HomeMy WebLinkAboutUnion 06-10-04
IN THE MATTER OF AN ARBITRATION AND MEDIATION UNDER
SECTION 48 OF THE ONTARIO LABOUR RELATIONS ACT, 1995
BETWEEN
Ontario Public Service Employees Union
(?OPSEU? or "the Union?)
AND
Management and Training Corporation Canada ("the E mployer")
And in the matter of certain grievances filed by the union on its own behalf,
and on behalf of employe es who work at the ?Central No rth Correctional
Centre? (CNCC) in Penetanguishine, Ontario.
_____________________________________________________________
BEFORE: R.O. MacDowell (sole arbitrator and
mediator)
APPEARANCES:
For the Union: Peter Shklanka (counsel)
For the Employer: William Phelps (counsel)
A mediation/arbitration in respect of these matters was conducted in Barrie ,
Ontario, on October 3, 2006.
AWARD
I - Some Background
The Employer operates a correctional facility in Penetanguishene, Ontario,
known as the ?Central North Correctional Center? (CNCC). The Union is the bargaining
agent for many of the employees who work at the CNCC. At all material times the parties
were bound by a collective agreement, which prescribes the terms and cond itions of
employment for those employees.
There is nothing particularly novel about the CNCC collective agreement.
Like many collective agreements, it contains provisions respecting wages and working
conditions, employee d iscipline, work assignments, the use of "outsiders" to do
?bargaining unit work?, overtime pay, short-term an d long-term disability benefits,
clothing allowance, "call-in pay", and so on. The agreement also contains a "grievance
procedure", for employee complaints about alleged breaches of the collective agreement;
and if a dispute cannot be resolved i n the ?grievance procedure?, the matter may be
referred to "arbitration" for final and binding determination.
There is nothing unusual about any of these provisions. Indeed, some of
them are contemplated by section 48 of the Labour Relations Act. What is novel ? and
what poses some problems in this case, is (1) the ?nature? of the E mployer?s business
(which is to operate a correctional fac ility on behalf of the Ontario Government, which
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retains ownership and ultimate control of the institution); and (2) the unique vulnerability
of that business to the shifting policy preferences of the Government.
Most employers own or control the basic element s of the ir business: the
tools, equipment and facilities used in producing whatever goods or services the business
provides. But this Employer?s ?business? is to manage a facility that is owned ? and
ultimately controlled - by someone else. M oreover, its ability to remain ?in business? is
dependent entirely upon the periodic renewal of its management contract with the Ontario
Government. And, as it happens, the G overnment has chosen not to renew that
arrangement, but rather will assume direct respon sibility for operating the jail - with the
result that, within a few weeks, the Employer will depart the scene.
This is not the place to c anvas the legal effect of t his G overnment
takeover. But the practical effect is that after November 8, 2006, the Employer wi ll cease
carrying on business at this location; and (as I understand it) the Employer will then have
no ongoing business activity, (or assets), in Ontario.
In the result, what w e have here, is a situation that is similar to that of a
business that is being dissolved, or is ?going out of business? through bankruptcy. And as
a result, we also have some o f the same practical questions; namely: how does one
manage an orderly ?wind down? of the operation; and how does one resolve any
outstanding legal claims - especially when the usual mechanisms for doing so, may not
be available, or may not be workable, or may not yield a result that has any practical
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effect, because the underlying business is ?gone?. Likewise, if the Employer has no
presence in Ontario after November 8, 2006, it is not clear how the normal litigation
process would unfold, or the outcome could be enforced (in practical terms).
That is the cont ext in which the current a rbitration arises; and it was in
light of these practical and legal realities that the parties met, in Barrie, on October 3,
2006, in order to consider the resolution of a number of outstanding grievances.
II - What the grievances were ?about?
For present purposes, I do not think that it is necessary to review the
grievances in any detail. It suffices to say that in each case, the employee claims that the
Employer has breached some provision of the collective agreement; and in each case the
employer has advanced a defence to the allegation.
Sometimes the dispute is ?factual? (i.e. it is said that the fact s do not
support the employe e claim or Employer action, or there are competing versions of ?the
facts?). Sometimes the dis pute involves competing views about what t he collective
agreement ?means?, or how it should be applied. And in a number of instances, the
Employer asserts that even if there has been a ?technical? breach of the agreement, the
grievor is not entitled to the remedy that s/he seeks ? either because such remedy is not
warranted on the facts, or because the agreement itself provides for a remedy that is
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different fr om the one that the grievor is looking for, or because, in light of the changing
circumstances, the proposed remedy has simply become ?moot?.
The outstanding grievances were ve ry diverse; and in late 2005, a number
of them were scheduled for heari ng before me, as arbitrator. However, in th e shadow of
the changing circumstances mentioned above, I wa s invited by the par ties to attempt to
?mediate? these disputes, as well as a number of other matters of a similar nature that had
not yet been scheduled for arbitration.
The mix of disputes included: disciplinary issues; work assignment
complaints; wa ges/overtime claims; and miscellaneous disputes respecting benefits or
monetary claims of one kind or another; and in each case, I encouraged the parties to
approach the problem from a practical point of view - bearing in mind:
(1) that the shifting busi ness circumstances made many of the
union?s concerns ?academic?,
(2) that in a number of cases the provable facts, or the terms of
the agreement, or the establis hed case law did not obviously
support the position taken by one party or the other; and
(3) that it made no pra ctical sense to devote significant time and
resources to trying to construct a perfect ?legal answ er? for
relatively minor claims ? particularly when the organizational
landscape was about to change, dramatically, when the
Government took over the operation, and it was unclear how such
?perfect outcome? would then apply, or be enforced.
Accordingly, b oth parties entered into the mediation exercise in good
faith, and in a spirit of compromise, in order to bring practical ?closure? to as many of
these grievances as possible.
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Both parties acknowledged the weakness es of their positions in particular
cases, as well as the reality that a settlement would be different from the result that would
flow from being 100 % successful.
Both parties also recognized that it was highly unlikely that it would be
100 % successful, in each claim.
And both parties recognized that (even assuming that these matters could
be litigated in a traditional way, when the Employer was no longer on the scene), the
result might not be available for many months (if at all).
Hence the need for compromise and accommodation.
*
As a result of these sett lement efforts, the parties have developed a fairly
comprehensive settlement document, pertaining to virtually all of the outstanding claims.
The parties have also agreed that SOME of the settlement terms should be
incorporated into a formal a ward, NOW, while they continue to make efforts to finalize a
resolution of the other claims.
The relevant provisions of the settlement document read as follows:
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WHEREAS the Employer will no longer operate the CNCC after
November 8, 2006.
AND WHEREAS the parties desire to resolve all grievances
outstanding as of this date; Therefore the parties agree as follows:
1.
Arbitrator MacDowell will write an award in accordance with the
terms of Appendix A & B, attached hereto.
...
5. The Union hereby agrees on its own behalf and on behalf of its
members that all grievances not specifically dealt with in these M inutes
of Settlement are hereby settled and withdrawn. The Union further
agrees that there are no remaining outstanding grievances or
circumstances known to the Union which could form the basis of a
grievance as of the date of this Settlement.
6.
The dea dline for payment of monies due under this Settlement
shall be no later than October 19, 2006.
7.
Arbitrator MacDowell shall remain seized on any disputes arising
out of the interpretation or administration or fulfillment of this
settlement.
...
Appendix A
The Employer will pay the following amounts subject to required
deductions:
Mike Ferguson re # 2005-35 $160.00
Carol Chapman re # 2005-42 $106.00
Policy grievance re # 2006-51 nil
Christopher Hill re #2005-38 $104.00
Holly Baird re # 2006-20 nil (in consideration
of lack of particulars and removal of discipline, as requested in # 2004-
7 w/o prejudice or precedent)
Ed Simon re # 2006-21,22,23 $153.00
Martin Desroches re # 2006-24 $153.00
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Deanne Rybarczyk re # 2006-16, 17, 31
no voluntary childcare payment $55
Habner 2006-03 $10
Mayer 2006-04&05 $20
Rashleigh 2005-03 $150
Koene 2005-06 $150
The foregoing payments will be made in consideration of Union
agreement that no money damages will be paid for breach o f Article
14.01 (b) or the Letter of Understanding re overtime distribution or the
overtime distribution policy between the final disposition of these
grievances and November 9, 2006. The union agrees that there are no
other claims for violation of the for egoing provisions outstanding, and
will save the Employer harmless if same were to materialize.
Appendix B
Re: Group Grievance # 2006-55 Clothing Allowance.
A full inquiry into this claim would require a detailed audit of the
number of points claimed by e ach claimant, the deduction all the
claimed point car ry over from the previous year a nd the proof of actual
monetary it losses. It is further complicated by the fact that if clothing
were ordered to be provided, it would not likely arrive before the expiry
of the Employer?s contract to manage the Center. The award would
therefore be a little practical advantage to the Grievors. Employer will
pay $20 per claimant.
Having regard to the foregoing, the above-noted grievances are resolved in
accordance with the Minutes of Settlement.
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Nevertheless, in accordance with the agreement the parties I will remain
seized in the event that there is any difficulty in implementing these terms of settlement.
Finally, while it is perhaps unnecessary to do so, I wish to commend the
parties (and their counsel) fo r their efforts in bringing these matter s to a successful
conclusion, without the costs and uncertainties of litigation. For as those who practice in
the labour law field will know: the facts are seldom a s clear as either party would like
them to be, and there is often a significant gap between what one believes to be true an d
what one can prove to be true. And ?the law? can sometimes be equally difficult.
Accordingly, a settlement fashioned by the par ties themselves is almost
always preferable ? as the parties no doubt concluded in the instant case, where, as
noted, it is by no means clear whether the "normal litigation mechanism" would work
very well in any event.
For all of these reasons, (and in light of the success recorded above)
encourage the parties to continue their efforts to finalize the settlement of the rest of the
outstanding grievances.
Dated at Toronto, this 4th day of October 2006.
? R.O. MacDowell ?
_______________________________________
R.O. MacDowell (sole arbitrator and mediator).
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