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HomeMy WebLinkAboutHancock 95-02-2194A754 HANCOCK VS ALGONQUIN IN 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 ALGONQUIN COLLEGE (hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") GRIEVANCE OF GEORGINA HANCOCK OPSEU FILE NO. 94A754 (hereinafter called the "Grievor") BOARD OF ARBITRATION: Richard H. McLaren, C. Arb. Jean-ClaudeLaniel, Union Nominee Rene St. Onge, Employer Nominee COUNSEL FOR THE EMPLOYER: Doug Gray COUNSEL FOR THE UNION: David Jewitt A HEARING IN RELATION TO THIS MATTER WAS HELD AT OTTAWA, ONTARIO, ON FEBRUARY 2, 1995. -2- PRELIMINARY AWARD On November 25, 1993, the College received a grievance from Ms. Georgina Hancock alleging: STATEMENT OF GRIEVANCE The College continues to violate the Collective Agreement between the Council of Regents for CAATs and OPSEU Academic Employees, particularly but not exclusively Article 6 MANAGEMENT FUNCTIONS, Article 14 - SALARIES, and Article 20 - PROFESSIONAL DEVELOPMENT LEAVE, the Social Contract Act, the Sectoral Framework and the posted Fail Safe program, with respect to the calculation and payment of salary due to me, as a person on Professional Development Leave from the College, for the period September 1, 1993 - December 31, 1993. During the period my 55% salary allowance has been further reduced, purportedly on account of the "Social Contract", by an amount said to have been "pro-rated", but without further rationale. REMEDY SOUGHT #1. That the College divulge and clearly demonstrate the extent to which the target savings to be realized by the College 1993/94 have not already been achieved by the faculty salary and benefit freeze and withholding of the salary grid step-progression, together with all productivity savings that could and must be applied. #2 That the College further demonstrate the extent to which the savings generated by all leaves, including the reduction of salary to faculty members on Professional Development Leave (in my case to 55% from September 1 to December 31, 1993), have been offset against the target saving (if any) still remaining to be met. #3 That, in the event that it becomes necessary for the College to further require faculty to forego salary, equivalent to a certain number of days of leave-without-pay, in order to meet the target savings, that this further requirement not be made of me or others on Professional Development Leave until all other salaries have been reduced to the same extent as have ours, and then only so far as all such further reductions are made in an equitable and non- discriminatory manner. #4 That the College restore and pay to me the full salary allowance to which I am entitled under the Collective Agreement and pertinent legislation, for the period beginning September 1, 1993, together with interest on any amount withheld beyond the due date. #5 That I not be required to contribute proportionately more than other members of the bargaining unit or other College employees to legitimate savings targets in 1993/94. #6 That the total reduction of my salary which may be required under the Social Contract Act, the Sectoral Framework and the posted Fail Safe program, be only so much as is fair and equitable with respect to that required of all other members of the bargaining unit and College employees. Note: The paragraph numbering is that of the Board.(Exhibit 2) On July 8, 1993 a statute, the short title of which is The Social Contract Act, 1993 ("the Act") came into force. That legislation established certain target dollar reductions which various public and quasi-public sector employees had to achieve in order to flatten the public expenditure curve. Section 3 of the Act divided these employees into sectors, one of which was the Community Colleges sector. Subsection 4 provides that a sector may contain one or more than one employer as is the case with the community colleges. Pursuant to Section 11 of the Act, a sectoral framework for the Community College sector was entered into dated August 2, 1993 (Exhibit 5). This agreement failed to include within it the Colleges' academic employees. As a consequence of the failure to use that method of achieving the purposes of the Act and in the absence of any local agreement for the academic staff Part VII, the Fail-Safe provisions of the Act applied. This particular College is within the scope of the Fail-Safe provisions by virtue of Section 23(1)(a) of the Act. Under the Fail-Safe provisions in Part VII of the Act, Section 24(1) provides that the rate of compensation for each employee is to be that which was in effect immediately before June 14, 1993. This is known as the "wage freeze". It is one aspect of the way in which the target reduction in expenditures is to be achieved. The Act goes on in Section 25 to provide for up to twelve days unpaid leaves of absence in each of three periods ending on the 31 st of March, 1994, 1995 and 1996. Section 25(2) provides that if the employer uses provisions in the Collective Agreement to provide unpaid leaves, then the number of days of unpaid leaves, the maximum of which is to be twelve under subsection 1, is to be proportionately reduced. In late August of 1993 the College posted its Fail-Safe program. It did so pursuant to the provisions of Section 27 of the Act, together with Sections 28 and 29. The Union made an application for a review of the Fail-Safe program, the original portion of which predated the publication of the regulations under the Act. The completed application following the publication of the regulations was received by the Office of the Adjudicator on October 26, 1993 (Exhibit 7). AdjudicatorMcKechnie made a decision relating to the objections of the Union dated July 13, 1994, some eight months after the filing of the review application. In this proceeding, the College made a preliminary objection as to the jurisdiction of this Board to hear the grievance. In its submissions it stated that a number of the general or global issues raised in the grievance as set out above had been dealt with in the objection and review of the Fail- Safe program which gave rise to the decision of the Adjudicator. It was, therefore, submitted that while there is jurisdiction to hear grievances using the collective bargaining grievance procedure by Section 33(1) of the Act, there is an exception to that jurisdiction in respect of subsection (2). By that subsection, this Board of Arbitration cannot make any decision that "an Adjudicator is entitled to make under subsection 31(2)". It was the submission of the College that a decision had been made by an Adjudicator and that the issues of the grievance were ones which the Adjudicator was entitled to make and therefore there was no jurisdiction to hear the grievance. Counsel for the Union indicated in response that the global issues raised in the Statement of Grievance and in paragraphs 1 and 2 of the Remedy Sought as marked in the grievance set out above, were not being placed before this Board. The grievance predates the deliberations and subsequent Award of Arbitrator McKechnie and as a consequence raises issues found in the Union's submissions to the Registrar of the Office of the Adjudicator of the Social Contract. Therefore, those matters in paragraphs one and two are not now before this Board. What is being put before this Board are the specific issues relating to this grievor as an individual who is on a Professional Development Leave; and, who alleges the possibility of inappropriate payment as well as the matters raised in paragraphs 3, 4, 5, and 6 as numbered above. It is these latter specific items which are at issue in the grievance and before this Board of Arbitration. These are the matters which raise the determinations to be made with respect to the jurisdiction of this Board to deal with the grievance. The specific issues which the Board determines that the grievance raises are: 1. Can the 55 % salary allowance be further reduced proportionally? (From Statement of Grievance) 2. Has the method of imposition of unpaid leaves on those on Professional Development Leave been imposed on the same terms as with all other employees so that the reductions are made in an equitable and nondiscriminatory manner? ( #3 ) 3. Has there been a calculation error entitling the Grievor to return of monies?( #4 ). 4. Is more proportionately being demanded of those on Professional Development Leave than on other bargaining unit employees? ( #5 ). 5. Is the imposed salary reduction fair and equitable for those on leave as against others in the bargaining unit? ( #6 ). The College's Fail-Safe Program pursuant to Part VII of the Act provided for the implementation of unpaid leaves of absence in the following fashion. 4.1 Subject to 4.4, 4.5, 4.6 and 4.7, employees covered by this Program, except employees referred to in 1.3, shall take 6 unpaid leave days during the period commencing with the day of posting under section 29 of the Act and ending March 31, 1994. 4.2 Subject to 4.3, 4.4, 4.5, 4.6, and 4.7, employees covered by this Program, except employees referred to in 1.3, may be required to take up to 12 unpaid leave days during each of the annual periods ending March 31, 1995 and March 31, 1996. 4.3 If unpaid leave days referred to in 4.2 are required, the number in each year will be specified in amendments to the Program to which sections 30 and 31 of the Act will apply. 4.4 Employees who are hired by the Colleges and work less than any of the periods ending March 31, 1994, 1995 and 1996, as referred to in 4.1 and 4.2, will be required to take a prorated number of relevant unpaid leave days. 4.5 Employees who regularly work less than a complete year will be required to take a prorated number of the relevant unpaid leave days. 4.6 For greater certainty, for the purpose of 4.4. and 4.5, the regular vacation period shall be considered time worked. 4.7 In the calculation of the number of unpaid leave days, in order to ensure that the annual earnings of an employee do not fall below $30,000.00, the number of unpaid leave days required to be taken shall be reduced if necessary. The Union requested a review of the program of the College the application for which was filed as Exhibit #7. The Adjudicator's review and award was issued July 13, 1994. The program was amended as a result but the six unpaid leave days for the period ending March 31, 1994 was affirmed. The College implemented the six unpaid leave days by allocating one day to December 24, 1993 and five days in a week in March of 1994. The result for the grievor was that one of the unpaid leave days fell within the Professional Development Leave which existed until December 31, 1993. She was during that leave only paid 55% of her salary. In recognition of the single unpaid leave day falling within her Professional Development Leave her salary was adjusted; but, at a lesser amount than it would have been had she been on full salary. Both counsel agree that if there is any calculation error or dispute about the calculation that would be a matter within the Board's jurisdiction and not part of this preliminary determination. Counsel for the College raises by way of a preliminary objection the proposition that a number of the provisions in the Act bar this Board from hearing this grievance the most important of which is s. 33(2). It was submitted that all the issues including the ones unique to the Grievor had been dealt with by the Adjudicator and could not be entertained by this Board. In support of its position reference was made to Re Toronto Electric Commissioners, 41 L.A.C. (4th) 80 (Schiff, 1994). Counsel for the Union agreed in his submissions that this Board could not go in and do what AdjudicatorMcKechnie had done. However, it was submitted that nothing dealt with how leaves were to be taken where an employee has part of her time unpaid and part of it paid as could be the characterization under the Professional Development Leave. Furthermore, the Grievor while on leave is not at work so cannot designate a day off work when not there in any event. That is a matter to be resolved by the grievance procedure. It was also submitted that the fair and equitable treatment while dealt with by Adjudicator McKechnie was not dealt with in the context of fairness with other academic staff. In support of its position reference was made to the following jurisprudence: An unreported decision between Trent University and CanadianUnion of Educational Workers, Local 8 a decision by Arbitrator Starkman dated May 16, 1994; an unreported decision between Porcupine Area Ambulance Service and Canadian Union on Public Employees. Local 1484 a decision by Arbitrator Dumoulin dated January 10, 1994; an unreported decision between Victoria Order of Nurses Ottawa Carleton Branch and Ontario Nurses' Association a decision by a Board of Arbitration chaired by Arbitrator Brown dated October 11, 1994. Decision Section 33(1) of the Act permits an employee to grieve using the structure of the grievance procedure contained in the collective agreement to do so. This is a new and different type of grievance than those wholly within the four corners of the collective agreement and arising out of it. This is a grievance arising out of the " . . . interpretation, application, administration or alleged contravention of a program developed by the employer..." That is the College's Fail-Safe Program. This right was described by the present chair person in Sault Ste. Marie Public District Roman Catholic Separate School Board and CUPE Local 3152, a group grievance in a majority decision dated October 19, 1994 at p. 6 in the following fashion: Section 33(1) grafts into the existing Collective Agreement dispute resolution procedure between the parties a new form of grievance whose origins are wholly within the Act as opposed to being within the Collective Agreement. Therefore there are two streams of grievances those which arise under the Collective Agreement and those which arise through the Act under s. 33(1). The present chair person also decided that under the particular Collective Agreement in this matter it will be a matter of threshold characterization whether the grievance may flow through the dispute resolution procedure provided by Article 11 of the Collective Agreement, or, must go through the procedure provided by Article 32. It is this latter procedure under which this proceeding is being conducted, there being no issue as to the suitability of this grievance for resolution under Article 11. See the award of the majority dated February 7, 1995 in a Union Policy Grievance betweenGeorge Brown College and OPSEU. However, this new form of grievance is not all pervasive. Section 33(2) carves out a segment of potential grievances and leaves them excluded from subsection one and within the control of what the Act refers to as the Adjudicator. It narrows the grievances which can be filed by way of "interpretation, application, administration or alleged contravention of a program" to those matters outside of what the Adjudicator made or is entitled to make in the way of decisions in reviewing a program under s. 31(2). The specific language of s. 33(2) bars an arbitrator or a board of arbitration from making any decision "... that an adjudicator is entitled to make under subsection 31(2)." It is this section which is said by Counsel for the College to be an absolute bar to the proceedings before this Board. It is further submitted that this absolute bar is reinforced by the provisions of ss. 34(4) and (5). What has to be determined in this case is whether the issues as defined by this Board and listed above are ones that the Adjudicator McKechnie made or was entitled to make but did not do so. If any of the issues are found to be within the jurisdiction of Adjudicator McKechnie then this Board has no jurisdiction to hear those issues. Otherwise the grievance is one of the new forms of grievance which arise wholly out of the existence of the Act as provided for in s. 33(1). Union Sub mission 3. Non-bargaining unit employees have only a two year wage freeze which is unfair 1. Six unpaid leave days exceed and inequitable treatment to those required to each the employees. annual expenditure target. 4. The value of unpaid leaves 2. There must be un-equivalent ought to be given credit in reduction in work load.achieving the target reductions. AdjudicatorMcKechnie p.8 not an unreasonable number and did not violate the Act. p.9 work in relation to the day is not required no violation of the Act. p.12 employees within a program under a particular part of the Act must be treated fairly and equitably but not as between parts. p.13 unpaid leaves under a collective agreement when used to achieve the purposes of the Act require a reduction from program unpaid leaves. The Board of Arbitration concludes from the foregoing comparison that it has no jurisdiction pursuant to s. 33(2) of the Act to determine: 1. the number of unpaid leave days as being anything other than 6 for the period ending March 31, 1994; 2. the program consistency with the criteria of s. 27(2) including the program being fair and equitable in its application to all employees; 3. Professional development leaves and other leaves savings being calculated as an offset to the expenditure reduction target. Given the foregoing determinations as to absence of jurisdiction the Board would conclude that the following elements of the grievance are within its jurisdiction to determine and are not barred by s. 33(2). 1. The calculations of monies to be deducted and the formula for that calculation. 2. The characterization of the Professional Development Leave as wholly a paid leave or partially an unpaid leave to which other provisions of the Program may apply. 3. Whether an individual who is on such a leave is at work so as to be required to suffer an unpaid leave day pursuant to the program on December 24, 1993. The Board rules based on all of the foregoing that it does not have the jurisdiction to deal with paragraph #3 and #6 of the grievance as set out above. That jurisdiction rests with the Adjudicator in so far as the grievance raises issues related to point 4 of s. 27(2) of the Act as to the program being "fair and equitable in its application to all employees." Beyond this specific holding and the other matters dealt with above, this Board does have some jurisdiction to hear this matter. The parties are directed to take this award and determine if they wish to proceed with the grievance on the basis of it. Counsel are to advise the chair person of the Board in writing of their desire to proceed with the hearing on the merits within 30 days of the date herein. The Board will proceed to fix a date for the continuation of these matters if written notice of a desire to do so is received within thirty days. DATED AT LONDON, ONTARIO THIS 21ST DAY OF FEBRUARY, 1995. Richard H. McLaren, C.Arb. I concur Jean-ClaudeLaniel, Union Nominee I concur Rene St. Onge, Employer Nominee