HomeMy WebLinkAboutUnion 01-11-10
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IN THE MA TIER OF A WORKLOAD ARBITRATION
BETWEEN:
GEORGE BROWN COLLEGE OF APPLIED ARTS AND TECHNOLOGY
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- The Employer
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION,
LOCAL 556
- The Union
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AND IN THE MA ITER OF multiple Union workload complaints
Workload Resolution Arbitrator:
Howard Snow
Appearances:
On behalf of the Employer:
Douglas K. Gray
Nancy Hood
David Ivany
- Counsel
- Executive Director, Human Resources
- Management Co-Chair, College Workload
Monitoring Group
On behalf of the Union:
Robin Gordon
Tom Tomassi
Jennifer Stellings
Damian Wiechula
- Grievance Officer, OPSEU
- President, Local 556
- Steward and Member, College Workload
Monitoring Group
- Union Co-Chair, College Workload
Monitoring Group
Delynne Struyk
Hearing held April 19, July 4 and September 5,2001, in Toronto, Ontario.
AWARD
1. INTRODUCTION
In this case the Union referred some 38 complaints regarding the workload of its members
for workload resolution arbitration.
The Employer did not attend the first day of hearing. The matter proceeded in the absence
of the Employer.
Following the first day of hearing the Employer requested a hearing to argue that I did not
have jurisdiction to address the Union complaints. I issued a letter decision (reproduced
below) that I would reopen the hearing for the sole purpose of considering the Employer's
objection. At the subsequent hearing the Employer submitted that a workload resolution
arbitrator has no jurisdiction over complaints brought forward by the Union, as distinct from
workload complaints initiated by a teacher in the bargaining unit.
This award deals with three issues:
I. The reasons for proceeding on the first hearing day in the absence of the Employer;
2. The question of whether a workload resolution arbitrator has jurisdiction to hear
Union workload complaints, as distinct from workload complaints referred to
arbitration by an individual teacher; and,
3. The workload complaints themselves.
II. THE EVIDENCE
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I note that this award is not being issued in the time frame (ten working days) specified in
the collective agreement. At the September 5 hearing the parties agreed to waive the time
limit for issuing this award and I thank them for doing so.
Proceeding in the Absence of the Employer
It is necessary to provide considerable background information regarding the decision to
proceed in the absence of the Employer on the first hearing day.
I have served as a workload resolution arbitrator for these parties over a period of four years.
For most of this time hearings were scheduled by Madeline McCarthy, the secretary to the
College Workload Monitoring Group and an employee of the Union. Normally Ms McCarthy
would telephone, advise that a hearing was required, and ask about my availability. She and
I would note two or three days when both the Union and I were available and she would then
discuss those days with the Employer. She often advised me of an agreed hearing day within
hours of her first telephone call. In any event, the process of scheduling a hearing was
normally completed soon after Ms McCarthy's first call.
Recently the scheduling of these matters has become more difficult. Ms McCarthy continued
to obtain dates from me in the manner outlined above. However, Ms McCarthy would
sometimes telephone several days after her first call to advise that the Employer had not
responded to requests for information about its availability on those dates, or the Employer
had indicated it was unavailable for a hearing then, but was unwilling or unable to indicate
when it would be available for a hearing.
~-, On occasion Ms McCarthy had called to indicate that she was abandoning her efforts to
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schedule a hearing and that she was turning the matter over to Damian Wiechula, Union co-
chair of the workload monitoring group. Mr. Wiechula then scheduled the hearing.
Both Ms McCarthy and Mr. Wiechula had communicated to me their frustration with the
recent difficulties they had encountered in scheduling workload arbitration hearings.
Based on the above, I addressed the issue of scheduling workload arbitration hearings with
the parties. At another hearing in February 2001, I raised my concern that scheduling
hearings had become more difficult, asked whether the parties shared that perception, and
inquired as to suggestions for improvement. Damian Wiechula represented the Union and
David Ivany represented the Employer. They are the two co-chairs of the College Workload
,
Monitoring Group and the usual representatives of the parties at workload arbitrations. I
indicated that the collective agreement included a time limit for a workload arbitrator to
begin the hearing and I noted that the time began with the referral to arbitration. In Article
11.02 F 5 the collective agreement states that the workload arbitrator "shall commence1t the
hearing within two weeks of "referrall1. I advised the parties that under the system described
above I did not think Ms McCarthy's normal inquiry about my availability was a referral and
that the "referral" of workload matters occurred only when I was informed of the specific
comp laint( s) to be heard. I indicated that I was satisfied to continue with the current system.
However, if there was an expectation that I should enforce the two week time limit in the
collective agreement, I advised that the workload matter would have to be clearly referred
to me, not simply an inquiry made as to my availability. No resolution was reached
regarding scheduling future hearings.
April 9, 2001 I received an e-mail message from Damian Wiechula, the Union's co-chair of
the workload monitoring group. It was cogied to David Ivany, the Employer co-chair ofthe
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workload monitoring group. This and the e-mails which follow are reproduced as written,
although the e-mail addresses have been deleted. Part of that message follows:
From: 'lOPSED Local 556" <opseugbc
To: "Howard Snow"
Cc: "Dave Ivany" <divany
Subject: FW: Workload Arbitration Issues
Date: Mon. 9 Apr 200112:37:22
Howard, I am herewith formally submitting the following items to you to be scheduled for
Workload Arbitration Hearing(s). As you will note from the e-mails below, we have
attempted to resolve these issues at C.W.M.G. were rulable to do so due to management's
inability to have quorum for a meeting.
Dave has not gotten back to me with his dates of availability for W.R.A. hearing( s), so I am
officially asking you to schedule a hearing(s). I would like to propose next Monday April
16th as a possible date for this hearing.
Please advise.. ... ,-\
,.---...,
The message then reproduced the list of cases contained in Mr. Wiechula's April 2 message,
below. C.W.M.G. refers to the College Workload Monitoring Group.
Mr. Wiechula had attached an exchange of messages he had with Mr. Ivany. Those three e-
mail messages were as follows:
April 2. 2001
To: Dave Ivany
Subject: Workload Arbitration Issues
Dave, due to the fact that we were ul)able to schedule a C.W.M.G. meeting in a timely
fashion, the following issues will have to be forwarded to Howard Sno",:, for a ruling:
1. Graphic Arts: The following faculty may have participated in student recruitment and are
entitled to additional compensation as per the C.W.M.G. agreement on March 16,2001:
Dale Atkinson, Tracy England, Annette Hemerick and Loraine Wright. The following faculty
are missing promotional and! or divisional meeting time and may be in an overtime situation:
Dale Atkinson, Tracy England, Ian Gregory, June Handera, Annette Hemerick, Noreen
McGibney, Giles Morin, John Ward, Elvie Weelink, Douglas White, Lorraine Wright and
Peter Lawrence. The following faculty are probationary and may be. or are in an overtime
situation: Tracy England, Mark Critoph, Ian Gregory. Annette Hemerick, Peter Lawrence and
Lorraine Wright.
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2.) Hospitality - Still missing S.W.F.'s from ten faculty: Jane Drennan, Tom Gibson, Ian
Grady, Geoffrey Lough, Helen McIlwraith, Reeves Miller, Bjorn Rasmussen, Nelson
Reynolds, Susan Verburg and Edward Wright.
The following faculty have overtime with no notice given to the union: Claudio Lewkovicz
at 47.97hrs and Mary Vrabel at 45.75 hrs.
3.) Faculty Participation in Selection Committees (unswfed).
4.) Response on last autumn's S.W.F./Timetable audits.
Please inform Madeline (ext. 2200) of "your availability, so that she can confirm dates with
Howard Snow.
Thanks
Damian Wiechula, Co-Chair, C.W.M.G.
2001/04/04
To: Dave Ivany
Subject: FW: Workload Arbitration Issues
Dave, I am disappointed that I have not heard back from you on these issues. If you have not
contacted Madeline by 2PM today with possible dates for WRA hearings, I will have
Madeline submitted the issues directly to Howard Snow.
April 05, 2001 8:05 AM
To: opseugbc
Subject: RE: Workload Arbitration Issues
Damien, I have not been in the office and therefore not been in a position to investigate these
matters for resolution or to reply. I will be in this afternoon and tomorrow and will provide
a reply at that time.
Dave
Regarding the collective agreement requirement that the workload resolution arbitrator
commence the hearing within two weeks of the referral (Article 11.02 F 5), in this instance
the April 9 e-mail was the referral, such that I was required to begin the hearing by April 23,
2001, unless the parties agreed to a later date.
I replied the next day (April 1 0) to both Dawian Wiechula and Dave Ivany, the two co-chairs
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of the workload monitoring group and the two usual representatives of the parties at the
workload arbitration hearings. My message was:
Sent: 2001/04/1 0
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To: "Damian Wiechula", "Dave Ivany"
From: "Snow Arbitration and Mediation Inc.t1
Subject: Scheduling Workload Arbitration Hearing
Gentlemen:
I am responding to Damian's e-mail of April 9 in which he referred several workload
complaints to me for resolution.
Under the collective agreement I am to schedule a hearing within 10 working days - that is
by April 23 . Damian has suggested Monday April 16. I am available all that day. I thus ask
Dave to advise me whether he is available; if Dave is available the hearing will be that day.
Dave, if you are not available on Monday April 16 I ask that you promptly advise me of any
other days between now and April 23 that you are NOT available.
Howard Snow
Mr. Ivany promptly replied as follows, copying the message to Nancy Hood, the Executive
Director, Human Resources, at George Brown College:
From: "David Ivany" <divany
To: "Snow Arbitration and Mediation Inc."
"Damian Wiechula" <opseugbc
Cc: <nhood
Subject: RE: Scheduling Workload Arbitration Hearing
Date: Tue, 10 Apr 2001 10:55:42
Howard, the college takes the position that these issues represent an inappropriate and
untimely referral to WRA. I will be proposing to the Union a couple of near dates to review
these issues at WLMG as they have not been brought to that table for discussion and possible
resolution. ~,
Notwithstanding, I am not available on April 16th.
David Ivany
I replied to the parties:
Tuesday, April 10, 200111:41 AM
To: David Ivany; Damian Wiechula
From: t1Snow Arbitration and Mediation Inc. n
Subject: Scheduling Workload Arbitration Hearing
Dave,
Should the parties agree that they do not now wish to schedule a hearing, that is fine with me.
However, failing such an agreement I am required to commence proceedings within two
weeks of April 9, the day of referral (see Article 11.02 F 5). At that hearing the College is
entitled to take whatever position it wishes, including objecting to the appropriateness and/or
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timing of the referral. Since you are not available on April 16, could you respond to my
earlier request to indicate any other day(s) between now and Apri123 on which you are NOT
available, or are you available ALL other days?
Thanks, :}
Howard Snow
On April 12 I received the following message from Madeline McCarthy:
,.--.,
From: "OPSEU Local 556" <opseugbc
To: "Snow Arbitration and Mediation Inc."
Cc: "Dave Ivany"
Subject: RE: Scheduling Workload Arbitration Hearing
Date: Thu, 12 Apr 2001 08:47:47
Howard, Damian is willing to extend the date of the hearing to the week of April 23rd. and
he is available every day that week. Please let us know which date you have chosen for the
hearing(s).
Thanks
Madeline McCarthy
I replied to the parties:
2001/04/12
To: opseugbc; Dave Ivany
From: "Snow Arbitration and Mediation Inc. 11
Subject: Workload Arbitration Hearing
The Union still wishes to schedule a hearing in this matter, although it has agreed to extend
the time frame for a hearing to April 27.
I would prefer to find an agreeable date within this period. However if this is not possible I
will set a date.
For the week of April 16, I am available April 17 and 19. For the week of April 23, I am
available on April 25 and 26. I understand that the Union will accommodate any ofthose
dates.
Dave, please reply to these dates as soon as possible. I wish to fix a hearing day soon.
Howard Snow
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Mr Ivany replied as follows, again advising Nancy Hood, the Executive Director, Human
Resources:
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To: II Snow Arbitration and Mediation Inc.", opseugbc
Cc:nhood
Subject: RE: Workload Arbitration Hearing
Date: Mon, 16 Apr 2001 09:53:11 -0400
Howard, I am away from the College from April 20 until April 30/2001.
David Ivany
April 16 I scheduled the hearing and advised the parties:
2001/04/16 11 :57 AM
To: David Ivany; Madeline McCarthy; Damian Wiechula
From: "Snow Arbitration and Mediation Inc.U
Subject: Thursday April 19 Workload Arbitration Hearing
As Dave is away the week of April 23, I have scheduled a Workload Arbitration hearing for
9:00 am Thursday April 19, 2001. The cases to be heard are those listed by Damian in his
previous e-mails.
I ask Madeline to book a suitable meeting room on campus and advise us of the location.
Finally, the order in which the cases are heard is at the discretion of the Union. However,
if the Union intends to follow an order gifferent from that listed in the e-mails, I would direct
the Union to advise Dave and me of the new order by noon Wednesday, April 18, 2001.
Howard Snow
Ms McCarthy booked a meeting room and notified the Employer and me of the location.
Mr. Ivany replied as follows, with a copy to Nancy Hood:
From: "David Ivanyu
To: II Snow Arbitration and Mediation Inc.t1
"David Ivanytl
"Madeline McCarthytl
rtDamian Wiechula"
Cc: nhood
Subject: RE: Thursday April 19 Workload Arbitration Hearing
Date: Wed, 18 Apr 2001 08:41:09
Howard, this is to advise you that the College is not in a position to proceed to Arbitration
:;)
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on the 19th. The short notice has not allowed for adequate preparation nor has the necessary
resources be notified. I have been out of the office for the past week and only received your
notification this morning. I advised you of my vacation next week but that was not to imply
availability tomorrow. I have available dates May 2,3,4,9,or 10.
Dave Ivany
I replied that same day (April 18) to Mr. Ivany, Mr. Wiechula and Ms McCarthy:
2001/04/18 11: 17 AM
To: David Ivany; Madeline McCarthy; Damian Wiechula
From: "Snow Arbitration and Mediation Inc."
Subject: Thursday April 19 Workload")Arbitration Hearing
I have just received Dave's message from this morning.
Dave advises that the College is not in a position to proceed to arbitration on April 19.
Under your collective agreement, I am required to "commence proceedings" (see Article
11.02 F 5) within two weeks of the referral and the referral was made Monday April 9. The
last day for a hearing is thus April 23. As I advised you April 12, I am not free on the 20th
and Dave is away on the 23rd.
To review the process, afterreceiving the referral, on April 1 0 I suggested a hearing on April
16 and I asked Dave to indicate any days on which he was NOT available. On April 1 0 Dave
indicated he was not free on the 16th but he provided no other suggestions as to a hearing
day and did not indicate any other day( s) upon which he could not proceed.
On April 10 I again asked Dave for information about dates. Dave did not reply.
The Union indicated on April 12 that it wished to proceed. I suggested on April 12 the days
of April 17, 19,25 and 26. Dave advised me on April 16 that he will be away April 20 to 30
but once again said nothing about any other days. As I had already indicated my
understanding that the hearing must Begin by April 23, on April 16 I thus scheduled the
hearing for April 19 the last available day under the agreement, and a day about which Dave
had expressed no concern.
As I have stated to you in the past, the parties are of course able to agree to a date outside the
requirements of the collective agreement. The parties have not done so in this case.
I have scheduled the hearing as I am required to do. The hearing is scheduled for 9:00 am
Thursday April 19, 2001 in Room #C234, 160 Kendal Ave.
It is not possible for one party to unilaterally cancel a hearing.
However, ifboth parties agree to cancel the hearing scheduled for April 19, please let me
know today.
Howard Snow
There was a series of telephone calls and e-mail messages later that day (April 18). The
Union checked my availability for other d'!tes and I was informed that the parties attempted
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to find another day that was acceptable to both the Union and the Employer. The parties did
not agree on another day and they did not agree to cancel the hearing.
<-)
The following morning (April 19) I arrived at the meeting room early and met Dave Ivany
coming into the building. We greeted one another. Dave Ivany then informed me that, as
I recall his words, "the College won't be at the hearing this morning", and he continued into
the building.
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Tom Tomassi, the President of the Union Local, and Jennifer Stellings, a Union member of
the workload monitoring group, were present at the hearing at 9:00 am but the Employer was
not in attendance. I advised the Union of the statement Mr. Ivany had made to me a few
minutes earlier and the Union provided me' with a copy of an Employer e-mail from Nancy
Hood from the previous day indicating that the Employer would not attend. The e-mail was
as follows:
From: Nancy Hood
Sent: Wednesday April 18, 2001 5:45 pm
To: opseugbc
Cc. divany
Subject: RE: W.R.A. HEARING
Damian, the College has already communicated that we cannot attend on the 19th. Therefore,
we will not be in attendance at any WRA on the 19th. Furthermore, we are still looking at our
options with respect to the 27th and we will be communicating with you with respect to that
date and with respect to the process. Nancy Hood
(j
The Union asked me to proceed. I suggested that I first telephone Mr. Ivany and Ms Hood,
advise them of the hearing, inform them that the Union wanted me to proceed, invite their
attendance, and indicate that at 10:00 am I would consider the request from the Union that
I proceed in the Employer's absence. The Union agreed to this.
~,~-,
I called Mr. Ivany and reached his voice mail; his voice mail message indicated that he was
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on campus all day April 19 but temporarily unable to answer his telephone. I left a message
for him advising that the Union wished me to proceed with the arbitration hearing. I advised
him that I had decided to first call him and Ms Hood and that at 10:00 am, if no one from the
Employer was present, I would consider the Union request to proceed without the Employer.
I then telephoned Ms Hood, got her voice mail, and left her a similar message.
~)
No representative of the Employer attended. At 10:00 am I reviewed with the Union the
history of setting the date for the hearing by providing a summary of the evidence which is
included above, including my voice mail messages for Mr. Ivany and Ms Hood. The Union
asked me to proceed. I then made the decision to proceed with the hearing in the absence of
the Employer.
,---.
The Workload Complaints
Workload for College teachers must be assigned some six weeks before the start of the term
using the standard workload form. In previous years the parties jointly conducted what they
termed an "audit" of the workload assignments once all the assignments had been made.
About one year ago the Employer ceased its participation in that audit process. The Union
now conducts a similar review of workload using the standard workload forms; these
complaints were matters which came to the Union's attention during its review ofthe winter
term workload assignments. Although some 38 complaints were originally referred for
arbitration, some had been resolved prior to the hearing and were not pursued before me.
1. Graphics Design Department Complaints
~ Jennifer Stellings, a member of the Graphics Design department and a Union member of the
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workload monitoring group provided most of the evidence for the Union and she identified
the standard workload forms which the Employer had issued for the winter 2001 term.
a) Student recruitment not included in calculating workload ~ numerous teachers
The Graphics Design department conducts interviews with prospective students as part ofits
student recruitment process. In the winter term of 200 I many of these meetings were
conducted by teachers who were members of the Union's bargaining unit. The Union said
this work had been inaccurately reported on the standard workload forms for several
teachers. I was advised that there had been a proposal to pay teachers $20 per hour for this
student recruitment work but that proposal had been dropped. The Union said there had been
at least a tentative agreement at the workload monitoring group to pay overtime to those
teachers who would be in an overtime position if this work was included on their standard
workload forms, but nothing further had come from that. Ms Stellings said that the
department had an accurate record of who had done which student recruitment interviews
and how long the interviews had lasted. The Union did not have that evidence available at
the hearing.
b) Promotional and departmental/divisional meetings not included III calculating
workload - 12 teachers
Also in Graphics Design, Ms Stellings said that all teachers were expected to attend both
promotional and departmental/divisional meetings. Ms Stellings noted that 13 teachers in the
department (Southern, Meikle, Kinney, Kidd, Johnson, Inoue, Field, Drummond, Darrah,
Critoph, Chretien, Chong and Stellings) received credit on their standard workload forms for
both types of meetings. However, nine other teachers (Lawrence, White, Ward, Morin,
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Mcgibney, Handera, Gregory, England, and Atkinson) had credit for one type of meeting but
not the other and three teachers (Weelink, Hemerick, and Wright) had received credit for
neither promotional nor departmental/divIsional meetings. The agreement requires that the
form record all work. Some teachers may be in an overtime position if the work is included.
c) Probationary teachers may be in an overtime situation which is not permitted - 7
teachers
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Next Ms Stellings said that some workload complaints concerned probationary teachers in
Graphics Design. She noted that the collective agreement included a maximum workload
for probationary teachers of 44 hours per week. While the standard workload forms for those
probationary teachers did not show an as~ignment of more than 44 hours per week, when
corrections were made for work such as student recruitment interviews, promotional
meetings and departmental/divisional meetings, some probationary teachers were over the
allowable maximum. Ms Stellings testified that seven probationary teachers (England,
Critoph, Gregory, Hemerick, Lawrence, Wright and Johnson) were over the 44 hours
allowable maximum weekly workload once their workload was properly calculated.
With respect to Tracy England, Ms Stellings said her standard workload form was missing
credit for promotional meetings, student recruitment and a student show and that the time
allowed for student counselling was too litt,Je. Ms Stellings said Ms England's true total was
45.06 hours plus the amount for student recruitment. Ms England's standard workload form
recorded no time for student recruitment.
With respect to Mark Critoph. Ms Stellings said he had not previously taught the course
GHUM 1101 and therefore his preparation factor should be higher. With that correction, Ms
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Stellings said his total workload would be 44.996 hours per week, plus any missing hours for
student recruitment. Mr. Critoph' s standard workload form now recorded 2 hours per week
for student recruitment.
With respect to Ian Gregory, Ms Stellings said the addition of the normal 0.5 hours for
promotional meetings would put his wor~load at 44.05 hours plus any missing hours for
student recruitment. Mr. Gregory's standard workload form recorded 2 hours per week for
student recruitment.
/----..
With respect to Annette Hemerick, Ms Stellings said the addition of credit for the
promotional meetings, the departmental/divisional meetings, a student show and academic
advisement brought her total to 46.85 hours, plus any missing hours for student recruitment.
Ms Hemerick's standard workload form recorded nothing for student recruitment.
With respect to Peter Lawrence, Ms StelJjngs said the addition of credit for promotional
meetings brought his hours to 44.39 plus any missing hours for student recruitment. Mr.
Lawrence's standard workload form recorded nothing for student recruitment.
With respect to Lorraine Wright, Ms Stellings said the addition of credit for promotional
meetings, departmental/divisional meetings and academic advisement brought the total to
47.10 hours plus any missing hours for student recruitment. Ms Wright's standard workload
form recorded nothing for student recruitment.
Ms Stellings said that Geraldine Johnson was also a probationary teacher, although the
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standard workload form the Employer had issued to her did not indicate that fact. The Union
r, noted that it had not mentioned Ms Johnson in its earlier memos but that it wished to add her
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to the list of probationary teachers who were over the workload limit. Ms Stellings said that
with respect to Ms Johnson the preparation factors for both her courses were wrong and
should be changed to reflect new preparations. With the change in preparation factors, plus
the addition of credit for a student show, her total would be 44.15 hours plus any missing
hours for student recruitment. Ms Johnson's standard workload form recorded 2 hours per
week for student recruitment.
2. Hospitality Department Complaints
a) Employer has not issued standard workload forms - 4 teachers
.,~'---"'"
Mr. Tomassi, the President of the Union Local, and Ms Stellings said that as of April 19,
2001, the Employer had not provided standard workload forms for all teachers in the
Hospitality department. They said the Employer had not yet issued the forms for the
following four faculty: Helen McIlwraith, Bjorn Rasmussen, Nelson Reynolds and Edward
Wright.
b) Union not notified of overtime assignments - 2 teachers
...:'".)-
The Union representatives also said that two members of the Hospitality Department had
been assigned overtime but that the Employer had not notified the Union in advance or at the
time of the assignment. Claudio Lewkovicz had been assigned 47.97 hours and Mary Vrabel
45.75 hours.
3. Faculty participation on selection committees
C)
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Mr. Tomassi said that in the past the parties had agreed upon and followed a protocol for the
participation of faculty on selection committees for the hiring of new teachers. Mr. Tomassi
said that the protocol had broken down. oMr. Tomassi said that staff in the Employer's
Human Resources department had recently informed the Union that the Employer was taking
the position that teachers' involvement in selection committees was a voluntary activity and
that the Employer would not pay faculty to participate nor include their participation on the
standard workload forms. Mr. Tomassi said that although the Union did not know if the new
policy had been implemented, the Union believed that the proposed change would be a
violation of the agreement.
4. Implementation of an earlier award
c/~.......
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Finally, Mr. Tomassi indicated that the Employer had not implemented an earlier award
(George Brown College of Applied Arts and Technology and Ontario Public Service
Employees Union, Local 556 (March 13,2001), unreported (Snow)) regarding a number of
workload problems from the fall term of 2000. Mr. Tomassi asked me to address those
concerns and finalize my award.
I advised the Union that I had no authority to proceed on this matter that day. Unlike the
other issues being raised, this complaint had not been referred to me April 9, 2001. Although
I was required to begin a hearing within two weeks of the referral of a workload complaint,
h
I noted that there was no similar proviswn requiring a workload arbitrator to hold the
continuation of a hearing within two weeks.
Mr. Tomassi said the Union would not pursue the issues regarding the implementation of the
March 13 award that day. Should the Union decide to do so, it would request a separate
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hearing.
III. PROVISIONS OF THE AGREEMENT
These complaints were pursued to arbitration under the expedited workload arbitration
provisions of the 1996-2001 collective agreement between the Ontario Council of Regents
.':':;;
for the Colleges of Applied Arts and Technology and the Ontario Public Service Employees
Union. The key provisions of that agreement are as follows:
Article 11
WORKLOAD
11.01 A
Each teacher shall have a workload that adheres to the provisions of this Article.
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11.01 B 1 Total workload assigned and attributed by the College to a teacher shall not exceed
44 hours in any week. .
11.01 E 3
The number of students in a course or sectionshall be reviewed after the enrolment audit dates and
not later than the completion of the course or section. . . and revised where appropriate.
11.01 J 1 . . . overtime worked by a teacher shall not exceed one teaching contact hour in any
one week or three total workload hours in anyone week and shall be voluntary.
11.01 J 2 . . . Such workload hours agreed to in excess of the 44 hour weekly workload
maximum shall be compensated at the rate of 0.1 % of annual salary. . . .
11.01 J 4 Probationary teachers shall not be assigned teaching contact hours or total workload
hours in excess of the maxima under any circumstances.
11.01 M Where a Union Local and a College agree in writing on terms governing workload
assignments at the College, such agreements shall be binding on the College, the Union Local and
the teachers and timetables shall be established in accordance with such local agreements.
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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
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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.
11.02 A 1 (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 in 11.02 Bland if necessary, the
Workload Resolution Arbitrator (WRA) referred to in 11.02 Eland 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 three
working days from date of receipt of the SWF.
11.02 A 6 (a) In the event of any difference arising from the interpretation, application,
administration or alleged contravention of 11.01 or 11.02, 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. . .
Failing settlement of such a complaint, a teacher may refer the complaint, in writing, to the WMG
within seven days of receipt of the immediattfsupervisor's reply. The complaint shall then follow
the procedures outlined in 11.02 B through 11.02 F
11.02 A 6 (b) Grievances arising with respectto Article 11 , Workload, other than 11.01 and 11.02
shall be handled in accordance with the grievance procedure set out in Article 32, Grievance
Procedures.
11.02 B 1
There shall be a College WMG at each College.
11.02 B 2 Each WMG will be composed of eight members, with four to be appointed by the
College and four appointed by the Union Local unless the College and the Union Local otherwise
agree. ... A quorum shall be comprised of four, six or eight members with equal representation
from the College and Union Local.
11.02 C 1
(i)
(ii)
(iii)
(iv)
(v)
- 19 -
The functions of the WMG shall include:
reviewing workload assignments in general at the College and resolving apparent
inequitable assignments;
reviewing specific disputes pursuant to 11.02 A 4 and/or 11.02 A 6 (a) and where
possible resolving such disputes;
making recommendations to the College on the operation of workload assignments
at the College;
reviewing individual workload assignments where requested by the teacher or the
Union Local and, where possible, resolving the disputes;
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 in
accordance with 11.02 G in order to address particular workload needs at the College.
11.02 D 2 The WMG shall have access to all completed SWFs and such other relevant workload
data as it requires to review workload complaints at the College.
11.02 D 3 The WMG or any member of it may require the presence of the supervisor and/or the
teacher before it to assist it in carrying out its'Tesponsibilities.
11.02 D 4 Any decision made by a majority of the WMG with respect to an individual workload
assignment shall be in writing and shall be communicated by the College to the teacher, the
supervisor, the senior academic officer at the College and the Union Local President as soon as
possible after the decision is arrived at.
11.02 D 5
involved.
Such decision shall be binding on the College, the Union Local and the teacher
11.02 E 1 Iffollowing a review by the WMG of an individual 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.
o
11.02 E 2 If the teacher does not refer an assignmentto the WRAwithin one week of the receipt
by the teacher of notification by the WMG that it has been unable to settle the matter, the matter will
be considered to have been settled.
11.02 F 5 A WRA shall determine appropriate procedure. The WRA shall commence
proceedings within two weeks of the referral of the matter to the WRA. It is understood that the
procedure shall be informal, that the WRA shall discuss the matter with the teacher, the teacher's
\')
..--------.."
- 20-
supervisor~ and whomever else the WRA considers appropriate.
11.02 F 6 A 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 assigmnent.
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 WM G or award of the WRA is subject to grievance or any
other proceeding.
11.02 G
concerned.
It is recognized that speedy resolution of workload disputes is advantageous to all
Article 32
GRIEVANCE PROCEDURES
Union Grievance
32.10 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.
The following provisions of The Colleges Collective Bargaining Act are also relevant:
46 (1) Every agreement shall provide for the final and binding settlement by arbitration of all
differences between an employer and the employee organization arising from the
interpretation, application, administration or alleged contravention of the agreement
including any question as to whether a matter is arbitrable.
(2) Unless an agreement otherwise provides for the final and binding settlement of all
differences between an employer QIld the employee organization arising from the
interpretation, application, administration or alleged contravention of the agreement, the
agreement is deemed to include a provision to the following effect:
- 21 -
~.
Section 46 (2) then provides a detailed process leading, in the normal situation, to a three
person arbitration board.
IV. POSITION OF THE UNION
Proceeding in the Absence of the Employer
At the April 19 hearing the Union submi!ted that I should proceed in the absence of the
Employer. The Union said that if the Employer was not prepared to fully argue these
complaints, the Employer could still have attended the hearing and sought an adjournment.
The Union submitted that the Employer was attempting to frustrate a duly constituted
process. The Union said that in recent months the Employer had frequently declined to set
dates for workload monitoring group meetings and, when dates were set, often cancelled
those meetings on short notice. The Union submitted that the April 19 hearing was properly
scheduled. It was clear the Employer had been advised of the hearing and was deliberately
staying away. The Union suggested the Employer's absence was another attempt to frustrate
o
the Union's efforts to enforce the collective agreement. The Union asked me to proceed with
the hearing.
Jurisdiction
As noted, the hearing was reconvened to deal with the issue of jurisdiction. The Employer
had sought the hearing to argue that a workload arbitrator did not have jurisdiction to hear
Union initiated workload complaints. The Union submitted that I did have jurisdiction.
!;)
- 22-
The Union reviewed the history of the workload provision. The 1982-84 collective
agreement had included a workload provision but it contained no workload formula. That
agreement simply contained weekly and<,,~yearly workload maxima and a provision for
averaging workload. The agreement also included an Instructional Assignment Committee
but that committee had no power to resolve workload disputes. The Union said a major
impetus for change was the lengthy time it had taken to resolve workload disputes under the
regular arbitration system. A workload complaint took about four months within the College
before it went to the province-wide arbitration scheduling committee. The arbitration award
often came two or three years after the teacher completed the work.
/---.,
In 1984 or 1985 major changes were made to the agreement with the introduction of new
language very similar to the language in current agreement. The principal changes were the
o
introduction of a workload formula, the requirement to use the standard workload form, the
six weeks notice of the assigned workload, the introduction of the College Workload
Monitoring Group and Workload Resolution Arbitration, and the inclusion of the right for
the Union to investigate workload concerns and refer those concerns as complaints to the
workload monitoring group.
The new Workload Resolution Arbitration process in Article 11 was intended to deal with
the problem of delay and the related problem of remedy for work assignments found to have
been improper. Under the expedited workload arbitration process in Article 11 the award of
an arbitrator is often available before the t~acher has begun the work.
The Union submitted that there is nothing in Article 11 which prevents the Union from filing
or arbitrating its own complaints. Although the Article does include detailed provisions
explaining how a teacher can complain, that inclusion does not mean that the Union is unable
o
- 23 -
to initiate and arbitrate its own workload complaints under this Article.
The Union also noted that this Employer had on several previous occasions agreed that
similar complaints initiated by the Union could be heard and determined by the workload
resolution arbitrator. For example, the Employer had agreed to my jurisdiction to hear a
similar group of complaints which the Union had raised regarding the 2000 fall term
o
workload assignments, as well as a complaint which the Union had made regarding the
workload of members serving on the College Renewal Committee. The Union said this
practice supported its interpretation of the agreement.
The Union noted that some teachers, such as probationary teachers, may not fully understand
their rights, or may be nervous about the consequences of complaining, or may otherwise be
unwilling to complain. Accepting that some teachers may not be willing to step forward to
complain about their workload, the Union submitted that one would expect the agreement
to provide for a mechanism enabling the Union to enforce its rights regarding workload. The
r:;
Union noted that these complaints raised precisely the type of issues about individual
teacher's workload which were intended to be resolved through the expedited workload
arbitration process.
Finally, the Union noted that Section 46 of The Colleges Collective Bargaining Act requires
this collective agreement to provide for the arbitration of all differences, failing which an
arbitration provision is deemed to be included in the collective agreement. The Union
submitted that if I concluded that this agreement did not contain a provision for the
arbitration of these differences, I should find that the differences could nevertheless be
arbitrated using the arbitration provision which the collective agreement was deemed to
include by operation of Section 46 ofthe Act. The Union noted that some other arbitrators
- 24-
o
had used the deemed provisions in the governing statute to find that they had jurisdiction.
On this jurisdictional issue, the Union referred to the following awards: George Brown
College of Applied Arts and Technology and Ontario Public Service Employees Union, Local
556 (April 27, 1998), unreported (Snow); George Brown College of Applied Arts and
Technology and Ontario Public Service Employees Union, Local 556 (July 26, 1998),
unreported (Snow); George Brown College of Applied Arts and Technology and Ontario
Public Service Employees Union, Local 5 56 (June 13,2000), unreported (Snow); and George
Brown College of Applied Arts and Tec~nology and Ontario Public Service Employees
Union, Local 5 56 (March 13,2001), unreported (Snow); Algonquin College and The Ontario
Public Service Employees Union, Local 415 (November 17, 1997), unreported (O'Neil,
W .R.A.); and Re Windsor Roman Catholic Separate School Board and Ontario English
Catholic Teachers I Association and L 'Association Des Enseignants Franco-Ontarien (1978),
17 L.A.C. (2d) 298 (Hinnegan).
The Workload Complaints
1. Graphics Design Department Complaints
o
a) Student recruitment not included in calculating workload - numerous teachers
As for the actual workload complaints, the Union said that all Graphics Design teachers who
worked on student recruitment should have that work accurately reflected on their standard
workload forms. The Union suggested that the Employer had included this student
recruitment work only on the standard workload forms of those teachers for whom its
inclusion would not place them in an overtime situation - for those teachers who had an
o
- 25 -
assignment of under 44 hours in a week when this work was included - and excluded it from
the forms of those who would be in an overtime situation. The Union said that all teachers
should be treated similarly so that all teac~ers who did this work should have it accurately
recorded on the form. The Union asked that I direct the Employer to review the records it
had maintained regarding student recruitment, advise the Union of all teachers in the
department who did this work during the 200 I winter term and the time each teacher worked,
and direct the Employer to include all student recruitment work on all standard workload
forms. The Union also asked that any resulting overtime be paid and that the Employer
advise the Union of those payments.
b) Promotional and departmental/divisional meetings not included in calculating
workload - 12 teachers
'6
/""'-..~,
The Union said that all teachers in Graphics Design should have time included on their
standard workload forms for promotional and/or departmental/divisional meetings. As all
teachers were expected to attend these meetings, it was inequitable to exclude this work for
some teachers. The Union asked that I direct that this work be included on the standard
workload forms, that the Union be given copies of those revised forms, that any resulting
overtime be paid, and that the Union be informed of those overtime payments.
c) Probationary teachers may be in an overtime position which is not permitted - 7
:;:)
teachers
The Union said the collective agreement made it clear that a probationary teacher was to be
assigned a maximum of 44 hours work per week. The Union asked that I direct that the
standard workload forms for the probationary teachers be corrected so as to accurately reflect
c
- 26-
all the work done, that overtime be paid where appropriate and the Union notified, and that
I direct the Employer to consider its own violation of this collective agreement in any future
consideration of these employees' work, including consideration for permanent status.
2. Hospitality Department Complaints
Co
a) Employer has not issued standard workload forms - 4 teachers
The Union said all teachers were entitled to a standard workload form. The Union asked me
to order the Employer to provide a standard workload form to each of the teachers who had
not yet received one for the winter 2001 term and that copies ofthose forms be provided to
the Union.
/-------..",
b) Union not notified of overtime assignments - 2 teachers
Q
As for the overtime issue, the Union noted that under Article 11.01 J 1 the maximum weekly
overtime was three hours. Mr. Lewkovicz was assigned more than 3 hours of overtime. The
Union said that the Employer could not do that even with a teacher's agreement, and sought
a declaration that the Employer had violated the collective agreement.
Moreover the Union said the parties had a local agreement directing the Employer to inform
the Union in advance of any proposed overtime but the Employer had not done so when
assigning overtime to either Claudio Lewkovicz or Mary Vrabel. The Union sought a
declaration that the Employer had not done as it had agreed to do.
3.
Faculty Participation on Selection Committees
f.~----",-
~~.
- 27-
,~~
The Union said that implementation of the proposed change regarding selection committees
would lead to a violation of the agreement.
v. POSITION OF THE EMPLOYER
Jurisdiction
As noted, the Employer did not attend the first day of hearing. I reopened the hearing to
address the Employer's submission that a workload resolution arbitrator did not have
o
jurisdiction to deal with Union initiated workload complaints. Therefore the Employer made
submissions only on my jurisdiction to hear these complaints.
The Employer began by submitting that:
1. As workload resolution arbitrator I had no jurisdiction to hear these referrals as they
were issues which were raised and referred by the Union.
2. More generally, no workload resolution arbitrator had jurisdiction to entertain any
referral by a Union, as distinct from a referral of a workload complaint made by a
teacher.
o
3. If any arbitrator does have jurisdiction to entertain a referral of a workload complaint
made by a Union, as distinct from a complaint made by a teacher, it must be an
arbitrator operating under Article 32 of the collective agreement or an arbitrator
operating under the model clause contained in Section 46 of the Colleges Collective
Bargaining Act.
The Employer reviewed the submission to arbitration - the April 9 e-mail and attachments
reproduced above. The Employer submitted that all the issues raised were matters which
o
- 28-
could have been raised by an individual teacher.
The Employer reviewed the provisions oftbe agreement, especially Article 11.01 and 11.02,
and noted that, with a few exceptions, the process for assigning work is directed toward
teachers and the process for resolving workload disputes is driven by teacher actions, not
Union actions. The Employer said that only teachers were intended to arbitrate their
workload complaints under the collective agreement. While the Union could bring its own
workload complaints before the workload monitoring group, failing resolution there, the
Union was not allowed to take its complaints to arbitration before a workload resolution
arbitrator.
The Employer noted Article 32 in which Union grievances are restricted under the general
<:I
arbitration clause - the Union is not to grieve a matter that a teacher could have raised unless
it involves n. . . an unreasonable standard that is patently in violation of this Agreement and
that adversely affects the rights of employees. n (Article 32.10). The Employer suggested that
the parties had intended to similarly limit the Union's access to arbitration for resolving
Union workload complaints.
The Employer submitted that it was not a violation of the Act for the parties to restrict the
right of a Union to pursue any matter to arbitration. The differences raised here by the Union
could have been raised and arbitrated by the individual teachers affected. Therefore there
<:)
was a provision in the agreement by which these differences could be arbitrated. The
Employer submitted that the parties to this agreement had agreed to restrict the Union's right
to raise workload issues. They had expressed this limitation by providing no language in
Articles 11.01 and 11.02 to direct how a Union complaint could proceed to arbitration. The
parties had not violated Section 46 of the Act by simply specifYing the mechanism that must
'f";
- 29-
be used to obtain arbitration of these differences.
The Employer reviewed Section 46 of The Colleges Collective Bargaining Act which
requires that a collective agreement include a provision for the arbitration of all differences
between the parties, failing which the arbitration provision in that Section is deemed to be
included in the agreement. The Employer noted that there was no provision in that Act
<::>
allowing for an amendment of a collective agreement which did not fully meet that statutory
requirement. The Employer contrasted the provisions in the Labour Relations Act which
provided a model clause for a collective agreement which was deficient. If this collective
agreement failed to grant jurisdiction to a workload arbitrator to, resolve Union workload
complaints, The Colleges Collective Bargaining Act could not be used to repair that
deficiency.
c/..-.-......
The Employer referred to three awards in which other workload resolution arbitrators had
concluded they could not hear and determine a workload complaint brought forward by a
<::>
Union, as distinct from a complaint brought by an individual teacher.
The Employer noted the language of Article 11.02 E 2 which provided that a teacher's
complaint which was not referred to arbitration within one week ofthe teacher receiving the
workload monitoring group notification was deemed to be settled. The Employer said this
prevented a Union complaint which had been taken to the workload monitoring group being
pursued to arbitration unless the teacher involved referred the matter to workload arbitration.
As these complaints were not referred by the teachers, they were deemed to have been
settled.
6
In summary, the Employer said the agreement did not grant a workload resolution arbitrator
- 30-
(;)
jurisdiction over Union initiated complaints and that The Colleges Collective Bargaining Act
did not confer jurisdiction. The Employer asked me to find that I was without jurisdiction
to deal with these Union complaints.
>~>
The Employer referred to the following authorities: Colleges Collective Bargaining Act; Re
Sudbury Mine, Mill and Smelter Workers' Union, Local 598 and International Nickel Co. of
Canada Ltd. [1962] 32 D.L.R. (2d) 494 (O.H.C., Gale J.); Re Sudbury Mine, Mill and
Smelter Workers' Union, Local 598 and International Nickel Co. of Canada Ltd. [1962] 35
D.L.R. 2d) 371 (Ont. C~urt of Appeal); Re Milk and Bread Drivers, Dairy Employees,
o
Caterers and Allied Employees, Local 647, and Weston Bakeries Ltd. (1970), 21 L.A.C. 308
(P. C. Weiler); Re Canadian Union of Public Employees, Local 1 011, and Burlington Board
of Education (1967), 18 L.A.C. 347 (Barber); United Steel Corporation Ltd. v. Fuller et at.
[1958] 12 D.L.R. (2d) 322 (O.H.C., Wells J.); Seneca College (Union Complaint) (March
12, 1987), unreported (Reno, WRA); Northern College and OPSEU Local 653 (undated-
hearing held January 19, 1989), unreported (Morrison, WRA); Cambrian College and
OPSEU, Local 655 (September 18, 1987), unreported (Dean, WRA); Ontario College [sic]
of Regents for Colleges of Applied Arts and Technology (Cambrian College) and Ontario
Public Service Employees Union (For Academic Employees) (October 28, 1987), unreported
(;)
(Teplitsky); Niagara College and Ontario Public Service Employees Union (McKay
grievance) (February 3, 1989), unreported (Carter); Fanshawe College of Applied Arts and
Technology and Ontario Public Service Employees Union (March 29, 1989), unreported
(Burkett); Re Board of Governors ofFanshawe College of Applied Arts and Technology and
Ontario Public Service Employees Union et at. (1990), 70 D.L.R. 4th 494 (Divisional Court);
Board of Governors of Fanshawe College of Applied Arts and Technology and Ontario
Public Service Employees Union, et at. (June 8, 1994), unreported (Ont. C.A.); Ontario
Council of Regents for Colleges of Applied Arts and Technology in the Form of George
,:;;
- 31 -
Brown College and Ontario Public Service Employees Union (For Academic Employees)
(February 7, 1995), unreported (McLaren); Ontario Public Service Employees Union and
Niagara College (November 29, 1995), unreported (Mitchnick); Seneca College and Ontario
o
Public Service Employees Union (June 5, 1998), unreported (Devlin); Loyalist College of
Applied Arts and Technology and Ontario Public Service Employees Union on behalf of its
Local 420 (May 29, 2001), unreported (O'Neil).
VI. CONCLUSIONS
Proceeding in the Absence of the Employer
As noted, the Employer did not attend the first day of the hearing. The following are the
reasons for proceeding in the Employer's :bsence.
To briefly review the facts, the parties and I had discussed the requirement in Article 11.02
F 5 that I must "commence" a hearing within two weeks of a specific referral. Neither party
disagreed with this. After these complaints were referred to me April 9, 2001, I wrote three
times (April 10, April 10, and April 12) to the Employer asking for information on dates. I
specifically asked the Employer to indicate any dates within the two week time frame when
the Employer was not available. In the Employer's first two replies no concern was raised
about the Employer's availability on April 19. In my third message I asked about four
specific dates, one of which was Aprill9? The Employer rejected two of those four dates
but again expressed no difficulty about a hearing on April 19. In my messages I had
reminded both parties ofthe collective agreement requirement that I must begin the hearing
by April 23. I eventually scheduled the hearing for April 19, the last day in the two-week
time frame that I had available, a day about which I had three times requested the Employer
-:',;
- 32-
to indicate any concerns, and a day about which the Employer expressed no concerns until
after the hearing was scheduled. I advised the parties ofthe hearing.
On the day of the hearing it was clear from both Ms Hood's e-mail and the personal message.
from Mr. Ivany that the Employer knew of the hearing.
(;)
Although this arbitration process is informal, like most arbitrations it is intended as an
adversarial process and the expectation is that both parties will attend and present their
evidence and argument to the arbitrator. At a minimum, that expectation is implicit in the
collective agreement and that was the practice which had been uniformly followed by these
parties before the April 19 hearing.
The Union asserted that the Employer was attempting to frustrate the arbitration process
through its absence. The Union provided some evidence of earlier Employer actions
consistent with an Employer desire to frustrate the process for the resolution of workload
disputes. However, it is unnecessary for m~ to decide this issue. All that is necessary for me
to decide is: was the hearing properly scheduled, did the Employer have notice of it, and
should the hearing proceed without the Employer?
Was the hearing properly scheduled? I wrote several times to Mr. Ivany, attempting to
secure from him information as to dates. I had indicated the deadline for a hearing and given
the days I was available. His responses were neither forthcoming nor helpful; the Employer
did not respond substantively to the dates. I concluded nevertheless that I had to commence
the hearing and I booked it on the last possible day. I decided at the hearing on April 19 that
the hearing was properly scheduled in aCC0rdance with the terms in the agreement.
~
- 33 -
c
Did the Employer have notice? I concluded at the hearing that the Employer had been
notified of the hearing. Both the April 18 e-mail from Nancy Hood to the Union and Mr.
Ivany's message to me indicated the Employer had been advised of the hearing.
After the hearing the Employer claimed that it had not been properly notified of the hearing.
However, I dismiss that claim as having no merit.
~~
Should the hearing proceed in the Employer's absence? Based on the clear evidence that the
Employer knew of the requirement in the collective agreement that I begin a hearing within
c
two weeks, had three times failed to raise any concerns about an April 19 hearing and only
raised its concerns after the hearing was scheduled, knew of the hearing, and chose to stay
away, I agreed with the Union's request that I proceed in the Employer's absence. I
concluded that to do otherwise would allow one side (here the Employer) to frustrate the
arbitration process by simply absenting itself from the hearing and would thereby make a
mockery of the workload arbitration process.
Any party which knows of a hearing and chooses to stay away from that hearing does so at
its own peril. In the absence of an agreement to cancel a hearing, if a party has a concern
about the scheduling of the hearing or if it'1.s not prepared to fully argue certain issues, that
party would be well advised to attend the hearing, express its concerns and seek an
adjournment. In previous hearings these parties have often accommodated each other through
adjoUrnments. When this hearing reconvened to consider the issue of jurisdiction the Union
appeared surprised by the Employer's submission and sought an adjournment. The Employer
agreed to the request. In the absence of agreement by the parties, arbitrators grant
adjournments in appropriate circumstances.
/~,
Q
~-.
- 34 w
Jurisdiction
I begin by reproducing the reasons I provided to the parties for deciding to reopen the hearing
<:;;
to permit the Employer to argue its objection to my jurisdiction. The text of my May 10,
2001, letter follows:
I have reviewed Ms Hood's letters of April 20, May 4 and May 8 as well as Mr. Tomassi's letters of
May 1 and May 7.
Ms Hood has requested that I schedule a hearing to consider the Employer's argument that a
workload resolution arbitrator has no jurisdiction over the above workload complaints. The Union
opposes that request.
~'.
To review the background of this case, a hearing was scheduled for, and held, April 19, 2001. The
Employer did not request an adjoununent and did not attend. The Employer has since asserted that
it was not properly notified of the hearing. FW reasons I will record in my written award (should I
conclude that I have jurisdiction), I ruled at the April 19 hearing that the Employer had been properly
notified of that hearing and I provided oral reasons then. Shortly after the April 19 hearing the
Employer asked that I schedule a hearing day to provide it with an opportunity to argue that the
issues the Union had referred to workload arbitration were issues over which a workload resolution
arbitrator has no jurisdiction.
A party is expected to make all its arguments at the hearing. In choosing not to attend the April 19
hearing the Employer gave up its right to raise this issue in this case. However, as arbitrator I have
discretion in whether to grant the Employees request for a hearing on this argument.
In this case the Employer is raising a jurisdictional issue. As I understand Ms Hood's letters, the
Employer says that a workload resolution arbitrator has no jurisdiction to consider or rule on the
above workload complaints. As such, this is an issue which goes to the heart of my jurisdiction. If
the Employer is correct, then anything which I might do or say about these complaints is done or said
without any authority. I also note that if! do not permit the Employer to make its objection in this
hearing, it may raise the same objection in a<::> timely way at the next possible opportunity. As a
workload arbitrator I have heard several Union workload complaints (the Employer did not raise this
objection in those cases) and thus it appears the issue is likely to arise again soon.
An arbitrator's jurisdiction is always a fundamental issue. An arbitrator has no inherent jurisdiction.
An arbitrator has only the jurisdiction, or authority, provided by the parties. An arbitrator can only
act within the limits of that jurisdiction. Any question of jurisdiction is a serious matter which
should be resolved before an arbitrator rules on the merits of a complaint. Because of the importance
<:>
- 35-
of this issue, and noting that it was raised promptly after the April 19 hearing, I have decided to
reopen this hearing.
I will reopen the hearing for the sole purpose of considering the Employer's objection that a
workload resolution arbitrator has no jurisdiction over the above complaints. For clarity, I note that
should I conclude that I do have jurisdiction, the hearing on the merits of the Union complaints has
already been concluded and I will entertain no evidence or argument on the merits of those
complaints; the hearing is not being reopened to deal with the merits of the above complaints.
As Ms Hood has expressed the Employer's ~bjection in different ways, the exact nature of that
objection is unclear. Ms Hood has also indicated that the Employer will be retaining counsel. I
direct the Employer to instruct its counsel to advise me and Mr. Tomassi forthwith in writing
precisely what the Employer's objection is. I wish to know, for example, whether the Employer
submits that:
1. The Union can never arbitrate its own workload complaints; or
2. Although the Union can never arbitrate its own workload complaints before a workload
resolution arbitrator, the Union can arbitrate its own workload complaints elsewhere (perhaps
arbitration under Article 32); or
3. There is something unique to these particular workload complaints which prevents them, but
not other Union workload complaints, from being pursued to workload arbitration. If so,
please elaborate.
The parties have agreed in Article 11 of their collective agreement that workload concerns are to be
dealt with promptly. My first available days are June 11, June 12, and June 13. I direct both parties
to advise me as soon as possible, but in any evg:tt on or before Thursday May 17, oftheir availability
on each of those days.
I turn now to the issue raised by the Employer:
Does a workload resolution arbitrator have jurisdiction over Union initiated workload
complaints, as distinct from individual teacher initiated complaints?
A workload arbitrator has no inherent jurisdiction - the jurisdiction must come from either
the statute or from the collective agreement.
The Colleges Collective Bargaining Act., requires that this agreement provide for the
arbitration of all differences between these parties (Section 46). While the Act requires an
arbitration process, it says nothing about which arbitrator or which type of arbitration. It thus
- 36-
<:)
confers no jurisdiction on a workload resolution arbitrator to resolve Union workload
complaints.
If a workload arbitrator has jurisdiction over Union initiated workload complaints, that
jurisdiction must come from the parties' collective agreement.
This is a province-wide collective agreement regulating the employment ofteachers at all the
Colleges of Applied Arts and Technology in Ontario and it was negotiated by large and
experienced parties. When the parties agreed to these provisions I believe that they were
<:)
aware of the requirements in the Act, including the requirement to provide for the arbitration
of all differences between the Employer and the Union. In interpreting this agreement I
remain mindful of the requirement in the Act that the parties provide for the arbitration of all
/~ their differences.
t.
Article 11.01 of the collective agreement establishes limits on workload assignments and
Article 11.02 establishes a process for assigning that work and resolving workload
complaints. Article 11.02 contains a two-part dispute resolution process. The first part is the
workload monitoring group consisting of equal numbers of College and Union appointees.
Disputes which come before that group "'are decided by a majority vote and a majority
decision is binding on the College, Union and teacher.
In addition to individual teachers processing their own workload complaints before the
workload monitoring group, the parties recognized that the Union could pursue its own
workload complaints before the workload monitoring group (Article 11.02 C 1 (iv)). The
Union clearly has access to the first half of this two-part process to address complaints which
.~ it has initiated.
/~~'"'
- 37-
There is no question that teacher initiated workload complaints may be processed through
the workload monitoring group and, failing a resolution, may proceed through to the second
part of the process, workload resolution arbitration. If the issues raised by the Union in this
<:::>
case had been raised instead by the teachers involved, each of those teachers could have
referred his or her complaint to workload resolution arbitration. But the question before me
relates to the Union's access to the second half of that process for the purpose of resolving
these Union initiated complaints which have not been settled by the workload monitoring
group. Can I arbitrate these complaints which the Union, not the teacher, has referred to
arbitration?
There are a limited number of possibilities that these parties may have intended on the
question of access to arbitration for Union workload complaints and each can be considered
fully. The possibilities for the arbitration" of Union initiated workload complaints are as
follows:
1. No provision for arbitration in the collective agreement leading to the use of the
statutorily deemed arbitration mechanism in The Colleges Collective Bargaining Act
2. Arbitration under Article 32
3. Arbitration under Article II by the Union but only in those instances in which the
individual teacher refers the Union initiated complaint to workload arbitration after
that complaint has been processed through the workload monitoring group
4. Workload resolution arbitration under Article II
(F or completeness, I note a fifth possibility: In Article 28, Employment Stability, the parties
have provided for an Employment Stability Reserve Fund Arbitrator but neither side referred
to this arbitrator and I reject this as a possible form of arbitration for resolving Union
initiated workload complaints.)s
/''-----..,
o
- 38-
1.
No provision for arbitration in the collective agreement leading to the use of the
statutorily deemed arbitration mechanism in The Colleges Collective Bargaining Act
~~,
As mentioned, Section 46 of The Colleges Collective Bargaining Act requires the parties to
provide in this agreement for the resolution of all differences by arbitration. Ifthe agreement
does not do so, the arbitration provision in Section 46(2) is deemed to be included in the
o
collective agreement. It is possible that these parties deliberately failed to provide for
arbitration ofthese issues in their collective agreement. It is possible that they intended that
all Union initiated workload complaints not resolved by the workload monitoring group
would be arbitrated by means of the statutory arbitration provision. But, as noted, these are
large and sophisticated parties and I think it very unlikely that they would have chosen to
ignore the clear statutory directive. In any event, and more importantly, there is nothing in
either the language of the agreement or in the evidence to suggest that they intended to omit
from their agreement a provision for the arbitration ofthese complaints.
o
I reject this possibility as the proper interpretation of this agreement.
2. Arbitration under Article 32
It is possible that the parties intended for Union initiated workload complaints to be
processed through the workload monitoring group and, failing resolution there, for these
complaints to then be processed before an arbitration board established under Article 32.
/...--......
There is nothing in either Article 11 or Article 32, or elsewhere in the agreement, to suggest
that the parties intended to have these matt'ers arbitrated under Article 32. On the contrary,
as I explain more fully later, the clear implication in the language of the agreement is that
- 39-
<:>
workload complaints cannot be resolved using the Article 32 process but instead are to be
resolved under Article 11.
Apart from the lack of language to suggest this as having been the parties' intention, and
language suggesting the contrary result, if Union initiated workload complaints were to be
processed to arbitration under Article 32 they would have to meet the requirements of that
Article. But there are considerable difficulties in bringing these matters to arbitration under
Article 32. In Article 32 the parties have included express limitations on the type of concern
which can be brought to Article 32 arbitration as a Union grievance. Although some
<:>
workload issues raised by a Union may be brought before an Article 32 arbitration board, it
is clear that the issues raised before me in this case could not have proceeded to Article 32
arbitration as Union grievances. Under Article 32.1 0, wi~ limited exceptions, the Union
cannot grieve any matter about which an employee would be entitled to grieve. The parties
acknowledged that all, or nearly all, of these complaints could have been initiated by the
affected teachers. The exceptions allowing the Union to grieve a matter which the teacher
was entitled to grieve require both an unreasonable standard and a patent violation of the
agreement. There was no suggestion that these grievances met either exception.
As mentioned, some Union workload co1nplaints may be dealt with through Article 32
arbitration. Support for that statement is found in the award of an arbitration board chaired
by Arbitrator Burkett acting under Article 32 in the Fanshawe case, above. That decision
was upheld in the Court of Appeal, also above.
My conclusion that the workload issues raised by the Union in this case could not be dealt
with by an Article 32 arbitration board is also supported by Arbitrator Burkett's award. The
issue of a Union taking its own workload complaints to Article 32 arbitration is dealt with
<:>
~..
~ 40-
more directly in the Teplitsky award in Cambrian College, above, another award made by
an arbitration board established under Article 32. That board concluded that Union
complaints about individual workload issues cannot be dealt with under Article 32.
I;)
I conclude that Article 32 arbitration is not available for the matters before me; I reject the
possibility that these parties intended that Union complaints such as these proceed to
arbitration under Article 32.
3. Arbitration under Article 11 by the Union but only in those instances in which the
individual teacher refers the Union initiated complaint to workload arbitration after
that complaint has been processed through the workload monitoring group
I;)
The next possibility is that the parties intended to provide a system by which some Union
workload complaints could be arbitrated under Article II but that they wished to include
procedural requirements such that each Union initiated workload complaint had to be
supported by the individual teacher before the Union was allowed to arbitrate it. The
Employer submitted that Article 11.02 E 2 clarifies that only a teacher can move a Union
initiated complaint from the workload monitoring group to workload arbitration. Did the
parties intend that, unless the Union secured the support of the teachers affected by the
complaints initiated by the Union, the Union would have no access to arbitration?
I repeat Article 11.02 E 2 for ease of reference:
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 will be considered to have been settled.
..~
It is clear that failing settlement by the workload monitoring group a teacher must, within one
week, refer to workload arbitration any complaint which he or she originally initiated. If that
<:;
- 41 -
is not done, the teacher's complaint is considered to have been settled. But did the parties
also intend that this language would regulate the processing of Union initiated complaints?
Does it require that the teacher, assuming there is one identifiable teacher, must take over the
processing of the Union complaint at this stage or else it is deemed to have been settled?
,r---...
The words could be read that broadly but I cannot accept that conclusion as having been the
(;)
parties' intention. I think it very unlikely that the parties would have intended to provide for
Union initiated complaints at the stage of the workload monitoring group and then have
required that the teacher (again, assuming there is one identifiable teacher) essentially take
over the process through the exercise of a veto when the Union's complaint was ready for
arbitration. If the parties had intended such an unusual result as the individual taking over
the conduct of a Union initiated workload complaint during the dispute resolution process,
I would have expected the parties to have very clearly expressed that intention.
I do not believe that the parties intended Article 11.02 E 2 to mean that a Union initiated
complaint was deemed settled unless the t~acher involved referred it to arbitration. Instead
I believe that the parties intended the word lImatterll in Article 11.02 E 2 to refer to a
complaint which the teacher originally initiated. I conclude that this provision, like the rest
of the related provisions regarding the processing of workload complaints, is directed only
to those workload complaints initiated by the teacher.
I reject this possibility as being the proper interpretation of the agreement.
4. Workload resolution arbitration under Article 11
<:;
"~ If the parties intended for arbitration of these disputes, as is required by the governing statute,
/~.
- 42-
c
the only remaining possibility is workload resolution arbitration under Article 11.
One ofthe major difficulties with this possibility is that the collective agreement says nothing
about how the Union could move its complaint from the workload monitoring group to
arbitration. Although the agreement indicates both what a teacher must do if the teacher
wishes to move his or her unresolved workload complaint from the workload monitoring
group to the workload resolution arbitrator and when he or she must do it (Article 11.02 E),
there is no parallel language to indicate how an unresolved Union complaint would proceed
to workload arbitration. Did the parties intend that these matters could proceed to workload
{)
arbitration?
'-'.
I first review the collective agreement language to determine whether, notwithstanding the
absence of any express language, the parties intended this as the means by which the Union
would resolve its own workload complaints.
.~
On this question it is useful to note that there are detailed provisions indicating how a teacher
can bring his or her complaint before the workload monitoring group (e.g. Article 11.02 A
4 and 11.02 A 6) but, as with Union access to arbitration, there is no language to indicate
how a Union initiated workload complaint can be brought before that group. Article 11.02
C 1 (iv) simply makes it clear that Union initiated workload complaints can be brought
before the workload monitoring group. There is nothing in the agreement saying how that
is done; that is nothing similar to the provisions included for the initiation of individual
teacher complaints. Having clearly intended to provide for Union access to the workload
monitoring group without including any language explaining how a Union initiated
complaint is to be brought before that group, it is possible that the parties intended the same
result with respect to Union access to workload arbitration, again without including any
b
_.~."'
- 43 -
language explaining how a Union initiated complaint is brought before the arbitrator. The
lack oflanguage explaining the process for the Union to obtain access to workload arbitration
does not, in and of itself, mean that the parties intended to prevent the Union from arbitrating
o
its own complaints using this process.
Three provisions in Article 11 suggest that the parties intended to provide for the arbitration
of all unresolved workload complaints, including Union initiated complaints, using the
workload arbitration process. First, Article 11.02 A 6 (b) notes that grievances "arising with
respect to Article 11 . . . other than 11.0 I and 11.02" are dealt with in Article 32 -leaving the
implication that the parties intended all Article 11.01 and 11.02 differences to be dealt with
using the Article 11 workload resolution arbitration process. Secondly, Article 11.02 F 9
begins with "Having regard to the procedures set out herein for the resolution of disputes
o
arising under 11.01 and 11.02 . . ." suggesting again that the parties intended for the
workload resolution arbitration process to be used to resolve all workload disputes. Thirdly,
Article 11.02 G begins with the following "It is recognized that speedy resolution of
workload disputes is advantageous to all concerned. . ." There is no doubt that the speedy
arbitration process under this agreement is the workload arbitration process and thus Article
11.02 G suggests that the parties intended that all workload disputes would be resolved using
this process.
In determining the parties' intention for language in one article (here Article 11), it is
common for arbitrators to examine other refated provisions. This agreement includes another
article (Article 32) which is directed to the resolution of grievances. Article 32 includes
express language limiting Union grievances. Does that help in determining the parties'
intention in Article II?
b
~ 44-
I note that the Article 32 language pre-dates the Article 11 language. On the one hand, one
might think the parties would have intended to adopt a similar result oflimiting Union access
to arbitration in Article 11. On the other hand, when the parties agreed to Article 11 they
knew that if they wished to restrict Union access to workload resolution arbitration, they
were able to do so by the use of express language. But no express language similar to that
in Article 32 was included in Article 11. This absence of express language limiting Union
o
access to workload arbitration might suggest that the parties decided not to adopt a similar
approach of limiting Union access in workload cases. On balance, I find the language of
Article 32 is of no assistance in resolving this issue.
Overall the language ofthis collective agreement leads me to conclude that the parties' likely
intention for the resolution ofthese complaints was workload resolution arbitration, but the
-<- language is ambiguous and I am left with doubt as to their intention.
In situations where the intention of the parties is unclear following an examination of the
language of the agreement alone, arbitr~tors examine other sources to assist them to
determine intention.
The past practice of the parties is one factor sometimes considered. Arbitrators sometimes
assume that ifthe parties have conducted themselves as though an agreement has a particular
meaning, that meaning was what they intended. As a workload resolution arbitrator for these
parties, I have addressed similar Union initiated workload complaints in a number of cases.
However, in those cases there was no argument on the issue of the Union bringing its
complaints to workload arbitration. Although the Employer did not object to me resolving
those Union complaints, I conclude that tile Employer's acquiesence to my jurisdiction in
those cases is of no assistance to me in determining the parties' intention.
.~\
- 45 ~
o
Another approach to determining intention is to consider which interpretation is most
consistent with the other principles expressed by the parties within the agreement. If one
interpretation is consistent with those principles, arbitrators sometimes conclude that the
parties probably intended that interpretation rather than an alternative which is inconsistent.
In this collective agreement the parties established the workload resolution arbitration
process to speedily resolve individual teacher complaints about workload. I believe this
desire for speedy resolution would also apply to the resolution of Union initiated complaints
about workload. Workload resolution arbitration of Union workload complaints is consistent
<:;)
with the principle of the speedy resolution of workload disputes. All other forms of
arbitration are inconsistent with a desire for the speedy resolution of these complaints. This
suggests that the parties would have intended to provide for the resolution of these Union
"~ workload complaints by workload resolution arbitration.
Another approach to determining intention is to examine other arbitration awards, especially
those awards which were made under the same agreement. However, the collective
agreement addresses the weight to be given to the awards of workload resolution arbitrators.
Article 11.02 F 6 provides that workload resolution arbitration awards "only have application
to the teacher affected. . . and shall have n~ application beyond" twelve months. It is clear
that the parties sought an expedited system by which they could quickly resolve workload
issues without the concern that workload resolution arbitration awards would be binding in
other cases, or even for a long time. Although these awards are not binding, I will consider
the reasoning in each.
r-..
I have reviewed the cases cited. Several of them address this issue. In three cases, workload
resolution arbitrators concluded that they had no jurisdiction to consider similar Union
o
"-,
- 46-
initiated complaints (see Seneca College (Reno, WRA); Northern College (Morrison, WRA);
Cambrian College (Dean, WRA), above). Unfortunately there is no reasoning in any of
those three awards on this issue. As the parties have agreed that these workload arbitration
It.>
awards now have "no application" and as they contain no reasoning on this question, I find
them to be of no real assistance.
In another more recent workload arbitration case (Algonquin College, above), Arbitrator
O'Neil considered this issue more fully. She wrote, in part, as follows:
If it is true that only teachers may complain to the WRA under Article 11.01 and 11.02, the
language of Article 11.02 A 6 (b) would suggest that other differences, for example, those
between the Local or the union and the employer as to 11.01 and 11.02, are without a binding
remedy. I agree with the union that that is a result that is not compatible with the provisions
of The Colleges Collective Bargaining Act. s. 46, which provides that there shall be a
provision for the binding settlement by arbitration of all differences between the employer
and an employee organization (of which the union is one). The College sees this issue as
beyond the scope of the WRA process. Nonetheless, having reviewed the statute, collective
agreement and the cases dealt with below, I have concluded that there is no sufficient reason
to defer this matter to another process.
What then is the appropriate result as to procedure? The parties have expressed a clear
intention in all of Article 11. but particularly in Article 11.01 [sic] A 6 (b) that workload
issues be dealt with in the particularly expeditious manner set out therein. But they have
failed to express a route for disputes arising from Articles 11.01 and 11.02 as between the
institutional parties. (at p.3)
Arbitrator O'Neil then concluded both that Section 46 of the Act can be used to fill this gap
and that she had been constituted by the parties as an arbitrator under the Section 46 deemed
arbitration provisions.
o
If Arbitrator O'Neil meant to say that this collective agreement provides for no Union access
to workload resolution arbitration, as distinct from simply noting that the agreement fails to
include any language about how that process might work, then she provides no reasoning.
It is that question which is before me and I do not find any assistance in her award.
I:)
/'~
- 47-
Moreover, the solution Arbitrator O'Neil reached is not applicable in this case as there is no
possibility that these parties have appointed me as an arbitrator acting under Section 46 of
the Act.
I return to the collective agreement. Based on the analysis above, and especially because the
result of no Union access to arbitration is not compatible with the Act, because the agreement
o
makes it clear that these Union complaints can come before the workload monitoring group,
because the agreement also permits these Union complaints to come before that group
without providing any express language as to how that is to happen, because the agreement
implies that these disputes are then resolved by workload resolution arbitration, and because
the agreement expresses a desire to have workload issues dealt with expeditiously, I conclude
that the parties intended that Union initiated workload complaints under Articles 11.01 and
---. 11.02 should be dealt with through workload resolution arbitration. Of the possible
interpretations ofthe agreement, this is the interpretation which fits best with the language
of the collective agreement. I therefore find that as workload resolution arbitrator I have
c
jurisdiction over these Union complaints.
The Workload Complaints
I now turn to the workload complaints.
The evidence was uncontradicted and need not be repeated.
1. Graphics Design Department Complaints
o
,~
a)
Student recruitment not included in calculating workload - numerous teachers
~,
- 48-
o
Standard workload forms are to include details of all work (Article 11.02 A 2). I interpret
this collective agreement as requiring consistent treatment for teachers who are in similar
situations. Since some of the teachers received credit for the work which they did in student
recruitment, I conclude that all teachers should have all student recruitment work included
on the standard workload forms.
The Union acknowledged that it did not have detailed evidence regarding who did how much
student recruitment work; the detailed knowledge of this work was in the hands of the
Employer. I direct the Employer to advise the Union by November 30, 2001, of all teachers
{.)
who did this work during the winter term of2001 and the amount of time that each teacher
worked. In addition, I direct the Employer to review the standard workload forms for all
teachers in the Graphics Design department and to issue revised forms where needed to
~"~ accurately reflect the time spent on this work during the winter term 2001.
b) Promotional and departmental/divisional meetings not included III calculating
workload - 12 teachers
Again, I conclude both that the agreement requires the Employer to include details of all
-0
work on the standard workload forms (Article 11.02 A 2) and to treat all teachers
consistently. As all teachers were expected to attend these meetings, I conclude that all
teachers in the Graphics Design department should receive credit for both types of meetings.
Thus I direct the Employer to revise and reissue the standard workload forms for the nine
teachers (Lawrence, White, Ward, Morin, Mcgibney, Handera, Gregory, England, and
Atkinson) credited for only one type of meeting and include credit for both types of
meetings. Similarly I direct the Employer to revise and reissue the standard workload forms
for those three teachers (Weelink, Hemerick, and Wright) who received credit for neither
o
~
- 49-
type of meeting to include credit for both types of meetings.
c) Probationary teachers may be in an overtime position which is not permitted - 7
...
teachers
The collective agreement (see Article 11.0 I Bland Article 11.01 J 4) limits to 44 hours the
work that can be assigned each week to a probationary teacher. Some of the teachers
affected by my orders above are probationary teachers. Subject to any necessary revisions
made due to adjustments in enrollment following the audit date under Article 11.01 E 3, I
conclude that seven probationary teachers (England, Critoph, Gregory, Hemerick, Lawrence,
Wright and Johnson) were assigned work in excess ofthe amount allowed by the collective
agreement.
"
/.~.
I note that Geraldine Johnson was not originally included on the Union's list of probationary
teachers assigned work over the maximum. This was due to the Employer's failure to note
on Ms Johnson's standard workload form that she was a probationary teacher. As the issues
regarding Ms Johnson were similar to the issues affecting the other probationary teachers and
as the substance of the Union's original complaint was its assertion that the Employer had
assigned overtime work to probationary teachers, I allowed the Union to pursue this
complaint at the hearing.
For greater certainty, using the enrollment"figures listed on the standard workload forms as
originally issued and leaving aside the issue of student recruitment which must still be
addressed pursuant to my orders above, I find that these seven teachers were assigned the
following work:
~ England - 45.06 hours
o
- 50-
Critoph - 44.996 hours
Gregory - 44.05 hours
Hemerick - 46.85 hours
Lawrence - 44.39 hours
Wright - 47.10 hours
Johnson - 44.15 hours
G
I make two orders with respect to those seven teachers.
/~
First, the Employer is directed to review and revise the standard workload forms for the
seven teachers to ensure that they accurately reflect the work assigned or attributed, including
work for student recruitment, student shows, proper preparation factors,
departmental/divisional meetings, promotional meetings, academic advisement, etc.
Corrected standard workload forms are to be issued.
<;)
Secondly, I conclude that probationary teachers are protected by a firm maximum workload.
Probationary teachers are normally new and inexperienced teachers and this limit is intended
to permit them to reach a certain level of performance. They should be able to concentrate
on doing a reasonable amount of academic work during their probationary period without
being assigned to perform "overtimel1 work. Probationary teachers should have a fair chance
of performing at a high enough level that they might become permanent teachers. Thus I
direct the Employer to consider its own violation ofthe collective agreement whenever these
teachers are reviewed for permanent status, or at any other time the Employer reviews the
work which these teachers performed during the winter term of 200 I.
G
/~
2.
Hospitality Department Complaints
~
- 51 -
Co
a) Employer has not issued standard workload forms - 4 teachers
This collective agreement requires that all teachers be issued standard workload forms for
all teaching terms (Article 11.02 A l(a)). The Employer had not done so for all teachers in
the Hospitality department. I direct the Employer to prepare and issue forms for the winter
term, 2001, for Helen McIlwraith, Bjorn Rasmussen, Nelson Reynolds and Edward Wright.
b) Union not notified of overtime assignments - 2 teachers
~)
Under Article 11.01 B I the maximum workload is 44 hours per week. Under Article 11.01
J 1 the maximum overtime which the Employer may assign is three hours per week. Claudio
Lewkovicz was assigned more than three hours of overtime. I declare that the Employer may
not assign, even with a teacher's agreement, more than three hours of overtime per week and
I further declare that this assignment to Mr. Lewkovicz was made in violation of the
agreement.
In addition, I conclude that the parties have a local agreement (under either Article 11.01 M
or Article 11.02 G) which requires the Employer to notify the Union before assigning
;:~
overtime. The Employer did not notify the Union with respect to the overtime assigned to
either Mr. Lewkovicz or Mary Vrabel. In failing to notify the Union, I declare that the
Employer has violated the parties' local agreement.
3. Faculty participation on selection committees
The Employer has said that it plans to act differently when staffing selection committees.
.r-~ Apparently the Employer intends to seek teachers to serve as "volunteers" on future selection
o
- 52-
committees and does not intend to include this activity on standard workload forms or to
compensate teachers for it.
o
As I advised the Union at the hearing, I conclude that it is premature to address this issue.
The plan has not been implemented and its details were not clear. Should the Union, or its
members, conclude at some future time that teachers are doing work for the Employer under
the new arrangements and that the Employer is in violation of the collective agreement by
not including that work on the teachers' standard workload forms, the Union or its members
can raise the matter as a complaint.
In the hope that it may assist the parties, I simply note that under Article 11.02 A 2 the
Employer must include on the standard workload form details of all work for the Employer,
o
-~ not simply the types of work included among the specific examples mentioned in that
Article. Similarly I would remind the parties of an earlier award (George Brown College of
Applied Arts and Technology and Ontario Public Service Employees Union, LocalS 5 6 (June
13, 2000), unreported (Snow)) in which I addressed the issue of volunteer work in the
context of the College Renewal Committee.
General remedial orders and retention of jurisdiction
Many standard workload forms have to be issued, or revised and reissued, as a result ofthe
various orders made above. I direct the E'mployer to issue, or revise and reissue, all those
forms by December 7, 2001. I direct the Employer to provide copies to the Union at the time
of issuing these workload forms.
.~. Some teachers who were not previously above the weekly maximum workload will now be
(:;J
- 53 -
above it and thus will be in an overtime position. Some teachers who were already in an
overtime position may now have additional overtime. Under this agreement the Employer
is required to compensate teachers for all overtime (see Article 11.01 J 2). I direct the
Employer to pay all resulting overtime amounts to all affected teachers by December 21,
2001, and when payment is made to advise the Union of each teacher to whom it has made
an overtime payment and the amount of each payment.
c.
I retain jurisdiction to address any further issues that may arise from the complaints or in the
implementation of this award.
Dated at London, Ontario this 10th day of November, 2001.
{)
Howard Snow, Arbitrator
<::>
.---"