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IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT
-and-
IN THE MATTER OF AN ARBITRATION
BETWEEN:
SAULT COLLEGE
- The Employer
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
- The Union
AND IN THE MATTER OF THE
GRIEVANCE OF
Tanya Running
OPSEU GRIEVANCE #2012-0612-0002
BEFORE : Kathleen G. O’Neil, Single Arbitrator
APPEARANCES:
For the union: Mary MacKinnon, Counsel
Lorri Foley, Local President
Tanya Running, Grievor
For the Employer : Dan Michaluk, Counsel
Rick Webb, Director of Human Resources
Janice Beatty, Vice President of Corporate
and Student Services
Susan Hunter, Director, Marketing and
Communications
A hearing was held in Sault Ste. Marie, Ontario on June 13, 2012
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Preliminary Decision
The grievance before me alleges that the College has contravened the collective agreement in laying
off Tanya Running from her job as a Student Recruitment and Success Advisor and reassigning her
to a newly created position, Student Success Advisor, in a different department. This decision deals
with the employer’s request to dismiss the grievance on a preliminary basis, on the basis that it does
not make out an arguable or prima facie case.
The parties argued the preliminary motion on the basis of an agreed statement of facts, on which the
following account of the factual background is based.
Factual Background
Before her layoff in February 2012, Ms. Running was employed as Student Recruitment and
Success Advisor in the Marketing and Communications Department, working a 35 hour week.
Approximately 70% of her duties related to student recruitment and approximately 30% of her
duties related to student retention. This was agreed to without prejudice to the College's position,
should the matter proceed to full hearing, that the workload associated with the 70% duties
related to student recruitment was on the decline.
In late 2011, the College decided it needed a position dedicated entirely to student retention in
the Student Services Department, rather than the 30% in Ms. Running’s former position. The
College advised the local union of its intent and the parties had discussions. These discussions
led to the filing of a union grievance dated November 29, 2011, alleging the violation of the lay-
off provisions of the collective agreement, and asking for the posting of a new position of Student
Retention Officer and the declaration of redundancy of Ms. Running’s position and the
withdrawal of the layoff.
The College proceeded with its plan notwithstanding the Local's grievance, and assigned Ms.
Running to a newly-created Student Success Advisor position in the Student Services
Department, at the same pay band. It gave her an option to elect lay-off, which she did not take.
The new Student Success Advisor position is a position dedicated to student retention that
subsumes the student retention duties formerly assigned to Ms. Running. The College re-
allocated the remaining 70% of the duties from her former position. The parties are in dispute
about how these duties were reallocated. The College's position is that all the duties were
reallocated to Mr. Randy Gaetano, a member of the support staff bargaining unit. The union’s
position is that the duties were assumed primarily by a part-time employee and by several
students who have been hired by the College. The union does not dispute that some duties
were assigned to bargaining unit members.
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When the union grievance was referred to arbitration on January 17, 2012, the college objected
that the referral was late. On January 25, 2012, the union grieved on behalf of Ms. Running,
asking for Ms. Running’s return to her previous position and the withdrawal of the layoff. This
grievance has been processed in a timely manner. The union later withdrew the first grievance.
The College executed the layoff and reassignment because it needed a position dedicated to
student retention in the Student Services Department. The Union does not allege the College
acted in bad faith.
Provisions of the Collective Agreement
For the purposes of this preliminary matter, the following are the most relevant provisions of the
Collective Agreement:
1.1 Exclusive Bargaining Agent
The union is recognized as the exclusive bargaining agent for all Support Staff
employees of the Colleges, save and except:
…
Persons regularly employed for twenty-four (24) hours per week or less;
…
1.2 Staffing Considerations
Recognizing that the College reserves the right as provided in Article 3, to
determine the number and composition of full-time, part-time, and otherwise
excluded positions, and to determine the work assignments that are appropriate
in each case, the College will give preference to full-time over part-time
assignments, and to convert part-time to full-time assignments where feasible,
subject to such operational requirements as may be appropriate.
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function of the Colleges to:
- maintain order, discipline and efficiency;
- hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall
and suspend or otherwise discipline employees subject to the right to lodge a
grievance as provided for in this Agreement;
- generally to manage the College and without restricting the generality of the
foregoing, the right to plan, direct and control operations, facilities, programs,
courses, systems and procedures, direct its personnel, determine complement,
organization, methods and the number, location and positions required from time
to time, the number and location of campuses and facilities, services to be
performed, the scheduling of assignments and work, the extension, limitation,
curtailment or cessation of operations and all other rights and responsibilities not
specifically modified elsewhere in this Agreement.
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The Colleges agree that these functions will be exercised in a manner consistent with
the provisions of this Agreement.
Parties’ Arguments
The College asks for a dismissal of the grievance on a preliminary basis, submitting that the
union has raised no arguable case for a breach of Article 1.2 or any other part of the collective
agreement, as the employer properly complied with the lay-off provisions. Employer counsel
submits that, after the withdrawal of the union grievance, what is left is an individual grievance
concerning the undermining of bargaining rights due to the manner in which the change was
effected. The employer processed the change as a lay-off, which it submits was the union’s
suggestion, eliminating one position and creating a new one in the same pay band.
The employer’s position is that there was no reduction in bargaining unit work because the work
went to Mr. Gaetano, a member of the bargaining unit, but counsel acknowledges that the
motion is to be decided on the union’s asserted facts, i.e., that the work went primarily to a part-
time employee and students, although the union does not dispute that some work went to
bargaining unit members.
Counsel for the employer refers to two previous arbitration awards which have interpreted Article
1.2, Seneca College and OPSEU, (Union Grievance), unreported decision of a panel chaired by
Arbitrator MacDowell, dated May 16, 2003 and Sault College and OPSEU, (Koprash
Grievance), unreported decision of a panel chaired by Arbitrator Tacon, dated February 25,
2005.
In the Seneca College case, the parties had proceeded by way of asking for an advisory opinion
on a number of questions, on the basis of agreed facts, in an attempt to avoid having to call
lengthy evidence. The first of those questions was:
If the union is able to demonstrate that the College employed a number of part-
time staff for periods that combined exceeded 24 hours a week on a continuing
and ongoing basis, does the onus shift to the College to demonstrate that it has
met the obligations outlined under Article 1.2?
In answer to that agreed question, the Board of Arbitration found that:
…the preliminary burden on the union is “relatively light”, and the “onus of
explanation” shifts fairly readily to the employer, once it is established: that there
is a continuing pattern of employing a number of part-timers; that those
employees are doing a coherent bundle of similar duties (something that if
combined might amount to a “job”; that they are working regular, noncontiguous
hours; and that, on the surface at least (i.e. arithmetically), those hours could be
aggregated to a sum greater than 24, for one or more individuals.
Of the four requirements, set out there, the College asserts the union has only shown one: a
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coherent bundle of similar duties, and that the other three are lacking. Counsel submits there is
no pattern of employing part-timers and that the numerical and other factual elements have not
been established by the union. Indeed, the grievance arose out of a lay-off on January 24 which
was not in effect when the grievance went in on January 17. Counsel argues that the details of
the reassignment are unparticularized, and that the entire grievance will be based on post-
grievance evidence, such that there could be no pattern in existence at the time of the grievance.
There is no fact alleged in the union’s particulars to show that employees are working regular
non-contiguous hours or that the hours that went to part-timers aggregate to more than twenty-
four hours. The latter number is based on the definition of the full and part-time bargaining units
in the Colleges Collective Bargaining Act, reflected in Article 1.1.
Based on the union’s assertion that the hours formerly spent on recruitment in the grievor’s
previous position are now primarily being performed by part-time employees, the employer does
the following calculation, as the basis for its submission that the quantitative part of a prima facie
case has not been established by the union. The grievor worked 35 hours in her former job, of
which 70 % were agreed to be concentrated on recruitment, which comes to 24.5 hours left
behind when the grievor moved to the new job dedicated fully to retention. Counsel translates
the “primarily” in the union’s assertion, to more than 50%, so that the hours that are alleged to
have gone to part-timers must be something more than 12 or 13 hours. As to the upper
threshold, of 24.5, only a half an hour above the threshold for inclusion in the full-time bargaining
unit, counsel notes that the union does not dispute that some of the work was given to
bargaining unit members. Counsel further argues that, unless the union says that the work
assigned to a bargaining unit member does not even amount to half an hour a week, it can be
inferred that the number of hours being re-assigned outside of the bargaining unit is less than 24.
Since that was not what the union said, counsel argues the inference is therefore open on the
agreed facts that there is not enough work re-assigned outside of the bargaining unit on which to
mount a successful case. Counsel asserts that the union must “lead trump”, in the sense of
particularizing all the facts that make out a successful “best case”.
In sum, counsel says that any one of the above failings rules out the grievance, but the most
fundamental is that there is no staffing pattern at the time of the grievance.
Employer counsel notes that this situation is in contrast to the factual situation in the Sault
College precedent, where the union was arguing for the combination of two part-time positions of
24 hours that had existed for some time, thus creating a staffing pattern, and enough work to
sustain a full-time position. The grievance was unsuccessful because the Board of Arbitration
accepted the employer’s operational reason for maintaining the two positions. In coming to that
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conclusion, the decision adopted the criteria established in the above-noted Seneca College
decision, but assumed they had been met, as the determinative point was the acceptance of the
operational reasons given by the employer. Counsel for the employer recommends the decision
for the acceptance of the criteria in Seneca College as well as for the argument made by the
employer in that case about management’s rights in responding to a lay-off.
The facts of the earlier Sault College case involved a grievor whose job had been declared
surplus, as a result of which she was laid off. The claim was that the employer should have
combined two part-time positions, into a position within the full-time bargaining unit, and allowed
the grievor to displace those part-time employees. The employer argued, among other grounds,
that the collective agreement provisions regarding conversion of part-time to full-time positions
were not available in the context of a lay-off. Arguing that the lay-off provisions had been
followed, and that the agreed bumping rights only mention other full-time positions, the employer
maintained that the collective agreement did not embrace conversion of part-time positions to
full-time at the point of lay-off. In that context, and given that an arbitrator is not permitted to
amend the collective agreement, the employer argued that the arbitration board was precluded
from converting a lay-off grievance into a claim for combining part-time positions. The arbitration
board declined to decide that issue, leaving it for a case where it was necessary to decide, as
the grievance was dismissed on the basis of operational problems in combining the proposed
positions.
Counsel for the employer says that the above argument also applies here, that as the employer
effected a lay –off of a position in accordance with the provisions of the collective agreement, the
union cannot point to article 1.2 and a couple of part-time positions to “cobble together”. The
employer argues that the effect of a lay-off has been bargained, and that it ought not to have to
face an allegation based on article 1.2 when the agreed lay-off provisions have been followed.
Counsel argues that the argument is stronger in facts like Ms. Running’s grievance, when it is a
claim about duties that are re-assigned. It is the employer’s position that an employee who has
been re-assigned is not able to get the duties back through Article 1.2. Counsel argues that
management’s right to re-assign is not fettered in that manner. Accordingly, the employer finds
the claim for remedy, which is a return to the grievor’s previous position, to be inconsistent with
the employer’s right to manage, and a circumvention of the lay-off provisions bargained by the
parties, with which it maintains it complied entirely. Employer counsel submits that the grievance
is really a challenge to the college’s right to re-assign. If, for whatever reason the grievor wants
her old job back, it is simply not a right granted under the collective agreement, in counsel’s
estimation.
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By contrast, the union’s position is that there is sufficient work to support a full-time Recruitment
and Retention Advisor in the Marketing and Communication Department, and if the college
needed an additional position in Student Services, it was required to post it.
As to the dispute as to what happened to Ms. Running’s duties, the union maintains that they
were not given to Mr. Gaetano, the bargaining unit team lead in the Marketing and
Communication Department, to whom the grievor reported. Rather, they were given to part-time
employees and students on a casual basis to do student recruitment. From the union’s
perspective, this amounts to a failure to adhere to Article 1.2. Acknowledging the employer’s
right to manage, union counsel notes that it must be done in accordance with the collective
agreement’s preference for full-time rather than part-time positions. In this case, the union
argues management has done the opposite by disassembling the full-time work and assigning it
to part-time and casual employees.
Union counsel notes that there are two junior recruitment officers in the marketing department
but that the College decided to reduce the recruitment duties by transferring Ms. Running, the
more senior employee, when they could have changed her duties in the department and
transferred someone else.
Union counsel submits that making out an arguable or prima facie case is a very low threshold
for the union to meet, in light of the case law. If the union’s theory and facts have a possibility of
success, then the employer’s motion should be dismissed, in the union’s view. Union counsel
argues that some of the submissions made by employer counsel rely on assumptions from the
particulars, for which evidence would be required, such as the hours of work, the amount and
nature of work done by part-time and casuals at the time of the grievance. Counsel notes that
the Board of Arbitration in the earlier Sault College heard evidence on the similarity of the duties
assigned to part-time employees, and the feasibility of combining them. The union submits it is
premature to dismiss the grievance without hearing evidence, and based on the assumptions
and inferences invited by the employer from the agreed facts.
Turning to the two cases referred to, union counsel acknowledges the four-part test in Seneca
College, but notes the circumstances in which the Board of Arbitration looked at them. It was not
a lay-off case; the question was whether there was sufficient part-time work to combine into a
full-time position. Further, union counsel emphasizes the portion of that decision which outlined
two distinct aspects to the collective agreement’s preference for part-time positions: the required
effort to prefer full-time over part-time positions when work is being assigned or created, and a
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separate obligation to convert part-time to full-time assignments. Counsel notes that in
considering both, the arbitrator was starting from a different point than in this case. Here, the
union is not asking that duties formerly part of long-standing part-time work be bundled together
as in Seneca. The current grievance proceeds from the starting point that there was a full-time
position. The question is whether the employer should be allowed to disassemble a full-time
position and create part-time positions, rather than a request to cobble together part-time work.
In such circumstances, the union does not have to show a pattern of use of part-time, in the
union’s view. In any event, counsel for the union submits that there is a pattern in the full-time
work that existed in the grievor’s previous job.
In the alternative, counsel argued that if the union is wrong on this point, and there is an
obligation to show a pattern of work at the time of the grievance, there should be given a chance
to do that with evidence, and making a decision before such an opportunity would be premature.
As to the mathematical argument made by employer counsel, union counsel notes that such a
point had not been raised before, so that whether less than a half-hour was reassigned into the
bargaining unit was not a level of precision that she had available to her. Nonetheless, union
Counsel submitted that if there were 24.5 hours remaining in the first department, they could
have been offered as a as a full-time position with less than 35 hours.
Turning to employer counsel’s argument about the interface between Article 1.2 and the lay-off
provisions of the collective agreement, counsel for the union underlines that the Board of
Arbitration in Sault College did not decide that an individual grievance about Article 15 precludes
reliance on Article1.2. Counsel submits it is not a sound interpretation of the collective
agreement to say that because the employer has complied with Article 15 regarding lay-off that
they do not have to comply with other provisions of the collective agreement, such as Article 1.2.
The union’s submission is that the collective agreement should be read as a whole and the rights
contained therein should not be seen in separate silos. As well, counsel notes that these parties
have been quite capable of saying what can and can not be relied on by individuals and unions
in other parts of the collective agreement, and such wording should not be implied here.
In reply argument, counsel for the employer invited a pragmatic look at the function of the
process involved with the preliminary motion. Counsel sees it as akin to a motion for
summary judgement, which screens a case for its merits in order to avoid the unnecessary
great expense of days of hearing and evidence in cases where they are not necessary.
Counsel asserts that it is not sufficient for the union to say they do not have the answer to
important facts such as whether the work assigned to part-timers amounted to 24.5 hours, or
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how much was assigned within the bargaining unit. Counsel says one cannot carry on a case
hypothetically; the union has an obligation to particularize sufficiently to drive the matter to a
hearing. Employer counsel submits that it is not the college who bears the consequence of
minimal particulars. More specifically, counsel maintains that the inference that there are not
24.5 hours available is clear and easy to make from the agreed facts. To suggest that a
hearing is required to make a decision on that is contrary to the whole preliminary process. In
the employer’s view, the union had a duty to answer the question about the quantity of hours,
and the only reason they did not is that there is not enough work left to support a full time
position. In the employer’s submission, this is the clear inference from the facts, and the
union’s failure to respond to the motion in a more detailed way.
Considerations and Conclusions
It is important to emphasize that in deciding on a preliminary motion, such as this, the issue is not
whether the grievance will surely succeed, but whether there is an arguable case. The question is
whether there is a case to be met at all, which is assessed without regard to the strength of the
employer’s case, and assuming the union’s assertions of fact are true and capable of proof. The
arbitrator’s task, on a motion challenging a grievance for want of a prima facie case, is to look at the
asserted facts, assuming them to be true and provable for the purposes of the motion, and determine
whether they are capable of supporting the violation of the collective agreement alleged in the
grievance. Findings concerning any disputed facts are not made at this stage.
The grievance alleges the College has breached Articles 1, 2, 3 and 18, “but not exclusively”, of the
collective agreement. Thus, the written grievance leaves open further sections of the collective
agreement. The Union’s submissions in response to the employer’s motion concentrated on Article
1.2, but referred to points which would engage other portions of the collective agreement. These
included the posting provisions, when it was argued that there was adequate work remaining in the
Marketing and Communication Department, and that if the employer needed a new position in the
Student Services department, it should have posted it.
Starting with Article 1.2, the centerpiece of both sides’ argument, the question is: do the asserted
facts make out an arguable violation? Article 1.2 requires the employer to give preference to full-time
over part-time assignments, and to convert part-time to full-time assignments, where feasible, subject
to appropriate operational requirements. It places this explicitly in the context of a recognition that the
College retains the right to determine the number and composition of full-time, part-time and
otherwise excluded positions, and to determine the work assignments that are appropriate. However,
it is appropriate to emphasize that this contextual part of the Article is more pertinent to the
employer’s defence to the grievance, than the viability of the union’s case, which is what we are
dealing with here.
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In Seneca College decision, the Board found, as noted above, that the preliminary burden on the
union is “relatively light”, and the “onus of explanation” shifts fairly readily to the employer, once it is
established: that there is a continuing pattern of employing a number of part-timers; that those
employees are doing a coherent bundle of similar duties (something that if combined might amount to
a “job”; that they are working regular, noncontiguous hours; and that, on the surface at least (i.e.
arithmetically), those hours could be aggregated to a sum greater than 24, for one or more
individuals. Moreover, the panel found that the obligation was a continuing one, and not static.
Further, in terms of making out a prima facie case, the Board found that one could look at the factual
situation to infer whether the preference had been given to full-time assignments, that “the lack of
effort [to give preference to full-time or to convert part-time assignments to full-time] may be inferred
from the outcome”.
What was the outcome in the facts of Ms. Running’s case? From the agreed facts, we know that Ms.
Running was employed before the lay-off for 35 hours a week, with duties that were approximately
70% related to student recruitment and approximately 30% to student retention. The employer relies
heavily on the union’s agreement that the duties were “primarily assigned” to part-time and casual
employees, and the idea that one can infer from that statement that the number of hours would drop
below 24.5 because it is unlikely that less than half an hour a week went to the bargaining unit. I
agree that that is one possibility, but it is not a necessary inference from the agreed facts, as there
are other possibilities. 70% of the 35 hours is 24.5 hours, and there is no agreement that there was
less than 24.5 hours of work required in relation to recruitment, at the time of the lay-off. Given the
approximation, it also could have been somewhat more. Regardless, one starts with a number of
hours that is within the range of a full time position, over which the college has the power of
assignment, and the obligation to prefer full-time assignments. I note that there is no agreement or
information before me about how much work actually was assigned to part-time or casual employees
at the point of the grievor’s lay-off, and/or whether it was limited to the hours flowing from Ms.
Running’s former position. It could have been more than 24.5 hours as well, and may have been
added to other duties.
More importantly, the amount of hours has to be seen in light of the dual obligation, to prefer full-time,
and to convert part-time assignments. With a core of close to 24.5 hours left over in the recruitment
area, and the high probability that there was other part-time work available, there is enough raw
material to establish a sufficient starting point for a prima facie case, even if one only considers the
amount of hours previously assigned to Ms. Running for student recruitment. I note that, although
union counsel referred in argument to recruitment work being done by other bargaining unit members,
there was no agreed fact before me about how much of this work there was, or how it related to the
work formerly done by Ms. Running. Nor was there any agreed fact about whether such work was
already being done by part-time or casual employees.
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The amount of work available, just from Ms. Running’s assignments, at the point of her re-
assignment, was the 35 hours of retention work, and approximately 24.5 hours of recruitment work,
for a total of 59.5 hours of work to be assigned - numerically, easily enough for two full-time
assignments. I appreciate that the union did not ask for the work to be divided in that way in
argument, but we are discussing here whether there is any case for the employer to meet, and when
considering the employer’s arithmetic argument, it is necessary to consider if there are also other
potential arithmetic inferences from the available facts. In this context, it is also important that the
amounts agreed were approximate, and not exhaustive. Further, in general, in any job, the exact
amount of time spent on any particular area of focus may be difficult to pin down with any precision.
In respect of the informational basis on the issue of the actual amount of work which is the subject of
the grievance, employer counsel has analogized this preliminary motion to a motion for summary
judgment, and asserted that the union was obliged to put forward its “best case” in its particulars, and
agreed facts. A motion for summary judgment is a procedure used in the civil court system to weed
out cases which will not succeed, or are capable of disposition without a full trial. For a recent review
of this procedure in the Ontario courts by the Court of Appeal, see Combined Air Mechanical Services
Inc. v. Flesch, 2011 ONCA 764 (CanLII). Such motions are generally argued based on a significant
record composed of affidavits and/or transcripts from examinations of witnesses on their affidavits, or
from examinations for discovery. This provides considerable information, which, although normally
less than would be garnered from a full hearing or trial, is generally more extensive than what is
required in the grievance procedure, or in a response to a pre-hearing request for particulars.
Although arbitrators have the power by virtue of s. 14 (12) (a) and (b) of the Colleges Collective
Bargaining Act to order disclosure of documents, pre-hearing particulars, or further and better
particulars, when asked, there is generally no specific requirement that a union or grievor “plead” or
“lead” anything other than the grievance prior to the hearing, unless ordered or agreed. Here, there is
an agreed statement of facts, but no indication that there was any agreement that those facts would
include all the evidence, or the best evidence, or “trump”, as it was referred to in argument. And there
has been no request of me for an order concerning particulars. Obviously, if the sufficiency of the
case is being challenged, it will be prudent to advance enough to support a prima facie case, but this
does not have to be on the basis of the theory of the case preferred by one side. It can be any
arguable theory of the case that could lead to a finding of a breach of the collective agreement.
For the purposes of consideration of the amount of work available related to Ms. Running’s former
duties, there was a total of 59.5 hours of work available, made up of 24.5 hours recruitment and 35
hours retention work. These hours were assigned to employees. On its face, Article 1.2 applies to
assignments, such that it is certainly arguable for the union to claim that Article 1.2 was engaged, so
that the College was required to apply the required preference for full-time over part-time in making
that assignment. I am of the view that the numerical situation of almost 60 hours of work in a
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bargaining unit where only something over 24 hours is necessary for a full-time job is prima facie
proof of enough work for two full-time positions. The result of the assignment was, on the union’s
asserted facts, one full-time and a number of part-time assignments.
The employer says that the case should also fail on two other elements from the formulation in the
Seneca College decision: the lack of a continuing pattern of employing a number of part-timers
and that they are working regular, noncontiguous hours. The union’s response was, in essence,
that this was not a “conversion” grievance, i.e it is not a case of asking that longstanding part-
time work be converted to full-time, as it was in Seneca College. Rather, it is an attempt to prevent
the employer from moving work that was formerly done by a full-time member of the bargaining unit
outside of the bargaining unit. I agree that this is an important difference, and that the Seneca
College formulation has to be seen in the context that it was an answer to the very specific agreed
questions and facts before that panel.
It is clear that the “break-up” of a full-time position into part-time work would create a prima facie case
of a violation of Article 1.2. See for analogies, both within the Colleges, in the academic bargaining
unit: St. Lawrence College and OPSEU, a decision of a Board of Arbitration chaired by Arbitrator
Shime dated May 18, 2005 , and outside of the College sector: Maplewood Nursing Home and
London District Service Workers Union, Loc.220 (1989) 9 L.A.C. (4th) 115 (Hunter).
Although the individual grievor is still working full-time, the agreed facts do suggest that work that was
within the realm of the bargaining unit is no longer there, a situation that, for the purposes of whether
there is a prima facie case, raises the same concerns, even if it is not, by itself, a workload of 35
hours. I note that the collective agreement, in Article 6.1.1, provides for a variety of normal work
weeks over 35 hours per week, but that Article 6.1.3 articulates that it is not a guarantee of hours of
work per day or week. The fact that one full-time position was replaced by another for Ms. Running
does not deal with the fact that more work was assigned in the retention area, and does not mean
that the employer is relieved of its obligations flowing from Article 1.2 in assigning the recruitment
work that is still clearly required by the College, particularly where there is no agreement that there
was a reduction in recruitment work. From the union’s point of view it was just reorganized out of the
bargaining unit. The pattern, as union counsel also argued, and which I accept for the purposes of
this motion, is a long-standing one of full-time assignment of the recruitment work. There is also no
suggestion that the previous assignment of the work required simultaneous scheduling of portions of
the body of recruitment work, as in the earlier Sault College case cited above, so that the issue of
non-contiguous hours does not appear to arise from the facts of this matter.
In short, having carefully considered the material before me, I do not find sufficient reason to dismiss
the grievance for want of a prima facie case as to Article 1.2, which is the union’s theory of the case.
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In respect of the employer’s submission that Article 1.2 does not apply on lay-offs, this is a significant
issue, which was not fully argued. I do not find it appropriate to further comment on it at this juncture,
particularly in view of the few agreed facts about this aspect of the case.
Before leaving this matter, I offer the following in response to the employer’s request for a pragmatic
look at the opportunity to avoid a lengthy hearing. In this regard, I note that although I do not find it
appropriate to dismiss this grievance on the basis of the lack of a prima facie case, the considerable
jurisprudence about operational considerations, and the “standard of review” as dealt with by
Arbitrator MacDowell in Seneca College and the other cases cited therein, means that the existence
of a prima facie case by no means ensures success of the grievance, or the awarding of any
particular remedy such as a return of the grievor’s former combination of duties to her. The parties
are encouraged to have further discussions about the current situation and to attempt to resolve this
matter at this juncture. If that does not bear fruit, the renewed emphasis on mediation/arbitration in
the collective agreement provides an opportunity to consider other options for an expeditious hearing
on the merits. Questions arise as to whether at least some of the evidence can be introduced in more
efficient ways, by way of briefs, agreed schedules, “will-say’s” or other options counsel may agree on,
or may be directed, on request. A teleconference could be arranged to discuss possibilities in this
regard as well.
***
For the above reasons, the preliminary objection is dismissed. I remain seized of any remaining
issues in this matter. Counsel may request further hearing dates or a teleconference when so
advised.
Dated this 20th day of December, 2012
Kathleen G. O’Neil
___________________________________
Kathleen G. O’Neil, Arbitrator