Two grievances were filed at the University of Windsor concerning a temporary academic appointment. At Windsor, the faculty union has a collective agreement that incorporates some, but not all, of the Senate provisions governing appointments. For whatever reason, the parties to the Collective Agreement elected not to reference the appropriate bylaw of the Windsor Senate (Bylaw 20), nor to directly incorporate all of the provisions of Bylaw 20 in the body of the Agreement. One of the grievances concerned the failure of the University to comply with the provisions of Bylaw 20. A second grievance was filed because the University took the position that the faculty union had no right to represent the grievor in spite of the fact that the grievor was currently employed in another temporary position.
On the first question, the Arbitrator found that his jurisdiction was limited to the Collective Agreement and could not be expanded to include Bylaw 20. The union had attempted to suggest that the “just equitable” exercise of management rights clause could be read to bring in the whole of Bylaw 20. Unfortunately, the Windsor agreement’s management rights clause is unusual. It provided that management rights would be exercised in a “just and equitable manner consistent with the collective agreement.” Most such similar clauses provide for the exercise of management rights to be “in a just and equitable manner and consistent...” The difference a word makes! Partly because of this wording issue, the arbitrator held that he could not bring in the balance of Bylaw 20.
On the second question, the arbitrator made some obvious and important observations. First, he observed that the trade union’s “sole and exclusive bargaining” agency meant that the trade union could represent all employees. This is somewhat obvious; however, universities often want to pretend that a current “temporary” employee applying for another “temporary” job should be treated like an applicant off the street. Second, he held that the trade union itself had an interest in the integrity of the appointment process that was separate from the member’s interest in overturning the decision.
Frankly, I think the Arbitrator got it right all the way down the line. He was right that the parties did not have contractual language that would import the entirety of Bylaw 20. While unfortunate in this case, that is the kind of thing that can be remedied in collective bargaining. I think he was also right that current employees enjoy substantive rights that can be the subject of grievance even when we are talking hiring for a future temporary position. And I think he was right that unions have a stand-alone interest in the integrity of the hiring process.
An applicant who is in a temporary appointment is a member of the bargaining unit and the Association is his or her exclusive bargaining agent. The Association has an interest in the appointment process to the extent reflected in article 12.01. A bargaining unit member who applied for a new appointment has an interest in seeking to overturn an unfavourable decision. I was not provided with any authority or labour relations principle to support the proposition that a bargaining unit member can be deprived of his or her right to union representation, or that the Association cannot represent him or her. The University's motion regarding this issue is dismissed.
What do you think? Did he get it right?
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