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HomeMy WebLinkAboutUnion 19-10-09 IN THE MATTER OF AN ARBITRATION UNDER THE COLLECTIVE AGREEMENT AND THE COLLEGES COLLECTIVE BARGAINING ACT BETWEEN: CONESTOGA COLLEGE (“the Employer”) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“the Union”) RE: GRIEVANCE OF CLASSIFICATION/JOB COMPETITION 2018-0237-0007 AWARD Arbitrator: Barry Stephens Union Apperances: Avril Dymond, OPSEU Grievance Officer Lana-Lee Hardacre, Local 237 President Mitko Mancevski, Local 237 Chief Steward Employer Appearances: Glenn Christie, Hicks Morley Hamilton Stewart Storie Shelly Schenk, Associate VP Human Resources Patricia Weigel Green, Associate VP Student Affairs Heard in Guelph, Ontario on June 24, 2019 AWARD [1] This grievance relates to the employer’s practice of posting and filling library- related jobs under the support staff collective agreement. The union asserts the positions should be identified as “Librarian positions”, which should be included in the academic bargaining unit. The raised a preliminary objection that the union should be estopped from insisting on the transfer of the positions back to the bargaining unit until the incumbents leave the positions. The union takes the position that estoppel is not applicable to these circumstances because the bargaining unit is defined by legislation not by the collective agreement. Employer Submissions [2] The employer stated that there was no dispute that the parties cannot bargain with respect to the scope clause, as the scope of the bargaining unit is defined by legislation. The employer argued, however, that estoppel should be applied with respect to this dispute because the union has made representations to the employer about the set of duties that will be covered by the support staff union. In other words, the estoppel does not involve the definition of the bargaining unit, which is set by legislation, but is narrowed to the specific duties that will constitute non-librarian work that might fall outside the collective agreement and that were featured in a total of four job postings. As a result, the employer argued that the dispute was not about the statutory minimums set out for the bargaining unit, but a set of duties, not addressed in the legislation, which have been treated by the parties as part of another bargaining unit. The employer 2 asserted it was not seeking to amend the statutory definition of the bargaining unit. The union had, in effect, declared by its actions that these sets of duties would not be considered librarian work and that, the employer argued, was a pure contractual issue. [3] In this instance, the employer argued, the practice had continued for a period of at least five years across four job postings, three of which had largely common job duties, although the fourth was somewhat different from the others. The employer acknowledged that, it is typical for estoppel to expire at the end of the life of the collective agreement under which the objecting party serves notice to return to the terms of the collective agreement. The employer argued the proper way to administer the estoppel in this case was to treat the matter as a series of four “little estoppels” and that each should be terminated when the current incumbent leaves the individual positions. [4] The employer stated that it was “nonsense” for the union to argue that there could not be representations at the local level, stating that the grievance was filed by the local union and addressed to Conestoga College only. The employer reiterated that it did not take the position that the Librarian classification should be removed from the bargaining unit. The grievance centers on the Class Definition for ‘Librarian’ found in the collective agreement, which reads as follows: CLASS DEFINITION LIBRARIAN This class covers the position of a Librarian which combines the theoretical knowledge of library science, information studies and subject disciplines with the practical application of educational technologies for the purposes of information 3 storage, retrieval and dissemination. Librarians are members of an academic community who share with faculty colleagues in the responsibility of imparting life- long learning skills to students and are responsible for the collection, dissemination, and organization of bibliographic and learning resources in the College. Librarians may assist with administrative functions or provide guidance to support staff assigned to their areas of responsibility. Librarians may be responsible for specific academic subject areas or a particular function within the organization. Areas may include collection and resource development, information provision and dissemination, information literacy instruction and staff training, cataloguing, library computer systems coordination, outreach, scholarly communications, and project planning. Academic librarians monitor current trends and services in the field and provide leadership in library and information services development. Other related duties may be assigned. Librarians are accountable to the College through designated management personnel and are assigned specific roles and tasks by management on hiring or re-assignment. Qualifications: Master of Library and Information Studies or equivalent degree from an American Library Association accredited institution. The employer asserted that the estoppel arises from this provision, which is part of the collective agreement and not the legislation. There is no definition of the classification in the statute, so the parties decided to negotiate such a definition and include it in the collective agreement. The union’s failure to object to the three previous postings amounted to an undertaking that the union agreed that the duties associated with the postings did not fit the description of the classification set out in the collective agreement, and thus, the employer argued, the estoppel does not impact the Act in any way. [5] The employer took issue with the union’s assertion that there was no detrimental reliance and that any additional cost could be offset by layoffs. The employer argued that, 4 even in these circumstances, the detrimental reliance would be the expectation and subsequent loss of better service to library users in the College. [6] The employer relied on the following cases: Canadian National Railway Company v. David M. Beatty et al. [1981] (Osler); EllisDon Corporation v. Ontario Metal Workers’ [2013] ONSC 5808; Ongwanada v. Ontario Public Service Employees’ Union, Local 433 [2001-2002] 12 P.E.R.1; Travellers Indemnity Company of Canada v. Andrew Clifford Maracle Jr., [1991] 2S.C.R. 50; E&N Railway Company v. International Brotherhood of Locomotive Engineers, Division 320 et al. [1999] BC LRB; Curtis Products Corporation v. I.W.A. Canada, Local 500, 110 L.A.C. (4th); Saint Mary’s University v. SMUFU, 263 L.A.C. (4th); Air Canada & Canadian Autoworkers, Local 2213, 40 L.A.C. (4th). Union submissions [7] The union submitted that the employees filling the disputed positions are performing tasks and require the qualifications of the Librarian position. The essence of the grievance is that the persons filling such positions are working in the wrong bargaining unit and under the wrong collective agreement. [8] The union expressed three objections to the employer’s assertion of estoppel, i.e. that estoppel cannot operate against this statutorily defined bargaining unit; that the circumstances did not match the criteria for estoppel; and that the motion is premature and should not be decided until all the evidence in this case has been heard. 5 [9] With respect to the statutory element, the union argued that the parties cannot contract out of the Act. The union described the legislative provision as “strong and compulsory” [10] The union further submitted that, even if the bargaining unit classifications were not determined by legislation, but were determined by the collective agreement, the employer had failed to show that the elements of estoppel were present. [11] The union stated that the grievance was about the issue of the proper bargaining unit for the disputed position, and argued that the employer’s argument relied on an assertion that the grievance itself was restricted to the collective agreement language. The union argued this this was incorrect, and that such an assumption could not be accepted unless it was proven with evidence, i.e, after hearing the matter on the merits. [12] The union relied on ss. 25 and 26 of the College Collective Bargaining Act, which define the bargaining unit for these parties in what the union asserts are mandatory terms, and stipulates a specific process for changing the bargaining unit: Application re bargaining units 25 From the day this Act received Royal Assent until a first regulation comes into force under section 27, the bargaining units for the purposes of this Act shall be the units described in Schedule 1. Bargaining Units 6 26(1) The Council and the bargaining agents of one or more bargaining units may apply to the Ontario Labour Relations Board proposing, (a) changes in the descriptions of bargaining units; (b) the establishment of bargaining units; (c) the elimination of bargaining units. 26(2) The applicants shall set out the details of the proposal in the application. 26(3) The Board shall not consider the application unless the applicants include the Council and the bargaining agent of, (a) every bargaining unit that would be eliminated if the proposal were implemented; and (b) every bargaining unit the description of which would be changed if the proposal were implemented. Schedule 1, which is referenced in s.25 of the Act, includes the classification of “Librarian.” The union asserted that the parties could not engage in an action, whether defined as estoppel or otherwise, that would have the effect of defeating the statutory scheme. [13] The union also asserted that the employer had not established a case for estoppel because the circumstances failed to meet several criteria required for estoppel. First, the legal relationship in this collective agreement, as reflected in the Act, is a central agreement between OPSEU and the College Employer Council. Thus, the union argued, the representation between the parties related to the estoppel would have had to have occurred between the parties to the collective agreement as defined by the Act, and there could be no representation between a local of the union and the local management of a single college. Regardless, the union argues, there could not have been any detrimental 7 reliance on the part of the employer because the employer does not have a right to change the bargaining unit, except jointly with the union as set out in the Act, and there is no issue that the employer should have been permitted the make changes to the bargaining unit at the bargaining table. The union argued there was no prejudice to the employer given that the grievance was filed before the position was filled and the employer had to option to repost the position in the correct bargaining unit but elected to proceed on the basis of the erroneous posting. The union also agreed that the net effect of a finding that all four positions should be in the academic unit will increase the employer’s overall costs, the employer has the option to reduce complement, if necessary, in order to adjust costs. [14] Finally, the union argued that the employer’s case for estoppel is premature in the sense that it lacks crucial evidence to demonstrate that the circumstances fall within the criteria set out in the cases, and therefore it would be appropriate to reserve on the issue and rule after the hearing of the grievance on the merits. [15] The union relied on the following authorities: Algonquin College (Noah), (unpublished, August 2018, O’Neil); St. Lawrence College, [2005] CarswellOnt 12081 (MacDowell); Sault College, [2003] CarswellOnt 6074 (Saltman); La Cité Collégiale (Waito), [1998] CarswellOnt 5548 (O’Neil); La Cité Collégiale (Caron) (1997), 48 C.L.A.S. 560 (M. Picher). 8 Conclusions and Reasons [16] The Act refers only to a classification labelled “Librarian”, and provides that it is included in the academic bargaining unit. The Act does not stipulate the qualifications or duties of the position, merely the job title. One might infer that the legislature was referring to the position of ‘Librarian’ as it existed at the time the relevant statutory provision was first enacted, but there is no indication in the Act that the parameters of the classification (or any other) were frozen in time. Thus, it would appear that the parties are free to define for themselves the details not set out in the statute, i.e. the qualifications and duties of the classification, so long as they do so in good faith, and the result does not defeat the purpose of the legislation. Indeed, the parties have included in the collective agreement a ‘class definition’ for Librarians. [17] The employer’s argument is simple. It does not take issue with the fact that the Act stipulates that librarians are included in the academic collective agreement. The employer asserts only that the union, through its actions, has represented that the positions in question do not fall within the class definition of Librarian found in the collective agreement. [18] The facts support the conclusion that there was communication sufficient to support estoppel in the union’s failure to challenge the employer’s postings. The postings were conducted openly in the workplace as is required by the collective agreement. 9 Given the fact that there were three postings prior to the posting that led to the grievance (two of which were almost identical to the posting that was grieved), it would appear that the union was aware, or ought reasonably to have been aware, of the contents and import of the postings. [19] I do not accept the union’s submission that there cannot be estoppel between these parties given that this is a centrally negotiated collective agreement and the true parties are OPSEU Central and the College Employer Council. Estoppel is an equitable remedy, and it is typically based on how the parties administer the collective agreement in the workplace. To say that estoppel cannot apply at the local level under a centrally negotiated collective agreement would be tantamount to saying that estoppel does not apply under centrally negotiated contracts, a legal outcome that is neither reasonable nor logical. [20] The employer asserts that it relied on the union’s failure to enforce the strict terms of the definition of the Librarian in the collective agreement in order to staff library services at the college at a certain level, and that moving the positions to the academic bargaining unit would mean higher cost or a reduction in service. Neither outcome could be considered ‘detrimental reliance’ once an estoppel has run its course, since higher cost or reduction of level of service would both be a consequence of the termination of the estoppel, not detrimental reliance. In other words, the employer’s argument confuses the ‘benefit’ created and protected by the estoppel with the outcome that inevitably comes 10 from the termination of that benefit and the restoration of the contractual obligations temporarily suspended by the estoppel. [21] Typically, in labour relations detrimental reliance is focused entirely on collective bargaining, where it should be. For this reason, the detrimental reliance is that the party missed out on the opportunity to bring the issue to the bargaining table. Typically, this results in a remedy that the ‘benefit’ is fixed in place until such time as the parties have a change to bargain. For this reason, estoppel in labour relations usually terminates with the expiry of the collective agreement under which notice is served to end the estoppel. [22] The employer relies on the outcome in the EllisDon decision to argue that, if estoppel exists, the employer cannot now be put back “into its previous position”, in the words of that decision, given the existence of the provision in the Act that librarians are to be included in the academic bargaining unit. This does not strike me as correct. The key fact in EllisDon was that the court found that the union had made a representation that caused the employer to miss an opportunity to have its operations included under a government regulation that protected other companies. The court viewed this as a one- time opportunity that the employer had missed due to its reliance on the union representation, and in such circumstances, the court reasoned, a permanent estoppel was appropriate as that was the only way to return the employer to the position it would have been in had the union not resiled from its representation. In EllisDon, in other words, the employer passed up on a one-time chance to achieve its goal through 11 government regulation because of the union representation. The court found this was a meaningful opportunity and that there was little doubt that EllisDon would have been covered by the regulation had it asked the government to do so. The court also found that there was little chance the legislature would respond to a request from EllisDon to amend the regulation once it had been passed. Those are not the facts in this case. The employer has not waived any opportunity as a result of the union representation with respect to the library position, except the normative opportunity of addressing the issue in collective bargaining. In this case, ‘restoring the parties to the position they were originally in’ means to restore the plain meaning of the collective agreement, nothing more. [23] The last issue is whether, in the circumstances of this case, there can be any detrimental reliance at all. The union argued that the employer had not lost an opportunity to bargain because, given the fact that the bargaining unit is statutorily defined, the employer would not have been able to achieve an outcome in collective bargaining that redefined the bargaining units stipulated by the Act. However, this case really turns on the fact that there is a definition of the class “Librarian” in the collective agreement. The Act does not define “Librarian”, and there does not appear to be any impediment to the parties defining the general duties and qualifications of a “Librarian” in the collective agreement. I have concluded that the parties have a fair bit of latitude to jointly define “Librarian” in the collective agreement in any reasonable way that suits their purposes. It is highly unlikely either the legislature or the courts would interfere in 12 any mutually agreeable definition the parties choose in good faith as a result of collective bargaining, so long as it does not, as I said before, defeat the purposes of the Act. This means not only that the parties have the right and ability to engage in meaningful negotiations about the definition of the Librarian position, they have already done so. [24] The union’s argument amounts to the assertion that a party who is claiming estoppel has not suffered detriment if they do not have the power to negotiate precisely the same arrangement to which the estoppel applies. It is not obvious why this should be the case. Estoppel is an equitable doctrine meant to protect the party to a contact from the consequences of the action or inaction of the other party. The detrimental reliance of lost opportunity can be the opportunity to negotiate precisely the same arrangement, but there is no reason why detrimental reliance cannot be the loss of the opportunity to negotiate with respect to how and when the estoppel is removed, or some other conditions that may not replicate the estoppel arrangement but which cushions the affected party from the worst effects of the reversion to strict contractual rights. [25] Given that this case is about the collective agreement language, it does not challenge the bargaining unit definitions stipulated in the legislation. The union representation to the employer was significant, in that no objection was taken until the employer had posted four positions in the support bargaining unit over a period of five years. The employer relied to its detriment on the union’s communication to continue to post positions in the support bargaining unit. The employer lost the opportunity to 13 negotiate about the issue in collective bargaining. In these circumstances, the normative remedy for estoppel should apply, and the union would be estopped from asserting strict rights at this college about the disputed positions so long as the current collective agreement remains in effect. [26] I remain seized with respect to any issues that may remain between the parties with respect to the merits of the grievance and with respect to the implementation of the decision set out above. ________________________ Barry Stephens, Arbitrator October 09, 2019