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HomeMy WebLinkAbout1985-0940.Whibley.87-05-14i -i;~: i .,-. “. : 0940/85 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OPSEU (M. Whibley) -and- Griever The Crown in Right of Ontario Employer (Ministry of Transportation and Communications) B&fore: J. Gandz Vice-Chairman I.~Freedman Member A: Stapleton Member For the Griever: .T. Hadwen Counsel Cavalluzzo, Hayes 8 Lennon For the Employer: M. B. Furanna Staff Relations Advisor Ministry of Transportation and Communications Hearing Date: April 15, 1987 -2- DECISION This matter arises from a preliminary objection by the Employer thatthe grievor did not discuss his complaint with his supervisor before filing his grievance. This is an alleged contravention of Article 2'7.2.1 of the Collective Agreement which states: An employee who believes he has a complaint or a difference shall first discuss the complaint'or difference with hi's supervisor within twenty (20) days of first becoming aware of the complaint or difference. The following facts were agreed to by the parties: The grievor applied for and was unsuccessful in Competition 6-85-54 for a Maintenance Crew Foreman/Woman, Urban Freeways classified at the Highway General Foreman/Woman 1 level. The grievor and three other candidates were interviewed on September 17, 1985. The grievor was officially notified, by letter dated September 30, 1985, that he had not been the successful candidate. He had been notified verbally prior to that date by his supervisor Mr. L. Harney. The successful candidate, Mr. R. St. John, began his new duties on October 10, 1985. The grievor filed a grievance on October 7, 1985 with his supervisor claiming a violation of Article 4.3 of the Collective Agreement. -3 - Mr. Harney responded to the grievance in writing on October 9, 1985 stating that the Employer considered the grievance to be invalid because the grievor had failed to comply with the complaint step outlined in Article 27. The grievance was filed at the second stage by the griever-s representative on October 17, 1985. The Employer sent the grievance back on October 31, 1985 again stating that it was considered to be invalid for non-compliance with Article 27. The grievance was filed with the Grievance Settlement Board on November 7, 1985 and a request for a hearing was made. The Employer notified the Union on February 27, 1987 that it would be maintaining its position and raising a preliminary objection before the panel of the Board. Counsel agreed to proceed only with the objection at the March 26, 1987 hearing, ask that the Board decide the issue prior to hearing the merits of grievance,and, to provide written reasons. Mr. Whibley, who had never been involved in a grievance before during his 24 years with the Ministry of Transportation and Communications, testified that, on the day in question, he was sitting in the.cafeteria with a group of other employees. His' supervisor, Mr. Harney, approached the group to advise them that Mr. St. John had been awarded the job -of Maintenances Group Foreman. Only Mr. St. John and Mr. Whibley had been competing for this job. ,, i -4- Following this news, Mr. Whibley testified that he went about his normal duties for the rest of the day. During the day he was in contact with his steward, Wes Knowlton, who advised him to file a grievance. At the end of the day, while waiting for a ride home, Mr. Whibley testified that he spoke to his foreman and said that he was going to file a grievance. Mr. Harney apparently responded "That's up to you." The following day Mr. Whibley went to see the union representative, Mr. Rosen, who filled out the grievance form. Mr.. Rosen asked Mr. Whibley if he had discussed the matter with his supervisor, to which Mr. Whibley said "yes". For medical reasons, Mr. Harney was unable to testify with respect to this matter and will not be able to do so for the foreseeable future. All we have to ;go on is hearsay testimony offered by Mr. Thibeault, a personnel officer. According to Mr. Thibeault, Mr. Harney brought the.grievance to him stating that there had been no discussion prior to.its filing. However, Mr. Thibeault's testimony was that Harney had told him that Whibley had spoken to him before leaving for a seminar that day and had advised him that the Union was suggesting that he should grieve the denial of promotion. This is not substantially different from Mr. Whibley's story. Certainly there was come form of discussion between Whibley and Harney before the grievance was actually filed. The Employer asks this Board to do three things: ,. ,.,_ . Find that Article 27.2.1. is mandatory rather than directory. In effect this would mean that failure to "discuss" would bar anemployee from pursuing a grievance to later stages of the grievance pro- cedure. . Find that a "discussion" means something more than merely advising that a grievance will be filed and, - 5- in fact, requires a statement of complaint in some detail. . Find that Mr. Whibley did not "discuss" his complaint with Mr. Harney before filing a grievance. In contrast, the Union asks the Board to find that the complaint was discussed but that, in the alternative, discussion is directory rather than mandatory. For the Employer's objection to be overruled, it is only necessary to find that there was some discussion. We are satisfied, on the basis of both Mr. Whibley's and Mr. Thibeault's testimony, that some form of discuss!ion took place before the formal grievance was filed. On the basis of Whibley's direct testimony, he told his supervisor that he was going to file a grievance. Given that he'had been just turned down for a promotion that day - in a rather public and~possibly humiliating fashion - there could have been absolutely no doubt in Mr. Harne~y's mind what Whibley was upset about. The fact that the supervisor declined further discussion, by saying "That's up to you" ended the discussion. Mr. Harney stated to Mr. Thibeault that Whibley had indicated, before leaving work that day, that he would be filing a grievance. _ What else could Whibley have done? He had initiated discussion and his supervisor declined further involvement. To'. suggest, as the Employer has in this case, that there was some further requirement to pursue discussion in the face of such indifference, is to impose an absurd onus on the grievor. It takes two to tango. If Mr. Harney had responded with "What's on your mind?" or "Come talk to me in the morning about it" that might have been a different matter. But he was unresponsive and, in our view, no further "discussion" would have been useful. Furthermore, there is nothing in the Collective Agreement to -6- suggest that the griever is required to pursue the matter through more "discussion". Therefore, on the facts of, this case, the Employer*s preliminary objection is denied. However, the issue of the "mandatory" or "directory" nature of Article 27.2.1 was raised by the Employer and deserves some comment. The Employer argued that the use of th& phrase "shall first discuss", coupled with the placement of this step after the general intent of the grievance procedure "to adjust as quickly as possible any complaints or differences between the parties..." and before the formal grievance procedure steps, makes it mandatory. There is considerable jurisprudence dealing with the question of mandatory and directory p;rovisions in collective agreements and at least the relatively early jurisprudence has : been extensively summarized and reviewed by Schiff in & Municipality of Metropolitan Toronto and Toronto Civic Employees' Ufiion, Local 43; (1973). 3 L.A.C. (2d). 126. Relevant sections .of this case are reproduced below. ” Quite clearly,, if the provisions of a particular collective agreement properly interpreted bar further consideration of a grievance when B party’s failure to observe home time-limit hk been established, the arbitrator must summarily dismiss the grievance no matter what the substantive merits of the griever’s complaint. R. v. Weiler et al., Ez p. Hoa? T?-&tispo~t Ltd., [1968] 1 O.R. 705, 67 D.L.R. (Zd) 484, affd 4 D.L.R. (3d) 449, [1969] S.C.R. 634, sub nom. General Tmck Drivew’ Union, Local 938 et al. v. Hoar Transport Co. Ltd. Adopting terminolon applied by Courts when they interpret analogous requirements in statutes, arbitrators have called such time- limit “mandatory”. E.g., Re U.E.W., Local 523, and Page-Hel- sey Tz6be.s Ltd. (1363), 14 L.A.C. 106 (Reville) ; Re U.E.W., Local 504, and Canadian Westinghozrse Co. Ltd. (1963), 14 L.A.C. 139 (Laskin) ; Re Toronto Civic Employees Union 43, and Toronto Parking Azltho?itu (1966), 17 L.A;C. 37 (Ar- .thurs) ; Re Nwthewz EZectkEmpZo~ees’ Ass’n and Northew. Electtie Co. Ltd. (1967), 17 L.A.C. 367 (Kennedy) ; Re C.U.P.E., Local 167, and City of Hamilton (1967), 18 L.A.C. 96 (Hanrahan) ; Re U.S.W., Local 606.2, and Union Carbide Canada Ltd. (1968), 19 L.A.C. 412 (O’Shea); Re U.S.W., Local 6969, and &ion Carbide Canada Ltd.; Gas ‘P?‘odzrcts (1969), 20, L.A.C. ‘74 (Adell) ; Re Tobacco Workers Int’l Union, Local 338. and Imperial Tobacco Co. (Ontario) Ltd. (1969), 20 L.A.C. 310 (Shime) ; Re U.S.W. and Construction Products Inc., Canadian Diuision (1.970), 22 L.A.C. 125 (Brown) ; Re Int’Z Union of Elect&al Wol‘lcers, Local 549. - 7 - and Sylvania Elect& (Canada) Ltd. (1972), 24 L.A.C. 361 (Simmons). Recently, in Re Valade and Eberlee [19721 I O.R. 652, 24 D.L.R. (3d) 38, the Court of Appeal for Ontario authoritatively invoked the label to characterize stringent requirements for notice set out in certain statutory regula- tions. The arbitrator’s duty here to dismiss the grievance is part of his overriding duty to apply the provisions of the COG- lective agreement, and to avoid amending or altering them. Union Carbide Canada.Ltd. V. Weiler et al. (1968)) 70 D.L.R. (Zd) 333, [1968] S.C.R. 966. See Port Arthur Shipbuilding Co. IJ. Arthum et al., (L968), 70 D.L.R. (2d) 693, l-19691 S.C.R. 85. Equally, if the provisions of a particular collective agree- ment properly interpreted do not bar further consideration of a grievance when some time-limit has been exceeded, the nrbi- trator is bound to determine the merits notwithstanding the defect. Again, adopting terminology applied by Courts in stat- utory interpretation to distinguish mandatory requirements, many arbitrators have called such time-limit “directory”. EJ., Re U.E.W.. Local 504, a?~~ Canadia?~ Westinghouse Co. Ltd., supra; Re kt’l Longslto?.eme?i’s Assoc., Local 18i’9, and Ha&- ton Terminal Operators Ltd. (1966), 17 L.A.C. 181 (Ar- thurs) ; Fe C.U.P.E., Local 167, and City of Hamilton, sl‘pra; Re Tobacco Wo?%ers I.nt’l Union, Local 338 a& flnpetial Tobacco Co. (Ontario) Ltd., wpra; Re fttt’l lJxion of Electrical Wo~~lws, Local 549, and S~lvw~ia Electric (Can- ada) Ltd., SZL~T(L. This label has reoently been authoritatively applied by the Court of Appeal for Ontario in Re Lincoln County Roman Catholic Separate School Board and Buchler et aJ., ,[19’72] 1 O.R. 854, 24 D.L.R. (3d) 398, to characterize the less stringent effect of a time period set out in a statute within which a 1Minister of the Crown was called upon to act. The arbitrator’s duty here to determine the merits is not dif- ferent from his duty to abstain when the.violated provision is mandatory: the duty in both instances flows from his overrid- ing obligation duly to apply the provisions of the collective agreement. Nevertheless, a qualification upon ,his duty to proceed arises when, despite the silence of the collective agreement about the consequences of default, the defaulting party’s delay has beenunreasonably extended or has preju- diced the opponent. E.g., Re U.E.W., Local 504, and Canadian Westinghouse Co. Ltd., supra; Re I&l Long&xemen’s Assoc., Local 1879 and Hamilto?? Terminal Operators Ltd., szqna; Re ,I C.U.P.E., Local 167, and City of Hamilton, supw See Re Ot- tawa Newspaper Guild, Local 205, and The Ottawa Cit,izen, ‘Cl9661 1 O.R. 669, 55 D.L.R. (Zd) 26, (Ont. H.&I.). In the analogous context oft applying directory provisions in statutes, in Re Lincoln Coxnty Roman Catholic Separate School Board and eztchler et al., supra, the Court of Appeal for Ontario has confirmed the qualification of factual preju- dice caused by the delay. -a- In view of many arbitrators, unless some provision of the particular collective agreement specifically provides that fur- ther consideration of a grievance is barred upon a party’s faii- ure to honour a time limitation, the limitation is merely direc- tory. E.g., Re Int’l Long’showmen’s Assoc., Local 187.9, and Hamilton Twminal Opwators Ltd., supra: Re C.U.P.E., Local 167 and City of Hamilton, sxpra; Re U.S.W., Local 6%?S, awl Union Carbide Canada Ltd., szqra; Re Tobacco Workers Int’l Union, Local 338, and,Imperial Tobacco Co. (Ontario) Ltd,, supve; Re Int’l Union of Electrical Workers, Local 549, and S$vania Electric (Canada). Ltd., supra. The very recent decision of the Divisional Court in Re United Glass and Ce- ramic 5VorkeTs of North. Ame?ice, Local 246, azd Dominion Glass Co. Ltd. et al. (1973), 73 C.L.L.C., para. 14, 162 (now on appeal to the Court of Appeal for Ontario), gives much support to this position. Other arbitrators, who have not demanded language of such crystal clarity, have found a bar implied from provisions in particular collective agreements rendering a party’s conduct within a certain time-limit a con- dition precedent to further consideration of the grievance. E.g., Re U.A.W., Local 439, alzd Massey-Fergwou Ltd. (1959). 9 L.A.C. 269 (Fuller) ; Re US’.5V., and Cotrstnrction Products Ixc., Canadian Division, etrp~a. See Re U.S.W., Local 6962, ~~~ ‘I.axd lJni&l Carbide Canada Ltd. (1967), 18 L.A.C. 74 (Weiler), quashed on other g~rounds, Union Carbide Canada Ltd. 2). Weiler et al., snpra. But on one matter almost all arbi- trators have agreed: the mere presence of the word “zhall” in provisions directing conduct within the times limited does not of itself render the time periods mandatory. E.g., Re. U.E.W., Local $04, and Canadian Westinglrouse Co. Ltd., supra; Re Int’l Longshoremen’s Assoc.; Local 1879, and Hamilton Tewni- nal Opewtol’s Ltd., supre; Re C.U.P.E., Local i67, and Cit,U of Hamilton, szrpra; Re Tobacco 5Vovker.s Int’l Vniou, Local 338. .sA and Imperial Tobacco Co.’ (Ontario) Ltd., supra; Re Int’l Union of Elect&z2 Wo?,kers, Local 649 and S~lvaxia Electric (Canada) Ltd., sxpla. In Re V&de and Ebel’Iee and the B~chler case, the Court of Appeal for Ontario has considerably clarified these matters. AS we understand the reasons for judgment~read together, the mere presence of the word “shall” standing alone in a atatu- tory provision directing certain conduct, or directing it within a certain time, does not demand judicial determination that the direction is mandatory; where the word appears, what controls the determination is~ the factual consequence of the default to one or both parties under the particular statutory~ scheme. In Bzrcirler, since no argument was made that the par- ticular default had caused harm to the party pressing it, the Court characterized the atatutory’direction as directory. In Re V&de and Eberlee, in contrast, the Court held tha~t the direc- tion was mandatory because, under the scheme of statutory regulations,, the default would clearly harm the objecting party. Analogizing to the task of arbitrators, this board takes from Re V&de aiZ%be?lee and BuchZer tmo lessons. First of all, there is no magic in the word “shall” when it appears in those provisions of a collective agreement governing time- limits in the grievance procedure. Secondly, whether a partic- ular time-limit is mandatory or directory depends on the proper interpretation of the yhole grievance procedure set out in the particular agreement. - 9 - It is quite clear in reviewing this jurisprudence, that the word "shall" does not, in and of itself, make a provision mandatory. Two additional factors enter into this consideration; the presence or absence of language specifying the consequences of non-compliance with the provision and the factual consequence of the default to one or both parties. While Article 27.15 states that "the Grievance Settlement Board has no jurisdiction to alter, change, amend or enlarge any provision of the Collective Agreement", we note that there ,are no explicit consequences mentioned of failing to "discuss" complaints. In citing the Nabi case (6/77 and 8/77), the Employer notes that, in a dissent, Mr. Cochrane (a member of the Board) characterizes Article 30.2 (equivalent to 27.2.1 in this agreement) as mandatory because it has fixed time limits. With respect to Mr. Cochrane, we believe that he has erred in his interpretation of what is mandatory. It is the explicit consequences of contravening a provision which makes it mandatory, not that some time limits are built into that provision. In the instant case,. there can have been little doubt what Mr. Whibley was upset about and we can see no way in which the Employer could have been prej.udiced buy any lack of substantive discussion. Furthermore, the only party which might have been prejudiced by this situation is the grievor whose grievance has not been processed for eighteen months. While there is no doubt some value to discussing complaints before a formal grievance is filed, this may not always be possible. For example, .when one party wishes to discuss and another does not want to do so. Since~ "discussion" is quite clearly something that two or more parties must engage in, it would lead to absurd consequences if we were to rule that absence of such discussion prevents a grievance from being processed further since all one party would have -to'do is discourage i; discussion by any of a variety of means. Therefore, we find that Article 27.2.1 is directorv- Dated at London, Ontario, this .lGlth. day Of May, 1987. r , Israel Fr&dman Member A. Stapleton Mei;lber