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HomeMy WebLinkAboutUnion 03-04-22IN THE MATTER OF AN ARBITRATION BETWEEN: LOYALIST COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 145 AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE #02C227 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR PETER M. HETZ, COLLEGE NOMINEE RONALD J. KELLY, UNION NOMINEE APPEARANCES FOR THE COLLEGE: FRED G. HAMILTON, Q.C. FOR THE UNION: GAVIN J. LEEB, COUNSEL AWARD The grievance in this case claims that the College failed to provide written notification to the Local Union and OPSEU Head Office of the contracting out of cleaning work in violation of Article 15.8 of the collective agreement, which provides: 15. LAYOFF/RECALL PROCESS 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. In addition, the following provisions merit consideration: 3. MANAGEMENT FUNCTIONS 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the College to: - maintain order, discipline and efficiency; - hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance as provided for in this Agreement; 2 - generally to manage the College and without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. 17. JOB POSTINGS/PROMOTIONS 17.3 Temporary Assignments 17.3.1 Temporary Postings VVhere the College has at least four (4) weeks' notice of a temporary vacancy in the bargaining unit which is expected to be of more than four (4) months' duration, the College shall post the temporary vacancy so that bargaining unit employees can indicate their desire to be selected for such vacancy. Recognizing that the College reserves the right to select a person in the bargaining unit or hire a temporary employee at its discretion, where a bargaining unit employee is selected as a temporary replacement the employee will have the right to return to his/her regular position or its equivalent on the expiration of the temporary assignment. The first resultant temporary vacancy shall also be posted in accordance with this clause if it meets the criteria. It is understood that none of the clauses of Article 17.1 apply to temporary vacancies. The work in question involved cleaning washrooms in the Kente Building, an academic building on the College's Main Campus. Prior to August, 3 2001, the cleaning work was performed on the day shift by Pauline Foster, who was classified as a full-time Caretaker at Payband 2. The evidence indicates that Ms. Foster selected this assignment on an annual basis and that, prior to this assignment, Ms. Foster cleaned hallways and other surfaces on the day shift, while the washroom duties were performed on the day shift by John McPeak. Prior to Mr. McPeak, these duties were performed in succession by two female Caretakers, Dorothy Watt and Linda Wood. Some time in early to mid-2001, Ms. Foster elected to accept an early retirement incentive package. Ms. Foster's retirement took effect on July 31, 2001. Following her retirement, the washrooms were cleaned by the Supervisor of Facilities Services, Otto Noppert, and other available staff on the night shift. Although the occupancy of the building was somewhat reduced over the summer months, there were a number of air cadets using the building during the day and the College received complaints regarding the condition and servicing of the washrooms. In order to address these complaints, the College considered a number of options, including having the work performed by the existing staff on the night shift; hiring a part-time Caretaker to perform the work on the night shift; or hiring a temporary full-time Caretaker on the night shift. According to the Director of Facilities, Kirk Fleming, although authorization had been given to hire a temporary full-time Caretaker on the night shift, authorization had not been given to hire a permanent full-time employee to fill the position 4 vacated by Ms. Foster. Mr. Fleming also testified that at that time no consideration was given to contracting out the work in question. Ultimately, the decision was made to hire a temporary full-time Caretaker on the night shift, which gave the College a period of time (some four months) in which to consider how the work might be performed on a more permanent basis. Mr. Fleming testified that the College's preference in hiring a temporary employee was to have the employee assigned to the night shift so that he would come under the direct supervision of Mr. Noppert. As well, there were fewer interruptions on the night shift, whereas there were frequent interruptions on the day shift, when the washrooms were in use. As a result, some time prior to August 10th, the College posted the position of Caretaker A (Temporary), primarily on the night shift, from 10:30 p.m. to 7:00 a.m. The successful applicant for the posting was Chris Rigby, who was hired as a full-time bargaining unit employee for a specified period from August 27 to December 31, 2001. Although Mr. Rigby was hired to work, for the most part, on the night shift, by the end of the first week, it became apparent that the washrooms could not be adequately cleaned and serviced by an employee assigned to the night shift. In anticipation that problems would worsen when staff and students returned to the College following the end of the Labour Day weekend, a decision was made in late August to have this work performed on an early afternoon shift. Accordingly, as of September 4th, Mr. Rigby, who was the most junior employee 5 on the night shift, was assigned the work from 1:30 p.m. to 10:30 p.m. Notification of the shift change was provided to the Local Union President, Gord Wright, by memorandum dated September 12th. Notwithstanding the shift change, complaints persisted regarding the condition of the washrooms. Accordingly, in or around November 8th, Messrs. Noppert and Fleming decided to have the washroom duties performed on an ongoing basis on the day shift (from 9:00 a.m. and 6:00 p.m.). Pursuant to this decision, which was communicated to the Local Union President on November 8th, Mr. Noppert canvassed the staff on the night shift to see if any employee was interested in performing these duties on the day shift. According to Mr. Fleming, there was no interest in changing shifts, except for two employees who were willing to move to the day shift provided their night shift premium was maintained. As this arrangement would have been contrary to the collective agreement, Mr. Rigby, being the most junior on the night shift, was reassigned to the day shift. Subsequently, on December 7th, Mr. Rigby was advised that, due to financial constraints, approval had not been given to fill the position vacated by Ms. Foster for either the current or subsequent budget year and, therefore, that his term contract would end as scheduled effective December 31, 2001. Accordingly, Mr. Rigby was released on December 7th, although he was paid to December 31st 6 Although subsequent to December 7th, the work in question was performed by the existing staff on the night shift, approval had still not been given to hire a permanent employee to fill the position vacated by Ms. Foster. Accordingly, some time in December or January, the College considered its options for having the work performed by the existing complement. Among the options considered at that time were the following: (1) assigning one employee (most probably, the employee occupying the "float" position) on the night shift (from 10:30 p.m. to 7:00 a.m.) to clean the washrooms, which would have increased the workload of other employees on shift and deprived the shift of a "floater" to cover absences; (2) transferring an employee from the day shift to the night shift (which was an option the College retained even though no employee had expressed an interest in transferring to the day shift), which would also have deprived the night shift of the float position; (3) sharing the washroom duties among all of the employees on the night shift, which would have increased the workload of all of the employees on shift; or 7 (4) assigning one of the existing staff on the day shift to cleaning and servicing the washrooms, which would also have increased the workload of these staff, as well as the cost of having the work performed, as the day shift employees were at a higher payband than the employees on the night shift. As well, other duties generally performed on the day shift would have been neglected. Apart from having the work done by the existing staff, consideration was given to outsourcing, or contracting out, the work in question. Although Mr. Fleming acknowledged that cleaning the washrooms was essential work which had to be done; that the College preferred that the work be done on the day shift; and that no approval had been given to increasing the existing complement, Mr. Fleming disputed that the only option available to the College at that time was to contract out the work. In fact, as previously indicated, while the College was considering its options in December and January, the work was performed by employees on the night shift. Nevertheless, Mr. Fleming confirmed that in or around January 20 or January 21, 2002, the decision was made to contract out the work. According to Mr. Fleming, the decision was made for financial reasons and in order to maintain service at a reliable and productive level. Pursuant to this decision, on January 23rd, Mr. Fleming sent an e-mail requesting that the contractor, Unicco 8 Facilities Services, arrange for "staffing (female) to cover the cleaning and servicing of all washrooms at the Kente building 0900 to 1800 hours Monday to Friday" commencing Monday, January 28th, if possible. The e-mail stated that the hourly rate would be in accordance with the existing contract, as Unicco performed cleaning services in other areas. Mr. Fleming testified that he specified female staffing in order to minimize disruption (presumably, a reference to disruption in the performance of cleaning duties, which would occur if a male staff member provided service, as women's washrooms generally required more servicing than the men's washrooms). Although Mr. Fleming acknowledged that in the three- to four-year period prior to the contracting out, no steps were taken to prevent male employees from assuming the washroom assignment (as preference for assignments was given on the basis of seniority, among other factors), he took note of the fact that, for the most part, women had performed this work. Submissions of the Parties The Union submitted, in essence, that the work of cleaning the washrooms in the Kente Building was an essential service which had to be performed; that, due to budgetary constraints, the College was unable to hire a permanent employee to fill the position vacated by Ms. Foster; and that, having canvassed a number of alternatives, as of December 7th, the only viable option was to contract out the work. In fact, the Union submitted that, Mr. Fleming's 9 evidence notwithstanding, the only conclusion to be reached is that the contracting out decision was made prior to December 7th (and might well have been made as early as August), although it was not announced until December. The important point, according to the Union, is that the College effectively made the decision to contract out the work in question while Mr. Rigby was still an employee. In the alternative, if the decision was made in January, it is reasonable to conclude that the College deferred making the decision until Mr. Rigby was no longer an employee in order to avoid its obligations under Article 15.8. In the result, the Union submitted that (1) the decision to contract out the work in question resulted in the layoff or involuntary displacement of a bargaining unit employee, namely, Mr. Rigby, which triggered the requirement to notify the Local Union and OPSEU Head Office in accordance with the provisions of Article 15.8 of the collective agreement; and (2) the College violated the collective agreement in failing to provide such notice. The College submitted, in effect, that subsequent to Ms. Foster's retirement, an effort was made to reduce costs by having the washroom duties done by the existing staff on the night shift and that, when complaints about the condition of the washrooms reached a level that the College could not tolerate, it examined various alternatives for having the work performed. The College further submitted it had no obligation under the collective agreement to maintain the regular complement following Ms. Foster's retirement. Accordingly, the decision was made in August, 2001 to hire a temporary full-time employee, 10 namely, Mr. Rigby, on a term contract ending December 31, 2001, which gave the College the opportunity to consider how the work might be performed on a more permanent basis. Following the termination of Mr. Rigby's contract, the College again considered its options for having the work performed, and in or around January 20 or January 21, 2002, made the decision to contract out the work in question. The College further submitted that there is no basis upon which to conclude that the decision to contract out was made prior to January; that Mr. Fleming's evidence in this regard was entirely credible; but that, in any event, the decision to contract out had no effect on the termination of Mr. Rigby's contract, which came to an end, in accordance with the terms which had been agreed to by Mr. Rigby, on December 31, 2001. Accordingly, it was submitted that there was no layoff or involuntarily displacement of any bargaining unit employee as a result of the decision to contract out the cleaning work in the Kente Building and, therefore, no obligation to give notice under Article 15.8 of the collective agreement. The Union submitted, by way of reply, that, given the essential nature of the work in question, it seems improbable that the College would have waited until late January to address the manner in which this work would be performed. In the alternative, the Union submitted that even if the College did wait until January before deciding to contract out the work, it should not be allowed to avoid the requirement for notice under Article 15.8. The Union further submitted that Mr. Rigby was not a temporary employee under Appendix D, but 11 rather a temporary employee on a term contract who was released during his probationary period. Furthermore, his termination was not voluntary, as the College suggested. Rather, he was involuntarily displaced within the meaning of Article 15.8. Decision The issue is whether the College violated Article 15.8 of the collective agreement in failing to provide written notification to the Local Union and OPSEU Head Office of the contracting out of cleaning work in the Kente Building on the College's Main Campus. Article 15.8 provides that where the College decides to contract out work or services being performed by employees at the commencement date of the collective agreement, which would cause the layoff or involuntary displacement of any employees covered by the agreement, the College will notify the Local Union and OPSEU Head Office four weeks in advance of written notice being provided to the employees affected, which triggers the involvement of the Employment Stability Committee under Article 15.3. In this case, there was no dispute that at the commencement date of the collective agreement (January 18, 2001), the work of cleaning the washrooms in the Kente Building was being performed by a bargaining unit employee (Ms. Foster), or that the work was ultimately contracted out. There was a dispute, however, as to whether the 12 decision to contract out the work caused the layoff or involuntary displacement of an employee covered by the collective agreement. In this regard, the evidence indicates that although Ms. Foster retired effective July 31, 2001, her position was not maintained. After an initial attempt to have the work performed by existing staff on the night shift (including Mr. Noppert), the decision was made to post a vacancy for a temporary Caretaker A position for a specified period ending December 31, 2001. Although the successful applicant, Mr. Rigby, was assigned to the night shift, in short order it became apparent that this work could not adequately be performed on the night shift and Mr. Rigby was reassigned from the night shift to an early afternoon shift effective September 4th. However, the impracticality of that arrangement soon became apparent as well, and Mr. Rigby was transferred for some period from the afternoon shift to the day shift. Subsequently, on December 7th, Mr. Rigby was advised that due to financial constraints, approval had not been given to fill the position vacated by Ms. Foster and, therefore, that his term contract would end as scheduled on December 31st. Thereafter, Mr. Fleming testified, the College considered its options for having the essential work of cleaning the washrooms in the Kente Building performed. According to Mr. Fleming, the College revisited having the work done on the night shift (either by dedicating one employee to the performance of these duties or sharing the work among several employees). As well, consideration 13 was given to having the work done on the day shift (either by transferring an employee from the night shift, which is an option the College retained even though no employee expressed an interest in being transferred, or by assigning the work to an employee already working on the day shift) and to contracting out the work. Although Mr. Fleming vehemently denied that contracting out was the only viable option, it was the option ultimately chosen by the College. However, the uncontradicted evidence was that the decision to contract out the work was not made until January 20 or January 21, 2002. Nevertheless, the Union maintained that, as there were no viable options for having the work done (as the College had rejected having the work done by the existing staff on either the day shift or the night shift), the decision to contract out must have been made by December 7th at the latest. Although there is some appeal to the Union's argument, particularly as Mr. Fleming conceded in cross-examination that the College had decided in late August that it was not feasible to have the work performed on the night shift and as there were substantial costs associated with having the work done on the day shift, the argument loses force when it is recognized that the cleaning work was performed by the existing staff on the night shift between December 7, 2001, when Mr. Rigby was released, and January 20 or January 21, 2002, when the decision was made to contract out the work. In any event, it is not necessary to determine when the decision was made to contract out the work or even whether the decision was made while 14 Mr. Rigby was still an employee, as the decision to contract out had no effect on the termination of Mr. Rigby's contract, which came to an end by the effluxion of time on December 31,~ 2001. Accordingly, we find that there was no layoff or involuntarily displacement of Mr. Rigby (or any other bargaining unit employee) as a result of the decision to contract out the work of cleaning the washrooms in the Kente Building and, therefore, no obligation to provide written notification in accordance with the requirements of Article 15.8 of the collective agreement. As a result, there was no violation of the collective agreement and so the grievance must be dismissed. DATED AT TORONTO, this 22nd day of April, 2003. Chair "Peter M. Hetz' College Nominee See Dissent Attached Union Nominee Dissent: Ronald J Kelly, Union Nominee, April 15, 2003 For the reasons below, I cannot concur with the decision of the majority. The award concludes: In any event, it is not necessary to determine when the decision was made to contract out the work or even whether the decision was made while Mr. Rigby was still an employee, as the decision to contract out had no effect on the termination of Mr. Rigby's contract, which came to an end by the effluxion of time on December 31, 2002. Accordingly, we find that there was no layoff or involuntary displacement of Mr. Rigby (or any other bargaining unit employee) as a result of the decision to contract out the work of cleaning the washrooms in the Kente Building and, therefore, no obligation to provide written notification in accordance with the requirements of Article 15. 8 of the Collective Agreement. It is important to determine when the decision was made to contract out that work. That moment in time would set in motion the process of notifying the Union and, in turn under Article 15.3, set in motion the deliberations of the Employment Stability Committee (ESC) -- the committee that both parties agree will assist in the process of minimizing the dislocation of employees. If the decision was made at any time when the position was filled by an employee covered by the Collective Agreement -- and Mr. Rigby certainly was an employee covered by the Collective Agreement -- then the College had an obligation to notifiy the Local Union and OPSEU Head Office. Until December 31,2001, the position was filled by a member of the bargaining unit and any decision to contract out the work would have required notification to the Local Union and OPSEU Head Office that the College had decided to contract out some bargaining unit work. But contracting out wasn't to be discussed before January 21, 2002 when there wasn't a bargaining unit employee in the position - if the arbitration board accepts the evidence of Kirk Fleming, director of facilities services at Loyalist. In his appearance, Mr. Fleming said that contracting out had not been discussed by or with him, and he wasn't aware that it had been discussed by anyone else, before January 21, 2002. He testified that on January 21 he discussed the college's need for Washroom cleaning with a representative of Unicco Facilities Services. Unicco holds the contract to clean the student residences at the College. Dissent of Union Nominee Page 2 The decision to contract out the work of the bargaining unit emploYee could have been discussed by College administrators on any number of occasions over an eight or nine month period between April/May 2001 and January 21, 2002. That the decision wasn't discussed in those eight months and that it was made speedily and apparently with little if any management analysis was the subject of argument by counsels for the College and the Union. The award notes that "the Union maintained that, as there were no viable options for having the work done (as the College had rejected having the work done by the existing staff on either the day shift or the night shift) the decision to contract out must have been made by December 7th at the latest." Then the award adds: "Although there is some appeal to the Union's argument, particularly as Mr. Fleming conceded in cross-examination that the College had decided in late August that it was not feasible to have the work performed on the night shift and as there were substantial costs associated with having the work done on the day shift, the arffument .loses force when it is recognized that the cleanin~ work was.t~erformed by the existin~ staff on the night shift between December 7, 2001, when Mr. Ri~bv was released, and Janttarv 20 .or.January 21, 2002 when the decision was made to contract out the work. "(Eml3hasis added) How can the argument loses force? There were no students in the College from mid- December until early January. Why else would they pay offa contract? If the College needed the work to be done and they were paying Mr. Rigby to do the work, why wouldn't they keep him to do the work? Because the washrooms probably weren't in use during the period of the Holidays. 'In his summation counsel for the Union expressed skepticism that contracting out hadn't been discussed before January 21. Counsel for the College took umbrage that the Credibility of his witness Kirk Fleming was questioned. He asked the board of arbitration to assess credibility using the conditions set down by J. Beck in R. v. Covert. The first of those conditions reads: (1) That the statements of the witness are not in themselves improbable or unreasonable. Clearly the statements of Kirk Fleming are highly improbable and unreasonable. The Board cannot accept Mr. Fleming's statements that contracting out had not been discussed in the many, many months prior to January 21, 2002. Logically, it would be good management to discuss all the options. Dissent of Union Nominee Page 3 Contracting out was an option but Mr. Fleming insisted it wasn't discussed at any time in that six month period when the College attempted to share the work of one employee among many. In those months the College learned that the work could not be shared among the existing employees. In July the College knew the cleaning could not be done satisfactorily by the available day staff. In August the College discovered that the cleaning could not be done satisfactorily by the staffon the midnight shill. By November 9, the College conceded that the cleaning of the washrooms could only be done to everyone's satisfaction ifa person was employed full-time each day from 9:00 a.m. to 6:00 p.m. On December 7, 2001 the College paid offthe employee performing the work and although the College knew that January would bring hugely increased numbers of students into the building, no one discussed contracting out as a way of keeping those washrooms clean. Was that only bad management? I believe that the Board should accept the test of credibility offered by counsel for the College and, therefore, reject the assertion that the College had not discussed contracting out before January 21, 2002. The College's implausible change of mind had to be explained by the College. The issue of the credibility of their witness, if nothing else, placed an onus on the College to prove that their conduct was in keeping with the Collective Agreement. Mr. Hamilton took umbrage but he didn't call any witnesses to support Mr. Fleming's evidence that the College had not discussed contracting out the performance of an essential service. It is more reasonable to reject the College's claim concerning the date on which the decision was made to contract out the work than it is to dismiss the Union's argument because the cleaning work may have been performed by existing staffwhen the washrooms were not in use. Therefore, the College contravened the Collective Agreement. CHAIR'S ADDENDUM Notwithstanding Mr. Kelly's assertion that if the decision to contract out was made at any time when the position was filled by an employee covered by the collective agreement, the College had an obligation to notify the Local Union and OPSEU Head Office, Article 15.8 requires notification only where the contracting out would cause the layoff or involuntary displacement of any employees covered by the collective agreement. In this case, there was no causal connection between the decision to contract out the work in question and the termination of Mr. Rigby's contract, which came to an end with the effiuxion of time on December 31, 2001. DATED AT TORONTO, this 22nd day of April, 2003. Chair