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HomeMy WebLinkAboutUnion 03-03-27 IN THE MATTER OF AN ARBITRATION BETWEEN: CONESTOGA COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 238 AND IN THE MATTER OF A UNION POLICY GRIEVANCE OPSEU FILE NO. 01C378 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR DAVID CAMELETTI, COLLEGE NOMINEE RON DAVIDSON, UNION NOMINEE APPEARANCES: FOR THE COLLEGE: BRENT LABORD, COUNSEL FOR THE UNION: IRIT KELMAN, COUNSEL · AWARD The grievance in this case, which was filed as a Union grievance, alleges a violation of the collective agreement in laying off Leslie Solonik, the senior employee at Silverheights Daycare Centre in Cambridge. There were, in fact, only two full-time employees at Silverheights prior to the layoff: the senior employee being Ms. Solonik, and the junior employee, Joyce Chapman. As Ms. Chapman could be affected by the outcome of these proceedings, she was given notice of the hearing, but chose not to attend. At the outset of the hearing, the College raised a preliminary objection to arbitrability on the grounds that the grievance was not properly brought as a Union grievance. In support of its position, the College relied on Article 18.;3.3 of the collective agreement, which is to the following effect: 18.3.3 Union Grievance The Union shall have the right 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 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. The facts which are relevant to a determination of the preliminary objection are the following: The College operates six daycare centres, which are subject to the requirements of the Day Nurseries Act, among other statutes. Among the statutory requirements, which are reiterated in directives issued by the Ministry of Community and Social Services (currently, the Ministry of Community, Family and Children's Services), are that there be a separate license issued for each daycare centre and that one person at each location be designated as a Supervisor. Each of the daycare centres is staffed by Early Childhood Education ("ECE") Workers and, in order to satisfy the statutory requirement, the College has designated one ECE Worker at each centre as a Lead Hand to assume the supervisory role. The designation of a Lead Hand is referred to in the Minutes of the Support Staff Agreement Committee, dated November 11, 1998 and signed by Co-Chairs, Linda Krotz and Anne Wallace, on behalf of the College and the Union, respectively, which provide: Each centre will have a lead hand who will allocate daily work. Bill [Bill Jeffrey, Dean of the School of Health and Community Services] has identified specific work duties for the ECE area in conjunction with the Lead Hand definition used by the college .... The qualifications set out in the Position Description Form ("PDF") for the classification of ECE Worker, apart from experience, are as follows: Excellent communication and interpersonal skills in order to be an effective team member and communicator with children, students, parents, & colleagues. Good time management & organization skills. Creative & innovative curriculum planning & problem solving skills are needed in order to run a quality child care program. Ability to apply the principals Is/c] of child development and guidance is essential. By way of comparison, the qualifications for the lead hand designation, as set out in a document which was issued by the College in December, 1998, are the following: - demonstrated ability to work well with others in the completion of work assignments - above average communication skills (both verbal and nonverbal) - organizational abilities in assigning work tasks - ability to resolve problems Although this document was distributed to Lead Hands, it would appear not to have been sent to the Union at the time it was issued. The smallest of the day care centres operated by the College is Silverheights. Prior to June, 2001, Silverheights was staffed by two full-time ECE Workers, Ms. Chapman, whose seniority dates from 1990, and Ms. Solonik, whose seniority dates from 1986, as well as several part-time employees. Ms. Chapman was designated as the Lead Hand. Due to changes in programming and declining enrolment, the College found it necessary to declare a redundancy at Silverheights, resulting in the reduction of one full-time ECE Worker position. In deciding which ECE Worker would be laid off, the Manager of Child Care Centres, Shelley Schenk, testified that she assessed the two Workers in relation to the ECE qualifications, including problem-solving, interpersonal, communication and time management skills. Ms. Schenk testified that she did not assess lead hand qualifications, although these qualifications are similar to those of the ECE Worker. And, although Ms. Schenk acknowledged that the College required an ECE Worker who could assume lead hand responsibilities, she testified that the College also required an ECE Worker with superior skills. In Ms. Schenk's judgment, Ms. Chapman had superior interpersonal, communication and problem-solving skills, which are among the qualifications of ECE Worker. Accordingly, the determination was made that Ms. Solonik would be laid off. And so, by memorandum dated May 15, 2001, the Local Union President was notified that "lo]wing to a decline in activity and demand for child care, re-organization of the programs and services at Silverheights Daycare will necessitate the layoff of Leslie Solonik, ECE Worker". Thereafter, the Employment Stability Committee ("ESC"), a bipartite committee made up of persons appointed by the Local Union and the College, met on three occasions, May 30, June 13 and June 18, 2001, to consider the matter of Ms. Solonik's layoff and make recommendations to the President of the 5 College with respect to alternatives which might be resorted to in order to prevent or minimize the employee's dislocation. According to Ms. Wallace, it is the responsibility of the Union members of the ESC to advocate for the affected employee and to ensure compliance with the layoff procedures under the collective agreement. Although it would appear that there was no discussion of ECE qualifications during the ESC meetings, Ms. Wallace maintained that there was a discussion of lead hand qualifications. In this regard, the Union members of the Committee were advised that Ms. Solonik was identified for layoff as she did not have the lead hand designation. Although the Union members contended that the lead hand designation is not a proper consideration in deciding which employee should be laid off, there was no agreement between the Union and the College members regarding this matter. Accordingly, the ESC was unable to agree on recommendations and so, in accordance with the protocol to be followed where agreement cannot be reached, the Union and the College members made separate recommendations to the President. The Union members' recommendation, which was dated June 15, 2001, makes reference to the fact that Ms. Solonik and Ms. Chapman are in the same classification (ECE Worker - Payband 9); that they have equal qualifications and, as Ms. Solonik has greater seniority, the collective agreement requires that Ms. Chapman be laid off rather than Ms. Solonik. Accordingly, the Union members reasoned, the College erred in proposing to lay off Ms. Solonik instead of Ms. Chapman. Based on this reasoning, the recommendation of the Union members states the following: That the College withdraw the notice of layoff to the Union identifying the layoff of Leslie Solonik. The College in its tentative determination to undertake the action contemplated, identify Joyce Chapman, ECE Worker, Silverheights Daycare Centre, as the appropriate employee, and who has the/east seniority of the two employees, to be laid off. This will achieve the reduction in full-time bargaining unit employees at the Silverehights [sic] Daycare Centre the co#ego has determined necessary. (emphasis in original) Apart from this recommendation, on June 17th, Ms. Wallace wrote to the President reiterating the Union's concerns. That memorandum reads, in part: During our layoff discussion about Silverheights Daycare Centre, the college has relied on the fact that Joyce Chapman is a lead hand, and that Leslie Solonik is not. The college has designated the Lead Hand responsibility to one ECE Worker at each daycare centre. The reason for this, as we understand, is the college's obligation to comply with the Day Nurseries Act. A 'supervisor' must be identified at each daycare centre. The college has determined that the designation of Lead Hand is equivalent to the obligations of a daycare supervisor for the purposes of the Act. The collective agreement allows for the provision of a Lead Hand premium, $0.75 to reward the designation. Lead Hand is an add-on to a classification. The collective agreement does not make any distinction between one ECE worker and an ECE - Lead Hand worker for the purposes of applying any articles. The designation of Lead Hand does not afford the assigned employee to a type of 'superseniority', or any other condition. It is excluded from the functions of Article 15 - Layoff/Recall Process. Many years ago, during the leadership of Donna McKenna in ECE, she and I had many discussions about the difference between the ECE workers assigned Lead Hand and the other ECE workers. She knew at that time if there were layoffs, these workers would not be granted any preferential treatment. Recall the closing of Tallpines daycare a number of years ago, the lead hand was not treated any differently than any other worker. During the first meeting the Union had with the college about the need to reduce the staffing complement at the Silverheights Daycare Centre, it was acknowledged by the parties that the ECE Worker designated as a Lead Hand had less seniority than the person identified to be laid off. The college admitted this fact to be true and further declared that they knew 'seniority' would be an issue for the Union. I have advised Linda Krotz that the college is backing the Union into a corner and forcing us to file a Union grievance. (emphasis in original) Notwithstanding the reference to filing a grievance, the Union proposed a resolution of the issue. That resolution, which is not material to a determination of the preliminary objection, was not acceptable to the College. Accordingly, the following day (June 18th), the College members of the ESC issued their own recommendation to the President, supported by a rationale, which states, in part: · Article 15.4.2 addresses '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'. However, they are not relatively equal; we do not require just an ECE Worker at Silverheights, we require an ECE Worker with leadhand [sic] abilities and experience. · Assignment of leadhand responsibilities as per Article 7.6 does not just reference seniority, 'a leadhand may be designated within a work group, giving due consideration to the ability, qualifications required for the position and seniority, in making the appointment'. · Leslie has the seniority but Joyce possess [s/c] the superior abilities, has demonstrated those abilities very capably, and has the experience to continue as the ECE Worker with the leadhand responsibilities at Silverheights. · Leslie lacks direct leadership experience as a leadhand, nor has she ever expressed an interest in performing leadhand functions and she had the opportunity to do so as recently as just this past February. · . . . our position [is] that an employee can have the seniority but another employee with less seniority has the superior abilities and the experience to perform the leadhand function. Based on this rationale, the College members recommended that Leslie Solonik, one of two ECE Workers at Silverheights, be offered a reassignment to one of two ECE Worker vacancies we are currently holding and not posting until this matter is resolved. Both vacancies are due to resignations, one at the Doon location, the other at Waterloo. We would give Leslie the option of choosing the location. (emphasis in original) Although the suggestion that the laid off employee be assigned to one of the ECE Worker vacancies was acceptable to the Union, the College's recommendation that Ms. Solonik be laid off, rather than Ms. Chapman, was not. In the end result, it was the College's recommendation that was accepted by the President. Accordingly, on June 20, 2001, a notice of layoff was issued to Ms. Solonik. Subsequently, Ms. Solonik accepted reassignment to a vacant ECE Worker position at the Doon Child Care and did not file a grievance in respect of the layoff (or any other matter). Instead, on June 20th, the Union filed a policy grievance claiming a violation of Article 15.4 and, in particular, Article 15.4.2, of the collective agreement and requesting that the layoff notice issued to Ms. Solonik be withdrawn and reissued to the junior employee, Ms. Chapman. On July 9th, the College responded to the grievance, taking the position (1) that the grievance was not properly brought as a Union grievance; and (2) on the merits, that the College required an ECE Worker with lead hand qualifications and experience at Silverheights Daycare Centre and, therefore, chose to retain the junior employee who possessed these qualifications and experience in preference to the senior employee who did not. The issue is whether the grievance in this case was properly brought as a Union grievance. A resolution of this issue depends upon the proper interpretation of Article 18.3.3 of the collective agreement. Apart from Article 18.3.3, the following provisions merit consideration: 7.6 Lead Hand Premium Where the College determines that it is required, a Lead Hand may be designated within a work group, giving due consideration to the ability, qualifications required for the position and seniority, in making the appointment. Where the College assigns an employee to Lead Hand responsibilities, the employee shall be entitled to a premium in the amount of seventy-five (75) cents per hour over his/her then current classification rate for all hours worked during such assignment. 10 15.4 Layoff Procedure When a College decides that circumstances require a reduction in personnel in any position within a classification the following provisions shall apply: 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. Article 18.3.3 makes provision for the filing of a Union grievance. However, in order to bring such a grievance, the Union must establish either (1) that the grievance could not have been the subject of an individual grievance; or (2) if the grievance could have been the subject of an individual grievance, that (i) an individual employee has not grieved an unreasonable standard; (ii) the standard is patently in violation of the collective agreement; and (iii) it adversely affects the rights of persons in the bargaining unit. See, e.g., Re Algonquin College and Ontario Public Service Employees Union; Trade Union Grievance under Article 18.3.3 of the Collective Agreement, November 8, 1985 (Kates (unreported)) (the "Algonquin College (Kates)" decision) and Re George Brown College and Ontario Public Service Employees Union; Union Grievance, June 8, 1994 (Devlin (unreported)) (the "George Brown College" decision), rendered under substantially the same language in the academic collective agreement. In this case, there was no dispute that the grievance could have been the subject of an individual grievance. Accordingly, in order for the grievance to be arbitrable, the Union must bring itself within the second alternative. It is generally accepted that under this alternative, all three criteria must be satisfied and that failure to establish any one of the three criteria will result in a finding that the grievance is inarbitrable. See, e.g., Re Seneca College and Ontario Public Service Employees Union, January 31, 1991 (P.C. Picher), referred to in the George Brown College decision. In this regard, the College submitted that the qualifications which are utilised in identifying an employee for layoff do not constitute a "standard" within the meaning of Article 18.3.3. Rather, the standard is the legal standard, or criterion, of relative equality which has been established for layoffs in Article 15.4.2, rather than the qualifications which have been established for any particular position or the application of that standard to a particular fact situation. In any event, the College submitted that the evidence does not support the conclusion that it utilised lead hand, rather than ECE, qualifications in deciding which employee would be laid off. In the alternative, the College sui3mitted that in the unique circumstances of this case, where a single employee was retained following layoff at the Silverheights Daycare Centre and where the College was under a legal obligation to designate a Lead Hand at each location, it would not have been unreasonable to take into account lead hand qualifications. Similarly, as the College is entitled to establish qualifications which are reasonably related to the work to be performed, and as there was a legal requirement for the employee who was retained to assume lead hand functions, it would not have been patently in violation of the collective agreement for the College to have taken into account lead hand qualifications. As to the third criterion, the College submitted that, in the circumstances of this case, involving a single incumbent at a specific location, as there was no indication that the requirement for lead hand qualifications was widespread, there is no basis upon which to conclude that the alleged "standard" would have an adverse effect on bargaining unit employees generally. For its part, the Union submitted that the College improperly considered Lead Hand as a position rather than a designation, and then purported to establish qualifications in relation to that "position", the effect of which was to give "super seniority" to Lead Hands, thereby protecting them from layoff. By creating a form of "super seniority", it was argued, the College established an unreasonable standard, as the College has greater discretion in appointing a Lead Hand than in selecting a successful applicant on a job posting in accordance with requirements of the collective agreement. Accordingly, the College could designate an employee as a Lead Hand and then rely on lead hand qualifications to protect that employee from layoff. In fact, the Union submitted that, in this case, the College determined which employee would be laid off based on lead hand, rather than ECE, skills, which was patently in violation of the collective agreement, which requires a comparison of the relative equality of employees in relation to the "affected position", in this case, ECE Worker. As to the third criterion, as the College has considerably more discretion in assigning the lead hand designation, the Union submitted that giving "super seniority" to a Lead Hand jeopardizes seniority protections which have been bargained for all employees and, therefore, adversely affects the rights of all employees in the bargaining unit. Finally, the Union submitted that there is nothing in the Day Nurseries Act which requires that supervisory responsibilities be conferred on the most qualified employee. Accordingly, without conceding the point, even if the junior employee would have been the best person to fulfill the lead hand/supervisory responsibilities, it would have been possible to satisfy the requirements of the collective agreement and the Day Nurseries Act by retaining the senior employee and assigning her the lead hand responsibilities. The College submitted, by way of reply, that there was no discretion as to whom to designate as a Lead Hand when there was only one employee retained at the Silverheights location. It was further submitted that where the College is legally required to designate a Lead Hand, it would be "absurd" not to take into account lead hand qualifications. Leaving aside whether the qualifications which are utilised in identifying an employee for layoff could constitute an unreasonable "standard", which is patently in violation of the collective agreement, for the purposes of Article 18.3.3, in view of the Board's determination with respect to the third criterion set out in that Article, it is unnecessary to decide that issue. In order to satisfy this criterion, it is necessary for the Union to establish that the "unreasonable standard" adversely affects persons in the bargaining unit apart from the potential grievor(s) who have not grieved. See Re Algonquin College and Ontario Public Service Employees Union, December 4, 1983 (Weatherill (unreported)), referred to in the George Brown College decision and in Re Niagara College of Applied Arts and Technology and Ontario Public Service Employees Union; Union Grievance Number 93A748, November 25, lgg3 (Brown (unreported)) (the "Niagara College" decision). Nevertheless, it would appear that a standard which affects persons in the bargaining unit other than potential grievors could not be the subject of a Union grievance unless it could be shown to "impact broadly on members of the bargaining unit" (George Brown College). Put another way, in order to qualify as a Union grievance, the standard must "adversely affect the rights of persons in the bargaining unit taken as a whole" (Niagara College) or, in other words, "have ... a widespread impact generally on employees in the bargaining unit" (Algonquin College (Kates)). Accordingly, in George Brown College, where the alleged preferentia{ treatment in assigning work to employees who had settled or withdrawn grievances affected only one employee who had not filed a grievance, the majority of the board rejected an argument that the third criterion had been satisfied on the basis that the college's conduct would deter other employees from pursuing grievances to arbitration. As well, in Niagara College, in which a Union grievance complained about placement on the wage grid of nine ECE Workers who had been reclassified from Payband 7 to Payband 8, the majority of the board found that the grievance was inarbitrable as the matter at issue related solely to the ECE Workers affected by the reclassification and placement on the grid and did not have an impact on other employees in the bargaining unit. Finally, in the Algonquin College decision, the majority of the board found that the manipulation of qualifications (in that case, a requirement for "on-the-job" experience and a proven ability to work with the departmental supervisor that only the external applicant, a temporary employee who had occupied the position for approximately six months, possessed) on a job posting in order to defeat the candidacy of internal applicants would jeopardize the preference for job vacancies afforded to bargaining unit members and have an adverse effect on all members of the bargaining unit, which satisfied the criteria for an appropriate Union grievance. However, the board suggested that had the qualifications not been manipulated to defeat the candidacy of internal applicants, then whatever qualifications were imposed would have been limited to those employees who in future might have an interest in applying for the job and, therefore, would not have the widespread impact on bargaining unit employees generally so as to warrant a Union grievance. Accordingly, even if the qualifications at issue (being lead hand qualifications) could be said to constitute an unreasonable standard, which was patently in violation of the collective agreement, absent evidence that the qualifications were manipulated in order to promote the layoff of Ms. Solonik over Ms. Chapman, they would not have had the widespread impact on employees in the bargaining unit necessary to support a Union grievance under Article 18.3.3. In this case, although the Union suggested that the effect of taking into account lead hand qualifications was to create a form of "super seniority", thereby protecting the Lead Hand from layoff, there was no suggestion that the qualifications had been manipulated in order to facilitate the layoff of Ms. Solonik over Ms. Chapman. In these circumstances, the only employees who could be adversely affected by the requirement for lead hand qualifications (to the extent it was a requirement) were Ms. Solonik, who did not grieve, and arguably only other ECE Workers in daycare centres operated by the College who could be required by law to have the lead hand designation. Having regard to the restrictive interpretation given to the third criterion in the arbitral jurisprudence, this requirement would not have the widespread impact on bargaining unit employees generally so as to warrant a trade union grievance. In the result, the Board finds that the third criterion set out in Article 18.3.3 has not been met and, · therefore, that the grievance is inarbitrable. DATED AT TORONTO, this 27th day of March, 2003. Chair "David Cameletti" College Nominee See Addendum Attached Union Nominee ADDENDUM Ron Dav~dson Unio~.N~ee ] have observed, that in many pre,.ious awards that determi~g thai a Union grievan~ was innrbinable., tl~y were mosdy majority decisions, 'written N~ding tha~ l find that the provisions ofAnicle ]8.3.:~ arc so ~strictive.~ ttntt it makes it virlunlly impossible for the Union to establish the criteria necessary to saiisfy the narrow interpretation placed upon it,. by Arbitration Boards. It ~ould also be noted, that prior to this grievance bein~ fo~ardnd ~ arbitration the Local Union President wrote to the President of' the College and proposed that the lead hand gesi~natiort be re-classiiiexi to atypical ECE work-er nta ~ of pay, reasonably compile to thai ~ttrr~tly applicable to the lead hand. The resort o£c.~urse, w~ould be to hav~ the lead hands id] completely ~khin t~c ~ of the ~ollcctiw agreement and avoid litigation in the mn,~f'. [Jll the ~T~pOll~, £h~ Lo(~ President r~lucsted to speak with the College President slati~ t~, "I feel very stronsly aborn tnese~ing the ~ labour ~ons climate we have been sbic lo develop between the support sud~'~d the colle~. We see no reason for ggs deliberate challenge and hop~ thai you will consider our mggestion and value of our relationship." ~1?, the Union received no response. It can only assumed, that the employer believ~ that mainudning the tmfenered right of the emplo¥~ to designate wino was to act as a lead h~d, supercedes any need to preserve good labour relations. ~re. wi~h some relucI~ce, most litigations, there ~ no winners, that the real issues remain unresolved and continue to fester.