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HomeMy WebLinkAboutMitsopulos/Union 97-07-09 IN THE MAT'I'ER OF AN ARBITRATION ~~(.~ ) BETWEEN CAMBRIAN COLLEGE Employer - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION Union AND IN THE MATTER OF A GRIEVANCE OF O. MITSOPULOS AND ' UNION GRIEVANCE Grievor BEFORE: Prof. C. Gordon Simmons, Chairperson Ms. Patricia Hennessy, Employer Nominee Mr. Elmer McVey, Union Nominee APPEARANCES ON BEHALF OF THE EMPLOYER: Ms. Patricia G. Murray, Counsel Ms. Susan Pratt, Staff Relations Officer Ms. Tina Surbretto, Registrar APPEARANCES ON BEHALF OF THE UNION: Mr. Richard Farand, Counsel Mr. Bill Riess, President, OPSEU Local 656 Ms. Elizabeth Rose Ms. Diane Urich A hearing into this matter was held in Sudbury, Ontario on April 15, 1997 followed by correspondence by nominees to the hearing. The grievance was filed by the Union stating (Exhibit 1, p. 3): STATEMENT OF GRIEVANCE The employer is in violation of relevant provisions of the Collective' Agreement on, or about, 1995 October 27 by denying full time status to an employee (Olympia Mitsopulos) pursuant to provisions of the Colleges Collective Bargaining Act. SETTLEMENT DESIRED Full redress, including, but not limited to immediately instate the incumbent to full time status, and post the position according to relevant provisions of the Collective Agreement. Reimburse the incumbent and the Union as appropriate for all monetary gain accumulated by the College through denial of dues, benefits, holidays, rights, etc. under the Collective Agreement. Back-date all of the above to the first date of employment resulting in a full time qualifying period. The Employer raises two preliminary objections and seeks a ruling before proceeding to the merits. The first preliminary objection the Employer objects to is the form of the grievance seeking to instate (install) the grievor to full- time status. That is, the Union is requesting the remedy of an individual matter so therefore it is not a proper union grievance within the collective agreement. Union grievances are provided for in Article 18.3.3 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 except where the Union establishes that the employee has not 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, with'in 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 he processed in accordance with Step No. 3 of the grievance procedure. -3- The second objection is that the grievance was flied beyond the mandatory time limits. The grievor ended her engagement on September 23, 1995 and the grievance was not filed until October 27, 1995. The Employer relies on Articles 18.3.1 and 18.3.3 to say that grievances must be filed within 14 and 15 days respectively after the circumstances giving rise to the complaint have occurred. In the instant situation, the grievance failed to comply with the mandatory time requirements. Article 18.3.1 follows: 18.3.1 Group Grievance Where a number of employees in any College have identical grievances and each employee would be entitled to grieve separately, they shall present a group grievance in writing signed by each employee to the DLrector of Personnel, or as designated by the College, within fifteen (15) days following the occurrence or origination of the common circumstances giving rise to the grievance commencing at Step No. 2 of the grievance procedure. The grievance shall then be treated throughout the balance of the grievance procedure as a single grievance. The Employer also advanced another argument that it claims precludes the Union and the grievor from succeeding in this matter. While it does not go directly to the merits it is advanced in support of the position that the grievor was never in the bargaining unit to begin with. The Board was informed that the grievor was engaged in the Registrar's Office to commence work on September 10, 1994 and that the term of the employment was to end on September 22, 1995 during which period she worked 35 hours per week. The Employer informs the Board that its evidence will be that the grievor was engaged for a one year contract. The grievor is hearing impaired. She was a recent graduate from the College's Office of Skills Certification program and the College was asked by the Ontario Training and Adjustment Board (formerly March of Dimes) if the College would give the grievor an opportuniW to -4- perform work with non-profit employers. The Registrar's Office decided it had a moral and social obligation to extend to the grievor the offer of a one year project. During the course of the one year when the grievor was employed in the Registrar's Office she performed filing duties, shredded documents, and received transcripts, among other duties. Because of her hearing impairment she was not able to answer the telephone nor was she able to perform reception duties. According to the Employer she received considerable training and was not occupying any bargaining unit position and no vacant bargaining unit position existed. The Union's reply to the Employer's submissions was that Article 18.3.3 provides for Union grievances and while the Union acknowledges that the grievor could have grieved. But, in the instant situation, the grievor is deaf and the Employer takes the position that she was engaged in a special non- recurring project. Moreover, the Employer does not recognize the employee as falling within the bargaining unit. Consequently, the Union pursued the grievance on her behalf. The Union argued that in these circumstances the grievance ought to proceed on its merits. Ms. Susan Pratt testified on behalf of the Employer. She has been a Staff Relations Officer for nine years. She is employed in the Human Resources Office and administers the collective agreements between the Employer and the Union regarding academic and support staffs. She testified that the contract of employment with the grievor was as set out in a letter from Mr. Hurley, director, human resources indicating that the dates of employment were to be from September 1994 to September 22, 1995 (Exhibit 5). Further, a contract -5- between the Ontario Training and Adjustment Board (OTAB) was introduced as Exhibit 3 setting out the agreement between the OTAB and Cambrian College whereby OTAB would subsidize the employment of handicapped people who were engaged to work at the College. This program was to run from September 19, 1994 to September 18, 1995. Ms. Pratt informed the Board that the reason the contract continued with the grievor until September 22 was that September 22, 1995 was a Friday. Mr. Bill RiesS, president of Local 656 since December 1990 testified on behalf of the Union. He stated that he flied the grievance on October 27 due to information he received through the "grapevine" informing him that he should look into the situation because the grievor was then working 24 hours or less per week (versus the 35 hours per week previously) and this situation continues to the day of the hearing. Mr. Riess testified that the grievor was fearful of losing her job if she should file a grievance and Mr. Riess did not push her to do so. But because of the information that he had obtained from her he felt that he should file a grievance. Consequently, he flied a Union grievance. Mr. Riess testified that he explored the possibility of the grievor attending the hearing but said that she was terrified to do so and did not appear at the hearing. A list of "PART-TIME SUPPORT STAFF FROM 1995/06/22" was entered into evidence as Exhibit 7. On that list appears the following: 119) MITSOPULOS, OLYMPIA " 046120 CLERK GENERAL A REGISTRAR Start Date: 1994/09/19 Termination Date: 1995/09/22 Hourly Rate: 12.15 Hours/week: 35.00 Payband: 02 Description: MARCH DIMES SPEC. PROJECT -6- Mr. Riess acknowledged that it was dated June 22, 1995 and he probably received it within a few days of its publication. He also acknowledged that it indicates that the grievor was on a "March Dimes Spec. [Special] Project". Mr. Riess went on to acknowledge that the special designation as indicated in Exhibit 7 would take her out of the bargaining unit. In evidence-in-chief Mr. Riess was asked the following: Q: "About what time did the grievor come to you?" A: "Exactly I can't say - I heard rumours and then met with the grievor within a two or three day period." Q: "As Union President do you believe the grievor ought to have filed her grievance after she finished her six month period after September 19947" A: "I don't know how it worked out - she was full-time but in a project - that puts her in a grey area. So it's hard to say how it would go." DECISION #1 In considering the Employer's preliminary objection as to the form of the grievance - that is - a Union grievance on behalf of an individual employee the Board is of the view that the Employer's objection is a valid one. While the Union may have been uncertain as to whether the grievor was an employee or not the remedy it seeks is to have her instated into a full-time position. If she had been on a Social Service Employment Program' which is operated by the Ontario Training and Adjustment Board, the Union acknowledges that she would not have been an employee per se and would not have been entitled to have been included in the bargaining unit. From the evidence that has been presented it is this Board's conclusion that the grievor was indeed on a Social -7- Service Employment Program for training purposes during the period between September 19, 1994 and September 22, 1995. Accordingly, it is the view of this Board that the grievance is not a proper union grievance and the preliminary objection should be sustained on that ground. DECISION #2 On the second ground that the grievance was filed beyond the mandatory time limits which was October 27, 1995 when the occurrence arose shortly after September 22, 1995 the preliminary objection must be sustained on that ground as well. The decisions are legion that hold to the view that the time limits contained in the collective agreement are mandatory. See Humber College and OPSEU (I-I.D. Brown), unreported dated February 18, 1992 at p. 6 where the board states: It has consistently been held by the Arbitrators that the provisions of this agreement for the presentation of grievances are mandatory. It is also held that a Board of Arbitration does not have jurisdiction to extend the time limits either under the collective agreement or under the Act. There is no provision in the College Collective Bargaining Act to allow the Board to vary time limits under the Agreement. This view has been followed by Arbitrator Keller in St. Lawrence College unreported dated November 5, 1993. So on the timeliness issue the preliminary objection is also upheld. The Board is without jurisdiction to proceed in this matter to the merits. For all the foregoing reasons, the grievance must be and is hereby dismissed. ~ -8- Dated at Kingston, Ontario, this 9th day of July, 1997. C. Gordon Simmons Chairperson " Patricia Hennessy" I concur/dissent Patricia Hennessy Employer Nominee Dissent Attached I concur/dissent Elmer McVey Union Nominee 05/13/9Z 16;54 '~705 560 0413 EI_~{ER ~cVEY ~002 iN THE MATTER. OF A GRIEVANCE BETWEEN CAMBRIAN COLLEGE AND O P S E U LOCAL 6x6 THERE .iRE Two ISSUES IN THIS GR!£\'~NCE ( ! ) TIME LIMITS (2) UNION C-RIEVANCE OR EMPLOYEE ~!EV:INCE THE FIRST MUST BE DECIDED BEFO~tE THE SECOND (;AN BE HEARD ON THE T!_MF. LIMIT_.q THE COLLEGE .IRGUES TgAT THESE TYME LIMITS HAVE BEEN EXCEEDED AND THAT T~E GRIEVANCE SHOULD NOT BE HEARD, T~]E UNION ON THE OTHER HAND STATES /'HAT THE GRIEVANCE WAS FILED SHORTLY AFTER THE UNION DISCOVERED 7'HAT THE EMPLOYEE WAS CONTINUING IN HER JOB ON PART TIME. iN FACT HER JOB DID NOT CHANGE THERE WAS JUST LESS OF IT ~ND (LESS HOURS) DOWN FROM 35 HOURS PER WEEK TO 24 HOURS. EXHIBIT I - PAGE 1 PABAGR.APH 3 ~NDIC:ITES THAT THE EMPLOYEE WAS NI,qEb PURSUANT TO THE SOCIAL SERVICES EMPLOYMENT PROGRAM "THE PROGRAM MEETS THE DEFINiTiON OF A PROJECT OF NON-RECURRiNG KINI) AND TI-1E.qEFORE, iNDIVIDUALS ~tiRED PURSUANT TO 1T ARE E.YCLUDED FNOM THE CO[~LF.(~ I%~E ~C-R.~.E,~N~P UNDER A~TICL. E.. 1. ]" ARTICLE ~. 1 OUTLINED A~E THE EXCLUSIONS FRO?! THE B.%~GAI~ING UNIT - LAST SENTENCE-"PERSONS HI. RED ~'OH. A PSOJ£CT OF A NON-RECU~tKING KIND AND THEREFORE INDIVIDUALS Hi~ED THE COLLECTIVE AC-~mEMmNT UNDER ARTICLE i.i". 05/13/97 16:55 "~705 560 0413 EI.~fl~.R McVEY ~003 -2- _ARTICLE 1 -6 iNDIVIDUALS MAY NOT BE MAINTAINED iN A PROJECT OF A NON-RECURRING KI:~D FOR A PERIOD Of' MORE THAN fl2) CONTINUOUS MON'PH$ UNLESS THERE IS A EXTENSION :AGREED TO IN WRITING BETWEEN THE LOCAL UNION AND THE COLLEGE. TI{E EMPLOYEE WAS HIRED ON SEPT.10/94 AND WORKED UNTIL SEPT.23/95 FOR 35 HOURS ~ER WEEK. SHE THEN CONTINUED IN THE OOB ON PART TiME DOING THE S.~ME JOB RUT LESS OF IT f BECAUSE OF LESS I~OURS], THERE l'S NO E%LDENCE TO [NDICA?E THAT THE COLLEGE ATTEMPTED YO 6ET AN EYTENSION ]'O CONTINUE THE GRIKVE~. tN AN~' JOB FULL OR PART _riME, ON OCTOBER 27/95 THE UNION GR1E%ED AFTER DISCOVERING THAT THE E~/PLOYEE WAS STILL EMPLOVED IN THE SAME POSITION AFTER TERMINATION OF TiIE SPECIAL PROJECT. EXHIBIT 4-(589) THE SPECIAL PROJECT WAS TERMINATED_ SEPT Z"/'~5~ . SEPT 25/95 rS THE START DATE OF ~ER PART TIME EMPLOYMENT NOTK: JOB IN BOTH INSTANCES i$ CLERK GENERAL"A" THE PAY iS THE SAME - flOURS ARE NOw 24 HOURS PER WEEK~ THE PRESIDENT OF THE UNION INTERVIEWED THE EMPLOYEE. BETWEEN OCT 22 AND THE 27TH. C,N OCT 27/95 THE GRIEVANCE WA.q ViL~D WIIICH !$ WITUIN TIiE TiME LIMITS ARTICLE !8.3-3 (1~ DAYS AFTER THE CIRCUMSTANCES G~VING RISE TO THE CO~IPL.AiNT HAVE OCCURRED, OR HAVE COHE TO OR OUGHT TO REASONABLY TO HAVE COME TO THE ATTENTION OF THE UNION ) YIIE PRESIDENT BECAME Ag'ARE DURING THE PER. TOD OF IiME NOTED ABOVE OCT 22 AND 27TH ,J. 9~6. THE COLLECTZVE AGREEME}iT STANDS IN THF. WA%- ()P ANY LEO.AL ~IGHT THE UNION WOUI,D HAVE IF THE UNION O[{.IEVED PR, IO[{ TO THE DATE iN OCT/95 05/13/97 16:55 8705 560 0413 ELKER Mc~Y ~004 -3- IT DOES NOT MA};_E ANY DlbF£~qENr'E THAT THE E_~IPLO%=EES NAM£ APPEARED OR DID NOT APPEAR ON ANY LIS/'. 'rliE E~IDI:OYEE IS EXCLUDED "As~ A "PERSON H1RED FOR A PROJECT OF A .,'~ON-,.qECL"RRiNG KIND" SEC,l,1 OF THE C.B.A. SO THERE WOULD NOT AND WAS NOT ANYTHIN~ TO COME TO THE ATTENTION OF TiIE UNION UNTTL THE E~PI,OYEE BECAME A PART TiME EP~PI,OYEE EVEN THOUGH AS A PART TIME SHE WAS ALSO EXCLUDED UNDER THE SAHE PROVISION OF THE C.B.A. TO SUGG£ST AS THE COLLEGE HAS THAT BECAUSE THE E.~!PLOYEES NAME APPEARED ON A LIST TN JUNE OF 95 - THE UNION SHOULD THAN HAVE GRIEVED IS STRETCHING IT A LONG WAV. I.OOKTNG AT THE LiST EXHIBIT HER NAME iS I!9TII OF ]46. IS EXHIBIT 7 A COMPLETE LIST OF THE EMPLOYEES AS OF JUNE 22/95? %~:~'TR 146 NAHE$ AND OTHEP~ INFO iT kS ALMOST IMPOSSTBI~E TO FOR ANY ONE I'O CONTACT ALL OF THESE PEOPLE LET ALONE INTERV'TEW THEM. AS STATED EARLIER THE EMPLOYEE t4A$ TNTERVIEWED BY THE PRESIDENT OF THE UNION BETWEEN THE 22ND AND THE 27TH OF OCTOBER AFTER £~E WAS INFORMED THAT SHE WAS EMPLOYED PART TIME ON A JOB THAT W'AS ~IGHTFULLY ~ITIIIN THE BAROAINING U~iT. HE THEN FiI:ED THE GRIEVANCE o WHEN ALI, IS TAKEN INTO CONSIDERATION THE UNIONS POS!'TTON SHOUL, D BE UPHELD AND THE ACCEPTANCE OF THE FACT THE GRIEVANCE WAS FILED WITHrN THE TIME LiHITS ESTAB~,[SHED BY ]'HE C.B.A. THEREFORE rT iS MY OPINION THAT THE UNioNS PoSITiON BE UPHELD(THE GHIEVANCE FILED WiTHiN TIME L!~I!T} AND THE"GR!EVANCE BE HEARD ON iTS i~ERZTS ON A DATE .%CCEPTABL;;', TO BOTH PA.~TIES. _~IA%_ 03/97~~/~l .......{'~~/~~L'_~'IO~ N~3~i~N ~'E )