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HomeMy WebLinkAboutUnion 01-04-20IN THE MATTER OF a union grievance AND IN THE MATTER OF the arbitration of the grievance BETWEEN: George Brown College of Applied Arts and Technology - and- Ontario Public Service Employees Union PLACE & DATE OF HEARING: Toronto, Ontario, March 27, 2001 BOARD OF ARBITRATION: Sherril Murray Rene St. Onge Stanley Schiff, chairman APPEARANCES FOR THE EMPLOYER: David Ivany, employee relations Carla Zabec, counsel APPEARANCES FOR THE UNION: Tom Tomassi, local union president Robin Gordon, grievance officer and counsel AWARD AND REASONS ON PREUMINARY OBJECTION issued April 20, 2001 The Collecje objc~..,t~ that the ~lricvancc is moot and we ehould therefore not en- tertain the merits. The union says that, since all issues have not been resolved, the dis- pute between the parties is alive and should be determined. For the purpose of the objection, the parties have agreed on a statement of facts. In May, 2000, Paul Carder, the Dean of the Business and Creative Arts Faculty, announced at a meeting of the Faculty that he was creating what he called The Dean's Award for Teaching Excellence. Printed sheets he distributed set out the skeleton of the proposal: student nominations for awards to a number of professors based on "selected criteria"; "three categories" of nominations and awards -- "Business", "Graphic Com- munications'' and "FCT/PA/GAS"; selection of winners by an "independent panel of 'experts' "; $1000 for the winning professor in each category; $5000 "Dean's Award sel- ected from the category winners". Carder said that he was personally tuncling the awards. Neither Carder nor anyone else in the College's administration consulted the union before the announcement was made. The union put in the tormal grievance, alleging that the College violated Art. I of the collective agreement by "entering into agreements that result in monetary compen- sation over anti above ~[at] prescribed and set forth by Article 14." In Art. 1 the union "is recognized as the exclusive bargaining agent" for all teachers at the College, subject to stated exceptions. Art. 14 sets the salary scales for the various categories of teach- ers. As the remedy the grievance demands "that the College immediately withdraw this proposal." As far as the agreed facts go, the College rejected the grievance on two grounds: first, the proposed awards are recognition of merit and not extra compensa- tion beyond the salaries set in Art. 14, and second, since the collective agreement does not mention awards for merit, they are "permissible under Article 6", the Management's Right~ clause. Before the grievance got to the hearing stage, the Dean's Award proposal was withdrawn without being implemented. It was replaced by what is called the GBC Foun- dation Crystal Apple Awards "established", as the printed announcement says, by the GBS Foundation which itself was "established in 2001 to celebrate teaching excellence at the College". Students will nominate professors who "ha[vel made the most meaning- ful difference in [their] learning experience at George Brown [College]." A panel of "edu-- cational professionals from outside the College" chosen by the Foundation will select the winners. The Crystal Apple Award and $5000 will go to a professor "for the highest teaching excellence". $2000 Division Awards will go to professors in "the remaining three Faculties". And nine $500 awards will go to one professor in each of the Schools. As the announcement says, Paul Carder is personally funding these awards. The union has put in a separate grievance against the Crystal Apple Awards. The parties have not filed a copy nor told us what is the substance. Nonetheless we cannot think the union left out an allegation of Art. 1 violation substantially the same as that before us. If the disappearance of the Dean's Award got rid of the parties' dispute so that there is no live controversy left, we should say that the grievance is moot and refuse to hear it. That is what the Supreme Court held in Borowski v. Att.- Gen. Canada (1989), 57 D.L.R. (4th) 231,239, and many arbitrators nave actoptea tbs court's language the collective bargaining context. For a recent example, see Re Stelco Inc. and Steel- wooers (1999), 78 L.A.C. (4th) 118, 124 (P.C. Picher, arbitrator). We see good reason for arbitrators to exercise caution before declaring griev- ances moot when the material facts have changed. In the ordinary run of court litiga- tion, an individual dispute is a one-shot affair between parties whose relationship ends with the termination of the lawsuit. Not so in grievance arbitration. The parties to a col- lective agreement must continue to work together no matter how a grievor's particular complaint is resolved. A systemic issue an individual grievance raises does not disap- pear just because the circumstances underlying it disappear. There may still be a con- tinuing dispute a mootness ruling will stop from getting determined by arbitration. The policy of "concern for judidal economy [,]...the need to ration scarce judicial resources among competing claims" as an important rationale of the court's mootness doctrine, Borowski at 244-45, must be accommodated with the statutory policy to get issues un- der collective agreements settled by arbitration and not by resort to industrial action. See Re Sherbrooke Community Society and Sask. Nurses Union (1981), 2 L.A.C. (3d) 97, 104 (Norman, chairman). Although the Dean'~ Award propocal i¢ gone, the College haa not conceded the union's allegation that the awards under it would violate Art. 1. Since a live controversy about that remains, we should not see the grievance as moot We find support in, for example, Re Durham Region Roman Catholic Separate School Bd. and CUPE (1991), 19 L.A.C. (4th) 72, 74-75 (Brandt, chairman); Re Windsor Roman Catholic Separate School Bd and SEIU (1994), 45 L.A.C. (4th) 149, 153 (Jcl lille, chairman); and Re Co/on- iai Furniture (Ottawa) Ltd. and Retail Wholesale Union (1995), 47 L.A.C. (4th) 165, 174 (Lavery, arbitrator). In Durham and Windsor, the facts underlying the grievance changed materially before the hearing but the employer refused to concede that it had violated the agreement under the facts as they had been. In Colonial, although the employer conceded in mid-hearing that it had violated the agreement, it did not agree that the arbitrator might give a remedy nor that it would avoid the offensive conduct in the future. In all of them, the arbitrators said that, because the issues on which there was no con- cession remained alive, the respective grievances were not moot. ~n S~e/co, relie(~ on by the Co~ege, the arbitrator was concernea a~most entire~y with a prematurity objection and ultimately dismissed the grievance on that ground. No such objection was made before us. In addition, the facts in Stelco the College argues are important for mootness are materially different from what we have. The employer there, faced with a grievance against a proposed schedule change, withdrew the pro- posal. The employer then promised not to implement any change while negotiating with the union on the matter and, failing agreement, at least until a year had elapsed. The union got what it wanted, said the arbitrator, with no certain prospect of future repetition of unilateral action. Before us there is, to the contrary, more than a certain prospect of future repetition. We may agree, as the College argued, that nothing before us suggests that Car- der or another dean will set up another Dean's Award in the foreseeable future. NOne- theless, at least in the union's view, repetition has already happened. While the Dean's Award proposal has been withdrawn, the scheme for the Crystal Apple Awards has re- placed it. These awards are substantially similar in form and content to those of the Dean's Award and are, as before, funded by Carder. There are, we see, minor differ- ences. The number of awards and the total amount of money to be given out have in- creased. As well the possible recipients now include professors from every College div- ision, But the only significant difference is that Carder himself founded the Dean's Award while the GBC Foundation, established long after the grievance went in, claims responsibility for the Crystal Apple Awards. That, we think, is not enough to persuade us the issue of alleged Art. 1 violation raised in the grievance is dead. We turn to reasons for our going ahead even if the grievance is otherwise moot. As the Supreme Court said in Borowski at 245, a determination may be made despite mootness if it will have a practical effect on the parties' rights. Here, our deciding wheth- er the Dean's Award violated Art. 1 will be important, perhaps decisive, in the future det- ermination Of the Crystal Apple grievance. We think too that our authority may rest on another ground the court confirmed in Borowski, fairly adjusted for application in the col- lective bargaining context. The grievance raises an issue of general importance in the labour relations community - or at least in that large branch of the community involved in education at all levels -- and resolution of the issue is in the community's interest. Id. at 245-46. As we see it with only the agreed facts before us, the issue may be put in several ways. It might be put like this: when, without the union's consent, the employer or someone associated with the employer grants monetary merit awards to bargaining unit employees in addition to negotiated wages or salaries for performing job duties, does the employer violate the collective agreement recognition clause? Or this way: when, with the employer's but not the union's consent, the grantor is a third person, does the employer violate the recognition clause? We can contemplate that these form- ulations will have to be modified in light of the evidence and argument we hear later. At the hearing, on the merits, having earlier got withdrawal of the Dean's Award, the union will want our declaration that, in the circumstances of the creation and funding of the Dean's Award, the College violated Art. 1. As we have said, a declaration on the matter one way or the other will help determination of the Crystal Apple grievance. Help- fulness in settling the real dispute of the parties-litigant is what warrants a judge's exer- cising discretion to give a declaratory remedy. So confirmed the Supreme Court in Sol- osky v. The Queen (1979), 105 D.L.R. (3d) 745. In the collective bargaining context, we also see situations where arbitrators have given declarations of right when the employ- er had conceded the relief requested but not the merits of the grievance. As an ex- ample, see Durham at 76, quoting and fOllOwing Re Int'l Nicl(el Co. and Steelworkers (1972), 24 L.A.C. 5] (Weiler, chairman). At the least, [hat situation seems pretty close to what we have before us. We dismiss the objection. We shall proceed to hear the grievance on the merits and issue our declaration accordingly. ISSUED at Toronto this 20th day of April, 2001. " S~erril Murray