HomeMy WebLinkAboutUnion 15-10-13In the Matter of an Arbitration
Pursuant to the Colleges Collective Bargaining Act, S.O. 2008, Chapt. 15
Between:
SAULT COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the Employer/College)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 613
(the Union)
Re: Union Dues; Workload; Staffing
OPSEU # 2014-0613-0002
A W A R D
Paula Knopf – Arbitrator
APPEARANCES:
For the Employer: Daniel J. Michaluk
For the Union: Rebecca Liu
The hearing of this matter was conducted by way of teleconference on
September 29, 2015.
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This Award deals with the parties’ request to determine what scope this Arbitrator
has over the implementation, interpretation and enforcement of Minutes of
Settlement that were adopted as the result of a hearing that was convened
before me to resolve a Union grievance dated February 20, 2014. The grievance
was with respect to the Natural Environment and Outdoor Studies (NEOS)
Program. It was worded as follows:
Statement of Grievance:
RE: Filling of at least 8 Full-Time Professor positions vacated by multiple
retirements and increasing workload in NEOS
Violation of Articles 2, Article 6, 10 and possibly others [sic]
Settlement Desired
1. Fill the positions as Regular Full-Time Professors
2. Make the Union Whole
3. Any other remedy the arbitrator sees fit
At the hearing, the parties engaged in discussions with the aim of resolving this
grievance. Their discussions were intense, but fruitful, and resulted in them
reaching Minutes of Settlement dated March 3, 2015 that read as follows:
WHEREAS the Union filed a staffing grievance about staffing in the NEOS
department in February 2014;
AND WHEREAS the parties wish to settle matters arising out of the
grievance;
NOW THEREFORE the parties agree:
1. The parties acknowledge that the College has filled two full-time
positions in the NEOS department since the filing of the grievance.
2. The College will post by April 15, 2015 and endeavor to fill a full-time
position in the NEOS department with a view to filling the position by
August 17, 2015.
3. The College will post and endeavor to fill a full-time position in the
NEOS department promptly if Terri Winter indicates she will not be
returning from leave and, in any event, if she does not return from
leave before October 1, 2015 with a view to filling the position by
January 1, 2016.
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4. The College will otherwise endeavor to maintain an eight position
minimum full-time complement in the NEOS department for the life of
the current collective agreement.
5. The parties will have good faith discussions about staffing as
contemplated by Article 7 of the Collective Agreement.
6. The grievance is fully and finally settled and withdrawn.
7. These minutes are without prejudice and shall not be adduced in
evidence except for enforcement purposes.
8. Arbitrator Knopf will remain seized with respect to the implementation
and enforcement of these Minutes.
Subsequent to these events a new grievance was filed by the Union on July 8,
2015 (hereinafter referred to as the Job Posting grievance). It reads as follows:
Statement of Grievance:
VIOLATION OF Article 27 and possibly others of the Collective Agreement
and any other acts or legislation deemed appropriate.
Re: The College has failed to post and hire a replacement for J.
Zuchlinski and the position remains vacant.
Settlement Desired
1. The College to immediately post and hire a regular full-time faculty as a
replacement.
2. Make the full-time faculty position retroactive to the beginning of the
2015 academic year.
3. Make the Union whole.
4. Any other remedy the Arbitrator deems fit.
I have not been appointed to hear the Job Posting grievance.
At the request of the College, a teleconference was convened to hear and
determine the College’s request that I exercise my retained jurisdiction over the
Minutes of Settlement. The Employer is seeking clarification and an
interpretation of the Minutes of Settlement to provide direction with regard to their
relative positions concerning the Job Posting grievance. The context of this
request is set out in the Employer’s particulars:
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1. The parties met to hear a grievance on March 3, 2015. The grievance
was about staffing in the Natural Environment and Outdoor Studies
(NEOS) program.
2. At the time of this meeting, the College employed eight full-time faculty
members in the NEOS program. The complement included Mr. Jerry
Zuchlinski, who had not formally announced his retirement, but who
the parties understood planned to retire in the coming summer.
3. The parties settled. [see the Minutes of Settlement on pages 2 & 3
above]
4. As required by paragraph 2 of the agreement, the College posted for a
full time faculty position in NEOS in April.
5. As anticipated, Mr. Zuchlinski retired effective June 30th.
6. On July 8th the Union filed a new grievance that alleged the College
failed to post and hire a replacement for Mr. Zuchlinski. The attached
document marked “B” is an accurate copy of the new grievance.
7. The Union did not invite or engage in a discussion about Mr.
Zuchlinski’s retirement or staffing in the NEOS program before filing
the new grievance.
8. Mr. Zuchlinski’s retirement caused the complement in the NEOS
program to drop to seven. However, Ms. Elisa Muto responded to the
April posting, and the College hired her to work in the NEOS program
commencing August 17th, bringing the full-time complement in the
NEOS program to eight.
9. The Union referred the grievance to arbitration on August 13th.
The Submissions of the Parties
The Submissions of the College/Employer
It was asserted that the essence of the Minutes of Settlement is the recognition
and acceptance that the College would endeavor to staff the NEOS Program with
a minimum complement of eight full-time positions for the duration of the current
Collective Agreement and that any other staffing concerns of the Union would be
dealt with through the Article 7 process, rather than through grievance arbitration.
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The College is seeking a declaration that the March 3, 2015 Minutes of
Settlement preclude the Union from asserting (during the life of the current
Collective Agreement) that there is a vacancy arising out of work in the NEOS
Program as long as the complement of full-time faculty positions in the NEOS
Program meets the minimum complement of eight full-time positions.
The College submitted that Paragraph 8 of the Minutes of Settlement confers the
authority and the responsibility on this Arbitrator to enforce the terms of the
Agreement and to give effect to the parties’ mutual intentions. This was said to
be consistent with the decisions in Canadian General-Tower Ltd. v. U.R.W.,
Local 292, 12 L.A.C. (4th) 153 (Craven); and Dupont Canada Inc. and C.E.P.,
Local 28-0, 2001 CarswellOnt 10710, 66 C.L.A.S. 324 (Roach).
The Employer also placed a great deal of reliance on the decision of Arbitrator
Pamela Picher in Humber College Institute of Advanced Learning and
Technology and O.P.S.E.U. Local 562, (2013-0562-0005) dated February 7,
2014 which was said to involve a similar grievance and similar Minutes of
Settlement. It was submitted that this Picher decision gives the proper
prospective effect to an agreement that was structured very similarly to the
Minutes of Settlement under consideration in the case at hand.
The College clarified that it was not suggesting that the Union was precluded
from filing any staffing grievances. The College stressed that it simply wanted
effect to be given to the parties’ agreement that the minimum of eight full-time
positions in NEOS was the accepted complement for the life of the current
Collective Agreement, with its term being from September 1, 2014 - September
30, 2017. This was also said to be consistent with the contract’s “Article 2
Moratorium”.
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The Submissions of the Union
The Union stressed that the preamble of the original grievance and its terms
make it clear that it was filed to address the concern that the Employer was
giving preference to the hiring of partial load and sessional employees over full-
time faculty, in violation of Article 2. This was said to be completely different from
the Job Posting grievance filed in July 2015 alleging that the College had failed to
post a vacancy created by the retirement of Professor Zuchlinski, contrary to
Article 27.11A. The Union asserted that nothing in the Minutes of Settlement
precludes the Union from filing a “failure to post” vacancy.
The Union suggested that the only remaining jurisdiction for this Arbitrator arising
from the Minutes of Settlement is to say whether the Union is in breach of the
Agreement by filing a posting grievance or by not engaging in good faith
discussions pursuant to paragraph 5 of the Minutes. Further, it was said that
Article 7 is not designed to deal with the kinds of issues arising out of the Union’s
current dispute with the College. Consequently, the Union submitted that this
Arbitrator has no authority to make any ruling that would affect or determine the
outcome of the posting grievance. Reliance was placed on Ontario Power
Generation and Society of Energy Professionals, Decision of George
Surdykowski, dated July 29, 2013. The Union suggested that the Employer is
making a “premature” attempt to get rid of the Posting grievance before it can be
heard on its merits.
It was also stressed that the parties never intended the Minutes of Settl ement to
resolve any future posting obligations upon the Employer arising out of Professor
Zuchlinski’s retirement. It was pointed out that the parties explicitly dealt with the
position held by Terri Winter, but did not address Professor Zuchlinski’s pending
retirement in their Agreement even though they expected it to happen. Therefore,
it was submitted that nothing in the Minutes of Settlement can or should be
applied to affect the Union’s ability to grieve the failure to post a full-time position
that was vacated upon his retirement.
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Counsel for the Union sought to distinguish the case at hand from the Humber
College case, arguing that the latter dealt with vacancies arising after the period
contemplated by that agreement and that all those grievances dealt with Article 2
situations, whereas the Union’s new grievance in this case deals with a Job
Posting, Article 27.11A issue.
Therefore, the Union asserted that this Arbitrator has no jurisdiction arising from
the Minutes of Settlement that should have any effect or bearing on the Job
Positing grievance.
The Employer’s Reply Submissions
The Employer stressed that it is not asking this Arbitrator to take jurisdiction over
the Job Posting grievance or to preclude the Union from the ability to fi le such a
grievance. The Employer asserted that it is simply seeking the exercise of the
retained jurisdiction to clarify and “give effect” to the Minutes of Settlement by
making the requested declaration that is set out above. It was suggested that
this will assist the parties and enable them to consider its impact.
Further, the Employer asserted that the essence of the original Article 2
grievance and the newer Job Posting grievance are the same, that being the
Union’s complaint over the impact of retirements on the staffing of the NEOS
Program and whether there is sufficient work to justify the hiring of more full-time
positions. It was said, “To suggest otherwise is being too technical.” It was
pointed out that the original grievance makes reference to it being filed due to the
failure to replace retirees, which is exactly the same situation in the Union’s July
2015 grievance arising out of Professor Zuchlinski’s retirement.
The Decision
When an arbitrator retains jurisdiction over Minutes of Settlement, this is done to
ensure that the Minutes will take effect, be applied and be respected. The
retained jurisdiction allows the parties to return to the arbitrator who has
knowledge of their dispute in order to resolve any matters that arise with regard
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to the interpretation or application of their agreement. This can also involve
enforcement if and when the parties have agreed to that continuing oversight, as
was done in paragraph 8 of the Minutes in this case.
The issue of retained jurisdiction has been recognized to be an important, yet
limited, role. It is well summarized as follows:
…. it is well established that where an arbitrator has retained jurisdiction
to deal with any questions regarding the implementation of his or her
award the said arbitrator may reconvene the hearing to resolve the
disagreement when it is necessary. (1) to complete any aspect of the
award left unaddressed that is "to give the necessary directions to
effectuate the objects for which he or she is appointed."; (2) to clarify
certain aspects of the award relating directly to the circumstances of the
grievance which was before the arbitrator; and, (3) to correct errors of a
technical nature, or arising from accidental omissions as well as clerical
errors. [see Dupont Canada, supra, para. 9]
See also:
. . . .if the grievance settlement is to be enforced its terms must be
interpreted. If, as the company argues, the settlement is couched in
ambiguous language, then that ambiguity must be resolved so that the
real agreement can be given effect. In this regard there is a crucial
distinction to be drawn between second-guessing the settlement in light
of the original dispute, which would constitute unwonted arbitral
interference in the grievance procedure, and interpreting the terms of
settlement to give effect to the parties' mutual intention, which constitutes
the proper exercise of the arbitral jurisdiction to enforce private grievance
settlements. [see Canadian General Tower, supra, para. 8]
On the other hand, it is very clear that an arbitrator’s authority only extends to a
grievance s/he has been appointed to hear. There is no inherent jurisdiction over
the parties or a collective agreement. This was emphasized in the following
passage:
Arbitrators have no inherent jurisdiction to do what they perceive to be
“the right thing” with respect to grievances they have not specifically
been appointed to hear. An arbitrator has no general oversight or
supervisory jurisdiction over any collective agreement in this Province.
An arbitrator cannot wade into collective agreement territory unless and
until “invited” to do so by the parties or the Minister.
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Even if a union were to grieve a general collective agreement purpose
provision like Article 1 in this case, no arbitrator would have jurisdi ction to
deal with it in the absence of a consensual or Ministerial appointment,
whether or not such a grievance were one of several between the same
parties. It follows that an arbitrator cannot “take” jurisdiction over a
grievance he has not been appointed to arbitrate by purporting to
determine a non-existent general purpose provision grievance in aid of
seizing jurisdiction over that grievance, even if he is convinced it makes
sense to do so in the circumstances. [see Ontario Power Generation and
Society of Energy Professionals, supra, at para. 31]
In the case at hand, I have been asked by the College to exercise the retained
jurisdiction conferred on me by the parties’ Minutes of Settlement “with respect to
the implementation and enforcement of these Minutes.” This is different than the
situation in Humber College, supra, where Arbitrator Picher was called upon to
interpret the effect of an earlier settlement that had been reached by the parties
and to determine its effect on a subsequent grievance. She concluded that the
parties’ settlement had “prospective effect” and established how the parties
would deal with disputes about posting that arose after the filing of the original
grievance. These conclusions were reached after reviewing the precise details
of the Minutes of Settlement with regard to specified Departments and Schools in
the College that included the following terms:
The Union and the Grievor, OPSEU Local 562, agree to settle the
grievances . . . related to full-time faculty positions . . . subject to the
following conditions:
1. The College will post and endeavor to fill thirty-seven (37) full-time
positions for September 2012 and complete by January, 2013 as
follows: . . . .
2. Any faculty leaving the college between May 16th and May 31st
who are not identified in the addendum are to be replaced for
September, 2012.
3. Any faculty leaving the college between June 1, 2012 and June
30, 2012 who are not identified in the addendum are to be
replaced by January 2013.
4. The parties agree that no staff ing grievance will be filed prior to
March 1, 2013 in any School identified above. Other opportunities
for full-time positions will be reviewed as the needs arise.
5. The parties agree that this settlement constitutes a full and final
resolution of all issues raised in the grievances . . . Adjustments to
this agreement could be made through the CESC [College
Employment Stability Committee].
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6. Failing resolution at the CESC, the Union and the College agree
that any difference arising from the implementation or failure to
implement these terms will be subject to the regular grievance
procedure.
From these terms it can be seen that the Picher Award in Humber College was
not an exercise of retained jurisdiction. Instead it was an exercise in
interpretation of a settlement that had implications on the dispute the arbitrator
was called upon to decide. However, the award in Humber College is instructive
in that it looked at what the Settlement covered, to determine whether it only
applied to the original grievance filed or went beyond that (see p. 8). Therefore,
that award and the terms it interpreted are helpful in assisting with regard to the
implementation and enforcement of the Minutes of Settlement in the case at
hand.
Unlike the settlement in Humber College, the Sault College Minutes of
Settlement do not deal with what happens when someone retires and it does not
have an explicit promise to refrain from filing a staffing grievance. But similar to
the parties to the Sault College agreement, Humber College and OPSEU agreed
on a dispute resolution mechanism and agreed upon a minimum staffing level
that would be in place beyond the date of the document. Further, the Sault
College Minutes of Settlement have a preamble that refers to a “staffing
grievance” that is to be resolved. That grievance complained about the failure to
fill full-time positions vacated by “multiple retirements” and claimed “at least 8 full-
time professor positions.” The preamble also stated that the parties wished “to
settle all matters arising out of the grievance.”
It is undisputed that the pending retirement of Professor Zuchlinski was known to
the parties at the time the Minutes of Settlement were signed. While that
retirement was not dealt with in the Minutes of Settlement specifically, it must
also be noted that there was no agreement to either fill or leave vacant his
position when he left. Instead, there was a commitment to post a full-time
position by April 15, 2015 and a further agreement that the Department would
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“endeavor to maintain an eight position minimum complement” in the Department
for the duration of the Collective Agreement.
These factors lead to the following conclusions. First, the Sault College and
OPSEU Minutes of Settlement acknowledged that the College had filled two full-
time positions covered by the grievance after it had been filed (para. 1) and
before the hearing convened. Second, the College also agreed to post and try to
fill another full-time position by August 17, 2015 (para. 2). Third, they agreed to
post and endeavor to fill Professor Winter’s full-time position if she did not return
from her leave by a certain date (para. 4). Fulfilling these three terms would
result in a full-time complement of eight positions in the NEOS Program. Fourth,
the parties agreed that the College would “endeavor to maintain” a minimum
complement of eight full-time teaching positions in the NEOS department during
the life of the current Collective Agreement, that being until September 30, 2017
(para. 4). Further, the parties agreed that they would have “good faith”
discussions about staffing “as contemplated by Article 7 of the Collective
Agreement.”
These terms cannot be read without appreciating that the parties not only
resolved the specific terms of their February 2014 staffing grievance over full-
time positions in the NEOS Department, but they also agreed to accept a
minimum staffing complement for that Department for the rest of the life of the
current Collective Agreement and how to address other staffing matters should
they arise. The Union is correct in pointing out that the parties did not preclude
the Union from filing any staffing grievances in this Program, nor did they
preclude any Job Posting grievances. But at the same time, the Agreement must
be given meaning and effect. It is clear that the Union agreed to a minimum
staffing complement and agreed that if it had any disputes about staffing, it would
address those concerns through the Article 7 Local Union/College Committee.
That Committee deals with more than staff reductions. It is designed to deal with
the local application of the Collective Agreement, Article 2, staffing and/or any
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“procedures or conditions causing misunderstanding or grievances”.
7.02 It is agreed that matters to be the subject of discussion at meetings
include:
(i) the local application of this Agreement;
(ii) clarification of procedures or conditions causing misunderstanding or
grievances;
(iii) an internal complaint process to facilitate the resolution of employee
complaints that do not fall within the provisions of 11.01, 11.02, Article
32, Grievance and Arbitration Procedures, or Article 33, Expedited
Arbitration Process;
(iv) other matters which are mutually agreed upon;
(v) if requested by the Union Local, the rationale for a sessional
appointment by the College shall be the subject of discussion; and (7)
(vi) if requested by the Union Local, the College shall explain its rationale
for its application of Article 2, Staffing, or 27.05 (iii). In particular, it will
consider any representations which the Union Local may make with
respect to the assigning of work on a full-time or a sessional, partial-load
or part-time basis, and with respect to the feasibility of assigning work on
a full-time basis rather than on a sessional, partial-load or part-time
basis.
[emphasis added]
This language leaves broad scope for discussion about staffing concerns,
including whether there is sufficient work to warrant the posting of a full-time
position. Therefore it cannot be concluded that the Local College/Union
Committee operating under Article 7 would be an inappropriate forum to raise the
kind of issues that would prompt the Union to file a job posting grievance.
Further, having signed Minutes of Settlement promising to engage in good faith
discussions “about staffing” as “contemplated by Article 7”, it is ironic that the
Union now suggests that this venue is not appropriate.
The agreement to engage the Article 7 process for future staffing disputes is also
consistent with the notion that the parties intended to settle the specific grievance
that gave rise to the original hearing and to address how to deal with any future
dispute(s). It is true that a Job Posting Grievance under Article 27.11A is
different from an Article 2 grievance that would be filed to enforce the preference
for full-time hiring. However, the essence of both grievances is the question of
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whether there is sufficient work to warrant the filling of a full-time position.
Article 27.11A provides:
Notice will be posted in the College of all vacancies of full-time positions in
the bargaining unit.
Article 2 specifies how preference is to be given to the designation of full-time
positions rather than partial-load or sessional positions. As the parties know too
well, the arbitration cases dealing with Article 2 grievances often focus on the
issue of the quantity of the work or whether there is enough work to support a
full-time appointment. Therefore, one of the key questions in both an Article 2
and an Article 27.11A grievance would be whether a vacancy exists. Therefore,
there is a significant overlap between the crux of an Article 2 and an Article 27
grievance. It is also noted that the original grievance and the Job Posting
grievance were both triggered by retirements and the Union’s quest to protect
full-time positions. The Union did achieve a minimum complement. The
preamble to the parties’ Minutes of Settlement indicates that it is designed to
“settle matters arising out of the grievance.” Therefore, it must be concluded that
the Minutes of Settlement have prospective effect and not only settled the
situation in place on the date of signing, but also created obligations for the
parties with regard to minimum staffing and dispute resolution mechanisms for
the life of the Collective Agreement.
As the Union properly acknowledged in its submissions, my retained jurisdiction
gives the authorization to determine whether the Minutes of Settlement have
been violated and to assist with its implementation. It does not give me any
authority over the Job Posting grievance.
Therefore, having regard to the conclusions reached above, with the authority I
do have, it must be declared:
1. During the life of the current Collective Agreement, the Minutes of
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Settlement preclude the Union from asserting anything that would be
inconsistent with the agreement that the College must endeavor to
maintain an eight position minimum full-time complement in the NEOS
Department.
2. A party would be in breach of the Minutes of Settlement if it failed to
engage in “good faith discussions about staffing as contemplated by
Article 7” before filing a grievance concerning a staffing concern.
Finally, I am compelled to remind the parties of their Letter of Understanding
dated September 23, 2014, regarding their 2014-2017 Collective Agreement:
“No grievances alleging a violation of Article 2.02 and 2.03A shall be filed on
or after September 1, 2014.”
It remains up to the arbitrator appointed to hear the July 8, 2015 Job Posting
grievance to decide whether the College is required to post and hire a full -
time replacement as a result of Professor Zuchlinski’s retirement if the
College has in fact maintained the promised minimum complement of eight
full-time positions.
I remain seized with all remaining matters that arise only out of the
implementation and enforcement of the March 3, 2015 Minutes of Settlement.
Dated at Toronto this 13th day of October, 2015
____________________________
Paula Knopf - Arbitrator