HomeMy WebLinkAboutArmstrong 20-03-03
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IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE
BARGAINING ACT, 2008
~ BETWEEN ~
NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(“EMPLOYER or COLLEGE”)
~ AND ~
THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“UNION”)
AND IN THE MATTER OF AN INDIVIDUAL GRIEVANCE (ARMSTRONG)
BEFORE: Deborah Leighton
FOR THE COLLEGE: Wallace Kenny, Counsel
FOR THE UNION: Tim Hannigan, Counsel
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Decision
Ms. Deborah Armstrong is a partial-load professor in the Office Administration Department of
School of Business and Management Studies. On September 11, 2018, she grieved that the
college denied her partial-load seniority in assigning her work in the fall term of 2018, contrary
to Article 26.10. The union's position, is that Article 26.10, amended in the last collective
agreement, entitled the grievor to be offered a course, which was assigned to another professor ,
(DV). This course assignment would have raised her hours from nine to 12. Thus, the college
has breached collective agreement and the grievor is entitled to a remedy.
The college’s position is that it has the right under the management rights clause, Article 6.01 to
assign work. The amendment to Article 26.10 did not change this fundamental right. Article
26.10 gives certain partial-load professors priority in “hiring” but no right to be assigned twelve
hours. The grievor was not entitled to be assigned the course in question. Thus, the college
denies any breach of the collective agreement.
The hearing into this matter preceded by way of agreed facts, documents, and oral argument.
The parties agreed that the issue before me is how to interpret new langua ge included in the last
collective agreement at Article 26.10 .
Summary of the Evidence
The parties agreed to the following facts. The college offered the grievor a partial-load
assignment for the fall semester on June 12, 2018, which she accepted. The assignment included
four courses for a total of 12 hours. Included in the partial-load assignment were two sections of
CAPA 1197. The college also offered DV a partial-load assignment for the fall semester on June
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12, 2018, which he accepted. The assignment included three courses and totalled nine hours
including two sections of CAPA 1197.
The college hired a new regular full-time employee in August and assigned her to teach a
number of courses, including two sections of CAPA 1197. As a result, the college offered the
grievor a new partial-load assignment on August 23, 2018, which she accepted. The new
assignment included three courses totalling nine hours, one of which was CAPA 1197. The
college also offered DV a new part-time assignment on August 23, 2018, which included one
section of CAPA 1197. Subsequently the college assigned one section of MICR 1583 to DV,
making his contract a partial-load assignment, again. The grievor had taught MICR 1583 in the
winter term of 2009. The grievor had a scheduling conflict with the section of CAPA 1197
assigned to DV and one of her assigned courses.
The Union’s Submission
Counsel for the union argued that it is important to compare the difference between the old and
new language in Article 26.10 E to appreciate the significance of the change in the wording . The
new language focuses on whether the partial-load employee has previously taught a course that
the college decides needs to be taught by a partial-load professor. In counsel’s submission, this
language changes the focus from an assignment of courses to an obligation to assign “a course”
that the partial employee has previously taught, if the assignment does not exceed 12 hours.
Counsel for the union submitted that if the new language required the college to give a partial-
load employee a priority in hiring only, if the individual had previously taught the course, then
subsection (ii) would have no meaning. Subsection (ii) provides that “the assignment of such
course will not cause the employee to exceed the maximum teaching contact hours for partial -
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load employees.” The college’s interpretation would require reading out the singular form of
‘course.’ This becomes clear when the old language is compared to the new. In the previous
collective agreement subsection (ii) provided that “the partial -load employee must have
previously taught the courses that form the new partial-load assignment.” (Emphasis added)
Therefore, in counsel’s submission, the new collective agreement language moves away from
partial-load assignments to the assignment of single courses. Counsel argued that this
interpretation is supported by the language at the end of the article which provides that where
two employees would be “entitled to be offered the course assignment, the employee with the
most service will be offered the first opportunity.” Thus, the change in language is significant, as
it moves away from assignment of a course load to the assignment of individual courses. Article
26.10, entitled “job security,” is designed to give some security to those who do not have much.
Counsel noted that the management rights clause in the collective agreement is subject to
provisions of the collective agreement. The parties may agree to fetter management rights by
including specific language to do so. In counsel’s submission, Article 26.10 fetters
managements right to assign work to partial-load professors. The college has agreed to fetter its
rights, if certain conditions are met. An employee’s years of service are considered according to
Article 26.10 C. The parties have negotiated the benefit that flows from that service. Article
26.10 D provides that a partial-load employee with service register their interest in being
employed as a partial-load employee by October 30 in each calendar year. If the individual
employee meets the criteria of Article 26.10 and has registered, he or she gets the benefit of
Article 26.10 E.
In this case the grievor was eligible and registered according to Article 26.10. The college
determined that a partial-load employee was needed to teach a section of MICR 1583. The
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college assigned this section of the course to DV. Both the grievor and DV had previously
taught this course. However, the grievor was senior to him and at the time was only assigned to
nine hours. Thus, counsel submits that grievor should have been assigned to teach this section of
MICR 1583, bringing her up to a 12-hour assignment. Counsel asked that the grievance be
granted, a declaration made on the breach of the collective agreement, and the grievor
compensated accordingly.
The College’s Submission
Counsel for the college argued that it is important to consider the amended article in the context
of the whole collective agreement and the history of the article. The college h as the right to
make staffing decisions pursuant to Article 6, the management rights provision. There is no
restriction on how the college must staff. Case law has indicated that any restriction on the right
to decide staffing must be explicit. There must be truly unambiguous language used to fetter
management’s right to assign work. And there is no specific language in Article 26 .10 E to
support the union’s position that partial-load professors have a right to work up to 12 hours if
they have taught the courses before, without considering operational needs.
Counsel noted that there are four categories of instructors: full-time professors, who have job
security; partial-load professors included in the full-time bargaining unit and covered by Article
26.10; part-time professors who teach six hours or less; and sessional professors, who teach
full-time hours on a contract basis. Article 2.02 gives preference to full-time professors over
partial-load, subject to operational needs and requirements. Article 2.03 A gives a preference to
full-time over sessionals also subject to operational needs. Notably, in counsel’s submission,
there is no preference for full-time professors over regular part-time employees. Thus, the only
preference in the collective agreement to hire is for full-time professors.
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More importantly, counsel argued, Article 2.03 A gives no preference for partial-load professors
over part-time and sessional instructors. Nor does Article 26.10 give a preference to work to
partial-load instructors over sessional or part-time. Subject to operational requirements, the
college gets to assign work as it sees fit. Thus, in the case here, the college acted within its
discretion when it assigned MICR 1583 to DV.
Counsel for the employer noted that the colleges identify the courses they need taught when they
hire a partial-load professor. The focus of assigning work remains on a partial-load contract of
over six to 12 hours. When the parties amended this article in 201 2, there was no change in the
college’s rights to determine what each professor would teach . Even full-time instructors do not
get to decide their teaching assignment . Apart from the calculation of hours, a full-time
professor cannot question the actual course assignment. Likewise, the college has the right to
decide and assign partial-load contracts.
Counsel argued further that if the partial-load professor has already been assigned a contract,
Article 26.10 E does not provide a priority in hiring, for a specific course. This is so even though
the assigned contract is not at the maximum permitted under the collective agreement. There is
no priority right to get contract of a maximum of 12 hours. The obligation to hire is over when
the partial-load professor is assigned over six hours. The grievor was accorded this right: she
was given a partial-load assignment of nine hours. Therefore, the college’s obligation under the
article was satisfied.
Counsel for the college observed further that the amendment to Article 26.10 E was a significant
improvement for partial-load professors, who in the past had to have a priority in all the courses
assigned. Now they only require a priority to teach one of the courses that they are assigned , and
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service credits were also improved – these are not a de minimus improvement. The college
asked that the grievance be dismissed.
The parties referred to the following cases in the submissions before me: OPSEU and College
Employer Council 134 C.L.A.S. 14 (2017)[Kaplan]; Fleming College and OPSEU, 125 C.L.A.S.
321 (2016) [Leighton]; Sault College and OPSEU (unreported, 2016) [Parmar].
Analysis
The question here is how new language included in Article 26.10 E of the collective agreement
(2017-2021) should be interpreted. The article provides as follows:
Subject to the application of Articles 2.02 and 27.0 6 A, commencing in the 2018 -
2019 academic year, where the school or department with in 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 h iring 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
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 to (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 context of this article within the whole collective agreement is important to its interpretation.
The rights and obligations of Article 26.10 E must be considered in the context of the
management rights clause, which gives the college the right to hire and to manage scheduling of
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assignments and work, subject to that right being “specifically modified elsewhere in this
Agreement.”
Article 6 provides as follows:
6.01 it is the exclusive function of the Colleges to:
(i) maintain order, discipline and efficiency;
(ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall
and suspend or otherwise discipline employees subject to the right to lodge a
grievance in the manner and to the extent provided in this Agreement;
(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
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. (emphasis added)
As the board in Sault College, supra, held “Article 6 is the provision which addresses the
assignment of work, and it reserves this task for the College, at its sole discretion.” (para. 22)
The board went on to note that Article 2 places some limits on the discretion . This clearly
indicates that the parties addressed the issue of assignment to different classifications , and when
they wished to modify a management right, they did so. This is the article which gives a
preference in hiring full-time professors over partial-load and sessional, but not part-time
employees, subject to operational needs. And there is no preference for partial-load employees
over those who are part-time.
Since the management rights clause contains an express test for limiting its application, the
language in Article 26.10 E must be specific to fetter that right. Both parties before me agreed
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that specific language included in the collective agreement could fetter managements right to
assign work. The dispute is whether the new language fetters those rights. The union is arguing
that the new language obliges the college to assign courses previ ously taught by a partial-load
professor, provided the conditions of the article are met, up to the maximum of 12 hours. The
article now provides a focus on the assignment of courses, rather than a contract. The college
argues that, while some improvements were made to service credits and how courses are
assigned to partial-load employees, there is no obligation to assign a maximum of 12 hours or to
assign extra courses after the obligation to assign a partial-load contract has been satisfied. One
major change in the article was the elimination of the requirement for a partial -load employee to
have taught all the courses in the new assignment.
A careful review of the language shows that there is nothing specific in the amendments to
Article 26.10 E to support the union’s position that the partial-load employee is entitled now to
be hired for any and all courses previously taught to a maximum of 12 hours . The first
paragraph provides that where the employer has decided that there is a need to hire a partial -load
professor for a course, previously taught by that employee, (and if the conditions listed in the
article are satisfied) ‘it will give priority in hiring to such partial-load employee.” (emphasis
added) The language at subsection (ii) is difficult to understand with the first paragraph and is
not as clear as it might be. But to create an obligation beyond assigning a partial-load contract,
which the first paragraph states, specific language is needed for what the union is arguing. The
language must be clear and unambiguous to provide that any course that an employee has taught
before must be assigned up to a maximum of a 12-hour contract.
I am persuaded that the amendments to Article 26.10 E do not change the college’s general right
under Article 6 to assign work to partial-load employees. There is no obligation to assign a
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maximum of 12 hours to a partial-load professor, or to assign extra courses after a partial -load
contract has been assigned over six hours but under 12.
The history of this article is important and supports this interpretation. When the article was
amended in 2012 the union also argued, in Fleming College, supra, that a partial-load professor
was entitled to be assigned a course that was given to a part-time employee, thus bringing her up
to a 12-hour contract. The language in the previous collective agreement provided as follows at
Article 26.10 D:
Subject to the application of Articles 2.02 and 27.06 A, where the college determines
that there is a need to hire a partial -load employee, it will give priority in hiring to
current partial-load employees whose contracts will expire prior to the start of the
assignment, and partial-load employees whose contracts had ended within six months
of the start of the assignment if the following conditions are met:
(i) the partial-load employee must have previously been employed as a partial -
load employee for at least eight months of the of service as defined in 26.10 C
within the last four academic years, and
(ii) the partial-load employee must have previously taught the courses that form
the new partial-load assignment.
The offer of partial-load employment is conditional on the college subsequently
determining there is sufficient enrolment to warrant the assignment being offered.
In considering the new amendments in 2012, the board emphasized the importance of the history
of the article:
Counsel for the college made an extensive submission on the college’s management
rights to hire, before the new language was added, for which the union took no issue.
This history is important. There was nothing in the previous language of the
collective agreement that required the college to hire any contract staff. It could
choose to hire part-time over partial-load. Significantly there was no obligation to
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assign a specific number of hours to a partial -load or to maximize hours for a partial-
load at 12. (para. 25)
The board in Fleming, decided that: “the new language does not alter management rights to hire
partial-load teachers. There is still no obligation to assign work to a maximum of twelve hours.
Further, without clear, specific language on such an obligation, we should not imply it.” (para.
27) The same logic applies to the recent amendments. Any change to management’s right to
assign work to partial-load employees under Article 6, must be clear and unambiguous. It cannot
be inferred.
Given this analysis, Article 26.10 E did not oblige the college to offer MICR 1583 to the grievor
instead of DV. Once the college assigned a partial-load contract to the grievor, there was no
obligation under Article 26.10 E to assign further courses to her to a maximum of 12 hours.
Thus, the obligation to hire the grievor was satisfied when she was offered and accepted a
partial-load assignment of nine hours.
Consequently, having carefully considered the submissions of the parties, the grievance is
dismissed.
Dated at Kingston, this 3rd day of March, 2020
Deborah Leighton
Deborah Leighton, Arbitrator