HomeMy WebLinkAboutTracy 91-06-05IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
(the Union),
- AND -
ST. LAWRENCE COLLEGE,
(the "College).
AND IN THE MATTER OF A GRIEVANCE DATED MAY 22, 1990, FILED BY RUTH TRACY
BOARD OF ARBITRATIONR. D. Rowe, Chair
G. Majesky, Union Nominee
R. Hubert, College Nominee
APPEARANCES
For the UnionR. Healey, Counsel
For the CollegeG. F. Luborsky, Counsel
J. R. Flegg
A hearing in the above matter was held in Toronto, Ontario on February 13, 1991
A W A R D
This Award pertains to certain preliminary objections raised by counsel for the College in respect of what the
Union characterizes as a Local Union grievance, filed on May 22, 1990 by Ruth Tracy, the President of O.P.S.E.U.
Local 417 (the "Local"). The information contained in the grievance includes the following:
STATEMENT OF GRIEVANCE
That the College, contrary to Article 4 of the Collective Agreement for Academic Employees, is assigning
employees to overtime, voluntary and involuntary, and to accept imposed overtime payments that are not in
accordance with the Collective Agreement. Further the College has contravened Article 14 of the Agreement in that
the College misled the Union Local concerning the College's intentions in regard to the payment of overtime
performed by selected professors, counsellors and librarians at St. Lawrence College. SETTLEMENT DESIRED
That the College disclose to the Union Local the compensation paid to each employee for the performance of
overtime, both voluntary and involuntary; and disclose complete details of that overtime; and that the College then
negotiate with the Union, in accordance with Article 1 of the Collective Agreement, fair compensation for
involuntary overtime worked by all employees.
Article 1 of the Collective Agreement is a recognition clause. Article 4 is an eleven and a half page provision
concerning workload. Article 14 provides as follows:
Article 14
COLLEGE MEETINGS
14.01 The Union Local may appoint a Committee at each College composed of up to three (3) members from
among employees who have completed the probationary period. Where a College has another Campus more than
thirty-two (32) km away from the College's main establishment, with at least twenty (20) employees covered by
this Agreement employed thereat, the Union Local may appoint a Campus Committee of up to three (3) members,
two (2) of whom shall be from employees on that Campus who have completed the probationary period.
14.02 A Committee of three (3) members appointed by the College or Campus officials will meet with the Union
College or Campus Committee at a mutually agreed time and place provided that either party requests and gives at
least seven (7) days prior notice accompanied by an agenda of matters proposed to be discussed. It is agreed that
matters to be the subject of discussion at meetings include:
(i) local application of this Memorandum of Agreement;
(ii) clarification of procedures or conditions causing misunderstanding or grievances;
(iii) local initiatives to enhance employment equity including matters relating to child care;
(iv) an internal complaint process to facilitate the resolution of employee complaints that do not fall within the
provisions of Articles 4.01 4.02 or Article 11;
(v) other matters which are mutually agreed upon;
(vi) if requested by the Union Local, the rationale for a sessional appointment
by the College shall be the subject of discussion; and
(vii) if requested by the Union Local, the College shall explain its rationale for its application of Article 8.04(c),
Appendix II(6) or Appendix III(2), and in particular, will consider any representations which the Union Local may
make with respect to the assigning of work on a full-time or a sessional, partial-load or part-time basis, and with
respect to the feasibility of assigning work on a full-time basis rather than on a sessional, partial-load or part-time
basis.
It is understood that the College will continue to make reasonable provision for environmental conditions of air,
light, space and temperature of employees' work areas in the College. A complaint of an employee concerning the
environment conditions mentioned above, shall be discussed at a meeting under this Article and not under the
provisions of the Grievance Procedure. It is agreed that meetings under this Article shall not concern or entertain
matters that are properly the subject of meetings as provided in Article 30.02.
14.03 Where it is considered mutually desirable that the Union Local and the College set out in writing the
resolution of a matter as to the local application of this Agreement or clarification of procedures or conditions
causing misunderstanding or grievances as referred to in sub-paragraph i) or (ii) above, such resolution may be
signed by the parties and apply for the specific terms agreed upon but, in any event, shall not continue beyond the
term of this Agreement as currently in effect.
The Local's right to file a grievance is set forth in Article 11.10:
11.10 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 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 persons in the bargaining unit.
Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Local President to
the Director of Personnel or as designated by the College, within twenty (20) days following the expiration of the
twenty days from the occurrence or origination of the circumstances giving rise to the grievance commencing at
Step No. 1 of the Grievance Procedure set out above.
The grievance was initially scheduled to be heard on December 4, 1990, but was subsequently rescheduled for
February 13, 1991, on the agreement of the parties. The material placed before us at that hearing includes a number
of documents that were entered as exhibits on the agreement of the parties, and a number of facts stipulated by
counsel during the course of their submissions. Although there are some areas of factual dispute, they are
immaterial for purposes of the matters dealt with in this award. In denying the grievance, Bill Cruden, the
President of the College, wrote as follows in a memo to Ms. Tracy dated May 29, 1990 (the initial portion of which
contains a summary of the parties' arguments and has been omitted from the following quotation):
I find this is not an Article 4 workload issue But one regarding the scheduling of vacations, the assignment of
workload in the 11th month and the pro-rating of compensation in accordance with Article 5.01(2).
Your grievance, therefore is denied.
My decision notwithstanding, let me add the following.
First, I accept the College's statement that it was not their intent to mislead the Local and I trust you will accept
their apology given at the meeting.
Secondly, the College has been very sensitive to the unique challenges posed by this year. While Article 4 governs
workload during the teaching period, and adherence to it ensures that overload situations do not occur, the same
degree of specificity is not provided for during the non-teaching period. All front-line academic managers have
taken specific steps, in consultation with their faculty, to ensure that overload situations do not occur during this
period. As well, the decision to provide all faculty a minimum of one week non-teaching time, even when it was not
possible to do so within the ten month academic year, was considered to be a logical extension of that desire to
prevent overload situations from occurring.
Thirdly, let me assure you that, the issues being separate, payments made under Article 5.01(2) - and acceptance of
those payments - will not prejudice any complaint filed under the Teplitsky Award. Furthermore, such
arrangements will only be referenced at any hearing Mr. Teplitsky may order solely for the purpose of ensuring, as
best we can, that no individual is compensated twice for the same work.
The College's preliminary objections were described as follows in a letter dated November 28, 1990 from John R.
Flegg, the College's Employee Relations Manager, to Ms. Tracy: .
As we have previously advised you, it is the position of the College that the above noted grievance has been
improperly filed.
Accordingly, please be advised that at the arbitration hearing, we shall be raising a preliminary objection to the
arbitrability of the Union's grievance.
It is the position of the College that as the essence of the Union's grievance relates to adjustments that were made as
a result of Arbitrator Teplitsky's Return to Work Protocol, that only Arbitrator Teplitsky is seized with respect to
this matter pursuant to his arbitration awards dated November 28, 1989 and December 7, 1989.
Moreover, to the extent that the Union complains about any overtime payments made to any individual, that is a
matter to be dealt with by the individual specifically and, pursuant to Article 11.10 of the Collective Agreement, the
Union cannot bypass the arbitration procedure by filing a policy grievance.
Finally, it is our position that any remaining aspects of the grievance discloses, on its face, no violation of the
Collective Agreement. In addition to the three grounds for dismissal mentioned in that letter, College counsel
argued that the grievance should be dismissed because there is no remedy disclosed on the face of the grievance
which the Board has the power to award.
Bargaining unit employees engaged in a lawful strike from October 18 to November 14, 1989. On the latter date,
award
Martin Teplitsky was appointed mediator/arbitrator in respect of the disputes between the parties. In his
dated
November 28, 1989, Mr. Teplitsky wrote, in part, as follows:
By agreement in writing dated the 14th day of November, I was appointed mediator/arbitrator. This followed a
strike of 28 days. I am required to complete my work by November 30th. Given the number and complexity of the
issues, it was not possible to spend much time in mediation. In accordance with my usual practice, a practice
designed to avoid disclosure of confidences shared in mediation--the reasons which accompany this award are
brief.
RETURN TO WORK PROTOCOL
In my opinion, it is reasonable in the light of teaching days lost during the strike to utilize available time to ensure
so far as possible the completion of the teaching component of the academic year. As I interpret par. 9 of the
Agreement dated November 14, 1989, it prevents a-retroactive increase in the number of hours to be actually
worked but it does not prevent reducing the time available for complementary functions and professional
development as provided in Article 4.01(2) and _ accordingly permits the rearrangement of the work to be
performed. Accordingly, for the academic year 1989-l990 only to the extent necessary the 4 weeks lost may be
made up at the expense of time reserved for complementary functions and professional development. In other
words, the teachers may not be required to perform work ordinarily done as part of complementary functions and
professional development during the non-teaching period to the extent that such time will now be used for teaching.
The teachers were on strike for 28 calendar days. Their pay is reduced by 1/261 for each working day. In the result,
they can be required to utilize time differently from the way they would have utilized it ordinarily but they cannot
be required to spend more time than ordinarily required without compensation in accordance with the provisions of
Article 4, particularly overtime.
The Union requested a payment to be determined by me as a result of the extra work its members would have to
perform because of the need to complete the teaching position of the academic year. It placed reliance on the award
of Paul C. Weiler, dated June 10, 1985. In my opinion, this award is of no assistance because the facts then were
different. Moreover, Professor Weiler said:
"In considering this claim, it goes without saying that as a matter of both common sense and statutory policy, the
employees should not be paid, either directly or indirectly, for the period of time durlng which they were out on
strike. Their case must clearly rest on what happened when they were back at work after to exceed these upper
limits after the strike; so far as I was told, when they did so the appropriate faculty consents were obtained and
compensation paid."
In this case there is no evidence of any extra duties having been imposed. Little time has elapsed. The return to
work protocol I have fashioned does not permit the assigning of additional work. It permits the rearranging of the
work to be performed. Further, in contradistinction to the situation in 1985, there is now a work-load formula and
SWF's [Standard Workload Forms]. It would be premature to make any award at this time which, in any event,
would be a mere guess and could not measure any additional work which may be performed. To avoid burdening
the grievance-arbitration svstem with qrievances which may arise, I will remain seized to hear and determine any
grievances in this connection. The parties and I will meet to develop guidelines for the speedy, efficient and
inexpensive resolution of such grievances.
The employer asked to be relieved of the entitlement to the professional development days. I have decided for the
year 1989-1990 to reduce the number to 9 and to permit a carry over of any days not assigned as PD this year to
1990-1991. The employer must use its best efforts to avoid this occurring.
The employer also suggested that the strike warranted a curtailment of the length of vacations. Although a logical
basis could be advanced to reduce the vacation period by perhaps 10%, I have decided against such an award, in
part, to avoid any unfairness, if small and largely unmeasurable additional work is created.
RETURN TO WORK PROTOCOL
1. Given that the work stoppage commenced mid-week, the interrupted teaching week of the first week of the work
stoppage, as well as any possible interrupted teaching week during the first week of return to work in which
teaching occurs, will not count as full teaching contact weeks, but will be pro-rated on the basis of the actual
contact-days taught.
2. The reference to the enrollment audit dates in Article 4.01(5)(c) for the Fall term of 1989/90 will be interpreted
to mean a date 14 calendar days after the official return to work day.
3. For the purposes of Article 4.01(7)(b), the circumstances arising as a result of the work stoppage are not deemed
to be atypical
4. Where the only change to the instructional assignment as described on the SWF in force when the work stoppage
commenced is the change in the dates of the SWF period and any resultant changes to the total contact hours, days
and weeks, this does not constitute a change in circumstances requiring an amended SWF as indicated in Article
4.02(1)(a)(ii).
5. For the year 1989-90, the total professional development days referred to in Article 4.01(8) shall be reduced to 9.
The College may require that less be utilized, but any not utilized shall be carried over to the year 1990-91, and
may be utilized in addition to the normal allocation for that year. The College must use its best efforts to avoid this
occurring.
6. The provision of six weeks in Article 4.02(1)(a)(i) is waived for any SWFs to be issued with a starting SWF
period falling within four weeks of the official date of return to work. For a SWF period commencing between four
weeks and eight weeks following the official date of return to work, the reference to six weeks becomes two weeks.
Beyond eight weeks, Article 4.02(1)(a)(i) applies unchanged. However, the College shall provide copies of SWFs
as early as practicable.
7. The provision of two weeks in Article 4.02(1)(e) is waived for any SWF period commencing within four weeks
of the official data of return to work.
8. The reduction in the annual salary for a full-time bargaining unit member will be 1/261 of the annual salary for
each working day of the work stoppage.
9. 5.03 - The four-week notification period for vacation will be waived for - two weeks following the end of the
work stoppage.
10. For the purposes of Article 8 and Appendix III, Article 10 and Article 11, the work stoppage period will not be
considered in determining the time requirements.
11. The resumption of salary and benefits is effective on the official return to work day, November 15, 1989.
CONCLUSION
The Agreement shall be in the form of the previous Agreement as amended by my Award and shall be effective the
date of my Award except for salaries which shall be retroactive to September 1, 1989, with the exception of the
strike period as dealt with in the return to work protocol.
Any issue raised by either party that has not been specifically dealt with in my Award shall be deemed to have been
dismissed by me, and shall be governed by the existing provisions of the Agreement.
I remain seized of all issues that remain to be implemented in order to complete my Award and the execution of the
Collective Agreement between the parties.
[emphasis added]
The following passages are included in Mr. Teplitsky's supplementary award dated December 7, 1989:
Both parties requested that I alter, vary and/or interpret my award, as provided under S. 30(3) of the Colleges
Collective Bargaining Act. Having heard and considered the submissions of the parties, I make the following final
ruling and comments.
RETURN TO WORK PROTOCOL
Amend paragraphs 2, 6 and 7 on pages 27 and 2~ to change the references to the "official return to work day", and
the "official date of return to work" to the "date of the award (November 28, 1989) n in each case.
I was asked to clarify some aspects of the procedure for dealing with claims for extra work arising out of the Return
to Work Protocol.
I intend such claims to include matters that might otherwise proceed under both the regular grievance procedure
and the complaint procedure under Article 4, and I will ultimatelv deal with any such claims. This does not mean,
however, that the grievance or complaint procedures cannot be utilized short of arbitration, and indeed it is my hope
that many claims can be sorted out during the grievance and complaint steps.
There will be no strict time limits for making or processing such claims, but potential claimants should understand
that there is an obligation to be prompt, and to put such claims in writing with a reasonable amount of specificity.
Colleges should not be prejudiced by stale claims, but it must be recognized that actual claims may not crystalize
until much of the academic year has been completed.
As I indicated in mv Award, when the nature and extent of the claims becomes known, it is my intention to consult
with the parties and to resolve the claims.
[emphasis added]
The teaching time lost as a result of the strike was made up in a variety of ways at different colleges. Many colleges
cancelled or shortened the March break. Others scheduled classes during the first week of January. The teaching
year was extended two or three weeks at some colleges. At others, some instructors were required to teach right up
to June 29, 1990, which was the day before their summer vacation would normally commence. There was also
considerable diversity within St. Lawrence College itself. For example, one campus replaced the March break with
a four-day weekend, and another campus used earlier start up dates in January.
As a result of the rearrangements which occurred at the College, the administration determined that for some
individual employees the rearrangement of the academic year would result in their being scheduled to teach right up
to June 29, leaving no time to complete certain non-teaching functions. Consequently, the College decided, on the
basis of its assessment of their individual schedules, that it would pay certain individuals for performing that work.
As indicated in the above-quoted reply to the grievance, the College relied upon Article 5.01(2) in determining the
amounts to be paid. That provision reads:
A teacher assigned to teach for an additional month (llth month) over the normal teaching schedule of the
equivalent to ten months as part of a continuous twelve (12) month program shall be entitled to a vacation of one
(1) month, as scheduled by the College. Such teacher shall also receive a bonus of ten (10) percent of the
employee's annual salary for the additional eleventh month of teaching assignment to be paid on completion of such
assignment. A teacher assigned to teach in the eleventh month for less than a full month will be entitled to a pro-
rata amount of the ten (10) percent bonus referred to above, to be paid on completion of such assignment.
A member of the teaching faculty teaching in a continuous program shall not be required to teach for more than
twelve (12) consecutive months without a scheduled vacation of at least one (1) month.
The amount paid to those individual varied on the basis of the College's assessment of the amount of work required.
When the College met with the Local on April 30, 1990 at a regularly scheduled Union-College Committee
("U.C.C. n ) meeting, the College, as a matter of information, indicated what it intended to do and provided the
Local with the following sample memorandum (which is a "merge memo" into which names, dates, and other
details were to be subsequently added in the appropriate places designated by the numbered VAR notations):
M E M O
TO:&VAR01
FROM:&VAR02
DATE:April 30, 1990
SU3J:WORRLOAD AND VACATION SCHEDULING
***********************************************
I have reviewed your workload assignment for this academic year. Your teaching assignments will be completed 90
06 &VAR03, at which time you will have taught the maximum LVAR04 weeks. This results, this year, in no non-
teaching weeks in which to complete the non-teaching tasks to which we have agreed.
For example, this would leave no time for: &VAR05.
It will be necessary, therefore, for you to work one additional week in this academic year for which you will be
compensated &VAR06, consistent with Article 5.01(2), with your pay due &VAR07.
Your vacation will now begin &VAR08.
Once again, I would like to recognize the professional way you have met the needs of our students. I also wish to
extend my personal appreciation for your continued support and commitment.
I hope you enjoy a relaxing summer.
Sincerely,
&VAR09
&VAR10
cc Manager College Payr
As indicated in Mr. Cruden's reply to the grievance, it is the College's position that those payments will not
prejudice any grievances filed with Mr. Teplitsky~ and that the amount received will only be disclosed to Mr.
Teplitsky in order to avoid double payment for the same work.
Although the Local disagreed with and objected to what the College proposed to do, the College proceeded to send
such memos (or letters similar in substance) to a number of academic employees at its Cornwall and Kingston
campuses. As indicated in the grievance, it is the Union's position that in doing so the College violated a number of
provisions of the Collective Agreement, including Article 4 which provides, in part, as follows:
4.01 (10) (a) Notwithstanding the above, overtime worked by a teacher shall not exceed one (1) teaching contact
hour in any one week or three (3) total workload hours in any one week and shall be voluntary.
4.01 (10)(b) Such teaching contact hour agreed to in excess of the respective weekly teaching contact hour
maximum shall be compensated at the rate of 0.1% of annual salary. Such workload hours agreed to in excess of
the forty-four (44) hour weekly workload maximum shall be compensated at the rate of 0.1% of annual salary. Such
overtime payments shall be for the greater amount but shall not be pyramided.
4.01 (10)(c) All such voluntary overtime agreements, which shall not be unreasonably withheld, shall be set out in
writing on the SWF for that period by the College and filed with the teacher and the Union Local within ten (10)
days. ....
The Union also contends that the situation is governed not by Article 5.01(2) but by Article 5.01(1), which reads:
A full-time employee who has completed one full academic year's service with the College shall be entitled to a
vacation of two (2) months as scheduled by the College.
It further submits that the College violated the Collective Agreement's recognition clause (Article 1) by dealing
individually with members of the bargaining unit, thereby circumventing their exclusive bargaining agent.
Some academic employees at the College's Brockville campus received letters which differed from the above
quoted memo that was discussed at the April 30 U.C.C. meeting. Professor Edith Gange-Harris, for example,
received the following letter (dated May 8, 1990) from the Chair of the Health Science Department:
This letter is written in response to your written request for either removal of a part of your scheduled workload or
overtime compensation for an excessive workload. It is fully recognized that you have little or no non teaching time
at the end of this semester.
Your principal, Jack and the Brockville Campus Management Team have made a decision to provide an immediate
recognition payment of One Thousand Dollars to faculty assigned to six hundred or more contact hours for the
1989/1990 school year. This recognition payment applies to ten of the Health Science faculty who are assigned to
teach classes and clinical placement to year one and year two nursing ~tudents. This does not address your
enquiries regarding the conditions of the Teplitsky Award.
This gesture is done in the spirit of non prejudice. Thank you for your patience and understanding while waiting for
this reply. Your continued co-operation and support are greatly appreciated. -
It is the Union's position that by sending letters inthat form, the College violated not only the aforementioned
provisions of the Collective Agreement (Articles 1, 4, and 5), but also Article 14.02. In this regard, the Union
invites us to find and declare that once the College had raised the matter at a U.C.C. meeting, it was not open for
the College to adopt a new position and act unilaterally on it without further discussion with the Local.
Approximately 2,800 grievances have been submitted to Mr. Teplitsky system-wide in respect of the Return to
Work Protocol, including about 150 grievances filed by academic employees at the College. Some of those 150
grievors are individuals who, having received payments from the College in the manner described above, are
claiming that those payments did not adequately compensate them for the time which they devoted to non-teaching
tasks following the strike.
In the summer of 1990 an arbitration board (the "Teplitsky Board") composed of Mr. Teplitsky, Warren Winkler,
and James Hayes, was constituted to deal with those 2,800 grievances. The Teplitsky ~oard met with the parties to
the Collective Agreement on two occasions to deal with matters of disclosure and production. It also determined
that it would receive written representations concerning all of the grievances.
Having duly considered all of the material before us and the able submissions of counsel, we have concluded that
the essence of the instant grievance pertains to matters regarding extra work arising out of the Return to Work
Protocol It is clear that the reduction or elimination of non-teaching time at the end of the semester resulted from
strike-related rearrangements of the work to be performed. It was that dearth of end of semester non-teaching time
which prompted the College to send out the memos and letters which gave rise to the grievance. As indicated
above, in order to avoid burdening the grievance arbitration system, Mr. Teplitsky remained seized to hear and
determine any grievances in connection with claims regarding extra work arising out of the Return to Work
Protocol. Thus, the determination of matters concerning the propriety and adequacy of the payments to which those
memos and letters pertain falls squarely within that retained jurisdiction, as does the determination of matters
concerning the College's disclosure obligations, if any, in respect of such payments and the circumstances which
gave rise to them. For this Board to hear and determine such matters would not only be inconsistent with Mr.
Teplitsky's retention of jurisdiction, but would also give rise to the possibility of an award by this Board creating a
situation in which employees affected by the grievance are dealt with differently than those whose claims are
resolved by the Teplitsky Board. As indicated above, that Board has before it approximately 2,800 grievances,
including about 150 from academic employees at the College. Thus, the Teplitsky Board will be in a position to
ensure that issues arising out of the Return to Work Protocol are resolved in a fair and consistent manner
throughout the Community College system.
Accordingly, the College's first preliminary objection is sustained. Under the circumstances, it is unnecessary to
comment upon the validity of any of the College's other preliminary objections.
For the foregoing reasons, the grievance is hereby dismissed.
DATED at Toronto, Ontario, this 5th day of June, 1991.
Chair
I concur.
"R. Hubert"
College Nominee
I dissent. G Majesky
Union Nominee