HomeMy WebLinkAboutDonaldson 87-01-01 CAAT GRIEVANCE AWARDS
h_ ~dnote 83553
Cover Page IN THE MATTER OF AN ARBITRATION
BETWEEN FANSHAWE COLLEGE
(The College)
AND ONTARIO PUBLIC SERVICE
EMPLOYEES UNION
(The Union)
AND--TN THE MATTER OF THE GRIEVANCES OF!~DONALDSON
& BUCEK~ #83553 ~
BOARD OF ARBITRATION H.D. BROWN, CHAIRMAN G. BEAULIEU, UNION NOMINEE
F. R. HODDLE, COLLEGE NOMINEE
APPEARANCES FOR
THE COLLEGE W.J. HAYTER, COUNSEL
AND OTHERS
APPEARANCES FOR
THE UNION R. ANAND, COUNSEL
AND OTHERS
HEARINGS IN THIS MATTER WERE HELD AT LONDON
ON MAY 1, 1984, MARCH 20 and MAY 7, 1985,
AND SEPTEMBER 15, 1986.
Decision AWARD
The grievance is dated April 6, 1983 and was filed by the
Union under the provisions of the collective agreement in effect
between the parties at all material times and is a claim that two
employees of the College, Mr. Bucek and Mrs. Donaldson were
improperly appointed as sessional employees and should have been
hired as full-time staff members and included in the bargaining
unit. It was the contention of the Union that there was no
justification for the replacement of Mr. Higgins and Mrs. Bulsza
who were full-time staff members with employees who are excluded
from the bargaining unit. The Union seeks recognition of the
grievors as full-time employees retroactively with compensation and
the deduction of union dues. On May 9, the College responded to
the grievance, denying a violation of the collective agreement in
classifying these two employees as sessional and denied the
grievance. It was thereafter referred to arbitration and came on
CAAT GRIEVANCE AWARDS
' '~ision (continued)
for hearing as set out above. There is no dispute between the
parties as to the composition of the Board, nor as to its
jurisdiction in this matter.
It is the Union's position in brief that sessional
employees cannot be used by the College to occupy complement
positions formerly occupied by bargaining unit members and by doing
so, there was a breach of Article 4.05 and Appendix #3 which are as
· ' follows;
4.05 The parties agree that no college shall circumvent the
provision of this Article by arranging for unreasonable teaching
loads on the part of persons who are excluded from or not included
in the academic bargaining unit.
Appendix III
SESSIONAL EMPLOYEES
l(a) A sessional employee is defined as a full-time
employee appointed on a sessional basis for up to twelve (12)
full months of continuous or non-continuous accumulated
employment in a twenty-four (24) calendar month period. Such
sessional employee may be released upon two (2) weeks' written
notice and shall resign by giving two (2) weeks' written notice.
(b) In determining the employment and calendar periods
under paragraph (a) above, only the period after January 1, 1976
shall be considered and no prior employment or calendar period
shall be taken into account. Also, an employee's continuous
service
acquired in accordance with the provisions of the previous
Agreement, dated the 17th day of September 1975, as at August
31, 1976, for the period back to January 1, 1976, shall count as
continuous employment or months of non-continuous accumulated
employment for the purpose of such paragraph.
(c) If a sessional employee is continued in employment for
more than the period set out in paragraph (a) above, he shall be
considered as having completed the first year of his two (2) year
probationary period and thereafter covered by the other
provisions
of the Agreement. The balance of such an employee's
probationary period shall be twelve (12) full months of
continuous
or non-continuous accumulated employment during the
immediately following twenty-four (24) calendar month period.
2. The College will give preference to the designation of
full-time positions as regular continuing teaching positions
rather than sessional teaching positions subject to such
operational requirements as the quality of the programs,
enrolment
CAAT GRIEVANCE AWARDS
F 'ision (continued)
patterns and expectations, attainment of program objectives,
the need for special qualifications and the market acceptability
of the programs to employers, students, and the community,
The College will not abuse the usage of sessional
appointments
by combining sessional with partial-load service and
thereby maintaining an employment relationship with the College
in order to circumvent the completion of the minimum
twelve (12) months sessional employment in a twenty-four (24)
month period.
A person assigned to replace a full-time regular employee
for up to fourteen (14) working days for unplanned absences in
any month shall not have such period(s) considered as
sessional employment for the purpose of the computation of the
(12) months sessional employment. During such periods such a
person shall be paid as if partial-load and within the range of
partial-load hourly rates as set out in Appendix 11 hereof.
Other matters concerning the use of sessional appointments
may be referred to the E.E.R.C. which shall deal with
these matters as priority items.
Mrs. Donaldson was hired to replace Mrs. Bulsza a nursing
teacher who resigned and Mr. Bucek was hired to replace Mr. Higgins
in the Electronics Division who had deceased. Both Donaldson and
Bucek were hired as sessional employees, rather than full-time
employees which the Union asserts should have occurred to fill
full-time positions. The Union further asserted that the College
was estopped from denying the status of having a full-time teacher
filling an ongoing full-time complement position through statements
made during negotiations of the previous two collective agreements
and at Union/Management Committee meetings. The Union asserts that
the hiring by the College of sessional employees to replace
full-time employees has been an ongoing concern, not as to the
propriety of the appointments, but as the method of filling
complement positions. In its position the Union had been assured
through the Ministry representatives that such appointments were
improper and the Union relied on those assurances in negotiations.
At the outset of this matter the Employer raised a
preliminary objection that this was not a proper union grievance
under Article 11.10 of the collective agreement, as the employee
could grieve the issue and the remedy, if any, breach of Article
4.05 would not have any significance. It was further submitted that
reference to Article 4 and Appendix 3 was an expansion of the scope
of the grievance from the document filed as the grievance. It was
also its position that evidence of estoppel was an attempt to
create a new position in the collective agreement by alternate
means, in order to modify the express words of Appendix 3 and
objected to that evidence. A concern was also raised as to the
particulars required.
CAAT GRIEVANCE AWARDS
r 'ision (continued)
The Board ruled orally at the hearing that the
preliminary objections raised by the College were dismissed and
found that reference to Appendix 3 could be made in this case, as
well as it would receive the evidence concerning the Union's
allegation of estoppel. The Board further found that the grievance
was appropriate for the Union to bring and was not in violation of
Article 11.01 of the collective agreement. As counsel for the
College was taken by surprise with regard to the evidence
concerning the estoppel sought to be led by the Union, the Board
adjourned the hearing and gave directions to the parties to
exchange particulars prior to the next hearing. Difficulties arose
with regard to the exchanging of particulars and the Board ruled at
the next hearing that it would not disregard the evidence and
submissions as to the allegation of estoppel raised by the Union,
but would not deal with that aspect of the case at that hearing,
but would defer the issue until the next hearing date. The Board
then proceeded to receive the evidence of the Union.
Mr. Grunwell was the President of the Local Union when he
filed the grievance dated April 6, 1983 and had held this position
and other positions with the Local Union since certification. This
grievance was filed concerning the status of Mrs. Donaldson in the
Nursing Department and Mr. Bucek who taught in the Electronics
Division, following receipt of a list supplied by the College to
the Union pursuant to article 8.15 of the agreement, setting out
the names and classifications of persons recalled by employment and
to notify the Union of all appointments including sessional. That
list indicates that Mr. Bucek was hired as a sessional employee to
replace Mr. Higgins who had been a bargaining unit member in the
Electronics Department and a full-time teaching master, but who
died in the previous October. The list dated January 31, 1984
which he received, indicated both Donaldson and Bucek were hired as
full-time faculty. He said that he was aware of the enrollment
patterns at the College and that in the 1982 - 1983 academic year
there was a steady increase in enrollment in post-secondary areas
of the College and was not aware of any decrease in the electronics
area. Mr. Grunwell produced notations of extra work assignments in
the voluntary agreement for teaching hours in excess of the maxima
required under Article 4.01 for members in the Electronics Division
from March 1982 through December 1983 and a voluntary agreement
with Mr. Bucek dated June 28, 1983 which was the same form used for
the full-time faculty members, but while Mr. Bucek was classified
as a sessional employee and outside the bargaining unit at that
time.
Mr. Grunwell also received a copy of the time table for
the teaching hours of Mrs. Donaldson who worked in the Nursing
Division at the Woodstock Campus for the winter semester in 1983,
on which it is noted that she was a "sessional for Bulsza" who had
been employed for about six years but was on maternity leave until
December and had applied for an extension but then resigned at that
time. The student enrollment in the nursing area was reasonably
CAAT GRIEVANCE AWARDS
~sion (continued)
stable. He said the Union was not notified by the College that
fewer full-time positions were necessary to trigger a layoff of
full-time staff under Article 8. He acknowledged however that
there was concern in the College about budget restrictions and of
layoffs, but while he was President there was nothing specific and
those layoffs which had been announced were rescinded because the
financial crisis was not as serious as had been believed, so that
he was not aware of any particular crisis in 1982 - 1983. When he
received the teaching schedule for Mrs. Donaldson he complained to
the College that as Mrs. Bulsza had resigned from a regular
full-time position and that the Union had received assurances from
the College that it would not replace full-time staff with
sessionals, that this was improper. Dean White agreed to respond to
him after that complaint, but did not do so, but Mr. Grunwell said
that the Dean had agreed with him that the College had given that
understanding and that he had a legitimate concern. A sessional
employee is excluded from the bargaining unit and is paid in amount
similar to what a full-time staff member would be paid but without
fringe benefits, so that the cost of such an employee to the
College is less than a full-time staff member.
Mr. Grunwell's position was that these two positions
should have been filled by full-time employees and not by
sessionals who can be used to cover situation where a staff member
would be away from teaching for one or more terms on a sabbatical
leave, on union business, special course or in circumstances where
there is a specific terms for the use of that individual.
Mr. Grunwell agreed that upon the death of Mr. Higgins
there was an immediate adjustment required with the other staff
members in the Electronics Division until the College could obtain
a replacement and a number of voluntary agreements resulted from
that situation and other such agreements resulted for replacement
of employees on sick leave or from splitting the courses which is
the fastest way to respond to an unanticipated problem. He agreed
that the College had declared a financial exigency pursuant to the
collective agreement in February 1982, but before that there had
been concerns of the budget restrictions for the 1982 - 1983
academic year. Mr. Bucek was hired in January 1983 to April 30,
1983 to replace Mr. Higgins and continued to work after that date
as the courses in the Electronics Division continued and
subsequently became a full-time employee as of January 4, 1984 when
12 extra programs were added which required additional staff.
However, he had been teaching full-time for a year by that time as
a result of the vacancy through the death of Mr. Higgins. Mr.
Grunwell said that it had been stated in meetings of the College
Committee, that while there would be no guarantee that a full-time
employee would remain as such for all time, as long as the position
existed it would be filled by a full-time staff member not a
sessional employee where the work exists for the courses for the
students.
The College submitted through this witness a memorandum
CAAT GRIEVANCE AWARDS
F ision (continued)
of understanding between the parties dated January 24, 1985,
concerning the use of sessional appointments which the Board
received subject to the objections of its relevancy in this
action. The Board finds that while the parties have come to an
agreement on this subject, which would affect the conditions of
employment following the date of that agreement, it does not bear
on the issue raised by the grievance before this Board upon which
the Union is entitled to a decision from the Board. We therefore
find that this agreement is not relevant to the issue an the
grievance to be determined by this Board and is not admissible.
Mr. Martin is a Teaching Master at Sheridan College and
had been President of Local 244 for 14 years. He has been a member
of the Union's bargaining team since 1971, the Committee of which
he was Chairman in 1981, which resulted in the collective agreement
from September 1, 1981 to August 31, 1982. He had equally been
involved in the immediately preceding collective agreement
negotiations.
In the 1982 collective agreement an
Employee/Employer Relations Committee (E.E.R.C.) was set up of
which he was Co-chairman with Mr. Pesce for the College. He said
that prior to 1981 there had been some difficulties in the use of
sessionals and the Union's position had always been that they could
not be used to undercut the bargaining unit so that full-time jobs
should not be lost due to the unwarranted use of sessional
employees, which problem arose at various colleges in the system.
Specific circumstances had been discussed by the parties where a
sessional employee could be used to replace a full-time member on
sabbatical or in cases of a major illness or a Maternity leave,
where the full-time employee was returning. Where a new program
was started, the Employer took the position that this was cause to
use a sessional employee, but the Union's position was that a
full-time faculty member should be hired and if the program did not
continue, that employee would be terminated pursuant to the
provisions of the collective agreement. There is no question that
a regular ongoing full-time position constitutes a full-time
faculty position. In 1978 there had been a difficulty on this
issue at Algonquin College which was brought to the attention of
the negotiating committees. A letter was sent by Mr. Lynch, Manager
of the Student Relations to Mr. Donely, Vice President of
Administration, indicating that in the position of the Ministry of
Colleges, there should be no abuse of the sessional situation, as
in that letter by Mr. Lynch for the Ministry said;
"It would be very much against
the intent of the contract to
use either sessional or
part-time employees to fill
continuing full-time positions
and such action would not be
supportable."
This was referred to in their negotiations at that time. In the
1981 negotiations the sessional issue was put on the table by the
union committee and its concern was that the use of sessionals
CAAT GRIEVANCE AWARDS
F ision (continued)
might be abused by utilizing them to fill ongoing full-time
positions and that appointments to sessionals should not be rolled
over at the end to partial-load and then returned to sessional, so
that they could not obtain a full-time status. At a meeting at the
Sutton Place Hotel this subject was dealt with to the point of
drafting language to meet the Union's concern on this issue and he
said there was a reiteration by Mr. Pesce of the Employer's promise
that it would not be their intent to abuse the sessional situation,
where a continuing position existed. There was an agreement that
there were instances where sessional employees could legitimately
be used, but they had a difference of opinion on the status for a
new program and the use of sessionals. If the circumstances did
not fall within the categories where sessionals could be used, then
it would be a full-time job and where a full-time employee left an
ongoing position, it would be filled by a full-time appointment.
As a result of those conversations at that time, with the assurance
of Mr. Pesce and the obligation of the Employer, the Union was
satisfied and the issue was left on the basis that it believed the
issue had been concluded appropriately. The EERC was assigned to
study the use of non full-time employees which included the
utilization of sessionals and partial-load employees and became
aware of a major problem in that area at Algonquin College in the
summer of 1982. After discussions, the situation was resolved to
the satisfaction of the Union.
Mr. Pesce is the Director of Human Resources at Ryerson
College, which position he had held since March 1985. He had been
involved in negotiations as a representative of the Ministry with
regard to the 1981-1982 collective agreement. He recalled that the
issue of the use of sessional employees arose during those
negotiations and that the Union's concern was generally that of
abuse. He said they discussed several examples, the most
significant of which was rolling over a sessional appointment
preventing the employee from becoming full-time. There was no
systematic data at that time about the issue which they wanted to
put before the EERC. At that level they discussed mostly work load
and the need for further data on the usage of non full-time
faculty, including the use of sessionals. The Employer's position
was no different at the Committee level than during negotiations.
He agreed that they had discussed the language concerning the use
of sessionals and there was no disagreement that the use of
sessionals was not to be abused and the language was attempted to
be put together to meet the operational requirements and to spell
out the legitimate uses of sessional employees. He said that he
had seen the letter from Mr. Lynch many times, but said they never
repudiated what was set out in the letter and it was put forward as
the Employer's position because of Appendix 3.
Mr. Rundle is the Director of Student Learning Resources,
before which he was the Director of Planning for 10 years, in which
position he held when these issues came up at the College. He was
involved in forecasting the College's financial position for a
number of years and in assisting the College in providing support
CAAT GRIEVANCE AWARDS
F ~ision (continued)
for resource allocation. The budget system begins in late spring
of one year, one and one half years ahead of the next fiscal year.
A financial exigency was declared in 1982 for the 1982 - 1983
academic year under the terms of the collective agreement. The
anticipated layoffs at the time of that declaration exceeded the
actual requirements, but eight or nine staff were laid off. As a
result of that declaration, Review Committees were set up and
whenever a full-time position was vacated for any reason, the
Hiring Review Committee dealt with the requirements of that
position, which recommendations would be made to the Planning
Committee comprised of the College Vice Presidents, who would
determine if and how the position would be filled. Those
recommendations were submitted to the faculty and support staff
unions for their input prior to a decision being made. Because of
the exigency in 1982, the planning projection was for a difficult
year in 1983 - 1984 because of the corrective measures needed,
unless the government grants increased. The projection showed a
deficit position in the 1983 - 84 academic year. The Colleges
receive guidelines from the Council of Regents for inflation and
grant increases which was used for planning purposes. The deficit
for that year would also use up the reserve position which the
Board of Governors maintains at 25% of revenue however to maintain
that reserve position would have been a million dollar problem in
that year.
In October 1982, the Chairman of the Electronics
Department made a recommendation to fill the vacant position with a
full-time staff or as an alternative, with a full-time sessional
and a copy of that recommendation was sent to the Union President
and to the Planning Committee. They were made aware that this
department could not absorb a reduction of teaching requirements in
the work load or in the class size and had avoided a layoff in the
division but there was no further scope because of the budget that
would not have led to the layoff of a faculty member. The
alternate recommendation was for a sessional employee with the
essential experience in the high technology area to replace an
unexpected vacancy through the death of Mr. Higgins. That was
approved by the Planning Committee which indicated in the minutes
that there had been no feedback from the Union. The Hiring Review
Committee on December 15, 1982, recommended to fill the position
with a full-time sessional and as an alternative to a partial-load
employee and these documents were sent to the Unions. When this
vacancy arose in view of the College's intent to avoid layoffs of
full-time staff, the full-time sessional appointment was made. He
said in the Nursing Department, the lack of work was a factor in
hiring a sessional employee at that time, as there was an objective
to reduce the number of teachers in that area. There are
supplementary grants from the Government received during an
academic year, but not operating funds for general use. He said it
looked to management as these two positions would disappear in a
few months, it was not necessary to bring in full-time employees
and it would be unfair to hold out a full-time job for someone else
to leave their present position when a layoff was risked in a few
CAAT GRIEVANCE AWARDS
~ ,ision (continued)
months in that position.
Mr. Prokos has been the Chairman of the Electronics
Division of the College for over 14 years. He said that when Mr.
Higgins died he arranged short-term voluntary agreements to have
his classes taught and requisitioned a replacement to fill by way
of a full-time staff member or alternatively as a full-time
sessional. He was looking for a graduate electrical engineer or an
electronics technologist with five years of industrial and teaching
experience, who would be up to date in the technology to proceed
with this position and he expected it would be difficult to obtain
such a person as it is hard to entice qualified people from
industry to teach. In that fall the voluntary overtime agreements
were used to avoid team teaching and splitting courses and as well
to filling in for illness of other teachers. There was an increase
of enrollment that year which was handled with the same resources.
Mr. Bucek was appointed as a full-time sessional position for the
period January 1, 1983 to April 30, 1983, covering the winter
semester as set out in the letter to him from the President dated
December 17, 1982. As at April 30th they had a special industrial
training contract and required teachers for the summer and
therefore made another sessional appointment of Mr. Bucek from May
10 to July 15 as a sessional employee after which his employment
would be terminated. Mr. Grunwell requested release for union
business which required replacement for about 15 hours and
additional part-time work. Mr. Bucek was then given a full-time
sessional position from August 15 to December 21, 1983 covering the
fall term. Had there not been a request for Mr. Grunwell to leave
at that time, there would not have been work available for Mr.
Bucek. Subsequently an on-going program commenced in January 1984
to which Mr. Bucek was given employment as a sessional from
December 21, 1983 to April 30, 1984, but as of January 1, as he had
been employed a total of 12 months, he would be considered a
full-time probationary employee, after which he would be covered by
the collective agreement. Mr. Prokos said that when he hired Mr.
Bucek he told him that it was a position for four months only and
did not hold out any career opportunity at that time. It was only
after two 64 week programs from Canada Manpower came to the College
that two positions in the division were advertised, one of which
Mr. Bucek applied and again. Mr. Prokos told him that the
position may not exist after May 1984, but Mr. Bucek accepted that
job. There was a slight increase of student enrollment in 1983 -
1984.
In the 1982 - 83 period he identified a number of
teachers who had been employed as partial-load or part-time
sessional in his division, the details of which are not necessary
to record. Mr. Higgins' courses are still being taught by teachers
who were shifted to cover them and the class loads, so that none of
the sections that Mr. Higgins had taught did not get taught and he
used the partial-load and sessionals who had particular expertise
in these areas for this purpose. He said in the fall of 1982 it
would have taken some time to find a suitable replacement for Mr.
CAAT GRIEVANCE AWARDS
F ~ision (continued)
Higgins and because of the budget requirements, it was possible
they would have to layoff a person employed for that position who
they had just attracted from another job which would have created
ill-will. Therefore he felt the College could not offer a career
opportunity at that time to anyone.
Mrs. McWilliam was in 1982 - 1983 the Chairman of three
nursing campuses and acting Dean. In the summer of 1982 Mrs.
Bulsza was on a maternity leave and was scheduled to return to the
Woodstock Campus after the extension of her maternity leave to
February 28, 1983. Mrs. Donaldson was given a full-time sessional
position in the Nursing Education Division for the period September
1, 1982 to February 28, 1983 to cover the extended leave of Mrs.
Bulsza. On December 9, 1982 Mrs. Bulsza resigned her employment
effective February 28, 1983. There was then a request to the Hiring
Review Committee to fill the vacant complement position by a
sessional. Because of the financial situation, she was then
planning for the next academic year when she anticipated a
reduction in the staffing complement in the Nursing Division, when
the budget was complied for nursing and there would be a reduction
of one full-time employee in Woodstock and in St. Thomas, a total
of two in the division. Mrs. Donaldson was appointed to a
full-time sessional position to March 31, 1983 to cover the rest of
the fiscal year. There was then a extension of her sessional
appointment to July 29, 1983. The division had used extra
sessionals to cover the pre-graduate experience which is a clinical
experience for students in the hospitals. Mrs. Donaldson was
offered a partial-load position in the Nursing Division in the
Woodstock Campus for the period of September 1, 1983 through
September 30, 1983 to cover absences through vacations and in a
period when their staffing needs are lower. Mrs. Donaldson was
offered a limited term appointment to a probationary position in
the Nursing Education Division for the periods of October 1, 1983
through to June 30, 1984. She was advised that her employment
would cease at the end of that period. She was to replace Ms.
Smith who was on her leave of absence without pay for a year for
education purposes, but for her absence, Mrs. Donaldson would not
have had employment unless other vacancies arose.
It is the submission for the Union that while it did not
take issue with the College's decision to hire Mrs. Donaldson as a
sessional employee to cover for the maternity leave and extension
of that leave of Mrs. Bulsza, that when Mrs. Bulsza resigned, it
was not open for the College to erode the bargaining unit by
reducing the number of full-time teaching staff in the unit when
there was no evidence that the work decreased. It was submitted
that the evidence indicated that there was increasing enrollment in
both nursing and electronics and that there was no notification of
any layoffs in either division and no evidence that any of the
courses previously taught by Bulsza or Higgins were eliminated at
any of the relevant times.
The Union submitted that the declaration of financial
CAAT GRIEVANCE AWARDS
~ ~ision (continued)
exigency did not permit the College to hire sessional employees on
the basis of lower costs involved in assessing by the Committee or
otherwise whether the bargaining unit can be eroded, otherwise all
benefits under the collective agreement, including job security
would be in doubt after such a declaration is made by the College.
. ~ The Union relies on Section 2 of Appendix 3 where preference must
be given by the College to full-time positions and the operational
departments do not include budgetary requirements, because those
refer to the program and there is no evidence that there was any
concern of the quality of the programs and the evidence indicated
that the enrollment was up with no problem on the attainment of
program objectives. That section does not include the cost
projections of the College. It was submitted that the government
which funds the Colleges, cannot decrease the effect of this
section by reducing grants and therefore the financial exigency
declared by the College is not relevant and is something which the
Union cannot meet in terms of the deficit projected by the
College. Those determinations are within management's discretion
and the control of the government, as a funding agency, but it
cannot intend that the College through its own priorities can
reduce the assurance of full-time positions, otherwise this section
would be meaningless as it would be used to effectively curtail
the full-time complement. In circumstances where there has been a
full-time continuing position ended because of cost considerations
and where there is no reduction in work, then the College is
required to apply Appendix 3 (2).
The Union further submitted that the College was estopped
from the position asserted by the Union in that during
negotiations, repeated assurances were given in discussions
concerning Appendix 3 (2) by the management negotiators who
confirmed that hiring sessional employees to replace full-time
teachers would not take place. The sporadic violations within
various colleges, such as at Algonquin College, were resolved
individually. While there was contention between the parties as
to the use of sessionals in the start-up of a new program, that was
not the factual situation concerning the replacement of Higgins and
Bulsza. The letter from the Ministry which indicated the
management's position was never repudiated and on the basis of the
assurances given during and at the EERC, the Union was satisfied
and did not seek a further language change for the collective
agreement. Mr. Grunwell testified that he had received assurances
from this College that it would be improper to replace regular
full-time teaching masters with sessional appointments. Therefore
the College cannot assert a contrary interpretation of Appendix 3
(2).
The submission for the College is that at the time when
Mr. Higgins and Mrs. Bulsza were replaced by the College there was
a financial exigency in effect which meant it was required to be
concerned of its budget and that fewer people would be needed at
the College. The Union was given notice of the adverse impact of
this financial situation. There was a contemplation of a reduction
CAAT GRIEVANCE AWARDS
r ~ision (continued)
of a staff members at the Woodstock Campus in the Nursing
Department where a sessional was used until the budget was known
and when that occurred there was one less nurse in that
department. Mr. Higgins was replaced with a sessional Because of
the budget restrictions which made staffing uncertain and it would
have taken sometime to replace a full-time position in that
division, so that the sessional was a stop-gap measure to give the
College that time, but that position was not replaced and Mr. Bucek
stayed because of unforeseeable events, including Mr. Grunwell's
release for union duties. The evidence concerning estoppel showed
that the parties were concerned with the use of sessionals as they
considered it and both recognized their use for legitimate
purposes, but there was no consensus on every fact situation.
There is no difference in the evidence of the discussions at EERC
end at negotiations. The College decided not to replace those
position which negated any need for a future layoff and in its
submission the evidence indicates that these were not on-going
positions in that Donaldson replaced Smith, not Bulsza and Bucek
did not replace Higgins but was used for the on-going work in the
division because of other factors. It was argued that Appendix 3
(2) is not incorporated by reference into the body of the
collective agreement and is not subject to Article 7.02 which is,
"The Colleges agree that these functions will be exercised in a
manner consistent with the provisions of this agreement."
Alternatively to uphold the Union's position would mean
that there would not be any circumstances which the College could
layoff employees under Article 8, which is incorrect in that
Section 2 of Appendix 3 applies only where other things are equal
and does not affect the right of the College to reduce its
workforce due to monetary constrains. The College argued that the
positions involved in this matter were not continuing on-going at
the time this decision was made by it.
Reference was made to Re: Fanshawe College and O.P.S.E.U.
(unreported - Brent, May 1983); Re: Loyalist College and O.P.S.E.U.
(unreported - O'Shea, March 1983); Re: Algonquin College and
O.P.S.E.U. (unreported - Kates, October 1984). It was further
submitted that Appendix 3 is a preference and not a right and
therefore the declaration of financial exigency is relevant for the
purposes of the College at the time the decision was made as to the
complement. These individuals were replaced on an interim basis
and their positions disappeared which was consistent with the
College's consideration of redundancy. As Higgins and Bucek were
nod replaced, the Board cannot compel the College to increase the
numbers of employees in the bargaining unit, which in the result
was reduced by two which the Union seeks to restore in this
action. It was the further submission of the College that there
was disagreement during negotiations as to what would apply and
took their chances on the interpretation of the provision which
they put into the collective agreement. The assurances given there
were no different than the provisions in the agreement and was
never superceded according to Mr. Pesce because the agreement dealt
CAAT GRIEVANCE AWARDS
? ~ision (continued)
with it. There is no provision existing in the collective
agreement on which estoppel could arise. Reference in that regard
was made to Re: Ellenzweig Bakery Limited and R.W.D.S.U., Local
461, 14 L.A.C. (3d) 336 (McLaren): Re: National Grocers and United
Food and Commercial Workers Local 1000A 10 L.A.C. (3d) 300
(Little). A party cannot, through the application of estoppel,
rectify the collective agreement by requiring a new provision. It
was therefore argued that as this issue is not dealt with in the
· .~ collective agreement, estoppel could not arise. Re: Sudbury
District Roman Catholic Separate School Board and Ontario English
Catholic Teachers' Association, 15 L.A.C. (3d) 284 (Adams). The
College acted in good faith in making sessional appointments in the
circumstances of the financial constraints at the time the College
made its decision.
Firstly the Board finds that Appendix 3 is part of the
agreement between these parties and is relevant to the Board's
consideration of the issue raised in the grievance. We have so
concluded because all of the Appendices are included in the index
to the collective agreement; that Article 1.01 refers to sessional
appointments, the definition of which is included in Appendix 3 and
thereby connected to the meaning of that Article. The terms of
Article 4.05 by inference with sessional employees who are excluded
from the academic bargaining unit and requires consideration
therefore of Appendix 3 in dealing with Article 4 of the collective
agreement. As part of the agreement the College is required to
consider Article 7.02 in the application of provisions in the
collective agreement which includes we find, Appendix 3 (2).
Consideration of the above cited awards in the college system
support this finding.
In the Nursing Division, there is no dispute as to the
appointment of Mrs. Donaldson as a sessional employee for the
period of the absence of Mrs. Bulsza for maternity leave as
extended to February 28, 1983. Had she returned to work at that
time, it is understood that the sessional appointment for that
period would not have been criticized by the Union, as this is one
of the agreed purposes for the use of the term sessional
appointments. The issue in this case however arose upon the
resignation of Mrs. Bulsza on December 9, 1982, at which time the
Union contends there was a vacant complement position which should
have been filled by the College by a full-time employee, a member
of the bargaining unit. It is the evidence of Mrs. McWilliams
that because of the budget constraints of which she was aware, she
anticipated a reduction in her division of two full-time employees
at the Woodstock and St. Thomas campuses and on that basis Mrs.
Donaldson was continued with sessional appointments through to
March 31, 1983, and extended to cover the lengthened pre-graduate
experience and vacation relief to September 30th. She became a
probationary employee as of October 1st when she received a limited
term appointment. Apart from the vacation relief and pre-graduate
experience time, the evidence indicates to us that the work
previously performed by Mrs. Bulsza continued. The extra time
CAAT GRIEVANCE AWARDS
~ ~ision (continued)
involved for the pre-graduate experience and for relief was usually
covered by sessionals and is not part of the regular teaching
requirements of the full-time position. In the manner of the
coverage for the work required, there appeared to be a reduction of
two full-time employees, but at no time, according to the evidence,
was there notice of layoff or of a reduction in the number of
full-time employees under Articles 8.04 or 8.05 of the collective
agreement. If a layoff was required, the provisions for that action
are contained in the collective agreement and could be applied by
the College, but for the filling of the vacancy which existed as at
the date of Mrs. Bulsza's resignation in a full-time complement
position, we find Appendix 3 (2) clearly directs the College to act
by way of preference for a full-time replacement.
To prefer something, is to put it ahead of something else
or to take precedence over something else, such as a prior claim.
The use of the word "preference" must be given meaning in relation
to the designation of sessional teaching positions which under this
Appendix becomes secondary to the requirement to give preference to
a full-time position, subject to those considerations specifically
set out in that clause. The operational requirements referred to
are defined and on the evidence before us, none of those
qualifications of the preference would apply to either the Nursing
or Electronics Division. It must be noted that the qualifications
of the preference do not include budget restraints or any other
financial consideration of the College when these positions became
vacant.
It is not that the College or Mrs. McWilliam's attempted
to improperly circumvent the collective agreement, as in our
opinion the evidence indicates that the decision was made in good
faith by the administration of the College in difficult
circumstances at that time, but it is exactly those kinds of
circumstances where employees' rights arising under a collective
agreement become particularly significant in the same context as
the significance of the financial predicament faced by the
College. Therefore to determine the interests in such
circumstances, it is necessary to apply the strict terms of the
collective agreement. Although such application might create an
aspect of unfairness in hiring new employees for a full-time
position in uncertain future employment circumstances, in our view
that is what the parties have put into their collective agreement
and by doing so and giving a preference to full-time positions, the
secondary method of filling full-time vacancies by sessional
employees can be used with the qualifications of Appendix 3 (2) as
noted above. None of those qualifications apply with regard to the
filling of the vacancy caused by the resignation of Mrs. Bulsza in
December 1982. We find at that time there was a full-time position
in the bargaining unit which was on-going and required the College
to give preference to the filling of such vacancy by another
full-time appointment. The considerations of a future layoff of
such an individual who would be hired on that basis, while being a
reasonable concern of attracting someone to fill the position, is
CAAT GRIEVANCE AWARDS
F ~ision (continued)
not the controlling factor, nor is the budget restraint or the
declaration of a financial exigency by the College. As a result of
those concerns the College might well have reduced the number of
its full-time employees or laid off full-time employees, but that
must follow another form under the collective agreement as set out
in Article 8 which was not followed in the present circumstances.
In the Electronics Division it becomes even clearer than
in the Nursing Division, that upon the death of Mr. Higgins, Mr.
Bucek was appointed to cover the work which was continuing to be
required, which would otherwise have been handled by Mr. Higgins.
The College covered that work through a number of sessional and
partial-load appointments, including Mr. Bucek and for the same
concerns as expressed in the Nursing Division because of the
financial constraint, chose not to fill the position with a
full-time employee who would be difficult to find with the
technical requirements of the job. However that may be, the
College did have a vacant full-time position upon the death of Mr.
Higgins, whose work was required to be continued to meet the course
requirements in a division where at least the enrollment would be
static, if not increasing under the forecast. This differs in our
opinion from the finding in the Loyalist College case concerning
enrollment. In passing, we also note in that case that the Board
specifically dealt with Appendix 3 as part of the agreement. We
differed however with that award where the Board made a
determination that budgetary requirements justified the College in
not hiring a regular full-time teaching master, but making a
sessional appointment and we note that Board did not deal with
Section 2 of the Appendix in that regard.
Where there has been an extraordinary financial exigency
determined, then the provisions of Article 9 must be applied in
layoff of ten or more full-time regular employees. That was not
applied and does not arise in this action and in any event does not
determine how a full-time on-going teaching position is to be
filled. It appears that while it is not the College's intent to
erode the numbers of the bargaining unit employees by appointments
outside of the bargaining unit for continuing full-time positions,
the College at the same time maintained that its considerations in
the management of its operations must first apply, so that in the
budgetary restraint period, all new appointments to on-going
positions become subject to that consideration through, in this
case, its Hiring Review Committee. That practical objective
however, is inconsistent with the terms of the collective agreement
which the parties must apply and cannot take precedence over a
preference which by agreement of the parties and not made subject
to budgetary restrictions. The teaching load which had been
required in this position continued and there was an incoming
student enrollment which had to be met and which normally would
have been covered by the teaching assignments to Mr. Higgins. There
was also evidence of an increasing student enrollment in this
division.
CAAT GRIEVANCE AWARDS
Fr 'ision (continued)
We find in those circumstances that the College was
required to give preference, no matter of the difficulty in
replacing Mr. Higgins with a qualified individual, to a full-time
appointment pursuant to Appendix 3 (2) of the collective
agreement. The question of cost in that procedure is not dealt
with by the parties in the agreement and therefore is not relevant
or determinative of this issue. As page 9 of the Algonquin College
award (supra) the Board said;
"As was pointed out at the
hearing we view Appendix 3 as a
job security provision designed
to enable sessional employees,
upon the completion of 12
months service, to gain access
to regular full-time status as
probationary employees in
accordance with paragraph 2 of
Appendix 3. Its objective is
to give preference to such
sessional employees as regular
continuing teaching positions
subject to the various
operational requirements of the
College as described by the
paragraph. The obvious design
is to encourage the College,
save where the operational
requirements dictate to the
contrary, to designate
sessional employees as
full-time members of the
College teaching staff so that
such employee need not face the
continual uncertainty with
respect to their employment
status at the end of each
college semester..."
We would go farther than the statement in that encourages the
College in the designation of full-time positions as we find the
College is required under Appendix 3 (2) to do so, subject to the
operational requirements as set out in that section. The substance
of the College case is that both regular full-time
positions
involved in the Electronics and Nursing Divisions were ended
because of cost considerations of the College, but not in
circumstances where there was a reduction in work or requirements
for teaching services on a regular ongoing basis, such as would
have been expected of the two previous full-time employees who were
replaced by sessional appointments. In our opinion the collective
agreement does not provide the College with that right as it must
act in the application of its management's functions consistently
with the other terms of the collective agreement and in this case
CAAT GRIEVANCE AWARDS
D~cision (continued)
it had to apply Appendix 3 within the conditions for the preference
set out in Section 2 thereof. The College however did not do that
and sought to defend its appointments on a basis which cannot be
sustained in the application of Appendix 3.
In our view therefore, the terms of the collective
agreement provide the answer to the issue raised in this grievance
and it is not necessary for this Board to deal in length with the
evidence and submissions of the parties on their estoppel
positions. It would be the Board's position in the alternative
however that the Union did establish a proper basis for the
application of the principle of estoppel in that there were
specific and clear representations made to the Union during
negotiations of the intent of the Colleges not to use sessional or
part-time employees to fill continuing full-time positions and on
that basis, the Union did not proceed to negotiate with specific
language to incorporate that condition in the agreement, but relied
on the expression of intent and subsequently on the inclusion of
Appendix 3, which sets forth the intent of the parties on this
issue. The evidence seemed to indicate that there was substantial
agreement as to the use of sessional appointments to replace
full-time employees for periods of vacation, sickness, leaves of
absence and such like, but there was an ongoing uncertainty between
the parties on this application in starting up of new programs
(which is not a consideration in the present case) but not in the
filling of a continuing full-time complement position. The
management's position was succinctly set out in the letter to Mr.
Donnelly and which was never repudiated and which in our
consideration of the evidence set forth the understanding on this
between the parties. In 1981, Appendix 3 (2) was included in the
collective agreement which does set out the parties' intent and is
a specific provision of an agreement from which an estoppel can
arise. In our view therefore the College would be estopped from
asserting a contrary interpretation of Appendix 3 (2), than that
asserted by the Union.
Having regard to all of the evidence and the submissions
of the parties, the Board finds that the Union did establish that
the College was in violation of the collective agreement as alleged
in the appointment of Mrs. Donaldson and Mr. Bucek as sessional
employees. As to the issue of remedy following the breach of the
agreement as found in this case, the Board remits that issue to the
parties, but failing settlement between them, the Board retains
jurisdiction to determine that issue and in the application of its
award.
DATED AT OAKVILLE THIS DAY OF JANUARY, 1987
"H.D. BROWN"
HOWARD D. BROWN, CHAIRMAN
"G. BEAULIEU"
G. BEAULIEU, UNION NOMINEE
"F.R. HODDLE" Concurs
F.R. HODDLE, COLLEGE NOMINEE