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HomeMy WebLinkAboutUnion 88-04-25BETWEEN SIR SANFORD FLEMING COLLEGE (Hereinafter referred to as the College} ONTARIO PUBLIC SERVICE EMPLOYEES UNION {Hereinafter referred to as the Union} AND IN THE MATTER OF A UNION GRIEVANCE REGARDING THE CALCULATION OF THE PROBATIONARY PERIOD [OPSEU FILE No.87G59] BOARD OF ARBITRATION: Gall' Brent R. J. O'Connor, College Nominee J. McManus, Union Nominee APPEARANCES: FOR THE COLLEGE: Carolyn Kay-Aggio, Counsel Barry Matheson Paul Lassaline F0R THE UNION: George N. Addy, Counsel Peter Mazeikis Hearing held in Peterborough, Ontario on February 12, 1988. DECISION The grievance {Ex. 1) before this board is dated February 15, 1987. It is a Union grievance which reads as follows: A member has had her probationary period increased because of maternity leave. This is in violation of Article 8.01 as there was no loss of continuous employment. The remedy requested is that the employee in question have her probationary period "end on the 2nd anniversary of her hire". The College raised two preliminary objections relating to the arbitrabil- ity of the grievance. The first is that the grievance is not arbitrable as a 2 Union grievance pursuant to Article 11.10; the second is that the grievance is untimely. The parties chose to deal with both the preliminary objections and the merits at the same time in order to facilitate matters. In addition, since there had been no notice given of various human rights issues which the Union wished to deal with, the parties made written submissions. We will deal with the preliminary objections first, and will only deal with the merits of the grievance if we find that it is arbitrable. The basic situation as agreed to by the parties [Ex. 8) and as indicated by the evidence is quite straightforward. The grievance concerns the probationary period of Ms. J. Stocker, a teaching master. The parties agreed to an outline of events (Ex. 8) and it is reproduced below: 2 Jan. 85 - Ms. Stocker ("S") hired as part-time Counsellor 13 May 85 - S. employed as sessional Counsellor Probationary Period begins 9 Sept. 85 - S. employed as probationary Teaching Master 27 Jan. 86 - S. begins maternity leave 23 May 86 - S. ends maternity leave 13 May 87 - per O.P.S.E.U. - probation- ary period ends 13 Sept. 87 - per S.S.F.C. - probationary period ends 25 Feb. 87 - Union files grievance Ms. Stocker has successfully completed her probationary period, no matter which date is taken as the proper date of its conclusion, and is a regular full-time employee of the College with seniority~ She has not filed a grievance regarding her seniority date. The College counted Ms. Stocker's 3 employment as a sessional employee as part of her probationary period. Ms. Stocker was informed by the College in January, 1986, when she began maternity leave, that the College would not count the four months of maternity leave as part of her continuous employment for the purpose of satisfying her probation- ary period. The College took the position that the probationary period was calculated according to Article 8.01(bi of the collective agreement. In Nay, 1986 the College reconfirmed its position to Ms. Stocker upon her return from maternity leave. On December 18, 1986 the Union raised the question of the calculation of Ms. Stocker's probationary period at a College Committee meeting (Ex. 9). It informed the College that there was a case involving Confederation College which dealt with the situation. Mr. Lassaline, the Executive Director of Human Resources, sent a memo to Mr. Mazeikis, the Union President, on December 22, 1986 (Ex. 7) setting out the College's position that the case did not apply to the situation at hand and explaining the College's position. On January 15, 1987 Mr. Mazeikis spoke to Mr. Lassaline and informed him that the Union would probably be proceeding with a policy grievance on the matter. The only apparent reason which was given for the delay in filing the grievance was that Mr. Mazeikis had spoken to Ms. Stocker and told her that nothing would be done until the discussions which she was having with the College were finished. Mr. Mazeikis did not know of the nature of the discussions which Ms. Stocker was having with the College, and it would appear from Exhibit 6 that Ms. Stocker had no idea that Mr. Mazeikis had filed a grievance concern- ing her situation. The evidence indicated that the College had no formal written policy regarding the effect of extended leaves of any sort during the probationary period. The only other situation which it had encountered involved not maternity leave but a one year leave o~ absence durin9 a probationary period. In that case the College extended the probationary period ~or the amount of the leave. The College's evidence was that it viewed the extension as a something that flowed from an interpretation of the collective agreement, and that where an employee is absent for more than ~i~teen days in a month durin9 the probationary period the month should not be counted as a month o~ con- tinuous employment. The College's evidence was that in order to evaluate an employee's performance the employee must be at workt so that when there is an extended absence the probationary period must be adjusted to allow it to evaluate performance. There has never been a discussion between the College and the Union regarding this matter. The College hired forty-six teachin9 masters in Septembert 1986. Seventeen of them are women. The College also has two types of programs. One involves the tradition- al school year teaching; the other is year round. In the first type of program there is no opportunity to evaluate employees in July and August. The College's evidence was that each program involves ten months of teaching, and that it must do three evaluations in the ten teachin9 months in each situa- tion. It indicated that over twenty-four months of employment during a probationary period it would have twenty months to evaluate teaching in each program. The College's evidence was also that it did not credit Ms. Stocker with accumulated seniority durin9 her maternity leave because she had no seniority until her probationary period was completed. The evidence also indicated that employees will be affected in various ways by the determination of their 5 seniority dates. The following provisions of the collective agreement,which may have relevance to the determination of the issues, are, for convenience, are set out before the various arguments regarding arbitrability are considered. 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges ... save and except ... teachers, counsellors and librarians employed on a part-time or sessional basis. 8.01 (a) (i) A full-time employee will be on probation until the completion of the probationary period which shall be two (21 years' continuous employment. (b) Effective September 1, 1976, the probationary period shall also consist of twenty-four (24) full months of non-continuous employment (in periods of at least one (1) full month eachl in a forty-eight (48) calendar month period .... For the purpose of this paragraph, effective September 1, 1976, a calendar month in which the employee completes fifteen (15) or more days worked shall be considered a "full month". Effective September 1, 1981, if an employee completes less than fifteen (15) days worked in each of the calendar months at the start and end of the employee's period of employment and such days worked, when added together, exceed fifteen (15) days worked an additional full month shall be considered to be completed. (c) During the probationary period an employee will be informed in writing of the employee's progress at intervals of four (4) months continuous employment or four (4) full months of accumulated non-continuous employment .... (d) Upon 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) .... 8.11 A full-time employee shall continue to accumulate seniority for the purpose of this Article while: in the College's active employ; absent for up to six (61 months through verified illness or on leave of absence; (c) on sabbatical leave for up to twelve (12) months; on leave of absence on an exchange program approved by the College; lei on pregnancy leave for up to twelve (12) months; on college-approved professional development leave of absence from the college; on college prepaid leave of absence for up to twelve (12) months. 11.05 General {a) If the grievor fails to act within the time limits set out at any Complaint or Grievance Step, the grievance will be considered abandoned; 11.10 Union Grievance The Union 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 grievances 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 persons in the bargaining unit. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Local President to the Director of Personnel or as designated by the College, within twenty (20~ days following the expiration of the twenty days from the occurrence or origination of the circumstances giving rise to the grievance commencing at Step No. 1 of the Grievance Procedure set out above. 27.01 (a) The parties agree that, in accordance with the provisions of the Ontario Human Rights Code, there shall be no discrimination against any employee by the Union or the Colleges, by reason of race, creed, colour, age, sex, marital status, nationali- ty, ancestry or place of origin. The College's position is that this is not a proper Union grievance under Article 11.10 because, since Ms. Stocker would have been entitled to grieve, the Union must show that there was an unreasonable standard which was a patent 7 violation of the agreement and which affected the rights of others in the bargaining unit, and it cannot do so. It argued that what was at issue was an interpretation of the collective agreement and not a standard; that a standard is a measure of quality, and there was no such standard against which Ms. Stocker was being measured; that if there was a standard it was not un- reasonable aD 3n3~3o; that there was no violation of the collective agreement which was openly and clearly on its face a violation; and that actual rather than potential effect on other members of the bargaining unit is what is required and has not been shown. In addition, the College argued that the grievance was not timely, in that it was not filed within forty days of when the Union was aware of the alleged violation. The College referred us to Algonquin College and OPSEU, (1980) unreported (Brandt); Alqonquin Colleqe and OPSEU, {1983) unreported (Weatherill); Seneca Colleqe and OPSEU, {1982) unreported (Brent); and Cambrian Colleqe and OPSEU, (1987) unreported (Samuels). The Union's position on these issues was that the grievance was timely because it was a continuing grievance. It also argued that because this was a policy grievance of continuing impact on all full-time women teachers the time limits would not apply. It argued that this was a proper Union grievance because here there was a patently unreasonable standard given the incorpora- tion of the Ontario Human Riqhts Code into the agreement by Article 27. It argued that the interpretation of full-time employee was read differently in Articles 8.01 and 8.11, and that seniority always ran but just did not get credited until after the probationary period was over. It also argued that the standard was unreasonable because female probationers were being submitted to a different evaluation than male probationers. 8 In reply, the College argued that this was not a continuing grievance; that there is no evidence of any policy or of any way in which the situation might be dealt with in the future; and that Article 11.10 demands a patent violation of this agreement rather than of the Ontario Human Rights Code. It also argued that different evaluation criteria were not being applied to teaching masters on the basis of sex. There is agreement between the parties that in order to bring a grievance under Article 11.10 in this situation the Union has the onus of showing that Ms. Stocker did not grieve "an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of person in the bargaining unit". Leaving aside the question of what an "unreasonable standard" is in the context of Article 11.10, let us see if there is what can be called a "patent violation" of the collective agreement. In our view, in order for a violation of the collective agreement to be called "patent" it must be evident or plain on its face that there has been a violation of the agreement. That is, it is not sufficient that the Union can show that arguably it has a case which could be a violation of the collective agreement depending on which of two reasonably possible interpretations are accepted, but rather that there has been a clear, evident and plain violation of the collective agreement. Upon hearing all of the submissions of the parties it is clear that two of the issues which separate them in connection with whether there has been a "patent violation" are whether Ns. Stocker's seniority should have been calculated under Article 8.01(a) or (b) , and how the term "contInuous' employment", as used in the context of the probationary period, should be interpreted when there are extended leaves, such as maternity leave. It seems 9 to us that the Union has raised an arguable case that if Article 8.01[a) applies, "continuous employment" should simply be a two year calendar period; however, it is equally arguable that the clause could be interpreted as requiring a period of being actively employed. Further, it is difficult to deal with the matter of whether there has been a patent violation of the collective agreement when the parties are clearly referring to different articles as determining the way in which the probationary period should be calculated, without having given us the means to determine which of those two articles should apply to someone in the position of Ms. Stocker, who was hired originally as a sessional employee and had her short sessional service credited to her probationary account when she was hired as a full-time employee. Further, even accepting that the violations of the Ontario Human Rights Code could be considered as violations of the collective agreement by virtue of Article 27.01, we are not sure that the Union has made out any more than an arguable case that this involves a case of discrimination on the basis of sex. If the only extended leave which the College treated in this way were maternity leave the Union's position would be much stronger, but that is not the evidence before us. In conclusion, then, we consider that the most that the Union has put before us is an arguable case that there has been a violation of the collec- tive agreement depending on which of two reasonably possible interpretations of the collective agreement were accepted. That is not sufficient to' show a patent violation of the collective agreement. For that reason alone we must hold that we lack jurisdiction to determine the merits. Given our disposition of the issue of jurisdiction under Article 11.10, 10 it is not necessary to determine the issue of timeliness, and we will not do so. If Ms. Stocker wishes to pursue the matter, and if a subsequent board of arbitration considers that it is in fact a continuing grievance, then she should be free to have the matter of timeliness (as well as the merits) determined by the board of arbitration considering the question, free of any comments which we might make on the subject. Nothing said in this award in connection with the determination of whether the Union can grieve under Article 11.10 should be read as prejudicing any right which Ms. Stocker may have to file a grievance on her own. For all of the reasons set out above, it is our finding that we lack jurisdiction to hear the merits of this grievance because it is not a proper Union grievance within Article 11.10. DATED AT LONDON, 0NTARIO THIS ~19~DAY OF ~?~ , 1988. Gatl Brent I concur /6&~mmt R. J. O'Connor, College Nominee dissent ,.~ ~ c ~ ~ J~ ~ ~ ~m~A~ U.~ McManus, Union Nominee