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HomeMy WebLinkAboutUnion 04-05-12 IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE CAAT - ACADEMIC (the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF UNION GRIEVANCE NO. 2003-017-0053 BOARD OF ARBITRATION Paula Knopf, Chair R. O'Connor, College Nominee Michael Sullivan, Union Nominee APPEARANCES For the College Patricia P. Brethour, Counsel Cindy Bleakney, Human Resources Consultant lan Wilson, Dean, School of Business For the Union Hiliary Cook, Grievance Officer Mary Ann White, Chief Steward The hearing in this matter took place in Kingston, Ontario on April 13, 2004 AWARD This is a Union grievance alleging that the Employer has violated the Collective Agreement by failing to deliver a teacher's SVVF and timetable within the time period prescribed in the Collective Agreement. The Union also alleges that the Employer has violated the Union recognition clause by negotiating directly with an employee. The case arises because a professor's start date of employment was less than three weeks prior to the commencement of the academic term. This meant that neither her SWF nor her timetable was delivered to her within the time periods prescribed under the Collective Agreement. The Union alleges that negotiation of a start date that results in a breach of the time periods prescribed for the finalization of workloads contravenes the Collective Agreement. As this is a Union grievance, the Employer raised a preliminary objection to the Board's jurisdiction in this matter. The parties argued the preliminary objections and the merits of the case together on the basis of agreed facts. The case arises out of the circumstances surrounding the hiring of a new professor, A.H. She was hired into the School of Business in the summer of 2003 following the posting for the position for "Professor, Human Resources," in April, 2003. The posting indicated a start date of August 1,2003. A.H. applied for the position in early April. Her accompanying Curriculum Vitae indicated current employment in the College sector. A.H. and the other candidates were interviewed on May 3, 2003. At the time of her interview A.H. indicated that she would be teaching on a part-time basis at another other college during the summer. Accordingly, she asked if the start date at St. Lawrence College could be extended to permit her to finish her summer commitments if she were offered the position at St. Lawrence College. During her interview, the courses that she would be teaching at St. Lawrence College were also discussed. On June 3, 2003 the College offered a probationary appointment to A.H. as a Professor of Human Resources in the school's business effective August 18, 2003. At this time the specific courses she would be teaching in the fall of 2003 were again discussed with her. On June 12, 2003 she accepted the appointment. On August 12, 2003 a SWF was generated for A.H. indicating her teaching load from September to December 2003. The courses listed on the SWF were the specific courses discussed with her at the time of her interview and job offer. On August 18, 2003 A.H's employment with the College formally commenced. On August 26, 2003 A.H. signed the SWF indicating her agreement with the total workload. Less than two weeks before classes were to start she was given her timetable. The relevant provisions of the Collective Agreement are as follows: '1.01 The Union is recognized as the exclusive collective bargaining agency for all employees of the Colleges engaged as teachers, counsellors and librarians .... '1'1.0'1 A Each teacher shall have a workload that adheres to the provisions of this Article. 1 1'1.02 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 1, 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 College, it will not be done without prior consultation with the teacher. ~'1.02 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 three working days from date of receipt of the SWF. ~1.02 A $ 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 or 11.02, 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. 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 Procedures. 11.02 C 1 The functions on the WMG shall include: (iv) reviewing individual workload assignments where requested by the teacher or the Union Local and, where possible, resolving the disputes; 11.02 C 2 The WMG shall in its consideration have regard to such variables affecting assignments such as; (viii) lead time for the preparation of new and/or changed schedules 11.02 E 1 If following a review by the WMG of an individual workload assignment which has been forwarded to the WMG, the matter is not resolved, the teacher shall be so advised in writing. The matter may then be referred by the teacher to a WP, A 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. 32.01 Articles 32.02 to 32.05 and 33.01 to 33.06 inclusive apply to an employee who has been employed continuously for at least the preceding four months. Union Grievance 32.10 The Union or Union Local shall have the right to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by-passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the rights of 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 grievance commencing at Step One of the grievance procedure detailed in 32.03. Submissions of the Parties Submissions of the Employer The Employer submits that the Board of Arbitration has no jurisdiction over this matter because it is an issue that falls exclusively within the Workload Management Resolution provisions of the Collective Agreement. It is asserted that the case is essentially a complaint about when the SWF and the timetable were delivered to the teacher pursuant to Articles 11.02 A 1 and 11.02 A 5. The Employer argues that this is a "difference arising from the interpretation, application, administration or alleged contravention of Article 11.01" and therefore within the exclusive jurisdiction of the Workload Management Group (WMG) or ultimately the Workload Resolution Arbitration (WRA) provisions of the Collective Agreement. It was argued the Collective Agreement gives both the new teacher and the Union the right to file a complaint to the WMG regarding the workload and timetabling of the r~ew teacher and that the Collective Agreement precludes resolution of such matters by way of grievance arbitration. It was stressed that issues arising regarding the administration or the interpretation of Articles 11.01 and 11.02 can only be taken through this Workload Resolution process. It was emphasized that the functions of the WMG according to Article 11.02 C I include reviewing individual workload assignments and making recommendations to the College on the operation of the workload assignments. Further, 11.02 C 2 allows the WMG to consider lead time for preparation of new and/or changed duties and deal with the timetabling of workload. Accordingly, it was said that this was not only the exclusive but also the appropriate forum to deal with complaints such as the ones raised in this case. While it was acknowledged that the Union may not have the right to refer a complaint under Article 11.01 or 11.02 to the Workload Arbitration process, it was acknowledged that the Union has the right to refer a matter to the WMG. This was affirmed and clarified in the decision of the Court of Appeal in George Brown College and OPSEU, December 8, 2003, [ 2003 O.J. #4757]. It was argued that nothing raised by the grievance goes beyond the need to interpret, apply or determine if there has been a contravention of Article 11.02. Accordingly, it was suggested that the Union is trying to do indirectly what it is not entitled to do directly under the Collective Agreement by way of this grievance. The College also relies on the following cases in support of its position that a case such as this one falls exclusively within the jurisdiction of the Workload Resolution provisions of Article 11 and not before a grievance arbitrator: Niagara College and Ontario Public Service Employees Union, award of M.G. Mitchnick dated November 29, 1995 and George Brown College of Applied Arts and Technology and OPSEU, Local 556, award of I.G. Thorne. The Employer also objects to the processing of this case as a Union policy grievance. The Employer argues that the allegations in the grievance do not fall within the strict guidelines of Article 32.10 and as defined in the decision of Arbitrator Saltman in Conestoga College and OPSEU dated March 27, 2003. It was submitted the allegations in the grievance do not suggest the application of any unreasonable standard and the case would not have an effect on the bargaining unit as a whole. Instead, it was said that this would be a proper matter to be the subject of an individual complaint under the provisions in Article 11. For all these reasons, it was submitted that the Board of Arbitration has no jurisdiction over the grievance as framed. Turning to the merits of the case, the Employer addressed the allegation that the College engaged in direct bargaining with the new teacher and thereby violated the recognition provisions of the Collective Agreement. It was submitted that there was absolutely no evidence in the agreed Statement of Facts that any such conduct has taken place. It was stressed that the agreed facts reveal that an offer of employment was made to A.H. that included terms and conditions of employment that accord with the Collective Agreement. It was stressed that the only type of "negotiation" in the discussions with A.H. was with regard to her start date and that this is a matter that would not be of consequence to the Union. It was stressed that there is no evidence that A.H. was asked to waive her rights or entitlements under the Collective Agreement. Instead, it was said the College simply accommodated A.H's request to commence her employment August 18. Accordingly, it was submitted that there is no evidence to support the allegation that there has been a violation of Article 1 of the Collective Agreement. Submissions of the Union The Union asserts that the Article I recognition complaint is the "crux" of this grievance. The Union stresses that the College is only entitled to enter into direct negotiations with bargaining unit member about the simple act of hiring. It is asserted that any other aspect of the employment must be negotiated through the Union. Reliance was placed on the decision of the Board chaired by Stanley Schiff in Loyalist College and OPSEU, dated August 1, 2001. It was submitted that this College entered into negotiations with the new teacher, A.H., which resulted in terms that were inconsistent with the collective agreement. The inconsistencies arise because the start date for employment would have been less than six weeks prior to the commencement of classes which would have necessitated a breach of the collective agreement's requirement to deliver the SWF more than six weeks earlier. For this reason, the Union asserts that the Article ! aspect of the grievance takes this case outside of the cases cited by the Employer and establishes this grievance more than a simple Article 11.02 matter. Therefore, the Union asserts that this is a proper Union grievance. The Union argues that there is ample evidence that the Employer entered into improper negotiations with the new teacher because the facts establish that there were discussions about a start date required a breach of Article 11.02. It was submitted that the negotiation of a start date that necessitates the violation of the collective agreement attracts the interest of the Union on the basis of Article 1. It was also said that a new hire must be placed on a "level playing field" with the other employees by having six weeks' notice of his/her SWF prior to his/her classes commencing. It was argued that there is significant impact if a SWF is delivered late as was recognized in the decision in George Brown College and OPSEU, Local 556, Howard Show dated June 1.3, 2000. Turning to the Employer's argument that this is essentially an Article 11.02 complaint, the Union asserts that this grievance is much more than that. It was suggested that the new teacher could not have complained about her SWF until she was on staff as a member of the bargaining unit. Given that the SWF was delivered even before she was officially an employee, it was suggested that the only proper way to process this case would have been as the Union has done. The Union asserts that the only grievances barred from the Union are those set out in Article 32.10. ACcordingly, since the Article 11 complaint is not a regular grievance, this ought to be a case which the Union can process. The Union further points out that the teacher would have been barred under Article 32.01 from filing a grievance because she had less than four months' service. Fundamentally, the Union argued that the facts in the case raise issues about what the College can do prior to hiring a new teacher. The Union is concerned that the facts suggest that the College can do anything it wants prior to hiring a new teacher, including negotiating something that results in the violation of the collective agreement. The Union asserts that even if that employee had the right to grieve the conduct after hiring, that is not the issue here. The issue was said to be the right of the Union to ensure compliance with the collective agreement. The Union asserts that the Employer's conduct in this case undermines its relationship with its members. The Union asserts that it need not show specific harm in order to launch a grievance in this regard. By way of remedy, the Union is seeking a declaration that the collective agreement has been violated and three weeks' salary either for the teacher or a named bursary. The purpose of the declaration was said to be that the College be shown that its conduct is unacceptable. In the future, it was suggested that if a situation like this occurs, the College ought to notify the Union as to the circumstances. ReDly of the EmDIover Counsel for the Employer stated that it was "offensive" for the Union to suggest on the basis of these facts that the College has asserted that it could do anything it wanted. On the contrary, it was asserted that the College simply accommodated AH's request for a convenient start date and that no waiver of the collective agreement was ever intended, requested or demanded. Further, it was pointed out that no harm has occurred because A.H. was assigned the very courses that were discussed with her around the time of her hiring in late May and early June. Therefore, she was well aware of her teaching responsibilities long before the six weeks notice contemplated for the delivery of a SWF. Turning to the technical violations of the timing provisions in Article 11.02, counsel for the College reasserted that if any problem arises because of this type of thing, the appropriate forum is to deal with it under Article 11.02. The Decision The threshold question in this case is whether the Board of Arbitration has jurisdiction to hear and determine the grievance. The grievance alleges breaches of Article 1 as well as Articles 11.02 1 A and 11.02 A 5. The Union asserts that the "crux of the case" is the allegation that the College violated Article 1, the Union recognition clause by negotiating directly with an individual teacher. There is no question that a board of arbitration would have jurisdiction to hear such a matter and that this type of allegation would be a proper Union grievance. See Loyalist College, supra._ Therefore, dealing at this point with only this aspect of the grievance, we must examine the facts to see if the evidence supports the Union's assertions. The agreed facts reveal that the College agreed to a prospective teacher's request to commence employment approximately three weeks before the Fall term commenced. The College therefore agreed to hire the teacher and agreed to a start date for her employment. This was done with notice to the Union at the time that the teacher was hired. The facts reveal absolutely no attempt to undermine the role of the Union or the terms of the collective agreement. There is simply no factual basis to support a finding that there has been a breach of Article 1 of the collective agreement. Therefore this aspect of the grievance is dismissed. This leaves us with the allegation that there has been a violation of Articles 11.02 A1 and 11,02 A5. The agreed facts do disclose that the SWF was not delivered six weeks prior to the start of classes, nor was the timetable delivered two weeks before the term commenced. However, the important question is what, if anything, this Board of Arbitration has authority over in light of these facts. The simple answer is that the Collective Agreement gives this Board of Arbitration no jurisdiction over the complaints about the delivery of the SWF or the timetable. Article 11 sets out a comprehensive code and procedure for dealing with the differences that arise with regard to the interpretation, application, administration or alleged contravention of Articles 11.01 and 11.02. The allegations here are that the Employer violated Article 11.02. However, Article 11.02 A 6 (a) dictates that such allegations shall be discussed with the immediate supervisor and if they are not resolved, they must be referred by the teacher or the Union to the Workload Monitoring Group (WMG). Both the new teacher and the Union have the right to make such a referral. These rights are acknowledged by the College and have been affirmed by the Court of Appeal in the George Brown case, supra. This dual right undoubtedly exists to provide some protection to new and other staff in the event they feel uncomfortable or uncertain about asserting contractual rights. Provision is made for the Union to protect the contractual and individual rights in these circumstances. However, the forum for the complaint is not grievance arbitration. It is the WMG. The Collective Agreement could not be clearer. It refers to differences arising with respect to Article 11.01 and 11.02 as "complaints" that are to be processed at the WMG forum. In contrast, the Collective Agreement mandates that "grievances" arising with respect to workload issues "other than 11.01 and 11.02" are to be referred to arbitration. Therefore, the Collective Agreement draws a clear distinction between the 11.01 and 11.02 "complaints" and other types of workload "grievances." Therefore, Article 11.01 and 11.02 complaints can only be dealt with by the Workload Monitoring Group or ultimately Workload Resolution Arbitration. They are not within the jurisdiction of a grievance arbitration board under this Collective Agreement. Indeed, the enumerated functions of the WMG illustrate its suitability for matters such as the ones raised by this case. The WMG can review the individual workload assignment (11.02 C 1 9 (iv)), give consideration to the nature of the subjects to be taught (11.02) C 2 (i)), consider the lead time for preparation of the new schedule (11.02 C 2 (viii)) and look at the timetabling of the workload (11.02 C 2 (xii)). These functions give the WMG the power and the authority to deal appropriately with matters within its expertise. This is probably why the parties to this Collective Agreement have contracted to keep complaints and difference concerning Articles 11.01 and 11.02 within the exclusive jurisdiction of the WMG and the WRA. The functions and mandates of the WMG and the WRA illustrate how well they are suited for the task. In the case at hand, the WMG could consider the nature of the new teacher's courses, the time available for her to prepare for the new term and the timetabling of her classes. If a complaint had been lodged, a practical and timely resolution could have been achieved. All this was available to the new teacher AH or the Union in this case. The College affirms that the procedure was available to her if she had any complaints about her assignments. Quite appropriately the COllege does not claim that a new teacher is barred from accessing the WMG or the WRA procedures in the same way that a new teacher would be barred for four months from filing a grievance under Article 32.01. Therefore, the Union of a new teacher is not without an ability to file and lodge a complaint about workload or timetable despite the fact that that a new teacher may not have access to the grievance procedure. Therefore, while the Board of Arbitration may not have jurisdiction over the SWF and timetable complaints such as the ones raised by this case, this does not mean that a new teacher who is dissatisfied with his/her assignment or timetable could not have access to a dispute resolution mechanism well suited to deal with the matter. For all these reasons, it must be concluded that where a new teacher or the Union has a concern about the delivery of the SWF or a timetable, those concerns can be addressed at the WMG pursuant to Article 11.01 A 6 (a). Failing resolution, the teacher can refer the complaint to the WRA. These procedures offer a comprehensive and exclusive dispute resolution mechanism that confines grievance arbitration of workload matters to issues outside of ^rticles 11.01 and 11.02. Therefore, we must conclude that we have no jurisdiction over the specific allegations in this case concerning the delivery of the timetable or the SWFs to a new teacher. This decision is consistent with the ruling in George Brown College (Snow), Niagara College (supra) and George Brown College (Thorne), supra. Before concluding, it is appropriate to note that the allegations in this case reveal no suggestion of harm or inconvenience to this teacher. Even if the jurisdictional issues had all been resolved in the Union's favour, we would have denied the substantive issues raised by this case on their merits. It is true that the facts reveal that the timelines set out in Article 11.02 ^ l(a) and 11.02 A5 were not met. However, this teacher's employment commenced on the day that she requested. She was assigned the same courses that were discussed with her at the time of her interview and job offer. There is no evidence that she has been inconvenienced or had any complaint about her treatment. She signed her acceptance of the SWF before classes commenced. The Union was also informed about her hire and her start date. It has suffered no loss of authority over these events. While the lack of harm may not be germane to our conclusion that we have no jurisdiction over the Article 11.02 complaints, it is consoling to note that we can conclude this case without any concern that either the teacher or the Union has been harmed by the events which gave rise to this case. For all these reasons, the grievance is dismissed. DATED at Toronto, Ontario this 12th day of May, 2004. · Paul'a Knopf- Chair I concur "R. O'Connor" College Nominee I concur "Michael Sullivan" Union Nominee