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HomeMy WebLinkAboutUnion 19-11-211 IN THE MATTER OF AN ARBITRATION B E T W E E N: SENECA COLLEGE (the “College”) - AND – ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the “Union”) AND IN THE MATTER OF A GRIEVANCE CONCERNING ARTICLE 26 OF THE COLLECTIVE AGREEMENT David K.L. Starkman Arbitrator APPEARANCES FOR THE COLLEGE Wallace Kenny Counsel Alia Rashid Ted Bridges Haseeb Wali APPERANCES FOR THE UNION Christine Davies Counsel Frank Yee Jonathan Singer Mathew Cohen A Hearing in this matter was held on October 24, 2019 at Markham, Ontario 2 DECISION The Union grieves that the Employer has violated the provisions of Article 26 of the collective agreement by failing to notify all faculty who were eligible to register for the 2019 calendar year Partial Load Registry. The relevant portions of Article 26 provide as follows: 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. 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 2018-19 academic year. 26.10 E Subject to the application of Article 2.02 and 27.06 A commencing in the 2018 – 19 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 3 (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. The parties provided an agreed statement of facts as follows: AGREED STATEMENT OF FACTS 1. The bargaining unit includes partial load professors, who have more than 6 and up to 12 teaching contact hours per week. It has been an important concern of OPSEU to achieve greater job security for these members. Under the prior language in 26.10D, the College was required to keep a record of partial load employment, but employees were not required to take a positive step to register with the College. 2. In 2017 Arbitrator Kaplan awarded new language in Article 26.10C, D, and E of the collective agreement. For the first academic year (2018- 2019) the new language provided that individuals would be deemed to have been registered if they had worked as a partial-load professor between September 1 to December 31, 2017 (or any part thereof). The College’s records reflect there were 505 individuals who were deemed registered for the 2018-2019 academic year. Commencing in 2018, current and former professors had to register with the College to qualify for the priority in hiring for the upcoming calendar year i.e. 2019. 3. The Union raised concerns with the employer about the registry in an email on March 21, 2018. 4. The Union met with the College at the Union College Committee (UCC) to discuss the new language on July 26, 2018, and how faculty would indicate their interest to join the registry. One of the Union’s concerns was ensuring that individuals were provided with the information necessary to enable them to exercise their new rights under Article 26.10. The Union wanted the College to notify current and former partial load professors about the requirement to register and how to register with sufficient time to enable them to do so. The Union also wanted the College to notify not only current partial load professors but also current 4 part-time and sessional professors, who may be eligible to register based on past service. The Union also wanted individuals to be able to access information about their service and courses they had taught. 5. The College sent an email dated September 28, 2018 to current partial load professors only advising them of the Registry. This email was only sent to current partial load professors and not to past partial load professors, who may be current part-time and sessional professors. There would have been current employees, as well as former employees, who would not have received the notification. The email provided: Hello everyone: We are pleased to announce that the Partial-Load Registry has now been launched. Pursuant to Article 26.10 of the Academic Employees Collective Agreement, Seneca is required to create a Partial- Load Registry in order that partial-load employees may register their interest in being employed as a partial-load employee at Seneca for the calendar year 2019. Please note that October 30, 2018 is the deadline to register your interest in being employed as a partial-load employee at Seneca for the calendar year 2019. In order to access the Partial-Load Registry page please click on this link Have a great term and thank you for all of your contributions to Seneca college. Edward (Ted) Bridge Director, Employee and Labour Relations – Human Resources 6. The Union made its own efforts to publicize the college’s registry. This included emails, social media posts, and reference in the Union’s newsletters. 7. The College’s registry took place online. 404 individuals registered online, and of these 134 were not among the 505 individuals referred to in paragraph 2. The opening paragraphs of the on-line Registry provided as follows: Partial Load Faculty Registry eForm For Current or Previously Employed Partial Load 5 Employees Application Deadline for 2019 Calendar Year is October 30, 2018 Thank you for your continued interest in partial load employment with Seneca. This registry has been established in order for you, as a current or previously employed partial load employee of Seneca, to register your interest in being employed as a partial load employee for the 2019 calendar year. This registry is a result of newly negotiated language under Article 26.10D and 26.10E of the OPSEU Academic Employees Collective Agreement (October 1, 2017 to September 30, 2021)…. 8. After October 30, 2018 the Union learned from some individuals that they had not been notified of the registry and had missed the deadline. There were two individuals who advised us they were working as part-time professors during the fall of 2018, but had prior service as partial-load professors from 2017-2018, who were not aware of the registry and did not register in time. (Tonie Granata and Amanda Clare). 9. The UCC met again November 8, 2018, The Union brought up that it had previously requested that the College inform part-time and sessional professors of the registry and advised it had heard from some professors that they were not aware of it and had missed the deadline. The College advised that there were a few enquiries the day after the deadline expired by partial load professors who had worked last fall. The Union asked the College to extend the deadline. The College declined to do so. 10. Assignments for the winter term are generally first offered in late November. Pursuant to Article 26.03B, the College endeavours to issue all contracts prior to the start of the contract. 11. In 2019, the College opened the registration for 2020 in the winter semester. The College also posted the registration link on the “My Seneca” page that every current employee accesses when using the Seneca computer system. The College did not take any steps to notify past employees. 6 SUBMISSIONS OF THE PARTIES The Union acknowledged that there was no specific language in the collective agreement which explicitly required the College to give notice to partial-load employees of their option to register their interest in being employed as a partial-load employee in the following calendar year. In its view however, in order to give efficacy to the language in the collective agreement there was an implied obligation on the College to notify individuals of how to register their interest. Reference was made to the decision in RE McKellar General Hospital and Ontario Nurses Association (1986) 24 L.A.C. (3d) 97 (Butler) where at paragraph 14 the Board opined: 14…However, even if there is no distinction between the exercise of management’s discretion under the management rights clause and under a substantive provision of the collective agreement, the different conclusions in the Metropolitan Toronto Police and Council of Printing Industries cases can be understood in relation to the test for implying a term into the collective agreement. In essence, the test holds that an arbitrator (or board of arbitration) has the power to imply a term into a collective agreement if two conditions are met: (1) if it is necessary to imply a term in order to give “business or collective agreement efficacy” to the contract, in other words, in order to make the collective agreement work; and (2) if, having been made aware of the omission of the term, both parties to the agreement would have agreed without hesitation to its insertion The Union emphasized that this was new language in the collective agreement and that it was important language as it provided for job security to protect the rights of vulnerable partial-load employees which the Union had sought for a considerable period 7 of time, and in this regard reference was made to the decision in College Employer Council for the Colleges of Applied Arts and Technology and Ontario Public Service Employees Union (for Academic Employees), Partial Load Job Security, Article 26.10 D and 26.10 E, unreported (P. Knopf) July 17, 2019. Reference was also made to the decisions in Energy Fundamentals Group Inc. and Veresen Inc 2015 ONCA 514; M.J. B. Enterprises Ltd. and Defence Construction (1951) Ltd et al. 1999 1 S.C.R. 619 and Bhasin v. Hrynew 2014 SCC 71. The Employer submitted that there was no obligation in the collective agreement for the Employer to remind employees that they have the opportunity under article 26.10 D of the collective agreement to register their interest in being employed as a partial-load employee in the following calendar year. The Employer pointed out that when the parties intended for there to be an obligation to notify or consult, they expressly provided for this obligation in the collective agreement and reference was made to article 11.01 E 3 which placed an obligation on a supervisor to consult with teachers with respect to the method of evaluation and feedback for a course; article 27.04 A which required the College to prepare and post various seniority lists and to provide such lists to the Local Union President; article 27.05 (i) which required the College to notify the Union Local President of planned staff reductions; article 27.05(vii) which required the College to notify teachers of planned lay-offs; article 27.11 A which required the College to post notices of vacancies in the bargaining unit and send the notice to the Local Union President; and article 27.14 which required the College to notify teachers, in writing, if they are to be discharged from employment. 8 Reference was made to the decisions in The Algoma Steel Corp. Ltd. And USWA, Local 2251, 1990 CatrswellOnt 5750 17 C.L.A.S. 73 (Bendel), Ontario (Ministry of Community; Metropolitan Authority and A.T.U. Local 508 (1988) 1 L.A.C. (4th) 20(Cotter) and Social Services)and OPSEU (Dufour) 125 C.L.AS. 83 (F. D. Briggs), DECISION Article 26.10 D of the collective agreement gives current and certain previously employed partial-load employees the opportunity, by October 30th of each year, to register their interest in being employed as a partial load employee in the following calendar year. Article 26.10 E provides that the College shall give priority in hiring to certain partial-load professors in certain circumstances. There is nothing in Article 26 however which places an obligation on the College to notify current partial load employees or persons who taught partial load courses in previous years, of their option or opportunity to register their interest in partial-load teaching in future years. If the parties to the collective agreement had intended to place an obligation on the College or the Union or both to notify partial-load employees of the opportunity to indicate their interest in future partial-load teaching opportunities they could have done so. None of the decisions to which I was referred concluded that there should be an obligation placed on a College or an Employer to advise employees of their rights or options under the provisions of a collective agreement when such an obligation is not expressly provided for in the agreement. 9 I have carefully considered the Union’s submission that, in order for the Registry to be effectively administered, there must be an implied obligation on the College to provide notice to affected employees as to how they can access the Regis try. Article 26.10 D gives an affected employee the right to register their interest in being employed as a partial-load employee in the following calendar year. It does not specify how a partial- load employee is to register their intention and does not compel the College to establish a Registry although the formalization of the registration process would be beneficial to employees wishing to register and to the College in tracking those who have registered. There is also nothing in article 26 which requires the College to notify anyone as to how they can access the Registry, although the facts are clear that it did provide notice in September, 2018 to current partial-load employees, but not to professors who may have been part-time or sessional employees at that time and not to professors who might be entitled to register but who were not employed by the College at that time. The development of the Registry and the notice to only certain of the employees entitled to register, does not however create a positive obligation on the College to notify all potential partial-load employees who might be entitled to register. Considering all of the circumstances I have determined that the registration process described in Article 26 of the collective agreement does not require any additional language or presumptions in order for it to be implemented. The College therefore has not violated any of the provisions of the collective agreement Accordingly, the grievance is dismissed. 10 Dated at Maberly, Ontario this 21st day of November, 2019 David K.L. Starkman.