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HomeMy WebLinkAboutUnion 13-12-29 1 IN THE MATTER OF AN ARBITRATION BETWEEN: SENECA COLLEGE (The "College") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 560 (The "Union") AND IN THE MATTER OF A GRIEVANCE CONCERNING THE ASSIGNMENT OF COORDINATOR DUTIES TO PARTIAL LOAD PROFESSORS BOARD OF ARBITRATION David K.L Starkman Chair Carla Zabek College Nominee Pamela Munt-Madill Union Nominee APPEARANCES FOR THE COLLEGE Brenda Bowlby Counsel APPEARANCES FOR THE UNION Jane Letton Counsel A hearing in this matter was held on May 14, June 12, and October 7, 2013 at Toronto, Ontario 2 AWARD The Union grieves that the College has violated Article 14 of the collective agreement by assigning Co-ordinator Duties to Partial-Load Professors. In the Union's view, Coordinator Duties are only to be assigned to Full-Time Professors. The relevant portions of article 14 provide as follows: Guidelines Allowances - Professors 14.03 A 3 Coordinator Allowance — Coordinators are teachers who in addition to their teaching responsibilities are required to provide academic leadership in the coordination of courses and/or programs. Coordinators report to the academic manager who assigns their specific duties, which shall be determined prior to the acceptance of the designation, subject to changes as circumstances require. It is understood that coordinators do not have responsibility for the supervision or for the disciplining of teachers in the bargaining unit. It is not the intention of the Colleges to require employees to accept the designation of coordinator against their wishes. Those employees who are designated as coordinators will receive an allowance equal to one or two steps on the appropriate salary schedule. Such allowance will be in addition to the individual's annual base salary. Ms Hannah Sweet testified concerning the duties of a Coordinator which include being a team leader, advising students, and mentoring and coaching part time faculty. 3 Mr. Ted Montgomery, the Local Union President, testified that he has been part of the Union negotiating team on nine occasions since 1986. During negotiations in 1990, the parties were discussing the Pay Equity legislation and an issue arose as to whether the compensation paid to Partial-Load Professors and Instructors, who were paid an hourly rate, was equal to the compensation paid to Full-Time Professors and Instructors who were paid an annual salary. Mr. Montgomery reviewed how the comparison between compensation for Partial Load employees and Full Time employees was done, and indicated that the parties agreed that Partial Load employees would be paid for teaching hours which included preparation and evaluation, and which did not include complementary functions, whereas Full Time employees would be assigned teaching hours, and then be credited with complementary functions such as preparation, evaluation, administration, out of classroom assistance to students, and other functions to make a Full Time teaching load. Mr. Montgomery stated that Partial-Load Professors are hired to teach, and that to assign them additional work such as Coordinator duties takes them out of that classification and is a way to circumvent the agreed to restrictions of the collective agreement, by assigning them more than 12 hours of work per week, and not giving them the rights and benefits of full time employees. 4 SUBMISSIONS OF THE UNION The Union referred to portions of Article 26 of the collective agreement concerning Partial-Load Employees which provide as follows; 26.01A The Article contains provisions exclusively related to partial-load employees. However, this Article is not inclusive of all rights of partial-load employees under the Collective Agreement. 26.01 B A partial-load employee is defined as a teacher who teaches more than six and up to and including 12 hours per week on a regular basis. 26.02 A A partial-load employee shall not receive salary or vacations but shall be paid for the performance of each teaching contact hour at an hourly rate calculated in accordance with 26.04. 26.02 B A portion of the hourly rate for partial-load teachers is in lieu of vacation pay. In the Union's view, a Partial-Load employee is employed to teach for between 7-12 hours per week on a regular basis and is paid for teaching contact hours and not for any complementary functions, and the College's efforts to assign Coordinator Duties to Partial-Load employees amounts to bargaining individual contracts of employment with specific individuals which is contrary to the provisions of the collective agreement. 5 The Union also referred to the language of article 14.03 A 3 concerning the compensation paid to a Coordinator and in particular that such allowance will be "in addition to the individual's annual base salary", which in its view, suggests that a Coordinator must be a Full-Time employee, who is paid a base salary, and not a Partial- Load employee who is paid an hourly rate. SUBMISSIONS OF THE COLLEGE The College submitted that the definition of Partial-Load employees in article 26, is only concerned with teaching contact hours, but is not a limit on what other functions can be assigned. It was also noted that nothing in article 14.03 excludes the assignment of Coordinator duties to Partial-Load Professors. In its view, it would take clearer language than is found in article 14.03 A 3 to preclude Partial-Load Professors from performing Coordinator Duties and at best, there is an ambiguity as to how Partial-Load Professors performing such duties are to be paid. Article 11 deals with workload assignments, and the College noted that Article 11.02 F 12 provides specifically that "references to "teacher" in this Article include "instructor" but does not include partial-load teachers", and noted that Article 14 does not contain similar specific language excluding the assignment of Coordinator duties to Partial-Load Professors. 6 Reference was made to the Class Definition of Professor in the collective agreement, which does not differentiate between Partial-Load and Full Time Professors and which provides in part: CLASS DEFINITION PROFESSOR Under the direction of the senior academic officer of the College or designate, a Professor is responsible for providing academic leadership and for developing an effective learning environment for students.... The College also referred to the management rights clause in article 6.01(ii) which gives the College the right to: (ii) 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. DECISION It is the role of a Board of Arbitration to discern the intention of the parties from the words used in the collective agreement, and to the extent possible to ascribe meaning to the words which make sense in the context of the entirety of the collective agreement. As noted in Wilson Truck Lines Ltd., (1999), 80 L.A.C. (4t") 1 (Verity) and 7 quoted with approval at p. 16 in Algonquin College and O.P.S.E.U., unreported, June 21, 2005 (S. Tacon): The task of the arbitrator is to interpret and apply the collective agreement in accordance with the language chosen by the parties themselves. The basic rule of interpretation is that clear words of a collective agreement are to be given their ordinary and plain meaning. Arbitrator Palmer makes that point in his text...in which he quotes from Re U.A.W., Loc., 458 and Massey-Harris Co. (1953), 4 L.A.C. 159 (Gale) at p. 1580: [W]e must ascertain the meaning of what is written into [a] clause and to give effect to the intention of the signatories to the agreement as so expressed. If, on its face, the clause is logical and unambiguous, we are required to apply its language in the apparent sense in which it is used, notwithstanding that the result may be obnoxious to one side or the other. In these circumstances it would be wrong of us to guess that some effect other than that indicated by the language therein contained was contemplated or to add words to accomplish a different result." [at pp. 15- 6] The issue is whether the College can assign Coordinator Duties to Partial-Load Professors. The parties have not addressed this matter directly in the collective agreement, yet certain provisions provide an indication of the intention of the parties with respect to this issue. The management rights clause in article 6 gives the College the broad right to manage the College, subject to article 6.02 which provides that such right "will be exercised in a manner consistent with the provisions of this Agreement". The Class Definition of Professor, which applies to both Full Time and Partial Load Professors, provides that Professors are responsible for academic leadership, and Coordinators would, at least in part, have leadership responsibilities. 8 Pursuant to Article 11, Full-Time Professors are assigned workload factors which include teaching contact hours, attributed hours for preparation, evaluation and feedback, and attributed hours for complementary functions, which include out-of-class assistance to students, normal administrative tasks and, where applicable, Coordinator duties. Article 11.02 F 12 provides that references to Teacher in Article 11 includes Instructors but does not include Partial-Load teachers. A Full Time Professor is paid an annual salary as set out in Article 14.03 A 1 (a), the introduction to which states: 14.03 A 1 (a) The following table indicates the annual base salary paid at each step on the Salary Schedule to full-time Professors, Counsellors and Librarians". Article 26.01 B defines a Partial-Load employee as a teacher who teaches more than six and up to and including twelve hours per week on a regular basis. Article 14.02A provides that the salary schedules in article 14.03 do not apply to Partial Load employees who shall be paid in accordance with article 29.04 which provides for payment based on an hourly rate for each teaching contact hour. Article 14.03 A 3 deals with the provision of a Coordinator Allowance and is placed in the article which generally deals with compensation for Full Time employees. Nevertheless it is under the heading "Guidelines Allowances — Professors", and since Partial-Load teachers are included within the Class Definition of Professors, is suggestive that the parties intended that the Guideline with respect to Coordinator 9 Allowances would apply to both Full Time and Partial-Load Professors. As well, the second last sentence of the section provides that: "Those employees who are designated as coordinators will receive an allowance equal to one or two steps on the appropriate salary schedule". There is only one salary schedule for full-time Professors in article 14, and the use of the words "appropriate salary schedule" suggests that the parties contemplated that more than one salary schedule for Professors may be involved such as the salary schedule for Partial-Load employees contained in Article 26. On the other hand, the final sentence of Article 14.03 A 3 provides that "Such allowance will be in addition to the individual's annual base salary". The use of the words "base salary", which is the wording used to describe the salary schedule for Full-Time Professors, and not the wording used to describe the remuneration for Partial-Load employees suggests that it was contemplated by the parties that Coordinator Duties would only be assigned to Full-Time Professors. Yet there is nothing in Article 14 which provides that duties, other than contact teaching hours cannot be assigned to Partial- Load employees. On the other hand, Article 26.01 B defines a Partial-Load employee as a teacher who teaches more than six and up to and including 12 hours per week on a regular basis and makes no mention of complementary or other duties, and makes no mention of Partial-Load Professors working for more than twelve hours per week on a regular basis. Article 14.03 A 3 makes it clear that the acceptance of Coordinator Duties by a Professor is voluntary, but makes no mention of what is to happen if there are no Full- Time Professors willing or able to accept the assignment. 10 If the Union's submission is accepted then the College cannot assign Coordinator Duties to Partial-Load Professors. The remedy the Union seeks is to have Partial-Load Professors treated and paid as full-time Professors for the period in which they performed Coordinator Duties. This might have the result of depriving certain departments of a Coordinator, or greatly increase the cost of providing Coordinator Duties. On the other hand, if the College's proposal is accepted and can assign Coordinator Duties to Partial-Load Professors whenever it wishes, it would deprive full- time employees of the opportunity of performing such functions and would permit the College to assign Partial-Load Professors a mix of contact teaching hours and other duties which could require them to work more than twelve hours per week, should they wish to do so, and would also ignore the wording of article 14.03 A 3 which references remuneration for such assignments to be compensated by steps on a salary scale, which is clearly a reference to Full-Time Professors. This Board finds the words used by the parties to express their intention with respect to the assignment of Coordinator Duties to Partial-Load Professors to be unclear and ambiguous and in these circumstances has chosen to give the words an interpretation that best respects the words used and makes labour relations sense. Article 14.03 A 3 requires the College to assign Coordinator Duties to Full Time Professors provided there are Full time Professors willing and able to accept the assignment. If, however, after making reasonable efforts, the College cannot find a Full Time Professor(s) willing and able to accept the Coordinator Duty assignment, the College can then exercise its management right to assign the Coordinator Duties to a suitable Partial-Load Professor who is willing to accept the assignment, and to pay such Partial-Load Professor one or 11 two steps greater on the Partial-Load pay grid. This result is the only way this Board of Arbitration can find to give meaning to the language used by the parties, and to arrive at a result that makes labour relations sense. In the course of this proceeding the Union made representations that the College was in breach of the collective agreement because it was bargaining with individual teachers with respect to workload, and the College made representations that it could not find any Full Time teachers willing to accept the Coordinator Assignments which were given to Partial Load employees. The Board heard no evidence with respect to what efforts the College made to find Full-Time Professors to perform the Coordinator Duties or the discussions leading to the individual assignments. Therefore, having rendered this Award, the Board will remain seized with respect to all matters concerning the interpretation or implementation of this decision, including the re-convening of the hearing to hear evidence with respect to the circumstances surrounding the assignments, should it be requested to do so within sixty days of the date of this Award. 12 Dated at Maberly, Ontario this 29th day of December, 2013 14 DMK.L. r 1 man Chair "I concur" Carla Zabek College Nominee "I concur" Pamela Munt-Madill Union Nominee