Loading...
HomeMy WebLinkAboutPrice 91-12-31IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF GRIEVANCE OF LIDIA PRICE BOARD OF ARBITRATION: Kevin M. Burkett - Chairman David Guptill - Employer Nominee Wally Majesky - Union Nominee APPEARANCES FOR THE Ann E. Burke - Counsel EMPLOYER: John Flegg - Manager, Employee Relations APPEARANCES FOR THE Howard Law - Grievance Officer UNION: John Molleson - Local President (418) Bob Chapman - Chief Steward Lidia Price - Grievor A hearing in this matter was held in Kingston, Ontario on September 23, 1991. AWARD 1. The Union grieves in this matter that the College is in breach of the collective agreement by reason of its failure to pay Ms. Lidia Price, a Secretary, a lead hand premium from September, 1986 to December, 1989. The Union acknowledged at the outset that we had been appointed under the current (1989-91) collective agreement. Notwithstanding the fact that we have been appointed under the current collective agreement the Union seeks relief back to September, 1986. The College takes the position that we are without jurisdiction to exercise remedial jurisdiction in respect of the period prior to September 1, 1989, the effective date of the collective agreement under which we have been appointed. 2. The parties made written submissions with respect to the temporal limits, if any, upon our remedial jurisdiction. We have given careful consideration to these submissions and find that we are without authority to remedy any breach of the collective agreement that may have occurred before September 1, 1989; the effective date of the collective agreement under which we have been appointed. 3. The Union takes the position in its written submissions that this Board was constituted under a series of expired collective agreements and that the Board should come to this conclusion based on the fact that neither the grievor nor the Union have ever indicated otherwise and that the grievance, as filed, alleges breaches of all relevant collective agreements. It is also submitted by the Union that the fact that the relevant pro- visions of the collective agreement have not changed through the three collective agreements in issue supports their contention. However, the Union was asked by the Chair under which collective agreement was this Board of Arbitration con- stituted? This question was put to the Union after the College had briefly explained its preliminary objection on timeliness. Counsel for the Union responded by saying that this Board was constituted under the collective agreement effective from September 1, 1989 to August 31, 1991 (the '89-'91 Agreement). This was the collective agreement in effect at the time the grievance was filed on January 11, 1990, and it should be noted that the grievance itself specifies "Viol. Art. 7.6 of Collective Agreement .... " The singular rather than the plural Collective Agreement~ was used. 4. Accordingly we now turn to the issue of relief under expired collective agreements. The applicable arbitral juris- prudence in this case is reflected in the oft cited award of Michel Picher in Re Goodyear Canada Inc. (1980) 28 LAC (2d) 196 at pp. 202-203, which reasoning has been consistently adopted and was followed in Re Parkwood Hospital, (1984) 14 LAC (3d) 215 (Weatherill) at pp. 220-221; Re Romi (Division of Alt Foods Ltd., (1986) 25 LAC (3d) 377 (Weatherill) at pp. 378-381; Re F.B.M. Distillery .Co. Ltd., 31 LAC (3d) 122 (H.D. Brown) at pp. 126-128; Re Mack Canada Inc., (1988) 2 LAC (4th) 304 (Burkett) at pp. 308- 311; Re St. Joseph's Hospital, London, (1989) 8 LAC (4th) 144 (Burkett) at pp. 149-152; Re St. John Shipbuilding Ltd., (1990) 12 LAC (4th) 322 (Kuttner) at pp. 327-329. 5. The Union asks this Board to adopt the reasoning of the majority in Re Clarke Institute of Psychiatry, (1982) 5 LAC (3d 155 (Beck) at pp. 163-164. However, the dissent of Mr. O'Byrne in that case, published at 6 LAC (3d) 131, has been adopted in preference to the majority decision (see Parkwood Hospital, supra, at p. 221; Re Romi, supra, at p. 381; Re F.B.M. Distillery, supra, at p. 126; Re St. Joseph's Hospital, supra, at p. 149. 6. The law, therefore, is correctly stated in the Goodyear award (supra) as follows: "In those cases where the action complained of can be characterized as a continuing breach of the current agreement, as distinguished from a single and spent breach of either the expired collective agreement or the current agreement, the board of arbitration can assdrt jurisdiction, but only so far as the grievance relates to the ongoing breaches of the current agree- ment. Its remedial authority does not extend retroactivity beyond the period of the collective agreement under which it is constituted.., and redress generally excludes any period before the grievance is brought except for the period within the time limits in the collective agreement. " (See also Mack Canada Inc. and I.A.M. (1988) 2 LAC (4th) 304 (Burkett.) 4. 7. The Union also relies on Re Red River Division Association No. 17, Manitoba Teachers' Society and Red River School Division No. 17, (1972) 25 DLR (3d) 106 Manitoba Queen's Bench. Firstly, it should be noted that the Red River case is distinguishable inasmuch as the Board of Arbitration in that case was constituted under the expired collective agreement in issue (see p. 107). Secondly, the Court, in Red River, relied on the fact that the governing legislation in that case provided an unlimited right to grieve ... "at any time..." and on the fact that the collective agreement in question was "... silent as to the time within which a grievance shall be presented, else taken to be abandoned" (see p. 112 Red River). In the case before this Board, the Colleges Collective B~rgaining Act R.S.O. 1980 c. 74 contains no such unlimited right to grieve "at any time" and the time limits in Article 18 are clearly mandatory (see Article 18.6.1 and 18.2.1 which deems grievances filed outside the time limits set out in Article 18 to be abandoned). 8. The distinctions noted above were discussed and accepted by the boards of arbitration in Re'F.B.M. Distillery, supra, at p. 127: "The Red River decision ... is dealt with in the Parkwood Hospital case in which the arbitrator noted that there was no question of timeliness in the grievance procedure and he supports the result in the Genstar case. In my opinion, neither of those cases support the conclusion reached by the majority in the Clarke Institute case. " and Re Parkwood Hospital, supra, at p. 219: "In Red River ... Wilson J .... held that an arbitration board did have jurisdiction to arbitrate grievances arising out of an expired collective agreement. In that case, it 5. appears that the proceedings to establish the board had begun before the 'agreement expired. The distinction is significant ... There does not appear in that case to have been any question of the timeliness of the grievance under the provisions of the collective agreement during whose term the grievance arose and the board was established. This case is thus authority .. for this proposition: the mere fact of expiry of an agreement does not deprive a board established under the terms of that agreement of jurisdiction it would otherwise have to decide matters arising out of that agreement." 9. The Union further relies on the Ontario Divisional Court's decision in Re Ontario Public Service Employees Union and The Queen in Right of Ontario et al. (1985) 51 OR (2d) 474, on judicial review of an interim decision of the Grievance Settlement Board. The ratio of this decision is found at p. 479 and states: "The Board would appear to have reached the conclusion that it was not properly constituted to hear grievances under expired agreements. The Board is a creature of statute and has been the body empowered to determine disputes under all collective agreements since 1974 to which the grievors in this case have been subject. This is a different situation from the Goodyear, where the board under a 1977 agreement declined jurisdiction to arbitrate disputes under two earlier agreements. The board in Goodyear appeared to recognize that the earlier disputes might be arbitrable by boards constituted under previous agreements. In the case at bar, the Board is the only body constituted to hear disputes under earlier agreements ... and at p. 480: "... The Board is a creature of statute which, at all relevant times, has had jurisdiction to deal with grievances under whatever collective agreement may have been in force between the employer and the applicant union. " Reference should also be. had to Re Romi (supra) at page 380-381: 6. "The Court's setting aside of the decision in the Clerk 6 General case was not, then, on the basis that the earlier cases on which the board had relied were wrong. As the Court makes clear, the results in those cases are not inconsistent with the final result in the Clerk 6 case. In the instant case, as in Goodyear, the arbitration tribunal is not one having jurisdiction in respect of previous collective agreements. " The reasoning in Re Romi is correct and, therefore, Re Ontario Public Service Employees Union~and the Queen in Riqht in Ontario et al (supra) has no application to this Board which was constituted under the '89-'91 Agreement. (See also Re Mack Canada Inc., supra, at p. 311.) 10. We also refer to the reasoning of Arbitrator H.D. Brown in Re F.B.M. Distillery, supra, at p. 126: "I am not persuaded by this line of authority submitted in this matter, that I have authority to grant a remedy to include breaches of collective agreements in existence between the parties prior to "this agreement", under which the arbitration of this case is constituted. The Divisional Court in the Clerk 6 case did not deal with Mr. O'Byrne's dissent concerning the very issue in that case. In my view, the Divisional Court's decision does not support the claim for relief by the union in the present case. The clarity and consistency in appropriate industrial relations policy and practice and the apDlicable precedents contained in the Romi a_D~d Goodyear ~ards directly deal with the issue now~ before me and I am persuaded to ~ollow the conclusions r~~d~'in those decisions." (emphasis added) 11. Finally, the Union relies on s.46(1) of the Colleges Collective Bargaining Act. This provision requires that all collective agreements provide for the final and binding settle- ment by arbitration of all differences, between the parties arising from the interpretation, application, administration or alleged contravention of the agreement including any question as to whether a matter is arbitrable. It is submitted by the College 7. that the last words of that provision concerning arbitrability show the weakness of the Union's argument in this respect. 12. Ail of the collective agreements in place between these parties have contained elaborate procedures for the filing of grievances and the final and binding arbitration thereof. Amongst those provisions have been the temporal limitations imposed by Articles 18.1.4, 18.2.1 and 18.6.1 noted above. These limitations, it is submitted, are intended, among other things, to restrict the potential damages to which the College may be subject by requiring that the grievor act quickly once the cir- cumstances have or ought reasonably to have come to their attention. Unlike the Ontario Labour Relations Act, there are no provisions under the Colleges Collective Bargaining Act whereby these limits may be extended at the discretion of the Board of Arbitration. It is submitted that the policy of the applicable legislation and the intent of the successive collective agreements has been that there should be timely processing and finality to grievances arising between these parties. Such a policy does not violate the provisions of s.46(1) of the Ac~, but merely imposes certain procedural requirements on the final and. binding s~ttl~ment of all differences between the parties. 13. Having regard to all of the foregoing we hereby find that this Board has no jurisdiction to deal with matters arising under any collective agreemen~ other than the '89-'91 collective agreement; the collective agreement under which we have been appointed. · 8. 14. The second issue to be addressed is whether or not Ms. Price was told by Ms. Arlene Wall, the Administrative Assistant, Science and Technology and Ms. Price's immediate' supervisor, that she was not responsible for allocating or assigning work to other support staff employees or otherwise monitoring their work. The College takes the position that Ms. Price was so notified on June 22, 1989 (some two months prior to the commencement of the collective agreement under which we have been appointed) and, therefore, cannot succeed in her claim for lead hand premium for any time worked under the subsisting collective agreement. The Union, on the other hand, takes the position that Ms. Price was not so notified until December 11, 1989 and, therefore, is entitled (apart from her claim dating back to 1986) to lead hand premium for the period September 1, 1989 (the date as of which the instant agreement commenced to operate) to December 11, 1989. 15. The Board heard evidence from both Ms. Wall and Ms. Price. Ms. Wall testified that she spoke to Ms. Price on a number of occasions prior to June 22, 1989 concerning the limits of her responsibilities and that she drove home these points to Ms. Price on June 22, 1989 in response to complaints from other support staff employees. Ms. Wall testified that she made written notes of her conversation with Ms. Price and then entered these notes into her computer as had become her practice. Her notes of the conversa- tion with Ms. Price on June 22, 1989 read as follows: "June 22/89 Spoke with Lidia regarding attitude and performance problems that need to be corrected. Appears unable to accept my role as AA - indicated she used "to run the office, tell the support staff what to do and if anybody had problems they came to me". I explained that her duties had changed since the reorganization and these are my responsibilities now. " Ms. Wall had a similar conversation with Ms. Price on December 11, 1989. 16. Ms. Price denied in examination in chief that she had had a conversation with Ms. Wall on June 22, 1989. It was her evidence in chief that the conversation referred to by Ms. Wall occurred on December 11, 1989. She testified that the only con- versation she had had with Ms. Wall at about this time concerned her booking off on sick leave in July. She testified that this conversation occurred during the first week in July. However, when shown her attendance record for the relevant period she acknowledged that she commenced sick leave on June 26, 1989 and had met with Ms. Wall on June 22, 1989. 17. We have considered the evidence of both witnesses. The fabrication of evidence in a proceeding such as this is a criminal offence. We have no reason to conclude that Ms. Wall, who appeared as a credible forthright witness, fabricated the notes of the June 22, 1989 meeting that she relied upon before us. The evidence establishes conclusively that there was a meeting between Ms. Wall and Ms. Price on June 22, 1989. We accept these notes as an accurate recounting of what was said at this meeting. However, in coming to this conclusion we note that Ms. Price had difficulty recollecting that there had been a meeting on June 22, 1989 and attribute her denial to memory lapse rather than any attempt to mislead the Board. 18. We are satisfied that Ms. Price was put on notice on June 22, 1989 that under the reorganization that had been effected Ms. Wall was responsible for assigning work to and super- vising the work of the support staff in the office and that Ms. P~ce had no responsibilities in this regard. Accordingly, any claim for lead hand premium from June 22, 1989 must fail and we hereby so declare. 19. Having regard to all of the foregoing this grievance is hereby dismissed. December 1991. DATED at Toronto the 31st day of / I concur "David Guptill" Employe~ Nominee I dissent '"Wally Majesky" Union Nominee