HomeMy WebLinkAboutUnion 16-12-21IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT, 2000, S.O.
2008, CHAP. 15;
BETWEEN:
Sault College
(the "College")
-and-
Ontario Public Service Employees Union, Local 613
(the "Union")
(Union Grievance re: Job Posting)
BEFORE: Christine Schmidt, Sole Arbitrator
APPEARANCES
For the College: Daniel Michaluk, Counsel
Rick Webb, Director Human Resources
Janice Beatty, Vice President of Corporate and Student
Success
Angeline Lemay, Dean, Community Services,
Interdisciplinary Studies, Curriculum and Faculty Enrichment
For the Union: Tim Hannigan, Counsel
Frank Turco, Chief Steward
Bob Allen, Vice President, Local 613
Lynn Dee Eason, President, Local 613
This hearing was held in Sault Ste. Marie on June 9 and November 30, 2015 and
February 26 and December 1, 2016.
2
mWiTI r
I was appointed to hear a Union grievance fled on October 1st, 2014, alleging
that the College had violated the Academic Collective Agreement between the College
Employer Council (the Council) for the Colleges of Applied Arts and Technology and
the Ontario Public Service Employees Union (For Academic Employees). The
grievance before me cites articles 27, article 1 and "possibly others" - by failing to post
and hire a replacement for Karen Deluco ("Ms. Deluco"), a full-time professor, who
retired in June 2014.
The collective agreement under which I was appointed runs from September 1,
2014 through September 30, 2017.
The parties agree that Ms. Deluco's position was not filled when she retired in
June 2014 and that no fulltime position was posted, instead the work Ms. Deluco would
have been performing in September 2014, had -she not elected to retire, was
distributed among non full-time partial load and sessional employees.
As part of the sharing of information required between the College and the
Union, a list of other than full-time employees hired by the College is provided in
September, January and the end of May for each of the three academic terms in any
given academic year. Providing this list allows the Union to determine whether, in its
assessment, the College has complied with article 2 of the collective agreement,
dealing -with staffing. Upon reviewing the list in September 2014, the Union believed
that, in hiring other than full-time employees in August 2014 to perform Ms. Deluco's
assignment of work, the College had violated article 2. The Union then filed the present
grievance at the beginning of October 2014.
3
The relevant collective agreement provisions provide:
Article 2
STAFFING
2.01 ...
2.02 The College will give preference to the designation of full-time positions
as regular rather than partial -load teaching positions, as defined in
Article 26, Partial -load employees, subject to such operational
requirements as the quality of the programs, their economic viability,
attainment of the program objectives, the need for special qualifications
and the market acceptability of the programs to employers, students and
the community.
2.03 A The College will give preference to the designation of full-time positions
as regular rather than sessional positions including, in particular,
positions arising as a result of new post -secondary programs subject to
such operational requirements as the quality of the programs, their
economic viability, enrolment patterns and expectations, attainment of
program objectives, the need for special qualifications and the market
,acceptability of the programs to employers, students and the community.
The College will not abuse sessional appointments by failing to fill
ongoing positions as soon as possible subject to such operational
requirements as the quality of the programs, their economic viability,
attainment of program objectives, the need for special qualifications, and
enrolment patters and expectations.
Article 27
JOB SECURITY
POSTINGS
27.11 A 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 . [website:
http://ontariocollegeemploDment.cal.
Evidence was heard over three days. In final argument on December 1, 2016,
the Union acknowledged that since the previous day of hearing on February 26, 2016,
a decision involving a grievance between these same parties had been issued by
4
Arbitrator Parmar. That decision undermined the primary argument the Union had
intended on advancing before me: that article 27.11 of the collective agreement,
without consideration of article 2, required the College to post the "vacancy" created by
Ms. Deluco's retirement.
The Union accepts Arbitrator Parmar's decision and that the determination
made by her means that the grievance before me cannot succeed based on an alleged
violation of article 27.11 alone. In light of Arbitrator Parmar's decision, it is article 2 of
the collective agreement that became key to the Union's grievance, and to succeed on
the merits of this case, the Union must prove that article 2 was violated by the College.
The Union therefore advanced what it had initially intended advancing as an
alternative argument. The College was obliged, the Union argues, to post Ms. Deluco's
positions as a full-time position because articles 2.02 and 2.03 (A) of the collective
agreement give preference to the designation of full-time positions rather than partial
load teaching positions and sessional teaching positions subject operational
requirements. The Union argues that there was a full-time body of work for both the fall
term in 2014 and the winter term in 2015 — which would have been taught by Ms.
Deluca but for her retirement -- and that the College failed to give preference to the
designation of a full-time position contrary to article 2.
The difficulty with the Union's position is that for the duration of the collective
agreement under which I was appointed (and the collective agreement under which
this grievance was filed) there is a moratorium, described below, that precludes the
filing of grievances alleging violations of Article 2.02 and 2.03 A on or after September
1, 2014.
By letter dated September 23, 2014, which the parties agree has retroactive
application to September 1, 2014, the College Council and the Union agreed to the
following:
5
RB: 2014-2017 Collective Agreement
For the duration of the existing collective agreement, the parties agree to:
(i) No full time 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 or her work.
(il) No grievances alleging a violation of Article 2.02 and 2.03 A shall be filed on or
after September 1, 2014.
The Union acknowledges the moratorium on the filing of article 2 grievances on
or after September 1, 2014. However, it argues that the events giving rise to the
grievance, namely Ms. Deluco's retirement, occurred in June 2014 - prior to the
moratorium coming into effect. The Union says that the College's obligation to replace
Ms. Deluco's position and post a full-time position arose or "crystalized" at the time of
her retirement. The Union urges me to find a violation of article 2 based on the
College's failure to give preference to the designation of full-time positions as therein
required.
The Union directs me to two unreported decisions, Fanshawe College and
OPSEU (O.B. Shime, February 6, 2002) and Loyalist College and OPSEU, (M.G
Picher, November 20, 2002) - both article 2 cases. In neither case were the boards of
arbitration persuaded that the operational requirements proffered by the Colleges for
not filling vacancies created by the departure of full-time employees with full time
replacements by the following academic term were valid considerations. Accordingly,
the grievances were allowed in each matter.
In the Loyalist College case, where the full-time employee retired in mid-
November 2001, the Arbitrator expressed the view that "the more than 6 week period
which was available to the College before the commencement of the winter term of
2002" was more than sufficient time to decide about posting the position and to comply
with the posting requirement under article 27.11 so that the position could be filled by
the commencement of the following term in January 2002.
Quite apart from the inherent timeliness problem that arises if the union's
position were to be accepted, my view is that the article 2 cases provided to me simply
stand for the proposition that if the grievance filed by the Union in this case were to be
successful on an article 2 analysis, the College would have been obliged to fill Ms.
Deluco's position with a full-time replacement by the commencement of the fall term —
that is by the start of the academic year in September 2014.
The Union also relies on two cases in which boards of arbitration were not
prepared to interpret new provisions in collective agreements under which they were
appointed as applicable to events occurring before the new collective agreements
came into effect: Re Canadian Canners Ltd. and International Association of
Machinists (1973), 4 L.A.C. (2d) 59 (Skiff) ("Canadian Canners") and Bell Canada v.
Communications Workers of Canada (1984) L.A.C. (3d) 27 (Picker) ("Bell'). The Union
argues that these cases are analogous to the case before me.
I do not read the cases provided to me as being analogous to the circumstances
of this case.
In Canadian Canners the grievor was the unsuccessful applicant in a job posting
case. The renewal collective agreement under which the grievance was filed contained
a new provision that effectively disqualified the grievor from competing for the position
based on his voluntary withdrawal from a training program during the operation of the
previous collective agreement. Under the previous collective agreement, the grievor's
withdrawal from the same program would not have had the same serious consequence
as it did under the renewal collective agreement.
The Union successfully argued that the disqualifying provision could not apply to
the grievor except by an impermissible retroactive reading, After reviewing a number of
awards, the board of arbitration wrote the following:
... The reasoning in most if not all of the awards cited yields a standard of
interpretation important to our consideration to the present grievance: when a
new collective agreement supersedes a predecessor agreement, in the absence
of compelling language in the new collective agreement arbitrators will not read
the new provisions as applicable to events occurring before the date of the now
agreement's execution if the effect of the retroactive reading would be absurd or
would unfairly disappoint the reasonable expectations of those who had been
subject of the previous provisions of the predecessor.
The board of arbitration in Canadian Canners went on to analogize the facts of
the case before it to a hypothetical example where an employee's discharge for
conduct which arose during the operation of, and is clearly not cause for discharge
under, the previous collective agreement is transformed to a discharge for cause under
the terms of a new provision in the renewal collective agreement. Clearly, to apply the
new standard to the circumstances as they used to exist would, in the absence of plain
and express language, be unjust.
In Beit, the grievor was deprived of an opportunity to compete for a job posting
because he had, under the predecessor collective agreement, been the successful
applicant for a position. The employer in that matter invoked a new provision under the
renewal collective agreement which seriously restricted the scope of job opportunities
available to the grievor for a significant period of time following his last promotion.
Under the- previous collective agreement, the grievor was not faced with similar
restrictions. -Arbitrator Pieher wrote:
8. The issue in this grievance is the interpretation to be given to article 10.07 (g)
of the collective agreement. It is a new provision which came into effect on March
22, 1982. The Company has acted pursuant to a strict interpretation and
application of that article to the circumstances of the grievor. It maintains that on
a plain reading of the article he is not entitled to file an application "in the 24
months subsequent to his appointment to a position resulting from a 912B
application." -
The Union argued that to construe the particular article as the Employer had
would be to apply the article erroneously and retroactively, in a manner that was not
consistent with the intention of the parties. Arbitrator Picher agreed:
M
22 When the grievor accepted the position which he assumed in June 1981,
he did so without in any way jeopardizing his future advancement. The two-year
freeze on further job positions negotiated into the collective agreement did not
then exist. The griever's career options were pursued and his expectations
formed in light of the different terms and conditions of employment which
governed at that time. Did the parties intend employees in the griever's
circumstances to be caught by the literal application of the new rule to them?
While we agree that it was open to the parties to give retroactive application to
the two-year freeze position, we also accept the submission of the Union that we
should not conclude that they did so, absent clear and compelling language to
that effect.
The Canadian Canners and BeN decisions dealt with the interpretation of new
collective agreement provisions that were applied by employers unjustly to individual
grievers who had made prior choices based on different terms of employment. Having
made certain choices under those terms of employment the grievors could not have
then appreciated the potentiai negative impact of those choices on the future exercise
of their rights. In both cases, an examination of the new collective; agreement language
led the boards of arbitration to find that the intent of the parties was that the provisions
at issue had prospective application only.
Although I take no issue with the analysis and results in the above-described
arbitration awards, I am unable to accept that they have any application to the
circumstances of this case. Unlike the situations in those cases, I am not really being
called upon in this matter to interpret a new collective agreement provision in"light of
previous circumstances.
The letter between the parties concerning the moratorium on article 2
grievances requires no interpretation on the facts of this case. The parties are not at
odds on the language of the letter. It bars grievances concerning alleged violations of
articles 2.02 and 203 A, from September 1, 2014 until the expiry of the renewal
collective agreement. The Union attempted in October 2014, during the term of the
renewal collective agreement, to file such a grievance. Although the grievance did not
identify article 2, it is clear from the position taken by the Union that the complaint
alleges a violation of that article. However, the parties unequivocally stated in their
letter that such grievances would not be filed.
1
The existence of the new moratorium against article 2 grievances explains why
the grievance of October 1, 2014 made no mention of article 2, although that is the
very article that the Union now alleges was breached. It also explains why the
grievance relied upon the language of article 27 alone to sustain its position that the
collective agreement required Ms. Deluco's position be posted upon her retirement.
Arbitrator Parmar's decision, however, made reliance on article 27 untenable.
Unlike the circumstances of the individual grievors in Canadian Canners and
Bell, where a strict interpretation of the new collective agreement provisions would
have had an unintentional negative impact upon them, the same equities do not exist in
this case.
Here, the Union may have hoped that the College would replace Ms. Deluco
with a full-time position when she retired in June 2014. However, the Union was well
aware, or ought to have been aware, of the impact of the moratorium against article 2
grievances on the process by which it assesses and acts upon College staffing
decisions, including the College's decision not to post Ms. Deluco's vacant position. It
simply cannot be said that the Union had any reasonable expectation to think that the
new letter it had agreed to with respect to the filing of article 2 grievances did not apply
to bar the filing of the October 1, 2014 grievance, regardless of when the
circumstances giving rise to the grievance arose.
For these reasons, it is unnecessary to consider the merits of an article 2
analysis having regard to evidence presented at the hearing and I decline to do so.
The grievance is dismissed.
Dated at TORONTO on December 21, 2016.
Christine Schmidt, Sole Arbitrator