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HomeMy WebLinkAboutKelly 94-10-12IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION (hereinafter referred to as "the Union") - and - ST. LAWRENCE COLLEGE (hereinafter referred to as "the Employer") Grievance of Ronald R. Kelly # 94B024 System Wide Issue [Social Contract] BEFORE: M. G. Mitchnick- Chairman H. Cook- Employer Nominee S. Murray- Union Nominee FOR THE UNION: G. Leeb- Grievance Officer R. Kelly- Grievor FOR THE EMPLOYER: F. G. Hamilton- Counsel I. McArdle- Secretary, H.R. Committee Council of Regents Hearing held in Toronto, Ontario on June 9, 1994 AWARD This grievance arises out of the provincial government's invitation to the various parties or "stakeholders" in the broader public sector to come together in May and following of 1993 for the purpose of attempting to reach agreements, sector by sector, on the elements of a "social contract". As the government was to describe it in the Preamble to Bill 48: In order to achieve significant savings in public sector expenditures in a fair and equitable manner, the government is committed to facilitating negotiations between representatives of public sector employers and their employees for the purpose of maintaining effective and efficient public services. To this end, the government invited public sector employer and employee representatives of independent health practitioners to negotiate a Social Contract with the government. During the negotiations, which took place in April, May and June of 1993, the government tabled a framework agreement that included provisions for: It is desirable that legislation be enacted that carries out the general intent of the framework Social Contract by encouraging negotiated settlements while recognizing that a resolution is essential so that the necessary savings in public expenditures may be realized in a fair and equitable manner. For present purposes the relevant sector initially was the Colleges and Universities sector, with representatives on both sides from both colleges and universities across the province coming together with the government. Subsequently the Colleges spun off as a subsection of their own, and the talks with the government continued on that basis, including amongst the government- designated "bargaining agents" the Administrative Staff Consultative Committee ("ASCC") representing the unorganized administrative staff of the Colleges. Attendance at the talks was voluntary (apart from the reverse form of "incentive" offered by the government), and OPSEU for the purpose of its own participation "activated" the 7-person bargaining committee that had been elected to negotiate the Community Colleges' most recent collective agreement (1991-94). In the end, however, while the government and ASCC arrived at and signed a "Framework Agreement", OPSEU never did, ultimately pulling out of the talks altogether on the basis that it was not prepared to put its name to any document that would detrimentally affect the rights of its members under their existing collective agreement. The grievances before the board include both an individual grievance filed by Ron Kelly of St. Lawrence College, and a policy grievance filed on behalf of the full OPSEU bargaining committee. Several (though not all) of that seven-person committee lost vacation-time as a result of the Union's participation in the above-described "social contract" initiative, and the sole issue before this board is who will bear the responsibility for that lost time - OPSEU or the Colleges. In normal bargaining to review the College system's own collective agreement each round, it is recognized that that responsibility falls to the employer, by way of a particularly generous clause which is contained within the parties' collective agreement and which provides: 8.03 A The Colleges agree to provide paid leaves of absence for the seven employees who are the members of the Union's negotiating team. These leaves shall extend from the beginning of bargaining for a new contract until such date as it is completed, not just for the specific times at which direct negotiations are being conducted. The Colleges pay, in other words, for the full amount of the release period from the commencement to the conclusion of negotiations, and in the 1991-92 renewal round did so in the amount of some $450,000. OPSEU takes the position here that the Colleges are obliged to do so again, as a result of the efforts to reach a "Social Contract" agreement at the request of the provincial government, and in doing so notes that Article 8.03 A uses the broad or generic term "contract", while all of the other references to the collective agreement contained in this particular collective agreement are to the "Agreement", in most cases capitalized. The Union called evidence to show that the process of negotiating that went on under the "Social Contract" - the exchanges of proposals, the meetings in and out of caucus - very much resembled the kind of process that goes on in the usual "bargaining" for a new collective agreement. That there was nothing particularly new about the manner of "bargaining" is not surprising, but fails to shed light on the real issue here, which is the meaning of the word "contract" which appears in Article 8.03 A of the parties' collective agreement. Normally, what these "negotiating-cost" clauses in a collective agreement cover, wherein the employer agrees to indemnify the Union's committee members for time lost due to bargaining, is the bargaining for the renewal of that collective agreement itself. The Union here, particularly in light of the use of the word "contract" in Article 8.03A, reads into that article an intention to cover additional exercises such as the one the parties were invited to by Mr. Rae, and the first question for the board is whether that use of the word "contract" leads one to the more expansive interpretation of the article that is being urged upon us. In the board's view it does not. In the first place, the use of the word "contract" in Article 8.03A, when the parties have used "Agreement" everywhere else, is readily explainable when one realizes that this particular clause came out of an arbitration award of Professor Paul Weiler in 1985. In his supplementary reasons to explain his award, Professor Weiler wrote, at page 3: (iv) Union Negotiating Team In my decision, I directed that the Colleges provide compensation for the Union's seven-member negotiating team. My intention was to provide for paid leaves of absence during the time frame from which bargaining for a new contract began until such date as it was completed, not just for the specific times at which direct negotiations were being conducted. While recent experience indicates that this time frame will likely cover the full academic year, it was not my intention to provide a minimum guarantee of two hundred working days even in those years in which negotiations were successfully completed earlier. Thus the contract should be awarded accordingly. That this experienced labour-relations scholar was using "contract" in the conventional vernacular to mean the collective agreement is obvious not only from the context (and the further reference in the last line of that paragraph), but also from other reasons delivered throughout his award, all of which clearly once again use the colloquial term "contract" as referring to the collective agreement between the parties. And what the parties did here, rather than get into disputes trying to write their own language, was simply to incorporate the language of Professor Weiler's supplementary award directly into the collective agreement. That the Colleges have never sought to re-write that language in negotiations is not surprising, given that Professor Weiler's language appears relatively clear on its face, and no issue would have been apparent prior to the unanticipated events of 1993. Indeed, Professor Weiler's language does not speak simply of a "contract", but, once again in the vernacular, of a "new contract". That combined phrase, it seems clear to us in the context, was being used by Professor Weiler in the short-form and not unusual way of referring to the cyclical renewal of the parties' collective agreement. That is, this generous clause had in mind a particular, repeating exercise, the parameters of which were familiar to and controlled by the parties, and whose sole purpose was the production of a new collective agreement to replace the one previously in effect between them. The Union is certainly correct that the "Social Contract" talks were capable of producing results that, like proposed legislation, could have a definite impact on existing collective agreements -- indeed, OPSEU pulled out as soon as that possibility began to clearly materialize. But, to test the OPSEU theory of the clause, suppose it was the employer side who pulled out, and discussions between the government and interested trade unions went on for years. In our view, the more reasonable and probable reading of the form of indemnity clause awarded by Mr. Weiler is to take the term "new contract" as applying to the direct renewal of the collective agreement between the parties, and not to the kind of tripartite, "voluntary" exercise represented by the provincial government's "Social Contract" initiative (and bearing in mind that for the purposes of this collective agreement, the provincial government is not "the employer"). It is the view of the board, therefore, that the Colleges are not expected under Article 8.03A of the collective agreement to indemnify the Union for the costs of its participation in the above- described Social Contract endeavour, and the present grievances are dismissed. Dated this 12th day of October, 1994 M. G. Mitchnick H. Cook S. Murray