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HomeMy WebLinkAboutBoyle 92-06-25IN THE MATTER OF AN ARBITRATION 91D914 BETWEEN: CB3tT L.415 ONTARIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF ALGONQUIN COLLEGE (herehn~fter called the "College") ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") GRIEVANCE OF MARY ANN BOYLE (hereinafter called the "Grievor") BOARD OF ARBITRATION: Richard H. McLaren J.R. Dalzell, College Nominee Ron Cochrane, Union Nominee COUNSEL FOR THE COLLEGE: Paul Jarvis COUNSEL FOR THE UNION: Michael McFadden A HEARING IN RELATION TO THIS MATTER WAS HELD AT OTTAWA, ONTARIO ON APRIL 1, 1992, AWARD Ms. Mary Ann Boyle has been an instructor of English in the School of Business at the College since December 19, 1976. For the past eleven of those years she has worked in the capacity of a partial-load instructor. She was advised by a memorandum dated March 12, 1992 from the College that according to Appendix 2, Paragraph 3 in the collective agreement, as a partial-load Professor she had accumulated a further ten months of on-the-job experience entitling her to one further year of service. As a consequence she progressed as of March 20, 1992 to step 13 on the grid which translates into an hourly rate of $71.26. She was at that time the highest paid teacher within the English Department at the School of Business and also the individual with the highest seniority. The College served the necessary documents to bring the contractual relationship to an end under the provisions of Appendix 2. The explanation provided to Ms. Boyle in a letter dated July 5, 1991 (Exh/bit 3), indicated that the decision not to renew her partial-load contract was caused by financial constraints and was no reflection on her teaching ability. At the hearing it was agreed that. the decision of the College was based purely on the fact that. her hourly rate was more than the budget prov/ded for. In the fall term of 1991, during which Ms. Boyle did not work as a partial-load instructor, a Mr. Nicholas Strachan was retained as a partial-load teacher in the English department at an hourly rate of $45.00/tu'. It was agreed by Counsel that Ms. Boyle, while not being the instructor who had taught the particular students which Mr. Strachan had taught in the fall of 1991, was completely capable of teaching the same group of students. It was candidly admitted by the College that the hourly rate of Ms. Boyle was the reason for her not being re-employed in the fall of 1991 as a partial-load instructor. In September 1991 a grievance was filed by MS. Boyle complaining of the decision of the College. It reads as follows: "After almost fifteen years as a teacher of English at Algonquin, at least eleven of them in the partial-load category, I have been informed by management that it can no longer afford my services at that level and that it offers me a sessional position instead. I have been assured that my competence is not in question and that only the pay rate is a problem. In the School of Business, available teaching is being packaged into part-time and sessional segments while partial-load positions above an arbitrary pay level are being eliminated. In asking me to accept a sessional position, management is contravening the provi~ions contained in Appendix IH which stipulates that ongoing positions will be filled by members of the bargaining unit. Furthermore, management is acting in a manner contrary to the principle of Article 28 regarding the enhancement of employment stability. My latter-day pay rate is attributable to: (a) my qualifications and experience. 0a) my membership in the Union, whose good offices recently negotiated increased rates for partial-load teachers. It seems unjust that these two factors should render me unlikely to be rehired at my accustomed level. (Exhibit 1) At the hearing the remedy requested was essentially that of the grievance which was that she be continued as a partial-load instructor in the College. On the basis of the foregoing facts it was agreed by Counsel for the parties that the matter could be argued without the calling of any viva voce evidence. It was further agreed by Counsel for the College that, while the argument of the College was a preliminary objection to the jurisdiction of the Board to hear the grievance, that argument, was inex-tricably intertwined with the merits of the case. As such, the proper way to proceed was to reserve on the preliminary issue, hear the entire arguraent and make this award. In support of its position it was argued on behalf of the Union that Appendix II of the collective agreement in section I (b) provides the fom-~ula for the setting of rates which had resulted in the contract rate of $71.26 as of March 1, 1991. The basis on which that rate was set was through the use of the seniority provisions in the collective agreement. It was further submitted that section 2 of the Appendix, again on the basis of seniority, provides for protection of a partial-load employee when a full-time employee is exercising the bumping rights of that section. Therefore, partial-load employees accumulate seniority for purposes of calculation of wages and also for protection from the bumping process contained in the collective agreement at Article 8. It was submitted that if the College needed to meet financial constraints there was a process for achieving that through the use of Article 8. It was further submitted that this collective agreement, through the use of seniority, provides rights to the Grievor. Therefore, when the Grievor is terminated while Mr. Strachan is retained, merely because he is paid a lower wage, the College is violating the concept of seniority which is designed to protect otherwise vulnerable emPloyees. Discontinuing Ms. Boyle's employment relationship with the College in this way, was an improper exercise of the College's discretion. It was submitted that there is an argument by analogy to the probationary employees and the jurisprudence which has been developed under this collective agreement by Boards of Arbitration with respect to the standard for the termination of such an employee. It was submitted that in exercising its discretion the College must act in good faith and that they have, in viewing the entire transaction, acted in bad faith. The whole course of conduct is to be examined, as was found in the George Brown decision. In that case, the employer was said to be acting without sufficient good faith, thereby establishing a lack of good faith. On that basis, the College did not exercise its discretion properly in terminating the Grievor. In support of its position, the Union made reference to the decision of Re St. Lawrence College, 32 L.A.C. (3d) 322 (Brent, 1987), together with the dissent of the Union Nominee, who is the same Nomince in this proceeding. That decisi.on was quashed at the Divisional Court and a transcript with the reasons was filed with the Board as dated February 17, 1989. The Divisional Court relied on the Union Nominee's dissent. In further support of its position reference was also made to George Brown College an unreported decision by Arbitrator Mitchnick dated September 24, 1991, involving a Mr. Trevor Ellis. Mr. Ellis was a probationary employee and was released during the probationary period. The Board concluded that a test for bad faith was appropriate under the circumstances. However, the College -5- attempted to fulfill its obligations and consequently, was found to be acting in good faith. In support of its position it was argued on behalf of the College that the collective agreement divides employees into a number of classes, one of which is partial-load professors whose contractual rights are those found in Appendix II, and sessional employees whose rights are found in Appendix III. It was submitted that there is no right to be retained in employment and that the only olibgation was to provide thirty days notice on release. That obligation was complied with in this case and the College maintained its objection to the grievance from the outset. As a consequence, the decision of the College became one of an exercise in management rights within Article 7.01 (c). It was submitted that this was a release, not a dismissal. Therefore, it is not appropriate to bring in by analogy the case law surrounding probationary employees and their relationship to the College under the collective agreement. On this basis there has been no violation of the collective agreement. The matter is not arbitral since it is within the discretion of the College to release such employees, and in so doing, the College has properly exercised its discretion, in the alternative;it was submitted that if there were a bad faith standard to be applied to the College in connection with the release of a partial-load employee, that standard would be whether the College's action resulted from au illegal act by the College. There is no evidence of such an illegal act in this instance. There is no positive obligation upon the College to have acted in a different way. In support of the position of the College, reference was made to the decision in Re Lambton College, an unreported decision of Arbitrator Palmer dated July 14, 1988 with the dissent of Arbitrator Robinson and a grievance involving a Mr. D. Mcintyre. Reference was also made to a further decision between the parties in Centennial College, an unreported decision by Arbitrator Samuels dated December 8, 1988. The relevant provisions of the collective agreement are as follow~: Article 7 MANAGEMENT FUNCTIONS 7.01 It is the exclusive function of the Colleges to: (c) to manage the College and. wilhout restricting the general- ity of ~he foregoing, lhe right to plan. direct and control operations, facilities, programs, courses, systems and pro- cedures, direct its personnel, delermine complement, orga- nization, methods and Ihe number, location and classifica- tion of personnel required from time Io time. the number and Iocalion of campuses and tacilities, servmes Io be pedormed, the scheduling of assignments and work. the extension, limitation, curtailment, or cessation of opera- tions and all other righls and responsibililies nol specilically modified elsewhere in this Agreement. 7.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions ot lhis Agreement. Article 8 SENIORITY 8.05 When Ihe College decides to lay off or to reduce the number of full-time employees who have completed the probationary period or Iransler involuntarily full-time employees who have completed the probationary period to another position from that previously held as a result ol such lay-ofl or reduction ol employees, the following place- ment and displacement provisions shall apply to full-time employees so alfected. Where an employee has the competence, skill, and experience Io fulfill the requirements of the full-time position con- cerned, seniority shall apply consistent with the following: (d) failing placement under paragraph (c) above, s[Jch em- ployee shall be reassigned to displace two partial-load employees (as referred to in Appendix II) provided that: ti) the displacing employee has the competence, skill, and experience to fulfill Ihe requirements of the posilion con- carried; and -7- (ii) each et the partial-load employees being displaced has lesser months of servica with the College as determined in Appendix II than such displacing employee's months of seniority; and (iii) il is understood that the College retains the right to assign additional work to the employee, where warranted, subject to the limits prescribed by Article 4. (e) (i} failing placement under paragraph 8.05(d) above or where the employee has waived in writing the right in paragraph (d) above, such employee shall be reassigned to displace one partial- load employee (as referred to in Appendix II) and one or more part- time employees whose assigned courses are as described m para- graph 8.05 (e) (ii) below, provided that: (a) the same as, or (b) essentially the same as, or (c) pre-requisite courses to those taught by the partial-load employee concerned. (e} (iii) such employee shaN have the layoff notice extended until completion el the assignment so created, and shall maintain current salary and benefits for the duration of that assignment. (e) (iv) upon completion of the assignment so created, or as mutually agreed between the College and the employee, such em- ployee shall be reassigned within the College to a vacant full-time position if the employee has the competence, skill, and experience to perform Ihe requirements et a vacanl full-lime position. (e) (v) failing placement under paragraph 8.05(e) (iv) above. such employee shall be laid off wilhout further notice upon completion of the partial-load assignment. (f) (i) failing placement under paragraph 8.05(e) above or where lhe employee has waived in writing the right in paragraph (e) above, such employee shall be reassigned to displace one partial-load em- ployee (as referred to in Appendix Il) and engage in approved retrain- ing activities such that the employee retains current salary and be- nefits for the durahon of the partial-load assignment provided that: (a) the displacing employee has lhe compelence, skill and experience to fulfill the requirements of the position con- cerned; and (b) the partial-load employee being displaced has lesser months of service wilh Ihe College as delermined in Appen- dix I1 than such displacing employee's months of seniorily. (f) (ii) such employee shall have the layoff notice extended until completion ol the part~al-load employee's assignment, and shall main- tain current salary and benefits for the duration of the partial-load assignment. (f) (iii) upon completion of the padial-load assignment, or as mutually agreed between the College and the employee, such em- ployee shall be reassigned wilhin Ihe College Io a vacanl full-time posilion if the employee has the competence, skill and experience Io perform the requirements of a vacant full-time posilion. (f) (iv) failing placement under 8.05(I) (iii) above, such em- ployee shall be laid oil without further nolice upon completion of Ihe partial*load assignmenl. _. 8.07 (a) In January el each year, Ihe College shall prepare and post lisls as follows: (i) a seniority Iisi el nil regular full.time employees showing lhe employee's name. classilicalion, division or deparl- menl, and seniorily as delermined pursuanl Io Ibis Arlicle. (ii) a Iisi of all probalionary employees showing Ihe em- ployee's name, division or deparlmenl, date of hire, and dale el completion el Ihe probationary period. (iii) a seniority list of all parlial-load employees employed since the previous January showing Ihe employee's name, divi- sion or deparlmenI, and accumulated service Io dale. · C;uch lisls shall also be senl Io lhe Union Local President. 8.08 (b) If the grievance is processed through Step 2, the wrillen referral lo arbitration in Article 1 t .03 shall specity, Irom the positions originally designaled itl (a) above, two lull-lime positions, or positions occupied by Iwo or more partial-load or part-lime employees (the sum of whose duties will Iorm one full-time position), who shall therealter be the subject matter el the grievance and arbilration. The griever shall be entilled to arbitrale the grievance therealler under only one et sub-paragraphs (a), (b), (c), (d), (e), (t),(g) or (h) el Arhcle 8.05. 8.15 (b) During lhe last week el September, January and May Ihe College shall hOlily Ihe Local Presidenl el all personnel covered by Ihe Agreement hired or terminated since the last notification, Iogether wilh Ihe classification, Iocalion and Division or Department concerned. Al such limes, the College shall also include nolificalion el all hirings of personnel assigned to leach credit courses including, i~'~ padict,lar, sessional appointments. APPENDIX II PARTIAL-LOAD EMPLOYEES 1. (a) As referred to in Article 3.03 (2) of the Agreemenl, a partial-load employee is defir~ed as a leacher who teaches more Ihan six (6) and up to and including twelve (12) hours per week on a regular basis. (b) A parlial-load employee shall riel receive salary, vacalions, holidays or Iringe benefits (e'xcept for coverage el Workers' Com- pensation and Liabilily insurance) bul shall be paid for the peHorm- ance et each leaching hob. Jr at an hourly rule calculated as follows: Equivalenl grid salary 52 weeks X 18 or 20 TCH as appropriate "Equivalent grid salary" means the annual salary for a Prolessor or Inslruclor, as appropriale, calculated ir'~ accordance with Ihe appropri- ate qualiticalior]s and experience under Appendix I. 'It is understood that some varialion el Ibis formula will be required to lake into accounl the results of lhe deliberations of lhe task force and/or arbitralion board concerning the "post-secondary/non-post- secondary" issue, reterred to in a letler nf understanding altached to this Agreement on page 90. 2. Il is agreed that Adicle 8 has no applicalion to padial-load teachers except as relerred to in Article 8.05 (d), (e), (f), Article 8.07 (a), Adicle 8.08 (b) and Adicle 8.15 (b). Such partial-load teachers may be released upon thidy (30) days' wrilten notice and shall resign by giving thirty (30) days' written notice. 3. For the purpose of delermining the service of a partial-load teacher under Adicle 8.05 (d), (e), (I) and 8.08 (b) and tot the purpose of determining progression through the grid 10 months el on-the-job experience will entitle the employee to one year el service and to progress one step on Ihe grid. On-the-job experience will be calc~.,lated as follows: A partial- load leacher will be entilled to credil for service from Seplember 1, 1971 (but not earlier) on the basis el one-hall (1/2) monlh's credit lot each full month of service up to January 1, 1977 and thereafter on the basis of one-half (1/2) month's credil tot each calendar month in which the employee leaches thirty (30) hours or more. 4. A padial-load employee who completes twelve (12) months of employment wilh the College will be entilled to four percent (4%) el earnings in lieu of vacation for work performed as a partial-load employee after September I, 1981. 5. A padial-load employee shall pay dues in accordance with Article 12. 6. The College will give preterence to the designalion el full- time positions as regular ralher than partial-load teaching posilions subject to such operational requirements as Ihe q~.,ality of the prog- rams, altainment of the program objectives, lhe need lot special qualifications and the markel acceplabilily of Ihe programs Io em- ployers, students, and the community. The real complaint of Ms. Boyle in this case is that she had been of long service as a partial-load instructor and she was released under Appendix II while another individual teaching within the same department and in the same school was retained. This action was taken for purely financial considerations as evidenced by the fact that the replacement employee was earning $26.00/hr less than she was. However, there are no bumping rights for partial-load employees so this matter cannot be addressed in that fashion. As a consequence the Union is left with asserting that there is some standard of review which must be met for the use of partial-load employees. Appendix II contains the provisions of the collective agreement which apply directly to partial-load employees. Appendix I incorporates certain other provisions of the collective agreement and indicates that other articles such as Article 8 have no application unless they are specifically referred to in the Appendix. ' Appendix II indicates that a part. iai-load teacher may be released upon thirty days written notice and shall resign by giving thirty days written notice. This portion of the Appendix limits the management's right contained in Article 7.01 to manage the College and to "plan, direct and control operations.., direct its personnel, determine complement.., the extension, limitation, curtailment, or cessation of operations or all the other rights and responsibilities not specifically modified elsewhere in this Agreement". On the basis of Article 7.01, together with the limitation on the exercise of those rights by paragraph two of Appendix II, the College released Ms. Boyle from the partial-load contract. The distinction between the release of the partial-load employee and a dismissal was explored in the decision in Re Lambton College, supra. In that decision it was found that there was a distinction between employees who are released under'contractual arrangement of partial-load and employees who would be dismissed. The Board concluded that a partial-load employee cannot grieve a loss of employment. That conclusion was based on a reading of paragraph two of Appendix II. All that is required to release a partial-load employee is to give the notice required in the paragraph. In Re Lambton College, the College indicated that there was poor work performance on the part of the released individual. However, Arbitrator Palmer refused to inquire into the College's reasons for acting. In so doing, he expressed the view that the admission by the College that poor work performance was the reason for the employee release did not make the otherwise non-grievable release grievable. The probationary employee lacks contractual rights, and this fact is not altered by the College's actions. Arbitrator Palmer drew a distinction between the concept of release, which is used for probationary employees under the collective agreement, and the concept of discharge, which is used for those same employees who have completed the probationary period, and as a result become £ull-tfrne employees who enjoy the protection measures under the collective agreement. It is on that basis that this present argument is put to this Board of Arbitration, and that, by analogy, even though the collective agreement is silent, there ought to be a standard of review of the management discretion. The issue of management discretion and its uae has been the subject of much discussion in the arbitral jurisprudence. The jurisp~ence has read into collective agreements an obligation on the part of management to act in good faith in dismi-~sing a probationary employee. The Municipality of Metropolitan Toronto and the Canadian Union of Public Employees, Local 43, in a Divisional Court decision in July of 1981, established a standard that a Union could grieve the dismissal of a probationary employee if the action of the Employer was taken in bad faith in the sense that the decision was motivated by unlawful considerations or resulted from management actions which precluded the probationary employee from doing their best. This approach has been adopted in respect of probationary employees under this collective agreement. It has become part of the framework of the jurisprudence which is applied with respect to probationary employees. This Board of Arbitration is not willing to extend that concept in the context of partial-load employees because of the very different nature of the contractual relationship which these individt~_~!s enjoy. A probationary employee is one who has the ability to become a full-time employee. There are a series of contractual rights surrounding probationary employees and their movement from probationary status to full-time status. In dealing with another category of employees, that of the sessional employees, Appendix III provides that under certain circumstances they can become probationary employees. The partial-load employees do not even have this ability to become, through longevity, a probationary employee. That is one of the distinctions between the partial-load and the sessional employee. Indeed, this particular in~'vidual bas been a partial-load employee of the College for the past eleven years. In this situation there is not a sufficient contractual nexus to allow the development of the jurisprudential theory surrounding a decision of a college to bring a probationary employee's employment to an. end. There has been some further development of that standard in the St. Lawrence decision which was reviewed by the Divisional Court and put before the Board. However, whatever the precise formulation of standards might be at the present time, they are not ones which might be moved over and applied by analogy to the release of a partial-load professor. The rights of the partial-load (.;mployee in connection with the discontinuance of the contractual arrangement is clearly set out in paragraph 2 of Appendix II as being the right one to be released upon 30 days written notice. That is what has occurred in this case. The College had the management right to so act under Article 7.01 (c). The reasons for so acting are not reviewable when there is no contractual nexus upon which to move to some review even on the narrow standard of bad faith. Therefore, while this matter is extremely unfortunate in that this individual has been allowed to work for such a lengthy period of time as a partial-load employee, there is no ability for this employee to have displaced some other employee in the same department who was working and doing similar teaching. It is not a matter which this Board of Arbitration can remedy without contractual lanaguage which would allow it to intervene and evaluate the decision of the College or determine that there were bumping rights in favour of Ma. Boyle. Therefore, ou the basis of all the foregoing reasorm, this Board has no jurisdiction to entertain the grievance and find a violation of a provision of the collective agreement for which a remedy could then be ordered. In the absence of jurisdiction to have heard and determine the grievance, it must be concluded that the grievance be dismissed. It is so ordered. DATED AT LONDON, ONTAP.IO THIS 25th DAY OF ~1~, 1992. JUNE Richard H. McLaxen Chairman I J.P.. Dalzell, College I ~d~sent Siqned "Ron Cochrane" See Attached Dissent P.. Cochrane, Union Nominee 2536W DISSENT OF UNION NOMINEE My problem with the draft is focused on the fact that your award would give all the colleges in the system the ability to trim their rosters by releasing the highest paid faculty who cost the most money. In the'collective bargaining process, the parties are required to bargain in good faith. .In this case, the parties were the Council of Regents and OPSEU. They bargained a rate of pay for employees such as Mrs. Boyle and now the Employer, a party to this agreement,' is saying that rate was too high and it has no · intention of paying that rate. ItS solution is to invoke the 30 days' notice clause, release the most senior employee, who happens to be the highest paid, and boldly tell us there is nothing we can do about it. I don't agree. The good faith the parties extended in reaching that rate of pay at the bargaining table must be carried forward when ~he agreement is interpreted. Otherwise the legal requirement of good faith bargaining is emptied of all meaning. In effect, the college is saying: We don't care what rate you have negotiated for 9eople like Mrs. Boyle; if it's too high, she's fired. The only way to avoid this conduct is to interpret the 30 days' notice clause, as other than an unfettered right clause. The test should be a bad faith test. My concern is that the majority decision will open the door to all colleges to ignore what has been negotiated in good faith and terminate the highest paid, most experienced staff. R. A. Cochran~.