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HomeMy WebLinkAboutUnion 07-12-10 BETWEEN: Board of Arbitration: Appearances: For the Emplover For the Union IN THE MATTER OF AN ARBITRATION FANSHAWE COLLEGE - and - OPSEU Policy Grievance # 2006-0110-0101 re Professional Development Leave AWARD Paula Knopf, Chair Carla Zabek, Employer Nominee Ed Seymour, Union Nominee (the "Employer") (the "Union") Robert J. Atkinson, Counsel Sheila Wilson, Employee Relations Consultant Val Patrick, Presentor Gary Fordyce, Advisor/Chief Steward Darryl Bedford, 151 Vice President A hearing in this matter was held in London, Ontario, on December 3,2007. This case concerns a "Union Grievance" filed because of the way the College granted Professional Development Leave to a professor in 2005/06. At the outset of the hearing, the College raised a preliminary objection, asserting that the case is not arbitral because the complaint does not meet the preconditions for the arbitration of a Union grievance under Article 32.09. Accordingly, the College took the position that this Board of Arbitration does not have jurisdiction to hear and determine the grievance as filed. For the reasons that follow, the objection was upheld. An oral ruling was issued at the hearing. This Award confirms and explains that ruling in more detail. The important facts that form the background of this case are not in dispute. A professor applied for and was granted Professional Development Leave from September - April 2005/06 pursuant to Article 20. The purpose of the leave was to enable him to complete his degree at the University of Western Ontario. Because of his seniority, he was entitled to benefits and 70% of his salary during the period of his leave. However, he approached the Chair of his department and indicated that he needed extra money so he asked if he could teach some courses during the period of his leave. The Chair granted the professor's request and allowed him to teach six hours per week in classes that he had taught before on many occasions. He was paid on an hourly basis for those classroom hours. While this arrangement met the needs of the professor, it has caused grave concern for the Union. The Union asserts that the arrangement violates several tenants and provisions of the Collective Agreement. The Union's concerns can be summarized as follows: . That the professor was paid as if he was a part-time employee while at the same time retaining full-time status. [Although it should be noted that there was no evidence before the Board as to what hourly rate was paid to the professor.] 2 . That the College appears to have negotiated a "separate deal" with the professor, thereby ignoring and/or undermining the Union's right and responsibility to represent all employees. . That the professor was allowed to teach while on leave. . That no SWF was issued to the professor for the hours of teaching. . That no SWF was delivered to the Union regarding the professor's hours of teaching. . That the College did not deal with the situation under Article 11.01 F . That the professor was not properly compensated for the teaching that he did. . That the six hours of teaching that were given to the professor while he was on leave should have been assigned to another full-time member of the bargaining unit. . That the arrangement with the professor adversely affected other members of the bargaining unit because: 1. Violations of the Collective Agreement impact all employees; 2. The arrangement had a potential impact on the total number of Professional Leaves available to other professors; 3. The arrangement undermined the role of the Union with regard to the enforcement and administration of the Collective Agreement. The remedies that the Union is seeking are: 1. A declaration that the College violated the Collective Agreement; 2. An order requiring that the College cease and desist from allowing professors to teach while they are on Professional Development Leave; 3. An order requiring the College to deliver a SWF crediting the professor in question with his workload hours in 2005/06; 4. Compensation to the professor for his teaching on the basis of his full- time status; 5. An order requiring the College to add one additional Professional Development Leave to the next year's academic year entitlement. 3 The relevant provisions of the Collective Agreement are as follows: Article 1 RECOGNITION 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers, counselors and librarians, all as more particularly set out in Article 14, Salaries, except for those listed below: (i) Chairs, Department Heads and Directors, (ii) persons above the rank of Chair, Department Head or Director, (iii) persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, (iv) other persons excluded by the legislation, and (v) teachers, counselors and librarians employed on a part-time or sessional basis. NOTE A: Part-time in this context shall include persons who teach six hours per week or less. NOTE B: Sessional in this context shall mean an appointment of not more than 12 months duration in any 24 month period. Article 6 MANAGEMENT FUNCTIONS 6.01 It is the exclusive function of the Colleges to: (i) maintain order, discipline and efficiency; (ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, layoff, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the 4 manner and to the extent provided in this Agreement; (iii) manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programs, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement. 6.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. 11.01 F Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher by the College. Hours for such functions shall be attributed on an hour for hour basis. An allowance of a minimum of six hours of the 44 hour maximum weekly total workload shall be attributed as follows: four hours for routine out-of-class assistance to individual students two hours for normal administrative tasks. The teacher shall inform his/her students of availability for out-of- class assistance in keeping with the academic needs of students. 5 11.02C1 The functions of the WMG shall include: (i) reviewing workload assignments in general at the College and resolving apparent inequitable assignments; (ii) reviewing specific disputes pursuant to 11.02A4 and/or 11.02A6(a) 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 7, Union/College Committee (Local), as to amendments or additions to the provisions governing workload assignments at the College for location negotiation in accordance with 11.02G in order to address particular workload needs at the College. 11.02D2 The WMG shall have access to all completed SWFs and such other relevant workload data as it requires to review workload complaints at the College. 14.02C1 A full-time employee may request and, with the approval of the College, may undertake a less than full-load assignment for a mutually agreed period. 14.02C2 Such employee shall be paid on the basis of pro-rata base salary rather than on an hourly rate. Effective September 24, 1998, such employee shall continue to accumulate seniority on a full-time basis for the duration of the mutually agreed period. The method of calculating pro-rata base salaries and benefits under this section shall be established by mutual agreement 6 between the employee and the College. The request of the employee shall be in writing and a copy provided to the Union Local President. Article 20 PROFESSIONAL DEVELOPMENT LEAVE 20.01 The College recognizes that it is in the interests of employees, students and the College that employees are given the opportunity by the College to pursue College-approved professional development activities outside the College through further academic or technical studies or in industry where such activities will enhance the ability of the employee upon return to the College to fulfill professional responsibilities. 20.02 To that end, each College will grant a minimum of two percent of full-time members of the academic bargaining unit of the College concerned who have been members of the bargaining unit for a period of not less than six years, and an additional one percent of full-time members of the academic bargaining unit of the College concerned who have been members of the bargaining unit for a period of not less than 15 years, to be absent on professional development leave at any one time in accordance with the following conditions: (i) the purpose of the leave is for College- approved academic, technical, industrial or other pursuits where such activities will enhance the ability of the teacher, counselor or librarian upon return to the College; (ii) a suitable substitute can be obtained; (iii) the leave will normally be for a period of from one to 12 months; (iv) the employee, upon termination of the professional development leave, will return to the College granting the leave for a period of at least one year, failing which the employee shall repay the College all salaries and fringe benefits received by the employee while on professional development leave; 7 (v) the salary paid to the employee will be based on the following scale: 55% of the employee's base salary increasing by five percent per year after six years of employment with the College concerned to a maximum of 70% of the employee's base salary after nine years. It is understood that the College's payment is subject to reduction if the aggregate of the College's payment and compensation or payments from other sources during the period exceeds the amount of the employee's base salary. The amount and conditions of payment will be pro-rated for shorter leaves; (vi) Applications for professional development leave will be submitted in writing containing a detai led statement of the nature of the proposed leave and its perceived benefit to the College and the employee; to the Chair of the Department at least six months prior to the commencement date; (vii) All applicants will be notified in writing by the College President as to the disposition of their application for professional development leave; (viii) The College may on its own initiative propose plans of professional development leave to employees; however no employee shall be under obligation to accept such a proposal; (ix) This Article shall not preclude the College from permitting greater numbers of employees to be absent on professional development leave; (xiv) The College shall provide to the Union Local, once each year, the names of all applicants and the names of all successful applicants and the duration of the leaves granted. 8 Union Grievance 32.09 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 employees. Such grievance shall be submitted in writing by the Union Grievance Officer at Head Office or a Union Local President to the Director of Human Resources or as designated by the College, within 40 days from the occurrence or origination of the circumstances giving rise to the grievance commencing at Step One of the grievance procedure detailed in 32.02. The Submissions of the College The College asserted that this is not properly a Union grievance because the Union's complaints do not fit within the criteria of Article 32.09. It was argued that this case is essentially a complaint about the arrangements that were arrived at for an individual professor. It was stressed that those arrangements were requested by and met the needs of an individual professor who has raised no grievance about the way he was treated or paid. The College was adamant that Article 20 contemplates professors making individual arrangements regarding their leave requests and that nothing in the circumstances of this case violated the Collective Agreement. It was also stressed that nothing happened that undermined the role of the Union or that had any adverse impact on other members of the bargaining unit. The College stressed that this was a "one off' situation, designed to accommodate the financial and developmental needs of a professor. 9 Counsel for the College argued that if there were any improprieties regarding the granting of leave to the professor, his workload, his compensation or the failure to deliver the SWF, all those complaints could or should have been the subject matter of an individual grievance under the relevant provisions of the Collective Agreement. It was argued that in order for the Union to launch these complaints as a Union Grievance, it must demonstrate that the complaints meet the threefold criteria set out in Article 32.09. However, the College asserts that the Union has failed to demonstrate that there is a patent violation of the Collective Agreement, that others have been adversely affected and/or that an "unreasonable standard" has been applied. The College argued that the main focus of the grievance and that the Union's remedial requests are applicable to the individual professor and that this demonstrates that this is not a proper Union grievance. The College relies on the arbitral discussions about the strict interpretations of this article: Sir Sanford Fleming College and OPSEU, April 25, 1988, Brent; Loyalist College of Applied Arts and Technology and OPSEU, May 29,2001, O'Neil; Seneca College and OPSEU, January 31, 1991, P.C. Picher; Fanshawe College and OPSEU, December 17, 2002, Knopf; George Brown College and OPSEU, June 8, 1994, Devlin; Algonquin College and OPSEU, October 16, 1995, McLaren, St. Lawrence CAA T - Academic and OPSEU, May 12, 2004, Knopf. Applying these cases to the present situation, the College asserted that this is not properly a Union grievance and therefore there is no valid grievance to form the jurisdictional basis for this Board of Arbitration. Acknowledging that the objection to arbitrability had not been raised during the grievance process, counsel for the College submitted that because its objection is focused on the "fundamental issue of jurisdiction", it can be raised at any time. Reliance was placed on Cambrian College and OPSEU, September 11, 2002, Brown. Finally, the College expressed frustration over the fact that it must defend itself after having made special arrangements to meet a professor's needs, after he 10 benefited from the arrangements both personally and professionally, and where no one was harmed by the situation. The College suggests that everyone "won" from the situation, including the Union, because the hours that the professor was allowed to teach would have been hours assigned to a partial load or sessional appointee if the arrangement had not been in place. Therefore, the College stressed that there was no harm caused to anyone, and it wonders why the Union has launched this complaint. The Submissions of the Union At the outset, the Union asserted that the objection to jurisdiction is untimely. It was stressed that the College never raised this objection while the grievance was being dealt with during the grievance procedure. The Union asserts that the College should be deemed to have waived any procedural or jurisdictional challenges because of its failure to raise them until the month leading up to this arbitration. Turning to the merits of the jurisdictional challenge, the Union argued that this case fits properly within the criteria of Article 32.09. It was stressed that the Union's complaints relate directly to the application, interpretation and administration of the Collective Agreement and are focused on the Union's role as the exclusive representative of the members of the bargaining unit. The Union asserted that the arrangements with the professor undermined the wage structure, the leave provisions of the Collective Agreement and the integrity of the bargaining unit. The Union stressed that the arrangements had the effect of treating the full-time professor as if he were a part-time employee. The Union is also particularly concerned about the College's failure to deliver a SWF for the professor's teaching hours. The Union stressed that the Collective Agreement demands the delivery of a SWF to a professor in order to ensure proper assignments. It was argued that the failure to provide the SWF is a clear violation of the Collective Agreement and undermines the Union's ability to 11 oversee or "police" the wage structure of the contract. Therefore, it was argued that the Union has demonstrated patent violations of the Collective Agreement and policy concerns that meet the criteria of Article 32.09. The Union also argued that all the violations of the Collective Agreement in this situation affected the rights of other bargaining unit members because the Union and all employees have a "stake" in ensuring that the contract is respected. It was also said that the teaching hours could have been assigned to another full- time professor and that another leave might have been granted if this arrangement had not been put in place. The Union asserts that unless it is allowed to pursue this grievance in this form, the situation could be the "thin edge of the wedge" that could lead to Colleges negotiating private arrangements with professors that are outside the terms of the Collective Agreement. The Union relied on the following case law that deals with the importance of determining the real essence of a grievance and of respecting the roles of unions in contract administration: Fanshawe College of Applied Arts and Technology and OPSEU, June 28, 1996, Brown; Fanshawe College and OPSEU, September 21, 1999, Finley, Re Greater Sudbury Hydro Plus Inc. and C. u.P.E., Local 4705, September 25, 2003, Dissanayake; Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local 2486, August 6, 1975, Ontario Court of Appeal. The College's Reply Submission The College asserts that nothing in the Collective Agreement requires the College to deliver a SWF to the Union except under the specific circumstances of the operations of the Workload Monitoring Group. Further, it was argued that the Union has failed to demonstrate that the situation adversely affected any other employees' "rights". It was pointed out that even if the six hours of classes could have been assigned to other full-time professors and/or if another professional leave might have been granted, there is no contractual "right" to any 12 of those concepts. It was argued that the assignment of teaching hours and the granting of leave requests remain within the scope of management discretion. It was stressed that this case should simply be viewed as an arrangement to accommodate one situation. It was conceded that the Collective Agreement does not contemplate that a full-time professor would be compensated at an hourly rate for teaching in the situation under scrutiny here. However, it was stressed that if the individual was improperly treated, the appropriate way to deal with that would have been by way of an individual or workload grievance. It was argued that Article 32.09 was not intended to deal with a "one off" situation where no one else's rights were adversely affected. It was suggested that the Union can only invoke the Article where the rights of more than one employee are affected. THE DECISION The College's objection to arbitrability concerns a fundamental question of jurisdiction because without a valid Article 32.09 grievance, this Board of Arbitration has no authority. It is always unfortunate when an objection is first raised at arbitration. However, because this is a jurisdictional matter, the College's failure to raise the preliminary objection on a timelier basis is not a bar from it raising it at this time. See Cambrian College, supra. A Board of Arbitration's jurisdiction arises from the Collective Agreement and the grievance before it. If the grievance is not valid, the jurisdictional foundation crumbles. However, much latitude is given to the scrutiny of the grievance, because no one wants the labour arbitration process to devolve into procedural gamesmanship, where the merits of complaints can be defeated by the minefields of technical errors. This is recognized in the case law stemming from Blouin Drywall, and Greater Sudbury Hydro, supra. 13 However, an equally important principle of labour law is that the parties' Collective Agreement must be honoured. Article 32.09 is a specific and detailed provision that the parties have adopted in the course of their sophisticated and carefully constructed Collective Agreement. Arbitrators have dealt with the language many times and always given it effect and meaning. It is recognized as limiting the Union's ability to complain about alleged violations of the Collective Agreement unless it can demonstrate that there was an "unreasonable standard", a "patent violation" and "adverse effects" on the "rights of employees". All three criteria must be met. See Cambrian College, Sir Sanford Flemming College, Loyalist College, Seneca College, supra. In the case at hand, the Union has strenuously asserted that it has demonstrated that there are "patent violations" of the Collective Agreement. The Union has also asserted that it has demonstrated that its right to represent the bargaining unit has been undermined. We cannot and do not comment on the strength of those allegations. What is important to this preliminary objection is the fact that Article 32.09 demands that the "rights of other employees" are adversely affected. This requires that the Union demonstrate more than a mere violation of the Collective Agreement. The fact that Article 32.09 refers to "standards" and the "rights of employees" means that the Union grievances must deal with matters of general application, not just specific situations. While some specific situations may have wide ranging implications, those implications are necessary preconditions for a Union Grievance under this Collective Agreement. This concept was recognized in an earlier case involving Fanshawe College1, December 17,2002, supra: . . . The Union may still launch a Union grievance under Article 32.10 [currently Article 32.09] if it can demonstrate that the allegations concern an unreasonable standard that is patently in violation of the agreement and adversely affects the rights of employees. This threefold test has been ably addressed by other 1 While this Chair is reticent about quoting herself, there is no reason to "reinvent the wheel" when the quotation is actually a summary of the case law to date. 14 boards of arbitration as cited above. We can do little to add to their analysis, except to emphasize that it is important to give effect to the intent of Article 32.10. This article was clearly designed to allow a union to mount grievances. But restrictions were placed on this to ensure the Union does not have a free hand to launch cases that more appropriately should be filed by individuals. On the other hand, the clause also recognizes that there may be situations where the Union may have an interest to pursue on behalf of its membership, even if an individual is reluctant to launch the grievance. The whole of Article 32.10 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 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. That article demands that the Union grievance involves higher mattes concerning allegations of patent violations and unreasonable standards that adversely affect the rights of employees generally. .. . . The importance of this passage is that it summarizes the consistent arbitral jurisprudence that recognizes that Union grievances under this Collective Agreement are restricted to situations where it has been demonstrated that the rights of employees have been affected. In the case at hand, we are dealing with a specific situation triggered by an individual professor's request and the College's compliance with that request. This is not a case where any actions by the College affected any other employees' actual entitlements under the Collective Agreement or adversely impacted on their employment rights. We agree with the Union that it is fundamental to collective bargaining that the Employer cannot make deals with individuals in the bargaining unit that are outside of the terms of the Collective Agreement. That would adversely affect the rights of the Union and all the employees they represent in the bargaining unit. If the evidence revealed such a situation, this Board of Arbitration would 15 readily conclude that Article 32.09 is designed to allow the Union to refer the matter to arbitration. However, the facts of the case at hand simply reveal a situation where the Professional Development Leave was requested and allowed to enable a professor to upgrade his credentials. He then asked for the opportunity to teach six hours per week in order to earn extra money to supplement the percentage of salary that he was receiving pursuant to the leave provisions. The College complied with this request in order to address the professor's particular circumstances. There is no suggestion that the College's intentions were anything other than honourable. The College was simply interested in meeting the professor's needs on this "one-off" basis. If the facts had in any way suggested that the arrangements with the professor were designed to or actually side-stepped the Union's right to represent the employees in the bargaining unit, we would be very concerned. However, the submissions of the parties suggest none of that. Article 32.09 is not designed to prevent the College from acting in a way that addresses the legitimate needs of an individual, unless it has an adverse impact on others or the Collective Agreement itself. It is designed to protect the needs of the employees more generally. To allow this grievance to proceed under these particular facts and with these unique circumstances would not be consistent with or fulfill the purpose of Article 32.09. Therefore, we must conclude that this is not a proper Union grievance within the meaning of Article 32.09. However, we must emphasize that a College cannot make individual arrangements with members of the bargaining unit that are contrary to the Collective Agreement. Where individual circumstances suggest that alternative 16 arrangements may be appropriate or more humane than the strict application of the Collective Agreement may allow, the parties may well be able to avoid more grievances such as this one if the College were to consult with the Union to see if mutually agreeable arrangements can be achieved. We should also note that the questions of whether a professor on Professional Development Leave can teach at all and/or for what rate of pay remain unresolved. For all these reasons, this Board of Arbitration has declared that this complaint is not arbitrable as a Union grievance under this Collective Agreement. Therefore, we do not have jurisdiction to proceed to determine the merits of the case. Accordingly, these proceedings are terminated. Dated at Toronto this 10th day of December, 2007. "Paula Knopf" Paula Knopf - Chair I concur "Carla Zabek" Employer Nominee I concur "Ed Sevmour" Union Nominee