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Home My WebLink AboutUnion 00-11-08 L~CO IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE (the "College") and OPSEU (the "Union") RE: GRIEVANCE #97B622 (ACADEMIC) Use of Sessional and Partial-Load Employees in the School of Legal and Public Administration Board of Arbitration: Pamela Cooper Picher Chair Robert J. Gallivan College Nominee Brian Switzman Union Nominee Appearing for the College: Robert Little Counsel Mile Komlen Student At Law Denise Chan Human Resources Elizabeth Thorns Chair, School of Legal & Public Administration Appearing for the Union: Nick Coleman Counsel Hearings in this matter were held in Toronto on January 7, 1999 and September 28, 2000. 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It relates to evidence the Union may use to establish that the College had the work available to give preference to full- time positions, as opposed to partial-load or sessional positions. In the totality of the situation, the fact that circumstances relating to the three current employees might also be relevant to an alleged violation of article 2.03B, does not, by that fact alone, render the discussion at the Step One meeting inconsistent with an alleged breach of articles 2.02 and 2.03A. It simply means that evidence of such assignments relating to current employees may be relevant to either alleged violation. Moreover, Mr. Fogel acknowledged that the Union never stated in the grievance meeting that it was claiming that the three current employees were entitled to regular full-time employee status, as might be expected under an alleged breach of article 2.03B. Mr. Fogel acknowledged that the only remedial claim the Union ever made at the grievance meeting was that the College should create three regular full-time positions in the bargaining unit, a remedy that is consistent with alleged breaches of articles 2.02 and 2.03A but is not consistent with an alleged breach of article 2.03B. The single statement made in the Step One grievance meeting on May 7, 1997 that is inconsistent with the grievance as filed, i.e. a grievance regarding an alleged breach of articles 2.02 and 2.03A, is the identification by the Union that the article allegedly breached by the College was article 2.03B. Everything else 15 stated by the Union at the Step One grievance meeting was consistent with the grievance as filed and, thus, was consistent with an alleged breach of articles 2.02 and 2.03A, and not art±cle ~.03B. Accordingly, we must conclude on the weight of the evidence that the reference to article 2.03B at the Step One grievance meeting, instead of articles e.0e and 2.03A, was a mistake; it was a technical error which did not change the nature of the grievance from that which was originally filed. The fact that the Union continued this technical error by referring to article 2.03B in its "Re: line" in its letter to the College dated May 22, 1997, (which was its response to the College's Step One Reply), does not change the fundamental nature of the grievance as filed, any more than did its reference at the Step One meeting. The unchallenged evidence of the College establishes that the Union repeated its reference to article 2.03B at the Step Two grievance meeting on May 29, 1997, However, apart from the express reference to article 2.03B at this meeting, just as at the Step One meeting, the Union said nothing that was inconsistent with the fundamental nature of its grievance, as filed, and reiterated that the remedy it was seeking was the creation of three full-time bargaining unit positions which is a remedy appropriate for an alleged breach of articles 2.02 and 2.03A, not article 2.03B. The College confirmed in evidence that at the Step Two meeting the Union did not seek to obtain regular full-time employee status for any 16 of the currently employed individuals whose circumstances were under discussion. The Union did not seek the remedy that would be expected if the grievance were alleging a breach of article 2.03B. Moreover, the Union referred again to the expansion of programs at the College and the non-replacement of full-time personnel who had previously retired. These references were consistent with the assertion under article 2.02 and 2.03A that the College should create three new full-time bargaining unit positions. Just as was the case at Step One, the reference to article 2.03B at the Step Two grievance meeting was a mistake, a technical error. The details of the discussions and letters between the parties throughout the grievance procedure demonstrate, unequivocally, that the subject of the grievance was in relation to an alleged breach of articles 2.02 and 2.03A of the collective agreement, not article 2.03B. The College asserted that the Board should draw an adverse inference against the Union for its failure to call evidence. Because the Union's grievance as originally filed was a grievance regarding an alleged breach of articles 2.02 and 2.03A, the Board finds that the Union's decision not to call evidence reflects its agreement with the evidence brought by the College that throughout the grievance procedure, the Union named article 2.03B as the article allegedly breached by the College. What can be concluded from the Union's decision not to call evidence is that it had made a determination not to challenge the College's 17 ÍÖ íÎÈÛÊÓÍ ÈÍ ÙÍÊÊ×ÙÈ Ú× ÓÎ úÍÛÊØ ÈÍ ÈÔÛÈ ÚÃ ÖÛÙÈ ÈÍ ÍÖ ïÊ ïÉ ÈÍ ÚÃ ÛÈ ÉÈÛÕ× ÈÍ ÍÖ ÍÎÐÃ ÚÇÈ ÍÖ ÅÍÊÑ ÈÍ ÉÍÇÕÔÈ ÈÍ ÍÎÐÃ ÓÉÉÇ×É ÓÈ ÈÍ ÍÖ ÈÍ ÈÔÛÈ ÍÖ ÓÎÈ×ÎÈ ÍÎ Ú× ÈÍ ÎÍÎ× ÍÖ ÈÍ ÓÎ ÈÍ ÓÈ ÈÍ ÓÎ ÓÎ ÚÃ Ø×È×ÊÏÓÎ× ÍÖ ÚÃ ÎÍÈ ÈÍ ÓÎ ÇÉ ÍÖ ÇÉ ÓÈ ÍÖ ÓÈ ÈÍ ÉÔ ÈÍ ÈÍ ÓÈ ÓÈ ÈÍ Ô× ÓÈ ÛÎ ÈÍ Û ÓÎ ÚÃ óÈ Û Ú× ÛÎ ÍÖ ÓÉ Ú×