HomeMy WebLinkAboutUnion 18-06-25
IN THE MATTER OF AN ARBITRATION
BETWEEN:
The College Employer Council
and
OPSEU
(Implementation Issues)
Before: William Kaplan
Sole Arbitrator
Appearances
For the CEC: Wallace Kenny
Hicks Morley
Barristers & Solicitors
For Union: Donald K. Eady
Lauren Pearce
Paliare Roland Rosenberg Rothstein
Barristers & Solicitors
The matters in dispute proceeded to a hearing in Toronto on June 19, 2018.
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Introduction
On December 20, 2017, following a mediation/arbitration, I issued an award resolving
the terms and conditions of a collective agreement in accordance with the Colleges of
Applied Arts and Technology Labour Dispute Resolution Act, 2017. I remained seized to deal
with any disputes arising from the implementation of my award. As it happens, two
implementation disputes have arisen with respect to the Return to Work Protocol
(hereafter “the RTW Protocol”) set out in the award.
In brief, the RTW Protocol provided for lump sum payments to members of the
bargaining unit subject to certain conditions. It also directed that no grievances arising
out of activities during the negotiations and the strike, or related to return to work, be
filed or continued.
The nature of the current dispute may be summarily stated: the union takes the position
that all members of the bargaining unit, and certain individuals who have left the
bargaining unit but remain employed by a college, with the exception of people on
LTD, should receive the appropriate lump sum payment ($900 for full-time, $450 for
part-time). And the union further takes the position that two grievances relating to
denial of union leave for two local presidents to attend a lobbying event at Queen’s
Park are not caught by the prohibition just referred to and should be decided on their
merits. These issues proceeded to a hearing held in Toronto on June 19, 2018.
The RTW Protocol
It is helpful to set out the relevant provisions of the RTW Protocol:
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The College shall provide, by January 31, 2018, the following lump sum payment
to each member of the bargaining unit who was actively employed as of the
commencement of the strike and who returned to active employment upon the
end of the strike:
…
This payment is in full and final satisfaction of all claims, grievances or other
complaints related to workload arising from the return to work from the strike.
…
No grievances will be filed and no unfair labour practice complaints of any kind
will be continued or initiated by either party or bargaining unit member in any
way arising out of any activities during the negotiations, the strike or related to
the return to work.
Union Submissions
Turning to the compensation issue first, the union took the position that the purpose of
the lump sum payments was clear and it applied to everyone who was in receipt of a
salary from a college, whether actively engaged in teaching, or for example, while on
union, PD, pregnancy, parental or sick leave. Moreover, in the union’s submission, even
bargaining unit members who moved outside of the bargaining unit but who continued
to be employed by a college, for instance people transferred from partial load to
sessional or part-time status, were also entitled. The only ineligible employees, in the
union’s view, were those in receipt of LTD.
It was noteworthy, and telling, in the union’s view, that some colleges had paid people
on these different leaves reflecting the fact that the payment was intended for everyone
and was not solely directed at making bargaining unit members whole for extra hours
worked. This was further illustrated by the fact that there was no dispute about the
entitlement of counsellors and librarians to the lump sum even though their workload
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was relatively unaffected by the strike. For all of these reasons, and others, the union
asked for a direction that payment be made forthwith to the affected individuals.
The second issue was, union counsel argued, equally straightforward. The union had
long been involved in lobbying elected officials on matters of academic concern –
shared union and employer concerns – relating, for instance, to college funding and
equal pay for equal work. Two local union presidents sought leave under Article 8.01 –
UNION BUSINESS – to attend a “Lobby Day” event at Queen’s Park on September 20,
2017. These leave requests were rejected and the union argued that the grievances that
were subsequently filed were not caught by the RTW Protocol.
Union counsel argued that these leave applications should be considered separate and
apart from the negotiations etc.: It was just union business as usual. As such, there was
no justification for the colleges not to grant the leaves as arrangements had been made
by the local presidents to ensure the students would be unaffected. Both the union and
the employer agreed that I had the jurisdiction to decide those grievances assuming
they were not barred by the RTW Protocol and submissions were, accordingly, made on
their merits. The union asked for declaratory relief and compensation.
CEC Submissions
In the view of the colleges, the RTW Protocol could not be more clear: its purpose was
to compensate individuals who were actively employed before and after the strike for
the additional work that they would have to perform upon their return to work. That is
why it referred to “active employment.” Had the award wished to confer eligibility on
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anyone in receipt of a college salary, or anyone with employee status, it could have
easily said so. Instead, it had the word “active” modify the word “employment.”
The cases, and several authorities were submitted in support, were uniform: they
consistently interpreted active employment to require presence at work performing
work not mere employee status, and a review of several provisions of the collective
agreement further drove this conclusion home. People on various leaves, including
statutory leaves, were not eligible because they were not actively employed, either
before and certainly after. The conclusion of the labour dispute did not affect their
workload by one iota. The fact that they might continue to accrue other benefits, such as
seniority, was, in the CEC’s view, neither here nor there and not dispositive of their
rights under the RTW Protocol. Moreover, employees who left the bargaining unit were
clearly not covered, they had to be actively employed in the bargaining unit both before
and after the strike, the two essential preconditions for entitlement. In addition, the
payment was not retroactive: it was to compensate for extra work not for work
performed prior to the labour dispute.
In effect, in management’s submission, the union was attempting to convert the lump
sum payments to a signing bonus, which they definitely were not. They were made in
recognition of the extra work that had to be performed by individuals who were
working both before and after the labour dispute. The CEC asked that the request for
these lump sum payments be denied.
In terms of the two contested grievances, the CEC argued that they were clearly caught
by the freeze. The RTW Protocol was unambiguous: “no grievances will be
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filed…continued…by either party or bargaining unit member in any way arising out of
any activities during the negotiations, the strike or related to the return to work.”
Attendance at the “Lobby Day” was clearly related to the negotiations: the evidence
from Hansard and elsewhere indicated that its purpose was to lobby about the issues
that turned out to be central to the labour dispute. The Lobby Day was intended to
influence the government and influence collective bargaining. It was, therefore, the CEC
argued, caught by the awarded freeze. But even assuming it was not, and even
assuming Article 8.01 applied to lobbying activities, the requests were properly denied
pursuant to the collective agreement by the applicable college presidents as both local
union presidents had classes scheduled on the days in question. Management’s exercise
of its rights to reject the leave requests was entirely above board and for proper
pedagogical reasons. The CEC argued that there was no jurisdiction to proceed with
these grievances, but even if there was, they were, on the facts, appropriately dismissed.
Decision
Having carefully considered the written briefs and submissions of the parties, I am of
the view that the union request for payment of the lump sums must be dismissed.
Likewise, the two grievances are caught by the RTW Protocol and may not proceed.
The Lump Sum Payments
The RTW Protocol requires active employment. The reason it does, instead of simply
requiring employee status, is in recognition of the fact that professors who were
employed prior to the strike, and who returned to work afterwards would, of necessity,
have additional duties for which they must be appropriately compensated. The union
acknowledges as much in its brief (albeit taking the position that it had established a
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case for wider application of the lump sum): “The purpose of the lump sum was to
acknowledge that the Union’s members would be required to perform significant
additional work in order to make up for the five-week strike.” Indeed, this is exactly
what the RTW Protocol says: “This payment is in full and final satisfaction of all claims,
grievances or other complaints related to workload arising from the return to work from
the strike” (emphasis mine). The purpose is to compensate people for additional work.
It is not to compensate people who have no additional work such as people away on
leave.
Lump sums inevitably over-compensate some people and under-compensate others,
but they provide a measure of rough justice. They also obviate – as was specifically
intended by the award – the necessity of dealing with numerous and costly workload
grievances (as experience following earlier labour disputes illustrates). These lump
sums are, by the terms of the RTW Protocol, directed at professors who will be
assuming additional duties. The fact that some others such as counsellors or librarians,
or some people on some leaves at some colleges received these amounts is neither
factually nor legally dispositive and does not, in any event, provide much assistance to
the interpretation of the relevant provisions of the RTW Protocol set out above.
Very simply, people who were not actively employed before and after the strike will not
be performing any additional work and have no legitimate claim to the lump sums.
This conclusion is in line with the authorities. They make it clear that employee status is
one thing, but active employment is quite another – the words used in the RTW
Protocol. Active employment means someone who attends at work, works and is paid
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in clear distinction to someone who, while undoubtedly an employee, is not an active
one – such as a person on PD leave. Active employment must be given its normal
meaning: actual attendance at work to perform the duties of an employee.
If the intent was to cover everyone with employee status, or to be a signing bonus, the
award could have, and would have, said so. Significantly, it did not. Obviously, the
award cannot apply to individuals who, while actively employed in the bargaining unit
prior to the labour dispute, did not return to it afterwards. Whether the leave is
statutory or otherwise is likewise immaterial.
The Two Grievances
The RTW Protocol also catches the two grievances. While the employer submissions on
the scope of Article 8.01 were contested, that is a different matter for another day. In this
case, the Lobbying Day was part and parcel of the collective bargaining; of the
negotiations. This conclusion is based on the documents submitted at the hearing in the
briefs of both parties that quite clearly and categorically demonstrate that it was
inextricably linked to the larger project of advancing the union’s collective bargaining
goals.
The award provided for a clean slate by terminating all legal proceedings relating to the
negotiations, the strike, and/or the return to work. The bar was deliberately set low: “in
any way arising out of any activities” (emphasis mine). These two grievances fall within
that scope. They cannot proceed. For whatever this observation is worth, it is not clear,
should there have been jurisdiction, and should the grievances have been decided in the
union’s favour, that the remedy would be anything other than declaratory relief.
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DATED at Toronto this 25th day of June 2018.
“William Kaplan”
William Kaplan, Sole Arbitrator