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HomeMy WebLinkAboutRichmond 00-10-26 IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE (the "Employer") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") IN THE MATTER OF GRIEVANCE: Brian Richmond - OPSEU File # 00t95-16 BOARD OF ARBITRATION: M. G. Mitchnick - Chairperson Rene St. Onge - Employer Nominee Sherril Murray - Union Nominee APPEARING FOR THE EMPLOYER: Michael Doi - Counsel David Ivany - Manager, Academic Relations APPEARING FOR THE UNION: Alick Ryder - Counsel Tom Tomassi - President, Local 556 Brian Richmond - Grievor Hearing in this matter held in Toronto on October 12, 2000 .-- AWARD The present board has been constituted to hear a grievance filed by Mr. Brian Richmond. The College in a letter forwarded to Union counsel eight days before the hearing raised an objection as to the timeliness of the grievance's referral to arbitration, and the parties used the hearing day to deal only with that preliminary objection. This grievance (#99-09) was filed by Mr. Richmond on May 3, 1999, claiming that the College was wrongfully refusing to pay for health and dental coverage while he was on LTD benefits. On the same date, Mr. Richmond filed another grievance (#99-08, or 99B552) relating to the calculation of his LTD benefits themselves. Not surprisingly the College and Union dealt with both grievances at the same time as they progressed through the grievance procedure. The applicable collective agreement provisions read: Step Two The grievor shall present the grievance to the College President. The College President or the President's designee shall convene a meeting concerning the grievance, at which the grievor shall have an opportunity to be present, within 20 days of the presentation, and shall give the grievor and a Union Steward designated by the Union Local the President's decision in writing within 15 days following the meeting. In addition to the Union Steward, a representative designated by the Union Local shall be present at the meeting if requested by the employee, the Union Local or the College. The College President or the President's designee deems necessary. 2 In the event that any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfactorily settled trader 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. As can be seen above, the collective agreement simply provides that, if unresolved, the matter shall be referred to arbitration "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 at Step Two". The College provided its Step Two reply, dated May 11th, 1999 as follows: MEMORANDUM To: Brian Richmond From: Zaki Ullah, Human Resources Date: May 11, 1999 Subject: Response (Grievances - #99-08, & 99-09) It is our opinion that the matters related in your grievances dated May 3, 1999 are not grievance matters under the Academic Collective Agreement. In view of this opinion we do not believe such matters require Step 1 and Step 2 meetings as per article 32. Thank you, cc. T. Tomassi M. Hofweller On May 184 Tom Tomassi, the Local President, accordingly wrote to the College as follows: 3 MEMORANDUM TO: Frank Sorochinsky, President, G.B.C. FROM: Tom Tomassi, President, Local 556 DATE: May 18, 1999 RE: BRIAN RICHMOND GRIEVANCE #'S 99-08 & 99-09 This is to advise you that we do believe that the above noted grievance is a proper grievance fried under the Academic Collective Agreement and are herewith forwarding it to be scheduled for arbitration. TT:mm cc. B. Richmond L. Roach-Ferguson Z. Ullah Mr. Tomassi testified that once that notification is given, the practice is to refer the matter on to the Union's Regional Office, and thence to Head Office, to arrange for scheduling by the joint committee and the assignment of a number. On June 10, 1999, Robin Gordon of OPSEU' s Head Office staff further wrote to the College as follows: June 10, 1999 The President George Brown College P.O. Box 1015, Station B Toronto, Ont M5T 2T9 4 Dear Sir / Madam: Re: GRIEVANCE(S) of Richmond, Brian, Local 0556 Article 4; Letter of Understanding; GRIEVANCE(S) DATED 05/03/1999 This is to advise that your reply to the captioned grievance(s) is not satisfactory. We are, therefore, referring the matter to a Board of Arbitration. By copy of this letter, we are bringing this matter to the attention of Human Resources Secretariat, Ontario Council of Regents so that the selection of a Chairperson and a date for a hearing may be arranged. Please contact me should you require additional information. Yours maly, Robin Gordon Grievance Officer To that point both grievances, as noted, were being handled together. By oversight, however, it appears that only grievance #99-08 (and not this grievance) was moved on to the scheduling committee for a hearing date. That hearing was set for February 29, 2000, before Mr. Shime. On February 23ra the oversight regarding #99-09 (this grievance) came to OPSEU's attention, and another Grievance Officer, Margaret Froh, wrote to the College as follows: 23 February 2000 The President George Brown College P.O. Box 1015, Station 'b' Toronto, Ont. M5T 2T9 5 Dear Sir / Madam: Re: GRIEVANCE(S) OF Richmond, Brian, Local 0556 Letter of Understanding; Employment Equity; Article 4 - GRIEVANCE(S) DATED 05/-3/99 Please be advised that due to a clerical error the above noted grievance has not yet been referred to a Board of Arbitration. Your reply to the above captioned grievance is not satisfactory, and we are therefore referring the matter to a Board of Arbitration. By copy of this letter, we are bringing this matter to the attention of Human Resources Secretarial Ontario Council of Regents so that the selection of a Chairperson and a date for a hearing may be arranged. I would note, however, that this grievance is directly related to, and has been processed by the parties throughout the grievance process together with another grievance, OPSEU No. 99B552. That grievance is scheduled to proceed before Chairperson Owen Shime on February 29, 2000. Accordingly, this grievance ought to be heard at the same time as 99B552 and consolidated with that matter before the Shime panel. Please contact me should you require additional information. Yours truly, Margaret Froh Grievance Officer For whatever strategic reasons, however, the College declined the Union's offer to consohdate the two grievances, and instead forced the Union to process # 99-09 on its own path, and ultimately before a different arbitration panel (being the present). That strategic decision on the College's part has led to an ironic turn of 6 events. The College on grievance # 99.08 before Mr. Shime took the position that the matter was referred to arbitration late. The Union somehow failed to put before Mr. Shime the May 18~h notice by Mr. Tomassi, and on the basis of the June l0s letter only, Mr. Shime concluded that the grievance before him (being solely # 99-08) was out of time, and he dismissed it. The College would now like to apply that result to the second grievance (ours), and asks this panel to fmd that OPSEU is now bound by the doctrine of "issue estoppel". As discussed at the hearing, with the grievances not consolidated, the application of that doctrine to truly distinct grievances becomes more difficult. We fred that we do not have to deal with that however. That is because on the case law we find we must come to the conclusion that the College has "waived" its timeliness objection at all material times, and will not be permitted 'to raise that objection now. The College in answer to the Union's argument on waiver relies on two cases in particular. Peterborough Civic Hospital was an oral decision of Kevin Burkett, ultimately reproduced in writing as part of an award reported (1985) 22 L.A.C. (3d) 151. Basically Mr. Burkett found in that oral ruling that the mere act of naming a nominee to a board of arbitration was not necessarily sufficient to attract the consequence of a "waiver". In the second case cited, Canada Post (1992) 29 L.A.C. (4t~) 7, Mr. Burkett wrote, at page 16, quoting an earlier case: Notwithstanding the judgement of the court, arbitrators should be extremely careful in applying the doctrine of waiver to the exercise of substantive rights. This is so because employees are not usually represented by counsel during the grievance procedure and sometimes not at arbitration, and because the statutory purpose of labour arbitration is to resolve 7 labour disputes arising from alleged breaches of a collective agreement. As distinct from a finding of waiver in respect of a procedural irregularity, which then allows the grievance to be heard on its merits, a finding of a waiver of a substantive right limits the scope of the heating on the merits and/or deprives an employee of a right to which he or she would otherwise be entitled to rely upon. [emphasis added] That, as Mr. Burkett noted, was a question of"waiver" of a substantive right of an employee to notification before discharge; and that is expressly contrasted with the law as it may apply to "procedural" matters. Mr. Burkett then continues: I summarize these principles as follows. Waiver is an abandonment or relinquishment of a right which must be intentional or voluntary. It may be express or implied from conduct. Mere acts of indulgence will not amount to waiver nor can a party benefit from a waiver unless he has altered his position in reliance on it.. ii The latter point we accept is particularly applicable in the College system, where a limited number of cases are able to be referred to arbitration each year, and cases are put forward on a "prioritized" basis, and then through the elaborate mechanism of the joint scheduling committee. All of that has been recently considered by Mr. Schiffin another case under this system, being an award dated October 17th, 1997, at Centennial College: "Waiver results from a party's condoning - acquiescing in - a previous breach by the other party. When the breach is merely procedural, as here, that may be inferred from the party's failure to object in reasonable time and its carrying on the relationship in the interim as if nothing wrong had happened 8 The fax and letter from the College's counsel went out on September 29~, 1997, eight months after Lawrence's letter from OPSEU's head office to the College's president and almost two years after Sinclair's memorandum to Hoflock. Between the date of Lawrence's letter and that of counsel's fax and letter, the scheduling committee created by the parties to the collective agreement chose the board chairman and set the date of heating. The parties immediately followed by choosing and annotmcing their respective nominees. After that lapse of time and all that activity by the parties' committee and the parties, acting on behalf of the College and the local union, it was too late for the College to complain about the matters put to us; well before the September 29th fax and letter went out, the College had condoned - had acquiesced in - any alleged failure by the local or the provincial union to begin in time or complete in time the process of getting the grievance to arbitration. As a result, the College's objection are waived. We see that the board in George Brown College and OPSEU, De Simone grievance (1995) (Burkett, chairman), found waiver on facts very similar to those before us. The college had argued that it was not involved in creating the board and had no opportunity to object before the hearing opened. While the award does not deal explicitly with the first argument, the finding of waiver is obviously a rejection. Our answer we set out above: the Council of Regents, as a party to the collective agreement, acted on behalf of the College in the working of the joint scheduling committee and the appointment of the nominee. To the second argument the board said that the college was botmd to object promptly to the alleged defect and could have done so in the course of its on-going dealings with the local union on the various issues coming up. Id. At 13-14. We agree with that. At the end we note that arbitrators acting outside the college system have found waiver in very similar situations. For a recent example, see Re Canada Post Corp. and CUPE, McGrogan grievance (1991), 22 L.A.C.(4th) 430 (Joliffe, arbitrator) The preliminary objection is dismissed. 9 We accept that statement of the law, and its application to the situation here, and the College's preliminary objection is similarly dismissed. The matter is to proceed on the merits on a date to be scheduled. DATED at Toronto this 26th day of October, 2000 M. G. Mitchnick (Dissent to follow) "Rene St. Onge" Rene St. Onge I Concur "Sherril Murray" Sherril Murray