HomeMy WebLinkAboutUnion 14-02-07IN THE MATTER OF AN ARBITRATION
between
HUMBER COLLEGE INSTITUTE OF TECHNOLOGY
& ADVANCED LEARNING
(“the Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 562
(ACADEMIC)
(“the Union”)
RE: ALLEGED VIOLATION OF ARTICLES 2 AND 27.11
CONCERNING PREFERENCE FOR FULL-TIME POSITIONS
IN THE SCHOOL OF
MEDIA STUDIES & INFORMATION TECHNOLOGY
(Grievance # 2013-0562-0005)
(INTERIM DECISION – SCOPE OF THE GRIEVANCE)
BOARD OF ARBITRATION:
PAMELA COOPER PICHER - CHAIR
ANN BURKE - COLLEGE NOMINEE
PAMELA MUNT-MADILL - UNION NOMINEE
APPEARANCES FOR THE COLLEGE:
William Hayter - Counsel
Christy Lihou - Manager, Human Resources
Christa Hinds - Sr. Human Resources Consultant
Basil Guinane - Associate Dean, North Campus,
School of Media Studies
APPEARANCES FOR THE UNION:
Tim Hannigan - Counsel
Audrey Taves - Chief Steward
Robert Mills - Secretary
A hearing in this matter was held in Toronto on February 4, 2014.
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INTERIM DECISION
The Union filed Grievance # 2013-0562-0005, dated March 11, 2013,
alleging that the College had violated articles 2 and 27.11 of the collective
agreement in the School of Media Studies by, without justification, staffing
positions with non-full-time employees. By way of remedy, the Union requests
that the College comply with articles 2 and 27.11 “by designating as full-time
regular bargaining unit positions all positions in the School of Media Studies that
have been staffed by non-full-time without adequate justification [and that such
full-time positions] be posted and filled immediately”. Additionally, the Union
seeks full compensation, plus interest, for all lost dues associated with the
positions.
As a preliminary matter, raised at the outset of the hearing, the parties
asked the Board to determine the appropriate scope of the Union’s Grievance
before turning to an adjudication of the merits of the matter.
The parties agree that central to a determination of the scope of the
Grievance is a Memorandum of Settlement entered into between the parties
dated May 23, 2012, which provides as follows:
MEMORANDUM OF SETTLEMENT
Between
Local 562, Ontario Public Service Union
Hereinafter referred to as “the Union”
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And
Humber College of Applied Arts and Technology
Hereinafter referred to as “the College”
The Union and the Grievor, OPSEU Local 562, agree to settle the
grievances dated March 27, 2012 in the School of Creative and
Performing Arts, The Business School, and the Student Services, School
of Liberal Arts & Sciences related to full-time faculty positions [in] these
areas, subject to the following conditions:
1. The College will post and endeavor to fill thirty-seven (37) full-time
positions for September, 2012 and complete by January, 2013 as
follows:
The Business School 9 (7 new, 2 replacements)
School of Social & Community Services 5 (4 new, 1 replacement)
School of Media Studies & Information
Technology 3 (2 new, 1 replacement)
School of Creative & Performing Arts 0
School of Applied Technology 3 (3 replacements)
School of Hospitality, Recreation & Tourism 5 (5 new)
Student Services 2 (2 new)
School of Liberal Arts & Sciences 10 (4 new including Jack
Najzer, 1 new January
2013, 6 replacements)
2. Any faculty leaving the college between May 16th and May 31st who are
not identified in the addendum are to be replaced for September, 2012.
3. Any faculty leaving the college between June 1, 2012 and June 30,
2012, who are not identified in the addendum are to be replaced by
January 2013.
4. The parties agree that no staffing grievance will be filed prior to March
1, 2013 in any School identified above. Other opportunities for full-time
positions will be reviewed as the needs arise.
5. The parties agree that this settlement constitutes full and final
resolution of all issues raised in the grievances, dated March 27, 2012
for the School of Creative & Performing Arts, The Business School,
Student Services and the School of Liberal Arts & Sciences.
Adjustments to this agreement could be made through CESC [College
Employment Stability Committee].
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6. Failing resolution at CESC, the Union and the College agree that any
difference arising from the implementation or failure to implement
these terms of settlement will be subject to the regular grievance
procedure.
7. The parties agree to these terms, as described above on a without
prejudice and without precedent basis.
Dated in Toronto this 23rd day of May, 2012
“Deb McCarthy” “Orville Getz”
___________________ ____________________
For the College For the Union
Deb McCarthy, Orville Getz, President
AVP Human Resources
Addendum to Memorandum of Settlement – May 16, 2012
The faculty who are being replaced are:
Business:
1. Dave McPherson
2. John Vermeer
Community & Social Services
1. Leo Smits
Media
1. Neil Fox
Applied Technology
1. Gene Rychlewski
2. Greg Howe
3. Mike Vanderveen
Liberal Arts & Sciences
1. Ian Baird
2. Jim Jackson
3. Stella Eyles
4. Lucy Valentino
5. Wasi Ahmad
6. Ausra Karka
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It is common ground that in filing the instant Grievance, the Union was not
in violation of the terms of the Memorandum of Settlement. Given that the
Grievance was dated March 11, 2013, its filing fell outside the prohibition against
the filing of a staffing grievance before March 1, 2013, as contained in paragraph
4 of the Memorandum of Settlement.
The preliminary dispute between the parties, however, focuses on the
time-frame in respect of which the Union, in a grievance filed on or after March 1,
2013, may contest the appropriateness of the College’s complement of full-time
positions. More precisely, the parties disagree on whether, through a grievance
filed on or after March 1, 2013, the Union may put in issue the complement of
full-time positions that existed in any of the Schools or areas identified in
paragraph 1 during the time-frame covered by the Memorandum of Settlement,
or prior to March 1, 2013.
The Union maintains that while paragraph 4 of the Memorandum of
Settlement precludes the Union from filing a staffing grievance prior to March 1,
2013, it does not preclude it, on or after March 1, 2013, from filing a grievance
alleging that, prior to March 1, 2013, the College was in violation of the collective
agreement through its failure, during that period, to give adequate preference to
full-time positions over non full-time positions. The Union asserts, in other words,
that in a grievance filed after March 1, 2013, such as the instant Grievance, the
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Union is entitled to assert that the College failed to give the appropriate
preference to full-time positions during the period between the March 28, 2012
(the date following the filing of the grievances resolved by the Memorandum of
Settlement) and March 1, 2013 (the expiration date of the prohibition against the
filing of a staffing grievance).
The Union contends that the only issues that the Memorandum of
Settlement fully and finally settled, as referred to in paragraph 5, were the
specific matters contained within the 4 grievances dated March 27, 2012,
referred to in the Preamble. The Union maintains that the agreement regarding
the filling of 37 full-time positions, new and replacement, referred to in paragraph
1 of the Memorandum of Settlement, was not intended by the parties to be a final
resolution of the appropriate apportionment of full-time/non full-time positions for
all the Schools and/or areas referred to in paragraph 1, up until March 1, 2013,
when the Memorandum of Settlement permitted the Union to once again file a
staffing grievance.
On this basis, the Union asserts that in its March 11, 2013 Grievance, it is
entitled to take issue with the complement of full-time positions that existed
between the filing of the March 27, 2012 grievances and the lifting of the ban
against the filing of a staffing grievance on March 1, 2013, although the Union
recognizes the inevitable impact of the 40-day time limit referred to in article
32.09 of the collective agreement for the filing of Union grievances.
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In contrast to the submissions of the Union, the College advances a wholly
different interpretation of the Memorandum of Settlement. The College argues
that not only was the Union prohibited from filing a staffing grievance before
March 1, 2013 but also it was barred from challenging the appropriateness of the
full-time staffing complement in any of the Schools or areas referred to in
paragraph 1 during the period covered by the Memorandum of Settlement,
through March 1, 2013. Accordingly, the College maintains that the scope of the
Union’s March 11, 2013 Grievance must be restricted, such that it is only
permitted to contest the appropriateness of the complement of full-time positions
in the School of Media Studies in the time-frame following March 1, 2013, when
the bar against the filing of a staffing grievance was lifted. The College
acknowledges that, theoretically, through the instant Grievance, the Union could
take issue with the full-time complement that existed between March 1st and
March 11th of 2013, although it maintains there would be no substantive basis for
so doing.
DECISION:
Having carefully reviewed the submissions of the parties, the Board is
satisfied that Memorandum of Settlement contains an agreement that goes
beyond the settlement of the March 27, 2012 grievances in the 4 Schools
identified in the Preamble to the Memorandum of Settlement. In addition to
providing a full and final settlement of the 4 named grievances, the parties
reached an agreement involving Schools and/or areas in respect of which
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grievances had not been filed, such as the School of Media Studies. More
specifically, the parties reached a prospective agreement regarding the full-time
complement in the 8 Schools listed in paragraph 1 for the fall and winter terms in
2012 and 2013, respectively.
Through paragraph 1 of the Memorandum of Settlement, the parties
agreed that the College would complete the filling of 37 full-time positions by
January of 2013. The precise allocation of the full-time positions, as spread over
the 8 Schools, was detailed in paragraph 1 and included the further designation
as to whether the full-time positions were going to be new positions (24 overall)
or replacement positions (13 overall). The Addendum to the Memorandum of
Settlement, dated May 16, 2012, specifically listed the 13 faculty who were going
to be replaced pursuant to paragraph 1.
Paragraphs 2 and 3 of the Memorandum of Settlement formed an
additional prospective agreement regarding additional replacements and
established two timelines for the replacement of faculty who would leave the
College, over and above the 13 faculty specifically referred to in paragraph 1 and
named in the Addendum. In paragraph 2, for example, the parties agreed that
any faculty leaving the College between May 16th and May 31st of 2012, who
were not identified in the Addendum, would be replaced for September 2012. In
paragraph 3, they further agreed that any such faculty leaving the College
between June 1st and June 30th of 2012 would be replaced by January 2013.
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It is in paragraphs 4, 5 and 6 of the Memorandum of Settlement that the
appropriate scope of the instant Grievance becomes fully apparent.
Notwithstanding that paragraph 4 set up a prohibition against the filing of a
staffing grievance before March 1, 2013, the further provisions of paragraph 4
and those in paragraphs 5 and 6 established procedures for how the parties
would address questions regarding opportunities for full-time postings that might
arise prior to the lifting of the ban against the filing of a staffing grievance on
March 1, 2013, as follows:
First, in paragraph 4, the parties agreed that, “Other opportunities for full-
time postings [would] be reviewed as the needs arise.” Accordingly, the
parties agreed that even though the Union would be precluded from filing
a staffing grievance before March 1, 2013, the Union, prior to March 1,
2013, could raise the question of “opportunities for full-time postings
[which would] be reviewed [by the parties] as the needs arise.”
Second, in paragraph 5, the parties established a further mechanism for
addressing alterations to the complement of full-time positions that they
had established through paragraphs 1 through 3 of the Memorandum of
Settlement. The parties provided that, “Adjustments to this agreement
could be made through CESC [College Employment Stability Committee].”
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Third, and finally, in paragraph 6, the parties set in place a procedure for
addressing a dispute concerning requested “adjustments to this
agreement” that were not resolved at the CESC. They stipulated that,
“Failing resolution at CESC, the Union and the College agree that any
difference arising from the implementation or failure to implement these
terms of settlement [would] be subject to the regular grievance procedure.”
It is undisputed that the Union did not seek to have the parties review
“[o]ther opportunites for full-time postings” pursuant to its entitlement to do so
under paragraph 4 of the Memorandum of Settlement. Nor did the Union,
pursuant to its entitlement under paragraph 5, seek to have “[a]djustments
[made] to this agreement … through CESC.” Accordingly, it never reached the
point in the agreed procedure, as set out in paragraph 6, where “[f]ailing
resolution at CESC … any difference arising from the implementation or failure to
implement these terms of settlement [would] be subject to the regular grievance
procedure.”
Given the terms of the Memorandum of Settlement, as detailed above, it is
clear to the Board that the parties’ agreement went well beyond the settlement of
the 4 grievances dated March 27, 2012 relating to 4 Schools itemized in the
Preamble to the Memorandum of Settlement. The Memorandum of Settlement, in
paragraph 1, further contains, for 8 listed Schools or areas, an agreed
complement of full-time positions for the upcoming fall 2012 and winter 2013
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terms, to be completed by January of 2013. Additionally, paragraphs 2 and 3
make the supplementary provision for the replacement of additional faculty who
might leave, beyond those identified in paragraph 1 and the related Addendum.
While the drafting of the Memorandum of Settlement could have been
clearer, the Board is satisfied, on a reading of the Memorandum of Settlement in
its entirety, that by including in the Memorandum of Settlement a prohibition
against the filing of a staffing grievance before March 1, 2013, the parties
intended that the Union would not raise, in a grievance filed on or after March 1,
2013, an issue regarding the appropriateness of the allocation of full-time
positions or an alleged violation of article 2 of the collective agreement in respect
of the period covered by the Memorandum of Settlement or up until March 1,
2013.
The Board concludes that the parties’ intention in this regard follows
plainly from the fact that the parties set up, within the Memorandum of
Settlement, a mechanism for addressing, during the period covered by the
Memorandum of Settlement, concerns regarding “[o]ther opportunities for full-
time postings”, which they agreed would be “reviewed as the needs arise.” The
terms of the Memorandum of Settlement make it clear that the parties intended,
for the duration of the Memorandum of Settlement, to have staffing disputes
resolved by discussion between the parties, failing which they could seek
“[a]djustments to [the] agreement … through CESC”, and “[f]ailing resolution at
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CESC, … any difference arising from the implementation or failure to implement
[the] terms of settlement [would] be subject to the regular grievance procedure.”
In the face of the various mechanisms the parties established within the
terms of the Memorandum of Settlement for addressing (1) changing
circumstances (the review of “[o]ther opportunities for full-time positions … as the
needs arise”), (2) requested “adjustments” to the Memorandum of Settlement
(which were to be made through the CESC), and (3) the possibility of the parties’
failure to reach agreement at the CESC (by, at that point, permitting access to
the regular grievance procedure), the Board is fully satisfied that the parties’
prohibition against the filing of a staffing grievance before March 1, 2013
precluded not only the actual physical filing of the grievance but also the raising
of any issue contesting the adequacy of the full-time complement during the
period prior to March 1, 2013.
Had the parties anticipated in the Memorandum of Settlement that once
the ban was lifted on filing a staffing grievance on March 1, 2013, the Union
would be able to contest the adequacy of the full-time complement during the
period covered by the Memorandum of Settlement, it is highly improbable that
they would have established within the Memorandum of Settlement a mechanism
for addressing opportunities for full-time postings that might arise and
adjustments to the agreement that could be sought during the time-frame
covered by the Memorandum of Settlement prior to March 1, 2013.
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Accordingly, for the reasons set out, the Board finds that in its Grievance
dated March 11, 2013 the Union is precluded from challenging the
appropriateness of the full-time complement of positions, in alleged violation of
articles 2 and 27.11 of the collective agreement, as it existed during the period
prior to March 1, 2013. We note, however, that if the Union raises an issue
regarding the appropriateness of the complement, as it existed following March
1, 2013, the Board’s determination is not intended to preclude the Union from
relying on evidence that may reach back before March 1, 2013.
The Board remains seized of this Grievance and, if requested, will
entertain submissions regarding the interpretation and application of this Interim
Decision as it relates to the continuation of the Union’s Grievance #2013-0562-
0005.
Dated in Ottawa this 7th day of February, 2014.
“Pamela Cooper Picher”
___________________________
Pamela Cooper Picher
Chair s.c.
I concur. “Ann Burke”
_____________________________
College Nominee
I concur. “Pamela Munt-Madill”
_____________________________
Union Nominee