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HomeMy WebLinkAboutUnion 05-06-21 IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE AND - O.P.S.E.U. (UNION GRIEVANCE - RECOGNITION) 441501 ACADEMIC Before: Susan Tacon, Sole Arbitrator Appearances: For the Union: Gavin Leeb, Counsel Tom Fernie, Chief Steward Wayne Wilson, Steward Sophie Beare, Steward For the Employer: Jock Climie, Counsel Diane McCutcheon, Manager, Employee Services Katherine Fuller, Labour Relations Officer Linda Rees, Director, School of Part-time Studies & Language Institute Bernice Klassen, Coordinator, ESL THIS MATTER WAS HEARD IN OTTAWA ON THE FOLLOWING DATES: JANUARY 31, MAY 5, JUNE 2 AND 8, 2005 DECISION This arbitration concerns a policy grievance in which the union claims that the College has contravened the collective agreement in not designating a member of the bargaining unit to fill the position of coordinator in the ESL program during the sabbatical leave of the professor who had previously fulfilled those duties. The union seeks a declaration that the College designate exclusively members of the bargaining unit as coordinators. The College denies that there has been a violation of the collective agreement in its appointment of Jim Comell as coordinator or, indeed, in the use of part-timers to perform coordinator work. It was understood that the instant grievance did not deal with the Continuing Education area. There was no objection to my jurisdiction to hear and determine the matter. The parties reached agreement on many of the facts relevant to this grievance. In addition, some oral testimony was called. The factual findings, beyond those agreed between the parties, are grounded in my assessment of the testimony, according to the usual criteria going to credibility, including what is reasonably probable in the circumstances. That said, little of the evidence was in dispute. I do comment on Jim Cornell's testimony infra, for reasons which are set out therein. For ease of exposition, certain terms should be clarified at this point. The bargaining unit in question is the "full-time" academic unit which includes teachers, librarians and counsellors. "Full-time" and "permanent" are terms used interchange, ably to denote those in the bargaining unit. Those excluded from that unit are stipulated in Article 1.01; that clause is later set out in full. Persons "other than full-timers" are referred to herein as "part-time", for our purposes. Other terms are noted in this decision, as appropriate. It is useful to next recount the formal Agreed Statement of Fact. 1. The ESL program is currently in the School of Part-Time Studies. At the time of the grievance it was in the School of Academic Advancement and Languages. 2. The ESL program teaches English as a second language to landed immigrants, new Canadian citizens and to international students. 3. ESL is made up of three separate programs: (i) Tuition Short Program - 12 week program made up of four courses (ii) Canadian Program - 8 week program made up of four courses (iii) International Program - 8 week program made up of five courses. 4. Maureen Keon was the Chair in the School of Academic Advancement and Languages at all operative times. However, Ms. Keon retired from the College in Spring 2005. 5. In and around September 1999, Bernice Klassen took over the duties of coordinating the ESL program. Ms. Keon appointed Ms. Klassen to this position after the previous coordinator resigned her position. Ms. Keon sought volunteers from the full-time faculty and Ms. Klassen volunteered. Ms. Klassen is a member of the academic bargaining unit. Since Ms. Klassen has been coordinating ESL she has not done any teaching in the classroom. 6. Ms. Klassen was given 30 hours of release time to perform her coordinating duties. Complementary functions and committee work made up the balance of Ms. Klassen's full-time hours (44 hours a week). 7. In the Fall 2003 Ms. Klassen put in a request to take a sabbatical commencing in the Fall 2003. Her sabbatical was approved in early 2003. 8. In or about April 2003, Ms. Keon called a meeting with her program faculty and announced that Ms. Klassen was taking a sabbatical and asked if anyone would be willing to take on her coordinating duties for one year. She gave the staff' a two week period to come forward if interested. 9. When no one volunteered Ms. Keon spoke to some of her full-time staff for recommendations as to which of the part-time staff might be suitable for the role. A part- timer by the name of Sheila Morrison was put forward as a candidate. 10. Ms. Keon approached Ms. Morrison with the opportunity and she accepted. Ms. Keon called a staff meeting and announced that Ms. Morrison would be assuming the coordinating function. None of the faculty expressed any concern over this appointment. 11. Ms. Klassen departed on her sabbatical in July 2003 and Ms. Morrison took over. However, in August 2003 Ms. Morrison called Ms. Keon and informed her that she was finding the coordinating duties too difficult and wished to step down. 12. Ms. Keon asked Ms. Morrison to remain on the job until a replacement could be found and she agreed. 13. Ms. Keon approached a sessional teacher, Jim Cornell, to see if he wished to take over the coordinating role. He agreed to do so. 14. Mr. Cornell took over from Ms. Morrison later in August 2003. He remained in the position until August 2004 at which point Ms. Klassen returned from her sabbatical and resumed some of the coordinating duties. 15. During his one year as a coordinator, Mr. Cornell did not perform any teaching functions. He was paid for 25 hours a week to coordinate the three ESL programs at a rate of $30 per hour. 16. Mr. Comell's duties as a coordinator included the following: Setting up testing dates. - Overseeing the updating of the curriculum - Recommending part-time teachers to teach various courses - Academic and personal counseling - Identify requirements for room bookings Liaising with financial aid on behalf of students Attending meetings at the College, sometimes on behalf of the Chair Responsibility over the Language Lab. The parties also agreed to several additional facts. Klassen performed thirty hours of coordinating per week, which included other duties and responsibilities not assigned to Cornell. Accordingly, Cornell's coordinating assignment was only twenty-five hours per week. In the Fall 2004 term, Cathy Collyer was a partial-load teacher who was also assigned coordinating duties. Her remuneration resulted from two separate authorizations, namely, for part-time coordinating duties and for some teaching contact hours. The parties agreed to the facts regarding Collyer to avoid oral testimony, while disagreeing with respect to their relevance. The Collyer assignments arose subsequent to the grievance and, in my view, are not relevant to the issues before me and need not be addressed further. Jim Cornell testified on behalf of the union. He outlined his teaching background; his resume was entered into evidence. There was no issue as to his suitability for the coordinator position. The union's objection rested solely on the fact that Cornell was not a member of the bargaining unit. Cornell confirmed the Agreed Facts relating to his duties and the sequence of events culminating in his contract for twenty-five hours per week as the coordinator in the ESL program. Cornell also recounted his initial 4 conversation with Keon and his other responsibilities at the College at the time of the coordinator appointment. Further, he outlined his duties as coordinator in more detail, including the hours involved. Employer counsel noted his objection for the record to the relevance of Cornell's testimony which went beyond the Agreed Facts, since the grievance did not seek personal relief for Comell and, as well, Cornell has subsequently filed an individual grievance. I am satisfied that it would be inappropriate for me to make findings of fact in respect of Cornell's testimony, apart from his confirmation of matters addressed in the Agreed Facts. The issue before me is solely the claim by the union that the collective agreement requires that coordinator's duties be assigned exclusively to members of the bargaining unit. There is no dispute that Cornell was not a bargaining unit member at the time of his assignment as coordinator. As noted, Cornell has filed an individual grievance. His broader testimony before me is both irrelevant to the instant grievance and relevant to his individual grievance. For me to make findings of fact in such circumstances would be gratuitous and not of assistance in the adjudication of this grievance. It is better left to that other proceeding to hear such testimony and for that arbitrator to reach factual findings in that context. Called to give evidence on behalf of the employer were Katherine Fuller and Diane McCutcheon. Their testimony is regarded as credible and, indeed, was not seriously challenged on cross-examination. That evidence is next summarized. Fuller has held the position of labour relations officer for three years. She described the data maintained in the Human Resources Information System ("HRIS") as including all employment related data other than that relating to full-time faculty. That is, HRIS includes temporary payroll data for other than full-time faculty. From the HRIS data bank, Fuller prepared a listing of part-time coordinators who had replaced full-time faculty (i.e., bargaining unit members). Such data is identifiable from the "object" codes. That document identifies, amongst other things, the relevant department and the full-time faculty member being replaced by the part-time coordinator. The data run from 1996, the point the data bank was initiated in its current form, to date. In cross-examination, Fuller agreed that she had not personally verified that all of the information in the data bank was correct. McCutcheon, for the past three years, has been manager of employee services within the Human Resources department. Previously, she held the position now occupied by Fuller. In that earlier role, from 1994 to 1998, she liaised with departmental managers and officers regarding the input of authorization data into the data bank. Her evidence corroborated that of Fuller regarding the data maintained in HRIS. Further, McCutcheon testified that the information in the data bank is shared with the union. Article 27.12 of the collective agreement stipulates that certain information must be forwarded to the union and, as well, the union was provided with details regarding persons other than full- time faculty who performed coordinator duties. According to McCutcheon, data is forwarded to the union as follows: Fall Term - first week in September for unverified SWF data and, for verified data, approximately November 30th; Winter Term - first week in January for unverified SWF data and, for verified data, approximately March Both; Spring Term - there is no requirement to supply unverified SWF data and, for verified data, approximately July 30th. SWF, the acronym for Standard Workload Form, deals with the work assignments of full-time faculty and is not relevant to the instant grievance. What is relevant is McCutcheon's testimony that, together with the SWF data, the union is supplied with the temporary payroll data which includes details regarding other than full-time faculty who perform coordinator's duties. That data identifies, through the object codes, that the individual was a coordinator and his/her status as other than full- time. The union also receives the key and object codes to read the data. The union receives the data electronically and, as well, in hard copy. McCutcheon stated that the document produced for this hearing of the part-time coordinators replacing full- time faculty could be generated directly by the union, given the data it receives. McCutcheon testified that, prior to the instant grievance, the union has never challenged the use of other than full-time faculty to hold a coordinator appointment, although the data supplied by the College has been utilized to file other grievances. The union official 6 receiving the data was identified as Doug Brandy, Local President. No one testified on behalf of the union regarding the data, its receipt, accuracy or interpretation. McCutcheon also addressed the definition of full-time faculty who were members of the bargaining unit but did not perform teaching duties. Specifically, counsellors and librarians in permanent positions are included in the unit and work thirty-six and one- quarter hours per week. Counsellors and librarians who work up to thirty-four hours per week are considered "part-time" and excluded from the unit. Those working thirty-five hours per week, or over, but not holding permanent positions are designated as "sessional". This policy was implemented by the College in 1997, as advised by the (then-named) Council of Regents and is included in the Temporary Payroll Manual, as well as posted on the web-site. McCutcheon stated that the union has never objected to or grieved this practice. Every October, a staffing survey is completed which includes the number of: professors, librarians and counsellors (i.e., those in the bargaining unit); part-time, partial load and sessional teachers; part-time and sessional counsellors and librarians. For the non-bargaining unit librarians and counsellors, the number of hours is specified. All of this information is reviewed with the union, specifically the Local President, prior to submission to the (then-named) Council of Regents. In cross-examination, McCutcheon confirmed that the object code would identify those coordinators replacing full-time faculty and that the codes and the key are provided to the union. She agreed that the staffing survey would not identify names of individuals. However, the data comprised two sections: one for counsellors and librarians in the bargaining unit and a separate section for other than full-time. McCutcheon affirmed her awareness of a decision by Arbitrator Knopf wherein one of the issues was the combining of teaching contact hours with coordinator duties to constitute a full-time position. That decision was the subject of submissions and is addressed infra. McCutcheon also agreed that, since the instant grievance, there have been two or three other grievances filed challenging coordinator work assigned to non-bargaining unit persons. Apparently, one was withdrawn and two are being scheduled for arbitration. In my view, the fact that other grievances, filed subsequent to the instant grievance, have raised the issue before me is not relevant to my determinations in this matter. Also the subject of submissions and commented upon in my analysis is the absence of testimony from any union official regarding the information provided by the College. In these circumstances, I am satisfied that the testimony of McCutcheon and Fuller in that respect is unchallenged and must be accepted as factually accurate. SUBMISSIONS The submissions of counsel are next set out in highly abbreviated form. Union counsel reviewed the evidence and case law in support of several assertions. First, counsel contended that Comell worked full-time hours on the basis of the Ontario Labour Relations Board test, in respect of the Labour Relations Act, that part-time comprised twenty-four hours per week or less. Counsel argued, as well, that the collective agreement implicitly mandated that the coordinator role be restricted to bargaining unit members: article 14.03 A 3. Teaching responsibility could be reduced to zero, as for Klassen. without affecting her status as full-time. The Knopf award, supra, it was argued, established that coordinator duties could be combined with teaching contact hours and~ thus, constituted further support for the proposition that coordinator functions must be exclusively assigned within the bargaining unit. Counsel submitted that the decisions ~n Canadore College, supra, and Niagara College, supra, likewise supported that argument. Other cases regarding implied restrictions were canvassed. Counsel argued that article 14.03 A 3 permitted the College to assign coordinator duties without the faculty member's consent, as a last resort, failing volunteers. The jurisprudence regarding past practice as an aid in interpretation was reviewed. It was contended that the collective agreement was not ambiguous and, hence, recourse to past practice evidence was not permissible. Further, counsel suggested that it was essential to demonstrate that the union had knowledge of the past practice in order for that to be used in resolving an ambiguity, and the College had not established such knowledge. Likewise, past practice could not create an estoppel in the instant grievance. The College bore the onus of proving that the union was aware of the past practice and aware that it constituted a violation of the collective agreement: there was no evidence the union had ever received the data in question. Moreover, the element of detrimental reliance was not made out. Indeed, given that bargaining was conducted centrally, counsel submitted that there could be no detrimental reliance at the College level. It was argued that the College bore the onus of demonstrating that there were exceptional circumstances warranting the appointment of a coordinator from outside the bargaining unit. In that regard, counsel also challenged the search for volunteers as inadequate. In summary, counsel asked that the grievance be upheld and a declaration issued. Cases cited: Board of Education for the Borough of Scarborough, [1980] O.L.R.B. Rep. 1713 (Adams); Algonquin College, unreported, August 3, 2001, referred to as the "Knopf award"; Canadore College, November 26, 1998 (Swan); Niagara College, December 1991 (Simmons); Crown in Right of Ontario (Ministry of Health and Long-Term Care), February 20, 2004, referred to as the "Fisher award"; Crown in Right of Ontario (Ministry of Community and Social Services), November 5,2001, referred to as "Pilon"; Irwin Toy (1982), 6 L.A.C. (3d) 328 (Burkett); Canadian National Railway Co. (Telecommunications Dept.) (1975), 8 L.A.C. (2d) 256 (H.D. Brown); Eastern Bakeries Ltd. (1989), 9 L.A.C. (4th) 366 (Graser); Wilson's Truck Lines Ltd. (1999), 80 L.A.C. (4th) 1 (Verity); Dominion Colour Corp. (1997), 64 L.A.C. (4th) 366 (O'Neil); Georgian College (1997), 59 L.A.C. (4th) 129 (Schiff); Redpath Sugars (1998),'73 L.A.C. (4th) 504 (Barrett); International Nickel Co. of Canada Ltd. (1975), 9 L.A.C. (2d) 173 (Gorsky); Uniroyal Ltd. (1972), 24 L.A.C. 408 (Palmer); Canada Forgings Inc. (1999), 84 L.A.C. (4th) 309 (Levinson); Loeb I.G.A. Southgate (1990), 12 L.A.C. (4th) 392 (Fraser); Spar Aerospace Ltd. (1994), 40 L.A.C. (4th) 215 (H.D. Brown); Ontario Human Rights Commission et al. and Simpsons-Sears Ltd. (1985), 23 D.L.R. (4th) 321 (S.C.C.). Employer counsel contended that coordinator duties could not be regarded as exclusively bargaining unit work absent express language to that effect or an implied restriction grounded in evidence that such work was normally and traditionally performed within the bargaining unit to the exclusion of others. Counsel rejected the assertion that article 14.03 A 3, dealing with coordinator's allowances, or other language referring to "academic leadership", constituted express language regarding the scope of the bargaining unit, particularly given the wording of the recognition clause (article 1) and article 2 and the exclusion of certain teachers from the bargaining unit. If teaching was not exclusively bargaining unit work, coordinator work could not be. Coordinators were not positions or classifications under the collective agreement but a bundle of duties which may be performed by bargaining unit members and part-timers and, in some situations, by management and support staff. With respect to "implied restrictions", counsel submitted that the uncontroverted evidence established that coordinator positions had been held by persons outside the bargaining unit for years. The union's analysis of the Knopf award was disputed. As well, there was no evidence of any erosion of the bargaining unit. In determining the intention of the parties with respect to the exclusivity or otherwise of coordinator duties, there should be regard to the agreement as a whole. In that context, the union's interpretation should not be accepted. Counsel sought to distinguish the other cases relied on by the union as irrelevant or as not standing for the propositions cited. It was argued that union counsel's contention that the College could force a bargaining unit member to perform coordinator duties flew in the face of the clear language of article 14.03 A 3. Further, counsel disputed the suggestion that the search for volunteers within the department was deficient. With respect to onus, counsel emphasized that it was the union who bore the burden of establishing exclusivity of the coordinator work; there was no basis for placing the onus on the College to demonstrate grounds for an exception, absent exclusivity as a general matter. The language in article 2 was cited as an example of the collective agreement placing the onus on the College to demonstrate an operational requirement for an exception. That was not comparable to the instant case. In the alternative, if the collective agreement was ambiguous, first there should be regard to the collective agreement as a whole. Part-time teachers were defined as six teaching contact hours or less. There was no definition of coordinators. It was, thus, appropriate 10 to look at part-time counsellors and librarians for guidance in determining what the appropriate level of work hours was in respect of coordinators. Counsel argued the evidence demonstrated that up to thirty-four hours per week was the operative definition for such positions and, therefore, a coordinator role involving twenty-five hours per week clearly should be viewed as part-time. Recourse to the Labour Relations Act was inappropriate since the Colleges were governed by their own statute, the Colleges Collective Bargaining Act. In the further alternative, if there was an ambiguity, past practice could be relied upon as an aid to interpretation and supported the College's position. Counsel disagreed that there was no evidence the union was unaware of numerous instances wherein coordinator duties were assigned to part-timers. The data was regularly forwarded to the union; no union official testified that such data was not received or understood. The union was a sophisticated organization which bargained for the receipt of such data. Indeed, the data had been used to launch grievances regarding other issues. Moreover, in this instance, the use of part-time coordinators was patent. There was a specific key code for such appointments; the union was given those codes. The coordinators would have to interact with bargaining unit members in carrying out their coordinating duties: it was not possible for this to occur "under the radar", in the phrasing of some of the cases. Counsel contended that the past practice likewise grounded an estoppel. The representation was the union's silence over the years and the detrimental reliance was o self-evident given the number of appointments of part-time coordinators for which costs the College would be liable. The ruling in this case would apply to all Colleges and there was detrimental reliance across the system in the loss of an opportunity to bargain the issue. In summary, counsel sought the dismissal of the grievance. Cases refen'ed to: Algonquin College, June 15, 2004, referred to as the "Starkman award"; St. Lawrence College, June 26, 1995, (MacDowell); J.S. Jones Timber Ltd. 11 (2000), 93 L.A.C. (4th) 72 (Ready); Canadore College, supra; Niagara College, supra; George Brown College, December 22, 1994, (P. Picher); Selkirk College (2002), 106 L.A.C. (4th) 289 (Chertkow); Insurance Corp. of British Columbia (2002), 106 L.A.C. (4th) 97 (Hall); Cambrian College, February 27, 1996, (M. Picher). Counsel also cited excerpts from the Colleges Collective Bargaining Act, R.S.O. 19990, Chap. C. 15 and Brown & Beatty, Canadian Labour Arbitration, 2004. In reply, union counsel reiterated that there was no evidence the union was aware of the past practice of appointing coordinators from outside the bargaining unit. While part- time teachers were defined in terms of a number of teaching contact hours, there was no comparable definition for hours of other work performed. In counsel's view, coordinator duties must be regarded as teaching work. Counsel also sought to distinguish cases relied on by the College. Finally, the Knopf award constituted notice to the College that the union believed that coordinator duties were bargaining unit work. DECISION It is first important to note that the union did not seek any relief beyond the declaration that coordinating duties be performed exclusively by bargaining unit members. That is the phrasing used in the grievance form. No relief was sought specific to Cornell. This assurance resulted in the employer's not pursuing a preliminary objection rejecting any expansion of the grievance to include a personal remedy for Cornell. There was no suggestion that this clarification impacted on Cornell's right to file an individual grievance or the College's right to respond to such grievance. As mentioned earlier, such an individual grievance has been filed by Cornell. That filing grounded my decision not to recount his evidence regarding the duties and responsibilities as carried out by him. For the purposes of this grievance, the agreed facts are sufficient, together with my findings with respect to the testimony of the two witnesses for the College. Before commencing my analysis, it is first useful to set out the relevant articles from the collective agreement. 12 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 persons who teach six hours per week or less. NOTE B: Sessional in this context shall mean an appointment of not more than 12 months duration in any 24 month period. 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 program 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 ... 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 B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum 12 months sessional employment in a 24 month period. 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 13 the Bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. Article 6 - Management Functions 6.01 It is the exclusive function of the Colleges to: (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. Article 14 - Salaries Guidelines Allowances - Professors 14.03 A 3 Coordinator Allowance - Coordinators are teachers who in addition to their teaching responsibilities are required to provide academic leadership in the coordination of courses and/or programs. Coordinators report to the academic manager who assigns their specific duties. It is understood that coordinators do not have responsibility for the disciplining of teachers in the bargaining unit. It is not the intention of the College to require employees to accept the designation of coordinator against their wishes. Those employees who are designated as coordinators will receive an 'allowance equal to one or two steps on the appropriate salary schedule. Such allowance will be in addition to the individual's annual base salary. It is also helpful to note at this juncture the characterization of the academic staff bargaining unit in the Colleges Collective Bargainin~ Act, the statute governing the Colleges. Schedule 1 The academic staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers, counsellors of librarians but does not include, 14 (i) chairs (ii) department heads (iii) directors, (iv) persons above the rank of chair, department head or director, (v) other persons employed in a managerial or confidential capacity, (vi) teachers who teach for six hours or less per week, (vii) counsellors and librarians employed on a part-time basis, (viii) teachers, counsellors or librarians who are appointed for one or more sessions and who are employed for not more than twelve months in any twenty-four month period, (ix) a person who is a member of the architectural, dental, engineering, legal or medical profession, entitled to practise in Ontario and employed in a professional capacity, or (x) a person engaged and employed outside Ontario. The cases cited by counsel have been reviewed but are addressed only to the extent necessary. It is appropriate to comment generally that caution is necessary in extracting passages from cases without having careful regard to the collective agreement and factual context which provided the framework for the awards. The issue before me is whether, as the union asserts, the work of coordinator must be exclusively assigned to members of the bargaining unit. To answer that question, I must discern the intention of the parties from their mutual bargain - the collective agreement. Aids to interpretation are relevant in that exercise in specific circumstances. Union counsel submitted that the College bore the onus in this case of establishing an exception to the assignment of coordinator work to persons outside the bargaining unit. Before proceeding further, some initial comments with respect to the question of onus are warranted. The union bears the ultimate burden of demonstrating a contravention of the collective agreement in the designation of Cornell as coordinator in the ESL program. That onus does not change. What has been described as a "secondary onus" or a "shifting of the onus" does happen in specific circumstances. For example, where there is an all-employee recognition clause with certain exceptions and specified exclusions, if the union proves that the individuals in dispute are employees, it falls to the employer to convince the adjudicator that those persons come within the recognized exclusions: Spar Aerospace, supra. Similarly, if the collective agreement creates exceptions to the 15 obligation to pay reporting pay, the employer assumes the onus of proving the circumstances fall within those exceptions: Canada Forgings, supra. If what is at issue is a new classification, the union has the burden of demonstrating that classification is encompassed within the bargaining unit. Conversely, if an existing classification is simply altered or modified, the employer must prove the changes warrant an exclusion from the unit: Loeb I.G.A., supra. Failure to adduce evidence will not discharge an onus: Simpsons-Sears, supra. A final example is recounted in the next excerpt from the decision in International Nickel, supra, at p. 176: "Furthermore, as was stated in the Law of Evidence in Civil Cases, supra, at p. 400, concerning the effect of special knowledge on the secondary burden of proof: 'Where the facts lie peculiarly within the knowledge of the opposite party, very little affirmative evidence on the part of the party having the ultimate burden will shift the secondary burden... Particular or special knowledge on the part of the opposite party does not relieve the party having the ultimate burden of calling any evidence; it merely lightens the burden.'" The application of the foregoing principles to the instant case is somewhat complex. The union bears the ultimate burden of establishing the exclusivity of coordinator work as within the bargaining unit. The College asserts a long-standing past practice of appointing coordinators from outside the bargaining unit. That proposition must be proved and, for reasons outlined in more detail later, I conclude that such onus has been satisfied. In that regard, it must be noted that the union, when faced with the College's evidence with respect to past practice, called no evidence to contradict the oral testimony or documentary evidence submitted. There is no compelling basis on which to discount the College's evidence on that point. Parenthetically, I also note that, where the parties intended to create exceptions to the use of full-time positions, they did so clearly. In articles 2.02 and 2.03, the College is to give preference to full-time positions unless certain operational requirements warrant otherwise. The onus to come within the specified exceptions falls on the College. There is nothing remotely comparable to such provisions in respect of the use of part-timers as coordinators. 16 I next proceed to the interpretation of the collective agreement, as negotiated by the parties. As noted in Wilson's Truck Lines, supra, "The task of the arbitrator is to interpret and apply the collective agreement in accordance with the language chosen by the parties themselves. The basic rule of interpretation is that clear words of a collective agreement are to be given their ordinary and plain meaning. Arbitrator Palmer makes that point in his text.., in which he quotes from Re U.A.W, Loc. 458 and Massey-Harris Co. (1953), 4 L.A.C. 159 (Gale) at p. 1580: '[W]e must ascertain the meaning of what is written into [a] clause and to give effect to the intention of the signatories to the agreement as so expressed. If, on its face, the clause is logical and unambiguous, we are required to apply its language in the apparent sense in which it is used, notwithstanding that the result may be obnoxious to one side or the other. In these circumstances it would be wrong for us to guess that some effect other than that indicated by the language therein contained was contemplated or to add words to accomplish a different result.' [atpp. 15-6] The starting point must be the recognition clause. Article 1 describes the bargaining unit as "all academic employees engaged as teachers, counsellors and librarians" with specified exclusions. Chairs, Department Heads and Directors and those above those ranks are outside the bargaining unit; this exclusion approximates the typical "managerial" category. Likewise the exception of those in the support staff bargaining unit is not unusual. Article 1.01 (iv) does not include in the bargaining unit "other persons excluded by the legislation". The statute in question is the Colleges Collective 'Bargaining Act; the relevant section is set out above. One sub-section refers to certain professions where those persons are entitled to practice in Ontario and are employed in a professional capacity and persons engaged and employed outside Ontario. This subsection does not come into play in this instance. The remaining exclusions from article 1.01 are cast, in the collective agreement, in somewhat different terms than the statute but may be said to cover the same categories. Specifically, article 1.01 (v) excludes "teachers, counsellors and librarians employed on a part-time or sessional basis". The collective agreement expressly notes that "part-time refers to persons who teach six hours per week or less" and "sessional is an appointment of not more than 12 months duration in any 24 month period". 17 One submission of union counsel is usefully dealt with at this time. "Part-time" is not defined in the collective agreement except by reference to teaching hours as "six hours per week or less". There is no reference to part-time in terms of coordinator work. Counsel urged the acceptance of the practice developed under the Labour Relations Act by the Ontario Labour Relations Board regarding the categorization of "part-time" employment as not more than twenty-four hours per week: Board of Education for the Borough of Scarborough, supra. With respect, that argument is not compelling. The bargaining unit herein is governed by the Colleges Collective Bargaining Act. That Act, in respect of the support staff bargaining unit, adopts what may be regarded as the traditional part-time description noted in the Scarborough case, supra. Given that the statute, and the collective agreement, did not see fit to use similar language in respect of the academic bargaining unit, I am not persuaded that the Scarborough analysis should be given any weight in the instant grievance. The decision in George Brown College, supra, speaks to this point, albeit in the context of part-time counsellors and where the workload in question was twenty-one hours per week. Thus, the arbitration panel in George Brown College, supra, was not required to finally determine the issue. In the situation before me, Cornell was given a coordinator assignment of twenty-five hours per week. Nonetheless, I regard the reasoning in George Brown, supra, as useful in this case in its focus on the Colleaes Collective Bargaining Act as the governing statute and the failure of the Act to replicate the traditional test of "part-time" in connection with the academic bargaining unit while adopting that standard with respect to the supp6rt staff unit. While "part-time" is not defined except in terms of teaching hours, as noted, the George Brown case, supra, rejected the use of that standard in connection with part-time counsellors. I am not persuaded that the absence of a definition of"part-time" with reference to coordinators leads to a conclusion that coordinators cannot be part-time. The collective agreement is merely silent on the point, that is, the number of hours per week that cannot be exceeded to be a "part-time" coordinator. The parties are free to negotiate such a definition but have not done so. Employer counsel urged me to adopt the standard of "up to thirty-four hours per week" which is applied to part-time librarians and counsellors. There was evidence before me, which I accept as credible and which was not 18 contradicted by evidence from the union, of such a standard. I need not go that far in the instant case. It is sufficient for me to be satisfied that the assignment given Cornell of twenty-five hours per week of coordinator work is appropriately categorized as "part- time". There is nothing in the collective agreement to suggest that such a level of coordinator duties constitutes a full-time workload for teachers. In fact, the Agreed Facts are to the contrary. Klassen's full-time hours are stipulated as forty-four per week, albeit comprised of various duties and responsibilities of which coordinating forms a part. Whether the appropriate standard for "part-time coordinators", in the absence of a definition in the collective agreement, should reflect the test used for part-time counsellors and librarians or should reflect the work week of full-time teachers is best left for another case where it is necessary to determine that question. Article 1.01 does not refer to coordinators. Nor are coordinators defined in the job classification sections of the collective agreement. There are detailed classification plans for professors, counsellors, librarians and instructors, as well as detailed classification definitions for those positions. Coordinators are mentioned in article 14.03 A 3. Article 14 itself is headed "Salaries". There are provisions regarding initial placement on, and progression through, the grids for professors, counsellors, librarians and instructors and, further, general provisions (14.03 A 7 and 8, and 14.04 A) which are not here relevant. Article 14.03 A 3 falls under the subheadings of"Guidelines" and "Allowances- Professors. Other provisions encompassed in this section deal with Senior College Master Allowance, Recognition Allowance and certain qualifications which entitled employees to progress to the maximum step on the salary schedule. This placement of the language dealing with coordinators is of import in understanding the parties' intention with respect to bargaining unit work. Article 14.03 A is itself couched within a confined framework. Coordinators are "teachers who in addition to their teaching responsibilities are required to provide academic leadership in the coordination of courses and/or programs." They report to the academic manager who assigns their specific duties. They receive an allowance equal to one or two steps on the appropriate salary schedule in addition to their annual base salary. They do not have 19 responsibility for the disciplining of teachers in the bargaining unit. Finally, it is not the intention of the Colleges to require employees to accept the designation of coordinator against their wishes. I return to this last point later in the decision. It is apparent that the parties did not regard "coordinator" as a classification defined in the collective agreement and expressly included in the scope clause. Moreover, the bargaining unit does not include all teachers. Apart from chairs, department heads, directors and those above those ranks who may well teach, those teaching on a part-time or sessional basis, as those are defined in the collective agreement, are also excluded. Simply put, teaching itself is not within the exclusive purview of the bargaining unit. In these circumstances, it cannot be said that the collective agreement expressly restricts the work of coordinators to bargaining unit members. Union counsel did not seriously contend otherwise. However, he countered that the jurisprudence supported an implied restriction of coordinator duties as bargaining unit work: see, the Fisher award, supra; Pilon, supra; Irwin Toy, supra; J.S. Jones Timber, supra. It is to that notion, that of an implied restriction, that I next turn. In that regard, I acknowledge the concept of implied restriction is but one instance wherein an arbitrator may discern the intention of the parties by looking at the collective agreement as a whole and the interplay of the various provisions. A useful exposition of the concept is found in J.S. Jones Timber, supra, in the following excerpt. "At law, it remains open for the parties to negotiate into their Collective Agreement, express language conferring upon the Union exclusive jurisdiction over specified work. In the absence of such an express work jurisdiction provision, arbitrators will imply the existence of certain restrictions of management's freedom to have non-bargaining unit members perform work. The concept of 'bargaining unit work' encompasses work which normally and traditionally has been performed by persons within the bargaining unit to the exclusion of persons outside the unit." [at pp. 89-90] 20 Another exposition of this principle is contained in Irwin Toy, supra, at pp. 333-4 (and see, also Pilon, supra): "We start by observing that the absence of an express restriction upon the assignment of bargaining unit work to foremen is not dispositive. The language found in most collective agreements which sets out the classifications covered by the agreement, creates seniority and recall rights and establishes job posting procedures, gives rise to an implied restriction upon a company's right to assign bargaining unit work to supervisors. This implied restriction has been universally recognized by arbitrators. The recognition of this implied restriction forms a part of the arbitral backdrop against which collective agreements are negotiated and against which they must be interpreted." That the comments in Irwin Toy, supra, were made in the context of work given to supervisors does not confine the reach of the principle of implied restriction in a collective agreement to such managerial personnel: Pilon, supra. Nonetheless, the facts of the instant case do not support the union's assertion regarding an implied restriction of coordinator work to members of the bargaining unit. First, Irwin Toy speaks of the quantum of work needed to raise a concern with respect to an implied restriction. It is necessary for the work to be sufficient to occupy a bargaining unit employee on a full-shift, or very nearly so, on an ongoing basis. The evidence herein establishes that the coordinator contract given to Cornell comprised twenty-five hours per week. That is less than the forty-four hours per week workload level fbr Klassen. As noted in the Agreed Facts, Klassen was given thirty hours of release time to perform her coordinating duties. Complementary functions and committee work made up the balance of her full-time hours, i.e., forty-four per week. Further, with respect' to the coordinator functions, Klassen performed other duties and responsibilities not assigned to Cornell. In this instance, Klassen was given full release time from her teaching duties. Coordinator work may well occupy far less than the thirty hours per week. The documentary evidence reveals that part-time coordinators replacing full-time faculty performing coordinating work may range from a low of two to a high of twenty-five hours per week. Indeed, the twenty-five hours represents the contract with Cornell (and his predecessor, Morrison). This is the first hurdle faced by the union in arguing for an implied restriction. Nonetheless, since the collective agreement, in article 14.02 C 1, contemplates a less than full-load assignment, for a mutually agreed period, where the 21 full-time employee so requests and the College approves, I am prepared to continue with the "implied restriction" analysis. Second, the reasoning in Irwin Toy, supra, points to provisions regarding classifications, seniority, layoff, recall and posting to ground the implied restriction on bargaining unit work being performed by persons not within the unit. There are clauses in the collective agreement before me which address in great detail the rights of bargaining unit members regarding seniority, layoff and recall. But, those clauses do not apply to coordinators. Nor, as mentioned, is coordinator a classification in the agreement. The mere fact that the agreement speaks of allowances for such work in article 14.03 A 3 does not clothe that work with protected status as confined within the bargaining unit. Likewise the mere reference to "academic leadership" in that article and in the Class Definition for Professor is insufficient to justify an inference that coordinators must be teachers in the bargaining unit. Within the unit, "teachers" include Instructors as well as those holding the rank of Professor. And, as noted, teaching itself is not exclusive to the unit. Indeed, several cases, including those cited by union counsel in support, make manifest the distinction between the type of clauses noted in Irwin Toy, supra, as grounding an implied restriction and the structure of the instant agreement. As clearly stated in Canadore College, supra, "...the designation of coordinators is a management function, to be exercised in the sole discretion of the College. A person so designated has no'right to expect tenure in that position, and may be removed at the College's discretion, at least if discipline is not the motive." [at p. 7] In that case, the grievor sought to displace another bargaining unit member whose duties included coordinator work. The right to bump was upheld, given that the grievor was qualified to displace the more junior individual. However, and critically for our purposes, the grievor was not entitled to be assigned the coordinator duties. The analysis in Niagara College, supra, reinforces the characterization of coordinator as work which cannot be claimed by virtue of seniority or prior performance of those duties. "Coordinator" may be regarded as a "position" in a generic sense but is not comparable 22 to a classification within the bargaining unit, such as, "Teaching Master" (now termed "Professor"). In Niagara College, supra, and the Knopf award, supra, there is reference to coordinators as employees within the bargaining unit. In my view, that phrasing does not reach to the proposition asserted by union counsel that coordinators are exclusive to the bargaining unit. Both usages do no more than recognize that coordinator work may be performed by "teachers", as opposed to "counsellors" or "librarians". To say that teachers may act as coordinators is not the same as requiring coordinators to be assigned from within the bargaining unit. It is undisputed that coordinators are, in many instances, drawn from the teaching ranks within the bargaining unit. That is not proof that coordinators must be exclusively drawn from that unit. It is that proposition which the union must prove and which, in my view, has not been so established. Union counsel relies on wording in the Knopf award, supra, that coordinators are recognized as members of the bargaining unit. With respect, the decision does not go that far when those words are read in context. Arbitrator Knopf was dealing with a preliminary objection as to arbitrability. She concluded, in an analysis with which I take no issue, that she had the .jurisdiction to consider whether coordinator work may be bundled with certain teaching hours, in the context of the grievance before her. that is, the union's allegation that sufficient work existed for at least one full-time position in the FSL (French as a Second Language) area. Arbitrator Knopf's decision does not address the issue of exclusivity of coordinator work within the bargaining unit at all. Thus, again, I am satisfied that the concept of implied restriction, as enunciated in Irwin Toy, supra, for example, does not flow from a reading of the collective agreement as a whole. It is necessary, before concluding this line of analysis, to return to the excerpt noted earlier in J.S. Jones Timber, supra. Therein, the notion of bargaining unit work is characterized as that which is "normally and traditionally" performed within the 23 bargaining unit "to the exclusion of persons outside the unit". Where work is performed by persons without regard to their bargaining unit status, it cannot be seen as "bargaining unit work in the jurisdictional sense": see, p. 90. Apart from instances where the disputed functions go to the core of the bargaining unit functions or otherwise undermine the integrity of the bargaining unit, where work is "inherently overlapping" as between bargaining unit members and excluded personnel, there is no exclusivity: see, p. 94. In the instant case, I accept the evidence as credible that part-timers have worked as coordinators for many years, including as replacements for persons within the full-time bargaining unit. The evidence on this point was clear and unequivocal and not contradicted by any union witnesses. Coordinator work has "normally and traditionally" been performed by persons within and outside the bargaining unit, including many instances where the part-time coordinator actually replaced a full-time faculty member performing coordinator work. My factual findings at this juncture regarding the use of part-timers is not "past practice" as an aid to interpretation of the collective agreement. That aspect of the employer's argument is dealt with infra. What I am here stating is that the union called no evidence to indicate exclusivity of coordinator work. Nor is this an instance where the use of part-timers as coordinators may be said to "fly under the radar", to use a colloquial expression. The very nature of the coordinator duties involves interaction with members of the bargaining unit. The union regularly receives data on staffing, including temporary payroll data. The union receives the object codes and key to read the data. The temporary payroll codes specifically identify part-time coordinators who are replacing full-time bargaining unit members. Union counsel asserted that the employer had not proven that the data had been received by the union or that the union had knowledge of the regular and extensive use of part- timers as coordinators. That assertion cannot be sustained. I briefly return to the question of onus. Even accepting that the union satisfied its initial burden of demonstrating that coordinator work has been performed by bargaining unit members, and that the employer faced the "secondary burden", the employer has manifestly discharged that onus with its viva voce and documentary evidence. The union could have 24 sought to refute that evidence through testimony from union officials: that did not happen. Hence, there is no basis to conclude the union was unaware of the regular and extensive use of part-timers as coordinators. Consequently, the union cannot bring itself within the concept of implied restriction as elaborated in J.S. Jones Timber, supra. Moreover, in a decision between these parties, it was recognized that certain aspects of "coordinator work", albeit not the core functions, may properly be assigned to members of the support staff bargaining unit: the Starkman award, supra. In summary, I am satisfied that there is no express or implied restriction in the collective agreement which would ground an interpretation that coordinator work must exclusively be assigned to bargaining unit members. The provisions negotiated by the parties are clear and unambiguous. The plain language of the specific sections dealing with the scope of the unit and with coordinators has been considered. As Well, the relevant provisions have been read in the context of the collective agreement as a whole. I acknowledge that a concern with work being transferred out of the bargaining unit to the extent that the integrity of the unit is compromised is reflected in the jurisprudence: see, for example, the Fisher award, supra. But that is not this case. Cornell's contract was for the one year Klassen was on sabbatical. Moreover, there is no evidence before me of any erosion of the bargaining unit through the long-standing assignment of coordinator work to persons outside the unit. For the union to assert a threat which is purely hypothetical and disconnected from any factual basis is insufficient to warrant my finding any undermining of the integrity of the bargaining unit in the employer' s conduct in the Cornell situation or the use of part-time coordinators generally. There is an express restriction on the use of bargaining unit members as coordinators in article 14.03 A 3, namely, that "It is not the intention of the Colleges to require employees to accept the designation of coordinator against their wishes". If coordinator work is voluntary, it is less probable that the parties intended that coordinator work be restricted to bargaining unit members. Such a restriction would lead to the absurd result 25 that all bargaining unit members could refuse coordinator assignments and the College would be unable to have such work performed. To avoid this absurdity, union counsel contended that the College could, in fact, render mandatory such assignments as a last resort. Employer counsel rejected that interpretation as flying the in the face of a plain reading of the provision. With his submissions on this point, I agree. A careful reading of article 14.03 A 3 supports the interpretation that that article deals with coordinator allowances, as is its title, and related issues where teachers in the full-time bargaining unit accept coordinator assignments, rather than constituting a basis for finding that coordinator work is exclusively to be performed by the bargaining unit. Another argument raised by the union is usefully dealt with, albeit briefly. It was contended that the search conducted by Keon in canvassing the ESL department was deficient and she should have sought volunteers from throughout the unit. I cannot agree. There was no evidence to suggest that broader searches are typical. In fact, the only evidence before me supports a finding that it is usual to seek volunteers from within the department or program in question. Klassen volunteered to assume the coordinating duties in 1999 when the previous coordinator resigned her position. In April 2003, with Klassen's sabbatical approaching, Keon convened a meeting with the program faculty and asked for volunteers. The full-time faculty were given two weeks to come forward if interested. None volunteered. Keon sought recommendations from some of the full-time staff as to which of the part-time staff might be suitable. Morrison was recommended and initially accepted the coordinator assignment. When Morrison chose not to continue, Cornell was contacted and accepted the role. There was no objection to this process. Moreover, if the article is to be read as the union asserted, there was no need for Keon to search for a part-time coordinator. She could simply have designated a full-time faculty member to so act once there were no "volunteers". Thus, the process, far from being deficient, underscores the intention of the parties that article 14.03 A 3 renders voluntary the acceptance of a coordinator role by members of the bargaining unit. While these conclusions are sufficient to warrant dismissal of the grievance, I think it appropriate to address the question of past practice as an aid to interpretation, particularly 26 in view of the vigour with which this issue was contested by the parties. This alternative analysis leads to the same conclusion. That is, even if the references to scope of the unit and coordinators are found to be ambiguous, that ambiguity is resolved by recourse to past practice and the grievance fails. Employer counsel contended that, if the collective agreement was regarded as ambiguous, past practice could be utilized as an aid in interpretation. Both counsel referred me to cases elaborating upon the use of past practice in such circumstances: see, for example, Canadian National Railway, supra; Eastern Bakeries, supra. I accept the proposition that, absent an ambiguity, past practice may not be considered in interpreting the collective agreement. Nor do I take issue with the reasoning in the cases cited. For example, that a collective agreement is silent does not, of itself, constitute an ambiguity: Eastern Bakeries, supra; Wilson's Truck Lines, supra; Dominion Colour, supra. Nor does the fact that there may be differing interpretations asserted warrant a determination that the provision is ambiguous: Canadian National Railway, supra; Wilson's Truck Lines, supra. The rationale for the use of past practice evidence as an aid in interpretation is neatly captured in the next passage from Eastern Bakeries, supra. "It is clear that if a provision in an agreement is ambiguous in its requirements, the arbitrator may utilize the conduct of the parties as an aid to clarifying the ambiguity. In such a situation the use of evidence of past practice may be invoked as an aid to interpretation of the agreement. The theory requires that there be cofiduct of either one of the parties, as an aid to clarifying the ambiguity. Further that there be conduct of either one of the parties, which explicitly involves the interpretation of the agreement according to one meaning, and that this conduct be acquiesced in by the other party. If these facts obtain, the arbitrator is justified in attributing this particular meaning to the ambiguous provision. The principal reason for this is that the best evidence of the meaning most consistent with the agreement is that mutually accepted by the parties. Such a doctrine, while useful, should be quite carefully employed. Where arbitrators have accepted a past practice as being reliable it is usual that it will have been a uniform practice over a number of years which had existed 'through several renegotiations', that it had existed under the previous collective agreement or that it 'had been openly and without surreptition carried out for a long period." [at pp. 373-4] 27 The College adduced evidence establishing the long-standing practice of appointing part- timers to perform coordinator work and the forwarding of data, which revealed that usage, on a regular basis to the union, together with the key and codes needed to read the data. The union did not call evidence in rebuttal. I need not repeat my earlier comments on this point. It is sufficient to reiterate my determination that the union had knowledge of this long-standing past practice openly carried out. To use the phraseology in Eastern Bakeries, supra, the College's conduct explicitly involved the interpretation of the agreement according to one meaning and was acquiesced in by the union. This unchallenged conduct is the "best evidence of the meaning most consistent with the agreement" as mutually accepted by the parties. I certainly concur with the caution expressed in the jurisprudence regarding reliance on past practice as an aid in interpretation. In these circumstances, the College has satisfied the criteria underpinning the proper use of past practice in resolving an ambiguity. The analysis in Selkirk College, supra, at pp. 309-12, further supports my determinations. The following excerpts are apposite in the instant case. "First - and most important - the arbitrator is looking for the mutual agreement of both parties, not the unilateral intentions of the one side. Without some reciprocal assent from the other side, the tact that one party had an intention may indicate no more than what it wished to achieve and it is question-begging to conclude from this evidence alone that its wish has been fulfilled. [quoting from University of British Columbia, [1977] 1 C.L.R.B.R. 13 (Weiler)] Hence it would seem preferable to place strict limitations on the use of the past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice". [quoting from John Bertram & Sons Co. Ltd. (1967), 18 L.A.C. 362 (Weiler)] In Selkirk College, supra, the arbitrator inferred from the continuance of the practice over a long period of time without objection from the union and the fact that neither the union nor any members of the bargaining unit had, before the grievance at issue, challenged the 28 practice constituted acquiescence on the part of the union. (at p. 311) The arbitrator also noted that the union, representing an academic bargaining unit at a College, was not a "small, unsophisticated, inexperienced bargaining agent". (at p. 311). In the instant grievance, the academic bargaining agent likewise is not small, unsophisticated or inexperienced. There has been no challenge to the use of part-time coordinators prior to this grievance, notwithstanding the long-standing use of such persons where the work itself involves interaction with members of the unit and where the union cannot plausibly deny knowledge, given the credible evidence proffered by the College and the absence of rebuttal evidence by the union. In that absence, an adverse inference may properly be drawn buttressing the finding that the union was aware of the practice. Indeed, there was no challenge to the initial appointment of Morrison as the coordinator in ESL; the grievance followed Cornell's replacement of Morrison when she indicated her wish not to continue with the role. Additionally, the College established that the usage of part-time coordinators is included within the data forwarded to the union on a regular basis. Other portions of that data have been relied on by the union to ground grievances challenging conduct of the College. That the data has been used in other instances undermines any possible contention that'the union was unaware of the practice in question herein. Therefore, in the alternative, if the references to the scope of the bargaining unit and the work of coordinators is ambiguous with respect to the exclusivity of such work, I find that the uncontroverted past practice may properly be relied on to clarify the ambiguity. That evidence supports the College's position that coordinator work is not exclusive to the bargaining unit. Employer counsel argued, in the further alternative, that the union was estopped from now claiming the coordinators must come exclusively from within the bargaining unit. Both counsel cited several decisions concerning the elements needed to ground an estoppel: Georgian College, supra; Redpath Sugars, supra; St. Lawrence College, supra. I have outlined the reasoning underpinning my decision that this grievance must be dismissed on other grounds. In the circumstances, I need not address the issue of estoppel. To summarize, the collective agreement cannot reasonably be interpreted to sustain a conclusion that coordinators must be assigned exclusively from within the bargaining unit. That determination is ascertained from the clear language of the agreement, pursuant to my mandate to discern the intention of the parties as expressed in the document as negotiated. In the alternative, if the relevant provisions are regarded as ambiguous, past practice may be used as an aid to interpretation. That past practice unequivocally supports the interpretation asserted by the College that it was not the intention of the parties that coordinator work be restricted to bargaining unit members. Accordingly, for the foregoing reasons, the grievance is hereby dismissed. DATED this June 21, 2005 Susan Tacon, Sole Arbitrator