Loading...
HomeMy WebLinkAboutUnion 07-12-19 ~ IN THE MATTER OF AN ARBITRATION BETWEEN: Algonquin College -and- Ontario Public Service Employees Union Local 415 Union grievance re: workload information Lorne Slotnick, Arbitrator Representing the Employer - J.D. Sharp Representing the Union - Val Patrick Hearing - Ottawa, November 28, 2007 2 PRELIMINARY AWARD This award deals with the employer's preliminary motion that I should not proceed to arbitrate the grievance because the issue the union wants determined is too remote from the matter that was originally grieved. The hearing on this preliminary motion was conducted on documentary evidence, with no witnesses called. Backf!round I was appointed by the parties as arbitrator in nine grievances, all of which were union grievances. All were dated December 19, 2006, and signed by the local union president. The appointment was under the expedited arbitration process in Section 33 of the collective agreement. (The collective agreement covers academic employees at all the Ontario colleges of applied arts and technology.) On the first hearing date, the parties were able to resolve eight of the nine grievances, and the union stated it wished to proceed with one of the grievances, but only with respect to the 2005-06 work assignments to one of its members, Diane Robert. 3 The grievance in question reads as follows: Statement of Grievance The College has failed to report accurately some workload assignments through part-time authorizations to employees in semester 06F. The College is in violation of the settlement, last revised January 30,2002, requiring such reporting. Remedy 1. The College will provide to the Union Local correct and complete information for all workload assignments. 2. The College will provide compensation to the Union Local for this violation. The January 30,2002, settlement referred to in the grievance elaborates on the college's obligations under the collective agreement (Article 27.12) to provide the union with regularly updated information on newly hired or terminated employees. The settlement includes a requirement for the college to provide at three specified times a year "a report of full-time professorslinstructors working on part-time authorizations." As noted above, the grievance was dated December 19,2006. The union and college met on January 8,2007, at Step 1 of the grievance procedure, and apparently discussed a number of issues arising from the grievance. At least some of those issues were specific to individual employees, and included questions about the Standard Workload Forms, known as SWFs, issued to Ms. Robert. The college's Step 1 response to the grievance, dated January 16, includes the following paragraph: The first issue raised by the Union was with respect to the manual SWF issued for Diane Robert. Upon review, the SWF issued for the period of May 1 through 4 June 21, 2006, contained teaching contact time, with a total of 36 teaching contact weeks for the academic year. The SWF issued for the subsequent period of July 24 through August 18, 2006, did not contain any teaching contact time, and therefore no additional teaching contact weeks were counted on the SWF for this period. The union responded on January 25 that the college's Step 1 response was unsatisfactory, saying "we appreciate the College's recognition of its errors and willingness to make corrections. We continue to require compensation for the inaccuracies reported to us." The grievance was referred to Step 2. After a Step 2 meeting in February, the college responded again to the grievance on March 2. This response contained exactly the same paragraph set out above pertaining to Ms. Robert, as well as responses to several other issues discussed. The union referred the grievance to arbitration, and it was scheduled to be heard on September 24, 2007, as part of the nine union grievances put before me. Under the expedited arbitration process (Article 33.04 A), the union was required to provide a written brief stating the facts as it saw them and its position. The union's brief, dated September 10, says in its entirety regarding this grievance: "The union alleges that the employer had failed to report some workload assignments through part-time authorizations. Updated information and, again, compensation to the Local Union are the remedies sought." The word "again" is used because this grievance is listed under two others where the union is also seeking compensation for alleged breaches of the employer's obligation to provide information. The union also advised counsel for the college that two grievance officers would be splitting responsibility for presenting the 5 nine grievances, which were being divided into two main groups - Overtime and Workload. The grievance now before me was among four in the Workload group. As noted above, eight of the nine grievances were resolved in discussions on the hearing date of September 24. At the end of that day, the union stated it wished to pursue an issue on the ninth grievance as it related to Ms. Robert. The union advised it is seeking overtime compensation for Ms. Robert for two periods: one, for the last four days ofthe 2005-06 academic year, and the other for the four weeks ended August 18,2006. Ms. Robert was a full-time employee during the relevant period. However, as the union explains the issue, the union did not have Ms. Robert's documentation at the time the grievance was filed; when the employer produced material to the union in response to the grievance, the union investigated further, and found that Ms. Robert's SWFs - which were provided by Ms. Robert herself -- gave rise, in its view, to an overtime claim. A rJ!Umen ts The college argues that, on its face, the grievance clearly has nothing to do with an overtime claim. The college also points out that the grievance was filed as a union grievance, whereas the collective agreement makes a clear distinction between an individual and a union grievance in Article 32.09, which reads as follows: 32.09 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee 6 would be personally entitled to grieve and the regular grievance procedure for personal or group grievances shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. In this case, the college argues, it is clear that what the union is seeking ought to have been pursued in an individual grievance by the employee affected. In addition, the employer points to its two responses during the grievance procedure, saying it is clear there was no contemplation of an overtime claim during those discussions, and it further notes that the union's brief, two weeks before the hearing date, contains no indication that overtime compensation was being sought for Ms. Robert. Rather, until the hearing day, the union had been seeking compensation for itself arising from the inaccuracies and lateness of the information the college was required to provide. The college notes that the union has never sought to amend the grievance. The employer also points to the union's grouping of the nine grievances. Four of them were labelled overtime grievances; however, the one currently before me was labelled as a workload grievance. Each of the four grievances labelled as overtime contains a reference to a section of the collective agreement governing overtime compensation, but the grievance before me does not. Those four "overtime" grievances each seek compensation both for individual members and for the union arising from the alleged breach of the collective agreement. These facts, the employer says, confirm that the union is a sophisticated party that knows how to frame a grievance and was perfectly 7 capable of alerting the employer when it was seeking overtime compensation for an individual. Yet there was no indication until the end of the first hearing date that the union was seeking to pursue an overtime claim in this grievance. The college referred me to the following cases, where arbitrators declined to hear matters that were different in substance from the grievance as originally filed: Re Canac Kitchens Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 1 072 (1996) 58 L.A.C. (4th) 222 (Abramsky); Re Cold Springs Farms Ltd. and Cold Springs Farms Employees' Association, Local 100 (2000) 88 L.A.C. (4th) 213 (Goodfellow); Re Ontario Hydro and Power Workers' Union (1996) 53 L.A.c. (4th) 163 (Burkett); Re Greater Sudbury Hydro Plus Inc. and Canadian Union of Public Employees, Local 4705 (2003) 121 L.A.c. (4th) 193 (Dissanayake); Re City of Toronto and International Brotherhood of Electrical Workers, Local 353 [2007] a.L.A.A. No. 461 (Petryshen); and Re Fanshawe College and Ontario Public Service Employees Union, Local 110 (2002) 113 L.A.C. (4th) 328 (Burkett). The union acknowledges that while neither the grievance nor the pre-hearing brief makes any mention of Ms. Robert or any overtime claim; however, the union argues that the claim for Mr. Robert's overtime flows naturally from the grievance. At the time the grievance was filed, the union had no precise knowledge of what was in the information it had not received. The overtime issue was revealed only after the employer provided documentation. 8 The union points to the college's reply to the grievance, saying the employer knew there was an issue relating to Ms. Robert. The reply makes it clear that the employer is not willing to pay for the extra work assigned, the union says, so it is no surprise to anyone that the union is now seeking overtime compensation, even though, as the union acknowledges, settlement discussions concerned compensation for the union rather than an overtime claim for Ms. Robert. The union also acknowledges that in those discussions there was no suggestion that the compensation being sought for the local would be distributed to any particular member. In any event, the union says, there is no prejudice to the employer in the circumstances. The union adds that the college's objection is merely to the remedy being sought, which should not in itself be a bar to the adjudication of the grievance on its merits. The union argues that while it seeks a remedy for an individual, the grievance at issue is legitimately a union grievance in that it challenges, in the words of Article 32.09, an "unreasonable standard that is patently in violation ofthe agreement and that adversely affects the rights of employees." The violation that is at issue is the employer's practice of assigning extra work and not paying overtime for it, the union says. The real question, the union argues, is what the parties understand to be in dispute. In this case, the union says, it is clear from the response to the grievance that both sides were aware that there was an issue relating to Ms. Robert. 9 The union referred me to the case of Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486 (1973) 57 D.L.R. (3d) 199 (Ont. Ct. of Appeal), and the Greater Sudbury Hydro Plus Inc. case cited above. Decision The starting point in cases of this sort is the Blouin Drywall decision, in which the Ontario Court of Appeal said that an arbitration board "is bound by the grievance before it but the grievance should be liberally construed so that the real complaint is dealt with and the appropriate remedy provided..." (at page 204). The court's declaration that grievances should not be won or lost on technicalities in the wording ofthe grievance has become a guiding principle in labour arbitration. However, as the cases relied on by the college show, there are circumstances where arbitrators have decided that the matter brought to the hearing has strayed so far from the substance of the grievance as filed that it should not proceed. In the Canac Kitchens case, the arbitrator refused to arbitrate a matter that was "substantively too different and distinct to be held to be encompassed in and flow naturally from the original grievances" (at page 231). In Cold Spring Farms, the arbitrator refused to hear an allegation that, in his words, constituted "an attempt by the union to expand the grievance to include both legal and factual issues that were not raised previously and that would, if allowed, support an independent breach of the collective agreement and provide an entirely separate basis for relief' (at page 222). 10 Similarly, in the Ontario Hydro case, the board majority said, "it is not open to a party to unilaterally expand a grievance to encompass a matter not grieved" (at page 170). And in Greater Sudbury Hydro Plus, the arbitrator said: "To include an issue through a 'liberal reading' [of the grievance], I must be able to conclude that the employer reasonably should have understood upon reading the grievance that the issue in question was part of the grievance" (at page 199). The Fanshawe College case contains the following relevant passage (at page 333-4): 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 raised at arbitration, including the remedy sought.. .. The acid test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised. Without restricting the authority of an arbitrator to fashion an appropriate remedy at the conclusion of a case, which mayor may not differ from the remedy sought, it is the statement of grievance read in conjunction with the remedy sought that defines the essential nature of the grievance and the issues that have been raised by the grievance, thereby allowing an arbitrator to decide if a grievance has been improperly expanded. In my view, the case before me is one where the union seeks to expand the issue into territory far from what would be understood by anyone reading the grievance. It is apparent from the documents that the employer would not have understood what the union was seeking until the first day of hearing. The grievance, on its face, seeks information that the college is required to provide under the collective agreement and a 2002 settlement of earlier grievances. It asks that the 11 union be compensated for the employer's failure to provide the information. But the union is no longer seeking any information, nor is it seeking compensation for itself. Instead, it seeks overtime compensation for an individual member, Diane Robert. I cannot agree with the union that the claim for overtime on behalf of Ms. Robert flows naturally from the grievance. In fact, it appears that the overtime claim may have little or nothing to do with the information actually sought in the grievance, since the claim is apparently based on the contents of Ms. Robert's SWFs - documents that are not directly referred to in the grievance and which Ms. Robert had seen and signed in April, 2006, and later provided to the union. But even assuming the information sought in the grievance and the investigation that followed led directly to the union's realization that there was an overtime claim for Ms. Robert, that overtime claim is, in my view, a separate matter. It is quite understandable that the union itself would file a grievance if the employer has not provided the information to which the union is entitled. However, unless amended or clarified through discussion, that grievance pertains only to the provision of the information, not to anything flowing from the contents of the information itself. If the information, once provided, reveals that the employer may have violated the collective agreement, one might expect a fresh grievance citing that violation, or at least some clarification from the union earlier in the process than at the first arbitration hearing date. Moreover, the union in this case seems to be using a union grievance to advance a matter that is not properly part of a union grievance, given the wording of Article 32.09 of the collective agreement, set out above. In my view, the union has not established that 12 Ms. Robert's situation would constitute an "unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees." While I agree that arbitrators must be careful not to impose technical requirements on grievances that serve to thwart the ability of unions and their members to enforce the collective agreement, the case before me is one where no one reading the grievance would understand that it concerns an overtime claim on behalf of one or more employees. The union correctly notes that the college's response to the grievance confirms that Ms. Robert's workload was an issue. However, a review of that response leads me to conclude that the employer was responding to a query by the union about why Ms. Robert's SWFs were the way they were. Nowhere in the documents is there any indication that the union was not satisfied with the response as it related to Ms. Robert. Instead, the union's response focuses on compensation for itself arising from the receipt of information that was late or erroneous. Had the union been concerned from the start that Ms. Robert was owed overtime, one might have expected either another grievance, an amendment to this grievance, or at least a response by the union that mentioned Ms. Robert's situation. Then, only two weeks before the hearing date, when the union is required to provide a brief outlining its position -- a step clearly designed so that the employer will have a clear idea what is at stake in the upcoming hearing -- the focus is still on provision of information and compensation for the union. No mention is made of an overtime claim for an individual until the hearing day itself. 13 The union argues that the real question is what the parties understood to be in dispute. I agree. But a review of all the documents can lead only to the conclusion that the employer understood - until the first day of hearing - that the union was upset about erroneous, incomplete or late information that had been provided, and was seeking compensation for itself because of the alleged violation. The documents reveal no indication by the union at any point prior to the scheduled hearing date that an overtime claim on behalf of an individual employee was at issue. In these circumstances, I conclude that the union's attempt to pursue overtime compensation for one of its members through this grievance is a substantial change in the matter as understood by both parties that cannot proceed when it is announced only on the first hearing date. For the reasons above, the employer's preliminary motion is granted. I find that the overtime claim on behalf of Ms. Robert cannot be pursued through the grievance that is before me. ~' "t'~ .......l Lome Slotnick, Arbitrator December 19, 2007