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HomeMy WebLinkAboutUnion 04-01-23 IN THE MATTER OF AN ARBITRATION BETWEEN: CONESTOGA COLLEGE OF APPLIED ARTS AND TECHNOLOGY The College ONTARIO PUBLIC SERVICE EMPLOYEES UNION The Union AND IN THE MATTER of union grievances respecting the applidation of the collective agreement in printing facilities located at the College. Board of Arbitration: I.G. Thorne, Chairman David Guptill, College Nominee Michael Sullivan, Union Nominee Appearances for the College: Ted J. Kovacs, Counsel Donna Runions, Manager, Labour Relations & Classifications Linda Krotz, Manager, Labour Relations & Classifications (Retired) Kevin Mullan, Vice-President, Finance & Corporate Performance Stephen Case, Manager of Material Services Appearances for the Union: Gavin J. Leeb, Counsel Ann Wallace, Local President Ed Riehl, Grievor Kathy McManus, Grievor Lynn Knowles, Grievor Hearings in this matter were held on December 19th, 2002, March 17th, April 22nd, April 23~'d, April 24th, June 24th, October 30th and November 18~, 2003, at Kitchener, Ontario. AWARD The Union has filed two grievances which raise issues arising out of the College's contracting out of its Print Shop during the summer of 2002. The circumstances in which the contracting out took place were the subject of considerable testimony at the hearing. The contracting out of the work of the Print Shop took a somewhat unconventional form: the three members of the College bargaining unit who had worked in the Print Shop for some years continued to work there as employees of the College. The parties agree that they continued to be covered by the collective agreement in all respects. The first grievance arose after one of the three employees went on sick leave and the contractor hired an employee who, the Union contends, replaced her. It is the Union's position that Appendix D to the collective agreement (applicable to" ... persons employed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence...") applied to the newly-hired employee. Beyond that the Union argues that all work in the printing facilities at the College of the sort done by bargaining unit members continued to be subject to the collective agreement, and explains that the bona fides of the contract regarding the Prim Shop is the subject matter of the second grievance. The College observes that the collective agreement does not prohibit the contracting out of work performed by employees so long as Article 15.8 is 3 complied with: if the contracting out would cause the layoff or involunta~ displacement of any employees covered by the agreement then the Union must be notified in advance and Article 15.3 must then be complied with; however the contracting out did not cause a layoff or involuntary displacement. The College maintains that Appendix D did not apply to the situation of the employee hired by the contractor. Apart from these arguments, ~he College asserts that the Union, by its words and conduct, led the College to believe that it agreed that the contracting out which the College had proposed was acceptable and that the Union was therefore estopped from raising the matters it now grieved. At the beginning of the hearing the Union requested production of the commercial agreement between the College and the contractor, Grenville Management Services Ltd. In an interim award dated December 30~, 2002, this board authorized the production of that agreement subject to certain conditions to protect the confidentiality of commercial information. The issues raised by the parties arise out of events which took place over a period of more than two years from 2000 to 2003. A chronological approach to the evidence is appropriate: it will assist an understanding of the arrangements at the College for printing services before and after the contracting out, and also an understanding of the parties' positions on the College's contention that the Union had accepted and agreed with the form of contracting out which was eventually adopted. The Print Shop 4 For many years the College met its needs for printing and duplicating through its own in- house facilities. Services for the College's several campuses were centralized in a print shop in the maintenance building at the Doon Campus in a physically separate area adjacent to the College bookstore. The services included the production of printed material required by academic staff and for administrative purposes. Services were also prov~ided to students and others on a walk-in basis. In the summer of 2002 the Print Shop was directed by a supervisor who was also responsible for courier and mail services. Three full-time employees, bargaining unit members with significant seniority, carried out the printing, collating, binding, finishing and other work necessary to provide the service. At all material times those employees were Lynn Knowles, Kathy' McManus and Ed Riehl. Their supervisor (in 2002), Vince Albiano, reported to Stephen Case, the Manager of Material Services, who in turn reported to Kevin Mullan, Vice-President, Finance & Corporate Performance. Movement Towards Contracting Out Mr. Mullan described how the College came to consider the contracting out of its printing services. Starting in the year 1995-6, the College had been subject to substantial cuts in government funding. Over the next thee years its budget had been reduced by several million dollars and its complement of full-time staff by about 100 individuals. The College had brought in a process of reviewing the efficiency of every operation in order to identify savings. So far as the Print Shop was concerned, he said, it was realized that the College' s high-speed duplicating equipment had a limited life span and faced growing demand; it would cost several hundred thousand dollars to replace. At the same time it was recognized that new technologies were available, including the supplying of 5 information to users in digital form, and that it was desirable to upgrade the facilities in that way also. In July 2000 the College issued a request for proposals from potential vendors who might provide the College with an internally-located print shop, including the provision of staffing, equipment, maintenance, delivery and bindery services. The College indicated that it would expect the process to lead to reduced printing costs, at the same or improved service levels. It was made clear that the initiative was exploratory. If the College proceeded, however, it would expect the contractor to enter into a long-term relationship for at least ten years. The request for proposals also noted that, if the College should decide to contract out work being performed by members of the bargaining unit, it would notify the Union of this fact in accordance with the collective agreement. The request for proposals included a copy of the Letter of Understanding respecting contracting out dated December 23rd, 1997 (dated November 16~, 2000 in the current collective agreement). The request for proposals projected a tight timetable: the release of the request for proposals on July 19m, 2000; the proposals from bidders due by July 3 lSt; presentations by short-listed bidders on August 2nd; a review of the proposals and the determination of the outcome on August 8th; and a potential start of the contract on October 1st. In response to questions on cross-examination, Mr. Mullan agreed that the timetable was ambitious. It was hoped that the review process could be completed before the College started to get busy about the middle of August, and it was anticipated that bidders could respond promptly since they had already been making inquiries of the College. The request for proposals was distributed to potential bidders on July 19th, 2000. The 6 document was also presented to the staff of the Print Shop at a meeting on the same day. Those present included Mr. Mullan, Mr. Case, Linda Krotz, Manager, Labour Relations & Classifications, and Ann Wallace, President of the local Union. One of the employees in the Print Shop, Mr. Riehl, testified that this was the first he had heard of the possibility that the Print Shop might be contracted out and that he was very surprised. In fact the reaction of the staff and the Union to the request for proposals was unfavourable. On July 20t~ Ms. Wallace prepared a letter directed to all faculty and support staff, informing them that the College was researching the possibility of contracting out the services of the Print Shop'and expressing the concern of the employees in the Print Shop for their job security. Readers of the letter were invited to sign an attached letter to the members of the Academic Operations Committee, in care of Mr. Mullan, urging that the Print Shop not be contracted out. It appears that a number of people did sign and submit the form letter. Copies of individually-drafted letters from faculty members to the President of the College were also in evidence. A document prepared by the three bargaining unit members in the Print Shop, dated August 4th, 2000, promoted the productivity and customer service of the existing operation and advocated the retention and gradual replacemen.t of existing equipment. A poster in the form of a letter from the Print Shop staff, dated August 24th, thanked employees who had supported them. Mr. Mullan testified that the vigour of the opposition to the request for proposals caused the College to adopt a more consultative approach. That, and the fact that many people were on holiday during the summer, delayed the implementation of the timetable which the College had proposed. 7 Proposals were received in response to the request, however, and they were reviewed during the summer by a multi-disciplinary team. The College also considered the proposal made by the Print Shop staff, Mr. Mullan testified. The prequalification review of proposals by the team produced a list of bidders which met the criteria in the request. In September 2000, those bidders were invited to make a presentation of their proposal to the College; among other matters, bidders were invited to show how their wage and benefit packages compared to those of the employees then in the Print Shop. The consultative process ran through August, September and October} Mr. Mullan said. Responses were made to each piece of correspondence received by the College. It then decided to have two open forums on the Doon Campus during the month of October. The Print Shop staff prepared a more detailed proposal dated October 23rd, 2000. The proposal recommended the upgrading of some equipment and the replacement of other items, as well as the adoption of some digital technology. There was a meeting to discuss this proposal and, Mr. Mullah stated, it was put through the same process of examination as the proposals of the other potential bidders including a full costing by the College. He agreed that the preference of the employees and the Union for the continuation of the operation of the Print Shop by the College was clear. Towards mid or late November 2000, Mr. Mullan testified, the evaluation team was arriving at a consensus as to which option before it met the College's original criteria. The choice before the committee was between two proposals for contracting out and the staff/union proposal. The committee felt that the proposal of Grenville Management Services best met the criteria. An 8 exploratory meeting was held with Grenville in November, following which the College decided to negotiate further with that company. There were discussions between the Human Resources Departments at the College and at Grenville, and the Council of Regents. Mr. Mullan understood that there was a feeling that Grenville could meet the requirements of the letter of understanding. The College then decided to meet with the staff to explore their preferences. Mr. Mullan testified about the approach of the College's representatives to that consultation: they knew that the College had the right to contract out the Print Shop operations, that the Letter of Understanding gave some rights to employees if certain conditions were met, and that Grenville felt thb, t it could'meet the requirements of the Letter; the College also wanted to go to the staff with an enriched buyout package so that additional options could be presented to them to see if they were interested. On December 4th, 2000, the College met with the staff of the Print Shop and the Union. The three bargaining union members and Mr. Alviano were present. The College was represented by Mr. Mullan, Mr. Case, John Tibbits, the President of the College, Deborah Croft and Ms. Krotz. The Union was represented by Dan Randall, Vice-President of the Union Local, and Ruth Jensen, Chief Steward. The substance of the College's presentation was summarized in an e-mail sent by Ms. Krotz to the Union later that day: This e-mail is to summarize as succinctly as possible the options presented to-day at a meeting which included management representation, Union representation and the Print Shop employees. Management wishes to reiterate the following: - No decision has been made regarding outsourcing. - The college needs a significant investment in equipment for the future; and secondly the 9 college needs to position itself for the future which involves moving to a digital environment. - The college wants to look after the employees. - The college put forward the following options to the employees to.assist us in making the decision as to whether or not to outsource. Feedback to these options will assist in determining a fair comparison of costs prior to making any decision. OPTIONS: 1.) Employees stay with the company getting the contract; college guarantees salaries to retirement, meaning parity with top of salary, scale in payband as long as in the positions. OR 2). Employees stay with the company getting the contract; college makes a lump sum payment to each. Employees get the salaries for three years as per the' current Collective Agreement; no rollbacks but no guarantees of further wage increases. - We are seeking the employees' feedback by the end of this week ~s to which option they would place the most weight with in order to continue the costs comparison review. Mr. Riehl testified that when he went into the meeting he had not been aware of where the College stood so far as a decision on contracting out was concerned. The employees did not know what private company was involved and the College representatives would not tell them when they asked. The bargaining unit members turned down the two options presented and their decision was communicated to the College at some point after the meeting. They preferred to remain employees of the College. Mr. Riehl's own reason for his decision was that staying with the College was more important to him personally. (Although the other options available to employees in the event of contracting out do not appear to have been discussed at the meeting, it is not in dispute that the employees had entitlements under the collective agreement and the Letter of Understanding.) 10 Once the position of the employees was known, Mr. Mullan had further discussions with Grenville, he said, to see if they could come up with a model that would accommodate the request of the employees to remain College employees in the Print Shop. He found Grenville willing to work with the College to achieve that result since the company saw some advantages in retaining the existing staff. Mr. Mullan had what he called a good faith indication from Grenville and came up with a tentative position which he presented to the employees on December 20th, 2000. In fact there was a series of three meetings that day. At 7:30 a.m. there was a meeting of about 15 minutes between members of the College administration: Mr. Tibbits, Mrl Mullan, Mr. Case, Deborah Croft and Ms. Krotz. At 7:45 a.m. representatives of the Union were invited to join them: Ms. Jensen, Shirley Nequest, Secretary-Treasurer of the union local, and Mr. Randall. At that meeting Mr. Tibbits spoke briefly. Either by him or Mr. Mullan it was revealed that Grenville was the party with whom the College was negotiating. Mr. Mullan then spoke, basing his remarks on speaking notes he had prepared in advance in the following terms; Possible Resolution - The print shop operation could be contracted with the current staff.remaining employees of the College. - The existing supervisor, while remaining an employee of the College, would be the Grenville unit manager. Direction, goals and performance reviews would be part of Grenville's processes. - The three union employees would remain as College bargaining unit employees supervised by the unit manager. - As the current staff.retire, voluntarily move to College or Grenville positions or otherwise leave, the replacement staffwill be hired by Grenville as Grenville employees. - Any staffing requirements that are beyond the existing staff complement will be Grenville staff including vacation, second shift additional staffto handle volume, etc. - This would a transition modification (sic)to a to a fully contracted p~'int shop. It recognizes 11 the preferences of existing staff and ensures the transition is in a positive, internally supported environment. In the long term all positions will evolve to being contractor employees. Mr. Mullan recalled that there was a general comment from Ms. Jensen to the effect that this would be a good compromise for the staff, a comment which he understood to relate to the fact that the proposal was that the staff would remain as empioyees of the College. There was no negative reaction, he stated. He said that he had been apprehensive about what the reaction might be. In fact if there had been a negative reaction, he testified, the next part of the meeting (with the staff members) would not have gone ahead. There would have been no point in continuing if the sentiment was that the proposal was not going to work. At about 8:00 a.m. the three bargaining unit members and Mr. Alviano were invited in. Mr. Tibbits again made brief comments. Mr. Mullan testified about his participation: he said that he reassured the staff that the tentative agreement with Grenville was that the current staff would remain College employees; replacements, however, would be employees of Grenville; this was a transition model since at some point all replacement staffwould be Grenville employees. He recalled that there had been a number of questions from staff: whether printing might take place off-site; indicating that the staff were glad they were remaining as College employees; and indicating some concerns about Grenville. He said that he reiterated that it would require the cooperation of the staff., Grenville and the College to make this kind of arrangement work. He recalled that Ms. Jensen thanked the College for the extended time they had taken and indicated that she thought that this was a good outcome for the staff. Mr. Mullan said that he also indicated that there was a cost with going with this model but one that the College was knowingly going to incur; he did not think that he had gone into detail but 12 his implication was that the proposal was more expensive than traditional contracting out. At the end of the meeting Mr. Mullan felt that the College had an agreement with the Union. Had any objections been brought up, he said, that would have changed his approach in his later negotiations with Grenville. Nothing about the demeanour and comments of those present suggested to him that there was a request for a second consideration. Indeed, until the College received the Union's grievance in July 2002, there had been no indication from the Union that it did not agree with what was proposed at the meeting. His perception at the end of the meeting was that there was relief at what was considered a good outcome. His feeling was that the College had come up with an arrangement which recognized the wishes of the staffand the objectives of the request for proposals. Mr. Mullan was cross-examined about what had taken place at the meeting. Asked whether the Union had been made aware of the purpose of the meeting, he said that he had not convened it so could not say whether the Union had been told of the purpose of the meeting in advance. He agreed that the College had not specifically stated that it was seeking the Union's agreement to what was being proposed, one reason being that it did not have a specific agreement with Grenville; he reiterated that the meeting would determine whether the arrangement proposed would go ahead. He had not, however, told the Union that the matter would proceed only if the Union agreed; the matter was still tentative but he did want to learn the Union's reaction to the proposal. He agreed that he did not offer the Union executive time to consider the proposal; nor did they ask and he had not known them to be timid in that regard. He was asked why the College did not give the staff a .few days to consider what was proposed, to which he responded that the College knew the staff's first 13 preference which was consistently expressed as wanting to stay as employees, and the College therefore wanted to know their reaction to a proposal which accommodated their preference to the extent possible. Ms. Jensen testified about the meeting of De~ember 20th. She said that the Union executive had been made aware that the Print Shop was to be the subject of the meeting but had no idea what was coming. She described the executive's approach as listening and taking notes with a view to discussing afterwards what needed to be done. Indeed, when the College asked at the conclusion of the opening meeting whether the Union had any questions or comments, none were forthcoming: Ms. Jensen explained that this would not have been an appropriate time to make a comment as they did not then have all the details. She did not recall having made any comment in the first part of the meeting along the lines that Mr. Mullan had testified to, i.e. that this would be satisfactory to the employees. In the subsequent meeting, after the members of the bargaining unit had been invited in, she thought that she had said something to make them comfortable, to the effect that this was their opportunity to ask questions. She was certain that she had not said that "this could work really well". Mr. Riehl also testified about this meeting. The employees learned that the College was going to contract out the Print Shop to Grenville but that the staff would be retained as College employees and that was essentially the message. He also recalled Mr. Mullan discussing matters in a little greater detail, including an explanation that the staffwould be replaced by Grenville employees if they moved to another department or quit. He felt that Ms. Knowles might have thanked the President for keeping them on as College employees. The reaction of the employees at the end of the meeting, he 14 said, was that at least they were still College employees but that there was some confusion about how this would work. Ms. Krotz had kept notes of the meeting. It is fair to say that her notes, taken at the meeting (and later typewritten by Ms. Krotz for clarity) generally confirmed Mr. Mullan's account. She did not, however, have a note of any remark by Ms. Jensen during the meeting with the Union executive, nor could she recall any remark by any of the Union officers. There may have been a nodding of heads as the proposal was laid out but she did not recall any comments back and forth. It was suggested to her that it was the practice of these particular officers at meetings to i~eceive information from the College and then to go away and think about it, later coming back w}th a response; that was sometimes what happened, she said, but on other occasions they dealt with situations then and there. She had noted, in the portion of the meeting attended by the Print Shop staff, that Ms. Jensen had said "... deal can work really well...". She agreed that this could have been an expression of Ms. Jensen's goodwill but added that it was her style to say that she had problems with something if that was the case. She agreed that the Union was not specifically asked for its agreement, but she felt that the Union did in fact agree; in this regard she noted the meeting between the Union executive and the College at 7:45 a.m., the fact that nothing had been said to indicate opposition and Ms. Jensen's statement quoted above. She also agreed that, while Mr. Mullan had said that Grenville employees would replace the staff if they le~, moved or were replaced, he had not elaborated on the meaning of replacement; it was not stated that Appendix D would not apply. Immediately following the meeting, Mr. Mullan released a memorandum addressed to all 15 College employees: Due to many' factors, including the provincial support staff contract negotiations and the complexity of the alternatives considered, the print shop review and decision process has been lengthy. The time was well invested as we feel we have a Conestoga solution, one that recognizes our College' s needs and values. We were searching for the right decision and feel that we have found it. We would like to thank the print shop staff for their patience, input and professionalism through this period. This memo is to inform you that we met this morning with the print shop staff and support staff`union representatives to update the print shop review process. The College is in the final stages of negotiations to position our print shop to meet the current and future needs of our staff and students. The College intends to contract the operation of the print shop to Grenville Services, but we are pleased to announce that the four current staff`will remain in the print shop as employees of the College. This unique arrangement will accommodate the staff's desire to remain employees of the College and a stated need to maintain or improve existing service levels while allowing the introduction of new equipment, newer technologies and a greater range of services, especially to students on a retail basis. The synergy of combining the proven human resource base of our exis.ting prim shop staff`and the reprographic expertise and reputation of Grenville will ensure that service levels are maintained or further enhanced. The intended solution meets all three of the criteria set by the College at the outset of the review, namely - maintaining or exceeding service levels, including the introduction of new equipment and technologies, - fair treatment of staff, and - financially more efficient. Transition to Grenville will probably not occur until the spring of 2001. Further information will be released and meetings with staffwill occur as we finalize negotiations. If you require additional information I may be reached at extension 517. Mr. Mullan received no comments from the Union about this memo. 16 The Contract with Grenville The College continued to negotiate towards a contract with Grenville. In late February 2001, it was decided that the contract would be restricted to the operations of the Print Shop. The College's mail and courier services (previously administered with the Print Shop) were transferred to the administration of the Physical Resources Department. There was contact with the Union about the matter in early March. On March 1st, Ms. Wallace sent a list of questions to Ms. Krotz and Mr. Mullan about the contract for the Print Shop. The questions were quite detailed and raised such matters as the date that Grenville was to take over, the eventual ownership' of the Print Shop equipment, whether Grenville would work within the framework of the collective agreement, what training was to be received from Grenville, whether Grenville would be doing printing for outside customers, whether work would be sent offsite, whether the staff would be given a copy of the agreement, whether there would be a change in hours of operation, and other matters. A meeting was held on March 7th to respond to these questions. Those present were Ms. Wallace, Ms. Jensen, Mr. Randall, Mr. Riehl, Mr. Mullan, Mr. Case and Mr. Alviano. Nothing that took place at that meeting, according to Mr. Mullan, made him question that the College had an agreement arising out of the meetings of December 20th. He considered it very positive that the Print Shop staffwas asking for a copy of the agreement when it was signed. (The Union received a copy of Section 5 of the agreement - the portion relating to personnel - on or about August 2ha, 2001 .) The agreement with Grenville was signed on July 27th, 2001. It gave Grenville the exclusive right to provide duplication, bindery and other services on the College's premises for a ten-year 17 period. The College provided the premises without charge and was to be responsible for the direct costs of operation of the copy centre services. Grenville guaranteed prices, subject to increase in the event of increase in its costs. Most renovations were to be the responsibility of Grenville. The College agreed to make available at its cost during the first six months of the contract the existing Print Shop equipment, after which Grenville was to be responsible for the provision of all equipment required to provide its services. Section 5 of the contract dealt in detail with the arrangements between the College and Grenville regarding personnel. The following portions of Section 5 are those most relevant to the positions of the parties in this heating: SECTION 5 - PERSONNEL The general intent of the parties is that the four current employees of the College print shop shall continue in their positions as employees of the College, maintaining all rights and responsibilities of College employees including adherent to the Collective Agreement for the three unionized staffas identified in Appendix E. Should any or all of the current College print shop employees cease to be employed in the print shop for any reason, Grenville shall be responsible to determine the staffing requirements of the Copy Centre at that point in time and for the hiring and employment relationship with subsequent staff All replacement or additional staff shall be employees of Grenville and shall have no employment relationship with the College. (a) Current College Employees of the College print shop. The College Employees of the Copy centre shall be only those individuals listed in Appendix E. (b) Status of Conestoga Employees. Nothing in this Agreement shall constitute or create an employee-employer relationship between the existing Conestoga print shop employees and Grenville. The parties agree and acknowledge that the execution oft.his Agreement does not alter the fact that the Conestoga Employees remain employees of the College throughout the entire term of this Agreement. As such, the College agrees that it will be responsible for all rights and obligations owed to the Conestoga Employees under their respective contracts of employment, including but not limited to, the payment of any termination and or severance 18 pay. The College agrees to indemnify and save Grenville harmless from any claims made by such employees. (c) Working Conditions. Both parties recognize that the terms and conditions of employment for College Employees shall be as defined in their respective Collective Agreement or terms and conditions for administrative employees. Upon request, the College shall provide Grenville copies of such terms and conditions. (e) Subsequent or Additional Staff. In the event that any staff opening is created within the Copy Centre, following the execution of this Agreement, and further, throughout its entire term, Grenville will fill said opening, if required to meet services levels, by hiring an individual they deem to be acceptable. In this regard, Grenville is the employer of such staff and there is no employer and employee relationship created or in any way implied with the College. Grenville and its employees are not parties to the Collective Agree~ne. nt in place between the College and the Conestoga Collective Agreement in place between the College and the Conestoga Employees bargaining unit. The parties agree and acknowledge that any and all decisions as to the hiring of these employees, including the choice of candidate remain the exclusive domain of Grenville. Further, the parties agree and acknowledge that any employees hired under this clause are Grenville employees, and as such, remain Grenville's exclusive responsibility. Further still, the parties agree that any decisions and/or steps relating to, amongst other things, the discipline, transfer or termination of said employees, are the exclusive domain of Grenville. However, these employees shall be subject to the rules and regulations of the College while they are on the College's site ... (g) Payment for College Staff. Grenville shall pay the College on a monthly basis for the each College Employee working in the Copy centre according to the following formula: Number of weekdays in the month x Applicable per diem from Schedule E Weekdays shall exclude Saturdays and Sundays but shall include all holidays, sick days and vacation days. Should a College Employee cease to be employed in the Copy centre for any reason including retirement, resignation or termination, the amount payable by Grenville for that month shall be calculated only to the date of such cessation. Additionally Grenville shall pay the College for actual overtime payments to the unionized College Employees if authorized in accordance with Article 5(i) below. (i) Overtime. Total overtime worked by all College Employees shall not exceed one hundred (100) hours per year without the prior written authorization of the College Manager of Material Services and the Grenville area manager. 19 As will be seen, Mr. Mullan was cross-examined at some length about the terms of the contract and the degree to which the College may have retained control over the Print Shop, in light of events after the signing of the contract. Beginning of the Contract On June 21st, 2001, about one month before the contract between the College and Grenville began to operate, a meeting was held at which the future operation of the Print Shop was discussed. Mr. Case, Mr. Mullan and Ms. Krotz were present for the College and Ms. Wallace for the Union, together with Mr. Alviano and the three bargaining unit members. The minutes of the meeting indicated that there would be a meeting at the beginning of every week to discuss Grenville, equipment issues, questions relating to the College, and other business. It' was recorded that the supervisor, Mr. Alviano, would approve and assign printing requests, allocate vacations, approve overtime within the 100 hours available under the contract, and schedule work. All work-related direction of the Print Shop staff was to come from the supervisor, to whom requests from the College Manager of Material Services and the Grenville area manager would be directed. Some difficulties arose. A memo from the Division Manager of Grenville, dated July 31st, 2001, restricted access to the Print Shop location to the employees, two Grenville managers and any individuals to whom Grenville might issue a key. The Print Shop staff complained to Mr. Case that there had been a practice of open access to the Print Shop by faculty and staff, whereas now they were not allowed past a newly-installed counter. A memo to all College staff dated August 8th, 2O clarified, among other matters, that the former practice would continue so far as faculty and staff were concerned. Mr. Riehl found it significant that Mr. Case was the person who resolved the matter. On September 30th, 2001, Mr. Riehl sent a lengthy memo to Mr. Case raising two matters. He pointed out that Grenville had required him to charge a price for an order of two-sided copying on the customer's own stock which was greater than had been charged in the past. He found Grenville's manager was resistant to any correction, and he took it up with Mr. Case because of the assurance that had been given that prices would not rise. He also pointed 6ut that a' piece of equipment was no longer to be used and he was concerned that this breached a commitment to have the bulk of College work done on-site and not to remove equipment until its replacement was in place. He raised these matters with Mr. Case, he said, because Mr. Case was his boss's boss and tended to get results. He testified that the pricing issue was corrected within two to three weeks but that the equipment in question continued not to be used. Mr. Alviano gave notice of his departure early in 2002. It appeared that he would be replaced by a supervisor employed by Grenville. On February 14th, 2002, the Union filed a grievance whose purpose, Mr. Riehl testified, was to raise the issue that a non-College supervisor would be supervising College employees. The grievance was withdrawn on March 22ha. The Union put in evidence a memo from the Union to the College setting out the Union's understanding that Mr. Case was the manager that the three remaining College employees would report to and stating that the Print Shop employees would bring to Mr. Case any issues which they believed needed to be addressed in 21 connection with the Print Shop and their terms and conditions of employment. Mr. Riehl testified that the employees had been asking to be assigned another College manager close to the Print Shop, possibly the supervisor of the adjacent book store. That did not happen. Mr. Riehl continued to bring his concerns to Mr. Case after Mr. Alviano left. Ms. Knowles also communicated directly with Mr. Case because, she said, he was her boss. On July 4th, 2002, she e-mailed him to remind him that she had two weeks' vacation booked starting on July 8*h, and to request that she might cancel the second week. Mr. Case replied that he had talked to Nicole Palmquist (who had been hired by Grenville to replace Mr. Alviano) about this and that she would make the appropriate adjustment. The events which gave rise to one of the grievances before this board' occurred in July 2002. Ms. McManus went off' on sick leave early in the month and she was off until late October. Ms. Palmquist, in her own position as supervisor for only about a month at this time, then hired an individual, Gail Dakin, who had approached her asking for a job shortly before. Ms. Dakin was hired on July 29t~, 2002, as a temporary replacement for Ms. McManus. On July 24th, Mr. Riehl sent an e-mail to Ms. Wallace objecting to the forthcoming hiring as a violation of the collective agreement and urging a grievance. The grievance was filed the next day. Mr. Riehl continued to address various concerns to Mr. Case. An example of his approach was a memo he sent to Mr. Case on August 2nd, 2002 (with a copy to Ms. Palmquist) in which he set out a variation he proposed to a day of holiday that he had booked and asked Mr. Case to let him 22 know if he had a problem with this arrangement. Mr. Case responded that he would forward the request to Nicole. Similarly, on August 16th, he sent a memo to Mr. Case reminding him that he would have to leave early the following Monday for a dentist appointment and saying that he would inform Nicole for staffing purposes. Mr. Case replied that he had discussed the topic of doctor and dentist appointments with Nicole and the way he himself handled it. He reported that Nicole felt that his practice would be acceptable if there was time to plan and both parties could agree. On August 17th, 2002, Mr. Riehl e-mailed Mr. Case to report that it was a Saturday, that he was working overtime and that there were equipment problems, and asking for dePendable machines so that adequate production could be done. Mr. Case replied on August 19th with quite a detailed e-mail, explaining his discussions with Grenville about the anticipated volume given the age of the machines in place. At the hearing Mr. Riehl explained that he took this matter to Mr. Case because he considered him his boss. Ms. Palmquist, he said, was familiar with all these things but he wanted to make sure that Mr. Case was aware. On September 4th, 2002, a meeting took place between Ms. Palmquist, Mr. Case and the Print Shop employees. The arrival of new equipment was discussed as were matters involving telephones, e-mail and web access. This was evidently one of the regular meetings which had been anticipated. In his summary of the meeting, Mr. Case referred to the need for a positive environment and to avoid "airing our laundry" in front of clients. He indicated that the start had been awkward, that emotions on all sides were high, and that things were said that might have been considered negative. From that day forward problems were to be worked out through communication. He also referred to a question 23 raised by Mr. Riehl regarding the authority of Ms. Palmquist to change a process or production method; Mr. Case had responded that she was within her authority to do so and that he would be involved on issues relating directly to the contract or if staff requested advice. His memo included the words, "I will force my involvement ifI feel that the College is in 'harm's way'". In late September, Mr. Riehl was in touch with Mr. Case about shortages in his and Ms. Knowles' paycheques. These matters were sorted out, he believed, by Mr. Case. In December 2002, a discussion between Ms. Palmquist and Mr. Riehl about customer service, negative comments and personal views in the workplace led to a suggestion by Ms. Palmquist that Mr. Riehl could either keep his comments for an appropriate time or leave the area and take his concerns directly to Mk. Case. Ms. Palmquist reported to Mr. Case that Mr. Riehl then told her that he no longer would speak to her without a witness present. Mr. Case then met with Mr. Riehl. Whether his intervention on this occasion led to a solution was not clear from the evidence. In September 2002, the College sold some of the equipment which it owned in the Print Shop to Grenville. The Union was concerned that these sales were improvident since they.took place at figures considerably lower than the remaining undepreciated value of each piece of equipment. The evidence was that the College used a declining balance method of depreciation in order to determine eligible capital cost allowance. The purpose of this was to amortize capital costs and the undepreciated balance did not reflect the fair market value of the asset in question. 24 The effect of this course of dealings between the College, Grenville and the employees in the Print Shop was a matter on which the Union placed some stress in argument. The Employment of Ms. Dakin The hiring of Gail Dakin provoked the Union's grievance that the College was in violation of Appendix D when that hiring took place. The parties drew out the facts surrounding the hiring, the identity of the employer, and the duties of the position in support of their ai-guments in connection with this grievance. As mentioned above, Ms. McManus went offon sick leave in July 2002, eventually returning in October of that year. Oail Dakin had previously approached the new supervisor of the Print Shop, Nicole Palmquist, seeking employment. When Ms. McManus took sick leave, Ms. Palmquist approached Ms. Dakin for an interview. She hired her, initially for the period from July 29~ to August 30th, 2002, into a position described as "floater". It is not in dispute that Ms. Dakin was hired by Grenville Management Services Ltd. and not by the College and that Grenville did not purport to apply the provisions of the collective agreement to her employment in any respect. Ms. Dakin continued to work after August 30th, and on October 24th she entered into an indefinite extension of her contract from September 1 st onwards. Ultimately she worked continuously from July 29th, 2001, to February 14th, 2002. 25 Before she went on sick leave, Ms. McManus carried out a variety of duties in the Print Shop but was employed primarily on duplicating machines. While Ms. Dakin had had some experience in duplicating, there were a number of processes for her to learn when she arrived in the Print Shop and she was trained in the various operations by her co-workers. At least initially her work consisted mainly of finishing and binding. She also worked in reception handling cash sales, applied a new pricing policy, did inventory, received supplies and took mail and shipping to the appropriate departments in the College. Thus her duties during Ms. McManus' absence were not identical to those Ms. McManus had performed. In fact the position description form forMs. McManus' position indicated that six months to one year of practical experience would be required in order to fulfill the requirements of the position. When Ms. McManus returned from her sick leave she did mainly photocopying and pricing the jobs, since Ms. Dakin was doing the other aspects of her job as long as she was there. Complaint under Section 77 of the Colleges Collective Bargaining Act On March 14t~, 2003, shortly before the second day of hearing in this matter, the College gave notice to the Union in the following terms: As per Article 15.8 of the Support Staff Collective Agreement we are giving notice of our intent to fully contract out the Print Shop and understand that we will follow the process outlined in Article 15.3. The parties advised us that the Union had filed a complaint with the Labour Relations Board 26 under s. 77 of the Colleges Collective Bargaining Act. The parties have advised us that that matter has been held in abeyance pending the outcome of this arbitration. Submissions of the Parties Both counsel made detailed and thorough submissions of which only a summary is possible here. The Union saw four issues arising out of the evidence. The first of these was the'Union's contention that the work being done in the Print Shop continued to be subject to the collective agreement after the contract with Grenville had been entered into. The Union considered that the very fact that the collective agreement was applicable to the three employees in the Print Shop was a recognition that it was bargaining work to which the collective agreement should apply. While Grenville had taken over the oversight of the Print Shop and a degree of responsibility, what had been contracted out, at most, was the equipment; the work of the employees had not been contracted out but remained within the bargaining unit. In this respect, counsel referred to Re Stelco Inc., Hilton Works and United Steelworkers of America, Local 1005 (2002), 104 L. A.C. (4th) t 11 (Marcotte) and Re Government of Province of British Columbia and British Columbia Government Employees' Union (Podger) (1990), 14 L.A.C. (4th) 308 (Chertkow). Moreover the evidence showed that the College continued to have an extremely close relationship with the work being performed: the work was being done for the College in its premises under the frequent supervision of the Manager of Material Services, in circumstances in which even the sale of equipment by the College to Grenville 27 was on extremely favourable terms. This was not a normal contracting out arrangement. Counsel referred to Re Regional Municipality of Ottawa-Carleton and Canadian Union of Public Employees, Local 503 (1994), 46 L.A.C. (4th) 251 (Mitchnick). In the Union's view, further convincing evidence that the work remained in the bargaining unit was provided by the College's own insistence that it had an agreement with the Union that the collective'agreement did not apply: but for that alleged agreement, the collective agreement must have applied. The second issue which the Union argued was that it had in fact made no such agreement. If there was an agreement, the College must be in a position to demonstrate what the terms of the agreement were. If the College contended that the Union had agreed to waix)e the application of the collective agreement, there were well understood prerequisites to a finding of waiver. The Union relied on Re Board of Education for the City of Toronto and Canadian Union of Public Employees, Local 3111 (1997), 67 L.A.C. (4th) 144 (Joachim). Counsel reviewed the evidence of the meetings of December 4th and December 20th, 2000. He suggested that if the College, knowing of the Union's philosophical opposition to contracting out, wanted an agreement not to enforce stipulated provisions of the collective agreement, it should have stated that to the Union. Understanding that the College asserted that the Union was bound by an estoppel, counsel emphasized what he said was a lack of detrimental reliance by the College on any promise by the Union: there was no evidence that the College's choice was the more expensive alternative; in any event, any such reliance was self- incurred. The third issue which the Union identified was its contention that the onus was on the College 28 to prove a waiver by the Union or an estoppel against it: Re United Rubber Workers, Local 80 and Uniroyal Ltd. (1972), 24 L.A.C. 408 (Palmer) and Re International Nickel Co. of Canada Ltd. and United Steelworkers, Local 6500 (1975), 9 L.A.C. (2d) 173 (Gorsky). The Union described the fourth issue in this way: assuming that the collective agreement applied to the work in question in general and that there was no agreement to waive the application of Appendix "D", then the circumstances of Ms. Dakin's hiring compelled the application of Appendix "D". The evidence showed that Ms. Dakin was hired on a temporary basis to replace Ms. McManus who was on sick leave. The Union acknowledged that the requirement'to apply Appendix "D" would not continue past the time that Ms. McManus returned to work. Before that date, however, the test was whether Ms. Dakin was doing bargaining unit work and replacing Ms. McManus and not whether she was doing precisely the same duties as Ms. McManus had performed. The Union referred to Re United Electrical, Radio & Machine Workers, Local 507, e Canadian General Electric Co., Ltd. (1954), (Fuller). Dealing first with Appendix "D", counsel for the College argued that paragraph 1 set up a three-part test: it spoke of "persons employed" and not of "persons replacing bargaining unit employees", and the implication must be that the person replacing must be a College employee; such persons must be employed on a casual or temporary basis; and such persons must be employed to "replace bargaining unit employees absent due to vacation, sick leave or leaves of absence". In the College's view the Union had not made out that the first and third tests were met. With respect to 29 the first test, the College did not employ Ms. Dakin and when she left she was not released by the College as paragraph 6 contemplated. So far as the third test was concerned, Ms. Dakin did not replace a bargaining unit employee. Replacement must mean taking the place of an absent employee and paragraphs 2, 3 and 6 were consistent with this concept. However Ms. Dakin was a floater and her duties were clearly different from those of Ms. McManus. She could not have learned and filled the requirements of Ms. McManus' position. Counsel referred to Re Conestoga College and Ontario Public Service Employees' Union (unreported, December 18th, 1995, Shime) as an example of the non-application of Appendix "D" when a replacing employee did not perform all of the duties of the employee replaced. ' If the board were not satisfied that Appendix "D" on its face did not apply to the situation, counsel invited us to consider an alternative argument arising out of the form of contracting out chosen by the College. It was clear to everyone, he suggested, that if the College did not enter into the hybrid arrangement with Grenville that it had chosen, then the alternative was full contracting out. The hybrid arrangement involved the continued employment of the three members of the bargaining unit in the Print Shop as college employees. To achieve this the reality was that the best that could be done was done, but it was obvious that Grenville would not operate with o.nly College employees. The essence of this argument, he made it clear, was that the Union's words and conduct estopped it from asserting the application of the collective agreement to replacement employees. The principle of estoppel had been found to be applicable in College cases and the actions of the local Union alone could give rise to an estoppel: Re St. Lawrence College of Applied Arts and Technology and Ontario Public Service Employees' Union (unreported, June 26th, 1995, MacDowell). Moreover, a party's 30 intentions could be inferred from its conduct and an express statement was not essential: Owen Sound Public Library Board v. Mial Developments Ltd. et al (1979), 102 D.L.R. (3d) 683 (Court of Appeal). In this case, counsel argued, the estoppel arose out of the sequence of events which started on August 19th, 2000, when the College advised the Union of its request for proposals. Contracting out was clearly an option available to the College. The Union had pushed for something other than contracting out and the employees involved had stated their preference. The meetings of December 20th, 2000, must be seen in the context of what had gone before. At those meetings the College had stated that it would make some concessions in order to look after the staff and the response of the Union, while admittedly faint, was one of agreement. It was significant, in the C011ege's View, that the Union had not raised an objection until the grievance of July 2002. Counsel also argued that the nature of the questions raised in March 2001, taken in context, supported the College's position. Further, the copy of Section 5 of the agreement with Grenville, provided to the Union in August 2001, made clear what employment arrangements were being put in place; the Union did not speak up, he suggested, because these arrangements were what it expected. The College had relied on what the Union had indicated to it by going forward and entering into this arrangement with Grenville on the basis of the Union's acceptance and the Union had in fact won something as a result. The Union could not now resile from what it had agreed to on December 20t~, 2000. Dealing with the other grievance before this board, counsel noted that the grievance stated that the College' s relationship with Grenville was in violation of the collective agreement and referred to Article 1.1. The College's view was that the Union could show no violation of Article 1.1. The College had gone out of its way to say that the collective agreement would apply to its three 31 employees in the Print Shop. Decision The portions of the collective agreement most relevant to the parties' positions are: 1. RECOGNITION 1.1 Exclusive Bargaining Agent The Union is recognized as the exclusive bargaining agent for all Support Staff employees of the Colleges, save and except: ... 15.8 Contracting Out - Union Notification If the College decides to contract out work or services which are being performed by employees at the commencement date of this Agreement which would cause the layoff or involuntary displacement of any employees covered by this Agreement, the College will notify the Local Union and OPSEU Head Office four (4) weeks in advance of the written notice being provided to the employees affected. The processes in Article 15.3 shall be followed. Letter of Understanding dated November 16, 2000 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. An employee given notice of layoff or reassignment as a result of his/her work being contracted out may elect to take an unpaid leave of absence of up to one (1) year, in order to accept a job offered by the contractor. The leave will begin on the date that the employee commences employment with the contractor. If the employee wishes to return to the College, 32 he/she must provide at least one hundred and twenty (120) calendar days written notice of his/her intention to return at the end of the leave. The College will then apply Article 15.4.3, as appropriate. If no position can be identified pursuant to Article 15.4.3, no new notice of layoff under 15.4.4.1 need be provided to the employee. The College will not provide wages or benefits to the employee duri.ng the leave. This letter of understanding will expire on August 31, 2003, but should the parties not have reached a new Collective Agreement by that date, the letter shall continue to operate until the earlier of a Memorandum of Settlement being entered into or there is a right to strike or lock- out. APPENDIX D TEMPORARY EMPLOYEES 1. The terms of this Appendix apply to persons employed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence. No other provision of the Collective Agreement shall apply to such persons unless otherwise stated in this Appendix. 2. The rate to be paid to such an employee shall be the appropria;~e rate applicable to the classification of the replaced employee, subject to progression steps applicable to the replacing employee, where appropriate. 3. The replacing employee shall be subject to the deduction and remittance of Union dues, as provided in Article 5.4 of the Agreement. 4. The Union shall be notified at the commencement of employment, and upon expiry of the term of employment. 5. In addition to the hourly rate of pay, the employee shall receive an additional six per. cent (6%) in lieu of all fringe benefits, including vacation and holiday pay. 6. The employee may be released by the College before the termination date of any term of employment, for replacement need changes or operational requirements. 7. Employees covered by this Appendix are entitled to utilize the grievance procedure to enforce the rights contained in this Appendix. 8. If an employee is appointed to a regular bargaining unit position after September 23, 33 1997, he/she shall be credited with full seniority, after completion of the probationary period, based on full credit for Appendix D service calculated at a day' s seniority for each day worked (261 days of work equals one (1) year). When an Appendix D employee is appointed to a regular bargaining unit position and has previous service as a part-time Support Staff employee, seniority shall also be credited in accordance with Article 14.3. 9. For the purposes ofjob competitions,,in addition to any other factor that the College considers relevant, consideration will be given to service with the College. It is appropriate to deal with the College's estoppel argument in priority to the other issues which were argued since if it is made out in the terms which the College asserts, the application of Appendix D (and the more general question of the application of the collective agi;eement in'the Print Shop) need not be addressed. The College's position, as we understand it, is not complicated: it is that the Union was estopped from taking the position that the collective agreement applied to replacement employees in the Print Shop; put another way, the argument is that the collective agreement was to apply in the Print Shop only to the three bargaining unit employees and only so long as they were there. It is helpful to consider the bearing the collective agreement might have on a decision by the College to contract out the work of the Print Shop. Article 15.8 does not prohibit contracting out but does require the application of the layoff and bumping provisions of the agreement if the contracting out would displace employees who had performed the contracted-out work. Thus the College could have contracted out the work of the Print Shop in its entirety, notifying first the Union and then the affected employees and bringing the provisions of Article 15.3 into operation. The three employees might also have had the possibility of becoming employees of Grenville or possibly of 34 taking a leave under the Letter of Understanding. It will also be helpful to consider briefly the nature of an estoppel of the sort the College alleges. The College must show that the Union made a representation to the College intending that the representation should be acted upon, that the College did act on the representation and did so to its detriment. This technical expression is perhaps better understood in the concrete form it takes in this case. The College says, and must prove, that the Union indicated to it by its words and conduct that it would not seek the application of the collective agreement to employees in the Print Shop other than the three existing bargaining unit members. Essentially, the College says, tha~t the Union agreed that the collective agreement would not apply to employees other than those three. In reliance on that assurance, the College says, it entered into a contract with Grenville which was less cost effective for it than the straightforward contracting out which it otherwise would have undertaken. It will not be enough to look only at the meetings of December 20~i 2000, since what was discussed on that occasion can only be understood in the light of positions the College and the Union had taken earlier. It was well understood that the Union was opposed to contracting out in general. When the possibility of contracting out of the Print Shop came up, the Union acted immediately to counter it, and the affected employees were also strongly opposed. The campaign waged by the Union and those employees made that clear. Indeed the three employees did more: on two occasions they made presentations to the College advocating that the Print Shop be kept a College operation. However 35 the College continued to entertain the prospect of contracting out. The Union and the employees knew this and were in fact concerned that the College was pressing ahead with contracting out and giving too little opportunity for alternatives to be brought forward. Of course the College was within its rights to pursue contracting out if it wished. There is no doubt, in any event, that the employees and the Union knew that contracting out was a real possibility. Against this background the meeting of December 4th, 2000, was significant. It was clear that the College was very interested in contracting out and was looking at. not only the consequences of Article 15.8 and the Lettei- of Understanding but also at avoiding layoffs by raising the possibility that the employees might become employees of the contractor with the benefit of guarantees or compensation from the College. The reaction of the employees - that they wanted to remain as College employees-in the Print Shop - led to the further meeting on December 20th. The process on December 20th was not ideal. The meeting was scheduled to take place in three fifteen-minute segments and it appears that the schedule was adhered to. So far as the latter stages of the meeting were concerned (when the officers of the Union and then the employees were involved), it is our impression that much of what was said consisted of the College's explanation of what it intended to do. As a result it is more difficult to determine whether a meeting of minds took place than might otherwise have been the case. The College did not set out its position as a proposal and did not expressly ask whether the Union agreed with it. It is unfortunate also that a written summary of what became Section 5 of the contract was not available; although the matter was under negotiation at the time, a draft of the section would have made the College' s intentions very clear and might have prompted an explicit response from the Union. 36 That said, we must evaluate what did take place on that occasion. Up to that point the possibilities for the employees seemed somewhat restricted. They had made it clear that they were not interested in becoming employees of Grenville, even with guarantees of wage levels or a lump sum payment. They had indicated that they wanted to remain employees of the College, implicitly continuing to work in the Print Shop, but by that time there was little basis for them to think that the College was going to maintain the Print Shop as an in-house operation. If contracting out took place the likelihood was that they would remain as employees of the College but would have to move away from the Print Shop. When the College then produced a plan which would allow the employees to stay with the College and yet work in the contracted-out Print Shop, it is understandable that there would be interest and acceptance rather than disagreement. The most complete accounts we have of the meeting suggest that that was in fact the reaction: the reaction was favourable. From the point of view of an estoppel, the reaction of the Union officers was the more significant aspect. This was an important moment in the discussion of the employees' future. The College was responding to the wishes the employees had expressed and it was setting out in some detail what this would mean, and especially that the three employees would remain bargaining unit employees but that replacements would be Grenville employees and that this situation would be part of the transition to a fully contracted-out Print Shop. It was obvious that the College was proposing that the benefit of remaining as bargaining unit employees was to be available only to the three individuals involved. It was a time for the Union to speak up if they disagreed. In fact, such evidence as we have indicates that they did not disagree. Ms. Jensen's statement to the effect that the arrangement, "could work really well" - a statement which we find was made in the course of the portion of the meeting with the employees - was properly understood by the College's representatives as indicating the Union's 37 response. Obviously in retrospect it would have been preferable for the College to lay out its proposal and expressly ask the Union whether it was in agreement. However in context and on all the evidence we find that the Union did indicate its agreement to the College. Further, we accept Mr. Mullan's evidence that the College would not have gone ahead with an arrangement that kept the three employees as College employees in a contracted-out print shop unless the Union had agreed. We also accept his evidence that this way of proceeding was more costly for the College than a straight contracting out would have been. In these circumstances we find that the elements of an estoppel have been made out as asserted by the College. The Union could not then take the position that the collective agreement applied to any individuals in the Print Shop other than the three employees. Whatever may be the proper interpretation of Appendix D, therefore, it could not apply in this specific situation. Some further comment should be made about the considerable amount of evidence directed by the Union to the question of whether the College's dealings with Grenville and its own organizational arrangements brought all bargaining unit work in the Print Shop under the collective agreement after the contract with Grenville was entered into. In view of our finding that the Union could not assert the application of the collective agreement to other than the three individuals involved, there is no need to address this evidence in detail. We can say that the evidence indicates to us that the contract between the College and Grenville appears to be a straightforward commercial 38 agreement which does not involve the College in the continued management of the Print Shop. The arrangement was a difficult one for the employees, however, who were to be governed by the collective agreement of the College but subject to the supervision of Grenville. For the foregoing reasons the grievances must be dismissed. Dated at Kingston, Ontario, this'~J~41ay ~)f January 2004. I.G. Thorne, Chairman I concur "D. Guptill" David Guptill, College Nominee I dissent "Michael Sullivan" Michael Sullivan, Union Nominee - Dissent to follow Michael J. Sullivan t..iNiON NO MI ~ =,.I JACOB $IREt_'.~ ILO, BOX 74 BUS.(519) 655-2822 13'AVIS'lOCK. ONTARIO NOB-2R[~ RJ~S_(~. t. } 655-2428 . s,~d~e,8:~porchl~.ght.ca CELL ~519) 272-34! ! Feb.= CONSESTOGA COLLEGE/OPSEU FILE x. l..~mon Nominee Dissent ~} am dissemmg on Arbiirator Thomes finding of estoppel on this ~. ievance. Da page (3)of this award (i ~'~ pm'abvap'h) Nh-, Thorne sta~es that 'lhe college esse~s ~ha't lhe Union by its words and conduct le~ the College to believe }bat i.t agreed dmt the contracting out which the College had propo~d was }cceptable and ~ha~ the umon was Owrefbre estopped from raising the ~' - ~ xsg6rouslyby matiers i~ now ~ieved'. Th~s was disputed by the omm~ ~Jmon coun.se~, f!~roughout the hearj, ng,In hct hhe e~4&nce Mvan.~d by the Union showed that Ms. W~tace prepm'ed a letier f~ all i~cuttv members m Conestoga College expressing the concerns of ~e ~ople in the print-shop. L, mon had r~emedl.y asked fire e~loyer to disclose lhe comply fl~m }~as revolved m fl~e contracting, out ~d ~'as re~medty retired any December 20, 2000 is a pivotal day in these preenings and a &~te ~at management and the Umon disa ee 0n as to the omcome of the meetings onduct~, tt is a.~d that Management ~d Ad.minis~iion met for about ~ 5 ~nutes to di~uss the presenmtioa ttmt was to'~ delivered to the Union at 7:45 am, A.t 7:45 am tl~e Mmmgement team invited the Union gcp~senmu~es m join the meeting, to be fBllowed ~y a fu~her meeting at $:00am with the members of the print-shop. There ~e m'o different ~rsions 6f d~e outcome of this meeting ~. M~tlans exfidence is fl~ar he recalls Ms. Jensen made a comment ttmt fire M chael. J. Sull van ;~"~,','~o~ p~'~oosai would be a good compromise ~br t'he stuff c~f~he print- ~>,.,....~., ,,.~, Jensen ~tat~u that she would not have made such a comment. ~d ithm she ~'eques!cd more t/me to respond to the employe?s ~sition_ Jensens statemem was indeed backed ap by Ms. ~otz who dmh.ng her examinmion in-chief said she did not recall Ms_ Jensen. or any other Union of~cal m~.ing m~y commems dm'lng the meefingsi tilde denmuon oi estoppe~ as d.¢f~ed by Blacks Lar~' Dictior~arv states; ?Estoppel is the d~tm}e that ~events a person frm adopting a ~cfion, or a~itude inconsistem with an earlier posi~on if'it would result N an ~aiu~' to someone else". . {the Union.s ~osition did not change throughout th~ days 01.at led upto tb.e ~onmac~ng om of the print-sb.op, OPSEU was consistent ia its ~siti.on that ~t ~'ould ~ ~iag the contracting out of the prmI-shop at Conestoga ~oiJege, I~, ~ct tlmt the Umon wa= ~lent at the D~ember 20, 2000 meeting ~s not an i~.dicato~ ttmt the Union a.~eed with the employers position., Certainly a nod of ones lxead or ~ infon.nal statement can not be t~en as the k}nion=s approval for fl~e con. aactmg out at Conestoga College. ~or ~1 of'the- m~ot~ lis~d a~ve I would n.ot have relied on the Dot,ne of ~.s~oi.,pet in this ma~er. Mmh~l ,~. Sullivm~ ; Umon Nominee .