HomeMy WebLinkAboutUnion 95-02-01CAATA NO: 94B666
HUMBER COLLEGE OF APPLIED ARTS AND TECHNOLOGY VS OPSEU
HUMBER COLLEGE OF APPLIED ARTS AND TECHNOLOGY
and
O.P.S.E.U. ACADEMIC GRIEVANCE #94B666
DECISION OF R.J. GALLIVAN
Having carefully reviewed the collective agreement as a whole, I conclude that the only
statement in the "Appointments of Academic Administrators" policy which contradicts the
collective agreement is the requirement in the policy that an academic employee seconded into a
management position continue to pay union dues. A person in a management position at the
College, whether in a permanent or "acting" role, is excluded by virtue of Article 1.01 of the
contract from the bargaining unit and thus from the requirement to pay union dues. In my view,
none of the other sections of the policy, including treating temporary assignments of employees
into management positions as "secondments", contradict any provisions of the contract.
The union argued that a number of other parts of the policy violated the agreement as well,
but my colleagues quite rightly reject those arguments, in particular the union's objections to
paragraphs 6, 9, and the fourth sentence of paragraph 3. I concur in rejecting those union
arguments.
However, I regret to have to point out that my colleagues seriously misconstrue the
agreement by holding that the College cannot second academic employees on a temporary basis
into administrative positions. They reach that conclusion by holding that persons appointed to
acting management positions do not fall under Article 27.03 D(v) but rather under 27.03 F3, and
by accepting the union's obviously flawed argument that a person can be seconded into a
management position outside his/her own College but not at the originating College - a
contradiction without foundation under the collective agreement.
Only part of Article 27.03 D(v) is reproduced in the majority's decision. It is instructive to
consider the whole Article:
"27.03 D A full-time employee shall continue to accumulate seniority for the purpose of
this Article while: (i) in the College's employ;
(ii) absent through verified illness or injury and/or leave of absence for up to 24 months;
(iii) on a College-approved leave of absence on an exchange program;
(iv) on a College-approved professional development leave of absencei or
(v) on a College-approved secondment for up to 24 months."
A number of observations can be made and conclusions drawn from that Article. First, it will
be noted that each of the four types of absence listed is contemplated to be of a temporary nature,
that is, illness, exchange programs, professional development leaves, and secondments.
As my colleagues rightly point out, all dictionary definitions to which we were referred by
the parties or which the Board itself consulted define "secondment" in terms of a temporary
transfer or posting with an implied expectation of return. In that sense then, a secondment under
Article 27.03 D is no different than the other types of absences listed therein, each o-f which
contemplate an automatic return at the completion or expiry of the activity which prompted the
absence.
Second, the Article makes no distinction in entitlements or rights between a person seconded
and a person coming within one of the other three types of temporary absence. That is, there is
no provision in the Article, or elsewhere in the agreement that I can find or to which we were
referred by the parties, which distinguishes the treatment of a person returning from a
secondment from a person returning from any other of the listed absences such as an exchange
program. In the absence of words which would make such a distinction, it is logical to conclude
that none was intended by the drafters of the contract.
Third, notwithstanding the union's argument to the contrary, that Article does not distinguish
between different types of secondment (nor does any other part of the agreement). If an
employee is seconded to undertake, say, a research project in the Ministry of Education and
Training, that is no different under the Article than a secondment to a management post at his/her
own or some other College. During final argument before us the union (under questioning by the
Chair once it became evident where the union's argument logically led) confined its submission
to the contention that an employee could be seconded to a management post anywhere outside
the College but not to one within if the latter entailed supervising bargaining unit members.
Again, if such a major distinction was contemplated by the parties to the agreement the
distinguishing words would need to be there, and they are not. We cannot add them, nor interpret
the agreement as if they were there. It unfortunately needs repeating that arbitrators cannot "alter,
modify or amend any part" of this agreement (a prohibition found in Article 32.04 D). To arrive
at the conclusion reached by my colleagues requires that words be added (such as "a secondment
to a College administrative position is of a different nature than other secondments as follows...")
which the parties themselves have not seen fit to include.
What the parties have done however is to include the following Article:
"27.03 F3 A person who is covered by the Agreement and is assigned a position with the
College outside the Agreement after August 31, 1978, will be credited with and maintain
seniority as at the date of assignment for six years thereafter while in the employ of the
College."
The Chair of our Board holds that that Article is the one which applies to temporary
transfers into management positions, but only where the employee becomes a manager of
persons in the bargaining unit. How that imaginative and odd distinction is arrived at is
substantially less than adequately explained. If I understand his reasoning, he comes to the
position that the staff moves covered by the disputed policy statement cannot be secondments by
concluding that absences under Article 27.03 D are all employee-initiated, requiring College
approval, whereas an absence under 27.03 F3 is College initiated. This conclusion seems to be
drawn from the latter Article's use of the words "assigned" and "assignment". With respect, that
is a distinction without a difference since an employee on secondment may be "assigned" to a
College research project outside the bargaining unit for example, where the "assignment" would
be as defined in that project. Again using standard dictionary definitions of "secondment", there
is nothing in that word's meaning which presumes a secondment's initiation by the employee. In
fact the word's etymology shows military origins. suggestins management command, not
employee initiation. Thus nothing turns on the fact that "secondments" under this agreement are
mentioned in the same Article as employee-initiated absences.
It is also evident by comparing the two Articles in context (27.03 D and 27.03 F3) that the
latter appears designed for staff moves intended at the outset to be permanent or long term (a six
year seniority protection for example) but which later may need to be reversed for unforeseen
reasons. In contrast, the secondment Article contemplates that staff moves, at least at the outset,
be temporary (a 24 month seniority rule instead of six years for example). That difference alone
suggests that the type of temporary assignment contemplated under the College's disputed policy
falls more properly under the secondment Article than under 27.03 F3.
The Chair also argues that the generality of Article 27.03 D(v) must yield to the specifics of
Article 27.03 F3. Again with respect, a "secondment" is no more nor less specific than an
"assignment", unless of course the contract specifies otherwise; this contract does not.
In any event, neither Article must yield to the other because it is clear that both deal with
different sets of circumstances. That is demonstrated by the fact that under 27.03 D employees
who remain in the College's active employ "continue to accumulate seniority" indefinitely while
on an exchange program or on a professional development leave, and for up to 24 months while
absent through illness or secondment. Under Article 27.03 F3 on the other hand, seniority does
not continue to accumulate during the absence but is frozen (and preserved at that level for up to
six years) as at the date of assignment outside the bargaining unit, presumably because the
transfer is intended to be permanent but offering protection to the employee in case it is not.
Thus it seems obvious that 27.03 F3 and 27.03 D complement one another - the latter
covering four types of temporary absence during which seniority continues to accumulate, and
the former covering all other types of absence from the bargaining unit during which seniority
does not continue to accumulate. My colleagues ignore that clear distinction between the two
Articles and thereby introduce conflict and confusion between two complementary provisions.
Since I have already demonstrated that a temporary assignment of an employee to a College
administrative post may appropriately be treated as a "secondment", it follows that 27.03 F3 does
not apply to a secondment or to any of the other types of temporary absence covered by 27.03 D.
Nothing of import to the grievance before us turns on Article 27.03 F4 or on the Orillia
Soldiers Memorial Hospital case referred to by the Chair. That decision might have application
to an agreement which did not contain a clause such as Article 27.03 F4, but since the parties to
our agreement have decided how to handle the issue covered by the Orillia case, it is irrelevant to
our determination and was not argued before us by either the College or the union.
I agree with my colleagues that while an employee is on secondment outside the bargaining
unit his/her rights under the contract are limited. However, I must dissociate myself from the
illogical conclusion urged on us by the union and accepted by my colleagues that if an employee
is on secondment to a temporary management post at the College his/her right to an automatic
return to the bargaining unit is different than if the secondment was to a post (managerial or
otherwise) elsewhere. That distinction is not supported by the words of the agreement and it is
erroneous to interpret the contract as if such words were there. There is simply no distinction
made anywhere in the agreement between types of secondment.
I also agree with the admission by the majority that its decision will make taking an
administrative post unattractive. That is an unfortunate but inevitable result of accepting the
union's submissions which strike me as being more of a wish list of how the union would like the
contract to read (so as to exercize more power over any of its members who might be so
uncomrade-like as to consider taking a management job?) rather than logical argument about
how it actually reads. As mentioned above, this was inferred by the union's counsel when he
asked us not to interpret the word "secondment" in situations where the employee's temporary
assignment placed him/her outside the bargaining unit at some other location - a placement
which would raise the issue of automatic return to the unit which the union apparently would
preserve for some types of secondments but not others - a distinction which, as I have
demonstrated, cannot be supported by the existing terms of the collective agreement.
In conclusion, I would allow the grievance to the extent only of finding that the requirement
under the "Appointment of Academic Administrators" policy that academic employees seconded
into management positions pay union dues, is contrary to Article 1.01 of the collective
agreement. The practice of using the secondment mechanism of the contract for temporary
assignments outside the bargaining unit, whether at the College or elsewhere and whether into
management posts or otherwise, is not a violation of the contract.
17/2/95R.J. Gallivan
IN THE MATTER OF a union grievanceL. 56
AND IN THE MATTER OF the arbitration of the grievance
BETWEEN:
Humber College of Applied Arts
and Technology
- and -
Ontario Public Service Employees Union
(for academic employees)
PLACE & DATE OF HEARING: Toronto, Ontario, January 20, 1995
BOARD OF ARBITRATION:
Robert Gallivan
Sherril Murray
Stanley Schiff, chairman
APPEARANCES FOR THE EMPLOYER:
Nancy Hood, director, human resources Dale Hewat, counsel
APPEARANCES FOR THE UNION:
Eleanor O'Connor, local vice-president Robert Mills, local chief steward Nelson Roland, counsel
AWARD & REASONS
The College has issued a policy statement entitled "Appointments of Academic
Administrators", which it has circulated among bargaining unit members. The union grieves
that the document violates the collective agreement in intent and specif1c detail. The body of
the document reads as follows (with the parts the union here challenges printed in italics):
Introduction
The College recognizes the value of ensuring that academic and other administrative positions
are held by people knowledgeable of and responsive to issues related to student success.
At the same time, the College recognizes the value in and responsibility for providing faculty
and co-ordinators developmental opportunities to move into administrative positions.
It is, therefore, necessary to establish some clear guidelines related to the internal appointments
to academic administrative positions in order:
(1) to encourage professors to compete for academic administrative positions;
(2) to provide a measure of continued job security for professors moving from the
academic bargaining unit to the administrative group;
(3) to provide effective, constructive and timely orientation to and training for the
position and feedback on performance;
(4) to provide a period of time for new academic administrators to consider on-going
administrative appointments while ensuring a measure of job security, position choice
and easy access back into the faculty bargaining unit.
Procedure
1. All full-time administrative vacancies will be posted in accordance with College practices.
2. It is understood that administrators hired from outside the Humber College community will be
hired in accordance with the normal terms and conditions of employment for administrative
employees.
3. Any internal academic candidate for an administrative position will be appoinsed on an acting
basis for a one (1) year term, renewable for a second (2nd) year. The appointment will be treat.ed
as a secondment. Under normal circumstances, no academic administrator will remain in an
"acting" position for more than two (2) years. An "Acting" Administrator carries the full
responsibilities of the position.
7'he academic employee will continue to pay union dues; and pursuant to Article 27.03(D) of the
Academic Collective Agreement, shall continue to accumul.ate seniority while on a "College-
approved secon~m.ent for up to 24 months".
4. Upon appointment, the Dean or other relevant College manager will ensure that the "Acting
Administrator" receives clear communication regarding the duties and responsibilities of the
position and expectations for successful performance.
5. Within the first six weeks of the appointment, the College will ensure that the new academic
administrator will receive appropriate orientation and training.
6. In addition to other formal performance evaluations currently conducted at the College in
accordance with the terms and conditions of employment for administrative employees or with
College practices, the College will ensure appropriate developmental performance feedback is
provided at or about: 6 months 1 year
18 months with more frequent and informal feedback provided as required.
7. No reappointment will be automatic. The College must review the performance and make a
recommendation regarding reappointment for the second year. At the end of the 18-month
period, the review should be extensive enough to ensure there is relevant information upon
which the College and the employee can make a decision regarding a long-term administrative
position.
At this point, the Professor will either return to the academic bargaining unit or the College will
offer a full-time administrative position.
8. It is understood that the administrative position will only be reposted at this point if the
Professor returns to the bargaining unit.
9. Any Professor who accepts a long-term administrative position and then wishes to return to
the Academic bargaining unit at a later time will have to apply to a posted vacancy. Seniority
rights will be in accordance with the collective agreement.
10. The College favours that Chairs and Deans teach in an appropriate area of their expertise.
The policy is the product of a lengthy process of consideration and consultation by various
college committees. As the Introduction says, its purpose is to attract experienced academics into
administrative positions by giving them limited term appointments during which they may test
whether life as college administrators is to their liking. The attraction is supported by promises
that they remain part of the bargaining unit during the term, subject to all rights and duties the
collective agreement sets out, and that they return to their former positions within the unit at the
end of the term should they decide that permanent administrative positions are not for them. The
promises are justified, the College argues, by section 27.03 D (v) of the agreement: as section 3
of the Procedure says, "[the appointment will be treated as a secondment." Section 27.03 D (v)
reads:
27.03 D A full-time employee shall continue to accumulate seniority for the purpose of this
Article while:
(v) on a College-approved secondment for up to 24 months.
Someone seconded under section 27.03 D, the College says, does not stop being a member of the
bargaining unit for any relevant purpose. While the policy talks of "academic administrators", the
parties agree that the concern is with the acting position of department chair.
We conclude that the College misunderstands the scope of section 27.03 D (v) and how it
meshes with sections 27.03 F3 and 27.03 F4. Since we do not have before us any individual
grievor's concrete claim presenting specific facts, our explanation of why this is so will largely
avoid interpreting the agreement's provisions beyond what is necessary for determining the
grievance.
Section 1.01 of the agreement excludes from the bargaining unit anyone who is a chair and,
by invoking the Colleges Collective Bargaining Act, anyone who is employed in a managerial
position. That means that all academic administrators are excluded. The evidence and the clear
statement in section 3 of the Procedure show that persons in the acting chair position will
exercise complete managerial authority. By virtue of section 1.01, persons who take on the jobs
under the policy therefore immediately cease to be members of the unit and have only such rights
identical to those of unit members which the agreement specifically gives them.
What rights are these?
From standard dictionaries we see that "secondment", undefined in the agreement, means a
person's temporary transfer from the person's usual position to another position with the
expectation of return in due course. If persons put in the acting chair's position have been
seconded there for the purpose of section 27.03 D (v), they would, as the opening words say,
"continue to accumulate seniority for the purpose of" Article 27. Although we do not decide the
point, it may be that they would also be entitled to return to their former positions when the
temporary chair jobs are done: such a conclusion would follow from the meaning of secondment.
But beyond that, while serving as acting chair, they would have none of the rights or duties under
the agreement of persons within the unit.
We conclude, however, that under a proper reading of the collective agreement, the persons
appointed to positions as acting chairs do not come within section 27.03 D (v). That provision is
deliberately worded to apply to an unnamed vanity of situations when persons go temporarily to
other positions. Moreover, its wording does not contemplate the College causing those people to
go; the College is merely required to approve the going. In contrast, section 27.03 F 3
specifically applies where the College causes persons within the unit to take positions as College
employees outside the unit. That is the very situation before us. Section 27.03 F 3 reads this way:
27.03 F 3 A person who is covered by the Agreement and is assigned a position with the College
outside the Agreement after August 31, 1978 will be credited with and maintain seniority as at
the date of assignment for six years thereafter while in the employ of the College.
To harmonize the two provisions, the generality of section 27.03 D (v) must yield to the specifics
of section 27.03 F 3. Section 27.03 F 3, and not section 27.03 D (v), applies to all situations
where persons within the unit become acting chairs or other management personnel involved in
the supervision of the unit's members.
The position of acting chair the policy contemplates is therefore subject to section 27.03 F 3
insofar as the incumbents' accumulated seniority is concerned. How that seniority may later be
used is then governed by section 27.03 F 4. At least absent section 27.03 F 4, those persons
might have used their seniority credited under section 27.03 F 3 when claiming a vacancy upon
completion of their term as chair. Arbitrators have almost unanimously said that is so. A recent
example may be found in Re Orillia Soldiers Memorial Hospital and Ontario Nurses' Association
(1992), 31 L.A.C. (4th) 116 (Levinson, chairman) (citing and quoting from leading awards). But
section 27.03 F 4, apparently responding to this near concensus, may prevent the person from
exercising the credited seniority when first claiming a vacant unit position. Whether or not that is
so, we do not here decide. What we do decide is that, beyond the seniority rights sections 27.03 F
3 and 27.03 F 4 give to the acting chairs, they have no rights under the agreement at all. They
certainly have no right, apart from the procedure the agreement sets out, to return to the positions
they held before moving into administration.
These conclusions, of course, make an acting chair's job unattractive. They will probably
have the effect of deterring many academically qualified persons from taking on the job when
their qualifications are exactly what the College and their colleagues want. These are not results
the parties may welcome. They are, however, the results the agreement as now drafted mandate.
If the parties want, they can of course make whatever adjustments they can now agree on.
The grievance is allowed to the following extent:
1. We declare that, with the exceptions we note, those parts of the policy printed above in
italics do not, as we have explained, accurately reflect the demands of the collective agreement.
The exceptions are the following portions of the Procedure: section 3, first paragraph, last
sentence; section 6; and section 9.
2. The College shall forthwith cease attempting to attract chairs under the policy as printed
above, and shall so inform all persons in the bargaining unit.
3. The College shall forthwith inform those persons formerly in the bargaining unit who have
been transferred to administrative positions under the policy of the content of this award.
We remain seized of this matter to resolve any difficulties that may arise in concrete instances
as a result of this award.
DATED at Toronto this 1st day of February, 1995.
Sherril Murray