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HomeMy WebLinkAboutUnion 98-10-29' , L, IN THE MATTER OF AN ARBITRATION BETWEEN THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND ITS LOCAL 560 ("THE UNION") AND SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY ("THE COLLEGE" OR "THE EMPLOYER") Re: a "union grievance" concerning the scope of the bargaining unit BEFORE: R.O. MacDowell (Chair) Sheril Murray (Union Nominee) Peter Hetz (College Nominee) APPEARANCES FOR THE UNION' Tim Banasik (representative) Josef Stavroff Ted Montgomery Larry Olive FOR THE COLLEGE: Sarah Eves (Counsel) Mel Fogel Denise Chan Judith Linkilde A hearing in this matter was held in Toronto, on May 12, 1998. AWARD I - What this case is about - in general This is a "union grievance" that was filed pursuant to article 32.10 of the collective agreement. The grievance is dated October 21, 1996, and reads this way: The College is in violation of Article I of the Collective Agreement in that those persons teaching in the introductory microcomputer course, ICA 001, have been improperly excluded from the bargaining unit. Article 1 of the collective agreement provides: 1.01 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 Article 14, Salaries, except for those listed below: (i) Chairs, Department Heads and Directors, (ii) persons above the rank of Chair, Department Head or Director, (iii) persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, (iv) other persons excluded by the legislation, and (v) 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. (Emphasis added) NOTE B: Sessional in this context shall mean an appointment of not more than 12 months duration in any 24 month period. The union asserts that, in the late summer of 1996, the College created a new position called "lab monitor", then hired at least 14 new employees to work as "lab monitors". The union says that these new employees were engaged in "teachin.cl functions", and that they therefore fall within the ambit of article I of the collective agreement. However the College has refused to apply the collective agreement to these new employees. Accordingly, the union seeks a declaration that the College has breached the collective agreement, together with certain ancillary relief that need not be spelled out here. The College replies that the individuals in question are not "teachers" and are not engaged in "teachin.q functions"; so that, "on the facts", the lab monitors cannot be covered by the terms of the "academic" collective agreement. Indeed, as we understand it, the College says that these individuals are not covered by any collective agreement at all. The College further contends that this particular grievance cannot be dealt with "on its merits", because it is not a proper "union grievance" and it was not filed within the mandatory time limits set out in article 32.10 of the agreement. In the College's submission, the form of the grievance is flawed, and it was not filed in a timely manner. For both reasons, this particular grievance is not "arbitrable". Article 32.10, to which both parties refer, reads this way: 32.10. The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Union Local President to the Director of Personnel or as designated by the College, within 20 days following the expiration of the 20 days from the occurrence or origination of the circumstances giving rise to the grievance commencing at Step One .... The College says that, on the facts, there has been no breach of the collective agreement; but even if there were such breach, that is not something which the union can complain about on its own, nor is it something that an arbitrator can address unless the grievance has been filed in a timely fashion. A hearing in this matter took place in Toronto, on May 12, 1998. The parties were agreed that this board of arbitration is properly constituted under the terms of the collective agreement, and that we have jurisdiction to hear and determine the matters in dispute between them. The parties were further agreed that they would confine their arguments to the College's challenge to the "form" and "timeliness" of the grievance - that is, to the two "arbitrability questions" identified above. However, before looking at these questions of "arbitrability", it may be useful to briefly sketch in some background, and say something about the legal framework within which the parties' rights must be determined. The "facts" set out below do not seem to be substantially in dispute. However, as will be seen later, the parties have a very different view as to how those facts should be characterized. II- Some back.qround "ICA-001" is an introductory computer course that is mandatorY for all first year students. It was first offered in September 1996 and is designed to introduce students to popular programs such as "Word" and "Excel". The course provides some. background on how to use these well-known programs, as well as some basic training on the how to use E-Mail and the Internet. The instructional material for ICA-001 is prepared by the academic staff and is made available to students either "on-line" at the College, or in an "interactive" CD ROM/disk package that students can use at home. Once the students have purchased this package, the course material is largely "self-taught" - which is to say: . students are expected to work through the subject areas on their own time and at their own paCe, using the computer itself. They can work on the computer at the College, or they can use their own computers at home. Each student is given two hours of College "lab time" in order to 4 guarantee computer access. However, the College says that, except for certain "tests" (that are done at the College "on-line"), students may not need to attend these "labs" at all. If the students have a home computer with a modem, an Internet link, and a CD ROM drive, they can work on their own, and may not need to spend much time in the lab. The lab is largely optional, and is certainly not a pivotal part of the learning process. Nevertheless, it is the operation of these labs that is the focus of the union's concern. The union says that the lab monitors are not just providing "technical support"; they are, in effect, "teachers" or "tutors", who help the students work through ' the interactive tutorial package, and even mark a couple of the tests. In the union's submission, it is no accident that the lab monitors are all "coop students" from the · computer studies program. The union says that these individuals were hired precisely because they have specialized computer training that they are expected to use when guiding new students through the introductory computer course; moreover, the lab monitors are assigned to these labs because in an introductory course, the students cannot be expected to know how to operate the unfamiliar hardware or software, and' cannot be left on their own. In the union's submission the lab monitors do much more than "monitor" or "oversee" the activities of students in the lab. They "teach" these novices computer basics - which is one of the objectives of the course itself. In the union's view, that ( makes the lab monitors "instructors" as that term is defined at page 146 of the collective agreement. In the union's submission the lab monitors are "employees" who fall within the ambit of Article 1.01 of the academic collective agreement: Article 1.01 and the "instructor definition" have to be read together. The College concedes that the lab monitors "roam the room" and help students who are having difficulty with the equipment, the software, the passwords and so on. However, the College takes a very different view of the facts. In the College's opinion, (as evidenced by exhibit 3) "...There are no group sessions nor is there any teachin.q in the labs ..... ". The lab monitors are not "teachers" or "instructors" within the meaning or scope of the academic collective agreement. This perspective is also articulated in the College's step two reply to the grievance, (dated December 16, 1996) which reads, in part: "Without prejudice to the College's position concerning the time limits [there was at that stage no quarrel with the form of the grievance] the College's position is that as the monitoring of labs does not involve teaching, and as the core or l~rime functions of these students does not directly involve the teaching of course curriculum or course content, these persons are not improperly excluded from the bargaining unit" (emphasis added) From the College's point of view, what the lab monitors "d_9_o" is not "teaching" - or, more accurately, is not a bundle of functions which brings the lab monitors within the scope clause or the definitions found in the academic collective agreement. 6 It remains to be seen how much dispute there is about what the lab monitors actually d._9_o from day to day. We would have to hear the parties' evidence to make any final judgement about that. However, whether or not there is any controversy about what the lab monitor d._0_o, it is evident that there is a real dispute about how the lab monitors' functions should be characterized for collective agreement purposes - particularly in light of language of article 1 and the definition of "instructor" found at page 146. There may also be a dispute about the volume of the activities that might arguably be characterized as "teachin.q" within the meaning of the collective agreement. That is what we presume lies at the heart of the College's reference in its step 2 reply to the "core" or "prime" functions of the job. Implicit in that language is the notion that "incidental" tutoring or teaching functions "may not count" if the employee's "primary" duties entail something else. And, of course, given the limiting language in Note A to article 1, it may be important to determine the actual volume of those activities arguably characterized as "teaching", as well as any variation of that volume. That said, there is no real dispute that lab monitors are "employees" of the College. Their standard' hiring letter (exhibit 13) begins with the following paragraph · "It is with great pleasure that I welcome you to the ICA001 team. You will be working for Harvey Brodhecker, Acting Chair, School of Business Management, and you will be at the [location] campus. Maps will be supplied to the campus on day one. You Will be working 37.5 hours per week and earning $13.00/hour. Schedules have not been finalized yet, but your hours will run from 8.00 a.m. to 6.00 p.m. depending on lab times..." The letter goes on to say that the new employees' "first day of employment will be August 26", and that the last week of August will be devoted to organization, orientation, and "training on working with and tutoring students". The actual work in the labs begins in September, when the students return to school and begin their course work. As best we can determine from the submissions before us, no one alerted the union to the fact that these new employees had been hired. Nor have their names ever been included on the seniority lists that the College must provide under article 27.04 of the agreement. Similarly, under article 27.12 of the collective agreement, the College is also required, in January, in September and in May, to · "notify the Union 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." But the names of the lab monitors have never been included on that list of new personnel. Nor is there any indication that the College has ever provided the lab monitors with a copy of the collective agreement, or given them the names and addresses of the local union executive - as it would be required to do by article 3.01 of the agreement, if the agreement in fact applied to lab monitors. The College has always taken the position that the lab monitors were not covered by the agreement, and its actions have always been consistent with that premise. There is no contrary practice. The grievance that is now before us is dated October 21, 1996, and was filed with the College on or about that date (i.e. about 6-7 weeks after the start of the school year). The College's replies are dated November 13, 1996 and December 16, 1996. Both of these responses challenge the timeliness of the grievance; so, the timeliness objection can come as no surprise. However, there was no challenge to the "form" of the grievance (i.e. that it should not have been filed as a "union grievance") until March 11, 1998 - which was after the arbitration board had been constituted and about two months before the arbitration hearing took place. Accordingly,.-wvhile the challenge to the form of the grievance was not a complete surprise either, it did not surface until 16 months after the grievance was received - well after the completion of the grievance procedure, after the referral to arbitration, and after the arbitration board was established to hear the matter. An Aside on the legislative context - the Colleges Collective Bar.qainin.q Act The collective agreement under review does not exist in a legal vacuum. It draws its essence from the Colle.qes Collective Barqaininq Act ("the CCBA" or "the Act"); and the form of the agreement must be, congruent with that statutory scheme. Indeed, Article 1.01 - which is the foundation for the union's grievance in this case - is not the product of "free collective bargaining" at all. Its terms are mandated by the statute itself, because the statute provides that the collective agreement must have a clause like article 1.01, covering the group of employees to which article 1.01 refers. Section 2 of the CCBA says that the statute "applies to all collective negotiations concerning terms and conditions of employment of employees"; and further that "no such collective negotiations shall be carried on except in acco. rdance with this Act". The term "employee" means "a person employed by a board of governors of a college of applied arts and technology in a position or classification within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2". Schedule 1 to the CCBA defines the "academic" bargaining unit and mirrors Article 1 of the collective agreement before us. Schedule 2 defines the "support staff" bargaining unit. The definition of "bargaining unit" and "employee" are intertwined, in a regulatory scheme that envisages two bargaining units: "academic" and "support". Pursuant to section 67 of the CCBA, "the bar.qainin.q units set out in the Schedules [to the Act] are the units for the purpose of collective bargaining", and, under section 1 of the CCBA, the term "bar. qainin~l uni¢' means "the academic staff bargaining l0 unit of employees or the support staff bargaining unit of employees set out in Schedule 1 and 2". The statute therefore specifies the persons whom the union represents, as well as the persons to whom the collective agreement must apply. To complete the picture, section 52 of the CCBA says that "every agreement shall be deemed to provide that the employee organization that is a party thereto is recognized as the exclusive bargaining agent for the bargaining unit to which the agreement applies". There is deemed recognition for the bargaining units defined in schedules 1 and 2 (i.e whether or not the recognition clause that the parties actually negotiate is clear or complete). Section 51 of the statute then makes that agreement (presumably including any elements of "deemed recognition")"binding upon the Council [of Regents] the employers [the individual colleges] and the employee organization that is a party to it [OPSEU], and on the employees in the bar. qainin.q unit covered by the agreement". In summary: the agreement applies to "schedule 1 people", the union is entitled to represent "schedule 1 people", and in fact, under section 76 of the Act, the union is legally obliged to represent "schedule 1 people", whether or not they are union members, and whether or not the collective agreement language is unclear in some respects. Similarly, "schedule 1 people" are deemed to be covered by the collective agreement, and the agreement - including any "deemed" portions - is binding on the College. Given the structure of the statute, it is not at all clear how the parties could lawfully construct a collective agreement that did not apply to the statutorily prescribed bargaining units, or that could lawfully exclude individuals who otherwise meet the wording of Schedule 1 or Schedule 2. Nor is it evident how the agreement could relieve the union of its statutory obligation to represent these individuals. It is not open to the parties to depart from the statutory norms; moreover, that is not only so as a matter of general law (see for example, Board of Education for Etobicoke [1973] 10.R. 437); but is made explicit by section 48(2) of the CCBA which provides: "Where a conflict appears between any provision of any agreement and any provision of any legislation, the provision of the legislation prevails". The statute itself makes it clear that it is not open to the parties to negotiate a provision which collides with or purportedly overrides the statutory scheme; and against that background, it is doubtful whether a provision or practice (let alone one,party's assertion - which is what we have here) could have that result. On the other hand, the statute also recognizes that there may be a dispute about whether someone does or does not fall within one or other of the bargaining units set out in Schedule 1 or Schedule 2 - which is to say, whether someone is or is not an "employee" as that term is defined in Section 1 of the CCBA (again, see the definitions reproduced above). To cope with that problem, section 81 of the CCBA reads this way: If in the course of bargaining for an agreement or during the operation of an agreement a question arises as to whether a person is an employee .......... the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes" And to reiterate: the term "employee" is defined as a person employed in one or other of the bargaining units set out in Schedules I and 2 to the CCBA.. We will return later to how the structure of the Act may bear upon the College's argument that the union has no right to file a grievance of the kind now before us, and the argument that the issue can not be arbitrated because of the expiry of a mandatory time limit. As we have already noted, the agreement is binding on the parties by virtue of section 51 of the CCBA. The mandatory enforcement mechanism is spelled out in section 46 (2): Every collective agreement shall provide for the final and binding settlement by arbitration of all differences between the employer and an employee organization arising from the interpretation, application, administration, or alleged contravention of the collective agreement includin.q any question at to whether a matter is arbitrable. That is the statutory foundation for the arbitration process, and thus, the underpinning of the steps that led to the constitution of this board. Generally speaking (but subject to any collision with other provisions of the Act) the statute contemplates that bargaining parties are entitled negotiate the actual contents of the collective agreement, as well as spell out what sorts of disputes will or will not be "arbitrable". That is the inference from the emphasized words in Section 46(2) above. Thus, it is open to the parties (at least prima facie) to determine that certain kinds of disputes cannot be arbitrated unless they are in the proper form, or are filed within negotiated time limits. Moreover, an arbitrator under the CCBA has no statutory authority to relieve against such "mandatory" time limits, because, as the College points out, the scheme of the CCBA is somewhat different from that of the Labour Relations Act. In particular, there is no provision in the CCBA like section 48(16) of the Labour Relations Act, which reads · Except where a collective agreement states that this section does not apply, an arbitrator or arbitration board may extend the time for the taking of any step in the grievance procedure under a collective agreement, despite the expiration of the time, where the arbitrator or board of arbitration is satisfied that there are reasonable grounds for the extension and the opposite party will not be substantially prejudiced by the extension" There is nothing like that in the CCBA. Accordingly, time limits can be much more significant for community college collective agreements than they are under other statutory regimes. In a collective agreement to which the CCBA applies, failing to meet a time limit can be "fatal", in the sense that if the grievance is not filed in time - often within a few days - an undoubted breach of the agreement cannot be challenged or remedied. With this general background then, we return to the College's two "preliminary objections"' (1) that the grievance is not "timely"; and (2) that the subject ( matter of the grievance cannot be pursued as a "union grievance". It will be convenient to deal with these questions one by one. III - The timeliness question The College contends that under Article 32.10, the union must grieve within 40 calendar days "from the occurrence or origination of the circumstances giving rise to the grievance". The College says that time starts to run when the lab monitors were hired on or about Au.qust 26, 1996, or at the very latest, from September 3, 1996 when the first tutors made their appearance in the labs. The Colleges points out that this grievance was filed not filed until October 21, 1996; so counting from either benchmark, the complaint is out of time. It is either 16 days late, or 8 days late. The College submits that the lateness makes the grievance "inarbitrable"; and reiterates that a board of arbitration has no statutory authority to relieve against this defect. However, in our view, there are a number of problems with this proposition. First of all, it is vaguely troubling that what the union asserts is a "total repudiation of the agreement" is what feeds the employer's "defense"; because by completely ignoring its own notice obligations, the College may have impeded the ability of the union to react in a timely way. '. In the union's submission, it is incongruous to suggest that the College could fail to post vacancies for new bargaining unit jobs (breaching Article 27.11), could fail to provide new employees with a copy of the agreement and the names of union officials (breaching Article 3.01), could fail to provide an up-dated personnel list during the last week of September (breaching Article 27.12), need not "upon the initial hiring of an employee in the bargaining unit, forward a copy of the initial [wage] step placement calculation to the union local president (contrary to Article 14.01b), then say, in effect, "you didn't discover these contraventions within 40 days of the beginning of the school year so your complaint is not arbitrable". Moreover, this assertion is especially problematic when Article 32.01 suggests that the grievance procedure is only available to employees who have been employed continuously for the previous four months - which means that if the union can't grieve the individual employees would not be able to grieve either. The scheme of the collective agreement seems to be premised upon the union getting timely notice of the way in which the employer is dealing with employees. Yet on the employer's theory, there is not only no remedy for the breach of these provisions (which have a "timeliness element") but that breach, in itself, compounds tl~e union's ability to seek redress. These various notice provisions underline the obvious problem that the trade union will have keeping track of personnel changes in a large work force distributed throughout a number of classifications and academic departments. However, reading the time limits in the grievance procedure in the manner suggested by the College would rob these notice provisions of much of their meaning. And for that reason alone, it is not an interpretation which, we think, we should readily embrace unless the language of the collective agreement truly compels it. This is not to deny that the time limits can be "mandatory", nor to suggest that the College has acted in bad faith or has intentionally concealed the circumstances giving rise to this grievance. It is simply that in this kind of case, where the ambit of the bargaining unit may not be clear (a.possibility clearly envisaged by section 81 of the CCBA) it would be odd to have the scope of the unit purportedly determined (for some employees but not necessarily others) by the operation of a time limit. That outcome ' does not appear to be congruent with a statutory scheme which assigns employees to one bargaining unit or another. Nor do we think we should lightly embrace an interpretation which robs so many of the notice provisions of their utility. There is therefore much to be said for the union's position that if the College has not given a timely notice of its position, it should not be permitted (i.e. it has waived its right) to complain later that the union has not made a timely response. Moreover, we do not accept the College's submission that "time runs" from the date that the lab monitors were hired, or from the date that they first began to work in the lab setting. The instant grievance is not founded upon employment status per se. Nor ]? is it founded upon the fact that lab monitors were present on campus, or geographically situated in what is arguably a classroom setting. Under this collective agreement, time runs from the circumstances giving rise to the grievance - which is to say, from the time that lab monitors began performing functions of such kind or volume that would bring them within the scope of the agreement. That does not occur when the lab monitor are hired or even when they set foot in a "classroom". Rather, it occurs when they engage in teachin.~ functions for more than six hours per week. Indeed, the recognition clause itself contemplates a threShold which the employee must exceed before any breach of the agreement could occur; and as we have already noted, the employer's position on the merits is that there have never been any circumstances warranting a grievance, because the employees have never engaged in functions of the kind or frequency that would trigger the application of the agreement. The point is: while the College raises this as a "preliminary question" going to "arbitrability", the timeliness issue is not really "preliminary" at all, because its determination depends upon facts - and the characterization of facts - that are part and parcel of the merits of the dispute. Accordingly, in the absence of agreement about what the evidence will be, it is neither prudent nor possible to pin down "the occurrence or origination of the circumstances giving rise to the grievance ...". It is open to the union t© argue, as it does, that the breach did not occur until on or about October 21, 1996, or sometime in the 40-day period immediately preceding October 21, 1996. It may turn out, as the College says, that there were never any circumstances warranting a grievance - which is to say, that "teachin.q functions" were never performed by lab monitors, or were never performed to the degree that would bring them within the unit (arguably, 6 hours a week). However, unless we say that any "teachin.q" at all brings an individual within the bargaining unit, (which we will no doubt hear argument about), the facts respecting the "timeliness issue" are completely intertwined with the merits of the case. In any event, we are of the view (to put the matter colloquially, for a moment) that the problem posed in this case was as much a "live issue" on October'21, 1996 and after, as it was in the first few weeks of the 1996 academic year. This was not just a "continuing issue" in a colloquial sense, but, on the union's theory, pertains to continuin.q and multiple breaches of all aspects of the a.qreement, as it might be applied to the individuals in question from time to time throu.qhout their employment. Conversely, to cite but a few instances of what flows from the College's position (assuming for the moment that it is "right" on the merits): · the College need not provide the individual employee with a copy of the agreement and information about the union "on or prior to commencement of employment"; · the individual employee has no contractual right to be free from (inter alia) sexual harassment; · these employees are not caught by the statutorily-prescribed no- strike prohibition; · no union membership dues need be deducted each month; · there is no restriction on workload/work assignment in respect of these employees; · if the individuals want to go to school, they have no entitlement to apply for tuition subsidy under Article 12.01; · initial salaries are not subject to negotiations at all, need not be reported to the union, and need not be paid in accordance with the requirements of Article 14; · there is no contractual entitlement to any of the stipulated holidays in Article 16; · there is no access to the short-term disability plan despite the fact that Article 17.01 says that "new employees will be eligible for benefits under this Plan from their first day of service with the College ..."; And so on. On the other hand, if the union is right, and this category of employee is covered by the academic collective agreement, there is a new violation (for each employee) whenever circumstances arise which call into play any of these provisions of the collective agreement (e.g. monthly union dues or weekly wages). In summary, the College's decision not to apply the agreement to the lab monitors is not a discrete violation from which damages flow. Rather, there are a whole series of violations which crystallize whenever a particular clause might be engaged for a particular employee. The position taken by the College on the scope of the bargaining unit raises a "continuing grievance". The cases put before us (under the College's collective agreement and 2O otherwise) hold that a time limit - even a mandatory one - is less significant for what may be described as "continuing grievances", because each new occurrence constitutes a separate breach which may be independently grieved. The essence of a continuing grievance is that the act complained of is one that recurs, and thus can be the subject of a new complaint upon each recurrence. And with each new occurrence the time starts running again. In Re Toronto Parkin.q Authority (1974), 5 L.A.C. (2d) 150 [a case which also involved the scope clause of a collective agreement] Professor Adell described continuing grievances as: grievances which do not relate to a single act possessing substantial finality, such as a discharge or promotion, but relate instead to a continuing course of conduct - conduct which is renewed at regular intervals and is capable of being considered as a series of separate actions rather than as one action which may just happen to have continuing consequences. That is what we take Lacourciere, J.A. to mean in Re United Glass etc..-Workers and Dominion Glass Co. Ltd. et al. [1973], 20.R. 573 when he talked about a "continuing violation" this way: This is particularly true in a case of the present grievance, which is properly characterized as a continuinq .qrievance, inasmuch as the retention of an employee who does not belong to Local 264, and the failure by the company, inter alia, to deduct and remit union dues to the proper union from time to time, would be a continuing violation of the union's security provisions (Art. 4) of the agreement, if the job classification was covered by the collective agreement. The present case, of course, is not about (or just about) the transfer of certain work to an employee said to be in the bargaining unit, as was the case in Dominion Glass. Rather, the issue here involves an entire classification of employees whom, it is said, are beyond the scope of the agreement - however and whenever that agreement is to be applied. And in our view, that raises a continuing violation of the collective agreement that can be grieved by the union at any time. In particular, even if we accepted the College's starting point in August or early September, we do not think that the contractual time limit or the union's alleged "lateness" (be it 8 days or 16 days) makes the instant union grievance "inarbitrable". Now it may be that the College is right about the scope of the collective agreement. The College may be right that none of the lab monitors has ever done teaching or otherwise performed functions to bring him or her within the scope of the collective agreement. But if the College is not right about that, then there will be multiple. and continuing breaches of the agreement in respect of some or all of the employees in question, whenever they can point to an employee right or employer obligation in the collective agreement. The list above illustrates only a few examples. In our view, the current policy grievance falls within the parameters of a' "continuing grievance". There is a new breach of the agreement (a new "cause of action", as it were) whenever there is a wage payment that is outside the scope of the agreement; whenever union dues are not remitted; whenever benefit premiums are not deducted; whenever there is a work assignment or schedule working hours beyond limits or procedures prescribed in the agreement, and so on - in short, whenever the College determines not to apply the collective agreement to persons who are undoubtedly its employees. In our view, this is the kind of alle.qed breach that can be grieved despite the mandatory time limits because, in effect, time is restarted so frequently as to be, in effect, continuously running. We see no merit to the employer's "timeliness challenge". We should observe, parenthetically though, that we have used the word "alleged" in the previous paragraph because, at this stage, the union's assertions remain a mere allegation, that it would be obliged to prove. It is by no means clear that the functions performed by the lab monitors actually are of such character or volume as to bring them within the scope of the collective agreement. And there may be a difficult question of characterization if, as the College asserts (in the alternative) that the "core functions" of the lab monitors do not involve "teachinq" at all, or that wh~{~ might be described as "teachin.q" functions are merely occasional or incidental to what the lab monitors normally do. For as arbitrator Lysyk observed in Re Orenda (1972), 1 L.A.C. (2d) 72: In brief, on the question of proportion of time that must be spent by a nQn- unit employee on bargaining work to warrant the conclusion that such employee has been brought within the scope of the unit, the precedents do not appear to have established a precise formula; moreover, it is not always clear what significance, if any, has been placed upon past practice. Indeed, it may well be that this is an area in which very precise rules are neither possible nor desirable. Indeed, depending upon the context, arbitrators have devised quite a number of 2.3 formulations, which are sometimes difficult to reconcile. What they share is a sense that the functions said to attach to one bargaining unit or another must be more than merely incidental aspects of the employee's job duties. In any event, that is a question for the merits. For present purposes, we need only decide that, as a preliminary matter, the grievance is not "untimely". IV - Is the Union entitled to brin.q this grievance? On this branch of the argument, we begin by observing that if the union cannot grieve the failure to apply the agreement to lab monitors, it is not clear who can-, because, as we have already mentioned, Article 32.01 confines the grievance procedure to an "employee who has been employed continuously for at least the preceding four months". The lab monitors would not meet that requirement in October 1996 when the union filed the instant grievance. Accordingly, under the employer's reading of the agreement, NO ONE can seek enforcement of the various provisions of the agreement that undoubtedly apply to bargaining-unit employees upon hiring, and for the next four months. If the individual employee cannot grieve and the union cannot · grieve, there is, perforce, no means of dealing with alleged breaches of the collective agreement. It is difficult to accept that this was the parties' intention; moreover, as the union points out, it is equally difficult to reconcile that result with the compulsory arbitration scheme of the Colle.qes Collective Barqainin.q Act. Section 51 of the CCBA makes the agreement "binding", and section 46 contemplates that alleged violations of the agreement will be dealt with by arbitration. But on the College's reading of the agreement, there is no way to enforce these terms. And if that is so, in what sense is the agreement "binding" on the College as is required by section 51 of the CCBA? Now, of course, it might be said that the parties have carved out a whole range of potential violations of the agreement that are not susceptible to arbitration, through the device of defining what is or is not "arbitrable". But that would certainly be an unusual result where, as here, the parties have so clearly intended that certain rights should trigger upon the hiring of an employee into the bargaining unit. It is difficult to reconcile these provisions with a construction that would make them completely unenforceable. Nor is it easy to square that conclusion with the fact that the bargaining unit definition, and thus the definition of "employee", are both imposed upon the parties by statute. In our view, it is at the very least odd to suggest that, under the statute, an individual can be an "employee" whom the union is obliged to represent and that individual has purported rights under the collective agreement (e.g. to receive a copy of that agreement), yet there is no way to require the employer to abide by what it has bargained. Nor, quite frankly, does this appear to be consistent with the view articulated by the Ontario Court of Appeal in Re Ontario Hydro and Ontario Hydro Employees' Union, Local 1000 [1983], 41 O.R. (2d) 669. 25 This is not to say that the consequence of a particular interpretation should be permitted to confute the clear language of the collective agreement. However, where those consequences would seem to undercut other negotiated provisions, and may collide with the statute as well, we think that an arbitrator should be satisfied that that is what the parties clearly intended, and that the words they have used clearly produce that result. So what is the language in this particular case? To repeat, the operative provision is Article 32.10, which reads in part: 32.10 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such .qrievance shall not include any matter upon which an employee would be personally entitled to .qrieve and the regular .qrievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not .qrieved an unreasonable standard that is patently in violation of this Aqreement and that adversely affects the rights of employees. There is no doubt in this case that there is a difference between the parties concerning the interpretation, application, administration, or alleged violation of the collective agreement. The union asserts that the collective agreement applies to lab monitors because they fall within the ambit of Article 1. The employer suggests the contrary. So there is a "difference" of the kind contemplated by the opening sentence of Article 32.10 o and of Section 46(2) of the CCBA, for that matter. 2d Accordingly, the question becomes whether this is the kind of dispute, which is excluded by the limiting words emphasized in Article 32.10 above. And in answering that question, we think that it is useful to look very carefully at the language of Article 32.10, and to examine the elements of the limitation to see whether the circumstances there described fit the circumstances of this case. First of all, it will be seen that the primary restriction is intended to foreclose grievances on matters upon which individual employees would be personally entitled to grieve. There is then an exception to that restriction that refers: (1) to an "unreasonable standard"; (2) that is patently in violation of the agreement, and (3) adversely affects the rights of employees. Items (1) - (3) are not a model of clarity, and have, in fact, been the focus of a number of arbitration decisions. However, it is important to emphasize that the "exception language" itself still refers to, and is premised upon, circumstances where the employee might have, but has not grieved. The obvious intention is to prevent the union from prosecuting claims that the individual has no interest in pursuing - except in very limited circumstances. It is significant, though, that both the opening phrase of the limiting sentence and the words preceding the enumerated criteria for exemption, presuppose an individual employee entitlement to gi'[ev~'. They limit the ability of the union to launch litigation when individual employees have chosen not to complain. That is the pivotal presumption on which the limitation turns. 27 But these considerations have no application here at all. This is not a situation (at least as at October 21, 1996), where individual employees who could have grieved but chose not to do so. As we read Article 32.01, the individual employees were not entitled to grieve at that stage. (And, of course,, how could they know of their rights if the College did not give them a copy of the agreement or direct them to a union official - as the College is obliged to do for new employees covered by the agreement)? In any event, the emphasized portion of Article 32.10 (above) really has no application at all to the particular situation before us in this grievance. We are left, therefore, with the open-ended words in the first sentence of Article 32.10, which gives the union a general right to "grieve", and which, we note, mirror the compulsory language found in section 46 of the Colleges Collective Bar.qainin.~ Act. In our view, that is sufficient to dispose of the second branch of the College's preliminary objection. However, if we are wrong in this regard, we would find, in the alternative, that the College has waived any right it might have had to challenge the form of the grievance. There was no initial objection to the .form of this grievance. Nor was there any assertion that the steps taken by the union did not comply with the requirements of Article 32.10. And the employer was not blind to potential problems of "arbitrability", because it quarreled with the timeliness of the grievance, relying upon a later portion of that same Article that it relies upon to attack the ability of the union to grieve. In other 28 words the College DID raise and crystalize a question of arbitrability - just not the one it decided to raise 16 months later. No question of "form" was raised in the course of the grievance procedure, prior to or on the referral to arbitration, or before the constitution of this board; and in our view, that amounts to a representation that, timeliness aside, the grievance was properly framed and arbitrable. It would have been effortless to raise an alternative ground going to "arbitrability", but the employer did not do so, and, in the circumstances would reasonably be taken as acceding to the form (although not the timeliness) of the grievance. If the College had raised a challenge to a "union grievance", the union or an affected employee might have filed a new grievance or a different kind of grievance, or sOught some other legal means to resolve the real dispute. Or the union may have conceded the point and withdrawn the instant referral. We decline to speculate. It suffices to say that, in our view, in the circumstances of this case, the College has waived whatever right it may have had to complain about the form of the grievance. V - Where does this case .cio from here? In the foregoing discussion, we have been careful to describe the union's position as "assertions", and have approached the questions of arbitrability by assuming, without findinq, that those assertions are true and provable. Having found that this 'un'on grievance" is arbitrable, the onus remains upon the trade union to establish both the factual and legal foundation for its position that the "lab monitors" are employees to whom the collective agreement should apply. There are also some remedial questions flowing from the fact that the board is being asked in 1998-1999 to fashion a remedy in respect of an alleged breach beginning in the Fall of 1996, and involving a number of different employees. At the beginning of this decision, we recorded our impression that there may not be a significant dispute between the parties as to what the lab monitors do from day to day. These facts may not be in dispute; and the focus of the debate may be on how to characterize those duties, and how to determine whether they are of such kind or frequency as to bring the disputed individuals within the scope of.the unit. If our impression is accurate, then it may be that this case can proceed on the basis of agreed facts or "will say statements", with the parties reserving the right to argue about how the collective agreement should be applied. Certainly it makes no sense to hear a parade of witnesses tell us what they did in 1996, if their evidence/recollections are not seriously disputed, or if things have changed since then. Nor does it make much sense to review a number of separate situations if one "test case" would provide a platform for arguing the legal/interpretation principle. With that in mind, we therefore encourage the parties to explore an agreement on the facts and/or documents. Likewise, the parties should consider (and advise the board) whether "Hoogendoorn princ'ples' require notice to any current lab 30 monitors who, as a result of this proceeding, may find themselves part of the bargaining unit. If this case is to proceed, it is important that it not go off the rails as a result of unresolved notice issues. Dated at Toronto, this ~,I~""~ (2~;~ ~ 0~-~~ 1998. R.O. MacDowell (Chair of the board) I agree Sheril Murray (Union nominee) I dissent Peter Hetz (College nominee)