GSB#2011-0486

UNION#2011-0217-0012

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Policy)

Union

• and -

The Crown in Right of Ontario (Niagara Parks Commission)

Employer

BEFORE

Felicity D. Briggs

Vice-Chair

FOR THE UNION

John Brewin Ryder Wright Blair & Holmes LLP Counsel

FOR THE EMPLOYER

Ian Campbell Fasken Martineau DuMoulin LLP Counsel

HEARING

June 4, December 16, 2015

Decision

1On February 11, 2011, a policy grievance was filed that alleged the Employer had violated the Collective Agreement by failing to submit union dues for those in the “apprenticeship classification”. By way of remedy the Union requested full redress.

2At the first day of hearing the Employer stated that it wished to argue a preliminary motion that this matter cannot proceed due to the significant delay in the filing of the grievance. It relied upon the equitable doctrine of laches and further contended that the grievance must be dismissed because the Union has abandoned its rights to claim the apprentices are part of the bargaining unit.

3For the purposes of the preliminary motion, in an effort to avoid the calling of evidence, the parties agreed to proceed by way of agreed facts. The agreed facts are:

• The Union filed the policy grievance that is the subject matter of this arbitration on February 11, 2011. The grievance alleges that the Employer “has failed to submit dues for apprenticeship classification”. A copy of the grievance is attached at Tab 1 of the Employer’s book of documents.

• The parties agree that arbitrator Felicity Briggs is properly appointed and has jurisdiction to hear this matter.

• A copy of the Collective Agreement in effect between the parties as at the date of the grievance is attached as Exhibit “B”.

• Between February of 2011 and December 2015, between 5 and 10 apprentices have been employed by the Employer at any given time. As of December 14, 2015, there are presently five (5) apprentices employed by the Employer. a list of their current positions/titles can be found below:

  (a) Painter Apprentice – (x1)

  (b) Welder Apprentice – (x1)

  (c) HVAC Apprentice – (x1)

  (d) Apprentice Plumber – (x1)

  (e) Mechanic Apprentice (Golf) – (x1)

• The bargaining unit was originally established through negotiations between the parties (as opposed to a certification order), in or around 1966.

• The parties met on November 2, 1966 to establish a bargaining unit. Among other things, the parties agreed during this meeting that “all apprentices at the School of Horticulture” would be excluded from the bargaining unit. A copy of the minutes from that meeting can be found at Tab 2 of the Employer’s book of documents.

• The first collective agreement between the parties was entered into in 1967.

• Apprentices have been regularly and continuously employed by the Employer since at least the mid 1960s.

• Apprentices have never paid union dues.

• The Union has, at all times, been aware that the Employer employed apprentices and that apprentices were not being treated as part of the bargaining unit by the Employer.

• At no time has there been a classification or wage rate in the collective agreement for apprentices.

• The present grievance is the first time that the Union has ever taken the position that apprentices, are or should be part of the bargaining unit.

• Since the 1970s, and to this day, apprentices’ employment with the Employer have been governed by the terms of individual Apprenticeship Work Agreements. These Apprenticeship Work Agreements state that apprenticeships are non-bargaining unit positions and that employees who participate in the program are not entitled to benefits such as pension, group insurance, attendance, credits, compassionate or bereavement leave. Samples of Apprenticeship Work Agreements are found at Tabs 11 through 16 of the Employer’s book of documents.

• On March 30, 1978, the parties entered into a Memorandum of Settlement confirming the terms under which their collective agreement would be renewed. Attached to this Memorandum of Agreement is a letter from the Assistant General Manager of the Employer to the Union outlining the basis upon which apprentices would be permitted to apply for positions in the bargaining unit. The final paragraph of the letter confirms that all “other terms for apprenticeship programs within the Niagara Parks Commission are covered by the Apprenticeship Work Agreement”. A copy of this letter is attached at Tab 3 of the NPC’s book of documents.

• Between 1967 and 1985, the collective agreement contained a single provision (Article 16) that addressed apprenticeships for Tree Climbers and Gardeners.

• The issue of apprentices was raised during bargaining during collective agreement negotiations in 1980. Based on notes found at Tabs 4, 5 and 6 of the NPC’s book of documents, the NPC’s position during these negotiations was that the parties should not be negotiating about apprentices because apprentices did not pay union dues and were not members of the bargaining unit.

• The single provision in the collective agreement that referenced apprentices (formerly Article 16) was removed from the collective agreement pursuant to a Memorandum of Settlement between the parties dated November 13, 1985, a copy of which can be found at Tab 7 of the Employer’s book of documents.

• Since 1985 there have been no provisions in the collective agreement dealing with apprentices or apprenticeships.

• The topic of apprentices was not raised in bargaining between 1985 and 2000. In the fall of 2000, the Union made a proposal to establish an apprenticeship and training committee to advise the parties about the development and operation of the apprenticeship program. This proposal was rejected by the Employer. Instead, a letter of agreement was subsequently agreed to that proves the Union with the ability to provide input through the Employee Relations Committee if the Employer determined that it was necessary to create new apprenticeships. A copy of the Union’s initial proposal can be found at Tab 8 of the Employer’s book of documents. A copy of the Letter of Understanding, which remains attached to the collective agreement to this day, can be found at tab 9 of the Employer’s book of documents.

• Over the years, the Employer developed a number of policies applicable to apprentices. Specific policies were created to deal with, among other things, how vacation credits would be determined for those who participated in the apprenticeship program and were later hired into the bargaining unit. This policy was communicated to the Union via a letter dated April 21, 1977. A copy of this letter can be found at Tab 17 of the Employer’s book of documents.

• Until this grievance was filed, the Union had not advanced grievance(s) challenging the status of apprentices.

4The relevant provisions of the collective agreement are as follows:

1.01 The Employer recognizes the Union as the sole and exclusive bargaining agent for all employees of the Employer save and except Park Policy, Servers, students and personnel listed in Appendix 1 hereto. No student employee will supervise bargaining unit employees.

Part B – Appendix 1 – Seasonal Excluded Positions

The Employer, twenty (20) days prior to excluding an existing position from the bargaining unit shall inform the Local President in writing with a copy to the Regional Office of OPSEU. The regional notice shall contain a brief written description of the position and its work location and the name of the incumbent.

Food Services – (nine manager, supervisor and chef positions listed)

Retain and Attractions Heritage – (twelve assistant manager, manager and supervisor positions listed)

Community Services – (two supervisor and one chef position listed)

Marketing and Business Development - (one supervisor listed)

Technical – Services Transportation – (four assistant manager or supervisor positions listed)

Corporate Services (Human Resource Staff)

Other Exclusions – Part-time employees who work for not more than 24 hours per week – Students - Servers

EMPLOYER SUBMISSIONS

5The Employer began by noting that since the Employer voluntarily recognized the Union approximately fifty years ago, there have been twenty-three collective agreements negotiated and agreed upon by the parties. There have been apprentices in the workplace – most of whom are in the trades – since the beginning of this labour relationship and they have never been considered to be part of the bargaining unit. None of their working conditions have been bargained collectively and they have never had Union dues deducted. Indeed, in the various employment contracts signed by apprentices over the years there was an express provision set out making it clear that they are not members of the bargaining unit. That provision has varied somewhat but has consistently stated something akin to, “as an apprentice you will be excluded from the bargaining unit and are not covered by the terms and conditions of the collective agreement”. Those Apprenticeship Work Agreements also set out, “The apprenticeship is a training program and when concluded does not in any way guarantee probationary or regular employment with the Niagara Parks Commission”. This is not a case where there might be some ambiguity or confusion. The practice has been known at all times to the employees and the Union.

6The Employer’s preliminary motion to dismiss relies on the doctrine of laches and abandonment. The Employer reminded the Board that the Union filed the instant grievance in 2011 – some fifty years into the bargaining relationship between these parties. In the event that this matter is allowed to proceed on the merits it will be difficult to proffer evidence given the passage of time due to the retirement of various key witnesses and many records that are no longer available.

7Mr. Campbell, for the Employer, reviewed the documents provided. It was noted that with a number of the Apprenticeship Work Agreement was an attachment which revealed at that the time the apprentice had completed the program and was appointed to a full time position, a probationary period was required. No such provision would be necessary if the apprentices were already members of the bargaining unit.

8While there was an article in the collective agreement regarding the “apprenticeship in-service training” for some period of time, it was deleted from the collective agreement in 1985. The Employer noted that it was not until the collective bargaining session in October of 2000 that the parties agreed to insert a provision stating, “should the Niagara Parks Commission determine that it is necessary to create new apprenticeships the Union shall be invited to provide input through the Employee Relations Committee”. This provision was considerably different from the original proposal tabled by the Union during that round of bargaining and it is apparent from those documents that the Union knew the Employer did not consider apprentices to be a part of the bargaining unit.

9The Employer also relied upon a notice sent to “seasonal bargaining unit staff” in July of 1993 which stated “time spent as an Excluded or Apprentice Employee was included in the calculation of seniority date, provided the Employee is currently in the Union”. This communication was sent to employees after the parties “met to discuss the preparation of Seniority Lists for NPC Seasonal Bargaining Unit Employees”. This document again makes clear that the Union was well aware of the Employer’s view that apprentices were not part of the bargaining unit.

10The final documents the Employer directed to the Board’s attention dealt with the matter of vacation credits for apprentices. Those memoranda set out that when apprentices “who commence employment following apprenticeship completion will receive vacation credits based on the date they commenced their apprenticeship”. Again, it is apparent from these documents that apprentices are not employees in the bargaining unit.

11The Employer urged that this Board must dismiss the grievance on the basis of the doctrine of laches. There can be no doubt that a party can be prevented from attempting to exercise a purported right due to an unreasonable delay in bringing forward such a claim. There are two elements to laches, acquiescence and detriment. In this case the Union had knowledge of a breach. There can be no doubt - given the agreed statement of facts and accompanying documents - that the Union knew the Employer was treating the apprentices as being outside of the bargaining unit. The history of this matter spans almost fifty years without a dispute surely constitutes acquiescence.

12According to the Employer, in the instant dispute, the detriment it has suffered is the length of the delay itself. For the Employer to be able to meet the case the Union might assert, it would be required to tender viva voce and documentary evidence which would be highly problematic given that the people who were involved in various discussions are no longer available and many of the records are gone. While some documents were found it was entirely likely that much could not be recovered as the result of the considerable passage of time.

13There are additional sources of prejudice the Employer contended, such as the lost opportunity to bargain, the entrenchment of practices and development of programs over time. The Employer has relied upon the Union’s inactivity in this regard.

14The Employer asserted that a case can be dismissed on the basis of either laches or abandonment but in this matter, both doctrines apply. The Union has offered no reason for the length of the delay. Nothing in the agreed facts explains why – for almost fifty years – it did not bring this matter forward. That failure to do so supports the Employer’s view that it would be inequitable to allow the Union to bring this case forward.

15The Employer relied upon Re J. S. Mechanical v. United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States and Canada, Local 800 1979 CarswellOnt 1067, [1979] 2 Can. L.B.B.R. 87, [1979] O.L.R.B. Rep.110; Re Extendicare (Canada) Inc. Falconbridge & ONA (2004), , 135 L.A.C. (4th) 359 (Harris); Re Cybermedix Health Services Ltd. & OPSEU, Local 544 (1990), , 11 L.A.C. (4th) 334 (Brown); Re Hamilton Health Sciences & ONA (March 12, 2010) unreported (Slotnick); Re Health Sciences North & CUPE (August 10, 2015), unreported (Nairn).

UNION SUBMISSIONS

16Mr. Brewin, for the Union, said that the Board should reject the Employer’s motion because the only matter raised by the Employer that is of import is that of detriment. The Employer suggested that it could not proffer certain evidence given the passage of time. However, in order for the calling of evidence to be necessary in this case there would need to be a finding of ambiguity leading to the introduction of extrinsic evidence. Simply put, there is no ambiguity in the collective agreement that would allow for extrinsic evidence to be admitted.

17In the unlikely event that an ambiguity were to be found, the Union conceded that the Employer may be handicapped because witnesses might be difficult to find or perhaps even deceased. However, the sole provision of the collective agreement relied upon by the Union is the recognition clause which set out – very clearly – who is in and who is excluded from the bargaining unit.

18The Union contended that the extent of the bargaining rights of employees is a quasi-constitutional right. Arbitrators have reinforced the need to take a broad or liberal approach when considering the matter of bargaining rights.

19It was also asserted by the Union that this matter is a continuing grievance and therefore must be allowed to be heard on its merits. Each day that the Employer fails to consider these employees as part of the bargaining unit is a fresh breach of the collective agreement.

20Mr. Brewin noted that when the various doctrines asserted by the Employer are considered the pivotal issue is that of detriment and, simply put, none exists in this case. If this local did not assert its right to act for apprentices for fifty years it means only that it did not do so. It does not mean that the Union does not have the legal right to do so now, given the language of the collective agreement.

EMPLOYER REPLY SUBMISSIONS

21Mr. Campbell responded that if the language of the instant collective agreement is so clear then why have apprentices been excluded for fifty years. Further, this is a case – as set out in the documents provided – where there have been a number of changes to the collective agreement provisions. It is difficult to imagine that this matter could proceed without the need for evidence.

22The Employer noted that if the Union were right that it had bargaining rights for the apprentices all along, the doctrine of abandonment applies because there is no doubt that the Union did not assert those rights for almost fifty years. There is no need for a finding of detriment when considering the issue of abandonment.

DECISION

23The Union submitted that this matter should proceed to a hearing on the merits because the nature of this dispute – that is the issue of dues deduction and scope of the bargaining unit – is a continuing grievance.

24In Re Health Sciences North (supra) Arbitrator Nairn was seized with a grievance alleging that IT employees should be included in the bargaining unit. The Union in that case, as before this Board, alleged that the grievance should be considered a continuing breach of the collective agreement. Arbitrator Nairn opined that the litigation in Re United Glass and Ceramic Workers of North America, Local 246 and Dominion Glass Co. Ltd et al, (1972), , 1 L.A.C. (2d) 151 (Reville); reviewed at Source decision, [1973]2 O.R. 573 Div. Ct.) and affirmed at Source decision, [1973] O.J. No. 2320 (C.A.), has been the cause of some confusion in this regard. It was noted that prior to Re Dominion Glass (supra) arbitrators generally found that grievances relating to the scope of a bargaining unit were found to be continuing in nature. Subsequent to Re Dominion Glass (supra) the principles applying to continuing grievances and the application of those principles were inconsistent. In her thorough review of the jurisprudence Arbitrator Nairn said, beginning at paragraph 83:

A failure to remit dues and/or to apply the terms of the collective agreement to a position that has been treated as excluded from the bargaining unit are arguably the consequences of the improper exclusion of the position from the bargaining unit. However, the better arbitral approach in my view is one that recognizes that while the improper exclusion of a position or employee from the bargaining unit constitutes the most fundamental breach of the collective agreement, each failure to remit dues or otherwise apply the collective agreement terms to an improperly excluded position or employee constitutes a secondary but additional or repeated violation that also supports the filing of a grievance. There are other limits on a union’s ability to pursue a grievance and opportunities to limit remedy that contribute to the appropriateness of treating such grievances as continuing in order to deal with the merits of the claim.

As found in Casa Verde Health Centre, supra:

…the question of whether or not Mr. Probert was a member of the bargaining unit by virtue of the scope clause of the collective agreement was not a matter that arose only at the time of his hiring, but was something that could remain at issue on each day of his employment. Accordingly, the union policy grievance claiming dues in relation to his employment at Casa Verde Health Centre, was in the very least in the nature of a continuing grievance, as it concerned repeated acts of failing to remit dues, each such act being an alleged breach of the collective agreement.

Having regard to the above, I find that these grievances are continuing grievances and are therefore timely.

25I agree with Arbitrator Nairn’s analysis and finding. The grievance before this Board is of a continuing nature. However, as noted above, there are other limits on the Union’s ability to pursue this matter. In this instance the Employer has asserted that the grievance must be dismissed on the basis of an application of the equitable doctrine of laches and/or abandonment.

26The Employer contended that both of the generally applied principles of the doctrine of laches have been met in this case. The Union stressed that such a claim cannot be sustained.

27The first element of laches is that of acquiescence. No time was spent by the Union taking issue with the matter of acquiescence which is not surprising when paragraphs eight through eleven are reviewed. Those facts state:

• Apprentices have been regularly and continuously employed by the Employer since at least the mid-1960s;

• Apprentices have never paid union dues;

• The Union has, at all time, been aware that the Employer employed apprentices and that apprentices were not being treated as part of the bargaining unit by the Employer;

• At no time has there been a classification or wage rate in the collective agreement for apprentices.

28As the Union suggested, this case is “all about detriment”. It urged that the Employer has suffered no detriment and therefore the doctrine of laches cannot be applied in this matter.

29In Re University of Toronto (supra) Arbitrator Adell set out “an accurate statement” of the principle elements of laches as found at 14 Hals., 3rd ed, p.641, pp156:

…In determining whether there has been such delay as to amount to laches the chief points to be considered are (1) acquiescence of the plaintiff part, and (2) any change of position that has occurred on the defendant’s part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver or it’’ or where by his conduct and neglect he has, though not waiving the remedy, put the other part in a position in which it would not be reasonable to place him if the remedy were afterwards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.

30There has been much arbitral consideration of what constitutes “detriment” for the purposes of the doctrine of laches. Some of the jurisprudence put before this Board found that detriment occurred because the positions at issue had, prior to the filing of the grievance, been considered managerial and therefore the Employer could potentially have to overhaul its hierarchy. In the instant matter, the Employer suggested that passage of time – the considerable passage of time – is, in and of itself, detriment. After consideration, I must agree.

31It is apparent from the agreed statement of facts and accompanying documents that the topic of apprentices has arisen between the parties from time to time over the years. Three exhibits of the numerous exhibits provided to Board included minutes from meetings held to discuss apprentices. The first document in this regard were minutes of a meeting held in 1966 wherein the Union was voluntarily recognized and the parties were attempting to agree on the scope of the bargaining unit. Another document dated in 1978 outlined an agreement regarding the ability of apprentices to apply for permanent positions. Finally, a memorandum issued in 1993 revealed an agreement (which appears to have followed an arbitration award) regarding the calculation of seniority. That document stated, “time spent as an Excluded or Apprentice Employee was included in the calculation of seniority date, provided the Employee is currently in the Union.”

32The Employer stated that over the fifty years that have passed since the Union was voluntarily recognized many employer representatives have been responsible for dealings with the Union. It is entirely probable that some are no longer alive while the whereabouts of others might be difficult if not impossible to ascertain. So much time has elapsed so as to significantly prejudice the Employer if this matter were heard on the merits. Simply put, it could not proffer the evidence that it would need to challenge this grievance.

33I must agree with the Employer’s view. I am persuaded that there is detriment to the Employer arising from the significant period of time that has passed since the bargaining unit was established.

34Stating the obvious, fifty years is a long time. It takes no imagination to accept the Employer’s assertion that many people have been involved in the bargaining relationship with the Union. With each passing year - and certainly with the renewal of each passing collective agreement – the Employer would have no reason to think that it had to keep close documentary evidence and human resources personnel who were facile with the issue of the scope of the bargaining unit.

35Other adjudicators have taken into account the passage of time as a detriment. In Re J.S. Mechanical (supra), the Ontario Labour Board was considering whether the Minister of Labour had the authority to appoint a Conciliation Officer. The Union in that case had been voluntarily recognized and had negotiated a collective agreement effective from October 1, 1973 through April 30, 1975. On February 5, 1975 the Union served a timely notice to bargain. The Employer responded that it did not want to renew the collective agreement. The Union requested the assistance of a Conciliation Officer on May 23, 1975 and one was appointed. A meeting was convened on July 24, 1975. Eight days later the Minister wrote that the Conciliation Officer had reported a settlement but this was an error. The Union wrote to the Conciliation Officer that there was no settlement on August 7, 1975. Nothing further took place for over three years when on November 24, 1978 the Union asked the Ministry about the status of a No Board Report. A few days later it asked for the appointment of another Conciliation Officer which was opposed by the Employer on the grounds that the Union had abandoned its bargaining rights through a failure to assert them for a period in excess of three years. The decision stated, at para 5 the following:

In assessing the bargaining relationship between the union and the employer to determine whether or not a union has abandoned its bargaining rights, the Board considers various factors. Among other possible indicators, the Board looks to the length of the union’s inactivity, whether it has made attempts to negotiate or renew a collective agreement, whether the union has sought to administer the collective agreement through the grievance and arbitration provisions in the collective agreement, whether terms and conditions of employment have been changed by the employer without objection from the union as well as whether there are any extenuating circumstances to explain an apparent failure to assert bargaining rights.

36The Labour Board determined that it was satisfied that “through sleeping on its rights for almost three and a half years the union has abandoned its bargaining rights and may not at this point revive them”.

37In Re Cybermedix (supra) the Union grieved a violation of the collective agreement because the Employer failed to deduct due for full time Maintenance Department employees working at certain locations. The Union became certified in 1979 and the grievance was filed in 1988. The recognition clause provided that all employees “in Metropolitan Toronto save and except supervisors, persons above the rank of supervisor, office and clerical employees and persons regularly employed for not more than twenty-four hours per week and students employed during the school vacation period” were in the bargaining unit. The Employer argued that the grievance should be dismissed by application of the doctrine of laches. It argued that it was prejudiced as the result of its inability to gather evidence from the first round of bargaining held in 1979. It was determined by Arbitrator Brown that this fact constituted “clear detriment”. It was said at page 334 and 335:

….there is detriment because by the union’s failure to pursue its rights to bargain for these employees, the company cannot establish by available evidence through the parties’ negotiations prior to the current collective agreement whether this matter was dealt with or why these employees were excluded at that time. It has dealt with these individuals as part of management and accorded them with certain supervisory authority. Their salary is different and higher than might be expected if their classifications were under the agreement. They also have other indicia of supervisory authority which would lead employees to believe that they were members of management and not employees in the bargaining unit.

In this case therefore there is detriment both to the company as a party to the collective agreement and to the individuals who would be affected by the union’s claim to represent them being a direct consequence of the union’s unreasonable delay in asserting its bargaining rights for these groups of employees. For this reason, it must be found that the union cannot be allowed to proceed with its legal right to represent these employees in circumstances where it had taken no steps to do so following the certification on August 7, 1979, up to the date of the grievance. To allow the union’s present claim to represent the employees in these two departments I find would be inequitable. Therefore the doctrine of laches applies to preclude its claim to bargain for these employees.

38The matter before this Board involves a much longer period without union intervention. For the above reasons, I accept the Employer’s submission that this grievance should be dismissed as the doctrine of laches appropriately and properly applies.