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HomeMy WebLinkAboutUnion 03-11-25IN' THE MATT~~d ARBITRATION BETWEEN: SAULT COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 612 AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE NO. 161250 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR DAVID CAMELETTI, COLLEGE NOMINEE MIKE SULLIVAN, UNION NOMINEE APPEARANCES: FOR THE COLLEGE: AMANDA J. HUNTER, COUNSEL FOR THE UNION: GAVIN J. LEEB, COUNSEL A hearing in this matter was held in Sault Ste. Marie on March 4, 2003. Written submissions were received on March 25, May 15 and June 3, 2003. INTERIM AWARD The grievance in this case, which was brought as a Union grievance, alleges that the College violated Article 2.3 of the collective agreement and the Ontario Human Rights Code in requiring that applicants for the position of Team Leader/Employment Consultant in the Job Connect program have a valid driver's licence. The Job Connect program, as described in a previous award between these parties, is designed "to provide individuals with the employment preparation skills and knowledge they need to find and keep real jobs": see Re Sault College of Applied Arts and Technology and Ontario Public Service Employees Union, Local 612; Group Classification Grievance (01C020), 2001 (Brandt (unreported)). At the outset of the hearing, the College raised a preliminary objection to the arbitrability of the grievance on the grounds that it was not properly brought as a Union grievance. In support of its position, the College relied on Article 18.3.3 of the collective agreement, which is to the following effect: 18.3.3 Union Grievance The Union shall have the right to file a grievance based on a difference arising directly out of the Agreement concerning the interpretation, application, administration or alleged contravention of this Agreement. However, such grievance shall not include any matter upon which an employee is personally entitled to grieve and the regular grievance procedure for a grievance peculiar to an individual employee shall not be bypassed eXCel~t where the Unien establishes that the employee has not 2 grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of persons in the bargaining unit. A Union grievance shall be presented in writing, signed by the Local Union President or his/her designee to the Director of Personnel or as designated by the College concerned, within fourteen (14) days after the circumstances giving rise to the complaint have occurred, or have come or ought reasonably to have come to the attention of the Union. The grievance shall then be processed in accordance with Step No. 3 of the grievance procedure. For purposes of the preliminary objection, the College advised that the Team Leader has responsibility for Employment Consultants in three locations: Sault Ste. Marie, Blind River and EIliott Lake. Accordingly, there is a requirement for the incumbent of the Team Leader position to travel within Sault Ste. Marie and to Blind River, Elliott Lake, Echo Bay and Goulais River. According to the College, as the preferable and most efficient means of transportation to these locations is by car, possession of a valid driver's licence is an essential requirement of the Team Leader position. The College further advised that all of the applicants for the position, including the successful applicant, Jane Breckenridge, were in possession of such a licence. For its part, the Union advised that at least one bargaining unit member had expressed concern about the requirement for a driver's licence. However, this member was not an applicant for the position. In fact, there was no indication that anyone who had applied for, or was even interested in, the position did not have a licence. Certainly, no individual employee filed a grievance in respect of this matter. Moreover, although the Union did not dispute 3 that there was a requirement for travel in the Team Leader position, the Union maintained that the requirement Was far less extensive than the College claimed. Accordingly, the Union submitted that a driver's licence was not a valid requirement for the Team Leader position but that, in any event, the imposition of such a requirement constitutes "indirect" discrimination in relation to those employees who, due to an alcohol dependency or other disability, cannot hold a licence. The issue at this juncture is whether the grievance in this case was properly brought as a Union grievance. A resolution of this issue depends upon the proper interpretation of Article 18.3.3 of the collective agreement. Apart from Article 18.3.3, the parties made reference to Article 2.3 of the agreement: 2.3 Ontario Human Rights The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the College because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. Accommodation, if it is requested by the employee and it is determined to be required, is the duty of the College, the Union and the employee. As well, reference was made to Subsection 46(1) of the Colleges Collective Bargaining Act (the "Act"), which is to the following effect: 4 Every agreement shall provide for the final and binding settlement by arbitration of all differences between an employer and the employee organization arising from the interpretation, application, administration or alleged contravention of the agreement including any question as to whether a matter is arbitrable. Article 18.3.3 makes provision for the filing of a Union grievance in respect of a "difference" relating to the interpretation, application, administration or alleged contravention of the collective agreement. However, the Article forecloses a Union grievance on any matter upon which an employee is personally entitled to grieve, except where the Union establishes that (1) the employee has not grieved an unreasonable standard; (2) the standard is patently in violation of the collective agreement; and (3) the standard adversely affects the rights of persons in the bargaining unit. It is generally accepted that all three criteria must be satisfied and that failure to establish any one of these criteria will result in a finding that the grievance is inarbitrable. See, e.g., Re Cambrian College and Ontario Public Service Employees Union; Union Grievance, October 27, 1993 (Devlin (unreported)); Re Seneca College of Applied Arts and Technology and The Ontario Public Service Employees Union, Local 560; Union Grievance concerning the Scope of the Bargaining Unit, October 29, 1998 (MacDowell (unreported)) (the "Seneca College" case), rendered under substantially the same language in the academic collective agreement. College Submissions The College submitted that the grievance was not properly submitted as a Union grievance, as it raised an issue upon which an individual employee was personally entitled to grieve and as the Union did not bring itself within the criteria for exemption under Article 18.3.3 (namely, that the employee did not grieve an unreasonable standard which was patently in violation of the collective agreement and adversely affected the rights of persons in the bargaining unit). For purposes of this case, the College did not dispute that the requirement for a driver's licence was a "standard" within the meaning of Article 18.3.3 or that an employee had not grieved the standard. Nevertheless, the College submitted that the standard could only be regarded as "unreasonable" if it were discriminatory and the College failed in its duty to accommodate an employee to the point of undue hardship. In this case, as it has not been demonstrated that the College failed to accommodate a particular employee, it was submitted that the Union has not established that the standard, namely, the requirement for a driver's licence, was unreasonable. Moreover, the College contended that the imposition of the requirement for a driver's licence could not be construed as a patent violation of the collective agreement. Finally, the College submitted it has not been proven that the standard adversely affected the rights of persons in the bargaining unit. 6 At most, it was submitted, the requirement for a driver's licence would have a potential impact on persons with an alcohol dependency or other disability who could not qualify for a licence. However, no such persons were identified and a hypothetical effect on persons in the bargaining unit would not be sufficient to satisfy the requirement for a Union grievance. As a result, the College maintained that the grievance was inarbitrable. Union Submissions The Union submitted that this matter was properly brought as a Union grievance under Article 18.3.3, but that even if it were not, the College waived compliance with the Article. As to the waiver argument, the Union submitted that (1) Article 18.3.3 is a procedural provision, dealing with the form of the grievance (i.e., whether a grievance can be properly brought as a Union grievance), which can be waived; and (2) the College waived compliance with Article 18.3.3 by failing to object to the form of the grievance until some six weeks prior to the date of the hearing, well beyond the third step reply to the grievance, the referral to arbitration and appointment of this Board to hear the matter. Although the Union maintained that the waiver argument disposes of the preliminary objection, the Union argued, in the alternative, that it satisfied the requirements for a Union grievance because the requirement for a driver's 7 licence was not a matter upon which an individual employee was personally entitled to grieve, as there was no indication that any applicant for the job posting had been rejected because s/he did not possess a valid driver's licence. As well, it was submitted that the Union's interests, namely, to ensure compliance with the Human Rights Code, were separate from those of an individual employee. Alternatively, if the requirement for a driver's licence was a matter upon which an individual employee was personally entitled to grieve, it was submitted that the Union satisfied the conditions for bringing a Union grievance under Article 18.3.3. In order to comply with these conditions, the Union accepted that it would have to demonstrate, among other matters, that the standard was unreasonable. Moreover, given that the College acknowledged that if the standard were discriminatory, it would also have been unreasonable, the Union submitted that the standard was indeed discriminatory, as the requirement for a driver's licence was not a bona fide occupational requirement. Furthermore, this was a matter which the Union claimed could be determined without reference to the duty to accommodate a particular employee. In addition, the Union submitted that the standard was patently in violation of the collective agreement and adversely affected the rights of employees in the bargaining unit. In any event, the Union contended that, to the extent Article 18.3.3 purports to deny access to arbitration to enforce substantive rights, it is contrary to Subsection 46(1) of the Colleges Collective Bargaining Act, which mandates 8 the arbitration of all differences between the parties arising from the interpretation, application, administration or alleged contravention of the collective agreement. In this case, Article 2.3 confers on employees the substantive right to be free from discrimination on grounds which are prohibited under the Human Rights Code, and an alleged violation of this provision would give rise to a difference between the parties. To the extent the second sentence of Article 18.3.3 purports to restrict access to arbitration to resolve this difference, the Union submitted that it is contrary to Subsection 46(1) of the Act. As well, giving effect to the second sentence of Article 18.3.3 to prevent enforcement of the obligations in Article 2.3 is arguably tantamount to contracting out of the Human Rights Code. College Reply Submissions The College submitted, in effect, that the Union has not brought itself within the criteria set out in Article 18.3.3, as the issue raised in the grievance does not impact broadly on members of the bargaining unit, as there would be few individuals without a driver's licence and even fewer who would not have a licence because of a prohibited ground under the Human Rights Code. Moreover, it is purely speculative that the College would not accommodate them. As to waiver, the College submitted, in substance, that Article 18.3.3, which establishes the conditions for filing a Union grievance in 9 circumstances where an individual employee would be personally entitled to grieve, creates substantive rights. Failure by the Union to satisfy these conditions, therefore, would not simply be a procedural matter, but rather a matter going to the Board's jurisdiction, which cannot be waived. Finally, the College submitted that the provision for separate mechanisms for the resolution of different kinds of grievances (namely, individual grievances, Union grievances, etc.) is not tantamount to denying access to arbitration to enforce substantive rights contrary to Subsection 46(1) of the Colleges Collective Bargaining Act, as there is a mechanism available for either the Union or the employee to proceed to arbitration. In any event, the issue in this case, i.e., whether the requirement for a driver's licence for the Team Leader position is discriminatory, should be arbitrated as an individual grievance in order that the matter of accommodation may be addressed. Decision The issue to be determined at this stage is whether the grievance was properly filed as a Union grievance. The ambit of a Union grievance is dealt with in Article 18.3.3, which confers upon the Union the right to file a grievance based on a "difference" relating to the interpretation, application, administration or alleged contravention 10 of the collective agreement. That Article, however, forecloses a Union grievance on any matter upon which an employee is personally entitled to grieve except where the Union satisfies certain stringent conditions. There can be no doubt that in this case there is a difference between the parties relating to the interpretation, application, administration or alleged contravention of the collective agreement. The Union claimed that the requirement for a driver's licence for the Team Leader position violated the right, enshrined in Article 2.3, to be free from discrimination on prohibited grounds under the Human Rights Code. The College, on the other hand, claimed that unless it can be demonstrated that it failed to accommodate a particular employee, a finding of discrimination cannot be made. Such is the nature of the dispute between the parties, which is sufficient, in our view, to constitute a difference of the kind contemplated by Article 18.3.3: see, by way of analogy, the Seneca College case. The question which then arises is whether the issue raised in the grievance was a matter upon which an individual employee was personally entitled to grieve. In this regard, the Union maintained that the requirement for a driver's licence was not a matter in respect of which an individual grievance could have been filed, as no applicant for the Team Leader position was rejected because s/he did not have a valid driver's licence. In most cases, an individual employee (usually an unsuccessful applicant) could file a grievance challenging 11 the outcome of a job posting and, in that context, raise issues regarding the qualifications for the posted position. In this case, however, there was no indication that any applicant had been refused the Team Leader position because of the lack of a valid driver's licence. Indeed, there was no suggestion that anyone who had applied for, or was even interested in applying for, the position was not in possession of a licence. Accordingly, although in other circumstances, an individual grievance could have been brought, which might have addressed the issue respecting the requirement for a driver's licence, in this case, there was no individual identified, or even alluded to, who would have been personally entitled to grieve. This, then, is not a case where an individual might have grieved but chose not to do so. Although factually distinct, this case falls to be determined on the same principles as the Seneca College case. In that case, the college created new positions of "lab monitor" and hired at least 14 new employees to fill these positions. However, the college refused to apply the academic collective agreement to these new employees. When the Union grieved, the college objected to the arbitrability of the grievance on two separate grounds, namely, that it was not a proper Union grievance and that it was not filed within the mandatory time limits set out in the collective agreement. With respect to the first ground, as new employees were denied access to the grievance procedure under the academic collective agreement for the first four months of their employment, the board concluded that unless the Union were allowed to grieve, 12 there would be no means of enforcing the agreement in respect of these employees for the initial four-month period. Accordingly, as there was a difference between the parties, which the individual employees were not entitled to grieve, the board decided under an analogous provision to Article 18.3.3 that the matter was the proper subject of a Union grievance. Although this case does not raise issues of access to the grievance procedure and deals with a different substantive issue, nonetheless, it is also a case in which the issue raised in the grievance is not a matter upon which an individual employee was entitled to grieve, as there was no employee (whether or not an applicant for the position) even remotely affected by the requirement in the job posting. Furthermore, we are satisfied, from the reference in Article 18.3.3 to "the" employee's having not grieved an unreasonable standard etc., that the employee who was personally entitled to grieve must be identifiable in order to foreclose a Union grievance. In the result, the Board finds that there is a difference between the parties relating to whether the requirement for a driver's licence for the Team Leader position violates Article 2.3 of the collective agreement. ,As this was not a matter upon which an individual employee was personally entitled to grieve, the Board finds the grievance to be arbitrable as a Union grievance under the collective agreement. In light of this finding, it is unnecessary to deal with the other arguments advanced by the parties. Accordingly, the preliminary objection is dismissed. The hearing will be reconvened to deal with the grievance on its merits. The Board will remain seised pending final disposition of the grievance. DATED At TORONTO, this~--'5'day of O..cteb~, 2003. Chair See Addendum Attached College Nominee "Mike Sullivan" Union Nominee IN THE MATTER OF AN ARBITRATION B E T W E E N: SAULT COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 612 AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE NO.: 161250 CONCURRING OPINION OF COLLEGE NOMINEE I will concur with the award of the Chair with the following addendum: The Chair has accurately characterized the difference between the parties as being whether the right to be free from discrimination under the Human Rights Code is infringed by the requirement for a driver's license and whether such alleged discrimination could not be accommodated. In the absence of any individual grievance, my view is that there is no factual basis on which the Board of Arbitration will be able to decide this grievance, particularly the accommodation issue. As such, although this preliminary award permits the Union to proceed, I see no realistic basis on which the grievance can be successful. DATED at Guelph, Ontario this 19th day of November, 2003. DAVID CAMELETTI