HomeMy WebLinkAboutMiddleton 07-03-07
IN THE MATTER OF AN ARBITRATION
BETWEEN
CENTENNIAL COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the "College")
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 559
(the "Union")
RE: GRIEVANCE OF BRUCE MIDDLETON
BOARD OF ARBITRATION:
Michel G. Picher
Michael Riddell
Ed Seymour
- Chair
- College Nominee
- Union Nominee
Appearing For The Union:
John L. Stout - Counsel
Larry Gold in - President
Larry Farr - Chief Steward
Bruce Middleton - Grievor
lolanda Lucciola - Student-at-Law
Appearing For The Company:
Timothy P. Liznick - Counsel
Nancy Fisher - Manager, Labour/Management Relations
Natacha Monkman - Student-at-Law
A hearing in this matter was held in Toronto on January 16, 2007.
AWARD
This is a grievance against layoff filed by Support Staff employee Bruce
Middleton. Prior to his notice of layoff Mr. Middleton was employed as a Senior
Computer Operator in the College's I.T. Department. The Union maintains that pursuant
to the provisions of the collective agreement Mr. Middleton should have been entitled to
bump into a number of identified positions, some twenty-six of which were specified on
his grievance form, with the incumbent employee being identified in each case.
The College maintains that this grievance was not properly flied to arbitration
and, by reason the mandatory provisions of the collective agreement, is not arbitrable.
In particular, it maintains that the Union failed to respect the requirements of article
18.6.2.1, as it failed to properly identify the four final positions for which the employee
claims to be qualified at the time it filed for arbitration. The College asserts that the
article in question contains mandatory and substantive provisions, the failure of which
would disqualify the grievance from being heard.
The facts pertinent to the grievance are not in dispute. The grievor was issued a
written notice of layoff dated March 30, 2006. He then had a period of fifteen business
days in which to file a grievance, which is to say before April 20, 2006. His grievance
was in fact filed on April 7, 2006 pursuant to article 18.6.2 of the collective agreement.
Within fourteen days of that filing the College did not convene a Step No.3 meeting, as
contemplated under the collective agreement, nor did it seek an extension of time limits.
2
In the result, as of April 28, 2006, there being no response to the grievance, the Union
was free to exercise its right to move to the next step, as contemplated under article
18.2.2 of the collective agreement. That next step was referral to arbitration. The
available period for that step, pursuant to article 18.6.3, was ten days, or until May 12,
2006. It does not appear disputed that on or about April 28, 2006,. the Union was
provided with PDF forms for the positions identified within the grievance form. In an
email communication of that date College representative Sam Berton raised with the
Union's representative the fact that at least one of the identified positions named in the
grievance form was in a higher classification/pay band than the grievor's own position.
When it filed for arbitration on May 1, 2006 the Union failed to identify the four
positions which it claimed could be performed by Mr. Middleton. As noted above, fully
twenty-six positions and incumbent employees were identified on the grievance form.
The rights and obligations of the parties in respect of layoff grievances are
expressly articulated within article 18.6.2.1 of the collective agreement. It reads as
follows:
18.6.2.1 Layoff Grievance
An employee claiming improper application of Article 15.4.3 shall state in the
grievance the position(s) and name of incumbent, if any, to which the employee
claims entitlement.
The College will provide the current PDFs of the positions, named in the
grievance, to the employee within three (3) days after the filing of the grievance.
If the grievance is not resolved, then the written referral to arbitration shall
specify, from the position(s) originally designated, no more than four (4)
positions which shall thereafter be the subject matter of the grievance and
the arbitration. (emphasis added)
3
In an email dated May 10, 2006 Union Chief Steward Larry Farf acknowledged
that the grievance was filed to arbitration "... without the four identified positions as
stipulated in the Collective Agreement." Mr. Farr notes that in fact the PDFs for the
positions identified were delivered to him on May 9, 2006 and that. he had delivered
them to Mr. Middleton on the 10th of May, 2006. In his communication he cites the fact
that the College"... failed to provide the PDFs to the employees within three days of the
date they filed individual layoff grievances, and ... the College failed to hold a Step 3
meeting or respond in any way to the grievances within time lines set out in the
collective agreement ...".
The record also discloses that on April 7, 2006 the Union filed a separate
grievance against the failure of the College to provide the necessary PDFs in a timely
fashion, and alleging that by reason of the violation of the collective agreement Mr.
Middleton should be provided with a "proper notice of reassignment" and that his layoff
notice be rescinded.
The position of the College is relatively simple. It asserts that the obligation of the
Union to identify four positions for which the Qrievor is qualified, as specified in article
18.6.2.1 of the collective agreement, at the time of the referral to arbitration is a
mandatory substantive requirement, the failure of which renders the grievance non-
arbitrable. In support of that proposition its counsel puts forward a number of prior
awards dealing with a similar provision within the bargaining unit of the academic
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employees, as well as a prior decision of Arbitrator Thorne in respect of article 18.6.2.1
within the instant collective agreement. He submits that those awards are categorical in
supporting the conclusion that the failure to identify the four positions effectively
disqualifies the grievance from being heard at arbitration. Counsel notes that the Union
did not identify the four positions, and the incumbents in those positions, within the I.T.
Department which Mr. Middleton is capable of performing until January 12, 2007, some
four days before the arbitration hearing itself. That notification was contained in a letter
from counsel for the Union addressed to counsel for the College.
Counsel for the College draws to the attention of the board of arbitration the
award of the board chaired by Arbitrator I.G. Thorne in a grievance between Mohawk
College and OPSEU, a decision dated March 4, 2003. That grievance, which
concerned the support staff of the bargaining unit, dealt four square with the issue which
is before us. That case concerned the layoff of an employee who worked in the
College's Early Childhood Education program. The College objected to the arbitrability
of the grievance under then article 18.7.2.1, by reason, among other things, of the fact
that the grievor had failed to specify four positions from amongst those identified in her
grievance. The majority of the board considered a number of prior awards dealing with
similar language in the academic collective agreement, including the following: Re St.
lawrence College and Ontario Public Service Employees Union, an unreported
award dated September 11, 1986 (Shime); Re Fanshawe College and Ontario Public
Service Employees Union, an unreported award dated June 17, 1987 (Weatherill); Re
Humber College and Ontario Public Service Employees Union, an unreported
5
award dated May 21, 1997 (Shime); Re Canadore College and Ontario Public
Service Employees Union, an unreported award dated December 12, 1996
(MacDowell); Re Fanshawe College and Ontario Public Service Employees Union,
an unreported award dated August 12, 1997 (Simmons); Re Seneca College of
Applied Arts and Technology and Ontario Public Service Employees Union, an
unreported award dated February 6, 1998 (Brown).
Arbitrator Thorne, for the majority, compared the language of the collective
agreement governing academic employees which is as follows:
27.08 A An employee claiming improper lay-off, contrary to the provisions of this
Agreement, shall state in the grievance the positions occupied by full-time and
non-full-time employees whom the employee claims entitlement to displace. The
time limit referred to in 32.02 for presenting complaints shall apply from the date
written notice of lay-off is given to the employee.
27.08 B If the grievance is processed through Step 2, the written. referral to
arbitration in 32.03 shall specify, from the positions originally designated in
27.07A, two full-time positions, or positions occupied by two or more
partial-load or part-time employees (the sum of those duties will form one
full-time position), who shall thereafter be the subject matter of the
grievance and arbitration. The grievor shall be entitled to arbitrate the
grievance thereafter under only one of (i), (ii), (iii), (iv), (v), (vi), (vii) or (viii) of
27.06.
(emphasis added)
The majority of the board in Mohawk College found the grievance not to be
arbitrable. In that regard Arbitrator Thorne reasoned and concluded, in part, as follows:
This decision deals with the College's objection to our jurisdiction based on the
operation of Article 18.7.2.1. The parties have referred us to a number of awards
which have interpreted Article 27.08 and its predecessors in the academic
collective agreement, language which the College argues is virtually identical in
wording to Article 18.7.2.1 in the support agreement under which the grievance
6
has arisen. The support agreement, it is argued, should therefore be interpreted
in the same way. Leaving aside for a moment the question of whether the
language in the support agreement is in fact identical in its effect, we shall first
touch on the effect which the article in the academic agreement has been found
to have.
One of the determinations which boards of arbitration have made about that
article is that it is mandatory in nature. That conclusion was reached in Re
Canadore College (MacDowell, supra). The failure of the grievor in that case to
state in his grievance the positions occupied by employees who he claimed
entitlement to displace (as the collective agreement at that time required)
rendered the grievance "... fundamentally defective and there ... not arbitrable"
(p. 10). None of the decisions mentioned to us has reached any conclusion that
the language in this academic agreement in its various forms over renewals of
the agreement is other than mandatory.
Other awards have focused on the question of whether the article is a
substantive or a procedural provision. The decision in Re Fanshawe College
(Weatherill, supra) found that the requirement to state in the grievance the
names of the employees against whom a right of displacement was claimed (as
was the case in the agreement at that time) was "... obviously a substantial, not
merely a formal one" (p. 4). That conclusion has been reached by other boards,
e.g., in Re Seneca College (H.D. Brown, supra) which found that the provision
was "substantial and mandatory and the failure to meet those tenns as a matter
of substance is fatal to a grievance" (p. 21). In Seneca that view of the provision
was expressly contrary to that in Re George Brown College (Burkett, supra) in
which the provision had been found to be procedural in character.
These distinctions are important for the outcome of the case before us. If the
provision is a mandatory one - about which there seems no doubt - we have no
power to relieve against a failure to comply with it (and the Union is not arguing
that we do have such a power). If the provision is a procedural one, even though
mandatory, it can be waived by the words or conduct of the College. Thus, if the
article simply sets up a procedure, waiver is a possibility and if it is established
the grievance may proceed. If the provision is a substantive one, however, it is
generally understood that its requirement may not be waived. If the provision
establishes or protects rights of employees under the agreement, therefore, it
may not be waived. In this case, of course, the Union maintains that the provision
before us is a procedural one which was waived by the College.
We now turn to the wording of Article 18.7.2.1. The article stipulates what an
employee claiming improper application of Article 15.4.3 must state in his
grievance. Article 15.4.3 lays out a bumping procedure: an employee identified
for layoff must be assigned to the first position determined in accordance with the
sequence specified in the article. A sequence is then spelled out in which types
of positions are described with reference to classification, the ability of the
employee to perform the duties of a position, pay band level and seniority.
7
Against this background the requirement in Article 18.7.2.1 for a grievor to state
in the grievance the positions and name of incumbent, to which the employee
claims entitlement can be seen as procedural: identifying positions and
incumbents provides a means of carrying out the requirements of Article 15.4.3
by pinpointing the positions at issue and their place in the sequence. But there is
more to it than that. It may be that setting out positions and names in the
grievance may have only procedural implications if the grievance goes no further
than that: the identification of the positions and names by the grievor may assist
in narrowing the issues so that the matter may be resolved. However if the matter
goes on to a referral to arbitration the requirement to specify no more than four
positions has a significant impact: once that is done the positions specified "...
shall thereafter be the subject matter of the grievance and the arbitration". The
effect appears to establish the jurisdiction of the board of arbitration since only
the positions named are to be the subject matter of the arbitration. It seems to us
that this view of Article 18.7.2.1 arises readily enough from the wording of the
article that its position in the grievance procedure in the collective agreement,
rather than in some other part of the agreement, should not detract from its
meaning.
So far as this issue is concerned, there are no differences of real substance
between the article in the support agreement and the corresponding article in the
academic agreement appropriate to take account of the awards which have
interpreted Article 27.08 and its predecessors in the academic agreement.
Boards of arbitration which have considered directly the effect of Article 27.08 in
the academic agreement have fairly consistently come to the view that a failure
to identify names or positions is fatal to a grievance. Arbitrator MacDowell in
Canadore College noted that in the face of such interpretations the language in
the agreement had been maintained without material change over several rounds
of bargaining. Arbitrator Simmons in Fanshawe College considered that the
view in Canadore was dispositive of the issue. Arbitrator Brown in Seneca found
that the Canadore award and earlier decisions settled the issue, and also found
that the article contained substantive requirements and that a failure to comply
was fatal to the grievance. That board was of the view that "... the doctrine of
waiver as described and applied in the George Brown award, does not apply to
waive substantial and mandatory requirements of the collective agreement". (p.
21)
The parties have the benefit of a body of interpretation which supports the view
that the language in issue is substantive and goes to the heart of the jurisdiction
of a board of arbitration. Our own reading of Article 18.7.2.1 is that it readily
supports that interpretation. The requirement to name positions being
substantive, non-compliance with it cannot be waived.
8
On the foregoing basis the majority in the Mohawk case found that "... the failure to
identify any positions in the referral to arbitration left this board without a jurisdictional
foundation by establishing the subject matter of the arbitration."
Counsel for the College stresses that a long-standing and consistent line of
jurisprudence, spanning both the academic and the support staff collective agreements,
culminating in the decision of the majority in Mohawk College, confirms that the failure
to identify the four positions being contested, at the point of referral to arbitration, must
be viewed as fatal to the grievance.
Counsel for the Union takes a substantially different view. He stresses that the
Colleges Collective Bargaining Act, R.S.O. 1990, c. C.5, contemplates, in section 46,
that grievances be resolved by arbitration, which he characterizes as an essentially
informal process. He also notes section 84(2) of the Act which provides that
proceedings under the Act are not to be invalidated"... by reason of any defect of form
or any technical irregularity...".
As a first submission counsel argues that the College has effectively waived any
objection to the arbitrability of the grievance. In that regard its counsel stresses that
there was never any objection made by the College to the Union at the time the Union
failed to identify the four positions when the grievance was forwarded to arbitration.
9
Counsel further argues that the language in the collective agreement governing
support staff, as found in article 18.6.2.1 of the collective agreement, is worded
differently from the similar provision found within the collective agreement governing the
academic bargaining unit. He submits that a close examination of the language should
lead to the conclusion that the intention of the parties was that the requirements of the
article are procedural and directory, and not mandatory or substantive. Indeed, he
questions the correctness of the jurisprudence relied upon by the College with respect
to the language in the academic collective agreement. In that regard he cites the
decision of a board of arbitration chaired by Arbitrator Kevin M. Burkett in the George
Brown College of Applied Arts and Technology and Ontario Public Service
Employees Union, an award dated December 29, 1995. The board there found that
articles 27.08A and 27.08B of the academic collective agreement are not substantive
provisions, but rather are directory and that, on the facts before it, there had been a
waiver of those provisions by the College. While counsel acknowledges that the other
awards cited above, both preceding and following the Burkett award, came to an
opposite conclusion, he stresses that the principles of stare decisis do not apply and
that the issue is to be considered afresh, on its merits, by this Board.
Counsel also stresses the distinction between the language of the support staff
provision before us in article 18.6.2.1, and that to be found in the academic bargaining
unit. He notes that in the case at hand the College is under a contractual obligation to
provide current PDFs for the positions named in the grievance, something which the
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College did not do in a timely fashion. Counsel further notes that it is the employee, and
not the Union, who receives the PDFs provided by the College.
In support of his submissions, counsel refers the Board to a number of prior
authorities. dealing with issues suoh as waiver, mere technical irregularities, the impact
of procedural errors or failings by an employer in handling a grievance, the distinction
between substantive and procedural or directory provisions within a oollective
agreement and, finally, the duty of boards of arbitration not to be unduly technical. The
following authorities were cited: Re Oil, Chemical & Atomic Workers, Local 9..593
and British American Oil Co. Ltd., (1996), 16 L.A.C. 276 (Stewart); Re Municipality
of Metropolitan Toronto and Toronto Civic Employees' Union, Local 43 et al.,
(1975), 8 OR (2d) 499 (C.A.); Re Dominion Consolidated Truck Lines Ltd. and
Teamsters, Chauffeurs, Warehouseman and Helpers of America, Local Union 141
(1975), 60 DLR (3d) 37 (Ont. Div. Ct.); Re Fabricated Metals and Stampings Ltd. and
United Automobile Workers, Local 222 (1975), 9 L.A.C. (2d) 161 (Beatty); Re Blouin
Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of
America, Local 2486 (1975), 8 OR (2d) 103 (C.A.); Re Cambridge Towel Corp. and
Amalgamated Clothing and Textile Workers Union et al. (1988), 66 OR (2d) 793
(Div. Ct.); Re Bilt..Rite Upholstering Co. and USWA (1990), 10 L.A.C. (4th) 342
(Springate); Re Brewers' Warehousing Co. and United Brewers' Warehousing
Workers Provincial Board (1992), 25 L.A.C. (4th) 12 (Collier); Re McMaster
University and SEIU Local 532 (1993),31 L.A.C. (4th) 257 (Brunner); Re The George
Brown College of Applied Arts and Technology and Ontario Public Service
11
Employees Union, unreported decision of K. Burkett dated December 1995; Re
Windsor Raceway Inc. and HERE, Loc. 75 (2002),109 L.A.C. (4th) 76 (Springate).
For a number of reasons we have substantial difficulty with the submissions of
the Union. Firstly, on the facts, it is difficult to fault the College for the Union's failure to
identify the four positions, as required. The record confirms that in fact the PDFs which
were to be provided by the College were received by the Union in late April and early
May, well in advance of the arbitration filing deadline of May 12, 2006. There was, in
those circumstances, no attempt on the part of the Union to obtain an extension of time
limits, as it was entitled to request under the terms of the collective agreement. For
reasons it best appreciates, notwithstanding the failure to identify the four positions it
was claiming, the Union filed to arbitration on May 1 st, 2006, leaving the identification of
the four specific positions until only a few days before the actual arbitration.
As noted in the award of the majority of the board chaired by Arbitrator Thorne in
Mohawk College, above, the principle of waiver cannot be applied with respect to the
operation of a substantive provision of a collective agreement. The first and most
important issue to be resolved, therefore, is whether we are satisfied that article
18.6.2.1 of the collective agreement does impose a substantive obligation upon the
Union to identify the four positions at the time the referral is made to arbitration.
Leaving aside the jurisprudence, if this were a matter of first impression, we
would find it difficult to avoid the conclusion arrived at by Arbitrator Thorne, namely that
12
the impact of article 18.6.2.1 is essentially to define the parameters of the grievance
and, to that extent, the jurisdiction of the board of arbitration. By the language of the
provision itself it is those four positions"... which shall thereafter be the subject matter
of the grievance and the arbitration."
From a purposive point of view the provision is readily understandable. The
College should know, clearly and well in advance, the precise positions which will be the
subject of the arbitration of a layoff grievance. While it was obviously open to the parties
to use directory language with respect to the obligation to identify positions, in a turn of
phrase which is unusual within the provisions of a collective agreement, they opted for
what we must recognize as essentially jurisdictional language. For reasons they best
appreciate they made the identifying of the four positions the governing factor in "the
subject matter of the grievance and the arbitration". With respect, given the language
the parties adopted, we do not believe that the failure to identify the positions at the time
of the referral to arbitration can be fairly characterized as a merely technical deficiency
or a minor oversight which can be subsequently cured. Very simply, having regard to
the language used by the parties, without a proper referral to arbitration there cannot be
any arbitration, as the subject matter of the arbitration itself would remain undefined.
Apart from the foregoing analysis, we are satisfied that counsel for the College is
correct in his submission that the jurisprudence gives overwhelming support to the
College's position. In the academic bargaining unit, since 1986, the clear
preponderance of arbitration awards has held that the requirement to identify the
13
positions which will be the subject of arbitration is a substantive requirement which
cannot be waived, the failure of which deprives a board of arbitration of any jurisdiction
to proceed. The application of that principle in a number of grievances since the award
of Arbitrator Burkett in the George Brown College case in 1995, through the renewal of
a number of collective agreements, compels this Board to the conclusion that the
parties must be taken to have understood and accepted the mandatory nature of the
parallel provisions found in the collective agreement governing academic staff.
The same can be said of the support staff. The award of the board of arbitration
chaired by Arbitrator Thorne issued in March of 2003, well in advance of the renewal of
the collective agreement from which we draw our jurisdiction. In other words, when the
parties bargained and renewed the language of article 18.6.2.1., to take effect
September 1, 2005, they must be taken to have been aware of the interpretation of that
article rendered in Mohawk College by Arbitrator Thorne, and to have accepted that
award for the purposes of the ongoing application of article 18.6.2.1. If it were
otherwise, there would be no finality in labour disputes, and well settled interpretations
could simply be challenged over and over again, until the challenging party found a
sympathetic board of arbitration. That is not the nature of the grievance and arbitration
process contemplated under the Colleges Collective Bargaining Act.
To be sure, it would be open to this Board to come to a conclusion different from
the board of arbitration in Mohawk College. On the basis of well settled principles,
however, we should only come to so extraordinary a conclusion if we were compelled to
14
find that the reasoning of a prior board of arbitration is entirely unsupportable and
patently wrong (see, e.g., TransAlta Utilities Corp. (2005), 139 L.A.C. (4th) 192 (B.E.
Beattie); College Compensation and Appointments Canada Council (2004), 135
L.A.C. (4th) 29 (Whitaker); Toronto Police Services Board (2001), 96 L.A.C. (4th) 431
(Marcotte); Ford Electronics Manufacturing Corp~ (2000), 86 L.A.C. (4th) 409
(Knopf); Toronto (City) (1999), 81 L.A.C. (4th) 315 (Davie); Canada Post Corp.
(1993), 38 L.A.C. (4th) 333 (Kelleher); CN/CP Telecommunications (1985), 18 L.A.C.
(3d) 78 (M.G. Picher).
We are not satisfied that the decision of the majority in Mohawk College is
patently wrong. On the contrary, we believe it to be correct. Most importantly, as noted
above, there is reason to believe that in renewing their collective agreement without
change to the provisions of article 18.6.2.1, the parties accepted the interpretation of the
majority in Mohawk College as being correct. We do not see this as a situation in which
we should interfere with the interpretation of the prior board, a conclusion which we find
well reinforced by the preponderant jurisprudence which has governed in the parallel
provision found within the collective agreement governing academic staff. In
approaching this issue we are cognizant of the need for stability and predictability in the
ongoing interpretation and administration of the collective agreement. Any change in or
deviation from the interpretation of article 18.6.2.1 of the collective agreement in
Mohawk College is a matter for negotiation, not arbitration.
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For the foregoing reasons the preliminary objection of the College must be
allowed. The Board finds and declares that the grievance is not arbitrable and must be
dismissed.
Dated at Ottawa this 7th day of March, 2007.
I concur
,:' MICHEL G. PICHER
CHAIRMAN
"Michael Riddell"
J concur
MICHAEL RIDDELL
COLLEGE NOMINEE
"Ed Seymour"
ED SEYMOUR
UNION NOMINEE