Loading...
HomeMy WebLinkAboutUnion 87-10-00 ". .' ''\ ,) "F") VJ Od ^Z 8 7 . ~l ~\ IN THE MATTER OF AN ARBITRATION BETWEEN: St. Clair College (hereina:fter rei'erred to as "the employe,r") - and '- Ontario Public Service Employees Union (hereina:fter re:ferred to as "the trade union") . ~ CJ \ Pf 0 1.--"" And In the Matter oi' Trade Union Grievances (OPSEU #87AOl and #87A02) D.H. Kates, Chairman R.J. O'Connor, Employer , Nominee Edward Seymour, Trade Union Nominee Be:fore: Appearing i'or the College: C.G. Riggs, C.C. . Appearing i'or the Trade Union: Malcolm Ruby, Counsel Appearing for the Interveners: Paul Rousseau and Tim Field, Faculty Education O:f:ficers Heard at Windso~, Ontario, on June 26, 1987, Last written submission received on August 1, 1987. ,,----- , - 1 - Decision The principal issue to be decided in this case is whether the incumbent employees who occupy the positions 0% Faculty Education O%%icer and Curriculum Officer "are employed as teachers" and are thereby appropriate for inclusion as employee members of the Academic Bargaining Unit. The trade union has %iled two grievanc~s alleging that the incumbent employees are not appropriate for inclusion in the Academic Bargaining Unit and that the employer in treating them as teachers has not only violated the relevant provisions of the collective agreement but has also acted contrary to the relevant provisions of The Crown Employees Collective Barqaininq Act (1975). The grievance is framed as an alleged violation of the seniority provisions of the collective agreement and reads in part as follows: This is a grievance filed by Local 138 under Article 11.10 of the collective agreement. The College has created the position of Faculty Education Officer which is a non-teaching' position recently filled by two members of the academic bargaining unit. Th~ College has chosen to fill this position as a bargaining unit position with continuous membership and accumulation of bargaining unit seniority, Local 138, 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, librarian). Local 138 also contests that the Colleqe has Risinterpreted "The Colleqes Collective Barqaininq Act 1975 (Bill 108. Schedule 1. The Classification Plans 1982 (Classifications for positions in the academic barqaininq unit) and Article 1 of the Collective Aqreement", emphasis added -', , ) r - 2 - The positions' incumbents were given notice of these proceedings and Messrs. Rousseau and Field. Faculty Education Officers. appeared at the hearing and participated as parties hereto. The incumbent Curriculum Officer (Ms. L. Hubbs) did not file an appearsnce. The employer has reJected the substance of the trade union's allegations and insisted that the incumben~ employees. while occupying the positions in question. "are employed as teachers". It thereby maintains that they are appropriate for inclusion in the Academ~c Bargaining Unit. In any event the employer submitted, with respect to the grievance relating to the Faculty Education Officers. that that grievance was untimely. I More particularly, having regard to the lengthy period that the said 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 an appropriate union grievance, was not arbitrable. Accordingly, this arbitration board was withou~ Jurisdiction to entertain the Faculty Education Officer's grievance. In any event. the employer argued that the trade union was estopped from arguing that the incumbents to the said positions were not appropriate for inclusion in the Academic Bargaining Unit. It is common ground that the composition of the Academic Bargaining Unit as described in the collective agreement must /~ / reflect the statutory description for the Academ~c Bargaining ~ - 3 - Unit that is prescribed by The Colleqes Collective Barqaininq Act. 1975 (her.ea:fter re:ferred to as "The Act" > . Accordingly, to the extent the bargaining unit described in the Academic Collective Agreement may be in con:flict with the Act this Arbitration Board has Jurisdiction to correct the con:flict or the inconsistency so as to ensure that the collective agreement remains both harmonious and compatible wit~ the governing legislation (see-Eor 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 as follows: 1. In this act and in the Schedules, (a> "agreement" means a written collective agreement between the Council on behalf o:f the employers and an employee organization covering terms and conditions o:f employment negotiable under this Act; (b) "bargaining unit" means the academic staff bargaining unit of employees or the support staEE bargaining unit of employees set out in Schedules 1 and 2; (f) "employee" means a person employed by a a board of governors of a college of applied arts and technology in a position or classification that is within the academic staff bargaining unit or the support staff bargaining unit set out in Schedules 1 and 2; 48(2) Where a conflict appears between any provision of an agreement and any provision of any legislation, the provision of the legislation prevails. SCHEDULE 1 The academic staff bargaining unit includes the employees of all boards of governors o:f 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 heed or director, " - 4: - (v) other persons employed in a managerial or confidential capacity, (vi) teachers who teach for six hours or less per week, (vii)counsellors and librarians employed on a part-time basis, (viii) teachers, counsellors-or librarians who are appointed for one or more sessions and who are employed for not more than twelve months in any twenty-four month period, (ix) a person who is 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 read as follows: 1.01 The union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers (including teachers of Physical Education), counsellors and librarians, all as more particularly set out in Appendix 1 hereto save and except Chairmen, Department Heads and Directors, .persons above the rank of Chairman, Department Head or Director, persons covered by the Memorandum of Agreement with'the Ontario Public Service Employees Union in the support staff bargaining unit, and other persons excluded by the legislation and teachers, counsellors and librarians employed on a part-time or sessional basis. 11.10 Such grievance shall be submitted in. writing by the Union Grievance Officer at Head Office or a Local President to the Director of Personnel or as designated by the College. within twenty (20) days following the expiration 0% the twenty days %rom the occurrence or origination of the circumstances giving rise to the grievance commencing at Step No. 1 of the Grievance Procedure set out above. The parties spent a substantial portion of their written argu~ent debating the proposition as 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 %ocussed upon the /- \ I / \ - 5 - applicability of the pronouncements of the Court Appeel in Re United Glass and Ceramic Workers of North America and Dominion Glass et al. (1973) 40 DoLoR. (3d) 496 to the issue of whether the status of the incumbent employees for purposes of the collective agreement represented an isolated and/or discrete transaction that could be litigated in a more timely manner in subsequent grievances should the occasion ~riseo It appears however that both the arbitral and court cases that have been decided since "Domglass" (and which recently have been discussed and summarized in Re Port Colborne General Hospital and Ontario Nurses' Association (1986) 23 LAC (3d') 323 (Burkett)) have significantly restricted the scope of the Court of Appeal's pronouncements. We mention this, however, only.to indicate that we have examined the relevant Jurisprudence and have concluded that the said case law has no relevance to the employer's timeliness challenge. Our reasons for reaching that conclusion will accordingly follow. It is important that we stress the trade union's fundamental allegation expressed in its grievance. There it is charged that the College in treating the incumbent employees as "teachers" and members of the Academic Bargaining Unit has breached The Colleqe's Collective Barqaininq Act. And, should that allegation be sustained, then the collective agree~ent insofar as it is seen to be in conflict with the Act (as Section 48(2) prescribes) must be made subservient to the "prevai.ling'" legislation. It appears, accordingly, that the trade union has "'\ , - G - raised a %undamental question relating to the:Jurisdictional propriety 0% the employer's action %or purposes 0% the Act. And because that action may be inconsistent with the prescriptions 0% the Act we are 0% the view that the time limits 0% the collective agreement have absolutely no relevance to the disposition 0% that allegation at Arbitration. Or, more signi%icantly, because the issue that has Qeen raised relates to a question 0% Jurisdiction under the governing legislation that issue is immune %rom the time limit restrictions 0% the collective agreement.because such questions can be legitimately raised at any time. Accordingly, should the trade union's allegations 0% a violation 0% the prescribed legislative prescription. prevail then it is our view the employer's actions as directed by Section 48(2) 0% the Act in treating the incumbents, while occupying the positions in question, as members 0% the academic bargaining un~t constitute a nullity and are void ab initio. We are there%ore 0% the opinion that the employer's obJection with respect to the arbitrability 0% the said grievances must be set aside. The parties adduced evidence with respect to the duties and responsibilities 0% the Faculty Education O%%icer and the Curriculum O%%icer~ We heard more in%ormation with respect to the %ormer than the latter. No party questioned the contributions the incumbents 0% these positions have made to the obJectives 0% the College and thereby its students. It was ) common ground however that these employees while occupying those positions do not teach students. , - 7 - Basically the Faculty Education O::icer's principal function is to per:orm counselling s~rvices on behal: 0% teaching masters who may require assistance in carrying out their teaching responsibilities. To this end the Faculty Education O%%icers plan and arrange seminars :or the purpose 0% conveying teaching techniques~ provid~ counselling services :or teachers who are encountering di::iculties with students anQ generally extend teaching masters their support in whatever way will result in the more e%:icacious carrying out 0: their teaching responsibilities. The Curriculum O::icer consults with teachers and relevant members 0: the College Administration with respect to the adoption 0% new courses or the making of changes to existing courses and generally contributes to defining course work obJectives. An important part 0% the incumbent's duties is to ensure course compliance w~th Ministry guidelines. Like the Faculty Education Officer the incumbent Curriculum Officer may provide assistance to the teaching masters with respect to more effective ways of imparting the subJect matter constituting the curriculum of a particular course. In that sense the incumbent may recommend appropriate text books~ resource material~ etc. that is relevant to attaining the courses' obJectives. The incumbents are former teaching masters at the College who have accumulated several years of teaching experience. Obviously~ their experience as teaching masters as well as their own particular area of expertise have made them appropriate candidates for these positions. They are paid a premium over - 8 - and above their regular teaching master rate 0% pay. The trade union has not questioned the incumbents' quali%ications to carry out the duties 0% these positions. It is important to repeat that the incumbent Faculty Education O%%icers and the Curriculum O%%icer do not teach students. We were advised, particularly in Mr. Rousseau's case, that the Faculty Education O%ficers still ~ight deliver a lecture or hold a seminar in their academic area upon invitation %rom an appropriate teaching master. But it was not seriously contended that these isolated and in%requent teaching functions should have an impact on the outcome of this decision. Indeed it was indicated that the incumbents are not required to submit, as is the case of teaching masters., a "standard workload form" setting out their teaching schedules. It suffices to say, %or ,,- ) present purposes, that the incumbents are permanently assigned to these positions and as such the positions' duties and responsibilities require no direct teaching contact with students. The trade union argued that the phrase "employed" or "engaged" as teachers as used in Article 1.01 of the collective agreement and/or Schedule 1 0% the Act contemplates that in order to be treated as a "teacher" for purposes 0% membership in the Academic Bargaining Unit the employee must teach students. Reference was made to several provisions of the collective agreement, particularly to the work load provisions under Ar~icle 4, to demonstrate that instructing students in a manner . . -.: - 9 - typical of a teacher was what wss intended by the phrase "employed or engaged as s tescher". Accordingly those activities that would entail instructional activities in a classroom setting, the preparation of lecture material~ the marking of essays and examination papers would constitute the type of activities that would constitute the core functions of a teaching master. ~ And as an incident to the trade union's principal submission with respect to the definition 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 made to include them. Accordingly, Librarians, Teaching Counsellors, Co-ordinators, Instructors are 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 is alleged to be employed as a teacher must teach. Accordingly what is it that has convinced the College (and the two incumbent Faculty Education Officers) that the incumbents of the two positions in question ought to be treated as "teachers" for purposes of inclusion in the Academic Bargaining" Unit! We were re:ferred to a document entitled "Class De:finition, Teaching Master" under the Colleges' Classifications Plan. document describes in detail the functions of the teaching That - 10 - master for Job evaluation (pay) purposes. The Class Definition forms a part of the Academic Collective Agreement and is of relevance in determining the appropriate pay levels for incumbent teaching masters. That document reads as follows: CLASS DEFINITION TEACHING MASTER Under the direction of the senior academic officer of the College or his designate, a Teaching Maste~ is responsible for providing academic leadership and for developing an effective learning environment for students. This includes: a) The design/revision/updating of courses, including: - consulting with program and course directors and other faculty members, advisory commit~ees, accrediting agencies, potential employers and students; - defining course obJectives and evaluating and validating these obJectives; - specifying or approving learning approaches, necessary resources, etc, - developing individualized instruction and .ulti-media presentations where applicable; - selecting or approving textbooks and learning materials. b) The teaching of assigned courses, including: - ensuring student awareness of course obJectives, approach and evaluation techniques; - carrying out regularly scheduled instruction; - tutoring and academic counselling of students; - providing a learning environment which makes effective use of available resources, work experience and field trips; - evaluating student progress/achievement and assuming responsibility for the overall assessment of the student's work within assigned courses. c) The provision of academic leadership, including: - providing guidance to Instructors relative to the Instructors' teaching assignments; - participating in the work of curriculum and other consultative committees as requested. \ J In addition, the Teaching Master may from time to time, be called upon to contribute to other areas ancillary to the Teaching Master role, such as student recruitment and selection, time-tabling, facility design, professional development, student employment,. and control of aupplies and equipment. - 11 - The Board was also re~erred to the Job descriptions o~ the Faculty Education O%%icer and Curriculum O%ficer's positions. The Job descriptions <as well as the viva voce evidence elaborating on the positions' duties and responsibilities) were then compared and matched with the teaching master's "Class De%inition". That comparison established. particularly under paragraphs<a) and (c) 0% the Class De%init~on. a substantial overlap in the duties and responsibilities 0% these respective positions. And. 0% 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 was a suf%icient basis for designating for purposes 0% membership in the Aca~emic Bargaining Unit that the incumbent Faculty Education Officers and the Curriculum O:Lficer were ..teachers". It was suggested that notwithstanding the absence of any teaching responsibilities the Class Definition was sufficiently flexible to encompass the positions' duties under the Teaching Master de%inition. 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 is. "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'~ work environment any number of administrative and support positions .. - 12 - that are occupied %or the purpose 0% achieving the obJectives 0% a post secondary school learning institution may very well overlap with the %unctions 0% a teaching master. Indeed we do not doubt the soundness 0% the. College's comparison that there is signi%icant similarity in some areas between the duties 0% the Field Education O::icers' and Curriculum O::icers' positions and the duties 0% the Teaching Master's po~ition. And i% this case were a Job evaluation grievance. the College's analysis might be 0% 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 0: the College's President and the Librarian's position ;' \ vis-a-vis the Teaching Master. Common to both the President's and Librarian's positions is the absence 0% any teaching responsibilities. In the :ormer case however the President is excluded :rom the Academic Bargaining Unit and in the latter case the Librarian is expressly included. In other words, although the incumbents to each 0: these positions may establish some similarity in duties and respons~bilities relative to the duties of a teaching master that consequence would not make them teachers for purposes 0% their inclusion in the Academic Bargaining Unit. Like Librarians we are 0: the view that the Legislature had to expressly include the Faculty Education O::icer's and the Curriculum O::icer's positions in the Academic Bargaining Unit :or them to be treated in a like manner as / , ) Teaching Masters. In the absence 0: such express inclusion we \ are 0% the view that Schedule 1 0: the Act dictates their . , '. - 13 - exclusion :rom the Academic Bargaining Unit. Finally, we do not view that the employer's estoppel argument has any relevance to vitiating or circumventing an Act 0: the Legislature. Accordingly, :or all the Eoregoing reasons the grievances. succeed. The Board declares that the incumbent employees occupying the Faculty Education O::ficer's and the Curriculum O::icer's positions are not members 0: the Academic Bargaining Unit. For purposes 0: clarity we make no decision as to whether the incumbents in these positions ought to be treated as managerial employees or are otherwise employees appropriate :for inclusion in another bargaiqing unit. We shall remain seized :or purposes 0: implementation. Dated this day 0: October 1987 David H. Kates I concur "Edward Seymour" Trade Union Nominss I dissent "R.,I. O'Connor" (Dissent to follow) Employer Nominee \ !