HomeMy WebLinkAboutUnion 13-08-22
IN THE MATTER OF AN ARBITRATION
BETWEEN
FANSHAWE COLLEGE
(the “Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 110
(the “Union”)
RE: UNION GRIEVANCES NOS. 2012 – 0014 and 0110
ARBITRATION BOARD: NORM JESIN,ED SEYMOUR AND CARLA ZABEK
APPEARING FOR THE EMPLOYER: ROBERT J. ATKINSON – COUNSEL
APPEARING FOR THE UNION: LESLEY GILCHRIST – COUNSEL
Hearing was held in London, Ontario on May 22, 2013.
AWARD
The grievances in this case are identical and were both filed by the Union. They allege
essentially that the Employer has violated Article 11.01 F 2 of the collective agreement by
assigning workloads in the fall of 2011, the summer of 2012 and the winter of 2012 “where
violations of Article 11.01.F 2 occurred”. By way of relief the grievances seek an order that
Article 11.01 F 2 “be implemented as published”. In addition the grievance seeks a number of
other remedies as set out below:
- The SWFs for any members affected be amended in accordance with the
collective agreement
- That any outstanding overtime be paid as required.
- That the College cease and desist placing faculty members in a position
where they could exceed 47 hours.
- That the College carefully monitor workloads that have the potential to
exceed 47 hours and put procedures in place to prevent faculty from
exceeding 47 hours.
- And that Fanshawe College provide funding to Local 110 and release time to
members to offer mandatory Article 11 training to all faculty.
The Employer denies that it has violated the agreement as alleged. Furthermore, the
Employer has raised a preliminary objection to the arbitrability of the grievances. The Employer
asserts that the grievances raise claims that could have been grieved by individual teachers. The
Employer therefore submits that the Union is prohibited from grieving these matters on its own
by Article 32.09 of the Agreement. That is the Article which expressly entitles the Union to file
grievances “concerning the interpretation, administration or alleged contravention of the
Agreement”. The Article adds, however, that:
… Such grievance shall not include any matter upon which an employee would
be personally entitled to grieve and the regular grievance procedure for personal
or group grievance shall not be by-passed except where the Union establishes
that the employee has not grieved an unreasonable standard that is patently in
violation of this Agreement and that adversely affects the rights of employees.
This award deals solely with the Employer’s preliminary objection as set out above.
In order to deal with the preliminary objection it is important to understand the
workload provisions, not only as set out in Article 11.01.F 2, but as set out in Article 11
generally. Article 11 is the provision establishing workloads for full time teachers. Article 11.01
B 1 provides that a teacher cannot be assigned more than 44 hours in any week. In addition to
the regular maximum of 44 hours per week, Article 11.01 J 1 allows a teacher to perform a
maximum of three overtime hours per week so that the actual maximum allowable hours,
inclusive of overtime, are 47 per week. Only a small portion of those hours – generally no more
than 18 - are teaching hours. The rest of Article 11 establishes formulas for determining the
number of hours per week attributed to different ancillary tasks. For example, 11.01 D sets out
the formula for determining the number of hours attributed for course preparation. Article
11.01 E does the same for hours attributed for evaluation.
Article 11.01 F 1 attributes four hours per week for routine out of class assistance
provided to students. Article 11.01 F 2 contemplates the possibility of increasing that
attribution where a teacher has more than 260 students in a course load. That article provides
as follows:
11.01 F 2 The attribution of four hours of out-of-class assistance for
students may not be sufficient where a teacher has unusually high numbers of
students in his/her total course load. When a teacher who has more than 260
students in his/her total course load consider that he/she will not have sufficient
time to provide appropriate levels of out-of-class assistance, the teacher will
discuss the issue with his/her supervisor. Possible means of alleviating the
concern should be considered such as additional types of assistance being
provided or additional hours being authorized. Failing agreement on how best to
manage the situation the teacher shall be attributed an additional 0.015 hours
for every student in excess of 260.
Once all the hours for a teacher are compiled and attributed they are noted on a form
called a SWF. The SWF is prepared after a consultation over the compiled hours between the
teacher and his/her supervisor. Once the SWF is prepared, it is up to the teacher to indicate
whether he/she is in agreement with the total workload noted in the SWF. Article 11.02 A 4
provides that absent an indication that the teacher disagrees with the SWF, the teacher is
deemed to be in agreement with the workload set out in the SWF. The remainder of Article
11.02 establishes a detailed procedure to resolve any disagreements over the workload
outlined in the SWF. Essentially, any disagreement is first raised with the teacher’s supervisor. If
the disagreement is not resolved the teacher may refer the matter to the workload
management group or WMG. The WMG is made up of representatives of both the Union and
the Employer. A decision of the majority of the WMG is binding on the teacher, the Employer
and the Union.
It is the position of the Employer that any complaint over workload issues must be
initiated by a teacher under the provisions of this agreement. Specifically, a complaint that an
employee requires extra assistance under Article 11.01 F 2 must first be raised by the employee
with a supervisor. Even upon the registering of a complaint, it is not automatic that additional
hours are to be attributed to the teacher. Rather, the Employer may first offer additional
assistance for the teacher. It is only after a complaint is raised and after it is determined that it
cannot be resolved by agreement between the teacher and the supervisor that any additional
hours are to be attributed to the teacher. Furthermore, the employee has an additional
opportunity to deal with the matter once the SWF is prepared by indicating that he/she is not in
agreement with the workload set out in the SWF. According to Employer counsel the absence
of any complaint or grievance over workload filed by a teacher must be taken as an agreement
with the workload set out in the teacher’s SWF. According to the Employer there is no ability
under the structure of this collective agreement for the Union to file a grievance over workload
arising from Article 11.01 F 2, or any other provision of Article 11.01. Indeed, even an employee
must refer any disagreement to the WMG rather than file a grievance under the grievance
procedure. Furthermore, the Employer asserts that if there was any doubt about this point
Article 32.09 confirms that the Union is not able to file a grievance when an individual is
entitled to grieve.
The Union agrees that no individual could grieve the establishment of workload as
noted in a SWF, either under Article 11.01 F2 or any other provision of Article 11.01. The Union
in this case further agrees that a teacher may only refer a complaint in this regard to the WMG
under Article 11.2. However, the Union asserts that it is entitled to grieve because it is raising a
systemic issue regarding the Employer’s application of Article 11.01 F 2. The Union asserts that
the Employer initiates discussion over out-of-class assistance with some teachers having more
than 260 students but not with all teachers having more than 260 students. As a result, the
Employer is administering the provision in an arbitrary manner to the detriment of some of the
teachers with more than 260 students. Those teachers are therefore denied overtime
opportunities which may be granted to other teachers.
In reply Employer counsel asserted that each case is different. It is not a violation of the
agreement for one supervisor to offer discuss Article 11.01 F 2 with one teacher with extra
students even as another supervisor does not offer such discussion with another teacher
similarly situated. One supervisor may be of the view that a teacher requires some sort of
assistance in one situation whereas another supervisor may not have the same view in another
situation. According to the Employer the fact that some supervisors initiate discussions
regarding assistance does not alter the wording of 11.01 F 2 that it is up to the teacher to
initiate such decisions in order to start the process to determine what assistance if any will be
provided and before any determination may be made to increase the hours assigned to any
teacher.
In their submissions the parties provided me with a number of awards dealing with
Article 32.09 and its effect on the arbitrability of union grievances under this collective
agreement. In George Brown College, unreported, June 8, 1994 (Devlin, St. Onge, Murray), the
majority wrote at p 5, that once it is determined that the subject matter of the grievance could
have been grieved by an individual, the union’s grievance must meet three conditions before it
may proceed. Those conditions are “(1) that the employee has failed to grieve an unreasonable
standard; (2) that the standard is in patent violation of the collective agreement; and (3) that it
adversely affects the rights of employees.” As noted in a number of awards, all three criteria
must be satisfied and the failure to establish any one of the three will result in a finding that the
grievance is inarbitrable.”
This application of Article 32.09 has been followed in a number of other cases provided
by the parties, including those provided by the Union. However, the Union has provided me
with awards demonstrating that in two types of circumstances, a union grievance will be
allowed to proceed even where the grievance could have been filed by an individual. Fanshawe
College, unreported, March 20, 1989 was an award chaired by arbitrator Burkett. In that case
there had been a prior decision in favour of the teacher by a Workload Resolution Arbitrator.
The College was refusing to apply that decision and the Union sought a decision in a policy
grievance ordering the Employer to apply the prior decision to all teachers. The majority in that
case concluded that the prior decision established a “threshold work standard” and that the
Union was entitled to enforce that standard through a policy grievance.
The Fanshawe decision was followed by a majority in Seneca College, unreported, June
5, 1998 (Devlin, Gallivan and Murray). In that case the Union filed a grievance alleging that the
Employer had assigned certain teachers more than the allowable maximum of 47 hours per
week. The Employer asserted that the grievance was inarbitrable as it could have been filed by
any affected teacher. After citing the Fanshawe decision, the majority determined at p. 25 of its
award that the Union must be entitled to enforce threshold standards under the collective
agreement. As a result the majority concluded that the grievance was arbitrable. In a
subsequent decision by the same panel in Seneca College, unreported, October 4, 1999, the
Board again considered a the arbitrability of a Union grievance alleging that the Employer had
assigned teachers more than 47 hours per week. In finding that the grievance could proceed,
the majority expressly referred to the exceptions contained in what is now Article 32.09 and
determined at p. 20 that the assignment of more than 47 hours per week involved “an
unreasonable standard which is patently in violation of the agreement … “.
In reviewing the various provisions at issue it is clear that the assignment to a teacher of
more than 260 students is not, by itself a violation of the collective agreement. Indeed, the
Article specifically contemplates that the normal attribution of hours for assistance may “or
may not” be sufficient where more than 260 students are assigned. Pursuant to the provision it
is up to the teacher to initiate a discussion with the supervisor when and if the teacher
determined that the attributed time for out of class assistance is insufficient. The corollary is of
course that where the teacher is of the view that the attributed time for assistance is indeed
sufficient, then nothing need be done.
Where the teacher does initiate a discussion for further assistance, the supervisor may
propose additional assistance, or the supervisor and teacher will have a discussion on the
number of hours that should be attributed. Again, up to this point, there is no violation of the
agreement.
If the supervisor and the teacher cannot reach agreement on the matter, only then are
additional hours attributed in accordance with the formula set out in the provision.
Furthermore, if the teacher maintains that the hours attributed under the Article are
insufficient in a particular case, it may be open to the teacher to initiate a complaint under the
WMG process. That is the dispute resolution mechanism contained in the collective agreement
for disputes over the correct level of assigned hours. No such disputes were filed in this case.
One can only assume that the teachers in question were ultimately satisfied with the hours
contained on their SWF forms. In any event, we do not see what avenue remains for a Union
grievance in the circumstances of this case.
The awards relied on by the Union do not assist in our view. This is not a case where, it
can be shown that the Employer has ignored a conclusion of the WMG or where is it assigning
employees to an unreasonable standard. Where such circumstances may be established our
conclusion might be different. But in this case the Union appears to be seeking a routine
attribution of hours under the formula set out in Article 11.01 F 2. That is not what the
provision calls for and in any event it is up to the employee to seek that attribution under the
collective agreement.
We acknowledge that in appropriate circumstances in may be open for the Union to
pursue a claim that the Employer is administering Article 11.01 F 2 (or any other article for that
matter) in a manner that is arbitrary, discriminatory or in bad faith. However, that was not a
claim made in the original grievances. In essence the grievances raise matters which could have
been raised by employees under the alternate procedures available to them under Article 11.01
F 2 specifically and Article 11.02 generally.
For these reasons, we have determined that the grievances are inarbitrable and are
therefore dismissed.
Dated at Toronto, this 22nd day of August, 2013
N J
Norm Jesin, Chair
I dissent: (dissent attached)
______________________________
Ed Seymour, Union Nominee
I concur
______________________________
Carla Zabek, Employer Nominee