HomeMy WebLinkAboutFridman 96-01-25M/9so�&ga. 4-
IN THE MATTER OF AN ARBITRATION
BETWEEN
c� Art Gallery of Ontario WECEIVE
4
JAN 2 9199E
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and
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OFFICE OF ARBI-IRA
OPSEU
(Grievance of Fridman)
Before:
Appearances
William Kaplan
Sole Arbitrator
For the Union: George Richards
Senior Grievance Officer, OPSEU
For the Employer: Michael Smyth
Genest Murray
Barristers & Solicitors
A hearing in this matter was held in Toronto on January 24, 1996.
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Introduction
This case concerns a March 30, 1995 grievance filed by Leonid Fridman, a
Building Operator employed since November 22, 1993 by the Art Gallery of
Ontario. The case proceeded to a hearing in Toronto, at which time
employer counsel raised three preliminary objections. Before disposing of
those objections, it was necessary to canvass the factual background of
this dispute, and a number of documents were introduced on consent.
Moreover, counsel for both parties supplemented this evidence with a
brief review of the facts,
The Facts
The essential facts underlying this case are not in dispute. 'For a number
of years, the employer contracted out certain after hour services. In the
fall of 1993, the decision was made to bring those services in house, and a
number of Building Operators, including the grievor, were hired. While the
grievor took the position that he was never informed, when he was hired,
that his duties and responsibilities included some "on-call" work, that
requirement was set out in the job description (which was assessed by a
joint union -management committee as part of its deliberations in setting
the appropriate pay rate). In any event, the grievor soon became aware
that his duties included on-call work.- It should be noted that one or two
Systems Technicians were also required to work on an on-call basis.
Their job description did not refer to this duty.
To make a long story short, the grievor raised an objection when first
advised that his compensation included these on-call responsibilities. A
grievance was filed toward the end of June 1994, and sometime thereafter
the grievor proposed a settlement. All of the grievor's proposed terms of
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settlement were accepted by the employer and implemented forthwith.
The matter, however, was not concluded for the grievor remain
unsatisfied and, on November 21, 1994, he wrote the employer and advised
it that as of December 1, 1994, he would no longer be accepting on-call
responsibility.
In response to this letter, and as part of its efforts to implement a
long-term negotiated settlement to the issue which, as noted above, also
involved employees in another classification, the parties met. First, they
agreed to an interim arrangement for on-call services. Next, they signed a
"Settlement" of the "On Call/Standby Allowance Issue." The grievor signed
this settlement, as did two other Building Operators, and. two System
Technicians. The settlement was also signed by two members of
management and two local union officers. It sets out a protocol for
on-call compensation. It does not provide for any retroactivity (and the
parties were agreed that as a result of the initial resolution and interim
arrangement described above that the retroactive period, if it existed,
would be between January and June 1993, and that the maximum possible
amount of retroactivity owing to the grievor would be approximately
$1200). Retroactivity was requested during the negotiations for this
settlement, but that request was rejected and the settlement was, as just
noted, signed without making any provision for retroactivity.
After this settlement was signed, the employer made an ex gratia payment
to one of the System Technicians. The employer's rationale was that this
individual had performed considerable on-call work in the January -June
1993 period and had not been compensated for it. In the employer's view,
the grievor and other Building Operators had been compensated as their
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job description included reference to on-call duties, and this reference
was considered by the joint job evaluation committee when it assigned a
pay grade to the Building Operator classification. In contrast, there was
no such reference to on-call assignments in the System Technician
position. One individual who had apparently performed a great deal of
on-call work had not, therefore, received any compensation, even
indirectly, for the performance of these on-call assignments. After the
grievor learned that one of the System Technicians had received some
retroactive compensation, he filed a grievance, and it was this grievance
that proceeded to a hearing.
Employer Objection
Employer counsel took the position that the grievance was inarbitrable for
three reasons: First, that it was barred as a result of the settlement
entered into by the parties. Second, that there has been no Collective
Agreement breach. And third, that the grievance was out of time. Each of
these objections was addressed in turn.
In the employer's view, the evidence amply established that the
settlement, which was voluntarily entered into by the employer, the
grievor, all other effected employees and the union, completely resolved
all outstanding matters in dispute. The subject matter of the settlement
was on-call pay, and as the grievance related to that very issue, the
employer took the position that it was inarbitrable having already been
resolved. Re Stelco and USW 5 L.A.C. (4th) 284 (Haefling) and Re Domtar
and International Woodworkers 28 L.A.C. (4th). 11 (Thorne) were cited in
support of this submission.
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Turning next to the Collective Agreement, counsel pointed out that it was
completely silent on the issue of on-call pay, and the union, in these
circumstances, could hardly allege a Collective Agreement breach.
Counsel observed that Article 12.06 defined a grievance as "any difference
arising out of the interpretation, application, administration, or alleged
violation of the Collective Agreement." However, in this case, there was
no Collective Agreement provision to be breached, and counsel suggested ,
given the limitations set out in Article 13.03, that I was without
jurisdiction to hear the case. Re McDonnell Douglas and CAW 27 L.A.C.
(4th) 294 (Foisy) and Re Seneca College and OPSEU 17 L.A.C. (2d) 113
(Brown) were cited in support of these submissions. Finally, counsel
argued that the grievance was out of time as it related, at.best, to events
that occurred many months before the grievance was actually filed.
Counsel concluded with the observation that the union was aware that it
had made a payment to the System Technician. If it had a problem with
that payment, it knew where to go to raise its concerns. But that problem,
if it could indeed even be described in this way, was quite different from
the grievor's efforts to relitigate the matter of on-call pay. Those
efforts, counsel argued, resulted in a final settlement, and as there was
no breach of any of the terms of that settlement, there was no issue to be
heard. Accordingly, and for all these reasons, counsel urged me to find the
grievance inarbitrable, and to issue a declaration to that effect.
Union Submissions
In the union's view, this case was all about fairness, and it simply was
not fair for the employer to give some ex gratia payment to a Systems
Technician, but fail to compensate the grievor. The fact of the matter, in
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the union's view, was that the grievor was not being compensated for his
on-call work, and management eventually acknowledged as much when it
provided for the grievor, and others in his job classification, to receive
on-call compensation. In these circumstances, it was hardly appropriate
for the employer to make a retroactive payment to one employee, but not
to another. indeed, not only was this payment inappropriate, it was, in the
union's view, discriminatory.
The fact that there was a settlement did not, counsel argued, preclude the
grievor from raising an issue in its aftermath. The grievor was not taking
issue with the settlement; what he was disputing was the failure of the
employer to provide him with retroactive pay. Counsel pointed out that it
was the employer, not the grievor, who opened this door for this claim as
it was the employer who, in the aftermath cf the settlement being
reached, made an ex gratia payment to a Systems Technician. No mention
of its intention of doing so had been made during the negotiations leading
to the settlement, and one of the results of the employer making this
payment was the creation of a factual and legal foundation for the
grievance at issue in this case. Accordingly, in these circumstances, the
presence of some settlement could not, in the union's view, serve as a
barrier to arbitration.
In addition, and contrary to the employer's assertions on point, counsel
argued that there was a Collective Agreement basis for assuming
jurisdiction in this case. Counsel referred to Article 7.01 of the
Collective Agreement; the provision in which .the employer commits itself
not to discriminate against employees because of their membership in the
union, and suggested that the evidence indicated that this provision had
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been breached. The employer had, counsel argued, acted in bad faith in its
failing to compensate the grievor along with. the System Technician. And
it was suggested that management's actions were motivated, in large
part, because of the fact that the grievor was a union activist who had
filed grievances with respect to this issue. Counsel also took the position
that the recognition clause had also been breached as a result of the
employer's direct dealing with the System Technician. Clearly, in the
union's view, there was a sufficient Collective Agreement basis for an
arbitrator to assume jurisdiction. Finally, counsel pointed out that there
was no dispute but that the grievor had filed his grievance after becoming
aware of the ex gratia payment, and counsel noted, in any event, that I had
the legislative jurisdiction to extend time limits. In that regard, counsel
observed that there was no suggestion of prejudice to the employer in
doing so, and ample good reason for such an extension assuming, for the
sake of argument, that 1 was persuaded that the grievance was out of
time.
Employer Reply
in reply, counsel noted that the matter of retroactivity was encompassed
in the settlement for it had been requested and denied. All that the
grievor was trying to do, in the employer's view, was advance yet another
claim for retroactive pay when that issue had been finally resolved.
Counsel reiterated his position that there was no Collective Agreement
breach, and pointed out that there was absolutely no evidence supporting
the union's assertion that the grievor had been discriminated against on a
prohibited ground. In the employer's view, there was no basis for an
arbitrator to take jurisdiction in this case, and counsel again asked me to
issue a declaration to that effect.
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Decision
Having carefully considered the evidence and arguments of the parties, I
have come to the conclusion that the employer's preliminary objections
should be upheld and this grievance dismissed. I reach this decision for
two reasons.
In my view, the evidence establishes that the subject matter of the,
grievance was resolved in negotiations. There has been no breach of the
settlement, and there is no basis, given the existence of this settlement,
and the undisputed fact that retroactivity was requested and denied during
the negotiations, to entertain a claim for retroactive compensation that
predates the settlement. For good and for ill, settlements between the
parties must be given effect - the case law is legion on point. Disputes
must eventually come to an end, as they often do when the parties
willingly enter into agreements putting them to rest. Those agreements,
and this settlement, must, absent extraordinary circumstances not
present in this case, be given effect.
However, this case can also be resolved on the basis that the facts do not
admit of even an arguable Collective Agreement breach. There is no
evidence of any discrimination against the grievor - for union activism or
for any other reason for that matter. The grievor was treated exactly the
same as the other Building Operators. He is the only Building Operator to
have grieved, and while the employer may have treated him differently
than the System Technician, the explanation for that difference in
treatment; namely, the fact that employees in the former category already
received, at least in part, compensation for their on-call work, while
employees in the later category did not, makes some sense.
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It must also be pointed out, in further support of my finding that this
grievance is inarbitrable, that the union cannot point to any provision of
the Collective Agreement and persuade me that there is an arguable case
that it has been breached. It is common ground between the parties that
there is no on-call provision. And, given the factual background set out
above, none of the other provisions referred to by the union are capable of
sustaining this grievance. While a union grievance taking issue with the
ex gratia payment to the System Technician would likely have been
arbitrable under the recognition provision (although I make no findings
whatsoever about its likelihood of success), that, of course, is an entirely
different matter, and one raising quite different issues than those before
me in this case. There is no need, given these two findings, to reach any
conclusions on the employer's timeliness objection, or the union's position
that this would be an appropriate case for the time periods to be extended.
Accordingly, and for the foregoing reasons, the grievance is dismissed.
DATED at Toronto this 25th day of January 1996.
William Kaplan, Sole Arbitrator