Article 29: Grievance and Arbitration

29.01

(a) The Parties agree to use every reasonable effort to encourage informal, amicable, and prompt settlement of grievances arising from the administration of this Collective Agreement.

(b) The Parties recognize that harmonious relations within a Department or similar unit enhance and promote good academic administration and self-governance within the University. Consistent with the provisions of this Collective Agreement, including those respecting fairness and natural justice as well as the rights of the Board pursuant to Article 28, the Parties recognize that where there are procedures, duly adopted by the Department and which are reasonable and known and approved by the Faculty, for resolving disagreements between Members, such procedures shall be applied to resolve such disagreements, subject to the rights of Members to seek further redress through the Dean or the Association and subject, in the alternative, to the right of any Member to seek redress under the terms of this Collective Agreement or other established procedures of the University.

29.02 In this Article 29, references to the President and the President of the Association may, in each case, include persons designated to act on behalf of the President or the President of the Association, and such designation shall be in writing. References to a grievance committee are to the four members of the University Grievance Committee who will hear a grievance as determined by the procedures in Clause 29.12.

29.03 Grievances and arbitration shall be limited by this Article 29 and any limitations contained in any other article of this Collective Agreement.

29.04 The Parties agree that the following matters cannot give rise to any dispute or difference, and therefore no grievance or arbitration shall arise from them:

(a) Article 1;

(b) Article 2;

(c) Article 5;

(d) Article 15, the decision of a University Tenure Committee insofar as the decision of a University Tenure Committee is accepted by the Board;

(e) Article 16, the decision of the University Promotion Appeal Committee insofar as that decision has been reached in a way that is consistent with the procedures in the Collective Agreement;

(f) Clause 28.15, insofar as the decision of the President is not more severe than that recommended by a University Hearing Committee.

29.05 A grievor shall include:

(a) an individual Member or a group of Members, with the formal support of the Association, against the Board; or, in the cases of Clause 29.06 (Informal Procedure), Article 3, Article 4 or Article 28 (Dismissal), without the formal support of the Association, against the Board;

(b) the Association on behalf of an individual Member or group of Members, or on its own behalf, against the Board;

(c) the Board against the Association, an individual Member, or a group of Members;

and these may be the parties to any grievance. Nothing in this Article 29 shall be deemed to preclude the Association from initiating a grievance which is also capable of constituting an individual grievance or a group grievance or vice-versa.

Informal Procedure.

29.06

(a) Before a formal grievance is filed by any party, an attempt will be made to settle the matter by informal discussion between or among the appropriate persons or representatives of the parties which shall occur within and not later than fifteen days of notice of the act or omission giving rise to the dispute. In the case of a grievance initiated by an individual Member or group of Members, written notice of the substance of the grievance shall be given to the Association, and the matter shall first be raised with the Chairperson, Head, Director or Chief Librarian concerned who shall seek to resolve the matter.

In the case of a grievance initiated by the Association, the matter may first be raised with the Chairperson, Head, Director or Chief Librarian; or, as is appropriate, and with written notice to the Board, the matter may first be raised with the Dean, Vice-President, or President, who shall seek to resolve the matter.

(b) Subject to the requirements of confidentiality in release of documents to Members in Clause 18.11, grievors may request existing documents which bear upon their grievances. Such documents shall be provided promptly, and shall not be unreasonably denied, but may not include materials produced specifically for the purpose of case preparation.

(c) If the dispute cannot be resolved in this way, the Chairperson, Head, Director or Chief Librarian shall advise the Dean or Vice-President concerned. In the case of a grievance initiated by an individual Member or group of Members, a representative of the Association shall be present at any discussion of the matter with the Dean or Vice-President. If the dispute is resolved by this procedure, the agreed resolution shall be reduced to writing by the Dean, Vice-President or President within and not later than five days of his, her or their acceptance of the resolution. Whether or not the matter is resolved, the decision of the Dean, Vice-President or President shall be conveyed in writing to the complainant within and not later than fifteen days of the date the matter was first raised as provided above. A copy of such decision shall be sent to the Association and the Board.

Such informal discussions shall not in any way prejudice any dispute resolution procedures set out in this Collective Agreement and such discussions shall be without prejudice.

Formal Procedure.

29.07 If the informal procedures of Clause 29.06 do not resolve the matter within fifteen days of the date the matter was first raised, the Association, acting on its own behalf or on behalf of a Member or group of Members, may initiate formal grievance procedures as provided in Clause 29.08. In cases involving allegations of violation by the Board ofArticle 3 (Academic Freedom) or Article 4 (No Discrimination), if the Association decides not to initiate formal grievance procedures, an individual Member or group of Members shall have the right to initiate formal grievance procedures after advising the Association, and shall have the right to whatever services C.A.U.T. is willing to provide.

29.08 Formal grievance procedures shall be initiated against the Board by the grievor (as provided in Clause 29.07) presenting a written grievance to the President within fifteen (15) days of receipt of the decision of the Dean, Vice-President or President that the grievance remains unresolved as provided for in Clause 29.06. The grievor shall use the grievance form attached as Appendix I to this Collective Agreement. The grievance form shall be sent by registered mail or it shall be delivered to the office of the President by hand, and that Office shall provide a receipt. If a grievor is a Member or group of Members, acting under Article 3, Article 4 or Article 28 (Dismissal), the grievor shall send a copy of the written grievance to the Association.

29.09 Formal grievance procedures shall be initiated against the Association, an individual Member, or a group of Members by the Board presenting a written grievance to the Association, the Member, or group of Members within fifteen (15) days of the conclusion of the informal procedure contained in Clause 29.06, using the grievance form attached as Appendix I to this Collective Agreement. Where the respondent to such grievance is other than the Association on its own behalf, the Association shall be sent a copy of the grievance.

29.10

(a) Within ten (10) days of receipt of the grievance form, the President shall convene a meeting with the President of the Association and any individuals directly involved, for the purpose of resolving the grievance. At the meeting there shall be a full discussion of all of the particulars of each party’s position and a full exchange of all information and documentation related to the grievance under consideration. In the case of a grievance against the Board, the President shall respond in writing to the grievor within ten (10) days of the meeting and any adjournments thereof indicating a decision in relation to the grievance alleged and the reasons therefor. Such reasons shall be set out in sufficient particularity to allow the grievor to respond. In the case of a grievance by the Board, the appropriate respondent shall respond in writing to the President within ten (10) days of the meeting and any adjournments thereof indicating a decision in relation to the grievance alleged and the reasons therefor. Such reasons shall be set out in sufficient particularity to allow the grievor to respond. A copy of the response shall be sent to the Association and to the Member or Members concerned.

(b) If the grievance is resolved at this meeting, the agreed resolution shall be reduced to writing by the President and countersigned by the President of the Association, within and not later than twenty-five days from the formal submission of the grievance as specified in Clauses 29.08 or 29.09.

(d) If the grievance is not resolved at this meeting, the parties may agree on further procedures to aid in the resolution of the grievance. These may include the following:

(i) referral of the issues under contention to the University Grievance Committee established for this purpose in Clause 29.12;

(ii) referral of some or all of the issues in dispute to a mutually agreed mediator, with a deadline for the resolution of the grievance mutually agreed upon;

(iii) further meetings of the President and the President of the Association and individuals directly involved, with a deadline for the resolution of the grievance mutually agreed upon;

(iv) further meetings of the President and the President of the Association with the written consent of the individual Member or Members directly involved, with a deadline for the resolution of the grievance mutually agreed upon;

(v) referral of some or all of the issues in dispute to an appropriate University Committee.

University Grievance Committee

29.11 The Parties agree that the sole mandate of a grievance committee is to deal with the dispute presented to it as regards the provisions of the Collective Agreement, and its report shall state whether the grievance was upheld, denied, or remained unresolved, and why.

29.12 The University Grievance Committee shall continue and shall consist of four persons appointed by the Board and four persons appointed by the Association. All members of the committee shall hold an academic, academic/administrative, or a professional librarian position at the University. After their appointment, members of the committee are not “representing” a party, but shall use their independent judgment in attempting to resolve cases.

Each grievance will be heard by four members of the committee, two from among those appointed by the Board, and two from among those appointed by the Association. The four members appointed by a Party shall determine which two will hear a grievance. The four members of a grievance committee hearing a grievance shall render the decisions referred to in Clauses 29.15, 29.16 and 29.21.

29.13 An appointee of the Board and an appointee of the Association shall be designated as joint chairpersons of the University Grievance Committee and shall alternate in presiding over meetings or grievances as appropriate.

29.14 Subject to Clause 29.17(i), the University Grievance Committee shall serve so long as this Collective Agreement continues to operate. No person shall sit on the committee in relation to any grievance which would involve a conflict of interest because of his or her personal involvement in the matter that gives rise to the grievance. Should a member of the committee resign, be unable to serve his/her full term of office, or be disqualified by conflict of interest, then the Party appointing him/her shall replace him/her temporarily as necessary, or for the remainder of that member’s term by an alternate appointment in the same way as members of the University Grievance Committee in accordance with Clause 29.12.

When a grievance is submitted to the University Grievance Committee, the grievor shall send the following materials simultaneously to the chairpersons of the committee, the Association, the President and the Member or Members directly involved:

(a) a copy of the written grievance as specified in Clause 29.08 or Clause 29.09;

(b) the response received; and

(c) a written statement as to why the disposition of the grievance proposed in the response is unsatisfactory.

29.15 The members of a grievance committee as determined by Clause 29.12, within and not later than five days of receipt of the written grievance, shall meet for preliminary consideration of the grievance. If in its unanimous opinion, the committee decides that the subject matter of the grievance is outside the scope of this Collective Agreement, it shall so inform the grievor and the Parties. The decision of the committee shall be subject to confirmation by the Association-Board Committee within ten days, whereupon that decision shall constitute full resolution of the matter and shall be final and binding settlement in accordance with Section 42 (1) of the Trade Union Act of Nova Scotia, and shall not be subject to further review or consideration by any process. If the Association- Board Committee does not confirm the decision of the committee, the committee shall then hear and decide the matter.

29.16 If the grievance committee is to hear a grievance pursuant to Clause 29.15, it shall notify the parties within one day. The parties shall submit the following materials to the committee within ten days of initial submission by the grievor of a written grievance to the University Grievance Committee:

(a) the name of a person who will represent the party at hearings;

(b) a statement of facts; and

(c) a list of witnesses to be called initially in support of the case.

The committee shall commence a hearing within and not later than thirty days after receipt by it of the written grievance, and shall render its decision within and not later than ten days after the conclusion of the hearing. If the members of the committee unanimously agree that there is good reason to extend any of the time limits, they shall notify the parties in writing, specifying their reasons for, and the number of the days of, the extension. In no case shall the decision of the committee be reported later than sixty (60) days after receipt by the University Grievance Committee of the written grievance, except with the written consent of the grievor.

29.17 The Parties agree that a grievance committee shall proceed according to the rules of natural justice to hear the arguments on both sides of the dispute. The following rules and procedures shall be observed by the committee:

(a) the committee shall meet to consider all grievances presented to it and shall receive all evidence presented by the parties in respect of those grievances. It shall determine its own rules of procedure and evidence, and shall give reasonable opportunity to the parties to the proceedings to present evidence and/or make submissions to it, and shall permit the parties to be present and to represent themselves, or be accompanied by and represented by persons of their choice;

(b) a quorum of the committee shall be four members hearing a grievance as specified in Clause 29.12;

(c) the committee shall give reasonable notice of hearings to the Association, the Board, and any Member or group of Members directly involved. The committee shall not be barred from hearing a grievance because of failure by one of the parties to submit all or a part of the materials listed in Clause 29.16 (a), (b) and (c);

(d) the committee shall conduct any hearing in camera in the presence of the parties or their representatives unless all parties at the hearing agree in writing to an open hearing;

(e) the committee shall have full access to confidential documents. The committee may order the production of relevant documents, and may provide them to the parties subject to the requirements of confidentiality in release of documents to Members in Clause 18.11;

(f) transcripts, if any, of hearings of the committee, and copies of any documents presented to or considered by the committee shall be for the sole use of and remain in the possession of the committee;

(g) the committee shall strive to maintain confidentiality at all times;

(h) the committee shall report its decision and the reasons therefor in writing and shall send copies to the Association, the Board and any Member directly involved or affected by the grievance. If the decision is not unanimous, both majority and minority opinion or opinions shall be stated with the number of votes supporting each.

The report of the committee shall:

(i) list the issues agreed by the parties to have been in dispute,

(ii) summarize the evidence and argument,

(iii) report the vote numerically,

(iv) state whether the grievance is upheld, denied or remains unresolved and why,

(v) if the grievance is upheld, the report shall state the remedy awarded and the reasons for this award;

(i) the membership of the committee in process of hearing a particular grievance shall not change until its decision is rendered except with the written consent of the Association and the Board, and such consent shall not be unreasonably denied.

29.18 A grievance committee shall confine itself to the grievance submitted to it and shall have no authority to determine any other issue or issues not submitted to it.

29.19 A grievance committee shall not have jurisdiction to amend or add to any of the provisions of this Collective Agreement, nor to give any decision inconsistent with the terms of this Collective Agreement.

29.20

(a) A grievance committee shall not be barred from hearing and deciding the substance of a grievance because of a technical violation, irregularity or failure to follow procedures in this Collective Agreement.

(b) When dealing with grievances involving claims of non-compliance with procedures in this Collective Agreement, if the committee finds that the procedures have not been complied with, it shall direct that the matter be considered again by an appropriate body in accordance with the procedures in this Collective Agreement, unless the committee determines that such reconsideration would be inappropriate.

(e) Where by the terms of this Collective Agreement, judgment or discretion is to be exercised by the Board or any person or body, the committee shall not substitute its own judgment for that already made unless it finds such judgment or discretion to have been unreasonable or improper.

29.21 A unanimous decision of a grievance committee shall constitute full resolution of the matter and shall be final and binding in accordance with Section 42 (1) of the Trade Union Act of Nova Scotia and shall not be subject to further review by any process, except in the case of any grievance alleging violation of Article 3 (Academic Freedom) or Article 4 (No Discrimination). In the case of grievances of these two types, whether or not the Association supports the grievance, if the C.A.U.T. advises that the matter, despite the unanimous decision of the committee, is one that should be subject to further consideration by arbitration and if the decision of the committee is not accepted by the Association, the Member or Members concerned, or the Board, the matter may be submitted to arbitration.

Arbitration

29.22 Cases specified in the following may be submitted to arbitration:

(a) any grievance which has not been resolved by means of the procedures set forth in Clauses 29.08, 29.09 or 29.10, may be submitted to arbitration within and not later than fifteen days of:

(i) notice of the decision of a grievance committee;

(ii) the expiry of the deadline for resolution of the grievance agreed to in Clauses 29.10(b) or 29.10(c)(ii), or (iii), or (iv);

(iii) the meeting of Presidents as specified in Clause 29.10 (a) if no steps beyond those listed in Clause 29.10 were agreed;

(b) cases involving alleged violation by the Board of Article 3 (Academic Freedom) or Article 4 (No Discrimination) if a unanimous decision of a grievance committee as provided in Clause 29.21 is not satisfactory to the grievor. In these cases, a Member or group of Members may submit the matter to arbitration and shall have a right to whatever services C.A.U.T. is willing to provide;

(c) cases where a Member is subject to dismissal in accordance with Clause 28.25, regardless of the support of the Association;

(d) cases where decisions of the committee have not been implemented in accordance with Clause 29.21.

29.23 Except for the provisions in Clause 29.22(b) and (c), submission to arbitration shall be initiated by the Association or the Board. All submissions to arbitration shall be within and not later than fifteen days of the receipt of the response or report as specified in Clauses 29.08, 29.09, 29.17(h), or pursuant to the provisions in Clause 29.22(a), and written notice shall be given to the other Party of submission of the matter to arbitration.

29.24 Unless the parties agree to have an Arbitration Board, as provided in Clause 29.25, a Single Arbitrator shall determine the arbitration, and the following shall apply:

(a) the Parties agree that the following persons serve as a panel of Single Arbitrators on a rotating basis so long as this Collective Agreement continues to operate:

(i) Owen Shime;

(ii) R.L. MacDougall;

(iii) Brian Bruce;

(iv) Thomas S. Kuttner

(v) Susan Ashley;

(vi) Gail Brent;

(vii) Bernard L. Adell;

(viii) Pamela Picher;

(ix) S. Bruce Outhouse;

(x) Kenneth Swan;

(xi) Donald Carter;

(xii) Kevin M. Burkett;

(xiii) Anne LaForest;

(xiv) Terry Roane;

(b) the persons specified in (a) above shall serve as Single Arbitrators in rotation according to the order in which they are listed. Prior to the selection of an arbitrator, the Grievor shall advise the other party of the person to be contacted. The responding party shall have five (5) working days to notify the Grievor of their disagreement with the selection, failing which they will be deemed to consent to the selection of the arbitrator named. Copies of all correspondence with a person specified in (a) above shall be sent to the other party (or their counsel). If an arbitrator is not available or agreeable to commence hearings within and not later than thirty days of being notified of his or her requested appointment, the parties (or their counsel) shall consult to determine whether an agreement to waive the thirty (30) day requirement can be achieved. If no agreement to waive the thirty (30) day requirement is achieved, the next person on the list shall be selected, and so on, until one of those on the list is available. For the next arbitration thereafter, the person who appears on the list immediately after the arbitrator last selected shall be next in the sequence of selection. However, by mutual consent in writing, the parties may select a listed arbitrator out of turn or select an arbitrator not on the list;

(c) if none of the persons on the list specified in (a) above can or will act within the required time, and if the parties do not agree on another arbitrator in accordance with (b) above, the parties, within and not later than fifteen days of commencement of the selection process, shall ask the Minister of Labour for the Province of Nova Scotia to appoint such Single Arbitrator, and if that request is not fulfilled within and not later than fifteen days of the date the Minister is requested to act, the Single Arbitrator shall be named in accordance with the Arbitration Act of Nova Scotia.

29.25 In the event the parties agree in writing that an Arbitration Board determine the grievance, the Arbitration Board shall be composed of three persons: a nominee of each of the parties and a chairperson to be chosen jointly by the two nominees. The nominee of the Association may be a Member and the nominee of the Board may be a member of the Board or a member of the University staff not included in the bargaining unit. Such nominees shall not be deemed to be advocates for the parties on the Arbitration Board and neither party shall object to such appointment. At the time of giving notice of submission to arbitration the grievor shall indicate the name of its nominee to the Arbitration Board. A Member or group of Members submitting the matter to arbitration without being supported by the Association pursuant to Clause 29.22 (b) and (c) shall give notice to the Association in addition to the Board and shall select a member of the Arbitration Board in the same way as the Association. Within and not later than seven days of receipt of such notice, the other party shall name its nominee. Within and not later than a further five days the two nominees shall select a chairperson for the Arbitration Board. If they are unable to agree upon a chairperson within such time, the Minister of Labour for the Province of Nova Scotia shall be asked to appoint the chairperson and if that request is not fulfilled within and not later than fifteen days of the date the Minister is requested to act, the chairperson shall be named in accordance with the Arbitration Act of Nova Scotia. If an Arbitration Board is agreed upon, the remaining provisions of this Article 29 pertaining to the Single Arbitrator shall likewise apply to such an Arbitration Board.

29.26 The Single Arbitrator shall commence the arbitration hearing within and not later than thirty days after being appointed.

29.27 Except as provided in Clause 29.04, any difference between the Parties relating to the interpretation, application, alleged violation or administration of this Collective Agreement, including whether a matter is arbitrable, may be submitted to arbitration.

29.28 The Single Arbitrator shall be confined to the grievance submitted for arbitration and shall have no authority to determine any other issue or issues.

29.29 The Single Arbitrator shall be subject to the same limitations as a university grievance committee, as provided in Clause 29.20.

29.30 The Single Arbitrator shall not have jurisdiction to amend or add to any of the provisions of this Collective Agreement, nor to give any decision inconsistent with the terms of this Collective Agreement. The Parties may agree in advance that, notwithstanding any other Clause of this Collective Agreement, where the Arbitrator concludes the decision of the University to deny tenure is wrong, the Arbitrator may substitute a decision on the merits and award tenure.

29.31 Without limiting other provisions of this Article 29, the rules, limitations of authority, and procedures which apply to a grievance committee shall also apply to the Single Arbitrator.

29.32 No person may be appointed as a Single Arbitrator in relation to any grievance which would involve a conflict of interest because of his or her personal involvement in the matter that gives rise to the grievance.

29.33 In any arbitration involving a matter of academic freedom (Article 3), the arbitrator must be selected in order from the following list: Brian Bruce, Thomas Kuttner (see Letter of Understanding in Appendix VIII), Susan Ashley, Bernard L. Adell, Donald Carter, Anne LaForest. However, by mutual consent in writing, the parties may select a listed arbitrator out of turn or select an arbitrator not on this list.

29.34 An individual Member submitting a matter to arbitration pursuant to Clause 29.22(b) or (c) shall have the right to whatever services the Canadian Association of University Teachers is willing to provide. In the event that an individual Member elects to so proceed, the individual shall give written notice to the President of the University and the President of the Association of his or her intention to proceed to arbitration.

29.35 In addition to those instances in which, according to arbitral jurisprudence, there is an established practice with respect to burden of proof, the burden shall be on the Board to establish just cause in all cases involving dismissal for cause.

29.36 Where a Single Arbitrator determines that a Member has been dismissed or otherwise disciplined by the Board for cause, the Single Arbitrator may substitute any other penalty that to the Single Arbitrator seems just and reasonable in all the circumstances.

29.37 Without limiting the operation of other appropriate provisions of this Article 29, the fact that a grievance has been presented as an Association grievance shall not prevent a Single Arbitrator from awarding a remedy to an individual Member directly affected by a proven breach, to the same extent as if the individual Member had presented the grievance as an individual grievance, and had succeeded at arbitration.

29.38 Each party shall bear the costs of its nominee to an Arbitration Board and the costs of the Single Arbitrator, or chairperson of an Arbitration Board, shall be paid in accordance with the provisions of the Trade Union Act of Nova Scotia.

29.39 When a Member proceeds to arbitration without the support of the Association in any case of dismissal in accordance with Clause 29.22(c) or in any case involving Article 3 (Academic Freedom) or Article 4 (No Discrimination) in accordance with Clause 29.22(b), the Member and the Board shall each bear the costs of their nominee and pay the costs of the chairperson or Single Arbitrator in accordance with the Trade Union Act of Nova Scotia.

29.40 In cases involving termination of a Member’s appointment where a violation of Article 3 (Academic Freedom) or Article 4 (No Discrimination) is established, the costs of the arbitration, including the costs of the arbitrators, shall be borne by the Board.

29.41 In the case of an Arbitration Board, a decision of the majority shall be the decision of the Arbitration Board, and where there is no majority decision, the decision of the chairperson shall be the decision of the Arbitration Board. The decision of the Arbitration Board or Single Arbitrator shall be final and binding on all parties.

Process Provisions and Precedent

29.42 The time limits as established by this Article 29 may be extended by mutual agreement, in writing, between the Association and the Board in any particular case. The Single Arbitrator or the Arbitration Board shall have the power to relieve against non- compliance with time limits.

29.43 Failure by the respondent or respondents to a grievance to respond within the time limit allows the grievor to proceed to the next stage of the grievance or arbitration procedures.

29.44 If the grievor fails to proceed with the grievance, either initially, or during the processing thereof through the grievance and arbitration procedures in this Article 29, the grievance shall be conclusively deemed to have been finally resolved.

29.45 Any grievance resolved at any stage of the procedures outlined in this Article 29 other than a unanimous decision by a grievance committee or a decision by an Arbitration Board or a Single Arbitrator shall not constitute a precedent in any arbitration proceeding unless agreed to in writing by the Board and the Association.

29.46 The Board recognizes the right of the Association to appoint up to twenty (20) Members as grievance officers. The Association will notify the Board in writing of the name of any officer so appointed, and a copy of such notification shall be sent to the Chairperson, Head, Director or Chief Librarian concerned.

29.47 Grievance officers shall be entitled to relief from their normal duties for the purpose of investigating and processing grievances, except in the case of scheduled teaching duties for which relief may be arranged for the purpose of attendance at grievance and arbitration hearings. Should participation in such activities conflict with the duties and responsibilities of the Member then mutually satisfactory arrangements shall be made in advance within the Department.