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HomeMy WebLinkAboutUnion 16-05-18IN THE MATTER OF AN ARBITRATION Pursuant to the College Collective Bargaining Act, S.O. 2008 BETWEEN: SAULT COLLEGE (“Employer”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 613 (“Union”) (Grievance 2015-0613-099 – Failure to Post) ARBITRATION BOARD: Jasbir Parmar, Chair Sherril Murray, Union Nominee Ann Burke, Employer Nominee On Behalf of the Employer: Wallace Kenny, Counsel Rick Webb Mathew Trainor Janice Beasly On Behalf of the Union: Time Hannigan Counsel Lynn Dee Eason, President, Local 613 Frank Turco, Chief Steward This matter was heard on April 6, 2016, in Sault Ste. Marie, ON. 1 I. INTRODUCTION 1. The Union has filed a grievance alleging the College breached the collective agreement by failing to post and fill a full-time counselor position, vacated as a result of the incumbent retiring in June 2015. 2. Prior to the retirement, the College employed four full-time counsellors and three part- time counsellors. After the retirement, in September 2015, the College redistributed some of the incumbent’s hours to the part-time counsellors. The College also hired a sessional counselor to perform the remaining 35 hours a week. The College stated that its decision to hire a sessional employee, rather than post a full-time position, stemmed from concerns about enrollment numbers and continued funding for the program. There is no issue that the College acted in good faith for valid business reasons. 3. The issue in dispute is whether the collective agreement requires the College to post and fill a full-time position when an existing full-time position is vacated. II. THE COLLECTIVE AGREEMENT 4. The key relevant provisions of the collective agreement are: 6.01 It is the exclusive function of the Colleges to (i) Maintain, order, discipline and efficiency; (ii) Hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (iii) 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 2 cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. * * * 27.11A Notice will be posted in the College of all vacancies of full-time positions in the bargaining unit. Such notice will be posted for at least five working days. At the same time, notice of these vacancies will be sent to the Union Local President and shall be forwarded to the electronic Central Registry, maintained by the Council, where the notice shall remain posted for at least five working days. 27.11B Where a vacancy of a full-time position in the bargaining unit occurs and is not filled internally, the College will give consideration to applications received from academic employees laid off at other Colleges before giving consideration to other external applicants. For the purposes of this article, full-time and current partial- load employees or persons who have been partial-load employees within four months prior to the posting shall be considered internal applicants. Such consideration shall be given for up to and including ten working days from the date of posting as described in 27.11A. Consideration will include review of the competence, skill and experience of the applicants in relation to the requirements of the vacant position. III. SUMMARY OF PARTIES’ POSITIONS 5. The Union’s position relies on Article 27.11, which it submits is clear and unambiguous. In the Union’s view, Article 27.11 is mandatory, requiring the College to post if a vacancy “occurs”. The only question, the Union submits, is whether a vacancy has actually occurred. In the Union’s view, the College’s managerial discretion is limited to determining whether it has work that it wants to have performed. Since there is no dispute between the parties that there is sufficient work to be performed by a full-time employee, the Union submits the 3 requirement to post is triggered. By failing to post as required, the College has breached the collective agreement. 6. The Union submits that Article 27.11A does more than just set out a procedure for posting; rather it imposes a substantive obligation to post. The Union notes that the posting provision is part of Article 27, which is titled Job Security. The Union submits that the underlying purpose of the posting provision is part and parcel of protecting the integrity of the bargaining unit. Otherwise, the Union states, the College could conceivably eliminate all full- time counsellor positions from the bargaining unit as they are voluntarily vacated. 7. The Union relied on the following authorities: Oil, Chemical & Atomic Workers, Local 9- 599 – and – Tidewater Oil Co. (Canada) Ltd. (1963), 14 L.AC. 233; Horton Steel Work Ltd. – and – United Steel Work Ltd. – and – United Steelworkers, Local 3598, [1973] O.L.A.A. No. 102; Toronto (City) – and – C.U.P.E., Local 416, [2011] O.L.A.A. No. 589; Brant Haldimand Norfolk Catholic District School Board – and – O.S.S.T.F., [2014] O.L.A.A. No. 285; Maplewood Nursing Home Ltd. – and – London & District Service Workers’ Union, Local 220 [1989] O.L.A.A. No. 105; Niagara College of Applied Arts and Technology – and – OPSEU (unreported, June 6, 1995)(Devlin);s and Fernie (City) – and – C.U.P.E. Local 2093, [2000] B.C.W.L.D. 241. 8. The College relies on Article 6, which it submits grants it broad managerial authority to determine how, when, and by whom work is performed. The College submits this authority is not limited by Article 27.11, because there is nothing in Article 27.11 which “specifically” modifies the College’s rights in that respect – the express test for limiting the exercise of management functions. 9. The College notes that in this workplace the same work is performed by various categories of employees (full-time, part-time, and sessional). The collective agreement confirms the College has a managerial right to determine complement, including not only 4 whether work will be performed but also which category of employee will perform that work. The College acknowledges that the parties have specifically negotiated some limits on that right (e.g. Article 2.02, which gives preference to full-time positions over partial-load). The College, however, rejects the notion that Article 27.11 should be interpreted as any sort of limit on the discretionary right to determine who will perform the work. In the College’s view, Article 27.11 is only applicable where the College determines the work will be performed by a full-time employee. 10. In respect of the Union’s concern that the College’s actions could be the precursor to eliminating full-time counsellor positions, the College notes that the collective agreement actually allows the College to contract out work as long as no employee is laid off (see Letter of Understanding Re: 2014-2017 Collective Agreement, dated September 23, 2014). In other words, the parties have already specifically agreed the College can do what the Union is saying Article 27.11 should be interpreted to prevent. 11. The College relied on Elgin (County) – and – S.E.I.U, Local 1 (2015), 249 L.A.C. (4th) 127. IV. ANALYSIS 12. The issue before this Board is whether the College violated Article 27.11 by not posting a full-time position when it was vacated by the incumbent’s retirement. 13. We begin our analysis by noting the proper interpretation of the scope of rights and obligations set out in Article 27.11 must be determined in a manner that is consistent with the the collective agreement as a whole. In particular, Article 6 must be considered, as it stipulates the College retains the right to determine how and to whom work will be assigned. The limits Article 27.11 places on the College’s managerial discretion, and to be clear Article 5 27.11 does place limits on that discretion, must be determined in a manner that respects the interpretation of Article 6. 14. We have reviewed all of the authorities cited by both parties. Some of the authorities cited by the Union focus exclusively on the question of whether there continues to be sufficient work available to warrant the posting of a position. There was no consideration in most of those cases about whether management rights permitted the work to be assigned differently. For that reason, those authorities are of limited value in a workplace such as the one before us, where the College has the managerial right to determine which category of employee will perform the same work. The analysis of whether a vacancy exists cannot in such circumstances be limited to the sole question of whether sufficient work continues to exist. There is no dispute in the instant case that there is sufficient work available that could be assigned to a full-time employee. 15. The question really is whether, in this collective agreement, there is a vacancy when the work has been assigned to other employees. 16. A few of the cases, such as Fernie (City), supra, cited by the Union do find that a breach of the posting provision exists even where work is reassigned to another classification of employees who can also perform that work. 17. We have also considered the decision of Arbitrator MacDowell, who considered most of the authorities cited by the Union. In his case, like the one before us, the union was challenging the employer’s decision to assign work to non-bargaining unit part-time employees rather than posting a full-time bargaining unit position. In our view, he was correct in his conclusion that the obligation to post a full-time position did not override or remove the employer’s right to assign work in accordance with its managerial rights. In his usual manner, Arbitrator MacDowell considered all of the possible arguments that would warrant a different conclusion, including those argued by the Union in this case. 6 18. We adopt all of the reasoning of Arbitrator MacDowell and are of the view it is applicable to the facts in the present case. While his conclusion differs from some of the cases cited by the Union, we respectfully prefer the analysis of Arbitrator MacDowell. 19. There is nothing we could add to the very thorough award of Arbitrator MacDowell. However, for ease of reference, we make the following observations in respect of the case before us. 20. There is no dispute that the College can assign counselling work to full-time, part-time and/or sessional counsellors. In order to accept the Union’s position in this grievance, we would effectively have to conclude that once the College has assigned counselling work to a full-time counsellor, it can no longer make a different assignment. We would have to conclude that the purpose of Article 27.11 is to preserve bargaining unit work limiting the College’s right to make such assignments. 21. However, the language of Article 27.11 does not meet the test of specificity required by Article 6 to override the College’s right to assign work to employees and determine complement amongst various classifications. Article 27.11 simply states that when there is vacancy, it will be posted. It does not address or define how the existence of a vacancy will be determined. If no work has been assigned to a full-time position (and the collective agreement does not require that the work be assigned to a full-time position), then it cannot be said that there is a vacancy. If there is no vacancy, there is no requirement to post. 22. Article 6 is the provision which addresses the assignment of work, and it reserves this task for the College, at its sole discretion. The parties have placed some limits on this discretion (i.e. Article 2). The parties clearly know how to address the issue of assignment of work to different classifications. There is nothing in Article 27.11 which would suggest this is what they were doing in this provision. 7 23. We acknowledge that the College’s actions in the present case are an erosion of the full-time academic bargaining unit. We understand why the Union would be concerned about that. However, in order to prevent that, they must negotiate limits on the College’s managerial rights. They did not do so in Article 27.11. V. DISPOSITION 24. The grievance is dismissed. Dated this 18th day of May, 2016. __________________________ JASBIR PARMAR, Chair “I concur” __________________________ SHERRIL MURRAY, Union Nominee “I concur” ___________________________ ANN BURKE – Employer Nominee