HomeMy WebLinkAboutUnion 11-09-281 [
Hamilton Health Sciences
(Hereinafter referred to as "the Hospital')
. 11
Ontario Public Service Employees' Union -Local 273
(Hereinafter referred to as "the Union ")
Regarding: Union Grievance Regarding Meal Breaks
Sole Arbitrator: Felicity D. Briggs
r= MI Joyer: Mark Zega
Rebecca Ballantyne
for the Union: Christopher Brydell
Marilyn Bello- Crispo
On January 26, 2009, the Union filed a grievance that alleged a violation
of Article 16 because "employees are required to remain on the
premises during their lunch period in order to be available to be
recalled to duty." By way of remedy the Union request compensation as
of February 11, 2008.
In opening statements the Board was informed by the Union that the
grievance was filed on behalf of employees working in i) the
microbiology lab, ii) diagnostic imaging, iii) respiratory technologists
and iv) the transfusion area. The main focus of the grievance is for those
employees who work the night shift and weekend shifts 'and who work
alone in their department. While these employees are allowed to take
their meal breaks, they are not permitted leave the Hospital even
though this time is unpaid.
At the outset of the hearing into this matter the Hospital raised a
preliminary objection. Notice of this objection had not been formally
given to the Union and so it was agreed that the Union would reply by
way of written submissions with the Hospital's final right of repl y also
in writing.
Relevant portions of the Collective Agreement are as follows:
8.04 Policy Grievance
A complaint or grievance arising directly between the Hospital
and the Union concerning the interpretation, application or
alleged violation of this Agreement shall be originated at Step No.
2 within fourteen (14) calendar days following the circumstances
giving rise to the complaint or grievance. It is expressly
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understood, however, that the provisions of the Article may not be
used with respect to a grievance directly affecting an employee
which such employee could himself institute and the regular
grievance procedure shall not be thereby bypassed.
8.11 No matter may be submitted to arbitration which has not
been properly carried through all requisite steps of the Grievance
Procedure.
8.12 The Arbitration Board shall not be authorized to make any
decision inconsistent with the provisions of this Agreement, nor
to alter, modify, add to or amend any part of this Agreement.
Mr. Zega, for the Hospital, submitted that while there is disagreement on
the merits of this matter, this Board cannot take jurisdiction of the
grievance because it is has been improperly filed as a policy grievance.
The employees affected by this matter are many. They work at various
sites performing different work and are supervised by assorted
managers. The facts for each of these areas, if not each individual
employee, would be quite specific and varied.
The Hospital contended that it is clear from the language of Article 8 of
the Collective Agreement that the parties negotiated a process for
individual, group and policy grievances. According to Article 8.04 it was
agreed that in those instances where individuals could grieve on their
own behalf, the Union would not circumvent that requirement. In this
matter the bargaining unit members who are claiming that their right to
an unrestricted lunch period could have and should have filed a
grievance on their own behalf. Indeed, the Union is seeking individual
redress underscoring the need for individual grievances to be filed.
The Hospital asserted that this objection is not a mere procedural
irregularity. Rather this is a fundamental issue going to the Board's
jurisdiction. In this regard the Hospital relied upon Re University of
Western Ontario & University of Western Ontario Staff Association
(2002), 108 L.A.C. (4th) 139 (Davie); Re University of Toronto and
CUPE, Local 3902 (February 29, 2009), unreported (Leighton); Re St.
Clair Catholic District School Board and OECTA (February 11, 2011),
unreported (Luborsky); Re Toronto District School Board and CUPE,
Local 4400 (May 31, 2000), unreported (Schiff); and Re Fischercast
Global Corp. and Independent Union of Precision Diecasters (2008),
175 L.A.C. (4th) 195 (Randall).
The Hospital submitted that the arbitral jurisprudence on this matter is
clear and consistent. Once a determination is made that there are
identifiable employees directly affected by the activity at issue who
could have filed their own grievance an arbitrator cannot take
jurisdiction of a policy grievance contemplating whether that activity
constitutes a violation of the Collective Agreement.
UNION SUBMISSIONS
The Union's fulsome written response contains three reasons this Board
should reject the Hospital's preliminary objection. First, the grievance is
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properly the subject of a policy or Union grievance in accordance with
this Collective Agreement. In the alternative, if it is determined that this
grievance is not properly a policy grievance such an error does not
automatically render the matter inarbitrable. In the final alternative, the
Hospital has waived its right to raise this objection as it was not raised
until the eve before the hearing into this matter. Given that the objection
is of a procedural nature, the Hospital is now foreclosed from raising
this objection.
In its submissions the Union asserted that at no point during the
grievance procedure did the Hospital raise this preliminary objection
nor did it reserve its right any preliminary matters. This fact was not
disputed in the Hospital's reply submissions. The earliest that this
matter was raised with the Union was in a discussion between counsel
one week prior to the scheduled hearing date, which is almost two years
subsequent to the filing of the grievance in the first instance.
Regarding the first prong of the Union's argument, it was asserted that
Article 8 of the Collective Agreement does not foreclose the Union from
raising this matter in the form of a policy grievance. Article 8.04 refers
to an individual employee in the singular sense and only prohibits a
policy grievance from being filed "with respect to a grievance directly
affecting an employee which such employee could himself institute..... ".
The instant grievance covers multiple employees at multiple sites and
departments. The clear intent of Article 8.04 is that a policy grievance
cannot be filed regarding a matter that could be grieved by an
a
individual. However, there is nothing in the Collective Agreement that
would preclude the Union from filing a policy grievance that affects
multiple employees working in various departments at different sites.
Group grievances and Union policy grievances are not mutually
exclusive under this Collective Agreement. To make such a finding
would require clear language and here the parties did not agree to any
such language. By contrast, Article 8.05 provides that Group Grievances
can be filed "where a number of employees have identical
grievances..... ". In Article 8.05 the parties agreed to different words and
first principles of contract interpretation mandate that when different
words are used, those words are intended to have different meanings.
In the alternative, the Union argued that even if the Hospital is right that
the grievance has been filed in the wrong form it is not automatically
inarbitrable. Such a finding would require clear and precise language
such as "as grievance filed as a policy grievance that could have been
filed as an individual grievance shall not be submitted to arbitration".
Article 8.04 provides only that a policy grievance not be used to
circumvent the grievance procedure for individual grievances.
Regarding the matter of waiver, it was the Union's contention that this
preliminary objection is procedural in nature and not a jurisdictional
issue. Accordingly it can be waived and in the facts of this matter, the
right to object has been waived. It was conceded that arbitrators are
somewhat divided on this issue. After a lengthy review of the case law
in this area, the Union urged that this Board should adopt the line of
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cases that stand for the proposition that the right to raise an objection
regarding the form of a grievance is a procedural right that can be
waived.
The Union relied upon Re Weston Bakeries Ltd. and Milk & Bread
Drivers, Dairy Employees, Caterers & Allied Employees, Local 674
(1970), 21 L.A.C. 308 (Weiler); Re Loyalist College & OPSEU (October
6, 1998), unreported (Finley); Re MacDonald et al and Treasury
Board (Transport Canada) (November 21, 1983), PSSRB File No. 166-
2 -13894 (Ashley); Re Purolator Courier Ltd. and Teamsters Local 31
(July 15, 1996), unreported (Jackson); Re Lever Pond's - Division of
UL Canada Ltd. and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and helpers of America, Local 132
(Chemical Energy and Allied Workers) (1998), 74 L.A.C. (4111) 81
(Briggs); Re British American Oil Co. Ltd. and Chemical and Atomic
Workers Local 9 -593 (1965), 15 L.A.C. 408 (Lane); re Regina v. Lane
et al ex parte Green et al. [1966] CLLC para 14137; Re Gourmet
Baker Inc. and United Steelworkers of America (Retail Wholesale
Canada, Canadian Service Sector) (May 3, 1999), unreported (Schiff);
Re Sudbury Mine, Mill and Smelter Workers' Union 598 and
International Nickel Co. of Canada Ltd. [1962] 35 DLR (2d) 371 (Ont.
CA); Re Ontario Public Service Employees Union v. Seneca College
of Applied Arts & Technology, [2006] 267 DLR (4th) 509 (Ont. CA); Re
Zellers Inc. and UFCW, Local 175 (February 18, 2005), unreported
(Marcotte); Re York Gears Ltd and United Automobile Workers,
Local 673 (1968), 19 L.A.C. 252 (Weatherill); Re Zellers Inc. & United
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Food & Commercial Workers International Union, Local 175
(September 20, 1999), unreported (Dissanayake); and Re Kaufman
Footwear and United Rubber, Cork, Linoleum & Plastic Workers of
America, Local 88 (June 28, 1996), unreported (Burkett).
[$1.1 U V JfA 10 'J 14 W FJ'&1 I
By way of reply the Hospital conceded that there are divergent findings
in the jurisprudence on this point. However, its interpretation is to be
preferred given that Article 8.04 constitutes clear and precise language
precluding the Union from bringing this matter in the form of a policy
grievance to arbitration. The different words used in Article 8.04 and
8.05 do not bring about the interpretation urged by the Union. The
words merely indicate when it is appropriate to bring multiple
individual grievances under a group grievance so long as all employees
are grieving the same issue.
The Hospital asserted that it is now settled law that parties may restrict
a Union's statutory right to arbitration by imposing procedural controls
on access to the arbitration process as the result of Re University of
Toronto v. CUPE, Local 3902 (2006), 150 L.A.C. (4th) 409 a decision
upheld by Divisional Court (180 L.A.C. (4th) 193). That is precisely what
has happened in the instant Collective Agreement. The Union cannot
now ask to be relieved of that restriction.
The Hospital took issue with the Union's characterization of this
objection as procedural. The matter at hand is whether the Collective
Agreement ousts the Union's substantive right to file a policy grievance
in circumstances where individuals could grieve. Such an objection is
substantive and relates to an arbitrator's fundamental jurisdiction.
Accordingly, it is a right that cannot be waived.
I INN M 10 0
I turn first to the issue of whether the grievance at hand was improperly
filed as a Policy Grievance. After a review of the Collective Agreement
and the jurisprudence provided, I am led to the inevitable conclusion
that the character of this grievance is properly individual or a group
grievance.
Arbitrator Randall considered policy grievance language virtually
identical to that before this Board. In his decision in Re Fibercast
(supra), he stated, at page 7:
The only test, on this language, is a fact-finding one. Were there
identifiable employees, directly affected by the employer's action,
who could have filed a grievance, at the time the policy grievance
was filed? The answer to that, on the facts before me and despite
Ms. Eliots' best efforts to convince me otherwise, is an
unequivocal 'yes'. The Employer action which leads to the policy
grievance is a series of individual lay-offs. Each employee, who
received a lay-off notice, 17 in all, was directly affected by the
Employer's action, and could have challenged same on the basis
that there was subsisting bargaining unit work, contracted out,
which they could perform.
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It seems to me that that finding is determinative of the matter.
While, as noted, a policy grievance might well have been preferred
as a mechanism for pursuing several of the big or foundational
issues in dispute, there is nothing in either the individual
grievance or arbitration procedure, which prevents the Union
from adjudicating these broad issues in the context of an
individual grievance or series of them and I so find.
I agree with that analysis and it applies equally in the matter before me.
According to the few facts set out in the submissions on the preliminary
issue, there were individuals who could have filed a grievance'alleging
they were "required to remain on the premises" during their own lunch
period in contravention of the Collective Agreement. While I appreciate
that there are, according to the Union, a number of employees working
in various departments at different sites and the violations occurred
over a period of time, many grievors with a common issue (even when
that issue is important to the Union) do not a policy grievance make.
What the Union should have filed was a number of individual grievances
from the various employees working at different locations and shifts
with a common issue.
As noted by other Boards of Arbitration, I accept that policy grievances
and individual grievances may have, at the heart of the issue, some
overlap. The line between the two types is not as finely drawn as some
might argue. However, I am compelled to determine this matter in
consideration of the language of Article 8.04. The policy grievance
provision may not be used "with respect to a grievance directly affecting
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an employee which such employee could himself institute and the
regular grievance procedure shall not be thereby bypassed."
There has been much arbitral consideration of the labour relations
reasons for allowing a Union to file a policy grievance when
circumstances where an employee could file an individual grievance. It
was noted more than four decades ago by Arbitrator Weiler in Re
Weston Bakeries Ltd. (1970),21 L.A.C. 308 at page 316:
It seems to us that these decisions indicate that there are at least
two quite distinctive ways of defining the ambit of union policy
grievance. The Burlington Board of Education approach is to
disallow union grievances in situations where an individual
grievance could be brought and would be equally effective. The
individual employee is given a veto over whether a situation
directly affecting him will be arbitrated. The Canadian Trailmobile
approach differs by allowing a substantial degree of overlap
between union and individual grievances. Any time an individual
situation raises a problem of some general interest to the
members of the unit, either because it involves an issue of
interpretation or because the company decision is a recurring
one, a policy grievance is valid. The individual does not have a
veto over union grievances where the bargaining agent has a
legitimate reason for obtaining an authoritative arbitral decision
about the matter.
In principle, each of these theories is a quite plausible
reconciliation of the competing policies involved in the problem of
union grievances. The question then is which of these alternatives
most fairly reflects the relevant language and structure of this
agreement......
In this case, the Hospital is not taking the position that the Union has no
right to have the matter of working during lunch periods arbitrated. It
merely contends that in order to have that matter determined, the
in
Union must follow the procedures set out in the instant Collective
Agreement. I agree.
The Union urged that in the event this Board finds that this grievance is
not properly the subject of a policy grievance, that finding is not
sufficient to render the grievance inarbitrable. It was said that clear
language would be necessary to make such a finding. For the purposes
of this decision, I am assuming the Union is right in that regard. Having
accepted that proposition in this instance, I must find that Article 8.11 is
precisely the clear language that the Union contends would be needed.
The parties agreed therein "no matter may be submitted to arbitration
which has not been properly carried through all requisite steps of the
Grievance Procedure." This grievance was not "properly carried
through" the grievance procedure steps set out in the Collective
Agreement. It was improperly submitted as a policy matter and filed at
stage 2 of the grievance procedure. According to Article 8.03, the first
step should have been for each individual to raise the complaint with his
or her immediate supervisor. Neither that, nor any other requisite step
of the Grievance Procedure for individual grievances was undertaken.
Contrary to the assertion of the Union, that failure would render this
matter inarbitrable according to the Collective Agreement.
The Union argued that because "employee" is in singular form in the
article that sets out policy grievances, it follows that if there are
"multiple employees from multiple sites and multiple departments" the
policy grievance is appropriate in this circumstance. It was urged that
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there should be a distinction made when the parties specifically utilize
the singular in some instances and plural in others. Accordingly, a
matter that could be grieved by a multiple employees - and not just one
- is properly a policy grievance. To be clear, the Union was urging a
finding that there is nothing in the Collective Agreement that bars it
from filing a policy grievance if it is about a matter that affects multiple
employees working at various places within the organization. While this
contention has some initial attraction, I must disagree. The second
sentence of Article 8.04 is precisely the Collective Agreement
prohibition against such activity.
For those reasons, I find that the matter before me should have been
filed as individual grievance(s) or a group grievance.
I turn now to the issue of waiver. The Union stated that it was not until
the proverbial eve of the hearing that the Hospital raised this
procedural objection and for that reason this Board must find that the
Hospital has waived its right to object. The Hospital did not dispute that
the matter was
not
raised earlier in the
process but urged that the
improper filing
of
a policy grievance is
a matter of fundamental
jurisdiction that cannot be waived. Ultimately counsel in this matter
agreed that the jurisprudence on this issue is not consistent.
After much consideration and a thorough review of the substantial
jurisprudence provided, I am of the view that the Hospital has waived it
right to raise its objection.
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The Union submitted that those Boards of Arbitration who have found
this matter to be of a fundamental jurisdictional nature were wrong
perhaps because of an erroneous reading of the law. It was noted that in
Re British American Oil (supra), the Arbitration Board found that the
improper filing of a policy grievance "is a substantive right" and that it
was "not a matter which can be waived by management". However, the
decision issued by the Ontario High Court upon the Union's application
for certiorari did not agree with that finding. The application was
ultimately dismissed on the basis that the board had exceeded its
jurisdiction by considering mitigating factors. However, in his decision,
Stewart J. stated:
I am of the opinion that the company was right in regarding the
grievance as being a personal one for I cannot see how by any
stretch of the imagination it could be a policy grievance. However,
I do not have to decide whether or not a personal agreement must
be, as the Board put it, "personalized" (presumably by being
signed) by or on behalf of the employee. The company by agreeing
to process the grievance commencing at Step 3 and by failing to
raise the issue during the time when any possible error could
have been corrected has waived its right to complain. In an
analogous situation it was held that an appellant having
participated in the formation of a Board and submitted its case to
arbitration before the tribunal it should not be heard upon its
objections to the procedure. Re Civic Employees Union No. 43
[1962] O.R. 970 at 974. The Editor of Labour Arbitration Cases has
summarized the position at page 242 as follows:
Where a defect in the grievance procedure is apparent on
the face of it and the other person makes no objection up to
the time of an arbitration hearing, it is then too late to raise
the objection and the defect will be deemed to have been
waived.
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This principle is one which equity requires to be followed in cases
where a right has been lost by reason of the failure to raise an
objection prior to the arbitration itself.
Were it not for the waiving of the objection I should have inclined
to view that no personal grievance can ever start at Step 3........
In Re Zellers Inc. (supra), Arbitrator Marcotte did an exhaustive review
of the case law in this area. In that case the Board was being asked to
consider whether a particular grievance was arbitrable as well as
whether the matter was properly filed as a policy grievance. The Union
took the position that, on the second point, the Employer had waived its
right to raise such an objection. In finding that the matter at hand was
not properly the subject matter of a policy grievance, he turned to the
matter of waiver. In his considerations he reviewed, amongst many
other decisions, Re SCI Brockville Corp. and Communications,
Energy and Paperworkers, Local 526 (February 21, 2003),
unreported (Weatherill). He began that deliberation at paragraph 88 as
follows:
Relevant to our purposes, the above case appears to indicate that
when an objection goes to the matter of the jurisdiction of an
arbitrator to deal with the grievance before him or her, such
objection is not susceptible to waiver and, thus, where the
objection to jurisdiction arises for the first time in the course of
the arbitration, the objection can properly be dealt with. Thus, on
the reasoning in the Toronto District School Board case, the
company's objection in the instant case as to the form of the
grievance would be viewed as a jurisdictional objection not
subject to waiver. This reasoning however, is not followed in the
SO Brockville case.
In Re SCI Brockville, supra, there were 102 individual grievances
and one group/union grievance complaining of the company's
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decision to shut down the plant for some six weeks because it
failed to provide the employees with lay-off notices under art.
4.13 of the collective agreement. On the first day of hearing, the
company raised, relevant to our purposes, an objection to the
group/union grievance on the basis, at p. 3, "that the subject of the
grievance is not a matter appropriate to be raised in such a
grievance, brought under article 5.08(a), since it cannot be
distinguished from a grievance "arising between the employee
and the company", and therefore, at p. 4, the arbitrator was
"without jurisdiction to hear the grievance"...
At paragraph 90 he continued:
The Union contended, at p. 7, "that any objection to the form of its
grievance has been waived", in that the matter of the form of the
grievance has not been raised by the company at any time in
processing the grievances prior to arbitration. In response, at p. 7,
the company argued "that this is an objection going to
jurisdiction; that it cannot be waived and may be raised at any
time." Arbitrator Weatherill dealt with the company's contention
at pp. 7 and 8, relevant to our purposes as follows:
This contention can be dealt with briefly. In my view, it
confuses the term "jurisdiction" with that of "fundamental
jurisdiction". The general jurisdiction of an arbitrator is
conferred on him or her by the collective agreement and ....
by the Labour Relations Act. Those sources confer on the
arbitrator the duty to decide certain questions arising under
a collective agreement, including any question as to
whether a matter is arbitrable. That includes questions as to
the form or timeliness of grievances, and in determining
such questions arbitrators have dealt with questions of
waiver, timeliness, condonation and the like. They decide
whether or not they have "jurisdiction" in the matter, and
such decisions are final and binding subject only to the law
of judicial review.
The "fundamental jurisdiction" of an arbitrator is limited to
that conferred by the collective agreement or statute. It
cannot be altered by the parties. Thus, a grievance invoking
the exercise of jurisdiction not properly conferred by the
001
collective agreement or by statute cannot be heard by an
arbitrator, and an objection to a grievance attempting to
invoke such jurisdiction may of course be raised at any time,
and indeed should be raised, if need be, on the arbitrator's
own motion. For example, a grievance seeking as a remedy
that the union be decertified as bargaining agent raises an
issue clearly outside the arbitrator's fundamental
jurisdiction. That power cannot be granted to the arbitrator,
and any objection cannot be waived. That is, of course, not
like this case: the parties may establish requirements,
including time limits, for the grievance procedure, and they
may waive them. The determination whether or not there
has been a waiver in respect of such matter as that is a
question which an arbitrator has jurisdiction to decide; it is
not a question of "fundamental jurisdiction".
Arbitrator Marcotte went on to find at paragraph 92:
Relevant for our purposes, arbitrator Weatherill draws, in my
view, an appropriate and legitimate distinction between
objections to the jurisdiction of an arbitrator as a creature of the
collective agreement and statute to deal with a difference, and
objections regarding the content of or manner in which a
difference between the parties arising from the collective
agreement is processed to arbitration. Thus an objection, for
example, to an arbitrator's jurisdiction to deal with a difference or
grievance arising under a collective agreement different from the
one under which the arbitrator was appointed is not a
jurisdictional objection that can be waived, since it raises the
matter of "fundamental jurisdiction" Re SCI, supra. On the other
hand, an objection to the manner in which a grievance is
processed to arbitration questions the arbitrator's ability to deal
with the merits of the grievance on the basis of some defect in the
procedures and not on the basis of some defect in the arbitrator's
jurisdiction arising from the collective agreement and statute.
Finally, at paragraph 97, Arbitrator Marcotte determined:
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The review of the above-submitted cases indicates that an
objection that addresses the issue of an arbitrator's jurisdiction
arising from the agreement or statute can be raised at any time
and is not subject of a waiver. On the other hand, an objection to
the ability of an arbitrator who has fundamental jurisdiction to
deal with the merits of a grievance on the grounds that the
manner in which the grievance was processed to arbitration is
defective pursuant to the provisions of the collective agreement is
subject to waiver......
In the result, Arbitrator Marcotte found that the Company had waived
its right to object to any procedural irregularity in the processing of the
grievance.
I agree with the above views of Arbitrators Weatherill and Marcotte that
the improper filing of a policy grievance is a matter of procedural
jurisdiction which can be waived and not a matter of fundamental
jurisdiction which cannot.
I appreciate the Hospital's frustration that the Collective Agreement has
a clear process for the filing of various grievances and this agreed upon
process was not followed in this instance. However, it allowed this
matter to be processed through to the arbitration hearing without
objection. It is simply too late to raise what would otherwise have been
a legitimate objection.
As noted above, there is a body of jurisprudence contrary to this
decision. However, with respect, I am convinced that a thorough review
of this matter, including close attention to the view of the Ontario High
17
Court in Re British American Oil (supra) leads to the finding that an
objection regarding the improper filing of a policy grievance is a matter
of procedural jurisdiction which can be waived.
For those reasons, in the circumstances of this case, I must find that the
Hospital has waived its right to raise this preliminary objection.
Accordingly, I ask counsel to contact my office for further dates for this
matter to proceed.
Dated in Toronto this 28th day of September, 2011.
Felicity D. Briggs
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