Loading...
HomeMy WebLinkAboutGlenville 97-10-17AND IN THE MA'I-I'ER OF the arbitration of the grievance BETWEEN: Centennial College of Applied Arts and Technology - and - Ontario Public Service Employees Union PLACE AND DATE OF HEARING: Toronto, Ontario, October 8, 1997 BOARD OF ARBITRATION: David Guptili Larry Robbins Stanley Schiff, chairman APPEARANCES FOR THE EMPLOYER: Linda Carson, labour relations advisor Timothy Liznick, counsel APPEARANCES FOR THE UNION: Larry Farr, local union president Rob Sinclair, chief steward Patrick Glenville, griever Ed Holmes, counsel AWARD AND REASONS ON COLLEGE'S PRELIMINARY OBJECTION The College has raised a procedural objection to our hearing the merits of the grievance. The College says that the grievance is not arbitrable for two reasons. The union's reference to arbitration came in proper form only long after the mandatory ten- day time ~imit. A notice sent within the limit was only a statement of intention and was sent to the wrong person. But, even if that notice was adequate, since the union did not then act promptly to complete creating the board, arbitration is barred by laches. The union says that the reference to arbitration was timely and in proper form. Anyway, the College has waived the objection. The College's decision at Step 3 came on October 19th, 1995 in a memorandum from Elizabeth Horlock to Rob Sinclair. Horlock had been designated by the College's president to handle the Step 3 discussions. Sinclair was the local union's chief steward. In the memorandum Horlock said that the grievance was denied, and listed the reasons. On October 27th Sinclair sent a memorandum to Horlock telling her that "your response to the Step 3 grievance...is unacceptable. Therefore the Union will be forwarding the matter to a Board of Arbitration as authorized in Article 18.7.3 of the Collective Agree- ment.'' For the purposes here, nothing further happened until January 29th, 1997 when Kathleen Lawrence, a grievance officer of the provincial union, sent a letter about the grievance to the president from the provincial union's head office' This is to advise that your reply to the captioned grievance is not satisfactory. We are, therefore, referring the matter to a Board of Arbitration. By copy of this letter, we are bringing this matter to the attention of Human Resources Secretariat, Ontario Council of Regents so that the selection of a Chairperson and a date for a hearing may be arranged .... The addressees of copies set out at the foot of the letter include the designated contact person at the "Human Resources Secretariat, Ontado Council of Regents" and "Ron Kelly, Scheduling Committee". According to the longstanding practice of the Ontario Council of Regents and the provincial union, their joint scheduling committee met in due course to consider getting -2- this grievance, among others, on to arbitration. The committee assigned it, with hearing date attached, to the chairman of this board. The letter on the committee's behalf so informing the chairman and giving the name and address of the College's nominee is dated June 23rd, 1997. A copy is shown as having been sent to the College's Human Resources Department. The union then wrote to the chairman on June 24th, giving the name and address of the union's nominee. A copy is shown as having been sent to the Council of Regents' contact person for the purpose. Copies of the chairman's letter of July 8th informing the nominees of the place and time of the hearing were sent to the College's then Director of Human Resources and to the Regents' contact person. On September 29th, 1997 the College's legal counsel sent a fax and the original letter to Lawrence setting out the procedural objections for the first time. These were argued, somewhat modified, at the opening of the hearing on October 8th, the date the joint scheduling committee had set for the hearing as announced to the chairman in the appointment letter of June 23rd. We need not - and do not - decide the adequacy of the referral to arbitration. Even if the College is right on all counts, in the circumstances the College has waived the objections. Waiver results from a party's condoning - acquiescing in - a previous breach by the other party. When the breach is merely procedural, as here, that may be inferred from the party's failure to object in reasonable time and its carrying on the relationship in the interim as if nothing wrong had happened. Waiver is not unavailable in colleges' ar- bitrations on the ground that it demands amending the collective agreement, as the board said in Re Cambrian College and OPSEU, Union grievance(1987) (Samuels, chairman). The board quoted from Re Regency Towers and Hotel Employees Union (1973), 4 L.A.C. (2d) 440, 444 (Schiff, chairman), in support of its proposition. The chair- man of this board authored the Regency Towers awarcl almost twenty-five years ago and, it seems now, may have used somewhat misleading language when discussing the rationale of waiver. The intention was to say merely that, even if waiver rested on the -3- agreement's amendment, that was shown on the facts of the particular case. The argu- merit was the same Harry Arthurs had used in Re Hamilton Terminal Operators Ltd. and Int'l Longshoremen's Ass'n (1966), 17 L.A.C. 181,187., cited as support in Regency Towers. Arthurs immediately added that "waiver does not constitute an amendment of the ageement". We agree with that and have no trouble considering waiver for applica- tion in colleges' arbitrations. The fax and letter from the College's counsel went out on September 29th, 1997, eight months after Lawrence's letter from OPSEU's head office to the College's pres- ident and almost two years after Sinclair's memorandum to Horlock. Between the date of Lawrence's letter and that of counsel's fax and letter, the scheduling committee cre- ated by the parties to the collective agreement chose the board chairman and set the date of the hearing. The parties immediately followed by choosing and announcing their respective nominees. After that lapse of time and all that activity by the parties' commit- tee and the parties, acting on behalf of the College and the local union, it was too late for the College to complain about the matters put to us: well before the September 29th fax and letter went out, the College had condoned - had acquiesced in - any alleged failure by the local or the provincial union to begin in time or complete in time the pro- cess of getting the grievance to arbitration. As a result, the College's objections are waived. We see that the board in George Brown College and OPSEU, De Simone griev- ance (1995) (Burkett, chairman), found waiver on facts very similar to those before us. The college had argued that it was not involved in creating the board and had no oppor- tunity to object before the hearing opened. While the award does not deal explicitly with the first argument, the finding of waiver is obviously a rejection. Our answer we set out above: the Council of Regents, as a party to the collective agreement, acted on behalf of the College in the working of the joint scheduling committee and the appointment of the nominee. To the second argument the board said that the college was bound to object promptly to the alleged defect and could have done so in the course of its on- going dealings with the local union on the various issues coming up. Id. at 13-14. We agree with that. At the end we note that arbitrators acting outside the college system -4- have found waiver in very similar situations. For a recent example, see Re Canada Post Corp. and CUPE, McGrogan grievance (1991), 22 L.A.C. (4th) 430 (Jolliffe, arbit- rator). The preliminary objection is dismissed. DATED at Toronto this 17th day of October, 1997. ~ Sch~airman