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HomeMy WebLinkAboutUnion 91-02-27 IN THE MATTER OF AN ARBITRATION BETWEEN FANSHAWE COLLEGE OF APPLIED ARTS & TECHNOLOGY (the College) - AND - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the Union) AND IN THE MATTER OF A UNION GRIEVANCE (OPSEU File %88C647) BOARD OF ARBITRATION A. M. Kruger - Chairman Mr. J. McManus - Member Mr. R. St. Onge - Member APPEARANCES For the College - P. Jarvis and others For the Union - P. J. Lukasiewicz and others HEARING AT LONDON, ONTARIO, DECEMBER 3, 1990 Page 2 The matter before this Board arises from a Union grievance dated October 8, 1998. At the outset of the hearing, counsel for the College objected to the Board hearing this matter because, in his view, it was not proper union grievance. It was agreed that the Board would hear evidence and argument both on this prelim- inary matter and on the substantive issue raised by the grievance before ruling on the College's objection. The parties further agreed to the submission of a statement of agreed facts and, thereby, to dispense with the calling of witnesses. The facts relating to these matters are as follows. The relevant collective agreement covers all Support Staff at the College except for certain designated groups. One of these exceptions is "persons regularly employed for twenty-four (24) hours per week or less." From time to time the College advertises openings for positions involving less than twenty-four hours per week. In four cases, full time staff, belonging to this bargaining unit, have applied for and been hired to perform this work at the advertised straight time rate for these jobs. Three of these employees work at part-time positions paying less than their normal rate. The fourth works in a job that is classified in the same category and pays the same rate as her full-time position. The Union objected to the practice of hiring full-time bargaining unit members to work at what the Union considered to be overtime work without paying them the normal overtime premium. The matter was discussed between the parties. It was the Page 3 College's position that the jobs involved were outside the bargaining unit and that the College was free to employ anyone in these job including bargaining unit members. The Union tried to persuade the four employees involved to grieve but they refused. Indeed they tried, unsuccessfully, to force the Union to drop its objection to this practice. They were content with the opportunity to earn extra income on a regular basis. The Union then filed the grievance that ultimately came to this Board for a decision. We turn first to the College's objection to this matter being brought as a Union grievance. Article 18 of the collective agreement deals with Complaints/Grievances. Article 18.3 is headed "Types of Grievances". It goes on to deal with Group Grievances (18.3.1), Multi-College Issues (18.3.2.) Union Grievances (18.3.3) and College Grievances (18.3.4.). Before we proceed to the argument of the parties on this issue, we will reproduce here in full Article 18.3.3. 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 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 estab- lishes that the employee has not grieved an unreason- able 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 Page 4 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. THE COLLEGE'S CASE Counsel for the College pointed out that this provision explicitly limited such grievances in instances where individual grievances could have been filed to those cases "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." There is no dispute that the four employees doing the part-time work could have grieved. Indeed the Union admits that it tried to persuade them to do so and failed. The Union must show both that what the College has done "is patently in violation of the Agreement" and that it "adversely affects the rights of persons in the bargaining unit." The words "patent violation" mean that as long as the College has an arguable case, there can be no union grieVance. The College does have case, namely that the work involved is outside the bargaining unit and, therefore, can be offered to anyone. Furthermore, there is no evidence that what the College did adversely affected anyone in the bargaining unit. The four employees were happy with the arrangement. No one else was involved. Page 5 Even if the Board should find this to be a proper union grievance, the Union's claim that the four employees involved receive retroactive overtime payment must fail. They could have grieved and did not do so. The time limits for individual grievances are long past. At most the Board could issue a declaratory ruling. This view is unanimously supported in the cases filed with the Board. As for the Union's argument that the College has waived its right to raise this issue, the Board should reject this argument. The right to grieve is a substantive right and not a proceedural matter and substantive rights cannot be waived. Cases filed with the Board support this view. Furthermore, the College's position does not come as a surprise to the Union. Exhibit 10, filed with the Board, is a letter dated November 29, 1989 from counsel for. the College to counsel for the Union advising him of the College's position that this grievance "is not properly brought as a union policy grievance." T~E UNION'S CASE The Union began with the issue of whether the College had waived its right to raise this objection. Counsel for the Union pointed out that no objection was raised by the College at Step 3 of the grievance procedure. The complaint was dealt with on its merits. As for Exhibit 10, it arrived over a year after the pre- arbitration steps of the grievance procedure has been exhausted. In support of its position, the Union filed an award by Ms. G. Brent, Re. Fanshawe College of Applied Arts & Technology and Page 6 Ontario Public Service EmDloyees Union (unreported, February 7, 1984). The Union argues that to qualify as a union grievance, the Union must show that the employees entitled to grieve have not done so, that there is an unreasonable standard that is patently in violation of the agreement and that bargaining unit members are adversely affected. There is no dispute about the fact that the four employees involved have refused to grieve even when the Union asked them to do so. Article 1.1 acknowledges the Union as the exclusive bargaining agent "for all Support Staff employees" of the College with certain exceptions. The recognition extends to persons (employees) and not merely to positions held by such employees. Article 6.1.1. specifies the hours of work for members of the bargaining unit and Article 6.2.1. requires a premium rate (time and one-half) for overtime work beyond these normal hours. The College cannot make private arrangements with bargaining unit members that contravene Article 6. These employees worked beyond the hours specified in Article 6.1.1. and were not paid the premium rate required by Article 6.2.1. This constitutes an unreasonable standard in patent violation of the collective agreement. In support of this position, the Union cited the award of Mr. Burkett Re. Fanshawe College of Applied Arts & Technology and Ontario Public Service Employees Union (unreported, March 29, 1989). Page 7 Where the. College violates the standard set in the agreement and where the individual's involved refuse to grieve, the Union must have some way of policing its agreement and that is the intent of Article 18.3.3. Only in this way can the Union protect the broader interests of all its members. If the College can continue this practice, there will be an incentive to package work otherwise done as overtime work in the form of jobs under 24 hours per week and, therefore, outside the bargaining unit. This clearly would work to the detriment of members of the bargaining unit. The Union argues that if the grievance succeeds, the Board should go beyond a declaratory award and order retroactive overtime pay for the four employees involved in this matter. The College knew of the Union's objection but persisted in its practice. It should not be allowed to benefit from its violation of the agreement. T~E AWARD We have carefully reviewed the evidence and argument presented to us at the hearing. We find that the College has not waived its right to object to this grievance as a result of its failure to raise the matter at Step 3. The issue, therefore, is properly before this Board. We conclude that this is a proper Union grievance under Article 18.3.3. The Union has the exclusive right under Article 1.1 to bargain on behalf of full-time Support Staff employees on terms and conditions of employment applicable to them. One of Page 8 those terms and conditions of employment is found in Article 6.2 which fiXes daily and weekly working hours for these employees and requires a premium rate for authorized work performed over and above these specified normal hours. The work involved was authorized by the College and done by these employees in addition to their normal hours of work. The fact that they agreed to do the work at lower rates of pay then is required by Article 6.2 is irrelevant. Employees covered by a collective agreement cannot negotiate arrangements with their employer that are in violation of that agreement. This practice, does adversely affect members of this bargaining unit. Had the work been offered to others as overtime work, others might have applied for it. To permit this practice is to encourage the College to circumvent the requirements of Article 6.2 by taking advantage of the availability of full-time staff eager to earn extra income by volunteering for work at lower rates than required by Article 6.2. We find that all the requirements of Article 18.3.3. have been met. Individual employees who could have grieved refused to do so. The College has set an unreasonable standard in patent violation of Article 6.2 of the agreement by employing full time workers beyond normal hours at less than the overtime rate required by that provision of the agreement. The rights of bargaining unit members are affected by the resulting loss of opportunity for overtime work at overtime rates. Having found the grievance to be a proper Union grievance, page 9 we have in fact found in favour of the Union by declaring that there was a ~tent violation of Article. 6.2. We are persuaded by the argument of the college, supported awards dealing with this matter, by the majority of arbitration that it would be unappropriate to order any pa~ent to the four ~ployees involved. They could have grieved and chose not to do so. The college relied on their acquiescence in continuing to ~ploy th~ at 'this work. The time limits for individual grievances are long past and should not be circumvented by resort to Article 18.3.3. We order that effective one week after the date of this Award, the college cease to employ full-time Support staff in work outside their normal hours unless it ~ys th~ the appropriate premium rate for overtime. o on=o, A. M. Kruger I concur/I dissent ~ - j. McManus . ~ I concur/~ R. St. Onge IN THE MATTER OF AN ARBITRATION BETWEEN FANSHAWE CO' ~ FGE OF APPLIED ARTS & TECHNOLOGY AND ONTARIO PUBUC SERVICE EMPLOYEE'S UNION UNION GRIEVANCE #88C647 COMMENT ~ have read the award and concur with the principle enunciated. Unfortunately the conclusions reached serve neither of the parties and certainly not the employees. It is obvious if the college wishes this work done at straight time rates it will have to hire people from the community at large excluding its own willing and well trained employees. The Union will gain nothing if the policy of the College is changed to exclude the college employees and their members, since the people hired are an exclusion under the present Collection Agreement. The employees who participated in these activities could be denied the work, but also, privilege of applying for the work. Hardly a productive situation. R. St. Onge Board declines to award overtime payment to the four employees involved. The employees could have grieved and chose not to do so. The time limits for individual grievances were long past and ought not to be circumvented by resort to Article 18.3.3. Peter J. Lukasiewicz