Michael N. Grunwell v. Fanshawe College of Applied Arts and Technology, 1980 CanLII 928

[1980]OLRB Rep. April 433

2218-79-U Michael N. Grunwell, Complainant, v. Fanshawe College of Applied Arts and Technology, Respondent, v. Ontario Public Services Employees Union, Intervener.

BEFORE: George W. Adams, Chairman and Board Members F. W. Murray and B. L. Armstrong.

APPEARANCES: Michael H. Grunwell, E. Ross Rachar and Joseph Dunlop-Addley for the complainant; F. G. Hamilton and others for the respondent; and Chris G. Paliare and Gerry Griffin for the intervener.

DECISION OF THE BOARD; April 11, 1980

1. This is a complaint under section 78 of The Colleges Collective Bargaining Act, 1975, alleging a violation of section 55(1) of the said Act.

2. Section 55(1) provides:

"Where notice has been given by either party to an agreement under section 5, except as altered by an agreement in writing by the parties, the terms and provisions of the agreement then in operation shall continue to operate until there is a right to strike or lock-out as provided in this Act."

3. The complainants, five employees of the respondent allege that the respondent's president improperly altered their terms and conditions of employment on or about February 22, 1980 by paying them amounts of money in excess of their regular salary payments- the contested salary adjustments having been described to them by the respondent as "required by the new Memorandum of Agreement." They take the position (1) that no new memorandum of agreement was properly ratified by the membership of the intervener trade union, having regard to the policies and procedures of the Colleges Relations Commission; (2) that, alternatively, the new memorandum of agreement did not provide for the immediate payment of salary adjustments; and (3) that there does not exist any other agreement in writing specifically authorizing the alteration of salary levels under section 55(1) of the said Act.

4. The respondent challenges the status of the complainants to lodge the complaint, submitting that section 55(1) is designed to protect the bargaining rights of the intervener trade union and it has not authorized the instant complaint. It further argues that, in any event, the salary increase complained of took place at the request of the intervener trade union which the exclusive bargaining agent of the complainants and that the contested alteration in conditions of employment is adequately documented by an agreement in writing when the said document is read against the background of the parties' past practices and oral communications.

5. The intervener requests that the complaint be dismissed because it has not authorized the lodging of the complaint and because it consented to any and all increases in salary which were paid to the academic staff of the community colleges on or about February 22, 1980.

6. The Board decided to hear evidence which pertained to the status of the complainants to lodge the complaint and to the related issue of whether or not the contested salary increases were adequately supported by an agreement in writing as provided for by section 55(1). The Board reserved its decision on the issue of the complainants' status to address this second issue. The complainants therefore were permitted to adduce evidence and make argument on the second issue under the Board's general reserve as to their status to do so. It was thought that this approach would provide the Board with sufficient background to deal meaningfully with the issue of the complainants' status, while avoiding the need for an additional hearing if it was subsequently determined that the second issue was properly before the Board.

7. The background to this complaint is not in dispute. The Colleges Collective Bargaining Act, 1975, defines an employer as a board of governors of a college of applied arts and technology but the Ontario Council of Regents for Colleges of Applied Arts and Technology is given the exclusive responsibility for all negotiations on behalf of employers by virtue of section 2(3). Thus, bargaining under the Act is province-wide and in this instance involves 22 colleges and 6500 full-time academic employees and several thousand "partial load" employees. Introduced into evidence was a collective agreement pertaining to these employees and having a term of September 1, 1977 to August 31, 1979. Notice to bargain for the renewal) of this collective agreement was given in the appropriate manner. Bargaining ensued to the point where final offer and strike authorization votes were conducted under section 60(1) of the Act. The results of these ballots saw the Council's last offer rejected and the request for strike authorization defeated. Mediation then followed, with no right to strike having accrued, and a memorandum of agreement dated December 8, 1979 was subsequently entered into. The trade union, with the required assistance of the Colleges Relations Commission, conducted a ratification vote with respect to the memorandum of agreement on January 15, 1980 and representatives of the Council were advised by representatives of the trade union that the unofficial tally was in favour of the agreement. However, shortly after the taking of the vote, an employee of the respondent filed a complaint with the Colleges Relations Commission challenging the ratification vote on the basis of alleged insufficiencies in information provided to the membership and alleged misrepresentations made by the intervener trade union. The complainant before the Commission is not one of the complainants before this Board and his complaint appears to have been filed under paragraph 9 of CRC Policy No. 17 which provides:

"No one shall

(a) coerce or unduly influence any employee in the bargaining unit with regard to his vote;

(b) interfere with the secrecy of the ballot; or

(c) remove any notice or document posted under these procedures."

8. Paragraph 20 of the same policy provides:

"In the event of an objection to the conduct of the vote or of the counting of ballots, the Returning Officer shall collect, hold and seal all ballots until a determination on the objection has been made."

However, notwithstanding this latter provision, it was the evidence of Gerry Griffin, Chief negotiator for the trade union, that officials of the Commission conducted an official tabulation of the results of the ratification vote in the presence of representatives of both parties on January 21, 1980 and this count confirmed the acceptance of the memorandum of agreement.

9. It is to be noted that the memorandum of agreement dated December 8, 1979 provided for a wage increase effective August 31, 1979. Because of complaints by employees about the delay in implementing new wage increases, the parties have come to adopt a system of implementing wage increases on the ratification of a memorandum of agreement but before the signing of a formal collective agreement. This was the practice followed for the 1977-79 collective agreement and, following January 21, 1980, Griffin asked Angelo Pesce, representing the Council, that the practice be followed in 1980. Pesce agreed provided that Griffin give him a letter confirming that the memorandum of agreement had been ratified In response, Griffin wrote the following letter to Pesce dated January 21, 1980:

"Dear Mr. Pesce:

This is to advise you that the tentative settlement between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union representing the academic staff was ratified January 15, 1980."

10. Following the receipt of this letter, Pesce prepared instructions for the implementation of the wage increases by the 22 colleges and the instructions went out over the signature of Norman E. Williams, Chairman of the Council of Regents, by memorandum dated January 23, 1980. Pesce testified that it takes about a month to complete the paper work and implement salary increases across the system, although smaller colleges are able to implement their increases in a shorter period of time.

11. Pesce further testified that on January 31, 1980 the solicitor to the Council of Regents advised him of a Globe & Mail report indicating that a complaint about the conduct of the ratification vote had been made to the Commission and, subsequently, an investigator appointed by the Commission made official contact with the Council in mid-February. As a result of this information, the Council has taken the position that the formal signing of the collective agreement and the related implementation of other benefits ought to wait the conclusion of the Commission's investigation. Thus, the contractual benefits of over 6,500 employees are now awaiting the resolution of the complaint of one employee. However, the retroactive wage increases were implemented and it is this action, in the face of the College Relations Commission's inquiry, that these five complainants contest.

12. It is to be noted that the 5 complainants are the only employees to complain of this action. Moreover, they do not wish the employers to reclaim the monies distributed but merely wish a declaration from this Board that the Act was violated.

13. This complaint must be dismissed and we so rule.

14. We re satisfied that the complainants lack the standing to file a complainant based on section 55(1) in these circumstances. We are also satisfied that Griffin's letter of January 21, 1980, read against the memorandum of agreement and the relationship of the parties, constitutes a properly authorized agreement in writing within the meaning of section 55(1). However, we need make no definitive ruling in this latter respect because the complainants lack the standing to put the issue before us in the circumstances. We would further note that the complaint before the Colleges Relations Commission does not affect the intervener s authority, as the exclusive bargaining agent of all the employees it represents, to consent to changes in conditions of employment under section 55(1).

15. We agree with the submissions of counsel for the respondent and intervener that section 55(1) is designed to protect the bargaining rights of the trade union bargaining agent and that an employee organization such as the intervener is the exclusive bargaining agent of the employees; in a bargaining unit. These two labour relations principles mean that the complainants cannot bring the instant complaint in their own names and, particularly, without the consent of the intervener.

16. This complaint is dismissed.