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HomeMy WebLinkAboutUnion 06-11-06 C~"~~ IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE (the "Employer") - and - OPSEU (the "Union") AND IN THE MATTER OF A UNION GRIEVANCE RE JOB POSTING - OPSEU GRIEVANCE NO. 2002-417-0022 I N T E RIM A WAR 0 #3 Board of Arbitration: Paula Knopf, Chair John Podmore, Employer Nominee Ronald Kelly, Union Nominee Appearances: For the Employer J. Lynn Thomson, Counsel For the Union Susan Ballantyne, Counsel The hearing of this matter was held in Kingston on October 25, 2006. This case began with the consolidation of 17 grievances alleging that the College had violated the terms of a Local Agreement (hereinafter referred to as the Local Agreement) by failing to make full-time appointments to fill the vacancies that had arisen as the result of the implementation of the parties' Voluntary Retirement Incentive Plan. Two Interim Awards have already been issued to the parties on May 7, 2004 and June 15, 2004, giving direction to the parties regarding the process and defining the scope of arbitral review pertaining to these grievances. To the parties' credit, they have been able to resolve all but two of the original grievances. The College has satisfied the Union that there was not sufficient work remaining after 15 voluntary retirements to warrant the posting of full-time positions. The two unresolved grievances involve cases where the Union is alleging that sufficient work remains to warrant the filling of two full-time positions. Those grievances concern the voluntary retirements of Professors Molson and Roberts. The parties are now seeking direction from the Board of Arbitration regarding the extent of the inquiry that must be undertaken to determine the College's obligation to post full-time positions under the Local Agreement. In order to put the current dispute in context, it IS both helpful and necessary to cite from the earlier Interim Awards: The Union initiated the idea to reintroduce a voluntary leave incentive plan for the faculty. The College could have implemented such a plan without the Union's agreement or input. However, the parties were wise enough to enter into negotiations for the implementation of such a plan. In order to facilitate its funding, they were able to negotiate a mechanism for the back- filling of retired professors' positions for up to twelve months with the use of sessionals (and ultimately part-timers). At the same time, the Union wanted to protect the retiring professors' positions within the bargaining unit. Initially, the Union wanted an unconditional guarantee that all positions would be refilled with full-time appointments. The College made it clear that such a guarantee could not be given because of the uncertainties 2 associated with enrolment and the programmes from which the retirees would evolve. The parties agreed to address those concerns by creating a specially constituted committee that had the power to "mutually agree" when retired positions would not be filled following the normal UCC and CESC processes. In order to make this whole scheme work, the College also agreed to track the retiree positions and provide that information to the Union at the beginning of every semester. (See Local Agreement, paragraph 3.) In addition to these incontrovertible facts, the evidence also establishes that both parties assumed that the special Committee would undertake a review of the retiree positions and would analyze the relevant information rationally and reasonably. It must therefore be concluded that a rational and reasonable process was contemplated. As a result, it must be concluded that the parties established substantive rights under the Loca! Agreement and also created a process to ensure the enforcement and the viability of those rights. The question then arises as to what happens when the rational and reasonable members of the special Committee fail to reach mutual agreement about whether retiree positions should be filled. In order to answer that question, each aspect of the Local Agreement must be looked at and the document read as a whole. First and foremost, the word "guarantee" must be given a meaning. It is a strong word, connoting a promise or commitment to fill the retirees' positions. To read this document as a mere undertaking to fill the retiree positions if the College perceives that work exists would be even a lesser promise than Article 2 of the collective agreement now provides. The inclusion of the word "guarantee" must mean that the College was promising a greater right than now exists under article 2 of the collective agreement. ... Accordingly, the word guarantee must be given meaning and effect. However, it is also clear that the document does not create an absolute guarantee. The use of the word guarantee without any qualification would have obligated the College to replace every full-time retiree with another full-time bargaining unit position, regardless of the need or circumstances. Indeed, that is how the original draft of the document read. However, that draft was rejected by the College and the parties' discussions were aimed at addressing the College's concerns. The parties then ..., -' negotiated until they reached agreement on the final document that does contain language that modifies the absolute guarantee. It created the Committee and allowed for the possibility that that Committee would agree that retirees' positions need not be filled. Unfortunately, paragraph (b) does not contain specific parameters for the committee's deliberations or provide for a resolution mechanism in the event of a failure to agree. Does this mean that the Union is granted an effective veto power in the Committee's operations? The answer to this question can be found in the rest of the document and the evidence of the parties. Paragraph (c) obligates the College to track the retiree positions and provide information to the Union. This is consistent with the evidence of Ms. White that indicated that the parties contemplated that the Union would be provided with sufficient evidence to make informed and rational decisions in the Committee process. The ieceipt of such information would be basic to the effective operation of such a committee and the ability of the Union to fulfill its role effectively. The Union would also need to be informed of the College's rationale for the situations where it was not filling the positions. That rationale would have been provided at the UCC and CESC provisions referred to in paragraph 2. Therefore, it follows that the parties were designing a process to get information to the Union and a process that allowed for reasoned and informed decision-making by the Committee. The importance of the guarantee is that it puts an onus on the College to justify its desire not to fill a retiree's position. But, as Ms. White properly conceded, the Union was not negotiating a deal whereby it would unreasonably insist on the filling of a position where no work existed. Therefore, the guarantee was not absolute or unconditional. But it does create the presumption that the positions will be filled. Following the release of the Interim Awards, the parties entered into a further Memorandum of Agreement on July 26, 2005, implementing a process for the exchange of documentation prior to the hearing regarding these grievances. That Memorandum includes the following provisions: 1. Mary Ann White, another representative of the Local (if the Local desires), the responsible Academic manager and Cindy Bleakney will meet to discuss the issue. The College will provide, verbally, at the meeting, the details and particulars upon which it relies to establish that the 4 workload performed by the voluntary retiree no longer existed one year after the voluntary leave. The Union will provide, verbally, at the meeting the details and particulars it relies on to assert the claim that the workload still did exist one year after the voluntary leave. 2. If, after reflecting on the information discussed at the meeting, the Union notifies the (sic) Cindy Bleakney, in writing, that it is not satisfied by the College's verbal explanation and it wishes to pursue the issue further, the College will provide, in writing to the Union, the details and particulars upon which it relies to establish that the workload performed by the voluntary retiree no longer existed one year after the voluntary leave within 14 days of that notification. The Union will provide, in writing to the College, the details and particulars it relies upon to assert the claim that the workload still did exist one year after the voluntary leave within 14 days of receipt of the College's written explanation. These timelines can be extended by mutual agreement. 3. If the Union still is not satisfied and wishes to proceed to arbitration, the Knopf board will have the authority to review whether or not the College has fulfilled its onus of satisfying the Union that no workload existed and whether the Union is acting in good faith in withholding agreement at the Committee stage. Finally, it should be pointed out that this Board's prevIous Interim Awards declared that the scope of arbitral review in this case was limited to the determination of whether the College had fulfilled its onus of satisfying the Union that no workload existed and whether the Union was acting in good faith in withholding agreement at the Committee stage. The College provided the Union with the rationale for not fulfilling two full- time positions after the voluntary retirements of Professors Molson and Roberts. The difference between the parties is over what should or must be taken into consideration in determining whether a full-time workload exists following the voluntary retirements. The College asserts that it need only look at the courses that were being taught by the retiring teacher in his/her last year. The Union 5 asserts the College must look beyond the individual's course assignments in their last year and also look at the effect of the redistribution of his/her courses and other available work within the department. The Submissions of the Parties The Union asserts that the Interim Awards confirmed that the Local Agreement gave the Employer the right to backfill retiree positions for 12 months with sessional and part-time faculty in return for the Union acquiring greater protections for full-time positions than exist under Article 2 of the Collective Agreement. In a typical Article 2 grievance, the College would have to look at all the available work. Accordingly the Union argues that the College must look at all the available work in the department, not just the specific classes taught by the voluntary retiree in his/her last year of service in order to decide whether a full-time position continues to exist. The Union stressed that faculty members do not have ownership of courses, nor are workloads constant, because the management rights clause allows for the College to make assignment changes from time to time and there are often curriculum changes. Therefore, it was said that the College should not be able to limit the inquiry about the workload to the specific courses being taught in the last year. Accordingly, the Union argues that since it achieved greater rights under the Local Agreement regarding protection of full-time positions than it already had under Article 2, it must follow that the College must look at the retirees' workload, as well as all the available work in the department, to determine whether a full-time workload continues to exist following the voluntary retirement. The College asserts that the answer to this case lies in the Memorandum of Agreement that the parties entered into following this Board's earlier Interim Awards. The College stressed that the Memorandum focused specifically on the "workload performed by the voluntary retiree". Therefore, it was said that that is all that the College must consider. Accordingly, in the case of Professor Molson, 6 it was pointed out that a significant number of the courses that he had taught in his last year are no longer being offered. The remaining courses would not constitute a full-time SWF, but were reassigned to other full-time faculty. In this way, the College says it has fulfilled its duties. However, the College also concedes that it cannot engage in a "shell game" and answer a grievance such as this by simply saying that the remaining courses were assigned to full-time teachers. The College agrees that if the effect of assigning the remaining courses to other full-time teachers would be that they could not absorb the additional hours into their allotted workload, the Union would quite properly be entitled to look at the extra work being done that related to the voluntary retiree. Therefore, the College concedes that it cannot simply take an entire full-time workload and redistribute it to other full-timers and claim that that alone satisfies the requirements of the Local Agreement. The College agrees that the Union is entitled to see the effect of the redistribution of the voluntary retirees' workload in order to assess whether it has been absorbed by other full-time members' workloads. However, the College asserts that the Union is not entitled to have the entire workload of the department examined in one of these grievances as if it were an Article 2 case. It is asserted that once the College has been able to satisfy the Union or this Board of Arbitration that the retirees' courses are no longer being taught or were assigned to other full-time faculty members without them having other work reassigned, the College will have satisfied its onus pursuant to the Local Agreement. The College also asserts that looking beyond the voluntary retirees' last workload is inconsistent with the Memorandum of Agreement and would take this case into the realm of an Article 2 grievance. It was pointed out that Article 2 grievances have actually been filed with regard to this same situation and are awaiting the outcome of this case. Therefore, it was said that the remedy the Union may be seeking would properly be determined through the Article 2 process, not through the grievances at hand. 7 THE DECISION The Voluntary Retirement Incentive Plan was a good idea for both parties. The retirements could be funded through the lesser cost of new hires and the backfilling with sessional and part-timers for the first 12 months. The Union would be able to maintain the size of the bargaining unit by bringing in new teachers and filling vacant positions with full-time members after 12 months. The parties are to be commended for their design and implementation of this creative scheme and for their success at resolving 15 grievances that had been filed with respect to whether full-time positions continued to exist. It is to their credit that only two grievances remain outstanding. The parties are now seeking specific direction about what can be considered to determine whether full-time positions continue to exist following the voluntary retirements of two professors. By virtue of our Interim Awards and the parties' Memorandum of Agreement, the onus is on the College to establish that "the workload performed by the voluntary retiree no longer existed one year after the voluntary leave". The central issue at this time is the meaning of "workload performed by the voluntary retiree". There is certainly logic and practicality to the College's position. It would have the term "workload" in the Memorandum of Agreement mean simply the courses being taught by the voluntary retiree in his/her last year of service and require the tracking of the redistribution of those specific courses to other faculty members. However, such an interpretation or approach ignores both the language and the intent of the Local Agreement. That fundamental document gave the Union a "guarantee that the retired positions will be filled" unless the specially-formulated committee agrees otherwise. As stated above, this was not an absolute guarantee. But it was a protection of positions that gave the Union 8 greater rights than already existed under Article 2. It was a promise to continue full-time positions if the workload continued to exist. In other words, that qualified "guarantee" or protection of positions arose out of the College's promise to continue to retain a full-time position if that position would have continued to exist, but for the voluntary retirement. There was no guaranty to continue the teacher's specific courses. The "guarantee" was for the retention of the full-time position or workload. Accordingly, because faculty members' workloads are subject to change, the specific courses being taught by the voluntary retiree in his/her last year are not what is critically important. What is important is whether the full-time workload of the voluntary retiree would have continued, but for the retirement. Put another way, if the voluntary retiree had not retired, wouldhis/her full-time workload have continued? In order to answer that question, the College and the Union must look beyond the particular courses being taught by the retiree. This is the only way to do justice to the parties' Local Agreement and supplemental Memorandum. This latter document refers to the "workload performed by the voluntary retiree." Under this Collective Agreement, the workload is the bundle of duties and responsibilities that are computed into the workload formula or SWF. If the workload performed by the voluntary retirees would have continued to exist but for the retirement, then it cannot be said that the workload no longer exists. Accordingly, the parties must look beyond the specific courses being taught by the voluntary retiree to see if a full-time position continues to exist 12 months following the voluntary retirement. The result of this interpretation does not mean that the College's hands are tied with regard to other positions. If, because of a downturn in enrolment or other operational imperatives, the staff complement has to be altered, the College is still free to do so. However, the legitimacy of those decisions would be tested under the traditional Article 2 grievance process. The effect of the ruling in this case is simply with regard to the consequence of the voluntary retiree and the redistribution of his/her workload. To put it simply, if the facts establish that but for the voluntary retirement the full-time position would have continued, the ." 9 Local Agreement and Memorandum required that that position continue to exist. If, at the same time, other circumstances result in the reduction in the full-time complement, management's ability to make those changes is subject to the requirement that it adhere to Article 2 of the Collective Agreement. For all the reasons that are stated above, we agree with the Union's position, and declare that the Employer must look beyond the voluntary retiree's list of courses to determine whether the workload performed by the voluntary retiree continued to exist one year after the voluntary leave. We remain seized with regard to the implementation of this Award should the parties require our further assistance. DATED at TORONTO this 6th day of November, 2006. "John Podmore" - I concur John Podmore, Employer Nominee "Ronald Kelly" - I concur Ronald Kelly, Union Nominee