GSB#2009-1147

UNION#2007-0640-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Johnston)

Union

• and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Nimal Dissanayake

Vice-Chair

FOR THE UNION

Richard Blair Counsel Ryder Wright Blair & Holmes LLP Barristers and Solicitors

FOR THE EMPLOYER

Felix Lau Counsel Ministry of Government Services

HEARING

June 20, 2011.

INTERIM DECISION

1The Board is seized with the discharge grievance dated June 8, 2007 filed by Ms. Denise Johnston. When the hearing commenced on December 10, 2009, an issue arose between the parties as to whether or not the Board had jurisdiction under s. 48(16) of the Labour Relations Act to extend the time limits for referral of the grievance to arbitration. In a decision dated January 8, 2010, the Board concluded that the language in the collective agreement between these parties did not make referral to arbitration a part of the grievance procedure, and that therefore, the Board was without jurisdiction to extend the time limits for referral to arbitration. See, Re The Crown in Right of Ontario (Ministry of Attorney General) and OPSEU (Johnston) 2009-1147 (Dissanayake).

2When the hearing resumed on June 20, 2011, the employer moved for dismissal of the grievance on the grounds that it had been filed outside the mandatory time limits for referral to arbitration set out in the collective agreement. The union took the position that there had been no breach of any time limit in the collective agreement. This interim decision deals with that issue.

3The material provisions of the collective agreement are as follows:

Grievance Procedure

22.1 It is the intent of this Agreement to adjust as quickly as possible any complaints or differences between the parties arising from the interpretation, application, administration or alleged contravention of this agreement, including any question as to whether a matter is arbitrable.

STAGE ONE

22.2.1 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall meet, where practical, and discuss it with the employee’s immediate supervisor within thirty (30) days after the circumstances giving rise to the complaint have occurred to have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint.

22.2.2 If any complaint or difference is not satisfactorily settled by the supervisor within seven (7) days of the discussion and/or meeting, it may be processed within an additional ten (10) days in the following manner:

STAGE TWO

22.3.1 If a complaint or difference is not resolved under Stage One, the employee may file a grievance, in writing, through the Union, with their immediate supervisor who will in turn forward the grievance to their senior human resources representative for the ministry or his or her designee.

22.3.2 The senior human resources representative or his or her designee shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor his or her decision in writing within seven [7] days of the meeting with a copy to the Union steward.

22.4 If the grievor is not satisfied with the decision of the senior human resources representative or his or her designee or if he or she does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board [GSB] for a hearing of the grievance within fifteen [15] days of the date he or she received the decision or within fifteen [15] days of the specified limit for receiving the decision.

4The relevant facts, which were presented on agreement through opening statements of counsel, are as follows: On June 7, 2007 the grievor was terminated from her position as a Customer Service Representative at the court house in Cochrane, Ontario. She filed a grievance dated June 8, 2007, alleging unjust termination. For reasons not disclosed to the Board, the employer did not at any time hold a stage two meeting. The referral of the grievance to arbitration did not occur until July 14, 2009.

5In support of the motion for dismissal of the grievance as untimely, employer counsel relied on the Board’s decision in The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Goring) 2008-1661 etc. October 1, 2010 (Briggs). He submitted that the decision is dispositive of the very issue before me, and that the Blake principle compelled me to follow it.

6Union counsel conceded that in Re Goring also, the issue was the timeliness of referral to arbitration where no stage two meeting had been held. However, he submitted that in the particular circumstances of this case the Blake principle should not preclude the Board from deciding the matter based on the submissions before it. Counsel referred the Board to article 22.14.6, which provides that “The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the collective agreements”. He argued that the absence of any reference to article 22.14.6 in the Board’s decision in Re Goring indicates that the union there did not make the argument which he was making in the present case, that the employer’s interpretation results in the amendment of article 22.3.2. He submitted that article 22.3.2, by using the word “shall”, imposes a mandatory obligation on the employer to hold a stage two meeting and issue its decision following such meeting. As he put it, the decision in Re Goring amends the article to read to the effect that the employer shall, “if it so wishes”, hold a stage 2 meeting and issue a decision. Union counsel submitted that given that this legal argument, which goes directly to the interpretation of the relevant provisions of the collective agreement, was not made in Re Goring, the Blake principle does not apply. Counsel proceeded to submit that the decision in Re Goring, is manifestly wrong, in that it in effect replaces the mandatory provision with a discretionary provision.

7Counsel argued further that sound labour relations policy favours rejection of the interpretation accepted in Re Goring. He stated that the decision creates a pathological labour relations problem, where the employer has no incentive to deal with grievances. He argued that by negotiating the grievance procedure the parties have clearly contemplated that at stage two a discussion will take place where an attempt would be made to settle the grievance. The Board’s decision allows the employer to simply ignore grievances and to force employees and the union to proceed to arbitration directly. This is not conducive to sound labour relations.

8Counsel referred me to Re Mississauga Toyota [2010] O.L.A.A. No. 31, January 19, 2010, (Herlich). There the collective agreement allowed the referral of a grievance to arbitration provided written notice is given to the other party “within 10 working days after the receipt of management’s last decision”. The employer had taken the position that the two grievances before the arbitrator were inarbitrable because they were not referred to arbitration within that time limit.

9At paragraphs 33-36, arbitrator Herlich wrote as follows:

33. The employer’s position rests on the words “receipt of management’s last decision” in Article 6.01 as the “trigger” for the commencement of the 10-day time limit. And the employer advances an interpretation of “last decision” to essentially mean “most recent” decision. It does so, to some extent, to counter the union’s legitimate complaint that the employer ought not to be permitted to frustrate a grievance by not responding as contemplated by the agreement and later objecting that a referral to arbitration was too late. The employer says that, in such circumstances, the “last decision” might well be the response to the first stage grievance... Indeed, that is precisely what it argues in the Gast case – there was no step 2 grievance filed, there was no step 2 meeting held therefore “management’s last decision” was its response to the Step 1 grievance on September 18, 2008 and the 10 day clock began to run then.

34. I have difficulty with this interpretation for at least two reasons. First, it fails to consider the words of Article 5.04 which also contemplate the referral of grievances to arbitration but mentions a ten day period “after the decision under Step No. 2 is given”. Reading these two provisions together, it is difficult to conclude that the parties intended anything other than the completion of the second stage of the grievance procedure as the “trigger” for any referral to arbitration.

35. The second difficulty I have with the interpretation is the potential pathology it preserves. The parties might well correct their practice to insure that step 2 meetings typically occur before step 2 management decisions are made. But the employer’s interpretation would effectively require the union (particularly if it were concerned about possible recalcitrance or lack of employer cooperation in the grievance procedure – as this union might be) to refer every grievance to arbitration after receipt of the first stage reply for fear that the employer might refuse to hold a second step meeting or, more importantly, might simply not furnish a decision in the second stage, thus rendering the first stage reply to be “management’s last decision” for the purposes of the 10 day time limit. And while permitting the union to delay indefinitely in the face of a non-responsive employer is equally undesirable, to effectively require the union to refer all grievances to arbitration following the first stage reply would be a sorry state of affairs and no recipe for harmonious labour relations.

36. For those reasons, I prefer an interpretation of “management’s last decision” as one which connotes the final decision, i.e. the one taken at the conclusion of the grievance procedure as contemplated by the collective agreement, i.e. typically at or after the stage two grievance meeting.

10Union counsel urged me also to avoid the pathological labour relations problem recognized in Re Mississauga Toyota at para. 35, by interpreting the collective agreement in a manner which encourages the employer to discuss grievances during the grievance procedure and to make a decision, before obligating a grievor to take steps to proceed to arbitration. Counsel argued that given the mandatory obligation on the employer in article 22.3.2, the grievor and the union should be entitled to review the employer’s decision at stage two before deciding whether to proceed to arbitration. The union should not be required to “pathologically refer every grievance to arbitration”. Union counsel submitted that the trigger for the clock to start running for purposes of referral to arbitration is the holding of a stage two meeting and the rendering of the employer’s decision. This “trigger” has not occurred in this case, and the referral to arbitration was therefore not untimely. The Board was urged to find that the grievor had not applied for arbitration outside the time limit specified in article 22.4.

11In reply, counsel for the employer submitted that if the union is of the opinion that the decision Re Goring is manifestly wrong, it is entitled to seek judicial review of that decision. It is not entitled to re-argue the same issue before this Board. Counsel argued that the labour relations policy concerns argued by the union and recognized by arbitrator Herlich in Re Mississauga Toyota do not arise under the collective agreement here, because article 22.4 entitles a grievor to refer a grievance to arbitration where the employer does not issue a stage two decision within the specified time limits. Where no decision is received within those time limits, the clock begins to run for referral to arbitration, whether or not a formal stage two meeting had occurred as required by article 22.3.2. Counsel explicitly conceded, in answer to a question from the Board, that he was not disputing that the holding of a stage two meeting is mandatory under article 22.3.2.. His position was that the failure by the employer to comply with that obligation had nothing to do with the running of the clock for purposes of referral to arbitration. This, he submitted, is the effect of the decision in Re Goring.

12In Re Blake, 1276/87 etc., then GSB Chair Shime expressed his opinion on what the Board’s approach should be when a party attempts to convince the Board, as the union does here, to depart from its previous decisions. After recognizing that ad hoc boards of arbitration in the private sector generally follow a policy of not departing from earlier decisions unless such decisions are manifestly in error, at p. 8-9, Mr. Shime wrote:

But the Grievance Settlement Board is one entity – it is not a series of separately constituted boards of arbitration. Under Section 20(1) of The Crown Employees Collective Bargaining Act there is “a Grievance Settlement Board” – that is, one Board. Under Section 20(4) the Grievance Settlement Board may sit in two panels and under Section 20(6) a decision of the majority of a panel is “the decision” of the Grievance Settlement Board.

Thus each decision by a panel becomes a decision of the Board and in our opinion the standard of manifest error which is appropriate for the private sector is not appropriate for the Grievance Settlement Board. The Act does not give one panel the right to overrule another panel or to sit on appeal on the decisions of an earlier panel. Also, given the volume of cases that are currently administered by this board, the continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in turn creates undue administrative difficulties in handling the case load.

We are mindful, however, that there is no provision for appeal and there are limits to judicial review. While it is our view that the “manifest error” theory is too lax a standard, we recognize that there may be exceptional circumstances where an earlier decision of this board might to be reviewed. At this point we are not prepared to delineate what constitutes exceptional circumstances and the fleshing out of that standard will be determined on a case by case basis. The onus will be on the party seeking review to establish exceptional circumstances.

13The approach set out in Re Blake has generally been followed by this Board. This is not surprising because it makes eminent sense for a Board such as the Grievance Settlement Board. In the present case, union counsel submitted that the decision in Re Goring is manifestly wrong. Additionally, he has submitted that this wrong decision was made in the absence of a legal argument which he is making in the present proceeding. It was submitted that the denial of jurisdiction to amend its provisions is a fundamental feature of the collective agreement, and since that provision was not considered in Re Goring, the Board should determine the instant matter based on the submissions before it, rather than simply perpetuating a prior erroneous decision.

14The union has conceded that the facts and the issue in Re Goring were the same as in the present matter. Re Blake, explicitly recognizes that in “exceptional circumstances” which it declined to delineate, it may be appropriate for the Board to depart from a prior decision, which in its view is manifestly wrong. The union’s position, in effect, is that such exceptional circumstances exist here, which justifies the Board revisiting an issue which it had previously decided.

15I am convinced that the Board in Re Blake did not intend to encourage the perpetuation of a result which is reached in the absence of a consideration of relevant legal authorities. Where the Board in the prior decision had considered the governing law and/or collective agreement provisions and ruled upon it, the Blake principle discourages a subsequent decision departing from the prior Board decision merely because the later Board disagrees with it. However, where relevant legal authorities had not been considered in the earlier decision, the Board is called upon to rule upon an argument hitherto not addressed by the Board. In such circumstances the Board is obliged to consider the merits of the argument and to rule upon it, even though it may lead to a final result which is different from the result reached in the previous decision. That would be an “exceptional circumstance”, envisaged in Re Blake.

16The Board in its interim decision in this matter dated January 8, 2010, in fact recognized this exception. There the Board was called upon to determine the issue of whether or not the collective agreement between these parties conferred jurisdiction on the Board to extend time limits for referral to arbitration. At paragraphs 8-10, the Board wrote:

8Employer counsel submitted that Re Seager is dispositive of the issue before me. He submitted that the Board in that case considered the identical collective agreement language and the identically worded s. 48(16) of the Labour Relations Act. It made a clear pronouncement that s. 48(16) does not provide the Board the jurisdiction to extend time limits in article 22.4 for referral to arbitration. He submitted that Re Blake, (supra) mandates that I follow Re Seager. In his view, given the Seager decision, it would be inappropriate for me to consider Re Ajax Precision and Re James Bay General Hospital.

9Union counsel argued that I should not follow Re Seager, and that the Blake principle has no application in the particular circumstances. While union counsel offered alternate reasons for not applying the Blake principle, I need consider only one. Counsel argued that both Re Seager and Re Cherry, pre-dated the decision of the Ontario Divisional Court in Re James Bay General Hospital (supra). The Board therefore did not have the benefit of the guidance of the court which had refined the law that had existed under Re Leisureworld. Counsel submitted that in these circumstances the Blake principle does not apply and that I should consider the court decision in Re James Bay General Hospital, without simply following the outdated Board case law.

10Both counsel advised me that their research did not turn up any decision of this Board on this subject, which post-dated Re James Bay General Hospital. The courts have held, and it is now accepted, that when interpreting the Labour Relations Act to determine jurisdiction, the Board is required to be correct. See, Re Leisureworld (Div. Ct at para. 8). The Court in Re James Bay General Hospital has provided an interpretation of s. 48(16) which clarifies and refines the law that had evolved following Re Leisureworld. This Board did not have an opportunity, in Re Cherry or in Re Seager, to consider the ramifications of this refined interpretation of s. 48(16) on the language in the collective agreement between these parties. In the circumstances, it is incumbent upon me to do so. I agree with union counsel that the Blake principle does not prevent this Board from considering a matter that has not been previously considered and decided by the Board. See, Re Duffy, 2007-2737 (Keller).

17Thus, the Board proceeded to consider the impact of the court decision which post-dated the prior Board decision. Even though in the final result the Board did not depart from the prior decision, it was prepared to consider and rule upon the legal argument not made in the prior decision.

18This is not to say, however, that every time a party makes any “new” argument, the Board should be willing to consider departing from a prior decision. That would be to allow a party “another crack”, something Re Blake clearly intended to avoid. It is not possible, nor is it desirable, to attempt to delineate or define what ‘‘new arguments” would or would not amount to an exceptional circumstance as would justify the Board from departing from its prior decisions. That is a decision to be made on a case by case basis having regard to the whole context including the significance of the issue in dispute and the ‘‘new argument” presented. One such circumstance recognized by the Board (in its decision dated January 8, 2010 in this matter referred to at para. 22 supra) is a significant judicial pronouncement that directly bears upon the issue in dispute, which had not been considered in the prior decision(s).

19Having carefully considered the submissions of the parties, I have concluded that it is not appropriate to depart from the Boards decision in Re Goring. It is reasonable to assume that in Re Goring the union did not cite article 22.14.6 nor argue explicitly that the employers argument amounts to an amendment of article 22.3.2. Nevertheless, the unions argument there was that the employers interpretation was wrong and that its interpretation was the correct one. While the union primary position was that ‘‘the delay in the processing of these grievances occurred during the grievance procedure and therefore this Board has the jurisdiction to extend time limits’’ (Re Goring, at para. 5), it also argued at (para.11) that:

This is a case where the Employer failed to meets its Collective Agreement obligation to hold a Stage Two meeting to discuss the disputes under the grievance procedure. Accordingly, it is unclear at which point the ‘‘clock starts to tick” for the referral to arbitration. There was no event here that locked in the date for referral to arbitration. The requirement to refer these matters to arbitration is only triggered when a response from the Employer is received.

And at para: 12 that:

The effect of the Employer`s argument is that once a grievance is filed the clock automatically starts and irrespective of whether there is a bona fide labour relations reason for a delay in holding a Stage Two meeting, that ‘‘ticking clock” continues. Labour relations demands flexibility and reasonableness. This is surely the case when dealing with filed grievances.

At para. 9, the employer`s position is set out to the effect that:

That failure to hold a Stage Two meeting is not a relevant factor for this Board to take into account in this matter. No answer from the Employer is the same as an unsatisfactory answer. Put simply, when the grievor received no reply from a senior human resource representative or the time frame for the scheduling of a Stage Two meeting had elapsed, the Union had an obligation to escalate these grievances with a referral to arbitration. Failure to do so renders this Board without jurisdiction.

20At para.19 Vice-Chair Briggs disagreed with the union’s position that ‘‘the delay took place under the grievance procedure and therefore its referral to arbitration is not out of time”. Then at paragraphs 20-22, she concluded:

20In my view, the lack of a Stage Two meeting or a decision in writing simply means there was no settlement at Stage Two and therefore the matter may be referred to arbitration by the Union on behalf of the grievor. Article 22.4 is clear that if the grievor ‘‘does not receive the decision within the specified time, the grievor may apply, through the Union, to the Grievance Settlement Board (GSB) for a hearing of the grievance within fifteen (15) days of the date he or she received the decision or within fifteen days of the specified time limit for receiving the decision. ”

21In this case more than two months passed after the ’’specified time limit for receiving the decision” and therefore I am without the jurisdiction to hear and determine these six grievances.

22I agree with the Employer that it would make no labour relations sense if this Board were to determine that the Employer could, in effect, foreclose grievances from proceeding in a timely fashion, or indeed at all, merely by failing to hold Stage Two meetings or by failing to otherwise participate in the grievance procedure. In the event that the Employer elects not to meet its Collective Agreement obligations regarding the processing of grievances, the “clock continues to tick’’.

21The foregoing establishes that the submission on the meaning of article 22.3.2 in Re Goring was, in substance, the same as here. While article 22.14.6 may not have been explicitly cited, when a party argues that a particular provision means X and not Y, it is implicitly stating that accepting Y would be inconsistent with the intention of the parties. The fact that the union in Re Goring did not articulate, as counsel here did, that the employer’s position amounts to an amendment contrary to article 22.14.6, does not make counsel’s argument a new legal argument. It is a new, and perhaps a better, articulation of the same argument.

22In any event, I do not read Re Goring as union counsel does. That decision does not, conclude, directly or implicitly, that the employer’s obligation under article 22.3.2 to hold a stage two meeting is not mandatory. What it does state is that despite the employer’s failure to comply with its collective agreement obligations the ‘‘clock continues to tick”. In this regard, I also note that employer counsel here explicitly conceded that the obligation to hold a stage two meeting was mandatory. His position, which was also the position accepted by the Board in Re Goring, was that the breach of the collective agreement obligation by the employer is not a relevant factor with regard to the timeliness of the referral of a grievance to arbitration.

23With regard to the unions policy argument, I agree that the parties have contemplated, by negotiating the language in article 22.3.2, that an attempt will be made to discuss and resolve grievances at a stage two meeting between the union and a senior employer representative or his or her designee. I also agree that such an attempt to resolve grievances before proceeding to arbitration makes very sound labour relations sense. In Re Mississauga Toyota, arbitrator Herlich expressed disagreement with the interpretation urged upon him by the employer based on the language in the collective agreement, and also set out the policy consideration as further support for rejecting the employers interpretation. Here, despite Re Goring and the instant decision, the employer`s obligation expressed in article 22.3.2 remains intact. Whatever remedies the union may have with regard the employer’s failure to comply with it, the Board has held in Re Goring that such non-compliance does not prevent the clock from ticking for purposes of referral to arbitration. While article 22.3.2 is not a model of clarity, that proposition is consistent with the parties’ intention to resolve disputes under the collective agreement ‘‘as quickly as possible”, expressed explicitly in article 22.1. On the other hand, accepting the union’s position would allow grievors and the union to sit on grievances indefinitely awaiting a stage two response from the employer and to seek arbitration months or even years later, as the grievor here has done. That is not consistent with the parties’ expressed desire to resolve disputes ‘‘as quickly as possible”.

24The instant grievance was referred to arbitration more than two years after it was filed. For all of the foregoing reasons, the Board concludes that the referral was out of time. Given the Board’s earlier finding that it lacks jurisdiction to extend time limits for referral to arbitration, the employer’s motion is granted and the grievance is hereby dismissed.