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HomeMy WebLinkAboutAnderson 90-12-16 ~ ¥~.,? '(~.NTARIO }:~.U'BLIC SERVICE EMPLOYEES" UNION .. - GRIEVANCE OF WILLIAM ANDERSON .. ,' .~" ~: BO3~RD' :'OF ARBITI:~TION: Appearances for the Coileg~.~ ~..~ Appearances for the Union: Allison Hudgins Ron Kelly '- Willi~:~n.derson. OPSEU File No.: 90B147 Date of Hearing: '.~.. September 28, ·1990 1 The Grievor, William Anderson, is a member of the academic bargaining unit and was disabled for the period .from October 18, 1989 to January 2, 1990. In his grievance, Mr. Anderson claims that he was improperly denied short term disability benefits during a legal strike which~.took place fr6m October 18 to November 14, 1989. It was the position.of the College 'that there was no Collective Agreement in force during the relevant period, and, accordingly, the Board is without jurisdiction to entertain Mr. Anderson's grievance. The College also relied on Section 59(2) of the Colleges Collective Bargaining Act which provides as follows: 59(2) Where the employee organization gives notice of a lawful strike, all employees in the bargaining unit concerned shall be deemed to be taking part in the strike from the date upon which the strike is to commence, as set out in the written notice, to the date on which the employee organization gives written notice to the Council and the employer that the strike is ended, and no employee shall be paid salary or benefits during such period. Prior to the strike which took place in the fall of 1989, community colleges, with the exception of St. Lawrence College, had sick leave plans which provided for the accumulation of sick leave credits which could be banked and utilized by employees in the event of illness or injury. These plans also contained a formula for the payout of unused credits upon layoff, termination or retirement. In contrast, St. Lawrence College had 2 a short term disability plan which was self insured by the College. This plan provided income protection for periods of up to 26 weeks, following which employees qualified for long term disability benefits. During the first six weeks of short term disability, employees received 100% of their regular earnings and, for the balance of the 20 week period, they were entitled to 80% of their regular earnings. During the strike, sick leave was an issue of considerable significance to both parties. The Collective Agreement, which was executed following the strike, was the product of an award of Arbitrator Teplitsky which provided for a comprehensive sick leave plan which is to take effect on April 1, 1991. According to the plan, employees are entitled to 100% of their regular pay for up to 20 days in any benefit year as well as for any unused days accumulated from previous years. During absences in excess of the period for which days or credits have been accumulated, employees are to receive 75% of their regular pay to the date they qualify for long term disability benefits. Employees hired prior to April 1, 1991 are entitled to a payout of unused credits upon layoff, termination or retirement or alternatively, such employees may buy out their credits in accordance with a formula set out in a Letter of Understanding which is appended to the Collective Agreement. Employees of St. Lawrence College may elect to be covered either by the existing short term disability plan or by the plan established by the 3 Teplitsky award. In the event that employees elect to be covere by the latter plan, they are to receive 30 days' accumulated credits. Turning then to the events which gave rise to the grievance, as indicated previously, the Grievor became disabled on October 18, 1989. There was no dispute that the onset of his disability coincided with the commencement of the'strike and the 'Grievor was not in receipt of short term disability benefits prior to that time. On Thursday, October 19th, the second day of the strike, Ron Kelly, the Chief Steward of Local 417, learned that two academic employees who were disabled and who had been in receipt of short term disability benefits prior to the strike had been advised by the College that their benefits would be suspended during the strike. On Friday, October 20th, Mr. Kelly telephoned Howard Gilchrist, the Director of Personnel, to discuss the suspension of benefits for the employees concerned. Mr. Kelly suggested to Mr. Gilchrist that the short term disability plan was designed to provide income protection and was in the nature of insurance. Mr. Kelly also expressed the view that Section 59(2) of the Colleges Collective Bargaining Act which provides that employees shall not be paid salary or benefits during a lawful strike was 4 intended to apply to premiums and not to insured benefits. Mr. Gilchrist advised Mr. Kelly that he would consider the matter and it was agreed that Mr. Kelly would contact Mr. Gilchrist later in the day. When Mr. Kelly did so, Mr. Gilchrist indicated that, in the College's view., the short term disability plan represented a salary continuation plan and, in accordance with the Act, the payment of salary was prohibited during the strike. On Saturday, October 21st, Mr. Kelly received a telephone call from Bill Cruden, the President of St. Lawrence College. At that time, Mr. Cruden was also the Chairman of the negotiating committee for the Ontario Council of Regents for the Colleges of Applied Arts and Technology.' Mr. Kelly testified that during his conversation with Mr. Cruden, he reiterated the Union's position that the short term disability plan was in the nature of insurance and that it was premiums, rather than insured benefits, which were not to be paid during the strike. Mr. Kelly also indicated that if the short term disability plan had been insured with a private carrier, benefits under the plan would have been paid regardless of whether or not there was a strik~ in progress. Mr. Kelly also pointed out that employees would continue to receive Workers' Compensation benefits during this period. In response, Mr. Cruden advised Mr. Kelly that the College had received a legal opinion that the Colleges Collective Bargaining Act proscribed the payment of short term disability benefits during the strike. Mr. Cruden agreed, however, to 5 review the matter with counsel the following evening. Mr. Kelly heard nothing further from Mr. Cruden and on Monday, October 23rd, he issued a press release stating that Mr. Cruden had cancelled the short term disability benefits of a number of employees who were disabled and who had been in receipt of benefits prior to the strike. When contacted by the press concerning the release, Mr. Cruden initially denied that benefits had been cancelled and evidently suggested that Mr. Kelly "had jumped the gun" in making the statement he did. According to Mr. Kelly, however, Mr. Cruden later admitted that benefits had, in fact, been cancelled but attributed this to an error on the part of the Personnel Department and indicated that benefits would be reinstated. As a result of Mr. Cruden's comments to the press, Mr. Kelly wrote to Mr. Cruden suggesting that Mr. Cruden had impugned his integrity and demanding an apology. Mr. Cruden's response to this letter was as follows: October 31, 1989 Mr. Ron Kelly 899 Percy Crescent Kingston, Ontario K7M 4P3 Dear Ron: I have received your letter that detailed our discussion concerning the payment of faculty who are on sick leave ~nd your concern that my subsequent comments brought your integrity into question. Let me assure you that none of my 6 comments were intended to either directly of indirectly question your integrity. As you know, we at St. Lawrence take great pride in the respect that we have for each other and we strive to ensure that all of our policies and practices reflect the belief that our people are our strength. It was upsetting for me to hear that the College's initial decision not to pay faculty who were on sick leave a salary during the strike period was interpreted as an insensitivity to our people. In contemplating our position on issues arising from the strike, we accepted that respect for the Collective Bargaining Act would be a value at St. Lawrence. Withdrawal of services was contemplated in the Act and it dictated how we were to handle the issue of staff who were on sick leave. Our initial response was consistent with the direction in the Act. After our discussion on Saturday, you had introduced sufficient question in my mind to cause me to seek additional legal advice. How rapid a response you had anticipated I am not certain, however, I was not in contact with our lawyer until Sunday evening. During those discussions he confirmed that the legislation was not absolutely clear on the issue but felt that the College's position was probably correct. As St. Lawrence is the only college with this particular situation and given the possibility that your interpretation may be correct, I decided late Sunday evening that if an error was to be made, it would be on the side of our people. I decided, therefore, that those on sick leave should continue to be paid. At 8:30 Monday morning, Ms. Church called me to determine the status of our people on sick leave. I responded by denying that it was in fact cancelled. My response accurately reflected the situation at the moment and plans were being put in place to advise all concerned. The fact that information that I used at 8:30 on Monday contradicted your statements in a press release, based on the conversation that I had with you on Saturday, is not an issue of integrity but one of timing. I do admit that, faced with the tone of your release and knowing that the decision you had referred to had been reversed and was being implemented, I concluded that you had "jumped the gun". Please keep in mind that after our discussion, I fully intended to seek further advice, and did so as quickly as I could. I also believed that you understood this at the end of our conversation on Saturday. 7 Ron, we are going through a very stressful time, together, and I am hopeful that this misunderstanding can be put behind us. Yours truly, "Bill" Bill Cruden President St. Lawrence College Saint-Laurent Sometime after benefits had been reinstated for employees who were disabled prior to the strike, the Grievor contacted Mr. Cruden to inquire as to whether he, too, would receive short term disability benefits during the strike. The Grievor was advised that he would not and it was his understanding that Mr. Cruden intended to pay benefits only to those employees who had been in receipt of benefits before the strike began. The final aspect of the evidence which must be considered relates to an agreement which was entered into between the Council of Regents and the Union which provided for the continuation of insured benefits for members of the academic bargaining unit. By virtue of this agreement, the Union assumed responsibility for the payment of premiums for life insurance, extended health, dental and O.H.I.P. coverage. The agreement made no reference to the short term disability plan at St. Lawrence College or to the sick leave plans at any of the other community colleges within the system. It was agreed between the parties that the retroactivity provisions of the Collective Agreement executed following the strike applied only to increases to the salary schedule and not to the benefit plans. It was the submission of the Union, however, that the short term disability plan which was contained in the prior Collective Agreement was extended during the period of the strike by virtue of an agreement reached between Mr. Kelly and Mr. Cruden. In the alternative, the Union contended that Mr. Cruden represented to Mr. Kelly that the College would not rely upon its strict right to deny benefits to employees disabled during the strike. The Union acted upon that representation by not pursuing the matter further and, in these circumstances, it was submitted that the College should be estopped from reverting to its strict legal rights. Accordingly, the Union requested that we award short term disability benefits to the Grievor for the period from October 18 to November 14, 1989. The College took the position that Section 59(2) of the Colleges Collective Bargaining Act is a complete answer to the Grievor's claim as it provides that no employee shall be paid salary or benefits during a lawful strike. The College submitted that payments under the short term disability plan constitute either salary or benefits and, therefore, are proscribed by the Act. The College further contended that there was no Collective 9 Agreement in force during the relevant period from which the Board could derive jurisdiction to determine the Grievor's claim. Finally, it was submitted that the Union had failed to demonstrate that there was any understanding or representation on the part of the College that benefits would be paid to the Grievor during the strike. Section'59(2) of the Colleges Collective Bargaining Act provides that once the Union gives notice of a lawful strike, all employees are deemed to be taking part in the strike and "no employee shall be paid salary or benefits during this period". Section 59(2), however, contains no definition of the terms ,salary" or "benefits". In respect of benefits such as life insurance and extended health, .which are insured by outside carriers, the parties have applied the prohibition in Section 59(2) ~to the payment of premiums. In those cases, however, the College's liability extends only to the payment of premiums whereas the short term disability plan at St. Lawrence College is self insured and, as a consequence, the actual benefits are paid directly by the Cg!lege to the employee. In any event, for purposes of this case, it is unnecessary to determine whether Section 59(2) of the Colleges Collective Bargaining Act proscribed the payment of short term disability benefits to the Grievor during the strike. Even if these payments were not contrary to the Act, in order for the 10 Grievor to succeed, there must have been some agreement in force at the relevant time from which this Board could derive jurisdiction. In this regard, the Board was referred to two awards in which claims for sick leave during a legal strike were dismissed because, in each case, it was found that there was no collective agreement in force and, as a result, the board was without jurisdiction to determine the grievor's claim: see Ontario Council of Regents for Colleges of Applied Arts and Technology (George Brown College) and Ontario Public Service Employees Union, April 29, 1985 (Beck (unreported)) and Fanshawe College and Ontario Public Service Employees Union, July 16, 1985 (Samuels (unreported)). In this case, it was acknowledqed that the Collective Agreement which was executed following the strike was not in force at the relevant time and that the retroactivity provisions were limited to increases to the salary schedule. It was also acknowledged that the agreement between the Council of Regents and the Union which prouided for the continuation of certain insured benefits made no reference to the short term disability plan at St. Lawrence College. Having considered the evidence as a whole, we are also unable to conclude that there was any agreement or understanding reached between Mr. Kelly and Mr. Cruden which would support the Grievor's claim. Mr. Kelly initially approached the College as a 11 result of the College's decision to suspend short term disabilit' benefits for a number of employees who were disabled and who had been in receipt of benefits prior to the strike. While we understand that the issue of entitlement to benefits was discussed in general terms, Mr. Cruden ultimately agreed that "those on sick leave should continue to be paid". By providing that certain employees would continue to be paid, it appears that Mr. Cruden intended to pay benefits only to those employees who had been in receipt of benefits before the strike began. This conclusion is reinforced by the Grievor's own evidence as to his cOnversation with"IMr. Cruden. In that conversation, Mr. Cruden made it clear that the Grievor would not be receive disability benefits because he had not been in receipt of benefits prior to the Strike. It is not the function of this Board to assess the merits or the fairness of Mr. Cruden's decision but only to determine whether that decision provides a basis for the Grievor's claim in this case. In this regard, the evidence indicates that while Mr. Cruden undertook to continue to pay benefits to employees who had been in receipt of benefits prior to the strike, he made no commitment to pay an employee such as the Grievor who was not in receipt of benefits before the strike began. 12 In the result, the Board finds that there was no collective agreement in force during the relevant period, nor was there any agreement or representation on the part of Mr. Cruden which would support the Grievor's claim. For these reasons, the grievance of Mr. Anderson must be dismissed. DATED AT TORONTO, this 18th day of December, 1990. Chairman "David W. Guptill" College Nominee \ See Partial Dissent Attached - "Wally Majesky" Union Nominee PARTIAL DISSENTING OPINION ST. LAWRENCE COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF WILLIAM ANDERSON OPSEU FILE NO. 90B147 My partial dissenting opinion stems from the fact that there seems to be a element of unfairness and bias towards certain employees of the College. Secondly, the college clearly had two criteria for paying disability benefits and that was; employees disabled before the strike clearly were eligible for short term disability benefits. For some reason employees similarly disabled during the strike were not eligible for short term disability benefits. My opinion really in effect takes issue with how the college handled this issue and in reality acted in a arbitrary manner in allowing some employees short term benefits and. disallowing other employees similar benefits for no other apparent reason, than the employees were on strike. This to me. smacks of a kind of high handed discriminatory handling of the issue. If you want to be consistent either everybody gets short term benefits or no one is eligible for short term b~nefits. Clearly I would support the concept that everyone is eligible for short term disability benefits regardless whether they are on strike or not. December 13, 1990