GSB# 2022-9682; 2022-9683
UNION# 2022-0428-0004; 2022-0428-0005
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
Ontario Public Service Employees Union (Crawford et al)
Union
- and -
The Crown in Right of Ontario (Ministry of Transportation)
Employer
BEFORE
Nimal Dissanayake
Arbitrator
FOR THE UNION
Lesley Gilchrist Ontario Public Service Employees Union Supervisor of the Arbitrations Unit
FOR THE EMPLOYER
Jackson Donszelmann-Lund Treasury Board Secretariat Legal Services Branch Counsel
HEARING
May 17, 2023
Decision
1This decision deals with a preliminary motion by the employer objecting to the Board’s jurisdiction to hear and determine two group grievances. The objection is made on the grounds that the union had referred the grievances to arbitration without following the requirements set out in the collective agreement. For present purposes it suffices to note that both grievances in essence allege that the grievors were subjected to harassment, including gender-based harassment.
2The motion was argued on the basis of the following Agreed Statement of Fact (“ASF”) (Attachments omitted).
AGREED STATEMENT OF FACTS
The parties are bound by a Collective Agreement attached as Tab A.
On October 11, 2022, two group grievances were filed, which bear OPSEU numbers 2022-0428- 0004 (with 2 grievors) and 2022-0428-0005 (with 4 grievors) and GSB numbers 2022-9682 and 2022-9683 respectively.
Both of these grievances are listed as “Crawford et al”. For ease of reference, the parties will refer to 2022-0428-0004 as “Crawford 2” and 2022-0428-0005 as “Crawford 4”. Melissa Crawford, in addition to being a Grievor in this issue is also a Union Steward.
The parties are agreed that the grievances numbered 2022-0428-0006 and 2022-0428-0007 (GSB numbers 2022-9928 and 2022-9929 respectively) were referred in error and are duplicates of the grievances named in paragraph 2.
The Grievances are attached as Tab B
The email filing the grievances with Director, Centre for Employee Relations is attached at Tab C.
Crawford 2 is in regards to harassment, including gender based harassment. Crawford 4 is in regards to harassment. This is the subject matter of the grievance forms and neither party intends to agree as to the facts, merits or characterization of the grievances should they reach a hearing on the merits.
The grievances were also provided to Carl Gallimore the Marine Operations Manager on October 13, 2022. This email is attached at Tab D.
On October 27, 2022 the Human Resources Advisor, Lori Sloan-Kulba, wrote Jody Pringle, the President of local 428 inquiring about whether she should hold a single Formal Resolution Stage Meeting or two Formal Resolution Stage (“FRS”) meetings.
Mr. Pringle replied to Ms. Sloan-Kulba, referring the matter to the Grievors. The employer did not receive a further reply. This email string is attached at Tab E.
Article 22.3 of the Collective Agreement provides that the Employer must hold a Formal Resolution Stage Meeting within 15 days. “Day” is defined as a business day in the Collective Agreement. This period elapsed on November 1, 2022. No FRS meeting was scheduled or held prior to or on November 1st, 2022., and there was no further communication between the parties prior to November 1, 2022.
On November 3rd, 2022, the Grievor, emailed the HRA advisor, Ms. Sloan-Kulba, inquiring into the status of the scheduling of the FRS meeting. That same day Ms. Lori Sloan-Kulba responded to Ms. Crawford’s email and reiterated her previous inquiry regarding the scheduling of one or two FRS meetings. Eventually, on the afternoon of November 3rd, 2022, Ms. Lori Sloan-Kulba sent a meeting invite to the Union for two separate FRS meetings for “Crawford 2” and “Crawford 4” on November 4th, 2022.
On November 4th, 2022, prior to the meeting starting, Union Steward Paul Beaty emailed the HRA and advised the Employer that the Grievors were unable to attend the scheduled meeting. The Employer responded and asked if the Union agreed to the extend the timelines under Article 22.3. A copy of the email exchange between from November 3rd onward is attached at Tab F.
For the purposes of the Employer’s preliminary motion the Parties acknowledge and agree there was no mutual agreement to extend the timelines in accordance with Article 22.14.1.
On November 7, 2022 the Union referred the Grievances referred to in paragraph 2 to arbitration at the Grievance Settlement Board under Article 22.6 without further discussing the issue with Lori Sloan-Kulba. This letter is attached at Tab B.
On November 8th, 2022, the Employer, through HRA Lori Sloan-Kulba, offered to reschedule the FRS and two meeting invites were sent for November 10th, 2022. In response to this invite, the Union, through Mr. Beatty, advised that the Union did not agree to extend the timelines under Article 22.3 and that the Grievors would not be attending the November 10th, 2022 meeting. A copy of this email correspondence is also attached at Tab F.
On November 10, 2022 Ms. Sloan-Kulba alerted the Union that the Employer intended to raise a preliminary objection that the Grievances were improperly referred to the Board. This exchange is attached as Tab G.
This Agreed Statement of Facts is intended to be used for a single preliminary objection and should not be relied upon at any other stage of the hearing unless it is expressly agreed.
3Article 22 of the collective agreement titled “Grievance procedure consists of a number of sub- articles. Articles 22.3 and 22.6.1 are directly relevant to the dispute between the parties. They read:
22.3 The designated management representative shall hold a meeting with the employee within fifteen (15) days of the receipt of the grievance and shall give the grievor their decision in writing within seven (7) days of the meeting with a copy to the Union steward.
22.6.1 If the grievor is not satisfied with the decision of the designated management representative or if they do 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 they received the decision or within fifteen (15) days of the specified time limit for receiving the decision.
Employer Submissions
4Counsel pointed out that the grievances were filed on October 1, 2022. Therefore, Article 22.3 required that the employer hold Formal Resolution Stage (“FRS”) meeting with respect to the grievances within 15 days of that date. Counsel agreed that this requirement is mandatory given the use of the word “shall” in article 22.3. Applying the definition of “day” in article 22.14.2, the employer agreed that it had a mandatory obligation to hold the FRS meeting no later than November 1, 2022. If the employer had held the meeting on the last possible date, November 1, article 22.3 required the employer to provide its decision to the grievors within 7 days of November 1, 2022. That is, no later than November 10, 2022. Counsel submitted that, therefore, under article 22.3 the employer had time until November 10, 2022, to comply with its obligations to hold the FRS meeting and issue its decision to the grievors.
5Counsel pointed out that the grievances were prematurely referred to arbitration on November 7, 2022, at a time when the grievors had no authority to do so. Under article 22.6.1 they were authorized to refer the grievances to arbitration only (1) if they had been provided the employer’s decision, and they were not satisfied with it or (2) if they not been provided the decision within the specified time. Counsel stated that (1) above does not apply since no decision was provided by the employer. However, (2) above applied. In that situation, the grievors were entitled to refer the grievances to arbitration within 15 days of the specified time limit the employer had to for provide the decision. The window of time for referral to arbitration under article 22.6.1 did not open until the “specified time limit” for providing the decision expired. That did not happen until November 10. Therefore, by referring the grievances to arbitration on November 7, the grievors failed to comply with the grievance procedure in the collective agreement and had violated article 22.6.1.
6Counsel submitted that the jurisprudence is clear that the decision of the employer is what triggers the grievors’ entitlement to refer grievances to arbitration. At the time of the referral on November 7, the timelines specified in article 22.3 had not been exhausted. The time the employer had under article 22.3 to provide its decision did not expire until November 10. For the Board to hear the instant grievances referred to arbitration at a time when the authority to do that had not yet vested in the grievors would be to alter the terms of the collective agreement. Counsel reminded that article 22.14.6 explicitly provides that “The GSB shall have no jurisdiction to alter, change, amend or enlarge any provision of the collective agreement”.
7Counsel referred to two decisions of the Board, which he relied on for the proposition that the Board has no jurisdiction over grievances referred to arbitration prematurely. Re OPSEU (Samsone) and MCSCS, 2005-3698 (Petryshen) Re OPSEU (Michael) and MOT, 2021-0088 (Herlich)
8In Re Samsone (supra) the Board was dealing with two related grievances by the grievor. The employer raised a preliminary objection to the Board’s jurisdiction to deal with the grievances on a number of different grounds. The parties agreed that the Board ought to rule first on the objection that the grievances “were not filed or processed in accordance with the grievance procedure”.
9The facts relating to this objection were not in dispute. The Board noted that the grievor had been a union activist. He had been a union steward and became the local union president. As such, he would have been familiar with the collective agreement provisions relating to the grievance and arbitration procedure. However, rather than raising his complaint with the employer first, he referred it directly to the GSB.
10At paragraphs 28- 29 the Board wrote:
28There is no dispute about how grievances #1 and #2 were processed. In contrast to how the facial hair incident was challenged, Mr. Samsone did not make any effort to discuss the threat incident with a supervisor as required by stage one of the grievance 2010 CanLII 52660 (ON GSB) UN Book of Authorities Crawford et al - Preliminary 81 - 19 - procedure. Once he prepared the grievances, neither he as a grievor or as the Local Union President filed them with anyone in management at the TEDC. Of course, in the absence of filing the grievances with management, the stage two meeting mandated by the grievance procedure did not take place. It is the timely decision of management flowing from the stage two meeting which triggers the right of the Union to refer the grievances to the GSB. In this case, the grievances were prepared by Mr. Samsone on February 24, 2006, sent to the Union’s head office by facsimile on March 2, 2006 and then referred by the Union on that day to the GSB. There is no indication that the Employer agreed that the grievances could be processed in this way. Indeed, the Employer has consistently taken the position that Grievances #1 and #2 were not arbitrable because they were not processed in accordance with the grievance procedure contained in the Collective Agreement.
29I agree with Employer counsel’s characterization that there has been a complete failure in this instance to comply with the grievance procedure. The grievances were not filed with the Employer and the steps set out in the grievance procedure were completely ignored. The obvious purposes for which parties have a grievance procedure have been completely thwarted in this instance. Unless the parties were to agree otherwise, there is an obligation on a grievor or a party to ensure that the steps of the grievance procedure are followed. As article 22.14.6 provides, the GSB has no jurisdiction to alter or amend a provision of the Collective Agreement, including of course the grievance procedure provision. Although the focus of article 22.14.1, the deemed withdrawal provision, is on timeliness, the importance of following the grievance procedure is captured by the article. Arbitrators have consistently found that a failure to comply with the grievance procedure will deprive the arbitrator of jurisdiction to hear a grievance. What has occurred in the instant case goes beyond a mere technical breach of the grievance procedure. It is my conclusion that the complete failure to comply with the grievance procedure, particularly the failure to file the grievances with the Employer, deprives the GSB of jurisdiction to hear grievances #1 and #2. As the Employer has consistently maintained, these two grievances are not arbitrable.
11In upholding the employer’s objection to the Board’s jurisdiction, Vice-Chair Petryshen wrote:
31At the conclusion of his evidence, Mr. Samsone described the impact the threat incident has had on his life. He also provided me with a written statement that refers to his medical condition and his desire to have his grievances heard so that he can get closure and “try to repair the damage to the hole in my soul this Ministry has created.” Although one can be sympathetic to Mr. Samsone’s description of his personal circumstances, I cannot take jurisdiction over these grievances by ignoring the failure to process them properly through the grievance procedure.
12In Re Michael (supra), two grievances were before the Board for expedited mediation-arbitration pursuant to article 22.16 of the collective agreement. The employer raised two preliminary issues. First, that the facts asserted by the union, if accepted to be true, are not capable of establishing a prima facie case for the violations claimed. Second, that the grievances were not properly advanced through the grievance procedure and that the union had no authority to refer them to the GSB at the time it purported to do so.
13There was agreement that the Board should initially deal with the second grounds above. Arbitrator Herlich noted that the two grievances were very similar and examined the facts of the first grievance. It was filed on March 26, 2021, and referred to the GSB for arbitration on April 14, 2021. After the grievance was filed the employer wrote to the union suggesting dates/times for holding a FRS meeting within the 15-day timeline mandated by article 22.3, which ended on April 20, 2021.
14On April 13, 2021, the union responded as follows: “Based on past experience where nothing was ever resolved for our member (Maria Michael) at the first FRS meeting, the member would like this grievance to be forwarded to the GSB.”
15The next day April 14, without waiting for a response from the employer to the request that the FRS meeting be waived, the union referred the grievance to the GSB, with copy to the Treasury Board Secretariat employer contact, but not to any member of management at ministerial level local or otherwise. On April 16, still within the April 20 deadline for holding the FRS meeting, the employer wrote to the union, that it does not agree to waive the FRS meeting, and requested again that the union respond to the dates/times it had proposed.
16The union responded as follows: “Due to your delayed response and timeline, I forwarded the grievance to the GSB. The grievor agrees to attend the FRS if the employer can confirm that there would be a positive resolution of her grievance at this stage.”
17The employer in turn wrote back, informing the union that the grievance had been referred to the GSB prematurely without the employer’s agreement; that the union’s request for confirmation of a positive outcome as a condition of attendance at the FRS meeting was inappropriate; that since the union had not responded to the proposed dates/times, the FRS meeting will proceed at a specified time; and that if the union fails to attend the employer would be raising a preliminary objection in view of the union’s failure to comply with the requirements of the collective agreement.
18The union responded: “The grievor is not agreeable to having a FRS due to past experience of no resolution. That is why the grievor requested the employer to waive the FRS meeting.” Following the foregoing exchange no FRS meeting was held.
19At the hearing, the employer raised the preliminary objection. The employer’s position is set out by arbitrator Herlich at para.19:
19The employer’s position is straightforward: absent the mutual agreement of the parties to waive it, the FRS is a mandatory feature of the grievance procedure to which the parties are bound. The union’s failure/refusal to participate in an FRS meeting does not confer upon it the right to refer a grievance to arbitration. And, even if the failure to hold an FRS meeting might, in other circumstances, permit the union to advance the grievance to arbitration, in the instant case, the union purported to advance the matter to arbitration prior to the expiry of the prescribed time period for the scheduling and holding of the meeting.
20At paragraph 21, the Board quoted paragraphs 28 and 29 from Re Samsone, (see para. 10 supra), and wrote as follows:
22For its part, the union urges caution selecting the proper target for any finger pointing. In its view, it is the employer that has failed to abide by its collective agreement obligations. The employer is responsible to schedule and hold the FRS meeting (unless the parties agree to waive it). Given the union’s request to waive the meeting, the employer, in this case, had two and only two options available to it: it could have agreed to waive the meeting or it could have held it – it did neither and ought not to be permitted to rely on its own dereliction as a means to prevent these grievances from being heard on their merits.
23This last assertion must be rejected. It is common ground that no FRS meeting took place. Whether that was because the union did not attend at the appointed time or because, in view of the union’s final response, the employer did not attempt to convene the meeting (and those two appear to be the only possible alternatives – the facts before me were not clear on the point) is a distinction without a difference. There is simply no doubt that it was the union’s refusal that was the obstacle to holding the meeting and the reason none was held.
24What then are the consequences of a failure to hold the FRS meeting? The collective agreement does not answer this question, at least not explicitly. I agree, however, with the view expressed in Samsone, that: “It is the timely decision of management flowing from the stage two meeting which triggers the right of the Union to refer the grievances to the GSB.” And I also note that under the current collective agreement the FRS meeting (formerly called the “stage two meeting”) is the only guaranteed opportunity for the parties to meet, discuss and possibly resolve grievances short of a referral to arbitration. As such this meeting ought not to be dispensed with lightly.
25However, I also agree with the submissions of the union that an employer’s refusal to schedule and hold an FRS meeting ought not to be permitted to block access to this Board. But that, as I have found, is not what happened in the instant case.
26In the present case, the grievor and the union refused to participate in the scheduling or holding of the FRS meeting (short of the union’s preposterous “offer” to attend provided the employer meet the precondition of guaranteeing a “positive result”). It was common ground that these parties have had numerous occasions to deal with grievances filed on behalf of the grievor. It may well be that they have had a low success rate in resolving those grievances at the FRS stage. That, however, does not provide the union with the right to unilaterally dispense with those meetings. I was also puzzled by the union’s reference, in its email response, to the “[employer’s] delayed response and timeline” as some sort of justification for the premature referral of the grievance to arbitration. The employer’s response was well within the period prescribed by the collective agreement and the “timeline” referred to was never cogently articulated.
27Whether by application of Article 22.14.1 (as the Board in Samsone suggested) or simply by virtue of the preconditions to a referral to arbitration not having been met, I am satisfied the union lacked the authority to refer the matter to this Board when it purported to do so.
21Counsel submitted that the decision in Re Michael found that a union is not allowed to refer a grievance to arbitration because the FRS meeting was not held within 15 days of its filing. Under article 22.3 the union is allowed to refer to arbitration only after a FRS meeting is held and 7 days had elapsed from the date of the meeting. In the instant case those timelines had not been exhausted. The earliest date the union was authorized to refer to arbitration was November 10. By referring the grievances to arbitration on November 7 it had acted prematurely, and thereby violated article 22.6.1.
22Counsel referred to Re Samsone (supra) and submitted that the case law is clear that non-compliance with the grievance procedure mandated in the collective agreement deprives the Board of jurisdiction, and results in the dismissal of the grievance. The Board was urged to dismiss the grievances in this case.
Union Submissions
23Referring to the ASF and the string of emails between the employer and the union, union counsel submitted that there is no doubt that article 20.3 imposes a mandatory obligation on the employer to hold FRS meeting within 15 days of October 11, 2022, when the grievances were received. It is also agreed that the 15-day deadline expired on November 1, and no FRS meeting had been held. The employer clearly did not comply with its mandatory obligation.
24Counsel pointed out that prior to November 1st, 2022, the employer had not even attempted to schedule a meeting. It proposed dates only after the 15-day time limit had expired. Yet the employer was pointing the finger at the union. The employer’s position amounts to an assertion that it is free to schedule the FRS meeting on any time it chooses, even if the 15-day deadline had expired.
25Referring to the employer contacting the union on October 27th, 2022, to inquire if it preferred one FRS meeting for both grievances or two separate meetings, counsel submitted that the mandatory obligation to comply with the 15-day timeline was not contingent on any union input. The obligation to meet the timeline is solely on the employer. It is not a shared obligation. Yet, when the union did not respond, the employer took no further action and let the deadline pass. In fact it was the union that made the next move by writing to the employer on November 3, after the deadline had expired, inquiring about the status of the FRS meeting. The same day, the employer unilaterally fixed two separate FRS meetings for the following day, November 4, and sent Zoom invites. After the union informed that the grievors were unable to attend the meetings the next day, the employer sought the union’s agreement to extend the time limit under article 22.1.1. The union did not agree.
26Counsel submitted that the employer’s assertion that it was acting in good faith and was not maliciously attempting to block the union from referring the grievances to the GSB is simply irrelevant. Similarly, the fact that the union did not respond to the employer’s inquiry about the union’s preference between holding one or two meetings does not release the employer from its mandatory obligation to meet the deadline. When the union did not communicate its preference, the employer was obliged to proceed and hold the meeting within the November 1st deadline. Instead it did absolutely nothing until the union followed up after the deadline had passed. Union counsel submitted that article 22.3 is not a discretionary or equitable provision. It is a mandatory obligation imposed solely on the employer. In fact, the only relevant fact is whether the FRS meeting was or was not held by the deadline set out in article 22.3. The undisputed answer is “no”.
27Union counsel submitted that the case law the employer relies on emphasizes that stage 2 meetings (previous collective agreements) and FRS meetings are important and should not be lightly dispensed with, because these meetings enable the employer and union identify and discuss issues in dispute and attempt to settle them before proceeding to arbitration. That is the purpose of FRS meetings. The employer’s argument that it can issue a decision without holding the mandatory FRS meeting would defeat the whole purpose of article 22.3.
28Counsel submitted that, unlike the instant case, the decisions the employer relies on were not about a party failing to comply with a mandatory time limit. Re Samsone, was about a grievor avoiding the whole grievance procedure in the collective agreement by directly referring the grievances with the GSB for arbitration. In Re Michael, the employer had attempted to schedule the FRS meeting within the 15-day period. The grievor insisted that he would attend a FRS meeting only on the condition that the outcome of the meeting would be a positive one for him. In both cases it was the employees’ conduct or inaction that made it impossible for the employer to comply with its obligation under article 22.3. None of that happened here. The union or the grievors were not in any way responsible for and did not contribute to the employer’s failure to meet the 15-day deadline.
29Counsel pointed out that the employer’s argument that the union referred the grievances to arbitration before the expiry of the 7 days from the last date of the FRS meeting the employer had to issue its decision, that is November 10th, has no merit. Counsel submitted that the 7 days the employer has to issue a decision, must be 7 days from the date a FRS meeting held in compliance with article 22.3. A FRS meeting held on a date chosen by the employer after the deadline had expired is not “a FRS meeting” for purposes of article 22.3. Also, the employer’s “decision” must be one flowing from what was discussed at a FRS meeting held in compliance with article 22.3. If no legitimate FRS meeting compliant with the 15-day time limit is held, there can be no “decision”. The GSB case law then requires the grievor and the union to escalate the grievance to arbitration within the time limit in article 22.6.1.
30Counsel pointed out that if the employer’s position is correct, that means, in this case the employer would have complied with its article 22.3 obligation if it holds the FRS meeting, after the 15-day deadline, as long as it provides its decision prior to November 10th. She submitted that would in effect be to ignore the mandatory 15-day time limit in article 22.3. Counsel cited numerous arbitration awards on cannons of interpretation of collective agreements. She also reviewed the following GSB decisions, which she submitted support the union’s position that it was entitled, and in fact required, to refer the grievances to the GSB as soon as the employer’s deadline for holding elapses with no FRS meeting held: Re Goring, 2008-1611 (Briggs); Re Johnston, 2009-1147 (Dissanayake); Re Saguiliano, 2011-2303 (Briggs).
Employer Reply
31Counsel reiterated that the union’s position that it was entitled to refer the grievances to arbitration upon the expiry of 15 days from the date of filing cannot be correct because that would be inconsistent with the provision in article 22.3 that it is a decision by the employer not satisfactory to the grievor that triggers the entitlement to refer to arbitration. On November 7, 2023, when the grievances were referred to the GSB the employer had not yet provided its decision. Counsel submitted that in any event a breach of article 22.3 by the employer by failing to hold the FRS meeting within the 15-day time limit did not justify the union’s subsequent breach of the article 22.6.2 by referring the grievances to the Board prematurely.
DECISION
32I start with identifying what exactly the employer’s preliminary motion whereby it seeks the dismissal of the two grievances, and the positions of the respective parties. In a nutshell, the employer’s position is that in referring the grievances to arbitration, the union has not followed the collective agreement provisions relating to the grievance and arbitration process in article 22. Specifically, it alleges that the union violated article 22.6.1 by making the referral prematurely. The union disagrees. It asserts that it had the authority to refer the grievances to arbitration at the time it did on November 7, 2022, and seeks the dismissal of the employer’s motion.
33The rights and obligations in dispute are governed by article 22 of the collective agreement, which sets out a step by step process the parties are required to follow leading up to the referral to arbitration. The grievance process begins with article 22.1 which provides that an employee who has a complaint shall, where practical, meet with the immediate manager to give him/her the opportunity settle the complaint.
34Next, article 22.2 provides that if the complaint is not settled at the article 22.1 step, the employee may file a grievance with the manager in writing through the union within certain time limits. In this case there is no allegation that the steps under articles 22.1 and 22.2 had not been followed by the grievor.
35The dispute between the parties is about the next step in the process set out in article 22.3, which imposes a mandatory obligation on the employer to hold a FRS meeting, (1) “within fifteen (15) days of the receipt of the grievance”, and (2) to provide its decision in writing to the grievor “within seven (7) days of the meeting with a copy to the union”.
36Based on the ASF and the facts presented during submissions it is clear, and I find, that no FRS meeting was held, within the 15 days mandatory time limit from the receipt of the grievances by the employer or at any time. Therefore, the employer did not comply with that mandatory obligation under article 22.3.
37Faced with this undisputed fact, the employer takes the position that although the meeting had not been held within 15 days of receipt of the grievance, there was time for the employer to catch up on the delay, and hold the meeting and still provide its written decision within 7 days of the last possible day (i.e. the 15th day) it had to hold the meeting under article 22.3. In other words, although it missed the 15-day timeline at the front end, it was still possible for it to meet the deadline to issue its decision within the deadline it would have had, if it had held the FRS meeting within 15 days of receipt of the grievances. If the employer was given the opportunity to do that there would have been no overall delay in completing both obligations it had under article 22.3. It would have held the FRS meeting and also provided its decision by November 10. However, the union denied it the opportunity to do that by referring the grievances to arbitration prematurely on November 7th. By “jumping the gun” the union acted in contravention of article 22.6.2 which authorizes it to refer to arbitration only after the employer’s decision is provided.
38I have set out in detail the union’s response to the foregoing submissions by the employer. I agree with the union. It bears repeating that the obligation to hold the FRS meeting is not discretionary or flexible. The parties have indicated their intention that the employer is not entitled to unilaterally extend the 15-day time limit, by explicitly providing in article 22.14.3 that “The time limits contained in article 22 may be extended by agreement of the parties in writing”. If the employer’s failure to meet the 15-day mandatory time limit resulted from difficulty deciding whether to have one or two separate FRS meetings, it was open to it to seek from the union an extension of the 15-day timeline under article 22.14.3 before that time limit had elapsed. It did not do so. It made that request after it had already violated the mandatory deadline. The union refused to agree in these circumstances.
39In the two Board decisions the employer relied on, Re Sansone and Re Michael, the factual circumstances were very different than those here. They both emphasize the mandatory nature of the steps of the process and the time limits imposed on both employers and unions/employees. In Re Sansone the grievance was dismissed in circumstances where the grievor referred the grievance directly to the GSB for arbitration, by-passing the prior steps set out in article 22. In Re Michael the grievor had thwarted the employer’s attempts to hold the FRS meeting in compliance with article 22.3 by insisting on a guarantee that the outcome of the meeting would be positive for him, as a condition for him attending a FRS meeting. In those circumstances the Board dismissed the grievances. A key factual feature in both cases was that there was no failure on the part of the employee to follow the grievance procedure provisions in the collective agreement. It was the employee’s conduct that resulted in no FRS meeting being held. In the instant case, there was no infraction on the part of the grievor or the union.
40The employer did not put forward any specific facts to explain or excuse its non-compliance. Even if it did, that would not have relieved it from the mandatory time limit. If it had good reasons that made it difficult to meet the time limit, it ought to have presented those to the union before the time limit expired and sought its agreement to extend the deadline under article 22.14.3. Instead, it let the deadline pass without doing anything, and then scheduled a FRS meeting on a date of its own choosing which was beyond the deadline. Counsel suggested that the employer wanted to hold the FRS meeting and made good faith attempts to hold it. However, the facts are clear that by the time the employer took action , requesting an extension of time and fixing a date for the meeting, the deadline had already passed, and it had not complied with its mandatory obligations.
41Re Michael was a decision rendered following an expedited mediation - arbitration process under article 22.16. Thus, it has no precedential value, and as the decision itself noted, the reasons for decision are brief and succinct. The Board held that the grievor had not complied with the grievance procedure set out in article 22. However, in its reasons for dismissing the grievance it states that the employer’s failure to hold a FRS meeting within the 15-day time limit amounts to a negative decision by the employer, which triggered the grievor’s time limit for referral to arbitration.
42With respect, I find that such an interpretation is inconsistent with the language in article 22.3. The employer reasoning based on an “overall timeline” is creative, but also not sustainable considering the language used or the process the parties intended. If the parties intended to give the employer an overall time period as the employer asserts, it would have simply required that the employer hold the FRS meeting and provide its decision within 22 days of receipt of the grievance. Instead, they have set up several sequential steps for a grievance to progress through the grievance procedure towards arbitration with specified timelines between the two steps, 15-day limit between receipt of grievance and the FRS meeting, and 7 day limit between the meeting and the employer’s decision.
43In my view this choice of having two steps, one following the other, with time gaps in between the two was deliberate. As the Board has observed in decisions relating to article 22 reviewed above, the purpose of a FRS meeting is to allow the parties to identify the issues in disputes and factual circumstances that led to the filing of the grievance and to consider settling the disputes, or at least narrowing the issues. Therefore it makes sense, that the employer be given some time to prepare for the meeting, by discussions with Human Resources staff. senior management or legal counsel, to research and gather relevant documentation and information, as it deems necessary to be well prepared for the deliberations at the FRS meeting. Similarly, the parties intended to give the employer a period of time to do similar consultations, research etc. and carefully consider the union’s position presented at the meeting before making its decision. The parties intended that arbitration must be resorted to only after careful consideration at previous steps had failed to produce a resolution. The FRS meeting is unlikely to be productive if the employer attends the FRS meeting without preparation, and/ or it provides the decision off the cuff right away, without considering everything that happened at the meeting. For the same reasons if the FRS meeting is not real, but one that is deemed fictionally, that intention of the parties that the parties should have an opportunity to resolve issues, if not the whole grievance, would be defeated.
44Moreover, article 22.3 explicitly requires the employer’s decision be “in writing” and also be given to the grievor, with copy to the union. I find it to be an unreasonable stretch to interpret that the mere passing of the 15-day time limit amounts to a decision by the employer given in writing to the grievor and the union. The language in article 22.3 simply does not permit such an interpretation. Such an interpretation would amount to the Board amending or adding to the article, which is prohibited in the collective agreement itself in article 22.14.6.
45I next turn to the Board case law on the consequences of the employer not holding the FRS meeting within the mandatory 15-day time limit. In Re Goring (supra) Vice-Chair Briggs ( decision dated October 01, 2010 ) dealt with a motion by the employer that the Board lacked jurisdiction over 6 grievances filed on February 25, 2008, because they were not referred to arbitration within the mandatory time limit set out in then article 22.4 of the collective agreement. The union countered that the union’s delay was caused by the employer’s failure to comply with article 22.3.2 which required that the employer hold the stage 2 meeting (as it was called then) within 15 days of the receipt of the grievance, and give the grievor the decision in writing within 7 days of the meeting, with copy to the union. As the decision states at para. 9, the employer submitted that “when the grievor received no reply from a senior human resources representative or the time frame for the scheduling of a stage 2 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.”
46At paras 16-17 Vice-Chair Briggs referred to the interim decision dated January 8, in Re Johnston, 2009-1147 (Dissanayake), and wrote:
- In Re Johnston (supra), Vice-Chair Dissanayake did a thorough arbitral review including the earlier cases referred to above from this Board. That analysis was undertaken in an effort to determine whether referral to arbitration is a part of the grievance procedure according to the terms of the Collective Agreement between these parties. Beginning at paragraph 27 he stated: Upon a careful review, I am led to the conclusion that in this collective agreement, referral to arbitration is not made part of the grievance procedure. Referral to arbitration is dealt with in article 22.4, a sub-article of article 22, which appears under the hearing, "Grievance Procedure". Article 22.2.1 deals with "Stage One" which involves discussion of the employee's complaint with the immediate supervisor within a specified time period. If the complaint is not settled at stage one, article 22.2.2 provides for the complaint to proceed to stage two.
The heading "Stage Two" appears after article 22.2.2. Then article 22.3.1 provides for the filing of a written grievance through the union with the senior human resources representative or designee. That initiates stage two. Under article 22.3.2, management is required to meet with the employee and give its decision within specified time limits.
Article 22.4 is the referral to arbitration provision. A grievance, by the terms of article 22.4, may be referred to arbitration " If the grievor is not satisfied with the decision of the senior human resource representative or his or her designee, or if he or she does not receive the decision within the specified time" at stage two. In short, where no settlement results at stage two, the grievance may be referred to arbitration under article 22.4. (my emphasis)
There is no question that article 22 under the heading "Grievance Procedure", in 18 sub-articles, deals with much more than the grievance procedure itself. The topics covered under article 22 include the two stages of the grievance procedure, the referral to arbitration and special provisions that apply to different types of grievances. In fact, article 22 also includes provisions which confer substantial rights. Article 22.10 contains the right to freedom from sexual harassment, and article 22.15 is the "sunset clause" providing for the removal of the disciplinary record within specified time limits. Article 22.16 also provides the rules that govern the mediation/arbitration procedure, with the intervention of a mediator/arbitrator.
Is it reasonable to conclude that the inclusion of all of the foregoing topics in a single article under the hearing "Grievance Procedure", makes all of those processes a part of the grievance procedure? I do not think so.
- Vice-Chair Dissanayake went on to find that "the arbitration process begins with the referral to arbitration upon the exhaustion of the grievance procedure without a settlement.
47At para, 20-22 Vice-Chair Briggs concluded as follows:
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”.
48The union relied on a subsequent decision dated August 2, 2011, by Vice-Chair Dissanayake relating to the same grievance in Re Johnston. The employer, relying on the earlier interim decision, moved for dismissal of the grievance on the grounds that it had been referred to arbitration after the mandatory time limits set out in the Collective Agreement had elapsed. The grievance in question was filed on June 8, 2007. The employer did not hold a stage 2 meeting. The grievance was referred to arbitration on July 14, 2009. The employer submitted that the Board’s decision in Re Goring was dispositive of the very issue. The union argued that the Re Goring decision in effect allows the employer to hold a stage 2 meeting and issue a decision “if it so wishes”. That ignores the mandatory language in article 20.3.2 and amends the article, something prohibited by article 22.14.6. It was submitted that the Re Goring decision was manifestly wrong. Counsel presented a number of reasons in urging the Board not to follow it.
49Employer counsel conceded that the holding of a stage 2 meeting was mandatory, but submitted that the effect of the Re Goring decision was “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.” (Para.11)
50At para.22, the Board wrote:
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 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.
51At para. 24 the Board concluded:
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.
52In Re Saguiliano (supra), decision dated March 6, 2014, it was common ground that there was no stage 2 meeting held. The grievance filed on September 21, 2011, was not referred to arbitration until April 2, 2012. At para 20, Vice-Chair Briggs wrote:
20The Employer noted that in Re Goring,( supra), the Board determined that a failure to hold a Stage 2 meeting does not suspend the time limits and that earlier decision must be applied in the case before this Board. The view set out in Re Goring (supra), was tested by the Union in the second decision in Re Johnston, (supra). Vice-Chair Dissanayake agreed with the reasoning set out in Re Goring ( supra). In that case the Union had put forward what it considered to be a new argument that a Stage 2 Meeting is mandatory and a dismissal of a grievance for failure to refer in time was, in effect, amending the Collective Agreement. Vice-Chair Dissanayake could have arrived at a different view than that set out in Re Goring, but instead found that the argument was not new, though perhaps articulated more clearly and there was no reason to depart. Vice-Chair Dissanayake clarified that the ruling was sound and rested on unquestionable legal foundation, according to the Employer.
53Unlike Re Michael, a decision rendered under article 22.16 with succinct reasons and no precedential force, the Re Goring, Re Johnston and Re Saguiliano decisions of the Board set out detailed reasons, and constitutes the Board’s interpretation of article 22.3, specifically the consequences of the employer’ failure to hold the FRS meeting. Those authorities conclude that when the employer does not hold a stage 2 meeting within the mandatory time limit, the clock begins to run for the time limit the grievor has to refer the grievance to arbitration. The Board made that decision not because it concluded, as the Board in Re Michael did, that the employer’s failure to hold the meeting is deemed to be a negative decision in writing within the meaning of article 22.3. There is no suggestion whatsoever of a deemed employer decision in Re Goring, Re Johnston, or Re Saguiliano. In those decisions, the Board held that if no stage 2 meeting is held within the mandatory time limit, the clock starts running for the time period the grievor has to refer the grievance to arbitration, because there can no longer be a stage 2 meeting that complies with article 22.3. It means that the stage 2 phase of the grievance process had ended with no settlement. Therefore, the grievor had to escalate the grievance to the next step, which is the commencement of the arbitration process, by a referral to arbitration within the mandatory time limit set out in article 22.6.1. In all 3 cases the Board upheld the employer’s position and dismissed the grievances because the grievor had failed to refer the grievance to arbitration within that time limit.
54Applying the reasoning in its case law to the facts here, as soon as the 15-day mandatory time limit elapsed on November 1st, 2022, and no FRS meeting had been held, the grievance procedure had ended with no settlement of the grievances, the clock began to run for the mandatory 15- day time limit the grievor had under article 22.6.1 to refer them to arbitration. By referring the grievances to the GSB on November 7th, the grievor met that mandatory time limit.
55The Board therefore concludes that there was no contravention of the grievance procedure provisions by the grievor or the union. The employer’s preliminary motion is accordingly dismissed. The Board remains seized over the instant grievances.
Dated at Toronto, Ontario this 7th day of June, 2023.