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HomeMy WebLinkAboutSimpson 04-03-30 1 IN THE MATTER OF AN ARBITRATION BETWEEN: LOYALIST COLLEGE OF APPLIED ARTS AND TECHNOLOGY The College - and - ONTARIO PUBLIC SERVICES EMPLOYEES UNION (LOCAL 421) The Union AND IN TIlE MATTER of'the grievance of Bill Simpson regarding a payment under an early retirement plan. Board of Arbitration: I.G. Thorne, Chairman Ann E. Burke, College Nominee Sherril Murray, Union Nominee Appearances for the College: Tierney Read Grieve, Counsel Appearances for the Union: Eric O'Brien, Counsel A hearing in this matter commenced on June 18~h, 2003, at Belleville, Ontario. 2 PRELIMINARY AWARD The grievor, Bill Simpson, took early retirement from the College on December 31 2002. His grievance asserts that he was not paid the early retirement incentive payment to which he was entitled under the College's early retirement plan. The College took the position that the grievance was not arbitrable. The parties agreed that this preliminary matter should be decided by the board before any consideration of the merits of the grievance, and they made their submissions in this connection at the beginning of the hearing. In order that the parties' positions on the preliminary mater might be understood, however, it was necessary to refer to the substance of the grievance. To this end we were provided with a number of documents, and counsel set out the positions the parties had taken. We should make it clear that, beyond the documents which are before us, no evidence has yet been heard. We are therefore making no finding at this time about the merits of the grievance. In a staff bulletin dated November 27th, 2001, the President of the College advised employees that incentives would be offered to those who might wish to retire early. The text of an Early Retirement Incentive Plan was attached to the bulletin. The portions of that document most relevant to an understanding of the parties' positions are the following: 2. Each employee's confidential retirement agreement will be developed collaboratively between the employee, the supervisor, the senior administrator and the Vice-President of Staff and Student Services. The College recognizes that employees may choose to share their personal arrangements with a representative from OPSEU/LCASA. 3. The acceptance/approval of each agreement will be at the sole discretion of the College with consideration given to factors such as the amount of funds available and the scheduling needs of the College. 5. The plan is open to full time employees aged 50 - 64. 7. The financial incentive under normal circumstances will be based on the following factors: (a) If the employee is not fully replaced, the incentive is $10,000.00 plus 1% of current salary for each full year of active full time employment at Loyalist College, plus 1% for each year following retirement to age 65. (B) If the employee is fully replaced, the incentive is 50% of the calculation in (a) above or $10,000, whichever is greater. The College had developed a policy and a procedure, both dated March 21~t, 2002 (which replaced earlier documents dated September 1st, 1992). Among other matters the College's policy stated: Pre-retirement leave and early retirement incentives are not the earned right of any employee. Each request will be judged individually on its own merit and this program may be terminated/withdrawn at any time by the Board of Governors and without prejudice to the College. In August or September 2002 the grievor requested early retirement. He and the Union assert that his supervisor, and later the Human Resources Department, advised him that his position was going to be replaced. On September 30~, 2002, he and the representative College signed a document in the following terms: 4 AGREEMENT BETWEEN: Loyalist College of Applied Arts and Technology AND: William (Bill) Simpson IT IS AGREED THAT: 1. Bill will early retire from the College December 3 1st, 2002 ... that being his last day "on the payroll". 2. Bill's last day of work will be Friday, October 11th, 2002 and he will then go on vacation until December 31 st, 2002. 3. Any unused vacation and accumulated overtime will be paid to Bill in January, 2003. 4. The College will pay to Bill Twelve Thousand ($12,000.00) Dollars as an early retirement incentive. Part or all of this money can be tax sheltered in an RRSP. 5. Mr. Simpson will be allowed to carry, at his own expense, any of his eligible benefits as a retired employee of Loyalist College. The Union was not involved in the discussions about the grievor's early retirement. The Union asserts that the grievor went on vacation from October 11th to December 31st, 2002. On November 13th, 2002, Rosalie Spargo, Director of Human Resources, sent a memo to Gord Wright, President of the Union Local: The College has decided to expand an existing contract services agreement to include the daytime outside grounds work. This means that the position previously occupied by Bill Simpson will be deleted from the College complement. Although it is the College's position that notice under Article 15.8 of the College Agreement is not required in this situation, we are advising you of our decision on a without prejudice basis. 5 Counsel for the Union advised us that it would be the grievor's evidence that he first learned on November 28th, 2002, that there had been some discussion about the replacement of his position. The grievor filed the following grievance: Statement of Grievance I have not been paid as per the Early Retirement Plan dated November 27, 2001. The payout under the Early Retirement Plan that was agreed to, was if my position was replaced, as per my conversation with Dave Butler on November 28, 2002, my position is not being replaced but the College has refused to pay the additional funds. The College is in violation of articles 2.1, 3.1, the Early Retirement Policy and any other article that may apply. Settlement Desired The College pay me in accordance with the Early Retirement Policy dated November 27th, 2001 and any accrued interest from date first due. The grievance was dated December 12th, 2002, and counsel stated that that was the date on which it was filed. The grievance also bears the following notation: Grievance submitted to: Date: December 20, 2002 Kirk Fleming - Director Facilities Service Tel: 613-969-1913 #444 Simply stated, as we understand the matter, the grievance is that the payment made to the grievor was only one-half of the amount that should have been paid. In these circumstances it was the Union's view that the application of the plan was in violation of the collective agreement since the Union had been bypassed as bargaining agent for employees. Such direct dealings with individual employees undermined the exclusive entitlement of the Union to negotiate with the College on behalf of employees and could have consequences for other parts of 6 the collective agreement. There were two aspects to the remedy which the Union would seek: a declaration that agreements of this sort, which brought about a termination of an employee's employment, required the participation and approval of the Union; however the Union did not seek to disturb any individual arrangements made with employees under the policy up to this point. So far as the grievor was concerned the Union wished the College to be required to apply the policy in accordance with its terms. The Union sought production of some documents in addition to those produced at the hearing. The parties' approaches to this issue are best described after the elements of the College's preliminary objection have been laid out. Submissions of the Parties The College's first position was that the grievance was inarbitrable. The College considered that this conclusion could be reached on either of two bases. The first of these was that an early retirement policy was not a negotiable matter under Section 3 of the Colleges Collective Bargaining Act: 3. Negotiations shall be carried out in respect of any term or condition of employment put forward by either party, except'for superannuation. An early retirement policy, in the College's view, was an aspect of"superannuation". Since it was not a matter for negotiation, therefore, it could not form part of a collective agreement or be the subject of a grievance. 7 The other possibility was that, even if an early retirement policy could be the subject of negotiations, it had not been in this collective agreement and on that basis alone could not be the subject of a grievance or arbitration. Counsel referred to Re Algonquin College and Ontario Public Service Employees Union (unreported, November 16, 1981, Weatherill) as an example of the first approach. In that case a grievor had sought not to be required to retire at age 65 in accordance with a policy of Algonquin College. Relying on the predecessor of Section 3 of the Act, the majority of the board determined that" ... retirement from employment at 65 in accordance with a College policy to that effect is an aspect of'superannuation' within the meaning of ... the Act"(pp 5-6). Thus the policy could not be the subject of negotiations and Could not be dealt with in the collective agreement. The majority went on to remark that if its view that the policy was a matter of"superannuation" should be wrong, it remained the fact that the collective agreement did not in fact deal with the matter; it was therefore open to the College to establish a reasonable retirement policy unilaterally. The compulsory retirement of the grievor was found not to be in violation of the collective agreement. Counsel observed that this view of the scope of"superannuation" in Section 3 of the Act was not universally held: Re St. Lawrence College and Ontario Public Service Employees Union (H. Blair) (unreported, April 25th, 1986, Teplitsky). The St. Lawrence case also involved a grievor who did not wish to retire at 65 as required by his College's mandatory retirement policy. The majority of the board found that" ... the ordinary meaning of superannuation is pensions"(p. 8 3). It reached this conclusion in the light of a transcript of the debates about the Act in the Legislature, and certain dictionary definitions. Mandatory retirement was found not to be ... a necessary or usual feature of pension plans and it plays no part in the pension plans which affect the employees in this bargaining unit. Ordinarily, the subject of retirement would be a bargainable issue. (at p. 4) Rather than being inarbitrable, the policy was found to be in breach of the grievor's right to equal benefit of the law under Section 15 of the Canadian Charter of Rights and Freedoms. (The award was quashed on other grounds (Divisional Court, April 13th, 1988), the Court assuming, without deciding, that the majority of the board had correctly interpreted "superannuation"). Counsel pointed out that in the present case a version of an early retirement plan had been in existence in 1988 and she argued that if the Union had believed the plan was a bargainable matter it could have bargained to have it dealt with in the collective agreement. Yet it had never been a part of the collective agreement and had never previously been grieved. (The question of whether a compulsory retirement policy was a matter of"superannuation" within the meaning of the Act was also touched on in Re Cambrian College (below) but not decided.) Turning to the grievance, counsel argued that the grievor's request for a further payment did not relate to any provision for pay in the collective agreement but instead was questioning the ¢ way in which the College had administered its early retirement plan, a matter about which the collective agreement was silent. The matter therefore fell within management's rights under Article 3.1. Understanding that the Union intended to argue that the College was obliged to apply its early retirement policy in good faith (and had not done so), counsel asserted that the law was 9 clear that a board of arbitration could not read into a collective agreement an implicit duty to be fair, reasonable or non-discriminatory in respect of matters not dealt with in the agreement. In this respect the College relied on Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto Police Association et al (1981), 124 D.L.R. (3d) 684 (Court of Appeal), and also on Re Sisters of St. Joseph of the Diocese of London in Ontario, Operating St. Joseph's Hospital, Chatham and Service Employees Union, Local 210 et al (1997), 35 O.R. (3d) 91 (Court of Appeal); Re Gananoque Light & Power Ltd. and International Brotherhood of Electrical Workers, Local 636 (1996), 54 L.A.C. (4th) 203 (Thorne); and Re Cambrian College and Ontario Public Service Employees Union (unreported, July 13~h, 1981, Brunner). The College also relied on Re Canadian Broadcasting Corp. and National Association of Broadcast Employees & Technicians (1992), 28 L.A.C. (4th) 75 (M.G. Picher), a decision reached without express reference to Re Metropolitan Toronto Board of Commissioners and Police. In the CBC case an employee who had been denied access to an early retirement incentive plan grieved that he had been dealt with in an arbitrary and discriminatory manner. Arbitrator Picher found that the retirement incentive program fell entirely outside the ambit of the collective agreement and that the grievance was not arbitrable. Somewhat similar was Re Corporation of the City of Etobicoke and Canadian Union of Public Employees, Local 185 (1996) 54 L.A.C. (4th) 229 (Springate), a case which also involved employees who had been denied access to an early retirement incentive. It was the contention of the Union in that case that the grievances" ... were arbitrable with respect to an implied obligation on the employer to administer the collective agreement in a reasonable manner." (at p. 233) There being no reference in the collective 10 agreement to early retirement or early retirement incentives, the board found that the matter was not arbitrable. The College put forward the alternative argument that the agreement between the grievor and the College, under which he retired early with an incentive payment, was a valid and binding contract outside the scope of the collective agreement and outside this board's jurisdiction. Mentioning that it was the position of the Union that individual bargaining between the College and an employee undermined the role of the Union as exclusive bargaining agent, counsel acknowledged that it was generally the case that individual bargaining between an employer and employee over terms and conditions of employment was preempted by a collective bargaining relationship. However there was authority for the proposition that the principle did not apply when the terms of the individual bargaining fell outside the scope of the collective agreement and specifically an agreement concerning early retirement. Counsel referred to Loyalist College of Applied Arts and Technolo~ v. Ontario Public Service Employees Union (Court of Appeal, March 6th, 2003) solely for the reference made in paragraph 38: I think the jurisprudence on this question is fairly summarized by brown and Beatty's Canadian Labour Arbitration, 3d ed. (Toronto: Canada Law Book, 2002) at para. 2:1210. It has long been established that individual employment relationships have meaning only at the hiring stage and that the individual employee's bargaining rights over terms and conditions of employment are pre-empted by a collective bargaining relationship ... The only scope for individual bargaining with regard to terms and conditions of employment would appear to be where it is sanctioned by the collective agreement, by the collective bargaining agent, where it is ancillary to routine administration of the collective agreement, where the terms fall outside the scope of the agreement, such as an agreement concerning an early retirement 11 arrangement or reimbursement for relocation expenses, or in some cases where there is a voluntary waiver of a collective agreement benefit that does not undermine the collective agreement. The College also put forward the further alternative argument that the grievance was in any case untimely. Article 18.6.1 of the collective agreement stipulated: A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen (15) days a~er the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. Noting that a number of decisions have determined that time limits in respect of grievances are mandatory under this collective agreement and that boards of arbitration do not have jurisdiction to extend them, counsel argued that the 15-day limit had been exceeded. The source of the grievor's alleged rights, she suggested, must be the agreement which he signed with the College on September BOth, 2002, in which all rights which the grievor might assert were set out. An alternative possibility was that the College's memo to the President of the Local Union on November 13th, 2002, was what should start the running of the 15 days. In either case the grievance was too late. Counsel for the Union pointed but that there appeared to have been discussions about the propriety or fairness of the College's actions: the College's Step 2 response to the grievance assured the grievor that he had been "treated fairly and in the same way, using the same rational as any other employee", and the Step 3 response stated that" ... the policy was properly applied 12 in relation to your early retirement gratuity ...". Without the Union's involvement, however, he argued, there was no way of determining whether that was so. He also noted the reference to a Union representative in paragraph 2 of the early retirement incentive plan. Dealing with the College's view of the meaning of "superannuation', counsel urged the view that the term dealt with pensions. The Union did not suggest that pensions were subject to the arbitration process but counsel noted that there was no reference to pensions at all in the early retirement policy or the collective agreement. As to the absence of any reference to the early retirement policy in the collective agreement, counsel made the distinction that the Union did not grieve the existence of the policy or the College's right to have one, but rather the application of the policy. Touching on the cases which had restricted the jurisdiction of a board of arbitration to review the exercise of management rights, counsel argued that all of the cases dealt with what he termed a higher standard of review than was argued for here: what had been under consideration in those cases was whether arbitrators could review the reasonableness of actions under the management rights clause~_~her, e. as this case involved bad faith on the part of the College and the bypassing of the Union as bargaining agent. It was these factors which were the reason for the Union's request for disclosure. The Union was not suggesting that a standard of fairness applied. What grounded the .jurisdiction of this board, counsel suggested, was the issue of bad faith. The Union was content to proceed on the basis of its allegation of bad faith. Counsel indicated that the Union would wish an opportunity to provide us with case law in support of that contention. 13 Providing us with an extract from Brown and Beatty, Canadian Labour Arbitration at 4:2320, counsel suggested that the scope of review was changing. Since Weber v. Ontario Hydro [1995] 2 S.C.R. 929, he argued, there had been judicial approval of a trend towards inclusion of matters within the scope of collective bargaining and arbitrable review, and he suggested that this was occurring both to avoid situations in which there might be no forum in which a matter could be determined and also to avoid a multiplicity of forums. In sum the position of the Union was that this board had jurisdiction to review the application of the policy against the standard of bad faith, but that we should reserve our decision on that question until the merits of the case were before US. Dealing with the authorities put forward by the College, counsel argued that all of them dealt with issues distinct from the issue in the present case. The CBC case and others had dealt with the issue of access to an early retirement plan, while the Union in this case was not seeking to overturn the sole discretion of the College to determine access to its plan. Rather, the Union sought to review on its merits the College's application of its policy. Another distinguishing element of the cases cited, he argued, was that in none of them could the arbitrators find a relevant provision of the collective agreement that applied. This case was different: Article 1.1 recognized the Union as the exclusive bargaining agent for all employees and Article 15.8 obliged the College to notify the Union if it decided to contract out work which would cause the layoff or involuntary displacement of employees covered by the agreement. A Letter of Understanding attached to the agreement (November 16t~, 2000) permitted an employee given notice of layoff or reassignment as a result of the contracting out of his job, to elect to take an unpaid leave of 14 absence in order to accept a job offered by the contractor. The Union saw these provisions as operating to impose a cost or obstacle in the path of contracting out. The Union's contention was that in this case the College had gone directly to an individual employee and negotiated his departure, following which his job was contracted out. Counsel also characterized the payment made to the grievor as a lump sum bonus in return for waiving his rights under the collective agreement. None of the cases cited by the College, he argued, dealt with such issues and none addressed an allegation of bad faith. In opposition to the College's contention that the grievor and the College had a legal binding contract, the Union characterized the issue as one of direct bargaining which could not be countenanced. In the present state of the law there was simply no scope for such a direct bargain. Counsel urged us to consider the consequence of an award which might recognize the College's objection to our jurisdiction: the corollary of the College's position must be that the grievor would be entitled to advance his claim in civil court. The Union urged us to make a clear statement to that effect if we should find that this board lacked jurisdiction. Counsel referred to Re United Nurses of Alberta and Salvation Army Grace Hospital [1995] Alta. L.R.B.R. 63, in which an employer decided to close its operation and offer a voluntary severance package to all employees. Negotiations had previously taken place with the Union with respect to severance but no agreement had been reached. The severance package in dispute had not been negotiated with the Union. The Alberta Labour Relations Board viewed a voluntary severance payment as involving an employee's giving up a set of rights under a collective agreement. The Board found it" ... impossible to view a voluntary severance package ... as anything other than a term and 15 condition of employment". There was no scope for an employer to implement such a scheme without bargaining for it with the employees' exclusive bargaining agent. The Board also found that the fact that the collective agreement was silent with respect to severance pay did not entitle the employer to implement its scheme unilaterally: the employer was" ... not free to implement new terms and conditions of employment unilaterally any more than it is free to change terms and conditions of employment spelled out in the collective agreement unilaterally." Counsel also referred to Re City of Saint John and Saint John Fire Fighters' Association, Local 771 [2003] N.B.L.E.B.D. No. 6, in which the reasoning of the Alberta Board had been approved. Counsel also argued that it was far from clear that the fact that a collective agreement did not cover an early retirement incentive necessarily precluded a board of arbitration from having jurisdiction. In Re City of Toronto and Canadian Union of Public Employees, Local 79(Kuchma) (October 30th, 2002), 111 L.A.C. (4~) 127 (Starkman), it was grieved that the Employer had unreasonably withheld a severance payment under an early retirement program. The collective agreement was silent on the question of early retirement programs. Arbitrator Starkman found that: There is nothing in the collective agreement which required the Employer to offer an early retirement program. Equally, there is nothing in the collective agreement which constrains such an offering. Once the program has been made available, and once employees have taken certain actions, and madg certain decisions in reliance on the terms and conditions of the program, an estoppel can be created which makes the interpretation of the terms of the program enforceable under the grievance and arbitration provisions 0fthe collective agreement. In this matter, the actions of the grievor indicate an intention to accept the early retirement incentive and to resign her employment, and because the grievor altered her behaviour in reliance on the early retirement incentive program, an estoppel was created giving this 16 board of arbitration the jurisdiction to adjudicate this grievance which claimed that the City has violated the collective agreement by inducing her to accept an early retirement package and then refusing to pay her the same. Re Canada Post Corporation and Canadian Union of Postal Workers (1999), 82 L.A.C. (4th) 69 (Swan), also involved an early termination by agreement between an employer and individual employee who was offered a financial incentive to take this step. The Union in that case took the position that the grievor was entitled to reinstatement, arguing that the waiver which the grievor had signed could not be held against him on the basis (inter alia) that it was of no force and effect because the Union, the sole bargaining agent, was not a party to the document. After considering the Salvation Army Grace Hospital case (supra), and Re Canada Post Corporation and Canadian Union Of Postal Workers (Larabie) (1988), 1 L.A.C. (4'h) 138 (Weatherill), Arbitrator Swan concluded (at p. 78): In my view, it is obvious that the Corporation was in breach of the Union's exclusive rights to bargain and enter into a collective agreement on behalf of all employees in the bargaining unit in offering, unilaterally, incentives to induce employees to resign or retire. However he went on: The real problem is the remedy to be provided to the Union for this breach, and whether the present grievance provides an appropriate vehicle to deliver such relief. The Salvation Army Grace Hospital case is a'decision of the Alberta Labour Relations Board, and virtually all of the decisions relied upon by the Union in argument in that case are also labour relations board decisions, based on an allegation of a violation of the Union's exclusive bargaining authority, an unfair labour practice under the applicable legislation. In the Salvation Army Grace Hospital case, the board's remedy is limited to a declaration, and there is nothing to suggest that any severance arrangements actually entered into and executed between the employer and any individual nurses there were rendered null and void by the decision ... 17 As Arbitrator Swan saw the situation, the grievor in that case had resigned ... which he was entitled to do by himself without the Union's intervention, in order to achieve certain personal objectives, and also in order to receive an incentive from the Corporation. That incentive was one which the collective agreement did not provide for, but not because it was less than the collective agreement would provide, but because it was considerably more. In short, because of the Corporation's breach of the collective agreement, Mr. Marzolf obtained a benefit which would not otherwise be available to him, in return for which he resigned. While the Union has suffered from the Corporation's breach, it is not at all clear that Mr. Marzolf has suffered. Indeed, he has received an apparent benefit from the Corporation's breach. (at p. 80) In the result, the grievor's resignation was found to be effective and no further remedies were available to him. Dealing with the College's alternative argument that there was a binding agreement between the College and the grievor, the Union asserted that there could be no such agreement.. So far as the College's argument that the grievance was untimely was concerned, the Union's view was that the memo to the President of the Union Local on November 13~, 2002, could not start the running of the 15 days within which a grievance must be filed: Article 18.6.1 spoke of a matter coming to the attention of an employee. The grievor had not become aware of the fact that his position was not going' to be replaced until November 28th, and the grievance followed 14 days after that. Alternatively, the grievance could be seen as a continuing one somewhat as had been recognized in Re George Brown College and Ontario Public Service Employees Union (unreported, November 5t~, 1999, Thorne). On this view the breach by the 18 College in this case was its failure to replace the grievor as he had been told would occur. Such a breach continued until such time as his position was filled. In fact such a breach would not have arisen until December 31st, since the grievor's vacation from the position did not end until that time. Counsel for the College replied to the Union's submissions. She stated that the Union's position that the College had acted in breach of the Union's rights as exclusive bargaining agent had been raised for the first time at this hearing. This had not been mentioned in the grievance. Article 1.1 had been brought up for the first time at the hearing. However she dealt with the matter, maintaining that the issue before us continued to be one of our jurisdiction, and arguing that the Union's view of the impact of Article 1.1 could not be correct: it would involve an understanding that everything within the scope of management's rights (except the act of hiring) would be within the ambit of the collective agreement; it would also involve reading out of the agreement the limitations on the authority of this board in Article 18.7.5. The Union's request for certain disclosure can now be summarized. There were two aspects to this. First the Union sought copies of any agreements that might exist with the contractor who was now performing the grievor's former duties. The Union saw such a document as being relevant to the College's preliminary objection to the timeliness of the grievance. For example the Union reasoned that, if an agreement with a contractor had been entered into during the month of December, this would amount to a breach-of the early retirement agreement with the grievor which was premised on his being replaced and that breach might be 19 said to be the moment at which the 15-day period would start running. Second, the Union requested a copy of any document prepared by the College in connection with its decision to eliminate the grievor's position, and also confirmation of when that decision had been reached if that was not evident from the documents themselves. The Union considered that if the documents showed that the decision not to replace the grievor had been reached before the early retirement agreement had been negotiated, this might be evidence of bad faith. In its view the timing was relevant to its argument that this was an arbitrable matter. This evidence was said to be relevant and necessary for the determination of the preliminary objection. The Union considered also that any such documents might reinforce its position on the objection to the timeliness of the grievance. Counsel for the College responded that the timing of the decision to "expand an existing contract services agreement" was evident from the memo of November 13~h, 2002, sent to the president of the local Union. So far as the second type of document was concerned, counsel said, there was no such document since the grievor's position had not been eliminated. We shall deal first with the issue of the timeliness of the grievance. It appears to us that, if the grievance is otherwise arbitrable, it, cannot be barred on the basis that it was filed out of time. We were advised at the hearing that the grievor first learned on November 28th, 2002, that there was some question as to whether his position would be replaced. He grieved 14 days after that date. In that respect Vce note that the parties appear to have proceeded on the basis that the grievance was filed on its date, December 12t~. The College seeks to have us to draw the 20 conclusion that the memo of November 13th to Mr. Wright should have had the effect of starting the running of the 15-day period within which a grievance must be filed. There is no suggestion, however, that Mr. Wright informed the grievor .of the contents of the memo or that he would necessarily have understood that the memo had a particular significance for the grievor; it must be remembered that the Union had not been involved in the arrangements for the grievor's early retirement. Article 18.6.1 speaks of the grievor's own knowledge of the circumstances giving rise to the grievance. The facts stated to us do not lead us to the conclusion that the circumstances" ... have come or ought reasonably to have come to the attention of the employee"sooner than November 28th, 2002. We turn now to the College's submission that the grievance is inarbitrable. The first basis on which this was said to be so was the fact that s. 3 of the Colleges Collective Bargaining Act precludes negotiation of"superannuation" in a collective agreement. We have recorded the differing views expressed by the boards in Re Algonquin College and Re Stl Lawrence College (supra). Unfortunately we do not have more than the bare opinions expressed in those cases and we do not know the nature of the content of the legislative debates and dictionary definitions which were persuasive in Re St. Lawrence College. The issue was not further explored in evidence or argument before us and no alternative approach to the interpretation of s. 3 was proposed. Nonetheless we are obliged to interpret a statutory provision which may have so fundamental an effect on the outcome of this arbitration. In our view, retirement and pensions are both aspects of superannuation. In some usages, "superannuation" means the act of retiring an employee, while in others it is a general descriptive term for a pension. The point at which an 21 individual retires will generally be the basis of entitlement to a pension and the amount of the pension. Brief as the reference to "superannuation" is in s. 3 of the Act, we do not understand from it that the legislature intended that the parties were to be precluded from negotiating pensions but not from negotiating retirement. If"superannuation" includes retirement, then an agreement between the College and an employee providing for early retirement cannot be the subject matter of a collective agreement and is therefore beyond the jurisdiction of this board. In case our interpretation of s. 3 of the Act is in error, however, we must consider the consequence of the fact that the collective agreement is silent on matters of retirement. The decisions cited to us which had to do with the silence of a collective agreement with respect to retirement saw this problem raised, broadly speaking, in two ways: either a compulsory retirement policy was objected to by an employee who did not wish to retire (e.g. Re Algonquin College, Re Cambrian College); or employees had been denied access to an early retirement plan of which they wished to take advantage (e.g. Re Canadian Broadcasting Corporation, Re City of Etobicoke). In these cases the boards of arbitration found that the absence of any reference to the matter in issue in the collective agreement in each case, left the matter as one within management's rights. In those cases in which it was argued that management must exercise its rights fairly and without discrimination, the response followed,the reasoning of the Court of Appeal in Re Metropolitan Toronto Board of Commissioners of Police (supra). If a board of arbitration was to have jurisdiction to consider the exercise of management's rights, such jurisdiction must be based on a provision of the collective agreement: ... In our opinion, the management rights clause gives management the exclusive right to 22 determine how it shall exercise the powers conferred on it by that clause, unless those powers are otherwise circumscribed by express provisions of the collective agreement. The power to challenge a decision of management must be found in some provision of the collective agreement. (at p. 687) The Court declined to permit the implication of a term in the collective agreement in issue that the management rights clause would be applied fairly and without discrimination, since to do so would be to add to the collective agreement, a power the arbitrator did not have. (p. 687) In the present case the Union does not in fact challenge the right of the College to have an early retirement policy. What it challenges is the way in which the policy has been applied, not in the selection of the grievor for access to the policy but rather for something the College is said to have done after accepting the grievor's request and reaching agreement with him. In that respect one might think that the result should not be any different than in the cases referred to above. Yet counsel for the Union proposes to argue that, if bad faith can be shown on the part of the College towards the grievor, this board will have a jurisdiction which it would not otherwise have. No aspect of the retirement policy is referred to in the collective agreement, nor is there any provision which it can be said gives us the authority to examine the way in which management has carried out what is within its exclusive rights. This is so whether it is said that the College's action was unfair, discriminatory or arbitrary. While the problem remains that management was acting on a matter about which the collective agreement is silent and in circumstances in which the agreement contained no provision which could be construed as limiting management's rights in this respect, the board is willing to hear argument that might demonstrate how the presence of bad faith would affect our jurisdiction. It is a matter of regret to us that this aspect of the matter was not argued 23 in its entirety at the hearing. However the parties must have the opportunity to do so if they wish. Counsel for the Union suggested that evidence on the merits should be heard - that is, on the question of whether the College acted in bad faith towards the grievor ~ before a conclusion on jurisdiction is reached. We would be most reluctant to hold a hearing to hear evidence about a matter over which we may have no jurisdiction. Apart from the foregoing issues raised by the grievance of the individual, for the future the Union seeks to have this board declare that early retirement agreements may not be entered into without its participation. In doing so it relies on Article 1.1 in which it is recognized as the exclusive bargaining agent for the employees it represents. It is in support of this broader challenge that the Union relies on decisions of the Alberta Labour Relations Board and the New Brunswick Labour and Employment Board (Re Salvation Army Grace Hospital and Re City of Saint John (supra)). Those cases involved voluntary severance packages made available unilaterally by employers. The Alberta Labour Relations Board found that such packages ... are not simply gratuitous payments by an Employer upon the termination of the employment relationship. Rather, employees who participate in an arrangement such as the one in the case at hand receive severance pay in exchange for giving up a set of rights under the collective agreement. In particular, rights arising from seniority are extinguished. An employer faced with substantial downsizing may, by virtue of a well- subscribed voluntary severance package, avoid some of the very real costs associated with the application of seniority-related provisions of the collective agreement (such as bumping). (at p. 6) The Board found that there was no" ... scope for an employer to implement such a 24 scheme without bargaining for it with the employees' exclusive bargaining agent". This argument was raised before the board in Re Canada Post (supra). That was not a case in which the board' s jurisdiction to consider a unilateral offer of a retirement incentive was questioned - and thus cases such as Re Metropolitan Toronto Board of Commissioners of Police were not argued - since Arbitrator Swan was exercising a jurisdiction under the collective agreement with respect to the movement of the grievor and others from one post office to another and had already made an interim award. The issue arose because, after the interim award had been made, the grievor requested and accepted a termination incentive. He nonetheless wished to continue with the grievance already before the board. The board reached the conclusion quoted earlier in this award, and made this final comment: This grievance may have been considered by the parties as a test case. If so, then this award must also stand for the proposition that such resignations or retirements, procured by the incentives offered by the Corporation, are presumptively enforceable against the employees. In the absence of circumstances of actual duress or unconscionability, the resignations or retirements will be conclusive. (at p. 81) Article 1.1 was not referred to in the individual grievance which was filed, nor was there any reference to an alleged breach of the Union's exclusive right to represent employees. The grievance simply claims a payment in a~cordance with an individual agreement and the early retirement plan and makes no reference to the Union or its non-involvement. Indeed the Union has said that it does not seek to reverse any early retirement agreement made so far. In the absence of a grievance we do not have jurisdiction to consider the Union's request for a 25 declaration as to the way early retirement agreements should be negotiated in the future. Given our view of the objection to the timeliness of the grievance, it is unnecessary for the Union to pursue its request for disclosure of the documents which were said to have relevance to that issue, namely any agreements between the College and the contractor. Any order that might be made with respect to the second type of document requested, namely documents prepared by the College in connection with its decision not to replace the grievor, should await determination of the jurisdictional issue. As indicated above we are prepared to receive further submissions restricted to the issue of whether the existence of bad faith (or its allegation) can form the basis for this board's jurisdiction. Any such submissions would be in writing. This is a matter for the Union to pursue if it wishes. We therefore order that the Union may do so provided it notifies this board and counsel for the College, not later than 30 days after the date of this award, of its intention to make such further submissions. We would then communicate with the parties to make the necessary arrangements. Dated at Kingston, Ontario, this.~.nd' day of March 2004. I.G. Thorne, Arbitrator I ~dissent .2-e, ~,-,..~-'}- ~' ~.~ ~ .~,){Z.,v,..~~' Ann E. Burke, College Nominee I~/dissent ~ g~¢'.,o.(~_~l_ ~"~,.~4~ZO,~"?"' ~';;.v~-'&~ ~-~ Sherril Murray, Union Nominee Sherril Mum'ray 104.,400t Ben Mill~ Rd. No,th YOrk. m:,:, ~¢'~¢ M.r, Thorne a.~! Ms. Mum'ray: Re: Lo¥8iist Cotte:~e and uP.~,~U - Grievance .¢ S~mpson This is ~ response to Mr., ]'home's .icier o~ March 2, 2804, t have had an oppor(unity to The Union was fully a~a¢8 of the issues to be argued by the College and was obliged to come (o the hearing completely prepared to make its response to the: College's ebjec~ion. Th~ the~y were ~¢~sre ¢ the issue ~s ,~,e~, from the csse law they provided a~d the argume~ ~* '~**' ~ufis¢ici~n. This i.s also evi.d-e~t from the fact that they did not t'~ke ~he position ,~cy had ~een te~en by eu~fise ~r requited 8n sdjournment to prepare their ca8~. ~r,y must mske its full ¢,,gu.. ,ant on the day of the hesd~g and c~not be allowed to have ~ "se~nd kick at the can", after it has compL-~e~ its argumen[, For ~ese ~asoos, as l indicated esd~er, 1 wii~ dissent on the issue of gMng the Union the oppo~unity to provide f'ufiher suppo~ for their argument that the a~iegat~o~ of '"bad f~ith" expand~ our ~ufisdiOtion. Fu~her, if ~he Un{on ~s to be given this o~o~un~,,, v- .. , ...~, ~t sho~td be .expressly ~m-i~e-d ~o any case law which ~t couid~should have Yours very TD~ -ninon was olive view t~t the ~n~ntive offered i~,~. S~pso~ was ~s ~t ap~rs on the ten,Sered est~.Nish a p~ma ~acie c~se as to the UmoW$ in~prerahon. Ordv ~he mcr/rs of the c~e in re[at/on to the eolleges~ "~ion pI~' c~ reveal in tinct whe~[~e.r or not Cae money paid. m the .gfie~-~r can be v~ewed ~ some~mg ~qh~c~ ise~.maed ......hv~ ~, ,,;~,~ ...... of~¢ Act ~' ob}ec~ io a fin~.g by ~e bo~d ~%hou! ¢~,Sdmme. The upie~ f~cused o~ wha.r is viewe~ by the tmion as a breach of the emp~oym'~s policy, and a ~.~ot,-,,,o, of ~= recogmnon ~taus~. The Umon ~a.¢~ ma the monet~ mcennve offered ro Mr. Simpso~ was nor a n~tter of"supera~ion' ~s <~parently excluded by the Act, and as a res~k .it m~st ~ bargained xmtb the union. Then ~here ~s a clear ne:ms m Lhe colieclive ~¢ement ~d "management rights" may be m¢Sewed. ....... m m~ so, ope of'the m'~evance, the union asserts tha~ I . ..~ "exc!u~ve ngh~o- - ~*' was ~cussed dtmK~ the grievance procedure and the fS~ce of the ~ievemce mco~ec.i¢ identified ~e m~dck ca 2. I. -Lq this member's view, the issue of bad faith did not arise a~ a basis of jurisdiction independent of ~qy anicte in ~e collective a~eement. It arose as D t~e aamo~/of money be paid ~o the g~.'or if he was or was no~ rcplac,d. Where ~he suggeshon of b~d ~.Uth arose w~xs a ~e imm.tree of d~menm ~smssed ~g ~ie empk, yer theg went to the issue of 'imeiiness'=; ~ot~tiflty the sm~e docmnmts that may be in the possession of the em¢oyer ti~ x~r, tfld I~xe ~e merits into ~e r~.m of ~ -~th. Tkm Union a~eges tb~t b~ thigh would exist if the coliege signed a deal with the ~ievor r~mt the poskion would indeed be filled and r'enmin in ti~e bm~ining m~it, iffi~-at wo~ had akeady bran con~acted out TO thru end, the would revea! wh~he~ or not ~he deal ~th ~e ~evor ~s made in gt~>d f~it.h. However, if ~he Board is in~ o~ect '~ its ~cimion ~5t~ reg~xds to bad faitB as an issue ofjurisdiczion and the union intends to asse~ the position, i join with the Chair in inviting the All of which {s r~tS~lB' submitte{ S~ewil M~ay.