GSB# 2003-3075

UNION# 2003-0999-0030

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 Grievance)

Union

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Bram Herlich

Vice-Chair

FOR THE UNION

Gavin Leeb Barrister and Solicitor

FOR THE EMPLOYER

Christopher Jodhan & Jane Hooey Counsel Management Board Secretariat

HEARING

March 22, 2005.

Decision

The Union has filed a grievance asserting that unclassified employees in the Correctional Bargaining Unit (hereinafter referred to as the “correctional unit”) are entitled to “max plus merit” by virtue of Appendix 26 of the Central Working Conditions and Employee Benefits Collective Agreement (hereinafter referred to as the “central agreement”).

By way of background, the parties described for me how a number of documents govern the terms and conditions of employment of OPS employees represented by this union.

The parties have negotiated the central agreement which applies to all employees represented by this union. In addition, the terms of the Correctional Bargaining Unit Collective Agreement (hereinafter referred to as the “correctional agreement”) apply to employees in the correctional unit. (Provisions of this agreement employ the prefix “CORR” in advance of all article numbers.) All other employees (i.e. those not in the correctional unit) represented by this union are covered by the terms of the Unified Bargaining Unit Collective Agreement (hereinafter referred to as the “unified agreement”). (Provisions of this agreement employ the prefix “UN” in advance of all article numbers.)

Thus, in respect of OPS employees represented by this union there are 2 collective agreements: the first (composed of the central agreement combined with the correctional agreement) which applies to employees in the correctional unit; the second (composed of the central agreement combined with the unified agreement) which applies to all other employees represented by the Union.

Although on its face, the unified agreement has no application to employees in the correctional unit, it is useful to begin by setting out the terms of UN 16.2.1 (which confers the benefit the parties have referred to as “max plus merit”):

Effective January 1, 2002, an employee who is at the maximum of the salary range for his or her classification shall be eligible for an increase to his or her rate of pay of 1 percent (1%) over the maximum rate of the classification. Such increase shall be based on satisfactory performance. For employees who have been at the maximum of the range for twelve (12) months or more on January 1, 2002, the increase shall be effective upon January 1, 2002. For employees who have been at the maximum of the range for less than twelve (12) months on January 1, 2002, the increase shall be effective twelve (12) months after the employee achieves the maximum of the range.

Articles UN 16.2.2 and UN 16.2.3 provide for further similar increases to be effective January 1, 2003 and January 1, 2004.

There is no analogous provision to be found in the correctional agreement. However, Appendix 26 to the central agreement is in the form of a letter from the Employer’s Director, Corporate Labour Relations to the Union President, the text of which reads as follows:

This will confirm our understanding reached at negotiations that where an unclassified employee progresses to the maximum rate of a classification, the employee will be eligible for the additional amounts specified in the new article 16.2 contained in the Unified collective agreement.

It is on the basis of this latter provision that the Union asserts the entitlement of unclassified correctional unit employees to max plus merit. The Employer disputes any such entitlement and has indicated that it intends to call evidence of negotiating history to establish that a proper interpretation of the collective agreement does not give rise to any such entitlement. Alternatively, the Employer asserts that the evidence will establish that Appendix 26 was mistakenly appended to the central agreement rather than to the unified agreement. It is common ground that, generally speaking, the unified agreement has no application to employees in the correctional unit. In that context and to that extent, I may be asked to rectify the terms of the relevant collective agreement.

This decision, however, deals with the preliminary objection raised by the Employer to the grievance proceeding any further. It is asserted that the grievance is untimely and therefore cannot proceed.

Article 22.13.1 governs the timing of Union Grievances as follows:

Where any difference between the Employer and the Union arises from the interpretation, application, administration or alleged contravention of the Agreement, the Union shall be entitled to file a grievance at the second stage of the grievance procedure provided it does so within thirty (30) days following the occurrence or origination of the circumstances giving rise to the grievance.

In response to the Employer’s objection, the Union asserts that this is a continuing grievance and that while any delay in its filing may be relevant to questions of remedy, such delay is not otherwise fatal to the grievance. In the alternative, the Union claims that the Employer has waived its right to assert any timeliness objection.

No evidence was called in support or in defence of the Employer’s motion. The parties made it clear before me, however, that most of the facts necessary to dispose of the preliminary issue are agreed or, at least, not disputed. There is one area, however, where the lack of evidence or specific agreement on the facts is relevant, as will be seen shortly, to one aspect of my decision.

The uncontroverted facts are as follows.

The collective bargaining which resulted in the current collective agreements was concluded in May 2002 when the agreements were ratified. The resulting agreements were signed in September of 2002. Certain provisions of the agreements were to have retroactive effect. Among those were the “max plus merit” provisions of the unified agreement which, as set out above, contemplate an effective date of January 1, 2002. Despite that contemplated effective date, the Employer did not implement this increase until October 2002 (I was advised that delayed implementation of various monetary entitlements was the subject of a separate grievance and decision by this Board).

Essentially, the “max plus merit” provisions contemplate the eligibility of affected employees who have reached the top of the salary grid to receive an additional percentage wage increase on the first, second and third anniversaries of their ascension to the salary maximum. Employees have individual anniversary dates for the purpose, among others, of eligibility for “max plus merit”. Given the numbers of unclassified employees in the correctional unit, it was not therefore disputed that on any given day, or certainly in any given week, there would likely be at least one unclassified correctional unit employee who would celebrate an anniversary of their ascension to the maximum level of the salary grid.

The Employer concedes that, given the delay in the implementation of “max plus merit” the “clock” with respect to the timeliness of any grievance claiming entitlement to “max plus merit” could not have begun to run prior to October 2002, the first date upon which such increases were implemented. The present Union grievance was filed approximately one year later in October 2003. The Employer asserts that the grievance is therefore clearly out of time and that the Board should not exercise its discretion to extend the time limits.

The Union, however, does not seek to have the Board extend any time limit. It agrees that the grievance could not likely have been filed prior to October 2002, but prefers the image of a “window” to that of the clock proffered by the Employer. In the Union’s view, the ability to file a grievance arises not only with the very first instance of the impugned denial, but on each and every individual occasion that the Employer refuses to consider the application of “max plus merit ” to employees the Union claims are entitled to such eligibility.

For that and other reasons the Union asserts that this grievance is in the nature of a continuing one. And while it accepts that the timing of its filing may have an impact on questions of remedy, it asserts that the continuing nature of the grievance is a complete answer to the Employer’s claim that the grievance is untimely.

Finally and in the alternative, the Union claims the Employer has waived its right to object to the timeliness of the grievance. The grievance was filed on October 15, 2003. The statement of grievance is as follows:

The employer has violated specifically, but not exclusively Article 2, Article UN16.2 and Appendix 26 of the Collective Agreement, in regards to salary adjustments for unclassified employees within the Correctional Bargaining Unit.

No Stage Two grievance meeting was held and there was no Employer response to the grievance. By letter dated November 28, 2003 the Union advised the Employer and the Registrar of this Board that it was referring the grievance to arbitration. On June 9, 2004 the matter proceeded to the Joint Review Process under the terms of the collective agreement and a hearing date of December 17, 2004 was scheduled. That hearing was adjourned on consent of the parties, apparently at the Union’s request. The matter was then rescheduled for hearing on March 22, 2005 when the preliminary issues now under consideration were argued before me. It was not until March 14, 2005 that the Employer first indicated that it might raise a preliminary objection to the grievance on the basis of timeliness. On March 18, 2005 the Employer advised that it would be bringing such a motion.

In those circumstances and relying in particular on the scheduling of the matter through the Joint Review Process as a “fresh step”, the Union urges me to conclude that the Employer has waived any right to object to the timeliness of the grievance.

I am satisfied that the Employer’s preliminary objection must be dismissed on any of the following grounds: (1) the Employer has failed to establish that the grievance is untimely; (2) the grievance is a continuing one; and (3) the Employer has waived its right to object to the timeliness of the grievance.

I will now briefly review my reasons for arriving at these conclusions.

It is with respect to the first basis for rejecting the Employer’s claim that the lack of specificity in some of the evidence is material.

The Employer claims that the timeliness clock began to run in October 2002 when it first implemented “max plus merit ” increases. There is some merit to this position insofar as it is restricted to any claim being advanced on behalf of the first correctional unit unclassified employee(s) to reach their individual anniversary of arriving at the maximum point of the salary grid. On the basis of the undisputed facts, it is reasonable to assume that such an (otherwise unidentified) employee may have reached that point as early as January 1, 2002 but might not have been in a position to grieve until October 2002 when the Employer first implemented “max plus merit ” and did not apply it to this (and likely numerous other) unclassified correctional employees. But given the general factual parameters the parties agreed to, it would appear that individual employees reaching that anniversary would have been a daily or weekly event from that point forward. Employer counsel was candid enough to concede that for an employee who reached that anniversary point on the eve of the filing of the Union grievance, an individual grievance would have been timely had it been filed on the same day as the Union grievance.

At its heart, my finding in this regard may be little more than a restatement of my next conclusion that the Union grievance is a continuing one. What is clear, however, is that there was and continues to be a difference between the parties with respect to the interpretation of the collective agreement and, in particular, with respect to the eligibility of unclassified correctional unit employees to receive “max plus merit”. Given the general factual agreement of the parties and the Employer’s failure to establish that no unclassified correctional unit employee would have reached the relevant anniversary date during the 30-day period prior to the filing of the grievance, I believe the Employer has failed to meet the burden of establishing that the grievance is, on its face, untimely. The timing of the filing of the grievance may impact on remedy in the event the grievance is ultimately successful, but I am not persuaded that the Employer has established that it is therefore untimely.

I am also persuaded that the Union grievance is properly characterized as continuing. There are at least two separate paths to that conclusion.

Even before describing those paths, I note that the Employer did not explicitly dispute the Union’s characterization of the grievance as continuing. It argued rather, that, for reasons I will come to shortly, I should uphold its preliminary motion notwithstanding any characterization of the grievance as continuing.

I was referred to a number of cases outlining the nature of a continuing grievance. The law on the point is fairly well settled and I will refer only to the decision of the Chair of this Board (acting as a private arbitrator) in the case of Re Religious Hospitallers of St. Joseph of Hotel Dieu of Kingston and Ontario Public Service Employees Union (1992), 1992 CanLII 14621 (ON LA), 29 L.A.C. (4th) 326 (Stewart). At page 331 of its award the Board of Arbitration offered the following:

In determining whether or not a grievance is properly characterized as a continuing grievance it is necessary to look to whether it is alleged that the bargain between the parties continues to be violated. In this instance, the nature of the grievance in its simplest form is that the employer has agreed to compensate Ms. Spence on the basis of her years of service and has not complied with that obligation. If the union's analysis of the effect of the collective agreement is correct, notwithstanding that the placement on the grid was a discrete decision made on one occasion, the employer continues to have the benefit of Ms. Spence's experience but is not compensating her in recognition of that experience. While the situation arose as a result of one decision of the employer, the grievance relates to a continuing violation of the alleged bargain. The violation claimed occurs at each pay period when the employer has the benefit of Ms. Spence's services but does not compensate her for them in accordance with the collective agreement. In our view, this grievance raises an allegation of the continuing violation of the ongoing bargain between the parties.

The decision in that case is consistent with prior authorities (e.g. Re Port Colborne General Hospital and O.N.A. (1986), 1986 CanLII 6715 (ON LA), 23 L.A.C. (3d) 323 (Burkett) and the decision of this Board in Redmond, GSB #1988-0928 (Roberts)) and has been followed in subsequent ones (e.g. Re The Crown in right of Ontario (Ministry of the Attorney General) and Ontario Public Service Employees Union (Hunt et al.) (2003), 2003 CanLII 89571 (ON GSB), 120 L.A.C. (4th) 119 (Abramsky), a decision of this Board, and Re Family and Children’s Services of Renfrew County and Ontario Public Service Employees Union (2004), 2004 CanLII 94713 (ON LA), 124 L.A.C. (4th) 321 (Knopf)).

Having regard to the foregoing I am satisfied that the grievance meets the conventional description of a continuing one. It claims, essentially, improper payment of wages, an obligation which continues and recurs with each pay period. I note too in this regard that the grievance might otherwise be described as one which challenges the Employer’s failure to implement “max plus merit ” and that the grant of such compensation is not automatic, but one which is dependent upon the employee’s satisfactory performance. In that respect, it might be argued that the impugned failure is a singular (or at least an annual) event which generates ongoing consequences rather than resulting in a series of ongoing alleged breaches. I would be more receptive to this argument (which was not specifically advanced by the Employer), if this were a case where the Employer argued that it had turned its mind to individual entitlement and had denied it on the basis of unsatisfactory performance. Such was not the case. Rather, the issue which separates the parties is the very entitlement of affected employees to even be considered for the additional compensation. In that context, I am satisfied that the Employer’s asserted obligation is an ongoing one which is repeatedly at issue with each paycheque.

There is, however, a second basis upon which the grievance can be said to be a continuing one. The frequency with which separate individual employees reach the requisite anniversary date is such that each such instance provides a fresh crystallization of the issue which separates the parties. And given the parties’ agreement as to the general factual parameters of the case, it would appear that the issue of the application of “max plus merit” to unclassified correctional employees is one which crystallizes with abundant frequency. In that context, a similar conclusion obtains even in respect of the very first of the relevant employees to reach the anniversary date. Such an employee would have otherwise first become entitled to advance a claim for “max plus merit” sometime between January 2002 (the “retro” date) and October 2002 (the implementation date). Even assuming that the delay in filing a grievance in October 2003 in respect of a claim that crystallized in October 2002 results in a disentitlement to claim the “max plus merit” for the entire year which follows the first anniversary date, the second or third anniversary dates which follow would generate another claim even where the claim might otherwise be seen to arise only once in a given year for a given employee.

In short I am satisfied that there is an ongoing and subsisting difference between the parties – a difference which crystallizes in actual fact not only with each successive paycheque to an affected employee but also commencing on each and every relevant anniversary date of any other allegedly affected employee.

The Employer, while not explicitly challenging the Union’s characterization of the grievance as continuing, asserted that this Board was being asked to ignore the time limits of the collective agreement. It urged that a higher standard apply in the case of a Union grievance since the Union is better placed to identify and understand complex legal claims (as well as the intention of the negotiating parties) than is the typical employee who may be largely unschooled in labour relations matters. There should come a point where the Union ought simply not be permitted to advance even a continuing grievance. In the present case, where a delay in the range of a year separates the filing of the grievance and the first real opportunity to do so, the Union should be viewed as well beyond the point where it ought to be permitted to advance even a continuing grievance. Thus, argues the Employer, the only way the Union ought to be permitted to advance the grievance is if this Board is satisfied that there are reasonable grounds for extending the time limits. And since no such grounds have been advanced, the grievance ought to be dismissed.

Of course, as indicated earlier, the Union’s clear failure before me to establish a basis for the extension of time limits no doubt is related to the fact that it does not seek any such extension.

And while the Employer candidly conceded that, in cases of continuing grievances, matters of undue delay are dealt with as questions of remedy not as a basis for declining to hear a matter, it still urged, for the reasons just set out, that the grievance be dismissed.

With the greatest of respect to the Employer’s enthusiastic submissions, I am not persuaded that, as a general matter or in the specific context of the instant case, there is any persuasive or compelling reason to rethink the jurisprudence with respect to a well-settled legal issue. There may well be dire consequences which flow from the delay in filing a continuing grievance. But as Employer counsel conceded, arbitrators have engaged in determining those consequences, when appropriate, in the remedial phase of their deliberations with respect to continuing grievances. Delay has not been viewed as an absolute bar to proceeding with a continuing grievance. I do not propose to introduce any such innovation.

This brings me finally to the Union’s alternative submission i.e. that the Employer has waived any right to object to the timeliness of this grievance.

Again, we are traversing well-travelled legal terrain and there was little controversy generated with respect to the appropriate legal principles. The Union referred to numerous cases in support of its position (see for example, Tiel, GSB #1994-1419 (Verity), Tharakan, GSB #1986-1976 (Kirkwood), and two separate unreported decisions involving George Brown College and Ontario Public Employees Union: a decision of Arbitrator Burkett dated March 15, 1998 and a decision of Arbitrator Mitchnick dated October 26, 2000). The Employer cited Re Cancer Care Ontario and Canadian Union of Public Employees, Local 3316 (2003), 2003 CanLII 89588 (ON LA), 118 L.A.C. (4th) 358 (Dumoulin), Dhanju, GSB #1992-3599 (Backhouse), Re Hotel-Dieu Grace Hospital and Canadian Auto Workers, Local 2458 (2002), 2002 CanLII 79001 (ON LA), 106 L.A.C. (4th) 1 (Knopf), as well as an extract from Brown & Beatty, Canadian Labour Arbitration.

For our present purposes the Brown & Beatty extract (at p. 2-107 et seq.) is instructive:

The concept of "waiver" connotes a party not insisting on some right, or giving up some advantage. However, to be operative, waiver will generally require both knowledge of and an intention to forego the exercise of such a right.

In its application, waiver is a doctrine that parallels the one utilized by the civil courts known as "taking a fresh step", and holds that by failing to make a timely objection and "by treating the grievance on its merits in the presence of a clear procedural defect, the party waives the defect." That is, by not objecting to failure to comply with mandatory time-limits until the grievance comes on for hearing, the party who should have raised the matter earlier will be held to have waived non-compliance, and any objection to arbitrability will not be sustained. This has been held to be so even though there was a timely objection as to arbitrability but not one that related to the failure to meet time limits. Where, however, the objection to untimeliness is made at the earliest opportunity, even if it is not made in writing, it will preclude a finding that the irregularity was waived.

[footnotes omitted]

Perhaps equally apt is the concise summary which originates in Fung/Anand GSB # 1989-1798 (Stewart) and is cited in the Tiel decision supra at p. 10:

The principle that these cases establish is that an objection based on non-compliance with time limits is waived when there has been a failure to raise the objection in a timely manner and the taking a fresh step prior to raising the objection... Once the timeliness objection has been waived it cannot be revived by notice.

These citations and the cases referred to disclose that a “fresh step” might consist of little more than participation in subsequent steps of the grievance procedure or in the referral of a grievance to arbitration. There is no doubt in my mind that, in the present case, the Employer’s participation in the Joint Review Process as contemplated by Article 22.17 of the collective agreement and described therein as “an integral part of the dispute resolution mechanism” constituted a fresh step in the proceedings. At a minimum, the Employer’s failure to raise any timeliness issue for the period of approximately 1-1/2 years between the filing of the grievance and the eve of the hearing before me requires some compelling justification to avoid the conclusion that the Employer has waived its right to raise any timeliness objection.

While it was not framed precisely in that fashion, the Employer did seek to explain and justify its delay in raising the objection.

In advancing this aspect of its case, the Employer, relying on the second sentence of the first paragraph of the Brown & Beatty extract, essentially denies that, whatever might otherwise be suggested by its conduct, it knowingly waived any procedural irregularities.

In essence, the Employer argues that it had no knowledge of the nature of the case until shortly before making its intention to raise a timeliness objection clear to the Union. The formal notice of intention to raise a timeliness objection was delivered promptly after the Union finally complied with repeated Employer requests to provide particulars of the grievance.

Of course, the Union was quick to point out some of the ironies of the Employer claim. It is only by failing to formally respond to the grievance and by declining to participate in any Stage Two grievance meeting that the Employer is able to maintain its disingenuous state of ignorance about the nature of the grievance. The Employer should not be rewarded for that conduct by being permitted to wait a year and a half until the eve of an arbitration hearing to, for the first time, raise an objection to the timeliness of the grievance.

Whatever merit there may be to this particular Union criticism (and there should be no doubt that both the integrity of the process and the interests of the parties should make full participation in all aspects of the grievance procedure the norm), there is no question that raising an objection to timeliness at the first reasonably available opportunity will likely preclude any finding of waiver. So, for example, where the circumstances giving rise to the timeliness objection are not known (leaving aside the question of whether they ought to have been known) until the eve of the hearing, the party raising the objection then may not be taken to have waived its right to do so.

This case, however, cannot be characterized in that fashion. Indeed, a cynical observer might be forgiven the conclusion that what permeates the instant case is the prolonged and repeated sound of heels being dragged on both sides of the collective bargaining divide. The Employer implements certain provisions some five months after the ratification of the new agreement; the Union, for reasons it declines to explain, delays filing a grievance for a year; the Employer declines to fully participate in the grievance procedure but some 15 months after the grievance is filed makes a demand for particulars; the Union complies with the request two months later; and finally, two working days before the scheduled hearing and almost a year and a half after the grievance was filed, the Employer, for the first time, advises that it intends to raise a timeliness issue. It is against this backdrop that the parties point fingers at each other, essentially urging this Board to find that the other’s delay was the more serious, the more troubling and the more fatal to its case.

But again and despite the view of the dispassionate cynical observer, if I were persuaded that something very recently brought to the Employer’s attention had set off the timeliness warning light for the first time – even at this late stage of the process – I might be not be persuaded to conclude that the Employer had waived its right to make the objection. However, I was provided with copies of both the grievance dated October 15, 2003 and the particulars provided by the Union dated March 14, 2005. There is simply nothing in the latter document which is not already contained in the grievance itself and which brings any issue of timeliness to the fore. Indeed, nothing can be pointed to in the Union’s particulars as raising timeliness issues for the first time in the Employer’s mind. In other words, on March 14, 2005 the Employer was in no better position to raise a timeliness objection than it had been on October 15, 2003. And (apart, of course, from the imminent commencement of the arbitration proceedings) neither did it suddenly face any more pressing urgency to do so. In the interim, it had foregone any opportunity to raise the issue either during the grievance procedure or during the Joint Review Process or by way of any other less formal communication between the parties.

In these circumstances, I am satisfied that the Employer has waived its right to object to the timeliness of the grievance.

Having regard to the foregoing, the Employer’s motion is hereby dismissed.

Hearing in this matter will continue on the days previously scheduled.

Dated at Toronto this 4^th day of April 2005