Canadian Labour Reporter

March 26, 2018

Canadian Labour Reporter is the trusted source of information for labour relations professionals. Published weekly, it features news, details on collective agreements and arbitration summaries to help you stay on top of the changing landscape.

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Canadian HR Reporter, a Thomson Reuters business 2018 March 26, 2018 ARBITRATION AWARDS 8 and benefits coordinator (P&BC) which meant an employee would become "privy to confidential in- formation relating to bargaining unit members such as garnish- ments, disciplinary actions, salary information for all employees, and confidential communication from the housing authority direc- tor." But the union disagreed with the move and on Oct. 11, both parties submitted to a third party for a resolution on the disagree- ment. Meanwhile, the position was filled on Oct. 26 by Alana Sprac- klin, who then took maternity leave. On Dec. 22, Tammy Long filled the position on a term basis and she signed a declaration of confi- dentiality agreement as a condi- tion of employment. But on Feb. 10, 2017, the third- party talks failed to provide an agreement, so CUPE formally grieved the decision and argued the employer violated three arti- cles of the collective agreement and the Trade Union Act "by ex- cluding from the bargaining unit the position of payroll and bene- fits coordinator." The employer argued the new position "should be involved in the grievance and bargaining process," in a June 17 internal email regarding the new position description and, therefore, the P&BC should be excluded from the bargaining unit. Because the housing author- ity's HR department was central- ly located in Halifax, there was a need to have someone in Sydney to manage HR issues, argued the employer, which meant the P&BC would periodically delve into per- sonal employee matters for the 140 employees at the Cape Breton Island location. "It is hard to rely always on Hali- fax human resources, we need someone local," testified Howie. But on Nov. 28, Stewart Mathe- son, director, decided, "Effective immediately, all union questions pertaining to payroll, benefits, service time, vacation, start dates, pension, dues remittances, rate of pay, increments, etc. are to be sent" to him pending a decision on the P&BC. Arbitrator Augustus Richard- son upheld the grievance and ordered the position to remain in the bargaining unit, and the employer was directed to com- pensate CUPE for losses of union dues. "I was not persuaded that the employer had met the onus on it of establishing that the position of P&BC was one excluded from the bargaining unit as being a position involved in a confidential capacity in matters relating to labour rela- tions," said Richardson. The authority's argument that it needed to attach an HR com- ponent to the P&BC position was not warranted, according to- the arbitrator. "I can certainly appreciate how it might be useful at least in theory to have someone local — some- one intimately familiar with the office, operations and employ- ees of the employer — to assist management and supervisors in labour relations matters. But in this case, the employer (or the government that set up the organ- izational structure) chose to cen- tralize the personnel responsible for the provision of advice and support with respect to labour relations in Halifax," said Richard- son. "But the employer cannot ac- complish that end by fastening a few labour relations responsibil- ities that might arise only period- ically onto a job that falls and has always fallen squarely within the bargaining unit, at least where there is no evidence of an actual (as opposed to a theoretical) need for such a position." Reference: Cape Breton Island Regional Housing Authority and Canadian Union of Public Employers, Local 4840. Augustus Richardson — arbitrator. Dorianne Mullin for the employer. John Gillies for the employee. Feb. 20, 2018. 2018 CarswellNS 125 teacher' or a 'substantial record of research, scholarship or creative and professional activities,' and I recommend that promotion to professor not be granted at this time," wrote Golfman. The collective agreement pro- vided detailed instructions of when a professorship would be granted. One of two requirements had to be met for a successful promotion. The associate must demonstrate "a superior record of research, scholarship, or creative and professional performance" or "a superior record of teaching ef- fectiveness, as evidenced by docu- mentation compiled by the faculty member following suggestions in the CAUT teaching dossier, along with a substantial record of research, scholarship, or creative and professional activities." Mantyka applied for the profes- sorship under the latter criteria. But on Feb. 24, Kachanoski pro- vided her with an initial negative assessment from the promotion and tenure committee: "We feel that the informa- tion within your assessment file does not adequately distinguish between the effectiveness with which you carry out this assign- ment versus the performance of the Mathematics Learning Cen- tre as an entity unto itself. The distinction between your ad- ministrative activities and your teaching duties also seems to be blurred." As well, Mantyka's academic output was critiqued and found to be lacking: "Your peer-reviewed research output in this discipline has been one journal article (in 2014), one article in a book (pub- lished in 2009) and two confer- ence proceedings (in 2008 and 2001)." The union, the Memorial University of Newfoundland Faculty Association (MUNFA), grieved the decision on June 2 and charged the employer with breaching the collective agree- ment by not providing Mantyka with notice that she could submit further documentation with the initial application. As well, the union said Manty- ka's career was "non-tradition- al" and her innovative teaching didn't necessarily include many peer-reviewed papers because of its unique nature. Arbitrator chair Pamela Picher (along with board members Greg- ory Kealey and Jennie Hornosty) dismissed the grievance, but they found the employer did breach the agreement when it didn't provide Mantyka with the initial notice of adding further documentation. However, any breaches "were technical in nature only and did not undermine the integrity of the process applied to Dr. Mantyka's application for promotion to full professor," said Picher. Five letters of reference were attached to the promotion appli- cation, but they were not ignored by the committee, despite the as- sociation's charge that they were. "The board has concluded that the committee balanced the five positive endorsements along with the other relevant factors placed before it and with fairness and due process came to its own de- termination that, in the board's assessment, was not arbitrary, ca- pricious or unreasonable and was well supported by the evidence before it," said Picher. Despite unorthodox teaching methods, the committee fairly found that Mantyka did not dem- onstrate a "substantial record of research, scholarship, or creative and professional activities," said Picher. "The committee and subse- quent levels of review applied a substantive evaluation to all rel- evant factors and provided Dr. Mantyka with a full and fair evalu- ation of her application for pro- motion to full professor." Reference: Memorial University of Newfoundland and Memorial University of Newfoundland Faculty Association. Pamela Picher — arbitrator. Darren Stratton for the employer. James Farrell for the employee. Jan. 19, 2018. 2018 Car- swellNfld 30 Employer wanted HR function put into clerk job description < Memorial University pg. 1 < Bargaining unit pg. 1

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