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HomeMy WebLinkAboutMortazavi 15-07-17IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT BETWEEN: AND IN THE MATTER OF AN ARBITRATION CONESTOGA COLLEGE A , s (The "College") ONTARIO PUBLIC SERVICE EMPLOYES UNION, LOCAL 237 (The "Union") AND IN THE MATTER OF A PRELIMINARY AWARD CONCERNING THE GRIEVANCE OF HOUMAN MORTAZAVI APPEARANCES FOR THE COLLEGE Timothy Liznick Debra Marshall Amy Kendall David Smiderle Gary Hallam APPEARANCES FOR THE UNION Jesse Gutman Lana -Lee Hardacre Martin Hare Nathalie DeHaney-Stewart Counsel Executive Director, Human Resources Chair Business Chair Business Executive Director, Business & Hospitality Grievance Officer OPSEU OPSEU Grievance Officer A Hearing in this Matter was held on May 5, 2015 at Kitchener, Ontario 1 PRELIMINARY AWARD This Preliminary Award concerns two issues. The first is whether the grievor had the status to file a grievance, specifically whether he was employed as a partial load employee and therefore a member of the bargaining unit in the fall semester of 2014. Secondly, if the grievor is found to have the status to file a grievance, was the grievance filed in a timely manner. Many of the background facts are not in dispute. The bargaining unit as set out in the collective agreement and the Colleges Collective Bargaining Act does not include part- time employees who are defined as persons who teach six hours per week or less. Partial load employees are included in the bargaining unit and article 26.01 B of the collective agreement defines a partial load employee as "a teacher who teaches more than six and up to and including 12 hours per week on a regular basis. In the Employer's submission, during the sixteen week semester in the fall of 2014 the grievor had 8 weeks at 3 teaching hours, 2 weeks at 6 teaching hours and 6 weeks at 9 teaching hours. In its view, the grievor therefore had 10 weeks that were part-time hours and 6 weeks that were partial load hours and when looked at over the entire semester he was pari -time 62.5% of the time and partial load 37.5% of the time. On October 9, 2014 the grievor delivered a grievance letter to the College making allegations which the College summarized in correspondence to the Union as follows: E I . The Grievor complains that the College has failed to recognize his employment as partial -load every semester since 2013. 2. The Grievor alleges that his salary placement in Fall 2012 was incorrect and that he has, therefore, been underpaid ever since. 3. The Grievor has not received step increases in the 2013-2014 and 2014- 2015 academic years; 4. The Grievor alleges that in the summer of 2014, the College removed "two binding contracts" for the Fall 2014 semester. 5. The Grievor alleges that the College reduced his teaching hours for MGMT72095 from 60 to 45 hours. The Grievor began teaching that course at those hours on September 2, 2014. 6, The Grievor alleges that the course assignments given to him differ from those given to other faculty. The last assignments made to the Grievor commenced September 2, 2014; and 7. The Grievor claims that he was subject to differential treatment by his Supervisor, specifically related to ECON 1020 which he last taught in the winter 2013 term from January 7, 2013 to April 26, 2013. SUBMISSIONS OF THE COLLEGE The initial submission of the College was that the evidence did not indicate that the grievor was employed for more than six hours per week on a regular basis. In its view, the longstanding practice of the College for determining whether a Teacher is employed in partial -load hours "on a regular basis", is to determine whether a majority of the Teacher's hours in the semester meet the partial -load requirement, and in its view they did not as the grievor worked six hours per week or less more than fifty per cent of the weeks in the fall semester of 2014. The College also submitted that, in addition to looking at the number of hours worked, it was important to consider the intention of the parties, and in this case it was clear that 9 the grievor and the College signed part-time employment contracts for teaching in the fall of 2014, and it was only for a few weeks that the grievor taught more than six hours because the School of Business was delivering a compressed course which had a peak in the middle of the semester and in this regard reference was made to the decision in Fanshawe College of Applied Acis and Technology and OPSEU, Grievances of A. Schidowka 86054 and 86P35, 1987 Carswell ONT 5735, 5 C.L.A.S. 37 (H. D. Brown). SUBMISSIONS OF THE UNION The Union submitted that the status of the grievor should be determined on a month by month basis. The grievor filed his grievance in October, 2014 and during the months of September and October, 2014 he worked more than six hours per week and was therefore a partial load teacher at that time. In its view the words "on a regular basis" meant teaching hours that were contemplated and known. In this case the College scheduled the grievor to teach more than six hours per week for six consecutive weeks, and contrasted this situation with a teacher who taught more than six hours per week on a sporadic and not contemplated basis such as filling in for someone who is absent because of an illness or bereavement leave. The Union indicated that the parties are accustomed to dealing with matters on a monthly basis and reference was made to Article 26.06B which indicates that, with respect to the dental plan, a partial load employee becomes eligible on the "first of month following the completion of six calendar months". 0 DECISION It is clear that this Board of Arbitration only has the jurisdiction to consider this grievance if the grievor was a member of the bargaining unit at the time the grievance was filed. The bargaining unit is defined by the Colleges Collective Bargaining Act and is set out in article 1.01 of the collective agreement as follows: Article 1 Recognition 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers, counsellors and librarians, all as more particularly set out in Article 14, Salaries, except for those listed below: (i) Chairs, Department Heads and Directors, (ii) persons above the rank of Chair, Department Head or Director, (iii) persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, (iv) other persons excluded by the legislation, and (v) teachers, counsellors and librarians employed on a part-time or sessional basis. NOTE A: Part-time in this context shall include personas who teach six hours per week or less. NOTE B: Sessional in this context shall include persons who teach six hours per week or less. 5 For the grievor to be a member of the academic bargaining unit he would have to have been working more than six hours per week on a regular basis in the fall semester of 2014. In Algonquin College and Ontario Public Service Employee Union, Grievance of G. Clarke, unreported, April 26, 9988, (K.P. Swan), the grievor was employed as a partial load employee but for a one month period worked full-time hours and was claiming full time pay. The Arbitrator dismissed his claims for additional pay during the months when he had episodic and non-recurring assignments as they could not be characterized as work assignments "on a regular basis", and commented on page 13 as follows: When all of this experience is looked at in totality, it is obvious to us that the only period that raises any issue at all is from March 24 to April 24, 1986. This is a period of almost exactly one month, and during that month the grievor was assigned to teach at basically double his usual load. While such an assignment certainly raises questions about the grievor's entitlement to be treated as a full -load employee, once the reason for the assignment, an absence on sick leave, is considered, it will be obvious that the assignment was calculated to increase the grievor's hours for the duration of that sick leave, and not, in any reasonable meaning of the words, "on a regular basis". The Union's position is that, when determining whether an individual has been assigned a certain number of teaching hours on a regular basis, one should consider the matter on a monthly basis. If the assignment of more than six hours per week is episodic or unpredictable such as assignments caused by illnesses and other indeterminate absences, then perhaps one should not conclude that the assignment was made "on a regular basis". If however, the assignment is pre -scheduled, or made in advance, the College therefore knows that the Teacher will be teaching more than six hours per week, for at least six consecutive weeks, as was the case in this instance, then it should [:1 be concluded that the Teacher is properly characterized as a partial load employee and a proper member of the bargaining unit. From my view, this approach is problematic. It is unclear why the period of a month is chosen to measure regularity as opposed to a one week period or some other period. Secondly, the choice of a monthly period could result in a teacher being in or out of the bargaining unit at various times in the semester. As in this case, the grievor would be out of the bargaining unit and not covered by the terms of the collective agreement, for weeks or months when he teaches less than six hours per week, and would be in the bargaining unit and covered by the terms of the collective agreement, including the right to file grievances and the right to benefit coverage for the weeks or months when he is scheduled to work more than six hours per week. Secondly, this approach does not take into account the reasons for the work assignment of more than six hours per week, which in my view is a factor to be considered. Both the College and the grievor in this case understood, in the summer of 2014, that the grievor was being employed as a part-time employee and the contracts reflect this intention. While not necessarily determinative of the issue, the weeks during which the grievor worked more than six hours were to assist the School of Business to deliver a compressed course which had a peak in the middle of the semester and after the course was completed the grievor returned to working a schedule of six hours per week or less. It was never the intention of the College, nor in my view was it the understanding of the grievor, that he was being scheduled "on a regular basis" to work more than six hours per week. F M In these circumstances I have concluded that in the fall semester of 2014 the grievor was not a partial load employee and therefore was not a member of the bargaining unit, and was therefore not eligible to file a grievance under the provisions of the collective agreement. This Board of Arbitration does not have the jurisdiction to consider the matter. Given this finding, there is no need to address the submissions concerning the timeliness of the filing of the grievance. Dated at Maberly, Ontario this 17th day of July, 2015 DAM K.L. Starkman