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HomeMy WebLinkAboutUnion 22-12-06IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 514 (the “Union”) AND YORK REGION DISTRICT SCHOOL BOARD (the “Board”) AND IN THE MATTER OF A GRIEVANCE CONCERNING BARGAINING UNIT WORK AND WHETHER INSTRUCTORS FOR CERTAIN COURSES ARE INCLUDED IN THE BARGAINING UNIT ARBITRATOR ROBERT J. HERMAN APPEARANCES FOR THE UNION ANDREW MINDSZENTHY JESSE GUTMAN SUSAN RICHARZ FOR THE EMPLOYER ANDREW ZABROVSKY DIANE HARBIN JESSICA HERFST AVLEEN BANWAIT SUSIE NUNES SABRINA MAKARENKO JENNIE SOARES JENNIFER SALCEDO HEARINGS WERE HELD IN MARKHAM ON JUNE 25, 2018, MAY 2, 2019, JANUARY 29, MARCH 6, 2020, FEBRUARY 15, MARCH 31, APRIL 9, MAY 26, OCTOBER 28 AND 29, 2021, FEBRUARY 2, 4, APRIL 4, 19, OCTOBER 11 AND NOVEMBER 1, 2022 AWARD 1. This is a Union Policy grievance filed by OPSEU, Local 514 (the “Union”), asserting that the Employer, the York Region District School Board (the “Board”), failed to acknowledge that when instructors teach certain courses they are in the bargaining unit. The Union maintains that the courses in question are “Adult non- credit ESL courses” and are thereby covered by the recognition or scope clause of the Collective Agreement (for ease of refence referred to as the “scope” clause). The Board responds that the scope clause of the Collective Agreement does not apply when the instructors teach the types of courses in issue. Alternatively, even if the scope clause is found to encompass instructors when they teach the disputed courses, the Board asserts that the Union is estopped from asserting any claim to them. 2. Article 1.05 of the Collective Agreement reads: The bargaining unit of OPSEU Local 514 is defined exclusively as all instructors employed by the employer in the Language Instruction for Newcomers to Canada (LINC), the Adult non-credit English as Second Language (ESL) and the Citizenship Instruction programs, save and except supervisors, persons above the rank of supervisor, and persons covered by subsisting collective agreements in the Regional Municipality of York. (emphasis added) 3. For the most part the facts are not in dispute, although memories have faded about certain matters, not surprisingly given that certain events occurred a number of 2 years ago. I found all witnesses to be credible, in the sense that I am satisfied they honestly testified to matters of which they had knowledge. 4. The evidence about the content and teaching of a variety of courses was largely consistent among all witnesses. Where the witnesses differed was in their characterization of the courses in dispute, and whether they were properly considered to be “Adult non-credit ESL” courses, within the meaning of this phrase in the Collective Agreement. They also had different recollections about what occurred during several rounds of bargaining. 5. The facts that follow are based upon the witnesses’ testimony, when considered along with other relevant factors, including the non-disputed objective facts, such as the course descriptions, government or organizational descriptions and requirements, funding requirements and sources, the notes taken contemporaneously with events, and what is most likely in the circumstances. The Facts 6. There was a dispute over the admissibility of extrinsic evidence of what occurred during bargaining. For reasons provided orally at the time, I ruled that evidence of bargaining events was relevant and admissible. I was satisfied it was admissible both for interpretive purposes, as I found the relevant language of the Collective Agreement to be ambiguous, and in any event, for purposes of the estoppel issue. 3 7. The bargaining unit was certified in 2010 by the Ontario Labour Relations Board (“OLRB”), as: All English as a Second Language (ESL) instructors and Language Instruction for Newcomers to Canada (LINC) employed by the York Region District School Board in the Adult Continuing Education Services Program . . . (emphasis added) 8. ESL courses are designed to teach English language skills to newcomers to Canada for whom English is not a first language, to help them function within Canada and integrate into Canadian life. 9. The ESL courses or programs that the parties agree are covered by the scope clause are courses that were taught for many years before the Union was certified to represent the instructors. These courses teach ESL students the four basic ESL skills or competencies: speaking, listening, reading and writing. Instructors teach these skills to help students meet standards called Canadian Language Benchmarks (“CLB’s”), standards set by Citizenship and Immigration Canada to measure the levels of language abilities in ESL students in the four competencies. Except when there are shortages of qualified instructors, which is not in issue here, in order to teach these Adult non-credit ESL courses to ESL students, instructors have to be accredited as Teachers of English as a Second Language Ontario (“TESL Ontario” accreditation). 10. These courses are collectively called courses in “Everyday English”, and they cover a large number of topics at the various CLB levels, ranging from CLB 1 to CLB 10. In many of these courses, students are taught some or all of the four skills 4 or competencies through focusing on specific tasks or interests, such as going shopping, going to see the doctor, carrying on a social conversation, and so on. Particular topics discussed or utilized during the semester are chosen from suggestions made by the students at the start of the semester. 11. Also being taught at time of certification was at least one course that focused on one topic or area for the entirety of the course, Pronunciation, and perhaps as well Conversation. Courses in these two areas are asserted by the Board to be excluded from coverage under the Collective Agreement because of their specialized or focused nature. 12. In bargaining in December 2011 for the first Collective Agreement, the Union proposed that the phrase “Adult Citizenship and Language Training (ESL) programs” (ACLT”) be expressly included in the scope clause. The Board did not agree to this change, as it believed that the certificate issued by the OLRB had not included instructors teaching those programs or courses. The Union’s witnesses had a different view, as they testified that during bargaining the Board told it that ACLT programs were already encompassed in the existing description of the bargaining unit. Because of this, the Union witnesses testified, it understood that both parties agreed that ACLT programs were already included, and that it was not therefore necessary to expressly include a reference to ACLT programs in the scope clause. The Union accordingly did not pursue its requested change in language. 13. However, the Union could not identify who might have made any such representation during bargaining and the Board witness who attested to what had 5 occurred had no recollection of the Board having made any such assertion. In the result, I do not find that the Board made any such representation during bargaining. 14. At the same time, there is no evidence that indicates there was any discussion about why the Union proposal was withdrawn, nor an y evidence about any discussion where the Board indicated that ACLT instructors were excluded from the bargaining unit, or that the Union understood or agreed that they were already excluded or would be excluded absent the requested amendment. I am satisfied that the Union came to believe during bargaining that the amendment it had proposed was unnecessary, as the instructors in question were already encompassed in the bargaining unit through the existing language of the scope clause, and that the Board believed the opposite. 15. Ultimately, the parties agreed to the following scope clause, which closely reflected the bargaining unit description in the certificate issued by the OLRB: all instructors employed by the employer in the Language Instructors for Newcomers to Canada (LINC) and the Adult non-credit ESL (ESL) programs, save and except supervisors, persons above the rank of supervisor, and persons covered by subsisting collective agreements in the Regional Municipality of York. (emphasis added) 16. After the new Collective Agreement was ratified, and consistent with its understanding, the Board did not treat instructors teaching ACLT courses as covered by the Collective Agreement when they were teaching these courses. Consistent with the Union’s understanding, the Union filed a grievance over this practice. The grievance asserted that the Board had “informed the Local that the Citizenship and 6 Language Training Class was no longer included under the umbrella of duties of ESL/LINC instructors and is not included in the collective agreement which is in direct contravention to past practice and discussions/agreement arrived at during the bargaining process.” 17. The Board denied the grievance on the basis that the teaching of these courses was not covered by the Collective Agreement. The grievance was not referred to arbitration but was deferred until after the next round of bargaining. 18. Adult ESL programs are part of Community and Adult Education Services at the Board. Around 2013, the new head of this division, Susie Nunes, began to create and offer a number of non-credit courses to Adult ESL students that had not previously been offered, with specific topics as their focus. Over a number of years, she created, for example, new or revised courses in Conversation, at CLB Levels 1 to 10, and Pronunciation, at CLB Levels 2 to 8, and new courses in subjects such as Reading and Writing Through Novel Studies, at CLB Levels 6 to 10, and Workplace Preparation, at CLB Levels 5 to 8. 19. These new or specialized courses are the courses in dispute. It is not clear which of these courses were actually offered to students, since whether they were offered depended on a number factors, such as interest and enrollment by ESL students. All the disputed courses are in the document the Board issues that sets out Course Descriptions. 20. When these new courses were set up, bargaining unit ESL instructors were also assigned to teach them, as well as the Everyday English ESL courses they had 7 been teaching for some time, and the Board applied the Collective Agreement to the instructors when they taught both types of courses. Thus, job postings were the same for instructors regardless of which courses they were assigned to teach, describing the duties as teaching ESL (or LINC/Citizenship Instruction), union dues were deducted and Collective Agreement terms and benefits were applied. There would have been no need for the Union to file a grievance complaining that instructors of new courses were not being treated as covered by the Collective Agreement, since they were. 21. In the Fall of 2013, the parties were bargaining over a renewal Collective Agreement to cover the period from September 1, 2014 to August 31, 2017. The Union wanted to ensure that all the classes it considered to be Adult non-credit ESL courses were clearly and expressly covered by the Collective Agreement, given the existing grievance over the teaching of ACLT classes that had been deferred until after bargaining. It also wanted to ensure that any new ESL courses that might in the future be taught to Adult non-credit ESL students, or that any courses which might be given a new title, would continue to be encompassed by the Collective Agreement. As well, the Union wanted to expand the bargaining unit to include assessors and resource personnel in support of the ESL programs. The Union therefore proposed an amendment to Article 1.05, so it would read: All persons employed by the Employer in the Regional Municipality of York in the Language instruction for Newcomers to Canada (LINC), Citizenship Class Instructors, and the Adult non-credit English as a Second Language (ESL) programs, and persons employed as instructors, assessors and resource support of Adult Continuing Education Services Programs within and/or related to LINC, ESL and Citizenship Instruction, save and except . . . . 8 The bolded words represented proposed changes to the existing language. 22. The Union explained to the Board that the new language would not expand the Collective Agreement insofar as instructors were concerned, but would ensure that instructors remained part of the bargaining unit if the government or the Board changed the names of the courses. The Union provided the Board with a list of courses they wanted to expressly identify, courses like Conversation. The Board advised the Union that it was unnecessary to list them all, as they were all ESL courses that were covered. The Board also indicated that it felt the proposed amendment would bring into the bargaining unit additional work or new job titles. The Union indicated that this was correct, that the proposed new scope clause would cover newly titled courses where the government changed the program or course titles. With respect to Citizenship Instruction programs, the Board advised that union dues had been deducted in error for instruction of the Citizenship Instruction programs. There is no evidence that the Board advised the Union that union dues were also being deducted in error for the disputed courses that Ms. Nunes had been introducing. 23. The Board was not prepared to agree to the Union’s proposed language for Article 1.05 but did agree to expressly include Citizenship Instruction, and the Article was amended accordingly, to include a new reference to expressly include “Citizenship Instruction programs”. The parties agreed that this resolved the outstanding ACLT grievance. 9 24. After this new Collective Agreement was ratified, the Board continued to treat instructors teaching the disputed courses as covered by the Collective Agreement when they taught those courses, as well as when they taught the undisputed Everyday English Adult non-credit ESL courses. This continued thereafter for about two more years. 25. Ms. Nunes testified that the decision to treat the disputed courses as covered by the Collective Agreement was a mistake and was made in error, and that she and the Board’s Human Resources did not initially understand that the new courses were different than the Everyday English courses. There is no other evidence about why instructors teaching the new courses were treated as if covered by the Collective Agreement for so many years, and under successive Collective Agreements, no evidence as to how or why this “error” was made, whether from Ms. Nunes or Human Resources, or how or why it was made over such a lengthy period, or how the Board came to understand that it was mistakenly treating instructors as in the bargaining unit when they taught the disputed courses. 26. Bargaining in the following round appears to have commenced sometime in 2014 or 2015. At the bargaining session on December 7, 2015, the Union was served with an estoppel notice by the Board. Although the actual notice is not in evidence, it appears that the Board advised the Union that a number of courses, such as Reading and Writing Through Novel Study and Business English, were not instructor positions or courses that were encompassed within the bargaining unit, even though assignments to teach those courses had been posted as Union positions up until that 10 time. The Board further advised that it would continue to treat the teaching of the disputed courses according to the provisions of the Collective Agreement until the next Collective Agreement was ratified, after which it would treat the courses as not covered by the Collective Agreement, and that its practice in doing so was without prejudice to its position. 27. The relevant language of the scope clause was not changed during this round. 28. The instant grievance was filed on April 21, 2016. As per the estoppel notice, the Board continued to treat instructors teaching any of the disputed courses as covered by the Collective Agreement, without prejudice to its position that they were excluded, and indicated it would do so until the resolution of the instant dispute. 29. As noted, when instructors teach Everyday English courses, it is agreed that they are covered by the Collective Agreement. These courses are offered beginning at the basic CLB Level 1, and once students are proficient at lower levels, they can take courses with higher CLB levels, up to the highest Level 10. All of these courses are designed to teach the four fundamental competencies to Adult ESL students on a non-credit basis, and do so by focusing on a variety of topics or settings. For example, in the CLB 1 Everyday English course, students are taught speaking, listening, reading and writing through addressing tasks such as answering questions, short conversations, group and role play, vocabulary building, pronunciation, reading skills, writing an invitation, maps and schedules, and so on. Students are taught the same four competencies in higher level CLB courses, but at more advanced levels, and often through different topics, exercises, or focus, such as social situations, the 11 news, phone competencies, employment, relationships, and health care. In the Everyday English CLB 6-7 course, for example, topics include casual conversation, workplace situations, health and safety, medical and community services, trip planning, Canadian law, education and environmentalism. Numerous topics are also utilized in many of the Language Instruction for Newcomers to Canada (LINC) courses offered to ESL students, courses also identified as covered in the Collective Agreement scope clause. 30. With respect to the disputed courses, they are set out and described in the Course Descriptions issued by the Board. What follows is a representative sample, taken from the Board’s Course Descriptions or from Course outlines published by the Board. 31. Conversation courses currently are offered from CLB Levels 1-2 to 6-10. These courses focus on assisting students to learn how to better converse, and are designed to teach only two of the four competencies, listening and speaking. The focus on different conversational settings reflects more advanced contexts as these courses are offered at higher CLB level courses. For example, Conversation courses may teach conversations skills while focusing on social conversation, emergency situations, family health care, leisure activities, role playing, and using computer- assisted programs. 32. Pronunciation courses were also offered before certification, and currently are offered from CLB Levels 2-3 to 5-8. They focus on assisting students in improving their listening and speaking skills, in order to be able to better pronounce words and 12 to be more confident in carrying on conversations. Topics used include speaking to a child’s teacher, interviewing for a job, and speaking to a professional. 33. Speaking and Pronunciation courses are offered at the CLB 3-5 Level. Students learn how to speak better through practicing in real life situations, such as small talk, role playing, casual and formal conversations, phone calls, and presentations. Separate Reading and Writing courses are offered at CLB Levels 4-8, to teach students how better to read and write, through topics that include literature, media, health, jobs and occupations, and financial and consumer services. 34. Reading and Writing Through Novel Studies and Advanced Reading and Writing Through Novel Studies are courses are offered for CLB Levels 6-10. The focus during classes is the discussion of novels. The materials used in these courses are editions of novels specifically edited for and tailored to ESL students. The goal of these courses is for students to improve in the four competencies, it is not primarily for students to learn to analyze actual novels, their depth, plot, character development, specific themes, or applicability to our lives. Reflective of this, the course description for the Advanced Reading and Writing class includes the statement “While enjoyin g classic and contemporary best-sellers, you will improve your reading comprehension and develop effective writing skills and strategies for everyday life, employment and academic study.” 35. Advanced Listening & Speaking for Communication is a CLB 6-10 course designed to improve a student’s listening and speaking skills in real life, including work and academic situations. 13 36. Workplace Preparation courses are offered at CLB Levels 5-8. The course descriptions indicate that they use the four skills to focus on the real world of Business and Workplace Preparation, working on tasks such as writing resumes and covering letters, interview skills, and becoming acquainted with computer programs used in the workplace, such as Excel or email. 37. The Entrepreneurial World of Business courses, CLB Levels 6-10, teach the four competencies through focusing on the real world of business, learning business strategies, how to manage people, developing a team environment, and so on. 38. Professional Business English, CLB Levels 6-9, uses the four skills to focus on the real world of Canadian Business and Workplace Preparation, including learning how to write resumes and covering letters, and becoming acquainted with business related software programs. 39. Finally, a course is offered in International English Language Testing System (“IELTS”). IELTS is a British system that uses a British created system for evaluating competency levels in the four skills, although teaching is still aligned to or related to the CLB’s in the four competencies, and students are evaluated in CLB levels. This was not a course created by Ms. Nunes, as it was already being offered elsewhere, but she introduced it at the Board. In order to teach this course, instructors must be TESL Ontario accredited and it is preferred, but not required, that they have also acquired a specialized IELTS accreditation. The course is designed to prepare students to write international standardized tests of English for non-native English language speakers, passage of which is a prerequisite for college or university 14 admission. Students are taught how to achieve higher scores in the four competencies and effective test-taking skills, and as part of the course, they take practice tests and quizzes. The goal of the course is not to increase a student’s proficiency in the four competencies per se but to teach them how to succeed in taking the IELTS tests. Students taking this course typically take it only until they feel adequately prepared to write the exam or until they have passed the exam. The exam is given by another organization and not the Board. 40. Both Everyday English courses and the specialized courses in dispute are promoted by the Board collectively as part of its ESL programs. Both types of courses are taught at various CLB levels, and offered to Adult ESL students on a non- credit basis. To enroll in any of the courses, one must be an ESL student, and have been assessed at the CLB level required for the particular course. Job postings are the same for both types of classes, identifying both Everyday English and the disputed courses as part of the ESL program. The qualification for teaching any of the courses is the same, accreditation by TESL Ontario. The Board does not inquire of instructors assigned to teach a disputed course whether they have expertise in the specialized area of that course, such as business experience or experience with analyzing English novels. The same instructors are assigned, depending on availability, to teach both Everyday English and the specialized courses. They are given no instruction or guidance directing or suggesting that they teach the disputed courses any differently than they do the Everyday English courses. They teach both types of courses in order to improve an ESL student’s skills in one or more of the four competencies, depending on the nature of the course. Instructors use the same types 15 of student evaluations for both, assessing the students only in the four competencies to determine appropriate CLB levels. Students are not also evaluated in the subject matter of the specialized courses distinct from the four competencies. For example, they are not assessed on their analytic skills in analyzing a novel, or their understanding of good business practice, except insofar as their skill level in the four competencies is concerned. Funding for the Everyday English courses and the disputed courses comes from the same sources, generally the provincial government. Submissions 41. On agreement, the Board proceeded first both in leading its evidence and in making final submissions. 42. The Board asserts that Ms. Nunes is not a labour relations expert, and that she mistakenly believed that instructors teaching the disputed courses were covered by the Collective Agreement when they taught those courses. Because of this mistaken belief, the Board submits, instructors teaching these courses were in error treated for a number of years as covered by the Collective Agreement. 43. The Board notes that the scope clause does not delineate bargaining rights for all instructors but only for those instructing in the LINC, Adult non-credit ESL, and Citizenship Instruction programs, and that their inclusion or exclusion from the bargaining unit therefore depends on what courses they are teaching. The Adult non- credit ESL programs, asserts the Board, are primarily concerned with teaching language skills and focus on the four competencies, and not on specialized subject matters. In contrast, it submits, the disputed courses focus on and are primarily 16 concerned with teaching a particular subject or topic. Students generally take these courses because of interest in the particular subject matter of the course. Many of the disputed courses, asserts the Board, tend to address the subject only from the perspective of some of the four competencies, such as speaking and listening, and not all four of them, unlike most of the Everyday English courses. 44. The Board maintains that the fact that funding for both Everyday English and the disputed courses comes from the same source, with similar funding requirements, does not dictate whether the courses are covered. Rather, it submits, that is determined by how the parties acted in bargaining and by the resulting language in the Collective Agreement. 45. With respect to bargaining history, the Board asserts that there are four reasons why it is clear that the parties did not intend to encompass other than Everyday English courses when the scope clause was negotiated, and when it was the subject of bargaining in later rounds. First, most of the disputed classes did not exist when the bargaining unit was certified and when the scope clause was first negotiated, and the disputed courses were not therefore in the parties’ contemplation at the time. Second, in bargaining in 2013, the Union sought to amend the scope clause to include Citizenship Instruction, rather than asserting, as it does here, that the scope clause already included such classes, a tacit admission that the scope clause did not otherwise include such courses. Third, also during the 2013 bargaining round, the Union sought express inclusion of the sorts of classes in dispute, again an acknowledgement that the scope clause did not otherwise encompass the disputed 17 courses. Fourth, in bargaining in 2014, the Union again sought to include coverage for the disputed new courses, further acknowledgment that the disputed courses were not encompassed within the existing scope clause. 46. With respect to onus, the Board argues that the scope clause must first be interpreted, and there is no onus that applies to the arbitrator’s interpretation on this issue. Once the scope clause has been interpreted, however, the Board submits that the arbitrator must apply the correct interpretation to the disputed classes. On this issue, submits the Board, the onus lies upon the Union to establish that a disputed class falls within the confines of the scope clause. 47. The Board submits that a declaration should issue declaring that none of the disputed courses fall within the confines of the scope clause. 48. In response, the Union submits there was no dispute over instructors being covered by the Collective Agreement when they taught the disputed courses until December 2015, when the Board provided its estoppel notice. From certification in 2010 until then, whenever any of the disputed courses were offered, the Union notes that the Board considered them to be encompassed within the Collective Agreement and treated instructors teaching them as so covered. Job postings to teach both types of courses were the same, and instructors filling a position were treated as in the bargaining unit regardless of which type of course they were asked to teach in any semester. The Union submits that this practice confirms that both parties believed the scope clause covered instructors when they taught the disputed courses. 18 49. As all the instructors teaching the courses are members in the bargaining unit teaching in the ESL program, and as all the disputed courses are ESL courses in the non-credit Adult ESL program, the Union submits they are clearly covered by Article 1.05. 50. The Union asserts that the disputed courses are not materially different than the Everyday English courses, since both are designed to teach, and do teach, the four competencies, and they do so in a similar manner, utilizing the same instructors who teach both types of courses in the same pedagogical manner. But even if the disputed courses were to have a different focus and were materially different in some way, the Union submits, they would still be covered by the scope clause, for they are still programs or courses taught by the same instructors in the Adult non-credit ESL program at the Board, which is the description in the scope clause of when instructors are included in the bargaining unit. In this respect, the Union notes that the instructors do not have different classifications or positions when they teach Everyday English or when they teach Novel Studies. Both before and after the giving of the estoppel notice, they are the same instructors teaching ESL courses in the same manner to ESL students in the Board’s ESL programs. There is no exclusion described in the scope clause, argues the Union, for a subset of those courses in the ESL program with a focus on a particular subject. 51. The Union argues that it is not plausible that it would ever agree to an interpretation whereby the Board could exclude courses taught by the same 19 bargaining unit members by simply changing the course titles and by simply having a course that focuses on a particular subject for the entire semester. 52. With respect to bargaining history, the Union submits that the Board advised it during bargaining that it was not necessary to list specific courses, as they were already covered under the general description in the scope clause. 53. Alternatively, the Union believed this to be so, and it submits that there was never a common understanding in bargaining that courses of the sort in dispute would be excluded unless they were specifically listed. Given the earlier dispute and grievance over the inclusion of the ACLT classes, out of an abundance of caution, the Union submits that it wanted to confirm this, so it proposed that the courses be expressly listed. The fact that the Board did not agree to the proposed amendments does not assist in interpreting the relevant language, the Union maintains, as the proposal and its rejection do not reflect that the parties had a common understanding of the ambit of the scope clause. The Union asserts that the correct interpretation of the scope clause must therefore be derived from the language used by the parties in Article 1.05. That language, it submits, stipulates that all instructors teaching Adult non-credit ESL programs are included in the bargaining unit, and that includes the instructors when teaching the ESL classes that are in dispute. 54. With respect to onus, the Union submits that since the bargaining unit description is in general terms that refer to all Adult non-credit ESL courses, and since the courses in issue are Adult non-credit ESL courses, the onus is on the Board to establish that any of the disputed courses should be excluded. 20 55. Both parties referred to a number of prior decisions in support of their arguments. Decision 56. For ease of reference, I set out again Article 1.05 of the Collective Agreement: The bargaining unit of OPSEU Local 514 is defined exclusively as all instructors employed by the employer in the Language Instruction for Newcomers to Canada (LINC), the Adult non-credit English as Second Language (ESL) and the Citizenship Instruction programs, save and except supervisors, persons above the rank of supervisor, and persons covered by subsisting collective agreements in the Regional Municipality of York. (emphasis added) 57. The matter in issue is whether instructors teaching the disputed courses are “instructors employed by the employer in . . . the Adult non-credit English as Second Language (ESL) . . . programs”. If they are, then according to the scope clause they would be included in the bargaining unit. 58. There is no dispute that when the instructors teach non-credit Everyday English courses to Adult ESL students they are teaching “Adult non-credit ESL programs”, nor any dispute that they are accordingly covered by the scope clause and are treated as such. Postings for teaching assignments to teach these courses are postings for ESL bargaining unit instructor positions and courses, and have always been so since the first Collective Agreement. Instructors teaching these courses have dues deducted and have been treated as covered by all the terms of the Collective Agreement (no reliance is placed upon how the instructors were treated after the estoppel notice was given). 21 59. In the Everyday English courses, students are taught the four competencies: speaking, listening, reading, and writing. These English language skills are taught in these classes from very beginner CLB levels to the highest CLB Level, CLB 10. The pedagogical approach in most, if not all, of the Everyday English courses is at the beginning of the course to ask students for topics of interest within the course’s described parameters, and then use the suggested topic or topics as contexts for teaching the four competencies. Instruction in these courses may focus, for example, on topics such as general conversation, telephone competencies, workplace situations, health and safety, environmental issues, including topics subject of the disputed courses, such as discussion of a novel. In some classes, most of the semester will be spent on one such topic, while in others multiple topics will be discussed. 60. The disputed courses are set out in the Board Course Descriptions as Adult ESL non-credit courses. These courses are similarly designed to teach the four competencies, but with the focus concentrated on or limited to one subject area. These courses can be more or less advanced than the Everyday English courses in terms of CLB Levels, depending on the particular courses compared. Courses include, for example, courses in Pronunciation, Novel Studies, or Workplace Preparation. While the courses are often considerably more focused than are the Everyday English courses in the subject matter taught, in many instances instructors teaching both types of courses focus on similar or identical topics. The purpose of both types of courses is to teach ESL students the four competencies, and the nature of the skill sets actually being taught are similar. In both types of courses, the same 22 group of instructors teach Adult non-credit ESL courses in order to instruct ESL Adult students in the four competencies. 61. The evaluations of students’ performance in both types of courses are largely the same, if not identical, assessing and grading the student’s skill level achieved over the course in speaking, listening, reading and writing, or some subset of the four. Students taking the disputed courses are not evaluated at the end of the course in the specialized subject of the course. Thus, students taking a Novel Studies course are not evaluated in their ability to understand the depth, insight, or intricacies of the novel being studied, except to the extent they have demonstrated proficiency in one or more of the four competencies. Students taking Entrepreneurial World of Business are not evaluated in how well they understand business concepts or in how likely they are to succeed in business, but in the four competencies. 62. The main difference between the Everyday English courses and the disputed courses is the concentration on a specialized subject in the disputed courses. There is nothing in the words used in Article 1.05 that suggests the parties intended that the scope clause cover some Adult non-credit ESL programs but not others, depending on their subject matter. 63. Where a scope clause describes inclusion in the bargaining unit in general terms and not by listing specific positions, and where disputed positions are largely the same as those covered by a scope clause, arbitrators generally find that the positions in question are included; see, for example, Corporation of the County of Lambton and Unifor Local 65 (April 24, 2015, Schmidt), Dufferin Peel Catholic 23 District School Board and CUPE Local 2026, Re: Mid Management Positions Policy Grievance – Stage 2 (May 3, 2019, Sheehan). 64. The language used in the scope clause stipulates that all instructors in the “Adult non-credit English as a Second Language (ESL) . . . programs” are included in the bargaining unit. The instructors teaching the disputed courses are still teaching “Adult non-credit English as a Second Language (ESL) . . . programs”, albeit in specialized topics. 65. The practice of the parties is consistent with and supportive of this interpretation. Significantly, for several years after the instructors become unionized, the Board treated instructors teaching any of the disputed courses that were offered as also covered by the Collective Agreement. It must have believed during this period that the Collective Agreement applied to instructors when they taught these courses. 66. Ms. Nunes testified that this was done in error, and that she learned this from someone with the Board’s human resources department or group. However, there is no other evidence as to how such a “mistake” might have occurred, and continued for years. There is no evidence that suggests why the instructors teaching these courses were considered by the B oard as covered by the Collective Agreement during this period, nor any evidence as to how or why the Board came to consider this practice inconsistent with the Collective Agreement requirements. In the absence of any evidence in this respect, the mere assertion that the recognition of bargaining rights for instructors teaching the disputed courses was done by mistake does not nullify the effect of the previous practice, and the most logical and likely reason for both parties 24 to have treated instructors teaching the disputed courses as covered by the Collective Agreement is because both parties interpreted the relevant language as requiring that they do so. 67. The giving of the estoppel notice effectively ended any reliance by the Union on the Board’s practice thereafter of treating the disputed courses as falling within the scope clause, but the notice did not nullify the effect of the practice of the Board before then, nor does it appear that the nature of any of the teaching of the disputed courses changed thereafter. 68. The Board relies on the bargaining history between the parties as demonstrating that the Union must be taken to share the Board’s interpretation, and as indicative that the Union agrees that instructors do not fall under the Collective Agreement when teaching the disputed courses. 69. The bargaining history does not, however, demonstrate that the parties had a shared or common understanding as to the meaning of the scope clause. The first round of bargaining demonstrates at best that the parties had different understandings of the ambit of the scope clause. In any event, their differing understandings were over whether ACLT instructors were included or excluded, not whether courses like the disputed courses were excluded. If any of the disputed courses were in fact then being taught, they were treated by both parties as falling within the bargaining unit, so if there was any common understanding, it would have been that the scope clause included instructors teaching such courses. 25 70. In the next round of bargaining, for the Collective Agreement running from September 1, 2014 to August 31, 2017, the Union sought to amend the scope clause both to expand its coverage, and to list the specific courses covered in order to counter concerns about later changes in courses or course titles. The Board declined to agree to this, advising the Union that the various courses then being taught by instructors were covered by the Collective Agreement, including the disputed courses then being offered, and that it was accordingly unnecessary to expressly list them. Nothing said or signed during these negotiations can be taken as reflecting a shared understanding that instructors would be excluded from the coverage under the Collective Agreement when they taught any of the disputed courses. If anything, comments made during bargaining and the continuing practice of the Board thereafter demonstrate that both parties still interpreted the scope clause as asserted by the Union. 71. In the next round of bargaining, the Board provided an estoppel notice to the Union, for the first time indicating that it held a different view as to the meaning of the scope clause. 72. The Board relies on the decision in York Region District School Board and OSSTF, 2021 CarswellOnt 14527, 150 C.L.A.S. 83 (Flaherty), a decision involving the Board and another of its unions. The issue in that case was whether two positions were included in the bargaining unit. The union had been certified when both disputed positions existed, and were known to have existed at the time. Although numerous specific positions were identified as included by the Union and were 26 expressly listed in the certificate issued by the OLRB, such as occupational therapists, physiotherapists, social workers, speech pathologists, the Union did not assert that the two positions in question were included. During bargaining for the first Collective Agreement, the union then sought to include the two positions. Ultimately the parties did not agree on listing the two additional positions, instead agreeing on a scope clause identical to the OLRB’s description of the bargaining unit. The union then grieved, asserting that the two positions in dispute were included in the phrase “including but not limited to” in the scope clause. The arbitrator concluded that the parties did not intend to include the two disputed positions, finding support for this conclusion both in the position taken by the union in seeking certification and in the bargaining outcome. 73. That case is distinguishable. Here, the vast majority of the courses in dispute did not exist at the Board at the time of certification, so the Union could not have intended that they be excluded in its application for certification. It applied for and was granted a bargaining unit that covered all “ESL and LINC instructors in the Adult Continuing Education Services Program”, without listing specific courses and without characterization of which Adult non-credit ESL courses fell within this description, unlike in the case discussed in the preceding paragraph, where the bargaining unit was described in terms of specific occupations or roles. Where a list of specific occupations or roles is part of a bargaining unit description, one would expect occupations that existed but which were not listed to be excluded. Here, neither the OLRB certificate nor the various Collective Agreements that followed described the bargaining unit by listing the programs or courses falling within Adult non-credit ESL 27 programs. What the parties agreed would be included in the bargaining unit were programs in “Adult non-credit ESL”. 74. As the bargaining history does not support a conclusion that both parties had a common understanding that the interpretation asserted by the Board is correct, the interpretation and application of the relevant language must be determined from analysis of that language, read in context. As discussed above, the words of Article 1.05 indicate that all Adult non-credit ESL programs are included, and not only those that existed at time of certification or that are Everyday English courses, an interpretation supported by the common practice of both parties for a number of years to treat instructors teaching these courses as so covered. 75. The disputed courses are all “Adult non-credit English as Second Language (ESL) . . . programs”, within the meaning of this phrase in the scope clause, and I so declare. 76. This includes the IELTS courses offered by the Board, even though they are somewhat different, as they are not only focused on improving a student’s skill level in the four competencies, but also in teaching them how to take a qualifying test or exam in order to be able to attend college or university. Even so, students are being assessed in the level of their competency in the four core skills, and instruction is designed to improve their competencies where needed. The fundamental nature of the courses is to teach or ensure that students have achieved the necessary CLB levels, or their British equivalents, that will enable them to pass the qualifying IELTS exams. The fact that students enrolled in these courses often stop attending once 28 confident they have learned enough to pass the exam does not change the nature of the course or what the instructors are teaching. Instructors are still instructing ESL students in the four competencies, albeit with the focus on test preparation. The nature of the courses and its focus is still to provide instruction for Adult non-credit ESL students in a program that teaches the four competencies, and as such, the IELTS courses fall within the ambit of the “Adult non-credit ESL” programs, within the meaning of this phrase in the scope clause. 77. In the alternative, the Board argues that the Union is estopped from asserting that instructors teaching the disputed courses are covered by the Collective Agreement. 78. As the facts set out above indicate, at no time did the Union make any representation, verbally, in writing, or by conduct, that can be construed as reflecting agreement or acquiescence with the Board’s interpretation. Indeed, the Board for a number of years after certification treated the instructors as covered by the Collective Agreement, not as excluded based upon some Union representation. The threshold requirement for estoppel, that a party has made some representation that it would not insist on its rights under the Collective Agreement, is therefore not present. Nor is there any indication that the Union intended the Board to rel y upon any representation it had made, to the effect that it agreed that instructors could be excluded from coverage, nor did the Board in fact rely to its detriment upon any such representation. 79. The conditions of estoppel are not present, and the Union is not therefore estopped from taking the position it does. 29 80. As the disputed courses fall within the scope clause of the Collective Agreement, and as instructors teaching these courses are in the bargaining unit when they do so, the grievance is upheld. 81. I remain seized for any matters arising from the grievance or this Award. Dated at Toronto this 6th day of December, 2022 Robert J. Herman - Arbitrator