HomeMy WebLinkAboutMorriseau/Mooney/Silva 23-02-13In the matter of a Workload Resolution Arbitration under the
Colleges Collective Bargaining Act, 2008
Between:
Confederation College (the “College” or “Employer”)
and
Ontario Public Service Employees Union, Local 732 (the “Union”)
Re: WMG Hours of Kara Morriseau, Tia Mooney and Kikki Silva
Appearances for the Union
Lesley Gilchrist, OPSEU, Grievance Officer
Rebecca Ward, President Local 732, Professor in School of Community Services
Kara Morriseau, Grievor
Tia Mooney, Grievor
Nikki Silva, Grievor
Appearances for the Employer
Jessica Toldo, Counsel, Hicks Morley
Shane Strickland, Dean, School of Health, Negahneewin, and Community Services
Elise Demeo, Senior Manager HR & Labour Relations (WMG Co-Chair)
Anne Renaud, Dean, School of Business, Hospitality and Media Arts
John Kantola, Associate Dean, School Apprenticeship, Trades and College Work Initiative
Richard Gemmill, VP Academic
A hearing took place on January 17, 2023, with written submissions on January 20, 27 and
February 3, 2023.
Arbitrator: Diane Gee
Date of Decision: February 13, 2023
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The Issue
1. The issue raised in this referral is whether the College is required to attribute
complementary function hours on the Standard Workload Forms (“SWF”) of Union
appointees Kara Morriseau, Tia Mooney and Nikki Silva, in connection with their work
on the Workload Monitoring Group (“WMG”). The College asserts that, as a Workload
Arbitrator (“WLA”) appointed under Article 11 of the collective agreement, I have no
jurisdiction to determine this matter. In the alternative, the College submits the matter
cannot succeed on the merits as the work was not assigned and attributed by the
College.
2. Before 2017, the College recognized WMG time on the SWFs of Union side members of
the WMG in the absence of a local agreement. From 2019 to 2021 the provision of
WMG time to union side representatives was captured by a local agreement. When the
2017 – 2021 collective agreement and local agreement expired, the College stopped
attributing complementary function hours for work on the WMG on SWFs.
The Union’s Submissions
3. The Union’s argument is advanced in four parts. First, it argues the work is necessary
and beneficial to the College. It is argued that the functions of the WMG are set out in
Article 11.2 C 1 and such functions do not contemplate advocacy. The Union argues that
the role of the WMG members is to ensure fairness, equity and the proper functioning
of the workload articles. The Union further submits that the scope of matters that the
WMG must consider, the extent of the information WMG members must possess, and
the fact that any member of the WMG may call either party before it, demonstrate the
WMG is contemplated to be a neutral decision-making body, not merely a consultative
body. It is asserted that the timeline of the WMG reinforces this conception, as it is
contemplated that the WMG will resolve issues before they become problematic.
4. The Union relies on a decision of Arbitrator Foster in Newell and Fanshawe College,
unreported, November 13th, 1987 (Foster) (“Newell #1”) in which a faculty member
sought to have the number of attributed hours in respect of her W MG work increased
from five to eight hours per week. The College raised a preliminary objection that the
issue was outside the jurisdiction of the WLA. In his award, Arbitrator Foster found he
had jurisdiction, and that the work of the WMG should appear on the SWF. The Union
submits that this decision stands for the proposition that the work of the WMG is
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sufficiently attached to the College to be work done for the betterment of the College,
rather than purely for the Union.
5. The Union further relies on the decision of Arbitrator Foster in Newell and Fanshawe
College, unreported, March 22, 1987, (Foster) (“Newell #2”) in which he considers the
merits of the faulty member’s request for an increase in attributed hours for work done
on the WMG. The College voiced its objections to his finding in Newell #1 that he had
jurisdiction. The Union submits the Arbitrator Foster’s comments affirming his earlier
decision support the Union’s position that the work done is work to benefit the College ,
not only the Union.
6. The second part of the Union’s argument is that the WMG is a decision-making body
which makes it qualitatively different from the CESC and UCC joint committees
considered in a later award of Arbitrator Kaplan in Sault College and OPSEU (Union and
Group Grievances dated September 30, 2014 and Workload Complaints Regard ing
Committee Time on SWF’s), 2014 CanLII 77053 (ON LA) (“Sault College”). The Union
argues that the members of the WMG have obligations to come up with fair and
impartial decisions that promote workload equity at the College.
7. The Union argues that Arbitrator Kaplan determined that Sault College was not
obligated to recognize hours spent working on the CESC and the UCC joint committees
on the SWFs on the basis that the work being done was “union work” and work in the
“Union’s interests.” The Union argues that Arbitrator Kaplan saw the WMG as
distinguishable, and that the decision is consistent with what the Union is seeking in this
matter; recognition that the WMG can comprise work in the interests of the College
rather than the Union.
8. The third branch of the Union’s argument is that the fact that the College doesn't
dictate who is on the committee is not determinative. The Union argues that this is only
one factor in a constellation of factors and the College is constrained in all sorts of ways
in how it can assign work. The Union analogizes the WMG with the JHSC considered by
Arbitrator Kaplan in Sault College, above, stating that the JHSC is like the WMG, in that it
is intended to promote the interests of the College.
9. The Union argues that a strict focus on whether the work was assigned or on who
determines who will do the work is not the most useful way of analyzing whether the
work should be recognized on a SWF. Rather, the Union submits, the analysis should be
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a qualitative one, focusing on the type of work being done and whether the work is in
the interests of the Union.
10. The final branch of the Union’s argument is that the language is ambiguous and the
difference of opinion amongst the arbitrators is the most persuasive evidence of the
existence of an ambiguity. In addition, the College has been recording WMG time on
SWFs for as long as anyone can remember. The Union asserts that the past practice
between the parties is relevant in interpreting what the collective agreement means
and whether WMG time is properly contemplated under Article 11 or Article 8.
11. The Union relies on a decision of Arbitrator Kelly in Fanshawe College of Applied Arts
and Technology and Ontario Public Service Employees Union, Local 110, unreported,
December 20, 2012, concerning a workload complaint of Jennifer Boswell as
distinguishing between time spent on union business and time spent on WMG activities
and for standing for the general proposition that the College should have a reason for
changing its standard practice.
The Employer’s Submissions
12. The Employer submits that there are several other committees at Confederation College
where there are both members of the Union and the College appointed. Amongst these
are the Union College Committee; the College Employment Stability Committee; and the
Return-to-Work Committee.
13. Article 8 of the collective agreement is entitled “Union Business.” This article allows the
Union to purchase time for its members in a variety of situations, including joint
College/ Union local committees. Although none of the committees referred to above
are expressly identified in Article 8, the College submits that they are all treated as
falling under Article 8.
14. The College does not agree with the Union that the work is done in the interests of the
College.
15. The College agrees that the parties had recently negotiated a local agreement that
included agreed upon time for work on committees, such as the WMG. The College does
not dispute that this time may have been agreed upon prior to the most recent local
agreement. The College submits, however, that this is irrelevant as, at the time this
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matter was referred to the WRA there was no local agreement in force and there was
no agreement for allocation of time on the WMG.
16. In respect of its submissions that I lack jurisdiction to entertain this referral, the College
submits that the WMG/WRA process was intended to be a quick and informal process.
and was not intended as a method for dealing with complex matters engaging
significant evidentiary issues, including that of past practice.
17. The College submits that this is a matter about Union release time, which is found in
Article 8 of the collective agreement. A WRA does not have jurisdiction over Article 8.
The College submits that Articles 11.01, 11.02 and 11.09, in respect of which a WLA does
have jurisdiction, contain no reference to Union release time.
18. The College relies on Centennial College and Professors Denvil Buchanan et al,
unreported, November 19th, 2001, (Turner) in which it was determined that the
arbitrator had no jurisdiction over a question that was addressed by Article 11.08 of the
collective agreement. The College further relies on Seneca College of Applied Arts and
Technology and Ontario Public Service Employees Union, Local 560, 2014 CANLII 51390
(ON LA) (Albertyn) In which it was determined that a referral in respect of a timetable
complaint, and not a workload complaint, was not within the arbitrator’s jurisdiction.
19. The College refers to Seneca College and Ontario Public Service Employees Union, Local
560 (Grievances of Professors Matson et al.), 2016 CanLII 274 (ON LA) (Hayes) (“Seneca
College”) in which Seneca College elected to change a longstanding practice and advised
that it would no longer identify the work of Union appointees to the WMG as
complementary functions. The arbitrator determined that the WRA process was
intended to address straightforward Article 11.01, 11.02, and 11.09 issues in an
expedited, informal, and non-precedential manner. Arbitrator Hayes determined that
the rights of Union officers and appointees lie at the heart of the matters before him,
and a consideration of Article 8 would be fundamental to the analysis. The College’s
preliminary objection that the WLA lacked jurisdiction was upheld. In keeping with
Arbitrator Hayes’ determination in Seneca College, the College argues that the WRA
process is meant to be informal and efficient. In this case, the College submits, the
Union has made arguments about past practice and ambiguity which does not support
an informal and efficient process. Furthermore, the College submits that the current
issue is not derived from Article 11.01, 11.02 or 11.09.
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20. In the alternative, the College submits that this matter ought to be dismissed on its
merits as the College has not assigned the work. The Union appoints members to the
WMG; the College cannot do so.
21. The College acknowledges that the parties had previously agreed to allocate time under
a local agreement for time spent on several joint committees including the WMG.
However, there is currently no agreement in place, so there is no allocation of time by
the College. If the Union is correct, the College argues, there would have been no need
to negotiate a local agreement in respect of the WMG for its members to be attributed
time.
22. The College does not agree with the Union's position that the WMG committee is
different from other joint committees or that the Union appointed members on this
joint committee are neutral.
23. The College relies on Loyalist College of Applied Arts and Technology and Ontario Public
Service Employees Union (workload referral of Pat Dockrill), November 19, 1986
(Wishart) in which a Union appointee to the WMG complained that she was given no
credit under attributed hours for this work. The arbitrator stated that he did not agree
that the hours could be complementary hours as the hours were not assigned by the
College but were the result of a Union local appointment. The arbitrator went on to
suggest that the mechanism for recognizing time for this work is to be found in the
Union Business article of the collective agreement.
24. In the case of Cambrian College and Ontario Public Service Employees Union, Local 655
(respecting Mike Lam), September 18, 1987 (Dean), an issue arose as to whether one of
the Union appointees to the WMG was entitled to claim hours spent on WMG duties as
a complementary function. Arbitrator Dean had dealt with this issue in an earlier
decision and had concluded that a teacher would be entitled to complimentary hours
only in circumstances where the College had assigned complementary functions, and
such was not the case with Union appointees to the WMG. In this case, the teacher
argued that “assignment by the College” was not the only way that “complementary
functions appropriate to the professional role of the teacher” could be arrived at.
Arbitrator Dean determined he was unable to find any authority within what was then
Article 4, now Article 11, of the collective agreement that would allow additional hours
to be attributed except where the function is assigned by the College. In the result,
Arbitrator Dean determined the teacher was not entitled to complimentary hours as a
Union appointee to the WMG.
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25. In a case involving a referral by Peter Haddock, undated and unreported, (“Haddock”)
one of the Union appointees to the WMG complained that his total workload hours
made no provision for the hours he was spending on the WMG. The reasons advanced
for his request to have such hours recognized on his SWF included that the WMG was a
mandated committee, and the committee differs in its purpose from other committees
in that it is to assist in the resolution of a management work assignment problem, not to
assist the local union or the employees. The arbitrator found there was not sufficient
substance in the complaints to support the subjective assessment that the work differs
significantly from that required of other College/Union committees. The arbitrator
further noted the collective agreement did not distinguish the WMG from other
committees and the complete silence on the matter of compensation for time spent on
the work of the WMG had to be based on the parties’ knowledge that if remuneration
should be required, it could be accommodated within the clauses of the article entitled
“Union Business.”
26. In Ontario Public Service Employees Union, Local 415 and Algonquin College (Regarding
the SWFs of Professors Upper et al.), September 23, 2005 (O’Neil) three of the four
Union appointees to the WMG requested the attribution of complementary function
hours for time spent on matters related to the WMG on their SW F’s. Arbitrator O’Neil
frames the issue as: “whether the College has violated articles 11.01 and 11.02 in failing
to attribute complementary function hours for work on the WMG.” The Union argued,
as it does here, that the committee was mandated by the collective agreement and
drew similarities between the WMG and the Joint Health and Safety Committee and the
College Council in respect of which other professors had been attributed
complementary function hours. Further, as the Union does here, the Union in Algonquin
College, argued that the work on joint committees should be recognized as part of their
work for the College. The College refers to the following excerpt from Arbitrator O’Neil’s
decision:
There is nothing in the workload formula which requires that hours spent on
work for the WMG be recorded on the SWF, that they be recognized as
complementary functions, or that they be assigned by the College. [...] the
language of that article does not provide that the time spent on such work
must be considered assigned workload, or that the College is responsible to
SWF it. [...] further wording would be necessary to give me a sufficient basis to
find that the College was required to assign complementary function hours for
WMG time on any individual SWF, absent some other facts, such as a local
agreement or estoppel from previous practice.
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27. The College states it agrees with the determination of Arbitrator O’Neil and argues that
her conclusion is further evidenced by the fact that the parties included WMG time in
their local agreement. They did this because there is no mechanism within the collective
agreement for it to be done. However, given that the local agreement has now expired,
there is no mechanism for WMG time to be included in a SWF.
28. The College puts forward the decision of Arbitrator Kaplan in Sault College, cited above,
in which the arbitrator was sitting as both an article 32 arbitrator as well as a WLA. In
Sault College, the college refused to recognize work performed by faculty assigned by
the Union to two joint Union/College committees, the UCC and CESC. There was a past
practice where members of the two committees had received credit on their SWF's for
this work. Further, the college charged the Union for certain work, but apparently not
the work on these two committees. Without any notice or consultation, Sault College
then amended SWF’s to remove any credit allocation for work on the two committees
on the basis it was Union work that fell under Article 8, Union Business.
29. The Union advanced many arguments, including:
• Had the parties intended to include work on these two committees under Article
8, Union Business, they would have referred to them by name.
• When the work was examined, it was clear that it was work for the College.
• The work on the two committees was clearly work and ought to attract
compensation. Otherwise, faculty are serving as volunteers.
• The work on these committees fell within complementary functions as
attributed work as the College participated in both committees.
• The work on a joint committee was completely distinct from Union business.
• There were two other joint committees where members did receive
compensation for their work; health and safety and WMG.
30. Arbitrator Kaplan determined that only work assigned by a college appears on a SWF.
Article 11.01 B 1 makes clear, workload is to be assigned and attributed by the college,
not one or the other. Further, Arbitrator Kaplan concluded that, when faculty volunteer
for activities, the work performed does not appear on a SWF.
31. Arbitrator Kaplan had been provided a case in which the parties had agreed to allocate
WMG hours on the SWF, but the teacher felt the number of hours allocated were
insufficient. Arbitrator Kaplan stated that what the parties at one college do, does not
apply to all colleges. Further, he found the decision involving the WMG was factually
and legally distinguishable as the parties had agreed to allocate SWF hours and the
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adjudicator's job was to determine how many. He stated that there were some
situations, such as participation on joint occupational health and safety committees,
where an underlying statutory obligation may require the time to be treated as work
time. He went on to state that, absent these unique circumstances, where the parties
do not agree, Article 8 applies.
32. In the end, Arbitrator Kaplan determined that both committees were local joint
committees, with the Union representatives appointed by the Union to represent its
interests at Sault College as part of the representation of employees and the
administration of the collective agreement. According ly, time spent on the committees
was to be dealt with by way of Article 8 – Union Business and not article 11 – Workload.
33. While the College relies on the entirety of the Sault College decision, it points out that
the crux of Arbitrator Kaplan's decision was that individuals were acting in their capacity
as appointed Union members, not faculty members.
34. Finally, the College refers to Sault College of Applied Arts and Technology and Ontario
Public Service Employees Union (In the matter of grievances of Lynn Dee Eason and
Frank Turco), May 28, 2015 (Starkman) in which the Union argued that Article 8.02
required the college to reduce the workload of a person who was on the Joint Insurance
Committee and Joint Grievance Scheduling Committee. The College submits this case
highlights the decision reached in Sault College, cited above, and reiterates that the
Union reimburses the College for individuals on Local Union Committees in accordance
with Article 8.
35. Responding to the Union’s submissions, the College takes issue with the Union’s
attempt to distinguish the WMG from other joint committees and asserts it is not
material as the individuals are appointed to the WMG by the Union and not the College.
The issue is a narrow one that does not involve an overall analysis of the WMG. The fact
that the College does not assign the Union members of the WMG means the work is not
assigned or attributed by the College and that is end of the analysis required.
36. The College argues that an analysis of past practice or ambiguity is generally not proper
for a WRA and refers to Arbitrator Hayes’ 2016 decision in Seneca College, cited above.
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Union’s Reply Submissions
37. The Union takes issue with way the College has characterized the issues. The Union
disputes that there is a preliminary issue and an issue on the merits to be determined as
asserted by the College, namely, whether this is a proper workload complaint falling
within the jurisdiction of a WLA and, secondly, whether WMG hours are assigned or
attributed by the College. The Union submits that the issue whether the work is
assigned and attributed within the meaning of Article 11.01 period. Only if a finding is
made that the work was assigned and attributed by the College within the meaning of
Article 11.01 does the WLA have jurisdiction. The Union disputes that the complexity of
a matter has any bearing on whether it falls within the WRA and WMG process. The
Union relies on a decision of Arbitrator Davies in Fanshaw College and OPSEU (In the
matter of the grievances of Jeremy Gurofsky), 2015 CanLII 62333 (ON LA) in which
decisions were made as to whether issue should properly be heard by a WRA without
any regard to the complexity of the evidence or issues or whether the matte r could
proceed quickly.
38. The Union disputes the College’s characterization of the Seneca College decision, cited
above, arguing the decision was not dealing with a singular question about workload but
rather a myriad of questions that arose under Article 8. The Union argues that, in those
circumstances, it is not surprising Arbitrator Hayes determined that the matter should
be heard as a matter arising from Article 8 and should be under the Article 32 proces s.
39. The Union suggests that the College has misapprehended its position on past practice
between the parties. It is the Union's position that these hours have not always been
subject to a local agreement. Rather, the Union understands that the College has always
assigned these hours whether there has been a local agreement or not. The Union
submits that the parties had a shared understanding that the work done for WMG was
work that was captured under Article 11.01. The mere fact that this understanding
appeared in a local agreement does not negate the lifetime understanding of these
parties.
40. The Union submits it is not arguing the parties agreed to an exception to Article 11.01
that the College must maintain. Rather, the Union argues that there exists a
longstanding practice between the parties that demonstrates a shared understanding of
what 11.01 B 1 means and that it includes time spent working on the WMG. The Union
characterizes what the College is doing in this matter as inserting an understood
meaning of 11.01 into a local agreement and then declaring that the me aning that pre-
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existed that agreement was voided. The Union argues that there is no legal authority for
this.
41. The Union takes exception to the conclusions reached by the unnamed arbitrator in the
Haddock decision and reiterates its reliance on Newell #1 and Newell #2.
Decision
42. Article 11.02 A 6 (b) provides that “grievances arising with respect to Article 11,
Workload, other than 11.01, 11.02 and 11.09” are to be handled according to the
grievance procedure set out in Article 32. Issues arising out of Articles 11.01, 11.02 and
11.09 are to be resolved according to the procedures set out in Article 11.02.
43. I have before me three faculty members who assert that, by not recognizing hours spent
working as committee members of the WMG on their SWFs, the College did not
complete their SWFs in accordance with Article 11.01. The issue directly raises a
question as to the interpretation of Article 11.01. It is not necessary for me to consider
any other articles of the collective agreement to resolve these referrals. In such a case,
jurisdiction does not hinge on the complexity of the matter. I find that I have
jurisdiction.
44. There is nothing in Article 11 – Workload, that requires time spent on the WMG be
recorded on a SWF. Rather, for hours to count towards “total workload,” as that term is
used in Article 11.01 B 1, they must be “assigned and attributed by the College.” The
College does not assign the union side members of the WMG, nor does it attribute
hours for WMG work.
45. The Union submits that there is a latent ambiguity and past practice evidence is
admissible to reveal the mutual intention of the parties as to the meaning of the
provision. The parties that negotiated the language, and whose mutual intentions
would be relevant to its interpretation in the event of a latent ambiguity, are the College
Employer Council for the Colleges of Applies Arts and Technology and Ontario Public
Service Employees Union. Further, I find the past practice is not consistent in that the
most recent treatment of WMG time by these parties was by way of a local agreement
that would not have been required if Article 11 required WMG time be recorded on the
SWF.
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46. The cases relied upon by the Union on the issue of the application of Article 11 to WMG
time do not lead me to any other conclusion than that set out above. The cases that
refer to factors other than whether the work was “assigned and attributed by the
College” do so because the arbitrator is considering the Union Business article of the
collective agreement and whether the work was “for the purpose of assisting employees
and the Union Local in the administration of this Agreement and the business directly
pertinent thereto”, an issue that is not before me. This matter is not a referral where
WMG hours were recognized on a SWF and the faculty takes issue with the number of
hours recognized and I do not find cases dealing with that issue to be analogous to the
instant matter where the College argues it is not required to recognize any such hours at
all.
47. The referrals are dismissed.
________________
Diane L. Gee