Ontario Public Service Employees Union v. Dr. G. J. Bissett and The Board of Governors of Fanshawe College of Applied Arts and Technology, 1984 CanLII 920

[1984] OLRB Rep. April 588

2283-83-U Ontario Public Service Employees Union, Applicant, v. Dr. G. J. Bissett and The Board of Governors of Fanshawe College of Applied Arts and Technology, Respondents.

BEFORE: R. D. Howe, Vice-Chairman, and Board Members F. W. Murray and L. C. Collins.

APPEARANCES: Michael Pratt and Mike Grunwell for the applicant; W J. Havter, G. J. Bissett and P T Myers for the respondents.

DECISION OF R. D. HOWE, VICE-CHAIRMAN, AND BOARD MEMBER F. W. MURRAY; April 16, 1984

1. This is an application to the Board under section 89(6) of the Colleges Collective Bargaining Act (the "Act") for consent to institute a prosecution of the respondents for alleged violations of section 75(1) of the Act, which provides:

No person who is acting on behalf of the Council or an employer shall participate in or interfere with the selection, formation or administration of an employee organization or the representation of employees by such an organization, but nothing in this section shall be deemed to deprive the Council or an employer or any person acting on behalf of the Council or an employer of his freedom to express his views so long as he does not use coercion, intimidation, threats, promises or undue influence.

3. Paragraph 4 of the application reads:

The material facts upon which the applicant intends to rely as establishing the offence are as follows:

(A) In September, 1983, the terms of reference of the Academic Coinmittee were modified in such a way as to include Bargaining issues.

(B) Memos dated October 17, 1983 and November 2, 1983 from G. J. Bissett to M. Grunwell.

(C) Memo dated December 13, 1983 from G. J. Bissett to M. Grunwell with copies to S. O'Flynn, H. Rawson, W. J. Pillsworth, A. D. White and Members of the Academic Committee.

(D) Employer grievance dated December 15, 1983 and signed by G. J. Bissett.

(E) The subsequent public posting of the said ployer grievance.

4. In his opening statement on behalf of the applicant, O.P.S.E.U. Staff Representative Michael Pratt advised the Board that the applicant had found it necessary to seek consent to prosecute instead of filing a section 77 complaint because the Board's jurisdiction to inquire into a complaint under that section does not extend to alleged contraventions of 75(1).

5. The applicant holds bargaining rights for all academic employees at the Colleges of Applied Arts and Technology covered by the Act, including Fanshawe College of Applied Arts and Technology (the "College"). Its most recent collective agreement with the Ontario Coun­cil of Regents for Colleges of Applied Arts and Technology is effective from September 1, 1982 to August 31, 1984. That agreement is negotiated on a province-wide basis and applies to all the colleges covered by the Act.

6. An Academic Committee (also referred to in this decision as the "Committee") has been in existence at the College for a number of years. At all material times its mandate has been to review and provide recommendations to the College Administration concerning matters of general policy and procedure relating to the academic processes of the College, including evaluation of academic programs, courses, student achievement, College (academic) services, and faculty; recruitment of students and placement of graduates; concepts of teaching/learning and curriculum design; collection, storage, and retrieval of academic data; and other matters having an impact on the academic process, such as the conduct of faculty or students, the use of classroom facilities, and scheduling. Mike Grunwell, who was the President of the applicant's Local 110 at all material times, testified that there has been a "longstanding history" of labour relations problems at the College. He identified one of the irritants in the relationship between Local 110 and the College as being the fact that since 1975 the terms of reference of the Academic Committee have included general policy and procedure concerning conduct of faculty, evaluation of faculty, and student complaints concerning faculty conduct. It was Mr. Grunwell's view that if the College wished to obtain input concerning faculty mem­bers' views in respect to those matters, it should do so through their bargaining agent. Although he had expressed some concern to the College about the situation prior to the fall of 1983, no grievance, complaint, application for consent to prosecute, or other action was ever initiated.

7. In June of 1983 Gerald Bissett became the Vice-President (Academic). Prior to accepting that appointment, Dr. Bissett had held a number of other educational administrative positions, including an academic vice-presidency at a Montreal community college. As Fanshawe College's Vice-President (Academic), Dr. Bissett's responsibilities included chairing the Academic Committee. During the summer of 1983, he reviewed the Committee's terms of reference and discovered that 58% of the voting power on the Committee was in the hands of the College's Administration, with 38% being held by elected faculty members, and the remainder by students. Since that ran counter to his "philosophy of consultative process within an academic institution", he decided to recommend that the Committee's terms of reference be changed "to give more say to the faculty and students, and less to the administration". Accordingly, he drafted for consideration by the Committee (and the administration) revised terms of reference which provided for 35 voting members, of whom 18 would be (elected) faculty members. (He also recommended that the terms of reference be changed to specify the Vice-President (Academic), rather than College President, as the member of the Administration to whom the Committee would make recommendations for the establishment of College academic policies and procedures.) During the last week of August and the first three or four weeks of September, Dr. Bissett met with members of the Committee individually and in small groups to explain the proposed changes in the Committee's terms of reference and develop a rapport with the faculty. Unfortunately, he did not consult with Mr. Grunwell or any other Union official concerning the proposed changes. While it was not suggested that his failure to consult with the Union breached the Act or the collective agreement, it appears to us to have been an error in judgment which did little to endear him to Mr. Grunwell.

8. The revised terms of reference were discussed at the September 28, 1983 meeting of the Committee and were tabled to the following meeting, which was held on October 12, 1983. At that meeting, Dr. Bissett reassured Committee members that the revised terms of reference did not encompass the evaluation of individual faculty members, but only the principles and instruments to be used in evaluation procedure. Following a discussion of the matter, a motion was passed recommending to the College President that the Committee's existing terms of reference be replaced by the revised terms of reference.

9. On October 13, 1983, Dr. Bissett received the following memo (dated October 12, 1983) from Mr. Grunwell:

One of the most vexatious practices of the college over the years has involved repeated attempts by senior administration to undermine the sole authority of the Ontario Public Service Employees Union to speak on behalf of members with respect to terms and conditions of employment. A favourite ploy was to establish alternative structures (usually committees) through which input from a non-representational group of our members was solicited. Since these vehicles were not sanctioned by Local 110 and the individuals were not authorized to speak on behalf of the bargaining agent, the process was entirely improper and represented a completely unlawful attempt to make an "end run" around the duly recognized bargaining agent.

The union considered such practices as intolerable and reacted accordingly. In recent years, Mr. Rawson has recognized that such "Colvinesque" practices are counterproductive and has repeatedly assured the Local 110 that they would not be repeated during his incumbency as President.

Notwithstanding the foregoing, we understand that there are proposals afoot to amend the terms of reference of the Academic Committee to include:

Sect.6

b) "Evaluation of programs ... AND FACULTY".

f) "Other matters such as the CONDUCT OF FACULTY …”.

(Emphasis added)

Clearly these issues involve terms and conditions of employment. As such they fall within the exclusive jurisdiction of the lawful bargaining agent.

We must therefore advise that persons elected to the Academic Committee are not empowered by OPSEU to represent members on terms and conditions of employment and will do so at their peril. Similarly any attempt by management to discuss and/or arrive at agreements with such persons will be viewed as a wilful provocation since it will involve a refusal to recognize the sole authority of the bargaining agent to speak on behalf of members.

Mr. Grunwell also arranged for a copy of that memo to be forwarded to each of the faculty members on the Committee, and to the College President. Dr. Bissett replied as follows in a memo dated October 17, 1983 (which was also copied to the faculty members on the Committee and to the College President):

Please be assured that I will be pleased to answer your memo of 1983 10 12 on receipt of the definition of the word "peril" as referred to in the first sentence of the last paragraph thereof.

10. That memo in turn generated the following reply, the sarcastic tone of which clearly indicates that Dr. Bissett is not the only individual censurable for errors in judgment in respect of this matter:

I note your request of Oct. 17 for a definition of the word "peril". I am not so presumptuous as to believe that I can improve on that contained in the Oxford English Dictionary; therefore, I refer you to that source for your further enlightenment.

It may be that your communication was intended to discover the nature of the peril rather than the definition of "peril". It remains our position that those who undermine or allow to be undermined the authority of their union on bargainable issues are, indeed, at peril. The precise nature of the peril and the steps which might be taken to combat that peril are concerns internal to the union, which concerns I will discuss with union members should the need arise.

That memo led Dr. Bissett to conclude that "war had been declared". He "took the opening comment as a snarky and totally unprofessional remark", and concluded that, since he was new to the College, the system, and the province, "an operation had been started to test the new boy on the block". In addition to providing copies of that memo to the faculty members on the Committee, Mr. Grunwell also sent them a separate memo (dated October 24, 1983) concerning the Union's position.

11. On November 2, 1983, Dr. Bissett forwarded the following memo to Mr. Grunwell and to each of the members of the Academic Committee:

In response to your memorandum of October 12, 1983, and following

reception of your reply to my communication of October 17, I must first indicate my surprise vis-a-vis the points you are making. In fact, the en­tire contents of the former seem to revolve around a misconception on your part:

"... We understand that there are proposals afoot to amend the terms of reference of the Academic Committee to include Section 6

(B) 'Evaluation of programs ... AND FACULTY'

(F) 'Other matters such as the CONDUCT OF FACULTY ...'

In reality, as I carefully pointed out to members of the Academic Committee in my meetings with them, not one iota has been changed in either section 3 or 6.

I, consequently, am perplexed as to your seeming agitation upon discovering the wording in Sections 6B and 6F when such has been the case for quite some time now with no previous (to my knowledge) difficulties arising in consequence of that wording.

Quite apart from the aforementioned objection of yours, I am very concerned about your perceptions as to how the College should be operated. It would seem that you consider only individuals specifically appointed by OPSEU can discuss with the Administration any point which can have an impact on the Faculty's working conditions.

Unfortunately, that perspective seems rather simplistic in concept and un­realistic in approach. In fact, most, if not all, aspects of College life can be said to have, to a greater or lesser degree, some influence on one's working conditions. Thus, scheduling, budgetting, allocation of classrooms, etc. etc. would have to be discussed only with those appointed by the Union and, presumably, only in one forum — the College Committee. Totally impractical!

In addition, while you seem to suggest that all issues should be dealt with from one perspective — the Collective Agreement, I would submit that there is another very important element — pedagogical viability!

I would concur that decisions cannot be taken without, at some point in the deliberations, having considered the Collective Agreement. By the same token, no decisions should be finalized unless the financial implications have been scrutinized. But, surely one can nevertheless discuss professional issues from an academic point of view! While it might seem blasphemous to you, the reality is that Fanshawe College does not exist because of its employees but because there is a student clientele which has needs and deserves to have those needs addressed professionally.

Faculty evaluation, like all other types of evaluation, is an important part of how an educational institution attempts to verify its effectiveness. As such, it seems eminently sensible to have the Academic Committee deal with the philosophy and the instruments associated with evaluation.

Perhaps your fears might be assuaged somewhat if I remind you that it has been the practice of the Administration to consult with OPSEU prior to any change being made in the evaluation process.

As Vice-President (Academic), I am responsible for ensuring academic integrity within the parameters established by the Collective Agreement and the budgetary constraints. I can attempt to accomplish this in two ways:

1. Sitting in my ivory tower on Mahogany Alley

OR

2. Consulting with a variety of individuals or groups interested in the various issues associated with academic excellence.

I would submit that the latter is a more intelligent approach and will result in a greater number of well-informed decisions. Towards this end, I have recently suggested and, subsequently, received approval for changes in the Terms of Reference of the Academic Committee whereby the faculty members are given a majority of votes, the students' power is greatly enhanced and the Administration alters its role to one of making deci­sions after the necessary input has been received. The point is, I NEED to know how the faculty and students feel and why they think along certain lines. I, consequently, strenuously object to your attempting to curtail the teachers' rights and duty to express their point of view in a setting which is uncontaminated by interference.

Teachers have fought for centuries for Academic Freedom. While I would contend that "freedom is not license", I would suggest that there is a necessity for an ambience where individuals can express their opinions freely.

It is vis-a-vis the last point that I recently asked for your definition of "Peril" as referred to in your memo of October 12. Rule through fear has historically been shown to be folly. For a Union President to threaten union members would seem to be unwise as a leadership style. It is, of course, the decision of the rank and file if their Local is to be managed in a truly representative fashion or in a dictatorial manner. I can only hope that your position on this issue reflects the former method, as the Administration is dedicated to having an "open” environment where freedom of expression on all matters by all members of the College Community is an undeniable right.

Since you refuse to identify the threats one faces in speaking on faculty evaluation, could you at least identify that part of the union constitution one would be charged under should one choose to exercise what I con­tend would be his rights (in our system of justice there must be a law before one can break the law)? For the purpose of answering this question, allow me to quote from Constitution, 1981 Edition — Ontario Public Service Employees Union:

"Article 22

DISCIPLINE

22.1 Any member of the Union is liable to be charged, tried and found guilty of an offence against the Union if s/he:

(a) Fails to comply with this Constitution, with regulations made pursuant to it, or with duly-approved by-laws adopted by his/her Local or other subsidiary body of which s/he is a member;

(b) Fails, when required to do so, to account properly for receipt and disbursement of union funds and for receipt and disposition of Union funds and for receipt and disposition of Union goods and equipment;

(c) Misappropriates or otherwise fraudulently obtains any funds or property of the Union;

(d) Obtains or retains membership through misrepresentation or fraudulent means;

(e) Disrupts or obstructs any Union meeting or Convention to the point where the business of the meeting may not be fairly and reasonably conducted;

(f) Promotes, solicits, encourages, advocates, or knowingly assists others to promote, solicit, encourage, or advocate the withdrawal of members from the Union;

(g) Publishes or circulates, either within the Union or outside, false reports or misrepresentations about the Union or any Officer or member of the Union with respect to the activities of the Union or members.

(h) Solicits funds or advertises or seeks personal financial gain, by using, without authorization, the name of the Union or his/her position in it or lists of members.

(i) Wrongfully and without just cause interferes with any Officer or official of the Union engaged in the proper discharge of his/her duties.

(j) Institutes proceedings under this Article which are vexatious or frivolous."

How would the threatened accusation be worded?

It also seems that you do not understand the discrepancy between "recommendation" and "agreement". While I, too, could refer you to the Oxford English Dictionary for enlightenment I will refrain from doing so. Instead, let me point out that the Academic Committee discusses issues of a pedagogical nature from an academic point of view. It subsequently makes recommendations to the Vice-President (Academic). Any agreement, if such were to be negotiated, would be reached at the College Committee.

Finally, for future reference, I would like to suggest that, when a seeming inconsistency in our administrative style vis-a-vis good management occurs, you call the appropriate College Officer to talk the situation over before sending memoranda to numerous people. In that way, misconceptions such as the one which precipitated this entire discourse, can easily, professionally and efficiently, be cleared up.

In summary it would seem that:

1. You have been incorrectly informed about recent suggestions to changes in terms of reference of the Academic Committee.

2. The College exists because of the students, not for its employees.

3. The Vice-President (Academic) must be able to consult with all individuals so as to ameliorate and widen his perspective of all issues under his jurisdiction.

4. We must develop an atmosphere where discussions on areas of a professional nature can be freely held.

5. Threatening union members may be an infringement on rights of both the Administration as well as the Union itself.

6. It must be emphasized that no agreement would be negotiated at the Academic Committee. Recommendations, however, would be forthcoming as a result of discussions emanating from a pedagogical environment.

7. Fanshawe College would be better served if a more informal type of communication preceded the issuance of memoranda filled with threats and inflammatory language.

NOTE: Because of the potential seriousness of this situation, which could be the muzzling of the Academic Committee in some of its deliberations if we acquiesced to your demands, I have concluded that I should share with all members the contents of these memoranda.

12. The "war of words" continued with the following memo dated November 7, 1983 from Mr. Grunwell to Dr. Bissett (with copies to the faculty members on the Academic Committee):

This is in response to yours on November 2.

I will deal first with your perplexity at the Union's position, which perplexity was outlined in your first 3 paragraphs. Your concern appears to centre on the first sentence of the 3rd para in my memo to you of Oct. 12. If so, your professed desire for less formal types of initial com­munication on issues (your item 7, p.5) seems somewhat hollow. You could have asked for clarification in mid October (as one of the other committee members did) and such would have been provided. I enclose a copy of my response to the member who raised the issue; I have however deleted the member's name.

I will not waste my time responding to your next 13 paragraphs (most of which are irrelevant to the issue) other than to observe that:

a) My "simplistic" and "unrealistic" view of employer-employee relations is supported by a Masters Degree in Management Science and based on a considerable familiarity with relevant labour legislation and arbitral jurisprudence.

b) The provisions of Art. 22 of our Constitution (you have seen an outdated copy by the way) are no concern of yours. It would have been more meaningful for you to have read the Colleges Collective Bargaining Act, Sects. 52(1), 53 and 76, also Art. 1.01 of the Collective Agreement.

c) You seem to be carrying on in the fine Fanshawe tradition of ignoring the union, the collective agreement, the law and anything else which would interfere with your right to do as you please. This modus op­erandi has annually resulted in more grievances at Fanshawe than at all other colleges combined. No doubt that will continue too!

My summary response to your summary is:

1. I have not been incorrectly informed about anything. My concerns were, are and will continue to be about unprincipled attempts by management to undercut the lawful role of the Union on bargainable issues and to use my members as unwitting allies in that process. These concerns take on a new urgency since you have restructured the committee.

2. The College may well exist because of the students but you will deal with the Union on terms and conditions of employment because the law requires you so to do.

3. Your right to do whatever you wish as academic V.P. is substantially constrained by, inter alia, the Colleges Collective Bargaining Act and the Collective Agreement.

4. You may freely discuss "professional issues" wherever and with whomever you wish. You will, however, discuss bargainable issues with the Union representing the affected employees because the law requires you so to do.

5. I do not recall threatening Union members. I merely observed that collusion with management in attempting to undercut the lawful role of the Union would be ill-advised and would place members "at peril". I cannot understand your preoccupation with the disciplinary measures the Union might take against them unless perhaps you recognize the fundamental impropriety in asking these members to become your collaborators in undermining their Union and are concerned for their safety.

6. My answer to your point 4 seems also to cover this.

7. This cuts 2 ways as I have already observed in my para 2.

13. On or about December 13, 1983, the College filed the following grievance with the Union, in the form of a memo from Dr. Bissett to Mr. Grunwell, with copies to the Union Grievance Officer, the College President, two other named individuals, and the members of the Committee:

We had hoped that, over the past few weeks, you might have modified your position regarding the "peril" in which your memo of 1983 10 12 indicates that members of the Academic Committee will find themselves if they continue to discuss certain topics within that committee. Subsequent correspondence and other events make it clear your position has not been modified, and lead us to conclusions that are totally unacceptable to the College.

Prior to stating those conclusions, let me briefly summarize the history of this matter:

— This Fall the Academic Committee terms of reference were modified (Appendix 'A'). Both before and after modification, these terms of reference make it clear this committee's purpose is to provide recommendations to the College regarding matters related to academic processes.

— Your memo of 1983 10 12 (Appendix 'B'), which was copied to faculty members of the Academic Committee, begins by accusing the College of unlawful activities, centres on your erroneous view of certain topics under review by that Committee, and concludes with a non-specific threat against faculty members as well as further accu­sations against the College.

— Our exchange of memos dated 1983 10 17 and 18 (Appendices 'C' & 'D') affirm there is a threat but do little to elaborate.

— Your Memo of 1983 10 24 (Appendix 'E') to faculty members of the Academic Committee provides the rationale for your earlier threat, and for your belief that the Union has the "sole authority .... to speak on behalf of members."

— My memo of 1983 11 02 (Appendix 'F') provides the College view of this matter.

Therefore: Firstly, be advised that we do not agree that any faculty members have ceded the right to speak freely with the College on matters of mutual concern and interest. Additionally, the terms of reference for the Academic Committee (Appendix 'A') make it eminently clear that this Committee is not a bargaining forum. We are extremely concerned that a Union officer would attempt to interfere with faculty members (be they Union members or not) involved in legitimate discussion of matters re­lated to the very purpose of the College.

Secondly, be advised that we conclude that you do indeed intend faculty members of the Academic Committee to feel under threat if they continue to participate fully as elected members of the Committee. We further assume (from your reference in Appendix 'E' to non-Union members) that your ability to carry out any threat is linked to the question of whether or not the faculty member is or is not a member of the Union.

We believe your actions constitute an attempt to intimidate and coerce faculty members and the College to act in accordance with your wishes. This action is not only odious, but clearly is an attempt to interfere with legitimate College processes.

In view of the above, the College grieves that Local 1 10, through its President, stands in violation of Article 2 of the Collective Agreement.

By way of remedy, the College seeks for Local 110 to:

— Declare that the Collective Agreement has been violated.

— Retract all offending correspondence and apologize to those to whom its content is directed.

Refrain from any further action of a similar nature.

Article 2 of the collective agreement provides as follows:

RELATIONSHIP

2.01 The Colleges and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of them or their representatives or members because of an employee's membership or nonmembership in the Union or because of his activity or lack of activity in the Union or because of his filing or not filing a grievance.

2.02 The Union further agrees that there will be no solicitation for membership, collection of dues, Union Executive or membership meetings or other Union activities on the College premises, except as specifically set out in this Memorandum or by written permission of the College concerned, but such permission shall not be unreasonably withheld.

14. A copy of that grievance was posted on a bulletin board in the Maths and Sciences office by the Department Chairman, a member of management excluded from the academic bargaining unit. That bulletin board is used primarily by the Department Chairman to post notices and other materials which he wishes faculty members to see, including the materials pertaining to Academic Committee meetings. Copies of the other memos between Mr. Grunwell and Dr. Bissett concerning the Academic Committee were also posted on that bulletin board. There is no evidence before the Board that the grievance was posted in other locations on the campus, or that the posting in the Maths and Sciences office was done at the direction of Dr. Bissett or any other senior member of management. Indeed, Dr. Bissett testified that he did not instruct anyone in the Administration to post that grievance.

15. Since the administration had been experiencing what they perceived to be "less than a constructive atmosphere" at the College Instructional Assignment Committee (the "C.I.A.C."), it was decided that a second College grievance would be filed. The C.I.A.C. consists of three persons appointed by the College and three persons appointed by the Union, including Mr. Grunwell. Under Article 4.02(a) of the collective agreement, its functions in­clude considering and resolving faculty complaints concerning inequitable instructional assignments. That second College grievance was filed with the Union on December 15, 1983. It reads:

Over the past several weeks, it has become clear from statements and actions by Union members of the C.I.A.C. that several individual complainants and Local 110 are refusing to provide the committee with the particulars of their complaints, or with the information which leads them to believe that the workload involved is inequitable.

The College takes the position that such refusal renders it impossible for the committee to engage in meaningful discussion or to properly consider a claim of inequity. Such refusal defeats the primary purpose of the C.I.A.C. Further, since the committee is unable to properly deal with such claims, both the complainants and the College are denied the benefits of natural justice and of any remedial action which might have been warranted.

In view of the above, the College grieves that the several individual complainants and Local 110 have breached and continue in breach of Article 4.02 of the collective agreement.

As remedy, the College seeks to have the complainants (or the Union C.I.A.C. members who claim to speak on their behalf) and Local 110 fulfil the intent of the collective agreement by providing the C.I.A.C. with full particulars of each claim, and by participating appropriately in considering each claim. This remedy is to be applied from this time forward, and retroactively to each of the claims dealt with this Fall where full particulars were not provided.

There is no evidence before the Board that the College's December 15, 1983 grievance was publicly posted, as alleged by the Union in this application.

16. The Board's function in applications for consent to prosecute was described as follows in Fleck Manufacturing Company, [1978] OLRB Rep. July 615:

17. On an application for consent to prosecute the function of the Board is to determine whether the evidence discloses a prima facie case against the respondents, raising arguable points of law appropriate for consideration by the Provincial Court. In performing this function the Board must be convinced not only that there is some evidence to support the prosecution but also that a prosecution would serve the interests of the bargaining relationship between the parties or generally advance the interests of collective bargaining in the Province.

18. The Board will, therefore, first review the evidence to find whether a prima facie case has been made out against each respondent and will turn lastly to consider, if such a case is established, whether it would serve the interests of industrial relations to grant consent to prosecute. It should be emphasized that in reviewing the evidence the Board does not make any final findings of fact nor does it make any ultimate determination as against any of the respondents. That is the exclusive function of the Court.

Although that case arose under section 101(1) of the Labour Relations Act, similar considerations apply to applications under section 89(6) of the Colleges Collective Bargaining Act. See also Newport Sportswear Limited, [1981] OLRB Rep. July 905; Cameron Packaging Inc., [1979] OLRB Rep. July 614; Arthur G. McKee and Company Canada Limited, [1976] OLRB Rep. Oct. 637; CCH Canadian Limited, [1974] OLRB Rep. June 375; and The Norfolk Hospital Association, [1974] OLRB Rep. Sept. 572.

17. Having carefully considered all the evidence and the submissions of the parties, we have concluded that the evidence does not disclose a prima facie or arguable ca0e against either of the respondents. Although it is possible to conceive of situations in which an employer's use of elected employees (who are not union officials) as a source of information about employee views could contravene section 75(1) of the Act, there is no evidence in the present case that the College, or Dr. Bissett on behalf of the College, has participated in or interfered with the selection, formation or administration of the applicant, or its representation of employees, by restructuring the Academic Committee as described above. That committee does not make any binding decisions, but rather merely makes recommendations to the Vice-President (Academic) concerning matters of general policy and procedure relating to academic processes of the College. Policy and procedures concerning the three areas of particular concern to Mr. Grunwell — evaluation of faculty, faculty conduct, and student complaints about faculty members — are not specified in the collective agreement but rather fall within the scope of the (Article 7) management functions clause in the collective agreement, which provides:

7.01 It is the exclusive function of the Colleges to:

(a) maintain order, discipline and efficiency;

(b) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay-off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent pro­vided in this Agreement;

(c) to manage the College and, without restricting the generality of the foregoing, the right to plan, direct and control operations, facilities, programmes, courses, systems and procedures, direct its personnel, determine complement, organization, methods and the number, location and classification of personnel required from time to time, the number and location of campuses and facilities, services to be performed, the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement.

7.02 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement.

Thus, the College would be at liberty to unilaterally prepare, adopt, and apply policies and procedures in respect of the aforementioned three matters, subject, of course, to the right of a faculty member to grieve any disciplinary action taken against him or her through the application of those policies and procedures. Consultation of the type described above is far from rare in the context of an institution of higher learning such as a university or community col­lege, where concepts of collegiality and professionalism often lead to recommendatory (and decision-making) mechanisms which have few parallels in the industrial context. There is no evidence whatsoever in the present case that the College has used or attempted to use the faculty's new majority voting status on the Academic Committee as a form of leverage at the bargaining table, or in any other manner in its dealings with the applicant or the persons whom it represents. Indeed, the revised terms of reference expressly preclude any such use. Section 3.5 provides:

Participation by Faculty members in the work of the committee and its sub or Ad-hoc committees shall not be construed as imputing any representative status to such faculty members for the purposes of determining the position of the bargaining unit, or any part thereof, on any matter; neither shall the support or non-support of the recommendations of the committee or its sub or Ad-hoc committees by faculty members be cited for the purpose of determining the position of the bargaining unit, or any part thereof, on any matter.

Thus, there is no evidence of any attempt to make an "end run" around the applicant, as alleged by Mr.Grunwell in his aforementioned memo dated October 12, 1983, nor of any other contravention of section 75(1) by the College in restructuring the Academic Committee. Indeed, the College has offered to renew an expired "local agreement" with Local 110, under which the College expressly agreed that its existing policy and procedure for evaluation of academic employees would not be amended without prior consultation with the College Committee, which is a local committee appointed by the Union (pursuant to the provisions of the collective agreement) to meet with a committee appointed by the College to discuss various matters of mutual concern, such as local application of the collective agreement, and the clarification of procedures or conditions causing misunderstandings or grievances. (Mr. Grunwell has declined (on behalf of Local 110) to accept that offer because he is of the view that consultation "sounds nice" but is worthless.)

18. The applicant also alleges that Dr. Bissett's memo of November 2, 1983 and the College's December 13, 1983 grievance provide a legitimate basis for granting consent to prosecute. However, having regard to all of the circumstances, we are satisfied that the views expressed in those documents fall within the respondents' freedom of expression, guaranteed by section 75(1) of the Act. (With respect to the matter of employer freedom of speech in the context of labour relations legislation similar to section 75(1) see, generally, American Can Canada Inc., [1983] OLRB Rep. Oct. 1609, and the authorities referred to in that decision). Through his memo of November 2nd, Dr. Bissett attempted to dissuade Mr. Grunwell from threatening faculty members on the Committee with an unspecified "peril", and sought information concerning the nature of that "peril", but did not use "coercion, intimidation, threats, promises or undue influence" within the meaning of section 75(1), or otherwise interfere with the administration of the applicant or its representation of employees. We accept Dr. Bissett's evidence that he perceived Mr. Grunwell to be threatening faculty members on the Committee with an unspecified "peril", and believed that Mr. Grunwell thereby infringed upon the rights of the Administration, as well as the rights of the faculty members concerned. Under the circumstances, it cannot accurately be said that the situation involved solely internal union matters that were of legitimate concern only to the applicant.

19. We are also satisfied that the filing of the aforementioned College grievances does not raise a prima facie or arguable case in respect of section 75(1). The filing of bona fide grievances concerning the interpretation, application or alleged contravention of the collective agreement is clearly within the College's rights under Article 11. 11 of that document. Moreover, provision for final and binding settlement by arbitration of all differences between an employer and the employee organization arising from the interpretation, application, or alleged contravention of the collective agreement is made mandatory by section 46(1) of the Act. If a collective agreement does not so provide, it is deemed to include the arbitration clause set forth in section 46(2) of the Act, which permits either party to refer such differences to arbitration. The applicant suggests that the College violated section 75(1) of the Act by requesting the remedies specified in those grievances. However, we find no merit in that submission. The appropriateness (and legality) of the requested remedies is a matter to be resolved through the grievance and arbitration procedure under the collective agreement, and is not a matter which the Board is prepared to consent to have resolved in quasi-criminal proceedings under section 89 of the Act. While as a matter of labour relations policy the posting of an employer grievance on a bulletin board for the information of bargaining unit members may be an imprudent course of action for an employer to adopt, it does not constitute a prima facie or arguable contravention of section 75(1) of the Act in the present circumstances, in view of the extent to which the matters covered by the grievance in question had already been communicated to various faculty members through copies of Mr. Grunwell's and Dr. Bissett's memos, and in view of the fact that the issues in dispute transcended the interests of the applicant and the respondents and raised matters of concern to the faculty at large (and to the students whose participation in Academic Committee deliberations might also be affected by the ultimate resolution of the matters in dispute).

20. Since we have concluded that the applicant has failed to show a prima facie or arguable case against either of the respondents, it is unnecessary to express any view concerning whether this would have been an appropriate case in which to exercise our discretion under section 89(6) of the Act to consent to the institution of a prosecution of the respondents if a prima facie or arguable case had been established. It is also unnecessary to determine the correctness of the applicant's contention that this Board has no jurisdiction under section 77 of the Act to inquire into alleged contraventtons of section 75(1). We also find it unnecessary to consider the respondents' submission that the matters encompassed by this application could more effectively be dealt with by arbitration under the provisions of the collective agreement, than by proceedings under section 89 of the Act.

21. For the foregoing reasons this application is hereby dismissed.

DECISION OF BOARD MEMBER L. C. COLLINS;

I am of the view that this matter raises an arguable case of a contravention of section 75(1) of the Colleges Collective Bargaining Act and I would grant consent to institute a prosecution against the respondents.