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HomeMy WebLinkAboutPando 91-10-03 MOHAWK COLLEGE (The College) ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF R. /PANDO (NO. 91B251) BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIRMAN SANDRA NICHOLSON, UNION NOMINEE R.J. GALLIVAN, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: S.K. BANTOFT, DIR. HUMAN RESOURCES APPEARANCES FOR THE UNION: M. BEVAN, GRIEVANCE OFFICER FOR THE GRIEVOR: R. PANDO AND OTHERS A HEARING IN THIS MATTER WAS HELD AT HAMILTON ON SEPTEMBER 19TH, 1991. AWARD - 1 - The grievance which was the subject of this hearing was filed by Mr. Pando on October 20th, 1990. The claim is that the College is deducting Union dues in an amount not consistent with the Union's constitution and withholding Union dues of 1.325% of salary to a maximum of $13.50 per week. The complaint is that the Union at its May 1990 convention increased the cap on the dues from $11.50 to $13.50 a week. The grievor objected to that increase and requests the College to deduct the lower amount. This exact issue arose between the parties in a grievance dated November 20th, 1990 by which the Union claimed a violation of Article 12 of the Collective Agreement in that College had not deducted the proper amount of Union dues. At the same time, members of Local 240 filed a Union grievance for the Local and in addition, Mr. Pando filed an individual grievance which is now before this Board. This referenced dispute was dealt with at an arbitration hearing in Hamilton on June 5, 1991 by an arbitration board chaired by Gail Brent. That Board issued an unanimous decision on June 17th, 1991 as follows: "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." That Board dealt with the same facts and the same issue applicable to the Pando grievance. At page 4 of that award the Board stated: "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 whioh 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." At pages 6 and 7 of that award the Board stated in part as follows: "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.. . 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 that the Union's interpretation of its constitution and By-Laws is correct. . . The Union referred to in a collective agreement is the Ontario Public Service Employees Union and not a Local . . . 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 grievances which were placed before that Board included the grievance which is referred to the present Board. The Brent award dealt with all of those grievances and with the facts and issue in dispute. There is no basis therefore for this Board to proceed on an individual grievance which has been dealt with by the Brent Board and the substance of the complaint has been determined in its award. It is the same issue, the same facts, the same parties, the same collective agreement involved in the Brent award and the Pando grievance so that the reasoning and findings therefore apply equally in the present circumstances. There is no basis for this Board not to apply the Brent decision. The Board's jurisdiction is therefore limited to the application of that award. At the hearing, Mr. Pando made submissions concerning the application of Article 11.05 (h) of the collective agreement concerning his right to present his grievance and his objection to the attendance of a Union representative other than a Steward. The Board heard initial submissions from Mr. Pando and Mr. Bevan concerning that issue and reserved its decision on that preliminary objection. The Board having considered all of the issues concerning the grievance before it, found for the reasons set out above that it is not necessary for this Board to deal with the application of Article 11.05 (h). At the hearing Mr. Bantoft made submissions to the Board concerning costs to the College as it was caught in the middle of this dispute. The Board does not have the authority under the terms of the collective agreement to award costs which issue was dealt with in the Brent award. The.Board does have reference to the following article: "12.04 - The Union agrees to indemnify and keep the College harmless from any claim by an employee arising out the deduction arrangements set out in this article." This is the extent of the Union's obligation to the College with regard disputes of this nature under which the College may make its claim to the Union. This Board does not have the authority in the circumstances of this case, to make a specific determination of amounts of indemnification, if any, which may be sought by the College. That is a matter arising separately between the parties and is enforceable by the application of the collective agreement. The Board ruled orally at the hearing that as it did not have jurisdiction to proceed in this matter, the proceedings were terminated and we so award. DATED AT OAKVILLE, THIS ~ DAY OF OCTOBER, 1991. /~'~.'~ OWARD D. BROWN, CHAIRMAN SANDRA NICHOLSON, UNION NOMINEE R.J. GALLIVAN, COLLEGE NOMINEE