Loading...
HomeMy WebLinkAboutJohnon 95-03-27 IN THE MATTER OF AN ARBITRATION BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") - AND - GEORGE BROWN COLLEGE (the "College") AND IN THE MATTER OF THE GRIEVANCE OF DOUG JOHNSON (OPSEU FILE NO. 94D998) BOARD OF ARBITRATION Robert D. Howe, Chair Barry Stephens, Union Nominee Hugh John Cook, College Nominee APPEARANCES For the Union George Richards, Sr. Grievance Officer Marilou Martin Doug Johnson For the College Sarah A. Eves, Counsel Regina Lapworth Todd Teasdale Mike McGee A hearing in the above matter was held in Toronto, Ontario on February 21 and March 9, 1995. AWARD The grievance which has been referred to this Board of Arbitration (the "Board") for determination in these proceedings alleges that in the Spring of 1994 the College discriminated against the grievor, Doug Johnson, because of his Union activities by transferring him from its Casa Loma Campus to its Kensington Campus, in breach of Article 2.1 of the parties' September 1, 1992 to August 31, 1994 collective agreement for support staff employees (the "Collective Agreement"), which provides: 2.1 Interference The College and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of his/her activity or lack of activity in the Union. At the commencement of the hearing, the Union sought to expand the grievance to include an allegation that a "lack of sensitivity on the part of the College towards human rights issues may also have been a factor motivating the transfer in this case", since the grievor is "a member of a visible minority". This expansion of the proceedings was opposed by the College through its counsel, Sarah A. Eves. After hearing and recessing to consider the parties' submissions on that matter, the Board made the following unanimous oral ruling: Having duly considered the submissions of the parties' representatives, we have concluded that the scope of this arbitration hearing should be confined to the issues of whether the grievor's transfer involved an unjust application of management rights and involved discrimination because of Union activities, as alleged in the grievance. Since the matter of possible Ontario Human Rights Code violations, or violations of Article 23 of the Collective Agreement, was not raised in the grievance, discussed during the grievance procedure, or referred to in any of the particulars provided by the Union prior to this morning, and since those allegations appear to be fairly broad ranging and to involve a number of other individuals, we are of the view that it would be inappropriate to deal with them in these proceedings. As indicated in that ruling, the grievance also alleges an "unjust application" of "management rights" (Article 3.1). However, during the course of argument, George Richards, the Union's Senior Grievance Officer who ably represented the Union and the griever at the hearing of this matter, acknowledged that the grievance cannot succeed unless the evidence establishes that the transfer was motivated at least in part by anti-union animus, in contravention of Article 2.1. He also acknowledged that although the grievance refers to Article 17.4 of the Collective Agreement, there has been no violation of that provision as the requirement that three weeks' notice of transfer be given by the College was complied with in this case. Although a number of remedies are requested in the grievance, Mr. Richards advised the Board during the course of argument that the only relief being sought in these proceedings is a declaration that the griever's transfer was violative of Article 2.1. During the two days devoted to the hearing of this matter, the Board heard testimony from three witnesses: Marileu Martin, who is the past-president of the Union's Local 557 and who has held many other positions within the Union; the griever, who was the second and final witness called by the Union during its case in chief, and who was also recalled by the Union as a reply witness; and Mike McGee, the College's Campus Manager at its Casa Lema Campus, who was the sole witness called by the College in these proceedings. In addition to their testimony, the Board has before it five exhibits which were entered during the course of the proceedings. In making the findings and reaching the conclusions contained is this award, the Board has duly considered all of that oral and documentary evidence, as well as the submissions of the parties. We have also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence. The grievor is a plumber who has been employed by the College since 1985 and has spent almost all of his working time at the Casa Loma Campus. His immediate supervisor at all times material to these proceedings was Mike McGee, who in turn reported to Todd Teasdale, the College's Assistant Executive Director of Campus Operations. Mr. McGee's supervisory responsibilities encompassed about fifty plant, custodial, and shipping and receiving employees. At the time of the impugned transfer, overseeing plant personnel was a relatively recent addition to Mr. McGee's managerial responsibilities. In the Spring of 1994, the College's campuses included the St. James Campus, Nightingale Campus, Casa Loma Campus, and Kensington Campus. Union stewards were elected by the employees at each campus, and there was generally one steward for each ten to fifteen employees. The employees at the Casa Loma Campus elected a total of approximately ten stewards, one of whom was the grievor. During March of 1994, Mr. Johnson became involved in his capacity as a Union steward in grievances filed by two employees at the Casa Loma Campus (Carmen Fiore and Joseph E. Mariconda) on behalf of two groups of caretakers who were of the view that they were being underpaid as a result of being improperly classified. Those grievances were both filed on March 30, 1994 with Ann Lillepold, the College's Manager of Classifications. The Union steward named on each of the two grievances was the present grievor, Doug Johnson. When Mr. McGee became aware of the grievances shortly thereafter, he felt personally betrayed by one of the grieving caretakers in that he had worked with that individual's father for twenty years and had met with the individual many times over the years. In describing his relationship with that caretaker and the reason why he felt betrayed by that caretaker's grievance, Mr. McGee told the Board: "We don't have the usual work relationship in the way we talk about things. We don't pull any punches when we speak to each other, and we don't hold a grudge about what was said. We were going to deal with some things, then he put in a grievance. He knew what my position was at the time. I felt he just threw in a grievance .... It surprised me." Shortly after Mr. McGee became aware that those grievances had been filed and that Mr. Johnson was the steward on each of them, Mr. Johnson approached him to request a work placement in relation to a property management course which Mr. Johnson was taking at that time. The requested placement was to involve two weeks of "shadowing" a campus manager to observe the day to day functions of that position. Although Mr. McGee was under no obligation to do so, he accommodated that request by arranging through Mr. Teasdale to have the griever placed at the Kensington Campus from April 11 to April 22, 1994 to work with P. Lewis, who was the Campus Manager at that campus. The reason why Mr. McGee arranged for the griever to shadow Mr. Lewis rather than himself was that Mr. McGee was tied up with the day care construction which was occurring at the Casa Lema Campus at that time, and felt, not unreasonably, that Mr. Lewis would have more time to devote to the griever and would be able to provide him with a better all- round placement experience. Since that ongoing construction resulted in many requests for the services of a plumber in order to tie in the new facilities with existing water lines, Mr. Teasdale also arranged for Don Bevan, the plumber at the Kensington Campus, to be transferred to the Casa Lama Campus for the period of Mr. Johnson's placement. Around the time of that placement, Mr. McGee also decided that it would be advantageous to temporarily transfer Mr. Johnson from the Casa Lama Campus to the Kensington Campus, and to have Mr. Bevan transferred from the Kensington Campus to the Casa Lama Campus. (It was within the managerial authority of Mr. McGee to transfer Mr. Johnson, but Mr. Teasdale had to arrange for the transfer of Mr. Bevan, whose supervisor was Mr. Lewis.) The Kensington Campus was scheduled to close on August 31, 1994 and Mr. McGee was quite confident that he would have both Mr. Johnson and Mr. Bevan working as plumbers at the Casa Lama Campus following that closure. Some departments had already moved, but others, including Day Care, Fashion, and English as a Second Language, were still at the Kensington Campus. Mr. McGee saw the transfer of Mr. Johnson to the Kensington Campus as an opportunity for the grievar to meet the forty to fifty faculty members still at that campus, in order to gain some insight into the types of requests they were likely to make, and into their personalities and idiosyncrasies. He also viewed it as an opportunity for Mr. Johnson to get to know the types of equipment used by people in those departments. He was further of the view that having Mr. Bevan transferred to the Casa Lama Campus at that time would give Mr. Bevan, who had worked at that campus in 1990-91, a few months to familiarize himself with the new people and equipment which had arrived at that campus subsequent to his departure. It was Mr. McGee's hope that those transfers would reduce the likelihood of conflicts between faculty members and the plumbers, and ensure that "everything would be smoother in the Fall". In commenting (during cross-examination) on how this would be advantageous for him and his department, Mr. McGee stated, "The better the reputation my staff have around campus, the better the whole department looks and the better I look." He also testified that Mr. Johnson's involvement with the caretakers' grievances was not a factor in his decision to transfer the griever to the Kensington Campus, and that the transfer was not a reprisal for Mr. Johnson's involvement in those or any other grievances. Unfortunately, Mr. McGee did not discuss the transfer with the griever prior to notifying him of it by memo in mid April. During his testimony before the Board, Mr. McGee readily acknowledged that his failure to do so was a mistake on his part. He also recognized that it was unfortunate he neglected to indicate in the memo that the transfer, which was to commence in May of 1994, was intended to be only a temporary measure, with the griever returning to the Casa Lema Campus by the Fall of that year. In the absence of that important information and any advance consultation concerning the transfer, the griever reacted with shock and dismay to receiving the notice of transfer. Since he could not think of any valid reason for the transfer, he concluded that it was a recrimination against him for his role in the caretakers' grievances. Although Mr. McGee subsequently attempted to explain to Mr. Johnson the rationale for the transfer, this belated effort was unsuccessful as Mr. Johnson, who was very agitated and upset about the matter, did not accept that rationale and remained of the view that he was being discriminated against for his Union activities. His depth of feeling in that regard was quite evident from his testimony at the hearing of this matter, in which he described Mr. McGee's rationale for the transfer as being "a fabricated reason", "invalid", and "nonsensical". The grievor remained a Union steward throughout the period of his transfer to the Kensington Campus. He was also elected as the Secretary of the Local in the Spring of 1994. During his time at the Kensington Campus he processed a number of grievances for employees working at that campus. Although the individual who succeeded Ms. Martin as the President of Local 557 told the grievor that he could not represent employees at the Casa Loma Campus anymore, he was not precluded by that individual, nor by Mr. McGee or any other member of management, from continuing to represent the Messrs. Fiore and Mariconda in respect of their aforementioned group classification grievances. Thus, he continued to serve as the steward for those grievances and attended grievance meetings regarding them during the period of his transfer. Although the grievor's rate of pay was unchanged by his transfer to the Kensington Campus, he remained dissatisfied with the transfer because there was relatively little plumbing work for him to perform at that location. In describing his reaction to the transfer, Mr. Johnson told the Board: I felt cut off and isolated because I was very active at the Casa Loma Campus. The total number of support staff was much greater. The amount of work I'd been dealing with in my trade was much greater as well. I felt that my life had come to a full stop with regard to my work because of the transfer. It's like getting off a fast moving elevator and coming to a dead stop. You can't find your feet for some time. In order to escape the boredom of inactivity, the grievor spent some of his time at the Kensington Campus assisting the carpenter employed by the College at that campus. He also spent some of his time at that campus training an apprentice plumber who was assigned to him about two months after the commencement of the transfer, but experienced difficulty in doing so because of the lack of plumbing work to be performed at that location. It appears from the evidence adduced before the Board in these proceedings that the College might have been better served from a productivity standpoint if it had transferred Mr. Bevan to the Casa Lema Campus and retained the griever there as well, sending one or the other of them to the Kensington Campus to perform plumbing work on an as needed basis (as was done in respect of electrical work). In explaining why he did not adopt that approach, Mr. McGee told the Board: Well, it wasn't very long ago that I got the plant personnel put under me. We just kept it the way it was. They had a plumber down there [at Kensington Campus]. The idea was that if you had a burst pipe, you needed a quicker reaction than the usual electrical problem like a breaker. We found that explanation to be quite plausible. Moreover, the wisdom of Mr. Johnson's transfer is not an issue which the Board is called upon to adjudicate in these proceedings. That is a matter for determination by the College in the exercise of its exclusive managerial functions under Article 3.1 of the Collective Agreement (see, generally, Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union (January 18, 1983), unreported (Brent), at p. 19). The issue before the Board is whether that transfer constituted an act of discrimination (or intimidation, interference, restraint, or coercion) exercised by the College because of the griever's Union activity. As indicated in Fanshawe College and Ontario Public Service Employees Union (January 23, 1986), unreported (Brent), in order to establish a breach of Article 2.01 of the Collective Agreement, "the Union has the onus of proving (a) that there was discrimination [or intimidation, interference, restraint, or coercion] and (b) that this discrimination [or intimidation, interference, restraint, or coercion] was based on the prohibited grounds set out in Article 2.01." The following passage from that award is also instructive regarding the Board's task in cases of this type: Having carefully considered all of the evidence and the inferences which may reasonably be drawn from that evidence, we have concluded, for the following reasons, that no violation of Article 2.01 of the Collective Agreement has been established in the instant case. If, as believed by the griever, Mr. McGee was so disturbed by Mr. Johnson's role in the caretakers' grievances that he felt compelled to penalize him for it, he could easily have denied the griever's request for a work placement in relation to his property management course on the grounds that the demands for plumbing services at the Casa Lema Campus at that time were too great to permit his absence from his plumbing position. However, although Mr. McGee was under no obligation to do so, he accommodated the griever's request by arranging through Mr. Teasdale to have the griever placed at the Kensington Campus from April 11 to April 22, 1994 to work with the Campus Manager at that campus. Moreover, we accept the evidence of Mr. McGee, whom we found to be a candid and credible witness, that Mr. Johnson's involvement with the caretakers' grievances was not a factor in his decision to temporarily transfer him to the Kensington Campus in May of 1994, and that this transfer was not a reprisal for Mr. Johnson's involvement in those or any other grievances. As indicated above, the griever's rate of pay remained unchanged, and he continued to be a Union steward throughout the period of his transfer. During his time at the Kensington Campus he processed a number of grievances for employees working at that campus and, although the individual who succeeded Ms. Martin as the President of Local 557 told im that he could no longer represent employees at the Casa Lema Campus, he was not precluded by that individual, nor by Mr. McGee or any other member of management, from continuing to represent Messrs. Fiere and Maricenda in respect of their group classification grievances. Thus, he continued to serve as the steward for those grievances and attended grievance meetings regarding them during the period of his transfer. Although it appears that the transfer of the griever to the Kensington Campus may not have been as beneficial to the College's operations as Mr. McGee had hoped it would be, we are satisfied on the totality of the evidence that Mr. McGee's true and exclusive motivation for temporarily transferring the griever to the Kensington campus was his desire to provide an opportunity for the griever to meet the forty to fifty faculty members still at that campus, in order to get to know the types of equipment used by them and to gain some insight into the types of requests they were likely to make, and into their personalities and idiosyncrasies, while simultaneously giving Mr. Bevan a few months to familiarize himself with the new people and equipment which had arrived at the Casa Lema Campus, with a view to reducing the likelihood of conflicts between faculty members and the plumbers, and ensuring that everything would run more smoothly in the Fall of 1994. Thus, while we can readily appreciate how Mr. McGee's unfortunate failure to consult with the griever prior to notifying him of his transfer by means of a memo, which in turn failed to indicate that the transfer would be only temporary, could lead the griever to conclude that the transfer was a punitive measure, we are satisfied on the totality of the evidence that the griever's transfer was not in fact improperly motivated, and that it did not constitute "intimidation, discrimination, interference, restraint or coercion ... because of his ... activity in the Union" within the meaning of Article 2.1 of the Collective Agreement. For the foregoing reasons, the grievance is hereby dismissed. DATED at Toronto, Ontario this 27th day of March, 1995. Robert D. Howe Chair Icencur. "Barry Stephens" Union Nominee Icencur. "Hugh John Cook" College Nominee