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