HomeMy WebLinkAboutUnion 93-10-27 (2) In the Matter of an Arbitration
Between:
Seneca College
(Employer)
-and-
OPSEU
(Union)
Arbitrator: M. Brian Keller
Employer Nominee: Ron Hubert
Union Nominee: Jane Grimwood
Appearances: For the Employer: Stephen Shamie
For the Union: Pamela Munt-Madill
Hearing: Toronto, March 1 and June 21, 1993.
2
AWARD
The Board was constituted to deal with the following grievance:
That the college has violated Article 15 of the
support-staff collective agreement by improperly
declaring the position - Cocktail Bartender - P.B. 6 at
Eaton Hall - M.D.C. redundant.
At the outset of the hearing the employer made two preliminary
objections: the first that the grievance was filed beyond the
mandatory time limits provided in the collective agreement and
the second that the grievance was not a proper union grievance as
provided in Section 18.3.3 of the collective agreement.
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
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. A Union grievance
shall be presented in writing, signed by the Local
Union President or his/her designee to the Director of
- 3 -
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.
Seneca College Eaton Hall is a hotel conference facility. It has
44 bedrooms, 10 meeting rooms, a dining room and at least one
lounge area with bar. It was profitable until, for the year
ending March 1992, it ran a deficit of just over $300 thousand.
For the year ending March 1993, that deficit had increased to
$371 thousand. The reason was a significant decline in business.
A review was made of the services offered by the Hall and on May
11, 1992, the employer wrote the union stating that due to the
decline in business levels the College was contemplating action
that might result in three employees being subject to the layoff
process.
At that time, the bar hours offered by Eaton Hall was noon until
1 a.m. Two full-time bartenders were employed by the College:
Mr. William Robinson and Ms. Roberta Russel. Their job was paid
at Pay Band 6. There were, additionally, part-time help and
students enrolled at the College who were supervised by the
- 4 -
full-time bartenders. Because of the downturn in business it was
determined that there was no longer any need to keep the bar open
the same hours and a decision taken to modify them effective
September 1, 1992 to noon - 2:30 and 4:30 to midnight. Ms.
Russel was the senior of the two bartenders so Mr. Robinson's job
was declared redundant.
Following the May llth letter and pursuant to section 15 of the
collective agreement, the union and the College met to consider
alternatives to layoff and Mr. Robinson's situation was discussed
on June 8. The evidence led by the College was that the union
was informed that the bar would close from 2:30 until 4:30 and no
bartender would be needed in the afternoon. It was also pointed
out that the collective agreement prohibits split shifts.
'On June 23 the Joint Committee recommended that Mr. Robinson be
transfered to the position of Food Service Worker to be vacated
by another employee on August 31 at Pay Band 3. Mr. Robinson
chose to accept that position rather than another one that had
been offered at Pay Band 5 because he preferred the hours and the
shift. The Food Service Worker sets up the tables in the dining
room, waits on tables and cleans up after meals.
- 5 -
Although the College determined there was no need for a
bartender from 2:30 until 4:30 they did have a need for one over
lunch time. So they advertised for a part-time bartender. The
union became aware of it and raised it in a Committee Meeting
July 12, 1992. In spite of receiving numerous applications the
College decided to approach Mr. Robinson and see if he was
prepared to take on the lunch time bartending duties as well as
his other dining room duties. He agreed and his position
description was re-written resulting in an increase to Pay Band
4. It was then that the union grieved.
The Board was told by Mr. Eugene Wilson, President of Local 561
that it had made the recommendation to transfer Mr.. Robinson
before it was aware that the College still required bartending
duties over the lunch hour. The union, he testified, would have
immediately challenged it on the grounds that the job Mr.
Robinson was performing still existed.
Prior to his transfer, Mr. Robinson's position title was Cocktail
Bartender. The position summary states the overall purpose of
the position is:
- 6
"To stock, maintain and operate a cocktail bar and host bars
in the Eaton Hall Management development Centre.
Additionally to give meaningful instructions about the
beverage department to Hospitality students.
Except for occassionally helping to serve food to guests in the
lounge, the core function of Mr. Robinson's position was that of
bartender.
In his new position, entitled Food Service Worker, he performs
the work as provided in his Position Description. Mr. Robinson
testified he serves drinks during the lunch hour but acknowledged
the demand was minor. He also sets up the bar. There was some
dispute over the precise amount of time the set-up takes but it
appears to take just over 30 minutes.
In his testimony Mr. Robinson also stated he has once or twice
served a drink in the afternoon at the insistence of a guest. He
also produced'a document which appeared to show, on its face,
that the bar was not closed between 2:30 and 4:30. When the
document was reviewed with him in detail in his cross-
examinatiOn, he acknowledged that there were certain errors in
the document. The Board is satisfied that the bar is closed as
- 7 -
stated by the employer.
In the circumstances of this case, the Board has determined that
it would prefer to deal with the merits, and given the result,
there is no need to deal with the preliminary objection.
There were two arguments made in support of the grievance. The
first was that the employer violated section 15 of the collective
agreement in declaring Mr. Robinson's position redundant. It was
submitted that if the job duties exist, the position ex'ists and
that the evidence indicated that there was a continuing existence
of Mr. Robinson's former job. It was also submitted that in
declaring a job redundant, the job vacancy must be
individualized: it is not sufficient that the Eaton Hall is now
running a deficit. The second argument is that the procedural
requirements provided in section 15 were not met in 'that the
College did not fully disclose its intentions about the job
resulting in the union concurring in a recommendation based on
incomplete and inaccurate information.
On behalf of the College it was submitted that a decision to
declare Mr. Robinson's job redundant was based on valid business
- 8 -
considerations. There was simply not enough business in the
afternoon to justify the day-time bartending position. Once that
determination was made they acted properly, exercising their
management rights as provided in section 3 of the collective
agreement.
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 of cessation of
operations and all other rights and responsibilities
not specifically modified elsewhere in this
Agreement.
It was.also argued that the College fully disclosed the financial
data on which it based its decision and withheld nothing from the
union. That it subsequently determined that a part-time
bartender was required did not alter the fact that the full-time
bartender position was no longer required.
In our analysis of the evidence, based on the testimony of all
the witnesses, the conclusion that is reached is that until 4:30
at the earliest, and including the lunch hour, there is very
little bar business. This was acknowledged by Mr. Robinson.
The uncontradicted evidence of the College was that the revenues
between 2:30 and 4:30 were less than the salary of the bartender.
Consequently the decision to declare the day-time bartender
position redundant was made on the basis of a determination of
there not being any need any longer for that position. Thus
there was nothing improper about that determination by the
College.
The Board is also satisfied that Mr. Robinson's new position is
not simply a continuation of his old. The core duties of his
former position were all related to bartending. In his new
position, he primarily works in the dining room setting up,
washing dishes and cleaning. Those are his core duties. The
bartending duties he performs are incidental to those core
duties. The result has been, in our judgement, a material change
in his job functions.
We are also satisfied that the College disclosed its intentions
and the reasons for them during its meeting with the union. It
should not be faulted for offering Mr. Robinson the part-time
bartending duties when it could have engaged a part-time employee
for two hours per day. With his new duties Mr. Robinson was
moved from Pay Band 3 to 4 and was able to continue some
bartending duties which he wanted to do. Interestingly, it was
acknowledged by the union that if the part-time duties had not
been offered to Mr. Robinson but a part-time employee had been
hired, no grievance would have resulted.
In the result, we are satisfied that the College has not violated
the collective agreement. The grievance is dismissed.
M. Brian Keller, Arbitrator
Jan~. ~w~nion Nominee
Ron Hubert, Employer Nominee
92L~.~~.
ADDENd)EM TO THE AH_RD OF
I oon~ ~th t~ ~jority ~ the resetS' but f~! {t' ~or~t to add
ce~ ~nts ~ich ~e ~propriate ~ th~ cont~.
.Eirst!y, the obvious intent of Article 15 is to protect, wherever, possible,
existing levels of staffing, and the co=~pensation attached to these levels.
~nat is why the words:
"in order to p~eve~t or m/nimize the
dislocation of employees." are used
in Article 15.3-4.
Secondly, an8 ~mlth the ~bove 'intent in ~lind, I can only query whether the
Employer had in fact considered all relevant data in o~der to ~ke ~n
informed business decision. Many businesses, including other conference
facilities, ~have been hard-hit by the recession. Ho%~ver, the knee-jerk
reaction to lay-off employees is s~w?lt an attempt to not deal ~ith the
rea! issue -- ~he decline in sales. Not all businesses close in a
recession, but short-term t.h/nkLng mill guarantee a permanent closure
of this !ong-profitab~_e facility.
The Emp_loyer's hasty action in dee!~ring the b~tending'l~oSi%ion~eld by
M~. Rob~on. red~d~t vh~ the b2~d~n~ duties still ~zted ~kes no.
bun~os~ son~ nor %~ it m ~iti~ !~t~ relations t~i~e.
Union Repres~tati~, ~g~e Wilson, %ms tricked into m~ee~g-to tr~sfer
~. Robinson to ~oth~~ ~sibion ~ca~e ~nag~nt told him t'~t b~
ba~ding duties ~e no longer r~ired- However, sho~ly thereafter,
~g~nt creat~ a new job descri~ion, for a dlffer~t ~sition, ~d
50 ~ of the pre~o~ ba~d~g duties ~e in the new ~sltlon.
It ~s cle~ fr~ the e~d~ce of t~ ~loy~s that the~ were dedica~d to
their ~sltlons ~d to the c~tinuing suc~ss of the facility. ~e clr~itlous
~er used by ~a~t to ~a~ only se!~ed infoz~tion to the
did not ~nefit ~yone. ~e ~loy~ co~d hmve avoid~ the ~rd-feelings
~d the Grie%~n~ if it ~d ~ ~did %~th the ~ion fr~ the outset.
Ja~ Gri~od, O.P;S.E.U. N~nee