on any failure to
comply with that Article. The Union did not at any time indicate it would only supply the
names at arbitration and it is its position that the College was required to provide the
names of employees to add to the positions claimed in the grievance.
It was further submitted that there was no provision for the Employer to assign a
full-time professor to replace another full-time professor on a sessional basis as occurred
in December 1996 by which the 90-day training rights were denied and extended the
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notice period from January to April 25 which in essence revoked his layoff. This issue
in its submission forms part of the grievance and was dealt with at Step Two by the
College and therefore even if Article 27.08(a) is found to apply, a remedial issue arises
from this assignment of the Grievor who did not accept a sessional position.
It was submitted that the naming of two full-time positions and employees under
Article 27.08 (b) was not complied with but it was overcome when the Union took a fresh
step in the reference to arbitration without response by the College that there had been a
violation of this term. The two claims were identified by the Grievor in his letter dated
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April 28 before which there had been no correspondence from the College to the Union
that it had not met the terms of Article 27.08 (b). In its submission, the College waived
its reliance on Article 27.08, the Grievor indicated that he needed more information to
make the decision required which was not provided to him and waited until the hearing to
object to the form of the notice of referral to arbitration and had not made a prompt
objection to the grievance but its silence became acceptance and waived its reliance on
Article 27.08.
In the Canadore decision, (supra), the board dealt with the grievance including a
claim under Article 27.08(a) in which the Employer objected in that the Grievor failed to
identify the potential positions occupied by others the Grievor claimed entitlement to
displace and that he breached the mandatory provisions of this Article. The grievance
was dismissed by the Board in which both the previous awards of Arbitrator Shime and
Arbitrator Weatherill were referred to in the context that the provisions of Article 27 as
presently constituted in the agreement are mandatory and that failure to comply is fatal to
the success of the grievance. At page 10, the board stated:
“These are admittedly old cases. But they are precisely on
point, no contrary authorities were cited to us, and the
language in question has been maintained, without material
change, since 1987, over several rounds of bargaining. Had
the parties wished to change the contract language to avoid
the interpretation given by arbitrators Shime and
Weatherill, they could easily have done so. But they did
not. On the contrary, Article 27.08(b), as currently framed,
merely reinforces the mandatory thrust of Article 27.08(a);
because 27.08B narrows the number of positions which can
ultimately be the subject of arbitral review. The matters
that can proceed to arbitration are a subset of the positions
identified in Article 27.08(a) which make it all the more
important for the grievor to identify the field from which
the arbitrable subset is selected.
In other words, the current structure of the
agreement reinforces the interpretations advanced by
arbitrators Shime and Weatherill ten years ago.
It follows, we think, that Mr. Mueck’s grievance is
fundamentally defective and therefore is not arbitrable…”
The Grievor in the instant matter referred to areas of duties in which he requested
a full-time vacant position but did not state in his grievance those positions within those
areas that he claimed to be able to displace. The only specific position which he referred
to is counselling of students and there is a counsellor classification included in the
collective agreement, the incumbent of which is responsible for assisting students. Even
if that reference in the grievance satisfied a description of a position for the purposes of
Article 27.08(a), the requirement is stated in the plural in identifying the field as indicated
in the above, from which two full-time positions being the subset referred to above are
required by Article 27.08(b). The grievance does not, on its face, comply with that
requirement and was not dealt with in the manner required by Article 27.08 until the
Grievor’s letter dated April 28, 1997. That statement exceeds the time limit set out in
Article 27.08(a) which has reference to Article 32.02 which has been held to be
applicable from the date of notice of layoff to the Grievor. In that regard, we have
reference to the Fanshawe College award, (supra), the most recent award on this issue
referred to this board and which deals with the same issue arising out of Article 27.08 and
inter alia as to the time-limit requirement. The Board at p. 17 stated:
“The decision by the College on the one hand, following
notice to the employee of a layoff, and the ‘effective date of
the layoff’ are two separate and distinct dates. The notice
to layoff is, for our purposes, contained in art. 27.08 a
which limits the time following notice to present
complaints and that is the time when the complaints must
be referred to the College. It is also at that time that the
employee must state in her complaint that she is being
improperly laid off…”
The Board in that case dealt with a grievance of improper layoff in which the College as
in the present matter, took the position that the grievance was not arbitrable because the
Grievor failed to identify positions that she was seeking to displace pursuant to Article
27.08 and that failure was fatal to the arbitration of the grievance which the majority of
the board dismissed. We are advised that this award has been moved by the Union for
juridical review but not yet dealt with. The award however, may be considered in the
context of the same issue between the parties in the present matter and in which the board
applied the ratio of the Canadore award. As a result, it was found that the failing to name
vacant positions which may have been available to the Grievor was a fatal flaw to the
grievance and referred to the previous decisions which made it clear that the employee
must designate certain persons or positions that the Grievor was competent to perform
which she had failed to do throughout the grievance procedure. At p. 15, it is stated:
“We do not regard the Union’s allegation that the College
must provide information to the Grievor as to what vacant
position she seeks to be placed into but instead it is up to
the Grievor when claiming a vacant position to set out what
position she is claiming…”
and at p. 18:
“When the Grievor filed her grievance on April 15, 1996
alleging improper layoff, she was obligated to look around
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on April 15 for a vacant position then existing pursuant to
Art. 27.06 (i or name employees who held full-time
positions pursuant to Art. 27.06(ii) or (iii) or name partial
load, part-time and sessional employees pursuant to the
remaining subparagraphs of Article 27.06.”
Thus, following that direction, the Grievor was required to identify positions, in the
context of the notice of the Grievor’s layoff on September 24, 1996 at which time within
the time requirements of Article 27.08 (a), the Grievor did not follow what is clearly the
mandatory provisions of Article 27.08. The Board held the view that failing to name
vacant positions that may have been available to her is a total flaw to the grievance.
In the instant matter, the grievance was presented in writing a t Step One of the
grievance procedure and a meeting was held on November 15, 1996 referred to above,
the report of which sets out the reasons of the College for rejecting the grievance in
compliance with Article 32.03. The Grievor gave notice that the answer was
unsatisfactory and proceeded to Step 2 which meeting was held on January 6, 1997 and
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the reasons of the College for its rejection were set out in its letter dated January 20.
From that, it is noted that discussions were held under Article 27.06 and applied to the
Grievor who then can be assumed to have had, for the purposes of compliance with
Article 27.08, sufficient information to name the positions which he claims entitlement to
displace. Then after Step Two, the notice of a referral to arbitration must specify two of
the positions and names of the employees who will be the “subject matter of the
grievance at arbitration” pursuant to Article 27.08(b). Neither the reference to arbitration
by the Grievor or the Union complies with that requirement of Article 27.08 (b), it was
only by letter dated April 28, 1997, that the Grievor named two counsellor positions and
the employees he claimed to displace. There are a limited number of counsellor positions
in the College of which the Grievor was aware at the time of his layoff and there is no
reasonable explanation that the information he provided by this letter, could not have
been obtained and provided by him in his grievance as required by Article 27.08(a). We
do not accept the Union’s allegation that the Grievor was prejudiced in his presentation of
the grievance by lack of information provided by the College as, in these circumstances,
within the field of the counselling of students referred to in the grievance, and set out in
the Grievor’s letter in April 1997, those positions existed and could have been identified
in the referral to arbitration as mandated by Article 27.08(b). The collective agreement is
drafted in specific and clear terms that the responsibility rests with the employee who
claims an improper layoff to state the positions the employee claims. That follows a very
detailed layoff procedure by which such information required by Article 27.08(a) should
be obtained. That procedure involves the CESC and after that consulting process, if
required, notices of layoff are sent to the affected employees. Article 27.06 sets out the
placement and displacement provisions applying to those affected. In this process,
various positions, vacant or occupied by full-time, part-time and sessional employees are
considered before a layoff is effected. To complete that process, there must be
considerable information used and available which an affected employee may request
pursuant to Article 27.05 (vii) to obtain an understanding of the employer’s reasons for
the selection of the employees and its position as to the skill and experience of an
employee to teach in available positions.
Those terms then are consistent with the Grievor’s responsibility to set out the
precise nature of this grievance within the meaning and intent of Article 27.08 including
the mandatory time limit for such action in Article 32.02. The Grievor’s complaint in his
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letter dated April 28 that the College failed to provide him with information cannot be
supported and does not relive his responsibility to comply with the mandatory terms of
Article 27.08. The onus is placed by the parties directly on the Grievor to submit a
grievance in the required form and substance to allow the College and incumbents, if any,
to know what is being claimed to which a response can be made.
There is no evidence that the Employer deliberately or in bad faith withheld
pertinent facts from the Grievor which would impair his ability to comply with
Article 27.08. The ratio of the Canadore award and the older but relevant decisions settle
this issue which places the responsibility of compliance with those terms squarely with
the employee. These are substantive requirements of the collective agreement where
failure to comply is ‘fatal for the success of the grievance’ which conclusion reflects the
exacting language the parties designated to deal with complaints of improper layoff.
Thereby, the parties have put the burden on the complainant to comply in order to have
the issue dealt with by which the input or lack thereby by the College is not relevant to
the satisfaction of the employees onus under Article 27.08.
The Board therefore concludes that the Grievor failed to comply with the
requirements of Article 27.08 which is his responsibility and that the deficiency cannot be
cured by an untimely notification in April of the positions and names of persons which he
intends to displace.
The Union submitted in the alternative that if the grievance was found not to be
filed in accordance with Article 27.08, that the College had waived its rights to object to
such non-compliance by the Grievor as found. The application of waiver was dealt with
in the George Brown College award (supra), in which there was an objection of the
College that neither the grievance or the referral to arbitration identified any positions
under Article 27.08 and the board was without jurisdiction. The Board dealt with the
Union’s allegation that the College had waived any objection that it otherwise might have
had as to the grievance and submitted that the requirements of this Article are procedural
which can be waived. Reference in that award was made to the following statement in
Collective Agreement Arbitration in Canada (Palmer):
“The term waiver will be used to describe situations where
failure to make timely objections to non-compliance with
the procedural requirements of the grievance procedure
prevents the objection from being raised later.
Conduct which has been held to amount to waiver includes
allowing a grievance to go through the grievance
procedure, failure to object at the first opportunity, not
exercising at the time the grievance is first presented, and
employer options stipulated in the collective agreement to
refuse an untimely grievance, substantial lack of
compliance with the grievance procedure by both sides in
an attempt to settle the grievance…”
That Board found that the provisions of Article 27.08 can be waived as they establish the
procedure to be followed in the filing and processing of any grievance claiming improper
layoff. It does not affect the heart of the board’s jurisdiction and therefore can be waived
in the same manner as a mandatory time limits which are found to be subject to the
application of the doctrine of waiver. In that award, it was noted that while the grievance
did not identify specific challenged positions, it was allowed to proceed from Step One to
Step Two without objection from the College and therefore, it was found that the
procedural requirements were waived where the College was advised orally of the
positions in issue. It was stated that the College, if relying on Article 27.08(b) should
have made a prompt objection upon the referral to arbitration and not eight months later
and therefore waived its reliance upon the requirements of Article 27.08(b).
We have considered the findings of the Board in that award but also have
reference to the previous awards which clearly indicate that the terms of Article 27.08 are
substantial and mandatory and the failure to meet those terms as a matter of substance is
fatal to a grievance. That is the position which this Board follows and adopts. Therefore,
the doctrine of waiver as described and applied in the George Brown award, does not
apply to waive substantial and mandatory requirements of the collective agreement.
Apart from that, the Minutes of both Step One and Step Two responses to the grievance
clearly indicate the College’s objection to the timeliness of the grievance and as stated in
the report dated January 20, 1997:
“The grievance has been improperly filed and that Article
27.08 requires that the grievance shall state the positions
occupied by full-time and non-full-time employees whom
the employee claims entitled to displace.”
We find that an objection was raised at the first opportunity by the College to respond in
writing to the grievance and which objection it continued at the second step response to
the grievance. The referral to arbitration is a procedure following the Employer’s reply at
Step Two and under Article 32.04(a), the matter referred to arbitration which was both by
the Grievor and the Union, where it was stated that the College’s answer at Step Two was
not satisfactory. That Step Response included the College’s position with regard to its
objection to the grievance. It was therefore, not necessary for the College to further
record its objection after the notice of referral to arbitration in order to preserve its
objection made initially in response to the grievance. This situation is clearly
distinguishable from the facts in the George Brown award and leads to the conclusion by
this Board that the College did not in fact waive its right to object to the arbitrability of
this grievance. There is no evidence that the College intended or did indicate that it
would give up its rights to rely on the strict terms of Article 27.08 as to the claim of the
Grievor such as to constitute a basis to apply the doctrine of waiver in the application of
contractual terms. The Grievor did not meet his responsibility to provide the details of
the specific positions and persons which he intended to displace, which is his
responsibility under the terms of Article 27.08 and that failure as indicated in the prior
awards is fatal to the arbitrability of the grievance.
The Union further submitted that apart from such a finding, a remedial issue
survives with regard to the Grievor’s claim that he was improperly assigned to a sessional
appointment by the College in the School of Community Services as a temporary
replacement for another full-time employee thus his layoff notice period was extended to
April 25, 1997. The College responded to that claim at the Step Two meeting of the
grievance however, it was not a separate complaint pursued by the Grievor under
Article 32.02 nor made by statement of claim in the grievance dated October 28, 1996. If
the Board found it had jurisdiction to determine that grievance, that issue might arise as a
matter of remedy flowing from the grievance. As however, the Board has declined
jurisdiction to deal with the grievance, it has no authority to make any determination
under the terms of the collective agreement with regard to a secondary issue which does
not in the alternative to making a determination of the issue of improper layoff survive as
an issue when the grievance on which it is based has been dismissed.
For all of these reasons, the Board must find that it does not have jurisdiction
under the collective agreement to determine the merits of the grievance.
DATED AT OAKVILLE THIS DAY OF FEBRUARY, 1998.
HOWARD D. BROWN, CHAIR
SHERRIL MURRAY, UNION NOMINEE
R. GALLIVAN, EMPLOYER NOMINEE