HomeMy WebLinkAboutUnion 19-01-221
IN THE MATTER OF AN ABITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union)
AND
ALGONQUIN COLLEGE (the College)
RE: Grievance Number 2015-0415-0019 – LINC Vacancy
Appearing for the Union: Wassim Garzouzi, Counsel
Appearing for the Employer: Jock Climie, Counsel
Sole Arbitrator: Norm Jesin
Hearing Held: January 21-22, 2019
2
AWARD
This case deals with a grievance in which the Union alleges that the College has
violated Article 2.03 C of the Collective agreement between the parties by failing to hire full time
professors to provide English language instructions to newcomers to Canada. The grievance was
filed at a time in which the parties had agreed to a moratorium for filing grievances under Articles
2.02 and 2.03 A. Those provisions oblige the College to provide preference to hiring full time
professors over partial load and sessional teachers although this obligation is subject to
“operational requirements”. Article 2.03 C on the other hand provides as follows:
2.03 C If the College continues a full-time position beyond one full year of staffing
the position with sessional appointments, the College shall designate the position
as a regular full-time bargaining unit position and shall full the position with a
member of the bargaining unit as soon as a person capable of performing the work
is available for hiring on this basis.
In an earlier award on this matter, I determined that “if the Employer has required the
teaching of courses to be performed on a full ti me basis by sessionals, as it has under the
stipulated facts in this case, that the positions are in fact full time positions within the meaning
of Article 2.03 C, regardless of whether the Employer has formally designated the positions as
full time.” I also noted that a number of items remained to be determined. One of those items
was the interplay between Articles 2.03 A and C. It was not yet clear to me whether the College
3
maintained the ability to rely on operational requirements to assign sessionals in a manner that
would otherwise seem inconsistent with Article 2.03 C.
A hearing was therefore convened on January 21, 2019, to consider the interplay between
these provisions and to consider whether or not the ongoing staffing of the LINC program with
sessional teachers was in violation of Article 2.03 C.
In that hearing the Employer argued that any obligation to hire full time staff under Article
2.03 C was subject to the same exception for operational requirements as exists under Article
2.03 A. Counsel asserted that if this were not the case, Article 2.03 A would be rendered
meaningless as it would be unable to rely on operational requirements to hire sessionals
notwithstanding the existence of the exception set out in Article 2.03 A. Counsel further
submitted that this is the only reasonable interpretation to be placed on the provisions,
particularly in light of evidence that he was prepared to marshal, that the parties themselves had
long governed themselves according to the College’s interpretation.
Counsel also relied on an intervening award by Arbitrator Christine Schmidt in
Confederation College, unreported, October 24, 2018. In her award Arbitrator Schmidt does not
appear to accept the determination I have made that if the College requires work to be
performed on a full time basis then the work makes up a full time position, even though the work
may be performed by sessionals. In Confederation College the College staffed a two year nursing
program with sessional appointments in the fall and winter semesters in consecutive years. In
the circumstances, Arbitrator Schmidt did not accept that the sessionals were assigned to
“already existing full time positions.” (See paragraph 21). In addition, Arbitrator Schmidt was of
4
the view that the path for the Union to success obtaining a full time appointment in preference
to the appointment of sessionals was through Article 2.03 A and was therefore subject to the
College’s operational requirements. (See paragraph 20.)
As a result, the College counsel in this case submits first that my original decision and
Confederation College are inconsistent as to whether a full time position as contemplated in
Article 2.03 C exists. More fundamentally, College Counsel submits that the Union must first
establish an entitlement to a full time position under Article 2.03 A and in any event, cannot
succeed under Article 2.03 C if the College can establish that the staffing of sessionals is made
because of operational requirements.
In order to ensure that I have fully and accurately set out the College’s position, College
Counsel has agreed to provide a written summary of the College’s position which is set out below:
1. As a result of financial pressures, the LINC contract was discontinued at the end of the
Fall 2018 semester. The LINC contract was not economically viable if it had to include full-
time faculty. As a result of the LINC closure, this grievance is now moot.
2. In the alternative, we are prepared to resume the argument of this case. Arbitrator Jesin
indicated at the end of his award that he would be hearing submissions on the interplay
between Art. 2.03A and C and the consequence that flow therefrom.
3. 2.03C must be read in the context of the entire collective agreement and specifically Art.
2 as a whole. It is precisely this interplay that Arbitrator Jesin wished to examine next.
4. In our submission, Arbitrator Schmidt’s award in Confederation directly addressed this
very question and as a result the matter ought to be considered settled law. Schmidt
found that the union was clearly trying to do an end around the deal they made with the
moratorium.
5. In essence, Schmidt determined that the Union’s interpretation of Art. 2.03C (i.e. after
one year and a day of sessional usage, the College was automatically required to post and
fill a full-time position, even if there were operational requirements that justified not
doing so) made no sense in the context of Art. 2 as a whole.
6. This would create an absurd result. It would mean the College could use sessionals for
years under 2.03A because of, say, economic viability reasons but under 2.03C they would
5
not be permitted to use them for even a year and a day, despite having valid operational
requirements for doing so.
7. The union has argued that the collective agreement should be interpreted to mean that
the use of sessionals is permitted for one year (if there are operational requirements) but
after a year the Colleges are obliged to either hire a full-timer or resort to using part-time
or partial load.
8. This interpretation makes no sense. Faculty are routinely off work for more than a year
(extended maternity leaves, long-term disability, acting assignments, etc). The parties
could not have intended for Colleges to be barred from using back to back sessionals for
more than a year in these sorts of very prevalent cases.
9. Furthermore, if there were operational requirements that justified the use of sessionals
under Art. 2.03A such as market acceptability, enrolment patterns, economic viability,
etc. then it would be nonsensical for that justification to disappear automatically after
twelve months. If operational requirements were somehow time limited for sessionals
then the parties could have easily said so in 2.03A. They did not.
10. The Employer submits that a far more reasonable interpretation of 2.03C is that if and
only if the College does not have any operational requirements to justify the use of
sessionals (under 2.03A) then it will be required to automatically post a full-time position
after a year.
11. To suddenly argue in 2019 that the parties intended decades ago (when this clause first
came into being) that there was an automatic hiring obligation after one year, despite
such an argument never being advanced before now, defies common sense.
The Union asserts that that Article 2.03 A and C are different and apply in different
circumstances. According to Union Counsel, Article 2.03 A allows the College to staff a full time
position with sessionals for up to one year, but only if it is operation ally required to do so.
Otherwise it must give preference to full time appointments. However, after one year Article
2.03C then requires the College to staff such positions with full time staff and it can no longer
rely on operational requirements to continue staffing full time positions with sessionals. That is,
the operational requirements exception to the obligation to give preference to full time staff over
sessionals only exists for the first year of staffing the positon. In support of this submission, the
Union relies on Sheridan College and Ontario Public Service Employees Union, unreported,
6
November 6, 1996 (Schiff). In that decision, the arbitrator reviewed article 2 in its entirety and
found:
As we read the provisions we have set out, they are a kind of union and members’ charter
of rights. The first sentence of s. 2.03A aims to get bargaining unit teachers into full -time
positions as the positions appear and to keep out sessional appointees unless the College
has justification in the shape of some “operational requirement”. The second sentence
looks to “ongoing” positions, directing the College to put members of the bargaining unit
into them instead of sessionals “as soon as possible”, subject again to the presence of
operational requirements. The exception disappears if full-time position has been staffed
with a sessional for more than a year: under s. 2.03C, the College must then fill the
position with a bargaining unit member as soon as a qualified person is available whether
or not there are operational requirements.
In order to ensure that I have properly characterised the position of the Union, I have set out
below a summary of the Union’s position which counsel has provided in writing:
Regarding Confederation College, a decision relied upon by the College, the Union points
out there was no discussion in that case about the established jurisprudence that has
clearly separated article 2.03A from 2.03C.
Neither party presented the arbitration board with Sheridan College and Ontario Public
Service Employees Union, unreported, November 6, 1996 (Schiff). In that decision, the
arbitrator reviewed article 2 in its entirety and found:
As we read the provisions we have set out, they are a kind of union and members’
charter of rights. The first sentence of s. 2.03A aims to get bargaining unit teachers
into full-time positions as the positions appear and to keep out sessional
appointees unless the College has justification in the shape of some “operat ional
requirement”. The second sentence looks to “ongoing” positions, directing the
College to put members of the bargaining unit into them instead of sessionals “as
soon as possible”, subject again to the presence of operational requirements. The
exception disappears if full-time position has been staffed with a sessional for
more than a year: under s. 2.03C, the College must then fill the position with a
bargaining unit member as soon as a qualified person is available whether or not
there are operational requirements.
Notwithstanding this very clear interpretation of article 2.03C, counsel for the Union
notes that the language was never amended, nor was the decision judicially reviewed.
7
Counsel for the Union takes issue with the characterisation made by the arbitration board
in Confederation College, where it states that “the Union, by advancing this grievance,
filed while the moratorium was in effect, is attempting, by way of a dexterous argument,
to circumvent the moratorium…” The Union stressed that the parties are sophisticated
and understand which articles to include under the moratorium. Indeed, the parties could
have broadly included article 2 – rather, they specifically identified two sub-articles under
article 2 and no others:
“No grievances alleging a violation of article 2.02 and 2.03A shall be filed on or
after September 1, 2014.”
The parties had no difficulties identifying which articles were to be covered by the
moratorium. The notion that the Union was somehow barred from advancing grievance s
under articles not under a moratorium would defeat the very purpose of outlining specific
articles in the letter of understanding. By expanding the scope of the moratorium, the
arbitration board improperly exceeded its jurisdiction, as limited by article 32.03E.
Counsel for the Union relies on Council’s own positions in bargaining, namely during the
last round (2017) to confirm that article 2.03C is, indeed, severable from article 2.03A.
During the last round of bargaining, Council proposed on two occasions to eliminate
and/or replace article 2.03C, and to include a temporary full-time classification,
specifically to address the arguments presented by the College about extended maternity
leaves.
In response to the College’s arguments, the Union states tha t when read as a whole, the
provisions are clear – the College can rely on operational requirements to justify the use
of sessional employees, up to one year. Beyond that, the College must make a decision,
to post the position or alternatively, to fill it with partial-load (or part-time employees). It
is not a restriction on filling positions with full-timers, rather, it is to ensure that the
College is not replacing full-time members of the bargaining unit with non-unionized full-
timers.
Finally, counsel notes that the College has conceded that article 2.03B is not covered by
the moratorium, nor is it connected to article 2.03A, confirming the Union’s
interpretation on 2.03C.
On the issue of mootness, the Union argues that the College closed the LINC program to
avoid the necessary consequences of Article 2.03C, which, in and of itself, confirms the
Union’s interpretation of that Article as requiring the College to appoint full -time faculty
in the program.
At this juncture I would point out that from the outset of this case, the College had
asserted that it was operationally untenable to staff this contract activity with full time
8
appointments and as it could not afford to do so with the monies provided by t he federal
government for the administration of the contract. After my earlier decision in this case, the
College became concerned that the continuing litigation of this grievance might result in an Order
to staff the program with full time appointments. As a result, and in keeping with its concern
regarding the ongoing financial viability of the contract, should the Union succeed, the College
has discontinued the contract. In these circumstances any relief that the Union might obtain at
this juncture is primarily declaratory.
In my view an issue of this import should not be determined to deal with a factual
circumstance which no longer exists. This is particularly so in a case such as this, which may
require the consideration of a significant amount of extrinsic evidence and in which the existing
arbitral jurisprudence – essentially going in two different directions – has not yet shown a clear
path to an accepted outcome. In my view, in these circumstances the issues at hand should be
determined where there is a continuing and ongoing factual circumstance giving rise to the
dispute between the parties. It is therefore my view that as there is no longer a factual
circumstance in this case that is in dispute, the litigation in this case should be terminated.
However, given the importance that the parties have ascribed to the issues at hand I have
thought it prudent to lay out the positions of each party as I have above, as this may be of some
benefit should the issue arise again in future.
Dated at Toronto, ON this 22nd day of January, 2019.
______________________
Norm Jesin