Loading...
HomeMy WebLinkAbout1983-0509.Snider.84-07-19Between: OPSEU~ (A.M. Snider) Before: IN THE MATTE~R OF AN ARBITRATION tinder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD For the Grievor: For the~Employer: Hearing: - and - Grievor The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer G.J. Brandt F. Taylor P.D. Camp Vice Chairman Member Member P.A. Sheppard Grievance Officer Ontario Public Service Employees Union J.P. Zarudny, Counsel Crown Law Office Civil Ministry of the Attorney General April 6, 1984 .-. I. _I -2- INTERIM AWARD The Grievor, A. M. Snider grieves that he has "been dealt with in a manner that contravenes Article 23 of the Collective Agreement by the denial of.appropriate compensation". He requests that he be compensated in accordance with Article 23 for the time period January 1, 1980 to May, 1982. Article 23 deals with the subjec,t of time credits while travelling and provides as follows: "ARTICLE 23 -- T1M.S CREDITS WHILE TRAVELLING 23.1 Employees ~shall be credited with all time spent in travelling outside of working hours when authorized by the ministry. 23.2 When travel is by public carrier, time will be credited from one (1) hour before the scheduled time of departure of the carrier .until one (1) hour after the actual arrival of the carrier at the destination. 23.3 When travel is by automobile and the employee travels directly from his home or place of employment, time will be credited from the assigned hour of departure until he reaches his destination and from the assigned hour of departure from the destination until he reaches his home or plxe of employment. 23.4 When sleeping accommodation is provided, the hours between eleven (11:OO) p.m. and the regular starting time of the employee shall not be credited. 23.5 When an employee is required to travel on his regular day off or a holiday listed in Article 47 (Holidays), he shall be credited with a minimum of four (4) hours. 23.6 All travelling time shall be paid at the - 3- employees' basic hourly rate or, where mutually agreed, by compensating leave." At the outset of the hearing, Counsel for the Ministry advised the Board of a preliminary objection concerning the arbitrability of the grievance:, In view of that objection no evidence was heard as to'the merits. However, Counsel for the parties advised the Board as to certain agreed basic facts which gave rise to the dispute and it is appropriate, subject to the caveat that the Board makes no findings thereon, to set those out in order to provide the contextual background within which the preliminary objection can be considered. The issue concerns the basis upon which the monetary value of employee's time credits is to be calculated. Since 3anuary of 1980 the Grievor had been permitted by the Ministry to accumulate time credits to which he became entitled under Article 23.3 rather than receive payment for those credits in cash at the time they were earned. This process continued until May of 1983 when the Grievor was advised by the Ministry that if he wished he could exercise his option to cash out his accumulated credits. The Grievor chose to exercise that option and, in due course, a chegue was issued to him. There is' no dispute between the parties as to the number of hours for which credit is to be given. However, there is a dispute as to the basis on which the calculation of the dollar value of his accumulated credits should be made. Article 23.6 5 I -4- states that the standard is the employee's basic hourly rate. The issue herein concerns the time at which that determination is 'to be made. The position of the Ministry is that the basic hourly rate should be taken as the rate in effect at the time that the credit was earned. ,;.Thus , credit earned in 1981 should, in the Ministry's view, be compensated for at the 1981 hourly rate and not at a 1983 rate. The position of the Union is that the intent of Article 23.6 is that employees are to be compensated either by way of compensating leave (in which case mutual agreement is required) or by way of pay in which case the appropriate basic hourly rate should be that in'effect at the time compensation is requested, that is, at the time the employee elects to cash in his accumulated credits. The preliminary objection advanced by the Ministry is based on the claim that the issue which this Board is called upon to determine in this'case was .the subject-matter of an earlier grievance involving a different employee,.one ~Robert,.Howes, -a grievance which was decided adversely to the Union at the second stage hearing in the grievance procedure and which was not referred to this Board for determination in accordance with Article 21.4 of the Collective Agreement. The consequences of this, in the submission of the Ministry are as follows: First, the earlier grievance must, by virtue of Article 27.11 of the Collective Agreement be deemed to be withdrawn. 7 . i ,\ -5- Secondly, the effect of such a withdrawal, (where it is not done by the Union on a "without prejudice": basis) is, in terms of its legal consequences, tantamount to a settlement or resolution of the issue arising in that grievance such that the Union cannot, at least during the life of the Collective Agreement, bring before this Board another grievance. involving substantially the same issue. The principle which.underlies the submission of the Ministry is well established in arbitration law. It is best expressed in the following passage from Re City of Sudbury v. CUPE, Local 207~ (1%5)lSL.A.C.4O$(P~ville, Co. Ct. J.): *The authorities are legion. that a board of arbitration has no jurisdiction to consider or, alte?znatively, that the grievor and his or her union representatives are barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of these cases proceed on the basis of estoppel and others on the principle of res judica~ta, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no iurisdiction to entertain such a second grievance (.see Re United Electrical Workers, Local 525, and Ferranti-Packard Electric Ltd. ~(2962) 12.L.A.C. 216, and Re United Steelworkers Local 2251, and Algoma Steel Corp. - (1964) Ltd. , 14 L.A.C. 315)." Later, the arbitrator, in quoting from another case, Mueller Ltd. and U.A.W. Local 456 (1969:12L;A.C.131 sets out the policy - behind this approach: -6- "The grievance procedure is designed to provide members of the bargaining unit and the union with a method of orderly processing their respective grievances . In order to avoid the expense inherent in the arbitration process the procedure provides. for bona fide efforts ,to be made by both the grievor and management.'to settle the dispute at various stages and'at various levels. It follows, therefore, that if the grievor and/or the union actually or impliedly accept the decision of management they should not be allowed to have second thoughts on the matter and re-process essentially the same grievance at a later date. If this were to be.allowed, management would never know whether, in fact, its decision had been accepted by the individual grievor or the union representing him, and management could be plagued and harassed in what would be a,blain abuse of the grievance procedure." These principles and the passages referred to above have been adopted by this Board in fte Cover, 256/80. In that case the Employer, as in this case, made a preliminary objection to arbitrability on the grounds that there had been a settlement of the grievance, which settlement constituted a final determination of the matter. The Board found that, on the facts, there had been a settlement, and having set out the passage from the City of Sudbury case (pages 4 and 5) concluded that the grievance was not arbitrable. -7- While the cases referred to us by Counsels for the Ministry support his position in general, they are of limited value in the instant case. First, 'in each of them the facts involved either an attempt by the same grievor to file a second individual grievance (usually where the first grievance had not been pro- cessed within the time limits) on the same issue IEe Ferranti Packard,(ISS2)12L.A.C.216 (Hanrahan); Ee Canadian Raybestos (Lane); Re Canadian Westinghouse,(%5)GL.A.C.282 (Fuller) I or an attempt by the Union to file a policy grievance raising the same issue which had been raised in a prior individual,grievance which had been time barred [Re Algoma Steel, (McAndrew, Co. Ct. J.). See also Re Steinbergs,(1970)2lL.A:C.137 (Hanrahan) I. In the instant case the prior grievance whose "settlement" is alleged by the Ministry to bar prosecution of this Grievance is an individual grievance of a different employee. Secondly, they do not appear to represent the majority view currently taken by arbitrators to issues of this kind. Essentially there appear to be two competing interests at stake. On the one hand there is the,interest in ensuring that there be an efficient 3 5 i ,- 8 - mechanism, for the resolution of disputes and that grievances, once raised and disposed of in some fashion or other, should not be the subject of re-litigation where the question is substantially the same. That is the view reflected in the City of Sudbury case. The other view is that which argues that where substantive rights enjoyed under a collective agreement have been arguably violated or denied sound industrial relations policy requires that an opportunity be afforded to the party who feels himself aggrieved to seek a binding determination of the question. (See Re Governing Council, University of Toronto (1975) 10 L.A.C. (2d) 417 (Adell)). Thus, in Re Longyear Canada Inc. (1981) 2 L.A.C. (ad) 72 (p.c. Picher) a policy grievance was held to be arbitrable notwithstanding the fact that four years earlier an individual grievance filed on the identical issue had been withdrawn. Similarly, in Re Nabob Foods Limited (1982) 2 L.A.C. (3d) 353 (Germaine), a number of job posting grievances which had been filed were withdrawn. However, one of those originally filed was not withdrawn and the Employer unsuccessfully challenged the arbitrability of the remaining grievance. The jurisprudential basis for refusing to entertain a substantially similar second grievance lies alternatively in the doctrines of res judicata or promissory estoppel. Frequently these two will merge where, for example, the acceptance by one party of the binding determination of a dispute, vis, that which constitutes the issue as res judicata, will serve as the foundation for a claim of promissory kstoppel. I r-?>& 9, ,,; - 9,. - The question for determination is what kind of conduct by a party to a collective agreement is necessary to establish either that the matter has been determined or that the other party is prevented from raising the matter afresh. A review of a number of cases would appear to indicate a determination by arbitrators to require more than conduct from which a mere inference cannot be drawn. Thus, in terms of estoppel, the conduct must be ambiguous or contradictory. Indeed in one case, Re - Longyear Canada, supra, even a statement by the Union President that "We don't have a grievance." at the time of the withdrawal of the earlier grievance, was not sufficient to estop.the Union from making the later claim on the identical issue. Analysed in terms of the doctrine of res judicata, arbitrators have required some clear indication that the parties have settled an issue in a way which they intend to be binding on them in the future. Thus even when a grievance has been settled by the parties in the grievance procedure, that settlement, whether on a "without prejudice" basis or:!not, will not necessarily bind the parties and constitute the issue res judicata between them. (Lake Ontario Portland Cement Company Limited (1963) 14 L.A.C. 37). For such to be the case the minutes of settlement must clearly so provide. (See Re American Motors (Canada) Limited (1964) 14 L.A.C. 422). Ian a number of cases it has been held that withdrawal or q-7. -i ; ,; '- 10 - abandonment.of a grievance, without more, is not sufficient to prevent a subsequent grievance from being filed. (See Re County of Paintearth(l973)3 L.A.C.(2d)439 (Newman); Re Gibraltar Mines:(I975) 8 L.A.C. (2d) 225 (Larson); Re City of LondonQ9'76)13 L.A.C.(2d) 213 (Hinnegan)) . These results are supportable on either the doctrine of res judicata or promissory estoppel. The act of withd.rawal or abandonment of a grievance is not a representation which is sufficiently unambiguous to create an estoppel; nor does it permit any conclusion that the parties are prepared to treat the matter as having been resolved or settled in such a way as to bind them in the future. When these principles are applied to the facts of this case,it becomes clear that there is no basis upon which we can conclude that the Union cannot noti bring this grievance. There is no evidence before us as to what happened to the Howes grievance other than that it was not processed to arbitration. Certainly there is no basis for concluding that the parties came to any express agreement which would constitute a binding settlement of the issue. Nor does the act of the Union, even if it be characterized as an abandonment of the grie,vance, on the authority of the cases referred to, estop~the Union from raising the matter in this grievance. In .view of this conclusion it is unnecessary for us to consider the question as to whether or not the Snider grievance raises substantially the same issue raised in the Howes grievance. If it does not there is clearly no basis for any objection. If - 11 - it does, for the reasons given above, the Union is still not barred from raising it. Consequently, we conclude that the Grievance is ' arbitrable and we dismiss the'.prel i minary objection. DATED at London, Ontario this 19th day of July, 1984. G.J. Brana‘t Vice Chairman g-G- ,’ .;I ,~‘,/ F. Taylor Member P.D. Camp Member