HomeMy WebLinkAboutUnion 97-01-02BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(hereinafter referred to as "the Union")
- and -
SHERIDAN COLLEGE
(hereinafter referred to as "the College")
Union Grievances - Lay-offs
Before: M.G. Mitchnick - Chairman M. Sullivan - Union Nominee
J. Campbell - College Nominee
Appearances:
For the Union:
C. DiFrancesco - Counsel
N. Sibbick - President, Local 244
R. Martin - Chief Steward, Local 244
A. Kolisnyk - Union Member
For the Employer:
F. Hamilton - Counsel
D. Borrelli - Executive Director
Human Resources
S. Bawden - Labour Relations
Assistant
Hearings held in Oakville on September 25th, October 29th and
November 5th, 1996
PRELIMINARY AWARD I
The present board has before it five grievances arising out
of a very large-scale down-sizing by the College. Those lay-offs
were discussed with the Union in the latter part of 1995, and
notices went to the affected faculty members in February of 1996.
The notices have spawned many dozens of individual employee
grievances, none of which are before the board. What are before
the board are five over-arching Union "policy" grievances,
raising a variety of issues including the improper conversion of
the teaching workload to part-time or sessional contracts, and,
on a number of grounds, "discrimination". The College raises a
variety of preliminary objections to the manner in which these
policy grievances have either been filed or processed, and
accordingly takes the position that none of them are arbitrable.
It has been agreed that the present award would deal only with
two of those objections by the College.
Two of the Union grievances were filed on March 3, 1996, one
on March lOth, and one on March 20th. All four of those were the
subject of a combined Step 2 meeting that took place on March
20th. A reply to those grievances was prepared by the College,
and "delivered" to the Union (in circumstances which will be
discussed) on March 27th. The Union did not, however, receive
the reply, and it was not until it inquired on April 23rd that it
was advised that the College had already sent it. Upon receiving
a further copy of the reply the Union referred it to arbitration
immediately, but the College takes the position that by then the
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referral was out of time. The relevant provisions of the
collective agreement read:
Union Grievance
32.10 The Union or Union Local shall have the right
to file a grievance based on a difference directly with
the College arising out of the Agreement concerning the
interpretation, application, administration or alleged
contravention of the Agreement ...
Such grievance shall be submitted in writing by the
Union Grievance Officer at Head Office or a Union Local
President to the Director of Personnel or as designated
by the College, within 20 days following the expiration
of the 20 days from the occurrence or origination of
the circumstances giving rise to the grievance
commencing at Step One of the Grievance procedure.
And thus more generally:
Grievances
32.03 Failing settlement of a complaint, it shall
be taken up as a grievance (if it falls within the
definition under 32.12 C) in the following manner and
sequence provided it is presented within seven days of
the immediate supervisor's reply to the complainant.
It is the intention of the parties that reasons
supporting the grievance and for its referral to a
succeeding Step be set out in the grievance and on the
document referring it to the next Step. Similarly, the
College's written decision at each step shall contain
reasons supporting the decision.
Step One
An employee shall present a signed grievance in writing
to the employee's immediate supervisor setting forth
the nature of the grievance, the surrounding
circumstances and the remedy sought. The immediate
supervisor shall arrange a meeting within seven days of
the receipt of the grievance at which the employee, a
Union Steward designated by the Union Local, if the
Union Local so requests, the Dean of the Division and
the immediate supervisor shall attend and discuss the
grievance. The immediate supervisor and Dean will give
the grievor and the Union Steward their decision, in
writing, within seven days following the meeting. If
the grievor is not satisfied with the decision of the
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immediate supervisor and Dean, the grievor shall
present the grievance in writing at Step Two within 15
days of the day the grievor received such decision.
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 may have such
persons or counsel attend as the College President or
the President's designee deems necessary.
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, 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.
32.04 A Any matter so referred to arbitration,
including any question as to whether a matter is
arbitrable, shall be heard by a Board of three
arbitrators composed of an arbitrator appointed by each
of the College and the Union and a third arbitrator who
shall be Chair.
32.04 D The arbitration board shall not be authorized
to alter, modify or amend any part of the terms of this
Agreement not to make any decision inconsistent
therewith; nor to deal with any matter that is not a
proper matter for grievance under this Agreement.
General
32.05 A If the grievor fails to act within the time
limits set out at any Complaint or Grievance Step, the
grievance will be considered abandoned.
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32.05 B If an official fails to reply to a grievance
within the time limits set out at any Complaint or
Grievance Step, the grievor may submit the grievance to
the next Step of the grievance procedure.
32.05 C At any Complaint or Grievance Step of the
grievance procedure, the time limits imposed upon
either party may be extended by mutual agreement.
Ironically, these four grievances were initially referred to
arbitration by OPSEU head office in error on March 14th, prior to
either a Step 1 o__r a Step 2 meeting having been held with the
College. The College strenuously objected to that in the
following letter to the Council of Regents' co-ordinating officer
(copied at the local level to Ron Martin, Local 244's Chief
Steward):
Sheridan College is in receipt of Lester Yearwood's
correspondence dated March 14, 1996 in which OPSEU is
referring the above captioned grievances to
arbitration.
By way of this letter, I am advising you that the
College is in disagreement with this referral. The
grievances were submitted to Human Resources on
March 3, 1996 and an acknowledgement was provided to
Local 244 on March 11, 1996 (see attached). A Step Two
meeting regarding these grievances is scheduled for
March 20, 1996. As these grievances have not yet been
processed through the internal step procedure and the
College has not received a referral to arbitration by
the union local, I am requesting that the Counsel of
Regents not arrange a hearing date at this time.
Mr. Martin immediately advised head office to cancel the
referral, at the same time issuing a strong rebuke in the
following terms:
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Dear Brother Lester:
Re: Grievances of Sibbick, Norm LOCAL 244
Layoff; Transfer of Various Articles;
Grievances (2) dated 96/03/03
Kindly read our grievances in the future. We are
merely keeping you posted on what progress we are
making, as there have been problems in the past with
the Hamilton Office keeping track of our grievances.
We will let you know when we have finished the second
step on this grievance, at which time it can be
properly posted for arbitration.
In solidarity
"Ron Martin"
Ron Martin
Chief Steward, Local 244
Sheridan College
LM
cc Damian Borrelli, Executive Director, Human Resources
Ron Davidson, Grievance Department, OPSEU H.O.
P.S. We have also been copying you on approximately 50
layoff grievances which have passed Step 1, but have
not reached Step 2. DO NOT SET THESE FOR ARBITP~ATION
until we have advised you that Step 2 has been
completed and the College has refused to back off their
positions.
As noted, the parties did subsequently come to discuss these
grievances in a meeting on March 2Otb, and given the divergence
of their views, at that time agreed that that meeting would serve
as both the Step 1 and Step 2 meeting. The deadline for a Reply
by the College according to the collective agreement would thus
have been April the 4th. On March 27th, well ahead of that, the
College's Human Resources Department was working on the drafting
of a reply through Susan Bawden, a Labour Relations Assistant
whose responsibility it is to co-ordinate the grievance and
arbitration process for the College. That work in fact
continued beyond normal office hours, and by 6:15 p.m. the reply
was ready for Mr. Borrelli's signature. The Human Resources
Department is located on the second floor of the College
building, and the Union office on the ground floor under it. Mr.
Borrelli was preparing to attend a meeting of the Board of
Governors at the College that evening, and as the Local
President, Norm Sibbick, sits on the Board and had been seen by
Ms. Bawden at the College earlier that day, Ms. Bawden thought
that Mr. Sibbick might be still present in the Union office as
well. A colleague in the Benefits side of Human Resources, Lynn
Barrett, was just getting ready to leave, and as the way out to
the parking lot requires one to pass by the office of the Union,
Ms. Bawden asked Ms. Barrett if she would drop the envelope off
to Mr. Sibbick on the way out. Given the hour, Ms. Barrett had
the forethought to ask Ms. Barrett what she wanted her to do if
the Union office were closed, and Ms. Bawden advised her in that
event to slip the envelope under the door. When Ms. Barrett got
to the Union office, it was closed and dark, and Ms. Barrett slid
the envelope under the door as instructed. The next morning Ms.
Bawden inquired of Ms. Barrett whether in fact she had slipped
the envelope under the door, or had been able to deliver it to
someone in person. Ms. Barrett indicated that she had had to
slip it under the door. Notwithstanding that response, Ms.
Bawden made no call to the Union office thereafter to confirm
that the document was actually received. It was the evidence of
Ms. Bawden that the parties had been in the habit of slipping
"correspondence" under each other's door after closing hours from
time to time, but that she had specifically asked the question of
Ms. Barrett on this particular occasion "because it was a very
important matter" Lin Martin, the Local office's secretary,
testified that the College does from time to time leave less
critical items under the door after closing, but never, in her
experience, something as time-sensitive as a grievance document.
She testified that the latter would be a very unwise thing to do,
unless perhaps it were the final day to respond, because the
office is small and sOmewhat cluttered by stacks of old-file
boxes. Ms. Martin added that cleaning staff come in at night,
and that a number of executive officers have keys as well. Ms.
Martin noted that there has in the past been at least one piece
of old correspondence that she recalls being discovered under a
desk, having been kicked there accidentally by someone entering
the office to turn the lights on. Ron Martin (no relation)
testified that over his many years in office, this is the first
time he can recall the College delivering a Step 2 reply under
the door, although Mr. Martin at the same time concedes that
other types of correspondence have been left that way, and that
he himself has delivered grievance referrals to the College
President under the door on occasion, after five o'clock.
It was the evidence of Damian Borrelli that, upon his
arrival at the College as Executive Director of Human Resources
in May of 1994, it was his intention to clean up the number of
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grievances sitting in limbo, and from a procedural point of view
to run a tighter ship. That more rigid stance by Mr. Borrelli is
not really disputed, and in fact was the subject of comment by
the former Union President, Jack Urowitz, in the Union's
newsletter of September 1994. In 1996 Mr. Martin himself wrote
to his members, as the lay-off grievances were piling up, as
follows:
DATE: March 11, 1996
If you asked your supervisor or a college official for
a discussion of why you were selected for layoff and
that discussion did not take place during a period of
four calendar days from the date of your layoff (time
period extended from three days to four days by mutual
consent between the College and Local 244), then you
should complain (verbally) to your supervisor that the
College has violated the provisions of 27.05(vii) which
states the time frame within which the meeting must be
held. Ask that your notice of layoff be withdrawn
because of the violation of the contract. Your
supervisor must reply within seven days. If the reply
is negative, follow the same steps and time lines as
were given in the generic grievance response to your
layoff notice.
Some persons who are on the layoff list appear to have
been informally told by their supervisor that they must
have part of their vacation during the layoff notice
period. There are any number of precedents which state
this is not appropriate. If you are officially
notified, or even suspect you have been notified,
complain verbally to your supervisor that this is not
appropriate and that you want your vacation to follow
the conclusion of the layoff notice period. If you
receive a negative response or no response within seven
days, commence the grievance procedure as outlined
below.
The Joint Employment Stability Committee is discussing
the "retraining" situation in the contract. As soon as
we have made a joint determination of appropriate
procedures concerning retraining, we will issue another
bulletin.
9
TRACKING GRIEVANCE TIME LIMITS: While we will keep
copies of all your grievance responses and your
grievances, we must ask that YOU TRACK YOUR OWN TIME
LIMIT SITUATION - REMEMBER - the college and their
lawyers will attempt to disqualify you on
technicalities. This may be unpleasant, but they do
this.
Notwithstanding that background, however, it was obvious that
there was an "unprecedented" volume of grievances being generated
by the large-scale lay-off, and to maintain continuity Mr.
Borrelli was trying to sit as the President's designee at Step 2
on all of them -- both individual and Union alike. The Union
recognized that, and was prepared to allow some latitude in the
time-lines for meetings, so long as the member whose grievance it
was was agreeable in that regard as well. Lin Martin testified,
however, that, in spite of Mr. Martin's memo to the faculty, she
herself had a system for bringing forward the time-lines on
individual grievances, so that she could call each member at the
appropriate time and remind them. For the "Union" grievances,
Norm Sibbick, the President, testified, there was not the same
anxiety over meetings taking place and replies being received in
a strictly timely fashion; they knew that Mr. Borrelli was being
deluged, and the greater concern of the Union was to have their
objections considered by the College, and responded to in a
comprehensive fashion. Thus, while, as Ms. Martin testified, she
would have noted in the files the date of receipt of the Step 2
replies on the initial four Union grievances on March 27th (the
date of "delivery") had those replies indeed come to her at that
time, the fact is that neither she nor Mr. Martin nor Mr. Sibbick
10
(nor anyone else in the Union to their knowledge) actually saw
those replies until April 24th. Mr. Martin had himself been out
of province for that intervening period, and Mr. Sibbick was
content to wait a period for a considered reply from Mr. Borrelli
as indicated. Thus the Union did not press the matter, until Mr.
Martin and Mr. Sibbick on Mr. Martin's return discussed the
grievance situation, and a call was put in to Sue Bawden
reminding her that the replies were still outstanding. At that
point Ms. Bawden advised Mr. Martin that the replies had already
been delivered, and Mr. Martin said that she had better send him
another copy. Ms. Bawden did that, and from there the parties
join issue on the arbitrability matter that has been raised
before us.
The first question the board has to decide is: did the Union
"receive" the Step 2 Reply on the initial four grievances on
March 27th, within the meaning of Article 32.03 of the collective
agreement? The Union does not challenge the statements of the
College representatives w~en they say that the Reply was passed
under the door after working hours that day. On the other hand,
notwithstanding the lengthy evidence in the case, the College in
the end does not argue that the Union representatives are being
untruthful when they say that they did not in fact get it. The
time line is specified to run from the date of "receipt by the
grievor of the decision of the College official" Here the
"grievor" is the Local Union. But the "Local Union" can only act
through its representatives. We find that none of those
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representatives actually received the Reply until April 24th,
1996. Mr. Hamilton argues that the Reply should be taken to have
been received, however, based on the fact, as he put it, that it
was delivered to the Union office "in the normal course" There
is, of course, no "deemed" or "prima facie" rule of law,
statutory or otherwise, that establishes receipt by the delivery
of something under a door, after office hours. A party who
elects to do that is putting itself, at the very least, at the
mercy of the night cleaning staff, and in our view, if only for
the purposes of the issue here, chooses to act at his or her own
risk. And that really ties in to Mr. Hamilton's secondary
argument, which is that even if the Union is found not to have
received the Reply by April 24th, by virtue of Article 32.05 B
the Union was expressly entitled to proceed to arbitration on its
own, and the failure to do so within 15 days (of April 4th)
constitutes abandonment under Article 32.05 A in any event. See
Fanshawe College (Begert), decision of arbitrator Brent dated
September 4th, 1992; Fanshawe College (Dobos), decision of
arbitrator Swan dated November 26, 1991; Cambrian College
(Bailey), decision of arbitrator Swan dated October 18, 1994; and
St. Clair College (Murray), decision of arbitrator O'Shea dated
March 8th, 1982.
Those two articles once again read:
32.05 A If the grievor fails to act within the time
limits set out at any Complaint or Grievance Step, the
grievance will be considered abandoned.
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32.05 B If an official fails to reply to a grievance
within the time limits set out at any Complaint or
Grievance Step, the grievor may submit the grievance to
the next Step of the grievance procedure.
We note, to begin with, that Article 32.05 B, applying in the
face of defaulting behaviour on the part of the other party,
simply says that a grievor "may" in that event proceed to the
next step. Whereas, Article 32.05 A, dealing with a grievor's
own inaction, states that the grievance "will be considered
abandoned". Thus on the language alone we have considerable
difficulty with the employer's argument: that a default on its
part requires the other party to track the time lines exactly (in
terms of when the other party should have acted) and to proceed
on its own, against strict consequences, based on the other
party's time lines. Some of the cases cited by the College are
only marginally on point, and in the Cambrian Colleqe case, we
note that the delay was one of some 2 1/2 years, in filing a
grievance. "Abandonment" could therefore be supported in that
case on other grounds. More importantly, the College's principal
case in point, Fanshawe (Beqert), was in fact overturned on
review: OPSEU v. Fanshawe College (1994), 68 O.A.C. 386. At
page 389 Adams J. stated for the Court:
[8] It is clear that in the letter dated October 6,
1988, the respondent College took the position that the
grievance procedure set out in article 11 did not apply
although offering the grievor the services of the Human
Resources staff and a meeting, if she so desired.
Moreover, not only did the College disclaim the
application of article 11, by its own conduct, the
College did not abide by its requirements. Then, on
October 31, 1988, the College wrote to the grievor
taking the position that article 11 did apply and that
the mandatory time limits set out therein had expired.
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Accordingly, the grievance was now deemed by the
College to have been abandoned. A majority of the
Board of Arbitration endorsed these entirely
inconsistent positions of the respondent, holding that
an unexplained time limit of 20 days, and for some
reason running from October 6, 1988, had expired. The
Board observed it was without statutory authority to
relieve against the deemed abandonment provided for by
the agreement.
[9] We are all of the view an employer cannot take
the position that a grievance procedure containing
mandatory time limits does not apply and then assert
those same time limits after their expiration, without
prior notice to the grievor and the Union that this
will be its position. Unfortunately, the majority
decision failed to recognize this most basic and
fundamental principle of fairness and, thereby,
rendered a patently unreasonable result. We emphasize
the College did not itself comply with the provisions
of the grievance procedure but, nevertheless, sought to
impose the time limits contained therein on the grievor
without notice. This was patently unreasonable, if not
unconscionable, conduct by the College and a decision
of a board of arbitration insensitive to such conduct
is itself patently unreasonable as a matter of law.
The decision is therefore quashed.
While, as Mr. Hamilton notes, the facts in that case are
distinguishable from the present case, it seems to us that the
principle is not. And that is, that a party cannot, without
more, rely on its own default to trigger an obligation on the
other party to then proceed in a "timely" way, measured from the
point of the default. Compare also Alqonquin College (Graham) a
decision of arbitrator Weatherill dated August 16th, 1982; and
Georqian College (Union Grievance), a decision of arbitrator
Teplitsky dated November 13th, 1990, wherein he stated, at page
3:
In my opinion, the employer cannot rely on the Union's
failure when its own breach of the Collective Agreement
caused or contributed to this failure.
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It may be that, in light of the "practice" of even grievance
documents on occasion being delivered in this fashion before (in
terms of specific evidence, by Mr. Martin at least), a party
electing to do that at Sheridan might be relieved from the
consequences of any alleged default on its own part flowing out
of that; but that, in our view, is categorically different from a
party attempting, on the basis of its own default, to visit
strict consequences on the other party. In the circumstances
here, for the College's "preliminary objection" to succeed, the
evidence must point compellingly to actual receipt by Union
officials of the Reply in question, and we find that it does not.
The timeliness objection with respect to the initial four
grievances is therefore dismissed.
The "procedural" objection against the hearing of the fifth
Union grievance we find to be even more bereft of merit. That
grievance was dated April 2nd, 1996, and received by the College
on April 4th. By April 24th, the Union had the Step 2 Reply to
the first four grievances, as discussed above, and in their haste
to then get things moving, they referred all five of the Union
grievances relating to these layoffs to arbitration at once. The
College responded with an objection that for this fifth
grievance, no meeting had yet taken place. That was part of an
April 30th memorandum from Mr. Borrelli to Mr. Sibbick setting
out the College's preliminary objections, and stated:
In addition, a fifth grievance, dated April 2, 1996
(96AC69), was attached to your correspondence. This
grievance has been tentatively scheduled for a Step Two
meeting on Monday May 6th at 11:00 a.m. As this
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grievance has not yet been processed through the
internal Step procedure, the College disagrees with the
referral of this grievance to arbitration. Please
confirm the availability of a union local
representative for this meeting with Susan Bawden at
extension 2222.
The parties did, in accordance with that, proceed to a meeting on
that grievance, although for scheduling reasons they agreed to
delay it to May 16th. No mention was made at the meeting of the
College's "objection" (that there had been no meeting), but
rather, following an unproductive debate about the merits, it was
agreed to schedule the fifth grievance for hearing before the
same arbitrator, and on the same dates, as had been selected to
hear the other four. That suggestion was reflected in a
scheduling memo from Sue Bawden to Norm Sibbick which stated as
follows (96C671 being the number assigned by the College to this
fifth grievance):
MEMO TO: Norm Sibbick
President, OPSEU Local 244
copy: Lin Martin
FROM: Susan Bawden
Human Resources
DATE: May 24, 1996
RE: CONFIRMED ARBITRATION SCHEDULE
The College is now in receipt of the Confirmed Arbitration
Schedule for the period September 9, 1996 to October 31, 1996.
The following are the dates, arbitrations and arbitrators
associated with these cases.
September 11, 1996 Union Local grievances -96C282 Mitchnick -96C283
and
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September 25, 1996 Union Local grievances -96C671 Mitchnick
-96C672
-96C673
Please note that Management representatives were not available on
October 17, 1996 which was the tentative date provided for the L.
Drozdowski arbitration.
Norm, we discussed the opportunity to have all five of the above
Union Local grievances heard on one day rather than two. In light
of the fact that the arbitrator is the same for both dates, would
you please advise me of the Union's agreement to have these
grievances combined at one hearing.
Agreement on that was then confirmed in a handwritten memo from
the Council of Regents to OPSEU dated August 20th, 1996 as
follows:
Re: Sheridan College
Sept. 11 & 25 - 5 cases in total
(96C282, 96C283, 96C671, 96C672 & 96C673)
The Local Union and College Management have agreed to
consolidate cases and hear all 5 together, but - over the 2
days (Sept. 11 & 25) as they are in front of the same
arbitrator ...
It is agreed that there has been no formal "re-referral" of the
grievance to arbitration by the Union subsequent to the May 16th
meeting, nor any further reference by the College, either orally
or in any of the scheduling documents, to its "objection" about a
meeting.
In our view, where there has been an unequivocal referral of
the grievance to arbitration, an objection by the College that no
meeting has yet occurred on it, a meeting on it, and then an
agreement that the matter would then be scheduled for arbitration
along with the others, it would take a clear indication on the
17
part of the College to establish that its earlier "objection" was
still considered alive. The College did not re-iterate such
objection until a letter from counsel just prior to the hearing -
- we suspect for the same reason we would find such objection to
be without merit if they had: their objection had been simply the
prematurity of going to arbitration without the opportunity for a
meeting, and the parties then had their meeting, and scheduled
the matter for arbitration. In our view there is nothing in the
collective agreement that would mandatorily preclude the parties
from proceeding in that fashion. Any way one looks at it
therefore (i.e., whether as a "waiver" or on the "merits"), this
second preliminary objection on the part of the College is
dismissed.
There are other preliminary objections by the College, which
now must be scheduled for hearing. The only other issue before
the board for decision at this point is that of "costs", for the
adjourned first day of hearing in this matter, on September llth,
1996. The College and its counsel attended at the scheduled
hearing in Oakville that day, as did the board. Unfortunately,
that was 4 or 5 days into a strike against OPSEU by its staff,
and when counsel for OPSEU arrived at the hearing site, he
encountered a picket-line. Counsel advised the board that he was
declining to cross the picket-line. That meant that OPSEU,
unknown to it, and notwithstanding its retention of counsel, was
not being represented at the hearing, and over the objection of
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the College, the chair felt obliged to adjourn the matter, the
College now wants its costs against OPSEU.
Article 32.04 E provides:
32.04 E The College and the Union shall each pay one-
half the remuneration and expenses of the Chair of the
arbitration board and shall each pay the remuneration
and expenses of the person it appoints as arbitrator.
These are, the College submits however, special circumstances,
and the College points to some cases that would support a
departure from the norm on the question of wasted costs where, as
here it submits, the situation was within the control of the
defaulting party: Hawker Siddely (1989), 7 L.A.C. (4th) 172;
Cambrian College (Seleck¥), decision of arbitrator McLaren dated
April 30th, 1993; and at least by way of obiter, E & L Caterinq
(1992), 27 L.A.C. (4th) 129 (Solomatenko).
We have difficulty with the submission that the situation
here was "within OPSEU's control". OPSEU, as employers are
allowed to do, made the decision to attempt to continue to
operate during a strike. To that end it retained outside counsel
in this case to represent it at the hearing, and ensure that it
could maintain "business as usual". This particular hearing
arose early in the strike, however, and was outside Toronto, and
it was not obvious that there would be a picket-line to contend
with. There was, therefore, no discussion on the issue between
OPSEU and its counsel prior to the event. When counsel did in
fact encounter a picket-line, he elected not to cross. Because
of the timing and lack of normal staffing at the OPSEU office,
counsel was not able to "discuss" that question with the client,
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OPSEU. OPSEU, therefore, had no knowledge that it was being
unrepresented at the hearing, and no opportunity to consider what
measures it might take to ensure, as it believed it had already
accomplished, that the hearing would proceed as scheduled. In
the circumstances, therefore, we do not see the last-minute
"unavailability" of OPSEU's counsel, uncommunicated to OPSEU, as
grounds for exercising an extraordinary jurisdiction (assuming
such exists) for an after-the-fact award of costs. The College's
request for indemnification is accordingly denied.
The matter will continue, on dates to be set.
Dated at Toronto this 2nd day of January, 1997
M. G. Mitchnick
I concur "M. Sullivan"
M. Sullivan
I dissent (see attached) "J. Campbell"
J. Campbell
DISSENT
I regret that I find it necessary to dissent from the majority
award in this matter.
In particular, I cannot concur with the findings with respect to
when the Union received the Step 2 Reply within the meaning of
Articte 32.03 of the collective agreement. The evidence before the
Board clearly indicated that both parties had from time to time
delivered correspondence by slipping material under the office door
after working hours and it was an accepted method of delivery.
Also, the Union did not challenge the evidence from College
representatives that the response to the grievance was slipped
under the door of the Union office on March 27. Surely, it was
incumbent on the receiving party to organize its office in such
a way to ensure that deliveries were not misplaced. Given the
practice of the parties and the uncontradicted evidence of the
College representatives, I would have found that the Union did
indeed receive the College's response to the grievances on March 27
and the time constraints with respect to the next step started on
on that date.
With respect to the comments regarding Article 32.05 B, and the use
of the words "may submit the grievance to the next Step of the
grievance procedure", I believe it only reasonable to infer from
the collective agreement language that a grievor also "may not"
proceed to the next step. Surely if it was the intention to proceed
to the next step, then that process should have been intitiated
within the prescribed time limits.
~Iacqu~line G. Campbell
December 10,1996 Employer Nominee