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HomeMy WebLinkAboutCarbonneau 02-13-99OPSEU having completed the diploma. Union position that Collective Agreement contemplates Andrew Lewis LL 206371-l Andrew Lewis (Counsel) AWARD Th~ parties ~ agreed that this Board of Arbitration is properly appointed under the terms of the ooll~tiv¢ agreement, and that we have jurisdiction to hear and de&mine the matters in dispute between them. The parties are fiirth~ agreed that if we find that there is a breach of the collective agreement, we ma~j remain seized in the event that the parties have any difficulty calculating the amount of compensation to which the grievor may be entitled. Finally, since this case involves a rather narrow issue of interpretation, the patties were content tbat we make our determination on the basis of some agreed upon facts, logeflm- with cra'rain concessions that were made for the purpose of c~tali~ng the in--on issue. The background is not substantially in dispute. However, for ease of exposition, we will not reproduce the many pages of contract language which establish the "salary grids" or the related "Classification Plan" (see Article 14, found at pages 26-36 of the Agreement, and the Classification Plan found at pages 135-139). It will be sufficient to refer to the agreed facts and certain features of the contractual scheme upon which ~ parties' arguments are based. II · Ba¢_kuro_tmd The Union and the College are parties to what might be described as a "master agreement", that is negotiated centrall~j and is binding on a number of community colleges across the Province. The payment system that gives rise to the current dispute has been in the master agreement for many years. So far as we are aware, the stmct~ of the payment system has remained substantially unchanged since at least the early 1980's, and has not been the subject of any recent consideration at the bargaining table. °2- The 81'ievor is enrolled in a proglam of studies at Nipissing University, which (if ~ornpiCtCd) will lead to Master of Education degree. However, because the ~ricvot is involved in that program on apart, time baats, there was initially some controversy about how to measure her progress. According to the Union, the M. Ed. at Nipissing, is considered to be a "one and a half ¥~' rogram. But, of course, a "part-time? will take much longer than that, and may not actually qualify for her degree for a number of years. Moreover, there are apparently a number of different ways of fulfdling the educational requirements for the degree: 10 half courses plus a comprehensive examination; 8 half courses together with a "titajor paper"; and 6 halfcourses plus a '"thesig'. Students have considerable flexibility, not only in respect of the timing and selection of their courses, but also in respect of how and when they complete the overall requirements for a degree. In the circumstances, therefore, it is a little all,cult to determine what constitutes "one full year of post-secondary education" · h~ce the parentheses in the opening paragraph of this decision. And that is one of the diffi¢~ to which the College r~fers. Even if one accepts the Union's submission that tbe M. Ed. degre, envisages a "one and ct hal/year" program, when is a/xwt, ttme student iii the gricvor 2/3 of the way through that program? What does a "year" mean in this context? The Union's theory, linking salary increments to *years" of additional education, requires a case by case analysis of what constitutes a "y~ae' o an exercise that is rather , I complicated in the ease of part-timers, but would 'be significantly simplified (although ~rhaps not entirely eliminated) by waiting until the individual has actually completed the lxe~cribed course of studies. That is one of the attractions of the College's position. It reduces unceminty, avoids problems of characterization, md limits the potential for unequal treatment depending upon the vagaries of one's timetable, course selection, ~nd method of evaluation. For, to take the grievor's situation as an example: had she completed a ",/ear" with 5 courses (which is what she had when tbe grievance was filed) or with 6 courses (which is what she had completed a few weeks later)? In any event, the College is prepared to agree, that for the purposes of this arbitration, the grievor has the equivalent of "one ye,ar" of her longer program of study. So for present purposes, we need not consider this question of "charact~fi_?ation". Nevertheless, to the extent that ease of administration is an aid to interpretation, the College's position is the preferable one. I~ is common ground that the posihon advanced by the College at the hearing is also its established ~'actie~ in dealing with such matters. It is agreed that, historically, his College has not made ghd adjustments until the individual has actually received his/her degree. There was only one exception to that practice, which was treated as an "error", and subsequently corrected -without complaint from the individual concemed or the union. Accordingly, so far as we are aware, Ms. Charbormeau is the first employee to grieve about the College's approach. It is also common ground that what is at stake here is. at most, one grid ·'increrncnt" or "step". The Union says that the gricvor is entitled to this single-step salary adjustment upon completion of one "year" of additional education - which in this case, would amounts to 7,./~1 of what is said to be an 18 month program. In the Union's submission, the gricvor need not complete this 18 month course of studies. Nor would she be any better off financially if she did. On the union's view of things, she earns her additional salary increment by doing an additional year's training, and, from a financial point of view, it does not matter whether she goes any further or actually completes her degree. On the Union's theory, therefore, someone who does 2/3 of a course of studies (amounting to "one year") and then "drops out". will be paid at the same rate as someone who completes the program and receives a degree. The College says that this is an anomalous and an undesirable result (especially for an educational institution), that is entirely avoided by awaiting the completion of the program and the granting of the degree. In the College's submission, the salary scheme is intended to reward those who have actually achieved additional accreditation, not those who taken a number of courses towards towards that objective. The College maintains that, in an academic setting, the bargaining parties could never have intended qual treatment for those who are not similarly situated: those who have eamed a degree and those who are only 2/3 of the way there. Iff - i)iseussiort and Decision The Union bases its argument upon some of the language found at pages 135-1 39 of the collective agreement under the genera) heading "CLASSIFICATION PLAN FOR 'PROFESSORS AND COUNSELLORS AND LIBRARIANS'. The union says that the lams of the agreement give 'points" for each >,tar of post-secondary education e, omplc'~d, and those terms do not specifically require that an employee receive a degree. Thus, at page 136137, under the subheading "Rdevant Forma) Qualifications" one finds the~ Words: Forma) qualificalions are those which constitute the norm in institutions of post-secondmy education in the Province of Ontario. only full years of post-secondmy education at ~v¢ly higher levels, and teadtng to a diploma, professional accreditation or degree, arc recognized. For example, a 8raduate of a three-year teclmolo~ l~rogram in a College would be given 1% points for each of the three years, regardless of the length of time actually spent by the individual in obtaining the diploma, filo cr~t is given for a year of study in which there was sigllificaat duplication of other studies .... There follows a chart that mentions: a CA,AT Diploma or Post Secondmy Certificates which warrants 1 ½ points per year completed maximum of 4 ytar,~; a University degree, 1% points per year completed maximum of 6 years; s formal integrated work/study programs such as a C.A. or C.O.A, which warrants 1 ½ points p,z~y~ar (level) completed to a -6- 'maximum of 5 ~ars; and so on. But again, there is no specific stipulation that anyone complct~ the specified "qualification"; and the formula clearly does contemplate "points"l~¢r war of the program completed. In the union's submission, it is the completion of "yew-s" and the attainment of points that counts · not whether anyone actually obtains the degree or diploma itself. Now we might pause here to observe that this is ~y not the only, or even the most plausible reading of the words to which the union refers. On the contrary. What we are dealing with here, are "forraal qualifications" in the sense of a "diploma, professional accreditation or degree" o the "formal" piece of paper or certificate that one obtains after additional years of study. In the abstract, the words "leadtng to a dtplonug' might conceivably mean "leading towards, with a view to, but not necessarily obtaining a diploma"- as the Union claims. But tbat is not the most obvious sense of those words, and they are immediately followed, with an example, for clarification, that envisages the situation of someone who has spent time "obtaining a diploma" · which is to say, someone who has taken the time to actually get that document. So the Union's linguistic argument does not withstand close scrutiny, even on its own terms; and requires one to give credit for steps towards, but not the achievement of, what the agreement labels "relevant formal qualifications". In other words, if one gives content to the word '~orma/", what is "relevmat" is the 'formal qualifications" attained, tbe degr~, not thc "point score" or the individual "years of study" necessary to get there. And that is also what is suggested when one goes back to the terms of the agreement establishing the salaly grid itself Article 14 at pages 26-36). Article 14.01A links the determiriation of starting salaries and progression with the "PLAN" and the explanatory material found at pages 134-148 of the agreement. However, it is instructive to look at the way in which the grid is structured, and what is required to achieve a position on the grid. Article 14.03 A I(b) begins with these words: The following table indicates both the maximum salary level attainable by an employee based on that employee's t~l~vant formal education/~,b and equivalencies and the maximum starting step for that employee on the Salary Schedule. The table following Article 14.01 A then has a heading for the maximum step attainable, and an adjacent listing of the required formal qualifications to achieve that step. Thus, someone with a 4 year University degree can, with cxp~ri~¢e and good performance, achieve the maximum step, but someone with no formal post-secondary "diploma, c, rttficate, or degree" hits a ceiling at four steps below the maximum. WhaI counts is the ~ of formal education achieved. There is no recognition here of "partial degrees" or "years towards a diploma not actually obtained". Nor does this language envisage some automatic progression or extra credit with every year of extra post-secondary education. It is a salary formula based upon "formal i' qualifications" not extra training which might or might not lead to such formal qualifications. This is not to say that the Union's position is completely without linguistic support. But, quite f-rankl~y, it is easier to accept an arrangement in which extra training might not be immediately rewarded, than one in which someone who does not complete a degree or diploma will be in the same position as someone who does. And, in a College environment, it is hardly surprising tbat the focus is on levels or plateaus of additional education rather than courses, years or parts of programs. The College's position seems more consistent with the context and the general payment scheme reflected in the. salary grid, and it is certainly much easier to admiister. The practice of the College is also supported by the only arbitration decision on point. In lqia~tara _C,_olleg- Orievance of Anne Wylie (decision released March 3 1.1989, Devlin) the 8fi~vor had completed the courses necessary for her M.B.A., but had not yet received her degree. Nor had she received a salary adjustment, because it was the practice of the College to make such changes only when the degree was conferred. ~ Wylie challenged that practice, claiming that she had completed the required number of "years" of additional training, and tbat she was therefore entitled to financial recognition of her achievement. In her submission, it was not necessary to actually obtain the degree (which would not be conferred until a form~! ceremony, some months later). And in support of that position, Ms. Wylie relied upon the same collechve agreement language that Union relies upon in the instant Case . although, of course, Ms. Wylie had actually cOrelli*ted the prescribed program, and was merely awaiting receipt of the f~rmal document, while the gfievor in this case still has quite a lot of work to do. The employer ha Niagara _C_o_i!¢~:e_ took the same position as the College does ~ the instant case: that it was not required to make a ~ary adjustment until the degn~e was actually received. There, as here, the employer relied upon the structure of the salary grid, and the fact that the salary formula was based upon "relevant formal education levels" which are described in terms of recognized diplomas or degrees. There, as here, the employer argued that what mattered was formal ,dueattonal attainment as evidenced by the receipt of a degree - not the completion of a program. Arbitrator Devlin's analysis of this issue is set out in a long passage to which we might usefully refer. After reviewing the practice of the College and the language of the 'i collective agreement, she went on to say: The determination of this issue is not without difficulty and an argument could be made that the language of the Classification Plans is ambiguous. However, even if we were to r~ach such conclusion, no extrinsic evidence was introduced to which the Board might have recourse as an aid to interpretation. Although the College has evidently given credit and made salary adjustments only when a degree has been conferred, there was nothing to indicate that the Union was aware of this practice. As a result, the practice of the College alone cannot be considered and the issue must be resolved on the basis of the language of the Classification Plans, .. . . -II- I ~"~i d~. or professional ~ccreditatio~, In our view. ~ · co~rtpk'tion ofo~ or mo. re yei~a 9f study Icadi. mz to a lcadin~ l~ a dcm't~ is also not suffic{ent, ~r~dit'it ~l!l. v siv_~l when the ql~gr~e_is conferred, (emphasis added) This deeiaion was Ililt judicially reviewed. Nor is there any evidence that, in the rounds of bargaining since 1989, the union has made any effort to negotiate new contract language to reverse the result. On the contrary, the current limguage ia exactly the same as it was ten yeara ago when the Devlin panel considered the issue. Now, strictly speaking this arbitration panel is not '~ooulad" by the l~vlila Award. We are fr, e (indeed we are probably obliged) to make our own imL-.pcn~tt judgement of the facts and the language under review. Nevertheless, we do not think tim w~ ran ignore the Devlin decision; moreover, as we read the collective ~v~meut., Ms. lilevli~'s e. naly~ is not only "plausible". it is also very "tm'strive". It is certainly not%uatr,~onabl~" or "obviously wrong", as counsel for the union claims. And, it is not without aisltifioanee that tim m-don h__~, made no effort to challenge the award or change the contract language to avoid its result. In summary th~n, the i~~flon that the College urges Ul~ us: is consistent with its established practice; is congruent with the language of the eollgtive agreement read as a whole; "fits better" in an educational setting; avoids anomalies and ~ministrative difficulties; and is supported by the only m°oitral decision on point. “John M I C ,