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HomeMy WebLinkAboutUnion 97-07-07 CAMBRIAN COLLEGE (the College) =AN'D- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) UNION POLICY GRIEVANCE (Support Staff) INTERIM AWARD BOARD OF ARBITRATION A. M. Kruger - Chair P. Hennessy - Member E. McVey - Member APPEARANCES For the College - J. L. Thomson, Counsel - S. Pratt - G. Toikka For the Union - R. A. Pharand, Counsel - B. Riess - C. Gagn6 HEARING AT SUDBURY, ONTARIO JUNE 18, 1997 -2- At the outset of our hearing, the College informed the Board that it had a preliminary objection which it wanted the Board to consider before hearing evidence on the merits of the dispute. The Union asked us to defer a decision on the preliminary objection until after we heard the merits of the matter before us. The Board ruled unanimously that we would limit this hearing to the preliminary objection. The College asked the Board to rule that under Article 18.3.3 of the agreement, this matter was not the proper subject of a Union grievance and accordingly should be dismissed. The College chose not to call evidence on the preliminary objection. The only witness who gave evidence was Mr. Bill Riess who testified tor the Union. Mr. Riess is the President of the Local and, in that capacity, he prepared and filed the grievance that resulted in this matter coming before this Board. He testified that Ms. Gagn6 had been hired by the College to work on "a project of a non- recurring kind". This meant she was excluded from the bargaining unit under Article 1.1 of the agreement. She never paid union dues during the time she was employed at the College. As an excluded employee she would not receive a copy of the collective agreement and would have no knowledge of her fights under the agreement. For this reason she did not grieve, and the Union grieved on matters that would otherwise be grieved by Ms. Gagn6. Mr. Riess felt that only after a board of arbitration found that Ms. Gagn6 had been a full- time employee and a member of the barga/ning unit during her employment, could she launch a grievance on her complaints. In the interim, the Union had to deal with this as a policy grievance for the matter to receive a hearing. The fact that Ms. Gagn6's name appears on the grievance was for identification purposes only. In his opinion, the grievance arose from the decision of the College to characterize the position that Ms Gagn6 occupied as one that involved work on "a project on a non-recurring kind". Just prior to October 19, 1995 when the Union grieved, the Union learned that this was not what Ms. Gagn6 had been doing since she began her employment at the College in February 1995. The -g- Union felt that Ms. Gagn6 occupied a newly created full-time position which should have been posted before anyone from the outside was hired. Since Ms. Gagn6 worked in this position as a full-time employee for over six months, the Union felt she had successfully completed her probation and was a permanent employee. Prior to filing the grievance, Mr Riess discussed the matter with Ms. Gagn6 but he did not suggest to her that she grieve. He felt her rights had been denied but did not feel he could represent her interests through an individual grievance. At the time he was unclear concerning Ms. Gagn6's right to grieve because she had not been considered by the College as a bargaining unit member. For this reason he filed a Union grievance seeking the benefits she was entitled to as well as the matters of concern to the Union such as the College's failure to post the position, loss of Union dues and the Union's interest in ensuring that bargaining unit work was done by members of the bargaining unit. When the parties met to discuss the grievance on October 31, 1995, the College admitted it had erred in its characterization of the position held by Ms. Gagn6 and that she was improperly classified as working on "a project of a non-recurring kind". Her position, in the view of the College, was that of an Appendix D employee. This would make her a member of the bargaining unit but with limited rights, including limited access to the grievance procedure. Mr. Riess told the Board that the Union did not accept the notion that the grievor was a Appendix D employee. In response to a question by counsel for the College, Mr. Riess explained that the grievance invoked all clauses in the agreement. Its primary focus was on the Union's concern that the position held by Ms. Gagn6 was not posted. The denial of Ms. Gagn6's rights was a secondary issue. After Mr. Riess completed his evidence, the Board heard argument on the preliminary objections. We will now summarize the position of the parties. -4- The College's Argument The College's position is that the grievance before us should be dismissed because it was improperly filed as a union policy grievance when it should have been initiated by Ms Gagn6 as an individual grievance. The College asked the Board to note that the Grievance Form (Exhibit 1) under "STATEMENT OF GRIEVANCE" says: "The employer is in violation of the relevant provisions of the Collective Agreement on, or about 1995 October 19 by Denying full time status (Carol Gagn6) pursuant to provisions of the Colleges Collective Bargaining Act". Later at step 3 of the grievance procedure the Union added the words "cutting of hours - missed in error". In the view of the College, this was a proper grievance for Ms. Gagn6 to file and not for the Union to launch as a policy grievance. She did not grieve and the Union chose not to encourage her to grieve. The Union is precluded under this agreement fi:om converting what should be an individual grievance into a union grievance unless certain conditions are met under Article 18.3.3. Furthermore the Union has improperly expanded its grievance to include such matters as failure to post the job held by Ms. Gagn6 and failure to remit dues to the Union. In order to understand the issue before this Board it is necessary to discuss it in the context of Article 18.3.3 of the agreement which is reproduced here in full: 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 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, 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. -5- Counsel for the College pointed out that while the Union could launch a Union grievance which deals with an issue that could be the subject of an individual grievance, that right was very limited under Article 18.3.3. The second semenee of Article 18.3.3 provided a three part test of the legitimacy of such a grievance and the onus was on the Union to show that it could meet all three aspects of the test. The grievance in question had to: - involve an unreasonable standard - the standard in question had to be in patent violation of the agreemem - the standard had to adversely affect the rights of persons in the bargaining unit. The College's position is that this grievance fails all three tests. Ms Gagn6 could have submitted it as an individual grievance and it was the Union's decision not to urge her to do so. No standard was involved here. Nor was there a patent violation of the agreement. Nor did the matters grieved adversely affect anyone in the bargaining unit other than Ms. Gagn6, whose interests could have been protected by launching an individual grievance under other sections of Article 18. Should the College again act as it did in this case, Ms. Gagn6's failure to grieve would in no way impede the rights of other employees to grieve. The College's position is that the emire grievance should be dismissed under Article 18.3.3. However, if the Board found any merit in the argument that parts of the grievance were appropriately filed under this provision, then the Board should limit its hearing to the merits of these aspects only and dismiss the remainder of the grievance. Union Armnnent The Union asked the Board to note that the College had supplied the Union with misinformation concerning Ms. Gagn6's appointmem. On the forms provided to the Union pursuant to Article 4.3 of the agreement, Ms. Gagn6's starting date was listed as May 1, 1995 when in fact she began her employment on February 13, 1995. More serious was the designation of her job as work on a "project of a non-recurring kind". Only on October 31, 1995, at a meeting to discuss the Union's grievance, did the College admit that Ms. Gagn6's was not on "a project ora non-recurring kind" and that she should have been a member of the bargaining unit as a Schedule D employee. The Union has a duty to protect bargaining unit work and members of the bargaining unit. To carry out these functions, the Union depends on the College for accurate information. In this matter the College itself concedes that it failed to carry om its role properly. As for the three-fold test in Article 18.3.3, the Union argued it could meet the test. Is there an unreasonable standard here? Yes - it is the duty of the College to provide the Union with correct information. The College admits to a patent violation of this standard. The College's negligence adversely affected other bargaining unit members who might have chosen to bid on the job held by Ms. Gagn6 had that job been properly posted. Even if Ms. Gagn6 could have grieved, the College's misinformation created uncertainty concerning her right to grieve and this should weigh in favour of the Union. The College's Reply While the College erred in the information it supplied to the Union, no standard was violated. The Union could have grieved the failure of the College to provide accurate information and chose not to do so. What is grieved here is Ms Gagn6's status, a matter Ms. Gagn6 herself could have grieved. The grievance does not deal with the encroachment on bargaining unit work and the Unit cannot expand the grievance to include this issue. The Award The Board cannot accept the College's argument that the Grievance Form fails to establish the nature of the grievances the Union has brought to this Board. It is tree that the section entitled "Statemem of Cn'ievance" only indicates part of the complaint but anyone reading the section "Settlement Desired" (reproduced below) would understand that there is more to the complaint. Between these two sections all of the matters the Union has brought to this Board are set out. SETTLEMENT DESIRED Full redress, including but no 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. Backdate all of the above to the first day of employment resulting in a full time qualifying period. Any attempts to settle this grievance before arbitration via provisions of the Collective Agreement, or any other means, shall be privileged, and shall not prejudice any result of said arbitration. We mm now to section 18.3.3 of the agreement to see whether these complaints are properly before us. Let us turn to Article 18.3.3. There is no disagreement that the first sentence provides for union policy grievances concerning any matter deemed to be in violation of any part of the agreemem. However, this is qualified by the next semence which is crucial in the matter before us. This semenee prohibits the Union fi.om filing a union grievance on any matter that could be dealt with as an individual grievance unless three requirements are met. Numerous arbitration awards under this agreement establish that all three requirements must be satisfied for the grievance to be heard as a union grievance. Were these matters a proper subject for a union grievance? We conclude that the numerous complaints raised in the grievance must be separated into two parts. In one category we put the matter of the threat to the integrity of the bargaining unit as a result of the exclusion of admitted bargaining unit work fi.om the bargaining unit, the alleged'failure to post the position held by Ms. Gagn6 and the failure to remit dues to the union for the period of Ms. Gagn6's employment. None of these matters would be appropriate for an individual grievance. All of them constitute legitimate matters for a union grievance under Article 18.3.3. The College in its response to the grievance at the meeting of October 31, 1995 conceded that the -8- work done by Ms. Oagn6 was in fact bargaining unit work and that she should have been a member of the Union and paid union dues. We assume these matters have been resolved but if not, we are prepared to hear further evidence concerning these issues. The one issue ~om this category of complaints that remains unresolved is the allegation that the College violated the agreement in failing to post the position held by Ms. Gagn6. We expect to hear more on this matter when we reconvene. What about the other issues raised concerning the appropriate pay and benefits for Ms. Gagn6 for the work she did and her loss of full-time status? We believe that Ms. Gagn6 could have grieved these matters at the time the Union filed its grievance on October 1995. The College may have categorized her as a non-bargaining unit employee but this was open to challenge. The College cannot unilaterally determine the status of an employee and thereby deny the employee the rights she is entitled to if properly classified. There is no doubt that after the meeting on October 31, 1995, the college conceded that Ms. Gagn6 was doing bargaining unit work and as a member of the bargaining unit she could grieve. Ms. Gagn6 did not grieve and for the Union to grieve these issues, it must meet the three-fold test in Article 18.3.3. Numerous awards under this agreement have established that the union must meet all three aspects of the test for the grievance to be properly considered by an arbitration board. We concur in this view. We have carefully considered this matter and we conclude that the Union has not met this test. We find there is no standard that has been violated here. Nor can we establish that any of these issues have had an adverse impact on other members of the bargaining unit. Accordingly we dismiss these particular complaints. We conclude by stating that what remains to be heard are three issues, the first two of them possibly resolved at the October, 1995 meeting. -9- The thr~ outstanding issues are: · tl~ loss of~ uait work as a nsult of the way in whi~ M~. C_ns~n~'s positlo,~ wes cbarect~ by the CoUcgc. . thc loss of union dues as · resuh of Ms. Oagn~'s designation as a non-bargaining unit employee. - the allegation that the College failed to pon ~hc position filled by Ms. Gagn~ as required uy mc~m. Another hearing wU] be scheduled ifd~e ps'ties ~ to resolve the~ me~er~. 0?:04:{3? I4:223 ~'?05 S60 (}413 EL.~IER )IcYEY O001 NORTtERN LABOUR ARBITRATION SERVICES 84 CHERRYWOOD CRESCENT 5~0-2372 SUDBUaY, ONTARIO ELMER McVEY P3B 3Z8 Mr. Arthur Kruger, Re. Cambrian College ~:~d OPSEU (Union Policy Grievance) OPSBU. File #95D554. I concur with the the award with the understanding tha: the employee Ms. Ga~ne be given the opportunity to bid on the job when and if the job is posted.This would reinstate her to full time status. Research - Arbitrations - Negotiations