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HomeMy WebLinkAboutUnion 12-11-01In the matter of an Arbitration Pursuant to the Colleges Collective Bargaining Act of Ontario THE COLLEGE EMPLOYER COUNCIL FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY and ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (FOR ACADEMIC EMPLOYEES) Between: DURHAM COLLEGE (the Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION, LOCAL 354 (the Union) Re: OPSEU File #2011-0354-0001 AWARD Board of Arbitration Paula Knopf - Chair David Guptill, Employer Nominee Sherril Murray, Union Nominee APPEARANCES: For the Employer: Wallace Kenny, Counsel Meghan Houghton Sandra Bennett For the Union: Seung Chi, Grievance Officer Sheila Bell Kirston Arbour Debra Wrautins Michael McKeon David Smith Ryan Brown The hearing of this matter was held in Oshawa on October 4, 2012. This case involves a Union Policy Grievance under the Academic Collective Agreement alleging that Durham College [the Employer] is improperly classifying the position of Disability Advisor in the Support Staff bargaining unit instead of treating it as being in the Academic bargaining unit. The Support Staff Local Unit had been given notice of this hearing, however, it did not attended or seek standing in this proceeding. At the outset of the hearing, the Employer raised a preliminary objection to the Board of Arbitration’s jurisdiction over the case. Accordingly, the parties presented submissions regarding the jurisdictional issue and sought a ruling before any evidence was presented. This Preliminary Award is based upon those submissions and concludes that the essential elements of this Grievance preclude this Board of Arbitration from assuming jurisdiction to determine the merits of this case. The reasons for this are set out below. The Grievance document sets out the “Statement of the Grievance:” That the College has violated specifically, but not exclusively, Articles 11.04, 05, 14.03A1, 22.02 of the Collective Agreement and the C.C.B.A.1 in classifying the Disability Advisors as members of the support staff bargaining unit. The class definition in the C.C.B.A. reflects the work currently being done by the Disability Advisors. In order to understand the nature of the Union’s claims and the implications of the Employer’s jurisdictional objections, some context is necessary. The Union’s advocat gave a clear and helpful outline of the nature of the Union’s concerns and the reasons for the Grievance. While the opening statement does not constitute evidence and no conclusions have been drawn, the factual allegations that the Union is relying upon are all assumed to be valid for purposes of this Preliminary Award. The Union explained that Disability Advisors at Durham College work in the Disability Centre. Their duties focus upon ensuring that the academic environment is fully accessible to students with disabilities. The Disability Advisors work with Disability Counsellors (who are in the Academic bargaining unit), a technologist, and other 1 Colleges Collective Bargaining Act, S.O. 2008, Chapter 15 2 professionals dedicated to the same goals. The duties of the Disability Advisor were said to include: • Conducting intake interviews with students with disabilities to examine the educational, social and practical problems they may encounter • Referring students with disabilities to proper professional help • Facilitating discussions between students with disabilities, faculty and administration • Participating in the pre-admission process by making recommendations to the Registrar’s Office • Assessing, evaluating, and dealing with students with disabilities on an ongoing basis to assist in their emotional, social and educational development and problems • Assisting administration and faculty by identifying proper accommodations to be put in place • Providing educational information to students with disabilities to assist them in their endeavors • Providing one-to-one counselling to students with disabilities to assist them with personal, social, emotional and educational issues/problems • Participating in the orientation of new students with disabilities to the College The Union alleges that the core functions of the Disability Advisor are qualitatively and quantitatively equivalent to and/or include the duties listed in the Class Definition of “Counsellor” under the Academic Collective Agreement as set out in Appendix A to this Award, with the exceptions being that the Disability Advisors do not do Group Counselling or any “teaching as assigned.” While the Grievance Form stated that the remedy being sought was “dues lost as a consequence of improper classification,” at the hearing the Union indicated that the remedies it was now seeking were: 1. A declaration that the position of Disability Advisor should be included in the Academic bargaining unit; 3 2. An order that the three incumbents in the Disability Advisor position should be placed in the newly classified/recognized position within the Academic bargaining unit without interruption and without there being any posting or job competition; 3. “Any other remedy that this Board of Arbitration deems appropriate.” The Employer’s response to these claims was to assert that because of the nature of the remedies being sought, this is not a proper Union Grievance and is therefore not arbitral under this Collective Agreement. The Employer pointed out several potential implications of the remedies the Union is requesting: • An examination of the merits of the case would require extensive evidence and factual determinations regarding the nature of each Disability Advisor’s specific functions and responsibilities vis-à-vis the Class Definition of Counsellor in the Collective Agreement. • The current Disability Advisors do not have the necessary qualifications or experience to be placed in the Counsellor position. • If the Union were to succeed on the merits of the case, the Employer would have the choice of exercising its management right to either: a) Leave the job duties as currently defined and then post vacancies in the Academic bargaining unit that the incumbents could bid upon, OR b) Exercise its management right to refine the job duties and remove the duties that this Board of Arbitration relied upon to conclude that this is a position that belongs in the Academic bargaining unit. The result would then be that the modified positions would remain in the Support Staff bargaining unit, OR, c) Eliminate the Disability Advisor position altogether. The Employer stressed that each of the Disability Advisors has/had the right to claim that they have been improperly classified and have chosen not to do so, despite the positions being in the Support Staff bargaining unit for several years. Given the particular wording of this Collective Agreement, the Employer argued that in order for this to be a proper Union Grievance, the Union has to establish that it fits within the strict terms of Article 32.09: 4 The Union or Union Local shall have the right to file a grievance based upon 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 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 argued that the Union has not established that there has been a “patent violation” of the Collective Agreement because its case cannot be proven without the presentation of detailed evidence regarding the positions of each of the incumbents, as well as the duties of Disability Counsellors at the College. Further, the Employer submitted that this case does not “engage” or affect the rights of other employees because the remedies being sought are personal to only the three incumbent Disability Advisors. The Employer argued that if the Union had simply restricted its remedy request to a claim for Union dues, this might then have been deemed to be a proper Union Grievance. However, the Employer submitted that given the nature of the remedies being sought and the evidence needed to prove the Union’s claims, the following caselaw precludes this Board of Arbitration from taking jurisdiction over the case that the Union wishes to present: OPSEU and St. Lawrence College (Starkman, 17 November 2011);OPSEU and Fanshawe College (Knopf, 10 December 2007); OPSEU and Cambrian College (H. Brown, 11 September 2002);OPSEU and Fanshawe College (Brent, 22 February 1989); Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; OPSEU and Fanshawe College (H. Brown, 30 October 2009); OPSEU and Loyalist College (O'Neil, 29 May 2001); OPSEU and Northern College (Shime, 18 June 1992); OPSEU and George Brown College (Devlin, 8 June 1994); OPSEU and St. Lawrence College (Leighton, 13 April 2012); Shorter Oxford English Dictionary, 6th ed., "standard." On the basis of these cases and the terms of Article 32.09, the Employer asked that this Grievance be dismissed at this stage. 5 The Union responded to the Employer’s preliminary objection by strongly asserting that this is a proper Union Grievance. It was stressed that the Union has a direct interest in insuring that positions that belong within the Academic bargaining unit are properly classified as such. It was asserted that this Employer’s failure to place the Disability Advisors in this bargaining unit is a patent violation of the Recognition clause. Further, the Union argued that it has properly asserted that the facts will reveal a patent violation of the Collective Agreement that affects the rights of all employees because of the impact upon the size of the bargaining unit and the Union’s entitlement to dues, thereby establishing that this case falls within the exceptions spelled out in Article 32.02. The Union also stressed that it is the nature of the allegation and the essence of the Grievance that should determine arbitrability, not the remedy being sought. Therefore, the Union argued that the cases cited by the Employer are distinguishable. The Union submitted that the following cases support its claim that this is a proper Union Grievance under this Collective Agreement: Fanshawe College and OPSEU, (Knopf, December 17, 2002) and Humber College and OPSEU, (Schiff, May 25, 1999). By way of reply, counsel for the Union argued that the decision in Fanshawe College and OPSEU, (Knopf, December 17, 2002) was wrongly decided and is out of line with the rest of the case law in this area, as it cited above. Further, it was stressed that it is insufficient for the Union to simply assert that there has been a patent violation of the Collective Agreement; instead it was said that the Union must establish a patent violation in order to qualify as an exception under Article 32.09. The Decision This is a jurisdictional question. This Board of Arbitration’s ability to determine the merits of this case is strictly governed by the terms of the Collective Agreement and the specific context of the Grievance. Article 32.09 provides the Union or its Local with the ability to file grievances based on allegations of direct differences with the College arising out of the interpretation, 6 application, administration or contravention of the Collective Agreement. However, there are exceptions to this. The Union Grievance cannot be used to by-pass the individual grievance process, except in certain specific circumstances. There is no dispute that a claim that a person is improperly classified could be brought as an individual grievance. Under Article 32.09, a Union grievance cannot be brought for a matter upon which an employee would be personally entitled to grieve unless: • The Union establishes that the employee has not grieved an “unreasonable standard,” AND • The “standard” is patently in violation of the Collective Agreement, AND • The “standard” affects the right of employees. It is well accepted in the arbitral jurisprudence in this sector that all three criteria must be satisfied. If any one of the three tests has not been met, the grievance is not arbitral as a Union Grievance, see George Brown College and OPSEU, (Devlin), supra at p. 5. The question of whether the Union has met the test of establishing a “patent” violation of the Collective Agreement has also been well canvassed by the arbitrators appointed under the Academic Collective Agreement. Arbitrator Starkman ably summarized this in the St. Lawrence College case, supra. He noted that the term “patent violation” sets a high standard, requiring the Union to establish that the violation is “crystal clear” or “leaps from the page.” It is not sufficient to allege that there is an arguable violation of the contract; almost every grievance suggests an arguable violation. The Grievance in this case alleges a violation of the recognition clause and/or an improper classification of three employees. In real or practical terms, the determination of this case demands an analysis of whether the core duties of a job function fit within the scope of the Academic bargaining unit. The determination of that issue will require the examination of the job duties of each of the current Disability Advisors and a comparison of each with the details in the Class Definition of Counsellor. Therefore, it is very hard to view this as a case where the Union has established a “patent violation” of the Collective Agreement. The alleged violation is not crystal clear, nor is it apparent on its face. Something that requires detailed evidence involves differing situations and 7 demands the weighing of testimony falls far short of meeting the high burden of establishing a “patent violation” of the Collective Agreement. Further, this Grievance cannot be said to meet the test of affecting the rights of employees. As recognized by Arbitrator Brown in Fanshawe College (October 30, 2009), supra, at p. 10, Article 32.09 is intended to allow for Union Grievances to be processed in situations that could have been individual grievances only where it would involve matters that “impact broadly on members of the bargaining unit.” It is true that the question of inclusion of positions in the bargaining unit does have some impact on the bargaining unit as a whole, in terms of future union dues. But the remedy being sought in this case is one directed at the individual incumbent Disability Advisors. They are seeking reclassification and direct appointments into this bargaining unit. These are very individual remedies. The only impact on Union dues will be the potential of future dues if the positions are put, and are retained in the Academic Unit. Therefore the impact on the bargaining unit in terms of the potential of future dues is only an incidental aspect of this case. Frankly, there are few grievances that do not impact a bargaining unit in some way or another. However, it is clear that Article 32.09 has been consistently applied to insure that it is not allowed to be used to by-pass the personal grievance process where the matter involves personal claims. The essential nature of the case at hand must be recognized as something that involves the assertion of individual efforts to achieve reclassification. As such, it does not meet the criteria of Article 32.09. Given these conclusions and the requirement that the Union meet all three criteria in Article 32.09, there is no need to explore whether the Union has also established that there has been an “unreasonable standard.” Accordingly, despite the clear and able submissions of the Union, it must be concluded that the essence of this Grievance does not meet the criteria for a Union Grievance under Article 32.09. Therefore, this Board of Arbitration lacks the jurisdiction under this 8 Collective Agreement to hear and determine the merits of this case. As a result, the Grievance is hereby dismissed. Dated at Toronto this 1st day of November, 2012. __________________________ Paula Knopf - Chair I concur _______"David Guptill"________ David Guptill, Employer Nominee I dissent in part - see below ________“Sherril Murray”______ Sherril Murray, Union Nominee 9 Union Nominee’s Partial Dissent When a member of the support staff on an individual basis attempts a grievance reclassifying their position into the academic unit they generally face a further preliminary objection from employer’s counsel as to the arbitrability of their claim. However, in this case, “The Employer stressed that each of the Disability Advisors has/had the right to claim that they have been improperly classified and have chosen not to do so, despite the positions being in the Support Staff bargaining unit for several years.” (pg.3) In that the employer agrees that an individual has the right to grieve the reclassification, it is not difficult to understand why the majority of this Board has declined to assess whether the rights of the individuals have been abrogated. However the decision of the majority continues to disregard that there are no individual grievances and the Union has both an obligation and a right to pursue and police their collective agreement. As the Chair says “Frankly, there are few grievances that do not impact a bargaining unit in some way or another.” (pg 7) The majority continues to find that the grievance affects few individuals. With respect, I disagree. The class definition of counsellor as found on page 145 in the Collective Agreement is the standard which describes the work done by academic unit members. An allegation that that standard is met on the core duties of the position and yet the work is assigned outside the bargaining unit to which it is assigned by class definition and to some extent The College Collective Bargaining Act is the “patent violation”. It also violates the recognition clause, impacts on the potential of erosion of bargaining unit positions and a multitude of other entitlements. It offends the Trade Union’s sense of fairness as a possible misclassification results in members of two different bargaining units doing essentially the same work for dissimilar pay and benefits. Therefore to put these claims in context: The Union has established that the individual employee has not grieved, (and although the employer and the Board finds they could have, no such grievance has been filed) the exclusion of the “Disability Counsellors” from the Academic Bargaining Unit and essentially sending that work out of the Bargaining Unit is an unreasonable standard of conduct by the employer’s actions to include that work in the Support Staff Unit and in 10 violation of the recognition clause is a patent violation. As seen in the Fanshawe College and OPSEU, (Knopf, December 17, 2002) it is the Union’s submission the correct analysis and ruling was given, having regard to the recognition of the Union’s interest. Likewise in Humber College and OPSEU, (Schiff, May 25, 1999) at pgs 112 and 113 “The grievance focused not on the individual but the work they are doing, the scope of the agreement, coverage and damage to Union income.” All of which is respectfully submitted, Sherril Murray, Union Nominee 11 “Appendix A” CLASS DEFINITION - COUNSELLOR COUNSELLOR A Counsellor is responsible for assisting students and potential students to function effectively as learners and as individuals by helping them understand, prevent or overcome personal, social or educational problems that may hinder learning or their ability to cope with everyday living. The Counsellor's duties include: 1. a) Developing and maintaining appropriate counselling programs. 2. b) Interviewing individuals, by appointment, to explore personal or social difficulties or vocational/educational decision making, including: o - referring students as appropriate to proper professional help; o - facilitating discussion/dialogue between students, faculty and administration; o - participating in pre-admission interviewing and testing as required. 3. c) Group counselling as a non-instructional activity. 4. d) Testing and evaluation of individuals to assist them in their personal, educational/vocational development. 5. e) Assisting administration, faculty and staff, in a consultative role in identifying student problems, dealing with student problems, and relationship problems among students. 6. f) Providing educational/vocational information to students or directing them to available sources. 7. g) Participating in the orientation of new students to the College. 8. h) Teaching as assigned. In addition, the Counsellor may, from time to time, be called upon to contribute to other areas ancillary to the Counsellor's role, such as student recruitment and selection, student employment, liaison with community service programs and agencies, professional development and control of supplies and equipment.