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HomeMy WebLinkAboutMichaud, Topa, Besten 99-03-24 IN THE MATTER OF AN ARBITPJ~TION ~ '~ ( ~' ) BETWEEN: ~ ~ ~ '~ NIAGARA COLLEGE -and- ONTARIO PUBLIC SERVICES EMPLOYEES UNION GRIEVANCES OF MICHAUD. TOPA & DFN BESTFN .BOAR D OF ARBITRATION: JANE H. DEVLIN CHAIR JACQUELINE CAMPBELL COLLEGE NOMINEE JON MCMANUS UNION NOMINEE WALLA(;F M, KENNY, FOR THE COLLEGE MAt,,I~.Et::N F. DOYLE, FOR THE UNION OPSEU NO,~.: 98B309 - 98B316 (SUPPORT) 98B317 - 98B321 (SUPPORT) ,98C284 - 98C290 (SUPPORT) I'ItF_.~RtNGI DA'"IE: Y 2 7 1 9 9 9 The grievances which were filed by Yvonne Michaud, Maria Topa and Sue Den Besten were among a large number of grievances filed in July, 1996 as a result of a restructuring which took place at the College. For the most part, these grievances allege violations of the employment stability and layoff provisions contained in Articles 14 and 15 of the collective agreement. At the outset of the hearing, the College advanced a preliminary objection to the arbitrability of the grievances on the ground of timeliness. In particular, the College contended that the grievances were not referred to arbitration within the time limits set out in the collective agreement and, in the circumstances, must be regarded as abandoned. The parties agreed that it would be appropriate for the Board to determine this objection prior to proceeding with the hearing on the merits. The relevant provision of the collective agreement is as follows: 18. COMPLAINTS/GRIEVANCES 18.8 Arbitration Procedure 18.8.1 Disagreement In the event 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, 2 then, by notice in writing given to the other party within ten (10) days of the date of receipt by the grievor of the decision of the College's O~'ficial at Step No. 3, be referred to arbitration as provided. As to the material facts, as indicated previously, in July, 1996, a large number of grievances were filed as a result of a restructuring which took place at the College. The parties initially agreed to extend the time limits for processing these grievances contained in Article 18 of the collective agreement until a meeting could be arranged in mid-August. Thereafter, in mid-September, Nicole Perreault, currently the Manager of Human Resources, wrote to the Union confirming an agreement to suspend the time limits for processing the grievances as long as discussions were taking place between the parties or until she advised otherwise. Subsequently, in May, 1997, the Union made a formal offer to settle the grievances and in July, a document was signed by the parties in which, among other matters, the College offered to provide career planning and training for certain employees who had filed grievances on the understanding that if this offer was accepted, the employees would withdraw their grievances. The document was signed by Carol Boettcher, Vice-President, Community and Learner Services, for the College and by Virginia Wilcox, the former President of the Local. The evidence indicates that although a new Local executive had been elected in June, 1997, members of the former executive, including the Chief Steward, Art Domenicucci, agreed to continue to deal with the grievances which had been filed in July, 1996. Based on the document signed by Ms. Boettcher and Ms. Wilcox, the Union contacted individual employees to advise them of the career planning and training to be offered and the College made arrangements for appropriate consulting services. In December, 1007, the College sent letters to the affected employees and information sessions were held later that month or in early January, 1008 to outline the nature of the career planning and training to be provided. Following these sessions, Mr. Domenicucci met with the employees to discuss the options available and to respond to questions. The evidence indicates that career planning sessions began on January 28, 1998, Ms. Perreault testified that at about that time, she advised Mr. Domenicucci that as career planning was beginning, the time limits set out in the collective agreement for processing grievances would "kick in" and there would be no further discussions between the parties, Ms. Perreault also testified that when it subsequently became apparent that not all grievances would be resolved by the offer of career planning, Mr. Domenicucci acknowledged that based on their earlier conversation, he was aware that time limits were in effect. Mr. Domenicucci testified that he had more than one conversation with Ms. Perreault regarding time limits and that she indicated that if grievances could not be resolved, time limits would have to take effect. He testified, however, that at no time did she specify a date on which this was to occur. He also testified that he would have 4 expected a date to be provided in writing and in these circumstances, would have requested that Ms. Perreault notify the current Union executive as he was primarily involved in attempting to resolve the grievances. Ms. Perreault also testified that once career planning began, she advised Meg Rose, the current President of the local, that as career planning had begun, there would be no further discussions between the parties and that the time limits set out in the collective agreement for processing grievances would take effect. In this regard, Ms. Rose testified that she was aware in late January or eady February that individuals who had accepted the offer of career planning were to withdraw their grievances and that grievances which were not resolved by this means were to be processed. Ms. Rose also acknowledged that she understood from Ms. Perreault that the time limits set out in the collective agreement were to take effect although she testified that she was waiting to be advised of the specific date on which this was to occur. Although Ms. Rose also acknowledged that in early February, Mr. Domenicucci advised her that Ms. Perreault had raised the issue of time limits, she testified that he made no reference to the date on which time limits were to take effect. In late February, however, Ms. Rose referred a grievance she had filed to arbitration and testified that there was no suggestion on the part of the College that the referral was untimely. She also testified that career planning was not a method proposed for the resolution of her grievance and although she was initially unable to 5 recall any discussions between the parties regarding her grievance between July, 1997 and the referral to arbitration in February, 1998, she subsequently acknowledged that a grievance meeting was held in December, 1997. She testified, however, that the matter was not resolved at that time. She also testified that she referred her grievance to arbitration in February, 1998, not because she understood that the time limits set out in the collective agreement were in effect but rather because she was "tired of waiting" for the matter to be resolved. The evidence also indicates that in late January, 1998, them was discussions between the parties and an exchange of memoranda in an effort to resolve ("""% the grievances filed by Ms. Topa, However, on February 2, 1998, in a memorandum to Ms, Perreault, Ms. Topa expressed regret that an agreement could not be reached and suggested that Ms. Perreault contact her if she wished to discuss the matter further. Mr. Domenicucci testified that some time prior to February 2nd, he advised Ms. Topa that if her grievances could not be resolved, they would have to be referred to arbitration and indicated that Ms. Perreault had made reference to the time limits set out in the collective agreement becoming effective. Although Mr. Domenicucci also testified that he advised Ms. Topa that she would have 11 days within which to refer her grievances to arbitration once the time limits took effect, Ms. Topa testified that she did not believe that any reference was made to an 11 day period. She also testified that Mr. Domenicucci did not specify a date on which the time limits were to take effed. In any event, in a memorandum to Ms. Rose dated February 10th. Ms. Topa requested that her grievances be referred to arbitration. She testified that she took this step not because she understood that the time limits set out in the collective agreement were in effect but because there were no further discussions between the parties with regard to her grievances. Evidently, at about the same time, Ms. Michaud also requested that her grievances be referred to arbitration. However, Ms. Rose did not refer these grievances to arbitration at the time and testified that she could not recall why she had not done so. Ms. Perreault testified that she had a further conversation with Ms. Rose in which she indicated that it was the College's position that the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten had been abandoned. She also testified that although Ms. Rose requested that she confirm the College's position in wdting, she neglected to do so. In early April, however, Ms. Rose contacted the Human Resources Department and spoke with Colleen St. Anand, a Human Resources Clerk. According to Ms. St. Anand, who made a notation of the conversation, Ms. Rose indicated that Ms. Perreault had agreed that the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten had been abandoned and a letter was to have been sent to that effect. Although Ms. Rose initially testified that the letter she anticipated from Ms. Perreault was to indicate the point at which the time limits set out in the collective agreement would take effect, she subsequently acknowledged that she did not dispute the evidence of Ms. St. Anand regarding the content of their telephone conversation. 7 Thereafter, in letters dated Apdl 30, 1997, which were forwarded to the Union in mid-May, Ms. Perreault advised that as the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Bester~ had not been referred to arbitration within the time limits set out in the collective agreement, it was the College's position that they were abandoned. Ms. Rose testified that following receipt of these letters, she met with Ms. Perreault and Jim Garner, the Director of Human Resources, and that during that meeting, Ms. Perreault advised that the grievances were considered to have been abandoned as of February 10 or 12, 1998. The evidence indicates that subsequent to February 12th, two employees withdrew their grievances, the first being Angela Seddon, who withdrew her grievances on February 16th and the second being Ron Mottola, who withdrew his grievances on March 30th. Ms. Perreault testified that she did not object to the withdrawal of Mr. Mottola's grievances as she was aware that the Union was having difficulty contacting certain employees to arrange for the withdrawal of their grievances. She also testified that had Mr. Mottola attempted to refer his grievances to arbitration in late March, rather than withdrawing them, the College would have objected and taken the position that the referral was untimely. Ms. Rose testified that after meeting with Ms. Perreault and Mr. Gamer, she contacted the Union's regional representative and at a meeting which was subsequently arranged, she was advised that she need not accept the College's position and could refer the grievances of Ms. Michaud, Ms. Topa and Ms. Den Besten to arbitration. Accordingly, on June 19th, Ms. Rose advised the College that she was referring the grievances filed by Ms. Michaud and Ms. Topa to arbitration and on July 6th and 10th, she informed the College that she was similarly referring the grievances filed by Ms. Den Besten to arbitration. The issue is whether the referrals to arbitration of the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten were untimely. In this regard, Article 16.6 of the collective agreement provides that in the event that any difference relating to the interpretation, application, administration or alleged contravention of the collective agreement not satisfactorily dudng grievance procedure, matter is settled the the shall be referred arbitration by notice in writing within 10 days of the date of receipt by the Grievor of the College's reply at step 3 of the grievance procedure. There would appear to be no dispute that the time limits for processing grievances under this collective agreement are mandatory and that a Board of Arbitration has no jurisdiction to extend the time limits set out in the agreement: see Humber Colleae and Ontadp Public Service Fmolovees Union February 18, 1992 (Brown (unreported)) and Carnbrian CQllege and Ontario Public Service Fmployees UniortJuly 9, 1997 (Simmons (unreported)). In this case, the evidence indicates that in September, 1996, the parties entered into an agreement to suspend the time limits set out in Article 16 for processing i '~' ' grievances which had been filed in July, 1996 as long as discussions were taking place or until Ms. Perreault advised otherwise. The evidence also indicates that discussions continued between the parties for a considerable pedod of time and that as a result of those discussions, career planning was implemented, beginning on January 26, 1996. Moreover, although discussions aimed at resolving Ms. Top~a's grievances continued until February 2ncl, there was no evidence of any discussions beyond that point related to the resolution of the grievances filed in July, 1996. At about the time career planning began, Ms. Perreault also spoke with Mr. Domenicucci and later with Ms. Rose and indicated that as there would be no further discussions between the the time limits set out in the collective parties, agreement for processing grievances would take effect. Although as pointed out by the Union, Ms. Perreault made no mention of a specific date on which this would occur, in the Board's view, the failure to make reference to a particular date cannot justify a delay of more than four months in the referral of the grievances to arbitration. Furthermore, while Ms. Rose acknowledged that she may have been aware in February that the College considered the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Sesten to have been abandoned, in any event, she was cleady aware of the College's position by early April when she contacted the Human Resources Office and spoke with Ms. St. Anand. Nevertheless, she took no steps to I refer the grievances to arbitration at that time, nor did she take such steps following receipt of Ms. Perreault's letters in mid-May, 1998. Although Ms. Rose testified that it was not until she met with the Union's regional representative that she understood that she was not obliged to accept the College's position that the grievances had been abandoned, we note that Ms. Rose had previously served as Local President for a period of six years. In any event, in the Board's view, Ms. Rose's understanding cannot excuse the failure to refer the grievances to arbitration for a period of more than four months. Moreover, Ms. Rose acknowledged that, in fact, Ms. Michaud and Ms. Topa requested that she refer their grievances to arbitration in February, 1998 and she failed to do so. In the Board's view, this case is also distinguishable from Fanshawe Colleae and Ontario Public Service EmDIovees Union March 7, 1994 (Bendel (unreported)) in which it was held that by its conduct, the college had waived its right to claim that the grievance was untimely. In this case, in contrast, we find no similar conduct on the part of the college and although Ms. Perreault may not have issued a notice in writing, she clearly informed Mr. Domenicucci and Ms. Rose that with the commencement of career planning and the end of discussions between the parties, the time limits set out in Article 18 would have to take effect. Moreover, the Board is of the view that this case is distinguishable from Re Alberta Union qf Pl'~vincial Emolcy~es and United ~teelworkers. Iocal 5885 (1991), 23 L.A.C.(4th) 423 (T. Jolliffe), which was also relied on by the Union. In that case, although the union was aware that the gdevor had agreed to an extension of the time limits for the employer's reply to the grievance, it did not advise the employer that the grievor had no authority to grant such an extension until the time period for the reply had expired. In these circumstances, the Arbitrator found that the union was estopped from taking the position that the reply was untimely. In this case, although the Union maintained that the College failed to advise it in advance of a particular date on which the time limits set out in Article 18 were to take effect, the parties agreed to a suspension of time limits while discussions were taking place or until Ms. Perreault advised otherwise. In fact, there was no evidence of any discussions between the parties subsequent to February 2, 1998. Moreover, even if Ms. Perreault's failure to mention a specific date on which time limits would take effect could justify some delay in the referral of the grievances to arbitration, it could not justify a delay of more than four months, particularly where the College's position with respect to the grievances was clear to the Union long before that time. In the result, the Board finds that the grievances were not referred to arbitration within the mandatory time limits specified in Article 18 and as the Board has no authority to extend those time limits, we must condude that we are without jurisdiction to determine the grievances. DATED AT TORONTO, this 24th day of March, 1999. Chair 'Jacqueline Campbell" College Nominee " McManus" Union Nominee