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HomeMy WebLinkAboutStewart 17-04-03IN THE MATTER OF AN ARBITRATION PURSUANT TO THE COLLEGES COLLECTIVE BARGAINING ACT BETWEEN: SAULT COLLEGE (the “Employer” or “the College”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union”) RE: RELEASE OF RICHARD STEWART OPSEU # 2015-0613-0009 A W A R D BOARD OF ARBITRATION Paula Knopf - Chair Ann Burke - Employer Nominee Sherril Murray - Union Nominee APPEARANCES: For the Employer: Dan Michaluk, Counsel Greg Mapp Rick Webb Colin Kirkwood Janice Beatty For the Union: Chris Bryden, Counsel Lynn Dee Eason Frank Turco The hearings in this matter were held in Toronto and Sault Ste. Marie on January 11, April 1, October 17, November 28, 2016 and January 17, 2017 . 1 This Award deals with a grievance concerning the release of a probationary employee. It follows two Preliminary Awards that defined the scope of the grievance,1 limiting arbitrability to allegations of discrimination, unlawfulness or violations of the Collective Agreement. The Union alleges that the College‟s decision to released the Grievor, Richard Stewart, was tainted by anti-union animus and motivated, in part, by the College‟s irritation with his father, who was also an employee of the College. This latter allegation was said to have resulted in discrimination on the basis of family status. The College denies the allegations, asserting that the release of the Grievor was justified as a result of the Union‟s cancellation of a Memorandum of Settlement concerning staffing. This could have been an extremely long and drawn-out hearing. However, to the credit of the parties and their counsel, they were able to focus and expedite the case by exchanging and relying upon witness “will say” statements and limiting cross-examination to areas where clarification was needed or where there were areas of contention. As a result, few of the relevant facts were in dispute. The Factual Context of the Grievance The College offers an Aviation Program devoted to the training and graduation of professional pilots. The staffing of such a Program is a complex matter, requiring recruitment and retention of qualified teachers, scheduling that complies with the Collective Agreement and the offering of courses that meet the standards and demands set by Transport Canada. In 2013, the College posted two Aviation Technologist vacancies in the Support Staff bargaining unit. The Union representing the Academic bargaining unit grieved the posting, alleging that the responsibilities associated with the positions should “reside” in their bargaining unit. That grievance was withdrawn in March 2013 when the parties signed a 1 Sault College v Ontario Public Service Employees Union, 2016 CanLII 75652 (ON LA) Sault College v Ontario Public Service Employees Union, 2016 CanLII 77180 (ON LA) 2 Memorandum of Settlement wherein the College agreed to rescind the Technologist vacancies and instead to post and fill a minimum of two Flight Instructor positions in the Academic bargaining unit. The Memorandum also gave the College flexibility with regard to the scheduling of Instructors and allowed for the use of sessional Flight Instructors under certain conditions. Its terms also allowed for the modification of the application of certain clauses in the Collective Agreement to meet the unique challenges of the Aviation Program. Most importantly, for purposes of this case, the Memorandum of Agreement concluded with the following paragraph: The parties agree that this agreement is made without prejudice and without precedent to the parties on any respective positions on any matter contained within this settlement. Further, the parties agree to review this settlement agreement at the request of either party. Should a renewal agreement not be reached either party must give at least three months notice of discontinuation to either party. The parties will revert to their previous positions in accordance with the Collective Agreement, save that sessional instructors who have not completed the 36 months described above will continue under the terms of this agreement unit their 36 month period is completed. As an immediate result of entering into this Memorandum of Agreement the Grievor was hired as a full-time Aviation Flight Instructor effective June 3, 2013, along with two others. At that time the Collective Agreement provided for a two- year probationary period. By all accounts, the Grievor performed his duties well. He received many positive performance appraisals and a great deal of encouraging informal feedback. Although he did not receive all the formalized quarterly “progress reports” due to him pursuant to Article 27.02 D, he was given reason to believe that he could anticipate a long career with the College. He had relocated his young family from Manitoba to take this position. He was anxious to succeed and hoped to achieve a professorship. He knew that the College was targeting people with degrees for that role. To that end, he sought and received approval from Dean Kirkwood in October 2014 for the funding necessary to complete a Business Administration degree. His application had read: “With this education I plan to become a leader here in the Aviation Department.” Mr. Stewart understood Dean Kirkwood to be supportive of his career aspirations. 3 On November 28, 2014, the Union asked for a review of the staffing Memorandum of Settlement and put the College on “formal notice” of the Local‟s intention to discontinue the Memorandum effective February 27, 2015, if the parties were unable to come to agreement about revised terms. Discussions between the parties were undertaken, however, no agreement was reached. The Union then gave notice of discontinuation of the Agreement to the College on February 27, 2015, indicating that the terms of the Collective Agreement would apply with the exception of the sessional instructors noted in the Memorandum. The Union hoped or assumed that the cancellation of the Agreement would result in the College reverting to use of Instructors and Sessionals, as had been the practice prior to 2013. However, the College interpreted the Agreement to allow it to revert to its intended staffing model at the time it was signed, that being to hire Aviation Technologists in the Support Staff bargaining unit instead of the Instructors. The parties‟ dispute came to a head during a meeting on April 8, 2015. They have stipulated that the following occurred: The College advised the Union that it was angry/upset at the cancellatio n of the MOA, that [the] cancellation would result in the lay offs of instructors and that anyone dissatisfied or affected by lay-offs would be referred to the Union to get an explanation because it was the Union‟s fault. On April 10, the VP Academic of the College wrote to the Union President saying: As I indicated we are deeply disappointed in the Union‟s decision. The MOA allowed us to better meet the unique staffing demands of the aviation program through the effective use of sessional and full-time instructors. We believe the MOA was a mutual benefit . . . . . Your cancellation has triggered a reversion to our previous position/staffing model . . . . The College will shortly take steps to implement that model. The College did exactly what it said it would do. On April 17, 2015, the Grievor and two other Flight Instructors hired following the signing of the staffing 4 Memorandum were released from employment, effective immediately. The Grievor was told about this by his supervisor, Greg Mapp, the then Operations Manager and Chief Flight Instructor [now Chair of the Aviation Technology - Flight Program]. The Grievor was told that his release was the result of the Union‟s cancellation of the Memorandum of Agreement and that Aviation Technologist positions would be posted to replace him and the other two Flight Instructors in the Support Staff bargaining unit. Mr. Mapp encouraged the Grievor to apply for those postings. The Grievor was very frustrated and upset to be told that he was suddenly unemployed. At that point he was 22 months into his 24-month probationary period. He had assumed that he would be able to complete it successfully because of the positive feedback he had received. He had a young family. He had just purchased a new house and he was concerned about having to go home and tell his wife that he no longer had a job. He did not understand why he had to lose his job or why he would be expected to make a formal application for a Support Staff position, given his positive feedback up to that point. The Grievor recalled saying words to the effect that „we don‟t have to stand for this‟ and „we should band together to deal with the situation in a better way‟. Mr. Mapp recalled that the Grievor also said, “We can (or should) stick together as a department and shut this place down.” The Grievor testified that given his own frustration and distress at the time, Mr. Mapp‟s recollection about that comment could be accurate. However, the Grievor‟s testimony also stressed that he never had any intention of suggesting that the department could or should be closed down. As he testified, “My intention was to work at the College for years. I never wanted to shut it down.” He admitted that he might have come across as sounding “aggressive,” but he explained that any anger was aimed at the situation, not at Mr. Mapp who he considered to be a friend. Mr. Mapp testified that he understood why the Grievor was upset. 5 The same day as the three Flight Instructors were released, the College posted three Aviation Technologist positions and one Lead Aviation Technologist position to “provide academic and aviation safety support to faculty and students”. These positions were situate in the Support Staff bargaining unit. In the course of this hearing, the College stipulated that there is “significant overlap in the Technologist and Instructor positions in terms of responsibilities.” On April 28th, the Grievor applied for these jobs. In the week following the release the three Flight Instructors, tensions we re high in the Department. The remaining staff raised concerns about safety, mor ale and “feeling disposable.” As a result, Mr. Mapp met with Dean Colin Kirkwood, and the two of them then met with Leo Tiveri (the then VP Academic), Ron Common (College President), Matt Casola (Manager, Occupational Health and Safety) and Rick Webb (Director of Human Resources) on April 23rd. The purpose of the meeting was for Mr. Mapp to advise them about the Department‟s reaction to the release of the three Flight Instructors. They also discussed information that had been received about Aviation Program employees voicing concerns about flight and work safety and meeting in the Union‟s offices. All this was perceived by the College as being aimed at putting pressure on the College about the staffing changes. Mr. Mapp told this management group about the comment the Grievor had made when he had been released about „banding together and shutting this place down‟. Mr. Mapp testified: “They did not take kindly to the comment.” On April 24th, there was a formal work refusal in the Department under the Occupational Health and Safety Act. An inspector from the Ministry of Labour attended the hanger. The work refusal was resolved without a finding of any endangerment and without any orders. There is no evidence to suggest that the Grievor organized or participated in this work refusal. On May 7th, the Grievor came to Mr. Mapp‟s office to say that he was filing a grievance protesting his release in order to try to “protect” himself and his family. 6 He also asked whether he had any future with the College. Mr. Mapp then indicated that he would like to speak to the Grievor as his friend, not as his manager. Mr. Mapp revealed that he had relayed the Grievor‟s comments about „shutting the place down‟ to management and that none of them “took kindly” to his comment. Mr. Mapp testified that after the subsequent work stoppage occurred, there was a feeling that the Grievor had played a part in it. As a result, Mr. Mapp said that he was being “frank” when he advised that he did not know if the Grievor had a future with the College. The Grievor was neither interviewed nor hired for any of the posted Technologist positions. One of the Instructors who had been released at the same t ime as the Grievor was rehired into one of the Technologist positions. The third Instructor did not seek re-employment with the College. The Union has grieved the posting of the Support Staff Flight Technologist and Lead Technologist positions, claiming that the duties belong in the Academic bargaining unit. That grievance has been referred to arbitration before another Arbitrator and has not been resolved at the time of this Award‟s release. Therefore, the issue of whether these duties belong in this Academic bargaining unit remains a live dispute between the parties. On May 9th, the Grievor asked for a letter explaining why he had been released. The letter was supplied after the grievance meeting held on May 20, 2015. The letter dated June 4th reads in part: The Reasons for Release The College released you during your probationary period due to the reorganization of our staffing model in the Aviation department. The re-organization followed the cancellation of a Local Union-Management agreement that established a staffing model that led to your hire. 7 The agreement was entered into in 2013 after the College posted two Aviation Technologist positions. The Union grieved the postings and the parties reached a settlement. There are two key components to the agreement:  The College agreed to rescind the two postings and, instead, meet its staffing needs by posting to hire a minimum of two full-time instructors.  The Union agreed to relief from certain Collective Agreement restrictions that made the use of flight instructors workable and appealing. You were hired pursuant to a posting contemplated by the agreement and worked under the staffing model supported by the agreement which stipulated that “the parties will revert to their previous position in accordance with the Collective Agreement” on discontinuance. . . . I do regret all of the circumstances that have led us to this point. Your experience and skillset leaves me with no doubt that you will find new employment within a short period of time. However, for the reasons mentioned above, but not limited to, your grievance is denied. The Union‟s case also includes the assertion that he was released, in part, because of his relationship with his father, Brian Stewart. That is the basis of the allegation that the release was tainted by discrimination on the basis of family status. The College took the position that any evidence concerning Brian Stewart‟s employment is irrelevant. However, since this evidence was integra l to the allegations of discrimination, it has been considered. However, to be clear, this Award is not an adjudication of facts and issues concerning Brian Stewart‟s employment. The following information is presented solely for the purpose of giving context to the claim of discrimination. Brian Stewart was hired into the College‟s Aviation Program in 1965 . For the years 2001-2007 and 2013-2015, he was its Chief Flight Teacher. Since 2009, he often voiced criticisms regarding some of the Program‟s standards and about many management decisions. Dean Kirkwood admitted that the College 8 considered Brian Stewart to be a “negative influence on the Depa rtment at times.” In 2013, Mr. Stewart became particularly critical of the quality and content of the classes being delivered by another Teacher. In the Spring of 2014, Brian Stewart was troubled about the course assignments given to that other Teacher for the Fall 2014 semester. In protest, Brian Stewart offered to resign in the Fall as Chief Flight Teacher if the other Teacher‟s assignment remained in place. The College‟s response was to accept Brian Stewart‟s resignation from the role of Chief Flight Teacher effective immediately. The College also launched an investigation to determine Brian Stewart‟s allegations were “well founded and, if not, whether [he made] the allegation for an improper purpose”. An “independent investigator” was retained. The resulting report concluded that Brian Stewart had “harassed and/or bullied” another faculty member and made “vexatious comments” that lacked “objective sound reasoning”. The College relied upon the findings of that report. As a result, Brian Steward was disciplined. On February 23, 2015, he was re- assigned to another department for the remainder of that academic year as well as for the following two years. He was ordered to refrain, “in all regards”, from attending at the Aviation facility and from taking any action that related to the affairs of the Aviation Program. The letter of discipline included the statement; “Quite frankly, we need time to put the program on a more positive track.” Dean Kirkwood testified that the College felt that Brian Stewart‟s removal from the Aviation Department was “necessary to put the Program on a more positive track”. This discipline was grieved. Brian Steward continued to remain at work in the newly-assigned department. However, when his son, the Grievor, and the other two Flight Teachers were released from their jobs in April, Brian Stewart became “psychologically distraught” and felt he could no longer go to work. He believed and continues to believe that the College took its irritation at him out on his son. He went on sick leave in June 20, 2015. His grievance has since been resolved. He was put on paid leave effective October 2015 and he retired December 31, 2016. Management witnesses vehemently denied that the 9 Grievor‟s release was connected in any way to their dealings with his father or Brian Stewart‟s history or grievance against the College. The issue of whether the Aviation Department should be staffed with Instructors or Technologists in the Support or Academic bargaining units is not before this Board of Arbitration. Nor will it be commented upon. Whether the College implemented a staffing model that complies with the Collective Agreement after the cancellation of the Memorandum of Agreement is not an issue to be determined in this Award. However, the evidence before us did reveal some relevant and interesting facts add factual context to the rational behind the Grievor‟s release. When the three Aviation Instructors were released and replaced with the four Aviation Technologists, this resulted in salary commitments of approximately two times the amount being paid to the Instructors, or approximately $120,000 more in salary costs. Dean Kirkwood was asked in cross-examination to explain the rationale behind this. He testified that he had done an analysis of the costs and impact of hiring under the alternate collective agreements on staffing models prior to the original postings for Technologists in 2013. He pointed out that that salary cost is not the only way to measure the overall cost of each staffing model because there are restrictions on the number of hours that can be assigned to the Instructors under the Academic Collective Agreement. Considerations of “productivity” were also said to have played a factor, such as being able to assign alternative duties to Technologists when flights have to be cancelled due to weather. He said that he had concluded in 2013 that the “cost per flight hour” was lower with Technologists. Therefore, operational considerations meant that the cost per hour of flying would be lower using support staff. However, he could not recall any of the details about that analysis. He did opine that the four Technologists “were not necessarily more expensive than the three Instructors even though their salaries were higher.” When asked if there were any savings for the College in using Technologists instead of Instructors, he admitted, “We 10 haven‟t done a calculation to establish that.” Nor was he able to say if College give any reconsideration of the relative costs of retaining the Instructors and/or hiring additional Sessionals in 2015 after the Memorandum of Agreement was cancelled by the Union. His evidence made it clear that the College simply reverted to its pre-Memorandum plan to hire Technologists into the Support Staff bargaining unit on the basis of the analysis that had been done earlier. In fairness to him and his testimony, the financial aspect of t he case was clearly not one that he or the College had anticipated from the exchange of Will Say statements exchanged by the parties prior to the hearing. The Submissions of the Parties Note: The parties did not address the matter of remedy because they agreed to bifurcate the proceedings and have this Board of Arbitration remain seized with that issue if necessary. The Submissions of the Union Fundamentally, the Union complained that the Grievor‟s release was unfair and unnecessary. However, given the limited scope of arbitrability for probationary releases under this Collective Agreement, the Union‟s case is based on the assertion that the Grievor‟s release was tainted by anti-union animus and/or discrimination on the basis of family status. Acknowledging that the Memorandum of Agreement overarches all the events in this case, counsel for the Union commented upon the irony of the fact that both parties relied on the cancellation of the Memorandum to support their cases; the Union asserting it as a “sword” to reveal the improper reasons for the Grievor‟s release and the College raising it as a shield, or as a defence to the allegations. The Union submitted that the “key” proof of the anti-union animus is contained in the stipulated fact that the College advised the Union on April 8th that it was “upset/angry at the cancellation” of the Memorandum of Agreement and that 11 anyone dissatisfied or affected by the resulting layoffs “wound be referred to the Union to get an explanation because it was the Union‟s fault.” These words were said to be a “threat” that went “beyond the standard of upset you might see in day-to-day labour relations.” The Union complained that the College took its anger at the Union out by releasing the three Instructors, including t he Grievor. The Union submitted that this is confirmed by Dean Kirkwood‟s evidence that revealed that the College did not consider any options other than the release of the Instructors after the Memorandum of Agreement was cancelled. While the Union stressed that this case is not an attempt to challenge the College‟s right to manage or make staffing decisions, the Union did complain that the College failed to consider any options other than to carry out its “threat” of layoffs. On this basis the Union asked that an inference be drawn that the decision to release the Grievor was tainted by the College‟s anti-Union animus. This was said to be even more evident given the Grievor‟s release was not prompted by any concerns about his work performance. The Union stressed that nothing in the Memorandum of Agreement required that the Instructors would be released if it was cancelled. Therefore, it was said that the decision to release the Instructors should be seen as retaliation against the Union that resulted in the Grievor becoming “collateral damage” with his loss of employment. The Union relied on the following to assert that it is illegal to have anti-union animus as even one factor in the termination of employment: Ontario Labour Relations Act, s. 72, CS Wind Canada Inc. v. IABSRI, Local 721, 2015 CarswellOnt 8699, [2015] O.L.R.D. No. 1668, 262 C.L.R.B.R. (2d) 57 (Misra); Teamsters Union Local 1000 v. Pop Shoppe (Toronto) Limited, 1976 CarswellOnt 642, [1976] O.L.R.B. Rep. 299 (Burkett). The Union submitted that the College‟s failure to hire the Grievor back as a Technologist may have been based on his comments about “sticking together” and “taking action” on the day he was told that he was being released. This was said to be patently unfair given that the Grievor was understandably upset and 12 that this comment should not have been held against him or taken out of context. However, it was conceded that this Board of Arbitration has no jurisdiction over the issue of the College‟s failure to rehire the Grievor. The Union‟s second argument is that the College‟s irritation with Brian Stewart and his grievance were also factors in the decision to release the Grievor. It was submitted that evidence revealed that Brian Stewart was someone who was perceived as an “irritant” because he had a history of vocalizing concerns about quality and standards in the Aviation Program. It was argued that the College‟s disciplinary “banishment” of Brian Stewart from the Aviation Department amounted to a disproportionate and “draconian” response to his legitimate concerns. It was also said to prove that the College wanted him out of the Department and to remove his influence on its affairs. This was said to be relevant to his son‟s treatment because the Grievor was released two months after his father‟s disciplinary transfer was put into effect. The Union argued that the Grievor „s release was a continuum in the College‟s determination to ensure that Brian Steward would have no more impact on the Aviation program. The Union suggested that this can be inferred from the fact that one of the other Instructors was immediately hired back as a Technologist, whereas the Grievor was not even interviewed for the new postings. The Union submitted that the totality of the evidence should also allow this Board of Arbitration to infer that management cast the Grievor in the same light as his father and assumed that the comments about “sticking together” and “shutting down” the Department meant he was also a troublemaker and that he was involved in the work stoppage that happened after his release. The Union relied on the following case to support its argument that discrimination occurs when an employer is dissatisfied with one employee and punishes his/her relative as a consequence: A. v. B., 2002 SCC 66, 2002 CSC 66. 13 The Union also submitted that the evidence revealed violations of Articles 27.02 D and E arising from the fact that the Grievor was not issued progress reports every four months during his probationary period and he was not given written reasons for his release until after the second step grievance meeting. The Submissions of the Employer The Employer‟s primary position is that the evidence supports the conclusion that the sole reason for the Grievor‟s release was the cancellation of the Memorandum of Agreement. It was also stressed that the release of the other two Instructors at the same time as the Grievor indicates that the release did not target the Grievor personally, but was, instead, the direct consequence of the cancellation of the staffing Agreement. Further, it was pointed out that the Union was told that the cancellation would have consequences upon staffing, including layoffs. The Employer argued that since the Agreement had been a compromise whereby the Union achieved Academic bargaining unit positions in return for the Employer obtaining scheduling flexibility, the Union should not have expected the Instructor positions to remain in this bargaining unit after it cancelled the Agreement. It was submitted that Dean Kirkwood‟s evidence established that the College wanted to implement a staffing model with Aviation Technologists in 2013 in order to achieve flight cost savings and flexibility. It was admitted that Dean Kirkwood‟s evidence was “vague” about the analysis, however, it was submitted that the Union failed to meet the onus of proving that the staffing model was “illegal” or contrary to the Collective Agreement. It was acknowledged that reversion to the use of Aviation Technologists is currently being challenged. For purposes of this case, it was stressed that when the Union cancelled the Memorandum of Agreement, the College simply adopted the staffing model that it had put in place before the Settlement was reached. This was said to be exactly what the Settlement allowed. 14 The Employer‟s second position is that the reversion to the staffing model of using Aviation Technologists in the Support Staff bargaining unit was not motivated by anti-Union animus. Acknowledging that the College was angry at the Union for the cancellation of the Memorandum of Agreement, the anger was said to have arisen because the Settlement had been a “good thing” for both parties and its cancellation prompted negative consequences. It was also submitted that “anger” is a common reaction in labour relations and does not, in itself, signal anti-union animus. Support for this was said to be found in a decision between these parties that is based on many of the same events that are relevant to this case: Sault College and OPSEU, Eason Grievance, Decision of Stout, Burke and Murray, dated April 11, 2016. Addressing the allegation that the Grievor‟s release was connected to the College‟s “irritation” with his father, the Employer primarily submitted that any evidence about Brian Stewart‟s actions and discipline are irrelevant. In the alternative, it was stressed that there was no evidence that linked the decision to release the Grievor with his father. The fact that the Grievor‟s release occurred just two months after the father‟s discipline was said to be an “incredibly weak link”. It was also submitted that the College‟s treatment of Brian Stewart was an appropriate response to what an independent investigator found to be “serious misconduct”. Further, it was stressed that the evidence demonstrated that the Grievor had enjoyed a good relationship with his supervisor and his Dean, that his work had been supported and that he had been approved for professional development opportunities during the same timeframe as his father was under investigation and being disciplined. This was said to disprove any suggestion that the College perceived the Grievor to be linked to any disruptive influence on the department. Further, it was submitted that the evidence does not support a finding that the Grievor was released because of any perception that he was involved in the work refusal because the decision to release him had been made before he suggested 15 a work stoppage and before it took place. However, it was acknowledged that management did link the work stoppage to the Grievor thereafter because of the comments he made on the day he was released. While it was stressed that this was not a reason for his release, it was pointed out that the College did rehire the Instructor who had been released at the same time but who had not made similar comments. It was submitted that the Grievor should not have said what he did and that his comments had the “consequence” of him not being considered for rehire. The Union’s Reply Evidence The Union distinguished this case from the Eason Grievance, supra, by stating that the College‟s anger and “threat” of layoffs expressed to the Union as a result of the cancellation of the Memorandum of Agreement are different than the kind of “passionate” language that is often used in a grievance or confidential meetings. Further, the Union submitted that the evidence does not support the notion that the College had to release any Instructors as a consequence to the cancellation of the Memorandum of Settlement. It was also stressed that the College did not even revert to its “previous” staffing model because Technologists had not been used before the Memorandum was signed. Therefore, it was submitted that the Union could not have foreseen that the cancellation would necessarily lead to the layoff or release of Instructors because other options were available to the Employer. The Decision We should begin with the simpler issues concerning whether the College violated Article 27 with respect to the Grievor‟s specific contractual rights as a probationary employee. The Collective Agreement provides: 16 27.02 D During the probationary period an employee will be informed in writing of the employee‟s progress at intervals of four months continuous employment or four full months of accumulated non-continuous employment and a copy given to the employee. 27.02 E A probationary employee may be released upon at least 30 calendar days‟ written notice or pay in lieu thereof. If requested by the employee, the reason for such release will be given in writing. The evidence indicated that the Grievor did not receive all of the formal progress reports mandated by Article 27.02 D. This was raised a concern by the Union at the hearing but not grieved. Nor did this impede the Grievor‟s ability to progress. The formal and informal feedback he was given was consistently positive and constructive. Therefore, while the provisions of the Collective Agreement should be respected and adhered to, he was not deprived of any significant information that would or could have affected his ability to achieve success as a probationer. Therefore, it shall not be referred to again. There can be no finding of a breach of Article 27.02 D. The main reason is that this Board of Arbitration ruled in our second preliminary award: “. . . .while we will hear evidence about the delivery of the reasons for the release, this will not be an arbitration about what relief may flow from an alleged violation of this provision”, see Sault College v Ontario Public Service Employees Union, 2016 CanLII 77180 (ON LA). Further, it must be pointed out that the Grievor did receive the reason for his release in writing. This was received only after he had requested it and after a grievance meeting was held. The College provided the explanation for the delay. The delay does not appear to have been intentional. Nevertheless, it was unfortunate and added fuel to the perception of unfairness. However, the Collective Agreement does not impose a time requirement on the delivery of the reasons for the release.. The relevant contractual and statutory framework for the more complex and pressing issues concerning the Grievor‟s release are as follows: 17 Colleges Collective Bargaining Act Interference with employee organization prohibited 53. (1) ... an employer or a person acting on behalf of the Council or an employer shall not, (a) participate in or interfere with the formation, selection or administration of an employee organization or the representation of employees by an employee organization; or (b) contribute financial or other support to an employee organization. (2) Nothing in subsection (1) shall be interpreted to deprive the Council, an employer or a person acting on behalf of the Council or an employer of the freedom to express views so long as coercion, intimidation, threats, promises or undue influence are not used. 2008, c. 15, s. 53 (2). Interference with employees rights prohibited (3) ….. an employer or any person acting on behalf of . . . an employer shall not, (a) refuse to employ or to continue to employ or discriminate against a person with regard to employment or any term or condition of employment because the person was or is a member of an employee organization or was or is exercising any right under this Act; (b) impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain a person employed by an employer or a person seeking employment by an employer from becoming a member of an employee organization or exercising any right under this Act; (c) seek by intimidation, by threat of dismissal or by any other kind of threat or by the imposition of a pecuniary or any other penalty or by any other means to compel a person employed by an employer to become or refrain from becoming or to continue to be or cease to be a member of an employee organization, or to refrain from exercising any right under this Act. Ontario Human Rights Code 5. (1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability. [emphasis added] 10.(1) “family status” means the status of being in a parent and child relationship 18 The Collective Agreement 3.02 The Colleges and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practiced by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of an employee's activity or lack of activity in the Union or because of an employee's filing or not filing a grievance including participation in the workload complaint system. The case law that the parties cited adds some context to the se provisions. In the Sault College and OPSEU, Eason, supra, case, the Stout Arbitration Board dealt with the impact of a heated exchange between this College and its Union leaders during a meeting convened to discuss sensitive labour relations issues related to the College‟s financial situation, staffing and restructuring. Those issues overlap with the issues in the case at hand. The following passage is instructive: 19. . . . . . it is still not unusual for union and management to take forceful positions and become passionate during grievance and/or confidential meetings, such as the meeting that occurred on April 8, 2015. In most situations, the parties will attempt to persuade each other of the merits of their position. There is no doubt that on some occasions, these debates become very heated and some participants may make inappropriate comments, which outside of this forum might be perceived as unprofessional or offensive. This paragraph acknowledges that heated discussions and differing positions are the norm in labour relations. Anger and frustration often erupt when the parties cannot find a way to resolve issues that mean a great deal to their operations and the people they represent. Inappropriate, unprofessional and offensive comments are often made as tempers flair. However, the fact that an employer may be angry at a union for its conduct or its decisions does not automatically trigger a finding of anti-union animus or a breach of the statute. Employers are often angry at unions for a myriad of legitimate and/or unwarranted reasons. If the existence of anger against a union triggered a finding of anti-union animus, employers might be in breach of the 19 statutes every day, several times a day. A finding of anti-union animus requires more than that. Anti-union animus is a term of art adopted to reflect unlawful conduct that interferes with a union‟s or employee‟s exercise of their statutory rights. The test is contained in the statute and based on interference in the institutional rights of a union or interference in an individual‟s ability to exercise his/her rights under the Act. This was explained in the case of CS Wind Canada Inc. and IABSRI, Local 721, supra: 376. The test the Board applies when considering an allegation that an employer has acted with anti-union animus was outlined in Springs Canada Inc., cited above, as follows: 98. The test in considering whether the employer has committed an offence under the Act and had an anti-union animus is the same sort of consideration that would arise under a section 50 complaint under the OASA. For example, the Board in Westinghouse Canada Limited, [1980] OLRB Rep. Apr. 577 stated: 44. We now turn to the unfair labour practice provisions underlying this complaint and to a consideration of the law as it relates to the degree of anti union motive necessary to establish such violations of the Act. For the purpose of our analysis it is useful to distinguish between decisions affecting individual employees and major business decisions having potentially broader impact. In dealing with the treatment of individual employees this Board has consistently held that if only one of the reasons for an employer‟s actions against an employee (discharge, layoff, transfer, demotion, etc.) is related to union activity the action is in contravention of the Act. Given the reverse legal onus mandated by section 79(4a) the Board has held that to find there has been no violation of the Act in these kinds of cases it must be satisfied that the employer‟s actions were not in any way motivated by anti-union sentiment. The Board summarized this approach and the effect of the statutory reversal of the legal burden of proof in The 20 Barrie Examiner case, [1975] OLRB Rep. Oct. 745 as follows: … the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer‟s conduct. This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two fundamental facts – first, that the reasons given for this discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred. This passage highlights an important point. If an employer‟s actions against an employee are in any way related to union activity, the action is in contravention of the statute. It is often difficult to make such a finding because offenders rarely advertise their transgressions, so inferences can be drawn from the evidence that is presented. This was explained in Pop Shoppe, supra: 5. In cases such as these the Board is very often required to render a determination based on inferential reasoning. An employer does not normally incriminate himself and yet the real reason or reasons for the employer's actions lie within his knowledge. The Board, therefore, in assessing the employer's explanation must look to all of the circumstances which surround the alleged unlawful acts including the existence of trade union activity and the employer's knowledge of it, unusual or atypical conduct by the employer following upon his knowledge of trade union activity, previous anti union conduct and any other "peculiarities”. These determinations, however, are most difficult and require an incisive examination of all the evidence. Not only must the Board "see through" the legitimate reasons which often co-exist with the unlawful, but at the same time the Board must be capable of distinguishing between the unlawful and the unfair. The Board cannot find, and neither should it automatically infer, that an employer who has engaged in conduct which is unfair has violated the Act even if the unfair treatment is coincidental with an organizing campaign. However, because of the nature of the proceedings and the frequent requirement for inferential reasoning the Board would be 21 delinquent if it did not consider, for purposes of drawing an adverse inference, unfair treatment during an organizing campaign of itself or in conjunction with the other circumstantial evidence. The Board, therefore, must be acutely sensitive to all of the circumstances and must not be unduly swayed by either the co-existence of unfair treatment or by the co- existence of legitimate reasons for the employer's conduct in determining if the Labour Relations Act has been violated. This case emphasizes that adjudicators can and must be able to draw infe rences from the evidence to see if there has been any interference with a union‟s or an employee‟s exercise of statutory rights. However, even evidence that reveals unfairness will not necessarily trigger a finding that there has been any interference with statutory rights. This Employer has conceded that it was “angry and/or upset” at the Union about the cancellation of the Memorandum of Agreement that had provided benefits to both parties. It gave the College relief from aspects of the Collective Agreement and flexibility with regard to scheduling. It also achieved coveted full-time positions in this bargaining unit for the Union. When the Union sought, as was its right, to renegotiate the Settlement, it is unfortunate that no mutually acceptable modifications could be reached. When the Union then cancelled the Agreement, as was its right, it triggered a series of events that were beyond the Union‟s immediate control. The College‟s response to the cancellation of the Memorandum appears to have been an almost reflex reaction. The College immediately released the three Instructors who had been hired pursuant to the postings promised in the Memorandum. It then posted four vacancies the same day for positions with significantly similar responsibilities that would reside in the Support Staff bargaining unit. Did this amount to an unlawful treatment of the Grievor? For a finding of a breach of s. 53 of the Colleges Collective Bargaining Act, there has to be 22 evidence that he was released, even in part, because the Employer interfered with his individual rights or the rights of the Union. Turning first to the Grievor‟s individual rights, the College is not allowed to refuse to employ or to continue to employ or discriminate against a person with regard to employment or any term or condition of employment because s/he was a member of this Union or was or is exercising any rights under this Act. That is activity that the Act protects. However, there is no suggestion in the evidence or the submissions that the Employer‟s decision to release the Grievor was related to the fact that he was a member of the Union engaged in Union activity or exercising his rights under the Act. The decision to release the Grievor and the other two Instructors was implemented immediately after the cancellation of the Memorandum of Agreement. The decision to do that was made before management was told that the Grievor said anything about “shutting this place down.” So even if the Grievor was involved in some form of legal or illegal union activity as a response to the release of the Instructors, his release cannot be connected to anything he said or did before that statement was uttered. Therefore, there is no basis for a finding that the Employer breached the Grievor‟s individual rights under s. 53(3)(a). This brings us to the question of whether the Employer interfered with the Union‟s institutional rights under s. 53(1). The relevant portions of that section prohibit employers from interfering with the administration of a Union or its representation of employees. It allows employers to “express views so long as coercion, intimidation, threats, promises or undue influence are not used .” It is noted that the Union characterized that the College‟s declaration as a “threat “ when it said that it would send any laid off employees to the Union because their loss of jobs was the “Union‟s fault.” However, that statement must be recognized for what it was. The College was forewarning the Union of the fact that staff would be laid off or released as a consequence of its decision to cancel the staffing Settlement. Indeed the College President did inform the Faculty that the 23 Union‟s decision was the reason for the changes. However, there is no evidence to support a finding that the College‟s decision to release the Grievor and/or the other Instructors interfered with the administration or activities of the Union. We were not told why the talks about renegotiating the Memorandum of Agreement were initially undertaken or why the parties‟ discussion yielded no solutions. We suspect that the reasons are complex and that both parties share responsibility for the breakdown of the discussions. However, we cannot ignore the evidence that did reveal that the College had many options other than releasing the Instructors after the Memorandum of Agreement was cancelled. It is true that the language allowed the College to “revert to its previous position in accordance with the Collective Agreement.” What that means may have to be interpreted by another Board of Arbitration. But the evidence bef ore us did suggest that the College had options beyond the release of the three Instructors:  It could have left the Flight Instructors in place and proceeded to arbitration to determine whether their duties fell within the Academic or Support Staff bargaining unit. If the Employer succeeded with that grievance, the existing Instructors could/would then be declared to be members of the Support Staff bargaining unit as of their date of hire; and/or  It could have re-visited the analysis of the relative costs and efficiencies of the Support v. Academic staffing models; and/or  It could have considered alternate staffing models involving the use of additional Sessional or other categories of employees; and/or  It could have continued to propose creative ways to modify the Memorandum of Settlement. Perhaps there were more options. The important point is that the release of the Instructors was not the only option available to the Employer. Nothing in the wording of the staffing Agreement directly triggered the immediate release of the three Instructors. But it cannot be ignored that “substantially the same responsibilities” held by the released Instructors were posted as vacancies the 24 same day, indicating a continuing need for the same work to be done. Therefore, the only real question that divided the parties after the Memorandum of Agreement was cancelled was whether those duties and responsibilities fit properly within the Academic or Support Staff bargaining units. That might have been able to be determined by an arbitration without the displacement of the people doing that work. That is why it is understandable that the Grievor and the Union perceived his release to be so unfair. Nevertheless, the release of the Instructors remains as one reasonably arguable and foreseeable exercise of management rights after the staffing Agreement was cancelled. While the College was admittedly “angry/upset” about the cancellation, that reaction cannot be elevated to a finding that there was any interference with the formation, selection or administration of the Union or its representation of employees. The College‟s notice to the Union that it would be blamed for any layoff cannot be found to be a “threat” because it simply reflected the College‟s intention to cast blame for the outcome on the Union. While that may have been unnecessary or even unfair in all the circumstances, that does not allow for an inference that it interfered with the exercise of the Union‟s rights under the Act. As the Pop Shoppe, supra, case advises, there is a difference between unlawful and unfair. In this case we can appreciate the perceived unfairness to the Grievor. He was a promising employee who was released for no reason related to his performance. This was done to him after he worked hard, when he had all but completed his probationary period and after he had organized his family and educational plans in the reasonable anticipation of a long career with this College. He was, indeed, the victim of the parties‟ inability to reach agreement about staffing. However, this Board cannot find or infer from the evidence that the College engaged in conduct that violated the Act. 25 This College may have acted precipitously or unfairly. Its determination to assign these duties in the Support Staff bargaining unit may or may not be in contravention of the Academic Collective Agreement. That is not for this Board of Arbitration to determine. Even if the Union is correct in some of its assertions that are outside of this grievance, they do not amount to unfair labour practices. The Act is not violated every time there is any unfairness or violation of the Collective Agreement or every time an employer is angry at a union. Accordingly, we cannot infer that the Grievor‟s release or the College‟s actions establish interference with his individual or the Union‟s institutional rights that are protected by the governing statute. This brings us to the question of whether the Grievor‟s release was stimulated, in whole or in part, by the College‟s irritation with his father. If the evidence supported that conclusion, it could amount to discrimination on the basis of family status, see A. v. B., supra. However, the evidence in this case does not support that conclusion. The evidence revealed that the College‟s irritation with the Grievor‟s father developed over the long period of his vocal criticism of management, the program and one of his colleagues. Regardless of this, during the same period that the College was concerned about the negative influence that Brian Stewart was having on the Aviation Program, the College hired his son, gave him positive reinforcement about his work and financially supported his ambitions to obtain the kind of university degree that could lead to a professorship. The evidence also indicated that even at the moment that the Grievor was told that he was being released, his supervisor, Mr. Mapp, encouraged him to reapply for one of the Support Staff vacancies. All this leads to the conclusion that while the College decided to release all three Instructors because of the cancellation of the Memorandum of Agreement, it was still prepared to immediately re-hire the Grievor into its other bargaining unit. That intention only changed after management heard the Grievor‟s comment about having the department band together or to “shut down” the Program. 26 My father used to warn us that a person takes a lifetime to build a reputation and only a moment to destroy it. The Grievor spent almost two years earning his supervisors‟ respect and trust, and then damaged his reputation with one comment. Could the College‟s reaction of “not taking too kindly to that remark” been because management thought the Grievor might become a negative influence on the Program, like his father had been? Did the College fear, “like father like son”? Could management have feared that the Grievor might be planning to promote some sort of lawful or unlawful Union activity? We cannot conclude that such thoughts or fears played any role in the Grievor‟s release because the evidence is clear that the decision to release him had been made before he uttered those unfortunate words. Therefore, the evidence does not link the College‟s actual decision to release the Grievor to anything relating to his father or any union activity. In a more reflective setting or if the tension in the Department had not be so severe, the Grievor‟s comment might have been recognized as a spontaneous expression of frustration, erupting from the realization that he no longer had a job. However, it must be emphasized that the Union properly conceded that this Board of Arbitration has no authority over the College‟s decision not to rehire the Grievor. Our only authority is over the College‟s decision to release him. In that regard, the evidence is clear that the decision to release the Grievor was made before he made any remarks that might have caused concern. Accordingly, the evidence does not support a conclusion that the Grievor‟s release was, in whole or in part, tainted by any discrimination on the basis of family status or that there was interference with either his or the Union‟s statutory rights. Therefore, the grievance against the Grievor‟s release must be dismissed. 27 We are grateful to counsel for their assistance and cooperation i n the presentation of this case. Dated at Toronto this 3rd day of April, 2017 Generated by CamScanner __________________________ Paula Knopf - Chair I concur - See Addendum “Ann Burke” ___________________________ Ann Burke - Employer Nominee I dissent “Sherril Murray” ____________________________ Sherril Murray - Union Nominee 28 ADDENDUM I have now had an opportunity to review the award in this matter and feel obliged to make the following comments. I make these comments in the context that we ruled in our preliminary decision, dated November 9, 2016, that articles 27.02 D and E were not grieved. In its essence, this is a grievance in which it is alleged that a probationary employee was released from employment contrary to art. 4 of the collective agreement due to suspected union activity and discrimination o n the grounds of family status. These were the grounds on which the case went forward. Neither of these claims were made out on the evidence. In my view, that ends the matter. This is not a grievance alleging any violation of the collective agreement relative to the College‟s conduct in the discussions following the Union‟s unilateral notice of the cancellation of the Memorandum of Agreement. It is not a grievance concerning the College‟s right to revert to their position prior to the Memorandum of Agreement. The grievance before us does not allege a violation of the CCBA. While the Union did file a grievance concerning the assignment of work to employees in the support staff bargaining unit, that grievance is not before us. In this context, in my respectful view, there was no reason for the College to defend their decision to revert to their former position and, that decision is entirely unrelated to the matter before us. I therefore view all comments concerning how the College might have responded to the Union‟s decision to cancel the Memorandum of Agreement as obiter dictum addressing a collateral matter and unfair criticism of the College, in all the circumstances. Dated this 30th day of March, 2017 Ann E. Burke