Ontario Public Service Employees Union v. The Board of Governors of The Fanshawe College of Applied Arts and Technology
[1980] OLRB Rep. October 1392
0139-80-U Ontario Public Service Employees Union, Complainant, v. The Board of Governors of The Fanshawe College of Applied Arts and Technology, J. A. Colvin and W. Collard, Respondents.
Panel and Appearances
BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members C. G. Bourne and B. L. Armstrong.
APPEARANCES: G. Richards and Dr. B. P. Sinha for the complainant; Corinne Murray and Peter Myers for the respondents.
DECISION OF THE BOARD; October 8, 1980
Decision
1This is a complaint under section 78 of The Colleges Collective Bargaining Act. The complaint states as follows:
"On or about March 28, 1979 the grievor was dealt with by J. A. Colvin, President of Fanshawe College and W. Collard, Chairman of the Mathematics and Science Division of the respondent contrary to the provisions of Section 76, of the Colleges' Collective Bargaining Act in that they did on their own behalf or on behalf of the respondent terminate the employment of Dr. Sinha in response to Dr. Sinha initiating action under the Grievance Procedure of the Collective Agreement. Dr. Sinha was objecting to a memo of March 8, 1979 from W. Collard."
2Section 76, and in particular section 76(2)(a) reads as follows:
"76.-(2) The Council, an employer or any person acting on behalf of an employer shall not,
(a) refuse to employ or to continue to employ or discriminate against a person with regard to employment or any term or condition of employment because the person is exercising any right under this Act or is or is not a member of an employee organization;..."
3The respondents took the position that even if the complainant were to prove that his action in filing a grievance contributed to his termination, such action did not constitute the exercise of a right under the Act, and on that basis alone the complaint must fail. The parties agreed to ask the Board for an interim ruling on this point.
4The respondents point to section 47 of the Act as the only provision coming close to covering the present situation. That section, like section 37 of The Labour Relations Act, requires that a collective agreement provide for the final and binding settlement by arbitration of all differences arising under a collective agreement, and in section 47(2) includes a "deemed provision should the collective agreement fail to do so. The present collective agreement does not fail to do so, and subsection (2) has no application. But, in any event, the present case does not involve the submission of a matter to arbitration. It simply involves the filing of a grievance pursuant to a grievance procedure, which is not a right made mandatory by the provisions of section 47.
5Section 66 of the Act, however, provides:
"Every person is free to join an employee organization of his own choice and to participate in its lawful activities."
Counsel for the respondent argued that the meaning of this section is limited in its application to matters which may be described as being the "property" of the union, on a more or less unilateral basis. The Board sees no justification in the language of the section for adopting this limited approach, and notes that the respondent's interpretation would appear to exclude the act of collective bargaining itself. Nor would it seem to make sense to impute to the Legislature the clear intent that persons be protected under the Act when submitting a matter to arbitration, but not when filing the initial grievance.
6In Article 9 of the collective agreement, the parties have fashioned a grievance procedure which includes the raising of "complaints" as a preliminary step to the filing of a grievance. That Article provides as follows:
"Article 9
GRIEVANCE PROCEDURE
9.01 Sections 9.01 to 9.05 inclusive apply to an employee covered by this Agreement who has been employed continuously for at least the proceeding six months.
9.02 Complaints
It is the mutual desire of the parties hereto that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, he shall discuss it with his immediate Supervisor within twenty (20) days of the occurrence or origination of the circumstances giving rise to the complaint in order to given his immediate Supervisor an opportunity of adjusting his complaint. The discussion shall be between the employee and his immediate Supervisor unless mutually agreed to have other persons in attendance. The immediate Supervisor's response to the complaint shall be given within seven (7) days after discussion with the employee.
9.03 Grievances
Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under Section 9.12(d) ) in the following manner and sequence provided it is presented within seven (7) days of the immediate Supervisor's reply to the complaint. It is the intention of the parties that reasons supporting the grievance and for its referral to a succeeding Step be set out in the grievance and on the document referring it to the next Step. Similarly, the College written decisions at each step shall contain reasons supporting the decision.
Step No. 1
An employee shall present a signed grievance in writing to his immediate Supervisor setting forth the nature of the grievance, the surrounding circumstances and the remedy sought. ..."
In the Board's view, the right to ensure compliance with a collective agreement under procedures such as those set out above is a fundamental "lawful activity" of a trade union, within the meaning of section 66, and is no less so where aspects of that right are delegated to the aggrieved employee himself. The Board rules, therefore, that the allegations of the complainant, if proven, would constitute a violation of section 76(2)(a) of The Colleges Collective Bargaining Act.
7The matter is directed to the Registrar for continuation.