Loading...
HomeMy WebLinkAboutUnion 15-07-22Case Name: Humber College Institute of Technology & Advance Learning v. Ontario Public Service Employees Union (Bargaining Unit Work Grievance) IN THE MATTER OF an Arbitration Between Humber College Institute of Technology & Advanced Learning (the "College"), and Ontario Public Service Employees Union (The "Union") AND IN THE MATTER OF a Union Grievance Concerning Bargaining Unit Work [2015] O.L.A.A. No. 294 Nos. 841309, 10201-RR-15 Ontario Labour Arbitration Toronto, Ontario Panel: David K.L. Starkman (Arbitrator) Heard: June 9, 2015. Award: July 22, 2015. (26 paras.) Labour Arbitration -- Process and procedure -- Arbitration -- Jurisdiction. Labour Arbitration -- Process and procedure -- Arbitration -- Policy arbitration. The union filed a policy grievance alleging that the employer college was in breach of the collective agreement because it improperly assigned counselling work. The college denied any violation of the collective agreement and asserted that the matter could not proceed as a union grievance because it related to a single position. The union said the matter raised by the grievance was not limited to a single position but affected the three or four other counselling positions. Page 1 HELD: Grievance dismissed. The arbitrator did not have jurisdiction to consider the grievance. Whether the matter involved the position of one counsellor, as alleged by the college, or more than one person as alleged by the union, there were individuals occupying those positions who could have filed a grievance. In order for the union to file a policy grievance in such circumstances it must establish that the employee had not grieved an unreasonable standard that was patently in violation of the collective agreement and that adversely affected the rights of employees. The union did not meet that threshold test. Statutes, Regulations and Rules Cited: Colleges Collective Bargaining Act, 2008, S.O. 2008, c. 15, s. 14, s. 71 Appearances: Appearances for the College: William Hayter: Counsel. Eloise Etcubanez: Human Resources. Meg Houghton: Disability Services. Ndra Simpson: Associate Director, Accessible Learning Services. Appearances for the Union: Lesley Gilchrist: Grievance Officer. Robert Mills: Chief Steward. AWARD 1 In October, 2014 the Union filed a policy grievance alleging that the College was in breach of the collective agreement because it improperly assigned counselling work. The grievance provided as follows: 2 Statement of grievance: OPSEU Local 562 grieves that Humber College is in violation of the Academic Employees Collective Agreement and the Colleges Collective Bargaining Act in that it is improperly assigning counselling work to support staff unit members. Page 2 This work belongs in the academic bargaining unit. By doing so the College has effectively tried to make alteration to the faculty bargaining unit contrary to the provisions of the Colleges Collective Bargaining Act and has denied the persons performing such teaching assignments of their rights under that Act. Settlement Desired: The College 1) recognize that work as Academic Bargaining Unit work. 2) immediately post and hire a regular full-time faculty counsellor position for that work, and 3) ensure that the Union be made whole. 3 The College denied any violation of the collective agreement and asserted that the matter could not proceed as a Union grievance and reference was made to article 32.09 of the collective agreement which provides as follows: The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed 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 employees. 4 No evidence was heard concerning this motion, but in their submissions both parties made reference to what they asserted were the background facts. The College submitted that the grievance concerned the work performed by Mr. Green who bid on a posting for the position of Student Success & Engagement Liaison in the support staff bargaining unit and commenced work in the fall of 2014. 5 In the Union's view the matter raised by the grievance is not limited to a single position but affected the three or four other counselling positions. In its view, the grievance is not specific to Page 3 individuals but is about protecting the integrity of the bargaining unit, and that the scope of the bargaining unit should not be determined by the vagaries of whether an individual employee wished to initiate a grievance. Such matters are central to the interests of the Union and therefore the Union should be entitled to file a policy grievance in such circumstances. 6 The Union submitted that the remedies it was seeking were an integral part of the grievance. It emphasized that it was not seeking remedies for individuals but was seeking that the Union be made whole by way of the payment of Union dues, which in its view, is a remedy that cannot be requested by an individual grievor. 7 The Union noted that the scope of the bargaining unit is defined in the Colleges Collective Bargaining Act, 2008, S.O. 2008, c 15 (the "Act") and section 14 of the Act requires that that every collective agreement contain a provision which provides for the final and binding settlement by arbitration of all differences arising from the interpretation, application, administration or alleged contravention of the agreement. In its view, the question of whether counsellors are performing work within the scope of the Academic Bargaining Unit is such a dispute and the parties cannot contract out of the provisions of the Act. Therefore, the Union and the Employer are not entitled to agree to exclude persons from the bargaining unit who are properly included as set out in the Act. 8 Reference was made to the decision in Humber College of Applied Science & Technology and OPSEU, (1999) 80 L.A.C. (4th) 108 (Schiff). In that matter the Union brought a grievance alleging that certain work should have been assigned to members of the academic bargaining unit and the Employer objected to the jurisdiction of the Arbitration Board, inter alia, on the grounds of a violation of article 32.10 [now article 32.09]. The Board commented at paragraph 10 as follows: We agree with the College's argument that the foundation of the 1994 grievance and the grievance before us are the same--the College's alleged violation of the collective agreement by not accepting that the people doing certain defined work are covered by the collective agreement. But that alone does not make the grievances substantially identical. On the foundation rest two different collections of interest. The first are the interests of the individual employees in what membership in the academic bargaining unit gives to them. These interests include tenure terminable only for just cause, defined salaries, specific workload, standards and procedures to determine their seniority, protections in the event of layoff, and grievance and arbitration procedures when employees believe the College has hurt them by some violation of the agreement. The other collection of interests are those of the union. These include the interest in getting dues as income (a specific claim in the written form of grievance before us), the interest in notice of hirings and their nature so that the union can keep track of potential dues-paying employees and check on the propriety of the hirings, and the interest in the ability of the union to police the College's honouring of its obligations. In other words, the College's promise in the collective agreement to have defined Page 4 work performed by employees in the bargaining unit runs to both individual employees and the union. An individual, on the one hand, and the union, on the other, may rightly grieve to enforce the promise within the scope of the particular interests the agreement creates for each. For an earlier award applying this thinking, see Re Cambrian College and OPSEU, Union Grievance (1997), at 7-8 (Kruger, Chairman). 9 The Union also referred to a second decision which reached a similar conclusion with respect to allowing a Union grievance in circumstances when an individual might have grieved: see Cambrian College and Ontario Public Service Employees Union, Union Policy Grievance (Support Staff), unreported, July 7, 1997 (A.M. Kruger). 10 Alternatively, the Union submitted that the College's decision was a patent violation and that it adversely affected the rights of employees. 11 On behalf of the College it was submitted that the Act established the bargaining unit and one looks at the persons performing the work to determine which bargaining unit they belong in, and with respect to the counselling positions, there were persons in those positions who could have grieved and chose not to. 12 In its view, the parties are entitled to define what constitutes a difference and have chosen to restrict Union grievances to not include matters upon which an individual employee could grieve except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of the Agreement and that adversely affects the rights of employees. 13 The College denied that the Union was entitled to grieve, despite article 32.09, in circumstances when it alleged that the integrity of the bargaining unit was threatened and referred to article 71 of the Act which provides: Member of the bargaining unit 71. If, in the course of bargaining for a collective agreement or during the period of operation of collective agreement, a question arises as to whether a person is a member of a bargaining unit, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and finding for all purposes. 14 Reference was also made by the College to the decisions in Fanshawe College and Ontario Public Service Employees Union OPSEU File No. 511118, unreported, October 2009 (H.D. Brown),St. Lawrence College and Ontario Public Service Employees Union, Local 417, unreported, November 21, 2011 (D.K.L. Starkman), and St. Lawrence College and Ontario Public Service Employees Union, Local 417, unreported, April 13, 2012 (D. Leighton). DECISION Page 5 15 In Fanshawe College and OPSEU Policy Grievance 2006-0110-0101 Re: Professional Development Leave, unreported, 2007 (P. Knopf) the Union filed a policy grievance concerning the way the College granted Professional Development Leave to a professor in 2005/06. The College objected to the jurisdiction of the Board on the basis of article 32.09. 16 In upholding the objection the Board noted at p. 13: However, an equally important principle of labour law is that the parties' Collective Agreement must be honoured. Article 32.09 is a specific and detailed provision that the parties have adopted in the course of their sophisticated and carefully constructed Collective Agreement. Arbitrators have dealt with the language many times and always given it effect and meaning. It is recognized as limiting the Union's ability to complain about alleged violations of the Collective Agreement unless it can demonstrate that there was an "unreasonable standard", a "patent violation" and adverse effects" on the "rights of employees". All three criteria must be met. See Cambrian College, Sir Sanford Fleming College, Loyalist College, Seneca College, supra. 17 In Durham College and Ontario Public Service Employees' Union, Local 354, unreported, November 1, 2012 (P. Knopf), the Union grieved that the College had improperly classified the position of Disability Advisor in the Support Staff Bargaining Unit. Initially it was seeking "dues lost as a consequence of improper classification," but at the hearing sought that the individuals affected be placed into the Academic Bargaining Unit. 18 The College objected to the arbitrability of the grievance on the basis that an individual could have grieved. In dismissing the grievance the Board determined that the Union must meet all of the criteria in article 32.09 in order to proceed. The jurisprudence concerning the requirement to demonstrate a "patent violation" has found a high standard requiring the Union to demonstrate a "crystal clear" violation. It is not sufficient to allege that there is an arguable violation. 19 In Canadore College and Ontario Public Service Employees Union, Local 657, unreported, January 29, 2014 (D. Leighton), the Union alleged that the College had improperly assigned the work of certain student counsellors to positon in the Support Staff Bargaining Unit and requested that these positions be placed in the Academic Bargaining Unit and the Union be made whole. 20 The College objected on the basis of article 32.09. The Union did not claim any of the exceptions set out in that section. In dismissing the grievances the Board noted at page 9: There is no doubt in the case before us that the laid-off counsellors could have grieved. The track employees could also have grieved that they were not properly classified. As in Durham, these grievances are essentially individual grievances. We agree with the analysis in Durham that under this collective agreement if an individual could challenge the college's changes to their working conditions, then Page 6 the Union cannot unless it can establish the strict criteria required under Article 32.09. 21 At page 10 the Board also commented on the suggestion in the Humber College decision, supra, that there are a collection of interests and noted the following: Even though both the union and individuals may have a collection of interests in grieving the college's changes to the counselling work, if individuals have a right to grieve, then a long line of case have held that the union must meet the strict terms of the Article. 22 The decision in Canadore College, supra, and the decision in Durham College, supra, both deal with Union grievances alleging that the persons working in the respective counselling positions should be in the Academic bargaining unit. Both found that these were situations in which individuals could have initiated an individual grievance and both Boards of Arbitration found they did not have jurisdiction to consider the matter because of Article 32.09 of the collective agreement. 23 Similarly in this case I have found that I do not have jurisdiction to consider the grievance. Whether the matter involves the position of one counsellor, as alleged by the College, or more than one person as alleged by the Union, there are individuals occupying those positons who could have grieved that they should have been placed in the Academic Bargaining Unit. 24 The jurisprudence is clear that in order for the Union to file a policy grievance in such circumstances it must establish that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees, and after considering the jurisprudence I have determined that the Union has not met this threshold test. 25 With respect to the Union's argument that it is seeking a remedy of the payment of Union dues which only the Union can seek, it is my view that if an individual had filed a grievance that they should be placed in the Academic Bargaining Unit, and if such grievance were successful, a remedy of the payment of Union dues might be awarded. 26 Accordingly, and for these reasons I have concluded that I do not have the jurisdiction to consider this grievance. Dated at Maberly, Ontario this 22nd day of July, 2015 David K.L. Starkman Page 7