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HomeMy WebLinkAboutUnion 16-04-26 IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the “College”) -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“OPSEU”) RE OPSEU Grievance #2015-0110-0013 (School of Business – SWF Time and Course Leadership Duties) SOLE ARBITRATOR: John Stout APPEARANCES: For the College: Robert J. Atkinson, Hicks Morley Jerry Tapley, Labour Relations Consultant Mary Pierce, Chair Lawrence Kinlin School of Business For the Union: Lesley Gilchrist, Grievance Officer Mark Feltham, Chief Steward, Local 110 Hearing Held in London, Ontario on April 4, 2016 AWARD Introduction 1. This matter concerns a Union grievance dated July 17, 2015 alleging that the College violated Articles 1, 11 and any other relevant article by engaging in arbitrary behaviour and not ensuring that faculty members in the school of business are consistently credited with course leadership duties on their standard workload form (SWF). 2. This award addresses a preliminary objection raised by the College that I do not have jurisdiction to entertain the Union grievance because it deals with individual professor’s workloads, which are more properly addressed under the Article 11 Workload Resolution Process. Furthermore, the College asserts that that the Grievance is also not a proper Union grievance under Article 32.09 of the Collective Agreement. 3. The Union disagrees with the College and asserts that the grievance is a proper Union grievance that deals with an important policy issue affecting a substantial number of faculty members. SUBMISSIONS 4. The parties did not call any oral evidence. The only evidence provided to me was a copy of a grievance, the College’s response and a course leader checklist. 5. Counsel made extensive opening statements, during which they also made submissions on the preliminary objection. 6. The grievance arises out of the Lawrence Kinlin School of Business. The School of Business offers twenty–seven post secondary degree, diploma and certificate programs. There are five core foundational courses that are required in all programs at the School of Business. The Union alleges that sixty-eight of the seventy-two professors at the School of Business are not receiving appropriate credit on their SWF for time performing course - 2 - leader duties. As a result, the Union alleges that numerous professors are not being properly compensated for work that they have performed. 7. The SWF is found at Appendix “I” of the Collective Agreement. The SWF records an individual teacher’s workload during the period in which they are teaching, see Article 11.01 B1. The SWF hours are added up in order to determine the compensation that a teacher shall receive from the College. The SWF has four workload factors: i. Teaching contact hours; ii. Attributed hours for preparation; iii. Attributed hours for evaluation and feedback; iv. Attributed hours for complimentary functions. 8. The work performed during periods when a teacher is not teaching is reserved for complimentary functions and professional development, which need not be recorded on the SWF. 9. In terms of complimentatry functions, Article 11.01 F1 provides an allowance of a minimum of six hours of the forty-four hour maximum weekly total workload of which two hours are for normal administrative tasks and four hours are for routine out of class assistance to individual students. 10. The Union advises that it would be their evidence that the course leader checklist duties consume between thirty minutes to one hour of a professor’s time each week. The Union further advises that it will be their evidence that the time performing course leader duties does not fall within the allowance of minimum hours for complimentary functions found in the Collective Agreement. - 3 - 11. The Union indicates that it will be their evidence that professors are advised by the College that the course leader duties are required to be performed and will not be recorded on the SWF, save and except for four professors within the School of Business. The Union indicates that it will be their evidence that other schools of a similar or smaller size recognize course leader duties and record appropriate time on the SWF. 12. The Union characterizes the College’s conduct as individual bargaining with professors and forcing them to work for free. The Union asserts that the College’s conduct goes to the heart of the Union’s right to represent professors. The Union seeks an order directing the College to stop bargaining directly with professors and stop requiring professors to work for free. In the grievance, the Union specifically seeks that all members working as course leaders be properly credited with SWF time for the duties or a declaration that professors are not obligated to perform work on a voluntary basis. 13. The College responded to the grievance on July 27, 2015. In the College’s response, the following was indicated: If this grievance is referred to arbitration, the College will object to an arbitrator’s jurisdiction to hear this matter as it is not a proper union grievance in accordance with Article 32.09. Notwithstanding the above, the duties of course leader, where no SWF time is allotted, is on a voluntary basis by each individual faculty. 14. At the hearing, counsel for the College clarified that the College was not taking the position that the course leader duties are voluntary. Rather, the College advised that the professors who take on course leader duties, do so on a voluntary basis. Furthermore, the College advised that those professors who voluntarily take on the course leader duties, are expected to perform such duties within the two hours allocated for administrative tasks or during non-teaching time that is specifically not included in the SWF. - 4 - 15. The College advises that those professors, who act as course leaders for courses that have many sections and multiple instructors (such as the five core foundational courses), are given credit on their SWF for course leader duty work that is expected to be performed during the teaching period. 16. The College submits that this grievance really deals with matters that are more appropriately dealt with under the Article 11 Workload Dispute Resolution Process. The College points out that no individual professor has filed a workload complaint under Article 11. 17. The College maintains that this grievance is not a proper Union grievance and should not have been processed under Article 32.09, which provides as follows: 32.09 The Union or Union local shall have 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 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 unreasonable standard that is patently in violation of this agreement and that adversely affects the rights of employees. 18. The College argues that this grievance deals with individual professor’s workloads and does not raise a patent violation of the Collective Agreement that would adversely affect the rights of employees. 19. The College referred to the following awards to support their argument: Fanshawe College and Ontario Public Service Employees Union (Gurofsky), Unreported Award of Louisa Davie dated September 28, 2015; Loyalist College of Applied Arts and Technology and Ontario Public Service Employees Union, Unreported Award of a Board chaired by Kathleen O’Neil dated May 29, 2 0 0 1 ; St. Lawrence CAAT-Academic and Ontario Public Service Employees Union, Unreported Award of Paula Knopf dated May 12, 2004; St. Lawrence College and Ontario Public Service Employees Union, Local 417, Unreported Award of David - 5 - Starkman dated November 21, 2011; Durham College and Ontario Public Service Employees Union, Local 354, (2012) CanLII 66574 (Knopf); Fanshawe College and Ontario Public Service Employees Union, Local 110, Unreported Award of a Board chaired by Norm Jesin dated August 22, 2013. 20. The Union points out that the College is in effect requesting that I make factual findings without hearing any evidence. The Union asserts that it is inappropriate to dismiss the grievance based on assertions made by the College as opposed to hearing evidence. 21. The Union indicates that their evidence will demonstrate that numerous professors are not being given credit for course leader duties on their SWF despite those duties being required to be performed during teaching periods and taking longer than the time already allocated for administrative duties. 22. The Union asserts that the remedy being sought is not for individual professors, but rather a direction that professors not be compelled by the College to work for free. 23. The Union acknowledges that Article 11 provides the process for individual professors to file complaints about their workload. The Union argues that the heart of the issue raised in the grievance before me relates to individual bargaining with professors and an unreasonable standard of requiring professors to work for free, which the Union characterizes as a patent violation of the Collective Agreement. 24. The Union referred to the following awards to support their argument: Humber college of Applied Science and Technology v. OPSEU (1999), 80 L.A.C. (4th) 108 (Shiff); Cambrian College and Ontario Public Service Employees Union, Unreported Award of a Board chaired by A.M. Kruger dated July 7, 1997; St. Lawrence College and Ontario Public Service Employees Union, Local 417, Unreported Award of a Board chaired by Debra Leighton dated April 13, 2012; Fanshawe College and Ontario Public Service Employees - 6 - Union (2002), 72 C.L.A.S. 74 (Knopf); Canadore College and Ontario Public Service Employees Union, Unreported Award of a Board chaired by Howard Brown dated February 20, 1990; Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union, Unreported Award of a Board chaired by Howard Brown dated June 28, 1996; Humber College and Ontario Public Service Employees Union, Local 562, Unreported Award of Board chaired by Kathleen O’Neil dated October 15, 2015; Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union, Unreported Award of a Board chaired by Kevin Burkett dated March 29, 1989, upheld by the Ontario Court of Appeal [1994] O.J. No. 3697; Seneca College and Ontario Public Service Employees Union, Unreported Award of a Board chaired by Jane Devlin dated June 5, 1998. DECISION 25. I begin by noting that the parties have provided me with very little evidence, but have made many assertions. In my view, for the purposes of determining a preliminary objection to dismiss a grievance, I must accept that the Union can prove all o f t h e allegations that they made during their opening statement. I say this because it would be inappropriate for me to accept the assertions made by the College and dismiss the grievance without any evidence. 26. In my opinion, an arbitrator should only dismiss a grievance based on a preliminary objection in situations where the arbitrator is satisfied that there is no factual or legal basis for the grievance or the remedial relief being sought, see Fanshawe College and Ontario Public Service Employees Union (Gurofsky), (Davie), supra, at paragraph 12-13. 27. Assuming, without deciding, that the Union can prove their allegations, I agree with the Union that the preliminary objection must be dismissed. 28. The matter before me is very similar to the issue in the Fanshawe and Ontario Public Service Employees Union, supra, a w a r d d e c i d e d b y a b o a r d o f a r b i t r a t i o n c h a i r e d b y - 7 - Arbitrator Knopf. The Knopf Board had a Union grievance before it alleging that the College violated the collective agreement by failing to provide credit on SWF to several bargaining unit members. The College raised a preliminary objection that was similar to the objection raised in this matter. The Knopf Board dismissed the College’s preliminary objection. The comments of the Knopf Board at paragraph 29 are instructive: …It is not necessarily the quality or the strength of a potential defence that can usurp the Union’s right to proceed. It is the fundamental nature of the allegation itself that will determine whether it meets the tests contained in Article 32.10. The quality of the College’s defence may well inspire sober second thoughts within the Union about the utility of proceeding. But since most grievances are answered with strong or logical defences, the mere existence of a rational defence will not derail a properly constituted Union grievance at the preliminary stage if the allegations meet the tests contained in the Article. Therefore, it is not sufficient to oust jurisdiction of a board of arbitration by showing that there may be a strong likelihood that the grievance will fail… 29. I agree with the Knopf Board’s reasoning and I am of the view that it is equally applicable to the matter before me. 30. The Union’s grievance in this matter alleges a failure to provide compensation for work that is required by the College. In my view, this allegation would, if proven, give rise to a patent violation of the Collective Agreement, see Fanshawe (Knopf), supra, at paragraph 28. 31. I am also of the view that the allegation of directly dealing with professors, if proven, would also give rise to a patent violation of the Collective Agreement, See Fanshawe (Knopf), supra, at paragraph 30. 32. I also find support for my conclusion in the award of a board of arbitration chaired by Arbitrator O’Neil in Humber College, supra. The O ’ N e i l Board had before them a grievance alleging that Humber College contracted individually with full-time faculty who teach continuing education courses, and that the work they performed should be subject to the collective agreement, including being recorded as part of the SWF. Humber raised a - 8 - preliminary objection that was similar to the objection raised in this matter. The O’Neil Board dismissed Humber’s preliminary objection. 33. The O’Neil Board carefully reviewed all of the previous jurisprudence relating to the interplay between Article 32 and Article 11. The comments of the O’Neil Board at page 4 are germane to this matter: As the case law in the College sector repeatedly observes, the sophisticated parties to this collective agreement have created a very detailed set of grievance procedures, with two main routes. In general, issues related to individual workload are intended to be dealt with in the particularly expeditious, non-precedential WRA process, while other issues are dealt with under Article 32, which contains provisions for individual, group, employer and union grievances. However, workload issues touch many issues that are broader than the individual issues that are intended to be resolved on a quick, non-precedential basis which apply only to the teacher who grieves. The jurisprudence on the subject recognizes that there is a permissible place for union grievances with workload implications. The question to be determined is whether the one before us falls into that category. 34. In this regard, I agree with the O’Neil Board that both a union grievance and an individual grievance may be based on the same facts but give rise to two separate and identifiable interests (individual and collective) under the collective agreement, see Humber (O’Neil), supra, at page 16. 35. I also agree with the O’Neil Board that the Union is permitted to grieve issues directly between it and the College, if the three conditions set out in Article 32.09 are met, even if the grievance has workload implications, see Humber (O’Neil, supra, at page 23. 36. In my view, based on the allegations raised by the Union in the grievance, the Union has met the three conditions permitting them to grieve. The Union claims that the College is bypassing the contractual standards by bargaining individually with professors, which has the effect of undermining the Union’s representational rights and the collective agreement wage rates. The claim in the grievance meets the three conditions of a prima facie case of - 9 - the application of an unreasonable standard that is patent or clear on its face and has an adverse effect on the rights of employees. 37. The cases relied upon by the College in this matter are all, in my view, clearly distinguishable. • The Fanshawe ( D a v i e ), supra, a w a r d c o n c e r n e d i n d i v i d u a l g r i e v a n c e s a n d arbitrator Davies made determinations based upon agreed facts. • In the Loyalist (O’Neil), supra, award, the union sought individual remedies and did not establish an unreasonable standard that is a patent violation of the collective agreement. • The St. Lawrence (Knopf), supra, award was based on agreed facts, which revealed no attempt to undermine the union’s representational rights. • In both the St. Lawrence (Starkman), supra, a n d D u r h a m ( K n o p f ), supra awards, the arbitrators found that no patent violation of the Collective Agreement was made out. • Finally, the Fanshawe (Jesin), supra, award deals with different facts and did not include an allegation of directly bargaining with professors. 38. Accordingly, after carefully considering the submissions of the parties, I find that the preliminary objection must be dismissed. 39. I wish to make it clear that I have not made any determination with respect to whether the College violated the Collective Agreement. I have only found that based on what little evidence I have before me, the Union meets the exceptions set out in Article 32.09 for proceeding with a Union grievance. 40. In order for this matter to proceed in an expeditious manner, I expect the parties to exchange particulars and address all production issues prior to the next hearing date. If the parties require assistance with any procedural or production issues, then they may contact my office to arrange a conference call. - 10 - 41. I remain seized. Dated at Toronto this 26th day of April, 2016. __ _______ John Stout - Arbitrator