Loading...
HomeMy WebLinkAboutDemopoulos 93-05-05IN THE MATTER OF AN ARBITRATION B E T W E E N: THE ONTARIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS & TECHNOLOGY (FANSHAWE COLLEGE) Employer - AND - THE ONTARIO PUBLIC SERVICE EMPLOYEES (FOR ACADEMIC EMPLOYEES) Union AND IN THE MATTER OF A GRIEVANCE OF RAI DEMOPOULOS Grievor BEFORE: Prof. C. Gordon Simmons, Chairperson Mr. R.J. Gallivan, Employer Nominee Ms. Jane Grimwood, Union Nominee APPEARANCES FOR THE EMPLOYER: Mr. Barry Brown, Counsel Mr. Fred Steinmetz Ms. Gail Rozelle APPEARANCES FOR THE UNION: Mr. Ian Roland, Counsel Mr. Gary Fordyce, OPSEU, Local 110 Ms. Rai Demopoulos, Grievor Hearings into this matter were held in London, Ontario on April 28 and December 15, The grievor is a professor at Fanshawe College and has been an employee at that institution since 1981. She commenced her employment as a part-time teacher and became a full-time faculty member in 1983. On July 3, 1991 Ms. Demopoulos filed her grievance alleging that the Employer had discriminated against her. Her grievance reads (Exhibit 1): I grieve that the College has discriminated against me, interfered with me, and disciplined me in violation of articles 2.01 and 29.01 et al of the Collective Agreement when I was denied an assignment of teaching photography. As remedy I seek Phot 105 and Phot 205 and any other general photography courses presently taught by sessional, part-time and/or partial-load teachers to be part of my assignment for 1991-1992. It can be seen that the grievor is claiming entitlement to teach certain courses in the Photography Department. She basis her claim on Articles 2.01 and 29.01 of the Collective Agreement. In his opening statement, Counsel for the grievor added Article 27.01 which the grievor is relying on in support of her claim. Articles 2.01, 27.01, and 29.01 read as follows: The Colleges and the Union agree that there will be 2.01 no intimidation, discrimination, interference, restraint or coercion exercised or practiced by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of an employee's activity or lack of activity in the Union or because of an employee's filing or not filing a grievance including participation in the workload complaint system. (a) The parties agree that, in accordance with the 27.01 provisions of the Ontario Human Rights Code, there shall be no discrimination against any employee by the union or the Colleges, by reason of race, creed, colour, age, sex, marital status, nationality, ancestry or place of origin. (b) It is understood that nothing contained in (a) above limits the right of an employee to grieve in accordance with the grievance procedure as set forth in Article 11 hereof. (c) The parties agree that the implementation of a special program under Section 13 of the Human Rights Code, 1981, as amended, shall be deemed not to contravene clause (a) above. (a) The College will continue to make reasonable 29.01 provision for the conditions of safety and health in the employees' work areas in the College by conforming with the provisions of the Occupational Health and Safety Act and Regulations. (b) Where the employee in the performance of duties uses safety equipment as required under the Occupational Health and Safety Act of Ontario, the College shall provide such equipment to the employee at no cost. Specific eligibility problems shall be resolved by the Joint Occupational Health and Safety Committee. Because the grievance is based on allegations of discrimination et al, the facts become important and will be set out in detail below. As stated previously, the grievor was first employed in 1981 teaching on a part-time basis. Her area of teaching included "Introduction to Non-Traditional Occupations for Women". As time passed the grievor continued to teach in the same program but was given other courses as well. Some of these courses included teaching English in an upgrading program and also a counselling course for immigrant women. These courses were in the Department of Preparatory Studies. During the winter semester in 1990, the grievor took an English as a Second Language (ESL) teacher training course. The grievor had also been enrolled as a part-time student at the University of Western Ontario from September, 1983 and in the spring of 1990 applied for a sabbatical leave in order that she could attend the university to complete her degree. Her stated intention was to register and complete classes in both the English Department and the Department of Visual Arts. It was her further intention to do course work in both Art History and Studio Art as well as work in Film & Video History and Criticism. Mr. Rick Mateer, Associate Dean in the School of Continuing Education, replied to the grievor's application for sabbatical leave stating, in part, that the subject matter of study that she had planned was not directly beneficial to the courses taught in the Preparatory Studies area. Mr. Monte Black, Chair of the Preparatory Studies Department, replied to Mr. Mateer in support of the grievor's application for her leave. Mr. Black acknowledged that some of her studies in Art History and Studio Work would have little direct value to the Preparatory Studies Department. However, he also indicated that there were other courses she planned to take which would be of direct value to the Communication & Fine Arts Division and the Design Division should she continue to teach in those divisions. Eventually, President Barry Moore, president of Fanshawe College, approved the application for the grievor's sabbatical leave but in his first paragraph stated: "It must not be construed from this approval that your proposed course of study will prepare you for teaching assignments in the photographic area." At the end of the approval there was space for the grievor's signature indicating that she accepted the conditions set out in President Moore's letter. However, she added a statement at the end of the letter which reads: In response to paragraph one and to ensure that there is no confusion, it is my understanding that the college has agreed to give consideration to the continuation of part of my assignment being in the photography area as a result of my successfully completing Part One of ESL Teacher Training. It is obvious that the grievor's first love is photography and that she relishes teaching in that area. Mr. Fred Steinmetz is the chairperson of the Communication Arts Division and the Photography Department falls within that division. The Board was provided with a list of courses that the grievor had taught between the years 1987 and 1990 (ExhibitÊ5). This exhibit illustrates that the grievor was spending considerable hours in teaching photography courses. According to Mr. Steinmetz's evidence, the only witness called by the Employer, the grievor began teaching introductory photography courses because of developments that were occurring in the Preparatory Studies Department. In 1987 the grievor was employed full-time in the Preparatory Studies Department. Mr. Black, the chairperson of that department, became aware that there were to be cutbacks in his department. He was familiar with the fact that the grievor had photography experience and approached the Communication Arts Division to see if there were any openings in that department where she could teach. It was decided that she would be given some introductory photography courses and she continued to be employed on a full-time basis until 1990 when she left on sabbatical leave to attend the University of Western Ontario. Mr. Steinmetz testified that when he heard that the grievor would be away in the 1990/91 academic year, he hired a student, Ms. Cathy Paul, who was graduating from the program at Fanshawe in the spring of 1990. Mr. Steinmetz further testified that the co-ordinator in the department, Mr. Peter Meeuwis, informed Mr. Steinmetz that he was quite pleased with Ms. Paul's performance. In addition to Ms. Paul, a Ms.ÊCindy MacDonald was hired on a part-time basis in the Fine Arts program. Ms.ÊMacDonald taught photography to the Fine Arts students which is to say she taught photography as an art form as opposed to photography. Before hiring the two individuals Mr. Steinmetz testified that he contacted Mr. Black to ascertain if the grievor would have a full teaching assignment in the Preparatory Studies Department whereupon Mr. Black replied in the affirmative. Mr. Steinmetz then decided to renew the part-time contracts with Misses Macdonald and Paul. When the grievor returned from her sabbatical leave she was not given any courses in the Photography Department but instead was assigned to teaching ESL in the Preparatory Studies Department. The foregoing then is the basis for the grievor's claim that she had been discriminated against, interfered with, and disciplined because she was denied an assignment of teaching photography. The Union advanced the position that there was no need for additional ESL teachers when the grievor was scheduled to return after her sabbatical leave in the fall of 1991. This is due to the fact that in February, 1991 the Employer had planned staff reductions in the ESL area. There were seven teachers in that department who were scheduled to be laid off. The Union knew there were part- time teachers in the Photography Department and suggested that instead of layoff the grievor be transferred to the Photography Department. However, no full-time teachers in ESL were laid off as the Employer found other areas for them to teach and/or additional funding came in. Another area of her claim is that she alleges the Employer had promised to allow her to teach photography upon her return from her sabbatical leave. This is based upon the documents contained in her application for sabbatical leave (ExhibitÊ4) wherein President Moore approved her leave but which she added the comment at the end of the approval letter stating that she be given consideration to teach in the Photography Department. Mr. H.W. Rundle, Vice-President Academic, wrote to the Union on May 30, 1991 wherein he stated that after careful consideration they would not grant the grievor the two courses in photography that she was seeking. It was explained that one of the courses, Fine Art, required the teacher to have an essential qualification; the individual must be first and foremost an artist who uses this medium and can teach the course from that perspective. Mr. Rundle further stated that the college had been able to secure such an individual and would be having that individual teach the course. In regard to the "Audio Visual Photography course" it was acknowledged that the grievor had taught the course previously and if the situation was a layoff situation the college would be prepared to see her continue teaching that course. But since such was not the case, the course would not be offered to the grievor. Another ground of alleged discrimination centres around the grievor's involvement in union affairs. In November, 1989 there was a strike at the college. The London Free Press carried a story with a picture of the grievor handing out congratulatory cards to students who were entering a parking lot for graduation exercises. The grievor stated that she handed material to Mr. Steinmetz on one occasion when he was passing by the picket line in which she was a steward. Therefore, it is alleged that this is one of the reasons why the college did not want her in the Photography Department. The grievor appears to be an assertive person and the allegation is that the Communication Arts Department did not wish to have her. Mr.ÊSteinmetz testified that he was unfamiliar with the fact that the grievor was actively involved in union matters and while he may have seen her on the picket line there were numerous teachers on the picket line. He denies that her union activity had anything to do with not having her teach the photography courses upon her return from her sabbatical leave in September, 1991. Another ground for the grievor's allegation centres around a health and safety issue. There is a darkroom in the Photography Department which had inadequate venting. The grievor raised this matter with Mr. Steinmetz who, according to the grievor's evidence, took the matter seriously and acted on having improvements take place. However, on one occasion during the summer of 1990 the grievor met Mr.ÊSteinmetz on a chance encounter and when she asked how the vent system was proceeding he appeared to be abrupt. She admitted in cross- examination that she assumed he was abrupt because of her continually asking questions concerning the vent system. Mr. Steinmetz, on the other hand, testified that he had been going through a marriage break-up and had many things on his mind at the time and could have been abrupt but that was not due to the venting system, it was in fact due to the breakdown in his marriage. The grievor also alleges that she is being discriminated against because she is female and the Photography Department is dominated by four full-time teachers who are males. She is described as an assertive woman (to use her phrase, "uppity woman"). One example is an occasion when the grievor was performing work in the darkroom complex where she was dry mounting and cutting student work for the Design School's open house. Four males came into the area laughing and talking and she overheard what she assumes was an audio tape which she described as a pornographic tape. She testified that it sounded to be a woman having sexual intercourse and selling sex. One of the males came to the area where she was working and stared at her which made her uncomfortable. She could not work so gathered her materials and went straight to Mr. Steinmetz's office but his door was locked. She then reported what she had seen and heard to Mr. Steinmetz the next day whereupon she testified that Mr. Steinmetz was visibly disturbed and said he would check into it. When the grievor met Mr. Steinmetz a few days later, he informed the grievor that he had looked into the matter and informed her there was nothing improper about it because the tape belonged to a faculty member and it was being used in a class. He elaborated that the tape was being used for discussion purposes to differentiate between pornography and art. However, the grievor testified that there was no teacher with the students when she encountered them and she further testified that the alleged teacher had been a friendly individual until this incident but his attitude became one of hostility afterward. The grievor maintains that she is being discriminated against because of her assertiveness in a male-dominated department. The foregoing then is a recital of the salient facts that we have before us. The question then is do those facts reveal discrimination, interference, or discipline as alleged in the grievance. In turning first to the allegation that the grievor was discriminated against because of her union activity which is prohibited in Article 2.01, we were referred to an earlier arbitration decision between these parties chaired by Kenneth P. Swan, dated November 30, 1988 wherein that board referred yet to another earlier decision between these parties chaired by Arbitrator Brent. In the Swan award the grievor was a teaching master in the Mechanical Technology Division teaching courses in the stationery engineering program. The chairman of that division was Mr. Fred Brill. Mr. Brill visited one of the grievor's classes without prior announcement. It was found that Mr. Brill showed a considerable degree of displeasure with the grievor's conduct of the class and with the course materials available to be shown to him. The Board went on to state that it was likely that Mr. Brill was frustrated with the grievor and made that perfectly clear both to the grievor and to the students present. When the grievor filed his grievance the Employer responded that it felt the grievor was throwing up a smoke screen to mask the fact that he was failing to carry out a number of very specifically assigned facets of his job. The Employer went on to state that it would be addressing these matters directly and separately in the very near future. The grievor viewed this statement by the Employer as constituting a threat of disciplinary action and filed a second grievance. The second grievance basically claimed that he was being intimidated by threats of disciplinary action because he had filed a grievance. The Union claimed that the classroom evaluation by Mr. Brill was intimidating, harassing, and discriminatory and was in direct response to Union activity on the grievor's part. The Swan board had the following to say at pages 15 and 16: Both counsel agreed that the appropriate test for a breach of Article 2 of the collective agreement has been propounded in another arbitration between the present parties, Re Fanshawe College and Ontario Public Service Employees Union (Lovelock), unreported, January 23, 1986 (Brent). In a unanimous award, the board of arbitration found that in such a case the Union has the onus of proving first that there was discrimination, and second that the discrimination was based on one of the prohibited grounds set out in Article 2.01. On page four of the award, the board returns to this theme: As noted above, there are two questions to be answered in assessing whether or not there has been a violation of Article 2.01. Logically we should start by asking whether there has been any discrimination; however, we prefer to start with a second question. Let us assume, therefore, for the sake of our analysis, that the grievor has been treated in a discriminatory manner and ask whether there is any reasonable basis for concluding that there is a connection between her treatment and her Union activities. We agree that in a situation where there has been discrimination on any prohibited ground, it would be rare to have an admission of wrongful behaviour. It is therefore necessary to examine all of the evidence and to draw inferences from that evidence. In this situation we have no direct evidence of any connection between the grievor's Union activities and what occurred. There is no evidence of any past antagonism between her and Mr. Black or past behaviour on Mr. Black's part which could lead to the conclusion that he was annoyed or bothered by the grievor's Union activities. There is, in short, a total lack of evidence of any past dealings or behaviour which could suggest that Mr. Black's actions in this case were part of a pattern of behaviour which could be labeled as being discriminatory because of Union activities. We agree with the Br ent board that the test is twofold, and we propose to approach the matter in the same order, by first considering whether there is anything to connect the treatment of the grievor with, in the case of the first grievance, his activity in respect of the Union, or in the case of the second grievance, with his filing of the first grievance. The grievances were dismissed. In the instant situation the grievor alleges that she was denied teaching assignments in the Photography Department because of her involvement in the strike activity of November, 1989. She has been a union steward since 1986 to the present day. She was picket captain and a member of the strike committee that occurred in October/November, 1989. She has been the Local's representative on the London and St. Thomas District Labour Council since 1988 to the present time. She is presently Chair of the Women's Committee on that Council. In 1987 and 1988 she was the Local's representative on the Fanshawe College Affirmative Action Committee. Mr. Steinmitz testified that he had been unaware that the grievor had been a picket captain during the strike in 1989. While we agree with the Brent and Swan approaches that the test for violation of Article 2 is twofold, we are unable, based on the evidence that is before us, to get past the first test. That is to say, the first portion of the test is that we assume that there was discrimination. The evidence does not permit us to make that assumption. While the grievor may have surmised that Mr. Steinmitz disliked her high profile in the strike, that alone is insufficient to establish an element of discrimination. Mr. Steinmitz stated that he did not know that the grievor was a picket captain and did not in any way consider her union activities in reaching any of the conclusions that he reached. It is true, as the Brent award states, that it would be rare to have an admission of wrongful behaviour. However, even when we look at the evidence of the grievor there are no statements to the effect that Mr. Steinmitz behaved in any way which would give an indication to the grievor that he was acting improperly and on one of the prohibitive grounds set out in Article 2.01. Accordingly, this arm of the grievance cannot succeed and must be dismissed. Next there is the ventilating system which raised health and safety concerns. The grievor claims that she was discriminated against because of her continued requests of Mr. Steinmitz to improve the system. Mr. Steinmitz's evidence is that the ventilating system has been a problem since 1970 or 1971. He considered the grievor to be an ally in effecting repairs to the system. The grievor herself states that Mr.ÊSteinmitz was receptive and took her concerns seriously and acted on them. The one time when Mr. Steinmitz was abrupt was when she met him outside of the area and asked him how the repairs to the ventilating system were proceeding. Mr. Steinmitz explains that he could very well have been abrupt on that occasion due to marital problems and if such were the case he apologized to the grievor during the course of his testimony. Mr. Steinmitz maintained that he considered the grievor to be an ally in effecting repairs to the ventilating system. He readily admits that the system was not adequate and testified that on occasions he closed the area because of the presence of fumes. Based on that evidence in its totality, we are again unable to conclude that there was discrimination against the grievor because of her urging that the ventilation system in the darkroom be repaired. Accordingly, we are unable to conclude that Article 29.01 has been breached and this branch of the grievance likewise must fail. Third, it is alleged that the Employer discriminated against the grievor in violation of Article 27. That is to say, the grievor being an "uppity woman" was assertive in pursuing her rights was therefore denied being assigned courses in the Photography Department. The evidence again does not support such an allegation. Mr. Steinmitz had hired two part-time, female teachers during the grievor's absence on her sabbatical leave. Part-time teachers are hired on annual contracts. Mr.ÊSteinmitz testified that prior to renewing the part-time teachers' contracts he contacted Mr.ÊBlack, Chair of the Preparatory Studies Department, to ascertain whether the grievor would be fully employed in the Preparatory Studies Department or whether there was insufficient work in the department for the grievor to be employed on a full-time basis before he decided to renew the contracts of the part-time teachers. Mr. Black assured Mr. Steinmitz that there was full-time work for the grievor in his department. Once having received this assurance from Mr. Black, Mr. Steinmitz then renewed the contracts for the part-time teachers. In these circumstances, can it be said that the Employer has discriminated against the grievor because of her sex? We think not. The two part-time teachers are female who were hired while the grievor was on sabbatical leave. It is true that part-time teachers do not enjoy the same measure of job security as do full-time teachers. It is further the case that the contracts of employment for part-time teachers are on a renewable annual basis. Nevertheless, the evidence reveals that prior to making commitments to the part-time teachers enquiries were made to ascertain the available workload for the grievor in the Preparatory Studies Department before making such a commitment. In such circumstances, we are of the opinion that there is no discrimination evident that could be said to be present to establish a violation of Article 27. Accordingly, this leg of the grievance likewise fails and must be dismissed. Accordingly, for all of the foregoing reasons, we find that the Employer has not violated the Collective Agreement and the grievance must be and is hereby dismissed. Dated at Kingston, Ontario, this 5th day of May, 1993. [--- Unable To Translate Box ---] C. Gordon Simmons Chairperson "R.J. Gallivan" I concur/dissent[--- Unable To Translate Box ---] R.J. Gallivan Employer Nominee "Jane C. Grimwood" I concur/dissent[--- Unable To Translate Box ---] Jane Grimwood Union Nominee