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HomeMy WebLinkAboutVan Woudenberg 16-12-14 IN THE MATTER OF AN ARBITRATION UNDER THE COLLECTIVE BARGAINING ACT, 2008 ~ BETWEEN ~ SHERIDAN COLLEGE INSTITUTE OF TECHNOLOGY AND ADVANCED LEARNING (“EMPLOYER or COLLEGE”) ~ AND ~ THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (LOCAL0244) (vanWoudenberg) (“UNION”) BOARD OF ARBITRATION: Deborah Leighton, Chair Ann Burke, Employer Nominee Pam Munt-Madill, Union Nominee APPEARANCES: For the Employer Daniel J. Michaluk, Hicks Morley For the Union Avril Dymond, OPSEU 2 Decision [1] The grievor is a full-time professor in the Department of Humanities and Social Science at the college. He grieves that repeated changes to his workload assignment in the fall term of 2013 for the winter term in 2014, and scheduling his teaching away from his home campus interfered with his union activities, therefore violating his rights under the collective agreement. Initially the grievor challenged the winter 2014 teaching assignment to the college workload monitoring group (WMG) under Article 11 of the collective agreement. However, on December 10, 2013 he filed the grievance before us, under Article 32. [2] The college objects to the Board’s jurisdiction to hear this matter and has asked us to dismiss the grievance because it falls within the exclusive jurisdiction of a workload resolution arbitrator (WRA). The union opposes the motion. The union submits that the matter is within our jurisdiction, since it is about time-tabling, and in essence, is a complaint about discrimination on the basis of union activity. A brief summary of the parties’ submission follows. The matter proceeded by way of an agreed statement of facts and written submissions. The agreed statement of facts can be found at Appendix A. Reference to the parties’ legal arguments shall be referred to in our analysis. The College’s Submission [3] Counsel for the college argued, in sum, that the essential subject matter of the grievance relates to a workload assignment and disputes about workload assignments are within the 3 exclusive jurisdiction of a WRA. Counsel argued further that the grievance form, the grievance meetings, the remedies requested and the context of the grievance all indicate that the essential subject matter of the complaint relates to the grievor’s workload assignment in the winter term in 2014. The grievance states as follows: … repeated changing workload assignments during the term, and inequitable assigning of workload, and the assigning of teaching hours away from home campus interfering with union activity. Counsel argued that the grievor raised the pattern as evidence of an alleged improper motive for the winter 2014 workload assignment. There was no substantive discussion of any other particular allegations. The grievor also complained that the workload assignment interfered with his union steward duties. However, counsel for the college contends that the remedies requested are particular to the assignment of work. He cited paragraph one and eight under “settlement desired,” which provide as follows: 1. That the college immediately reassign the faculty member union steward to his home campus just like the other eight Trafalgar union stewards whose teaching hours are only at their home campus of Trafalgar so that the grievor is able to act and remain as a union steward for the 70 Trafalgar faculty members who voted to have him represent them and their interest (with 70 votes at Trafalgar in the election April 2013-clearly the most popular union steward at his home campus of Trafalgar) 2. That the College assign workload and professional responsibilities in an equitable manner as to the grievor’s colleagues and to the grievor’s teaching expertise and seniority and according to all other applicable and appropriate articles. Thus, in counsel’s submission, the context of the grievance is about the winter 2014 workload assignment. The grievor objected to a change in his standard workload form (SWF) and the content of his second SWF. Thus the grievor referred his second SWF to a 4 WRA. Subsequently, the grievor abandoned his workload complaint and filed the grievance before us. [4] Counsel for the college argued that disputes about workload assignments are within the exclusive jurisdiction of a WRA. This is true even if the dispute raises a complaint about harassment and discrimination. The parties to this collective agreement have created a special workload resolution complaint procedure to resolve these kinds of complaints. The process is expeditious because workload disputes must be dealt with quickly or they become moot. SWF’s are issued at least six weeks before the start of term and any complaints about them must be raised and processed expeditiously under the collective agreement requirements. [5] The college relied on the following cases: St. Lawrence College and OPSEU, Re, 2004 CarswellOnt 10393 (Knopf); George Brown College of Applied Arts and Technology and OPSEU Local 556, unreported (November 10, 2001) (Snow); George Brown College of Applied Arts and Technology and OPSEU Local 556, unreported (November 25, 1998) (Thorne); OPSEU and Niagara College, unreported (November 29, 1995) (Mitchnick); Weber v Ontario Hydro, 1995 CanLII 108 (SCC) (excerpt only); George Brown College of Applied Arts & Technology v. OPSEU, 2003 CarswellOnt 4880 (Ont CA); Algonquin College of Applied Arts and Technology and OPSEU, Local 415 (Wojcik), Re, 2014 CarswellOnt 13489 (Slotnick); OPSEU v. Algonquin College, unreported (July 8, 2010) (Stephens); OPSEU v. Humber College, unreported (November 7, 2010) (Whitehead); Fanshawe College and OPSEU (Gurofsky), Re, 2016 CarswellOnt 15115 (Davie). 5 The Union’s Submission [6] Counsel for the union submitted, in sum, that contrary to the college’s position, this is a case that challenges the motivation in scheduling the grievor in a particular way, rather than the scheduling itself. The crux of the grievance is that the college conspired to interfere with the grievor’s ability to act as a steward. Counsel argued further that the problem of union interference was only realized after the grievor learned that he was scheduled to teach a majority of his courses away from his home campus of Trafalgar. [7] Counsel also submitted that the WRA process is not suitable for the complaint before us, in that it is generally speedy and less formal than a hearing under Article 32. Also, questions that affect the union as a whole, such as providing stewards, are not proper subjects for the WRA. The remedies sought in the grievance are largel y intended to benefit the union: 1. That the college immediately reassign the faculty member union steward to his home campus just like the other eight Trafalgar union stewards whose teaching hours are only at their home campus of Trafalgar so that the grievor is able to act and remain as a union steward for the 70 Trafalgar faculty members who voted to have him represent them and their interest (with 70 votes at Trafalgar in the election April 2013-clearly the most popular union steward at his home campus of Trafalgar) However, remedies granted by the WRA relate to the individual’s workload. Thus, in counsel’s submission an issue like this that affects the union is not a proper subject matter for a WRA. Moreover, there can be no doubt that the grievor was concerned about the 6 effect of his scheduled classes or his ability to fulfill his duties as a union steward, and saw it as union interference. [8] The union relied on the following cases: OPSEU v. Humber College, unreported (January 19, 2004) (Whitehead); Fanshawe College (Gurofsky) supra. The College’s Reply [9] Counsel responded to the union’s argument with three points. In sum, they are that the jurisdiction of a WRA is exclusive. The characterization of the grievance as essentially claiming union interference does not give us jurisdiction to hear the matter. The union’s distinction between workload review and scheduling is inapplicable in fact and not supported by law. Analysis [10] Having carefully considered the submissions of the parties we have decided to grant the college’s motion and dismiss this grievance. We have concluded that we do not have the jurisdiction to hear it for the reasons that follow. [11] Article 11 provides detailed requirements relating to how a teacher’s workload is determined and recorded in a SWF. For our purposes the following articles are of note. Article 11.01 A states that “each teacher shall have a workload that adheres to the provisions of this article.” Article 11.02 A 5 states that: “the timetable shall set out the 7 schedule and location of assigned workload hours reported on the SWF, on a Timetable Form to be provided by the College, and a copy shall be given to the teacher no less than two weeks prior to the beginning of the period covered by the timetable, which shall be the same as that covered by the SWF.” [12] Two kinds of individual complaints are governed by the workload resolution complaint procedure. Article 11.02 A 4 includes complaints about “total workload.” Article 11.02 A 6 includes a broader range of workload complaints and provides as follows: a) In the event of any difference arising from the interpretation, application, administration or alleged contravention of 11.01, 11.02, or 11.09, a teacher shall discuss such difference as a complaint with the teacher’s immediate supervisor. The discussion shall take place within 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 supervisor’s response to the complaint shall be given within seven days after discussion with the teacher. Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the WMG within seven days of receipt of the immediate supervisor’s reply. The complaint shall then follow the procedures outlined in 11.02 B through 11.02 F b) Grievances arising with respect to Article 11, Workload, other than 11.01, 11.02 and 11.09 shall be handled in accordance with the grievance procedure set out in Article 32, Grievance Procedures. Article 11.02 C 1 provides that “the functions of the WMG shall include”, inter alia, 8 i. reviewing workload assignments in general at the college and resolving apparent and inequitable assignments; ii. reviewing specific disputes pursuant to 11.02 A 4 and/or 11.02 A 6 (a) Article 11.02 C 2 lists variables that the WMG may consider affecting work assignment: 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; xiii. Level of complexity and rate of change in curriculum; xiv. Requirements for applied research; xv. Required translation of materials. Article 11.02 E 1 states: If following a review by the WMG of an individual workload assignment which has been forwarded to the WMG, the matter is not resolved, the teacher shall be so advised in writing. The matter may then be referred by the teacher to a WRA provided under the agreement. Failing notification by the WMG within three weeks of the referral of the workload assignment to the WMG, the teacher may refer the matter to the WRA. Further Article 4.01 B provides as follows: 9 Where an employee has a complaint about workload based upon the Ontario Human Rights Code, the employee shall have a right to pursue the complaint in accordance with the procedures set out in Article 11.02. WRA’s assumed jurisdiction over discrimination, harassment and accommodation complaints that arose within a workload assignment, before the parties included Article 4.01 B in the collective agreement. In Humber College, supra, Arbitrator Whitehead, acting as a WRA, held that he had the jurisdiction to hear the grievor’s allegation that she should be accommodated with teaching at the college’s south campus. In Algonquin College (2014), supra, Arbitrator Slotnick, acting as a WRA, held that he had the jurisdiction to consider the grievor’s allegations that the college had discriminated against her because of her union activity in assigning academic advising hours. In disagreeing with the college’s position that he had no jurisdiction over the complaint he said: I disagree. In my view, decisions to change workload must be made within the general context of the Collective Agreement, which includes protection against discrimination on human rights grounds and on the basis of activity in the union. It would be improper, in my view, for the college to base its decision- making on an employee’s activities in the union. A SWF that was tainted by that type of discrimination could be challenged through the WRA process. Thus, it is clear that WRA’s have the jurisdiction to consider a workload complaint in the context of the whole collective agreement, which includes protection against discrimination against a member for union activity. [13] The central issue in the matter before us is whether disputes about workload that include an allegation of discrimination are within the exclusive jurisdiction of the WRA, as 10 argued by the college or exclusive to or concurrent with the power of arbitrator’s appointed under Article 32, as contended by the union. [14] Both counsel cited the recent decision, Fanshawe, supra, (hereinafter, Gurofsky) in which Arbitrator Davie addressed the same issue that is before us. There the college argued that workload grievances fell within the exclusive jurisdiction of the WRA. The union argued that some of the complaints about workload alleged breaches of the collective agreement for discrimination on the basis of union activity and under the Human Rights Code and were therefore proper matters for an Article 32 arbitrator and not for a WRA. [15] In considering the submissions before her Arbitrator Davie said: 87. What is clear from the collective agreement is that the parties have created two streams for handling employee grievances. More particularly, where the grievance involves the SWF, or is a dispute over an individual teacher’s specific workload, those grievance are to be dealt with under the two-part process set out in article 11 while other types of grievances are dealt with under a rticle 32. Article 11 provides that complaints about workload must first go to the supervisor, then to the WMG, and if not resolved to the Workload Resolution Arbitrator. Arbitrator Davie agreed with the college that workload grievances fall within the Article 11 provisions of the collective agreement. [16] Arbitrator Davie dismissed all but two of the grievor’s workload complaints for being exclusively within Article 11 jurisdiction. In commenting on the right of the WRA to 11 consider human rights allegations as part of a WRA adjudication, she suggested when a human rights allegation is made in connection with a SWF complaint, the jurisdiction between two streams may be concurrent 86. It may be that an article 11 does not typically deal with harassment and discrimination issues when dealing with an individual teacher’s workload. I don’t disagree that those types of issues are more typically dealt with under the article 32 grievance/arbitration provisions of the collective agreement. However, there is nothing in article 11 which precludes either the WMG or a Workload Resolution Arbitrator from considering an allegation of discrimination in connection with the teacher’s workload. When it comes to application of the Code to issues relating to the teacher’s workload there may therefore be concurrent jurisdiction. (Indeed, although the collective agreement did not do so at the time, the current collective agreement specifically states in article 4.01B “Where an employee has a complaint about workload based upon the provisions in the Ontario Human Rights Code, the employee shall have a right to pursue the complaint in accordance with the procedures set out in Article 11.02”) Arbitrator Davie went on to say that an exception must be made for two of the grievor’s complaints which allege “that the schedule or timetable which the grievor was given was discriminatory and/or constituted harassment because it precluded him from “family association” and was imposed because of his union activity (in filing grievances”) at para. 91. [17] Arbitrator Davie concluded that the substance of the two grievances relate to the timetable, not workload. The grievor in Gurosfky, supra, alleged that the deliberate 12 timetabling adversely affected his time with his family violating both the protection against discrimination for union activity and family status. [18] The union urged us to follow the reasoning in this case. The union contends that the complaint before us relates to the grievor’s SWF for the winter term of 2014, and is essentially that the college interfered with the grievor’s union activity by scheduling his teaching so that he would lose his position as a steward. Counsel argued that scheduling and location are separate from workload complaints, and therefore we should take jurisdiction of the matter. [19] In contrast, counsel for the college argued that the characterization of a claim as interference with the grievor’s union activities does not confer jurisdiction. Counsel relied on the Supreme Court of Canada in Weber, supra, which provides that “the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed” (Weber, at para. 34). In counsel’s submission Weber made it clear that exclusive jurisdiction is undermined if jurisdiction is determined by how a party frames the legal issues. Counsel urged us to find that the case before us is about workload assignment, which includes timetabling and therefore must be heard by a WRA. 13 [20] We agree with the college’s argument here. Framing the issue as essentially interference by the college with the grievor’s union activity does not confer jurisdiction on us. The Article 11 provisions of the collective agreement are meant to give exclusive jurisdiction to WRA’s for workload complaints. Further, we are persuaded that both the collective agreement provisions and case law support this conclusion. [21] As noted earlier, Arbitrator Davie agreed in Gurosfky, that WRA’s have jurisdiction over workload complaints, but she retained jurisdiction for two grievances relating to workload. It appears that those grievances alleged a pattern of discrimination over a three year period. These facts are very different to those before us. The grievance before us is about repeated changes to the grievor’s SWF for one term, and assigning him teaching away from his home campus in that term. In so far as Arbitrator Davie made a distinction between workload and timetabling or scheduling of work, we have to disagree that this distinction confers jurisdiction over the matter before us. [22] The grievor’s complaint combines workload and timetabling, which have consistently been found to be within the jurisdiction of the WMG and a WRA. In St. Lawrence College, Arbitrator Knopf, sitting as an Article 32 chair, dismissed a grievance alleging that the college breached the time limits for providing a SWF and a timetable to a new teacher. The board held unanimously that: 17. The Collective Agreement could not be clearer. It refers to differences arising with respect to Article 11.01 and 11.02 as “complaints” that are to be processed at the WMG forum. In contrast, the Collective Agreement mandates that “grievances” 14 arising with respect to workload issues “other than 11.01 and 11.02” are to be referred to arbitration. Therefore, the Collective Agreement draws a clear distinction between the 11.01 and 11.02 “complaints” and other types of workload “grievances.” Therefore, Article 11.01 and 11.02 complaints can only be dealt with by the Workload Monitoring Group or ultimately Workload Resolution Arbitration. They are not within the jurisdiction of a grievance arbitration board under this Collective Agreement. In Humber College, supra., Arbitrator Whitehead, sitting as a WRA, considered the complainant’s allegations that the assignment of work between campuses affected the grievor’s alleged disability. This case is very similar to the one before us. Arbitrator Whitehead heard a complicated complaint on the accommodation of the complainant within the Article 11 provisions. [23] These cases are consistent with the clear language in Article 11.02 A 5, cited above, which requires that a teacher’s timetable shall set out the schedule and the location of assigned work as found in the person’s SWF. At paragraph 4 of its submission, the union acknowledged that SWF’s do not provide the schedule or location of where courses will be taught. “This information is provided at a later date, not later than two weeks prior to the beginning of the term in a Timetable Form, prescribed under Article 11.02 A 5.” (Appendix 1, para. r) It is also clear that any dispute of provisions under Article 11.02 falls within the jurisdiction of the WRA per Article 11.02 A 6. Arbitrator Davie did not address this language in Gurofsky, supra. We are persuaded that the essential complaint before us is about the grievor’s timetable and assignment of work away from his home campus. Consequently, we must conclude that the matter should have been heard under Article 11 procedures and not under Article 32. 15 [24] On a final point, one of the union’s concerns was the adequacy of the WMG and WRA procedure to deal with complicated matters that allege discrimination based on the Code or union activity. The Humber case, by way of example, convinces us that it is more than adequate. A close reading of that decision shows that significant evidence relating to the issue of accommodation was tendered to the WRA. Further, as the board in St. Lawrence College held, the procedures of the WMG and WRA are better suited to workload matters: 18. Indeed, the enumerated functions of the WMG illustrate its suitability for matters such as the ones raised by this case. The WMG can review the individual workload assignment (11.02 C 1 9 (iv)), give consideration to the nature of the subjects to be taught (11.02) C 2 (i), consider the lead time for preparation of the new schedule (11.02 C 2 (viii)) and look at the timetabling of the workload (11.02 C 2 (xii)). These functions give the WMG the power and the authority to deal appropriately with matters within its expertise. This is probably why the parties to this Collective Agreement have contracted to keep complaints and difference concerning Articles 11.01 and 11.02 within the exclusive jurisdiction of the WMG and the WRA. 19. The functions and mandates of the WMG and the WRA illustrate how well they are suited for the task. In the case at hand, the WMG could consider the nature of the new teacher’s courses, the time available for her to prepare for the new term and the timetabling of her classes. If a complaint has been lodged, a practical and timely resolution could have been achieved. (Emphasis added) 16 [25] Thus, we are persuaded that the WRA’s powers under Article 11 to hear workload issues are more than sufficient to consider an allegation such as the interference with union activity as part of the case. [26] For the reasons given above, we must conclude that we do not have the jurisdiction to hear this matter and we hereby dismiss this grievance. Dated at Toronto this 14th day of December, 2016 Deborah Leighton Deborah J. Leighton, Chair Pamela Munt-Madill Pamela Munt-Madill, Union Nominee, I concur Ann Burke Ann Burke, Employer Nominee, I concur 17 Appendix A The Parties relied on the following facts: (a) At the relevant time, the parties were bound by a collective agreement, an accurate copy of which is attached at Tab A. (b) Maximiliaan van Woudenberg is a professor of English and Communications and a member of the academic bargaining unit. (c) At the relevant time, Professor van Woudenberg reported to Lee Easton, Associate Dean, Faculty of Humanities and Social Sciences. He was also a union steward. (d) In early November 2013, Associate Dean Easton gave Professor van Woudenberg a Standard Workload Form (or “SWF”) for the winter 2014 term. The document attached at Tab B – the “First SWF” – is an accurate copy of this SWF. On page 2, Professor van Woudenberg referred his proposed workload to the College Workload Monitoring Group – a “WMG.” (e) Of the three sections assigned on the First SWF, two were for sections at Davis Campus in Brampton. (f) Following a meeting and discussion between Professor van Woudenberg and Associate Dean Easton, Associate Dean Easton gave Professor van Woudenberg an amended SWF for the winter 2014 term. The document attached at Tab C – the “Second SWF” – is an accurate copy of this SWF. (g) By issuing the Second SWF, Associate Dean Easton assigned an additional section of LITT15436G at Davis Campus. He also corrected an issue related to an evaluation factor that Professor van Woudenberg has raised. The amended assignment entailed teaching three sections at the Davis Campus in Brampton. (h) After receiving the Second SWF, Professor van Woudenberg sent an e-mail to Associate Dean Easton that said, “Seriously? Yet another change in the SWF?” (The prior term, the College also issued a number of amendments to the Professor van Woudenberg’s SWF, an issue Professor van Woudenberg unsuccessfully took to a Workload Resolution Arbitrator.1 (i) Professor van Woudenberg also stated, “I herewith forward the SWF to WRA.” The document at Tab D is an accurate copy of this email. (j) Professor van Woudenberg then had an email dialogue with Karen Tobin of Human Resources about whether he intended to refer the Second SWF to a WMG 1 The document at Tab K is an accurate copy of the Arbitrator McLean decision that disposed of Professor van Woudenberg’s prior “multiple SWF” complaint. 18 (as opposed to a Workload Resolution Arbitrator or “WRA”). The e-mail chain at Tab E accurately captures the dialogue between Professor van Woudenberg, Associate Dean Easton and Ms. Tobin as it stood to December 13th. (k) Around the same time, Professor van Woudenberg filed the grievance. The document at Tab F is an accurate copy of the grievance, which alleges, “Repeated changing workload assignments during the term, inequitable assigning of workload, and the assigning of teaching hours away from Home Campus interfering with Union activity.” (l) After he filed the grievance, Professor van Woudenberg told Ms. Tobin that he was not going to pursue a challenge to his winter 2014 assignment at the College WMG. He stated: Please be advised that this matter is part of the grievance filed on 10 December, 2013. The grievance notes Article 11. (m) Professor van Woudenberg also e-mailed Ms. Tobin on January 7th to advise her that a change made by Associate Dean Easton to remove of the three Davis Campus sections did not resolve the grievance. The document at Tab H is an accurate copy of this e-mail. (n) The parties met at Step One. At Step One, Professor van Woudenberg argued he was treated inequitably in relation to the other union stewards at the Trafalgar Campus by being assigned to Davis Campus and raised the assignment of multiple SWFS as an abusive pattern that extended back to the prior term. Professor van Woudenberg also argued that he would be precluded from acting as a union steward by the College’s assignment. The College denied any breach but volunteered to look at the Union’s bylaws. The document at Tab I is an accurate copy of the College’s Step One response. (o) The parties met at Step Two. At Step Two, Professor van Woudenberg made the same allegations as he did at Step 1. He argued that the work assignment was part of a pattern of harassment and that he should therefore be re-assigned to classes at the Trafalgar Campus as a remedy. The document at Tab J is an accurate copy of the Step Two response. (p) At both step meetings, there was no substantive discussion about any particular allegations other than the grievor’s winter 2014 workload assignment. (q) Per Article 11.01B 1, the SWFs describe the following things: teachings contact hours, attributed hours for preparation, attributed hours for evaluation and feedback, and attributed hours for complementary functions 19 (r) The SWFs, however, do not describe the schedule or location where courses are taught. This information is provided at a later date, not later than two weeks prior to the beginning of the term in a Timetable Form, prescribed under Article 11.02 A 5. (s) Upon receipt of his Timetable Form, made available to the Grievor online on or about 3 December 2013, the Grievor discovered that he had a majority of his courses assigned away from his home campus of Trafalgar, in Oakville. (t) On 3 December 2013, he wrote a letter to Dr. Lee Easton, his supervisor, advising the College that he viewed this decision to send him away from his home campus as a reprisal for using the grievance procedure, and acting effectively as a Union steward.