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HomeMy WebLinkAboutTaurozzi 99-10-13 IN THE MATTER OF AN ARBITRATION BETWEEN GEORGE BROWN COLLEGE Employer - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION Union AND IN THE MATTER OF A GRIEVANCE OF NICK TAUROZZI Grievor BEFORE: C. Gordon Simmons, Chairperson Mr. Robert Gallivan, Employer Nominee Mr. Michael Lyons, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Ms E.C. Carla Zabek, Counsel Ms Regina Lapworth, Human Resources APPEARANCES ON BEHALF OF THE UNION: Mr. George Richards, Senior Grievance Officer Ms Kimberly Benoit, Steward, Local 557 Mr. Nick Taurozzi, Grievor A hearing into this matter was held in Toronto, Ontario on September 7, 1999. This is a job competition grievance wherein the grievor unsuccessfully applied for the "Atypical Technologist" position in the Maintenance Department at St. James Campus (Competition 95-093). He seeks to be awarded the position. There were two other applicants for the position in the names of Doug Johnson and Mr. Chaudhry. Mr. Chaudhry was the successful applicant and Mr. Johnson has likewise filed a grievance which is proceeding before another arbitration board panel. At the commencement of these proceedings the employer raised a preliminary objection stating the Board lacked jurisdiction to hear the grievance on its merits because the grievance procedure was not followed in a timely manner. It is the employer's position the time provisions contained in the collective agreement are mandatory and not having been complied with renders the grievance inarbitrable. In the alternative the employer advances the position the grievance must be dismissed due to delay. It was agreed by the parties that the preliminary matter would be dealt with before proceeding to hear the merits of the case and if the objections were not sustained the matter would proceed to be heard on its merits. The chronology of events concerning the journey this grievance took is as follows. July 10/1995 The griever files his grievance (ex. 1). July 14/1995 The grievance is denied (ex. 2) July 18/1995 The grievance is appealed to Step 2 (ex. 3). July 20/1995 The Step 2 grievance is denied (ex. 4). Parenthetically, the griever denies ever having received this reply as hz vacation until July 24. However, the employer states that a Mr. Kern delivered the response to the griever's college mailbox on July 20, 1995 (ex. 9' July 31/1995 The grievance is appealed to Step 3 (ex. 5). August 10/1995 The grievance is denied (ex. 6). August 15/1995 The grievance is appealed to Mr. John Rankin, president of the college, seek to arbitration. This appeal is signed by the griever on a union form with a cz to Mr. John Ford, staff representative of OPSEU (ex. 7). August 22/1995 The grievor files a new grievance seeking a hearing of his July 10, 1995 gri Step 3 (ex. 8). October 3/1995 A meeting was held between the union and management (with Mr. Taurozz during which discussions took place concerning Mr. Taurozzi's assertion th never received the Step 2 reply that Mr. Kerman allegedly delivered to h mailbox on July 20. The meeting ended with the following comments. "In light of the fact that the grievor has indicated that he did not rece~ the Step 2 response, the college will convene a Step 3 meeting regardi the competition grievance in accordance with Article 18.6.1.3" (ex. 9). October 10/1995 A notice is sent to various interested parties, including the grievor, that a me take place on October 12 (ex. 10). October 18/1995 The meeting of October 12 was chaired by Ms Sally Layton and is entitle Grievance Response - N. Taurozzi Competition Grievance (GS 95-42)". Mr. was present at that meeting. On October 18 Ms Layton set out her re denying the grievance in a 21/2 page single-spaced typed letter. Without de contents, it is sufficient to note that the union's position was that since Mr. met the minimum qualifications for the sought after position seniority sh~ been the deciding factor in accordance with Article 17.1.1. Mr. Taurozzi 1 seniority than the successful applicant. Management responded to the uni, out its views and the grievance was dismissed (ex. 11). After October 18 the matter became dormant. But Mr. Johnson's grievance, having been similarly denied by the employer, was proceeding to arbitration as is evidenced by a letter dated September 1, 1995 written to Mr. John Rankin and signed by an agent of Mr. Richards for the union. A copy of this letter was forwarded to the attention of the Human Resources Secretariat, Ontario Council of Regents so that a chairperson could be selected and the arbitration move forward. Unfortunately, through some error, Mr. Taurozzi's grievance was not similarly forwarded in the same manner as was Mr. Johnson's and Mr. Taurozzi's grievance only came to light when Mr. Johnson's grievance was assigned and scheduled to go before an arbitration panel that it was learned Mr. Taurozzi's grievance was not likewise proceeding to arbitration. Mr. Richards wrote to counsel for the employer who was acting on the Johnson file on April 13, 1999 suggesting that Mr. Taurozzi's grievance be heard in tandem with the Johnson grievance (ex. 15). The Board understands that Mr. Richards' request was not accepted by the employer. The relevant articles with which we are concerned are as follows: 1.3 Binding on Parties This Agreement is binding on the parties hereto and the employees as defined in Article 1.1 18.2 General Conditions 18.2.1 Time If the griever fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned. 18.2.2 No Reply If an official fails to reply to a grievance within the time limits set out at any Complaint or Grievance Step, the griever may submit his/her grievance to the next Step of the grievance procedure. 18.6 Working Conditions and Terms of Employment 18.6.1 Grievances A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. 18.6.1.2 Step 2 If the griever is not satisfied with the decision of his/her immediate Supervisor he/she shall present his/her grievance in writing within seven (7) days of the day he/she received the decision to the Department Head of the Department in which he/she is employed. The Department Head shall give his/her decision, in writing, to the griever within seven (7) days of the presentation. It is agreed, however, that where an employee's immediate Supervisor and his/her Department Head are one and the same person, the second step shall be dealt with at the next level of supervision. 18.6.1.3 Step 3 Where the griever is not satisfied with the decision at Step 2, he/she shall present his/her grievance in writing within seven (7) days of the date he/she received the decision to the President of the College. The President or his/her designee shall convene a meeting concerning the grievance, within fourteen (14) days of the presentation, at which the griever shall have an opportunity to be present, and shall give the griever his/her decision, in writing, within seven (7) days following the meeting. 18.7 Grievance re Dismissal and Suspension 18.7.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause shall, within fifteen (15) days of the date he/she is advised in writing of his/her dismissal or suspension 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 griever and the Union Steward his/her decision in accordance with the provisions of Sept. 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 Union. 18.7.3 Arbitration If the griever is not satisfied with the decision of the President, the griever 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. EMPLOYER'S POSITION The employer's first position is the Board lacks jurisdiction to hear the merits of the grievance because of the contents of art. 18.8.1 which requires referral to arbitration within 10 days of the date of receipt by the griever of the college's official decision at Step 3. Further, the referral to Step 3 in the grievance procedure on July 31, 1995 (ex. 5) is likewise out of time pursuant to art. 18.6.1.3 which was 11 days after delivery by Mr. Kerman of the Step 2 response on July 20 and not the mandatory seven days. The response by the employer on August 10 to the grievance was simply the Step 3 submission on July 31 which was out of time and the grievance was considered no longer active. The griever's referral to arbitration dated August 15 is not only out of time but is improper because only the union can refer grievances to arbitration as it is the union and the employer who are parties to the agreement as referred to in art. 1.3. The only instance in which a griever can refer a matter to arbitration is with regard to a dismissal or suspension as set out in art. 18.7.3. This not being a dismissal or suspension art. 18.7.3 is not available to the griever to pursue grievances of the nature at hand to arbitration. UNION'S POSITION The union submitted the employer's response on August 10 could be treated as the reply to Step 3 and the griever's referral to the College President for arbitration on August 15 complies with that 10 day time frame. If one follows this theory there has been compliance with the time limits. Insofar as the griever referring the grievance from Step 3 to the president of the college (ex. 7), he could be regarded as having acted as agent for the union which the union embraces and is supportive of his grievance being pursued to arbitration. The referral was on union stationery and the collective agreement does not dictate whose name must appear on the notice to refer a grievance from Step 3 to arbitration. The Board accepts the fact that arbitration decisions are legion in holding the provisions in collective agreements between these parties are mandatory. See Humber College and OPSEU (H.D. Brown, chair), unreported, dated February 18, 1992 at p.6 where the Board states: It has consistently been held by the Arbitrators that the provisions of this agreement for the presentation of grievances are mandatory. It is also held that a Board of Arbitration does not have jurisdiction to extend the time limits either under the collective agreement or under the Act. There is no provision in the College Collective Bargaining Act to allow the Board to vary time limits under the Agreement. Also, in George Brown College & OPSEU (Kaplan, chair), unreported, dated April 1, 1998 at p.3 where the Board writes: Decision Having carefully considered the evidence and submissions of the parties, we are of the view that the employer's preliminary objection must be upheld and the grievance dismissed. The time lines in the collective agreement are mandatory, and there is nothing in the collective agreement or the governing statute which authorizes us to exercise discretion to relieve against missed time lines. The authorities on this point are legion. Accordingly, and for the foregoing reasons, the grievance is dismissed. The Board agrees with the position advanced by the employer that it was not open to the griever to refer a Step 3 grievance to the president of the college pursuant to art. 18.8.1. This is a competition grievance which is regulated by art. 18.8.1 and is unlike a situation where a griever is permitted to refer grievances to arbitration as set out in art. 18.7 which is concerned with dismissals and suspensions. However, we also find that if the griever was authorized to refer the grievance from Step 3 to the president (with which we do not agree), the 10 day period was not complied with and similarly on that ground the grievance fails. But what must be dispesitive of the matter is the fact the griever, in his grievance dated August 22, 1995, requested a Step 3 grievance meeting be held for the July 10 grievance. At a meeting held on October 3 it was decided that because the griever had indicated he had not received the Step 2 response of July 20 (ex. 9) a Step 3 meeting would be convened. This meeting was held on October 12 and a decision reached with detailed reasons being set out by Ms Layten in her document dated October 18, 1995. Whatever else may have been imperfect in the grievance procedure during July and August this imperfection was perfected by holding a Step 3 meeting on October 12. It must be remembered the griever sought this meeting by way of filing a subsequent grievance in which the employer complied. The reasons set out in Ms Layten's memo dated October 18 reveal the entire matter was discussed with reasons being given why the griever failed to be selected for the position which he sought in his grievance. The griever now had the employer's reasons for denying his grievance set out in detail. This, according to the evidence, was the first time the employer explained in such detail its reasons for denying the griever's application. It was at this point in time when it was open for the griever to assess the situation and decide whether or not, in light of the employer's reasons for denying the grievance, he would pursue the grievance further. He had now undoubtedly received the Step 3 response and could have, along with the union, decided to appeal the Step 3 denial to arbitration. He had 10 days pursuant to art. 18.8.1 to give notice in writing that the matter was being pursued to arbitration. However, nothing happened until April 1999 when it was discovered that Mr. Johnson's grievance was proceeding to arbitration without being accompanied by the griever's grievance. This inaction from October 18, 1995 until 1999 is clearly not within the time limits set out in art. 18.8.1 and given the arbitral jurisprudence which has consistently stated time limits in the collective agreement are mandatory this Board therefore lacks the jurisdiction to entertain the grievance on its merits. Having arrived at the above decision it is not necessary for the Board to proceed further to discuss the issue of delay. Accordingly, for all of the foregoing reasons, the grievance is dismissed for lack of jurisdiction to entertain the grievance on its merits. Dated at Kingston, Ontario, this 13th day of October, 1999. C. Gordon Simmons Chairperson "Robert Gallivan" I concur/dissent Robert Gallivan Employer Nominee "Michael Lyons" I concur/dissent Michael Lyons Union Nominee