HomeMy WebLinkAboutUnion 98-02-20IN THE MATTER OF AN ARBITRATION
BETWEEN:
SENECA COLLEGE
(Hereinafter referred to as the College)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF A UNION GRIEVANCE (OPSEU FILE 97D545)
BOARD OF ARBITRATION: Gail Brent
Peter Hetz, College Nominee
P. Munt-Madill, Union Nominee
APPEARANCES:
FOR THE COLLEGE: Stephen J. Shamie, Counsel
Samara Kaplan, Student-at-Law
Mel Fogel, Director Employee Relations
FOR THE UNION: George A. Richards, Sr. Grievance Officer
Ted Montgomery, President Local 560
L. Olivo, Vice-President Local 560
Hearing held in Toronto, Ontario on February 20, 1998
DECISION
The grievance (Ex. 1) is a Union grievance dated November 20, 1996 and alleges that the
College has violated the collective agreement by improperly designating assignments in the English
Language Institute. By agreement of the parties this decision will deal only with the preliminary
objection raised by the College.
The parties elected to call no witnesses. All facts were agreed to by the parties and stated to
us by counsel. The exhibits indicate the following:
x
the step one meeting was held on December 3, 1996 (Ex. 2);
x
the College’s written response is dated December 18, 1996 (Ex. 2);
x
the Union’s memo dated January 6, 1997 directed to the College President stated that
his designee’s reply was not satisfactory and referred the matter to arbitration (Exs. 3
& 7);
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x
the Union’s January 6 memorandum was received in the President’s office on January
10, 1997 and in the Employee Relations office on January 14, 1997 (Ex. 7);
x
on February 5, 1997 the College wrote to the Union (Ex. 4) informing it that it had failed
to refer the matter to the President at Step 2 within the “mandatory time limits set out
at Step Two of the Grievance Procedure” and that it was taking the position that the
grievance was inarbitrable; and
x
by letter dated April 21, 1997 (Ex. 5) the Union central office notified the College that
it was referring the matter to arbitration because the reply was unsatisfactory.
The parties also informed us that the following facts were agreed to:
x
since Exhibit 4 was sent to the Union it has made no attempt to revoke the referral to
arbitration and schedule a Step Two meeting;
x
since Exhibit 4 was sent to the Union it has made to attempt to schedule a Step Two
meeting after the referral;
x
on November 22, 1996 Denise Chan, the College’s Manager of Employee Relations,
called Ted Montgomery, the Union Local President, and left a message that the College
was prepared to meet on November 22, 1996 for a Step One grievance meeting and
asked Montgomery to call back to confirm the meeting;
x
on November 27, 1996, because Montgomery had not called back, Chan spoke to him
and the parties agreed to meet on December 3, 1996 to discuss this grievance and two
others;
x
on January 14, 1997 Chan called Montgomery, advised him that the grievance had only
been heard at Step One, and asked him whether he would like to send a memo to amend
his memo of January 6, 1997 (Ex. 3); and
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x
Montgomery does not recall the January 14 telephone call but, assuming that it
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occurred, he would have seen little point in amending the memo of January 6 (Ex. 3)
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because the time limits for referral to Step Two would have expired on January 10 and
he was aware that the College regularly enforced the time limits.
In short it was the College’s primary position that the matter is inarbitrable because the
mandatory time limits have not been followed and therefore, pursuant to Article 32.05A it is
abandoned. The College submitted that the grievance procedure set out in the collective agreement
as it relates to Union grievances mandates that the grievance will proceed to Step Two if the Step
One response is unacceptable to the Union, and that since there was never a referral to Step Two,
pursuant to Article 32.03 the grievance must be deemed to be abandoned. In the alternative the
College argued that the grievance is not arbitrable because the mandatory grievance procedure has
not been exhausted before the referral to arbitration.
In summary the Union argued that the grievance procedure is directory rather than mandatory
and that the penalty provision of Article 32.05A does not apply in a situation where the steps in the
grievance procedure have been taken out of sequence mistakenly. It also argued that the Union met
the literal requirements of the grievance procedure by informing the College President that it was not
satisfied with the Step One reply within the time limits for referral to Step Two, making it incumbent
on the College to set up a Step Two meeting. The Union further argued that if the grievance
procedure is mandatory, then the College should be taken to have waived its rights by its delaying its
th th
response to the Union’s memo of January 6 (Ex. 3) until February 5 (Ex. 4). The Union urged us
Colleges Collective Bargaining Act
to interpret the as conferring upon us the jurisdiction to resolve
differences between the parties notwithstanding the provisions of the collective agreement. The
Union asked us to find that this was a procedural flaw rather than a failure to meet time limits and that
the grievance is still arbitrable and should be referred back to Step Two of the grievance procedure.
Colleges Collective Bargaining Act
In addition to the , R.S.O. 1990, c. C. 15 (hereinafter
Seneca College of
referred to as the Act) the parties also referred us to the following authorities:
Applied Arts and Technology and Ontario Public Service Employees’ Union
, (1984) unreported
Algonquin College and Ontario Public Service Employees’ Union
(Brent);, (1984) unreported
Ontario Council of Regents for the Colleges of Applied Arts and Technology in the Form
(Brent);
of Cambrian College and Ontario Public Service Employees Union
, (1996) unreported (McLaren);
Cambrian College and Ontario Public Service Employees Union
, (1997) unreported (Devlin);
Union Carbide Canada Ltd. v. Weiler et al. OPSEU (Klassen)
(1968), 70 D.L.R.(2d) 333 (C.S.C.);
and The Crown in Right of Ontario (Ministry of Education)
, (1989) unreported (GSB 1609/87 &
OPSEU (Walter Myszko) and The Crown in Right of Ontario (Ministry of Health)
1297/88);,
OPSEU (Taylor-Baptiste) and The Crown in Right of Ontario
(1988) unreported (GSB 2511/87);
(Ministry of Correctional Services)
, (1990) unreported (GSB 440/89, 441/89 & 442/89);
Re Canada Post Corp. and Canadian Union of Postal Workers (McGrogan 710-88-70164)
(1991),
Re Ottawa General Hospital and Ontario Nurses’
22 L.A.C.(4th) 430 (T. A. B. Jolliffe, Canada);
Association Procedural Irregularities in Grievance
(1992), 27 L.A.C.(4th) 359 (Carter); and
Arbitration
(1974), 20 McGill Law Journal 378 (Beatty).
The parties also referred to the following provisions in the collective agreement (Ex. 6):
32.03
Failing settlement of a complaint it shall be taken up as a grievance (if it falls within
the definition under 32 12 C) in the following manner and sequence provided it is presented
within seven days of the immediate supervisor’s reply to the complaint. 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 it to the next Step. Similarly, the
College’s written decisions at each step shall contain reasons supporting the decision.
Step One
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. The immediate supervisor shall arrange a meeting within seven days of the
receipt of the grievance at which the employee, a Union Steward designated by the Union
Local, if the Union Local so requests, the Dean of the division and the immediate supervisor
shall attend and discuss the grievance. The immediate supervisor and Dean will give the
grievor and the Union Steward their decision in writing within seven days following the
meeting. If the grievor is not satisfied with the decision of the immediate supervisor and Dean,
the grievor shall present the grievance in writing at Step Two within 15 days of the day the
grievor received such decision.
Step Two
The grievor shall present the grievance to the College President.
The College President or the President’s designee shall convene a meeting concerning the
grievance, at which the grievor shall have an opportunity to be present, within 20 days of the
presentation and shall give the grievor and a Union Steward designated by the Union Local the
President’s decision in writing within 15 days following the meeting. In addition to the Union
Steward a representative designated by the Union Local shall be present at the meeting if
requested by the employee, the Union Local or the College. The College President or the
President’s designee may have such persons or counsel attend as the College President or the
President’s designee deems necessary.
In the event that any difference arising from the interpretation, application, administration or
alleged contravention of this Agreement has not been satisfactorily settled under the foregoing
Grievance Procedure the matter shall then, by notice in writing given to the other party within
15 days of the date of receipt by the grievor of the decision of the College official at Step Two,
be referred to arbitration.
32.04 D
The arbitration board shall not be authorized to alter, modify or amend any part of
the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with
any matter that is not a proper matter for grievance under this Agreement.
32.05 A
If the grievor fails to act within the time limits set out at any Complaint or
Grievance Step the grievance will be considered abandoned.
32.05 B
If an official fails to reply to a grievance within the time limits set out at any
Complaint or Grievance Step, the grievor may submit the grievance to the next Step of the
grievance procedure.
32.05 C
At any Complaint or Grievance Step of the grievance procedure, the time limits
imposed upon either party may be extended by mutual agreement.
32.05 D
The time limits set out at the complaint or Grievance Steps including the referral
to arbitration shall be calculated by excluding the period from Christmas Day to New Year’s
Day inclusive.
32.10
The Union or the Union Local shall have the right to file a grievance based on a
difference directly with the College arising out of the Agreement concerning the interpretation,
application, administration or alleged contravention of the Agreement. Such grievance shall
not include any matter upon which an employee would be personally entitled to grieve and the
regular grievance procedure for personal or group grievance shall not be by-passed except
where the Union establishes that the employee has not grieved an unreasonable standard that
is patently in violation of the Agreement and that adversely affects the rights of employees.
Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or
a Union Local President to the Director of Personnel or as designated by the College within
20 days following the expiration of the 20 days from the occurrence or origination of the
circumstances giving rise to the grievance commencing at Step One of the Grievance
procedure.
In reaching our decision we have considered only the facts related to us, the authorities cited,
the collective agreement and the submissions of the parties. It is our view that the first matter to be
determined is whether this matter should be classified as a failure to meet time limits or as a failure
to follow the grievance procedure steps.
The three cases decided by the Grievance Settlement Board all appear to give the impression
that cases of this sort should be considered to be cases where there has been a failure to follow the
steps of the grievance procedure in the proper order rather than cases where there has been a failure
to comply with mandatory time limits. However, on closer reading that does not appear to be the
Myszko
position taken by that body. The case (supra) was a situation where all of the steps of the
grievance procedure were followed, even in the face of a premature referral to arbitration which
occurred prior to the Step Two meeting. The evidence presented to the Grievance Settlement Board,
as outlined on pages 2 through 7 inclusive disclosed the following:
st
x
the grievance was received by the supervisor on February 1 and responded to on
th
February 8;
th
x
the Step Two referral was dated February 9 and received by the Deputy Minister on
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February 15;
x
the collective agreement required the Deputy Minister to hold a meeting with the
employee within 15 days of the receipt of the referral and to give a written decision
within 7 days of the meeting;
th
x
on February 29, prior to the Step Two meeting, the Union referred the matter to the
Grievance Settlement Board for arbitration;
x
the collective agreement provided that if the Step Two reply was not satisfactory to the
grievor or if it was not received within the time limits he could apply to the Grievance
Settlement Board within 15 days of receiving the decision or within 15 days of the expiry
of the time that the decision should have been received;
x
the time limits in the collective agreement were mandatory and the Grievance Settlement
Board lacked jurisdiction to extend them;
x
for a variety of reasons the employer did not contact the union for a Step Two meeting
st
until early in March and the parties agreed to hold that meeting on March 21;
st
x
the Step Two meeting was held on March 21 and the employer raised a timeliness
objection, but it would appear that nothing explicit was said about the meeting
proceeding on a without prejudice basis; and
x
the employer’s Step Two reply did not refer to the timeliness issue.
The Grievance Settlement Board found that “on the evidence adduced” there had been a procedural
irregularity in the request for a hearing prior to the expiration of the time limits contained in Article
27.3.3" (page 7). Article 27.3.3, as reproduced at page 3 of the award, reads as follows:
The Deputy Minister or his designee shall hold a meeting with the employee within fifteen (15)
days of the receipt of the grievance and shall give the grievor his decision in writing within
seven (7) days of the meeting.
The timeliness objection the employer was relying on was not based on any failure by the union
to refer the grievance to Stage Two in a timely fashion, since that was done, but on the union’s
referral to arbitration before the time expired for the holding of the Step Two meeting. On those facts
neither the employer nor the union was deprived of rights under the grievance procedure.
Klassen
also involved a case before the Grievance Settlement Board in which the reference to
arbitration was made prior to the second stage grievance meeting taking place, but the second stage
meeting did occur (see page 4). Thus the Grievance Settlement Board was able to hold that the
premature reference was held in abeyance pending the decision at the second step and was conditional
upon the second step reply not being satisfactory. Again neither party was deprived of any rights
under the grievance procedure.
Taylor-Baptiste
involved a situation where the Ministry unilaterally set the date for the second
step meeting, a date which was not acceptable to the grievor. When the grievor did not attend, the
Ministry took the position that the grievance had been withdrawn. The Grievance Settlement Board
ordered the parties to convene a second step meeting.
In the first two of the Grievance Settlement Board cases the grievance procedure was complied
with; the reference to arbitration was just made prematurely due to a mistake. In the last case the
employer may be said to have attempted to frustrate the procedure.
The case before us is a different sort of situation. No Step Two meeting ever occurred despite
the College’s notice to the Union that the grievance had been prematurely referred to arbitration and
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its invitation to the Union to amend its memo of January 6. Prior to learning of this telephone call
counsel for the Union asserted to us that in the name of good labour relations the College should have
acted to notify the Union of its error and that this whole matter could have been cleared up if it had.
Yet, we were told that even though it is not denied that the College did notify the Union of the error
in a timely fashion the Union did nothing to correct the error because the College had always insisted
on strict time limits in the past. These parties are not neophytes when it comes to processing
grievances. It is difficult to conclude that neither party believed that taking the College at its word
would have made it virtually impossible for the College to assert that it had not made a de facto
agreement to extend time limits.
The time limits in this collective agreement have long been found to be mandatory, and there
is no doubt that a board of arbitration lacks the jurisdiction to extend time limits. Neither the Act nor
the collective agreement has been found to confer such power on us. While Professor Beatty’s article
is an interesting academic exercise, and while it is difficult not to sympathize with the proposition that
technical objections based on procedural irregularities ought not to stand in the way of hearing the
merits, we cannot ignore the fact that even though the Act contains provisions such as s.84, it also
specifically does not confer upon a board of arbitration the jurisdiction to extend time limits or to take
away substantive rights. Moreover that statutory provision must be interpreted in the context of a
regime where the parties have specifically agreed in their collective agreement that grievances will
be deemed to be abandoned if time limits are missed, and have also agreed that boards of arbitration
will not have the power to alter or amend the collective agreement. Hence it would appear that the
Union Carbide,
purpose of s. 84 of the Act is, to cite the Supreme Court of Canada in to prevent the
courts from quashing decisions of labour tribunals because of defects of form or technical
irregularities.
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Were it not for the College’s notice to the Union on January 14 then this case might be seen
Ottawa General
to be on all fours with and it might be possible to characterize this as a missed step
in the grievance procedure. However, the College put the Union on timely notice that a step in the
grievance procedure had been missed. The Union chose to do nothing about it. The reasonable thing
to do would have been to accept the College’s invitation to amend and to proceed to Step Two. The
Union’s silence and its failure to act does in our view make this a situation where there has been a
failure to comply with mandatory time limits rather than a missed step in the grievance procedure.
Under the collective agreement the College has the right to consider that this grievance was
abandoned and this board of arbitration lacks the jurisdiction to proceed further.
For all the reasons set out above, the grievance is dismissed.
DATED AT LONDON, ONTARIO THIS DAY OF , 1998.
____________________________
Gail Brent
I concur / dissent____________________________
P. Hetz, College Nominee
I concur / dissent____________________________
P. Munt-Madill, Union Nominee