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HomeMy WebLinkAboutUnion 09-07-08 IN THE MATTER OF AN ARBITRATION BETWEEN SENECA COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION UNION GRIEVANCE (OPSEU FILE #2008-0560-0002) BOARD OF ARBITRATION: JANE H. DEVLIN JOHN PODMORE CHAIR COLLEGE NOMINEE SHERRIL MURRAY UNION NOMINEE TIMOTHY P. L1ZNICK, FOR THE COLLEGE: ROBIN GORDON, FOR THE UNION: OPSEU FILE NO.: HEARING DATES: 2008-0560-0002 MARCH 12,2009 JUNE 16, 2009 1 This matter involves a Union grievance dated October 1, 2008 in which it is alleged that the College violated Article 27.12 of the collective agreement by failing to provide the Union with the personnel lists referred to in that Article by September 30th. Article 27.12 provides as follows: 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 to 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. Kavita Chhiba, Director, Human Resources Services for the College, provided the personnel lists to the Union on October 2, 2008. It was the submission of Ms. Gordon, on behalf of the Union, that in replying to the grievance, Ms. Chhiba admitted that the College had violated the collective agreement and the College is bound by that admission. Ms. Gordon further submitted that Article 27.12 requires the College to provide the personnel lists to the Union "during the last week of September" and that this phrase ought to be given its ordinary meaning. On this basis, it was contended that the phrase refers to the week ending September 30th, Ms. Gordon advised that the timely delivery of the personnel lists is important because the Union uses the lists to monitor staffing issues under Article 2 of the collective agreement. In the result, as the personnel lists were not 2 provided to the Union by September 30, 2008, Ms. Gordon asked the Board to find that the College violated the collective agreement and issue a declaration to that effect. It was the submission of Mr. Liznick, on behalf of the College, that following the filing of the grievance, settlement discussions took place between Ms. Chhiba and Larry Olivo, the 15t Vice President of the Local, and that evidence of those discussions is inadmissible and should not be considered by the Board of Arbitration. In any event, Mr. Liznick contended that statements made by Ms. Chhiba cannot govern the interpretation of Article 27.12 of the collective agreement. With regard to the language of that Article, Mr. Liznick submitted that the phrase "during the last week of September, January and May" can be contrasted with the language of other Articles of the agreement in which reference is made to specific dates. Mr. Liznick further submitted that the timing of the delivery of the personnel lists referred to in Article 27.12 is not critical as the Union may request a meeting under Article 7 and if the discussions do not prove fruitful, it may file a grievance under Article 2, for which there is no time limit. Mr. Liznick contended, as well, that a "week" is a period of seven days which is normally reckoned from Sunday to Saturday and that the month in which a week begins determines the month in which the week falls. Accordingly, it was submitted that in 2008, the last week in September began on Sunday, September 28th and ended on Saturday, October 4th, As the personnel lists were provided to the Union on October 2nd, Mr. Liznick contended that they were provided within the time period specified in Article 27.12 of the collective agreement. In the alternative, Mr. Liznick submitted that 3 the Board of Arbitration should decline to decide the matter as the grievance involves a trifling issue to which the principle of de minimis non cural lex applies. By way of reply, Ms. Gordon submitted that Article 27.12 refers to a period of time, being the last week of September, January and May, rather than to a specific date as is the case with the other Articles referred to by Mr. Liznick. Ms. Gordon further submitted that while a week may usually or normally be reckoned from Sunday to Saturday, that is not invariably the case and in one dictionary, a "week" is defined as a period of seven days reckoned from any point. Ms. Gordon also contended that the term "week' must be considered in the context of Article 27.12 and that the phrase "during the last week of September" refers to a period within the month of September which is after all other weeks and immediately before the month of October. Ms. Gordon submitted, as well, that there is no reason that the Union cannot rely on statements made by Ms. Chhiba fOllowing the filing of the grievance. Moreover, Ms. Gordon contended that while the principle of de minimis non cural lex might preclude the imposition of a severe penalty in the event of a slight deviation, in this case, the Union is only seeking a declaration that the collective agreement was violated. It was also contended that this is not the first time there has been an issue between the parties regarding Article 27.12 and that there is clearly a dispute with respect to the language of that Article. Decision 4 Article 27.12 of the collective agreement provides that 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. The Article also provides that at such times, the College shall include notification of all hirings of personnel assigned to teach credit courses including, in particular, sessional appointments. The dispute in this case concerns the time period within which the College must provide the Union with the personnel lists referred to in Article 27.12 and centres on the meaning to be given to the phrase "during the last week of September, January and May". As noted by the College, this language can be contrasted with other provisions of the agreement in which the parties have referred to specific dates. By way of example, Article 8.05A provides, among other matters, that the Union Local President shall advise the College President by June 1 of each year of the employee(s) to have reduced teaching or work assignments pursuant to the provisions of Article 8.04. Although the College submitted that if the parties had intended to require personnel lists to be provided to the Union by September 30th, they would have said so expressly, in Article 27.12, the parties chose to refer to a period of time within which such lists are to be provided, That period is the last week of September, January and May. 5 The College referred to dictionary definitions of the terms "during", "last" and "week" and, as noted by the College, the term "during" is generally defined as "throughout the duration of' or "in the course of' while the term "last" is defined as "after all others" or "coming at or belonging to the end". The College also referred to definitions of the term "week" as a period of seven consecutive days usually reckoned from Sunday to Saturday and relied on two awards in which similar definitions were considered: see Re Inn of the Woods and United Food & Commercial Workersl Local 175 (1989),7 L.A.C.(4th) 31 (Aggarwal) and Re Bingham Memorial Hospilal and Canadian Union of Public Employeesl Local 2558 (1991),20 L.A.C.(4th) 434 (Marcotte). However, as noted by the Union, the Concise Oxford Dictionary also defines a "week" as a period of seven days reckoned from any point. Moreover, in interpreting Article 27.12 of the collective agreement, the term "week" must be considered in context. That Article specifies that personnel lists are to be provided to the Union llduring the last week of September, January and May". Giving this phrase its ordinary meaning, we find that it refers to the final week in September, January and May and, in our view, this phrase cannot be construed as including any period in the following months, being the months of October, February and June. Accordingly, while a week may often be reckoned from Sunday to Saturday, by specifying that personnel lists to be provided to the Union "during the last week of September, January and May", we find that Article 27.12 refers to the seven day period concluding with the last day of each of those months. In the result, we cannot accept the submission of the College that for purposes of Article 27.12, the last week of 6 September, 2008 began on Sunday, September 28th and concluded on Saturday, October 4th. As to the College's submission that the grievance involves a trifling matter to which the principle of de minimis non Gural lex applies, it is apparent that there is a dispute between the parties regarding the interpretation of Article 27.12 of the collective agreement. The Union is seeking a declaration that the College violated the agreement and we see no basis for denying that request. Accordingly, as the College failed to provide the Union with the personnel lists by September 30, 2008, we find that the College violated Article 27.12 of the collective agreement. We note, however, that the lists were provided to the Union on the morning of October 2nd and, in these circumstances, the violation must be regarded as a minor one. In view of the conclusion we have reached regarding the interpretation of Article 27.12, it is unnecessary to deal with the Union's submission that Ms. Chhiba admitted that the collective agreement had been violated. 0' ttr..'. DATED AT TORONTO, this ~ day of July, 2009. 11u;2 H~ Chair See Dissent Attached College Nominee "Sherril Murray" Union Nominee DISSENT With respect I cannot join with the majority regarding this Award based on two issues, Firstly, it is my opinion that this grievance is one that did indeed warrant the application of de minimis non curat lex. Given the circumstances it may have been considered a trifle, one that should not have commanded the attention of the Board. The second reason relates to the interpretation of article 27.12 "During the last week of September". The majority accepted the Concise Oxford Dictionary definition as proposed by the Union. I would have accepted the College's interpretation, as described in the Award, as a "period of seven consecutive days usually reckoned from Sunday to Saturday". I would have dismissed this grievance. John Podmore July 7, 2009 College Nominee