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HomeMy WebLinkAbout1984-1483.Anderson.86-07-07IN THE MATTER OF AN ARBITRATION - Under - THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between Before: For the Griever: For the Employer: OPSEU (S. Anderson) - and - The Crown in Right of Ontario (Ministry of Correctional Services) G. Brent I. Freedman G.A. Peckham Maureen Farson Counsel Cornish & Associates Barristers d Solicitors John Hannah Senior StafE.Relations Officer Ministry of Correctional Services Griever Employer Vice-Chairman Member Member May 22, 1986 , . 2 DECISION By agreement of the parties this decision will deal only with the preliminary objection raised by the Employer. This board heard no viva vote evidence. The parties relied solely on the documents which were presented to the Board as Exhibits 1 to 7 inclusive. The Employer's oblection &xxerns the ,timeliness of the referral of the giievance to the second stage in the grievance procedure. Its position i,s that the grievance was not forwarded to stage 2 of the grievance procedure in time, and that pursuant to Article 27 the grievance is deemed to have been withdrawn. The Union concedes that the time limits for forwarding the grievance to stage 2 were not adhered to and that the time limits are mandatory; however, it argues that the :: Employer waived its rights co rely on the failure to meet the time limits. In this case the only question in dispute is whether the Employer can and did waive its right to rely oti the union's failure to~refer the grievance to stage 2 in time. In order to put the matter in perspective we will set out the relevant facts briefly. On. November 26, 1984 the griever filed a grievance (Ex. 1) concerning her unsuccessful candidacy in the Employer's competition Cl- 105284. On November 27, 1384 the Employer responded at stage 1 (Ex. 2). On December 21, 1384 the Union wrdte a letter to the Employer (Ex. 3) referring the matter to stage 2 of the grievance procedure. This referral was cleariyoutside the time limits in Article 27.3.2 of the collective agreement. On January 2, 1985 the Employer informed the griever that it would hold a meeting with her on January 9th (EX. 4). There then followed an exchaaqe of letters between.the EmplOyer.and the Union (Exs. 5 6 6J in which they agree to an extension of the time limit for responding to the grievance at stage 2. On January 22, 1985 the Employer sent the griever a letter (Ex. 7). It is this letter which - 3 gives rise to the dispute between the parties; its contents are 'reproduced in full below: On Wednesday, January 9, 1985, a hearing concerning your grievance was held. II Your union representative, MT. P. slee, agreed to's time waiver for my response in order to give me time to thoroughly study the facts surrounding your presentation. First, I Joted that technically you withdrew your grievance between stage 1 and stage 2,. since you submitted your stage 1 to your area manager on November 26, 1984 and received.his reply on November 27. 1984. your stage 2 was received by the Deputy Minister on December 31, 1984, contrary to the time requirements. HOW.SVer, c- in order to be fair to you, I have kept your position in mind in perusing the Ministry's competition file. Secondly, i- [here the employer made an offer of settlementtothe grxevor, the contents of which, quite pf~3perly, were not disclosed to the Board.]' G This offer is contingent on the withdrawal of your grievance. Yours truly, (signed) J. A. Benoit ..~ Regional Personnel Administrator (N) VOTE: Portion in square brackets added. The relevant provisions of,the collective agreement are set out below: 27.3.2 If the grievance is not resolved under stage one, the employee may submit the grievance to the Deputy Minister or his designee within seven (7) days of the date that he received the decision.under stage one..... 27.11 Where a grievance is not processed within 4 the time allowed or has not been processed by the employee or the Unron within the time prescribed it shall be deemed to have been withdrawn. 27.13 The time limits contained in this Article may be extended by agreement of the parties in writing. 27.14 The Grievance.Settlement Board shall have nb jursidictionto alter, change, amend or enlarge. any provision of~the Collective AgreeaIent. In the course of their submissions the parties referred us to these authorities: 1sa.x and MecIsesc (GSB File #742/83 end #24/84); Orr (GSB File #138/84 and #139/84); Lam (GSB File 377/83); E International Lonqshoremen's Association, Local 1879 and Hamilton Terminal Ooerators --- Ltd. (19661, 17 L.A.C. 181 (Arthurs); Reunited Automobile Workers ana Hawker siddeley Canada Ltd. (19641, 15 L.A.C. 262 (Thomas); g United Electrical Workers; - Local 512, and standard coil Products (Canada) w (1964), 15 L.A.c. 197 [Lane); International Union, United Automobile, Aircraft & AgriCultuIel Implement Workers of America (UAW-CIO) &I E Nassey-Harris Company,s(1952) 3 L.A.C 1059 (Lane); andcollective Agreement Arbitration & Canada (2d .@d.) Palmer. We have considered all of the submissions made by counsel for the parties end have read all of the authorities cited to us. ASP noted earlier, the entire matter revolves around the proper interpretation to be given to the letter from Mr. Benoit to Ms. Anderson on January 22, lg.535 (EX. 7). Before dealing withthatletter per se;we would like to set out our understanding of the law as it applies.to the matter before US. We agree that the time limits in the collective agreement are mandatory and that the parties have agreed in Article 27.11 upon a specific penalty for non-compliance. We further agree that this Board 5 lacks the jursidiction, such as that given to boards of arbitration governed by the Labour RalationsActR.S.0. 1980, Chap. 228, to relieve against non-compliance with time limits. Moreover, seven if there were such statutory authority, the parties have, in Article 27.14, denied the Board Jursidlction to enlarge time limits. We also agree that the parties haveprovidedthat they may enter into written agreements to extend time limits, and that there was no such written agreement to extend the time for processing the matter to stage 2. we believe all of _ these principles to be consistent with the decisions of this Board which were cited to us. The cases cited to us by the Union all dealt with waiver, and all dealt with situations where it would appear that the "innocent" party failed to raise the procedural irregularity before the arbitration __ paring. The cases generally recognized that, even though contracting parties may have mandatory time limits in their collective agreements, thosetimelimits may be waivedeither by express agreementor by the - action of the *innocent' irregularity in /‘. Collective summarized the situation when he wrote the following: Like estoppel, "waiver is a legal barrier to the exercise of the rights in a particular case, erected by the conduct of (sic) words of the parties". Conduct which has been held to amount to a waiver includes: allowing a ~grievance to go -through the grievance procedure; failure to ob]ect -at the firwortunity in the grievance procedure; . . . and an attempt to settle the grievance. Waiver can also be by verbal agreement. The right to ob]ect at a later stage can be retained by a statement to that effect at the first opportunity or by a timely objection, even though it is not raised again until the hearing. 6 Generally, waiver arises therefore where it is clearly indicated that one of the parties does not intend to invoke theproceduralprovisions of the collective agreement. There is no need for detrimental reliance by the other party. . . . The onus of establishing waiver is on the party alleging it. we accept that, if the'Em@loyer has accepted the Union's ncn- compliance with the time limits in question and treated the grievance as not being deemed to have been withdrawn, then the Employer has waived its right to invoke Article 27.11 and the grievance should not be treated as having been withdrawn. The task before us, therefore, is to ,.,, ;;.;: interpret the letter (Ex. 7) and to determine if the Employer has indeed waived its right to invoke Article 27.11. There is no doubtthatthe Employer was aware that the grievance hadnot been submitted to stage 2 withinthepropertimelimits. The letter (EL 7) mentions that fact. The Union's position is that the letter should be read as stating that everthough the grievance has been technically withdrawn the Employer is prepared to deal with it on Its merits and to-make an offer of settlement contingent upon the withdrawal -.: of the grievance. It assexts that if these were no existing grievance, there would be no needto make an offer of settlementcontingentupon its withdrawal. It also points to 'de use of ti-+' word "however" at the beginning of the fourth paragraph and argues that the use of that conlunction between the Employer's first and second points indicates that the Employer knew of its suict legal position but nevertheless was treating the grievance as being in existence. It also argued that the jrievor upon reading the letter would conclude that she had two choices - either accept the offer and withdraw the grievance, or reJect the offer and continue to the next stage - but that she would not conclude that the Znployer was going to rely on its stri,ct legal riqht~s under the i ,i 7 :,\ collective agreement to consider the grievance as having been withdrawn. The Employer's position is that the letter should be read as indicating that it considers the grievance as having been withdrawn because of the time limit violation, but to be fair it is willing to consider the grievance on the merits and make an offer which, if accepted, will result in the withdrawal of the grievance. It says that the letter should be interpreted as indicating tha,t if the offer is rejected, then tix grievance stands as tec.hnically withdrawn. Having studied the letter carefully, we consider that it >s reasonably possible to interpret the letter in either way. Even though a grievance may be considered as~having been with&awn, there is no+-hing to prevent the partiis from disregarding that and from treating the grievance as being "alive". On the other hand, it is possible that an j employer may choose to make an objection regarding a fatal procedural irregularity and then to discuss the grievance on its merits without pre]udice to its right to rely on its objection. After having read the. LI,. letter many times and after-having considered it carefully, we believe that the more reasonable interpretation to give it is that put forth by the Union The letter does not clearly state the EmplOyer's position regarding the violation of the time &its other than to "note" that the employee "technically . . . withdrew" her grievance. The very next paragraph begins with the word "however" and indicates that the Employer has considered the griever's "position" in reviewing the competition file "in order to be fair" to the griever: There then follows an offer of Settlement fdilowed by the statement 'Vhis offer is contingent on the withdrawal of your grievance". There is no statement in me letter to indicate that the offer is being made without p?e]udice to the Employer's right to pursue its objection and to consider the grievance as having been withdrawn. It is indeed logical to ask why an offer would be made conditional upon the withdrawal of a withdrawn grievance; esp‘ecially in a situation such as this where there was no outstanding factual dispute to be litigated concerning the question of whether the time limits had been adheredto which couldhave been decidedagainst the Employer. The most obvious answer is that the Employer, in making the offer, was choosing not to treat the grievance as already having been withdrawn. Such a conclusion is not inconsistent with noting that there is a technical ob]ection. Moreover, such a conclusion is consistent with following the mention of that technical objection with d paragraph beginning witkthe word "however" which can be interpreted as indicating that the grievance was being considered on its merits in spite of the technical obJection. Q&d!.- In drawing this conclusion we recognize the possibility that the letter could have been interpreted as the employer proposed. while we consider the Union's interpretation to be the more reasonable given the wording of the letter, we should indicate that even though the onus is On <tiCUnion to establish the waiver, the onus is on the Employer to show that it made its objection in a timely fashiqn. If the objection is said to be contained in a document whichisso ambiguous that it is not possible to choose between two competing~interpretations, One of which is that no ob]ection was being pursued, then we consider that the Board would be justified in interpreting the document against the interest of the maker of the document who created the ambiguity. We wish to make it clear that our decision is based solely on our- interpretation of the letter (Ex. 7). we do not consider that there is . c 9 anything wrong with e procedure which allows one party to make its timely objection to e grievance end yet, in the interest of good lab-our relations, then proceed to try to deal with the matter raisedin the grievance. In such a situation under this collective agreement the parties would not be settling a grievance, since there would no longer be a grievance to settle, but would be dealing'with a problem. Further, ~if one party made its oblection in a time.ly fashion, and there was an outstanding dispute concerning the objection either of a factual nature or concerning the interpretation of the portions of the collective I: :.- ,~ . agreement dealing with the objections, then it would be logical to make the acceptance of 'eny offer of settlement contingent upon the withdrawal of the grievance because there still might be e grievance to ad]udicate. In~the case before us, end on the wording of the particular letter (Ex. 71 which was presented to u.$, we are simply unable to conclude that the employer was meking its objection known in a timely fashion rather.then choosing to deal with the grievance on its merits despite the fact that it could make an oblection. .~or all of the reason set out above, we consider that the Employer didnotmake its timeliness objection--known to the Union in a timeiy fashion, but rather waived its right to rely on Article 27.11 of the collectiveagreementand~treated the grievance as being in existence despite the Union's failure to process the grievance to stage 2 within the time limits established by the collective agreement, Acco;dingly, the grievance is not deemed to have been withdrawn and will be considered on the merits by this Board on a date to be.set by the Regisfrar'in consultation with the parties. In order to have this matter heard as soon as possible, and since this panel of the Board 10 heard none of the facts concernin the merits, this panel willnotbe seized of the matter for the purpose of hearing the merits. OAW Al' LONDCX?. ONTARIO THIS 7th DAX OF Ju!y, G. G. Brent, Vice-Chairman ..,