HomeMy WebLinkAboutDanielson 93-06-18 College
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Ontario Public Service Employees Union, Union.
BEFORE: Michael Bendel, Chair
Andrew Shields, College Nominee
Terry Kearney, Union Nominee
APPEARANCES: For the Union:
Michael Lynk, Counsel
Mary Lou Annable, Chief Steward, Local 415
Jack Wilson, Secretary, Local 415
Anna Danielson, grievor
For the College:
Ann E. Burke, Counsel
Zonya Johnstone, Director, Human Resources
Heard in Ottawa, Ontario, on March 11 and May 3, 1993.
INTERIM ARBITRAL AWARD
I
The grievance of Anna Danielson challenges the College's
decision not to renew her contract as a partial-load professor in
the Quantitative Studies Department.
The College's decision, which was conveyed to the grievor
orally at a meeting, was confirmed on June 29, 1992, in a letter
from the Chairperson of the Department, which reads, in part, as
follows:
Further to our meeting on Friday, June 26, 1992, I would
like to inform you that I am unable to renew your
contract as a partial-load professor for September 1992
because of financial constraints. I want to reiterate
that this decision is certainly no reflection of your
teaching ability; it is a financial decision which I
discussed at our meeting.
If there is any change in the current status, I'll be in
contact with you.
The grievor responded on June 30 with a grievance. The grievance
is drafted as follows:
Statement of grievance
I have been terminated as a partial-load employee
notwithstanding my seniority within the department. The
reason for termination is economic, not related to my
performance. The College has failed to uphold the
principle of seniority even though the Collective
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Agreement recognizes the seniority rights enjoyed by a
partial-load employee particularly but not exclusively
under Articles 8.05 and 8.07.
Settlement Desired
Re-instatement of my status as a partial-load teacher
without loss of seniority retroactive to September 1992.
A few days before the hearing was scheduled to start,
counsel for the Union caused a summons to be issued and served on
an official of the College's Human Resources Department, whereby
the official was required to testify at the hearing and to bring
with her the following documents:
A list of all partial-load teachers employed by Algonquin
College in the following semesters: January to April
1990, summer 1990, September to December 1990, January
to April 1991, summer 1991, September to December 1991,
January to April 1992, summer 1992, September to December
1992, January to April 1993, together with each teacher's
gender, each teacher's pay rate as of that semester, each
teacher's classification level, and.each teacher's start
year of instruction at Algonquin College.
In advance of the hearing, counsel for the'College gave
notice that she would seek to quash this summons on the basis that
the information requested was not relevant to the grievance and
that the union was engaged in a fishing expedition. As a result,
the hearing so far has been limited to evidence and submissions on
the propriety of the summons.
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II
The theory of the union's case, as it appeared from the
submissions of counsel and from the evidence of Jack Wilson,
secretary of the local union, can be summarized as follows. The
union believes that the College's decision not to renew the
grievor's contract flows directly from the implementation of the
Pay Equity Act, R.S.O. 1990, c. P.7. As a result of this legisla-
tion, the rate of pay of the grievor, and of other partial-load
professors with several years of seniority, has been significantly
increased. The College, it is alleged, has responded by not
renewing the contracts of female partial-load professors with
several years of seniority. Male professors in this category, on
the other hand, even if highly paid, have had their contracts
renewed. According to counsel, the grievor was offered a new
contract for September 1992 if she accepted a lower rate of pay,
an offer she refused. Although the College would enjoy the same
savings by not renewing the contracts of similarly situated male
professors, its targeting of the female professors, according to
the union, likely flows from a stereotypical belief that women do
not have the same income needs as men.
The union's belief that the College has been acting in
this way is supported (it is alleged) by its own investigations and
by the incomplete and imprecise data supplied by the College
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pursuant to the collective agreement. However, the union, according
to counsel, needs accurate data from the College to prove its case.
The pattern of. conduct complained of, which led to the non-renewal
of the grievor's contract, would, according to counsel, be a
violation of Article 27.01 (a) of the collective agreement, which
reads as follows:
NO DISCRIMINATION
27.01 (a) The parties agree that, in accordance with
the provisions of the Ontario Human Rights Code, there
shall be no discrimination against any employee by'the
Union or the Colleges, by reason of race, creed, colour,
age, sex, marital status, nationality, ancestry or place
of origin.
Counsel for the College advanced several reasons for
setting aside the summons.
Firstly, counsel contends that the union's theory about
discrimination on the basiS of sex is not alluded to in the
grievance as pre°sented to the College. There were no meetings
concerning this grievance between the union and the College before
it was referred to arbitration; and so its scope could not have
been expanded beyond what was contained on the grievance document.
The grievance alleges a denial of the grievor's seniority rights
under the collective agreement, not a violation of Article 27. The
union, it is argued, cannot amend the grievance in this way. The
collective agreement requires that the "reasons supporting the
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grievance...be set out in the grievance and on the document
referring it to the next step" (Article 11.03) and that it set
forth "the nature of the grievance, the surrounding circumstances
and the remedy sought" (ibid.). The new allegation of discrimina-
tion would change the nature of the grievance. This amounted to
the presentation of a new grievance after the expiration of the
mandatory time-limits set by the collective agreement. Moreover,
an allegation of discrimination should always be put forward in a
grievance with great particularity so that the employer can know
the case it has to meet. Since the grievance, properly construed,
does not allege discrimination, the data requested by the union are
not relevant to the grievance. In the course of her submissions on
this point, counsel referred to the following authorities: Re
United Steelworkers and TMX Watches of Canada Ltd. (1970), 22
L.A.C. 92 (Schiff); Re Atlas Steels and Canadian Steelworkers
Union, Atlas Division (1978), 18 L.A.C. (2d) 363 (Weatherill); and
Re Algonquin College and Ontario Public Service Employees Union
(unreported award of arbitrator Samuels, dated March 18, 1988).
Counsel for the College also argued that the union, by
diligent investigation, could have found out all the information
requested in the summons; that the summons was overly broad and
amounted to a fishing expedition; and that the summons would
require the College to examine over 1,000 documents and to create
new documents, since the list requested did not exist. Moreover,
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the grievance essentially alleged a violation of the Pay Equity
Act, which it was beyond the jurisdiction of the arbitration board
to remedy and which, in any event, had already been made the
subject of a complaint to the Pay Equity Tribunal by the union.
Counsel for the union replied to all of these arguments.
As regards the scope of the grievance presented by the
grievor, counsel suggested there were two ways of looking at the
union's allegation of discrimination. In the first place, counsel
maintained that Mr. Wilson, who drafted the grievance for the
grievor, had intended, according to his evidence, to allude to this
allegation of discrimination in his use of the word "economic" in
the statement of grievance. Mr. Wilson, according to the evidence,
drafted the grievance before the grievor had received the letter
of June 29 from the College. His use of the word "economic" was
therefore not in response to the letter. In the alternative, the
union's allegation of discrimination could be regarded as the
formulation of a new argument in support of the contention that the
non-renewal of the grievor's contract was in violation of the
collective agreement. The role of a board of arbitration was to
resolve the real issue in dispute between the parties. The collec-
tive agreement provisions relied on by the College did not preclude
new arguments being advanced for the first time at arbitration.
Moreover, the collective agreement provisions were directory and
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not mandatory. In addition, section 84 (2) of the Colleges Collec-
tive Bargaining Act, R.S.O. 1990, c. C.15, empowered a board of
arbitration to cure defects of form or technical irregularities.
Counsel referred, in the course of these submissions, to: Re United
Electrical Workers, Local 504, and Canadian Westinghouse Co. Ltd.
(1964), 14 L.A.C. 279 (Reville); Blouin Drywall Contractors Limited
v. United Brotherhood of Carpenters and Joiners of America, Local
2486 (1975), 75 CLLC para. 14,295 (Ontario Court of Appeal); Re
Bell Canada, supra; Re Liquid Carbonic Inc. and United Steelworkers
(1992), 25 L.A.C. (4th) 144 (Stanley); and Re Steel Co. of Canada
Ltd. (Swansea Works) and United Steelworkers, Local 3767 (1976),
12 L.A.C. (2d) 245 (O'Shea).
Counsel for the union also maintained that the union
could not reasonably have acquired, by its own efforts, the data
it sought. It had conducted its own diligent investigations, as
shown by Mr. Wilson's evidence, but it now needed the summons to
complete the information it required to support its case. Counsel
also contended that the board of arbitration has the authority, in
an appropriate situation, to remedy a violation of the Pay Equity
Act. However, the argument it wished to present to the board was
that there had been a violation of the collective agreement by the
College.
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III
Various provisions of the collective agreement were
referred to in argument on the question of the scope of the
grievance. They are as follows:
Article 11
GRIEVANCE PROCEDURES
11.O2 Complaints
It is the mutual desire of the parties hereto that
complaints of employees be adjusted as quickly as
possible and it is understood that if an employee has a
complaint, the employee shall discuss it with the
employee's immediate Supervisor within twenty (20) days
after the circumstances giving rise to the complaint have
occurred or have come or ought reasonably to have come
to the attention of the employee in order to give the
immediate Supervisor an opportunity of adjusting the
complaint...
11.O3 Grievances
Failing settlement of a complaint, it shall be taken
up as a grievance (if it falls within the definition
under Article 11.12 (c) in the following manner and
sequence provided it is presented within seven (7) 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 written
decisions at each step shall contain reasons supporting
the decision.
Step No. 1
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...
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11.04
(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.
11.05 General
(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.
eeo
We heard argument on whether various procedural require-
ments set out in the agreement were "mandatory" or "directory", but
we do not believe it is necessary for us to express any opinion on
this matter.
In Blouin Drywall Contractors Limited, supra, the Ontario
Court of Appeal commented on the approach to be taken by a board
of arbitration to the interpretation of a grievance. In passages
which have been cited on numerous occasions, the Court said the
following (at pages 15,354-5):
No doubt it is the practice that grievances be submitted
in writing and that the dispute be clearly stated, but
these cases should not be won or lost on the technicality
of form, rather on the merits and as provided in the
contract and so the dispute may be finally and fairly
resolved with simplicity and dispatch.
...Certainly, the board is bound by the grievance before
it but the grievance should be liberally construed s~
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that the real complaint is dealt with and the appropriate
remedy provided to give effect to the agreement provi-
sions...
As is apparent from this statement, there are several
factors that a board of arbitration has to consider in deciding
whether a grievance should be interpreted as including a particular
allegation.
On the one hand, the board of arbitration "is bound by
the grievance before it". The grievance, as referred to arbitra-
tion, establishes the parameters of the arbitrator's jurisdiction.
Arbitrators have also often observed that it is in the interests
of all concerned that grievances be thoroughly aired during the
grievance process before being referred to arbitration, and that
this requires that the grievance be articulated, either on the
grievance document or at meetings during the grievance process,
with some particularity.
On the other hand, the board of arbitration should not
be overly concerned with technicalities, but should endeavour to
resolve the real issue in dispute. Arbitrators have recognized that
grievances are usually prepared at the work place and that, for
this reason, it would be wrong to insist on a high standard of
particularity or precision in the drafting of grievances.
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For the purposes of this case, we are prepared to accept
that these general considerations are unaffected by the provisions
of the collective agreement relied on by the College.
Much was made in argument about what Mr. Wilson intended
when he drafted the grievance on behalf of the grievor. In particu-
lar, there was some evidence that the grievor had not received the
letter of June 29 when the grievance was filed. As a result, it was
argued, the use of the word "economic" in the statement of griev-
ance was not a reference to the "financial constraints" invoked by
the College in the letter of June 29, but was intended to assert
the argument that the grievor had been the victim of discrimination
on the basis of sex. In our view, Mr. Wilson's intentions as he
drafted the grievance are of little or no relevance. What is
relevant is what was communicated to the College about this
grievance. In the absence of any discussion between the union and
the College about this grievance, we must look at the grievance as
filed to determine its scope.
We fully endorse the admonition by the Court of Appeal
in Blouin Drywall Contractors Limited, supra, that a grievance
should be liberally construed. However, we have concluded that,
upon the most liberal interpretation of this grievance, it cannot
be understood as alluding to a complaint that the grievor has been
the victim of discrimination on the basis of sex. As we read the
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grievance, the position being advanced by the grievor is that her
seniority, coupled with her performance, should have led the
College to renew her contract, and that it was a violation of the
collective agreement for the College, instead, to have based its
decision solely on economic considerations. We cannot detect, in
the use of the word "economic" in the statement of grievance, any
allusion, however faint or oblique, to any discrimination argument.
The violation of the agreement, according to the grievance, lies
in the denial of the grievor's seniority rights. We can discern no
suggestion on the face of the grievance that the grievor feels her
right to be free from discrimination has been violated.
We are of the view that there is an essential difference
between a grievance that alleges a violation of seniority rights
and one that alleges discrimination. The addition of the discrimi-
nation allegation cannot be characterized as merely changing the
focus of the grievance. It constitutes a change in the nature of
the grievance.
Nor is this a case where the union is relying on a new
argument in support of an allegation that comes within the four
corners of the grievance. The union is seeking to change the basic
allegation underlying the grievance. If the grievance had simply
alleged that the grievor had been "denied a renewal of a contract
in violation of the agreement", there would be more weight to the
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contention that the discrimination argument was merely a new
argument in support of the grievance. But since the grievance
specifically and pointedly alleges a denial of seniority rights,
the discrimination argument cannot properly be regarded as a new
argument in support of the grievance.
None of the case-law relied on by counsel for the union,
in our view, would support the conclusion that the union should be
permitted to allege in this arbitration that'the grievor has been
the victim of discrimination on the basis of sex. We wish to
comment briefly on that case-law.
Re Canadian Westinghouse, supra, was a very unusual case.
The grievor there had been misled by the employer as to the true
reason for the rejection of his request to bump. The true reason
was revealed only after the grievance had been filed, and the board
of arbitration allowed the grievor to amend the grievance.
As for Blouin Drywall Contractors Limited, supra, the
Court's comments on the interpretation of a grievance, which we
have already quoted and endorsed, appear to have been by way of
obiter dictum.
We respectfully subscribe to what the board of arbitra-
tion in Re Bell Canada, supra, had to say (at p. 202) about the
union's right to articulate a new legal argument supporting its
allegation of unjust dismissal. However, in the present case, as
we have sought to explain, the union is not putting forward a new
legal argument, but is trying to change the grievance's basic
allegation.
Re Liquid Carbonic, supra, involved a claim by the
grievors that they had not been recalled from lay-off in accordance
with their seniority. The arbitrator allowed the union to prove
that the employer had failed to post certain jobs, since this
alleged failure to post resulted in the employer's failing to
recall the grievors. The union was not seeking a remedy for the
failure to post as such, but was permitted to allege that the
failure to post had resulted in the grievors not being recalled.
The grievance therefore ~emained squarely a grievance alleging a
failure to recall. In addition, however, the arbitrator noted (at
page 148) that, before the grievances were filed, the parties had
discussed the alleged failure to post and how that related to the
grievor's claims. Nothing in that case, in our view, would support
the union's position in the present grievance, where the union
seeks to change the basis for the grievance and where there was
never any discussion between the union and the College of the
alleged discrimination in the context of the grievor's case.
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In Re Steel Co. of Canada Ltd., supra, the union, in
referring the grievance to arbitration, alleged that the employer
was in breach of "any or all" of the articles of the agreement.
This was held to be sufficient compliance with a provision in the
agreement which required the union to "specify the Agreement
clauses involved". As such, this aspect of the award is not laying
down any principles about the amendment of grievances or the
interpretation of their scope, but is merely interpreting one
provision of the agreement.
In addition to the cases cited by Mr. Lynk, we also wish
to refer to the recent unreported award of a board chaired by
arbitrator Brent in Re George Brown ColleRe and Ontario Public
Service Employees Union (dated November 10, 1992), which bears some
resemblance to the present case. The grievor in that case had been
informed that she was to be laid off, and the grievance alleged
that this decision was "an unjust application of Management Rights
under Article 3.1 and any other applicable article of the collec-
tive agreement". At the hearing, union counsel asserted that "there
was a racial element to the decision and that the grievor was being
punished for filing other grievances about work in her department"
(page 3). The College "replied that there was no hint in the
grievance as it was filed that the basis on which the grievor says
the action was unjust was improper racial or reprisal motives"
(page 4). At pages 6 and 7, the board concluded that it would allow
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the union to put forward the allegations of racial discrimination
and reprisal:
Those allegations are not apparent from the face of the
grievance. However, we were referred to nothing in the
collective agreement which limits the parties to that
which is stated on the face of the grievance. The College
did not argue that the Union was precluded from raising
the issues because of any failure to state them explicit-
ly on the face of the grievance. The College did not
assert that it was taken by surprise by the allegations.
Had it done so, then clearly we would have had to
consider whether we would allow the Union to make such
new allegations at the hearing. We must therefore assume
that the College was not taken by surprise and that the
parties had some prior dealings with each other during
the grievance procedure or earlier in which the Union
made known to the College the substance of its claim.
Based on that assumption, we are faced with an entirely
different situation than would have been the case had
those allegations not been made...
Although we are very concerned about the grievance form's
failure to set out clearly the matter in issue, and would
have considered different alternatives had the College
argued that it was taken by surprise or pointed out some
provision of the agreement which prohibited the Union
from raising the matter, we believe that in light of
Article 2.3 we have no choice but to hear this case on
the merits...
The approach taken by the board of arbitration in R_~e
George Brown College in the passage we have just cited is not
significantly different from ours. The assumption on which that
board acted was that the allegations in dispute had been the
subject of "some prior dealings [between the parties] during the
grievance procedure or earlier". As we have indicated above, we
would likely have come to a different conclusion if the evidence
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had established that the allegation of a violation of Article 27.01
had been communicated to the College during the processing of this
grievance.
IV
We have therefore concluded that the allegation in
support of which the union wishes to obtain documents from the
College does not come within the scope 'of the grievance. The
documents are therefore of no relevance to the grievance, and the
summons must be quashed.
This conclusion makes it unnecessary for us to examine
the other arguments advanced by counsel.
We will leave it to the union to inform us whether, in
light of our decision on this preliminary matter, it wishes us to
schedule a further hearing on this grievance.
DATED at Thornhill, Ontario, this 18th day of June 1993.
Michael Bendel,
Chair
I concur~t-~s~e~ ~t~O~ ~t~' ~ ~'~'
Andrew Shields,
College Nominee
~-~u~¢I dissent ~
DISSENT TO FOLLOW Terry Kearney,
Union Nominee