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HomeMy WebLinkAbout2012-4768.Union.13-07-16 DecisionCrown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Fax (416) 326-1396 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 Téléc. : (416) 326-1396 GSB#2012-4768 UNION#2013-0248-0009 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) Employer BEFORE Ken Petryshen Vice-Chair FOR THE UNION Craig Flood Koskie Minsky LLP Counsel FOR THE EMPLOYER Peter Dailleboust and Felix Lau Ministry of Government Services Legal Services Branch Counsel HEARING May 8, 2013 - 2 - Decision [1] The Union has referred a number of grievances to the Grievance Settlement Board (“the GSB”). The series of grievances relate to a health and safety work refusal and work stoppage that occurred at the Hamilton-Wentworth Detention Centre between August 14 and September 11, 2012 (hereinafter referred to as “the HWDC events”). Some of the grievances are individual discipline grievances. The majority of the grievances can be described as “no work, no pay” grievances. [2] The HWDC events first led to proceedings at the Ontario Labour Relations Board (“the OLRB”). In the OLRB proceedings, the Union and employees asserted that there was an ongoing health and safety work refusal while the Employer took the position that the employees were participating in an unlawful strike. The dispute was resolved by the execution of a Memorandum of Agreement and Return to Work Agreement dated September 11, 2012 (“the Memorandum”). One paragraph of the Memorandum addresses the matter of discipline for the HWDC events. It reads as follows: 8. The Employer can impose discipline up to a cap of a 2 day suspension for all correctional officers (list of effected employees to be generated by the parties) for all hours not worked associated with the HWDC events and/or for their refusal to follow orders between August 14 to the date of the Agreement. For greater clarity, terminations will not be imposed by the Employer. The parties agree that the Union may file a grievance challenging such discipline imposed by the Employer and that a Vice-Chair of the Grievance Settlement Board will duly hear the dispute in accordance with the collective agreement between the parties, if such a grievance is filed. [3] The Employer did suspend correctional officers for their involvement in the HWDC events. Some were suspended for two days while the vast majority of them were suspended for one day. Pursuant to the Memorandum, the Union challenged the suspensions by - 3 - filing a Union grievance dated March 22, 2013. The Union grievance was referred to the GSB on March 25, 2013. The Employer takes the position that the Union grievance is untimely. In response to this objection, the Union claims that the timeliness provisions contained in the Collective Agreement do not apply to the Union grievance. This decision only addresses the issue of whether the time limits set out in the Collective Agreement apply to the Union grievance dated March 22, 2013. Counsel made oral submissions on this issue based on agreed facts. [4] The focus of the submissions was essentially on the meaning of the following words in paragraph 8 of the Memorandum – “The parties agree … that a Vice-Chair of the Grievance Settlement Board will duly hear the dispute in accordance with the collective agreement…” Although both counsel referred to some other features of the Memorandum, particularly the preamble and paragraph 13, I am satisfied that these sections are not particularly helpful in determining what the parties intended by the words they used in paragraph 8. [5] The Union takes the position that paragraph 8 of the Memorandum gives the Union a stand alone and independent right to have its grievance heard by the GSB without being subject to the procedures in the Collective Agreement for the filing of grievances, including those relating to timeliness. It claims that the only procedures that apply to the Union grievance are the substantive ones which relate to the conduct of a hearing. Union counsel argued that this meaning is clear from the words – “a Vice-Chair of the Grievance Settlement Board will duly hear the dispute…” He submitted that this language means that the dispute about discipline concerning the HWDC events will be heard on the merits once the dispute is triggered by the filing of a Union grievance. Counsel pointed to the differences in the Collective Agreement when compared to what is set out in paragraph 8. Under the terms of the Collective Agreement, - 4 - the Employer is not limited to a 2 day suspension cap, discipline is to be addressed by individual grievances and a Union grievance is designed to deal with broad policy issues, not individual discipline. In contrast, paragraph 8 of the Memorandum does contain a 2 day suspension cap. Counsel noted, more importantly, that paragraph 8 gives the Union a right to grieve individual discipline and that there are no filing procedures in the Collective Agreement for such a grievance. Counsel submitted that it is not appropriate to apply procedures in the Collective Agreement designed for the filing of individual and Union grievances to the right of the Union to challenge individual discipline as created in paragraph 8. Counsel also argued that while creating a new right for the Union in paragraph 8, the parties did not specifically include in paragraph 8 a grievance procedure, time limits or a penalty provision that would govern the Union grievance challenging individual discipline. Counsel submitted that it would be improper to interpret the words in paragraph 8 as including such provisions, particularly a timeliness requirement, when the parties could have included such provisions in paragraph 8, but elected not to do so. [6] Union counsel also submitted that there is other language absent from the Memorandum worth noting. He submitted that if the parties had intended the timeliness provisions in the Collective Agreement to apply to the Union grievance filed pursuant to paragraph 8, they would have used such words as – “The Union grievance shall be processed in accordance with the grievance procedure in the Collective Agreement.” Counsel submitted that the absence of such words in paragraph 8 is support for the Union’s interpretation. [7] Union counsel argued that the words “in accordance with the collective agreement…” are not all encompassing and must be examined in the context of the words that - 5 - precede them - “will duly hear the dispute…” He notes the prescriptive language has a mandatory component. He submits that in this context the words “in accordance with the collective agreement…” are intended to reference only the substantive provisions that apply to the hearing of a dispute over discipline, such as the just cause provision. Counsel referenced Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469 (Div. Ct.) and the line of cases that followed it to illustrate an arbitral recognition of the distinction that exits between provisions that relate to the arbitration of grievances and those that govern grievance procedures. [8] In response to a question from the Vice-Chair about whether the parties likely intended to give the Union the right to file the Union grievance many years after the correctional officers had been disciplined, Union counsel indicated, among other things, that the parties would know that the doctrine of latches would operate to protect the interests of the Employer in the event there was excessive delay in filing the Union grievance. Counsel noted that the delay in this instance was not excessive. It is on the basis of these thoughtful submissions, which I have simply summarized, that the Union asserts that I should duly hear the Union grievance in accordance with paragraph 8 of the Memorandum, without regard to the timeliness objection. [9] In addition to referring to section 4:2110 of Brown & Beatty’s, Canadian Labour Arbitration, Union counsel relied on the following decisions: Ontario Public Service Employees Union v. Ontario (Management Board of Cabinet), 2004 CanLII 35933 (ON LRB); Greater Essex County District School Board v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 552, 2012 CanLII 482 (ONCA); Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd.,(supra); Service Employees International Union, Local 204 v. Leisureworld Nursing Homes - 6 - Ltd., [1997] O.J. No. 4815 (Ont. CA); James Bay General Hospital v. Public Service Alliance of Canada, [2004] O.J. No. 4666 (Div. Ct.); Ontario Public Service Employees Union v. Ontario (Ministry of Attorney General) (Johnston Grievance), [2010] O.G.S.B.A. No. 8 (Dissanayake); Ontario Public Service Employees Union v. Ontario (Ministry of Community Safety and Correctional Services) (Samsone Grievance), [2010] O.G.S.B.A. No. 179 (Petryshen); and, Re London Tavern and International Beverage Dispensers’ and Bartenders’ Union, Local 280 (1981), 2 L.A.C. (3d) 411 (MacDowell). [10] Employer counsel made two general submissions in support of the position that the timeliness provisions of the Collective Agreement apply to a Union grievance filed under paragraph 8 of the Memorandum. Firstly, he submitted that the normal meaning of the plain words “duly hear the dispute in accordance with the collective agreement” is that all of the procedural terms of the Collective Agreement are applicable. Counsel argued that there are no words in paragraph 8 which clearly indicate that the timeliness provisions of the Collective Agreement are not applicable. Secondly, counsel argued that the Union’s interpretation leads to an extraordinary and unreasonable result that could not have been intended by the parties. Counsel submitted that both parties were interested in resolving the issues arising from the HWDC events with some dispatch and they would not have agreed to an open ended process for the filing of the Union grievance. Counsel argued that the language the parties used in paragraph 8 is not unusual and simply means that the GSB with hear the dispute in accordance with all of the Collective Agreement provisions if a Union grievance challenging the discipline is filed. Counsel argued that there is no reason to interpret the words “in accordance with the collective agreement…” as encompassing only substantive procedural terms and not the procedures that would apply to the filing of the grievance, without a clear indication that this is what the parties - 7 - had intended. He submitted that there is no clear indication in paragraph 8 of the Memorandum that the parties intended to exclude the application of the Collective Agreement’s timeliness provisions. [11] In addition to sections 4:2000 and 4:2100 of Brown & Beatty’s, Canadian Labour Arbitration, Employer counsel relied on the following decisions: Brinco Mining Ltd. (Cassiar Resources Division) v. United Steelworkers of America, Local 6536, [1984] B.C.C.A.A.A. No. 191 (Hope); Re British Columbia Public School Employers’ Association and B.C.T.F. (2011), 203 L.A.C. (4th) 210 (Taylor); and, Re Southern Railway of British Columbia Ltd. and C.U.P.E., Local 7000 (2010), 198 L.A.C. (4th) 283 (Germaine). [12] There is no dispute about the interpretation principles that are to be applied in order to discern the intention of the parties when they crafted paragraph 8 of the Memorandum. I have considered the relevant words the parties used in paragraph 8, in light of the paragraph as a whole and in light of the Memorandum as a whole and its purpose. The words in paragraph 8 are to be given their normal or ordinary meaning unless it is clear from the context that the parties expressed an unusual or different meaning. [13] It is a trite but nonetheless a basic principle that the parties are bound to the terms of their Collective Agreement unless they have agreed not to be bound by one or more of its terms. The Collective Agreement contains procedures for the filing and processing of different kinds of grievances, including timeliness provisions. One would expect that the relevant timeliness provision in the Collective Agreement relating to the filing of a Union grievance would apply to any Union grievance unless the parties have agreed otherwise. The central issue - 8 - in the instant case is whether the parties agreed by the words they used in paragraph 8 of the Memorandum that the timeliness requirements contained in the Collective Agreement did not apply to the Union grievance dated March 22, 2013. After reviewing the relevant language in paragraph 8 and after considering the submissions of counsel, including the decisions they referred me to, I am satisfied that the parties did not intend to exclude the application of the timeliness provisions in the Collective Agreement for a Union grievance filed pursuant to paragraph 8 of the Memorandum. My reasons for this conclusion are briefly set out below. [14] As Union counsel emphasized, the parties agreed in paragraph 8 that the Union could file a grievance challenging the discipline imposed by the Employer and that this is a right not available to the Union under the Collective Agreement. The Union goes on to suggest that there are no filing procedures in the Collective Agreement that apply to this unique grievance and that the parties did not incorporate any such procedures into paragraph 8. While it is clear that the parties created the right for the Union to file a Union grievance to challenge individual discipline in paragraph 8, it is incorrect to suggest that there is not a procedural provision in the Collective Agreement to cover such a grievance. In my view, the fact that the Union grievance agreed to in paragraph 8 can deal with individual discipline does not mean that the procedural provisions in the Collective Agreement that apply to Union grievances are inapplicable. These provisions would only be inapplicable if the parties clearly indicated that they did not apply and the creation of a right for the Union to file a Union grievance over individual discipline, by itself, is not a sufficient indication of such an intention. It follows that it was not necessary for the parties to include in paragraph 8 some procedural requirements for dealing with the Union grievance because those requirements are already delineated in the procedural provisions in the Collective Agreement. - 9 - [15] By agreeing that the GSB “will duly hear the dispute…” does not mean that a hearing will be held on the merits of the Union grievance irrespective of any other considerations. These words merely indicate that the parties agreed that the GSB will be the forum for addressing the dispute triggered by the filing of the Union grievance. These words then also do not lead to the conclusion that the phrase “in accordance with the collective agreement…” references only substantive provisions relating to the conduct of a hearing. The words “will duly hear the dispute in accordance with the collective agreement…” do not indicate that the parties intended to make a distinction between the different kinds of procedural provisions in the Collective Agreement. There is simply no indication in the words the parties used in paragraph 8 to suggest that they intended that the time limits in the Collective Agreement would not apply to a Union grievance filed pursuant to that paragraph. [16] As noted previously, the Collective Agreement provides the terms that govern the legal relationship between these parties. The parties can enter into agreements that have the effect of amending the terms of their Collective Agreement. Given the central role of the Collective Agreement, a dispute about whether the parties agreed to alter a provision of the Collective Agreement must be assessed carefully to ensure that the parties did intend to alter such a term. These sophisticated parties would have had little difficulty in constructing clear language to indicate that they did not want the timeliness provisions to apply to a particular grievance. The language in paragraph 8 falls short of indicating such an intention. - 10 - [17] For the foregoing reasons, I find that the timeliness provisions in the Collective Agreement apply to the Union grievance dated March 22, 2013, filed pursuant to paragraph 8 of the Memorandum. Dated at Toronto this 16th day of July 2013. Ken Petryshen, Vice-Chair