Legal & arbitration victories

The key responsibility of faculty associations is service to its members: negotiating on behalf of members, making sure the employer abides by the terms of the collective agreement, and representing members, whether it be in a grievance, or in relations with the employer, students, the general public or governments.

From the beginning, fledgling faculty associations had to deal with labour relations issues whether they wanted to or not. What process governs hiring, evaluation, and firing (or non-renewal of contracts)? In the first year of operation, CNC hired 20 "masters" and let three go, one of whom allegedly bad-mouthed the principal in the local newspaper. A couple years later at Douglas College, a faculty member who was appointed by the CFF to work on a provincial committee so incensed the principal that his 3 year contract was summarily ended half way through. That termination raised the issue of whether the provincial federation should be involved in local labour relations issues, in this case one that had provincial representation as one of the factors. The CFF did not step in.

After faculty associations were certified as unions, they had all of the duties and responsibilities required of them by the Labour Code. Educating members, especially those handling negotiations and grievances, became very important. Leo McGrady, a labour lawyer long associated with faculty matters in BC, highlighted the importance of Capilano College's Labour Studies Program from 1975 until it ended in 2004. Thousands of labour activists took introductory and advanced negotiations and grievance/arbitration courses, since labour relations in post-secondary institutions are different from government, industry, and other sectors of the economy. 

Leo, who has worked with the CFF, CIEA & FPSE for 40+ years, has handled over 100 arbitrations, many LRB cases, and a few Supreme Court BC & Supreme Court of Canada cases. Many of these have set precedents on how employers and employees relate to one another.  

The CFF did not get very involved in labour relations in the 1970s beyond sharing information, and one of the pushes for a more rigorous provincial model involved developing expertise that could be available at the provincial level to assist locals to serve their members. In the 80s, CIEA's office and General Secretary Tom Beardsley started to provide labour relations support, but the Salary & Working Conditions Committee still focussed more on negotiations than grievances. Locals were left mostly on their own handling grievances and bearing the cost of arbitrations, which could often be quite expensive.   

Three things changed CIEA's ability to help locals: 

  • creating the strike/lockout defence fund after 1986 gave CIEA the ability to financially support  local members on strike
  • splitting SWCC into committees for bargainers and stewards allowed more focus on grievances 
  • hiring labour relations staff

The Grievance Arbitration Review Committee was established in 1986 to assist locals in the grievance process, and then pay for arbitrations if the cases met agreed-on criteria. See the process in FPSE's Policy & Procedures Manual, Sept 2019, pp. 45-46.

A case starts when a local files a grievance on behalf of a member or members against the employer over a violation of the collective agreement. This happens after a member or the employer brings an issue to a steward, who investigates and who may try to get an informal resolution. If that's not possible, and often on the advice of a FPSE staff rep assigned to the local, a grievance is filed. There are timelines associated with the process, though with mutual agreement between the empower and the union, they may be waived or modified. 

Step 1 is usually taken to a Dean or VP - what's the violation of the collective agreement, and what is the proposed remedy. If the employer agrees there has been a violation and on the remedy, that matter is closed. If the employer denies the grievance, it goes to the next step.

Step 2 - Vice President Academic. Again, the union presents the case, what was violated, what's the remedy, and may deal with the reason it was denied at step 1. If the VP agrees there's been a violation and with the proposed remedy, the matter is closed. If not, it goes to the final step in the institution (though in cases of termination there might be an appeal to the Board of Governors).

Step 3 - President - again, the union presents the case, the President deliberates, and either denies or accepts the grievance. If the answer is still no, the grievance must go to a third party to settle it.

If the grievance is not settled locally, the local can apply to FPSE's Grievance and Arbitration Review Committee. The local's staff rep works up the case, and takes it to one of the regularly scheduled GARC meetings. GARC is composed of the chair, FPSE's Secretary-Treasurer, the Chair of CARC (the Contract Administration and Review Committee), and the labour relations staff reps. Grievances are considered to send to arbitration for explicit reasons:

  1. "Winnability" on the basis of the law and facts
  2. Expense - is the cost commensurate with the value of the remedy?
  3. Significance to the post-secondary system and the local collective agreement
  4. Political significance to the local and FPSE

Other possible solutions to the grievance may be explored, or the committee might ask for more information, or reject it. If sent to arbitration, FPSE covers the costs, but it now holds carriage of the grievance.

CIEA (and later FPSE) have had wonderful labour relations staff reps: Tom Beardsley & David Reynolds in the 80s; Linda Sperling, Jack Campbell, Donna Abram, Paul Johnston, David Piasta, Lee Whyte, and Bonnie Pearson in the 90s; and since 2000, Jeff McKeil, Weldon Cowan, Lesley Burke-O’Flynn, Zoe Towle, Sean Hillman, Leah Squance, Lucia Salazar, and Tim Armstrong. 

FPSE set up a grievance arbitration database in 2009 to track cases and expenses because legal expenses had increased from $136,737 in 2001 to more than double by 2008 ($280,367), and from there spiked up to the $500,000 range for three years (2011 - 511,424; 2012 - 532,360; and 2012 - 484,848). Why? Because employers were not resolving grievances locally, and the number of arbitrations increased dramatically. What were the issues? Discipline and termination, regularization, layoff and recall dominated.  

However, here are some select cases that made a difference to faculty members, both individually, for the local union, and for members across BC:

1977 - Leo McGrady - Carol Campbell v North Island College - unfair - non-renewal because of union activity (member reinstated)

  • The Principal, Dr. Wing, who had a noted anti-union bias, did not renew a contract for work for the Employment Orientation for Women Course, instead giving it to a new hire. Wing did not attempt to evaluate the performance of the terminated member. The Labour Relations Board ordered payment of lost wages ($3,200) and first right of refusal the next time the course was offered. 

1983 - Leo McGrady - FACNC v CNC - arbitrator Richard Bird - Ben Malcolm & Gwen Bibaud - layoffs

  •  Faced with a budget crisis late in March 1982, the college gave layoff notice to 6 instructors. The faculty association was given two days' notice before individuals were notified, far less than had been the previous practice in an effort to find alternatives before notice was given. At issue, though, was the efforts the college made after notice and before termination on July 31. Arbitrator Bird did not agree that every effort had been made, and he ordered the reinstatement of 5 of the 6 faculty and lost wages. 

1984 - Leo McGrady - LRB panel - FACNC v CNC - re extending certification to part-timers

  • the board had to decide whether there was a community of interest between FT and PT faculty. When faculty associations were certified in the 70s, the board had said that PTers did not do the same work as FT faculty, and thus should not be included in the bargaining unit. The panel ordered that PTers be included in the FACNC bargaining unit. 

1988 - Leo McGrady - Supreme Court of Canada charter case - Douglas Kwantlen - application of the Charter, and mandatory retirement

  • A grievance was filed on behalf of two faculty members who were due to retire at age 65 (according to a provision in the collective agreement). They argued that mandatory retirement was a violation of the Charter. Arbitrator McColl ruled that mandatory retirement was a violation of the Charter, and the College appealed his decision. The Supreme Court of Canada ruled that a tribunal could have jurisdiction over a Charter matter; that a collective agreement is like a law with respect to s. 15 (1) of the Charter; that the Charter does apply to colleges (unlike autonomous universities); and that mandatory retirement was discrimination on the basis of age. Before the final decision was rendered, the two employees were reinstated.     

2002 - charter challenge of the Public Education Flexibility and Choice Act.

  • Bill 28, passed by the legislature in January 2002, was part of a trio of anti-labour bills introduced by the BC Liberals. These bills stripped collective agreement provisions that, in the case of college faculty, went back to the 1970s. However, the 15% pay cut and contracting out provisions of Bill 29 were arguably the most egregious, so the health unions launched their challenge first. In 2007, the Supreme Court of Canada struck down key sections of Bill 29, as no consultation had taken place before legislation was passed. The unions negotiated $75 million in compensation early in 2008. The BCTF also took the BC Government to court, and their battle lasted 14 years. In the end, the Supreme Court of Canada accepted a minority judgement of the BC Court of Appeal, thus reinstating class size and composition language that had been stripped in 2002. Hiring 3500 teachers cost the government several hundred million dollars (January 2017 - $100m + $80 million; March 2017 - another $150m for 2,600 teachers) . In post-secondary, CIEA and its locals fought the implementation of Bill 28 on the ground, and threatened CAUT censure of any institution that violated a collective agreement. A charter challenge was readied and filed, but never acted on, as there had been little to no damage done by the Act. 

2005 - Leo McGrady - Supreme Court of BC 119 - Madam Justice Allan - VCC v VCCFA - Education Council not consulted on change to program

  • At a meeting of the Education Council on March 5, 2002, Cheryl Jibodh, a College Instructor in the ELS Department, raised the issue of proposed cuts to certain courses and suggested that the issue should be considered by the Education Council for the purpose of providing advice to the Board. At that meeting, [Vice President and Dean responsible for ELS programs Moira Henderson stated that the same ELS courses were being run with three different term lengths and "rationalization" would make all ELS term lengths equal to the shortest current term length (September to December). She said that the issue would come to the Education Council.[It did not][para 38]At the heart of this dispute is the meaning of the opening words in s. 23 of the Act: “An education council must advise the board, and the board must seek advice from the education council, on the development of educational policy” for certain specified matters. It is clear that if the Board chooses to develop an educational policy on a matter enumerated in s. 23(1), it must seek the advice of the Education Council. “Changes in the length of or hours of courses or programs offered by the institution”
  • is specifically itemized as an educational policy and the subject matter falls squarely within the Policy developed by the Board. [40] In this case, I conclude that the Board has improperly attempted to circumvent the legislation by developing a Policy that removes any input of the Education Council into the development of educational policy with respect to the subject matter specified in s. 23(1)(e). [41] By delegating all decisions in this area to the Vice President of Education or his or her delegate, the Board purported to improperly transfer the statutory power given to the Education Council. Moreover, the Policy precludes the Education Council from any future role in matters that clearly come within its advisory mandate. The evisceration of the Education Council’s role is further underscored by the provision that all changes will be presented to that body only “for information.” [42] The petitioner is entitled to a declaration that the Policy is contrary to the Act. [43] Further, the Board cannot avoid consultation with the Education Council by characterizing changes in the length of or hours for courses or programs as administrative operational decisions made by the institution. All educational policy decisions encompassed by s. 23 are to be made by the Board, after consultation with the Education Council.

2011 - Jamie Baugh - Kwantlen v KFA - arbitrator Emily Burke - Lyndsay Passmore - mat leave & regularization

  •  Passmore was a non-regular faculty member who was due to be regularized if she'd not gotten pregnant. She did, and Kwantlen declared her ineligible because she was not available for work. The union grieved the discriminatory decision, and in mediation, arbitrator Burke got the parties to agree to make Passmore whole in all respects.   

2013 - Leo McGrady - NWCC v Academic Workers' Union - arbitrator Rod Germaine - layoffs (members reinstated or given ed leaves)

  • In response to a budgetary shortfall, the employer called all three unions together and said it would begin Section 54 layoff proceedings. When asked, it never provided details, so the union grieved this violation of the CA and Sec 54 of the Labour Code. Shortly thereafter, the College gave a blanket lay-off notice to the AWU, saying that it had to give notice to all regular faculty – the entire bargaining unit - but that it would figure out later who specifically would be actually laid-off. More grievances followed. The Board called an informal meeting in Terrace, and got the college to rescind the mass layoff and the union dropped its grievances. The College then proceeded with specific layoff notices for 10 faculty. Joint committees were set up, and the College insisted that Masters degrees were needed in putting together work. The effect of this was to limit the courses available and to reduce bumping options. That, and the fact that none of the union's suggestions were entertained, and long delays, prejudiced the faculty members involved. Arbitrator Germaine determined that the College violated the seniority rights of these faculty. 

2015 - Jamie Baugh - Capilano v CFA - Supreme Court of BC 2014 BCSC 712 - Senate & program cuts

  • In the wake of university status granted to Capilano in 2008, with no additional funding, and without nearly 20 years of university-college status to build up programs, a new President ran roughshod over the collective agreement and the Senate's legislated responsibility to advise on program cuts in June 2013. Like the provision in the College & Institute Act that requires the Board to seek advice and Education Councils have the duty to advise the board, the same applies to Senates and Boards of the Special Purpose Teaching Institutions. This did not happen, and Mr. Justice Savage ruled that the university had violated the act, and that submitting a draft budget to a Senate sub-committee did not constitute proper consultation of the Senate by the Board.  

2013-2020 - Leo McGrady - Okanagan College v OCFA - arbitrator Arne Peltz - human rights & age discrimination

  • this ongoing case came about when mandatory retirement ended in 2008, and institutions said they would no longer cover several key medical benefits for those working past 65. When the union grieved the denial of benefits to a faculty member(s) who was over 65, the College denied because the carrier's limitation was valid. When the case was forwarded to arbitration, the BC Attorney General joined the College in opposing post-65 benefits.
  • The AG and the College have raised every possible technical objection to delay and derail the case. The College first argued the arbitrator lacked jurisdiction and that the matter belonged in Court. The Arbitrator dismissed that objection and found he had jurisdiction.
  • The College and the AG then attempted to exclude the key expert report filed by the Union from an expert whose reports have been accepted and commented on favourably by the Supreme Court of Canada and the Ontario High Court in precedent setting Charter litigation. The Arbitrator also dismissed these objections and admitted the report.
  • The case continues.

2019 – Leo McGrady – Quest University and Quest University Faculty Association.

  • FPSE and QUFA successfully organised BC’s only non-profit private University, in Squamish, BC. They also succeeded in overcoming employer objections to the union’s application for certification at the Labour Relations Board. QUFA joined FPSE as Local 24 in March 2020.