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HomeMy WebLinkAboutUnion 95-06-30IN THE MATTER OF AN ARBITRATION B E T W E E N : ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF ST. LAWRENCE COLLEGE (hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") UNION POLICY GRIEVANCE DATED March 15, 1994 BOARD OF ARBITRATION:Richard H. McLaren Sherril Murray, Union Nominee Bob Gallivan, College Nominee COUNSEL FOR THE COLLEGE:Fred G. Hamilton COUNSEL FOR THE UNION:Gavin Leeb A HEARING IN RELATION TO THIS MATTER WAS HELD AT KINGSTON, ONTARIO, ON MARCH 30, 1995. WRITTEN ARGUMENT WAS CONCLUDED ON APRIL 26, 1995. AWARD By memo on January 12, 1994 the College President announced to the Union President, Ron McPhee, and others that the College was experiencing an "Extraordinary Financial Exigency". It purported to be giving written notice of such exigency in accordance with Article 29 of the Collective Agreement. It went on to state: ... the College'[s] plan(s) to significantly reduce the number of full-time regular employees. A document entitled "Strategies and Budget" which was distributed to all college employees on January 12th outlines the strategies and plans that will be implemented to cope with our financial realities. Over the next two weeks a detailed plan of action to implement the academic strategies will be made available to you and the CESC. I will continue to meet with you and the support union presidents to keep you informed about and involved with this restructuring. Time is critical so there is a need to move quickly. I will look to the CESC to present its recommendations or advice to deal with this financial exigency.... (Exhibit 4) It was clearly the intent that the College Employment Stability Committee (CESC) was to receive a detailed plan of action from the College. It is this information and the process surrounding it about which the Union complains. A Union Policy Grievance was filed on March 15,1994 which reads: ... the College is violating Article 29.02 specifically but not exclusively in that they have not complied with the provisions of the Article: Settlement Desired: that the College comply with the provisions of this Article. (Exhibit #2) The relevant provisions of the Collective Agreement read as follows: 29.02 In the above circumstances the College shall give written notification to the Union Local President and the College Employment Stability Committee (CESC) of the College's plan to reduce the number of full-time regular employees who have completed the probationary period by lay-off of five percent or 20 employees whichever is less and indicate the courses, programs and services to be reduced or eliminated and provide the Union Local and the CESC with the budgetary data used by the College in reaching its tentative decision for a planned staff reduction. 29.03 ... (v) whether or not, and to what extent, any required reductions could be accommodated, in whole or in part by: (a) adjusting faculty instructional assignments; (b) curtailing certain academic programs. 32.04 C The finding of the majority of the arbitrators as to the facts and as to the interpretation, application, administration or alleged contravention of the provisions of this Agreement shall be final and binding upon all parties concerned, including the employee(s) and the College. 32.04 D The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper matter for grievance under this Agreement. (Exhibit #l) Mr. Don Lemieux, the College Treasurer, provided the Union with the Annual Report on Operations which was submitted to the Board of Governors of the College for the fiscal years ending March 31, 1993 and 1992 (Exhibits #6 & #7). The year end Financial Statements for the same two fiscal periods were also provided (Exhibits #8 and #9). The Union received this data in early February of 1994. The Union President requested of the College President, Mr. Dan Corbet, additional financial data and was given the Operating Fund Budget dated January 31, 1994. That information reveals that the expected revenue for the 1994/95 academic year would be approximately three and one-half million dollars less than for the 1993/94 current academic year which was in progress at the time of the preparation of the document. It was this anticipated cutback in Ministry funding which was reflected in the Operating Fund Budget, filed as Exhibit #10. Mary Ann White, who is not a member of CESC, is the Chief Steward and had been asked to provide financial input to the Union Committee involved with CESC. She requested of Mr. Lemieux on February 17, 1994 a "year to date statement outlining the expenditures to budget" and a "line-by-line budget for the upcoming year" (see Exhibit #11). This latter request by Ms. White to Mr. Lemieux was not satisfied because no line-by-line budget had been prepared for the 1994/95 academic year. The first request was satisfied by the Operating Fund Budget document which the President of the College had also agreed to provide to the President of the Union on the same date of February 17, 1994. Ms. White filed a grievance after receiving no response to her second request. With no grievance procedure available, so Ms. White believed, the matter was submitted to arbitration. It is apparent from the evidence before the Board that Ms. White was unaware that the College had responded to the grievance on March 22nd, as set out in Exhibit #3. That response read: This letter is in response to the OPSEU Local 417 Union grievance dated March 15, 1994, which states: STATEMENT OF GRIEVANCE: SETTLEMENT DESIRED: The College has provided Local 417 with notification of its tentative decision to reduce the number of full-time academic positions by more than twenty (20) along with a list of the programs, courses and services to be reduced or eliminated, based on the magnitude of the original budget reduction. The College has also provided Local 417, through the College Employment Stability Committee, with all budgetary data used by the College in reaching its tentative decision for this staff reduction. Your grievance does not specifically indicate which provisions on Article 29.02 the College has allegedly violated. After reviewing your grievance, Article 29.02, and the information which has been provided to Local 417, I do not believe the College has acted inappropriately; therefore, your grievance is denied. I would like to add that the College provided notification under Article 29.02 based on the then current situation. The College felt that it was better to provide the notice and err on the side of caution than to not provide the Local with appropriate notice. In light of the overwhelming response to the early leave plan, coupled with the progress of the College Employment Stability Committee, the College may in fact, in the end, not fall under the definition of an extraordinary financial exigency. (Exhibit #3) The author of this response was Jeanie Sawyer, who was at the time the Vice-President of Human Resources and Student Services for the College. Ms. Sawyer testified that the financial data used by the Board of Governors on January 11th to make a declaration of financial exigency was the data which was communicated by the President of the College to the whole College community, including all employees, and was filed in these proceedings as Exhibit #15. The initial thinking of the College was that there would have to be approximately 55 individuals laid off. The early leave plan and the opportunity for voluntary leaves were developed as a response to this position and were filed as Exhibit #16. They, together with other measures, resulted in the reduction of the number of staff who were to be laid off to seventeen, of which thirteen were actually laid off. It is the testimony of Ms. Sawyer that CESC operated on the budget information provided by the College and reached its recommendations on March 23rd based on that data. It was her clear evidence that line-by-line budgets were unavailable because they were in the process of being prepared and were not in fact finished until the summer of 1994. The Academic Union was given the opportunity to make a presentation to the Board of the College. It did so by a written document which was filed as Exhibit #19 in these proceedings. The Union's written submission provides that there are two issues in connection with the arbitration. One submission centred on whether the College was bound by Article 29. The College in its written submissions indicated that it was not advancing such an argument. Therefore, those submissions need not be summarized herein. The second issue identified by the Union argument centres on the scope and nature of the budgetary data which the Union believes it is entitled to receive by the terms of the Collective Agreement. It is the submission of the Union that the College was required to provide all of the information, financial or otherwise, which it used to make its initial decision to declare a financial exigency. The Union contends that all of that information was not so provided. It was submitted that in order for the Union representatives on the CESC to fulfil their responsibilities they must have access to the same information that the College possessed and used to make decisions to lay off staff. It was argued that the information provided to all employees showed a projected deficit for 1994/95 of 8.6 million and that the detailed financial information, which the Union alleged must have been used to arrive at that figure, had not been disclosed to the Union. Furthermore, no data was provided to the Union which would have explained how the College determined a target of 55 lay-offs within the faculty. It was submitted that the reference to "budgetary data" in Article 29 encompasses all financial information including, but not limited to, non-aggregated costs. By refusing to provide the Union with its financial information because it was not in a certain format, specifically line-byline, the Union claimed that the College unduly restricted the meaning of ''budgetary data". It was submitted that the language suggested that there would be a sharing of financial information constituting more than mere budget information. In support of its position reference was made to the following arbitration decision: Re Board of Governors of Ryerson Polytechnical Institute and Ontario Public Service Employees Union 40 L.A.C. (4th) 25 (McLaren, 1994) It was submitted on behalf of the College that it had identified the budgetary data that it used in reaching its decisions and gave all of the same to the Union. There is no evidence that any other information was used. It was submitted that a new budgetary methodology was followed in building the budget because the shortfall was being caused by a revenue reduction. It was further submitted that the detailed data which Ms. White wanted was not available because it was too early in the budgetary development process for it to be available. Moreover, it was submitted that the data was not used in making the decisions associated with the grievance. The College stressed in its submissions that the decision it made was a tentative one, and as the process was still in flux at that time, the final detailed data was not available. The input provided by the CESC was made while the decision-making process was still in its tentative process; detailed line-by-line data was required only for relatively final decisions. Moreover, the College submitted that the Union representatives within CESC had not ceased functioning and that the grievance had not arisen from a CESC member. The members sitting. on the CESC accepted that the financial data used by the College was available to them. A lineby-line budget was not used by the College nor was it necessary for the CESC to make its recommendations. Article 28 of the Collective Agreement provides for the establishment and maintenance of CESC. It is a joint Union/Management Committee dedicated to enhancing job security and avoiding, to the greatest extent possible, the need for lay-offs. The balance of that Article has a number of detailed provisions describing the functions of CESC on an on-going basis. In an emergency or extraordinary financial exigency where there is the possibility of large-scale lay-offs, Article 29.03 provides the mandate of CESC. It states that CESC is responsible for considering very specific options and alternatives as a means of reducing the apparent need for lay-offs. The evidence is clear that the process worked well at this College and was successful in its objective of reducing to a large extent what initially appeared to be a very large number of lay-offs. The obligation of the College under Article 29.02 of the Collective Agreement is to provide the Union Local and CESC with the "budgetary data used by the College in eaching its tentative decision for a planned staff reduction" {emphasis that of this Board}. That phrase requires interpretation in the context of any given situation and raises a question as to what the parties' intention was with respect to the information included within its scope. A budget involves the composition of financial data based upon assumptions and other determinants of a non-financial nature. The use of the phrase "budgetary data" in the Collective Agreement should not be interpreted as meaning merely financial information. It must take account of the information which is compiled to support the financial data and the assumptions used in the compilation of that data. As the facts reveal in this case financial data was provided to the Union by way of the operating fund budget in Exhibit #10. More than mere financial data was also provided in the form of Exhibit #15 which identified courses, programs and services to be reduced or eliminated together with a revenue analysis. In the Collective Agreement the phrase "budgetary data" is then qualified by the words "used by the College". This qualification means that what CESC may obtain as of right arising out of the bargaining agreement is the precise and exact "budgetary data" that has been used by the College. More may be given but at the very least that which is used must be given. Therefore, the use of the phrase "budgetary data" must be interpreted as including not what might broadly be within such a phrase on a theoretical interpretation but that which is within the phrase and also is used by the College. The evidence is overwhelming that the root of the problem for this College was a three and one-half million dollar anticipated reduction in the revenues received from the Ministry for funding the forthcoming academic year. When that information became available in January, the College management determined that it had a problem which would require some kind of reduction in the scale of operations of the College. It elected to make the declaration provided for under Article 29. It complied with the Article with respect to the provision of notice. An issue in this Arbitration is the allegation that not all of the budgetary data was submitted to the Union Local or CESC. However, the evidence does not establish that there was other information which was available or being used to arrive at the declaration of financial exigency; its ensuing consequences; nor, during the CESC process. If that had been established; then, this Board could have issued an order compelling the production of such information and 10 possibly other remedies. There is no evidentiary basis to act in this fashion given the facts established before us. All that happened was that the College used a different form of budgetary data than it had done in the past for its regular operating budgetary processes. It defined the budget commencement point by using projected total revenue generated for the forthcoming year rather than on a program expenditure premise. The second request of Mary Ann White was for a line-by-line budget for the upcoming academic year in which the revenue reduction would arise. The evidence establishes that the line by line budget for the forthcoming academic year was not completed and was in progress when the financial exigency was announced. Indeed, such a budget cannot be completed until specific cost items such as the number of academic staff to be deployed in the upcoming year were known. In the Union's reply submissions, there is a discussion that they ought to have received the line-by-line budget for the current year in which the College made the original declaration of the financial exigency. That data was never requested by the Union and is not part of the grievance. Where the College was, in the actual expenditure cycle for the current academic year, would only have a bearing on whether the budget break-even would be achieved in the current fiscal year; or, whether there would be a shortfall which might also act to aggravate the upcoming revenue reduction in the following academic year. However, it was not part of Mary White's original request and is not considered part of this grievance by the Board of Arbitration. The untimely death of the chief financial person for the College has probably complicated the presentation for this arbitration. It is not known what his understanding was of the request being made of the College. It is found by this Board that the information on which the College based its decision was openly provided to all members of the College community by the President, and was filed as Exhibit #15. The Union was provided with other financial information in the form of Exhibit #10, which is not generally provided to the employees. The evidence established that the Union possessed all the budgetary data which the College used in making its decision. The College could not be required to provide the Union Local with a line-by-line budget for the forthcoming year unless the College had such a document already in its possession and used it for its own purposes in determining lay-offs; which it did not. The evidence does establish that the leave programs undertaken and other matters arising during the course of the CESC discussions were effective in reducing what would be the tentative decision for planned reductions from 55 to 17. Then for other reasons not directly explained in the evidence, the actual lay-offs was not the 17 that emerged from the CESC process, but only 13. In all of these circumstances it can only be determined that the College has provided the information required by Article 29.02 upon which it made its tentative decisions. That information was used by CESC. The CESC process worked effectively as it was contemplated under Article 29. There can be no breaches of the provisions of the Collective Agreement found on the basis of the evidence. It is therefore ordered that the grievance be dismissed. DATED AT LONDON, ONTARIO THIS 30TH DAY OF JUNE, 1995 Richard H. McLaren, C.Arb. I concur/dissent "SIGNED " Sherril Murray, Union Nominee I concur/dissent Bob Gallivan, College Nominee