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HomeMy WebLinkAboutUnion 05-07-29 IN THE MATTER OF AN ARBITRATION between · ' FANSHAWE COLLEGE (the "College") and' ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the "Union',) UNION GRIEVANCE RE STAFFING LEVELS IN THE ARTS& DESIGN DIVISION (OPSEU GRIEVANCE # 2004- 0110- 0017) BOARD OF ARBITRATION: PAMELA COOPER pICHER - CHAIR SHERRIL MURRAY - UNION NOMINEE RON HUBERT - COLLEGE-NOMINEE APPEARANCES FOR THE UNION: Tim Hannigan - Counsel Tom Geldard - 1st Vice-President Gary Fordyce - Chief Steward APPEARANCES FOR THE COLLEGE: RObert J. Atkinson - Counsel Sheila WilsOn - Staff RelatiOns Consultant, FanshaWe, ApPlied Arts & Tech. A hearing in this matter was held in London on March 3, 2005. Additional submissions were received from the parties dated May 31, 2005 and June 23, 2005. PRELIMINARY AWARD The Union has filed a.grievance dated April 13, 2004 comPlaining that the College has acted in breach of article 2 of the collective agreement by allegedly failing to give preference to regular full-time positions in the Art & Design'DiviSion of the College. The Art & Design 'Division includes approximately 10 different programs (such as fine art, fashion design, landscape design and urban & regional planning), approximately 1500 students and some 29 regular, full-time faculty. According to the'Union, more than one-half of the hours, in the department are taught by non full-time employees., particularly partial-load and part-time teachers. By way of remedy, the Union asks that the College post 26 'full-time positions. As a preliminary matter, the Union seeks an order for the production of certain documentation in the possession of the College. The Union asserts that. these documents are relevant to establishing its alleged breach of article 2 and maintains that it does not have reasonable access to the material it seeks. For its part, the College has asked for an order excluding consideration of part-time employees in respect of the alleged breaCh of article 2, emphasizing its pOsition that article 2 does not regulate either part-time emplOyees or part-time work. Counsel for the College asked that the jurisdictional issue be decided· at this stage of the proceeding instead of being deferred until the determination of the merits of the grievance because, in his submission, it will significantly impact the length of the case. 2 Article 2 of the collective agreement provides, in part, as follows: Article 2 STAFFING 2.01 ... 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load teaching positionsl as defined in Article 26, Partial-Load Employees, subject to operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. 2.03 A The College will give preference to the designation 'of'full- time poSitions as regular continuing .teaching positions rather than sessional teaching positions, including, in particular, positions arising as a result of new post-secondary programs subject to 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 t° 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 the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. ,The bargaining unit includes full-time teachers who, on an ongoing basis, teach more than 12 hours but not more than 18 hOurs per week. In addition, the bargaining unit includes partial-load emPloyees. Pursuant to the terms of article 26.01 B, "A partial-load employee is defined as a'teacher who teaches more than six and up to'and including 12 hours per week on a regular basis." Sessional and part-time employees are expresslY excluded from the bargaining unitthrough the article 1, Recognition Clause: 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers ... ~ except for those listed below: oo, (v) teacherS ... empl'oyed'on a part-time or sessional baSis. Part-time and Sessional teachers are defined in NOTES A and B in article 1.01, as follows: 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. The parties agree that to establish that the College has failed to give the stipulated preference to regular full-time positions under article 2, the Union must demonstrate that there exists a "body of work" that would comprise one or more 4 full-time positions, subject to consideration of "operati'onal requirements'' as referred to in article 2,. Staffing. ' In Re George Brown College and OPSEU, decision of a board of arbitration chaired by Arbitrator Owen Shime dated December 23, 2002, (hereinafter referred to as "Re George.Brown College (Shime)"), the board conCluded at p. 2 that to establish a prima facie case, "the Union must demonstrate that there is adequate work to justify, the filling of [a full-time] position''. At p. 6, in a similar vein, the board adopted the'College's submission that to establiSh a pdma facie case, the Union must show "that there is a body of work which translates into a full-time position". At p. 3, the board noted that once the Union has established its prima facie case, "... the College has the onus of adducing evidence to· show that the 'preference' indicated for full-time Positions is subject to 'operational requirements' pursuant to Articles 2.02 and 2.03 A." Regarding the factors relevant to the Union's request for the production of documents, we note that some of the relevant information which may assist the Union in understanding the body of work that might comprise regular full-time positions comes tothe Union directly from the College pursuant to the. College's tri-annual reporting obligation under article 27.12. Pursuant to article 27.12, the College details the personnel it has hired for, or terminated from, regular full-time, partial-load, part-time or sessional teaching positions Since its last notification. Article 27.12, Personnel Lists, provides as follows: 5 Personnel Lists 27.12 During the last Week of September, January and MaY. the College shall notify the Union Local President of all Personnel covered, by the agreement [full-time and partial-load] hired or terminated since the last notification, together with the classification, location and' Division or Department concerned. At such times, the College shall 'also include notification of all hirings of personnel assigned to teach..credit courses [part-time and sessional] including, in particular, sessional app°intmentsi While these lists provide the Union with the names of' the various categories of teachers,. as well as their start and/or finish dates, they do not itemize their hours, set out the courses they teach, provide detailed descriptions of the coUrses, the evalUation methods or course objectives, all of which the Union asserts are relevant to determining the body of work from Which full-time positions may be created, subject to operational requirements. Further information available to the Union includes the brief Course Descriptions that are in the College's Course Calendar. These descriptions are available on the College's computer system in a format to which the Union has access. Of particular importance to the ·Union's production request, however, the Union maintains that additional information in the form of Timetables and Course Outlines or Course Information Sheets are not reasOnably available to. it and yet are central to the information it requires to demonstrate the basis' of its allegation that there is a body of work from which regular full-time positions should be created in accordance with article 2. The Timetables set oUt the courses taught, the instructors of the reSpectiYe courses, as well as the times at which and the. days on which the courses are given. The Course Outlines or Course Information Sheets set out such details as the teaching objectiveS.of the variOus courses, the respective modes of evaluation and the required texts, none of which are in the Course Descriptions. The College acknowledges that while both the Timetables and the CoUrse Outlines are on the College's computer system, the Union has not been given access to these materials. The Course Outlines are available to the teachers who give the courses and are handed out to the students who take the respective courses. Although the Union's requested remedy dates only from the date of the grievance in 2004, the Union requests that it be given: access to the Timetables and Course Outlines back to 2002, because, the Union maintains, it needs to look at teaching and course patterns over several years to understand course groupings and to address the issue of the "operational requirements". In addition, the Union contends that in order to determine whether there are full-time positions within the body of work taught by non regular full-time teachers, it needs, among other tasks, to evaluate, over time, the similarities and differences between the various courses and to understand the patterns respecting' the hours of the day when the respective courses are taught, the demands that flow from the course objectives as well as the specific methods of student evalUation fOr each of the courses. The College objects to providing the Timetables and Course Outlines to the Union because it asserts that the Union could get this information. through other means. The College asserts, fOr eXample, that the Union knows the. names of the partial-load and full-time teachers and could ask them for the information it needs respecting the various courses they are teaching. In addition, the. College, asserts that.before the Union is entitled to such detailed information, it should set out what full-time positions it alleges the College should have .created. It-is the College's position that the Union has no case and, through its ~r°duction request, is on a fishing expedition to find one. The College further maintains that if the Board orders the productiOn of the requested Timetables and Course Outlines, it should not be asked to do so in respect of the 'part-time teachers. Counsel for the College maintains that while article 2'of the collective agreement establishes a preference for regular full-time teaching positions Over both partial-load teaching positions (article 2.02) and sessional teaching positions (article 2.03 A), it does not giVe such a preference over part-time teaching positiOns. More brOadly, counsel for the COllege argues that the collective agreement does not regulate either part-time employees or part-time work. In effect, c°unsel maintains that the hours taught by part-time teachers should not be included in the body' of work to Which the Union may look to .assess whether there are hours for regular full-time positionS which, allegedly, should be established in preference to partial-load or sessional positionsl Taking it t° its extreme, counsel for the College asserts that 'the College may create as many part-time positions as it wants without recourse by the Union to a complaint under article 2 of'the collective agreement. COunsel argues that if'the College used only full-time and part-time emplOyees, the Union Would have no basis'for a grievance under article 2, since parttime teachers are not referred to therein, i.e. since article 2 allegedly establishes no preference for regular full-time positions over part-time teaching positions. In asserting that neither part-time teachers nor. their work ·should be considered ·in this article 2 grievance, the College relies particularly on Re Algonquin College and OPSEU, decision by Arbitrator. Paula Knoff dated May. 27, 2003. In Re Algonquin College, similar to the matter at hand, the Union had filed a grievance asserting that the College had breached the collective agreement by failing to give preference to the designation of full-time positions. Approximately half of the courses being taught at the Police Foundations Department at the College were given, by teachers who were not full-time bargaining unit members, i.e. by part-time, partial-load and sessional teachers. At the final stage of the hearing, i.e. in argument, the College asserted for the first time that nothing in the collective agreement restricted the College's use of part- time teachers and that, accordingly, the arbitrator had no jurisdiction to interfere With staffing decisions with respect to the assignment of part-time positions over full-time positions. At pp. 10-11 of the collective agreement the arbitrator accepted the College's argUment and concluded as follOws: .... By creating specific restrictions and yet omitting reference to part-timers, it can only be concluded that the collective agreement does not intend to restrict the use of part-timers as. it does the use of sessionals and partial-load appointments. The frequent references to part-timers in other provisions of this collective agreement suggest and indicate that the parties consciously designate when and where 'part-time teaching assignments are to be affected or governed by the collective agreement. The obvious examples of this are in the layoff and recall provisions as well I as for the UCC [Union College Committee] meetings. Because the Parties have failed to include part-time appointments within the restrictions in Article 2, this leads to the conclusion that Article 2 does not operate.to restrict the use of part-time appointments. These conclusions may appear c°unter-intuitive at first. .Why would the parties not be deemed to restrict part-time assignments when the obvious .purpose of Article 2 is to give preference to full time positions and protect the integrity'of the bargaining unit as lOng as operational requirements can be met? Without any contractual restrictions on the use of part-timers, a college might be tempted to staff in a way that could erode .a bargaining unit by making multiple part-time assignments. However, an arbitrator cannot make decisions based on intuitive responses or impose his/her own preferred collective bargaining or pedagogical models. An. arbitrator's role is to discern, interpret and apply the intentions of the parties On the basis of the language they have adopted in their collective agreement. It is presumed that the parties adopted the language of Article 2 for rational reasons. They have retained this language for many .years through several' rounds of collective bargaining. The parties consciously chose to give preference to full-time positions over partial-load and sessional appointments. They did not restrict the use of part-timers who are discretely defined as a status quite different than partial~load or sessionals. Therefore, it cannot be implied Or concluded that part-time appointments would encompass sessional or partial-load appointments as one group. Instead, part-timers must be viewed as a separate entity that is recognized in various parts of the collective agreement, but not factored into staffing protections provided in Articles 2.02 and 2..03 A. This leads to the inevitable conclusions that an arbitrator has no jurisdiction to interfere 10 with staffing decisions with respect of the assignment of part-time positions over full-time positions. At the conclusion of the arbitrator's decision in Re Algonquin College, the arbitrator added an END NOTE that indicates that her decision would have been "very different" if there had been "any evidence that the staffing patterns had been designed or intended to erode the bargaining unit or circumvent the collective agreement:.." At pp. 25-26, the arbitrator stated, in part, the following: END NOTE This Award appears to be the first in this sector dealing with the substantive question of whether Article 2 imposes restrictions on the use of part-time teachers .... it must ...be noted that this decisions was reached in the context of evidence where there is. absolutely .no suggestion of any intent to erode or weaken the bargaining unit .... Dean Barker...had no intent to undermine the Union, circumvent the collective agreement or diminish the integrity of the' bargaining unit. Dean Barker's objectives were purely pedagogical. He was also adamant that he intended to retain the use of full-time faculty .... it is important to recognize that the Award is being made in the factual context of a College and a Dean recognizing the importance of full-time bargaining unit positions to 'the stability and successes of a program. If there had been any evidence that the staffing patterns had been designed or intended to erode the bargaining unit or circumvent the collective agreement, this decision would have been very different. In Re George Brown College (Shime), supra, the Union asserted that the College had breached the collective agreement by improperly using sessional, part-time and partial-load appointments to fill regular full-time poSitions. The board addressed the Union's request for the production of those documents it deemed necessary to establish its prima facie case of showing that there was an adequate "body of work", i.e. courses that were being taught, to juStify the filling ot: a full-time position or positions. At p. 4, the board concluded that, "both the College and the Union are required, if requested ,by the other . party, to produce documents in their possession for the purpose of the arbitration that are arguably relevant." At p. 3, the board commented that, "It is no answer for one of the parties to say that it has already given, documents to the other party at some time in. the past. There is a distinction to be drawn between documents which are exchanged in the ordinary course of business and 'documents which. are required for arbitration purposes." The board in Re George I~rown College ($hirne) then concluded.at p. 6 that to assist the Union in establishing its Prima facie case, ... the College must produce any documents which list the courses taught by the retired professors. And further the College must also produce any documents which indicate whether those courses, or courses Sufficiently similar, or which are arguably relevant, are being taught by others, who are either full-time or part-time, which includes partial load and even sessional persons. In a case similar to the matter at hand, Re George Brown and OPSEU, decision of a board of arbitration chaired by Arbitrator Jane Devlin dated January 16, 2003, (hereinafter referred to as "Re George Brown College (Devlin)"), the Union alleged that the College had improperly used partial-load and part-time employees to fill ongoing full-time positions. In order to establish its case, the Union sought production of documents, inclusive of course outlines and timetables relating to the College's use of Part-time teachers as well as partial- load and full-time teachers. The College was willing to produce documents relating to partial-load teachers but not relating to part-time teachers on the ground that the College's use of part-time employees was "inarbitrable". To this end, the .College argued that part-time emplOyees are excluded from the bargaining unit and that their use is not rest'ricted..by article 2 or any other provision of the agreement as long as they do not exceed their specified number of teaching hours. Notwithstanding the College's position, .the board concluded that the College was required to produce documents, inclusive of course outlines and. timetables, relating to part-time teachers. The board reasoned, in part, as' follows at pp. 7-8 of its award: In 'the Board's view, issues of this nature are properly determined in the context of the merits of the grievance, rather than on a preliminary basis. Accordingly, at this juncture, the Board is not prepared to find. that the Union's Claim in relation, to the uSe of part-time employees is inarbitrable. Moreover, taking into account the award of the Shime Board, this Board finds that documentation regarding courses taught by the part- time employees identified by the Union is arguably relevant to the matters in. dispute and ought to be produced. AS to the particular documentation ~equested, the College is directed to produce a list of the courses taught by the part-time employees in question ... as well as course outlines and timetables for faculty who taught these courses. As to the request for similar documentation in relation to the prior academic year, in the Board's view, the category of employee who taught the courses previously is arguably relevant to the matters in dispute and, therefore, ought to be .produced. While the Devlin Board granted production of documents relating to part- time teachers, it reserved on the College's claim of inarbitrability respecting the Union's allegation that the College had improperly used 'part-time teachers. In the instant matter, the College has asked the Board not to reserve on its claim of inarbitrability. Article 7 operates in coordination with article 2. Under article 7.02(vi) of the collective agreement regarding the Union/College Committee (Local), the cOllege, among other factors, is required to discuss with the union its rationale for assigning its work on a part-time, partial-load, seSsional and regular full-time basiS, as well as to consider the Union's representatiOns respecting the feasibility of assigning work on a regular full-time basis rather than on a sessional, ' partial- load or part-time basis. Article 7.02(vi) provides as follows: Article 7 UNION/COLLEGE COMMITTEE (LOCAL) 7.02 A Committee. of three members appointed by the college.., will meet with the Union College ... Committee at a mutually agreed time and place ... It is agreed that matters to be the subject of discussion at meetings include: (vi) if requested by the Union Local,. the College shall explain its rationale for its appliCation of Article 2, .Staffing, or 27.05(iii). In particular, it will consider any representations which the Union' Local may make with respect to the assigning of work on a full-time or a sessional, partial-load or part-time basis, and .with respect to the feasibility of assigning work on a full-time basis rather than on a sessional, partial-load or part-time basis~ ]4 In Re George Brown College, decision of a board of arbitration chaired by Arbitrator Paula Knopf dated December 17, 2004, (hereinafter referred to as Re George .Brown College (Knopf)), the board was asked to determine the extent of the Union's right to information under article 7.02(vi).. At p. 34 of its decision, the board noted that while its case was not an interpretation or application of article 2, article 2 must be recognized, "[n]onetheless, ... as the backdrop of this case" under article 7.02(vi). The board went on to state at pp. 34-35 and pp. 42-43, as follows: The substantive rights in Article 2 are what will be addressed in the Article 7.02(vi) UCC meetings. These are not just Union rights. These rights include not only the 'preference' for full-time appointments, but also consideration of operational requirements as well. Therefore, both parties' rights are at stake in the discusSions at the UCC meetings. Presumably, this is why the UCC was created as a joint body. ... Because of the way ... Article [2] works and the evidentiary burdens on the parties, arbitration boards have ordered Colleges to produce lists of course taught by part-time employees course outlines and timetables (see George Brown College (Devlin) at pp. 6 and 7, sUpra). The Shime Board of Arbitration ... also ordered this College to produce ... existing documents whether" ... courses ...[were] being taught by others who [were] either full-time or part-time, which [included] partial-load and even sessional persons" ... These orders for production reflect the conclusion that the Union has an interest in understanding the nature of the 'body of work' that it believes has been assigned in violation of Article 2. Where does this leave the parties? First, we have reminded the College that it has to be in a position to explain its use of non-full-time teachers because the Collective Agreement mandates that the College will give preference to the designation of full-time teaching positions .... [W]hen and if the Union raises questions about appointments, the College must ' be in a position to explain, at the Article 7.02(vi) UCC meetings, the operational requirement and/or 'rationale that it invoked when deciding to hire a non-full-time person. To this end, the Union is also entitled to request that the College provide a list of courseS taught by. non-full-time employees, their course outlines and the timetables of faculty who .taught these courses. Accordingly, under article 7.02(vi), for the purposes of staffing discussions at the uCc meetings, the Knopf Board determined that the Union was entitled to the productiOn of coUrse lists, course outlines and timetables for "non-full-time" persOns, which, we conclude, clearly includes part-time teachers. In a recent arbitration, Re St. Lawrence College and OPSEU, deciSion of a board chaired by Owen Shime, dated May 18, 2005, the bOard, dealt with five grievances through which the Union claimed that the College had acted in breach of article 2 by failing to rePlace with full-time faculty a number of retired full-time teachers and one deceased full-time teacher. Similar' to the matter at. hand, the College raised a preliminary objection asserting that the board of arbitration had no juriSdiction to deal with the College's use of part-time teachers~ relying, in particular, on the decision in Re Algonquin College, supra. The College also raised the question of the nature of the evidence required for the Union to establish a prima facie case. At pp'6-10 the board in Re St. Lawrence College drew the folloWing conclusions respecting the issues related to part-time employees: In considering the articles in issue, we find ou. rSelves in general agreement with the. observations made by the learned arbitrator in Algonquin College. Article 2.02 and 2.03A are restrictive only in the sense that they require preference to be given to full,time positions over partial Icad and over sessional positions, subject, of course, to operational requirements. The College is not restricted to using partial Icad teaching positions, nor is it restriCted .to using sessional teaching positions, and the only restriction contained in Article 2 is the requirement that preference be given to full-time positions, subject to the conditions contained in both articles. What was patently obvious to the learned arbitrator in Algonquin College, and which had not been really addressed in previous cases, is that no mention is made of part-time positions in Article 2. Accordingly, absent bad faith or anti-union animus the utilization of part-time positions does not constitute a breach of Article 2, since there is no specific requirement, as there is in the case of partial load and sessional Positions, that preference be given to full-time positions over part-time positions. The College takes the position "that a prerequisite to an Article 2.02 and 2.03 grievance is the existence of full-time position in the first plaCe''. We are not in agreement with that submission. The Article, as written, dOes not pose a requirement that there be a full-time position before embarking on a grievance. The Article merely contemplates a preference for full-time positions,' subject to operational needs, in preference to sessional and partial load positions. If the Union is able to demonstrate that by cobbling together either partial load or sessional positions there are sufficient courses to enable there to be a full-time position, it may do so. That may require an assessment of the total complement, including the various courses that are being taught. Once the Union shows there are sufficient courses being taught by partial load and sessional teachers that would enable a full-time position, the onus then shifts to the College to demonstrate the operational requirements that bring it within the exception in Article 2. While we acknowledge the use of part-time employees does not constitute a violation of Article 2, it may very well be in the course of considering operational requirements there may be some incidental evidence to' be considered dealing with part-time employees, and we do not, at this early stage of the proceedings, in the absence of a specific factual context, exclude the possibility of such evidence. The introdUction of such evidence must be decided on a case by case basis. 17 A bOard of arbitration .has general jurisdiction to ensure the , sanctity of the bargaining unit .... Clearly, if a vacancy had been. created in a full-time position, the UniOn would be entitled to grieve either on the basis that there had been a violation of Article 2, in that preference was not given to full time positions over sessional or partial load persons, or, alternatively, in a general way, by maintaining the College had eroded the .bargaining unit by assigning the work to. part-time employees. That would" require .a board of arbitration to assess the full-time position and to consider the part-time assignments in the context of reviewing the overall workload in the .bargaining unit and the operational requirements that caused the College to assign the work as it did. Corroboration for the general theme that the College is not allowed a free hand in eroding the bargaining unit is found in Article 27.05 of the. Collective Agreement, which contains specific procedures to be followed where the College plans to layoff or reduce the number of full-time employees. In the event Of a .layoff or reduction, the College has the right, "To determine the number and composition of fUll-time, partial-load and part-time or sessional teaching, positions", however, "The College shall give preference to continuation of full-time positions over partial load, part-time or sessional positions subject to .... operational requirements." Accordingly, we determine, in the context of a planned layoff or reduction of full-time employees the College is prohibited from eroding the full-time bargaining unit and is required to give preference to continuing full-time positiOns over "partial,load, part- time or sessional teaching positions" and in that' particular context a board of arbitration may consider the utilization of part-time employees. In all the' matters referred to, the burden of proof lies with the Union to demonstrate {1) whether the College is in violation of Article 2, by not giving preference to full time positions, partial load or sessional teachers, and, alternatively, .' {2) whether the College is in violation of the general principle not to erode the full-time bargaining unit. The obligation of the Union ·is to establish a prima facie case that the College is in violation of the Collective Agreement. It is not sufficient to merely file a list of sessional, partial load and part-time employees. Quite simply, it is the College's right to determine complement and to hire employees into those positions. To merely state that the College has done so is simply to affirm its. right. The Union' must go further and eStablish how the College has violated the Collective Agreement; it cannot adopt a scatter shot approach of a general.nature and force the College to respond. The Union ,as a party to the Collective Agreement has a responsibility to monitor the Collective Agreement and its administration by the College. This Collective Agreement has a number of articles that require the College to furnish the Union with information. The Union cannot sit on its haunches and then require the College to demonstrate that it has not violated the Collective Agreement. The Union must make a positive effort to collect and collate information about the work force and generally monitor the way the College has administered 'the Collective Agreement so.as to be in a position to-adduce evidence in a more 3ositive and specific manner in order to demonstrate there has been a violation of the collective Agreement. In the case of an alleged violation of Article 2, the Union must demonstrate how the College has failed to give preference to full-time positions over sessional and partial load positions. In .the case of an allegation that .the College has subverted the bargaining unit, the Union must demonstrate how the College has failed to give preference to the continuation of full-time positions over partial load, part-time, or sessional positions. In either case, there will be a requirement to :review the courses being taught and the status of the persons teaching those courses. If the Union properly monitors the College's administration of the Collective Agreement and retains and collates information concerning the various courses being taught and~by whom, it should not be difficult to produce such evidence at arbitration. In summary, it is our view that the mere presentation of a list of various classifications that are now teaching is not sufficient to establish a prima facie case, and the Union must go further.and more' specifically indiCate how the College has violated the Collective Agreement before the College is called upon to justify its position. [emphasis added] Counsel for the College states that the decision in Re St, Lawrence College "clearly distinguishes between situations governed by ' Article 2, where part-time poSitions are irrelevant, and situations Where a previously existing full-time position has not been continued as a full-time position, in which case the use of part-time pOsitions maY be considered'in determining whether the full-time bargaining unit has been 'eroded'L Counsel asserts that the decision in Re St. Lawrence College establishes that part-time positions are irrelevant to determining whether there is a full- time position for the purposes of article 2. Counsel further asserts that in the instant matter the Union has not· grieved that the College has eroded·· or subverted the full-time bargaining unit by not continuing previously existing full-time positions and replacing them with part-time positions. · While we will discuss the deciSion in Re St. Lawrence College· in further detail 'below, we note that the board indicated therein that partial- load employeeS were not members of the bargaining unit.. Such is not the situation in the matter before this Board. The bargaining unit consists of full-time and partial-load employees; it is not exclusively a· full-time bargaining unit, as referred to in Re St. Lawrence College. To the extent that some of the rationale in Re St. Lawrence COlleg® is based on· an exclusion of partial-load employees, it is not applicable to the matter at hand. 20 Additionally, the factual situation in Re St. Lawrence COllege is quite different from that'in the instant matter. In Re St; 'Lawrence College full-time positions that had been vacated through retirement and death had not been re-filled by the College with fuli-time-employees. Instead, they had been filled by partial-load and/or sessional employees. The instant alleged breach of article 2 does not involve the assertion that previously existing full-time positions were not Continued as such. DECISION Respecting the request fOr particulars, and having carefully considered the Submissions of the parties, the Board concludes 'that the .College shoUld provide · the Course Outlines and Timetables sought by the Union,'which includes those relating to part-time employees. : The comment in Re St. Lawrence College, at p. 9, that a union "cannot adopt a scatter approach of a general nature and force the College to respond" and its statement: at p. 10, .that "the Union cannot sit on its haunches, and then require the College to demonstrate that it has not violated the Collective Agreement" do not accurately describe the Union's conduct in the instant matter. 2] , The instant parties have agreed to disagree over just what was said respecting this grievance at the relevant UCC meeting, pursuant to the provisions of article 7.02(vi). As noted, article 7.02(vi) provides that "if requested by the Union Local, the College shall explain its rationale for its application of Article 2, Staffing ..,". In addition, article 7.02(vi) requires the College to consider the union's representations "with respect to the feasibility of assigning work on a full- time baSis rather than on a sessional, partial-load or part-time basis". Because the Parties are not asking this Board to resolve their factual disagreement over what exchanges took place in their relevant UCC meeting, the Board is not in a position to draw adverse inferences concerning the alleged failings of either party in matters relevant to the uCc meetings. As well, because the parties have agreed to disagree about the exchanges that took place, this Board cannot adOpt as accurate the College's Characterization that the Union is on ~a "fishing expedition'' in seeking at arbitration its requested prOduction of documents. As set out above, in Re ·George Brown College (Knopf), the board held that the Union was entitled at the UCC meetings to Production of the very non full-time Course Outlines and Timetables sought by the Union in this arbitration. If they are relevant to the discussions at the UCC meetings which involve the College's explanation for its staffing decisions under article 2 and the Union's representatiOns regarding the feasibility of assigning 'work on a full-time (rather than a partial-load, sessional or part-time) basis, it is hard to understand why 22 they would, not be releVant to a grievance respecting an alleged breach of article 2, where such matters are under consideration. Moreover, as further set out above, in Re George Brown College (Devlin), the board concluded that the union was entitled to the production of the same Timetables and Course Outlines sought by the Union in the instant matter. Accordingly, the Board is Satisfied .that the Course Outlines' and Timetables are relevant to the Union's assertion that, in breach of article 2, the College has.failed to give preference to regular full-time teaching positions. ' These documents will assist the Union's evaluation of the "body of work" bY enabling it to look at such factors as teaching and enrolment patterns, course times, course objectives, respective methods of evaluation '.for the various courses; pedagogical requirements and similarities and differences between courses. Of particular importance to the process, the Union will be in a position to potentially narrow its grievance with this information and then to advise the College precisely what hours it asserts should be grouped into full-time positions, in alleged, compliance with article 2. The Board is mindful of the College's concern respecting confidentiality in respect of the production of Course Outlines and accepts the Union's undertaking that it will use the documents for the sole purpose of the instant arbitration. 23 The Board further accepts the time-frame requested by. the Union, i.e. that " the documents produced should date back to 2002 in order to provide the Union with adequate perspective to understand the teaching patterns that have been established bythe College over the last few years. Such a time-frame may well be relevant to the issue of "operational requirements", among other matters. We 'turn noW to the College's request fOr an order .excluding the consideration of part-time teachers or their work in this article 2 grievance.. The plain reading of the words used in article 2 reveals that the parties have not directly included the regulation of part-time teachers in this staffing provision. In article 2.02; the parties have established the principle that the College will give preference to regular full-time teachers (who .regularly teach more than 12 and less than 18 hours per week) over partial-load teachers (who are in the bargaining unit and who regularly teach mOre than 6 and up to 12 hours per week). In article 2.03 A, the parties have given further preference to regular continuing full-time poSitions over sessional positions. Sessional positions may be for full-time hours but they are not in the bargaining unit; they 'are appointments that may be for no more than 12 months' duration in any. 24 month period. 24 Part-time teachers are also not in the bargaining unit. They are defined in article 1.011 NOTE A, as.teaching 6 hours per week or less. Typically, they might be used to fill spaces in the teaching timetable that are left after the bargaining unit teachers (the regUlar full-time and partial-load teachers) have been assigned, as well as non bargaining unit sessionals. The parties have not chosen to include any provision in article 2 to express a principle that the College will give preference to full-time positions over part-time positions. in passing, we note that, in contrast, in subsection iii of article 27.051 dealing with layoff and involuntary transfer, the parties have expressly stipulated a preference for full-time teachers .over part-time teachers, as Well as over partial-load and Sessional teachers in circumstances where the College plans to lay-off or reduCe the number of full-time employeeS: Layoff and Involuntary Transfer 27.05 When a College plans' to laY-off or to reduce the number of full-time employees ... or plans the involuntary transfer of such. employees ... the following procedure shall apply: (iii) If requested by a member of the cESc [College emploYment Stability· Committee] ... the CESC shall meet for the purpose of discussing the planned staff reduCtion, the circumstances giving rise to the reduction, the basis for the selection of the employees affected and the availability of alternative assignments. It being understood that the College reserves the right to determine the number and composition of full-time, partial-load and part-time or Sessional teaching positions, the College shall give preference to continuation of full-time positions over partial-load, part-time 25 or sessional positions subject to such operational 'requirements as ... [emphasis added] With essential clarification, this Board agrees With much of the decision in Re Algonquin. College, a case relied on by the College in this matter. For reasons set out below, however, we do not agree with the College~s submission that this case establishes that no consideration may' be given to part-time hoUrs in this article 2 grievance. At p.10 of'Re Algonquin College, the arbitrator stated, Because the parties have failed to include part-time appointments within the restrictions in Article 2, this leads to the conclusion that Article 2' does not operate-to restrict the use of part-time appointments. .We agree that article 2 does not operate to directly restrict the use of part-time appOintments. At p. 11, the arbitratOr's reasoning continued: The parties consciously chose to give preference to full-time positions over partial-load and sessional appointments. They did not restrict the use of part-timers who are discretely defined as a status quite different than partial-load or sessionals. Therefore, it cannot be implied or conclUded that part-time appointments would encompass sessional or partial-load appointments as one group. Once again, we agree. Proceeding on, the arbitrator stated, Instead, part-timers must be viewed as a separate entity that is recognized in various parts of the collective agreement, but not factored into staffing protections provided in Articles 2.02 and 2.03 A. This leads to the inevitable conclusions that an arbitrator has no jurisdiction to interfere with staffing deciSions with respect to the assignment of part-time positions over full-time positions. To the extent that this statement constitutes a determination that, in the normal course, the parties did' not intend that a board of arbitratiOn would directly interfere with the College's assignment of part-time staffing decisions, this Board agrees. It is this Board's further view, however, for'reasons set out below, that hours taught by part-time teachers, and thus part-time positions, may be affected through an article 2 grievance. The Board concludes that part-time hours are available for consideration by the Union and a board of arbitration in an article 2 grievance in circumstances where it can be demonstrated that the staffing scheme agreed to by the parties,' as reflected in article 2, as situated in the collective agreement as a whole, is being undermined by the manner in which part-time hours are being assigned. As further discussed below, if hours are being assigned to part-time positions in a manner that is thwarting the staffing scheme agreed to by the parties in article 2, the assignment of suCh part-time hours risks .opening the door to an erosion of the bargaining unit and/or the circumvention of the collective agreement. The END NOTE at p. 25 of Re Algonquin endorses this Board's interpretation that the essence of the determination in Re Algonquin was that article 2 does not encompass the regulation of part-time teachers or their positions and does not anticipate interference with the part-time .teachers or their hours, as long as they are not assigned in a manner that erodes the bargaining unit and thwarts the staffing priorities agreed to by the ·parties. The END NOTE reveals that the arbitrator deemed it would have been appropriate address the 27 hours of work of'part-time teachers in an article 2 grievance, "...[i]f there had been any evidence that the staffing patternS had been designed or intended to erode the bargaining unit or circumvent the collective agreement...''. It is apparent from the END NOTE that the arbitrator had determined that in the face of any evidence of abuse or potential abuse by the College in making its staffing decisions, the College could not hide behind the fact that article 2 does not directly regulate part-time teachers. The Board is further satisfied that the decision in Re St. LaWrence College, discussed above, similarly determined that the College cannot"erode the bargaining unit through the use of part-time employees and that in the event of an allegation of such erosion through the aSsignment of work to part-time employees, the board of arbitration would be required to. consider the assignments of the part time teachers in the context of reviewing the overall workload in the bargaining unit. This Board endorses this interpretation of the · collective agreement. The board in Re St. Lawrence College unanimously came to a number of important conclusions,' some of which may be summarized as follows: 1. That "absent bad ·faith or anti-union animus the utilization of part-time positions does not constitute a breach of Article 2" (p.7); 2. That, "it may very well be that in the course of considering operational requirements [under Article 2] them may be some 28 incidental evidence to be considered in dealing witb 'part-time employees ..." (p.7); 3..That, "if a vacancy had been created in a full-time position, the Union would be entitled to grieve either on the basis that there had been a violation of Article 2, in that preference Was not given to full time positions over seSsional or partial load persons, or, alternatively, in a general way, by maintaining the College had eroded the bargaining unit by assigning the work to part-time employees" (p.8); 4. That "[t]hat would require' a bOard of arbitration to assess the full-time position and to consider the Part-time assignment in the context of renewing the overall workload in the bargaining unit and the operational requirements that cauSed the College to assign the work as it did" (p.8); and 5. That the College, thereby, "is not allowed a free hand in eroding the bargaining unit" (p. 8). In keeping with the ENDNOTE in Re Algonquin Colleg®, and consistent with this Board's interpretation of Re St. Lawrence College, this Board does not accept the contention of the College in the instant matter that its use of part-time employees is entirely unregulated under article 2 as long as the they do not exceed their maximum 6 hours of teaching per week. We do not accept the assertion of the College that it can assign as many part-time.teachers as it wants without recourse under article 2. Clearly, such staffing practices could open the way to an abuse of the staffing priorities agreed to by the parties in the collective agreement, which, in turn, if left unchecked, could open the door to a Circumvention of the collective agreement and/or an erosion of the bargaining unit. · 29 ,Accordingly, while this Board agrees that article 2 does 'not directly regulate part-time teachers or their positions and that part-time teachers are not under direct consideration in this article 2 grievance, we do not agree with that portion of the College's submission that would further assert that the part-time hours taught by part-time teachers are walled off from access to the Union and consideration by this Board in an article 2 grievance. Instead, and in keeping with the END NOTE in Re Algonquin College, and the Conclusions reached in Re St. Lawrence College, this Board is of the opinion that the collective agreement~. . anticipates that the Union may rely on part-time hours in an article 2 grievance when the Union is able to demonstrate a prima facie case that their .Use is undermining the staffing scheme agreed to by the parties in article 2 and/or eroding the bargaining unit and/or circumventing the collective agreement. The parties have agreed to staffing priorities in article 2, as understood in the context of the collective agreement as a whole. Through. the express provisions of article 2, preference has been given to regular full-time positions over both partial-load and sessional positionsl It is apparent from a reading of the collective agreement as a whOle, hoWever, that the fact that full-time positions are not expressly given priority over part-time poSitions in article 2 does not place the part-time positions on a footing that is higher than those expressly covered by article 2. To the contrary, is clear from the combinatiOn of multiple provisions of the agreement that the hierarchical status of part-time positions falls below that of full-time, partial-load and sessional positions. 30 The priority of fUll-time over part-time positions' is reflected in article 27.05 respecting layoff, referred to above: 27.05 When a College plans to lay-off.... (iii) ... It being understood that the College reserves the right to determine the number and composition of full-time, Partial-load and part-time or sessional teaching positions,' the College shall give preferenCe to continuation of full.time positions over partial-load, part-time or Sessional positions sUbject to such operational requirements as ... Moreover, the Priority of the full-time, partial-load and sessional over part-time is reflected in the March 31, 2004 Letter of Understanding. respecting the Displacement of Part-time Employees, which reads, in part, aS follows: Re: Displacement of Part-Time Employees This will confirm the advice given in negotiations that it is the College's intentiOn that failing placement under 27.06 A (iv) of a full-time employee who has completed the probationary'period, the College will give reasonable consideration to the written request of a full-time employee about to be laid off to continue a full-time assignment by displacing two or more part-time employees and the employee .shall set out: (a) the names of such part-time employees, each of whom, have lesser continuous service with the College. Upon receipt of such written request, the College will consider the feasibility thereof taking into account such features as: · (b) possible reduction in efficiency, quality of performance or adverse effect upon the program objectives; and ' , (b) the competence, skill and experience to fulfill the requirements of the positions concerned.. While this letter recognizeS the importance of the part-time Position, it is' consistent with the conclusion that Part-time positions sit at the end of the staffing hierarchy. It may well be that the reason the parties did not include a reference to part-time positions in article 2 is because it is generally underStood that.with their restriction, by definition, to teaching 6 hours or less, they are intended to be used to fill those spaces 'in the schedule that are left after the assignment of. regular full-time, first, and partial-load and sessional, second, subject to operational requirements. Part-time teachers fit within the staffing scheme set out in 'article 2 although they are not directly regulated by it. They do not stand in complete isolation; they do not stand behind an impenetrable wall where, without recourse by the Union, they can be utilized in a manner that er°des the bargaining unit or. thwarts the parties' staffing scheme as incorporated in article 2, (with its stipulated preference' for regular full-time positions over partial-load 'and' sessional positions) and as understood in the context of the collectiVe agreement as a whole. 32 While article 2 does not expressly regulate part-time positions, the collective agreement as.a whole clarifies their place in the'staffing hierarchy. The collective agreement as a whole ensures the visibility of the part-time teachers and their hours. In article 27.12,' the College is 'required to notify the Union periodically of all part-time personnel hired or terminated. In article 7.02(vi), the College is required, when asked by the Union in a UCC meeting, to explain its rationale respecting its use of part-time teachers and t° consider the union's submissions regarding the feasibility of assigning work on a full-time basis rather than on a part-time, sessional or partial-load basis. Moreover, the production bY the-College of documents related to part-time teachers has been required for the purposes of the article 7.02(vi) UCC meetings (see Re George BrOwn College (KnOpf)) as well as for the arbitration of article 2 grievances (See Re George Brown College (Devlin), Re GeOrge Brown. College (Shime) and the Board's decision in the instant matter, set out above.) MoreOver, in article 27.05, when the College plans to lay-off or reduce the number of full-time employees, the COllege is under an obligation, subject to operational requirements, to giveI preference to the continuation of full-time positions over partial lOad, part-time or sessional positions. As well, as. set out in the Letter of Understanding dated March 31, 2004 respecting the replacement of part time employees, if a full-time employee fails to find placement' under article 27.06A(iv) in a lay, of situation, the College has undertaken to consider the continuation of that full-time employee by means of the displacement of tWo or more part-time employees. The provisions of the agreement, when read as a whole,', reveal the intention of the parties that the part-time employees,· who are outSide the bargaining unit, are at the Iow end of the hierarchy.. While the part-time teachers are not in the bargaining unit, through the various terms of the collective agreementl the parties both have recognized the importance 'of their use in the staffing scheme established in the agreement and have ensured that their use will be in coordination with full-time, partial-load and sessional teachers, and not in isolation from, or in conflict With, them. Given the express protection provided within the collective agreement for the preServation of full time positiOns by placing express limits, .sUbject to operational requirements, on the College's use of partial load and sessional employees, this Board cannot adopt the position of the C°llege that the parties intended that full time positions would have no protectiOn from the establishment of part-time positions which are excluded from the bargaining unit. Canadian arbitral jurisprudence has long reCognized that in the operation of a collective agreement, effect must be given to the scheme of job classifications provided within it. It is well established that having agreed to the performance of certain work by employees in a bargaining unit, it is not open to an employer to undermine that obligation by assigning the same work outside the bargaining unit ina manner that conflicts with staffing priorities given to the members of the bargaining unit. Accordingly, given the staffing priorities set out-in article 2, in particular, as situated in the collective agreement as a whole, and given the parties' arrangement for the ongoing visibility of part-time hours through various provisions of the agreement, as discussed above; this Board is satisfied that part- time hours may be relied upon by the Union and cOnsidered by a board of.. arbitration in an article 2 grievance where the Union can establish a prima facie case that the-College has assigned hours to part-time positions in a manner that either intentionally or unintentionally functions to undermine the staffing scheme set Out in the collective agreement and/or erode the bargaining unit and/or circumvent the collective agreement. In such circumstances, the hours of part-time positions become available to .the Union as part of the "body of work,, from which the Union may argue a breach of the article 2 preference for regular full-time over partial-load or sessional teachers, subject to operational requirements. In seeking to demonstrate a prima facie case respecting an alleged misuse of part-time hours, the Union may look to and rely on the full "body of work". While such inappropriate part-time assignments would be rare, if they Would occur at all, it is the conclusion of the Board that the staffing scheme agreed to by the parties in the collective agreement provides for an ongoing Protection against the potential for the abuse of'part-time positions by ensuring the ongoing visibility of the part-time hours and by ensuring that an impenetrable . wall is not placed around part-time hours. The importance of avoiding the wall 'around part-time hours is underscored by the College's assertion that its use of part-time teachers is entirely unregulated by article 2 and,. thus, that it may. Create as many part-time positions as it wants without recourse by the Union under article 2. i This access to part-time'hours in an article 2 grievance is not aimed at the regulation of part-time positiOns; nor does it create in article 2. an express preference for regular full-time positions over part-time positions. There is a clear and appropriate place for the assignment of part-time Positions that is not regulated by article 2. Rather, the access to part-time hours set out above is directed at ensuring the orderly operation of the article 2 preferences agreed to by the parties' of regular full-time over partial-load and sessional teachers. It is aimed at ensuring the full visibility of hours that normally would be assigned as either partial-load, Sessional or regular full-time but, instead, may have been assigned as part-time hours in a manner that appears to be thwarting the staffing priorities agreed to by the parties and/or causing an erosion of the bargaining unit. If the Union establishes a prima facie case that the College has aSsigned the part-time teachers 'in a manner that is undermining the staffing scheme agreed to by the parties and, thus, is undermining the bargaining unit, then, subject to operational requirements, those part:time 'hours, in the normal course, would have been allocated in the full-time, partial-load, sessional mix and, as such, under normal circumstances, would have been directly involved in an article 2 grievance. Accordingly, the Union is entitled in an article 2 grievance to · access to those part-time hours that' it can demonstrate, either intentionally or' unintentionally, have been mis-asSigned as part-time hours and should have been assigned in the full-time, partial-load, sessional mix at issue in article 2. To summarize, the Board concludes that while article 2 does not directly regulate part-time positions or part-time work, th'e Union has the right to full disclosure of documents relating to part-time positions and/or work. Moreover, if, upon review of the documentS and the full "body of work,', the Union establishes a prima facie case of a misuse of a part-time position or positions for the reason that it undermines the staffing scheme set out in article 2, when read in the context of the collective agreement as a whole, (which we conclude is a preference for regular fUll-time, first, Partial-load and sessional, second,, with part- time then available to fill remaining places in the schedule, subject to operational requirements), then the union may have access to the part-time hours in advancing its assertion that the College has violated the article 2 preference for regular full-time over partial-load or sessional. 3'7 Accordingly, fOr the reasons set out, the Board denies the College's request for an order excluding consideration of hours that have been assigned to Part-time positions in determining the Union's alleged breach of article 2. In addition, for the further reasons set out, the Board directs'the College to produce for the .Union the Course Outlines and Timetables it requested, which was for all non regular full-time employees, inclusive of partial-lOad, SessiOnal and part-time teachers and to do so back to 2002. In keeping with the Union's undertaking to the College, the Board notes its expectation that the Union will advise the College prior t° the next schedUled hearing of the hours it allegeS are being assigned in alleged breach of the article 2 preference for regular full-time positions, i.e. those hours it maintains Should be grouped into regular full-time positions for the purposes of article 2. This matter will be scheduled for continuation Upon the request of either party. Dated at Toronto this 29th day of July, 2005. Chair "Sherdl Murray" concUr Union Nominee "Ron Hubert'' I dissent for reasons set out below. College Nominee DISSENT O.F COLLEGE NOMINEE, MR. RON.HUBERT This is a Union grievance alleging the College has act~ in br©a~h ofArticlc 2 of the Agreement by failing to give Preference to full-time positions in the Art and Design Division. 'The grievance recluests the College immediatelY post and fill 26 positions i~n this Division. For its part, the College requested written particulars of each alleged fUll-time position and how constituted, including coUrses, programs and persons-teaching the courses. The Union in response alleges inability to respond and pr~cnt 'a prima facic cmo unless the College supplies various intbrmation for "all non-fUll-time employees" working in this. Division Fall 2002 to Winter 200:5. Since this is an alleged breach of Article 2, Which requires the College give preference to the designation of full-time positions as regular rather than partia~ load teaching positions defined in Article 26, subject to operational requirements, thc College sought a preliminary ruling on the intm'pretation of Article 2. In an attempt to not undertake unnece, asary work and to significantly minimize the length of the case, the College asked for an ord~ exoluding consideration of part-time assi~ments or positions in respect of the alleged breach ofArticle 2, ~ emphasizin~ its position that Article 2 does not regulat~ or aff~.~t either pan-time positions or part. time work, ' The Board has denied the College req~si and fbr reasons to fell°w herein, I 'am.unable to .- cora.cur in the reasoning of the decision. In its decision the Majority has adopted an interpretation o£ Article 2 of the Agrcdrnent which it~ not ~pported On its t'a~ and on the plain reading of its terms, nor st~pported bY other terms of the agreement. Instead, the Board has in effect taken the logic in part of the SC LitwrCnc~ arbitration by O. Shime, which de. alt wi~h/t specific factual set of circumstances, not applicable in this case and wh/ch will be .qo. mm~ted upon· further heroin. Dealing first with the matter of interpretation of Article 2 that thc pa_rti~s have adhered to without changes in the language for many years. In accordanc~ wilh Articl~ ii Management FUnctions, the College has lhe rr, sponsibility and the right to determine COmplement and classification of personnel roquir,~i froTM time to time, subject to the provisions of Re Agrcemertt. Article 2.02 requ/res the College t°//ye preference to full-time positions'rather than partial-load positions and Article I!,03A provides for preferenc~ for full-time positions over sessional positions subject to operational requirements, Nowhere in Article 2 of the Agreement is there a requirement to g~ve Preference to regular full-time over part-time employees. This is t° be conlrnsted with Article 27.0.5(iii), which, deals with preference for full-time positions where there is a layoffphnn~. Article 27.05(iii) contains wordinl/very similar to Article. 2.02 and applicable over pan-time positions. 4O If the.parties to 'this.agreemcn(-had meant the Articl~ 2 preference to apply to part-time 'P0sitious, they .would have said so~ Another example is Article ?.02(vi) which mandates the College to consider any r~'Tresenta6on which.the~..Uni0h Local may make with respect to assigniug of work on a full-time or a seSsional, partial'load or pan-time basis and with respect to thc feasibilitY of assigning work on a full-time basis rather than on a sessional, part-load or part-time basis. Should the College fail to properly conSider such representation, the Union would be entitled ~ grieve. Thru'crete, where the.parties ber~ intended to place some restrictions or conditions on the College's use of part-time positions, they have done so. In Article 2 they have nOt done so. The first apparent case to consider ~his waz between Algonquin College and OPSI~U, the decision of Arbitrator Knopf, dated May 27, 2003. This decision highlights the critical factOrs an arbitrator must C°nsider in interpreting a provision of an Agr~ment as well as her particular analysis of this agreement and the provisions of Article 2.02. Various references require note as they relate to ~e C°llegc request to exclude consideration of part-time employees. At pp. $ ' I l, the Award reads as follows: The precise wording of Article 2 does give rise to a hierarchy of staffing imperatives. The clause does require management to "~tv¢ preference to the designation of ii, Il-time positions." Bat thc clause deed not do thi~ in absolute terms. The clause requires preference to be given over partial- load positions in Article 2.02 and over.sessional appoinunents in Article 2.03A. In addition, the Article lists several 0perati°nal requirements as exceptions. Nowhere ia Article 2 does the eolleeti'~e agreement say preference must be given to full-time positions over part-time appointments. Indeed, nowhere in Article 2.02 or 2.03A Sre part-time appo/ntmeuts even mentioned. 0ny emphasis) In contrast (to another non-College decision), the Colleges' collective agreement does have ' specific language relating to the staffing of teaching appointments. By creating specific restrictions and yet omiUing reference t° pm-timers, it can only be concluded that the collective agreement does not intend to restrict the use of part-timers as it does the use of sessional~ and partial-load appointments. The frequent references to pm-timers in other provisions of this 41 collective agreement sug§cst and indicate that the parties consciously designate when and where part-time teaching assignments are tobe affectcd or governed bythe collective/tgreement. The obv/ous examples of this are in thc layoffand recall provisions as well as for thc UCC meetings, Because the parties have failed to include part.time appointments vvithit~ the restrictions in Article 2, this leads to the conclusion that ,A~t/ele 2 does not operate to restrict.the use of part-than appointments. (my e~ph~sis) This conclusion may appcar counter-/ntuitive at first. Why would thc parties not be.deemed to restrict part-time assignments when the obvious pUrPOse of Art/tlc 2 is to give .Preferertce.to full- t/me positions and protect the intcgr/ty oft. he'bargaining unit as long as operat/onal, rcquirem~ts can be met? Without any contractual restrictions on thc use of part-timers,, a college might be tempted to staff'in a way that could ewde a bm'ia/taing unit by making multiple part-tim· assignments. However, an arbitrator cannot make decisions based on intuitive responses or impose his/her own preferred collective bargaining or pedagogical models.- An arbitrator's role is to discern, interpret and appl), the intentions of the parties on the basis of the language they have adopted in their collective agreement. (my It is Presumed. that the parties adopted th? languag~ of Article 2 for rational reasons. They'have retained this language for m/my ),cars thwugh severn] rounds of collective bm'gaining. The parties consciously chose to give preference to full-time positions over partial*lo~d and Sessional appointments. 'They did not restrict the use of part-thners who are discretely defined as a status quite different than partial-load or sessionals. Therefore, it ettn~ot be impfled or C°nc!uded. that part-time appointments would encompass sessional or partial-load as one group, Instead, part-timers must be viewed as a separate entity that is recognized in various parts · of the collective agreement, but'not factored into staff'mg protections provided in Articles 2.02 and 2.03A. This leads to the inevitable conclusion that an arbitrator has n° jurisdiction to interfere w/th staffing decisions with respect to the assignment of part-time positions over full*time positions. (my emphasis) These statements completely support the Colteg¢ posit/on that the Agre~ent does not intend to restr/~t the use of part-t/mcr~ ns ~ts usc ot'sessionals and partlal-load appointments. This Fanshawe Award reject9 this logical interpretation of Article 2102. The ~bitrator continues: "Thc issues and erguments raised in the case at hand have brought the part~time jurisdict/onal issue to the s~face ibr the first t/me. The other decisions cannot be read as having established the effect of A**ticle 2 on part-timers or the jurisdi¢*.ion of an arbitrator to review pert-t/me ~ssignm~nts. T~ey simply (lid not deal with this issue. The conclusion in this Award was corn.polled by the current lan~a§e end the fa~t that the. issue was placed squazely b~fore me for determination. If there is ttn¥ opczationn! or practical need to adapt thc langt~nge to the ct~rrent rcsJitics of the colle8¢ sector, this can and must bc dealt w/th nt the bargaining table or at the UCC mee~ngs." Thc conclusion reached by Arbitrator Knopf on page 11 reads: . .. 42 "The result of this ruling is that,the arbitrator only has jurisdiction to look at the number of non; full-time hours being taught by sessional or partial-load appointments to s~ if thoscassigmnents have been made in compliance with Article 2." · This is thc conclusion and ord.' re. quOtA by the College and one I would have reached, Considerable emphasis has be~n given in this award 'to.the "t~nd Note" in the Algonquin decision, The End Note/n no way detracts t'om the basic interpretation'adjudicated in this award. Part-timers are excluded from considerations of an Article 2 ~ievance and nothing iQ the collective a~eement detracts from this interpretslion. The Union has made a bold assertion claiming 25 full-time positions without presenting any relative information. The issue of'fhe integrity of the bargaining unit is not an issue at hand nor even contemplated and raised by the Union. To go beyond the fundamental PrSvisions °i'the All~onquin AWard is ~o read into the Agreement proVisions that do not exist. The l~nd No~e is speculation and the commen~s do not r¢flcc! a factual decision on a specific set of circumstauces.. Turning now.to the'St[ Lawrence College and OPSEU decision as it relates first of all to tl~e iuierpretaliou of Article 2. On page 6 Arbilrator Shirne makes thc followinl~ determination in respect to Article 2: "In considering the. articles in issue, we find ourselves in general a~'eement with the observations made by the learned arbitrator in Algonquin College, Article 2.02 and 2.03A are resu'ictive only in the sense. fi.at they rcquirc preference to be given to full-time positions over partial-load and over sessional positions, subject, of course, to operational requirements. The . College is no! restricted to using pan'iai.load ~eaching positions, nor is it resa'icted to ~ing sessional teaching positions, and thc only rcstriction contained, in Article 2 is the requiremeni t.~m! preference be given to full-time positions, subject to the conditions contained in both articles. What was patently obvious to ~be learned Arbitrator in Al§onquin Coiled:e, and which had not been really addreSSed in previous cases, is thai no mention is mad~ of part-time positions in Article 2. AcCOrdinllly, absent bad faith or anti-union animus the utilization of part-time positions does not constitute a breach of Article 2, since, there is no specific rec~ir~neut, as the. re is in thc case of'partial-load and sessional posi~icr~, that preference be given ~o full-time positions over part-time positions." 43 Contrary to this Award, the Shime decision supports'the Algonquin deCision of Knopf by concluding that absent bad faith or anti-union animus the use of pail-time POsitions does not cofiaticute 9 breach of Article 2 and that thee is no requiremen! of preference to be g/yon to full- time positions over part-time positions. '. In this case there is no allegation of bad faith or anti-union animus and any'Consideration of the hiring of part-time employees is irrelevant. Units there are specifics adduced to supp°rt such an allegation, requiring production of all information respecting part-timers'is aa exerCise without purpose. Arbitrator Shime's conclusion on the interpretation of Article il is to be preferred to the decision in this Award. He states on PagdT: "While we acknowi~ge the use of part-time employees does not constitute a violation of Article 2, it may very well be in the course of considering operational requirements there may be some incidental evidence to be considered dealing with part. time employees, and we do not, at this early stage of the proceedings, in the absence of a specific factual context, excl~ie the POssibility of such evidence. The introduction of such evidence must be decided on a case'by case basis." Since in these proceedings to date there is no evidence presented that would require the College to substantiate its use of partial-load or sessional emploYees, the St. LaWrence decision .' of Arbitrator Shimc's is instruotiw asto the ontn and burd°n of proof, On page 9 he states: "in the matters referred to, the burden of proof lies with the Union to demonstrate (1) whether the College is in violation'of Article 2,by not giving preference to full-time posilions, partialTload or sessional teachers, and, akematively, (2)whether the College is in violation of the general principle not to erode the full,time bargaining u~it. (my emphasis) The obligation of the Unica is to establish ap~im~zfacie case that the College is in violation of the Collective Agreement, It is not sufficient to merely files list of sessional, partial-load and part-time employees. Quite simply, it is the College's right to determine complement -,md.to hire . employees into those positions..To merely state that the College has done So is simply tc affirm it~ rip, hr. The Union must.go tis'thor a~d establish how the College has violat~ the Collective Agreement; it cannot adopt a scatter shot approach ora general nature ar~d force the College to respond." 44 And furthcr, the Union responsibility is reaffirmed on page I 0; "Thc Union asa party to the Colleotive Agreem~t has a responsibility to monitor the Collective Ag~eeme. nt and its administration by the College. This Collective Agreement has a.numb~ of a.-fides that require the College to furnish the Union with information. The'Union cannot sit on its haunches and then require the COllege to demonstrate that it has not violated the Coll~tive Agreement. The Union must make a positive effort to collect and cOllat~ information about the work forc~ and genmally monitor the way the College has administered the Collective ' Agre~msent ~o as to I~ in ~t position to adduce evidence in a more positive and speeifio manner in order to demonstrate them has bern a violation of the Collective Agreement. In the case of an alleged violation of Article 2, the Union must d~nomtrate how the College has failed to give preference to full-time positiorm over sessional and. partial-load positions. In the case of an allegation tlmt Re College has subverted the bargaining unit, thc Union must demonstrate.how thy Collegv ha~ fnilr.,d to give pref(~rence to _the ¢onttnuatlon of f~fll-time positions over partial-load, part-time, or sessional positions. (my emphasis) In ~ither c~, there will be a requirement tv review the,courses being taught and the status of the persons teaching those courses. Ifth~ Union properly monitors the College's administration of the Collective Affr~ment and retains and collates information concerning the various cours~ being taught and by whom, it should not be difficult to produce such evidence ~st arbitration." In th~ St. Lawrenoe case the facts were that full-time teachers had vither left the College or died and had not.b©vn rePiac.~ by full-time teachers.' Arbitrator Shime in those circumstances talked'.about the possibility of"eroding the full'time bargaining unit" by the use of Part-time employees. Bycontrast, the case bet'ore this Board °f ArbitratiOn contains no allegation that thea'e were once occupied fulbtim¢ positions that were not replaced With full-time employees, The Union's grievan'oe is concerned with creating full-time positions iht.the tint.time. In my opimon, the. Majority fails 'to-grasp this crucial difference between the ~;t, Lawr~nc~ ca~e and this After concluding that Article 2 does not regulate the use ofpart4ime, positions, the Majority award states at page 3'4 that "this Board cannot adopt the position of the College that the parties intended that full-time positions would ha'ge no protection from the ~tablishment of part-time positions which are excluded fi.om the bargaining unit". The only evidence of the 45 'patqie~' intention is what they have written in the Collective Agreement. In stark contrast to lay off situations (Article 27,05 (iii)) and College Commit'tee discussions (Article'7.02 (vi)) Article 2 ' is deafening in its silence on the regulation of the College's use of part-time positions.' I am forced to the conclusion that the Majority's decision is circular in it~ reasoning and totally inconsistent ·with and outside o/'the t©rms of the Collective Agreemem. The Majority award alters thc parties' bargain. In conclusion, ba~ed on the clear and plain reading of Article 2, the interpretation by Arbitrators Shime,and Knopf in St. Lawrence and Algonquin that the issue of usc of pact-timers is beyond the jurisdiction of thc arbitrator except/n a case of bad faith or anti-union animus, there is no basis tbr conskicration of part.mots in respect to Article 2. For all thOSe reasons. production of documents or information concerning part-time positions should not be ord~ed. "R.A. Hubert" College Nominee July 29, 2005 46