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HomeMy WebLinkAboutUnion 87-11-22IN THE MATTER OF AN ARBITRATION BETWEEN: St. Clair College (hereina£ter re£erred to aa "the employer") - end - Ontario Public Service Employee~ Union (hereina£ter re£erred to aa "the trade union") And In the Matter o~ Trade Union Grievancea (OPSEU #87A01 and #87A02) Be£ore: D.H. Katea, Chairman R.J. O'Connor, Employer Nominee Edward Seymour, Trade Union Nominee Appearing ~or the College: C.G. Rigg~, O.C. Appearing ~or the Trade Union: Malcolm Ruby, Counael Appearing £or the Intervener~: Paul Rousseau and Tim Field, Faculty Education O££icera Heard at Windmor, Ontario, on June 26, 1987, heat written submi~aion received on Auguat 1, 1987. Decision The principal issue to be decided in this case is whether the incumbent employees who occupy the poaition~ o~ Faculty Education Officer end Curriculum Officer "ere employed as teachers" end ere thereby appropriate for inclusion aa employee members o£ the Academic Bargaining Unit. The trade union hes ~iled two grievencgm alleging that the incumbent employees are not appropriate for inclusion in the Academic Bargaining Unit end that the employer in treating them am teachers has not only violeted the relevant provisions of the collective agreement but has also acted contrary to the relevant provisions o£ The Crown Emmloveem Collective Bar~aininq Act (1975). The grievance is £ramed es an alleged violation of the seniority provisions of the collective agreement end reads in part as This is e grievence filed by Local 138 under Article 11.10 of the collective agreement. The College has created the position of Faculty Education Officer which is s non-teaching position recently filled by two members of the academic bergeining unit. The College has chosen to fill this position ss a bargaining unit position with continuous membership end accumulation of bargaini~ unit seniority. Local 1~, however~ Contests that this position does not meet the criteria of the four classifications set out in the Collective Agreement (i.e., teacher, instructor, counsellor, librsmien). Local 138 also contests that the College has misinterpreted "The Colleges Collective Barqainin~ Act 1975 (Bill 108, Schedule 1, The Classification Plans 1982 (Classifications for Doaition~ in the academic bar~ainin~ unit) end Article I of the Collective A~reement". emphasis added The positions' incumbents were given notice of these proceedings and Messrs. Rousseau end Field, Faculty Education O£ficerm, appeared at the hearing and participated aa parties hereto. The incumbent CurricUlum Officer (Ma. L. Hubba) did not file en appearance. The employer has re3ected the substance of the trade union's allegations and insisted that the incumbent employees, while occupying the pomitions in question, "are employed aa teachers". It thereby maintains that they e~e appropriate fo~ inclusion in the Academic Bargaining Unit. In any event the employer submitted, with respect to the grievance relating to the Faculty Education Officers, that that grievance was untimely. More particularly, having regard to the lengthy period that the amid position has been in existence, it was argued that the grievance, to the extent it exceeded the prescribed time limits contained in Article 11.10 for the filing of en appropriate union grievance, wes not arbitrable. Accordingly, this arbitration board was without 3uriediction to entertain the Faculty Education Officer's grievance. In any e~gnt, the employer argued that the trade union estopped ~rog~ arguing that the incumbents to the were not appropriate for inclusion in the Academic Bargaining Unit. It ia common ground that the composition o~ the Academic Bargaining Unit aa described in the collective agreement must reflect the statutory description for the Academic Bargaining - 3 - Unit that ia prescribed by The Colleqea Collective Berqainin~ Act. 1975 (herea£ter referred to aa "The Act"). Accordingly, to the extent the bargaining unit described in the Academic Collective Agreement may be in conflict with the Act this Arbitration Board ham 3urisdiction to correct the con£1ict or the inconsistency so aa to ensure that the collective agreement remains both harmonious and compatible wit~ the governing legislation (see for example Re. O.S.S.T.F. and York Board of Education (1987) 58 OR (2d) 375 (Div. Ct.) at pp. 395-6). The relevant provisions of "The Act" read aa follows: 1. In this act and in the Schedules, (a) "agreement" means s written collective agreement between the Council on behal£ of the employers and an employee organization covering terms and conditions of employment negotiable under this Act; (b) "bargaining unit" means the academic staff bargaining unit of employees or the support staff bargaining unit employees met out in Schedules 1 and 2: (f) "employee" means e person employed by a a board o£ governors of a college o£ applied efts end technology in position or classification that is within the academic bargaining unit or the support staf~ bargaining unit set out in Schedules I and 2: 48(2) Where e conflict appears between any provision of an agreemen~ and any provision of any legislation, the provisiO~-of the legislation prevails. SCHEDULE 1 The academic sta££ bargaining unit includes the employees of ell boards o£ governors of colleges of applied arts and technology who are employed as teachers, counsellors or librarians but does not include: (i) chairmen, (ii) department heads, (iii) directors (iv) persons above the rank of chairman, department head or director, - 4 - (v) other persons employed in a managerial or confidential capacity, (vi) teachers who teach £or six hours or less per week, (vii)counsellors and librarians employed on a part-t/me (viii) teachers, counsellors or librarians who are sppointed for one or more sessions end who are employed for not more than twelve months in eny twenty-four month period, (ix) a person who im a member of the architectural, dental, engineering, legal or medical profession, entitled to practise in Ontario and employed in a professional capacity, or (x) a person engaged and employed out~ide Ontario. And the relevant provisions of the collective agreement reed aa 1.01 The union is recognized es the exclusive collective bargaining agency £or ell academic employees o~ the Colleges engaged as teachers (including teachers of Physical Education), counsellors end librarians, all ss more particulsrly set out in Appendix 1 hereto save and eMcept Chairmen, Depsrtment Heeds end Directors, persons above the rank of Chairman, Department Head or Director, permons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support ata~£ bargsining unit, and other persons excluded by the legislation end teachers, counsellors end librarians employed on a pert-time or sessional basis. 11.10 Such grievance shall be submitted in writing by the Union Grievance Officer at Heed Office or a Local President to the Director of Personnel or as designated by the College, within twenty (20) deym following the expiration o~ the twenty days from the occurrence or origination of the circumstances giving rise to the grievance commencing st Step No. I of the Griewsnce Procedure set out above. The part~e spent a substantial portion of their written argument deb~ttng the proposition ms to whether or not the trade union's grievance constituted a "continuous" grievance to which the time limits contained in the collective agreement were irrelevant. More particularly, the debate £ocuseed upon the applicability o£ the pronouncements o£ the Court Appeal in ~e United Glass and Ceramic Workers of North America end Dominion Glamm et el. (1975) 40 D.L.R. (3d) 496 to the issue of whether the status o~ the incumbent employees £or purposes of the collective agreement represented an imoleted and/or discrete transaction that could be litigated in e more timely manner in subsequent grievancem should the occasion arise. It appears however that both the arbitral end court cases that have been decided since "Domglass" (and which recently have been discumsed and summarized in Re Port Colborne General Hospital and Ontario Nurmes' Ammociation (1986) 2~ LAC (3d) ~23 (Burkett)) have ~igni£icmntl¥ restricted the scope of the Court of Appeal'm pronouncements. We mention this, however, only to indicate that we have examined the relevant 3urisprudence and have concluded that the maid case law hem no relevance to the employer's timeliness challenge. Our reasons £or reaching that conclum£on will accordingly £ollow. It is important that we stress the trade union'm ~undamental allegation expremsed in its grievance. There it is charged that the College in treatin~ the incumbent employee~ em "teacherm" and members of the Academic Bargaining Unit hem breeched The Colle~e'm Collective Bar~ainin~ Act. And, should that allegation be sumtained, then the collective agreement insofar am it im seen to be in conflict ~ith the Act (as Section 48(2) prescribes) must be made subservient to the "prevmiling" legislation. It appears, mccordingly, that the trade union has - $ - raised a fundamental question relating to the!]uriadictional propriety of the employer's action for purpoaem of the Act. And because that action may be inconmimtent with the prescriptions of the Act we are of the view that the time limits o£ the collective agreement have absolutely no relevance to the dimpoaition of that allegation et Arbitration. Or, more migni£icantly, because the issue that ham been raised relates to a question of 3uriadiction under the governing legislation that issue im immune from the time limit restrictions o£ the collective agreement because such quemtiona can be legitimately ratmed at any time. Accordingly, mhould the trade union'm allegations of a violation of the preecribed legislative Prescription prevail then it ia our view the employer's actions aa directed by Section 48(2) of the Act in treating the incumbents, while occupying the pomitiona in question, members o£ the academic bargaining unit constitute a nullity and are void ab inttio. We ere there£ore of the opinion that the employer's ob3ection with respect to the arbitrability of the said grievancesmumt be met The part~i~a adduced evidence with respect to the dutiem and reaponaiblli~ea o£ the Faculty Education Of£1cer and the Curriculum Officer. We heard more information with respect to the former than the latter. No party questioned the contributions the incumbentm of theme pomitiona have mede to the ob3ectivem of the College end thereby it~ ~tudent~. It common ground however that these.employees while occupying those positions do not teach students. - 7 - Basically the Faculty Education Officer's principal function is to per£orm counselling services on behal~ o£ teaching masters who may require assistance in carrying out their teaching responsibilities. To this end the Faculty Education O££icera plan and arrange seminars £or the purpose o£ conveying teaching techniques, provide counselling services ~or teachers who are encountering di££iculties with students and generally extend teaching masters their support in whatever way will result in the more e£~icecious carrying out o£ their teaching responsibilities. The Curriculum O££icer consults with teachers and relevant members o£ the College Administration with respect to the adoption o£ new courses or the making o£ changes to existing courses and generally contributes to de£ining course work ob3ectives. An important part o£ the incumbent's duties is to ensure course compliance with Ministry guidelines. Like the Faculty Education O££icer the incumbent Curriculum O££tcer may provide assistance to the teaching masters with respect to more e~ective ways o~ imparting the subject matter constituting the curriculum o~ a particular course. In that sense the incumbent may recommend appropriate text books, resource material, etc. that ia relevant to attaining the courses' objectives. The incumbents ere £ormer teaching masters et the College who have accumulated several years o~ teaching experience. Obviously, their experience aa teaching masters aa well aa their own particular area o£ expertise have made them appropriate candidates £or these positions. They are paid a premium over - 8 - end above their regular teaching master rate o£ pay. The trade union has not questioned the incumbents' qualifications to carry out the duties of these positions. It is important to repeat that the incumbent Faculty Education O££1cera and the Curriculum Officer do not teach students. We were advised, particularly in Mr. Rousseau's case, that the Faculty Education O£~icers still ~ight deliver a lecture or hold a seminar in their academic area upon invitation from an appropriate teaching master. But it was not seriously contended that these isolated end infrequent teaching £unctions should have an impact on the outcome of this decision. Indeed it was indicated that the incumbents ere not required to submit, as is the case o£ teaching masters, & "standard workload £orm" setting out their teaching schedules. It suffices to say, for present purposes, that the incumbents are permanently assigned to these positions and as such the positions', duties end responsibilities require no direct teaching contact with students. The trade union argued that the phrase "emPloyed" or "engaged" ss.teachers ae used in Article 1.O1 of the collective agreement end/or Schedule 1 o£ the Act contemplates that in order to be treated es e "teacher" for purposes of membership in the Academic Bargaining Unit the employee must teach students. Re£erence wes mede to severe1 provisions o~ the collective agreement, particularly to the work load provisions under Article 4, to demonstrate that instructing student~ in e manner - 9 - typical of a 'teacher was what was intended by the phrase "employed or engaged aa a teacher". Accordingly those activities that would entail instructional activities in a classroom setting, the preparation of lecture materisl~ the marking of essays and examination papers would constitute the type of activities that would constitute the core functions of a teaching master. And aa an incident to the trade union's principal submission with respect to the de£inition of the term teacher it was also emphasised that where the Legislature intended that employees who are engaged in other professional or occupational activities were to be members of the Academic Bargaining Unit express identification was mede to include them. Accordingly, Librarians, Teaching Counsellors, Co-ordinators, Instructors ere specifically included in the Academic Bargaining Unit. It is difficult for this Board to question what appears to us to be the infallible logic of the trade union's Interpretation of "the prevailing legislation". That is to say an employee who ia alleged to be employed es a teacher must teach. Accordingly whet ia it that has convinced the College (and the tw~=incumbent, Faculty Education Of£icera) that the incumbents o~ the two positions in question ought to be treated as "teachers" for purposes of inclusion in the Academic Bargaining Unit? We were re{erred to a document entitled "Class De{lnition, Teaching Master" under the Colleges' Claesi£icationa Plan. That document describes in detail the functions o£ the teaching. - lO - master for 3ob evaluation (pay) purposes. The Class Definition forms a part of the Academic Collective Agreement and is of relevance in determining the appropriate pay levels {or incumbent teaching masters. That document reads as follows: CLASS DEFINITION TEACHING MASTER Under the direction o~ the ~enior academic o£~icer o~ the College or his designate, a Teaching Meate= is responsible providing academic leadership and £or developing an e£fective learning environment £or students. This includes: a) The de~ign/reviaion/updating of courses, including: - consulting with program and course directors and other £aculty members, advisory committees, accrediting agencies, potential employers and students; - defining course ob]ectives and evaluating and validating these ob3ectivea; - specifying or approving learning approaches, necessary resources, etc, - developing individualized instruction end multi-media presentations where applicable; - selecting or approving textbooks end learning materials. b) The teaching of assigned courses, including: - ensuring student awareness of course objectives, approach and evaluation techniquem; - carrying out regularly scheduled instruction; - tutoring and academic counselling of students; - providing a learning environment which makes effective uae of available resources, work experience and field trips; - evaluating student progress/achievement and assuming reepons~Ality for the overall assessment of the student's work within assigned, courses. c) The p~ovision o~ academic leadership, including: - providing guidance to Instructors relative to the Instructors' teaching assignments; - participating in the work of curriculum and other consultative committees aa requested. In addition, the Teaching Master may {rom time to time, be called upon to contribute to other areas ancillary to the Teaching Mamter role, such aa student recruitment end selection, time-tabling, ~acility design, professional development, ~tudent employment, and control of supplies and equipment. - 11 - The Board' was also referred to the 3ob descriptions o£ the Faculty Education Of£icer and Curriculum Officer's positions. The 3ob descriptions (as well as the viva voce evidence elaborating on the positions'' duties end responsibilities) were then compared end matched with the teaching master's "Class Definition". That comparison established, particularly under paragraphs(e) and (c) of the Class Definition, a substantial overlap in the duties and responsibilities of these respective positions. And, of course, the one significant area where there was no similarity pertained to "the teaching of assigned courses" to students under paragraph (b). The College submitted that because of this overlap in duties and responsibilities there wes e sufficient basis for designating for purposes of membership in the Academic Bargaining Unit that the incumbent Faculty Education Officers and the Curriculum Officer were "teachers". It wes suggested that notwithstanding the absence of any teaching responsibilities the Claes Definition was sufficiently flexible to encompass the positions' duties under the Teaching Master definition. There is~ of course, no merit to that argument. The argument fails to address the fundamental question relevant to the disposition of this case. And that ia, "Whether the incumbent employees were engaged as teachers?" Without repeating the trade union's argument, it is clear that they are not. Moreover, it appears that in the College's work environment any number of administrative end support positions that are occUpied Sot the purpose oS achieving the ob3ectivea o~ a post secondary school learning institution may very well overlap with the Sunctiona o£ a teaching master. Indeed we do not doubt the soundness oS th~ College's comparison that there is signi£icant similarity in some areas between the duties o£ the Field Education O££icera' end Curriculum O££icers' positions and the duties o£ the Teaching Master's po~ition. And i~ this case were a 3ob evaluation grievance, the College's analysis might be o~ some relevance. However, we do not doubt that a similar analysis would also demonstrate that a like overlap would result i~ £or example a comparison was made between the position o£ the College's President end the Librarian's position vis-a-via the Teaching Master. Common to both the President's and Librarian's positions is the absence of any teaching responsibilities. In the former case however the President ia excluded from the Academic Bargaining Unit and in the latter case the Librarian is expressly included. In other words, although the incumbents to each of these positions may establish some similarity in duties and responsibllitiem relative to the duties o£ a ~esching master that consequence would not make them teachers ~orm?urposes o~ their inclusion in the Academic Bargaining Unit. Like Librarians we ere of the view that the Legislature had to expressly include the Faculty Education O£ficer's end the Curriculum OSficer's positions in the Academic Bargaining Unit £or them to be treated in e like manner ea Teaching Masters. In the absence of such express inclusion we are o£ the view that Schedule 1 of the Act dictates their - 13 - exclUsion from the Academic Bargaining Unit. Finslly, we do not view that the employer's estoppel a~gument has any ~elevance to vitiating or circumventing an Act o£ the Legislature. Accordingly, ~or all the £oregoing reasons the grievances. succeed. The Board declares that the incumbent employees occupying the Faculty Education O£~icer'a and the Curriculum O££icer's position~ are not members o£ the Acsdemic Bargaining Unit. For purposes o£ clarity we make no decision as to whether the incumbents in these po~itions ought to be treated as managerial employee~ or are otherwise employee~ appropriate inclusion in another bargaining unit. We shall remain seized £or purpose~ o£ implementation. David H. KeYes I concur "Edward Se~our" Trade Union Nominss I dissent '~- "R.J. O'Connor" (Dissent to follow) ~ Employer Nominee