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HomeMy WebLinkAboutMulti College 98-05-14IN THE MATTER OF AN ARBITRATION L_ - jb~ (A t h '-' BETWEEN: ONTAKIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) AND IN THE MATTER OF A CERTAIN GRIEVANCE REGARDD,IG IN-SERVICE TEACHER TRAINING PROGRAM - OPSEU FILE #97G077 O.B. SHIME, Q.C. CHAIRMAN R. GALLIVAN NOMINEE FOR TI-~ COLLEGE S. MURRAY NOMINEE FOR THE UNION APPEARANCE S: CHRISTOPHER C. RIGGS COUNSEL, and others for the Employer RICHARD BLAIR COUNSEL, and others for the Union A hearing was held in this matter on January 5, 1998 at Toronto, Ontario AWARD In the 1987/1989 Collective Agreement the parties agreed to establish an in-service teacher training program which provided accessibility to the faculty at each college. The program permitted employees who enrolled and satisfactorily participated in the program to receive a one step salary progression. The commitment to the training program was continued in both the 1989 Collective Agreement and the 1991/94 Collective Agreement with some variations and is as follows: Re: Access to the Salary Scheduled Maximum The parties reaffirm their on-going commitment to the quality of teaching in the CAAT system. The parties have agreed to the establishment of an In-Service Teacher Training Certificate Program in a modularized format which provides accessibility-the employees at each college. The program will be offered by one -~ or more institutions, and an agreement to that effect will be entered into by the Council, OPSEU and the institutions. The objectives, curriculum delivery and length of the program will be developed by the task force (established under the previous Agreement), and shall have regard for the accrued experience of CAAT teachers including teacher training courses and programs completed. Employees who have 15 years or more of service and whose maximum Step is currently below the maximum on the salary schedule and who enroll and participate in the program shall receive (once only) an immediate one step salary progression, to a maximum of the salary schedule, and shall maintain that Step upon maintaining satisfactory performance in the program. Employees who successfully complete the program shall be entitled to progress to the maximum of the salary schedule. F. Upshaw R. Johnston President Chair Ontario Public Service Ontario Council Employees Union of Regents Pursuant to the provisions of the agreement, the parties entered into an agreement with the Board of Governors of the Confederation College of Applied Arts and Technology to provide the 2 program for a three year term. Confederation College delivered the program but chose not to renew its contract after August 31st, 1995. The parties then sent out an invitation to all of the colleges to submit a proposal for continued delivery of the program and, on July 24th, 1995, Seneca College submitted a proposal which was found unacceptable. Another proposal by Fanshawe College to deliver the program for a period of one year was rejected by the Union. Subsequently, OPSEU Local 560 submitted a proposal which was rejected by representatives of the Colleges. On February 1st, 1996 the Union proposed that Fanshawe College and OPSEU Local 560, be awarded a contract to conduct the in-service teacher training certificate program. That prbl~sal was rejected by the Colleges on the basis that OPSEU 560 does not qualify as an institution in accordance with the original letter of understanding between the parties. Also the Colleges suggested that there would be perceived conflict of interest if OPSEU Local 560 was to be the host for such a program. On April 24th, 1996, the Colleges proposed that an in-service teacher training program be offered locally by each college and, again, that proposal did not meet with the approval of the OPSEU representatives elected to the task force. On November 10th, 1997, OPSEU filed a policy grievance with respect to the in-service teacher training program at each of the colleges. Those grievances were all the same and stated as follows: Re: Policy Grievance On In-Service Teacher Training Programme OPSEU Local 556 grieves that George Brown College has violated the collective agreement by altering the terms and conditions of employment when its bargaining agent, the Council of Regents, refused to select host institutions to provide the In-Service Teacher Training Programme. This refusal has created a situation, which is unfair and discriminatory to members who are denied their rights to enrol and participate in this programme. This refusal to come to an agreement is in bad faith, and further, it violates Article 4, 6.02, 14, other related articles, and the Letter of Understanding on page 108. As remedy, we seek that the College direct its bargaining agent to reach an agreement immediately, or, in the alternative, to advance any member, who is eligible for the I.S.T.T.P., along the salary grid and that this movement be retroactive to the time when Confederation College ceased to provide access to new entrants. In the event that this remedy results in additional pay for any member, we seek interest as well. In addition, all eligible retirees shall have an appropria~ adjustment made to their pension. -:'~ This grievance is being filed with each college in the bargaining unit. Consequently, it might be more convenient to set up one grievance meeting with a representative of the Council of Regents to deal with all the grievances. Please let me know if you agree. In the alternative, please contact the President of your local to set up a meeting in accordance with article 32 of the collective agreement. At the outset of the proceedings, in a preliminary motion to dismiss the grievance, the Colleges asserted that the Collective Agreement contained an agreement to agree which was not an enforceable fight. The Colleges argued that there were no fights that were agreed upon by the parties which are capable of enforcement and there is no indication in the agreement that the parties intended that there be an arbitrated agreement. The Colleges also asserted that there is no difference between the parties which is capable of being resolved by a board of arbitration. The Colleges maintained that even if the board considers the Employers' proposal to be the best one, a board of arbitration has no authority to impose that proposal on the parties. The Colleges also submitted that 4 it was left to the parties to agree and if the parties cannot agree then it is not for a board of arbitration to compel agreement or to substitute its own decision. The Union maintained that the Collective Agreement imposes an obligation to provide a program and since individuals who complete the program are entitled to a stepped up position on the salary grid that there is a substantive right, to which the parties have agreed, which must be dealt with by a board of arbitration. The Union submitted that since the parties have agreed to provide a program that there is a difference between them as to who should provide the program and the parties require the assistance of a board of arbitration to determine who shall provide the prd~m. The Union argued that there is a specific right under the collective agreement and that the legislation mandates that the fight be submitted to final, binding arbitration. By way of reply, the Colleges submitted that there must be a breach by the Employer and absent a breach, there is no difference between the parties which is capable of remedy by a board of arbitration. The Colleges also maintained that the most that a board of arbitration can do is to direct the parties to comply with the Collective Agreement and to negotiate, which the parties have done. Since there is a continuing obligation, it is within the parties own control and ought not to be disposed of by a board of arbitration. The Colleges further argued that to impose an agreement is tantamount to an interest arbitration and there is no indication in the Collective Agreement that such recourse is available to the parties. This case must be viewed against the background of the relevant legislation. The Colleges 5 Collective Bargaining Act R.S.O. 19, C. 15, like other Canadian labour legislation requires, in the interest of industrial peace, that the employer surrender its right to lock out and the union surrender its right to strike during the currency of the collective agreement. In order to resolve disputes during the currency of a collective agreement, Section 46 of the act mandates that the collective agreement shall provide for the final and binding settlement by arbitration of "all differences between the parties arising from the interpretation, application, administration or alleged contravention of the agreement." Given that the respective rights of the parties to lockout and strike are curtailed, a board of arbitration should be hesitant to limit resort to arbitration, since it is the only method of resolving disputes, during th'e-currency of the collective agreement. ~:~ We are also of the view that access to arbitration is necessary to prevent festering disagreement betWeen the parties. That approach was adopted by the Divisional Court in Re Toronto Hydro-Electric System and Canadian Union of Public Employees, Local 1 (1980) 29 O.R.(2d) 18, 111 D.L.R. (3d) 693, affd 30 O.R. (2d) 64n, 113 D.L.R. (3d) 512n where Linden J., dealing with Section 37 of the Labour Relations Act, which is the equivalent of Section 46 of the Colleges Collective Bargaining Act, stated as follows: "The aim ofs.37 is to ensure that access to arbitration is available in all cases of differences to prevent festering resentment between the parties about unresolvable disagreements." It is also for this reason that we are hesitant to curtail access to the arbitration process. Also, the Ontario Court of Appeal has examined the process to be used in determining 6 whether a difference exists and has also considered the meaning of the term "difference". In R~e Ontario Hydro and Employees Union (1983) 41 O.R. (2d) 669, Morden J.A. speaking for the Court at p.681 envisioned a two-step process in resolving disputes. The Court asserted that "First the facts have to be determined, which in this context means that the collective agreement must be interpreted, and then the statutory provision has to be interpreted with a view to deciding whether it is applicable to the facts as determined. In the first stage, if the arbitrator interprets the agreement as conferring on the complaining employee a right assertable in the circumstances against the employer, then there is a "difference" within the meaning of this word (more accurately the word is "differences") in s. 37(1). In the present case the board of arbitration interpreted the agreement as creating a right in a probationarY employee, based on an allegation of discharge without just cause, ---'~ which could give rise to a "difference". The difference was one relating to the interpretation, application or administration of the collective agreement. If this is the conclusion on the interpretation of the agreement, then any provision in the agreement which blocks the resort to arbitration to determine the right would be void as contrary to s.37(1). Of course, if the process takes a different turn during the first stage then it may be that no "difference" will emerge which would entitle the union or employee to proceed to arbitration. An arbitrator may interpret the agreement as. conferring no right on an employee which could give rise to a difference capable of being adjudicated by arbitration. In our view, the process suggests that there be an inquiry in order to determine the facts. The Court also suggested what is meant by a "difference", at p.682: "I think that the adjective "substantive" affords a reasonable description of the nature of the rights with which we are now concerned which can give rise to a "difference". Broadly speaking, collective agreements confer on the parties, including employees, certain rights which may be asserted against the other party. In the present case the board of arbitration, in one of its descriptions of 7 what the agreement provided, said that the agreement conferred on probationary employees" certain protections based on the principle of just cause". These protections, I think, embody substantive rights. The other kind of rights which will be found in collective agreements relate to the machinery for enforcing these substantive rights or protections and a convenient description of them is "procedural". With due respect to the contrary view of the Nova Scotia Court of Appeal in IntT Ass'n of Firefighters, Local 268 v. City of Halifax (1982), 131 D.L.R. (3d) 426 at p. 430, 50 N.S.R. (2d) 299 at p. 307, 82 C.L.L.C. para. 14, 167, p. 12,812 at p. 12,815, I think that it is helpful to have the natural distinction between substantive and procedural rights in mind in determining, at the end of the process of interpretation of the contract, whether the allegation gives rise to a difference capable of proceeding to arbitration. If the impediment to arbitration is an absolute procedural bar, as opposed to an absence of a substantive right to be submitted to arbitration, then there is an arbitrable difference." We can only conclude from the decision of the Court, that at the very least, if there are fights conferred on a party to a collective agreement which may be asserted against the other party, there is a difference between them capable of being dealt with at arbitration. In this matter it is apparent that the parties have agreed to the establishment of an in-service Teacher Training Certificate Program in a modularized format which provides accessibility to the employees in each college. The parties have also agreed that the program will be offered by one or more institutions, and an agreement to that effect will be entered into by the Council, OPSEU, and the institutions. Also employees, under certain conditions, are entitled to participate in the program and to progress on the salary schedule if they have successfully completed the program. It appears that the Union has a substantive right to have a program in place and the employees who satisfy the necessary conditions are entitled to participate in that program, and accordingly there are substantive fights that flow from the agreement. 8 It is apparent that there is no program currently in place. Why there is no program in place is the subject matter of the grievance and is in dispute between the parties. Accordingly, after considering the decision of the Court of Appeal in the Ontario Hydro case, it is our view, that there is a difference between the parties which is capable of being arbitrated and it is incumbent upon a board of arbitration to determine the facts, after a proper heating, in order to decide the issue, Much of the argument advanced by counsel for the Colleges is focused on the remedy. In effect, counsel asserts the agreement does not lend itself to a remedy. While there may be some merit in that position, it-is our view that it is premature to assess the matter at this stage ~out considering the evidence on the merits and any arguments that flow from that consideration. That the remedy may be difficult is not a reason not to proceed to hear the merits, since we are also of the view that boards of arbitration have broad remedial powers which may be exercised in the appropriate circumstances. Counsel for the Colleges has referred to a number of cases in the courts, particularly Scammell v. Ouston [19411A.C. 25, in which a hire purchase agreement was considered to be too vague to be given any definite meaning, and National Bowling & Billiards Ltd v. Double Diamond Bowling Supply Ltd and Automatic Pinsetters Ltd. ~1961~ 27 D.L.R. (2d) 342 (B.C. Supreme Court) where it was held that a contract was unenforceable because it left important matters to be settled by future negotiation and which could not be filled in by the Court. However, both those cases were decided after a full trial was held and neither was dismissed at a preliminary stage. Also both of those cases lacked the background of a statutory regime such as found in the case at hand, and which supports 9 a broad interpretation be given to the term "differences". That statutory regime as we have indicated also supports a policy of access to arbitration to resolve differences so as to prevent festering discontent. It is also relevant to note that in the National Bowling & Billiards case, Macfarlane J. at p.346 referred to Hillas & Co. v. Arcos Ltd [1932~ All E.R. 494, 147 L.T. 503 and to a discussion of those cases in Cheshire & Fifoot; Law of Contracts 5th edition, p35 as follows: A Comparison of these two cases is instructive. In Hillas v. Arcos, though the document itself left a number of points undetermined, these could be settled by referring to the earlier relations of the parties and to the normal course of the trade. In $cammell v. Ouston not only were the lacunae themselves more serious but there was nothing either in the previous dealings of the parties or in accepted business practice which might help to supply them. Vital questions had originally been left unanswered and no subsequent negotiations ever settled. In these circumstances the judges, with the best will in the world, could not invent a contract which the parties had been too idle to make for themselves. At the same time, as Lord Wright pointed out, the judges will always seek to implement and not to defeat reasonable expectations. They will follow, if this is at ali possible, the example ofHillas v. Arcos rather than that of $cammell v. Ouston' In particular, they will not be deterred from proclaiming the existence of a contract merely because one of the parties, after agreement in substance to the proposals of the other, introduces a phrase or a clause which, when examined, is found to be withoUt significance. Based on that view, it appears that the Courts prefer to implement contracts rather than to defeat reasonable expectations. At the very least, it is reasonable to infer that the Courts will hear evidence before defeating a contract and that one ought not to decide these matters at a preliminary stage without giving the parties the opportunity to adduce evidence and to make submissions. 10 Counsel for the Colleges has also referred to a number of arbitration cases which are very different from the case at hand. We turn now to those cases. In Ontario Council of Regents for the Colleges of Applied Arts and Technology (Mohawk College) and OPSEU unreported, October 16, 1990 (M. Teplitsky, Q.C.) the majority of the board of arbitration found that the "parties followed the path laid out", in the collective agreement. In effect, there was compliance with the collective agreement, with the result that there was no justiciable issue between the parties. In Re united Steelworkers, Local 1817 and Fittings Ltd. (1967) 18 L.A.C. 391 (J.F.W. Weatherill) there ~s a request by the Union that the Company be required to negotiate a ne-hate for the job. The collective agreement provided a mechanism for consultation and again the board of arbitration found that discussions between the parties had taken place and that the Company complied with this provision. The board of arbitration further found that the collective agreement did not contemplate agreement, nor did it contemplate that failing agreement arbitration of the matter was contemplated. However, the board of arbitration made the comment in passing which may be relevant. At p.394: the majority stated that where a collective agreement provides for negotiation of rates, "it might then be possible (having regard to the whole of the agreement) to draw the inference that arbitration was intended in the event of unsuccessful negotiation". In effect, the board of arbitration considered that even in the absence of express language, a board of arbitration might, in some circumstances, grant a remedy where negotiation was unsuccessful. In Re International Union of Bridge, Structural & Ornamental Ironworkers, Local 721, and Toronto Construction Association General Contractors Section (1964) 15 L.A.C. 70 (W. Little 11 C.C.J.) the Collective Agreement provided for payment by the companies into a welfare fund to be created. The agreement provided that "the employees and the union shall have equal representation to establish the format and administration of the plan." The board of arbitration held that the matter was not arbitrable and that failure to agree did not constitute a violation of the above provision of the agreement. The case is very sparsely reported and the reasons, from the headnote, are not given. The case was also decided before the Ontario Hydro case which suggests that all differences are to be arbitrated. Again, we reiterate, that although the remedy may be difficult, that is not a sufficient reason to foreclose the Union's fight to have the matter determined on the merits. -.~ In summary, we determine that the parties "have agreed to the establishment of an In-Service Teacher Training Certificate" and have further agreed that, "The program will be offered by one or more institutions, and an agreement to that effect will be entered into by the Council, OPSEU and the institutions." In our opinion the mandatory language of the collective agreement and the substantive tights that flow from that agreement, suggest that the failure to agree is an appropriate matter to be considered by a board of arbitration after evidence and argument and is not an issue that should be dismissed summarily on a preliminary motion. It may well be that a remedy may be difficult in the light of what has transpired, but that should not preclude the parties from adducing evidence and making submissions. Accordingly, the preliminary motion is denied and this matter shall be scheduled for a heating on the merits. 12 DATED AT TORONTO THIS [/~I'~ DAY OF MAY, 1998. O.B. SHIME, Q.C. DISSENT ATTACHED ROBERT GALLIVAN NOMINEE FOR THE COLLEGE "I CONCUR" SHERRIL MURRAY NOMINEE FOR THE UNION .DISSENT OF R.J. GALLIVAN In my view the Majority's decision is erroneous because it ignores one of the provisions of the collective agreement, and assumes jurisdiction for the Board where it has none. The essential elements of the disputed Letter of Understanding read as follows: ~ ...The parties have agreed to the establishment of an In-Service Teacher Training Certificate Program .... The program will be offered by one or more institutions, and an agreement to that effect will be entered into by the Council, OPSEU and the institutions. The objectives, curriculum delivery and length of the program will be developed by the task force (established under the previous Agreement), and shall have regard for the accrued experience of CATT teachers including teacher training courses and p~ograms completed .... (my emphasis) There is no dispute about the facts: the Task Force set up by the contract to develop the training program was able initially to reach an agreement among the three parties (Council, union and training institution) and to make mutually satisfactory arrangements to deliver its mandated work. When some years later the Council and union had to find a substitute training institution to deliver the program they failed to find a mutually satisfactory solution, and so renewal of the earlier agreement did not occur. There is no allegation before us that that failure by the Task Force was prompted by bad faith by either party orby any illegal motive. According to the agreed facts the failure occurred simply because there was no meeting of the minds within the Task Force on how to fulfill the mandate given to it- - 2 - There is no authority in the collective agreement for an arbitration board to probe the reasons for that failure (other perhaps than had an allegation of bad faith been made, which is not the case here). Nor is there authority to substitute its judgement for that of the parties. A further hearing on the matter as awarded by the Chair can have one of only two possible.outcomes: the arbitration board will seek to substitute its judgement for what it thinks the Task Force should have agreed upon, or it will dismiss the grievance. In the former case the board will exceed its jurisdiction; in the latter case the parties will have been put to considerable extra and unnecessary expense. The Chair attempts to find jurisdiction by arguing that "a board of a~bitration should be hesitant to limit recourse t6:~rbitration since it is the only method of resolving disputes, during the currency of the collective agreement". That argument is flawed since the agreement itself says not all disputes are arbitrable (as described below) and obviously some disputes which arise during an agreement's term must be left to collective bargaining when the contract is next renegotiated.. Nevertheless, to support his view the Chair quotes the Colleges' Collective Bargaining Act requirement to settle by arbitration "all differences between the parties arising from the interpretation, application, administration or alleged contravention of the agreement" However, he ignores the further provision which the parties have incorporated at Article 32.04D of their agreement which reads as follows: 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 therewith; nor to deal with any matter that is not a proper matter for qrievance under this Aqreement.(emphasis added) Clearly both the drafters of the legislation and of the collective agreement contemplate that some differences which may arise during a contract's term are meant to be beyond an'arbitrator's grasp. There are several provisions in this agreement - such as Appendix II (a joint union/College committee to rule on employees' education qualifications) and Appendix IV (another joint committee to facilitate communications - 3 - on employee benefit matters), as well as the Letter of Understanding in dispute before us - which require the parties to cooperate and/or reach mutual agreements. If they do not (because one side or the other makes unacceptable demands for example) the solution is collective bargaining during contract renegotiation, not arbitration. The only valid contract interpretation issue which can be before us for arbitration in this case is: did the parties follow the contract by setting up the Task Force as required; did the Task Force develop the objectives, curriculum delivery and length of program as required; was an agreement reached with one or more training institutions to deliver the program? Based on the facts before us we must conclude that the contract requirements were met initially but later were ~warted by a bona fide disagreement on a particul~ issue; in other words there was a lack simply of mutual agreement. Our board lacks jurisdiction to fashion and impose an agreement in these circumstances. To assume jurisdiction requires adding a provision to the agreement which the parties themselves did not include - a provision for a third party to impose its view of what it thinks the parties should have agreed among themselves but failed to do. The Majority confuses rights adjudication with interest arbitration. All of the fa~ts pertinent to an interpretation of the contract within the board's jurisdiction already are before us. Since no violation of the contract can be found on the basis of those facts or on the Task Force's inability to mutually agree on how to complete its work, the grievance should be dismissed. To go beyond that, as the Majority intends now to do, incorrectly interprets the collective agreement and exceeds our board's jurisdiction.