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HomeMy WebLinkAboutUnion 02-07-17 IN THE MATTER OF AN ARBITRATION BETWEEN: CONESTOGA COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 238 AND IN THE MATTER OF UNION POLICY GRIEVANCES OPSEU FILE NOS. 00B106, 00D255 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR DAVID CAMELETTI, COLLEGE NOMINEE JOHN McMANUS, UNION NOMINEE APPEARANCES FOR THE COLLEGE: STEPHEN F. GLEAVE, COUNSEL FOR THE UNION: IRIT KELMAN, COUNSEL AWARD There are two grievances before the Board, each of which effectively claims that the assignment of part-time employees in excess of 24 hours per week results in their inclusion in the bargaining unit. The provisions of the collective agreement which are relevant to a resolution of the grievances are the following: 1. RECOGNITION 1.1 Exclusive Bargaining Agent The Union is recognized as the exclusive bargaining agent for all Support Staff employees of the Colleges, save and except: - persons regularly employed for twenty-four (24) hours per week or less and persons employed temporarily during the College vacation periods; 4. UNION/MANAGEMENT INTERESTS 4.3 List of Part-Time Employees Once every four (4) months, the Local Union may request in writing a list of persons regularly employed for twenty-four (24) hours per week or less, who have been employed continuously for two (2) months or more and persons hired for projects of a non-recurring kind. Within fifteen (15) working days of the request, the College shall supply the list showing the name, start date, anticipated termination date if known, · job performed, department, payband, estimated' average hours per. week, and regular work location, of each such employee. Within ten (10) days of receipt of the said list, the Local Union may request that it be discussed at a meeting of the Committee constituted under Article 4.2.2. At such a meeting the College shall provide explanations for assigning work on the basis of part-time and full-time assignments, and the nature of any projects of a non-recurring kind for which people were hired in the preceding four (4) months. The College shall consider any representations which the Local Union may make with respect to the assigning of work on a full-time or part-time basis; concerning the feasibility of converting part-time to full-time assignments; and concerning the staffing of positions resulting from projects of a non-recurring kind. 5. UNION MATTERS 5.4 Union Deductions 5.4.1 Authorization There shall be deducted from the regular pay of every employee in the bargaining unit an amount equal to the regular monthly dues as authorized under the by-laws of the Union. 5.4.3 Remittance of Dues Any amounts so deducted shall, subject to Article 5.4.2, be remitted to the Union Head Office. The cheque shall be accompanied by a list of the employees from whom the deductions have been made (a copy of the list shall be sent to the Local Union President) and forwarded by the 15th day of the month following the month in which such deductions have been made. The list of employees referred to herein shall be in alphabetical order by surname and shall include the employee's social insurance number. The Union agrees to indemnify and save the Employer harmless from any liability arising out of the operation of this Article. The President of the Local Union, Ann Wallace, testified that the. Union monitors part-time activity by reviewing lists of employees regularly employed for 24 hours per week or less, which are provided by the College at quarterly intervals. If the Union has concerns about a list, it notifies the College at a Union-Management Committee meeting that it wishes to engage in more detailed discussions concerning the content of the list. The practice, according to Ms. Wallace, is then to strike a subcommittee to deal with the Union's concerns. Ms. Wallace acknowledged that, since the mid-1980's, the Union has been aware of instances in which part-time employees were assigned to work more than 24 hours per week. Although the evidence was rather vague, it would appear that while some of these instances were grieved, others were not. In any event, Ms. Wallace indicated that any grievances, which were filed, were ultimately resolved. For her part, the Manager of Labour Relations, Linda Krotz, testified that, since at least 1990, there has been a practice of assigning some part-time employees to work in excess of 24 hours per week. Her evidence was corroborated, to some extent, by the Chief Steward, Ruth Jensen, who has been charged with the responsibility, along with the Vice-President of the Local Union, Dan Randall, for monitoring the lists of part-time activity since 1996. Moreover, it would appear that in November, 1996, the Union. requeSted a meeting to discuss the matter of assigning part-time employees to work in excess of 24 hours per week. Evidently, there was some delay in responding to the Union's request and, in an effort to expedite matters, on December 10, 1996, the Union advised the College of its intention to grieve "any part-time activity" over 24 hours per week. Although there was no indication that a grievance was filed at that time, the College acceded to the Union's request for a meeting. In fact, a series of meetings of the Support Staff Agreement Committee ("SSAC") was held between January 7 and March 26, 1997, which resulted in the conversion of several part-time positions into four full-time positions. Although most of the conversions were carried out in 1997, Ms. Krotz testified that there were subsequent conversions to full-time bargaining unit positions, specifically, one in 1998 and another in 1999. According to Ms. Krotz, the conversions were carried out either because a pad-time employee was working in a position in excess of 24 hours per week over a continuous period of time or because the aggregate of the hours worked in a position by several part- time employees (each of whom might have been working 24 hours per week or less) over a continuous period led the College to conclude that a full-time position could be sustained. Notwithstanding these conversions, in March, 1999, as a result of its ongoing review of part-time lists provided by the College, the Union raised the issue of part-time employees working in excess of 24 hours per week. In this 5 regard, it would appear that the Union requested further information in respect of some '32 pad-time employees. Nevertheless, a grievance was not filed at that time as discussions between the parties were ongoing and the Union was optimistic that the matter could be resolved. It seems, however, that the matter was not resolved, as part-time employees continued to be scheduled in excess of 24 hours per week. In fact, Ms. Wallace testified that, in the fall of 1999, the Union was aware of several instances in which part-time employees were working in excess of 24 hours per week, these including (1) peak part-time activity, which took place three or four times a year, at the start of each semester, primarily in Continuing Education, Registration and the Bookstore. Although this activity has been ongoing for several years, by 1999, the level of activity had increased, principally because the College has grown. However, Ms. Wallace testified that the Union has not made an issue of the assignment of excess hours for peak part-time activity in past because the activity was cyclical and of limited duration (typically, three to four weeks, although Ms. Wallace acknowledged that, on occasion, peak part-time activity has extended for a longer duration) and because members of the bargaining unit appreciated assistance at these busy times; (2) students working as Camp Counsellors for two months in the summer; (3) special projects, for which the College received funding and hired part-time employees in the summer months for the particular project or activity in respect of which the funding was provided. Generally, the Union "signed off' on the assignment of excess hours to part-time employees involved in these projects. According to Ms. Wallace, there were typically two to four part-time employees hired on this basis; (4)information technology ("IT"), involving a large number of students hired in the summer months (April to August) to assist full- time IT staff in computer laboratory upgrades and installations, and hardware and software upgrades; and (5) two technologist positions, for which part-time employees were hired on a regular basis, one to teach a course in the fall semester and the other, in the winter semester. With respect to the two technologist groups, the College agreed that, because the assignments were for specified periods of time, bargaining unit 7 rates would be paid and dues deducted for these employees, which has been the practiCe for some three or four years. Although the terms of engagement for these part-time employees were not renegotiated on an annual basis, the Union was generally given notice that the employees were being hired and provided with copies of the contracts for individual employees. Ms. Krotz's evidence, which was based on a review of the records of part-time activity over a five-year period, was generally consistent with that of Ms. Wallace. As well, Ms. Krotz made reference to the occasional use of part- time employees in excess of 24 hours per week on what was termed an "irregular basis". For example, it was necessary, on occasion, to extend the hours of part- time childcare workers to cover employee absences in order to maintain the staffing ratio prescribed by law. In addition, from time to time, the Union was given advance notice of the need to increase part-time hours in a particular area or department for short periods of time (one to two weeks), which was consistent with Ms. Wallace's evidence. Finally, Ms. Krotz included within peak part-time activity Drivers in International Education, who provided transportation for foreign exchange students in attendance at the College for short periods of time (generally two weeks). On occasion, exchange programmes took place "back to back", so that Drivers would be working in excess of 24 hours per week for four consecutive weeks. According to Ms. Krotz, as the International Education programme developed over a number of years, it was not until 1999 that Drivers were assigned in excess of 24 hours per week. For its part, the Union did not consider the assignment of excess hours to International 'Drivers as .included within the ambit of peak part-time activity. Accordingly, on December 16, 1999, Ms. Wallace sent a memorandum to Ms. Krotz setting out the Union's concerns respecting the assignment of part-time employees in excess of 24 hours per week and identifying a particular concern with respect to Drivers in International Education. Although the memorandum recognized that an exception to the restriction on hours of work for part-time employees set out in Article 1.1 had been made for peak part-time activity, the memorandum suggested, in effect, that the exception was being abused. The memorandum suggested that the issue of peak part-time activity be referred to the Employee/Employer Relations Committee ("EERC"). Ms. Krotz responded to Ms. Wallace's concerns by memorandum dated December 22"d. In this memorandum, Ms. Krotz undertook to look into the situation involving Drivers in International Education, but maintained that peak part-time activity should continue to be treated as an exception to the restriction on part-time hours. She also rejected the suggestion that the issue of peak part- time activity be referred to the EERC. In any event, as the Union gave notice to bargain in January, 2000, the issue was never referred to the EERC, which did not meet during bargaining. On January 12, 2000, in the course of an SSAC meeting, Ms. Krotz, among others, suggested that a meeting be scheduled with the Director of 9 International Education, Larry Rechsteiner, to discuss conCerns respecting the. excessive use of part-time hours, among other matters. However, Ms. Krotz indicated, in effect, that although she could apprise the Director of the rules respecting the use of part-time employees, she could not compel him to conform to the rules. For her part, Ms. Wallace indicated that she would have no hesitation in reminding the Director of the restriction on scheduling part-time employees in excess of 24 hours per week. Following discussion of other matters, Ms. Wallace stated the Union's position that a part-time employee working in excess of 24 hours per week was entitled to bargaining unit rates and subject to dues deduction. Finally, the Union requested current information on part-time employees working more than 24 hours per week, as part-time lists were generally provided in arrears. By memorandum dated January 18, 2000, Ms. Krotz responded to the concerns respecting excessive part-time hours expressed by the Union at the January 12th meeting. Specifically, Ms. Krotz set out the College's position that individuals regularly employed for 24 hours per week or less who, on occasion, exceeded 24 hours, whether in the performance of peak part-time activity or otherwise, were not entitled to bargaining unit rates or subject to dues deduction. By way of example, the memorandum referred to a part-time employee who worked 28 hours for one week in the Recreation Centre, as well as part-time employees who were engaged in peak period activity in excess of 24 hours per week for a three-week period in the Registrar's Office. In contrast, the 10 memorandum made reference to an agreement between the parties in ;1996 that a part-time technologist who had been working 35 hours per week for a continuous four-month period (September to December) in the School of Business over a period of several years would be paid bargaining unit rates and subject to dues deduction. Similarly, it was agreed that summer students working 35 hours per week for a continuous four-month period (May to August) in IT be paid full-time wage rates and subject to dues deduction. Ms. Krotz committed to continuing this practice with respect to summer students employed on the same basis as the students in IT. Finally, Ms. Krotz expressed a willingness to discuss the excessive use of part-time hours and reiterated her commitment to schedule a meeting with the Director of International Education respecting the matter. On January 26, 2000, the Union filed the first of the two grievances, which are the subject of this arbitration. The grievance was signed by the Chief Steward, Ms. Jensen, who, in conjunction with Mr. Randall, was charged with responsibility for monitoring the part-time lists provided by the College. Ms. Jensen testified that, in reviewing the list of part-time employees for the 13-week period from July 25 to October 23, 1999, she noticed that, apart from peak part- time activity, of which the Union was aware, there was an increase in part-time employees working in excess of 24 hours per week. Specifically, Ms. Jensen identified 43 employees who had worked in excess of 24 hours per week for some or all of the 13-week period, which prompted the filing of the grievance. 11 Although the Union expressed the number of weeks worked in excess of.24. hours as a fraction of the number of weeks actually worked by the individual employees (the evidence being that not all employees worked for the entire 13- week period), the College maintained that the weeks worked in excess of 24 hours ought to be expressed as a fraction of the entire 13-week period. Accordingly, the Union's data with respect to weeks worked in excess of 24 hours, expressed as a fraction of (1) the number of weeks worked by individual employees; and (2) the entire 13-week period, are set out below. It should be noted that the College also submitted data (in the form of payroll records and part-time reports) covering the same employees over the same period. Although there are a few discrepancies in job classifications and even in the number of weeks worked in excess of 24 hours in respect of individual employees, these discrepancies do not affect the disposition of the grievances. Nevertheless, the Board has accepted the most neutral description of the jobs in question (referring, for example, to job classifications rather than the characterization of jobs as "peak part-time"). Name Classification # of weeks in # of weeks excess of 24 in excess of hours as a 24 hours as fraction of the a fraction of # of weeks 13weeks worked 1. Rosemary Szponarski Office Services Assistant 8/13 8/13 2. Michael Ferdinand Driver/International Education 5/8 5/13 3. Dennis Lichty Driver/International Education 2/4 2/13 4. Ronald Schaaf Driver/International Education 6/10 6/13 12 5. Frank Schatz Driver/International Education 4/6 4/13 6. Sharon Schultz Driver/International Education 1/1 1/13 7. Leslie Schmidt Clerk General 2/2 2/13 8. Isobel Bennett Clerk General 4/11 4/13 9. Linda Collison Clerk General 2/9 2/13 10. Sherri Cromwell Clerk General 5/11 5/13 11. Darlene Lavigne Clerk General 2/13 2/13 12. Michelle Godbout Clerk General 2/6 2/13 13. Anjali Lowe Clerk General '3/4 3/13 14. Jessica Mollame Clerk General 2/3 2/13 15. Katherine Pialagitis Clerk General 2/7 2/13 16. Cynthia Dwyer Clerk Supply 6/12 6/13 17. Carole Johnston Office Services Worker 4/10 4/13 18. Robert Santos Shift Attendant 4/9 4/13 19. Robin Wilson Technician 4/4 4/13 20. Stewart Jotham General Maintenance Worker 5/13 5/13 21. Jason Vinandy Technician 6/13 6/13 22. Mark Fetter General Maintenance Worker 5/5 5/13 23. Shawn Parsons General Maintenance Worker 6/6 6/13 24. David Keil Plate Cutter 4/5 4/13 25. Gabor Fejerpataky Mechanical 5/11 5/13 26. Theresa Godfrey Mechanical 5/7 5/13 27. Judy Hutchinson Mechanical 1/1 1/13 28. Shaun Kempel Mechanical 5/11 5/13 29. Pat Danbrook Summer - Maintenance 5/6 5/13 30. Kristin Murphy Summer- Maintenance 5/5 5/13 31. Joel Ouellet Summer- Maintenance 6/6 6/13 32. Joseph Barmgartner Summer - Grounds 4/4 4/13 33. Brenda Turcotte Summer - Grounds 5/6 5/13 34. David Black Senior Camp Leader 5/7 5/13 35. David Kelly Senior Camp Leader 6/6 6/13 36. Jen Pinder Senior Camp Leader 6/6 6/13 37. Claire Szczepski Assistant Camp Leader 6/7 6/13 38. Steven Oates Assistant Camp Leader 1/1 1/13 39. Katherine Berg Assistant Camp Leader 5/5 5/13 40. Shelley Blumhagen Assistant Camp Leader 6/6 6/13 41. Brian Kienitz Assistant Camp Leader 6/7 6/13 42. Matthieu Lappin-Fortin Assistant Camp Leader 6/6 6/13 43. Erin Oates Assistant Camp Leader 6/6 6/13 The College maintained that the first 20 employees (Szponarski to Jotham) were engaged in peak part-time activity, and that the next 23 employees (Vinandy to 13 Oates) were summer students, the latter 10 (Black to Oates) being employed as camp Counsellors. The grievance, which was filed in January, 2000, claims a violation of Article 5.4.3 of the collective agreement, among other matters, and seeks dues deduction and bargaining unit rates for part-time employees working in excess of 24 hours per week. In its third step reply to the grievance dated February 24th, the College acknowledged that part-time employees are those who are regularly employed for 24 hours per week or less. Moreover, although part-time employees have worked in excess of 24 hours per week when engaged in peak part-time activity, such as in the Bookstore and Registrar's Office, as there was no continuity to the increased hours, the College took the position that the regular work week for these employees was 24 hours. The College also indicated that where the hours of work exceeded 24 per week on a regular, ongoing basis, part- time positions have been converted to full-time. Finally, the College indicated that it would continue to review instances with the Union in which employees predominantly worked more than 24 hours per week for a number of months. However, the College took the position that, in the instant case, there was no violation of the collective agreement. Some three weeks later, on March 17th, Ms. Krotz sent an e-mail to the Union advising of the need to assign part-time Drivers in International Education in excess of 24 hours per week for periods from March 5th to April 8th 14 " and from April 23rd to May 13th in order to transport groups of. Japanese. exchange students in attendance at the College. Although the College characterized this as peak part-time activity, the Union did not consider this activity to come within the ambit of peak part-time activity (which took place in other departments at more predictable intervals). Moreover,' according to Ms. Jensen, in the past when the College proposed to assign part-time employees in excess of 24 hours per week, the Union was given an opportunity to discuss the matter prior to implementation. However, in this case, notwithstanding a grievance filed in January respecting the excessive use of part-time hours, the Union was simply told that Drivers were being scheduled in excess of 24 hours per week, which the Union considered to be in violation of the collective agreement. In any event, on March 20th, in response to Ms. Jensen's inquiry, Ms. Krotz indicated that dues would not be deducted for International Drivers, as there was no continuity to the increased hours, which were of limited duration. Subsequently, by e-mail dated March 23rd, Ms. Jensen and Mr. Randall advised Ms. Krotz that, if the College followed through with its intention to schedule Drivers in International Education in excess of 24 hours per week, the Union would file a grievance. By e-mail of the same date, Ms. Krotz reiterated that the International Education Drivers would be working approximately 40 hours per week for each of the two periods in question and that, in the prior 13-week period, i.e., from October 24, 1999 to January 22, 2000, the Drivers had worked 15 only two weeks, one for 23% hours and the other for 8% hOurs. Ms. Krotz also. inquired as to why another grievance would be filed in respect of an issue that had already been grieved and referred to arbitration. Mr. Randall responded, in effect, that there were ongoing violations of the collective agreement regarding the scheduling of part-time employees in excess of 24 hours per week, which the Union felt obliged to grieve. Accordingly, a grievance in relation to the scheduling of Drivers in International Education in excess of 24 hours per week was filed on April 3, 2000. For her part, Ms. Wallace testified that she understood that the grievances were filed in response to "chronic abuse" of part-time hours, particularly in International Education where part-time Drivers were scheduled in excess of the permissible hours both under the collective agreement and the Employment Standards Act. Ms. Wallace further testified that, whenever the Union raised an abuse of part-time hours, the parties were generally able to work out an arrangement to deal with the matter. However, the Director of International Education did not appear to recognize abuse in relation to the assignment of International Drivers. When the extent of the abuse became apparent, the Union decided, in effect, that it would no longer acquiesce in the assignment of part-time employees in excess of 24 hours per week and resolved to take a firm stand with respect to the excessive use of part-time hours. " 16 In any event, as with the earlier grievance, the second grievance. claims a violation of Article 5.4.3 of the collective agreement, among other matters, and requests bargaining unit rates and dues deduction for part-time employees working in excess of 24 hours per week. The third step grievance reply dated May 11th, which is to the same effect as the reply to the earlier grievance, provides, in its material portion: ... Of specific concern is the driver activity in the International Education Department which I outlined in an e-mail message to the Union dated March 17, 2000. Part-time support staff employees at the College are regularly employed for 24 hours per week or less; 24 hours per week or less is the predominant work schedule. The driver in the International Education Department does exceed 24 hours per week in a very sporadic manner, the period of time exceeding 24 hours per week is of limited duration, and there is no continuity to the increased hours. At the hearing I reviewed driver activity for the period commencing February 1999 through to May 2000 to demonstrate the sporadic nature of the work, and the fact the driver is not regularly employed in a continuous manner over 24 hours per week. Between February 1999 and May 2000, a period of some 16 months, driver activity exceeded 24 hours per week for approximately 22/23 weeks in total, i.e. February/March 1999, July/August 1999, and March/April/May 2000. For the rest of this 16-month period, there was either no activity at all, or if there was some activity, it was less than 24 hours per week. We have had several conversions from part-time to full-time status over the past years, where the hours were in excess of 24 per week on a regular, ongoing basis. We feel we have endeavoured to review, discuss and fairly resolve these situations with the Union where the predominant work schedule is regularly greater than 24 hours per week for a number of months, and we will continue to do so. We do not believe that we are in violation of Article 5.4.2 [sic], Remittance of Dues, for the reasons we discussed at the hearing and which are outlined in this response; therefore your grievance is denied. Consistent with her reply to the grievance, Ms. Krotz characterized the assignment of excess hours to Drivers in International Education as sporadic in nature and of limited duration. As well, Ms. Krotz did not accept that the International Drivers and, Mr. Ferdinand, in particular, were regularly employed for more than 24 hours per week, as there were weeks in each of the 13-week periods in which they did not work at all. In addition to the list of peak part-time activity from July 25 to October 23, 1999, which formed the basis of the first grievance, the Union submitted data in relation to the 13-week periods from April 25 to July 24, 1999, which predated the filing of the grievance, and from October 24, 1999 to January 22, 2000; January 23 to April 22, 2000; April 23 to July 22, 2000; and July 23 to October 21, 2000. These data, in addition to the data for the period from July 25 to October 23, 1999, are set out below. It should be noted that, without prejudice to the College's position that weeks worked in excess of 24 hours ought to be expressed as a fraction of the 13-week periods in question, for ease of reference, these data reflect the number of hours worked in excess of 24 per week as a fraction of the number of weeks actually worked by individual employees. As well, the data include names of employees who worked in excess of 24 hours per week for some or all of one or more 13-week periods. As some of these employees were included only on lists subsequent to October 23, 1999, there are employees identified in these data who are not included in the original 43. employees, whose circumstances led to the filing of the first grievance. Name Classification Apr. 25- July 25- Oct. 24/99- Jan. 23- Apr. 23- July 23- July 24/99 Oct. 23/99 Jan. 22/00 Apr. 22/00 July 22/00 Oct. 21/00 1. R. Szponarski Office 9/12 8/13 converted to full-time position Services Assistant 2. M. Ferdinand Driver/ 2/2 5/8 4/5 8/10 5/10 International Education 3. D. Lichty Driver/ 2/4 4/4 International Education 4. R. Schaaf Driver/ 4/4 6/10 International Education 5. F. Schatz Driver/ 4/6 International Education S. Schultz Driver/ 1/1 1/1 International Education 7. L. Schmidt Clerk 2/2 General 8. I. Bennett Clerk 4/11 General 9. L. Collison Clerk 2/9 General 10. S. Cromwell Clerk 5/11 General 11. D. Lavigne Clerk 2/13 General 12. M. Godbout Clerk 2/6 General 13. A. Lowe Clerk % General 14. J. Mollame Clerk 2/3 General 15. K. Pialagitis Clerk 2/7 General 16. C. Dwyer Clerk 6/12 Supply ~ C. Johnston Office 4110 2/12 4/13 Services Worker 18. R. Santos Shift 4/9 3/5 Attendant 19. R. Wilson Technician 11/11 4/4 6/12 20. S. Jotham General 5/13 2/12 4/13 Maintenance Worker 21. J. Vinandy Technician 10/11 6/13 22. M. Fetter General 1/2 5/5 Maintenance Worker 23. S. Parsons General 2/2 6/6 Maintenance Worker 24. D. Keil Plate 4/5 Cutter 25. G. Fejerpataky Mechanical 5/11 26. T. Godfrey Mechanical 5/7 27. J. Hutchinson Mechanical 1/1 S. Kempel Mechanical 5/11 ,_,,~ P. Danbrook Summer- 5/6 Maintenance 30. K. Murphy Summer- 5/5 Maintenance 31. J. Ouellet Summer- 6/6 Maintenance 32. J. Barmgartner Summer- 4/4 Grounds 33. B. Turcotte Summer- 5/6 Grounds 34. D. Black Senior Camp 3/5 5/7 Leader 35. D. Kelly Senior Camp 3/5 6/6 3/4 6/6 Leader 36. J. Pinder Senior Camp 3/4 6/6 2/3 5/6 Leader 37. C. Szczepski Assistant/ 3/4 6/7 3/4 6/6 Senior Camp Leader 38. S. Oates Assistant 1/1 Camp Leader '~ K. Berg Assistant 3/4 5/5 , Camp Leader 40. S. Blumhagen Assistant 3/4 6/6 Camp Leader 41. B. Kienitz Assistant 3/4 6/7 1/1 7/7 Camp Leader 42. M. Lappin- Assistant 3/4 6/6 3/4 5/6 Fortin Camp Leader 43. E. Oates Assistant 3/4 6/6 3/4 6/6 Camp Leader 44. S. Kupina Marker 2 1/1 45. W. Stanley Clerk 1/9 General 46. C. Turner Clerk 2/9 2/10 General 47. S. Herron Clerk 9/13 7/13 General 48. C. Dimt Driver 1/3 International Education 49. J. Schaaf Driver 1/4 2/4 International Education · C. Buckingham Assistant 3/4 6/6 Camp Leader 51. C. Carmichael Assistant 3/4 6/6 Camp Leader 52. J. Feddema Assistant 1/1 Camp Leader 53. E. Marshall Assistant 2/3 5/6 Camp Leader 54. J. Neilly Junior 10/12 Maintenance 7/10 55. C. Bailey Office Services Worker 1/1 56. V. Ha Office Services Worker 4/13 57. K. Stryker Support Services Officer 1 2/9 58. L. Yantzi Clerk General 21 -' A. Hatt General 4/13 Maintenance Worker Submissions for the Union Although the Union did not take issue with the assignment of part- time employees in excess of 24 hours per week in certain circumstances, namely, (1) on a regular, recurring, basis (referred to as peak part-time activity) or (2) on an irregular basis (in response to an emergency or particular need), some time in 1999, the Union noticed an increase both in the number of part-time employees working in excess of 24 hours per week and in the number of hours worked by these employees. Accordingly, although the Union had been flexible and co-operative in regard to these assignments, it came to the conclusion that its co-operation was being abused. The Union, therefore, resolved to take a stand on this issue and filed the current grievances claiming that the assignment of pad-time employees in excess of 24 hours per week resulted in the inclusion of these employees within the bargaining unit. As to the scope of the first grievance, the Union submitted that there was an ongoing issue with respect to the assignment of part-time hours and that this was a continuing grievance, which encompassed the employees identified on all of the lists submitted in evidence (including those which post- dated the grievance). As well, there was a second grievance, dealing with the 22 scheduling of Drivers in International Education, which the College characterized as peak part-time activity. For its part, however, the Union felt that the subject- matter of the second grievance did not come within the ambit of peak part-time activity, which had not been made an issue of in past because of its predictable and short-term nature. The Union submitted that the employees encompassed by the grievances were "regularly employed" in excess of 24 hours per week and, therefore, come within the scope of the bargaining unit. The Union further submitted that an employee is "regularly employed" in excess of 24 hours per week when the employee works more than 50% of the relevant time frame in excess of these hours. As to the relevant time frame, the Union suggested three alternatives: (1) a seven-week period, which is the time frame used by the Ontario Labour Relations Board ("OLRB") to determine the scope of the bargaining unit for certification applications and which, it was submitted, has been adopted by Arbitrators in determining the scope of inclusions within the bargaining unit; (2) a two-month time frame, which is the minimum period of employment necessary for inclusion on the list of part-time employees provided under Article 4.3, which suggests that these are the employees in whom the. Union has a legitimate interest; or (3) a four-month time frame, which is the interval at which part-time lists are required to be provided by the College, which suggests that the parties have contemplated that four months is a reasonable period of time in which to determine whether an employee is included within the bargaining unit. The Union further submitted that it is not the regularity of employment which establishes whether an employee is included within the bargaining unit, but rather whether, when required to work, the employee regularly works full-time hours, namely, in excess of 24 hours per week. In other words, it was submitted that it is not the number of weeks worked in excess of 24 hours within the relevant time frame, but rather the number of weeks in excess of 24 hours in relation to the number of weeks actually worked, which determines inclusion within the bargaining unit. In this case, it was submitted that, when the employees in question were working, they worked full-time hours, i.e., in excess of 24 hours per week, over any of the relevant time frames and, therefore, ought to be included within the bargaining unit, even if they do not work regularly throughout the year. By way of remedy, the Union requested a declaration and an order that the employees in question be paid bargaining unit rates and subject to dues deduction. Submissions for the College The College submitted that there are two types of part-time employees who occasionally work in excess of 24 hours per Week, (1) students who work as Camp Counsellors for two months in the summer; and (2) employees whose hours "spike" either at the start of a semester or to meet the demands of the International Education Department. As to the scope of the grievances, the College submitted that the first grievance is limited to the 43 employees identified by Ms. Jensen as having worked in excess of 24 hours per week for the period from July 25 to October 23, 1999 and the second, to Drivers in International Education. Neither of these grievances, it was submitted, can be expanded beyond its original scope, particularly as there was no discussion of additional employees in the grievance procedures. Accordingly, it was submitted that additional employees and, in particular, students, are not encompassed by the grievances at hand. As to the merits of the grievances, the College submitted that, in interpreting the collective agreement, it is necessary to give effect to the parties' understanding within the College sector. Accordingly, it was submitted that the arbitral jurisprudence from outside the College sector is of no assistance in deciding this matter. Within the College sector, it is generally understood that a person is "regularly employed" in excess of 24 hours per week who is 25 continuously employed for more than 24 hours per week'over a considerable. period of time and whose hours are not subject to fluctuation. It was further submitted that, in deciding whether a person is regularly employed, it is necessary to consider a continuum, rather than a fixed period of time, as well as the amount of time within that continuum worked in excess of 24 hours per week. However, in the College sector, it is not appropriate to select a seven-week period, which is used by the OLRB in determining whether an employee is regularly employed over a threshold number of hours in the industrial sector. Moreover, there is no basis under the collective agreement for selecting a two- month or four-month period, which is referred to in Article 4.3 for an entirely different purpose. It was further submitted that, in deciding whether an individual was regularly employed over a continuum (or even over a 13-week period, which is the period covered by each of the part-time lists), it is necessary to consider not just the weeks worked, but also the entire period in question. Finally, it was submitted that, in this case, there were no instances of individuals being continuously employed in excess of 24 hours per week over a 13-week period and certainly not over the continuum represented by the data submitted. In the alternative, if the collective agreement were found to be ambiguous, it was submitted that the collective agreement should be interpreted in light of the practice of creating full-time positions where there are sustainable full-time hours over a considerable period of time. In the further alternative, it was submitted that the Union was estopped from asserting that the individuals in 26 question are included within the bargaining unit. Nevertheless, as.this is a. provincial collective agreement, in order to promote clarity and consistency among the colleges, the College urged the Board to decide this matter on the basis of the language of the collective agreement, rather than on the practice which has developed at one particular college. Finally, it was submitted that, were the grievances to be allowed, remedy must be confined to the applicable period for the filing of a grievance under the collective agreement and dues would have to be recovered from the individuals found to be employees under the collective agreement and not from the College. Reply Submissions for the Union As to the scope of the grievances, the Union submitted, in effect, that it is not open to the College to object to the inclusion of additional employees, as the College was aware that there was an ongoing issue with respect to the use of part-time employees and discouraged the Union from filing further grievances. The Union further submitted that the issue on the merits is whether the employees in question were regularly employed in excess of 24 hours per week and not whether there were sustainable full-time positions. Accordingly, it was submitted that the sporadic nature of the work, which may impact on the conversion of a part-time to a full-time position, is not relevant for the Board's determination. Moreover, contrary to the College's assertion that the hours of work of an employee who is "regularly employed" are not subject to 27 fluctuation, all of the tests which have been posited for determining whether an. employee is "regularly employed" in excess of a threshold number of hours (in this case, 24 hours per week) are based on the employee's working more than 50% of the time in excess of these hours, which necessarily takes into account fluctuations in hours. As well, as the work in question was performed mid-term, the Union took issue with the inclusion of summer students and Drivers in International Education within the ambit of peak part-time activity, which takes place at the start of a semester. With respect to past practice, although there was evidence that the Union failed to file a grievance in circumstances where employees were working in excess of 24 hours per week and excluded from the bargaining unit, there was also evidence of employees working in excess of 24 hours per week being paid bargaining unit rates and subject to dues deduction. Accordingly, it was submitted that the evidence fails to establish a consistent practice which can be used an as aid to the interpretation of the collective agreement or form the basis of an estoppel. Further, with respect to estoppel, it was submitted that there was no evidence of detrimental reliance. In any event, even if estoppel could be established, the Union submitted that it was brought to an end by the filing of the first grievance. More importantly, however, the Union submitted that estoppel is not applicable to the case at hand, which involves the interpretation of a statute as well as the collective agreement. 28 Decision The issue in this case, which is common to both grievances, is whether the assignment of part-time employees in excess of 24 hours per week resulted in their inclusion in the bargaining unit. Although the first grievance covers some 43 part-time employees identified by the Union as having worked in excess of 24 hours per week for the period from July 25 to October 23, 1999 and the second, Drivers in International Education, the Union took the position that there were continuing, or ongoing, breaches of the collective agreement with respect to the assignment of part-time employees in excess of 24 hours per week and, therefore, that the Board's jurisdiction extends to breaches of the collective agreement in relation to all of the employees identified on the part-time lists tendered in evidence (some of which post-date the grievances). Although the College did not object to the Board's jurisdiction to consider alleged breaches of the collective agreement which post-date the grievances with respect to employees covered by the two grievances, it did object to the Board's jurisdiction to deal with alleged breaches of the collective agreement in relation to other employees. It seems clear, however, that the College attempted to dissuade the Union from filing further grievances. In fact, when advised of the Union's 29 intention to file the second grievance dealing with Drivers in International. Education, Ms. Krotz inquired as to why another grievance would be filed with respect to an issue, namely, the excessive use of part-time hours, which had already been grieved. Although the Union filed the second grievance notwithstanding Ms. Krotz's inquiry, in light of its attempt to discourage the filing of subsequent grievances, the College can scarcely complain that further grievances were not filed. In these circumstances, the Board is satisfied as to its jurisdiction to consider alleged breaches of the collective agreement, including those which post-date the grievances, in relation to the additional employees included on the part-time lists tendered in evidence. As to the merits of the grievances, under Article 1.1 of the collective agreement, the Union is recognized as the Bargaining Agent for "all Support Staff employees" of the College with certain exemptions, including "persons regularly employed for twenty-four (24) hours per week or less", commonly referred as part-time employees. Accordingly, it would appear that, so long as they are not excluded under some other exemption, persons regularly employed in excess of 24 hours per week are included within the bargaining unit. In this case, there was no dispute that, from time to time, part-time employees were assigned in excess of 24 hours per week. The real issue is whether, by virtue of these assignments, these employees were "regularly 3O employed" in excess of 24 hours per week and, therefore, included within the. scope of the bargaining unit. With regard to this issue, the Union made two principal submissions: (1) that the Board must consider whether an employee has worked more than 50% of the relevant time frame in excess of 24 hours per week and, for this purpose, posited three alternative time frames for the Board's consideration; and (2) that, within the relevant time frame, it is not the regularity with which an employee works, but rather the employee's regular hours when required to work, which determine whether the employee is included within the bargaining unit. Two of the time frames posited by the Union (two months and four months) are drawn from the collective agreement, whereas the third time frame (seven weeks), which was really the Union's primary submission, is derived from the OLRB jurisprudence. As to the seven-week period, the practice of the OLRB in relation to certification applications has been to consider the seven weeks immediately prior to the date of the application as a representative period for assessing the number of hours worked by employees and, therefore, establishing the list of employees in the full-time and part-time bargaining units: see, e.g., Elizabeth Fry Society of Ottawa [1985] OLRB Rep. July 1026 (the "Elizabeth Fry" case). Although the so-called "seven-week rule" is, in a sense, arbitrary, it has been taken into account by Arbitrators in assessing whether or not employees 31 were "regularly employed" in excess of a threshold number'of hours established. under the collective agreement for inclusion in the bargaining unit: see, e.g., Re Atikokan General Hospital and Service Employees' International Union (1974), 7 L.A.C.(2d)330 (Aggarwal); Re We#and District Association for Retarded Inc. and Canadian Union of Public Employees, Local 227'6 (1982), 5 L.A.C.(3d)315 (Devlin); Re Salvation Army Grace Hospital and Ontario Public Service Employees Union, Local 142 (1987), 31 L.A.C.(3d)I (Brandt) (the "Salvation Army Grace" case) referred to in Hospital for Sick Children v. Canadian Union of Public Employees, Local 2816 (Regular Employees Grievance) [1999] O.L.A.A. No. 1004 (Charney) (the "Hospital for Sick Children" case). In none of these cases, however, was the application of the seven-week rule determinative of inclusion within the bargaining unit. Instead, the cases analysed the pattern of employment over a longer period of time in order to determine whether the employees in question were regularly employed in excess of a threshold number of hours. As to the other periods posited by the Union, the fact that two months of continuous employment is identified under Article 4.3 as the minimum period for inclusion on the list of part-time employees, does not, in our view, provide a sufficient basis upon which to conclude that this is an appropriate time frame to be considered for inclusion in the bargaining unit. Under the same provision, however, four months is established as the interval at which, in response to a written request from the Local Union, part-time lists are required to 32 be produced. Furthermore, if requested within 10 days of'receipt of such lists,. the College is required to provide an explanation for assigning work on a full-time or part-time basis and to consider representations which the Local Union may make respecting these assignments and the feasibility of converting part-time into full-time assignments. Given the relevance of these lists t° the determination of whether work is properly assigned on a full-time or part-time basis, in our view, the interval at which part-time lists are provided may be an appropriate time frame for determining whether an employee is included within the bargaining unit. Although the collective agreement requires that lists be provided, on request, at four-month intervals, at this College, lists are, in fact, provided at 13-week intervals, apparently without objection from the Union. Accordingly, if an employee's hours of work are relatively stable, 13 weeks seems an appropriate period for determining an employee's inclusion in the bargaining unit, whereas, if the employee's hours are subject to fluctuation, a longer period may be considered. See, in this regard, Re Niagara College and Ontario Public Service Employees Union; Union Grievance, July 30, 1993 (Devlin (unreported)) (the "Niagara College" case), wherein it was stated at page 12 that "in cases where an employee's hours of work are subject to ongoing fluctuation, a Board of Arbitration may take into account a considerable period of employment with a view to determining whether the employee regularly works a specified number of hours per week". Although that statement was an obiter dictum, as the hours of work of the grievor in that case, who was continuously employed for more than 33 24 hours per week in excess of nine months, were not subject to fluctuation,' nevertheless, in the Board's view, this approach commends itself. Apart from the appropriate time frame, the Union submitted that it is not the regularity of employment which establishes whether an employee is included within the bargaining unit, but rather whether, when required to work, the employee regularly works full-time hours, namely, in excess of 24 hours per week. In other words, it was submitted that it is not the number of weeks worked in excess of 24 hours within the relevant time frame, but rather the number of weeks in excess of 24 hours in relation to the number of weeks actually worked, which determines inclusion within the bargaining unit. The issue of regularity was addressed in The Metropolitan General Hospital and Service Employees' Union, Local 210; Grievances of Laporte and Meloche, January 21, 1985 (Brandt (unreported)) (the "Metropolitan General' case), referred to in the Hospital for Sick Children case. In the Metropolitan General case, the grievors, who were "half-time" employees, claimed that they were "regularly employed" as full-time employees (having worked a minimum of 37% hours per week). The basis for the grievors' claim was that over an 18- month period, there were a number of bi-weekly pay periods in which they had worked in excess of 37% hours per week. In denying the grievors' claim for full- time status, the board stated: " 34 In assessing whether or not the [g]rievors were 'regularly~ employed as full-time employees, it is not, in our opinion, sufficient to limit the examination to the number of pay periods during which they met the minimum threshold. It is also necessary to consider the regularity of that employment and the circumstances in which the [g]rievors came to be employed in each instance. Although that case dealt with periods of time during which the grievors worked in excess of 37% hours per week, punctuated by lengthy periods when they worked less than full-time hours, as opposed to periods in which they did not work at all, nevertheless, in our view, the board's rationale is appropriate to the case at hand. Furthermore, in denying the grievors' claim, the board also took into account that the grievors were used to provide relief for full-time employees, which was not a factor in the Salvation Army Grace case, .in which the same chair also took into account the pattern, or regularity, of the grievor's employment in determining her claim for full-time status. Although the OLRB suggested in Elizabeth Fry that it is not the regularity with which an employee works, but rather, the employee's regular hours when required to work, which determine inclusion within the bargaining unit, that case dealt with the question of whether relief workers who worked less than 24 hours per week on a sporadic basis were included on the list of employees in the part-time (rather than the full-time) bargaining unit for purposes of determining the count on a certification application. In Stratford Shakespearean Festival Foundation of Canada [1984] OLRB Rep. Dec. 1778 (the "Stratford Festival" case), in the context of a certification application, the 35 OLRB found that individuals were included on the list of employees for the full-. time bargaining unit because, although they worked only periodically throughout the year, "whenever they [were] required to work, they regularly [worked] more than 24 hours per week". Although the Stratford Festival case dealt with the question of whether an employee ought to be assigned to the full-time or part- time bargaining unit, in dealing with a certification application, the OLRB has other determinations to make, including whether an individual has a sufficient connection to the workplace to be eligible to vote (or, under the predecessor legislation, to be included in the count), which may involve consideration of the regularity of the individual's employment, among other matters. Accordingly, in our view, the decisions relied on by the Union ought not to be taken as precluding an examination of the regularity of an individual's employment for the purpose of determining whether the individual is "regularly employed" in excess of a threshold number of hours and, therefore, included within the bargaining unit under the collective agreement. As a measure of regularity, it seems that consideration should be given to the hours worked by the employees in question in excess of 24 per week, not in relation to the number of weeks actually worked by individual employees, but in relation to the entire time period under review. In this case, pad-time lists were submitted covering six 13-week periods, for a total of 78 weeks or 18 months. For the 43 employees covered by the first grievance, it seems that during the 13-week period from July 25 to October 23, 1999, which is 36 the period upon which the Union based its decision to file a grievance; with the. possible exception of/~osernary Szponarski, none of these employees met the threshold requirement of having worked more than 50% of the time in excess of 24 hours per week. Although Ms. Szponarski would appear to have met this requirement, having worked eight out of 13 weeks in the relevant period, the evidence indicated that her position was converted to full-time. It is unclear, however, whether Ms. Szponarski also attained full-time status. That information would assist the Board in determining the validity of the Union's claim in relation to Ms. Szponarski. Nevertheless, as the hours of work of these employees were subject to fluctuation, it would seem appropriate to examine a longer period than 13 weeks as well. Even taking into account the period from April 25 to July 24, 1999, which predates the data upon which the first grievance was based, and the subsequent period for which data were provided, apart from Ms. Szponarski, none of the original 43 employees would appear to have been employed for more than 50% of the time in excess of 24 hours per week. As to particular employees, although Brian Kienitz worked seven weeks in excess of 24 hours in one 13-week period (July 23 to October 21, 2000), he worked less than 50% of the time in excess of 24 hours per week in three other 13-week periods (one of which was July 25 to October 23, 1999, which is the period upon which the decision to file the grievance was made). Even excluding two 13-week periods (October 24, 1999 to January 22, 2000 and January 23 to April 22, 2000) in which he did not work at all (on the assumption that, as a camp counsellor, he. was not employed during these periods), nevertheless, the pattern of his employment does not support the conclusion that he ought to have been included in the bargaining unit. Further, although Jason Vinandy and Robin Wilson worked 10 weeks and 11 weeks, respectively, in the period from April 25 to July 24, 1999, in the subsequent 13-week period in respect of which the decision was made to file a grievance (July 25 to October 23, 1999), neither worked more than 50% of the time in excess of 24 hours per week. As well, neither would appear to have worked in the next three 13-week periods. The data indicate that, in the following period (July 23 to October 21, 2000), Mr. Wilson worked six out of 13 weeks. Further, there was some indication in the payroll records that Mr. Vinandy might also have worked during this period, albeit for less than 50% of the time in excess of 24 hours per week. Accordingly, even if Mr. Vinandywere considered to be a summer student (which was the College's characterization) and, therefore, not employed (as opposed to being employed, but not working) from October 24, 1999 to July 22, 2000, the pattern of his employment does not support the conclusion that he satisfied the threshold requirement for inclusion in the bargaining unit. Although there was no suggestion that he was a summer student, a similar conclusion is reached with respect to Mr. Wilson. Leaving aside whether Mr. Wilson was employed from October 24, 1999 to July 22, 2000, the data indicate that he worked in excess of 24 hours per week for more than 50% of the time in only one 13-week period out of three, this being the period. which predated the data upon which the decision was made to file a grievance, which is insufficient to support a claim for his inclusion in the bargaining unit. As to the Drivers in International Education, five (Michael Ferdinand, Dennis Lichty, Ronald Schaaf, Frank Schatz and Sharon Schultz) are covered under the first grievance. When one examines the 13- week period under consideration in relation to the first grievance (July 25 to October 23, 1999), it is apparent that none of these Drivers satisfied the threshold requirement of having worked more than 50% of the time (seven out of 13 weeks) in excess of 24 hours per week. Moreover, even if one were to cOnsider a longer period (which would encompass the two periods of intense driving activity in connection with foreign exchange students, namely, March 5 to April 8, 2000 and April 23 to May 13, 2000), none of the five Drivers in question would appear to have been regularly employed in excess of 24 hours per week. Although Mr. Ferdinand, in particular, worked for at least part of four of the five 13-week periods under consideration, he was regularly employed in excess of 24 hours per week for only one of these periods (April 23 to July 22, 2000). Moreover, when one considers the pattern of his employment (consisting of between two and five weeks in which he worked in excess of 24 hours per week in each of the other 13-week periods, interspersed with weeks of 24 hours or less and weeks in which he did not work at all), it cannot be concluded that a proper basis has been established for his inclusion in the bargaining unit. The remaining International Drivers (Christa Dimt and Jean Schaaf) are covered by the second grievance, which was filed on April 3, 2000 in respect of the intensive periods of driving activity from March 5 to April 8, 2000 and April 23 to May 13, 2000. Even if one were to isolate the two 13-week periods which encompass these periods of driving activity, it seems that neither of these Drivers satisfies the requirement for inclusion in the bargaining unit. In particular, the data indicate that, in the period from April 23 to July 22, 2000, Ms. Dimt worked three out of 13 weeks, one of which was in excess of 24 hours. In the same 13-week period, Ms. Schaaf worked four weeks, one of which was in excess of 24 hours, subsequent to which she worked four out of 13 weeks, two of which were in excess of 24 hours per week. The final group of employees (Steven Kupina to Sylvia Herron and Christina Buckingham to Ann Hatt) are neither International Drivers nor are they covered by the first grievance. When the data are taken into account, it seems clear that few, if any, of these employees worked more than 50% of the time in excess of 24 hours per week. Moreover, when consideration is given to a longer period, or even the entire period for which data were submitted, the same conclusion is reached. As to particular employees who might have satisfied the threshold requirement for inclusion in the bargaining unit, the data which were submitted by the Union with respect to Ms. Herron indicate that she wOrked nine out of 13. weeks in excess of 24 hours in the period from January 23 to April 22, 2000; that she did not work at all in the next 13-week period; and that she worked seven out of 13 weeks in excess of 24 hours in the period from July 23 to October 21, 2000. Although there was some indication in the payroll records that Ms. Herron might have worked during an earlier period as well, the information in that regard was unclear. The Board, therefore, requests clarification in order to determine whether or not Ms. Herron met the threshold requirement for inclusion in the bargaining unit. Similarly, although the data submitted by the Union indicate that Charlene Bailey worked seven out of 13 weeks in excess of 24 hours per week in the period from July 23 to October 21, 2000, the payroll records suggest that she might have worked during an earlier period as well. As with Ms. Herron, that information was not entirely clear and the Board requests clarification in order to determine the claim for Ms. Bailey's inclusion within the bargaining unit. There was also some confusion with respect to John Neilly. Although data submitted by the Union indicate that he worked 10 out of 13 weeks in excess of 24 hours in the period from April 23 to July 22, 2000, the College data indicate that he worked only two weeks in that period, one of which was in excess of 24 hours. The Board, therefore, requests clarification in relation to this matter, as well as information as to whether Mr. Neilly was a support staff employee of the College prior to April 23, 2000 or subsequent to July 22, 2000 (or thereabouts), in order to. determine the claim for his inclusion within the bargaining unit. In summary, the Board is not persuaded that the majority of employees included on the part-time lists produced in this matter satisfied the criterion for inclusion in the bargaining unit. The Board remains seised with respect to claims in relation to Ms. Herron, Ms. Bailey, Mr. Neilly and Ms. Szponarski, in respect of whom additional information is requested. In the event that any, or all, of these claims succeed, the Board will address the issue of estoppel, which was raised by the College. Accordingly, the Board retains jurisdiction pending final resolution of this matter. DATED AT TORONTO, this/¥V~'d~ay of Ju~, 2002. College Nominee Nominee