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HomeMy WebLinkAboutHelps/McKeracher Group 04-10-20 IN THE MATTER OF AN ARBITRATION BETWEEN: DURHAM COLLEGE (the "college") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "union") AND IN THE MATTER OF OPSEU Grievance No. 2004-0353-0005 and 2004- 0354 -0012. BOARD OF ARBITRATION: D.D. Carter, Chair R. J. O~Connor, College Nominee M. Sullivan, Union Nominee APPEARANCES FOR THE UNION: H. Cook, Grievance Officer J. Bisset, Chief Steward Local 354 J. M. White, Local 354 J. Helps, Local 353 R. Memisz, Local 353 APPEAI~NCES FOR THE EMPLOYER: P. J. Thorup, Counsel R. Aprile, Vice-President, Facilities and Ancillary Services A hearing of this matter was held at Toronto, Ontario, on October 7, 2004. AWARD These two grievances, one from the support bargaining unit and the other from the academic bargaining unit, allege that the college was in violation of both past practices and the collective agreement by increasing the fees that it charged bargaining unit members for parking at the college. The grievances request a direction that there be no increase in parking fees for bargaining unit members above the increase from the academic year 2002-2003 and a direction that a complete investigation of all college financial records and transactions be conducted by an independent auditor. At the outset of the hearing, however, the college raised a preliminary objection that the grievances, because they did not relate to a violation of the collective agreement, were not arbitrable. It is necessary to set out the facts underlying the grievances before dealing with this preliminary objection. It was not disputed that the arrival of the University of Ontario Institute of Technology at the college's Oshawa campus caused a significant alteration of the parking facilities at that campus. During the academic year 2002 -2003~ the college eliminated 1000 parking spaces that had previously existed and replaced them with 2000 spaces to serve both the college and the new university. At about the same time the college's parking facilities were upgraded through paving, the provision of better lighting, and the provision of improved security. These changes, however, carried with them significantly higher parking fees for the users. Many of these users were bargaining unit members who had no other reasonable alternative than to commute to their work by car and to use the college's parking facilities. In the academic year 2002-2003 the annual parking fee at the Oshawa campus was $140 per year; in the academic year 2003-2004 that fee increased to $192; and in the current academic year it increased to $275. Future increases in the parking fee are anticipated since the college is still not recovering the full cost of providing parking at the campus. Of particular concern to the union was the increase in costs associated with the arrival of the University of Ontario Institute of Technology. A major component of current parking costs is amortization of the construction costs of $7 million that relate primarily to the alteration of the parking facilities required because of the university's presence on the Oshawa campus. These amortization costs represented $517~202 of the $1,101,781 total annual cost of providing the parking facilities. The employer submitted that the fee increases were intended to recover the costs associated with providing its parking facilities and that at this point it had not even reached the point of full cost recovery. In light of these facts it argued that the parking fee could not be regarded in any way as an indirect tax upon the wages of bargaining unit members. The employer further argued that, since all users paid the same fee for parking, its actions in no way discriminated against bargaining unit members. It followed, therefore, that its actions clearly fell within the managerial discretion provided under article 6 of the collective agreement and that the two grievances were not arbitrable. The union argued that the members of the bargaining unit were paying costs associated with the arrival of the University of Ontario Institute of Technology. If the uniYersity had not come to the Oshawa campus, there would have been no need to alter the existing parking facilities and significant construction costs would not have been incurred. These fee increases, moreover, had had a substantial impact on bargaining unit members who had no alternative other than to commute to work by car and to use the college parking facilities. In the circumstances, the union argued, this board had jurisdiction to review the exercise of the college's managerial discretion under article 6 of the collective agreement. That article, titled '~Management Function" reads: 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, layoff, 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 fights 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. The union's argument in this case would have considerable force if the college have been using its parking facilities to generate revenue above and beyond the costs of providing the facility or had discriminated against bargaining unit members by imposing upon them a higher fee than that charged to other users. On the facts befbre this board, however, it is clear that the parking fees imposed so far have fallen short of even recovering the full cost of providing the parking facilities. It is also clear that bargaining unit members pay exactly the same fees as other users of the parking facilities. There is no doubt that a substantial component of the recent fee increases relate to the alteration of parking facilities that resulted frOm the arrival of the University of Ontario Institute of Technology at the college's Oshawa campus. A reading of article 6 of the collective agreement, however, reveals that it is well within the managerial discretion of the college to make new institutional arrangements for bona fide educational reasons. There was no argument that the establishment of the new university at the Oshawa campus of the college was something other than a bona fide educational initiative. Nevertheless, it is quite understandable that bargaining unit members would be upset over what was clearly a substantial increase in their cost to commuting to work. The fee increases, however, were not a revenue grab but an attempt to recover the cost of providing parking facilities from those who used these facilities. This cost recovery, moreover, was imposed on all users of the parking facility and not just confined to bargaining unit members. Therefore, it cannot be said that the fees constituted a tax on the wages of bargaining unit members or constituted improper discrimination by requiring bargaining unit members to bear an unfair share of the cost of the provision of parking facilties. In the circumstances the board concludes that there is no possibility that the college's action could constitute a breach of article 6 or a breach of any other provision of the collective agreement. The board, therefore, has no choice but to find that these two grievances are not arbitrable. Dated at Kingston, Ontario, this 20th day of October, 2004. D. D. Carter, Chair ,R. J. O'Connor" I concur R.J. O'Connor, College Nominee "M. Sullivan" I concur M. Sullivan, Union Nominee