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HomeMy WebLinkAboutUnion 97-09-16 -1- IN THE MATTER OF AN ARBITRATION BETWEEN FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the College) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the Union) IN the Matter of Two Union Policy Grievances dated April 2, 1996 and April 3, 1996 BOARD OF ARBITRATION A. Kruger - Chair R. Hubert - Member J. McManus - Member APPEARANCES For the College - R. J. Atkinson, Counsel - I. Van Kemenade For the Union - J. Seamon, Counsel - J. Crawford - L. Watt HEARING AT LONDON, ONTARIO JUNE 20, 1997 -2- At the outset, the College raised a preliminary objection to our hearing these grievances. It is the College's opinion that these matters are not properly union grievances under Article 18.3.3 of the Agreement. This has been the College's consistent view from the time these grievances were filed. It was agreed that the Board would hear and rule on the preliminary objection before proceeding to the merits of these grievances. Fortunately there is agreement on most of the relevant facts. Two bargaining unit members, Ms T. Greene and Ms. C. McCrae were employed in the Community Access Department of the College as Support Service Officers A, Payband 8. On or about April 1, 1996, they were informed of a layoff. In the case of Ms. Greene, her position was reduced from a twelve month position to one of only ten months. Later that month, Ms. Greene was offered and accepted a twelve month position elsewhere in the College in the same classification and payband. Ms. Greene had grieved her original layoff but now abandoned that grievance. In the case of Ms. McCrae, she had voluntarily reduced her hours from five days per week to four days per week about a year prior to the layoff in April 1996. Her layoff notice informed her that her position had now permanently been reduced to four days per week. She accepted this change and did not grieve. At this time there were others employed in the Community Services Department including a part time staff member who was also laid off. Ms. J. Evans, a third Support Services Officer with less seniority than either Ms. Greene or Ms. McCrae, was not laid off.. The College Argument This matter could have been grieved by Ms. Greene and Ms. McCrae but they chose not to grieve. In fact, Ms. Greene did grieve but later abandoned her grievance. Therefore, for the Union to grieve these same matters under Article 18.3.3 the Union must meet the conditions specified in that article which is reproduced in full: -3- [lnion Grievance The Union shall have the fight to file a grievance based on a difference arising directly out of the Agreement concerning the interpretation, application, administration or alleged contravention of this Agreement. However, such grievance shall not include any matter upon which an employee is personally entitled to grieve and the regular grievance procedure for a grievance peculiar to an individual employee shall not be bypassed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of persons in the bargaining unit. A Union grievance shall be presented in writing, signed by the Local Union President or his/her designee to the Director of Personnel or as designated by the College concerned, within fourteen (14) days after the circumstances giving rise to the complaint have occurred, or have come to or ought reasonably to have come to the attention of the Union. The grievance shall then be processed in accordance with Step No. 3 of the grievance procedure. There are numerous arbitration awards under this agreement that state that all three of the following conditions must be established by the Union if it is to grieve a matter that could have been grieved by an individual: -the grievance involves an "unreasonable standard" - the standard in question is "patently in violation of this Agreemenf' - what the College has done by creating this unreasonable standard, in patent violation of the Agreement," adversely affects the rights of persons in the bargaining unit." The College's position is that the Union has not met any of the three tests and accordingly this is not a proper union grievance. There is no unreasonable standard here, nor is there a patent violation of the agreement, nor is there any impact on other bargaining unit members as a result of the failure of Ms. Greene and Ms. McCrae to grieve what the College did. -4- As for Articles 1.2 and 15.3.4, the College complied with these provisions. Article 1.2 reserves to the College the right to decide on the balance between full-time and part-time positions. All it requires is the College "give preference to full-time over part-time assignments .... where feasible" The College did eliminate the only part-time position in this department before resorting to layoffs of full-time staff and thus fulfilled any obligation it may have had under Article 1.2. As for 15.3.4 it deals with a joint committee that makes recommendations (not decisions) to the President of the College who decides the matter. In this case, the Union does not argue, nor can it argue, that the Committee failed to meet and conduct its business in accordance with Article 15.3.4. As for the Union's argument that 15.4.2 was violated because a less senior employee, Ms. Evans, was not laid off while Ms. Greene and Ms. McCrae were laid off, there is no patent violation of this clause but, at best, an arguable violation. The College's position is that there were budgeting duties that had to be performed that only Ms. Evans could perform. Neither Ms. Greene nor Ms. McCrae were capable of performing these duties. Therefore, the College acted properly under Article 15.4.2. In any case, nothing resembling an unreasonable standard is at issue here. Nor is there any evidence of an adverse effect on other members of the bargaining unit, other than the adverse effect any layoff would have in reducing desirable j ob opportunities for bargaining unit members. For all these reasons this grievance should be dismissed. The Union's Argument: The Union sees Article 18.3.3 not as a restrictive clause but as a permissive provision allowing for union grievances even where an individual could grieve the same matter. In the Union's view, we have here a classic case for allowing a union grievance under Article 18.3.3. The individuals involved chose not to pursue the matter. The standard violated by the College was the standard of layoff by seniority under article 15.4.2. This Article requires that -5- layoffs be implemented so that junior employees are laid off before senior employees. That was not done here since Ms. Evans, a more junior employee, was not laid off when Ms. Greene and Ms. McCrae were laid off. The action of the College was a patent violation of the agreement provisions related to layoff by seniority and preference for full-time over part-time staff. Other members of the bargaining unit will be adversely affected should the incumbents of the two reduced time positions leave, and their positions become vacant. Now these will be less than full-time jobs, whereas had the College chosen to follow the agreement, they would have remained full-time jobs when vacant and posted. Also had more part-time staff been laid off, the bargaining unit would have retained all the full time positions involved here. The Award We have carefully considered the able argument of counsel for both parties. We conclude that the Union has failed to meet the three-fold test required to launch this grievance as a union grievance under Article 18.3.3. We can find no unreasonable standard here. We find no basis for the claim of any violation of Articles 1.2 or 15.3.4. We reproduce here in full Article 15.4.2 Post Probationary Employees Where the qualifications of employees in the affected position who have completed their probationary period are relatively equal as to that position, their layoff shall be on the basis of seniority. That article requires layoff by seniority only when "the qualification of the employees in the affected position ...... are relatively equal". It is certainly open to the Union to argue that in this case the qualifications of Ms. Evans, Ms. Greene and Ms. McCrae were "relatively equal". It is also open to the College to argue that Ms. Evans had certain relevant skills the others lacked and the College does take this position. At best what we have here is an arguable violation of Article 15.4.2 but no patent violation of this provision. -6- For all these reasons, this grievance is dismissed. Dated at Toronto, Ontario this 16th day of September 1997. A. Kruger concur/dissent R. Hubert concur/dissent J. McManus