HomeMy WebLinkAboutNourse 91-01-10IN THE MATTER OF
THE COLLEGES COLLECTIVE BARGAINING ACT
AND
IN THE MATTER OF AN ARBITRATION
BETWEEN
SENECA COLLEGE OF APPLIED ARTS & TECHNOLOGY
(The Employer)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF THE GRIEVANCE
OF MR. BRIAN NOURSE
(The Grievor)
BOARD OF ARBITRATION:
C. Gordon Simmons, Chairperson
Allen Merritt, College Nominee
Gary Majesky, Union Nominee
APPEARANCES FOR THE EMPLOYER:
Ms. Carolyn Kay- Aggio, Counsel
APPEARANCES FOR THE UNION:
Ms. Susan Ballantyne, Counsel
A hearing was held in Toronto, Ontario into this matter on JanuaryÊ31, 1991.
At the commencement of these proceedings the Employer informed the Board that it had a
preliminary objection in that the Union had failed to file its grievance in a timely fashion. The
Employer relies on Article 11 to support its position. The relevant portions of Article 11 read as
follows:
11.02 Complaints
It is the mutual desire of the parties hereto 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 twenty (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 (7) days after
discussion with the employee.
11.03 Grievances
Failing settlement of a complaint, it shall be taken up as a grievance
(if it falls within the definition under Article 11.12(c) in the following
manner and sequence provided it is presented within seven (7) days of
the immediate Supervisor's reply to the complaint. It is the intention
of the parties that reasons supporting the grievance and for its referral
to a succeeding Step be set out in the grievance and on the document
referring it to the next Step. Similarly, the College written decisions
at each step shall contain reasons supporting the decision.
11.05 General
(a) if the grievor fails to act within the time limits set out at any
Complaint or Grievance Step, the grievance will be
considered abandoned; ...
It was agreed by the parties that the issue relating to the preliminary objection would be dealt with on
the date of this hearing and that we would proceed to the merits later if necessary.
The facts relating to this issue are as follows. On JanuaryÊ16, 1989, the grievor, a Teaching
Master - Business Studies, cancelled a class in which he was teaching because a student who had
arrived late for the class refused to leave after the grievor directed her to do so. On January 30, 1989,
another student arrived late for the class and when the student was reluctant to leave, the grievor
made a comment which apparently offended the student and his father.
On February 3, Mr. A.R. Tanner, Chairman - Business Division, wrote the following
memorandum to the grievor (Exhibit 1):
This will serve as written record of the fact that I have had to speak to
you twice this semester regarding two incidents of unacceptable
conduct in the classroom.
I am sure that you understand that a repitition [sic] of this type of
behaviour will not be tolerated.
On February 13, the grievor sent the following memorandum to Mr.ÊTanner (Exhibit 2):
In reply to yours of Feb. 3/89, your statements are in direct conflict
with my understanding of our previous discussions.
Apart from the fact that both incidents involve student punctuality,
they are totally different and unrelated.
As you have grouped them together as 'unacceptable conduct in the
classroom', it would be appreciated if you could be more specific so
that I am in a position to respond to your views.
We heard evidence to the effect that the grievor was seeking more information from Mr.
Tanner in order that he could be in a position to respond to Mr. Tanner's comments. The above
memo of February 13 is one indication of the grievor's search for additional information.
Discussions ensued between Messrs. Tanner and the grievor whereupon the evidence indicates that
Mr. Tanner was not going to put into writing any rules with respect to classroom management. Not
being satisfied with the information provided to him the grievor wrote a further memorandum dated
April 10, 1989, to Mr. Tanner which reads as follows (Exhibit 3):
As a result of the student's perception of acceptable punctuality and
conduct in the classroom, ONM121H was reluctantly
suspended/ cancelled after two warnings on Monday, Jan. 16/989.
This was the first time in my 8 years at the college that I found it
necessary to resort to this extreme measure.
Your subsequent handling of the matter has not resolved the problem.
I therefore wish to raise the following complaints pursuant to article
11.02 of the collective agreement.
1) You failed to recognize that there were two problems - late
attendance AND a defiant refusal in front of the class. You have
apparently supported the student's belief that any highway delay is a
satisfactory reason for lateness. As a consequence, she has repeatedly
interrupted the learning of her classmates to such an extent that some
students have complained to me about the administration's lack of
corrective action.
2) You have been unable or unwilling to transfer the student to
another QNM section in spite of my several requests for you to do so.
You have given me no reason for this, but have repeatedly suggested
to me that I tolerate her behaviour and allow this one student to ignore
the agreed classroom rules followed by all remaining students in the
class.
3) At no time have you supported my handling of the situation, nor
have you offered any practicable alternative solutions. Obviously,
you have not been present for any of the instances of unacceptable
conduct. Yet you have resorted to administrative second-guessing of,
and meddling in, classroom management.
4) Your Feb. 3/89 memo was inconsistent with out [sic] verbal
discussions up to that point in time. You do not feel obliged to
acknowledge or answer, verbally or in writing, my Feb. 13/89
response. Unless you are prepared to substantiate your charge in
writing, then I insist your memo be removed immediately from my
personnel file.
5) Similarly, you have not provided in writing, as you agreed to on
March 23/89, the new Business Division policy regarding class
cancellation and the calling of security. Your intent must therefore be
to provide different alternative means of enforcement for different
teachers.
6) You have threatened me, should I continue to enforce one set of
rules for all students in the class, with possible charges of racial
discrimination. Should you be able to produce any evidence
where my conduct would support such a charge, then please do so
immediately. Otherwise, withdraw the threat.
7) Finally, that you have on at least two separate occasions, made
unprofessional and uncomplimentary remarks about me to fellow
faculty members. I demand an apology and your assurance that there
will be no further repetition [sic] of such unacceptable conduct.
We also heard that Mr. Torcov, Union Steward, advised Mr. Tanner and Ms. Patricia Stoll, Dean,
Business Studies, that the grievor did not consider the matter resolved and requested a meeting to
discuss the grievor's concerns as set out in the grievor's memo dated April 10 (Exhibit 3). As a
result, a meeting followed on April 17 following which Ms. Stoll wrote the following memorandum
to the grievor (Exhibit 4).
April 18, 1989
As you requested in the attached memorandum I am writing to
provide you with more specific information on the two incidents
which A. Tanner referred to as 'unacceptable conduct in the
classroom' (see his memo of February 3, 1989).
On Monday, January 16, 1989 you cancelled the class of QNM 121H
after approximately 30 minutes of instruction. This was the second
scheduled class of the semester. The stated reason for your leaving
the classroom was that a late-arriving student (she had arrived
approximately 15 minutes late) had refused to leave the class as you
directed her to do. You have stated she was defiant in refusing to
leave the class. Both Tony and I have told you that we believe it
unacceptable classroom management to leave a classroom/cancel a
class as a first recourse to handing [sic] a problem with a student.
Further we believed that due to the poor weather conditions January
16, it was understandable that the student was late for class and
therefore should not have been directed to leave the class.
On January 30, 1989 another student arrived late for the 8:00 am
class. You directed this student to leave the class until the break.
You have agreed that, when the student said he didn't want to leave,
you said: 'I don't give a shit.' Both Tony and I have told you that this
language and treatment offended the student and disturbed him and
his father a great deal and that we do not believe your behaviour is
acceptable classroom conduct. In subsequent meetings with Tony and
me you have apologized for the inappropriate language.
As we agreed at our meeting o n April 17, 1989 I am directing both
this memo and yours of February 13, 1989 to your official personnel
file.
It is to be noted that Ms. Stoll did not state in her memo that the memo of MR. Tanner dated
February 3, 1989 would be removed from his file. Instead, the grievor was informed that his memo
of February 13 and hers of April 18 were to be placed on his personnel file. Further discussions
ensued but nothing was resolved and when the grievor became convinced in November that his
complaint was not going to be resolved, he filed his grievance dated November 29, 1989. It reads
(Exhibit 5):
GRIEVANCE - UNJUST DISCIPLINE
STATEMENT OF GRIEVANCE:
My grievance is that I have been unjustly disciplined.
REMEDIES REQUIRED:
1. A declaration from a Board of Arbitration that I have been
unjustly disciplined.
2. Removal of the memo of A. Tanner, dated February 3, 1989
and of the memo of P. Stoll, dated April 18, 1989 and of all
related notices and references relating to this matter from my
personnel file and from all other college records.
The response to the grievance from Ms. Stoll dated December 12, 1989, reads as follows (Exhibit 6):
This is to confirm that a Step 1 meeting was held on December 6,
1989 to hear your grievance. Attending the meeting were: B.
Nourse, grievor; L. Olivo, Chief Steward, OPSEU Local 560; P. Stoll,
Dean of Business; B. Cronin, Chairman - Business Studies.
Your grievance related to incidents in late January and early February
1989 and requests removal from your file of memoranda dated
February 3, 1989 and April 18, 1989. Since our meeting on April 17,
1989 you have not informed Mr. Tanner or me of any concerns
regarding these memoranda. Your grievance of December 1, 1989
does not fall within the time limits contained in Article 11.02.
The parties are in agreement that Article 11 of the Collective
Agreement stipulates certain mandatory time limits when grievances
must be filed. Indeed, the jurisprudence leaves no doubt about this
question. See Seneca College of Applied Arts & Technology and
OPSEU, Silberman Grievance, an unreported decision chaired by Gail
Brent dated July 3, 1982; Sinclair College of Applied Arts &
Technology and OPSEU - Murray Grievance, O'Shea chairman,
March 8, 1982; Seneca College of Applied Arts & Technology and
OPSEU, O'Neill Grievance, Gail Brent, chair, February 28, 1984;
Seneca College of Applied Arts & Technology and OPSEU and
Barrett Grievance, Brent chair, April 12, 1988.
The position of the Union is that the grievor was given conflicting signals with respect to
classroom standards. The evidence indicated that the grievor had been advised by Mr. Tanner that
the cancellation of the class on January 16 was not an appropriate response to a problem in the
classroom and that in appropriate circumstances security could be called. The grievor was seeking
written directions or instructions regarding how similar situations should be handled in the future.
The evidence further revealed that Mr. Tanner was not prepared to submit to writing rules that should
be followed. Furthermore, the grievor went on vacation during the summer months and was of the
belief or view that Mr. Torcov would be proceeding with his complaint. He wrote a memo to Mr.
Torcov on June 13 stating in part (Exhibit 11):
(1) I still wish to grieve PS + TT [Patricia Stoll and Tony Tanner]
interference in classroom management. I don't care what is going on
in another division.
(2) I also wish to grieve the Dean's latest memo in my personal
file. It is neither factual nor handled as per our meeting.
Finally, when the grievor returned following his summer vacation, he had a new supervisor, Mr.
Cronin, who was aware that the grievor was unsatisfied about what had been transpiring. In August,
Mr. Cronin enquired of the grievor if the matter was ongoing and gained the impression from the
grievor that he was going to pursue this matter in some fashion. The Union takes the view that this
was a tacit acknowledgment from management that the grievor was pursuing his grievance.
Therefore, it constitutes a tacit extension of the time limits for the grievance procedure. Finally,
there was a strike that occurred in November, 1989, and following the resolution of that strike the
grievor learned that there was not going to be a satisfactory resolution to his complaint and he filed
his grievance. The Union pursues the view that the vacation period and the tacit acknowledgment by
Mr. Cronin of the grievance and the intervention of the strike led the grievor to the view that his
complaint was going to be resolved in an amicable fashion and therefore he did not need to file a
grievance. It was only when he ultimately discovered that the Employer was not going to do
anything respecting his complaint that he filed his grievance. Therefore, according to the Union, the
complaint only manifested itself into a grievance when the grievor ultimately discovered that his
complaint was not going to be resolved in any other fashion.
The Employer disagrees and responds to the submissions of the Union i n the following way.
For purposes of determining when the seven day time limit
for the filing of a grievance has elapsed it is necessary to ascertain not
only when time starts to run, but also the period during which time
continues to run.
The part ies' intentions in this regard are clear, we submit,
from the collective agreement.
Article 11.12 defines the use of the word 'day' in Article 11 to
mean 'calendar day'. Consequently, the seven day time limit in
Article 11.03 expires 7 calendar days after the reply of the immediate
supervisor.
The time limits run irrespective of whether the individual
grievor is physically present at work or not. By referring to calendar
days the time limits obviously run on Saturdays and Sundays when,
presumably, a teaching master would not be at work. Similarly, time
would run during an individual's vacation period.
There is no reasonable basis upon which to assert that time,
for Mr. Nourse in particular, would not run during the months of
June, July and August. As Mr. Tanner testified, the College offers
courses year round in the Business Department. Teaching masters, of
the same classification as Mr.ÊNourse, would teach those courses
during the summer months. Those teaching masters are covered by
the same collective agreement as Mr. Nourse. Should any of those
teaching masters have a grievance arising during those months there
is no question that the time limits under the agreement would run
during those months. In fact, numerous grievances are filed during
the summer months. It would require express language in the
collective agreement to rebut the presumption that time limits run
irrespective of individual teaching schedules. No such language
exists.
Express language does exist, however, excludin g the period
from Christmas Day to New Year's Day (Article 11.05(d)). By
specifically enunciating that period when time does not run the parties
must be deemed to have intended that time would run on every other
calendar day.
Similarly, we submit that t ime also runs during the period that the
grievor was absent from work due to the strike in the fall of 1989.
The February 3rd memorandum was placed in the grievor's personnel file. The grievor
objected to having the memorandum placed in his file and sought to have the matter resolved. He
was seeking guidance when he could cancel classes and when he could call in security. During the
latter part of March he discovered that Mr. Tanner was not going to commit rules or guidelines to
writing. This caused the grievor to seek a meeting with the Dean. The meeting took place on April
17 and the Dean wrote a further memo to the grievor setting out management's position.
While it is apparent from the grievor's memo of June 13 to Mr. Torcov that he continued to
be upset and wished to grieve, no grievance was filed until November 29.
We agree with the position of the Employer that there was never a mutual agreement that the
time limits were to be extended. While the grievor may have believed that the matter would
eventually be resolved through agreement, the fact remains that he had a definite time period in
which to file his grievance. If we assume, without deciding, that the April 18 memo from the Dean
was the date when the time limits began to run, then the grievor had seven calendar days to file a
grievance. He failed to comply with that time limit. His memo of June 13 to his steward, Mr.
Torcov verifies his desire to grieve but this memo is approximately seven weeks following the April
18 memo and is not addressed to the Employer. His grievance is dated November 29 and it seeks to
have both February 3 and April 18 memos removed from his personnel file. If we take the Union's
position at its highest the date of the grievance is slightly over seven months from April 18.
Accordingly, the grievance must be and is dismissed due to being out of time.
Dated at Kingston, Ontario this ____ day of _____________, 1991.
C. Gordon Simmons
Chairperson
I concur/dissent
Allen S. Merritt
I concur/dissent
Gary Majesky