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HomeMy WebLinkAboutUnion 93-10-27 IN THE MATTER OF AN ARBITRATION BETWEEN: CAMBRIAN COLLEGE - and - 0NTARIO PUBLIC SERVICE EMPLOYEES UNION UNION GRIEVANCE BOARD OF ARBITRATION: JANE H. DEVLIN CHAIRMAN ALLEN S. MERRITT COLLEGE NOMINEE JON MCMANUS UNION NOMINEE Appearances for the College: D.K. Gray R. Hurly J. Nother Appearances for the Union: Michael Gottheil Louise Jovic Mary Jane Veinott Jeannine Sauve The grievance which was filed by the Union is as follows: STATE~]~NT OF GRIEVANCE The College is in violation of the Collective Agreement by posting the position currently held by J. Sauve in the Equity Office since J. Sauve is presently a replacement for Sue Salewski and should remain until Sue Salewski returns to work. Violation of Article 17 and any other Article that applies. SE~FL~DESIRED - that the College return J. Sauve to her former position in the Equity Office when her employment as an Appendix D replacement ceases. - that the College pay out a lump sum payment for mental duress to Jeanine Sauve in the amount of $5000.00. At the outset of the hearing, the Employer objected to the arbitrability of the grievance on the ground that the issue raised is not the proper subject of a Union grievance. The parties agreed to have the Board determine this objection prior to proceeding with the hearing on the merits. Article 18.3 of the collective agreement provides for various types of grievances and Article 18.3.3, which deals with Union grievances, is as follows: "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 2 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. . ." The factual background which is relevant to a determination of the College's preliminary objection was outlined to the Board as follows: Prior to 1989, Jeannine Sauve was employed as a,Support Services Officer B at payband 9 in the College's Equity office. It is the function of this office to promote employment equity throughout the College. In 1989, the only other employee in the Office was Ms. Sauve's supervisor, Pat Kallio, whose job title was Equity Co-ordinator. Ms. Kallio was a member of the academic bargaining unit. In late 1989, Ms. Sauve began a period of extended sick leave for which she received both short and long term disability benefits. During Ms. Sauve's absence, her position was posted on a temporary basis and was filled by a, number of employees, each of whom was paid at payband 9. At some point during Ms. Sauve's absence, Ms. Kallio passed away and was replaced as Equity Co- ordinator by Joanne Nothero 3 Subsequently, in the late spring of 1992, by which time Ms. Sauve had been absent for a period in excess of two years, the College wrote to her, advising her that if she did not return to work, her employment would be terminated. Thereafter, on August 4, 1992, Ms. Sauve returned to work in the Equity office. By that time, there was also another employee, in addition to Ms. Nother, working in the office. Either at the time of Ms. Sauve's return to the Equity office or shortly thereafter, her position was downgraded to payband 7 although there is no dispute that Ms. Sauve continued to be paid at payband 9. It would appear, however, that the other employee in the Office was being paid at payband 7 and the Union filed a grievance claiming that, as this employee had replaced Ms. Sauve, she ought to have been paid at payband 9. Following her return to work, Ms. Sauve experienced certain difficulties working with Ms. Nother and, further, believed that she was being harassed as she was required to perform certain clerical duties which were below the level of her position as a Support Services Officer B. As a result, Ms. Sauve was encouraged to seek another position within the College. In fact, she subsequently obtained a temporary position in the Futures Office at payband 10. Evidently, the position had been posted on a temporary basis for a six-month period as the incumbent, Susan Salewski, was absent on sick leave. Ms. 4 Salewski later passed away and a grievance was then filed by the Union claiming that Ms. Salewski's position ought to have been posted on a permanent basis. The College, however, claimed that Ms. Salewski's position no longer existed and that, by that point, Ms. Sauve was filling another temporary position in the Futures office for which funding is available until March of 1994. In the meantime, the College posted a permanent vacancy for the position of Equity Clerk in the Equity Office at payband 7. It was the posting of this vacancy which caused the Union to file the grievance presently before the Board. The Union explained that Ms. Sauve did not file a grievance as she believed that a dispute between herself and the Equity office might raise concerns about the ability of that Office to carry out its function of promoting employment equity. In any event, it was the submission of the Union that Ms. Sauve's position was improperly downgraded and ought not to have been posted on a permanent basis as she was occupying a temporary position in the Futures office. The College, on the other hand, took the position that the Equity office no longer required the duties of a Support Services officer B and that the position of Equity Clerk was, in effect, a new position which the College was required to post in accordance with the provisions of the collective agreement. Ms. Sauve did not apply for this position which was awarded to Diane Crucker who attended the hearing and 5 was provided with an opportunity to participate in the proceedings. Apart from Article 18.3.3 which is set out above, the parties also made reference to the following provisions of the collective agreement: 8.1.4.1 Return from Long Term Disability Where a person who is eligible to receive LTD benefits is medically capable of returning to his/her former position within twenty-four (24) months of being eligible to receive benefits, the person shall be assigned, within a reasonable period of time, to: 1. his/her former position, if such position continues to exist, or 2. a comparable classification in the same payband to his/her former position, provided he/she is capable of performing the job and such a position exists. Such placement shall also be subject to the person's seniority at the time he/she became eligible to receive LTD benefits. A person shall not be required to return to work within twenty-four (24) months of being eligible to receive LTD benefits, unless he/she is medically capable of performing the duties of his/her former position. 17. JOB POSTINGS/PROMOTIONS 17.1 Notices Notice shall be posted of a vacancy in a classification covered by the Agreement for a period of five (5) days at each campus and, at the same time, shall be sent to other locations of the College. No outside advertising for the position shall be conducted and no employee hired from outside the College until the position has been posted for the said five (5) days. Such notice shall contain the classification, payband, hourly rate range, current Campus location, current hours of work, current shift(s), and an outline of the basic qualifications. Such notice shall be posted in appropriate locations accessible to employees. For the purposes of this Section, reference to days shall exclude Saturdays, Sundays, and statutory holidays, copies 6 of all posted vacancies shall be sent to the Local Union President at the time of distribution for posting· 17.3 Temporary Assignments 17.3.1 Temporary Postings Where the College has at least four (4) weeks' notice of a temporary vacancy in the bargaining unit which is expected to be of more than four (4) months' duration, the College shall post the temporary vacancy so that bargaining unit employees can indicate their desire to be selected for such vacancy. Recognizing that the College reserves the right to select a person in the bargaining unit or hire a temporary employee at its discretion, where a bargaining unit employee is selected as a temporary replacement the employee will have the right to return to his/her regular position or its equivalent on the expiration of the temporary assignment· The first resultant temporary vacancy shall be posted in accordance with this clause if it meets the criteria· It is understood that none of the clauses of Article 17.1 apply to temporary vacancies. During argument, the Union also referred to Article 15 of the agreement which sets out the procedure to be followed in the event of layoff. In particular, this Article provides for notice to the Union in the event of a proposed layoff; for meetings between representatives of the College and the Union and, for notice to affected employees. The layoff procedure is set out in Article 15.4. It was the submission of Mr. Gray, on behalf of the College, that the issue raised in the grievance could have been the subject of an individual grievance on the part of Ms. Sauve. In these circumstances, Article 18.3.3 provides that the Union 7 may file a grievance only if it establishes that the employee did not grieve an unreasonable standard which is patently in violation of the collective agreement and adversely affects the rights of persons in the bargaining unit. In this case, Mr. Gray contended that no "standard" was involved as the posting of the vacancy resulted from a change in the duties required in the Equity Office. Further, it was submitted that the posting could not be construed as a patent violation of the agreement, nor did it involve a general practice affecting employees apart from Ms. Sauve. In the result, Mr. Gray asked the Board to dismiss the grievance as inarbitrable. It was the submission of Mr. Gottheil, on behalf of the Union, that while Ms. Sauve could have grieved, the issue raised was also the proper subject of a Union grievance. In this regard, Mr. Gottheil contended that Ms. Sauve returned to her position in the Equity Office in August of 1992 and that, having failed to follow the procedure under Article 15 or to advise either the Union or Ms. Sauve that her position had been abolished, it was not open to the College to claim that the position no longer existed. As a result, it was a patent violation of Article 17.3 for the College to post a permanent vacancy in the Equity office when Ms. Sauve was occupying a temporary position in the Futures office. Moreover, it was submitted that this practice, if generalized, could affect other employees applying for temporary positions within the College. 8 In the result, Mr. Gottheil contended that the criteria set out in Article 18.3.3 have been met and that, if necessary, the Board could modify the relief claimed in th~ written grievance to conform with the requirements of that Article. Mr. Gottheil further submitted that if there was any doubt about whether the posting constituted a patent violation of the agreement, the appropriate course would be to reserve on this issue and hear the grievance on its merits. The issue, then, is whether the grievance conforms with the requirements of Article 18.3.3. The Board notes that, in this ArtiCle, the parties have placed strict limits on the circumstances in which the Union may grieve a matter which could have been the subject of an individual grievance. In this regard, Article 18.3.3 provides that a Union grievance shall not include any matter in respect of which an individual employee would be entitled to grieve except where the Union establishes (1) that the employee has not grieved an unreasonable standard; (2) that the standard is patently in Violation of the collective agreement; and (3) that it adversely affects the rights of members of the bargaining unit. As noted in a number of awards, all three criteria must be satisfied and the Union's failure to establish any one of the three will result in a finding that the grievance is inarbitrable: see Algonquin College of Applied Arts and Technology and Ontario Public Service Employees Union January 14, 1980 (Brandt (unreported)) and Seneca College and ontario 9 Public Serv.~ce E~ployees Union January 31, 1991 (P.C. Picher ( unreported ) ). In this case, there was no dispute that the grievance deals with a matter in respect of which Ms. Sauve was entitled to grieve and the issue, therefore, is whether the criteria referred to in Article 18.3.3 have been satisfied. In this regard and leaving aside for the moment whether an unreasonable standard is involved, in the Board's view, it has not been established that the action taken by the College constituted a patent violation of the collective agreement. While Article 17.3.1 provides that a bargaining unit employee selected as a temporary replacement is entitled to return to his or her regular position or its equivalent on the expiration of the temporary assignment, the College maintained that Ms. Sauve's regular position ceased to exist. In fact, it would appear that this occurred prior to Ms. Sauve obtaining a temporary position in the Futures office although she evidently continued to be paid at payband 9. In any event, it was the position of the College that it no longer required the duties of a Support Services Officer B in the Equity Office and the necessary functions could be performed by an Equity Clerk. As this was a new position, the College contended that it was required to comply with the posting provisions set out in Article 17.1. While the Union maintained that Ms. Sauve's position continued to exist and, in fact, had been improperly downgraded, it is apparent that any decision in this regard must turn on a factual determination as to the nature of the duties required in the Equity office. Based upon the facts outlined to the Board, however, it cannot be said that the posting in issue involved a patent violation of the collective agreement. At most, the Union may have an arguable case but this is not sufficient to satisfy the second of the three criteria set out in Article 18.3.3. Moreover, although the Union made much of the fact that the College did not give notice either to the Union or Ms. Sauve that her position had been abolished, the Board was not pointed to any provision requiring such notification, apart from Article 15 which deals with notice of a proposed layoff. While the Union claimed that it ought to have been given notice in accordance with this provision, the grievance concerns the propriety of the posting of the position of Equity Clerk and not the failure to follow the procedure set out in Article 15. Moreover, it is not clear that the College was required to give notice under Article 15 before it could properly post the position of Equity Clerk. Accordingly, for the reasons set out, the Board cannot conclude that the posting constituted a patent violation of the collective agreement. As well, given that the parties expressly agreed to have the Board determine the College's preliminary objection, we 11 are not prepared to accede to the Union's request to reserve on this issue and hear the grievance on its merits. While the conclusion we have reached is sufficient to dispose of the grievance, it would also appear that the issue raised, while directly affecting Ms. Sauve, cannot be said to generally affect the rights of persons in the bargaining unit. In the result, having failed to satisfy all of the criteria set out in Article 18.3.3, the grievance must be dismissed as inarbitrable. DATED AT TORONTO, this 27th day of October, 1993. Chairman "Allen S. Merritt" College Nominee "I Dissent" Union Nominee