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HomeMy WebLinkAboutUnion 89-02-22 GRIEVANCE AWARDS HEADNOTES 8 8 B717 OPSEU FILE : 88B717 OPSEU LOCAL : 110 Union (OPSEU) v. Fanshawe College Award dated February 22, 1989 (Brent) Arbitrability - grievance procedure - interpretation - Union grievance pursuant to Article ll.10 of the Agreement - Union grievance filed on same date as individual grievance - same fact basis for Union grievance and individual grievance. Grievance dismissed: grievance is not a proper Union grievance because the individual could grieve and did grieve the same "matter" within the meaning of Article 11.10 of the Agreement. Peter J. Lukasiewicz IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE (Hereinafter referred to as the College) ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (Hereinafter referred to as the Union) AND IN THE MATTER OF UNION GRIEVANCE OPSEU FILE No. 88B717 BOARD OF ARBITRATION: Gail Brent R. Hubert, College Nominee Jon McManus, Union Nominee APPEARANCES: FOR THE COLLEGE: Barry Brown, Counsel Doug Busche Monte Black FOR THE UNION: Peter Lukasiewicz, Counsel Paddy Musson, Local President Gary Ford¥ce, Steward Marcia Robson A hearing in the matter was held in London, Ontario on January 18, 1989. DECISION The matter to be determined is the Board's jurisdiction to hear and determine the Union grievance (Ex. 1, part) filed on May 20, 1988. The body of that grievance is set out in full below: The Union grieves that the College has violated Articles 4, 8 Appendix II and Appendix III et al of the Collective Agreement when they combined sessional & partial load appointments to circumvent the completion of the probationary period not allowing Marcia Robson to obtain full time non-probationary status. As remedy the Union seeks for her an appointment as a full time non probationary teacher immediately with any seniority, salary & fringe benefits owing, with interest. We also seek the workload information regarding her assign~ent, indicating that she received the six weeks notice of assigru~ent and a declaration from the College that they ~ill cease and desist their practice of attempting to circumvent completions of probationary periods by combining partial load & sessional appointments. The parties did not call any evidence in connection with the issue they placed before us. They agreed to file a bundle of documents lex. l) which included the grievance and all other documents they relied on for the purpose of determining the matter they placed before us. Included in the bundle was a grievance filed by Marcia Robson. on May 20, 1988. The body of that grievance is also set out below: I grieve that the College violated Article 8, App. II, App. III et al of the Collective Agreement by combining sessional and partial load assignments to circumvent the completion of the probationary period and the obtainment of full time non-probationary status. As remedy I seek to be appointed to a full time, non-probationary position at the College effective immediately. I also seek recognition of two years seniority for having completed the probationary period and any salary and benefits owing to me, with' interest. On May 27, 1988 the College replied to the Union grievance. The body of the reply follows: This is in response to the Union policy grievance dated 1988 05 20. I understand that while you have primarily cited the ~arcia Robson situation, you believe there are others in a similar sftuation. You have undertaken to review your records and provide a list of names within a few weeks. The following is my understanding of your position regarding Robson: 1. During the period from Fall 1984 to the end of 1985, the College intentionally kept Robson from achieving probationary status by combining partial load with sessional appointments. Rad the College given work to Robson that it gave to others, she would have completed "12 in 24" by the end of November, 1985, and been probationary from December, 1985. You believe this is a breach of paragraph 2 of Section 2 of Appendix III. 2. During the period from December, 1985 to early 1988, the College continued to fail to assign work to Robson with the intent of keeping her from completing the "2nd 12 in 24' and thereby complet- ing probation. You believe this is a further breach of paragraph 2 of Section 2 of Appendix III. 3. During the above periods the College failed to 9ire preference to full-time positions over partial Icad or sessional. You believe this is a breach of Section 5 of Appendix II and paragraph i of Section 2 of Appendix III. 4. The College failed t° credit Robson with the seniority flowing from the above, and ts, therefore, in breach of Article 8. 5. During the ~erlod from December, 1985 onward, the College failed to apply the workload provision of Article 4, including the provision of SWF's. By way of remedy, I understand you are seeking that the College appoint Robson to a full-time position with full retroactivity of salary, benefits and seniority. Addressing each of the above: 1. An examination of the facts shows that Robson did in fact complete the "1st 12 in 24" sessional months at the end of March, 1986. During the period you cited, only the months of September, October and November, 1985 were partial load - at all other times when in the employ of the College her status was sessional. You presented no evidence in support of your claims of abuse and intent to circumvent the Collective Agreement. The College believes the appointments were legitimate and denies the abuse and intent suggested. In any event, Robson completed the "1st 12 in 24" by the end of March, 1986. 2. The College position is that paragraph 2 of Section .2 of Appendix III has no application in that it applies only during the "lst 12 in 24". Further, Robson sent ~ memo dated June 12, 1986 to M. Black to advise the College that she would be "unavailable for employment from June 30th, 1986 to August lSth, 1987". 3. With respect to the "preference" clauses in Appendices II and III, the College believes that these clauses do not apply because there are no "positiOns" involved. Rather, there are from time to time short term operational needs which may be met tn a variety of ways. 'In the Robson case, there is no evidence that any of her appointments were not legitimate. 4 & 5 Given the above, the College sees no rights to seniority and believes that Article 4 has no application. For all of the above reasons, we are unable to agree there has been any violation of the Collective Agreement. As mentioned during our meeting, the College believes that this grievance is untimely and that the Union does not have a right to file such a grievance tn any event. Both these matters are covered in Article 11.01 and are clear. The events mentioned all occurred more than 40 days ago, and since Robson has filed a virtually identical grievance at the Same time, the Union does not have a right to file a policy grievance. ~e were informed that the reply to Ms. Robson's grievance was identical to the reply given the Union, save for the objection that the matter was not a proper Union grievance. For the purpose of the timeliness objection raised by the College, and without relying on specific dates, the Board was informed that Ms. Robson gained probationary status in March, 1986 by virtue of the operation of Appendix III of the collective agreement. Tbs twenty-four month period in which she needed to work twelve months in order to complete her probationary period would have expired at the end of April, 1988. She did no work for the College during the months of July, 1986 to September, 1987 inclusive. ~ben she returned to work in October, 1987 there were an insufficient number of months remaining in her probationary period to allow her to accumulate the eleven months which she needed to complete it. The Union informed us that the relief which it was seeking if the grievance succeeded was a declaration that the College's interpretation of the collective agreement as set out in the reply to the grievance; that is: 2. The College position is that paragraph 2 of Section 2 of Appendix III has no application in that it applies only during the "lst 12 in 24". Purther, Robson sent a memo dated June 12, 1986 to M. Black to advise the College that she would be "unavailable for employment from June 30th, 1986 to August lSth, 1987'. is wrong and that the College should cease and desist from so interpreting the 5 collective agreement. It is agreed that the facts relating to Ms. Robson's individual grievance are not before this board for adjudication. That grievance is still outstanding between the parties and has been referred to arbitration. The arbitration is scheduled to occur in ~arch, 1989. Ar~unent The College raised two jurisdictional issues: timeliness and the inappropriateness of the Union grievance given Article 11.10. Its position on the timeliness issue, in short, is that since the allegation is that the College's actions affected the completion of the second "12 in 24" of the probationary period, the alleged violation would have occurred whenever the scheduling practices would have made it impossible for Ms. Robson to complete the probationary period. That would be whenever the number of months remaining in which to complete the probationary period was less than the number of months actually needed to complete probation. Here it would have been known in October, 1987 that the probationary period could not be completed, and the forty day time limit imposed on the Union by Article 11.10 would have expired before May 20, 1988, when the grievance was filed. It further states that it is not possible to wait until the end of the 24 month period to' file the grievance because the allegation is that what gave rise to the grievance were the scheduling practices which occurred during the 24 month period, rather than the expiry of the 24 month period itself. The College's second objection is that the matter is not a proper Union policy grievance. In summary, the argument on this point is that once it is conceded that Ms. Robson's facts are not before us for adjudication there is no substance to the grievance and nothing left for the board to determine. It argues that it is insufficient from a Jurisdictional standpoint to point to the one reference to Appendix III which the Union says it wants interpreted because, if. it arises out of the Robson situation it will be determined in that arbitration case, and if it does not so arise it is a hypothetical question only. It argues that because Robson grieved there is no need to get into the "hurdles" set out in Article 11.10, and further that Article 11.10 precludes the Union from grieving on the same matter. It argues that there is no separate matter to be referred to this board, and that for all intents and purposes the question of any alleged violation of the collective agreement is the same in both the Robson grievance and the one before us because there is no suggestion that this is anything other than a problem peculiar to Ms. Robson. The College also argues that the simple fact that a declaration is sought is not sufficient give this board jurisdiction. It says that a matter can be placed before this board only if there is an actual situation which generates the dispute, or if there is an agreement of the parties. Its position is that since there has been no agreement to the adjudication of a hypothetical situation, and because the Robson facts are not before us we cannot adjudicate the actual situation, there can be no way for any dispute to arise. It says that any' dispute is said to have arisen from the College*s reply to the grievance and there is no evidence of it being a position or practice which predates the grievance or which has any adverse effect on any bargaining unit members. It says that if the Robson facts generate the question, then the Robson board will have to determine it. It says that if the matter is not capable of coming before a board of arbitration as an individual or proper Union grievance, then it is an academic point until the College transforms its ? alleged position into a practice and someone is aggrieved by that practice. It also says that if the matter is determined by the Robson board, then the interpretation will be applied throughout the bargaining unit. The College referred us to the following cases in chief: Algoncruin College and OPSEU IMontone - 838511 (1984J, unreported (Brent); Fanshawe College and OPSEU 11984), unreported IKruger); and Fanshawe College and OPSEU ~19821, unreported (Bastedo). The Union's position is that this is a. proper union grievance within Article 11.10. It says that the first sentence of the article is broad enough to reflect the Union's proper role in policing its agreement and in dealing ~ith issues which transcend the individual's interest in the remedy to his/her own problem. The Union says that the College's position, namely that there is an interpretation of the collective agreement which has been applied in the Robson case causing her to suffer as a result and which will be determined by the Robson board thereby depriving this board of jurisdiction because this board cannot determine the facts that underpin the dispute, begs the question. It says that it makes no sense for the collective agreement to say that there is a type of grievance which the Union can raise but that it cannot be raised. The Union argues that the matter before us is whether the College's inter- pretation'of section 2, paragraph 2 of Appendix III is correct, and that the College has stated its .position in the context of the Robson grievance, that this constitutes a lis for us to adjudicate, and that it is not a hypothetical question. The Union distinguishes between the individual and Union grievance by saying that the individual grieves the effect while the Union grieves the cause. That is, the Union-grieves the root of the problem, being the inter- 8 pretation of the collective agreement which the College relies on. It says that the reason why there are 'cause grievances' ts so that the parties do not have to have numerous 'effect grievances' before finally dealing with the root of the problem. It says that the purpose of Article 11.10 is to allow the Union to address a problem which is universal throughout the bargaining unit. The Union acknowledges that there is a limitation upon Its right to grieve in Article 11.10, but says that this ts not a case where the individual would have a right to grieve because of the relief sought. It says that any relief granted in the Robson case would be limited to Robson, and that it should also be kept in mind that the Robson case may well be decided on matters other than the interpretation of the particular clause in question. The Union takes the alternative position that, if this is a case where the individual could grieve and the three tests set out in Article 11.10 must be met, then the Union can meet the tests. It says that Ms. Robson has not grieved an unreasonable standard because the relief she can request is limited to her own case. It further argues that there has been a "patent violation' because the collective agreement refers to twelve months of sessional employment within 'a twenty-four [24~ month period" with no suggestion that it should apply only to the first twelve months, and that the provision was meant to be a check on the College's ability to defeat the intent of section l{c] of ApPendix III. It also argues that in determining whether there has been adverse effect upon the bargaining unit it is incongruous to require the proof of adverse effect through an individual and to conclude that once there was an individual grievance there could never be room for a Union grievance. In respect of the timeliness objection the Union claims that this is a continuing grievance because it refers to a standard which the College says .9 that it maintains and continues to maintain. The Union referred to the following case: Alqonquin Colleqe and OPSEU [Union Grievance - 85K78) (1985), unreported (Kates). In reply we were told that the Union's "cause" and "effect" argument was not in accordance with the regime established in Article 11.10. The College also claims that the Union's argument overlooks the fact that for the three part test to apply an individual must have been able to grieve and failed to grieve, and that in this case the individual did grieve. The College also takes issue with the position that this is a continuing grievance because it argues that the Union became aware of the standard in connection with the Robson case, and that there is no suggestion that the policy, if it is a policy, has ever been applied in any other situation. It says that the time must run then from the time that the alleged policy affected Hs. Robson. The College also takes the position that this is not a "patent violation", and relies on the decision in Fanshawe Colleqe and O?SEU (Robson) (1988} unre- ported (P. Picher). Award The following provisions of the collective agreement may be of sig- nificance in determining the jurisdictional issues placed before us: 11.10 Union Grievance The Union shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of persons in the bargaining unit. Such grievance shall be submitted in writing by the Union l0 Grievance Officer at Head Office or a Local President to the Director of Personnel or as designated by the College, within twenty {20} days following the expiration of the twenty days from the occurrence or origination of the circu~stances giving rise to the grievance commencing at Step No. 1 of the Grievance Procedure set out above. AP?EI~IX III SESSIONAL ENPLOYEES 1 (a) A sessional employee is .defined as a full-time employee appointed on a sessional basis for up to twelve (12) full months of continuous or non-continuous accu=ulated employment in a twenty-four (24} calendar month period. Such sessional employee may be released upon two (2) weeks' written notice and shall resign by giving two (2]~ weeks' written notice. Ici If a sessional employee is continued in employment for more than the period set out in paragraph ~a) above, such an employee shall be considered as having completed the first year of the two (2) year probationary period and thereafter covered by the other provisions of the Agreement. The balance of such an employee's probationary period shall be twelve (12) full months of continuous or non-continuous accumulated employment during the immediately following twenty-four (24) calendar month period. The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to clrcu~nvent the completion of the minimu~ twelve [12) months sessional employment in a twenty-four (24) month period. It ts a truism that parties who negotiate a collective agreement are obliged to abide by the terms of that agreement. In order to ensure that the obligation is met, the parties have the right to grieve and to have the grievances determined by boards of arbitration. In collective agreements parties can determine and define the scope of grievances which can be brought by the Union as policy or Union grievances. This collective agreement has very specific provisions regarding Union grievances, and those specific provisions must govern our determination of the jurisdictional questions placed before us. 11 The first sentence of Article 11.10 gives the Union a broad right to file a Union grievance; however, the second sentence restricts the right conferred in the first by defining a proper Union grievance as not including 'any matter upon which an employee would be personally entitled to grieve'. The 'matter' on which an individual ts entitled to grieve is one where she/he is alleging that the collective agreement has been violated in a manner which personally affects her/his situation and where the individual concerned has the status of employee and can pursue a grievance. In our view 'matter' as used in the article refers to the circumstances giving rise to the allegation that the collective agreement has been violated. In the situation before us both the Union and Robson grievances are complaining about the same circumstances, which they allege give rise to the same violation of the collective agreement. They are both, therefore, dealing with the same 'matter'. There is no reason to believe that the question of the College's interpretation of the collective agreement cannot be raised and dealt with in the context of the Robson grievance, if the College applied that interpretation to her situation. Further, if the College did not apply that interpretation to her situation and has never applied the interpretation, then the question is hypothetical and of no practical significance because until it has been applied it cannot be a violation 'of the collective ~greement. The only difference between the two grievances is the fact that the Union is seeking a declaration by way of relief. In our view the fact that the Union is seeking this remedy does not change the character of the 'matter' referred to in Article 11.10. It is still a 'matter' upon which Ms. Robson ts personally entitled to grieve, and if the alleged violation is proven in her case there is no reason to believe that it will not set out the correct 12 interpretation of the collective agreement which can then be applied in ever7 other similar case. It is not necessary to consider whether the Union has established 'that the employee has not grieved an unreasonable standard that is patently tn violation of this Agreement and that adversely affects the rights of persons tn the bargaining unit'. Those tests must only be met in situations where the individual could have grieved and did not. They enable the Union to grieve matters which are properly individual grievances but which have not been grieved by the individual where, to put it bluntly, it would be too prejudi- cial to the interests of the Union and the bargaining unit to allow the matter to go unchallenged. It is likely that the parties constructed the time limits in the second paragraph of Article 11.10 to protect the Union against a timeliness argument in those situations where the individual has allowed the time limits to expire and where the Union has decided that the grievance can and should be pursued as a Union grievance. In this case the individual could grieve and did grieve; therefore, there is no need to consider whether the Union meets the criteria set out in the second sentence of the first paragraph of Article 11.10. We therefore conclude that this is not a proper Union grievance as defined in Article 11.10 of the collective agreement and that we do not have jurisdiction to deal with it. We believe that such a conclusion is consistent with the cases cited to us which deal with the question of Union grievances. In view of this conclusion it is not necessary for us to consider any of the other issues raised by the parties, and so we will not go further. For all of the reasons set out above we find that we do not have jurisdiction to determine this grievance. DATED A~ LONDON, ONTARIO ~HIS ~ DAY OF 1989. Gail Brent R. Hubert, College Nominee dissent ~., ~ ~~ ~ ~4c~anus, Union Nominee