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HomeMy WebLinkAboutUnion 88-10-28 BETWEEN : ONTARIO COLLEGE OF REGENTS FOR COLLRGES OF APPLIED ARTS AND TECHNOLOGY (CAMBRIAN COLLEGE) - and - ONTARIO PUBLIC SERVICE EMPLOYEES'UNION (FOR ACADEMIC EMPLOYEES) (No. 85A167) BOARD: Martin Teplitsky, Q.C., Chairman Israel Freedman Allen S. Merritt ~ . APPEARANCES: On behalf of the Union: Roman E. Stoykewych, Counsel On behalf of the College: Michael Hines, Counsel Hearing held Thursdav, October 27th,1988 in Sudbury. 2 The Union grieves the assignment by the College to a teacher of a workload in excess of that allowed by the Collective Agreement. There is no doubt that the assignment is in breach of the Agreement. Accordingly, the declaration which the Union seeks as the only relief in the case, appears to be quite unnecessary. For reasons, which I need not explore, the teacher did not grieve. The Union ultimately took the matter to the Workload Monitoring Group and then to a Workload Resolution Arbitrator who dismissed the grievance on a preliminary objection that the Union has no status, to grieve. The matter came before this Board and the same preliminary objection and two others were raised. Article 4.02 (i) and (ii) (f) provide: "(i) In the event of any difference arising from the interpretation, application, administration or alleged contravention of ARticle 4.01 or 4.02, a teacher shall discuss such difference as a complaint with the teacher's immediate supervisor. The discussion shall take place within fourteen (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 agree to have other persons in attendance. The immediate supervisor's response to the complaint shall be given within seven (7) days after discussion with the teacher. Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the Group within seven (7) days of receipt of the i~mediate supervisor's reply. The complaint shall then follow the procedures outlined in Articles 4.02(2) through 4.02(6). (ii) Grievances arising with respect to Article 4, other than Articles 4.01 and 4.02 shall be handled in accordance with the grievance procedure set out in Article 11." The grievance alleges a breach of Article 4.01. It is clear from this provision and others in the Collective Agreement that the Union has no right to bring this matter before us. Indeed, the teacher could not have. His only remedy was through the Workload Monitoring Group and the Workload Resolution Arbitrator° Mr. Stoykewych submitted that Articles 4.01 and 4.02 provide certain obligations in favour of the Union which, if these sections were literally applied, prevented any relief in contravention of the College's Collective Bargaining Act, in particular, Sec. 46(1) and (2) which provide: "46.--(1) Every 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. (2) Unless an agreement otherwise provides for the final and binding settlement of all differences between an employer and the employee organization arising from the interpretation, application, administration, or alleged contravention of the agreement, the agreement is deemed to include the following provision: Where a difference arises between en employer and the employee organization relating to the interpretation, application or administration of this agreement, or where an allegation is m&de that this agreement has been contravened, including any question as to whether the matter is arbitrable, either the employer or the employee organization may, after exhausting any grievance procedure established by 'this agreement, notify the other in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of its appointee to. an arbitration board. The recipient of the notice shall within five days inform the 'other either that it accepts the other's appointee as a single arbitrator or inform the other of the name of its appointee to the arbitration board. Where two appointees fail to agree upon a chairman within the time limited, the appointment shall be made by the Commission upon the request of either the employer or the employee organization. The single arbitrator or the arbitration board, as the case may be, shall hear and determine the difference or allegation and shall- issue a decision and the decision is final and binding upon the employer and the employee organization and upon any employee affected by it. The decision of a majority is the decision of the arbitration board, but, if there is no majority, the decision of the chairman governs. The arbitrator or arbitration board, as the case may be, shall not by his or its decision add to, delete from, modify or otherwise amend the provisions of this agreement." Mr. Hines did not respond to this latter submission asserting that he was not prepared to do so. What is relevant is that even if it were correct (it may be, I express no final opinion), it would not assist the Union in this case. It is not a violation of the statutory policy set forth in Section 46 for the parties to confine to a teacher the right to grieve or to channel such grievance through a Workload Resolution Arbitrator. In the circumstances, the grievance is dismissed and it is not necessary to .comment on the other preliminary objections° DATED the 28th day of October, 1988. ISRAEL ~~E~D~ ALLEN S. MERRITT