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HomeMy WebLinkAboutLoan 10-06-29 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC STAFF) (hereinafter the "Union") - and - COLLEGE COMPENSATION and APPOINTMENTS COUNCIL (FOR COLLEGES OF APPLIED ARTS and TECHNOLOGY) in the FORM of CONFEDERATION COLLEGE (hereinafter the "College") - and - GRIEVANCE OF JERRY LOAN OPSEU File No. 2009 0732 0001 (hereinafter the "Grievor") BOARD OF ARBITRATION: (hereinafter the "Board") Richard H. McLaren, Chairman Larry Robbins, Union Nominee Rod Halstead, College Nominee COUNSEL FOR COLLEGE: Wallace M. Kenny COUNSEL FOR THE UNION: Sheila Riddell HEARINGS in RELATION to this MATTER WERE HELD at THUNDER BAY, ONTARIO, on 13 APRIL and by CONFERENCE CALL on 14 JUNE 2010 PRELIMINARY AWARD Jerry Loan is a 63 year old individual who has been an airplane pilot virtually his entire working life. Since 1967, he has held an airline transport pilot license and holds the highest level of licensing for Canadian private and commercial aircraft. He has also held a Class 1 instructors rating for nearly 30 years and had extensive student pilot teaching experience. In 2008 Mr. Loan won a job competition held by the College. He was hired into a position as a flying instructor/professor in the Aviation Centre of Excellence of the College (hereinafter "ACE") commencing 1 January 2008. He worked in that position until his release without cause, in the submission of the College, per Article 27.14 B of the Collective Bargaining Agreement (the "CBA") on 16 September 2009, In the submission of the Union it is alleged that a memo dated 16 June 2008 was sent from a senior human resources manager to the President of the College recommending Mr. Loan to be approved for a full time faculty position. In January of 2009 it was announced that Mr. Loan would be in charge of float plane operations for the summer season. What followed this announcement in the submission of the Union was a deteriorating work environment for Mr. Loan which subsequently became poisoned. In July of 2009 there was a meeting between the Vice-President of Academic and Student Services at which the situation was discussed reluctantly by Mr. Loan. He was according to his counsel a reluctant participant in that discussion but was given assurances that his own employment with the College was safe because the College could not afford to lose someone with his experience. Based upon those assurances Mr. Loan spoke freely. Subsequently the Dean of ACE sought in writing the thoughts of Mr. Loan on what needed to be done to correct problems and he responded to the request. In reply to the opening of the Union, counsel for the College submitted that the College was aware that there were relationship issues between the Mr. Loan and other staff. However, 2 College counsel submitted that while they were not required to establish just cause the dismissal letter sets out some of the circumstances surrounding the job performance working on float planes in the summer of 2009. Much of the opening statement submission of the COllege focused on some apparent Transport Canada complaints which triggered the action of the College. See the dismissal letter set out below, On August 25th 2008 Mr. Loan's status under the CBA had changed from sessional to full time. On August 29th 2009 the employer had issued a SWF for the upcoming autumn term for the period 9 September to 16 December 2009 which was signed by the Grievor on 9 September 2009. In the submission of the Union at this point Mr. Loan believed he was on track to become a permanent faculty member and Chief Flying Instructor in four months. The written notice of the release dated 16 September 2009 reads in part as follows: Your performance has been unacceptable. In coming to our decision we relied on your failure to record defects when you recently took delivery of a float plane in Kenora, your failure to log a flight in direct contravention of Transport Canada regulation, flying without documentation in direct contravention of Transport Canada regulations and doing a "fly by" at Shebandowan at an unsafe height and with a student in the cockpit. These recent events indicate a disregard for safety and Transport Canada rules. At the time of his dismissal Mr. Loan was a full time probationary employee under the CBA with four months remaining in his two year probationary period. The letter of dismissal from the COllege (Exhibit #3) provided for the payment of the equivalent of 90 days notice pursuant to Article 27,02 E of the CBA. As a consequence of the action of the College Mr. Loan (hereinafter the f1Grievorfl) tiled a grievance on 1 October 2009 alleging "... I have been dismissed without just cause and that the college acted in bad faith': A hearing was held in Thunder Bay on 13 April 2010. 3 At the time of the hearing, the College brought a preliminary objection as to the arbitrability of the matter under the CBA which is the matter herein being determined. The submissions on the preliminary objection of the College were heard at the hearing in Thunder Bay on the 13 April 2010. On that day, there was insufficient time to hear the Union reply to the preliminary objection. Therefore, the submissions of the Union were deferred to a conference telephone hearing held on the 14 June 2010, The Board then held an executive session by conference call on the 1 yth of June. The parties were promised a decision by this Board on the preliminary objection with or without reasons not later than the 2nd of July in order that the merits could proceed on the scheduled days of 6 & 7 July should it be necessary and required to proceed to the merits. The Board was able to prepare these formal reasons for its ruling to the Parties by the stipulated date. Submissions of the parties (i) On behalf of the College The preliminary objection of the College is that the CBA does not call for a just cause termination on the facts as submitted in the grievance by the Union. It is the College's submission that it is entitled to release the Grievor in circumstances where he is a probationary employee. Therefore, the College submits that there is no legal basis upon which to review its decision under the CBA and the relevant jurisprudence even if there is an allegation of bad faith. The argument of the College is rooted in the provisions of the CBA. Art. 27.14 B stipulates that; "... the release of an employee during the probationary period shall not be the subject of a grievance under Article 32... "which is the Article otherwise applicable to define and stipulate the grievance procedure as provided in Art. 32.03 D and 32.05. Therefore, the parties have specifically contemplated the process by which an employee who is a probationary is to be released. The management rights clause reinforces this interpretation 4 by providing that discharge or dismissal will be in accordance with the CBA which in this case means Art 32.05 wherein it is satiated that: fI,.. the dismissal of an employee during the probationary period shall not be the subject of a grievance... ': Therefore, probationary employees have no rights or any standard by which to be released and this Board of arbitration has no jurisdiction to alter or amend the CBA as provided in Art. 32.03 D. Nor can this Board deal with any matter that is not the proper subject of a grievance under the CBA It is submitted by the College that the CBA is the commencement point for the proper adjudication of the matter as discussed in the Markham Hydro Electric Commission case, supra, by Arbitrator Knopf at paragraph 12. That arbitration award found that there is no f1broad duty of good faith imposed upon an employer ... even where the probationary employee has no access to the arbitral process". However, it was submitted that the thrust of the more recent jurisprudence ought to cause one to realize that the relevant Colleges' arbitral jurisprudence on a grievance of a probationary employee under the Ontario colleges CBA should be considered as having come full circle back to the contents of the collective agreement without the imposition of any term by the arbitrators. The original position on probationary employee grievances was established in 1976 in a Seneca College decision, supra, of Arbitrator Weatherill denying access to the grievance procedure. It was the submission of the College that when the history of the jurisprudence is tracked to the present the jurisprudence has returned to that posjtion as indicted by the 2001 decision of Arbitrator Whitaker in Ontario (Alcohol and Gaming Commission), supra. A probationary employee who is released has only the protection of the CBA as specified by reference in it. It was submitted that the early case law confirmed the lack of arbitrability of the probationary employee grievance. Then the Ontario Hydro case developed a two stage analysis which many other arbitration cases adopted and was applied in the community college setting. Then confusion crept in according to the submission of Mr. Kenny with the decision of Arbitrator Swan in the Seneca College case, supra. The case 5 law at that point injected a good faith requirement into the analysis when releasing a probationary employee relying upon non college jurisprudence. Subsequently these jurisprudential principles began to find their way back to the contents of the CBA and then in Arbitrator Whittaker's view, as he then was, go back to the first principles of the early case law in the Ontario (Gaming) case and determine that the CBA is foundational to the analysis. The thrust of the submission on behalf of the College is to the effect that the law is currently in the state of affairs that it was just prior to all the intervening jurisprudence of the past several decades. The CBA applies and thus precludes the grievance which means that the matter is not arbitrable and therefore, this Board is without jurisdiction to proceed and hear the merits. In support of its position the College makes reference to the following arbitral jurisprudence. Re: The Ontario Council of Regents of Colleges of Applied Arts and Technology and The Civil Service Association of Ontario (Inc.), (1976), Weatherill, Hayes and Wright; The Ontario Council of Regents for Colleges of Applied Arts & Technology (Fanshawe College) and OPSEU (1981), Rayner, McGivney and Cochrane; Durham College of Applied Arts and Technology and OPSEU (1982) Weatherill, Traves and Shuttleworth; Ontario Hydro v. Ontario Hydro Employee's Union, Local 1000 (1983) 41 O.R. (2d) 669 (Ont. C.A.); T oronto-Hydro-Electric System and Canadian Union of Public Employees, Local 1 (1980) 29 O.R, (2d); Seneca College and OPSEU, Grievance of Patricia Hacker(1986) Swan, Koski and Robbins; Centennial College and OPSEU, Grievance of D. Goodhue (1988) Samuels, Gallivan and Robbins; Sf. Lawrence College and OPSEU (1987) Brent, Cochrane and Gallivan quashed on judicial review (1989) 41 L.A.C. (4th) 128; OPSEU and George Brown College, Grievance of Trevor Ellis (1990) Mitchnick, Herbert and Guptill; Loyalist College and OP SEU, Grievance of Nick Nowitski (1994) Bendel, Lyons and Metcalafe; St. Clair College and OPSEU, Grievance of F. 6 Chesterton (1996) Swan, Metcalfe and McManus; Seneca College and OPSEU, Grievance of Michael Whealen (1998) Thorne, Cowell and Robbins; Centennial College of Applied Arts and Technology and OPSEU, Local 558, Grievance of Christopher Robertson (2003) Knopf, Riddell and Murray; Algonquin College and OPSEU, Local 415, Grievance of B. Sumitro (2006) Knopf, Pearlman and Munt-Madill; Loyalist College of Applied Arts and Technology v. OPSEU (2003) 63 o.R. (3d) 641 (G.A.); Consolidated-Bathurst Packaging Ltd. (Sf. Thomas Division) and International Woodworkers of America, Local 2-337 (1981) 1 L.A,C. (3d) 10 (Adams); Toronto (Metropolitan) v. Canadian Union of Public Employees (1981) Steele, Saunders and Callaghan JJ; Brampton Hydro Electric Commission and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CA W- Canada), Local 1285 et al (1993) O'Driscoll, White and Moldaver; Markham Hydro Electric Commission and I.B.E. W., Local 636 (1992 24 L.A,C, (4th) 412 (Knopf); Perry Sound (District) Welfare Administration Board and OPSEU, Local 324, Grievance of Joanne O'Brien) (1999) Knopf, O'Byrne and Madill; the Supreme Court of Canada in District of Parry Sound Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 [2003] SCC 42 dismissing an appeal from the Ontario Court of Appeal reported at (2001),54 O,R. (3d) 321 setting aside a decision of the Divisional Court reported at (2000), 131 O,A.C. 122. Sudbury Downs and Ontario Joint Council of the Retail, Wholesale and Department Store Union, District Council of the United Food and Commercial Workers International Union (2002) 105 L.A.C. (4th) 438 (Nairn); Gerdau Ameristeel Whitby Plant v. United Steelworkers of America. Local 6571 , Grievance of Woodcock (2005) Levinson; Greater Essex County District School Board and Ontario Secondary School Teachers' Federation, District 9 [2005] O.J. No. 6401 Ontario Divisional Court (Aston, Greer and Swinton); Ontario (Alcohol and Gaming Commission) and Ontario Public Service Employees Union, Grievance of Harris (2001) Whitaker; Loyalist College and Ontario Public Service Employees Union (1990) Brent, Gallivan and Nabi; St. Lawrence College and OPSEU, Grievance of Abel (1989) Swan, Gallivan and Bern; Ontario Council of Regents for Colleges of Applied Arts and Technology in the form of Loyalist College and 0 PSEU, Grievance of Mark Sorge (2003) McLaren, Murray and Gallivan; . 7 (ii) On behalf of the Union The Union was unable to put its submissions to the parties at the hearing in April 2010. Thus, the oral hearing procedure by conference call was set up for the 14th day of June. In those submissions the Union argued as follows. They submit that if there had been performance concerns in the summer of 2009 as referenced in the release letter then there would not have been the SWF, nor the promise that the Grievor was a candidate for a full time position and also chief instructor. It is submitted that Art. 27.02 D requires that probationary employee's progress be provided in four monthly reviews of continuous employment and a copy given to the employee. This had never been done in this case. The giving of feedback and how to improve are essential to an employee trying to improve in order to establish their suitability for full time non probationary employment. This benefit was lost in this case yet the reasons for release speak about inadequate job performance in circumstance where there has been no performance appraisal as contemplated by Art. 31.01 The Union submits that the decision of the College was motivated by bad faith on the part of the College. As such the release is reviewable by this Arbitration Board as being within the jurisprudential exception established by the case of Loyalist College. Furthermore, at age 63 the Grievor is unable to find work other than driving a school bus having moved to Thunder Bay from the Metropolitan Toronto area following his hiring by the College, Despite his age the Grievor had intended to work until age 70 and thus brings a claim for damages for his wrongful termination. In support of its position the Union makes reference to the following arbitral jurisprudence. Re: Municipality of Metropolitan Toronto and Canadian Union of Public Employees, Local 79 (1984) 18 L.A,C. (3d) 52 (O'Shea)' Alcan Wire and Cable and U.S. W.A (1992) 26 L.A.C. (4Ih) 93 (Tacon); Brampton Hydro Electric Commission and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CA W - Canada), Local 1285 et al. (1993) also cited by the College (O'DriscolI, White 8 and Moldaver); DuPont Canada Inc. and C.E.P., Local28~O (1996), Roach; Algonquin College and Ontario Public Service Employees' Union (1986), 22 L,AC, (3d) 129 (Brent); Sf. Lawrence College and O.P.S.E.U (1987), 32 L.AC, (3d) 322 (Brent, Cochrane and Gallivan); judicial review by the Divisional Court at [1989J O,J. No. 2955 (Campbell, Reid and O'Brien JJ); Seneca College v. Ontario Public Service Employees Union, Grievance of Whealen (1998); Thorne, Cowell and Robbins; Toronto Transit Commission and Amalgamated Transit Union, Local 113 (1985) 21 L.AC. (3d) 346 (Saltman, Herbert and Ronson); Toronto Transit Commission v. Amalgamated Transit Union, Local 113, Grievance of Gary Spracklin (1999) 82 L.AC. (4th) 335, (Harris); Teranet Land Information Services Inc. and o.P.S.E.U (1994), Mitchnick, Stephens and Park; Westfair Foods Lid v. United Food and Commercial Workers International Union, Local No. 777, Grievance of Wendy Leaf Hallock (1990), 15 L.AC. (4th) 199 (Vickers, Clifford and Smith). The relevant provisions of the CBA are as follows: Article 6, MANAGEMENT FUNCTIONS 6.01 (ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recal and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement Article 27, JOB SECURITY 27.02 D During the probationary period an employee will be informed in writing of the employee's progress at intervals of four months continuous employment or four full months of accumulated non-continuous employment and a copy given to the employee. 27.02 E A probationary employee may be released during the first five months of continuous or non-continuous accumulated employment following the commencement date of the employee's employment upon at least 30 calendar days' written notice and during the remainder of the employee's probationary period upon at least 90 calendar days' written notice, If requested by the employee, the reason for such release will be given in 9 writing, Discharge 27.14 8 It being understood that the release of an employee during the probationary period shall not be the subject of a grievance under Article 32, Grievance Procedures, but may be subject to the internal complaint process as referred to in 7.02 (iii), an employee who has completed the probationary period and is discharged for cause may lodge a grievance in the manner and to the extent provided in the Grievance Procedures, or in the Expedited Arbitration Process, Article 32, GRIEVANCE PROCEDURES Complaints 32.03 D The arbitration board shall not be authorized to alter, modify or mend any part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper mater for grievance under this Agreement. Dismissal 32,05 It being understood that the dismissal of an employee during the probationary period shall not be the subject of a grievance, an employee who has completed the probationary period may lodge a grievance in the manner set out in 32,06 and 32.07. D EelSION In the 2003 judgment of the Ontario Court of Appeal in Loyalist College, supra, the court provided interpretation of the provisions of the predecessor to the CBA under consideration in this case. In so doing, they held that the provisions of the Colleges Collective Bargaining Act in s. 46(1) provided for the final and binding settlement by arbitration of all differences between the parties to the CBA arising from its interpretation, application, administration or alleged contravention including determining whether a matter is arbitrable. The Court noted that Art. 32.06, identical in wording to Art. 32.05 of the CBA under consideration 10 herein, on its face precluded a probationary employee from grieving their dismissal. However, the Court found in paragraph 56 of the judgment that the arbitration board whose decision was the subject of judicial review and then the appeal to the Court of Appeal, while not expressly dealing with their jurisdiction, did so implicitly and were correct to do so. They went on in that judgment to say: The question of the Board's jurisdiction to hear the grievance brings into play two competing principles. The first principle is that generally, arbitrators cannot review the merits of an employers decision to dismiss a probationary employee. The second principle, a qualification on the first, is that the arbitrators may be entitled to review an employer's decision to dismiss a probationary employee if the decision is made in bad fa;th or is based on an illegal or invalid consideration. Both principles are reflected in this collective agreement and the governing statute, the Colleges Collective Bargaining Act. The application of the second principle clothed the Board with jurisdiction to hear Ms. Bergman's grievance because her d;smissal was based on an invalid consideration, namely, the condition of her continuing employment. The court went on to explain that ordinarily probationary employees cannot expect the protection of the just cause provisions enjoyed by those employees who have completed their probationary period (See para. #58) Thus, just cause can not be a f1difference" arising from the application or contravention of the agreement and therefore, not arbitrable. To this extent the grievance herein is not well drafted in its reference to just cause. However, the grievance also refers to action on the part of the employer in "bad faith". It is that aspect of the grievance which gives rise to the following analysis. The Court of Appeal in Loyalist went on to point out that the CBA did give other limited rights apart from just cause for dismissal as is argued here by the Union in respect of progress reports as found in Art. 27.02 D. The Court then stated at paragraph 60 relying upon their earlier decision in Ontario Hydro, supra, that "an alleged breach of any of these rights [being the limited rights other than just cause] may give rise to a difference in the interpretation, application or administration of the collective agreement, and failing resolution, would then be arbitrable". The Court of Appeal then goes on in paragraph 61 to state that there are various rights 11 which are arbitrable. The Court indicates that the right not to be dismissed in bad faith is an implied term of every collective agreement and extends to all employees, including probationary ones. In support of that proposition the Ontario Divisional court decision in Brampton Hydro Electric Commission, supra and Metro Toronto (Municipality), supra are cited. Arbitrator Knopf in 1992 in her arbitration award in the Markham Hydro Electric Commission, case, supra, reviews the contents of the collective agreement before her and notes that it does not contain a broad duty of "good faith or reasonableness imposed upon the employer" [see paragraph 23]. She then follows her analysis in Parry Sound (District) Welfare Administration Board, supra, that an employee under that collective agreement had no right to grieve on any standard but could do so on a combination of the Ontario Human Rights Code and the collective agreement. That issue in the Parry Sound case ultimately went to the Supreme Court of Canada and the court did not comment upon the issue raised by the Court of Appeal in Loyalist College although the reasons of the Supreme Court were released six months later in 2003 after the Loyalist decision. If the position of the College is to be upheld it has to be on the case of Greater Essex County District School Board, supra. It is the only judicial authority submitted to this Board that comments upon the Loyalist College, case at paragraph 25. That paragraph quotes paragraph 61 of the Court of Appeal decision in Loyalist referred to above and relied upon by this Board. The Divisional Court goes on to discuss the implied duty not to act in bad faith in the Loyalist case at paragraph 32. The case is distinguished on the basis that the implied duty on the employer not to dismiss in bad faith referred to in Loyalist f1must be read in light of the cases cited for this proposition". The Divisional Court goes on to site that the cases implied such a duty in light of the language in the collective agreement as a whole, The Divisional Court then goes on to draw a distinction on the basis that an implied duty not to act in bad faith is not the same as one in the arbitration decision being reviewed by it of a duty to act in good faith, Therefore, the Divisional Court does not overrule the 12 Court of Appeal something it could not do in any event but distinguishes the case so as not to apply it and in particular draws a distinction between an implied duty of bad faith and one of good faith. The problem for this Arbitration Board is that the law for the interpretation of the Community Colleges collective agreement is established by the Ontario Court of Appeal in the Loyalist, case, This Board of Arbitration cannot avoid the binding effect of the interpretation provided for by the Court of Appeal. We do not have the luxury of distinguishing the case on the facts or the law when the court is interpreting the identical provision in the CBA we are required to interpret. The Board is bound to apply the law as the Court of Appeal has set it out unless and until such time as they decide to change the law. Therefore, we find there is an implied duty not to act in bad faith in the context of the CBA in Art. 27.02 E. The implicit standard to not act in bad faith while not directly arising in the Loyalist College arbitration case is unequivocally upheld by the Ontario Court of Appeal. See paragraph 63 where it is said that "... just as the College could not dismiss a probationary employee in bad faith, neither could it dismiss a probationary employee by relying on a condition of employment that was illegal or conflicted with the collective agreement". Subsequent jurisprudence by the Ontario Court of Appeal has not arisen that would alter this statement of the law in respect of the Ontario community college system. From the opening submissions to this Board by Union counsel, we are under the impression that there may well be some evidence of bad faith in the release decision of the College. At this stage in these proceedings we have been asked to determine our jurisdiction on a legal principle of whether the matter is arbitrable, We conclude it is arbitrable on matters of bad faith, Therefore, we must hear the evidence to determine if there are grounds of bad faith. We have not at this point heard any evidence. For this reason, we order that the matter proceed to calling evidence to establish whether there has been bad faith on the part of the College in its decision to release the Grievor. That may 13 require getting into the merits of the dispute and may very well mean that it would be better to hear the entire evidence make the preliminary ruling and if required deal with the balance of the merits depending on that ruling. The Board will leave it to counsel to determine how to proceed; or) it will make a ruling following submission on that topic at the next scheduled hearing day. The College in its submissions on the Loyalist case, supra, suggests the case is done without analysis of the fundamental construct and did not do the analytical work required of it. This Board has carefully quoted from that decision to illustrate that due regard was paid to the contents of the collective agreement and that the contents of which are not different than the current CBA. This Board does not find it satisfactory to distinguish the Court of Appeal case on the basis that the decision was done without fundamental construct. We do not find that the case has been overturned or disavowed by the Court of Appeal itself or commented upon as not being the law in any subsequent judicial decisions with respect to the CBA the Community Colleges in Ontario. Indeed) the Board notes that in July of 2006 Arbitrator Knopf in an arbitration case involving Algonquin College, supra cites the case and accepts that it is good law in respect of the colleges in the province. Thus, at the arbitration level in so far as the community college's jurisprudence and its CBA is concerned the Loyalist case has been applied without distinguishing it or suggesting that it is not the current law. Therefore, this Board is required to apply the law to the CBA as found by the Court of Appeal. We have so done in making our order to proceed to hear any evidence that may be available on bad faith. The Board extends its thanks to counsel for a full and complete submission on the principles of law which ought to be applied in this matter. It can be ascertained from the extensive list of cases relied upon by the parties that the matter was given a full and complete argument. Our thanks to both counsel for a job well done. DATED at LONDON, ONTARIO THIS 29th DAY of JUNE, 2010. 14 ~!I)JJ~ Richard H. McLaren, C.Arb. Chairman I concur/discent "signed" Larry Robbins} Union Nominee I conour/dissent "siqned" Rod Halstead, College Nominee Written Dissent to Follow 15 Preliminary Objection raised by The Confederation College of Applied Arts and Technology in the Grievance filed by OPSEU of Brydon Loan. Unfortunately, I am not able to agree with the majority decision on this matter so must respectfully d isse nt, The language in the collective agreement is very clear and strong and supports that a probationary employee can be released. It not only states that a probationary employee can be released it also states that the release will not be subject to arbitration. It further gives a formula of the severance rules that must be followed accordingly. CBA provisions 27.02 E,32.05 Under Article 32,03 an arbitration board is also not authorized to alter, modify or amend any part ofthe terms of the Agreement nor make any decision inconsistent therewith, The parties to this collective agreement are two very mature and capable bargaining partners with a lengthy history of negotiations. They both understand and fully recognize the implications of the ordinary meaning ofthe wording they have agreed to and no doubt take considerable time coming up to agreement. In the instant case, the unions acknowledges the Colleges right to terminate a probationary employee in accordance with the CBA but maintain this right is negated where "bad faith" is demonstrated by the employer. Unfortunately the threshold of what constitutes "bad faith" is at the level of "allegation", If the union makes the allegation, they also maintain the board is compelled to hear the evidence. Accordingly, I see no practical value in the existing language if this is the intent. I do not think that this is what the Colleges intended when the language was negotiated, so therefore must dissent from this ruling. R, G, Halstead College Nominee July 2, 2010