HomeMy WebLinkAboutMueck 96-12-12 BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
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CANADORE COLLEGE
Grievance of Frank Mueck - OPSEU File No. 96D327
Before: R.O. MacDowell - Chairman
John McManus - Union Nominee
Robert Gallivan - College Nominee
Appearances:
For the Union: Nelson Roland, Counsel
For the College: Paul Jarvis, Counsel
John Philp
Richard Beauchamp
Bruce Sutherland
Hearing held in North Bay on November 15, 1996.
AWARD
WHAT THIS CASE IS ABOUT
This is the grievance of Frank Mueck ("the grievor"),
who challenges the propriety of his layoff. Mr. Mueck received
notice of layoff on April 4, 1996, and filed this grievance on
April 24, 1996. The "Statement of Grievance" reads as follows:
."Filing grievance under the faculty Collective
Agreement, under Article 32.02 [the general grievance
provision] and 27.08A."
Article 27.08 reads this way:
27.08A An employee claiming improper lay-off, contrary
to the provisions of this Agreement, shall state in the
grievance the positions occupied by full-time and
non-full-time employees whom the employee claims
entitlement to displace. The time limit referred to in
32.02 for presenting complaints shall apply from the
date written notice of lay-off is given to the employee.
27.08B If the grievance is processed through Step 2,
the written referral to arbitration in 32.03 shall
specify, from the positions originally designated in
27.08 A, two full-time positions, or positions occupied
by two or more partial-load or part-time employees (the
sum of whose duties will form one full-time position),
who shall thereafter be the subject matter of the
grievance and arbitration. The grievor shall be
entitled to arbitrate the grievance thereafter under
only one of (i), (ii), (iii), (iv), (v), (vi), (vii) or
(viii) of 27.06.
A hearing in this matter was held in North Bay on
November 15, 1996. The parties are agreed that the board is
properly constituted and that it has jurisdiction to hear and
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determine the, matters .in dispute between them. But the parties
are not agreed that this case is arbitrable.
The grievor contends that his layoff was unnecessary.
The grievor maintains that the College should have accepted his
submission that the program in which he worked was (or could
be) financially viable, and thus should not have been
cancelled. No one suggests that the College was acting in bad
faith; however, the grievor asserts that his proposed
plan/budget would have permitted the program to continue, so
that his job would not have become redundant.
In the alternative, the grievor contends that he
should have been granted sabbatical leave when he applied for
it in May 1996 (i.e. 'after his layoff). In the grievor's
submission, sabbatical leave is an alternative to layoff, which
would have kept him on the College payroll pending a job
opening (for which he says he is qualified) in the support
staff bargaining unit. The grievor anticipates such vacancy in
the next few months, and believes that his chances of getting
that job would be enhanced if he is classified as "on
sabbatical" rather than "on layoff".
It is acknowledged that this job opportunity - if it
arises at all - will be in a different bargaining unit covered
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by a different collective agreement, that there may be issues
of the grievor's right to "bump" or "post" from one unit to
another, and that the grievor may be in competition for the
vacancy with other employees now covered by the support staff
collective agreement. However, the grievor maintains that, at
the very least, he would remain on the payroll until this job
opportunity materialises, and that his collective agreement
rights can be considered in the circumstances that obtain at
that time. The grievor submits that he should be entitled to
sabbatical leave as an alternative to layoff.
The College replies that the grievor's complaints are
not arbitrable.
In the College's submission, the grievor's layoff was
properly triggered and effected under the terms of the
collective agreement, after completion of the union-management
consultation process prescribed in that agreement. The layoff
was based upon management's assessment of the utility and
viability of the program in which the grievor worked; and the
fact that the grievor disagrees with that assessment does not
provide a basis for challenge, or establish an arguable breach
of any provision of the collective agreement. Nor does the
grievor actually point to any provision of the agreement which
would support this branch of his claim.
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The College further asserts that Article 27.08A (upon
which the grievor does rely) requires Mr. Mueck to "state in
the grievance the positions occupied by full-time and
non-full-time employees whom the employee [the grievor] claims
entitlement to displace". In the College's submission, a
grievor is required to identify the potential targets for
bumping; and in this case, Mr. Mueck has not done so - either
at the time that he filed his grievance, or at any time
thereafter. The College maintains that this requirement is
"mandatory", so that on that ground alone, the grievance must
fail.
Finally, the College asserts that the purpose of the
"professional development leave" described in Article 20 of the
Agreement, is to enhance the ability of teachers to fulfil
their professional responsibilities (see Article 20.01). It is
not a device to postpone some employment consequence that would
otherwise flow from the way that the College is being run or
the application of the collective agreement. Professional
development leave is intended to enhance future work
performance, not extend employment status or provide an income
supplement to an employee who would otherwise be leaving the
active work force. It was not designed to be an alternative to
layoff, or, as.here, a means to maintain the grievor's income
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while he is waiting for a job opening, in _.another . bargaining
unit.
In the College's submission, the grievor's
circumstances simply do not fall within the intended ambit of
Article 20, which (among other things) regulates the length and
purpose of professional development leaves, and requires an
applicant to submit a detailed written statement of the "nature
of the proposed leave and its perceived benefit to the College
at least six months Drior to the commencement date". The six
months advance notice is important in itself, and serves to
underline what "professional development leave" is all about.
The College maintains that the grievor's situation
meets neither the terms nor purpose of Article 20 ("... to
enhance the ability of the teacher ..."). Article 20 was not
mentioned in the grievance, the grievor has not provided the
required six months' notice, and, in fact, the grievor was not
even seeking sabbatical leave prior to his layoff. In the
College's submission, Article 20.has no application to the
grievor's situation.
In summary, the College submits that none of Mr.
Mueck's complaints fall within the ambit of the collective
agreement, and that his grievance should therefore be
dismissed.
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DECISION
We begin by observing that the collective agreement
contains a rather broad management rights clause, which reads
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, course, 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 6 makes it clear that the College retains the
right to manage its operations (including restructuring
programs) except to the extent that the exercise of such right
is specifically modified or restricted by the provisions of the
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_collective agreement. And there are such restrictions. For
example, under Article 27.05 "Layoff and Involuntary Transfer"
and Article 29 "Extraordinary Financial Exigency", the College
is required to engage in extensive consultations with the union
before taking decisions which might adversely impact upon the
job security of employees in the bargaining unit.
But no one in this case suggests that the College has
breached any of these obligations or has otherwise acted in a
manner that is arbitrary or in bad faith. Nor are such
violations of the agreement referenced in the grievance itself.
And that fact that the College may not have accepted or agreed
with the grievor's proposal to preserve his program and his
job, does not, in itself, establish a breach of any contractual
obligation. Nor was the union able to point to any provision
of the agreement that might support such claim.
In our view, it is unnecessary to canvass the issues,
arguments, or authorities discussed by arbitrator Kaplan in Re
York Region Roman Catholic Separate School Board and Ontario
English Catholic Teachers' Association (1995), 52 L.A.C. (4th)
285 - a case which was put before us and relied upon by the
College. We simply note that those issues and arguments do not
fit and were not pursued by the union in the instant case, so
it is unnecessary to consider whether York Reqion [or Re
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Cybermedics Health Services Ltd. and OPSEU Local 544 (1992), 27
L.A.C. (4th) 77 (McLaren)] provide a rebuttal.
On the other hand, the decisions of arbitrator Shime
in Re OPSEU and St. Lawrence College (September 11, 1986) and
arbitrator Weatherill in Re Fanshawe College and OPSEU
(June 17, 1987) are clearly relevant - both because they arise
in a College setting, and because they touch on the
arbitrability of Mr. Mueck's grievance. Both cases deal with
what is now Article 27.08 of the agreement - the provision
referred to in the grievance. And both cases support the
College's position that this particular grievance is not
arbitrable.
In St. Lawrence College the grievor claimed that he
had been laid off contrary to the terms of the collective
agreement, and (as in the instant case), was met with the
response that the grievance did not specify the persons whom
the grievor sought to displace. Arbitrator Shime observed, in
part:
But of greater significance in this case is the
requirement that a grievor, pursuant to Article 8.08
[now 27.08A] specify the names of employees whom he
claims he should displace. This collective agreement is
rather unusual in that regard. However, in the
grievance being arbitrated, no employees are designated
and thus, there has been a failure to comply with the
specific provisions of Article 8.08 .... The parties
have taken great care in drafting this provision and
inserting it into the collective agreement .... Also,
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Article 8.08B [now 27.08B] provides that the employee
specified "shall thereafter be the subject matter of the
grievance and arbitration". Thus, we conclude that the
specifying of employees in the context of this
collective agreement is not a trivial matter and the
failure to specify as required by the collective
agreement must be given serious consideration. Whether
the requirement is serious enough that it should not be
considered as a mere procedural matter but a matter of
substance the omission of which is fatal to the
grievance is a matter that need not be decided here ..."
The question left open by arbitrator Shime in the
concluding sentence of this passage, was answered by arbitrator
Weatherill about 14 months later in the Fanshawe Colleqe
decision. Once again, the board of arbitration had to consider
the propriety of a layoff, and once again there was a. problem
because the grievor had not specified the names of the
individuals whom he sought to displace. On this point,
arbitrator Weatherill commented:
... The grievor was entitled to grieve such a layoff.
The grievance does not meet the requirements of the
collective agreement in respect of such a claim. In
particular, the grievance does not set out the names of
employees against whom a right of displacement is
asserted. That is a requirement of the collective
agreement in cases of this sort, and it is obviously a
substantial, not merely a formal one .... Failure to
meet this requirement is. in our view. fatal to the
success of the grievance insofar as it may be taken as
seeking reinstatement in employment.
(emphasis added)
In the result, the board held that the grievor was precluded
from seeking reinstatement, and was confined to challenging the
adequacy of his layoff notice (an issue which is not present in
the instant case).
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These are admittedly old cases. But they are
precisely on point, no contrary authorities were cited to us,
and the language in question has been maintained, without
material change, since 1987, over several rounds of bargaining.
Had the parties wished to change the contract language to avoid
the interpretation given by arbitrators Shime and Weatherill,
they could easily have done so. But they did not. On the
contrary. Article 27.08B, as currently framed, merely
reinforces the mandatory thrust of Article 27.08A; because
27.08B narrows the number of positions which can ultimately be
the subject of arbitral review. The matters that can proceed
to arbitration are a subset of the positions identified in
Article 27.08A - which makes it all the more important for the
grievor to identify the field from which the arbitrable subset
is selected.
In other words, the current structure of the
agreement reinforces the interpretation advanced by arbitrators
Shime and Weatherill ten years ago.
It follows, we think, that Mr. Mueck's grievance is
fundamentally defective and therefore is not arbitrable. We
agree with the College's submission in this regard.
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Is the grievor nevertheless entitled to pursue a
professional development leave as an alternative to layoff? In
our view, the answer is no.
Strictly speaking, the grievance only refers to
Article 27, and does not mention Article 20 which sets out an
entirely different range of rights and responsibilities.
However, quite apart from that, we do not think that the
grievor's circumstances fall within the ambit of Article 20, or
that he has met its requirements.
Simply stated, "professional development leave" means
what it says: a period of subsidized upgrading, from which a
teacher returns with enhanced skills; moreover, we do not
foreclose the possibility that, in particular circumstances,
sabbatical upgrading may facilitate a transfer from one
teaching job in a bargaining unit to another. After all, just
as the College may change its program mix to meet the needs of
students, a teacher may have to accommodate himself/herself to
those changes, and that may require further study on his/her
part. However, the grievor's circumstances simply do not fit
within those parameters. His belated request for subsidized
"professional development leave" fits neither the purpose nor
the procedures prescribed in Article 20.
· /
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For the foregoing reasons, this grievance is
dismissed.
For the purpose of completeness, however, we wish to
make it clear that nothing in this decision should be construed
as commenting on the grievor's desire to be considered for a
job in the other bargaining unit should a job opportunity
materialize at some time in the future. Nor should anything in
this decision be construed as affecting the rights of persons
on sabbatical when a "downsizing" occurs, or the rights of
persons who wish to use sabbatical leave to enhance their
flexibility and employability as teachers in the bargaining
unit. Our decision is confined to the particular form and
facts of the grievance before us; and, as noted, we are all of
the view that this particular grievance must be dismissed.
Dated at Toronto this 12th day of December, 1996.
"John McManus"
I CONCUR:
UNION NOMINEE
"Robert Gallivan"
I CONCUR:
COLLEGE NOMINEE