Loading...
HomeMy WebLinkAboutUnion 04-06-04 IN THE MATTER OF AN ARBITRATION Between ST. LAWRENCE COLLEGE ("the College") and THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the Union") RE: A JOB POSTING, GRIEVANCE No. 341801 THE BOARD OF ARBITRATION: PAMELA COOPER PICHER -- Chair ED SEYMOUR -- UNION NOMINEE RICHARD O'CONNOR -- COLLEGE NOMINEE Appearances for the Union: Kristin A. Eliot, Counsel John Molleson, President, OPSEU, Local 418 Julie Lott, Chief Steward, OPSEU, Local 418 Appearances for the College: Pat Brethour, Counsel Cindy Bleakney, Human Resources Consultant A hearing in this matter was' held in Kingston on April 27, 2004. INTERIM AWARD The Union has filed a policy grievance asserting that the College violated article 17.3.1 of the Support Staff collective agreement by reason of its failure to post the temporary vacant position held by Ms. Lynn Walker, that of Continuing Education Officer, Support Services Officer C, Payband 11. At the outset of the arbitration hearing, the College raised a preliminary objection to the arbitrability of the grievance. The College maintains that the Board of Arbitration does not have jurisdiction to entertain this grievance because, it alleges, the Union failed to file the grievance within the mandatory time limits set out in article 18.3.3 of the collective agreement. Article 18.3.3 is set out below: 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 .... 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 to 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. [emphasis added] 2 The parties agreed that the Board of Arbitration should determine the preliminary objection before proceeding t° the presentation of evidence on the merits of the grievance. The parties reached the following agreement on facts relevant to the College's preliminary objection: 1. Ms. Lynn Walker is the present incumbent to the position of Continuing Education Officer, Support Services Officer C, Payband 11 (hereinafter the "temporary employment") at the Brockville Campus. 2. Ms. Lynn Walker commenced an approved leave of absence from September 24, 2001 to September 22, 2002. On July 15, 2002, the leave of absence was extended until September 22, 2003. Ms. Walker's leave of absence has subsequently been extended and she remains on leave to date. 3. On September 17, 2001, Ms. Julie Johnston was appointed to fill the temporary appointment effective September 24, 2001. Ms. Johnston is a full-time bargaining unit member and this was a temporary promotion. On July 15, 2002, Ms. Johnston was adviSed that the temporary appointment would be extended until September 22, 2003. 4. Commencing in the fall of 2002, Ms. Johnston began filling the duties of the temporary appointment on a part-time basis, less than twenty- four hours per week. 5. Effective December 9, 2002, Ms. Kim Barr began filling the duties of the temporary appointment on a part-time basis, less than twenty-four hours per week. Ms. Bart is a non-bargaining unit part-time employee. Ms. Johnston continued to fill the duties of the temporary appointment for eleven hours per week. 6. Effective May 12, 2003, Ms. Johnston was appointed to the full-time permanent position of Academic Services Administrative Assistant, Support Services Officer C. 7. On July 28, 2003, Ms. Barr was appointed to the full-time permanent position of Student Services Program Clerk, Clerk General C, Payband · 6. The letter confirming that appointment is dated July 28, 2003 addressed to Ms. Barr and signed by Mr. David McFadden, the hiring manager. 8. Also effective July 28, 2003, Ms. Klm Barr was assigned to the "temporary appointment" on a full-time basis. Ms. Barr continues to hold the "temporary appointment" to date. The letter advising Ms. Barr of this temporary appointment is dated July 28, 2003 from Mr.. McFadden, the hiring manager. As indicated in the above agreed statement of fact, Ms. Barr, on July 28, 2003, was hired into a bargaining unit position of Student Services Program Clerk, Clerk General C, Payband 6. Ms. Barr has not yet assumed this position, however, because she was immediately put into the temporary position of Continuing Education Officer, Support Services Officer C, Payband 11, in order to backfill for the vacancy left by Ms. Walker's extended leave of absence. It is the Union's position on the merits of its grievance that pursuant to the provisions of article 17.3.1 of the Support Staff collective agreement, the College was required to post the temporary vacancy that was given to Ms. Barr effective July 28, 2003. Relevant to the College's preliminary objection to the timeliness of the Union's grievance, the Local Union President, Mr. John Molleson, filed the Union's grievance on September 12, 2003, some six weeks following the disputed July 28, 2003 temporary appointment of Ms. Barr as COntinuing Education Officer. According to the College, the Union's delay in filing the grievance is a breach of the mandatory time limits agreed to by the parties in 4 article 18.3.3 of the collective agreement and, thereby, renders the grievance inarbitrable. Article 18.3.3 of the collective agreement, set out above, stipulates that, "A Union grievance shall be presented in writing...within fourteen (14) days after the circumstances giving rise to the complaint have occurred, or have come to or ought reasonably to have come to the attention of the Union." It may be noted that the College does not assert that the circumstances giving rise to the complaint "ought reasonably to have come to the attention of the Union" at any time prior to Mr. Molleson's actual receipt of the copies of the letters to Ms. Barr dated July 28, 2003. Both the Union and College agree that the fourteen day time limit started to run upon Mr. Molleson's actual receipt of his copies of the July 28th letters, whenever that was. It is the position of the Union that Mr. Molleson did not receive these letters until the early days of September, which was well within fourteen days of the time he flied the grievance on September 12, 2003. The College, on the other hand, maintains that the latest point at which Mr. Molleson would have received his copies of the July 28th letters and thus triggered the fourteen day time limit would have been on August 11, 2003, upon Mr. Molleson's return from vacation. Counsel for the College maintains that the Union's failure to file a grievance for another month, i.e. until September 12, 2003, constitutes a clear breach of the mandatory time limits in article 18.3.3 of the collective agreement. Accordingly, the resolution of the College's preliminary objection turns on the determination of when Mr. Molleson received his copies of the July 28, 2003 appointment letters addressed to Ms. Barr. Ms. Sharon Lafferty is the Human Resources Clerk who processed the July 28, 2003 appointment letters that were sent to Ms. Barr. By approximately July 29~h, she put the Union's copies of the letters into a single envelope and mailed them through the Kingston Campus inter-office mail to Mr. Molleson's office. Ms. Lafferty estimated that the inter-office mail would have been picked up fr°m the Human Resources inter-office mail basket on or about July 29th or 30th. She further estimated that the envelope would have been received by Mr. Molleson a day or so later. The evidence of Ms. Lafferty establishes, however, that she did not track or follow up on whether Mr. Molleson had ever actually received the July 28th letters that she had put in the inter-office mail. Ms. Lafferty testified that at some point prior to August 18, 2003 Mr. Molleson made statements that indicated to her that he had received the letters of July 28, 2003 relating to Ms. Barr's appointment. Ms. Lafferty recalls that on an occasion when Mr. Molieson came into the Human Resources office while it was still temporarily I°cated in the trailer, i.e. before August 18th, he made a comment about a probationary employee being appointed to another position. The evidence of Ms. Lafferty does not suggest that Mr. Molleson linked his comment about a probationary employee to the situation involving Ms. Bart. The most that can be stated is that Ms. Lafferty concluded that the probationary employee he was referring to was Ms. Bart. It is clear from Ms. Lafferty's evidence that her recollection of the details of this conversation is not precise. She stated that she does not have a vivid recall of why Mr. Molleson came into the trailer office that day. She further commented that Mr. Molleson did not approach her specifically to talk about Ms. Barr or to ask her to do anything. She described his words as "a passing comment". Ms. Lafferty stated that because she was leaving on vacation on August 18th, she left a voicemail message for Ms. Cindy Bleakney, the Human Resources consultant who was returning from vacation the day Ms. Lafferty was leaving, to let her know that "John was questioning these two letters". The College did not call Ms. Cindy Bleakney to testify respecting the details of any message left by Ms. Lafferty respecting this matter. Mr. Molleson testified that he does not have any recollection of a specific conversation with Ms. Lafferty in the Human Resources' trailer between August 11th, when he returned from vacation, and August 18th, when she went on vacation. Mr. Molleson's current position at the College is that of Lab Technologist at the Health Sciences Department. He shares an office with four other technologists and uses that office for his Union business. It is through his mail slot at the Health Sciences Department that Mr. Molleson receives his Union mail. Mr. Molleson testified that he received the July 28th letters sometime during the two-week period prior to September 12th, when he filed the grievance. Mr. Molleson stated that he was very surprised when he opened the inter-office mail envelope containing his copies of the two July 28th letters because it was September and the letters were dated the end of July. Mr. Molleson testified that the first thing he did when he received the letters was to check his calendar to see when the fourteen day time limit would expire for filing a grievance. The evidence establishes to the satisfaction of the Board that Mr. Molleson had been aware of the situation around Ms. Walker's leave of absence and was firmly of · the view that the appointment of Ms. Barr to that temporary vacancy was a violation of the posting provisions of the collective agreement. Mr. Molleson described the College as being in a "construction disarray" during the summer of 2003 from the "superbuild" project that was underWay to. add office and teaching space to areas of the College. The evidence of Ms. Lafferty and Mr. Molleson establishes that during the summer of 2003 the Human Resources Department was temporarily housed in a trailer while its new office space was under construction. The Board further accepts the evidence of Mr. Molleson that at the relevant time in July and August of 2003, the campus maiiroom was temporarily relocated to a classroom while its permanent location was under construction. Without contradiction, Mr. Molleson described the mailroom as being in "disarray" during this period of time. DI=CISION Having carefully reviewed the evidence and the submission of the parties, the Board is unable to find, on the balance of probabilities, that the Union breached the time limits set out in article 18.3.3 for the filing of a Union grievance. The Board concludes that the evidence falls short of establishing that the Union failed to meet the designated mandatory time limit for filing its grievance, %vithin fourteen (14) days after the circumstances giving rise to the' complaint ... [came] to the attention of the Union". The Board, in other words, finds that the College has not established that the Union failed to file its grievance within fourteen days after Mr. Molleson, the Union President, received his copies of the July 28th, 2003 letters. Ms. Lafferty gave her evidence in a straightforward, truthful manner. Although her evidence establishes that Mr. Molleson came to the Human Resources' trailer sometime between August 11th, when he returned from vacation, and August 18th when Ms. Lafferty went on vacation, that alone does not establish that Mr. Molleson had received his copies of the July 28th letters. As Union President, Mr.. Molleson had ongoing Union business with the Human Resources Department and discussed multiple situations with personnel from Human Resources. According to Ms. Lafferty's recollection, Mr. Molleson's comment about an unidentified probationary employee being appointed to another position was not stated directly to her. Ms. Lafferty acknowledged that Mr. Molleson did not say that the probationary employee-he was speaking about was Ms. Barr. Ms. Lafferty acknowledged that she does not have a vivid recollection of why Mr. Molleson had come to the trailer. She stated, Simply, that during the course of whatever conversation he had in the trailer, he made a comment about a probationary employee being appointed to another position. The most that can be said is that, for whatever reason, Ms. Lafferty drew the conclusion that Mr. Molleson was talking about the July 28th letters to Ms. Barr. By her own admission, however, this conclusion was not based on any clear statement made to her by Mr. Molleson or on any specific reference to Ms. Bart. While Ms. Lafferty immediately processed the July 28, 2003 letters and put them into the inter-office mail on or about July 29th, Ms. Lafferty acknowledged that she did not follow-up and ensure that Mr. Molleson received them. While she assumed that he had received the letters because of comments he made in the Human Res. ources' trailer sometime on or before August 1.8, 2003, it is clear, for: the reasons set out above, that she had no objective basis for l0 concluding from anything Mr. Molleson said in the trailer that. he had actually received his copies of the July 28th letters prior to August 18th 2003. Mr. Molleson, like Ms. Lafferty, gave his evidence in a straightforward manner. The Board accepts that the first thing he did when he opened the inter- office mail envelope containing his copies of the two July 28th letters was to check the calendar to make sure he would meet the fourteen day time limit for filing the grievance. The Board accepts his uncontradicted evidence that he was Well aware of the situation around Ms. Walker's leave of absence and was firmly of the view that the appointment of Ms. Barr to that temporary vacancy was a violation of the posting provisions of the collective agreement. Having regard to the lack of clear evidence that Mr.'Molleson was speaking about the Barr situation when he had a conversation in the Human Resources' trailer before August 18th, having regard to Mr. Molleson's clear recollection that he received the July 28th letters in approximately the eady days of September, having regard to the straight forward recollection of Mr. Molleson that he immediately checked the calendar to make sure that he would file a grievance respecting the July 28th letters within the fourteen time limit, and having regard to the uncontradicted evidence that the mailroom was in temporary quarters and in "disarray" during the relevant period, the Board is not prepared to conclude that the Union filed the grievance outside the period of "fourteen (14) days after the circumstances giving rise to the complaint [the July 28, 2003 letters] ... [came] to ... the attention of the Union." The College asserted that the fact that Mr. Molleson did not immediately contact Human Resources to ask for an extension of the time limit undermines Mr. Molieson's credibility. Mr. Molleson, however, would not need an extension of the time limits if, as the Union contends and the Board accepts, he filed the grievance within fourteen days from the point when the circumstances giving rise to the complaint came to his attention, i.e. within 14 days of his receipt of the Union's copies of the July 28th letters. Accordingly, having regard to the foregoing and for the reasons set out, the College's preliminary objection to the timeliness of the grievance is, hereby, denied. In the result, the grievance may now proceed on its merits. The Board will leave it to the parties to contact the Board for scheduling a hearing on the merits. In advance of a scheduled hearing, the parties should notify and advise any affected incumbent persons of the scheduled hearing date. Dated at Toronto this 4th day of June, 2004. Pamela Cooper ~-h~ Chair fsc i concur. "Ed Seymour" Union Nominee I dissent for reasons set out below. "Richard O'Connor" College Nominee DISSENT OF COLLEGE NOMINEE, RICHARD O'CONNOR With respect, I must dissent from the majority award in this matter. My evaluation and assessment of the evidence as it came in persuades me to the view that the union knew, or ought reasonably to have known, of the appointment of Ms. Barr as Student Service Program Clerk prior to September 12, 2003, when the grievance was lodged. Accordingly, I would have dismissed the grievance. "Richard O'Connor" ]3