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HomeMy WebLinkAboutUnion 04-05-07 IN THE MATTER OF AN ARBITRATION BETWEEN: ST, LAWRENCE CAAT - ACADEMIC (the 'College') - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the 'Union") AND IN THE MA1-TER OF UNION GRIEVANCE Re: Job Posting OPSEU Grievance No. 2002-417-0022 INTERIM AWAR~ (With complete reasons to follow) BOARD OF ARBITRATION Paula Knopf, Chair John Podmore, College Nominee Ronald Kelly, Union Nominee APPEARANCES For the College J. Lynn Thomson, Counsel Cindy Bleakney, Human Resources Consultant Amanda Holmes, Student For the Union Susan Ballentyne, Counsel Maq/Ann White, Chief Steward The healing in this matter took place in Kingston, Ontario on October 8, 3t and December t9, 2003; March 26 and May $, 2004 This case involves a Union Grievance concerning the College's failure to post a number of full-time teaching posi'iions. The Union is alleging that the College failed to abide by a Local Agre,ement dated April 2, 2001 regarding the Voluntary Leave Incentive Plan (hereinafter referred to as the Agreement). The College asserts that its actions complied with the letter and spidt of the Agreement. At the outset of proceedings, the parties asked this Board to consider and rule upon the meaning of the language in the Agreement. This was necessary in order to determine what, if any authority the Board of Arbitration would have in situations where the parties disagreed about whether Voluntary Retirees' teaching positions had to be posted pursuant to the agreement. At the dose of submissions on IVlay 5, 2004, the Board of Arbitration promised the parties a 'bottom line' ruling on the preliminary matter so that they would be able to determine how to utilize the next scheduled hearing date of June 11, 2004. Accordingly, the following decision is issued to enable the parties to make the optimal use of the next bewaring date. A full decision will follow shortly that will outline the e~idence, the parties submissions and the full rational for this Interim Award. The cdtical provisions in the Agreement are: In an effort to deliver a Voluntary Leave Incentive Plan that would be Beneficial to the OrganizalJon, St. Lawrence College (the College) and Union Local 417 (the Union) ag,'ee to the following: a) That retired positions for P~rs can be back-filled by the College for a period of not more than, twelve months with the use of sessional appointments. b) That the College provides a guarantee that the retired positions will be filled unless a Committee comprised of the College President, the c) College Corporate Vice-President, the Union President and the Union Chief Steward mutually agree otherwise following the normal UCC and CESC processes. d) The College will'track the retired positions and will provide this information to the Union at the beginning of every semester. The fundamental decision that must be made at this preliminary stage of the proceedings is what. if any jurisdiction this board of Arbitration has in the event that the parties do not agree after the process in Paragraph B of the Agreement has been undertaken. The determination of that question revolves around the meaning of the words in the Agreement. it is the conclusion of this Board of Arbitration that the words 'the College provides a guarantee that the retired positions will be filled" must be given a meaning. In particular, the word 'guarantee' is significant. The College has provided a guarantee to fill each Voluntary Retirement position. However, the parties have also (~affed a review process into this Agreement to protect the College in situations where no work remains to be done, such as when a program has been suspended or cancelled or when a department has bcc,-t dosed. Accordingly, the Agreement contains a review process, mandating full disclosure to the Union. This disclosure would include the information gained from the College's 'tracking" of the retired positions pursuant to Paragraph C of the Agreement. This disclosure would form the basis of the analysis of the situation by the four Gommittee members following the normal' UCC and CF_SC processes. None of this review would exist if an absolute guarantee had been created by the Agreement. The Agreement is s~ilent about what happens when the Committee is unable to reach a c=onsensus. If the Union's argument prevails, then the position would have to be posted immediately, even if no work exists. If the College's argument prevails, then every position that remains in dispute after the Committee process is complete would be subject to review by a Board of ,~¢bitration in much the same way as it would deal with grievances under Article 2 of the Collective Agreement. It is asking too much from the evidence and the language of the Agreement to conclude that a Voluntary Retiree's position must be posted if no work exists after it has been backfilled for the twelve months contemplated by the Agreement. The evidence reveals that no one intended that a retiree's position should be posted if no work exists. Further, it is clear that no absolute guarantee was contemplated because the Committee was empowered to review and analyze the circumstances. However, it is also asking too 'much to conclude that the parties intended a Board of Arbitration to be able to review all the disputed positions and read out the word ~guarantee' from the Agreement. Therefore, this Board of Arbitration has concluded that the Agreement neither grants an abs~31ute guarantee that Voluntary Retiree positions will be filled nor does it 13rovide that the Union has reserved an unfettered right to withhold its agreement at the Committee stage. What the Agreement does is to create an onus on the College to satisfy the Union that no work load exists after the Voluntary Retirement. If the Union is not satisfied, it can withhold agreement at the Committee stage pursuant to Paragraph B of the Agreenlent. However, the Union cannot effectively hold a veto power over the Committee by acting in bad faith. Therefore, the withholding of the Union's agreement is subject to arbitral review if it is withheld in bad faith.' The effect of the Agreement is that the parties are obligated to engage the processes set out in Paragraph B in good faith, if agreemerlt is reached that no work load exist:s, then the Voluntary Retiree's position need not be posted. If no consen;ilus is reached, the parties must then be in a position to be able to proceed to arbitration expeditiously for a review of the Situation to resolve the matter. As a result, we declare thlat Paragraph B) of the Agreement does not constitute an absolute guarantee that Voluntary Retiree positions will be filled regardless of the circumstances. This Board of Arbitration is unable to determine at this stage of the proceedings if there has been a violation of the Agreement by the College because we have received no evidence regarding the circumstances. We are seized with the grievances alleging that the positions should have bc=.3 posted pursuant to the Agreement. Therefore, to facilitate the resolution of this dispute, we are invoking our authority to make interim orders concerning procedural matters under s. 48 (i)'of the Labour Relations Act, and ordering as follows: 1. The College is to provide to the'Union, on or before May 14, 2004 details and part. ic~Jiars of the facts the Employer is relying upon to establish that the workload performed by the Voluntaq/ Retiree positions co,~en~ by the Agreement at the time of retirement no longer [existed. 2. The Union ~nll piovide to the College, on or before May 28, 2004 details and particulars of the facts it relies upon to assert the claim that the workload did exist at the time. 3. The timelines set out above can be ~n~d by the mutual agreement of the pa~ee. 4. This Board of Arbitration has the authority to review whether the College has fulfilled its onus of satisfying the Union that no workload existed and whether the Union was acting in good faith in withholding agreerflem at the Committee stage. 5. In the arbitral review of this process, the evidence of the parties will be confined to the facts disclosed to each other in the exchange outlined in paragraphs 1 and 2 of this Interim Award. 6. This matter will proceed to a hearing of the merits on June 11, 2004 as sched:u[ed 13reviously, and/or, on such. further dates that can be arranged at the request of .the parties. As promised above, details of the ,sviclence, arguments and rational that form the basis of this Interim Award will be issued to the parties shortly. Dated at Toronto this 7a day of May, 2004 Paula Knopf- Chair John Podmore Employer Nominee Ronatd Kelly Union Nominee