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IN THE MATTER OF AN ARBITRATION
BETWEEN:
GEORGE BROWN COLLEGE
(Hereinafter referred to as the College)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF THE GRIEVANCE OF B. RICHMOND
(OPSEU FILE 99CO45)
BOARD OF ARBITRATION: Gail Brent
R. S1. Onge, College Nominee
S. Murray, Union Nominee
APPEARANCES:
FOR THE COLLEGE: E. C. Carla Zabek, counsel
David Ivany, Employee Relations
FOR THE UNION: Richard Blair, counsel
Brian Richmond, grievor
Damien Wiechula, Chief Steward
Hearing held at Toronto, Ontario on June 5, 2000.
DECISION
By agreement of the parties this decision will deal only with the preliminary objection
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concerning arbitrability which was raised by the College. The grievance (Ex. 1) is dated
December 18, 1998 and alleges that "Article 18.01 of the Collective Agreement has not been
complied with".
For the purpose of detennining the preliminary matter the parties agreed on the facts which
are set out below:
1. The grievor began Short Tenn Disability under Article 17 of the collective agreement
on March 12, 1998. At that time his salary was at Step 16 under the previous
collective agreement ($61,235.00 a year). Commencing March lih he received
100% of his salary while on Short Term Disability.
2. On September 8, 1998 the grievor wrote to the College (Ex. 2, part) and said that he
wanted to continue using his accumulated sick leave. In that same memo he also
expressed his expectation that he would receive the anticipated entitlements which
would apply upon the ratification of the new collective agreement. (Note: The tenn
of that collective agreement is September 1, 1996 to August 31, 2001 and it was
executed on November 12, 1998.)
3. On November 10, 1998 the College wrote to the grievor informing him that he had
been approved for Long Tenn Disability as of September 10, 1998 (Ex. 2, part). On
November 12, 1998 the grievor wrote the College infonning it that he wanted Long
Tenn Disability to commence on December 1, 1998 (Ex. 2, part).
4. By letter dated September 24, 1998 (Ex. 3) the grievor had been infonned by the
College that in accordance with the new collective agreement his salary was adjusted
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effective September 24, 1998 and that he was moved to Step 17 with a new salary of
$64,990.00. From then until December 1, 1998 while he was on Short Tenn
Disability the grievor received 100% of his Step 17 salary.
5. By letter dated December 1, 1998 (Ex. 4) the grievor was informed by the College
that the Long Term Disability insurer, Sunlife, had calculated his benefit as being
based on 60% of his Step 16 salary.
6. The grievor then filed the grievance (Ex. 1) alleging a breach of Article 18.01.
7. There is a policy of insurance between the Ontario Council of Regents, with respect
to and on behalf of Colleges of Applied Arts and Technology, and Sun Life Insurance
Company of Canada with an effective date of September 1, 1972 (Ex. 5). At page
5-1 of that policy there are the following definitions:
Amount of Insurance - the amount of insurance of an employee who becomes
entitled to the Monthly Indemnity is the following
percentage of his insured earnings at the date of
commencement of his elimination period: 60%
Elimination Period - The period commencing when the employee becomes totally
disabled. . .
8. The College sent the grievor the following letter dated April 9, 1999 (Ex. 6):
This is to advise that as a result of negotiations, it has been agreed to
implement an ad-hoc adjustment for Academic Staff Long Term Disability
claimants.
Your current deemed monthly salary for LTD purposes is $5,102.92. Your
current gross monthly LTD benefits is $3,061.75 (60% of your current
deemed monthly salary) less any offsets for Canada Pension Disability
benefits, rehabilitation earnings, etc.
As of September 1, 1998, your monthly LTD benefit is being adjusted as
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follows:
(Current Net Monthly LTD Benefit) (New Net Monthly Benefit)
From: $3,061.75 To: $3,153.60
This amount will continue to be paid to you on a monthly basis for as long as
you are eligible for L TD benefits under the Group Insurance contract.
Premiums for the Long Tenu Disability Plan are paid for by the employees.
Please be advised that the May 1999 L TD payment will include the ad hoc
adjustment for the month of May only. Retroactive adjustments will be
processed separately by May 15, 1999.
Should you have any questions, please do not hesitate to contact us.
9. The grievor returned to work in April, 2000.
The parties referred us to the following provisions of the collective agreement:
18.01 Employees shall pay the full premium of the present Long- Tenu Disability Plan, the
benefit level to be 60% of basic monthly earnings reduced by:
(i) any form of salary continuation from the employer or benefit from an
employer sponsored retirement or pension plan;
(ii) any basic disability benefits payable from government sponsored income
security programs (e.g. C/QPP, W.S..I., EJ., or similar programs);
but this amount shall not be reduced by amounts payable under:
(i) any privately sponsored group disability insurance plan;
(ii) any increase in benefit arising from the C/QPP as a result of an adjustment
in the Consumer Price Index.
APPENDIX IV
JOINT INSURANCE COMMITTEE
lC It is understood that the group insurance benefits to be provided to employees and the
cost sharing arrangements shall be as set out in the applicable Agreement and the matters for
consideration by this Committee shall be only as set out in these tenus of reference.
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7B It is understood that the Council of Regents at all times retains the right to select
whatever carrieres) to underwrite the group insurance planes) it may consider in the best
interest of the employees and Colleges and, in so doing, is under no obligation to select a
carriere s) that may be recommended by the Committee.
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LETTER OF UNDERSTANDING
August 28, 1998
Re: Long-Term Disability Plan
This will confmn that as soon as reasonably possible after ratification, the Council shall
secure an ad hoc adjustment for existing claimants to bring their benefit level to 60% of
current salary. This will be accomplished through an adjustment in the premiums or through
utilization of surplus and the change in the benefit level will be retroactive to September 1,
1998, notwithstanding Article 34.01.
The parties also referred us to the following authorities: Algonquin College and Ontario
Public Service Employees' Union (O'Farrell 84100), (1985) unreported (Brent); Mohawk College
and Ontario Public Service Employees' Union, (1985) unreported (Palmer); George Brown College
and Ontario Public Service Employees' Union, (1999) unreported (Shime); Re McDonnell
Douglas Canada Ltd. and Canadian Automobile Workers, Local 1967 (1992),25 LA.c.( 4th) 211
(Shime, Canada); Re British Columbia Rapid Transit Co. Ltd. and Office & Technical Employees
Union, Loc. 378 (1989), 6 LA.c.(4th) 310 (McColl, B.c.); Re Domglas Inc. and United Glass &
Ceramic Workers, Local 201 (1985), 22 LA.c.(3d) 355 (Beattie, Alta); Re GTE Automatic Electric
(Canada) Ltd. and International Electrical, Radio & Machine Workers, Local 526 (1976),
12 LA.c.(2d) 161 (Shime); and Re Thompson Products Employees Association and Thompson
Products (1970), 21 LA.c. 125 (P. C. Weiler).
It was the College's position, in brief, that there is no obligation under the collective
agreement for the College to provide Long Term Disability benefits, and therefore we lack
jurisdiction to hear the grievance. The Union's position, in summary, was that Article 18.01 clearly
specifies the level of benefit, entitlement and the College's obligation. It argued that the grievance
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clearly raises the question of whether the plan purchased by the Council of Regents with the
employees' money meets the obligation in the collective agreement.
In reaching our decision we have considered only the facts which were presented to us, the
collective agreement, the submissions of the parties and the authorities cited.
Three of the cases cited to us, Algonquin, Mohawk and George Brown, have dealt with the
jurisdiction of a board of arbitration to deal with Long Term Disability under the collective
agreement language before us. All three have concluded that the board of arbitration lacks
jurisdiction to detennine whether the plan mentioned in Article 18.01 is being complied with. The
most recent of those decisions, George Brown, involved this College, and at page 12 of that award
Arbitrator Shime wrote for the majority of the board:
. .. After considering the Collective Agreement, and particularly the context of the L TD
plan, and the comparison to the STD plan, it is our view, the parties intended the LTD plan
exist "outside" the Collective Agreement and that the employees have a direct relationship
to the L TD plan and to the insurance company. There is no intent that the employer be
responsible for the benefits under the LTD plan in the same manner as the STD plan. The
relationship between the insurance carrier and the employees is a direct one, with the
employees paying the premium directly, and, accordingly, there is no basis for the suggestion
that the employer has any liability for L TD benefits, nor does the language evince an intent
that the employees shall have access to the plan under the auspices of the Collective
Agreement. Indeed, a reading of the Agreement as a whole suggests otherwise.
We also note that the Mohawk decision involved a dispute about what salary the 60% was based
upon in circumstances virtually identical to the case before us. There the parties had also negotiated
a retroactive salary increase the effective date of which was prior to the commencement of the long
tenn disability period. Arbitrator Palmer, in finding that the board of arbitration lacked jurisdiction,
cited the Algonquin case with approval and stated, at page 6:
. . . any mention of the relevant percentage of "basic monthly earnings" is more in the nature
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of a general description than an obligation imposed on the College.
It was noted in both Mohawk and Algonquin that there were implied obligations on the part of the
College which would arise necessarily from Article 18.01.
The language considered in the collective agreements in those earlier college cases has not
changed in any material respect. The only thing new which is before us is the letter of understanding
negotiated with the current collective agreement.
The other cases cited to us all deal with substantially different collective agreements. It
would appear that in all or most of those cases cited the collective agreement was interpreted as
providing a specific benefit. With respect, we do not consider that the collective agreement before
us can be so interpreted.
That being said, though, as the earlier college cases cited to us have noted, there are certain
necessary implied obligations on the College that arise under Article 18.01. The most obvious one,
of course, is to remit premiums deducted from employees' salaries to the insurer. Another would
be to use the employees' money to purchase what the parties have referred to in the collective
agreement. If the College is using the money for some other purpose, for example to purchase a
different plan, then it would be in breach of the collective agreement and a remedy would lie under
the collective agreement. We would have jurisdiction to examine the contract of insurance only to
determine if in fact it was the plan referred to in the collective agreement. If it is, then there is no
breach of the collective agreement.
If the dispute is that the insurance company is misinterpreting the plan or misapplying it, then
that is a matter which is not arbitrable under the collective agreement because, as Arbitrator Shime
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put it in the earlier George Brown case at page 14:
Since that plan lies outside the Collective Agreement and since this board of arbitration is
restricted to dealing in the matters "inside" or under the aegis of the Collective Agreement,
we have no jurisdiction to deal with the issues raised.
The interpretation of the plan is a matter for another forum.
Weare therefore prepared to assume jurisdiction only to hear whether the plan for which
premiums are being remitted is the plan referred to in the collective agreement. We agree with the
earlier cases which have held that this collective agreement does not provide an obligation on the
part of the College to provide a specific benefit to the grievor. If the Union is alleging that the plan,
which has apparently been in effect since 1972, is not in fact the plan which is referred to in the
collective agreement, then we are prepared to hear that case. Otherwise, we find that we do not have
jurisdiction to proceed further on this grievance. We will await clarification from the Union, and
pending that no further dates will be set. Should no clarification be received within six months of
the date of this award, we will conclude that the Union is not challenging the fact that the premiums
are being remitted to purchase the plan referred to in the collective agreement and the grievance will
be dismissed as inarbitrable.
DATED AT LONDON, ONTARIO THIS 9TH DAY OF AUGUST, 2000.
Gail Brent
I concur
R. St. Onge, College Nominee
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I concur S. Murray, Union Nominee