HomeMy WebLinkAboutUnion 96-12-18IN T~ ~/,AVTEU or AN ~m~o~ C
BET~EN: ONT~O CO~C~ OF ~GENTS FOR COLLEGES
OF ~PL~D ~TS ~ ~C~OLOGY
CO~STOGA COLLEGE
AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(FOR SUPPORT STAFF EMPLOYEES)
AND IN THE MATTER OF UNION (SUPPORT) GRIEVANCE #95A050.
O.B. SHIME, Q.C. cHAIRPERSON
H.J. COOK NOMINEE for the College
M. SULLIVAN NOMINEE for the Union
APPEARANCES:
D. BRENT LABORD COUNSEL, and
others for the College
GAVIN LEEB REPRESENTATIVE, and
others for the Union
A hearing in these matters was held on October 16th, 1996 at Cambridge, 'Ontado
AWARD
In this matter the Union complains that the College was in violation of Appendix D of the
Collective Agreement because it did not forward or deduct dues from the incumbent in the
replacement position of Atypical Payband 9 in the Department of College Planning and Curriculum.
The College denied the grievance on the basis that the incumbent was not regularly employed for
twenty-four hours or less and therefore was not covered by the collective agreement. The COllege
also maintained that the grievance was inarbitrable.
There is very little dispute about the facts. On or about October 17, 1994, Karen Vanderkruk,
a bargaining unit employee took maternity leave, which was to mn until June 2, 1995. During her
leave, the College employed Rita Campigotto to perform some, but not all of the duties which had
been performed by Karen Vanderkruk. Ms. Campigotto was employed for fifteen hours per week
for most weeks. In addition Ms. Campigotto, fi.om time to time, performed work in the Human
Resources Department. There is no claim that the work performed in the Human Resources
Department was bargaining unit work.
When Karen Vanderkruk took her maternity leave, the College determined that a number of
duties that she had performed would not be done by the person who replaced her. More particularly,
the College distributed the duties and responsibilities of the PLN computer system, as well as the'
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required computer support, to other full-time employees, which left secretarial and related duties, as
well as some duties related to international education. The international education duties and
responsibilities were cyclical and the inference from the evidence is that they were minimal during the
relevant period.
As a result of this reorganization of the work, Ms. Campigotto was left with only fifteen
hours of bargaining unit work. The Union does not represent persons who are employed for less
than 24 hours.
The relevant provisions of the collective agreement are as follows:
1.2 Staffing Considerations
Recognizing that the College reserves the fight as provided in Article 3, to
determine the number and composition of full-time, part-time, and otherwise
excluded positions, and to determine the work assignments that are
appropriate in each case, the College agrees to endeavour to give preference
to full-time over part-time assignments, and to convert part-time to full-time
assignments where feasible, subject to such operational requirements as may
be appropriate.
3. MANAGEMENT FUNCTIONS
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function of the
Colleges to:
generally to manage the College and without restricting the
generality of the foregoing, the right to plan, direct and
control operations, facilities, programs, courses, systems and
procedures, direct its personnel, determine complement,
organization, methods and the number, location and
r
classification of personnel required from time to time, the
number and location of campuses and facilities, services to be
performed, the scheduling of assignments and work, the
extension, limitation, curtailment or cessation of operations
and all other fights and responsibilities not specifically
modified elsewhere in this Agreement.
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 also 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.
APPENDIX D
TEMPORARY EMPLOYEES
1. The terms of this Appendix apply to persons employed on a casual or
temporary basis to replace bargaining unit employees absent due to vacation,
sick leave or leaves of absence. No other provision of the Collective
Agreement shall apply to such persons unless otherwise stated in this
Appendix. --
2. The rate to be paid to such an employee shall be the appropriate rate
applicable to the classification of the replaced employee, subject to
progression steps applicable to the replacing employee, where appropriate.
3. The replacing employee shall be subject to the deduction and remittance of
Union dues, as provided in Article 5.4 of the Agreement.
4. The Union shall be notified at the commencement of employment, and upon
expiry of the term of employment.
5. In addition to the hourly rate of pay, the employee shall receive an additional
five per cent (5%) in lieu of all fringe benefits, including vacation and holiday
pay.
6. The employee may be released by the College before the termination date of
any term employment, for replacement need changes or operational
requirements.
7. Employees covered by this Appendix are entitled to utilize the grievance
procedure to enforce the rights contained in this Appendix.
The Union argues that Appendix D governs the circumstances of this case, and since Rita
Campigotto replaced Karen Vanderkruk, Union dues should have been remitted to the Union
because Rita Campigotto was employed doing bargaining unit work. The Union also submits that
the Employer's treatment ofRita Campigotto was inconsistent and that during the relevant period
it remitted Union dues on some occasions. The Union also submits that it is appropriate to grieve
the wage rate as pan of a Union grievance since the Union dues are paid as a percentage of the wage
rate and accordingly a proper determination of the wage rate is necessary in order to calculate the
Union dues.
The Employer submits that the Union has not demonstrated that the essence of the work in
Payband 9 continued. The Employer also argues, that employees who work less than 24 hours per
week are not covered by the Collective Agreement, and accordingly, the wage rates in the
Agreement do not apply. The Employer further argues that while a wage calculation may be made
for the purpose of computing Union dues that there is no jurisdiction to order a wage payment in the
context of a Union grievance.
The Employer also maintains that Appendix D does not apply to this situation, as Rita
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Campigotto was not within the bargaining unit and she did not replace Karen Vanderkruk but was
only assigned some of her duties. The Employer further maintains there are no prohibitions in the
Collective Agreement which prevent assigning duties to persons outside the bargaining unit. Finally,
the Employer submits that Section 17.3 of the Collective Agreement requires that temporary
vacancies be posted fi.the Employer determines that there is a vacancy and that was not the situation
in this case.
The Employer also relied on a number of cases which it maintains support its position. In
Caressant Care Nursing Home of Canada Limited and Christian Labour Association of Canada,
unreported, March 15, 1983 (E.E. Palmer, Q.C.), the Employer, for financial reasons, laid offfull-
time employees and transferred their work to part-time employees in the same union. The majority
of the Board in dismissing the grievance concluded that part-timers were not excluded from doing
the work of persons covered by the Collective Agreement and that contracting out was a specific
fight of the employer. The majority also concluded that vacancies only exist when management so
declares. Similarly in Extra Foods (Division of Westfair Foods Ltd.) and United Food and
Commercial Workers' Union, Local 175, unreported, December 21, 1990 (G.E. Phillips), the
arbitrator concluded that under the terms of the Collective Agreement, the Employer was not
precluded from reorganizing the workfome by shitting duties previously performed by full-time staff
to part-time staff.
In Niagara College of Applied Arts and Technology and O.P.S.E.U., unreported, April 28,
1995 (J.H, Devlin) following the retirement of an employee, the College determined that some of his
duties would not be performed and the remaining duties were either contracted out or reassigned to
other employees in a manner which did not violate the Collective Agreement. The Board found that
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it was for the College to decide whether it requires the work to be done and that there was no
provision in the agreement which would preclude the reassignment of duties which occurred in this
case. This decision is particularly relevant since it involves the same Collective Agreement that we
are called upon to interpret.
And finally, in the Riverdale Hospital and Canadian Union of Publica Employees, Local 79,
unreported, January 23, 1985 (G.W. Adams, Q.C.), the hospital hired two part-time employees to
replace a full-time switchboard operator who had resigned. In argument, the hospital submitted, as
in this case, that the Collective Agreement did not apply to the part-time employees who worked less
than 24 hours per week. The majority of the Board concluded that the employer's motive in
reorganizing the switchboard position was "economic and not one of attempting to escape the ambit
of the Collective Agreement."
In sum, the cases indicate that the Employer can for legitimate business reasons organize its
workf'orce by creating part-time positions from full-time positions, which fall outside the bargaining
units, provided that it is done in good faith and is not an attempt to erode the bargaining unit. We
agree with the views expressed in Re Electric Reduction Co. of Canada Ltd. and Office and
Professional Employees International Union (1973), 3 L.A.C. (2d) 87 (S. Ham) referred to in The
Riverdale Hospital case, where the arbitrator stated:
"It is tree that this reasoning could lead to a reductio ad absurdum whereby the taking
away of relatively unimportant portions of a job content and assigning them to other
classifications would not at any stage constitute a violation of the agreement (unless,
of course, the agreement contained a specific and clear prohibition to this effect), but
taken together, the series of acts could deprive the unit of a whole job or substantially
a whole job which was scattered in bits and pieces throughout another unit or among
non-unit personnel. Nothing prevents an arbitration board from looking at a series
of such manoeuvres as a whole and protecting the Union in its legitimate concern
against an abusive erosion of the unit and arbitral jurisprudence is particularly flexible
enough to permit an investigation of the employer% good faith in his purported
exercise of his management rights. It would be equally absurd to suggest that because
a course of action carried to extremes could be abused, one must prevent a legitimate
exercise of the same right."
At~er considering the submissions of the parties, it is our view, that the Employer's
elimination of some of the work and reassignment of other portions of the work was for a temporary
period only, while Karen Vanderkruk was on maternity leave, and was done for legitimate reasons;
this was not an attempt to subvert the bargaining unit. These were actions that in the circumstances
were appropriate, pursuant to the Employer's right under Article 3.1 "to manage the College...
direct and control operations, direct the personnel.., determine complement organization, methods
and the number, location and classification of personnel required from time to time ... services to
be performed, the scheduling of assignments and work."
Since the assignment of work, in this way, was not prohibited by the Collective Agreement
and was, indeed, sanctioned by the Collective Agreement, it follows that when Ms. Campigotto
performed work for less than 24 hours per week she was not covered by the Collective Agreement,
particularly Appendix D, and there was no need to remit Union dues on her behalf. We further find
that the Employer's decision to pay Union dues, although not required, when the sum total of Ms.
Campigotto's work in different areas reached 24 hours per Week, does not require it to pay dues
when the work performed was 15 hours per week or less. Ms. Campigotto was not a member of the
bargaining unit at the relevant times and accordingly, not covered by the collective agreement. That
the Employer did make a gratuitous payment of union dues on her behalf when she worked for 24
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hours per week on some occasions, albeit inconsistent, cannot, as a matter of law, bring her within
the scope of the bargaining unit in other situations particularly where there is no requirement that the
Employer treat her as a bargaining unit employee.
For all these reasons the grievance is dismissed.
DATED AT TORONTO THIS I~ DAY OF DECEMBER, 1995.
OWE~B. SHIME, Q.C., Chairperson
I CONCUR. "H.J. COOK"
H.J. COOK, Nominee for the College
I CONCUR "M. SULLIVAN"
M. SULLIVAN, Nominee for the Union