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HomeMy WebLinkAboutUnion 91-12-13 IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE THE EMPLOYER AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION THE UNION AND IN THE MATTER OF A GRIEVANCE ALLEGING VIOLATION OF ARTICLE 18.2.7 -- OPSEU FILE NO. 91A875 Board of Arbitration: D.D. Carter, Chair J. Herbert, Union Nominee R.J. O'Connor, Employer Nominee Appearances for the Union: G. Caroline, Counsel J. Molleson, President, OPSEU, Local 418 Appearances for the Employer: A.E. Burke, Counsel J. Flegg, Manager, Employee Relations A hearing in this matter was held at Brockville on October 8, 1991. AWARD This union grievance alleges that the employer in the course of disciplining William Huff violated article 18.2.7 of the collective agreement. This grievance seeks both the removal of the discipline imposed on Mr. Huff and reinstatement of his lost wages and credits. The facts giving rise to this grievance were not in dispute. At all relevant times Huff was employed as a custodian at the college's Brockville campus. Work was assigned to him on a daily basis by Beth McLean who, as a Group Leader, was still a member of the support staff bargaining unit. McLean in turn reported to Blayne Mackey, director of physical resources at the Brockville campus. On November 30, 1990, Huff was advised by McLean that Mackey wanted to meet with him, but was given no indication at that time of the purpose of the meeting. Huff met with Mackey later that day at which time he was advised of a student complaint made against him. Huff gave his side of the story and then was advised by Mackey that he would be sent home for the remainder of the shift and would then be suspended for a day without pay. This decision was later confirmed in writing by a letter from Mackey to Huff. No grievance, either objecting to the penalty or to the manner of its imposition was filed by Huff. Instead, an allegation of a breach of article 18.2.7 was brought forward as a union grievance. It was the employer's position that this union grievance was precluded by the terms of article 18.3.3 of the collective agreement. In the alternative, the employer argued that, even if this grievance was arbitrable, the relief requested by the union was inappropriate for a union grievance as in this type of grievance only a general declaration should be issued. The thrust of the employer's argument, however, was that any right provided by article 18.2.7 of the collective agreement accrued primarily to the emploYee so that, under the terms of article 18.3.3, it fell to the employee, rather than to the union to initiate a grievance, since the union had failed to establish that it fell within the exception to the. general rule precluding a union grievance where an individual employee had a personal entitlement to grieve. The union, on the other hand, argued that this grievance raised an issue of particular importance to the union -- the right of employees to representation when being disciplined. It submitted t~at both the union and the other employees in the bargaining unit had an interest in this issue and that it should not be at the exclusive option of an individual employee to bring this matter to the grievance procedure. According to the union, it was well accepted that a similar set of facts could give rise to both an individual grievance and a union grievance and that it was equally legitimate to pursue either type of grievance in such circumstances. The union emphasized that this case raised an important issue concerning the extent of the union's right to represent employees in the bargaining unit -- a question of particular importance to the union because of the statutory scheme underlying the collective bargaining relationship which conferred on the union exclusive dghts to represent all employees in the bargaining unit. It was the union's position that this type of grievance was not excluded by the language of article 18.3.3 since the opening language of that provision recognized the right of the union to file grievances on its own behalf where its interests were affected. This general right, according to the union, was not intended to be circumscribed by the language found later in article 18.3.3. It is beyond dispute that the same set of facts can give rise to both an individual and union grievance. In this situation an employee may have been personally affected by an employer's conduct, but at the same time the conduct also has implications for the union, either because of its impact upon the union's role as the exclusive representative of all employees in the bargaining unit or because it has ramifications for the other employees in the bargaining unit represented by the union. Where there is this overlap between the interests of the individual and the interests of the union, arbitrators have generally taken the position that there is no presumption that the existence of the one type of grievance should ~xclude recourse to the other type, absent any clear language to the contrary in the collective agreement. These two parties, however, have expressly addressed this situation in their collective agreement. Article 18.3.3 reads: 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 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. This language, in our view, does place some limits upon the filing of union grievances. While, as a general rule, the union may file grievances on its own behalf, this dght to file union grievances has been qualified by article 18.3.3 where it can be established that an individual has a clearly defined personal entitlement to grieve. Such a personal entitlement would arise when a disputed provision of the collective agreement has direct and immediate consequences for an individual employee. In these circumstances the right of the union to file a grievance arising from the same facts has been limited by the language of article 18.3.3. Given this language, the question that we must first answer in this case is whether the alleged violation of article 18.2.7 gives rise to a personal entitlement to grieve or whether it is a matter that has direct and immediate consequences for the uni~)n alone. Article 18.2.7 reads: 18.2.7 Rights An employee shall not be required to appear before a committee, board or other investigating body to answer concerning his/her conduct or performance without first being given reasonable opportunity to be accompanied by an employee representative if, as a result of his/her appearance, he/she may be subject to some written reprimand, assessment or penalty. However, this provision shall not be applicable when an employee is required to appear before his/her immediate Supervisor or, in his/her absence, the person acting in his/her stead or the Personnel Officer of the College to answer concerning his/her conduct or performance. From a first perusal of this section it is evident that this provision is intended to guarantee a measure of procedural protection for employees. In our view, if this procedural safeguard is not accorded to an individual employee, then that employee would be personally entitled to file a grievance. Indeed, the union candidly admitted that there was an individual claim to this procedural protection. This procedural guarantee, however, also has implications for the union as the exclusive bargaining agent and for the other members of the bargaining unit. What we see in this Case is an obvious overlap between the interests of the individual employee and the interests of the union and thf~ bargaining unit as a whole. In this situation the language of article 18.3.3, while circumscribing the union's right to grieve by no means completely precludes a union grievance. What the union must establish here is that there has been a failure to grieve · an unreasonable standard that is patently in violation of this agreement and adversely affects the rights of persons in the bargaining unit." In our view this case does raise an issue of the appropriate procedural standard when discipline is being administered in the normal course of managing the college's workforce. The union takes the position that in this situation there is a general entitlement to be accompanied by an employee representative while the employer takes the position there is no right to this procedural safeguard. Whatever the merits of the union's grievance, it is clear to us that what is at issue here is an allegation that the employer's procedural standard is unreasonable and in violation of the collective agreement. It is equally clear to us that this matter, because it involves a standard of general application, affects employees in the bargaining unit other than Mr. Huff. what is less clear, however, is whether the standard being applied by the employer is patently in violation of the collective agreement. To answer this question it is necessary to give some consideration to the merits of the grievance. The union argued that article 18.2.7 was intended to provide a broad right to union representation when discipline was being imposed and that the exception to this requirement was restricted to those situations where a non-disciplinary performance review was being conducted by the person to whom an employee normally reported. The facts of this case, according to the union, did not fit within that exception since discipline had been imposed by a person other than the Group Leader to whom Huff normally reported. The union submitted that in these circumstances there had been a violation of article 18.3.3 and the appropriate remedy was to void the suspension and compensate the griever accordingly. These arguments, however, fall far short of convincing us that there has been a patent violation of article 18.2.7. We read this provision quite differently than the union. As we see it, article 18.2.7 draws a distinction between two different types of processes through which an employee is held to account for his or her performance. One process contemplates the usual in(Jlustrial relations procedure of a meeting between an employee and a first line supervisor while the other process contemplates a much more formal inquiry before a committee, board or other investigating body. Article 18.2.7 only provides an entitlement to an employee representative where this latter process is used. In this case, however, a formal inquiry was not initiated and the matter was simply handled through a meeting between Huff and a first line manager. On these facts we see no patent violation of article 18.2.7 and for this reason it is our conclusion that this grievance should be dismissed. Dated at Kingston this _ day offer, 1991. D. Carter, Chair J. Herbert, Union Nominee R.J. O'Connor, Employer Nominee BETWEEN~ ST. L~Wl~NCR COLLEGR . (the ONTAIt-IO ~UBLZC SRIVI~B F~PLOY~BB~ UNION, (tho .Union") AND IN THE ~ATTER OF ~% OlIZEFANCH ALLE~ZN~ VZOL~TZON OF ARTICLE 18,27 - OPB~U P~LE NO, 91A675 ~DDWNDUM .- Although I concur in the result in that the facts off this case disclose no breach of Article 18.2.7, I would address the problem of the union's right to file the grievance somewhat differently than has the majority. The law is now well settled that a union, as one of two parties to an agreement, has an unfettered right to claim a breach of a collective agreement absent clear language to the contrary. Quite apparently, Article 18.3.3 imposes a restriction of some sort, however, it is a restriction which ought not be more broadly applied ~han the language specifically requires. In the majority's view, the issue is stated at page 5 as one o~ whether a personal entitlement is involved 'or whether it is a matter that has direct and immediate consequences for the union alone". There are a number of instances which, in my view, whould properly give rise to a union grievance where a personal entitlement is also involved. Indeed, given that collective bargaining is generally about the uniform construction of personal entitlements, the majority's dichotomy appears difficult to accept, 2 and seems inconsistent with the prevailing arbitral view (see e.g. T.on~on Tr-nsit Commission (19S3), 10 L.A.C. (3d) 34S (Rayner). In my respectful view, wh~re a union has an independent interest in the matter at issue, Article la.~.3 poses no restriction aa no individual employee could be said to be in the position of grieving on behalf of the union, identifying its interest, and taking carriage of the matter. Second, where a number of employees are involved, or a policy is at issue, an individual employee is not able to grieve on behalf of the larger number or set ou= the union's view of the policy. The issuem involved in thig case are admittedly less clear cut, and, in any event, as I have indicated, the facts do not establish a breach of Article 18.2.7. DATED AT TORONTO, this 12th day of December, 1991. .? Union. ~tnee /, /