Loading...
HomeMy WebLinkAboutUnion 08-12-10 IN THE MA ITER OF AN ARBITRATION BETWEEN: SENECA COLLEGE OF APPLIED ARTS AND TECHNOLOGY (THE COLLEGE) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF A UNION GRIEVANCE; OPSEU GRIEVANCE NO. 2006.0560-0002; OPSEU FILE NO. 656002; BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR SHERRl).., MURRAY, UNION NOMINEE I JOHN PODMORE, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: Timothy P. Liznick, Counsel and others APPEARANCES FOR THE UNION: John Brewin, Counsel and others HEARINGS IN THIS MATTER HAVE BEEN HELD AT TORONTO ON OCTOBER 1 AND NOVEMBER 3, 2008 INTERIM AWARD 2 On June 29,2006, the Union filed a grievance under the provisions of the colleclive agreement in effect at all material times claiming: "improper utilization of partial load faculty, Art. 2", The statement on the grievance is: " The college is in violation of the collective in that it hus wrongfully designated positions as partial load rather than full time in the following academic arcas..." which is followed by a list of positions involved in four ofthe academic areas, The remedy requested in the grievance is that: "The college shall dcsigl10te the posidons claimed as full time positions in tho faculties and schools referenced above.'1 3 The following Articles ofthe collective agreement are material: "2.02 The College will give preference to the designation of full-tJmcpositiolls as regular tatherthan partial-load teaching positions, as defined in Article 26, Partial~Load Employees, subject to such operational requirementsasthe quality ofthe programs, attainment of the progrmnobjectives, the lleed for special qualifications and the market acceptability of the programs to employers, students, and the community. Article 32.09 The Union or Union Localshall have the righttoftle a grievance based on a di fferenGcdil'eetly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contraventionofthe Agreement. Such grievance shall not include any maller upon which an empl()yee would be personally entitled to grieve mid the regular grievance procedure for personal or group grievance snaUnot beby~ passed except where the Uuit;m establishes that the cmployee has not grieved an umeasollnble standard that is patently in violation of this Agreement and that adversely affects the rights of eniployees. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Union Local Prcsident to the Director of Human Resources or as designated by the College, within 40 days from the accun-cnce or origitmtion ofthe circumstances givjng rise to the grievance commencing at Step One of the grievance procedure detailed in 32.02." I . 4 Counsel for the College raised a preliminary objection to the arbitrability of the grievance and thus the Board's jurisdiction to deal with the Union's grievance. It is alleged that the grievance is not properly a Union Policy Grievance as an employee in the bargaining unit would personally be entitled to grieve the matter as provided in Article 32.09 and therefore the grlevunce ShO~lld be dismissed. It was submitted for the College that as partial-load employees arc members ofthe bargaining unit and the issue ofthe grievance does not therefore involve the integrity of the bargaining unit, the remedial reliefis to tenninate positions of partial-load employees and require the College to give preference to full-time positions. It is alleged that in these circumstances, an individual employee could grieve a violation of Article 2.02 and therefore the Union is thereby excluded from lodging a grievance on having regard to the second sentence of Article 32,09. Pllliial-Ioad employees can be candidates for full-time positions fiS set out in the tenns of Article 27.1I(b) which is: "27.11 B Where a vacancy of a full-time position in the bargaining llnit ocellrsand is not filled internally, the College will give consideration to applications received fi'om academic employees laid off at other Colleges before giving consideration to other external applicants. For the purposes ofthis article, full-time and euo'ent parlial-Ioad employees or persons who have been partial-load employees within one month prior to the posting shall be considered intemal applicants. Such consideration shall be given for up to and ineludingten working days from the date of posting as described in 27.11 A." 5 Article 26.10 A excludes certain articles of the collective agreement from thc application ofpartial~load employces but those tenns do 110t include Articlc 2,02, It is alleged therefore that a partial-load employee can file a grievance under Article 2.02 and therefore the Union must demonstrate thc application of one ofthe three exceptions set out in the last sentence ofthat Article to procced with this grievance and that onus was not met. It is the submission ofthe College therefore that the grievance is not arbitrable ilnd this Board does not have Jurisdiction to procecd with the gricvance. Refercncc was made to the following awards: Re Cambrian College. and OPSEU Unioll Grievancc #01B369 (H.D. Brown, September t II 2002); Re Humber College of Applied Arts and Technology and OPSEU (Schiff, November 10, 1997). Rc Fanshawe Collcgc and OPSEU. Burjaw Gricvance (RD. Brown, Augnst 17,2004). It is the submission for the Union that firstly a partial-Joademployee does not IHlVC the entitlement to grievc the mutter raised in the Union's gdevancc as to a violation of Articlc 2.02 ofthc collective agrcement, The allegation is that the Collcge failed to give preference to full-timc positions with an application to all faculties in the College. There is a scheme for information to the Union sct out in thc collectivc agreement in Article 27.12 concerning personnel, classifications and location and further by Articlc 7.02 (vi)l the Union may request the College to explain its ration~le for the application of Articlc 2 ~ Staffing. This process coneems the Union not individual bargaining lInit mcmbers to resolve staffing issues. This does not involve individual 6 partial"load employees as under Article 2.02, it is the disposition of positions and not an application for vacancies in a full-time posilion as set out in 27.11 (b). It is the Union's position, that no partial-load employees entitled to grieve this issue under Article 32.09 as thcy have no intercst in this issne. The College did not meet its onus to establish that the Union was barred from grieving this issue on the basis of the second sentence of Article 32,09. Further, the Union has met the exception to the application oftl1at part ofthat Article so that the Union's grievance is arbitrable pursuant to Article 32,09. Reference was madc to the following cases: Re Seneca College and OPSEU, Grievance No, OICIlI (P.C. Picher, April 23, 2002); Re Seneca College and OPSEU (MacDowell, October 29, 1998); Re The Grievance Settlement Board and The Crown in Rillht of Ontario (Ministry of Correctional Services) (Kirkwood, July 17, 1989); Re Georg.c Brown College and OPSE~. File No. 01C218 (Kl10pf, December 17,2004). Following these hearings, tile Board has met in executive session to consider the submissions for the parties on the preliminary matter in dispute and the preparation of its award as set out herein. It is agreed by the paliies that no partial-load employee of the College grieved a violation of Article 2.02. The prior collective agreement which required continuous employment of at least four months in the application of Article 32.02 was removed so that a partial-employee has the light to file a grievance. As well, the Union under Article 32,09 has the right to file a grievance with the exception when an employee "would be 7 personally entitled to grieve", In our view, that qualification is the decisive factor of this objection by the College in that there can be no personal interest of such an employee in the application of Articlc 2.02 which relates to the dcsignation of full~time ])ositions in the College. This provision does not apply to a Pnrtial~Load posiHon which may be claimed an individual Partial-Load cmployee that it should be a full-time position as rcferenccd in the F~mshawe award (supra) but to the creation of full-time positions by the Collcge which has the authority and responsibility under Artielc 6.01 to detemline the complement and classifications of personnel required ffOm time to time. The parties have developed a scheme of dealing with staffing in which the Union has input under the terms of Article 7,02 and to which an individual bargaining unit member is not privy which procedure is part of the administration responsibilities of the Union as to the teons of the collective agreement. Thus the Board concludes that the objection oftbe College does not concern an issuc in which an employee is personally entitled to grieve to the exclusion therofore of tbe Union griev~mce procedure undcr Aliiclc 32.09. The interest of an individual cmployee may flow from a detennination by tho Union Grievance in the remedial aspect but such interest is not an employee's entitlement to challenge tho application by the Collegc of Article 2.02 which applies to the staffing throughout the College with reference to specific operational requirements. The context of Altiele 2.02 in our view takes the terms of that provision outside of the right of an individual employee to grieve and as such properly falls within the procedure for a Union grievance which is not thercby foreclosed under Attiele 32.09 US alicged by the College, '8 It is clear that a Partial-Load employee does not have an individual interest as to "The designation of full-time positions AS regular,.... set out in Article 2.02. It lUay follow that through the infonnation process of the collective agreement, a position in place may be designated as full-time by the College following which a Partial-Load employee could apply for the posting pursuant to Article 27.11 B. PaJ1ialftload employees however, do not have an initial interest and therefore no right to file a grievance to require the College 10 designllte a position under Article 2,02 which decision ifmade, is applicllble College wide and not then directed solely to an individual's grievance. It follows that such a dispute c1enJ'ly falls within the Union's right to file II grievance under Article 32,09 conceming the application of Article 2.02 as the tenn of thc second sentence thereof, does not apply to distinguish the Union's right to gl'ieve in these circumstances which involve the rights of employees in the bargaining unit. We find therefore that the Union is not barred under the terms of Article 32.09 to file this grievance and have it heard on its merits by the Board. Having regard to the foregoing, it is not necessary for the Board to deal with the application ofthe exceptions for Ihe considerations of a Union grievance referred to in the hist part of the second sentence of Article 32,09 as we have found that a Partial-Load employee is not entitled to grieve the application of A11ic1e 2.02, the application of which as stated above, clearly falls within the Union's contrnctual right to be concerned with the 9 Union grievance pursuarit to Article 32,09 and is arbitrable. The Board therefore asserts its jurisdiction to determine the grievance on its merits. It is the Board's award therefore that the preJiminmy objection ofthe College is dismissed. Hearing will be continued to deal with the merits ofthegrievances. DATBD AT OAKVILLE THIS 1 Ou. DAY OF DECEMBER, 2008. \!\~ - HOWARD D, BROWN, CHAIR v 1/ ~ \M.~ ,,~~ SHERRIL MURRAY, UNIO'N NOMINEE ~ JOHNPODMORE, COLLEGE NOMINEE DISSENT With respect I callnotjoin with the Majority rcspccting this Interim Award. The Award has not given sufficicnlrceognition to a number of as pc cIs, in particular the rights ofa group of members of the academic bargaining unit The A ward states the partial-load employees "havil no interest lit this matter". The mlljority has provided 110 ratiOllal for this statement and the conclusion. TIIl~re WllS ItO evidence called by the Union to substantiate its assertioll that partial-load employees do not h,we nn interest in the application ofArt/cle 2. Tile Hnion has said that tlley want partiallond positions to be combined to create a smaller mllllber of full- lime positions. Surely if the Union were successful in their demands for more filII-time positions it will be becallse many plulial-Joad employees wUllose theirs, which would certainly be of great interest to those cmployees. Similarly, ecrtain partial load employees may not be interested in, nor capable of, accepting full-lime work slIch thaI success in this mailer for the Unioll would mean that they cease to be employces of the Collcge. This AWllrd docs nOI provide a basis for conclusion thaI an individual employee docs not have the right 10 1110" grievance concerning Article 2. Certainly, there is nothing in the collective agreement which limits the rights of partial load employees to file grievances res]Jecling Article 2. This is ill stark COlltrast to bumping rights, for example, \lI1der Article 27.06 A (iv), (v) aud (vi) which am expressly removed from npplicalion to partialloHd employees under Article 26.10 A. The mojority concluded that the Union hadaecess to certain information plncingit in a better position to grieve thon the individual parlial load employee, TIle Uniollis notified, by the College, under article 27.12. of lIU personnel hired under the Agreement. In order to SCIVC. its partiul-load members the Union can directly advise each member of their rights so that tbe employee lllay delefniine whethenhey wish to exercise their right to grieve under the Agreement, given that any changes to the staffing pllln will have II direct effect on their future employmenl. III fact, this was speei.fically contemplated in the Knopf Award at George Brown College to which the Union made reference at the hearing in this matter. Referring to certain evidence called hefore the Knopf Board, the Board Wrolll: Concurrently, the Unioll Executive has engaged the College's administration in cffOlts to obtain illfol'l11ntion that would beller enable the Union to advise bargaining unit members about their rights under the Colloetive Agreement. With respect, the majority has misconceived their task when they entered into II deliberation of whether the Union or the individulll is belleI' situnled to grieve. The Collective Agreement simply requires that the individual be capable of grieving in order to engage the Article 32.09 restriclion upon the Union's ability to me n Union grievance. The fllct that the individual purtialload employee is capable of grieving is made abundantly clear by changes to the grievance procedure in the last round of collective bargaining. Pdor to August 2006, the collective agreement provided in Article 32.01: Arlicle 32.02 to 32,05 and 33.0 I to 33,06 inclusive apply to an employee who has been employed eontiiJuously for at least lhe preceding four mouths. That provision effectively removed the right to file gdevances from partin I load employees. Effective August 2006 t1mt language was bargained out oftlte Agreement at the Union's request. 11lat change effectively granted full rights to partiallond employees to grieve except where specifically limited elsewhere in the collective agreement. Now the Union wants 10 restrict that very ability that theysuccessfully bargained for. 2 I WO\lld have upheld the preliminary objection. Al the very least I would have dismissed ally claims by the Union respecting the period filler August 9, 2006. John Podmore December 9, 2008