HomeMy WebLinkAboutUnion 97-06-13IN THE MATTER OF AN ARBITRATION
BETWEEN:
St. Lawrence College
(the "College")
-and-
Ontario Public Service Employees Union
(the "Union")
AND IN THE MATTER OF A UNION GRIEVANCE
dated May 17, 1996 (0PSEU#96D651
Academic).
B A:
D.D. Carter, Chair
OARD OF RBITRATION
R. Gallivan, College Nominee
M. Lyons, Union Nominee
A U:
E. Holmes, Counsel
PPEARANCES FOR THE NION
M. A. White, Chief Steward Local 417
A E:
C. Kay-Aggio, Counsel
PPEARANCES FOR THE MPLOYER
B. MacKey, Vice President, Administration &
Human Resources
S. Graves, Director, School of Business
A hearing of this matter was held at Kingston on May 15, 1997.
A
WARD
This grievance alleges that the College was in contravention of article 2 of the collective
agreement in that it did not give preference to the designation of full-time positions in its business
department. Article 2.02 of the collective agreement provides:
2.02 The College will give preference to the designation of full-time positions as
regular rather than partial -load teaching positions subject to such operational
requirements as the quality of the programs, attainment of the program objectives,
the need for special qualifications and the market acceptability of the programs to
employers, students and the community.
There was no serious dispute about the facts underlying this grievance. At the time of the
grievance there existed at the College’s Cornwall campus the equivalent of a full-time load for an
accounting professor. Instead of posting this position the College had “backfilled” it by having
the teaching done by faculty employed other than on a full-time basis. The employer’s reason for
backfilling the position in this way was to hold open a full-time position for Mary Ann White,
Local 417's Chief Steward, who as a member of the Union’s negotiating team had been granted a
paid full-time leave under 8.03A of the collective agreement.
At the time that White was granted this leave she had been teaching less than a full load at
the Brockville campus because of her union responsibilities as Chief Steward. It is clear that at
that time that there was not at full course load available for her to teach at the Brockville campus.
It is also clear that at that time she was advised that, if she were to return from leave as a full-
time professor, she would transfer to the full-time position at the Cornwall campus unless
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circumstances changed at that campus. She was also advised that she might be able to remain at
Brockville upon her return from negotiations if she continued on some form of partial leave.
What is important, however, is the evidence that the only full-time position that could be
guaranteed to her upon her return was the position at the Cornwall campus which is the subject of
this grievance and that it was this position which was being backfilled for this purpose.
The union argued that White continued to be attached to the Brockville campus as no
formal transfer had occurred in accordance with the terms of the collective agreement. The full-
time position at Cornwall, therefore, should be regarded as vacancy that was required to be filled
on a full-time basis in accordance with article 2.02 of the collective agreement. While union
counsel acknowledged that some backfilling might be appropriate in the case of short term leaves
it was not appropriate in this case where the leave might continue for some time. The union
requested a declaration that there had been a violation of article 2.02 of the collective agreement
and a direction that the College post the position in question.
This case might have been clearer to all concerned if White had been teaching a full load at
the Brockville campus at the time she went on a full-time leave to join the union’s negotiating
team. In those circumstances there could be little argument that the job had already been
designated as a full-time position and that the College would be justified in backfilling that job
until her return form her union duties. It is well understood that all leaves of absence are
premised on the assumption that the persons going on leave will be able to return to their former
job or its equivalent if they wish to reclaim the job and are still able to perform it. The fact that a
leave is of indefinite duration does not alter that assumption in any way.
In this case, however, there was no full-time job at Brockville to backfill and the College
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chose to backfill a full-time vacancy at Cornwall to preserve it for White until she returned from
her leave under article 8.03A of the collective agreement and became a full-time faculty member.
In our view what has occurred is in essence a prospective designation of this position as a full-
time position to be made available to White upon her return as a full-time faculty member. The
College then backfilled this position in order to preserve it for her during her absence while on
leave. In this case the preservation of a full-time position through backfilling in order that a full-
time faculty member have a full-time job to return to upon the expiry of a leave can be considered
an operational requirement under article 2 and so does not contravene the collective agreement.
Indeed a finding to the contrary would be inconsistent with those provisions of the collective
agreement that contemplate leaves of absences for full-time employees.
For these reasons this grievance is dismissed.
Dated at Kingston this 13th day of June, 1997.
________________________
D. D Carter, Chair
I concur /dissent_________________________
R. Gallivan, College Nominee
I concur/dissent__________________________
M. Lyons, Union Nominee