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HomeMy WebLinkAboutUnion 97-10-22 IN THE MATTER OF AN ARBITRATION - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR PATRICIA C. HENNESSY COLLEGE NOMINEE ELMER McVEY UNION NOMINEE APPEARANCES FOR THE COLLEGE: STEPHEN J. SHAMIE SUSAN PRATT APPEARANCES FOR THE UNION: RICHARD A. PHARAND JOHN CLOSS JOHN FILO DEBBIE SOMEK OPSEU FILE NO: 96D909 HEARING DATE: SEPTEMBER 12, 1997 The grievance, which was referred to the Board, was filed by the Union and involves a claim for Union dues for Debbie Somek. This claim arises from Ms. Somek's assignment to the Child and Youth Worker Program from May to August, 1996. During this period, Ms. Somek was classified as a Support Services Officer B under the support staff collective agreement. It is the position of the Union that Ms. Somek ought to have been classified as a partial-load Professor under the academic collective agreement. At the outset of the hearing, the parties raised a number of preliminary issues, the first of which involved a request by the Union that the grievance before the Board be consolidated with an individual grievance filed by Ms. Somek in which she claimed that she was improperly classified when assigned to the Child and Youth Worker Program and requested that she be reclassified and compensated accordingly. The College contended, however, that only the Union grievance was referred to the Board and, accordingly, we do not have jurisdiction to grant the Union's request. In the alternative, the College submitted that the individual grievance was not referred to arbitration within the time limits set out in the collective agreement and, therefore, is deemed to be abandoned. Moreover, although the Union requested that the Board grant an extension of the time limits for referring the individual grievance to arbitration, the 2 College maintained that there is no statutory authority which would permit the Board to grant such an extension. The College further contended that the Union grievance is inarbitrable as it involves a matter in respect of which Ms. Somek could and did grieve. The relevant provisions of the collective agreement are as follows: ARTICLE 32 GRIEVANCE PROCEDURES Grievances 32.03 Step Two 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. General 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. Union Grievance 32.10 The Union or 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 this Agreement and that adversely affects the rights of employees. The facts which are material to the preliminary issues raised by the parties are as follows: Both the Union grievance and the individual grievance of Ms. Somek were filed on June 4, 1996 and were heard together at steps 1 and 2 of the grievance procedure. The College provided separate replies to the grievances at each step. On September 23, 1996, the Chief Steward, John Filo, referred the Union grievance to arbitration. However, due to inadvertence, he failed to refer the individual grievance to arbitration at that time. On June 9, 1997, the Chair of the Board was appointed to hear the Union grievance and shortly thereafter, a hearing date was scheduled. On June 9th, the College also advised the Union that it would not agree to consolidate the individual grievance with the Union grievance as the individual grievance had not 4 been referred to arbitration. As a result, the College took the position that the individual grievance was deemed to be abandoned as provided in Article 32.05 A. Upon receipt of the College's response, the Union referred the individual grievance to arbitration. The first issue to be decided is whether the Board has jurisdiction to direct that the individual grievance of Ms. Somek be consolidated with the Union grievance. Although the Union pointed out that the grievances were heard together during the grievance procedure, only the Union grievance was referred to this Board of Arbitration. Moreover, due to inadvertence, the individual grievance was not referred to arbitration within 15 days of receipt of the College's decision at step 2 of the grievance procedure. In this regard, Article 32.05 A provides that if the Grievor fails to act within the time limits set out at any complaint or grievance step, the grievance is considered to be abandoned. It was also acknowledged that the time limits set out in the agreement are mandatory and it has been held in a number of awards that the Colleges Collective Bargaining Act contains no provision which would permit the Board of Arbitration to grant an extension of time: see Algonquin College and Ontario Public Service Employees Union June 29, 1984 (Brent (unreported)); Fanshawe College and Ontario Public Service Employees' Union September 4, 1992 (Brent $ (unreported) and Cambrian College and Ontario Public Service Employees Union January 10, 1996 (McLaren (unreported)). Moreover, although 'the Union placed some reliance on section 84(2) of the Colleges Collective Bargaining Act, this section provides that no proceedings under the Act are invalid by reason of any defect in form or technical irregularity. In Union Carbide Canada Ltd. v. VVeiler et al (1968), 70 D.L.R.(2d) 333 (S.C.C.), it was held that failure to refer a grievance to arbitration within the time limits set out in the collective agreement did not constitute a defect in form or technical irregularity within the meaning of section 86 of the Ontario Labour Relations Act (now section 123), which is comparable in all material respects to section 84(2) of the Colleges Collective Bargaining Act. In the result, as the individual grievance was not properly referred to arbitration, the Board does not have jurisdiction to direct that it be consolidated with the Union grievance. As to the College's objection to the Union grievance, as noted in a number of awards, the provisions of the collective agreement dealing with Union grievances are restrictive. In this regard, ^rticle 32.10 provides that a Union grievance shall not include any matter upon which an individual employee would be personally entitled to grieve. In Fanshawe College and Ontario Public Service Employees' Union February 22, 1989 (Brent (unreported)), it was held that the term "matter" in Article 11.10 (now Article 32.10) refers to the circumstances giving rise to the alleged violation of the collective agreement. In this case, both the individual and Union grievances deal with the same matter, namely, the Grievor's classification when assigned to the Child and Youth Worker Program in the summer of 1996. Clearly, that is matter in respect of which Ms. Somek could and did grieve. Moreover, although the Union grievance requests by way of remedy the payment of Union dues, which is not referred to in the individual grievance, it is clear that the College's failure to deduct dues resulted from Ms. Somek's classification under the support staff collective agreement which is the very issue which was challenged in the individual grievance. In the result, we find that the Union grievance involves a matter in respect of which an individual employee was personally entitled to grieve and, therefore, raises an issue which is not the proper subject of a Union grievance. Moreover, while we recognize the restrictive nature of Article 32.10, the Board is precluded from amending any term of the agreement or making any decision inconsistent therewith. For these reasons, therefore, the Board has no alternative but to dismiss the Union grievance as inarbitrable. DATED AT TORONTO, this 22nd day of October, 1997. Chair "Patricia C. Hennessy" College Nominee "Elmer McVey" Union Nominee