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HomeMy WebLinkAboutUnion 96-03-25 IN THE MATTER OF AN ARBITRATION (THE COLLEGE) AND OPSEU .... (THE UNION) AND IN THE MATTER OF A UNION GRIEVANCE RE ARTICLE 29 BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR SHEI~RIL MURRAY, UNION NOMINEE WM. CORRELL, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: PETER J. THORUP, COUNSEL R.A.J. LANDRY, COUNSEL DON SINCLAIR, VICE-PRESIDENT APPEARANCES FOR THE UNION: MAUREEN DOYLE, COUNSEL PETER McKERACHER, LOCAL UNION PRES. BEN KELLY, LOCAL UNION VICE PRES. A HEARING IN THIS MATTER WAS HELD AT OSHAWA ON FEBRUARY 29, 1996. AWARD. - 1 - On December 19, 1995, a grievance was filed by the Union (Local 354) claiming that the College was in breach of the collective agreement by not declaring a financial exigency under Article 29 of the collective agreement in effect between the parties. It is agreed that the Board is properly constituted and has jurisdiction in this matter. - The parties filed a Statement of Agreed Facts at the hearing as follows: "1. In order to make the hearing in this matter more expedient, the parties have agreed that for the purposes of the hearing into this issue, the relevant facts are as follows: 2. The issue in question relates to the interpretation and application of Article 29 of the Collective Agreement between the parties. Article 29.01 reads: '29.01 When a College plans to reduce the number of full-time regular employees who have completed the probationary period by lay-off--- of five percent or 20 employees whichever is less because of an extraordinary financial exigency the following provision shall apply prior to the application of the procedures set out in 27.05 (vii) and 27.06'. 3. As of December 31, 1995, the College employed a total of 510 employees. Of that total, there were 240 full-time academic employees, including six employees who were on long-term disability and five probationary employees. 4. Pursuant to Article 27.01, a full-time employee shall be appointed to 'regular status' upon completion of the probationary period. Accordingly, as of December 31, 1995, there were 235 full-time regular employees in the academic bargaining unit. 5. On or about December 15, 1995, the College gave the Union notice that eleven employees would be laid off. However, due to voluntary leaves of - 2 - absence and early retirement, it was only necessary to issue notices of layoff to eight employees. 6. The College began giving notice of layoff to employees on January 18, 1996 to be effective May 31, 1996. 7. During the period of layoffs, the College provided the Union access to its financial records and participated in discussions with respect Co the layoff of the above-referenced employees and associated seniority displacement issues. 8. Of the 235 regular full-time employees, twenty-four employees indicated they will take early retirement on or about August 1, 1996. This was done pursuant to a voluntary early retirement plan with a window for election that closed on November 30, 1995. Until August 1, 1996, these twenty-four individuals continue to remain employees including completing their normal active teaching responsibilities for the remainder of the 1995/96 school year. 9. It is the Union's position that twenty-four employees scheduled to take early retirement on August 1, 1996, should not be included in the calculation of the number of full-time regular employees, for the purposes of Article 29.01. Accordingly, the Union takes the position that the notice the College gave with respect to the layoff of the eleven employees in December, 1995, amounts-- to a layoff of more than five percent of full-time regular employees and that the College should have declared an extraordinary financial exigency and followed the procedures set out in Article 29. 10. The College takes the position that there has not been an extraordinary financial exigency and therefore Article 29 does not apply. Moreover, an extraordinary financial exigency was not the cause of the eight layoff notices. 11. Further, it is the position of the College that the twenty-four employees who have elected to take early retirement in August, 1996, are currently full-time regular employees and should be included for the purpose of calculation under Article 29.01 and therefore, the Article 29 process does not apply. 12. Alternatively, the College takes the position that the issue is moot, as the College has already complied with the intent of Article 29 with respect - 3 - to notice and consultation and any declaration would not serve any necessary labour relations purpose. 13. The parties agree to request the Board of Arbitration to first rule as promptly as possible on the discrete issue of whether the twenty-four future retirees should be or should not be included in the base number of employees when calculating whether the layoffs announqed in December/January meet or exceed five percent ~nder Article 29.01 (In other words is the base 235 or 2117)" In addition to the above Statement of Facts, it was agreed by the parties that the positions of the employees who accepted the early retirement plan would not be replaced. The issue to be determined by the Board at this time is set out in paragraph 13 above which is narrowed to the issue of the computation of the numbers of employees in the Academic bargaining unit when the layoff notice was sent by the College on December 15, 1995 to determine whether the terms of Article 29.01 had been triggered. The layoff of 11 employees in this bargaining unit is 4.68% of a total of 235 full-time regular employees while the same number of employees laid off applicable to the numbers of employees in the bargaining ~unit after removing from that total 24 employees who took the early retirement option, amounts to 5% of the remaining total of 21i. The Union's submission is that the correct total of full-time regular employees as at the date of the layoff notice was 211 as a result of the plan of the College to reduce the complement in this bargaining unit by early retirements, the option for which was open to these employees until November 30, 1995. At that date, 24 - 4 - regular full-time employees had taken up this option and while they continued to be regular full-time employees until the end of the school year in 1996, those employees should be reduced from the complement of regular full-time employees when the layoff notices were given. It was submitted for the College that the express words of Article 29.01 must be considered and in that regard, it applies to regular full-time employees who are to be. reduced by layoff and not by whatever cause such as retirement. Those employees who took the option for early retirement remained as regular full-time employees in the bargaining unit when the notice of layoff was given and were not included in the layoff as they had accepted retirement. Therefore, in its submission, the appropriate complement of full- time regular employees as at December 15, 1995 was 235 employees including those regular full-time employees who had accepted the early retirement option. Reference was made to the award of Arbitrator Hinnegan in RD Sur~ikos Canada !nc. and United Textile Workers of America, Local 510, 13 L.A.C.(4th) 134, in which it was stated in part: "The starting point and underlying presumption in construing the terms of a collective agreement is that the parties are assumed to have intended what they have said and that the meaning of the collective agreement is to be sought in its express provisions. The context in which words are found is also a primary source of their meaning and, in that regard, headings within the collective agreement may be referred to in order to explain the section or sections that fall under them..." - 5 - Applying that criteria to the express words of Article 29.01 in this collective agreement, we find that the key to its application is not just the layoff of a percentage of the employees in the bargaining unit but the words "when a College plans to reduce the number of full-time regular employees..." must be given express meaning. In the context of this provision which-falls under the heading of "extraordinary financial exigency", the emphasis is on the planning function of the College to lay off employees from the bargaining unit.~ In.Article 29.03, it is provided that in the 30 day calendar Deriod after a layoff notice, there are a number of matters to be dealt with relating to a financial exigency, Subsection (ii) being: "whether the utilization of others means such as normal retirement, voluntary early retirements, leaves or transfers can postpone or alleviate the need to discontinue appointments" This measure of a recommendation or advice follows a layoff notice arising from a financial exigency. When however, the College provided the early retirement option which it made available to regular full-time employees, it intended to reduce the staff complement in the bargaining unit by this method. That option was open to these employees until November 30, 1995. It was as at that date that the College could determine the number of reqular full-time employees who then would remain in the bargaining unit. Obviously, when that number of employees became known to the College, it could determine what further reduction of staff was necessary. Therefore, it was as of that date, we find the College - 6 - planned to reduce the number of regular employees in the bargaining unit by layoff which resulted in the layoff notice to 11 employees on December 15, 1995. We find for these reasons, that the Union's calculation of the n,~mher of regular full-time employees in the bargaining uni~ as of December 15, 1995 is correct in that the 24 employees who had taken the option for early retirement should not have been included for the purposes of layoff under Article 29 of the regular full-time employees who comprise the bargaining unit as at the date of layoff. We find that the College plan to reduce the number of regular full-time employees in the bargaining unit followed its knowledge on November 30, 1995 of the exact numbers of employees who had accepted the early retirement option and planned the subsequent lay off accordingly. Therefore those employees cannot be counted for the purposes of the application of Article 29.01. For all of these reasons, the Board finds that there were 211 regular full-time employees in the bargaining unit when the notice of layoff of 11 employees was given on December 15, 1995. . Therefore, it follows that the terms of Article 29.01 apply to the layoff as the base number of employees in the bargaining unit as at December 15, 1995 was 211. The layoff affected 5% of those employees and that the College should have declared an extraordinary financial exigency pursuant to the terms of Article 29. - 7 - The Board retains jurisdiction with regard to the other issues arising from this action as referred to by the parties but not dealt with at this hearing. DATED AT OA~VILLE THIS 25TH DAY OF MARCH, 1996. HOW D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE WM. CORRELL, COLLEGE NOMINEE Gowling, Strathy & Henderson J Barristers & Solicitors I Patent & Trade Mark Agents GOWLINGS Commerce Court West Suite 4900 Toronto, Ontario Canada, M5L 1J3 Telephone (416) 862-7525 June 27,1996 Facsimile (416) 862-7661 lan J. Roland Mr. Ron Davidson Direct (416)862-4319 Secretary (416) 862-4352 Coordinator of Grievances rolandl@gowlings.com OPSEU File T3 796191 100 Lesmill Road North York, Ontario M3B 3P8 Dear Mr'. Davidson: RE: Union and Fanshawe College (A) Policy Grievance Dated May 26, 1992 - Articles 7, 8 and Appendix 2 Judicial Review Application Enclosed please find a copy of the Court Endorsement concerning this Application for Judicial Review. As you can see from the Endorsement we were not successful in overturning the decision of the Board of Arbitration. The Application was dismissed with costs awarded to the Respondent in the amount of $2,500.00. I have taken the liberty of sending a copy of this letter to Paddy Musson. Yours very truly, GOWLING~THY & HENDERSON Ian J. Roland IJR:sh End. cc. Paddy Musson Ottawa Toronto Hamilton Kitchener Cambridge Vancouver Moscow COURT FILE NO: 427/95 ONTARIO COURT OF JUSTICE (GENERAL DIVISION) DIVISIONAL COURT IN THE MATTERS of an application under the Judicial Review Procedures Act CARRUTHERS, ROSENBERG, ADAMS BETWEEN: ) ) ONTARIO PUBLIC SERVICE ) lan Roland for the Applicant EMPLOYEES UNION ) ) Applicant ) ) and ) ) ONTARIO COUNCIL OF REGENTS ) R.J. Atkinson for thc Respondent FOR COLLEGES'OF APPLIED ARTS ) AND TECHNOLOGY (Fanshawc College) ) ) Respondent ) ) ) HEARD: Jnne 6, 1996 ROSENRERG J. (ORA1 The arbitration board in this case xsxprotected by a privative clause. Subsection 841 of the College's Collective Bargaining Act provides as follows: No decision, order, determination, direction, declaration or ruling of the Commission, a fact finder, an arbitrator or bp..ard, of arbitration, a selector or the Ontario Labour Relations Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, -2 - declaratory judgment, certiorari, mandamus, prohibition, quo warranto, application for judicial review or otherwise, to question, review, prohibit br restrain the Commission, fact finder, arbitrator or board of arbitration, selector or the Ontario Labour Relations Board or the proceedings &any of them. The College was obligated to give preference to fulltime positions unless there were valid operational reasons for doing otherwise. The Boards deferring to the College's expertise in making that determination was not patently unreasonable. They gave a full hearing and unanimously decided, "the two and two schedule has the fundamental strengths set out in Dean Kirby's memo which this board concludes that the union models cannot match.". They also determined, "it cannot be said that the management methOd was wrong in their assessment of the operational requirements or failed to do an assessment." Accordingly, even if the arbitrator was required to review the merits of the proposals, which we say they did not have to do, they have done so and determined that the College's scheduling is superior. Accordingly the application is dismissed.' ROSENBEII,G J. SJ. RELEASED: J ~ ~ 1 ~ [q~6 ~ COURT FILE NO: 427/95 ONTARIO COURT OF JUSTICE (GENERAL DIVISION) DIVISIONAL COURT IN THE MATTER of an application under the Judicial Review Procedure Act BETWEEN: ONTARIo PUBLIC. SERVICE EMPLOYEES UNION Applicant and ONTARIO coUNcIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND' TECHNOLOGY (Fanshawe College) Respondent ORAL JUDGMENT CARRUTHERS J. ROSENBERG J. ADAMS Jo RELEASED: ..i {.~ ?~ ] ~q 1~}~}~