HomeMy WebLinkAboutTunnicliffe 91-06-11IN THE MATTER OF AN ARBITRATION
BETWEEN: " ·
NORTHERN COLLEGE
(The Employer)
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF THE GRIEVANCE OF N. TUNNICLIFFE - #90A229
BOARD OF ARBITRATION: Kenneth P. Swan, Chairman
A. Shields, Employer Nominee
Jon McManus, Union Nominee
APPEARANCES:
For the Employer: John Saunders, Counsel
Jim Cotnam, Human Resources Officer
For the Union: Laura Trachuk, Counsel
Richard Mason, Local President
Nan Tunnicliffe, Grievor
Dennis Amendola
A hearing in t~i~a~P-r.~a~:::~,.£d in Timmins, Ontario on
May 18, 1990, at which time the pa~:~s' were agreed that the board
of arbitration had been properly appointed, and that we had
jurisdiction to hear and determine the matter at issue between
them. That matter was put before us on the basis of representative
facts agreed to by the parties, but originally arose from a
grievance of Nan Tunnicliffe representing 17 employees, filed as
Grievance No. 90A229 on April 5, 1989.
The original grievance was in the following terms:
Northern College maintains that Article 8.14(b) refers
to the computing of seniority for positions outside of
the collective agreement and not for positions within the
bargaining unit. (See attached memo). We maintain that
Article 8.14(b) refers to the computing of seniority for
members of the bargaining unit who were originally hired
outside of the collective agreement.
The agreed statement of facts presented by counsel at the
arbitration hearing was as follows:
WHEREAS a grievance dated April 5, 1989, was filed
by Nan Tunnicliffe representing a group of 17 employees
(Appendix A attached) alleging that the College had
incorrectly calculated the seniority of these persons;
AND WHEREAS the matter was not settled through the
grievance procedure;
The parties are now agreed that the following are
representative facts to be considered for this arbitra-
tion.
(1) The parties are signatories to collective agreements
dating back prior to 1981.
(2) Attached to this Agreed Statement of Fact are the
Collective Agreements between the College and the
Union.
(?) ~ -~!a~ne.~e'~kbert was employed by the College as a
~rtia~%oad teacher from 87-09-08 to 88-05-06. On
88-09-07 she commenced employment with the College
as a rm. 1 time teaching master. Currently, the
College credits her seniority from 88-09-07.
(4) Marilyn Trodd was employed by the College as a part
time teacher from 85-10-22 to 86-06-16. On 87-07-
27 she commenced employment with the College as a
full time teaching master. Currently, the College
credits her seniority from 87-07-27.
(5) In calculating the seniority of full time teaching
masters the College credits those persons who were
previously employed as sessional employees with the
"seniority" which they earned as such pursuant to
Appendix III of the Collective Agreement.
(6) In January of each year, the College posts a list
showing the seniority of each employee. When
posting this list, the College has never knowingly
credited full time teaching masters with seniority
based on their previous teaching as part time or
partial load teachers.
(7) As far as counsel are aware, the College's past
practice regarding this matter, until the present
grievance, has only been challenged by the Union in
the following cases:
Fanshawe College - Brunner - Oct. 19/83
Algonquin College - Kates - June 22/84
St. Lawrence College - Swan - Jan. 19/89
Sheridan College - Weatherill - May 17/82
The collective agreement between the present parties
contemplates five different kinds of teaching appointments, three
of which are included in the bargaining unit, and two of which,
while they are alluded to in the collective agreement, are excluded
from the bargaining unit. Inside the bargaining unit are found
full-time continuing teaching appointments of two kinds, at first
on a probationary basis, and subsequently on a seniority basis once
the probationary period is completed. Also included are partial
Load teaChing~.apP~±ntments, which are defined as appointments
invol%ing%~each~ng of more than six hours per week and up to and
including twe~, hours per week on a regular basis. Partial load
teachers are treated differently from full-time teachers, but they
are still granted bargaining unit membership.
Outside the bargaining unit are found part-time teaching
appointments, involving six hours or less of teaching per week, and
sessional appointments, which are full-time appointments of not
more than twelve months duration in any twenty-four month period;
these are non-continuous appointments, which may become regular
full-time appointments if they exceed the maximum length specified.
The collective agreement deals with seniority for these
different kinds of appointments in a diffuse and rather unsatisfac-
tory manner. The provisions of the collective agreement which are
essential to the resolution of the present grievance are as
follows:
Article 1
RECOGNITION
1.01 The Union is recognized as the exclusiVe
collective bargaining agency for all academic employees
of the Colleges engaged as teachers (including teachers
of Physical Education), counsellors a~d librarians, all
as more particularly set out in Appendix I hereto save
above- the rank of Chairmen, Department Heads and
Directors, 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 include persons who
teach six hours per week or less."
NOTE B: "Sessional in this context shall mean an
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/~app0intment of not more than twelve months duration in
any twenty-four month period·"
Article 3
SALARIES
3.03 (1) The Salary scales as setout 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.
3.03 (2) Persons who teach over six (6) and up to and
including twelve (12) hours per week on a regular basis
shall be referred to as "partial-load" employees and
shall not receive salary, vacations, holidays or fringe
benefits (except for coverage of Workers' Compensation
and liability insurance) under this Memorandum and
Appendix I but shall be paid for the performance of each
teaching hour at an hourly rate within the range of
hourly rates set out in Appendix II and in accordance
with the other provisions of Appendix II.
Article 8
SENIORITY
8.01(a) (i) A full-time employee'will be on'probation
until the completion of the probationary period which
shall be two (2) years' continuous employment.
(ii) A full-time employee hired after September
1, 1981, who has completed a probationary period at
another Ontario College of Applied Arts and Technology
or who holds a valid Ontario Teacher's Certificate and
who has one year or more of teaching experience in
Ontario will be on probation until the completion of the
probationary period which shall be one year's continuous
employment.
(d) UpOn the completion of the employee's
probationary period, a full-time employee shall be
credited with two (2) years' seniority if treated under
8.01(a) (i) or one (1) year's seniority if treated under
8.01(a)(ii). An employee who commenced full-time
employment with the College directly from the College's
predecessor educational institutions shall be credited
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for the purpose of this Article with seniority equal to
the employee's continuous service in such predecessor
institution. The list of predecessor educational
institutions referred to herein is attached as Appendix
VII of the Collective Agreement·
8.05 When the College decides to lay off or to
reduce the number of full-time employees who have
completed the probationary period or transfer involuntar-
ily full-time employees who have completed the probation-
ary period to another position from that previously held
as a result of such lay-off or reduction of employees,
the following placement and displacement provisions shall
apply to full-time employees so affected. Where an
employee has the competence, skill and experience to
fulfil the requirements of the full-time position
concerned, seniority shall apply consistent with the
following:
(a) an employee will be reassigned within the
College to a vacant full-time position in lieu of being
laid off if the employee has the competence, skill and
experience to perform the requirements of a vacant
position.
(b) failing placement under paragraph (a) above,
such employee shall be reassigned to displace another
full-time employee in the same classification provided
that:
(i) the displacing employee has the competence,
skill, and experience to fulfil the require-
ments of the position concerned;
(ii) the employee being displaced has lesser
seniority with the College.
(c) failing placement under paragraph (b) above,
such employee shall be re-assigned to displace a full-
time employee in another classification upon acceptance
of the identical employment conditions as the classifica-
tion concerned provided that:
(i) the displacing employee has the competence,
skill, and experience to fulfil the reqUire-
ments of the position concerned;
(ii) the employee being displaced has lesser
seniority with the College.
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(d) failing placement under paragraph (c) above,
such employee shall be re-assigned to displace a partial-
load employee (as referred to in Appendix II) or a part-
time employee upon acceptance of the identical employment
conditions as the partial-load or part-time employee
concerned.providedthat:
(i) the displacing employee has the competence,
skill, and experience to fulfil the require-
ments of the position concerned;
(ii) the partial-load or part~time employee being
displaced has lesser months of service with the
College as determined in both Appendix II and
IV than such displacing employee's months of
seniority.
(e) failing placement under paragraph (d) above,
such employee shall be reassigned to displace a sessional
employee (who has more than ninety (90) days remaining
on the sessional employee's term appointment) for the
remainder of such sessional employee's appointment
provided that the displacing employee has the competence,
skill, and experience to fulfil the requirements of the
position concerned. Such a reassigned employee shall be
· laid off without further notice at the termination of the
sessional appointment.
8.07 (a) In January of each year, the College shall
prepare and post lists as follows:
(i) a seniority list of all regular full-time
employees showing the employee's name,
classification, division or department, and
seniority as determined pursuant to this
Article.
(ii) a list of all probationary employees showing
the employee's name, division or department,
date of hire, and date of completion of the
probationary period.
(iii) a seniority list of all partial-load employees
employed since the previous January showing the
employee's name, division or department, and
accumulated service to date.
Such lists shall also be sent to the Union Local
President.
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8 14 (a) A person who has been in a position
covered by the Agreement and has been or is asslgneu
to and including August 31, 1978, a position with the
College outside the Agreement will be credited with and
continue to accumulate seniority for the purpose of this
Agreement while in the employ of the College.
(b) Employment with the College in a position
ordinarily outside the bargaining unit in the course of
which teaching, counselling or library assignments have
been undertaken in the College (other than on an unusual
or isolated basis) shall count in computing seniority of
persons hired by the College in positions outside the
Agreement· Such seniority shall be credited in the
proportion that the teaching, counselling or library
assignment is of a full-time assignment based on one-
quarter, one-half or three-quarters of a month of
seniority for each full month's employment.
(c) A person who is covered by the Agreement and
is assigned a position with the College outside the
Agreement after August 31, 1978, will be credited with
and maintain seniority as at the date of assignment for
six (6) years thereafter while in the employ of the
College.
APPENDIX II
PARTIAL-LOAD EMPLOYEES
2. It is agreed that Article $ has no application
to partial-load teachers except as referred to in Section
8.05(d) and Section 8.15(b). Such partial-load teachers
may be released upon two (2) weeks' written notice and
shall resign by giving two (2) weeks' written notice.
3. For the purpose of determining the service of
a partial-load teacher under Section 8.05(d) a partial-
load teacher will be entitled to credi~ for service from
September l, 1971 (but not earlier) on the basis of one-
half (1/2) month's credit for each full month of service
up to January 1, 1977 and thereafter on the basis of one-
half (1/2) month's credit for each calendar month in
which the employee teaches thirty (30) hours or more.
*It is understood that some variation of this formula
will be required to take into account the results of the
deliberations of the task force and/or arbitration board
concerning the"post-secondary/non-post-secondary"issue,
referred to in a letter of understanding attached to this
agreement on page 89.
3. (Effective September 1, 1988) For thc,
of determining the service of a partial-load teacn~r~~?,
under Section 8.05(d) and for the purpose of determining
progression through the grid 10 months of on-the-job
experience will entitle the employee to one year of
service and to progress one step on the grid·
On-the-job experience will be calculated as
follows: A partial-load teacher will be entitled to
credit for service from September 1, 1971 (but not
earlier) on the basis of one-half (1/2) month's credit
for each full month of service up to January 1, 1977 and
thereafter on the basis of one-half (1/2) month's credit
for each calendar month in which the employee teaches
thirty (30) hours or more·
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·
(c) If 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 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.
APPENDIX IV
PART-TIME SERVICE
In the administration Section 8.05(d) and for that
purpose only, a part-time employee shall be considered
to have service based on one-quarter (1/4) month's credit
respectively for each full month of employment with the
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College. ·
As will be obvious from the agreed statement of
the issue between the parties is whether service as a partial'load
or part-time teacher prior to appointment as a full-time teacher
should count in some way toward the seniority with which the
employee is to be credited as a full-time teacher. It will be seen
that the collective agreement is not particularly forthcoming on
this issue, and it is therefore necessary to deal with the present
dispute on the basis of what inferences may be drawn from the
language which the parties have chosen to express their intention.
As set out in the agreed statement of facts, issues along
these lines have arisen in only four previous awards of arbitrators
under this collective agreement or one of its predecessors. It is
of value to review in some detail how those four awards have dealt
with the matter which is now before us.
In Re Sheridan College and Ontario Public Service
Employees Union (Smith), unreported, May 17, 1982 (Weatherill) t
the board of arbitration was faced with the question of the
seniority of an academic employee who had been given a number of
appointments, of varying kinds and involving fluctuating teaching
loads, most of which were not specified by the College as fitting
within one of the five particular classes of academic employment
described above. At issue was whether a period of employment which
the majority of the board of arbitration identified as partial-
load employment should be counted toward the grievor's probationary
period. After quoting paragraph 3 of Appendix II, which was
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identical to the pre-September ~i~8~?~9~S$~±n the current
collective agreement as quoted above, exc~p't.~f~r'the note relating
to the "post-secondary/non-post-secondary" issue, the board came
to the following conclusion on page 10:
This provision, which has been in the collective
agreements since 1976, and which is roughly analogous to
a provision in the 1975 agreement providing for a four-
year probationary period for those who would now be
called "partial-load" employees, allows for a fair and
logical determination of the proper seniority date of an
employee who, like the grievor, has, in a number of years
of continuous employment, worked on both a full-time and
a partial-load basis. The twenty-four month probationary
period may be made up of twenty-four months of full-time
employment, or forty-eight months of partial-load
employment. Partial-load employment counts half as much
as full-time employment.
In Re Fanshawe College of ADplied Arts and Technology and
Ontario Public Service Employees Union (Gurofskv), unreported,
October 19, 1983 (Brunner), a board of arbitration dealt with the
ability of employees whose status is part-time, sessional or
partial-load to earn seniority for subsequent, full-time employment.
At pp. 7-8 and 10-11, the board made the following observations
which are here relevant:
Under the Collective Agreement ~ated October 8,
1981, and subject to what will be said in a moment, only
a full time employee in the Academic Staff bargaining
unit accumulates seniority under Article 8. Part time
employees, that is those who teach six hours or less per
week, are entitled to be credited with "service" in
accordance with the formula set out in Appendix IV, but
only for the purposes of Section 8.05(d) in the case of
a lay-off.
A "sessional" employee as defined by paragraph l(a)
of Appendix III does not have seniority while he occupies
such status but is entitled to be credited with seniority
if he continue~...~:im>.~'~:~]~.~{:~ employ after the twelve
month period ~pe~:fi~-~Y!i~ paragraph·
"Partial-load" empi~,e'~'.s, that is those whp teach
more than six hours and up to and including thirteen
hours per week on a regular basis, are excluded from the
seniority provisions of-Article 8 except in cases of lay-
off (Section 8.05(d) and recalls (Section 8.15(b)) in
which event they are entitled to a credit for "service"
as provided by paragraph 3 of Appendix II.
As we have stated, his "service" either as a
"partial load" or "part time" employee is only relevant
and material for the purposes of lay-off and recall under
Sections 8.05(d) and $.15(b). Once an employee has
gained full time status within the bargaining unit and
has completed his probationary period and been credited
with two years of seniority for this purpose, his
"service" as a part time and partial load employee has
no relevance. A close reading of Sections 8.05(d) and
8.15(b) make this quite clear.
The College took the position that a full time
employee is entitled to be credited with seniority only
from the commencement of his employment as a full time
member of the Academic Staff bargaining unit as pre-
scribed by Section 8.01(d). Thereafter seniority
continues to accumulate while the employee is in the
active employ of the College or on a leave of absence as
catalogued by Section 8.11.
In our opinion the Employer's position in this
respect is correct as the plain and unambiguous words in
the two Sections to which we have referred make clear.
If one could look back at the Collective Agreements dated
September 17, 1975 and February 15, 1977, which were in
force during the grievor's probationary period, the same
result would inevitably follow. The only material
difference between Section 8 of the Agreement of October
8, 1981, and the one dated September 17, 1975, is that
the concept of "service" prevailed instead of that of
seniority. Other provisions such as those that dealt
with the probationary period of "partial load" employees
are not material for the purposes of this grievance.
It will be observed that the board of arbitration in Re Fanshawe
College reached the opposite conclusion from that reached in Re
Sheridan Colleqe, bu~i~~'i~l~.~!anation as to why it had
chosen to depart from the ea~!~i~'.~.ward. It is clear, however,
that the earlier award was before th~ Re Fanshawe College arbitra-
tion, since it is referred to on page 15 in respect of a different
issue.
Subsequently, however, the matter arose again in Re
Algonquin College and Ontario Public Service Employees Union
(Wilson), unreported, June 22, 1984 (Kates). In this case, after
reviewing both the Re Sheridan Colleqe case and the Re Fanshawe
College case, the board of arbitration chose between the two
alternative interpretations as follows, at pp. 12-13:
Counsel for the employer submitted that the
Arbitration Board [in Re Sheridan College] in relying
upon Section 3 of Appendix II for the purpose of
attributing seniority for the grievor's past service as
a partial load employee was clearly and patently wrong.
Section 2 of Appendix II plainly restricts the applica-
tion of seniority accumulated by a partial load employee
to Article 8.05(d). In the event of redundancy the
partial load employee does enjoy some protection based
on his length of service. In that event, and as Section
3 of Appendix II clearly contemplates, a formula is
provided for calculating a partial load employee's length
of service. That is to say because of the uneven nature
of the partial load employee's teaching schedule a
formula was necessary in order to attribute appropriate
credit for past service. In having regard to the
introductory words in Section 3, the e~zployer reiterated
the proposition that it was never intended that that
formula be applied to the seniority provisions of ArtiCle
8 other than Article 8.05(d).
In reaching our conclusion on this aspect of the
case this Board simply cannot add more to the argument
advanced by Counsel for the employer. We do not
appreciate how the Arbitration Board in the Sheridan
College Case was warranted in applying the formula
contained in Section 3 of Appendix II to a partial load
employee for purposes of crediting the grievor with
seniority as a full time employee under Article 8.01
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wher~,,thesla.n~a~o~f both Sections 2 and 3 of Appendix
II 2~e~.~ic~h~.'ia~P'~ication of Article 8 of the collec-
tive agree~m~4~o lay off situations under Article
8.05(d). Nor ~ll it serve any useful purpose on our
part to speculate as to why, on the facts adduced, the
Board would treat the relevant provisions of Appendix II
in the manner described. It merely Suffices for our
purposes to state for the foregoing reasons that we do
not agree that the application of the formula contained
in Section 3 of Appendix'II was intended for the purposes
urged upon us by the trade union.
Rather, the Board is satisfied that, because the
grievor was at all material times prior to January 3,
1983, a partial load employee, his seniority as a full
time employee upon completion of his probationary period
of one year's continuous employment ran from the date of
his appointment as a full time employee. In other words,
we adopt the position urged upon us by the College and
incorporate as our own the reasoning expressed in ~he
Fanshawe College case (supra). That is to say, owing to
the grievor's status as a partial load employee he was
not entitled to any credit for his past service in that
capacity under Article 8.01(a) (ii) and 8.01(d) of the
collective agreement after he was appointed a full time
employee on January 3, 1983.
Finally, the issue is considered once again in Re St.
Lawrence College and Ontario Public Service Employees' Union
.(Abel), unreported, January 19, 1989 (Swan), a decision written by
the present chairman. In that award, the following appears at pp.
7-9:
We turn first to the question of whether the grievor
is entitled to count any of his periods of part-time or
partial-load employment prior to January 28, 1985. This
issue divides into two separate considerations. During
1984, the grievor's employment always fell below the 13
hour per week limit for partial-load employees, but
during the month of January, because of additional
assignments, his workload in the third week rose to 28
hours, while his workload in the fourth week was at 16
hours. Immediately after that last week, he began the
sessional appointment from which time his accepted
service counts.
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...... . ..... The Union argues first that the provisions of
~ApP~Udix II, paragraph 3 entitle the grievor to count his
employment from September to December at
6ne-half month's credit for each of those months. The
ar?~ment is based first'on a comparison with Appendix IV,
which specifies that part-time employees are considered
to accrue service credits "in the administration of
Section 8.05(d) and for that purpose only", and Appendix
II, paragraphs 2 and 3 in which no such restrictive
language as "for that purpose only" is found. In our
view, however, the effect of reading paragraph 2 of
Appendix II, which provides that Article 8 has no
application to partial-load teachers except for 8.05(d)
and 8.15(b), combined with the service calculation set
out in paragraph 3 of that Appendix, was clearly intended
to achieve the same result as the wording used in
Appendix IV. Given that the probationary period
calculation is found in Article 8.01, and that Article
8 has no application to partial-load teachers except as
specified, we are of the view that no credit is given for
partial-load service towards the probationary period.
The Union also refers, however, to Re Sheridan
College and ~Ontario Public Service Employees Union
(Smith), unreported, May 17, 1982 (Weatherill). This
suggests that partial-load service may be counted at the
half-time basis specified in Appendix II, paragraph 3 for
the purposes of determining the position on a seniority
list of an employee who has already completed a proba-
tionary period.
The Employer argues that this case is simply wrong,
but in our view it may readily be distinguished in any
~vent from the matter before us. In that case, there is
no discussion of counting time as a partial-load employee
toward the completion of a probationary period. The
concept of "seniority" appears throughout clause 8.05,
and it is entirely possible that the board in the
Sheridan College (Smith) case was considering it in that
context. In any event, there is nothing in the case to
suggest that the question now before us was raised before
that board and considered before they came to the
conclusion which they did. In our view, the clear words
of Appendix II mean that the grievor is not entitled to
count any of his partial-load service toward his
probationary period, whether or not such service may be
used to establish seniority once the probation is
completed.
Both parties made substantial arguments to us on the
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~.a~sis~-iof res judicata, but we are of the view that the present
~ ~i~t~%ation is better dealt with on its merits than on the basis of
s¢~ structure of deference to prior awards between the parties.
That view is particularly compelling when one considers how patchy
the history of interpretation of the provisions relevant to this
issue has been. Of the four arbitrations on this issue, only Re
Sheridan College has concluded that service as a partial-load
teacher can count toward seniority in the full-time bargaining
unit. Of the three cases going the opposite way, one does so
without reference to the contrary view taken in Re Sheridan
College, one finds Re Sheridan College to be "clearly and patently
wrong", and the third attempts to distinguish Re Sheridan College
on a basis which, even to the author of the majority award in that
decision, does not now seem particularly compelling. Particularly
as the Union has advanced two arguments not canvassed in the
earlier awards, we think it is appropriate to deal with'the matter
as if it were before us anew.
The Union argues that, while clause 8.01(d) on its face
appears to provide all of the seniority entitlement for full-time
employees who complete their probationary period, it does not
actually exclude credit for previous teaching experience, and in
fact previous sessional appointments are counted as a part of the
probationary period. While the collective agreement is entirely
silent on the question of partial-load and part-time seniority
'credits being calculated for full-time seniority, the Union argues
that an inference can reasonably be drawn from clause 8.05 that the
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· ..... .~parti~s intended such credit to be given.
~i~,~i~i~.~,~i~ In the Union's argument, because part-time and partial-
L,~ad .employees may assert their length of service with the College
against the seniority of a full-time employee who is attempting to
bump them under one of the subclauses of clause 8.05, it must not
have been intended that partial-load or part-time employees who
subsequently accept a full-time appointment have to abandon all of
their service with the College, should they subsequently find
themselves in a lay-off position. In the Union's submission, it
would be unfair to strip such employees of all such protection
based upon service at the same time as giving them a full-time
appointment on a continuing basis.
In our view, however, this inference is not readily drawn
, from the entire structure of Article 8. An employee who is given
a full-time continuing appointment in the form of a probationary
appointment, unless clause 8.01 is interpreted so that service as
'a partial-load or part-time employee can, if of sufficient
duration, entirely negate the probationary period, will apparently
automatically lose all acquired service credits, and Will have to
wait until the termination of the probationary period in order to
achieve any seniority status at allo During the probationary
period, the employee is entitled only to notice of release, and may
not even grieve that release. Clause 8.05 applies only to the
reduction and lay-off of full-time employees who have completed the
probationary period; until that period has been completed, an
employee has no rights whatsoever under clause 8.05 regardless of
how much past College service as a partial-load or part-time
employee he or she may have. While this is not conclusive of
anything, it does indicate that the parties seem to have intended
for there to be a firm distinction drawn between the seniority of
full-time continuing employees, and the service, which is expressly
stated in Appendices II and IV to be for very limited purposes, of
partial-load and part-time employees.
The Union also asserts that clause 8.14(b) resolves this
matter. In the Union's submission, the language of that provision
is sufficient to mean that part-time and partial-load positions
"shall count'in computing seniority". The difficulty we have is
that, in context, all of clause 8.14 would appear to be designed
to apply to persons who are hired on a full-time basis at the
College, but a part of whose work assignment includes teaching,
counselling or library assignments. When read with subclauses (a)
and (c), this appears to be aimed at, for example, persons who are
appointed as "Chairmen, Department Heads and Directors", or persons
above those ranks, who are described in clause 1.01 as excluded
from the academic bargaining-unit, although the language of that
provision seems to contemplate that they might nevertheless be
engaged as teachers, counsellors or librarians.
In our view, the compelling words of clause 8.14(b) are
that the part-time teaching assignments contemplated "shall count
in computing seniority of persons hired by the College in positions
outside the Aqreement". While this language, on its face, might
include partial-load and part-time teachers, such an interpretation
faces the difficulty that Appendix II, paragraph 2
Article 8 has no application to partial-load teachers except as
referred to in section 8.05(d) and 8.15(b). Similarly, Appendix
IV specifies that the service calculation for part-time employees
is in relation to the administration of section 8.05(d) and for
that purpose only, which seems to us to be essentially to the same
effect.
In our view, while we might have wished for clearer
language to interpret, the best conclusion to be drawn is that the
parties did not intend partial-load or part-time service to be
counted either toward the probationary period once an employee has
been given a full-time continuing appointment, or toward the
seniority of that employee once the probationary period has been
completed in accordance with clause 8.01. It follows, therefore,
that neither of the two fact situations described in the agreed
statement of facts, paragraphs 3 and 4, discloses a breach of the
collective agreement.
Because we have been asked to deal with this matter on
the basis of an agreed statement of facts, and do not have the
grievance itself directly before us, we simply make a declaration
in those terms, and remain seized of this matter in order deal wfth
any difficulties which may arise in applying it to all of those
affected by the group grievance filed on April 5, 1989.
Ken~, Chairman
I concur "A. Shields"
A. Shields, Employer Nominee
I dissent "Jon McManus"
Jon McManus, Union Nominee