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HomeMy WebLinkAboutLuck 04-07-16 -1- IN THE MATTER OF AN ARBITRATION between ONTARIO PUBLIC SERVICE EMPLOYEES UNION and SAULT COLLEGE OF APPLIED ARTS AND TECHNOLOGY Grievance of M. Luck Preliminary Award of the Board of Arbitration on the sole matter of the scope of the grievance. College Counsel: Tom Matsoutsas Union Counsel: Gavin Leeb Before: Louis M. Tenace (Chair) Ron Davidson (Union Nominee) Dave Camelletti (Employer Nominee) Heard in Toronto, Ontario, June 23, 2004 -2- Preliminary Award During the course of direct examination of a Union witness (Jennifer Rennison, President of Local 612) at a hearing of the grievance of Mr. M.Luck being held in Sault Ste. Marie, Ontario on June 1, 2004, a matter arose as a result of an objection by Counsel for the College concerning the scope of the grievance and the line of questioning being pursued by Counsel for the Union. The nature of the objection was that the Union, by pursuing a certain line of questioning, was expanding the scope of the grievance to include matters that had never been raised at any stage of the grievance procedure and that had not been included on the original grievance form submitted by the grievor. It was agreed by the parties that the Board of Arbitration would convene a hearing in Toronto on June 23, 2004 at which time the parties would present argument on this sole issue and that the Board would render a decision thereon before reconvening in Sault Ste. Marie on August 26 and 27, 2004. The following brief summary will provide background to the circumstances giving rise to the objection. Michael Luck, was first employed as a Forestry Technician on a part-time basis at Sault College in 1990. In 1995, he was employed full time in a term position as a Forestry Technician 11I, Payband 9, ( later reclassified to a Technologist, Natural Resources, Payband 10) and was given a seniority date of 1994. He was notified by letter dated April 10, 2003, signed by the President of the College (Timothy R.Meyer) and the Vice- President, Academic (Jeff Zabudsky) that he would be laid off g_effective at the close of business on Wednesday, July 9, 2003. @ On April 24, 2003, Mr. Luck filed the following grievance: Statement of Grievance: This grievance is beingfiled according to Article 18. 7 of the Support Staff Collective Agreement. The grievor claims that he has been improperly laid off and that he couM have displaced a junior employee. The grievor claims entitlement to one the following positions- Web Application Specialist - Technician C, Computer Serivces (Patti StewarO -3- -Educational Technology Web Technician -Atypical PB 9, Curr. Dev. & Inst. Design (Phil Bringleson) - Learning Resource Computer Technician - Technician B, Computer Services (Randy Riauka) - Caretaker - Caretaker A, Custodial Services (Mike Leveille) Settlement Desired: The College shall consider the grievor=s representations and determine a reassignment according to Article 15. 4.3. The College shall also allow for a period of familiarization according to Article 15. 4. 7. This period of familiarization is to include: - Adequate oral instruction. - Demonstration of the processes associated with the job. - Clear articulation of the standards that the employee is required to meet. The grievor shall be compensated and his record made whole. On or about May 30, 2003, subsequent to the grievor= s receiving his notice of layoff, the College posted a notice of competition for a temporary vacancy (from June 23, 2003 to June 2004) for a Web Application Specialist, Technician C, Payband 9, (Exhibit 23). Mr. Luck applied for this position on June 5, 2003 and attached to it a copy of his resume. He never received any response to or acknowledgement of his application. No subsequent action by way of complaint or grievance was taken by Mr. Luck. Counsel for the College objected to the admission into evidence of this competition poster at the moment of its introduction during the second day of the hearing on January 6, 2004, on the ground that it was issued after the grievor received his layoff notice and after he submitted his grievance and, thus, did not fall within the scope of the instant grievance. The Board determined that it would permit the introduction of Exhibit 23 subject to a later determination as to the weight, if any, to be accorded it. Counsel for the Union submits that Exhibit 23 is indeed relevant and that the College was obligated by virtue of Article 15.1 of the collective agreement to consider the grievor for the position in question even -4- before posting it. Article 15.1 reads as follows: 15.1 General An employee who has completed the probationary period shall not be laid off or subject to the layoff process, for any reason, unless and until the procedures contained in Article 15 have been applied in sequence. Counsel is seeking a direction from this Board to the effect that the College failed to follow the dictates of Article 15.1. In the alternative, Counsel for the Union argued that the Union should be able to inquire into when the College knew or ought reasonably to have known when the position in question would become vacant. In his submission, Counsel argued that the College was bound by the collective agreement to look for other positions for the grievor after he received his notice of layoff and during the ninety-day notice period, even if the process had to be repeated several times over. Counsel submitted that the grievance captures this ninety-day notice period and that the grievance was effectively amended to include this claim. The College is obliged to consider new or changed circumstances in applying the layoff provisions. The same principle would apply to the recall provisions. In any event, there was no surprise to the College. Counsel had raised the issue during the first day of the hearing into this matter. In addition, Counsel submitted that the words of Article 15.1 stipulate that the Employer is bound to apply all the mandatory provisions of the layoff/recall process before laying off an employee. Thus, the recommendations of the Employment Stability Committee as outlined in Article 15.3.3 had to be first considered by the Employer before any bumping process was iniflated. According to Counsel for the Union, it was acknowledged by the College that this was not done because they wanted to initiate the layoff process as quickly as possible. In Counsel=s submission, the Union was only seeking to have the evidence in question heard and considered as it was both probative and relevant. It was not asking the Board to make a finding that the College violated the collective agreement. In support of his submission, Counsel for the Union referred the Board to the following cases: -5- TenacluiD Ltd. and Teamsters Canada, Local 419, 112 L.A.C. (4th) 60; Blouin Drywall Contractors Ltd, and United Brotherhood of Carpenters and Joiners of America, Local 2486, 57 D.L.R. (3d) 1999; Loyalist College and Ontario Public Service EmDlovees Union, Helen Finley (Chair), September 27, 1999; Canadian Hanson Ltd. and United Steelworkers, 8 L.A.C. (2d) 438. Counsel for the College submitted that from the outset, the case as advanced by the Union has always concerned itself with whether the grievor could have displaced one of the employees in one of the positions he identified on his grievance form. There is no mention on the grievance form of Articles 15.1 or of 15.3.3; there is no mention anywhere that the College did not follow the procedure set out in the collective agreement; at no time were these issues raised during the grievance procedure. The first mention of Article 15.3.3 or of the College=s alleged failure to follow the collective agreement procedures governing lay off was at the arbitration hearing. To do so at that stage is too late and improper and such an allegation should have formed the basis of one or more separate grievances. New issues are now being raised which are separate and distinct from Article 15.4.3 and which seek to question the College= s motives and processes. This constitutes an improper expansion of the original grievance. All of the grievor:-s testimony in these hearings related to whether he possessed the necessary skills and qualifications to perform the duties of the positions he listed on the grievance form. Permitting the Union to introduce new factors at this stage that are not specifically related to whether or not he had the requisite skills and experience for the positions listed on the grievance form is neither probative nor relevant. In Counsel= s view, the Union position goes towards the College= s motivation and does not merely provide context or background. Thus, the evidence relating to Articles 15.1 and 15.3.3 cannot be led as this would constitute an improper expansion of the grievance and is inadmissible. Furthermore, the College does not have an ongoing obligation to reassess and reconsider an employee who has been laid off for positions that might arise after the layoff. This would create an administrative nightmare. It would also render the grievance procedure meaningless as an employee would be in a position to grieve endlessly. In addition, by suggesting that the provisions of Article 15.3.3 of the collective agreement had to be applied before applying Article 15.4.3, Counsel for the -6- Union is making a legal argument which, again, is far removed from providing context or background. Further, Counsel for the College submitted that the Union should not now be permitted to raise the issue concerning the position that was advertised on May 30, 2003 for Web Application Specialist (Exhibit 23) since the grievor had the opportunity to grieve that matter at the time in question but chose not to do so. Counsel referred the Board to the following cases in support of his submission: Algonquin College and Ontario Public Service EmDlovees Union, Michael Bendel (Chair), June 18, 1993; Humber College and Ontario Public Service Employees Union, Stanley Schiff (Chair), January 31, 1995; Cambrian College and Ontario Public Service EmDlovees Union, O.B.Shime (Chair), January 11, 1994; Algonquin College and Ontario Public Service EmDlovees Union, Michel G.Picher, March 2, 1994; Fanshawe College and Ontario Public Service Employees Union, Prof. C.Gordon Simmons (Chair), August 12, 1997; Ontario Court of Appeal, [1998] O.J. No. 3646, Court File No. M22795, appeal dismissed, September 9, 1998; Fanshawe College and Ontario Public Service Employees Union, Kevin M. Burkett (Chair), June 25, 1998; Mohawk College and Ontario Public Service EmDlovees Union, J.G. Thorne (Chair), Campbell, March 4, 2003; Sault College and Ontario Public Service EmDlovees Union, Howard D.Brown (Chair), B.Young, March 30, 2004. In reply, Counsel for the Union submitted that the Union did make known to the College that it had to consider the requirements of Article 15.3.3 through a memorandum dated March 28, 2003, addressed to Mr. Meyer, College President (Exhibit 27) wherein it offered recommendations, pursuant to Article 15.3.3, for dealing with the impending layoff of employees. Notwithstanding, Counsel allowed that the instant grievance was not a grievance about Article 15.3.3; however, the College was bound to apply 15.3.3 and 15.4.3 before giving its notice of layoff. Counsel submitted further that the College=s obligation in a layoff/bumping situation is not fixed at one point in time. -7- If vacancies arise during the layoff period, the College is bound to consider these altered circumstances vis- a-vis its affected employees. Decision: The issue of the form and alteration of a grievance after it has been submitted is dealt with in Canadian Labour Arbitration, 3rd Edition, Brown and Beatty, Chapter 2.3122 at page 2-93 as follows: .... in keeping with the comment; of the Ontario Court of Appeal to the effect that z2cases shouM not be won or lost on the technicality of form ~, today most arbitrators will seek out the merit; ora grievance and refuse to permit undue technicality to render a dispute inarbitrable ....... Of course, once the grievance has been submitted it is not open to aparty to alter the substance of the grievance by raising a new claim or by substituting a different grievance for the one which has been the subject of the grievance procedure. The specific issue of improper expansion of a grievance has been dealt with by a number of arbitrators. ! find particularly helpful that of Arbitrator Burkett in Fanshawe College (2002) 113 L.A.C. (4th) 328, in which he considered whether a grievance had been expanded to include matters not raised in the original referral. He stated at page 334: The acm test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised. .... it is the statement of grievance read in conjunction with the remedy sought that defines the essential nature of the grievance and the issues that have been raised by the grievance, thereby allowing an arbitrator to decide ifa grievance has been improperly expanded. Arbitrator Burkett, in the same award, at page 333, referring to an earlier decision he authored in Ontario Hydro and Power Workers= Union C.U.P.E., Loc. 1000 (1996) 53 L.A.C. (4th) 163, wrote as follows: -8- ..... it is not open to a party to unilaterally expand a grievance to encompass a matter not grieved. Fairness, as well as the efficient administration of the grievance and arbitration process, dictates that this be so. The aggrieved party is entitled to rely on the grievance as filed, albeit read in its' broadest terms, and to govern itself accordingly with respect to settlement discussion, referral to arbitration and preparation for arbitration. Mr. Luck grieved his layoff and filed his grievance pursuant to Article 18.7 of the Support Staff Collective Agreement. For purposes of this preliminary award, the pertinent provisions of that Article are reproduced below: 18.7 Grievance re: Dismissal, Suspension or Layoff 18.7.1 General Articles 18.7.2 and 18.7.3 apply to an employee covered by this Agreement who has completed his/her probationary period, it being understood that the dismissal, suspension or release of an employee during the probationary period shall not be the subject of a grievance. 18.7.2 Grievance An employee who claims he/she has been dismissed or suspended without just cause or improperly laid off or reassigned shall, within fifteen (15) days of the date he/she is advised in writing of his/her dismissal, suspension, layoff or reassignment present his/her grievance in writing to the President, commencing at Step No. 30 and the President, or his/her designee shall convene a meeting and give the grievor and the Union Steward his/her decision in accordance with the provisions of Step No. 30 of Article 18.6.1.3. A Union Staff Representative may be present at such meeting at the request of either the College or the Local Union. 18.7.2.1 Layoff Grievance -9- An employee claiming improper application of Article 15.4.3, shall state in the grievance the position(s) and name of incumbent, if any, to which the employee claims entitlement. The College will provide the PDFs of the positions, named in the grievance, to the employee within three (3) days after the filing of the Step 3 grievance. If the grievance is processed through Step 3, the written referral to arbitration shall specify, from the position(s) which shall thereafter be the subject matter of the grievance and the arbitration. As can be seen from the Grievance Form reproduced above, Mr. Luck complied with the provisions of Article 18.7.2.1 by setting out four positions to which he claimed entitlement. The College replied to his grievance on June 23, 2003 stating that he did not possess the requisite qualifications to perform the duties of any of the first three positions he had cited in his grievance. The College agreed with his claim to the Caretaker A position and allowed his grievance to that extent. Mr. Luck did not agree to accept this position and his grievance was referred to arbitration. It is worth noting that the first position claimed by the grievor, that of Web Application Specialist, Technician C, is the same position advertised in the Competition Poster (Exhibit 23) referred to earlier in this award. There was some evidence that the duties may have been altered somewhat for the Competition Poster but nothing tums on this point. It is also significant that in none of the documentation or viva voce testimony presented by either party relating to the grievance process is there any tangible evidence that any discussions or representations took place between the parties dealing with anything other than Mr. Luck= s qualifications for the position(s) he outlined on his grievance form. There was no evidence of discussions during the grievance process about whether or not the College had followed the requirements of the collective agreement in applying its provisions in sequential order as stipulated in Article 15.1 or of whether the College considered the recommendations of the Employment Stability Committee pursuant to Article 15.3.3. Counsel for the Union urges the Board to find that Mr. Luck should have been considered for the position of Web Application Specialist advertised on May 30, 2003 (Exhibit 23) before it was posted for -10- competition. In the alternative, he asks to be permitted to inquire into when the College knew or ought reasonably to have known when that position would become vacant. He also seeks a declaration to the effect that the College is obliged to consider new and changed circumstances during the ninety-day notice of layoff period and to apply these to employees who have received a notice of layoff With respect, we are unable to do so. As stated earlier in this award, we subscribe to the principles enunciated by Arbitrator Burkett in Fanshawe College, supra, and in Ontario Hydro Power Workers= Union, C.U.P.E. Loc. 1000, supra. The remedial action sought by Counsel for the Union raises different issues which do not form part of the original grievance and which, in our opinion, would constitute an improper expansion of the grievance. While we do not question that such matters could, indeed, be arguable in the proper circumstances, there is no basis to do so in terms of the instant grievance as it would entail the calling of evidence and the introduction of legal submissions that exceed its current scope. It was open for the grievor or the Union to grieve these matters separately or even to have incorporated them into the original grievance. This was not done and, in our opinion, the grievance can=t be added to at this stage. Neither can it reasonably be concluded that such matters were encompassed in the wording of the original grievance but, perhaps, were not referred to specifically because of inadvertence or legal inexperience with the process. The fact that Counsel for the Union mentioned these other issues in his opening remarks is not sufficient reason to expand the grievance and make them the subject of this arbitration. We have considered the cases to which we were referred by Counsel for the Union and while we accept the general proposition that a grievance should be g_liberally construed@ and that an arbitrator should deal with the g_real complaint@, we do not believe that doing so should permit an arbitrator to read into a grievance something that is not there and which could constitute a new or different grievance. In our view, that is what this Board would be doing if we agreed with the submission of Counsel for the Union. For all of the foregoing reasons, the College=s preliminary objection is allowed. This award, of course, concerns itself solely with the College= s preliminary objection and does not reflect in any way upon the -ll- case on its merits, which is not yet complete in terms of evidence and argument. The hearings will resume in Sault Ste. Marie on August 26 and 27, 2004; at that time the Union is entitled to adduce evidence concerning the College= s assessment of the grievor= s qualifications for the positions he identified on the grievance form (Exhibit 1) and other evidence related thereto, within the parameters of the Board= s decision above. Dated at Ottawa, Ontario this 16th day of July, 2004 Louis M. Tenace (Chair) concur/dissent Concurred D.Cameletti (College Nominee) concur/! dissent Concurred R.Davidson (Union Nominee)