Canadian Labour Reporter

JANUARY 20, 2014 8 Canadian HR Reporter, a Thomson Reuters business 2014 Continued from page 6 management rights clause was broadly-worded, the collective agreement had additional provisions pertaining to new jobs and seniority lists. "In this case, the reorganization did not involve layoffs or eliminating any positions. Rather, the company chose to redeploy employees to specific departments performing more specialized jobs," Stout continued. Although those 87 workers were permitted to exercise senior- ity rights from the master or intermingled lists, the situation was not as dire as the union claimed. "There is no doubt that some employees may lose some op- portunities based on seniority. However, they are not left without recourse as the collective agreement specifically contemplates situations where reorganization may affect job seniority lists for existing jobs. Scheduling, including vacation and overtime, will be affected by the reorganization. However, that is not much different than the affect of any reorganization upon affected em- ployees who may have to exercise their seniority rights to bump to different positions," he said. While both parties have historically demonstrated an unpar- alleled ability to negotiate at the bargaining table, that does not mean management is forever bound to seek union approval in the future, Stout concluded. Therefore, he ruled management did not violate the collec- tive agreement. Reference: Essar Steel Algoma and the United Steelworkers Lo- cal 2251. John Stout – arbitrator. Michael Hines for the employer, Michael Da Prat for the union. Jan. 3, 2014. Sabbatical leave protected by overlooked article IF MOUNT ALLISON University is unhappy with his decision, arbitrator George P.L. Filliter ruled, the institution can voice opposition at the bargaining table. Filliter found the Sackville, N.B., university in violation of an article it overlooked in collective bargaining when it postponed the sabbatical leave of one of its employees, Rich- ard Hudson. "It is clear to me this interpretation may not be satisfactory to anyone but the grievor," Filliter said. "Therefore, the parties will have to address the issue… in the next round of collective bargaining." The Mount Allison Faculty Association filed a grievance on Hudson's behalf when the university deferred his sab- batical leave. In October 2012 Hudson, a faculty member since 1985, was declared eligible for leave for the 2013-2014 academic year. In November 2012, Hudson was notified his sabbatical had been postponed for one year. Both parties agreed the reasons for the postponement are not at issue. Between the years 1993 and 2008 Mount Allison Univer- sity employed a policy requiring mandatory retirement at the end of the academic year following a faculty member's 65th birthday. The 2002-2006 collective agreement added a clause that prevented the university from postponing the sabbatical leave of an employee within two years of retirement. This clause was meant to ensure an employee returned from sab- batical leave for at least one year of work before mandatory retirement. The mandatory retirement clause was eliminated from the 2007-2010 collective agreement. In its place was an article defin- ing the "normal retirement date" as the last day of the academic year in which a faculty member turned 65. No changes were made to the clause concerning the deferral of sabbaticals when mandatory retirement was abandoned in favour of the normal retirement date. Hudson's normal retirement date was June 30, 2013. Hudson argued he had been found eligible for a sabbatical leave at a time when he was within two years of normal retirement and there- fore protected by the clause. Hudson argued the elimination of mandatory retirement did not result in any changes made to the clause protecting sabbati- cal leave. He submitted the clause now applies to the normal retirement date, protecting the sabbatical leave of faculty within two years of their 65th birthday. The employer argued the sole purpose of the clause was to guarantee faculty returned to work for at least one year following a sabbatical and before mandatory retirement. With mandatory retirement no longer in effect, the university said, the clause is no longer applicable. Furthermore the university argued Hudson was declared el- igible for sabbatical leave in 2012, the academic year in which he turned 65. This would mean his leave, if not postponed, would have taken place the following year after his normal retirement date. This time frame subverts the clause — initially applied to en- sure faculty took sabbatical leave at least one year before man- datory retirement — and allows the university to postpone Hud- son's leave. Arbitrator Filliter, however, disagreed with the university's assessment. He stated both parties were obviously aware the elimination of mandatory retirement required a change to the clause protecting sabbatical leave but failed to amend the col- lective agreement at the time of bargaining. "The elimination of mandatory leave allows employees to work beyond the age of 65, but the parties recognize 65 as the normal retirement date," Filliter said in his decision. "In so doing, I conclude they must therefore have intended to continue to protect employees granted sabbatical leave with- in the last two years of normal retirement. If the employer did not intend to provide this protection, or put another way, did not want to be prohibited from postponing sabbatical leaves of such employees, the collective agreement should have been amended." As a result, he concluded the university violated the contract. Reference: Mount Allison University and the Mount Allison Faculty Association. George P. L. Filliter – arbitrator. Richard Petrie for the employer, David Mombourquette for the union. April 17, 2013.

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