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HomeMy WebLinkAboutTheil 92-08-04BETWEEN: Sault College of Applied Arts and Technology, Employer, - and - Ontario Public Service Employees Union, Union. BEFORE: Michael Bendel, Chair David Cameletti, Employer Nominee Wally Majesky, Union Nominee APPEARANCES: For the Union: John J. Monger, Counsel John Theil, Grievor For the Employer: D.W. Brady, Counsel Ken Robb, Manager, Human Resources and Staff Development Heard in Sault Ste. Marie, Ontario, on May 4, 1992. ARBITRAL AWARD I In his grievance, Mr. John Theil, a teacher in the Department of Sciences and Natural Resources, alleges that he was wrongly denied access to a Workload Resolution Arbitrator in relation to a dispute about his workload for the winter of 1991. The following facts were agreed to by the parties. In November 1990, the grievor, dissatisfied with the Standard Workload Form ("SWF") he received in June 1990 for the winter of 1991 (i.e. for the period from January 9, 1991, to April 26, 1991), requested that his workload be reviewed by the Workload Monitoring Group ("WMG"), in accordance with the collective agreement (Article 4.02 (1) (f) (i)). On a number of occasions - specifically on February 12, April 3, May 7, May 22 and June 18, 1991 - the grievor requested in writing that the outstanding questions be referred to a Workload Resolution Arbitrator ("WRA") (Article 4.02 (5) (a)). On May 22, the WMG issued a decision purporting to deal with these outstanding questions, and the decision was communicated to the grievor in accordance with the collective agreement (Article 4.02 (4) (d)). The grievor thereupon presented a grievance, claiming that the WMG was precluded from dealing with these questions since they had already been referred to the WRA. The employer replied that the May 22 decision of the WMG was binding under the collec- tive agreement (Article 4.02 (4) e)). A WRA was appointed to deal - 2 - with various workload disputes between the grievor and the employer. The WRA convened a hearing for August 27, 1991, at which time the parties could not agree whether the outstanding questions concerning the SWF for the winter of 1991 were properly before the WRA. The WRA ruled that he could not deal with the question whether the May 22 WMG decision was binding, and he declared that the arbitration before him was "abandoned". The grievance thus raises a question on the interpreta- tion of Article 4 of the collective agreement. Reduced to its simplest terms, the issue is whether the WMG retained the power to render a binding decision on the grievor's complaint after the grievor had validly referred it to the WRA. II The relevant provisions of the collective agreement are these: Article 4 WORKLOAD 4.02 (1) (a) (i) Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload witk 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 - 3 - 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) (a) (ii) The College may, where a change in circumstances requires it, amend assignments provided to a teacher after the original assignment, subject to the teacher's right to refer any matter to the College Workload Monitoring Group (WMG) referred to in Article 4.02 (2) (a) and, if necessary, the Workload Resolution Arbitrator (WRA) referred to in Article 4.02 (5) (a) and appointed under Article 4.02 (6) (a). 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. 4.02 (1) (f) (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 agreed to have other persons in atten- dance. The immediate supervisor's response to the - 4 - 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 (2) (a) There shall be a College Workload Monitoring Group at each Collegm. 4.02 (2) (b) Each Group will be composed of eight (8) members, with four (4) appointed by the 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 1 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. A quorum shall be composed 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 the 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 resolving apparent inequi- table 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 the Union Local committees appointed under - 5 - Article 14 as to amendments or additions to the provisions governing workload assignments at the College for local negotiation in accor- dance 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 mssistance; (iii) size and amenity of classroom, laborato- ry 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) (a) The Group shall meet where 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 completed SWF's 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. - 6 - 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 $o advised in writing. The matter may then be referred by the teacher to a Workload Resolution Arbitra- tor (WRA) provided under the agreement. Failing notifica- tion 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 (5) (b) If the teacher does not refer an assignment to the WRA within one (1) week of the receipt by the teacher of notification by the Group that it has been unable to settle the matter, the matter will be consid- ered to have been settled. 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 from July 1 until June 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) (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 under- stood 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 appropri- ate. 4.02 (6) (f) A WRA shall, following the informal discus- sions 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 - 7 - end of a twelve-month period from the date of the beginning of the workload assignment. 4.02 (6) (g) On request of either or both parties within five (5) working days of such award, 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. 4.02 (7) It is recognized that speedy resolution of workload disputes is advantageous to all concerned... Article 11 GRIEVANCE PROCEDURES 11.O5 General (h) It is understood that nothing contained in this Article shall prevent an employee from presenting personally a grievance up to and including a Hearing by the Arbitration Board without reference to any other person. However, a Union Steward may be present as an observer, commencing at Step 1, if the steward so requests. III According to Mr. Monger, counsel for the union, the Article contemplates the speedy resolution of workload disputes. - 8 - The referral of the complaint by the grievor to the WRA was valid under the collective agreement. The WMG failed to meet the three- week target or deadline for issuing a decision (Article 4.02 (5) (a)). The WMG lost the authority to issue a binding decision on the grievor's disagreements with his SWF for winter 1991 once the grievor requested that the dispute be referred to the WRA; as a result, the WRA should now resolve the dispute. · Mr. Brady, counsel for the employer, argued that the referral of the dispute to the WRA did not have the effect of depriving the WMG of the power to deal with the matters of which it was properly seised; once the WMG issued its binding decision on May 22, there was no longer any dispute between the parties that could be dealt with by the WRA. If the union's argument were correct, an individual employee's decision to refer a complaint to the WRA would prevent the parties' nominees to the WMG from resolving the matter. Such a result would run counter to the generally accepted principles of labour dispute resolution as found in legislation and collective agreements in this jurisdiction. According to those principles, it is always preferable for the parties to arrive at their own settlement of a dispute rather than have a third party issue a decision, and the parties always retain the power to settle their disputes. The model that would emerge if the union's argument were accepted would be one not found anywhere else. For that reason, it would take clear language to persuade the - 9 - board that the parties really intended that result. The mechanism for resolving workload disputes provided for in the collective agreement is a dynamic one, which encourages discussion and accommodation at various stages. It would be inconsistent with the Article as a whole to conclude that the referral of the dispute to the WRA acted as a guillotine to the work of the WMG. The union is, in effect, asking the board of arbitration to imply a term into the collective agreement, whereby a referral of a dispute to the WRA "deprived the WMG of jurisdiction. Given the detailed nature of the workload resolution provisions, it would not be legitimate to find such an implied term. In reply, counsel for the union noted that this collec- tive agreement, partiCularly in Article 11. 05 (h), gave individual employees substantial power to pursue their own grievances. It was therefore not inconsistent with the agreement as a whole to inter' pret Article 4 in the manner advocated by the union. IV The agreement envisages that, after a dispute has been referred to the WMG, one of several things could happen. Firstly, the WMG, which is composed of an equal number of employer appoin- tees and union appointees, could issue a majority decision, and this would be "binding" (Article 4.02 (4) (e)). Secondly, the WMG - 10- could report that it had been unable to resolve the matter, in which case, the teacher could refer it to the WRA (Article 4.02 (5) (a)). Thirdly, if the WMG failed to make such a report within three weeks of the matter being put before it, the teacher could refer the matter to the WRA (Article 4.02 (5) (a)); this is what the grie¥or did in the present case. Fourthly, if the teacher failed to refer the dispute to the WRA within one week of being advised of the WMG's failure to resolve it, the matter would be considered '%o have been settled (Article 4.02 (5) (b)). There is no question about the grievor's right to refer the dispute to the WRA when he did so; the referral was clearly authorized. The only question raised is whether that referral had the effect of bringing to an end the WMG's consideration of the matter. We agree with Mr. Brady's observation that the union is, in effect, asking the board of arbitration to declare that, in addition to the detailed provisions of Article 4, the parties impliedly agreed to a further provision, according to which the WMG lost its authority to deal with a dispute once it was referred to the WRA. Apart from this implied term, nothing in the collective agreement, in our view, would support the conclusion that the referral of the dispute to the WRA ousted the WMG's ~jurisdiction. - 11 - As for the three-week period mentioned in Article 4.02 (5) (a), it is not disputed that this is merely the beginning of the time when the teacher may refer the dispute to the WRA. The union did not ask us to find that, upon the expiry of this three- week period, the WMG's authority comes to an end; its position is that the valid referral of a dispute to the WRA has this effect. We have concluded that we cannot find the implied limita- '~ion on the WMG's authority'which the union advocates. There was little argument, and no case-law cited, on the question of the power of a board of arbitration to imply terms into a collective agreement. However, arbitrators have consistently held that they must "refrain from adding terms to collective agreements and stick to their business of interpreting and applying them" (R__e Hudson's Bay Co., Wholesale Department, and Retail, Wholesale' Union, Local 580 (1985), 21L.A.C. (3d) 407 (Bird), at page 418). The case-law recognizes, among other conditions that must be met before an implied term can be found, that the implied term must be necessary for the proper functioning of the contract: see, for example, Re Sault Ste. Marie Board of Education and Statutory Members of Sault Ste. Marie Division, Ontario Secondary School Teachers Federation (1979), 24 L.A.C. (2d) 6 (Palmer), at page 11. In the present case, we are not persuaded that the proper function- ing of Article 4 requires the result urged upon us by the union. - 12 - The union says that the recognition, in Article 4.02 (7), of the importance of the speedy resolution of workload disputes should lead us to endorse its position. In response to that, we would observe that the employer's interpretation would not lead to any delays in resolving such disputes, since, if the WRA renders a decision before the WMG, the WRA's decision is the effective one (Article 4.02 (6) (h)). In fact, if the union were right and the referral of the dispute to the WRA brought the WMG's work to a halt, it is possible that, in certain circumstances, the final disposition of a dispute might take even longer. It is not diffi- cult to envisage a situation where the WMG might be on the verge of a decision, even though it had missed its three-week "target", and thus be able to hand down a ruling well before the WRA. The WMG's power to do so would effectively be removed if the union's interpretation were correct. In addition, given the very detailed and sophisticated scheme established in Article 4, it is scarcely conceivable that such an implied provision could be found to exist. We are being asked to find that there was a major omission from the express terms of the Article. In view of the detailed provisions of Article 4 and the obvious care with which this scheme has been elaborated, we have difficulty believing that, had the parties intended the result advocated by the union, they would have refrained from making that an express term of Article 4. - 13- It is therefore our conclusion that, despite the referral of the grievor's dispute to the WRA, the WMG remained seised of it, and that the decision issued by the WMG on May 22, being "binding on the College, the Union Local and the teacher involved" (Article 4.02 (4) (e)), effectively resolved the question of the grievor's objections to the SWF for the winter of 1991. As a result, there was no dispute for the WRA to deal with. For these reasons, the grievance is hereby dismissed. DATED at Ottawa, Ontario, this 4th day of August 1992. Michael Bendel, Chair David Cameletti, Employer Nominee l-~eme~m/I dissent Wally Majesky, Union Nominee