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HomeMy WebLinkAboutUnion 16-08-08IN A MATTER PURSUANT TO the Colleges Collective Bargaining Act, 2008, S.O. 2008 BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (“Employer”) - and – ONTARIO PUBLIC SERVICE EMPLOYEES UNION (“Union”) (Grievance re Partial-Load Contracts - Preliminary Issue) ARBITRATOR: Jasbir Parmar On Behalf of the Employer: Lisa M. Kwasek, Counsel, Hicks Morley Hamilton Stewart Storie LLP Jerry Tapley, Labour Relations Consultant Teresa Richman, Program Manager On Behalf of the Union: Lesley Gilchrist, Grievance Officer, OPSEU Darryl Bedford, President, Local 110 This matter was heard on June 28, 2016, in London, ON. 1 I. INTRODUCTION 1. The Union has filed a union grievance alleging the College has violated the collective agreement by reducing partial-load faculty contracts to 14 weeks, rather than 15 weeks. The College objects to the Union proceeding with this grievance, on the basis of Article 32.09. This decision addresses that preliminary objection. II. AGREED STATEMENT OF FACTS 1. Fanshawe College of Applied Arts and Technology (“Fanshawe”) is a community college bound by the collective agreement between the College Employer Council for the Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union (“OPSEU”), (the “Collective Agreement”) 2. OPSEU represents the academic employees employed by Fanshawe. 3. Article 26 of the Collective Agreement governs partial-load employees. Partial- load employees are defined as teachers who teaches more than six and up and including 12 hours per week on a regular basis. 4. Article 26.02A states: A partial-load employee shall not receive salary or vacations but shall be paid for the performance of each teaching contact hour at an hourly rate calculated in accordance with 26.04. 5. Most of the courses offered at Fanshawe are scheduled for a 15 week period. 14 weeks are instructional time and the 15th week is the examination week. 6. Some Schools within Fanshawe offer shorter or longer lengths of courses, depending on the particular program and course. 7. Although there may have been a period of time in which some Schools offered partial-load employees contracts which were 15 weeks in duration, Fanshawe now offers many partial-load employees 14 week contracts, commencing on the first day of instruction and ending on the last class of the course. 2 8. Some partial-load employees are offered part-time contracts to invigilate an examination in the 15th week of the course. 9. Regardless of the employee who invigilates an examination, the instructor of that examination is still expected to mark the examination or assess the final work of the students and submit grades accordingly. 10. On April 22, 2015, OPSEU initiated a Union Grievance pursuant to Article 32.09, grieving Fanshawe’s practice of offering partial-load employees 14 week contracts on the basis that partial load employees would be required to conduct work outside of the parameters of the 14 week contract. 11. In discussions on May 20, 2015, Fanshawe advised OPSEU that it did not accept that this grievance was properly a Union Grievance as it related to a matter on which an individual would be entitled to grieve. 12. On April 26, 2016, Ms. Diana Poulsen grieved that she had been offered a 14 week contract and was expected to complete mandatory job duties outside of the contract period. 13. Ms. Poulsen had been offered a part-time contract to invigilate two examinations. Ms. Poulsen also held a partial-load contract for another course, HIST 7012. Despite the fact that Ms. Poulsen had not been assigned to invigilate that examination, she refused to provide examination materials to the employee assigned to invigilate that examination and invigilated the examination herself. 14. In response to the grievance brought by Ms. Poulsen, Fanshawe agreed to pay Ms. Poulsen the part-time rate for the invigilation of the third examination (HIST 7012). Fanshawe further noted that further work completed by Ms. Poulsen which was not assigned by the College would not be paid. 15. In response, Ms. Poulsen withdrew her grievance. 3 III. RELEVANT COLLECTIVE AGREEMENT PROVISION 2. Article 32.09 of the collective agreement states: The Union or Union Local 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 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 the employees. IV. SUMMARY OF PARTIES’ POSITIONS 3. The Employer submits this is not a proper Union grievance, because it does not fit within the parameters of Article 32.09. The Employer submits that the Union fails to meet two of the three criteria established by that provision. 4. Specifically, the Employer notes that an employee has filed a grievance in the very same circumstances, and notes that even the language in the employee’s grievance is strikingly similar. 5. Also, the Employer submits the Union’s grievance does not meet the requirement of a patent violation of the collective agreement, which it notes is a high standard, going beyond just a simple violation. The Employer notes that there is no specific language in the collective agreement which addresses the marking of examinations or any remuneration for partial-load employees other than the payment calculation based on teaching contact hours. The Employer notes these employees have no teaching contact hours in the 15th week. It is submitted that therefore it is not patently obvious that pay is required under the collective 4 agreement for the 15th week. The Employer submits that while the Union may have an arguable case about whether the requirement to mark exams after the end date of the partial load employee’s contract is in violation of the collective agreement, an arguable case is not enough. 6. The Employer cited the following authorities: Cambrian College – and – OPSEU (O1B369), 2002 CarswellOnt 9892 (Brown); Fanshawe College – and – OPSEU (Gee) (unreported, September 21,1999)(Finley); Fanshawe College – and – OPSEU (unreported, September 16, 1997) (Kruger); St. Lawrence College – and – OPSEU, 2011 CarswellOnt 12554 (Starkman); and St. Lawrence College – and – OPSEU, 2012 CarswellOnt 17162 (Leighton). 7. The Union, on the other hand, submits that Article 32.09 does not apply because the basis of the Union’s grievance is not a matter upon which an individual employee would be entitled to grieve. The Union submits that the basis of its grievance is the Union’s loss of dues and the Union’s right of representation. The latter issue, the Union submits, arises from the Union’s allegation that the Employer is contracting individually with employees in a manner that is inconsistent with the collective agreement. The Union notes it is not seeking any individual remedies. 8. While Ms. Poulsen has filed a grievance arising out of similar facts, the Union submits that the same factual situation can be the bases of both individual interests and union interests. The Union submits that it should not be prevented from pursing the Union’s interests just because an individual may have individual interests at the same time. 9. In the alternative, in the event the Union is unsuccessful with respect to its arguments that Article 32.09 does not apply, the Union submits it meets the criteria set out in Article 32.09 for this to be a proper Union grievance. 5 10. The Union submits it is of significance that at the time the Union filed its grievance, there was no individual grievance filed. Ms. Poulsen did not file a grievance until over a year later. 11. With respect to the Employer’s position that the Union has only an arguable case, the Union submits that at this preliminary stage, there is no requirement for the Union to prove its case. Rather, it submits, the issue is whether the Union’s allegations, if accepted would constitute a patent violation of the collective agreement. 12. The Union submits requiring individuals to perform work for which they are not being paid is a patent, and in fact flagrant, violation of the collective agreement, particularly given the work being required is at a time after the employment contract has expired. 13. The Union submits there is no issue that this is in fact a standard, as the Employer has acknowledged contracting in this manner is its practice. The Union submits that where there is a patent violation, it cannot be said such a standard is reasonable. In other words, the Union submits that an unreasonable standard goes hand in hand with a patent violation. 14. Lastly, noting the Employer hasn’t disputed the adverse affect on the rights of employees, the Union submits that the adverse affect is in fact quite significant. The Union asserts the Employer’s conduct doesn’t just deny the employees pay for that work, but also leads to a cascade of other collective agreement violations. In this respect, the Union points to provisions which entitle partial-load employees to holiday pay and a certain level of job security through the accruing of seniority. 15. The Union relied on the following authorities: Humber College – and – OPSEU, 1999 CarswellOnt 4633 (Schiff); Cambrian College – and – OPSEU (unreported July 7, 1997) (Kruger), Fanshawe College – and – OPSEU (2002), 113 L.A.C. (4th) 328 (Burkett); Fanshawe College and OPSEU, 2002 CarswellOnt 9912 (Knopf); Humber College – and – 6 OPSEU (unreported, October 15, 2015) (O’Neil); and Fanshawe College – and – OPSEU (unreported, April 26, 2016) (Stout) V. ANALYSIS 16. At issue is the application of Article 32.09 to this grievance. Article 32.09 confirms the Union’s right to file union grievances. However, the Article goes on to place a limitation on this right. 17. The parameters of this limitation begin with whether the Union’s grievance is about “any matter upon which an employee would be personally entitled to grieve”. 18. There is no dispute that the factual circumstances leading to the Union grievance in the present case are factual circumstances which may also lead to an individual filing a grievance. In fact, the factual circumstances leading to Ms. Poulsen’s grievance are the same. 19. As noted by Arbitrator Schiff, the same factual foundation may involve different interests: those of the individuals directly impacted and those of the Union. 20. However, the co-existence of different interests does not mandate a conclusion that the identity of the pursuer of the grievance somehow alters the essential nature of the grievance. 21. In Fanshawe College, supra, Arbitrator Knopf noted the fact that the Union may have some broader interests than an individual grievor did not provide the Union with a basis to pursue its own grievance without consideration of the criteria set out in Article 32.09: The whole of Article 32.10 [as it was then] must be read carefully to ensure that the tests are not diluted. It is arguable that the Union has an interest in everything that happens with respect to a bargaining unit. The Union has an interest in the dues and contract interpretation in every discharge and suspension case 7 because “just cause” and compensation issues arise. However, that alone cannot mean that the Union could or should be able to grieve a discharge or suspension case under Article 32.10. 22. This passage was cited with approval by Arbitrator Leighton, in St. Lawrence, leading in that case to her rejecting the union’s argument that the fact that the union was challenging the employer’s approach to payment of certain job duties generally and not seeking any compensation for any individual employees meant this was a matter that an individual could not grieve. 23. For the same reasons, I am not persuaded by the Union’s arguments about its interests in this dispute making this a grievance about a matter which an individual could not grieve. At the heart of the matter is whether requiring employees to perform work after the expiry of their partial-load contracts is a violation of the collective agreement. The issue remains the same, regardless of whether the grievance is filed by an individual or by the Union. The fact the impact on the individual (payment for work) may be different than the impact on the Union (collection of dues) does not alter that. As noted by Arbitrator Knopf, there no reason that the interests of the Union could not be dealt with in the course of determining an individual grievance. 24. As such, I find this grievance is about a matter upon which an individual employee could grieve. 25. Of course, that does not end the matter. Article 32.09 only allows the Union to file a grievance in such a case if certain conditions are met. 26. The first issue is whether “the Union establishes that the employee has not grieved”. In the present case, the Union filed this grievance in April 2015. A grievance meeting was held between the parties in May 2015 and the Employer denied the grievance. The matter was 8 referred to arbitration by the Union, and by letter dated April 12, 2016, I confirmed the date and time of the hearing. Throughout this period, there was no individual grievance filed. 27. Ms. Poulsen filed a similar grievance, but she did not do so until April 26, 2016. 28. In my view, the timing of Ms. Poulsen’s grievance is significant. Article 32.09 is about the Union’s right to file a union grievance. At the time the Union filed it’s grievance, no individual had filed a grievance. Thus, as long as the remaining criteria were met, it was a valid grievance at that time. 29. I have considered the decision of Arbitrator Brown in Cambrian College, supra. In that case, an individual filed a grievance on the same issue the very day after the Union filed its grievance. In those circumstances, it is understandable that an arbitrator may conclude that a meaningful and practical application of Article 32.09 meant the union was barred from pursuing a union grievance. 30. However, in the present case, an individual did not grieve for over a year after the Union grieved, and not until almost the eve of the arbitration of the Union’s grievance. In those circumstances, it is difficult to conclude that the Union did not have the right to file this grievance. The Union filed its grievance with consideration for the circumstances as they existed at the time; it would be inconsistent with the plain wording of this provision (which is about “the right to file a grievance”) to judge that conduct on the basis of events that happened a year later. 31. The next issue is whether this grievance concerns an unreasonable standard that is patently in violation of the collective agreement. 32. Since this is a preliminary motion, being determined with only a few agreed facts, it is inappropriate to consider this issue with regard to the merits of the Union’s argument, or for 9 that matter the merits of the Employer’s defense. Rather, this issue should be determined on the premise the Union will be able to establish its allegations. 33. In considering this issue, I have given regard to the jurisprudence the violation must be one that is evident and plain on its face. 34. In my view, if the Union is successful in its assertion that the monies paid to partial-load employees for the 14 weeks do not include payment for the work of marking the final examination, then these individuals are being required to work with no pay. In my view, that would constitute a patent violation of the agreement, striking at the heart of the most basic tenet of employment - pay for work. My finding in this respect is supported by the conclusions in Fanshawe College, (Knopf) and Fanshawe College, (Stout ). In both those cases, the arbitrators were dealing with allegations that employees were being required to work without pay. While Arbitrator Starkman in St. Lawrence College, supra, concluded otherwise, despite similar allegations that employees were being required to work without being paid for it, I respectfully prefer the analyses of Arbitrators Knopf and Stout. 35. I am also of the view that the fact that the Employer offers many partial-load employees 14-week contracts means that this is a policy or standard followed by the Employer. If the Union is successful in its case that employee’s are being required to work without pay, it would clearly be an unreasonable standard. 36. The Employer, properly so I note, made no submissions with respect to the adverse effect on employees in this case. This is because the impact on employees to have to work without pay (if that is established) is clearly adverse. 37. In summary, I find the Union’s grievance meets the criteria in Article 32.09, and that this is a proper Union grievance. 10 VI. DISPOSITION 38. The Employer’s preliminary motion is dismissed. The Union may proceed with its grievance. Dated this 8th day of August, 2016. ___________________ JASBIR PARMAR