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HomeMy WebLinkAboutStarbuck 07-03-09 IN THE MATTER OF AN ARBITRATION BETWEEN: CAMBRIAN COLLEGE (the "Employer") - and - OPSEU (the "Union") Grievance of D. Starbuck Grievance 665502 AWARD Board of Arbitration: Paula Knopf, Chair Marc Piquette, Employer Nominee Sherril Murray, Union Nominee Appearances: For the Emplover Wallace M. Kenny, Counsel For the Union Richard A. Blair, Counsel A hearing in this matter was held in Sudbury, Ontario on February 27,2007. The Union alleges that the grievor was forced to take an unpaid leave of absence and thereby suffered a salary reduction in violation of the Collective Agreement. The case arises as a result of the grievor's request for arrangements to be made to allow him to run as a candidate in the last federal election without loss of pay. There is no dispute about the essential facts. For all the reasons that follow, the grievance must be denied. The grievor has been a Professor at the College since 1985. At all material times, he has been a Professor of Mathematics in the Department of Computer and Engineering Studies. The grievor is politically active in his personal life. He ran for office in the 2004 and 2006 federal elections. In 2004, his candidacy caused no problems with respect to his employment or teaching duties because that election was held in late June. As a result, his campaign activities fell outside his scheduled teaching assignments and basically within his "vacation" period. The grievor and the Union had discussed the grievor's candidacy and issues concerning the Public Service Act with the College's President. They reached an arrangement whereby he formally started his vacation one week earlier than had previously been scheduled, and returned from vacation one week earlier as well. This would have no impact on his teaching assignments. The grievor understood that because his campaign activities fell outside of his scheduled teaching time, and because his salary is deemed to be earned during his teaching time, he did not have to suffer any loss of salary as a result of his participation in the 2004 federal election. When the grievor next decided to run for office, he hoped to achieve the same type of arrangement. However, the federal election in 2006 was called for January 23rd. The grievor had been scheduled to teach in the first weeks of January. While the grievor would have preferred to have continued teaching during January, and campaign in the evenings, he recognized that this could conflict with the Public Service Act, and did not make such a proposal. Therefore, 2 he made a proposal to the College that would have rescheduled his vacation and teaching times. His letter to the College President calls his proposal request for an "accommodation", The grievor proposed that he would take his vacation in the first weeks of January and accept a teaching assignment of a particular Mathematics course in May and June to make up for his lost teaching time. Ordinarily, the grievor would not have been scheduled to teach in Mayor June. This proposal would require the compressing of the specific Mathematics course from the normal 16 weeks of classes to eight. However, the grievor felt that this would be feasible because other courses are done this way. He also felt that this would give the College 12 more hours of his teaching time without creating any overload on his SWF and actually save the College some money. He would also not lose any overall salary for the year. The grievor's proposal closed with following note: In my opinion, Cambrian College should be very proud of the participation of members of the broader College community in the political process. In the last election, at least three Sudbury candidates had ties with Cambrian: Diane Marleau is a former BoG chair, Luke Norton is a Cambrian grad and I am both a grad and a faculty member. I have just learned that another recent Cambrian grad, Mark McAllister, will be running in Nickel Belt. It may very well be that there are other candidates who have a connection with Cambrian. This speaks highly of the participation of members of the College community in the political life of our country. The grievor's proposal was sent to the President in early December. The President initially responded by saying that the request would be reviewed and, "I also appreciate the problem-solving approach you have used in providing solutions that may be workable." A follow-up message from the Principal indicated that she had forwarded the proposal to John Hood, the Dean of the grievor's department, because of the Dean's responsibilities for workload and the impact on students. The President also advised that she was seeking advice regarding any legislative and Collective Agreement impacts of the request. Follow-up correspondence to the grievor indicates that the College required the 3 grievor to formally request a leave of absence. The grievor reluctantly made the formal request, and he was granted a leave of absence without pay. As he wrote, "It seems that I have no choice but to apply for a leave of absence to participate in the federal election campaign. I am therefore making such an application. It is unfortunate that a College employee must give up their income in order to participate in the political process." The grievor's testimony made it clear that he was disappointed with the College's response. The grievor felt his proposal was reasonable and that it offered a creative and practical solution for the College. As the grievor testified, "I was looking for ways of not getting here", i.e. to arbitration. The grievor then took his "leave of absence without pay" and engaged in election activities in the first weeks of January. He had been scheduled to teach in January in accordance with the SWF that had been issued in November. To accommodate the students in his scheduled classes, he coordinated with another Professor who taught the first section of the grievor's course during the time while the grievor was campaigning. The grievor was not elected, and resumed teaching duties the morning after the election. During January, he was paid his accrued vacation, however, the value of that was deducted during hislater scheduled summer vacation. Overall, he lost 16 days' salary that year. He seeks the equivalent amount as compensation. The grievor says he never received a "detailed" explanation as to why his teaching responsibilities and vacations had not been restructured to accommodate his request. However, he did recall being told about the College having some concerns with the Public Service Act. He has no recall of any discussions about whether alternative arrangements could have been made, or not. John Hood was the Dean of Computer and Engineering Technology. He is now retired. Mr. Hood confessed to having little recall about the events surrounding the grievor's candidacy in 2006. Mr. Hood did say that he would have disallowed 4 a request such as the grievor's to reschedule January teaching responsibilities to May and June for two reasons. First, Mr. Hood feels that the proposal would be disruptive because it would require two teachers to be assigned to one course in January and create the need to find a replacement for part of the term. This would be difficult for the administration and the students. Secondly, he is opposed to the idea of converting the particular course that the grievor offered to teach in May and June from a 16 to an eight-week format. Mr. Hood said that this would be "pedagogically very poor for the students". Mr. Hood concedes that some Mathematics courses with practical applications are taught in the eight- week, compressed format. However, the course the grievor proposed to teach was a theoretical course that Mr. Hood did not consider appropriate for such compression. He could recall no time when a theoretical course such as this had been offered in that format. Mr. Hood could not recall whether he had actually been contacted about the grievor's request. Mr. Hood simply has no recall of the events. However, he made it clear that he would not have been receptive or agreeable to the concept. The parties agree that faculty members such as the grievor are Crown employees within the meaning of the Public Service Act. Therefore, the following provisions of the Act apply: PART 111- POLITICAL ACTIVITY RIGHTS 28.1 (1) Political activity defined - For the purposes of this Part, a Crown employee engages in political activity when he or she, (b) does anything in support of or in opposition to a candidate in a federal, provincial or municipal election; 28.4 (1) Rights of persons in unrestricted category - A Crown employee who does not belong to the restricted category described in 5 subsection 28.3(3) is entitled to engage in political activity without restriction, subject only to section 28.1 and to the following exceptions: 2. A Crown employee may be a candidate in a federal or provincial election only while on leave of absence granted under subsection (4). Application for leave of absence 28.4 (3) A Crown employee who does not belong to the restricted category and wishes to be a candidate or to seek to be nominated as a candidate in a federal, provincial or municipal election or to campaign on behalf of a candidate may apply to his or her deputy minister for leave of absence without pay. 28.4 (4) Deputy minister - The deputy minister [or designate] shall grant the application. The following provisions of the Collective Agreement are relevant: Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: (i) maintain order, discipline and efficiency; (ii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6 Article 8 UNION BUSINESS 8.01 It is agreed that up to a maximum of five persons per College be released from duty for sufficient time to engage in Arbitration Board Hearings or Provincial Union Committee Meetings for members thereof or Union conventions for elected delegates thereto (which may include seminars or conferences which will be considered by the College concerned on their individual merit(s)), provided such release, which shall not be unreasonably withheld, does not in the opinion of the College President interfere with the efficient operation of the College. Article 15 VACATIONS 15.01 A A full-time employee who has completed one full academic year's service with the College shall be entitled to a vacation of two months as scheduled by the College. A full-time employee who has completed less than one full academic year's service with the College shall be entitled to a two month vacation period and shall be paid the remainder of the employee's prorated annual salary. 15.02 In scheduling vacations, the College will take into consideration the maintenance of proper and efficient staffing of College programs and operations and the requests of employees, The College will notify employees of their vacation period at least four weeks prior to the commencement of the vacation period concerned. It is understood that following notification of vacation periods, vacation schedules may be changed in circumstances beyond the College's control or by mutual agreement. The College agrees that seniority shall be given consideration in resolving conflicting vacation requests. Article 21 LEAVES OF ABSENCE 21.01 Both parties to this Agreement recognize the over-riding professional responsibility to the students. Leaves of absence as provided in this Article will therefore be scheduled where possible to ensure a minimum of disruption to the educational 7 programs of the College. Reasonable notice shall be given to the supervisor concerned. It is understood that leaves under Article 21, Leaves of Absence, or under Article 17, Short-Term Disability Plan (STD), that are for the purpose of dealing with the death, illness, injury, or medical emergency of a person referred to in 21.04 or are for personal illness, injury, or medical emergency should be credited towards the emergency leave provisions of the Employment Standards Act, S. O. 2001. 21.02 Leave of absence for personal reasons and special leave in extenuating personal circumstances may be granted at the discretion of the College without loss of regular salary. Where leave of absence for personal reasons is denied, reasons shall be given in writing to the applicant where requested. 21.03 Leave of absence for religious leave may be granted at the discretion of the College, in accordance with existing human rights standards regarding accommodations, without loss of regular salary. Where leave of absence for religious reasons is denied, reasons shall be given in writing to the applicant where requested. 21.06 A Leave of absence without pay may be granted by the College for legitimate personal reasons. SUBMISSIONS OF THE PARTIES Counsel for the Union concedes that the Public Service Act requires that a leave without pay must be taken by a Crown employee who is a candidate in a federal election. However, it was submitted that the Public Service Act does not require individuals to face a financial penalty for exercising "one of the most important rights in a democracy." The Board of Arbitration was asked to take arbitral notice of the importance of facilitating individuals putting themselves forward as candidates for office in the parliamentary system. It was also said that the grievor's candidacy should be recognized and applauded. Counsel for the Union stressed that it should be recognized that "it is a credit to the vibrancy of the 8 educational mission of the College that a person from their ranks steps forward to participate in the election process." Counsel for the Union asserts that nothing in the Public Service Act precludes an employee from taking a leave without pay during their candidacy and then seeking ways to recover from any salary losses. Accordingly, it was said that an employee who runs in an election could work overtime after the campaign anp recover any lost wages. It was submitted that the grievor's suggestion to rearrange his teaching and vacation schedules could have provided for a similar result. It was accepted that the College has discretion over the scheduling of vacations and teaching responsibilities. However, it was stressed that such discretion obligates the College to consider requests for alteration of those things in a manner that is not arbitrary, discriminatory or in bad faith. The Union submits that the exercise of discretion should be made in conformity with the principles set out in Sf. Lawrence College and OPSEU (McDermott Grievance), decision of Gail Brent dated November 8, 1989, which incorporates the Divisional Court's directive in the same matter, which was issued on February 17,1989. In addition, the Union argues that the obligation to consider the requests for changes in schedules and vacations must be exercised fairly, with attention to the particular merits of the request, and without regard to some "rigid or pre-established policy" in accordance with the decision in Fanshawe College and OPSEU (Skinner Grievance), decision of Rick MacDowell dated September 3, 1992. While Union counsel conceded that the decision in the Fanshawe College case dealt with collective agreement language which is not the same as the provisions applicable in this case, it was suggested that the principles in that case were applicable to the exercise of discretion. Accordingly, it was said that the College failed to properly consider the grievor's request to ameliorate the financial impact of his candidacy. It was suggested that the College's rigid application of the Public Service Act failed to give proper consideration to the grievor's suggested "accommodations" or alternative arrangements. The Union does not allege bad 9 faith; it simply alleges that the College failed to give any "real consideration" to the merits of the grievor's request. The Union also suggests that there is no legitimacy to the College raising pedagogical concerns about granting the grievor's request. It is pointed out that under the Public Service Act, Section 28.4(6), the leave of absence had to be granted to the grievor in January, Therefore, any concerns about impact of students at that time would have to be ignored because that leave itself had to be granted. It was also submitted that the evidence of the College "falls short of demonstrating any real consideration of the merits of the grievor's request." It was suggested that the spirit of the Public Service Act is to enhance the rights of public servants to facilitate their participation in the parliamentary process. It was said that the College could and should have considered ways of allowing the grievor to run for office without suffering a financial loss. It was said that this would not have violated the Public Service Act. Accordingly, the Union asked that the grievance be allowed and the grievor be awarded compensation of his lost 16 days of pay, plus benefits. The Board of Arbitration was asked to remain seized with regard to implementation of such an Award. Counsel for the College relies on the Public Service Act, and argues that the College had no option other than to allow the grievor a leave without pay so that he could run in the federal election. It was said that his request for "an accommodation" was problematic because of the fact that salaries under this Collective Agreement are paid on an annual basis. Therefore, as salaries are not allocated to any specific week, it was said to be difficult to conceive how he could be granted several weeks of leave without pay without suffering any financial loss. It was submitted that the Public Service Act requires that an employee must be on leave without pay while running for federal office, and that is what took place in this case. Counsel for the Employer submitted the following two cases that deal with the constitutional validity and importance of the Public Service Act: Re Ontario Public Service Employees Union et al. and Attorney-General for 10 Ontario (1980) 118 D.L.R. (3d) 661 (C.A.); and Re Ontario Public Service Employees Union et al. and Attorney-General of Ontario) (1988) 65 O.R. (2d) 689 (H.C.J,). It was stressed that the grievor was granted a leave without pay in accordance with the statutory obligations. The Employer argues that nothing in the Collective Agreement required the College to reschedule the grievor's vacation or teaching responsibilities. Indeed, it was submitted that those matters are entirely within the rights of management. The College also rejects the Union's suggestion that it failed to give proper consideration to the grievor's request. While conceding that Mr. Hood's recollection was not strong, it was submitted that the documentary evidence indicates that the College turned its mind to his request, and that the President initiated an exploration of issues concerning the impact on students, workload, and legislative and Collective Agreement matters. Therefore, it was said that there was sufficient evidence to show that the College turned its mind to appropriate matters. In addition, it was said that there is no basis in the Collective Agreement for the Union to challenge the exercise of management's rights in this case. Further, it was said that Mr. Hood's evidence explained that it would not have been pedagogically sound to rearrange and compress the teaching of the theoretical Mathematics course from a 16 to an eight-week format. Counsel for the College points to several articles in the Collective Agreement where the College is required to give reasons for its decisions or is required to exercise discretion in a reasonable way, such as Articles 8.01,21.02 and 21.03. It was stressed that no such requirement exists with regard to the scheduling or alteration of vacations or workloads. It was submitted that while the College is under no obligation to provide any rationale for its decision in a case such as this, the evidence is sufficient to show that proper consideration was given to the grievor's request. Further, it was said that the evidence of Mr. Hood shows that the grievor's request would not have been granted for valid pedagogical and operational reasons. Counsel argued, "no windfall of pay should follow from 11 these events because nothing in the Collective Agreement or the Public Service Act obligated the College to provide the grievor with any pay" during any of the relevant times. Counsel for the Employer also submitted that the events of 2004 should be considered distinguishable from the 2006 election campaign. It was said that in 2004, the grievor was able to engage in his campaign duties without raising any conflict with his scheduled teaching or faculty responsibilities. Simply put, there was no conflict with his teaching schedule. While counsel suggested that the College's failure to not reduce the grievor's salary in 2004 may not have been within strict compliance of the Public Service Act at the time, that situation should have no bearing on the different fact situation that arose in January 2006. THE DECISION The reasons why the Public Service Act requires that a person be allowed a leave of absence without pay to run for legislative office were articulated in the decision of OPSEU v. Ontario (Attorney-General), supra, at page 10, where the Court said: As to the requirement that the leave of absence be without pay, I must say that that seems to me to be a perfectly proper companion piece. In the simplest of terms, no work, no pay. Realistically, one could not expect a person to be able to carry out his or her functions in the public service and at the same time perform the duties and obligations of a Member of Parliament at Ottawa or of a Member of the Legislative Assembly in Toronto. If such a person is thus unable to carry out his functions and responsibilities as a public servant, I can see no justification for paying him. That would surely be an unfair subsidization by the taxpayer of that candidate for public office as against a candidate who was not employed in the public service. In addition, if it were otherwise, the public servant by holding his post and receiving a salary for it would at the same time be placing his political affiliations and activities on most public prominent display during the campaign. I say, during the campaign, because if the public 12 servant is elected to a federal or provincial seat, the legislation requires that he must resign his position as a Crown employee, and that provision is not attacked in these proceedings. But during the campaign period the usual and normal activities of a candidate for elective office could not in my opinion be anything but severely detrimental to his position as a public employee in the event he fails to win a seat and goes back to his job as he is entitled to do. Running for office is surely one of the most intense areas of partisan political activity. The collision of that activity with the conceded importance of maintaining an impartial public service is to my eyes obvious. No lesser provision than the requirement of leave of absence could be appropriate in the circumstances and in my view, the Oakes tests are fully met and s. 1 preserves s. 12(1). A College Professor is a Crown employee under the Public Service Act. As such, when s/he chooses to run for federal office, s/he is entitled to a leave of absence. That leave of absence must be without pay in accordance with Section 28.4(3) for the reasons set out in the quotation above. In the case at hand, the timing of the federal election coincided with the beginning of the Winter term of classes. The Union and the grievor recognized that the Public Service Act required him to take a leave of absence that overlapped with his scheduled teaching duties. That is why he applied for the leave of absence. It was granted as is required under the Public Service Act, regardless of any pedagogical or operational concerns about interruptions to his courses. His request to the College and his request to this Board of Arbitration are essentially to find a way to schedule the leave and his duties without any loss in annual salary. The Union is correct that the Public Service Act does not preclude employees and employers from finding solutions to make up for lost salary during a leave of absence without pay. The Union's suggestion of an employee/candidate being able to work overtime or taking on additional responsibilities after the leave may well be tenable in some circumstances. However, the Public Service Act remains clear that the leave of absence must be without pay. The citation above explains 13 the rationale for this requirement. Therefore, it must be concluded that the College acted in compliance with the Public Service Act when it granted the grievor such a leave for the 2006 federal election. Can it then be said that the College violated the Collective Agreement by declining to grant the grievor's request for an alteration to his scheduled vacation or teaching duties in 2006? The answer to that must be "no". The assignment of teaching responsibilities and vacations are matters within the discretion of the management of the College. See Articles 6.01 (ii) and (iii), as well as Article 15.02. In particular, the rescheduling of vacation requests must be done with the College's consent. While there is general arbitral acceptance that collective agreements must be administered without any arbitrary, discriminatory or bad faith considerations, this does not mean that every exercise of management functions is subject to arbitral intervention. The onus remains on the Union to establish that there has been a violation of the collective agreement or the law. The evidence here shows that the grievor made a request for the alteration of his vacation and teaching schedules so that he would not suffer any financial impact from his unpaid leave of absence during the federal election campaign. His proposal was not unreasonable. The evidence of how it was considered was sparse. But the evidence does show that the proposal was considered, and that legislative, contractual and pedagogical impacts were referred for examination. These were all valid and reasonable concerns. In an ideal situation, we would have preferred to see that there had been a dialogue between the parties about different options, or there might have been a clear explanation offered to the grievor at the time as to why his proposal was not accepted. But nothing in this Collective Agreement required the College to provide the grievor with reasons why it was rejecting his proposal. This situation is different from those contemplated in Articles 21.02 or 21.03, where the College is contractually obligated to provide reasons for the denial of a request. We also note from the grievor's evidence that he did receive "some" explanation. Therefore, there is 14 sufficient evidence to show that the College considered the grievor's request. There was also no evidence that the College acted unreasonably, discriminatorjly or in bad faith. The teaching situation was quite different in 2004 when the grievor was able to run for office without loss of salary. Therefore, the College has presented viable reasons why the grievor's suggestions were not accepted in 2006. We agree with the Union that the College must consider requests for leaves of absence, alterations of workload or alterations to vacations. But when those requests are denied, in order for the Union to succeed with the grievance, it must fulfill its onus of establishing a reason to interfere with the College's decision. In the case at hand, the evidentiary onus has not been met. Accordingly, we must conclude that there has been no violation of the Collective Agreement. Therefore, the grievance is dismissed. DATED at TORONTO this 9th day of March, 2007. "Paula Knopf' Paula Knopf, Chair "Marc Piquette" I concur Marc Piquette, Employer Nominee "Sherril Murray" I concur Sherril Murray, Union Nominee