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HomeMy WebLinkAboutUnion 87-07-06 H F.A D N 0 T E CAAT ACADEMIC OPSEU # 87A66 OPSEU Loc. 655 Append ix 3 UNION (OPSEU) vs. Cambrian College (A) Award dated July 6', 1987 (J.W. Samuels) Union grievance is dismissed as untimely - it questioned the use of sessional employees as full-time employees during the academic year starting September 1, 1986. The grievance was filed on October 15, 1986 beyond the 40 day requirement for filing it "from the occurrence or origination of circumstances giving rise to the grievance [" Concerning an 'arbitration 0~'~'~'/~ ~ fO Between: CAMBRIAN COLLEGE and ONTARIO PUBLIC SERVICE EMPLOYEES UNION Union Grievance conceming use of sessional employees Board of Arbitration J. W. Samuels, Chairman R. J. Gallivan, College Nominee J. D. McManus, Union Nominee For the Parties Union M. Cornish, Counsel S. Bertrim M. Lamb D. Poupore V. Anderson College B. Bowlby, Counsel S. Kallio, Chairman, Preparatory Studies R. Hurly, Director of Human Resources T. Keehn, Director of Academic Support Programs. Hearing in Sudbury, May 25, 1987 The Union claims that the College has violated the collective agreement by continuing full-time positions in the preparatory program beyond one full academic year and continuing to staff these positions with sessional appointments. This is contrary to Article 1 (d) of Appendix III, which reads: (d) If the college continues a full-time position beyond one (1) full academic year of staffing the position with sessional appointments, the college shall designate the position as a regular. full-time bargaining, unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. The College raised a number of preliminary objections. Timeliness Firstly, the College argued that the grievance was untimely. The grievance was filed on October 15, 1986. This argt.~ent goes as follows-- a. Article 11.10 of the collective agreement provides that a Union grievance shall be filed "within twenty (20) days following the expiration of the twenty days from the occurence or origination of the circumstances giving rise to the grievance". This awkward way of expressing the matter means that the grievance must be filed within 40 days of the occurence or origination of the circumstances giving rise to the grievance. b. The "academic year", beyond which the College was prohibited from staffing the positions with sessional employees, ran from September 1, 1985 to June 30, 1986, pursuant to Article 4.03 of the collective agreement. This Article reads: 4.03 The academic year shall be ten (10) months in duration and shall, to the extent it be feasible in the several colleges to do so, be from September I to the following June 30. The academic year shall in any event permit year*round operation and where a College determines the needs of any program otherwise, then the scheduling of a teacher in one or both of the months of July and August shall be on a consent or rotational basis. c. Thus, if there was a violation of Article 1 (d) of Appendix IH, it originated on September 1, 1986, when the College continUed using sessional employees in the positions. Furthermore, it was agreed by the parties that the decision to use sessionals was made before September 1. d. The 40-day time limit for the filing of the grievance ended before October 15, 1986. e. The 40-day limit is mandatory, because Article 11.05(a) of the colleCtive agreement provides that failure to file a grievance within the time limits means that "the grievance will be considered abandoned". And the Board of Arbitration has no jurisdiction to alter the collective agreement (Article l l.04(d)). This was confirmed in the award of the Board of Arbitration in St. Clair College of Applied Arts and Technology and Ontario Public Service Employees Union (Grievance of I. Murray, unreported award dated March 8, 1982, Chairman J. D. O'Shea), at pages 14- 15. In our view, this preliminary objection is well founded. There was no suggestion that it was not feasible to have the academic year run from September 1 to the following June 30 in this situation. Indeed, it was agreed that the College did its staffing on this basis. The Union's grievance was simply too late. In reply to this first objection, counsel for the Union urged us to find that the College had waived its right to raise this objection, because the objection was not mentioned until April 1987. We were ~eferred to Re Regency Towers Hotel Ltd. and Hotel and Club Employees' Union, Local 299 (1973), 4 LAC (2d) 440 (Schiff), wherein the learned arbitrator said (at pages 443-6: Arbitrators have long 'rejected such objections when the objecting party's failure to raise them in timely, fashion has .led the other party to .violate some procedural requirement .that it might otherwise have satisfied. E.g.,'Re' U.A.W. avd Ford Motor Co. of Ca~ada Ltd. (1951), 3 L~A.C. 895 (Cross): Re Oil, Chemical &- Atomic 'Workers, Local 9-593 tlm~ British American Oil Co. Ltd. (1965), 15 LiA.C. 408 (Lane). And see Re United Hotel Workers U.n.i°~*., Local 274, and Lord Elgin Hotel Ltd. (1954), 5 L.A.C. 1889 .(Curtis); Re.Int'l Lo~g- shoremen's Ass'n; Local 1879, and Hamilton Termi,~al Opera- tots Ltd. (1966), 17 L.A.C. 181 (ArthurS). The doctrine justifying the rejection, sometimes Called "eStoppel'' or "pro- missory estoppel", rests upon the patent unfairness of per- mitring the objecting party to benefit from the innocent party's reliance upon the objecting party's previous implied representation that the requirement need inot be Satisfied. Wide application of the doctrine by labour arbitrators has received judicial approval: In Re Oil, Che,mical & Atomic Workers, Local 9-593, a~d British American Oil Co. L~d., s~pra, while the board recognized propriety of its application if the innocent party had been led to 'violate time limitations, the board refused to' apply it where the .employer had failed unti:l the hearing to object to 9he union's processing a per- .sonal grievance under the procedure for'union grievances. Upon judicial review, the High Court of Justice for Ontario demanded its application even to the particular facts as a "principle '... which equity requires, to be followed in cases where a right has been lost by reason of the failure to raise an objection prior to arbitration itself". See R. v Lane et al., Ex p. Gree~ et al. (1966), 66 C.L.L.C. para. 14, 137. ~Arbitrators. hage also..long, rejected such objections, wherg,~ 'Ii, though-' the"objecting- party, in no way. induced-breach:, of~th~ *procedural'.vequirements)~,without mention of the~clear defec~ qt~engaged~ with,..~.the, other.~ party ~..in.~, further., processing,.the~ qo'ievanceon.the..merits before, or at the s~age, of.. arbitration** E.g., Re U.A.W. a~d Massey-Harris Co., Ltd. (1952), 3 L.A.C. 1059 (Lane); Re U.E.W., Local'.512, and Standard Coil Pro- ducts (Canada) Ltd. (1964), 15 L.A.C. 197 (Lane); Re It~t'l Chemical IVorkers, Local 505, and Forest Basket Co. Ltd. (!965), 16 L.A.C. 33 (Hanrahan); Re C..U.P.E., Local 24, a~d Tow.~ of Pembroke (1967), 18 L.A.C. 125 (Johnson.); Re U.A.W. and Daal Specialties Ltd] (1967), 18 L.A.C. 141 (Weatheril]); Re U.S.W. a:nd Co~st'r'uction' Prod~tcts I~c., Ca~wxlia~ Division' (1970), 22 L.A~C. 125 (Brown); Re G.N.R, Teleco-mmztnicatio~s Dept., and Ca~tadia~ Telecom- m..unications U-~5o~'~, Divisio~. No. 43 (1971), unreported (Arthurs). And see Re U.S.W., Local 2251, and Algoma Steel Corp. Ltd. (1963), 14 L.A.C. 242 (Hanrahan), quoted with approval in R. v. La~e et al., Ex p. Green et al., supra.liRejec~ ~tiOn.here rests on .reasoning that, by.'treating.:.the :grievance! ~n,..~..i~ ~..mc.tits in. the.., presence. ~of.~ a...clear. ~ procedural ..:defect, ~l;he~party~:-'.~vaives~!..,;..,~he. defect. Reviewing an award where the fa'cts were very similar to those established before us, the CouFc of Appeal for Ontario approved la.hour arbitrators' determination of waiver in Re Civic Employees .U~.io~ No. 43 and Mm~.icipaIity of Metropolitan Toronto, [1962] O.R. 970, 34 D.L.R. (2d) 711. In so far as waiver in the absence of detrimental relian~ce must rest upon amendment of the collec- tire a~o~reement limited to the processing of the grievance at hand, at least one board found the writing made necessary by the statutory definition of "collective agreement" in the exchange of con'espondence setting the date for the arbitra- tion hearing. See Re In~'I Lo~.~gshoremen's Ass'n, Local 1879, and Hamilton Terminal O19erators Ltd., supra. ~J[q~_.~in.d that.the..employer's conduct', ind[[~ed ~heA~vise~.~have.. satisfied,.. Ho....w. ~xe.r,~.~w~.~,s.e.e .. na~..~e...ason. ~why~ ~p~ory...estoppel canno.t~.r.e.s..t...:~.u~qn..~t..h~,._un~p~.s.'.~ju.s, tifiable~ Seliance..~. on_,.the.:, employer~s..~imp!ied,~,.r, epr esentation ~s~:~.w..hich~ ~_qaused the union to.initiate anq! then co-operate in constituting~ 9~?:i.ts. nominee, and. ~share .the..~fee ~ ?_f ._~!~.e....c~ai.rman. ~.0bliga-. · ions-the union.might ~have aV°ided..had.~ghe.: employer., raised~ ~th.e. objections.before one or .bo~A of ..us had been chosen~At. ~events,: apart fr0m..thlS ~n~n_.c9 of.. the umon s detr~men.- ~tal.~. reliance,., we find that the i~n~loYer's 'do'nducU~'frord".the. ~niddle of October to tahe very eve' of the %irst l~earing con-: ,.stitutes its waiver of 'all":i~r-~ibh~'-d~f~ts~'""'Aidffth~i'fadt tIia~' ~the. employer first registered the. objection a day in advance ~(rather than. at the hearing itself) cannot, as we see it, make ~ny difference. In so far as waiver rests on due amendment of the collective agreement, the two letters of November 2nd and November 10th constitute ~he amendment. If more is needed, there is also the exchange of letters in January, 1972. .between the nominees~the parties' representatives for the purpose--and the chairman by which this board was con- stituted and the date for the hearing was set. See. I.~t'l Lo,~q- shoremen's Ass'~, Local 1379, a~d Hamilton Termb~al Opera- tots Ltd., supra, and R. v. Weiler et al~, Ex ~. Ho¢~' Tra~sport Co. Ltd., supra. At first glance, one passage in the reasons for judgment of the Divisional Cour~ in Re Hospital Commis~io~, Ge~eral Hospital a'nd Lo~don District Buildi.,.q.. Service Workers' Union Local ~£0, S.E.I.U., [1973] I O.R. 240, 30 D.L.R. (3d) 660, might appear to cast doubt on our au~hori(y to determine promissory estoppel or waiver in the present cir- cumstances. However, our close reading .of the few words the Court spoke about "estoppel by conduct" convinces us that they are limited to the specific facts revealed in the award under review: the employer's assertion that some "previous dealing" begween the par~ies barred the union's claim for due enforcement of the requirements of the unambiguously- worded holiday pay provision. We find great difficulty in contemplating fact-situations where, because an employer had in the past acted to its detrimen~ in justifia, ble reliance upon the union's representations implied in the parties' "previous dealing", arbitrators are permanently barred £rom applying the proper interpretation of a .substantive provision in the collective agreement. See Re United Electrical, Radio & Ma- chine Workers of Ame.rica, Local 515, and'Ca.~adia.n General Electable Co. L~d. (Royce Works) (1954), 5 L.A.C. 1644 (Las- kin); Re Local 161, Int'l Chemical Workers' Unio~ a~¢l Co~- sumers' GaS Co. of Toronto (1954), 5 L.A.C. 1718 (Laskin). And see Re United Pacldngkouse Workers, Local 11.~, and Canada Packers Ltd. (1966), 17 L.A.C. 60 (Reville). Quite clearly, i.f we were to read the Divisional Court's words more widely; they would :then contradict the reasons of the High 'Court in R. v. Lane et al., Ex p. Green .e~. a'l., supra) concern- ing promissory estoppel, and the reasons of the Court of ~ppeal in Re Civil Employees Union 17o. 43 and Municipality of Metropolitan Toronto, .supra, concerning waiver. For the sake of discussion, we may assume that the Divi- sional Cour~ in the Hospital Commission case, SUpra, meant to assert that application of the promissory estoppel doctrine by labour arbitrators in circumstances that would be appro- priate by Judges in contract litigation constitutes arbitrators' amendment or modification of collective agreements forbidden in Po~ Arthur Shipbuilding Co. v. Arthu.rs et al., [1969] S.C.R. 85, 70 D.L.R. (2d) 693. Even on that assumption, the assex~tion does not affect the' situation established before us: the parties and their representatives, by exchange of letters concerning constituting the arbitration tribunal, impliedly agreed to waive the relevant provisions of the agreement for the purposes of the particular grievancel The parties, not the arbitration hoard, have duly amended or modified the agree- ment and, in interpreting and enforcing the amendment, the board performs the duty' stressed in Port Arthur Shipb~dlding Co. Counsel for the Union argues that in our case we are dealing with the second branch of waiver mentioned in the Regency Towers award---where although the objecting party in no way induced breach of the procedural requirements, without mention of the clear defect it engaged with the other party in further processing the grievance on the merits before or at the stage of arbitration. In our view, this doctrine of waiver does not apply in this case. Firstly, even if the award in Regency Towers is correct with respect to the existence of this second branch of waiver, the Board in that case relied on the two letters of November 2 and 10 as amending the collective agreement, because as the Board said "waiver rests on due amendment of the collective agreement". We have no such letters here. Indeed, it would be difficult to see how the grievance procedure under the collective agreement could be amended by correspondence between one College and the Union. The collective agreement is between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Union, and there is no provision in the agreement for amendment of the grievance procedure by one College. Secondly, in our view, the effect of the Union's delay is clear under .this cOllective agreement, particularly after the award in the St. Clair College case. Therefore, we find that this first preliminary objection is well founded, and for this reason, the Union's grievance must fail. Having come to this conclusion, it is unnecessary for us to consider the other preliminary objections made by the College. However, it might be useful if we made some comments about the other objections in order to assist the parties in their consideration concerning other similar grievances. Retroactivity The collective agreement was signed on May 22, 1986, and it is effective from September 1, 1985 to August 31, 1987. Article 29.01 of the agreement provides: 29.01 This Memorandum shall take effect commencing on the date of signing and shall have no retroactive effect or application (except as to the full-time employee Salary Schedule as set out in Appendix I and the partial-load hourly rates as set out in Appendix II, effective as of September 1. 1985), and shall continue in full force and effect until August 31. 1987 (except as to the full-time employee Salary Schedule as set out in Appendix I and the partial- load hourly rates as set out in Appendix II effective as of September 1, 1986) and shall continue automatically thereafter for annual periods of one (1) year unless either party notifies the other party in writing in January, 1987 that it desires to amend this Memorandum. Article 1 (d) of Appendix IH was new to this collective agreement. The College argued that, pursuant to Article 29.01, Article 1 (d) of Appendix III did not come into effect until May 22, 1986, when the collective agreement was signed. Therefore, the first academic year during which the Collegets use of sessionals would matter would be September 1, 1986 to June 30, 1987. And Article l(d) would then prohibit continuing the staffing of these positions beyond September 1, 1987. It was argued that the Union could derive no rights from College actions pre-May 22, 1986. In our view, this objection is not well founded. If .the College's argument were correct, then the substantive rights under Article l(d) of Appendix III could not be exercised until after the collective agreement had expired (it expires on August 31, 1987). Thus, this article would be meaningless during the term of the existing collective agreement. And there is no guarantee that the article would continue into the next collective agreement. This would be absurd, and could not have been the intention of the parties. The obligation of the Coll~ge which is introduced by Article l(d) of Appendix 1-ri is to staff positions with full-time bargaining unit appointments, if the position had already been filled bY sessional appointments for one year.' This obligation would take effect under Article 29.01 at the commencement of the first academic year which begins after May 22, 1986. That is, the obligation would commence on September 1, 1986. Employee/Employer Relations Committee Finally, the College argued that this matter should have been referred first to the EERC. This Committee is established pursuant to Article 15 of the collective agreement. In our view, it is clear that this objection is not well founded. Article 15 makes clear that the purpose of this Committee is to aid in resolving problems, but Article 15.03(f) says that "The Committee will not address items that are the subject of a formal grievance", and 15.03(g) says that "It is recognized that the Committee is not intended as a decision-making body". Article 15 does not put any roadblocks in the way of the Union's right to file a grievance. Done at London, Ontario, this ~/~ day of -~ ,1987. ~_~ J~. Samuel§, Chairman 'R. J. G[llivan, College Nominee J. D. McManus, Union Nominee ADDENDUM OF R. J. GALLIVAN I a~ree with the Chairman's decision that the grievance was untimely. I re~ret that I cannot, however, agree with his obiter remarks on retroactivity. We had no evidence before us dealing with the intent of the parties in negotiating the new Article l(d) of Appendix Iii into the agreement. It could well be that the union was content simply to establish the ~rinci~le of l(d) in this agreement awaiting its effective implementation in following agreements or even tradinK it in future neg- otiations for something else. That being the case, I would find on the clear words of Article 29.01 of the agreement that Article l(d)'s prohibitions become a~Dlic- able only as of September 1, 1987.