HomeMy WebLinkAboutUnion 17-06-13IN THE MATTER OF AN ARBITRATION
Pursuant to the Colleges Collective Bargaining Act,
BETWEEN:
SENECA COLLEGE
(“College”)
- and –
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION
(“Union”)
(Grievance #2015-0560-002 – Partial Load Employees
- Preliminary Motion)
ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Dan Michaluk, Counsel, Hicks Morley Hamilton Stewart Storie, LLP
Gillian Maharaj, Student-at-Law, Hicks Morley Hamilton Stewart Storie, LLP
Karen Tobin
Amy Hsiung
Moshi Ferdaus
On Behalf of the Union:
David Wright, Ryder Wright Blair & Holmes, LLP
Jonathan Singer, President, OPSEU, Local 580
This matter was heard on April 12, 2017, in Toronto, ON.
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I. INTRODUCTION
1. This decision deals with the College’s preliminary motion seeking to have the Union’s
grievance dismissed on the basis there is no prima facie case.
2. On March 5, 2015, the Union grieved the College violated the collective agreement when
it “improperly moved and/or reclassified faculty positions” out of the bargaining unit. At
issue, the Union alleges, is work that was formerly performed by unionized partial-load
employees which was converted to non-union part-time and sessional positions. The
Union alleges this has had the effect of eroding the bargaining unit, resulting in an
approximate 10 to 15% reduction in bargaining unit membership.
3. The key provision upon which the Union relies is Article 1 of the collective agreement:
Article 1
RECOGNITION
1.01 The Union is recognized as the exclusive collective bargaining agency for
all academic employees of the Colleges engaged as teachers, counsellors and
librarians, all as more particularly set out in Article 14, Salaries, except for those listed
below:
(i) Chairs, Department Heads and Directors,
(ii) persons above the rank of Chair, Department Head or Director,
(iii) persons covered by the Memorandum of Agreement with the Ontario Public Service
Employees Union in the support staff bargaining unit,
(iv) other persons excluded by the legislation, and
(v) teachers, counsellors and librarians employed on a part-time or sessional basis.
NOTE A: Part-time in this context shall include persons who teach six hours per week or
less.
NOTE B: Sessional in this context shall mean an appointment of not more than 12
months duration in any 24 month period.
4. Partial load employees are covered by the bargaining unit, and defined in Article 26.01B
as teachers who teach more than six and up to and including 12 hours per week on a
regular basis.
II. Parties’ Submissions
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5. The College begins by noting that the collective agreement contemplates that teaching
work can be assigned to different classes of employees, some of whom are in the
bargaining unit, and others (part-time and sessional employees) who are not. The
delineation between the classes is based solely on the number of teaching contact hours
assigned.
6. While Article 2 requires preference for full-time positions over partial-load and sessional
positions, the College notes that there is no preference in the collective agreement given
to partial-load positions, which are the positions alleged to have been ‘converted’ to non-
bargaining unit positions.
7. The College reviewed the Union’s particulars highlighting that the Union’s case is
premised primarily on the fact of the change of assignments from partial-load positions to
part-time and sessional positions and the effect of this on its bargaining unit size. The
College does not dispute that it planned to reduce its use of partial load employees.
However, the College states that in the context of collective agreement language which
contemplates assignment of teaching work to different classes of employees (some of
whom are non-union), and given its exclusive management right to assign work and
determine complement, there is no basis to find that its actions are a violation of the
collective agreement.
8. The College asserts that its right to assign work between classifications can only be
limited through a specific restriction. Article 1, which addresses the scope of the
bargaining unit, is not sufficient to restrict the College’s right to assign. The College
submits that the only other way its actions could be impugned is if there was bad faith or
anti-union animus, and none is alleged in the present case. In fact, it is noted the Union
acknowledges that organizational need was a factor in the College’s decision, along with
cost-saving. The College asserts that the Union’s case is based solely on the effect of
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the College’s actions, which themselves are permissible and expressly contemplated
under the collective agreement.
9. The College relied on the following authorities: Elgin (County) – and – SEIU, Local 1
(2015), 249 L.A.C. (4th) 127 (MacDowell); Sault College – and – OPSEU (unreported,
May 18, 2016) (Parmar); Algonquin College – and – OPSEU, 2015 CarswellOnt 17161
(Jesin); Sir Sanford Fleming College - and – OPSEU, (unreported, January 14, 2016);
and Algonquin College – and – OPSEU (unreported, June 21, 2005) (Tacon);
10. The Union framed its submissions in light of the test for dismissal on a prima facie basis,
noting this is a low bar to be met, where the only issue is whether there is an arguable
case, and not whether it will succeed. The Union also notes that for the purposes of the
motion it must be presumed its allegations are true and will be proven, without regard to
any explanations offered by the Employer.
11. The Union asserts that what makes this case distinct is the breadth of the College’s
actions, which removed some 13% of the bargaining unit. It submits that the College’s
actions constitute a violation to the integrity of the bargaining unit, as set out in Article 1,
and that there is an implied restriction on an employer’s ability to undermine the
recognition clause. The Union submits it need not allege bad faith in the ‘traditional’
sense, but that it is sufficient that, as it alleges, the College set out to undermine the
bargaining unit and specifically move positions from the bargaining unit out of the
bargaining unit.
12. The Union relied on the following authorities: Fanshawe College – and – OPSEU
(unreported, September 28, 2015) (Davie); Sault College – and – OPSEU, 2012
CarswellOnt 17194 (O’Neill); Irwin Toy Ltd. – and – United Steelworkers (1982), 6 L.A.C.
(3d) 328 (Burkett); OPSEU – and- Crown (Ministry of Community and Social Services,
2001 CanLii 25777 (Brown); Laurentian University – and – Laurentian University Faculty
Association (unreported, May 12, 2015) (Steinberg); Sanofi Pasteur Limited – and –
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UNIFOR, Local 1701, 2014 CarswellOnt 12019 (Goodfellow); and Hydro Ottawa Ltd v.
I.B.E.W., Local 36, 2007 ONCA 292 (Ont. C.A.).
III. Analysis
13. The issue in this preliminary motion is only whether there is an arguable case. The
approach to follow is stated succinctly in Sault College, supra :
The question is whether there is a case to be met at all, which is assessed
without regard to the strength of the employer’s case, and assuming the
union’s assertions of fact are true and capable of proof. The arbitrator’s
task, on a motion challenging a grievance for want of a prima facie case, is
to look at the asserted facts, assuming them to be true and provable for the
purposes of the motion, and determine whether they are capable of
supporting the violation of the collective agreement alleged in the
grievance. Findings concerning any disputed facts are not made at this
stage.
14. The issue underlying this grievance is the assignment of work to non-bargaining unit
employees, as opposed to bargaining unit employees.
15. There is a widely accepted principle that, where certain conditions are met, there is an
implied restriction which prohibits the assignment of bargaining unit work outside of the
bargaining unit (see for example Irwin Toy Ltd, supra, and Hydro-Ottawa Limited, supra).
16. The College suggested that those cases do not apply to the present case, because this
collective agreement specifically contemplates the assignment of this work to non-
bargaining unit employees.
17. Whether or not they apply directly, it is useful to note the importance placed on
bargaining unit integrity which underlies the analyses therein. I observe that the implied
restriction has been held to apply even in cases where there are explicit provisions which
address the assignment of work outside the bargaining unit. As stated in Sanofi, supra, it
will take express language to displace this implied principle which flows from the
recognition clause and the basic obligation to apply the collective agreement to certain
categories of employees performing certain types of work.
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18. However, it has also been recognized that whether duties regularly assigned to
bargaining unit members overlap with duties regularly assigned to non-bargaining unit
employees is a factor that works against the success of a grievance challenging such an
assignment (see Crown (Ministry of Community and Social Services), supra).
19. The significance of the integrity of the bargaining unit was also a consideration in
Algonquin College, a case which is similar to the instant case in that it acknowledged that
the collective agreement specifically contemplates the assignment of work to part-timers
and thus the mere fact of such assignments is insufficient to establish a breach of the
collective agreement.
20. In that case, the union grieved the college’s staffing of certain courses with part-time
teachers rather than full-time teachers. Arbitrator Jesin considered closely another
decision involving those same parties. In the earlier case, Arbitrator Knopf had dismissed
a grievance which alleged the college had to give preference to full-timers over part-time
employees, stating the collective agreement contained no such limitation on the college’s
rights. However, she also stated that the result would have been different if there was
any evidence the staffing was “designed or intended to erode the bargaining unit or
circumvent the collective agreement”. Arbitrator Jesin held that this latter restriction was
implied from the entirety of the collective agreement (which is the same collective
agreement at issue before me). He accepted this implied restriction on management’s
right to staff, calling it trite law, and concluded the issue before him was whether the use
of the part-time teachers was intended or designed to avoid the college’s collective
agreement obligations, whether under Article 2 or under the collective agreement as a
whole. If that were the case, then a breach of the collective agreement would be
founded.
21. His considerations in determining whether that was the case included whether there was
evidence of an erosion of the bargaining unit and whether the staffing method sought to
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avoid assigning work to bargaining unit employees. He also stated operational
requirements may be relevant in determining the intention and/or bona fides of the
college. Ultimately, he found that no breach had been established.
22. Applying those principles to the instant case, I observe some 150 positions that were
formerly partial-load assignments in the 2012/2013 and 2013/2014 academic years were
eliminated in the 2014/2015 academic year. At the same time, there was an increase of
some 190 part-time and sessional employees in the 2014/2015 academic year from the
previous year. This is a significant erosion of the bargaining unit, but that in and of itself
is insufficient to establish a breach.
23. The Union has also alleged that the College directed all the Chairs not to hire partial-load
bargaining unit employees in Fall 2014.
24. It is arguable, in my view, that this direction, to specifically avoid bargaining unit
assignments, is a staffing method “designed or intended to erode the bargaining unit”.
The College may well have an explanation for its approach. However, I will have to hear
the evidence in order to assess it. The only information before me at this point, contained
in the Union’s particulars, is that the College publicly stated there was a reduction in total
teaching hours that year. I do not have any evidence to explain how that reduction led
exclusively to a reduction in bargaining unit assignments while non-bargaining unit
assignments were increased at the same time. In the absence of such, it is arguable that
the hours reduction is insufficient to explain how this staffing method, which allegedly
included a direction to not assign work to bargaining unit employees, was anything but
“designed or intended to erode the bargaining unit”.
25. As there is an arguable case, the Union has met its burden for the purposes of this
motion.
26. The College’s preliminary motion is dismissed. The grievance may be heard on its
merits.
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Dated this 13th day of June, 2017.
___________________
JASBIR PARMAR