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HomeMy WebLinkAbout1982-0564.OPSEU.84-01-04ONTAG% CROWN EMPLOYEES GRIEVANCE SETTLEMENT -, BOARD IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (Clerks 6, General - And - -) Grievers The Crown in Right of Ontario (Management Board of Cabinet) Before: J.F.W. Weatherill P. Craven E.R. O'Kelly Chairman Member Member For the Grievor: R. Anand, Counsel Laskin, Jack & Harris For the Employer: L. McIntosh, Counsel Crown Law Office Civil Ministry of the Attorney General Hearing: November 14,. 1983 Employer INTERIM DECISION As 15 rktit+l in the Board’s lncerim Decision in i;hi:3 emoters ~idi.i~a i4 klarch iV83, this case involves a iarl!r number. oi’ indiviaual grievances. .Two of these at l,eac3 t , ic klas tie~d,, were "continuinq" grievances, and GhiLc IIU determination was made with ,respect to the otner cases, the issue of the correct rate to be paid wa:; n&i 1-0 be properly before tne Board in the cases of Szaio~~czay and Van Pelt and the matter was set down for rur.tncr. h,:arinq. AL i,lw tmrlLinued hear iIig, argument was heard wxti r~rsr,t~~:t Lg.8 ii preiLminar.y objection raised by the emp!.t)ycr Lo tne cllect that, at least in Mr. Van Pelt’s case - and the arqument would apply equally to most of the other cases before us - this Board would not have jurisdiction to grant the relief requested to the extent that such relief involved the enforcement of rights arising under previous collective agreements. Mr. Van Pelt’s grievance was filed, it appears, in 1982, during the term of the “current” collective agreement. (At least, there was a collective agreement in effect at the time the grievance was filed.) It requests relief in respect of 1979, 1980 and 1981, however, and at those tines, it is said, other collective aqreements were in force. Thi:: Board, it is arqued, would not have jurisdiction, under a grievance fileh under the 1982 -2- collective agreement, to grant relief in respect of alleged violations of previous agreements. This argument is advanced quite separately from any argument which may be made as to the “t.imeliness” of any grievance in terms of its filing pursuant to the terms of a collective agreement, although we should think that either argument would have similar implications with respect to any compensation which might be awarded. For the employees in question, the right to process claims under the grievance procedure arises either under a collective agreement or under The Crown Employees Collective Barsaininq Act. The Act permits the processing of certain claims “in addition to any other rights of grievance under a collective agreement”. The instant case does not appear to involve a claim of the sort referred to in the Act, but is rather one arising with respect to the application of a collective agreement, and there appears to be no doubt but that it is a claim of a sort which would, as a general matter, be arbitrable insofar as it involves a claim of right under the current agreement. The grievance procedure provisions of the “working conditions” agreement, which is a part of the -3- collective agreement between the parties (the agreement is set out in several parts, as will be seen), set out that it is, the intent of the parties “to adjust as quickly as possible any complaints or differences between the parties arising from then interpretation, application, administration or alleged contravention of this Agreement - - I’. This procedure does not contemplate the adjustment of complaints under other agreements. In the Red River School Division No.17 case, tlY72), 25 D.L.R. (3d) 106. Wilson, J., of the Manitoba Court of Queen’s Dench held that an arbitration board did have jurisdiction to arbitrate grievances arising out or an expired collective agreement. In that case, it appears that the proceedings to establish the board had begun before the agreement expired. The distinction is significant. In the course of reasons for judgment the Court stated as follows at p. 109: “Denial of jurisdiction rests on the argument that, the collective agreements under which the board was convened and under which the disputes arose having terminated, their effect is wholly spent. Hapless indeed, then, the plight of a teacher whose difference arises sometime in the afternoon of December 31st; and what if, say, a dispute arises touching her December salary, her earliest awareness of such grievance coming with receipt of a cheque for the wrong amount, on January 2nd?” There does not appear in that case to have been any question of the timeliness of the grievance under the grievance provisions of the collective agreement during whose term the grievance arose and the board was established. The case is thus authority (and precedents from the general law of arbitration were cited), for this proposition, that the mere fact of expiry of an agreement does not deprive a board establlshed under the terms of that agreement of jurisdiction it would otherwise have to decide matters arising out of that agreement. In the instant case the Board is asked to arbitrate a grievance arising under a current collective agreement, and as well, in effect, to arbitrate claims - not previously advanced as grievances (except by Mr. Szalonczay) - relating to agreements long since expired. That is not the situation with which the Court dealt in the Red River case, but it would appear to be virtually identical to that of the Goodvear Canada case, (1980), 28 L.A.C.(Zd) 196 (M.Picher), In describing the issue, the board emphasized: I’ - - that the issue is whether this board is properly constituted to hear the grievance in relation to the expired collective agreements. That is a question separate and distinct from whether the grievances should, having regard to delay, the conduct of the parties or I -5. any other factor, be found to be arbitrable by a board of arbitration properly constit~uted to hear them.” As the board in that case stated, “It is now ciehr Frl irnt,arii that a party to an expired collective qreement assertin? a grievance which arose during the curt-ensy of the cont,ract may be abie to have the grievance art,itrated notwithstanding that the grievance is filed after the agreement or its statutory extension ha s expired”. For this the board relied on Genstar glemicai Ltd&, Ci471?1 O.L.R.6.R. 835, and referred as weil to the Red RivE case, ~upra. In Genstar, the iintario Labour Relations board had dealt with the issue now before us. as it arose’in a matter before that board. and had said, refei’l-in? to the _In_ternationa-i Nickei case,ilSiOi 22 L.A.C. 266~ (Weatherilli: “In titernational Nickel - - an employee was attemptin? to bring a claim for entitlement under an existin? soilective acrreement which related to a claim arising under an expired one. In deI:idinq t.hat the emplepee~s <iaim was not arbitraJJle, the board quite properly concluded that the ciaim could only be raised (if at all) under the old agreement and that it could not be decided by a board of arbitration appointed under the new one. ” ‘The boat-d in the coodvear case considered that those cases properly reflected the “fundamental prin-- cipie that a bhard of arbitration can have no jurisdic- tion beyond the collective agreement” - or, we would -6- add, the statute - “under which it is constituted”. The board added the following remarks, equally pertinent to the instant case, and with which we agree: “In those cases where the action complained of can be characterized as a continuing breach of the current agreement, as distinguished from a single and spent breach of eith’ar the expired collective agreement or the current agreement. the board of arbitration can assert jurisdiction, but only insofar as the grievance relates to ongoing breaches of the current agreement.” In Goodvear, the board held that it was without jurisdiction to hear or remedy grievances arising under the two prior collective agreements. A similar holding is set out in the London Tavern case, (1981) 2 L.A.C. l3d) 411 tMacDowel1). The Clarke Institute case, (1982) 5 L.A.C. (3dl 155 (Beck), appears to be to the contrary. The board there read the Goodyear, and Genstar cases, as well as the policy of’ section 44 of The Labour Relations Act (requiring arbitration of disputes arising under a collective agreement), as “qivinq us jurisdiction to give a remedy for continuing breaches of collective agreements that date back to 1973“. In our respectful view, that decision is contradictory of the cases referred to. and we do not consider that it is correct. The cases, and the matter of remedial jurisdiction are, in our view, correctly dealt with in the dissenting opinion of -7- Mr..O’Byrne, at 6 L.A C. t3d) 131.141ff. For the foregoing reasons, it is our conclusion that to the extent the grievances before us assert violations of previous collective aqreements and seek remedies therefor. we are without jurisdiction to hear them. It may be that in terms of the practical result,~ this decision is tantamount to a decision that a claim for relief beyond a certain point is untimely, but the issue was put before us in the terms we have used and we have dealt with it accordingly. It may well be that in the course of dealing with the grievances which we have found to be properly before us. it will be necessary to have recourse to events which occurred during the terms of previous collective agreements, and to consider and interpret the terms of those agreements. That, however, would be for the purpose of interpreting and applying the current collective agreement and determining the issue before us. Subject to the foregoing, the preliminary objection as to the scope of our jurisdiction is allowed. In dealing with the employer’s objection, we ;< . . -a- l have ret’erred to the “current” collective agreement. It appeared in the course of argument, however, that there was an issue between the parties as to the identifica- tion of that collective agreement. It is acknowledged by both parties that there is a collective agreement in effect between them, and that there is only one such agreement in effect. The agreement, as we have indi- cated, is a complex one, and its terms are contained in several documents. What is referred to by the parties as the “master agreement” is a document entitled “collective agreement” and which is dated February 1, 1977. Article 3 of that aqremeent sets out the titles of some ten appendices, attached to and forming part of the agreement. Article 4 states that the parties have agreed to negotiate separately the matters covered in each of the appendices. The first eight appendicesdeal with “categories” of employees, Appendix II being that appropriate to the Clerical Services Category, the category in respect of which the claims in the institnt case arise. Appendices IX and X are of general application and deal with “Employee Benefits” and “Working Conditions” respectively. Each of these appendices, it may be said, is referred to familiarly as an “agreement”, or, at times, as a “collective -9- agreement”, so that reference is made to “the Clerical Services Category Agreement”, the “Employee Benefits Agreement” or the “Working Conditions Agreement” Article 4 of the “n.aster agreement” provides, as we have noted, for the separate negotiation of the matters covered in each of the appendices and article 4(b) provides that each appendix may be reopened for negotiation on certain notice prior to the expiry date of such appendix. Such renegotiated agreement is then deemed to be an appendix to the collective agreement and to form part of it in substitution for the appendix it replaced. Article 5 of the “master agreement” sets out the following with respect to the term of the agreement: b This Aqreement shall be in effect until the last date upon which an Appendix to this agreement expires provided, however, that for the purposes of Sections 2, 22 and 23 of The Crown Employees Collective Bargaining Act this Agreement shall operate for a term of two years, from January 1, 1977 to December 31. 1978, and shall be automatically renewed for periods of three years each unless either party gives ninety to one-hundred and twenty days ’ written notice to the other party prior to the applicable expiry date of its intention to amend or terminate this aqreement. -lO- Section 2 of The Crown Emplovees Collective Barqainins Act deals with applications for represen- tation rights and is not material to the instant case. Section 22 of the Act provides that either party to a collective agreement desiring to bargain with a view to the renewal of the agreement then in operation may give notice in writing to that effect “only during the period between the ninetieth and one hundred and twentieth days prior to the termination of the agreement”. Section 23 of the Act provides that where notice to bargain has been qiven, then except as altered by an agreement in writing of the parties, the terms and provisions of “the agreement then in operation” shall continue to operate until a new agreement is made. “Collective agreement”, it may be added, is defined in section l(l)(d) of the Act as “an agreement in writing between the employer and an employee organization covering terms and conditions of employment”. It is clear that the several appendices to the master agreement have been renegotiated from time to time. The current agreement affecting the clerical services category, dated March’ 22, 1982, is said to be for a term of two years. effective from January 1,. 19Li2 to December 31. 1983. The current agreement dealing with working conditions and employee benefits is dated December 17. 1982, and it too covers the period from -ll- January 1, 1982 to December 31, 1983. On the assumption that these current agreements have been negotiated in accordance with the provisions of article 4 of the master agreement and duly substituted for the appendices thereto, then it would appear that “the last date upon which an Appendix to this Agreement expires” has not been reached tat least, not as at the date of the hearing of this matter,, and that the master agreement is still in effect. It may be that “for the purpose of Sections 2, 22 and 23 of The Crown Emplovees Collective Bargaining Act” there was an “automatic renewal” of the agreement after December 31, 1978, and we note the assertion of counsel for the union that notice to bargain, apparently within the contemplation of article 5 of the master agreement, was given on September 30, 1981. If such notice was effective, and if it was also notice within the meaning of section 22 of the Act, then it may be that, by section 23 of the Act, the terms. and conditions of the agreement then in operation continue to operate. That would mean that the original master agreement, in effect from January 1,.1977, i.5 still “the collective agreement” in effect between ;;he parties. We make no determination of that question at this time, the facts not being agreed to, and there -12- being no evidence before us. Assuming, however, for the purposes of the present determination only, that the original master agreement is thus continued in effect, it must be said that what is continued in effect is in substance, merely a framework for collective bargaining. Such bargaining has certainly taken place, and it has resulted in agreements of substance which come, it may be noted, within the definition of “collective agree- ment” set out in section l(l)(d) of the Act. The “Working Conditions and Employee Benefits” agreement currently in effect is entitled “collective agreement”. and contains all of the provisions which one might expect to find in any collective agreement (save as to salaries, to which we will turn in a moment). even including a recognition clause and a termination clause. The current “category agreement” for the clerical services category is likewise titled "collective agree- ment". That agreement, however, deals only with salaries, first by way of certain general provisions Iincluding a termination clause), and then, in an appendix, setting out the salary rates to be in effect at certain times during the term of the agreement for the several classifications to which the agreement applies. For any category of employees, then, there has -13- been an agreement or agreements in effect from time to time dealing with their wages, working conditions and benefits. The substance of these agreements is what the parties and this Board have referred to in speaking of the series of “collective agreements” which has been in effect. Thus, in an earlier grievance involving a similar claim to those now before us, Mr. Szalonczay alleqed, according to the Board’s decision in case no. 443/80 (known as the “McLaren award” ) , “that he was entitled to receive a salary increase under the provi- sions of the 1579 collective agreement”. So too, in the “Prichard award” t526/81), the Board clearly sets out that what is involved in the case is, among other things, the reconciliation of “three separate collective agreements”, later specified as “the 1979 collective agreement”, “the 1980 collective agreement” and “the 1981 collective agreement!‘. The union was successful in those cases. The employer’s applications for judicial review did not succeed. Nothing in the arguments put to us in the instant case induces us to dissociate ourselves from the two previous decisions of the Board. For the purposes of the instant cases, it would be our view that there is one collective agreement in effect, and that its substance is set out in the “Working Conditions and Employee Benefits” agreement and (insofar as the instant cases are concerned). “Clerical Services Category” agreement. and further that this agreement, in resgect of all of its substantial pro- visions, is in effect from January 1, 1982 to December 31. 1983. That is the collective agreement under which the claims now before us (save as to those of Mr. Szaionczay, or of any other employee who may have filed grievances under previous agreements), arose, and under which we have jurisdiction, as set out in the first part of this award. At the outset of the hearing on November 14, 1983, counsel for the union stated the issues to be dealt with in terms of four questions. These, together with the answers or comments ue are now in a position to give, are as follows. 1) Does the Board have jurisdic- tion to interpret the 1979. 1980 and 1581 Clerical Services Cateqory Agreements ? The answer to that ques- tion, is,“no. except to the extent necessary to make determinations materiai to the cases properly before us”. ii) What are the correct rates of pay for 1982 for these two individuals? That is, it would appear, the issue of substance in these matters, and we await the representations of counsel with respect to it. The answer Tao the third question may be material to the disposition of this second one. 3) What is the effect if -15- any of the Board’s previous awards in Szalonczay’s case upon the determination of the current rate of pay for Mr. Van Pelt in the years 1979 to 1981? This too remains to be determined. While the matter of entitlement to compensation for Mr. Van Pelt in respect of the years 1979 to 1981 may now be moot, the determination of the proper rate f~or those years may be material to the determination of the rate payable under the current agreement. 4) What is the extent of the relief avail- able? That matter has, in part at least, been dealt with by our decision, set out above, that we do not tave jurisdiction in respect of grievances arising under the previous collective agreements. Any remaining issue is to the extent of relief available to the qrievors should their grievances succeed, may be dealt with at the appropriate time. The matter will continue on the dates of January 5 and 16, 1984, as already arranged. - 16 - DATED at Toronto, this 4th day of January,, 1984. tihairman P. Craven Member E.R. O'Kelly Member