AND IN THE FI
MA OF the arbitration of the
ER
grievance
BETWEEN
Humber College of
Applied
Arts and
Technology
and
Ontario Public Service
Employees Union
PLACE AND DATE OF HEARING Toronto Ontario October 31 1997
BOARD OF ARBITRATION
Sherrill
Murray
R J Gallivan
Stanley Schiff chairman
APPEARANCESFOR THE EMPLOYER
Hyacinthe James human
Larry Florou
resources
manager
Ross Dunsmore counsel
APPEARANCES FOR THE UNION
Lois Pineau
Robert Mills
Nelson
Roland
counsel
AWARD AND REASONS ON
PRELIMINARY OBJECTION
This union
At the
first
grievance
is
the
opening of the hearing
the union
certain
through
particulars of
ments for
a
ther valid
or
union
brought
to
arbitrability
not honoured
allegedly
grievance second the grievance
grievance
set out in the first
not under the first
limit in the second
College objected
its counsel had
the
under the academic staff collective
paragraph
the
paragraph
grievance
on
an
was
grounds
supply
satisfy the require
10 and third
32
whe
the time
brought beyond
paragraph During argument the College abandoned the
The Statement of Grievance in the
to
agreement
does not
of art
three
agreement
first
ground
this
grievance form says
grieves that the College is in violation of the Collective Agree
ment by classifying as Support Staff employees who are performing duties that
fall within the class definition of professor
OPSEU Local 562
The Settlement Desired is this
mentioned employees as professors with the
1 Reclassify the above
sponding salary and workload to be effective from the date of hire
2 The College
hiring support staff
Academic Collective Agreement
cease
to
perform duties
From the documents filed and what counsel have said to us
involves employees classified under the
B who
logists
perform duties
position is that
classified
as
started
parties
subject
brella of
a
may
in the
us
agreement
agreement
duties
as
Techno
the
employees
should be
agreement
Under the awards
a
right
the
employees involved
claim to
is arbitrable even when made
if the claim is
grievance
s
Nursing faculty The union
agree it does not matter that the
agreement
that the
by
come
under the um
someone
grievor should
the
employer
have been under
despite what the employer said and did
opening
bring The first
from the
before
particular agreement
the umbrella
given
under the academic staff
to another
says is outside any
The
in various courses
that fall within the
we see
staff collective
because of the nature and extent of the
professOrs
As the
support
corre
10define the kind of
two sentences of art 32
sentence
gives the
agreement The second
union
grievances
the union
authority to grieve any difference arising
sentence then
drastically cuts down that authority
A
grievance coming
is satisfied
would be
matter
the
personally
grievance does
entitled to
patently
alright only if
grieve
and
in violation of this
if the
second
employee has
there is
to
satisfy
standard the union is
a
3 the employee has
violation of
not
or
other of two conditions
the second
grieving
grieved
that
an
employee
unreasonable start
that
to have
persuade the board that each of
must show
us
that
and
5
1
2 the standard is unreasonable and
grieved the standard and 4 the standard is patently
the Agreement
a
adversely affects the rights
condition the union
and
an
does include such
grievance
and the awards are clear
the second condition satisfied it is up to the union to
So
not
Agreement and
employees The language of the provision
the elements exists
One
not include any matter upon which
the Union establishes that the
dard that is
of
first
within the first sentence is
the standard
adversely affects the rights of
in
em
ployees
We look at the first condition the
which
an
employee
any of the affected
would be
personally entitled
employees could
must not include any matter upon
grievance
to
grieve Here
not have
grieved
because the time limited in the agreement for
grieving
does not allow the union to
gested
union has
a
continuing
grievances This
that
the matter The fact that none did
ran
out
first
as
grieve in the employees place At
argued that the grievance is
of time bars for individual
problem
we see no reason
one
we
and
the
College sug
all events the
if so that
might solve any
need not consider
or
decide
The union fails under the first condition
We turn to the second condition We conclude that the union also fails here
As
we
read the
grievance form
even
without the
documents counsel filed the union does not
there is not and cannot be
patently
in violation of the
a
challenge
agreement
adequacy What the
nology
B
positions
are
a
an
unreasonable standard
Looking
specified
or one
to dictionaries for
measure or
union says at most is that the
doing work
and elaboration in
challenge any standard It follows that
and so On
define standard in this context to mean
or
to
repetition
employees
that is
help we
criterion of endeavour
in the particular Tech
at the standard of a Professor
as
set out in the
Class Definition in Section II of the Job Classification Plans of the collective
agreement
according
to the
of endeavour or
union
their work in the jobs
they are actually doing
adequacy Far from attacking the standard
as
meets that criterion
the second condition
re
the union
quires
adopts it for the purpose of
and does not
cannot
to
put into the collective agreement
ation of the agreement If there is to be
we
know them it
the level of
Nursing
might
be
seeks in this
In the
patently
would ever hold that
as
under the
professors
a
could be unreasonable
challenge
union
in violation of this
standard the
or
parties
otherwise in viol
to some standard on the facts as
support staff agreement and might be
in the
jobs they do
grievance under that agreement could not of
ployees the reclassification
one the
brought
a
or
performance expected of Technologists B
courses A
The
grievance And adopting it the
say that it is unreasonable
Agreement even assuming that arbitrators
agreed
the
course
under the academic staff
to
in the various
get
the
em
agreement the union
grievance
circumstances
we
do not discuss the timeliness of the
spreliminary objection
College
is allowed
The grievance is dismissed
collective agreement does not allow the union to
DATED at Toronto this 10th
grievance
bring
day of November 1997
c c
Sherrill
Murray
as
This member dissents from the
It
was
that
understood from the
majority
outset
that
an
individual had
not
grieved
they were performing work of the academic bargaining unit and
classified
as
members of the support group thus
the numerous
in order
The
to
satisfying the
a obstacles the Union
criteria k
police the integrity
of the
first of
must overcome
bargaining unit
filing of the instant grievance is merely
the
beginning of the Unions
attempt to establish that the college is conducting business inconsistent
with the collective agreement The Union has
setting
a
That
is
standard that is patently unreasonable specifically hiring non
bargaining unit members
integrity
alleged that the college
to
teach How much
of this collective agreement
allegation
if true is
can one
more
blatant
a
violation of the
fred
precisely the unreasonable
standard
basis that is
patently in violation of this agreement
The Chair has
designated the meaning of standard improperly Standard
also bears the
meaning of regular basis emblem
basic normal typical sample stock regulating
The loss of work
to
that
bargaining unit is
extremely premature
at
this
or
support its synonyms
approved
the result of hiring
ch adversly
aining unit members to teach wh
It is
or
non
barg
affects the employees
point wi
bOCt the benefit
of the merits
of the issue
to
determine whether
in fact been breached To
the
tant
or not
prohibit the
the collective agreement has
Union from
integrity of the bargaining unit is both unfair
with its
obligation to
of the issue
on
its
such narrow
membership
attempting to protect
to the
Further
a
Local and inconsis
premature dismissal
rigid and mistaken grounds
further
hampers the parties from addressing the tree problem The altogether
bizarre result of this award is
evidence
to
to
compel the Union
deal with the preliminary
objection
to muster
and
place
all of its
numerous
extremely lengthy written grievances before the panel in order
have
a
complaint heard
This board also
sees no
Is that
need
before the panel Timeliness
unit who otherwise
work of that
meets
really
what these
parties negotiated
to answer a
question placed squarely
Everyday
person
a
not
in the academic
the criteria of inclusion in that unit
unit is in this members opinion entitled
violation is of an
ongoing
to
nature
to
performs
grieve that the
and thus within the time requirements
This Board could have and should have dealt with and dismissed the
employers objection
to
the timeliness of the grievance
strongly disagree with the majorities interpretation of the facts
measured
against the language
and would have allowed the
as
parties
to
the
present the merits of the
case
full evidence of the duties and
to
be
the
performing duties
employer is
agreement
on
indeed
In this members
opinion only after
responsibilities of the
of the academic
unit
can a
persons
alleged
Board determine if
engaged in activities in patent violation of the
Thus the decision of this Board should have been
the preliminary issue and allow
a
full
heating of the
s
Union
ill Mun
shen
ay
to reserve
grievance