HomeMy WebLinkAboutNutley 94-02-07NUTLEY VS ST. LAWRENCE
93A318
IN THE MATTER OF AN ARBITRATION
BETWEEN
ST. LAWRENCE COLLEGE
(hereinafter referred to as "the College")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(FOR ACADEMIC EMPLOYEES)
(hereinafter referred to as "the Union")
Grievance of R. Nutley
BEFORE: M.G. Mitchnick Chairman
H.J. Cook Nominee for the College
T. Kearney Nominee for the Union
FOR THE S.C. Raymond Counsel
COLLEGE: L.J. Sawyer V.P. Human Resources
C. Bleakney Human Resources Assistant
FOR THE G. Leeb Counsel
UNION M.A. White Chief Steward Local 417
R. Nutley Grievor
Hearing held in Kingston on October 19th, 1993.
-2-
A W A R D
This matter involves the current employment status of Mr.Roy Nutley, and in particular
whether Mr. Nutley must be found, under Appendix VIII of the collective agreement, to have
completed the first year of his "probationary period" with the College. Appendix VIII provides:
APPENDIX VIII
SEASONAL EMPLOYEES
1 A sessional employee is defined as a full-time employee appointed on a sessional
basis for up to 12 full months of continuous or non-continuous accumulated employment
in a 24 calendar month period. Such sessional employee may be released upon two
weeks' written notice and shall resign by giving two weeks written notice.
2 In determining the employment and calendar periods under Appendix VIII, 1,
only the period after January 1, 1976 shall be considered and no prior employment or
calendar period shall be taken into account. Also, an employee's continuous service
acquired in accordance with the provisions of the previous Agreement dated September
17, 1975, as at August 31, 1976, for the period back to January 1, 1976, shall count as
continuous employment or months of non-continuous accumulated employment for the
purpose of such paragraph.
3 If a sessional employee is continued in employment for more than the period set
out in Appendix VIII, 1, such an employee shall be considered as having completed the
first year of the two year probationary period and thereafter covered by the other
provisions of the Agreement. The balance of such an employee's probationary period
shall be 12 full months of continuous or non-continuous accumulated employment during
the immediate following 24 calendar month period.
4 A person assigned to replace a full-time regular employee for up to 14 working
days for unplanned absences in any month shall not have such period(s) considered as
sessional employment for the purpose of the computation of the 12 months sessional
employment. During such periods such a person shall be paid as if partial-load and within
the range of partial-load hourly rates as set out in Article 14.
5 Other matters concerning the use of sessional appointments may be referred to the
E.E.R.C. which shall deal with these matters as priority items.
Mr. Nutley teaches primarily the Apprenticeship group, and began doing so under short-
term contract, initially for less than 12 hours a week, in April of 1991. In September of 1991, he
first went to what the parties regard as " sessional" status, i.e., a total weekly teaching load in
excess of 12 hours, and has continued from that point to teach courses in the Program under a
series of short-term contracts executed by the parties. Those contracts vary in their number of
weeks, and in their number of hours per week contracted for, and some of them are overlapping.
Because of the variations that the parties themselves saw in Mr. Nutley's status from September
1991 on, as between " sessional" versus "partial-load", they each have characterized his
relationship on a calendar-month basis, and with respect to the majority of the months so
analyzed, the two parties agree. The Union, however, counts all of those months in which they
see the grievor, on the basis of both the total and the spread of his hours, as essentially replacing
a "full-time" employee, while the College counts only those months in which the grievor's actual
"teaching" days totalled 15 or, more in the month. A summary of the grievor's teaching
assignments prepared by the College is appended as Schedule I to this award, with an asterisk
marking the 6 individual months in dispute, and an addition at the far right of the summary
showing the total number of hours taught in the months in dispute. ("Partial-load" hours become
"full-time" hours under the collective agreement when they exceed 12 hours per week on a
regular basis.) The months in dispute are further broken down by weeks by the Union in their
own exhibit, which is appended as Schedule II. Mr. Nutley testified that in addition to the actual
"teaching hours" contracted for, he spends an average additional day a week in the usual
preparation, marking and student consultation associated with teaching. Part of Mr. Nutley's
assignment from the College is to teach a lot of night courses, and the effect of that, for the
purposes here, is often to "stack" both day and night courses on the same day, so that both fall on
the same calendar day. From the Union's point of view, that is irrelevant; from the College's
point of view it becomes critical.
The Union's argument is essentially two-fold. Appendix VIII is all that applies here to
"sessional" employees, and the status of Mr. Nutley is to be gleaned from the terms of the
Appendix itself. Paragraph 3 of the Appendix has certain "penalties" designed to avoid "abuse"
of this latitude afforded the College to use non-bargaining-unit staff, and the meaning to be
attributed to the words of paragraph 1 should reflect the potential "abuse" that is of concern in
the Appendix; that is, that a college might attempt to make use of its " sessional" appointment
power to avoid the filling of a "full-time" bargaining-unit position. Thus, at least where a
sessional is teaching "full-time" hours (13 or more a week) throughout the month, on a relatively
even continuum from week-to-week, that ought to count as a "full month" of full-time
employment toward the sessional reaching the limit of 12 such months in a 24-month period.
Alternatively, if Article 27.02 B (formerly 8.01(b)) is to be treated as applying to sessionals who
are outside the agreement, then Article 11.01 K 2 of the collective agreement must equally be
treated as applying as well. Article 27.02 B reads:
27.02 B The probationary period shall also consist of 24 full months of non-continuous
employment (in periods of at least one full month each) in a 48 calendar month period.
For the purposes of 27.02 B, a calendar month in which the employee completes 15 or
more days worked shall be considered a "full month".
If an employee completes less than 15 days worked in each of the calendar months at the
start and end of the employee's period of employment and such days worked, when added
together, exceed 15 days worked, an additional full month shall be considered to be
completed.
Article 11.01 K 1 of the collective agreement provides:
11.01 K 1 Contract days (being days in which one or more teaching contact hours are
assigned) shall not exceed 180 contact days per academic year for a teacher in post-
secondary programs or 190 contract days per academic year for a teacher not in post-
secondary programs.
and Article 11.01 K 2 as a result goes on to stipulate:
11.01 K 2 Weekly contact hours assigned to a teacher by the College may be scheduled
into fewer than five contact days and such compressed schedule shall be deemed to be
five contact days.
The Union reads Article 27.02 B as equating days "worked" to the period under employment
contract itself, as, it submits, does Mohawk College, a decision of this same arbitrator issued
April 30, 1993, and notes that in any event Mr. Nutley on the evidence should be credited with at
least one additional day having been "worked" per week, if one is to take the narrower definition
of days "worked". The Union also compares the argument made by the College here (which, if
too many of the course hours happen to be scheduled on the same day, produces zero credit) with
the forms of credit otherwise accorded the less than full-time categories of part-time and partial-
load employees under Appendix IX and Article 26.04 B respectively. The Union submits,
finally, that if the purpose of a probationary period is evaluation, it makes no sense to have the
matter determined by how the College, as a matter of exercising its own discretion, happened to
schedule the sessional's courses, and that the College's approach is tailor-made for abuse, insofar
as it potentially would permit the College to maintain a sessional on "full-time" hours
indefinitely.
The College's response is essentially that Article 27.02 B does apply, that, as a formula
worked out by the parties themselves it must apply, and that in any event the fact that it applies
has already been decided for these parties by arbitrator Brent in St. Lawrence College
(Arsenault), a unanimous decision issued November 16, 1992. The College further cites that and
the Mohawk College decision as authority for the proposition that the 15 days "worked" in
Article 27.02 B must be days of actual teaching contact.
As noted in the Mohawk College case, the Arsenault case was distinct from that case (and the
present one) in that there was no contract of employment at all in existence for the period under
review, and the board had to attempt to reconstruct the nature of the relationship through an
analysis of the actual payment hours. Given the irregularity of employment there, the board did
so on a month-by-month basis, with the month of April 1979 being a critical area of dispute. The
board wrote, commencing at page 7:
There is no definition of a full-time employee in the collective agreement;
however, it is reasonable to conclude that a full-time employee is anyone who does not fit
the definition of either a part-time or a partial-load employee. Therefore, a full-time
employee is someone who does not teach six hours per week or less, and who does not
teach over six hours and up to thirteen hours per week on a regular basis. Accordingly,
while we can conclude that, when Article 8.01(a) speaks of the probationary period for
full-time employees, it refers to two years of continuous employment as a full-time
employee, we must look to the second paragraph of Article 8.01(b) to determine what a
month of such employment means. That paragraph says, in part, "a calendar month in
which the employee completes fifteen (15) or more days worked shall be considered a
'full month"'. Therefore, we would conclude that any month in which the grievor
completed fifteen or more days worked as a full-time employee should count as a month
of full-time employment for the purpose of her probationary period.
The College has interpreted this to mean any month in which the grievor worked
at a rate of more than thirteen hours per week for more than fifteen days. We believe that
that calculation is more restrictive than what is set out in the collective agreement. It is
our view that anyone who teaches more than six hours per week and who also cannot be
said to teach between seven and thirteen hours per week "on a regular basis" must be
considered to be a full-time teacher. It is the phrase "on a regular basis", which occurs in
Article 3.03(b), which must be given meaning. Exhibit 2 shows that during April, 1979,
the grievor taught for thirteen hours per week for ten teaching days and for twenty-two
hours per week for eleven teaching days. She worked twenty-one days that month. If
someone works roughly half the month for thirteen hours per week and the other half for
twenty-two hours per week, can it be said that she has worked between six and thirteen
hours on a regular basis that month? If her status must be determined for the month of
April, then we cannot conclude that the collective agreement could reasonably be
interpreted to call her a partial-load employee that month. Therefore, given the definition
of part-time, she must be considered to have been a full-time employee during April,
1979. Accordingly, since she was a full-time employee in April and worked more than
fifteen days that month, she should have received credit for the month of April, 1979.
For all of the reasons set out above, we conclude that the grievor should have
received credit for April, 1979 and that it follows that she was not released during her
probationary period.
In Mohawk College, the grievor had been initially employed on a "full-time" sessional
contract at 5 days per week, and the board noted that that had never changed, despite
some reduction in actual teaching assignments for a limited period towards the beginning,
to permit the grievor to spend more time on preparation. The board found the grievor to
have completed 12 months in 24 on the face of Appendix VIII itself, but also wrote at
page 12 of the award:
We are mindful of the College's argument that Article 8.01(b) [now 27.02 B] does not
strictly apply to sessionals, who, so long as they remain so, are not covered by the main
body of the collective agreement. However, if one were to ask what "rule of thumb" the
parties in dealing with thiS issue of part-month counting under Appendix III would most
likely contemplate as a reasonable method of doing so, it is hard to ignore as a guide what
is set out in Article 8.01 of this very collective agreement. Using the 8.01(b) method, the
only months that "count" are those with at least 15 days of employment (which we take to
be the meaning of days "completed" or "worked", as the logical compromise method of
"rounding" up or down on a typical calendar month of 30 days, bearing in mind also that
what is being talked about are points part way in a month where an employment period
either commenced or ceased). But at the same time, part months not otherwise counted at
the beginning and end of each period of employment are added together to see if
combined they equate to the mid- or cut-off point of 15 days that would be the equivalent
of at least one month.
Two points should be made about the Mohawk College award.Firstly, as noted, it involved a full-
time sessional employee whose employment history very much resembled, in the board's
findings, a "regular" full-time employee in the bargaining unit. In that situation the case for
adopting Article 8.01(b) as a reasonable "rule of thumb" was much more apparent than in the
constantly-fluctuating kind of relationship that the parties agree existed here (and which Ms.
Brent, in a similar situation pin Arsenault, found had to be characterized piecemeal, on a month-
by-month basis). The second point is that the board in Mohawk College, in trying to discern the
intent of 8.01(b) on its own, did measure days "worked" as the number of calendar-days in the
month over which the contract of employment extended. That was a conclusion that the majority
of the board came to in light of the fact that the chosen break-point was 15, which represents the
mid-point in a typical calendar month. The board at the same time was cogniscent of the fact that
the Community Colleges in their own "workload" provisions clearly recognize that there is more
"work" to teaching than simply showing up in the classroom. It is not clear that Ms. Brent saw it
very differently. As in other cases noted in Mohawk College, the application of Article U.01(b)
to sessionals (who are outside the collective agreement) appeared simply to have been assumed
in Arsenault by the parties - although by the time of its final submissions, we note that the
College suggested that it was being overly generous in having given Ms. Arsenault the benefit of
8.01(b), when she was not actually an employee covered by the collective agreement. And in
Mohawk College, as noted above, the employer took the position that, for the same reason,
Article 8.01(b) did not apply. In any event, Ms Brent's conclusions, based on the submissions
that were made to her, are set out as noted on page 8 of the award. The evidence she had before
her in "Exhibit 2" can more clearly be discerned from the written submissions of the Union,
which at page 7 note:
In January, 1979, the grievor received one contract for five hours per week of
English from January 2 until March 2, eight hours of English from January 9 to April 27
and from March 2 to June 22, five hours per week of another course. These courses
produced partial-load hours of less than thirteen hours per week until April.
The grievor received nine more hours of work from the 16th to the 30th of April,
putting her over thirteen hours per week for eleven days in April.
Thus it appears that what Ms. Brent in fact was referring to in the passages cited above was the
two periods of the month, April 1 to 15, and April 16 to 30, not actual "contact" days, and her 21
"teaching" days were simply the 21 potential "working days" in a month, based solely on the
exclusion of week-ends from the calendar. That is an interpretation not that distinct (apart from
cutting out week-ends) from that which the majority in Mohawk College took the parties to have
had in mind.
On the other hand, the anomalies in the approach adopted here by the College, looking
solely at "teaching contact" days, are apparent from the specific examples provided by this case
in itself. The month of November 1991, for example, "counts" according to the College, even
though the month is evenly split between "partial-load" and "full-time" (= " sessional")
assignments. But May of 1993 does not, even though the split in weeks is instead 3 to 1 in
favour of sessional assignments. And that is all because of the happenstance of the number of
days over which the College had spread the grievor's hours or courses in the two instances.
Similarly, April 1993, another relatively heavy month overall, fails to qualify, on the College's
approach, only because of Good Friday falling on one of the grievor's normal teaching days.
The better view, it seems to us, on facts like the present is to disregard Article 27.02 B
entirely, as being both legally inapplicable and of little use as a blueprint, and to attempt to give a
reasonable meaning to a "full month" of "full-time employment" in Appendix VIII. In our view,
the Union's approach does that, in looking to see whether the contract-employee on the whole
demonstrates full-time hours (more than 12 a week) throughout the month, on a relatively
consistent basis. That is the Union's claim, and is all in this case that we have to decide. The
result, in our view, is a less capricious one than adopting an interpretation that leaves it to the
happenstance of how the College chooses to spread a teacher's courses to determine the matter,
while at the same time maintaining consistency with the essential purpose of a "probationary
period", being to provide the employer an opportunity to assess the adequacy of a teacher
through his or her performance on the courses assigned. This approach urged by the Union, we
also note, is perhaps an even more generous one for the employer than that adopted in Arsenault,
which, given the absence of a definition for "full-time", placed the onus on the employer to
demonstrate that the individual was employed instead as a partial-load employee "on a regular
basis". Using that test of the Union on the facts here, we find the grievor to have been continued
in employment in excess of 12 full months in 24, and the grievor accordingly is to be considered
to have completed the first year of his probationary period.
While we normally refrain from doing so, we consider it appropriate here to conclude with
some comments in brief arising out of the Dissenting Opinion of board-member Cook. The
difference in contractual arrangements between the Mohawk College case and the present matter
has already been set out, but the essential point in Mohawk College in any event was that
whether one chose in making the count to apply Article 8.01(b) of the collective agreement or
not, the employer would lose, unless it could be found to have been unfairly prejudiced by its
reliance on the view of the steward. It also is apparent, as the College itself noted throughout the
hearing before us, that what the College relied upon in adopting its method of counting in the
present case, was its reading of the earlier case between these same parties decided by arbitrator
Brent ( Mohawk itself did not issue until April 30th, 1993, after the events giving rise to this
grievance.) But to avoid confusion, it is perhaps more important to point out that the College in
its argument may have misconstrued the conclusion of the board in Mohawk on the issue of
"teaching" versus "calendar" days, and that Mohawk adopted an approach under Article 8.01(b)
that was essentially contrary to the argument being advanced by the College before us here.
With respect to board-member Cook's final point of concern, while the Chair did engage in
dialogue with both counsel as their arguments proceeded, and in particular early on raised with
the parties the possible intersection of the issues in this case with those in the recently-decided
but not reported decision in Mohawk College, to be fair to Union counsel it should be observed
that at the end of the day the Union's grievance has been found to have merit on exactly the
grounds set out by the Union in its opening statement, as enunciated at pages 3 to 5 of this
award.
The board will remain seized of this matter in the event the parties encounter any
difficulties with respect to implementation or the impact of the board's a>ward as it affects Mr.
Nutley.
Dated at TORONTO this 7th day of February, 1994
M. G. Mitchnick
I Concur
T. Kearney
I Dissent
H. J. Cook
(see attached)
SCHEDULE I
SUMMARY - ROY NUTLEY WORK SCHEDULE
DECEMBER 1991:
1 week x 20 teaching contact hours (tch)
2 weeks x 10 tch
40 tch
MAY 1992:
1 week x 12 tch
1 week x 16 tch
2 weeks x 18 tch
64 tch
FEBRUARY 1993:
2 weeks x 12 tch
2 weeks x 20 tch
64 tch
APRIL 1993:
1 week x 11 tch
3 weeks x 14 tch
53 tch
MAY 1993:
1 week x 14 tch
1 week x 13 tch
1 week x 12 tch
1 week x 18 tch
57 tch
JUNE 1993:
4 weeks x 15 tch
60 tch
SCHEDULE II
ROY NUTLEY
September 1991 1 week part-time 15 teaching contact days
3 weeks sessional
October 1991 sessional 18
November 1991 2 weeks sessional 17
2 weeks partial load
December 1991 1 week sessional 13
2 weeks partial load
January 1992 sessional 16
February 1992 sessional 16
March 1992 2 weeks partial load 17
2 weeks sessional
April 1992 partial load 15
May 1992 1 week partial load 14
3 weeks sessional
June 1992 partial load 8
July 1992 partial load 2
August 1992 partial load 6
September 1992 partial load 13
October 1992 partial load 13
November 1992 partial load 8
December 1992 partial load 6
January 1993 partial load 11
February 1993 2 weeks partial load 14
2 weeks sessional
March 1993 sessional 17
April 1993 4 weeks sessional 13
1 week partial load-(good Friday)
May 1993 3 weeks sessional 13
1 week partial load
June 1993 sessional 13
July 1993 sessional 8
Dissent
I dissent from the decision of the majority of this Board for three reasons. The first reason
relates to the decision of the majority to disregard Article 27.02(B) of the Collective Agreement
as a method for interpreting the meaning of "full month" as it is used in Appendix VIII to the
Collective Agreement. The major issue in dispute in the hearing was the meaning of a "full
month" of "full time employment" as it is used in Appendix VIII. The words "full month" are
very clearly defined in Article 27.02(B), but this definition was completely disregarded by the
majority. This is of particular concern because the same Chairman in a decision dated April 30,
1993, (Mohawk College), when interpreting the same Collective Agreement indicated that it was
appropriate to employ the definition found in what was then Article 8.01(b) [now Article
27.02(B)] of this very Collective Agreement. In the Mohawk case, the College took the position
that it was improper for an arbitrator to refer to Article 8.01(b) of the Collective Agreement.
Nonetheless, this Chairman did refer to that section. He considered it an appropriate "rule of
thumb" to determine the definition of "full month". He allowed the grievance and determined
that the College had violated the Collective Agreement.
In the case before us the College took a position, given the view of the Chairman in his
previous award, that it was appropriate to look at Article 27.02(B) of the Collective Agreement
when attempting to interpret the meaning of "full month". In this case, the Chairman disregarded
his earlier decision entirely and stated that it was inappropriate to use Article 27.02(B) as a "rule
of thumb" when determining the meaning of "full month". As a result, the Union has another
successful grievance. In both cases the College lost at the arbitration hearing. In Mohawk
College, the College argued that Article 8.01(b) [now Article 27.02(B)] should not be used as a
method for interpretation but this Chairman found that it should so be used. In this case when the
College argued that Article 27.02(B) should be used as a guide to interpreting the meaning of
"full month", the arbitrator declined to do so. The Colleges are left in a position where it is
impossible to have any certainty as to how these provisions will be interpreted.
As a further matter, as I have reviewed Mohawk College in depth, I note that the Union
Steward, Mr. Nelson, called by the College in that case, indicated at the top of page 8 that May,
1989, would not count as a "full month" because the grievor would have only 14 teaching days in
that month. The Mohawk award indicates on page 4 that the grievor's teaching contract ran until
May 26, 1989. If the reasoning of the majority in the case before us had been applied in the
Mohawk case, then the Chairman should have found that he supported the position taken by the
College that the grievor must have 15 teaching days. May, 1989 would have counted as a "full
month" because there were 20 possible teaching days in that month prior to May 26, 1989. The
Board in this case takes the view that 15 days means 15 possible teaching days, not teaching days
actually worked. This further demonstrates the inconsistency in the approach of the majority. In
my view, the position of the College that only days worried should be considered as days for the
calculation of a "full month" is more in keeping with the intent of the parties and I would have so
found.
The second reason for my dissent is based upon the dec ision in St. Lawrence College
(Arseneault). On page 7, arbitrator Brent states " Therefore we would conclude that any month in
which the grievor completed fifteen or more days worked as a full time employee should count
as a month of full time employment for the purpose of her probationary employment." This
clearly recognizes that 15 days or more of work is one of the requirements to be counted toward
the total number. The decision of the majority in this case appears to contradict the decision in
the Arseneault case.
The third basis for dissent relates to the conduct of the Chairman at the hearing. The
decision of the majority is not based on arguments that were raised by the employee's counsel,
but by the Chairman. These were not the arguments put forth on behalf of the Union and were
only raised by Union counsel, if at all, after the Chairman had raised them. I find this particularly
troubling. The parties should be left to present their own cases in the manner that they deem
appropriate. The Board should listen and judge, not present arguments.
It is for all of the above reasons that I dissent and would have dismissed the grievance .
December 17 1993
H.J. Cook