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HomeMy WebLinkAboutUnion 84-03-27 .... \"' .. n'0 ry1\lv'- &6'1 IN THE MATTER OF AN ARBITRATION BETWEEN: THE ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY, FANSHAWE 'COLLEGE -AND- ONTARIO PUBLIC SERVICE EMPLOYES UNION BOARD OF A~BITRATIONI APPEARING FOR THE UNION: APPEARING FOR THE COLLEGE: 0) o }/5!; tt r .Il.t:- - "6;Z ()9 7 ()P5U"f t. OCAL.., J / (; HEA/J/Y5 /jAri;, - f'c<3. 2 o/~~ R. J. Delisle - Chairman Dean Gray - College Nominee Guy Beaulieu - Union Nominee RaJ Anand, Counsel M. Grunwell, Local Union President w. J. Hayter, Coun~el D. L. Busche, Personnel Officer - 1 - The Union grieves that an emplc.yee, one Zaven Di~hoyan, should have been recognized by the College as being entitled to. full time academic status and accor~ingly the College should have collected and remitted union dues in respect of his membership in the academic staff bargaining unit. Therm is no real dispute a~ to tho facts. Mr. Di9hoyan was ernployed at the C.:)ilege from April, 1976 to J...me, 1983. He was a technologist within the support staff bargaining unit working as an Audio Visual Technician in the Instructional EquipMent Servicing teaching Department. In A'JgIJst, 1981 he applied fot, a po:.st0d position in the Adult Education Centre of the Cc,llege. ') While unsuccessful in that application, during the course of the interview an idea emerged for another teaching .position in the area of business equipment servicing. He was offered and accepted a partial load position at the Centre in the Electricall Electronics Division expressing the hope that it might later le3d to a full time teaching position. It appears from the evidence that Mr. Dishoyan was left to his own devices to develop the course, gather appropriate reading materials and phYSically set up the necessary labs. His actual t~ach i ng hOl.lrs were th i rteerl h,:)ut~s per week blJt the evidence indicates that he spent an additional fifteen to eighteen hours per wee~. mat'Kirlg assignments and prepat~ing fO:rt~ class. Wh i Ie .') engaged in teaching he continued to carry on hi~ earlier duties as a technologist working a full load from 7:00 am to 3:00 pm each day; there was no reduction in hours worKed as a " .... 2 - technologist when he assumed his additional teaching duties. In 1)ecemb~r, 1982, the College advised him that it was not their intention to make the teaching position full-time and Mr. Dishoy~n therefore decided to give up his teaching dutiQ5. Irl Appel"ldix II to the Collective Agreement a partial~load employee is defined: I l(a). As t"'efert"'ed to ir. Section 3.0. (b) ,:;.f the Aqt"'eemer;t, ~ psrti~l-load employae io dofined UG Q to~chmr who teaches more than six(6) and up to and including thirtoon(13) hours par W~Qk on ~ rogul~r ba~iD. A partial - l':,ad employee is paid at arl hC".lrly rate, as opposed to salary for full-time, does not receive vacations, \ holidays or fringe benefits and no union dues are collected. ) Despite the definition in the agreement, the Union argues that objectively viewing Mr. Dishoyan's teaching duties he was not unlike other full-time members of the academic unit whose teaching duties were reduced to permit the performance of ancillary duties. Evidence was lec:! Qf (:jcadenric Cc'~:'t'c~inatc'l's in Mr. Dishoyan's DiviSion, full-time members of the academic unit, who taught less than thirteen hours per week. Orl t he Un i 0:1)".' S thesis any partial-load employee can be given full-time academic status if we qualitatively assess all his duties, teach i rig and o:,thet"'wise, and find a comparable match in the academic st~ff bat' 9 a i n i n~. u 1'"1 it. Was this what the parties intended? Cleat"'ly frOM the evidence of Mr. Dishoyan that was not his expectation. () He accepted the offer of a partial-load position hoping it would later be converted to full-time. While his expectations and the i r.t ent ion of "the College expressed at tl,e time at'e not - 3 - determinatve of the issue they are certainly relevant to the Sc:\Me. Was it the intention of the parties to the Collective Agt"eemel"lt? The Cc.lleges Collective Bargairlil"lg Act pt"ovidcs: l(b)."bat"gc:'lil"ling unit" r.1EUll"IS support staff bargaining Schedules 1 and 2; the academic staff unit of employes set Grl" J; tlE:1 OI.I!; irJ 1 (f). "employee" meal"IS a pers,.,Y" employed by a boat"d 1:lf governors of a college of ~ppliad arts and technology in a position or classification that io within tho academic ntaff bargaining unit or the support staff bargaining unit zet out in Schedules 1 and 2. The Union maintains th~t the Act did not contemplate employe~5 \ ; spilling over into both bargaining units and that Mr. Dish.:'yan rlll.\ s t be assigned to one or the other. Thet"e is hmoJevm', n':1 express prohibition in the nct against an employee acing a member ':If b.::.th. While the Union maintains Mr. Dishoyan was a teacher and came therefore within Schedule 1 there seems no reason to arbitrarily assign him to Schedule 1 as opposed to Schedule 2 if a choice in fact needs to be made. It is important to remember that throughout his teaching duties he maintainod full-time status as a technologist on the support staff. To adopt the metaphor of counsel for the College thero is rl':lt hi l"lg in the Collective Agreement which prevented the employee from wearing tw.:) hats; as a membet" of the Sl..lppl:.t~t ~taff il~1 the morning and as a member of the ~cademic st3ff in the ~ft~rnoon. The employee was not performing any academic duticG during hi~ (") . ) 37.5 hours a week as a full-time technologi~t. He t ':II:oIt. I:' n additional duties as a t(?,3.ch€~t", f"coj'" w~lich he \oJa~ sepc:wately paid, .' - 4 - but these additional duties do not characterize his earlier duties. The duties of each were quite distinct. The pat~ties teo the Collective Agreement chose to define partial-load employeo in terms of the nYm~~t of ~g~~blng hours. We cannot here change that definition into a subJective analysis of each employee's efforts in developing and preparing a particular course. Mr. Dishoyan was properly engaged as a partial-loader within the meaning of the Collective Agreement and therefore no union dues were forthcoming in respect to his teaching duties. It was slJggested iY"1 .at~gument by the Unic,n that a IOb'ue" pat~t ial-Ioadet' simply comes in and teaches from ass i gY"l~d ) materials developed by others; no: evidence was led to support that allegat ion. The Union relied on two recent awards: !:i~n!~~ 2nQ_E~nEb2~~_gQllgg~, Oct obet' 2'+, 1983 (Brunner), and ~!!i~_~n~ ~bgtiQ2n_gQl1~g~, May 30, 1983 (Brown). In each of those awards the arbitration board held that the employee was entitled to full-time academic status. Both awards are distinguishable. In each case the ernplc,yee was engaged as a pat~t ial-le.adet' and pat't- time employee but in each case their duties were totally teaching. That is clearly not our case, and the reasonlng there is not appl icable. Accordingly the grievance is dismissed. ,,/-'-, ! J .' - 5 - ': 1.W....) Dated at Kingston this ~ I day of March, 1984 -- -_:~ ~j-- ~--_':-- -":..!. !..----- --- R. 'J. 00111310 - Chairml.\Y'I I concur I I dissent Dean Gray - Collage Nominee ----1' -cc,r'CLlt.. I I d i nsent Guy Beaulieu - Union Nominee ...--" \ J ~-. (...--,\ - 5 - .f/...; . Dated at Ki ngston th is J.7 day of Mat'ch, 1984 . .I'. _ . - ~(' .t _. .' L , _.. (. , . ------~- ------------------- R. J. DcrlislC! - ChQirmQn I concur / I disaent ---------------------------- Daan Gray - Col19go Nominee ) I~..,..I I dissEmt . ."~ .. -1 '1_ \ --. .' ,'-1-) -----------~---------------- Guy BeaulioIJ-:-'- Union Nominae ... (~\ , 1 - :s - '11 Hv Dated at Kingston this ~ day of March, 1984 ~.~.. -L-.:~ . I", R~';~' "ll;l;;~:CEi;~Y;;m;;;---- .....,.,. ~~---------------- Dpan Gray 7 College Nomina~ I concur.J I _ "'~r I concur I I dissent ---------------------------- Guy Beaulieu - Union Nominee ..-, ) ; IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF THE GRIEVANCE OF UNION/GRUNWELL - #82097 D I SSE N T I have reviewed the majority award in this matter and am unable to concur. The majority, in adopting the College's "two hat" theory, has sanctioned a,bizzare result. The result is that one employee is a member of two separate bargaining units-or--the-same Employer. I would have adopted the Union's position that an employee must be in one unit or the other, but not both. The result of the majority award is that in a case such as this the employee is working extremely long hours, but the College is avoiding the overtime provisions of both agreements by saying he is in one unit during the day and in another in the evening. Surely mischief could not have been the intention of the parties in drafting the collective agreement nor the Legislature in drafting the Colleges Collective Bargaining Act. I would have found in the Union's favour and upheld the grievance. /~ /' 6-'" ~'~ /J Guy Be ulleu Unton Nominee .'