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HomeMy WebLinkAboutSt. Gelais Group 14-08-06 (Eng.) IN THE MATTER OF AN ARBITRATION BETWEEN: LA CITÉ COLLÉGIALE -the employer [La Cité] - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 470 -the Union [OPSEU] Group Grievance Concerning Program Review - Preliminary objection Before: Kathleen G. O'Neil, Sole Arbitrator For the Union: Benjamin Piper, Counsel Benoit Dupuis, President, Local 470 Pierre St-Gelais, Grievance Officer For the employer: André Champagne, Counsel Pascal Bessette, Executive Director, Human Resources Management and Organizational Development Caroline Viola, Assistant Director, Human Resources & Organizational Development This is the English translation of the original decision rendered in French, which was the language of the hearing. Hearing in Ottawa, March 25, 2014 1 Award This decision deals with a preliminary objection raised by the employer, to the effect that the grievance before me is inarbitrable because the expedited process for resolution of workload complaints was not used. For its part, the Union invites the conclusion that the grievance should not be dismissed for procedural reasons and that I have jurisdiction to hear it or refer it to a W orkload Resolution Arbitrator. The facts The parties agreed to the following salient facts: 1. In October 2011, La Cité commissioned the V.P. - Teaching to carry out a full review of teaching programs. 2. The program review process necessitated the participation of faculty in order to obtain their feedback. 3. During the autumn of 2012 as well as during the 2013 winter semester, the members of the bargaining unit were asked to participate in the program review exercise in four discussion meetings, one taking place in a non-teaching period; 4. The said members of the bargaining unit were each given a Standard Workload Form [SW F] on or before April 20, 2012, for the fall 2012 semester, a SWF which should have reflected all their tasks pursuant to the meaning of the collective agreement; 5. The said members of the bargaining unit were each given a Standard W orkload Form [SWF] on or before November 20, 2012, for the 2013 winter semester, a SWF which should have reflected all their tasks pursuant to the meaning of the collective agreement; 6. During the meetings of the W orkload Monitoring Group in December 2012 and January, March and May 2013, there were discussions about time attributed for the program review meetings. [Excerpts from the minutes of the Workload Monitoring Group filed in evidence are omitted here in the interests of brevity.] 7. On April 19, 2013, OPSEU – Academic filed a group grievance entitled Program Review under article 32.08 of the collective agreement; 8. The grievance alleges, inter alia, that “the college, by its actions, forces and requires us to perform work for program review, work not recognised or accounted for on our workload form even if the latter was anticipated at the time of the discussions”; 9. OPSEU claims as remedy that the College grant 4 additional paid vacation days to members of the full time academic staff employees named in the statement of grievance; 2 10. On May 31, 2013, Mr. Pascal Bessette sent La Cité’s position to the signatories of the grievance and to Local 470, OPSEU. [The registered letter in evidence is omitted]; 11. In that letter, Mr. Bessette raised two preliminary objections to the arbitrability of the grievance and the Board’s jurisdiction, i.e. relating to the procedure set out in articles 11 and 32 as well as timeliness. Positions of the parties The employer underlines that the issue in the grievance filed is unequivocally linked to workload and the SW F. The main objection is that section 11 of the collective agreement provides a complete procedure with regard to workload. According to that article, to be valid, a complaint must be made by a teacher, following the procedure described in arti cle 11 rather than section 32. To allow the Union to continue this group grievance under article 32 would bypass the process of article 11, according to the employer. The latter is of the view that, under the collective agreement, only the process described in article 11 is appropriate in the case of objections to the workload of an individual professor or professors. The employer points out that Article 11 provides for the participation of the Local union in the Workload Monitoring Group, but it is still centred on a professor or professors and their individual circumstances. Counsel for the employer also mentions the principle of interpretation of contracts to the effect that a specific provision should outweigh a general provision. In this context, the special scheme set out in Article 11 should prevail over the general procedure set out in Article 32. And, according to article 32.03 D, an arbitrator has no authority to change, modify or amend the provisions of the collective agreement, as noted by the Court of Appeal in George Brown College of Applied Arts and Technology v. Ontario Public Service Employees Union , [2003] O.J. No. 4757, 68 O.R. (3d) 161. For his part, counsel for the Union stresses that this is not a Union grievance. It is a group grievance filed by a group of 91 individuals, who all signed the grievance. It is in Article 32.08 that the collective agreement clearly describes a group grievance and it is professors, not labour lawyers, who chose that process, as the one set out in the collective agreement for those wanting to file a group rather than an individual grievance. The Union also notes that the employer never suggested before the hearing that a group grievance could be filed under article 11. 3 In response to the employer’s argument that Article 11 is a complete code regarding workload, Union counsel submits that the article itself states, in Article 11.02 A 6 B, that any other topic related to workload, except those concerning articles 11.01, 11.02, or 11.09, must be processed in accordance with the general procedure set out in Article 32. According to the Union, Article 11 is therefore not a complete code with respect to workload. In addition, in specifying the grievances that must follow the process set out in section 32, the article does not exclude grievances related to Articles 11.01, 11.02 or 11.09 from the procedure under Article 32. And even if Article 11.02 F11 makes reference to the possibility of a complaint to the Workload Monitoring Group or a workload arbitrator by more than one teacher, it does not say how to file a group workload complaint. As for the procedure described in article 32.08, the Union stresses that the parties intended to adopt a clear path for grievances relating to more than one employee , which seemed the best route for the grievance here in question which contests the process flowing from the program review. In the Union’s view, it is important that Article 32.08 includes no provision limiting or excluding the workload-related grievances. It points out that the judgment of the Ontario Court of Appeal in George Brown College, cited above, is distinguishable on the facts. The facts dealt with in that decision were that the Union filed a grievance under Article 11, as opposed to the facts of the instant case, where individual teachers have filed a group grievance, as provided in Article 32.08. Counsel for the union argued, in the alternative, that if Article 11 is found to be the correct way forward, and in the interests of clarity, the irregularity should be remedied and the grievance forwarded to a Workload Resolution Arbitrator, in order to resolve the true issue between the parties, following the advice of the Court of Appeal in Re Blouin Drywall Contractors Ltd. United Brotherhood of Carpenters and Joiners of America and, Local 2486 (1975), 57 DLR (3d) 199 (Ont. CA). The union is of the view that if there is an error here, it is merely procedural and there is no reason to believe that the error is intentional. This is exactly the type of error that should be remedied, according to the union. Counsel cites several awards in which arbitrators have remedied technical defects: Re Canadian Broadcasting Corp. and National Association of Broadcast Employees and Technicians, 4 L.A.C. (2d) 263 (Shime) DayBar Industries Ltd. and USWA Local 9042 (2012), 233 L.A.C. (4th) 126 (Knopf); Re McLaren Forest Products Inc., Babine Division and United Steelworkers, Local 898 , (1983), 11 LAC (3d) 21 (Hope); and Timberjack, Inc. and Glass, Molders, Pottery, Plastics and Allied Workers Union, Loc. 446 (Re), (1996), 62 L.A.C. (4th) 438 (Brandt). 4 For example, in the Timberjack award, Arbitrator Brandt authorized the continuation of a grievance even though the employer had made a mistake in the name of the union. Similarly, in DayBar, the arbitrator allowed the union to pursue an issue at arbitration which was not specified in detail in the grievance because the whole issue had been discussed during the grievance procedure. The arbitrator concluded that there would be no substantial injustice if a hearing on the full range of issues raised by the union were allowed. Counsel for the union points out that the subject of this grievance was discussed before the Workload Monitoring Group, as evidenced by the minutes of the meetings in evidence. The un ion has no intention of modifying or enlarging the substance of the grievance and the employer is already familiar with the arguments. Similarly, in the McLaren award, the arbitrator allowed the union to pursue the general topic of the assignment of tasks to managers even though the grievance was an individual one dealing with only one example. Employer counsel replies maintaining that, as an arbitrator appointed under the procedure set out in Article 32, I do not have the mandate to send the matter to a Workload Resolution Arbitrator under Article 11, because I lack the jurisdiction to do anything at all with it. In the employer’s view, it is not a matter of the union’s intention, or prejudice to the employer, but a question of jurisdiction. Counsel for the employer submits that the signatories of the grievance declined the forum envisaged by the collective agreement that goes by way of the Workload Monitoring Group, and then to a Workload Resolution Arbitrator. Collective Agreement Provisions The relevant provisions of the collective agreement, including article 6, Management Functions, and excerpts from article 11 - Workload, and of Article 32 - Grievance Procedure are attached as an appendix to this decision. Considerations and Conclusions Firstly, regarding the structure of the collective agreement, it is clear that the parties intended to create two pathways for the handling of grievances. First, for grievances related to the provisions dealing in detail with professors’ Standard Workload Form (SWF), i.e. disputes concerning articles 11.01, 11.02 or 11.09, the parties provided the very expedited system in Article 11. On the other hand, for all other subjects of complaint, including the topics referred to 5 in the remainder of Article 11, i.e. Articles 11.03 to 11.08, which contain more general provisions related to workload, pursuant to Articles 11.02 A 6 (b) and 32.02, grievaces are filed under the procedure set out in Article 32. Given this separation of routes for processing grievances, the first question to arise is the following: is the grievance before me a "dispute arising from the interpretation, application or administration of Articles 11.01, 11.02 or 11.09?”. If it is, according to the wording of Article 11.02 A 6 (a), it appears that the mechanism described there should be used rather than the one found in Article 32. However, the grievance does not mention Article 11 nor does it allege that the employer has violated it. There is instead a reference to article 6, “Management Functions”, and the assertion that the employer did not exercise its functions in accordance with the provisions of the collective agreement. In addition, the remedy sought in the grievance itself is not the attribution of additional time on the SWF’s of the members of the group, nor another remedy related to workload, but rather that the College provide 4 additional days of paid vacation to the full-time academic employees set out in the statement of grievance. Nevertheless, it is clear in the statement of grievance that the section of the collective agreement with which the exercise of management functions is inconsistent, according to the group, is the one which deals with the recognition of the work of professors and its calculation on the SWF. This question is at the heart of Article 11. The Union did not actually seek to distance itself from Article 11 in the arguments put forward at the hearing, and the agreed statement of facts - including paragraphs 8 and 9 above - make that clear, beyond any doubt. The substance of the grievance in question is indeed workload. However, it is also true, as noted by counsel for the union, that Article 32 does not preclude grievances concerning workload. It is silent on this subject. Therefore, the second question to ask is this: given the generality of Article 32, which specifically includes group grievances, is it acceptable under this collective agreement for employees to opt for the route described in section 32.08 as a process parallel to that of Article 11? After consideration of the wording and structure of the collective agreement, I am convinced that the answer must be no. I am of the view that Article 11.02 A 6 (a) states quite clearly that a complaint should be treated as described in Articles 11.02 and 11.02 F B, which differs greatly from the procedure in Article 32 . Article 11.02 A 6 (a) begins with these words: “In the event of any difference arising from the interpretation, application, administration or alleged contravention of 11.01, 11.02, or 11.09," and continues by mandating a discussion between the teacher and his or her immediate 6 supervisor to allow for a settlement. The article continues: “Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the WMG [Workload Monitoring Group]”. The complaint shall then follow the procedure outlined in 11.02 B through11.02 F, which provides for its resolution in a very short period of time, by a Workload Resolution Arbitrator. Although Article 32.08 does not explicitly exclude complaints concerning individual workloads, I find, given that Article 11.02 A 6 (a) says, in very directive language, that one must follow the process described in Article 11, that the intention of the parties is that the other process is not to be used. Article 11 clearly provides for a complaint resolution process that is flexible, rapid, and without prejudice. To allow complaints under Articles 11.01, 11.02 and / or 11.09 to be resolved under the longer procedure set out in Article 32 would undermine this intention explicitly expressed in Article 11. Also, even If Article 11.02 A 6 (b) does not specifically say that one may not have recourse to the process set out in Article 32, it indicates fairly clearly that only g rievances other than those related to Articles 11.01, 11.02 or 11.09 belong in the procedure described in Article 32. This is even more apparent when one reads this article in light of the wording of Article 11.02 A 6 (a) which immediately precedes it, which provides that a complaint relating to Articles 11.01 and 11.02 must be dealt with according to the procedure described in Articles 11.02 B to 11.02 F. The grievance before me squarely relates to Articles 11.01 and 11.02, and therefore, it is excluded from the grievances which the parties wished to be dealt with under Article 32. Both counsel made arguments concerning the decision in George Brown College, cited above. In that judgment, the Court found that by accepting a union grievance that had not been provided for in Article 11, the arbitrator made a decision inconsistent with the collective agreement or had rewritten the relevant terms, in violation of Article 32.03 D. I note that the issue in dispute was different from the one of which I am seized, and the Court did not rule on the precise issue before me. The George Brown College case dealt with a union grievance rather than a group grievance, and the route chosen was that of Article 11. The decision of the Court concluded that the union did not have the right to launch a grievance under Article 11 and, therefore, had no access to the expedited complaint resolution process chaired by a Workload Resolution Arbitrator. But, even if the facts and the issue are different, the decision is relevant in the sense that the Court made clear that the scheme provided by the parties in their collective agreement, which includes these two distinct routes for the resolution of grievances, must be respected. 7 Counsel for the union submitted that, if I was of the opinion that the complaint fell within the arbitration process described in Article 11, it should be referred there, rather than rdismissed. He cites, in support of this argument, the well-known decision of the Court of Appeal in Blouin Drywall, and the arbitral awards that have applied it, including DayBar, MacLaren, and Timberjack, cited above. In Blouin Drywall, the Court of Appeal encouraged arbitrators to give grievances a liberal interpretation in order to address the real dispute between the parties, warning against an overly technical approach. I readily accept these directives, but the truth is that, even giving the complaint before me the most liberal possible interpretation, it is still a complaint relating to Articles 11.01 and 11.02 which the collective agreement specifies should be dealt with under Article 11 and resolved by a Workload Resolution Arbitrator after review by the Workload Monitoring Group. Although I have heard workload complaints from time to time, I am not appointed in that role for this grievance, and the union did not suggest otherwise. It is clear that this is a grievance filed under section 32.08, and not Article 11 , with the compulsory stage of review by the Workload Monitoring Group and the expedited and informal process of grievance resolution by a Workload Resolution Arbitrator. For the reasons I have just given, I am of the view that the grievance is inarbitrable under the procedure set out in Article 32. If, as an arbitrator appointed under section 32, I do not have the mandate, in accordance with this agreement, to receive a grievance, I agree with the employer's position to the effect that I do not have the power to deal with it, even to refer it to a Workload Resolution Arbitrator. In the interests of the clarity desired by the Union in this case, I note that the employer argued that if the grievance had been filed under Article 11, “we would not be here", i.e. in the present situation dealing with the preliminary objection raised by the employer. I am of the view that Article 11 provides that a group of professors may submit a complaint to the Workload Monitoring Group or to a Workload Resolution Arbitrator, b ecause Article 11.02 F 11 mentions explicitly that when a complaint is made to the Workload Monitoring Group or to the Workload Resolution Arbitrator by more than one teacher, references in the article to "teacher" shall be read as "teachers". Nonetheless, Article 11.02 A 6 (a) provides for a discussion with the immediate supervisor at the outset of the process, followed by the process, albeit referring to teachers in the plural, described in Articles 11.02 B through F. 8 For these reasons, I have concluded that I must dismiss the grievance and declare it inarbitrable under the process set out in Article 32 of the collective agreement because it is a grievance related to Articles 11.01 and 11.02. Dated at Toronto this 6th day of August, 2014. ________________________________ Kathleen G. O’Neil Single Arbitrator 9 Appendix 'A '. Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: (i) maintain order, discipline and efficiency; (ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement; (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. … Article 11 WORKLOAD 11.01 A Each teacher shall have a workload that adheres to the provisions of this Article. 11.01 B 1 Total workload assigned and attributed by the College to a teacher shall not exceed 44 hours in any week for up to 36 weeks in which there are teaching contact hours for teachers in post-secondary programs and for up to 38 weeks in which there are teaching contact hours in the case of teachers not in post -secondary programs. The balance of the academic year shall be reserved for complementary functions and professional development. Workload factors to be considered are: (i) teaching contact hours (ii) attributed hours for preparation (iii) attributed hours for evaluation and feedback (iv) attributed hours for complementary functions [the details of the workload formula set out in Articles 11.01 B2 to 11.01 M are omitted] 10 11.02 A 1 (a) Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload with the teacher and complete the SWF, attached as Appendix I, to be provided by the College. The supervisor shall give a copy to the teacher not later than six weeks prior to the beginning of the period covered by the timetable excluding holidays and vacations. It is recognized that if the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher. (b) The College may, where a change in circumstances requires it, amend assignments provided to a teacher after the original assignment, subject to the teacher's right to refer any matter to the College Workload Monitoring Group (WMG) referred to in 11.02 B 1 and if necessary, the Workload Resolution Arbitrator (WRA) referred to in 11.02 E 1 and appointed under 11.02 F 1. 11.02 A 2 The SWF shall include all details of the total workload including teaching contact hours, accumulated contact days, accumulated teaching co ntact hours, number of sections, type and number of preparations, type of evaluation/feedback required by the curriculum, class size, attributed hours, contact days, language of instruction and complementary functions. (18) 11.02 A 3 Following receipt of the SWF, the teacher shall indicate in writing on the SWF whether in agreement with the total workload. If not in agreement the teacher and the supervisor may add such other comments as is considered appropriate and may indicate in writing that the workload should be reviewed by the College WMG. 11.02 A 4 In the event that the teacher is not in agreement with the total workload and wishes it to be reviewed by the WMG, the teacher must so indicate in writing to the supervisor within five working days following the date of receipt of the SWF. The completed SWF will be forwarded by the supervisor to the WMG within three working days from date of receipt from the teacher with a copy to be given to the teacher. Absent such indication, the teacher shall be considered to be in agreement with the total workload. 11.02 A 5 The timetable shall set out the schedule and location of assigned workload hours reported on the SWF, on a Timetable Form to be provided by the College, and a copy shall be given to the teacher no less than two weeks prior to the beginning of the period covered by the timetable, which shall be the same period as that covered by the SWF. 11.02 A 6 (a) In the event of any difference arising from the interpretation, application, administration or alleged contravention of 11.01, 11.02, or 11.09, a teacher shall discuss such difference as a complaint with the teacher's immediate supervisor. The discussion shall take place within 14 days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the teacher in order to give the immediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the teacher and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the teacher. Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the WMG within seven days of receipt of the immediate supervisor's reply. The complaint shall then follow the procedures outlined in 11.02 B through 11 11.02 F. (b) Grievances arising with respect to Article 11, Workload, other than 11.01, 11.02 and 11.09 shall be handled in accordance with the grievance procedure set out in Art icle 32, Grievance and Arbitration Procedures. 11.02 B 1 There shall be a College WMG at each College. 11.02 B 2 Each WMG will be composed of eight members, with four to be appointed by the College and four appointed by the Union Local unless the College and the Union Local otherwise agree. The term of office of each member of the WMG shall be two years, commencing on April 1 in each year with four members of the WMG, two (19) College appointees and two Union appointees, retiring on March 31 of each year. A quorum shall be comprised of four, six or eight members with equal representation from the College and Union Local. Alternative arrangements may be made at the local level upon agreement of the Union Local and the College. 11.02 C 1 The functions of the WMG shall include: (i) reviewing workload assignments in general at the College and resolving apparent inequitable assignments; (ii) reviewing specific disputes pursuant to 11.02 A 4 and/or 11.02 A 6 (a) and where possible resolving such disputes; (iii) making recommendations to the College on the operation of workload assignments at the College; (iv) reviewing individual workload assignments where requested by the teacher or the Union Local and, where possible, resolving the disputes; (v) making recommendations to the College and Union Local committees appointed under Article 7, Union/College Committee (Local), as to amendments or additions to the provisions governing workload assignments at the College for local negotiation in accordance with 11.02 G in order to address particular workload needs at the College. 11.02 C 2 The WMG shall in its consideration have reg ard to such variables affecting ssignments as: (i) nature of subjects to be taught, including type of program (e.g. apprenticeship, certificate, diploma, advanced diploma, degree); (ii) level of teaching and experience of the teacher and availability of technical support and other resource assistance; (iii) size and amenity of classroom, laboratory or other teaching/learning facility; (iv) numbers of students in class; (v) instructional modes, including requirements for alternate delivery; (vi) availability of time for the teacher's professional development; (vii) previously assigned schedules; (viii) lead time for preparation of new and/or changed schedules; (ix) availability of current curriculum;(20) (x) students with special needs; (xi) introduction of new technology; (xii) the timetabling of workload, including changes to the length of the course; 12 (xiii) level of complexity and rate of change in curriculum; (xiv) requirements for applied research; (xv) required translation of materials. 11.02 D 1 The WMG shall meet where feasible within one week of receipt of a workload complaint or at the request of any member of the WMG. 11.02 D 2 The WMG shall have access to all completed SWFs and timetables, and such other relevant workload data as it requires to review workload complaints at the College. 11.02 D 3 The WMG or any member of it may require the presence of the supervisor and/or the teacher before it to assist it in carrying out its responsibilities. 11.02 D 4 Any decision made by a majority of the WMG with respect to an individual workload assignment shall be in writing and shall be communicated by the College to the teacher, the supervisor, the senior academic officer at the College and the Union Local President as soon as possible after the decision is arrived at. 11.02 D 5 Such decision shall be binding on the College, the Union Local and the teacher involved. 11.02 E 1 If following a review by the WMG of an individual workload assignment which has been forwarded to the WMG, the matter is not re solved, the teacher shall be so advised in writing. The matter may then be referred by the teacher to a WRA provided under the agreement. Failing notification by the WMG within three weeks of the referral of the workload assignment to the WMG, the teacher may refer the matter to the WRA. 11.02 E 2 If the teacher does not refer an assignment to the WRA within one week of the receipt by the teacher of notification by the WMG that it has been unable to settle the matter, the matter will be considered to have been settled. 11.02 F 1 One or more WRAs shall be jointly selected by the College President or the President’s designee and the Union Local President. The appointment of a WRA shall be from July 1 until June 30 of the following year unless both parties otherwise agree in writing. A WRA shall act on a rotation basis or as otherwise agreed. 11.02 F 2 A WRA shall indicate to the College President or the President’s designee and the Union Local President, in writing, willingness to act within the time frames specified in this Article. 11.02 F 3 In the event that the College President or the President’s designee and the Union Local President are unable to agree upon the a ppointment of a WRA, either the College or the Union Local may request the Minister of Labour to appoint a WRA and the WRA shall, upon appointment by the Minister of Labour, have the same powers as if the appointment had been made by the College and the Union Local as provided herein. 11.02 F 4 The College and the Union Local will provide to a WRA the SWF and any other documents which were considered by the WMG in its deliberations and such other information as the WRA considers relevant. 13 11.02 F 5 A WRA shall determine appropriate procedure. The WRA shall commence proceedings within two weeks of the referral of the matter to the WRA. It is understood that the procedure shall be informal, that the WRA shall discuss the matter with the teacher, the teacher's supervisor, and whomever else the WRA considers appropriate. 11.02 F 6 A WRA shall, following the informal discussions referred to above, issue a written award to the College and the Union Local and to the teacher, resolving the matter. Such award shall be issued by the WRA within ten working days of the informal discussion. The award shall only have application to the teacher affected by the matter and shall have no application beyond the end of a twelve-month period from the date of the beginning of the workload assignment. 11.02 F 7 On request of either or both parties within five working days of such award, the WRA shall provide a brief explanation of the reasons for the decision. 11.02 F 8 The award of the WRA shall be final and binding on the parties and the teacher, and shall have the same force and effect as a Board of Arbitration under Article 32, Grievance and Arbitration Procedures. 11.02 F 9 Having regard to the procedures set out herein for the resolution of disputes arising under 11.01, 11.02, or 11.09, no decision of the WMG or award of the WRA is subject to grievance or any other proceeding. 11.02 F 10 The Colleges and the Union shall each pay one -half of the remuneration and expenses of a WRA. 11.02 F 11 Where a referral is made to the WMG or the WRA by more than one teacher, references in the article to "teacher" shall be read as "teachers". 11.02 F 12 References to "teacher" in this Article include "instructor" but do not include partial load teachers. 11.02 G It is recognized that speedy resolution of workload disputes is advantageous to all concerned. Therefore, the College and Union Local committees appointed under Article 7, Union/College Committee (Local), have the authority to agree to the local application of Article 11, Workload, and such agreement may be signed by them and apply for the specific term of this Agreement as currently in effect. Also, such agreement shall not serve as a precedent for the future at that or any other College. Such agreement is subject to ratification by the Union Local membership within ten days and is subject to approval by the College President. 11.03 The academic year shall be ten months in duration and shall, to the extent it be feasible in the several Colleges to do so, be from September 1 to the following June 30. The academic year shall in any event permit year-round operation and where a College determines the needs of any program otherwise, then the scheduling of a teacher in one or both of the months of July and August shall be on a consent or rotational basis. 11.04 A The assigned hours of work for Librarians and Counsellors shall be 35 hours per week. 11.04 B 1 The College shall allow each Counsellor and Librarian at least ten workin g days of professional development in each academic year. 14 11.04 B 2 Unless otherwise agreed between the Counsellor or Librarian and the supervisor, the allowance of ten days shall include one period of at least five consecutive working days for professional development. 11.04 B 3 The arrangements for such professional development shall be made following discussion between the supervisor and the Counsellor or Librarian subject to agreement between the supervisor and the Counsellor or Librarian, and such agreement shall not be unreasonably withheld. 11.04 B 4 The employee may be reimbursed for costs associated with such professional development, as approved by his/her supervisor or other body established by the College to deal with allocating resources made available for this purpose. 11.04 C Where Counsellors and Librarians are assigned teaching responsibilities the Colleges will take into consideration appropriate preparation and evaluation factors when assigning the Counsellors' and Librarians' workload. 11.05 The parties agree that no College shall circumvent the provision of this Article by arranging for unreasonable teaching loads on the part of persons who are excluded from or not included in the academic bargaining unit. 11.06 During the period of assigned workload, teachers shall not take any employment, consulting or teaching activity outside the College except with the prior written consent of the supervisor. The consent of the supervisor shall not be unreasonably withheld. 11.07 Where the College requires the performance of work beyond the limits herein established, the College shall provide any such teachers with proper work facilities during such period. 11.08 In keeping with the professional responsibility of the teacher, non -teaching periods are used for activities initiated by the teacher and by the College as part of the parties' mutual commitment to professionalism, the quality of education and professional development. Such activities will be undertaken by mutual consent and agreem ent will not be unreasonably withheld. No SWF will be issued but such activities may be documented. Where mutually agreed activities can be appropriately performed outside the College, scheduling shall be at the discretion of the teacher, subject to the requirement to meet appropriate deadlines. Modified Workload Arrangements 11.09 A 1 In order to meet the delivery needs of specific courses or programs, Modified Workload Arrangements may be agreed on instead of the workload arrangements specified in Articles 11.01 B 1, 11.01 C, 11.01 D 1 through 11.01 F, 11.01 G 2, 11.01 I, 11.01 J, 11.01 L, 11.01 M, 11.02 A 1 (a), 11.02 A 2, 11.02 A 3, 11.02 A 4, 11.02 A 5 and 11.08. A Modified Workload Arrangement requires the consent of the teacher(s) involved and the consent of the Local Union. 11.09 A 2 In order for a Modified Workload Arrangement to be implemented, at least two thirds (2/3) of the teachers involved and their manager must agree. Teachers not in agreement must be given the option of having the regular provisions of Article 11 apply to their workload assignment. 15 11.09 A 3 No more than 20% of the full-time teachers at a College may be participating in Modified Workload Arrangements at the same time. 11.09 A 4 The Modified Workload Arrangement may apply for any period of assignment, but shall not extend beyond one academic year, unless expressly renewed. Each Modified Workload Arrangement will have a start and end date. Should the Modified Workload Arrangement extend beyond the life of the Collective Agreement, the terms shall be modified to respect any applicable changes contained within the amended Collective Agreement. Workload Limit Protections 11.09 A 5 For clarity, the workload limits contained in 11.01 K 1, 11.01 K 2 and 11.01 K 3 shall apply to Modified Workload Arrangements established under Article 11.09. If the Modified Workload Arrangement extends beyond an academic year, the limits of 11.01 K will be cumulative over the length of the Plan and 11.01 K 4 will not be applied unless the cumulative limits are exceeded. 11.09 A 6 The Modified Workload Arrangement shall document the details of the proposed workload assignments and schedules and shall be provided to the teachers and to the Local Union. It shall specify what provisions of Article 11 will not apply to the Modified Workload Arrangement, the start and end dates, the total teaching contact hours, and total contact days assigned to each teacher during the period. If the Local Union does not indicate in writing within five (5) days of the receipt of the documentation that it does not consent to the Modified Workload Arrangement, the Union will be considered to be in consent. 11.09 A 7 If the Union does not consent, the parties will meet within three (3) days to discuss the matter. Failing resolution, the College may refer the matter directly to a WRA within seven (7) days of the discussion. 11.09 B 1 The WRA shall commence to hear the matter within seven (7) days of the referral of the matter and will issue a decision within three (3) days of the hearing. The Union will be a party at such a hearing. 11.09 B 2 The provisions of Article 11.02 F shall apply except as modified herein. 11.09 B 3 In determining whether the Union’s refusal to consent to the Modified Workload Arrangement should be upheld the WRA may consider any one or more of the following factors along with any other factor the WRA deems appropriate. - whether it enhances or diminishes the quality of learning for students. - whether it may lead to improvemen ts in teaching and learning. - whether it leads to a reduction in the use of part-time staff and better usage of full-time teachers. - whether it distributes work equitably amongst participating teachers. - whether it may lead to greater satisfaction with workload assignments than the regular workload formula. - whether it would be an efficient workload assignment process. 11.09 B 4 If the WRA concludes the Union should have consented to the Modified Workload Arrangement the Modified Workload Arrangement may be implemented. 16 … Article 32 GRIEVANCE AND ARBITRATION PROCEDURES Grievance Procedure Complaints 32.01 It is the mutual desire of the parties that complaints of employees be adjusted as quickly as possible and it is understood that if an employee has a complaint, the employee shall discuss it with the employee's immediate supervisor within 20 days after the circumstances giving rise to the complaint have occurred or have come or ought reasonably to have come to the attention of the employee in order to give the immediate supervisor an opportunity of adjusting the complaint. The discussion shall be between the employee and the immediate supervisor unless mutually agreed to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven days after discussion with the employee. Grievances 32.02 Failing settlement of a complaint, it shall be taken up as a grievance (if it falls within the definition under 32.11 C) in the following manner and sequence provided it is presented within seven days of the immediate supervisor's reply to the complaint. Grievance Meeting An employee shall present a signed grievance in writing to the College President or his/her designee setting forth the nature of the grieva nce, the surrounding circumstances and the remedy sought. The College President or his/her designee shall arrange a meeting within 15 days of the receipt of the grievance at which the employee, a Union Steward, and an additional representative designated by the Union Local shall be present if requested by the employee, the Union Local or the College. The College President or his/her designee may have such persons or counsel attend as the College President or his/her designee deems necessary. Response The College President or his/her designee shall give the grievor and a Union Steward designated by the Union Local a decision in writing containing reasons supporting the decision within 15 days following the Grievance Meeting. Arbitration Procedure 32.03 A Referral to Arbitration In the event that any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing Grievance Procedure, the matter shall then be referred to arbitration, by notice in writing given to the College President or his/her designee within 15 days of the date of receipt by the grievor of the decision of the College official. 32.03 B [list of arbitrators - omitted] 17 32.03 C No person shall be appointed as an arbitrator who is or was within six months prior to such appointment an employee or is or has within six months prior to such appointment, acted as solicitor, counsel, advisor, agent or representative of either of the parties or the College concerned. Any Chair who declines to act on five consecutive occasions shall be removed from the panel and a replacement selected by mutual agreement of the parties. 32.03 D The finding of an arbitration (or the majority of the arbitration board) as to the facts and as to the interpretation, application, administration or alleged contravention of the provisions of this Agreement shall be final and binding upon all parties concerned, including the employee(s) and the College. An arbitrator/arbitration board shall send the decision to the Council and OPSEU Head Office at the same time it is released to the parties. 32.03 E The arbitrator/arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith; nor to deal with any matter that is not a proper matter for grievance under this Agreement. Section 14 (16) of the Colleges Collective Bargaining Act, 2008 shall not apply. 32.03 F [omitted] General 32.04 A If the grievor fails to act within the time limits set out under the Grievance Procedure or Arbitration Procedure, the grievance will be considered abandoned. 32.04 B If a designated College official fails to reply to a grievance within the time limits set out, the grievor may process the grievance to the next stage. 32.04 C The time limits at any stage may be extended by mutual agreement. 32.04 D The time limits set out under the Grievance Procedure or Arbitration Procedure shall be calculated by excluding the period from Christmas Day to New Year's Day inclusive. 32.04 E At a meeting under the Grievance Procedure, the employee may be represented by a Union Steward if the employee desires such assistance. 32.04 F The arbitrator/arbitration board may dispose of a grievance without further notice to any person who is notified of the hearing and fails to appear. 32.04 G Where the arbitrator/arbitration board determines that a disciplinary penalty or discharge is excessive, it may substitute su ch other penalty for the discipline or discharge as it considers just and reasonable in all the circumstances. 32.04 H It is understood that nothing contained in this Article shall prevent an employee from presenting personally a grievance up to and inclu ding a hearing by the arbitrator/arbitration board without reference to any other person. However, a Union Steward may be present as an observer, at any stage of the process, if the steward so requests. 32.04 I The College and the Union Local shall each keep the other advised in writing of the names of its respective representatives authorized to act on its behalf under the Grievance Procedures. 18 Dismissal 32.05 - 32.07 [omitted] Group Grievance 32.08 In the event that more than one employee is directly affected by one specific incident and such employees would be entitled to grieve, a group grievance shall be presented in writing by the Union signed by such employees to the College President or his/her designee within 20 days following the occurrence or origination of the circumstances giving rise to the grievance commencing at the Grievance Meeting stage. Two grievors of the group shall be entitled to be present at the Grievance Meeting stage unless otherwise mut ually agreed. Union Grievance 32.09 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. 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. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Union Local President to the Director of Human Resources or as designated by the College, within 40 days from the occurrence or origination of the circumstances giving rise to the grievance commencing at the Grievance Meeting stage of the Grievance Procedure detailed in 32.02. College Grievance 32.10 [omitted] Definitions 32.11 A "Day" means a calendar day. 32.11 B "Union" means the Ontario Public Service Employees Union. 32.11 C "Grievance" means a complaint in writing a rising from the interpretation, application, administration or alleged contravention of this Agreement.