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HomeMy WebLinkAboutGoossens 15-01-08.decIN THE MATTER OF AN ARBITRATION BETWEEN: Fanshawe College of Applied Arts and Technology , Employer, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Arbitrator APPEARANCES: For the Union: Ed J. Holmes, Counsel Gary Siroen, President, Local 109 Harold Goossens, Grievor For the Employer: Robert J. Atkinson, Counsel Don McIntyre, Labour Relations Consultant Heard in London, Ontario, on December 8, 2014. -2- INTERIM ARBITRAL AWARD I The two grievances of Harold Goossens, an Electrician in Facilities Maintenance, challenge the employer’s distribution of overtime work. The employer has raised a preliminary issue concerning the scope of the first of the two grievances. The parties agreed that I should hear them on the preliminary issue and render an award thereon before the merits of the grievances were addressed. Article 6.2.5 of the collective agreement reads, in part, as follows: The Colleges agree to attempt to distribute available overtime work as equitably as practicable amongst qualified employees in the work groups in which overtime is required. Article 18.5.1 reads, in part, as follows: A complaint shall be taken up as a grievance in the following manner and sequence provided it is presented within fifteen (15) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the employee. 18.5.1.1 Step One An employee shall present a signed grievance in writing to the Department Head of the Department in which he/she is employed stating the nature of the grievance, the remedy sought and shall be sufficiently specific to identify the alleged violation(s) of the Collective Agreement. -3- II The first grievance was dated February 17, 2012. It reads as follows: Violation of Articles 2, 3, 4, 6, 7, 18, the settlement awarded in January 2006 and any other perti- nent Articles of the Collective Agreement and labour legislations [sic ]. It was brought to my attention on Monday, February 13, 2012, when completing my timesheets for the pay period that other members within the work group recorded a large amount of overtime. When I inquired, it was pointed out that they had been doing so over a number of weekends. I inquired with my Manager Allan McLuskie in regards to the unfair distribution of overtime and my concerns were not addressed. SETTLEMENT DESIRED 1) Cease and desist 2) That I be made whole 3) Awarded payment for the overtime work that was performed which was not offered to me 4) The agreement in January 2006 be honoured and re-instated Union counsel stated at the hearing that he intended to assert a claim that the grievor should have been offered overtime on October 22, 23, 29 and 30, and November 5 and 6, 2011, as well as January 14 and 15, February 11, and July 14 and 15, 2012. He stated that the overtime worked in October and November 2011 had been performed by employees outside of the grievor’s work group, while the over- time on the other dates had been carried out by members of the grievor’s own work group. Counsel for the employer objected to the arbitrator’s jurisdiction in respect of the dates in October and November 2011 and July 2012, since the work allegedly performed on those dates was outside the scope of the grievance. In the Facilities Maintenance Department, the employees and management agreed on a protocol for the distribution of overtime following a group grievance on the subject in 2005 or 2006. It was commonly referred to in the Department as the Transparency Agreement. Under the agreement, the -4- employer undertook to maintain records of all overtime worked and to allow employees to access these records at will. It is not necessary to attempt to summarize the agreement, but it provided essentially that the qualified employee in each work group who had worked the least overtime that calendar year would be the first one offered the opportunity to work available overtime. Provision was also made for the case of refusal of offers and for the case of inability to contact employees on the list. The grievor testified that, while filling out his time-sheets on February 13, 2012, it was brought to his attention that some colleagues had worked week-end overtime in October and November 2011 and in January and February 2012 of which he had previously not been aware. He testified that, although he was always interested in performing overtime work, he did not make a habit of consulting the spread-sheet that was maintained pursuant to the Transparency Agreement every time he submitted his time-sheets. As for the overtime worked the week-end of July 14-15, 2012, he stated that he learned of a colleague being scheduled to do this work only after filing his grievance. He had been planning to take vacation at that time, but since he was the employee with the least overtime to his credit, he believed he should have been offered the overtime. Mr. Wayne Sippola, who was Supervisor of Trades in the Department from 2005 to 2013, testified that the XL spread-sheet provided for by the Transparency Agreement was updated every two weeks by the clerical staff after the trades employees had submitted their bi-weekly time-sheets. Usually, the updated totals were available for employees to see within three days. Employees could access both the current and archived spread-sheets by computer. He testified that the employees generally consulted the spread-sheets on a regular basis, checking for errors and omissions in the entries for themselves and for colleagues. They often brought to his attention possible errors and omissions in overtime worked by others since these could affect their own entitlement to future opportunities. Mr. Sippola testified that the 2005 -5- agreement had been reached locally and was a “shop agreement” which, as far as he was aware, had not been approved by the bargaining agent or by Human Resources at the College. He added that he had no specific information as to when the grievor became aware of colleagues having worked the overtime in the fall of 2011. III As regards the timeliness of the grievor’s allegations about the work performed in the fall of 2011, Mr. Atkinson, counsel for the employer, suggested that it was doubtful that the grievor became aware of the work in question only in February 2012, since employees generally consulted the spread-sheet regu- larly. If he became aware of these alleged violations before February 2012, his grievance would be untimely with regard to them. Counsel’s principal argument, however, was that the grievor was attempting to expand the scope of his grievance. He noted that, as acknowledged by union counsel, the contested overtime assignments in October and November 2011 had been performed by employees outside the grievor’s work group, whereas the statement of grievance referred specifically to overtime performed by “other members within the work group”. It was thus, not only too late for the grievor to contest the overtime assignments in question, but they were also not within the complaint contained in the statement of grievance. Under Article 18.5.1 of the collective agreement, the statement of grievance must be “sufficiently specific to identify the alleged violation(s) of the Collective Agreement”. As was held in Re Fanshawe College and Ontario Public Service Employees Union, Local 110 (2002), 113 L.A.C. (4 th ) 328 (Burkett), it was not open to a party unilaterally to expand a grievance to encompass a matter not grieved. The arbitrator should therefore rule that the grievance was limited to allegations about the performance of overtime work by other employees within the grievor’s work group. -6- Mr. Holmes, union counsel, maintained that the grievance, as it related to the overtime opportunities in the fall of 2011, was submitted on time, since the grievor only became aware of them on February 13, 2012. His failure to specify in the statement of grievance that he was concerned about over- time being worked by employees from another work group should be treated as a mere defect in form, and the courts had cautioned arbitrators many times that they should endeavour to resolve grievances on their merits and not on defects in form. Mr. Holmes referred to Re Fanshawe College , supra , and to Re Fanshawe College and Ontario Public Service Employees Union (unreported award of arbitrator Brent, dated November 1, 1991). IV The main question I have to decide at this stage is whether I can accept the grievance in front of me as a challenge to the assignment of overtime to other employees in the fall of 2011. The parties have invoked two competing principles on this question. For the employer, the pertinent principle is that the grievor cannot expand his grievance beyond what was described in the state- ment of grievance. For the union, the pertinent principle is that grievances should be resolved on their merits and not on the basis of technical irregularities, such as a poorly drafted statement of grievance. In Re Fanshawe College , supra , arbitrator Burkett was similarly faced with a dispute where these two principles were advanced, and he sought to explain how these two principles related to each other. This is what he wrote (at pages 333-4): The Chair of this Board, sitting as a sole arbitrator in Re Ontario Hydro and P.W.U. , supra , [(1996), 53 L.A.C. (4 th ) 163] and relying on the judgement of the Court of Appeal in Blouin Drywall Contrac- tors Ltd. , supra , [(1975), 57 D.L.R. (3d) 199] articulated the well-accepted principle that “grievances -7- are not to be defeated by mere defects in form or by technical irregularities” [p. 170]. In other words, arbitrators are to deal with the issue raised on a broad reading of the grievance. However, as was cautioned in Re Ontario Hydro and P.W.U ., supra , “it is not open to a party to unilaterally expand a grievance to encompass a matter not grieved” [p. 170]. Fairness, as well as the efficient administra- tion of the grievance and arbitration process, dictates that this be so. The aggrieved party is entitled to rely on the grievance as filed, albeit read in its broadest terms, and to govern itself accordingly with respect to settlement discussion, referral to arbitration and preparation for arbitration. The cases referred to in Re Toronto (City) and C.U.P.E., Loc. 43 , [(1974), 7 L.A.C. (2d) 53 (Simmons)] as relied upon by the Union, support this statement of general principle. In deciding whether the issue that is framed at arbitration is the same issue raised in the grievance as filed, an arbitrator must compare the grievance as written, including the remedy sought, to the issue as raised at arbitration, including the remedy sought. On examining the statement of grievance, I find that, contrary to the submissions of employer counsel, the grievor did not state that he was complaining about “other members within the work group [recording] a large amount of overtime”. The grievor made a reference to the overtime worked by members of his work group merely in the context of recounting how he came to inquire about the possibly irregular distribution of overtime. When he came to describe the remedy he sought, he stated that he wanted to be “[a]warded payment for the overtime work that was performed which was not offered to me”. In keeping with the principles enunciated by arbitrator Burkett, with which I respectfully agree, “[t]he aggrieved party is entitled to rely on the grievance as filed, albeit read in its broadest terms”. While the grievance before me could undoubtedly be understood to mean that the grievor was only concerned about the overtime work performed by other members of his work group, I am satisfied that, when “read in its broadest terms”, it can legitimately be taken as a challenge to the alleged unfair distribu- tion of overtime in general and not simply to the overtime recorded by other members of his work group. Complaining about the overtime opportunities in October and November 2011 was therefore not an expan- sion of the scope of the grievance as drafted, but was merely a clarification as to which of the many over- time assignments within the Facilities Maintenance Department he was contesting. -8- I am not satisfied that the grievance was untimely as regards the October and November overtime opportunities, since there was no evidence to contradict the grievor’s plausible assertion that he became aware of these opportunities only in February 2012. As regards the overtime assignment in July 2012, however, I do not understand how it can be regarded as included in this grievance. The grievance was submitted on February 17, 2012. It is prema- ture in relation to the July 2012 assignment, for which I therefore have no jurisdiction: see, e.g. , Re Fleet Industries Ltd. and I.A.M. Frontier Lodge 171 (Cromb) (2002), 112 L.A.C. (4 th ) 120 (Luborsky). I therefore declare that the grievance relates to all the overtime assignments challenged by the grievor except for those of July 14 and 15, 2012. The hearing will continue on dates to be fixed. DATED at Thornhill, Ontario, this 8th day of January 2015. _____________ Michael Bendel, Arbitrator