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HomeMy WebLinkAboutWasilewski 91-12-009EC l 'BZ 16:3~ FROri PSRC COLL BRR6 PR6E,00~ DISSENT OF THE UNION NOMINEE, R.A. COCHRANE IN THE~ATTER OF ANARBITRATION ONTARIO COUNCIL OP REGENTS FOR THE COLLeCtS OF APPLIED ARTS AND TECHNOLOGY IN THE FORM O~ LOYALIST COLLEGE (h~rs!naf%~r called the "College") - and - PUBLIC SERVICE EMPLOYEES UN-/ON (FOR ACADEMIC EMPLOYEES) (h~reinaf%er called %he "union") GRIEVANCE OF LISA WA~ILEWSKI (hereinafter =a!l=d th~ "Grievor") BOAKD OF ARBIT~TION: Richard H. McLare~ K.J. Gallivan, College Nominee R.A. COchrane, Unio~ Nominee COUNSEL.FgR THE COLLEGE: Douglas Gray COUNSEL FOR THE UNION: Tan Roland THIRD PARTY INTERVENOR: Randy Godfrey DEC, 1 '9~ 1G:3B FROM PSAC COLL BDRG PAGE.888 DISSENT The grievances involving Ms. Wasilewski that came before thi~ Board could be viewed as pitting' Union - Employer interests against the interests of an individual member of'the bargaining unit. As the majority board concluded at Page 11 in its final ~upplementary award: "...w=. Wa~ilew~ki left Toronto to take up work in Beileville. She is a single parent. She i~ _. a compg~ent and conscientious teacher .... She" was caugh~ in the' jaws Of a The facts of thi~ case a~ found by ~_he Board's decisions arc not in dispute. However, the findings tha~ flow from these fa¢%~ a~ they impact on the Colleg~ suggest %hat the College never had any intent!on of hiring fihe grievor as a full-time ~mployee at any timu during, h~r employment relationmhtp. The employer'm conduct suggest~ that ind=ed ther= was something "rot%eh in ~tate of D~nmark". Did the umployer'~ conduct prior %o and following the flling of her grievance con~ti%u%e b~d faith ia the termination of her employment? I would ~uggest %ha% %ok~n as whole, the only reasonable COnclusion ~s that i% has.actud in bad faith. A review of the facts as found in the first d=cision of the Board reveals that, the employer was well aware th~ th~ continuation of Ms. Wasilewski'~ employment wa~ approaching the threshold that could make her a full-time probationary employ~e. Tc ~revent this from happening, Ms. Wasilewskl was advised while there was a continuing need for her services, she could no DEC 1 'SR 16:40 FROM PSAC COLL BARG PAGE.004 longer contiaue as a sessional mDloyee. she was advised by the employer to set up her own company and the College would emploF her company to teach at the college. The motive for this conduct could only be to prevent Ms. Wa$ilewski from becoming a full-time probationary employee. In fact, the College took the Dosition before the Board ~ha% ~his time could not be counted towards ~he requlr~m~n%? ~pecified in Appendix iii, Article 1. ~h~ arbitration board correctly found that .thi~ was an artificial way of avotdin~ th~ commitment made by the ~mployer to the Union a~ ~Decifi~d in' Appendix III, Article 1. Ci~arly the c~nducC of the employer was directed aC avoidin~ its con%ractuai r~pon~ibility to the Union and by ex%~n~ion ~o the ~rievor. The second incident which is telling on the employer's motive %owmrd~ tho g~.%~¥9~ is the manner in which thoy re~pond to thm ~rievor's request ~o bo mad~ a full-tim= probationary employee. The employer up to and including the arbitration hearings took the position that the grlevor was not a full-time probationary employee. The timing Of t~e events is crucial to determln= whether or not the employer was acting in good faith in its dealings with .Ms. Wasilewsk±. The union grievance dated October ~9, 1990 asked the College to: i. Comply with the provisions regarding posting. Remit dues from July 1, 1990. ' 3. Declare Ms. Wasilewski a full-time probationary employee effective July !, 1990. Articl~ 8.01(d) required the College to designate the DEC 1 'S~ t~:40 FROM PSAC COLL BARG PAGE,005 - 3 position as a regular full-time bargaining unit gositlon. Article 8.01(d) in requiring the College to recognize the position, requires it tO: ",..fill the position with a member of the bargaining unit as soon as a gerson capable performing the work is available for hiring on this basis." In the June, 1992 award the Board found at Page '~That language (8.01(d)) does not directly say ' that there mu~£ be a job po~%inp. It is stated in the .fashion that i% is because Article 8.01(d) refer~ %o a ~osition coming with the bargaining re~r~ to a ~er~on coming within the bargaining unit. Th~e can be ~parate or ~imul~aneous even%=. When it i~ simultaneous, as i~ wa~ for Ms. Wasilew~ki, she could have ~een confirmed as filling the position.,' In re%re,peet, this should have ended the mat~er. The ¢ollectivo agreement does no% r~quire %hn~ th~re must b~ a posting, Ther~ was.a position that came within the bargninin~ unit and Ms. wasilew~ki occupied that po~ition as a memb=r of the bargal/~l~g unit. It'~ not o choic= of ~he could have been confirmed, she had ~ right to..be confirmed, In r=~pon~e to the union's grievance dated October 29, 1990, the employer read into the grievance what it wa~ted to. It agreed to post a position but it was not prepared to concede that the griever was a full-time probationary employee, thus frustrating the simultaneous events spoken of in the Board's June, 1992 award. In fact, the position identified in the lob posting and the position coming within the bargaining unit as contemplated by 8.01(d) bore no resemblance to one another. They were two DEC 1 '9£ i~:41 FROM PSRC COLL BRRG PRGE 00S - 4 - completely different positions. Ms. Wasilewski did not compete as a member of the bargaining unit, she was treated as an outside candidate. At Page 9 o~ the June, 1992 award the Board no~ed: "The union could have sought a confirma~ion o~ her statu~ under Article 8.01(d) and declaratory relief to %hat ~ffec% as a remedy for the individual grievanc~. They didn't seek %hat application of the quoted language o£ Article 8.01(d) but rather sought a job posting." Earlier on Page 9, ~he Board found: "Th~ job posting was not a bad faith action by the College. The action itself wa~ not required under th~ contract." while the singular action of po~ting u position may no% be bad faith, %h~ ~mployer's treatment of the grievor prior %0 and subsequent to the posting, paint~ a differen~ picture. Th~ po~ting of ~ posit!on and not the position as it ~xistod whon the union filed its grlevance, appears to be an expansion of the contracted obligations contemplated by Article 8.01(d) and 8.01Ic). The Union by filing its grievance was attempting to force the employer to recognize that it had ventured into a situation whereby there was a position coming within the bargaining unit and at the saree time it was asking that the grievor be declared a full-time probationary employee. Neither %he College nor the Local Union had a right to alter Articles 8.01(c) or (d) as agreed upon by the parties to the Agreement, namely OPSEU and the Council of Regents. When the Board "The Union could have sought a confirmation of her status unde'= 8.01(d) and declaratory BEC 1 '9~ lB:4! FROM PSAC COLL BARG PAGE,00? individual grievance." That wa~, a~tuelly, %he only avenue open to the Union to meet i%~ obligution~ to fairly represent the interests of it~ member~ in %he bar~=ining unit. This is e~actly what th~ Local Union was trying to accomp!i~h when one r~ad~ th~ Union grievanc~ and tho r~lief sought, as a who!~. In %he award of December 1991, the Board suggested that th~ Untum ~ough% a Job posting rather %hah %he recourse noted above and w~nt on to ~uggest %he rationaio for uuch. a decision: "This wotl!d typically happen when this Article is operating to increase the bargaining unit independent from the operation of Article 8.01(c). However, the remedy the union sought was one which could be considered as arising within the language of Article 8.01(d). Therefore, the College's compliance with the Union's initial demand meant that when Ms. Wasllewski was not selected pursuant to the job posting procedure, she would have to be terminated unless the complement of employees was going to increase by two rather than merely one." I do not agree with the'Board's rationalization of the Union's conduct..FirSt of all when the Union filed its grievance, the only position that came within the bargaining unit as contemplated by 8.01(d) was the teaching position occupied by the grievor. There is nothing in the evidence to suggest that the Union was aware that the employer would Dost a differen~ position than the one occupied by the grievor. When one reads the grievance as a whole, the only reasonable conclusion to be drawn from the Union's actions wa~ that t% wanted the teachiD~ position occupied by .t~e grievor Post94 and %he grievor declared a full=time DEC ! '92 !6:42 FROM PSRC COLL BRRG PRGE.888 probationary employee to fill that position. One mumt remember that it i~ the employer who has the power to increase %he size of the bargaining unit and not the Union, except for the Article 8.01(d) provision. So when the Board mugg~t~ that the motiv~ for Bo=king a job po~ting was to increase the bargaining unit ind¢~mnden% from %ho op~ratioa of Article 8.01(c), it assumes, that th= Union f~l% i% could force the employer to increase the ~ize of th~ bargaining ur. it by =r~ating a position by operation of and a second position by declaring th~ ~rievor as a full-time probationary employee by operation of 8.01(c). This r~tional~ flawed in tha~ the grlevor as a full-time probationary ~mpluy== must De assigned to a position. In the grlevor's case, that position could only be the position that came within the bargaining unit by operation by 8.01(d).. on the one hand, the Board suggests that bY asking for Job posting, the 'Union's local president as an experienced union official must have known what he was doing when he requested that the j~b .be posted, if the employer failed to create the second positioa. If she was unsuccessful in competing"for the position that had to be created by operation of 8.01(d), Ms. wasilewski would be left without a position to try to complete her probationary period. This begs the question: would a seasoned a~ experienced local officer, knowing the duty of fair representation and the economic climate at the College, place the future em9loymant of Ms. wasilewski in such jeopardy on the unlikely ass~n~..ption that the college would create two positions. The DEC 1 '92 16:42 FRON PSAC COLL BARG PAGE.809 reasonable concluuion i~ that the local president would not the employer to create two position~. The purpose of the ~i~w~nce was to formali~ the teaching position occupied by the gri~¥or at the time the gri~vancc w~ filed and to confirm her in it as a full-time probationary employee. A careful readin~ of th~ Uniom grievance confirms that this is what t~e Union was asking for: "The Union grieves under Articles 8.1Z(a); lZ; Appendix III l(c) and Appendix III l(d) that t~e college has failed to Dost notice of a vacancy in. administrative studies for ~eptember 1990 and has failed to collect dues from the person hired to fill the vacancy." (Lisa Wasilewski) Exhibit' I, TaD 1. The settlement which was requested: "The. College will comply with the provisions regarding postings and will remit dues from July 1, 1990 onward. Lisa Wasilewski will be declared a full-time probationary professor effective July 1, 1990." Exhibit I, Tab 1. The Union cl~ar!y linked the po~ting of the position with a request that the ~rievor .be declared a full-time probationary employee. Instead the College created a new position, which had the effect of pre-empting any possibility of the grievor successfully completing her probationary period because her teaching position cease~ ~o exist. Appendix III l(d) clearly did not contemplate or allow for th~ po~ting of an entirely different position: DEC 1 '98. 1E;:4:3 FROM PSAC COLL E)ARG PAGE.O1E) "(d) If the college coatinues a full-time pozitlon beyoad one (1) full academic year of staffing the position .sessional appolntraents, the College shall designate positioa as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis." The position contemplated by this clause could only be, in this case, the position occupied by MS. wasitewski because it was the only position that had existed for the past lg months. She was the only sessional employee that taught for that period. Appendix III .l(d) was clearly intended to regularize a situs%ion that currently exists and had existed for at least 12 months previously. It would, in my view, be Datently unreasonable to conclude that this provision triggered a right of the employer to create a different position that had not previously existed and that was not previously staffed with sessional aDDointments, so as to avoid %he affect of Appendix III l(d). The third incident which tells against the employer and its willingne~s to giv~ ~he employme a fair chance to comple%~ h~r probationary period occurs well after the events %hat gave rise to the original grievances. The successful candidate for the position posted by the Coli~ge, in response to what the College took in its own intor¢ot to be the Union request, resigned while this grievance was being arbitrated. The College was then in %he position to recreate the position contemplated by Appendix III l(d) %hat the DEC 1 '92 16:43 FROM PSRC COLL BRRG PRGE.011 grimvor occupied when the October 1990 grievance was filed and to give her a fair opportunity to complete her grobationary period,. The employer has chosen not to take this course of action. It continue~ to take the position that it cannot be fuuited for doing what it wa~ asked to d.o by the Union. However, for the reauons ute%ed earlier, %he College did not respond to the unlon'~ request. It did no% po®t %he bargaining unit position that existed when the union grievance wa~ filed. In.~tead, it ~ook the dlffere~ut position. It die not ae¢lsre the grievor a full-ti~e probationary ~mployee ~ntitled to fill the position =he was actually filling. In fact, it disputed before the ~oard that the grtevor was a full-time probationary employee. It aid not union dues until the Board declared that ~he grievor was a £ull- time probationary employee. I~ co~sequence, the gr~evor was never given a fair opportunity to complete ~er probationary period, with the resignation of the successful .aPplicant, the circle was The employer never intended to make-the grievor a full-time probationary employee and it acted in a manner consistent with thi~ approach. Given that there is no dispute that the grlevor was a competent and conscientious teacher and the roadblocks created by th~ employer a~ .witnessed by the totality of its actions, it carunot be said %ha% the College acted in good faith in releasing Ms. Wmsiiewski as a. probationary employee. She was never given a chance, t~t ~lon~ a fair one, to complete her probationary period. could one reasonably ¢on¢lud~ tha.t ar.~ employer who ha~ acted so stre;B~ously to avoid recognizing the grievor a~ a full-tim~ probationary employee be said to have acted in good faith in releasing her while on probation.. In the 0PS~U vs. st. Lawrence fDllege, the Court noted: "It is clear from Council of Printing Indus,.ties (1983) 42 OR (Sd) 404 that different language in a different agreement read as a whole might Droperly be l~terDreted as giving a Board jurisdiction to consider good faith, in a sense broader than that u~ed in Metropolitan Toronto, as the subject of a grievance. Having regard %o the language of ~his agreement, we think this is · u~h a case," The A~reeme~t mpoken of in %he Court's decision is the samm coll¢c~iv~ agreement before thi~ Board. In lt~ =ub:~equent deci~io~, in OPSEU vs. St. Lawrence CO~, the Board of' Arbitration reviewed the employer'~ conduct in !lght of the Court's decision. At 9a~e 3 of that Award, th~ Board noted= "we therefore consider that the DiviSional Court has dire.cted us to con~i~er whether er ~ot in exercising its obliga%ion~ under 8.01(c), the Coll.ag~ ~xerci=ed its power under thia urt'icle on a rea=onubi~ b=~l~ and without bad faith, dl~¢rlmina~ion or arbitrariness. we believe that %e~t i:~ what %he Court was r=f=~ing to whe~ it directed us "to cons£der good faith, in a $~n~= DEC 1 '~£ 16:44 FROM PS~C COLL BRRG P~GE.Oi2 - 11 - than that used in M~tropoiitan Toronto", which looked only illegality or obstruction in connection with a man~gement,~ right~ clause." Ih tb.e instant case, Ms. Wasilewski was never given the opportunity tO be assessed against the code of conduct and po~itiv~ obligations set out in Article 8.01(c) because the employer did everything it could to prevent her from becoming a full-time probationary employee. As evidenced by Exhibit I, Tab ~, the Coll~ge took the position that she c~a~d to be an employee at the end of the sessional appointment, If the Union was correct in its assertion that she was a full-time probationary employee, then the letter was to be read as an official notice of termination during her probationary period. I would note that there are no reasons given for the termination.of 'her probationary status. No evidence that her work' was unsatisfactory and there was no evidence of periodic evaluations, There was evidence that the grievor was a competent a~d conscientious teacher. N~. wast!ewski was declared a full-time probationary empioy~e by ~he Board after %he fact. In my view~ in considering the question of whether or the termination of th~ grievor was made in bad faith, one must address %he question of whether %he probationary .period wa~ administered in good faith. ~ow could this possibly be, when the ~loyer fou~h~ the l~gittmacy of her status all %he way to ~his Board and se%ting up roadblocks to prevent her from gaining this employment with the College? Ex~ended Page 12,1 ..... Clearly the employer, is entitled to create as many positions as it feels necessary, but it cannot use its authority in %hi~ regard to avoid creating position~ required by the collective agreement e.g. Appendix III l(d) and awoi~ its responsibility to administer the probationary period in good faith. For ~hese reasons I would have allowed the ~rievance and ordurcd her rcinutat~mcnt with full compensation and retain jurisdiction on %he amounts owing. ~,"' ~ ~., ~.~.. ............ K.A, Cochrane. · * TOTRL PRGE.O18 *~