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HomeMy WebLinkAboutUnion 15-05-25 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT, 2008, S.0. 2008, CHAP. 15; BETWEEN: Seneca College of Applied Arts and Technology (the “College”) -and- Ontario Public Service Employees Union, Local 560 (the “Union”) (Union Grievance re: clinical supervisors in nursing programs) BEFORE: Christine Schmidt, Sole Arbitrator APPEARANCES For the College: Timothy P. Liznick, Counsel Maria May, Chair, School of Health Sciences Maureen Huckins, Human Resources Consultant Tina DiSimone, Dean, School of Applied Arts and Health Sciences For the Union: Arhana Mathew, OPSEU Grievance Officer April Dymond, OPSEU Grievance Officer Johnathan Singer, Local President Frank Yee, Vice-President 1st Beth Agnew, Vice- President, Equity This hearing was held in Markham on May 4, 2015. 2 AWARD 1. I was appointed to hear a Union grievance filed on August 22, 2014 alleging that the College has violated the academic collective agreement by failing to recognize clinical supervisors in the nursing programs as employees falling within the bargaining unit contrary to the provisions of the Colleges Collective Bargaining Act. What is at stake in this grievance is whether clinical supervisors properly fall within the academic or the support staff bargaining unit at the College. 2. In the grievance the Union seeks a declaration that the delivery of all practicum “courses” in the College’s nursing programs be recognized as “teaching” and that the employees assigned the duties in what had previously been independent practicum courses – who it says are now called clinical supervisors - be paid as teachers and be given workloads appropriate to their classification in accordance with the academic collective agreement. At the hearing, the Union also requested that it be compensated for all lost dues. 3. The College raises a preliminary objection as to the arbitrability of the grievance. This award concerns that objection. The parties presented submissions on the jurisdictional issue and sought a ruling before any evidence was presented. 4. The College argues that I have no jurisdiction to entertain the grievance and it directs me to article 32.09 of the collective agreement: Union Grievance 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 collective 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 a n unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees. 3 5. At the outset of its submissions, the Union conceded that this grievance is a matter about which an employee would personally be entitled to grieve. Any of the approximately 20 clinical supervisors allegedly improperly classified could have grieved. However, the Union seeks to by-pass the personal or group grievance processes. To date, the Union has been unable to persuade clinical supervisors to challenge their allegedly improper classification because they fear for their jobs. The Union agrees that it bears the onus of establishing that the employee(s) who could have filed grievances have not grieved “an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees.” 6. It is helpful at this juncture to briefly set out the few facts articulated by counsel in support of their parties’ respective arguments on the preliminary issue. 7. Prior to changes implemented by the College commencing in September 2014, practicum placements in the nursing programs were taught as independent courses by full-time or partial load academic staff. Since September 2014 the College has not delivered these portions of its nursing programs as independent courses. Instead, it says that, in consultation with its full-time academic faculty, it has created support staff bargaining unit positions – clinical supervisors – by removing duties from the previous positions of “clinical instructors” such that the positions no longer fall within the Class Definitions in the academic collective agreement. 8. The Union says that the College simply changed the title of clinical instructors to clinical supervisors when it was unable to obtain in bargaining a proposal to create a new classification of “nursing clinical facilitator” (with significant cuts to wages and the elimination of benefits among other things) in the academic collective agreement. The Union acknowledges that whether there is a difference in the duties of clinical instructors versus those of clinical supervisors is an evidentiary issue, but it maintains its position that clinical supervisors’ work falls within the Class Definitions contained in the academic collective agreement. 4 9. If the College is unsuccessful in its preliminary objection my task will be to assess the evidence presented by the parties pertaining to the actual work duties performed by clinical supervisors as against the statutory Class Definitions set out in the academic collective agreement to determine whether these employees have been improperly classified. At this point I have no specifics of the duties undertaken by either those who previously occupied positions of clinical instructors or those now carrying out the duties of clinical supervisors. 10. In support of the College’s position that I lack the jurisdiction to hear the Union grievance having regard to article 32.09, the College relies on the following cases: Re Canadore College and Ontario Public Service Employees’ Union (“OPSEU”), Local 657, Unreported (January 29, 2014: D. Leighton, principal, Martin and M. Piquette) (“Canadore”), Re Durham College and OPSEU, Local 354, Unreported (November 21, 2012: P. Knopf, D. Guptil and S. Murray) (“Durham”); Re St. Lawrence College and OPSEU, Local 417, Unreported (Starkman, L. Robbins and A. Burke) (“St. Lawrence College”), Re St. Lawrence College and OPSEU, Local 417 , Unreported (April 13, 2012: D. Leighton, A. Burke and E. Seymour); Re Fanshawe College and OPSEU, Local 417, Unreported (October 30, 2009: H.D. Brown, J. Podmore and R. Davidson) and Re George Brown College and OPSEU, Unreported (June 8, 1994: Devlin, R. St. Onge and S. Murray). 11. In support of the Union’s position that the grievance is properly before me, the Union also directs me to the Durham case and relies on the following additional cases: Seneca College and OPSEU, Unreported (June 5, 1998: Devlin, R. Gallivan and S. Murray)(“Seneca College”), Re Fanshawe College and OPSEU, Unreported (December 17, 2002: Knopf, R. Gallivan an J. Mc Manus), Fanshawe College and OPSEU, Unreported (December 10, 2007: Knopf, C. Zabek and E. Seymour) (“Fanshawe College”) and Seneca College and OPSEU, Unreported (October 29, 1998: MacDowell, S. Murray ad P. Hetz). 12. I have carefully reviewed all of the decisions provided to me. The jurisprudence on article 32.09 of the collective agreement is extensive. Of the cases provided to me 5 two are factually analogous to the matter before me. Both Canadore and Durham concerned Union grievances alleging that certain employees were improperly classified in the support bargaining unit and should have been covered by the academic agreement. In both Canadore and Durham the Union grievances were determined to be inarbitrable and were dismissed. 13. The article at issue is unique. It very clearly places strict and defined limits on the circumstances that the Union may grieve. The language precludes the Union from grieving any matter that an employee would be personally entitled to grieve unless the strict and defined conditions set out in the article are met. The Union is only able to by- pass the regular personal or group grievance if it is able to establish all three criteria. The Union’s failure to meet any one of them will render the grievance inarbitrable (see George Brown College and OPSEU (Devlin) supra at p. 5.) 14. First, the Union must establish that an employee has not grieved an “unreasonable standard.” Secondly, the Union must establish that that the “unreasonable standard” is “patently in violation of the collective agreement.” Finally, the Union must establish that that the “unreasonable standard” affects the rights of employees. 15. As set out above, the Union concedes that any one of the approximately 20 clinical supervisors could have grieved that they had been improperly classified. It would have been challenging for the Union to argue otherwise in light of the Canadore award. In that case the College had implemented a new model of counseling and the issue was whether or not the work transferred to the support staff unit “track employees” had been improperly assigned out of the academic bargaining unit. Arbitrator Leighton, relying on Arbitrator Knopf’s analysis in Durham, found that an individual was able to grieve their alleged improper classification. In Canadore, the Union had argued that Durham had been wrongly decided. The Union did not argue that before me. 6 16. Notwithstanding the Union’s concession, it asserts that it has established the three criteria required to defend against the College’s challenge to my jurisdiction. The Union submits that my focus should be whether the grievance before me is more appropriately dealt with as a Union grievance or as a collection of individual ones. It says that considering the College’s actions, though the affected employees have the right to grieve, the right is an illusory one since the employees fear retribution if they do so. 17. With respect to the first criteria, the Union argues that it has established the “unreasonable standard” which it submits is the College’s application of an unreasonable standard to determine whether or not clinical supervisors are performing teaching duties. That determination is contingent on the hands on nature of college education generally and the reality of teaching in clinical nursing settings in Toronto. The Union argues that because the work does not involve lecture preparation or take place in a traditional classroom setting does not disqualify the work as “teaching.” As for the patent violation of the collective agreement, the Union contends that the College’s actions in “directly bargaining with employees about employer contracts and in unilaterally making changes to job descriptions that contraven e class definitions are more than one patent violation of the collective agreement.” Finally with respect to the “unreasonable standard” affecting the rights of employees, the Union points to the obvious impact on approximately 20 employees and on the integrity of the bargaining unit as a whole. More generally, the Union sees the circumstances of this case as part of the College’s larger plan of increasing experiential learning opportunities, thereby precluding the Union from enforcing consistent class definitions and “upholding the value of collective bargaining as a whole.” 18. The College submits that no “unreasonable standard” has been promulgated by the College to be challenged. Rather, the College has merely established assignments to be carried out by clinical supervisors. With respect to the second criterion, namely that the standard be a patent violation of the collective agreement, the College asserts that since I must assess substantive evidence about what clinical supervisors do 7 against the class definitions contained in the collective agreement to determine the question of improper classification, the violation alleged by the Union is an arguable one at best. This, the College submits, does not meet the high test of “patent violation.” Finally, the College says that any grievance broadly affects the rights of employees. However, considering the jurisprudence on this latter criterion, even on this last criterion the College argues the Union’s position also fails. 19. Though I appreciate the Union’s articulated view that my focus should be whether the grievance before me is more appropriately dealt with as a Union grievance or as a collection of individual grievances, with respect, my focus must be in applying the language of the collective agreement to the circumstances as they have been presented in a case of alleged improper classification. 20. As the jurisprudence on article 39.01 makes clear, the Union must satisfy all three criteria. I am satisfied that the Union has failed to establish at least one of these: the issue of whether the College has committed a patent violation of the collec tive agreement. 21. In St. Lawrence College at page 5, Arbitrator Starkman quoted from Loyalist College of Applied Arts and Technology and OPSEU, Local 420 , unreported, May 29, 2001 (K.G. O’Neill) in which the arbitrator described the high standard of the “patent violation” of the collective agreement as follows: The words “patent violation” have ben held to create a high standard (Seneca College and OPSEU, P. Picher, January 31, 1991), to mean the violation has to be crystal clear (Sir Sanford Fleming and OPSEU, Brent, April 28, 1988) or “leap from the page” (Centennial College and OPSEU, M.C. Picher, January 20, 1992). In Fanshawe College and OPSEU (Kruger, September 16, 1977), the Board decided that a case that was arguable on both sides was “not a patent violation.” 22. In Durham, the Union grievance alleged that the College improperly classified disability advisors in the support staff bargaining unit, and that they belonged in the academic bargaining unit. The Union maintained that the core functions of those 8 holding the positions of disability advisors were qualitatively and qualitatively equivalent to the duties in the class definitions of “counselor” in the academic collective agreement. 23. In determining that the Union had not met the test of establishing a "patent" violation” of the collective agreement, Arbitrator Knopf stated: In real or practical terms, the determination of this case demands an analysis of whether the core duties of the job function fit within the scope of the academic bargaining unit. The determination of that issue will require an examination of the job duties of each of the current disability advisors and a comparison of each with the details in the class definition of counselor. Therefore, it is very hard to view this as a case wh ere the union has established a “patent violation" of the collective agreement. The alleged violation is not crystal clear, nor is it apparent on its face. Something that requires detailed evidence that involves differing situations and demands the weighing of testimony falls short of meeting the high burden of establishing a “patent violation” of the collective agreement. 24. The Durham case was on “all fours” with Canadore as articulated by Arbitrator Leighton, and it is on “all fours” with the case before me. I agree with Arbitrator Knopf’s analysis of the “patent violation” criterion and I adopt it. As was the case in Durham, this dispute will require the careful weighing and assessment of evidence on the merits. It is not obvious at this point that the re has been a “crystal clear” violation of the collective agreement. 25. The Union directed me to the Seneca College and the Fanshawe College cases, on the issue of “patent violation.” In Seneca College, the College had assigned professors workloads in excess of the 47-hour limit – an express standard - established by the collective agreement in article 11.01 J 1. The College had agued that the Professors could agree to work in excess of the 47 -hour limit. In the Fanshawe College case, the College failed to provide credit on the Standard Workload Forms (SWFs) to members for Professional Development Opportunities (PDO’s). If providing PDO’s was a teaching or a complementary activity, it was to receive credit, unless article 11.08 applied. 9 26. The Seneca College and Fanshawe College cases are distinguishable from this matter. In the very different context of the former case Arbitrator Devlin was of the view that whether the Union was able to establish a patent violation was more appr opriately decided on the merits. In the Fanshawe case Arbitrator Knopf - the author of the Durham case - referred to the onus of establishing a patent violation as a heavy one - but not one so heavy as to demand that the alleged violation be beyond dispute: only that it be “substantially beyond dispute.” In the case before her, the allegations or competing positions were, in Arbitrator Knopf’s words “not merely arguable.” 27. Given the nature of the dispute as articulated by the parties during the course of argument, considering my comments set out at paragraph 9 above and with particular regard to Arbitrator Knopf’s comments in Durham, I find, as did Arbitrator Knopf that the Union is unable to establish a patent violation of the collective agr eement. In the case before me, a determination of the alleged violation will require a nuanced and detailed assessment of evidence about what clinical supervisors do in the nursing programs at the College as compared to the class definitions in the academic agreement. 28. Given my finding that the Union has not demonstrated a patent violation, it is unnecessary to consider whether or not the other two conditions in article 39.01 have been satisfied. I do not have jurisdiction to hear this grievance. Accordingly, the grievance is dismissed. Dated at TORONTO on May 25, 2015. ________________________________ Christine Schmidt, Sole Arbitrator