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HomeMy WebLinkAboutVisca 97-04-18IN THE MATTER OF the grievance of Antonio Visca AND IN THE MA-FI-ER OF the arbitration of the grievance Seneca College of Applied Arts and Technology - and - Ontario Public Service Employees Union (/V'/.~(',Z~rI ~') PLACE & DATE OF HEARING' Toronto, Ontario, April 1, 1997 BOARD OF ARBITRATION: Ron Hubert Pamela Munt-Madill Stanley Schiff, chairman APPEARANCES FOR THE EMPLOYER' Mel Fogel D. K. Gray, counsel APPEARANCES FOR THE UNION: Antonio Visca Sarah Visca Rebecca Murdock, counsel AWARD AND REASONS ON UNION'S MOTION Antonio Visca was employed as a caretaker. He was discharged by a letter dated October 25th, 1996, from Mel Fogel, the Director of Employee Relations. The stated ground is theft: the letter says that he removed the listed items of College property with- out getting his supervisor's permission. On October 28th two completed grievance forms signed by Visca were put in. Which came first, is unclear. In both forms there is a claim for reinstatement to the care- taker job without loss of pay, seniority or benefits. One of the forms says that "the Col- lege has violated Article 18.7.2 of the support staff collective agreement by dismissal of my employment from the College as a result of the letter from Mel Fogel, Director Em- ployee Relations, dated October 25, 1996." We will call that the "art. 18.7.2 form". The other form says that "the College has violated Article 2.3 by dismissing me from the Col- lege as a result of my physical disability." We will call that the "art. 2.3 form". The union tells us that Visca is epileptic and mildly retarded and that the College has not respond- ed positively to his claim about shift allocation to accommodate his condition. Some time in the fall the parties discussed the content of both grievance forms at · what we infer was a Step 3 meeting. On December 10th the union sent a letter to Fogel with this caption: Re: Grievance(s) of Visca, Antonio LOCAL 0561 Dismissal; Article 18.2.7; GRIEVANCES(S) DATED 10/28/1996 (The parties make nothing of the reference to art. 18.2.7 rather than 18.7.2, and we take it to be an obvious typing error that everyone has ignored.) The body of the letter be- gins, "This is to advise that your reply to the captioned grievance(s) is not satisfactory. We are, therefore, referring the matter to a Board of Arbitration." This board was then constituted according to the parties' practice elaborating the procedure set out in the collective agreement. The grievance the subject of the union's letter was assigned to us. At the opening of the hearing the union moved that we consolidate the griev- ances in the two forms and hear the attack against the discharge as set out in both. The union says that two grievances were put in on October 28th but that only the one in the art. 18.7.2 form was referred to arbitration. The failure to refer the grievance in the art. 2.3 form is the result of a mistake. As an alternative argument the union says that there is only one grievance - that against the discharge - put in by the two forms. The ground set out in the art. 2.3 form is part of what we should determine. The College says that we have no jurisdiction under the agreement to consoli- date what are effectively two grievances. Our considering what is in the art. 2.3 form would violate the agreement,s referral to arbitration provisions as well as the parties' settled procedures for constituting arbitration boards. We consider first whether there are two grievances or one. The mere fact that two pieces of paper Were put in is not enough to create two grievances. While arts. 18.1.4 and 18.7.2 and the Step provisions of art. 18.6 empha- size that a grievance must be in writing, the statement of the complaint does not have to be written on one piece of paper. The writing put in at a given point of time can go over onto two or more pages. We can also contemplate a written grievance being put in at one point of time and then being amended by some writing on another piece of paper added within the 15-day time limit. If either were what happened here; the error of somehow formally referring Only one of the pieces of paper to arbitration would, we think, not matter: the other papers should be seen as coming along too. But neither was what happened here. On their face, the two forms are not the continuing written statement of one complaint. Nor, as they read, is the one designed to amend the other. So, whether there is one grievance or two depends on a closer look at what the two forms say and how the collective agreement affects that. Reading what was written, we see two different complaints. The art. 18.7.2 form attacks the discharge solely on the basis of the "just cause" standard art. 18.7.2 speci- fically provides. The art. 2.3 form ignores "just cause"; it alleges that the discharge "as a result of my physical disability" violates the agreement's prohibition against stated kinds of discrimination. As we understand the procedures in arts. 18.6 and 18.7, prearbitra- tion consideration of a grievance against discharge on the ground of no just cause be- gins at Step 3 under art. 18.7.2. But the grievance in the art. 2.3 form - since not an allegation of "dismiss[al]...without just cause" - starts at Step I under art. 18.6.1. It app- ears that the parties nonetheless considered both together at a Step 3 meeting. That, of '¸3- course, was their prerogative and, since there was indeed onlYone discharge, a good idea. That the union too has regarded these as two grievances is shown, first, by the specific reference in the union's December 10th letter to the grievance in the art. 18.7.2 form. Then, before us, the union's counsel opened by moving to have us consolidate the grievances for hearing and determination. The grievance in the art. 18.7.2 form, counsel said, had been referred to arbitration but the other grievance had not. It was only part way through argument, after some questions from the board, that counsel urged us to see the contents of the two forms as one grievance. Since there are two separate grievances we cannot do what the union wants. Articles 18.7.3, 18.8.1 and 18.8.2 direct how grievances get before arbitration boards. Under art. 18.7.3, governing grievances against discharge on the ground of no just cause, "the grievor shall...by notice in writing...refer the matter to arbitration as pro- vided in this Agreement." Under art. 18.8.1, governing all other kinds of grievances, it seems to be the union that sends the written notice of referral. Article 18.8.2 directs that "[a]ny matter so referred to arbitration...shall be heard by an Arbitration Board of three (3) persons" created in the manner then set out. The grievance in the art. 2.3 form was never referred to arbitration and is therefore not at this point subject to determination by any arbitrator. We have no power to do what the collective agreement says the grievor and the union must do. Even assuming that arbitrators may, over a party's objection and beyond what a collective agreement provides, order consolidatation of separate griev- ances already at the arbitration stage, we cannot bring before us a grievance never referred to arbitration. The only grievance before us is therefore the one set out in the art 18.7.2 form, alleging discharge without just cause. The College says that, at the hearing of that grievance, what is alleged in the art. 2.3 form is irrelevant. For the purpose of the union's motion we need not, and do not, decide the point. We know however that, in determining whether a discharge was for "just cause", arbitrators look at all the surrounding circumstances. It occurs to us now that, at the least, such circumstances could conceivably include violation of other provi- sions of the collective agreement. We also know that, apart from enforcing only obliga- 4 tions specifically stated in the agreement, arbitrators have often imposed on employers the obligations under human rights legislation. See, e.g., Fte Canada Post Corp. and C.U.P.W. (1993), 38 L.A.C. (4th) 1, 19-20 (M. Picher, arbitrator). If and when the union presents evidence relating to the grievor's disabilities, we will determine any objection the College may make. The union's motion is dismissed. The hearing will proceed on the grievance as set out in the art. 18.7.2 form. DATED at Toronto this 18th day of April, 1997.