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HomeMy WebLinkAboutUnion 91-06-17BETWEEN: MOHAWK COLLEGE (Hereinafter referred to as the College) ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (Hereinafter referred to as the Union) AND IN THE MATTER oF~UNIoNi:GRIEVANCE REGARDING DUES {OPSEU FILE 90E107) BOARD OF ARBITRATION: Gall Brent R. Hubert, College Nominee Ed Seymour, Union Nominee APPEARANCES: FOR THE COLLEGE: Stephen K. Bantoft, Dir. of Human Resources Zaki Ullah, Assistant Dir. Human Resources FOR THE UNION: Paul Cavalluzzo, Counsel Bill Kuehnbaum, Union Representative Hearing held in Hamilton, Ontario on June 5, 1991. DECISION The grievance, dated November 20, 1990, which the Union placed before us (Ex. 2) alleges a violation of Article 12 in that the College has not deducted the proper amount of Union dues. There were no objections concerning the arbitrability of the grievance or our jurisdiction to hear and determine it. This is a rather unusual situation. There were members of Local 240 present who have filed two grievances: one a personal grievance by Bob Pando, and one a Union grievance on behalf of the Local. The Union did not place those grievances before this board and indicated that the disposition of this grievance should resolve, the other two. The members of the Local present did not agree. 2 The parties did not call witnesses. There was no disagreement on the relevant facts, which were described to us by both parties. The Union, at its May, 1990 convention, increased Union dues and also alleges that it increased the cap on those dues (see Ex. 8). In the normal course of business it advised the employers with whom it has bargaining relationships of these increases. The notification to the College through the Ontario Council of Regents was given on May 15, 1990 (Ex. 3). The relevant portion of that notice, insofar as this dispute is concerned is contained in the second paragraph and is set out below: ALSO, EFFECTIVE JULY 1, 1990, THE MAXIMUM DUES PER WEEK HAS BEEN INCREASED FROM $11.50 TO $13.50 .... Sometime around July, 1990 the Local at the College objected to the dues increase, alleging that the resolution passed at the convention did not refer to or increase the cap to $13.50. There are four hundred locals of the Union, and this is the only one which has taken that position. The Union explained its position to the Local; however, the Local did not accept it. The Local then informed the College of its objection and asked the College to continue to regard $11.50 as the maximum dues deduction using the new formula (see Ex. 9). The Local apparently convinced Stephen Bantoft, the Director of Human Resources, that it was correct in its interpretation of the Union constitution and/or resolution. On September 27, 1990 the College wrote to the Union (Ex. 4) indicating the Local's position and asked the Union to settle the matter with the Local. The letter also indicated that the College would accede to the Local's request should the Union not be able to resolve the matter. The Union replied on October 15, 1990 (Ex. 5) setting out its position as follows: This is in reply to your letter of September 27, 1990 in which 3 you raise the question of the proper dues formula for your college. As discussed with you, the dispute about the correct dues formula is an internal one which the union will resolve in due course. In the meantime, the only question you need to decide is whether or not "the union" as set out in the collective agreement between the parties has authorized a change in the dues formula. The union for the purpose of this matter is the Ontario Public Service Employees Union not Local 240. Under our constitution the supreme governing body of the union is our Annual Convention at which all major decisions, including the one dealing with a change in dues formula, are made by voting delegates. Between Conventions the supreme governing body of the union is the Executive Board. You have received notice from the Director of Finance, on behalf of the Executive Board that the dues were to be adjusted in a certain manner. Your reading of the convention motion may or may not be correct but what counts is what the union, that is, the Convention of the Executive Board, advises is the correct interpretation of that motion. I understand your desire to maintain an ongoing relationship with the local and I also understand your desire not to get drawn into this dispute. The only way in which you can achieve these objectives is to carry out the wishes of the union as expressed by the Executive Board. By so doing you are able to maintain your ongoing relationship with the local by advising them you are acting in accordance with information received from "the union" for the purpose of dues deduction formula changes. You will also meet your objective of not getting drawn into this dispute because in meeting "the union's" request you will oblige the local and the central union to resolve this issue without your getting involved. Finally, if you proceed with your expressed plan of implement- ing your version of the dues formula change you will be drawn into the dispute because you will force the central union to take appropriate legal action and you will be harming the relationship of 4 the employer with the union. In the light of all the foregoing, I urge you to act on the letter from our Director of Finance. In any event, I will wait two weeks from receipt of this letter for your reply in the affirmative failing which I will undertake the action necessary to see that the correct dues formula is in operation at Mohawk College. If you wish to discuss this matter further, please contact me as soon as possible. On October 23, 1990 the College wrote to the Union (Ex. 6) indicating that it had also been advised by the Local that it would grieve if the College implemented the increased dues cap. It also in£ormed the Union that it proposed to deduct using the new cap, but to remit to the Union only the amount that would have been deducted using the old cap, retaining the difference in a separate interest bearing account pending resolution of the dispute. The College also indicated that it would be asking for costs to be awarded. The College has deducted as it said it would in Exhibit 6 (see Ex. 7). The Union then grieved the failure to deduct and remit the proper dues. The Local and Mr. Pando also grieved the failure to deduct proper dues. After hearing these facts and the College's position that we should hear all three grievances because the joint Union Management scheduling committee had assigned all three to us, the board retired to consult. Following this consultation the board informed the parties that the only grievance placed before us was the. one filed by the Union, and that the other grievances involved what appeared to be internal differences between the Local and the Union regarding its constitution over which we had no jurisdiction, the proper forum for which being either the internal mechanism of the constitution or the courts. We note for the record that the Local did not agree with this position. The Union relied on the clear language of Article 12 and the collective 5 agreement which recognizes it, not the Local, as being the party referred to in the collective agreement when "Union" is used. It also referred us to Re United Steelworkers of America and Macassa Gold Mines Ltd. (1969), 20 L.A.C. 75 IBrown) as authority for the proposition that the College had to comply with the Union's direction regarding dues and not rely on any internal dispute between the Union and its membership to withhold dues. The College indicated that it was caught in the middle of the dispute and was informed that there would be a grievance regardless of what it did. It asked for its costs and also indicated that Article 12.02 specifically refers to the Union's constitution and so it had to respond when a clear violation of the constitution was brought to its attention. The Union indicated that Article 11.04 provides that the costs of the hearing should be divided equally and that this reflected the Colleges Collective BarGaininG Act. It also said that it would argue strenuously about the awarding of costs to a party who was found to be in violation of the collective agreement. The relevant portions of the collective agreement are set out below: MEMORANDUM OF AGREEMENT, effective the 28th day of November, 1989 BETWEEN THE ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY acting ... on behalf of Colleges of Applied Arts and Technology (hereinafter referred to as the "College" or "Colleges") -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (hereinafter referred to as the "Union") 11.04 ... (e) The College and the Union shall each pay one-half the remuneration and expenses of the Chair of the Arbitration Board and shall each pay the remuneration and expenses of the person it appoints as arbitrator. 6 12.01 There shall be an automatic deduction of an amount equivalent to the regular monthly membership dues from the salaries of all employees in the bargaining unit covered hereby. 12.02 Regular monthly membership dues shall be in the amount established in accordance with the Union's Constitution and By-laws and may include an amount for the Union Local which has also been established in accordance with such Constitution and By-laws. The Union shall advise the College in writing of the amount (including the Union Local portion) to be deducted. 12.03 The amount so deducted shall be remitted to the Union Head Office and the Local Treasurer in the appropriate amounts in accordance with and subject to the conditions set out in Section 54 of the Colleges Collective Bargaining Act, 1975 .... 12.04 The Union agrees to indemnify and keep the College harmless from any claim by any employee arising out of the deduction arrangements set out in this Article. A board of arbitration is the creature of the collective agreement, and its jurisdiction is limited to hearing and determining disputes arising out of the collective agreement. In our view the only way in which the Union's Constitution would be open to interpretation by a board of arbitration would be if Article 12.02 incorporated that document into the collective agreement by reference. There is a world of difference between referring to an external source as the authority for something and incorporating that external source into the collective agreement as part of the agreement. To do the latter would require clear language from which could be discerned the intention of the parties to make the document a part of their collective agreement, as if they had written it in whole into the agreement. Such is not the case here. We consider that in Article 12.02 the parties simply agreed that the Union's Constitution and By-Laws would be the lawful authority for making the deduction. It does not give outside parties, either the College or a board of arbitration, the right to determine if the Union's interpretation of its Constitution and By-laws is correct. The operative question is what was the ? Union's interpretation of its Constitution and By-laws as relayed to the College. The Union referred to in the collective agreement is the Ontario Public Service Employees' Union and not the Local. Article 12 makes a clear distinction between the Union and the Local which is consistent with the usage adopted by the parties. The Union's implied obligation is to notify the College of the amount of dues which it says has been authorized by its Constitution and By-laws, and the College is entitled to rely on that as the authority for making the deduction indicated. If the Union's Constitution and By-laws have been violated, that is a matter for the Union membership to deal with according to the procedures set out in the Constitution and perhaps through the courts. The College is an outside third party when it comes to internal Union affairs and can rely on the official notice of the Union as its authority for deducting the amounts indicated. In this instance the College has clearly not complied with Article 12 in that it failed to remit to the Union Head Office the full amount deducted. Article ll.04(e) clearly obliges the parties to share the expenses of the chair and to pay for their own nominees. Under the circumstances of this case we feel constrained to invoke that provision as preventing us from ordering any different distribution of expenses. Further, as the Union indicated, it would be most unusual to award any costs to the party who has violated the agreement. As we indicated at the hearing, we can appreciate that the College con- sidered itself caught between disputants, and it may have been unable to avoid one hearing. We expressed our strong view to the parties that the College should not have to incur the expense and inconvenience of another arbitration / ¥ 4 does not happen. The Union by choosing to proceed with one grievance only is obviously of the view that the disposition of this grievance can settle the matter. If it does not, and if the other grievances are taken to arbitration, then that other board of arbitration may well be inclined to find that the Union bears the responsibility for that action and should indemnify the College for the expenses it is put to. For all of the reasons set out above, the grievance is allowed. The board declares that there has been a violation of Article 12 and that the College is obliged to deduct and remit to the Union the amount indicated by the Union as being authorized by its Constitution and By-laws. The board further orders that the College remit to the Union forthwith all monies owing as a result of the failure to remit the proper dues. We will remain seized of the matter should the parties not be able to agree on the amounts owing. DATED AT LONDON, ONTARIO THIS ~Q["DAY OF ~ , 1991. Gall Brent I concur / d~t R. Hubert, College Nominee I concur / xli~3~c Ed Seymour, Union Nominee