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HomeMy WebLinkAboutUnion 02-10-30 IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE (the "College") - and - ~' ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 415 (the "Union") AND IN THE MATTER OF A UNION GRIEVANCE PAULA KNOPF SOLE ARBITRATOR INTERIM AWARD #2 For the College George Vuicic, Counsel For the Union Peggy Smith, Counsel ' The hearing in this matter was held in Ottawa, Ontario on October 16, 2002 NOV-O4'2002 13:58 FR01l:6135487624 P. OOZ 961 _ This case arises out. of a Union grievance alleging that the College has failed to designate, post and fill full-time positions in the Language, Training/General Arts and Science Department, "French as a Second Language" area (hereinafter referred to as FSL). On the first day of the proceedings, the College raised preliminary objections lro the jurisdiction of an arbitrator to hear the case, arguing that the work in question is excluded from the coverage of the collective agreement. Further, it was argued that the FSL course activity is within the continuing education designation and therefore excluded from the ambit of the posting requirements of Article :2?.rd or' thc collective agreement, l'n a decision dated August 3, 2001, the jurisdiction issue was resolved as follows: I note that the Union has recognized in its submissions that non-credit courses are treated differently than the credit courses. Therefore, I must conclude that lhis arbitrator has jurisdiction to determine whether the FSL credit course arrangements at the College comply with articles 2.02 and 2.03 A Therefore t have concluded that I have jurisdiction to consider whether the FSL credit course assignments comply with articles 2.02 and 2.03 A of the collective agreemenL I have also concluded that article 26.16 does not preclude consideration of the combined co- ordination and teaching of credit courses in the FSL department for purposes of articles 2.02 and 2.03 A. I have not answered the question of the effect of article 27.16 on any full-time positions that the Union may be able to establish in FSL. But that is not a jurisdictional question. That goes to the merits of the case and the ex'tent of remedies that may be available. When the case resumed for hearing on the merits in October 2002, a second preliminary issue emerged when counsel for the College advised the Union that the College would be calling evidence and presenting arguments regarding the meaning of "credit courses". In particular, the College signaled that it intended to NOV-04-2002 13:58 FROM:6135487624 ¢.OO3 argue that some of the funded FSL course activity should not be deemed or treated as credit activity. The Union objected to the College being able or allowed to assert that some funded courses are nof~ credit courses. The Union stresses that the positions ' of the parties and their arguments on the first day of hearing were premised on the case law and long accepted assumption that the distinction between credit and non- credit courses is synonymous with the fact of whether they are funded or not. The Union stresses that this premise was the basis of it conceding at the outset, of these proceedings that the 'arbitrator had no jurisdiction Over the non-funded or non-credit course activity. The Union asserts that the College has never before raised the issue or treated some funded courses differently than o[hers. Counsel for the Union argued that if the College intended to draw any distinctions, differentiating jurisdiction within the funded or credit course activity, this should have been signaled on or before the firsl day of hearingL Counsel for the Union argues [hat the College is simply attempting to take "another kick at the cat" by raising a second jurisdictional objection over some of the credit work in question. The Union asked that the parties be ordered to proceed solely on the basis of an exploration of the funded credit courses. The College responded by stressing that it does not view this issue as a jurisdictional one. The Cotlege indicated that it accepts the original interim award wherein this arbitrator declared that there was jurisdiction to look at credit course activity in FSL to determine compliance with the col ective agreement. The College now asserts that such an-enquiry will demand a determination of what "credit" activity means. The College argues that nothing to date defines what credit activity ' means. The College submits that it is entitled to present evidence and argument on : 'the meaning of "credit" within this grievance arbitration. ' NOV-04-2002 14:02 F~0~:6135,~8l(;'~, P. O03 961 The Union responded by submitting that the College is essentially raising a second jurisdictional objection to arbitrability. The Union simply asserts that it is far too late in the day to raise such a fundamental issue in these proceedings. The parties sought an interim ruling on this matter, The Decision This preliminary issue raises a question of process. Should the College be allowed [o present a defence to the grievance that was never raised prior to the second day of proceedings? The main problem with the College's position is one of timing. Despite the concern already expressed by this arbitrator about raising arguments at a hearing that were never addressed by the parties during the grievance procedure, this has occurred for the second time in these proceedings. The initial interim award stated: .... As a matter of basic labour relations, it is critical that the parties address all the issues in dispute in the grievance step process. This ensures the proper utilization and administration of the grievance and arbitration provisions of a collective agreement. This is the only way that the parties can come to understand each other's case and try to achieve resolution on their own. That is why arbitrators do not allow parties to raise issues at a hearing that have not been discussed in the grievance step process. It is especially unfortunate and difficult when a party raises an important jurisdictional objection the day before the case is convened for a hearing on the merits of a grievance, This deprives the parties of the timely chance to address serious questions regarding the scope and the intent of their collective agreement, as well as the implications of the grievance itself .... NOV-O4-ZQQ2 13:58 FROM:$135483824 P. OO4 Despite those words, it appears that prior to the second day of hearing, the Union was advised for the first time that the College would no[ view all funded FSL courses as credit courses. The College has now made it clear that it intends to call evidence to establish that funding alone should not be the determining factor of whether course activity should be considered as credit or not. It is inescapable to say that if the jurisdiction of this arbitrator is over credit FSL courses, a fundamental question will be what are credit courses. Therefore, it is apparent wh~ the College would want to call evidence about what should be considered credit course activity or not. There are no pleadings in arbitration and, without a specific ruling, there are no formal requirements for disclosure. This is partly because arbitration is designed to be efficient. No one wants the process to become bogged down with the pre-trial motions and complications that occur in civil proceedings. However, arbitration is also designed to be fair. It cannot fulfil the dual purposes of fairness and efficiency if fundamental issues are sprung upon the opposite party in the midst of proceedings. That type of tactic results in delays to enable the one side to respond. More importantly, it does injustice to a collective agreement's grievance resolution process. The grievance step process exists to reveal the issues so they can be discussed, understood and resolved by the parties themselves wherever possible, The arbitration process exists merely to resolve the issues that the parties have tried but failed to resolve on their own. Again, this is why arbitrators are reluctant to allow parties to raise new issues in arbil, ration that were never discussed by the parties in their grievance process. For all these reasons, it is very tempting to preclude the College from trying to establish a new or different definition of credit courses at this stage in the proceedings because it was never asserted earlier. NOV-04-2002 14:02 FROM:613§487624 P. O02 However, this particular case has evolved somewhat unusually. The arbitration began with jurisdictional objections. The cases cited by .the College on the jurisdictional argument refer to credit and funded courses synonymously. See OPSEU and George Brown College, unreported decision of Mort' Mitchnick dated February 16, 1993 (Benhaggai grievance) and Cambrian Co//ege and OPSEU, unreported decision of Michel Picher dated February 27, 1996 (Paquin). These were the cases that brought to light the credit/funded issue. The jurisdictional issues were resolved with a ruling accepting authority over the credit aspect of FSL activities. Only with the issuance of thai ruling did the importance of credit activity become focused. Therefore, it can be understood why the credit aspect did not emerge as a fundamental issue earlier. Other than relying on the cases cited above, nothing in the College's presentation on the first day signaled an acceptance of the notion that funded courses are necessarily' credit courses. If this College now wants to clarify, limit or amend the notion that credit courses are something other than funded courses, this may have very profound implications upon the administration and application of this collective agreement on a province-wide basis. However, it cannot be concluded that the College is essentially raising another jurisdictional argument when it announces that it will call evidence to establish what constitutes credit course activity. To deny the College this opportunity could result in a denial of a fundamental defence. To allow the College to do so despite the fact that the matter was never raised earlier could seriously prejudice the Union if certain safeguards are not put in place. An arbitrator has control over the process of a hearing, But for the fact that the issue only emerged or became focused after the issuance of the original interim ruling, I would have precluded the College from presenting this defence as a matter of process and fairness. However, given the unusual evolution of these proceedings, I have reluctantly concluded that the College should not be precluded from presenting evidence and argument on what constitutes credit course activity in the FSL programme. In order to protect and balance the interests of the padies, this evidence can only be presented under the following conditions: · Within two weeks after the issuance of this Interim Award, the Union shall list for [he College all the course activity that the Union intends to assert constitutes credit activity within the FSL programme covered by this grievance, · The College must disclose to the Union, within two weeks of the receipt of the Union's listed course activity, full particulars of the facts, arguments and documentation it intends to rely upon on the credit activity issue, · The College is also required to deliver to the Union all documentation it intends to rely upon in this case no later than six weeks prior to the next day of hearing. . · The College will be precluded at the hearing from presenting evidence or arguments on the credit course activity issue or other issues that have not been raised and discussed with the Union in the course of the grievance procedure or prior to six weeks before the next day of hearing. The matter shall proceed to a hearing on the merits on the date(s) to be determined at the parties' earliest mutual convenience. Paula~Kn~opf- Sole Arbitrator Nov-04-2002 14:0Z FR0~:6135481524 P. 001 96~