HomeMy WebLinkAboutOrchard et al 01-05-28
IN THE MATTER OF A WORKLOAD RESOLUTION ARBITRATION
BE1WEEN:
FANSHAWE COLLEGE
(the "College" or the "Employer")
-and-
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 110
(the "Union")
Complaints of Robert Qarlinq, Alfred Messenaer, Gary Miller,
Huah Orchard, Raymond Smith and Walter Van Bovèn
Bram Herlich,
Workload Resolution Arbitrator
Georae Vuicic. Gail Rozell and others
for the College
Nick Coleman. Tom Geldard and others
for the Union
AWAJID
(A hearing was held in London on Apr1l16, 2001.)
The College asked that I defer these proceedings pending the
determination of an Article 32 Board of Arbitration which was scheduled to
deal with grievances filed on behalf of the instant complainants. Those
grievances are said to raise the very same issues as those before me. In a
"bottom-line" decision dated April 30, 200l I dismissed the employer's motion. I
also ruled on the merits of the complaints before me and found that the
complainants are teachers in post-secondary programs for the purposes of
various provisions of Article 11 of the collective agreement. I now provide the
reasons for that decision.
Introduction
Article 11 of the collective agreement regulates and governs the
workloads of bargaining unit teachers. Several of those provisions distinguish
between teachers "in post-secondmy programs" and those "not in post-
secondary programs". The only manifestations of these terms, the distinction
between them, or the consequences of that distinction are to be found in four
locations within Article 11.01 of the collective agreement. Article 11.01 B 1
regulates the maximum total worldoad (44 hours per week for up to 36 weeks
for teachers in post-secondary programs; 44 hours per week for up to 38 weeks
for teachers not in post-secondary programs). Article 11.01 I sets the maximum
number of weekly teaching contact hours (18 for teachers in post-secondary
programs; 20 for teachers not in post-secondary programs). Article 11.01 K 1
establishes the maximum number of yearly contact days (180 for teachers in
post-secondary programs; 190 for those not in post-secondary programs). And,
finally, Article 11.01 K 3 limits the number of annual contact hours (648 for
teachers in post-secondary programs; 760 for those not in post-secondary
programs). Perhaps more plainly put, teachers not in post-secondary programs
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may be required to provide a greater number of contact hours and days over a
longer period of time than their counterparts in post-secondary programs.
Six workload resolution complaints were referred to me. Each of the
complainants has been treated, or at least identified, by the College, as a
teacher not in a post-secondary program. They each claim that they ought to
be treated as teachers in post-secondary programs.
The complainants each teach in (one of two) apprenticeship programs.
Until a recent round of legislative change (the Apprenticeship and Certification
Act 1998, proclaimed effective in January 2000), completion of Grade 10 was
the minimum academic requirement for student participation in these
programs. More recently, however, the completion of Grade 12 (or an
academic standard considered to be its equivalent) has become a
precondition to, participation in these (and many, though not all, other)
.apprenticeship programs. Thus, and although the requirement has been
imposed externally (i.e. not by the College directly). it was not disputed that.
igenerallyspeaking, the completion of Grade 12 has now become a pre-
requisite for participants in the relevant apprenticeship programs. Similarly,
; and although the union led us through a maze of legislative provisions found
prîncipally in the Education Act and its Regulations, neither was it disputed
that "post-secondary" would generally be understood to refer to schooling
subsequent to the completion of secondary school i.e. post Grade 12.
Thus, the union claims that whatever the prior status of these programs
may have been (and it is not disputed that they were not previously regarded
as post-secondary programs) the introduction of the requirement that entrants
have completed Grade 12 renders these programs "post-secondary".
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For its part, the employer asserts some understandable degree of
incredulity that. despite the fact that the teaching requirements have not
substantially changed, the complainants and the union assert that teachers in
these programs ought now to be accorded the more generous workload
provisions associated with teachers in post-secondary programs. I am asked to
approach the superficial attraction of the union's argument about the plain
and obvious meaning of the collective agreement with both caution and
skepticism. The requisite attention ought to be paid to the purpose of and
reasons for the differential treatment of the two types of teachers in the specific
historical context established through practice and adjudication under
successive collective agreements. If we properly assess the issue from that
perspective, we must conclude that no change is warranted to the prior
. treatment of teachers in the relevant apprenticeship programs - they should
continue to be considered teachers not in post-secondary programs._-
Motion to defer
At the hearing, I was advised that the issue which is at the heart of this
case (namely whether certain apprenticeship programs ought to be treated as
post-secondary programs) was about to be addressed by two separate Boards
of Arbitration in proceedings set to commence within weeks of the instant
hearing. On that basis, the College asked that I defer these proceedings
pending the results of the others.
It would appear that the issue of whether these programs are to be
viewed as post-secondary programs or not is one which can have practical
application onlyfor the purposes of Article 11 of the collective agreement. For
as already noted, it was common ground that Article 11.01 is the exclusive
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location of all collective agreement references to post-secondary or not post-
secondary programs.
Generally speaking, grievances under this collective agreement are
processed under the terms of Article 32 and, if necessary, are heard and
decided by a Board of Arbitration constituted under the terms of that Article.
However, the parties have set out an elaborate and deliberate process for the
resolution of workload complaints under Article 11. I have, to some extent,
already described some of the halhnarks of that process in my earlier decision
in this matter. For our present purposes it is useful to note the nature of the
boundaries the parties have erected around the Article 11 workload resolution
process.
The parties' mutual intent to preserve the informality and expedition of
~he workload r~solution process is apparent not only from the nature and
timing of that process but also from the opportunities the parties have seized to
deliberately distinguish it from the Article, 32 I'rocess. Thus. one of the
,concluding portions of the lengthy assortment of provisions which comprise
Articles 11.01 and 11.02 reads as follows:
11.02 F 9 Having regard to the procedures set out herein fur tht: rt:~ulutiun
of disputes arising under 11.01 and 11.02, no decision of the WMG
[Workload Monitoring Group] or award of the WRA [Workload
Resolution Arbitrator] is subject to grievance or any other proceeding.
And while it might well be misleading to suggest that workload issues can
never be the subject of a grievance or an Article 32 arbitration hearing, the
:parties have been explicit about the boundanes between the two types of
proceedings:
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11.02 A 6 (b) Grievances arising with respect to Article 11, Workload,
other than 11.01 and 11.02 shall be handled in accordance with the
grievance procedure set out in Article 32, Grievance Procedure.
[emphasis added]
In any event, the employer does not specifically question or challenge
my jurisdiction to resolve the complainants' workload issues. Indeed, it
concedes that there is or at least could be a workload issue properly before
me. It seeks, however, to distinguish the question of whether the programs at
issue are or ought to be treated as post-secondary programs from the
application of the answer to that question to the complainants before me; The
latter issue is (or perhaps, more accurately, "may" be) before me depending on
the resolution of the first. But the first issue is described as a ~'threshold" issue
better left to be determined by an Article 32 Board of Arbitration.
The College asserts that the broader question of whether apprenticeship
programs for which Grade 12 is now an entrance requirement have been
thereby converted into post-secondary progrå:fns such that the teachers within
those programs are to receive more favourable workload treatment is one
which, while no doubt of interest to the instant complainants, is of more
general application throughout this and other colleges. My award will have
limited precedential effect (Article 11.02 F 6 limits its effect to the affected
teacher and only for a maximum 12 month period). It may or not be consistent
with the awards of other arbitrators at this or other colleges. Rather than
promoting a checkerboard of results, it would be preferable to have an
adjudicative pronouncement with a wider and subsisting precedential value.
In support of its argument. the College referred me to a number of cases
where workload resolution issues do appear to have found their way to an
Article 32 Board of Arbitration (Fanshawe College of Applied Arts and
Technology (unreported decision of K.M. Burkett. March 29, 1989) and Seneca
6
Colleae (unreported decision of J.H. Devlin, June 5, 1998). I do not, however,
find these awards to be of great assistance to me because the focus of each is
the propriety of bringing workload resolution issues to an Article 32 Board of
Arbitration. In some respects that issue is the reverse side of the coin which
faces me. In each of those cases and in the peculiar and specific factual
contexts in which they arose, the union was permitted, by way of Union
grievances, to advance issues which were said to have been within the
province of the workload resolution arbitration process. Those awards,
however, simply do not address the issue of either the jurisdiction of a
workload resolution arbitrator (UWRAU) or the cîrcumstances in which such an
arbitrator might or ought to defer proceedings.
It is less than apparent to me on what basis I might have the authority to
decline (even for a specified and limited period) to decide a matter which is
properly within,the province of the WRA and to thereby undermine the
expeditious process the parties have established. And surely, even if I am
possessed of the capacity to properly defer these proceedings. any such ability
must be à'discretionary exercise.
In that context, neither am I persuaded that the avoidance of a
checkerboard result warrants derailing or otherwise delaying the specific
resolution process the parties have fashioned. Two significant hallmarks of
that process are its speed and calculated lack of precedential value. The
College asks me to sacrifice the first because of the second. It seems to me that
the parties have embraced these twin features - indeed it may well be that it is
the very lack of precedential value which serves to facilitate the expedition. The
College's submission effectively asks me to abandon or ignore two of the
principal characteristics of a deliberately crafted process. I will not do so
lightly.
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Three decisions of WRAs dealing with similar issues were referred to
me. In only one of those cases did the WRA go on to deal with the merits of the
issue. However, at least in relation to the preliminary motion now under
consideration, they do support the College's suggestion of the possibility of
inconsistent determinations. But they also perhaps demonstrate that the
checkerboard need not be limited to the conventional two-toned variety. In a
case involving Centennial College (undated decision) WRA Turner concluded
that he was without jurisdiction to decide the "very complex" issue of the
"change in designation of an Apprenticeship program from non post-
secondary to post-secondary". With respect, I am of the view that decision is
manifestly incorrect on the point and I note that it arrives at a conclusion not
even advanced by the College before me. In another Centennial College case
(unreported, October 5,2000) WRA Vorster, while clearly retaining jurisdiction
over the matter, elected to defer the proceedings before him pending the
outcome of the Article 32 process. And finally in George Brown College of
Applied Arts and Technology (unreported, June 13. 2000) WRA Snow declined
to defer the proceedings before him wher~ there was a pending employer
grievance awaiting Article 32 arbitration.
I adopt WRA Snow's approach and see no reason to defer the
determination of a matter which is clearly and properly before me.
In arriving at this conclusion, I note that I was told that there were two
pending Article 32 arbitration proceedings, one involving this college and
scheduled to commence on May 8,2001; another concerning Centennial
College scheduled to commence on the following day before a different Board
of Arbitration. (I note, as well, that although there is a reference to an
outstanding College grievance in the George Brown College case just
described, I was not advised as to the status of that proceeding.) If the
avoidance of inconsistent determinations is a driving factor in the request that
8
I defer these proceedings, one may well wonder whether the establishment of
two different Boards of Arbitration to hear and decide what is said to be the
same issue is the optimal vehicle for avoiding inconsistent determinations -
particularly where the scheduling of the hearings is such as to make it unlikely
that either Board of Arbitration will have the benefit of the findings of the other.
(I also take notice of the fact that the various parties bound by the terms of the
collective agreement before me are not strangers to the vicissitudes of
inconsistent determinations even in the Article 32 type arbitration process.)
Two other factors also militate against the exercise of any discretion to
defer these proceedings. I am told that it is grievances filed by the
complainants, raising the same issue as that before me, which were referred to
arbitration. But while the union does not dispute that, it is quick to explain that
it has done so only as a "defensive" measure. Since the College has taken the
position that th7 proceedings before me ought to be deferred, the union has
taken steps to insure that, in the event such deferral is granted over its
objection. procedures will be in place to aSSUfe the speediest resolution of the
complainémts' workload issues. But the union still asserts quite vigorously that
the appropriate forum for resolving those complaints is the instant one. Indeed,
it maintains that, strictly speaking, the grievances in question are not properly
within the purview of an Article 32 Board of Arbitration. (Although I do note that
while it thus questions the very legitimacy of the grievances it has filed, the
union does appear poised to accept the College's offer (should I be persuaded
to defer these proceedings) to not raise any preliminary jurisdictional
objections at the scheduled Article 32 arbitration hearing.)
Finally, I note that while the "threshold" issue is one which is said to
have impact beyond the specific complainants in the case before me, I was
also advised that the cases of these six complainants comprise the entirety of
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any outstanding complaints which might engage the "threshold" issue at this
college.
In all of these circumstances and for all of the reasons just outlined, I
am not persuaded that there is any compelling reason to defer the instant
proceedings or to otherwise interfere with the process the parties have agreed
to for the resolution of workload complaints.
Post-secondary or not post-secondary
This brings me, finally, to a consideration of whether the complainants
ought to be considered as teachers in post-secondary programs or not in post-
secondary programs.
The union's position is simple and straightforward. The programs in
question require completion of Grade 12 'os a condition of admission. They are
therefore post-secondary programs and the teachers teaching in them are
therefore entitled to the workload protection afforded by the collective
agreement to teachers in post-secondary programs. The union does not
dispute that, until the recent imposition of the Grade 12 entrance requirement,
teachers in these programs were treated as not in post-secondary programs. It
does not even seriously dispute the College's assertion that, but for the new
entrance requirement, little else has changed within the programs. That, it is
said, is of little more than passing interest and certainly of no relevance to
determining whether the programs are post-secondary.
For its part, the College asserts that more is required to properly
understand the nature and purpose of the collective agreement distinction
between types of teachers.
10
The relevant collective agreements have long included a mechanism for
distinguishing between at least two types of teachers and for establishing
correspondingly different types of workload expectations. But while the
consequences of placement in one or the other of the categories has always
been spelled out fairly clearly, the parties have not always been so clear as to
the defining characteristics of the types of teachers involved. Prior to 1976 a
Memorandum of Understanding between the Ontario Council of Regents (the
"Council") and the CSAO distinguished between teachers as "Academic Post-
Secondary" and" Craft, Sldll Elementary arId Secolldary". Commencing .in
1976 and for some 10 years thereafter, the collective agreements between the
Council and OPSEU made a distinction between "Group J (Academic Post
Secondary)" on the one hand and the marvelously descriptive category" Group
2" on the other.
A number of arbitration decisions have had to wrestle with the manner
of identifying teachers as falling within one or other of the two categories
identified. It is the approach and analysis of those Boards of Arbitration which
the employer commends to me. In view of the expansive nature of the
language considered, it is less than surprising that in the very first of the cases
referred to me (Conestoga College, unreported, May 25, 1982 (Burkett», the
Board observed:
We start with the trite observation that when the parties agreed to
article 4.01 they were agreed that there are two types of teaching
assignments and that there is a substantive distinction between them.
Unfortunately, the language used to express this agreement is ambiguous
in so far as it pertains tu the substance of the distinction.
The Board therefore considered extrinsic evidence to found its
conclusion that "the parties intended Group 1 to encompass courses taught to
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Grade 12 graduates as part of a 2 year diploma course and that Group 2
encompassed the courses taught as part of the adult training programme."
A series of subsequent cases confirmed the "absolute lack of assistance
which the collective agreement provides in interpreting the phrase in question
("Academic Post Secondary") " (see, for example, Seneca College of Applied
Arts and Technology, unreported, (Brent) August 15, 1983 at p. 11) and
elaborated and refined the approach identified in the Conestoga case.
The process followed in the Seneca case (and in a number of similar
cases, many decided by Boards chaired by the same arbitrator) is premised on
the general understanding (supported by both the Conestoga case and by the
1975 interest award of the Board chaired by the Honourable Mr. Justice Estey)
that the parties intended to deal with more or less demanding workload
situations based on an assessment of the sort of t~aching actually done. The
Boards then go on, with differing results, to perform an analysis of the actual
teaching done with a view to determining, whether it was (or was not)
"Academic Post Secondary" in nature. In a process which some might suggest
began to resemble a single issue interest arbitration. the Boards assessed
such factors as funding, student intake, methods of instruction, course content
and preparation, sh.1dent evaluation, educational philosophy and others with a
view to determining whether "Academic Post Secondary" was an appropriate
designation.
The College thus asserts that the determination of whether or not a
program is post-secondary is more complex than an assessment of its entrance
requirements. It should be made by reference to the constellation of factors set
out in the previous arbitral jurisprudence. The employer therefore provided me
with the tools it felt necessary for me to perform a similar analysis in this case.
I am prepared to accept (without finding) that were I to be asked to perform the
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very same task pursuant to the collective agreement language in force when
the Conestoga and Seneca (and other cases) were decided, I might well come
to the conclusion that the complainants are not teaching in "Academic Post
Secondary" programs. That, however, is not the issue before me.
Whatever may be said of the clarity of the prior language. the parties. in
the 1985-1987 collective agreement opted to alter it. The operative distinction is
now one between "post-secondary programs" and "[not] post-secondary
programs". No evidence was presented to me, whether in the form of past
practice or negotiating history, to clarify the meaning of the new language or
the significance of the deletion of "academic" as a modifier for post secondary.
In that context, there is now an interpretive contest between the union's appeal
to give simple language its plain meaning and the College's urging (in the
absence of any supporting evidence) that I conclude that the.changed
language is meant to codify practice and adjudiq:Ition determined under the
,
predecessor language.
The College asks me to explicitly or effectively read the distinction
between the two categories as one between post-secondary programs and
apprenticeship programs. It was conceded, however, that there are College
programs which would fall into neither category. More importantly, the
language of the collective agreement reads differently. It is interesting to note
that in the Seneca case, the Board of Arbitration observed that the 1975
interest board had rejected the union's proposal to distinguish the two groups
on the basis of "secondary school pre-requisite" and "retraining and
apprenticeship" respectively. There is perhaps some irony in the College now
urging me to arrive at a similar conclusion.
I also find it significant that while numerous cases wrestling with the
former language were put before me, not a single case (apart from the recent
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decision of WRA Snow to which I shall soon refer) filed by either of the parties
has determined any question relating to whether teachers were or were not in
post-secondary programs under the current language (now in place for almost
a decade and a half). (One other case was filed which might have had to
make such a determination had the grievance in question not been dismissed
on preliminary grounds.)
The inclusion of the word "academic" in the former language provided
much of the backdrop for the adjudicative approach which predated the
current language. Undoubtedly the "post-secondary" portion of that former
category was II1uch easier to identify and quantify than was the requirement
that the teaching be "academic". The parties have now altered their language
and have explicitly deleted "academic" as a necessary defining characteristic
of the category. On its face this would suggest that the parties and, if
necessary, arbitrators will no longer have to perfo.rrn the lengthy detailed and
difficult analysis which typified some of the prior caselaw.
In the absence of any evidence to support the claim that the deletion of
the word" academic" was meant or understood by the parties to signal its
retention or to signal a distinction between post-secondary and apprenticeship
programs, I am inclined to simply give the words their plain meaning.
I am fortified in my conclusions when I consider the reasoning of WRA
Snow in George Brown College of Applied Arts and Technology (unreported,
September 22, 2000) as I am in full agreement with the views expressed therein
particularly in relation to the curiosity of unnecessarily applying prior
jurisprudence in the face of negotiated changes to the collective agreement
resulting in language which is clear and easy to apply.
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As I indicated at the outset. the College's frustration that affected
teachers may benefit from more generous workload provisions when little
(apart from the academic entrance requirement) has changed within their
programs is perhaps understandable. But the parties have chosen to amend
collective agreement language which has been found to be absolutely lacking
in assistance as to the defining characteristics of the two types of teachers
contemplated. It appears from the lack of authorities presented to me that.
since that change, the need to litigate such issues may well have diminished. I
am not necessarily in a position to determine whether the value of added
certainty outweighs some apparent inequities which may periodically surface
at the margins.
The complainants teach in programs for which Grade 12 is an academic
pre-requisite. The programs are therefore post-secondary programs. The
complainants c:;rre therefore teaching in post-secoI),dary programs and are
entitled to the associated workload protections.
It was for these reasons that I issued my "bottom-line" decision dated
April 30. 2001.
DATED AT TORONTO THIS 28th DAY OF MAY 2001
~-- '--L
Bram Herlich
Workload Resolution Arbitrator