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HomeMy WebLinkAboutBegert 89-09-15 IN THE I~TTER OF ~ ~BI~TION BE~EN: F~S~ CO.GE (Hereinafter referred to as the College) ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (Hereinafter referred to as the Union) AND IN THE MATTER OF THE GRIEVANCES OF~J ~ ~- ARBITRATOR: Gail Brent APPEARANCES: FOR THE COLLEGE: Brenda Bowlby, Counsel Pat Kirby, Dean of Health Sciences Doug Busche, Asst. Dir. of Human Resources FOR THE UNION: S. T, Goudge, Counsel Paddy Musson, Local President Christine Begert, Grievor Tom Geldard Hearing held in London, Ontario on September 8, 1989. DECISION This decision deals with one issue only, which the parties agreed could be submitted to me sitting as a single arbitrator. It was further agreed that the full board of arbitration would reconvene at a mutually acceptable date following the release of this decision to hear and determine the other issues arising in connection with the grievances. For the record, four grievances, all dated September 16, 1988, were filed with me (Exs. iA to iD). For the purpose of determining the issue placed before me, nothing further need be said about them. Also filed with me were two decisions involving the parties made by a board of arbitration chaired by 2 Mr. Kates. For the record, those decisions were marked as Exhibits 2A and 2B. I heard no evidence. As a matter of courtesy I was informed that the College has applied for judicial review of the decisions made by the Kates Board and that the application has not yet been heard. I was also informed that, without prejudice to any position taken or to be taken in the judicial review proceedings, the College would not argue that the decisions of the Kates Board was wrong, and was prepared to accept that those decisions stood unless or until they were quashed. In view of all of the foregoing, I wish to state that the sole basis of my decision in this matter rests on the decisions of the Kates Board and the submissions made by the parties at this hearing. Before dealing with those submissions, I propose to outline the factual framework which gives rise to the issue before me, and which I have taken from the decisions of the Kates Board. The Kates Board dealt with two Union grievances, only one of which is relevant to the issue before me. That grievance, filed on or about February 19, 1986, alleged that the College had violated the dues deduction provision of the collective agreement. In connection with that grievance it was alleged that as of November 5, 1985 the 9rievor had become a full time member of the bargaining unit. The collective agreement before the Kates Board contained the following language in connec- tion with dues deductions (at page 2 of Ex. 2A): 12.01 There shall be an automatic deduction of an amount equivalent to the regular monthly membership dues from the salaries of all employees in the bargaining unit covered hereby. The bargaining unit referred to in Article 12.01 was defined as follows (at page 3 of Ex. 2A): 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers ... all as more particularly set out in Appendix I hereto save and except Chairmen, Department Heads and Directors, persons 3 above the rank of Chairman, Department Head or Director, persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, and other persons excluded by the legislation and teachers, counsellors and librarians employed on a part-time or sessional basis. The Kates Board commenced hearing the grievance on December 19, 1986 and held further hearings on May 21, 1987, May 22, 1987, December 2, 1987 and May 18, 1988. On or about April 25, 1988 the College took action which it alleged affected the 9rievor's status. The Kates Board was not informed of this action before it issued its first award (Ex. 2A). On July 22, 1988 the Kates Board issued its unanimous award. What is relevant to the determination of this matter is that after an exhaustive examination of the circumstances it was concluded that the grievor was originally hired as a sessional employee of the College in November, 1984 and that she became a full-time member of the bargaining unit one year later. At page 38 of the award (Ex. 2A) the following declaration was made: ... we declare that Ms. Begert upon her anniversary date as a sessional employee achieved, having regard to Appendix III, Articles l(a) and l(d) of the collective agreement, permanent employee status as a full time member of the academic bargaining unit. There then followed a discussion of the College's objection concerning the timeliness of the grievance. It was concluded that the grievance was timely under the circumstances. The Kates Board then made the following award and direction (see page 40 Ex. 2A): In regard to the dues deduction grievance the Board directs that the College forward an appropriate amount, inclusive of interest, in the way of dues arising out of the grievor's employment status as a full time member of the academic bargaining unit effective November 5, 1985 to the present. In making its award the Kates Board remained "seized for the purposes of the implementation of both directions" (page 42 Ex. 2A). On May 2, 1989 the Kates Board reconvened at the request of the parties because the College had 4 made dues payments only for the period November 5, 1985 to April 25, 1988. The Union was claiming that dues were owed for the period November 5, 1985 to July 22, 1988. Describing what occurred on April 25, 1988, the Kates Board said, at page 2 of Ex. 2B that "effective that date, Ms. Begert's employment was allegedly terminated". It should be noted, though, that the circumstances of that "alleged termination", as outlined in Exhibit 2B, do not involve any allegations of discharge for cause or any misconduct. The parties did not agree that there was a valid termination of employment. Hence, the Union was claiming that it was still owed dues up to July 22, 1988 as ordered, because there was no termination of employment, and the College was claiming that its obligation to remit dues ended on April 25, 1988 when the active employment relationship ended. The Union wanted the Kates Board to determine the grievor's employment status as of April 25, 1988, and the College insisted that the Board was fut;ctu$ officio and lacked jurisdiction to make such a determination. Regarding the grievances marked as Exhibits iA to iD, the College said: It was pointed out that several grievances have since been presented to the College arising out of the grievor's alleged termination and those issues are properly before or will be before another or other arbitration boards. Accordingly, it was argued that we were duty bound to defer any or all questions relating to the grievor's employment status effective April 25, 1988 to those proceedings. (Exhibit 2B at page 4) On June 20, 1989 the Kates Board issued another unanimous award (Ex. 2B). Because of the significance of the award in light of the issue before me and the submissions of counsel, I will reproduce in full the conclusions which are to be found at pages 5 and 6 of that award: As a matter of jurisdiction we find no merit in the employer's assertion that the Board is functus officio with respect to the issue of determining an appropriate amount payable to the trade union arising out of our direction pursuant to the successful dues 5 deduction grievance. We clearly and purposely indicated in our award, in order that we not be deemed £u~c~u$ officio, that we remained seized for the purposes of the implementation of our directions. Quite simply, as a bald proposition we would have jurisdiction to determine the grievor's employment status, while we continued to remain seized with respect to the implementation of our compensation award, for the period covered by our direction. As the alleged events of April 25, 1988 so directly impacted on the quantum of compensation payable to the trade union in the way of dues we have no doubt that we might properly intervene to determine the employ- ment status issue pursuant to our retained jurisdiction to implement our direction. But as the employer's argument suggested, the College does not want this Board to determine that issue. It could have raised the matter on the last day of hearing on May 18, 1988, and for reasons best known to itself, it forewent that opportunity. Notwithstanding what appears to us to have been an obvious waiver of that oppor- tunity to raise the issue at a more opportune time the trade union invited the employer to justify its calculation of compensation by our determining the employment status issue. The College refuses to do so. At all material times the College has taken the advice of and has given instruction to experienced counsel. We hold that counsel's argument is patently wrong in the assertion that our status is fuuctus offici~ with respect to deciding issues raised with respect to the implementation of our direction. Moreover, for like reasons, we do not hold the College's position is correct when it argues that we are duty bound to defer to another arbitration board the employment status issue. In other words, the College cannot have it both ways. It cannot rely upon the events of April 25, 1988 in order to abridge the scope of our direction while at the same time argue that we are without jurisdiction to resolve the question that has caused it to deviate from our order. Accordingly, we see no reason, given that ample opportunity has been extended the College to justify its calculations in the implementation of our direction, why we should not simply reaffirm our original direction. In other words, as far as this Board is concerned there has not been anything advanced by the employer to cause us to change our original direction. That direction is accordingly reaffirmed and we further direct the employer to compute the amount of compensation payable to the trade union effective the date of our original decision. The question before me, simply put, is did the Kates Board determine the 6 legal issue of the grievor's status at least up to July 22, 1988 so that the parties cannot now challenge her status before that date and must be bound by that finding? The Union's position is that as a matter of law the grievor was a full- time employee of the College as of July 22, 1988, and that that issue is no longer open to challenge. It argues that that conclusion must follow because the issue is res jud3catabetween the parties and because the College waived its opportunity to challenge the conclusion before the Kates Board on the occasion of the hearing leading to the June 20, 1989 award [Ex. 2B~. The Union says that the main issue in dispute was the grievor's status, and that the consequence of finding that she was a full-time employee led to the order to pay dues from November 5, 1985 to July 22, 1988. It argues that the only basis on which one could have concluded that dues were owing was the finding that the grievor had the requisite status. The Union says that the parties are bound by that decision and that I am bound by the decision since it involves the same parties, the same collective agreement, and exactly the same issue that was before the Kates Board. In support of the Union's proposition I was referred to Re Phillips Cables Ltd. and United Electrical, Radio and Machine Workers, Local 510 (1977), 16 LAC{2d) 225 (Swan) and Re Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1985], 21 LAC(3d) 346 (Saltman). The Union also argues that the College waived its opportunity to challenge the finding when it consciously refused to raise the matter of the grievor's post April, 1988 status before the Kates Board when it reconvened in May, 1989. It argues that to allow the College to raise the matter now would be an abuse of the arbitration process. 7 The College takes the position that the arbitral jurisprudence is clear that the substantive issues crystallize as of the date of the grievance and that in the case before the Kates Board the substantive matters crystallized on February 19, 1986. It further takes the position that all matters dealing with continuing liability and remedy are procedural. It therefore argues that the substantive issue of whether the grievor was a full-time employee of the College crystallized on February 19, 1986, all of the evidence placed before the Kates Board dealt with the period before that date, and objections would have been raised had any evidence that post-dated the grievance been led. It says that the events of April, 1988 are an entirely distinct event which occurred days before the final day of the hearing, and that the Kates Board did not deal with any evidence over which it had no jurisdiction. It asserts that the jurisdiction of the Kates Board was determined by the collective agreement and the grievance before it, and that it cannot be suggested that an issue of status which arose subsequent to the hearing was a proper issue before the Kates Board. The College points out that the grievances before me are new grievances which raise a new issue and must be determined in light of a subsequent collective agreement, and that the Kates Board did not deal with that issue. It says that the proper action for the Kates Board to have taken would have been to have recognized that there was a separate action regarding status which could have affected its direction and to have ordered payment only up to the point of dispute pending resolution of the later grievances. The College also disputes that it waived its right to have the post April, 1988 status issue resolved. It says that the Kates Board did not determine the issue of status as of July, 1988 in its second award so the direction had to stand. It says that its position was always that the issue 8 was properly before another board as a substantive one, and that it was not appropriate to deal with it as an aspect of a remedial issue. It argues that the only substantive issue before the Kates Board was the grievor's status in 1985-86, and not in 1988. I have considered the two awards issued by the Kates Board and the submissions of the parties. This is a rather unusual situation in my ex- perience. Usually arguments about res jud3ca~aoccur in situations where one party is alleged to be trying to file subsequent grievances dealing with an issue which has already been decided. In this case, it is not alleged that the grievances raise an issue which has already been determined, but that in dealing with the grievances one must take as determined that the grievor had a particular status from November, 1986 to July, 1988 inclusive. In looking at the issue placed before me I must accept that the Kates Board had the jurisdiction to make the direction that it made in its July, 1988 award (Ex. 2A) and reconfirmed in its June, 1989 award (Ex. 2B). The question of that Board's jurisdiction is not one which I can determine. That Board made a direction which ordered the College to remit dues to the Union for a given period. The basis for the order was the finding that the grievor had obtained the status of full-time employee in November, 198§, and presumab- ly, the absence of any evidence to indicate that status had changed. If, as I must in this decision, one accepts that the Kates Board had jurisdiction to make an order which went beyond the date of the grievance, then I believe one must also accept that the Kates Board had the jurisdiction, as it found it had in the passages of its second award set out above, to determine the outer limits of the applicability of that order. In order to make an order that dues must be paid to the Union, one must first determine 9 whether the grievor belonged to the class of people for whom dues must be remitted. That class, as defined in the collective agreement before the Kates Board, was limited essentially to full-time academic employees of the College. Once membership in the class is lost the obligation to remit dues ceases. If a board of arbitration orders the College to pay dues for someone who is not a bargaining unit member, it exceeds its jurisdiction. Given all of this, in order to prevent the Kates Board from exceeding its jurisdiction one must be prepared to submit evidence to show what the limit of the remedial order should be. If one does not do so, then, having accepted that the remedial order can encompass a time frame which extends beyond the date of the grievance, one also leaves a board arbitration with no way of making an order that it knows is within its jurisdiction. In the matter before the Kates Board the question put squarely before the Board when it reconvened in May, 1989 was whether or not the College had to pay dues for the period between April 25, 1988 and July 22, 1988. The only reason advanced for non-payment of dues during that period was that the grievor had ceased to be a member of the class of people for whom dues had to be remitted. The College refused to let the Kates Board determine that issue. At page 6 of the award (Ex. 2B) in the following passage: At all material times the College has taken the advice of and has given instruction to experienced counsel. We hold that counsel's argument is patently wrong in the assertion that our status is f~nctu$ off3c3o with respect to deciding issues raised with respect to the implementation of our direction. Moreover, for like reasons, we do not hold the College's position is correct when it argues that we are duty bound to defer to another arbitration board the employment status issue. In other words, the College cannot have it both ways. It cannot rely upon the events of April 25, 1988 in order to abridge the scope of our direction while at the same time argue that we are without jurisdiction to resolve the question that has caused it to deviate from our order. 10 the Kates Board clearly held that it had jurisdiction to deal with the 9rievor's status as of April 25, 1988. In the paragraph that follows, the Kates Board reaffirmed its original award and directed the College to make the payments for the period April 25, 1988 to July 22, 1988 in these words: Accordingly, we see no reason, given that ample opportunity has been extended the College to justify its calculations in the implementation of our direction, why we should not simply reaffirm our original direction. In other words, as far as this Board is concerned there has not been anything advanced by the employer to cause us to change our original direction. That direction is accordingly reaffirmed and we further direct the employer to compute the amount of compensation payable to the trade union effective the date of our original decision. I believe that this is a clear finding that, absent any evidence that the grievor's status had changed on April 25, 1988, and given its jurisdiction to determine the status issue, the Kates Board was ordering the College to remit dues beyond that date. What underlies this decision and is necessarily implicit in it, if the Kates Board was not to exceed its jurisdiction, is the finding that the grievor was a member of the class for whom dues must be remitted on April 25, 1988 and remained a member of that class until July 22, 1988. I therefore find that the Kates Board determined that the grievor's status for the period November 5, 1985 to July 22, 1988 inclusive was that of a full-time bargaining unit employee. The parties are bound by the Kates award unless it is quashed. There- fore, they are bound to consider that the grievor was an employee for whom dues must be remitted for the period November 5, 1985 to July 22, 1988; that is, they are bound to consider that the grievor was a full-time academic employee for that period. The very issue which the College seeks to place before me involves her status during part of that same period. In view of the Kates awards I believe that the College can not do this. That matter has been 11 decided by the Kates Board in a manner which has finally determined the issue of the 9rievor's status as between the parties up to July 22, 1988. I further find that the College had the opportunity of arguing the matter of the grievor's status after April 25, 1988 on May 2, 1989, and that the Kates Board found that it had jurisdiction to deal with the issue. Therefore, I would have to agree that, even if in reconfirming its award the Kates Board did not determine the question of the grievor's status for the whole period encompassed by its order, the College would have to be taken to have waived its right to raise the issue of her status prior to July 22, 1988. Naturally, this conclusion, like my primary conclusion, is dependent upon the Kates Board's awards not being quashed. For all of the reasons set out above, I find that the issue of the grievor's status prior to July 22, 1988 cannot be raised in the proceedings before me. DATED AT LONDON, ONTARIO THIS 15TH DAY OF SEPTEMBER, 1989. Gall Brent