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HomeMy WebLinkAboutUnion 15-10-15IN THE MATTER OF AN ARBITRATION BETWEEN: Humber College -the employer - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 562 -the Union Union Grievance No. 2013-0562-0020 Concerning Full-Time Faculty Teaching Continuing Education Outside of the Collective Agreement Preliminary Objection Before: Kathleen G. O'Neil, Chair Ann Burke, College Nominee Edward Seymour, Union Nominee For the Union: Leslie Gilchrist, Counsel For the College: William J. Hayter, Counsel Hearing in Toronto, December 2, 2014 With written submissions completed by May 26, 2015 1 Award The union grievance before this Board claims that the employer is not entitled to contract individually with f ull-time faculty who teach continuing education (CE) courses, and that the work should be subject to the collective agreement, including being recorded as part of their Standard Workload Form (SWF). This decision deals with a preliminary objection raised by the employer, to the effect that the grievance deals with individual workloads, and is therefore inarbitrable because the expedited process in the collective agreement designed for the resolution of workload complaints was not used. For its part, the Union invites the conclusion that the Board of Arbitration has jurisdiction to hear the matter as a union policy grievance given the nature of the issues involved, and longstanding jurisprudence on the issue . The facts The grievance here in issue, filed under Article 32.09 of the collective agreement, reads as follows: We grieve that the College is in violation of, in p articular but not exclusively, Articles 1 and 11 of the Collective Agreement by negotiatin g with and arranging contracts with full-time faculty for work within the college and not recording that work on a SWF. Settlement Desired: 1. The College record all work assigned to faculty on the SWF. 2. The College cease giving extra work to full-time faculty that is not recorded on the SWF. 3. By way of monetary compensation, the College donate 5% of the money paid out to full-time faculty doing contract work since May 29, 2012, to a charity of the Union Local’s choice. 4. The College reimburse the Union Local for any monies owing from dues deduction. The employer called evidence to support its position that continuing education courses are not assigned in the same way as regular workload for faculty covered by the collective agreement. Carol Smith, for example, is a full-time faculty member teaching in the business school in the accounting program. When she wishes to, she indicates interest in teaching a night school course, by talking to the continuing education coordinator or director. She looks at what courses are available and what she would like to teach, and agrees to teach a certain c ourse for a semester, or decides not to, which she is free to do. There is then a separate contract, with pay rates different than those set out in the collective agreement. There has never been any 2 discussion with her about putting the continuing education hours on the standard Workload Form (SWF) provided for in Article 11 of the collective agreement. The documentary evidence shows that in June 2013, the Director of Professional and Continuing Education sent Ms. Smith a memo with a subject line “Fall 2013 Course Assignment”, asking if she would like to teach a particular accounting course and asking for disclosure of teaching assignments for other programs or departments. Sample contracts from 2012 use language indicating that the signature of the employee and the college will confirm the employee ’s appointment, which is important to the employer’s argument that the continuing education work is not “assigned”. By contrast, Ms. Smith testified that her regular workload, which is recorded on the SWF, is assigned in the sense that she is not free to say she is interested or not as she is with the continuing education courses. Ms. Smith testified that she finds teaching continuing education courses a convenient way to augment cash, and has taught such courses for several years. She chooses to teach at Humber, rather than other colleges in the Toronto area , where she is not a full-time faculty member, because she has an allegiance to the program at Humber. As well, many of the day students take night courses, which are credit courses, as well. There is no dispute that the employees teaching continuing education courses did not grieve the employer’s failure to record the hours on their SWF’s. Collective Agreement Provisions The lengthy relevant provisions of the collective agreement, including Article 1 – Recognition, Article 6 – Management Functions, excerpts from Article 11 - Workload, and from Article 32 - Grievance Procedure, are attached as Appendix “A” to this decision for ease of reference. Positions of the parties in brief The employer submits that the subject matter of the grievance relates to faculty SWF’s and what is incorporated there. Consistent with the individual nature of workload under Article 11 , it is the employer’s position that this is an issue intended by the structure of the collective agreement to be arbitrated by a Workload Resolution Arbitrator (WRA) under the workload resolution process set out in Article 11 of the collective agreement. Further, employer counsel notes that the collective agreement provides in Article 6 that assignment of workload is a unilateral exercise of a management right. 3 Alternatively, the employer argues that if the Board does not accept the idea that the plain language of Article 11 means that a grievance like this one has to go through the WRA process, Article 32.09 provides limits on a union grievance, s o that the union can only grieve something an individual could grieve if it involves an unreasonable standard, patently in violation of the collect ive agreement, and adversely affecting the rights of employees. Employer counsel submits that the conditions cannot be met in the circumstances of this case. It is the employer’s view that there is nothing patently in violation of the collective agreemen t, particularly as the faculty teaching continuing education do so of their own volition. There is no unreasonable standard, in the employer’s view, and no adverse effect on the rights of employees. Rather, the employer says it is the union’s position which adversely affects the rights of employees, as the result of the grievance is that Continuing Education hours are not going to full-time faculty. The situation where full-time faculty are able to have extra income while the College and students benefit from experienced faculty teaching the continuing education courses is described as a “win -win-win” situation by employer counsel. By contrast, the union is of the view that this is a proper union grievance because the employer is individually bargaining with employees, which amounts to a patent violation of the collective agreement, and applying an unreasonable standard by ignoring the provisions of the collective agreement, which necessarily has an adverse effect on employees. The union submits that where there is a proper union grievance under Article 32.09 of the collective agreement, the restrictions under Article 11 do not apply. Article 32.09 exists, in the union’s view, precisely because there are sometimes issues that are of considerable interest to the union that employees do not wish to grieve. The union is of the view that continuing education courses are covered by the collective agreement and ought to be treated like any other part of a professor’s workload, and appear on the SWF. Counsel submits that the law is not new, or in flux: members of the bargaining unit cannot be excluded from the bargaining unit for part of the day, and a ssigned hours must be recorded on the SWF. After the hearing of this matter, written submissions were received on the following case law: George Brown College and OPSEU - Benhaggai (Mitchnick), unreported decision dated February 16, 1993 ; La Cité Collégiale and SEFPO [the French for OPSEU], a decision of the current chair sitting as a sole arbitrator, dated August 6, 2014; Humber College and OPSEU (Shime) dated December 4, 2014, and the Divisional Court ’s decision in Ontario Public Service Employees’ 4 Union v. Humber College Institute of Applied Arts and Technology , 2015 ONSC 1963 (CanLII), all of which have been fully considered, together with the extensive case law canvassed at the hearing. The arguments of the parties will be further discussed below in the context of a consideration of the body of relevant case law, listed in Appendix “B”. Considerations and Conclusions As the case law in the College sector repeatedly observes, the sophisticated parties to this collective agreement have created a very detailed set of grievance procedures, with two main routes. In general, issues related to individual workload are intended to be dealt with in the particularly expeditious, non -precedential WRA process, while other issues are dealt with under Article 32, which contains provisions for individual, group, employer and union grievances. However, workload issues touch many issues that are broader than the individual issues that are intended to be resolved on a quick, non -precedential basis which apply only to the teacher who grieves. The jurisprudence on the subject recognizes that there is a permissible place for union grievances with workload implications. The question to be determined is whether the one before us falls into that category. A brief review of the case law referred to by the parties is necessary in order to understand the continuing controversy over issues which have surfaced in a variety of forms over the years. The most directly relevant line of case law starts with the decision in Fanshawe College and OPSEU, (Grievance No. 88B718 re Partial Contact Hours ) (Burkett), unreported, dated March 29, 1989. That decision dealt with a union policy grievance alleging that the college had breached the workload formula (at that time Article 4, now Article 11), by scheduling in blocks of 30 minutes, rather than 50 minutes as provided by the collective agre ement. Correction of the SWF’s of the affected employees was part of the union’s remedial request. The employer objected to the Board’s jurisdiction on the same two grounds as here: that workload complaints are to go to the WRA, and that the grievance f ailed to qualify as a proper union grievance. The Board dismissed the objection, on several grounds. The majority of the Board found that, in refusing to apply an award of a WRA which had found that the workload provisions required scheduling teaching hours in 50 minute blocks, the College was applying an unreasonable stand ard, patently in violation of 5 the agreement, which adverse ly affected the rights of persons in the bargaining unit. The Board further found that a union policy grievance was not barred by the provisions of the collective agreement regarding the WRA procedure, as it was the only means of ensuring general compliance with the threshold workload standards. The employer was successful in an application for judicial review at the Divisional Court, but, in a decision cited as [1994] O.J. No. 3697 (C.A.), the Court of Appeal overturned the Divisional Court’s decision and restored the decision of the Burkett Board of Arbitration. The Court of Appeal found there was no basis for judicial intervention, that the Divisional Court had wrongly applied a standard of review of correctness, and that the decision of the Board of Arbitration was not patently unreasonable. Next, over two decades ago, came the decision in Canadore College and OPSEU, an unreported decision of a Board chaired by Howard Brown , dated February 20, 1990. That decision dealt with a union policy grievance very similar to the one now before us. The situation complained of related to the use of full-time faculty members in Continuing Education courses in addition to their regular workload, without recording the work on their SWF’s, and at rates negotiated individually with the faculty members. As in the matter before us, the employer argued that the Continuing Education work was not assigned to the faculty, because the individuals had voluntarily chosen to take work outside of their regular teaching assignment. Unlike the situation here however, there was no objection to the jurisdiction of the Board to hear the matter under the gener al grievance and arbitration provisions. The decision deals with the merits of the employer’s argument very directly, finding that whatever the initial arrangement with the individual may be, the employer requires the work to be done and assigns the teach er to the Continuing Education course. Further, it finds that full-time faculty members in the bargaining unit are covered by the collective agreement and do not lose that “protection, benefit or obligation” at the end of the regularly assigned teaching hours during the day. Moreover, the decision finds that: There is no reason in our view to conclude that the maximum workload provided by the parties can be ignored by a voluntary arrangement to teach with individual members of the bargaining unit who voluntarily enter into an individual contract of employment with the College (pg. 17). … By not including the teaching hours in the SWF’s of the faculty member who perform such work in the Continuing Education program and by exceeding the workload limitations in Article 4, we find that there has been a violation of the collective agreement by the Employer (pg. 20) 6 This stands as a clear precedent on the merits of the grievance, which, as will be discussed below, is relevant to the consideration of whether this is a proper union grievance. In the unreported decision dated February 16, 1993, George Brown College and OPSEU- Benhaggai, OPSEU #91A209 and CoR #1993 -050, (Mitchnick), a Board of Arbitration considered the Canadore decision in the context of an individual grievance claiming that a teacher who had taught exclusively in continuing education should be recognized as covered by the collective agreement. The Board concluded that, in light of the history of the parties’ dealings on the issue and the collective agreement language, “pure” continuing education teachers were not covered by the provisions of the collective agreement. Nonetheless, the Board commented that the Canadore decision amply demonstrated that hours taught by employees already in the bargaining unit were not irrelevant to the collective agreement. Further, in a finding that pre-dated the decision of the Supreme Court of Canada in Weber v Ontario Hydro, [1995] 2 S.C.R. 929, the Board found that the issue of whether, despite the history of th e parties’ dealings, bargaining rights for pure continuing education teachers existed under the Colleges Collective Bargaining Act was not a matter for a Board of Arbitration. This decision is ultimately not of assistance in the determination of the preliminary issue, as it does not address the procedural aspects of union grievance rights. Thus, it is not necessary to detail or deal with the union’s further arguments about the meaning of the decision in the aftermath of Weber and more recent case law on continuing education such as the decision of Arbitrator Jesin in Algonquin College and OPSEU, unreported decision dated March 31, 2014, which found that continuing education hours were not excluded from consideration under Article 2 or any other article of the collective agreement other than Article 27. In the same line of cases as Canadore is a decision of a Board of Arbitration, again chaired by Howard Brown, at Fanshawe College, dated June 28, 1996. Like the case before us, the union grieved that the College had violated the workload provisions of the collective agreement when they assigned Continuing Education hours to faculty and did not record it on SWF’s. The employer made the same preliminary objections as dealt with by the Burkett Board in the 1989 Fanshawe College decision at the first day of hearing in 1991 , and the hearing was adjourned pending the then outstanding application for judicial review. The matter resumed in 1995, after the release of the Court of Appeal’s decision in 1994, at which point there was no issue in respect of the arbitrability of the union’s grievance. Observing that the award in Canadore should be binding upon the Fanshawe parties unless it was manifestly wrong, the Board found the employer 7 to be in violation of the collective agreement, and that it had ignored the Canadore decision at its peril. In doing so, it found that the workload language was unambiguous, and that the employer’s past practice of not applying the provisions of the collective agreement to Continuing Education was not of assistance in interpreting it. The decision also refers to a 1991 Fanshawe decision of Arbitrator Kruger which found a violation when full-time support staff were doing teaching work in addition to normal hours of work. The majority of the Board of Arbitration confirmed the applicability of the Canadore decision to the Fanshawe parties, and held that all teaching hours, including Continuing Education hours must be recorded on the SWF’s of members of the bargaining unit, and the maxima under the workload formula should not be exceeded. This is then a second clear precedent on the merits of the grievance before us. Then comes a clear precedent on the procedural question, a decision of a Board of Arbitration chaired by Jane Devlin in Seneca College and OPSEU, (Union grievance 97B542) dated June 5, 1998. The union grieved that the College was improperly assigning overtime to professors in violation of the workload formula , which had become Article 11 by that point. The College raised the same objections as before the Burkett Board in Fanshawe, and before us. The Devlin Board canvassed the previous jurisprudence, including Arbitrator Burkett’s decision in Fanshawe, and the unsuccessful judicial review application. The decision notes that although there was not a previous WRA award between the Seneca parties, there was a relevant decision of a Board constituted under s. 32. As well, the decision accepts the Burkett Board’s finding in Fanshawe that if the College’s interpretation were ac cepted, the union would have no means of enforcing threshold workload standards. Further, the decision follows a decision of Arbitrator McLaren at George Brown College which held that the workload provisions were not the appropriate foru m for broad union policy issues. In that case the broad policy issue concerned the scheduling of involuntary leave days under The Social Contract Act, and whether the hours on the SWF should be reduced by an amount proportional to the length of the involuntary leave. Arbitrator Devlin addresses all the issues raised in our case, in a manner favourable to the union, and traces the difference between cases that are properly dealt with in the limited fashion available under Article 11 and those with a structural or general un ion/management issue, which may follow the general arbitration procedure. In the result, the majority of the Devlin Board found, in the Seneca decision, that the workload provisions did not bar the union policy grievance, and that it was a proper union po licy grievance. The Board accepted that it was arguable that the scheduling of workloads in excess of the 8 overtime “ceilings” in the workload formula was an unreasonable standard, and arguably a patent violation of the workload standards, given a prior aw ard on the merits which supported the union’s argument. As to the third criterion for a proper union grievance, adverse effect on other employees, the Board found that the issue was not confined to the individual professors who had been assigned overtime hours, and thus concluded that the conditions were met for the grievance to proceed. The above case law arises in situations where the union grieved in the regular arbitration procedure, and describes several situations in which it was found permissible f or the union to launch a policy grievance, despite a factual base related to workload. Another way in which the union has pursued issues of general application related to workload is through the WRA procedure, with less success. That situation has been dealt with 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 (C.A.). In that judgment, 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 WRA process. The employer argues that the Court’s decision in George Brown College stands for the proposition that the grievance procedures under Article 11 and 32 are m utually exclusive, and that if the matter is workload, it must go the WRA route. By contrast, the union observes that the Court of Appeal did not use the word “exclusive” and specifically states at paragraph 30 that the Union may bring grievances under 32 .10 (now 32.09). Indeed, the College in that case conceded before the Court of Appeal and Divisional Court that the Union could bring workload grievances und er Article 32.09 if they met its strict criteria. The union submits that this is entirely consistent with the jurisprudence that predated this case, including the prior decision of the Court of Appeal in the Burkett Fanshawe case, and that it is therefore settled law that a grievance properly brought under Article 32.09 is immune from the restrictions in Article 11. Counsel observes that it has been determined twice by the Court of Appeal (Fanshawe and George Brown College) that the Union has the ability to bring such a grievance under Article 32.09. Having carefully considered the Court of Appeal decision in George Brown College, we find that it does not deal with the union’s right to bring a policy grievance, but only whether the union has the right to access the WRA process directly. We therefore no not find that it overrides the 9 Canadore/Fanshawe/Seneca line of cases which support the union’s right to grieve fundamental structural issues. A further example of an attempt to arbitrate workload issues with general implications, but by a group rather than the union, was dealt with in La Cité Collégiale and SEFPO, cited above. In that case a group grievance was filed by 91 professors under the Article 32 procedure for group grievances, rather than as a union policy grievance . The decision finds that the WRA procedure is the route intended by the part ies to be followed by a group of professors concerned about the attribution of hours for curriculum review, and thus the grievance under s. 32 was not arbitrable. Since the issue in dispute involved a group of individuals rather than the union as grievor, the decision does not deal with the issue here in dispute, and neither party to the La Cité matter argued the Fanshawe/Canadore/Seneca line of cases discussed above. Further, there is no comparable jurisprudence on the application of Article 32.08 dealing with group grievances, for which the criteria are very different than those for union grievances under Article 32.09 . Moreover, the employer conceded in the La Cité case that group grievances were permissible under the WRA procedure. Further, as union counsel noted, a group grievance is significantly different than a Union policy grievance. A group grievance deals with an “event” in which “more than one employee is directly affected by one specific incident and such employees would be entitled to grieve.” By contrast, for a proper grievance under Article 32.09 the union must show that 1) an individual employee has failed to grieve, 2) there is an unreasonable standard, 3) there is a patent violation of the Collective Agreement and 4) that it adversely aff ects the rights of employees. In Humber College and OPSEU, an unreported decision of Arbitrator Shime dated December 4, 2014, the Board of Arbitration dealt with a union policy grievance claiming that the College had created inequitable assignments for probationary faculty, by failing to assign sufficient hours to complete the Teaching Effectiveness Program, and requested the assignment of additional hours for this purpose. The employer objected that it was not a proper union grievance, and the union argued that the College had waived any procedural objection. The decision finds that the clear intent of the parties is to separate the specified workload procedure from the general grievance procedure in a meaningful and distinct way. The Board was of the view that the policy grievance, which alleged a violation of Article 11.02c (which refers to the functions of the Workload Monitoring Group, including reviewing apparent inequitable assignments) had been brought contrary to 10 Article 11.02 A6(a) and (b). Th at article details the teacher’s right to refer a workload complaint to the WMG and the WRA procedure, and provides that grievances with respect to Article 11, Workload, other than 11.01, 11.02 and 11.09 (the sections which provide the details of the limit s on workload and the WMG/WRA dispute resolution process) shall be handled under the regular grievance procedure under Article 32. The Board found that workload is an individual matter, was not the proper subject matter of a union policy grievance under A rticle 32, and that any alleged violation of the workload provisions may be brought by an individual teacher. There is no discussion of the Canadore line of cases, or any other named jurisprudence, although there is the statement that “none of the cases referred to by the parties specifically deals with the distinction between the two separate procedures which are the subject of this award”. The Board states that the waiver alleged by the union in the general grievance procedure cannot confer jurisdiction on an arbitration panel constituted under Article 32 to determine a workload matter, where the clear intent of the parties was that a WRA do so. Finding that this distinguished the case from situations where waiver occurred in the general grievance proced ure leading to the arbitration board being properly seized, the Board upheld the preliminary objection. The next major decision is that of the Divisional Court in Ontario Public Service Employees Union v Humber College Institute of Applied Arts and Techno logy, 2015 ONSC 1963 (CanLII). The Court was reviewing the decision of a Board of Arbitration which heard a preliminary objection to a grievance claiming that the College had allowed probationary faculty to enter and remain in overtime situations, in violation of the workload formula. The majority of the Board found that the matter should have been referred to the Workload Monitoring Group. The Court quashed the award and remitted the matter to a differently constituted arbitration board, on the basis tha t the reasons were inadequate, partly because they did not analyze the substantial case law argued before it, which includes much of the jurisprudence argued before us. The Court specifically commented that the Board had not engaged with the union’s argume nt about the circumstances in which a union policy grievance would be appropriate, and had not discussed the Devlin award in Seneca College or the Burkett award in Fanshawe College or made any attempt to distinguish them. The Court made no finding on the merits of whether the three conditions for a proper union grievance in Article 32.09 had been met or whether Article 32 was properly invoked in the circumstances. With that background, we return to the preliminary objections. The employer argues that the exclusive route for grievances which involve Articles 11.01, 11.02 or 11.09 is the WRA process, 11 where the teacher must initiate the workload complaint. It is the employer’s position that, given the parties’ choice for a separate grievance procedure for t hat subject matter, in which the union may not grieve, the union is unab le to grieve, even under s. 32. Counsel urges this Board to find that the decisions which have found otherwise are simply wrong. The employer submits that the starting place for the a nalysis must be in Article 11, asking the question whether the grievance represents a difference arising from the interpretation, application or administration of Article 11.01, 11.02 or 11.09, to which we now turn. Certainly, the grievance claims a bre ach of Article 11, albeit along with Article 1, when it describes the issue as follows: We grieve that the College is in violation of, in particular but not exclusively, articles 1 and 11 of the Collective Agreement by negotiatin g with and arranging contracts with full-time faculty for work within the college and not recording that work on a SWF. We note that it is Article 11.01A which provides that a professor’s workload shall adhere to the provisions of Article 11, and Article 11.02 A2, which provides that the SWF shall include all details of the total workload. For the employer, that is the crux of the matter: once there is a component to the subject matter relating to Articles 11.01, 11.02 or 11.09, the union has no grievance rights, even for a breach of Article 1, the recognition clause. By contrast, the union argues that it is clear foundational law that the employer is not entitled to individually bargain with employees covered by the collective agreement, and that it is not a reasonable interpretation of the collective agreement to find that the union is not able to grieve such an issue. In the union’s view, what this case is about is that the employer has bargained a discounted flat rate for teaching work with full-time members of the bargaining unit. In doing so, it has been ignoring the workload limits set out in Article 11, and the threshold requirement that the total workload be on the SWF. Union counsel submits the threshold issue is: are all the bargaining unit’s professors’ hours on the SWF or not? In the union’s view, that is a threshold issue of the type which Arbitrators Burkett and Devlin have found to be arbitrable, despite the provisions in Article 11 for individual workload issues to go to the WRA process. As well, the union submits that if permitted, the violations would extend far beyond the workload provisions, to the pay scale and overtime provisions. 12 The general arbitral jurisprudence is clear that precedents arising between the same parties should be followed by subsequent a rbitrators unless they are found to be manifestly wrong. See, among many others, the remarks of Arbitrator Brown in his Fanshawe decision, discussed above. Essentially employer counsel is asking us to find that the Canadore/Fanshawe/Seneca line of cases is manifestly wrong, when he invites the Board to prefer the reasoning in the dissent of Canadore and to find that the two arbitral routes are mutually exclusive. However, we do not find that line of cases to be manifestly wrong, and it is our view that they have stood the test of time, both substantively, and in light of the fact that the parties have not re - negotiated the most relevant language despite several opportunities to do so . We find the interpretation set out in those cases to be the most har monious reading of the provisions of the collective agreement read together, including the individual grievance procedures under Articles 11 and 32, contrasted with the provisions for union policy grievances under Article 32.09, as discussed below. Further, the employer argues that because the Burkett Fanshawe award was only saved at the Court of Appeal by the patently unreasonable standard, it should not be considered correct. We are urged to follow the Divisional Court’s reasoning that it was incorrect, and decline to follow it. We are of the view that it is not appropriate to ignore the Court of Appeal’s finding that there was no basis for judicial intervention, which has the result that it is a standing, binding arbitral award, subject to the “manifestly wrong” standard discussed above. The line of cases which the employer asks us to prefer as in conflict with that line of cases are distinguishable on the facts, the arguments made and/or their jurisprudential foundation. We will address them in more detail below, but first it is appropriate to outline our rationale for agreeing with the decisions of Arbitrators Burkett and Devlin in the Fanshawe and Seneca decisions, which raised issues very similar to the one before us . Most importantly, the decisions in Fanshawe and Seneca give a purposive interpretation to the structure of the detailed grievance procedures within the context and structure of other provisions of the collective agreement. Both decisions note the limited, individual nature and design o f the WRA process, juxtaposed with the clearly expressed intention of the parties for consistent application of threshold standards for all teachers within the academic bargaining unit, and the 13 existence of Article 32.09, designed to allow the union to enf orce broad Union policy issues in appropriate circumstances where individuals do not grieve. A review of the details of the WRA process set out in the workload clause, juxtaposed with the provisions under Article 32, demonstrates the central intention to structure things to provide opportunities to get answers to questions from teachers about individual workload in time for the SWF to be finalized before the contested workload is worked. This can be seen from the time frames set out there, starting with the fact that SWF’s are to be prepared 6 weeks in advance of the period covered by the SWF [Article 11.02A1(a)]. This is followed by very short time limes - 3 days for the teacher to indicate disagreement [Article 11.02A4], then 14 days to discuss the disagreement with the supervisor and 7 day s for the supervisor to respond, and a further 7 days to refer the matter to the WMG [Article 11.02 A6(a)]. The WMG is to meet where feasible within a further week [11.02 D1], and the teacher has a week from notificat ion of the decision of the WMG to refer the matter to the WRA, who is to convene a hearing within two weeks of the referral and render a decision within ten working days. The default effect on the teacher of not referring the matter on is deemed agreement. Th e targeted time lines may not always be met, or produce an answer before the start of the term in question, but their design speaks clearly to the parties’ intent to encourage just that. Most significantly for our purposes, the decision of the WRA then “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 beginning of the workload assignment”. As Arbitrator McLaren found in George Brown College and OPSEU, unreported decision dated February 7, 1995, cited in approval by Arbitrator Devlin in Seneca College, Article 11 is not set up to deal with broad policy questions with the union. Despite the fact that t here may well be implications on individual workload grievances that go through article 11, the majority of the McLaren panel found that broad policy issues were intended to go through Article 32. A majority of the Burkett panel came to a similar conclusion, looking at the structural limitation of the application of the WRA procedure to the individual teacher or teachers, and for only twelve months, when the term of the collective agreement was longer than that. This mismatch supported the finding that it could not have been the intention of the parties to set out clearly defined threshold standards on one hand, and then deny the union the means to obtain the ir consistent application across the bargaining unit for the duration of the agreement, which would open the door to the application of different standards f or different teachers. This is consistent with one of the basic structural components of a collective 14 agreement, a fixed term during which the parties will know what standards are to prevail for that whole period of time, and will have a dispute resolutio n mechanism to ensure their mutual respect, in lieu of economic sanctions. Employer counsel argues that virtually any aspect of Article 11.01 or 11.02 could be characterized as a threshold issue in order to overrule the dispute resolution provisions of A rticle 11. It is true that there will be many cases in which the line between a threshold and individual issue will be fine. However, in the circumstances of this case, the particular constellation of circumstances has already been determined to raise iss ues that are properly considered threshold issues that are much broader than the details of individual teachers’ workload. Employer counsel argues that the special situation dealt with by the Burkett Board’s Fanshawe decision distinguish it and limit its precedential value. These included that the issue in dispute had already been through the WRA procedure and th at the College was not giving general application to the finding of the WRA, which was consistent with the union’s interpretation. As well, the union had been unsuccessful in getting individuals to grieve . We do not find these considerations to be of isolated importance or anomalies that limit the persuasiveness of the award as a precedent. Rather, they are clear, real-life examples of the effects of the interpretation which the Fanshawe and Seneca decisions found to be an unsound interpretation of the language used by the parties, in light of the structure of the collective agreement and applicable legislation. We have carefully considered t he line of cases which the employer argues should be preferred as providing a correct reading of the collective agreement. These are decisions which have found that workload grievances are required to go through the WRA process by way of an individual teacher’s grievance, but we do not find that they are determinative of the issue before us. These include the very recent decision of Arbitrator Shime in Humber College, which dealt with a union grievance claiming there was in adequate attribution of hours for the Teacher Effectiveness Program. This kind of essentially quantitative issue is factually distinguishable from the one before us, which alleges individual bargaining with full-time members of the bargaining unit, and the absence of recognition of teaching hours on the SWF’s of full-time members of the bargaining unit. Like the Devlin Board in Seneca, Arbitrator Shime found that a reference to Article 6, the management rights clause, was not sufficient to avoid the workload procedure for a grievance which properly falls under the workload provisions. Unlike the Devlin Board, however, and without addressing the Seneca or Fanshawe decisions (which may not have been argued before the 15 Shime Board), or the conditions outlined in Article 32, the Shime Board’s decision in Humber College decision goes on to find that “since workload is an individual matter which is individually assigned for specific courses in specific faculties, any violation of the collective agreement is of an individual nature and not the proper subject matter of a union policy grievance under Article 32.” More will be said about this aspect below. However, the fact that the decision deals with a quantitative aspect of particular faculty workload, and does not address the case law argued before us, which we find to be directly on point in terms of the issue before us as to whether Article 11 ousts the jurisdiction of any section 32 board, makes this less persuasive as a precedent than the Burkett Fanshawe and Devlin Seneca decisions. In George Brown College and OPSEU (Hlinka), dated September 29, 2004 Arbitrator Kaplan found that the union could not access the WRA process under s. 46 of the Colleges Collective Bargaining Act, but left open the possibility that Article 32 could give the union access, particularly where the union alleged a “special deal with an individual teacher in stark violation of the workload provisions of the collective agreement”. This decision was not faced with the same issue as the one before us, but its obiter comment is supportive of the results in the Burkett Fanshawe and Seneca decisions. The employer also mentions Cambrian College and OPSEU (Teplitsky) unreported, dated October 28, 1988. The Teplitsky Board of Arbitration found that the union could not grieve the member’s workload grievance, but did not indicate what specific issue was raised, so it is difficult to comment on how applicable or similar the situation was to the one before us. As well, the Cambrian case was decided before the Fanshawe/Canadore/Seneca arbitration awards, and before the Court of Appeals’ decision upholding the Burkett Board’s Fanshawe decision. Further, we do not find that the Court of Appeal’s more recent decision in the George Brown College case changes the legal landscape to ef fectively reverse the same Court’s decision in Fanshawe. In George Brown College, the Court was dealing only with the question of whether the union could initiate a grievance within the WRA process, not with whether the WRA process was a bar to the use of the Article 32 process for the types of issues dealt with in Canadore, Fanshawe and Seneca. Significantly, those decisions are not even mentioned by the Court of Appeal in George Brown College. This is despite the fact that the Divisional Court’s decisio n, cited at 2002 CanLII 10719 (ON SCDC), briefly referred to the Court of Appeal’s decision upholding the Burkett Board’s decision in Fanshawe in the context of noting the parties’ 16 agreement that the George Brown grievance was not one for Article 32. The Court does not find that the Article 11 process is exclusive, completing ousting s. 32 for any grievance with workload implications. Rather the Court mentions Article 32 as evidence that, in the right circumstances, the union has access to dispute resolu tion. Thus, we do not find that the courts have found that the two streams are completely mutually exclusive. Nor does the arbitral case law stand for that proposition, including the La Cité and Kaplan George Brown decisions. Where arbitrators have clearly expressed an opinion about whether the union is to be left without any recourse to defend the principle that the employer is not to bargain individually or apply different pay and other standards to different teachers, the answer has been that a union p olicy grievance is available if the conditions are met. Another aspect of the employer’s argument was that it is the substance rather than the form that governs the characterization of a grievance, which we accept. For instance, in La Cité, the fact that the grievance did not mention Article 11 did not prevent a finding that the group grievance, in which 91 professors claimed recognition for attendance at curriculum review meetings, was essentially a workload grievance of individual professors, albeit in a very large group. There was no suggestion of individual bargaining, or of bypassing the bargaining agent. By contrast, although the grievance before us explicitly alleges a breach of Article 11, we find its predominant substance to be a claim of breach of the exclusivity of bargaining rights, and individual bargaining with members of the bargaining unit for terms different than those provided in the collective agreement. We find this to be consistent with the recognition in earlier jurisprudence that there are two related, but nonetheless separately identifiable collections of interests in the collective agreement, both of which may be engaged by the same set of facts, as discussed in Humber College and OPSEU, a decision of a Board of Arbitration chaired by Stanley Schiff dated March 25, 1989, dealing with a dispute over whether work belonged within or outside of the bargaining unit. This idea is discussed on pg. 11 in Loyalist College and OPSEU, unreported decision of a Board of Arbitration chaired by the current Chair, dated October 19, 2000, in regards to the conditions for a proper union grievance under Article 32 , cited in a number of the decisions relied on by the employer before this Board. The quotation from the Schiff award, set out in the Loyalist decision, is worth repeating here: 17 In other words, the College’s promise in the collective agreement to have defined work performed by employees in the bargaining unit runs to both individual employees and the union. An individual on the one hand, and the union, on the other, may rightly grieve to enforce the promise within the scope of the particular interests the agreement creates for each. As discussed in the Loyalist decision, there are some disputes, such as those over the contour of the bargaining unit, in which the separation between the collective and individual interests are quite easily visible, and others where it is less so. It is our view that the issue concerning recognition and individual bargaining for terms which are less advantage ous than those of the collective agreement is an aspect of the situation before us which is quite clearly of collective interest to the union as the exclusive bargaining agent for all the employees. This interest is broader and distinct from the limited pecuniary interest of the individual members of the bargaining unit who have entered into separate part -time teaching contracts which would be at odds with their grieving the individual workload implications. In this context, we find that the main dispute here does not arise from an interpretation application, administration or alleged contravention of 11.01, 11.02 or 11.09 , the basis of the WRA dispute resolution process in Article 11.02A6(a). It mainly “arises” from the recognition clause. Employer counsel argued that the College was free to offer continuing education teaching hours to members of the bargaining unit, at the salary rates applicable to part -time, rather than full-time teachers. Further, it was argued that if those terms were accepted by the individual, rather than the union, the teacher would be appointed, not assigned, to those duties, and thus they were not required to be recorded on the SWF, or otherwise dealt with according to the collective agreement. In our view, it could not be clearer that this raises an issue under Article 1, the recognition clause, which is not the kind of issue for which the limited dispute resolution provisions of the workload formula was designed. It is not suggested that an individual member of the bargaini ng unit, rather than the union, is free to reject or accept any other term of the collective agreement than Article 11, including Article 14 which sets pay rates, with no union grievance rights. In our view it would take much clearer wording than that fou nd in Article 11 to find that the union had nothing to say about individual bargaining in regard to such major issue s as to whether the workload provisions and pay rates apply to members of the bargaining unit for all of their work for the College. Part of the employer’s argument was that the wording of Article 11 accomplished exclusivity by plain language which mirrors the language in Article 32 and the statute. The statute, The Colleges Collective Bargaining Act, provides as follows in s. 14: 18 Arbitration provision 14. (1) Every collective agreement shall provide for the final and binding settlement by arbitration of all differences between an employer and the employee organization arising from the interpretation, application, administration or alleged contravention of the agreement, including any question as to whether a matter is arbitrable. 2008, c. 15, s. 14 (1). This language is mirrored throughout the provisions of the collective agreement in relation to grievance and arbitration, and does not resolve the question here. Most basically, it is part of the definition of a “grievance” in Article 32.11 C. Article 11.02 A 6(a), starts with the wording “in the event of any difference arising from the interpretation , application, administration or alleged contravention of 11.01, 11.02 or 11.09…”. Similar wording can be found in Article 32.02 which describes the other individual grievance procedure in the collective agreement. In the portion of Article 32.02 referring to Step Two, the language “in the event that any difference arising from the interpretation, application administration or alleged contravention of this Agreement has not been satisfactorily settled” appears, and is followed by the process for referral to arbitration. In Article 32.09 similar wording appears again, giving the union the right to file grievances based on a difference directly with the college “arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreeme nt.” It then outlines the conditions which limit that right. The employer’s argument would effectively require us to read in an additional condition, to the effect that any grievance which has an element of workload in its factual basis is precluded from the purview of Article 32.09 whether or not it meets the three conditions set out there. We are not persuaded that this was the intention of the parties. Employer counsel also argued that if allowing the union to refer a grievance to the WRA under Article 11 in the George Brown College case is “reading in a term” to the agreement that is “contrary to the ‘clear provision’ rule established in Sisters of St. Joseph”, then allowing the union to “override” the provisions of Article 11, or “immunizing” Articl e 32.09 from the effects of Article 11 is just as surely an amendment to the collectiv e agreement. We do not agree, because the issue here is quite a different matter than the one facing the Court of Appeal in George Brown College. The Court found that the W orkload Resolution Arbitrator had written in an access provision to the WRA process which was not in the collective agreement. By contrast, Article 32.09 is the parties’ writing, which must be given meaning in light of the standing case law and the other provisions of the collective agreement. In this context, we do not find that mutual exclusivity has been accomplished by clear wording, as the employer argues. The essential 19 distinction to be made under 32.09, in our view, as discussed below , is whether there is a difference directly with the employer, and then whether the other conditions in Article 32.09 are met. In the result, for the reasons set out above, in addition to those set out in the Fanshawe (Burkett) and Seneca (Devlin) decisions, we do not find that this is a grievance that is required to go by way of the individual WRA procedure, and that portion of the employer’s objection is dismissed. We turn then to the question of whether it is a proper union grievance under Article 32 .09. Looking at the issue from the perspective of Article 32 .09, it can be seen that the purpose of the clause is to provide a mechanism to resolve differences the union has “directly with the College”. The wording which follows carefully circumscribes the right of the union to grieve anything upon which an employee would be personally entitled to grieve, unless the triple conditions articulated there can be met: an unreasonable standard, patently in violation of the agreement, which adversely affects the rights of e mployees. The grievance is dealt with at a high level, consistent with the nature of the difference being directly with the college. It goes from the Union Head Office or Local President directly to the Director of Human Resources, o r the Director’s designate. This is usefully contrasted with the provisions of Article 11.02 A6 (a) which describe a difference between an individual teacher and the supervisor over the details of the SWF, and the individual complaint and grievance process described in Article s 32.01 and 32.02 which require discussion with the immediate supervisor and a written grievance to the supervisor before the matter proceeds further. From this perspective, the first question is: does the grievance raise a difference directly with the College? We find that it does, in that there could not be a n issue more “directly with the College” than whether the College can bypass the union to individually bargain rates for teaching work with members of the academic bargaining unit. The second question is whether the grievance includes any matter upon which an employee would be personally entitled to grieve. We find that it does, in that the affect ed professors could have grieved the failure to record the continuing education hours on the SWF, or the fact that they were not being paid collective agreement rates for those hours. 20 However, the portion of the grievance related to the recognition of the union as the exclusive bargaining agent does not appear to be one that an individual could grieve, although the parties did not specifically address that question. Article 1 is a clause that is particularly aimed at collective union interests rather than individual ones , and we do not find that an individual is in a position to enforce the collective issue here at stake. We note the reference in St. Lawrence College and OPSEU, an unreported decision of Arbitrator Starkman dated November 21, 2011, to the decision in Northern College and OPSEU, [1992] O.L.A.A. No. 840 (Shime) to the effect that issues concerning the scope of the bargaining unit were not matters which could have been grieved by individual employees. As well, the Starkman decision notes that where an issue has broad application to the bargaining unit, arbitrators have generally allowed union p olicy grievances to proceed. In our view, a llowing the union to pursue the similarly structural issue of individual bargaining would not bypass the individual grievance procedure under either Article 32 or Article 11. Nonetheless, since there are some aspects of the grievance that an individual could grieve, t he remaining questions are whether there is a prima facie case of the three limiting elements: an unreasonable standard, a patent violation of the collective agreement, and an adverse af fect on the rights of employees. These questions were all answered in the affirmative in the Seneca and Fanshawe (Burkett) decisions discussed above, in the face of preliminary objection s structured in a very similar manner to the one before us. As to whether there was an unreasonable standard, those decisions relied on the fact that there was a precedent favouring the union’s interpretation on the merits, as well as the idea that the employer was asserting the right to schedule overtime in excess of the standards in the collective agreement. Here, the very similar allegation is that contractual standards are being bypassed through individual negotiation with members of the academic bargaining unit and the employer is applying non-collective agreement standards in regards to both workload and pay. As well, it is argued by the union that it is unreasonable to apply a standard which effective ly says that for a certain portion of their teaching day, a professor is not part of the bargaining unit , and/or that a professor can be simultaneously full-time and part-time. Given the clear precedents of the Brown decision in Canadore and Fanshawe, these two claims qualify, in our view, as a prima facie case of the application of an unreasonable standard, and a violation that is patent, or clear on its face. 21 We have carefully considered the employer’s submission that t he union’s claim to “patent violations” is conclusory. Employer counsel argued that if one starts from the point of view that the work in question is part of the faculty’s regular assignment; then of course it follows that it is bargaining with the individual, and all the things that the union suggests. Conversely, if one starts with the proposition that it is an appointment accepted by the employees of their own volition, then there is no breach of anything. The context for employer counsel’s submission that the continuing education program is not covered by the collective agreement , is article 27.16, as well as its submissions to the effect that the majority decision in Canadore is simply wrong, with which we have dealt above. In the employer’s view, the competing interpretations mean the violation is just an arguable, not patent, violation. We underline that we a re at the stage of a preliminary objection, where the union does not have to completely make out its case ; what is required is a prima facie case for a patent violation. As part of this, the validity of the defense of the employer on the merits is not to be determined at this stage. The decisions of the Brown Boards in Fanshawe and Canadore, although not at Humber College, are very clear precedents to the effect that the restrictions on teaching hours that could be assigned to members of the bargaining unit cannot be ignored in the case of Continuing Education teaching hours, and that the employer’s interpretation to the effect that continuing education hours are not assigned because of the manner of contracting with the individual employee is not a correct interpretation of the parties’ collective ag reement. The majority’s interpretation gives the word “assigned” meaning consistent with the fact that employees may volunteer all they want, but unless the employer actually assigns the work to them, they will not be doing it. Further, the Fanshawe decision finds that the employer had ignored the Canadore decision at its peril, essentially reinforcing the fact that the language in the collective agreement is to be interpreted consistently across the college sector. Similar to the Devlin decision in Seneca we find such clear precedents to be a sufficient basis to find that there is a prima facie, arguable, case of a patent violation, despite the employer’s disagreement. We have considered the cases filed by the employer which find that particular grievances did not show a patent violation, such as Durham College and OPSEU, 2012 CanLII 66574 (ON LA) dated November 1, 2010 (Knopf), but note that there is no indication of the clear precedents on very similar grievances that we have before us. On the other hand, there is a case like St. Lawrence College and OPSEU, an unreported decision of the majority of a Board chaired by Arbitrator Leighton, dated April 13, 2012, where the fact of a decision in a very similar situation 22 going against the union`s submission that there was a patent violation was reason to uphold the employer`s objection. Further, counsel for the employer argues that it cannot be an unreasonable standard, as it is an arrangement outside of the collective agreement, and because the arrangement testified to by Ms. Smith benefits full-time employees by allowing them to earn extra money if they so choose. For its part, the union argues that it is by definition an unreasonable standard to apply different pay and workload standards to members of the bargaining unit than those in the collective agreement and to individually bargain those standards. Again, in line with the Burkett Fanshawe and Devlin Seneca decisions, we find that there is a prima facie case of the application of an unreasonable standa rd, i.e. the application of individually negotiated non- collective agreement standards to members of the bargaining unit. As to adverse effect on the employees, the employer argues that it is not a result of the practice of the employer, but in the wish of the union to deprive employees of the extra cash they earn doing continuing education work. Counsel for the College says that it is incorrect to assume that the work in question would be overtime for full-timers if it is held to be covered by the collective agreement; full-time people will just be excluded from doing the work, as has happened in the interim since the grievance. By contrast, as to adverse effect on the employees, the union argues that employees who are getting paid less than collective agreement rates for the work are adversely affected. Further, employees are entitled to have their hours on the SWF so that everyone knows what the true total workload is. The union notes that the current situation hides part of the workload, and thus ignores the collective agreement provisions setting out a ceiling over which professors are not expected to work. The design of the collective agreement includes an intention that the union be able to monitor workload and advise its members. In the result, th e role of the union is undermined as well, so that the members of the bargaining unit do not have access to valuable union advice on this part of their workload, another adverse effect , in the union’s submission. Given the case law discussed above, we accept that the effects submitted by the union are sufficient to establish a prima facie case of adverse effects, of broad application to the membership. As well, we have no doubt that it would have an adverse effect on members of the bargaining unit if we were to set a precedent to the effect that the union is able to be bypassed with no recourse on the issue of individual bargaining . 23 The circumstances of this case are quite different from the ca ses filed by the employer in which the facts were found to only affect specific individuals such as in Fanshawe College and OPSEU, an unreported decision of a Board chaired by Arbitrator Brown dated October 30, 2009 or, “one off” circumstances, such as in Fanshawe College and OPSEU, an unreported decision of Arbitrator Knopf , dated December 10, 2007, where one professor was allowed to teach during a professional development leave for essentially compassionate reasons. Therefore, we are of the view that the grievance meets the conditions set out in Article 32.09 *** To summarize, this is not a matter of first impression, either substantively or procedurally. W e find that the most harmonious reading of the language of the collective agreement in light of the case law to date is that the union is permitted to grieve under s. 32.09 concerning issues directly between it and the College, if the three conditions set out there are met, even if the grievance has workload implications. Further, we find that those conditions are met in the circumstances of this case. It is our view that this approach gives meaning to both streams of grievance procedure, in light of the interests of both the union and the individual faculty expressed in the collective agreement. No doubt there will continue to be issues concerning where the boundary lies between matters that are differences directly between the union and the College which are proper union grievances despite workload implications, and those that are more clearly questions of individual workloads that were intended to be dealt with in the informal, accelerated, non-precedential manner of the WMG/WRA process. One can anticipate that the jurisprudence will continue to evolve on a case by case basis, as it has in the past. 24 Accordingly, the employer’s preliminary object ions are dismissed and a majority of the Board finds that the case may proceed on its merits. The Board remains seized for this purpose and will set dates on the request of either party. Dated at Toronto this 15th day of October, 2015. ________________________________ Kathleen G. O’Neil, Chair ___I dissent – reasons attached_______ Ann Burke, College Nominee ___I concur ________________________ Edward Seymour, OPSEU Nominee 25 DISSENT I have now had an opportunity to review the reasons of the majority of the Board in this matter and with great respect, I feel I must dissent. In essence, the grievance turns on the fact that the Union has been unable to find an individual professor who wishes to file a grievance concerning work they volunteered to do in the continuing education department. Article 11 of the collective agreement sets out in great detail the rights of the College and professors as it relates to teaching “assignments”. It is the College’s right to make teaching “assignments” pursuant to art. 6, within the limitations set out in article 11. That is, the College may require professors to perform certain teaching contact hours. Article 11 speaks to the total workload which may be “assigned” by a College to its professors. Individual professors are provided with the right to take issue with such “assignments”, pursuant to the provisions of art.11.02, to the extent that the assignments exceed the limitations set out therein. Art. 11.02 A 6 (b) sets out a mandatory and exclusive basis for the resolution of disputes relating to arts. 11.01, 11.02 and 11.09, arising from a professor’s “assigned” workload. Art. 11.02 A 6 (b) is clear in stating that such matters are not to be heard by boards of arbitration constituted pursuant to article 32. Art. 32.09 also indicates in clear terms that union grievances are to be restricted in as much as the union cannot grieve a matter which can be grieved by an individual professor unless all three conditions precedent set out therein have been met i.e. an individual has failed to grieve and unreasonable standard that is patently in violation of the collective agreement and which adversely affects the rights of employees. By definition therefore, the union may not grieve an individual professor’s teaching “assignment”. As a board constituted under art. 32, we therefore have no jurisdiction to hear this matter both because the collective agreement reserves this jurisdiction to a workkload resolution arbitrator and because the subject matter is not a proper subject matter for a union grievance. In the case before us, a professor, Ms. Smith, sought out work which was not part of her “assigned” teaching load. Ms. Smith gave evidence that she volunteered to teach in continuing education in order to augment her income. Historically, continuing education has been excluded from collective bargaining. There was no element of compulsion involved and she was not required to teach the courses in issue. There was no evidence that she or any other full time professor would have been “assigned” the courses she taught in the continuing education department had she not volunteered to do so. There was therefore no adverse effect on any other member of the bargaining unit arising from her choice to volunteer to teach in continuing education. Her regular “assignment” was in the business program. It was her evidence that it was entirely up to her as to when and what she would teach in continuing education. Neither of these things is true of “assignments” made pursuant to the College’s right to assign work under arts. 6 and 11 of the collective agreement. Ms. Smith placed clear emphasis on her right to make such choices in respect of continuing education teaching as opposed to those courses she was hired to teach as a full time professor. The Union argues that there is a patent violation of the collective agreement because a full time bargaining unit member is not being paid their regular rate or overtime rate to teach an “assigned” course as provided by art. 11. The fact is that the term “assign” imports an element of compulsion which is absent here. The Union argues that all teaching contact hours must appear on a full time professor’s Standard Workload Form (SWF). Ms. Smith does not consider her teaching in continuing education as 26 “assigned” work and for that reason has chosen not to claim that such work should be reflected on her SWF nor is she prepared to advance a claim for overtime on that basis. There is no doubt that “assigned” work must appear on the professor’s SWF however we are not dealing here with “assigned” work. A full time professor who fails to comply with the teaching contact hours set out on their SWF may be disciplined for so doing. A professor who refuses to teach a continuing education course may not be so disciplined. The fact that the College and continuing education students for that matter might profit from the experience of a full time professor’s experience is irrelevant to the issue. That is not a legal basis to prevent a full time professor from volunteering to teach in continuing education. There is no doubt that there is nothing to prevent a full time professor from volunteering to work in a continuing education program at another college even when teaching the same credit course they teach at their home college. The full time professors at the second college have no claim to that work either as a “regular assignment” or as work of the bargaining unit. For that matter, continuing education courses cannot reasonably be argued to be “bargaining unit work”. Should a College choose to make an “assignment” of a continuing education course to a bargaining unit member then naturally such assignment would have to appear on their SWF. The distinction between a college’s regular programs and continuing education programs is recognized in art. 27.16 which states that unless such teaching is included in a professor’s “regular assignment”, it is excluded from any claim arising from the lay-off process. There is here a recognition on the part of the Union that such teaching is not “bargaining unit work”. The fact that art. 11 does not position the Union well to take issue with an individual professor’s “assigned” workload does not mean that the clear intent of the provision should be ignored. What is clear from that language of art. 11 is that the parties intended that the subject matter of a professor’s workload should be the subject of direct discussions and agreement between the College and the individual professor, failing which it may be the subject of arbitration before a workload resolution arbitrator. I am also unable to discern any “unreasonable standard” in this case. This is not a situation where the College has imposed any “standard” at all. I cannot accept the notion that any alleged violation of the collective agreement constitutes a so called “threshold standard”. If the term “standard” is to be given the broad meaning which must be applied for the Union to meet the requirements of art. 32.09 then any alleged violation of the collective agreement would meet that condition precedent. This has been argued and rejected in many cases. It stretches the term “standard” beyond any reasonable meaning to equate the appointment of a professor to teach a course as a “standard”. Similarly, the notion that any alleged violation of the collective agreement has an adverse effect on other employees is a specious argument depriving the language of art. 32.09 of any meaning or restrictive effect. This too has been rejected uniformly by arbitrators considering the meaning of art. 32.09. There is no doubt that the Union, under this collective agreement, cannot grieve a claim for overtime. In effect, this is what the Union is attempting here. All three requirements set out in art. 32.09 must be established for this to be a proper union grievance and arbitrable as such. The cases are uniform in this respect. There is no doubt in my mind that the Union has failed completely in showing that there is here any unreasonable standard or adverse effect on other bargaining unit employees. Additionally, in my view, there is no patent violation of the agreement here in that no “assignment”, as contemplated by art. 11, is involved. In this respect, it is my 27 view that the Canadore decision is manifestly wrong. In any case, the fact that there is a decision finding a violation of the collective agreement at one College does not mean that there has been a “patent” violation of the agreement on similar facts at another College. In order to succeed in claiming that this is a proper union grievance, the Union relies heavily on the argument that in these circumstances the College is bargaining directly with bargaining unit members and therefore is in violation of the union’s exclusive bargaining rights. This argument fails in the sense that the subject matter of the bargain is not a matter covered by the collective agreement any more than it would be if the College hired a member of the public, who was not a member of the bargaining unit, to teach a continuing education course. Additionally, not every agreement between a bargaining unit member and the College necessarily involves a subject matter governed by the collective agreement or the Union’s exclusive bargaining rights. If a professor seeks permission to use particular materials in the teaching of a course, this is not a matter over which the Union has exclusive bargaining rights. To engage in discussions concerning this subject matter, is not a violation of art. 1. An employee’s choice as to the type of professional development to pursue on their own time, though there may be discussion and agreement with their supervisor, is not a matter affecting the Union’s exclusive bargaining rights. Even professional development activities during the non-teaching period are subject to agreement between the teacher and the College. Such agreement directly between a professor and the College is recognized in the collective agreement and is not subject to the Union’s exclusive bargaining rights. If the Union’s argument concerning art. 1 is successful, it means that any agreement between a bargaining union member and the College must be treated as a violation of the Union’s exclusive bargaining rights. In my view then, it does violence to the meaning and intent of the language of this collective agreement to turn what amounts to an overtime claim into a subject matter over which this Board may take jurisdiction. October 13, 2015 Ann E. Burke 28 APPENDIX A Collective Agreement Excerpts Article 1 RECOGNITION 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers, counsellors and librarians, all as more particularly set out in Article 14, Salaries, except for tho se listed below: (i) Chairs, Department Heads and Directors, (ii) persons above the rank of Chair, Department Head or Director, (iii) persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff barga ining unit, (iv) other persons excluded by the legislation, and (v) teachers, counsellors and librarians employed on a part -time or sessional basis. NOTE A: Part-time in this context shall include persons who teach six hours per week or less. NOTE B: Sessional in this context shall mean an appointment of not more than 12 months duration in any 24 month period. … 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 an d 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 … 29 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 t eachers 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 se t out in Articles 11.01 B2 to 11.01 M are omitted] 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 Co llege, 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 contact 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. 30 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 wit h 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 11.02 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 Article 32, Grievance and Arbitration Procedures. 11.02 B 1 There shall be a College WMG at each Co llege. 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 y ears, 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 Col lege 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; 31 (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 regard to such variables affecting assignments 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 a nd 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 delive ry; (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; (xiii) level of complexity and rate of change in curriculum; (xiv) requirements for applied research; (xv) required translation of materia ls. 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, th e matter is not resolved, the teacher shall be so advised in 32 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 unle ss 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 withi n 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 appointment 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. 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. 33 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 spec ific 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 Libra rians and Counsellors shall be 35 hours per week. 11.04 B 1 The College shall allow each Counsellor and Librarian at least ten working days of professional development in each academic year. 11.04 B 2 Unless otherwise agreed between the Counsellor or Lib rarian 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 profe ssional 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 tea ching 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. 34 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 agreement will not be unreasonably withheld. No SWF will be issued but such activities may be documented. Where mutually agreed activ ities 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 spec ific 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. 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 conta ct 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 i n consent. 35 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 improvements 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. … Article 27 Job Security … Article 27.16 Extension and Continuing Education programs and courses which are not included in the regular assignment of full-time employees are excluded from the application of this Article for all purposes. … Article 32 GRIEVANCE AND ARBITRATION PROCEDURES Grievance Procedure Complaints 32.01 It is the mutual desire of the parties that compla ints 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 36 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 gri evance (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 grievance, 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 g rievance 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. 32.03 - 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 gr ievance 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 Me eting stage. Two grievors of the group shall be entitled to be present at the Grievance Meeting stage unless otherwise mutually 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 a nd 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 affec ts 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 37 grievance commencing at the Grievance Meeting stage of the Grievance Procedure detailed in 32.02. … Definitions … 32.11 C "Grievance" means a complaint in writing arising from the interpretation, applic ation, administration or alleged contravention of this Agreement. 38 Appendix B Case Law Relied on by the Union: Algonquin College and OPSEU (Jesin) March 31, 2014 Canadore College and OPSEU (H. D. Brown) February 20, 1990 Fanshawe College and OPSEU (H. D. Brown) June 28, 1996 Fanshawe College and OPSEU (Burkett) March 29, 1989; upheld [1994] O.J. No. 3697 (Ontario Court of Appeal) George Brown College and OPSEU [2002] O.J. No. 3652 (Divisional Court) George Brown College (Benhaggai grievance) (Mitchnick) February 16, 1993; George Brown College (Hlinka grievance) (Kaplan) September 29, 2004; [2004] O.L.A.A. No. 529 Seneca College and OPSEU (Devlin) June 5, 1998 Relied on by the Employer: Cambrian College and OPSEU (Teplitsky) October 28, 1988 Durham College and OPSEU (Knopf) November 1, 2012, 2012 CanLII 66574 (ON LA) Fanshawe College and OPSEU (Knopf) December 10, 2007 Fanshawe College and OPSEU (H. D. Brown) October 30, 2009 George Brown College v. OPSEU, 2003 CanLII 8931 (ON CA) Humber College and OPSEU (Shime) December 4, 2014 Ontario Public Service Employees Union v Humber College Institute of Applied Arts and Technology, March 18, 2015, 2015 ONSC 1963 (CanLII) (Divisional Court) St. Lawrence College and OPSEU (Starkman) November 21, 2011 St. Lawrence College and OPSEU (Leighton) April 13, 2012 SEFPO and La Cité Collégiale (O’Neil) August 6, 2014