HomeMy WebLinkAboutUnion 89-03-29BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND IN THE MATTER OF UNION GRIEVANCE NO. 88B718 RE PARTIAL
CONTACT HOURS
BOARD OF ARBITRATION: Kevin M. Burkett - Chairman
Rene St. Onge - College Nominee
Joe Herbert - Union Nominee
APPEARANCES FOR THE Robt. J.Atkinson - Counsel
COLLEGE: Ingrid Hobbs - Personnel Officer
APPEARANCES FOR THE P.J. Lukasiewicz -Counsel
UNION:
A hearing in this matter was held in London, Ontario on Thursday,
January 12, 1989
AWARD
1. The union grieves in this matter that the college is
in breach of article 4.01(3) of the collective agreement by
reason of having assigned partial teaching contact hours.
Article 4.01(3) stipulates that "each teaching contact hour
shall be assigned as a fifty (50) minute block plus a break of
up to ten (10) minutes" The union claims that individual
teachers at this college are being assigned contact hours in
30 minute blocks. The union seeks to have the standard-workload
forms (SWF's)of the affected teachers altered to reflect the
requirements of article 4.01(3); that is, to have the 30 minute
blocks adjusted to 60 minute blocks, and to have compensation
for this additional time awarded. This matter is brought by way
of a union policy grievance under article 11.10 of the collective
agreement.
2. By way of general background it is to be noted that in
1987 the union processed an individual complaint under article
4.02 alleging a breach of article 4.01(3) by reason of scheduling
teaching contact hours in less than 50 minute blocks. An award was
handed down by Workload Resolution Arbitrator (WRA) Foster,
appointed pursuant to article 4.02(5) (a) of the collective
agreement. The award of Arbitrator Foster, dated November 27,
1987, upheld the union complaint. The arbitrator found that
under article 4.01(3) the teaching contact hours "should have
been rounded off one way or the other". Following release of
that award the union sought to have its finding given general
application. The college, in refusing, relied on article 4.02(6) (f)
that provides in part that "the award shall only have application
to the teacher affected by the matter and shall have no applica-
tion beyond the end of a twelve month period from the date of the
beginning of the workload assignment". The college continued
to take the position that it was free to assign less than 50
minute blocks of contact time to other teachers. It is agreed
between the parties that the-union attempted to solicit grievances
.from individual teachers but was unsuccessful. The union responded b~
filing the instant policy grievance under article 11.10.
3. The college raises two preliminary objections to the
arbitrability of this matter under article 11.10. The company
argues firstly that because the subject matter is a workload
complaint under article 4.01 it must be processed under article
4.02. The company relies on article 4.02(1) (f) (ii) which
stipulates that "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 company
maintains that the procedure set out in article 4.02 is a separate
and exclusive procedure for the resolution of workload complaints.
The company submits that the exclusivity of the procedure is
reinforced~by article 4.02(6) (1) which stipulates that "having
regard to the procedures set out herein for the resolution of
disputes arising under 4.01 and 4.02 no decision of the Group or
award of the WRA is subject to grievance or any other proceeding"
Accordingly, the grievance having been brought under article 11.10,
the company asks us to find that it is not arbitrable.
o
4. The company argues in the alternative that even if the
grievance is not barred by the operation of article 4.02(1) (f) (ii)
this grievance fails to satisfy the prerequisites for the filing
of a grievance under article 11.10 of the collective agreement.
The company maintains, firstly, that this is a matter "upon which an
individual employee would be personally entitled to grieve" and,
secondly, there is'no evidence of there having been any "adverse
effects upon the rights of persons in the bargaining unit". The
company submits that to show a potential adverse effect, as distinct
from a real adverse effect, is insufficient. The company asks us
to find, therefore, that, in any event, this grievance is in-
arbitrable under article 11.10.
5. The union argues that the procedure set out in article
4.02 is designed to deal with individual teacher complaints as
distinct from questions of general interpretation. The union
submits that there is nothing in article 4.02 that takes away the
union's right under article 11.10 to grieve in respect of the
"interpretation, application, administration or alleged contra-
vention of the agreement". Confederation College and OPSEU,
June 18, 1984, unreported (Burkett) is cited in support of this
proposition. The union asks us to find that the prerequisites
to the filing of a policy grievance have been satisfied in that
it has attempted to have individual employees grieve and that
the grievance alleges the application of an unreasonable standard
(teaching contact hours of less than 50 minute blocks) that is
patently a violation of the collective agreement and that adversely
affects the rights of employees in the bargaining unit. The union
points out that if its position is not sustained the union is
left without a means of challenging the college's decision to
assign teaching contact hours in less than 50 minute blocks
so long as individual employees choose not to grieve. The
union asks us to find that in the absence of express language
providing for this result we cannot infer that it was intended.
6. The relevant provisions of the collective agreement are
set out below:
"ARTICLE 4 - WORKLOAD
4.01 (1) Each teacher shall have a workload that adheres
to the provisions of this Article.
4.01 (2) (a) Total workload assigned and attributed by
the College to a teacher shall not exceed forty-four
(44) hours in any week for up to thirty-six (36)
weeks in which there are teaching contact hours
for teachers in post-secondary programs including
nursing and for up to thirty-eight (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.
4.01 (2) (b) A "teaching contact hour" is a College
scheduled teaching hour assigned to the teacher by
the College.
4.01 (3) Each teaching contact hour shall be assigned as
a fifty (50) minute block plus a break of up to
ten (10) minutes.
The voluntary extension of the teaching contact
hour beyond fifty (50) minutes by the teacher and
any student(s) by not taking breaks or by re-
arranging breaks or by the teacher staying
after the period to consult with any student(s)
shall not constitute an additional teaching
contact hour.
4.01 (4)' (a) Weekly hours for preparation shall be
attributed to the teacher in accordance with
the following formula:
RATIO OF ASSIGNED TEACHING
TYPE OF COURSE CONTACT HOURS TO ATTRIBUTED
HOURS FOR PREPARATION
New 1:1.10
Established A 1:0.85
Established B 1:0.60
Repeat A 1:0.45
Repeat B 1:0.35
Special A as indicated below
Special B as indicated below
4.01 (4) (b) No more than four (4) different course
preparations or six (6) different sections shall
be assigned to a teacher in a given week except
by voluntary agreement which shall not be
unreasonably withheld.
4.01 (5) (a) Weekly hours for evaluation and feedback in
a course shall be attributed to a teacher in
accordance with the following formula:
RATIO OF ASSIGNED TEACHING CONTACT HOURS TO
ATTRIBUTED HOURS FOR EVALUATION AND FEEDBACK
Essay or Project Routine or In-Process
Assisted
1:0.030 1:0.015 1:0.0092
per student per student per student
4.01 (9) Teaching contact hours for a teacher in post-
secondary programs (which shall be understood
to include Nursing) shall not exceed eighteen
(18) in any week. Teaching contact hours for
a teacher not in post-secondary programs shall
not exceed twenty (20) in any week.
4.01 (11) (a) Contact days (being days in which one or
more teaching contact hours are assigned) shall
not exceed one hundred and eighty (180) contact
days per academic year for a teacher in post-
secondary programs or one hundred and ninety
(190) contact days per academic year for a
teacher not in post-secondary programs.
4.02 (1) (a) Prior to the establishment of a total work-
load for any teacher the supervisor shall discuss
the proposed workload with the teacher and complete
the Standard Workload Form (SWF), attached as
Appendix VIII, to be provided by the College. The
supervisor shall give a copy to the teacher not
.. later than six (6) 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.
4.02 (1) (b) The SWF shall include all details of the total
workload including teaching contact hours, ac-
cumulated 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.
4.02 (1) (c) 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 Workload
Monitoring Group (Group).
4.02 (1) (d) In the event that the teacher is not in
agreement with the total workload and wishes it
to be reviewed by the Group, the teacher must
so indicate in writing to the supervisor within
three (3) working days from date of receipt of
the SWF.
Absent such indication, the teacher shall be
considered to be in agreement with the total
workload. The completed SWF will be forwarded
by the supervisor to the Group within three (3)
working days from date of receipt from the teacher
with a copy to be given to the teacher.
o
4.02 (1) (f) (i) In the event of any difference arising
from the interpretation, application, administra-
tion or alleged contravening 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
the 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 agreed to have other persons in attendance.
The immediate superv~sor'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 immediate
supervisor's reply. The complaint shall then follow
the procedures outlined in Articles 4.02(2) through
4.02 (6).
4.02 (1) (f) (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 II.
4.02 (2) (a) There shall be a College Workload Monitoring
Group at each College.
4.02 (3) (a) The functions of the Group shall include:
(i) reviewing workload assignments in general
at the College and re.solving apparent
inequitable assignments;
(ii) reviewing specific disputes pursuant to
Article 4.02(1) (d) and/or 4.02(1) (f) (i) 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 14 as to amendments or
additions to the provisions governing
workload assignments at the College for
local negotiation in accordance with
Article 4%02(7) in order to address
particular workload needs at the College.
4.02 (3) (b) The Group shall in' its consideration have
regard to such variables affecting assignments
as:
(i) nature of subjects to be taught)
(ii) level of teaching and experience of the
teacher and availability of technical 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;
(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;
(x) students with special needs;
(xi) introduction of new technology;
(xii) the timetabling of workload.
4.02 (4) (d) Any decision made by a majority of the Group
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
President of the Union Local as soon as possible
after the decision is arrived at.
4.02 (4) (e) Such decision shall be binding on the College,
.the Union Local and the teacher involved.
4.02 (5) (a) If, following a review by the Group of an
individual workload assignment which has been
forwarded to the Group, the matter is not
resolved, the teacher shall be so advised
in writing. The matter may then be referred
by the teacher to a Workload Resolution
Arbitrator (WRA) provided under the agreement.
Failing notification by the Group within three
(3) weeks of the referral of the workload
assignment to the Group, the teacher may refer
the matter to the WRA.
4.02 (6) (~) A WRA shall, following the informal dis-
cussions 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 (10)
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.
4.02 (6) (h) 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 11.
4.02 (6) (i) Having regard to the procedures set out herein
for the resolution of disputes arising under 4.01
and 4.02, no decision of the Group or Award of the
WRA is subject to grievance or any other proceeding.
4.02 (6) (k) Where a referral is made to the Group or the
WRA by more than one teacher, references in the
article to "teacher" shall be read as "teachers"
11.09 Group Grievance
In the event that more than one employee is directly
.i~ffected by one specific incident and such employees
would be entitled to grieve, a group grievance shall
be presented in writing by the Union signed by such
employees to the Director of Personnel or as designated
by the College within twenty (20) days following the
occurrence or origination of the circumstances giving
rise to the grievance commencing at Step No. 1 of the
Grievance Procedure. Two grievors of the group shall
be entitled to be present at meetings in Step No. 1
or 2 unless otherwise mutually agreed.
10.
11.10 Union Grievance
The Union 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 a 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 unreason-
able standard that is patently in violation of this
Agreement and that adversely affects the rights of persons
in the bargaining unit.
Such grievance shall be submitted in writing by the Union
Grievance Officer at Head Office or a Local President to
the Director of Personnel or as designated by the College,
within twenty (20) days following the expiration of the
twenty days from the occurrence or origination of the
circumstances giving rise to the grievance commencing
at Step No. 1 of the Grievance Procedure set out above. "
7. The Board, having considered the submissions of the parties,
made an oral ruling rejecting the College.'s challenge to our juris-
diction. We hereby confirm our ruling which was as follows:
"The issue is whether the union can bring a policy grievance
under article 11.10 alleging a violation of article 4.01(3)
with respect to the assignment of teaching contact blocks
of less than 50 minutes. Because of the unique configuration
of facts in this matter we do not'have to decide if the union
can proceed by means of a policy grievance under article
11.10 by reason solely of an announced policy of the college.
In this case there are three critical facts that shape our
consideration. Firstly, there is the prior award under
article 4.02 in which it was found that under article 4.01(3)
"each contact hour shall be assigned as a 50 minute block
plus break". It should be noted at this point that under
article 4.02(6) (f) "the award (under article 4.02) 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". Secondly, there.is the fact of the college's
refusal to give the prior award general application. The
college continues to take the position that it is free to
assign contact hours in less than 50 minute blocks.
Thirdly, there is the fact of the union attempting to have
individuals grieve the continued assignment of contact
hour .blocks of less than 50 minutes.
When we consider the position of the college vis-a-vis our
lack of jurisdiction to entertain this grievance under
article 11.10 in light of these facts we are inescapably
drawn to the conclusion that the interpretation of article
4.02 advanced by the college is an anomaly that could never
have been intended. Under the college's interpretation the union
is without the means to unilaterally initiate a policy grievance
challenging a general misapplication of the threshold workload
standards stipulated in article 4.01 (i.e. total work load,
teaching contact hours, ratio of assigned teaching contact
hours to attributed hours for preparation, maximum number of
course preparations, etc.). Under the college's inter-
pretation any grievance claiming a breach of these standards
must be filed by an individual teacher or group of teachers
and the remedy applies only to the grievors and only for twelve
months, even though the agreement extends beyond this twelve
month period. It would be unusual, to say the least, for
the parties, on the one hand, to set out clearly defined
threshold standards and, on the other hand, deny the union
the means to obtain the consistent application of these
standards across the bargaining unit for the duration of the
agreement. The college interpretation opens the door to the
application of different standards for different teachers.
If there is no means available to the union to enforce the
consistent application of these standards the college is free
to impose standards different than those set out in the
agreement as long as the affected individuals decline to complair
under article 4.02. This result is counter intuitive from a
labour relations perspective. More importantly, article 4.01(1)
stipulates that "each teacher shall have a workload that adheres
to the provisions of this article" Article 4.01(1) evidences
the intention of the parties that the workload standards be
applied evenly and consistently across the bargaining unit.
It could never have been intended, therefore, that standards
different than those provided for in article 4.01 be permitted
under any circumstances.-
Whereas it could be argued that the complaint procedure in
article 4.02 is restricted to individual complaints in respect
of the subject matters listed in article 4.02(3) we are content
to find that article 4.02(f) (ii) does not apply where the college
is refusing to apply a threshold standard that has been the
subject of a prior award under article 4.02 upholding the
interpretation of the standard advanced by the union. In these
circumstances the refusal of the college to accept and apply the
interpretation of a threshold standard accepted by the work-
load arbitrator must be construed as an application of "an
unreasonable standard that is patently in violation of this
agreement" within the meaning of article 11.10 of the collective
agreement. It should not surprise the college that the continued
application of a workload standard already found to be in breach
of the agreement constitutes a patent violation of the agreement.
Where, as in this case, there is a patent violation, where the
violation adversely affects the rights of persons in the bargainJ
unit, as this one does, and where the employee(s) has not grieve¢
as in this case, it must be found that the prerequisites to the
filing of a union policy grievance under article 11.10 have
been satisfied and that the processing of such a grievance to
arbitration, as the only means of ensuring general compliance
with article 4.01(1), is not barred by the operation of
article 4.02(1) (f) (ii) of the collective agreement. "
13.
8. We find support for our finding on the preliminary
objection to our jurisdiction in re Confederation College and
O.P.S.E.U. '(June 18, 1984) unreported (Burkett). In that case,
in dismissing the college's assertion that a grievance alleging
the assignment of teaching hours that exceeded the maximum
stipulated in the then article 4 could not be filed under article
11, we found
"There is no dispute that the maximum hours and contact
days set out in article 4.01 are intended to apply
across the system. It is equally clear that the
variables which are to be given consideration under
article 4.02, the article establishing the CIAC, pertain
to the carrying out of all work-related assignments within
a particular college. Having regard to the general thrust
of these sections it would, in our view, require clear and
unequivocal language to support a finding that the parties
intended a local committee to have the power to override
the system-wide maximums that they have established .......
In the face of the express prohibition against unilaterally
assigning a teaching master teaching hours in excess of the
stipulated maximum, the grant of authority to the CIAC in
articles 4.02(a) (i) to "consider the application of
section 4.01 to the instructional assignments across the
college" is best read as allowing the CIAC to compare and
assess the assignments (made within the stipulated teaching
maximums) of the teaching masters across the college and not
as a grant of authority requiring that these matters be put
before the CIAC and thereby permitting the CIAC to deal with
and perhaps override these stipulated maximums. It follows,
therefore, that any alleged breach of the stipulated maximum
teaching hours or contracts under article 4.01 need not be
referred to the CIAC under article 4.02 as a precondition to
a referral to arbitration under article 11. "
9. We now turn to the merits. The union submits that
article 4.01(3) clearly and unambiguously requires that each
teaching contact hour be assigned as a 50 minute block. The college,
on the other hand, submits that the concept of a teaching contact
14.
hour is a notional standard in relation to which other workload
factors are enumerated and maximums determined. Tke college
points out that neither the ratio of assigned teaching contact
hours to attributed hours for evaluation and feedback nor the maximum
hours under article 4.01(a) precludes the fractionalization of teaching
contact hours. The college points out further that under the second
paragraph of article 4.01(3) teaching contact hours may be voluntarily
extended beyond 50 minutes. The college submits that when the
notional concept of a teaching contact hour is understood and
considered within the context of article 4.01, read as a whole, it
must be found that there is no prohibition against the fractionaliza-
tion of teaching contact hours.
10. We reject the position advanced by the college. Article
4.01(3) is unequivocal in its requirement that "each teaching contact
hour shall be assigned as a fifty (50) minute block plus a break
of up to ten (10) minutes". We agree that the teaching contact
hour concept is notional. However, the clause has been drafted
to be mandatory as distinct from Permissive in its application. More
importantly, if it had been intended that the teaching contact
hours could be fractionalized there would have been no need for the.
clause. The ratio of assigned to attributed hours and the stipulated
maximum total teaching hours found elsewhere in the clause would be
sufficient to provide for the degree of regulation sought by the
college. The sole purpose of article 4.01(3) is to regulate the
length of a teaching contact hour as 50 minutes plus a 10 minute
break. Accordingly, any assignment of teaching contact hours in
blocks of less than 50 minutes plus a 10 minute break, except where
15.
voluntarily extended under the second paragraph of article
4.01(3), is in violation of the collective agreement.
11. We now turn to the question of remedy. The union seeks
a declaration, a direction to the college to round the frac-
tionalized teaching contact hours upward, and an order for
compensation based on the upwardly adjusted teaching contact
hours. The college maintains that anything more than A declaration
would, in effect, allow the union to gain through a policy grievance
what can only be gained through an individual grievance. The
college submits that this is.not permitted under article 11.10.
The college submits authority for the proposition that the relief
flowing from a union policy grievance is restricted to a declara-
tion. The college argues in the alternative that to award anything
more than declaratory relief in this matter would be to provide
the affected employees with a windfall in the form of payment for
time not worked.
12. We are persuaded by the college's alternative argument
and, therefore, do not have to answer the broader question.
Although we are dismayed by the college's refusal to apply a
threshold standard, as clearly defined in the collective agreement
and in a prior arbitration award, we are not about to use our
remedial authority to punish the college or to cause a windfall
to go to the affected teachers as would be the result if we were
to award them compensation requested by the union. Rather, we
hereby declare that the college is in violation of article 4.01(3)
of the collective agreement by reason of assigning teaching contact
16.
hours in less than 50 minute blocks. Furthermore, we hereby
direct the college to forthwith take whatever steps are necessary
to bring its teaching assignments within the requirements of
the collective agreement.
13. We remain seized in the event of any difficulty with
the implementation of our award.
DATED at Toronto the 29th day of March>~9.
/
"Rene St. Onge"
I dissent
College Nominee
I concur "Joe Herbert"
Union Nominee
IN THE MATTER OF AN ARBITRATION
BETWEEN FANSHAWE COLLEGE AND
CANADIAN UNION OF PUBLIC EMPLOYEES
IN THE MATTER OF UNION GRIEVANCE NO 88B718
DISSENT
Having had an opportunity to consider the reasoning and
conclusion of the majority board I find I cannot concur
with the ruling concerning the College's preliminary
objectives.
It is my view that the College and the union have agreed to
two exclusive mechanisms for resolving disputes between
them. The Grievance Procedure Article 11, like most grievance
procedures, allows for grievances by individual employees
and as in article 11.10 it allows for union grievances.
However, union grievances can only be brought forward under
very specific conditions.
1) "Shall not include any matter upon which an employee
would be personally entitled to grieve."
2) "Unreasonable standard that is patently in violation of
this agreement."
3) Adversely affects the rights of persons in the bargaining
unit.
The matter certainly is subject for a personal grievance by
an employee, and as the facts reveal, the matter was grieved
and a decision rendered and implemented according.to Article
4.02 (6)(F) of the Collective agreement.
The unreasonable standard has been recognized and remedied
according to the terms of the Collective agreement.
I would agree there is the potential for affecting the rights
of other persons, but is questionable whether the decision
adversely affects the rights of other persons in the
bargaining unit. By the union's own admission, they could
not solicit grievances from individual teachers.
It is my view that union fails in the first and third tests
required to launch a Union grievance.
The second exclusive mechanism for resolving disputes is
set out in 4.02 (1)(F)(ii):
Grievances arising with respect to Article 4, other
than Articles 4.01 and 4.02, shall be handled in
accordance wi th the grievance procedure set out in
Article II.
Upon closer scrutiny of articles 4.01 and 4.02, I agree
with my colleagues that it is not written in the usual labour
relation perspective. However, the parties have agreed to
these articles in free collective bargaining. The resultant
of these clauses may cause anomalies to standard Industrial
Relation practices, whether they were intended or not.
It is my view that the concept of a threshold standard is
foreign and not contained in article 4.01 or 4.02 of the
Collective Agreement. To characterize certain standards as
threshold standards, is also creating an anomaly to these
articles.
I have great difficulty with the majority's statement that
article 4.02 (1)(F)(ii) does not apply where the college is
refusing to apply a threshold standard that has been the
subject of a prior award under article 4.02 upholding the
interpretation of the standard advanced by the union.
Firstly, the standard was not advanced by the union, it was
grieved by a teacher and not in concert with the union as
set out in article 4.02 (5)(a):
If, following a review by the Group of an individual
workload assignment which has been forwarded to the
Group, the matter is not resolved, the teacher 'shall
be so advised in writing. The matter may then be
referred by the teacher* to a Workload Resolution
Arbitrator (WRA) provided under the agreement. Failing
notification by the Group within three (3) weeks of
the referral of the workload assignment to the Group,
the teacher* may refer the matter to the WRA.
Secondly, in my view threshold standards are not contemplated
in articles 4.01 or 4.02. Thirdly, the standard is being
applied as required by the Collective Agreement.
For all of the above reasons I would have agreed with the
College's preliminary objections and found the matter not
arbitrable by this board.
Rene St. Onge
* Emphasis added