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HomeMy WebLinkAboutSiu 92-11-10BETWEEN: GEORGE BROWN COLLEGE (Hereinafter referred to as the College} OPSEU (Hereinafter referred to as the Union} AND IN THE MATTER OF THE GRIEVANCE OF H. SIU (OPSEU FILE 92C259) BOARD OF ARBITRATION: Gall Brent Rene St. 0nge, College Nominee Sherril Murray, Union Nominee APPEARANCES: FOR THE COLLEGE: Daniel J. McKeown, Counsel Regina Park Judy Cornwell Graham Barker FOR THE UNION: Nick Coleman, Counsel Wayne Chan, Steward Hannah Slu, Grtevor Hearing held in Toronto, Ontario on September 14, 1992. DECISION The grievance in this case {Ex. 1), dated December 6, 1991 alleges that "a memo dated November 28, 1991, informing me that I will be laid off from my position as a technician B in Information System Department is an unjust application of Management Rights under Article 3.1 and any other applicable article of the collective agreement". The desired settlement is "1.) Cease and desist", "2) To be trained for a higher position within the above noted department". The College raised the objection that the grievance was inarbitrable and that we lacked jurisdiction to deal with it. This decision 2 will deal only with the preliminary objection. For the purpose of dealing with the objection the following facts were agreed upon: 1. The grievor was originally in a Technician B classifica- tion in Hardware Support in the Information Services Division; the job title was Dispatcher. 2. 0n July 6, 1991 a re-organization was implemented and the Dispatcher position was no longer under Hardware Support but in the User Services Group. The position was still classified as a Technician B and there was no change in job title. 3. On November 28, 1991 the College gave the grievor written notice of the redundancy of the position as Technician B in the User Services Group. The same letter identified her new assignment as a Technician B in a new division called Access Services. Exhibit 3 is the earlier notice of this to the Union. 4. The grievor accepted the assignment with no loss of pay (Ex. 5). 5. The grievance was filed on December 6, 1991. The College took the position that the grievor's job was declared redundant following restructuring in Information Services; the rationale for that restructuring is set out in Exhibit 4, paragraphs 1 and 4. The College pointed out that it had given the Union and the grievor notice as required in the collective agreement, followed the proper procedure set out in the collective agreement, and the grievor accepted a new position. The College 3 asserted that there was no jurisdiction granted this board to review its exclusive management right under Article 3.1. It also argued that even if Article 15 limits or modifies its management right, then Article 15.4 is quite broad and the management right to determine if a reduction is necessary is not circumscribed by reasonableness. The College pointed out that the grievor lost nothing. It also argued that the two remedies sought were inappropriate. The College further argued that any allegation of injustice was not sufficient to found a grievance in the absence of a substantive right. It asserted that there was no tempering of management's right by any standard of reasonableness in a lay-off situation. It further argued that there was no right in an employee not to be subject to the direction of management regarding where she was to be assigned. It ended by submitting that even if the grievance were heard the remedies requested could not be granted. The Union's position was that the elimination of the job and the lay-off and re-assignment were improper and a violation of the collective agreement. It asserted that the termination of the position was prompted by improper motives, and that the Union believes both that there was a racial element to the decision and that the grievor was being punished for filing other griev- ances about her work in the department. It submitted that Article 3 is modified by both Articles 15 and 2. The Union conceded that there was no mention of these allegations in the grievance, but.said that it was prepared to flesh out the allegations in evidence. It also conceded that the grievor would not be entitled as of right to the remedy sought regarding training, but said that it would seek a declaration that there was a violation of the collective agreement in eliminating the position, and would seek the rein- statement of the grievor to the position of dispatcher which existed before 4 the re-organization. It later conceded that there was no likelihood of us having the jurisdiction to reinstate the grievor to her former position. The College replied that there was no hint in the grievance as it was filed that the basis on which the grievor says the action was unjust was improper racial or reprisal motives. The College argued that even if that were alleged, that sort of bad faith does not found a grievance. It argued that it would have thought that there would be a specific reference to Human Rights in the grievance, and that if reprisal were alleged there were other forums for addressing it. The parties referred us to the following provision of the collective agreement (Ex. 7): 2.3 Ontario Human Rights The parties agree that in accordance with the provisions of the Ontario Human Rights Code there shall be no discrimination against any employee by the Union or the College because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, record of offences, marital status, family status or handicap. 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the Colleges to: - maintain order, discipline and efficiency; - hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance as provided for in this Agreement; - 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 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 rlghts and respon- sibilities not specifically modified elsewhere in this Agreement. 5 15.4 Layoff Procedure When a College decides that circumstances require a reduction in personnel in any position within a classification the following provisions shall apply: 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: - 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 require- ments 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 can satisfactorily perform the requirements of the job. If no such position is identified the employee shall be laid off. The parties also referred us to the following authorities: Re Georgian College of Applied Arts and Technology and Ontario Public Service Employees' Union (1983), 10 L.A.C.(3d) 359 (Brown); George Brown and OPSEU (Barton), 6 [1992) unreported (Brent); Canada Packers Inc. and United Food and Commercial Workers International Union, Local 175, (1991) unreported (Hinnegan); Niagara College and Ontario Public Service Employees' Union (Mills), (1991) unreported (Swan}; Conestoga College and 0PSEU, (1988) unreported (Samuels]; and St. Lawrence College and Ontario Public Service Employees' Union (McDermott}, (1989) unreported (Brent). In reaching our decision we have considered only the agreed facts, the collective agreement, the submissions of counsel and the authorities cited. The submissions of the parties are set out in some detail because when they are compared it becomes obvious that the parties in their submissions in chief were really talking about two different situations - one which is apparent from the face of the grievance and one which is not. We have no great difficulty agreeing with the College's position in chief when the grievance, as it is written is considered alone. That is, there is nothing in the grievance, as it is written, that would clearly suggest that there is any basis for asserting jurisdiction to review the exercise of the College's management functions in relation to the re-organization, or to determine if a reduction in staff is required. The situation is obviously changed when the Union asserts that the College's exercise of its management functions was tainted by motives of racial discrimination and/or reprisal. Those allegations are not apparent from the face of the grievance. However, we were referred to nothing in the collective agreement which limits the parties to that which is stated on the face of the grievance. The College did not argue that the Union was precluded from raisin9 the issues because of any failure to state them explicitly on the face of the grievance. The College did not assert that it was taken by 7 surprise by the allegations. Had it done so, then clearly we would have had to consider whether we would allow the Union to make such new allegations at the hearing. We mus~ therefore assume that the College was not taken by surprise and that the parties had some prior dealings with each other during the grievance procedure or earlier in which the Union made known to the College the substance of its claim. Based on that assumption, we are faced with an entirely different situation than would have been the case had those allegations not been made. Quite clearly in Article 2.3 the College accepts that it has an obligation not to discriminate against any employee by reason of certain factors, one of which is race. It is our view that the exercise of management rights in Article 3.1 must be read in light of the positive obligations contained in Article 2.3. That is, the College could not use Article 3.1 to discriminate against an employee on any of the grounds prohibited in Article 2.3, and management rights must be exercised with the College's Article 2.3 obligations in mind. Although we are very concerned about the grievance form's failure to set out clearly the matter in issue, and would have considered different alterna- tives had the College argued that it was taken by surprise or pointed out some provision of the agreement which prohibited the Union from raising the matter, we believe that in light of Article 2.3 we have no choice but to hear this case on the merits. The Union will bear the burden of proving that the College's actions were motivated by race. If the Union cannot prove that case, then given the fact that no specific breach of Article 15 is being alleged, the matter will be at an end. If the.Union can prove that case, then, as noted in argument, we believe that the only remedy we could grant in 8 the circumstances of this case would be a declaration. It may be that the Ontario Human Rights Commission would have broader remedial powers and other powers than a board of arbitration in a case such as this, and the grievor may well decide in light of this decision to pursue that avenue. We will leave it to the Union to determine if this case is to proceed on the basis which we .have determined, and to notify us if the matter is to be scheduled for a hearing on the merits. DATED AT LONDON, ONTARIO THIS/~r~'"DAY bF ~Oo~-m....-{~, 1992. Gall Brent I concur / ~.~-nt Rene St. Onge, College Nominee I concur / Sherril Murray, minee