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HomeMy WebLinkAboutUnion 19-09-30 IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the “College”) -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 110 (“OPSEU” or the “Union”) RE OPSEU Grievance # 2018-0110-0017 SOLE ARBITRATOR: John Stout APPEARANCES: For the College: David W. Foster - Hicks Morley Lisa Jones – Labour Relations Consultant Don McIntyre - Labour Relations Consultant For the Union: Lesley Gilchrist -Grievance Officer Darryl Bedford – President Local 110 Mark Feltham – Chief Steward. Local 110 HEARING HELD IN LONDON, ONTARIO ON SEPTEMBER 10, 2019 AWARD Introduction 1. This matter concerns a Union grievance dated September 13, 2018, alleging that the College violated articles 26, 1, 10 and any other relevant articles of the Academic Employees Collective Agreement (the “Collective Agreement”) by refusing to pay partial-load employees who had teaching contact hours (also referred to as TCH) scheduled on October 5, 2018. OPSEU asserts that the College did not provide partial-load employees with sufficient notice that classes normally scheduled for October 5, 2018 would be cancelled, while at the same time requiring the affected partial-load employees to perform job duties that week without compensation. 2. The College asserts that they did not violate the Collective Agreement because no classes were scheduled on October 5, 2018. Instead, The College indicates that October 5, 2019 was scheduled as a work-study day in the Academic Calendar. The College points out that the Academic Calendar was approved well in advance by College Council on May 24, 2107. The College also objects to my jurisdiction to hear and determine this matter, asserting that the grievance is not a proper Union grievance in accordance with article 32.09 of the Collective Agreement. 3. This award addresses the College’s preliminary objection that I do not have jurisdiction because the grievance before me is not a proper Union grievance pursuant to article 32.09 of the Collective Agreement. Submissions 4. The relevant background facts are not in dispute. I was provided with a number of documents and counsel stipulated some facts during opening statements, at which time they also made submissions on the preliminary objection. 5. The Collective Agreement applies to both full-time professors and partial-load employees. Generally full-time professors are paid an annual salary (article 14) and their workload is subject to specific rules (see article 11). Article 26 defines partial-load employees as “a teacher who teaches more than six and up to and including 12 hours per week on a regular basis, see articles 14.04A and 26.01B. Partial-load employees have limited job security and are issued contracts prior to each academic semester. A partial-load employee does not receive a salary or vacations. Instead, a partial load employee is paid for the performance of each teaching contact hour at an hourly rate calculated in accordance with tables found at article 26.04, see article 26.02A. The teaching contact hourly rate is inclusive of vacation (article 26.02B) and also includes necessary ancillary work related to the course being taught, see Fanshawe College and OPSEU (Partial-Load Contracts), 2018 CarswellOnt 7012 (Parmar). 6. On May 24, 2017, College Council approved the 2018-2019 Academic Calendar, which included the scheduling of a Fall Reading Break (one scheduled study break day also referred to as a work-study day) to be aligned with Thanksgiving. Present at the May 24, 2017 College Council were four OPSEU representatives (three stewards and one Local Vice-President) who sat on the College Council at the time. None of the OPSEU representatives sat on College Council in any official Union capacity. Rather, the OPSEU representatives were present at the College Council in their roles as faculty members. The same four OPSEU representatives were present at the September 27, 2017 College Council meeting when the May 24, 2017 College Council Minutes were approved. 7. The 2018-2019 Academic Calendar was posted sometime after September 27, 2017. OPSEU characterizes the failure to hold classes on October 5, 2018 as a “cancellation” of classes. The College disagrees, indicating that no classes were scheduled on that date in the Academic Calendar. I am of the view that the College’s characterization of these undisputed facts is more accurate. 8. On September 5, 2018 the College sent out an email with the subject line indicating “Reminder: Study Break day October 5 – No classes.” The relevant portion of the email states: This year, the College has introduced a Fall study break day on Friday, October 5 (of the Thanksgiving long weekend). If you have a Friday class this semester and weren’t aware of this day off, please adjust your Course Plan and/or detailed class schedule to accommodate. 9. On September 6, 2018 the OPSEU Local President raised the issue of whether partial- load employees, who would normally work on October 5, 2018 if classes were scheduled, would be paid for the work-study day. On September 13, 2018 the College responded by indicating that the partial-load employees who would normally teach on the work-study day would not be paid. 10. In the grievance, OPSEU alleges that the College violated articles 26, 1 and 10 of the Collective Agreement by reducing the amount of class time for a certain number of unknown partial-load employees, while still requiring these partial-load employees to perform all the ancillary duties associated with the class syllabus. OPSEU characterizes this loss of teaching contact hours as the College requiring partial-load employees to provide ancillary work associated with the cancelled teaching contact hours for no remuneration. 11. OPSEU takes the position that the College has exercised their management rights, as set out in article 6, in a manner that is inconsistent with the terms of the Collective Agreement requiring payment to partial-load employees for work performed. OPSEU also takes the position that the College violated article 1 when they cancelled the classes on October 5, 2018 without consultation. 12. OPSEU seeks a declaration, Union dues (article 10) and compensation for all affected partial-load employees. 13. The College takes the position that no classes were cancelled. The October 5, 2018 work-study day was scheduled well in advance and known to Union representatives, who raised no concern at the College Council. The College points out that the Academic Calendar contains a number of days when no classes are scheduled, including Orientation Day and public holidays. 14. The College argues that payment to partial-load employees under the Collective Agreement is found in article 26 and is based on teaching contact hours. The College asserts that they complied with their obligations to pay all partial-load employees based on their teaching contact hours. 15. The College maintains that the grievance is not a proper Union grievance and should not have been processed under article 32.09 of the Collective Agreement. The College points out that the remedies being sought by OPSEU are clearly related to individual or group claims, which ought to have been brought as individual grievances or a group grievance (article 32.08). The College relies on the language in 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. 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 the Grievance meeting stage of the Grievance Procedure detailed in 32.02. 16. The College argues that the language in article 32.09 specifically limits the circumstances in which OPSEU may file a Union grievance. The College submits that OPSEU has not established an unreasonable standard or patent violation of the Collective Agreement. The College asserts that the facts surrounding the grievance are related to specific individuals affected in one semester by the scheduling of one work-study day. These undisputed facts do not meet the test required to permit OPSEU to file a Union grievance for what is essentially an individual or group claim. 17. OPSEU concedes that an individual employee or a group grievance could have been filed. However, OPSEU takes the position that they have met the criteria necessary for pursuing a Union grievance. OPSEU points out that no employee has grieved the issue. According to OPSEU the requirement to provide the ancillary work required to teach the course while cancelling a day of classes or reducing teaching contact hours is an unreasonable standard that patently violates the Collective Agreement. It is OPSEU’s view that the College is, in effect, requiring certain partial-load employees to provide ancillary work without any pay. The adverse effect on these certain partial-load employees is to reduce their pay and limit their seniority. 18. The following awards were referred to by counsel during their submissions: Fanshawe College and Ontario Public Service Employees Union (2015-0110-0013), 2016 CarswellOnt 6933 (Stout); Fanshawe College and Ontario Public Service Employees Union (01C054) 2002 CarswellOnt 9912 (Knopf); Fanshawe College and Ontario Public Service Employees Union (Partial-Load Contracts) 2016 CarswellOnt 12732 (Parmar); St. Lawrence College and OPSEU 2011 CarswellOnt 13554 (Starkman); St. Lawrence College and Ontario Public Service Employees Union, Local 417, 2012 Carswell 17162 (Leighton); Canadore College and OPSEU, Local 657, 2014 CarswellOnt 1836 (Leighton); Seneca College of Applied Arts and Technology and OPSEU, Local 560 (Clinical Supervisors in Nursing Programs), 2015 CarswellOnt 7519 (Schmidt); 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. Decision 19. The issue to be determined is whether or not the grievance before me is a proper Union grievance filed pursuant to article 39.02. Article 39.02 has been previously interpreted and there is extensive jurisprudence that provides guidance as to the limitations placed on the Union’s right to file a grievance. Arbitrator Schmidt, in her Seneca College, supra, award, succinctly summarizes the test to be met as follows: 13. The article at issue is unique. It very clearly places strict and defined limits on the circumstances that the Union may grieve. The language precludes the Union from grieving any matter that an employee would be personally entitled to grieve unless the strict and defined conditions set out in the article are met. The Union is only able to by- pass the regular personal or group grievance if it is able to establish all three criteria. The Union’s failure to meet any one of them will render the grievance inarbitrable (see George Brown College and OPSEU (Devlin) supra at p. 5.) 14. First, the Union must establish that an employee has not grieved an “unreasonable standard.” Secondly, the Union must establish that that the “unreasonable standard” is “patently in violation of the collective agreement.” Finally, the Union must establish that that the “unreasonable standard” affects the rights of employees. 20. The Union concedes that one or more employees would be personally entitled to file a grievance with respect to the College’s decision not to schedule classes on October 5, 2018. In fact, the Union seeks specific relief for all partial-load employees who were, in their view, adversely affected by the College’s decision. 21. The dispute between these parties’ really centres on the issue of whether the Union can establish that no employee has grieved an ”unreasonable standard that is patently in violation” of the Collective Agreement. 22. In St. Lawrence College and OPSEU, supra, Arbitrator Starkman cites with approval an earlier decision in Sir Sanford Fleming College and OPSEU, unreported, April 25, 1988 (G. Brent), which indicates as follows: In our view, in order for a violation of the collective agreement to be called “patent” it must be evident on its face that there has been a violation of the agreement. That is, it is not sufficient that the Union can show that arguably it has a case which could be a violation of the collective agreement dependant on which of the two reasonably possible interpretations are accepted, but rather that there has been a clear, evident and plain violation of the collective agreement. 23. The challenged standard in this case, is the Colleges’ decision not to schedule classes on October 5, 2018. Instead of scheduling classes, the College decided to schedule a Fall Reading Break or work-study day on the Friday prior to Thanksgiving. The decision was made after discussion at College Council in May 2017. Union representatives were present for those discussions and at the September 2017 meeting when the Minutes of the May College Council meeting were approved. I acknowledge that the Union representatives were not acting in any Union capacity. However, they were clearly made aware of the discussions and the decision to schedule a work-study day instead of classes. The Union raised no objection with the scheduling of a work-study day until September 2018. 24. In my view, the College has not acted unreasonably in these circumstances. They have exercised their management right to schedule classes after they consulted with College Council. Furthermore, the College’s decision not to schedule classes is not patently in violation of the Collective Agreement. 25. Article 26 clearly provides for partial-load employees to be paid based on teaching contact hours at an hourly rate. As stated by Arbitrator Parmar in Fanshawe College of Applied Arts and Technology and OPSEU (Partial-Load Contracts), supra, the parties have chosen a compensation method that does not differentiate between the specific tasks performed by each teacher, which is a lengthy and varied list given the various forms, structures, and content of courses. Arbitrators Parmar’s comments made later in her award are germane to the issue before me, where she states: …The parties chose a particular method of payment for partial-load employees teaching a course, and it is not task based or even week based. Just because there is no TCH in a particular week of the employment contract during which it is understood the employee is expected to be performing work, it does not mean the employee is not being paid for that work. Rather, as prescribed by Article 26.02A, they are paid on the basis of assigned TCH’s, for all the work flowing from those TCHs…. 26. In the matter before me, OPSEU seeks payment for work that they assert was performed during a week when no classes were scheduled on October 5, 2018. I agree with Arbitrator Parmar that just because there is no teaching contact hours in a particular week, it does not mean that a partial-load employee is not being paid for the ancillary work. Certainly, there may be an argument made that reducing teacher contact hours has the effect of reducing the amount paid to partial-load employees for ancillary work. However, the reduction of teaching contact hours resulting from the scheduling of a work-study day does not constitute a clear, evident and plain violation of the Collective Agreement. 27. I note that the matter before me is similar to the claims for partial-load employees brought before a board of arbitration chaired by Arbitrator Starkman in St. Lawrence College and OPSEU, supra, award and a board of arbitration chaired by Arbitrator Leighton in St. Lawrence College and OPSEU, Local 417, supra, award. In both cases the majority found that at best the Union had an arguable case, but the Union’s alleged violation of the Collective Agreement was not plain on its face, obvious or “crystal clear”. I share their viewpoint and come to the same conclusion in this matter before me. 28. I acknowledge the awards provided to me by the Union, which come to a different conclusion, including one of my own awards between these same two parties. However, these other cases are clearly distinguishable based on their facts. In particular, my Fanshawe College and OPSEU, supra, award, Arbitrator Knopf’s Fanshawe College and OPSEU, supra, award and Arbitrator O’Neil’s award in Humber College and OPSEU, supra, all relate to compensation of certain full-time bargaining unit members and an allegation that the College was directly dealing with such full-time bargaining unit members contrary to the Union recognition clause found in article 1 of the Collective Agreement. 29. As stated earlier, partial-load employees and full-time employees are not compensated in the same manner under the Collective Agreement. Full-time employees are paid a salary, while partial-load employees are not paid a salary. Instead, partial-load employees are compensated based on teaching contact hours, which includes ancillary duties performed outside the teaching contact hours. 30. In addition, there are no facts asserted that would lead me to conclude that the College was directly dealing with partial-load employees contrary to the Collective Agreement. I acknowledge that the Union cites article 1 in the grievance. However, they have asserted no facts nor made any allegation of direct dealing between the College and partial-load employees in this matter. The undisputed facts are that the decision to schedule a work- study day was made after discussions at College Council, which included faculty who were Union representatives. Furthermore, the only claim made by the Union for relief in this matter is for Union dues (article 10), which are incidental to what would properly be characterized as individual claims for a remedy, see Canadore College and OPSEU, supra, at paragraph 21. 31. The only award relied upon by the Union that addresses a similar issue is the preliminary award of Arbitrator Parmar in Fanshawe and OPSEU (Partial-Load Contracts), supra. In this regard, I agree with the College’s submission that Arbitrator Parmar’s preliminary award must be read in light of her subsequent award on the merits, wherein she dismissed the grievance. The Union may well have an argument that partial-load employees are being required to provide work without proper renumeration. However, an arguable violation does not meet the threshold test required in order for a Union grievance to proceed over an issue that could have been grieved by an individual or a group. 32. Accordingly, after carefully considering the submissions of the parties, I find that the grievance before me is not a proper Union grievance and therefore it must be dismissed. Dated at Toronto this 30th day of September 2019. John Stout- Arbitrator