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HomeMy WebLinkAboutUnion 94-12-22 IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE (the "College") ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") GRIEVANCE REGARDING THE INTERPRETATION OF THE EXCLUSION OF PART-TIME COUNSELLORS FROM THE BARGAINING UNIT BOARD OF Piih ARBITRATION: Pamela C. er - Chair Gary Majesliy - Union Nominee George Metcalfe - Employer Nominee APPEARING FOR THE COLLEGE: Lynn Thomson - Counsel APPEARING FOR THE UNION: George Richards - Senior Grievance Officer Tom Tomassi - Chief Steward, Local 556 A hearing in this matter was held in Toronto on November 24, 1994. AWARD The Union's grievance concerns the question of whether Dr. J. Price who is employed by the College as a counsellor to work 3 days per week, 7 hours per day, falls inside or outside the academic staff bargaining unit which, on its face, excludes part-time employees. More precisely, the issue between the parties is whether Dr. Price is a part-time employee within the meaning of the description of the bargaining unit which was established by section 67 of the Colleges Collective Barl~aining Act: 67. The bargaining units set out in the Schedules are the units for collective bargaining purposes under this Act. The academic staff bargaining unit applicable to the counsellors is set out as follows in Schedule 1 of the Colleges Collective Bargaining Act: SCHEDULE 1 The academic staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers, counsellors or librarians but does not include, (i) chairs (ii) department heads, (iii) directors, (iv) persons above the rank of chair, department head or director, (v) other persons employed in a managerial or confidential capacity, (vi) teachers who teach for six hours or less per week. (vii) counsellors and librarians employed on a part-time basis, [emphasis added] - 2 - Although the support staff bargaining unit set out in Schedule 2 excludes part-time employees under what may be referred to as a traditional part-time description used by the Ontario Labour Relations Board, "persons regularly employed for not more than twenty-four hours a week," the exclusion of part-time employees in the academic staff bargaining unit is not defined by reference to hours worked. It is simply described by the use of the general phrase, "counsellors ... employed on a part-time basis." This Board is satisfied that in article 1.01 of the collective agreement, the parties have essentially adopted, as they must, the description of the academic staff bargaining unit set down in Schedule 1 of the Colleges Collective Bargaining Act. Reflecting the terms of the legislation, subsection (v) of article 1.01 stipulates that the bargaining unit does not include "(v) teachers, counsellors and librarians employed on a part-time or sessional basis." Note A to the description of the bargaining unit stipulates that "Part-time in this context shall include persons who teach six hours per week or less." The Board does not accept the submission of the Union that through Note A, the part-time exclusion is limited to only employees who teach six hours per week or less and thus does not encompass counsellors at all. Not only does the Union's interpretation fly in the face of the clear language of the Colleges Collective Barl~aininf Act, but also it is not supported by the clear language of Note A itself. - 3 - Moreover, the Board does not accept the alternative submission of the Union that the six hour standard set for the definition of part-time teachers for the purposes of their exclusion from the bargaining unit applies, as well, to counsellors, such that the definition of part-time counsellors should be understood as counsellors who are employed "six hours per week or less." The six hour standard set out in Note A to the bargaining unit description in article 1.01 of the collective agreement, is expressly tied to "persons who teach", and does not refer to counsellors. The Board is satisfied that the intention of Note A is to pick up the part-time standard expressly set for teachers in subsection (vi) of Schedule 1 in the Colleges Collective Barraininff Act and is not to create the same standard for the definition of part- time for counsellors. Accordingly, we conclude that neither the legislation nor the collective agreement establishes an express definition of or standard for identifying the part-time counsellors who are excluded from the bargaining unit. Both the legislation and the collective agreement simply and generally exclude counsellors "employed on a part-time basis". The Union asserts that there is no public policy reason for counsellors working three days a week to be excluded from the bargaining unit. Moreover, it is the position of the Union that a counsellor working three days a week shares a community of interests with the other persons in the unit and thus could properly be included therein. The Board accepts the submission of the College that general public policy regarding union representation and concepts of community of interest that may be used in the initial determination of a - 4 - bargaining unit are not relevant to the determination of the meaning of "part-time" in a bargaining unit exclusion that has already been set by legislation. Article 11.04 A of the agreement provides that "[t]he assigned hours of work for Librarians and Counsellors shall be 35 hours per week". The Union argues that this provision sets a maximum on the number of hours that may be worked by librarians and counsellors and does not address the definition of part-time or full-time librarians and counsellors. It is the position of counsel for the Colleges, on the other hand, that this provision defines a full-time employee and that any employee working less than 35 hours (except through the application of article 14.02 C which is not applicable to Dr. Price) is automatically a part-time employee within the meaning of the exclusions from the bargaining unit and is, thereby, excluded from the bargaining unit. Article 14.02 C 1 stipulates that, A full-time employee may request and, with the approval of the College, may undertake a less than full-load assignment for a mutually agreed period. This provision enables full-time counsellors to apply for a less than a full-time load. It does not, however, address the definition of "part-time" in the exclusions to the bargaining unit; instead it addresses a particular circumstance for employees who already have been determined to be "full-time" employees. - § - Counsel for the College asserts that under the instant collective agreement, "pm- time" for counsellors should not be accorded what has been referred to as a standard part- time exclusion, "persons regularly employed for not more than 24 hours per week," because the Legislature, in the Collet, es Collective Bar~ainint, Act, expressly used that definition of part-time in the exclusions for the support staff bargaining unit set out in Schedule 2. Counsel asserts that when the "not more than 24 hours per week standard" has been expressly adopted for the support staff bargaining unit and expressly excluded from the academic bargaining unit through the use of the more general phrase of exclusion, "counsellors ... employed on a part-time basis," it should be presumed from the dichotomy that the legislature did not intend the exclusion of part-time counsellors from the academic bargaining unit to be defined by reference to the "24 hour" standard. If it had, counsel asserts, it would have used the "24 hour" standard in Schedule 1 in the same way it used it in Schedule 2. It is not necessary for this Board to determine whether "part-time" in the exclusion of "counsellors...employed on a part-time basis" should be understood to mean counsellors regularly employed for not more than 24 hours per week because Dr. J. Price regularly works 21 hours per week and would, therefore, in any event, fall outside that description of part-time as well. Dr. Price clearly does not carry a full-time workload in that he does not work at or even near the 35 hour standard set for counsellors in article 11.04~ Moreover, there is no - 6 - limit on the scope of the part-time exclusion that would remove Dr. Price from its reach. As determined above, the 6-hour standard applicable to persons who teach is not applicable to Mr. Price who is a counsellor, not a teacher. In addition, even if (but clearly without so finding), a 24-hour standard could be implied, it would not assist Dr. Price who works only 21 hours per week. On the basis of the foregoing, therefore, this Board concludes that Dr. J. Price falls within the scope of "[...]counsellors ... employed on a part-time [...] basis" within the meaning of the exclusion to the academic staff bargaining unit set out in subsection (vii) of Schedule 1 of the Colleges Collective Barl~aininl~ Act and, equally, in subsection (v) of article 1.01 of the collective agreement. Accordingly, we find that Dr. J. Price is excluded from the academic staff bargaining unit. Accordingly, the grievance is hereby dismissed. DATED at Toronto this 22nd day of December, 1994. Pamela C. Picher I CONCUR "George Metcalfe" Employer Nominee I CONCUR "Gary Majesky" Union Nominee