HomeMy WebLinkAboutUnion 99-10-25-and-
Brian Scharf had held a series of partial-load and sessional appointments in the
Automotive Services Technician Program of the School of Access and Skills. After the
last of them ended, a posting for a full-time position as an instructor In the program went
up on June 22nd, 1998. Scharf applied for the position and got it He began teaching in
the fall term that started on August 315t. On October 26th the union formally grieved
that the position "is improperly classified and should be that of a professor." The claim is
for reclassification as full-time professor. Although not mentioned in the grievance form,
the reclassification would carry a higher salary scale.
The College took two objections to the grievance, repeated at the opening of the
hearing: the grievance is untimely and, in any event, it is not propedy one the union may
bring.
The timeliness objection Is govemed by the second paragraph of art 32.10:
32.10
IAI grievance [by a union local] shall be submitted...within 20 days following the
of the from the of the circumstances
expiration
2O
days
occurrence
or
origination
giving rise to the grievance...
In light of the union's argument on this objection, to allow easy comparison we also set
out relevant parts of art. 32.02, defining the time limit for grievances by individual
employees:
32.02 . ..['l']he employee shall discuss [the complaint] with the employee's im-
mediate supervisor within 20 days after the circumstances giving rise to the com-
plaint have occurred or have come or ought reasonably to have come to the
attention of the employee...
The College says that the union put in the grievance after the time limit in art. 32.10 had
expired. The parties agree that the time limits are mandatory and cannot be extended
by the board.
As we count back from October 28th, for the grievance to get within the 40-day
limit of art. 32.10 "the occurrence or origination of the circumstances'giving rise to the
grievance" must have happened on or after September 18th. On the face of the griev-
ance form and in substance, this Is a grievance against the College's conduct in classi-
fyincj the position as that of an instructor. The conduct of classification is "the circum-
stances giving rise to the griivance'. Did the College do that on or after September
18th?
Our answer must be no. On the evidence we find that $charf's Standard Work-
load Form was created on August 28th. It shows the courses he would teach in the fall
term of 1998. The union says that only when they got the SWF could they know what
the courses would be. Mainly the union complains that they include Theory. We see
that, according to the class definitions, Theory is something an instructor would not
teach but that a professor might. Since the SVVF shows such an assignment the Col-
lege must have decided on and made the classification before the SWF was created.
Indeed, although there Is no specific evidence on the matter, we think we can Infer from
the agreed facts that the College decided on both the course assignments and the
classification before drafting the posting. The vacancy occurred because the previous
incumbent, classified as a professor, had retired. At that point the College rethought the
requirements of the position and decided that the replacement teacher should be class-
ified as instructor. Whether we choose some date shortly before June 22rtd or shortly
before August 28th, "the circumstances, of the College's conduct In classifying the posi-
tion as that of an instructor "occurr[ecl]" well before September 18th. Under the wording
of art 32.10, that is so even If the union did not know and could not reasonably have
known what the College had done when the College did ft. Article 32.02, governing
individual grievances, contains specific alternatives for measuring time: the days may
run from when the individual learns or might reasonably have leamed of the drcum-
stances giving rise to the grievance. Article 32.10 sets out no such alternatives. The
grievance here is accordingly out of time.
The union has three answers. First, the grievance is continuing and therefore the
complaint might be grieved at any time. Then, we should hold that "the circumstances
..."occurr[ed]" when $charf actually taught the assigned courses. Finally, we should
read the 40-day time limit "subjectively'.
On the first point we again look at exactly what the grievance is about: in the
Statement of Grievance in the grievance form the union complains about the College's
conduct in classifying the position as one for an instructor and not for a professor. That
-3-
stances giving rise to the complaint" and that, for the purpose of a subjective interpreta-
tion, only when he was actually teaching the courses could he or the union have known
their nature. On this argument time begins to run when he had done enough teaching to
allow him the knowledge. The diiiculty with the argument is that the SWF -- all we have
before us showing $charf's duties -- is decisively against ft. The SWF says that the
term starts on Monday, August $1St, and that $charf has the job of teaching Theory as
one of the assigned courses for twelve hours each week. Surely we can infer that he
would have known as soon as he began preparing to teach the assigned courses or, at
the least, began teaching them during the week of August 31 st what they factually re-
quired him to do. We do not think that he would reasonably have needed until Septem-
ber 18th or later to realize what the substance of the Theory course was nor, having the
realization, to bring in the union. Therefore, even if we thought that actually teaching the
assigned courses was necessary, we could not find on a subjective interpretation of art.
32.10 what was needed for the count to start on or after September 18th.
To show very early starting times for the count, the College points to the posting,
a copy of which came to the union in June, and to the Calculation of initial Starting Sal-
ary, a copy of which the union got in ^IJgLlst. The College argues that the union knew
enough about the position and the previous incumbent at least to have prompted some
inquiry when each of the documents came in. We know, and we take it that the union
knew in June, that the previous incumbent had been classified as a professor. But there
was no evidence or agreed facts allowing an inference that the posting said enough
about the duties to put the union on notice that the position's content was to remain sub-
stantially the same. The Calculation document on its face does not say anything about
the nature of the position and the parties added nothing about it at the hearing. We
therefore cannot hold that the subjective reading of art. 32.10 makes the count start in
June or August.
The College also argues that the time should at the latest run from the date the
union got their copy of the SWF. That date, the College says, Is September 4th or
earlier. We agree.
,,% On me union's own argument, the SWF's content is enough to show me alleged
! misclassification or at least to make further Inquiries important. According to Bernard
Bouianger. the local union president, he first saw the SVVF in the union office some time
between the middle and the end of September. He does not know when it first got there.
He said, however, that the chief steward, Oecelia Reilly, sometimes picked up and ex-
amined the union's mail before he saw it Fleilly herself was not called to testify.
To come to a pretty solid conclusion about the time range of the SWF's arrival in
the union's office, we look to the evidence of witnesses the College called. John Mercer,
the program coordinator, was dear that 8chaff and the dean, Thomas Smith, signed the
SWF on Friday, August 28~, as shown on its face. It then went to Smith. While Smith
does not remember when, according to College procedures, he sent it to the Staff and
Student Relations office, his usual practice was to forward all SWFs immediately upon
receipt. Louise Bowry, the executive secretary to the Vice-President Staff and Student
Services, confirmed that Smith always got SWFs to her as soon as they were signed.
We therefore find that Smith put Scharf's SWF into the inter-office mail some time on
August 23th. Since the mail schedule gets things delivered in one-half day to a day, the
SWF ardved in Bowry's office on Monday, the 31st. Bowry does not remember when
she sent it on to the union, but she told us that her practice was to copy any SWF and
then immediately put it into inter-office mail, addressed to the union. The union's office
is only one floor up in the same building and its mail box is not far away. On the evid-
ence we find that Scharf's SWF went from Bowry into the'mail on or around the $1St,
ardving in the union's mail box on or around Tuesday, September 1st. On the evidence
we could not find that it got there later than Wednesday, the 2nd. Perhaps Reilly or
Boulanger took it from the box shortly after it ardved. Since there is no evidence on that,
we make no finding. What we find is that it was there for them to get it.
The result is that the union's president or its chief steward had a reasonable op-
portunity to read the SWF no later than early during the first week of September. Had
either done so, the course assignments and especially the assignment of Theory would
immediately have been apparent. That, we think, would reasonably have been enough
to make them aware of the fads to bottom a complaint that the position had been mis-
classified. But even if not, it would have been enough, as the union said during argu-
ment, to make them check further by comparing the SWF's content to that of others with
similar SWFs classified as professors. So, either by reading the SWF when it arrived in
me union's mail box or by that and also checking others' SWFs against it, the union's
president or the chief steward and, for the purpose here, the union would have leamed
of "the occurrence or origination of the circumstances giving rise to the grievance". We
cannot think that the checking would reasonably have taken from September 1st or 2nd
until September 18th or beyond. On a subjective reading of art 32.10, then, the "circum-
stances" still "occurr[eo']" before September 18th, that is, more than 40 days before the
grievance was put in.
The result is that, whether we Interpret art. 32.10 the way its specific wording dir-
ects in contrast to that of art. 32.02 or we give it a subjective reading the union asks for,
the outcome Is the same. The grievance was not brought In time.
The College's timeliness objection Is allowed. We therefore need not deal with
the other objection.
The grievance is dismissed.
DATED at Toronto, Ontario, this 25th day of October, 1999.
I have read the Majority Award and, with respect, must dissent.
The Majority did not address the question of whether this constituted a proper
union grievance. In my view, the language of the Collective is quite specific
on this issue, and the matter clearly falls under what would a proper union
grievance. Mr. was obviously not entitled to file an individual grievance in that
his circumstances did not comply with Article 32.01, which reads:
Articles 32.02 to 32.05 inclusive apply to an employee who
has been employed continuously for at least the preceding
four months.
was not employed continuously for the four months prior to the events
giving rise to his grievance.
With respect to the other preliminary matter, the issue of timeliness, disagree with
the Majority decision. While this is a matter, there is ample jurisprudence
which supports the view that evidence should be clear and cogent. Certainly in this
situation the evidence is far from clear and as to exactly when the time limits
and absent that clear, cogent evidence, we should have heard the merits of
the case.
The Majority have erred, in my view, because I placed far too much emphasis on
the fact that the SWF was dated August 28, and ruled that the time limits commenced at
that or thereabouts. The evidence on that crucial point was not at all clear.
Because the time limits in this Agreement are mandatory, and because the onus rests with
the Employer to prove that the grievance was untimely, the evidence should be
clearest evidence on when the SWF was received comes Mr. Boulanger,
who testified the are completed by the Dean when they can then go to the
to the Vice President of and Student Services, and from there they are sent to the
Union They are supposed to be six (6) weeks before the oommenoement
of the new semester. In aotuality, however, to Boulanger, oome in dribs
and drabs. Some are received on time, some late, some later, and others not at all.While
he could not with any degree of it was his view that he saw this
partioular SWF some time between mid to the end of September which, if true, would
have plaoed the well within the time limits.Mr. Boulanger was asked several
times in examination about when he saw the SWF, and his answer was always
the same. He was not questioned on this point in cross-examination.
of the Management witnesses testified with any certainty about this
SWF.
Ms. evidence oonfiied Mr. Boulanger’s to the extent that Deans are not
prompt in submitting the although to be fair, Mr. Smith was more prompt than
important to this case, however. is that Ms. could not recall
processing the SWF in question nor did she have any systematic method for keeping
track of them. In addition, she had no notes regarding this and it was only “her
knowledge of Mr. Smith” with respect to his promptness which would lead her to
conclude that the was forwarded promptly.
She agreed in cross-examination that she had no independent record of either
receiving an or not. She also said she would have no knowledge if Mr. Smith never
forwarded an that he never did that, (but how. based on her evidence.
could she possibly know if he did not comply?) She agreed that if Boulanger testifed
that he sometimes did not receive at all, her evidence on that point would likely be
correct.
Mr. Smith. in cross-esamination testified he did not personally date the nor
did he have any independent recollection as to whether the date was tilled in when he
signed it. In re-examination he was asked what he meant when he said he did not
Do I recall signing this on
remember. His response was: “If the question is:
then the answer is
Mr. the witness who was under subpoena. admitted he
He also admitted. under
would have preferred not to be
that he did not specifically recall, nor did he have any written documentation indicating
when he referred the document to Smith.
It is quite understandable to this Member that some of the witnesses would not
have a vivid recall as to how and when the was processed especially given the
evidence that the are not always processed: that is precisely why the
document should not be treated as the pivotal document directs the case.
In my the Seneca College of Applied Arts and Technology decision
Mr. R. 0. has relevance in this case. I refer specifically to the following at
pages which read:
The point is: while the College raises this as a “preliminary
question” going to the timeliness issue is not
really “preliminary” at all because its detenuination depends
upon facts and the characterization of facts that are part
and parcel of the merits of the dispute. in
the
absence of agreement about what the evidence will be, it is
neither prudent nor possible to pin down “the occurrence or
origination of the giving rise the grievance...”
It is open to the union to argue, as it does, that the breach did
not occur until on or about October or sometime in
the period immediately preceding October 21, 1996.
It may tum out. as the College says. that there were
circumstances warranting a grievance which is to that
were performed by lab
or were performed to the that would bring
degree them
within the unit (arguably, 6 hours a However. unless
we say that anv “teachina” at all brings an individual within
the bargaining unit, (which we will no doubt hear argument
about,) the facts respecting the “timeliness issue” are
completely intertwined with the merits of the case.
In my opinion the above is relevant to this case to extent based on the
the
evidence before we cannot. with any degree of determine precisely when the
Union became aware of the alleged violation. As suggests, hearing
the merits we may conclude that there is no violation+ and must hear the merits to
determine that. Consequently, it is grossly unfair to deny the Union its right to proceed to
the merits based on what may or may not have happened in the past.
until we determine when the alleged Teaching of took
believe that
or whether. indeed, it took place at all. we cannot determine if this matter is out of
I further believe that the Majority are “nit-picking” when they refer at page 3 to:
The union then says that actual teaching of the
assigned courses is the the
giving rise to the grievance.” As we read the Statement of
Grievance in the grievance form that is not so. The union
does not grieve against what Scharf is teaching: as we have
said the union grieves against the alleged of
the position in light of what teaching.
Apparently
he is
content with the courses Scharf was assigned to teach or at
least indifferent to them such, the union complains only
about the College’s attempt to couple the assignment with the
instructor classification.
Isn’t what he is alleged to be teaching in fact the alleged
For the record. I reproduce the grievance in its entirety:
Statement of Grievance
Local grieves that the Full Time Instructor position in the School of
Access and Skills. is improperly classified and should be that of a Professor.
ê×ËÇÓÊ×Ø
Settlement
That the position be reclassified as that of a Full Time Professor.
The Majority state:
For the sake of the argument, we now assess when “the
circumstances giving rise to the or
in the light of a “subjective” interpretation of
art. 32.10. We assume that such an interpretation requires our
pinpointing the starting time of the count in much the same
way as that directed in the alternative for individual
grievances by art. 32.02. We might then find that the union
satisfied the limit union’s responsible
knew or might reasonably have known of the occurrence or
origination of the no earlier than September
So, we must determine is when precisely they
knew or might reasonably have known.
Exactly, but that is the major problem with the Majority’s decision in that the
employer never did with any pinpoint the time of the count.”
It is not reasonable, on the basis of the information before us, to determine that the
Union on August 28 or September 4. All we know is it knew some time before the
filing of the grievance, and we must hear the merits to determine the precise time.
I take issue with the Majority’s following assertion:
must confess at this point that we may have misunder-
stood the union’s argument about measuring the time from
when Soharf taught the
Perhaps the union was
saying that the nature of the courses Scharf was assigned is
circumstances giving rise to the complaint” and that, for
the purpose of a subjective interpretation only when he was
actually teaching the courses could he or the union have
known their nature. On this argument time begins to
when he had done enough teaching to allow him the
knowledge. The with the argument is that the
all we have before us showing duties is
decisively against it. The says that the term starts on
Monday, August 3 and that Scharf has the job of teaching
Theory as one of the assigned courses for twelve hours each
week. Surely we can infer that he would have known as soon
as he began preparing to teach the assigned courses or, at the
least, began teaching them during the week of August 31”
what they factually required hi to do. We do not think that
he would reasonably have needed until September or later
to realize what the substance of the Theory course was nor,
Therefore, even
having the realization, to bring in the union.
if we thought that actually teaching the assigned courses was
necessary, we could not on a subjective interpretation of
art. 32.10 what was needed for the count to start on or
September
Given that Mr. late in the day he would be an and given
the fact that there is a distinct possibility that this late awareness might have meant that he
would have little time to prepare in advance for the semester, and that at best he might
only adequately prepare a few lessons in advance of delivery, then it is not unreasonable
to assume that a week or two might pass before he fully appreciated the of the
teaching assignment.
I am astonished that the Majority. based on the evidence of and
none of could testify with any certainty exactly when they processed the
SW, can assert that it came to a “pretty solid conclusion about the time range of the
arrival in the union
The Majority also state that:
the evidence we that went
into the mail on or around the arriving in the union’s
mail on or around Tuesday. September On the
evidence we could not fmd that it got there later than
the Perhaps Reilly or took it from
Since there is no evidence on
the shortly it arrived.
What we find is that it was there
that, we make no finding.
for them to get it.
I cannot understand how the hlajority can possibly accept this as the pivotal piece
of evidence in the especially when none of the three witnesses called by
ever recall processing the in question.
As far as I am concerned, it is unconscionable that the College, based on such
flimsy evidence, and with the blessing of this Board, could possibly, on a continuing
basis. be violating the Collective Agreement between the parties because of what amounts
to a technicality.
If the mandatory time limits were then proving that that is, in fact,
should be based on far more conclusive evidence than that which was placed before this
Panel.
have rejected both of the Employer’s preliminary objections, and heard the
merits of the case.
Ed Seymour, Union Nominee