HomeMy WebLinkAboutUnion 15-11-121
IN THE MATTER OF AN ARBITRATION:
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
AND
ALGONQUIN COLLEGE (the College)
RE: Grievance Numbers: 2010-0415-0136 and 2010-0415-0099 – Article 2 - CE Hours
Appearing for the Union: Wassim Garzouzi
Appearing for the Employer: Jock Climie
Sole Arbitrator: Norm Jesin
Hearings Held: October 6, 30, 2014, November 17, 2014,
June 10, 2015, August 24, 27, 2015
AWARD
In this case the Union alleges that the College has violated the collective agreement b y
failing to staff teaching positions for English courses in its School of Business in Continuing
Education, with full time teachers rather part time ones. The Union alleges that this constitutes
a violation of Article 2 of the collective agreement between the parties.
In Continuing Education, teaching positions are almost exclusively held by part -time
appointees. Article 2 provides that in staffing teaching positions, the College must give
preference to full time teachers over sessional appointees and wha t is referred to as partial-
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load teachers. Partial load teachers are defined in Article 26.01 B of the collective agreement as
employees regularly teaching more than 6 and up to 12 hours per week. They are included in
the bargaining unit. Sessional teachers are teachers who teach on a sessional basis. They are
not included in the bargaining unit. Part time teachers teach no more than six hours per week
and are not included in the bargaining unit . Article 2 does not refer to part-time employees and
does not contain any express obligation to provide preference to full time employees over part
time employees. It should be noted that although there is no general obligation to prefer full
time positions over part time ones, Article 27.05 does require that in case s of layoff, the College
must give preference to the continuation of full time positions over partial load, sessional and
part time appointments.
In an earlier decision in this matter I dismissed a preliminary motion brought by the
College in which the College sought a ruling that Article 2 of the collective agreement had no
application to its Continuing Education program (see Algonquin College, [2014] O.L.A.A. No.
107). At paragraph I made the following comment:
… there is an ongoing discussions and evolution in the cases about the extent to
which the collective agreement may be applied to compel the College to convert
part-time positions to full time positions. It is not clear to me at this time what if
any circumstances, might support such a result, particularly in CE, where there is
an ongoing practice of utilizing part time staff to teach the available courses. I do
not think it is appropriate to determine, on a preliminary basis, that such a claim
cannot be pursued.
As a result, the Union continued to pursue its claim before me. This decision deals with a
further preliminary motion brought by the College. In this motion, the College seeks to have the
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grievance dismissed on the basis that the Union is not entitled to rely on any assignments that
the College has made to have Business English in continuing Education taught by part-time
employees. It is the College’s position that because there is no express obligation to provide
preference to full time positions over part time ones, that a claim under Article 2 cannot
succeed against assignments to part time personnel. Alternatively, the College asserts that even
if somehow, the Union can challenge assignments of part time employees in continuing
education, any preference given to full time employees in Article 2 is expressly subject to
“operational requirements”. The College asserts that the evidence has established that it has a
long time practise of employing part-time employees to teach courses in continuing education
and that it has establish the operational justification for doing so. In the face of that evidence
the College asserts that it has established the operational requirem ent for its use of part-time
employees in continuing education and that therefore the Union cannot succeed in its claim for
preference for full time personnel.
The Union claim has its genesis in a series of cases in which arbitrators have suggested
that Colleges under this collective agreement do not have an unlimited right to employ part -
time teachers in preference to full-time teachers. For example, in Algonquin College (2003), 73
C.L.A.S. 194 (P. Knopf), arbitrator Knopf rejected an Article 2 claim in which the Union alleged
that the College failed to give preference to full time employees over part time ones. Indeed, in
paragraph 16 of the decision, after reviewing the requirement in Article 2 for the College to give
preference to full time teachers over sessional and partial load appointments, but not part
timers, she stated:
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… it can only be concluded that the collective agreement does not intend to
restrict the use of part-timers as it does the use of sessionals and partial-load
appointments.
However, at paragraph 42 of her decision arbitrator added the following end note:
If there had been any evidence that the staffing patterns had been designed or
intended to erode the bargaining unit or circumvent the collective agreement,
this decision would have been very different.
Following arbitrator Knopf’s end note, in a number of subsequent decisions, arbitrators
refused to rule that they did not have jurisdiction to consider a challenge to the assignment of
part time employees rather than full time ones. Two of those decisions are St. Lawrence College
(2005), 81 C.L.A.S 176 (O. Shime, O’connor and Kelly), and Fanshawe College, [2005]
CarswellOnt 10980 (P. Picher, S. Murray and R. Hubert. In Fanshawe, at paragraph 47, a
majority of the Board concluded that:
… part-time hours are available for consideration by the Union and a board of
arbitration in an article 2 grievance in circumstances where it can be demonstrated that
the staffing scheme agreed to by the parties, as reflected in article 2, as situated in the
collective agreement as a whole, is being undermined by the manner in which part-time
hours are assigned. … if hours are being assigned to part-time positions in a manner that
is thwarting the staffing scheme agreed to by the parties in article 2, the assignment of
such part-time hours risks opening the door to an erosion of the bargaining unit and/or
the circumvention of the collective agreement.
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The Union asserts that subsequent cases have fallowed these comments in Fanshawe
and have stated that part time hours may be considered in a claim for additional full time
appointments, if it is determined that the use of part time teachers undermines the staffing
scheme agreed to in the collective agreement or otherwise leads to an erosion or
circumvention of the collective agreement. According to the Union, these cases support the
notion that there is room for the Union to challenge the assignment of part time personnel in
preference to full time personnel under the collectiv e agreement. The Union asserts that it is
premature to dismiss a claim such as the one in this case on a preliminary basis. Rather, the
Union must be allowed an opportunity to establish that the assignment of part time personnel
undermines the integrity of the bargaining unit and/or, that is in the words of the Picher panel
in Fanshawe, contrary to the staffing scheme agreed to by the parties.
Although the motion being considered is a preliminary one, the parties did present
substantial evidence in support of their positions. The evidence pertained to the extent of the
practice of utilizing part time teachers in continuing education, as well as the reasons for such
practice. In addition there was evidence pertaining to the similarities and difference betwe en
courses taught during the day and those taught in continuing education. The Union evidence
consisted of the uncontested statement of Elizabeth Skittmore and the evidence of J. P.
LaMarche. The Employer evidence consisted of the evidence of Linda Rees. In addition the
parties agreed that I could consider any evidence already presented in the prior preliminary
motion referred to above.
Ms. Skittmore is a full time English Professor at the College with over 20 years’
experience at the College. She has also been coordinator of English in the School of Business for
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five years until in or about 2014. According to Ms. Skittmore at the time of her statement there
were seven English courses being taught during the day in the School of Business and seven
taught during the evening in the Continuing Education program – also on the School of
Business. During the day the courses were taught either by full time teachers or partial load
and/or sessional teachers. During the evening they were taught by part-time teachers. Ms.
Skittmore stated that there was no distinction in the curriculum between those courses taught
in the evening and those taught during the day. She also stated that day and evening courses
shared the same outline and description. They were evaluated us ing the same assignments and
tests, although there were final exams in the evening courses but not in the day courses. She
also stated that students were entitled to take both day and evening courses to obtain the
necessary credits for their program. She noted that one teacher had taught English in both the
day and the evening program. Essentially, she stated that the only distinction between the day
and evening courses is that the day courses are taught by bargaining unit personnel and the
evening courses are not.
Mr. LaMarche is also a teacher in the School of Business. He started as a sessional in or
about 2002 and later became part time and then full time by 2005. He was elected chief
steward in or about 2006 and has been chief steward since then. He s ucceeded Ms. Skittmore
as English Coordinator.
According to Mr. LaMarche he was not aware that there were no full time personnel
teaching in continuing education until he was made aware of that fact in 2011 in a conversation
with Ms. Skittmore. It was that conversation that ultimately led to the grievance at issue in this
case.
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Linda Rees testified for the College. She has been employed in the Management Centre
under the umbrella of continuing education since 1986. She has been the head of the
Continuing Education Committee for the last ten years. She testified that the administr ation of
continuing education was markedly different than day time programming. She testified that for
day courses, students apply for a program in the fall and acceptances are confirmed starting in
February. Most courses are picked by May and teachers are able to receive their SWF
assignments in May in accordance with the collective agreement. Most day time students are
aged 17 – 24.
Continuing Education courses are historically taken by older students on an individual
course basis rather than a program basis. Most students are over the age of 25. They take
courses to enhance their skills or to facilitate a career change. Marketing for fall courses does
not begin until the June-July period – well after the SWF assignments are made. The number of
students in any given continuing education course averages around 12 whereas there are
generally 35 students in a daytime course. Ms. Rees also noted that the source of funding for
continuing education is different from that of day programs as courses are funded fr om
enrollment. If full time teachers were utilized courses would require 35 students per course in
order to break even.
For these reasons, the College has hired part time teachers to teach continuing
education courses for as long Ms. Rees has been employed at the College. Ms. Rees noted that
the part time teachers are generally working professionals who teach to supplement their
income. They are paid less than bargaining unit teachers. It is only through the use of part time
teachers that many continuing education courses can be maintained. Ms. Rees noted that there
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has been a 35% reduction in the number of continuing education courses on a provincial basis
over the last 7-8 years.
In cross-examination of Ms. Rees the Union sought to challenge many of her assertions
as outlined above. For example, Ms. Rees conceded that daytime programming and continuing
education received funding from the provincial government. She also conceded that students in
daytime programming could make last minute changes to their course schedule adding or
dropping courses just prior to the commencement of the course, as students might do in
continuing education. Ms. Rees also conceded that it might be possible for the college to revise
SWF assignments after they are first issued in May to accommodate changes necessitated by
course additions or cancellations, either in daytime programs or in continuing education. The
Union also noted that the reduction in the number of continuing education courses could not
be used as a reason to employ part time teachers because the College employed part time
teachers even at a time when enrollment was high. Finally, Ms. Rees conceded although the
College hired part time teachers to teach in continuing education, there were occasions where
courses in continuing education were taught by partial load employees employed in the
bargaining unit. This would have occurred where a teacher was assigned a course as a part time
teacher, but later picked up additional hours so that under the terms of the collective
agreement, they would be converted to a partial load designation. However, Ms. Rees asserted
that this scenario was becoming less frequent as the College became more adept in
administering its assignments to ensure that part time employees remained part time
employees. Finally, Ms. Rees conceded that many of the courses taught in continuing
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education, including English courses have substantially the same curriculum as those courses
taught during the day.
In its submissions, the Union has asserted that th e preliminary motion raises the
following three issues:
a. Is there a distinction between CE and daytime delivered programs, for the
purposes of article 2?
b. Has the College established that article 2 does not apply to part -time hours?
c. Has the College established that it has operational requirements justifying the
dismissal of the grievance on a preliminary basis?
I do not agree that the questions as framed by the Union are of assistance in dealing
with this motion. I would note that there is no express clause in the collective agreement (other
than Article 27.5 which applies in cases of layoff only) which protects the work of the bargaining
unit from being performed by part time personnel. So the real question is to what extent is the
College restricted from assigning bargaining unit work to part time personnel.
I begin with the obvious and accepted point that whereas the language of Article 2 of
the collective agreement clearly places a restriction on the use of partial load and sessional
teachers, no express restriction is placed on the use of part time teachers. It is trite law that a
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restriction in the use of non-bargaining unit personnel may be implied from the language of the
collective agreement such that excluded personnel may not be used to an ex tent that would
allow an Employer, motivated by bad faith, to intentionally erode the bargaining unit or
otherwise circumvent the collective agreement. (See for example, Algonquin College, at
paragraph 19, in which arbitrator Knopf cited North West Co., 57 L.A.C. (4th) 158 (Freedman)
and Irwin Toy, 6 L.A.C. (3d) 328 (Burkett)). To that extent, there is nothing remarkable in the
End Note inserted by arbitrator Knopf in her decision in Algonquin College. That restriction,
which is acknowledged and conceded by the Employer, is found not in Article 2, but in the
collective agreement as a whole.
In Algonquin College, arbitrator Knopf observes that the fact that the collective
agreement does expressly restrict the use of partial loaders and sessionals, but not pa rt timers,
makes it even more clear that an arbitrator has no express jurisdiction to restrict the use of part
timers under the collective agreement. Arbitrator Knopf illustrates the point with the following
comments in paragraphs 16-18 of her decision.
16. In contrast, the Colleges’ collective agreement does have specific
language relating to staffing of teaching appointments. By creating specific
restrictions and yet omitting reference to part-timers, it can only be concluded
that the collective agreement does not intend to restrict the use of part-timers
as it does the use of sessionals and partial-load appointments. … because the
parties have failed to include part-time appointments within the restrictions in
Article 2, this leads to the conclusion that Article 2 does not operate to restrict
the use of part-time appointments.
17. This conclusion may appear to be counter intuitive at first. Why would
the parties not be deemed to restrict part-time assignments when the obvious
purpose of Article 2 is to give preference to full time positions and protect the
integrity of the bargaining unit as long as operational requirements can be met?
Without any contractual restrictions on the use of part-timers, a college might be
tempted to staff in a way that could erode the bargaining unit by making
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multiple part-time assignments. However, an arbitrator cannot make decisions
based on intuitive responses or impose his/her own preferred collective
bargaining or pedagogical models. An arbitrator’s role is to discern, i nterpret and
apply the intention of the parties on the basis of the language they have adopted
in the collective agreement.
18. It is presumed that the parties adopted the language of Article 2 for
rational reasons. They have retained this language for many years through
several rounds of collective bargaining. The parties consciously chose to give
preference to full-time positions of partial-load and sessional appointments.
They did not restrict the use of part-timers who are discreetly defined as a status
quite different than partial-load or sessionals. Therefore it cannot be implied or
concluded that part-time appointments would encompass sessional or partial-
load appointments as one group. Instead, part -timers must be viewed as a
separate entity that is recognized in various parts of the collective agreement,
but not factored into staffing protections provided in Article 2.02 and 2.03A. This
leads to the inevitable conclusion that an arbitrator has no jurisdiction to
interfere with staffing decisions with respect to the assignment of part-time
positions over full-time positions.
The statement in paragraph 18 that “an arbitrator has no jurisdiction to interfere with
staffing decisions with respect to assignment of part-time positions over full-time positions”
would at first instance seem to provide a clear answer to the grievance in this case. However
Ms. Knopf’s End Note from Algonquin clearly raises some doubt on the matter. In order to
consider how the End Note should be interpreted in light of the previous comments, it is
necessary to review the End Note in its entirety. It is expressed at paragraph 42 of the decision
as follows:
42. This award appears to be the first in the sector dealing with the
substantive question of whether Article 2 imposes restrictions on the use of part-
time teachers. I have concluded that the wording of Article 2 and the collective
agreement as a whole do not restrict the use of part -time appointments in the
same way that it does for partial-load and sessionals. I have reached this
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conclusion based on the strict wording of the collective agreement. However, it
must be noted that this decision was reached in the context of eviden ce where
there is absolutely no suggestion of any intent to erode or weaken the
bargaining unit. The Union may well have had concerns about the effect of
Dean’s Barkers’ staffing model, but there were no suggestions of bad faith or
anti-union animus. Further, while Dean Barker may have failed to take the
collective agreement into consideration when he made his staffing decisions, it is
also clear that he had no intent to undermine the Union, circumvent or diminish
the integrity of the bargaining unit. Dean Barker’s objectives were purely
pedagogical. He was also adamant that he intended to retain the use of full-time
faculty. This Award should not be viewed as an endorsement or criticism of such
a staffing program. Absent the jurisdiction to deal with the part-time staff, I have
no authority to pronounce whether this model complies w ith the spirit of Article
2 or not. But it is important to recognize that the Award is being made in the
factual context of a College and a Dean recognizing the importance of full -time
bargaining unit positions to the stability and successes of a program. If there had
been evidence that the staffing patterns had been designed or intended to erode
the bargaining unit and or the collective agreement, this decision would have
been different.
It seems clear, when considering the entirety of Ms. Knopf’s comments that any
restriction against the use of part-timers flows not from Article 2, but rather is to be implied
from the entirety of the collective agreement. Further the restriction to be implied is designed
to ensure that the College cannot use part-timers in a manner intended or designed to erode
the bargaining unit or otherwise circumvent the collective agreement. To put it another way,
part-timers may not be assigned in a manner that amounts to bad faith or anti-union animus.
Again, to that extent there is nothing remarkable or controversial in the End Note expressed by
arbitrator Knopf.
The End Note was considered by the Shime panel in the St. Lawrence College case. That
case dealt with an allegation that the Employer had violated Article 2 by filling full-time
vacancies with a combination of partial load, sessional and part time appointments. The
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Employer sought a preliminary ruling precluding the consideration of any part time
appointments. In paragraph 15 of that case the majority stated:
What was patently obvious to the learned arbitrator in Algonquin College, and
which had not been really addressed in previous cases, is that no mention is
made of part-time positions in Article 2. Accordingly, absent bad faith or anti-
union animus the utilization of part-time positions does not constitute a breach
of Article 2, since there is no specific requirement, as there is in the case of
partial load and sessional positions, that preference be given to full time
positions over part-time positions.
At paragraph 17, however, the majority made the following noteworthy comment:
17. While we acknowledge the use of part -time employees does not
constitute a violation of Article 2, it may very well be in the course of considering
operational requirements that there be some incidental evidence to be
considered dealing with part-time employees and we do not, at this stage of the
proceedings, in the absence of a specific factual context, exclude the possibility
of such evidence. The introduction of such evidence must b e decided on a case
by case basis.
It seems that the panel appears to agree that an arbitrator, absent bad faith or anti -union
animus, has no jurisdiction to consider whether the college gives preference to full time
positions over part time appointments. However, the panel did not preclude the consideration
of evidence of use of part timers in tandem with partial loaders and sessionals. One presumes
that it was open to consider whether the use of part time positions together with partial load
and sessional positions in that case, could support a conclusion that the college improperly
preferred partial load and sessional positions to full time ones.
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In addition, the majority went on to determine that the Union could continue to a ssert
that the assignments to part-timers eroded the bargaining unit. At paragraph 18, the majority
stated that such an inquiry would “require a board of arbitration to assess the full -time position
and to consider the part-time assignments in the context of reviewing the overall workload in
the bargaining unit and the operational requirements that caused the College to assign the
work as it did.” However, the majority went on to state at paragraph 20 that in making such a
case the burden of proof lies with the Union. “To merely state that the College has [assigned
part-timers] is merely to affirm its right. The Union must go further and establish how the
College has violated the collective agreement.”
In Fanshawe College, the union alleged that the college had breached Article 2 by failing
to give preference to full time positions in Art and Design division. According to the union in
that case more than half the hours were taught by a combination of partial load, sessional and
part-time appointments. The college sought a preliminary ruling preventing consideration of
any hours assigned to part-time personnel. The Board refused to grant that ruling. Instead, as
set out earlier in this decision, the Board stated that part time hours are available for
consideration where they demonstrate that the staffing scheme agreed to by the parties has
been undermined by the use of part time positions. The panel made the following further
comments at paragraphs 58 and onwards:
58. Part-time teachers fit within the staffing scheme set out in article 2
although they are not regulated by it. They do not stand in complete isolation,
they do not stand behind an impenetrable wall where, without recourse by the
Union, they can be utilized in a manner that erodes the bargaining un it or
thwarts the parties staffing scheme as incorporated in article 2, (with its
stipulated preference for regular full-time positions over partial-load and
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sessional positions) and as understood in the context of the collective agreement
as a whole.
59. While article 2 does not expressly regulate part-time positions, the
collective agreement as a whole clarifies their hours. In article 27.12, the College
is required to notify the Union periodically of all part -time personnel hired or
terminated. In article 7.02 (vi) the College is required, when asked by the Union
in a UCC meeting, to explain its rationale respecting its use of part -time teachers
and to consider the Union’s submissions regarding the feasibility of assigning
work on a full-time basis rather than on a part-time basis. …
60. Moreover, in article 27.05, when the College plans to lay-off or reduce
the number of full time employees, the College is under an obligation, subject to
operational requirements, to give preference to full-time positions over partial-
load or sessional positions …
61. The provisions of the agreement, when read as a whole, reveal the
intention of the parties that the part-time employees who are outside the
bargaining unit, are at the low end of the hierarchy. While the part-time teachers
are not in the bargaining unit, the parties both have recognized the importance
of their use in the staffing scheme established in the agreement and have
ensured that their use will be in co-ordination with full-time, partial load and
sessional teachers, and not in isolation from, or in conflict with, them.
Counsel for the College submitted that the notion of placing part-time positions on a
hierarchy of an agreed to staffing scheme constitutes an erroneous expansion of the conclusion
reached in Algonquin and St. Lawrence, that absent bad faith or anti-union animus, an
arbitrator has no jurisdiction to consider whether full time positions are being preferred to
part-time ones. Union counsel on the other hand, seeks to preserve the Union ’s ability to
demonstrate that the use of part time positions in continuing education is inconsistent with the
“staffing scheme agreed to by the parties” and therefore, is inconsistent with article 2 and/or
the collective agreement as a whole.
To consider these submissions, the Fanshawe case need to be examined more carefully.
First, at paragraph 44, the majority clearly indicates that is in agreement with “much of the
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decision” in arbitrator Knopf’s award in Algonquin. Further, at paragraph 50 she summarizes
five important conclusions drawn from the decision in St. Lawrence. They are as follows:
1. That absent bad faith or anti-union animus the utilization of part-time
positions does not constitute a breach or Article 2.
2. Than “it may very well be that in the course of considering operational
requirements [under article 2] there may be some incidental evidence to be
considered in dealing with part-time employees”.
3. That “if a vacancy had been created in a full -time position, the Union would
be entitled to grieve either on the basis that there had been a violation of
Article 2, in that preference was not given to full time positions over
sessional or partial load persons, or alternatively, in a general way, by
maintaining the College had eroded the bargaining unit by assigning the work
to part-time employees.”
4. That “[t]hat would require a board of arbitration to assess the full-time
position and to consider the part-time assignment in the context of the
overall workload in the bargaining unit and the operational requirements
that caused the College to assign the work as it did” and
5. That the College, thereby, “is not allowed a free hand in eroding the
bargaining unit”.
When Algonquin, St. Lawrence and Fanshawe, are all read together, it appears that the
Picher panel has arguably accepted the proposition that the assignment of part-timers must be
found to have been designed or intended to erode the bargaining unit or circumvent the
collective agreement before it will be found to have been in violation of the collective
agreement. This might occur if the college converts existing full time vacancies into part time
position in order to circumvent its obligations under the collective agreement. In addition if the
Union could establish that existing full time vacancies in day programs are moved into
continuing education in as a means of avoiding the College’s obligations to fill full time
vacancies or to avoid its obligation under Article 2 to prefer full time positions over part time or
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sessional appointments, again, that may give rise to an argument that part timers are being
assigned improperly to circumvent the collective agreement.
Furthermore, like Shime before her, arbitrator Picher also accepts that evidence of the
use of part-timers may be relevant to establish a violation of article 2 , even where there is no
conversion of full time vacancies to part time appointments. For example, where part-timers
are used intentionally to avoid the use of partial loaders (who are included in the bargaining
unit), that may give rise to an argument that the use of part -timers is designed to avoid the
College’s obligation under article 2 to prefer full time positions over partial load posit ions. One
can contemplate a situation in which a series of partial load vacancies are converted to part -
time appointments for the sole purpose of avoiding the College’s obligation to prefer full time
position over part-time ones. That may be one example in which the Union may a rgue that the
appointment of part time teachers was designed to avoid the College’s obligation under Article
2 and might therefore be in violation of the collective agreement.
The mere existence of the appointment of part time positions, no matter how
numerous, cannot however be in violation of the collective agreement where it cannot be
shown that the appointments were designed or intended to avoid the College’s obligations
under Article 2 or the collective agreement generally.
Looking back at the first question posed by the Union, in my view, the question is not
whether there is a distinction between day-time delivered programs and continuing education
delivered programs. Rather, the issue to be determined when considering part time hours, is
whether the use of part time teachers was intended or designed to avoid the College’s
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obligations under Article 2 or under the collective agreement as a whole. This approach is
confirmed in a series of decisions by arbitrator K. G. O’Neil involving these same parties. In
Algonquin College, [2007] CarswellOnt 10683, (Algonquin 2), the Union claimed that the College
was in violation of Article 2 by failing to give preference to full time positions in the School of
Media and Design. The Union relied on part time hours in support of its claim and the College
raised a preliminary objection to the Union’s ability to rely on such part time hours. In that case
the arbitrator dismissed the College’s motion as the evidence established a systemic practice of
avoiding assigning work in a manner that would create partial load or sessional positions. As a
result, the arbitrator concluded at paragraph 49 that the “evidence was consistent with,
although not conclusive of, circumvention of the bargaining unit and the negotiated
classification scheme of the collective agreement”.
In three follow up decisions, however, after hearing full evidence including evidence
regarding the use of part time hours, the Union’s claims for full time positions based on those
hours were dismissed. In an unreported decision dated September 14, 2007 (Algonquin 3), the
arbitrator considered the Union’s claim for full time positions in the Print Media program. At p.
8 of that decision the arbitrator noted that “There was no suggestion that the assignment of
part-time teachers in the Print Media program is done intentionally to undermine the staffing
scheme, erode or avoid the bargaining unit.” At p. 9, the arbitrator further noted “there is no
evidence that partial load positions have been reduced and replaced by part-time positions and
thus no case of erosion of the bargaining unit by failure to replace partial -load bargaining
positions”. Those conclusion did not fully answer the Union’s claim however as the arbitrator
left open a consideration of whether there was a misuse of part time hours from which an
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avoidance of the collective agreement could be inferred. On that point the arbitrator made the
following comments at p. 10-11:
[The] level of use of part-time hours in itself, or as compared to the total o ther
hours, is not, in my view, sufficient to warrant an inference of misuse on the
evidence before me. And, as noted above, other aspects of the issue, such as
erosion or intentional avoidance of the bargaining unit, are not supported by the
evidence. As the evidence stands, to accept that the union has made out a prima
facie case of erosion of the bargaining unit or misuse of part-time hours in the
circumstances of this portion of the grievance, it would be necessary to infer
from the fact that the College could have created one full-time workload out of
the non-full-time hours, including part-time hours in the limiting semester, that
is misusing part-time hours, unless it can justify their use on the basis of
operational requirements. The problem with that is that there is no discernable
difference between that concept and a requirement for a preference of full -time
over part-time positions at all times, not just on layoff-off and reduction of the
full time complement. The current wording of the collective agreement, as
interpreted in the evolving jurisprudence, does not support such a requirement.
In a further unreported decision dated September 17, 2007, (Algonquin 4) arbitrator
O’Neil dismissed a claim for full time positions in the Theatre Arts prog ram for similar reasons.
Arbitrator O’Neil’s last decision in this saga was dated May 20, 2008 and concerned a claim for
full time positions in the school of Media and Design. In that case the arbitrator found at p. 16
that over 10 years, “the Advertising program had been run on the basis that partial load
positions were to be avoided wherever possible”. As a result she determined that a prima facie
case of avoidance of the collective agreement had been established. However, she then went
on to consider whether the use of part time personnel could be justified on the basis of
operational requirements. She considered the College’s evidence that the use of part -time
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personnel in the programs at issue were designed to enhance the students’ experience by
adding faculty members currently working in the industry. At p. 20 of her decision she
concluded that management decision to use part time personnel based on operational
requirements must be given “some deference, unless the employer’s assessment of the
situation is shown to be improper in some sense such as being unreasonable or in bad faith.” As
a result, the Union’s grievance was dismissed.
Regarding this last comment, I would note that the obligation in Article 2 to provide
prefer full time positions over partial load and sessional appointments is subject to operational
requirements. As there is no obligation to prefer full time positions to part time ones, there is
no requirement to justify part time appointments based on operational requirements.
However, in considering whether the assignment of part time personnel was improperly
designed or intended to circumvent the collective agreement, a consideration of operational
requirements would be relevant in determining the intention and/or bona fides of the Coll ege.
In that regard, I would register my agreement with the notion that some deference should be
given to management decisions to justify the use of part -time personnel based on operational
requirements. I would observe that the degree of deference might b e less where there is an
actual erosion of bargaining unit positions as opposed to circumstances in which the Union
seeks additional full time positions which had not previously existed. I would also note in
general, the degree of deference to be given to the College’s reasons for using part timers
should be higher than the deference given to the reasons for relying on operational reasons in a
standard Article 2 claim. That is because as the Union has correctly pointed out, in a standard
Article 2 claim, where the evidence shows that partial loaders or sessionals are being preferred
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over full time positions, the onus is on the College to establish its operational justification.
Regarding the use of part timers, the onus is on the Union to show that the assig nments were
intended or designed to erode the bargaining unit or circumvent the collective agreement. The
operational justification put forward may assist in determining whether the assignments of part
time teachers were so intended. As a result, when considering the College’s operational
justification for the use of part time personnel, I would agree with arbitrator O’Neill’s comment
that deference should be given to the employer’s assessment unless it is shown that
operational requirements are relied on are “unreasonable or in bad faith”.
In applying all of these cases to the one before us I would note the following:
First, in this case there is no evidence that the use of part -time personnel has resulted in
an erosion of the bargaining unit, intended or otherwise. There is no suggestion that full time
vacancies or partial load vacancies have been converted to part time assignments. Nor does the
evidence disclose that day courses taught by full time teachers or partial load teachers are
being shifted to continuing education in order to convert those positions into part time ones.
Instead, the evidence discloses the College has utilized part time teachers routinely in
continuing education since at least 1986. Furthermore, rather than disclose that the number of
courses in continuing education is growing at the expense of day time programming the
evidence discloses that there has in recent years been a 35% reduction in enrolment in
continuing education. It is true, as the Union asserts that this reduction does not take into
account growth in on-line courses. But still, the evidence does not disclose any growth in
continuing education or in the use of part time personnel and instead suggests the contrary.
Nor does the evidence disclose that larger classes, normally taught during the day are being
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shifted into continuing education. In the face of this evidence, not only must I find that the use
of part time personnel has not eroded the bargaining unit, but acceptance of the Union position
could result in a significant accretion to the bargaining unit by compelling the College to assign
full time positions in continuing education where it had not done so in the past.
Still there is some suggestion in the evidence that the manner of utilizin g part time
personnel may have been administered to avoid the collective agreement. Ms. Rees candidly
acknowledged that there have been rare instances in which teachers originally hired as part
time had been converted to partial load when they have added e xtra courses to their
assignment. Ms. Rees candidly acknowledged that this is a result which the College sought to
avoid and that over time the College had become more adept at ensuring that partial load
teachers would not be given teaching assignments in continuing education. Like the decision in
Algonquin 4, such an approach by the College might be interpreted as a prima facie intent to
avoid the collective agreement such that the part time hours may be considered.
However, again, like the situation in Algonquin 4, I have determined that the College has
put forward a reasonable and bone fide operational justification for its use of part time
teachers in continuing education. First, the classes in continuing education are significantly
smaller. This alone creates a bona fide justification for the use of part time personnel as the
College has established that average class sizes in continuing education would have to be higher
in order to economically support the use of full time personnel. In addition, I accept that the
numbers enrolled per class are more fluid until the last minute making the certainty that the
class will be taught and not cancelled less certain. Also unlike regular daytime students, most
students in continuing education do not take their courses as part of a full program, but rather
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they take the courses on a course by course basis to enhance particular skills or educational
requirements. For these reasons the College has determined that it is preferable to hire
industry professionals on a part time basis (rather than full time academic teachers) to teach
courses in continuing education. That has been the College’s approach since at least 1986, as
long as Ms. Rees has been employed by the College.
Although the Union has put forward some reason to challenge some, though not all, of
the justification for the use of part time personnel put forward by the College, I find the
operational justification for the use of part time personnel as described in the evidence to h ave
been honestly and reasonably held by the College. The evidence does not support a conclusion
therefore that part time personnel has been used to improperly avoid the obligations of the
College to apply the Collective agreement to continuing education.
I would add that my decision does not mean that continuing education is excluded from
the collective agreement in perpetuity. Clearly it is not. For example if it becomes apparent that
daytime courses are being shifted to continuing education in order to avoid the collect ive
agreement the decision might be otherwise. In addition, if circumstances change so that the
operational justification can no longer be borne out, but the use of part time personnel is
maintained in order to avoid the collective agreement, the decision might again be otherwise.
Nor am I suggesting that the College does or does not have a free hand to assign part
time personnel to teach newly established programs. However, in a case such as this where
there has been a long established history of utilizing part time personnel for operational
reasons which I have found to be honestly and reasonable held, I cannot find that the use of
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part timers in continuing education in this case was designed or intended to erode the
bargaining unit or otherwise circumvent the collective agreement.
For all of these reasons the College’s motion for dismissal is upheld and the grievance is
dismissed.
Dated at Toronto, this 12th day of November, 2015
_____________________
Norm Jesin