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HomeMy WebLinkAboutUnion 95-08-0 IN THE MATTER OF AN ARBITRATION BETWEEN: LOYALIST COLLEGE (the "College") ONTARIO PUBLIC SERVICES EMPLOYEES UNION (the "Union") GRIEVANCE RE CONTRACTING OUT (#94F215 (SUPPORT STAFF) BOARD OF ARBITRATION: Michel G. Picher - Chairperson Hugh Cook - College Nominee Michael Lyons - Union Nominee APPEARING FOR THE COLLEGE: D.K. Gray Counsel D. Butler V.P. Human Resources APPEARING FOR THE UNION: Gavin Leeb Grievance Officer Gord Wright Local President Andr6 Dutrisac Steward A hearing in this matter was held in Bellevile on February 24, 1995. AWARD This grievance concerns an allegation that the College has violated the collective agreement by contracting out. The Union alleges that a position of Student Residence Caretaker was contracted out in violation of a Letter of Understanding appended to the collective agreement, as well as article 1.2 of its provisions. The Union submits, in part, that the College, having first posted the position in question, was compelled to fill it, and that its failure to do so undermines the integrity of the bargaining unit. The College submits that any argument in relation to the posting provisions of the collective agreement constitutes an undue expansion of the grievance, and that this Board should not entertain submissions in respect of that aspect of the Union's argument. In the College's view, there are no provisions in the collective agreement, or within the Letter of Understanding, which were violated by its decision to contract out the Caretaker's work. The facts material to the grievance are not substantially contested. For many years, the cleaning and janitorial work performed for the College has been done in one of three ways: firstly, by bargaining unit employees who are employed full-time; secondly, by part- time employees who are not part of the bargaining unit; and lastly,, by the employees of independent contractors. The e~dence of Mr. Barry Deans, Director of Physical Resources for the College, confirms that the cleaning performed in the largest building on campus, known as the Kente Building, has been performed for some time by full-time employees in the bargaining unit. A second building, known as the Pioneer Building, has been cleaned -2- and maintained by cleaning contract companies for the past six or seven years. For the last three years, the work has been contracted to the Empire Maintenance Company. The grievance arises in relation to the contracting out of cleaning services for three student residences also located on campus. The residences, first opened in 1992, were initially cleaned by part-time caretakers employed by the College who are not members of the bargaining unit. The College eventually decided to establish a bargaining unit position to do that cleaning work, being a nine-month position for a Caretaker "A". A tentative job description was developed and the position was posted in accordance with the provisions of the collective agreement, with a deadline application date of January 12, 1994. It is common ground that no applications from any bargaining unit employee were received during the posting period, although it appears that there may have been applications from part-time employees not represented by the Union. The evidence of Mr. Deans confirms that at or about the time of posting the College became subject to a hiring freeze. As a result, a second Caretaker position for work in the Kente Building, which was part of the same posting as the new Residence Caretaker's position, was not filled. It is common ground that the work in respect of that building was simply redistributed, with the complement of Caretakers in the Kente Buildh3. g.being reduced from 15 to 14. Mr. Dean's evidence further confirms that in view of the hiring freeze, regard being had to the overall costs, it was decided that the work of the new Caretaker's position in the student residences should be contracted out. In the result, a contract arrangement was struck -3- with the Empire Maintenance Company whereby a Caretaker would be provided on the basis of six hours per day, six days per week for the period between August 22, 1994 and April 30, 1995. In addition, the contract calls for the provision of additional cleaning staff by the contractor on an "as and when required" basis, at an agreed hourly rate, to cover particular exigencies such as a one-time heavy cleaning campaign. It is not contested that the decision taken by the College was taken for valid business purposes, with a view to minimizing cost and maximizing efficiency in servicing the College's caretaking needs in relation to the student residences. For example, although the hourly rate cost of the contracted caretaker is roughly equivalent to the wage rate which would be paid to a bargaining unit employee, the College is relieved of the cost of benefits, the burden of supervision and related administrative costs. Moreover, the contracted price includes the supply of cleaning equipment and materials by the contractor. The issue of contracting out is touched upon in the following provisions of the collective agreement: ? 15.5.2 Severance Pay - Contracting Out In the event that an employee who is being laid off as a result of contracting out exercises his/her option to waive the recall procedure, as herein set out, he/she shall be entitled to severance pay based on one (1) week's pay at his/her current salary for each year of service. -4- 15.8 Contracting Out - Union Notification If the College decides to contract out work or services which are being performed by employees at the commencement date of this Agreement which would cause the layoff or involuntary displacement of any employees covered by this Agreement, the College will notify the Union four (4) weeks in advance of the written notice being provided to the employees affected. The processes in Article 15.3 shall be followed. LETrER OF UNDERSTANDING OCTOBER 21, 1992 CONTRACTING OUT It is agreed that no bargaining unit member who has completed the probationary period will be released from the College's employ as a direct result of the College contracting out his/her work. However, contracting out to an employer who will employ the employee with comparable terms and conditions of employment is not a breach of this letter of understanding. This.' letter of understanding will expire on August 31, 1994, but should the parties not have r_.eaehed a new collective agreement by that date, the letter shall continue to operate until the earlier of a Memorandum of Settlement being entered into or there is a right to strike or lock-out. The Union's representative submits that the College violated the collective agreement by the manner it implemented the contracting out. He submits that once it posted the -5- position as a vacant bargaining unit position, the College was compelled to follow through on a completion of the posting by filling the job in question. He submits that once it posted the position the College could not then treat it as no longer vacant, and contract out the job. In essence, the Union's representative argues that the College determined that a job existed to be filled, and having posted the vacancy cannot thereafter fail to fill it by having recourse to contracting out. With respect to the contractual obligation to fill a posted position, the Union relies on the recent decision of a board of arbitration chaired by Arbitrator Bendel in relation to a grievance between Cambrian College and the Union, an unreported award dated September 16, 1994. In support of the proposition that the College could not decline to fill the position, once posted, the Union further draws to the Board's attention the following awards: Re International Chemical Workers, Local 798 and Union Gas Co. of Canada (Ltd.) (1972), 24 L.A.C 159 (Lysyk); Re Air Canada and Canadian Airline Employees Association (1975), 8 L.A.C. (2d) 239 (Brandt); Re Robb Engineering, Division of Dominion Bridge Co. Ltd. and United Steelworkers, Local 4122 (19780, 20 L.A.C. (2d) 340 (MacDougall); and Re Regional Municipality of Ottawa-Carlton and Canadian Union of Public Employees, Local 403 (1988), 33 L.A.C. (3d) 299 (Simmons). As a first position, counsel., for the College submits that the position argued by the Union is beyond the scope of the grievance, and effectively constitutes a new ground of complaint. He stresses that the text of the grievance makes no mention of the posting provisions of the collective agreement, referring only to the alleged violation of the contracting-out provisions and article 1.2 which deals with the obligation to maximize full- -6- time positions over part-time positions. Counsel argues that this Board should not entertain the suggestion that the College violated the posting provisions of the collective agreement, stressing that that is a different complaint which has not been processed in a timely fashion through the mandatory steps of the grievance procedure. In support of that submission, counsel refers the Board to the decision of the Board of Arbitration chaired by Professor Rayner in Re Electrohome Ltd. and International Brotherhood of Electrical Workers, Local 2345 (1984), 16 LA.C. (3d) 78. The principal thrust of the position argued by counsel for the College is that the decision to contract out was fully within its prerogatives as contemplated under the terms of the collective agreement, and that there has been no violation of the terms of that document. Counsel points to the provisions of the collective agreement in relation to contracting out as evidence that the parties clearly contemplated that contracting out remains an option for the College, subject only to the restrictions found within those provisions. Counsel explains that the Letter of Understanding, newly inserted into the collective agreement in 1992, may arguably be seen as qualifying the provisions contained within the body of the agreement, but that the evidence does not disclose any violation of its provisions. In particular, he .stresses the undisputed evidence that there has been no termination or layoff of any bargaining unit employee as a result of the decision to contract out the cleaning and maintenance work in the student residences. Counsel argues that the evidence confirms no violation of the contracting out provisions of the collective agreement by the College and that on that basis the grievance cannot succeed. -7- The College next advances an alternative argument. Its counsel submits that if the Board is inclined to entertain the argument of the Union with respect to the effect of posting the position, and thereafter failing to fill it in favour of contracting out, the grievance is still without merit. Firstly, counsel submits that the decision of the Board of Arbitration chaired by Arbitrator Bendel in the Cambrian College case is wrongly decided. He argues that it is well established that an employer may decide not to fill a position even though the position has been posted. Counsel argues that in the case at hand the College retained the discretion, notwithstanding the posting, not to put anyone into the Caretaker's job and to contract out the work instead. With respect to the discretion of an Employer not to fill a posted position, counsel refers the Board to: Re International Nickel Co. of Canada Ltd. and United Steelworkers (1974), 6 L.A.C. (2d) 104 (Rayner); and Re International Nickel Company of Canada Ltd. and United Steelworkers, Local 6500 (1975), 9 L.A.C. (2d) 83 (Simmons). Counsel for the College further notes that none of the cases relied upon by the Union involves facts similar to those in the case at hand. Most particularly, he stresses that in none of those cases, as in this case, did the posting in question'run its full coUrse and expire unfilled. This is not, he argues, a case where the mischief of attempting to subvert the posting process can be argued, or is indeed alleged, as there were no bargaining unit applicants for the position, and the posting was discontinued after it had expired. Counsel submits that he knows of no reported award which supports the proposition that once a position is posted it must be filled, even if filling it requires the employer to hire off the -8- street. He submits, in effect, that the Union cannot complain about the removal of a position which never in fact belonged to the bargaining unit, to the extent that it was never filled. Conn.qel also submits that the decision of then Arbitrator Lysyk in the Union Gas Company of Canada case, dted above, which apparently influenced the Bendel award, has not been generally accepted by arbitrators in Canada as being correct in principle. We turn to consider the merits of the positions argued. In light of our disposition of the grievance, we need not rule on the issue of whether the grievance is improperly expanded to include the posting provisions of the collective agreement. In our view, it is important to bear certain fundamental principles in mind when considering the cases and issues which have been argued before us. Many cases arise because of a dispute between an employer and a union concerning the employer's obligation to honour the posting provisions of a collective agreement when a vacancy exists. It is not uncommon for collective agreements to provide that vacancies are to be filled in accordance with certain requirements in the collective agreement governing the bulletining of the work to the attention of bargaining unit employees, and the standards by which successful applicants are to be determined. Threshold questions arise, however, with respect to whether a vacancy does or does not exist at the outset. Subject to any contrary provision in the terms of a collective agreement, it is generally accepted that it is within the discretion of an employer to determine whether a vacancy exists, in the sense of deciding that there is a job within the bargaining unit which is available to be filled. For example, if a given employee retires or quits, it does not necessarily follow that a vacancy exists if the employer determines that the -9- work which he or she previously performed can be discontinued, redistributed among other bargaining unit employees or accomplished by some other means not otherwise prohibited by the collective agreement. In that circumstance, the employer can assert that there is no vacancy to be filled and that the posting provisions of the collective agreement do not come into play. (See, generally, Oshawa General Hospital (1992), 30 LAC (4th) 287 (Satterfield); Guelph General Hospital (1992), 25 LAC (4th) 260 (Burkett); and Pilkington Brothers Canada Ltd. (1976), 13 LAC (2d) 287 (Burkett). Greater difficulty arises in cases where the employer takes steps which evidence its view that there is in fact a job of work to be done so that a vacancy can arguably be said to exist. Again~ by way of example, if a given bargaining unit employee retires or quits, and the employer creates a new supervisory position which involves little more than the duties previously performed by the employee, it becomes more difficult to refute the argument that a vacancy existed and should have been posted to be filled in accordance with the terms of the collective agreement. As a general rule, therefore, a threshold question arises as to whether a vacancy can be said to exist which triggers an obligation in the employer in accordance with the collective agreement. ~ It is generally for the employer to determine whether a vacancy exists, although objective evidence may be looked to in respect of that issue, depending on the provisions of the collective agreement in question. In determining whether a vacancy exists, however, an employer may look to a number of factors. In an industrial setting, for example, a multi- - 10- plant employer may decide that work previously performed at one location can better be done in another plant. Or it may decide that the product being made by the employee previously occupying a given position can be out-sourced or purchased more cheaply. Alternatively, if the job involves a service rather than making a product, the employer may consider whether the service can be contracted for more cheaply, subject of course to any prohibitions in the collective agreement against contracting out bargaining unit work. Consequently, when an employer addresses its mind to whether there is a job of work to be performed within a given bargaining unit it may weigh a number of considerations. When the collective agreement to which the employer is bound contains no substantial restriction on contracting out, the option of having the work in question performed by a third party is a factor which may legitimately be considered before coming to a determination as to whether a bargaining unit position should be seen as vacant and available to perform the work in question. Bearing those principles in mind, what does the evidence before this Board disclose? Clearly, the College's first impulse was to take the view that a vacancy did exist, as evidenced by its decision to post the position of Caretaker for the student residences, with an application deadline of Janua~ry 12, 1994. The deadline came and went with no applications received from any bargaining unit employee. In the interim, a general hiring freeze was imposed, and the employer was compelled to consider all of its options. In our view, what it effectively did was to decide to abolish the position notionally created by the posting, prompted no doubt by the hiring freeze and the consideration that it could have the - ll- same work accomplished more cheaply and efficiently by contracting out. By so proceeding, the College took the previously existing vacancy out of existence. Is there anything in the collective agreement which prevented the College from adopting that course? We think not. A review of the collective agreement confirms that the College retains the prerogative to abolish any position, and to contract out the work of that position, subject only to certain specific conditions and qualifications. Under the current collective agreement, chief among those conditions, is that no employee in the bargaining unit is to lose work by reason of the decision to contract out "his/her work". Subject only to the notice provisions provided elsewhere in the agreement, that is the limit of the qualifications of the employer's prerogative. The position argued by the Union clearly goes farther. Its representative acknowledges that if a position is made vacant by reason of a retirement, there is nothing in the collective agreement which would prevent the College from contracting out the work in question. However, if the Union is correct in the position it argues in the case at hand, it would have more substantial protection in respect of a job which in fact was never f'flled, although it was posted. As the UniOn would have it, in these circumstances the College is compelled to hire someone from outside the bargaining unit, to fill the bargaining unit position which was posted. That, it submits, is the teaching of the award of the Board of Arbitration chaired by Arbitrator Bendel in the Cambrian College case. - 12- In our view, it is not appropriate to follow the Cambrian College award, given the facts of the case before us. The Cambrian College case did not involve a decision on the part of the College to contract out work which was previously posted. On that basis alone, the case at hand can be distinguished on its facts. Viewed from the perspective of the principles reviewed above, it would appear that the Board of Arbitration in the Cambrian College case concluded, on the basis of the posting of the job, that a vacancy did exist to be filled, and that the College's obligation could not be avoided. For the reasons already discussed, the case before us is substantially different, in that the exercise of the College's right to contract out the work was a factor in its decision to do away with the vacancy. Without commenting on the merits of the Cambrian College award, we would simply observe that it is not at all fours on the facts which are before us. On the evidence before us, we are satisfied that the College retained the prerogative, upon the expiry of the posting period, to notionally abolish the Caretaker's position. It did so for valid business purposes, regard being had to the hiring freeze imposed upon the College in circumstances of unquestioned financial restraint. Finally, as is evidence from the language of articles 15.5.2, 15.8 and the Letter of Understanding of October 21, 1992, there has been no violation of the con. t..racting-out provisions of the collective' agreement. Indeed, no bargaining unit position has been lost to any employee represented by the Union. In the result, for the foregoing reasons the grievance must be dismissed. - 13- DATED at Toronto this 3rd day of August, 1995. Mic~' "Hugh Cook" College Nominee "Michael Lyons" Union Nominee