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HomeMy WebLinkAboutUnion 08-08-06 .. IN THE MATTER OF AN ARBITRATION I' ~ ~ rj. 1 l\t,b 1 0 ?GOS BETWEEN cr~\\:::\ii-;l:\jLt. Lj::.i",~:"~ i FANSHAWE COLLEGE ("the College") and ONTARIO PUBLIC SECTOR EMPLOYEES' UNION LOCAL 110 ("the Union") REGARDING A GRIEVANCE CONCERNING ARTICLE 7.02 (vi) (UNION GRIEVANCE # 2005-0-110-0177) BOARD OF ARBITRATION: PAMELA COOPER PICHER MICHAEL RIDDELL SHERRIL MURRAY - CHAIR - COLLEGE NOMINEE - UNION NOMINEE APPEARANCES FOR THE COLLEGE: Robert J. Atkinson Linda Ballantyne - Counsel - Director, Human Resources APPEARANCES FOR THE UNION: Tim Hannigan Darryl Bedford - Counsel - Acting Chief Steward A hearing in this matter was held in London, Ontario on February 28, 2008. .. AWARD The Union has filed a grievance alleging that the College has acted in breach of article 7.02(vi) of the collective agreement by failing to provide the Union with sufficient information at the Union/College Committee (UCC) meetings. More specifically, the Union asserts that pursuant to article 7.02 (vi) of the collective agreement, the College, if requested by the Union Local, is obligated at UCC meetings to provide the Union with its rationale for hiring or assigning work to non full-time personnel, Le. sessional, partial-load or part-time employees. In contrast, the College asserts that before such an obligation is triggered under article 7.02(vi) for partial-load or part-time appointments, the Union must first demonstrate that there is a body of work being performed by non full-time employees that would support the filling of one or more full-time positions. Article 7.02 provides, in part, as follows: Article 7 UNION/COLLEGE COMMITTEE (LOCAL) 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; 2 (ii) clarification of procedures or conditions causing misunderstanding or grievances; (iii) an internal complaint process to facilitate the resolution of employee complaints that do not fall within the provisions of 11.01, 11.02, Article 32, Grievance procedures, or Article 33, Expedited Arbitration Process; (iv) other matters which are mutually agreed upon; (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. [emphasis added] Article 2, Staffing, referred to in article 2.07(vi), stipulates, in part, the following: Article 2 STAFFING 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load teaching positions, as defined in Article 26, Partial-Load Employees, subject to such operations requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market 3 acceptability of the programs to employers, students, and the community. 2.03A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post- secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. 2.03B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum 12 months sessional employment in a 24 month period. 2.03C If the College continues a full-time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full-time bargaining unit position and shall fill 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. [emphasis added] Additional provisions pertinent to the grievance include article 27.12, Personnel Lists, and Appendix V, Sessional Employees, as follows: 4 Personnel Lists 27.12 During the last week of September, January and May the College shall notify the Union Local President of all personnel covered by the Agreement hired or terminated since the last notification, together with the classification, location and Division or Department concerned. At such times, the College shall also include notification of all hirings of personnel assigned to teach credit courses including, in particular, sessional appointments. APPENDIX V SESSIONAL EMPLOYEES 1. The terms of this Appendix relate employed on a sessional basis. employees are excluded from the unit. to persons Sessional bargaining 2. A sessional employee is defined as a full-time employee appointed on a sessional basis for up to 12 full months of continuous or non- continuous accumulated employment in a 24 calendar month period. Such sessional employee may be released upon two weeks' written notice and shall resign by giving two weeks' written notice. 4. If a sessional employee is continued in employment for more than the period set out in paragraph 2 of this Appendix, such an employee shall be considered as having completed the first year of the two year probationary period and thereafter covered by the other provisions of the Agreement. The balance of such an employee's probationary period shall be 12 full months of continuous or non-continuous accumulated employment during the immediate following 24 calendar month period. 5 6. Pursuant to 7.02 Union/College Committee (Local), if requested by the Union Local, the rationale for a sessional appointment by the College shall be subject of discussion. 7. Pursuant to 7.02 Union/College Committee (Local), 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. [emphasis added] As set out above, article 2.02 of the collective agreement stipulates that, "[t]he College will give preference to the designation of full-time positions as regular rather than partial-load teaching positions... subject to ... operational requirements..." Similarly, article 2.03A mandates that, "[t]he College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions... subject to ... operational requirements... " It is within the context of this article 2 preference for full-time positions over partial-load and sessional assignments that this grievance arises respecting the timing of the alleged obligation of the College at UCC meetings, when so requested by the Union, to "explain its rationale for its application of Article 2, 6 Staffing...", pursuant to article 7.02(vi), by providing its rational for its non full- time appointments. At a later point in the process, Le. once a grievance respecting an alleged violation of article 2 is brought to arbitration, the Union bears the onus of establishing a prima facie case of a breach of article 2 by the College, Le. a prima facie case that the College failed to abide by its obligation to give preference to full-time positions over partial-load and sessional positions, subject to operational requirements. The consistent jurisprudence reveals that for the Union to meet its onus of establishing a prima facie case, it must "demonstrate that there is adequate work to justify the filling of [a full-time] position" or "that there is a body of work which translates into a full-time position". (See Re Georqe Brown Colleqe and OPSEU, decision of a board of arbitration chaired by Arbitrator Owen B. Shime dated December 23, 2002 at pp. 2 and 6 (hereinafter referred to as "Re Georqe Brown Colleqe (Shime) 2002".) The further consistent jurisprudence indicates that once the Union has established a prima facie case, the evidentiary onus then shifts to the College to "[adduce] evidence to show that the 'preference' indicated for full-time positions is subject to 'operational requirements' pursuant to Articles 2.02 and 2.03A". (See Re Georqe Brown Colleqe (Shime) 2002 at p. 3). (See also Re Alqonquin Colleqe and OPSEU, decision of Paula Knopf dated May 27,2003 at pp. 20-21; Re St. Lawrence Colleqe and OPSEU, decision of a board of arbitration chaired 7 by Arbitrator Owen B. Shime dated May 18, 2005 and Re Fanshawe Colleqe and OPSEU, decision of a board of arbitration chaired by Pamela C. Picher dated July 29,2005.) While the above evidentiary procedures have been developed for the arbitration of article 2 grievances, the focus of this grievance centres on the exchange of information that is to take place at a UCC meeting, a meeting that the collective agreement anticipates will normally take place prior to the processing of a grievance respecting an alleged violation of article 2. Pursuant to article 27.12, set out above, the College regularly notifies the Union at stipulated intervals of all full-time, partial-load, sessional and part-time personnel who have been hired and/or assigned to teach credit courses, along with the classification, location and Division or Department concerned. Counsel for the College notes that it has additionally agreed, if requested by the Union, to provide the term timetables for all non full-time staff, as well as the course information sheets which describe the respective courses for the students. It is common ground that when the College prepares its article 27.12 lists, it further sets out for the sessional appointments its rationale for the hiring of the sessional teachers. Whether the College, when requested by the Union, is obligated to similarly provide its rationale for the hiring of the partial-load and 8 part-time teachers at the stage of the UCC meeting is the focus of the instant arbitration. Respecting the scope of the requested rationale, the Union is seeking enough detail to understand the manner in which the College applied article 2 in making its teaching assignments but not the level of information that might be required for the College to counter the Union's prima facie case in an article 2 arbitration. In maintaining that article 7.02(vi) requires the College at a UCC meeting to provide its rationale for hiring both partial-load and part-time personnel, along with sessional appointments, the Union emphasizes that article 7.02 (vi) not only expressly stipulates that "[t]he College shall explain its rationale for its application of Article 2, Staffing" but also places an obligation on the College at the UCC meeting to "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." Counsel for the Union asserts that to make such discussions of feasibility meaningful, the Union first needs to know the College's rationale for its assignment of work to sessional, partial-load and part-time employees because otherwise, to use counsel's words, the Union would be "shooting in the dark" in making its feasibility representations respecting the assignment of work on a full-time basis. 9 The Union fully recognizes the College's entitlement to hire partial-load, sessional and part-time personnel as opposed to regular full-time personnel when operational requirements support such work assignments. The Union submits, however, that from a labour relations standpoint, the benefit of being informed of the College's rationale for hiring non full-time personnel at the stage of the UCC meeting is that if the College's explanation reflects legitimate operational requirements, the Union might well be able to drop its concern regarding given non full-time appointments. The process would then yield the labour relations benefit of narrowing, Le. minimizing, those situations where the Union would end up proceeding to grievance and arbitration. Counsel asserts that it is contrary to sound labour relations to force the Union to file a grievance alleging a breach of article 2 in order to obtain the College's rationale for its non full-time work assignments when there is solid potential for the avoidance of such grievances in the first place if the College provides its rationale at the earlier stage of the UCC meetings. The Union further emphasizes that when making its feasibility representations at the UCC meeting stage, it is not restricted to arguing that the College has breached article 2 in its work assignments. Counsel argues that the UCC meeting is where the parties are intended to have full and frank discussions respecting the hiring of non full-time staff, even if the assignment of the partial- 10 load, part-time or sessional employees might not actually constitute a breach of article 2. To further support its position, the Union emphasizes that article 7.02(ii) mandates that an appropriate subject matter to be discussed at a UCC meeting is the "clarification of procedures or conditions causing misunderstanding or grievances". Counsel maintains that having the College supply its rationale for its non full-time assignments fits precisely within the scope of a "clarification of ... conditions causing misunderstanding or grievances". The College interprets its obligation under article 7.02(vi) differently. Counsel points to article 7.02(v), noting that by its clear language the College, if requested by the Union at the UCC meeting, is expressly obligated to make "the rationale for a sessional appointment" "the subject of discussion". Counsel asserts that if the College were equally so obligated with respect to the partial- load and part-time appointments through article 7.02(vi), as argued by the Union, the wording of article 7.02(vi) in respect of partial-load and part-time personnel would be similar to that of article 7.02 (v) respecting sessional appointments. Accordingly, counsel for the College maintains that it is only after the Union demonstrates that there is a body of work being performed by non full-time personnel that could support a full-time appointment that the College would then 11 become obligated in the UCC meetings, pursuant to article 7.02(vi), to explain its rationale for the various partial-load and part-time assignments. Counsel for the College comments that this two-step procedure with its precondition of the Union demonstrating the requisite body of work is consistent with the jurisprudence under article 2. Counsel emphasizes that at an article 2 arbitration, the initial evidentiary onus lies with the Union to show a prima facie case of a body of work that would support a full-time position and that it is only after that that the evidentiary onus shifts to the College to supply its rational for its non full-time appointments to demonstrate that its non full-time assignments were the result of "operational requirements" within the meaning of article 2. Counsel for the College comments that through the operation of article 27.12, pursuant to which the Union is periodically provided with lists of all hires, including all non full-time hires, along with their classifications, locations and Divisions or Departments, as well as through the College's additional agreement to supply timetables and course descriptions, the Union has sufficient information to come to a UCC meeting prepared to demonstrate a body of work performed by non full-time personnel that would support one or more full-time positions. Counsel for the College notes that to trigger the College's obligation to state its rationale for its various non full-time assignments at the UCC meetings, the College would not hold the Union to the standard of proof applicable in an 12 article 2 arbitration at which point the Union is required to put forth a prima facie case of a body of work performed by non full-time personnel that would support one or more full-time positions. Counsel indicated that what the College wants at the UCC meeting is a framework in the form of the alleged body of work within which to provide the rationale for the related non full-time positions. Counsel maintains that it would waste considerable time for the College to have to provide its rationale for non full-time appointments in a vacuum, Le. in the absence of the context that would be provided by the Union through setting out its alleged body of work. Counsel emphasizes that the rationale for the assignment of a non full- time teacher may legitimately change over multiple terms which, in his submission, makes it all the more important for the College to have the context of the Union's alleged body of work when stipulating its rationale for any particular non full-time position. Accordingly, counsel for the College maintains that since the College at an article 2 arbitration is not required to set forth its rationale for non full-time appointments until the Union has established a prime facie case of a body of work, it does not seem appropriate that at the earlier stage of a UCC meeting the College would be required to do so without the Union first being required to demonstrate the relevant body of work, even if not to the standard of a prima facie case. Given the evidentiary requirement under an article 2 arbitration, counsel asserts that the Union has the order of things backwards for UCC meetings. Counsel comments that what the Union is asking the College to do at 13 UCC meetings turns article 2 on its head because at an article 2 arbitration the College does not need to provide any justification or rationale for its hiring of non full-time employees until after the Union has first put forth a prima facie case of a body of work. In response to the College's submissions, counsel for the Union disputes that the difference between the wording of articles 7.02(v) and 7.02(vi) signals that under article 7.02(vi) the obligation on the College to provide its rationale for partial-load and part-time employees is only triggered if the Union first presents evidence of a body of work, a concept that is not even mentioned in the words of article 7.02(vi) itself. Counsel for the Union emphasizes that under the collective agreement the parties have treated sessional employees quite differently from partial-load and part-time appointments. Counsel contends that the difference in language between article 7.02(v) and (vi) is simply reflective of the broader circumstances in respect of which the College may be required to provide its rationale for sessional employees. Counsel for the Union observes, for example, that under article 7.02(vi) the College's obligation to provide an explanation for the partial-load and part- time appointments is limited to the College's application of article 2, Staffing, or article 27.05(iii). For sessional employees, on the other hand, counsel maintains that the circumstances in respect of which the College is obligated to provide its rationale is not limited to the College's application of article 2 and could well 14 extend to other factors affecting sessional appointees, as set out in Appendix V, such as their rollover to full-time status. Counsel for the Union comments, in other words, that what is different for the sessional appointments, on the one hand, and the partial-load and part-time appointments, on the other, is not the process for providing the rationale for the non full-time appointments at UCC meetings but rather is the extent of the collective agreement provisions in respect of which the rationale is to be provided. For sessional employees the obligation to provide the rationale is not limited to discussions about the College's application of article 2 and 27.05(iii), while it is so limited for partial-load and part-time appointments. In support of the Union's position, counsel relies particularly on a decision between the parties in Re GeorQe Brown ColleQe and OPSEU, decision of a board of arbitration chaired by Paula Knopf dated December 17, 2004, hereinafter referred to as the "Re GeorQe Brown (Knopf) 2004". Counsel emphasizes that Re Georqe Brown (Knopf) 2004 determined that article 7.02(vi) obligated the College to provide the Union with its rationale for its non full-time appointments, inclusive of partial-load and part-time appointments, without any precondition respecting the production by the Union of evidence of a body of work performed by the non full-time employees that allegedly could form one or more full-time positions. 15 In contrast, counsel for the College asserts that Re Georqe Brown (Knopf) 2004 provides minimal guidance in the instant matter because in that situation the College already had a practice of providing the Union with the rationale for its partial-load and part-time assignments in its application of article 7.02(vi), such that its obligation to do so was not in issue before the Knopf board of arbitration. Accordingly, counsel for the College submits that the Knopf board's statements regarding the College's obligation to supply the rationale for partial load and part- time assignments are obiter since, in counsel's submission, the board was not required to make a determination respecting the College's obligation to provide its rationale under article 7.02(vi), given that the College was already doing so voluntarily. DECISION In Re Georqe Brown (Knopf) 2004, the board stated at p. 2 that the case before it was "a contract interpretation case launched to determine the extent of the Union's right to information under Article 7.02(vi) of the Collective Agreement" and that the grievance was filed "to determine what information and documentation must be provided by the College when requested." At p. 5, the board stated that, U[t]he fundamental dispute between the parties is over the extent and nature of information that must be provided to the Union under Article 7.02(vi) with respect to the use of non-full-time faculty." 16 In assessing the information producing requirements under article 7.02(vi), the board in Re Georqe Brown (Knopf) 2004 expressly recognized the nature of the evidentiary burdens in an article 2 arbitration (see pp. 33-35), as emphasized and detailed by counsel for the College in the instant matter. As noted, the initial onus rests with the Union to demonstrate a prima facie case of the existence of a body of work that would support one or more full-time positions before the burden shifts to the College to justify its decision not to assign a full-time position. Accordingly, the board in Re Georqe Brown (Knopf) 2004 was cognizant of the respective article 2 evidentiary burdens when determining the extent of the College's obligation under article 7.02(vi) to provide the Union with information respecting rationale at a UCC meeting. At p. 35, the board in Re Georqe Brown (Knopf) 2004 stated that the College's "duty to explain any non full-time appointment arises not just at arbitration [but also] ... much prior to litigation... under Article 7.02(vi) [which] ... promises that the 'College shall explain its rationale for its application of Article 2 and 27.05(iii).' " Accordingly, the board stated at p. 35 that, "the crux of this case becomes what is required to fulfill this duty of explanation." The board in Re Georqe Brown (Knopf) 2004 determined that included within the College's obligation under article 7.02(vi) is the duty to provide an explanation of rationale for its decision to hire non full-time faculty and that such information is required, among other information, to fulfill the purpose of article 17 7.02(vi) discussions, which the board stated at p. 35 is "the avoidance of unnecessary grievances." At pp. 35-42, the board reasoned as follows: The Union argues that it needs specific information to 'audit' and enforce the preference for full-time hiring. In order to address this argument, it is important to define the Union's role with regard to this Article. The Union is given the right to make 'representations ... with respect to the assigning of work on a full-time or 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.' This is a right to make representations. This is put in the Collective Agreement for a reason. It provides a check and balance for the contract's administration and ideally allows the parties to avoid the costs and disruptions of arbitration every time the Union has suggestions or concerns about appointments. Indeed, Article 7.02(ii) says that the UCC meetings can include discussions about 'conditions causing misunderstandings or grievances.' Therefore, a primary purpose for the discussions is the avoidance of unnecessary grievances. However, the Union's right to make representations does not make the Union an equal partner or a co- determinate with regard to staffing decisions. The right to hire and manage, subject to specific provisions in the Collective Agreement, solely resides with the College (Article 6). The College does not have to secure the Union's approval for non-full- time appointments, but it does have to explain the rationale for the decision and consider any representations the Union may offer as alternative. Accordingly, the right to make representations remains a real and important right in this collective agreement. A denial of the right to make representations would be a serious violation of the contract. For example, if management refused to participate in the UCC meetings or failed to explain its rationale, there would be a significant violation of the Collective Agreement. 18 The Union asserts that it needs specific information to make the right of representation in this Article effective. Indeed, the provision would be meaningless if the Collective Agreement simply contemplated the Union shooting in the dark at the meetings. On the other hand, nothing in the language of the Article suggests that the College is required to provide forensic proof to support its decisions. As admitted by the Union, many non-full-time appointments are accepted without challenge once certain rationales are presented. For example, the hiring of non-full-time faculty to replace somebody on leave or to teach pilot courses or address an influx of students is otten accepted as sufficient explanation or rationale for the hiring of non- full-time faculty. Therefore, we do not accept the Union's submissions that it needs sufficient information to 'independently assess' all the details of the factors that go into a hiring decision. That would enmesh the Union in a level of minutia that is neither contemplated by the Collective Agreement nor required for the Union to fulfil its duty to its members. We note that the College has emphasized that it recognizes its obligation to provide the rationale for its hirings. This must also be seen in the context of staffing decisions made within Articles 2 and 27. Article 7.02(vi) requires that the rationale for those decisions must be explained. Therefore, the College must be able to explain to the Union the operational requirements that prompted the staffing to be carried out in the fashion that the College has decided. However, the Union wants even more than that with respect to workload. . . . Clearly, Article 7.02(vi) does not mandate the College to package and provide data in any specific way. The Union is also seeking 'sufficient information to independently assess the nature of any operational requirements put forth by the College as the reason for hiring non-full-time employees.' As stated above and as accepted by the College, the 19 College must be in a position to identify and justify its rationale for hiring non-full-time faculty. Ultimately, that justification can be challenged at arbitration if an Article 2 grievance is launched. Absent a legitimate explanation or proof, the appointment could be overturned by a Board of Arbitration. However, for purposes of Article 7.02(vi), the College need only 'explain its rationale.' It need not prove its case at the UCC meeting, but it must explain its decision to the Union. This puts a practical obligation on the Departments to be in a position to explain any operational requirements that lead to the decision to utilize non-full-time appointments. Because the Collective Agreement requires that the College give preference to the designation of full-time positions, the Department doing the hiring, or the College itself, must address operational requirements and be capable of explaining the decision to hire a non-full- time faculty member. Failure to provide an explanation or rationale for the decision will frustrate the purpose of the Article 7.02(vi) meetings. But provision of the underlying proof, data or statistics that may support the rationale is not required by the Article. Again, the rationale must be communicated to the Union in sufficient detail to be understood, but it need not be proven. The Union is entitled to know why the College did not schedule the courses in a manner that gave preference to the employment of full-time staff. The Union is also asking to be told about any 'additional or other factors considered by the College in making a decision pursuant to Articles 2 or 27'. Without doubt the Union is entitled to know if any 'other additional factors' were considered by the College in making its decision. Indeed, it is recognized that the list of operational requirements in Article 2 is not exhaustive and many factors may come into play with regard to appointments. While the College can and should articulate these factors as the rationale for the decisions, the College is not 20 obligated to supply the Union with all the factual and supportive data behind those factors. When and if the College is unable to satisfy the Union regarding the explanation, the Union has the option of launching a grievance. Ideally, the exchange of information and suggestions at the UCC meetings will avoid the necessity of a grievance. Where does this leave the parties? First, we have reminded the College that it has to be in a position to explain its use of non-full-time teachers because the Collective Agreement mandates that the College will give preference to the designation of full-time teaching positions. We note with approval Ms. Hood's initiatives that have attempted to address the mandates of Article 7. Therefore, those doing the hiring must recognize and respect the full-time preference and be able to identify and communicate the operational requirements that were invoked to justify any non-full-time appointments. Recognizing that not all of these appointments will be challenged by the Union, nevertheless, when and if the Union raises questions about the appointments, the College must be in a position to explain, at the Article 7.02(vi) UCC meetings, the operational requirement and/or rationale that it invoked when deciding to hire a non-full-time persons. ... [emphasis added] As the board in Re Georoe Brown (Knopf) 2004 noted at p. 33, it was not charged with interpreting whether the College had breached article 7.02(vi) but rather was asked to provide an interpretation of the respective rights and obligations under article 7.02(vi). Accordingly, given the scope of the Knopf board's mandate in interpreting article 7.02(vi), this Board declines to adopt the College's perspective that since the College had already, on its own, developed the practice of providing the rationale for its non full-time appointments, the Knopf 21 board's comments respecting its obligation to provide the rationale for such appointments under article 7.02(vi) is simply obiter and to be accorded minimal weight. Moreover, this Board does not accept the College's further and alternative submission that the Knopf board's conclusion is wrong respecting the College's obligation to provide its rationale for non full-time appointments under article 7.02(vi). This Board fully endorses and adopts the conclusion and rationale of the Knopf board regarding the College's obligation under article 7.02(vi) to provide the Union, when so requested at a UCC meeting, with the rationale for its non full-time appointments, inclusive of partial-load and part-time, in sufficient detail that the reasoning may be understood. This Board, therefore, concludes that it is not necessary for the Union to first bring forth in UCC meetings evidence of a body of work that it maintains would support the assignment of one or more full- time positions in order to trigger the College's obligation to supply its rationale for its non full-time appointments. This Board agrees with the assertion of the Union that the College's obligation to provide its rationale for its various non full-time appointments when requested by the Union at a UCC meeting promotes the labour relations goal of minimizing grievances and costly arbitration. As noted by the Union, understanding the College's rationale for any given non full-time appointment, 22 may well enable it to accept the non full-time appointment and to question it no further. The Board does not share the concern of the College that the above interpretation of article 7.02(vi) "turns article 2 on its head". Article 2 establishes the College's obligation to give preference to full-time positions over sessional and partial-load appointments unless operational requirements dictate otherwise. In any such article 2 arbitration, the onus is on the Union to prove an allegation that the College has acted in breach of its article 2 obligation to give preference to full-time teachers. As such, the Union is obligated at arbitration to set forth a prima facie case before the College is called upon to defend or justify its non full- time appointments. Article 7.02(vi) UCC meetings occur prior to the adjudication of grievances at arbitration. These are joint Union/College meetings to promote discussion in the subject categories delineated in article 7.02. By express design, they are not legal proceedings. The Union does not bear a "burden of proof." Nor will the College "lose" if it does not "prove" the correctness of its stated rationale for a non full-time appointment. There is no collective agreement or labour relations requirement that the order of "presentation" at the UCC discussions should reflect the legal order of presentation at an article 2 arbitration. There is no identity of purpose between the two proceedings that would mandate a parallel order of presentation. In fact, the nature and purpose of the two are so decidedly 23 different that they reasonably support a difference in the timing of when the College becomes obligated to come forward with an explanation of its rationale for its various non full-time appointments. As indicated expressly in article 7.02(vi), the UCC meetings are intended to achieve "clarification of ... conditions causing misunderstanding or grievances". As stated by the board in Re Georqe Brown (Knopf) 2004 at p. 35, "a primary purpose for the discussions [at the UCC meetings] is the avoidance of unnecessary grievances." It is when discussions at a UCC meeting have not succeeded in dispelling such misunderstandings between the parties that the situation that has been discussed at a UCC meeting might have to be moved to grievance and arbitration and, thereby, inevitably become more formalized. Once at arbitration, the focus is necessarily narrowed to adjudicating the parties' respective rights and obligations under the collective agreement, at which stage procedures reflective of the parties' respective burdens of proof are carefully enforced as a fundamental part of our rule of law. Accordingly, if the order of presentation at a UCC meeting is different from the order of presentation at arbitration, if the timing of the College's obligation to come forward with its rationale for its non full-time appointments is "turned it on its head", as asserted by counsel for the College, such is not intrinsically inappropriate because it reflects the very different purposes of the two proceedings. The UCC meetings are designed in part to promote a full and frank #. 24 discussion to dispel misunderstandings and avoid grievances while the arbitration hearings are designed to formally adjudicate the parties' legal rights and obligations under the collective agreement. Moreover, as a practical matter, confusion and uncertainty might well arise at the UCC meetings over a difference of opinion respecting how much and what kind of "evidence" the Union would have to bring to the UCC meeting regarding the alleged body of work for the College to acknowledge that its obligation to provide its rational had been triggered. Such procedural disputes would do little to further the purpose of UCC meetings, as described above, particularly when the production of evidence of an alleged body of work is not even mentioned in article 7.02(vi). Additionally, this Board is satisfied that the difference in the language between article 7.02(v) for sessional employees, on the one hand, and article 7.02(vi) for non full-time employees more generally, on the other, does not detract from the Union's contention that article 7.02(vi) requires the College to come forward with its rationale for the non full-time positions without the precondition of evidence of a body of work. The Board accepts the Union's assertion that the rights and obligations of the sessional employees as set out, in part, in Appendix V are sufficiently unique as to reasonably explain the broader language of article 2.07(v). The differences in the wording between articles 2.07(v) and 2.07(vi) does not support a conclusion that article 2.07(vi) requires . 25 the Union to present evidence of a body of work before triggering the College's obligation to offer its rationale for its non full-time appointments, particularly when the alleged precondition of a body of work is not set out either directly or impliedly in the wording of article 2.07(vi). Article 7.02(vi) establishes the College's obligation to "consider any representations which the Union Local may make with respect to the assigning of work... and the feasibility of assigning work on a full-time basis rather than on a sessional, partial-load or part-time basis." It further expressly stipulates that, "if requested by the Union Local, the College shall explain its rationale for its application of Article 2, Staffing..." It is apparent through the clear and unambiguous wording of article 7.02(vi) that the intended framework of the article 7.02(vi) discussions is that the College will first provide its rationale for its application of article 2, inclusive of providing the reason or rationale for its non full-time appointments, as clearly found by the Knopf board, after which the College will then consider the Union's representations respecting the feasibility of full-time work assignments. The only precondition to the College's duty to provide its rationale in a UCC meeting is a request by the Union Local. It is not an obligation for the Union to set out a body of work that the Union submits would justify the appointment of full-time faculty. To insert such a precondition to the College's obligation to explain in article 7.02(vi) would be to fly in the face of the clear wording of the collective agreement and to add a prerequisite that does not exist. 26 In the result, for the reasons set out above, the Board concludes that the Union is not obligated under 7.02(vi) to submit evidence of a body of work which it maintains would support the appointment of one or more full-time appointments in order to trigger the College's obligation as set out in article 7.02(vi) to "explain its rationale for its 'application of Article 2, Staffing...", which this Board finds includes providing the Union with the rationale for its non full-time appointments, inclusive of partial-load and part-time, if so requested. Accordingly, the grievance is hereby allowed. Dated in Ottawa, Ontario, this 6th day of August, 2008. Chair s.c. I dissent for reasons set out below. "Michael Riddell" College Nominee "Sherril Murray" I concur. Union Nominee 27 DISSENT OF COLLEGE NOMINEE, MICHAEL RIDDELL I dissent from the majority decision which concludes that under article 7.02(VI) the College is obligated to provide the Union with the rationale for the hiring for partial-load and part-time teaching positions. In reaching this conclusion, the majority ignores the language in 7.02(VI) which obligates the Union to take the initial step of making representations "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". When the Union has made such representations, the College is then obliged by the language of Article 7.02(VI) to consider the representations. Since the College provides the Union with sufficient information to make representations to support a claim for full-time positions instead of non full-time positions, the Union is in the position to make the representation as specified in Article 7.02(VI). The decision of the majority removes the obligation of the Union to make such representations and as a result and contrary to Article 32.03 D the majority has altered the terms negotiated by the parties to this Collective Agreement in Article 7.02(VI). Therefore, I would have dismissed the grievance. Dated at Toronto, Ontario this yth day of August, 2008 Michael Riddell Board Nominee