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HomeMy WebLinkAboutUnion 98-06-01IN THE MATTER OF AN ARBITRATION B E T W E E N : NIAGARA COLLEGE (THE EMPLOYER) A N D : ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF A POLICY GRIEVANCE - LOCAL 242 BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR JACQUELINE CAMPBELL, COLLEGE NOMINEE MICHAEL SULLIVAN, UNION NOMINEE APPEARANCES FOR THE COLLEGE: Natasha vandenHoven, Counsel Jim Garner, Director, H.R. Joanne Echlin, Council of Regents APPEARANCES FOR THE UNION: Mary Anne Kuntz, Grievance Officer Shirley McVittie, Senior Benefits Officer Sherry Rosen, Pres., L.U. 242 A HEARING IN THIS MATTER WAS HELD AT TORONTO ON MARCH 3, 1998. AWARD The grievance dated May 23, 1997 is a claim of the Union that “a penile implant is an eligible expense under the Extended Health Plan”. The Union requests that such claims be paid by the College and with interest. A retired Professor of the College was denied coverage for his claim for this expense which lead to the Union’s grievance. The denial of the claim by Sun Life of Canada was sent to Ms. McVittie on April 2, 1997 in which it is stated among other things that: “we must advise that a device of this sort is not an eligible expense within the terms of this contract.” The response to the grievance a t Step1 by the College is that the issue was not arbitrable under the collective agreement. Its preliminary objection to the arbitrability of the grievance and the Board’s jurisdiction to deal with the grievance on its merits was raised at the hearing. In the circumstances, the Board determined that it would first deal with and determine the preliminary issues and received the submissions for the parties in that regard at this hearing. The Board reserved its decision on this issue and did not proceed with the merits of the grievance and adjourned the proceedings. The submission for the College is that the grievance should be if at all, brought by the employee who has claimed the expense and not the Union which is precluded from bringing the grievance pursuant to Article 32.10. Further, the College is required under Article 19.01 only to pay “100% of the billed premium of the Extended Health Plan for employees covered thereby and subject to the eligibility requirements of the Plan”. As such, the benefits under the Plan must be claimed against Sun Life and not the College under the collective agreement. The booklet provided to employees which mirrors the terms of the insurance policy provided by Sun Life describes the eligible expenses which must be submitted to Sun Life which will determine payment of claims. A penile implant is not an eligible benefit under the insurance plan. It was submitted that the Union cannot submit a grievance which is for a personal individual claim. There is no standard involved, the grievance does not pertain to a practice affecting all the members of the bargaining unit but arises under a specific benefit provided by the insurance carrier, not the College which is not obliged to provide specific benefits under the collective agreement. The claim is specifically linked to a particular medical circumstance of an individual and therefore, as a Union grievance, it is not arbitrable. No employee has been denied the benefit claimed and therefore, the grievance is premature. Reference was made in its submission to Re George Brown College and O.P.S.E.U. (Devlin, June 8, 1994); Re Seneca College and O.P.S.E.U. (Swinton, March 4, 1983). It was further submitted that pursuant to Article 19.01, the only obligation of the Co llege is to arrange for an insurance plan and to pay premiums. The insurance plan is not incorporated into the collective agreement and falls under the third category set out in Canadian Labour Arbitration, 4.1400. In that circumstance, a grievance “will not lie for failure to provide benefits”. The College by this arrangement has not assumed the obligation of an insurer. As set out at page 4 in the Swinton award, it was stated: “Eligibility requirements are to be determined by the extended health care plan contract, the insurance company’s document not the employers. This language indicates that the employer is not itself the insurer but rather is obliged to act only as agent to obtain insurance coverage for the employees and to pay premiums. Application of the plan is then between the insurance company and the insured with disputes ultimately to be resolved by litigation”. Reference in support of that principle was made to Re ULS Corporation and Canadian Maritime Union (Davy, October 17, 1997); Re Corporation of the Town of Oakville and CUPE, th Local 136, 68 L.A.C.(4)117 (O’Neil); Re Atlantic Packaging Products and the Graphic Communications International Union (Carrier, November 14, 1997); Re Weber v. Ontario Hydro, th 125 D.L.R.(4)583; Re St. Anne- Nackawic Pulp and Paper Co. Ltd. and C.P.U., Local 219, 28 th D.L.R.(4)1; Re Pilon v. International Minerals and Chemical Corp., (1396), 31 O.R.(3d)210. It was submitted that the ratio of the Pilon decision did not change the law and the traditional arbitration approach still applies as to the arbitrability of group benefits where the employer’s obligation is to pay premiums only and thus claims must be made against the Insurer not the Employer. Further the grievance does not fall within the provisions of Article 4.01(a) of the collective agreement in that, on its face, the benefit plan does not provide for the device claimed and is not a matter of discrimination against an employee under the Ontario Human Rights Code. There is no evidence of any action or conduct by the Employer which has taken place contrary to the collective agreement and therefore the grievance is premature and should be dismissed. The Employer did not waive its rights to object to the arbitrability of the grievance which was its position in response to the grievance. The Union grievance relates to a benefit claim of a retired employee who is not in the bargaining unit and is not an employee represented by the Union and on that ground, it was agreed that the Union grievance is improper. It is the Employer’s submission that a claim of this nature by the individual must be taken against the Insurer and is not arbitrable under the collective agreement. Ms. Kuntz referred to a letter she received from Counsel for the Employer dated February 23, 1998 in which notice of the preliminary objection it would raise at the hearing was given and that a ruling would be requested by the Board before dealing with the merits of the case but as well, it was stated that the College had not raised the preliminary objection as to an issue of a policy or individual grievance “and has been treated throughout the grievance process as a th policy grievance”. Subsequently on February 26, Ms. vandenHoven advised Ms. Kuntz that this issue would be raised as a preliminary objection. On that basis, it was submitted that the Employer had waived its right to object to the form of the grievance and that objection of the Employer at the hearing should not be entertained by the Board. It is the Union’s submi ssion that it has an interest to grieve in that this particular situation of the retired employees’ claim for an implant device raises a larger issue under the Human Rights Code. As well, notwithstanding the denial of the individual claim by the insurer, the employee might have a separate action against the Union. The cases referred to by the College deal with L.T.D. claims of employees while the claimant does not fall within that definition, he has access to the benefit plan as a retiree for whom the Union can properly bring a grievance which he could not himself bring under the terms of the Collective Agreement. The Union grievance includes a question of whether the benefit plan offends the Human Rights Code and is contrary to the Collective Agreement which issue it is obliged to pursue in that the failure to cover this device under the benefit plan may be found to be a patent violation of the Collective Agreement as it relates to the application of the Code. The question is whether this device should be compensable to the same extent as other gender related benefits are compensable. The Union should be provided with latitude as to the form of a grievance where there is potential harm to other bargaining unit members. This claim in its submission is not isolated but has previously been raised between the parties in the meetings of the Joint Insurance Committee. Re Fanshawe College and O.P.S.E.U., (O’Shea, February 1983); Re Algonquin College and OPSEU (Weatherill, December, 1983). The present grievance is not of an individual but central to the position of the Union with regard to the standard of the Insurer of denying coverage of payment for the implant device which, in its submission, is patently unreasonable under the provisions of Article 4 and can potentially affect the members of the bargaining unit. Re Fraser Valley Child Development th Centre and Health Sciences Association, 54 L.A.C.(4)111 (Monroe); Re Alberta Union of th Provincial Employees and USWA, Local 5885, 23 L.A.C.(4)422 (T. Jolliffe). While retired employees may pay the premiums to continue their access to benefits under the terms of Article 19.02 of the collective agreement, that does not confer their right to grieve under Article 32.01. That supports the Union’s right to grieve on the issue of payment of benefits applicable to such persons. It is the Union’s further position that the provisions of the Extended Health Plan are incorporated by reference into the collective agreement. The functions of the Joint Insurance Committee cannot be viewed as an appeal mechanism so that the Union has the obligation to deal with the issue where there is any question of the application of the Human Rights Code. The grievance includes a claim against an unreasonable standard because the benefit plan does not include coverage for a penile implant which has a potential effect across the bargaining unit. The Union is not barred under the terms of the collective agreement from initiating the grievance on this issue which concerns the application of the benefit plan which is administered through the Joint Insurance Committee but the control rests with the Council of Regents which is responsible to ensure the plan meets its obligations under Article 4. There is nothing in the collective agreement to bar the Board of Arbitration from making a determination of the question of discrimination which can only be raised by the Union through the grievance procedure. It was submitted that this Board of Arbitration has jurisdiction to enforce the obligations between Sun Life and the Council of Regents which has more than the responsibility for the payment of premiums and the access of the Union to the grievance procedure under A. 32.10 is th not thereby limited. Re Drug Trading Company Ltd. and U.S.W.A., 56 L.A.C.(4)153 (Eberlee); Re British Columbia Rapid Transit Co. Ltd. and Office & Technical Employees Union, Local th 378, 6 L.A.C.(4)310 (McColl). As the Employer has an obligation to participate in the Joint Insurance Committee, both parties including the Council of Regents deal with the insurance plan and participate in the Committee’s discussions concerning the plan. The Union is not prevented thereby from raising an issue in a grievance of whether a part of the insurance plan is a violation of the Human Rights Code. The method of arbitration provided under the Collective Agreement is the appropriate forum to deal with such disputes thus it was maintained that the grievance is arbitrable. The Step 1 reply of the College to the grievance is quite clear that its position concerning the grievance was that it was not arbitrable under the collective agreement. There were no specifics given as to its position at that time concerning the issue but that was dealt with by its Counsel in her letter dated February 23, 1998 to Ms. Kuntz referred to above. By that letter, the issue delineated is that of the obligation of the Employer with regard to the benefits under the Insurance plan. The form of the grievance whether policy or individual was not raised and there is reference to the treatment of the grievance as a policy grievance throughout the grievance th process. The Employer sought to resile from that position by letter dated February 26 and continued with that objection at the hearing as to the application of Article 32.10. The issue raised by the Union requires the Board’s consideration of the terms of the collective agreement relating to the issue including Article 4.01. Firstly, we dismiss the Employer’s objection on the basis that a retired employee who under Article 19.02 is entitled to Insurance coverage under the Extended Health Plan, has no other means of representation and challenge concerning the application of that plan under the collective agreement than through the Union. Therefore, we find that it is not an issue which an employee as defined in the agreement would be personally entitled to grieve as the individual in this case is not so entitled although he has maintained extended health coverage as a retired employee provided by Article 19.02. Secondly, we are satisfied from the reference to the notes of the Joint Insurance Committee that the issue is not isolated but has been brought to its attention and is such which might adversely affect the rights of employees covered by the collective agreement and represented by the Union. In the George Brown award (supra), it was conceded that an individual grievance could be filed but the circumstances were different than the present matter which concerns the claim of a retired employee and a direct difference with the Employer as to the alleged misapplication of Article 4.01(a) where a benefit particularized to males has not been included in the Extended Health Plan. We also have considered that the Union has reasonable grounds to argue the application rd of the doctrine of waiver in view of the statement of Counsel in her letter dated February 23 that the grievance has been treated as a policy grievance throughout the grievance process, notwithstanding the Employer’s response to the grievance at Step 1. It can be held that the Employer could not rely on the strict application of Article 32.10 with regard to the processing of this grievance to arbitration. For these reasons, this objection of the Employer is dismissed. What is appare nt from the Pilon decision is that the Board of Arbitration is the appropriate forum in which to determine the issue of arbitrability of the grievance presented by the Union. From that decision, it is also held that claims for Insured benefits found to arise through the terms of a collective agreement may be dealt with on their merits at arbitration which leads to the arbitration of such issues and not litigation through the courts against the Insurer. What was not decided was that all claims whatsoever of employees covered by an insurance benefit plan provided under a collective agreement are arbitrable under that agreement. In that case, the Insured benefits which were found to be provided and incorporated into the collective agreement would be properly determined at arbitration and not by the Court. The issue of arbitrability of insured benefits remains to be determined on the facts in each case to establish whether the payment of a benefit claimed in the grievance is one which may be found to arise under the terms of the collective agreement. In the Pilon case, the cost of benefits was to be paid by the Company with the exception of L.T.D. benefits which were to be provided by an Insurer through a plan administered by the Company and paid for through salary deductions from the employees. The Grievor’s L.T.D. benefit was denied and a court action was brought against the Insurer. It was noted that the Supreme Court of Canada in the Nackawic case held that, “it would subvert the collective bargaining relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts of common law…”. It is clear that the requirement of the Employer is to pay 100% of the premiums for the Extended Health care benefit and thereby falls within the description of the third category set out in Canadian Labour Arbitration as a sole obligation of an employer to pay the premiums for insured benefits. In that circumstance, prior to the Pilon case at least, the issue in accordance with general arbitral policy would not be arbitrable. In view however, of the Pilon decision, while it is not completely clear as to the scope of its application to all benefits arising from an insurance plan under the terms of the collective agreement, it would indicate that the Courts following that decision, would likely reject a claim made directly against the Insurer by a person covered under the Insured plan which would leave the retiree in the present situation, without a means to have his claim adjudicated either under the collective agreement or in the civil procedure. An employee’s claim for payment of Insured benefits should not be negated by jurisdictional differences as to the correct forum in which the issue may be heard and resolved. From the ratio of the Pilon case, therefore, the compelling conclusion is that claims for benefits under an insured plan provided under the terms of a collective agreement are to be dealt with through the grievance procedure and arbitration which is the direction of the court and the most recent statement of this approach. While it may be that all such claims and in that case, there was a claim for L.T.D. and not for a benefit not included in the insurance policy as here, if the alleged claim can be said to arise from rights provided in a collective agreement, the grievance is arbitrable and should be resolved by the Board of Arbitration. To preclude the Union from presenting to the Board of Arbitration, its claim on behalf of the retired employee which could arise only through the terms of the Extended Health Care plan provided under the collective agreement would, in our view, fly in the face of the ruling in the Pilon case in which it is indicated that the claim in the grievance was not independent of the collective agreement and was not proper as a civil action. In the Nackawic case, the concern of the Court was whether the dispute arose under the terms of a collective agreement and if so, it directed that the jurisdiction to deal with such dispute is that of the Board of Arbitration constituted pursuant to the terms of the collective agreement between these parties. It was noted in the Pilon case that: “in the absence of the Group Insurance scheme established by Art. 30 of the agreement, the appellant has no claim to such benefits whatsoever…” and went on to find that the dispute arose under the collective agreement and that “the grievance and arbitration mechanisms contained therein should govern the resolution of this conflict”. The claim for the payment of a penile implant for the retired employee could only arise through the application of the insurance plan provided through the terms of the collective agreement under which the retiree has continued his eligibility by payment to continue his post retirement coverage as allowed in Article 19.02 for Extended Health. It must be noted that at this point of the dispute, it is not whether the claim in the grievance has validity but whether the Board has the jurisdiction to consider the Union’s claim in this grievance whatever its merits. There is no dispute concerning the fact that the Extended Health Plan does not include a penile implant as a benefit and it is on that basis that the Insurer rejected the claim for payment of the cost of the implant of $1,200.00. The submission of the Union is that the failure to provide this type of benefit is discriminatory and contrary to the Human Rights Code and Article 4.01 of the collective agreement. The Board does have the authority to consider and apply the terms of the Code, as well as the interpretation of application of Article 4.01 A of the collective agreement: “The parties agree that, in accordance with the provision of the Ontario Human Rights Code, there shall be no discrimination or harassment against any employee by the Union or the Colleges, by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap.” It is a novel submission that these rights and obligations including discrimination by reasons of sex, age or handicap are connected so as to find a requirement to provide retroactively a benefit not contemplated when the Extended Health Plan was entered into as required by Article 19 of the collective agreement but the device claimed is a relatively new application for males that could have along with any other prosthesis been added as a benefit. Again, the Board is not determining in this decision whether that was a requirement of the parties or of the Insurer to include such a device as an insured benefit. It is only whether the Board can give consideration to that issue which arises from the grievance launched by the Union. Following the ratio of the Pilon decision and the cases referred to therein, we must conclude that the issue raised by the grievance is not independent of the collective agreement but referrable to its terms and could only be properly determined through the grievance and arbitration process. This is not, in our view, an issue which falls within the traditional arbitral practice of declining jurisdiction to determine benefit claims which could be taken directly to the insurer through Court action. The direction of the Courts is now that matters which arise through terms of insurance provided by requirements of a collective agreement are properly the jurisdiction of the arbitration board constituted under the terms of the collective agreement to deal with such disputes. That broad direction in the Pilon decision applies and persuades this Board that in these particular circumstances, the grievance is arbitrable and it has the jurisdiction to deal with the merits of the grievance Re Corporation of the City of Hamilton and CUPE, 66 th L.A.C.(4)129 (Beck). In this proceeding, it is not whether there is a remedial action which can be taken against the Insurer as the thrust of the alleged application of the no discrimination policy and the Human Rights Code referred to in Article 4.01 A would bring into harmony the remedy requested against the Employer to arrange an insurance plan which would not discriminate against an employee or a former employee whose rights for consideration in this context arise under Article 19.02. That is not a remedy if available, enforceable through Court action but must be determined in the application of a term of the collective agreement as well as legislation which the Board has the power to apply pursuant to Section 48(12) of the Labour Relations Act. It is neither then an action solely against the Insurer for payment which would lie outside of the terms of the collective agreement or is it necessary as in the Mitchnick award to add the Insurer as a party to these proceedings which in any event has not been requested by the parties. Whether the Extended Health Plan should have included both male and female treatments applicable to each sex is a matter arising from the arrangements for the insurance policy made by the Employer and arises as an issue within the application of the terms of the collective agreement. In this regard, the facts in this case differ from the awards dealing with long-term disability benefit claims and in our opinion, is an issue which is appropriately swept into the generalization of the Pilon decision that such matters arising under the terms of the collective agreement, the jurisdiction remains with the Board of Arbitration to make a determination on the merits of the grievance by which there is a right to a hearing of the issue. For all of these reasons, the Board finds that the grievance is arbitrable under the terms of the collective agreement and that it has jurisdiction in this matter. It is our award, therefore that the objection of the Employer is dismissed. The hearing will be continued at a date to be arranged by the Board with the parties. DATED AT OAKVILLE THIS DAY OF JUNE, 1998. HOWARD D. BROWN, CHAIR JACQUELINE CAMPBELL, COLLEGE NOMINEE MICHAEL SULLIVAN, UNION NOMINEE