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HomeMy WebLinkAboutUnion 89-08-28 HEADNOTE OPSEU #88C677 Articles: Union Grievance (OPSEU) vs. L~mbton College This was a Union grievance concerning the payment policy by Lambton College for sessional teachers. The Union alleged that the College ought to pay sessional teachers in accordance with the Step Rates in Appendix 1 for Teaching Masters and Counsellors. The College alleged that the Board did not have jurisdiction to deal with the grievance because it was not an issue which was covered by the collective agreement. The Board referred to the case of Re Cambrian College and OPSEU (unreported - Weatherill, February, 1979) and Re Loyalist College and OPSEU (unreported - Brent June, 1984). The Board found that the issue raised in both cases was similar to that of the present grievance. The Board found that the same contractual provision existed and that the parties did not deal in their agreement with the salaries of sessional employees. Decision: The preliminary objection to jurisdiction of the Board was allowed. The Board does not have the authority to deal with the issue raised by the Union in this grievance as there is no provision in the collective agreement which the Board can interpret or apply in order to determine whether there was a contravention by the College of the agreement. The Union only has a right to file a grievance for sessional employees with regard to the administration of the collective agreement as it pertains to such persons, but the dispute raised by the grievance must relate to a provision of the agreement in order for the Board to have the authority under the terms of the agreement to deal with the grievance as defined by Article 11.12(C). With respect to the issue of arbitrable deference, the Board found that the Weatherill and Brent decisions were directly on point and that the principles enunciated in the above- noted awards should be followed as a matter of good industrial relations policy. IN THE ~ATTER OF AN ARBITRATION BETNEEN: LAHBTON COLLEGE (The College) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UHIOH, LOCAL 125 (The Union) AND IN THE ~IATTER OF A UNION GRIEVANCE RE NAGES - SESSIONAL EMPLOYEES (OPSEU FILE #88C~77) BOARD OF ARBITRATION: H.D. BROWN, CHAIRHAN Il. HAJESKY, UNION IiOI~IHEE G.H. HETCALFE, COLLEGE NOMINEE APPEARAHCES FOR THE COLLEGE: JOHN SAUNDERS, COUNSEL T. BLUNDELL G. SILVER APPEARAHCES FOR THE UNION: MS. C. PIKE, COUNSEL Wm. ARHOLD W. KRAWCZYK A HEARING IN TI!IS HATTER WAS' HELD AT SARNIA ON JUNE 13, AWARD The Union filed a grievance on Hovember 7, 1988, under the provision of a Collective Agreement between the parties claiming that the payment policy of the College for sessional teachers was in violation of Article 3 and Appendix I and 3 of the Collective Agreement. The Union seeks payment for sessional teachers in accordance with the step rates in Appendix 1 for teaching Masters and Counsellors. The College took the position that the grievance was not arbitral under the Agreement and therefore the Board did not, have jurisdiction to deal with the grievance. At the hearing, the Board received the submissions of the parties concerning the preliminary issue raised by the College. The Board ruled orally, follo~ing such submissions, that it reserved its decision on the question of its jurisdiction and would determine that issue before proceeding in this matter. It is the position of the College t'hat the Union is requesting the Board to deal ~ith an issue which is not covered by the Collective Agreement, namely, ~ages paid to sessional employees who are excluded from the bargaining Unit pursuant to 'the College's Collective Bargaining Act, Section 2 l(b) which is: "bargaining unit means the academic staff bargaining unit of employees where the support staff by the Union employees set out in Schedules i & 2. Section 67(1) of the Act provides: "That the bargaining unit'set out in the schedules are %he units for collective bargaining purposes under this Act." Article 1.01 of the Collect.ive Agreement excludes sessional employees who are defined as those with "an appointment of not more than 12 months duration in any 24 month period." Schedule I of the Act refers to "The academic staff bargaining unit" and does specifically exclude in (iii) sessional employees. Therefore in its submission such employees are not covered under the Collective Agreement and the Board .does not have jurisdiction to deal with these persons. Sessional employees are dealt with in Appendix 3 of the Collective Agreement which includes the following definition in Section l(a): l(a) A sessional employee is defined as a full time employee appointed on a sessional basis for up to t~elve (12) full months of continuous or non- continuous accumulated employment in a t~enty-four 3 (24) calendar month period. Such sessional employee may be released upon two (2) weeks' written notice and shall resign by giving two (2) weeks' ~ritten notice. It was submitted that ~hile the Union has acknowledged to have the right under the Agreement to file a grievance concerning an alleged violation of the Agreement for sessional employees as they could not grieve individually under the Agreement, the issue raised in this grievance cannot be determined by this Board as it is not a proper matter for a grievance as the wages of sessional is not dealt with in the Collective Agreement in any way. It was argued that two previous arbitration decisions were directly, on point and should be followed by this Board t.o find that it lacks jurisdiction. Re Cambrian College and OPSEU (Unreported - Lleatherill, February 1979); re Loyalist College and OPSEU (Unreported - Brent, June 1984). In both cases the issue is the same dealing with essentially the same contractual provisions that ex~st for the agreement under which the grievance is filed, each of which it was found that the parties did not deal ~ith in their agreement, salaries for sessional employees. It was argued that the Board should follo~.~ the results of those awards unless it found that they were wrong. As well, v~hile the facts ~-~ere similar but not identical, but the issue was the same and essentially the terms of the Collective Agreement apply. Reference was made to re Phillips Cables Ltd. and U.E. 16 (2d) 225 (Swan); re Canadian. Johns - ~lan~ille and ICWU Local 346 12 LAC (2d) 266 Burkett); re TTC and ATU Local 113, 21 LAC (3d) 346 (Saltman); The submission for the Union was that the two awards relied on by the College dealt with the merits of the action in those cases 'and not the question of jurisdiction as in the instant matter. The Union has the right to file a grievance under Article 11.10 of the Collective Agreement on a difference between the parties as to the administration of the Collective Agreerlent of which it is concerned as to the interpretation and operation of Articles 1.01, 1.03 Appendix I and III of the Agreement. Article 3.01 provides that the salary scales applicable to "full time employees" are in Appendix I. By Appendix III a sessional employee is defined as a full time employee and in its submission should be paid in accordance with the salary steps set out in Appendix I for Teaching Masters and Counsellors. Sessional employees are covered under Appendix III of the Collective Agreement and a grievance can be raised with regard to their interests under the Agreement. It was submitted that a change of the policy by the College as to the payment of ~ages to sessional employees was a threat to the bargaining unit ~hich the Union seeks to defend. Reference was made to re CAIiBRIAH College and OPSEU (unreported - Brown, July 1987). In that case it ~as found by the Board at page 9 - "the parties have given the right to the Union to file a grievance based on direct difference arising out of the interpretation, application and administration or alleged contravention of the Agreement which would include Appendix III. Clearly, an individual sessional employee is not entitled to grieve under the Collective Agreement and therefore the second part of Article ll.lO does not apply~ The administration of Appendix III which may include the interpretation where there is an alleged violation is clearly to us a matter which the Union can raise through a grievance procedure. The Union has a direct interest in its application to promote sessional employees into the bargaining unit and to have such persons covered by the terms of the Collective Agreement and represented by the Union." In the Cambrian College award (supra) the Board dealt with an issue of a release from sessional employment by the College of the grievors. The Board dealt ~ith the arbitrability of those grievances and found as set out above, but ~hich finding as well indicates that sessional employees'are not employees covered by the bargaining unit. In that case the Union was seeking to have those persons who had been released by the College, to come within the bargaining unit. In the Weatherill decision the Board dealt with a grievance of "the failure of the College to pay sessional employees in accordance ~:~ith the job classification plan." 6 The similar sections of the Collective Agreement is that case currently exists. That Board found that the Union's grievance could not ,arise in any other way and was a proper grievance as "the sessional teachers are not employees ~'lithin the meaning of the Collective Agreement and would have no right to grieve." In that case the Union alleged that by not paying sessional teachers under the classification plan, the College was in violation of Article 3.03 which is the same except as to how these employees are paid. The Board dealt with the Union's argument in that case that in essence sessional employees are persons who work more than 13 hours in a week and are therefore required to be salaried and paid in accordance with the classification plan. The Board rejected that submission and found, "one' of the major premises is that sessional teachers are persons within the meaning of Article 3.03 (a) of the Collective Agreement. In our vie~,~ that premise is not valid. Just as the sessional teachers are employees in the ordinary sense although they are not employees ~-~ithin the meaning of the Collective Agreement or the College's .Collective Bargaining Act so too while they are pe.rsons in the ordinary sense they are not persons to ~-~hom or in respect of ~,~hom the provisions of the Collective Agreement apply. The Union laid much stress on the distinction between 'persons' and 'employees' as those terms are used in the Collective Agreement. ~:!hile both in ordinary language and in law, 'persons' has a broader connotation that "employees" (all employees are persons, but not all persons are employees) that is not say that the use of the broader term was intended to have the effect of expending the obligation of the College under the Collective Agreement to those who are admittedly excluded from the bargaining unit. Such an effect should surely appear from clear language and not from a strained inference from what may have been an imprecise choice of words . . . "Further, the 'parties have in fact dealt expressly with one aspect of the employment of sessional teachers in Appendix III. That deals with the length of their employment and the application of the Collective Agreement to them at a certain point (when.they cease to be sessional). There is no reason then, to consider that the parties intended to deal with the matter of the salary of sessional employees in Article 3.03 or that they intended therein to deal with any persons other than members of the bargaining unit." In the Brent a~ard, the grievance of the Union alleged that the College violated Article 3.03 (a) of the Collective Agreement by not paying sessional Teaching Masters who teach more than 13 hours a week the same rate as it pays regular full time Teaching Masters. Except as to the number of hours involved, that article is the same as in the current agreement. It was ackno~ledged that sessional employees were excluded fron the bargaining unit. The same issue arose in that case and the Board followed the Ueatherill award which it considered to have dealt ~ith the..same issue and with which award that Board agreed. It was stated, "we can see no indication that the parties ever intended to deal with or did deal with the question of salaries for sessional employees in Article III of the Collective Agreement. Therefore, sin~e the sessional employees are not bargaining unit teachers and there is no provision of the Collective Agreement which expressly provides for the salary to be paid to them, we can find no .violation of the Collective Agreement in this case. ~!hile both the Loyalist and Cambrian avJards set out above deal ~lith the substance of the claim in the grievance and ~tere not based on a jurisdictional question, the same issue that arises in the present matter was dealt with by both of those Boards of Arbitration, the significant portions of those awards have been referred to above. Clearly, by the ratio of those a~ards, the subject matter of this grievance being payment for sessional teachers has been held not to be a subject covered by the Collective Agreement. The Brent Board dealt with the allegation that the College was violating Article 3.03 (a) of the Collective Agreement which is in effect the same term of the contract under which the present grievance arose. The conclusion in the Brent award supports'the College's position in the present matter in that as there is no contractual provision covering the claim of the Union, the Board does not have an issue to deal with pursuant to the terms of the Collective Agreement. Uith reference to Article 11.04(d), "the Arbit'ration Board shall not be authorized to alter, modify or am'end any part of the terms of this agreement, nor to make any decision inconsistent therewith, nor to deal with any matter that is not a proper matter for grievance under this agreement . . ." The Board does-not have the authority to deal with the issue raised by th Union in this grievance as there is no provision in the Collective which the Board can interpret or apply, in order to determine whether there was a contravention by the College of this agreement as alleged by the Union. As noted, the Union does have. the right to file a grievance for sessional employees with regard to the administration of the Collective Agreement as it pertains to such persons as they do not have an individual right to grieve under the agreement and being excluded from the bargaining unit, but the dispute raised by the grievance must relate to a provision of the agreement in order for the Board to have the authority under the terms of the agreement to deal ~,~ith a grievance as defined by Article 11.12 (c). The notion of, arbitral deference to awards of other arbitrators ~-~ho haVe dealt with a grievance involving the same issue arising under the same Collective Agreement has been dealt 10 ~th in the cases referred to in the submission by counsel. The principle to be obtained from these awards is that unless such previous awards are found by a subsequent Arbitration Board to be clearly or manifestly wrong, the result should be followed as a matter of good industrial relations policy apart from the application of the principle res judicata. In the Canadian Johns-.Hanville case, the Board stated at page 268, "In a more specific sense, arbitrators are acutely sensitive to the need for consistency and predictability within a particular collective bargaining relationship and are therefore loathe to upset the award of a predecessor board dealing, with an identical issue bet~.~een the same parties unless the predecessor board has been wrong . . . To do otherwise undermines the binding nature of the adjudication, creates uncertainty and encourages resort to arbitration as an alternative to negotiation. Although the doctrine of stare decisis does not apply to labour arbitration, previous awards which have decided the same issue between the parties are, in the absence of an inherent flaw in la~ or reasoning, at least persuasive if not conclusive . . . See also Phillips Cables (supra) at P. 232-233. It is our opinion that the circumstances of the instant ~atter falls ~ithin the principles ennunciated in the above noted a;,~ards concerning the application of prior arbitration awards w~ich deal with the same issue bet~een the parties. The Brent Board approved and followed the I.leatherill award, l-...'e do not take issue ~ith either of those awards but find that in those awards the arbitrators have not only dealt with the same issue as raised by this grievance but have correctly determined that issue on a substantive basis. Having done so, the same result must be applied with regard to the College's objection as to the Board's jurisdiction in the present case as if there is no substantive basis for the issue to be arbitrated as found in the both awards then it follows that this Board does not have an issue before it ~vhich can be determined under the terms of the Collective Agreement and therefore, does not have jurisdiction as the Board could not determine the wages for sessional employees. As in the Brent award the Board could not find a violation of the Collective Agreement similarly in the present matter, there being no provision of the Collective Agreement covering the issue raised by the grievance, this Board has no authority to make any determination of that issue under the Collective Agreement. Accordingly, the Board allows the objection of the College and finds that it does not have jurisdiction to deal with this grievance. These proceedings are therefore terminated. 12 DATED AT OAKVILLE THIS ~Z~~ DA~ OF AUGUST, 1989. H.D. BROWN, CHAIR~IAI'I G.H. METCAI_FE, CY)LLEGE NOM I NEE AUGUST 28, 1989 DISSENTING OPINION: My dissent, stems from the fact, that the award in fact deals with the substance of the grievance as opposed to dealing with the preliminary objection of the employer; which was whether this arbitration board had the jurisdiction to deal with the Grievance. It would seem that this board is taking the position, that since the Brent & Weatherall awards were in essence dealing with the same substantive issue, (ie): "wages of sessional employees", and, that since wages of sessional employees are NOT covered or dealt with in the Collective Agreement; there is NO violation of the Collective Agreement. I don't want to argue the validity of the correctness of the - 2 - Brent or Weatherall Awards. What is important to note, is that, in both instances, each board ruled the grievance was. arbitrable and in fact was a proper grievance. In fact the grievances were heard by each respective board though the ultimate awards of the Brent and Weatherall boards ruled against the Union. This was further substantiated by the Cambrian College and OPSEU Award, Brown- 1987; "the parties have given the right to the Union to file a grievance based on direct difference arising out of the interpretation, application and administration or alleged contravention of the Agreement which would include Appendix III. Clearly, an individual session employee is not entitled to grieve under the Collective Agreement and therefore the second part of Article 11.10 does not apply. The administration of Appendix 111 which may include the interpretation where there is an alleged violation is clearly to us a matter which the Union can raise through a grievance procedure. The Union has a direct interest in its application to promote sessional employees into the bargaining unit and to have such persons covered by the terms of the Collective Agreement and represented by the Union". In which the Brown award clearly upholds the principle that the Union has the right to grieve on any difference arising out of the interpretation, application and administration, or alleged contravention of the Collective Agreement which would include Appendix III. Chairman Brown; clearly states, "the administration of Appendix III which may include the interpretation where there is a alleged violation is clearly to us a matter which the Union can raise through a grievance procedure". In all the 3 (three) above cited cases, Brent, Weatherall and Brown; the question of arbitration is quite clear; yes. The Union can in fact file a grievance and each board upheld this principle. The key point in my dissent, is that this board should follow these principles. The objection of the College should be denied and that the Union should be allowed to file the grievance. That is, what is before this board; 'the right to file the grievance', and 'not.. the substantive issue', of whether sessional employees are covered under the Collective Agreement. It would seem that the board is looking at all issues in total, and NOT separating this from the preliminary objection of whether this board has jurisdiction in this matter. - 4 - In my opinion, I think this board should hear the grievance and then render a decision on the validity of the grievance. Respectfully submitted ~Union No/~nee LAMBTON COLLEGE AND OPSEU - 88C677