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HomeMy WebLinkAboutUnion 03-05-16IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 612 AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE #00D365 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR DAVID CAMELETTI, COLLEGE NOMINEE EDWARD SEYMOUR, UNION NOMINEE APPEARANCES FOR THE COLLEGE: DAVID BRADY, COUNSEL FOR THE UNION: GAVIN LEEB, COUNSEL SUPPLEMENTARY AWARD By decision dated February 19, 2002, the Board found that the purported exclusion of "persons employed temporarily during the College vacation periods" (commonly referred to as "students") from the scope of the bargaining unit was contrary to statute and could not stand. The Board then afforded the parties an opportunity to negotiate terms and conditions of employment applicable to students and remained seised in the event they were unable to do so. Under the Colleges Collective Bargaining Act (the "Act"), negotiations would have taken place between the Council of Regents for Colleges of Applied Arts and Technology (the "Council") and OPSEU. However, negotiations did not take place and, accordingly, the Board was asked to determine whether students were covered by the collective agreement. In determining this matter, the Board had reference to the following provisions of the collective agreement and the Act: Collective Agreement 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: 2 - persons regularly employed for twenty-four (24) hours per week or less and persons employed temporarily during the College vacation periods; 1.3 Binding on Parties This Agreement is binding on the parties hereto and the employees as defined in Article 1.1. Colleges Collective Bargaining Act PART I GENERAL 1. In this Act and in the Schedules, 'agreement' means a written collective agreement between the Council on behalf of the employers and an employee organization covering terms and conditions of employment negotiable under this Act;... 'bargaining unit' means the academic staff bargaining unit of employees or the support staff bargaining unit of employees set out in Schedules 1 and 2;... 'employee' means a person employed by a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2;... 'employee organization' means an organization of employees formed for the purpose of regulating relations between the employer and employees under this Act, but does not include such an organization of employees that discriminates against any employee because of age, sex, race, national origin, colour or religion;... 'employer' means a board of governors of a college of applied arts and technology; ... 3 2.-(1) This Act applies to all collective negotiations concerning terms and conditions of employment of employees. (3) The Council shall have the exclusive responsibility for all negotiations on behalf of employers conducted under this Act. PART II NEGOTIATIONS 3. Negotiations shall be carried out in respect of any term or condition of employment put forward by either party, except for superannuation. PART VI AGREEMENTS 46.-(5) The decision of an arbitrator or of an arbitration board is final and binding upon the employer, employee organization and upon the employees covered by the agreement who are affected by the decision, and such employer, employee organization and employees shall do or refrain from doing anything required of them by the decision. 51. An agreement is binding upon the Council, the employers and the employee organization that is a party to it and upon the employees in that bargaining unit covered by the agreement. Submissions The Union took the position that, by operation of Article 1.3 (which is consistent with the statutory requirement set out in Section 51 of the Act), the collective agreement is binding on, among others, the employees as defined in Article 1.1, which properly includes students, and, further, that the Board is 4 precluded from making a decision which is inconsistent with the terms of the collective agreement. Accordingly, the Union submitted that the collective agreement applies in its entirety to students. Further, as it has been found that students come within the bargaining unit, certain provisions of the collective agreement which, by statutory prescription, apply to all employees (such as dues deduction and rights of grievance) have application to students and, as it has been agreed between the parties that if the collective agreement applies, it applies in its entirety, it must be found that the agreement applies in its entirety to students. The Union further submitted that a finding that the collective agreement does not apply to students would "empty the grievance procedure of any meaning", as students would have access to the grievance procedure but no enforceable rights. And if students have no enforceable rights, the Union would similarly be denied the right to pursue grievances and collect dues on their behalf. The College submitted that the collective agreement is the written expression of the parties' intention; that, in this case, the parties did not intend that students be covered by the collective agreement; and that, although it has been found that the parties had no right to exclude students from membership in the bargaining unit, they could agree, as they did, that students would not be covered by the collective agreement. Accordingly, although the form of the parties' agreement (namely, excluding students from the scope of the bargaining unit) might have been illegal, the content of their agreement (excluding students 5 from coverage under the collective agreement) was lawful and consistent with the provisions of Subsection 46(5) and Section 51 of the Act, which make reference to employees "covered by the agreement", suggesting that there may be employees in the bargaining unit who are not covered by the collective agreement. The College further submitted that as the parties never intended that the collective agreement would apply to students, a finding that the agreement applies to students would be tantamount to amending the agreement, which the Board is specifically proscribed from doing. In the result, the College submitted that the Board ought to find that there is a distinction between membership in the bargaining unit and coverage under the agreement, and that the terms and conditions of the agreement do not apply to students. Alternatively, the College submitted that the Board should rectify the agreement to conform to the parties' intention to exclude students from coverage under the collective agreement. In the further alternative, the College submitted that the Union is estopped from claiming that students are covered under the collective agreement. In this regard, the College relied on the Board's earlier finding that, by negotiating a provision, which would exclude students from the scope of the bargaining unit in successive collective agreements over a 30-year period, the Union made a representation to the College, which was intended to affect legal relations and to be acted upon by the College. It was further submitted that the College relied on that representation to its detriment by failing to negotiate an 6 amendment to the collective agreement. Accordingly, it was submitted that the Union is estopped from claiming that students are covered by the collective agreement and that the estoppel continues for the duration of the agreement. The Union submitted in reply that this is not a case in which the written agreement does not properly reflect the oral agreement of the parties and, therefore, the conditions have not been met for the application of the doctrine of rectification. The Union further submitted that it cannot be correct from a legal or labour relations perspective that employees who come within the scope of the bargaining unit are not covered by the terms of the collective agreement. Finally, with respect to the argument of estoppel, it was submitted that the College cannot claim detrimental reliance based on a lost bargaining opportunity as the Union does not bargain with the College, but with the Council. The College submitted in surreply that the Council is merely an agent for its principals, which are the Colleges (including Sault College), and that any representation to the agent can be relied upon by the principals. Decision Article 1.3 provides that the collective agreement is binding on the parties and the employees as defined in Article 1.1 and, as the previous decision concluded that students were improperly excluded from the scope of the bargaining unit, by operation of Article 1.3, the collective agreement is binding on 7 students, among other employees in the bargaining unit. Moreover, Article 1.3 is consistent with the statutory requirement set out in Section 51 of the Act, which provides that a collective agreement is binding upon the Council, the employers (being the Colleges (S. 1)), the employee organization (OPSEU) and the employees in the bargaining unit covered by the agreement. Although the College argued that the reference to employees "covered by the agreement" in Subsection 46(5) and Section 51 of the Act suggests that there may be employees in the bargaining unit not covered by the agreement, we cannot agree. As noted, Section 51 provides that the collective agreement is binding on, among others, employees in the bargaining unit covered by the agreement. Given that the Act recognizes two bargaining units (the academic staff bargaining unit and the support staff bargaining unit (S. 1)), it would appear that Section 51 makes reference to employees "in the bargaining unit covered by the agreement" in order to restrict the binding effect of a collective agreement to those employees in the bargaining unit to which the agreement applies (academic or support, as the case may be). Similarly, Subsection 46(5), which provides for the final and binding effect of a decision of an arbitrator or arbitration board upon the employer, employee organization and employees "covered by the agreement who are affected by the decision", appears to recognize that an arbitration decision is between a College and OPSEU in respect of particular employee(s) (in the case of individual grievances) covered by the support or 8 academic agreement, and that the impact of the decision is limited to those employees affected by the decision. In any event, whatever meaning is to be attributed to the term "covered by the agreement" in Subsection 46(5) and Section 51 of the Act, there would appear to be no support in either of these provisions for the conclusion that there may be employees in the bargaining unit who are not covered by the collective agreement. To the contrary, unless the parties agree to restrict the terms of the collective agreement which have application to particular groups of employees (students, in this case), Section 51 requires that the agreement be applied to them. In other words, although the parties can agree to fimit the application of the collective agreement in respect of groups of employees (students having been found to be employees), they cannot agree to exclude employees from coverage under the agreement. Were it otherwise, the parties could frustrate the legislative intent that students, among others, be included within the bargaining unit by refusing to negotiate terms and conditions of employment applicable to them. Nevertheless, although it was not within the contemplation of the parties that the collective agreement would apply to students, this is not a proper case for rectification. There is no indication that the written document (being the collective agreement) does not reflect the "real" agreement between the parties. To the contrary, the collective agreement is entirely consistent with the parties' 9 agreement to exclude students from the scope of the bargaining unit (although the Board found in its previous decision that that agreement was void as being contrary to statute). Furthermore, to the extent the College is seeking to have the collective agreement amended to exclude students from coverage (it was suggested that an appendix be added to the agreement to this effect), an amendment of this sort would not conform to the legislative requirement that employees (including students) be covered by the terms of the collective agreement. As well, this is not an appropriate case for the application of the doctrine of estoppel. Even if it were found that, by negotiating an exclusion for students over a long period of time, the Union made a representation that the collective agreement would not apply to these employees, it would thwart the statutory scheme were estoppel to apply. This is not to suggest that, apart from the legislation, the Union could not be estopped from claiming that student employees were covered by the collective agreement. However, given the legislation, such a finding is not available in this case. Accordingly, although the Board held that it does not necessarily follow that, because students are included in the bargaining unit, they are covered by the terms of the collective agreement (had the Board been more circumspect, it would have used the expression "afl terms"), after noting that special arrangements had been made for other groups of employees, most agreement and remains seised for purposes of implementation and in accordance with the terms set out in its previous decision. DATED AT TORONTO, this 16a day of May, 2003. Chair See Dissent Attached College Nominee "Edward Seymour' Union Nominee BETWEEN: AND ~fil~lOIF LOCAL AND IN ~ OP,..~E~ FILE DI$$Etvr OF rile COLLE~ leOMt~fE8 I have revlewecl me Supplementary Award and with respect must dissent. Reference must be macle to certain excerpts from the unanimous Award on Page 2g and 30. This Board of Arbitration stated that fit does not necessarily follow, however, that, because students are included in i;he bargaining unit, they are covered bv the terms of the Collective Agreement. It seems clear ~hat, having excluded students from the scope of the bargaining unit (albeit Improperly) the parties never Intended that the terms of the Agreement woulcl apply to them. In fact, students, who are hired for a specified term can be clis;ingulshed from regular full time employees, who are I~ired on an indeterminate basis." normal course of bargaining to arrive at a mutually agreeable arrangement for terms and conditions pertaining to students. The management rights clause is sufficient to permit the College to set terms and conclitions of employment for any students emptoved until otherwise modified by bargaining. This is the puroose ora management rights clause. Section 3 of the College Coll~e ~a~ei#/#gAc'~requires that negotiations are to be carrlecl out In resl~eCt of any terms or conditions of employment brought forward bV either party. This can be done for any person. TO make the broad declaration provided In the Supplementary Award, that the Collective Agreement ai~l~lles to stuclents, allOWS the Union to coml~letel¥ circumvent ~he bargaining process and to avoid its obligations unc~er section 3 of the COllege ColleagUe ~f'~ai~i~O Ac~. This is an inecluitat~le result. In addition, this result is unfair to Sault College which, since tt is not a Oirec~ I~artyat the negotiating table With the Union, cannot directly bargain on this issue. At the same time the result is also unfair 1~o the Council of Regents in that this bargaining agent is not at the arbitration with the Union. The Chair correctly points out that there is a question of which terms of the ColleCtive Agreement and the manner in which the Collective Agreement ought to be applied. The Chair further correctly points out that TI3e Award proceeds to state ~hat "although students were not con~:emplal:ed as being covere~ under l:nls agreement, the parues nave made separate arrangemen~ for other grouPs of employees, most notably, temporary employees, who are dealt wi'Ct under a separate Appendix 1:o ['ne Collecl:lve Agreement (Appendix The critical poinl~ from the above excerpts from 1:he unanimous Award co focus on is that there has been a tong mutually agreeable pracl:ice of excluding ~udent~ from the Collective Agreement notwithstanding ti'~e finding of this Board about the incorrectness of this under the statute. This in my view must govern any remedy tilat this Board of Arbitration fashions. The Union has now come back to trle Board of Arbi~atlon, anti has asked for a blanl(et declaration that the students are covered by the terms of the Collecl:ive Agreement, thereby purl:lng them in an arguablv strongr position*than Appendix D employees. Having regard to the approximately thirty year practice by which the parties (albeit mistakenly) have exCluded students from the Collective Agreement, In my respeci:ful view, the appropr~iate position for this Board of Arbitration, to ~ake is one which respects that long period of excluding students, and does not cause a complete upsetting of the status quo. The most appropriate r~medy would be for this Board to simply re- affirm the declaration In the unanimous Award and leave the parties in the the scope of the application of such terms to stutJents neeQs determined on a case by case basis. In my respectful view, the aDl~roprlate Cllsposltlon in the Supplementary Award would be to slml31Y affirm the cleclaration that was *macle in tl~e unanimous Awarcl anti, leave for future determination w~ac, if any, Collective Agreement provisions apply to stuclents. Tl~e management rlgl~ts clause gives the College the rigt3t Co cletermine the terms ancl conditions of the students employed. As the Supplementary AWard stands, the result is that all Provisions of the Collective Agreement are presumed to apply to student employees unless (letermlned otl~erwlse. The 13referal31e approach, in my view, wouici be Co cleclare that students l~elong In [~argalnlng unltas nas I~een alreacly clone, aha allow for me c~ecermlnation on a case by case basis in future arbitrations wl~aC Collective Agreement provisions ai~131¥ to student3. Tllis woulcl leave the parties free to negotiate any arrangements as weJl. DATED at tile City of Guelpil this 14~ clay~f~Ma¥, 2005. DAVID CAMELETTI - College Nominee