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HomeMy WebLinkAboutUnion 02-04-10 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PROPERTY ASSESSMENT CORPORATION AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE MATTER OF A POLICY GRIEVANCE - ARTICLE 10 O.B. SHIME, a.c. CHAIRPERSON R.J. GALLIVAN NOMINEE FOR THE CORPORATION PAMELA MUNT-MADILL NOMINEE FOR THE UNION APPEARANCES: ROBERT W. LITTLE COUNSEL, and others for the Corporation KRISTIN A. ELIOT COUNSEL, and others for the Union A hearing was held in this matter at Toronto, Ontario on January 3D, 2002 AWARD On May 24th, 2001, in a letter to employees, Mr. R.A. Richard, the President and Chief Administrative Officer of the Employer, informed all employees that there was going to be a change in the organization to focus on new priorities, implement new technologies, and streamline business processes and that would introduce a measure of uncertainty. As a result of the changes, some employees would be affected, and more particularly fewer positions might be required in some areas so that it might be necessary to declare some employees surplus. As a result of the proposed changes, approximately 29 identical, alleged group grievances were filed throughout the province within a three week period claiming that the Employer had violated the health and safety provisions of the Collective Agreement and the Health and Safety Act by its "proposed restructuring" and its impact on the health of the employees. All the grievances request that the Employer cease and desist from implementlng any of the "proposed changes". On June 22nd, 2001, Mr. Greg J. Volkes, Employee Relations Consultant for the Employer, wrote to Ms. Anne Lee, the District Grievance Officer for the Union, as follows: I have received several group grievances filed from several OPAC workplaces, with identical wording and I continue to receive them almost on a daily basis. During the week of June 25 I will compile a list of OPAC workplaces in which the grievances were filed and I will notify you of such. At that time we can schedule a Stage Two meeting for aU of the grievances, and the Union may select three grievors to attend on behalf of all. We did this for the grievances involving employees who were seeking seniority for time employed with the Ministry of Finance as unclassified employees. On June 28th, 2001, Ms. Lee replied to Mr, Volkes as follows: Re: Health & Safety Grievances The Union does not agree with your proposal to hold one Stage 2 meeting for all of these grievances. Unlike the seniority grievances, each of these matters will raise different fact situations that require an individual review of the circumstances giving rise to this grievance. Therefore, you Sllould proceed to schedule Step 2 ,nGGtingi; in each office. You shou~d be ;:r:/J[C tlo1i/cvcr th3t :n son1C CZlSCS you -2- are now beyond the time limits for holding these meetings. Mr. Volkes again wrote to Ms. Lee on June 29th as follows: As I indicated in my letter dated June 22, 2001 I have compiled a list of OPAC workplaces that have filed group grievances that allege violation of the Collective Agreement and the Health and Safety Act. All of the grievances have identical wording, and as such we are prepared to conduct one Stage Two meeting to address the issue. I suggest one of two options: . One Stage Two meeting for all grievances and the Union selects any three grievors. This meeting would be held at OPAC Head Office. . One Stage Two meeting in a regional office chosen by the Union to be representative of all grievances. Three grievors could be selected from that workplace to represent all. Since the grievances are identically worded, we are not prepared to hold Stage Two meetings at every workplace. If you do not agree with either of the above options, I will assume that you will proceed to the next step in the grievance procedure as indicated by the Collective Agreement. As a result of the differences between the parties with respect to hOlding Stage Two meetings, the Union filed a grievance alleging that the Employer violated Article 10 of the Collective Agreement by failing to hold Stage Two meetings when requested, and the Union requested a declaration that the Employer violated the Collective Agreement and an order that the Employer must hold Stage Two meetings when requested. The Union submits that under the Collective Agreement the Employer was required to hold Stage Two meetings, which the Union maintains were appropriate, because there were different fact situations with respect to the different group grievances. The Union further maintains that the Stage 'fwo meeting was the first stage of the grievance process for group grievances under the -3- Collective Agreement before the matter is referred to arbitration, and is the only opportunity to resolve the issues that are in dispute. The Union argues that there is no provision under the Collective Agreement to treat 29 group grievances as one and to force single meetings with a small number of grievors. The Employer alleges that group grievances are all identical and nothing personal is claimed in any of the separate grievances and there is no evidence to suggest a need to address all of these issues separately. The Employer submits that the grievances were a Union-driven response to restructuring and the Union has artificially separated the matter into group grievances. The Employer argues that pursuant to Article 1.01 a prompt and orderly method to resolve the grievances is required and the Union is prevented from abusing the grievance procedure. The Employer asserts that pursuant to Article 10.25 it would require 87 grievors and 29 stewards, without any loss of pay, to attend at 29 separate locations to address a corporate issue. The Employer further argues that the Board should decline to remedy this situation. By way of reply, the Union maintains the grievances are worded the same, but there is no evidence that the grievances are substantively the same, and, accordingly, it is not open to the Employer to refuse a meeting at Stage Two. The Union claims it is protecting its members and there is no evidence there is an abuse of the process. The relevant provisions of the Collective Agreement are as follows: ARTICLE 1 - PURPOSE 1,01 The purpose of this Agreement is to establish and maintain working conditions hm HS of work mHl W8gAS wit h respect to employees covered hy this Aqreernent and -4- to provide for a prompt and orderly method of settling complaints or grievances which might arise hereunder. 1.02 This Agreement sets forth the enUre Agreement on rates of pay, hours of work and ot her conditions of employment. Amendments to this Agreement may only be made in writing on the agreement of both parties. There are no representations, warranties or conditions that affect the rights of the parties and employees, save and except those specifically set out in this Agreement. ARTICLE 10 ~ GRIEVANCE AND ARBITRATION PROCEDURE 10.01 For purposes of this Agreement, a grievance is defined as a difference arising between the parties relating to the interpretation, application, administration or alleged violation of the Agreement including any question as to whether a matter is arbitrable. For the purpose of this Article, reference to "days" relating to Stages in the grievance and arbitration procedure shall mean working days. 10.02 It is the mutual desire of the parties hereto that complaints of employees shall be considered as quickly as possible. It is understood that an employee has no grievance until he/she has first given his/her immediate supervisor the opportunity of resolving his/her complaint. If an employee has a complaint he/she shall discuss it with his/her immediate supervisor within twenty (20) days after the circumstances giving rise to the complaint have occurred or ought to have reasonably come to the attention of the employee. The supervisor shall give his/her response to the complaint within five (5) days, and, failing settlement, or failing a response, it may then be taken up as a grievance within seven (7) days following advice of the immediate supervisor's decision in the following manner and sequence: Stage One The employee may present his/her grievance to his/her immediate supervisor. The grievance shall be in writing and shall include the nature of the grievance and the remedy sought. Failing settlement, the immediate supervisor shall deliver his/her decision in writing within five (5) days following the presentation of the grievance to him/her. Failing settlement: Stage Two Within ten (10) days after the decision in Stage One, the employee may submit the grievance in writing to the Vice President, Corporate and Human Resources or his designate. A meeting will then be held between the Vice President, Corporation and Human Resources or designate and the appropriate Union steward and the grievor jf either party requests. Such meetings shall be held within ten (10) days of submission of the grievance at Stage Two unless extended by written agreement of the parties. The decision of the Vice President, Corporation and Human Resources or his designate shall be delivered in writing within ten (10) days ~5- following the day of such meeting. Union Grievance 10.03 Where any difference between the Employer and the Union arises from the interpretation, application, administration or alleged violation of the agreement, the Union shall be entitled to file a grievance at the Second Stage of the grievance procedure provided it does so within thirty (30) days following the occurrence or origination of the circumstances giving rise to the grievance. This provision is intended to allow general or policy issues to be pursued by the Union but is not intended to take the place of individual or group grievances. Group Grievance 10.04 Where a number of employees have identical grievances and each employee would be entitled to grieve separately, they may present a group grievance, and such written grievance shall be originated under Stage Two, and the time limits set out with respect to that Stage shall appropriately apply. Arbitration 10.13 Failing settlement under the foregoing procedure of any grievance between the parties arising from the interpretation, application, administration or alleged violation of this Agreement, including any question as to whether a matter is arbitratable, such grievance may be submitted to arbitration as hereinafter provided. If no written request for arbitration is received within twenty (20) days after the decision under Stage Two is given, the grievance shall be deemed to have been abandoned. 10.14 Where no written answer has been given within the time limit specified, the grievance may be submitted to the next step of the foregoing procedure, including arbitration. 10.16 When either party requests that any matter be submitted to arbitration as provided in the foregoing article, it shall make such request in writing addressed to the other party to this Agreement. Where such a request is made, a Board of Arbitration shall be constituted, consisting of a nominee appointed by each party and a Chair selected by alphabetical rotation from the following list: George Adams Robert Howe William Kaplan Richard MacDowell Owen Shime Susan T acon If the person selected by rotation is not available for a Hearing within ninety (90) days of the referral, the next person on the list shall be selected. 10.1 9 No matter may be submitted to arbitration which has not been properly carried through all requisite steps of the grievance procedure. -6- 10.21 The Board of Arbitration, the Parties may agree on a sole arbitrator, to be selected from the list in 10.16, who shall have all the power and authority of a Board of Arbitration. The parties may agree to allow the sole arbitrator to act as a mediator/arbitrator. 10.23 The parties acknowledge that the time limits set out in both the grievance and arbitration procedures must be strictly complied with except by written agreement to extend them and failure to so comply shall result in the grievance being deemed to have been abandoned. 10.24 The parties agree that principles of full disclosure of issues in dispute as alleged by a grievance advanced by the Union on behalf of a member or members, or the Union itself, and full disclosure of facts relied upon by management in a decision that is subject to a grievance, are key elements in amicable and expeditious dispute resolution processes. Therefore, the parties agree that at the earliest stage of the grievance procedure, either party upon request is entitled to receive from the other, full disclosure of the information, including full disclosure of all relevant documents. 10.25 An employee who has a grievance and is req uired to attend meetings at Stage One or Stage Two of the grievance procedure shall suffer no loss of regular pay to attend such meetings. In the case of a group grievance, up to three (3) grievors of the group shall be entitled to be present unless otherwise mutually agreed. 10.26 An employee whose grievance is referred to mediation or arbitration may attend the day or days of mediation or arbitration without loss of regular pay for such day or days. In the case of a group grievance, up to three (3) grievors of the group shall be entitled to be present unless otherwise mutually agreed. A superficial reading of both the grievance and the Collective Agreement suggests that this being a grievance by a number of employees, they are entitled, pursuant to Article 10.04, to originate a group grievance at Stage Two of the Collective Agreement. Under Article 10.02, Stage Two, a meeting is to be held between the Vice-President, Corporate and Human Resources or designate and the appropriate steward if either party requests. The Stage Two procedure also requires that such meeting shall be held within ten days of submission of the grievance at Stage Two and then a decision of the Vice President or his designate is to be delivered within ten days following the date of such meeting. At first blush the requirement to hold a meeting appears to be mandatory. -7- However, the Collective Agreement distinguishes among individual, group, and Union grievances. Article 10.02 is the reference to individual grievances and it suggests that where an employee has a complaint that he/she shall discuss it with her immediate supervisor and the supervisor is entitled to respond. That provision, like many other individual grievance provisions, suggests an "in the workplace dispute" where an employee has a workplace complaint, and accordingly, the Collective Agreement suggests that attempts should be made, in the first instance, to deal with that complaint between the employee and his/her supervisor. Individual complaints are thus required to be given individual consideration; for example, where an employee alleges that he/she has been improperly transferred, or improperly laid off, or improperly suspended or discharged, the complaint will have characteristics peculiar to the employee, which may be remedied by either the parties agreeing to a personal solution tailored to the individual or by an arbitrator making an award for the benefit of an individual employee, such as, prohibiting a transfer or a layoff of the individual employee or g ranting compensation to an individual employee who has been wrongfully disciplined or dismissed. A group grievance is defined under Article 10.04 and provides that where a number of employees have an identical grievance and each employee would be entitled to grieve separately they may present a group grievance which shall originate at Stage Two. The nature of a group grievance is that it consists of a bundle of individual grievances, with the result that individual circumstances may be considered and individual or personal remedies may be tailored to the grievors. A group grievance permits identical but individual matters to flow through the grievance procedure and into arbitration and saves the parties the time and expense of dealing separately with individual grievances in circumstances where those individuals have identical grievances. However, under this Collective Agreement a group grievance, being a bundle of individual -8- grievances, must have as its essential character identical circumstances relevant to each individual so that any remedy may be tailored toward the individual employees. Article 10.03 defines a Union grievance as one constituting a difference between the Employer and the Union arising from the interpretation, application, administration or alleged violation of the agreement and more specifically the Article provides that it is a provision that is intended to allow "general or policy" issues to be pursued by the Union, but is not intended to take the place of individual or group grievances. Thus a complete reading of all of these grievance provisions suggests that there is a clear distinction between the various types of grievances. We now turn to the facts at hand. It is reasonable to infer from the submissions, including the timing of the letter to employees advising them of the reorganization and the timing of the grievances, that the proposed restructuring had not taken place at the time the grievances were filed. Indeed, all the grievance forms do not refer to an actual restructuring but use the term "proposed restructuring", We also have no doubt that the proposed restructuring will impact upon the employees to varying degrees - some may be transferred and some may be declared surplus, but that is to occur in the future. The employees certainly have a legitimate concern that they will be affected, but any impact is at a future date and different employees may be differently affected. Since some employees may be deployed while others may be declared surplus and others not affected at all, the prospective individual grievances may not be identical, which is a requirement of a group grievance. Therefore it Is reasonable to infer that these grievances are not properly group grievances within the meaning of the Collective Agreement. Also, as we have indicated where there are individual grievances, the rernedies requested -9- are usually personal with respect to the individual employee. For example, an employee usually requests some relief that he/she may be relieved from a layoff, or that he/she shall be given a promotion, or that he/she shall be compensated as a result of a wrongful suspension or dismissal. In this case, the remedy is not personal, nor is it specifically directed toward any individual employee, rather the remedy is directed toward the Employer, by requiring the employer to cease and desist from implementing "any of the proposed changes". No doubt, if the grievance is successful, employees who might be affected by the proposed changes will benefit as individuals, but that is an indirect benefit resulting from the blanket remedy requested, which is directed at the Employer rather than being for the direct benefit of the individual grievors. At this particular juncture, all 29 grievances are identical, and it may be required to not only have 29 Second Stage grievance meetings, but also, either party, since there are separate grievances, is entitled to have each of the alleged group grievances heard by individual arbitrators, resulting not only in considerable time and expense to the parties, but also resulting in 29 separate arbitration hearings with the possibility of 29 distinct decisions by arbitrators, which may not only vary in substance but also in content. Quite clearly this would be at odds with the stated purpose of the Collective Agreement in Article 1.01 which is "to provide for a prompt and orderly method of settling complaints or grievances". After considering the submissions, the Collective Agreement, and the face of the grievances, it is our view that all of these grievances are identical in wording and really raise "general or policy issues" within the meaning of Article 10.03 of the Collective Agreement, which is the provision for Union grievances. Also, each of these grievances is not a bundle of identical individual grievances but rather they are identically worded Union grievances and, as such, the ~1O- 29 grievances are duplicate grievances. In our view, the filing of so many similarly worded grievances and the request for 29 separate meetings, to deal with the same general issue, constitutes an abuse of the process. To allow these grievances to proceed separately would be really a triumph of form over substance. In the result, we determine that all of the grievances shall be considered and consolidated as one Union grievance and the Employer is required to hold only one Stage Two meeting pursuant to Article 10.02 of the Collective Agreement in order to deal with all of these grievances. Since the Union is the proper party to Union grievance at the Stage Two meeting, the Union shall be the appropriate party to meet with the Employer and not the individual grievors. The Employer shall not be required to hold Stage Two meetings with respect to the separate grievances. The parties shall proceed on that basis and we shall remain seized should any problem arise as a result of this decision. 141 DATED AT TORONTO THIS 10 DAY OF APRIL, 2002 ~ l.._. O.B. SHIME, a.c. .CHAIRPERSON "I CONCUR" R.J. GALLIVAN NOMINEE FOR THE CORPORATION DISSENT ATTACHED PAMELA MUNT.MADILL NOMINEE FOR THE UNION DISSENT I disagree with the Majority's decision to dismiss the grievance. The Majority based its decision on two separate findings, Firstly, that the 29 group grievances were improperly filed as group grievances and are, as a matter of fact and law, one union grievance. Secondly, that the union committed an abuse of process in filing the grievances in this manner. The first conclusion of the Majority is incorrect for three reasons. Firstly, neither party at arbitration made any suggestion to the Board that there was a problem with the form of these grievances. In the absence of submissions from the parties on this matter, it is inappropriate for the Board to enter into an analysis. Such action is not only legally questionable; but potentially harmful to the parties' future relations. The Board had no indication from the parties as to the manner in which they wished to have these provisions of the Collective Agreement interpreted. Also the Board had no indication of the manner in which the parties had used these provisions in the past. It is for these sorts of reasons that boards of arbitration do not attempt to formulate interpretations of a Collective Agreement without being asked to by the parties or, at the very least, without asking for the parties' submissions on the matter. Furthermore, in the absence of the parties requesting the Board to rule on the matter of the proper form of these grievances; it is unclear the Board has any jurisdiction to do so. The grievance procedure, and the manner of its use, is a matter for the parties. A board of arbitration does not have jurisdiction over that process unless the parties file a grievance. Neither party filed a grievance based on the form of these grievances. Absence such a grievance, the source of the Board's jurisdiction is unclear and questionable. The second reason the Majority's conclusion on the improper form of these grievances is incorrect is based on the doctrine of waiver. If the employer had wished to object to the form in which these grievances were filed, they were required to make this objection during the grievance procedure. This is exactly the sort of situation in which the doctrine of waiver has uniformly been applied in the arbitration context. The evidence before the Board was clear that on at least two occasions Mr. Greg Volkes, on behalf of the Employer, had an opportunity to object to the form in which these grievances were filed and did not. Those two occasions occurred on June 22, 2001 and again on June 29, 2001. A review of the correspondence as reproduced in the Majority's decision clearly shows that Mr. Volkes at no point in time made such an objection. Clearly, the Employer has waived their right to do so. It is clear from Mr. Volkes' letters that his concern was not in any way with the form of the grievances but rather with the requirement to hold 29 separate meetings. This is the issue the Board had jurisdiction over and should have addressed. It should not have concerned itself with the issue of the characterization of the grievances as union or group grievances. Thirdly, the Majority's decision is incorrect due to its improper interpretation of the relevant articles of the Collective Agreement. The Majority seems to find substantial justification for its decision based on the fact that the grievances here are not "identical". Furthermore, the Board places some reliance on the fact that these grievances are merely perspective at the point in time when they are filed. Whether these grievances were perspective or not is irrelevant. However, factually, this is incorrect. Exhibit 4, being a letter dated May 24, 2001, Robert A. Richards to all OPAC employees states that "Our work on futures has now progressed to the point where we are ready to move fotWard with the implementation. H. The only evidence, therefore, the Majority had before it regarding whether or not the restructuring had begun at the point in time when the grievances were filed comes from this letter. It indicates that the restructuring was to commence as of May 24, 2001. The Majority's decision does not make it clear on what evidence they based their decision that these matters were purely prospective. On the question of whether these grievances are identical, the Majority's decision takes a very restrictive view of the idea of identical. The evidence the Board had before it regarding the substance of these grievances was extremely limited. Any conclusion the Board makes regarding the substantive nature of these grievances must be based only on the evidence it had before it. Article 10.01 of the Collective Agreement defines a grievance as 1I....a difference arising between the pariies relating to the interpretation, application, administration, or alleged violation of the Agreement ,... n. In this case, the grievances before the Board uniformly and identically allege violation of the same provisions of the Collective Agreement. The Majority must accept this characterization of the violations of the Collective Agreement in absence of any evidence to the contrary. This Board had no such evidence. Furthermore, the Majority's characterization of these grievances as general or policy issues within the meaning of Article 10.03 in no way means they cannot also be properly filed as either group or individual grievances. Current case law suggests that there are not airtight compartments between the different species of grievances. Absent extremely restrictive language the Majority should not develop such narrowing and technical divisions. The second basis on which the Majority rejects the clear and mandatory nature of the language of Article 10.04 is that the Union had, in fact, committed an abuse of process in filing these matters as group grievances. This is an extremely serious finding by the Majority unsubstantiated by the evidence. Firstly, it should be noted that this Agreement includes a provision in Article 10.21 that liThe Board of Arbitration or sole Arbitrator shall not be authorized to make any decision inconsistent with the provisions of this Agreement nor to alter, modify, add to or amend any pari of this Agreement. ", A finding by the Majority that the language of Article 1 0.04 is not mandatory in regards to holding Stage Two meetings is blatantly inconsistent with the language of that Article and inconsistent with the specific provisions of Article 1 0.21 of this Agreement. page 2 The Majority apparently relies on the fact that these grievances are identically worded and have identical remedies to conclude that they are 29 duplicated grievances. This is an extremely puzzling finding given the Majority has previously found that these grievances werej in fact, not identical for the purposes of finding them improperly filed as group grievances. They either are identical grievances and therefore properly group grievances; or they are not identical grievances and therefore not an abuse of process. The filing of 29 identically worded grievances is no evidence of an abuse of process. It merely suggests that the administration of the grievance procedure is as centralized in the Union's hands as it is in the Employer's hands. This Majority drew no conclusions from the fact that the administration of the grievance procedure is done centrally by the Employer. In fact, the Majority's comments on page 9 suggest that it agreed with the efficiencies created by such central administration, To draw any negative inference from such centralized administration of the grievance procedure on behalf of the Union is inconsistent, problematic, and unwarranted. On page 9 of its decision, the Majority expresses a concern that a finding that these are properly constituted group grievances could lead to each of these group grievances being heard by individual arbitrators at considerable time and expense. This concern is prospective at best. The evidence before this Board through Exhibit 6 is that in the past these parties have utilized the grievance procedure in a mutually- respectful and efficient manner when large numbers of grievances have been involved. The reason Mr. Volkes suggested the procedure he did is precisely because the Union had been amicable to this efficiency when it was appropriate. To find therefore that absent clear and cogent evidence that the Union would commit an abuse of process is problematic and contrary to the evidence in front of the Board. Furthermore, it is open to either party to request consolidation of these matters at arbitration and this fully dispenses the prospective concern of the Board. For the Majority to anticipate or concern itself with this matter at this juncture is inappropriate. For these reasons, I would have allowed the grievance. The language of Article 10.04 is clearly mandatory. The parties should have been directed to attempt to come to a mutually-agreeable manner for dealing with these grievances at the second stage, Absent such agreement, the Board should have followed the mandatory language of the Collective Agreement and ordered the employer to hold the second stage meetings as required by the Collective Agreement. page 3 SUPPLEMENTARY AWARD There are a number of comments to be made with respect to Ms. Munt-MadiH's dissent. In the correspondence between the parties, it is clear the Employer attempted to deal with all of the grievances at the same time at stage 2. On June 22, 2001 the Employer advised the Union that it had received grievances with identical wording and it would compile a list of workplaces in which the grievances were filed and "at that time we can schedule a stage 2 meeting with all of the grievances and the Union may select three grievors to attend on behalf of all". On June 28, 2001, the Union did not agree to hold "one Stage 2" meeting and stated that these matters would raise different fact situations that would require an individual review of the circumstances. On June 29, 2001, the Employer's reply, referring to all the grievances stated that "all of the grievances have identical wording, and as such we are prepared to conduct one Stage Two meeting to address the issue" and proposed that one Stage 2 meeting be held at the MPAC head office or a Stage 2 meeting be held at a regional office. The Employer then stated that "since the grievances are identically worded, we are not prepared to hold Stage 2 meetings at every workplace" and If the Union did not agree that it should proceed to the next stage in the grievance procedure. It is clear from the correspondence, that the Employer did not accept the Union's contention that the grievances wotlld raise different fact situations requiring individual reviews and that the -2- issue between the parties was whether all of these grievances should be treated as separate grievances. In his argument, Counsel for the Employer said that all of the grievances were "identical", that "nothing personal was claimed" in each of the 29 grievances "and there was no evidence that there was a need to address each of the grievances separately". Counsel then submitted "this was a union-driven response to restructurin~l" and the issue was "corporate-wide" with "corporate remedies" and suggested that the Union could not artificially separate the issue into single group grievances. Counsel went on to refer to Article 1.01 of the Collective Agreement which requires" a prompt and orderly method of settling complaints or grievances" and argued that each party was prevented from "abusing the grievance procedure". Counsel for the Employer also submitted that the Employer "considered the 29 separate grievances as a single grievance and complained that it was not necessary to have 29 separate meetings at 29 locations" and then have "87 grievors and 29 stewards all to address a corporate wide issue and iemedy". The Union took issue with the Employer's submission and argued that different regional offices may have different views and the process proposed by the Employer might not be adequate. However, specific examples were not provided, nor were there any submissions that individuals had been harmed. The Union also joined issue with the Employer on whether the filing of 29 grievances constituted an abuse of process. It is clear from the submissions, that the Employer was objecting to the form of the grievance and there was a problem in dealing with 29 separate grievances. The Employer suggested that these were, in effect, the same grievance, or a single grievance, that they were "union driven" as distinct frol11 being individually drivon, Jnd the Union was seGking a corporalo -3- remedy as distinct from individual remedies. Accordingly, it is our view, that we were entitled to assess the parties' respective positions and to conclude that these "union driven" separate grievances were identical and were not a product of individual complaints. The facts are usually for the parties I but the law is for the Board, and a Board of Arbitration is entitled to draw inferences from the facts presented and to come to its own conclusions as a matter of law. Based on the arguments, the correspondence, the language of the grievances, the distinctions made in the Collective Agreement, and the absence of any assertion that the grievances were individual/personal grievances, the Board was entitled to come to the legal conclusion that all these grievances were, as a matter of law, the same and were in totality the same Union grievance. Clearly, the issue between the parties was whether these were separate grievances or whether they were identical and that is the issue we were asked to address and did address. Further, a Board of Arbitration has wide remedial authority, as the courts have found, and it is open to a Board of Arbitration to deal with the issue raised and to exercise its remedial authority in an appropriate manner based on the issues between the parties, and we did so. Since we have found that all of these grievances are in substance the same grievance, we are entitled to exercise our remedial authority and to consolidate the grievances. Ms. Munt~Madill raised the issue of the doctrine of waiver. In her dissent, Ms. MuntNMadill chastises the majority for reaching a conclusion that there were no submissions to the Board that there was a problem with the form of these grievances and "in the absence of submissions from the parties in this matter, it is inappropriate for the Board to enter into an "analysis", However, as we indicated the whole thrust of the submissions was that there was a problem with the grievances as filed. However, contrary to her earlier statement, Ms. Munt-Madill then deals with the issue of waiver notwithstanding there were no subrnissions Inade by the parties wilh respect to the doctrine M4~ of waiver, and accordingly, that issue was not addressed by the majority. However, since Ms. Munt-Madill has addressed the issue of waiver without any submissions we shall deal with that issue. It is clear from the correspondence between the parties that the Employer, from day one, took the position that the group grievances had identical wording and wanted to schedule only one Stage 2 meeting for all of the grievances. The Union replied on June 28, 2001, that it "did not agree with your proposal to hold one Stage 2 meeting for all of these grievances" and the Employer responded to the Union's position that it was prepared to conduct one Stage 2 meeting to address the issue and that it was not prepared to hold Stage 2 meetings at other workplaces, and that if the Union did not agree that it should proceed to the next step in the grievance procedure. Certainly the Employer's position not only dealt specifically with the issue, but also the Employer took a separate and distinct position from the Union, it did not deal with the merits, but simply proposed a solution and suggested that if that solution was not acceptable the matter should proceed further. Certainly the Employer's conduct does not fall into any known or reasonable definition of waiver. Ms. Munt-Madill also states that the majority" seems to find substantial justification for its decision based on the fact that the grievances are not 'identical'." On the contrary, our decision was based on the fact that all the grievances were identical in form and substance. At no time during the proceedings, and in the face of the Employer's argument that these grievances were identical and this was a union-driven response asking for a corporate remedy, did the Union argue that these were identical, Le. personal grievances, as is required by Article 10.04 of the Collective Agreement. Clearly the grievances are identical and, in effect, the same grievance has been filed twenty.nine times. That is why we have consolidated all of these grievances into one grievance. -6- may not be airtight compartments between different species of grievances, it is our view that each collective agreement must be dealt with based on its own language and terms. This Collective Agreement readily distinguishes between the various types of grievances and must be interpreted based on its specific language. Certainly no cases were cited to us where the facts were similar to this grievance, i.e. there the grievance procedure so specifically defines the different types of grievances. It is on the basis of this Collective Agreement that our decision was made which is our legal obligation. As to the abuse of process, the Employer argued quite forcefully that this was an abuse of process and contrary to Article 1.01 which requires the parties to "provide for a prompt and orderly method of settling complaints or grievances which might arise hereunder", Again, the Union had ample opportunity to submit that the grievances were comprised of individuall personal employee grievances within the meaning of the Collective Agreement and properly fell into the Collective Agreement definition of a group grievance. Given the language contained in the grievances, the submissions of the Employer that this was a union-driven grievance and a corporate matter, and the absence of any submissions by the Union that these were individual/personal grievances, we were entitled to draw the inference that these grievances were identical in both form and substance and as a matter of law fell within the meaning of a Union grievance. Accordingly, we were entitled to draw the inference that the request to deal with these matters separately constituted an abuse of process. -7- DATED AT TORONTO THIS 10TH DAY OF APRIL, 2002 (jfzJe~ O.B. SHIME, a.c. .CHAIRPERSON "I CONCUR" R.J. GALLIVAN NOMINEE FOR THE CORPORATION PAMELA MUNT-MADILL NOMINEE FOR THE UNION