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HomeMy WebLinkAboutUnion 14-01-291 IN THE MATTER OF AN ARBITRATION ~ BETWEEN ~ CANADORE COLLEGE (“EMPLOYER or COLLEGE”) ~ AND ~ ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 657 (“UNION”) AND IN THE MATTER OF TWO UNION GRIEVANCES Board of Arbitration Deborah Leighton, Chair Marc Piquette, College Nominee Pierre Martin, Union Nominee APPEARANCES For the Employer Wallace Kenney, Counsel Susan Pratt, Linda Turcotte For the Union (Local 657) Michael Fisher, Counsel Tom Hanrahan Steward Randy Hall, President John Patterson, Vice-president For the Union (Local 658) Ed Holmes, Counsel Glenn Harrison , President Trina St Jacques and Linda Lamothe, Student Advisors 2 AWARD There are two union grievances before us. On September 17, 2012, Local 657 of the union grieved “that the college is in violation of Article 1, of the CAAT-Academic Collective Agreement.” The union alleges that the college improperly assigned the work of certain student counsellors to positions in the support unit and that these positions should be within the academic bargaining unit. By way of remedy, “the union requests the placement of these positions within the Academic Bargaining unit” and to be made whole. On September 25, 2012, the union filed a second grievance as an amendment or in addition to the first complaint. “Further to Grievance of September 17, 2012”—the union grieves that the employer has breached articles 1, 6 and 27, “and more specifically the closure and lay-off of student counselling members was inappropriate, contrary to the collective agreement.” This grievance claims full redress as a remedy. At the outset of the hearing into this matter, the employer made a motion to the board that we did not have the jurisdiction to hear the case because under Article 32.09 if an individual or group could grieve, the union cannot, except in certain circumstances. The academic staff bargaining unit took the position that the grievances were properly before us, because essentially the grievances are about the integrity of the bargaining unit. The staff bargaining unit took no position on the preliminary motion and made no submissions. The events leading to the grievances are as follows. On April 25, 2012, the college informed the union that it was going to lay-off four out of six counsellors in student services. The college had decided to implement a new model of counselling service, using advisors (‘Track employees’) to 3 direct students to resources in the community. Of the four counsellors, one retired and the other three are faculty. The college retained two counsellors to work in the First Peoples Centre. None of the counsellors grieved the lay-offs. The college contracted with an independent supplier to provide the counselling service. Essentially the work by the advisors in the staff unit is to triage students, sending them on to the appropriate staff of the supplier. The union understood the college was going to eliminate all student counselling completely. Then in August, the union learned that the college had assigned work to Track employees in the staff bargaining unit to work in a unit called Student Success Service. In the union’s view, the Track employees were doing the work of the counsellors who had been laid-off in the academic unit, and therefore the two grievances were filed. Counsel for the college argued in support of his motion to dismiss the grievance for lack of jurisdiction that Article 32.09 of the collective agreement provides that if an individual or a group is entitled to grieve then the union cannot except under special circumstances. The Union, or Union Local, shall have the right to file a grievance based on a difference directly with the college arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be bypassed except where the union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this agreement and that adversely affects the rights of employees. Counsel argued that the counsellors who were laid-off could have grieved. The lay-offs affected real rights and interests in the work of the individuals. They could also have grieved that their 4 work was being done by others. It is not a question of whether the union has a legitimate interest in the grievances. The union clearly has an interest in protecting the bargaining unit integrity. However, in counsel’s submission, the issue is not whether the union has an interest; it is whether individuals have a right to grieve. Grievances about lay-off and recall are essentially individual complaints. Once it is established that an individual could grieve the matter, the union must show that the lay-off and reassignment are an unreasonable standard that is patently in violation of the collective agreement and which adversely affects the rights of other employees in the bargaining unit in order for the board to have jurisdiction to hear the matter. The union made no argument that it has satisfied these exceptions. Therefore, in counsel’s submission, the board is without jurisdiction to hear the matter and the grievance should be dismissed. In his submission counsel for the employer relied on the following cases in support of his argument that the grievance must be dismissed: Algonquin College and OPSEU, 1983 (Weatherill); Board of Governors of Algonquin College of Applied Arts and Technology and OPSEU, Ont. CA (1986): Durham College and OPSEU, Local 354, 2012 (Knopf); Loyalist College of Applied Arts and Technology and OPSEU, 2001 (O’Neil); St. Lawrence College and OPSEU, Local 417 2011 (Starkman); St. Lawrence College and OPSEU, Local 417 (Leighton); Fanshawe College and OPSEU, 2009 (H.D.Brown); Fanshawe College and OPSEU, 2007 (Knopf); George Brown College and OPSEU 1994 (Devlin); Cambrian College and OPSEU, 1989 (Swan). 5 Counsel for the union argued that essentially this is a case about the integrity of the bargaining unit. The college removed work from the academic bargaining unit and transferred it to some in the staff bargaining unit and some to a third party. Thus, the question here in counsel’s submission is whether work transferred to the staff unit falls within the recognition clause of the collective agreement. The union is not challenging the lay-off. This is essentially a union matter and not an individual matter. He argued further that employees in one unit could not grieve in another. Counsel for the union submitted that the union could file a grievance on an issue of difference directly with the college. No individual could have grieved the bargaining unit integrity issue. Since no individual could have grieved in this case, there has been no attempt to bypass an individual grievance. In summary the issue here is whether or not the work transferred to the support staff unit is CAAT Academic work. If bargaining unit work is available, the college must assign it to the academic bargaining unit members. Counsel for the union argued that since it was a proper union grievance, the analysis under Article 32.09 ends at this point. He made no argument to support the three exceptions to the prohibition against filing a union grievance if an individual could grieve the matter. Counsel for the union relied on the following cases in support of his argument that the motion should be dismissed: Re Corp. of Borough of Scarborough and Canadian Union of Public Employees Local 368, (1975), 10 L.A.C (2d) 188 (Adams); Re Grand Prairie General and Auxiliary Nursing Home District No. 14 and United Nurses of Alberta, Loc.37, (1996), 57 L.A.C 6 (4th) 173(Christian); Cambrian College and OPSEU, 1997 (Kruger); Humber College of Applied Science and Technology and OPSEU, (1999), 80 L.A.C (4th) 108 (Schiff); OPSEU and Ontario (Ministry of Government Services), 2006 GSB 2002-2441; Algonquin College and OPSEU, 1989 (H.D. Brown); Fanshawe College and OPSEU,1991 (Brent); Niagara College and OPSEU,1998 (Swan); Fanshawe College of Applied Arts and Technology and OPSEU,2005 (Mitchnick); Durham College and OPSEU, 2012 (Knopf). Counsel for the college argued in reply that the union is attempting to define the case by its remedy. However the case is defined by the nature of the breach. In the first grievance, the union seeks a declaration that the work be declared CAAT Academic work and put in the unit. The second grievance specifically complains about the lay-off of the counsellors. These are grievances that could have been filed by individuals. Counsel argued further that the union is wrong if it claims that individuals could not grieve with regard to the recognition clause. The laid-off counsellors could have grieved the lay-off. The Track employees could complain that they were not classified properly. Counsel noted that the first two cases cited by the union are not college cases and have no language referenced in the decisions as to how the issue was raised under the particular collective agreements. In the Cambrian case counsel argued that the analysis falls into the trap of analyzing the dispute by remedy. Further, no one was laid-off and there was no one to claim the work. The same is true in the Humber case where again there was no laid-off employee that could claim the work. Counsel emphasized that this collective agreement does not allow the union to grieve if individuals can. 7 Counsel for the employer observed that the union did not address the criteria that allow the union to file a grievance even though an individual could. He submitted that in all of the other cases cited to the board there was an agreement on jurisdiction or at least no issue about the jurisdiction of the board was raised. In his view, the parties could have agreed to have the board hear the case. However, they did not. In summary counsel stated that the Cambrian and Humber cases had been decided wrongly and should not be followed. He argued that they are inconsistent with a majority of cases decided on this issue, including one of the most recent cases, Durham, which we will refer to further. Decision Article 32.09 has been in this collective agreement for many years. It specifically restricts the union’s power to grieve when an individual or group could do so, unless it can show that an individual did not grieve an unreasonable standard, which is a patent violation of the collective agreement and affects others in the bargaining unit adversely. The union here has not claimed the exceptions under Article 32.09. The only issue for us to decide is the claim that bargaining unit integrity can only be a union grievance and the matter grieved could not be brought in a grievance by an individual. The employer here acknowledges the union’s interest but emphasizes that individuals could have grieved the lay-offs and the classification of the Track employees. The employer relied on Durham, supra, a recent decision almost on all fours with the facts in the case before us. The 8 grievance alleged that the college improperly classified the Disability Advisors in the support unit when the positions should have been in the academic unit. The union sought to protect the integrity of the unit and have lost dues paid as a result of the improper classification. At the hearing, the union amended the claim for remedy to a declaration that the position of Disability Advisor be included in the unit and that the incumbents be placed in the academic unit. As argued before us, the union submitted in Durham, that the employer’s failure to put the Disability Advisors in the academic unit was a violation of the recognition clause. It argued that its entitlement to dues and the impact on the unit established that the grievance satisfied the requirements of Article 32.09. A majority of the board upheld the motion and dismissed the grievance. The board’s analysis began with a finding that a claim that a person is improperly classified is clearly something that an individual can grieve. Given that finding, Article 32.09 requires that the union establish the criteria specified in the article in order for the union grievance to be proper. The board analysed the facts and criteria and held that the union had not established a patent violation of the collective agreement, nor had it shown that the matter broadly affects the rights of employees. Given those conclusions, it was not necessary to decide whether there had been a breach of a ‘standard’. As the board pointed out there is well established jurisprudence that all three criteria must be shown for the union to establish that a board has jurisdiction to hear what could otherwise be heard as an individual grievance. 9 In conclusion, the board held that the essential nature of the case involved individual rights and therefore given the criteria restricting union grievances, when an individual could grieve, the motion had to be granted. The board clearly rejected the union’s argument that the case could proceed as a bargaining unit integrity case, even though individuals had a right to grieve. The board also found that the payment of future dues was “only an incidental aspect of the case” (p.7). There is no doubt in the case before us that the laid-off counsellors could have grieved. The Track employees could also have grieved that they were not properly classified. As in Durham, these grievances are essentially individual grievances. We agree with the analysis in Durham that under this collective agreement if an individual could challenge the college’s changes to their working conditions, then the union cannot unless it can establish the strict criteria required under Article 32.09. Counsel for the union argued that Durham was wrongly decided. The union relied on Humber, supra, where a majority of the board found that the union’s grievance was not barred by Article 32.09. That grievance provided in part: Work assigned to (see attached list) has not been assigned to be performed by persons who are members of the academic bargaining unit and the union is not receiving dues from such persons. (p.109) The remedy sought was as follows: “The work indentified above be performed by persons in the academic bargaining unit.” The facts in this case are similar to those before us and to those in Durham. 10 The board in Humber found that there were two “collections of interests”: the individual employees and the union. The union’s interests include, inter alia, the interest in getting dues as income and the interest of policing the college’s obligations under the collective agreement. It held: In other words, the College’s promise in the collective agreement to have defined work performed by employees in the bargaining unit runs to both individual employees and the union. An individual, on one hand, and the union, on the other, may rightly grieve to enforce the promise within the scope of the particular interests the agreement creates for each. (p. 112) Counsel for the employer argued that this case and the case it relied on (Cambrian, supra) were inconsistent with the line of cases that the college relied on. It was either wrongly decided or could be distinguished from the facts before us. In Humber, no employees were laid-off and the employees in the support unit had not worked for four months and therefore were not eligible to file a grievance challenging their classification. This is significantly different to the facts before us where two groups of employees could have challenged the college’s changes to their working conditions. Even though both the union and individuals may have a collection of interests in grieving the college’s changes to the counselling work, if individuals have a right to grieve, then a long line of cases have held that the union must meet the strict terms of the Article. The union made no argument that it satisfied the criteria under Article 32.09, therefore the employer’s motion to dismiss the grievances must be granted. 11 Thus, having carefully considered the submissions of the parties we hereby grant the employer’s motion, and dismiss the grievances for want of jurisdiction. Dated at Kingston this 29th day of January, 2014 Deborah Leighton ______________________ Deborah Leighton, Chair “Pierre Martin” _______________________ Pierre Martin, Union Nominee, Dissenting in part “Marc Piquette” __________________________ Marc Piquette, Employer Nominee, Concurring 12 Partial Dissent With all due respect to the decision put forward by the majority and to the fact that it is correct when taking into account the language contained in 32.09, I must regrettably dissent in part with the majority opinion. For a long period of time the language of 32.09 has been excessively restrictive by its wording and has also been the subject of numerous “Awards.” The language in 32.09 does not permit the “Union” to grieve situations that could be seen as worthy of pursuing. The fact that certain union members could have grieved the matter in question, but for some reason chose not to, adds credence to the issue at hand. A less restrictive language would possibly lead to important issues being heard by an Arbitrator or by a Board of Arbitration. For this reason I respectfully dissent in part. Pierre Martin Union Nominee