HomeMy WebLinkAboutUnion/Malbon et al 06-04-07
IN THE MATTER OF AN ARBITRATION
BETWEEN: LOYALIST COLLEGE
AND ONTARIO PUBLIC SERVICE EMPLOYEES
UNION, LOCAL 421
AND IN THE MATTER OF A TWO UNION AND TWO GROUP GRIEVANCES
OPSEU FILE NOS. 2003-421-0002 TO 2003-421-0016
.
BOARD OF ARBITRATION: MAUREEN K. SAL TMAN, CHAIR
JACQUELINE CAMPBELL,
COLLEGE NOMINEE
EDWARD SEYMOUR, UNION NOMINEE
APPEARANCES
FOR THE COLLEGE: ROBERT W. LITTLE, COUNSEL
FOR THE UNION: DAvID WRIGHT, COUNSEL
AWARD
There are four grievances in this case, two group grievances and
two Union grievances, all of which arise from a similar set of circumstances,
namely, the contracting out of caretaking services at the College in May 2003.
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The group grievances were filed by Rick Holland, Bruce Jewell, Robert Malbon,
John McPeak, Jeffrey Purchase, Mark Ruckstuhl and Ron Waite.
In or around May 2003, the decision was made to contract out
caretaking services on the midnight shift to a company called UNICCO Integrated
Facilities Services ("UNICCO"). Much of the College's caretaking services were
already being performed by UNICCO. In any event, as a result of the decision to
contract out the midnight caretaking services, notices of layoff were issued to
nine employees (seven of whom are Grievors in this case). The notice, which
was sent to all of the Grievors on May 23, 2003, reads, in its operative portion, as
follows:
Following discussions between the College and the Union through the
College Employment Stability process, it is my duty to inform you of your
layoff from Loyalist College effective August 22, 2003 (Article 15.3.5.2).
I am pleased to report that within two weeks (by June 6) you will receive a
written offer of employment from UNICCO Integrated Facilities Services.
The offer will include comparable terms and conditions of employment.
As you are aware, your options will be as follows:
(a) accept UNICCO's offer of employment;
(b) take an unpaid leave of absence of up to one year, in order
to accept a job offered by UNICCO; or
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(c) elect layoff and receive severance pay (Article 15.5.2) plus
enhanced severance pay as determined through
Employment Stability Committee deliberations.
. . .
In fact, the Grievors did receive offers of employment from
UNICCO. However, the Union submitted thatthe terms and conditions contained
in the offers are not comparable to those enjoyed by the Grievors when
employed by the College, as required by the letter of understanding on
contracting out dated November 16, 2000. That letter reads as follows:
November 16, 2000
Ms Leah Casselman
President
Ontario Public Service Employees Union
100 Lesmill Road
North York, Ontario
M3B 3P8
Dear Madam:
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.
An employee given notice of layoff or reassignment as a result of his/her
work being contracted out may elect to take an unpaid leave of absence of
up to one (1) year, in order to accept a job offered by the contractor. The
leave will begin on the date that the employee commences employment
with the contractor. If the employee wishes to return to the College,
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he/she must provide at least one hundred and twenty (120) calendar days
written notice of his/her intention to return at the end of the leave.
The College will then apply Article 15.4.3, as appropriate. If no position
can be identified pursuant to Article 15.4.3, no new notice of layoff under
15.4.4.1 need be provided to the employee.
The College will not provide wages or benefits to the employee during the
leave.
This letter of understanding will expire on August 31,2003, but should the
parties not have reached 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.
Yours truly,
I. McArdle
Executive Director
Council of Regents
Pursuant to the letter, three of the Grievors (Messrs. Jewell,
Purchase and Waite) accepted the offers of employment with UNICCO. The
other four (Messrs. Holland, Malbon, McPeak and Ruckstuhl) exercised their
option to elect layoff and severance pay.
As the Union candidly conceded, there is no prohibition in the
collective agreement against contracting out. Nonetheless, the parties have
agreed to a restriction on contracting out, namely, that no bargaining unit
member who has completed the probationary period will be released from the
employ of the College as a direct result of the contracting out of the employee's
work, with one exception. That exception, which is set out in paragraph 2 of the
letter of understanding governing the matter, provides that "contracting out to an
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employer who will employ the employee with comparable terms and conditions of
employment is not a breach of this letter of understanding".
While the Union agreed that certain terms and conditions of
employment are comparable to those under the College collective agreement,
the Union submitted that, on the whole, UNICCO did not offer comparable terms
and conditions of employment. More particularly, the Union asserted that (1) the
terms and conditions which were covered in the offers of employment are not
comparable to the terms and conditions under the collective agreement with the
College; and (2) the offers of employment did not include a large number of
terms and conditions which are covered in the collective agreement.
As to those terms and conditions which were covered in the offers
of employment, the Union accepts that, for the most part, the wages and benefits
are comparable to those provided for in the collective agreement. In this regard,
although there was initially a dispute as to the comparability of certain benefits,
the Union was advised by letter dated March 28, 2005 that UNICCO had agreed
to provide overtime in accordance with the provisions of Article 6.2 of the
collective agreement; an extension of parental leave for adoption in accordance
with Article 12.3.3; and bereavement leave on the same terms as Article 12.5
(although supporting proof may be required). As well, the Union advised at the
hearing that it was satisfied as to the comparability of the short-term disability,
long-term disability and dental benefits included in the offers of employment.
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(Moreover, although the original offer included a seven-day waiting period for
short-term disability benefits, as UNICCO subsequently agreed to pay short-term
disability from the first day of absence, the Board was advised that Messrs.
Purchase and Waite would be reimbursed for any losses incurred as a result of
the imposition of the seven-day waiting period.)
Notwithstanding that the offers were improved with respect to a
number of benefits, the Union took the position that the improvements were
made too late to be taken into account by the Grievors in deciding whether to
accept the offers of employment, which constitutes a violation of the letter of
understanding.
Finally with respect to the terms and conditions which were
included in the offers of employment, the Union claimed that there was a
deficiency in the area of retirement benefits. In this regard, the Union submitted
that the group registered retirement savings plan ("RRSP") under which UNICCO
agreed to match the first 6% of employee contributions is not comparable to the
College pension plan under which employees have a guaranteed pension based
on years of service. The Union submitted that under the College pension plan,
the risk is borne by the plan, whereas under a group RRSP the investment risk
is borne by the employees and the amount of the benefit depends on the rate of
return of the plan.
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Even more significant, according to the Union, than the terms and
conditions which were included in the offers of employment are those terms and
conditions contained in the collective agreement which were not included in the
offers. Included in this category are
1. the protections in Article 4.5 of the collective agreement from being
required to perform work of a personal nature;
2. protections for hours of work (apart from confirmation that the normal
hours of work will be 40 per week and that overtime will be paid in
accordance with Article 6.2). In particular, and without being exhaustive,
the Union identified retention of existing of hours of work (the so-called
"grandparenting" provision) (Art. 6.1.2) and provisions respecting shift
schedules (Art. 6.3), call backs (Art: 6.4), and meal allowances (Art. 6.5)
as having been omitted from the offers;
3. lead hand premiums (Art. 7.6);
4. entitlements in relation to education (apart from the provisions of Article
9.4, which the College has agreed to extend to the Grievors). Omissions
identified by the Union include professional development days (Art. 9.5);
5. vacation scheduling (Art. 11.5);
6. personal (Arts. 12.1 and 12.2) and prepaid leaves (Art. 12.8);
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7. health and safety protections (apart from Article 13.2.1.1, as UNICCO has
agreed to the payment for protective footwear, if required);
8. seniority-based job security and layoff/recall protections (Arts. 14 and 15.
respectively);
9. evaluations (Art. 16);
10. job posting and promotion protections (Art. 17);
11. grievance rights (Art. 18); and
12. the various rights in the letters of understanding and appendices to the
collective agreement; in particular, the letter of understanding on
contracting out, which would afford protection from further contracting out
of the Grievors' work unless comparable terms and conditions of
employment were extended.
In support of its position for the inclusion of largely non-monetary
terms and conditions, the Union maintained that the phrase "terms and
conditions of employment" is broad and unrestricted and that the largely non-
monetary items which were improperly excluded from the offers are as much
terms and conditions of the Grievors' employment as are monetary items. In
fact, the Union emphasized the importance to the Grievors of job security and
layoff protections and grievance rights. As well, the Union submitted that (1) the
Colleges Collective Bargaining Act ("CCBA") requires that the parties bargain in
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good faith and make every reasonable effort to conclude a collective agreement
covering terms and conditions of employment which are negotiable under the
Act, (2) Section 3 of the CCBA stipulates, in effect, that all terms and conditions
of employment are negotiable, except for superannuation, without distinguishing
between monetary and non-monetary terms; (3) the parties could not have
intended that the phrase "terms and conditions of employment" be given a less
expansive meaning under the collective agreement than under the CCBA; and, in
any event, (4) the general labour relations understànding is that terms and
conditions of employment include a broad range of employment-related matters,
which include, but are not restricted to, wages and benefits.
As to the matter of retirement benefits, in particular, the Union
conceded that the term "superannuation" in Section 3 of the CCBA is
synonymous with pension, which is a form of retirement benefit. As the letter of
understanding covers all terms and conditions of employment, and not just those
which are negotiable, the Union submitted that retirement benefits must be taken
into account in assessing the comparability of the offers of employment. In the
result, the Union submitted that the letter of understanding appended to the
collective agreement requires that the contractor offer terms and conditions of
employment comparable to those contained in the collective agreement,
including job security, retirement benefits and grievance rights, among others.
But there is no requirement under the letter of understanding that the contractor
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be unionized or that it offer terms and conditions of employment that apply
specifically to unionized employees.
As the offers of employment received by the Grievors were not
comparable, the Union requested that the Board find that the notices of layoff
were invalid and ought to be rescinded and that the Grievors be compensated for
any losses incurred as a result of their improper layoffs.
For its part, the College submitted that the terms and conditions
contained in the offers of employment are comparable to those contained in the
collective agreement; that the Union accepts that wages and benefits contained
in the offers are comparable; and that the Union's argument is tantamount to
requiring that the College extend the provisions of this collective agreement, or at
least the trappings of a collective agreement, to the Grievors. However, the
College submitted that there is nothing in the letter of understanding which
requires the continuation of this or any other collective agreement by the
contractor. What is required is the extension of comparable termsand-conditions
of employment. However, the College submitted that "comparable" does not
mean equal and, in fact, contemplates something less than equality. As well, it
was submitted that the test of comparability must be an objective one, measured
qualitatively (as opposed to quantitatively) and on a global (Le., comprehensive)
basis. In other words, the College submitted that the onus is on the Union to
demonstrate that the terms and conditions of employment in the offers of
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employment, taken as a whole, are qualitatively and demonstrably inferior to
those found in the collective agreement.
Nonetheless, it was submitted that the Union failed to discharge
that onus, as the terms and conditions offered by the contractor are substantially
the same as those provided by the College. More particularly, the employees
perform the same job in the same location. They work the same number of
hours at the same hourly rate. They enjoy the same health and welfare benefits
(extended health care, vision care, dental coverage, life insurance, short-term
disability, long-term disability) and the same rights to vacation, holidays,
bereavement leave, pregnancy and parental leave and overtime, as well as the
benefit of. a contribution to a group RRSP. Admittedly, they do not have
retirement benefits in the form of a pension. However, by operation of law,
pensions, being synonymous with superannuation, are not negotiable between
the parties and cannot be included within a collective agreement. Pensions,
therefore, cannot be considered by a Board of Arbitration which derives its
jurisdiction from the collective agreement. Accordingly, the College submitted
that pensions are excluded from the terms and conditions of employment the
Board is entitled to take into account in considering comparability under the letter
of understanding on contracting out. As to the terms which can be considered,
the College submitted that on a commonsense analysis, these are the same as
those provided by the College; the rest, it was submitted, are peripheral.
11
'Moreover, the fact that the Grievors are not covered by a collective agreement is
arguably not detrimental and, in any event, is irrelevant to this analysis.
In fact, with respect to the alleged deficiencies cited by the Union,
the College submitted that most have no application or, even if they have
application, represent no loss to the Grievors. More particularly, the College
submitted that
1. there was no evidence that the Grievors had ever been required to
perform work of a personal nature during their period of employment with
the contractor (Art. 4.5);
2. Article 6 deals with matters which have no application to the Grievors;
3. lead hand premiums (Art. 7.6) have no application to the Grievors;
4. the contractor extends the right to take courses to the Grievors and will
consider requests for educational leave on a case-by-case basis.
Moreover, there was no evidence that the other provisions of Article 9, and
Article 9.5, in particular, were of value to the Grievors;
5. although UNICCO uses a different method of vacation scheduling,
vacation scheduling based on seniority would not necessarily be beneficial
for the Grievors who accepted the offers, but had significantly different
seniority at the time of layoff (Mr. Waite, 26 years; Mr. Purchase, 13%
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years; and Mr. Jewell, 3% years). More particularly, seniority-based
vacation scheduling would advantage senior employees to the detriment
of junior employees;
6. there was no evidence that any of the Grievors participated in, or even
sought to participate in, the prepaid leave plan (Art. 12.8);
7. although the Occupational Health and Safety Act applies to UNICCO, it
would appear that the specialized provisions of Article 13 have no
application to the Grievors;
8. although the Union asserts that the layoff protections are of critical
importance, there is no demonstrable advantage of a seniority-based
layoff system for only three employees. Moreover, such a system
determines the order of layoff, which would advantage senior employees
over junior employees. In any event, if the senior employee were to be
laid off, he would retain his common law right to sue for wrongful
dismissal, which might represent an advantage over. his collective
agreement rights. In any case, had the parties intended to extend
collective agreement rights to employees of the contractor, they would
have done so expressly;
9. UNICCO has an evaluation system;
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10. job posting procedures would advantage some employees and
disadvantage others. In any case, the parties made no provision for the
continuation of a collective agreement regime; and
11. UNICCO has a written complaint process which progresses to
successively higher levels of management, but does not provide for
access to binding arbitration.
In any event, the College submitted that the letter of understanding
does not require a comparison of individual terms and conditions of employment,
but rather a global comparison and that, from a global perspective, it has not
been proven that the terms and conditions of employment offered by the
contractor are demonstrably deficient. But even if a comparison of individual
terms and conditions were required, it has not been demonstrated that the
omission of any particular term or condition (the example cited was seniority-
based layoff) represents a reduction in rights, as this provision would benefit
some of the Grievors, but not others. In any event, the letter of understanding
does not require the extension of collective agreement rights, such as seniority-
based layoff, to employees of the contractor. Instead, to the extent that collective
agreement rights were not extended, the contractor has provided different rights,
which are comparable to the rights accorded under the collective agreement.
In summary, the College submitted that even on a comparison of
individual terms, the terms and conditions offered by the contractor are
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comparable to those provided by the College. The College further submitted that
to the extent that some terms might not be comparable, it would be necessary to
consider whether other terms were offered in exchange, and then to consider
whether, on a global analysis, the terms and conditions offered by the contractor
are comparable to those provided by the College. But the comparison must be
made on an objective basis; rather than a subjective one which would favour the
continuation of a collective bargaining regime, as the parties did not agree in the
letter of understanding to an extension of the collective agreement or even to the
continuation of a collective bargaining regime.
The Union submitted, by way of reply, that although the College's
position purports to be based on an objective analysis, it is highly subjective.
However, the Union submitted that it is not open to the College or the Board, for
that matter, to impose its views as to the merit of particular terms and conditions
of employment. Rather, the Board must accept the terms and conditions in the
collective agreement as it finds them in determining whether the terms and
conditions which were offered by the contractor are comparable. In any event,
the fact that the Grievors have never accessed certain protections afforded by
the collective agreement does not mean that these protections are not of value to
them. As to the argument that there is no demonstrable advantage in
implementing a seniority-based layoff system for only three employees, the
Union submitted that the protections of seniority-based layoff extend beyond the
benefits of relative seniority.
15
The Union further submitted that the letter of understanding does
not provide for the Board to engage in a global analysis of whether the terms and
conditions offered by the contractor are comparable to those provided by the
College; but that, in any case, such an analysis is not required in this case as the
non-monetary terms in the collective agreement were not included within the
offers of employment from the contractor.
Decision
The issue in this case is whether the College violated the letter of
understanding on contracting out which is appended to the collective agreement.
For ease of reference, the material portion of that letter is reproduced as follows:
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.
An employee given notice of layoff or reassignment as a result of his/her
work being contracted out may elect to take an unpaid leave of absence of
up to one (1) year, in order to accept a job offered by the contractor. The
leave will begin on the date that the employee commences employment
with the contractor. If the employee wishes to return to the College,
he/she must provide at least one hundred and twenty (120) calendar days
written notice of his/her intention to return at the end of the leave.
16
The College will then apply Article 15.4.3, as appropriate. If no position
can be identified pursuant to Article 15.4.3, no new notice of layoff under
15.4.4.1 need be provided to the employee.
The College will not provide wages or benefits to the employee during the
leave.
. . .
The letter of understanding contains a strong restriction on
contracting out. More particularly, the letter provides, in the first paragraph, that
no bargaining unit member who has completed the probationary period will be
released from the employ of the College as a direct result of contracting out of
the employee's work. However, there is an exception to this restriction in the
second paragraph, namely, that contracting out to an employer which will employ
the employee with comparable terms and conditions of employment is not a
breach of the letter of understanding.
At issue is whether the College brought itself within this exception,
i.e., whether the terms and conditions of employment offered by the contractor
are comparable to those enjoyed by the Grievors when employed by the College.
In this regard, the Union accepted that, apart from pensions, the wages and
benefits contained in the offers of employment are comparable to those provided
for by the College. However, the Union claimed that once pensions are taken
into account, even the monetary items are not comparable. The College's
response was twofold; (1) as pensions are non-negotiable, they cannot be taken
into account by the Board in assessing comparability of the offers of employment;
17
and, in any event, (2) the Board does not have sufficient evidence to conclude
that the retirement benefit offered by the contractor (a 6% matching contribution
to a group RRSP) is comparable to the College pension plan.
By operation of law (CCBA, S. 3), pensions, being synonymous
with superannuation, are not negotiable between the parties: see Re Algonquin
College and Ontario Public Service Employees Union; Grievance of Stafford,
November 16, 1981 (Weatherill (unreported»; Re Ontario Council of Regents
and Colleges of Applied Arts & Technology (Fanshawe College) and Ontario
Public Service Employees Union; Grievance of Hopkins, January 19, 1982
(McLaren (unreported», quashed on other grounds (1984), 44 O.R.(2d)545 (Ont.
Div. Ct.), sub nom Re Board of Governors of Fanshawe College of Applied Arts &
Technology and Ontario Public Service Employees Union et al.; Re Mohawk
College of Applied Arts & Technology and O.P.S.E.u., (1996), 55 LA.C.(4th)253
(H.D. Brown). On its face, however, the letter of understanding contemplates the
comparison of terms and conditions of employment, and not just those terms and
conditions that are negotiable. Accordingly, although it may not be that every
gratuitous benefit must be factored into the comparison; pensions are neither
gratuitous nor trivial. It would seem appropriate, therefore, that pensions be
taken into account by the Board in assessing the comparability of terms and
conditions offered by the contractor and the College. As a practical matter,
however, the Board was presented with insufficient information as to the relative
18
merits of the contractor's contribution to a group RRSP and the College pension
plan to make that assessment.
But even if the assessment could be made, the Union submitted
that wages and benefits were not comparable at the time the offers were made
and that, although these items were subsequently improved, the improvements
were made too late to be taken into account by the Grievors in deciding whether
to accept the offers of employment, which constitutes a violation of the letter of
understanding. In fact, it was unclear whether the offers were improved or
merely clarified subsequent to their initial presentation. Nonetheless, it seems
clear from the wording of the second paragraph of the letter of understanding,
which is couched in the future tense ("contracting out to an employer who will
employ the employees with comparable terms and conditions of employment"),
that an offer must be comparable at the time it is made so that the employee may
make an informed decision as to whether to accept it; as acceptance of the offer
may effect the employee's release from the employ of the College (although it
would appear possible for the employee to take an unpaid leave of absence for
up to a year to accept the offer and retain bumping rights should s/he wish to
return to active employment with the College). In any event, in order that the
employee may assess the various options, the test of comparability must be
applied at the time the offer is made and without the benefit of subsequent
improvements.
19
It would appear that any improvement or clarification to the offers
was exclusively monetary. Other than monetary items, however, the offer was
lacking in non-monetary items. Notable among the omissions were seniority-
based protections (including protection from layoff and job posting procedures)
and access to arbitration. Although the College submitted that it would have
been impractical to provide these benefits for only three employees, the offer was
made to nine employees, all of whom could have accepted it. Had they done so,
the practicalities would have looked different. In any event, access to arbitration
and seniority-based protections, which affect job security and the potential for
advancement, among other matters, were fundamental features of the Grievors'
employment with the College.
Although the College questioned the utility of these protections,
some of which had never been accessed by the Grievors; these are contingent,
but important, benefits, which were available to be accessed, should the need
arise. In any event, it is not open to the College, or even the Board, to impose its
subjective views as to the value of these benefits. Rather, the Board must
accept the terms and conditions of the collective agreement as it finds them and
attempt to assess, on an objective basis, whether the terms and conditions
offered by the contractor are comparable to those contained in the collective
agreement.
20
While there was some issue as whether the comparison should be
made between individual terms and conditions of employment or on a global
basis, it is not necessary to decide that issue as, in this case, the offers were so
deficient in non-monetary terms Gob security, access to arbitration, etc.) that in
no way could they be considered to be comparable. In other words, this is not a
case in which wages and benefits were markedly better than those found in the
collective agreement; in which case, it might be argued that job security was less
important.
The Board recognizes that the exception to the restriction on
contracting out set out in the letter of understanding does not require that work
be contracted out to a unionized employer. Nonetheless, by requiring that the
contractor offer comparable terms and conditions of employment (comparable
being more or less the same, although not equivalent), the parties have set an
extremely high standard for the College to meet in order to bring itself within the
exception. In fact, had the collective agreement not contained such excellent
terms and conditions of employment, the College could more easily have fit
within the exception. However, the benchmark is the terms and conditions in the
College collective agreement and, in whatever manner the comparison is done in
relation to that benchmark (on a global basis or by matching individual terms and
conditions of employment), the contractor's offer was deficient.
21
In the result, the Board finds that the College violated the collective
agreement in contracting out the caretaking services on the midnight shift to a
contractor which did not provide comparable terms and conditions of
employment. Apart from a declaration to this effect, the Board remains seised
with respect to other remedies.
7TH f ~~~I~\2aob
DATED AT TORONTO, this day o~ ,.,er, 2005.
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If ~~::./~----"_. j~<,., ,:_~,/4...:~,,-. -"'-'-"..~. --.--
Chair
See Dissent Attached
College Nominee
"Edward Seymour"
Union Nominee
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DISSENT
I respectfully must disagree with the majority award on this matter. In my opinion, the
Board's award is not correct with respect to whether the offers were comparable at the time
such offers were made and fl'1C)re importantly whether these offers of employment were
comparable to the terms and conditions of employment afforded the grievers at the College.
With respect to the timing issue, the Board heard evidence that following receipt of the
grievances the College sought to obtain particulars from the Union concerning the grievors'
concerns. There was considerable delay ( eight months) before the Union provided any
detàils as to its concerns. The College's response as outlined in the March 28,2005 letter
clarified and confirmed the offer regarding terms and conditions of employment with the
Contractor. The Board has concluded the " it was unclear whether the offers were
improved or merely clarified subsequent to their initial presentation n. In my opinion, the
evidence submitted by the Employer did not lead to the conclusion that the offers were
either improved or that the toons and conditions were somewhat altered. While the Board
has indicated that employees should be able to make an infonned decision at the time
offers are made, I would note that the Letter of Understanding regarding contracting out
makes no reference to offer letters or to the process by which employees transfer to the
Contractor. Surely, a sensible approach would be that a griever or the Union should identify
any concerns at the earliest possible time so that these concerns can be addressed
promptly. Failure to do so may lead to grievances where the Union assumes that if it can
identify an employment term that appears to be deficient even if the College or Contractor
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could have and would have remedied the deficiency promptly, it then çan then rely on the
arbitration process to deal with the concern. Such an approach would be unfair both to the
employees and to the College. In this case, the Union's failure to identtfy, in a timely
manner, its concerns regarding the comparability of the Contractor's offers of employment
was contrary to the employees' interests and prejudicial to the College.
I have even greater concerns regarding the Board's conclusions with respect to the
comparability issue. The award recognizes that 8comparable- terms and conditions of
employment do not mean "identical" or l1equal"terms and conditions of employment. The
new employer is therefore not required to match each pre-existing term and condition.
The award concludes that the offers made to the grievers were deficient in certain non~
monetary areas specifically in relation to job sea.uity and access to arbitration. We did not
hear any evidence that these particular non~monetary terms and any particular impact in
this case . The issue therefore must be whether, when viewed objectively, the absence of
these terms means that the offers could not be considered to be comparable. In that
regard, I have two significant concerns about the majorityls conclusions.
First, I to not think that all tenns and conditions employment should be given equal weight.
Whi Ie terms and conditions relating to wages, benefits, nature of work performed, hours of
work, location of work, etc. have a direct impact on employees, other terms and conditions
may never be utilized by employees and therefore should be given significantly less weight
,
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For example, job security provision and related seniority based; protections Co~1d
disadvantage some employees. þ.s pointed out by the College's counsel during the' hearing,
tQß impact on. the three empløyeeS in this case would þe minimal. They would ~vide ~~
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advant~geto the most senioremptoyee, no advantage to the middle employeeand..8
disadvantage, to the.jynior employee.
Similarly, access: to ~rbitration must be vieWed as providing only a speculative advantage.
It assumes that them will be workplace diSpuJ,es that cannot be resolved without
adjudication; It is fair to ss.y that the majQrity of employees spend their enti~ working live~
withOut ever utU~ arbitration, eve if assup1ing that arbitration is ~ more advantSgeous
~ri{Jht" - w,r,en view~(~ta.s. a totaLpackage;- the. absence of these rights is marginal at best.
In . fact.. when viewed by. any objectiV&standarè 9f -gIobaJ" com~ '. the p8ckage
offered to these employees with, the same generous wage and benefit provisìons , would
be cOnsidered to be II comparable".
An even more troubling concern is that the Board's conclusion necessarily means that
oontracting out under U1ís Collective Agreement can only occur if the contractor has or puts
a coUecUve agreement in p~ace. The award states that-the collectjve agreement.does-not-
require that work be contracted out to 8 unionized employer. Since job security provisions
and access to ~rbitration are only found in collective agreements, the assumption must be
that contracting out can only be to a unionized employer. The Coflege made submissions
in this regard and argued that this case is substantially diffe!rent from other collective
FROM :AWJ1 FAX NO. :9057634022 Mar. 30 2006 10:04AM P1
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agreemeotsin. the...br~ pub!ic.sector. In pa~dar> ~.W8$ ~e!ø tbe cø!'~ve
agreement$ in the hospital sector, where the. parties have Clearly. identified. that a.collective
, agreemen~ environment was to ~,continued. In l~ Co!~ sector. the Parties have not
don$ ~ç. FrQrn ~ la~~r "$1$!Îpns parß~¡Ye, t.h~ ~oa.r~ shouJd h~v~ ~~ni.~ed ~h~~ very
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significant differences in language betWeen the'two sectors and nOt provi~ through'
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arbitration something that the parties did not agree to in negotiations.
Finally, I believe that a reasonable interpretation of the terms and cOnditions offered to
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these employees, i.a . performing the' same job, working at the same Joc.ation, oominoing
the same hours ofworlr., eam,o!J the. ~~ .~ .rate,~Mng . the same be~g.Œ,
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,mt!ldJC$l.I, .life in$.u.r~n~, va~tipn~nc;i hølid$Y$.~c..~. wø.u ~ .be. tbat ,they: ~~.. .ppInpal:fl.ble8,
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They ~y nm,~ .~l1ticaJ .01' Rqual buUœy.8.œ .oo~ø w.i1bin the .in$miogæd,.intent
of the C.oHective Agœarne.nt. ,! wDJ1!.d .have ;therefo~e .have dÏ$mis"sed t~e grievances.
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EmPloyer Nominee
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CHAIR'S ADDENDUM
Although there are differences between the dissent and the majority
award, these are addressed, for the most part, in the majority award and need
not be repeated. Nonetheless, it should be noted that
(1) with respect to the "timing" issue, the dissent suggests that the letter of
understanding on contracting out makes no reference to "offer letters" or
the process by which employees of the College come to be employed by
the contractor. However, the letter of understanding refers expressly in
the third paragraph to a job "offered" by the contractor. Moreover, taken
as a whole, the letter contemplates that employees of the College will be
offered employment with the contractor and that these offers will be
accepted or rejected by the employees. It is precisely because the
employees must decide whether to accept or reject the offers (with the
attendant consequences) that the majority of the Board concluded that the
offers must be comparable at the time they are made.
Furthermore, even if there were some basis upon which to conclude that
an offer could be improved up to the effective date of layoff; the offers in
this case were time-limited (i.e., employees had no more than three weeks
in which to accept the offers). Therefore, it would seem that the contractor
would have had to have improved (or clarified) the offers by the earlier of
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the date established by the contractor for acceptance of the offers and the
date on which the first employee responded to an offer. Moreover, once
the grievances were filed, the College was on notice that the employees
and the Union considered that the offers were not comparable and, on its
own initiative, the College ought to havè reviewed the offers with the
contractor to satisfy itself as to the issue of comparability.
In any event, as it turned out, the offers were not comparable on the date
they were presented or on the date established by the contractor for
acceptance of the offers. In fact, the majority has found that the offers
were not comparable even as of the date of the hearing; and
(2) while the Board recognizes that the non-monetary terms which were
omitted from the contractor's offers are more commonly provided in the
context of a collective agreement, this is not necessarily so. There are
contracts in the non-unionized sector with, for instance, dispute resolution
mechanisms. In any event, the Board is bound by the parties' agreement,
which mandates comparable terms and conditions of employment without
restricting comparability to monetary terms.
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Chair