HomeMy WebLinkAboutUnion 14-08-26Between:
IN THE MATTER OF AN ARBITRATION
Pursuant to the Labour Relations Act, S.O. 1995
PROVIDENCE CARE CENTRE (PROVIDENCE CARE)
(the "Employer")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
on behalf of its Local 431
(the "Union")
Re: Policy Grievance - Early Retirement Allowance, Article 44.12(a)
OPSEU File # 2013-0431-0024
APPEARANCES
For the Employer
Ron Pearson, Counsel
Rob McDonnell
Indira Naraine
Arash Farzam-Kia
PRELIMINARY AWARD
PAULA KNOPF - ARBITRATOR
For the Union
Andrew Reeson, Counsel
Dan Anderson
The hearing of this matter was held in Kingston, Ontario on August 19, 2014.
The Union filed a policy grievance seeking an interpretation of the provision in the
Collective Agreement that provides for an Early Retirement Allowance in the event of a
long-term layoff. The parties have gone through several restructuring exercises in the
recent past and have a continuing disagreement about the meaning of the word
"classification" for purposes of determining entitlement to the Early Retirement
Allowance. However, there is no outstanding or actual pending claim regarding any of
the past restructurings. Because of this, the Employer has raised a preliminary
objection to the hearing of this case, arguing that the issue is moot and/or that there is
no good purpose in proceeding with the litigation of this case. Accordingly, the parties
asked for the preliminary objection to be dealt with at the outset, and elected to proceed
by way of submissions based on the following Agreed Statement of Facts:
At all material times, the parties' relationship was governed by a collective
agreement.
2. The Parties agree that arbitrator Paula Knopf has jurisdiction to decide this
preliminary matter in accordance with the Collective Agreement between the parties,
and the Ontario Labour Relations Act
3. The grievance is dated November 4, 2013.
4. The parties agree that the issue -in dispute is whether out-patient and community
nursing classifications are the same classification as in-patient nursing
classifications for purposes of offering Early Retirement packages in accordance
with article 44.12(a).
6. Article 44.12(a) states:
Offering Early Retirement Allowance
At the time of issuing notice of long-term layoff pursuant to this Article, the Hospital
will offer early retirement allowance to a sufficient number of employees eligible for
early retirement under the Hospital's pension plan, in order of seniority, to the extent
that the maximum number of employees within a classification who elect early
retirement is equivalent to the number of employees who would otherwise be subject
to layoff under Article 44.
6. Providence Care Centre (Providence Care) provides non-acute health care in
Southeastern Ontario as well as related research and education, through its
affiliation with Queen's University. Providence Care specializes in the provision of
Aging, Mental Health and Rehabilitative Care.
7. Providence Care was incorporated in 1991. It currently has 3 sites in Kingston: St.
Mary's of the Lake Hospital (SMOL); Mental Health Services Hospital (MHS); and
Providence Manor.
8. MHS is a regional provider of specialized services to adults with serious and
persistent mental illness. MHS is a 120 bed facility that offers treatment through 3
clinical program areas. Each program offers a continuum of care — inpatient,
outpatient, and community programs.
9. The inpatient programs at the MHS hospital at 752 King Street West include:
■ InpatientAdult Mental Health -provides specialized treatment for adults with
schizophrenia, mood disorder, personality disorder and dual diagnosis along with
providing educational programs for individuals who are challenged with a serious
mental health disability.
Forensic Mental Health - provides specialized assessment, treatment,
rehabilitation and follow-up consultation for people with severe mental illness
who come into conflict with the law.
■ Senior's Mental Health -offers inpatient, outpatient and community mental health
care for older persons with severe mental illness, cognitive impairment and
behavioural disturbances.
10. There are two outpatient services (provided at 752 King Street West to clients on an
outpatient basis):
• Forensics — Forensic Transitional Case Management
• Seniors Mental health — Special Ambulatory Care
11. There are community programs providing services to clients in the community
throughout our LH1N area as follows
• Community Integration Program (C1P) (Montreal Street)
• PsychoSocial Rehab Program (PSR) (Montreal Street)
• Homes For Special Care (Montreal Street)
• VOCEC (Montreal Street)
• Community High Intensity Treatment Team (MHS)
• Community Treatment Orders (Brockville)
Mood Disorders Services (MHS)
• Personality Disorders Services (Bagot Street)
• Dual Diagnosis Consultation Outreach (Concession Street)
• Dual Diagnosis Consultation Outreach (Brockville)
• Dual Diagnosis Consultation Outreach (Belleville)
• N. Frontenac Outreach Team (Sharbot Lake)
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Geriatric Psychiatry Outreach Team (Belleville)
• Geriatric Psychiatry Outreach Team (Napanee)
• Geriatric Psychiatry Outreach Team (Kingston)
12 -There are no current or outstanding disputed fact situations between the parties in
relation to the issuance of early retirement offers.
13. On August 8, 2013, the Employer provided the Union with notice of an inpatient
hospital restructuring that impacted the following positions:
Admissions Coordinator
1
Charge Nurse
2
Ward Clerk
2
Food and Nutrition Assistant FT
1
Food and Nutrition Assistant PT
2
Cleaner FT
1
Leisure Life Skills Worker
4
RPN FT
40
RPN (PT)
7
Total 1 60 1
14. On November 12, 2013, Darlene Steed, an RPN with the PSR Community Program
filed an individual grievance alleging that she had been discriminated against and
unfairly treated by the Employer.
15.The grievance was settled by the parties on the basis of an MOA that resulted in the
grievance being withdrawn.
16. The MOA states:
WHEREAS, the parties disagree on what constitutes a classification for the
purposes of administering the Early Retirement package provisions of the Collective
Agreement, and,
WHEREAS, the parties wish to resolve this disagreement for the purposes of this
restructuring;
17.The community programs include a number of regulated health positions including
Occupational Therapists, Social Workers, Registered Nurses, and Registered
Practical Nurses.
18.There are approximately 12 distinct job descriptions for Registered Nurse positions
at MHS -- 4 inpatient and 8 outpatient/community — including for example:
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• CHITT RN
• DD Community Mental Health Nurse
• PGS RN Case Manager
• MDU Outreach Clinician
• RN Intake Coordinator
• Forensic Community RN
• Addictions Specialist
• Peer Specialist
19. There are 2 distinct job descriptions for Registered Practical Nurses at MHS (1
inpatient and 1 community).
20.The inpatient Registered Practical Nurse JD and the ACTT RPN JD [were tiled].
21. The parties have processed no fewer than five restructuring events since 2005 that
resulted in layoffs, and prior to this current grievance, and notwithstanding that the
parties have, since that time, disputed the correct interpretation of s.44.12(a), they
have not had to resort to the arbitration process to resolve ERO issues.
22. On July 16, 2014 Providence Care provided OPSEU with notice of further
restructurings — no Registered Practical Nursing or Registered Nursing positions are
impacted by this restructuring (PPL -RN is impacted).
23.There are no other restructuring plans currently under active consideration that
impact on nursing classifications at MHS.
24. Neither party has previously tabled language regarding s.44.12(a) during collective
bargaining.
25. Collective bargaining for the renewal of the current collective agreement begins in
September, 2014.
26. There are numerous occupations not included in the salary schedule to the collective
agreement including:
• Development Services Worker
• Review Board Coordinator
• Professional Practice Leaders
• Volunteer Clerk
• Transportation Clerk
• And other Patient Records and EPR positions.
27. The bargaining process for the current Collective Agreement proceeded as follows:
The Union provided notice to bargain on January 7, 2010 and the bargaining
commenced on October 6, 2010, continuing on 13 separate days until April 24,
2012. Conciliation took place on February 14, 2011 and a "no board" report issued
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on February 24, 2011. An interest arbitration board issued an award on February 11,
2013.
28. On November 14, 2013, Dan Anderson (Local 431 President) met with Indira
Naraine (Director, Human Resources & Labour Relations) and Karin Carmichael
(Administrative Director, Adult Mental Health) regarding the instant grievance. The
Union clarified its interpretation that community positions and inpatient positions fall
within the same classification. The Employer responded by letter dated November
26, 2013.
The other relevant provisions of the Collective Agreement are as follows:
Article 14.1 Intent of this Agreement
It is the intent of the Agreement to adjust as quickly as possible any complaints
or differences between the parties. For purposes of this Agreement, a grievance
is defined as a difference arising between the parties relating to the
interpretations, application, administration or alleged violation of the Agreement
or the discipline, discharge or suspension of an employee covered by this
Agreement.
Article 14.7 Policy Grievance
a) A grievance arising directly between the Employer and the Union
concerning the interpretation, application or alleged violation of the Agreement
shall originate at Stage 1 of the grievance process within thirty (30) days
following the circumstances giving rise to the grievance.
b) It is expressly understood, however, that the provisions of this Article may
not be used with respect to a grievance directly affecting an employee which she
could have instituted herself and the regular grievance procedure shall not be
thereby bypassed.
Article 44 Layoff and Recall/Employment Stability
44.1 Whereas restructuring of healthcare services is proceeding, the parties are
determined to address and minimize the adverse impact of restructuring
on employees in the bargaining unit and agree to the fair and equitable
treatment of all employees in the bargaining unit.
44.3 The Employer and the Union agree to work jointly to minimize any adverse
effects of a long term or permanent layoff (greater than thirteen (13)
weeks' duration) on employees, and maximize creative approaches that
meet the interests of both the Employer and the employees. Accordingly,
in the event of such a layoff the Employer will:
A
a) provide the Union with no less than four (4) months' notice;
b) commencing at the time that notice is given to the Union, and prior to
the giving of written notice to the employees if possible, jointly
evaluate, plan and review:
i) the reason causing the layoff;
ii) the service the Employer will undertake after the layoff;
iii) how the Employer intends to effect the layoff, including areas
where layoffs will occur, and which employees will be laid off;
iv) ways the Employer can assist employees to find alternate
employment; and
v) ways and means of avoiding or minimizing the impact, including:
• identifying and reviewing possible alternatives to any
action that the Employer may propose taking;
• identifying and reviewing ways to address on-the-job
retraining needs of employees;
• identifying vacant positions within the bargaining unit for
which surplus members of the bargaining unit might
qualify, or such positions which are currently filled but
which are expected to become vacant within a twelve
(12) month period;
• identifying contracting in opportunities; and
• mapping bumping options for affected employees, to the
extent possible.
To allow the Employee -Employer Relations Committee to carry out
its mandated role under this Article, the Employer will provide the
Committee with pertinent financial and staffing information and with
a copy of any reorganization plans which impact on the bargaining
unit.
The Submissions of the Parties'
The Employer offered four reasons why this hearing should be prevented from
proceeding to a consideration of the merits of the Union's claim.
' Note: Only the submissions regarding the preliminary issue will be addressed.
Although the parties' advocates did raise some arguments that touch on the merits of
the parties' positions, they have not been repeated here because they are not relevant
to the preliminary issue.
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First, the Employer stressed that there is no "live issue" between the parties to be
resolved. While it was acknowledged that the parties have had a disagreement about
the meaning of the word "classification" in Article 44.12(a) throughout several
restructuring events, they have always been able to resolve every individual claim or
grievance to date. Therefore, it was suggested that the better way to deal with their
disagreement is to address it in the pending collective bargaining or to await an actual
case if one ever arises. It was submitted that an arbitrator should not engage in an
examination of "hypothetical issues" and that the better course of labour relations is to
have parties resolve their problems themselves. Reliance was placed on Ontario Public
Service Employees Union v. Ontario (Minishy of Children and Youth Services) (Coelho),
[20141 O.G.S.B.A. No. 65 (Lynk).
Secondly, the Employer pointed out that days after this policy grievance was filed, the
individual grievance referred to in the Agreed Facts was also filed as a result of the
latest restructuring. Shortly after that, the individual grievance was settled, thereby
resolving that specific issue. While the Employer acknowledged that the settlement of
the individual grievance did not resolve the parties' longstanding disagreement over the
interpretation of Article 44.12(a), the Employer argued that the settlement should act as
a bar to an arbitration over the interpretation issue unless and until there is a further
restructuring event that leads to an individual grievance.
Third, the Employer argued that it is "premature" to litigate what might arise under a
future restructuring. This was said to be particularly important, given the fact that the
parties are now engaged in bargaining over the terms and conditions of their Collective
Agreement that "expired" March 31, 2014. The Employer submitted that "there is no
effective labour relations purpose for an arbitrator to engage in an abstract
determination of a hypothetical issue."
Fourth, the Employer argued that regardless of any conclusions on its first three
submissions, it should be recognized that it will be "difficult" or "impossible" to resolve
the parties' dispute without a factual background or "real" situation to litigate. It was
E:3
stressed that the Employer would want to present evidence regarding the various
positions held by members of this bargaining unit, their job descriptions, reporting
structures, the nature of their work, their client bases and movement between positions.
The Employer suggested that an arbitrator could not determine the meaning of the word
"classification" without a detailed look at all the positions and their attendant implications
within this bargaining unit. This was said to be very important, given the variable duties,
responsibilities, communities and clientele associated with several of the positions held
by RNs and RPNs. Further, it was pointed out that there are several "positions" that are
not reflected in the wage schedule of the contract. The Employer stressed that the
Early Retirement Incentive only arises in the context of a long-term layoff where there is
an attempt to minimize impact upon employees. Therefore, it was argued that the only
way for the parties' dispute to be properly determined would be on the basis of an actual
dispute involving specific positions that would be affected by a future long-term layoff.
Further, it was suggested that there might be some issues of estoppel arising from
situations where the parties have already addressed the question of movement between
certain positions.
For all those reasons, the Employer asked this arbitrator to "decline jurisdiction" over
this case.
The Submissions of the Union
The Union seeks a declaration regarding the meaning of the word "classification" in
Article 44.12(a). The Union submitted that it does not foresee the need to call evidence,
but instead wishes to present argument based on the "plain and ordinary" meaning of
the words of the Collective Agreement. To that end, the Union will be arguing that the
word "classification" should be read to coincide with the classifications set out in the
wage scale of the Collective Agreement.
The Union stressed that the parties' dispute is not "abstract" as the Employer suggests.
It was said that the Agreed Facts reveal that the parties have had a longstanding
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dispute over the interpretation and application of Article 44.12(a). This was said to be
sufficient to raise a "live issue" that justifies the Union seeking a resolution of this
problem through arbitration. The Union suggested that an arbitration award would
serve a positive labour relations purpose in that it could minimize or prevent disruption
in the event of future layoffs. This was said to benefit the parties and the individuals
who might be affected. Further, it was said since the Union has an important role in the
event of layoffs, pursuant to Articles 44.1 and 44.3, the resolution of this longstanding
issue would assist the Union's ability to fulfill its responsibilities towards its members.
The Union stressed that this Collective Agreement allows for a policy grievance to be
filed on a matter of interpretation or application, regardless of whether there is an
alleged or actual violation. In support of this, the Union relies upon Article 14.1, as well
as the following authorities: Halifax Regional School Board and Nova Scotia Union of
Public Employees, [2002] 119 L.A.C. (4th) 258 (Christie); Board of School Trustees of
School District Comax District School Board No. 73 (Comax Valley) and British
Columbia Public School Employers' Association v. Comax District Teachers Federation
and British Columbia Teachers'Association, Decision of S. Kaljur, August 26, 2009;
Newfoundland & Labrador (Treasury Board) et al v. NL Nurses Union, 2006NLTD81,
2006 06 10 (Supreme Court of Newfoundland and Labrador); Leamington Police
Services Board and Leamington Police Association, Decision of W. Marcotte, December
3, 2008.
Further, the Union responded to the Employer's suggestion that this matter ought to be
left to bargaining by stressing that the last round of bargaining took 2'/a years and
resulted in arbitrated provisions that were issued almost at the end of the contract's
term. Therefore, it was argued that it would be contrary to Article 14.1 and the parties'
interest in achieving a speedy resolution of this "difference" to await this round of
bargaining that may also be as prolonged as the last one. Further, the Union disputed
the Employer's contention that Article 44.12(a)'s only purpose is to limit the impact of
layoffs. The Union argued that it is also an important seniority benefit that should be
determined by way of this policy grievance.
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Finally, the Union addressed the Employer's concerns about "estoppel" by asserting
that since the Union is not asserting any specific violation of the Collective Agreement,
there cannot or should not be any relevance to an estoppel argument.
The Employer's Reply Submissions
The Employer stressed that it will be impossible to determine what is meant by the word
"classification" in this Collective Agreement without examining how positions are dealt
with in this workplace. Further, it was said that the possibility of a future violation of the
Collective Agreement should not justify a hearing, given the scarce 'resources available
to these parties.
The Decision
As a matter of public policy, particularly in a time of limited resources in the health care
sector, it is clear that no one should engage in litigation that will serve no practical or
labour relations purpose. Labour arbitration is designed to bring about efficient and
effective problem solving in the workplace. It is not a forum to engage in a theoretical or
speculative analysis of what might only be hypothetical problems.
The question of when an arbitrator should declare an issue as moot or decline
jurisdiction has been recently summarized by Arbitrator/Professor Lynk in Ontario Public
Service Employees Union v. Ontario (Ministry of Children and Youth Services) (Coelho),
supra:
In a sampling of ... leading arbitration cases on mootness, arbitrators have
accepted a mootness argument in circumstances where a settlement of a dispute
had removed any "real controversy" such that the hard facts of the case were no
longer available to explain the nuances of the union's claim, and all that remained
was an abstract question (Trillium Lakelands District School Board (2007), 169
L.A.C. (4th) 19 (Burkett)); where "no useful purpose" would be served by an
interpretative decision of a matter whose labour relations essence had been
previously settled (Renfrew County District School Board, [2008] O.L.A.A. No. 225
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(Beck)); and where "no ... practical purpose" would be achieved by adjudicating a
matter dealing with the purported failure to hire additional teachers where the
school year had already ended, no damages were being claimed and the matter
was not likely to reoccur (Re Welland County Roman Catholic Separate School
Board (1992), 30 L.A.C. (4th) 353 (Brunner)). There must be a "real difference"
between the parties in order for an arbitration board to proceed to adjudicate the
substance of the grievance before it: St. Boniface General Hospital (1996), 56
L.A.C. (4th) 372 (Freedman).
[36] On the other hand, arbitrators have dismissed mootness arguments and
proceeded to hear the merits of a grievance where a `live controversy" remained
because some remedies remained unaddressed, notwithstanding the
disappearance of one remedial option (York University (2010), 199 L.A.C. (4th) 233
(Slotnick)); where the purported defects of the employer's attendance program had
a "continuing impact" on employees, such that the "basis of the grievance" had not
disappeared (Ministry of Solicitor General and Correctional Services, (1998) GSB
No. 1925196 (Abramsky)); where the subject matter of the grievance had never
been addressed to the satisfaction of the union and there had not been an
admission by the employer that it had violated the collective agreement (Re
Windsor Roman Catholic Separate School Board (1994), 45 L.A.C. (4th) 149
(Joliffe)); and where the collective agreement difference involving the denial of an
unpaid leave request by an employee remained fundamentally unresolved and
capable of being remedied, even though the grievor had subsequently suffered an
illness and could not have taken the requested leave in any event (Re Durham
Region Roman Catholic Separate School Board (1991), 19 L.A.C. (0) 72
(Brandt)).
[37] In sum, when faced with a mootness argument, Canadian arbitrators have
generally taken the view that grievances should be adjudicated and decided on
their merits, unless it is plain and clear that the live or real difference between the
parties has been effectively resolved, and there is no longer a purposive industrial
relations reason to proceed to the merits: Brown & Beatty, Canadian Labour
Arbitration (4th ed.), 2:3240.
These conclusions are consistent with the important concept that labour arbitration is
designed to both resolve and aid in the prevention of problems. That is why both the
Labour Relations Act and this Collective Agreement define individual and policy
grievances as differences regarding "the interpretation, application, administration or
alleged violation" of the contract [emphasis added]. This means that there does not
necessarily have to be a specific contractual violation to trigger an arbitral issue.
Arbitrators can and do decide cases where no violation of a Collective Agreement has
occurred. It is sufficient to establish that there is areal difference between the parties
which requires resolution and that falls within an arbitrator's jurisdiction. The highly -
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respected Arbitrator Innis Christie pointed this out in Halifax Regional School Board,
supra, when he wrote about similar language:
. if the intention is that the Union cannot file a grievance until the Employer
has applied its interpretation of the Collective Agreement why does this clause
include reference to "interpretation, application or alleged violation"? If the
Union is expected, as it is, to ensure that its members "work now and grieve
later" it must be entitled to test the Employer's asserted interpretations of the
Collective Agreement before the members are faced with situations in which they
will lose rights now and only be able to grieve them after the fact. (p. 264)
In that case, Arbitrator Christie concluded that a hearing should proceed where an
employer has adopted a position that the union legitimately objects to and that will
impact employees' rights. He contrasted that kind of situation from one where there is
no foreseeable impact of the employer's opinion, nor has the employer voiced any
implicit or explicit interpretation that is being challenged.
There is also arbitral recognition that the doctrine of "mootness" has a special or limited
application in the context of policy grievances. This was foreshadowed in Halifax
Regional School Board, supra, and echoed in Board of School Trustees of School
District Comax District School Board No. 73 (Comax Valley) and British Columbia Public
School Employers'Association v. Comax District Teachers Federation and British
Columbia Teachers' Association, supra:
.... Where the collective agreement expressly contemplates grievances that are
of an interpretative nature or where the remedy may be declarative only or
prospective, it is difficult to see how the doctrine of mootness could be properly
applied to preclude arbitrability to the very things that it is designed to permit. (at
P. 8)
This notion is also supported by Newfoundland & Labrador (Treasury Board) et al v. NL
Nurses Union, supra,
These principles must now be applied to the case at hand.
This Employer operates out of three sites in the Kingston, Ontario area, providing a
myriad of specialized and important programs through inpatient, outpatient and
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community programs. The Employer operates a very complicated set of facilities due to
the diverse nature and location of its services and the many job descriptions that apply
to the members of the bargaining unit, including the professional and registered staff.
Those complications have had an impact on "no fewer than five" restructuring events
since 2005. Nevertheless, the parties have been able to navigate through all the
individual grievances or claims that arose from those events, all the while maintaining
their dispute over the correct interpretation and application of the word "classification" in
Article 44.12(a).
However, some things remain clear. It is clear that the parties fundamentally disagree
about the interpretation and application of the word "classification" in Article 44.12(a).
Further, there are no current restructuring plans under active consideration, nor are
there any disputed situations in relation to the issuance of previous early retirement
offers to date. Therefore, it is understandable why this Employer is urging that the
dispute be held off until and unless a future situation arises that the parties cannot
resolve on their own. Alternatively, the Employer wonders why the current language
should be tested at arbitration when there is a possibility that it could be clarified and/or
amended by the parties during their current round of bargaining. There is logic to that
position.
However, the fact remains that there is a "real issue" between the parties about the
interpretation and application of Article 44.12(a) and/or the word "classification" within
that clause. This Collective Agreement contemplates the arbitration of an issue of
interpretation and application, especially in the form of a policy grievance. The fact that
this issue could or should be resolved in collective bargaining cannot be a bar to
arbitration. All disputes between any parties could be resolved in collective bargaining
or by the parties themselves; indeed most should be resolved that way. However,
arbitration remains in place as an alternative and viable way to resolve contractual
differences that the parties are unable or unwilling to resolve themselves. Therefore,
the forum of arbitration need not be held in abeyance if there is a real issue of
interpretation that divides the parties. While some parties may choose not to arbitrate
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an issue before bargaining is concluded as a matter of strategy and others may see a
strategic advantage to obtaining a ruling, neither choice is a matter of concern for an
arbitrator. What an arbitrator must look at, in the case of a policy grievance such as
this, is whether there is a real difference between the parties and/or whether there is a
positive labour relations reason to proceed to a consideration of the merits of the case.
There is a definite "difference" between this Union and this Employer regarding the
interpretation and application of the word "classification" in Article 44.12(a). Their
difference goes to the heart of seniority and management rights, as well as the
individual and parties' respective rights in the event of a long-term layoff. It is apparent
from the Agreed Facts that the underlying issue in the individual grievance arising out of
the last restructuring has not been satisfactorily resolved, nor has it disappeared,
despite the parties' ability to reach a settlement for the affected individual. The parties
have an ongoing relationship where all affected parties are served by clarity in the
understanding of their respective rights and responsibilities. If the language of the
Collective Agreement remains unchanged after bargaining, the resolution of this
fundamental issue will instruct the parties on their relative rights. Accordingly, labour
relations could well be served by resolving this dispute before the parties face another
restructuring. Therefore, the interpretative issue remains a point of division between the
parties and as such is a "difference" that constitutes the jurisdictional foundation of a
policy grievance under this Collective Agreement.
Having reached this conclusion, some further things need to be said. Without question,
the most expeditious and best way to resolve this issue is during the parties' current set
of negotiations. The parties know their workplace, the responsibilities of their positions,
and the needs of their clientele. Therefore, the parties are best suited to exercise
creativity and pragmatism in crafting language for Article 44.12(a) that removes the
current controversy. If they do so in bargaining and/or before another restructuring,
then this current grievance will be truly "moot" because there is no point in interpreting
language that will never have any effect. Accordingly, for the parties' sake, 1 urge them
to address the language of Article 44.12(x) in bargaining as a joint priority and find
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language that allows them to move forward in a way that serves the legitimate interests
of everyone.
Secondly, if and when this case proceeds to a hearing of its merits, I remain mindful of
the Employer's concerns about how it will be conducted. The Union's case is based
solely on the language of the Collective Agreement, whereas the Employer would seek
to call evidence regarding its operations, structure, the positions and all the job
descriptions that might be affected by this case. The Employer is suggesting that this
might result in an examination of all the positions/classifications in the bargaining unit
and involve a huge amount of time, expense and complications. l cannot and will not
determine the scope of admissible evidence at this point. However, taking the
Employer's suggestions at its highest potential, no matter how daunting and unwieldy
such an exercise may be, its possibility is not a sufficient reason to decline jurisdiction.
What it means is that if the Union chooses to proceed to a hearing of the merits, the
parties will have to convene a conference call with me to determine a procedural
framework for the processing of this case. At such a time, I will explore with the parties
ways of making the hearing manageable and fair to them both.
For all these reasons, the Employer's objection to the arbitrability of this case has been
rejected. The matter will proceed to a hearing of the merits at a mutually convenient
time to be arranged through my office, taking into consideration the procedural matters
that must be resolved before the hearing on the merits commences.
Dated at Toronto this 26th day of August, 2014.
Paula Knopf - Arbitrator
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