HomeMy WebLinkAboutBenhaggai 93-02-16 BETWEEN
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
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GEORGE BROWN COLLEGE
Grievance of L. D..~3Benhaggai~ OpSEU #91A209
Before: M.G. Mitchnick - Chairman J. McManus - Union Nominee
R. Bubert - Employer Nominee
Appearances:
For the Union: David I. Bloom, Counsel
Amy Thornton
Tom Tomassi
Theresa Sheenan
David Benhaggai
For the Employer: F.G. Hamilton, Q.C., Counsel
S. Layton
Bearings in Toronto: April 5, October 8, November 4, 1991;
February 13, February 14 and July 3, 1992.
AWARD
This grievance is filed on behalf of David Benhaggai,
and as will be seen, raises squarely the issue of the status of
"Continuing Education" teachers at the College. The grievor was
hired in 1983 to teach one 3-hour class in "Introduction to
Photography" as part of the College's Continuing Education
program in the Visual Arts. By 1985 the request for his services
was up to as much as five such classes per week, giving him 15
hours, a week for at least the fall and winter terms. As of
September of 1988, that 15-hour week was extended to all three
terms, and that pattern was repeated for the September 1989
school year as well. In June of 1990, at the end of that year,
the grievor testified that he'was given an indication by the
Chairman of his department that the Dean was out to "sack" him.
At the same time an arbitration decision issued for Canadore
College which indicated that the assignment of Continuing
Education classes, at least for regular "full-time" teachers,
were subject to the overall workload restrictions of the
collective agreement. That decision will be discussed further
below, but for present purposes it can be said that the response
to it of the administration at George Brown College was to issue
a directive to all Chairs and Deans to restrict any one
Continuing Education teacher to a,maximum of 6 hours a week (the
limit for exclusion as "part-time" under the collective
agreement) while the full impact of the Canadore decision was
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being .assessed, and an attempt made to work out a "Local
Agreement" with the union which would deal withthe matter. The
grievor was one of those affected by the restriction, and
accordingly the offer that was mailed to him in August of that
year to continue his teaching in the Continuing Education program
for September of 1990 was limited to two classes, or 6 hours a
week. With the comments of the Department Chairman as to "being
sacked" still fresh in his mind, however, the grievor regarded
this offer as a "constructive dismissal", and made no reply to
the College whatsoever. Instead, the grievor filed a complaint
of unfair discharge with the Ontario Labour Relations Board.
Discussions on that complaint produced an agreement to have it
withdrawn, in return for acknowledgement of the right of the
grievor to file a grievance under the terms of the collective
agreement, which in effect would provide a test for the issue of
the grievor's status. The College agreed to waive any objection
as to "arbitrability", reserving only the right to challenge the
grievor's entitlement with respect to certain remedies, on the
ground of "laches", or untimeliness on the basis of the
provisions of the collective agreement itself. The relevant
provisions in that regard are 11.02 and ll.05(a),.which provide:
11.02 Complaints
It is the mutual desire of the parties hereto that
complaints of employees be adjusted as quickly as
possible and it is understood that if an employee has a
complaint, the employee shall discuss it with the
employee's immediate Supervisor within twenty (20) days
after the circumstances giving rise to thecomplaint
have occurred or have come or ought~reasonably to have
come to the attention of the employee.in order to give
the immediate Supervisor an opportunity of adjusting the
complaint. The discussion shall be between the employee
and the immediate Supervisor unless mutually agreed to
have other persons in attendance. The immediate
Supervisor's response to the complaint shall be ,given
within seven (7) days after discussion with the
employee.
11.05 General
(a) If the grievor fails to act within the time
limits set out at any Complaint or Grievance Step, the
grievance will be considered abandoned.
What the grievance actually seeks by way of remedy is:
(1) A declaration that I am a full-time permanent
employee and have been a member of the bargaining
unit throughout the term of the current collective
agreement.
(2) Payment of all salary & benefits flowing from this
recognition, retroactive to September 1, 1989.
(3) Reinstatement to the grievor's former full-time
position.
(4) Full interest on all monies payable.
On the question of "delay", it might be noted that the grievor's
evidence initially was that he had no knowledge whatever of the
existence of the union or a collective agreement until he began
to make his inquiries following the remark of the Chairman in
June of 1990. Upon cross-examination, however, the grievor
conceded that the presence of the union was known to him at least
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as of 1984, with the strike of the bargaining unit and its
.attendant picket lines, but then added that there was a
difference between the question of whether or not there was a
union at the College, and whether one was represented by and
covered by the terms of its collective agreement.
Currently there are some 9-1200 teachers teaching
Continuing Education courses at George Brown College. These may
be teachers already on staff with a department of the College and
part of the regular "day-time" courses, or they may be hired from
outside, solely to teach Continuing Education. In the latter
case they receive an hourly rate only, have no entitlement to
benefits, and are not treated as going through a "probationary"
period. Unlike "day"-program teachers, including long-term
sessionals, their hiring is not done through a formal committee
process, nor is it subject to advance approval by senior
management as to complement. The courses are taught evenings and
weekends, and generally do not qualify, as a credit towards the
post-secondary diplomas offered by the college. Where it is
sought to make them a "credit" course, this can only be done
through approval of the course by the Ministry of Colleges and
Universities. And in that event the course becomes "funded" by
the Ministry, although on a lesser formula than' that applying to
full-time courses. The vast majority of Continuing Education
courses are not "credit" courses, however, and are considered
"General Interest" only. 'That means, in turn, that they are
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requir, ed to be self-financing - i.e., carried only by the tuition
fees of the students, or by contributions from an outside agency
interested in having the course offered.
Apart from the aforesaid "diplomas", which do have
post-secondary recognition, the College also has developed a
practice with respect to some of its Continuing .Education courses
or coUrse-groupings of making "certificates" available on
completion because, as one of the witnesses put it, students tend
to want to walk away with a piece of paper at the end of it all.
The description of these certificates in the Continuing Education
catalogue seems to vary from year to year, and their effect is
not entirely clear, but at least one of the excerpts filed set
out the following:
This is a general interest program'designed to help
students develop technical skills and aesthetic
sensibilities in photography. Students with appropriate
skill levels may receive advanced standing, and may
enter the program at the intermediate or advanced
levels. While students may register for individual
courses, a certificate is awarded upon successful
completion of the four required courses and one
elective.
REQUIRED
PHOT 8000 Introduction to Photography
· PHOT 8010 Intermediate Photography
PHOT 8020 Advanced Photography
PHOT 9220 Black-and-White Print Workshop
Photography is also offered as a "day" program for career
purposes, and the grievor testified that his students were a mix
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of general-interest and career-oriented _individuals, with some
using it for "remedial" purposes for their "day".course and, as
the grievor understood it from some of the comments, even
receiving credit for it. In that respect the grievor was more
directly involved in writing letters of reference for some of his
students to other Colleges, where, he gathered, some measure of
equivalent credit was being accorded his course. That limited
awareness on the part of the grievor, however, is in contrast to
the evidence of the Department's Chairperson, having
responsibility for the Department's courses and budget, and who
indicated that from the College and the Ministry's point of view,
the course (as with all Continuing Education courses in
Photography) was treated purely as a non-credit General Interest
one, and not funded - and that had it been a requirement to pay
for it at the salary scales negotiated for "day" programs under
the collective agreement, it would simply not have been
economically feasible to offer the course.
The Union argues simply that there is no exclusion for
individuals like the grievor under the parties' collective
agreement. Article 1.01, the Union submits, is in broad,
all-inclusive terms, and persons like the grievor, unlike
"part-time" or "sessional" teachers, do not fall within any of
the specified exclusions. Article 1.01 provides:
The Union is recognized as the exclusive collective
bargaining agency for all academic employees of the
Colleges engaged as teachers, counsellors and
librarians, all as more particularly set out in Appendix
1 hereto save and except Chairs, Department Heads and
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Directors, persons above the rank of Chair, Department
Head or Director, persons covered by the Memorandum of
Agreement with the Ontario Public Service Employees
Union in the support staff bargaining unit, and other
persons excluded by the legislation and teachers,
counsellors and librarians employed on a part-time or
sessional basis.
NOTE A: "Part-time in this context shall include
persons who teach six hours per week or less."
NOTE B" "Sessional in this context shall mean an
appointment of not more than twelve months duration in
any twenty-four month period."
Appendix I simply sets out the salary schedules for "Professors
and Counsellors and Librarians". The exclusions "by legislation''
refer to the bargaining, unit set out in Schedule i to the
Colleges Collective Bargaining Act, which provides:
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) Chairmen,
(ii) department heads,
(iii) directors,
(iv) persons above the rank of chairman,
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,
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(viii) teachers, counsellors o~ librarians who are
appointed for one or more sessions and who
are employed for not more than twelve months
in any twenty-four month period,
(ix) a person who is a member of the
architectural, dental, engineering, legal or
medical profession, entitled to practise in
Ontario and employed in a professional
capacity, or
(x) a person engaged and employed outside
Ontario.
(The term "teachers", used originally in the statute, has come to
be replaced by the partiesin their collective agreement by the
term "professors".)
Articles 3.01 and 3.03(1) provide:
3.0~ The salary scales applicable to full-time
employees shall be as set out in Appendix I attached
hereto.
3.0~ (1) The Salary scales as set out in Appendix I
will apply to persons teaching more than twelve (12)
hours on a regular basis. Persons teaching over six (6)
and up to and including twelve (12) hours on a regular
basis will be covered by paragraph (2) hereof and
Appendix II.
Once again, the Union simply notes that the grievor has been both
employed on a "regular" basis, of 30 weeks a year since 1983, and
for more than 12 hours a week, at least since 1987. The Union
submits that on the basis of those "full-time" hours, the grievor
also has qualified for the acquisition of seniority stated under
Articles 8.01(a)(i) and (c) which provide:
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8.01 (a)(i) A full-time employee ~ill be on probation
until the completion of the probationary period. This
shall be two (2) years' continuous employment except as'
described hereafter.
8.01 (c) On successful completion of the probationary
period, a full-time employee shall then be appointed to
regular status and be credited with seniority equal to
the probationary period served.
Article 8.09 does also provide:
8.09 Extension and Continuing Education programs and
courses which are not included in the regular assignment
of full-time employees are excluded from the application
of this Article for all purposes.
The Union argues, however, that the grievor in this case is the
"full-time" employee in whose regular assignment these Continuing
Education courses are included, and that the purpose of Article
8.09 is to prevent someone already a full-time teacher accruing
more than full-time seniority as a result of teaching additional
Continuing Education courses. The Union submits that Article
8.09 also would prevent full-time teachers in a lay-off situation
from bumping a part-time or partial-load teacher in Continuing
Education.
In response to the Union's argument~ the College relies
on the conduct and practice of the parties since prior to the
time the Colleges Collective Bargaining Act was even passed to
demonstrate that it was never the understanding of anyone that
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persons hired solely for the Continuing Education program of the
College were covered by the terms of the parties' collective
agreement. When the Colleges in 1967 were found to be "crown
agents", it appeared that the bargaining rights for their
employees, as "public servants", would automatically fall to the
Civil Service Association of Ontario, as it was then known. That
right of the CSAO to bargain was challenged in Court, however, by
a group of teachers representing the "Ontario Federation of
Community College Faculty Association", and in an arrangement
mediated by the Minister of EdUcation, it was agreed that the
question of bargaining rights for the academic bargaining unit
would be decided by way of a representation vote, presided over
by an "umpire" appointed by the government, Mr. Howard Brown.
The bargaining unit was described in that arrangement as:
All academic employees of all Colleges of Applied Arts
and Technology engaged as teachers (including teachers
of Physical Education), counsellors and librarians, save
and except Chairmen, Department Heads and Directors,
those above the rank of Chairman, Department Head or
Director, persons employed in the non-academic
Bargaining Unit represented by the Civil Service
Association of Ontario (Inc.), and teachers, counsellors
and librarians employed on a part-time basis.
The Federation in fact failed to make it onto the ballot in
accordance with the threshold percentage established by this
arrangement, and the teachers in a "one-way" vote affirmed their
desire to have the CSAO represent them. A first collective
agreement was concluded in September 1972, running to 1974, and
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describing the bargaining unit in the fqllowing additional terms
(being in all material respects the present language):
RECOGNITION
1.01
The Association is recognized as the exclusive
collective bargaining agency for all academic employees
of the Colleges engaged as teachers (including teachers
of Physical Education), counsellors and librarians, all
as more particularly set out in Appendix 1 hereto, save
and except Chairmen, Department Heads and Directors,
persons above the rank of Chairman, Department Head or
Director, persons covered by the Memorandum of
Understanding with the Civil Service Association of
Ontario (Inc.) in the non-academic bargaining unit and
teachers, counsellors and librarians employed on a
part-time or sessional basis.
NOTE A: "Part-time in this context shall include
persons who teach less than six hours per week."
NOTE B: "Sessional in this context shallmean an
appointment of not more than twelve months duration in
any twenty-four month period."
The next collective agreement ultimately came to be imposed by.a
board of arbitration chaired by Mr. Justice Estey, and which
contained the same "Recognition" language as in the previous
collective agreement. Then came passage of the Colleges
Collective Bargaining Act, with the bargaining unit set out in
Schedule I as shown above. In connection with that, Mr. Hamilton
has filed excerpts from Hansard quoting the then-Minister of
Colleges and Universities, the Hon. J. A. C. Auld, as follows:
Hon. Mr. Auld: Mr. Chairman, at the present time,
as far as the college end is concerned, the difference
between this bill and Bill 100 is that there is a
collective agreement in force and we have designed this
bill around the provisions of'that agreement, including
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those' who are presently included, excluding those who
are presently excluded, but making provision for
application before the Labour Relations Board to
whether, in fact, somebody who is presently called a
chairman or a director or a foreman or whatever, is
actually carrying out the managementfunctions of that
position ...
And further:
Hon. Mr. Auld: Mr. Chairman, first of all as far as the
exclusions are concerned - particularly the part-time
people - this is the basis of the present agreement and
one which has worked for some time. I think the Hon.
member realizes that in the community colleges, with the
part-time and the evening courses and so on, the
variations, the changes, are so great that there can be
quite a turnover of part-time staff.
When the Act was finally passed, the parties of. course continued
their bargaining relationship under it, but in fact reverted to
the "Recognition" language of their own previous collective
agreements.
The main point of the College in setting out this
bargaining and legislative history was to demonstrate that
"Continuing Education" teachers at no time were considered part
of this process of selecting, or negotiating through, a
bargaining agent. Mr. Tom Storie, a partner in the law firm of
Hicks, Morley, Hamilton, Stewart, Storie involved in the
identification of "eligible" employees for the Colleges. at the
time of the vote, testified that to the best of his recollection
the discussion was focussed around teachers on "full-time"
contracts, which, as a practical matter, came to be a question of
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those.who were on benefits, and in particular in the Pension
Plan. The correspondence passing back and forth in the efforts
to ascertain the List of eligible employees appears consistent
with that recollection. A letter from St. Clair College
responding to "List" inquiries from the Colleges' Staff Relations
Committee dated November 6, 1970, for example, notes:
(d) We indicated separately Retraining teachers on
our Academic lists and there were no part-time
or casual Academic, no hourly rated Academics
listed, no daily rated Academics listed, nor
any seasonal or temporary Academics listed.
A further challenge by the Federation to the list submitted by
George Brown College was described as follows:
The persons on this list are all paid by the day and do
not hold a full-time contract according to the criteria
governing permanent employees of the colleges. Until
their status is clearly defined through negotiation, the
Federation considers them ineligible for the purpose of
determining the agencies which shall have access to the
ballot.
And in a further challenge to the St. Clair College list:
The position of the Manpower Retraining Personnel
still remains unresolved. Notwithstanding the job
titles attributed to the personnel on the list in
question, it would appear that there is some difference
of opinion whether or not these persons hold full-time
contracts'in the sense of permanent employees. We have
been unable to determine whether these people do or do
not contribute to the college pension plan or to the
College hospitalization plan. Inasmuch as these two
criteria might be considered valid for the purposes of
determining the status of these employees, we challenge
their inclusion in the bargaining unit for the purpose
of determining eligibility for the ballot.
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Mr. Storie's recollection is further borne out by the evidence of
Douglas Light, recently-retired President of the College and a
participant in the Colleges' system since it began. Mr. Light
testified that persons in the category of the grievor definitely
were not included in the bargaining unit at the time of the
original vote. Mr. Light acknowledged, however, that at that
point in time there was no specified limit of hours defining who
was a "part-time" employee; a teacher was either on a "full-time
contract", or considered part time.
With respect to the practice at George Brown College
itself, there is no dispute on the evidence but that Continuing
Education courses have never been paid at the salary scales for
full-time teachers, or even at the hourly rates for partial-load
teachers. When taught by regular faculty members of the
Department, they are done so on a volunteer basis, at the
Continuing Education hourly rate applicable to the "pure"
Continuing Education teachers as well. With °nly two known
exceptions, the Continuing Education hours have never been
included in SWF's, whether taught by persons on the regular
faculty or otherwise. Those two exceptions were treated by the
College as exactly that, solely for the purpose of maintaining·
two long-time faculty members at a level of hours that would
avoid their having to be laid off. It is the testimony of Amy
Thornton, President of the Local at George.Brown since May of
1989, and Chief Steward for 5 years before that, that it was not
until.approximately the same time as the present case arose that
it came to her knowledge that there were persons teaching solely
in the Continuing Education program in excess of 12 hours a week.
Ms. Thornton added that it was essentially the number of hours
that she was concerned with, not where they were taught, and she
noted that 'partial-load' members of the bargaining unit were not
the subject of SWF's either. As will be discussed, there are
lists of staff changes which'go to the Union President under
Article 8.15(b), and these since 1989 have been coming to Ms.
Thornton. Ms. Thornton testified that it was always her
understanding that these lists covered all of the persons engaged
in the academic business of the College,~i.e., all courses
pertaining to career-orientation, and that the only exceptions
were courses like Sailing that were offered under contact by
outside sources. Ms. Thornton was not aware of any distinction
between "funded" and "non-funded" courses, and specifically
recalls asking about some of the teachers shown on the List for
the CPR program, which she believes is a non-funded, non-credit
program. Ms. Thornton also notes that a Mr. Fitzpatrick is shown
teaching 4 hours in Continuing Education Photography, which the
College now maintains is anon-credit course. And she further
recalls a Mr. Rodack in the Plastics Department several years
earlier having his Continuing Education course on Saturday being
counted as part of his regular full-time hours. Ms. Thornton
acknowledges, however, that until the grievor there has never
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been any claim, to her knowledge, put forward by anyone in the
Union that a person teaching more than 6 hours a week purely in
Continuing Education was covered by the provisions of the
collective agreement.
What brought all of this to the forefront, in fact, was
a decision of a board of arbitration on a grievance at Canadore
College (decision of H. D. Brown, issued February 20, 1990). At
Canadore the administration in 1988 advised the Union that it
considered it proper to employ full-time teachers to teach
Continuing Education courses over and above their regular
workload, so long as the teachers did so voluntarily. The
College then proceeded to do that and the Union grieved, claiming
that such an arrangement violated the express terms of the
collective agreement pertaining to "workload", and could only be
carried out through the medium of a "local agreement" with the
Union. The terms of the collective agreement which the Union
relied upon were Articles 4.01 and 4.01(2)(a) and (b), which
provide:
4.01 (1) Each teacher shall have a workload that
adjures to the provisions of this Article.
4.01 (2) (a) Total workload assigned and attributed by
the College to a teacher shall not exceed forty-four
(44) hours in any week for up to thirty-six (36) weeks
in which there are teaching contact hours for teachers
in post-secondary programs including nursing and for up
to thirty-eight (38) weeks in which there are teaching
contact hours in the case of teachers not in post-
secondary programs. The balance of the academic year
shall be reserved for complementary functions and
professional development.
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Workload factors to be considered ~re: (i) teaching contact hours
(ii) attributed hours for preparation
(iii) attributed hours for evaluation and
feedback
(iv) attributed hours for complementary
functions.
4.01'(2)(b) A "teaching contact hours" [sic] is a
College scheduled teaching hour assigned to the teacher
by the College.
The issue in the case was whether or not these extra teaching
hours, having been taken on on a "volunteer" basis by the faculty
member, should be considered to have been "assigned" by the
College, within the meaning of Articles 4.01(2)(a) and (b). The
arbitrator ruled that it should, observing at page 15 that:
· The assignment of work is not necessarily the same
~ limited to the compulsion of an individual by his
Employer to teach a course.
And thus that:
.. an hour of teaching in Continuing Education falls
within the definition of a teaching contact hour because
after the arrangement has been made for the services of
the teacher for that course, the teaching hour is
assigned by the College to that teacher in Continuing
Education. Those hours of teaching are not excluded in'
that definition ...
The board concluded that:
... there is no reason in our view, to conclude that the
maximum work load provided by the parties can be ignored
by a voluntary arrangement to teach with individual
members of the bargaining unit who voluntarily enter
into an individual contract of employment with the
College.
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And it is in that context, in terms of What the case was actually
deciding, that the following comments appear at page 17 and 19
respectively:
... We find that the circumstances of this case brings
the individual arrangement between the College and the
faculty members to teach in Continuing Education within
the terms of the Collective Agreement and therefore the
Employer must apply the terms of Article 4.01 in that
regard.
We find on the facts relating to the issue in this
matter that Article 4.01 applies to the faculty members
covered.by the collective agreement who teach courses in
the Continuing Education program in the evenings.
There was, as can be seen, no issue of employee
"status" before the board in the case at Canadore College at all.
The individuals in question already were members of the
bargaining unit covered by the agreement, and everyone recognized
that. The only issue was whether the restrictions on teaching
hours that could be assigned to such members of the bargaining
unit could be ignored in the case of Continuing Education hours,
and the arbitrator ruled that they could not. At the time it was
first released it did, understandably however, generate a good
deal of discussion and confusion, and the administration at
George Brown College, out of an abundance of caution, issued the
directive noted at the outset, that its Deans and Chairs were to
limit even those persons teaching solely Continuing Education
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hours.to a number which would maintain exclusion from the
bargaining unit in any event.
Certainly on all of the evidence there is established
before us at least a "latent" ambiguity as to who it is the
parties have been referring to as academic "employees" covered by
their successive collective agreements - specifically, with
respect to the now-alleged inclusion of those persons hired, in
the manner described above, solely to teach in the Continuing
Education program of the college. In the oft-quoted General
Concrete of Canada Ltd. (1976), 22 O.R. (2d) 65, leave to appeal
granted but then quashed 340 O.R. (2d) 279n, for example, a board
of arbitration, notwithstanding past history, concluded that
owner-operators were necessarily covered by a collective
agreement having an "all employee" scope clause. The Court
noted, inter alia, at page 70:
... There was no disagreement that the truck drivers had
never been included by either of the parties within the
provisions of any relevant collective agreement for many
years; that such persons had been considered apart and
distinguishable from the other employees; that neither
drew the question of these drivers to the attention of
the other during the negotiations for the agreement.
And in the course of deciding to quash the award of the board of
arbitration, commented in particular, at page 67:
... The question that was before the board fOr it to
determine and to which it failed to direct itself was,
what was the intent of the parties to the contract when
it was drawn as to the meaning of the word "employees"
and did the parties intend it to apply to drivers such
as these? The board of arbitration had to determine
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whether these truckers were included in the phrase "all
employees in its Hamilton Division" and to do it had to
ask itself what was the meaning ascribed to that phrase
by the parties to the agreement.
Similarly, see Leitch Gold Mines Ltd. v. Texas Gulf Sulphur
(1968), 3 D.L.R. (3d) 161 (Ont. C.A.). The Union can point to no
example of an individual like the grievor employed solely in
COntinuing Education being treated as coming under the terms of
the collective agreement in any respect. On the other hand, the
evidence does not establish with any clarity the number of pure
Continuing Education teachers who, like the grievor, were
assigned t° teach more than 6 hours a week on a regular or
continuing basis. Similarly, the apparent test for eligibility
at the time of the initial representation vote separated only
"full-time contract" teachers, and all others. While that once
again points in the direction of the exclusion of Continuing
Education, it is not a test which focuses clearly on the
distinction between "part-time" people teaching at or below the
6-hour mark, which developed later.
Where the evidence is not equivocal, however, is in
respect of the lists of staff additions and deletions which the
collective agreement dictates be provided to the Union under the
informational requirements of Article 8.15(b). That Article
currently reads:
During the last week of September, January and May the
College shall notify the Local President of all
personnel covered by the Agreement hired or terminated
since the last notification, together with the
classification, location and division or Department
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concerned. At such times, the Col%ege shall also
include notification of all hirings of personnel
assigned to teach credit courses including, in
particular, sessional appointments.
That is, however, a revised version. Until 1985, what the
parties stated in that clause was:
(b) Effective October 31st and at least quarterly
thereafter, the College shall notify the local branch
president of all hirings of personnel assigned to
perform work of the nature of that performed by the
members of the bargaining unit, provided that the extent
of a person's work is in excess of twenty hours in a
month and except as to persons employed in extension and
continuing education. The College shall supply the
Union with an initial list of all personnel who
performed such work to such anextent during October.
(emphasis added)
Ms. Thornton herself was of course not President back that far,
but what that language shows is that the Union, until 1985, was
not even interested in the comings and goings of teachers in
Continuing Education. When they did become interested, the
extent of that interest was specified to be with respect to
"credit" courses only (of which, although nothing would appear in
the end to turn on it, the grievor has failed to clearly
demonstrate that he taught one). Consistent with that language
change, those additional lists, at least in latter years, have in
fact been designated on their face as "Funded", and the errors
admitted to in that regard are not so widespread as to elevate
the exception to a rule. But more importantly, that limited
- 22 -
extension of the scope of Article 8.15(b) alone is not sufficient
to infer an intent to suddenly include at least "funded,, ~
Continuing Education program teachers in the bargaining unit,
given that another clearly "excluded" group, "sessionals", were
added to that informational list as well. In all other respects
the. practice and conduct of the parties with respect to "pure"
Continuing Education teachers remained as it always had been, and
that recognition of their exclusion' is far more consistent, for
example, with the language of Article 8.09, which once again
states:
8.09 Extension and Continuing EducatiOn programs and
courses which are not included in the regular assignment
of full-time employees are excluded from the application
of this Article for all purposes.
than the alternative interpretations which Mr. Bloom has
valiantly tried to put upon it.
That is not to say (as Article 8.09 itself notes) that
all ContinUing Education hours are therefore irrelevant for the
purposes of the collective agreement, and the restrictions
pertaining to those teachers otherwise covered by it. The
Canadore College case amply demonstrates that they are not.
Indeed, even before that, Mr. Brown in a case at Sheridan College
(issued May 30, 1983), focused on the very words
"which are not included in the regular assignment of
full-time employees"
- 23 -
in Article 8.09 to find that Continuing .Education hours taught by
an employee already in the bargaining unit counted towards
completion of the employee's probationary period. In fact, the
more interesting distinction adverted to in that decision, with
respect to the case now before us, is found at page 19, as
follows-
... In our opinion, Article 8.15(b) does not support the
Employer's position in this matter, in that it deals
with information requirements to be given by the
Employer to the Union, of persons in two categories and
exempts such information concerning excluded employees
teaching in the Extension and Continuing Education
Division, but not of those employees who are bargaining
unit members who may be assigned work in Extension and
Continuing Education Departments, which would include
the grievor .... )
More broadly, there is clearly a growing interest, as reflected
in the amendment to Article 8.15(b) itself, on the part of the.
Local to monitor the allocation of any available credit hours, be
they amongst Continuing Education or amongst sessional teachers,
with a view to identifying, especially in times of restraint, a
potential source of full-time workload hours (see the comments of
the board in Fanshawe'College, a decision released by this same
chair, on June 18, 1992).
But on the issue before us, when one combines the
history of the parties' dealings on this issue, together with
that of the.collective agreement language itself, the conclusion
one is overwhelmingly driven to is that pure Continuing Education
- 24 -
teachers are not covered by the provisions of the collective
agreement as it has been negotiated by the parties. Whether, as
Mr. Bloom argues, there are, notwithstanding the full history set
out herein, bargaining rights stipulated by the Colleges
Collective Bargaining Act that go further so as to include the
representation of Continuing Education teachers, and to which not
even "estoppel" can apply, is not a matter for a board of
arbitration. Our only function is to interpret the collective
agreement that is before us, and we find that that collective
agreement is not one that the parties have negotiated to cover
Continuing Education teachers in themselves.
The grievance is accordingly dismissed.
Dated at Toronto this 16th day February, 1993.
"J. McManus"
I DISSENT:
(with reasons UNION NOMINEE
to follow)
"R. A. Hubert"
I CONCUR:
EMPLOYER NOMINEE