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HomeMy WebLinkAboutUnion 94-09-16IN T~E MATTER OF AN ARBITRATION L. ~ BETWEEN: Cambrian College, College, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair David Cameletti, College Nominee John D. McManus, Union Nominee APPEARANCES: For the Union: Heather Gibbs, Counsel For the College: Stephen Shamie, Counsel Robert C. Hurly, Director of Personnel Hearing held in Sudbury, Ontario, on October 18, 1993, and February 3, 1994. ARBITRAL AWARD This is a Union grievance relating to the filling of a Clerk General B position in the Physical Resources Department. The Union claims that the College has violated the collective agreement either by failing to convert this part-time position into a full- time one or by failing to follow through on the staffing of the position as a full-time one. The facts are not in dispute. The parties filed an Agreed Statement, which reads as follows: 1. The Union is grieving that the College post and fill the Clerk General B position as a full-time position in the Physical Resources Department. 2. The Clerk General B position is now being officially staffed on a part-time basis, and has been since either 1989 or 1990. Prior to that it was staffed on a full-time basis for approximately 10 years. 3. The College allocated funds and posted for a Clerk General B position on a full-time basis on October 6, 1992. 4. The College offered to the Union to place the part- time employee then working in the position, Ms. A. Lebel, directly into the Clerk B, full-time position. The Union requested that the position be posted. 5. That posting was subsequently withdrawn in late October 1992, before interviews had taken place. The College says that this decision was taken on account of severe financial and budgetary constraints placed upon the College; the Union does not accept this. 6. The College admits that all the job duties listed on the posting of October 6, 1992, continue to be done - 2 - in the Physical Resources Department by the part-time Clerk B General and others, with the exception of inputting parking and locker data, which is performed whenever time is available. 7. "Lost and Found" administration duties and Trades Building parking and locker sales and administration are also now part of the duties of Clerk B General position. 8. From mid-August to mid-September, Clerk B General works full-time for College start-up. 9. No complaints or grievances have been filed by other members of the Physical Resources Department with respect to the performance of the duties listed above. 10. The issue before this Board is whether the College had the right to withdraw the posting. The only witness to testify was Mr. David Jones, the College's Vice-President, Finance and Administration, who described the financial and budgetary considerations that, according to the College, led to and justified the decision to withdraw the posting. The relevant provisions of the collective agreement are these: 1. RECOGNITION 1.1 Exclusive Bargaining Agent The Union is reCognized as the exclusive bargaining agent for all Support Staff employees of the Colleges, save and except: - persons regularly employed for twenty-four (24) hours per week or less and persons employed temporarily during the College vacation periods; - 3 - 1.2 Staffing Considerations Recognizing that the College reserves the right 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 restric- ting 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 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 rights and responsibilities not specifically modified elsewhere in this Agreement. 15. LAYOFF/RECALL PROCESS eeo 15.4 Layoff Procedure When a College decides that circumstances require a reduction in personnel in any position within a classifi- cation the following provisions shall apply: - 4 - 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... II The Union has presented two lines of argument in support of the grievance. The first is that, once a notice of a vacancy has been posted in accordance with Article 17.1 of the collective agreement, the College cannot withdraw the posting unless the job of work is no longer available. A change in an employer's economic circum- stances between the time of posting and the time of withdrawal does not justify the withdrawal. An employer which has posted a notice of vacancy and then finds it can no 1.onger afford to staff it is required to go through with the staffing action, even though it may thereby be faced with the need to reassign or lay off personnel subsequently. Ms. Gibbs, on behalf of the Union, referred us to the following authorities: Re Air Canada and Canadian Air Line_~~ ees' Association (1975), 8 L.A.C. (2d) 239 (Brandt); Re Pilkington Brothers Canada Ltd. and United Glass and Ceramic Workers (1976), 13 L.A.C. (2d) 287 (Burkett); Re Caressant Care Nursin~ Ho~e__, Listowel and United Food & Commercial Workers, Local 175 (1988), - 5 - 3 L.A.C. (4th) (T.A.B. Jolliffe); Re International Nickel Co. of Canada Ltd. and United Steelworkers (1974), 6 L.A.C. (2d) 104 (Rayner); Re Ma~lewood Nursin~ Home Ltd., Tilso~3_~le Manor) and London & District Service Workers' Union, Local 200 (1989), 9 L.A.C. (4th) 115 (Hunter); and Re Campbellford Memorial Hospital and Canadian Union of Public_~~ees, Local 2247 (1987), 29 L.A.C. (3d) 90 (Draper). The Union relies, secondly, on Article 1.2 of the agreement, the purpose of which is to prefer full-time positions over part-time ones "subject to such operational requirements as may be appropriate". It can generally be assumed, according to Ms. Gibbs, that part-time positions are less expensive for a college than full-time ones, since the part-time ones are not subject to the collective agreement. The College should not be allowed to extricate itself from its obligation under Article 1.2 by trying to equate cost considerations with "operational requirements". On the meaning of the term "operational requirements", counsel relied on the French text of the collective agreement and on various other provisions of the agreement containing similar language. Counsel also cited Re Fanshawe Colleqe and Ontario Public Service Em~f_~ Union (unreported award of arbitrator H.D. Brown, dated January 1987), Re Fanshawe Colle~__a_n_d_. Ontario Public Service Em~_o~ees Union (unreported award of arbitrator Samuels, dated March 19, - 6 - 1986), and Re Les Exp~diteurs Gen-Auto ~bec Lt~e and Teamsters Union, Local 106 (1991), 23 L.A.C. (4th) 414 (Frumkin). Mr. Shamie, on behalf of the College, argued that Article 1.2 of the collective agreement is a specific clause dealing with the issue of converting part-time positions into full-time ones, and recourse should be had to this specific clause rather than to more general provisions of the agreement that might be applicable. Article 1.2 had to be read in conjunction with Article 3.1, which lists the College's powers in the area of determining its comple- ment. The obligation contained in Article 1.2 was, in any event, a qualified one, since, in addition to being subject to operational requirements, the giving of preference to full-time positions over part-time ones was something the College had to "endeavour" to do "where feasible". Although the term "operational requirements" was not defined in the collective agreement or discussed in the case- law, budgetary and financial considerations were such an integral part of the operation of the College, that the term had to be interpreted as including these considerations. Mr. Shamie referred to Re Niaqara Colleqe and Ontario Public Service Em~l_o_y_ges Union (unreported award of arbitrator P. Picher, dated January 16, 1989), and ~_C_o_n_e_s_t_o_~a Colleqe and Ontario Public Service ~~3~s Union (unreported award of arbitrator Samuels, dated November 14, 1988). - 7 - As for the case-law relied on by the Union, Mr. Shamie argued that, as noted by the arbitrator in Re Air Canada, ~R~, at page 246, an employer's response to financial or budgetary constraints "must be viewed within the framework of what is permissible under the collective agreement". Accordingly, the Union's claim to have the posted position staffed had to be viewed in the light of Article 1.2. III Article 1.2 and Article 17.1 are related to each other in the sense that both impact on the College's freedom to staff its positions. However, in legal terms, they are quite independent of each other. They impose quite distinct obligations on the College. We do not understand how the obligation the College has contracted in Article 17.1 might become, in some way, subject to the "opera- tional requirements" referred to in Article 1.2, or to the "feasi- bility'' limitation in that provision. The fact that the Union has coupled in one grievance a claim that Article 1.2 has been violated with a claim that Article 17.1 has been violated cannot lead, in our view, to the transferring to Article 17.1 of the limitations found in Article 1.2. In short, we fail to understand the College's argument that the case-law cited by the Union (on an employer's obligation to fill a vacancy that has been posted) is in some way distinguishable by reference to Article 1.2. - 8 - In this case, there is no dispute as to whether a vacancy existed. The posting itself constitutes strong evidence of the existence of a vacancy, and the College has acknowledged, in the Agreed Statement of Facts, that, essentially, all the duties described in the job posting are still performed within the Physical Resources Department. It is therefore not necessary for us to express any views on whether, under this collective agree- ment, the decision to declare a vacancy and to post notice of it is in any sense discretionary. The fact of the matter is that the College stated that a vacancy existed at the time of posting, it posted a notice of vacancy, and it does not contend that the vacancy has, in some way, disappeared. As we read the case-law cited by the Union, when an employer posts notice of a vacancy pursuant to a provision in the collective agreement, it is, as a general proposition, required to carry the staffing of the position through to its logical conclu- sion. In particular, the emergence of financial constraints after the posting does not relieve the employer from this requirement: see ~, Re Air Canada, ~R~- The cases have suggested that the appropriate course of action for an employer whose financial situation deteriorates between the date of posting and the date of appointment is to use other powers open to it, such as a staff reduction through layoff, to respond to the financial pressures it faces: ibid., at page 247. We have no reason to believe that the - 9 - principles expounded in this case-law are not fully applicable to the present case. In our view, the case-law leads inexorably to the conclusion that the College violated Article 17.1 by cancelling the posting for the position in question. In view of this conclusion, it is not necessary for us to rule on whether the College was obliged by Article 1.2 to convert this position from a part-time to a full-time one. The fact is that the College ~ convert it and, as we have held, is now obliged to staff it. The grievance must therefore be allowed. IV As regards remedy, we invited written submissions from counsel after the hearing as it was obvious to us, in the course of our deliberations, that we had not received at the hearing an adequate statement of the parties' positions on this matter. The Union is requesting the board to order that the vacant position be re-posted, that the successful applicant be fully reimbursed for lost wages and benefits, and that the College compensate the Union for lost union dues. - 10 - The College does not dispute that these might be appro- priate remedies under a different collective agreement, but it takes the view that, as a result of restrictions in this collective agreement on policy grievances, the board can do no more than issue a declaration. The provision of the agreement relied on by the College is Article 18.3.3, which reads 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, administra- tion 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... Most of the argument we received from Mr. Shamie on this matter related to three earlier arbitrations dealing with the permissible scope of union grievances under this collective agreement (or under the agreement for the academic bargaining unit, which is similarly drafted). The earlier awards, all unreported, are ~_A~_~9_n_guin College and Ontario Public Service EmR~3~ees Union (award of arbitrator Kates, dated November 8, 1985), Re Fanshawe Colle~ and Ontario Public Service Employees Union (award of - 11 - arbitrator Burkett, dated March 29, 1989) and Re Fanshawe Colle~ and Ontario Public Service E~R~~_Union (award of arbitrator Burkett, dated February 27, 1991). In the view we take of this matter, it is not necessary for us to recite in detail the submissions we received. The awards cited by counsel are all, in our view, distinguishable. In all of them, the boards of arbitration proceeded on the assumption that it would have been open to individual employees to present griev- ances on the issues in dispute and examined the circumstances in which a union grievance might also be receivable. In the present case, however, we have two reasons for questioning whether any employee could have presented a grievance on the failure to staff this position. Firstly, we are not satisfied that any bargaining unit employees applied for the disputed position. Under the terms of Article 18.3.3 of the collective agreement, a policy grievance is only barred if "an employee is personally entitled to grieve" on the matter. Although Mr. Shamie suggested in his written submis- sions that at least one bargaining unit member also applied for this position, we received no evidence of that. We cannot therefore hold, as Mr. Shamie has suggested, that the policy grievance was not receivable since a bargaining unit employee was personally entitled to grieve. - 12 - Secondly, we doubt whether an individual grievance could have been lodged in this case even if a bargaining unit member had applied for the position. We have reviewed the terms of the collective agreement dealing with individual grievances, and it is by no means clear to us that the agreement authorizes individual grievances on a matter such as the present. Article 18 of the agreement, entitled "Complaints/grievances", defines the following types of grievances: Group Grievances (Article 18.3.1), Multi- College Issues (Article 18.3.2), Union Grievances (Article 18.3.3), Classification Grievances (Article 18.4), New Classifications (Article 18.5), Working Conditions and Terms of Employment (Article 18.6) and Grievances concerning Dismissal and Suspension (Article 18.7). Article 18.6.1.4 also refers to grievances concerning an "unsuccessful competition". It is obvious to us that the present grievance does not come within Article 18.6.1.4: no one is complaining here about an "unsuccessful competition", but about an aborted competition. Although Article 18.6 is entitled "Working Conditions and Terms of Employment", this expression is not defined anywhere in the agreement. We do not doubt for a moment that a broad and liberal interpretation should be placed on this expres- sion. However, in our view, a complaint about the failure to carry a competition through to its logical conclusion is difficult to fit within the rubric of a grievance concerning working conditions and terms of employment. - 13 - We are therefore not satisfied that any employee could have launched a grievance under this agreement to challenge the College's failure to staff the position. Since the College is the party alleging that our remedial authority is limited by reason of the availability of remedies under an individual grievance, the onus is on the College to establish this assertion. In our view, it has failed to do so. It follows that there is no bar created by Article 18.3.3 to the relief requested by the Union. We should add that we have also considered, in relation to this issue, section 46 (1) of the Colleqes Collective Bar~ainin~ ~S~, RSO 1990, c. C.15, which reads as follows: Every agreement shall provide~fr the final and binding settlement by arbitration of all differences between an employer and the employee organization arising from the interpretation, application, administration or alleged contravention of the agreement including any question as to whether a matter is arbitrable. In light of this provision, we have serious doubts whether it is open to the parties to provide, as they have purported to do in Article 18.3.3 of the agreement, that certain types of differences between them cannot be referred to arbitration unless individual employees have made them the subject of grievances. A collective agreement cannot validly preclude recourse to arbitration for certain categories of grievances (see, ~, Toronto H~dro-Electric ~stem v. Canadian Union of Public_~_~_~ees, Local 1 (1980), 30 - 14 - O.R. (2d) 64 (C.A.)). Nor can it prevent a bargaining agent from taking grievances to arbitration (see, ~, Re Oil Workers, Local 16-341 & Rinshed Mason Co. (1958), 8 L.A.C. 293 (Hanrahan) and United Steel CorRz v. United Steelworkers of America, Local 2766, [1958] O.W.N. 105 (H.C.J.). However, since we have concluded that the particular dispute in this case could not have been the subject of an individual's grievance under the collective agreement, and in the absence of argument on the point, it is not necessary for us to express any firm opinion on the possible effect of section 46 (1) of the Act. Having found that this is a proper union grievance and one that could not have been submitted as an individual grievance, we must go on to consider what remedy is appropriate to rectify the College's breach. We note that we were not specifically asked to order the College to resume the posting process started in October 1992. It would be more appropriate, given the passage of time, simply to order the College to re-post the position, and we so order. The successful candidate (if employed by the College, whether or not in this bargaining unit, since at least October 1992) shall be appointed to the position retroactively to that date, and his or her pay and benefits shall be recalculated accordingly. - 15 - We turn finally to the Union's request for an order requiring the College to reimburse it for lost dues. The College has replied that it would be entirely speculative for us to make such an award. It is possible, the College argues, that no candi- date would have been successful in the competition, just as it is possible that the position might have been filled by another bargaining unit member who would not have been replaced in his or her former position. In either of these situations, there will have been no loss of union dues. There is obvious merit to these observations by the College. We cannot say for sure at this stage whether the Union has lost dues as a result of the College's breach of the agreement, and we could not order compensation for the Union in the absence of proof that a loss has resulted from a breach of the collective agreement. We have considered the possibility of retaining juris- diction on this aspect of the case so as to order compensation if, as events unfold, it becomes apparent that a loss has been suffered, but we do not consider it would be appropriate to retain jurisdiction in this way. The request for a compensation order in favour of the Union for lost dues is, in our view, premature, and, on that basis, must be dismissed. - 16 - AS requested, we shall remain seized for the purpose of resolving any disputes concerning the implementation of this award. DATED at Thornhill, Ontario, this 16th day of September 1994. ~lichael Bendel, Chair · -e~n~ur~I dissent David Cameletti, (Dissent attached) College Nominee John D. McManus, Union Nominee tN THE MA'I-I'ER OF AN ARBITRATION BETWEEN: CAMg, RIAN COLLEGE OF APPLIED.ARTS & TECHNOLOGY (Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION SUPPORT STAFF LOCAL 656 (Union) DISSENT OF THE COLLEGE NOMINEE = I have carefully reviewed the.declslon of the Chairman with respect to both the merits and the remedy of the award and, with greatest respect, am compelled to dissent, I might add that I am in agreement with the Chairman's recitation of the facts as well as his finding that there should be nc.award for reimbursement to the Union of;lost dues, However, my dissent relates to. the issue of the finding that there 'has. been- a violation of the grievance as well as the findings by the Chairman that the College should be ordered to re-post the grievance and compensate any successful candidate for 'being appointed to the position retroactively and recalculate his or her pay or bonefi'ts accordingly, Considerations On the' Rndin~ of the' Merits W~th respect to issue of motifs of case, the Chairman in his -2- reasoning comes to the conclusion that Article 1.2 is quite independent of the obligation in Article 1 7.1 to post vacancies. No previous interpretations of Article 1.2 were presented at this beefing and, as such, it ia my re~pectCul view that the Board of Arbitration in interpreting this provision should be careful to give it the full intent and meaning which the parties in including it in the contract wiCed it to have. The opening sentence of Article 1.2 makes reference to the right of the College 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 article further states with respect to this right that "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 operation or recluirement.~ ~.~ may be appropriate." A careful reading of the first part of the clause leads to the oonclu$ion that this is sufficiently specific enough to embrace the College's decision-making authority with respect to. the posting of vacancies, Sfmllarly, with respect to the obligation placed on the College to "endeavour to give preference to fuil-tfme over part-time assignments, and to convert part-time to full-time assignments where feasible" my view is that the intention of the parties in entering into this clause was to make reference to the College's entire deciSion-making authority on staffing to this -3- obligation subject to the proviso that it is subject to the qualifications spelled out therein. Clearly, the posting of a vacancy falls within the scope of these provisions. Accordingly, the conclusion which emerges in my view i8 that Article 1.2 is intended to apply to all of the College's exercise of its authority to make decisions on staffing, The obligation in Article 1,2 is that the College is to endeavour to give preference to full-time over part-time assignments and to convert part-time to full-time assignments where feasible but this is always 'subject to such operation or requirements a~ may be appropriate." Thus, any exercise of the College's staffing decision-making power is subject to the operational requirements of the College. Mr, Shamie's argument was in my view, Persuasive that budgetary and financial considerations are to be considered an essential part of the operational requirements of the College. His reasoning was adequatelV buttr~,~sed by his reference to unreported decisions of Re. Niagara Coil.ego and Ontario _Pub. I.Lc Service .Emp. l.oyee_s Union, (unreported decision of Arbitrator Para Picher dated January 16, 1989), and Re Conasto.~a College and Ontario Public Se._rv_Lce Ern[~loye.es Union, (unreported decision of Arbitrator Joseph Samuels dated November 14:, 19~). Submissio~ With Respect to the Issue ef Remedy The Chairman has nevertheless found in favour of the Union and has come to the determination that the College is ordered to re-post the -4~ position and the successful candidate shall be appointed to the position retroactively to this date and his or her pay or benefits are to be recalculated accordingly. The Chairman has not accepted one College argument that the Union is not permitted to gain through a policy grievance what an individual could be awarded through an individual grievance. He has outl'ined his reasoning at length, and I do not propose to deal with this. My intention is to deal with the alternative College argument outlined at length on page 4 of Mr. Shamie's written submissions of June 24, 1994 to the effect that "it is the College's position that the prJnciplo of tho law of equity should':. be used not to allow individual employees:a windfall in the form of payment for time not worked." I note that the Chairman in his award was quite clear that he "was not satisfied that any bargaining unit employees applied for the disputed position. He also point.~ out that we received nc) evidence nf any bargaining unit employee applying for the position as well. On the basis of this, it is clear that the position was not posted, no one actually applied for the job, and no work was actually performed in the posted position. Thus, if the College'does not have the benefit of anyone having worked in the job, then.the discretion of this Board of Arbitration should clearly be exercised to rule against any awarding for any retroactive compensat'Jon to a successful applicant who would not have worked and provide any benefit to the College. This is not a case where the College has received the benefit of work performed by an applicant to the posted position and is seeking to deny that applicant the negotiated benefits under the collective agreement. Rather, this is simply a case where a posting was not filled. One of the cases cited by the College is an unreported decision of Arbitrator Kevin Burkett involving Fanshawe Colle.qe of Ap~i~ Arts and Technology and Ontario Public.$_exvice Emolqyees.Un. Lo_n, dated March 29, 1989. in this decision, the l~0ard of Arbitration upheld a policy grievance in- which the Union sought'to have the standard work Icad forms (SWF'$)of the affected teachers filing the grievance altered to reflect the requirements of Article 4.01 (3) of the collective agreement then in force to have the 30 minute blocks that were assigned to them adjusted to 60 minute blocks, ............... Ti're Board of Arbitration found that any assignment of teaching contact hours in blocks of less than 50 minutes plus a 10 minute break was in violation of the collective agreement. In terms of the issue of remedy, the Union in that case, sought. a declaration for the Coliege to round out the fractionized teaching contact hours upwards and an order for. compensation based on the upwardly adjusted teaching contact hours. On page 1,6 of the award in paragraph 11, the Board of Arbitration noted that the .alternative argument of the College was that "to award anything more than declaratory relief in this matter would be to provide the affected employees with a windfall in the -6- form of payment for time not worked.', The Board of Arbitration was of the view that although "we are dismayed by the College's refusal to apply a threshold standard, it is clearly defined in the collective agreement in a prior arbit~'ation award, we are not about to use our remedial authority to punish the College or to cause a windfall to go to the affected teachers as would be the result if we were to award them the compensation requested by the Union." Accordingly, only a declaration was awarded. In my view,, the above rea~:'oning applie~ directly to this arbitration. In granting retroactive compensation and benefits to a successful applicant in the competition which' has been ordered to be posted, this Board of Arbitration is in fact granting a "windfall" (to use the ..................... term of the College-and tha~-cited in the Burkett award) which is particularly inappropriate since there is no evidenc· that any Union member actually applied for the posted competition or that the successful applicant would in fact have done so back in 1992. At the very least, what this Board of Arbitration should have done is await any further request by either party to deal with this particular aspect of compensation. With reSl3eCt to the above, ! would have both denied the grievance and not have awarded the compensation retroactive pay and benefits ordered by this Board of Arbitration. Dated at Sault'Ste. Marie, Ontario, this 13th day of September;-' 1994. DAVID CAMELETTI College Nominee