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HomeMy WebLinkAboutUnion 12-04-13 1 IN THE MATTER OF AN ARBITRATION ~ BETWEEN ~ ST. LAWRENCE COLLEGE (“EMPLOYER or COLLEGE”) ~ AND ~ ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 417 (“UNION”) AND IN THE MATTER OF A UNION POLICY GRIEVANCE Board of Arbitration Deborah Leighton, Chair Ann Burke, College Nominee Ed Seymour, Union Nominee APPEARANCES For the Employer Colin J. Youngman, Counsel Jim Gibson, Manager, Human Resources Debbie McKay, Director, Academic Operations For the Union Bijon Roy, Counsel Mary Ann White, Chief Steward Graeme Aubert, President A hearing into this matter proceeded on November 23, 2011 and submissions were received on December 2 and 6, 2011 2 AWARD On December 1, 2010, the union grieved “that the college is violating Article(s) 1, 6, 14.03 A3 specifically, but not exclusively, by not providing one or two steps on the salary grid for partial load coordinators.” With respect to remedy, the union seeks a declaration of a violation of the collective agreement, a cease and desist order and that appropriate compensation be established for partial load coordinators. At the outset of the hearing into this matter, the employer made a motion to the board that we did not have the jurisdiction to hear the case because the grievance is not a proper union grievance. The parties agreed that the preliminary motion should go forward before any hearing into the merits of the case. On November 22, 2011, in response to the college’s request for particulars, the union provided the following: 1. Article 26 of the Collective Agreement contains provisions exclusively related to partial load (“PL”) employees. However, Article 26 is not inclusive of all rights of PL employees under the collective agreement. 2. Article 26.02A specifies compensation for PL employees only in respect of the performance of teaching contract hours. 3. The college assigns coordinator duties to PL employees from time to time. 4. At a UCC meeting on or around December 1, 2010, the college advised that coordinating work performed by PL employees was compensated at the same rate as the teaching contract hours performed by those employees. In this regard, we ask that the college disclose to the union copies of any written policies articulating the position communicated to the union in the December 1, 2010 meeting. 3 5. The union maintains that such policy or practice as articulated at the December 1, 2010 meeting, is in contravention of Article 14.03A3 of the collective agreement, which provides that Coordinators are teachers who, in addition to their teaching responsibilities, are required to provide academic leadership in the coordination of courses and/or programmes. […] Those employees who are designated as coordinators will receive an allowance equal to one or two steps on the appropriate salary schedule. Such allowances will be in addition to the individual’s annual base salary. 6. The union maintains that coordinating work performed by PL employees must be compensated in accordance with Article 14.03A3 of the collective agreement, above. 7. The union alleges that the above violations are ongoing, and occur whenever the college assigns coordinator duties to PL employees, or compensates such work pursuant to Article 26.02A. 8. By this grievance the union does not seek compensation for any individual PL employee. Rather, as the grievance itself states, the union seeks that the college establish and provide appropriate compensation to PL employees who are required to perform coordinator duties. The union maintains that such compensation must be in accordance with Article 14.03A3 of the collective agreement. Counsel for the college argued in support of his motion to dismiss the grievance for lack of jurisdiction that the collective agreement between the parties contained unique language: if an individual or a group was entitled to grieve then the union could not. This is found at Article 32.09 of the collective agreement which provides: 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 bypassed 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. 4 Counsel argued that the union was grieving that the employer is not paying partial load coordinators properly, and that the issue of pay is fundamentally an individual issue. An individual or a group could have grieved the issue. He argued further that it does not become a union grievance just because more than one person could grieve. The fact that the union is not seeking a remedy for any individual does not make the grievance into a union grievance. Once it is established that an individual could grieve the matter, the union must show that the decision not to pay partial load coordinators was an unreasonable standard that is patently in violation of the collective agreement and which adversely affects the rights of other employees in the bargaining unit in order for the board to have jurisdiction to hear the matter. Counsel argued that the union must establish all three of these criteria for us to find jurisdiction to hear the matter. He argued there is no standard in question, and that the union points only to comments made during a meeting between the parties. Further, there is no patent violation of the collective agreement. He submitted that the union is relying on Article 14.03 A 3 to allege that partial load teachers should be paid a coordinator’s allowance, when it is clear that the article does not apply to partial load employees. Article 14.02A provides: The salary schedule in 14.03 will apply to persons teaching more than 12 hours on a regular basis. Persons teaching over six and up to and including 12 hours on a regular basis will be covered by 26.04. Therefore, in counsel’s submission, the board is without jurisdiction to hear the matter and the grievance should be dismissed. In his oral submission counsel for the employer relied on the following cases in support of his argument that the grievance must be dismissed: Seneca College 5 and OPSEU, 1990, P. Picher; Loyalist College of Applied Arts and Technology and OPSEU, 2001, O’Neil; Fanshawe College and OPSEU, 2007, Knopf. The union takes the position that this grievance is about a policy. The union asked the college how partial load employees who were working as coordinators were compensated. The college informed the union that partial load employees working as coordinators were being paid at their regular teaching rate. The union maintains that the employer should pay partial load employees for coordinator work according to Article 14.03A3 of the collective agreement. Therefore, he argued that this is a patent violation of the collective agreement because they are not being paid properly. Since this is a difference between the union and the college involving interpretation of the collective agreement it is a proper union grievance. While one partial load person doing coordinating work could grieve their own pay, that individual could not challenge the policy as articulated by the employer on December 10, 2010, which was that partial load coordinators would be paid at their regular rate of pay for the extra hours of work. Counsel for the union argued that since it was a proper union grievance, the analysis under Article 32.0.9 ends at this point. However, in the alternative, he argued that the grievance satisfies the three criteria, which must be established under the article. He argued that it is an unreasonable standard that partial load employees only receive their normal hourly pay for coordinating duties. It was therefore a patent violation of the collective agreement and had an adverse impact on employees. Counsel for the union relied on the following cases in support of his argument that the motion should be dismissed: Fanshawe College and OPSEU, 1989, Brent; Northern College and OPSEU, 27 C.L.A.S. 145 (1992, Shime); Fanshawe College and OPSEU, 6 2002 Knopf; Toronto Transit Commission v. ATU, Local 113, 2000, Saltman; Ontario Institute for Studies in Education and Professional Staff Association of Ontario Institute of Studies in Education, 44 C.L.A.S. 69, 1996, O’Neil; Cancoil Thermal Corp and UFCW, Local 175, (2008) 174 L.A.C. (4th) 334, Starkman. After the hearing into this matter, the employer forwarded a decision involving the same parties and a similar issue for our consideration: St. Lawrence College and OPSEU, chaired by Arbitrator Starkman, and released November 21, 2011. The union provided written comments to us to distinguish it from the case before us. Having carefully considered the submissions of the parties we have decided that we must grant the employer’s motion to dismiss the grievance for want of jurisdiction for the following reasons. Article 32.09 has been in this collective agreement since 1988 and has been the subject of many thorough decisions through the years. We have considered all the case law put before us but note here that decisions interpreting Article 32.09 or its predecessor have been the most helpful and persuasive in our deliberations. Article 32.09 specifically restricts the union’s power to grieve when an individual or group could do so, unless it can show that an individual did not grieve and unreasonable standard, which is a patent violation of the collective agreement and affects others in the bargaining unit adversely. The union must satisfy all three requirements or the grievance is not arbitrable. (See Seneca College, supra at page 2.) 7 In Fanshawe College (2002) supra, at page 15, Arbitrator Knopf commented on Article 32.09: This article was clearly designed to allow a Union to mount grievances. But restrictions were placed on this to ensure that Union does not have a free hand to launch cases that more appropriately should be filed by individuals. On the other hand, the clause also recognizes that there may be situations where the Union may have an interest to pursue on behalf of its Membership, even if an individual is reluctant to launch the Grievance. The whole of article 32.10 must be read carefully to ensure that the tests are not diluted. It is arguable that the Union has an interest in everything that happens to a bargaining unit. The Union has an interest in the dues and contract interpretation in every discharge and suspension case because “just cause” and compensation issues arise. However, that alone cannot mean that the Union could or should be able to grieve a discharge or suspension case under Article 32.10. That article demands that the Union grievance involves higher matters concerning allegations of patent violations and unreasonable standards that adversely affect the rights of employees generally. There is no doubt in the case before us that the partial load professors, who were paid at their ordinary hourly rate for performing coordinator work could have grieved that they were improperly paid. The union’s argument that the individuals could not grieve the employer’s “policy” that they be paid their normal wages for this work is not persuasive in this case. There was no policy put before us. It would seem that the employer believes it is paying the partial load professors properly and the union thinks that they are not being paid correctly under the collective agreement. This is a difference between the college and the union in interpreting the collective agreement, but that is not enough to ground the allegations as a union grievance, given individuals could have grieved this pay issue. Thus, the next step in the analysis established in the case law is to consider the threefold test that the standard challenged is unreasonable and a patent violation of the collective agreement that 8 affects members of the unit. Previous boards have held for a breach to be patent it must be obvious on its face. In Seneca College, supra, at page 7, Arbitrator Picher quoted an earlier decision chaired by G. Brent from Sir Sandford Fleming College (1988) where the board held: In our view, in order for a violation to be “patent” it must be evident or plain on its face that there has been a violation of the agreement. That is, it is not sufficient that the Union can show an arguable case which could be a violation of the collective agreement depending on which of two reasonably possible interpretations are accepted, but rather there has been a clear, evident and plain violation of the collective agreement. In Loyalist College, supra, at page 21, Arbitrator O’Neil stated that the case law interpreting a “patent violation” has established a high standard: The words “patent violation” have been held to create a high standard (Seneca College and OPSEU, P. Picher January 31,1991), to mean the violation has to be crystal clear (Sir Sandford Fleming and OPSEU, Brent, April 25, 1988), or “leap from the page” (Centennial College and OPSEU, M.C. Picher, January 20, 1992). In Fanshawe College, supra (2002) the board held at page 17, that Article 32.09 “simply requires the Union to allege a patent violation. The Union does not need to prove conclusively during a preliminary objection that the grievance will succeed.” In the case before us, the union alleges that the college has breached the collective agreement by not paying partial load employees in accord with Article 14.03 A. It argues that it is a patent breach. The employer argues there is no patent breach because Article 14.03 A does not apply to partial load employees, citing Article 14.02 A. The alleged violation if proven could affect others in the unit. Thus, the only issue now is whether the allegation is a patent violation of the collective agreement. 9 A recent case between the parties is helpful. In St Lawrence College, supra (2011) the board upheld a similar objection to jurisdiction under Article 32.09. In this case, the union grieved that the employer was not paying partial load employees properly when they were required to attend meetings outside of their teaching hours. The board found that an individual could have grieved the matter of pay for mandatory meetings and therefore considered the threefold test. The central question was whether the grievance alleged a patent violation of the agreement. The board said at page 8, that “ a reading of article 26, which specifically addresses partial load teachers, and article 11 which addresses the calculation of complementary functions for full time professors does not, in our view indicate that the College is in patent violation of the provisions of the collective agreement.” The board held, that at its best, the union alleged an arguable case, which was not sufficient to give it jurisdiction to hear the matter. This case is very similar to the one before us. The union argues that the college should pay partial load teachers according to Article 14.03 A for work done as coordinators. The employer points out that Article 14.02 provides that “the salary schedule in 14.03 will apply to persons teaching more than 12 hours on a regular basis.” This suggests that partial load employees would not be entitled to pay under Article 14.03 A. Further, Article 14.02 provides that “persons teaching over six and up to and including 12 hours on a regular basis will be covered by 26.04.” Article 26 governs the rights of partial load employees. Article 26.01 B provides a definition of a partial load employee “as a teacher that teaches more than six and up to and including 12 hours per week on a regular basis.” The union’s alleged violation of the collective agreement is 10 certainly not plain on its face, obvious or “crystal clear”. At best, this is an arguable case and therefore we have to conclude that we do not have jurisdiction to hear this matter. For the foregoing reasons the grievance is dismissed. Dated at Kingston this 13th day of April, 2012 Deborah Leighton _________________________ Deborah Leighton, Chair “Ed Seymour” _________________________ Ed Seymour, Union Nominee, Dissent attached “Ann Burke” _________________________ Ann Burke, Employer Nominee IN THE MATTER OF AN ARBITRATION ~ BETWEEN ~ ST. LAWRENCE COLLEGE (“EMPLOYER or COLLEGE”) ~ AND ~ ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 417 (“UNION”) AND IN THE MATTER OF A UNION POLICY GRIEVANCE DISSENT EDWARD E. SEYMOUR, UNION NOMINEE I have read the majority award and with respect I must dissent. It is difficult to find anything that is more integral to a collective agreement than the issue of workload and the payment for such. Paying one group of employees a lower rate of pay for performing the same work as another group of employees is in my view a patent violation of the collective agreement. Article 1403 A of the Collective Agreement as it pertains to payment for performing Coordinators duties is clear and reads as follows: 14.03 A 3 Coordinator Allowance - Coordinators are teachers who in addition to their teaching responsibilities are required to provide academic leadership in the coordination of courses and/or programs. Coordinators report to the academic manager who assigns their specific duties. It is understood that coordinators do not have responsibility for the disciplining of teachers in the bargaining unit. It is not the intention of the Colleges to require employees to accept the designation of coordinator against their wishes. Those employees who are designated as coordinators will receive an allowance equal to one or two steps on the appropriate salary schedule. Such allowance will be in addition to the individual’s annual base salary. (my emphasis) By declining jurisdiction, the Majority has condoned a policy that affirms the employers’ right to treat one group of employees, namely partial load employees, as inferior while at the same time undermining the integrity of the collective agreement as it impacts full time employees. The Majority has all but rendered this clause non-existent for both full time and partial load employees. If the employer can have partial load employees perform coordinator’s duties at their regular rate of pay, it is unlikely that full time employees would be used for the task. This places both groups of employees in an unenviable position as it pertains to coordinators duties and payment for such. In my view, the issues involved in this case fall well within the jurisdiction of an Arbitration Board and I would have so ruled. Edward E. Seymour April 21, 2012