HomeMy WebLinkAboutUnion 20-09-21IN THE MATTER OF AN ARBITRATION
BETWEEN
NIAGARA COLLEGE OF APPLIED ARTS & TECHNOLOGY
(“College”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“Union”)
Re: Academic and Liberal Studies Staffing Grievance
SOLE ARBITRATOR: James Hayes
APPEARANCES
For the College
Timothy P. Liznick, Counsel
Robert Burwash, Director, Human Resources
Marie Villella, Labour Relations Specialist
For the Union
Alex Zamfir, Grievance Officer
Ravi Ramkissoonsingh
Terry Poirier
Greg Smith
A hearing by videoconference was held on September 11, 2020.
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AWARD
1. The College brings a preliminary motion that the Grievance be dismissed as
untimely.
2. The facts underlying the motion are disclosed in a documentary record that was
introduced without objection.
Facts
3. The Local 242 Grievance Form included the following “Statement of Grievance”:
The Union claims that the college has failed to give preference to the designation of 18
full-time equivalent professor positions rather than partial load or sessional in
Academic and Liberal Studies in violation of the collective agreement.
4. Together with declaratory and injunctive relief, the Union requested the payment of
union dues retroactive to January 2, 2019 and:
The immediate designation/creation and posting of 7 FTE professor positions in Access
Studies, 2 FTE in Sociology, 2 FTE in Psychology, 4 FTE in Math, 3 FTE in
Communication, to be distributed as negotiated by the parties.
5. The College hired partial load and sessional faculty, as opposed to full-time
professors, in advance of the term starting on January 7, 2019.
6. On January 30, 2019, the College sent the Union the ‘27.12 listings’ for the period
September-December 2018, including new and terminated full-time employees, and the
interim part-time January 2019 list.
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7. In its June 20, 2019 Grievance Response, the College asserted that the Grievance was
time barred. The objection was renewed in correspondence from College counsel dated
August 11, 2020, a month in advance of the scheduled arbitration hearing.
Collective Agreement
8. The parties made reference to the following provisions:
Article 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
programs, their economic viability, attainment of program objectives, the need for
special qualifications and the market acceptability of the programs to employers,
students, and the community.
Article 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. 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, their economic viability,
attainment of program objectives, the need for special qualifications, and enrolment
patterns and expectations.
Article 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.
Article 32.03 E
The arbitrator/arbitration board shall not be authorized to alter, modify or amend any
part of the terms of this Agreement nor to make any decision inconsistent therewith;
nor to deal with any matter that is not a proper matter for grievance under this
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Agreement. Section 44(16) of the Colleges Collective Bargaining Act, 2008 shall not
apply.
Article 32.09
The Union or Union Local shall have the right to file a grievance based on a difference
directly with the College arising out of the Agreement concerning the interpretation,
application, administration or alleged contravention of the Agreement. Such grievance
shall not include any matter upon which an employee would be personally entitled to
grieve and the regular Grievance Procedure for personal or group grievances shall not
be by-passed except where the Union establishes that the employee has not grieved an
unreasonable standard that is patently in violation of this Agreement and that
adversely affects the rights of employees.
Such grievance shall be submitted in writing by the Union Grievance Officer at Head
Office of a Union Local President to the Director of Human Resources or as designated
by the College within 40 days from the occurrence or origination of the
circumstances giving rise to the grievance commencing at the Grievance Meeting
stage of the Grievance Procedure detailed in 32.02.
Article 32.11 A
“Day” means a calendar day.
Colleges Collective Bargaining Act (“CCBA”)
Subsection 14(16)
Except where a collective agreement states that this subsection does not apply,
an arbitrator or arbitration board may extend the time for the taking of any step
in the grievance procedure under a collective agreement, despite the expiration
of the time, where the arbitrator or arbitration board is satisfied that there are
reasonable grounds for the extension and that no party will be substantially prejudiced
by the extension.
[Bold added]
College Submission
9. Counsel says that the College would not, typically, have raised this objection as the
Union could simply have filed a similar grievance within a few months -- when the next
designation of faculty assignments was made. However, COVID19 has overturned all
previous enrollment projections. Anyone hired by virtue of the events at issue would have
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been laid off by now with no prospect of recall any time soon. The Grievance, from a
practical point of view, is effectively moot.
10. On the merits of the objection, the College emphasizes that time limits under the
Collective Agreement are mandatory and that the parties have excluded the possibility of
an exercise of arbitral discretion pursuant to Subsection 14(16) of the CCBA.
11. The College submits that, in order to be timely, a grievance filed on March 29, 2019,
as this one was, required an allegation of a contract violation that had occurred within 40
days prior to that date. Counsel argues that the Grievance fails to do so. On the Union’s
best case, the necessary factual “trigger” for the Grievance would have occurred on January
30, 2019 when the College provided the ’27.12’ list. The College also suggests an
alternative trigger date of January 7, 2019, or earlier, when the challenged faculty either
commenced work or were actually hired.
12. Anticipating the Union position, the College denies that the Grievance is a
“continuing grievance”, within the meaning of the arbitral jurisprudence. The Statement of
Grievance mirrors the language of Articles 2.02 and 2.3 A which requires “designation of
full-time positions”. That designation was a one-time event. The Union was informed of
this action by e-mail sent on January 30, 2019 pursuant to Article 27.12. Article 27.12
requires notification three times every year of all hirings of personnel assigned to teach
credit courses, including sessional appointments. Looked at another way, as every person
in Academic and Liberal Studies commenced work on January 7th, it could be said that such
designations must have occurred at some point prior to that date. The Grievance should be
dismissed as untimely no matter which of these dates is considered.
13. Referring to caselaw, the College submits that the Grievance is not a continuing
grievance because it relates to a discrete decision made outside of the 40-day period. The
College addressed the following awards: Confederation College, June 26, 2017 (Stephens);
Seneca College, March 22, 2018 (Jesin); George Brown College, August 4, 2015 (Cummings);
Loyalist College, October 25, 1999 (Schiff); Fanshawe College, November 26, 1991 (Swan);
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Timmins Board of Education, November 14, 1997 (Keller); Dominion Glass, (1973), 1 L.A.C.
(2d) 151 (Reville); Dominion Glass Co. Ltd. (1973), 40 D.L.R. (3d) 496 (C.A.)
Union Submission
14. The Union describes the Grievance as a “continuing grievance”. The text of the
Article 2.02 and 2.03 A obligation to “give preference” is not restricted to a particular
occasion. Stated otherwise, there is no reference to a “triggering event”. The “preference”
obligation requires ongoing assessment; it is not a one-time exercise.
15. The Union says that Article 27.12 operates to provide necessary data by certain
dates, not more. The 27.12 lists provide the Union with the necessary information to
permit review of the College’s actions for conformity with Articles 2.02 and 2.03 A. The
Article does not circumscribe or terminate the College’s ongoing obligation to provide
“preference”. Article 27.12 feeds the ability of the Union to evaluate College action under
Article 2.02 and 2.03 A but the provisions have separate purposes.
16. In short, the Union submits that, in this case, the ongoing Article 2.02 and 2.03 A
obligation gave rise to daily breach when the College continued to fail to give preference to
the designation of full-time positions. Daily breach constitutes a paradigm of a “continuing
grievance” rendering the Grievance timely.
17. The Union relies upon a number of prior awards in the sector that it says fully
support its position: George Brown College, December 22, 2002 (Shime); Hotel Dieu of
Kingston, 1992 CarswellOnt 1251 (Stewart); Sheridan College, November 6, 1996 (Schiff);
George Brown College, 1998 CarswellOnt 7508 (H.D. Brown); Seneca College, October 29,
1998 (MacDowell); George Brown College, 1999 CarswellOnt 7427 (Thorne). The Union
refers to Fanshaw College, March 10, 1993 (Swan) in support of its concluding submission
that, as a matter of good collective bargaining policy, arbitrators should follow earlier
awards unless they are satisfied that they are “manifestly wrong”.
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College Reply
18. The College responds that the Union’s interpretation of Article 2.02 and 2.03 A reads
out the word “designation”. The Collective Agreement does not require daily review of
whether or not a full-time appointment is required. The only dispute raised in the
Grievance is whether or not the College gave the requisite preference when it made the
designations. The fact that there may have been consequential damages does not convert
the original designation into a recurring breach. The College does not designate on a daily
basis; it does so once.
Discussion
19. The Union concedes that time limits are mandatory under the Collective Agreement
and that ss.14(16) of the CCBA precludes the exercise of arbitral discretion where a breach
has been established. The sole issue raised here is whether or not the Grievance
constitutes a “continuing grievance” as understood in the jurisprudence. A finding of
“continuing grievance” in this case will defeat the College’s preliminary objection.
20. This dispute does not call for any general review of the relevant principles. Suffice it
to say that the ground has been well travelled since the Dominion Glass decisions several
decades ago.1 Arbitrator Burkett’s decision in Re Port Colborne General Hospital, (1986), 23
L.A.C. (3d) 323 at para. 18 is frequently cited. This is not to say that arbitrators have often
struggled to apply accepted principles to particular fact patterns.
21. It appears that the incisive submission made by College counsel, focussed on the
word “designation” in Articles 2.02 and 2.03 A, has not been made previously. The
1 At para.8 of the Reville arbitration award: “The grievance to be a continuing one, must involve repetitive
breaches of the collective agreement and not be simply a single and isolated breach of the collective
agreement. The damage complained of must be of a recurring kind and nature. Continuing grievances are
usually (though not always) repeated violations of the collective agreement, involving the non-payment of
money or benefits to individual employees or to the union, or conversely, the inflicting of damage on a
recurring basis on the company by employees and the union withholding their services illegally.”
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submission is certainly arguable particularly when read in the context of the Article 27.12
notification requirement. The suggestion that the parties should engage with differences
concerning the College’s Article 2.02 and 2.03 A obligations in a prompt fashion appears
reasonable. No doubt that is what normally happens. College counsel explained why no
resort is typically made to timeliness objections; that also makes sense.
22. The principal difficulty with the College position is that at least three arbitrators
have previously concluded that grievances alleging breach of Article 2.02 and 2.03A
constitute “continuing grievances”. And, while in one or two cases the analysis may be
described as somewhat conclusory, the outcomes in the College sector have been
consistent. See: Sheridan College (Schiff) at p.4; George Brown College (Thorne) at paras.21-
22. In George Brown College (H.D.Brown) it was said:
As a continuing issue existed when the Union’s grievance was filed, we would find that
there was compliance with Article 32.10 as there is an alleged violation of the
agreement each day which could be the subject of a grievance at any time and which
would satisfy an objection to the timeliness of the grievance. That situation would cure
any defect in delay in the filing of this grievance. 2
23. Seneca College concerned an allegation that the College had improperly excluded
persons from the bargaining unit in breach of the Article 1 recognition clause. The award
did not involve Article 2.02 and 2.03A. However, the analysis provided by the arbitrator is
apposite.
24. Arbitrator MacDowell rejected the submission that “time runs” from when the lab
monitors at issue were hired explaining that: “Under this collective agreement, time runs
from the circumstances giving rise to the grievance – which is to say, from the time that lab
monitors began performing functions of such kind or volume that would bring them within
the scope of the agreement.”3 I agree and the College suggestion, in this case, that timelines
might commence prior to January 7, 2019 is rejected.
2 At para.15
3 At ppl 17-18
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25. For present purposes, most importantly, the arbitrator did not accept that such a
grievance could be conclusively time barred at the outset. He explained that the grievance
before him pertained to “continuing and multiple breaches of all aspects of the agreement,
as it might be applied to the individuals in question from time to time throughout their
employment”; he then identified those aspects.
4 (emphasis in the original). Arbitrator
MacDowell went on to distinguish grievances that involved a single act possessing
substantial finality such as discharge or promotion.5
26. As stated earlier, previous arbitrators have had no apparent difficulty in concluding
that allegations of more general Article 2.02 and 2.03A breach constitute “continuing
grievances”. In my opinion the rationale offered in Seneca College resonates with the Union
submission advanced here and underlies the other precedents relied upon by the Union.
This is not to say that the ‘late’ filing of a continuing grievance may not have significant
remedial implications. On the other hand, each of the authorities referred to by the College
concerned a complaint about of a specific action affecting a specific grievor. On this ground
alone, they are all distinguishable from the Grievance at issue.
27. Against this backdrop, I have not been persuaded that the word “designation” is
sufficient to bear the weight of the College submission made here. The Union’s position --
that Article 27.12 settles no timeline trigger but, instead, serves to provide the Union with
the necessary information to assess the College’s exercise (or non-exercise) of the required
Article 2.02 and 2.03A preference -- is persuasive. As was stated in Seneca College:
These various notice provisions underline the obvious problem that the trade union
will have keeping track of personnel changes in a large work force distributed
throughout a number of classifications and academic departments. However, reading
the time limits in the grievance procedure in the manner suggested by the College
would rob these notice provisions of much of their meaning. And for that reason alone,
it is not an interpretation which, we think, we should readily embrace unless the
language of the collective agreement compels it.6
4 At p.19
5 Quoting directly from Re Toronto Parking Authority, (1974), 5 L.A.C. (2d) 150 (Adell).
6 At pp.16-17
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28. In any event, Arbitrator Swan’s admonition that “as a matter of good collective
bargaining policy” one should not change an “interpretation between the parties unless we
are satisfied that the earlier awards were manifestly wrong”7 is good advice.
Order
29. The preliminary motion is dismissed.
Dated at Bracebridge, this 21st day of September, 2020.
James Hayes
7 Fanshawe College, supra., at p.8