HomeMy WebLinkAboutUnion 98-06-05
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ONTARIO PUBLIC SERVICES EMPLOYEES UNION
UNION 9RIEVANG~
BOARD QF A8BITRAIION:
,JANE H. DEVLIN
ROBERT J. GAl.L1VAN
CHAIR
COLl.EGE NOMINEE.
SHgRRIL MURRAY
UNION NOMINEE
APPEARANCES FORJ~~QLLEG E:
BRENDA J. BOWLBY
MEL FOGEL
DENISE CHAN
8PPEARJiNCES FOR THE UNION:
GEORGE RICHARDS
LARRY OLIVO
OPSEU NO.:
971.3542 (ACADEMIC)
HEARING DATES: JANUARY 23,1998
FEBRUARY 9. 1998
6.01
(i) maintain order, discipline and efficiency;
(ii) hire, discharge, transfer, classify, assign, appoint, promote; demote,
layoff, recall and sU$pend or otherwise discipline ernployees subject
tathe right to lodgea grievance in the manner and to the extent
provided In this Agreement; . ..
(iii) manage the College and, without restricting the
generality of th.eforegoing. the right to plan, direct and control
operations, facilities, programs, courses, systems and procedures,
direct its personneljdeterminecomplement, organiZation, n1e;:thods -.
and lhe number I location and classification of personnel required
from time to time, the number and locaUon of campuses and
facilities, services to be performed,lhescheduling of assignments
and work, the exten~i()n, limitation, curtailment, orcessation of
operaUons3ndall other rights and responsibiliUes not sp~cificqlly
modified elsewhereih this Agreement - . .
11.01 B 1 Total worktoad assignedand attributed by the College to a
teac:hershall not exceed 44 hours inanyweek for up t036 weeks in which
there are teaching contact hours forteachersin post-secondary programs
and for up t03S weeks in which there are teaching con-tact hours in the
case of teachers not in post-secondary programs.
The balance of the academic year shall be reserved for complementary
functions and professional development.
Workload factors to be considered are:
teaching contact hours
(iI)
(in)
(iv)
attributed hours for preparation
attributed hour$ for evaluation and feedback
. ....
attributed hours forcompleril.entary functions
11.01 D 2 A "teaching contact hour" IS a College scheduled teaching hour
assigned to the teacher by UH~ College.
11.01 C Each teaching contact hour sh~1l be assigned as a 50 minute
block plus a break of up to ten minutes:, .
The voluntary extension of the teaching contact hour beyond 50 minutes by
the teacher and any student(s) by not taking breaks or by re-arranging
breaks or by the teacher staying after the period to consult with any_
student(s) shall not constitute an additional teaching contact hour.
..PREP
AHAT
ION
..New..
Estqbllshed A
Established B
Repeat A .
Repeat B
Special A
Special B
..1 :1.1 0
1:0.85
1:0.60
1:0.45
1 :0.35
as indicated below
as indicated below
11.01 E1Weskly hours for evaluation and feedback in a course Sl1811 be
attributed to a teacher In accordanc8'Nith the following formula:
-,. -
RATIO OF ASSIGNED TEACHING CONTACT HOURS TO
ATTRIBUTEDHOURS FOR EVALUATION AND FEEDBACK
Routine or
Assisted
."
In-Process
1 :0.015
per student
1 :0.0092
per student
11.01F Complementary functions appropriate to the professional role
of the teacher may be assigned to a teacher by the College. Hours for
such functIons shall be attributed on an howr for hour basis.
An allowance of a minimum of five hours of the 44 hour maximum weekly
. total workload shall be attributed as follows:
three hours for routine out~of~class assistance to Individual students
two hours for normal administrative tasks. .
11.01 G 2 Where there are atypical circumstances affecting the workload
of a teacher or group of teachers which are not adequately reflected in this
Article 11, Workload, additional hours shall be attributed, following
discussion between each teacher Individually and the supervisor, on an
. ,- .
hour for hour basis.
. . ,
11.01 I Teaching contact hours for a teacher in post-secondary
programs shall not exceed 18 in any week. Teaching contact hours for a
teacher not in post-secondary programs shall not exceed 20 in any week.
. 11.01 J 1 . Notwithstanding the above, overtime worked by a teacher shall
not exceed one teaching contact hour in anyone week or three total
workload hours In anyone week and shaH be voluntary.
..11.01M .....WhereaUnion Local and a College agree in writing on terms
governing workload assignments at the College, such agreements shall be
.bindlng on the Collegel the Union LocaJ and the teachers and timetables
shaH be established in accordance with such local agreements.
.11.02 A1 (a) Priorto the establishment of 0 total workload for any
teacher the supervisor shall discuss the orooosed workload with the
.' .. , -' . . ,
leacher and complete the SWF, attached as Appendix I, to be provided by
the College. The supervisor shaU give a copy to the teacher not later than
six weeks prior to the beginning of the period covered by the 1lmetable
excluding holidays and vacations, It is recognized that ifthe SWFls
subsequently revised by the College, it will not be done without prior
consultation with theteElcher. ..
. 11.02 A 1 (b) The College may. where a change in curriculum requires
. .
it. amend assignments provided to a teacher after the original assignment,
subjecUo the teachers' right to refer any matter to the College Workload
Monitoring Group (WMG) referred to j n 11.02 B 1 and if necessary, tile
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, n'umber of sections, type and number of
11.02 A3 .... .. FolloWif1!;} receiptoOhe SWF ,the teacher shall indicate in
..wrlting C,lothe SWFwhether In agr~ementwith the total workload, .If not in
agreement the teacher€Jnd. the~upervisor may'.add such otherc6mrrlents
as.lsconslderedappropriate.and may Indicate in writing thaf the workload
....should be reViewedbytheCo!lege WMG,
., .. --. " - .--" -. - . , . " .... ,. . -. .-.. . .
- . . ,'.
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11.02 A 4lnth~event that th.;:Jteacher is not in agreement with the total
workl.o~d and wishesitto be reviewed by the WMG, the teacher must so
indicate In writing to the supervisor within threeworklng days from the date
of receipt of theSWF. ...... ... . .
Absent sllchlndlcation. the teacher shall be considered to be In agreement
with the total workload. The completedSWF wlJl be forwarded by the
supervisortQ the WMGwithin three working days from date of receipt from
the teacher with a copy to be gIven to the teacher.'
., , II.
. .
11.02 A B (a) In the event of any difference arising from the
interpretation, application, administration or alleged contravention of 11.01
or 11.02, a teacher sh~1I dj~cllss such difference as a complaint with the
teacher's i tnl'l1ediate 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 supervisoran opportunity of adjusting the complaint. The .
discussion shall be between the teacher and the Immediate supervisor
unless mutually agreed to have other persons lnattendance. The
immediate supervisor's response to the complaint shall be given within
seven days after dfscussion with the teacher.
Failing settlement of such a complaint, a teacher may refer the complaint.
.. .. In writing, to theWMG within seven days of receipt of the immediate
supervisor's reply. The complaint shall then follow the procedures outlined
In11.02 B through 11.02 F. .
11.028 2 EachWMG wIU be composed of eight members, with four to
be appointed by theGoUegeand fourappornted by the Union Local unless
the. Colleg~ and the Union local othelwis6 agree. The term of office of
each member of theWMG ~hall be two years, commencing on April 1 In
each year wlUlfour members of the WMG, two College appointees and two
Unionappolntees, retiring on March 31 of each year. A quorum shall be
comprised offour,six or eight members with eq ual representation from the
COllege and Unif)n Local.
Alternative arrangements may be made at the local level upon agreement
of the Union Local~nd the College.
The functions of the VVMG shall include:
(i) reviewing workload assignments in general at the College and
resolving apparent inequitable assignments;
(ii) reviewing spf:cific disputes pursuant to 11.02 A 4 and/or 11.02
,.A6 (a) and where possible resolving such disputes;
making recommendations to the College on the operation of
workload assignments at the College
(iv) reviewing individual workload assignments where requested
by the teacher of the Union Local and, where PQssible,
resolving the dIsputes;
(v) making recommendations to the College and Union Local
committees appointed under Article 7, Union College
Committee, as to amendments or additions to the provisions
governing workload assignments at the College for local
negotiation ill accordance with 11.02 G in order to address
particular workload needs at the College. .
Jevel ofteaching and experience of the teacherandavailabHity
of technical and other reSQurce assistance; .
size and amenity of classroom, laboratory or other
teaching/learning facility;. .
numbers of students in class;
(v) instructional modes;
(vi) availability of lime for the teacher's professional development;
(vii) prevloLJsly assigned schedules;
(viii) lead lime for preparation of new and/or changed schedules;
(Ix) availability of current curriculum;
(x) students with special needs;
(xl) Introduction of new technology;
(xii) the timeta,bllng of workload.
11.02 D 1 The WMG shall meet where feasible within one week of
receipt ofa workload complaint or at the request of any memb'er of the
WMG,
11.02 D 2 The WMG.shall have access to all completed SWFs and such
other relevant workload data as It requires to revlew workload complaints
at the College.
11.02 0 3 The \rVMG or any member of it may requIre the presence of
thesupslvisor and/or the teacher before it to assist it in carrying out its
re s po nsl bi! fti es.
11.02 E 1 If following a review by the WMG of an Individual workload
asslgnmen. t which has been fOlwarded to the WMG, the matter Is not
resolved,theteachershallbe so advised in writing. The matter may th~n
bereferred by the teacher to a WRA provided und~r the agreement. .
Falling notification by the WMG within three weeks of the referral of the
Workload assignment tothe WMG, the teacher may refer the matter to the
WRA.
.11.02 E 2. If the teacher does not refer an assIgnment to the WRA within
one week of the receIpt by the teacher of notification by the WMG that it
has been unable to settle the matter, the matter wiH be considered to have
been settled,
11.02 F 1 One or more W RAs shall be jointly selected by
the College President and the Union Local President. The appointment of
a WRA shall be ffOlTl July 1 until June 30 of the following year unless both
parties otherwise agree inwrlting. A WRA shall act ana rotation basis or
as othef\vise agreed.
11.02 F 2 A WRA shall indicate to the College President and the union
Local President, in writing, willingness to act within the time frames
specified In this Article, . .
11.02 F 3 In the event that the College President and the Union Local
Presidentare unable to agree upon the appointment of a WRA, either the
College or the Union Local maY' request the College Relations Commission
to appoint a WRA and the WRA shall, upon appointment by the College.
Relations Commission, have the same powers as if the appointment had
been made by the College and the Union Local as provided herein. ' .
11.02F5 ... A WRAshaWdfjtermineappropriate procedure. TheWRA
shall.commenceproceedings within two. weeks of the referral.of.lhe matter
. to. theWRA.ltis understood that the proc~dure shall be Informal, that the. '
. WRA.shall. discuss .themater withthe teac;her, the leacher's supervisor,
fUld whomever, else the VIJRA considers appropriate.
11.02F6A WRA shall, following the Informal discussions teferr~d to
above, issuea written award to the College and the Union Local and to the
teacher, resolving the matter, Such award shall be issued by the WRA
withinten working days ofthe infonnal discussion, The award shall only
have application to the teacher affected by the matter and shaH have no
application beyond the end of a twelve~month period from the date of the,
beginning oftheworkload assignment. .
11.02 F 7 On request of either or both parties within five workjng days or
such award, theWRA shall provide a brief explanation of the reasons for
the decision.
11.02 F 8 The award of the WRA shall be final and binding on the parties
and the teacher, and shall have the same force and effect as a Board of
Arbitration under Article 32, G. rievance Procedure.
. . - , . -. . .
. .
11.02 F 9 Having regard to the procedures set out herein for the
resolution of disputes arising under 11.01 and 11.02, no decision of the
WMG or award of the WRAis subject to grieyance or any other
proceeding, .
.....,..
Article 32
GRIEVANCE PROCEDUR.E:S
Union Grievance
3.z.10 The Union or Union Local shall have the right toflle a grievance
based on a difference directly with the College arising out of the Agreernent
. - -.
. concerning th13 Interpretation, appllcaUonJadministration or~lIeged .
contrav. e.n..tio.n...ofthe A9. reern..ent.6uchgrie..vance...shall not Include.. any
matter upon Which an employee would be personally entiUed to grieve and
the reglllargfievance proCt3dure for personal or group grievance shaH not
..be by-passed exceptwheretheUnJon establishes that the employee has
n. o.t... grieved an unreast)f1~Qle standardthati~patentlyin violation of this
Agreernentand that adversely affects the rights of employees..' ...
. , ", - ,..' , '.,. - ... ,".. ' ,.
...Such grievariceshaHbe submitted In writing by the Union Grievance
... OfflC6rat He,adOffi~ or a Union Local President to the Director of
Personnel or as designated by the" College, within 20 days following the
expiration of the 20 days from the occurrenCe or origination of the
circumstanc!3sgiving rise to the grievance commencing at Step One of the
Grievance procedure. ..
At theoulset of the hearing, U,e College raised two preliminary
objections to the arbitrability of the griev~nce.Fir8t1y, the College maintained that
as the grievance alleges a violation of Article 11.01 t it cannot be dealt with by a
B()ard of Arbitration appointed under Article 32 but instead must be referred to a
Workload Resolution Arbitrator pursuant to Article 1'1.02. Secondly, the College
. .
maintained'hat the Issue raised is notthe proper subject of a Union grievance.
Ms. Bowlby also indicated that the College was not in a position to proceed with
the hearing on the merits, having only recently been advised by the Union that it
wishedthe Board to reserve on the College's objections and hear the grievance
on its merits. Accordingly, this award deals solely with the objections to
arbilrability advanced by the College.
The facts which are material to these oblection~ are as follows: The.
CoHegeernploys approximately 500 Professors and the workload foreach
. . . .
Professor,is set out on asta.ndard workload form rSWF') which is prepared by
the CollegeanddeHneatesteaching contact hoursandattributed hoYfs as
provided in Article 11. In accordance with that Article, SWF's must provided to
.
Professors six weeks in advance of the period covered by tha SWF. The
evidence Indicates that SWF's are initially prepared based on the College's
.. estimates of enrolment for particular courses which take into account actual
enrolment to date as well as enrolment in prior years. There was no dispute that
the level of enrolment affects the number of attributed hours. For purposes of
determining actual enrolment in a given course, the College conducts an audit
approximately ten days after a course commences, Which is referred to as the
"ten day audit". A final audit is conducted toward the end of the course.
The winter semester in 1997 extended from January to April and was
divided into two periods separated by a one~week spring break. SWF's for this
semester were initially prepared and reviewed with Professors in October, 1996.
, ,
Ten day audits of course enrolmentwere conducted In early January, 1997 and
final audits, .in April of that year.
with the result that; Cltthe time of the ten day audit, her total workload was 49,70
hours per we~k. At the'time ofthe finalaudl.t, Ms. Ness'total workload was 49.10
,hours per week. As to Mr. Sishop.thaevidence ind.lcates that his inltfal SWF
renected a total worklQad 42.28 hours per week. At the Ume of lhe ten day audit,
hl$totell workload was 47.46 hours per week and atthe time of the final audit was
47.23 hOUrs per week. In the c-ase of Mr. Howarth. the initial SWF reflected a .
total workloadof46,70 hours per week, with a total workload of 47.54 hours at
the time of the ten dayauqitand 47.51 hours at tho time of the flnal audit.
As to Mr. Wade, the evidence indicates that his Initial SWF reflected
a total workload of 43.25 hours per week and at the time of the ten day audit, his
total workload was 47.09 hours. At the lime ofthe final audit. the talal workload
'\. ~.
was 46.10 hours. In respect of Mr. Wade, Ms. Bowlby submitted that even on the
Union's interpretation. there could be nav/alatlon oHhe collective agreement as
by the time of the final audit, Mr. Wade's total workload was less than 47 hours
per week. Mr. Richards, submltted,however, that at the time of the ten day audit,
of thE;) agreement In any event) there wasno dispute that1he four Professors In
. question agreed to work the additional hours and that none filed a grievance or
submitted a complaint ~o the Workload Monitoring Groupor to a Worklo,ad
Resolution Arbitrator.. It was also acknowledged that the College ~.id not seek the
Union)s agreement to assign any of the Professors a WorkJoadln excess of 47 .
hours per week.
Apart from 1he circumstances giving rise to the grievance, the Union
called as 11 witness Larry Olivo, the ViGe~Pre$jdent of the Loca!. Mr. Olivo
testified that Article 11 of the collective agreement is significant to the Union
because it controls both the type and amount of work that may be assigned. He
also testified that workload was a major issue during the strike which took place
in 1984. Moreover, although the College proposed certain changes to Article 11
during the current round of bargaining, this was one of a nLJmber of proposals
which was voted on and rejected by the membership.
. .
Mr. Olivo also testified that in the years immediately following tt)e
introduction otthe workload provisions, Which are now contained in Article 11,
certain matters were referred to the Workload Monitoring Group and resolved at
that level. Hf;3 testified, however, that thE) issue raised in the grievance before the
. .
that a Workload ResolutionArbitrator has authority to deaLonly with the complaint
of an individual Professor and has no authority to directthe Collegeto cease and
desistfrom a particular pr~ctice, which isthe relief claimed by the Unionjn this
case.
As well, Mr. OHvo testified that itwas his understanding that allhough
- individual Professors can agree to work more than 44 hours per week, even with
theiragreement, the College cannot assign workloads in excess of 47 hours per
week. Moreover, although Mr. Olivo agreed that the grievance concerns only four
Professors out of a total of 500 and that in each case, it appeared that total
workload exceeded 47 hours due to increases In enrolment, he testified that as
the College schedules Professors close to .the maximumworkJoad of 44 hours
per week, there are certain to be cases where workloads exceed 4 7 hour~ per
week, inclusive of overtime. contrary to Article 11, Mr, Olivo, however, appeared
to have little knowledge of the circumstances involving the four Professors who
are the sllbject oFthe grievance and agreed that their circumstances may not
have been uin keeping with the norm". In any event, Mr. Olivo expressed the view
that the assignment of more than 47 hours per week may result in Professors
being overworked and affect the quality of instrucllon. Nevertheless, he agreed
that he had no basis for suggesting that this had occurred in the cas80f the four
Profe-ssors In question.
Finally, M~. OUvotestifiod that twoaddiUonalgrievanceshave been
flied all eg.1 ng similar breqchesof thecoHectiveagreement.1'hefirstgrievance
whfchWasfiled in May, 1991, involved one Profe&sor and Mr, Olivo testified that
this grievance was inadvertently abandoned. The second grievance was filed in
November, 1997 and involved five Professors, one of whom was assigned a
wOrkload of 55 tlOUrs per week. Mr. Olivo testlfh:d that this latter grievance has
been referred to arbitration.
It was the submission of Ms. Bowlby that as the grievance alleges a
violation of Article 11.01 and seeks a reduction In workload, it ought to have been
dealt with by the Workload Monitoring Group and, thereaftec by a Workload
ResolutIon Arbitrator. Accordingly, Ms. Bowlby contended that a Board of
Arbitration appointed under Article 32 of the collective agreement has no
jurisdiction to deal with the Union's complaint. Ms. Bowlby further contended that
although certain provisions of Art Ie I €I 11.01 appear to be martdatory in
establishing the maximum number of hours that may be a~signed on a weekly
basis, Article 11.01 G 2 specifically contemplates that in atypical circumstances,
additional hours may be attributed following discussiol1 betw~en tm individual
Professor and his or her Supervisor. Moreover, Ms. BOWlby submitted thatinthls
47 hours per week. She also pointed out that in each case,thelniUal SW. .Fwas
" , ,. ..'- . . .
.. . " - ---". .-
. .
below 47 hours and that this number was exceeded only aSa result of an
- . . .,.
.. -.
unexpected incraasein enrolment. ACcordingly, Ms. Bowlby submitted that the
Individual Professors Involved agreed to workloads in excess of47 hours per
week as they were entitled to do and that there was nQ requirement for the
College to consult with tho Union regarding the matter.
Ms. Bowlby further contended that the issue raised is not the proper
subject of a Union grievance as provided in Article 32.10 of the collective
agreement. In particular, as the Union pointed to only three instances out of a
total of 500 in which enrolments exceeded College estimates, it was submitted
that the grievance does not concern an unreasonable standard or1 in' fact, any
standard. Moreover, as the grievance involves the individual circumstances of
three or, at most, four Professors and as insorne cases! the workload of these
Professors exceeded 47 hours per week by only a matter of minutes, Ms. Bowlby
contended that there cannot be a patent violation of the agreement. As well, Ms.
Bowlby maintained that the matter is not one which adversely affects the rights of
employees within the meaning of Article 32.10. In the result, Ms. Bowlby asked
the Board to find that the grievance is inarbitrabh~,
excess of 47 hOlirs per wee~.lt was further submitted that as the grievance
seeks c~mpliance with a standard setout in Article 11 oftheagreement, it Is not
a m.atter which can properly be dealt with by a Workload Resolution ~rbitrator.ln
this regard, Mr, Richards pointed out that the award of such an Arbl1rator applies
to the workload ofindividual"ProfessQrs and has effect for a period of only 12
months from the commencement of the assignment In any event, Mr. Richards
contended that the grievance also alleges a violation of Article 6 Which is clearly
a matter within the jurisdiction of a Board of Arbitration appointed under Article
32.
Mr. Richards further contended that pursuant to Article "11.01 J 1, the
College is prohibited from assigning Professors workloads in excess of 47 hours
per week, inclusiVe of overtime, even if Professors consent to such assignments. .
In fact, it was contended that such assignments are permitted only where there ~s
an agreement between the College and the Union pursuant to Article 11.01 M.
Moreover, Mr, Richards submitted that Article 11.01 G 2, which was relied on by
the College, has no application as that Article allows for additional hours to be
attributed in atypical circumstances and to this extent, affecls the ratio belween
teactling contact and attributed hours provided for in Article ii.0i.1t was
submitted, however, that the provision cannot be construed as enabling the
College to assign workloads In excess of 47 hours per week. On this basis,
therefore, Mr. Richards maintained that such an assignment constitutes an
unreasonable standard in patent violation of the collective agreement. Moreover,
given the importance of workload to members. of the bargaining unit and the effect
of improper workload assignments, it was submitted that the violation is one
.f
which adversely affects the rights of employees within thameanlng of Article
32,10. In the result, Mr. Richards requested that the. objections to arbitrability
advanced by the College be dismissed.
Decision
The first issue to be determined is whether the grievance is one
which can be dealt with by this Board of Arbitration, which was appointed under
Article 32 of the collective agreement. In this regard, al1hough the Union
maintained that the Board has jurisdiGtion to deal with an alleged violation of the
managernent rights clause, which is contail)edin Article 6, the grievance involves
a claim that the College improperly assigned certain Professors workloads in
excess of 47 hours as specified in Article 11,01. In these circumstances, we find
that the grievance properly concerns the alleged violation of Article 11.01 and the
issue of the Board's jurisdictioQ to deal with this matter cannot be avoided by
reliance on thE~ genE~ral provisions of Article 6.
both the College and the Union. The functions of this group include reviewing
workload assignments (at the request of either a ProfessQr orthe Union) and
where possible) resolving disputes regarding sLlch assignments and making
recommendations to the College relating to the operation of workload
assignments. Article 11.02 further provides that failing settlementof a complaint
by the Workload Monitoring Group, a Professor may refer the complaint to a
Workload Resolution A~bitra1or. Following proceedings before such an Arbitrator,
which are to be informal and include discussion with the Professor and his or her
Supervisor, the Arbitrator is to issue a written award whid1 has application only to
the Professor affected by the matter for a period of 12 months from the
commencement of the assignment. Article 11.02 A 6(b) further provides that
grievances arising under A~icle 11) other than 11.01 and 11.02, shall be dealt
with in accordance with the grievance procedure set out in Article 32.
In view of these provisions, the College maintained that the
grievance raises an issue which is not within the jurisdiction of this Board of
Arbitration. In support of this S4bm,ission. the College relied on Ontario Council of
Reilii-rrt~fQLlrrQ.~91Ieqes of AopHQrLAds ilDQ IeQ!JUQJQgy(Q.(J1Ilbrian College) and
had been assigned a workload In excessnf that provided for In Article 4.01 (now
Article 11,01). Although the Board expressed the view that the assignment
contravened the agreement, it, nevertheless, upheld the Colleg,e's objection to
arbltrablllty on the ground that H did not havejurlsdIction to deal with the matter
and that the only recourse available was.for the Professor to refer the complaint
to the Workload Monitoring Group and, thereafter, to a WorkloCld Resolution
Arbitrator. In fact, the Board noted that although the Union had previously
followed this course, a preliminary objection had been upheld on the ground that
the Union did not have the status to grievo.
In contrast to lhe\karnbr@n College award is the award of a Board'
chaired by Arbitrator Burkett in fanshawe College off\pplied Arts amI
Iec;hnQlogy.and Ontario Public Service Employ,ests UnIon March 29, 1989
(unreported). In that case, the Union filed a grievance claiming that the College
was Improperly assigning partial teaching contact hours contrary to Article 4.01 (3)
(now Article 11.01 C) which stipulated that each teaching contact hour shall be
assigned as a 50 minute block plus a break of up to 10 minutes. The Board also
,
noted that the Union had previously referred the matter to a Workload Resolution
Arbitrator who had upheld the Union's complaint. The College, however, refused
to gIve general effect tothat award andadvanc:edtwo prelirninaryobjectiofl$~O<
the arbitrability oftheUniongrie.van<:ebefore the BurkeU BOa.rd which are similar ...
to the objections advanced by the College inthis9ase.In disposing.ofthe
College's conterition that the mattercolJld not be qealt with by a Board of
ArbItration appointed under Article 11 ,10 (now Article 32.10),themaJorlty ruled .as
follows: c.
The issue Is whether the union can bring a policy grievance under Article
11.10 alleging a violation of Article 4,01 (3) with respect to the assignment
of teaching contact blocks of less than 50 minutes, Because of the unique
configuration of facts in this matter we do not have to decide if the union
can proceed by means of a POlicy grievance under article 11.1 0 by reason
solely of an announced policy of lhe college. In this case there are three
critical facts that shape out consideration, Firstly, there is a prior award
under Article 4,02 [now Article 11,02] in which it was found that under
article 4.01 (3) "each leaching contact hour shall be assigned as a 50
minute block plus break". It should be noted at this poInt that under article
4.02(6)(f) [now Article 11.02 F 6] "the award (under artlcie 4.02) inow
Article 11.02J shall only have application 10 the teacher affected by the
matter and shall have no application beyond the end of the twelve month
period from the date of the beginning of the workload assignmenf'.
Secondly, there is the fact of the college's refusal to give the prior award
general application. rhe college continues to take the position that it is
free to assign contact hours in le$$ than 50 minute blocks. Thirdly, there is
the fact of the union attem.pting to have individuals grieve the continued
assignment of contact hour blocks of less than 50 minutes.
When we consider the position of the college vis-a-vis our lack of
jurisdiction to entertain this grievance under article 11.10 In-ti'ght of.thesB
facts we are inescapably drawn to the conclusion that theinterpretatlGn of
article 4.02 advanced by the college isan anomaly that could never have
been intended. Under the college's Interpretation the union is without
means to unilaterally initiate a policy grievance challenging a general
misapplication of the threshold workload standards stiplllated in article 4.01
(Le. total work load, teaching contact hours, ratio of aS8igned teachinsJ
Gontact hours to attributed hours for preparation, maximum number of .
course preparations,etc,)~ . Underthec()llege'slnterpret~Uonanygrievance
claiming a breachof thesasf.andardsmust befUedby anhldividualleichsr
or group of teachers and thsremedy appHes.only tothegrievofs and only
for. twelve months, even though. the agreement extends beyond Jhis twelve
month period. It would be unusual, tosaytheJeast,fortheparties, on the .
one. hand, t9f3et out cle~lfJydf;lfined.threshoIQ .standards anQ,onthe.other
hand, deny the untpnthemt:ans to obtain the co nsTste nt application of .
these standards across the bargaJrying unit for the duration of the'
agreement. The college interpretation opens the door to the application of
different standards tor different teaohers. . If there Is no means available to,
the union to enforce the consistent application of these standards the
college Is free to Impose standards different than those sat out in the ..
agreement as long as Iheaffected individuals decline to complain under
article 4,02. This result is counter Intuitive from a labour relations
perspective. More importantly, article 4.01(1) [nowArlicle11.01 AJ
stipulates that "each teacher sl1all have a workload that adheres to the
proVisions of this article". Article 4.01 (1) evidences theintenUon ofthe
parties that the workload standards be applied evenly and consistently
across the bargaining unit. It could never have been intended, therefore,
that "t....nd.arAc. "'d1Uc",ont th. "'n thoe6 p. "'ovldad for In ""rt'lel'" A 01 b'" pnrrr~IHad
'\J c:..IIl _ _ .........;I_UI"\"l'''''''"'J ".t,..... J -.1 ...,....,. J _....... , " "':t" _~,v..".~ _ _~- ;'W'IIJ,Uli.......
under any circumstances,
Whereas it could be argued that the complaInt procedure in article 4.02 is
restricted to indIvidual complaints in respect of the subject matters listed in
article 4.02(3) {now 11.02 C 't] we are content to find that article 4.02(O(ii)
[now Article 11.02 A 6(b)] does not apply where the college. is refusing to
apply a threshold standard that has been the subject ofa prior award under
article 4,02 upholding the interpretation of the standard advanced by the
union.
On an application for judicial reviewto the Divisional Court, the
award was set aside on the ground that in interpreting the extent of its Jurisdiction,
of ARI~lied Acts & T~GhnolQgy_~nd Qntario PUblic S$D1i~ El11ployee~ UniQn~lgl!
(1990) 70 D.L.R.(4th) 494 (Ont. Div. CL).A subsequentappeaUo the Court 'of
Appeal, however, was allowed on the basis that the Divisional Court had erred iq
applying a standard of correctness rather than a standard of Upatent
unreasonabllitt. The Court further determined that the award of the majorltyol
the Board of Arbitration was not patently unreasonable. and that its Interpretation
of the collective agreement was one which the language could reasonably bear.
In the result,the Court found that there was no basis for judicial intervention and
dismissed the application for judicial review: see Boare! of Governors of
Fallshawe College of Applf~M$ and TechnologYJillg~Qnlarlo PubHc SerYlcg
Employees UniofLe.Lal June 8, 1994 (unreported).
The College maintained, however) that the EQn~haweCo"f:g~ award
is distinguishable as that award turned on certain unique facts and that, in
particular, the College had refused to give general effect to the award of a
Workload Resolulion Arbitrator upholding the Union's complaint. Nevertheless, in
this case, although there is no prior award of a Workload Resolution Arbitrator,
there is a decision of a Board of Arbitration appointed under Article 32 which
found, among other matters, that absent an agreement between the College and
the Union under Art[c1f~ '11.01 M, it is not open to the College to assign Professors
(unreported)).
Moreover, while the Ean$hawGCQHeg~ award.of the Burkett Board
certainly relied on the earlier award of the. Workload Resolution Arbitrato(in
finding that the grievance before it was arbitrable) the majority also obselved that
on the College's interpretation, the Union would have no means of enforcing the
threshold standards set out in Article 4.01 (now Article 11.0t) and that th~ parties
could not have intended that standards different from thos€lset out could be
applied in any circumstances.
Moreover, we note that there is another award in which the Board of
Arbitration recognized the limited scope of the procedure for the resolution of
workload disputes set out in Article 11.02: see Onta[i9CoUn~il..9f.Regel11~ fQxthe
Colleges ol8m2lied Ar!sand T ~QIQgy in the form of ~fLQ[ge Brow.oJ,";ollege
and Ontario Public ServJ(;e Employ_e..~s. Union February 7) 1995 (McLaren
(unreported)). That case concerned the application of the ~Qkial Contri;1ct Act
and, in particular, the Cqllege's proposal to schedule unpaid leave days in non-
teaching periods. In that context, an issue arose as to whether the matter ought
to be referred to a Workload Resolution Arbitrator (as proposed by the Union) or
dealt with by a Board of Arbitration appointed under Article 32 (as proposed by
. .
the CoHege), The Board determined that the Issue,whichwasbroc:lderthan any
.. - .
individual facul.ty member's workload. wc\s properly dealt with under Arlicle 32.
The Board ~Iso noted that the process set out in Article 11wa$ not intended to
deal with broad Union policy issues.
In our vlewl similar considerations apply In this case. The issue
before the Board concerns the right of the College to assignworkloads in excess
of 47 hours per week, including overtime, As indicated previously, there is a prior
award in which this issue was determined in favour of the interpretation advanced
by the Union. Moreover, although Article 11,02 provides a procedure for
Individual teachors to refer workload complaints to a Workload Resolution
Arbitrator. the award of such an Arbitrator has limited effect. Furthermore, as
noted in the Eaoshawe ~ollege award of the Burkett Board, if the objection
advanced by the College were to prevail, the union would have no means to
either enforclng or ensuring consistent application of the standards setout in
Article 11.01. We also agree with the Burkett Board that this could not have been
the Intention of the parties, particularly as Article 11.01 A provides that each
Professor shall have a workload which adheres to the provisions of the Article. In
the result, the College's objection to arbitrabillty on this ground is dismissed.
. ..
The next matter to be determined is whetherthe issue raised is the
.,. ..' .",,,,, .
proper subject of a Union grievance as provided In Article 32.10 of the collective ..
agreement. This Article specifies that the Union shall havathe rlghttofiJe a
grievance based on a difference directly with the College relatingtothe
interpretation, application, administration or alleged violation of the agreement .
Such a grievance shall not include any matter upon which an individual. employee
would be personally entitled to grieve and the regular grievance for individual or
group grievances shall not be bypassed except where the Union establishes that
the employee has not grleved an unreasonable standard that is patently in
violation of the agreement and that adversely affects the rights of employees.
There would appear to be no dispute that where the matter]s one in respect of
which an individual employee could have grieved, all three criteria set out in
Art!cle 32.10 must be satisfied in order to find that there is a proper Union
grievance: see ~j~n8Ca College and Ontario PublicService Employees Union
January 31,1991 (P,C. Picher (unrepwt~d)).
In this case, to the extent that the Union alleges that workload
assignments in excess of 47 hours per week, including overtime, must be the
subject of agreement betwe-en the College and the Union, [t may be said that the
grievance involves a difference directly betvMen the I?arties conceming the
interpretation of the agreement in respect of which an individual employee \vould
not be personally entitled to grjeve~ However, even If the issue is viewed (rom
the perspective of the Individu?ll Professors (who could have grieved, but did
not), 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. Whether or not It
does so, of course. is a matter to be determined on the merits as,at this juncture,
the Board is concerned only with the preliminary objections to arbitrabillty
advanced by the College. Moreover, in the Board's view, this case Is
distinguishable from Ont$riop~JI1Hc ServiceEmplQ.~ulnkm and Northern
Colle~ July 9, '1991 (Macdowell (unreported)), which was relied on by the
Collego, which involved the elimination of Co-ordinator positions. In determining
that the issue raised was not the proper subject of a Union grievance, the Board
noted that there was no contractual standard Involved. In tills cass, In contrast,
the Union relies on the express limits on workload set out in Article '11.01 J 1.
, ,
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 .vlolation or, In other words, a
violation which is obvious on its face. Again, however, whelher it does so is a
matter to be determined on the merits. Moreover, although the College
mainlained that as in some cases, the worl<loads of the Professors in question
exoeeded 47 hours by matter of minutesithat is nottrue In all cases and, in fact,
. . . .
at the time of the final aUdlt., Ms. Ness' workload exceeded 47 hours by2.10
. , , '.. - .
. , . ., .
hours per week. In the result, in ourview, the Col/ege'sargumenlwhich is based
on the principle of !1e. minim us DQn CUH}t h~~ does not provide a proper basis for
dismissing the grievance as inarbitrable.
Although the COllege also relied on Article11.01G 2 in support oUts
submission that Professors may agree to workloads In excess of the maximum
numbers of hours set out in Article 11.01 J 11 addressing this argument involves
the interpretation of substantive provisions of Article "11.01 "which we find is
properly a matter to be determined on the merits. Moreover, in our view, the
~eneca College award, which was relied on by the College, is distinguishable.
That case concerned the assignment of duties in the month of July with the
consent of the faculty members involved and in deciding that such assignments
< .
did not constitute a patent violation of the agreement, the Board noted ttlat in an
earlier award, the argument advanced by the Union had been rejected. The
Board In Seneca College award adopted a similar interpretation and, on this
.ba'sis, round that there had been no patent violation of the agreement. In the .
course of the award, the Board also made reference to an award in SirS<:mford
fJ~ming Coll~~..J'md Ontario PUblic Service ErJJP]Qy(:l~$J)JJiQn April 25, 1988
(Brent (unreported)), in which the BOard expressed the view that a patent violation
must be plain or evident on Its face and that it Is notsufflcientforthe .Unlon to
demonstrate that it has an arguable case. Nevertheless, Uls noteworthy that In
..
this case, in contrast to the Seneca College award, the prior award favours the
interpretation advanced by the Union, rather than the College. In the result, Inthe
circumstances of this case, we find that whether the.Union can establish a patent
vl'olatlon of the agreement is a matter more appropriately decIded on the merits,
As to the final criterion set out in Article 32.10 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 that
assignments in excess of 47 hours per week can only be made by agreement
between the College and the Union. Moreover, to the extent that it is alleged that
certain Professors were assigned workloads in excess of the permissible limits
set Qut in Article 11. such work may not then have been available to other
Professors. The Board also notes that two other grievances have been filed
alleging similar violations of the agreemenC 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.
In the result, the College's !:lecondobje.ctlonJoarbltrabUity is
dismissed and the hearing shall be reconvened.to f,ieal with thE3grievance on its
merits. The Board shall remain seized for this purpose.
DATED AT TORONTO, this 5th day of June,1998.
rJ O),/~~_~ ~L.
Chair
See DI5_~i~JltAttached
college Nominee
~flli1LMllr:rmL___.
Union Nominee
DISSENT OF R.J. GALLIVA~
ThiS is a uniongri e'lClnce alleg lri9 that: wheJ) fouraftlployeas
out ot 500 vOluntarily worked paid ove~tlm~ of AS little ~s 5 minutes
pe~ week (oqulYal~nt to 1 minute pe~ day) to meet une~pected 8tud~nt
~nrol1~~nt in diffor~nt programs durlng one gemester, the contract
was violated.
The ~;jajorlty's decinlon allowing th\~ do J1Iinim~l3 mQ.tter to
proceed eftec:Uv~ly delet.eg A~t1(jl", lLU2Afi(b) from the contcact. 'l'haf:.
A~ticle r~8d5 as follOW6:
th'levl:.Illces adsing with l:'espect to Article 11, WorkLoad,
other than 11.01 and 11.02 Shall be handled in acco~dance
with the grievan~e p~ocedure ~~t out in Article 32,
Grievance P~ocedure.
In my view thaL provl~lun l~ ~lea~ Qnct unambiguous - ie the griev~nce
involves A~tlcl€l :U.Ql oc t1.02 it C;;I.rmot t>e dealt with under Article
]2, Griov~nce proceduro, the Artlcl~ und~r which the unidn filed the
grievance beto~e us.
The Majority explaifl3.away that. prahib1tlon by relying on tne
Burkett BwarO In fanshawto~lBge and OPSEU and the fact that the Court
of App6al had let tha~ ~rb1Lration deai6~on stand. HQWever, it is
erroneou~ to cunclude thut the Cuurt ot Appeal's deci8ion meant that
Mr. Burkett's int8~prBtation was the co[roct one - in foct the A~~adl
Court specifically tejected that conclusion (by ovecturning the Divisional
Court's application ot a standard af ~orr~cLnaas) and held unly th~t
the Uurkel,::t. interpl'et.atJ.on \~O!!J 2..~ (implyin9 thel;'e could be oth9'C$) whleh
the languago rea50nably could bear. Obviously theru 1& anQthec int~~-
pretatlon which the langu~ge also cnn beac - that the parties in~ended
-- un UIll;c.:\.uon",blo atandord. whlch is
- patently in violation of the oontraGt. ano Which
adVQl:$fll y affects the I: ight~ ot ~f!1ploye(lfj.
In O\1r r,<'I.S~ it iH <'1r.cepted that IntlivlrJ\,lal emplQyeea could have::
grieved ~u~ didn't.
As the Majority notes, there 15 5ubstantial juri~pr~denc~
under t;.hifl contl'<'lct which hold9 that all three of th~ above elements
mUBt b~ pr~Bent to validate ~ ~nion 9~iBvanao. In th~ case bofore ua,
nune ot them ~xist.
Un('e<<HCHlrl~)l e Standard
To detc,~ine Whother or not a ntandard ia unreasonable it is
first neces3l1.ry to lt1entity Lhe "::it.andat"I1". Oxford defines ,jstj)ndnrd"
a5 a measnre to \~hich othel's conrorm or by o,.:hich accuracy. is jUdged.
The evid~nc~ b~fbre US is that thQ union Cdn idantif~ 9n1y
fuu~ loulahOOS in ~oo whete weekly hours 1n exce'~ of 47 w~~e workad.
While then: Lt;i nu ()bv iout! t.lln'l:'lhold point:., foul': of.~OO Cll.nnQt on its
race bo a Hstanda~dH; the 496 which Co"form to each Dthor obviously
are the 3t.;lnoo.rd. The (Q\U ur-e mor:ecleaLly deviations from standard
practice, in other words a~~ Atypical which Oxford defines ~8 not
confa~Mlnq to type a~ comwnn chara8tQriB~iag - L.Q. not th~ ~tandafd,
Thus the Ha jQrlty ct"l:'S in .concluding thatthea13dgnment of
1\9111"8 1n Q~CeSB of 41 to only tOll.>: grilploY(.H~a .out of $00 is a "standard I,
(lnd that voluntary ovg('tilll(~ of 4.5 littlea,IJone ,minute PQrl;l~y lJiakEl>>
thl'\t ~tandard uunr~<I('jonable'.
PlItf;J.l1t Viallltion
. ........~-,.-
~g the Chair says, a potentvialati6nts one which ~a ~bviou~
on ita fllCQ. But: the lolajot1ty then go on to Bay that Whetheror:r'll,)t:
lhaca has been a pat~nt violatIon In th18 cnne can only be dHtermined
by a further hearing on the i56ue. Thqt 1s a contrAdiction in logic.
]: f t.he alleged v ~<.)latilJn i 8 not so obv It)U$ on i.tl1face that it l:eLjul(~9
further hea~in9s and evidoncQ to determino thfl matter, thgn it cannot
bo l(l;b~lled ~ "pal,:/,wt violil.t tun". rf Lhote 1$ not l1 p~tBnt v iul.;il:.ion
then the union oannot 9(luVH urider Ar&lcle12.10.
In Northern C;Ql1egB and oPsr;u, .July 9. 1991 (MacDowall)
(\lnreported), thE] arbj tratO'1.' dei' IUe1'l wh~t i9 rtll~ant under this contract
by a "p{'lt~nt vloltlti..oi1" I
...^~ tho caeea to which wg w~~e rere.>:r~d 1~dicnte, to
meet the ~egulrementB for a union 9~ievancc th~re ~~e~
be r;II)rrLGt.h in9 !nore than ju~t an l'ar9ullblc" l)J:c(J(]h of th~
@mployarl3 contractual obllgationn. Such b,~ach must
constitute ~ patent violatlort Ofth~ agreement - that is
One thut la ObvioUG, ~anitest, conspiovoUH, plaln self-
evidont. Olear on its lace atld 8uhstantially boyond
diapnte....
Se~ also ~eC<l CQll€<]e and Oll::;!:ill.~ 89L}.)2 5 (P. Picher)( un~epO\:'ted)
Hhero the at:bHra!:.or quot~ti wi.th apflt:ov.C11 [rom sir St'1!.OfO'rd Flecn~
and OPSRU (Brent)l
ill {JUL' ...hl...... 1n 01:(11':1' fot' a violation ot the coll~ct:.i.ve
dl)n:"ewent. Ln be C~] led "!;'h'ltent" it muat be ev'tdent or
plftin on its ra~e that there has beon a vi014tion of the
ary~~~ment. Tha~ 1~, it is no~ SUfficient that tho ~niQn
can show th~t arguobly it h~a a case whiCh could be a
violation of tho cDll~ctlve agreement depending on which
of two re~svnably possible int.etrretat1oos are acc~ptedJ
but raLhOT Lh~L Lhc~e hU8 b~Bn a cloa~1 evident and plain
vialat1(\n 0f t.hp. r:olla(:r.iv~ Agreement.
While the union in the matter before UBl'nay have an. a. r9 l.Iable
caSB tha.t 47 hours is a maximUill nover to beexocodad undetany
circumstances, it 1$ at be~t on1y argu~ble9iYenthe alt~~natiye
equa.lly ~rguable interpi;'etation uf the <;ontr:aot:.aClvanced by the
College. There must be mo~e thAn juaL ~n ar9UOblebre~gh lor~he
violation to be "patent". Howev!;!!;' I ~lw..:ti:.. the Majority hol';)s t.hat it
must hear further evidence ~nd argument about each party I s ar.gli~ble
case, it is in effect concluding that the alleged breach is not 11
patent one. On that bnsis ~dr)IlR om: Board lacks jut!adietion to
proceed further,
Affect 02l..~plove_~~
'rhe floHl c~ite~ibn in ^rticle 32.10 is ~hat the un~ea5ortnble
atandara which 18 patently in violation of the 89reernent must be one
whtch "advetsely affects ~ho ~i9htg ot employeesn. (Note that at p.30
the NajoJ;ity lllt~t::prets this as if the Act!cle -read: I'll mattel.' of
concern to the union". It ts Hell e8tablish~d in labour: relati.ons that
a unlon'g intnrests and empldyees' rights don't a10~Ys coincide.)
The ~Hlilln 's wiLnc:ss 1.arry Olivo ,;me Uhable to point to .::lny
actu~l or sp~~lfie uuvorge aIfects uO eMpl01ee~ - his fea~s were ~11
~pec.ulativH, that if the l.'ullog8 did thin (exceeded 47 hours) \'iith
t.h<:.lIH! fau!;', it mlght. do ElO 10l:: ~11 !jOO. In any ~v",nt, the ar\Jument:. of'
advorse affect on employe.. cannot b~ made in th~ ei~curn5tance5 of thi3
case where under Article 11overtiroe i5 entirety volunta~y (seo for
example 11.01Jl and 11.OlJJ) nnd where any poseible adverse affect thUG
can be totally ovoided by the exerci~e Of employe~ discretion.
ThUS not one or th9 requirements for permittinq a union
grievance under ActiQIC 32.10 has been meL, yet the cont~oct requites
that <'1.11 three be sat.isfied before we h~Ve jurii5dicticlJI to hea.r Bu'Oh
a grievance. The college's prelimlnacy objection there~ore Should bo
sUotaioe(l.
J realize q\l;,t; tn the vie\'{ of t,he f<l<ljority (.;elying 011 the
Butl<.ett awa:rr,1 in F,a,n~h{1we mi:!ntioned above) 8u~h .;1oon[Jlusion i.1i
\.maooBfltablo because it 1,0,10111 d preclude the union from grieving in th~
circuMstances nf this case wHerBindlvidual emploYElos h<<.ve oot grieVe",
HOweVer, it should be UtlfHH':E::!l::IB,U'Y to have to point out thaI:: by t:lffc.;Jt.:."
i.vely delating Articles tl.02A6(b) a~d 32.~O ~rom the a~reement,tbe
Majority ~iolatea Article 32.040 which re~dB.
Th~ arblt~ation board shall not be authoriz~d to alter,
modify OC amond any part Of the t~rm6of thla Agroament
nor to mak~ I;WY 'ledl'lion inconsistent trhnrewithi l'ior .t.o
deal with any matter that. is not a proper H\Att:.ar for
grievance under th18 AyrH~mAn~. .
If thn union ia unwilling to live by the tBrmB of the agraernent it
has negotiated, an arbitration boftrd cannot alrnply delete the ~hunnod
conditions - that'g for collective bu~~~lnlng, not arbitration.
-f~JkW~