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HomeMy WebLinkAboutEason/Turco 15-05-28I IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE OF APPLIED ARTS AND TECHNOLOGY ("The Employer") N Al ONTARIO PUBLIC SERVICE EMPLOYEES' UNION ("The Union") AND IN THE MATTER OF THE GRIEVANCES OF LYNN DEE EASON AND FRANK TURCO David K.L. Starkman APPEARANCES FOR THE COLLEGE Daniel Michaluk Janice Beatty Colin Kirkwood APPEARANCES FOR THE UNION Rebecca Liu Lynn Dee Eason Frank Turco Bob Alien Arbitrator Counsel Vice -President Corporate and Student Services Dean, Technology, Business and Natural Environment Counsel Grievor Grievor Local Union Vice -President A Hearing in this -matter was held on April 15, 2015 at Sault Ste. Marie, Ontario 2 AWARD On behalf of the grievors the Union alleges that the College has breached Article 8 of the collective agreement which provides: 8.01 It is agreed that up to a maximum of five persons per College be released from duty for sufficient time to engage in Arbitration Board Hearings or Provincial Union Committee Meetings for members thereof or Union conventions for elected delegates and alternates thereto (which may include seminars or conferences which will be considered by the College concerned on their individual merit(s)), provided such release, which shall not be unreasonably withheld, does not in the opinion of the College President interfere with the efficient operation of the College 8.02 The regular salary, pension contributions, sick leave entitlements, group insurance benefits, and other fringe benefits of employees released from duty under 8.01 shall continue to be paid by the College. The Union shall reimburse the College for the regular salary portion, or in the case of attendance of Union appointees, at meetings with management appointees of the Joint Educational Qualifications Subcommittee, Joint Insurance Committee, CAAT Pension Plan Committees, Employee/Employer Relations Committee, Joint Grievance Scheduling Committee or such other Joint Union Management Committees as the Union and Council may subsequently agree in writing will be similarly treated for 50% of the regular salary portion. The parties were able to agree on the following facts: 1. Mr. Turco has sat on the Joint Insurance Committee since December 2012. The JIC is a committee listed in Article 8.02. 2. Ms Eason has sat on the Joint Grievance Scheduling Committee since September 2014, The JGSC is a committee listed in 8.02. 3. The JIC and JGSC each meet one day a month in Toronto. Each grievor has spent approximately eight hours each month away from the College as a result of his or her membership. 3 4. The Union has reimbursed or plans to reimburse the College for 50% of the grievor's regular salary for these hours in accordance with Article 8.02. 5. Since 2014, there have been no scheduling conflicts between the grievors' teaching responsibilities with their JIC and JGSC responsibilities (as applicable). 6. The College does not include JIC'or JGSC time on the grievors' SWF's and does not reduce the grievors' assigned workload to account for the grievors' JIC and JGSC activity. SUBMISSIONS OF THE PARTIES On behalf of the Union it was submitted that article 8.02 required the College to reduce the workload of persons who sit on the Committees referred to therein. In its view, persons who sit on these Committees are not working on their own time, which is the reason the Union reimburses the College for 50% of their salary. To not recognize the work is to have the Union subsidize the College for work performed pursuant to the collective agreement. The Union urged me to interpret the words used in the context of the entire collective agreement and to give the words a broad and liberal interpretation and reference was made to the decisions in Clean Harbors Canada Inc. and Communications, Energy and Paperworkers Union of Canada, Local 914 (Letter of Understanding Grievance), (2012) 216 L.A.C. (0) 276 (P. Knopf), Camp Hill Medical Centre and N. S.N. U., (1994) 39 L.A.C. (0)169 (B,P. Archibald), Camp Hill Medical Centre and Nova Scotia Nurses' Union (Camp Hill Medical Centre Local), [1994] N.S.J. No. 399, Re Men's Clothing Manufactures Association of Ontario and Toronto Joint Board, Amalgamated Clothing & 4 Textile Workers Union (1977) 15 L.A.C. (2d) 968 (H.W. Arthurs), and Babcock and Treasury Board (Health and Welfare Canada), (1989) 5 L.A.C. (0) 15 (R. Young). On behalf of the College it was submitted that the College met its obligation when it arranged the teaching duties of the grievors so as not to conflict with their Committee work. In its view, work on the Committees is voluntary. The College did not assign the work, and the grievors cannot claim a remedy for doing work which they elected to do voluntarily and reference was made to the decisions in Durham College and OPSEU (Zweirs) (2014) 121 C.L.A.S. 77 (N. Jesin), Seneca College and OPSEU (Work Assignment), unreported, October, 2006, (R.H. McLaren), Fanshawe College and OPSEU (Lovelock) (1986) 5 C.L.A.S. 74 (O.B. Shime), and Humber College and Ontario Public Service Employees Union, unreported, January, 2004, (M.A. Nairn). DECISION In Sault College and OPSEU (Nielsen -Jones) (2014) 121 C.L.A.S. 137 (VII. Kaplan) the grievors were claiming that participation on two joint Union -College Committees should be recorded on each faculty member's SWF, in denying the grievance the Board noted at paragraph 16: 16 Both parties filed a number of authorities, and they have been carefully reviewed. These cases make it clear that only work assigned by a college appears on a SWF (other than through the application of Article 8.04E which is not relevant to the determination of the specific issue before me). The cases also make clear that when faculty volunteer for certain activities, for instance volunteering at an open house, participation as a 5 union representative through election to certain committees, or coaching for student success, or any of a number of other examples, that work does not appear on a SWF. Put another way, the only work that appears on a SWF is work that a college has assigned. Volunteer work on a joint committee where the individual has been appointed by the union to represent union interests is union work, not a complementary function, and it certainly has not been assigned or attributed by the College. Article 11.01 131 makes it clear that the work is assigned and attributed, not one or the other (and attribution, of course, has a specific meaning under Article 11.01 F'). In my view Articles 8.04 A, 8.04 B and 8.05 A are of particular significance. These articles provide as follows: 8.04 A The parties agree as to the desirability of a mutually acceptable basis for reduced teaching or work assignment of a full-time employee who has completed the probationary period for the purpose of assisting employees and the Union Local in the administration of this Agreement and the business directly pertinent thereto. The parties also agree that it is desirable that such basis be mutually resolved at the College level by the College and Union Local Committees in order to take into account variations of: (i) The philosophical desirability of any teaching or work assignment reduction having regard to the Local structure of its officers and their function; (ii) The distribution of employees at the various campuses concerned and the distances involved together with the other physical characteristics and organization of the College concerned. 8.04 B In recognition that resolution locally as referred to in 8.04 A may not be possible for a variety of reasons, the parties agree to the following basis for reduction in teaching or work assignments to facilitate assistance to employees and the Union Local in the administration of this Agreement and the business directly pertinent thereto: (i) In each College, there shall be a reduction of up to 30 teaching contact hours per week (as selected by the Union Local) that would otherwise have been assigned. For these hours the Union Local shall reimburse the College for 25% of the base salary portion of the first 15 hours. The Union Local shall reimburse the College for 50% of the base salary portion of the 0 next 15 hours. In the case of a Librarian or Counsellor, three hours of work or assignments shall be deemed equivalent to one teaching contact hour for the purpose of this Article only. For the purposes of workload calculation, each teaching contact hour shall be credited as 2.17 workload hours to be recorded on the Standard Workload form (SWF). (ii) In each College there shall be a further reduction of up to 35 teaching contact hours per week (as selected by the Union Local) that would otherwise have been assigned. For these hours the union Local shall reimburse the College for 100% of the base salary portion. In the case of a Librarian or Counsellor, three hours of work or assignment shall be deemed equivalent to one teaching contact hour for the purpose of this Article only. For the purposes of workload calculation, each teaching contact hour shall be credited as 2.17 workload hours to be recorded on the SWF. 8.05 A The Union Local President shall advise the College President by June 1 of each year of the employee(s) to have a reduced teaching or work assignment pursuant to the provisions of 8.04 and the College shall arrange the reductions effective for the academic year commencing September 1 subject to the availability of a suitable replacement or substitute for the employee(s) concerned and the efficient operation of the College. It is clear from the above provisions that the parties made detailed arrangements for workload reductions for employees who participate in the administration of the collective agreement with respect to Local issues, but made no such explicit provision with respect to persons who participate on the Committees set out in article 8,02. The Union would have such a provision read into article 8.02 and argues that the fact that the Union is reimbursing the College for 50% of the regular salary portion is an indication that the parties agreed that time spent on these Committees was time that would otherwise have been spent on regular teaching duties. In Fanshawe College of Applied Arts and Technology and The Ontario Public Service Employees' Union, Grievance of Mr. E. Ross Rachar, unreported, February 28, 1978, 7 (G.J. Brandt), the grievor was a full-time professor who sat on two Province Wide Committees, and was claiming either a workload reduction or compensation for having to perform additional work. The language in that collective agreement was similar to the language in this collective agreement insofar as the agreement provided for workload reductions for those who participated on Committees with respect to Local issues but did not provide for workload reductions for participation in Province Wide Committees. In dismissing the grievance the Board commented at pp. 10 --11 as follows: It is fair to conclude from this that, at least insofar as the question of a right to a reduced teaching load is concerned, no particular significance should be attached to the manner by which the College is reimbursed for lost services. The parties have expressly negotiated two types of leave for Union business and have provided that in each case the payment arrangements will be the same. However, the parties have also provided that only in respect of leaves under the provisions of Article 11. 03, will the affected employee be given a reduced teaching load. Given the identity between Article 11.02 and 11.04(b) one might have expected that, if it was the intent of the parties to treat both types of leave identically in terms of reduced teaching load as well, they would have said so. The fact of the matter is that they did not do so and, for this Board to read into Article 11.01 an arrangement similar to that contemplated under Article 11.03 would be to effect an amendment to the collective agreement. It would appear therefore that, in terms of the issue before us as to whether or not the grievor is entitled to a reduced teaching load when away on Union business; there is no particular significance to be drawn from the fact that the College receives some reimbursement from the Union in respect of that absence.... Similarly in this case, the collective agreement language clearly indicates that, with respect to persons who participate in Local Union Committees there will be a workload reduction and the Union will reimburse the College for certain portions of a participant's base salary. With respect to persons who participate in specified Provincial Committees there will be salary reimbursement based on a different calculation, but there is no 0 mention of any workload reduction. I do not know why the parties agreed to a salary reimbursement and why they set the amount at 50%, but reimbursement by the Union of a portion of a participant's regular salary does not change the fact that the parties agreed to a workload reduction with respect to persons sitting on Local Committees in Article 8.0413 but did not agree to a workload reduction for persons sitting on Province Wide Committees in Article 8.02. In these circumstances I have concluded that to find a workload reduction for participation in Provincial Committees would be to read language into the collective agreement and to give Article 8.02 an interpretation it cannot bear. For these reasons the grievances are denied. Dated at Maberly, Ontario this 281" day of May, 2015 Da4id K.L. Starkman