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HomeMy WebLinkAboutKalyn 94-03-07 GRIEVANCE AWARD Headnote 93E036 HEADNOTE GSB OPSEU /" 93E03.~': OPSEU Loc. ~"---1-t0'/ Kalyn (OPSEU) and Fanshawe College Award dated March 7, 1994 (Bendel) Timeliness - Waiver Arbitrability - Benefits Plans under Prior, expired collective agreements The grievor filed his grievance when the College recalculated his sick l~ave credits. The grievor had been absent on LTD benefits for many years prior to his return to active teaching employment. Initially, the College provided sick leave credits for all years that he had received LTD benefits but, later, reversed its position and refused to credit the grievor with any sick leave credits for the years he received LTD benefits. The College raised two preliminary objections regarding timeliness of the grievance and arbitrability of benefits .pursuant to sick leave plans under prior, expired collective agreements. Preliminary objections dismissed: The board of arbitration agreed with the Union that the College's failure to raise the timeliness issue during the grievance procedure amounted to waiver of procedural requirements. The board of arbitration rejected the College's argument based on Cambrian College (July 6, 1987, unreported, Samuels) that waiver of procedural requirements amounted to amendment of a collective agreement which could not be done by a single college. The board of arbitration distinguished between waiver of procedural requirements and amendment of a collective agreement. The board of arbitration ruled that the issue regarding benefits accrued under prior, expired collective agreements would be dealt with on the merits of the case. The collective agreement language regarding sick leave credits could refer to a '"oookkeeping" entry for credits previously assigned or to fresh calculation of the credits with reference to the prior CSL plans under the expired agreements. The parties were invited to address those issues at the hearing on the merits. Nick Coleman Fanshawe College, College, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Ren~ St. Onge, College Nominee John D. McManus, Union Nominee APPEARANCES: For the Union: Nick Coleman, Counsel Gary Fordyce, Chief Steward Stephen Kalyn, Grievor For the College: Robert J. Atkinson, Counsel Judy Lamoureux, Personnel Assistant Hearing held in London, Ontario, on January 18, 1994. INTERIM ARBITRAL AWARD In his grievance, Stephen Kalyn, a professor, claims that his sick leave credits have not been properly calculated. The underlying dispute between the parties is whether sick leave credits accrued during the grievor's absence on long-term disability. However, the College has raised two objections to the board's jurisdiction to deal with this grievance, and counsel were .agreed that the board should issue a decision on the 'objections before hearing the merits of the grievance. The College's position is that the grievor is alleging a violation of expired collective agreements, and not the collective agreement pursuant to which the board was constituted; such an allegation, it maintains, is not within the jurisdiction of this board. The College further argues that the grievance is untimely. II The facts, as they relate to the objections, are not in dispute. The grievor was absent from work from 1982 until 1990 as a result of illness. During that period, he first exhausted his - 2 - sick leave credits and then, starting in 1983, received benefits under the long-term disability plan. He returned to work in 1990, and is planning to retire later this year. Upon his return to work in 1990, he received a pay-stub from the College showing that he had 140 sick leave days to his credit. This could only have been calculated on the basis that he had continued to accumulate credits while on long-term disability. In May 1991, the College sent him an "Employee Benefit Notice", informing him that he had 139 days in sick leave credits. (During the year, he took some sick leave.) This information was confirmed on a pay-stub in September 1991. In May 1992, however, the grievor received a new "Employee Benefit Notice", in which it was stated that he had only 41.67 days to his credit. This was followed, in June 1992, by a memorandum from a payroll officer, in which the grievor was advised that sick leave credits do not accumulate during the period an employee is on long-term disability, which explained the decrease in his credits. In October 1992, the information given to the grievor in June was confirmed in a pay-stub. In February 1993, the grievor informed Mr. Michael Hoare, the chairperson of his department that, despite several conversa- tions with various personnel officers, he was dissatisfied with the - 3 - College's position on his sick leave credits. Mr. Hoare raised the matter on the grievor's behalf with Mr. Peter Myers, the Director of Human Resources. There ensued a meeting between the grievor and Mr. Myers on March 25, 1993, and a subsequent memorandum from Mr. Myers on April l, in which he confirmed that there was no accrual of sick leave credits for an employee on long-term disability. On April 15, 1993, the grievor registered an informal complaint on the matter with Mr. Hoare, who immediately referred it to Mr. Myers. The same day, Mr. Hoare responded to the grievor in the following terms: Further to our meeting today, Peter Myers responded to my e-mail. Given that I, as your Chair, cannot resolve this matter since it is outside my authority and given that the issue is a policy matter, in order to expedite resolution, I wish to propose to you that we mutually agreed [~S] to waive the complaint stage and step one grievance stage. This would allow the matter to be referred directly to the President as a step two griev- ance. Please let me know in writing if you are in agreement with this plan and if so, you must send your grievance in writing to the President. On April 20, the grievor submitted his grievance in the following terms: I grieve that the College has not properly calculated my sick leave credits.. As of today, my credits should be 179 days, not 65.75 days. - 4 - As a remedy, I expect the College to restore my sick leave credits to 179 days. A meeting was scheduled for April 29 to discuss the grievance. In the form memorandum notifying the grievor of the meeting, it was noted that the "meeting is scheduled within the time limits outlined in the collective agreement". On May 27, a reply to the grievance was given. It denied the grievance and made no reference to the grievance being untimely. The grievor then referred the matter to arbitration. In due course, by a memorandum of December 2, 1993, the Council of Regents informed the chair of this board that he had been scheduled to act in this capacity, that the hearing had been fixed for January 18, 1994, that Mr. St. Onge was the College nominee and that the union would advise him regarding its nominee. On January 6, 1994, counsel for the College gave notice to the union that the College would be making various objections to the board's jurisdiction. - 5 - III While the grievor was on long-term disability, five successive collective agreements were in effect, all but one for a two-year period. Each provided for what is referred to as a "cumulative sick leave", or "CSL", plan. None of these agreements was presented in evidence. A new collective agreement for this unit was signed on November 9, 1992, to cover the period from September 1991 to August 1994. It provided, among other things, for a new short-term disability ("STD") plan effective April 1, 1991, which would replace the previous CSL plan. As part of the introduction of the new plan, the agreement allowed employees hired before April 1, 1991, to use any credits standing to their credit under the CSL plan as a "lump-sum gratuity" on the termination of their employ- ment, just as they had been able to do before April 1, 1991. The following are the provisions of the current agreement relating to the new STD plan, to the extent that they are relevant to the preliminary objections: Article 17 SHORT-TERM DISABILITY PLAN (STD) Participation 17.01 A Effective April i, 1991, all full-time employ- ees shall be covered by this plan. - 6 - Benefit Year 17.01 D The benefit year shall be September 1 to August 31. For the balance of the benefit year expiring August 31, 1991, an employee will be credited with the unused credits, if any, standing in the name of the employee on April 1, 1991, under the terms of the previous Cumulative Sick Leave (CSL) Plan, where applicable... Expiry of Credits 17.01 G Subject to 17.01 H, upon retirement, layoff or termination of employment, any credits standing in the name of the employee shall be cancelled and shall be of no effect. Protection of Existing Rights 17.01 H Notwithstanding 17.01 G, employees hired before April 1, 1991, shall be entitled to utilize available credits (or portions thereof) at the time of retirement, termination of employment or layoff as a lump-sum gratuity calculated in accordance with the terms of the pre-existing Cumulative Sick Leave Plans, where applica- ble and where the employee is eligible and shall not exceed the amount of one-half the employee's annual salary as of the date of separation. Counsel also referred the board to various clauses in the agreement relating to grievance procedures: - 7 - Article 32 GRIEVANCE PROCEDURES Complaints 32.02 It is the mutual desire of the parties 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 20 days after the circumstances giving rise to the complaint have occurred or have come or reasonably ought to have come to the attention of the employe~ in order to give the ~mmediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the employee and the immedi- ate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the employee. Grievances 32.03 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the defini- tion under 32.12 C) in the following manner and sequence provided it is presented within seven 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's written decisions at each step shall contain reasons supporting the decision. In the event that any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfacto- rily 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. - 8 - 32.04 A Any matter so referred to arbitration, includ- ing any question as to whether a matter is arbitrable, shall be heard by a Board of three arbitrators... 32.04 C The finding of the majority of the arbitrators as to the facts and as to the interpretation, applica- tion, administration or alleged contravention of this Agreement shall be final and binding upon all parties concerned, including the employee(s) and the College. 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 there- with; 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 G~ievance Step, the grievance will be considered abandoned. IV On behalf of the College, Mr. Atkinson argued that it was an established principle that an arbitration board is only autho- rized to remedy violations of the collective agreement pursuant to which it was appointed. He referred to the following cases: Re Goodyear Canada Inc. and United Rubber Workers, Local 232 (1980), 28 L.A.C. (2d) 196 (M. Picher), Re United Steelworkers and Interna- tional Nickel Co. of Canada Ltd. (1970), 22 L.A.C. 286 (Weatherill), Re Parkwood H~s_~tal and Ontario Nurses' Association - 9 - 1984), 14 L.A.C. 215 (Weatherill), Re Romi (Division of Ault Foods Ltd.) and United Food & Commercial Work~_ Local 175 (1986), 25 L.A.C. (3d) 377 (Weatherill), and Re Georqe Brown Colleqe and Ontario Public Service Employees Union (unreported award of arbitrator Carter, dated December 12, 1988). The language of the collective agreement in this case - particularly Articles 32.03, 32.04 A, 32.04 C and 32.04 D - reflected and reinforced this principle. A jurisdictional objection of this nature can be raised by a party at any time and cannot be waived: Re Hawker-Siddele~ Canada Inc., Orenda Division and International Association of Machinists & Aero~pace Workersx District Lodqe 117 (1991), 21 L.A.C. (4'th) 289 (Joyce). The grievance, according to Mr. Atkinson, challenges the College's failure to allocate sick leave credits to the grievor between 1983 and 1990, while he was on long term disability. It thus raises questions about the interpretation or administration of prior collective agreements. He asserted that, under the previous CSL plan, employees were credited with sick leave days on September 1 every year, which was a discrete act taken each year by the College. The failure to allocate credits for the period from 1983 to 1990 could not therefore be viewed as a potential violation of the current collective agreement. The situation at the root of the grievance occurred before the current agreement came into effect. Although Article 17.01 H referred to the protection of an - 10 - employee's accrued rights under the CSL plan, it did not create any new rights for employees and did not enable an employee to question the amount of credits allocated under the CSL plan. In the alternative, Mr. Atkinson argued that the griev- ance was untimely. He noted that the time-limits in this agreement are mandatory and that no statutory authority is conferred on arbitrators in this sector to relieve against failure to comply with time-limits. The grievor was aware of the College's position in May 1992, but did not present a grievance until April 1993. Although the College did not object to the timeliness of the grievance until the eve of the arbitration hearing, it has been held that there can be no waiver of grievance procedure time-limits under this collective agreement: Cambrian Colle~ and Ontario Public Service Em~o_yees Union (unreported award of arbitrator Samuels, dated July 6, 1987). Mr. Coleman, on behalf of the Union, accepted, for the purposes of this arbitration, that our jurisdiction is limited to remedying violations of the current collective agreement. It was the Union's Position that the grievance alleges a violation of the current collective agreement, specifically Articles 17.01 D and 17.01 H thereof. Although those provisions refer to the previous CSL plan, they create an obligation for the College, and it is that obligation ~hat the grievor seeks to enforce. It is no objection - 11 - to the arbitrability of a grievance that its resolution would require the board of arbitration to examine expired agreements. Counsel cited the following cases: Re Ontario Educational Communi- cations Authori~_and National Association of Broadcast E~R~I~ & Technicians, Local 72 (1976), 11 L.A.C. (2d) 258 (Brent), and ~ ~ional Munici_p_~y of Ottawa-Carleton and Canadian Union of Public Em~l_o_~.~_e_s_u~ocal 503 (1990), 16 L.A.C. (4th) 353 (Haefling). CoDnsel also emphasized that the employer did not inform the grievor until the currency of the present agreement that he would not be credited with sick leave days for the period he was on long term disability. The cases relied upon by the College were distin- guishable, according to Mr. Coleman, in that here the grievor is seeking to enforce a right under the present collective agreement and not under previous ones. On the question of timeliness, Mr. Coleman maintained, firstly, that it was not until April 1, 1993, that the College confirmed that its position would be that no credits accrue during a period of disability..Until then, the grievor had been receiving conflicting statements of his entitlement, and he could scarcely have been expected to grieve earlier. In the alternative, Mr. Coleman suggested that this was a continuing grievance. The dispute between the grievor and the College relates to his gratuity upon his future retirement, and until then the issue is one of account- ing or ensuring that the records are accurate. He cited the - 12 - unreported award of arbitrator Brent in ~_~~in Colle~3- and Ontario Public Service Em~es Union (dated June 10, 1982). In the further alternative, Mr. Coleman contended that the College, in suggesting to the grievor, on April 15, 1993, that he submit a grievance to the Second Step and in failing to raise an objection to the timeliness of the grievance before the eve of the hearing, had waived its right to object to its timeliness. He referred to Re R~SS~ Towers Hotel Ltd. and Hotel and Club_~R~R~s' Union, Local 299 (1973), 4 L.A.C. (~d) 440 (Schiff), Re United Automobile Workers, Local 673, and York Gears Ltd. (1968), 19 L.A.C. 252 (Weatherill), Re Civic Em_p_~oy~es' Union No. 43 and Munic~~_~ Metropolitan Toronto, [1962] O.R, 970 (C.A.), ~R~oration of Cit~ of Vanier v. Canadian Union of Public E~~es, Local 954 (1976), 77 CLLC para. 37 (Ont. Div. Ct.), and Re Rain~ River Health Care and Ontario Nurses' Association (1985), 20 L.A~C. (3d) 331 (Devlin). As regards the award in Re Cambrian Col~, ~, Mr. Coleman argued that the board there had proceeded on the assumption that the collective agreement could not be amended by correspon- dence between one college and the Union, an assumption that is inconsistent with the decision of the Supreme Court of Canada in Isabelle v. Ontario Public Service Em__~o__y_~es Union, [1981] 1 S.C.R. 449. - 13 - V We turn firstly to the College's objection that the grievance was untimely. Counsel for the College conceded that the College's actions in handling the grievance would have amounted to waiver if the employer had been any organizatio0n other than a college. He argued that there was case-law to the effect that waiver was dependent upon an implied amendment to the collective agreement, which was beyond the authority of individual colleges. He relied on Re Cambrian Colle~, ~R~. In Re Cambrian Colle~, the board of arbitration quoted extensively from the award in ~e__~SS~ Towers, ~R~- There the board had noted that the waiver of procedural irregularities in the processing of grievances would sometimes be in the nature of estoppel (at page 443): 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 it might otherwise have satisfied. But, according to the board in ~_~Sy._~~, ibid., even in the absence of estoppel, a party might be precluded from basing objections on procedural irregularities: - 14 - Arbitrators have also long rejected such objections 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. The board added, at page 444, that it had been suggested that this second type of waiver was based on the amendment of the collective agreement: In so far as waiver in the absence of detrimental reliance must rest upon amendment of the collective agreement 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 correspondence setting the date for the arbitration hearing. See Re Int'l Lonq~horemen's Ass'n, Local 1879 and Hamilton Terminal ORerators, ~R~ [(1966), 17 L.A.C. 181 (Arthurs) ]. In Re Cambrian Colle~, the board rejected the argument that this "second branch of waiver" had any application in the case before it: Firstly, even if the award in ~5~_~~ 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 agree- ment, 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 - 15 - in the agreement for the amendment of the grievance procedure by one College. With great respect, it appears to us that the board in Re Cambrian Colle~ misunderstood the award in ~_~S~. Towers. In the latter case, there was no endorsement of the view that waiver of the second type requires the amendment of the collective agreement, merely an acknowledgment that, in the case of Re Int'l ~horemen's Ass'n, there was some discussion of the relationship between waiver and amendment. In fact, in Re Int'l Lon~shoremen's Ass'n, at page 187, there is a powerful refutation of the idea that waiver constitutes amendment: Finally, the union contended that any waiver would constitute an amendment of the agreement, and would therefore have to be in writing as was the agreement itself. If this were so, the writing requirement would be found in the correspondence passing between the chairman and the nominees. However, waiver does not constitute an amendment of the agreement: the agreement survives this proceeding in its original form, with the provisions of art. 5.01 (g) as forceful as they ever were. 'Rather, waiver is a legal barrier to the exercise of the rights in a particular case, erected by the conduct or words of the parties. The reason the rights cannot be exercised is that one party has assured the other that it can ignore the time limits, either by failing to object when the hearing date was fixed, or by the act of its nominee in agreeing to the date. It would now be unconscionable to allow the retraction of this assurance to the detriment of the innocent party. If there is confusion on the relationship between waiver and amendment, it is because the term "waiver" is used in several - 16 - different ways. See Treitel, The Law of Contract (Fifth Edition), at pages 81 to 88. To distinguish the species of waiver found in the context of procedural irregularities in the processing of grievances, Treitel uses the word '"forbearance" for it. It is abundantly clear that forbearance is a unilateral act, not a consensual one. This is what Professor Ewart wrote on the matter, in Waiver Distributed (1917), at page 13 (quoted by D'Aoust and DubS, L'estoRpel et les laches en_~prudence arbitrale (1990 , at page 24'): [c]ommencing with "waiver", we may say that (if it is anything) it is (it certainly used to be) of unilateral character. The possessor of some property throws it away. The effect may be that someone else is benefited, but "waiver" has no relation to benefits. The doctrine of waiver of procedural irregularities is therefore not based on any agreement to amend the procedure. A board of arbitration can apply the doctrine since it has the power to control its own procedure and prevent abuses thereof. This is how Evershed, M.R., described the rationale of the doctrine in ~ Dulles' Settlement Trusts, [1951] 2 All E.R. 69 (C.A.), at pages 70-71: It is, of course, plain that where a question of juris- diction arises a man cannot both have his cake and eat it. He cannot fight the issue on the merits, and at the same time preserve the right to say, if the worst comes to the worst, that the court has no jurisdiction to decide against him, and he cannot, consistently with that - 17 - principle, take any step unequivocally referable to the issue on the merits. In Re Civic EmR~ees' Union No. 43, ~R~, Aylesworth, J.A., put it this way, at page 974: In any event, appellant having participated in the formation of the Board and submitted its case to arbitra- tion before that tribunal, it ought not now to be heard upon the objection thus taken. No tribunal, whether a civil court or a statutory or consensual board of arbitration, will readily tolerate a party playing fast and loose with its process, attempting to "both have his cake and eat it", as Evershed, M.R., put it. This, it appears to us, is the basis for the doctrine of waiver of procedural irregularities, not some implied amendment to the collective agreement. The College has conceded that its acts would have constituted waiver of any procedural irregularities if it had had the power to amend the collective agreement. Since we have found that waiver is not dependent on the amendment of the collective agreement, we conclude that the College did waive any procedural irregularities, and this objection to our jurisdiction must be dismissed. - 18 - VI The College's other jurisdictional objection is that the grievor is trying to enforce the terms of an expired collective agreement. In this arbitration, the union does not dispute the proposition that our authority is limited to resolving grievances relating to the agreement under which we were constituted a board of arbitration. However, it says that this grievance aims for nothing more than the enforcement of Article 17.01 D of the current agreement, and particularly the second sentence thereof, which reads as follows: For the balance of the benefit year expiring August 31, 1991, an employee will be credited with the unused credits, if any, standing in the name of the employee on April 1, 1991, under the terms of the previous Cumulative Sick Leave (CSL) Plan, where applicable. As we read Article 17.01 D, the obligation created there is to credit the grievor with a certain number of credits. The clause assumes that each employee's entitlement was quantified under the previous CSL plan and that a certain number of credits are "standing in the name of the employee". This is the language of bookkeepers. A bookkeeping entry was made pursuant to the CSL plan, the Article is telling us. The precise number of credits to - 19 - which each employee is entitled is regarded by this clause as having already been determined: all the calculations and interpre- tations, the clause implies, have been made and opposite the name of each employee is a number which is the product of that exercise. If some such bookkeeping entry was made in favour of the grievor prior to April 1, 1991, the College's obligation under the current agreement, it would appear to us, is to transfer those credits from the old regime, the CSL, to the new one, effective April 1, 1991, so that the grievor can avail himself of those credits under Article 17.01 H. If, contrary to what is envisaged by Article 17.01 D, nothing in the nature of a bookkeeping entry existed as of April 1, 1991, the obligation to credit the grievor with a certain number of days would have to be given a different meaning. We noted earlier in this award that we were not provided with copies of the old collective agreements. Nor were we given any information about the administration of the old CSL plan. Unless the parties present some evidence relating to the old CSL plan, including its administration, we do not believe we can carry our examination of the College's principal jurisdictional objectional any further. Unless we know what meaning to attribute to the words "unused credits, if any, standing in the name of the employee on - 20 - April 1, 1991, under the terms of the previous Cumulative Sick Leave (CSL) Plan", as they appear in Article 17.01 D, we cannot rule on whether the grievor is seeking to enforce Article 17.01 D of the present collective agreement or the CSL plan provided for under the previous agreements. These words cannot be interpreted in a vacuum. Are they to be understood literally as a reference to a particular bookkeeping entry? Or are they to be understood as a reference to each employee's entitlement under the CSL plan, even though that entitlement may not have yet been quantified? For this reason, we feel that further evidence is needed. In our view, the appropriate way to proceed would be for this board to reserve a decision on the College's jurisdictional objection and hear full evidence and arguments on the merits of the case, while permitting each party to supplement its case on the jurisdictional objection. A new hearing date will be set after consultation with counsel. DATED at Thornhill, Ontario, this 7th day of March 1994. Michael Bendel, Chair concur~-~~ College Nominee John D