HomeMy WebLinkAboutUnion 23-09-30
IN THE MATTER OF AN ARBITRATION
UNDER THE COLLECTIVE AGREEMENT
AND THE ONTARIO LABOUR RELATIONS ACT
BETWEEN:
HUMBER COLLEGE
(“the Employer”)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(“the Union”)
Grievance 2021-0562-0001
Re P. Eng. Designation
AWARD
Arbitrator: Barry Stephens
Union Counsel: Angela Zhu, Grievance Officer, OPSEU
Employer Counsel: Gregory Power, Tim Liznick, Quinn Brown, Hicks
Heard by Video Conference
on April 4, 2023
AWARD
[1] This is a policy grievance involving a dispute about whether employees hired
under the Academic collective agreement with the professional engineer qualification (P.
Eng.) have been properly credited for the qualification when hired. The union asserts
that the grievance could affect about a dozen employees. The collective agreement
contains an addendum that set out the terms of a job classification plan, and in Section 1
Factor 1, the plan sets out values to be attributed to various levels of qualification and
experience for the purposes of placing employees on the wage grid when they are hired.
The grievance contends the employer has improperly calculated the P. Eng. designation.
At the hearing on April 4, 2023, the employer raised two preliminary objections, asserting
the policy grievance is inarbitrable. This decision deals with those preliminary objections.
Employer Submissions
[2] The employer submitted that the instant grievance was filed by the union in
response to a meeting of the Union College Committee (UCC) on January 26, 2021. At
that meeting the parties discussed how the P. Eng. designation should be counted and a
few days later, the union filed the policy grievance that is before me.
[3] The employer raised two objections to the grievance. The employer’s first
objection was that the grievance was moot because no employee with the P. Eng.
qualification was hired by the College in the 40 days prior to the grievance. The grievance
was filed on January 28, 2021, and 40 working days prior would have been December 19,
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2020, but during that period the P. Eng. designation did not factor into any hiring
decisions. Article 32.09 of the collective agreement requires that grievances be filed
within 40 days, “…from the occurrence or origination of the circumstances giving rise to
the grievance.” Since no one was hired with the designation during this “elimination
period”, there could be no difference or dispute between the parties to litigate. There
was no event that could trigger the collective agreement breach grieved, and the
grievance was “fictional or purely hypothetical.”
[4] The second objection is that the grievance did not fit within any of the exceptions
in Article 32.09. Even if one looked at hirings involving the P. Eng. designation prior to
the “elimination period”, there was no basis for concluding that the employer applied an
“unreasonable standard” that was “patently in violation of the collective agreement.”
The employer conceded it was arguable that the issue in dispute affected the “rights of
employees”, but the union was required to satisfy all three elements of the exception in
Article 32.09 in order to file a valid policy grievance. Since they could not meet the test
with respect to the first two elements of the exception the grievance was not a proper
policy grievance under Article 32.09, and it should be dismissed.
[5] The employer argued that the two objections were jurisdictional and could not be
waived. The theory behind this view, as explained in the jurisprudence, was that a board
of arbitration does not have the authority to create jurisdiction. The jurisdiction to hear
and determine a grievance has to arise from the collective agreement. The employer
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submitted that the restrictions found in Article 32.09 were not procedural but defined the
substantive rights of the parties as well as the jurisdictional ambit of arbitral review.
Article 32.09 defined the line between two entirely different types of grievances with
clear boundaries. For example, the time limit for filing individual grievances was set at 20
days, while that for policy grievances was 40 days. They were clearly mutually exclusive
processes. The parties have agreed that grievances filed as policy grievances must fit
within the parameters of the defined scope of such grievances and “shall not include” any
matter that could have been grieved by an individual. Further, Article 32.09 stipulates
that the regular grievance procedure with respect to individual or group grievances “shall
not be by-passed.” There is no question that the issue of whether an employee has
received proper credit for a P. Eng. designation is a matter that could be grieved by an
individual.
[6] The employer reviewed the background of joint discussions between the parties
that led to the grievance. The minutes of the Academic UCC for September 22, 2020,
indicated that the union raised the issue of the employer’s interpretation of the P.Eng.
calculation in relation to a faculty member hired around June 2020. The union again
raised the issue at the November 3, 2020, UCC meeting and the employer’s response was
that the matter should be addressed as an informal grievance. It was raised again at the
UCC meeting on December 15, 2020. The employer confirmed its interpretation of the P.
Eng. calculation at the following UCC meeting on January 26, 2021, and the union then
filed the grievance two days later. No employee filed an individual grievance.
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[7] The employer submitted that a policy grievance could not be valid under Article
32.09 unless the grievance was filed “within 40 days of the occurrence or origination of
the circumstances giving rise to the grievance.” In other words, there must be a triggering
event based on some action taken by the employer. A statement made by the employer
at a meeting was not a triggering event, there must be some action otherwise there could
be no “difference” that was capable of being litigated. There were no employees hired
with the P. Eng. designation during the 40 working days prior to the filing of the policy
grievance. The employer took the position that the 40-day requirement could not be
triggered by attempting to characterize the circumstances of any employee hired prior to
the 40-day period as falling under a continuing grievance, and that this conclusion was
supported by the jurisprudence. The issue of whether grid placement was the proper
basis for a continuing grievance was addressed by Arbitrator Keller in Timmins Board of
Education. The act of setting an employee’s pay rate at the date of hire was, in effect, a
single event that is not renewed every payday. A ‘continuing’ grievance requires a
continuing breach, and continuing damages are not sufficient. The employer makes the
decision once and the employee must grieve in a timely manner at the time the decision
is made. Given the state of the law, there must be some event within the 40 days prior
to the filing of the union grievor under Article 32.09 to form a valid basis for the grievance.
In this case, there was no such event and, as a result, the grievance failed.
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[8] The employer’s submitted that a discussion or theoretical disagreement between
the parties was not sufficient for a policy grievance. In effect, the union was purporting
to grieve a point of view expressed at a UCC meeting and, if that was a proper basis for a
grievance, there would be little useful discussion at such meetings, which are meant to
foster agreement, not give rise to litigation.
[9] The employer submitted it was clear that the issue between the parties was the
treatment of individuals, not the results of a discussion held in the UCC. In essence, the
discussion at the UCC was about the treatment of a single employee, who had the right
to grieve the matter. New hire employees were not isolated but immediately had access
to union oversight and support. The collective agreement required the union be advised
of the hiring of all new employees. For those individuals allegedly affected by the
calculation of the P. Eng. designation, the remedy would have been for them to follow
the collective agreement process for filing an individual grieving, including raising the
issue in a timely fashion. No such grievances were filed. The union was aware of a
disagreement as early as the summer of 2020, and first raised that issue with the
employer at the UCC meeting in September 2020. Given this timeline, even if the
grievance was a valid policy grievance, it was filed outside of the 40-day period and was
therefore untimely.
[10] Even if the grievance could be seen as timely, the employer denied the union had
demonstrated compliance with the exceptions in Article 32.09. There was no evidence of
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the employer implementing an unreasonable standard. The employer reviewed the new
employee’s qualifications, assessed the value of those qualifications, rendered a decision
on the starting salary and communicated the details of its decision to the union as
required by the collective agreement. The union was, at that point, free to agree or
disagree with the outcome, but there was nothing inherently unreasonable in the
employer’s standard of decision-making. Third, the union failed to demonstrate that the
employer’s actions constituted a patent violation of the collective agreement. Although
the P. Eng. was mentioned as an example under “formal integrated work/study”, it was
not clear that all aspects of the P. Eng. process were to be credited under experience,
under university, or under formal integrated work/study, or some or all. That was an
honest difference between the parties over the meaning of the language. There was,
therefore, no patent violation, as required by Article 32.09.
[11] The employer relied on the following authorities: Fanshawe College, [2019] CanLII
94005 (Stout); Seneca College, [2015] CanLII 27388 (Schmidt); Durham College, [2012]
CarswellOnt 13812 (Knopf); St. Lawrence College, [2011] CarswellOnt 13554 (Starkman);
Cambrian College, [2023] CarswellOnt 3216 (Bendel); British Columbia, [1982] CarswellBC
2633 (Getz); St. Clair CDSB, [2011] CarswellOnt 946 (Luborsky); Morbern Industries, [1971]
CanLII 1942 (Gorsky); Toronto DSB, [2000] CarswellOnt 9381 (Schiff); International Nickel,
[1962] CanLII 231 (Ont. C. A.); Cambrian College, [2002] CarswellOnt 9892 (H.D. Brown);
Fanshawe College, [2007] CanLII 54661 (Knopf); St. Lawrence College, [2012] CarswellOnt
17162 (Leighton); Timmins Board of Education, (unpublished, Keller, November 14, 1997);
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Dominion Glass (1973), 40 D.L.R. (3d) 496 (Ont. C.A.); Niagara College, (unpublished, H.D.
Brown, November 25, 1993.
Union Submissions
[12] With respect to the 40-day objection, the union submitted that the issue between
the parties started to come into focus at the time of the UCC meeting on September 22,
2020. The Acting President of the union local advised the committee that the union had
an exchange with the HR department during the prior summer about what the union
believed to be a change in the employer’s approach to calculating the P. Eng. credit after
a concern was raised by a member. The union was seeking clarification as to the
employer’s position. The employer representatives promised to respond directly to the
Acting President. The issue was raised by the union at the next UCC meeting on
November 3, 2020. The employer stated it might be better if the individual issue was
addressed through an informal grievance, but that the interpretation issue could be
brought back to the UCC for further discussion at a later time. The union raised the matter
again at the UCC held on December 15, 2020, stating that the employer appeared to have
changed the calculation of the employee’s initial salary that occurred in June 2020 based
on a new calculation with respect to the P. Eng. designation.
[13] The issue came to a head, the union argued, at the UCC meeting on January 26,
2021, when the employer clarified that the change to the salary calculation was
implemented in May 2020, and was made retroactive to May 2017. Once the employer’s
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new interpretation was clarified, the union filed the grievance two days later, and that
grievance is now before me.
[14] The union asserted that, even if an individual could have grieved the improper
calculation of the P. Eng. qualification, the policy grievance was legitimate and fit the
exception in Article 32.09. The employer had changed the calculation of the P. Eng., and
as soon as the union verified this change a grievance was filed. There was no need for an
individual to grieve the dispute since it was purely a conflict of interpretation between
the parties.
[15] The union submitted that the 40-day time limit could not begin to run on this
policy grievance until the employer had an opportunity to review the issue first raised in
September 2020. The employer took several months to clarify its position. It was only
once the union discovered that the employer’s interpretation of the language had
changed that there was an obligation to grieve. The grievance did not seek compensation
or any other individual remedy. The focus of the policy grievance was to clarify the
requirements of the collective agreement with respect to the P. Eng. designation and to
re-establish a joint understanding of the collective agreement provisions. In the context
of Article 32.09, the “…occurrence or origination of the circumstances…”, that triggered
the grievance was the union learning the employer had unilaterally changed its approach
to the P. Eng. The employer has clearly communicated the manner in which it intends to
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administer the collective agreement provision, and it has applied this interpretation to at
least one employee. It was clear that this was not a hypothetical grievance.
[16] Turning to the appropriateness of the policy grievance under Article 32.09, the
union asserted there were instances when a dispute could support both individual
grievances and a policy or union grievance. A union grievance was appropriate where
there was a broader issue in dispute and where there was obvious value in clarifying the
interpretation of the collective agreement on an ongoing basis in order to minimize future
disagreements. The grievance in this case had met the requirements of Article 32.09, in
that the employer had implemented an unreasonable standard, that there had been a
patent violation of the collective agreement and that the violation affected multiple
faculty members. The employer’s change of interpretation was unreasonable because it
placed new employees in the position of filing an immediate grievance once they are hired
when they are in a vulnerable position. In effect, the employer’s position would force
those individuals to bargain directly with the employer to secure favourable and variable
treatment, which was contrary to the fundamental principles of collective bargaining. The
employer’s unreasonable standard deprived employees of the salary they should receive
under the collective agreement. The union submitted it had the right to grieve in order
to ensure that the correct standard would be applied to all new hire employees, in
accordance with the collective agreement.
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[17] The union relied on the following authorities: WSIB, (GSB 2017-2073, Misra, Aug.
24, 2018); Extendicare Falconbridge, [2004] CanLII 71813 (Harris); Fanshawe College,
(unpublished, Knopf, Dec. 17, 2002); Fanshawe College, (unpublished, Stout, April 26,
2016.); Humber College, (unpublished, O’Neil, Oct. 15, 2015.); Algonquin College,
(unpublished, Davie, July 4, 2012.)
Conclusions and Decision
[18] The Academic collective agreement contains specific language governing the
calculation of starting wages for new employees in an unnumbered addendum entitled,
“Job Classification Plans for Positions in the Academic Bargaining Unit.” The scheme sets
out how the employer must credit a new employee’s work experience and formal
qualifications in order to determine the level on the wage grid at which the employee is
initially placed. Section 1 addresses the calculation of experience and formal qualification
as follows:
1. Appointment Factors
A) Experience: Relevant Teaching/Relevant Occupational
Relevant occupational experience generally means full years of
experience in a field of work related to the material to be taught or the
job to be done, or to some allied aspect of it. In determining the number
of years to be counted, the College hiring must avoid the extremes of
counting either “years of time passed” or “years of entire non-repetitive
experience”, and must make a fair assessment of an applicant’s
experience.
For example, an applicant who had spent some years as a sales clerk
before qualifying as an engineer should not expect that sales experience
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to count as relevant experience if the person is being hired to teach
engineering.
Part-time experience should be totalled only if it forms part of a regular
program of development such as a co-operative educational program.
Double counting must be avoided. For example, if an applicant worked
as a graduate assistant while pursuing an advance degree, the person
shall not be given full credit for both experience and educational time.
Similarly, relevant teaching experience means full years of teaching
experience at a level comparable with the level required of an applicant.
Again, double counting must be avoided for teaching experience as, for
example, a graduate assistant while pursuing advanced qualifications.
The valued to be given for experience are:
- First 5 years: 1 point per year
- Next 9 years: 2/3 point per year
- Next 12 years: 1/2 point per year
B) Relevant Formal Qualifications
Formal qualifications are those which constitute the norm in institutions
of post-secondary education in the Province of Ontario. Only full years
of post-secondary education at successively higher levels, and leading to
a diploma, professional accreditation or degree, are recognized. For
example, a graduate of a three-year technology program in a College
would be given 1 ½ points for each of the three years, regardless of the
length of time actually spent by the individual in obtaining the diploma.
No credit is to be given for a year of study in which there was significant
duplication of other studies. Therefore only the highest qualification will
be used in computation unless the subject areas are from different
disciplines and all relevant to the appointment.
- CAAT Diploma or Post-Secondary Certificate-
per year (level) completed: 1 ½ points
(Maximum of 4 years)
- University Degree- per year (level) completed 1 ½ points
(Maximum of 6 years)
- Formal integrated work/study program such as
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P.Eng., CA, CGA, CMA (formerly RIA),
Certified Journeyperson-
per year (level) completed: 1 ½ points
(Maximum of 5 years)
The maximum credit for formal qualifications shall be six (6) years. For
employees
hired after October 1, 2017, the maximum credit for formal qualifications
will be
seven (7) years.
(Note that years included herein are not also to be included
under Factor A)
[19] The grievance before me speaks to the alleged harm suffered by individual
employees hired with the P. Eng. designation and seeks individual remedies. At the
hearing, the union abandoned the issues related to individual employees and reduced the
grievance to a narrow question of contract interpretation, which would normally form
the basis for a union policy grievance. This brings into focus Article 32.09, which defines
a union grievance between these parties as follows:
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 grievance 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
affect the rights of employees.
Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office
or 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
in 32.02.
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[20] Article 32.09 stipulates that the union cannot file a union policy grievance unless
the grievance is submitted within 40 days of the “occurrence or origination of the
circumstances” that gave rise to the grievance. Moreover, the union cannot file a policy
grievance about a matter “upon which an employee would be personally entitled to
grieve” unless it can demonstrate that the individual has not grieved an “unreasonable
standard”, that the standard was “patently in violation” of the collective agreement, and
that the standard adversely affected the rights of employees. The jurisprudence between
the parties with respect to Article 32.09 establishes that all these elements must be
present for a proper union grievance.
[21] I accept the employer’s submission that the grievance is not arbitrable because
there was no occurrence or circumstance that transpired within the 40 days prior to the
filing of the grievance about which the union could file a proper policy grievance. The last
person hired with a P. Eng. designation appears to have become employed no later than
June 2020. The grievance was not filed until January 28, 2021, well outside the 40 working
day limit.
[22] I do not accept the union’s submission that the employer interpretation of the P.
Eng. calculation communicated at the UCC meetings constituted a grievable occurrence
or origination of circumstance. In general terms, it is not appropriate to base a grievance
on a difference between the parties in the absence of a specific fact situation in which the
employer has taken some action. There may be exceptions to this approach in cases
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where the damage caused by a declared interpretation or stated intent to act could not
be reversed or properly compensated after the fact. In all other cases, an identified
difference of interpretation should be treated as a hypothetical or potential dispute
unless and until the employer actually acts on its expressed views. There is nothing in
Article 32.09 or about the disagreement between the parties in this case that would lead
me to adopt a different approach. For this reason, it is my view that the verbal
disagreement at the joint meeting on January 26, 2021 did not qualify as an “occurrence
or origination of the circumstances” as required by Article 32.09.
[23] Having reached the conclusion above, it is not necessary to rule on the employer’s
objection with respect to whether the grievance fit within the exception set out in Article
32.09 and I make no findings in that regard. The grievance before me is not valid because
it was not based on an occurrence or origination of circumstances within the 40-days prior
to the filing of the grievance, as is required under Article 32.09. I agree with the
employer’s submission that I do not have the jurisdiction to hear and resolve the dispute
and, as a result, the grievance is dismissed.
________________________
Barry Stephens, Arbitrator
September 30, 2023