HomeMy WebLinkAboutUnion 00-04-03 HEAD NOTE
OPSEU #98C118
OPSEU Local 612
OPSEU (Union Grievanee} and Multi-Colleees (Northern Colleees}
(Brent, Gail, award dated April 3, 2000)
CONTRACTING OUT - The grievance arose as a result of the creation of College Boreal in 1995
as a result of which French language programs were kansferred from other Collages in Northern
Ontario to College Bor6al. The Union and Council of Regents.had a agreement to utilize the Letter
of Understanding respecting the creation of Los cinq Coll~go to the circumstances in a joint
committee was struck. Coll6ge Boreal opened its permanent facility in 8udbury in 1997 and
contracted out maintenance, housekeeping, grounds keeping and security work The Union
challenged that this contracting out was in direct violation of the Letter of Understanding respecting
contracting out in the collective of agreement, the Letter of Understanding respecting the creation
of College Boreal in which the Council of Regents and Colleges undertook to make every effort to
avoid layoffs as of the result of the creation of the College and was impermissible as the College
was estopped from contracting out this work in light of representation made at the Joint Committee
and at the U.C C.
GRIEVANCE DENIED- The Board of Arbitration find that there were no layoffs caused directly
by the creation of College Bet&al and therefore that the Letter of Understanding re~ecting
contracting out and the Letter of Understanding respecting the creation of College Bor6al had not
been violated. With respect to the issue of the majority of the Board finds that there was no clear
representation by the College or the Joint Committee that the work in question would not be
contracted out and therefore there was no estoppel.
David Wright
IN THE MATTER OF AN ARBITRATION
BETWEEN:
MULTI-COLLEGES (NORTHERN COLLEGES)
(Hereinafter referred to as the Colleges)
AND
OPSEU
(Hereinafter referred to as the Union)
AND IN THE MATTER OF A UNION GRIEVANCE (OPSEU FILE 98Cl18-SUPPORT)
BOARD OF ARBITRATION: Gail Brent
Ron Hubert, Colleges Nominee
Jon McManus, Union Nominee
APPEARANCES:
FOR THE COLLEGES: Wallace Kenny, counsel
FOR THE UNION: David Wright, counsel
Hearings held at Toronto, Ontario on April 27, May 26 & 27, June 4, 199 and January 20, 2000.
DECISION
The grievance (Ex. 1) is dated December 2, 1997 and is reproduced below in both its French
and English versions:
Mutation du personnel de soutien des coll6ges vis6s par la cr6ation du Coll6ge Boreal.
Coll~ges concern~s: Les cinq coll~ges d~jh existants (Cambrian, Canadore, Confederation,
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Northern et Sault) et le Coll~ge Boreal, soit un total de six coll~ges. Les coll~ges mis en
cause, conteviennent aux articles 14.7 (Stabilit~ d'emploi), 15 (Procedure de mise h pied et
rappel), 17 (Affichage des postes et promotions) et aux lettres d'entente comprises dans les
pages 108 h 115 de la convention collective, ~tant donn~ que le Coll~ge Boreal a refus~ ou
n~glig~ d'afficher des postes de l'unit~ de n~gociation qui sont les mSme ou qui sont
semblables h des postes de l'unit~ de n~gociation qui existent actuellement ou ont ~t~
occup~s h l'un ou plus d'un des coll~ges d~jh existants au moment de la creation du Coll~ge
Boreal (c'est-h-dire Cambrian, Canadore, Confederation, Northern et Sault).
RI~GLEMENT DEMANDI~:
1. Que le Coll~ge Boreal soit tenu d'afficher des postes pertinents de l'unit~ de
n~gociation r~troactivement au mois de mai 1997 (date approximative);
2. Que l'on permette aux membres du personnel des coll~ges vis~s actuellement
admissibles h postuler et aux autres membres pr~alablement admissibles de poser leur
candidature aux postes ainsi affich~s;
3. Que l'on accorde r~troactivement aux candidates et aux candidats retenus la pleine
r~muneration h laquelle ils ont droit, y inclus l'int~rSt mensuel compos~ sur les
salaires qu'ils n' ont pas touches.
Respondents are in violation of Articles 14.7 (Employment Stability), 15 (Layoff/Recall) of
Agreement (appropriate version of those set out on P.P. 101-107) in that Boreal College has
refused or neglected to post bargaining unit positions that are the same as or similar to
bargaining unit positions that are or have been staffed at one or more of the "Donor
Colleges" (Northern, Cambrian, Canadore, Sault and Confederation).
SETTLEMENT DESIRED
Boreal College be required to post the appropriate bargaining unit positions retroactive to
(est. May 1997) all current and formerly relevant and eligible employees at the Donor
Colleges be entitled to bid for the posted positions and the successful candidate be (sic) to
retroactive compensation to ensure no loss with interest compounded monthly.
In a preliminary decision dated November 17, 1998 we noted that the Union and the Colleges
agreed that Confederation College should be removed from the list of "Donor Colleges" referred to
in the grievance. In that decision, a majority of this Board found that Cambrian College was not a
proper party to this grievance, and Cambrian College was removed from that list of "Donor
Colleges". The grievance therefore concerns Coll~ge Boreal, Northern, Canadore and Sault
Colleges, all of which will be collectively referred to as the Colleges. Northern, Canadore and Sault
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Colleges when dealt with as a unit will be referred to as the Donor Colleges.
Briefly stated, this matter arises out of the creation of Coll~ge Bor6al as a French language
College of Applied Arts and Technology in northern Ontario. The first classes commenced in
September, 1995. There were programs and personnel transferred to Coll~ge Bor6al from the Donor
Colleges in order to enable it to function. To accomplish this, the parties agreed to apply the Letter
of Understanding at pages 117 to 121 of the collective agreement (Ex. 2) (which had been entered
into to facilitate the transfer of programs and services from St. Lawrence and Algonquin Colleges
to la Cit6 Coll6giale) adjusting it as necessary, to form task forces as contemplated by that letter, and
to enter into a letter of understanding (Ex. 3) regarding the transfer of employees to Coll~ge Bor6al.
The Joint Transition Task Force for Support Staff, with which we are concerned, was formed and
met many times over the course of the years from 1994 to 1997. More will be said about those
meetings. It was determined that the main campus of Coll~ge Bor6al would be in Sudbury, and that
there would be satellite campuses in other locations. At the time that Coll~ge Bor6al began
operations its main campus was located in rented premises. It also carried on its satellite operations
from rented premises.
Insofar as we know, wherever Coll~ge Bor6al rented premises, including its original main
campus, the landlord supplied all plant and physical resources services, such as caretaking, grounds
keeping, snow removal, etc., and no work of that kind was done by Coll~ge Bor6al employees. In
the spring of 1997 Coll~ge Bor6al was preparing to occupy its permanent main campus in Sudbury.
On May 22, 1997 it notified the local Union that it would be contracting out certain services. The
English translation of that notice (Ex. 54) is set out below:
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The College wishes to inform you that, at the main campus in Sudbury, custodial services,
grounds maintenance, and security services will be out-sourced.
One support staff position for building systems maintenance will be created and posted in
the near future.
According to Ray Guindon, Executive Director Administration and Finance at Coll~ge Boreal, the
decision was made because it was felt that, the main business of Coll~ge Boreal being education,
others could do a better j ob of providing physical services and save Coll~ge Boreal the high capital
cost of owning and storing the necessary equipment. Following that notice the Union contacted the
Council of Regents taking the position that the contracting out violated the transition agreement and
asking for a meeting of the task force (see Ex. 38). lan McArdle replied on behalf of the Council by
letter dated July 4, 1997 (Ex. 37) as follows:
In your letter you state that the decision of the College to contract out
services is a violation of the transition agreement. We are not aware
of such a specific agreement. Rather, it was the responsibility of
Boreal to decide the number of support staff positions necessary to
support the programs that were being transferred from the "donor"
Colleges to Boreal.
In the memorandum dated January 9, 1995, it was noted that the
decision regarding the transfer of services for plant and ancillary
services and any affected employees would be deferred. Since then,
it is our understanding that Boreal has examined all options
concerning the best method of providing these services, including in-
house, but for sound business reasons has determined that contracting
out is more cost effective.
The contracting out option is a viable alternative since:
1 There were no Support Staff employees at Boreal performing these
functions and therefore no employees would be laid off due to the
College contracting out these services.
2 In discussion with the northern Colleges, which we originally
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identified as the "donor" Colleges, they identified that none of these
Colleges had "affected" employees in these areas and any layoffs at
those Colleges would be a result of that College's business decisions
or financial deficit and not due to the creation of Bor6al or the
transfer of programs from that College to Bor6al.
Given the above reasons, we do not feel that reconvening the
Transition Task Force is necessary. If the Ontario Public Service
Employees' Union still has a concern about Bor6al's actions, there are
other avenues that it can pursue.
A further meeting of the task force was held on November 19, 1997; however, the issue was not
resolved. The Council of Regents took the position that its obligations had been met and there were
no further postings to consider. Coll6ge Bor6al contracted out the services. This grievance was
filed.
The task force was made up of representatives from the support staff locals of all of the
Donor Colleges (including Cambrian), a representative of the Union, a representative of the Council
of Regents, and representatives from management of all of the Colleges (including Cambrian). One
of its first duties was to undertake a survey of the Donor Colleges in order to determine which
programs and people would be affected by the creation of Coll6ge Bor6al. At the meeting of
November 11, 1994, Guindon outlined the proposed organizational structure (see Ex. 10) and
indicated that 80 to 85 support staff positions would be needed for the opening of classes in
September, 1995. Thus began the transfer of support staff employees from the Donor Colleges to
Coll6ge Bor6al.
Three issues have been placed before us to determine. They are:
1. Is the contracting out contrary to the letter of understanding which begins at page 112
of the collective agreement (Ex. 2)?
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2. Is the contracting out a violation of the letter of understanding (Ex. 3) entered into
when Coll~ge Boreal was created?
3. Is Coll~ge Boreal estopped from contracting out because of any specific undertakings
which it made to the Union both at the Joint Transition Task Force - Support Staff
and Union College/Campus Committee and during other conversations to the effect
that work in the physical resources area would be filled by the transfer process once
it occupied its own building?
Over the course of this hearing we heard from eight witnesses and received 54 exhibits.
Some of the evidence we heard was specific to the Donor Colleges; some of its was specific to the
task force; and some of it was specific to Coll~ge Boreal. In order to try to deal with the issues
before us, we will deal with the questions separately and try to summarize the evidence as much as
possible. In reaching our decision we have considered only the evidence submitted, the submissions
of the parties, the collective agreement and the cases cited to us.
We note now that the following cases were cited to us in the course of submissions:
Re Public Service Employee Relations Commission and British Columbia Government & Service
Employees' Union (1995), 46 L.A.C.(4th) 54 (Ready, B.C.); Niagara College of Applied Arts and
Technology and Ontario Public Service Employees' Union, (1991) unreported (Kruger); and
Re Unitel Communications Inc. and Canadian Association of Communications & Allied Workers
(1994), 42 L.A.C.(4th) 177 (MacIntyre, Can.). The following provisions of the collective agreement
were also cited to us:
3.1 Union Acknowledgments
The Union acknowledges that it is the exclusive function of the Colleges to:
- generally to manage the College and without restricting the generality of the
foregoing, the right to... determine complement, organization, methods and the
number and location and classification of personnel required from time to time, the
number and location of campuses and facilities, services to be performed.., and all
other rights and responsibilities not specifically modified elsewhere in this
Agreement.
Letter of Understanding at pages 112 - 113
CONTRACTING OUT
It is agreed that no bargaining unit member who has completed the probationary period will
be released from the College's employ as a direct result of the College contracting out his/her
work.
However, contracting out to an employer who will employ the employee with comparable
terms and conditions of employment is not a breach of this letter of understanding.
Letter of Understanding at pages 117- 121
TRANSFER OF PROGRAMS AND SERVICES FROM
ST. LAWRENCE
AND ALGONQUIN COLLEGES TO LA CITI~
COLLI~GIALE
The parties recognize that the creation of the new French Language College is a unique
circumstance, and it requires that certain issues must be dealt with in negotiations. The
parties recognize that the specifics of some matters will only become apparent when the
particular programs and services to be offered at La Cit6 coll6giale are identified. The parties
agree as follows:
(A) (1) La Cit6 coll6giale shall determine the number of support staff positions
necessary in the College. From the date of this Letter of Understanding until
September 1, 1992 such positions shall be posted in all three (3) Colleges.
The information on postings shall conform to that required by Article 17.1
of the Collective Agreement. Up to three (3) months prior to the first day of
classes offered by La Cit6 coll6giale such postings shall remain posted for a
period of fifteen (15) working days. The normal posting period of five (5)
working days shall apply thereafter.
(B) The affected Colleges will strive to achieve the transfer of programs and services so
that such transfer does not cause the layoff of employees.
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Ex. 3
TRANSFER OF EMPLOYEES TO COLLEGE BORI~AL
This will reaffirm our commitment to facilitate the transfer of employees in both bargaining
units to Coll6ge Bordal. In particular, we will make every effort to ensure that no employee
will be laid off as a direct result of the creation of Coll6ge Bordal.
Signed by:
Mr. Glenn Crombie, President
Cambrian College
Mr. John Philp, Acting President
Canadore College
Dr. Jean Watters, President
Coll6ge Bordal
Mr. Roy V. Murray, President
Confederation College
Mr. Robert J. Gervais, President
Northern College
Mr. Gerry McGuire, President
Sault College
Is the contractin~ out contrary to the letter of understandin~ which begins at Da~e 112
of the collective aa:reement (Ex. 2)?
This letter of understanding deals specifically with contracting out. There is no doubt that
there have been layoffs at the Donor Colleges. There is also no doubt that the creation of Coll6ge
Bordal would have had a financial impact of some sort on those Donor Colleges which lost programs
and services or which lost any funding based on the ability to provide French Language instruction.
For the purposes of dealing with this question, though, we do not consider that we need to make any
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precise finding about that financial impact.
We believe that this letter of understanding is clear. It speaks to a particular College and to
employees being released from that College's employ as a result of that College contracting out
his/her work. The only College which contracted out work was Coll~ge Boreal. At the time that
Coll~ge Boreal contracted out the work in question no Coll~ge Boreal employees were performing
that work. Therefore, no Coll~ge Boreal employee was "released from the College's employ as a
direct result of the College contracting out his/her work".
The only way in which Coll~ge Boreal could breach this letter of understanding on the facts
before us, assuming, but not finding, that employees of other Donor Colleges were released from
employ as a direct result of Coll~ge Boreal contracting out the work in question, would be if we
could read the letter of understanding as placing an obligation on Coll~ge Boreal not to contract out
work whenever a Donor College had an employee whose work it would be if that person were
employed by Coll~ge Boreal. With respect, we do not think that this letter of understanding can be
read that way. There is nothing in the letter which suggests that Coll~ge Boreal should be treated
any differently than any other College in determining the extent of its obligations under this letter
of understanding. There is nothing elsewhere in the collective agreement that indicates that Coll~ge
Boreal should be treated any differently than any other College when interpreting this letter of
understanding. It is our view, therefore, that the letter of understanding dealing with contracting out
found at pages 112 - 113 of the collective agreement was not breached by Coll~ge Boreal.
Is the contractin~ out a violation of the letter of understandin~ (Ex. 3) entered into
when Coll~e Boreal was created?
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This letter of understanding committed the Colleges to "make every effort to ensure that no
employee will be laid off as a direct result of the creation of Coll~ge Boreal". The parties agreed to
be bound by the letter of understanding found at pages 117 - 121, which had been entered into when
another French Language College had been created in Eastern Ontario. Paragraph (A)(1) of that
letter confirms that it is for Coll~ge Boreal to determine the number of support staff positions which
it will need. This reflects the acknowledgment in Article 3.1 that it is a management right to
determine complement. Paragraph (B) speaks about the Colleges trying to "achieve the transfer of
programs and services so that such transfer does not cause the layoff of employees".
If there is an obligation not to lay off employees in Exhibit 3, it is one which arises only
when the layoff is "as a direct result of the creation of Coll~ge Boreal". If Paragraph B of the letter
of understanding at pages 117-121 gives us any direction as to what was meant by this, it would have
us make some clear connection between the transfer of a program and service and layoffs. Here
there were no transfers of these services. The programs and services that were transferred were
transferred long before Coll~ge Bor~al's permanent campus was opened.
Reading theses two letters of understanding together, it would seem that the parties
contemplated that whenever programs or services were transferred Coll~ge Boreal would determine
the number of support staff positions it required as a result of acquiring the program or service, and
then employees from the Colleges would be given the opportunity to take up those positions. If, for
example, a program or service were transferred to Coll~ge Boreal, and if Coll~ge Boreal determined
that it would deliver the program or service by contracting out, and if as a result of the transfer from
the Donor Colleges there were layoffs there, then we believe that there would be a violation of Ex. 3
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and/or the letter of understanding found at pages 117-121. That is not what occurred here.
The connection here is not so clear or direct. If the creation of Coll~ge Bor6al and/or the
transfer of programs and services were going to affect support staff positions at the Donor Colleges,
then one would expect that the survey (Ex. 27) would have identified those positions. It would
appear from that survey that there were 3 Caretaker positions identified at Cambrian and 1 Plant and
Property position identified at Northern. Therefore, it would appear that the parties themselves at
the beginning of the process contemplated that 4 positions in physical resources were so tied to the
French Language instruction being offered at the Donor Colleges that they would be affected by the
loss of that instruction. We also know that Coll~ge Bor6al determined that it would create two
bargaining unit positions in physical resources. Arguably, then, the direct impact of the creation of
Coll~ge Bor6al on plant services positions and the decision to contract out those services was not
great. When one considers that there were no layoffs at Cambrian, then the impact can be regarded
as smaller still.
Be that as it may, it would also seem logical that the impact on plant services employees at
the Donor Colleges should have been felt in 1995 when Coll~ge Bor6al commenced operations and
programs and services were transferred from the Donor Colleges. That is, it would seem to be
reasonable to expect that when the Donor Colleges lost programs, students, and services to Coll~ge
Bor6al they might find themselves with excess space and reduced needs among the physical plant
employees, which would lead to staff reductions in those areas then. If the opening of Coll~ge
Bor6al did not cause reductions in physical plant positions in 1995, then the contracting out in 1997
could not have caused reductions tied to the creation of Coll~ge Bor6al.
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Moreover, in considering the obligation under Exhibit 3, and in trying to determine if the
layoffs were a "direct result of the creation of Coll6ge Bor6al", we must be able to draw a causal
connection between the creation of Coll6ge Bor6al and the layoffs. What the evidence discloses,
though, is a situation where many things were occurring in the period 1995-97 at all of the Donor
Colleges which affected the number of positions at those Colleges. The Colleges were losing
funding from both the provincial and federal governments and a variety of other sources which were
related to programs other than those delivered in French. It would appear that this is a situation
where, because layoffs occurred after Coll6ge Bor6al was created, the Union is asking us to conclude
that they were caused by the creation of Coll6ge Bor6al. Given all of the evidence before us
concerning the revenue losses suffered by all of the Donor Colleges which were unrelated to the
creation of Coll6ge Bor6al, it would be impossible to determine which, if any, layoffs were "a direct
result of the creation of Coll6ge Bor6al". Further, given the number of transfers which occurred as
a result of the creation of Coll6ge Bor6al and the decreased expenditures that would have been
experienced as a result, combined with the number of other factors which contributed to the loss of
revenue during the same period, it becomes even more unreasonable to conclude that the layoffs
were "a direct result of the creation of Coll6ge Bor6al" as required by Exhibit 3.
Is Coll~ge Bor6al estopped from contracting out because of any specific undertakings
which it made to the Union at both the Joint Transition Task Force - Support Staff and
Union College/Campus Committee and during other conversations to the effect that
work in the physical resources area would be filled by the transfer process once it
occupied its own building?
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This is the most difficult of the three questions. It is clear from all of the evidence we heard
that nobody who attended the Task Force meetings from their inception to the announcement that
Coll~ge Boreal would be contracting out the plant and property work would have had any prior
indication of the plan to contract out. It is conceded that Coll~ge Boreal was never asked and never
explicitly undertook not to contract out any of the work. It is also conceded that everyone realized
that before any jobs could be posted Coll~ge Boreal first had to determine complement.
All of the cases cited to us dealt with estoppel. In Public Service Employee Relations
Commission the parties were negotiating a merger and reorganization of some operations. It was
found that in the course of their negotiations the employer gave a clear commitment that there would
be no layoffs as a result of the merger and reorganization. Arbitrator Ready's primary reason for
holding the employer to that commitment was his finding that the parties had made a binding
agreement that there would be no layoffs. He found that the quidpro quo for the employer's promise
was the union's co-operation in ensuring an orderly transition. In the alternative, he found that if
there had been no consideration given by the union for the commitment not to lay off, then the
employer would have been estopped from asserting its legal right to layoff. In so doing he found an
unqualified representation which had been relied on by the union to its detriment. At page 63 he
noted that "the detrimental reliance was in the form of the union forgoing a certain amount of
bargaining strength by co-operating to ensure an expedited and orderly reorganization".
Niagara College involved a situation where a union member on the joint insurance
committee established under the collective agreement asked for an interpretation of the STD and
LTD plans. One of the college members gave an interpretation that concluded, in part, that
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employees would only receive STD benefits so long as an employment relationship existed. The
union did not object to this interpretation but asked that the opinion be distributed to College
personnel directors and said that it would distribute it to its locals. The parties never specifically
discussed whether the interpretation would apply to employees who were employed for less than 12
months. Niagara College applied the interpretation to a 10 month employee. That employee's STD
was cut off on June 30th, when she was laid off, even though she was to return to work in September.
The majority of the board of arbitration found that the union was estopped from arguing that the
grievor was entitled to receive STD beyond June BOth. It based its finding of an estoppel on the
union' s request for an interpretation and its request that the interpretation be circulated throughout
the system. It would appear that this action of the union, along with its failure to indicate any
reservations about the interpretation, was taken to be a representation to the colleges that there was
agreement on the interpretation. The majority also found that the colleges relied on this to their
detriment by forgoing their ability to raise the matter in the round of collective bargaining that
intervened between the representation and the grievance (see page 11).
Unitel involved a situation where the parties agreed that a certain provision in their collective
agreement needed revision in order to clarify it. They both agreed that their intention was not to
change the provision in substance at all. The employer prepared the simplified revision and the
union accepted the language, both of them sharing the belief that the meaning of the provision had
not changed at all. During the life of the collective agreement some enterprising soul read the new,
improved language and realized that the new wording did indeed change the substance of the clause
to his benefit. Naturally, he grieved. Arbitrator Maclntyre found that "the twin elements of reliance
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and detriment" (page 187) were required to establish the estoppel and were present. He found that
the union's agreement that the new language bore the same meaning as the old was a representation
and that the employer relied on that to its detriment.
Hence, the cases are unanimous in finding that in order to find an estoppel there must be a
representation made which is intended to be relied on and is relied on to the detriment of the party
who relies on it. The rationale is that it would be inequitable to allow the party making such a
representation to rely on its strict legal rights when it has caused the other party to act to its detriment
by such representation. Therefore, we must examine the evidence before us to determine if there was
both representation and reliance.
The joint task force commenced meeting on April 14, 1994 (Ex. 4). It was recognized at the
outset that staff at the Donor Colleges would be directly affected as programs and services were
transferred to the new College. It met in May and July, 1994 (Exs. 5, 6, & 7) and then again on
September 28, 1994 (Ex. 8). It was at that meeting that the opening of Coll~ge Boreal was given as
September, 1995. The minutes noted that Coll~ge Boreal had officially announced its programs
several days before, and the sites of its campuses had been announced. The task force noted that the
main campus in Sudbury would not be available for September, 1995, and that the president and
senior management team was in place.
The task force met again in October, 1994 (Ex. 9) and it was noted that all OTAB funded
French skills training programs would be transferred from the Donor Colleges. The evidence was
that the parties also discussed how to identify affected employees, and that it was the understanding
that all the identified positions would be posted at the affected Colleges.
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In November, 1994 (Ex. 10) the task force discussed the proposed organizational structure
of Coll~ge Bordal. At that time Coll~ge Bordal identified that for September, 1995 it would require
80 to 85 support staff positions (item #6). In that same item the following passage is found:
Ancillary services such as daycare and bookstore and Physical Resources (maintenance) were
not taken into consideration at this time. Union requested that the issue of Contracting Out
be added to the next meeting agenda.
Guindon testified that the task force was told that if some services were transferred the staff would
be too, but that with leased premises occupied by Coll~ge Bordal, property services would be
supplied as part of the lease. He said that at that time Coll~ge Bordal did not know what would
happen regarding those "ancillary services" and advised the task force of that. Guindon testified that
he made no commitment that the "ancillary services" would not be contracted out.
It was the evidence of Lucille Lachance, who represented the Northern College support staff
local on the task force, that "ancillary services" were not considered because Coll~ge Bordal's
building was not completed. She testified that it was her understanding that they would be included
in later phases whenever the positions were needed or available. She also understood that no
decision had been made about the number of employees who might be required to cover those
services.
Another Union representative at the meeting was Lise Constantineau, who was then
representing the support staff local at Cambrian College, and who subsequently transferred to
Coll~ge Bordal in May, 1995, where she became a member of the local executive. She claimed that
either at that meeting or in January, 1995 she asked why the "ancillary positions" were not being
posted, and was told that the positions at the future main campus would be posted later because the
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main campus would not be ready until 1997. She said that she considered the statement that the
positions would be posted at a later date to be an agreement.
It should be noted that these minutes contain the first reference to contracting out, and that
the Union was the moving force behind having the subject placed on the agenda. Lachance said that
from that date forward there was no express confirmation from Coll~ge Boreal that it would not
contract out j obs. Constantineau said that it was her view that the item was included on the agenda
because the Union had a concern about the contracting out of the "ancillary services" at the main
campus and Coll~ge Boreal was saying that no decision had yet been made about what jobs there
would be in the physical resources area. From November onward contracting out continued to be
on the agenda but its discussion was deferred.
Meanwhile, in January, 1995 Coll~ge Boreal posted roughly 87 support staff positions which
were available in Phase ! of the transfers. That posting (Ex. 13), the wording of which was reviewed
by the task force before it was sent out, contained the following paragraph:
All other employees from OTAB programs, and related services, i.e. bookstores, childcare
and plant and property services will be transferred at a further date. It is understood that
employees who transfer to Coll~ge Boreal in a position similar to their own will retain their
same work week duration.
Guindon testified that the intention of Exhibit 13 was not to commit Coll~ge Boreal to
having employees in those positions. He said that Coll~ge Boreal did not know what its needs would
be and so left the matter open. Constantineau said that she understood that Coll~ge Boreal had made
no decisions about what jobs there would be in physical resources at the new campus. Lachance
testified that the above paragraph was consistent with the discussions that they had been having at
the task force, and she understood that the positions mentioned would be part of the bargaining unit
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positions that would be made available for support staff sometime later. Bob Hurley, the Director
of Human Resources for Cambrian College, was also a member of the task force. He acknowledged
that a person reading Exhibit 13 would conclude that other programs and services would be dealt
with by the same posting process later.
There were two task force meetings in February and one in March. During those meetings
contracting out remained on the agenda and was deferred each time. Finally, on April 10, 1995,
there was a discussion of contracting out. That discussion, which is found at item 10 of the minutes
(Ex. 17), was as follows:
Campus Location (Timmins)
OPSEU informed the Task Force participants that the facilities Coll~ge Boreal is considering
leasing in Timmins (Cochrane-Timiskaming Resource Centre) from the Ontario Management
Board (or Ontario Realty Corporation) were previously occupied by the Ministry of
Community and Social Services. This Ministry is in the process of laying off its maintenance
employees. OPSEU brought to the attention of Coll~ge Boreal the Ontario Labour Relations
Act as amended by Bill 40 which contains provisions relating to "Successor employer
bound".
Larry Sauer, the president of the support staff local at Northern College, attended that
meeting to speak to the matter. He said that the Union' s concern was solely about that location in
Timmins because it had become aware that Coll~ge Boreal wanted to lease the premises but not to
assume the costs of the existing unionized plant and property and cafeteria workers who had been
employed there. Sauer said that he spoke to Guindon at length about the matter and expressed the
Union's concern about the report that Coll~ge Boreal was going to contract out that work at
Timmins. Sauer said that following that meeting he was informed that the Ontario Realty
Corporation was negotiating that the employees concerned would be included in the lease of the
premises, and upon learning that, he considered the issue to have been dealt with. Contracting out
20
stopped appearing on the agenda following the June 6th meeting (Ex. 19). At the June 26th, 1995
meeting of the task force there was an update on the issue (Ex. 20, item 6) as follows:
CRTC [lpdate
Coll~ge Boreal contacted the Ontario Realty Corporation regarding
the leasing of facilities occupied by the CRTC. Boreal was informed
that provided they decide to offer food services, their call of proposals
will have to refer to "successor rights".
Sauer said that there was no other contracting out issue at that time.
On April 18th the joint task force issued a memo (Ex. 18) which contained the following:
Under terms and conditions of the support staff employees' collective agreement and the
letter of intent regarding program transfers, we want to inform you that the transfer of
personnel from existing Colleges to Coll~ge Boreal will be implemented in three phases.
Phase ! took place in March 1995. Phase 1I took place in April 1995, and Phase 11I will take
place in June 1995.
All other employees from OTAB programs, and related services, i.e. bookstores and plant
and property services will be transferred at a further date. It is understood that employees
who transfer to Coll~ge Boreal in a position similar to their own will retain their same work
week duration.
Lachance said that there was nothing in Exhibit 18 which affected her understanding that the future
positions would be posted whenever they became available. She said that it was always her
understanding that when Coll~ge Boreal opened its permanent campus the task force would
reconvene and look at positions available for plant and property, etc. employees available there.
Constantineau also testified that when she was a member of the task force the only discussion was
that the ancillary services would be posted later when the building was ready. Hurley said that he
understood that there was no commitment by Coll~ge Boreal not to contract out caretaking, security
or any related services; however, he also agreed that Coll~ge Boreal never said that it would contract
out any of this work.
21
As already noted, Constantineau became an employee of Coll~ge Boreal on May 1, 1995.
She was the interim and then elected president of the support staff local from then until November,
1997. During that period she sat as a Union representative on the Union College/Campus Committee
(referred to as UCC). It was her evidence that at the UCC the Union questioned when the positions
would be posted. She referred to the UCC meeting of December 7 and 13, 1995 (Ex. 22) where there
was a discussion of a temporary position in the physical resources department. She said that
Guindon explained to the meeting that the transfer of positions in maintenance would take place
when Coll~ge Boreal was in its new building. Guindon said that he did not guarantee that all
physical resources work would be done only by Coll~ge Boreal employees, and that he did not mean
to imply that. It was Guindon's evidence that in December, 1995 no decisions had been made about
what services Coll~ge Boreal intended to provide for itself at the main campus. He said that the
decision about how to provide those services was made in the spring of 1997 when the contracting
out decision was made.
The Coll~ge Boreal UCC met on February 20, 1997 (Ex. 23). Constantineau said that at that
meeting she asked about further positions to be posted in physical resources and was told that the
Council of Regents was being contacted. She said that she concluded from this that no decision had
been made yet on what physical resources jobs Coll~ge Boreal would have. She said that it was her
understanding that Coll~ge Boreal first had to decide how many positions were available and then
post for those positions; so, for example, if it decided to employ 50 people it would post 50 jobs, if
it decided to employ 5 people it would post 5 jobs, etc.
At the Coll~ge Boreal UCC meeting of April 17, 1997 (Ex. 24) the matter of the positions
22
at the new building was deferred. The next meeting of the UCC was on May 22 and 28, 1997
(Ex. 25). It was at that meeting that Coll~ge Boreal gave written notice to the Union of its intention
to contract out security, grounds work, and snow removal. Constantineau said that this was the first
indication she had that the work would be contracted out, and that until then it had been her
understanding that bargaining unit staff would fill those positions. She said that she based her
understanding on Guindon's response to her questions when she was on the task force, and also on
conversations she had had with Diane B~land, Executive Director of Human Resources at Coll~ge
Boreal, and Dr. Jean Watters, President of Coll~ge Boreal, to the effect that those positions would
be dealt with at a later date. She said that she had also been told informally that they were waiting
for directions from the Council of Regents.
Ultimately the Union was informed that Coll~ge Boreal would employ 2 people in physical
resources positions. Those positions were posted. Constantineau testified that she considered that
Coll~ge Bor~al's actions were a violation of what had been discussed at the task force because
people had been denied the opportunity to transfer, and because she had been told that more support
staff positions would be posted later.
Meanwhile, on March 21, 1997 the CEPP/Sub Committee of the task force had met. The
following passage is found in the minutes of that meeting (Ex. 36):
8. OTHER BUSINESS
The Union has requested information related to the structure, the specific functions as well
as the number of positions required by Boreal at their permanent campus. The Union has
also requested that we have a meeting of the full committee in May.
As Boreal is in the planning stage of the move, no specific information is available, but is
willing to share the information with its Local Union as it becomes available. Once this
information is available, the parties will schedule, if necessary, a meeting in May.
23
Sauer, who was a member of that sub-committee, said that the Union used the opportunity to remind
Coll6ge Bor6al that it had an obligation to discuss further postings. He said that the jobs the Union
was concerned about were the jobs that would follow when the main campus was completed. He
said that there was no indication then that the jobs would be contracted out, nor was there a
commitment from Coll6ge Bor6al that any jobs would be posted. Sauer did not ask if any jobs would
be contracted out and received no commitment from Coll6ge Bor6al not to contract out.
Sometime around then, and before Sauer learned about the contracting out, he met informally
with Watters and they toured the site of the new campus. Sauer said that he asked Watters who was
working on the site in the plant and property jobs, and that Watters told him that they had not been
hired yet. Sauer said that Watters did not mention anything about contracting out but rather said that
staff would be hired when they moved into the building. Sauer also testified that Watters did not tell
him that no jobs would be contracted out and he did not ask Watters whether jobs would be
contracted out, because he believed that Coll6ge Bor6al would honour "the Act" to have unionized
staff on campus. Sauer said that based on his conversation with Watters he formed no understanding
about whether or not Coll6ge Bor6al would contract out.
Sauer said he first learned of the decision to contract out when he got a call from the local
at Coll6ge Bor6al in the spring of 1997. He said that he was surprised and contacted Andr6
Bekerman, the Union staff member assigned to the task force, who was also unaware of the decision.
Bekerman wrote to McArdle, who replied in the letter (Ex. 37) reproduced earlier in this award.
As already mentioned, the task force held a further meeting on November 19, 1997. There
was no resolution of the contracting out issue. We have already set out the reasons for Coll6ge
24
Bor~al's decision.
Was there a representation made by Coll~ge Boreal that it would not contract out any of the
jobs in question? Looking at all of the evidence, it is clear that there was only one situation where
contracting out was specifically addressed. That had to do with the Timmins site, and dealt with a
specific problem which the Union wanted to bring to the task force' s attention. That problem was
resolved. Other than that, the task force never discussed the matter of contracting out generally or
in relation to the permanent campus. Nowhere in the evidence can we find an express commitment
by Coll~ge Boreal that it would not contract out any of the plant and property services. Nowhere in
the evidence, other than the Timmins discussion, do we see any indication that the parties discussed
contracting out. We find that the only contracting out concern that was ever expressed by the Union
was in relation to Timmins and that was resolved.
What then is the source of the Union's understanding that the jobs at the main campus would
not be contracted out? It would appear most likely that it arose out of the fact that Coll~ge Boreal
was following the practice of posting jobs as programs and services were transferred, and that
starting in November, 1994 decisions about ancillary services were always being postponed until the
permanent campus opened. The evidence indicates that the Union realized throughout that the
decision about complement at the main campus was always Coll~ge Bor~al's and that the first step
was determining how many positions it needed. There was throughout an assumption by the Union
members on the task force that employees of Coll~ge Boreal would fill all of the plant and property
positions. Regardless of whether the assumption was reasonable, it was certainly not based on any
explicit statement or representation made by Coll~ge Boreal that only bargaining unit employees
25
would perform plant and property services functions.
If anything, Coll~ge Bor6al was being non-committal or even equivocal when those positions
at the permanent campus were being discussed. There is no suggestion that Coll~ge Bor6al was
acting in bad faith or that it was purposely misleading the Union, rather it would simply appear that
no decision had yet been made. It would also appear that the Union chose to put a meaning on what
Coll~ge Bor6al was saying that was a possible meaning but not necessarily the only meaning or the
meaning that Coll~ge Bor6al intended to convey. The evidence indicates that Coll~ge Bor6al had
made no decision about how it would staff the plant and property positions at its permanent campus
prior to 1997, rather than that it was representing that it would not contract out that work.
Therefore, based on the evidence, we find that there was no representation or promise or
undertaking made by Coll~ge Bor6al. Lacking that, there can be no foundation for finding that
Coll~ge Bor6al is estopped from exercising its right to contract out the positions in question.
DATED AT LONDON, ONTARIO THIS 3Rr~ DAY OF APRIL, 2000.
Gail Brent
I concur
R. Hubert, Colleges Nominee
I dissent
26
J. McManus, Union Nominee