GSB#2015-1807

UNION#2015-0999-0019

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Barry Stephens

Vice-Chair

FOR THE UNION

Jesse Gutman Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Felix Lau Treasury Board Secretariat Legal Services Branch Counsel

HEARING

March 3, 2016

Decision

1The grievance relates to the school year and the work assigned to the members of the bargaining unit. The union alleges the employer violated the collective agreement by failing to start the school year on September 1, 2015. The school year started, instead, on September 3, 2015. The union seeks a declaration of violation and compensation for affected members of the bargaining unit for the loss of pay during the two relevant days. The affected members of the bargaining unit are Residential Counsellors and are employed as seasonal employees.

2The parties proceeded by way of agreed statement of facts, as follows:

Grievance

1. The following grievance (OPSEU No. 2015-0999-0019) dated July 22, 2015 is before the Grievance Settlement Board.

Statement of Grievance

“The union grieves the Employer has violated the OPS Collective Agreement including but not limited to Article 2, 32 & Appendix UN 6 by failing to commence the scheduling of hours on September 1, 2015.”

Settlement Desired:

“Full redress including but not limited to:

1. An order to cease and desist

2. An order to comply with the collective agreement

3. An order to commence the scheduling of hours on September 1, 2015

4. An order to make whole any individual detrimentally affected by the Employer’s actions.”

Background – Provincial Schools Branch

2. Provincial Schools Branch (PSB) is part of the Ministry of Education and is responsible for the administration, policies and operations of the following schools (Appendix A): the Provincial Schools for the Deaf (4), a Provincial School for the Blind / DeafBlind (1) and the Provincial Demonstration Schools (4) for students that have severe learning disabilities.

3. The Provincial Schools are located in Milton, Belleville, Ottawa, Brantford and London. The sites include both elementary and secondary schools, as well as residences for students who stay on site during the school week.

4. The schools have a long history that pre-dates the OPSEU collective agreement. For example, the Sir James Whitney School for the Deaf in Belleville opened in 1870 and the W. Ross Macdonald School for the Blind in Brantford opened in 1872.

5. In the 1970s and 1980s the residential program at the schools operated seven days a week, and employees with classifications identified in Appendix UN 6 were hired as classified staff in Schedule A. After 1991 the residential program began operating only five days a week, which resulted in a reduction of working hours available for staff. After this the Employer started hiring seasonal employees through attrition – as the classified Schedule A employees resigned or retired, the Employer replaced them with seasonal employees.

6. In 2013 Provincial Schools declared the remaining classified Schedule A positions at the Residence Counsellor 2 and Residence Counsellor 3 levels surplus. These Schedule A positions were replaced with seasonal positions. The majority of impacted people retired/ chose to exit, and the remainder accepted job offers for seasonal positions (doing the same job). There are still three (3) classified Residence Counsellor 2 and Residence Counsellor 3 employees on the books because they are on LTIP.

7. The students in the Provincial Schools attend classes during normal school hours, with the Residential Counsellors having responsibilities for the students during meals and during the periods before and after school when the students return to the residence. Various leisure, sports and recreational activities are supervised until students go to bed, and the Counsellors assist students with their homework. The Residence Counsellors remain in the residence overnight to monitor students and again on the following morning supervise morning routines and breakfast for the students and then go off duty at around 9:00 a.m.

School Calendars

8. The Employer establishes the annual employment period for seasonal positions based on operational needs and the school year calendar. The school year calendar is established on an annual basis. For example, the school year calendar is developed in the spring and finalized in May for the upcoming school year in September. OPSEU is consulted on the establishment of the school year calendar.

9. The determination of the length of the school year and the number of instructional days is subject to O Reg 304: “School Year Calendar, Professional Activity Days” under the Education Act. Subject to certain exceptions set out the Regulation, a school year includes a minimum of 194 school days, and the school year “shall commence on or after the 1st day of September and end on or before the 30th day of June.” A school board is required to designate a minimum of three school days as Professional Activity days, and has the ability to designate up to an additional four school days as Professional Activity days. Students do not attend class on Professional Activity days.

10. The Centre Jules-Léger in Ottawa is a French language school and has a different school year calendar from the other Provincial Schools. The school year calendar for Centre Jules-Léger is aligned with the school year calendars for French district school boards, specifically that the school year starts a week earlier (often in August) and ends a week earlier (in mid-June) than the other English schools. For instance, the start date of the school year for the Centre Jules-Léger has ranged from August 24th in the 2009/2010 school year to August 31st in the 2015/2016 school year.

UN Appendix 6

11. The first OPSEU collective agreement in 1976 included Appendix UN 6, which applies to employees in the classifications of Residence Counsellor 1, 2, and 3 and Nurses Special Schools employed at the Ontario Schools for the Deaf and Blind. It states that “Normal scheduling of hours shall be September 1 to June 30.”

2015/2016 School Year

12. On June 8, 2015, the Ministry informed the Union that in the English language schools, the seasonal contracts for the Residence Counsellors 2 positions would start on September 3, 2015. In response to the Union’s question of why the contracts would not start on September 1, 2015, the Employer confirmed it was based on operational needs – the students would not return until September 8 and there was not enough work to bring residence counsellors back on September 1st.

13. On June 11, 2015 the Employer confirmed by email that “…benefits for seasonal employees will be effective on September 1st”. On June 16, 2015, the Union questioned by email whether seasonal employees would receive an attendance credit for the month of September if they started on September 3, 2015. On June 22, 2015 the Ministry confirmed that attendance credits would be assigned for the month of September for employees who work all scheduled shifts (e.g. no unpaid LOA). The Ontario Shared Services confirmed that benefits would be effective for these employees on September 1st

14. Starting on June 15, 2015, the Employer provided contracts (WEAR forms) for the 2015/2016 school year to seasonal employees, stipulating a start date of September 3, 2015 for the Residence Counsellor 2 positions and a start date of August 31, 2015 for the Residence Counsellor 3 positions at the English-language schools. The Residence Counsellor 2 and Residence Counsellor 3 positions did in fact start on their respective start dates of September 3, 2015 and August 31, 2015. September 8, 2015 was the first day for students to attend school. The school calendar for the 2015/2016 school year is attached as Appendix B.

15. June 29, 2016 will be the last day for students to attend school and the last day of employment for majority of seasonal employees before hiatus period. For seasonal employees in the Residence Counsellor 2 classification, they will have worked 192 days in the 2014 / 2015 school year and these employees will work 193 days in the 2015/2016 school year.

Appendix A

Schools for Students who are Deaf/hard of hearing

• Sir James Whitney School for the Deaf, Belleville

• Ernest C. Drury School for the Deaf, Milton

• Robarts School for the Deaf, London

• Centre Jules-Léger, Ottawa

Schools for Students with learning disabilities (Demonstration Schools)

• Sagonaska Demonstration School, Belleville

• Trillium Demonstration School, Milton

• Amethyst Demonstration School, London

• Centre Jules-Léger, Ottawa

Schools for Students who are Visually Impaired, Blind, and Deafblind

• W. Ross Macdonald School, Brantford

• Centre Jules-Léger, Ottawa

3The dispute centers on the application of Appendix UN6, “Addendum for the Institutional and Health Care Classification Group.” The language in dispute reads as follows:

a) The hours of work shall be established by the Ontario Schools for the Deaf and Blind, and they may vary depending in the situations which exist at the different schools. … Normal scheduling of hours shall be September 1 to June 30.

The union takes the view that the last sentence in this paragraph is mandatory in the sense that it requires the employer to employ the members of the bargaining unit during the defined period.

4Seasonal employees are defined in the collective agreement in Article 32 as those who work for a period of at least eight consecutive weeks but less than twelve months. Seasonal employees retain a right to be recalled by seniority to the same position as previously held. The union asserts that this language means that the employer has bound itself to a school year for seasonal workers that starts on September 1. The union argued there was some “wiggle room” to deal with circumstances, such as when September 1 falls on a weekend and for the special arrangements at the French school referred to in the agreed statement of facts.

5The employer responds that the grievance fails for two reasons. First, Appendix 6 has no relevance to seasonal employees. The appendix was negotiated before the parties began to use seasonal contracts. In this regard, the employer points to Article 32.31, which sets out the specific articles of the collective agreement that apply to seasonal employees. The list does not include Appendix UN6. (There was no dispute between the parties that the reference to UN6 in Article 32.31.2 is not a reference to Appendix UN6.) The employer argues that the union’s interpretation was also absurd, since, if mandatory, it would require the employer to bring employee’s in every year on September 1, regardless of whether the day was on a weekend or a was a statutory holiday. Also, if the language was mandatory, the schedule used at the French language school would not be permissible. The union position that there was some flexibility in the language to permit exceptions or “wiggle room” is not tenable. Either the language is mandatory or it is not, and when major exceptions are allowable the language cannot reasonably be considered mandatory.

Decision

6In my view the grievance cannot be sustained. I accept the employer’s primary argument that Appendix UN6 does not apply to seasonal employees. It is not listed in Article 32.31. That is sufficient to resolve the dispute. However, even if that were not the case, the union’s position is legally untenable. Essentially the union was attempting to argue that Appendix UN6 set up a mandatory school year with guaranteed days of work for employees, but was forced to recognize significant exceptions. Collective agreement interpretation cannot be carried out in such a manner. The parties are free to set up mandatory language, and even to stipulate specific exceptions to such language. It would not be appropriate, however, to infer mandatory language as well as major exceptions from such language in Article 32.31. Rather, the article reflects on its face concepts of flexibility, given the references to hours of work “varying depending on the situations” at the various schools, and the “normal scheduling of hours.” More importantly, the history of the application of the school year in the workplace, including the scheduling at the French schools and the variations caused by weekends and public holidays, indicates that the working year for the affected employees has not been applied in a manner consistent with the union’s interpretation of Article 32.31.

7Given the above, it is my view that the grievance should be dismissed.