HomeMy WebLinkAboutGroup 98-08-13 IN Th~. ~:{.~.TTER OF AN AKB~~ON
THE ONTARIo PUBLIC EMPLOYES UNION - LOCAL 657 ("TH~ UNIO~
CANADOR.E COLLEGE OF APPLIED AP.TS & TECHNOLOGY ("THE COLLEGE")
Concerning the "Group C-~ovance' filed on March 16, 1996.
tCO. MacDowell (Chair)
.lohn McMmus (Union
Barry ~cson (College
APPEAR ANCE$:
For the Union: Richard BI*~- (Counsel)
Mary Toye
Cmrald Laronde
Peggy M. on/son
I)~au ~
For the C_oll¢i,c 'Douglas Gray (Counsel)
M. Tait
B. Suth~rland
hearing in this matter was held in North Bay, Ontario, on April 29, 1998.
AWAR~
I- WHAT ~'HIS CASE IS ABOUT
This is a "C~oup C~ievaace" that ~ ~ on ~h 16, 1~6. ~e ~e~ce ~ ~
si~ of 12 ~d~ ~d ~ ~s ~y'
~TA~ OF ~~: ~ ~e Co~, ~ i~
~pl~~on of~e ~m ~ly Lm~ ~~
~~ble ~~ of~ ~~
"~f ~e ~ P~ ~ ~~ fo~ ~ ~ploy~ ~r a
~o~ble ~ of ~e'
~o~ly ~w~ ~ ~ ~t ~ ~e ~ev~ ~d n~ ~o a ~ ~~ to ~o
.~evo~ m ~fio~ o~~W to ~e ~~e of ~e '~ly l~g' ~o~ ~t w~
av~ble ~ ~e 1~6 pl~
The College replies that the matt~ complained of cannot be properly ~ as a
"Cn~up grievance'; because they do not arise from 'one specific indde~*" (see Article 32.09 of
the agreement) and the framed individuals wer~ not "affected" in a homogeneous way. In ~t~e
College's snbmission, this is not really a "Cn~up G-rievance' at all. Rather, it is a bundle of
',.~
1
individual complaints, that turn on individual ¢irc-mstanccs - much I/kc the kinds of complaints
that arise/n the shadow ora Eeneral layoff. (See ~merally Article 27 office AEreemen~). The
College asserts that the grievance raises discrete allegations of%zistep~~on" and
"disc 'nmination", and discret~ concerns about the application of the early leaving plan to
individual employees. In the College's submi-~ion, allegations ofthat kind can ~mly be p~
must be dismi.~,sed. '
More fuudamenlally, thou~, the College contends that issucs raised/n thc gr/evance
cs~not be arbitrated at all because the Barly Leavin~ Assislance Plan is not pa~t of the collect/ye
agreement nor re,related by the aE~ent. The Coll¢~e says thai on that ~n:~,m_ rt as w~ell, this
l~icvanc¢ is not arbitrable and must bc d/sm/ssed.
The CoHe~ asserts that the BLAP was neither the subject of collective bargaining with
the union, nor was it required by any provision of the collective agreement. In fact, the agreement
says no~hing about early leaving assistance a~ ail Nor is there any conflict between the options
offered under the plan and the provisions of the collective agreement. The College argues,
thcrcforc, that there is no conUactual foundatioa for the employees' complaint.
The College po/uts out that the ELAP was introduced by Canadorc (but not other
Colleges) unilat~ly and ex ~ratin. in order to meet local problems and give its own employees
· - some options that they would not have under the terms ofthc/r collective agreement. There was
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no ¢ont~actual obligati°n to make these optioa$ ava/lable, nor does the agreement pwhibit the
College fi'om doing so. They do uot fall trader the terms of the agreemeot at ail
The College denies that there was any "dis~*on" in the ~dminisUafion of
the early leaving assistance program. It is acknowledged that ~q21oyees may not have had mttch
time to consider thei~ optioas, and, iu a period oftm~i,~t~,, some ind/viduals may bare been
coufused, some may have ha//mpede~ ;m~or~on, and, in ~;~dsight, some may now wish that
they had m~de other choices. And no doubt there was lots of speculation and"scuttle~ about
the impact oflayo/fs in early 1996. But the College denies that it discriminat~ agai~t or misled
anyone; and, in any event, employe~ complaints about the program do not, and cannot, arise
from "the interpretation, a~plication, ~a~inistration or alleged contravention" of thee collective
agreement (s~o the definition of"grievance' in Article 32.12 C below). Since the plan is neither
part of the collective agreement nor inconsistent the term_~ of the collective agreement, there is no
%ontractual hook~' for thc p~seut g~ieVanc~. It b slm?ly not arbi~blo.
Tn s~, the College coateods that these employee allegations canuot b~ dealt
with as a "C~ou~ griovaace" and, in any eveut, what the grievers are complaiai~ about, is not
"arbitrable". The College says that, on both grounds, the gd~ should be dismissed.
The pat~ have agreed to ~ their submi.~ions to th~o two "p~Ce{jm~n~ry
obje~ons. However, before looking at the background in a little more detail, it might be useful
· - to re¢oni certain provisions of the collective agr~meat:
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MANAGEMENT FUNCTIONS
6.01 It is the exclus/ve function of the Coll¢~'s to:
(i) maintain order, discipline and efficiency;
(ii) hi~ di~ hansfer, classify, ~o~ appoint, promote, demote, hy off~'
recall and suspend or ~ discipline employees subjcct to the right to lod~ a
(Ui) mauage the ¢olle~,e and, without restric0ng the generality of
the right to plan, direct and control operations, fac~ies, pro.ams, comtes, syste~__s and
procedures, direct ks personnel, determ;~e complement, or~n;.atlon, methods and thc
number, location and classification of pct~onucl rcquh~ from thn¢ to time, the number
and location of c~mpuses and facilities, services to be pe~ormed, the schednliw~ of
assi~o~ments and work, the extension, lira/ration, curtailment, or cessation off operations
and all o~er fights and responsibil/ties not specifically modified elsewhere in th~s
Agreement.
6.02 The Colleges agree that ~hese functions will be exercised in a ms,_,.er consisten~
with the p~-ovisions o£t~i.~ A~,mcnt.
Group Grievance
32.09 In the event ~h~t more than one employee is directly affected by one specific
incident and such employees would be entitled to grieve, a ~up grievance shall be
presented in wrjth,~ by the Union signed by such employees to the Director of
Personnel or as dc~gnated by She College ~ 20 days followiug the occurrence or
orisination of the circmasumccs gi~ng rise to the ~ricvance co,~mencin§ at Step One
o£Art/cle ~2, (~4evance Procedure, Two grievors of the ~roup shall be entitled to be
present at meegngs in $~ep One or Two unless otherwise mutually ~
:32.12 C ~Cnievance" mean~ a complaint in writing arising from the interpretation
application, scImi~;stratio~ or alleged contravention of this Agreement.
:32.04 D The arb/tration Board shall not be authorized to alter, modify, or amend any
part of thc terms of the Agrccme~ nor to make any decision inconsistent theiv~vith;
nor to deal with any matter that ir not a proper matter for grievance under this
~reernent.
4
Il'- SOME BAC, KGROUN~
In late 1995, the Collcgc faced s|?iflcant budget cuts, which ~xluircd it to undertakc
some internal reowanizaii~n and coosi~ the possibilit~ oflayoff~ The prospect of layoff% in
mm, ~~ a ~umbot of tho ~job so~rit~ provisions of~ho coll~tive ~e~. For
example, under Article 27 of the ag~-ment, the ~rr~. loyme~t Siability Commlt~ was
constituted to consider ways to avoid layoflS~ and preserve wozk oppommities. The ESC is a
joint union/management group, with a consultative role, and the power to makc
recommendations about strategies to enhance employment stability.
By early 199/;, however, layoffs were still quite clearly "in the cards"; but, at that point,
it was uncertain how many layoffs the~e would have to be, or who would receive layoff notices.
Nor was it poss~le to predict who would ultimately be laid off, because the collective
agreement allows senior employees to avoid layoffby"bumpin~' into positions for which they
are qualified. Tho receipt of a hyoffnotice does not necessarily mean job loss; so ~ until the
layoffs actually crystalized and thc bumping options were sorted out, no one could know for sure
whether s/he would be displaced. Junior employees with few tran-~%trable .~lrills were thc most
at risk, however, there was a possibility that even senior employees could be affected, d~pending
upon which programs worn cut and how the bumping process unfolded. It was a period of
On lenuary 9, 1998 Ricbsrd Beauchamp, the Director of Human Resources, issued thc
following memo to all full gme employees:
I ~m pleased to inform you that ~c Board of ~3ovemo~ h~ aplxoved
the introduciiou of an Early Retirem~ Assistance P~ for 1996. The
attached plan is desi~ to provide a variety of incemives to encourage
tho consi~on of either early retirement or the pursuit 0fpersonal
objectives. At thc same time, it is also dosign~l to improve thc ability
of the college to create opportunities for r~mctuting end to meet fiscal
re~onsibilities.
Any c~ployee who is a foli-6m¢ employee or,he college, has more
that one year of service with the college in a full-6me complement
position, and is loss than age 64 may apply. The Early Leaving Assis~nce
: Plan is being introduced to lessen the need for any potential layoffs as thc
" College restructures ~o meet the challenges of the future. For thig reason, only
those applications that eliminate tho need for layoff will be considered. In
addition, applications will be considered based on the budget available for
the Plan and on college priorities end objectives.
If you_i~vc any questions re~ardin_~ the specific~ o~t~e plan. or how it
would impact on your own situation, please co~cact me at extension 5333
or 1 ~r~ne Anderson at ext,_ sion 5229.
T~--k you for giving serious consideration to this ~.
The details of the.Early Leaving Assistance Plan need not be set out here. It s,~%es to
say that the plan is described in a 10 page document that outlines various "options", inclurlin~: a
simple cash termination allowance; a termination allowance that could be spread over $ years
and made congruent with regular or early retirement; an unpaid leave of absence; and a partially
· .,-~"" paid leave of absence. All ofthe~ options ate described as "incentives to encourage the
consideration of either early retirement or the pursuit of other career or personal obj, ctives",
however, it is clear that their purpose was to save the College money and reduce tho need for
layot~.
The plan do,~maeat in~lude~ several pages of cxplanatiim (with n~~ ~~ a
~mt ~b~ l~e~), a ~e ~~ ~RO~~ FOR AC~S~ (~ o~ &e ~y
(touc~ ~ alia on ~me ~ ~plo~ ~~ ~ ~~ ~d ~P
~i~o~). ~ploy~ ~ ~d ~ ~t a~H~ ~ ~ ~d,~ ~ ~
ac~~ ~ ~e ~ed~ p~c~ ~9~, ~ was a J~ 30. 1~6 ~l~e for
'k~~on allow~ce" ~6ons; m ~ ~ploy~ ~o w~ ~ ~ ~ ~
~e~, o~y ~ a~ 3 ~ ~ ~ a~H~on.
As will be seen, the Plan was offered to "All full-time employes" - not just to teachers
(etc.) covered by thc Academic Collective Agreement trader which thc present "Group
grievance~ was brought_ In other words, the early leaving assistance options were not only
outsid~ the terms of tim Academic collective agreement, but they w~o also being o~red to
support staff who are covered by a diffemnt.collectiv_¢ ~rccment. That is.one ofthe reasons why
the College says that the plan has to be seen as an "extrinsic" and"ex gr~_ ~" benefit, not
g~vemed by auy collective agreement.
· :~: The lanua.ry ~' memo Lnvites employees to consider the plan and contact the Human
· .. Resources Department for further in/ormation. However, at that point, the Human R~souw~
:.~..; Deparlment was unable to .be very specific about the impending hyoffs - which is to say,
who/what/how many would be cut, and when. The Colle~e did not know these details and, as a
practical matier, could not know the extent of the layoffs until the union-management
Employment Stability Committse had m~ae its recommendations and ms-%oement had reviewed
the s/marion - incI,_,a;~ tho success or otho~wise of the early leavin~ incentives. Thus, in a
further memo dated Jan~__L_~y 12, 1996, Mr. Beancbamp adv/sai employees as follows:
I have been advised by a number of employ_~s__ as to
when specific details would be fozthcomlng
any progr~m-~ or services that may be affected by the
rc~mtly announced budget cuts. Under the teans of the
two colle~d, ve agreemen~ covoring College employees,
the~ are re~ai~cions on what information can bo
released and when it can be released.
Both agreements requiz~ the College to discuss its plans
with the appropriato ~lllploymet~ Stability
The~¢ discusaion% which are now occuning between the
Union and the College, are completely confidential and
must remain so roi a specific period of time_ It is only aider
the time frames reqnired in each collective a~..lnellt
have expired that notices of layoff can be given to
For this reason, employees dire~ly affected by the Colleee
downsizin~ exercise c~mngt be notified .until the first week
of February. We have released as much information as the
collectiv~ agreements permit at thi_~ point in time.
It/s recognized d~: thc next few weeks will be a ~me of
unceminty. We realize how stressful this can be, but in ·
the end the outcome w/Il be much better as the Bmployme~t
Stabih't~' Comrn;~e, es are wOr_ldng very hard to m;n;m;~' thc ·
number of layoffs that will be require& Wc are also confident
that th~ recently distn'buted Early l~n, lnt, Assis~-nce Plan.
will_help us considerably in the effort to reduce the limber of layoffs.
If you have auy qlmslicn$ or need fret, her clarification please call.
The Jalllla~ ~)t ~o ~ the follow-tip memo of lan, _,-~y_ 12~ , both stress fl~e same
themes: thst there is a "downs_~=ing exewise' unclexway, that them w/il probably be layoffs, that
the number of layoffs will not be 6.-lP~,d until _early Febnm~ 1996, and that, in the meanOme,
the College is offering depama~ inc~atives which might reduce thc nccd for such hyoffs. The
timing of the plan - with a "buyout deadline" of Ianum,/30, 1996 - is obviously designed to
encourage as many voluntary depaltwes as possible, BEFORE '6nni.~21ng the numb~ of layoffs
that might be requircd. The more individuals who responded by January 30th. the fewer
employees would face displacement/n early Fcbma~. On the other hand, as is also obvious, the
attractiveness of the carly departure options might depend upon whether an individual faced the
risk off layoff or thought that s/he was "safe'.
There were no "general meetings" to discuss tho early leaving program with employees
as a group. In a~cor,'l. _nce with the memos of Jalltlaly 9, 1996 and January 12, 1996, discussions
were to bc pursued on an individ~_~! basis. In each case, the employc¢ applications wen~ to bc
reviewed in accora_nnce with the terms of the plan. In this regard, it/s useful to record item D of
the ~PKOCEDURES FOR ACCESS~ to the plan, which reads this way:
The Executive D/rector, Human Resources, w/l/dmir a meeting
of thc Executive Team to review applications. Applies, lions will_
be ~onside~-d based upon the b_ud~et avaihble~or the F. ar~y
~.eavi~rAssistnnee Plan and on Current Collpye priorities and_
objectives. The ~rantJnk· of K~rly T ~vJulr Assistance is at the sole
discretion of the CoHp~.e~ (i:-mph~is in the original).
It is cleat thnt under thc terms of the plan, an application for au enrly leaving incentive
payme~ did not guarantee acceptance of~is employee request. On the co~, thnt remained
within the "sole discretion of thc Collie' based upon budgetnry and opetnfional considerations.
The only thing th~ the plnn itself stipul~es, is that an employee should discuss thc matter with
the H,~_~ Resources Depattmcut aud that any application will be consi&'red ~s a matmr of
"discretion", in accordance with the "b'ud~ availnblc" aud the College's own ~prio0ties and
objectives". Accordin~y, what the individual grievors may have lost Coy not applying), is not the
cash payments mentioned above, b~t rather the oppommity to have their individual requests
considered in light of thc criteria spelled out in the plan. It is a "loss of oppoWmity" which
might or might not have ~esulted in a cash payment to one or more of the grievors.
NI - THE KIND OFEVIT)~ THAT THE UNION PROPO~F~ TO LEAD
In order to clarify the pm'des' positions on the two '~eliminnty objections" mentioned
above, cotm~l for the Union outli_ned for the Board the I~d of eviclenc~ that he proposed to lend
in support of this ~Group grievance~. It is also helpful to look at Exhibit §, which records the
Union's tespon.se to the Colleges t~Cluest for "parti~~. The patticulnrs in Exh~'~ 6 do not
· ' purport to be complete; however, they do give a geae~ml indication of the kind of testimony .t[~t
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Essentially, the ~mlon ch~m_~ that in the two or guee weeks In-ceding the isp~;~g of
layoffnotices (i.e. in the weeks prec~ing February 9, 1996), employees received inaccmratc or
inadequate info--on about the likelihood of their own layoff, with the result that they did not
apply for the "cash buyo~ options available under the plato The Union says that employees had
questions about how the plum might apply to them, and needed more time to consider the
situation. In co~m~el's submission, thc cvklence breaks dow~ into thre~ broad categories:
'" (1) some individuals heard fi'om their supervisors - incon'ecfly as it turned out - tha~ they
we~ "safe", and therefore did not make application under the plan;
(2) some individuals thought that they might be the target of layofr~ but had no specific
information about their situation, and because they did not think that thc plan applied to
them, they did not apply;
(3) some individuals hadno information either way and in the absence of such
information chose not to apply.
Co, msel says that, not only was some information i,~sccumte, but, mom troubling, some
individuals had accurate information about their situation wl~ile others did not. Those who knew
rh~t they faced layoff or were seriously at risk, had an unfair advantage over those who didn't
(although ofcouzse anyone could have made application). Co, m-~el submits that there were (or
must have been) 'leaks" ~rom the Employment Stability Commilzee - a body whose deliberations
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arc supposed to be confidential (see Article 28.05 (iv) of the Agreement); but in any evcm,
counsel suggests flint some employe~ were in abcttcr position than others to esscss the
desirability of applyinff for the plan. Counsel sttbmi~ dmt if the grievous had known th~ they
were likely to receive layoff noticc~, they would have made an application for early leaving
Exhibit 6, dated May 14, 1996, indicates the kind of evidence that tho Board would hear
if th= mattm- ~ on its merits. As we have already mentioned, these instances do not
comprise the totality of the union's allegations; however, these pazticulars were provided within
a couplz of months of the fzling oftbe grievance, so tizzy giw somo ~lavouz' of th= kinds of
conceras that. employees had, and the I~nd of evidence that the Board would be aske~ to zeceive -
"" 1. Tony told Pauline Levac ... that he would propose two faculty positions
become technologist positions, $ days later, he told Paid;ne ...that his proposal
had been accepted_ pa.!ine knew that thi.~ meant her job was gone bm didn't
apply for ELAP because thought (sic) it meant someone else's layofE Then
Tony told Pauline tl~ ~he layoffwould 1~ based on m~r/t not senior/ry.
2. l~lallcy Graham told Gerald Laronde ... that she went to Tony and asked if her
job was OK and was told yes.
3. Cmmld Laronde asked Tony and was told he didn't have to wony, then was
called in a week later and was told he should consider his options.
4. Tony at a nursing faculty meeting, was asked if 6 pcople had the ~me hiring
date and if any of these people were to be laid offhow would that decision be made
and who would make it. He said that how would make the recommeildation_.~nd it
'would be based on several factors such as: best skills for redeveloping the program
for another delivery, an unders~smling of a University degree program for
articulation puxposes, education, past contribution to the College, what does the
organization need .....
lO,--~ll ltl~3-~ ~RO~'~-'R~,e~BO II~:41~ 3~10
:?
caH~ her ~k ~ a'~ ~d told (~ic) ~e ~o~d ~i~ ~e o~ of~ ~..
6. Jo~ ~p
b~ n~ w~
~ ~ ~ m~e. ~b N~n ~ ~e ~or ~ ~ ~o~ Ph~ ~d a
~n ~o wo~d
7. ~~..on ~ ~,1996 ~ L~ w~ e~ ~ ~ ~ ~ld
k~ ~
~ ~ ~ ~ ~v~ a hyoffno~
o~ (SMek) ~ 2 ~o~d l~k ~ ~1~ ~ ~ p~.
9. Tony on
o~ of a m~ ~d ~k~ h~ ~ ~ ~ a ~ ~ ~i~ ~l~m~t
l~e to p~v~t h~ ~m ~ ~d off~ o~ ~W/co~lo~ ~ mote
s~o~ ~ not ~ ~ ~ ~ ~.e ~ F~& ....
~e U~on ~ys
~~ ~o~o~ wM~ pmmp~ ~ploy~ to ~o a~l~ ~r ~e '~h b~o~
op~o~" ~ch ~ey
~ of~ ~t men~on~ ~).
de~t ~ ~ ~ve ~e cmpl~ ~ ~m~W ~ ~ ~e ~o~ now.
We should note for completeness that a number of the individuals who signed the Group
Grievance also filed ~clividual grievauces complaining about thck layoff. Those grievances were
either settled or abandoned, so we must presume that there is no outstanding dispute co~7~rni~g
the application of the layoff provisions (which, bc it noted, includes the co~fklcntial consultative
I$
rote for the ESC and union officials). Nor, it would seem, did any of the grievors seek
clarification of their position from the Human lesom~.s Depm~ent, in the manner inked by
rite lanuary 9~ and lanua~ 12i memos. The Union's position, as we undemand it, is that
employe~s did not approach the Human Resources Depamnenl or make application, because in
discussions like those listed above, that occumxl in the shadow of the i .mpenal.g layoffs, the '
gricvors wer~ given to un~ ~** they would not be affect~ (As we tmdcmand it, there is
no allegafi~n against Mr. Bea, ch~mp whose depmqment issued the two memos and
the plan itsul0.
We should also note that the Collegc's objec~ons to the Group Grievance were raised
with the Union, ~n writing, on June 12, 1996- that is, abou~ 3 months after the Cu'ou~ Grievance
was filed. So thc objections o-tll,ed at the hearin~ can come as no surprise. However, so far as
we are aware, none of the grievous sought to file bis/her own individual grievance, as some of
them did in ~spect of the laYoff itself. At lt~ poin~ at least, they ~ content to proceed in the
format that they had chosen - despite the College's objection to the form of thc l~ricvance, and
despite the College's assertion that their complsi,~t disclosed no breach of thc collective
Finally, it does not seem to be disputed that, whatever the grievous' individual
complaints and whatever lhe somce of their confidence that the layoff would not aff~ them,
January 1996 was a time of considerable uncertainty, when no one could really be sure how
many layoffs there might be or who might be affected. For not only wc~ the layoff decisions not
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',. j going to be ¢m.l;~d until after Sanuary 30, 1996 (thc deadline for the cash payment options in
the plan), but it is clear that the number and digaibution of layoffs had ~o await the lxocessing of
applica~ons under thc plan it.serf. That is one of ga¢ reasons why tho .Ianuary 12 memo w-am.
employees that thc Collcg~/s not in a pos/fion to advise hdivid~l-~ about how the layoffs will
unfold. And, whatever was said by supervisors at the depamneutal level, the "oflScial" advice ·
from thc Collcgc was that specific l/yoffinfonnafion would not be available until F~uary, and
that iadividuals would ]~ave to m~ke their decisions boforo ~ layoffanllol~llce~lellts we~
made.
IV- CA~ ~ ISSUES RAISED IN TI~S CASE BE DEALT
WITH AS A "(~RO_UP GRIEVANCE" ?
Thc Colleges Collective Bar~i-ing Act requires that every collective agreement
an arbitration provision for the resolution ofdisputcs 'arising:from the interpretatiot~
application, administration or alleged violation of the agreement incl~ any question as to
whether a matter is arbitrable". However, tho statute does not prescribe mxy particula~ form of
"grievance procedure". Nor does the statute regulate the way in which complaints arc funueled to
arbitration. Those ~ are left for the parties to address in the course ofbarga/ning -just as
the parties are free to spell out what will or will not be "arbitrable".
Nevertheless, althou§h the statute itseffhas few prescriptions with respect to the
grievance procedure, the parties' collective agrccraent contains quite detailed provisions about
particular ~ of grievances as well as when and how they may be filed; moreover when these
· ' provisions are read as a whole, it is appare~ that the primary vehicle for compl~inl is intended to
15
be the individual inieva~. "G-rroup grievances" and "Union grievances" are mentioned in the
agleement, but they are residual mech~mlsm.~ that can only bc uscd when the problem in question
fits th~ contractual language defin~g tba k/nd of complaint. Indeed, in the case of"Union
grievances'; the agreement specifically provides ~hat this alternative is not to be used to bypass
the individual srievance process.
Bio one argues that limiting (or ~ grievances in ~ way is '-,Oawfid' or
inconsis~t with the scheme of the legislation. Nor does anyone suggest m~: the concept of a
"Crroup grievance" limits an individual employee's right ~o complain about whatever s/he
believes to be a breach of thc collective agrccmcnt. The agreement does not take away an
individual's right to grieve. However, What Ibc agreement does do, is restrict "C-wul~ grievances"
to the kind of situation described in the'contract language; namely, where "more than one
employee is directll/affeciexi by one specific incider~_.
It follows, we thinlc~ that ifthe problem under ~view does not fit within the parameters
identified in Axticl¢ 32.09, it ca~ot be pum~l as a Group grievance. If it were otherwise, the
opting words of Article 32.09 (i.e. the description of what a ~ grievance~ is) would be
mbbcd of all r,e~nlng_ To put tho matter another way; in order for a matter to be dealt with by
way of a "Croup grievance", it must actually BE a "Group gdevancc' within the mesnin~ of the
collective agreement.
We agree with couns?l for the Union that a Boazd of Ad/lrafion should not take an
16
unduly ~echnical view of the problem before it. Not only does that approach make no" labour
relations sense", bur there is judicial authority supporting a more flexible view. Thus, in Re
./llouin Dryw~ United Brotherhood of Ca~ and Ioiners of America. Local 24~
(1976) 80.F~ 2d 103 the Ol~m'io Court ofAppeal comm~ll~ '%.th~ ~ should not be won
or los~ on the tw~icality of form; Irat rather on ~ merits and as provided in the contract and So
thc dispu~ may be finally and fairly resolved with simplicity and dispat~ .,, and further "....tl~
Board [of arbitration] is bound by the grievance befo~ k, but thc grievance should be libe~ly
construed so thai the real complaint is dealt with and thc app~ rcmedy provided to give
effect to the agreement provisions.-.". Simi~ly, in Re Communications Union Canada and Bell
Canada 77 CLLC parag 14108 at page 276, the Divisional Court observed ~ Nothing can be more
calculated to exacerbate relations betav'een employers and employees thau to be told,that their
"-- differences, plainly dcsigncd to be t~inally settled by arbiU'ation as the statute requires, cannot be
examined because of a defect in form". Nor should a Board of Arbitration lightly embrace an
in~,~,rctalion that could result in a mulliplicity of overlapping legal proc~ings - at
considerable cos~ w the parties and thc public.
';
That said, a Board of Arbitration is also obliged to give content and effect to the
language ofth¢ pa~es' collective agreement, forto do otherwise would fall afoul of Article
32.04 D:
32.04 D The arbilrafion Board shall not b~ authorized to alter,
mod~, or amend any pa~ of the terms of the Agreement, nor
to make any decision inconsistent therewith; nor to dea/wi~h
any matter that is nor a proper matter for grievance under this
" .4greement. .
17
We do no~ ~hka~ thai: we ~an simply ignore what thc agreement says, or deal with
something as a C.n'o~ gri~.~ce that is not a proper matter fo~ a that Id~d of grievance. This is
aot a case like Geo~e Brgwn Co11%,o - "D~ Simone Griev~c~' (decision rdeased December 29,
1995, Burkett) where the employer had, by its conduct, waived any basis for obje~ing to tho way
in which the grievance was processed. There is no" waiver~ in tho instant case.
$o what does a "Group grievance" require ?
Article 32.09 stipulates two r~luilzmems for a ~C~roup grievance". First, ~nore than one
employe~' must bo directly affected b~ one specific blcident". Second. the in&vid~l, employes
making up the group must be entitled to grieve individually - which is to say, that each of the
employee-members of the group has ~o have the basis for a "grievance" as defined in Article
32.12 C ( "a complaint in writing arising from the interpretation, application, ~rlm~i.ewation or
alleged contravention of[the] agreeing. Both x~quizemenls must be met befoxe a problcm can
be dealt with a "Crzoup grievance".
The requirement that the individual members of the group must be able to grieve, is
connected to the general question of 'azbitmbility" - the employer's primary objection in thig
case. Thc notion is a simple one: if the individual grievous csnnot complain individually because
their grievance would not be arbitrable, then they c.~nnot ~e a Group grievance either (or more
· ' accurately, they can file, a Group grievance but it, too, would not be .a!~i~ble)..However, equally
18
troublesome on the facts of this case, is the requirement d~ the members of the group must be
"directl~ affected' by ~one specific incident~. Is that the situation hea-e?
The Union says that each of the grievors was 'affected" by thc introduction and
~am~ni.~ation of the early leaving assistance plan, and ~t they shs_re the same complaint that'
wl~ was sa~d or don~ in ~ ofth~ pisa disco~ them fi~m m~ng ~q~lication. They
took place in thc shadow ofth¢ layoff. In tl~ Union's view, the whole proce~ was flawed.
However, the Union does not complain about the introduction of the pl~ per se, nor is
there my suggestion that the ex $,ratia benefits offered by the College were prohibite4i by the
.~/
collective agreement. So while the [uirodu~on of the plan might be considered a "specific
'incident'', it is not one about which the employees are grieving; and what they are complaining
about is not a specific incidcnt bu~ ~r_ber a number of conversations with various supcrvisors in
which (it is said) there may have B~-~n some misrepr~on, or au inadequate explanation or,
aitematively, quite accurate infommtion ora kind fha was not made available to all cmployccs.
Accov4;,,~ly, even if there was some "leak" from the ESe (there were no pa~ticuls~
allegations about that), it was the communication or diffusion of t~i.~ information - in whole or in
part, accurately or insecurely, broadly or selectively - to individuals which prompted their
individual decisions to ~_ake ~-plication under the plan, or not. (We leave aside for now whether
the College can be held singularly responsible for the functionin~ offa joint unio~rnmuagement
'- consultative committee). _
19
· ~-/ Now, each of these local conversations with particular individuals might be c. onsideied a
"sp~ifi~ indd~t" that may have i~fluenced that individual to his/her detrim~t (in file "lost
opportunity sense" mentioned above). Had that conversation not ooam~ or had more
information b~n ~onv~l, tha ~-p. loy~ might have made. application und~ th= plan, and ~
might hav~ b~a offing! one. ofthe oash options available Cdthe application also m~ the
College's needs aud priorities and if the Coll~ge had th~ budge). Or so ~he Union say~ ~,
it camot b~ said that the gl!t!!p_of employees is "affe~ed by one ~c ineidmt". Thc word
~iaeident", modified by the words 'one" ~'sp~fic~, simply cmmot be shglr, hed ~o in~lud~ th~
kind ofpattem of eveats lzlied upon here. There was not one incident, but many; sad the ~
was not di~y afl%gt6~i by ally ~ eVel~ l~ aloll¢ ~ed ill the ~me way.
In our view, the Group grievance befog us does not fall vdthin thc parameters of Article
32.09. The grievous a~ not, as a g~oup, ~ ~ by one specie incideng nor at~ th~
individual members of tho group similarly situated or ~m entitled to the _~me l'em~'dy. That
would depend upon their individual ¢ircumstan~ and what may or may not have been said to
No doubt all of the employees we~ "affect~~ by the early leaving assistance plan, in the
sense that it was made aw!!_~hle to all employees. However, thst is no ~t from a hyoff(or
indeed, budget cuts) which may have wid~ ramificaiioas for a number of employes. But that
does not mean that every problem flowing from a layoff can be dear with as a ~Group
grievRn, ce', on the theory that, had be~n no layoff, there would haw been no problem affecling
'x..~
2O
individual employees. Under this collective agreemeat, those ~ons have to be wodced
out through individual grievances unless the cizoanstances fall within the openin_ g words of
Article 32.09. And in our view, this Group grievance does not.
· In view o£the conclusion that we have reached with t~spect to the form of the gdevaa~
it is unnecessary to comment on the employer's other argument or consider whether the
employee complaints tb.~? surfaced/n this case would be (or might have been) arbitrable as
ind/vidual/rievauces. Nor is it necessa~ to consider the cases in which it was held that
employees ~mot grieve about matte~ that ate not spelled out in the coile~-'tive agreement. That
kind of determination is best made in the context of pazticular facts, and obiter comments by this
panel would serve no useful purpose.
Wha{ can bc said - and all that needs to be said for ~ purposes - is that this
particular grievance is not arbitrable, because it does not meet the v~quirement for a ~3roup
grievance" spelled out in the collective agieement. It is ~mnecessard to deal with the employer's
second and more substantive objection or the authorities relied on to support that position.
For the foregoing reasons, this Cuoup grievance is dismissed.
Such dismlssa! is, of course, without prejudice to any fights which the employee
21
m~rnb~rs'off ~ group may hav~ as individuals; and likewise without prejudi~ to any fights
which individuals may have under any statute or in any other forum. We decide only that, for thc
reasons oudined above, this particular 'Group grievance*' is not arbitrable.
DATED AT TORONTO, THIS 13th DAY OF AUGUST, 1998
I d/ssertt ~1oh~.M¢ldanus"
I concur in thc t~sult
(See below *) "Barry l~th~son' .
*A_ddendmn ofBoardMmnber l~theson '
I have concurred in the Award of the Chair, and agree with those reasons for dismissing
this Group grievance. However, I would have found in addition (as was also argued by thc
College) that the underlying subject matter of the gri~rance is not "arbitrable", becau~ there is
no provision of tiz: coll~tiv¢ agreement governing the early leaving plan.
~Barry Mnrheson'