HomeMy WebLinkAboutUnion 03-05-18 ~o-o~- ~ I
IN THE MATTER OF AN ARBITRATION
BETVVEEN: SAULT COLLEGE
AND ONTARIO PUBLIC SERVICE EMPLOYEES
UNION, LOCAL 612
AND IN THE MATTER OF A UNION GRIEVANCE
OPSEU FILE #00D365
BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR
DAVID CAMELETTI, COLLEGE NOMINEE
EDWARD SEYMOUR, UNION NOMINEE
APPEARANCES
FOR THE COLLEGE: DAVID W. BRADY, COUNSEL
FOR THE UNION: GAVIN LEEB, COUNSEL
SUPPLEMENTARY AWARD
Further to the Board's decision that the collective agreement
applies to students employed during the college summer vacation period and the
parties' agreement to establish a wage rate (or wage rates) applicable to these
employees, the Union requests that the rate so established be applied to
students employed during the summer of 2002.
In support of its request, the Union submitted, in effect, that this
matter has already been decided in the Board's previous awards. In the result, it
was submitted that the Board has no option but to accede to the Union's request.
For its part, the College maintained that this matter has not been determined and
asked that the Board exercise its discretion to deny the Union's request to apply
the agreed-upon wage rate to students employed in the summer of 2002.
With respect to the exercise of the Board's discretion, the President
of the Student Administrative Council, Danielle Valcheff, testified that if the
agreed-upon wage rate were applied in this case, two-thirds of the amount owing
(or some $46,000) would come from tuition fee set aside funds. These funds are
comprised of three components: the School Year Work Study Program and the
Sault College Summer Work Program, which provide work for students during
the school year and summer vacation period, respectively, and the Exceptional
Expense Bursary Program, which disburses funds to students whose
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circumstances change unexpectedly. Ms. Valcheff further testified that although
the wage increase resulting from the application of the agreed-upon wage rate to
students employed in the summer of 2003 would have come from the tuition fee
set aside funds, the College's Financial Aid Officer was able to transfer all of the
positions from the Sault College Summer Work Program to the Ontario Work
Study Program. As a result, 75% of the wage increase was paid by the
provincial government and 25%, by the College. The important point is that the
payment did not come out of the tuition fee set aside funds. In any event,
according to Ms. Valcheff, a similar option would not be available for the summer
of 2002. Accordingly, a wage increase in respect of this period would have to be
paid out of tuition fee set aside funds which, she suggested, would result in the
loss of one of the student aid programs. Finally, Ms. Valcheff acknowledged that
she was unaware that the College paid 20% of the wages of students employed
under the Sault College Summer Work Program.
Submissions for the Union
As indicated, the Union took the position that the matter in dispute
has already been determined and, based on that determination, the Board has
no option but to order payment of the agreed-upon wage rate to students
employed in the summer of 2002. The Union further submitted that the issue is
not one of discretion but, even if it were, the Board should exercise its discretion
to order the payment in question. In this regard, the Union pointed out, firstly,
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that the Union waived its claim for payment of the agreed-upon wage rate for the
summers of 2000 and 2001, effectively putting the College on notice of its claim
for the summer of 2002. Nevertheless, the College failed to make adequate
provision for the impact of that claim. Secondly, although the Union
acknowledged the concern of the Student Administrative Council that payment
made out of the tuition fee set aside funds would not be available for other
student aid programs, the Union pointed out that the College assumes
responsibility for a portion (20%) of student wages. More importantly, the
College is the Employer and the Union submitted that it is the obligation of the
Employer to pay the wage increase. Indeed, the Union indicated that it would not
object to an order that the wage increase not be paid out of the tuition fee set
aside funds.
Submissions for the College
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For its part, the College submitted that the matter in dispute,
namely, payment of the agreed-upon wage rate to students employed in the
summer of 2002, has not been determined by the Board. Moreover, it was
submitted that the payment is a form of damages, in respect of which the Board
has discretion. The College further submitted that the Board should exercise its
discretion to deny payment of damages. In this regard, the College submitted
that an award of damages is not intended to be punitive in nature. However, an
award of damages to students employed in the summer of 2002 would have a
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punitive effect on tuition fee set aside funds. It was further submitted that
students were excluded from the scope of the bargaining unit by mutual
agreement of the parties, although that agreement was void as being contrary to
statute. Moreover, although the Board recognized that it would have been
equitable to give effect to an argument of estoppel in deciding whether students
came within the scope of the bargaining unit, the Board was precluded by
operation of law from doing so. As well, the Board was precluded from giving
effect to an equitable argument, by way of estoppel or rectification, in relation to
whether students were covered by the terms of the collective agreement.
Nevertheless, it was submitted that the Board should give effect to
considerations of fairness and equity in disposing of the Union's request for relief.
With regard to equity, the College submitted that as the Union was
a party to an agreement which resulted in the exclusion of students from the
bargaining unit over a 30-year period, the College ought not to be solely liable for
damages in respect of the summer of 2002. Furthermore, an award of damages
would reduce the funds available to employ students in the future, as current
students would be required to pay for work done by former students (through the
tuition fee set aside funds). Moreover, the College submitted that as the
collective agreement was not negotiated between the parties to the arbitration
(the College and the Local Union), the College should not be required to expend
its limited resources in order to fulfill a bargain (namely, to exclude students
employed during the summer vacation period), which was made between the
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parties to a province-wide collective agreement between the Council of Regents
and the Union.
Reply Submissions for the Union
Although the Union acknowledged that it was party to an
agreement which improperly excluded students from the scope of the bargaining
unit, when the grievance was filed on May 2, 2000, any reliance the College
might have placed on the Union's agreement came to an end. Furthermore, the
Union submitted that it addressed the matter of equity by waiving its claim for the
agreed-upon wage rate in respect of the summers of 2000 and 2001. In any
event, it was submitted that students who were employed in the summer of 2002
are entitled to equity as well. Moreover, although the College made reference to
its limited resources, there was no evidence upon which to conclude that
payment of the agreed-upon wage rate would result in a hardship (in relation to
jobs which would be available to students in future or otherwise). Accordingly,
the Union requested that the Board issue an order requiring the College to
reimburse students employed in the summer of 2002 in accordance with the
agreed-upon wage rate.
Decision
The issue at this juncture is whether students employed in the
summer of 2002 are entitled to be paid at the wage rate agreed to between the
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parties pursuant to the Board's award dated July 29, 2003, namely, Payband 1,
Step 1 under Appendix E to the collective agreement.
By decisions dated February 19, 2002 and May 16, 2003,
respectively, the Board found that (1) student employees were improperly
excluded from the scope of the support staff bargaining unit; and (2) student
employees were covered by the collective agreement. Prime among the terms of
the collective agreement which have application to student employees is the
wage grid. In this case, the parties agreed that these employees be paid at
Payband 1, Step 1 of the wage grid and have applied that rate to students
employed in the summer of 2003. Nevertheless, the College objects to paying
this rate to students employed in the summer of 2002. However, as a matter of
contract, the rate must be paid. There is no discretion in this regard. Once the
parties have agreed upon a wage rate (in this case, a student rate) and
employees qualify for that rate, apart from the application of the doctrine of
estoppel, there is no discretion with respect to payment of that rate.
Moreover, to the extent the matter was relied upon by the College,
the Board finds that this is not an appropriate case in which to apply the doctrine
of estoppel. Although it is arguable that by negotiating an exclusion for student
employees over a long period of time, the Union made a representation that the
collective agreement would not apply to these employees, the Board found in its
decision of May 16, 2003 that it would thwart the statutory scheme to give effect
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to an estoppel argument. And, as there could not have been an estoppel in
relation to the application of the collective agreement as a whole, it would seem
that estoppel could not be applied to prevent the application of a particular
provision of the agreement (in this case, the wage rate) based on the same
representation (namely, that the collective agreement would not apply to student
employees). Accordingly, the matter must be determined in accordance with the
terms of the collective agreement. Therefore, although the Board has taken note
of the College's equitable argument, there is no basis upon which to give effect to
this argument. The only relief which could have been provided would have been
by the parties themselves. However, no agreement was reached with respect to
the summer of 2002 (although agreement was reached in relation to the summer
of 2003 and the Union waived its claim in respect of the summers of 2000 and
2001). Finally, although concerns were raised by the Student Administrative
Council that payment of the 2002 wage rate would be taken out of tuition fee set
aside funds, this is a matter between the Student Administrative Council and the
College. The Board's jurisdiction extends only to directing that the College make
the payment in question.
Accordingly, the Board finds that students employed in the summer
of 2002 were entitled to be paid the wage rate agreed to between the parties and
directs that they be paid the difference between the amount they have already
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received and the agreed-upon wage rate. The Board will remain seised for
purposes of implementation.
DATEDAT TORONTO, this day of Mardh, 2003.
Chair
See Dissent Attached
College Nominee
"Edward Seymour"
Union Nominee
I am firmly of the belief that this Board of Arbitration has the discretion to
decline to order the wage rate established for students employed during the
summer vacation period.
Factors In Support of the Exercise of Discretion to Deny Relief
Among the factors that weigh in favour of our exercising this discretion include
the fact that the parties for more than three decades did not apply the provisions of
the collective agreement to students employed during the summer. While this was
ultimately found by this Board of Arbitration not to be allowed under the
applicable legislation, the reality has been up until the initial award herein that
neither party enforced the terms of this agreement insofar as students employed
during the summer are concerned. It is strongly against all equities in these
circumstances to require the College to retroactively make a payment to students
at a time when they were not regarded by either party to be covered by the
collective agreement.
Also, what is crucial is the evidence given by Ms. Danielle Valcheff with respect
to the effect that the retroactive wage increase would have on the College's tuition
fee set aside funds, particularly the probable loss of one of the student aid
programs. This is in my respectful view a substantial and legitimate reason why
this Board of Arbitration has the appropriate grounds to deny the payment of the
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agreed-upon wage rate for students employed in the summer of 2002.
I also make reference to other factors raised by the College and cited in the outline
of the submissions by the College.
Authority of the Board to Exercise'Discretion
It is clearly within the authority of this Board of Arbitration to decline to
exercise its discretion. Section 46 of the Colleges Collective Bargaining Act
R.S.O. 1990 Chap. C.15 gives this Board the authority to make f'mal and binding
decisions in relation to the grievances before it. That broad authority in my view
bestows upon this Board of Arbitration a decision-making authority that is broader
than a mechanical application of the terms of the agreement in circumstances like
those in this grievance. In other words, this Board of Arbitration has more
control over its remedial authority than a court of law for example would.
In Re Crestwood Pulp and Paper Ltd. and Pulp, Paper and Woodworkers of
Canada 17 L.A.C. (2d) 442, Arbitrator J.C. Smith wrote as follow:
There are certain fundamental differences between an arbitration
board and a Court. A Court of law has no discretion in regard to
whether or not dmnage are awarded for a breach of contract. If
there is a breach, damages are shown, and there is no legal defence
or special legal doctrine operating which precludes an award of
damages, then damages must be given. An arbitration board in a
labour dispute, although it has power to award damages...is not
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bound to award to award damages for a breach of the collective
agreement. There are more remedies open to an arbitrator than
there often are to a Judge. The arbitrator ought to apply the
remedy which is the most appropriate in all the circumstances.
In that decision, the Board of Arbitration declined to award damages against a
Union local for an illegal strike on the basis that the Employer had proceeded
against the parent Union by way of a case before the Labour Board for a
declarative judgment instead of seeking damages against it through arbitration.
Reference is also made to the decision of FPC Flexible Packaging Corp. and
G.C.I.U., Loc. $O0-M (Re Annette) 77LAC (4t~') 198 and the cases cited therein
as authority for the proposition that an arbitrator has control over the amount,' if
any, and the period of the compensation that may be ordered for breaches of a
collective agreement.
In support of the proposition that arbitrators have broad remedial jurisdiction
along the lines suggested above, I make reference to the recently released decision
of the Supreme Court of Canada in Alberta Union of Provincial Employees v.
Lethbridge Community College [2004] S.C.J. No. 24. This decision from this
country's highest judicial body involves a judicial review of the exercise of a
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decision by an Alberta Board of Arbitration to order damages instead of
reinstatement for a dismissed employee.
The Supreme Court of Canada in a unanimous decision declined to overturn
the Board's exercise of its remedial authority. Of particular interest are the
following excerpts from the judgment of Mr. Justice Iacobuccci supporting a
board of arbitration's broad remedial authority.
In Paragraph 40, he writes that this "Court's jurisprudence has recognized the
broad remedial powers required to give effect to the grievance arbitration
process."
In Paragraph 41, he notes that, in various leading decisions, "the Court
expressly recognized the arbitrator's heightened competence in adjudicating
breach of rights under collective agreements," and that these "decisions mark
a trend in the jurisprudence toward conferring on arbitrators broad remedial and
jurisdictional authority." He concludes the paragraph with the words that arming
"arbitrators with the means to carry out their mandate lies at the very core of
resolving workplace disputes."
The above decision of the country's highest court underlines the recognition of
the broad remedial authority that has been bestowed' upon boards of arbitration
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which gives this tribunal the authority to decline to award what the Union is
seeking.
Estoppel
The College's arguments with respect to estoppel are set out at length. This
is equally an appropriate ground for denying the remedy sought by the Union.
On both grounds, the College had provided compelling reasons as to why
no back award of wages should be granted to the students employed in the summer
of 2002.
CHAIR'S ADDENDUM
Having read Mr. Cameletti's dissent, I would comment as follows:
This is not a case of whether the Board should exercise its
discretion to apply the agreed-upon wage rate to students employed in the
summer of 2002. As the majority award notes, entitlement to the agreed-upon
rate is a matter of contract, and not discretion. Accordingly, cases relied upon by
the dissent which deal with the exercise of discretion in entirely different contexts
would appear irrelevant to the Board's determination in this matter. Therefore, a
decision involving the discretion of a board of arbitration to award damages
respecting an illegal strike (Re Crestbook Pulp and Paper Ltd. and Pulp, Paper
and Woodworkers of Canada, Local 15 (1977), 17 L.A.C.(2d)442 (Smith)) would
seem to have no application to this case.
As well, although retroactive in the sense that it will be paid
subsequent to the date of their employment, payment of the agreed-upon wage
rate to students employed in the summer of 2002 is not retroactive in relation to
the filing of the grievance. Rather, it is a prospective payment (the grievance
having been filed on May 2, 2000), which must be made in accordance with the
terms of the collective agreement. Accordingly, a decision limiting retroactive
compensation to a "reasonable period" prior to the filing of the grievance (Re
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FPC Flexible Packaging Corporation and Graphic Communications International
Union, l_oca1500-M (1998), 77 L.A.C.(4th)198 (Bendel)) is also not of assistance.
Finally, a decision which approved of an award of damages in lieu
of reinstatement, to an employee dismissed for non-culpable conduct, pursuant
to an arbitrator's remedial powers under Subsection 142(2) of the Alberta Labour
. Relations Code (Alberta Union of Provincial Employees v. Lethbridge Community
College [2004], S.C.J. No. 24, 2004 SCC 28) seems irrelevant to the matter at
issue in this case.
Chair