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HomeMy WebLinkAboutUnion 15-12-07IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE OF APPLIED ARTS & TECHNOLOGY (“College”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) ARBITRATION BOARD: Jasbir Parmar, Chair Ann Burke, Employer Nominee Sherril Murray, Union Nominee On Behalf of the College: Wallace Kenny, Counsel Janice Beatty Rick Webb On Behalf of the Union: Nicole Mihajlovic, Grievance Officer Lynn Dee Eason, President, Local 613 Allan Kary, Steward This matter was heard on October 19, 2015, in Sault Saint Marie, ON. 1 I. INTRODUCTION 1. The issue in this case is whether the College contravened the Union’s collective agreement right to represent its members in the grievance procedure. 2. The issue arose when Mr. Turco, the Chief Steward, asked via email to arrange a meeting between Mr. Turco, Mr. Holley (a member of the bargaining unit), and Mr. Menier (Mr. Holley’s immediate supervisor). The purpose of the meeting was to discuss an issue Mr. Holley had with respect to job classification. Mr. Turco was clear that his request was under Article 32.01 of the collective agreement, which involves the lodging of a complaint prior to a grievance being filed. 3. Mr. Meunier responded, via email, that he was prepared to meet with Mr. Holley to discuss the issue, pursuant to Article 32.01. Mr. Meunier did not agree that Mr. Turco could attend that meeting. 4. It is the Union’s position that the College was required to allow Mr. Holley to have union representation during this meeting. II. RELEVANT COLLECTIVE AGREEMENT PROVISIONS 5. Article 32 of the collective agreement states: Article 32 GRIEVANCE AND ARBITRATION PROCEDURES Grievance Procedure Complaints 32.01 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 ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the employee and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor’s response to the complaints shall be given within seven days after discussion with the employee. 2 Grievances 32.02 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.11C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor’s reply to the complaint. Grievance Meeting An employee shall present a signed grievance in writing to the College President or his/her designee setting forth the nature of the grievance, the surrounding circumstances and the remedy sought. The College President or his/her designee shall arrange a meeting within 15 days of the receipt of the grievance at which the employee, a Union Steward, and an additional representative designated by the Union Local shall be present if requested by the employee, the Union Local or the College. The College President or his/her designee may have such persons or counsel attend as the College President or his/her designee deems necessary. Response The College President or his/her designee shall give the grievor and a Union Steward designated by the Union Local a decision in writing containing reasons supporting the decision within 15 days following the Grievance Meeting. Arbitration Procedure 32.03A Referral to Arbitration 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 be referred to arbitration, by notice in writing given to the College President or his/her designee within 15 days of the date of receipt by the grievor of the decision of the College official. 32.03B If a matter is referred to arbitration, the process contained in this Article shall apply or, by mutual agreement of the College and the Union Local, the process contained in Article 33, Expedited Arbitration Process, may be utilized…. 32.03C … 32.03D … 32.03E … 32.03F … General 32.04A If the grievor fails to act within the time limits set out under the Grievance Procedure or Arbitration Procedure, the grievance will be considered abandoned. 3 32.04B If a designed College official fails to reply to a grievance within the time limits set out, the grievor may process the grievance to the next stage. 32.04C The time limits at any stage may be extended by mutual agreement. 32.04D The time limits set out under the Grievance Procedure or Arbitration Procedure shall be calculated by excluding the period from Christmas Day to New Year’s Day inclusive. 32.04E At a meeting under the Grievance Procedure, the employee may be represented by a Union Steward if the employee desires such assistance. 32.04F The arbitrator/arbitration board may dispose of a grievance without further notice to any person who is notified of the hearing and fails to appear. 32.04G Where the arbitrator/arbitration board determines that a disciplinary penalty or discharge is excessive, it may substitute such other penalty for the discipline or discharge as it considers just and reasonable in all the circumstances. 32.04H It is understood that nothing contained in this Article shall prevent an employee from presenting personally a grievance up to and including a hearing by the arbitrator/arbitration board without reference to any other person. However, a Union Steward may be present as an observer, at any stage of the process, if the steward so requests. 32.04I The College and the Union Local shall keep the other advised in writing of the names of its respective representatives authorized to act on its behalf under the Grievance Procedure. ….. III. PARTIES’ POSITIONS 6. The Union accepts that the meeting at issue falls under Article 32.01 of the collective agreement. However, the Union relies on Article 32.04E. This provision gives employees the right, if the employee chooses, to be represented by a Union Steward “at a meeting under the Grievance Procedure”. The Union notes that the collective agreement does not provide a definition of “the Grievance Procedure”. The Union suggests regard should be given to Article 32 as a whole, which includes the headings. The Union notes that the provision about the complaints process is under the heading “Grievance Procedure”. Accordingly, the Union submits that the complaint stage is part of the grievance procedure, and an employee therefore 4 has the right to be represented by a Union Steward at a complaint stage meeting if the employee chooses. The Union submits this is the plain and ordinary meaning of this language, and it must be given effect. 7. The Union submits that Article 32.04E modifies the manner in which Article 32.01 should be read. It argues that to conclude otherwise would be inconsistent with Article 32 read as a whole. With respect to the fact that Article 32.01 expressly states that mutual agreement is required to have any “other persons” in attendance at that stage, the Union submits that means any persons other than a Union Steward, whose attendance is addressed in Article 32.04E. 8. The Union submits that its position is consistent with the purpose of the provision, which is to provide for union representation. The Union notes that in the previous collective agreement, “Article 32 - Grievance Procedure” had a complaint stage, and then two steps after the grievance was filed. Under that agreement, Article 32.04E provided for union representation at “any Step of the grievance procedure”. By changing Article 32.04E to “any meeting under the Grievance Procedure”, the Union submits the parties were clarifying that union representation was available at any stage of the ‘grievance procedure”, including the complaint stage. 9. Lastly, the Union submits that its interpretation makes sense from a labour relations perspective. It submits that the presence of union representation corrects the imbalance of power in a union member having to deal with directly with an employer on difficult issues. 10. The Union relied on the following authorities: Brown & Beatty, Canadian Labour Arbitration, para 4:2130; Massey-Harris Co. v. U.A.W., Local 458 (1953), 4 L.A.C. 1579; PCL Construction Ltd. v. Construction & General Workers’ (1982), 8 L.A.C. (3d) 49; U.A.W., Local 439 v. Massey- Harris Co. (1947), 1 L.A.C. 68; Hydro Ottawa Ltd. v. I.B.E.W, Local 636, [2007] O.J. No. 1424 (Ont. C.A.); and Thunder Bay Regional Health Sciences Centre – and – O.N.A. (2013), 229 L.A.C. (4th) 251. 5 11. The College begins by noting the basic interpretive principle that all words need to be given meaning, and that different words mean different things. 12. The College notes that Article 32.01 makes no reference to a “meeting”. Rather, it refers to a discussion, which could take a variety of forms (eg. an in-person meeting, telephone call, or email). The only meeting specifically referenced in Article 32 is in Article 32.02 (the grievance meeting). As such, the College submits Article 32.02E, which refers to a meeting, does not actually speak to Article 32.01. 13. The College also relies on the interpretive principle that specific provisions govern general principles. The College rejects the Union’s assertion that Article 32.04E, a general provision (under the heading “General”), amends Article 32.01 which is specific to the complaint stage, such that the article 32.01 requirement for mutual agreement for attendance of “other persons” means the attendance of persons other than the Union Steward. The College notes that Article 32.04E does not actually speak to attendance, and only deals with who can “represent” the employee. The College submits that who can attend at any particular stage is addressed in the provision dealing with that stage. It is noted that Article 32.01 addresses who can attend at the complaint stage, and Article 32.02 addresses who can attend a grievance meeting. Article 32.04E, the College submits, provides for an additional right, that of the steward to actually represent the employee, rather than simply just being present (which right is already set out in Article 32.02). 14. The College submits that this is the proper interpretation of Article 32, as it gives meaning to all the words in the provision as a whole. 15. The College also submits that the changes to the language in Article 32.04E from the previous collective agreement were really just reflecting the change from a two-step grievance procedure (once the grievance was filed) to a one-step process. If in fact the parties were intending to add union representation at the complaint stage, the College submits, they would 6 have removed the “mutually agreed” language in Article 32.01, which is clearly contrary to the concept of a unilateral employee right. The fact that they didn’t should be interpreted as a clear indication they didn’t intend to change that provision and how it operates. 16. The College notes that the purpose of Article 32.01 is set out in the provision itself and remains the same as it always was: to provide a mechanism for the quick resolution of employee complaints. The College submits this purpose is reflected in the design of an informal stage where the discussion is only between the employee and the supervisor, without involvement of others, absent mutual agreement otherwise. IV. ANALYSIS 17. As in all cases where interpretation of a collective agreement is at issue, our task is to give effect to the mutual intent of the parties. It is assumed the parties meant what they said, and as such if the language of the collective agreement is plain and unambiguous, it must be given effect. 18. In the present case, since the heart of the issue is who can attend a discussion at the complaint stage, whether that be in-person or by other means, the start of the analysis must begin with the collective agreement provision which directly addresses that stage. That is Article 32.01, which expressly states that the discussion under this provision shall be between the employee and the immediate supervisor “unless mutually agreed” otherwise. 19. While it is appropriate to read this provision in the context of the Article as a whole, this is the specific provision that deals with the complaint stage and thus must be given significant weight in the interpretive exercise of determining the intent of the parties with respect to this particular stage. 20. Furthermore, when Article 32 is read as a whole, it should be read in a manner that gives meaning to all its parts. While headings can sometimes be useful in interpreting the provisions 7 that fall under that heading, they do not supersede the provisions themselves, particularly when the provisions themselves are expressed in plain and clear language, such as Article 32.01. 21. In our view, the Union’s position, that Article 32.04E means that an employee has the unilateral right to have a union steward present at a complaint stage discussion, fails to give regard to the clear language of Article 32.01, which expressly states the discussion is between two individuals unless there is mutual agreement to allow the attendance of “other persons”. We are also not persuaded by the submission that the parties were referring to “persons” other than a union steward. That conclusion is inconsistent with the first part of that sentence, which states exactly who will be involved in the discussion and makes no reference to a union steward. 22. We find that the College’s interpretation is the correct one, as it gives meaning to all the words in Article 32. Absent mutual agreement, the complaint stage discussion is only between the employee and the supervisor. Article 32.04E does not alter this. Article 32.04E continues to have meaning because it clarifies that the Union has the right not only to attend the Article 32.02 meeting but represent the employee at the meeting if the employee desires. 23. Our conclusion in this respect is consistent with the purpose of Article 32.01, which is set out in the provision itself. The purpose is to give the supervisor a chance to address the complaint as quickly as possible, prior to initiation of the formal grievance process. Thus, Article 32.01 contemplates a relatively informal procedure – a discussion between the employee and the supervisor. The Union retains its ability to become involved and represent the employee at the grievance stage where the process is more formalized with a requirement to hold a meeting with a required number of attendees. 24. It is also consistent with consideration of the most recent changes to the collective agreement. We note that the language of Article 32.01 remains unchanged from the previous collective agreement. In the previous collective agreement, Article 32.04E had nothing to do 8 with the complaint stage. It only provided for union representation at meetings held once the grievance was filed, a process which involved two steps. During the last round of bargaining, the parties agreed to move to a single step once the grievance was filed. Article 32.04E was amended, and the reference to union representation at the “steps” of the grievance procedure was removed. Union representation “at a meeting at any Step of the grievance procedure” was changed to union representation “at a meeting under the Grievance procedure”. 25. In our view, it is not reasonable to conclude that the change to Article 32.04E evidences an intent to include union representation at the complaint stage simply because Article 32.01 falls under the heading of “Grievance Procedure”. Article 32.01 also fell under the heading of “Grievance Procedures” in the previous collective agreement, when, as noted above, Article 32.04’s requirement of union representation had nothing to do with Article 32.01. 26. If the parties had intended to add union representation at the complaint stage at the unilateral request of the employee, the most obvious way to express this would have been to amend Article 32.01, and remove the “mutual agreement” language. The fact that they did not indicates they had no intention to change the meaning of Article 32.01. 27. In summary, we find the proper interpretation of the collective agreement does not provide employees with a unilateral right to have union representation at a discussion under the complaint stage under Article 32.01. In refusing to allow Mr. Turco to be present at such a meeting, the College did not breach the collective agreement. V. DISPOSITION 28. The grievance is dismissed. 9 Dated this 7th day of December, 2015. ___________________ JASBIR PARMAR “Ann Burke” ___________________ ANN BURKE 10 DISSENT With all due respect, this member does not concur with the decision of the majority for all of the reasons put forward by union counsel. While both parties recognize it is advantageous for an employee and his/her supervisor to have discussions about issues affecting one’s employment and attempt to resolve an issue informally, it is unreasonable to interpret the complaint stage as anything but part and parcel of the entire schematic of the grievance procedure. Likewise, it is unreasonable to deny the request of any unionized individual to begin the process of a potential grievance and exclude the bargaining agent. The decision of the majority violates Article 32.04 and offends the very nature of good labour relations. All of which is respectfully submitted, Sherril Murray.