Award Number 08-011

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Award Date:	2008-09-04
Arbitrator:	Tacon, S. View awards by Tacon, S.
Municipality:	Toronto View awards from Toronto
Region:	Central View awards from Central
Classifications:	Remedies, Remedies, Associations
Grievor:	Association
Appearances:	M. Mitchell and others, for the Association M. Hines and others, for the Employer
Length of Award:	29 pp
Collective Agreements Cit.
Statutory Cit.

Summary

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Remedies   Damages - Uniform members - Policy grievance alleging Board violated collective agreement by entering into tuition reimbursement arrangement with certain members - Arbitrator found violation of collective agreement and rejected Board’s estoppel argument - Parties unable to agree on appropriate relief - Declaration issued - Association awarded $1,000 in compensation for breach of its recognition rights - Order issued on agreement prohibiting Board from discontinuing reimbursement of tuition costs to graduates of identified classes - Not appropriate to extend tuition reimbursement payments to other members - Supplementary award.

Remedies   Damages - Uniform members - Tuition reimbursement policy unilaterally adopted and unilaterally discontinued - Arbitrator finding breach of Association’s recognition rights - Lengthy, unexplained delay in filing grievance - Impact of such delay on fashioning remedy - Association not misunderstanding its rights - Association failed to protect its rights - Time-limit under collective agreement for filing grievances not determinative but should be given some weight in assessing damages - Tuition reimbursement program grounded in a legitimate business purpose - No subterfuge on Board’s part - Given Association’s inaction, no acceptable rationale for extension of the benefit to other classes - Association entitled to award of nominal damages - Supplementary award.

Associations   Recognition - Uniform members - Tuition reimbursement policy found to violate collective agreement wage, retention and recognition provisions - Association seeking damages for injury to its reputation as exclusive bargaining agent - No “massive undermining” of Association’s representation rights - Association’s delay in enforcing its rights directly responsible for invidious distinctions created by termination of the benefit - Delay also a significant factor in fashioning remedy - Extension of benefit to classes outside the program not appropriate - Association entitled to award of nominal damages for breach of its recognition rights - Supplementary award.

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Facts

The Association filed a policy grievance on December 22, 2004, alleging that the Board’s unilateral tuition reimbursement initiative violated the collective agreement. In an award dated August 28, 2007 [OPAC #07-019] the Arbitrator upheld that position, while rejecting the Association’s argument that the Board’s initiative was tantamount to bad faith bargaining. The Arbitrator rejected the Board’s argument that the Association was estopped from relying on its rights. The issue of remedy was remitted to the parties, but they failed to resolve the matter, and the hearing was reconvened to address that issue. The tuition reimbursement program was adopted by the Board in May of 2002, as a means of retaining qualified officers. The program was adopted during a period when the parties were renegotiating their collective agreement. Under the policy cadets would be reimbursed 40% of their Ontario Police College tuition costs after three years of service, with the balance to be reimbursed after completing five years of service with the force. Effective April 2004 the Board discontinued the program. The Association’s grievance was filed approximately nine months after that, over two and one-half years after the program was adopted. The Association sought various remedies, in addition to the declaration already issued: 1) tuition reimbursement for other OPC classes (i.e. those graduating under the collective agreement that was still in effect when the policy was introduced); 2) alternatively, some other flat amount of damages to other OPC classes; 3) damages of $100,000 payable to the Association for breach of the recognition clause; 4) interest on the above amounts; 5) an order prohibiting the Board from discontinuing tuition reimbursement payments; 6) a cease and desist order.

Argument

The Association argued that it lost an opportunity to bargain the tuition reimbursement program. While the Association did not seek reimbursement from members who received tuition payments, it contended that the Board’s policy placed it in the invidious position of having to seek cessation of a financial benefit. The remedy should be extended to cover the 1998-2001 collective agreement, which was still in force when the policy was adopted; alternatively, the remedy should cover the duration of the collective agreement, to December 31, 2004. The Association asserted that it was entitled to damages for the “massive undermining” of its representation rights and the amount of $100,000 was reasonable. Counsel argued that the delay in filing a grievance was immaterial to the issue of remedy; alternatively, the Board was not prejudiced by the delay and minimal discounting of damages owing was appropriate. The Board denied that there was any lost opportunity to bargain. Rather, the Association had noted the issue in bargaining but withdrew the issue and informed the Board that a grievance would be filed. Counsel argued that the delay in this case was designed to maximize a claim for damages, and the Association did not approach the grievance with “clean hands”. To expand the class of individuals entitled to reimbursement would exacerbate, not remedy, the breach; it was also punitive. With respect to the Association’s claim for damages, counsel asserted that there was no proof of actual loss. Counsel asserted that the delay was significant in this case and unexplained. No relief should be awarded beyond a declaration.

Award #

The Association’s extensive delay in acting on its rights was a compelling factor in the assessment of damages in this case. The Association could have dealt with the issue of tuition reimbursement in bargaining but chose not to. Had it done so, the associated costs would have been included in the Association’s bargaining position. The Board’s characterization of the circumstances was thus persuasive: this was a bargaining opportunity foregone, not lost. Many of the cases involving remedy for breach of the recognition clause were distinguishable on that basis and on other grounds as well. For example, in this case the program was adopted without subterfuge and for a legitimate business purpose: the retention of trained officers. Since the collective agreement did not deal explicitly with tuition reimbursement, the Board had viewed the adoption of the policy as an exercise of its management rights. Ultimately the dispute distilled to a disagreement about the scope of the management rights clause. While the Association’s position in that disagreement prevailed, the Board was not motivated by anti-union animus, and there was no individual bargaining with employees. In addition, there was no “massive undermining” of the Association’s representation rights. The Association did not misconceive its rights; it simply failed to protect them for two and one-half years. Thus only nominal damages were appropriate: $1,000. By delaying until the eve of the expiry of the collective agreement, the Association maximized the number of officers who became entitled to the tuition benefit. Although the termination of the benefit might create some invidious distinctions amongst members of the bargaining unit, those distinctions were the direct result of the Association’s inaction. There was no acceptable rationale for further extension of the benefit to other officers. The parties agreed that an order should issue prohibiting the Board from discontinuing tuition reimbursement payments to individuals in the classes of 02-01 to 04-02 inclusive.

Authorities Cited

· Canada Safeway [1999] A.G.A.A. No. 88 (Taylor) · Canada Safeway v. U.F.C.W., Loc. 312A, 373A and 401 [2001] ABQB 120 · Re West Park Health Care Centre (2005), 138 L.A.C. (4th) 213 (Charney) · Re Porti Construction Inc. (2006), 150 L.A.C. (4th) 155 (McKee) · Re Gateway Casinos G.P. Inc. (2007), 159 L.A.C. (4th) 227 (McFetridge) · Motor Coach Industries Ltd. [2007] M.G.A.D. No. 19 (Peltz) · Re Inco Ltd. (2006), 153 L.A.C. (4th) 183 (Rayner) · H.J. Heinz Co. of Canada Ltd. [2004] O.L.A.A. No. 609 (Brandt) · Re ABB Asea Brown Boveri (1991), 22 L.A.C. (4th) 314 (Craven) · Re Hawkesbury General Hospital (1992), 24 L.A.C. (4th) 329 (Roach) · Re Alberta Government Telephones (1990), 11 L.A.C. (4th) 113 (Ponak) · Re Eastern Ontario Health Unit (1993), 39 L.A.C. (4th) 120 (Eberlee) · Toronto Hospital [1998] O.L.A.A. No. 729 (Stanley) · Re Famous Players Ltd. (1987), 31 L.A.C. (3d) 97 (Bird) · Re Associated Toronto Taxi-Cab Co-operative Ltd. (1996), 44 C.L.A.S. 333 (Davie) · Re Ontario (Ministry of Community, Family and Children’s Services) (2004), 131 L.A.C. (4th) 63 (Leighton) · Re Miracle Food Mart Canada (1994), 45 L.A.C. (4th) 209 (Dumoulin) · Re B.C. Hydro and Power Authority (2006), 150 L.A.C. (4th) 281 (Larson) · Re Falconbridge Ltd. (2002), 112 L.A.C. (4th) 243 · Re ADT Security Services Canada Inc. (2007), 163 L.A.C. (4th) 363 (Surdykowski) · Re General Electric Co. Ltd. (1950), 2 L.A.C. 587 (Laskin) · Re Consolidated Bathurst Packaging Ltd. (1980), 28 L.A.C. (2d) 230 (Brunner) · U.F.C.W. Loc. 280(P) v. Pride of Alberta (1998), 159 D.L.R. (4th) 35 (Alta. C.A.) · Re Inland Aggregates Ltd. (2002), 106 L.A.C. (4th) 62 (Sims) ** This award has been selected for publication in Labour Arbitration Cases.

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