HomeMy WebLinkAboutUnion 91-03-07 IN THE MATTER OF AN ARBITRATION
Local 110
BETWEEN: (hat A
FANSHAWE COLLEGE
(Hereinafter referred to as the College)
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF A~UNION'GRIEVANCE (OPSEU FILE #88C587)
BOARD OF ARBITRATION: Gail Brent
R. J. Gallivan, College Nominee
Jon McManus, Union Nominee
APPEARANCES:
FOR THE COLLEGE: Brenda Bowlby, Counsel
Pat Kirkby, Dean of Health Sciences
Peter Myers, Director of Human Resources
F0R THE UNION: S.T. Goudge, Counsel
P. Musson, Local President
FOR SALVATION ARMY GRACE HOSPITAL
AND FOR DIANNA DUPUIS: Jean L. Marentette, Counsel
Carol Foote, Administrative Technologist
FOR HOTEL-DIEU OF ST. JOSEPH HOSPITAL
AND FOR JOYCE KUREK: L.P. Kavanaugh, Counsel
David G. Baker, Asst. Executive Director
Paramedical Services
Lorne E. Dunkley, Director of Personnel
Joyce Kurek, Clinical Instructor
Hearing held in London, Ontario on January 16, 1991.
PRELIMINARY DECISION
The sole issue to be determined in this award is whether the two
Hospitals (Salvation Army Grace and Hotel-Dieu of St. Joseph) have standing in
this case.
For the purposes of the decision the following facts will be taken into
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account. On August 9, 1988 the Union filed the grievance (Ex. 1) which is
before us:
Local 110 grieves that the College has unlawfully contracted out
teaching in the Radiology program.
As remedy we seek a declaration that the College cease and desist
and that they recognize Dianna Dupuis and Joanne Kurak (sic) as full
time members of the bargaining unit with all consequential benefits.
To place the filing of the grievance in context we were told that on July 22,
1988 the decision of a board of arbitration chaired by Arbitrator Kates
dealing with a grievance between the College and the Union regarding the
status of Ms. Begert was released. That decision determined that Ms. Begert
was an employee of the College. On June 20, 1989 a second decision in the
matter was released by the Kates board which, among other things, re-affirmed
the first decision. The College applied for Judicial Review of the Kates
decisions. While that application was pending another grievance involving
Ms. Begert was placed before an arbitration board chaired by me. My award
found that the Kates board had finally determined the question of Ms. Begert's
status as of the date of his award, and that the issue could not be raised
again. The decisions of the Kates board were quashed insofar as either of
them purported to grant a remedy which extended beyond April 25, 1988. Leave
to appeal is being sought.
The Begert grievances deal with a situation where Ms. Begert was a
clinical instructor in Radiology in three Windsor hospitals. That situation
changed in April/May, 1988, from which time she continued to perform her work
at one hospital only. In the other two hospitals, those seeking status in
this case, such clinical instruction was then given by Ms. Dupuis at Grace
Hospital and Ms. Kurek at Hotel-Dieu Hospital.
On the same day as the grievance before us was filed, the Union filed
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another grievance (Ex. 4} which has since been withdrawn. That grievance was
identical to the grievance involving Ms. Begert which was before the Kates
board. That grievance read as follows:
Local 110 grieves that the College has violated Article 12 by with
holding dues for Dianna Dupuis and Joanne Kurak (sic).
As remedy the Union seeks dues owing plus interest and recognition
of Dupuis and Kurak as regular full time teachers and all consequen-
tial relief owing to them.
That grievance was before a board of arbitration chaired by Arbitrator
Teplitsky, and the Hospitals also claimed standing as interested third parties
there. It would appear that no finding of standing was ever made in that
case; however, it is unclear whether there was ever a dispute about standing.
Be that as it may, on February 12, 1990, in describing the grievance which is
before us, counsel for the Union informed counsel for Hotel-Dieu Hospital by
letter that "I can provide you with my opinion that there is now nothing being
referred to arbitration in which Hotel-Dieu Hospital has an interest." That
opinion was never accepted by the Hospitals, and the Union was made aware of
their intention to seek standing in this matter.
Turning to the Radiology program itself, we note for the purposes of
this decision that prior to 1973 most medical technologists were trained by
hospitals, with funding supplied by the Ministry of Health. After 1973 the
courses were divided into two parts: the Colleges teaching theory, and
hospitals being responsible for the practical portion of the courses. Funding
was transferred to the Ministry of Colleges and Universities. Prior to 1988
three Windsor hospitals, including the two involved in this matter, were
associated together as the Windsor School of Radiography to give practical
training in Radiology to College students. That School had one instructor at
Metropolitan General Hospital to serve all three hospitals. To make a long
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story short, there were some difficulties with that arrangement which finally
led the three hospitals to disband the School in April, 1988. Following that
each hospital had its own instructor of Radiology. The College had contracts
with each of the three hospitals involving the teaching of the practical
portion of the Radiology program.
As we understand it, it will be the position of the Union on the merits
that the two instructors named in the grievance are properly to be considered
employees of the College, and that in trying to contract with the Hospitals to
provide their services the College has improperly contracted out bargaining
unit work. The College has informed us that it will be raising a timeliness
issue which it is content to argue at the end of the case. It is also taking
the position that the withdrawal of Exhibit 4 signifies that the two instruc-
tors are not employees of the College, and that the contracting out issue is
the only matter left to adjudicate. 0n that issue the College says that the
work is not bargaining unit work and that the Union has the onus of proving
that it is such work.
Everyone is agreed that the two individuals have standing in this matter.
The dispute regarding standing involves the two Hospitals. Both Hospitals and
the College made submissions in favour of granting them standing. The Union
opposed the position.
In summary, it is the positions of the two Hospitals that the individuals
concerned are their employees hired by them through the normal hiring process
without input from the College, paid by them, and assigned duties by them.
They assert that they have an arm's length contractual relationship with the
College which provides that College students work in the Hospitals under the
direction of the Hospitals' employees, in return for which a fee is paid.
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Both Hospitals also have collective agreements with another union which covers
the employees in the Radiology Department, and both Ms. Dupuis and Ms. Kurek
are excepted from those bargaining units. Broadly speaking, they rely on both
their contractual relationship with the College and their employment relation-
ship with the two individuals as giving them an interest in this matter which
justifies granting them standing as parties.
We heard extensive submissions from counsel for all parties and all
potential parties. They cited and relied on two cases: Re Bradley et al. and
Ottawa Professional Fire Fighters Association et al., [1967] 20.R. 311 IC.A.)
and Re Canadian Union of Public Employees and Canadian Broadcasting Corp. et
al.; National Association of Broadcast & Electronic Technicians, Intervener
(1990), 70 D.L.R. (4th) 175 (Ont.C.A.). Counsel for Hotel-Dieu also raised
the issue of waiver, arguing that the Union had waived its right to dispute
the standing of the Hospitals.
Dealing with the question of waiver first, under the circumstances
described to us, we are most reluctant to conclude that the Union waived any
legal right it may have to object to the inclusion of third parties. There
would appear to have been no finding made in connection with the hearing of
the now withdrawn grievance lex. 4) that the Hospitals had standing. Even if
the Union and the College both acquiesced then in the Hospitals' positions
that they had standing in the adjudication of the withdrawn grievance, there
could certainly be no doubt following the February 12th letter that the Union
considered that the Hospitals had no interest which would justify their
standing as parties in the grievance before us. We do not consider that the
Union can be taken to have abandoned that position merely because it did not
respond to the Hospitals' assertion of any right to standing.
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The more serious question is the right of the Hospitals to have standing
as parties in this matter. In Bradley (supra) there were two groups of
bargaining unit employees with competing interests. One group had had a
benefit conferred upon it by the employer, arguably under the collective
agreement. The other group claimed that the employer had violated the
collective agreement by choosing to confer the benefit on the first group.
The Association, which was the bargaining agent for the bargaining unit that
included both groups, chose to proceed to arbitration representing both the
interest shared by both groups in the proper interpretation and administration
of the collective agreement and, in practical terms, the interest of the
deprived group which claimed that the benefit had been wrongly conferred. The
benefited group was not given notice of the fact that they could lose their
benefit as a result of the outcome of the arbitration hearing. At pages 316
and 317 Mr. Justice Laskin, as he then was, said:
A collective agreement is a unique legal institution because,
despite the generality of its terms as part of a bargain made
between a representative union and an employer, its existence and
application result in personal benefits to employees who are covered
by it. Once it is accepted, as it must be, that the benefits
running to employees may differ according to job classification or
seniority ranking (to take two illustrations), and that the
representative union is put to a choice between employees who
competed for the same preferment as to which it will support against
a different choice made by the employer, substantive employment
benefits of particular employees are put in issue and they are
entitled to protect them if the union will not.
It follows that they are entitled to notice of arbitration
proceedings taken to test their right to continued enjoyment of the
benefits. The fact that particular provision for notice is not
made either in the statute or in the collective agreement is of no
moment. There is a large silence in both - and this is not limited
to collective bargaining in fire fighting - so far as concerns the
procedure to be followed in an arbitration. The common law has been
specially sensitive to deprivation of property or contractual
advantages in proceedings of an adjudicative character without
previous notice thereof to persons likely to be directly affected,
unless there is a clear statutory exclusion of such notice. In the
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present case, there is none ....
At its narrowest, the case can be confined to the situation in which it
arose. That is, as a result of a grievance filed and taken to arbitration one
group in the bargaining unit was in danger of losing a benefit which had been
conferred upon it by the employer. It was recognized that the bargaining
agent could not represent the conflicting interests of both groups and that
the employer's interest was not identical to that of the group of employees
upon whom the benefit had been conferred, so that the benefited group must
have an opportunity of representing itself. At its broadest, it could be held
to stand for the proposition that anyone who may be directly affected by the
outcome of the process should have notice and the opportunity to take part in
order to protect his interest. Such a broad interpretation would define a
party without reference to the source of the benefits conferred, that is the
collective agreement.
The CBC case (supra) arose out of what was in essence a jurisdictional
dispute involving one employer with multiple bargaining units represented by
different bargaining agents. The collective agreement of an unrepresented
bargaining unit was interpreted at a hearing where the employer and another
bargaining agent were the only parties. Nhen the employer implemented the
award of the board of arbitration the other bargaining agents sought to have
the award quashed. The Divisional Court refused the application, and leave
was granted to appeal to the Court of Appeal. At pages 180 and 181, after
noting that there is nothing in Bradley (supra) to limit it to situations
where employees under the same collective agreement are directly affected by
the award of the arbitration board, Mr. Justice Carthy said:
The logic apparently lying behind the Divisional Court's
reasoning is that collective agreements are private contracts and
the resolution of rights within them is exclusively reserved to the
parties. That would be so in negotiations to change the terms of an
agreement but this exclusivity falls aside when arbitration is
pursued.
It is then an adjudicative proceeding in an administrative
framework. When CUPE brought this issue to the Divisional Court,
NABET was made an intervener by a consent order. If contested, its
motion would undoubtedly have been allowed. No one would have
tested its legal rights in any strict sense. The practical impact
of the result of this proceeding is so direct that fairness dictates
NABET's involvement. The same test would have been appropriate at
the arbitration level. Arbitrators are working within a statutory
framework to assure that employers and employees treat one another
fairly within the context of their agreements, that disputes are
efficiently resolved and that labour relations do not break down
through the alternative of protracted court proceedings. Their
awards can become judgments of the Federal Court when filed pursuant
to s. 66 of the Canada Labour Code. They must be fair and should
not be restricted to hearing only persons with a strict legal
interest.
In my view it was unfair and constituted a failure of natural
justice to deal with the employment opportunities of the CUPE and
NABET union members, in the circumstances of this case, in the
absence of notice and an opportunity to seek involvement in the
decision-making process.
Hence, standing is not restricted to those with an interest under the
collective agreement under which the grievance arose. It remains to be seen
how broadly the courts will define the concept of "interest" in the context of
an arbitration proceeding.
In the case at hand, it is alleged that the College has violated the
collective agreement by contracting out bargaining unit work. The relief
requested is twofold. A cease and desist order, and an order requiring the
College to recognize two individuals as its employees.
If the only relief requested were a cease and desist order, or if we were
in a position now to determine whether the College is correct when it says
that that is the only possible relief that can be claimed because of the
abandonment of the earlier grievance, then we would be disposed to agree with
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the Union that the Hospitals have no standing in this case. While it is true
that there is a contractual arrangement of some sort between the College and
the Hospitals which may be affected if a cease and desist order were granted,
an award of this board could not affect the legal relations between the
Hospitals and the College. That is, as in a normal contracting out situation,
where a cease and desist order is granted against an employer, there will be
an economic consequence insofar as the outside contractor is concerned;
however, that contractor is still able to look to his contract with the
employer for relief against breach, and protection of his economic interest.
The employer cannot rely on the award of the arbitration board as a defence to
any suit for breach of contract or any action for damages. Further, in the
arbitration proceedings the interest of the outside contractor and the
employer are identical because both would only want to see the collective
agreement interpreted to allow contracting out of the disputed work. Hence,
unlike the parties considered in both Bradley and CBC, the outside contractor
would have the identical interest as the employer at the arbitration, and also
have available its normal remedies for breach of contract to fully protect its
own interest should the contracting out grievance succeed. In such a
situation, we do not think that fairness and natural justice would dictate
granting an outside party standing to a dispute arising out of a collective
agreement.
In this case, though, the Union is not simply asking for a cease and
desist order. It is asking for relief that would affect the contract of
employment which we are told exists between the Hospitals and the individuals.
Such an order, if granted, could potentially remove someone from the employ of
the Hospital and place that person under the direction and control of another
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employer, or perhaps create a situation where one employee is employed by two
employers. In any event it would change existing employment relationships
between the individuals and the Hospitals. The relief requested is not a
necessary and normal consequence of a successful contracting out grievance.
If the College is found to be in breach of the collective agreement in having
contracted out bargaining unit work, why could it not choose to have the work
performed by those whom it currently recognizes as its employees rather than
by two individuals who are implicitly recognized as being the employees of
others by the very nature of the grievance? The nature of the relief
requested therefore 9ives the Hospitals an interest which is different from
the College's, and which cannot reasonably be protected in any other forum but
this. Therefore, we find that as in CBC (supra) fairness and natural justice
dictate that the Hospitals be recognized as parties to these proceedings.
For all of the reasons set out above, we find that should the Union wish
to pursue the remedies set out in the grievance, then the Hospitals will have
standing. However, should the Union notify this board and all concerned that
it is seeking only a cease and desist order, then we will allow the grievance
to be so amended and the Hospitals will not have standing.
DATED AT LONDON, ONTARIO THIS 7~kDAY OF ~%~mA~- , 1991.
Gail Brent
¢,
I concur / ~nt ~ ~ ~-~~~
R. J. Gallivan, College Nominee
concur / t
Jon McManus, Union Nominee