HomeMy WebLinkAboutChartrand 21-12-20
IN THE MATTER OF AN ARBITRATION UNDER
THE COLLEGES COLLECTIVE BARGAINING ACT
BETWEEN:
CAMBRIAN COLLEGE
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
LOCALL 655 (Academic)
(“the Union”)
GRIEVANCE OF LYNN CHARTRAND
2021-0655-0003
AWARD
ARBITRATOR: BARRY STEPHENS
FOR THE EMPLOYER: EMPLOYER COUNSEL: TIMOTHY P. LIZNICK Hicks Morley Hamilton Stewart Storie
FOR THE ASSOCIATION: UNION COUNSEL: LESLEY GILCHRIST, Grievance Officer, OPSEU
HEARINGS HELD BY VIDEOCONFERENCE
ON OCTOBER 5, 2021
DECISION ISSUED
DECEMBER 20, 2021
A W A R D
Introduction
[1] This case involves an allegation that the grievor was improperly laid off and not
permitted to exercise displacement rights. At the outset of the hearing the employer
raised a preliminary objection based on Article 27.08 of the collective agreement, and this
decision deals solely with the preliminary objection.
Evidence
[2] There was little evidence required to argue the preliminary motion. The
preliminary objection turned on the interpretation of Article 27.08, which sets out
procedure related to layoff grievances, 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 32.01 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 the Grievance Meeting, the
written referral to arbitration in 32.03 A shall specify, from the positions originally
designated in27.08 A, two full-time positions, or positions occupied by two or more
partial-load or part-time employees (the sum of whose duties will form one full-time
position), which 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 A.
[3] The employer objected to the grievance because in the referral to arbitration the
union failed to specify the two full-time positions that would form the “subject matter”
for the grievance at arbitration. The employer asserted the failure to stipulate the two
positions rendered the grievance a nullity and that this Board did not have jurisdiction to
consider the matter other than to dismiss the grievance without inquiring into the merits.
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The union stipulated the two full-time positions at the outset of the hearing on the
preliminary objection.
Employer Submissions
[4] The employer started from the proposition that the language in Article 27.08 B
that required the union to identify the targeted positions used the word “shall” and was
mandatory. The fact that the requirement was a jurisdictional matter arose from the
phrase: “…which shall thereafter be the subject matter of the grievance and arbitration.”
The failure of the union to designate the two positions in dispute meant that there was
no “subject matter” and therefore no grievance to be arbitrated. The referral to
arbitration in this case stated simply:
“This matter has been referred to arbitration.”
This was clearly insufficient to meet the requirements of the collective agreement
because no ‘target’ jobs were identified.
[5] The employer argued that the failure to designate two target positions has been
found to be a fundamental jurisdictional issue in the jurisprudence under this collective
agreement and the support collective agreement. Both the academic and support
collective agreements are centrally negotiated between OPSEU and the colleges, and
both include language requiring the designation of ‘target’ positions at the time of referral
to arbitration of a layoff grievance.
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[6] The employer acknowledged that there are some exceptions to the arbitral
consensus on this issue, especially the 1995 decision of Arbitrator Burkett in George
Brown. That case was distinguishable on its facts, the employer asserted, and most
decisions since have declined to follow Arbitrator Burkett’s finding that the doctrine of
waiver could be applied to a question of the arbitrator’s jurisdiction. The employer
submitted almost all cases decided after George Brown held the requirement of Article
27.08 B to be a mandatory, substantial, and jurisdictional requirement that could not be
waived. The prior decisions on this language, taken together, stood for the proposition
that the two jobs stipulated in Article 27.08 were defined as the “subject matter” of the
dispute between the parties. Therefore, where the two jobs were not specified as
required, there was no “subject matter” to the dispute, and the dispute becomes a nullity.
An arbitrator cannot have jurisdiction to rule on a dispute for which there is no subject
matter and is a nullity, and the grievance must therefore be dismissed.
[7] The employer asserted that the existing jurisprudence between the parties should
be followed unless it was “manifestly wrong”, which it was not. The employer argued
that the union was aware of the conclusive nature of the long-standing jurisprudence and
had not bargained any changes to the language that impacted the findings of previous
arbitrators.
[8] In the alternative, the employer submitted that, even if the law permitted the
waiver of the Article 27.08 B requirement, there was no “fresh step” between the union’s
referral of the matter to arbitration and the start of the arbitration hearing. Silence
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without some fresh step cannot constitute waiver, and therefore there was no basis for a
finding of waiver, even if it were applicable.
[9] For these reasons, the employer argued the grievance should be dismissed
without a hearing on the merits. The employer relied on the following authorities:
Canadore College, (Unreported, December 12, 1996, MacDowell); Humber College,
(Unreported, May 21, 1997, Shime); Seneca College, (Unreported, February 6, 1998: H.D.
Brown); Sault College, (Unreported, March 30, 2004: H.D. Brown); Sheridan College,
(Unreported, May 14, 2014: Howe); Mohawk College, (Unreported, March 4, 2003,
Thorne); Centennial College, (Unreported, March 7, 2007, M.G. Picher); Canadore College,
(Unreported, March 16, 2012, Bendel).
Union Submissions
[10] The union started from the observation that the employer’s objection was not
merely an academic exercise but raised the important issue of the grievor’s ongoing
employment. The grievor had been subject to layoff and had identified four jobs as
potential targets for continued employment. The union’s intent was clearly to comply
with Article 27.08 B, but unfortunately, the number of jobs was not reduced to two at the
time of referral to arbitration. There was no prejudice to the employer nor was there any
surprise. The identification of the four positions at the outset was sufficient to alert the
employer as to the nature of the claim being made by the grievor.
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[11] The union agreed that the identification of the two jobs was a ‘mandatory’ step
but argued that it was also ‘procedural’ and could be waived. When one considered the
step, its procedural nature was obvious. The purpose of the requirement was to allow
the employer to properly prepare for arbitration and to prevent a hearing in which many
multiple positions become the subject of evidence. These can only be characterized as
procedural objectives. The fact that the requirement was procedural did not mean it was
unimportant. On the contrary, the employer had the right to enforce and rely upon the
procedural requirement, but only in the absence of waiver. The question becomes
whether the employer waived the procedural right in this case.
[12] There was no challenge to the four identified positions, and no reference to Article
27.08 B at the time of the referral to arbitration or at the time at which the grievance was
scheduled for arbitration. The employer’s first assertion of its intent to rely on the Article
27.08 procedure did not materialize until ten days prior to the arbitration hearing, in a
letter from employer counsel. The employer’s prolonged silence lasted almost five
months from the union’s original referral to arbitration, which was communicated on
April 30, 2021. During the period of silence on the issue the matter was referred to
scheduling and set down for a hearing date, which was a “fresh step” that should have
triggered notice from the employer.
[13] The union submitted that waiver was an equitable doctrine. The context of the
equities in this case was that the employer’s failure to raise the issue meant the employer
would be required to prepare for arbitration by refocusing on the two jobs identified at
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the outset of the hearing. If the waiver was not upheld, the consequence for the grievor
was that she was out of work without having had the chance to put the facts to this Board
for adjudication. It was true that the union was expected to be aware of its obligations,
but the employer was also expected to be aware of its rights, and to assert those rights in
a timely manner. The employer allowed the hearing to proceed without raising the
objection, and the hearing should proceed on that basis.
[14] The union argued that the caselaw relevant to this dispute was “mixed” as to
whether Article 27.08 B should be enforced as a procedural or a jurisdictional
requirement. The union pointed out that Article 27.08 B is tied to Article 32.03, because
the identification of the two target positions was required at the time of referral to
arbitration under Article 32.03 A. It was significant that Article 32 was titled “Arbitration
Procedure.” Therefore, the required step under Article 27.08 B should also be considered
a procedural step. It was also relevant that Article 27.07 set out the rights of employees
to displace a junior employee in the event of a layoff. Article 27.08 A and B did not create
any substantive rights, but only described how that right was to be grieved and then
processed to arbitration. The substantive right was the right to displace a junior
employee, while the procedural obligation was to identify two jobs at the time of referral.
This obligation was mandatory, but it was a procedural step that could be waived.
[15] The union submitted that mandatory collective agreement provisions were not
always jurisdictional. The fact that a provision was considered to be procedural did not
mean that it was less important, only that it was related to process. The import of Article
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27.08 B was of no greater significance than the content of the grievance form, which
arbitrators invariably view as secondary to the real nature of the dispute between the
parties. This was the important distinction explained in Arbitrator Burkett in George
Brown, and one that was missed in the later decisions relied upon by the employer. There
are requirements in the collective agreement that can be mandatory and procedural, and
that can also be waived.
[16] The union submitted that the obligation was waived by the employer’s silence and
its failure to raise the objection at the time of the “fresh step” of scheduling the case for
hearing. The union argued the employer had the right to enforce the procedural
requirements in Article 27.08 B and could have done so by not waiving the strict
enforcement of the procedure. The fact that the employer waived the requirement for
the procedure under Article 27.08 B meant that the preliminary objection should be
denied.
[17] The union relied on the following authorities: George Brown, [1995] CarswellOnt
6780 (Burkett); Humber College, [2014] CarswellOnt 14507 (Parmar); George Brown,
[unreported, April 29, 2014, Devlin]; Seneca College, [2012] CarswellOnt 11829 (Bendel);
St. Clair College, [1997] O.L.A.A. No. 1086 (McLaren); St. Michael’s Hospital, [2012]
O.L.A.A. No. 79 (Schmidt); Ontario Ministry of Children, Community and Social Services,
[2020] CarswellOnt 13287 (Banks); Ontario Ministry of Community Safety and
Correctional Services, [2014] CarswellOnt 2742 (Briggs).
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Conclusion
[18] After carefully considering the submissions of the parties, the evidence, and
particularly considering the jurisprudence around Article 27.08 B, the preliminary
objection must be upheld. There are many decisions dealing with the language in dispute.
Some arise from the academic collective agreement and others from the support
collective agreement, but the principles that emerge are consistent and the weight of the
jurisprudence clearly favours the employer’s position.
[19] The main decision relied on the by the union, that of Arbitrator Burkett in George
Brown, was issued in 1995. The decision, as outlined above, found that the requirement
to identify the two positions claimed by the laid off employee was procedural and subject
to the doctrine of waiver. In my view, that decision was legally defensible and, moreover,
offered an outcome that was consistent with the aim of avoiding the practice of deciding
labour relations disputes based on technical irregularities, allowing instead for the airing
and resolution of the dispute between the parties. This approach was adopted by
Arbitrator Bendel in Seneca, and Arbitrator Shime’s decision in Humber, which was also
based on a factual analysis of whether there had been a waiver. Arbitrator Howard Brown
considered whether the conditions for waiver were present in both his Seneca and Sault
decisions, but in both cases he clearly expressed his conclusion that the collective
agreement requirement was “substantial and mandatory.”
[20] Aside from the George Brown, Seneca (Bendel) and Humber decisions, the rest of
the jurisprudence supports the employer’s interpretation. The line of cases goes back at
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least to the 1996 decision of Arbitrator MacDowell in Canadore, and reach the conclusion
that the requirement to stipulate specific target positions for the purpose of arbitration
of a layoff grievance under this collective agreement is mandatory, substantive, and
jurisdictional, and cannot be waived by silence. As Arbitrator Howe put it in his 2014
Sheridan decision:
“[T]he preponderance of awards under a succession of collective agreements has
quite consistently found those requirements to be mandatory and substantive
requirements which cannot be waived. Thus, a failure to comply with them is not a
mere technical deficiency or minor oversight which can be subsequently cured.”
[21] This approach is anchored in the unusual language found in Article 27.08 B that
stipulates that the two named positions: “…shall thereafter be the subject matter of the
grievance and arbitration.” Arbitrator Michel Picher explained the significance of this
wording in the 2007 Centennial decision, under the support bargaining unit collective
agreement, in which he stated:
“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 [in Mohawk],
namely that 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.”
[22] The conclusion of most arbitrators, in other words, has been that Article 27.08 B
defines the ambit of the “subject matter” that is to be litigated, and if that subject matter
is not stipulated as required, there is nothing to litigate. The jurisprudence confirms that
arbitrators have almost invariably enforced that conclusion in the interpretation of this
language. Although there is a labour relations benefit to the George Brown approach,
there is no room to deviate from the established jurisprudence, since to do so I would
have to conclude that many arbitrators were manifestly mistaken in their conclusions
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about the disputed language. The arbitral jurisprudence is clear that where there is an
existing decision between the same parties establishing the interpretation of the same
language, a subsequent arbitrator should not depart from the prior decision unless that
decision was clearly or manifestly wrong. I cannot conclude that the consensus of the
majority of arbitrators about the disputed language is wrong, let alone clearly or
manifestly wrong. The consensus interpretation of Article 27.08 B is a valid legal analysis.
In addition, it has been confirmed repeatedly. Even by 2003, in the Mohawk decision,
Arbitrator Guy Thorne was referring to the extensive “body of interpretation” favouring
the position that the language in dispute was jurisdictional and not procedural.
Subsequent arbitrators have made the same observation. The language has been subject
to renegotiation many times since the 1996 Canadore decision and has not changed in
any meaningful way. To quote Arbitrator Picher again in Centennial:
“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 [support]
collective agreement … is a matter of negotiation, not arbitration.”
[23] Given the above, the preliminary objection is upheld, and the grievance must be
dismissed.
_________________________________
Barry Stephens, Arbitrator
December 20, 2021