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HomeMy WebLinkAboutHolmes Group/Union 09-03-07 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") - AND - ST. CLAIR COLLEGE (the IICollegell) AND IN THE MATTER OF OPSEU GRIEVANCE NOS. 2008-0317-002 (813702) - DARREN HOLMES GROUP GRIEVANCE, 2008-0137-0005 (813705) - UNION GRIEVANCE, AND RELATED INDIVIDUAL GRIEVANCES BOARD OF ARBITRATION Robert D. Howe, Chair Ron Davidson, Union Nominee John podmorer College Nominee APPEARANCES For the Union Val Patrick, presentor Flory Lang Ross Langill (and others not identified on the Union's appearance sheet) For the College Barry Brown, Counsel Patti France Joan Pocock A hearing in the above matter was held ln Windsor, Ontario, on January 16, 2009. AWARD The grievances which gave rise to the proceedings before this Board of Arbitration (the "BoardU) include a Union policy grievance, a group grievance, and a number of individual grievances. All of those grievances allege that the College violated the partiesl collective agreement (the "Agreement") by determining that certain twelve-month positions would become less than twelve-month positions after support staff had already been occupying those positions, and by stating that those positions were redundant but offering them to the same support staff with the same PDF and/or job duties! and with the only change being that they would be less than twelve-month positions. The parties' representatives agreed to set aside the individual grievances (with the Board remaining seised of them) and to have the Board determine whether the Agreement precludes the College from doing what it has done in respect of those positions, and whether the Agreement precludes the College from doing what it intends to do in effecting the contemplated annual two-month layoff from those positions. To obviate the need to call any witnesses during this phase of the proceedings, they also agreed to proceed on the basis of stipulated facts. One of the positions in question was a Technician position. The remainder were all Technologist liB II positions. All of them had been twelve-month positions since the year 1 2000. Prior to that, some or all of them had been less than twelve-month positions. In early May of 2008, each of the affected employees received a letter exemplified by the following letter dated May 5, 2008 to Darren Holmes from the Chair of the College's School of Engineering & Manufacturing, Dr. Adel Esayed: Mr. Darren Holmes PERSONAL AND CONFIDENTIAL Dear Darren: It is with regret that this letter serves to inform you that in accordance with the Collective Agreement for Support Staff Employees, the position you currently occupy has been declared redundant effective April 2, 2008 and has been recreated as a ten (10) month position. Your hourly rate will be maintained for a ninety day period. You are temporarily assigned to the position you currently hold until the committee determines if there are other options for you. The Stability Committee will continue to meet to determine if there is a twelve month permanent position for you or you will also have the option of accepting your current position at ten months, or layoff. Options will be provided to you in a follow-up letter. If no twelve month position is identified for you or you elect to stay in your current position at ten months, you will be laid off effective August 2, 2008. Due to the ongoing stability process, the layoff for this year would only be one month. For future years, your Chairperson will determine the best time for the two month layoff period! should you elect to stay in the ten month position. Your Chairperson will work with you to ensure that you have used your vacation allotment prior to August 2, 2008. Although the displacement options may differ from employee to employee, each of the affected employees also received a follow-up letter exemplified by the following 2 letter, which is also dated May 5, 2008, from Dr. Esayed to Mr. Holmes: It is with regret that this letter serves to inform you that in accordance with the Collective Agreement for Support Staff Employees, the position you currently occupy has been declared redundant. However, the College and the Union through the Support Staff Stability Committee have determined that you possess an appropriate skill set to be provided with the following choices: You may elect to remain in your current position which has been re-created as a ten (10) month position OR You may elect to displace the Heath & Safety Officer, Payband H. In this position your hours are 35 hours per week and you will report to Ms. R. Demchuk. As the Stability Committee is still working through the process the effective date of your transfer should you elect to bump will be provided at a later date, however, you will receive notice before you move. In accordance with Article 15.4.4.1 of the Collective Agreement for Support Staff! you may also elect in writing to be laid off in lieu of the above reassignment, provided such election is made within five (5) working days of this letter. I would also remind you that the Support Staff Stability process is strictly confidential. In light of the fact that your election has an effect on the remaining placement and displacement scenarios, please do not share this information with anyone other than your Union Executive, the Manager, Human Resources, the Director, Human Resources or me. The College acted in good faith in making those changes, which will reduce its annual operating costs by over $95,000. However, the loss of one-sixth of their annual remuneration, coupled with their loss of benefit coverage (or the costs which they will incur if they wish to maintain that coverage during the contemplated annual two-month layoff), 3 will be a substantial financial burden for the affected employees, many of whom are long term employees of the College. Those fourteen individuals constitute about five percent of the approximately 250 employees in the bargaining unit. In his submissions on behalf of the Union, Mr. Patrick contended that the positions in question were shrunk from twelve-month positions to ten-month positions, but were not actually eliminated. He analogized the situation to a production line job which is not eliminated during a summer hiatus in which the line is not running. Thus, he described the matter in issue in these proceedings as being whether the College is entitled to reduce a twelve-month position to a permanent ten-month position! and contended that it cannot do so. The College, on the other hand, contended that the twelve-month positions were eliminated because they were no longer needed (due to the lack of January student intakes and the resulting absence of students during the summer months), and that new ten-month positions were created to reflect the Collegets revised needs. Thus, in his submissions on behalf of the College, Mr. Brown described the issue as being whether it can eliminate existing twelve-month positions, layoff the employees in those positions, and create ten-month positions in their stead. During the course of argument, reference was made to a number of provisions of the Agreement, including Articles 6 and 15. Mr. Patrick referred to the Article 6.1.1 "normal 4 work week" of between thirty-five and forty hours in support of his contention that retention of existing hours is a theme of the Agreement. However, as noted by Mr. Brown, Article 6.1.3 records the parties! understanding that those provisions "are intended only to provide a basis for calculating time worked II , and that they IIshall not constitute a guarantee of hours of work per day, or days of work per week or for any period whatsoever. II (Although Article 6.1.2 provides for the retention of existing hours of work for certain employees, the affected employees in the instant case do not fall within the scope of that provision.) Article 15.1 provides: An employee who has completed the probationary period shall not be laid off or subject to the layoff process, for any reason, unless and until the procedures contained in Article 15 have been applied in sequence. The ensuing provisions of Article 15 detail the layoff process, which includes a four-step bumping procedure following meetings of the Employment Stability Committee, and which permits an employee to elect to be laid off in lieu of being reassigned pursuant to that procedure. Article 15 also provides for recall by seniority (and contains a number of other provisions, including some pertaining to retraining and contracting out) . In support of their respective positions, both the Union and the Employer also relied upon the provisions of the following letter of understanding (the "Letterll) appended to the Agreement: 5 August 27, 1981 Mr. Sean O'Flynn President Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario Dear Sir: LESS THAN 12 MONTH POSITIONS It is recognized that the Colleges have positions within the bargaining unit from time to time that! because of the nature of the service rendered, require staffing for less than twelve (12) months a year. In such a case, where less than full time employment is identified prior to the time of hiring such employees, the College may effect a layoff of such employees for a period of up to but not exceeding three (3) months in any employment year without regard to the provisions of the Collective Agreement. Notwithstanding the foregoing, seniority and service shall accumulate for all purposes under the Collective Agreement during such period of layoff. This provision shall have no application where the employee in lieu of layoff hereunder has been granted a leave of absence in which case Article 14.2 shall have application. Prior to posting such a position, the College shall notify the Local Union of the circumstances and, where the Local Union requires discussion and explanation as to the basis for such a position being reduced to less than a twelve (12) month basis, it may request a meeting with the College, at which time a full explanation of the circumstances surrounding the designation of the position shall be given. Yours truly, A.M. Pesce, Secretary Staff Affairs Committee Mr. Patrick argued that the inclusion of the phrase IIfrom time to time" indicates that the use of less than twelve-month positions lS clearly intended to be an exception. Although the inclusion of that phrase provides some indication that the Letter contemplates that less than twelve-month 6 positions will only be required occasionally, nothing before us suggests that the College has frequently resorted to that option, or that the instant case does not involve an instance in which the positions in question legitimately require staffing for less than twelve months a year because of the nature of the service rendered. Thus, the inclusion of that phrase does not assist the Union in the circumstances of this case. Mr. Patrick also argued that the Letter does not permit the College to layoff the employees in question for two months a year without regard to the provisions of the Agreement, because less than full time employment was not identified "prior to the time of hiring such employees". He noted that one of the management rights included in Article 3 of the Agreement is the right to "hire", and argued that the word "hiring" contained in the Letter should be given its ordinary meaning, namely, that an individual who does not work for the College is hired to work there. Thus, he argued that the "time of hiring" referred to in the Letter is the time at which the individual commences employment with the College. Accordingly, he contended that the process which the College followed under Article 15 during the Spring of 2008 will have to be repeated ln each subsequent year in which the College elects to layoff from those positions for two months employees for whom less than full time employment was not identified prior to their time of hiring by the College, as the circumstances of this case do not fall within the 7 exception to Article 15 created by the Letter. In responding to the Union's submissions, Mr. Brown noted that the affected individuals were all offered the full panoply of rights under Article 15 in the Spring of 2008. He also referred, by way of analogy, to Air-Care Ltd. v. United Steel Workers of America et al, [1976] 1 S.C.R. 2, and Re Ballycliffe Lodge Ltd. and Service Employees Union, Local 204 (1984), 14 L.A.C. (2d) 37 (Adams), which indicate that a reduction in work hours uniformly applied across the bargaining unit does not constitute a layoff triggering the seniority provisions of a collective agreement, although a reduction in work hours, if applied in an unequal fashion, may constitute a layoff triggering such provisions. In replying to that portion of Mr. Brown's argument, Mr. Patrick expressed complete agreement with those two cases but submitted that they have nothing to do with the present case, as it does not involve a uniform reduction of hours. He also submitted that giving employees a one-time bump deprives them of their right to recall when the position starts up again following the two-month layoff. Mr. Brown argued that in the absence of any contractual language to the contrary, an employer has the management right to eliminate positions and create other positions to meet its needs. In addition to the Article 3 Management Functions clause, Mr. Brown relied upon the Letter in support of his contention that the College was entitled to eliminate the aforementioned twelve-month positions which it 8 no longer needed, and to substitute less than twelve-month positions. He argued that the "time of hiring" referred to in the Letter is the time at which the less than twelve-month position is offered to the individual in question, not the time at which that individual initially became an employee of the College. In support of that argument! he referred to the second paragraph of the Letter, which refers to IIposting such a position". He submitted that in the context of the Letter, the word "hiringU captures not only persons coming into the position from outside the College but also persons coming into it from within the College, all of whom enter the position knowing that it will be a less than twelve-month position from which the College may lay them off for up to three months in any employment year without regard to the provisions of the Agreement. He also argued that interpreting that word in the manner advocated by the Union would render the Letter null and void in relation to any existing employee applying for the position. He submitted that the Letter is permissive, enabling the creation of less than twelve-month positions exempted from the layoff provisions of the Agreement where the layoff does not exceed three months in any employment year. He further submitted that the Letter does not guarantee that any twelve-month positions will continue, but rather recognizes that it is up to the College to decide that, because of the nature of the service rendered! less than twelve-month positions are appropriate. In replying to those submissions, Mr. Patrick noted 9 that the Union is not saying that the College cannot reduce its workforce by laying off employees, but is merely saying that in doing so it must follow the procedures set forth in Article 15. He submitted that the Letter cannot be used to eliminate existing employees' substantive rights under that provision. As contended by Mr. Brown, in the absence of contractual language circumscribing such rights, an employer has the management right to eliminate positions and the right to create other positions to meet its needs. In the instant case, those rights fall within the purview of Article 3.1, in which the Union acknowledges that it is the exclusive function of the College to (among other things) "generally 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 Agreementll. However, Article 3 also includes the College's agreement that those functions "will be exercised in a manner consistent with the provisions of this Agreement". Layoffs resulting from the elimination of positions 10 typically trigger collective agreement seniority provisions, as occurred in the instant case in which all of the affected employees were given the aforementioned options to which they were entitled under Article 15 of the Agreement. The issue to be determined in this award is whether that was a one-time requirement, or whether it will have to be repeated on an annual basis each time the College lays them off for the contemplated two-month period. Deciding that issue requires us to interpret the above-quoted Letter. The second paragraph of the Letter clearly contemplates a twelve-month position "being reduced to less than a twelve (12) month basis". It also contemplates the posting of such a position (after the College has notified the Local Union of the circumstances! and provided a full explanation of the circumstances if the Union requests a meeting for discussion and explanation purposes). In the instant case, the College notified the employees in question in May of 2008 that the positions they currently occupied had been declared redundant (effective April 2, 2008), and that those positions had been re-created as ten-month positions. Following the meetings of the (Support Staff) Employment Stability Committee required by Article 15, they were each given the option of remaining in their current position which had been re-created as a ten-month position, electing to exercise their bumping rights, or electing to be laid off in lieu thereof. Whether the employees who selected the first option are entitled to similar options under Article 15 in 11 each subsequent year in which the College elects to lay them off from those positions for the contemplated two-month period depends upon the interpretation to be given to the phrase Utime of hiringl1 in the second sentence of the Letter. If, as contended by the Union, that phrase means the time at which an individual was initially hired by the College, then the employees will be so entitled. However, if that phrase means the time at which the less than twelve-month position was offered to the individual in question, as contended by Mr. Brown, then the College will be at liberty to lay them off for a two-month period without regard to Article 15 or any of the other provisions of the Agreement. As noted in Mitchnick and Etherington, Labour Arbitration in Canada (2006, Lancaster House), at pages 311-12, it is a well established principle "that the provisions of a collective agreement should be construed strictly against authorizing the loss, forfeiture or undermining of seniority, or the rights and privileges which would otherwise attach to seniority", such as the rights which Article 15 provides to non-probationary employees when layoffs occur. In respect of a layoff for a period of up to three months in any employment year, the Letter forfeits those rights for employees to whom less than full time employment was identified "prior to the time of hiring such employees". That exception applies to a person who enters the employ of the College with the knowledge that the position being accepted requires staffing for less than twelve months a year. 12 However, having given the matter careful consideration, we have concluded it does not apply to existing employees who entered into the employ of the College without "1ess than full time employment" being identified to them prior to their time of hiring. If the Letter were intended to apply not only to new hires but also to existing employees, phraseology such as "prior to the time such employees obtain the position" could easily have been used in place of IIprior to the time of hiring such employeesll (or words such as "or prior to the time at which such employees post into or otherwise obtain the position" could have been included after the existing phrase) . The reference in the Letter's second paragraph to "posting such a position" does not, in our view, indicate that the exemption created by the first paragraph was intended to apply not only to new hires but also to existing employees! as a posted position can be filled by a new hire when there is no suitable internal applicant. In the absence of any evidence of bargaining history or past practice indicative of a shared understanding that the phrase "time of hiring" is to be given the unusual meaning advanced on behalf of the College, we are not persuaded that it should be so construed in the context of this Letter which, if applicable, deprives employees of the important seniority-based protections set forth in Article 15 of the Agreement. For the foregoing reasons, we have concluded that although the College is at liberty under the Agreement to 13 eliminate existing twelve-month positions, layoff the employees in those positions, and create ten-month positions in their stead, when it effects the contemplated annual two-month layoff from the positions in question it may only do so "without regard to the provisions of the Collective Agreement II (such as Article 15) in respect of employees to whom less than full time employment was identified prior to the time they were hired by the College. Since nothing in the stipulated facts indicates that any of the employees covered by the grievances fall within the scope of that exemption created by the Letter, all of them who accepted the College's offer of remaining in their current positions re-created as ten-month positions will be entitled to avail themselves of the options provided by Article 15 each time the College effects the contemplated annual two-month layoff from those positions. In accordance with the agreement of the parties, we shall remain seised of all of the grievances for the purpose of hearing and deciding any remaining issues which the parties are unable to resolve. DATED at Burlington, Ontario, this 7th day of March, 2009. c1eri~/4JL Robert D. Howe Chair I concur. "Ron Davidson" Union Nominee 14 Dissent With respect I cannot join with the majority regarding this Award The Award describes a very narrow interpretation of the word IIhire". I prefer the interpretation given by the Employer's Counsel in that "time of hiring" in the Letter of Understanding applies directly to the hiring into a IILess Than 12 Month Position" which does not exclude others from gaining this status as described in the two paragraphs below. Under the collective agreement, any new Less Than 12 Month Position must be posted. Consequently, existing employees of the College, including those in 12 month positions, could apply. If an existing employee in a 12 month position were successful, under the interpretation of the majority of the Board, the letter of understanding would not apply to him/her because he/she had not been l\hired" into the Less Than 12 Month Position. Similarly, an employee "hired" into a Less Than 12 Month Position who subsequently posts into a 12 month position is, presumably, no longer subject to the letter of understanding in his/her position. Both of these facts make clear that the operative point of time is when the employee goes into the position, not when he/she is hired by the College. The letter refers to Less Than 12 Month Positions, Not Less Than 12 Month Employees. It also refers to positions "being reduced to less than 12 months". The parties contemplated change. Nothing precludes the College from eliminating a 12 month position and establishing a 10 month position in its place. The incumbents are entitled to the rights of the Collective Agreement and they were extended to the employees affected here. Then all employees have the choice whether or not to apply for one of the new 10 month positions and they know, when they are "hired" into that position, that its work year is less than 12 months. It is interesting to note a sentence contained in the first letter, of May 5, 2008, to the employee, which reads "You are temporarily assigned to the position you currently hold until the committee determines if there are other options for you". It being understood the l\committee" referenced is the Employment Stability Committee. In the follow-up letter, of the same date, the second sentence in the first paragraph reads thus "However, the College and the Union through the Support Staff Stability Committee have determined that you possess an appropriate skill set to be provided with the following choices: You may elect to remain in your current position which has been re-created as a ten (10) month position ......". It would appear that the Union members of the Employment Stability Committee were in agreement with the College creating the ILess Than 12 Month Positions" for these individuals yet the Local Union filed a grievance on this matter. I would have dismissed the grievance(s). John Podmore