HomeMy WebLinkAboutUnion 19-11-07IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 415 (the Union)
AND
ALGONQUIN COLLEGE (the College)
RE: Grievance Number: 2018-0415-0120 (Union Grievance 18A166)
Appearing for the Union: Colleen Bauman, Goldblatt Partners LLP
Appearing for the Employer: Kecia Podetz and Luke Prior (student-at-law),
Emond Harnden LLP
Sole Arbitrator: Norm Jesin
Date of Hearing: October 29, 2019
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AWARD:
The grievance in this case alleges that the College is in violation of Articles 1, 2, 3 and 27 of
the collective agreement between the parties. The grievance is worded as follows:
The College has violated specifically, but not exclusively Articles 1.2.3. and 27 of
the Collective Agreement in that the College has failed to give preference to full-
time positions in areas associated with the cost centre 536 (including CE activity).
In addition, the Local contends that the College is repudiating the Collective
agreement in deliberate, ongoing and chronic violations of Article 2.
The thrust of the grievance appears to be a broad allegation that the College is in violation of
Article 2. More particularly the grievance would appear to suggest that the College has failed to
give preference to the assignment of full-time employees over partial load or sessional
employees in certain departments in cost centre 536, as required by Articles 2.02 and 2.03A. The
College has raised a preliminary motion asserting that the grievance is premature and should
therefore be dismissed. Alternatively, the College asserts that the Union has improperly
expanded the scope of the grievance by adding an allegation that the College has assigned part
time employees in order to avoid its obligations to hire full time employees as required by Article
2. This decision deals with the preliminary motion raised by the College. The facts giving rise to
this motion are as follows.
The relevant portions of articles 2.02 and 2.03A of the collective agreement provide as
follows:
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 operational requirements as the quality of the
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programs, their economic viability, attainment of the program objectives, the
need for special qualifications and the market acceptability of the programs to
employers, students and the community.
2.03 A 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, their economic
viability, 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. …
These provisions have spawned voluminous litigation between the parties. During the last
collective agreement, the parties were subject to an agreed to moratorium under which there
was to be no litigation of any claim under these articles. This continued existence of the
moratorium was in dispute between the parties in the last round of collective bargaining. The
present collective agreement resulted from an interest arbitration award which put an end to
the moratorium effective December 20, 2017. In addition, a provision was awarded (Article
2.03(d)) in which the Union was expressly prohibited from relying on any staffing assignments
during the moratorium in any grievance alleging a violation of these provisions.
The grievance in this case was filed in May of 2018. According to the Union it was filed after
it received data from the College (which the College is obliged to provide under Article 27.12)
showing a potential violation of Article 2 in cost centre 536. More particularly, the data confirmed
that in the winter semester of 2018, 63 partial load hours and 3 sessional hours had been
assigned in cost centre 536S (business English). In addition, 41 partial load teaching hours had
been assigned in centre 536L (the law clerk program) and 73 teaching hours had been assigned
to partial load and/or sessional teachers in centre 536 MX and P (office and ministration). It was
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the Union’s view that this level of assignment would run afoul of Article 2 unless the College could
establish that such levels of assignments in favour of partial load and sessional teachers over full
time teachers were made due to “operational requirements”. The Union therefore filed its
grievance and indicated in the grievance that the violations were “chronic and ongoing”. The
grievance did not however identify the precise subsections of centre 536 that it was com plaining
about.
The parties did not meet during the grievance procedure. By letter dated September 25,
2019, counsel for the College asked the Union to provide particulars of its grievance. In response
dated October 1, 2019, the Union identified the cost centre subsections for which it was pursuing
its claim. It further indicated that in centre 536 L, the College had assigned hours to part time
personnel after the filing of the grievance in order to circumvent the collective agreement.
It is the position of the College that the violations alleged cannot be established on data
from only one semester. That is because the viability or operational justification for a particular
assignment cannot be determined in one semester., according to the College. Although the Union
does not formally concede that a violation of Article 2 can only be established by data from at
least 2 consecutive semesters, it does assert that it is relying on data not only from the beginning
of the winter semester of 2018, but from subsequent semesters on an ongoing basis. The College
maintains by relying on data not only from the winter of 2018, but also from subsequent
semesters, the Union is seeking to establish the violations alleged in the grievance through the
use of “post grievance” evidence. It further asserts that such evidence is inadmissible and further
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that the filing of a grievance in reliance on evidence not available when the grievance was filed,
is premature and ought not to be heard.
It should be noted that because of the position taken by the College, the Union has filed
a second grievance essentially based on the same allegations. Furthermore, in the second
grievance the Union intends to rely on the same evidence that it would rely on in this case. The
College agrees that but for the issue regarding part time hours, there is no reason why all the
allegations cannot be determined in the second grievance. But the College insists that although
the Union may deal with the substance of the dispute in the second grievance, it cannot proceed
with the grievance before me. The Union insists that that there is no reason that the allegations
should be deferred to the second grievance and that such deferral would only allow the College
to delay the required assignment of full-time personnel for another year.
In support of its position that the grievance is premature, counsel for the College relied
on texts as well as arbitral and judicial authorities. I will address the most pertinent authorities
put forward by the College and those relied on by the Union in response.
In Gorsky: Evidence and Procedure in Canadian Labour Arbitration, Release 2, (2019)
Toronto, Thomson Reuters Canada, c. 3.2, the author states that “a dispute must be “ripe” before
it can be processed to arbitration”. But at Footnote 1.2 the author adds “However, where certain
action is planned but has not yet taken place, the union need not wait for it to occur before
grieving. In such event it may file a policy grievance seeking an order that the anticipated action
would be contrary to the collective agreement.” The author cites the following cases in support
of this proposition: St. Joseph’s Hospital (1997), 65 L.A.C. (4th) 169 (Solomatenko); Fleet Industries
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Ltd. (2002), 112 L.A.C. (4th) 120 (Luborsky); Domtar Inc., [2007] O.L.A.A. No. 407 (Albertyn); and
St. Michaels Hospital, [2012] CarswellOnt 2507 (O’Neil). In the latter case a grievance alleging a
failure to accommodate the grievor’s disability was allowed to proceed even though the
employer had not yet made a decision on whether to provide the sought for accommoda tion.
Sault College, unreported, May 3, 2017 (Shime, A. Burke, L. Robbins) is a case more closely
resembling the case at issue. In that case, the college started a new program and staffed it with
partial load employees. The Union grieved during the first semester of the program. The college
argued that the grievance was premature because the program had not yet been established as
viable. The college argued that it had a right to assess the viability of the program before
committing to the assignment of full-time staff. At page 4 the Board wrote as follows:
In our view the timing of the grievance is a proper consideration in the
circumstances of this case. When the grievance was filed the program was new –
it had barely gotten off its feet and neither its viability nor future enrolment could
properly be assessed at that time. The timing is important because the facts in
dispute, as a general rule, crystallize at the time the grievance is filed. There may
be subsequent events that naturally flow from the crystallized dispute or recurring
or continuing violations that may be relevant, but this is not one of those cases. In
effect, the grievance filed was premature at the time it was filed, because it did
not allow for a proper assessment of the program and particularly, its viability and
future enrolment uncertainties, as the College claims. When the grievance
crystallized on the date it was filed the College was placed at a disadvantage
because there was insufficient time to assess any of the operational requirements
contemplated in Article 2.02. Where there is a new and niche program such as the
one in use, it must be given a fair trial in order to assess the various factors
contained in Article 2.02. The filing of this grievance did not allow for a proper
assessment. That does not mean that the College can run a new or niche program
with partial load staff indefinitely; there will come a time when the continual
hiring of partial load faculty will violate the Article 2 requirement that preferential
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treatment be given to full-time faculty, but that must be decided on a case by case
basis.
I would note that in the passage cited above, the Board was quick to note that the timing
of grievance was considered in the “circumstances of this case”. In that case, the program was
and the College had not yet determined that the program would be viable either on a financial
basis or based on enrolment levels, beyond the initial semester. That meant that even if the
program were to run for a number of semesters, the oblig ation to implement a preference for
full time staff would not begin until after the College could first determine that the program was
viable. Any ultimate violation of Article 2 would not begin until after that date. Because that
determination could not be made at the time of the grievance, any violation would have to
commence after the grievance was filed. That is different than the case before us.
In this case the programs referenced by the grievance are established programs whose
viability was not questioned before me. I cannot say at this juncture whether the evidence will
disclose any operational reason mitigating against the assignment of full time personnel in the
winter of 2018 and beyond. In the words of the arbitrator in St. Michael’s Hospital, the data relied
on by the Union, could reflect an arguable basis for the proposition that the College was failing
to and/or was about to fail to comply with its obligation to give preference to the assignment of
full time personnel. That is a significant distinction from the situation considered by the Board in
Sault College, where questions had been raised about the program’s viability.
The College also relied on the Supreme Court of Canada decision in Compagnie miniere
Quebec Cartier vs United Steelworkers et al., [1995] CarswellQue 24 (SCC) for the proposition that
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I should not consider post grievance evidence (as I would have to in this case) in determining
whether the College has violated the collective agreement. The issue before the Supreme Court
was whether an arbitrator could consider post discharge evidence in a dismissal case. The
judgment of the court was delivered by L’Heureux-Dube J., who stated at para. 13: “In my view,
an arbitrator can rely on such [subsequent event] evidence, but only where it is relevant to the
issue before him. In other words, such evidence will only be admissible if it helps to shed light on
the reasonableness and appropriateness of the dismissal under review at the time it was
implemented.”
My first observation is that the circumstances under consideration in Quebec Cartier are
distinguishable in that a discharge of an employee is an event that takes p lace in a discernable
moment in time. According to the College a violation of Article 2 can only be determined by
considering circumstances as they evolve over the course of at least two semesters. To put it
another way, a violation of Article 2 may be said to require a gestation period to determine
whether there has been a violation and when that violation commenced. I would also note that
the Justice L’Heureux-Dube left it open for an arbitrator to review post event evidence “where it
is relevant to the issue before him …[in other words] if it sheds light on the reasonableness and
appropriateness of the dismissal under review at the time it was implemented”.
In the present case, I cannot determine that post grievance evidence is irrelevant to the
issue before me. It may be relevant to shed light on whether the College’s assignment of staff
even in the first semester was in accordance with its obligation to give preference to staffing of
full-time personnel.
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I have also noted, as urged by Union counsel that in previous Article 2 cases arbitrators
have routinely been asked to consider post grievance evidence. See for example Algonquin
College, [2007] O.L.A.A. No. 290 (O’Neill).
Counsel for the Union submitted that when it receives data that raises a potential issue
of failing to provide preference to full time positions, it should not be required to wait for an
additional semester before filing a grievance. In the Union’s view, raising the issue when the data
is first received allows the College to consider whether continuing the staffing pattern will result
in a breach. It allows the College to consider a change to the staffing pattern if appropriate and
alternatively, to gather its evidence in a timely way to establish any operational justification for
its staffing assignments. In my view the St, Michael’s Hospital decision cited in Gorsky and relied
on by the Union is supportive of such an approach.
I do not discount the College’s concern that allowing the Union to file a grievance before
a violation could be firmly established could encourage the Union to routinely file grievances
where no violation would ever take place. I would point out however th at in this case the data
received by the Union could arguably form the basis of a violation of the agreement if repeated
in a second semester. This much is apparent even to the College as it concedes that the Union’s
second grievance could clearly proceed. I do not agree therefore that there is any utility in
requiring delaying the dispute, which is clearly arbitrable, to the second grievance.
For these reasons it is my determination that the motion that the grievance is premature
should be dismissed.
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That leaves the College’s motion to dismiss the Union’s allegation regarding the
assignment of part-time personnel as being an improper expansion of the grievance. In that
regard I would note that the grievance is drafted very broadly to include alleged “ongoing and
chronic violations of Article 2”. Nothing in Article 2 expressly restricts the ability of the College to
assign part-time staff. However, as noted in Algonquin College, at paragraph 47, other arbitrators
have allowed for the consideration of part-time hours as part of the “body of work” in an Article
2 grievance. I am not aware of any case in which part-time hours have been successfully relied
on to establish a violation of Article 2 and indeed, no such case has as of yet been put before me.
But given that such hours are being relied on to establish an Article 2 claim, I cannot say that the
claim constitutes an expansion of the claim. For this reason, this part of the motion must also be
dismissed.
I will therefore schedule further hearings to deal with the merits of the grievance.
Dated at Toronto, this 7th day of November, 2019.
____________________
Norm Jesin