HomeMy WebLinkAboutNoah 16-06-04
IN THE MATTER OF AN ARBITRATION
between
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 416
and
ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Grievance of Stephen Noah: OPSEU # 2015-0416-0001
_______________________________________________________________________
Before: Louis M. Tenace (sole arbitrator)
Appearances:
For the Union: Wassim Garzouzi, Counsel
For the College: Jock Climie, Counsel
Heard in Ottawa, May 18, 2016
2
AWARD
The original hearing into this matter took place on December 1, 2015. At that time, there
was considerable disagreement between the parties about the basis for and arbitrability of
this grievance and it was agreed to adjourn the hearing until May 18, 2016. What follows
refers solely to the presentations of both counsel on May 18, 2016 concerning the
preliminary objection raised by the College regarding the arbitrability of the grievance.
The grievor, Stephen Noah, is grieving that the College "failed to grant me the position of
Co-op Consultant of which I was the selected individual by the hiring manager". As
remedial action, he requests:
"full redress and to be made whole, but not limited to: that I be granted
the position of Co-op Consultant; Competition # SS-030-14; that I be
reimbursed any pay that may have or will be lost as a result of not being
appointed to the position and that I be provided that opportunity to upgrade
my education."
The College made a preliminary objection dealing with the arbitrability of the grievance
on the grounds that Mr. Noah was an Appendix D employee and not a member of the
Support Staff bargaining unit at the material time and, consequently, did not have the
right to grieve. According to the College, he was an Appendix D employee and that he
was a "non-unionized, part-time support staff".
The Union submitted that the starting point for this case is the Colleges Collective
Bargaining Act (CCBA). The Support Staff collective agreement is made pursuant to the
CCBA and that nothing in Schedule 1, Sections 3 or 4 of the CCBA excludes Appendix
D employees. The grievor was clearly regularly employed and his hours worked during
the period December 19, 2011 and February 27, 2015 show that, for the great majority of
that period, he consistently worked 24 hours or more per week (Ex-4). Applying these
same facts to the CCBA, it follows that he was regularly employed and that, under the
Act, he must be a member of a Support Staff bargaining unit, either the full-time or the
part-time bargaining unit. Counsel submitted that the College is effectively arguing that
one should ignore the CCBA and follow the College's policies and practices instead. But
the parties can't contract out of the CCBA, even if they agree to something different. The
parties have a statutory obligation to comply with it.
Counsel for the Union introduced Exhibit 1 containing 10 documents related to the
grievance, as well as other exhibits, not all of which will be required or referred to for
purposes of this decision. Two of these exhibits were related to each other: Exhibit 5
which does not have a titled heading and is unsigned by any of the parties and was
identified by Union Counsel as an "internal College policy" referring to certain terms and
3
conditions of employment for "part-time support staff"and Exhibit 6 which is a copy of
Minutes of Settlement signed on behalf of the Union and the College at an arbitration
hearing before Arbitrator Keller on January 11, 2016 and which is related to Exhibit 5.
That arbitration hearing was the result of five union grievances which alleged that the
College had "misinterpreted Art. 1.1 (of the Support Staff collective agreement) by
implementing and following policies wherein a part-time support staff will not become a
full-time employee until they have worked more than 24 hours per week, for 26 weeks in
a 52 week period and further alleged that the College was not providing them with
sufficient data." Without reproducing Exhibit 6 here, suffice it to say that, among other
things, the document stated that the College agreed to amend its current part-time support
staff definition as contained in its current Employee Classification policy to read "After
17 weeks, must work 24 hours or less per week" and that the reference to "17 weeks is a
rolling number of weeks in a 52 week period." The effective date of the policy change
was to be September 1, 2016. Until then, the College's "current practices and policies
shall prevail".The parties agreed to refer the matter to the Union College/Campus
Committee (UCC), and the grievances were withdrawn. The document was signed
"without prejudice or precedent and without admission of liability by the Parties".
The Union position is that notwithstanding the College's policies or past practices, the
parties are bound by the CCBA and the parties are without authority to contract out of
that Act. That being the case, what was done was contrary to the Act and Mr. Noah was
an employee and a member of the Support Staff bargaining unit as established by the Act.
Indeed, Mr. Noah's employment history (Exhibit 4) showed that during the period
between December 19, 2011 and February 27, 2015, he regularly worked more than 24
hours per week about 80% of the time and, practically speaking, consistently worked 37.5
hours per week for all but some 32 weeks. I should dismiss the preliminary objection and
proceed to hear evidence on the merits of the grievance.
Counsel for the Union referred me to the following arbitral jurisprudence in support of its
position:
OPSEU and St. Lawrence College, July 22, 2005, unreported (MacDowell); Niagara
College and OPSEU, 1994 CarswellOnt 6607 (Devlin);
Cité Collégiale c SEFPO, [1997] OLAA No 110 (Picher); La Cite Collégiale Ottawa
[1998] OLRB Rep. July/August 636 (O' Neil); Sault College and OPSEU, Local 612,
February 19, 2002, unreported (Saltman); Durham College and OPSEU, Local 354,
[2012] OLAA No 554 (Knopf); Canadore College v OPSEU, Local 657, [2014] OLAA
No 54 (Leighton); Sault College and OPSEU (Tanya Running), [2012] OLAA No 641,
(O'Neil); Cambrian College and OPSEU, Local 655, unreported, April 15, 2014 (Davie);
OPSEU and Cambrian College, unreported, February 3, 2007 (MacDowell); OPSEU and
Confederation College, unreported, June 29, 2010 (McLaren); Humber College and
OPSEU, unreported, March 25, 1999 (Schiff); Cité Collégiale et SEFPO, 1997
CarswellOnt 7293, 48 C.L.A.S. 560 (Picher).
4
The College submitted that the arbitrator's jurisdiction flows from the collective
agreement. For the College to have breached the collective agreement vis-a-vis an
individual, that individual has to be a member of the applicable bargaining unit. The
grievor was not and the College position is that its treatment of the grievor was consistent
with its long-standing policies and practices of some thirty years, something which the
Union never challenged and for the Union to do so now was clearly evidence of bad faith.
The College can rely on these policies and practices because the Union agreed that it
could . At no time did the Union indicate to the College that there had been a violation of
the Act. Pursuant to The Minutes of Settlement (Ex-6) the parties gave undertakings, in
good faith, to reach "a full and final settlement" with respect to certain grievances relating
to when and how a part-time support staff would become a full-time employee. The
effective date of these undertakings was to be September 16, 2016 and until that date, the
College's current practice and policies would prevail. The Union seems to be now saying
that if the College replaces someone on parental or sick leave for a year with a part-time
support staff employee, that would be a breach of the CCBA. Replacing someone on
leave temporarily does not constitute regular employment and the parties have expressly
agreed to that. In any event, the parties have taken care of that by including Appendix D
employees in the bargaining unit. The College could rely on these policies and practices
because the Union agreed that it could. The Union seems to be now saying that it can't be
held to its prior agreement. Not only is the Union position a demonstration of bad faith,
the doctrine of estoppel should apply in these circumstances. The implied suggestion is
that the College policies and practices are a scheme to prevent people from obtaining
Union representation, a ridiculous accusation according to the College. Replacing
someone on leave temporarily does not constitute regular employment and the parties
have expressly agreed to that. The parties are free to decide what "regularly employed"
means and it does not follow that by doing so they have breached the Act. Further, an
arbitrator has no jurisdiction to re-write the collective agreement. This case should be
dismissed as being inarbitrable.
Finally, Counsel for the College submitted that if I should decide that there was a breach
of the CCBA, the Union should be estopped from bringing that argument on the basis of
it having signed the Minutes of Settlement (Ex- 6) which would meet the test of
detrimental reliance.
Counsel for the College referred me to the following arbitral jurisprudence in support of
its position:
Art Gallery of Ontario v. OPSEU, Local 535, 1992 CarswellOnt 1267, Brandt;
Toronto District School Board and CUPE, Local 4400, 2015 CarswellOnt 2288, 122
C.L.A.S. 40 Sheehan; Conestoga College and OPSEU, Local 237 (Mortazavi), 2015
CarswellOnt 11531, 123 C.L.A.S. Starkman; Toronto District School Board and CUPE,
Local 4400 (McCarthy), 2016 CarswellOnt 5475, 126 C.L.A.S. 241 Steinberg; Thunder
Bay Police Services Board v Mauro (2009), 188 L.A.C. (4th) 100; Westin Harbour
Castle Hotel v UCFCW, Local 333 (2010); Toronto District School Board and CUPE,
5
Local 4400 (C.(T.)), Re (2015); Durham District School Board v OSSTF, District 13
(2000) 59 C.L.A.S. 353; Re Greater Niagara General Hospital and ONA (1987) 7
C.L.A.S. 147; Brown & Beatty Canadian Labour Arbitration, Chapter 2, Jurisdiction of
the Arbitrator, 2.3110.
Decision on Preliminary Objection:
The pertinent provisions of the CCBA, including Schedule 1, Sections 3 and 4 are set out
below as well as Article 1 of the Support Staff collective agreement (Recognition) and
Appendix D (Temporary Employees):
COLLEGES COLLECTIVE BARGAINING ACT, 2008
SCHEDULE 1
Full time support staff bargaining unit
3. The full time support staff bargaining unit includes all persons employed by an
employer in positions or classifications in the office, clerical, technical, health care,
maintenance, building service, shipping, transportation, cafeteria and nursery staff, but
does not include,
(a).....
(b).....
(c).....
(d).....
(e) persons who are included in the part time support staff bargaining unit;
(f).....
(g).....
(h).....
(i) .....
Part time support staff bargaining unit
4. (1) Subject to subsection (2), the part time support staff bargaining unit includes,
(a) all persons regularly employed by an employer for not more than 24 hours a
week in positions or classifications in the office, clerical, technical, health care,
maintenance, building service, shipping, transportation, cafeteria and nursery
staff; and
(b) all persons employed by an employer for a project of a non -recurring kind in
positions or classifications in the office, clerical, technical, health care,
6
maintenance, building service, shipping, transportation, cafeteria and nursery
staff.
(2) The part time support staff bargaining unit does not include,
(lists paragraphs (a) to (g) which are not relevant to this case)
SUPPORT STAFF COLLECTIVE AGREEMENT
1. RECOGNITION
1.1 Exclusive Bargaining Agent
The Union is recognized as the exclusive bargaining agent for all Support Staff
employees of the Colleges, save and except:
- foremen and supervisors;
- persons above the rank of foreman or supervisor;
- employees performing duties that require the use of confidential
information relating to employee relations and the formulation of the
College budget or the Campus budget, as the case may be;
- persons regularly employed for twenty-four (24) hours per week or less;
- students employed on a cooperative educational training program, with a
school, college or university;
- graduates of the College employed for up to twelve (12) months following
completion of their courses and associated with certification, registration
or other licencing requirements;
- persons hired for a project of a non-recurring kind.
APPENDIX D
Temporary Employees
1. The terms of this Appendix apply to persons employed on temporary basis to replace
bargaining unit employees absent due to vacation, sick leave or leaves of absence.
2. The rate to be paid to such an employee shall be the appropriate wage rate applicable
to the position of the replaced employee, subject to progression steps applicable to the
replacing employee, where appropriate.
3. The replacing employee shall be subject to the deductions and remittance of union
dues, as provided in Article 5.4 of the Agreement.
7
4. The Union shall be notified at the commencement of employment, and upon the expiry
of the term of employment.
5. In addition to the hourly rate of pay, the employee shall receive an additional eight per
cent (8%) in lieu of all fringe benefits, including vacation.
6. The employee shall be entitled to the provisions of Articles 6.6, 7.5 and 10 of the
Agreement.
7. The employee may be released by the College before the termination date of any term
of employment, for replacement need changes or operational requirements.
8. Employees covered by this Appendix are entitled to utilize the grievance procedure to
enforce the rights contained in this Appendix.
9. If an employee is appointed to a regular bargaining unit position after September 23,
1997, he/she shall be credited with full seniority, after completion of the probationary
period, based on full credit for Appendix D service calculated at a day's seniority for each
day worked (261 days of work equals one (1) year). When an Appendix D employee is
appointed to a regular bargaining unit position and has previous service as a part-time
Support Staff employee, seniority shall also be credited in accordance with Article 14.3.
10. For the purposes of job competitions, in addition to any other factor that the College
considers relevant, consideration will be given to service with the College.
11. No other provision of the Collective Agreement shall apply to Appendix D employees
unless otherwise stated in this Appendix.
I shall begin with Schedule 1, Sections 3 and 4 of the Colleges Collective Bargaining Act
as set out in full above. The heading to Section 3 refers to a Full time support staff
bargaining unit and sets out who is to be included in that bargaining unit. It goes on to
list in paragraphs (a) to (i) who is NOT to be included in the bargaining unit. As can be
seen above, Section 3 states that the full time support staff bargaining unit does not
include:
(e) persons who are included in the part time support staff bargaining unit;
As shown above, the heading to Section 4 of the CCBA refers to a Part time support
staff bargaining unit and sets out who IS to be included in that bargaining unit as
follows:
(a) all persons regularly employed by an employer for not more than 24 hours a
week in positions................; and
8
(b) all persons employed by an employer for a project of a non -recurring
kind........
Thus, these two categories of persons, if employed under the rubric of paragraphs (a) or
(b) of Section 4, are members of the bargaining unit.
It would appear, then, that a person who works more than 24 hours a week OR a
person who is not employed for a project of a non-recurring nature is not a member
of the part-time support staff bargaining unit. Such persons then would, by default,
appear to be members of the full-time support staff bargaining unit. The CCBA is not
clear as to where they should be placed. It is not reasonable that the wording of the Act
can be construed to mean that it intended to exclude from its coverage or from a
bargaining unit all persons who worked more than 24 hours per week or those employed
for a project of a non-continuing nature irrespective of the duration of their employment.
As outlined above, Article 1. Recognition, of the Support Staff collective agreement,
excludes "persons regularly employed for twenty-four (24) hours per week or less" from
coming under the Union umbrella as the exclusive bargaining agent for all Support Staff
employees of the Colleges. Further, the collective agreement appears to have created
another category of employees in Appendix D of the collective agreement, referred to as
Temporary Employees. These persons have a different set of employment terms. As
outlined above, they receive the appropriate rate of pay applicable to the position, pay
union dues in accordance with Article 5.4 of the collective agreement, receive 8% in lieu
of fringe benefits, including vacation, are entitled to the provisions of Articles 6.6, 7.5
and 10 of the collective agreement, and may use the grievance procedure to enforce only
the rights contained in Appendix D. A final provision states that "No other provision of
the Collective Agreement shall apply to Appendix D employees unless otherwise stated
in this Appendix". It is the College's contention that the grievor in this case is an
Appendix D employee who was not a member of the Support Staff bargaining unit and
not subject to the collective agreement.
The parties had some comments about the meaning of "regularly employed". I do not see
any need to delve into any detailed analysis of this term for purposes of this decision.
There is nothing particularly cryptic about the term. Section 4, (1) (a) of the CCBA refers
in the English language version to "all persons regularly employed"; the French language
version of this Section refers to "toutes les personnes qui, sur une base régulière, sont
employées"; the French language version of the Collective Agreement in Article 1.
(Reconnaissance) uses the words "les personnes employées régulièrement ". Suffice it to
say that neither the Act nor the Collective Agreement offers any definition of "regularly
employed". It seems quite apparent that a person may be regularly employed for virtually
any period, be it 3 or 5 days a week for a periods of 3 months, 6 months or a year or
more. As has been expressed by arbitrators on many occasions, it is the ordinary
meaning that should apply, unless that would produce some outlandish or unlawful result.
9
In my opinion, the grievor was "regularly employed", as a minimum, throughout the
period November 12, 2012 to January 30, 2015. Exhibit 4 shows the grievor working 24
hours per week during the period Deceember 29, 2014 and January 2, 2015; however, as
reproduced below, this is a holiday period during which the College is not operating:
Article 10.2 Holiday December 29 - January 1
In addition, eligible employees shall be granted the holiday period December 25
to January 1 inclusive without loss of straight time hourly earnings for regular
hours scheduled during such period.
I turn next to the grievor's employment record in terms of the hours he worked. It is quite
evident from Ex-4 that the grievor has worked 37.5 hours per week for some 80% of his
employment with the College. While it is true that there were periods when he worked 24
hours per week or less, I subscribe to the reasoning of Arbitrator Devlin in Niagara
College and OPSEU, 1993, where she states at paragraph 21:
There is no doubt that in cases where an employee's hours of work are
subject to ongoing fluctuation, a Board of Arbitration may take into
account a considerable period of employment with a view to
determining whether the employee regularly works a specified number of hours
per week. In this case, however, for a period in excess of nine months
subsequent to February 24, 1992, Mr. Domenicucci was continuously
employed for more than 24 hours per week. His hours were not subject to
fluctuation and given the duration of the period in question, we find that
subsequent to February 24th, he was no longer regularly employed for 24 hours
per week or less.
This reasoning and conclusion was reinforced further by Arbitrator M.G.Picher in La Cité
Collégiale and SEFPO (1997), wherein he concluded that the grievor who had been hired
under a series of "contracts" and worked 35 hours per week between September 16, 1993
and June 1995 was a full-time employee throughout that period and a member of the
bargaining unit.
In La Cité Collégiale Ottawa (1998), a complaint against both OPSEU and La Cité
Collégiale, the complainant, who had worked in the College bookstore for more than
three years complained that she should have been treated as a member of the bargaining
unit rather than as a contractual employee under Appendix D of the collective agreement.
K.G. O'Neill, then Vice-Chair of the Ontario Labour Relations Board, concluded in her
decision as follows:
Further, the evidence does not support the proposition that the union
agreed that the bargaining unit was defined as including only those
positions that the employer had determined were permanent ones. It
supports instead the idea that the union was aware of the employer's
10
practice, questioned it in several instances, and accepted that permanent
positions were to be posted and filled by an interview process. This is not
the same as an agreement to modify the most fundamental cornerstone
of collective bargaining - the definition of the bargaining unit - to the
effect that contractual employees could be excluded for an indefinite amount of
time, regardless of their duties or hours of work.
In the instant case, the Union was aware of the College practice and, indeed, agreed to
some modification of it as exemplified by the settlement outlined in Ex-6.
As can be seen from the grievor's work history as described above (Ex-4), Arbitrator
O'Neil's reasoning, with which I concur, is perfectly applicable to the grievor in the
instant case. Consequently, he is not excluded under that provision of Article 1.
Recognition, of the collective agreement which excludes "persons regularly employed for
twenty-four (24) hours per week or less" from falling under the Union umbrella.
Apart from the cases I have referred to in this decision, I have reviewed carefully the
various jurisprudence to which I was referred by the parties. Some cases are
distinguishable in that they refer to other bargaining units and groups as well as to
collective agreement language and statutory language that has since been amended;
others, although of interest and some relevance, I did not find to be of particular benefit
in reaching my decision. I do wish to emphasize, however, that the jurisprudence is clear
in confirming that the parties do not have the authority to amend the definition of the
bargaining unit. That has been decided by statute. Should the parties wish to amend or
change any description of the existing bargaining units, they may seek to do so through
an application to the Ontario Labour Relations Board.
While parties to a collective agreement may, by agreement, modify the collective
agreement, they are precluded from doing so if the result is in conflict with the statute.
Counsel for the College contends that my jurisdiction to hear this grievance flows from
the collective agreement and that this grievance is not arbitrable and that I do not have
proper jurisdiction to decide it. With respect, my jurisdiction flows from both the
collective agreement and the CCBA. While they are separate entities, they are invariably
intertwined and one derives its legal status from the other. The basis for the College
argument is that the grievor was an Appendix D employee and not a member of the
support staff bargaining unit at the material time. Consequently, he did not have the right
to grieve. He also implied in his argument that there might have been "bad faith" on the
part of the Union since it had agreed to the settlement noted in Ex-6. Finally, he
submitted that based on the above considerations, the Union should be "estopped" from
pursuing this grievance and that it should be dismissed.
Counsel for the Union submitted that my jurisdiction to hear this grievance derives from
both the collective agreement and the CCBA. The collective agreement is made pursuant
11
to that statute and the two are necessarily connected. I agree. Counsel noted further that
there was nothing in the Act that excluded Appendix D employees. Again, I agree.
It is also true that there existed a "past practice" or "policy" of some long duration dealing
with Appendix D employees including how and by what considerations they would "roll
over" and become full-time members of the bargaining unit. This is precisely what the
Memorandum of Settlement (EX-6) dealt with. It is mainly because of this settlement that
the College is alleging "bad faith" on the part of the Union for pursuing the current
grievance. If I were to base my decision solely on this aspect, it might be possible to
make a finding of "bad faith". But that is not the case. The evidence showed (Ex -4) that
the grievor had been employed for a lengthy period of time, as noted above, and should
have been part of the full-time support staff bargaining unit and not treated simply as an
Appendix D employee thereby being denied protection under all aspects of the collective
agreement. It is of little consequence that both parties agreed, openly or tacitly to this
arrangement. As explained above, the CCBA and the jurisprudence say otherwise. Both
parties were in error at the time, undoubtedly in good faith. They were acting contrary to
the CCBA. I have heard nothing to convince me otherwise. I am unable to accept the
College's suggestion that because the Union may now be trying to correct that error or
even acknowledging that what was done was contrary to the CCBA, that somehow this
could constitute "bad faith".
As for the "estoppel" argument, it is clear that an argument of "estoppel" will not succeed
if it would result in something that would be illegal or, in this case, contrary to the
CCBA. As discussed above, the grievor should have been a member of the full-time
support staff bargaining unit at the time he grieved. He had a legal right under the Act to
be so, notwithstanding the long-standing policies and practices of the College. Under
those circumstances, the argument for "estoppel" must fail.
For all of the reasons outlined above, I conclude that I have jurisdiction in this matter
and that I consider the grievance to be arbitrable.
The College's preliminary motion is dismissed. At the outset, the parties asked that I deal
solely with this motion. No evidence was introduced relating to the merits of the
grievance.
I shall canvass the parties shortly to find a date to hear the grievance on its merits.
I thank both Counsel for their patience and forbearance in dealing with what could have
become a very unpleasant matter.
Signed and Dated at Ottawa this 4th day of June, 2016
Louis M. Tenace (Arbitrator)