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HomeMy WebLinkAboutNadalin 13-01-10IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 109 -AND- FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY Grievance of Elaine Nadalin (#2010-0109-0022) Before: Mary Ellen Cummings, Chair Pamela Munt-Madill, Union Nominee Richard J. O’Connor, Employer Nominee Appearances: Mihad Fahmy, Margaret Rae, William Sorrell and Elaine Nadalin for the union Robert J. Atkinson, Dianne Davidson and Don McIntyre for the employer Hearing held on September 7, 2012 Award released on January 10, 2013 -1- AWARD OF THE MAJORITY 1. The Ontario Public Service Employees’ Union has filed a grievance on behalf of Elaine Nadalin, alleging that Fanshawe College violated the collective agreement in the way that it handled her layoff/displacement from employment. 2. The College has raised two preliminary issues that both parties agreed should be determined at the outset. The College alleges that an individual cannot grieve about the processes of the Employment Stability Committee, as they are laid out in Article 15 of the collective agreement. The College also asserts that because Ms. Nadalin was not the person whose job was eliminated, but was instead someone who was displaced, she is not entitled to the benefits of the work of the Employment Stability Committee, in any event. Background Facts 3. The parties were able to agree on and set out the background facts so that we would consider the preliminary issues. The College eliminated two positions at its Job Connect program in Woodstock. When the College decided to eliminate the 2 positions, it gave notice to the union local pursuant to Article 15 of the collective agreement. The union and the employer engaged in the consultation and recommendation process outlined in Article 15.2. After that, the College gave notice of layoff to the 2 employees whose jobs were to be eliminated. The employees whose positions were eliminated exercised their seniority rights to bump into other positions. There is disagreement between the union and the College about whether Ms. Nadalin was bumped by the person whose position was eliminated or whether she was the “Second displacement”. That disagreement is not relevant. The parties are agreed that Ms. Nadalin did not occupy a position that was eliminated. Instead, Ms. Nadalin’s employment was affected because someone elected to displace her. 4. Ms. Nadalin, in turn, exercised rights under the collective agreement. She was placed in a vacant position, but in a lower pay band. Since these matters arose, Ms. Nadalin has retired from the College. Mootness 5. The College argued that because Ms. Nadalin has retired from the College, the issue is moot. The union is seeking as a remedy that the process of dealing with Ms. Nadalin’s displacement be redone under the collective agreement. That remedy no longer makes any sense and so there is no labour relations purpose to proceeding. 6. The union counters that it is also seeking a monetary remedy; that Ms. Nadalin be paid at the higher payband of the position from which she was displaced on a retroactive basis. In addition, the union argued that both parties would gain a benefit from having this issue determined. 7. We are not prepared to dismiss this grievance for mootness. We agree with and adopt the analysis of Arbitrator Slotnick in York University and CUPE Local 3903 (Davidson grievance), [2010] O.L.A.A. No 505 at paragraph 19; -2- I agree that it is best for arbitrators to exercise caution in deciding not to proceed with the hearing where the factual situation has changed and the grievance may be moot. It is also worth remembering Borowski's [Borowski v. A-G Canada (1989) 57 D.L.R (4th) 231] two-step analysis, giving discretion to proceed even if the concrete dispute has disappeared. Generally in labour relations, in my view, it must be left to the parties themselves to determine when there is a dispute. Aside from circumstances with the grievance has, in fact, been settled, one party cannot simply declare that the dispute is over, nor should the arbitrator decline to hear the case where there are still potential remedies that have not been granted, or where there may be differing interpretations of the collective agreement that have wider application than to the individual grievor’s situation. In many cases, the change in circumstances may cause the union to withdraw the grievance, but the decision to proceed is generally a decision for the union, not the arbitrator. Employer submissions about why the grievance cannot succeed 8. The College opened by noting that the union is not asserting that the College breached the collective agreement in the process it followed before the elimination of the two positions at Job Connect. The College also noted that typically grievances from displaced persons are made pursuant to Article 15.4.3 Those grievances usually concern dissatisfaction with the position to which the College has assigned the employee. The union has confirmed that Ms. Nadalin’s complaint is not brought pursuant to Article 15.4.3. 9. The College understands that Ms Nadalin and the union are complaining that when Ms Nadalin was displaced, the parties ought to have convened the Employment Stability Committee, pursuant to Article 15.3 of the agreement. The employer makes two related submissions. First, it argued that the Employment Stability Committee process arises when the employer is contemplating eliminating positions. The Employment Stability Committee process is not implemented each time employees are affected by the bumping procedure as a consequence of the elimination of the position. 10. Moreover, the employer argued it is only the union, and not an individual, who can complain about a breach of the processes envisioned for the Employment Stability Committee. In order to understand the parties’ submissions, we have set out the relevant collective agreement provisions below: 15. LAYOFF/RECALL PROCESS 15.1 General An employee who has completed the probationary period shall not be laid off or subject to the layoff process, for any reason, unless and until the procedures contained in Article 15 have been applied in sequence. 15.2 Notice to Local Union When the College contemplates any action that may result in an employee who has completed the probationary period being subject to the layoff process, the College shall give fourteen (14) calendar days written notification to the Local Union President prior to written notice being provided to the employees affected. At the same time, the College shall provide the Local Union with all data used by the College in formulating its tentative determination to undertake the action contemplated. 15.3 Committee 15.3.1 Meetings -3- In addition to committee meetings under Article 14.6.1, the Employment Stability Committee (ESC) shall meet within five (5) calendar days of the giving of such notice, unless the parties mutually agree to extend these time limits. 15.3.2 Confidentiality The Local Union, the College and the ESC shall maintain confidentiality with respect to any information received and the deliberations of the ESC until mutually agreed between the College and the Local Union. Nothing herein shall prevent the parties from obtaining advice, on a confidential basis, as required. 15.3.3 Recommendations It shall be the duty of the ESC to consider the matter and to make recommendations to the President of the College with respect to any or all of the alternatives listed below which might be resorted to in order to prevent or minimize the dislocation of employees: 1. Potential creation of vacancies that might be filled by affected employees; 2. Conversion of part-time positions and/or displacement of non-bargaining unit employees; 3. The utilization of other means, such as normal retirements, voluntary leaves or transfers in order to prevent or minimize the effects of the action contemplated; 4. The improvement of employment potential for employees affected by the provision of training or retraining programs and job counselling; 5. Investigation of potential alternative job opportunities that might exist for employees affected both within and outside the College, such as comparable employment opportunities; 6. The temporary assignment of redundant and displaced employees to positions held by other employees who are on various leaves of absences. It will be the duty of the ESC to make recommendations to the President of the College within fourteen (14) calendar days of notice provided under Article 15.2. Where the ESC is unable to agree on any recommendations, the members appointed by the Union and the members appointed by the College may make separate recommendations. Where separate recommendations are to be delivered they will be exchanged between the appointees prior to delivery. 15.3.4 Confidentiality of Recommendations Where recommendations, either joint or separate, are delivered to the President of the College, they shall be maintained as confidential until the fourteen (14) calendar day period mentioned in Article 15.2 has expired, or such other period as may be agreed by the Local Union and the College. 15.3.5 Notice to Employees 15.3.5.1 Written Notice of Layoff If, after consideration by the President of the recommendations, the College determines that layoffs are still necessary, employees may receive written notice of layoff after the fourteen (14) calendar day period mentioned in Article 15.2, or such other period as may be agreed by the Local Union and the College. 15.3.5.2 Notice Period No employee shall be laid off without receiving ninety (90) calendar days written notification from the College except in circumstances beyond the reasonable control of the College. 15.3.6 Continued Discussions -4- Where the ESC wishes to make further recommendations, the ESC may continue to meet following notice being provided to employees pursuant to Article 15.3.5.1, and may make further recommendations to the President to attempt to minimize the dislocation of employees. 15.4 Layoff Procedure When a College decides that circumstances require a reduction in personnel in any position the following provisions shall apply: 15.4.1 Probationary Employees Probationary employees performing the work in question shall be released. The College shall notify the Union of probationary employees released in these circumstances. 15.4.2 Post Probationary Employees Where the qualifications of employees in the affected position who have completed their probationary period are relatively equal as to that position, their layoff shall be on the basis of seniority. 15.4.3 Bumping Procedure The employee so identified shall be assigned by the College to the first position determined in accordance with the following sequence: - to a vacant position in the same payband provided he/she can satisfactorily perform the core duties and responsibilities of the job. If there is no such position then; - to the position held by the most junior employee within his/her same payband provided he/she can satisfactorily perform the core duties and responsibilities of the job and he/she has greater seniority. If there is no such position then; - to a vacant position in the payband with a maximum rate one lower than the employee's own payband provided he/she can satisfactorily perform the core duties and responsibilities of the job. If there is no such position then; - to the position held by the most junior employee in the payband with a maximum rate one lower than the employee's own payband provided he/she can satisfactorily perform the core duties and responsibilities of the job and he/she has greater seniority; - the provisions of the last two sections shall be repeated until all paybands have been reviewed in descending order of maximum rate and either a vacant position or a position held by a more junior employee is identified and the employee affected can satisfactorily perform the core duties and responsibilities of the job. If no such position is identified the employee shall be laid off. 15.4.4 Layoff or Reassignment 15.4.4.1 Notice The employee shall be provided written notice of layoff or reassignment. Should the employee receive notice of reassignment, the employee may elect in writing, to be laid off in lieu of such reassignment, provided such election is made within five (5) working days of notice being provided to the employee. In such case the date the employee received the notice of reassignment shall be deemed to be the date of notice of layoff. The College shall provide a further letter to the employee confirming layoff. 15.4.4.2 Position Outside Forty (40) Kilometres … 15.4.5 Displacement 15.4.5.1 Second Displacement -5- The College shall follow the above procedure for an employee displaced by the affected employee above. 15.4.5.2 Third Displacement The College shall follow the above procedure for an employee displaced under "Second Displacement". 15.4.5.3 Final Displacement An employee displaced as a result of the "Third Displacement" shall be laid off by the College. 11. The College argued that the parties have agreed that when the employer is contemplating the elimination of positions, it makes sense for the parties to consider alternatives. Consequently, when the College “contemplates any action that may result in an employee who has completed the probationary period being subject to the layoff process” (Art. 15.2), the College is obliged to give notice to the local union, and the Employment Stability Committee shall meet to engage in confidential discussions (Art. 15.3.2). Article 15.3.3 sets out a range of alternatives that the Employment Stability Committee might consider to prevent or minimise the dislocation of employees. The Committee then makes confidential recommendations to the President of the College, (Art. 15.3.4). It is only after the President has considered the recommendations and the College has determined that layoffs are necessary, “employees may receive written notice of layoff…" (Art. 15.3.5.1). 12. The College argued that following the giving of notice, Article 15.4 sets out the layoff procedure and, most important for this case, Article 15.4.5 deals with displacements. The College argued that Ms Nadalin, whether she is the “Second Displacement" or “Third Displacement" is subject to the layoff procedure that begins in Article 15.4.3, the bumping procedure. The employer argued that the Employment Stability Committee process is not available to Ms Nadalin because the position of the displaced employee has not been eliminated. The whole purpose of the Employment Stability Committee process is for the parties to look at alternatives when a position is to be eliminated. When a position is to be eliminated, the employer must provide data used by the college in formulating its tentative determination to undertake a job elimination. It makes no sense for the process of the Employment Stability Committee to be engaged when no position is being eliminated. 13. The employer submitted that it is necessary to look at all aspects of the lay-off and recall process to understand what provisions apply in particular circumstances. To understand the rights available to Ms Nadalin, it is necessary to look at the “displacement" section of Article 15.4.5. It requires the college to follow “the above procedure for an employee displaced…." The procedure it refers to is the bumping procedure set out in Article 15.4.3, and not the whole layoff procedure. The College noted that the second and third displaced employees have access to the bumping procedure. However, in accordance with Article 15.4.5.3 “an employee displaced as a result of the third displacement shall be laid off by the college". That provision is important, counsel argued, because it makes clear that the bumping procedure comes to an end after two displacements. To accept the union's argument would mean the process would be never ending, because each displaced employee would be reviewed by the Employment Stability Committee. Not only would such a result be inefficient and -6- impractical, but would be at odds with the collective agreement’s determination that the employee displaced as a result of the third displacement shall be laid off. 14. In any event, the employer argued that it is not available for an individual employee to grieve the process of the Employment Stability Committee. As Articles 15.1 and 15.2 make clear, the process contemplated is one between the union and the employer. If, for example, the employer failed to participate in the Employment Stability Committee, or else failed to meet timelines for the consultation, then the union could grieve. But that is not the situation before us. The union’s response 15. Counsel for the union countered that it was important to understand that the Employment Stability Committee has two sets of roles. Pursuant to Article 14.7 of the collective agreement, the Employment Stability Committee meets on an ongoing basis to develop strategies to achieve employment stability by planning, retraining, early retirement, job sharing and other means. Pursuant to Article 15.3 of the collective agreement, the Employment Stability Committee acts more in a responsive function once the “…College contemplates any action that may result in an employee who has completed the probationary period being subject to the layoff process". It is mandatory for the Committee to consider and make recommendations and not simply to rubber stamp the decisions of the College. The parties intend for the Committee to work with confidential information and to make confidential recommendations before an employee gets notice of lay-off. 16. The union argued that Article 15.1 makes it abundantly clear that the grievor is entitled to the processes of the Employment Stability Committee. Article 15.1 is broadly worded and says that the Article applies to any employee who is “subject to the layoff process". Article 15.1 does not say that it applies only to employees whose jobs are being eliminated. Moreover, Article 15.4.3 makes clear that a displaced person is part of the layoff process and the whole procedure falls under Article 15. If the parties had wanted to treat employees whose positions are eliminated and employees who are displaced differently they could have set that out in the collective agreement. Because they did not do so, we must conclude that all the provisions of Article 15 apply to displaced persons in the same way as they do to those whose positions are being eliminated. 17. The union argued that its role is central to the Employment Stability Committee. Union members are there to ensure that there is a minimal impact on employees when the employer is contemplating eliminating positions. Furthermore, the union submitted that its obligation to protect workers is no different for the displaced employee than it is for the eliminated employee with the result that the full protection of the layoff provisions is appropriate for both groups. 18. The union argued that in looking at Article 15.3.3 and the duties of the Employment Stability Committee to make recommendations, the broad goal is to “prevent or minimise the dislocation of employees". The collective agreement does not say the Employment Stability Committee is limited to looking only at the situation of employees whose positions are being eliminated. -7- 19. The union also noted that Ms Nadalin was given notice of lay off and the College has agreed that Article 15.3.5.2, entitled Notice Period, would apply. The union argued that the employer cannot pick and choose what parts of Article 15 apply to displaced employees. In the union's view, all of the provisions of Article 15 apply equally to those employees whose jobs are eliminated and those who are displaced. Consequently, all are entitled to have their circumstances considered by the Employment Stability Committee. 20. The union argued that it would be inappropriate to be limited to filing only a union grievance where it alleges a breach at the Employment Stability Committee process. First, in a policy grievance it would not be able to claim a remedy for an individual. In this case, it seeks payment for Ms Nadalin and so it is an appropriate individual grievance. Second, the union argues that Article 15, including the processes of the Employment Stability Committee, are processes for individuals not just for the union and employer. Analysis and decision 21. The parties agree that this is a case of first impression. While they were able to provide the panel with cases dealing with aspects of the layoff and recall process, neither party is aware of cases that have considered whether the situation of a displaced employee should be reviewed by the Employment Stability Committee. The parties are also not aware of any cases that discuss whether an individual can complain about an alleged breach of the collective agreement where the Employment Stability Committee does not address the situation of the displaced employee. 22. Article 15 fills up 10 pages of the parties’ collective agreement. We have only reproduced the beginning of the Article up to the end of the Displacement section. Article 15 also covers waiver of rights, severance pay, recall, retraining, contracting out, and the circumstances in which seniority is lost. It is evident that the parties intend to cover a range of issues that arise when the employer considers eliminating or altering bargaining unit positions. Looking only at the aspects of Article 15 that we have quoted above, we note that probationary employees have very limited rights. Article 15.4 says that when the college decides that personnel will be reduced, “probationary employees performing the work in question shall be released." It appears that probationary employees have no access to the bumping procedure but are still governed by Article 15. 23. Probationary employees are at one end of the spectrum in terms of the options available when the employer eliminates work. In our view, employees whose positions may be eliminated fall at the other end of the spectrum. In accordance with Article 15.2, “when the college contemplates any action that may result in an employee who has completed the probationary period being subject to layoff process, the college shall give 14 calendar days written notification to the local union President…." That notice starts the time for the meeting of the Employment Stability Committee which is required to look at enumerated alternatives “which might be resorted to in order to prevent or minimise the dislocation of employees" (Art 15.3.4). 24. We agree with the submissions of the union that the parties have not specifically said that the Employment Stability Committee meets only to look at situations where the employer proposes to eliminate jobs. The parties have chosen broader language. But it is still necessary to consider the context. Because employees whose jobs are eliminated will -8- generally have access to the bumping procedure under the collective agreement, it would be exceedingly narrow to have the Employment Stability Committee only look at the situation of employees who are certain to be subject to layoff. For that reason, the parties have chosen the broader language in Article 15.02. It is only after the Employment Stability Committee has considered the situation, made its recommendations, and the college President has considered the recommendations, that any position would be eliminated. And it would only be after the bumping procedure was completed by the employee whose position was eliminated, as well as by those who were displaced, that it would be known whether anyone would be laid off and who that would be. 25. In our view, the whole of the layoff and recall process makes sense if the Employment Stability Committee considers the college’s initial proposed action to eliminate positions or otherwise take any action that may result in an employee being laid off. It does not make practical sense to require the Employment Stability Committee to specifically consider the situation of displaced employees at the time they are displaced. First, as counsel for the employer argued, the position of an employee who is being displaced is not being eliminated and it is not being changed. There really is nothing for the Employment Stability Committee to consider because the college it is not proposing to take any action with respect to that position. It is the incumbent in the position who is being displaced by operation of the collective agreement. Second, it would be practically difficult for the Employment Stability Committee to intervene in the very detailed bumping procedure set out in Article 15.4.3. The collective agreement sets out a sequence that must be applied by the college in looking to place an employee whose position is eliminated. The same sequence is to be applied to the Second and Third displacement. As set out above, Article 15.4.5.3 provides that the employee displaced as a result of the Third displacement shall be laid off by the college. The Employment Stability Committee can do nothing for the last displaced employee. 26. The Employment Stability Committee has an important role to play at the very beginning when the employer is contemplating an action that may result in post- probationary employees being subject to the layoff process. The Employment Stability Committee has an opportunity to hear about the college’s proposed plans, to receive the information that the college relied on and then to look at alternatives to the employer's proposed employment changes. The Employment Stability Committee has the chance to make suggestions that will alter the college’s decision to affect jobs. 27. However, once the college has made the decision to eliminate positions, the role of the Employment Stability Committee is essentially over (subject to the optional Continued Discussions in Art. 15.3.6). Article 15.4.3 and onward, creates a detailed, cascading process that allows employees in eliminated positions to exercise their seniority rights and bump into positions there are identified by the college. In our view, once the college has made a decision to eliminate positions there is no practical role for the Employment Stability Committee. 28. Although the union argued that we should resist the temptation to interpret the collective agreement as giving rights to employees whose positions were eliminated that are different from those who were displaced from their positions, in our view they have the same rights, once the college has made a final decision to eliminate positions. Before that, the Employment Stability Committee is necessarily focused on the college’s -9- proposed decision making that will have an impact, direct and indirect, on employees. The Employment Stability Committee has an opportunity to change the employer's mind before the employees are affected. But once the employer has made the decision to eliminate the position, the impact on both groups of employees is the same. It is just that the sequencing of the bumping procedure is different, with those in the eliminated position bumping first. 29. For the reasons set out above, we conclude that the collective agreement does not require the Employment Stability Committee to convene and consider the situation of an employee who has been displaced from his or her position because of bumping. Having reached that conclusion, it is not necessary to consider the employer’s other preliminary argument about whether this sort of grievance can be brought as an individual grievance. Disposition 30. For the reasons set out above, the grievance is dismissed because it cannot succeed. Dated at Georgetown, Ontario this 10th day of January 2013. Mary Ellen Cummings Richard J. O’Connor I agree/dissent Pamela Munt-Madill I agree/dissent (see attached dissent) Dissent of Pamela Munt-Madill 1. With all due respect, I disagree with the decision of the Majority in this matter. The Majority agrees with the Union that the language in Article 15 of the Collective Agreement is extremely broad including “ any employee subject to the lay-off process”. Furthermore, the Majority’s decision does not suggest that the Grievor is not someone subject to the lay-off process. Therefore, the application of basic contract interpretation principles to this case would lead to having the provisions of Article 15 applied to the Grievor. To deviate from such an unambiguous meaning, an extremely strong and compelling reason would be needed. This is particularly true in this case where the Grievor was so adversely affected by her dislocation. The Grievor was a long-term College employee, approaching retirement age. She was bumped into a job in a lower pay band at a location a significant distance from her home and requiring a long commute. In addition to an immediate loss of income, her pension benefits were adversely effected by this dislocation. The Grievor is clearly an employee subject to the lay-off process and someone who should be afforded the full rights guaranteed by the Collective Agreement. 2. The Majority’s reason for deviating from the clear and plain meaning of the language of the Agreement is contained in paragraph 25 of their decision. They suggest that the consideration of the Committee is only practical at the beginning of the process. Even if this is true, this is not a sufficient legal reason to deviate from the plain meaning of the language of the Agreement. However, in this case the assertion is not correct. In fact, it is extremely difficult for the rights of dislocated employees to be accurately considered at the beginning of the lay-off process because, at that point, it is not clear who the dislocated employees will be. Only after the employees first impacted by the lay-off make their elections can the effects down the line be determined. 3. If one looks at the specific position of this Grievor it is clear how the rights guaranteed in Article 15 should have been applied to her and when. They should have been applied at the time when it was known that she would lose her position and be bumped into a position in a lower pay band with a significant commute and loss of pension benefits. To suggest that the Committee would have looked at these specifics for this Grievor at the time of the initial job elimination is not logical or practical. And, to deprive this Grievor of the opportunity to have these things consider at the point in time when they would have been of benefit is not only contrary to the language of the Agreement but harsh and unfair. 4. For these reasons I would allow the Grievance and make the Grievor whole for all of the losses suffered as a result of the College’s failure to comply with Article 15.