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HomeMy WebLinkAboutUnion 13-02-21 IN THE MATTER OF AN ARBITRATION BETWEEN ALGONQUIN COLLEGE (the “Employer”) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 415 (the “Union”) RE: ARTICLE 2 – STAFFING (GRIEVANCE NOS. 09A136, 10A64, 11A21) SOLE ARBITRATOR: NORM JESIN APPEARING FOR THE EMPLOYER: JOCK CLIME – COUNSEL APPEARING FOR THE UNION: SUSAN BALLANTYNE – COUNSEL Hearings were held on Ottawa, Ontario on October 5, 2011; December 15, 2011; February 29, April 5, 10 and 25, August 30, November 12 and 13, 2012. AWARD: The Union in this case alleges that the Employer has violated article 2 of the collective agreement between the parties by failing to give preference to full time appointments over partial load and sessional employees. This decision deals with that part of the case pertaining to English taught in the School of Business, including those English courses which were transferred from the School of Business in 2011 to the School of Hospitality. It is essentially the Union’s position that over a period of five semesters commencing in the fall of 2009 there were sufficient hours taught by a combination of partial load employees, sessional employees and part time employees that would have justified the hiring of two additional full time teachers in order to comply with the requirements of article 2. While the Employer does not dispute the number of hours taught by these non-full time teachers, the Employer’s position is that most of these hours cannot be considered because the non-full time employees were being used to accommodate disabled employees who might return, to accommodate employees working summer semesters who would could return to a regular fall and winter rotation or for other legitimate operational reasons which will be explained below. Therefore it is the Employer’s position that it did not violate Article 2 of the collective agreement. The relevant portions of Article 2 are set out below: 2.02 The College will give preference to the designation of full-time positions as regular rather than partial-load positions as defined by Article 26, Partial-Load Employees, subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. 2.03 A The College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to the employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. Article 26.01 B defines a partial load employee “as a teacher who teaches more than six and up to 12 hours per week on a regular basis.” A full time teacher is a teacher who teaches more than 12 hours per week and generally will teach 15 hours per week. Article 1.01 of the collective agreement defines sessional teachers as non-full time teachers hired to teach on a sessional basis for less than twelve months duration in any 12 month period. It should be noted that sessional teachers are excluded from the bargaining unit. Although the grievance itself alleged a violation of Article 2.02 the parties presented evidence on the number of hours taught by both sessional and partial load teachers. In addition I was presented with evidence of hours taught by part time teachers. Part time teachers are defined in Article 1.01 as teachers who teach six hours per week or less. They are also excluded from the bargaining unit. At first, the question of the relevance of part time teaching hours generated some controversy as nothing in Article 2 gives express preference to full time employees over part time employees. Indeed, the consideration of part time hours in article 2 cases has been the subject of a number of awards, though there is no clear guideline in the cases presented indicating how part-time hours should be considered, if at all. In the end, the parties took a common approach as to how I should treat part time hours in this decision. That approach will be explained in more detail below. Although the hearings in this matter took place over a number of days, much of the time was spent in a type of discovery in which the parties were attempting to determine the number of hours taught by various categories of non-full time employees over a period of time and the reasons that those non-full time employees were used. In the end there was little dispute over the actual number of hours taught and who taught them. Rather, the dispute centred around the reasons for employing those non-full time teachers and whether those reasons could be justified as establishing an “operational requirement” for the utilization of non-full time personnel under article 2. I begin with the records kept and submitted by the Employer. The Employer maintains computerized records of hours taught in each course in each semester by each employee. As an example, the Employer has provided records establishing that in the fall semester of 2009 (the September – December semester), there were 111 teaching hours in which English in the School of Business taught by non-full time teachers. Those hours were further broken down establishing that 45 hours were taught by part time employees, 36 by partial load employees and 30 by sessional teachers. However, not all of those hours can be considered under article 2. Rather before I can determine that those hours should have been converted to full time hours I must examine the reasons that the hours were assigned to non-full time hours. For example, if 15 hours were assigned to non-full time employees to accommodate a teacher on parental leave, or on some other temporary leave, then the Employer would not be expected to hire a full time teacher to teach those hours, only to have to lay that teacher off when the teacher on leave returns. Similarly, if there is some other legitimate reason to establish that the need for non-full time teachers is finite and temporary, again, the Employer would not be expected or required to convert those non-full time hours to full time hours. Where the Employer asserts that non-full time hours are used to accommodate a full time employee on temporary leave or absence from teaching, those hours are said to be “released” from the total of non-full time hours under consideration in an article 2 case.. Thus in the fall of 2009, the Employer asserts that of the 111 hours performed by non-full time teachers, 84 should be released. The reasons for the releases in 2009 vary. Some hours were released to accommodate an employee while in a Union position. Other hours were released to accommodate an employee on leave of absence. In this case the Union does not accept that all 84 hours claimed by the Employer were legitimately released. Rather, the Union asserts that the Employer should only have been able to release 45 of the 111 hours performed by non-full time employees. In particular it challenges the release of 30 hours for two employees who were working off cycle. Those two employees (who I will refer to as M and S) were full time employees who requested that they teach in the summer and instead take the fall semester off. That request was accommodated by the Employer. The Employer asserts that that request could not be accommodated permanently, so that even though the request was being accommodated indefinitely as of the fall of 2009, the hours had to be released as the Employer did not want to be in the position of having to lay off a full time employee if and when M and S returned to teaching in the fall and winter. In addition, in 2009 the Union challenged the release of 9 hours that were being used to accommodate two full time employees who could not teach a full load because of a disability. I will refer to those employees as G and SK. It is the Union’s position that those employees’ disabilities were designated as permanent and therefore the hours necessary to accommodate them should not have been released and could be used in the calculation of hours needed to determine whether to hire additional full time teaching staff. The Employer asserts that in reality the number of hours needed to accommodate these employees varied both upward and downward over the five semesters commencing in the fall of 2009. Therefore, they could not consider the accommodation as permanent and therefore the Employer continued to release the hours – although the number of hours released did vary somewhat, as will be seen below. These disputes over release hours for M, S, G and SK persist throughout the five semesters under consideration. Thus in the winter of 2010, there were 129 non-full time hours taught of which 39 were taught by part-time employees. The Employer claimed 81 release hours and the Union conceded only 60 release hours. In the fall of 2010 there were 105 non full time hours including 36 part time hours. The Employer claims 84 release hours and the Union only accepts 63 release hours. In the winter of 2011 there were 96 non-full time hours including 30 part-time hours. The Employer claims 48 release hours and the Union accepts only 36 release hours. Finally, in the fall of 2011 there were 84 non-full time hours including 27 part time hours. The Employer claimed 84 release hours and the Union only conceded 42 release hours. It should be noted that although the Union asserts that there were sufficient available non-full time hours to justify the establishment of two additional full time positions throughout the five semesters under consideration, the number of hours available did clearly diminish through those five semesters, as will be seen below. One reason for that may have been declining enrolment, which the Employer asserted was anticipated. Another reason had to do with an operational change. The Employer operates a School of Hospitality. Students in that school took their English course in the School of Business until the fall of 2011. At that time the Employer decided to teach English separately in both the School of Business and the School of Hospitality. Its stated reason was that the English course should be tailored differently for Hospitality students. According to Union counsel, the hours presented and the dispute over what hours could be released essentially raised the following issues: 1. How should the hours performed by part time employees be considered in the determination of whether there has been a violation of Article 2? 2. How many hours are available for consideration – after discounting legitimate release hours, to determine whether and how many additional full time positions the Employer should be required to establish. The Union asserts that the evidence supports a conclusion that the Employer should have been required to establish two additional full time positions. 3. How many semesters should be considered in determining whether Article 2 has been violated and whether additional full time positions should be established? The Union asserts that although its position may be supported by evidence from the five semesters from the fall of 2009 up to and including the fall of 2011, we should only have to look at two semesters – the fall of 2009 and the winter of 2010. The Employer’s position is that I consider the evidence presented from all five semesters. 4. Should the Employer be allowed to rely on its anticipation early in 2009 and 2010 that future enrollment would be reduced and that the need for non-full time hours would be diminished and that therefore there was no operational need for additional full time employees, even in 2009 and 2010. 5. Was the Employer justified in purporting to release hours for M, S, G and SK? 6. Should I be able to consider the hours for English taught in the School of Hospitality after some of the English courses were split off and transferred into the School of Hospitality? An additional issue was raised by the Employer in respect of an employee I will refer to as CG. According to the Employer, a decision was made to move CG, a full time teacher, from an unrelated program to business English. That decision was to be implemented in 2012 (and has been so implemented). The Employer asserts that she was transitioned into Business English because of a reduction of work in her previous program. Had she not have been moved she may have been laid off. Employer counsel submitted that whatever necessity there may have been for an additional full-time assignment in Business English was avoided by bringing in CG to teach Business English on a full time basis in 2012. The Union does not accept this position and asserts that if CG was transitioned in an attempt to avoid a layoff, that could only have been done in consultation with the Union under the layoff provisions of the collective agreement. I will deal first with the issue relating to the consideration of part time hours because the parties took a common approach to that issue. I will then consider the issue dealing with the length of time to be considered in making my determination. I will than deal with the consideration of issue #5 – that is the legitimacy of release hours for M, S, G and SK, because a determination of that issue is necessary to determine the Union’s claim and will go a long way in determining some of the other issues raised. I will then determine the remaining issues as required. Before I begin with the issues raised by the Union, I will first deal with some general considerations arising from the application of with Article 2. More particularly I would note that the preference that Article provides to full time positions in both Article 2.02 and 2.03A are both expressly made “subject to operational requirements.” That phrase places a limitation on the preference that is to be provided to full time positions. In Algonquin College, unreported, January 3, 2012 (Knopf), the arbitrator determined at p. 15 that that limitation means that once the Union determines that there are enough partial load and sessional hours that could be assembled into a full time position, “the onus shifts to the College to put forward operational requirements for not assigning hours to people holding full time positions.” At p. 16 the arbitrator then quotes from a prior Algonquin College decision dated March 24, 2008 and decided by K. G. O’Neill. In that case arbitrator O’Neill wrote that the question as to whether operational requirements override the preference to be given to full time positions “is essentially a question of fact, although considerable deference is afforded to the assessment of management in this regard.” Arbitrator O’Neill went on to state that: … the term operational requirements connotes something necessary to the operation, for instance something without which the College cannot obtain its program objectives or market accessibility. … The wording implies more than individual preferences or considerations of a less necessary nature … [The] exception or operational requirements ought not to be given a definition that is so expansive that the interpretation risks virtually elimination of the negotiated general rule that preference is to be given for full-time positions After quoting from the above decision, arbitrator Knopf then made reference to a subsequent decision by O’Neill between the same parties dated June 8, 2007. At p. 19, Knopf noted O’Neill’s conclusion that “where two programs focus on different vocational objectives, it is legitimate for a College to try to maintain program quality by confining hiring within program areas.” Knopf went on to state note that “the case law cited by the parties demonstrates that deference is accorded to academic and operational considerations that have not been shown to be unreasonable or without bona fide foundation.” With these general comments in mind I now turn to a consideration of the issues as outlined above. Issue 1 - Part Time Hours As indicated, there is no express language in Article 2 indicating that full time positions are to be given preference to part-time positions. Indeed, there is no mention of any consideration of part-time positions in Article 2 at all. Still, as the Union has pointed out, arbitrators have not entirely removed the ability of the Union to seek protection of full time positions from encroachment by part-time positions. For example, in George Brown College, unreported, January 16, 2003 (Devlin, Gallivan, Murray) the arbitration baord issued a preliminary award ordering the Employer to produce documentation regarding part-time hours in an Article 2 case. The board, at pp. 6 and 7, unanimously concluded that the consideration of hours taught by part-time teachers was arguably relevant to a grievance alleging a violation of Article 2 and that it would not be appropriate to refuse to consider those hours before all the evidence was presented. In George Brown, unreported, December 17, 2004, (Knopf, Gallican, Murray), the board was faced with a grievance alleging a violation of Article 7.02 (vi). That provision requires the Employer at the request of the Union to “explain its rationale for the application of Article 2 …”. The provision goes on to state: “In particular, [the Employer] will consider any representations which the Union Local may make with respect to the assigning of work on a full-time, or a sessional, partial-load or part time basis, and with respect to the feasibility of assigning work on a full-time basis rather than on a sessional, partial-load or part-time basis.” At pp. 38 and 39 a majority of the board determined that at the request of the Union the Employer was required, under this provision, to produce documentation to the Union pertaining to the courses and hours being taught by part-time employees. At p. 39 the majority reasoned that “Since this information is germane to Article 2 and 27.05(ii) inquiries, it is also germane to discussion about “the feasibility” of assigning the work to full-time staff or otherwise.” In Fanshawe College, unreported, February 23, 2010, (P. Picher, Zabek, Murray) the arbitration board had to consider the issue before me – namely how to treat part-time hours in an Article 2 case. In a preliminary award issued in the same case and referred at pp 17-20, the Board concluded after considering the scheme of the collective agreement that full time positions were under some protection from encroachment by part time teaching hours. A majority of the board concluded that part-time hours could be relied on by the Union to establish a prima facie case, subject to operational requirements, that the assignment of part time hours had the effect of eroding the staffing scheme or the bargaining unit as set out in the collective agreement. This approach was adopted in Algonqiuin College, unreported, June 8, 2007 (O’Neill). In argument before me, Union counsel, while acknowledging that Article 2 does not expressly provide protection against part-time hours, submitted that the cases do demonstrate that some protection against the use of part time teachers, does exist under the scheme of this collective agreement. She proposed that part-time hours be considered under a defined formula as follows: first determine the percentage of non-full time hours in any given semester by part-time staff. After deducting the release hours a number of hours will remain. Thus in the fall of 2009, in which there were 111 non-full time hours, the Employer assert there were 84 release hours and the Union asserts there were only 45. After deducting those hours either 27 hours or 66 hours remain. Recalling that of the 111 hours, 45 hours were taught by part time staff. If those hours were to be given no consideration all 45 would have to be deducted from the remaining hours determine if there were sufficient hours left over to require the Employer to establish full time positions. The Union asserts that only some of the part time hours should be deducted, in accordance with the percentage of total non-full time hours. Thus in 2009, 68% of the non-full time hours were performed by partial load and sessional teachers. Thus, after deducting the release hours, only 68% of the remaining hours should be counted. On the Union’s theory of the case the 66 remaining hours would be reduced to 45 as 21 part time hours would further be deducted. In his argument, Employer counsel, without conceding that this was the correct way to treat part time hours under Article 2, agreed that the Union’s proposed formula could be used in this case. Thus on his theory of the case the remaining hours to be considered in the fall of 2009 would be 68% of 27, or 18 hours. Utilizing this formula the amount of remaining hours to be considered according to each party and subject to the other remaining issues are as follows: The Union asserts that there are 49 hours available for consideration in the winter of 2010, 43 hours in the fall of 2010, 40 hours in the winter of 2011 and 30 hours in the fall of 2011. Thus, according to the Union, there are consistently sufficient non-full time hours available over the five semesters under review to justify the establishment of two full time positions – even absent a considerations of hours assigned to English in the School of Hospitality. On the other hand the Employer, under its theory asserts that there are 34 hours available in the winter of 2010, but only 13 in the fall of 2010, 32 hours in the winter of 2011 and no hours available in the fall of 2011. The remaining numbers are reduced in the fall because M and S teach in the summer and the winter, but not in the fall. That means, according to the Employer, that 30 hours are released each fall – but not in the winter – to account for the possibility that either or both of M and S might return to on cycle teaching in both fall and winter. The Employer asserts that the available hours may be reduced even further by removing hours taught for hospitality English as the Employer asserts that it should not be required to hire full time employees to teach courses in different programs. In any event, according to the Employer, based on its position on the release hours, there is not consistently enough available full time hours remaining to justify the establishment of any full time positions. Issue 3: The Period of Time to be Considered This issue includes the ancillary question of how long full time positions may be back- filled by non-full time personnel, before the Employer may be required to assign a full time employee to the position. This question was considered in Algonquin College, unreported, November 13, 2002 (M. Mitchnick). At page 9 of his award, the arbitrator noted that there was no set rule in the collective agreement on this point. He referred to a decision of arbitrator McLaren in Fanshawe College, unreported, March 2, 1995, in which he accepted a two year time frame for considering hours in an Article 2 case. He also referred to a decision of Professor Carter in St. Lawrence College, unreported, June 13, 1997. In that case Professor Carter the Employer back filled a full time position with partial load teachers to accommodate an employee who was on an indefinite leave to join the union negotiating team. Professor Carter wrote at p. 3 of his decision: It is well understood that all leaves of absence are premised on the assumption that the persons going on leave will be able to return to their former job or its equivalent if they wish to reclaim the job and are still able to perform it. The fact that a leave is of indefinite duration does not alter that assumption in any way. Professor Carter went on to find that the Employer in that case was entitled to utilize partial load employees to back-fill the position until the expiry of the leave of the full time employee. Arbitrator Mitchnick considered both the McLaren and Carter decision in his award in Algonquin College. He concluded at p. 11 that in each case the determination of how long an Employer may backfill a position with non-full time employees is a question of fact and good faith. I agree with Arbitrator Mitchnick that the duration of time to be considered in any article 2 case depends on the facts in each case. For example, where hours are released to accommodate a full time employee absent because of a disability, and where a return to duties can reasonably be expected in a known and predictable time period, the Employer will be obliged to hold the position open for that employee until his/her return. In such a case, the Employer would be entitled to back-fill that position with non-full time employees until that time. However, if their disability was of an indefinite or permanent nature such the employee would not reasonably be expected to return to his/her former status within any predictable time period, then the Employer should no longer be able to release hours back-filled by non-full time employees in that position. To put it another way, where the parties can reasonably predict the full time employee’s return to the position, the Employer could be expected to back fill the position until the full time employee returns. Where the return of such employee cannot be predicted within a reasonable time it becomes more difficult for the employer to maintain the operational necessity of using non-full time employees in the position. In addition, it goes without saying that the longer partial loaders are used to fill a position on an indefinite basis, the more difficult it becomes to reasonably predict the return of a full time employee to the position. At some point, Article 2 will require that a full time employee be hired to teach those hours. That point, will depend on the circumstances of each case including, the length of time that the particular hours have been assigned to non-full time teachers together with the predictable likelihood that a full time employee will return to the position. Finally, I would add that in any case they may be peculiar facts or circumstances that would impact on how much time should be considered in assessing the total number of hours are available in an Article 2 case. I would add however, that it would be reasonable, and consistent with the jurisprudence, to require the Employer to establish some special justification for assigning a full time work load to non-full time employees for any longer than a two year period. These are the general principles that I will apply to the remaining issues in dispute in this case. Issue 5a - Release Hours for M and S It is the Union’s position that no hours should be released for M and S in the fall of 2009, 2010 or 2011. First, counsel notes that in each year from 2009 through 2011, M and S each taught in the winter and the summer. Thus by the time the fall had arrived they had taught a full year’s load and could not be expected to return on-cycle until the following year at the earliest. Thus no hours should be released in the fall when they had already taught a full load in that year. In addition, counsel submitted that it is up to the Employer to decide whether M and S could work off-cyle and the Employer could indeed require them to work on-cycle. Furthermore, the Employer was entitled under the collective agreement to require all teachers to rotate on and off cycle, and the Employer’s unwillingness to assign such a rotation should not be an impediment to require the Employer to establish additional full-time positions under Article 2. The Employer asserts that the issue of M and S is a red herring as no hours were released for them in any winter. Thus a case could not be made for the assignment of full time positions for their hours over the course of a fall and winter in the same teaching year. The Employer pointed to Article 11.03 of the collective agreement which provides that an employee may only be scheduled in July and August on consent or on a rotational basis. Counsel submitted therefore that the Employer could not require any teacher to work off-cyle on an ongoing basis although he did concede that it could require teachers to rotate on and off cycle with other teachers. That means that if either M, or S, at any time withdrew their consent to work in the summer, they Employer would have to bring them back to work a regular cycle in the fall and winter. The hours presently performed in the fall while they are off therefore have to be released in case they decide to come back “on cycle”. Indeed, during the hearings I was informed that S had indeed requested to return to a regular on cycle assignment and was to be assigned back on cycle beginning in the fall of 2012. In addition, the Employer had presented evidence that two other employees who had been teaching off cycle had later requested a return to an on cycle assignment. Counsel conceded that it could choose to require all teachers to rotate off-cycle if either M or S chose to withdraw their consent to work summers. Thus counsel for the Union submits that a full time employee (or two) could be hired to replace M and S and if either returned on- cycle any necessity to lay off the newly hired full time teacher could be avoided by requiring all the teachers to rotate off-cyle in accordance with Article 11.3. Employer counsel responded by submitting that it is not required to rotate teachers off-cycle against their wishes. Employer counsel maintained that it is easier and within its rights to accommodate the wishes of its employees if it can by allowing those who wish to work in the summers to do so. However, the Employer must ensure that if an employee withdraws consent to work in the summer that it can accommodate that employee’s return to a regular on-cycle schedule. It is entitled under the collective agreement to grant the wishes of its employees to teach “on-cycle” and to utilize non-full time employees to teach in summer. Similarly, where employees wish to work off cycle, it is entitled to grant accommodate their wishes and to hire non-full time employees to replace them in the “off semester” in contemplation of the possibility that full time employee working off cycle will return on-cycle. On this point I am inclined to agree with the position put forward by the Employer. Nothing in Article 11.3 suggests that the Employer is required to assign employees off-cycle on a rotational basis in order to avoid assigning summer hours to non-full time employees. Therefore, if employees do not wish to work in the summer, the Employer would have the option of hiring non-full time employees in the summer to teach the available hours. Conversely, if a full time teacher does wish to work off-cycle that means the hours that teacher might work in the fall or winter would have to be otherwise filled. I see no reason why the Employer cannot utilize a non-full time teacher to fill those hours, and thereby preserve its ability to accommodate the full time teacher’s return on-cycle without laying off a full time employee, (or without initiating a search for alternatives to layoff within the terms of the collective agreement). An employee working off cycle may withdraw his/her consent to work off cycle at any time. Indeed, S has withdrawn such consent and as of 2012 is back working on cycle. The Employer would then either have to bring the employee back on cycle, or rotate the employee with other employees off cycle. However, the Employer is not required to implement such a rotation and I accept the evidence provided by the Employer that such a rotation creates operational difficulties. I would note that even though an off cycle assignment may be of an indefinite duration the assignment only required hours to be released for one of either the winter or fall semesters and not both. I would also note that such an assignment is specifically designed to accommodate the wishes of full time employees. The assertion from counsel for the Employer is that if M and S had worked on cycle that the Employer would have been within its rights to assign non-full time employees to the summer semesters. If that is the case then the Employer does not favour non-full time employees by accommodating the wishes of a full time employee to work off cycle and then assigning the non-full time employee to the resulting open semester instead of having that non-full time employee teach in the summer. In summary then there are a number of peculiar factors to be considered on this issue. The first is that the assignment to M and S to an off cycle assignment is made to accommodate the wishes of M and S. M and S can be removed from this assignment at any time and can be assigned on cycle, either at their request (as one of them has) or at the initiation of the Employer. Furthermore, the assignment off cycle did not create work for non-full time teachers, rather – according to the Employer, it simply shifts those non-full time hours from summer to fall. In light of these circumstances, I therefore accept the Employer’s argument that the Employer is entitled to release hours for M and S so that those hours should not be considered in determining whether there has been a violation of Article 2. Issue 5b – Release Hours for SK and G SK has been accommodated for disability since 2008. In such cases the need for accommodation is considered by a return to work committee made up of representatives of both the Employer and the Union. M. Finnegan is a Union representative on the return to work committee and she testified before me. In 2008 the committee learned that SK was suffering from a disability that required accommodation to reduce her workload to 4/5ths of a full time load. The medical functional abilities form for SK from April 2008 indicated that the accommodation would be for a duration of one semester or more. In August, 2008 that information changed to indicate that the accommodation would be permanent. In May 2009 a new form was provided to indicate that the duration of SK”s limitations would be for one or two semesters or more, but in November 2009, the limitations were again described as indefinite. That information did not change after November 2009. Evidence was provided establishing that the Employer is not always required to accept the medical information before the return to work committee. However, the information regarding SK’s disability was never challenged. As a result of the accommodation, the Employer released 3 hours for SK’s accommodation in all but one of the semesters under consideration. The exception was in the winter of 2010. In that semester, SK required an additional accommodation resulting in the release of 9 hours rather than 3. Evidence regarding G established that she has been accommodated for her disability since 2006. Information before the return to work committee at that time indicated that her limitations were permanent and that information has not changed since that time. Under her accommodation, G teaches a 4/5th load – that is 12 instead of 15 hours. As part of her accommodation, G teaches her courses on line. Notwithstanding the information that G required permanent accommodation, the evidence presented established that in the fall of 2009, G approached the Employer and requested that she be allowed to teach a full load for that semester only, presumably to replenish her sick bank. The Employer was able to accommodate her request and in the winter of 2009 G did indeed teach a full load. However, in the winter of 2010, she reverted to a 4/5ths load. G teaches Business English on line as well as 2 General Education classes of a course entitled “ancestral routes”. General education courses consist of a pool of courses and all students are required to take a number of such courses. The ancestral routes course is one of the more popular courses and was developed by G. Peter Fortura, the chair of the school of business testified that G was expected to retire in the next year or two and that upon her retirement, the ancestral routes courses would not likely be offered. In any event, in addition to the three hours released for her 4/5th accommodation, the Employer released an additional 6 hours in each semester for the ancestral routes course taught by G. The Union does not agree with the calculation of release hours for SK and G. The Union notes that the disabilities and accommodations for each of those employees were permanent and to the extent that the accommodations were permanent there is no expectation that either SK or G would return to perform those hours. The Union also asserts that the Employer should not have released the 6 hours for which G had taught the Gen-Ed course. The information available was that G was teaching that course indefinitely and that she would not return to teach an additional 6 courses of English. The Employer submits that it could not really consider the accommodations as permanent as information had changed from year to year. In the case of SK, the information changed from indicating that the restrictions were permanent, to lasting for a semester or two to indefinite. In the case of G, notwithstanding the indication that the accommodation was permanent, G requested and was granted a full load for one semester in 2009. In these circumstances, the Employer asserts that it was required to keep these hours available in case either G or SK was able to return to a full teaching load. The Employer also asserts that it was entitled to release 6 hours in relation to G’s gen ed course, for two reasons. Counsel submitted that G could have decided at any time that she no longer wished to teach the gen ed course. In addition, counsel asserted that the Employer would likely drop the gen ed course after G’s imminent retirement and therefore those hours would no longer be available for a full time employee. It is my conclusion that by winter of 2010, both G’s and SK’s restriction to a 4/5th load should be considered permanent based on the information accepted by the return to work committee. In light of that information, the Employer was not entitled to hold the hours granted for that accommodation, in the very unlikely event that the information designated as permanent, would change. Thus, from the winter of 2010 and for the remainder of the semesters under consideration, 3 hours for each of G and SK, or a total of 6 hours, should be deducted from the release hours. I am also of the view that the Employer ought not to have released 6 hours for G’s teaching of the ancestral routes gen ed course. Mr. Fortura had testified that the ancestral routes course had been put in place before his time as Chair of the School of Business and he had been in that position for five years prior to his testimony which was given in October, 2012. He testified that G had told him that she “may” retire in a year or two, but no definite date was given for her retirement. The evidence before me is that these 6 hours were released for 6 consecutive semesters commencing in the fall of 2009. The evidence further establishes that these courses were taught before 2009 and would continue to be taught for some period of time. Indeed, Mr. Fortura testified that he expected that upon G’s retirement he would “suggest” that the ancestral routes course be removed from the gen ed pool, but it is not finally determined that is what the result will be. I would note that the evidence established that the ancestral routes course was one of the more popular courses in the gen ed pool. In these circumstances I do not accept that the Employer was operationally required to backfill these six hours with non-full time teachers. I have therefore determined that these six hours should not have been released for the period of time under consideration. Issue 6 – English taught in School of Hospitality. Mr. Fortuna testified that from 2007 until 2009 English in the School of Hospitality was taught in that School. Sometime around 2009 it was determined that Hospitality English would be delivered through the School of Business. During that time Mr. Fortura became the person responsible for the delivery of those courses. However it was soon decided to revert hospitality English back to the School of Hospitality and by the fall of 2011 that decision was fully implemented so that all hospitality English was taught in that school. It should be noted that according to Mr. Fortura, in the fall of 2011 there were 9 hours of Hospitality English taught by partial load teachers and 6 hours taught by part time teacher, after discounting all release hours. Mr. Fortura explained that English was a required course for a number of different schools and is generally taught separately within each school. He asserted two reasons for this. One was to rationalize reporting and accountability. For example, if a student wished to complain about a particular course or teacher, it would make most sense for the student to deal with the Dean responsible for the course and the teacher. By having a teacher from one school teach English in another school, confusion and inefficiency could be created. Additionally, courses were often tailored to meet the needs of the particular school in which the course is taught. Thus, English taught in Hospitality might be somewhat different than English taught in the School of Business. Different examples, tests and assignments would be used as they would be tailored to meet the overall needs and context of each particular school. Still, Mr. Fortura acknowledged that a student could rely on the credit from English in one school for a program in another school. He further acknowledged that the curriculum for hospitality English did not change in any significant way from when it was taught through the School of business to when it was taught in the School of Hospitality. As set out earlier, in a prior decision between these same parties released June 8, 2007, Arbitrator K. G. O’Neil concluded that it was legitimate for the Employer to insist that it would not assign teachers to teach across vocational and program lines. In that case the arbitrator had to consider three programs within ones school – the School of Media and Design. The three programs were script writing, professional writing and English. The Union was able to establish that there were sufficient non-full time hours being taught across those programs to justify hiring additional full time teachers, if the Employer would require employees to teach across those programs. The arbitrator concluded at p. 22 of her award that although it might have been acceptable or even reasonable to have employees teach across those programs it was also reasonable and within the Employer’s right to insist that it not employ teachers across those program lines. In this case the evidence does not establish a significant difference between Hospitality English and Business English. Still each of those courses is part of a distinct program. Furthermore, except for a brief period, those courses were taught through separate schools. Although the differences in the courses themselves may not appear substantial, the Employer is within its right under the collective agreement to organize these courses in separate programs and in separate schools, as it has. I am not persuaded that the Employer is required to hire additional full time teachers to teach across two different schools in these circumstances. Conclusion: In light of all the conclusions reached above I do not accept that there are sufficient hours performed by non-full time employees to require the Employer to hire two full time teachers as requested. I do accept however, that with the addition of the hours which the Employer had released for G and SK that over a two year period there were sufficient hours performed by non-full time employees to allow me to conclude that the Employer pursuant to Article 2, ought to have utilized one additional full time employee. Remedy: The Employer submits that if I were to find that one additional employee should have been hired, that no remedy is required. That is because in December 2011 the Employer made a decision to move another full time employee – CG – from a position in career and college preparation to Business English. That decision was to be implemented in the fall of 2012. The Employer asserts that that decision was made because of a loss of available work in career and college preparation. According to the Employer this transfer allowed the Employer to avoid the necessity of considering a layoff of CG. Counsel for the Union asked that I not consider the assignment of CG to Business English as adequate remedy for a number of reasons. First, she said that as the parties agreed that they would not present evidence of hours worked in 2012, I should not consider evidence of the transfer of CG in 2012. In addition, counsel notes that Article 27 requires the Employer to notify the Union of any intention to lay off full time personnel. Furthermore, the Union is entitled to consult with the Employer to discuss alternatives to the layoff. According to the Employer the transfer of CG to Business English cannot be implemented as an alternative to layoff as it was not implemented in consultation with the Union. I am unable to agree with either of the Union positions. Regarding the Union’s first point, the evidence of the transfer of CG was not presented as an attempt to expand the period of time looked at to consider whether Article 2 was violated. Rather, it was presented on the assumption of a finding that Article 2 would be found to have been violated based on evidence presented from 2009 through 2011. The evidence was presented as the Employer’s attempt to provide a remedy in advance of any conclusion that it had breached Article 2. There would be no point in ordering the Employer to remedy the breach by hiring an additional employee if it had already taken steps to do so in advance of my ruling. Regarding the Union’s second point, I do not accept that I am precluded from considering the transfer of CG because the Union was not consulted pursuant to the layoff provision in Article 27. First, although Article 27.05 required the Employer to notify the Union President and the College Employment Stability Committee of any “planned staff reduction”, I do not think that it can be said that there was a planned staff reduction when the Employer was able to simply move the employee to another assignment. If the transfer was improper that would no doubt result in a separate grievance. The fact is I have found that the Employer was required to employ an additional full time person to teach Business English and the Employer has assigned an additional full time employee to teach that course. No doubt it was the grievance and this litigation which, at least in part, compelled the Employer to assign CG to Business English. Having made that assignment I find that no further relief is required in this award. Before closing I note that there are remaining outstanding issues in these grievances, particularly surrounding a consideration of continuing education. I remain seized to deal with these and any other outstanding issues. Dated at Toronto, this 21st day of February, 2013. N J Norm Jesin