HomeMy WebLinkAboutUnion 18-04-19In the Matter of an Arbitration
Between
Art Gallery of Ontario (employer)
And
OPSEU (union)
Before: M. Brian Keller, Arbitrator
Alan Freedman, for the employer
Jesse Gutman, for the union
Hearing in Toronto, January 26, 2018
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AWARD
This award deals with a policy grievance that OPSEU filed in relation to the
contracting out of audio-visual services that are provided for events at the
Gallery. The grievance was referred to arbitration and I was appointed by the
parties as a sole arbitrator to hear the grievance.
At the outset of the hearing on January 26, 2018, the parties agreed to have me
act as a mediator-arbitrator under section 50 of the Labour Relations Act, 1995.
They further agreed to expand my jurisdiction beyond the terms of the grievance
to deal with all issues raised by the parties in the mediation phase of this case.
This award sets out my decision on these issues.
The grievance alleges a breach of Article 36.01 of the full-time collective
agreement and Article 21.01 of the part-time collective agreement between the
parties. These provisions state:
Full-Time Collective Agreement
ARTICLE 36— CONTRACTING OUT
36.01 No Bargaining Unit employee shall be laid off or terminated as a
result of the employer contracting out any of its work or services.
No union positions shall be contracted out when an employee can
perform the position and all such positions shall be posted in
accordance with Article 17— Vacancies and New Positions.
In circumstances where the Gallery is considering using third party
services due to scheduling, resource, technical, or capacity
reasons, the Department Manager will meet with the Local
President or designate to seek advice and discuss where the
capacity to service may be met with in-house resources, the type
of third party service to be utilized, and the duration of the
assignment.
Part-Time Collective Agreement
ARTICLE 21 — CONTRACTING OUT
21.01 No regular part-time Bargaining Unit employee shall be laid off or
terminated as a result of the Employer contracting out any of its
work or services.
In the circumstances where the Gallery is considering using third-
party services due to scheduling, resource, technical, or capacity
reasons, the Department Manager will meet with the Local
President or designate to seek advice and discuss where the
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capacity to service may be met with in-house resources, the type
of third-party service to be utilized, and the duration of the
assignment.
At the hearing, it became apparent that the real issue in the grievance was the
Gallery's ability to contract out audio-visual services for events instead of
assigning the work to occasional part-time employees. The grievance was
therefore really about the parties' rights under Article 21.01 of the part-time
collective agreement.
In issuing this award, I have determined that it is appropriate to make a
demarcation between internal and external events. The following definitions will
generally apply to internal and external events unless otherwise mutually agreed
between the parties:
•Internal events: Any event booked by an internal department such as
education lectures and public programming, Development donor and
sponsor recognition events, Curator and President Circle events,
Volunteer events, etc.
•External events: Any event booked by an external corporate or private
client such as weddings, bar mitzvahs, conferences, corporate AGMs,
trade shows, product launches, corporate galas, etc.
Audio-visual services shall be generally provided in the following manner unless
otherwise mutually agreed between the parties:
•All audio-visual requirements for external events at the Gallery, with the
exception of those located in Jackman Hall, may be contracted out by the
Gallery to be handled through a third party audio-visual services provider.
•Jackman Hall will be serviced exclusively by in-house audio-visual
services (for clarity, the issue of contracting out the work or services of
projectionists working in Jackman Hall was not covered by the instant
Grievance and is not covered by this award).
•In-house audio-visual services will have first refusal on all internal events.
If it is determined by the Gallery that in-house audio-visual services are
unable to service an internal event due to scheduling, resource, technical
or capacity reasons, then the Gallery may contract out such work to a third
party provider.
•As an exception to the above, the Gallery may contract out audio-visual
services for large scale internal fundraising events such as Shadow Ball
and Massive Party where the capacity to service is beyond in-house
resources. In these exceptional circumstances, however, Gallery
employees will continue to service all audio-visual requirements of artwork
commissioned for those events.
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Article 21.01 of the part-time collective agreement remains the governing
provision in respect of contracting out and the parties shall abide by its terms.
The second paragraph of Article 21.01 states that where the Gallery is
considering using third party services due to scheduling, resource, technical or
capacity reasons, the Department Manager will meet with the Local President or
designate "to seek advice and discuss where the capacity to service may be met
with in-house resources, the type of third party service to be utilized, and the
duration of the assignment"
In my view, it is appropriate that a committee be established for the purpose of
discussing the Gallery's audio-visual services operation, including its audio-visual
services capacity. The establishment and meetings of this committee in
accordance with the terms of this award shall be deemed to satisfy the
obligations set out in the second paragraph of Article 21.01 of the part-time
collective agreement insofar as audio-visual services are concerned.
There shall be an equal number of Union and Management members on the
committee, with the Union members consisting of two employees, the OPSEU
Local President or designate and the OPSEU Staff representative. The
committee shall meet every six months or, if the parties mutually agree, more
frequently.
The committee shall engage in meaningful discussion of the matters covered by
Article 21.01. When the Gallery's contract with its current third party audio-visual
services provider comes up for renewal and before the Gallery goes to market
again for these services, the Union can make representations at the committee in
support of trying to have more of this work assigned to employees in the
bargaining unit. The Gallery, however, retains the sole discretion to make
decisions regarding the contracting out of audio-visual work or services within the
terms of Article 21.01. At the same time, the Union retains the ability to assert its
rights under Article 21.01.
I shall remain seized with any issues arising from the implementation of this
award.
Ottawa, this 19th day of April, 2018
M. Brian Keller, arbitrator