Loading...
HomeMy WebLinkAboutUnion 93-05-31 GRIEVANCE AWARD Headnote 92A581 OPSEU 92A581 OPSEU Loc. 562 OPSEU, Local 562 (Union) and Humber College Award dated May 31, 1993 (Schiff) Grievance Upheld in Part Other: Article 8.15 - Reporting The Union grieved that the College had violated Article 8.15(b) of the collective agreement by failing to report the hirings and terminations of sessional and part-time personnel teaching the College's Futures, Ontario Basic Skills ("OBS") and Trainers courses.. Article 8.15(b) provides: 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 concerned. At such times, the College shall also include notification of all hiring of personnel assigned to teach credit courses including, in particular, sessional appointments. The Board rejected the Union's argument that the words "all personnel covered by the Agreement" should be interpreted to mean all personnel addressed by the Agreement, including sessional and part-time employees. The Board held rather that, under Article 8.15, the College was obligated to file reports only about bargaining unit employees, or in other words, full-time and partial load employees. The Board accepted the Union's alternative argument that the words "credit course" in Article 8.15(b) should be interpreted broadly to mean any course the College offers for which the College gives credit towards its diploma or certificate of completion, whether or not the course is formally a component of an approved program. Under this definition, the Board found that the College was obliged to file reports regarding bargaining unit employees in its OB$ program. Maureen Webb IN THE MATTER OF a union grievance AND IN THE .MATTER OF the arbitration of the grievance BETWEEN: Humber College of Applied Arts and Technology - and - Ontario Public Service Employees Union, Local 562 PLACE AND DATES OF HEARINGS: Toronto, Ontario, November 16, 1992, January 20, 22, March 9, April 20, May 7, 1993 BOARD OF ARBITRATION: Jane Grimwood George Metcalfe Stanley Schiff, chairman APPEARANCES FOR EMPLOYER: Nancy Hood, director of human resources Dale Hewat, counsel APPEARANCES FOR UNION: John Huot, local union president Maureen Webb, counsel AWARD AND REASONS The union grieves that the College has violated section 8.15(b) of the collective agreement by failing to give notification of hirings and terminations of sessional and part- time personnel. At the beginning, the grievance encompassed many courses and programmes. Later, the grievance was narrowed to Futures, OBS (Ontario Basic Skills) and Trainers. section 8.15(b) reads this way: 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 concerned. At such times, the College shall also include notification of all hirings of personnel assigned to teach credit courses including, in particular, sessional appointments. The union says that the words "all personnel covered by the Agreement" mean "all personnel the agreement addresses": only with that meaning can section 8.15(b) effectively enforce the flow of information necessary to implement the "objective" and "principle" of "employment stability" in the way section 28.01(a) (iii) directs. Moreover, says the union, unless the information it seeks is forthcoming under section 8.15(b), it cannot police the various provisions touching sessional and part- time positions. Here the union points to sections $.05(g) and (h) (bumping rights of bargaining unit personnel as against sessional and part-time employees), Appendix III, section l(c) (transforming sessional employees into bargaining unit members), section l(d) (imposing a duty on the College to redesignate - 2 - positions heretofore filled by sessional appointees as regular full-time bargaining unit positions) and section 2 (imposing a duty on the College to give preference to designating full-time positions as regular rather than sessional positions). Various provisions of the agreement deal with sessional and part-time employees, says the union, demonstrating that the agreement gives them rights. They are, therefore, "personnel the agreement addresses." Here the union points again to sections l(d) and 2 of Appendix III, and argues that section 3.01 of the agreement and Appendix I provide for sessional appointees' salaries. We understand the union's concern to obtain information helpful to enforcing the agreement. We conclude nonetheless that section 8.15(b) is not worded appropriately to do the job the union wants. Apart from all else, "covered'by the Agreement" is language commonly used in labour relations parlance to mean "within the bargaining unit". And, under section 1.01 of this agreement, sessional and part-time employees are specifically excluded from the unit. Of course, the parties might give the language a meaning different from the ordinary if they so choose. But, as we read other provisions in this agreement, we see that wherever else "covered by the Agreement" appears, the words always mean "within the unit". We see this in section 8.14(a) (accumulation of seniority), section 8.14(c) (maintenance of seniority), section 11.01 (availability of grievance procedure) and section - 3 - 14.01 (creation of a Campus Committee). And, in section 12.01 (deduction of union dues), the words "covered hereby" and "bargaining unit" are fused to emphasize the restriction. In the face of this repetition of language with the single meaning, we cannot think the language means something more and something different in section 8.15(b). Indeed, the provision is part of the group of provisions comprising the seniority article which clearly focuses on the rights of bargaining unit members. In this context, section 8.15(b) physically appears almost immediately after section 8.14(a) and section 8.14(c), where "covered by the Agreement" unquestionably means "within the unit". Even section l(c) of Appendix III, the one provision that may seem to support the union's argument, does not help. The first sentence says that, "[i]f a sessional employee is continued in employment for more than the period set out in paragraph (a) above, such an employee shall be considered as having completed the first year of the two (2) year probationary period and thereafter covered by the other provisions of the Agreement." The union argues that, if the sessional employee is "thereafter covered by the other provisions of the Agreement", he or she must have been covered by some of the provisions before. That is so only to a very limited extent. The sentence contemplates that, in the circumstances stated, a sessional employee will come within the unit by being treated as if he or she had satisfied - 4 - the first year of the probationary period the agreement requires. The "other provisions of the Agreement" which are meant are those other than section 8.01(a) (i), the provision setting out the two- year probationary period. The provisions the union argues give rights to sessional appointees and part-timers, on a close reading, mostly do not~. Section l(d) of Appendix III deals with designating positions as regular full-time bargaining unit positions and assigning unit members to them. It does not give a right to any sessional appointee. Section 2 of the Appendix in turn obliges the College to give preference to designating full-time positions as regular continuing positions rather than as sessional positions. It too does not give rights to sessional appointees. Indeed, the board in Centennial College (1987), unreported (Samuels, chairman), so held. As for section 3.01 and Appendix I, they deal solely with the salaries of bargaining unit members, and do not touch the salaries of sessional appointees. If there is any ambiguity about this, section (c) of Appendix I, applicable only to bargaining unit members, resolves the ambiguity. Section l(c) of Appendix III alone gives a right to sessional employees: they are automatically brought within the unit as probationers in the stated circumstances. But even section l(c) only grants the right to support the interests of the union and the bargaining unit: the provision is one of the group comprising the Appendix designed to govern the College's use of sessional employees in order to avoid abuse of their appointment in the stead of full- time teachers within the unit. The "'architectural flaw' in the agreement" the board in Centennial College saw is thus much smaller than they thought. Finally, we cannot ignore that the union's argued interpretation, as the union concedes, requires reading the second sentence of section 8.15(b) out of the agreement. Doing that to any provision would almost always be improper and, we think, an error a court on review would quickly correct. The arbitrator's constant duty is to make sense out of the language the parties have advisedly chosen and signed. We recognize, as the union pointed out, that the last five words of the second sentence are redundant on any reading. That, we can only conjecture, is the result of the parties' attempt to solve some now unknown problem by including the extra words for emphasis. In any event, the presence of the words does not move us to adopt the union's argument. The union then says that, under the second sentence of section 8.15(b), it is nonetheless entitled to notification of all hirings of personnel assigned to teach any publicly-funded course the College offers. That meaning of "credit course" is, we think, unfounded on the evidence and ordinary usage, and we cannot adopt it here. At the same time we are attracted to the union's alternative argument that what "credit course" means should be found in the College's factual conduct in giving credit toward completion of programmes it offers. That argument is supported by the thinking of the board in Fanshawe College (1989), unreported (Swan, chairman), and we agree with it. The College gives diplomas or certificates of completion to students completing programmes approved by the Ontario Ministry of Colleges and Universities. A programme so approved the College designates as a "credit programme" and each of its components as a "credit course". In our view, for the purpose of section 8.15(b), a "credit course" is that, but it is more than that: a "credit course" is any course the College offers for which the College gives credit toward its diploma or certificate of completion, whether or not the course is formally a component of an approved programme. That seems to us the way the term is ordinarily used, and nothing in the agreement or in the evidence shows that the parties intended a narrower meaning. When we consider the evidence about the three programmes still in dispute, we see that neither Trainers nor Futures is shown to be a "credit course". Indeed, the contrary. But OBS is different. The College's Director of Research and Development told us that, while it is not an approved programme, OBS is taught in the same classroom at the same time as BTS Developments, which is an approved programme. Any OBS student who obtains the levels required under BTS Developments receives a certificate for the BTS credit. That is enough to render OBS a "credit course" within section 8.15(b). The College is therefore -- 7 -- bound to inform the union in the detail the provision requires about all hiring of personnel assigned to teach OBS. To the extent set out, the grievance is allowed. DATED at Toronto this ~{~7% day of May, 1993.