HomeMy WebLinkAboutGrogan 92-12-10HEADNOTE
OPSEU(~Grogan) vs. Humber College
L. 562 OPSEU file# ..... ~. ~/F~J~'-*_l_~'/~/~_-~//~/_
The issue in dispute arose out of the College's decision to
remove a special two-step salary allowance paid to the
grievor continuously for 7 years after he had been removed
from job entitling him to the allowance in the first place.
The grievor was transferred from a Senior Co-ordinator
position which received the two-step allowance in 1984 to
a regular teaching position for which, under the Collective
Agreement, the allowance would not normally be paid.
The union argued that the timing of the discontinuance of
the allowance was suspect as it coincided with certain
union activities engaged in by the grievor. It was further
argued that as the College had relied on the fact that the
grievor did not suffer any loss of compensation as a result
of the reassignment in 1984 to succeed in a previous
arbitration involving the reassignment, removing the salary
allowance now is punishment for engaging in union
activities contrary to the Collective Agreement.
HELD: The grievor has not the performed the duties
deserving of the two-step allowance for 7 years, the
grievor has been a union activist throughout the period and
the employer gave considerable notice that payment of the
allowance would be terminated. LOST.
GL
IN THE MATTER OF AN ARBITRATION
BETWEEN:
HUMBER COLLEGE
The Employer
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
The Union
AND IN THE MATTER OF THE GRIEVANCE OF J. GROGAN -- OPSEU FILE NO. 915805
Board of Arbitration: D.D. Carter, Chair
J.G. Campbell, Employer Nominee
B. Switzman, Union Nominee
Appearances for the Union: G. Leeb, Grievance Officer
J. Grogan, Grievor
Appearances for the Employer: D.L. Hewat, Counsel
R. Hook, Vice-President, Instruction
T. Fletcher, Chair, Business Administration
H. James, Consultant, Human Resources
A hearing in this matter was held at Toronto on September 29, 1992.
AWARD
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This grievance alleges that the employer improperly withdrew the two-step SPC salary
allowance that the grievor had been receiving for some years. The union asks that this allowance
be reinstated retroactive to September 1, 1991, and that the grievor be awarded interes! on any
monies owing since that date. Prior to the hearing the parties were able to agree upon the following
facts:
1. The grievor, Joe Grogan, has been employed in an instructional capacity at
Humber College continuously since September 1969.
2. Effective 1 January 1975, the grievor was assigned the duties of a Co-
ordinator at the Centre for Labour Studies for which the grievor received a
Co-ordinator's allowance pursuant to the Collective Agreement in effect at
that time.
3. Effective 1 June 1976, the grievor was appointed to the position of Director
for the Centre of Labour Studies. The Director position was excluded from
the bargaining unit due to its managerial duties.
4. The grievor was never comfortable with the exclusion from the bargaining
unit and persisted in arguing that his position and his work with the trade
union movement in connection with the Centre made it imperative that he
too be a member of a trade union.
5. Discussions between the grievor and the College regarding his return to the
bargaining unit ensued. The President of the College was involved in the
discussions and agreed on September 10, 1981, to recognize the grievor's
academic bargaining unit status.
6. Eventually, a grievance was filed, the matter proceeded to arbitration on
September 28, 1982, and an award was issued on November 24, 1982, by
a Board chaired by Mr. McLaren. By the time of the hearing the College had
agreed to return Mr. Grogan to the bargaining unit. The real dispute
between the parties dealt with in that award concerned other matters.
7. Effective 1 September 1982, the grievor returned to the bargaining unit as
a Senior Programme Co-ordinator (SPC} at the Centre for Labour Studies.
The grievor's appointment and acceptance of the duties assigned were
confirmed in a letter dated January 5, 1983 from the College.
8. Aa a Senior Programme Co-ordinator with specific responsibility for
organization of the Centre, the grievor received a special salary allowance
equivalent to two (2} steps of the salary grid as provided by the Collective
Agreement - see for example the current Collective Agreement - Appendix
I Guidelines 5(b}.
9. Effective 19 April 1984, th~ College removed the grievor from the Senior
Programme Co-ordinator position. The grievor grieved the College's actions.
10. The grievor assumed regular teaching duties as of August 1984, with no
additional Co-ordinator duties.
3
11. Following eleven (11} days of hearings, a Board of Arbitration chaired by
Ms. Brent released s decision dated 8 April 1987, dismissing the grievance
referred to in paragraph 9. i
12. A copy of the Brent decision is attached as Exhibit A.
13. Notwithstanding the reassignment of the grievor's duties in 1984, the
grievOr continued to be paid the two (2) step SPC salary allowance up until
31 August 1991. The grievor was advised by memo from the Dean of
Business dated November 30, 1990, that the SPC allowance would cease
prior to commencement of the 1991/92 academic year.
14. The grievor has not been assigned nor performed Senior Programme Co-
ordinator duties since April 1984.
15. It is not alleged that the College in ceasing to pay the grievor a two (2) step
salary allowance has disciplined the grievor.
16. Rather, the Union contends that the removal of the salary allowance is a
form of punishment contrary to Article 2.01.
Article 2.01 of the collective agreement provides:
2.01 The Colleges and the Union agree that there will be no intimidation,
discrimination, interference, restraint or coercion exercised or practised by either of
them or their representatives or members because of an ..employee's membership or
non-membership in the Union or because of an employee's activity or lack of activity
in the Union or because of an employee's filing or not filing a grievance including
participation in the workload complaint system.
At the hearing, additional evidence relating to the alleged violation of article 2.01 was
introduced by both parties. The grievor testified that, over the years, he had come to regard the
two-step allowance as an integral part of his basic salary and had counted upon this additional
money in planning his personal budget. It came as an unpleasant surprise, therefore, when he
received a memorandum from the College dated November 30, 1990, advising that the allowance
would be terminated prior to the 1991-1992 academic year.
Fr'om the grievor's perspective the timing of this memorandum was suspect, since just three
days earlier he had presented a brief to the College's Task Force on Violence that had been critical
of the College's adminstration, both in respect of recent lay-offs of full-time faculty and in respect
of what he regarded as the College's failure to address the cultural, racial, and ethnic diversity of
Canadian society. On May 23, 1991, he received a further memorandum specifically advising that
the allowance would be discontinued as of September 1, 1991. This memorandum was received
hard on the heels of his election as the union's health and safety representative.
The grievor further testified that he had been an active and vocal union member ever since
he joined the college's faculty, Not only had he actively advised other union members of their
rights, but over the years ha had filed at least six personal grievances .and taken three of these
grievances as far es arbitration, The grievor testified that, in his opinion, the unexpected removal
of the two-step allowance was not merely~ coincidental but had a direct connection to his union
activism. Moreover, in his view, the removal of the allowance was inconsistent with understandings
that had been reached after he had been removed as Senior Programme Co-ordinator at the Centre
for Labour Studies in 1984.
The College witnesses painted a different picture of the removal of the allowance. Richard
Hook, the College's Vice-President Instruction, testified that the removal of the grievor's allowance
was the result of the application of a general policy to restrict the payment of such allowances to
those faculty who were no longer performing the additional responsibilities for which these
allowances were intended. The implementation of such a policy, according to Hook, had been
discussed as early as 1988, but its actual application had been delayed by the faculty strike of
1989. In the spring of 1990, however, it was decided to proceed with the policy in order to correct
Certain anomalies that did not reflect to the College's present organizational structure. Hook
testified that the grievor was only one of five faculty members affected by the policy and, being the .
last of the group to have his remuneration adjusted,had received as much, if not more, notice than
the other members of this group.
Toby Fletcher, Chair of Business Administration, testified to much the same effect. As
author of the May 23, 1991, memorandum, he explained that it was simply his intention at the time
to provide the grievor with sufficient notice of the change in remuneration. Ha described the grievor
as a dedicated faculty member and characterized his relationship with the grievor as good.
Our assessment of the totality of the evidence is that it does not support a conclusion that
the removal of the allowance was in any wes retribution or punishment for either the grievor's brief
5
to the Task Force on Violence or his election as a union health and safety representative. The
grievor had a long history of union activism and there was no evidence that his past union activities
had ever attracted improper employer interference. The grievor's brief to the Task Force on
Violence and his election as · union health and safety representative appears to be just an extension
of an existing pattern of union activism. Therefore, it is difficult for us to see how these more
recent activities would be any more likely to attract employer retribution than any of his past union
activities.
The thrust of the union'S argument, however, was that the removal of the allowance had
subverted the factual foundation of an earlier arbitration award dealing with a different grievance
brought by the grievor. The effect, according to union counsel, was to interfere with the grievor's
rights contrary to article 2.01 of the collective agreement. It was argued that the majority award
that had dismissed the earlier grievance rested upon a factual finding that the grievor had not
suffered a loss of any salary classification, rank, seniority or benefits. Based on this finding the
majority had concluded that the College's actions amounted to a transfer of the grievor rather than
disciplinary action. The removal of the allowance in September 1991, according to the union, had
effectively subverted the factual foundation of this arbitration award contrary to article 2.01 of the
collective agreement..
This argument certainly stretches the scope of article 2.01, raising the issue of whether the
subversion of an earlier arbitration award is the type of conduct prohibited by this provision. Given
the facts before us, however, we need not resolve this issue of contract interpretation. More than
seven years have passed between the events underlying the earlier arbitration award and the
discontinuance of the allowance in September of 1991. Given the passage of this amount of time,
it is reasonable to assume that, even if the incident underlying the earlier arbitration award ha'd not
occurred, changes in the College's organizational priorities, sources of financing, and management
structure might well have resulted in the removal of the grievor's additional responsibilities at some
point during this seven year period for reasons not connected to discipline. Therefore, in the
absence of any clear and exl)ress agreement contemplating the indefinite continuance of this
allowance, it is reasonable to conclude that over the passage of time the grievor's situation had
evolved into a true anomaly, placing him in the same situation as the other four faculty members
who were not longer performing the additional duties for which the allowance was paid. The
employer, having provided the grievor with substantial notice of its intentions to correct this
anomaly, cannot in these circumstances be held to have violated article 2.01, assuming even the
broadest interpretation of this provision.
Accordingly, for these reasons, this grievance is dismissed.
Dated at Kingston this 10th day of December, 1992.
~~.D. Carter, Chair
I concur J.G. Campbell, Employer Nominee
See addendum B. Switzman, Union Nominee
'tM '11! II&~TBR OF Z~ ,BulB'Z2'IK~TZOII
{the #C}eXlege,, )
o~r~&RZO ~IZ, ZC IBI~X~ I~I'LOI'IBI UMXO~
(the #Uaion" )
On the whole, X cannot say that the decision o£ the Chair
ia unreasonable. However, ! wish to comment on one aspect of the
award.
Hr. Fletcher, Hr. Oro~an's immediate supervisor, Bade the
decision to demote the griever. Xt is my concern that Mr.
Fletcher's decision was baled upon £aulty info~ation.
Mr. Fletcher stated that he became Chair of the
Management Studies Department in September 1088. At that time, he
thought he had three Pr~ram Co-ordinator, but f~und out that he
had a Zourth - J~e Grog&n, she was classified end paid as a Senior
Programae Co-ordinator (8.P.C.).
When Hr. Fletch4r d%oc~aaod thio matter with Human
Resources' and has supervisors, the only docaulnt he was provided
was the letter or o~f~raatA~ of the I.P.C. po~ltton for Mr.
Groqan dated January 5, 1083, and signed by College President
Robert Cordon. However, Mr. Fletcher testified that when he made
the decision to denote Mr. Grogan~ he vas con, lately unaware of the
Ceil ~ arbitration decision involving Mr. Gresen dated April 8,
1987.
Yet, it ia within that award that oan be found tbs
r~.4~n~ for ~ro~an keepir~ his 8.P.C. allowancs for all of ~hess
co~i~int to naint&in ~ro~an~l wages, bena~its and status. As
found in ~r. ~aJssky's letter on page 25 of tho Brant Award:
We did this with tho full knowledge and
~ fron t~ Collie tha~ ~ Or~an
would not ~ dioc~plin~ or~ ~n any way
and that he would be ~a~9~w.~thtn~m~
classifies:ion. (e~iois added)
situation ~ho College faoed in 1~84, it created an anoualous
~os[tion for ~r. 9rog&a. While his o~s~if~c~t~on, wages and
benefits oon~inu~hio ac~ull I.P.C, ~ti~t wo~ ~~. N~
~.i.~+. were ~er set by the ~li~o for h~ 1o~ ~i. arzang~n~
weo to laot.
~irmgorl; Z wo~d h~ :hit M~. Fie:shat would rlview
the co~~n~8 uedo by the Coll~o M=. ~r~on in ~084. Surely,
an honourable mettlmnt of the Cello's 1984 undertakings ought
~o be carrAed out Afl a ~oA~o a~ fair ~nnor. I am con~Adon~
accommodation ~an be
I would have awarded that Nr. cre~j&n'u S,~.C. va~e allowance I~
continued until a proper review of this 1904 undertaMinq had been
completed.
DATBD AT TO~ONTO, thim 10th day of December, 1992.
Union Noninee