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HomeMy WebLinkAboutYoung 95-02-0794D270-286 OPSEU VS CAMBRIAN IN THE MATTER OF AN ARBITRATION BETWEEN CAMBRIAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR DAVID CAMELETTI COLLEGE NOMINEE JON MCMANUS UNION NOMINEE Appearances for the College: Vincent P. Johnston Glenn Toikka Susan Pratt Appearances for the Union: N. Luczay John Closs Heinz Wicke Earl Waytowich OPSEU FILE NOS.: 94D270 - 94D286 HEARING DATE: November 25, 1994 The grievances, which were filed by a number of Professors at the College, concern the implementation of monthly pay periods. By way of relief, the Grievors request that the College revert to paying salary on a bi-weekly basis. The relevant facts are not in dispute. Although at one time, employees were paid twice monthly, for a number of years prior to 1993, the College paid employees on a bi-weekly basis. In 1993, the College made the decision to pay full-time faculty and administrative staff on a monthly basis. It was the evidence of Glenn Toikka, the College Controller, that by implementing monthly pay periods, the College could reduce its payroll staff by one full-time employee. As well, there were certain savings in terms of bank charges which, for faculty alone, amounted to approximately $6,000.00. In fact, the Union did not appear to dispute that there were legitimate business reasons for the College's decision. It was also acknowledged that, as a result of the change in pay periods, no employee received less than the annual salary to which he or she was entitled under the collective agreement. As to the manner in which the new system was implemented, the evidence indicates that in March, 1993, the matter was discussed at the Employee/Employer Relations Committee, which is comprised of representatives of both the College and the Union. Thereafter, on April 21st, Mr. Toikka issued a memorandum to full-time faculty and administrative staff advising that effective July 1st, the College would begin paying employees on a monthly, rather than a bi-weekly, basis. On April 30th, Mr. Toikka issued a further memorandum specifying the monthly pay days for the balance of 1993 and all of 1994. Mr. Toikka testified that he issued these memoranda in order to provide employees with reasonable notice of the change in pay periods. The Union was formally notified of the change on May 31st. Apart from the evidence of Mr. Toikka, the Board also heard evidence from two of the Grievors; namely, Earl Waytowich and Heinz Wicke. Both of the Grievors testified that as a result of the change in pay periods, they had difficulty meeting certain financial commitments in a timely manner as these commitments had been arranged on the basis that they would be paid bi-weekly. Some of these commitments also had to be rearranged and Mr. Waytowich testified that the change in pay periods as well as other financial problems he experienced affected his credit rating. The provisions of the collective agreement referred to by the parties are as follows: Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: (i) maintain order, discipline and efficiency; (ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. Article 23 PREPAID LEAVE PLAN (PLP) 23.01 The Prepaid Leave Plan (PLP) has been develop ed to afford full-time employees the opportunity of taking up to a one year leave of absence and to finance the leave through deferral of salary from the previous years in an appropriate amount which will be accumulated and together with interest, be paid out at the commencement of the leave. 23.04 The payment of salary and benefits, and the period of the leave of absence shall be as follows: (i) In the period of the program, preceding the period of the leave, the employee will be paid a reduced percentage in accordance with 23.03, of the employee's annual salary as set out in Article 14, Salaries, and the applicable allowance(s) as set out in Article 14, Salaries. (ii) The remaining percentage of annual salary will be deferred an d this accumulated amount plus any interest earned shall be retained for the participant by the College to finance the period of leave. (iii) The calculation of interest under the terms of this PLP shall be monthly (not in advance). The interest paid shall be calculated by averaging the interest rates in effect on the last day of each month for a true savings account, a one year term deposit, a three year term deposit and a five year term deposit. The rates for each of the accounts identified will be those set out in writing by the Bank Branch with which the College deals. Interest, calculated as above, shall be applied on a monthly basis, the fist credit to be the month following the initial deposit. A yearly statement of the amount standing in the participants' credit will be sent to the participant by the College. If at the last day of any month, any one or more of the above products is not offered by the bank with which the College deals, then the interest rates on the remaining products will be averaged. Reference was also made to Article 14 which contains the salary schedules in which salaries are stated in annual terms. While the Union appeared to concede that there is no provision in the collective agreement which expressly requires the College to pay salary on a bi-weekly basis, nevertheless, it was contended that the College is estopped from altering its prior practice. In support of this submission, the Union relied on the provisions of the prepaid leave plan contained in Article 23 and, in particular, Article 23.04(iii) which provides that the calculation of interest under the plan shall be monthly (not in advance). The Union contended that as interest accrues at a different rate depending upon whether salary is paid bi-weekly or monthly, the College ought to be precluded from implementing a system of monthly pay periods. The Union conceded, however, that it was not aware of whether any of the Grievors were on prepaid leave. The Union also contended that employees were not provided with sufficient notice of the change in pay periods. It was the submission of the College that the grievances do not allege a violation of Article 23, nor is there anything in that Article which is dependent upon employees being paid bi- weekly. Moreover, it was contended that the elements necessary to support an estoppel have not been established. The College further submitted that under this collective agreement, salaries are stated in annual terms and there is no provision which deals with the method or timing of salary payments. Accordingly, the matter is governed by management rights. As there were legitimate business reasons for the College's decision to implement monthly pay periods and as employees were provided with reasonable notice of the change, the College submitted that there was no basis upon which to impugn its decision. As a result, the College requested that the grievances be dismissed as inarbitrable. The issue, then, is whether the implementation of monthly pay periods violates the collective agreement. In this regard, as pointed out by the College, salaries are stated in annual terms and we find that there is no provision of the agreement which deals with the subject of pay periods or the method by which salary is to be paid. We note that a similar conclusion was reached in Georgian College and Ontario Public Service Employees Union February 21, 1984 (Brent (unreported)) and Northern College and Ontario Public Service Employees Union January 17, 1991 (Mitchnick (unreported)). As to Article 23, which deals with prepaid leave, as noted by the College, the grievances do not allege a violation of this provision, nor was there any indication that any of the Grievors were on prepaid leave. Moreover, while Article 23.04(iii) provides that interest under the plan is to be calculated monthly, not in advance, in the Board's view, this cannot be construed as having any application to the matter of pay periods. There is also nothing in Article 23 or elsewhere to indicate that the College represented to the Union an intention to forego its strict legal rights to make a change in pay periods and, accordingly, one of the principal elements necessary to support an estoppel has not been made out. In the result, the Board finds that the matter of pay periods is governed by the management's rights clause and that in this case, the College implemented monthly pay periods for legitimate business reasons. Moreover, although some of the Grievors, such as Messrs Waytowich and Wicke, may have experienced difficulty adapting to the new system, their concerns appeared to relate to the fact that the College implemented a change in pay periods rather than to the length of the notice provided. In the circumstances, therefore, the Board cannot conclude that the period of notice was unreasonable. Accordingly, the Boards finds that there has been no violation of the collective agreement and the grievances are, therefore, dismissed. DATED AT TORONTO, this 7th day of February, 1995. "J.H. Devlin" Chair "David Cameletti" College Nominee "Jon McManus" Union Nominee