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HomeMy WebLinkAboutMcKay 89-02-03IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE The Employer AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION The Union AND IN THE MATTER OF THE GRIEVANCE OF C. MCKAY RELATING TO THE PROCEDURES FOR THE RESOLUTION OF WORKLOAD DISPUTES (OPSEU FILE NO. 88B206). BOARD OF ARBITRATION: DONALD D. CARTER, CHAIR J. MCMANUS, UNION NOMINEE R. ST. ONGE, EMPLOYER NOMINEE APPEARANCES: For ~he Employer: J. Baker, Counsel T. Knowles, Academic Vice-President G. Pevere, Director of Personnel For The Union: E.J.S. bennon, Counsel J. Birney, Local Steward C. McKay, Grievor A hearing in this matter was held in Toronto on December 20, 1988. AWARD This grievance raises the issue of the manner in which workload disputes are to be referred to the Workload Resolution Arbitrator (WRA) provided under article 4.02 of the collective agreement. More precisely, the question is whether the Workload Monitoring Group (WMG) was intended to be the only conduit through which such matters reach the WRA or whether other routes can be taken where a teacher wishes to bring an unresolved complaint before a WRA. The essential facts underlying this grievance are not in dispute. The grievor brought a workload complaint relating to his request for approval of professional development activities to the College's Workload Monitoring Group. He met with the WHG on February 2, 1988. At the end of the meeting the WMG was deadlocked and the complaint remained unresolved. At this point the grievor indicated that he would take the matter to the WRA and even further if necessary. The WMG appar- ently understood these remarks as a request to proceed to the WRA and, on that same day, it made a written reference to Dr. Peter Atherton, a WRA selected by both the union and employer. The urievor, however, was not immediately informed of this reference, instead, he received the standard memorandum, dated February 3, 1988, advising him that ~he W~[G had been unable to resolve this issue and that, if he wished to have the matter, referred to a WRA, he must advise the WMG of this intention in writing within a week of receipt of the memorandum. The grievor did not follow this route but, rather, sent a memorandum dated February 8, 1988, to the local union president and the college president indicating that he wished to refer his complaint to the WRA through their offices. A further memorandum, dated February 9, 1988, was sent by the grievor to the WMG advising them of his intention to put the matter before a WRA without further reference to the WMG. Subsequently, the president of the union local advised Dr. ~Atherton of the~grievor's wish to proceed to arbitration in a memorandum dated February 23, 1988. At about the same time as this reference was made the grievor became aware that the ~MG had already referred his dispute to the WRA. The grievor then filed a grievance requesting that this reference be withdrawn and that the WMG indicate in writing that the reference had been improper. In response to this grievance the college's president advised the grievor that she had "requested the Co-chairs o£ the WHG to retract the letter since it was sent out prematurely in anticipation oS your wishes." A letter, dated May 5, 1980, was then sent by the Co-chairs to the ~RA a~vising that the reference was formally retracted~ This action, however, did not resolve the grievance before us. As the result cf the formal retraction of the referee, the WRA refused to deal with the grievor's workload complaint concerning professional development activities. This complaint still app~ears to be very much alive and the grievor seeks a declaration from this board that it may be heard by a WRA without being channelled through the Evidence was given that the ~MG had been in existence for just over two years. During ~hat period the ~MG had dealt with roughly 30 to 50 complaints per year. Serving on the WHG ~ere four members appointed by the colleg8 and four members appointed by the union. If the WMG could not reach agreement on the resolution of a complaint it would advise the teacher of the. right to proceed further to the WRA by indicating so in writing to the WMG. If the WMG were notified in this manner i~ would then make the arrangements for the WRA. This procedure had been followed in all eight referrals to the WRA made before the grievor's case arose. The collective agreement provisions relevant to the resolution of this griev- ance are set out below: 4.02 (1) (f)(i) In the event of any difference arising from the interpreta- tion, application, administration or alleged contravention of Article 4.01 2 '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 (1'4) 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 (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 (i) (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 1i. 4.02 (2) (a) There shall be a College Workload Monitoring Group at each College. 4.02 (2) (b) Each Group will be composed of eight (8) members, with four (4) to be appointed by the College and four (4) appointed by Union Local unless the College and the Union Local otherwise agree. The term of office of each member of the Group shall be two (2) years, commencing on April i in each year with four (4) members of the Group, two (2) College appointees and two (2) Union appointees, retiring on March 31 of each year. However, the term of office of two (2) College appointees and two (20 Union appointees appointed in 1986 shall be until March 31, 1987. A quorum shall be comprised of four (4), six (6) or eight (8) members with equal representation from the College and Union Local. Alternative arrangements may be made at the local level upon agreement of ~he Union Local and the College. 4.02 (3) (a) The functions of the Group shall include: (i reviewing workload assignments in general at the College and resolv- ing 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 3 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 vari- ables 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) 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) (a) The Group shall meet wkere feasible within one (1) week of receipt of a workload complaint or at the request of any member of the Group; 4.02 (4) (b) The Group shall have access to all comple(ed SWFs and such other relevant workload data as it requires to review workload complaints at the College; 4.02 (4) (c) The Group or any member of it may require the presence of the supervisor and/or ,the teacher before it to assist it in carrying out its responsibilities; 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 as soon as possible after t~e 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 workloa:d 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 w,it~hin 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) One or more Workload Resolution Arbitrators shall be jointly selected by the President of the College and the President of the Union Local. The appointment of a WRA shall be until June 30, 1987 and thereafter from July 1 until June 30 of the following year unless both parties otherwise agree in writing. A WRA shall act on a rotation basis or as otherwise agreed; 4.02 (6) (b) A WRA shall indicate to the President of the College and the President of the Union Local, in writing, willingness to act within the time frames specified in this Article; _ 4.02 (6) (c) In the event that the President of the College and the President of the Union Local are unable to agree upon the appointment of a WRA, either ~= College or the union Local may request the College Relation Commission to appoint a WRA and the WRA shall, upon appointment by the College Relations Commission, have the same powers as if the appointment had been made by the College and the Union Local as provided herein; 4.02 (6) (d) The College and the Union will provide to a WRA the SWF and any other documents which were considered by the Group in its deliberations and such other information as the WRa considers relevant; 4.02 (6) (e) A WRA shall determine appropriate procedure. The WRA shall commence proceedings within two (2) weeks of the referral of the matter to the WRA. It is understood that the procedure shall be informal, that the WRA shall discuss the matter with the teacher, the teacher's supervisor, and whomever else the WRA considers appropriate; 4.02 (6) (f) A WRA shall, following the informal discussions referred to above, issue a written award to the College and the Uni'on 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 th~ end of a twelve-month period from the date of the beginning of the uorkload assignment; 4.02 (6) (g) On request of either or both parties within five (50 working days of such a~ard, the WRA shall provide a brief explanation of the reasons for the decision; 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. 4.0Z (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) (j) The Colleges and the Union shall each pay one-half of the remuneration and expenses of a WRA; 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"; 4.02 (6) (1) References to "teacher" in this Article include "instructor" but do not include partial-load teachers. The union submitted that the language of the collective agreement did not dictate that the WMG bs the sole condu~t for the referral of workload complaints to the URA. According to the union, the collective agreement clearly provided a ~eacher with an unqualified right to proceed to a WRA once the WMG has failed to resolve the matter. Even though the eight earlier dispute had been refereed to a WRA by thee WMG, this practice could not stop the grievor from asserting his right To us~ an alternative route to the WRA. The employer, on the other hand, argued that the members of the WMG had reached a de facto agreement on how referrals were to be made to the WRA. Since the WPIG was comprised of equal representation from the union and management, this agreement had the effect of establishing the WMG as the exclusive route for the referral of workload complaints to the WRA. According to the employer, 'this agreeed upon procedure did not detract from a teacher's right to refer a complaint to a WRA, but merely provided a sensible method of reaching the final step in the process established for resolving workload disputes. In the alternative, the employer.~. submitted that, even if no de facto agreement existed, the union should be stopped from deviating from the established practice. As we read the provisions of the collective agreement, it does appear clear that the teacher has a right to have unresolved work complaints referred to a WRA. At the same time, however, it also appears clear that both the union and employer are also intended to have a role in this process. It is these two parties, and not the teacher, which have a say in the appointment of the WRA. It is also these two parties that have a joint obligation to provide the required information to the WRA. As well, the WRA's written award is to be sent to the employer and union which in turn have an obligation to pay an equal share of the remuneration and expenses of the WRA. Our conclusion that the union and employer continue to play a role in this final staoe of the workload dispute procedure, however, does not lead us to the ~urther conclusion that the WMG is to be the exclusive conduit to the WRA. All that the collective agreement appears to contemplate is that the union and employer be notified of a teacher's intention to refer an unresolved matter to the WRA within one week of receipt of notification from the WMG that it has been unable to resolve the complaint. While such notification can be executed through the WMG, as it was in the eight previous cases, there is nothing in the language of the collective agreement to suggest that this procedure should be the only method of notification. Nor does the parties' use of the W~IG as the conduit to the WRA in the eight earlier cases constitute a sufficiently well defined practice to justify either reading such a limitation into the collective agreement, or to resorting to the doctrine of estoppel in this particular case. The grievor in this case chose not.to notify the WMG but, instead, wrote directly to the union and employer in a timely manner. In our view, the notifica- tion of the two parties in this manner constituted a referral to the WRA as con- templated by the collective agreement. Therefore, we declare that the grievor's complaint may be heard by a WRA as required by the collective agreement. We 7 remain seized of this matter to deal with any difficulties that might arise from the implementation of this award. ~.. Dated at Kingston this '-~ day of February, 1989. D.D. Ca~.r I concur/dissent J. McManus, Union Nominee I concur/~isscnt · ' C'')'~ ~/e-- R. St. Onge, Employe~Nominee