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HomeMy WebLinkAboutUnion 19-07-17IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act, S.O. 2008, c. 15 Between: COLLEGE EMPLOYER COUNCIL FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY (the Colleges or the Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION (FOR ACADEMIC EMPLOYEES) (the Union) Re: Partial Load Job Security, Articles 26.10 D and 26.10 E i) Grievances of Humber, Loyalist, Confederation, Centennial, La Cite, George Brown, Algonquin, Georgian, Sheridan, Durham, Saul t, Lambton, Niagara, Canadore and Seneca Colleges ii) Grievances of Seneca, Loyalist, Lambton, Niagara, Sheridan, Confederation, Georgian, Canadore, La Cite, Durham, Humber, Algonquin, George Brown and Sault Colleges A W A R D Paula Knopf - Arbitrator APPEARANCES: For the Employer: Wallace Kenny, Counsel Peter McKeracher For the Union: Tim Hannigan, Counsel Lesley Gilchrist Heather Giardine-Tuck JP Hornick The hearing of this matter was held in Toronto on June 24, 2019. 1 Send me a postcard, drop me a line Stating point of view Indicate precisely what you mean to say . . . The Beatles, “When I’m 64” This case concerns the interpretation of the job security language for partial-load employees. This language is new to the Collective Agreement. The parties agreed to present the case without any evidence. The first set of grievances seeks a ruling on what “courses” need to be recorded under Article 26.10 D and what “courses” create a priority hiring opportunity under Article 26.10 E. The second set of grievances seeks a ruling on the extent of the College’s responsibilities to maintain and share records pursuant to Article 26.10 D. The Union asserts that any courses taught as a full-time, part-time, sessional or partial-load teacher should be recorded and create the basis for priority consideration for assignments to partial-load teaching opportunities. The Employer’s position is that only courses taught by partial-load teachers are relevant to the application of Article 26. The critical provisions of the Collective Agreement are: Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: . . . . (ii) . . . . assign, appoint . . . . (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the 2 scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. Article 7 UNION/COLLEGE COMMITTEE (LOCAL) 7.01 The Union Local may appoint a Committee at each College composed of up to three members from among employees who have completed the probationary period. . . . . 7.02 A Committee of three members appointed by the College or Campus officials will meet with the Union College or Campus Committee at a mutually agreed time and place provided that either party requests and gives at least seven days prior notice accompanied by an agenda of matters proposed to be discussed. It is agreed that matters to be the subject of discussion at meetings include: (i) the local application of this Agreement; . . . . . . (v) if requested by the Union Local, the rationale for a sessional appointment by the College shall be the subject of discussion; and (vi) if requested by the Union Local, the College shall explain its rationale for its application of Article 2, Staffing, or 27.05 (iii). In particular, it will consider any representations which the Union Local may make with respect to the assigning of work on a full-time or a sessional, partial-load or part-time basis, and with respect to the feasibility of assigning work on a full-time basis rather than on a sessional, partial-load or part-time basis. Article 26 PARTIAL-LOAD EMPLOYEES 26.01 A This Article contains provisions exclusively related to partial-load employees. However, this Article is not inclusive of all rights of partial-load employees under the Collective Agreement. 26.01 B A partial-load employee is defined as a teacher who teaches more than six and up to and including 12 hours per week on a regular basis. . . . . . . . 3 26.10 Job Security 26.10 A It is agreed that Article 27, Job Security, has no application to partial-load teachers except as referred to in 27.04 A, 27.06 A (iv), (v), (vi), 27.08 B, 27.11 B and 27.12. Such partial-load teachers may be released upon 30 days' written notice and shall resign by giving 30 days' written notice. 26.10 B For the purpose of determining the service of a partial-load teacher under 27.06 A (iv), (v), (vi), and 27.08 B and for the purpose of determining progression through the grid ten months of on-the-job experience will entitle the employee to one year of service and to progress one step on the grid, except as noted in 26.10 C. 26.10 C On-the-job experience will be calculated as follows: a partial-load teacher will be entitled to credit for service from September 1, 1971 (but not earlier) on the basis of ½ month's credit for each full month of service up to January 1, 1977 and thereafter on the basis of ½ month's credit for each calendar month in which the employee teaches 30 hours or more and from October 1, 2017 (but not earlier) on the basis of one month credit for each calendar month in which the employee teaches 30 hours or more. 26.10 D In addition to maintaining a record of a partial-load employee’s job experience, the college will keep a record of the courses that the employee has taught and the departments/schools where the partial -load employee has taught such courses. By October 30th in each calendar year, a currently or previously employed partial-load employee must register their interest in being employed as a partial-load employee in the following calendar year. This individual will be considered a registered partial-load employee for the purpose of 26.10 E. (59) All partial-load employees employed for all or part of the period from September 1 to December 31, 2017 will be deemed to have registered for the 2018-2019 academic year. 26.10 E Subject to the application of Articles 2.02 and 27.06 A, commencing in the 2018- 2019 academic year, where the school or department within a college determines that there is a need to hire a partial- load employee to teach a course that has previously been taught by that registered partial-load employee in the department/school, it will give priority in hiring to such partial-load employee if: (i) They are currently employed, or if they have previously been employed as a partial-load employee for at least eight (8) months of service as defined in 26.10 C within the last four (4) academic years, and 4 (ii) The assignment of such course will not cause the employee to exceed the maximum teaching contact hours for partial-load employees. The offer of partial-load employment is conditional on the college subsequently determining there is sufficient enrolment to warrant the assignment being offered. Where two (2) or more partial-load employees would be entitled to be offered the course assignment, the employee with the most service will be offered the first opportunity. . . . . . . Lists 27.04 A In January of each year, the College shall prepare and post lists as follows: . . . . (iii) a seniority list of all partial-load employees employed since the previous January showing the employee's name, division or department, and accumulated service to date. Such lists shall also be sent to the Union Local President. The Submissions of the Union The Union argued that these grievances have been filed in the context of what the Union referred to as partial-load employees’ “precarious employment”. It was stressed that partial-load teachers work from term to term, with no guarantee of hours, renewals or continued employment. The Union stressed that it has continually strived to achieve stronger protections for these teachers in this Collective Agreement. The Union asserted that the new language in Article 26.10 was negotiated to provide “some degree of job security to these employees”. Accordingly, the Union argued that the language should be interpreted broadly, to give the greatest security to these “highly qualified and hardworking individuals”. The first set of grievances focuses on Article 26.10 D. The Union asserted that the Article requires each College to keep a record of all the courses that an employee has taught, whether the person had partial-load, part-time or sessional status. It was asserted that this interpretation flows from the “plain meaning” of the language. It was pointed out that the formula for calculating “on-the-job 5 experience” is based on hours taught. Therefore, it is important to the Union to have the clause interpreted and applied by having any teaching hours credited to partial-load employees seeking future opportunities. It was stressed that nothing in Articles 26.10 D or 26.10 E suggests that only teaching as a partial-load teacher is relevant. It was suggested that the only question in applying these Articles should be whether the person has previously taught the course, regardless of his/her status when teaching the course. The Union also argued that its interpretation creates a benefit for the College and the students because it is in everyone’s best interest to appoint people with experience to teach the same course again. The Union asked rhetorically, “What difference does it make whether they taught the course as a part-time, partial- load or sessional teacher?” Accordingly, the Union argued that the hiring priority should be based on the courses taught, not the teachers’ status when they taught a particular course. Anticipating the College’s position that Articles 26.10 D and E only require records to be kept or credit applied to courses taught while a person was employed teaching on a partial-load basis, the Union pointed out that Article 26.10 D allows currently or previously employed individuals of any status to register their interest in future partial-load employment and to assert the benefit of the prioritization under Article 27.10 E. Therefore, the Union asserted that the clause should not be read in a way that limits the credit for courses taught to only those taught while the person had partial-load status. The Union voiced concerns over the possibility that the Employer’s interpretation could result in a situation where a partial-load employee would have no priority over a potential hire from “off the street”. For example, if the Employer is correct in its position and it determines that there is a need to hire a partial-load employee to teach a course, a partial-load employee who taught the course on a part-time basis in the past would have no priority over someone from “off the 6 street”. The Union argued that such a result would negate the partial-load job security objective of Article 26.10 and effectively deny the hiring priority promised in Article 26.10 E. The Union stressed that such a limitation cannot be warranted without clear language in the Collective Agreement. In support of these submissions, the Union replied upon: Brown and Beatty, Canadian Labour Arbitration, 5th Edition, 4:2100; Western Mines Ltd. and Canadian Association of Industrial, Mechanical and Allied Workers, Local 19, 1991 CarswellBC 1171, [1981] B.C.C.A.A.A. No. 4, [1992] W.L.A.C. 383, 1 L.A.C. (3d) 31 (McColl); Calgary Roman Catholic Separate School District No. 1 and C.U.P.E., Local 520, 1989 CarswellAlta 860, 3 L.A.C. (4th) 385 (Ponak); Alberta Union of Provincial Employees and Alberta Health Services, 2017 CarswellAlta 1750, 284 L.A.C. (4th) 166 (McFetridge). The second set of grievances focuses on the Union’s assertion that Article 26.10 D imposes a duty on each College to create a “registry”, list or record of all courses taught by each partial-load employee, whether taught on a partial-load, part-time or sessional basis. The Union argued that Article 26.10 E’s prescription for prioritizing applications for partial-load teaching positions can only be properly administered if a College has a record of all courses taught by the people who register their interest in teaching each course. Further, the Union stressed that two sets of records are mentioned: one for the partial-load employee’s “job experience” calculated under Article 26.10 C and the other for the “record of courses that the employee has taught”. Stressing that all the words must be given meaning, the Union submitted that “all the courses taught” should be given their “plain and ordinary meaning” so that any course taught under any status should be recorded. Accordingly, the Union argued that the Collective Agreement imposes a mandatory duty on the College to track all the courses that have been taught by the partial-load teachers, regardless of their status while teaching those courses. It was stressed that these records are what 7 will be required for the College to properly apply Article 26.10 E when weighing the applications for appointments to partial-load teaching positions. The Union also argued that the Colleges must share these records with the Union. Acknowledging that there is nothing in the Collective Agreement specifying the requirement to share these records, the Union asserted that this information is “necessary” and “consistent with the Union’s representation rights”. The Union emphasized that if the College shared this information, it would enable the Union to advise people of their rights and could potentially avoid the filing of grievances. It was said, “A core concept of this Collective Agreement is the sharing of information with respect to staffing in order to avoid unnecessary conflict.” Therefore, the Union argued that the information mandated under Article 20.10 D should be shared with the Union to allow it to advise current and past employees of their rights under Article 26.10. In support of these submissions, the Union relied upon George Brown College and Ontario Public Service Employees’ Union (Article 7.02(vi)), decision of Knopf, dated December 17, 2004. The Submissions of the Employer The College Council began by contesting the Union’s characterization of partial- load employment as “precarious”. It was asserted that partial-load status creates “good and valued employment”. Further, the Employer stressed that the College Council has maintained the exclusive right to manage, assign and appoint, unless explicitly limited by the terms of the parties’ Collective Agreement. Turning to the specifics of the grievances, the Colleges stressed that Article 26.10 must be read and applied with regard to Article 26.01 A, wherein it prescribes that it contains provisions “exclusively related to partial-load employees”. Therefore, it was argued that sessional or part-time employees cannot accrue rights under this Article. It was suggested that the Union’s 8 interpretation of Articles 26.10 D and E would result in part-time and sessional teachers acquiring credit for teaching courses that could potentially trump partial- load employees’ access to future partial-load appointments. It was argued that such a result could defeat the purpose of the partial-load job security clause. The Employer pointed out that the parties have negotiated specific circumstances where credit for sessionals’ service can be converted into rights under this Collective Agreement in Appendix 5 without suggesting that sessionals’ courses are to be recorded or credited for purposes of Article 26.10. Stressing that part-time teachers are excluded from the bargaining unit and that sessionals only have the rights specified in Appendix 5, the Employer argued that there must be clear and unambiguous language to support a finding that part - time or sessional teaching can create rights that are enforceable under this Collective Agreement. The Employer argued that the Collective Agreement should not be read in a way that would allow part-time or sessional teaching hours to affect priority hiring rights in this full-time bargaining unit. Further, the Employer pointed out that the formula in Article 26 .10 C accords credit only for months in which an employee teaches 30 hours or more. By definition, that creates a situation that would never include part-time teaching because part-time status limits teaching hours to up to six hours per week, never allowing a part-timer to accumulate 30 hours of teaching in a month. It was suggested that the figure of 30 hours was negotiated to ensure that part-time teaching would not be counted for purposes of Article s 26.10 D and E. In addition, the Employer argued that if part-time or sessional teaching hours could be credited for purposes of appointments to partial-load job courses, this could mean that employment outside of this bargaining unit could put people in a better position than partial-load bargaining unit members. Further, it was submitted that if the parties had intended to allow sessional and part-time teachers to acquire 9 rights that could be applied later under Article 26, they would have done so specifically as they did in Appendix 5. The Employer also argued that Article 26.10 D should not be read to effectively impose a retroactive obligation upon the Colleges to have tracked part-time and sessional teaching hours for people outside of this bargaining unit. Instead, the Employer argued that the only records the College is obliged to keep are of the partial-load courses taught by individuals in their departments or schools. It was said, “We did not draft a clause that requires the College to go back in time to count service we were not obliged to track”. The Employer also disputed the Union’s assertion that it makes no difference whether a person teaches a course as a partial-load, part-time or sessional teacher. Pointing to the duties listed in the Class Definition of a teacher under this Collective Agreement, the Colleges argued that part-time status does not encompass all these responsibilities. Turning to the Union’s request that the College create , maintain and share lists or a registry of all the courses that an employee has taught, it was acknowledged that there is an obligation to maintain records of partial-load teachers’ individual job experience, the courses they have taught as partial-load employees and the departments/schools where they taught those courses. However, the Colleges insist that these are records that pertain to the individual teachers, not a comprehensive list or registry that must be shared with the Union. The Employer pointed to several other provisions in the Collective Agreement that specify when information must be given to the Union, i.e., Articles 3.01, 3.03, 10.03, 11.02 D 2 and 27.04 A (iii). Those provisions were contrasted to the lack of similar language in Article 26. The Employer stressed that Article 26.10 E creates the right of individuals to claim priority for hiring, not a right that the Union can assert as a matter of Union representation rights. Further, the Employer stressed that the rights under Article 26.10 do not give rise to a Union interest that would 10 support its claim to the information. The individual right to claim priority under Article 26.10 E was said to be different than the Union’s right to general staffing information under Article 7(vi). The Union’s Reply Submissions While the Union acknowledged the management rights clause in the Collective Agreement, it was asserted that Article 26 establishes specific limitations on the Colleges’ right to appoint employees to teach partial-load courses. The Union also acknowledged that service under Article 26.10 C is calculated on the basis of partial-load teaching. However, it was stressed that the term “courses” in Article 26.10 D should be read as something distinct from partial-load service. Therefore, it was said that the reference to “courses” is not restricted to those taught by employees while on partial-load status. The Union also challenged the Colleges’ assertion that the language in Article 26.10 D cannot be read to have created an obligation to track information that the Colleges were not obligated to keep in the past. It was suggested that the information must be available to the Colleges and that it is now mandated by the contract. The Decision This is a contract interpretation case. An arbitrator’s role in a contract interpretation case is to declare what the parties intended by giving “plain and ordinary meaning” to the words they chose. However, the irony lies in the fact that if the parties’ intentions were in harmony or if their wording was clear, there would be no dispute requiring arbitral intervention. Nevertheless, even sophisticated negotiators cannot anticipate all the implications of the language that they craft. Further, there is often room for genuine disagreement about the effects of phrases and their interplay with other provisions in a contract. It then 11 becomes the role of arbitrators to resolve the dispute. To accomplish this, we apply the basic rules of contract interpretation that are relevant to each case. The interpretive rules that were cited by the Union are not in dispute. The ones that are relevant to this case are: • All the words of the parties’ contract must be read in their entire context ; • The language must be given its plain and ordinary meaning; • An article must be given an interpretation that is consistent with the scheme of the contract and be read in a way that gives effect to the intention of the parties; • If two interpretations can be applied to the words or phrase, the “contract ought not to be interpreted to disentitle a party to other rights under the agreement unless there is express language to support that view” [see Western Mines Ltd. v. C.A.I.M.A.W., Local 19, supra]. These principles must now be applied to the questions raised by these grievances. 1. What courses need to be recorded pursuant to Article 26.10 D? The difference that gives rise to this dispute is the parties’ interpretation of the word “courses”. Is the College required to keep a record of all course s an employee has taught for a department/school, or only those taught while the person was a partial-load employee? This question can only be answered by looking at Article 26 as a whole and all of Article 26.10. First, Article 26 begins with the pronouncement that its provisions are “exclusively related to partial-load employees”. This must be given meaning. Further, Article 26.10 is titled “Job Security”. That means job security for partial- load employees. Within Article 26.10, Article 26.10 C defines “On-the-job experience” as a calculation creating “credit for service” based on hours of teaching. As the Union acknowledged and as the language indicates, this calculation is based on teaching as a partial-load employee. “On-the-job” clearly 12 refers to the job of a partial-load employee. That is what this clause is about. If there is any doubt about this, it must be pointed out that a part-time employee could never accumulate the number of hours required to trigger the threshold of teaching hours or more in a month to qualify for service under this clause. Part- time employees may only teach for up to a maximum of six teaching hours a week. By definition, they would not be able to achieve the 30 hours in a month that are required for credit under Article 26.10 C. Therefore, if teaching part-time has no effect on an Article 26.10 C calculation, the calculation of service must be based solely on partial-load teaching status. This leaves the question of whether hours taught on a sessional basis could enter the calculation under Article 26.10 C. Sessional hours could add up to the 30-hour threshold. However, the Union has quite properly not advocated the idea that sessional hours would enter the Article 26.10 C calculation. Sessionals’ are not members of this bargaining unit. They do have some rights by virtue of Appendix 5 wherein the parties have given focused attention to when and how sessional service can be translated into rights un der this Collective Agreement. In Appendix 5, there is a “roll-over” provision providing that when a sessional employee has continued employment for a specified period, that employee “will thereafter be covered by the other provisions of the Agreement.” Until and unless that specific threshold is met, the sessionals’ rights are confined to Appendix 5 and they are not otherwise covered by the Collective Agreement. There is no similar language in Article 26.10 C and nothing therein that links it to Appendix 5. For all these reasons, it must be concluded that Article 26.10 C calculates the service of partial-load employees based on their hours worked as partial-load employees. This conclusion is critical to the analysis that follows. This brings us to Article 26.10 D. This article creates an obligation for each College to maintain records. The first record mentioned is the “record of the 13 employee’s job experience”. This is the record arising out of the calculation under Article 26.10 C. The additional record mentioned is the “record of the courses that the employee has taught and the departments/schools where the partial-load employee has taught”. This is a second and different record. Until this provision was added to the Collective Agreement, the Colleges had no obligation to maintain records of what courses anyone outside the bargaining unit may have taught. However, this new provision has added this obligation because Article 26.10 E indicates that anyone who is or was a partial-load employee can indicate an interest in teaching a course that s/he previously taught in the same departments/schools. Whether someone taught the course in the past is a factual matter. Neither Article 26.10 D nor E constrain the word “course” by qualifiers such as courses “taught as a partial-load employee”. Therefore, the record must be able to include part-time, sessional, full-time and/or partial-load teaching hours. It makes sense for the Colleges to keep track of the courses that its employees have taught. From a pedogeological perspective, it is often preferable to have someone teach a course who has had experience teaching it in the past. It is clearly a relevant factor for hiring a teacher. Further, in this day and age, electronic records are easily created and maintained. However, there is nothing in this Collective Agreement that suggests that Article 26.10 D has retroactive effect. It would be absurd to hold that the College is under an obligation to go back in time to create a record of all courses taught by anyone, especially those taught by people outside of this bargaining unit. However, there is now an obligation for the Colleges to create and maintain records of all the courses that College employees teach in their departments/schools. As will be explained in further detail below, this information is critical for one aspect of the application of Article 26.10 E. This also gives effect to the plain and ordinary meaning of “course” in Article 26.10 D. Employees interested in new partial-load appointments will have the responsibility of satisfying a College that they have previously taught a particular course in the department/school, even if they were 14 employed under a different collective agreement. Therefore, there may be shared factual inquiry into someone’s record of courses taught before this Collective Agreement came into effect. However, under this Collective Agreement, the obligation to create and maintain the record now rests with the Colleges. The fact that someone has previously taught the course in a department/school and the fact that someone is or was a partial-load employee are the two pre- conditions to becoming eligible to be considered a “registered partial-load employee” who may be entitled to be considered for an appointment to teach the same course. That is why this record is so important. 2. What courses create a priority hiring opportunity? The real question is what courses create a priority hiring opportunity under Article 26.10 E? Article 26.10 D sets up the factual circumstances that give past and current partial-load employees the right to be considered for future partial-load course offerings. Their current or past partial-load status and the factual issue of having taught a course in a department/school is what makes a person eligible to be considered to be a registered partial-load employee for purposes of Article 26.10 E. Article 26.10 E then creates a way for a College to prioritize among eligible registered partial-load employees. Priority for the job is a different matter from eligibility. Further conditions for hire are set out in Articles 26.10 E (i) and (ii) and are not at issue in this case. The priority hiring opportunity among the employees entitled “to be offered the course assignment” is determined by the eligible employee with “the most service”. Service was addressed and defined by the parties in Article 26.10 C and was based on partial-load hours. Article 26.10 is a job security provision and must be read as a whole to protect the job security of partial-load employees. In order to be consistent with the scheme of 15 the contract and give effect to the priority given to the stated purpose of partial- load job security, the term “service” in Article 26.10 E must be read to give effect to Article 26.10 C by giving preference to bargaining unit service. It cannot be applied in such a way that the courses create the hiring priority. Teaching the courses in the past is simply one aspect of the eligibility for future hire. Service determines hiring priority. This conclusion is also consistent with the fact that part-timers and sessionals are not members of this bargaining unit. Part-timers and sessionals are excluded by Schedule 1 of the governing statute: Full time academic staff bargaining unit 1 The full time academic staff bargaining unit includes all persons employed by an employer as teachers, counsellors or librarians, but does not include, . . . . (d) teachers, counsellors and librarians who are included in the part time academic staff bargaining unit; [emphasis added] Part time academic staff bargaining unit 2 (1) Subject to subsection (2), the part time academic staff bargaining unit includes all persons employed by an employer as, (a) teachers who teach for six hours or less per week; (b) counsellors or librarians employed on a part time basis; and (c) teachers, counsellors or librarians who are appointed for one or more sessions and who are employed for not more than 12 months in any 24 - month period. While sessionals have some rights under the full-time Collective Agreement, those rights are limited to the rights specified in Appendix 5. It would take very clear language to allow individuals who are not in this bargaining unit and are not covered by this Collective Agreement to acquire rights within this contract that affect bargaining unit members’ job opportunities and job security. If teaching on 16 a part-time or sessional basis is accepted as creating priority rights under this Collective Agreement, it would mean that working outside this bargaining unit could create vested rights that could affect the job security of partial-load members. That is not a conclusion that is consistent with the purpose of Article 26.10. I have not ignored the Union’s concern about the possibility that someone from “off the street” could possibly be considered on an equal footing to a past or current partial-load employee. However, the Employer’s example ought to be far more concerning to this bargaining unit. That example points out the possibility of two current or previously employed partial-load employees who register their interest in a course. One could have taught the course on a part-time basis more than someone who taught it as a partial-load employee. If the Union’s interpretation prevailed, the greater number of hours of part-time teaching could prevail over the hours spent as a partial-load teacher of the course. As a result, part-time teaching would trump partial-load teaching. Did the parties actually intend to create a situation where teaching outside of this bargaining unit could create vested rights that could affect a partial-load priority hiring opportunity? Since part-time hours cannot even enter the equation under Article 26.10 C, and since Article 26 only pertains to partial-load employees, it cannot be concluded that anything other than courses being taught by a partial-load employee are what matters for purposes of service under Article 26.10 C. It must therefore follow that only partial-load service is relevant for purposes of hiring priority under Article 26.10 E. This is the only interpretation that favours the rights acquired as a partial-load teacher and that provides the security for partial-load employees that Article 26 is designed to protect. 3. Have the Colleges violated Article 26.10 D by refusing to create, maintain or make available to the Union a “registry” of partial-load employees’ job experience and a record of courses that the employee has taught? 17 There has not been any evidence presented. However, I understand from the submissions that many Colleges may not have created or maintained records of all the courses that partial-load employees have taught in the past, in any capacity. As mentioned above, nothing suggests that the Colleges were under an obligation to do this before this Collective Agreement came into effect. That obligation now exists and covers partial-load job experience as defined in Article 26.10 C. As I have concluded above, the new obligation also includes the requirement to keep a record of all courses taught on a part-time, sessional, full- time and partial-load basis. This information is critical for the College’s administration of Article 26.10 E so that past and future partial-load employees’ eligibility for registration and consideration for future appointments can be established. This in turn will allow the College to determine who is eligible to be offered the course assignments and then determine their hiring priority based on partial-load service. Therefore, the records must now be created and maintained for the life of the contract and while this language remains herein. Also as mentioned above, this does not mean that the Colleges are obliged to engage in a retrospective exercise to fulfill this obligation. Registered partial-load employees who are interested in being employed as partial-load employees in the following year will have the responsibility of providing evidence of the fact that they taught the course under previous and/or other collective agreements. The Union is also seeking a declaration that the Colleges make the records of employees’ service and courses available to the Union. However, as the Union properly acknowledged, Article 26.10 D does not explicitly state that the College is required to provide the Union with these records. This Collective Agreement has several provisions that specify the Colleges’ obligations to provide the Union with information. For example, Article 27.04 A(iii) explicitly obligates each College to prepare and post a seniority “List” of all “partial-load employees employed since the previous January, showing the employee’s name, division or department, and accumulated service to date.” Significantly absent from this List is the added requirement to include the courses that the partial-load employees 18 have taught. Similarly, Article 7 sets out the Colleges’ obligations to provide a rationale for its staffing and lay-off decisions. Nowhere is there an obligation for the Colleges to provide the Union with information about what courses an individual part-time or sessional employee has taught. Nowhere in the Collective Agreement is there a provision obligating the Colleges to provid e the Union with a ‘list’ or ‘registry’ of courses all their partial-load employees have taught. What Article 26.10 D does do is create an obligation on the Colleges to create and maintain a “record of partial-load employee’s job experience” and a record of “the courses that employee has taught and the department/schools where the employee has taught such courses”. Those records are crucial for the College’s application and administration of Article 25.10 E. The College will not be able to apply the prioritization and ensure partial-load employees’ job security without such a record. These records must be kept for each partial-load employee. When two or more partial-load employees could be entitled to a course assignment, their relative service can only be determined by comparing their individual “records” created pursuant to Article 26.10 D. If there is a dispute about whether the College has properly applied the prioritization, there is no doubt that the Union would be entitled to production of the affected employees’ records if the dispute makes its way to arbitration. In a similar but different context, I quoted from the Rolling Stones in my earlier award concerning George Brown College and OPSEU, supra: You can't always get what you want But if you try sometimes you might find You get what you need It is not always just a question of getting “what you need”. Sometimes it may be equally important to get what you need, when you need it. What the Colleges and the Union both “need” is a way to avoid costly and preventable arbitrations. Accordingly, when a question of competing individuals’ claims to a partial-load 19 assignment arises, it would be prudent for the College to provide the Union with the relevant records of the affected employees at an early stage. That would enable the Union to advise its members of their relative rights and may even lead to an early and efficient resolution of such disputes. The Union may “need” the information about competing employees’ records of service and courses taught so that it can make an informed decision about whether to file and support a grievance. However, it cannot be concluded that the College has an ongoing obligation to provide the Union with the records mandated in Article 26.10 D for all partial-load employees, given the current wording of the Collective Agreement. For all these reasons the grievance is allowed in part. I have accepted the Union’s argument that the Colleges are now required to begin to create and keep records of all the courses that employees teach in a department/school, whether on a part-time, sessional or partial-load or even full-time basis. However, I have accepted the Colleges’ interpretation of Article 26.10 E that creates priority hiring opportunities based on partial-load service as calculated in Article 26.10 C. Dated at Toronto this 17th day of July, 2019 ______________________ Paula Knopf Generated by CamScanner