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HomeMy WebLinkAboutUnion 21-10-06 IN THE MATTER OF AN ARBITRATION UNDER THE COLLECTIVE AGREEMENT AND THE ONTARIO LABOUR RELATIONS ACT BETWEEN: ALGONQUIN COLLEGE (“the Employer”) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 415 (“the Union”) UNION GRIEVANCE RE COVID PREP WEEK 2020-0415-0004 AWARD Arbitrator: Barry Stephens Union Counsel: Erin Moores, Goldblatt Partners Employer Counsel: Jock Climie, Emond Harnden Heard on March 4, 2021 and June 29, 2021 By Videoconference Decision Issued October 4, 2021 AWARD [1] This grievance involves a claim that the employer breached the collective agreement by directing the academic staff to switch from in-person to online teaching for the last six weeks of the Winter 2020 term. The employer’s decision followed the first government-mandated lockdown imposed in March 2020 in response to the global COVID-19 pandemic. This decision deals with a preliminary objection raised by the employer that the grievance was improperly filed as a union grievance under Article 32.09 of the collective agreement. Facts [2] The employer argued that the terms of Article 32.09 required that this grievance raised issues about which individual employees were personally entitled to grieve under Article 11, and the exceptions in Article 32.09 do not apply. Article 32.09 reads as follows: 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. [Emphasis added] [3] When the pandemic broke in Ontario in March 2020, the employer made a quick decision about how it was going to provide education to students, given that doing so in person was not an option. The employer was faced with the requirement to close all labs and discontinue all classes on campus. This meant that unless the employer could find a 2 way to finish out the term, it would be lost. The employer decided that professors would be relieved of all regular duties during the week of March 15 to 20. They were directed to spend that week, up to 44 hours maximum permitted under the collective agreement, preparing for the remote delivery of classes for the remainder of the semester. Professors were not directed to create new material but to adapt the remaining class material to online learning for the final weeks of the semester. The employer’s position was that this represented a change in modality of teaching, and that a change in modality did not require a change to the Standard Workload Form (SWF). Employer Submissions [4] The employer emphasized that professors were not being asked to convert their courses to online courses but rather to take the curriculum material that had been prepared for Winter 2020 and to plan to deliver the rest of the semester’s material by remote means, typically by online videoconferencing. In other words, the employer asserted, to present the same material using the same structure but in a virtual room, not in the same room. The employer labelled this as a change to modality, which was distinguishable from full-scale conversion to an online course. For many professors, the employer argued, the change in modality would not have presented a problem, since it was a matter of presenting existing lecture material using video conferencing. For example, instead of using a white board or other classroom method to present ideas, the instructor would do so using the screen-sharing feature in a videoconference. The 3 employer conceded that, while there would have been some for whom the change would have been quite straight forward, for some it might have been more challenging. The issue thus became, if there were such professors, what was their remedy under the collective agreement and did their rights impact the ability of the union to file a policy grievance? [5] Article 11 contains a comprehensive code regarding the workload assigned to professors. The Article features its own arbitration system, designed to resolve workload disputes quickly. The employer submitted that the union’s case was, in essence, that the employer had somehow abrogated the right of employees to file Article 11 Workload Resolution complaints by the memo of March 15, from Dianne McCutcheon, the employer’s Vice President of Human Resources, to Bargaining Unit President Annette Bouzi. The memo reads as follows: March 15, 2020 Annette Bouzi Local President OPSEU Local 415 Dear Annette, In keeping with the latest Public Health Agencies’ enhanced measures announced today meant to flatten the COVID-19 transmission curve, the College has announced that all face-to-face classes and labs will be suspended for the week of March 16-20, 2020. This measure is intended to help protect and care for our learners, employees and the community, and see to the continuity of education for our learners. 4 In the best interest of our learners, this week will allow preparation to be undertaken with the goal of delivering course content through non-traditional channels (e.g. online learning). All faculty will be expected to work their regular hours, however they will be assigned to non-teaching activities to redevelop the content and prepare for its delivery in alternate mode for the remainder of the winter term. As such, the College will not be issuing updated SWFs to faculty at this time. Thank you for your patience and assistance while we navigate this difficult time. Kind regards, Diane McCutcheon Vice President, Human Resources [6] Given the circumstances, the employer argued, it was not practical or reasonable to have expected the employer reopen all 550 SWFs and to go through the process of meeting with each professor in order to discuss the changes required by the pandemic. Regardless, there was nothing in the letter that legally prevented any bargaining unit member from exercising their rights under Article 11. As the employer pointed out, all grievances start with a unilateral employer action that an employee or the union considers to be a breach of the collective agreement. The fact that the employer in this instance described its decision in a memo to the union did not present any legal barriers to the normal dispute resolution mechanisms under Article 11. [7] The employer observed that it was theoretically possible that an individual professor could have demonstrated that the number of hours allotted for the transition to online delivery did not reflect the amount of work required. It was a matter of common 5 sense that all professors would have been affected differently, and each such case would have had to have been considered individually. That was precisely what the dispute process under Article 11 is designed to do. Any employee who did not agree with their workload had the option to grieve under the Article 11. Employer counsel stated that, to their credit, not one professor had filed such a complaint. Their reasons for not grieving were likely related to the normal willingness of decent people to do their part to help out in an emergency, the employer submitted, but the McCutcheon letter could not and did not in any way prevent a professor who felt unfairly treated from initiating a complaint. The employer also pointed out that the union’s proposed remedy was an order forcing the employer to engage in a review of all SWFs from Winter 2020. If the employer was required to do so, it would be required to seek reimbursement from professors who did not need extra time to prepare to move to online learning. The employer added that it had no interest in recouping such losses but that it showed the absurdity of the union’s position. [8] The employer argued that the union’s theories of how other aspects of the collective agreement were engaged were not sufficient to allow for a Union grievance. There was no breach of Article 6, the Management Rights provision, because the employer’s response to an unprecedented global pandemic was not arbitrary, discriminatory or in bad faith. Quick action was required to protect everyone associated with the College. In addition, there was no breach of Article 7 with respect to the 6 Union/College Committee (UCC). The UCC had not been active at the College because the previous union executives had not considered the UCC necessary. The new union executive was trying to set up a UCC, but the process it was not operational prior to the emergency generated by the pandemic. Moreover, despite the lack of a UCC, the employer asserted that the parties had been in “constant discussion” about the impact of the pandemic on the College. The employer provided notes from daily meetings held with the local union president at which a wide variety of labour management issues were discussed, including the impact of the pandemic lockdown. The employer argued that these joint discussions undercut any suggestion that the employer had engaged in direct negotiations with members of the bargaining unit. The employer added that, regardless, the unusual nature of Article 11 included the requirement that the employer representatives engage in individual negotiations with a professor about their workload and, if an agreement is not reached, the professor has the right to file a complaint. The employer did not engage in any one-on-one discussions with professors about the pandemic but dealt directly with the union. There were no grounds for suggesting that the employer was trying to undermine the union. The employer had been involved in direct discussions with the union about how to deal with the pandemic and ultimately sent the union documentation explaining its decision. [9] With respect to Article 32, the employer submitted that the union had the onus to demonstrate that all the elements listed in the article were satisfied, but it had failed 7 to do so and the threshold test had not been met to allow for individual grievances to be heard as a union grievance. The issues raised by the grievance were all exclusively within the jurisdiction of the dispute resolution process under Article 11. Thus, the union was attempting to grieve a matter that could be grieved by an individual professor. The union could not demonstrate that employees had failed to grieve an unreasonable standard, given that the employer was only taking the necessary steps to respond to the global pandemic. The employer also asserted the decision to move to online instruction was not a “patent violation” of the collective agreement, given that a change in modality of teaching, in and of itself, was not something that triggered the requirement for a new SWF. With respect to the last element of Article 32.09, the requirement that the grieved issue had to “adversely” affect the right of an employee, the employer conceded that this was possible, but would require evidence with respect to the circumstances of individual professors. [10] The employer relied on the decision in Sheridan for the proposition that the WRA had wide jurisdiction to address all issues that spring from Article 11, and that the collective agreement granted exclusive jurisdiction to the WRA to deal with such disputes. The expedited nature of the Article 11 process was necessary given that the parties had a clear interest in ensuring that workload assignment issues were dealt with while they are in progress, not months or years later as may be the case with the normal arbitration process. No professors exercised their right to complaint under Article 11. The employer 8 asserted that, if 550 professors preferred to prioritize the needs of their students in the face of an unprecedented global emergency rather than claim more hours, that was a choice that was protected by Article 11. The employer also relied on three WRA decisions for the proposition that a change of the mode of delivery to remote learning is not a change that should result in a revised SWF unless it triggered a major revision to the course. [11] The employer relied on the following authorities: St. Lawrence College, [unreported, Knopf, 12 May 2004]; Sheridan College, [unreported, Leighton, 14 December 2016]; Humber College, [unreported, Starkman, 22 July 2015]; Humber College, [unreported, H.D. Brown, 13 August 2013]; Fanshawe College, [unreported, Knopf, 10 December 2007]; St. Lawrence College, [unreported WRA decision, Snow, 4 September 2020]; Algonquin College, [unreported WRA decision, Flaherty, 13 July 2020]; George Brown College, [unreported WRA decision, Jesin, 25 May 2020.] Union Submissions [12] The union argued that the employer’s objections to the grievance revolved around issues related to particulars and to remedies, neither of which could support a preliminary objection. 9 [13] The union alleged that the employer had issued a memo to the union advising that the SWF’s would not be updated. Although there was no question that individual issues should be processed through the Article 11 process, in this case, the employer, without any clear insight as to ultimate impact of the pandemic, had decided it was not going to abide by its obligations under the collective agreement, including Article 11. The employer made this decision without seeking an understanding with the union. The employer declared that it would not be participating in the Article 11 process, effectively rendering meaningless the potential for any individual bargaining unit member to file a WRA complaint. Thus, members of the bargaining unit were deprived of any meaningful remedy as a result of the employer’s unilateral decision, and the right to complain with respect to the change in workload was rendered meaningless. [14] The union asserted that it was not seeking a blanket solution for the issues created by the employer’s breach of the collective agreement. Rather, the union was seeking a declaration that the employer’s statement to the union was itself a breach of the collective agreement in that it ignored the union’s role in the workload process and ignored the obligation under Article 11 that mandated a review and adjustment of all SWF’s as a result of the extra work required by the change to distance learning. The employer argued that it was not practical for the administrators to review all 550 SWF’s because those administrators were working extra hours in order to respond to the pandemic but this ignored the fact that professors were similarly overwhelmed with the 10 new duties that were added to their established workloads. In essence, the employer was suggesting that the union was ignoring the needs of students and other staff but that was an unfair characterization of the union’s determination to ensure that the employer respected the collective agreement. [15] The union disagreed with the employer’s assertion that there had only been a change in “modality.” It was obvious that the employer pre-empted the right of employees to pursue complaints under Article 11. That was a much larger issue than any individual issue an employee may have had, and that issue would not disappear even if bargaining unit members had their right to Article 11 recognized. The jurisprudence between the parties makes it clear that the mere fact that a dispute contains an element of Article 11 does not automatically render the matter as inarbitrable as a union grievance. So long as the union’s grievance met the criteria of Article 32.09 it could be properly filed and processed even if the matter involved aspects of Article 11. [16] The union asserted that the employer’s actions undermined the recognition and role of the bargaining agent, in that the employer ignored the union’s role completely by announcing that they were going to ignore the collective agreement and mete out assignments to employees that exceeded the workload limits imposed by Article 11. Rather than engage with their collective agreement obligations, the employer made a blanket decision that rendered the workload resolutions provisions of Article 11 meaningless. The union asserted that if the employer’s decision did not go to the heart 11 of the union’s role as the bargaining agent than it would be difficult to see what employer transgression would. [17] The union acknowledged that Article 32.09 sets out three conditions that must be met before the union could acquire the right to file a grievance that would otherwise be an individual grievance. The first condition, the individual employee must have failed to grieve an employer action that constituted an “unreasonable standard.” The union asserted that this language meant that if there is any part of the grievance that could not have been addressed by an individual grievance process, in other words if there was anything “left over” after the individual issues were circumscribed, the union had the right to grieve the matter. The union argued that the fact that there were Article 11 issues at play was not sufficient to bar a policy grievance. In this case, the union asserted, Article 11 complaints would not have covered the fact that the employer had declared it was no longer going to honour any of the provisions in Article 11. Moreover, the union submitted that the reasoning in Fanshawe College (Stout) requires that, in a preliminary motion, the arbitrator is bound to accept that the union can prove the assertions it makes. [18] The union submitted that the main issue raised by the grievance was the recognition of the role of the union as the bargaining agent for all members of the bargaining unit. The employer ignored the union’s role completely and imposed a blanket solution on all professors without any consultation with the union and did so in the way 12 that rendered Article 11 protections meaningless. The employer made it clear that the Article 11 process was not going to happen, and it was pointless to file a grievance. The employer’s refusal to address workload protections constituted a sweeping denial of the rights of all bargaining unit members. The union argued that the employer’s breach went to the very heart of the existence of the union, and it was difficult to imagine an action that more clearly engaged the rights of the entire bargaining unit. [19] The union relied on the following authorities: Fanshawe College, [2016] CarswellOnt 6933 (Stout); Humber College, [unreported, O’Neil, 13 October 2015]; Fanshawe College, [2002] CarswellOnt 9912 (Knopf); Seneca College, [unreported, Devlin, 5 June 1998]; Canadore College, [unreported, H.D. Brown, 20 February 1990]; Fanshawe College, [unreported, Burkett, 29 March 1989]. Conclusions and Decision Requirements of Article 32.09 [20] Article 32.09 sets out the scope of union policy grievances under the collective agreement. Valid policy grievances are defined by two primary elements. First, the grievance must be, “…based on a difference directly with the College.” Second, the grievance cannot include any matter upon which an employee would be entitled to grieve personally. However, the language allows for an exception to the second consideration. 13 A union grievance may arise from matters that could have been grieved by an employee personally if each of the four following conditions are met: 1. the affected employee or employees failed to grieve; 2. the employer’s action was “patently in violation of the collective agreement”; 3. the employer’s action constituted an “unreasonable standard”; and 4. the standard “adversely affect[ed]” the rights of employees. [21] The comments of Arbitrator Stout in Fanshawe (2016), relying on the findings of Arbitrator O’Neil in Humber College, provide a useful starting point. Article 32.09 recognizes that both individual and policy grievances may be based on the same set of facts given that both types of grievances give rise to separate and identifiable interests under the collective agreement. A union grievance is referred to in Article 32.09 as a ‘direct difference’, or, as Arbitrator Knopf put it in Fanshawe (2007), those “higher matters” that affect the rights of employees generally. The fundamental principle behind Article 32.09 is that all issues that can be addressed as individual grievances will be processed as such, even those that might include an element of “direct difference.” However, if the employee does not grieve, the collective agreement leaves open the possibility that the union can pursue a proper grievance based on the same events that could have been personally grieved. [22] The submissions of the parties on the preliminary require that I consider each of the factors listed above. However, it is not necessary to determine the final application of Article 32.09 on the preliminary motion. My task at this stage is to determine whether 14 it can be stated, without the need for full evidence, that the proposed grievance could not fit within the Article 32.09 exception. Although I have decided to dismiss the preliminary motion, the parties have the right to revisit Article 32.09 in final submissions after all evidence has been properly entered. 1. Failure to Grieve [23] There is agreement between the parties that no employee appears to have filed an Article 11 complaint or any other proper grievance with respect to the employer’s alleged breach(es). Thus, the first requirement of the exception seems to have been met. 2. “Patent Violation” [24] In my view, the employer was likely wrong that their actions did not breach Article 11. For example, Article 11.02 A 2 lists what the SWF must contain, and it is a comprehensive list related to workload: “The SWF shall include all details of the total workload including teaching contact hours, accumulated contact days, accumulated teaching contact hours, number of sections, type and number of preparations, type of evaluation/feedback required by the curriculum, class size, attributed hours, contact days, language of instruction and complementary functions.” Article 11.02 A 1 (a) states that the employer will not change an employee’s SWF without “prior consultation with the teacher.” For the transition week at least, there can be little doubt that almost all of the workload factors were altered for at least some professors. Teaching contact hours were eliminated for them and replaced with a general direction 15 to spend 44 hours that week making the necessary preparations to deliver the remainder of course material for the semester online starting the following week. Article 11 would appear to require prior consultation and a revised SWF for changes of this nature. [25] The jurisprudence indicates that the word “patent”, as used in Article 32.09, means clear and unquestionable, in the sense of not being subject to two or more relatively equal interpretations. The cases relied upon by the employer in this regard (those of Arbitrators Jesin, Snow and Flaherty) deal with the issue of whether moving to online teaching constituted a “major revision.” That is a narrower issue, and those cases do not address the question of whether a sudden and unscheduled move to online teaching, including an unscheduled week of no teaching contact hours, triggers other requirements under Article 11. My conclusion is that the potential breaches of Article 11 were sufficiently obvious as to be “patent” and to satisfy the requirements of Article 32.09. 3. “Unreasonable Standard” [26] The third element in the exception is the question of an “unreasonable standard.” The collective agreement does not define this phrase. While the concept of reasonableness is very common in labour arbitration, the word “standard” is not a word that is used as a ‘term of art.’ The jurisprudence suggests that the word “standard” should 16 be given its plain and ordinary meaning in everyday speech i.e., a way of doing or deciding something. [27] The union argued that the “unreasonable standard” in this case was the employer’s failure to adhere to the requirements of Article 11 in the process of the move to online teaching, in addition to the other allegations of seeking to undermine the union’s role as the bargaining agent by engaging in direct negotiations with employees. [28] It is appropriate to assume that an “unreasonable standard” is a distinct consideration from the requirement of a “patent violation” of the collective agreement. In Fanshawe (2007), Arbitrator Knopf observed that it is difficult to see how an employer decision could be found to be a “patent violation” of the collective agreement without also being an “unreasonable standard.” That is a fair observation, and one that occurred to me as well as I reviewed the submissions of the parties. However, Article 32.09 is not an article that deals with the right of employees to grieve, it is an article that sets out relatively strict conditions for filing a union grievance. In my view, the extreme pressures placed on the parties by the unusual circumstances of the global pandemic suggest how the concept of an “unreasonable standard” could be a different consideration from a “patent violation.” External circumstances beyond the control of the parties could theoretically create conditions in which strict adherence to the collective agreement might lead to greater harm than good. For example, Article 11 arguably requires six 17 weeks’ notice of a SWF, as well as two weeks’ notice of a change to timetable. In addition, professors are entitled to be consulted about changes to their SWFs, a process which would require considerable time to schedule, and for the employer to consider and respond to individual input. If the employer was required to fully implement Article 11, in a crisis, like after a fire or flood or during a pandemic, it might necessitate the kind of delay that would require abandonment and loss of the semester. That would be damaging for members of the bargaining unit, as well as for students and the College. If, in such extreme circumstances, the employer were to ask the union to waive some or all of the requirements of Article 11 in order to respond to the crisis in a way that is beneficial to everyone, and the union refused, the phrase “unreasonable standard” might take on some significance. [29] An assessment of whether the employer’s way of transitioning to online learning was an “unreasonable standard” must be made in the full context of the employer’s decision. An “unreasonable standard” must, self-evidently, manifest a degree of unreasonableness. In this instance, the employer was following the directives of government and public health officials about how to respond to the pandemic. It was taking steps to protect the lives of everyone associated with the College, including professors. It is difficult to imagine a more significant or compelling “standard” than the protection of human life. The employer’s main options were to either lay off all staff, cancel classes and abandon the teaching term with several weeks to go, or to make a 18 quick pivot to a different delivery method for the rest of the semester. The question I have posed myself is whether there were other reasonable actions the employer should have taken; or was moving to online classes without delay not unreasonable in the circumstances. [30] Even if one assumes that full, technical implementation would have meant the semester would certainly have been lost, in my view there was at least one other more reasonable option, or at least intermediary step the employer could have taken. The employer could have asked the union to waive the requirements of Article 11 in order to assist with the process of ensuring that everyone was kept safe and that the semester was preserved. The union might have agreed and there would have been an understanding that avoided this grievance. A refusal by the union would have meant the employer would have been in a better position to make submissions on the meaning of “unreasonable standards.” Regardless of how one reads “unreasonable standards”, however, it would have been more reasonable for the employer to consult the union and seek necessary waivers to Article 11 before taking the actions it did in this case. As far as I have been advised, that did not happen. I have concluded that the employer’s action likely constituted an “unreasonable standard”, and the union fits within this element of the exception for the purposes of the preliminary. 19 4. Adverse Impact [31] The final criteria to be considered is whether the employer’s decision had an adverse impact on employees. [32] The Employer addressed the Covid crisis in a way that preserved the employment and continued the salary of bargaining unit members at a time when large numbers of employers in Ontario were forced to lay off employees and businesses were shutting their doors, many of them, it turned out, permanently. The Winter 2020 semester was saved, and the income of members of the bargaining unit was continued. In these circumstances, it is difficult to say that the members of the bargaining unit were “adversely affected.” They were able to count themselves among the more privileged Ontario citizens who could immediately reorganize their lives in such a way as to continue their work from home with no break in income. In the grand scheme of things, they were very fortunate, and the manner in which they responded to the challenges imposed on them perhaps indicates this fact was not lost on them. [33] Although, in the circumstances, it is difficult to say that the members of the bargaining unit as a whole were “adversely affected”, the question remains whether the employer’s breach might have had an adverse impact on individual employees. Whether we look at the week of March 16, or the remaining weeks of the semester, it appears that 20 the impact on employees would likely have fallen into three broad categories. First, there were the employees for whom the employer’s decision was neutral, such as professors who were already teaching all of their courses online. These professors were simply advised to carry on, and one can assume that the employer’s action had no impact on their workload. The second category would be those professors, and there were likely some, for whom the change to online teaching actually led to a reduced workload. If I ultimately were to agree with the union’s main remedy in this case and order the employer to reopen and review all SWFs from Winter 2020 period, these professors will be identified as having received overpayments, and the employer could have the right to pursue repayment of unearned salary from them. The third category are those professors for whom the employer’s change caused an increase in workload that was not accounted for under the collective agreement process. The first two categories would have suffered no “adverse impact” as a result of the employer’s actions. The third category would have, because it is arguable that they would have worked more hours than they were paid for. At this stage it is fair to say that it is more likely than not that this was true for at least some professors in the bargaining unit, and those professors would have been “adversely affected.” On a plain and technical reading of Article 32.09, therefore, the union has demonstrated that there was likely an “adverse impact” on some professors as a result of the employer’s actions. 21 [34] As a result, I have concluded for the purposes of the preliminary objection that the union falls within the exception outlined in Article 32.09. Summary [35] In summary, I have concluded that the union appears to fit within the exception in Article 32.09, and the preliminary objection is not successful. As mentioned above, this finding does not restrict the right of either party to call evidence and make submissions on the Article 32.09 issue on the merits. [36] The hearing will continue on dates arranged with the parties. ________________________ Barry Stephens, Arbitrator October 06, 2021