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HomeMy WebLinkAboutBishop 00-01-05 IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE (Hereinafter referred to as the College) AND OPSEU (Hereinafter referred to as the Union) AND IN THE MATTER OF THE GRIEVANCE OF BONNIE BISHOP (98C274) BOARD OF ARBITRATION: Gail Brent Hugh John Cook, College Nominee Menno Vorster, Union Nominee APPEARANCES: FOR THE COLLEGE: Kimberly D. Pepper, counsel Pennie Carr-Harris Betty Boone FOR THE UNION: Michael Gottheil, counsel FOR THE GRIEVOR Thomas R. Swabey, counsel Bonnie Bishop, grievor Hearing held at Kingston, Ontario on December 7, 1999. DECISION The sole issue to be determined in this decision is whether, once the Union has decided to withdraw the grievance, the grievor can have carriage of the matter at arbitration. In order to place 2 this issue in context, it is useful to describe what occurred before this board of arbitration leading up to the hearing on December 7th where the issue was argued before us. We should also state for the record that at the hearing on December 7th no objection was made concerning the composition of the board of arbitration or its jurisdiction to consider the issue in question. On November 9, 1998 we convened a hearing to hear the grievance of Bonnie Bishop dated May 5, 1998. That grievance arose out of the College's decision to displace the grievor with another employee, Shirley McGlynn, who it was agreed is senior to the grievor. The grievance read as follows: As an employee of St. Lawrence College, ! am grieving the decision regarding my position as per article 15. It was later amended by letter dated May 26, 1998 to include Article 18.7.2.1. At the hearing, the Union appeared and in its opening statement took the position that the College had violated Article 15.4.3 by assigning McGlynn to the position of Athletic Director/Student Life Coordinator, which was held by the grievor. The Union also informed us by way of opening statement that it was alleging that the process was flawed in that there was either actual bias or a reasonable apprehension of bias because McGlynn had sat as a Union member of a committee which either played or may have played some role in the process whereby the displacement occurred. That latter issue had not been raised before the date of the hearing. As a result, there ensued some discussion between the parties and involving the board members about how to proceed. Eventually it was agreed to adjourn and the Union informed us that it estimated that it would need two days to deal with the bias issue alone. At this stage the Union was still asserting that there was a violation of the collective agreement, and McGlynn had been given notice as an interested third party whose 3 fights might be adversely affected by the outcome of the heating. For a variety of reasons, none of which are relevant to this matter, the hearing was not reconvened until October 13, 1999. At that time the Union was represented by different counsel, albeit from the same firm which had appeared for it in November 1998. When the hearing was convened, counsel for the Union informed us that he was requesting an adjournment on behalf of the grievor so that she could seek independent advice. He further informed us that upon reviewing the matter he had come to the conclusion that there was a potential conflict of interest between the Union and the grievor regarding the position to be advanced on the merits of the grievance. We were not advised then that counsel for the Union had received instructions to withdraw the grievance, and it was our understanding then that the Union had not decided what it would do in relation to the grievance. The College resisted the adjournment request for reasons that are not relevant to this decision. At the end of the day the matter was adjourned to December 7, 1999 on the following conditions: 1. The Union would advise everyone by a given date whether it or the grievor or both of them intended to proceed on the merits of the case. 2. If the Union indicated that it would not proceed on the merits and if carriage rights were to be an issue, then the College and the board of arbitration should be made aware of that. 3. The board of arbitration would reserve on the matter of whether costs would be a condition of the granting of the adjournment, and that would be argued at some later time. (That "later time" was December 7th and the decision regarding costs is dealt with in a separate award.) 4 On or about October 25, 1999 counsel for the College informed the board of arbitration that, "It is our understanding that when the hearing resumes, the first issue before the Board will be whether the Grievor has independent carriage of the grievance." We therefore reconvened on December 7th, at which time the grievor was represented by her own counsel, and the Union and College were also represented. At the hearing Union counsel informed us that the Union did not wish to proceed with the grievance and was withdrawing it because it did not consider that the collective agreement had been violated by a senior employee displacing a junior employee. The Union also informed us that it would be asserting that the grievor had no rights of carriage at arbitration and that, the grievance having been withdrawn, there was no longer any dispute between the parties to the collective agreement for us to resolve. The College informed us that its position was that under the collective agreement an individual employee does not have carriage and cannot refer the matter to arbitration. It also informed us that in this case it was waiving its objection to the grievor's assertion of carriage rights without precedent or prejudice and would not present argument. The grievor is asserting that she does have carriage rights and should be allowed to litigate her grievance. The issue was thus placed before us for determination. In the course of their argument counsel referred us to several sections of the collective agreement. For ease of reference some of those are reproduced below: 1.1 Exclusive Bargaining Agent The Union is recognized as the exclusive bargaining agent for all Support Staff employees of the Colleges, save and except: 3.1 Union Acknowledgments The Union acknowledges that it is the exclusive function of the Colleges to: - maintain order, discipline and efficiency; - hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance as provided for in this Agreement; - generally to manage the College and without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment or cessation of operations and all other fights and responsibilities not specifically modified elsewhere in this Agreement. 18.1.4 Grievance "Grievance" means a complaint in writing arising out of the interpretation, application, administration or alleged contravention of this Agreement. 18.3.3 Union Grievance The Union shall have the fight to file a grievance based on a difference arising directly out of the Agreement concerning the interpretation, application, administration or alleged contravention of this Agreement. However, such grievance shall not include any matter upon which an employee is personally entitled to grieve and the regular grievance procedure for a grievance peculiar to an individual employee shall not be bypassed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of persons in the bargaining unit. A Union grievance shall be presented in writing, signed by the Local Union President or his/her designee to the Director of Personnel or as designated by the College concerned, within fourteen (14) days after the circumstances giving rise to the complaint have occurred or have come to the attention of the Union. The grievance will then be processed in accordance with Step No. 3 of the grievance procedure. 18.7 Grievance re: Dismissal, Suspension or Layoff 18.7.1 General Articles 18.7.2 and 18.7.3 apply to an employee covered by this Agreement who has completed his/her probationary period, it being understood that the dismissal, suspension or release of an employee during the probationary period shall not be the subject of a grievance. 18.7.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause or improperly laid off or reassigned shall, within fifteen (15) days of the date he/she is advised in writing of his/her dismissal, suspension, layoff or reassignment present his/her grievance in writing to the President, commencing at Step No. 3 and the President, or his/her designee shall convene a meeting and give the grievor and the Union Steward his/her decision in accordance with the provisions of Step No. 3 of Article 18.6.1.3. A Union Staff Representative may be present at such meeting at the request of either the College or the Local Union. 18.7.2.1 Layoff Grievance An employee claiming improper application of Article 15.4.3, shall state in the grievance the position(s) and name of incumbent, if any, to which the employee claims entitlement. The College will provide PDFs of the positions, named in the grievance, to the employee within three (3) days after the filing of the Step 3 grievance. If the grievance is processed through Step 3, the written referral to arbitration shall specify, from the position(s) originally designated, no more than four (4) positions which shall thereafter be the subject matter of the grievance and the arbitration. 18.7.3 Arbitration If the grievor is not satisfied with the decision of the President, the grievor shall, within ten (10) days of receipt of the President's decision by notice in writing to the Director of Personnel or College's designee, refer the matter to arbitration, as provided in this Agreement. 18.7.4 Powers The Arbitration Board shall have those powers set out in the Colleges Collective Bargaining Act, 1990. 18.7.5 Limitations The Arbitration Board shall not be authorized to alter, modify or amend any part of the terms of the Agreement nor to make any decision inconsistent therewith nor to deal with any matter that is not a proper matter for grievance under this Agreement. 7 18.8 Arbitration Procedure 18.8.1 Referral to Arbitration 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 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 Official at Step No. 3 be referred to arbitration as provided. Counsel for the grievor argued that the language of the collective agreement made it clear that in certain types of cases the employee is given carriage of the matter at arbitration. He asserted that the Union, having initially taken up the grievor's cause, now has left the grievor without recourse by taking the position that it has the sole right to withdraw the grievance. Counsel pointed to Articles 18.3.3, 18.7.1, 18.7.2, 18.7.2.1, and 18.7.3 and the use of words such as "employee" and "grievor" in those provisions as indicating that the parties agreed that in cases of dismissal, suspension or layoff there was a personal right to grieve, and a procedure for the individual to refer to arbitration. He argued that, if that position is correct, then it follows that if the Union chooses not to continue with the arbitration the grievor has the right to continue. Counsel also argued that we should consider natural justice and allow the grievor to continue with the arbitration. He asked us to consider that the collective agreement was drafted in light of the judicial decisions concerning the rights of interested third parties. Counsel for the Union asserted that it was withdrawing the grievance because to continue with the grievance would require it to argue that a senior person who is qualified cannot bump a junior person even though the latter might be more qualified. He asserted that, given the importance which the Union places on seniority rights, it would not want to pursue and win a grievance which tried to import a competition rather than a threshold standard into bumping. Counsel also pointed 8 out that the Union bears a responsibility not only to the grievor but to all of the employees in the bargaining unit. He argued that to deny the Union the right to determine if a matter should be arbitrated would be to deny the Union its right to administer the collective agreement. Counsel for the Union also argued that the board of arbitration is a creature of the collective agreement which derives its jurisdiction from the parties to the agreement telling it that there is a dispute or difference to be resolved. He said that it follows then that where the parties say there is no dispute as between them, the board of arbitration has no jurisdiction to proceed. Counsel also argued that for the board of arbitration to find that the grievor has carriage rights in such a circumstance would require clear and unambiguous language. He said that although the language here may be unique, it cannot be said that the only or proper interpretation of that language is to give the individual carriage rights. Counsel for the Union further submitted that the agreement before us is a "collective agreement" and that a benefit that flows to any particular employee or employees may also limit the rights of other employees. He said that the Union, both under the collective bargaining regime and by statute, has an obligation to balance the interests of the bargaining unit as a whole; and that any debate about whether any employee or group of employees have rights which are subordinate to others within the group is a matter for debate within the Union and ultimately for resolution by the Labour Relations Board should the employee(s) consider that they have been unfairly represented. Counsel for the Union also referred us to authority which supported the position that a distinction must be drawn between the grievance and arbitration procedures. He argued that whether or not there was an issue for a board of arbitration to decide is determined by the arbitration provisions and not the grievance provisions. He submitted that Article 18.8.1 makes the existence 9 of a difference between the parties a condition precedent to a board of arbitration having jurisdiction. He also argued that the authorities concerned with the interests of third parties do not assist here because they do not give the individual the right to pursue a matter if the parties determine there is no difference between them. In reply, counsel for the grievor asserted that the bumping provision (Article 15.4.2) is not one which asserts that seniority must take priority over qualifications. He also pointed out that, like Article 18.4 which contains a complete code for classification grievances, Article 18.7 provides a complete code for dismissal, suspension or layoff grievances, and does provide for individuals to carry a matter at arbitration. He also submitted that the Union's rights as set out in Article 1 must be read in light of the collective agreement as a whole, including the individual's rights to pursue a matter to arbitration in certain cases. The authorities to which the parties referred us were: Re Hoogendoorn and Greening Metal Products & Screening Equipment Co. et al. (1967), 65 D.L.R.(2d) 641 (Can. S.C.); Re Bradley et al. and Ottawa Professional Fire Fighters Association et al., [1967] 20.R. 311 (C.A.); Blake et al., (1988) unreported (Ont. G.S.B. files 1276/87, 1342/87, 1858/87, 1887/87, 1888/87, 1889/87, 1890/87, 1891/87, 1892/87, 2292/87 Shime); Canadian Labour Arbitration (Brown & Beatty) section 2:3110; and Colleges Collective Bargaining Act, R.S.O. 1990, c. C. 15.11. It is acknowledged by all three counsel that the general rule is only the parties to the collective agreement, that is, the Union and the College, have carriage rights at arbitration. We were referred to nothing in the Colleges Collective Bargaining Act which would undermine that general rule. Further, we must acknowledge that as a board of arbitration we are a creature of both the Colleges Collective Bargaining Act and the collective agreement, and that our jurisdiction to hear and 10 determine any dispute is grounded in them. We are constrained not to alter, modify or amend the collective agreement nor to make a decision which is inconsistent with it (see Article 18.7.5). Before examining the collective agreement; however, let us look at the cases to which we were referred. Neither Hoogendoorn nor Bradley are factually similar to the case before us, in that neither case involves an individual claiming carriage rights where a Union has determined that there is no issue between the parties concerning the proper interpretation or application of the collective agreement. Both cases involve bargaining unit members whose interests would be adversely affected if the union succeeded in an arbitration between the union and the employer. At page 651 of the Hoogendoorn decision Mr. Justice Hall, speaking for the majority, defined the issue in both Hoogendoorn and Bradley as follows: In both cases the issue was whether an employee whose status was being affected by the hearing was entitled to be represented in his own right as distinct from being represented by the union which was taking a position adverse to his interests. That is not the issue before us. If the Union is correct, then there would be no hearing and no consequent interpretation of the collective agreement which would affect the grievor's status. While those cases direct us to ensure that interested third parties are given the opportunity to be represented in their own right, they do no direct us to ensure that grievances are heard where the Union has determined that the College has not misinterpreted or misapplied the collective agreement. The Blake case raises the same issue as the one before us, albeit under a different collective agreement and legislative regime. In deciding that case, the Grievance Settlement Board (hereinafter referred to as the GSB) had to interpret s. 18(2) of the Crown Employees Collective Bargaining Act which is reproduced at page 3 of the award. That provision said, in essence, that "an employee claiming" certain things set out in the section "may process such matter in accordance with the 11 grievance procedure in the collective agreement, and failing final determination under such procedure, the matter may be processed in accordance with the procedure for final determination applicable under" the arbitration provisions. In that case the GSB cited with approval one of its earlier decisions in Amalgamated Transit Union, Local 1587 and the Crown in Right of Ontario (GSB file 1528/86). That case involved a situation where the Union had decided not to process the grievance to arbitration and had withdrawn it. In the passages quoted at pages 5 and 6 of the Blake decision the GSB found as follows: We agree with the submission that, by reason of the settlement of this matter between the Union and the Employer, the matter cannot be brought independently to the Board by the grievor .... Nor is this conclusion inconsistent with the statutory policy reflected in Section 18(2) by which employees are given a statutory right to grieve independently of the Union. At first glance it may appear that this statutory right is significantly compromised if it can be barred by a prior settlement of the grievance by the Union. However, it is important not to lose sight of the fact that the Act as a whole is an Act designed to regulate collective bargaining in the public sector. Primarily the employment interests of public sector employees are intended to be protected through collective bargaining. We do not regard the collective interests to be protected only at the negotiation stage of collective bargaining. They are also protected at the stage of contract administration. This view is well established in the private sector where Labour Relations Boards have frequently stated that a union enjoys a discretion to determine whether or not, in the interests of the collectivity an individual grievance should be settled or withdrawn. A useful account of the relationship between contract negotiation and contract administration may be found in Rayonier Canada Ltd. v. IWA (1975), 2 Can LRBR 196 (B.C.) In our view the statutory language considered by the GSB is similar to the language used by these parties in Article 18.7. Let us then examine the language of this collective agreement in greater detail. Article 18.3 defines various types of grievances including a "Union Grievance" in 18.3.3. It is trite to say that grievances are generally initiated by employees who consider that the collective agreement has been 12 violated as it has been applied to them. Article 18.3.3 limits the Union's right to grieve where an individual employee could have grieved but has chosen not to. In our view, its very presence and the limitation imposed strengthens the view that the parties did not intend to create a regime where the individual would have carriage rights at arbitration. The implication to be drawn from that article is that but for the limitation on the Union it would have the right to grieve and process a grievance through to arbitration even though the individual employee did not wish to do so. Article 18.3.3 is consistent with the notion that the Union is responsible for the administration of the collective agreement in the interests of the collective rights of the bargaining unit as a whole. Of all of the provisions of the collective agreement cited to us, Article 18.7.3 is the one which lends the greatest support to the grievor's position. That article makes no mention of the Union whatsoever and simply refers to the grievor referring the matter to arbitration "as provided in this Agreement". However, 18.8.1 and the rest of the Arbitration Procedure set out in Article 18.8, as well as that set out in Article 18.7 as a whole, is what is "provided in this Agreemenf'. When those provisions are read it is not at all clear that what the parties to the collective agreement intended to create was an arbitration procedure between an individual employee and the College. Quite the contrary, the provisions are clearly consistent with an ultimate dispute resolution mechanism for disputes between the parties to the collective agreement. In our view Article 18.7 does not confer upon the individual the right to control the arbitration procedure. It has long been recognized that the grievance procedure and the arbitration procedure are separate. In order to discharge its obligations to the bargaining unit as a whole the Union must retain the right to refuse to arbitrate a grievance where it has determined that the position the grievance takes is inconsistent with the collective agreement. It would be ludicrous to expect a Union to carry 13 a grievance through to arbitration where it considered that the College had not misinterpreted or misapplied the collective agreement. Surely the parties themselves must be the ones to decide if there is an issue between them. In this case, the Union having withdrawn the grievance, there is no longer an issue between the parties for us to determine, and we are without jurisdiction to consider the merits of the grievance which the grievor has filed. We find the reasoning adopted in the Blake case to be compelling and applicable in this case. That is not to say that we are totally without sympathy towards the grievor. We do not know, nor are we asserting, that the grievance is with or without merit. We do know that it took the Union a very long time to come to the conclusion that the grievance should be withdrawn, and we can surmise that its actions must have been both confusing and possibly infuriating for the grievor. Be that as it may, we have no jurisdiction beyond that which the parties and the Colleges Collective Bargaining Act have conferred upon us, and we can go no further in this matter. Any dispute the grievor has with the Union must be dealt with internally or before another body. For all of the reasons set out above, we find that, the grievance having been withdrawn by the Union, the grievor does not have carriage of the matter to arbitrate it. DATED AT LONDON, ONTARIO THIS 5TM DAY OF JANUARY, 2000. Gail Brent 14 I concur Hugh John Cook, College Nominee I concur Menno Vorster, Union Nominee