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HomeMy WebLinkAbout1982-0070.Pelletier.82-07-21IN T:iE h!ATTER OF AN ARBITRATIOh’ 3nde: THE CRIEV.ViCE SE?TLE?dENT !?OOARZ Between: Before: For the Grikvor: For the Employer: Hear&: CsLS5.C (X. Pe!:etier) ano The Crsw in Right cf c’nrxio (Jijuor Control Bo:r3 3i ;)ntirio! ^ - -’ -..~iu:c)‘eT J.R.S. ?richarti Vice Chair-z !.J. Thcmson !vkmber .i.C. Sta$eton ~Slembe:~ E. Shiimn iennor., Cc-r.s& Golden, Levinson R .j. Drrnaj, Counsel Hicks, Slcriey, Hamii;x, Stewar: 1: S<S:ie IGle 2 2, 10s: ,-. . ‘I F I -?- INTERIM AWARD In this case, the zrievor. Rager Pe!lecier yleves IY~CI ne -55 un:usrly disciplined for wearing blue jeans to work at the 1L6r3 s::re u-?.tre he is employed. !: partim!ar. he alleges :I:at he receiver .a dicciplinary warning in Janzr::, 19Si. a&king ?im :;k: if he ‘i~ere to ~i?;r bi-e jeans again he woulc receive a suspension. Se cia!~: ina: :-.s ’ *arning was without just ca:ie. .A; the outset of :ae hearing the eSmn-,loyer entered 5 ;:elim!r:r:~ objection to the arbitraoili:? af the matter and reoues., -ad wr::ren reas:?s on the issue of arbitrabili? ,oricr to proceeding tc hear Ce evide:.:?. iIi:er hearing argument :n the %.sue of arbiirinility s;d on :?e appropriateness of adjourning to prepare written reasons. the 6csrd cocluded that we should acjxrn to prepare these reasons. In sd:itisn. ‘ie imited counsel to submit written argument on one aspect ,-i me :is;e be:cre us. The employer’s preliminary objection cannot ;roperly 5e considered apart from the factual and arbitral background :a this case. Therefore, in this award w’? have summarized the backgrounc to tne case prior to evaluating the legai arguments made by counsel. The background :f the case as it u~as exoiained to is by cc~xe! a5 as was set out in an earlier decision of this Beard dea;.-.g xi:? :?e scene issue Sullivan, 573/S: .Keather:il)) is as :~llows: ‘1 .)J c -3- 1. In July I974 the employer published,certain dress require- ments including a provision requiring: “Trousers - clean and pressed”. The employer understood this proP&ition to encompass blue jeans. 2. fin April 1981 an employee, Mr. PelIetier, was directed not to wear blue jeans at work, under threat of discip- line. Mr. Pelletier filed a grievance. That grievance was referred to arbitration but then withdrawn on the basis of a form of settlement reached between tie parties in the Board’s mediation procedures. (See Sullivan, pp. 2-3, supr.$ 3. The union considered the effect of that settlement to be that employees would be allowed to wear jea-s at work “provided that they were not tom or had patches”, asitwas announced in the union newspaper. The employer, however, had a’different understanding of the matter and on September 29,1981 set out its policy as follows: Re: Store Employees Dress Code Despite a mlsunder.5tanding which has arisen re,zently, the ,Board’s policy concerning personal dress as out- Lined in the Store Operating Manual..., namely trousers or slacks clean and neatly pressed, has not changed. This policy of course will apply to female attire a well. Jeans are not considered appropriate dress for store employees, while on duty. 4. On September 29,1981, Mr. Sullivan in his capacity as unxm President filed a policy grievance concerr.ing the employer’s “denial of right to wear blue jeans and general enforcement of unreasonable rules about personal deportment”. That grievance was referred to arbitration and on February 4th, 1982 was heard by a panel of the Grievance Settlement Board composed of Mr. I.F.W. Weatherill (Chairman), Mr. L. Robin and Mr. C. Peckham (Members). 5. On January ll,1982 Mr. Pelletier filed the grievance which~& before us alleging that he had been unjustly warned. The existence of this grievance was noted by the panel chaired by Mr. Weatherlll although it was not before that panel for decision (see Sullivan, pp. 2-3, supra). -4- I 6. On April 23,1982, the panel chaired by Mr. Weatherill released its decision on the SulIivan case. ln that decision t! Board decided: 1. the grievance was a policy grievance; and 2. that the grievance did not allege a breach of any particular substantive provision of the collective agreement between the parties; and 3. that the provisions of The Crown Employees Collective Bargaining Act and the collective agreement between the parties do not contem- piate prospective adjudikation of rules promulgated pursuant to the management rights provisions that do not violate specific pro- visions of the collective agreement; and 4. that as a result the matter was not arbitrable in this fam at this stage. However the Board also stated: 1. that the issue of the reasonableness of the employer’s rule against the wearing of blue jeans by store employees would properly arise in the individual circumstances of an indivi- dual grievance agaimt a disciplinary act by the employer. Indeed, the Board referred to Mr. Pellet&% grievance as an example of this type of case. 2. that an earlier decision of the Grievance Settlement Board, McKay (265/80) reached the correct result but for the wong reason. In that case, an employee had been wamed that if he did not stop certain political activity he might be dismissed from the public wvice. The employee grieved the warning but resigned w the public service prior to the arbitra- tion hearing. The employer’s preliminary objection that the Board lacked jurisdiction sirre the issue was moot was rejected by the Board stating it was “of the opinion that we do have jurisdiction to entertain the matter on the basis that the union has a legitimate interest in questioning the propriety of the -5- order given”. In Sullivan the Board said of McKay: “that case was properly heard on the merits providing as it did a particular direction to a particular employee, and where what was in substance a disciplinary decision had arisen. (In light of the direct relevance and importance of the Suhivan case to t:be case before us, we have appended that decision :o ours. 5~1s making it a part of our decision). 7. 8. 9. Following the release of Sullivan, the grievance before us we& scheduled for arbitration. On June 22,1982;at the outset of the hearing in the case before us, counsel for the employer stated that anything said to the griever in January, 1982 concern- ing blue jeans should be construed as a clarification of the employer’s policy and not as a disciplinary warning. Counsel for the union suggested that the comments were properly construed as a discipljnary waming. On June 22,1982, at the outset of the hearing before us, counsel for the employer also stated that.if the comments made to the grievor were a disciplinary warning, the employer was hereby withdrawing that warning. As a result counsef took the position that the issue before us was moot and that we had no jurisdiction to proceed to hear and decide the merits of the case. In considering the implications of the factual backsround in the absence of having heard any evidence, we have assumed that the evidence will support the grievor’s allegation that the employer’s conduct in January, 1982 amounted to a disciplinary warning. That issue is, of course, a question of fact. However, for purposes of determining whether or.not the employer’s decision to withdraw any warning deprives us of jurisdiction! it is necessary for us to assume that there was a warning. If :ne hear:n; is reconvened, the employer would then be in a oositicn to disotite t!lis factual assumption on the basis of the evidence adduced. In essence, then, :be issue 5efore us Is ,wne:oer 3: not :ve -.a’ic. juriscicrion to %ar the griever’s allegation that he ‘was ti:jusTiy ~:rn?s against wearing blue jeans to work. This issue arises in tne context of a dispute 5etween the employe: and union that has existed for at least a yea: and a half concerning the propriety of wearing 51ue jeans at ~.vor:. Furtnermore, t7is individual grievance against a disciplinary act o!’ ::-.e emoloye: follou~s earlier findings by another panel of tne Boa::‘: 1. that the propriety of tne pronibition cannot 5e challenged in a policy grievance, and 2. rhat the propriety of the rule would ,orooe:ly 5e put in issue in the context of an individual grievance disputing a disciplinary decision. If ::;e employer had not purported ?o withdraw the disciolinar: warning during the preliminary arguments in tne case before us, there can be no doubt that we would have had jurisdiction. The case would 5e an individual grievance and we would have had jurisdiction pursuant to .\rticle 21.5 of the co!lective agreement and section 18(2)!c) of The Crown Employees CoIlective Bargaining Act. Both of these provisions grant jurisdiction to the Board to hear and decide individual grievances concerning disciplinary acts. Furthermore, absent the employer’s withdrawal, there coulc have been no question of res judicata arising from the Sullivan case. The Sullivan case disposed of the jurisdictional issue: Could a policy grievance brought by the ,union raise the propriety of the orohi5ition an blue jeans” .- . : ‘. -7- The issue before us wo?ld be simply: Was the discipliner:: ivarning .%8i:hc,-: just cause? In that context, the propriety of the prohibition on blue jes.:: would be put in issue as part of the analysis of just cause. Ratner t?~ hearing a case that \vould be res judicata, it would, in our opinion, be a case of just the type that was contemplated in the Sullivan case as ::.e proper way to test tne propriety of a rule.concerning a dress code, b-: which was not in any ‘xay considered on the merits in Sullivan. Thus, :^,e doctrine of res judicata has no application to the issues before us. i In addition. absent the employer3 withdrawal, there could be -3 question of the union obtaining ‘indirectly what it failed to obtain direc:l:J in the Sullivan case. The issue for us in an individual grievance would :e the correcmess of the disciplinary act in the particular circumstances. The result of the case lnay or may not have a more generalizea effec:. The breadth and nature of the impact of the individual case would de?e:o on the appropriate application of stare de&ii in an arbitral context. Th.3, the employer’s suggestion that the bringing of the individual grievance ‘Xas somehow improper in light of Sullivan is ill-founded. These conclusions bring us to the only remaining issue before us: Does the employer’s purported withdrawal of the warning during the proceedings at the outset of the case deprive us of the jurisdiciion ‘Ee would otherwise have had? ‘Ue received written submissions from counsel for the union on this issue and have considered those submissions ir in addition to the oral arguments in reaching our decision be!ow. i . Before ionsldering the relevant 1a.u. it ,s ;sei,Jl to out ;n i -:r? relief exactly what accepting the employer’s ocsitlzn would mean. T-e issue of blue jeans a. - 3ork is a contentious one for :~-.e parties. For o:e: a year the union has Ceen artemoting :c out the prohib;:;sn against blue ~?~.ns in issue before the 3oard. The Board has rejectee tne policy grieve:ce route. The Board +.rs suggested that an incividual grievance ;uould oe :-le appropriate route. An indiv:dilal grievance is tnen orought and oroc?ised through the grievance proce&re, referred to arb;:rs:ion and scher-:eo before us. The issue is now ready to 5e tested. Ho&ever, at the last mi::;:e the employer atterrots to eiiminate any “difference” bet*ween the pa.-:es by withdrawing rhe suspension. As a result the employer says the ,mz::er cannot be arbitrate;. It can only be arbitrated, the employer claims. 1.7 a new individual grievance. Thus rhe grievor or some otner employee -zus: again wear blue jeans to work, attract discipline, grieve that discip!ine and have the matter referred to arbitration. On the emoloyer’s argumen:. tile employer could then once again withdraw the disci?line and the process would start once more. The employees would, as a result, be deprived of the opportunity to nave a determination of whether or not discipline could properly be imposed for wearing blue jeans to work. Furthermore, percing such a determination, the employees Would forever >e at risk in that if they failed to obey an order to not wear blue jeans (whetner the order is orooer or not), they woulc be guilty of the offence of insubordination quite roar: from the issue of biue jeans itself. -9 . I i -9- .The weft known dicrcn, “obey now, grieve later” is ;a:?3 uor~n the efficacy of the grievance and arbitral process for dis;:s:n: oi differences between the parties. If. the efficacy of that me&;:..ism is undermined by depriving the employees of an oooortunity for an arbitrel . ,determination of the propriety of an em?loyer’s Ssciplinary decis::?s, t5.e foundarion of the commitment to arbitration instead of seLf-helo .:ouid be weakened. In essence t,he difficulty ,wi:h the employer’s ?osi?io: -. tha: withdrawing the warning eli-ninates any “Sfference arisi:; frcm tne...application, administration or alleged contravention” of the coi!e&ive 1 agreement - is that it leaves unresolved the.core “difference” her-eon the grievor and the employer: Can the griever properly be disci;;ined for wearing blue jeans to work? If the employer’s~submissions were accepted! that issue would remain in exactly the same for-n as it was prim to tfiis hearing. Indeed, during the hearing, in response to a question irsm, the Vice-Chairman, counsel for the grievor answered the Board that if the employer’s submission were accepted and a new warning were issued ant then grieved, the substantive issue at the subsequent arbitration woi;lC; remain exactly the same as the issue before us. In the meantine, however, another year would have passed, the employees would have been deorivec of a resolution on the merits for that time and :he employees wo~:ld ail be at risk with respect to a charge of insubordina:ion. Such a restit makes Iittle sense. Fortunately, the arbitral jurisprcAence that we ?sve bee?. referred to and a common sense reading of .the collective agreeTeni an: the statute does not dictate such a result. Indee?, it supports dismiSS3f 2: the employer’s position. These natters are reviewed belou’. During the preliminary proceeci~.gs, the em?lojer s;J;:?s:?~. that it shwld be free to de&e which cases i: wishes to iiriga:e before ::..s Board and thar it should be free to wir:raw cases unilaterally :.v ‘. withdrawing the penalty s? as to deprive us oi jurisdiction over cases . . does not wish us to hear. Three comments on :~-.:s proposirion are in order. First, the grievance procedure is ::e place to dispose of casts that the employer does not wish to litigate further. In this case, :ze employer denied the grievor’s position througksut the multi-step grievance procedure. As a result, the matter was referred to this Soard and we ‘were proqerly seized of it. At tkis stage, it is too late for the employer to express its concerns as to the sui?ability of 5s case and these facts for litigating the dress code rules as they apply to a oarticular individjual. Second, the employer’s suggestion that the particular facts of this case made it an inappropriate one tc se.v l e as the test of the orsoriery of the discipline for wearing blue jeans was no: persuasive. Dnce the issues betKeen the parties were made clear throug? the submissions of counsel, we were not persuaded that there was anything particular or peculiar about the theory of the griever’s claim that would provide a rational basis for 3e employer’s sudden decision to withdraw tcie warning so as to avoic a hearing on t,he merits. hlrd, once we were seized of t?e caseQ it is no longer ooen to the ornployer to determine unilaterally the szitability of this case I<: arbitration. Ra:?er, the decision at this stage ~:;st be 2 mutaa! xc-, reflecting a genuine settlement of the en:ire dispc-e between the pa:ties, and not a unila:eral attempt to avoid ac;., --ssing :ie meri:s of t:.e real issue in dispute between tI?e griever and the employer by setliing a posizion sf the dispute be:.ueen the parties. There are a n;lmber of reporrec cases cealing vii:.-, ihe issue of :he arbitrability si a grievance where the employer has conceded s?eci:!c relief, or where r.ie issue for some ‘other reason !z.s become moot: The seminal case is Re United Steelworkers and International Nickel Co. of Canada Ltd. (1972), 24 L..-\.C. 51 (Weiler). In that.case, the griever grieved a decision which made his position’redundsnt and ssught mcnetary reiief. The company conceded t?e relief requeste: in the grievance zf:ei the first day of hearing on the merits. Tine company objected to the continued arbitration of the matter, on the grounds rhat the -nafter was “acadeT&?‘, and “the~Board was without jurisdiction because it would grant no soecific relief to the employee” (page 56). The arbitration joard focnd that i? had not lost jurisdic:ion because of the fat: that s-,ecific reiief had been granted. The Board stated: Our conclusion, then, is that there is no rule of law or of this contract which bars an individual grievance for a declaration that company conduct affecting him was illegal. .Moreover, there are good reasons why an individual may have real interest in grieving for such a declaration and arbitra- tion boards should not develop an “implied” rule excluding such claims . . . . Hence, when’ an employee grieves zking for specific~relief the employer cannot deprive him of his right to adjudication of the nature of the contract breach by con- ceding the specific relief. For this~reason also, the juris- dictional objection must fail. (page 57) - 12. Since ?ro!essor ‘Xeiler’s decision in LVCO, (supra)! ::>:;:a::-: have substantially followed this line of reasoning. Re Union Gas Co. ef Canada Ltd. and International Chemical Worker’s Uniorr, Local 721 (1973) j L.A.C. (2d) 132 (Rayner) deals with a’situation in which the griever wis sent a cheque for the sick pay claim involved in her grievance approximately one week before the scherfufed date of arbitration. She did not casn tne cheque, but the company took the position ::.z: it %r tendered the amount af her claim on her, and therefore the ‘::isn x:.i “estopped” from proceeding with the grievance. The .Arbitra::an Boar:. citing Professor X’eiler in INCO, found that: Since the grievor might well have interest in deter- mining her rights under the collective agreement, the payment of the cheque is not sufficient to openly dispose of aff matters fn dispute of the parties. 1” other words, there is still a Yfs” fn existence between the par-ties, and thaefore this board should determine the issue. (page 1344) (emphasis added) Arbitrator ‘Weatherill took the same approach inRe Imperial Tobacco Products (Ontario) Ltd. and Tobacco Workers’ Iotemational Union, Local 323 (19751, d L.&C. (2d) 38g. In that case, tbe matter was heard an its merits, but before the Arbitration Board cou!d render a decision, the union nominee died. A new Board vith a new union nominee was reconvened to hear the case again, since the two remaining members of ??e Board were not able to come to an agreement. before the second hearing. the company tendered on the griever the amount claimed in the jrievante. I and took the position that there was “no xatter remain:?.3 :a ?P determined by the board” (page 389). The .?,r5i:ration Soard refuse: 12 accept that submission. The Beard !ound instead zhat: - 13- This tendered payment of the relief asked is not, in our view, tantamount to an “allowing” of the grievance. There is no suggestion that the company was prepared to. acknowledge the validity, in principle, of the union’s position in this case. If that had been the case, :hen such acknowledgement, together with payment, might in- deed be considered to constitute a complete answer to the matter, and proceeding before this board might be thought to be a pointless exercise which should not be be allowed. Having regard to then circumstances in which the company’s tender of payment has been made, however, we can only conclude that the company has sought to avoid the determination by this board of the merits of a case of which it is already seized. While we agree that it would be open to parties, by a true settlement, to put an end to this board’s jurisdiction, it is not, in our view, open to one of the parties to avoid in thii way the outcome of a procedure already under way. (page 390) (emphasis added) The issue arose again at NC0 in Re INCO and United Steelworkers, Local .6500 (1975), 9 L.A.C. (2d) 83 (SiTlmons), where the grievor, at the time of the arbitration, had alread! been awarded the position he sought. Since his grievance sought only the: he be awarded the position, and no other specific relief, the company took the position that there was nothing left to arbitrate. The arbitrator reviewed both American and Canadian arbitration law on the iss,Je, and uitbnately concluded. that it should hear the grievance. It sets out its reasons for doing so at some length; There are two basic reasons for our decision. One, at the time of filing the grievance the grievor was directly affected by the decision of the employer and had a valid (as opposed to a hypothetical) complaint because of same. WhiIe he does not now seek the position for which he claimed in his grievance, we ‘&a unable to conclude that he no longer has any interest in having the complaint determined through arbitration. t I i There has been no settlement of his complaint e and because of the evidence presented in this connection it would be dangerous for this board to conclude that his complaint had disappeared in ab respects. Secondly, it is this board’s view that in the absence df a settlement, all valid (as that word is intmrled to be interpreted) grievances should be resolved through arbitration. We are supported in thii result by the Ontario Labour Relations Act, R.S.O. 1970, c. 232, s. 370) which reads: 37(l) Every collective agreement shaff provide for the final and binding settle- ment by arbitration, without stoppage of work, of all difference between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. It appears to this board that unless it is absolutely clear that the difference that had existed has totafly disappeared a board of arbitration should decide the isrue rm its merits. In the circumstances of this case the board is not certain that the difference has totally disappeared. (page SS) (emphasis added) The decision reported as Re American Can of Canada Ltd. and Sheet Metal Workers International Aasociation, Local 487 (1975). :: LAC. (?d) 73 (O’Shea) might be viewed as taken; a contrary ap;roach. however, in that case it appears that the Union was attempt?.; to c::.vert an indivic;lal grievance into a policy grievance, an attern;; the arbitrator refused to permit. That is not the case 5efore us. Here an ind:vidual is seeking clarification of whether or not k is permitted :o wear b:de jeans at & store in his circumstances. - In summary, the cases aooear to upnold tre ar51:rzoilit)’ of zrievsnces in circumstances like this en two :ases. FLrst. uere :he J \ underlying issue which was raised in ::e grievance remains, the arbitration board will be prepared to issue .a .deciaration, even if specific relief is no longer appropriate. Secondly, the more narro,wly, if the relief granted by the employer does not exhaust the relief asked for or available in a particular case, then the fact that . *:e employer has granted some relief wiil not deprive an arbitration boarc of jurisdiction to hear the merits of the case. Both of these grounds independently support the arbitrability of the case before us although, in light of Sullivan (57S/Slj, the second ground is the more a?p:opriate one to rely or.. ? .A consideration of the collective agreement and The Crown Employees Collective Bargaining Act similarly supports the proposi<ion that the employer’s withdrawal of Ihe. ‘warning does not deprive us of jurisdiction fo continue to adjudicste the remaining issues before us. Article 21.5(e) of the collective agreement provides that in failing settlement of an employee’s grievance, the grievance may be submitted to this Board, and that a determination by this i3oard shall be final and binding. Article 21.1(c) defines a grievance as “a difference arising from the interpretation, application, administration, or alleged contravention of the provisions of the agreement”. Therefore, the griever’s complaint was a grievance and remains a grievance despite the employer’s withdrawal of the warning as the grievor alleges that the employer’s warning was a contravention of the collective agreement. By withdrawing the warning the employer has “0’ concedeh tha: allegation and thus the “differer?c=“, thus the “grievance” remains, and thus our jurisdiction remains. I I .\iorr;?g in The Crown Empbyees Collective Bargaining Act 3 incons;i:ent wuir; this conclusion since 1: +xoliciti! preserves any ;r.evance rights arising c.-,ier the collective agrs*-en:. Section :5 provides: “!n additic: to any xner rights of griex~ance ::der a ccllective agreement”, an emplo! e-2 may grieve and have arb.:rsted certain specific matters. Therefore, our jurisdiction found unrtr the collective agreement is unimpa:red by :?e Act. Indeed, the sim,..z:ity ;n stxcture of this .Act ant the Onrario L&our Relations Act with respect 1; arbitration procedures emphasres the direct relevance of the srbitrai jsispruieace referred to above. Cx:.sel for the union sumrsrized ner written silbmission by stating: “It is t-e position of the cnior :.xt by xlthdraxing the specific oral wxning imposed in this case with;-: concec:ng that :ne grievsr is in fact er.:itled tc wear blue jeans to work .n his store, the employer nas not resolved the issue raised by the grievsnce, ant that the griever is sti!l entitle4 to a declaration as to his righz under the collective agreement”. In sur.mary, Ee ag:ee: there remalx a grievance to be adjudicated althou@ the relief claimed no longer yeed inc:-de a withdrawal of the warning. We have therefore asked the Registrar :a schedule a continuation of this matter ior the first available mc:.Jally com’enient cate. Be!sre closing the interim award we should ?ote that cWnse1 for t:-s emplcb~er indicated during h:r yelimirzry sub,n,issions :hat he intenced to re:y upon Re Metropolitan Toronto &xvd of Commissioners of Police v. Metropolitan Taonto Police hnociatior, et al (;?Sl). 12: 3.L.R. i \ r: -17-, (3d) 684 (On:. C.,l. and Bank of British Columbia V. Union of i3ank Employees, Local 2;OO (unreported judgment of the British’ Columbia Supreme Court date: March 9, 1982). Ccunsel agree< ,xith the chair%?. that these cases we:? relevant, if at al!, to the merirs sf tne case anti in particular to the sc:?e of arbitra? ieviw of :5e reasc3abIeness of rules. and rnat they did no: affect the preliminary issues. Therefore, we >ave XT considered the impac: of these cases in :?Gs awar< and ‘xe~ will wan: to hear submissions at the :ert hearing before making army findings concerni?~ their relevance to tbz case before us. DATED at Toronto Cis’21st day of July! 1982. ‘I.R.S. Prichard Vice Chairmin 1.3. Thomson Memoer A&. Stapleton \\emoer 1 I