HomeMy WebLinkAboutSmith 94-03-02 IN THE MATrER OF AN ARBITRATION ~~'~(~)
BETWEEN:
ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF
APPLIED ARTS AND TECHNOLOGY
(the "Council of Regents")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(Support Staff Employees)
(the "Union")
GRIEVANCE RE BRUCE SMITH - ALGONQUIN COLLEGE
ARBITRATOR: Michel G. Picher
APPEARING FOR
THE COLLEGE: Ann Burke - Conn.qel
Zonya Johnston - Director, Human Resources
Janet Ross - Manager, Employment
Classification
APPEARING FOR
THE UNION: Gavin Leeb - Grievance Officer
Frank Picciano - Chief Steward
INTERVENOR: Mimma Santoro
A hearing in this matter was held in Ottawa on February 23, 1994
AWARD
This arbitration concerns a grievance in relation to a work assignment made during
a reduction in staff. The grievor, Mr. Bruce Smith, grieves that Algonquin College violated
his rights under article 15 of the collective agreement following notice that his position was
redundant. The Council of Regents raises a preliminary issue with respect to the arbitrability
of the grievance. By agreement, the parties presented their submissions solely on the issue
of arbitrability, it being understood that this award would deal with that issue, with the
merits to be heard in the event that the employer's position should not succeed.
The facts pertinent to the preliminary issue are not in dispute. By letter dated March
22, 1993 Mr. Smith was advised by Mr. R. Lindale, General Manager of Computer Services
for Algonquin College, that his position in the Computer Services Department was being
declared redundant. The letter provided the 90-day layoff notification required under article
15.3.6.2. In fact, as the Department could identify no work assignment for Mr. Smith, he
was permitted to remain home during the notice, receiving full salary and benefits.
Article 15 of the collective agreement deals with the layoff and recall process. Under
the terms of article 15.2 the College gives notice to the Union of a contemplated layoff.
Pursuant to article 15.3, a Joint Committee is established to make recommendations with
respect to measures to minimize the impact on employees. In this regard article 15.3.4
provides as follows:
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15.3.4 Recommendations
It shah be the duty of the Committee to consider the matter
and to make recommendations to the President of the College
with respect to any or all of the alternatives listed below which
might be resorted to in order to prevent or minimize the
dislocation of employees:
1. Potential creation of vacancies that might be
filled by affected employees;
2. Conversion of part-time positions and/or
displacement of non-bargaining unit employees;
3. The utilization of other means, such as normal
retirements, voluntary leaves or transfers in order
to prevent or minimize the effects of the action
contemplated;
4. The improvement of employment potential for
employees affected by the provision of training or
retraining programs and job counselling;
5. Investigation of potential alternative job
opportunities that might exist for employees
affected both within and outside the College,
such as comparable employment opportunities.
It will be the duty of the Committee to make recommendations
to the President of the College within ten (10) worldng days of
the establishment of the Committee. Where the Committee is
unable to agree on any recommendations, the members
appointed by the Union and the members appointed by the
College may make separate recommendations. Where separate
recommendations are to be delivered they will be exchanged
between the appointees prior to delivery.
The collective agreement makes further provision for written notice of layoff to be
given to employees. It is found in article 15.3.6 which provides as follows:
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15.3.6.1 Written Notice of Layoff
If, after consideration by the President of the
recommendations, the College determines that
layoffs are still necessary, employees may receive
written notice of layoff after the fourteen (14)
calendar day period mentioned in Article 15.2, or
such other period as may be agreed by the Local
Union and the College.
15.3.6.2 Notice Period
No employee shall be laid off without receiving
ninety (90) calendar days written notification fro
the College except in circumstances beyond the
reasonable control of the College.
It is not disputed that the work reduction which impacted Mr. Smith led to the
establishment of a Joint Committee under the terms of article 15 of the collective
agreement. It appears that the Committee met and deliberated on a continuous basis from
and after April 1, 1993. It is not disputed that the recommendations of the Committee to
the President of the College are not binding, and that the administration may proceed to
implement the layoff process contemplated under article 15.3.6, at it deems appropriate
subject, of course, to the terms of the collective agreement, notwithstanding the substance
of the recommendations.
When it becomes necessary to lay off employees, the bumping procedure is governed
by article 15.4 of the collective agreement. In this regard article 15.4.3 provides as follows:
15.4.3 Bumping Procedure
The employee so identified shall be assigned by
the College to the first position determined in
accordance with the following sequence:
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to a vacant position in their classification
provided he/she can satisfactorily perform
the requirements of the job. If there is no
such position then;
- to a vacant position in the same payband
· provided he/she can satisfactorily perform
the requirements of the job. If there is no
such position then;
- ' to the position held by the most junior
employee within his/her same
classification provided he/she can
satisfactorily perform the requirements of
the job and he/she has greater seniority. If
there is no such position then;
to the position held by the most junior
employee within his/her same payband
provided he/she can satisfactorily perform
the requirements of the job and he/she
has greater seniority. If there is no such
position then;
- to a vacant position in the payband with a
maximum rate one lower than the
employee's own payband provided he/she
can satisfactorily perform the requirements
of the job. If there is no such position
then;
- to the position held by the most junior
employee in the payband with a maximum
rate one lower than the employee's own
payband provided he/she can satisfactorily
perform the requirements of the job and
he/she has greater seniority;
the provisions of the last two sections shall
be repeated until all paybands have been
reviewed in descending order of maximum
rate and either a vacant position or a
position held by a more junior employee
is identified and the employee affected
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can satisfactorily perform the requirements
of the job. If no such position is identified
the employee shall be laid off.
(To illustrate how this sequence operates, see the
Letter of Understandings appended to the
Collective Agreement, dated November 14, 1991.)
On May 18, 1993,' Mr. Smith' was advised, by the application of article 15.4.3, that he
was being reassigned to a clerk's position, in payband #5. This involved a reduction of
salary, as he had previously been'classified as a computer operator B in payband #7. The
notice to Mr. Smith of his reassignment reads as follows:
Dear Mr. Smith:
In accordance with Article 15.4.3 and 15.4.8 of the Support Staff
Collective Agreement you will be assigned to position #00339,
Atypical Clerk Supply, payband #5, Shipping and Receiving,
effective 14 June 1993 at a salary of $14.80 per hour. This is a
position of 40 hours per week.
Subsequent to the meeting on 14 May 1993 with Peter Stone,
you and I, the college is prepared to accommodate your request
for reduced hours of 36-1/4 hours a week, for the period 14
June 1993 to 13 August 1993. The hours or work for that period
will be between 8:30 a.m. to 4:00 p.m. Effective 16 August 1993,
when the College returns to winter hours, you will work a
regular schedule of 40 hours per week, starting at 8:00 a.m.
Under Article 15.4.4.1 you have the right to elect to be laid-off
in lieu of this reassignment but you must provide the College
written notice within five (5) calendar days.
We wish you success in this new assignment
"Zonya Johnstone"
Director, Human Resources
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Prior to receiving the above notice, Mr. Smith had filed the grievance which is the
subject of this' arbitration. The'grievance, dated May 10, 1993 is expressed as follows:
Violation of article 15.3.4, 15.3.6 and any other article which
may apply.
Under the portion of the grievance form entitled "Settlement Desired", the grievance goes
on to state:
1) Proper application of Article 15;
2) Extension of time limits to allow proper application of
article 15;
3) No layoffs until article 15 has been applied in
accordance with the collective agreement; and
4) Cease & desist this practice.
At the hearing, the Union's representative advised the arbitrator that the allegations
of violations of article 15.3.4 and 15.3.6 were withdrawn. He explained that the substance
of the grievance being advanced at the hearing is the allegation that the College failed to
properly apply the provisions of article 15.4, in that Mr. Smith was not given the opportunity
to bump into a higher rated position. He seeks to be reinstated into a position in a higher
payband which is presently held by Ms. Mimma Santoro, who received notice and appeared
at the arbitration hearing as an intervenor.
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Council of Regents submits that the grievance is inarbitrable, as it relates to any
alleged violation of article 15;4 of the collective-agreement. She draws the arbitrator's
attention to the following provisions of the collective agreement in support of her motion
for dismissal:
18.1.4 Grievance
"Grievance" means a complaint in writing arising
from the interpretation, application,
administration or alleged contravention of this
Agreement.
18-2.1 Time
If the grievor fails to act within the time limits set
out at any Complaint or Grievance Step, the
grievance will be considered abandoned.
18.6.1 Grievances
A complaint shall be taken up as a grievance in
the following manner and sequence provided it is
presented within fifteen (15) days after the
circumstances giving rise to the complaint have
occurred, or have come or ought reasonably to
have come to the attention of the employee.
Counsel for the employer stresses that the grievance was filed on May 10, 1993, some
eight days before the reassignment of Mr. Smith to the clerk's position in payband #5. She
argues that the grievance cannot be construed as a claim in relation to that assignment, as
it had not been made at the time the grievance was fried. She submits that the deliberations
of the Joint Committee, which are the subject of article 15.3.4, and were ongoing at the time
of the grievance, bear no relation to the reassignment of an employee under article 15.4 of
the collective agreement. Simply put, her argument is that any grievance by Mr. Smith
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purporting to deal with his reassignment was premature as of May 10, 1993. Counsel submits
that if he wished to take issue with the reassignment of which he received notice on May
18, 1993, he was obligated to do so within 15 days of that date, with sufficient specificity in
the grievance form so as to identify article 15.4.3 as having been violated.
Counsel stresses that the grievance document filed on May 10, 1993 does not meet
the requirements of form or time contemplated in article 18.6.1.1 of the collective
agreement. Firstly, as noted above, she submits that Mr. Smith could not grieve any decision
as to his reassignment until such a decision was taken, an event which did not occur until
May 18, 1993. Secondly, she submits that any grievance against that action must be timely,
in that it must be brought within 15 days after May 18, 1993, and that any grievance form
filed in relation to it must be specific, in that it must cite article 15.4.3 as having been
violated. Counsel submits that, in essence, the Union seeks to convert the grievance on May
10, 1993 in relation to the Committee process, into a timely grievance raising an entirely
different matter, namely the grievor's reassignment of May 18, 1993. She submits that the
Union cannot do so, and having failed to file a grievance within 15 days of the reassignment
must be found to be out of time for the purposes of arguing a violation of article 15.4.3 on
behalf of Mr. Smith. Pointing to the provisions of article 18.6.1.1, she emphasizes that the
time limits in the collective agreement are mandatory, and that under the statute which
governs the collective agreement there is no jurisdiction in the arbitrator to relieve against
a failure to observe the time limits. Noting article 18.7.5 which prohibits the modification
or amendment of any part of the terms of the collective agreement by a board of arbitration,
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counsel submits that the grievance must be found to be untimely, insofar as it relates to the
grievor's reassi~tmment under article 15.4.3 of the collective agreement.
In response the Union's representative points to the words "proper application of
article 15" under the "settlement desired" portion of the grievance form. He submits that in
fact the grievor should be taken as having protested, as of May 10, 1993, the non-assignment
to a position for which he was qualified, and which his seniority should have obtained for
him. The Union's representative further maintains that the provisions of article 18 of the
collective agreement should not be construed so narrowly as to preclude access to
arbitration for the vindication of an employee's rights, particularly when those fights relate
to the application of seniority. In essence, the Union representative submits that it was open,
on May 10, 1993, for Mr. Smith to'grieve the "non-decision" of the Joint Committee to make
a recommendation, or of the President to make a decision, in respect of his proper
reassignment in conformity with the terms of the collective agreement.
The arbitrator has substantial difficulty with the position advanced by the Union.
Firstly, it does not appear disputed that a decision on reassignment is made only after the
Joint Committee has' deliberated and the President of the College has considered its
recommendations. In that context, to the extent that no decision was yet taken in respect
of' Mr. Smith as of May 10,' 1993, it is difficult to see how any right to grieve reassignment
could be said to have matured at that point. As matters developed, he was reassigned to a
position in payband #5 on May 18, 1993. He could, however, been reassigned othenvise,
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perhaps to a position in the same payband as he previously had held, in which event he
would have had little or no basis to grieve. Most fundamentally, no action had yet been
taken at the time that he filed his grievance, and the decision-making process was still
ongoing.
To the extent that the grievance would purport to deal with the failure to apply the
terms of article 15.4.3 of the collective agreement to the grievor, I do not see how that
complaint can be said to have arisen prior to May 18, 1993. It was, of course, open to the
grievor to protest his reassignment as of that date, and to file a grievance accordingly within
15 days. He did not do so, however, and the attempt to convert his initial grievance in
relation to articles 15.3.4 and 15.3.6 must, in the circumstances, be characterized as an
improper expansion of the grievance to encompass an entirely different complaint.
It appears to the arbitrator that the collective agreement is relatively clear as its
provisions relate to the timeliness and specificity of grievances. A reading of article 18.6.1
of the collective agreement, as well as the provisions relating to Step 1 of the grievance
procedure, leave little doubt that an employee wishing to grieve a violation of article 15.4.3
of the collective agreement in relation to his or her reassignment must do so within 15 days
of that event, and in support of the grievance must file a grievance document "... sufficiently
specific to identify the 'alleged violation(s) of the Collective Agreement". For the reasons
touched upon above, the grievance form before the arbitrator in the case at hand is not
sufficient to satisfy the barest elements of those requirements. Firstly, no grievance was filed
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within 15 days of the grievor's reassignment and, secondly, the earlier grievance form, which
is the basis for the arbitrator's jurisdiction, makes no reference whatsoever to the grievor's
reassignment or the alleged violation of article 15.4.3 of the collective agreement.
In the circumstances, the arbitrator is bound by the terms of 18.2.1 of the collective
agreement. I must find that the grievor failed to act within the time limits set out in relation
to a complaint relating to his reassignment effective May 18, 1993, and that there is no
timely 'grievance before me in relation to that action' or decision by the Employer. The
grievance which is before the arbitrator relates to two entirely unrelated provisions of the
collective agreement, the substance of which, as agreed, has been withdrawn. While the
arbitrator appreciates the submissions of the Union's representative with respect to the
importance of seniority rights, there is no basis upon which the mandatory time limits of the
collective agreement can be waived based on the nature of the rights being pleaded.
In summary, I am satisfied that the grievance form before me cannot be said to be
in relation to the reassignment of Mr. Smith, made effective May 18, 1993, some 10 days
after the grievance form was filed. No timely or specific grievance was filed in relation to
the grievor's reassignment, and for all of the reasons related above, I must find that the
grievance is inarbitrable and must hereby be dismissed.
DATED at Toronto this 2nd day of March, 1994.
Michel G. Picher - Arbitrator