HomeMy WebLinkAboutUnion 22-04-19IN THE MATTER OF AN ARBITRATION
BETWEEN
NIAGARA COLLEGE
(“the Employer”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 242
(“the Union”)
Before:
Larry Steinberg, Sole Arbitrator
Appearances
For the Employer:
Jessica Toldo, Counsel
Robert Burwash, Human Resources Director
Jodi Fitzgerald, Labour Relations Manager
Vicki Turchi, Human Resources Consultant
Vincent Shaikh, Dean, Media, Trades and Technology
For the Union:
Benjamin Piper, Counsel
Terry Poirier, Workload Monitoring Group Co-Chair
Martin Devitt, Past President
Hearing held by Zoom on March 21, 2022
Overview
[1] This award is in respect of a preliminary objection of the employer that I do not
have the jurisdiction to hear and determine this matter as a union grievance since it is in
respect of workload issues. This is issue has been a fertile ground of dispute between the
parties. This same preliminary objection has been made many times over the years. The
cases are difficult to reconcile.
[2] On March 5, 2021 the union filed a grievance alleging that the Dean, Media, Trades
and Technology violated Articles 1 (Recognition), 6 (Management Functions) and 11
(Workload) when he assigned “an illegal SWF and patently violated the CA through the
SWF revision process”. The remedies sought were extensive. In addition to the usual
declaration, cease and desist order and compensation for the alleged illegal overtime,
there is a request for an automatic audit of all SWFs beyond 43.99 total workload hours
be implemented at the end of the first 10 days of each term to prevent illegal overtime,
improper overtime or the assignment of overtime without the agreement of the teacher .
[3] The employer responded to the grievance on April 1, 2021 . In that response the
employer, among other things, put the union on notice that if the grievance proceeded to
a hearing the employer would raise a preliminary objection that the grievance was
improperly filed as a union grievance contrary to Article 32.09 of the collective agreement
since individual union members could have grieved the matter. The employer further
noted that any disagreement with the SWF should have been submitted to th e process
outlined in Article 11 of the collective agreement.
[4] At the hearing of this matter the employer raised preliminary objections as it
indicated it would. The employer’s position is that I do not have jurisdictions to hear this
grievance since it does not meet the requirements of Article 32.09 of the collective
agreement for the filing of a union grievance . In addition, the employer argues that this
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type of dispute must be resolved pursuant to the provisions of Article 11 of the collective
agreement.
[5] I have carefully considered the evidence and argument of the parties and the
cases cited to me. I am of the opinion that the preliminary objection must be dismissed
and find that I do have the jurisdiction to hear this grievance.
Facts
[6] The parties argued the case on the basis of an Agreed Statement of Facts (“ASF”)
and the evidence of Terry Poirier (“Poirier”), Chief Steward of the local union and the
Workload Monitoring Group (“WMG”) Co-Chair. The ASF is as follows:
Typical term dates at Niagara College
1. The dates for the Winter 2021 term at Niagara College are from January 11, 2021 to February
26, 2021 and from March 8, 2021 to April 23, 2021.
2. Under typical practice at Niagara College, a student can withdraw from a course and receive a
full refund of their fee up to 10 business days after the start of term.
3. Due to government direction, the third wave of COVID-19 and subsequent lockdowns, Niagara
College limited the number of individuals on campus from the period of January 11 – January 22, 2021.
The first ten days of classes were taught exclusively online, with select exceptions. Most students were
not on campus attending in person classes or labs until January 25, 2021. However, most courses for the
Winter 2021 term had already been switched to exclusive online delivery. This included Prof. Sarah
Rouillier’s course, which had been planned for online delivery and was delivered entirely online.
4. As a result of the changes to on-campus courses, the last date to withdraw with a refund was
extended until February 5, 2021, which was ten days from the start of in-person classes and labs. This
extension was communicated to all Associate Deans and Deans at Niagara College, reflected on Niagara
College’s Key Dates webpage and posted on Niagara College’s website in various areas. The Key Dates
calendar was also posted on the Corporate Drive, which all employees can access. The extension was
never broadcast to all faculty and/or students by email or otherwise.
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5. A student can withdraw from a course without academic penalty on their transcript, generally
around 10 weeks after the start of term.
Prof. Sarah Rouillier
6. On October 7, 2020, Sarah Rouillier was presented with her final Standard Workload Form (SWF)
[Union Book of Documents, Tab 4]. This SWF was based on the College’s initial estimates of
registrations in Prof. Rouillier’s courses for the 2021 Winter term.
7. Prof. Rouiller was scheduled to deliver two courses: ELEC1445 and ELEC1427. In ELEC1445, she
was equally scheduled to deliver 4 labs, each for 2 hours.
8. Prof. Rouiller signed this SWF on October 9, 2021.
9. Pursuant to the Collective Agreement, all SWFs are provided to the union and the Workload
Management Group (WMG).
10. On January 28, 2021, Prof. Rouillier was presented with a revised final SWF, reflecting actual
enrolment numbers [Union Book of Documents, Tab 5]. The revised SWF increased the enrolment in
ELEC1427 from 34 to 36 students and increased the enrolment in ELEC1445 from 33 to 40 students. As a
result, enrolment in the 4 labs in ELEC1445 were increased from 8 students in 3 labs and 9 students in 1
lab, to 10 students in each of the 4 labs.
11. As noted on the January 28, 2021 SWF, the revision to Prof. Rouillier’s workload involved
removing 1 hour of one of her ELEC1445 labs, which would be co-taught by a part-time faculty. Prof.
Rouillier signed the revised SWF on January 29, 2021.
12. On March 2, 2021, Prof. Rouillier’s overtime payment was approved and processed at the
audited SWF rate.
13. The union filed a grievance on March 5, 2021 [Union Book of Documents at Tab 2].
14. The College sent a response to the grievance, dated April 1, 2021 [Union Book of Documents at
Tab 3].
Grievance of Prof. Brian Mewhiney
15. Prior to this grievance, the union had filed two union grievances dealing with the issue of the
College scheduling workload above 47 hours per week in similar circumstances, with respect to Prof.
Brian Mewhiney. Both of these grievances pertained to the same SWF. One of these grievances has
been withdrawn (Grievance 2019-0242-0050, Ref No 60/2019) and the second is scheduled to be heard
by Arbitrator Steinberg on April 28, 2022 (Grievance 2019-0242-0051, Ref No 59/2019). The College has
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raised the same preliminary objections with respect to the outstanding grievance (Grievance 2019-0242-
0051, Ref No 59/2019).
[7] Poirier testified that he was a Professor and the Chief Steward of the local union,
and since 2016, a Co-Chair of the WMG. He explained that in that latter role he regularly
reviewed the Standard Workload Forms (“SWF”) submitted by the employer to ensure
compliance with Article 11 of the collective agreement. In reviewing the SWFs he testified
that he pays particular attention to those that are close to the overtime limit of 47 hours
per week.
[8] He explained that the SWF captures the weekly hours of work of each teacher. It
is the sum of the values credited for Assigned Teaching Contact Hours/week, Preparation
Hours/week, Evaluation Feedback Hours/week, Complementary Hours (allowance)/week
and Complementary Hours (assigned)/week. He testified that overtime hours between 44
and 47 can be assigned and worked with the consent of the individual teacher. Any hours
above 47 can only be assigned and worked with the consent of the union. The teacher
cannot agree to such a SWF.
[9] He testified that the issue that gave rise to the grievance concerned the S WF of
Professor Sarah Rouillier. He testified, as noted in the ASF at para. 6, that she received
her SWF on October 7, 2020. It indicated total hours of 46.53 or 2.53 hours of overtime.
As she was entitled to do, she agreed to work the overtime. Poirier testified that this initial
SWF is based on the employer’s estimate of the number of students in the class which is
a key measure in determining workload. He also noted that he paid particular attention to
this SWF since it was very close to the 47 hour limit that would require the union to agree
to the hours.
[10] Poirier testified about two practices in connection with auditing the SWFs. He
testified that the union had a practice of advising its members to check the continuing
accuracy of the initial SWF 10 days after the start of the term which corresponded to the
date a student could withdraw from a course with a full refund (ASF, para. 2). He referred
to this date as the enrolment audit date. The second practice he testified about was the
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time when the employer would review the situation and issue revised SWF s if there was
any change in the weekly hours. He testified that this audit was to occur in week 10
corresponding to the date a student can withdraw from a course without academic penalty
(ASF, para. 5) but that in fact the date had fluctuated and the audit has been done well
before week 10. Both audits are intended to ensure that the SWF remained accurate as
students either withdrew from or enrolled in various courses.
[11] In this case he testified that Prof. Rouillier received a revised SWF on January 28,
2021. He noted a number of issues with the SWF, including that the SWF on its face
purports to cover the period from January 11 and following. Of most significance to this
case is that there was a significant increase in the number of students from the initial SWF
(ASF, para. 10). In the normal course, without any modification of her teaching
responsibilities, this would have the effect of a workload in excess of 47 hours per week
which Poirier termed “illegal overtime” unless signed off by the union.
[12] He testified that the employer responded to the increase in class size by removing
one hour of one of her labs which would be co -taught by a part-time faculty (ASF, para.
11). This resulted in a SWF of 46.17 hours. The 2.17 hours of overtime was within the
limit that could be agreed to by the individual teacher which Prof. Rouillier did on January
29, 2021.
[13] Poirier testified that he calculated that for the period from January 11-28, 2021
when the adjustment was made to her teaching assignment, Prof. Rouillier must have
worked illegal overtime since it was on the latter date that the one hour lab was removed
from her teaching assignment.
[14] Poirier also testified about the situation involving another teacher (ASF, para. 15)
in respect of which a grievance has been filed. He testified that the issue in that case is
similar to this case in that a SWF was issued covering the period before a change in
assignment was made which had the effect of taking the teacher out of illegal overtime.
The union’s theory in that case is the same as here in claiming that for the time prior to
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the revision of the SWF and the change in assignment, the grievor was working illegal
overtime.
[15] In cross-examination Poirier confirmed that there is no definition of what he
referred to as the enrolment audit date in the collective agreement but rather multiple
audit dates. He also agreed that a teacher can request a review of their SWF at any time.
[16] Poirier also agreed that due to the fluctuation in student enrolment numbers there
was no way to know for certain whether Prof. Roullier was working illegal overtime on
January 11 or any other date and that the union couldn’t say with certainty that she
working illegal overtime prior to January 28.
[17] Poirier acknowledged that the grievance referred to in ASF para. 15 occurred two
years before the present grievance and he was not aware of any other grievances filed
on the same matter.
[18] In reply, Poirier testified that there are not typically any significant changes in the
enrolment from the beginning of term to the audit date. In addition, he testified that the
employer has the ability to track enrolments on a day-to-day basis and had never
suggested that enrolment was any lower prior to the change in teaching assignment on
September 28.
Collective Agreement
[19] 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,
counsellors and librarians, all as more particularly set out in Article 14,
Salaries, except for those listed below
…
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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,
lay off, recall and suspend or otherwise discipline employees
subject to the right to lodge a grievance in the 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.
…
Article 11
WORKLOAD
11.01 A Each teacher shall have a workload that adheres to the provisions of this
Article.
11.01 B 1 Total workload assigned and attributed by the College to a teacher shall
not exceed 44 hours in any week for up to 36 weeks in which there are
teaching contact hours for teachers in post-secondary programs and for up
to 38 weeks in which there are teaching contact hours in the case of
teachers not in post-secondary programs.
The balance of the academic year shall be reserved for complementary
functions and professional development.
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Workload factors to be considered are:
(i) teaching contact hours
(ii) attributed hours for preparation
(iii) attributed hours for evaluation and feedback
(iv) attributed hours for complementary functions
…
11.01 E 4 The number of students in a course or section shall be determined
initially by the College's planning estimates and recorded on the SWF
as provided for in 11.02.
The number of students in a course or section shall be reviewed after
the enrolment audit dates and not later than the completion of the
course or section or, at the request of the teacher, following the last
day for withdrawal of registration by the student(s), and revised
where appropriate.
The number of students in a continuous intake program, course or
section shall be reviewed every three months at the request of either
the College or the teacher and determined as the weighted average
of the number of students formally registered over the duration of the
program, course or section. The weighted average shall be
calculated by summing the number of formally registered students
in each week of the program, course or section and then dividing the
sum by the number of weeks in the duration of the program, course
or section.
…
11.01 J1 Notwithstanding the above, overtime worked by a teacher shall not
exceed one teaching contact hour in any one week or three total
workload hours in any one week and shall be voluntary
…
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11.02 A.1
(a) Prior to the establishment of a total workload for any teacher the
supervisor shall discuss the proposed workload with the teacher
and complete the SWF, attached as Appendix I, to be provided by
the College. The supervisor shall give a copy to the teacher not later
than six weeks prior to the beginning of the period covered by the
timetable excluding holidays and vacations. It is recognized that
if the SWF is subsequently revised by the College, it will not be
done without prior consultation with the teacher.
(b) The College may, where a change in circumstances requires it,
amend assignments provided to a teacher after the original
assignment, subject to the teacher's right to refer any matter to the
College Workload Monitoring Group (WMG) referred to in11.02 B
1 and if necessary, the Workload Resolution Arbitrator (WRA)
referred to in 11.02 E 1 and appointed under 11.02 F 1.
11.02 A 2 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.
11.02 A 3 Following receipt of the SWF, the teacher shall indicate in writing
on the SWF whether in agreement with the total workload. If not in
agreement the teacher and the supervisor may add such other
comments as is considered appropriate and may indicate in writing
that the workload should be reviewed by the College WMG.
11.02 A 4 In the event that the teacher is not in agreement with the total
workload and wishes it to be reviewed by the WMG, the teacher
must so indicate in writing to the supervisor within five working
days following the date of receipt of the SWF. The completed
SWF will be forwarded by the supervisor to the WMG within
three working days from date of receipt from the teacher with a
copy to be given to the teacher.
Absent such indication, the teacher shall be considered to be in
agreement with the l workload.
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…
11.02 A 6
(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 11.02F.
(
(b) Grievances arising with respect to Article 11, Workload, other than
11.01, 11.02 and11.09 shall be handled in accordance with the
grievance procedure set out in Article 32, Grievance and Arbitration
Procedures.
…
11.02 C 1 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 11.02 A 4 and/or 11.02
A 6 (a) and where possible resolving such disputes;
(iii) making recommendations to the College on the operation of
workload assignments at the College;
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(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
local negotiation in accordance with 11.02 G in order to address
particular workload needs at the College.
…
11.02 E 1 If following a review by the WMG of an individu al 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.
….
11.02 F 6 WRA shall, following the informal discussions referred to above,
issue a written award to the College and the Union Local and to
the teacher, resolving the matter. Such award shall be issued by
the WRA within ten working days of the informal discussion. The
award shall only have application to the teacher affected by the
matter and shall have no application beyond the end of a twelve-
month period from the date of the beginning of the workload
assignment.
…
ARTICLE 32
GRIEVANCE AND ARBITRATION PROCEDURES
…
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
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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
Submissions of the Parties
Employer
[20] The employer notes that both the initial and final SWF for Prof. Rouillier were less
than 47 hours and she agreed to work the overtime noted on each SWF. Therefore, even
accepting the union’s approach, there was nothing “illegal” about either SWF.
[21] The employer makes two preliminary arguments. First, the employer argues that
because the dispute is a workload issue involving a single teacher, the process under
Article 11 must be used to resolve the dispute. Second, the employer argues that all of
the conditions under Article 32.09 to permit this matter to proceed as a union grievance
are not met.
Article 11 Objection
[22] The employer reviewed the provisions of Article 11 and specifically Article 11 .02
A6 and 11.02 C1. The employer asserts that Article 11 is explicitly designed to deal in an
expeditious manner with the complaint of individual teachers regarding workload issues
and is the exclusive process available to challenge workload decisions of the employer.
(St. Lawrence College CAAT and OPSEU, Re, 2004 CarswellOnt 10393 (Knopf)). The
employer asserts that the language in Article 11 is clear that the parties intended any
workload disputes would be resolved through the procedure set out in the Article.
[23] The employer asserts that the fact that the union grieves under Articles 1 and 6 in
addition to Article 11 does not fundamentally change the essence of the grievance,
namely a dispute over the SWF of an individual teacher regarding workload. Moreover,
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the employer argues that there is no evidence that suggests that the employer sought to
undermine the union’s exclusive bargaining rights which would engage Article 1.
Article 32.09 Objection
[24] The employer also asserts that the union has not met its burden to demonstrate
that all three conditions set out in Article 32.09 are met. The employer argues that the
cases are unanimous that if an individual employee could grieve a matter then in order
for the union to file a grievance about that matter all three conditions in Article 32.09 must
be satisfied. These conditions are that the employee has not grieved an unreasonable
standard, the standard is a patent violation of the collective agreement and the standard
adversely affects the right of employees. ( Loyalist College of Applied Arts and
Technology and OPSEU, Local 420 (unreported, 2000 O'Neil) at p. 20; Durham College
and OPSEU, Local 354, 2012 CarswellOnt 13812 (Knopf) at para. 16).
[25] First, the employer argues that the union has not established that there is any
“unreasonable standard” since there are no matters of general application at issue; only
the specific situation involving Prof. Rouillier (Fanshawe College and OPSEU re
Professional Development Leave, 2007 CanLII 54661 (Knopf) at pp. 13-14 “Fanshawe
College”); Algonquin College and OPSEU, Local 415, unreported award of Arbitrator B.
Stephens dated February 22, 2022 at para. 29 ).
[26] Second, the employer asserts that there has been no patent violation of the
collective agreement. The employer submits that there must be a violation that is crystal
clear and not merely arguable. The employer notes that both SWFs in this case were
below the “illegal” limit of 47 hours per week and consent was obtained from Prof. Rouillier
to work hours above 44 in the week. Poirier in his evidence agreed that the SWFs were
not illegal. The employer notes that the union’s complaint is that at some point between
January 11 and January 28 Prof. Rouillier must have worked in excess of 47 hours based
on the class size and that there is no evidence to support the allegation that she worked
any “illegal” overtime. The employer relies on Durham College v. OPSEU, Local 354,
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2012 CarswellOnt 13812 (Knopf) at para. 18 (Durham College”); Canadore College and
OPSEU, Local 657 re Two Union Grievances, unreported decision of Arbitrator D.
Leighton dated January 29, 2014 at p.8; Humber College Institute of Technology &
Advanced Learning and OPSEU (Bargaining Unit Work), Re, 2015 CarswellOnt 11644
(Starkman) at paras. 23-25.
[27] Third, the employer argues that the union cannot demonstrate that the issue
affects the rights of employees more broadly. In the employer’s submission the issues in
this case have no broader effect than the individual employee even though the union
claims that a similar issue is the subject of another grievance (ASF at para. 15). The
employer cites George Brown College and OPSEU, unreported decision of J. Devlin
dated June 8, 1994 at pp. 6-7; Fanshawe College at p.13; Durham College at para 19).
[28] In the result, the employer argues that I do not have jurisdiction to hear the
grievance and it should be dismissed.
Union
[29] The union argues that while Prof. Rouillier’s SWF was the instigation for this
grievance, it raises much broader issues affecting the SWF revision process respecting
the timing and process for review. The union asserts that these broader issues include
determining when the employer is required to revise a SWF and to what extent the
employer can permit workload to exceed 47 hours in the week. These, the union asserts,
are issues that go well beyond the individual SWF of Prof. Rouillier and are not amenable
to be decided under the WMG/WRA process in Article 11.
Article 11 Objection
[30] The union reviewed the provisions of Article 11 and specially the provision dealing
with the WMG and WRA. The union notes that these provisions are not intended to deal
with issues of policy that arise in these cases and refers specially to Article 11.02 F6 in
this regard.
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[31] The union asserts that union grievances which allege a violation of the workload
provisions of the collective agreement have been allowed to proceed in a number of cases
where similar preliminary objections as here have been made.
[32] The union refers to a number of authorities which it says support the view that
workload matters of general application can, notwithstanding the provisions of Article 11,
be the subject of a grievance under Article 32.09 (Fanshawe College of Applied Arts and
Technology and OPSEU, unreported decision of K. Burkett dated March 29, 1989 at para.
7, application for judicial review granted but overturned on appeal [1994] O.J. No. 3697
(failure to schedule in accordance with the collective agreement and arbitral award)
(Fanshawe College of Applied A & T”); Seneca College and OPSEU, unreported decision
of J. Devlin dated June 5, 1998 (improper assignment of workloads in excess of 47 hours
per week) (“Seneca College”); Fanshawe College and OPSEU (01C054), Re, 2002
CarswellOnt 9912 (Knopf) (failure to provide credit on the SWF for non -credit classes)
(“Fanshawe College”); Fanshawe College of Applied Arts and Technology and OPSEU,
2016 CanLII 25243 (Stout) (ON LA) (not ensuring that faculty members consistently
credited with course leadership duties) and Humber College and OPSEU, Local 562,
2015 CanLII 111341 (O’Neil) ((ON LA) (not including continuing education work on the
SWF) (“Humber College”).
[33] The union argues that the issues in this case fall within the parameters of the above
case law in which, notwithstanding the provisions of Article 11, preliminary objections to
arbitrability based on Article 11 have been dismissed. The union notes that the issue as
framed in this case shares many features with the issues in the above cases.
Article 32.09 Objection
[34] The union cautions that this is a preliminary objection without a full evidentiary
record and observes that arbitrators have approached the matter on a prima facie case
basis without regard to the merits of the case (Humber College at p. 22 and Fanshawe
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College at para. 29). Approaching the matter in this way the union argues that all three
requirements in Article 32.09 have been satisfied.
[35] The union asserts that the decision of Arbitrator Devlin in Seneca College is
particularly instructive since it is factually similar to this case and urges me to adopt and
apply her analysis and reasoning on the application of the requirements of Article 32.09.
[36] The union argues that it is clear that an employee has not grieved an unreasonable
standard which the union asserts in this case is permitting Prof. Roullier’s workload to
exceed 47 hours. The union notes that 47 hours is a “hard cap” on workload hours which
cannot be exceeded without the union’s consent even for a short period of time. This also
engages the issue of when audits are conducted by the employer to ensure that the hard
cap is not exceeded.
[37] The union further argues that it would be a patent violation of the collective
agreement to permit workloads in excess of 47 hours in the absence of union consent
where the employer could by a more timely audit ensure that the provisions of the
collective agreement are respected.
[38] Finally, the union argues that the issues it has identified affect the entire bargaining
unit not just Prof. Rouillier. It asserts that ensuring compliance with the hard cap of 47
hours per week and timely audits are issues well beyond the interest of any single teacher.
The union also points to other outstanding grievances which it alleges raise the same or
similar issues as here to support its position of the broad implications of the issues.
[39] In reply to the employer’s argument, the union reviewed the case s cited by the
employer and notes that there seems to have been an evolution in arbitral thinking about
the proper approach in these cases. The union points specifically to the early awards of
Arbitrators Knopf and O’Neil relied on by the employer and their most recent awards relied
on by the union.
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[40] In the result, the union asks that the preliminary objection be dismissed and that
the matter be scheduled to be heard on the merits.
Employer Reply
[41] In reply the employer notes again that the union has failed to satisfy the conditions
in Article 32.09 for the filing of a union grievance. The employer refers to Article 11.01 E4
of the collective agreement and notes that it does not refer to any specific time frame for
conducting audits and certainly not the 10 day time frame asserted by the union.
[42] The employer also notes that the union’s attempt to build an argument on its
assertion that the issue affects other employees is based on one other situation separated
by two years from the facts of this grievance whereas in Seneca College there were 10
employees affected within one year.
Decision
[43] In addition to Article 11, the grievance refers to alleged breaches of Article 1 and
6. I do not rest this award on any alleged breach of these provisions. The essential nature
of the dispute in this case is the proper application of the provisions of Article 11. I
completely agree with the following comments of Arbitrator Devlin in Seneca College at
p.19, where the issue was whether the employer could schedule a teacher beyond 47
hours where she stated:
… the grievance properly concerns the alleged violation of Article 11.01 and the
issue of the Board’s jurisdiction to deal with this matter cannot be avoided by
reliance on the provisions of Article 6.
Article 11 Objection
[44] I am satisfied that notwithstanding the provisions of Article 11 the cases are clear
that where there is a workload issue of general concern (sometimes referred to as a
threshold issue) the union can file a union grievance under Article 32.09.
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[45] On its face Article 11 is a complete code for dealing with disputes over the workload
of individual teachers. The intention of the parties is clearly stated that such disputes are
not to be resolved through the grievance and arbitration process but through the
provisions of Article 11 which is specifically designed to deal with them. (see Article 11.02
A6 (a)(b)).
[46] Notwithstanding this, since at least the decision of Arbitrator Burkett in Fanshawe
College of Applied A & T and affirmed in many cases cited by the parties, it has been held
that not every grievance raising workload issues must be resolved by the provisions of
Article 11. If the issue engages matters that go beyond the interests of the individual
teacher or are threshold issues (for example the hard cap of 47 hours), arbitrators have
dismissed preliminary objections based on the primacy of Article 11 for the resolution of
workload issues. (see for example the Devlin award in Seneca College at p. 26). In this
regard, it has been observed that the provisions of Article 11 are ill-suited to resolve such
disputes because the award of the WRA “…shall only have application to the teacher
affected by the matter and shall have no application beyond the end of a twelve-month
period from the date of the beginning of the workload assignment.” (Article 11.02 F6)
Article 32.09 Objection
[47] As a result, the real dispute boils down to how to apply Article 32.09 on the facts
of this case. This issue has been extensively litigated by the parties. Many prior awards
were cited to me. The parties were thorough in their attempts to reconcile and distinguish
the results in the cases in support of their arguments. After having carefully read the
awards, it is clear to me that this is next to impossible.
[48] It is very tempting in these motions to stray into the merits of the grievance.
However, at this stage of the proceeding it would be improper to opine on the chances of
success of the grievance or the prescriptive nature of the remedy sought. The burden on
the union is to demonstrate a prima facie case of the three limiting factors in Article 39.02.
As Arbitrator O’Neil observed in Humber College at p. 21:
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Nonetheless, since there are some aspects of the grievance that an indi vidual
could grieve, the remaining questions are whether there is a prima facie case of
the three limiting elements: an unreasonable standard, a patent violation of the
collective agreement, and an adverse affect on the rights of employees ….
[49] As noted at the outset of this award the grievance filed alleges a violation of Articles
1 (Recognition), 6 (Management Functions) and 11 (Workload) when the Dean “assigned
an illegal SWF and patently violated the CA through the SWF revision process”. This does
not tell us much about the alleged violation however some insight is gained by reference
to one of the remedies requested in the grievance, namely “…an automatic audit of all
swfs beyond 43.99 total workload hours be implemented immediately at the end of the
first 10 days of each term to prevent illegal overtime improper overtime or the assignment
of overtime without the agreement of the teacher”. [bold in the original]
[50] At the hearing the union further refined the nature of the dispute. The issues that
the union seeks to have determined are interrelated. First, when is the employer required
to revise a SWF and second, to what extent (i.e. for what period of time) the employer
can permit workload to exceed 47 hours in the week
[51] For convenience Article 39.02 provides 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
[52] The parties did not dispute that the union has a difference directly with the College
regarding the interpretation, application, administration or alleged contravention of the
collective agreement. In addition, there was no dispute that Prof. Rouillier could have filed
an individual grievance.
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[53] In these circumstances, in order for a union grievance to be filed, the union must
demonstrate that the grievance falls within the exceptions set out in Article 32.09. This
requires the union must establish that the employee did not grieve an unreasonable
standard, that the standard is patently in violation of the collective agreement and that
adversely affects the rights of employees. The parties agree that all three of these criteria
must be met.
[54] The award of Arbitrator Devlin in Seneca College is particularly relevant to the facts
before me. In that case the union grieved that the employer assigned workloads in excess
of 47 hours per week in respect of four teachers. The employer issued an initial SWF
(“initial SWF”), a SWF issued ten days after the commencement of a course (“10 day
SWF”) and a final SWF near the end of the course (“final SWF”). In three cases the initial
SWF was under 47 hours but the 10 day and final SWFs were over 47. In the fourth case
the initial and final SWFs were under 47 hours but the 10 day SWF was over. Finally,
there were two other grievances filed on the same matter one of which involved five
professors. The same preliminary objections were made in that case as are made here.
Arbitrator Devlin held that the union had satisfied the criteria in Article 32.10 [now Article
32.09] in order to file a union grievance.
[55] With respect to whether the employee did not grieve an unreasonable standard,
she held (at p. 28)
…the Union alleges that the College assigned workloads in excess of 47 hours
per week contrary to Article 11.01 which in our view could constitute an
unreasonable standard within the meaning of Article 32.10 ….
[56] The union’s claim in this case is also rooted in the contention that the employer
assigned a workload in excess of 47 hours a week. I will concede that the alleged violation
in that case was made manifest by the fact that the SWFs on their face indicated non-
compliance whereas in this case the only SWFs before me were all in compliance with
Article 11. However, the union’s assertion that it is more likely than not that Prof. Rouillier
exceeded 47 hours for some period of time between January 11 and January 28 when
her SWF indicated that one hour of one of her labs was removed and taught by a part-
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time faculty (ASF, at para.11) is conceivable. I do not know what the union can prove on
the merits of the case with a full evidentiary record. But at this preliminary stag e I think
this is sufficient to meet the prima facie case test.
[57] With respect to whether there was a patent violation of the collective agreement,
the second criteria under Article 39.02, Arbitrator Devlin held (at p. 28):
The Board further finds that to the extent that the Union alleges that the College
assigned workloads in excess of 47 hours per week, including overtime, this
allegation could give rise to a patent violation or, in other words, a violation which
is obvious on its face.
[58] Arbitrator Devlin noted prior jurisprudence that held that it was not sufficient for the
Union to demonstrate that it has an arguable case and that a patent violation must be
plain or evident on its face. The employer in this case ma kes a similar argument. In
coming to her conclusion Arbitrator Devlin relied on the fact that in Ontario Public Service
Employees Union and Fanshawe College, unreported award dated April 18, 1996,
Arbitrator MacDowell held that absent an agreement between the employer and the
union, the employer could not assign workloads beyond the “hard ceiling” in Article 11.01
J1” (47 hours). This principle is not challenged in this case and therefore, like Arbitrator
Devlin, if the union can prove its case on the merits this would amount to a patent violation
of the collective agreement.
[59] Finally, Arbitrator Devlin had this to say about whether the patent violation affected
the rights of employees, the third criteria under Article 32.09 (at p.30):
As to the final criterion set out in Article 32.10 [now 32.09] of the collective
agreement, in our view, compliance with the workload provisions set out in Article
11 is clearly a matter of concern to the Union, particularly as it is alleged t hat
assignments in excess of 47 hours per week can only be made by agreement
between the College and the Union. …The Board also notes that two other
grievances have been filed alleging similar violations of the agreement, one of
which has been referred to arbitration. Accordingly, the issue would not appear to
be confined to the individual Professors who are the subject of the grievance before
the Board.
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[60] The above applies with equal force to this case. The employer argues that the fact
that in that case more teachers were impacted by the alleged violation over a shorter
period of time than is the case here is a material distinction in considering the third factor.
I agree that this distinction exits, however I do not agree that this is sufficient to reach a
result different than the one reached in Seneca College. The fact remains that the issue
of non-compliance with the threshold requirements of Article 11 is a matter that adversely
affects the rights of employees regardless of the number of other grievances where the
issue is raised.
[61] Accordingly, for the reasons noted above the employer’s preliminary objection to
my jurisdiction is dismissed. The matter will proceed on the merits on a date to be set.
Dated at Toronto this 19th day of April 2022.
___________________________
Larry Steinberg