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HomeMy WebLinkAboutUnion 05-05-18 FROM : MURRAY r, ;. . ( '.. . \ I. ,I'., . I'> ...... ~ "'. . j . . .{ FAX NO. :4164998594 F eb. 15 2006 03: 12I4PM P2 6LDo 3 -01/7 -oo-tr IN THE tMTTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE . AND: ONTARIO PUBLIC SERVICE EMPLOYEES' UNION AND IN THE MATTER OF ARTiClE 2 POLICY GRIEVANCE ~ CACT PROGRAM. O'NEN B. SHIME, Q.C. R. O'CONNOR I R. KELLY' CHAIRPERSON NOMINEE FOR THE COUEGE NOMINEE FOR THE UNION APPEARANCES: P.P. BRETHOUR COUNSEL, and others for the CoUege COUNSEL, and others for the Union S. BALLANTYNE A hearing was held In this matter at Kingston, Ont~rio on February 15, 2005 FROM : MURRAY FAX NO. :4164998594 Feb. 15 21211216 03:05PM P3 r ... ... AWARD This matter is concerned with fiVe grievances filed by the Union essentially clalming the College used persons other than fun.time to do the teaching and has not given prefe.renee 10 full- time positions. The Union alleged there were four full.tiine teachers In the CACT program and . . when one retired in the Gpring of 2002 and the other in the spring of 2003 they were not replaced by fulJ-time faculty. Another ruU.time teacher died In the spring of 2004, leaving one fuR-time teacher In the program. The Union asserted the CORege is not giving preference to full-time teachers to fill those positions. The CoHege maintained that in 2001 there were only two fun-time teachers and one, Mr. Ralph Franks. died in 2004; there were no vac.ancles prior to the death of Mr. Franks. The College used partial load and sessional teachers because Mr. Fran~ had been off on 5ick leave and the College attempted to keep his position open. When Mr. Franks died, Ule College did not post his position, both because of a decline In enroJment and also because of the possibility the program would be can~lIed. The Cclllege argued It would have been irresponsible to fiU Mr. Franks' position only to layoff the replacement within a year. The College admitted, for the period September 2002 to the spring of 2004, there was "higher than normal use ofpartJal road and sessional teachers In the CACT, which arose because of a short term contract with the Department of National Defence. When that contract was extended to April 2005, it created additional courses and additional jobs resulting In short-term requirements for staff. The College, by way of prelIminary objection, mamtsined this Board of Arbitration had no '. FROM :MURRAY ~~:'. '. ~ '. . (' .'r~, ", ": ..: . ~;~'<:. ,;. :.,:::-.., I~~" ~. . . '. ,i::;: .,: 3 .. .. .' . .- ',l.~r ~""'f" I. 6;. ~ ;~..,~'. :,' , .I~ . FAX NO. :4164998594 Feb. 15 2006 03:05PM P4 . . :;';,:' ~,:.~.~I~.,~ i. . ~ ".' ,'.;. . " "..... ;. : ~ : : :',". . . .r, '.,. 1'",; " " . "2. juriSdictlon to deal with the utilizatIon of part-time teachers, and relied on a decision of Arbitrator Knopf in Alaonauin Colleaa and O~rio Public Service cmDloyees' Union, unreported, May 27. 2003. There was .also an issue raIsed' concerning the nature of the evidence required to establ1sh a prima {ec;;s case. As a result, the pElrties agreed to file written submission61 both with respect to the Board's jurisdfdlon and the burden of proof. The Union $ubm~d the factual basis ill the instant case differed from the facts In the All;Ionquin Cojle~e decision, which was concerned With the erosion of the ~argaining unit by the us~. tif other than full-time filculty. The Union argued that had fUll-time faculty been repfaced With part....'mefaeulty I the arbitratorln the AkJonauln case would have decided the matterdlfferenUy, and unlike the AlaonQuin case, the bargaining unit In this muatlon is being eroded. The Union also argued the staffing model in this case differs from the AJaonauin case, and the number of hours taught by other than full-time employees greatly exceeds the number of h'ours taught by full-time ~in~.IOyees. The Union submittfld ~e Board can asse~s the "body of work" in deciding ~therthe College has failed to give preference to the designation of full.tin:le positions. The Union claimed 'there is sufficient work being done to justify filUng a fuI-time position, and once this has been done, the onus shifts to the College to Justify the choice of oU1er than full-time IGlsslgnments as faJling within the operational requirements exception in the Colleative Agreement The College submitted, based on the Algonquin College case, that this Board of Arbitration is without Jurisdiction to consider the use of part-time faculty and also that the matter is resjudicata or else there is issue estoppel. The College maintained tl1e number of 4:Ourse hours being taught by part.time teachers Is beyond the jurisdiction of this Board of Arbitration, and relies on ArticlB 6, the Management Rights Clause. The College claimed ArtIcle 2.02 and 2.03 rew1cts the College staffing authority only wIth respect to preference for full-time po~ttions over partlalload or sessional FROM :MURRAY Q ~ . . j.. . , I 1 I. I ~ FAX NO. :4164998594 F~. 15 2006 03:06PM PS ..3- ap'polniments. subject to operational' reClulrements; there is no similar restriction concerning preference for full-time positiCns over part-time positions. While part-time. sessional, and partial load teachers are speclflcally deflned In the eonective Agreemerlt, Artil:le 1.01, Schedule 1 of the CoRege Co/feati've BSTrJ8ining Act R.S.O. 1990 c.C15, eXcludes part-time professors from the ba~g8ining unit and palHime teachers are excluded from Arttcle 2. The College Is in no way restricted when using part-time teachers. The Col/ege claimed since ArtIcle 2 speclfleaUy deals with partial load and sessional appointmente and is allent with l'e$pec:t to part-time appointments, It must be presumed that the silence is deliberate and reflects the parties' int~ntion to exclude part-time appointments. from Article 2 restrictions. The CoIlege'srgued thls Issu~ was decided by Arbitrator Knopf and the factual distinctions cannot override the arbJtrator'6 lack 0' jurisdiction to consider evidence In the matter. The COllege claimed there should be some finality in the process and since Arbitrator Knopf has der;ided the issue, absent allegations of bad faith or anti-union anim~s, an arbitrator does not have jurisdiction to consider part-tIme appolntm.ents. Iv!. to the second . Issue raised, conoemlng the burden of proof, the College argued the Union must do more thEllO simply add up the hours of otherwise legitimate hires. The mere existence of pamalload and s~sional employees is not a violation ~f the Collective Agreement and mer.ely presenting a summa ry of the hours does not indicate a failure to give preference to fulJ-lime posftions. but is in effect .grievlng the hiring of partial load and sessional employees generaUy. Also. the College alleged the Union is seeking to displace the expncit right ofthe CoUege, pursuant . to Article 6 (Management's Rights) of the Collective Agreement to staff as it sees fit. and the Union must demonstrate a full.Ume position exists with sufficient houl"5 of work to warrant the filling of thai position. FROM : MURRAY FAX NO. :4164998594 Feb. 15 21211216 1213: I216PM P6 " f. -4- 1M SeH~ alse elfWeel that Mele e..eeRtefl'1pJates1he Cellele'. rilJ:R: te etBff. iReluding determining complement, subject to the Union'. right to challenge staffing dec:isiane for failure to give preferenc::e to full-time positions and sUbJed to the College's right to respond to the Union's challenge based on operational requirements. The College claimed It must know how partial load or sessional appointments were preferred over the filling cffull-tirne positions. which requires some ev'idenoe beyond the mere fact that the College has exercised its legitimate authority to make partial load or sessional appointments. The College argued there may be reasQns 10 justify a particular staffing decision and the College 1& not required to defend every hiring, just situations where It fail8d to give preference. - The College concedes that the death of .Mr. Franks 1n the spring of2004 created a vacant full~tlme position. which would entlUe the Union to grieve a violation of Article 2, provided It can demonstrate there are suffICient hours to justtfy the fimng of the position, and subjeG:t. of course, to operational requirements. The College submitted no vacant full-time posftion existed prior to Mr. Franks' death and the UnIon's evidenoe shOUld be restrided to the post-Sprfng 2004 period, and the three prior grievances mUst be dismissed. By way of reply. the Union maintained the percentage of fUll-time faculty has not been maintained relative to part-timelpartlalloadlsessional faculty, but has declined significantlY. The UnIon alleged the hours taught by Mr. Franks are now being taught by other than fuU..aime faculty and the number of full-time faculty members Is now half of what it was before the grievances were filed. The Union claimed the impact and erosion on the bargaining unit is the same whether the hours are now ta~9ht by sessional, partial load Qr part-iime faculty. The Union argued the Alaonauln College case does not apply where the effe<:t of the use of part-time faculty is to erode the bargaining unit. '. \,' FROM : MURRAY FAX NO. :4164998594 Feb. 15 212106 03:12I7PM P7 ~ . -5- The Union r-eiten$8 iiiit' It r..eed Mly add up tha-AUmber of ~QYJ:S 1alolght by gth~th3A full. time faculty in' order to make out a prima fao/e case and has f~~d on a single department where it can be assumed the courses share some community of Interest. It Is the Union's position, where there are sufficient hours within a single department to warrant posting a full-time position. the onus shifts to the College to show which of the exception5 in Article 2 it Is reJying upon in order to justify not hiring a full+time employee. The relevant provisions of the Collective Agreement are Article 1.01 ",.1...................... NOTE A: NOTE S: Part.time In this context shall include persons who teach six hours per week or less. Sessional in this context shall mean an appointment of not more than 12 months duration in 8Jly 24 month period. Article 26.01 S A partiaHoad employee Is defined as a teacher Who teaches more than six and up to and'lncluding 12 hours per week on a regular basis Partial, part-time and sessi9na[ teachers are not members of the bargaining unit and partial load employees are governed by Artier. 26. Article 2.02 The College will give preference to the designation of full~time positions as regular rather than partial teaching positions, as defined in Article 26. Partial-toad Employees, subject to such operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. FROM : MURRAY FAX NO. :4164998594 Feb. 15 201216 03:1217PM P8 I . ". -6- ~'\lIele 2.03/'-. The CoRegs win give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional ~eaching pos~ons inclUding, in particular, positions arising as B result of new post-secondary programs to such operatIOnal requirements as the quality of the pTOQrams, enrolment patterns and expectations, attalnm~nt of prQgl'8m objectives, the need for special quarrfications, and the market aceeptabiUty of the programs to emPloyers, students. and the community. The CoUege will nol abUse sessional appointments by faiJing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objeetlve~, the need for special qualffioations. and enrolment pettenw and expectations. Article 6 MANAGEMENT FUNCTIONS 6.01 It Is the exclusive fUnction of the College to: (I) maintain order, discipUne and effidency; (ii) hire, discharge. tran~r, classify, assign, appoint. promote, demote, lay off, recall and 8u&pend or Qtherwise discipline employees subject to the right to lodge a grievance In the manner and to the extent prOvided In this Agreement; (iii) manage the College and, without restricting the generality of the foregoing, the right to plan. diJ'f;!ct and control operations, facilitie$. prggram6, courses. Gystem5 . and procedures, direct Its personnel, determine complement, organization, methods and the number, location and clasHlcatiOtl of person~el required from time to time. the number and location of eampuses and facilities, services to be performed, the scheduling of assignments and work. the extension, Itmitation curtailment, or cessation of operations and all other rights and responsibilities not specifically modIfied elselNhere In this Agreemenl . 6.02 The Colleges agree that these fundlcni Will be exercised In a manner consistent with the provisions of this Agreement. In consIdering the articles In Issue, we find ourselves in general agreement With the observations made by the learned arbitrator in 8100"oul" Collece. Article 2.02 and 2.03A are restlictive only in the sense that they require preference to be given to fuU-tlme posltlo.ns over partlallosd and over sessional positions, sUbject, of course. to operational requirements. The College Is not restricted to using partial load teach~g I?osltlons. nor Is it restrided to using " FRctl : Ml!~RAY ~ . . . , ~ ':. . : !. ,. . ~. . i I t i , i i . ~l~ FRX NO. :4164998594 Feb. 15 2006 03:07PM P9 -7- sesslo"al teething ~&SmCl"S, and the CrtI)' ..&tried!)" oflflt.l1'1eel iR Artiele 2 is the re.(lIi:tlremeAt. tMt p~ference be given 10 fuJI-time posiUons, subject lothe conditions contained 1n both articles. What was patently obvious to 1he learned arbitrator In b1.s0IJOuln C"Oft~, and which had not been reatl)! addressed In previous cases, is; that no mention is made of part-time positions In ArtIcle 2. Accordingly, absent bad faith or anti-union animus the utUtzatlon of part-time positions does not c:onstitute II breach of Artk:le 2, since there Is no specific requirement, as there Is in the case of patflal load and sessiDnal positions, that preference be given to full-time positions o"er part"time . poSitions. .' The College takes the pO$ition. "that a prerequisite to an Article 2.02 ancf 2.03 grievanoe Is the existence of full-time position in the first praoe". We are not in agreement With that submission. The ArtlcIe, 8S written. does not pose a requirement that there be a fulJMtim~ position before embarkJng on a grieva~ce_ The Article merely contempfates a preference for fuU.time positions. subjeCt to.operatioFlaJ needs, In prefer.o/Ice to sessJonai and partial load positions. If the Union Is , , . able to demonstrate that by oobbling together either partIal load or s88Slonal positions there are sufficient courses to enable there.to be iJ fun.tim~ position, it may do so. That m.y require an assessment of the total complement, Including the various courses that are being taught. Once the Union shows there are sufficient courses befng taught by partial load and sessional teac:het8 that would enable a fuff-time position. the onus then shifts to the CclJege to demonstrate the operational requirements that bring it within the exception In Article 2. While we acknO'lV1edije the use Qf oarHiroe emDlovees doaa nnt <;nnditt lIP 'fI vjnr~ti"R of.. ~ Article 2, it may very well be in t~ cou~e of considenng operation" reQujremen~ there ma~ be some Incidental evidence to be considered dealing with part-time employees, andwe do not. atthis - early $tage of the proceedings, In the absence of I!l specIfic factual context. exclude the possibility FROM : MURRAY . ." . FAX NO. :4164998594 Feb. 15 2l2I06 03: 0EA'I P10 : -8~ of su~e introduction of such evidence must be decided on a case by case basis. , A board of arbitration has general jurisdiction to ensure the sanctity of the bargaining unit. That position is partially (;onceded by the Oollege in Its submissions, when It ClQ'reed the death of Professor Ralph Franks in the spring of 2004. created a vacant fu'J..time position, which woukf enable the UniOn ta grieve a violatien of ArtIcle 2. if the Union ccuJd demonstrate suffiCient course hours to Justify the fllUng of the position. subjeot, of course, to operational requirements. We are in agreement With that position taken by the College. Clearly, If a vacancy had been created In a full-time posftion, the Union would be entitled to grieve olther on the basis that there had been a violation of Mide 2, in that preference was not given to full time positions over sessional or partial load persons. or, alternatively, in a general way. by maintainIng ti:le College had eroded the bargaining unit by a$Signing the work to part-time employees. That would requIre a board of . . arbitration to aSSe5S the fuU..time position and to oonsider the part.time assignments In the c;ontext of reviewing the overall workload In the bargaining unit and the operat:iona) requirements that caused the CoUeg-e to a~sign the work as It did. Corroboration for the general theme that the CoUege is not allowed a free hand in eroding the bargaining unit is found In Article 27.05 of the Collective Agreement, Which oontains specific procedures to be follOVll'ed where the COllege plans to layoff or reduce the number of fuJI-time employees. In the event of a layoff Of reduollon, the ColI~ge has the right. "To determine the number and composition of full-time, partial-load and part-time or sessional teaohing positionsN, however, .The College shall give preference to continuation offull~time posiUons over partial load, part-time orae.asional positions, subject to. . . .. Qperational requirements," FROM : MURRAY FAX NO. : 4164998594 Feb. 15 201216 03:08PM P11, . . . ~9. . . .-. . Accordingl)','JJe t'JetermiFle, 1ft tho GOntext sf a plaFlAed lard or reduGti9FI of fyll time eMpI;ye&s the CoUege is prohibited from eroding the full-time bargaining unit and Ie required to give I , preference to continuing full-time positions over "partiaJ-load. part-ti.... or seaslonal ~hing posJtIons'" and in that particular context a board of arbitration may consider the utlizatJon of pan. time employees. In all the matters referred to, the burden of proof lIeS with the Union w demonstrate (1) whether the College is in violation of ArtIcle 2, by not gMng preference to fUlnime positJons, partial' load or sessional teachers, and, aJterhatively, (2) whether the College is in violation of the general principle not to erode the full-time bargaining unit. The obligation of the Union Is to establish a prima farie case that.the College is in violation of the Collective Agreement. It Is not sufficient to merely file a lisf ~ sessional, partial load and part-time employees. Qulte simply, it is ~ College's right to determine complement and to hire employees into those positions. To merely state that tile College has done so Is simply to affirm Ita right. The Union must go further and ntabrlSh how the College has violated the Collective Agreement: it cannot adoPt a scatter shot approaCh of a general nature and force the College to respond. '.. 'r Also. what is the response te such 8 general and non-specffio allegation? The absence of a.speciflC aUegation as to how the College has' violated the agreement places the College in the POSitiWl of justifying the totality of its comprement and why it has arranged its total work force in the way it has. The lack of specificity In the Un/'onrs allegation would compel the College to respond to these general allegations in such a way that It would prolong the hearing at considerable e~nse to the parties. The object of any legal proceeding Is to narrow the issues and the procedure suggested by the Union Is quite sJm~1y too open-ended and inoonsfstentwith the Union', FROM : MURRAY . . FAX NO. :4164998594 Feb. 15 2006 1213:1219PM P12 .. , , . ~10- btlnJ-=tf. t.. JoIro,...6ily defin~ the JsS~e.3 and t6 eatablis" 8 p~ fa. ease, The Union as a party to the Collective Agreement has 8 responsibility to monitor the ColleWvc Agreement and Its administration by the Coll~e. ThIs Collective Agreement has Ii number of artlc:kts that reqlJire the Colle~ to fuml&h 'the Union with infonnation. l1le Union cannot sit on its haunches and then require the College to demDnstrate that It has not viofated the CoUectlve Agreement The Union musf make p positive effort to cohot and collate information about' the work force and generally monitor the way the COllege haB administered the Collective Agreement so as to be in a position to adduce evidenoe in a more pos~ve and specific manner In order to demonstrate there hae been a \llolation of the Collective Agreement In the case of an alleged violation of Article 2, the Union must demonstrate how the College has failed to give preference to fulHirne positions over seslional and partial load positions. In the case of an allegation that the COllege has subverted the bargaining unit, the. Union must demonstrate how the College has 1alled to gIve preference to tile continuation of full-time positions over partJal load, part-time, or sea&fonal positions. In either case, there wiJl be a requirement to reviewthe COUl'$e$ being taught and the status of the psrsons teaching those courses. If the Union properlY monitors the College's administration of the Collective Ag~ment and retains and collates Information ~nceming the various GOurses being taugh.t and by whom, It should not be difficult to produce such evidence at arbitration. In $ummary, it is our view that the mere pre$ent&tlon of a list of various classifications that are now teaching i8 not sufficient to establish a prima facie case, and the Union must go further and more specifically indicate how the College has violated the ColleeUve Agreement before the COllege's called UpOt'l to justify Its PQsltion. <" FRll'1 : MURRAY :R: .: . ..:.~. :. ~'. . On,.. . r~;:t.~',:"J" .' .'~:~~~:':' I ", ....r ~ . ":.~ FAX NO. :4164998594 Feb. 15 201216 03:09PM P13 ':": :?~~::~~)~. '::.:., ,':,' :;'"~{.',:':':''' " , -11~ subject to tfta feregeiAg this matter 19 te be eeltlRuetl far a heart"! SA tAe AleRts. SA a date to be schedUled., DATED AT TORONTO THIS 18" DAY OF MAY, 2005. I O~n B. Shlme Chairperson "I ooncurl R. O'Connor Nominee far the College Ml concur" R.Kelly Nominee for the Union