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HomeMy WebLinkAboutUnion 11-11-21 IN THE MATTER OF AN ARBITRATION BET WEE N: ST. LAWRENCE COLLEGE (The "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 417 (The "Union") AND IN THE MATTER OF A GRIEVANCE CONCERNING PARTIAL LOAD TEACHERS AND IN THE MATTER OF A PRELIMINARY AWARD CONCERNING JURISDICTION BOARD OF ARBITRATION David K. L. Starkman Larry Robbins Ann Burke Chair Union Nominee College Nominee APPEARANCES FOR THE EMPLOYER Colin Youngman Jim Gibson Debbie McKay Counsel Manager, Human Resources Director, Academic Operations APPEARANCES FOR THE UNION Mary MacKinnon Erin O'Hara Bijon Roy Graeme Aubert Mary Ann White Counsel Local Union President Chief Steward A Hearing in this matter was held on March 23, and October 4, 2011 at Kingston, Ontario. 2 PRELIMINARY AWARD In August, 2009 the Union grieved that the College was in violation of the collective agreement in that it was not paying partial load employees correctly. The College requested particulars and, in March, 2011, counsel for the Union responded in part as follows: The grievance was filed by the Union when they were notified, on July 24, 2009, that a retreat had been held on June 9 at the Cornwall Campus, and that partial load professors were mandated to attend. I enclose a copy of an em ail July 24,2009 to Don Fairweather from Mary- Ann White. I also enclose a copy of minutes from the retreat, which identify the participants of the meeting and include a number of partial load professors. The Union bases the grievance on Article 26.02 A, which describes the functions of partial load employees. Note that complementary functions are not included in the requirements for partial load employees, as they are for full-time employees. As a result, the Union grieves that the College should not be imposing mandatory meetings, which are a complementary function, on partial load employees. The Union will be seeking a declaration that the College refrain from imposing these functions on partial load employees. In addition or in the alternative, for employees who have been obliged to perform these functions, the Union will take the position that hours spent performing these would be calculated as "voluntary overtime", as they are overtime above and beyond what is required of the employee pursuant to his or her contract. Thus, the partial load employee should be paid at a rate that is equivalent to what a full-time person would receive for the same number of hours (for example, an employee at step 4 in the salary grid as a partial load employee, would be paid, 1 % of the full-time step 4 3 salary rate for each hour of meeting attendance). We understand that this is a continuing issue, as the Union has been advised that within a number of other departments, various groups have mandatory training sessions scheduled for the Spring and Summer. The Union understands that, at the Brockville campus, the College intends to schedule mandatory training for partial load employees with no compensation.. . This Preliminary Award concerns the Colleges's motion that this Board of Arbitration does not have jurisdiction to consider this Union grievance because of article 32.09 of the collective agreement which provides: 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 Employer submitted that the College's decision not to pay partial load teachers for attending certain meetings was a matter that could have been grieved by individual partial load teachers, and according to article 32.09, in such circumstances, the Union can only grieve if it establishes that the decision not to pay was an unreasonable standard which is patently in violation of the collective agreement, and adversely affects the rights of other bargaining unit employees. 4 The Union submitted that the grievance raised the issue of whether it was appropriate for the College to require partial load employees to attend mandatory meetings, and if so, how such employees were to be compensated. In its view, the grievance was broad in nature, and as such, affected the integrity of the collective agreement. The Union indicated that the grievance it was not seeking monetary compensation for any individual employee. Reference was made to a considerable number of decisions between the parties which interpreted and applied article 32.09. In Seneca College and Ontario Public Service Employees Union, unreported, November 21,1990 (P.C. Picher) the Union grieved that the College had assigned teaching at the School of Communication Arts contrary to the requirements of the collective agreement. The agreement at that time had identical language to article 32.09. At page 7 the Board cited with approval from p. 8 of the decision in Sir Sandford Fleming College and OPSEU, unreported, April 25, 1988 (G. Brent) as follows: In our view, in order for a violation of the collective agreement to be called "patent" it must be evident or plain on its face that there has been a violation of the agreement. That is, it is not sufficient that the Union can show that arguably it has a case which could be a violation of the collective agreement dependant on which of two reasonably possible interpretations are accepted, but rather that there has been a clear, evident and plain violation of the collective agreement. In Northern College and OPSEU, [1992] O.L.A.A. No. 840 (0.8. Shime) the Union grieved that the College was improperly classifying employees. The College objected 5 to the Union policy grievance on the grounds that an individual grievance could have been filed, and the objection was dismissed as the Board found that the issues concerning the scope of the bargaining unit were not matters which could have been grieved by individual employees. In Loyalist College of Applied Arts and Technology and OPSEU, Local 420, unreported, May 29,2001 (K.G. O'Neil) the Union grieved the assignment of instructors to teach theory in the automotive technician program claiming that the work was reserved to Professors. The College objected on the grounds that an individual grievance could have been filed, and in upholding the objection at p. 21 the Board commented on the words "patent violation" as follows: The words "patent violation" have been held to create a high standard (Seneca College and OPSEU, P. Picher, January 31,1991), to mean the violation has to be crystal clear (Sir Sanford Fleming and OPSEU, Brent, April 25, 1988), or "leap from the page" (Centennial College and OPSEU, M.C. Picher, January 20, 1992). In Fanshawe College and OPSEU (Kruger, September 16, 1997), the Board decided that a case that was arguable on both sides was "not a patent violation"). In Fanshawe College and OPSEU, unreported, December 10, 2007 (P. Knopf),the Union grieved the manner the College granted Professional Development Leave to a professor in 2005/06. The college objected pursuant to Article 32.09, and the Board allowed the objection because there was no evidence that the rights of other employees were affected. 6 There is no doubt that there are many situations which can give rise to either a policy grievance or an individual grievance, and in such circumstances where an individual could grieve but has chosen not to, arbitrators have generally allowed Union policy grievances to proceed if the issue raised is of broad application to the bargaining unit. In Re Ontario Institute for Studies in Education and Professional Staff Assn. of Ontario Institute for Studies in Education, [1996] O.L.A.A. No. 572 (K.G. O'Neil), the Union filed a policy grievance with respect to limitations on an Early Retirement Incentive plan, and the grievance was allowed to proceed to the extent that it dealt with the institutional issues such as bad faith rather than the individual rejection of an application", In Toronto Transit Commission and Amalgamated Transit Union, Local 113 (Overtime Grievance) [2000] O.L.A.A. (M.K. Saltman) the Union filed a policy grievance with respect to an overtime policy. The Employer objected that it was not a proper policy grievance. The Board dismissed the objection for a number of reasons and noted that the policy had a broad general application and raised issues between the Commission and the Union. In Cancoil Thermal Corp. and United Food and Commercial Workers Canada, Local 175 (Vacation Scheduling Grievance), (2008) 174 L.A.C. (4th) 334 (D.K.L. Starkman), the Union filed a policy grievance alleging that the employer was in violation of the vacation scheduling provisions of the collective agreement. The employer objected that it was not a proper policy grievance and in dismissing the objection the Board noted that the Union was seeking declaratory relief with respect to a policy that applied to all members of the bargaining unit and that it was an appropriate 7 use of the provisions in the collective agreement as it applied to union grievances. Neither of the three non-College decisions referred to in the above paragraph had identical or even similar language to the collective agreement language in question in this arbitration proceeding. Furthermore, the language in this collective agreement has been in effect since at least 1988 and had been interpreted and applied by a number of Boards of Arbitration, and in general has been applied consistently. In this matter it is clear that an individual partial load teacher who is required by the Employer to attend a meeting and is not paid for attending such meeting can grieve both the requirement to attend and the non-payment of money for such attendance. It is also clear that the issue of mandatory attendance and non-payment of money affects the rights of other partial load teachers in the bargaining unit. As confirmed by the arbitral jurisprudence however, in order for the Union to proceed, it must, amongst other things, demonstrate that the mandatory attendance and/or the non-payment is in patent violation of the collective agreement. With respect to this issue the Union noted that article 26 of the collective agreement is about partial load employees and article 26.02A provides: A partial-load employee shall not receive salary or vacations but shall be paid for the performance of each teaching contact hour at an hourly rate calculated in accordance with 26.04. The Union submitted that, insofar as partial load teachers are not paid or credited with 8 complementary functions, which includes meetings, as full-time professors are, therefore partial load teachers cannot be required to attend meetings, or if they can be required to attend meetings, they must be remunerated for such attendances. A reading of article 26, which specifically addresses partial load teachers, and article 11, which addresses the calculation of complementary functions for full time professors does not, in our view, indicate that the College is in patent violation of the provisions of the collective agreement. At best it indicates that the College is arguably in violation of the collective agreement, and as the arbitral jurisprudence has made clear, an arguable violation is insufficient to give this Board of Arbitration jurisdiction over an issue which could have been grieved by an individual partial load teacher. Accordingly this Board of Arbitration does not have jurisdiction to consider this matter and the grievance is dismissed. 9 Dated at Maberly, Ontario this 21 st day of November, 2011 "See attached Dissent" Larry Robbins "I concur" Ann Burke IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE and ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 417 UNION POLICY GRIEVANCE RE PARTIAL LOAD INSTRUCTORS (#2009-0417-0015) DISSENT I have reviewed the A ward of the chairperson in this matter and regret that I must respectfully dissent. I would begin with the well known principles set out in the decision of the Ontario Court of Appeal in Blouin Drywall Contractors Itd. and United Brotherhood ofCmpenters and Joinel;~' of A merica Local 2486, A ug.!75 that unions should be given some latitude in the form of a grievance, and that grievances should not be won or lost based on a technicality of form, but on their merits where possible. In this particular case, when one examines the grievance and the Union's reply to the Employer's request for particulars dated March 17, 2011, it is clear that the Union had general institutional concerns. Could the College impose mandatory meetings which are a complementmy function on partial load employees, and if so, how should such employees be paid? The case came to light because of the retreat held at the Cornwall Campus on June 9/09, but the Union was not concerned about seeking a remedy on behalf of the two partial load employees who attended. Moreover the minutes of that meeting suggested that partial load employees would not be paid for their attendance at these meetings in the future. The Union also made it clear in the above letter that it saw this as a continuing issue, and that other mandatory meetings were to be scheduled in the spring and summer. While I agree that the two individuals (Tinkess and Roberts) could have theoretically filed a grievance over payment for the June 9th retreat, it would have been a velY different grievance from the one filed by the Union in this case, and would have been limited to payment for them for that particular meeting. At this point there was not yet any individual who could grieve over the future meetings. We certainly were not advised that any partial load employees had already been assigned to attend thcm at that point. It should also be stressed that the interests of the Union may be very different from that of individual partial load employees, in that their major concern is to ensure that the status of full time teachers is protected, and that the scope of duties of partial load instructors is not expanded. I turn now to the language of Article 32.09. While it does restrict the Union's ability to file policy grievances, the purpose of the restriction is set out, namely that the regular grievance procedure for individual and group grievances shall not be bypassed. The purpose is not to prevent the Union from enforcing the collective agreement at all. The language states: "Such grievance shall not include any matter upon which an employee would be personally entitled to grieve". The chairperson states that none of the three non-College decisions relied on by the Union had identical or cven similar language to that in question here, But in my view all three essentially had the same restriction, In the T. T.C case (supra) the language states: "A grievance which arises directly between the parties to this Agreement, which could not form a grievance to be processed under the foregoing grievance procedure by an affected employee, may be submitted in writing... . 2 In Cancoil Thermal C01p. (supra) the language reads as follows: "A grievance capable of forming the subject matter of one 01' more individual employee's grievance may not be submitted as a Union or Company grievance." Finally in the OlSE case (supra) the language reads as follows: "Such grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure shall not be by-passed," In my view, the restriction in the other three cases is essentially the same, and those cases provide a sound legal basis for rejecting the Employer's preliminary objection in this case. What makes the wording different in this case is the added language which sets out certain exceptions whereby, even if it is a matter that could be personally grieved by an individual, a policy grievance can still be filed. The wording reads as follows: "except where the Union establishes that the employee has not grieved an umeasonable standard that is patently in violation of this Agreement and that adversely affects the rights of employees." The chairperson focuses on this exception and finds that the Union hasn't met the test, specifically because of the requirement that it be a patent violation of the Agreement. I don't dispute the finding that the Union did not meet the requirements of the exception. But one doesn't get to the exception unless there is a finding that the grievance was a matter which could have been filed by an individual employee. In my view, that was not the case here for the reasons set out above. This added language in the College agreement is not intended to make the provision even more restrictive, It's supposed to provide an exception, albeit a very limited one, which would allow the filing of a policy grievance even where the matter was appropriate for an individual grievance. The rcsult of this award is that it makcs it very difficult for the Union to enforce the terms of the collective agreement. Partial load employees given their lack of job security and uncertain status would be very unlikely to launch such a grievance on their own, I agree that a grievance asking 3 for a remedy for the two individuals who attended the June 9/09 retreat would be clearly the subject matter for an individual grievance. But a grievance over the general institutional issues raised by the Union is quite different, and should not be caught by the restriction in Article 32,09. To put it another way, in contrast to the case of Loyalist College (supra), there is still something of substance to decide here once we remove the two individuals from the equation. While I agree that Article 32,09 does restrict the ability of the Union to file policy grievances, and that one cannot ignore the language of the collective agreement, it is my view that the chairperson's interpretation expands the scope ofthe restriction beyond what was intended, namely that the regular grievance procedure for individuals not be bypassed. The Union would appear to be left without a way to grieve at all to deal with these institutional concerns, Perversely the Employer would be free to launch a grievance on the same issue under Article 32,10 of the Agreement. This cannot have been the intent of the parties, For all of these reasons I would have dismissed the Employer's preliminary objection. DATED AT TORONTO, this lih day of November, 2011. "Larry Robbins" Larry Robbins, Union Nominee 4