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HomeMy WebLinkAboutUnion 94-04-12IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (the "Union") AND – - - HUMBER COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the "College") AND IN THE MATTER OF A UNION GRIEVANCE DATED MARCH 17, 1993 (OPSEU FILE NO. 93B831) BOARD OF ARBITRATION Robert D. Howe, Chair Sherril Murray, Union Nominee Ross W. Pirrie, College Nominee APPEARANCES For the Union Mary Mackinnon, Counsel Maureen Wall For the College Dale Hewat, Counsel Nancy Hood Toby Fletcher Dave Haisell Hearings in the above matter were held on February 4 and March 3, 4, 12, and 19, 1994. AWARD The grievance which has been referred to this Board of Arbitration (the "Board") for determination in these proceedings alleges a contravention of Article 2 of the (September 1, 1991 to August 31, 1994) Collective Agreement by the College in its Business Division (the "Division") during the Winter and Fall semesters of 1992 and the Winter semester of 1993 (which, for ease of reference, will be referred to in this Award as Winter '92, Fall '92, and Winter '93). In particular, the Union relies upon the following parts of that Article: Article 2 STAFFING 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load teaching positions subject to such operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. 2.03 A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. 2.03 C If the College continues a full-time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. The relief requested in the grievance is:.rr1 Humber College will comply with the cited article by designating as full time regular bargaining unit positions all positions in the Business Division which have been staffed by sessional appointments or by partial load appointments without adequate justification for the semesters Winter '92, Fall '92 and Winter '93. Such positions will be posted and filled immediately. The parties agree that the Board has been duly constituted, and that it has jurisdiction to hear and determine the grievance. Seven persons were called as witnesses during the five days devoted to the hearing of this matter. In addition to their testimony, the Board has before it forty-five exhibits which were entered during the course of the proceedings. In making the findings and reaching the conclusions set forth is this award, the Board has duly considered all of that oral and documentary evidence, as well as the submissions of counsel. The Board has also assessed what is most probable in the circumstances of the case, and considered the inferences which may reasonably be drawn from the totality of the evidence. The gist of the Union's grievance is that the College has failed to give preference to the designation of full-time positions as regular teaching positions, rather than partial-load and sessional teaching positions, in its Business Division at its Northern Campus. Extensive evidence was adduced before the Board concerning the use which was made of partial-load and sessional teaching positions during the period from Winter '92 to Winter '93 in the Division's Legal Assistant, Management Studies, Marketing, Computer Information Systems, and Office Administration program areas. Evidence was also admitted regarding the Division's use of such positions during subsequent semesters, and the actual and planned hiring of new full-time teachers in the Division, as the Board was satisfied that such evidence was of arguable relevance to the issue of what remedial relief would be appropriate in the event that the grievance succeeded. It is clear from the totality of the evidence that the Division relied quite heavily upon partial-load and sessional teaching positions in the delivery of courses in its Legal Assistant, Management Studies, Marketing, Computer Information Systems, and Office Administration program areas during the three semesters covered by the grievance. During the Winter '93 semester, for example, the College employed a total of 61 partial-load and sessional teachers, and only 57 full-time faculty members, in those program areas. That ratio of 61:57 (or approximately 1:1) stands in marked contrast to the College-wide ratio of 223:625 (or approximately 2:5). Although that substantial deviation from the College-wide ratio does not, by itself, establish a contravention of Article 2, it does underline the need to carefully examine the extensive use which the College has been making of partial-load and sessional positions in those program areas. We do not pr opose to reproduce in this Award the voluminous and highly detailed evidence which was adduced before us during the course of these proceedings, nor do we propose to deal with that evidence on a course by course or program by program basis. Rather, having duly considered all of that evidence, we propose to deal with the grievance on a more global basis, and to thereby provide the parties with some general guidance concerning the interpretation and application of the pertinent provisions of Article 2. The rationale provided by the College for its use of many of the sessional and partial-load positions in the Division was "the need for special qualifications". We are satisfied that this rationale was appropriately relied upon by the College in some instances. For example, Keith Hebblewhite was quite properly brought in on a partial-load basis to teach Starting A New Business (and Marketing) on the basis of the special qualifications which he possesses by virtue of his experience as an entrepreneur who has started a number of new businesses. The same is true of a number of other individuals who were brought in to teach in the Division on a partial-load or sessional basis, including Ruby Maine-Gambhir, whose special expertise in pensions and benefits was utilized teaching Pension Benefits on a partial-load basis, and Thom Lamb, an insurance claims adjuster who was brought in on a similar basis to teach Insurance Claims and Insurance Law in the Legal Assistant Program. However, it is also clear from the totality of the evidence that the Division has relied upon the rationale of "the need for special qualifications" in a number of instances where the sessional and partial-load teachers brought in on the basis of that rationale do not have "special qualifications" within the meaning properly attributed to that phrase in the context of Article 2. It is obvious that anyone qualified to teach a course at the College must have expertise in the subject matter of the course(s) which s/he is to teach. Giving the phrase "special qualifications" an interpretation so expansive as to bring within its ambit everyone having expertise of that type would enable to College to use sessional and partial- load positions to provide most if not all of its courses, and would be utterly inconsistent with the thrust of Articles 2.02 and 2.03 A. Thus, we are satisfied that the proper construction of that phrase in the context of those provisions requires that it be interpreted as referring to qualifications which are "special" in the sense that they are not possessed by persons whom the College would be in a position to hire as full-time teachers, but rather are only possessed by persons who for business, lifestyle, or other personal reasons are unwilling or unable to accept a full-time teaching position at the College. The Division's undue reliance upon the "special qualifications" rationale is particularly evident in its Legal Assistant program. We recognize that the use of a number of partial-load and sessional teaching positions in that program can be justified on the basis of other operational requirements, such as the need for "market acceptability of the [program] to employers, students, and the community", and ongoing uncertainties concerning future enrolment in the program due to the lack of demand for program graduates and the possibility that the program may be eliminated or substantially changed in the next few years. However, neither those nor any of the other rationales available to the College under Article 2 justify the inordinate extent to which partial-load and sessional teaching positions were used in that program during the period covered by the grievance. Some of the Division's use of partial-load and sessional teaching positions in other programs can also be justified on the basis of enrolment patterns and uncertainties concerning future enrolment expectations. Full-time post secondary enrolment in the Division (at the Northern Campus) increased by 13.4% (from 2842 to 3223) between September of 1991 and September of 1992. That substantial increase resulted primarily from recessionary economic conditions, and has not been duplicated in succeeding years. Audited enrolment totals for the Business Division (i.e., enrolments converted to standard sixteen week equivalents, with visa students omitted) increased by only 1% (from 5996 to 6059) between 1992-93 and 1993-94, and are projected to increase by less than 1% (from 6059 to 6116) between 1993-94 and 1994-95. Thus, the Division's operational requirements resulting from those " enrolment patterns and expectations" justified the use of a number of the impugned partial-load and sessional teaching positions. In this regard, we are of the view that the College complies with both the letter and spirit of Article 2 when, during periods of fluctuating and uncertain future enrolment, it uses partial-load and sessional teaching positions to cover enrolment increases, in order to avoid hiring new full-time teachers to cover those increases on a short-term basis, and then having to lay them off during a subsequent academic year if the enrolment increases prove to be short-lived. However, if those increases in enrolment become relatively permanent, the College cannot legitimately continue to justify using partial-load or sessional teaching positions to cover them in subsequent academic years on the basis of " enrolment patterns and expectations", as this would be inconsistent with the requirements of Article 2. It is quite clear from the totality of the evidence, and in pa rticular from the testimony of Richard Hook, the College's Vice-President of Instruction, that financial considerations have played a substantial role in the College's heavy reliance upon partial- load and sessional teaching positions in its Business Division. Using such positions is considerably less costly for the College than employing additional full-time professors. Indeed, during the course of argument, College counsel submitted that implementation of the remedy requested by the Union would cost the College in excess of $500,000 per year. In support of her contention that the College is entitled to rely upon financial considerations as a justification for using partial-load and sessional teaching positions, College counsel argued that financial considerations are an "operational requirement" within the meaning of Articles 2.02 and 2.03 A. She also suggested that those provisions are discretionary. Union counsel, on the other hand, submitted that the provisions are not discretionary, and further submitted that the College cannot legitimately rely upon financial considerations as a justification for using partial-load and sessional teaching positions rather than full-time positions. In support of the latter submission, she initially argued that the only operational requirements which the College is entitled to rely upon are those listed in Articles 2.02 and 2.03 A. However, during her reply argument she submitted that even if the College is entitled to rely upon "operational requirements" other than those specifically mentioned in those Articles, it is not entitled to take into account financial considerations because the nexus between staffing and financial considerations is dealt with comprehensively in other parts of the Collective Agreement. Both Articles 2.02 and 2.03 A require the College to give preference to the designation of full-time positions as regular teaching positions rather than (in the case of Article 2.02) partial-load teaching positions or (in the case of Article 2.03 A) sessional teaching positions. Neither of those provisions is couched in discretionary terms. However, the College's mandatory obligation under each of those provisions is expressly made "subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community." (Article 2.03 A also refers to "enrolment patterns and expectations".) It is evident from th e wording of both provisions that the lists of "operational requirements" contained in them are not meant to be exhaustive. If that had been the negotiators' intention, they could easily have used language such as "subject to the following operational requirements...", instead of "subject to such operational requirements as...". The use of the latter phraseology indicates that the items listed in those provisions are not intended to be all-encompassing, but rather to be examples of what constitute "operational requirements". However, those examples do provide some guidance regarding the proper interpretation of the phrase "operational requirements", as they are illustrative of the type of considerations which the College may legitimately take into account in determining whether a departure is warranted from the general requirement of giving preference to the designation of full-time positions as regular teaching positions. The examples listed in Article 2.02 all pertain to the quality and effectiveness of College programs, rather than to fiscal matters such as the cost of providing the programs. (With the possible exception of "enrolment patterns and expectations", the same is true of Article 2.03 A.) The existence of that qualitative "common thread" militates against interpreting "operational requirements" to include financial matters. (This interpretative approach involves the application of an approach somewhat analogous to what has sometimes been referred to by means of the maxim " noscitur a sociis" in areas of the law concerned with the construction of statutes, contracts, and other legal instruments. That maxim (which means "it is known from its associates") is a legal interpretative doctrine which recognizes that general words associated with specific words often take colour from the specific words, so as to restrict the general words to a sense analogous to the less general words with which they are associated.) In addition to the foregoing, a number of other factors also militate against adopting the interpretation of "operational requirements" urged upon us by College counsel. As noted by Union counsel during the course of her submissions, the nexus between staffing and financial considerations is dealt with comprehensively in other parts of the Collective Agreement, such as Article 27 (JOB SECURITY), Article 28 (EMPLOYMENT STABILITY), and Article 29 (EXTRAORDINARY FINANCIAL EXIGENCY). The inclusion of those specific, detailed provisions in the Collective Agreement renders it unlikely that even though no mention is made of financial considerations in Article 2, the negotiating parties nevertheless intended the provisions of that Article to be construed as also dealing with the connection between staffing and financial considerations. Since financial matters are almost invariably of very great importance to parties negotiating collective agreements, one would reasonably expect that if financial considerations were intended to form part of the "operational requirements" exception to the general rule specified in Article 2.02 and 2.03 A, the parties would have specifically referred to it in their list of examples, particularly where the College's ability to rely upon financial considerations in applying those provisions could well give rise to an exception of such magnitude as to virtually eliminate the general rule. For the foregoing reasons, the Board, having regard to all of the evidence and the submissions of the parties, finds and hereby declares that the College has contravened Articles 2.02 and 2.03 A of the Collective Agreement by failing, during the period covered by the grievance, to give preference to the designation of full-time positions as regular rather than partial-load or sessional teaching positions, to the extent required by those provisions. In determining the appropriate remedial response to the College's contraventions of the Collective Agreement, we have duly considered all of the circumstances, including the extent to which the College's use of partial-load and sessional teaching positions has already been modified through the hiring of new full-time employees, including those hired pursuant to the settlement of an earlier grievance (filed by the Union on November 29, 1991, and resolved by a Memorandum of Settlement dated October 13, 1992). We have also considered the fact that the College was entitled under Articles 2.02 and 2.03 A to utilize a number of the partial-load and sessional teaching positions which it used in delivering courses in its Business Division during the three semesters covered by the grievance. Having regard to all of the circumstances, the Board hereby orders the College to increase its Business Division's complement of full-time regular teaching positions by a minimum of three additional positions. Those three positions are to be posted by November 1, 1994, and are to be filled by the beginning of the Fall Semester of 1995, unless otherwise agreed by the parties. The Board will remain seised of this matter for the purpose of dealing with any difficulties which may arise regarding the implementation of the Board's order. DATED at Toronto, Ontario this 12th day of April, 1994. ______________________________ Robert D. Howe Chair I concur. "Sherril Murray" Sherril Murray Union Nominee I concur. "Ross W. Pirrie" Ross W. Pirrie College Nominee