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HomeMy WebLinkAboutUnion 89-05-17He~dr~o~e~s 88B~1~ H~ADNOTK File No: oi~SEU File Xo: 88B719 OPSEU Lc~,~i ~o: 110 U]~ION GRIEVANCE (OPSEU) v. FA~SHAWE COLLEGE, A~ dat~ Hay 17, 1989 ~ai~n: Devlin ~Y~ - Noti~ o~ ~y~ff - Individual ~ployee info.ed of ~~ layoff pri~r to Union notifi~tion. Griev~ce - ~loyee ~s ~fo~ by a m~er of ~e College ~q~t ~at ~e~ se~ion of ~e co~se he ~ught ~as likely to ~ el~t~ for ~e Fall Te~, ~d ~at he would ~en be laid- off. ~e Union ~as not notifi~ of a pla~ed reduction ~ c~le~n~ un~il several we~ la~lr. ~e ~ard declared this AWARD The grievance ~hich ~as filed by the Union involves a claim that the College violated Article 8.04 of the Collective Agr~t. In partic~ar, the Union says that the College i~properly advised an i individual e~ployee of a proposed lay-off prior to notifying the Union. A~cle 8.04 of the Collective Agreement is as 8.04 When a College plans to lay-off or to reduce the n,mher of full-time employees who have completed the probationary period, or plans the involuntary transfer of such employees to other positions than those previously held as a result of such a planned lay-off or reduction of employees the following procedure shall apply: (a) The College will notify the Union Local President of the! planned staff reduction and the courses, programs or services affected; (b) Within seven calendar days of the receipt of such notification, the College and Union Committees shall meet for the purpose of the College advising of the circumstances giving rise to the planned staff reduction and the employees affected; (C) If requested by the Union within three calendar days following the meeting under subsection (b), the College and Union Committees shall meet within seven calendar days of receipt of such request for the purpose of discussing the planned staff reduction, the circumstances giving rise to the reduction the basis ' for the selection of the employees affected and the availability of ~alternative assignments. It being un erstood that the College reserves the right tc determine the number and composition of ~ull- time, partial l°ad and part-time or sessional teaching positions, the College shall give preference to continuation of full-time positions over partial load part-time or sessional positions subject to such FANSHAW~ COU.F~E ~md~.IO PUBJ, iC SERVICE ~]~P~YEES UNION UNION GRIEVANCE RE ARTICY.£ 8.04 BOARD OF ARBITRATION: JARE H. DL:"FLIN C}LAIP. M3~N RON HUBERT COLLEGE NOMINEE WAYNE ROBERTS UNION NOMINEE 6ppearances for the College: Barry Brown Ruth Gates Peter Myers AR~9.arances for the Union: Pamela A. Chapman Paddy Musson Gary Fordyce David Morris operational rec~aire~ents as to the quality of the programs, their econo~ic viability, attainment of progra~ objectives, the need for special qualifications and the ~arket acceptability of the programs to e_~ployers, students a~d t~e cc~unity. Further ~eetings ~ay be held where mutually agreed by the College and the Union; (d) The Union Committee and the College shall ~aintain the confidentiality of the meetings and the identity of all e~ployees discussed; (e) The Union shall have the right to have a staff representative(s) of the Union present at meetings with the College under sub~e~tions (b) and (c) in which event the College shall have the right to have an equal number of additional representatives of the College attend such meetings. However, the attendance of additional persons pursuant to this paragraph shall not cause any delay, in the meetings contemplated hereunder or the notice to individuals affected by the staff reduction; (f) When the College decides, following such meetings to proceed with a lay-off of one or more employees who have completed the probatibnary period written notice of lay-off of not less than ninety (90) calendar days duration shall be given to employees being laid off. If requested by the employee, a College representative will be available to meet with the employee within three (3) calendar days to discuss the basis of the College selection of the employees affected." The circumstances giving rise to the grievance may be briefly described. In April of 1988~ David Morris was a full- time Teaching Master as well as the Co-ordinator of the Welding Program at the College's St. Thomas campus. Mr. Morris taught one of two sections of the Program and as Co-ordinator, he met on a regular basis with representatives of Employment and Immigration Canada, the purchaser of the majority of seats in the Program. The purpose of these meetings was to discuss student 2 operational requirements as to the quality of the programs, theirleconomic viability, attainment of '! progra~ objectives, the need for special qualifications an~ the ~arket acceptability of the programs to e~ployers, students and the co--unity. Fur~er ~eetings ~ay be held where mutually agreed by the College and the Union; (d) -'~e Union Co~ittee and the College shall ~aintain 2he confidentialit~ of the meetings and the identity of all~i'e~loyees discussed; (e) ~he UniOn shall have the right to have a staff representative(s) of the Union present at meetings with the College under subsections (b) and (c) in which event the College shall have the right to have an equal nu~r of additional representatives of the College attend such meetings. However, the atteDdance of additional persons pttrsuant to this paragraph shall not cause any delay-lin the meetings contemplated hereunder or the notice to individuals affected by the staff reduction; (f) When the College decides, following such meetings to prOCeed with a lay-off of one or more employees who have completed the probatibnary period written notice of lay-off of not less than ninety (90) calendar days dUration shall be given to employees being laid off. If requested by the employee, a College representative will be available to meet with the employee within tt-ee (3) calendar days to discuss the basis of the College selection of the employees affected." The circumstances giving rise to the grievance may be briefly described, in April of 1988, David Morris was a full- time Teaching Master as well as the Co-ordinator of the Welding Program at the College's St. Thomas campus. Mr. Morris taught one of two sections of the Program and as Co-ordinator, he met on a regular basis with representatives of Employment and I~u~igration Canada, the purchaser of the majority of seats in the Program. The purpose of these meetings was to discuss student progress but Mr. Morris. acknowledged that if he had observed a decline in ~rolL~ent, he might have raised this as well. On April 28, 3988, Mr. Morris met with Ruth Gates, the Principal of the St. Thomas campus for the purpose of preparing his Standard Workload For~ ('SWF~) for the period from September to Decenber of 1988. Hr. Morris testified that at that meeting, Ms. Gates indicated that there was no necessity to complete a SWF as his section of the Welding Progra~ would not be taught in the fall of 1988. Mr. Morris understood from Ms. Gates that the funds previously set aside for Welding were to be used for another program. In any event, according to Mr. Morris, Ms. Gates also indicated that if there was no change, he would be laid off in September of 1988. For thi~ reason, a SWF was not prepared at the meeting of April 28th and Ms. Gates suggested that Mr. Morris explore the availability of additional teaching contact hours in other Departments on the main campus or consider alternate employment. .Ms. Gates offered to assist Mr. Morris in any way she could. Ms. Gates disagreed somewhat with Mr. Morris' evidence concerning their conversation on April 28, 1988. Ms. Gates testified that although no formal notification had been received at that point, it appeared likely that Employment and Immigration Canada would be reducing the number of seat purchases in the Welding Program. As a~result, at the meeting on April 28th, Ms. 4 Gates advised Mr. Mo~rris of the real possibility that his section of the Welding Priam wou/d not be taught i~ the fall of 1988. A/though Ms. Gates testified that she indicated to Mr. Morris that the loss of the section was not certain, she conceded that as the junior e~ployee in the Welding Program at the St. Thomas campus, Hr. Morris WOuld have concluded that 'his job wouldn't be there". Ms. Gates explained that she raised the matter directly with Mr. Morris as a cour~sy because she was sure that he would have heard of the possible reduction in seat purchases frcm representatives of ~Employment and Immigration Canada with whom he met on a regular basis. If there was to be a reduction in seat purchases, Mr. Morris would also have soon observed a gradual decline in enrollment in the Welding Program. Following~the meeting of April 28th, Mr. Morris arranged a number of meetings with Chairmen of other Departments with a view to obtaining additional teaching contact hours and also applied for positions outside the College. In addition, Mr. Morris contacted the Union and was informed that the Union had not been notified of the proposed lay-off. On May 27, 1988, the C¢llege was formally advised by Employment and Immigration Canada that there would, in fact, be a reduction in the number of seat purchases in the Welding Program. As a result, the Union was given notice and a meeting was held on June 7, 1988 between representatives of the College and the Union in accordance with ArtiCle ~.04 of the Collective Agree~-ent. At that ~eeting. the College advised the Union that there was to be a staff reduction in. th~.. ~_-Idi~g Progra~ and that Mr. Morris was the affected e~ployee. T~e t~ion, in turn, informed the College that in iB ~rie~, 1~. G~t~.q had '~iol~,t~:l the Coll~'tive Agreemen~r in dimim'~ the proP°~! lay-of.f vith Mr. Morris prior to notific~tio~ ~ consultation vith the IJnion. In July of 198i8, the College adwised the Union that the lay-off of Mr. Morris would not be necessary and in the end result, Mr. Morris was not given notice of lay-off as provided in Article 8.04 of the Collective Agreement. It was the submission of Ms. Chapman, on behalf of the Union, that the provisi6ns of 3~-ticle 8.04 are mandatory and that this Article requires t~e College to notify and consult the Union with resl::~::t to plann~l staff reductions prior to giving notice to individual employees.I Ms. Chapman contended that the College did not follow the proc~lure set out and she requested that we issue a declaration to this effect. It was the submission of Mr. Brown, on behalf of the College, that the actions of Ms. Gates did not violate the Collective Agreement. Mr. Brown contended that Ms. Gates simply advised Mr. Morris of an external event; namely, the possibility that there would be a reduction in the number of seat purchases in the Welding Program. ~s. Gates did not infor~ Mr. Morris of the College's plans in respoase to that event and Mr. Brown s,~tted that in April of 1988, in fact, the College had no plan to lay-off Mr. ~orri~s or any other employee. In these circumstances, there was no obligation to consult with the Union and Mr. Brown requ-_sted that we dismiss the present grievance. Article 8.04 of the Collective Agreement establishes the procedure to be followed whe~ the College plans to lay-off or reduce the number of full-time employees who have completed their probationary period or plans the involuntary transfer of such employees as a result of a planned lay-off or reduction of employees. The Article provides for notification and consultation with the Union within a specified time of notice being given. ~7~e ~rties have also agreed to maintain the confidentiality of the meetings and the identity of all employees discussed. If the College decides to proceed with a lay-off after the meetings ~eferred to in Article 8.04, provision is made for notice of lay-off to be given to the employee or employees affected. The issue!, then, is whether Article 8.04 applies in the circumstances of this case. In our view, Ms. Gates went beyond merely advising Mr.. Morris of the fact that Employment and Immigration Canada was considering reducing the number of seat purchases in the Welding Program. Whether Ms. Gates informed Mr. ? Morris that he ~x~ld be. laid off or only that this was a real possibility, she ~nly discussed with him the impact of that ext~l event upo~ his position as a Teaching Master at the College. Ms. Gates ag~ eed that it was fairly clear to both herself ar~ Mr. Morris that mhe would be !the one to go~ and she advised hi~ to explor~I the availability of other positions both within and outside the College. In our view, it is simply not open to the College to say that it had no plan to respond to the probable reduction in ~{ seat purchases in theWelding Program. Ms. Gates conveyed to Mr. Morris the impact that the reduction in seat purchases would have upon staffing at the COllege and advised him that he would be the affected employee. As a member of management, Ms. Gates must be taken to have spoken on behalf of the College in this regard. In so doing, we find that Ms. Gates dealt with a matter in respect of which the College was first required to consult with the Union in accordance with Article 8.04 of the Collective Agreement. In Algonquin College and Ontario Public Service Employees Union, April 25, 1986 (Swan !(unreported)), the Board had this to say: " .... we are of the view that it is equally a breach of clause 8.04 to give notice to individual employees that they have b~en identified as those to be affected by one of the events set out in the preamble to clause 8.04 prior to completing the process set out in sub- clauses (a) to (e). The prohibition on giving such notice arises from reading the clause as a whole, and in particular from considering the very short compass of the consultation process described in paragraphs (a} through (e), with the requirement that the union committee maintain the confidentiality of the meetings 8 and the identity of all e~ployees discussed, set out in sub-clause (d)., If the parties had intended that the E~ployer could give notice of any adverse effect to the e~ployees concerned prior to the completion of the process, there ~ould be scarcely any necessity for the requirement to ~aintain confidentiality. We are, therefore, of the vi~ that the College is in breach of clause 8.04 in giving notice to the employees on June 14, 1985 before co~pleting the process set out in the clause. = i Although there can be no doubt that Ms. Gates spoke with Mr. Morris out of genuine concern that he be advise~ of his position by the College rather than by an external source, the Collective Agreement sets out the procedure to be followed when the College plans a reduction in staff. Article 8.04 provides that the employee is'to be notified only when the College has consulted with the Union and determined to proceed with a lay- off. This procedure, avoids the type of misunderstanding which arose in this case as to whether the employee is to be laid off or whether this is only a real possibility. Moreover, this procedure ensures that the employee is advised of lay-off only after the parties have had an opportunity to discuss matters such as the availability of alternate assignments. In fact, Paddy Musson, the President of the Local, testified that she has attended a number off'meetings convened pursuant to Article 8.04 and that in almost all cases, such meetings have alleviated the need for a lay-off. ~ In these circumstances, an employee is not advised unnecessarily that his job is in jeopardy. 9 In the result· a~d for the reasons set out, the B~ard hereby declares the College to have violated the Collective Agreene~t by failing to notify a~d consult with the Union in accordance with the provisions of Article 8.0¢. DATED AT ~ this 17th day of Hay 1989. See attached Addendu~ 'Ronald A. Hubert College Nominee See attached Addendum WWay~e Roberts" Union Nominee ! haYe co~curred ~rith '~.he ~ard ~ly because Ns. Gates ~ent bej~ond advisir~j I~. l~orris of the' fact that E~plo~aent and [migration Canada did not have ~elding as a. priority a.~ ~hat this could have the effect of re=o;;.~j, hia~ fro~ the ueldin9 program. By ~a~ Of an a<kie~l~!:to th~ a~.~rd, [ think it is useful to briefly set crdt a different perspective of ~h~t has been d~ a technical breach of the agreement and ~hat attempts ~re ~cle 'o rectify the situation. Cc~trar$ to :ahat the union claias, there ~as no planned staff reduction by the College. ~s. Gates became a~are of the possible events as stated abo~e ~l in .er uorC~i:, stated ": felt I should be up-front in letting ~tr. Horris kno~. It '~as the :;'-~,~e thing to do'. You have an employer mo h~s a ~oncern for, one of her employees and decides to pass on infornation to hla~ before he hears of It frcxa external sources ~ith he has c~.Lact. She is a~are ef his skills and background and endeavours to give him so~e opportunity to assess his situation sheuld the number of ~elding seats be reduced.' 8~r reason of ~hat Ns..: Gates kne~ at that time, no notice of a planned staff red~tion could bel givesl to the union, because the decision ~as that of E~plo)~ent and I~igra.tion Canada, not the College. l~r. ~orr'is never ~as given a notice of lay off, nor ~as he ~.aid off. The Union, as indicated in the a~Grd ~as given prop~:~ notification of a reduction in the numbe'r of seat purchases as soot. as the College ~as fc~aally aavise, d of this :fact. by Employment and Immigration Canada. ~[hen this matter ~as raised for discussion in ~.he grievance procedure, it is significant to note the attitude and action of the College. The Vtce-Pr~ident, Cca~unity Services ~rote the Union President stating 'in retrospect, ~e agree that 'it ~ould have been better if discussion the possibilit~ of lay off in the ~elding progr&~n had not occurred ~ith Oavid Ho~ris prior to the official meeting ~ith the facult~ union President". He indicateG this ~ould be done in the future and invited the union to enter into an 'agreement to deal ~ith events such as this and ho~ Article 8.04 ~ould appl~y~ '[he L:nton declined to respond to this initiative to resolve the matter and pressed on to arbitration. :t is some,~hat unfortunate that ~oth parties could not have demonstrated the same spirit of cooperation and ~illingness to cieal ~ith tho situation, l~hat ~as inteqded to be a human courtes~ and not a contractual violation has no~ run ~ts course a~'~d to ~hat end, in terms of the on-going re'lationship of the parties? I~ is emcouraging that ail parties no~ agree on the sequence and rationale behind t~e collective agz~nts p~ovisions uith regard to layoff. I~ is ~nfozt~te that t~is ~tt~.r had to be resolved by a~bit~ation ~t t~is ~s ~cessa~ ~cause ~a~gement wa~ nc, t pzepa~ to ~onc~e its violation of the agreement.