HomeMy WebLinkAboutUnion 04-10-16BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES U!IION
(thee "U~ion" )
- AND -
(the "College")
AND IN THE MATTER OF UNION GRIEVANCE ~01C069 (ACADEMIC)
BOARD O~ARBITRAT.ION Robert D. Howe. Chair
Michael Sullivan, Union Nominee
Robert J. Gallivan, coiiege Nominee
For the Union Caroline V. (Nini) Jones, Counsel
Gary Fordy~e
For. the College Margaret Szila~sy, Counsel
Linda Ballantyne
Corrine Campbell
Tom Pickerd
Horace Knight
A hearing in the above matter was heid in London, Ontario, on
September 18, 2002, and September 14, 2004. ~ .
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Oct 2004 11:40 ROBERT D. HOWE & LYMDR G. 905-G34-355I P-4
P R E L I M I N.A R ¥ A W A R D
This preliminary award pertains to a Union grievance
which reads a~ follows:
To: Gall Rozeil
From: Paddy Musson
Re: ~rievanee on Staffing and
Relaued Responsibilities
Date: November 6, 2000
Local 110 grieves that the College, by failing to
assign to USe bargaining Lhnit certain "persons" who are
perfor, mi~g teaching duties, has failed to comply with
Articles 1, 2, 6, 10, 11, 14, 26 and 27 as well as
Appendices I, VIII, and IX, the~Classification Plan and
the CCBA.
As remedy we seek a declaration ~rom the. Board that
"personB" teaching must be ~lassified as part-time,
partial load,' regul~ur or sessional employees wi%h all
the rights for bargaining u~it members that flow from
the collective a~reeme~t.
In the Step ~ response to t~at grieYance, Ms. Rozell,
follows:
The College has reviewed the information you shared in
0~r meetin9 of November ~7, ~000. It appears from the
.information shared at the meeting that t~e Union's
position is the Collective Agreement prohibits the
College from.contracting out.
The College does no~ believe the issue you raise is a
grievable matter a~d therefore not arbitrable.
In the alternative, the College does'not believe the
Collective Agreement prohibits contracting out a~d
therefore.we [do] not believe there has been any
violation o~ the Collective k~reement and'the grievance
is denied.
: since the Union did no= agree with that response, the
10/18/2004 11:~9 P~L I~RE ~OL~ND
Oct 2004 11:40 ROBERT II. HOWE
grievance proceeded to Step II, resulting in the followin~
response:
In reviewing the information shared at our meetin9 of
January 1S, 2~01, the College ~equires particulars wit~
regard to your ~rievance in order to investigate where
you believe.the viola=ions have occurred.
In the absence of any further particulars, the College
believes you have not met the time limits, it is not a
grievable issue and therefore not arbitrable.
In the alternative, the College does not believe there
has been any violation of the Collective A~reement and
the grievance is denied.
The Union subsequently referred the g~ievance to
arbitration by means of the followin~ me~o dated Febr%~ary
2001, from Tom ~eldhard to Howard Rundle:
At several meetings, we have asked for names and
information on individuals.hired to perform teaching
duties under a contract. The CC~A only provides for
four teaching classifications. This work provided by
individuals/companies must be classified under one of
the four classifications.
During ~e~ings with'Gall Rozell; it was indicated that
there were still contract people who would be providing
teaching to students where specialized equipment may he
needed and that it would not be economically ~easible
to. purchase equipment (hypothetical example used was
Tl~eatre Arts rigging}.
The Local is not adverse to entering .into a local
agreement to resolve this matter.
However, as we know from Bester/Reimer, we need to be
able to review hiring practices to ensure compliance
with the Collective Agreement.
In the years immediately prior to us accidentally
'discoverin9 Bester an~ Reimer, w~ were assured b~
Coll~ge that no. imDroDer hires had taken place. When
we look at provincial data, albeit it is not for the
current period, we are struck by tke amount of money
paid out in this manner.
If the College is Hiring .properly, surely there should
be no problem with disclosing this information.
Hopefully, disclosure will result in us abandoning this
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16 Oct ~004 11:40 ROBERT D. HOWE
grievance.
This is a 9rievable matter. Time limits haws been met
with t~is ongoin~ issue. We are now referrln9 this
~rievance to arbitration.
The arbitration hearin~ Which resulted from that
referral commenced on September 18, 2002. · After the parties
agreed to revise the time frame covered by the ~rieva~ce to
the year of 2002 an~ presented submissfons through counsel
regarding produc=ion and particulars, the Board made the
fol!owfng order on that firs= day of
.The College shall produce.b~ November 15, 2002 a
report for the period of time from January 1, 2002
to August 31, 2002, and by February 15, 2003 a report
for the period of time fro~ September 1., 2002 to
December 31, 2002, which shall provide a listinga
(including number of hours if available) by division
and by course, of the use of vendors who provide
contract teachin~ services in credit courses in
Ministry-approved diploma or'certificate programmes
offered at any or all campuses of the Coil,s. For
greater clarity, the list shall include vendors who
teach credit courses in short-term intensive 'continuin9
education certificate programmes.
The Union shall provide written particulars ~o the
College no later than t~irty days prior to the next
hearing date.
It is understood and agreed that this production order
shall not preclude'the parties from arguing the
admissibility of any such evidence at the hearing of
this griewance.
The summons to Linda Ballantyne issued on September 14,
2002 is hereby revoked.
The hea~ing was scheduled to continue on May 6 and 7,
2003, but those dates were adjourned on the a~reement of the
parties, as were the January 30 and February 4, 2~04 hearing.
dates that were subsequently scheduled.
When the hearing resumed on September i4, 2004,
lB Oct 200,~ ll:40 ROBERT D. HOWE ~ LYNDA 0. 905-B~4-3SS1 p.'7
counsel advised the Board of a substantial narrowing of the
matters in dispute. Information provided by the College to
the Union indicates ~hat two vendors taught courses during the
period from January 1, 200~ to August 31, 2002, Eour vendors
taught courses duxin9 the perio~ from September 1, 2002 to
December 31, 2002, and all of those vendors were engaged on a
part-time basis, teaching less than six hours per wgek..
Although iU remains the Union's position that the College is
not entitled COntract out the instruction Of credit courses,
the Union has elected (on a "without prejudice" basis) not to
pursue that issue in the context of these proceedings, as.it
has concluded that it would serve no useful labour relations
purpose to do so. The issue which the Union does seek to
pursue in these proceedings is whether the College is required
to include information regarding credit courses taught by
vendors in the personnel lists prod~gcd pursuant to Article
27.12 of the collective agreement, on the basis that they are
"personr. el', within the meaning of that provision, which reads
am follows: -'
During the 'last week of September, January and May the
College shall notify the Union Local President of all
personnel covered by the Agreement hired or terminated
since the last notification, together with the
classification, location and Division or Department
concerned. At such times, the College shall also
i~clude notification of all hirings o~ persor~nel
assigned to teach credit courses including, in
particular, sessional appointments.
The remedy being sought by the Union is a declaration
that the Colie~e violated that provision by failing to provide
that information.
4
Oct 2004 11:41 ROBERT
If it is unsuccessful on that issue (which will be
referred to in this Award as the "first issue", for~ease, of
reference), the Union may also wish to pursue its contention
that there was not a true contracting out to wendors in 2002,
and that information reDardlng credit courses taught by them
should therefore have been included in the Article 27,12
persornaet 'lists because they were in actuality part-time
employees of the College. However, the parties have agreed to
defer consideration of that second issue, and of ~he CollegeTs
objection to its arbiCrability, until after the Board has
dealt with the first issue.
Summary of ~e College's Position
It is the College's position that the firs~ issue is
not witAin the scope of the grievance, and that the~oar~
consequently does..not have jurisdiction to decide it in these
proceedings. In support of that position, counsel ~or the
colieg- submitted that the Union cannot unilaterally expand
the scope of the grievance so as to effectively substitute a
new grievance (about production of information) for the
grievance (about staffing and assignment to the bargaining
unit) which ~ave rise to the~e proceedings- Although the
referral to arbitration men~ions production of information, it
does so as a suggested means of resolving the ~rievance and
does not suggest a violation of Article 2$.12. In any event,
the scope of the case is determined by the grievance, no, by
the referral letter. It is evident from the wording of the
grkevance that the Union suspected that the College was using
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certain persons who w~re not classified as part-time, partial
load, regular or sessional employees, to teach more than six
hours per week. However,~ those allegations have proven to be
unfounded. Although the grievance refers to Article Z7, that
provision pertains'to a number of matters'imcludln~ layoffs
and staffing. The onus is on the Union to set out the nature
of the ~riev&noe. T~le College is not required to fish out
what the Union may be concerned about.
In Support o~ the College's position, counW%l ·
referred the Board to FanshaWe Colleqe and OPSEU (~ile
$01C049), unreported award date~ November 20, 2002 (B~rkett);
and Imoerial ~ob~cco Canada .Ltd. and B.C.T,G.M., 5coal ~64T,
unreported ~ward dated October 17, 2~00 (Keller).
S,ummary of the Union's Position
It is the Union's position that the first issue ~alls
within the scope of ~he grievance. In support of that
position, Union :ou=sel noted that the'~ievance pertains to
"Staffing and Related Responsibilities" and alle~es ~hat the
College has failed to comply with Article 27 and a number of
other provisions. The ~rievance was ~ra~ted in broad terms to
cover off all possibilities., including the possibility that
the individuals in question were part-time employees, partial
load employees, regular employees, or sessional employees.
This was necessary because at the time the ~rievance was flied
the Union knew that there were individuals performing teaching
duties but d~d not know the extent of those duties,
necessitating =he production order which it obtained on the
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16 oc~ ~0o4 it:*l ROBERT ~ HOWE ~. LYMDR G. 90S-634-3S51
first day of hearing. If the information obtained through
tkat order had indicated that 'the v~ndors were
th~n six hours per week, provisions such as Articles 10 (uni,o~
dues deductloni, 11 (workload), and 14 (~alaries) wguld ~ave
been of potential relevance. Since that i~formation indicates
that the individuals were working less than six hours'per
week, those provisions do mot apply to tkem as they fall
within the Article 1.01 definitio~ of "part-time" and are
excluded from the bar~ainin~ unit, what does apply Lo th~m
when they a~e teachin~ credit courses' is Article 27.12, which
obliges the College to provide information to the Union
President regardin~ t~em. The referral to arbitratio~
provides some si~nlficant insight into tke dynamics between
t~e parties in the context of this ~rievance, and clearly
i~di~ates that the flow of information between tke parties is
a c~ucial part of tke ~rievance and the dialocjue between'the
parties over the course of the grievance procedure.· U~der the
a~reement, the only way that the Union gets information
allowing it to "review hirin~ practices to ensure compliance
with the Collective Agreement". is through Article 27.12. The
flow of information between the parties followin~ the first
day of hearin~ has resulted in a narrowing of the g~ievance,
but the ~r£evance has not chan~ed.
I~ support of the Union's position, counsel r~ferred
the Board to' ~e ~lo~in Drywall ~Ontractors Ltd. an~
~r~tbe~hood of carpenters and Joiners of America. Lo~al 2486
(1975), B7 D.L.R. (3d) 199 (On~. C.A.); ~nd. Re H%rrv~ Woods
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lB Oct 200~ 11'-q-~2 RO~]ERT D- HOWE B LYriI)R G. 905-62~-3951 p. 11
TransDort Ltd. and Teamsters Union. Local 14~ (1977), 15
L.A.C. (2d) 140 (Weatherill).
Decision
Having duly considered the submissions of counsel and
the authorities to which they referred during the course of
their ~ubmissions, we have concluded that the Union is
entitled to pursue the first issue in these proceedings for
the following reasons.
As indicated by Brooke J.A. in his ~udgmen~ on behalf
of'the Court in Re Blouin Drywall, SUprA, a board of
arbitration "is bound'by the grievance before it bug th~
grievance should be liberally construed so that the real
complaint is dealt with and the appropriate remedy provided to
give effect to the agreement provisions".
In the af"orementioned award dated November 20, 2002,
between the Union and the College, Arbitrator ~urkett wrote,
in part, as follows at pages 6 and 7 of that unanimous award:
The Chair of this Board, sitting as a sole
arbitrator in r~: Ontario H~o and PWU
[(1996), 53 L.A.C (4th) 163] and relying on the
juclgement of the Court of Appeal in re: Blouin Drvwall
Contractors Ltd. [{197~); 57 D.L.R. (3d) 199],
artiSulated the well-accept'ed principle that
,,grievances are not to be de,eared by mere defects in
form or by technical irregularities." In other words,
arbitrators are to deal with the issue raised o~ a
broad reading of the grievance. However, as cau%ione~
" it is not
in re: Ontario.Hydro and. PW~. (supra), ...
o~en to a party to unilaterally expand a grievance to
encompass a matter not grieved." Fairness, as well as
the efficient administration of the grievance and
arbitration process, dictates that this be so. The
agg=ieve~ party is entitled to rely on the grievance as
file~, albeit read in its broadest te~, and to govern
itself accordingly with respect to settlement
discussion, referral to arbitration and preparation for
arbitration. "The cases referred to in re: City of
8
iS Oct 2004 11:42 ROBERT D. HOWE · LY~gD8 ~. ~0S-~34-3851 p.1E
Toronto and .CUP~, Local 43 [(1974), 7 L.A.C.
(Simmons)], as relied upon by the Union, support
statement of general principle.
arbitration is the same issue raised in the grievance
as ~iled, an arbitrator must compare the grievance as
written, including the remedy sought, to the issue
raised at arhitra~ion, including the remedy sought
Applying that approach to the grievance before them
(which alleged that the College had reclassified th~ wor~ of
delivering Basic Food Preparation 1, and which sought as a
remedy a d~claration that the. work belonged to the professor
classification and that the vacancy be posted and filled'
immediately with a full-time professor) le~ that Board of
Arbitration to conclude that the Union was precluded from
substituting a claim that the work in question was "either
t~at of a professor or an instructor", a~d that the persons
performln~ the work ought to be brought within the bar~aini~
~nit and compensated with retroacti~ salary adjustments.
In'Imperial Tobacco C .amad~ Ltd. a~d B.C.T.G.M.,
364T, supra, the Local filed a grievance alleging t~at d~nying
the. ~rievor. short-term disability benefits breached the
~ollective a~reement. The relief requested was the payment of
those benefits, punitive damages, and damages for mental
distress and intentional i~fliction of mental harm'. The
grievance'also alleged, in the alterna=ive, that the employer
had failed to accommodate the grievorby refusing to t'ransfer
him to another location in the event that short-telnm
disab&!ity benefits were denied, and sought accommodatio~
pursuant to the Human:Rights C~e. After the employer
restored the grie~or's short-term disability benefits, the
9
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16 0¢~: 2004 i1:~3 ROBERT ]). HOWE % LYH])R G. 905-834-39~- p.13
Local sought an award of compensation for the difference
between what the ~rievor earned while on the job and the
amount he received while on compensation. In rejecting that
claim, Arbitrator Keller wrote, in part, a~ follows (at pages
4 and 5) of his award:
In my view., there is no legal foundatio~ for the claim
now put forward by the u_~ion. It is not even
conten~ptated in the grievance before me dated October
1, 1999. I ack~owled~ that the issue o~ comlue~sation
~ay have been subsequently discussed by the parties but
that does net alter the fact that it did not form part
of the initial grievance. As was state~ by arbitrator
Ra~ner in the matter of Re Ele~trDhome Ltd~ and
International Brotherhood of'Electrical ~orkers~. Local
~3~., 16 LAC [3d] 78, at pa~e 83:
"In our view, to permit the union to raise the
issue of. Article 33 in. the present grievance,
would not simply be an amendment to the
grievance nor an elucidation or reformulation of
the basic dispute between the Darties. It is
indeed a new issue raised by the union [and] one
that should be the subject matter of full
discussion "by the parties ~hrough the grievance
procedure."
The instant case is not dissimilar from the case cited
above. What is sought by the union is not an amendment
of the basic ~ispute between the parties as it wa~
framed' a~ the time of the grievance. It is an entirely
new matter that although discussed between the parties
subsequent to the filln~ of the ~rievance was not then
in front of them- Thus, I am of the view that what the
union is seeking to do now transcends a mere technical
amendment to the ~rievance but transforms it ent~rel~
into a new grievance. That being the case, I must
conclude that I dc not have jurisdiction to deal with
the issue raised by the union with respect to
compensation through the grievance dated October 1,
19.99.
Although we respectfully agree with the reasonin~ and
conclusions contained in those awards, we find the
circumstances of ~he instant case to be distinguishable. In
the case before us, it is evident that although the Union k~ew
10
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Oct 2004 11:~3 ROBERT D. HOI~E & LYblDFI G. ~)05-~;3~-~qE151 1~-14
that teachln9 duties were bein~ performed by 0ertain "persons"
whom the. College had not olasslfied am "part-time, partial
load, regular or sessional employees", it did not know the
extent of those duties and was consequently unable to assert
which of those four. categories %fas applicable. What it did
a~sert wa~ that those persons "must be classified as
part-time, partial load, regular or sessional employees with
all the rights for bar~alnin9 unit members that flow from the
collective agreement.'r Its lack of information is also
reflected by the breadth of the provisions alleged to have
been violated. In this regard, the grievance alleges that :he
college "has failed 'to co~ply with Articles 1, 2, 6, 10, 11,
14, 26 and 27 as' well as Appemdices I, VIII, and IX., the
Classification Plan and the CCBA., Although a narrow reading
of the grievance might support the position asserted by
College. counsel, a. broad reading of the type mandated by~
B~ouin' D~vwall supports t~e Union's position. As a result of
information provided by the College to the Union conuernir~
the extent of the teaching duties performed by the
·
aforementioned vendors (and the Union's conclusion that it
would serve no useful labour relations purpose to p~rsue in
these proceedings its contention that the College.is
entitled to contract out the instruction cf credit courses),
the ~rievance.has been narrowed down to the issue of whether
the College is required to include information regarding
credit courses taugh~ by vendors in the personnel lists
produced pursuant to Article 27.12 o~ ~he collective
11
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1S Oc~ 2004 11:44 ROBERT II. HOuE ~ LYMD8 G. 90S-634-3951 p.15
a~r~ement, on the basis ~hat they are "per~oru%el" within the
meanin~ of tha~ p~ovision. 'We are satisfied that this issue
falls within the scope o~ the .grievance because Article 27 is
one of the provisiOnS alleged to have been'violated by the
College, ~nd because one of the "rights for bargaining unit
m~mbers" that arguably flows from that provision (if the Union
ultimately persuades us to adopt ~ts interpretation of
"personnel") is the right to have their Union Local President
notified of the College's hiring of those vendors to teach
credit 'courses, so that the Union will be in a position to
enforce the provisions of the agreement, including ~t~fflng
provisions, for their protection and benefit. (we express no
opinion as to whether the aforementioned second issu~ also
falls within the scope of the grievance, as that matter has
not yet been argued in view of the parties' agreement to defer
consideration of tha~ issue, ~_nd the College's objection to
its arbi=~ability, until after the first issue has been
~esolved.)
Accordingly, this matter will be scheduled for
continuation of hearing in consultation with ~he pa~ties
through their counsel.
DATED at Burlington, Ontario, this 16th day o~ 0cto~er, 2004.
Robert D. Howe
C_hair
I concu~.
Union Nor~i~ee
12
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1~ Oot ZOO4 ii:44 ROB[~.T.....~]. HOWE 8, LYHD8 G. 905-~34-3951 p.16
i
])lS,~llqT og RJ. GAll.IVAN
With respect, ! disasr~e. Tn doin[: so ! nm pcrsu,~dcd bythc t,~asonint: of afltiltatm,
Blltkett In the Ferm.~'h~,,e (.'.ot~ege/OiS'.l,Jf! c~se qaoled by Ihe Mm,'tofity in its am~d:
filed, an ~it~tor must com~ ~ ~e~e
~y ~ug~L ~ ~ ~su~ ~ ~ a~a~o,,
our ~a.~ thc gzievan, ce alleimes that thc Coll.e{~e violatezl the'agreeing;ne "..,by
to a.,aisn to tb~ baq{ahzin{~, uull ~ratean 'l:~t~oua' who at~ p~fommiug tea~hJng
dates...." and. stipularesthat.:
"As ~m,dy w~ ,~-ek' a dc~laratieu from ~¢ Boat-d tl~! 'p~sons' tcac~tig'mu~t
be classil~ed us pazt-tm~, pazLial lrjad, regular or se.~iotza{ employees wi~h all
the rights fm bargaining unit rrtcmbers that flow from th~ oollec~iv¢ agmemem."
Applyi,8 ~he above' Fcm,vhawg/OP,~.! tc~x, it :s~ms ¢]e,a~ m mc ~.~ ~uv~'
1~ ~u Wans~rmed from one ~g~ding ~ ~}g~t ofw~k m nou-~eing unit
mem~ ~ on~ about th= na~m of thc info--ion thc Coll~ ~ ~ ~ ~ly ~
· ~ ~[un ~d~ ~{cle 27.12 - m~ entirely dit~n~ issue.
While it is tru~ that ~he unk)n rcfcrz~d to A~ticle 27 in ~ grimace, it did ~ in ~
~{~ti~ '~e gti~ance allegu~ violutien of ~miul~ t,2,6,10,11.14,26~7,
VIII, IX, lhu Cl~sificali~m PI~ and ~e Col[~ges Collective B~in~ng Act. All t~l is
~ 10718×200~ 11:49 M~LI~R~ ROL~MD 416 6~6 4~01 ~ ~?4E~11922~941644E8618 MO.E~I ~017
mi~itlg this time is th~ ~ommon "or ~y oxhor ~.visi~n of thc ~~t
d~ing ~ t~c na~ ~f ~c' ~e~n to be ~mppli~ ~o tho ~i~ ~cr