HomeMy WebLinkAboutMaxwell 03-03-04 IN THE MATTER OF AN A~ITRATION
BETWEEN:
MOHAWK COLLEGE
The College
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Union
AND IN THE MATTER of the grievance of Kathleen Maxwell regarding a layoff.
Board of Arbitration:
I.G. Thorne, Chairman
Jacqueline Campbell, College Nominee
Michael Sullivan, Union Nominee
Counsel for the College:
Brenda Bowlby
Counsel for the Union:
Richard Blair
The award in this matter follows written submissions on behalf of the parties.
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PRELIMINARY AWARD
On July 28th, 2000, this board issued a preliminary award dealing with a Union grievance
which arose out of the decision of the College to reduce the size and scope of the Lab School
which it operated as part of its Early Childhood Education program. That award referred to
several individual grievances which had also arisen out of those circumstances. We understand
that the grievance of Kathleen Maxwell is the only individual grievance which remains
outstanding.
Ms. Maxwell's grievance was dated April 19th, 1999, and was as follows:
I grieve that the college has improperly assigned me pursuant to Article 15.4.3 of the
Support Staff Collective Agreement (SSCA) but not exclusively
Settlement desired: That the college properly assign me as per Article 15.4.3 of the
SSCA, to a vacant or position held by a more junior employee in order of the positions
identified in this grievance:
1) E.C.E. Department - Early Childhood Education Worker - pb 9
2) E.C.E. Department - Early Childhood Education Worker - pb 9
3) I.E. Department - SSOB - pb 9 (position # 1047)
4) C.E. and Business Development Division, Contract Training, Brantford - SSOA - pb
8 (N~W)
5) C.E. and Business Development Division, Contract Training, Brantford - SSOA - pb8
(NEW)
6) C.E. and Business Development Division, Contract Training, Brantford - SSOA - pb8
(NEW)
7) Co-op Department - Clerk General D - pb 8 (position #915)
The facts are not in dispute. The following account of them is drawn from the parties'
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written briefs.
Until early 1999 the College maintained two Early Childhood Education Lab Schools as
part of its Early Childhood Education program. At that time it changed the nature of its
presentation of the program to what was described as a focused High Scope program. As part of
this change the Lab School at the College's Brantford campus was closed and the staff of the
other Lab School at the Fennell campus was reduced so that only three positions remained in it.
The grievor was not one of the employees retained in the three positions. She was given a layoff
notice and, apparently through the operation of the layoff provisions of the collective agreement,
was ultimately assigned to the position of Secretary Atypical Pbd 9. This position is in the same
pay band as her former position of Early Childhood Education Worker. The grievor suffered no
change in remuneration as a consequence of her layoff from the Lab School or of her
reassignment to the position of Secretary Atypical Pbd 9, and thus no monetary loss. We are
advised that the grievor is not seeking in this arbitration to move into any of the positions listed in
her grievance.
The College closed the Lab School on the Fennell campus on August 31 st, 2001. There
are no longer any Early Childhood Education Worker positions at the College.
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In response to the grievance the College has raised two alternative preliminary objections.
First, the College takes the position that the grievor has failed to comply with substantive and
mandatory requirements of the collective agreement so that her grievance is inarbitrable; this
result is said to flow from the grievor's failure to specify the name of an incumbent in any of the
positions she identified in her grievance, and the further failure, in the written referral to
arbitration, to specify up to four positions from amongst those identified in her grievance.
Alternatively, the College submits that the grievance is moot in view of the facts set out above.
The Union responds that the alleged defects in the grievance and referral to arbitration are purely
procedural in nature, that the College has waived its right to object to the defects and that there
remain issues to be arbitrated so that the matter is not moot.
We now set out the parties' positions on both grounds of objection.
Jurisdiction
The basis of the College's contention that the grievance is inarbitrable is Article 18.7.2.1:
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 the PDFs of the positions, named in the grievance, to the
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employee within three (3) days after the filing of 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.
In the College's submission, the requirements to specify in the grievance the name of an
incumbent and to specify up to four positions in the referral to arbitration render the grievance
inarbitrable if those requirements are not complied with. This is so, the College maintains,
because both requirements are substantive and mandatory in nature. The College relies on a
number of awards dealing with similar language in the academic collective agreement between
these parties, which it considers support its approach and represent the overriding weight of
arbitral jurisprudence in the college system. (Re St. Lawrence College and Ontario Public Service
Employees Union (unreported, September 1 lth, 1986, Shime); Re Fanshawe College and Ontario
Public Service Employees Union (unreported, June 17th, 1987, Weatherill); Re Humber College
and Ontario Public Service Emplovees Union (unreported, May 21 st, 1997, Shime); Re Canadore
College and Ontario Public Service Employees Union (unreported, December 12th, 1996,
MacDowell); Re Fanshawe College and Ontario Public Service Emplovees Union (unreported,
August 12th, 1997, Simmons); and Re Seneca College of Applied Arts and Technolo~v and
Ontario Public Service Emplovees Union (unreported, February 6th, 1998, Brown). The same
result should flow, it is argued, under the support collective agreement (under which the present
grievance arises) since the provisions of Article 18.7.2.1 are said to be virtually identical to the
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corresponding language in the academic agreement:
27.08 A An employee claiming improper lay-off, contrary to the provisions of this
Agreement, shall state in the grievance the positions occupied by full-time and
non-full-time employees whom the employee claims entitlement to displace. The time
limit referred to in 32.02 for presenting complaints shall apply fi'om the date written
notice of lay-off is given to the employee.
27.08 B If the grievance is processed through Step 2, the written referral to arbitration
in 32.03 shall specify, from the positions originally designated in 27.08 A, two full-time
positions, or positions occupied by two or more partial-load or part-time employees (the
sum of whose duties will form one full-time position), who shall thereafter be the subject
matter of the grievance and arbitration. The grievor shall be entitled to arbitrate the
grievance thereafter under only one of(i), (ii), (iii), (iv), (v), (vi), (vii), or (viii)of 27.06.
The College contends that the similarity of language between the two collective
agreements between the same parties calls for the inference that they must have intended the
language to have the same meaning and purpose, so that the requirements of Article 18.7.2.1
must be construed as being mandatory and substantive.
The Union responds that any defect in the grievance or referral to arbitration is a
procedural matter which can be cured by a direction that the individuals in question be identified.
The Union points out that the similar language in question appears in different contexts in the
academic and support agreements: in the academic agreement the rights and obligations of the
parties in respect of job security are alt set out in a single article, Article 27, which includes
Article 27.08; in the support agreement the language in issue is found in Article 18 which deals
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generally with the grievance procedure, a form of organization which the Union argues shows an
intention by the parties to signal the procedural nature of these provisions. Moreover the board in
Re George Brown and Ontario Public Service Employees Union (unreported, December 29th,
1995, Burkett), considered the provisions of Article 27.08 of the academic agreement and found
them to be procedural in nature. The College considers that the approach in the George Brown
case has been rejected in all other College cases and suggests that the language in question does
more than narrow the questions for arbitration as a matter of process, and actually defines what
"the subject matter" of the arbitration is to be; thus it is argued that the parties used language
which leaves nothing to be considered by a board of arbitration should the reference to arbitration
fail to designate up to four positions as stipulated by the article.
The Union then argues that the College has waived its right to rely on the strict
requirements of Article 18.7.2.1: there was no objection to any apparent deficiency in the
grievance at the Stage III grievance meeting or in the reply, and there was discussion of the
positions; there was likewise no objection to the grievance or the referral to arbitration until well
after the board of arbitration had been constituted, had heard and rendered a decision on the
Union grievance and was commencing the hearing of the individual grievances. In this respect the
Union relies on Re George Brown (supra) and on Re Centennial College of Applied Arts and
Technology and Ontario Public Service Employees Union (unreported, October 17th, 1997,
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Schiff). To this submission the College responds that it is not involved in the constitution of the
arbitration board, since the appointment of the College's nominee is made not by the College but
by the Ontario Council of Regents, and that of the Chair by the Council of Regents with the
Union's Joint Scheduling Committee. The College asserts that its objection to our jurisdiction
was raised before the arbitration of this grievance. In these circumstances, it submits, so long as
the College raises its preliminary objection before the arbitration, the objection is validly raised.
In any event, mere silence between the time of the referral to arbitration and the hearing did not
constitute a waiver.
Mootness
The College's alternative objection is that the grievance is moot since there are no longer
any Early Childhood Education Worker positions at the College. The grievor does not wish to
move to any of the other positions listed in her grievance and has suffered no loss of remuneration
following her layoff, and no other relief was claimed in the grievance. Counsel observes that the
grievance is under Article 15.4.3 and is thus a bumping grievance. Since two of the positions
which the grievor sought to be assigned to no longer exist, and since she does not wish to bump
into any of the remaining positions and has suffered no financial consequences, the College
argues, there is no further issue to be litigated; nor is there an outstanding issue which affects the
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rights of the parties, and the resolution of the grievance can have no effect on any ongoing
employment relationship.
The College relies on the principles set out in Borowski v. Attorney-General of Canada
(1989), 57 D.L.R. (4th) 231 (S.C.C.) and applied in Re Fanshawe College and Ontario Public
Service Employees Union (unreported, May 9th, 1996, Keller); Re George Brown College and
Ontario Public Service Eml~lovees Union (unreported, January 18th, 1999, Devlin); Re Welland
Countv Roman Catholic Separate School Board and Ontario English Catholic Teachers
Association (1992), 30 L.A.C.(4th) 353 (Brunner); Re Fanshawe College and Ontario Public
Service Employees Union (unreported, October 24th, 1989, Swan); and Re American Can of
Canada Ltd. and Sheet Metal Workers International Assoc.~ Local 487 (1975), 10 L.A.C (2d) 73
(O'Shea).
The Union maintains that the right to declaratory relief where there is an allegation of a
breach of a collective agreement persists even when the specific remedy sought in the grievance is
no longer available: Re Government of Nova Scotia and Nova Scotia Government Emr)lovees
Association (1983), 11 L.A.C(3d) 181 (Christie); and Re Durham Region Roman Catholic
Separate School Board and Canadian Union of Public Employees, Local 218 (1991), 19
L.A.C(4th) 72 (Brandt). Further, counsel argues that it is well established that in the absence of
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a settlement of the issues between the parties, an otherwise valid grievance should proceed to
arbitration so long as the difference between them remains to be adjudicated: Re Durham Region
(supra); Re Treasury Board (Transvort Canada) and MacGregor (1992), 30 L.A.C.(4th) 330
(Chodos); and Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500
(1975), 9 L.A.C. (2d) 83 (Simmons). In addition, declaratory relief can be claimed in an
individual grievance: Re United Steelworkers and International Nickel Co. of Canada Ltd. (1972),
24 L.A.C. 51 (Weiler); and Re Government of Nova Scotia (supra). Section 46 of the Colleges
Collective Bargaining Act which provides for final and binding arbitration of all differences,
counsel argues, supports the view that grievances which have not been settled should be resolved
through arbitration. Should this board consider an amendment to the grievance necessary to
request declaratory relief, the Union now requests such an amendment. What the Union seeks is a
declaration that the collective agreement was violated in respect of its application to the individual
facts arising out of the layoff or reassignment of the grievor; this should not be seen as an attempt
to convert an individual grievance into a Union or policy grievance. As matters stand, in the
Union's submission, the College's decision involving the application of standards and the language
of Article 15 to the grievor's qualifications and abilities was in breach of the agreement - a
decision which had a material impact on the grievor in her field. She should therefore be entitled
to adjudication of the grievance.
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In reply the College argues that the cases cited by the Union are distinguishable on their
facts, notably in situations in which there remained an ongoing issue of interpretation of a
collective agreement which could have application in the future. With respect to s. 46 of the Act,
the College submits that this board has a discretion to decide not to deal with a grievance where
the difference has been rendered moot. The College also takes the position that it is not accurate
to categorize this dispute as arising out of a denial to the grievor of employment in the field in
which she worked. This is instead said to be a dispute over whether the grievor, having been laid
off, can bump into positions which no longer exist.
Conclusion
This decision deals only with the College's objection to our jurisdiction based on the
operation of Article 18.7.2.1. The parties have referred us to a number of awards which have
interpreted Article 27.08 and its predecessors in the academic collective agreement, language
which the College argues is virtually identical in wording to Article 18.7.2.1. in the support
agreement under which the grievance has arisen. The support agreement, it is argued, should
therefore be interpreted in the same way. Leaving aside for a moment the question of whether the
language in the support agreement is in fact identical in its effect, we shall first touch on the effect
which the article in the academic agreement has been found to have.
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One of the determinations which boards of arbitration have made about that article is that
it is mandatory in nature. That conclusion was reached in Re Canadore College (MacDowell,
supra). The failure of the grievor in that case to state in his grievance the positions occupied by
employees whom he claimed entitlement to displace (as the collective agreement at that time
required) rendered the grievance" ... fundamentally defective and there ... not arbitrable" (p. 10).
None of the decisions mentioned to us has reached any conclusion that the language in the
academic agreement in its various forms over renewals of the agreement is other than mandatory.
Other awards have focused on the question of whether the article is a substantive or a
procedural provision. The decision in Re.Fanshawe College (Weatherill, supra) found that the
requirement to state in the grievance the names of employees against whom a right of
displacement was claimed (as was the case in the agreement at that time) was" ... obviously a
substantial, not merely a formal one"(p. 4). That conclusion has been reached by other boards,
e.g. in Re Seneca College (H.D. Brown, supra) which found that the provision was "substantial
and mandatory' and the failure to meet those terms as a matter of substance is fatal to a
grievance"(p. 21). In Seneca that view of the provision was expressly contrary to that in Re
Geome Brown College (Burkett, supra) in which the provision had been found to be procedural
in character.
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These distinctions are important for the outcome of the case before us. If the provision is
a mandatory one - about which there seems no doubt - we have no power to relieve against a
failure to comply with it (and the Union is not arguing that we do have such a power). If the
provision is a procedural one, even though mandatory, it can be waived by the words or conduct
of the College. Thus, if the article simply sets up a procedure for processing a grievance which
claims improper application of the bumping procedure, waiver is a possibility and if it is
established the grievance may proceed. If the provision is a substantive one, however, it is
generally understood that its requirements may not be waived. If the provision establishes or
protects rights of employees under the agreement, therefore, it may not be waived. In this case,
of course, the Union maintains that the provision before us is a procedural one which was waived
by the College.
We now turn to the wording of Article 18.7.2.1. The article stipulates what an employee
claiming improper application of Article t 5.4.3 must state in his grievance. Article 15.4.3 lays out
a bumping procedure: an employee identified for layoff must be assigned to the first position
determined in accordance with the sequence specified in the article. A sequence is then spelled
out in which types of positions are described with reference to classification, the ability of the
employee to perform the duties of a position, pay band level and seniority. Against this
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background the requirement in Article 18.7.2.1 for a grievor to state in the grievance the positions
and name of incumbent, if any, to which the employee claims entitlement can be seen as
procedural: identifying positions and incumbents provides a means of carrying out the
requirements of Article 15~4.3 by pinpointing the positions at issue and their place in the
sequence. But there is more to it than that. It may be that setting out positions and names in the
grievance may have only procedural implications if the grievance goes no further than that: the
identification of the positions and names by the grievor may assist in narrowing the issues so that
the matter may be resolved. However if the matter goes on to a referral to arbitration the
requirement to specify no more than four positions has a significant impact: once that is done the
positions specified" ... shall thereafter be the subject matter of the grievance and the arbitration".
The effect appears to be to establish the jurisdiction of the board of arbitration since only the
positions named are to be the subject matter of the arbitration. It seems to us that this view of
Article 18.7.2.1 arises readily enough from the wording of the article that its position in the
grievance procedure in the collective agreement, rather than in some other part of the agreement,
should not detract from its meaning.
So far as this issue is concerned, there are no differences of real substance between the
article in the support agreement and the corresponding article in the academic agreement. It is
appropriate to take account of the awards which have interpreted Article 27.08 and its
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predecessors in the academic agreement.
Boards of arbitration which have considered directly the effect of Article 27.08 in the
academic agreement have fairly consistently come to the view that a failure to identify names or
positions is fatal to a grievance. Arbitrator MacDowell in Canadore College noted that in the face
of such interpretations the language in the agreement had been maintained without material
change over several rounds of bargaining. Arbitrator Simmons in Fanshawe College considered
that the view in Canadore was dispositive of the issue. Arbitrator Brown in Seneca found that the
Canadore award and earlier decisions settled the issue, and also found that the article contained
substantive requirements and that a failure to comply was fatal to the grievance. That board was
of the view that" ... the doctrine of waiver as described and applied in the George Brown award,
does not apply to waive substantial and mandatory requirements of the collective agreement".(p.
The parties have the benefit of a body of interpretation which supports the view that the
language in issue is substantive and goes to the heart of the jurisdiction of a board of arbitration.
Our own reading of Article 18.7.2.1 is that it readily supports that interpretation. The
requirement to name positions being substantive, non-compliance with it cannot be waived.
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For these reasons we conclude that the failure to identify any positions in the referral to
arbitration left this board without a jurisdictional foundation by establishing the subject matter of
the arbitration. It is unnecessary to consider whether, if we had jurisdiction, the matter is moot in
any event.
Dated at Kingston, Ontario, this.,ggt'h day ofNoff, ea~e_r 200'2'7'~
~rne, Chairman
I concur,~disscnt ,-) Bc~o ~c.,,~ e ~c~
Jacqu'eline Campb"~tl, College N-o-mTnee
I c. ona~dissent "~ ,c~..q~- ~,~x-~'c~~'
Michael Sullivan, Union Nominee