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HomeMy WebLinkAboutUnion 97-11-10AND IN THE MA'FI'ER OF the arbitration of the grievance BETWEEN: Humber College of Applied Arts and Technology and - Ontario Public Service Employees Union PLACE AND DATE OF HEARING: Toronto, Ontario, October 31, 1997 BOARD OF ARBITRATION: Sherrill Murray R. J. Gallivan Stanley Schiff, chairman APPEARANCESFOR THE EMPLOYER: Hyacinthe James, human resources manager Larry Florou Ross Dunsmore, counsel APPEARANCES FOR THE UNION: Lois Pineau Robert Mills Nelson Roland, counsel AWARD AND REASONS ON PRELIMINARY OBJECTION This union grievance is brought under the academic staff collective agreement. At the opening of the hearing the College objected to arbitrability on three grounds: first, the union through its counsel had allegedly not honoured an agreement to supply certain particulars of the grievance; second, the grievance does not satisfy the require- ments for a union grievance set out in the first paragraph of art. 32.10; and third, whe- ther valid or not under the first paragraph, the grievance was brought beyond the time limit in the second paragraph. During argument, the College abandoned the first ground. The Statement of Grievance in the grievance form says this: OPSEU Local 562 grieves that the College is in violation of the Collective Agree- ment by classifying as Support Staff employees who are performing duties that fall within the class definition of professor. The Settlement Desired is this: 1) Reclassify the above-mentioned employees as professors with the corre- sponding salary and workload to be effective from the date of hire. 2) The College cease hiring support staff to perform duties that fall within the Academic Collective Agreement. From the documents filed and what counsel have said to us, we see that the grievance involves employees classified under the support staff collective agreement as Techno- logists B who perform duties in various courses given in the Nursing faculty. The union's position is that, because of the nature and extent of the duties, the employees should be classified as professOrs under the academic staff agreement. As the parties before us agree, it does not matter that the employees involved started subject to another agreement. Under the awards a claim to come under the um- brella of a particular agreement is arbitrable even when made by someone the employer says is outside any agreement: if the claim is right, the grievor should have been under the umbrella despite what the employer said and did. The opening two sentences of art. 32.10 define the kind of grievances the union may bring. The first sentence gives the union authority to grieve any difference arising from the agreement. The second sentence then drastically cuts down that authority. A grievance coming within the first sentence is alright only if One or other of two conditions is satisfied: first, the grievance does "not include any matter upon which an employee would be personally entitled to grieve", and second, if the grievance does include such a matter, "the Union establishes that the employee has not grieved an unreasonable start- dard that is patently in violation of this Agreement and that adversely affects the rights of employees." The language of the provision and the awards are clear that, to have the second condition satisfied, it is up to the union to persuade the board that each of the elements exists. So, to satisfy the second condition, the union must show us that (1) there is a "standard" the union is grieving, and (2) the standard is "unreasonable", and (3) "the employee has not grieved [the] standard", and (4) the standard "is patently in violation of [the] Agreement", and (5) the standard "adversely affects the rights of em- ployees." We look at the first condition: the grievance must not "include any matter upon which an employee would be personally entitled to grieve". Here we see no reason that any of the affected employees could not have grieved the matter. The fact that none did because the time limited in the agreement for grieving ran out first, as the College sug- gested, does not allow the union to grieve in the employees' place. At all events, the union has argued that the grievance is a continuing one and, if so, that might solve any problem of time bars for individual grievances. This we need not consider or decide. The union fails under the first condition. We turn to the second condition. We conclude that the union also fails here. As we read the grievance form, even without the repetition and elaboration in documents counsel filed, the union does not challenge any "standard". It follows that there is not, and cannot be, a challenge to an "unreasonable" standard or one "that is patently in violation" of the agreement, and so On. Looking to dictionaries for help we define "standard" in this context to mean a specified measure or criterion of endeavour or adequacy. What the union says at most is that the employees in the particular Tech- nology B positions are doing work at the standard of a "Professor" as set out in the Class Definition in Section II of the Job Classification Plans of the collective agreement: according to the union, their work in the jobs they are actually doing meets that criterion of endeavour or adequacy. Far from attacking the standard as the second condition re- quires, the union adopts it for the purpose of the grievance. And, adopting it, the union cannot - and does not - say that it is "unreasonable" or "patently in violation of this Agreement" (even assuming that arbitrators would ever hold that a standard the parties agreed to put into the collective agreement could be unreasonable or otherwise in viol- ation of the agreement). If there is to be a challenge to some standard on the facts as we know them, it might be brought under the support staff agreement and might be to the level of performance expected of Technologists B in the jobs they do in the various Nursing courses. A grievance under that agreement could not, of course, get the em- ployees the reclassification as professors under the academic staff agreement the union seeks in this grievance. In the circumstances, we do not discuss the timeliness of the grievance. The College's preliminary objection is allowed. The grievance is dismissed as one the collective agreement does not allow the union to bring. DATED at Toronto this 10th day of November, 1997. c.--,-~ ~-.-~_-c--, .... Sherrill Murray This member dissents from the majority. It was understood from the outset that an individual had not grieved that they were performing work of the academic bargaining unit and classified as members of the support group, thus satisfying the first of the numerous criteria, a.k.a, obstacles, the Union must overcome in order to police the integrity of the bargaining unit. The filing of the instant grievance is merely the beginning of the Unions attempt to establish that the college is conducting business inconsistent with the collective agreement. The Union has alleged that the college is setting a standard that is patently unreasonable, specifically, hiring non- bargaining unit members to teach. How much more blatant a violation of the integrity of this collective agreement can one fred. ? That allegation, if true, is precisely the unreasonable standard (basis) that is patently in violation of this agreement. The Chair has designated the meaning of "standard "improperly. "Standard" also bears the meaning of regular, basis, emblem or support; its synonyms basic, normal, typical sample, stock, regulating or approved. The loss of work to that bargaining unit is the result of hiring non barg- aining unit members to teach, wh/ch adversly affects the employees. It is extremely premature at this point, wi~,bOCt the benefit of the merits of the issue to determine whether or not the collective agreement has in fact been breached. To prohibit the Union from attempting to protect the integrity of the bargaining unit is both unfair to the Local and inconsis- tant with its obligation to its membership. Further a premature dismissal of the issue on such narrow, rigid and mistaken grounds further hampers the parties from addressing the tree problem. The altogether bizarre result of this award is to compel the Union to muster all of its evidence to deal with the preliminary objection, and place numerous extremely lengthy, written grievances before the panel in order to have a complaint heard. Is that really what these parties negotiated? This board also sees no need to answer a question placed squarely before the panel. Timeliness. Everyday a person not in the academic unit who otherwise meets the criteria of inclusion in that unit performs the work of that unit, is in this members opinion, entitled to grieve that the violation is of an ongoing nature and thus within the time requirements. This Board could have and should have dealt with and dismissed the employers' objection to the timeliness of the grievance. ! strongly disagree with the majorities' interpretation of the facts as measured against the language and would have allowed the parties to present the merits of the case. In this members opinion, only after full evidence of the duties and responsibilities of the persons alleged to be performing duties of the academic unit, can a Board determine if the employer is indeed engaged in activities in patent violation of the agreement. Thus, the decision of this Board should have been to reserve on the preliminary issue and allow a full heating of the Union's grievance. shen'ill Mun'.ay ~ ~.