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HomeMy WebLinkAbout0773-04-U - Plummer 04-06-28 JUN 28 2004 13:07 FR ONT L8BOUR REL B08RD16 326 0431 TO 94164438618 P.03/05 ONTARIO LABOUR RELATIONS BOARD 0773-04~U Ontario Public Service Employees Union and its Local 420 and Harry Plummer, Applicants v. Loyalist College and College Compensation and Appointments Commis~ion. Responding Parties. BEFORE: Mary Ellen Cununings, Alternate Chair. DECISION OF THE BOARD; June 28, 2004 1. This is an unfair labour practice complaint alleging that Loyalist College and the College Compensation and Appointments Commission have interfered with the administration of the union and its representative, contrary to the Colleges Collective Bargaining Act, R.S.O. 1990, c. C15 as amended, ("the CCBA") in requiring Harry plununer to take vacation at a time when the applicant wishes to have him on leave of absence so that he can work as a full-time union representative. The Ontario Public Service Employees Union alleges that the responding parties have breached section 75 of the CCBA: 75. (1) No person who is acting on behalf of the Council or an employer shall participate in or interfere with the selection, formation or administration of an employee organization or the representation of employees by such an organization, but nothing in this section shall be ~med to deprive the Councilor an employer or any person acting on behalf of the Council or an employer of the person's freedom to express the person's views so long as the person does not use coercion, intimidation, threats, promises or undue influence. (2) The Council, an employer or lI1lY 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 is exercising any right under this Act or is Or is not a member of an employee organization; (b) impose any condition OD an appointment or in a conrract of emplo~ent that seeks to restrain an employee or a person seeking employment from becoming a memb~ of an employee organization or exercising any right under this Act; (c) seek by intimidation, by tlrreat 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 an employee to become or refrain from becoming or 10 continue or cease to be Ii member of an employee organization, or to refrain from exercising any other right under this Act, but no person shall be deeml:;d to have contravened this subsection by reaSon of any act or thing done or omitted in relation to a person employed in a managerial or confidential capacity. JUN 28 2004 13:07 FR ONT LRBOUR REL BORRDlc u 326 0431 TO 94164438618 P.04/05 - 2 - 2. This issue has arisen among OPSEU, Mr. Plummer and Loyalist College over the years, because Mr. Phunmer is someone for whom OPSEU regularly seeks year-long leaves, with the result that Mr. Plummer is not available to t;ik:e his regular two months vacation. Related issues have been litigated to arbitration twice, with the grievance dismissed in each case. 3. Most recently, Loyalist College scheduled Mr. Plummer to take six months of vacation, consisting of four months aCCUn1ulated vacation and two months regularly scheduled vacation. Mr. Plummer and OPSEU protest that Loyalist College scheduled the vacation just before OPSEU could request a further year's leave of absence for Mr, Plummer, a request the College should have anticipated, based on Mr. Plummer's long history of activity on behalf of the union. OPSEU filed a grievance, but submits that based on the HCollege scheduling system", arbitration is not likely to happen for a number of months. 4. OPSEU asserts that the employer has engaged in this activity because Mr. Plummer is a union official. The employer, by its actions, is forcing Mr. Plummer to choose between taking the vacation time he has earned. or engaging in protected activity, that is, working for the union. OPSEU submits that the employer is punishing Mr. Plummer for having engaged in protected activity, and the employer is seeking to discourage others from volunteering to work as union officials, who may well fear that working for the union will result in the loss of their vacation credits. Mr. Plummer states that he believes the employer is also motivated by the fact that he is close to retirement, and any Wlused vacation credits will have to be paid out to Mr. Plummer, a liability the employer would like to avoid. OPSEU subrrrits that the employer's actions interfere with the union selecting Mr. Plummer to exercise his skilful representation of the union, a significant detriment. 5. OPSEU argues that Mr. Plummer is being placed in the untenable position of having to choose to take vacation, or to engage in protected activities nnder the Act, at the risk that he will lose the benefit of his vacation entitlement. At the same time, OPSEU is being denied the opportunity to select the representative it desires to be available on a full-time basis to represent its interests, 6. In addition to filing this complaint, OPSEU flied an application seeking interim relief in the form of an order that the College could not require Mr. Plummer to take vacation until the Board heard OPSEU's complaint. The Board dismissed that request, and in my reasons, suggested that the unfair labour practice complaint right be the sort that should be deferred pending the grievance and arbitration procedure. I directed the parties to include submissions on that point as part of their pleadings. 7. Loyalist College and the College Compensation and Appointments Commission responded together. They seek a dismissal of the application on the basis that it fails to make out a prima facie breach of the CeBA. The application will be dismissed against the College Compensation and Appointments Commission (previously the Ontario Council of Regents for the Colleges of Applied Arts and Technology). OPSEU had not made a single allegation against that responding party or suggested how it is implicated in any way in this dispute. 8. The Board is satisfied, however, that OPSEU has pleaded a prima fade case with respect to Loyalist College, which means that if OPSEU proved everything it has alleged, the Board could determine that the employer bad breached section 13 of the CCBA. JUN 28 2004 13:08 FR ONT LRBOUR REL BORRD1c 3 o 26 0431 TO 94164438618 P.05/05 - 3 - 9. However, even after reviewing the reply of OPSEU, I am satisfied that the Board should delay inquiring into this complaint until after the grievance and arbitration process has been exhausted. Tbis dispute is, at its core, contractual, engaging the various provisions under the parties' collective agreement in respect of vacation and unIOn requested leaves of absence. The Board would benefit from an arbitration board's interpretation and application of those provisions. In addition, the Board should avoid the possibility of differing outcomes if the same dispute is litigated in more than one forum. 10. Counsel for OPSEU is concerned about delay. Presumably the parties have some control over the processing of their own grievances. In any event, as counsel for the employer pointed out, there is nO particular prejudice from any delay. Mr. Plummer is away from work and entitled to do what he pleases in the period the eroployer is calling vncation. If the employer is wrong, it will be required to remedy any loss. 11. Counsel for OPSEU argues that deferral is inappropriate because OPSEU's concerns about the interference in its representRtional rights will not be considered by an arbitration board, because of limits placed on the sorts of grievances that it can refer to arbitration. That concern would be more compelling if the Board were proposing to dismiss this complaint. But I am not. I am merely deferring. 12. OPSEU retains the ability to come before the Board and argue that the arbitration Board did not provide remedies which address the union's representation interests. In cases such as Valdi Inc., [1980] OLRB Rep. Aug. 1254, the Board has adjourned the unfair labour practice complaint until the grievance and arbitration process is completed, reserving jurisdiction: ," in order to ensure that (a) the dispute over the meaning of the collective agreement is resolved with reasonable promptness; (b) that the arbitration procedures have been fair; and (c) that the outcome of the arbitration is neither repugnant to the purposes of the Act nor remedially inadequate. As the Board specifically noted in V aId; Inc., at paragraph 7, the Board ".., will exercise its retained jurisdiction where the grievance or board of arbitration fails to deal directly and explicitly with the unfair labour practice issues". 13. This matter is adjoumed sine die, If neither of the parties seeks to bring it back on within a year of the date of this decision, the proceeding will be terminated, without further notice. "Mary Ellen CUlllIJlings" for the Board ** TOTRL PRGE.05 **