HomeMy WebLinkAboutUnion 08-01-11BETWEEN:
AND:
IN THE MATTER OF AN ARBITRATION
FANSHAWE COLLEGE
(THE COLLEGE)
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(THE UNION)
AND IN THE MATTER OF A UNION POLICY GRIEVANCE (NURSING
DIVISION); OPSEU FILE NO. 511118
BOARD OF ARBITRATION•
H.D. BROWN, CHAIR
JOHN PODMORE, COLLEGE NOMINEE
RON DAVIDSON, UNION NOMINEE
APPEARANCES FOR THE COLLEGE:
ROBERT J. ATKINSON - COUNSEL
AND OTHERS
APPEARANCES FOR THE UNION:
TIM HANNIGAN - COUNSEL
GARY FORDYCE, CHIEF STEWARD
A HEARING IN THIS MATTER WAS HELD AT LONDON ON OCTOBER 11, 2007
INTERIM AWARD
A policy grievance filed by the Union under the provisions of the collective
agreement in effect between the parties at all material time is dated March 10, 2005 as
follows:
"Local 110 grieves that the College violated Article 2, 10
et al of the Collective Agreement when they failed to give
preference to the designation of full -time positions as
regular teaching positions rather than non -full -time positions
in the Nursing division.
As remedy, we seek a declaration that the College failed to
give preference to the designation of full -time teaching
positions as required by Article 2 of the Collective
Agreement. We also seek that the College immediately post
and fill 7 positions in the Nursing division. We seek as well
all union dues owing, with interest."
At this hearing, Counsel presented their opening statements concerning the parties'
positions in this grievance. As well, the Union commenced its case with the partial
evidence of Mr. Fordyce who will be continuing with his testimony at the next hearing.
The Union claims that the positions in the Nursing division which they have identified as
being taught by part-time employees from 2004 are both full -time positions which should
be filled by full -time staff pursuant to Article 2 and preference should be given to Full-
Time employees rather than Sessional. The Union identified three persons who are
claimed to have taught more than 12 months in a 24 -month period whereby under
Appendix V, Article 2, those individuals should be deemed to have completed the first
year of probation pursuant to Section 4 and should therefore have the benefits flowing
from the collective agreement.
Mr Atkinson submitted that the Union's submission concerning three individual
Sessional employees is a new allegation and not part of the grievance which does not
allege a violation of Appendix V and only relates to positions not individuals. The College
objected to the addition to the grievance of the Union's claim for these three Sessional
employees. It is its position that the grievance is limited to the issue concerning the filling
of positions in the Nursing Division and does not apply to individuals.
It was agreed at the outset that Counsel would provide the Board with written
submissions concerning the issue of the scope of the grievance. The submissions of both
Counsel were received and have been considered by the Board as to this preliminary issue
in this grievance.
The position of the College is that the Union should not be allowed by the Board
to amend its grievance to include a new claim that three individual Sessional employees in
the Nursing program be awarded full -time positions in the Academic Bargaining Unit and
have Union dues retroactively paid. At no point in the grievance or during the grievance
procedure did the Union assert any claim on behalf of any individual employee nor was
Appendix V of the collective agreement relied upon by the Union. A Grievor is not
entitled to unilaterally expand a grievance or have it encompass a matter not grieved. The
Union is required at Step One of the grievance procedure to set out the nature of the
grievance, the surrounding circumstances and the remedy sought. It is submitted that the
Union alleges that the College failed to give preference to the designation of full -time
-t
positions over non 1`611 -time positions in the Nursing Division and a declaration to that
effect is requested and that the College post and till seven positions in that Division as a
remedy.
It is submitted that Articles 2 and Appendix V address different subjects and serve
distinct purposes, the first relating to staffing, focused on positions not on individual
employees. The second concerns Sessional employees' qualifications for entry into the
bargaining unit which is not consistent with the remedial request contained in the Union's
grievance which is relief in the form of posting full -time positions. Therefore it is
submitted that in substance and in the relief sought, the Union is seeking a new grievance
not raised in the grievance procedure. Therefore, the Union should be restricted to the
terms of the grievance as filed. Reference was made to Re Fanshawe Colleize and
OPSEU, L. 110 113 L.A.C.(4 °i)328 (Burkett); Re Electrohome Ltd. 16 L.A.C.(3d)78
(Rayner).
The reply of the College to the Union's submission is in part that while the Union
might point to the activity of three Sessional employees to demonstrate a violation of
Articles 2.03(a) or ( c), it cannot assert a remedial claim on behalf of these employees for
the three positions sought. This is a new remedial claim based on a separate and unrelated
provision of the collective agreement not contemplated by the grievance. Further, Article
2.03 (b) has no relevance to the Union's grievance in that it is alleged that the College
failed to give preference to the designation of Full -time positions as regular teaching
positions which relates particularly to Article 2.03(a). An allegation of a violation of
Appendix V is wholly ditTerent from an allegation of a violation of Article 2 and is not
part of the Union's grievance.
It is the submission for the Union that Appendix V relates directly to the
Provisions of Article 2 with specific reference to Sections 2 and 4 of that Appendix which
are:
"A sessional employee is defined as a full -time employee
appointed on a sessional basis for up to 12 months of
continuous or non - continuous accumulative employment in
a 24- calendar month period.
If a sessional employee is continued in employment for more
than the periods set out in paragraph 2 of this Appendix,
such an employee shall be considered as having completed
the first year of the two -year probationary period and
thereafter be covered by other provisions of the agreement."
The College has ignored and rejects a reference to Appendix V to the Union's
grievance but the Union has grieved that the College failed to post seven Full -Time
positions in the Nursing Division and relied on non -full -time employees to perform that
work. The Union did not restrict its grievance to Articles 2 or 10 but may rely upon
additional relevant provisions in the collective agreement such as Appendix V which is a
necessary consideration. It is submitted that Article 2 makes specific reference to
Sessional employment without providing a definition of what that constitutes but which is
found in the definition set out in Appendix V and must therefore be considered as part of a
determination of the issue arising from Article 2 including Article 2.03(b) as to Sessional
appointments. The three individuals who have completed more than 12 months of
sessional employment in a 24 -month period as alleged by the Union is an issue directly
relating to a violation of Article 2 as the College failed to give preference to fill full -time
positions as regular teaching positions but are staffing those positions in the Nursing
Division with non -full -time employees contrary to Article 2.03(a).
The Union asserts a violation of Article 2 and to fully consider that alleged breach,
it is necessary in its submission, to consider Appendix V. Further, it is asserted that three
persons who have been employed as Sessional employees should have been considered as
having completed the first year of their two -year probationary period in accordance with
Appendix V, Section 4. The Union is not seeking thereby to expand the remedies sought
or claim new positions which were not set out in the grievance but rather to clarify that of
the full time positions claimed by the Union to be designated as Full -Time positions that
three of those positions should be filled by these individuals.
In Re Blouin Drywall Contractors Ltd v United Brotherhood of Carpenters and
Joiners of America (1975) 57 D.L.R.(3d)199, the Court of Appeal stated that "these cases
should not be won or lost on the technicality of form rather on the merits and as provided
in the contract so that the dispute may be finally and fairly resolved with simplicity and
dispatch ". The Union submits that it has not changed the remedy it seeks in its grievance
in that it continues to assert that Full -Time employees should perform the work in these
positions and that if these three individuals have performed more than 12 months of
sessional employment over a 24 -month period, they should be awarded three of these
positions in the Nursing Division which the Union has always claimed.
We find that the Burkett award between these parties (supra) is analogous to the
present dispute both as to facts giving rise to the preliminary objection dealt with in that
award as well as the reasons for that decision and is persuasive in this Board's conclusion
of the issue in the instant matter. At page 333, reference is made to Blouin Drywall that
while the arbitrator is directed to deal with an issue on a broad reading of a grievance with
regard to the Ontario Hydro case;
"It is not open to a party to unilaterally expand a grievance
to encompass a matter not grieved. Fairness as well as the
efficient administration of the Grievor and arbitration
process dictates that this be so. The aggrieved party is
entitled to rely on the grievance as filed albeit read in its
broadest terms and to govern itself accordingly with respect
to settlement discussions, referral to arbitration and
preparation for arbitration."
The Burkett Board found that the Union's position was to transform a grievance
concerning the status of a type of work into a grievance concerning the status of
individuals who may be performing that work. At p. 335, it is stated that:
"This is a substantial change in the nature of the grievance
filed in respect of which the Employer was entitled to rely
throughout the grievance process and referral to
arbitration... There is nothing to indicate that the Employer
understood that the Union sought to bring these individuals
within the bargaining unit and to have them compensated
with retroactive salary adjustments. These remedial
requests raise issues not contemplated by the grievance as
filed that require the calling of evidence and the making of
legal submissions and as such are not properly before us."
We find that conclusion equally applies to the Union's grievance in this matter.
What the Union has asserted is a change in its Policy Grievance concerning the proper
filling of seven positions in the Nursing Division to include 3 individual employee claims
by the College concerning their status and a resulting placement in three of the positions
alleged by the Union should be filled by full -time staff. We find that those are two
separate and distinct issues which do not arise from the face of the policy grievance of the
Union and therefore, it can be accepted that the College would not expect to deal with
individual status and qualification issues in the grievance and arbitration procedure relating
to this grievance. The Union's claim in this regard relating to the three Sessional
employees are individual issues which require evidence and submissions as to individual
circumstances and qualifications for such positions, all of which matters are completely
distinct from the issue raised in this grievance of the Union which as to the relief requested
concerns the application of Articles 2.03(A) and 2.03( Q. Appendix V deals with the
conditions of employment for Sessional Employees excluded from the bargaining unit
under which individual claims of full -time status based on Section 2 thereof are not
matters which are found within the Union's policy grievance.
The clear remedy sought by this grievance is to require the College to post and fill
seven full -time positions in the Nursing division. That statement does not lead we find, to
the encompassing of individual employees' claims for Full -Time status and for each of
them to fill such positions. That is a substantive matter arising from the terms of
Appendix V but is a separate individual issue which may arise if the Board on the merits of
the Union's Policy grievance makes a declaration that the positions alleged by the Union in
its grievance should be designated as full -time regular teaching positions rather than non -
full -time positions in the Nursing division in accordance with Article 2. That is the issue
for this Board to determine and if the Union is successful in its grievance and a declaration
of the Board is issued to that effect, individual employee issues may subsequently arise but
which do not flow as a remedial part of the Union's grievance. The claim under Article 10
which relates to deduction of Union dues from the salaries of employees in the bargaining
unit is not relevant to the issue to be determined in this grievance.
Clearly, from the foregoing decisions referred to in this matter, the Union cannot
be allowed to expand its grievance to encompass claims under Appendix V which if
allowed would lead to individual remedies which are quite separate from the Union's
remedial claim of a declaration of a violation of Article 2 by the College relating to the
designation of nursing positions. That is the sole issue arising from his grievance to which
the College would be expected to respond at arbitration. The terms of the Appendix V
refer to different employment issues which do not arise in the grievance either on its merits
or as a remedy for a breach of the relevant terms of Article 2 as alleged by the Union.
10
For these reasons, the objection of the College to the expansion and scope of the
grievance by the Union is allowed. The Board will continue the hearing of the Union's
grievance at the next scheduled hearing dates in London.
DATED AT OAKVILLE THIS 11th DAY OF JANUARY, 2008.
H.D. BROWN, CHAIR
JOHN PODMORE, COLLEGE NOMINEE
L 1<
RON DAVIDSON, UNION NOMINEE