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HomeMy WebLinkAboutUnion 09-10-30 Oc+- 30 2009 IN THE MA ITER OF AN ARBITRA UON BETWEEN: F ANSHA WE COLLEGE (THE COLLEGE) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF A UNION POLICY GRIEVANCE (NURSING DIVISION); OPSEU FILE NO. 511118 BOARD OF ARBITRATION: H.D. BROWN, CHAIR JOHN PODMORE. COLLEGE NOMINEE RON DA VIDSON. UNION NOMINEE APPE~CES FOR THE COLLEGE: ROBERT J.ATKINSON -COUNSEL AND OTHERS APPEARANCES FOR THE UNION: TIM HANNIGAN - COUNSEL AND OTHERS A FURTHER HEARING IN THIS MATTER WAS HELD AT LONDON ON APRIL 16.2009 INTERIM AWARD 2 At this continuation of the hearing, preliminary objections were raised by the College with regard to two additional grievances submitted by the Union} the College position is that the grievances are improper Union grievances with which this Board does not have jurisdiction to determine. Specific reference was made to Article 32.09, the relevant part of which is: .. The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by- passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees." The Board therefore received the submissions of Counsel for the parties on the issues arising on both grievances and reserved its decision and did not proceed further at this hearing. The Board has considered all of the submissions in the preparation of this award. A grievance dated January 21,2008 was filed by the Union as a Policy Grievance, (Local 110 Ref. #U2008-01) in the following terms: 3 "Local 110 grieves that the College violated Articles 1. 2, 3.6.02,11,14,15,17,18. 19,27 and appendix Vet al of the Collective agreement when they failed to hire Elly Kulbaba and Colleen Collier as regular full-time bargaining unit employees or convert their sessional positions to regular full-time teaching positions after meeting the criteria set out in the Collective Agreement that requires them to do so. As remedy Local 110 seeks that the College immediately post and fill two full-time professor positions in the School of Nursing. We also seek a declaration that the College should have posted and filled these positions at the point in time when the criteria ofthe Collective Agreement had been met. We seek as wen all Union dues owing with interest. " The response of the College dated June 16,2008 is in part as follows: "The subject matter of this grievance is something which the individualst Kelly Kulbaba and Colleen Collier could be entitled to grieve. They have not filed grievances. Accordingly, this is not an appropriate policy grievance as per Article 32.09 of the collective agreement...Therefore, the policy grievance is denied," On February 28, 2008, the Union filed a Poticy Grievance relating to a failure to hire Lucy Vermeulen as a full-time bargaining unit employee which relates in effect to the individual grievance filed by Ms. Vermeulen dated November 30, 2007 on the same issue. The College on June 16,2008 objected to this grievance of the Union as it had been grieved by an individual employee who was entitled to grieve and to which the College responded at Step 2 that the grievance was denied. 4 On March 25,2008, the Union filed a policy grievance in the following terms: "Local 110 grieves that the College violated Article 2, 10 et al of the Collective Agreement when they failed to give preference to the designation of full-time positions as regular teaching positions rather than non-full-time positions in the School of Nursing. As remedy. we seek a declaration that the College failed to give preference to the designation of full-time teaching positions as required by Arti~le 2 of the Collective Agreement. We also seek that the College immediately post and fill 17 positions in the School of Nursing. We seek as well all union dues owing, with interest." It was agreed by Counsel at this hearing that particulars of this grievance will be provided by Counsel to Mr. Atkinson and is in effect is similar to the grievance ofthe Union dealt with in the Board's previous Interim Award dated January 10, 2008. The Board found that the hearing could proceed on the merits of that grievance relating to the issue of the designation of full-time regular teaching positions rather than non-full-time positions of the Nursing division but could not be expanded under Appendix V to deal with individual remedies which "are quite separate from the. Union's remedial claim of a declaration of a violation of Article 2 of the College relating to the designation of nursing positions". A grievance dated July 30,2008 was filed by Janice Macintosh (12008-005) alleging that the College "failed to hire me as a regular full-time bargaining unit 5 employee or convert my sessional position after meeting the criteria set out in the collective agreement", It is the submission for the College that while it agrees that the individuals who have been named and filed grievances are employees ofthe College and therefore have the right to grieve but on the merits they have not met the criteria for a full-time position. The College does not take the position that the Board is denied jurisdiction because of timeliness but if the remedy sought by the individuals should be allowed, they are only entitled to 20 days of remedy prior to the date ofthe grievance and the same condition would apply as to remedy with regard to the two policy grievances of the Union. It was submitted that the individual grievance ofLuey Vermeulen and the Policy Grievance of the Union dated February 28, 2008 involve the same issue as to the status or the employee which is an individual matter and not a proper Union policy grievance pursuant to Article 32.09. Reference in this matter was made to an award chaired by Gail Brent dated April 25, 1988 in Re Sir Sandford Flemin2 College and OPSEU and Re Fanshawe College and OPSEU (Brent, February 22, 1989) where the individual employee did grieve and therefore a Union Policy Grievance under Article 11.01 (now 32.09) restricts that right as not including: "any 'matter' upon which an employee would be personally entitled to grieve. The 'matter' on which an individual is entitled to grieve is one where shelhe is alleging that the collective agreement has been violated in a manner which personally affects herlhis situation and 6 where the individual concerned has a status of employee and can pursue a grievance. .. In the situation before us both the Union and Robson grievances are complaining about the same circumstances, which they allege gave rise to the same violation of the collective agreement. They are both, therefore, dealing with the same 'matter'." It was further submitted that the policy grievance dated January 21, 2008 is worded similarly to the other policy grievance in which the Union must show that the second part of Article 32.09 relating to "an unreasonable standard" was met. The Union is held to a high onus to meet the three conditions of Article 32.09. With reference to the Sir Sandford Flemin2 award, the Board stated at p, 8: "There is agreement between the parties that in order to bring a grievance under Article 11.10 in this situation, the union had the onus of showing that Ms. Stocker did not grievance an unreasonable standard that is patently in violation of this agreement and that adversely affects the rights of person in the bargaining urn t. . .In our view, in order for a violation of the collective agreement to be called 'patent', it must be evident or plain on its face that there has been a violation of the agreement." Reference was made to Re Loyalist College and OPSEU (O'Neil, May 29,2001). It was also argued that under Article 32.09, the Union must establish that there was an adverse affect on the rights of employees with specific reference to the award between George Brown College and OPSEU (Devlin, June 8, 1994) in which the Board stated: 7 "Instead, we fine that this criterion is intended to ensure that the regular procedure for personal and group grievances is bypassed only in respect of matters which impact broadly on members of the bargaining unit". In the present matter, the only persons affected by the alleged violation of the collective agreement are individuals and their status. Re Fanshawe College and OPSEU (Knopf, December 10, 2007), It is the submission for the Union that its policy grievance dated January 21. 2008 relates to the work of the two named individuals who did not grieve and further that the individual grievance of Vermeulen is different in that the Union makes a claim for the work while the individual claims a roll-over to the position ofas a full-time professor. The Union has a continuing interest in having work performed by the bargaining unit members and can bargain those tenus and conditions relating to that employment which is clearly its interest in these grievances with reference to Articles 2.03(a) and 2.03( c). It is submitted that the Union's grievances fall within the criteria of Article 32.09 and the Union has the right to grieve a difference directly with the College as to the application or administration ofthe agreement as set out in the first sentence. The matter is a Union issue that the position existed as full-time claimed by Ms. Vermeulen and is work of the bargaining unit. When the conditions ofthe work performed by the employee in excess of the 12-month condition applies, the Employer is thereby assigning work outside of the bargaining unit. That is inherently a Union issue where an individual 8 Grievor works on a contract basis while the Union asserts it is a bargaining unit position. Both the Venneulen and Kulbaba Collier are filed by the Union because they deal only with the interpretation of the bargaining unit. The Union asserts in any event the three criteria for a Union grievance under Article 32.09 have been met. These individuals did not grieve an unreasonable standard to fill and continue the work involved on a full-time basis. Further, it is submitted that there is no discretion by the College as to the application of work appointments for employees for more than 12 months in a 24-month period pursuant to Appendix V. There is an automatic and therefore patent violation ofthe collective agreement contrary to the mandatory definition of full-time employment which has an adverse effect it was alleged, on the rights of these employees. The Union is dealing with the integrity of the bargaining unit so that to keep these positions out of that bargaining unit adversely affects those employees as to their available work and their conditions of seniority including bumping rights as well as loss of union dues. Having considered the submissions of Counsel and the circumstances of the grievances at issue in this preliminary matter, the Board finds that as Lucy Vermeulen filed an individual grievance dated November 30,2007 concerning her status. that action precludes under the mandatory terms of the first sentence of Article 32.09 the policy grievance of the Union dated February 28,2008 which deals with the same matter in dispute. In the Fanshawe College award (Brent), it is stated: "the fact that the Union is 9 seeking this remedy does not change the character of the matter referred to in Article 1 L 10". The same conclusion applies in these circumstances where the matter in the personal grievance is the same allegation of a breach of the collective agreement. The remedial reference in the Union's grievance does not alter the matter in dispute which falls within the long-standing application of the first sentence of Article 32.09 as set out in the referenced awards above. We find therefore that the Union Policy Grievance dated February 28, 2008 is not a proper Union grievance and we do not have jurisdiction in that regard. We find that the Policy Grievance dated January 21, 2008 filed by the Union in which there is direct reference to two sessional employees who could have but did not file individual grievances, is not a proper Union grievance Wider the terms of Article 32.09. Clearly, the individual employees ofreferen~e were personally entitled to grieve, a violation of the collective agreement which is the same issue as set out in the Policy Grievance. That grievance is then barred by the application of the second sentence of Article 32.09 where an employee could have filed an individual grievance but did not, does not leave open pursuant to this Article, the right of the Union to file a Policy Grievance on that issue of the employee unless it can satisfy the three conditions set out in this Article each of which is significant and must separately be met in order that the Union can bypass the individual grievance procedure. . 10 In this matter, we find that the Union failed to satisfy the third condition as what is alleged is the failure to hire two individuals as full~time bargaining unit employees which is not a matter which affects the rights of employees but is only referable to the individual involved in their claim that the College failed to hire them as full-time employees. Arbitrator Devlin expressed this criteria in Article 32.09 as being "intended to ensure that the regular procedure for personal and group grievances is bypassed only in respect of matters which impact broadly on members of the bargaining Wlit" . We agree with and apply that finding in the circumstances of this policy grievance ofthe Union and find that the grievance is not a proper Union Policy Grievance for which the Board has jurisdiction. The Union's policy grievance dated March 2~, 2008 is similar to its initial grievance which was the subject ofthe Board's preliminary award dated January 11, 2008 and which applies to continue the hearing with regard to that grievance. Having regard to the foregoing, it is clear that the intent of the parties in the context of the collective agreement is that apart from the application of the exceptions set out in Article 32.09, claims of full-time status of employees are to be administered through the regular grievance procedure. niat is the appropriate method for the claims of 11 those employees named in the Union's policy grievances which do not meet the conditions of Article 32.09 for a procedural exception. DATED AT OAKVILLE TillS 30TH DAY OF OCTOBER. 2009. \ /\/\.1\ A~ .1 \j'_ v H.D. BROWN. CHAIR ~ \ k.1 II . e-iv-.-r HI' - IV'- 'Ii. C",- kid JOHN PODMORE. COLLEGE NOMINEE ~ n ~ . ~ ~1Y' ~v-.. RON DAVIDSON, UNION NOMINEE <:>ee (-L-iic~~ vr:~,L4wt~ ADDENDUM With reluctance, I must agree with this Interim Award. My concerns are with the language of the relevant part of Article 32.09, which states: "The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personalty entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union established that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees." I believe one of the most important functions of a Union Officer, is to police the application of the Collective Agreement on behalf of its members and to protect the integrity of the Bargaining Unit. The ability to do this is severely limited by the aforementioned language of Article 32.09. In the first issue before this Board, the interpretation by many Arbitration Boards, that if the "matter" that is grieved by the Union is the same "matter" as that grieved by an individual employee, then the Union Policy grievance is not a proper Union grievance. With regard to the second issue, the two employees, Kulbaba and Collier, did not file individual grievances. Given the fact, that they are temporary employees, that probably did not want to rock the boat by complaining through the formal Arbitration procedure, that their Employer should have converted them to full time employees, is certainly no surprise that they did not grieve, especially in light of to-days economic climate. This however, is not enough to negate the affect of Article 32.09. For many years now, case law consistently shows, that the application and interpretation of Article 32.09 severely restricts the rights of Union Policy grievances. Unfortunately, and just as consistently, the language in Article 32.09 has remained the same. Ron Davidson.