HomeMy WebLinkAboutUnion 18-11-23IN THE MATTER OF AN ARBITRATION
BETWEEN
CONESTOGA COLLEGE
(the “College”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 237
(the “Union”)
UNION GRIEVANCE #2016-0237-0006
SOLE ARBITRATOR: John Stout
APPEARANCES:
For the College:
Glenn Christie, Hicks Morley
Shelly Schenk, Director Human Resources
For the Union:
Jane Letton, Ryder Wright Blair & Holmes LLP
Lana-Lee Hardacre, Local President
Maureen Murphy-Fricker, Local Vice President
Mitko Mancevski, Chief Steward
HEARINGS HELD IN KITCHENER, ONTARIO ON DECEMBER 19, 2016 AND IN
CAMBRIDGE , ONTARIO ON NOVEMBER 22, 2018
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AWARD
[1] I was appointed to hear and resolve a March 18, 2016 Union grievance (#2016-
0237-0006). In the grievance, the Union alleges that the College has violated the
Academic Employees Collective Agreement by paying partial-load employees for
coordinator duties pursuant a separate contract. The Union also asserts that the College
has failed to act on the Seneca College – Starkman Award of December 29, 2013.
[2] The College denied the grievance on April 21, 2016, asserting that they have a
long standing practice and it was within their rights to assign academic leadership and
coordination duties to employees other than full-time professors and compensate them
with separate contracts.
[3] The hearing of this matter commenced on December 19, 2016 in Kitchener,
Ontario. At the hearing, counsel provided me with an outline of their client’s positions and
a copy of the Starkman Seneca College Award referenced in the grievance. The College
also raised a claim that the equitable doctrine of estoppel applied in these circumstances.
The hearing was then adjourned so that the parties could exchange particulars and
production related to the practice referenced in the College’s April 21, 2016 response and
the College’s claim that the equitable remedy of estoppel applied.
[4] After the first hearing date and prior to the matter recommencing, a new collective
agreement was imposed by interest arbitration in accordance with the Colleges of Applied
Arts and Technology Labour Dispute Resolution Act, 2017, see 2017 CanLII 85728 (ON
LA).
[5] In addition, an award was issued this year by Arbitrator Parmar, St. Lawrence
College and OPSEU, Local 417 (Kingston-Floyd), 2018 CanLII 26586 (ON LA). The St.
Lawrence College award addressed the issue of whether program coordinator duties
assigned to a partial-load employee ought to be included in determining if such employee
should be considered a sessional employee. Arbitrator Parmar agreed with Union’s
position, allowing the grievance and finding that the employee was to be considered a
sessional employee for the period when they were assigned program co-ordinator duties.
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[6] This matter reconvened on November 22, 2018 in Cambridge, Ontario. At that
time, counsel apprised me of the parties’ agreement that the practice referenced in the
College’s response had ceased. The College also indicated that they would never again
assign coordinator duties to partial-load employees. The Union advised that they were not
seeking any retroactive relief. However, the Union requested that I provide a prospective
order in case the College changed their minds and assigned coordinator duties to partial-
load employees in the future. Essentially, the Union seeks a quia timet order that the
College follow the Seneca and St. Lawrence awards.
[7] A prospective or quia timet order may be granted in situations where multiple
breaches of a collective agreement have occurred, and the evidence discloses a strong
probability that a breach is likely to occur in the future, see Royal Crest Life Care Group
Inc. (1993), 38 L.A.C. (4TH) 250 (Carrier).
[8] In my view, this is not an appropriate case for issuing a prospective or quia timet
order. I have no reason to doubt the sincerity of the College’s undertaking. In addition,
the Union has been provided with the remedy they sought in the grievance. If the issue
arises in the future, then the Seneca and St. Lawrence awards provide the parties with
guidance. I do not see how providing a prospective order in these circumstances would
serve any useful labour relations purpose.
[9] Accordingly, for all the reasons stated above, there is no need to proceed any
further with this matter. The grievance is hereby deemed resolved and these proceedings
are terminated.
Dated at Toronto, Ontario this 23rd day of November 2018.
John Stout- Arbitrator