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HomeMy WebLinkAboutUnion 14-12-12 IN THE MATTER OF AN ARBITRATION BETWEEN: Sault College and OPSEU (Union & Group Grievances dated September 30, 2014 and Workload Complaints Regarding Committee Time on SWFs) Before: William Kaplan Sole Arbitrator Appearances For the Employer: Wallace Kenny Hicks Morley Barristers & Solicitors For the Union: Alison Nielsen-Jones Grievance Officer OPSEU This case proceeded to a hearing in Sault Ste. Marie on November 21, 2014. Post- hearing written submissions were completed on December 11, 2014. 2 Introduction This case concerns union and group grievances and five workload complaints. The parties agreed that I would have jurisdiction with respect to all of these matters. In brief, the grievances and complaints take issue with the College’s refusal to recognize certain work on the Standard Workload Forms (“SWFs”) of five faculty members – in particular, their participation, as assigned by the union, on two joint union-college committees: the UCC and CESC. The union asserts that the time spent on these committees should be recorded on each faculty member’s SWF. For its part, the college takes the position that as it cannot assign union work to a faculty member, and as the SWFs reflect activities assigned by the college appropriate to the professional role of a teacher, there has been no collective agreement breach. Moreover, in the college’s view, faculty members appointed by the union to serve on the UCC and CESC committees are, self-evidently, conducting union business and, as such, this work is governed by Article 8 – Union Business. The case proceeded to a hearing held in Sault Ste. Marie on November 21, 2014. Written submissions were received on December 5 & 11, 2014. The Collective Agreement The following are the applicable provisions of the collective agreement: 3 Article 8 UNION BUSINESS 8.01 It is agreed that up to a maximum of five persons per College be released from duty for sufficient time to engage in Arbitration Board hearings or Provincial Union Committee Meetings for members thereof or Union conventions for elected delegates and alternates thereto (which may include seminars or conferences which will be considered by the College concerned on their individual merit(s)), provided such release, which shall not be unreasonably withheld, does not in the opinion of the College President interfere with the efficient operation of the College. 8.02 The regular salary, pension contributions, sick leave entitlements, group insurance benefits, and other fringe benefits of employees released from duty under 8.01 shall continue to be paid by the College. The Union shall reimburse the College for the regular salary portion, or in the case of attendance of Union appointees, at meetings with management appointees of the Joint Educational Qualifications Subcommittee, Joint Insurance Committee, CAAT Pension Plan Committees, Employee/Employer Relations Committee, Joint Grievance Scheduling Committee or such other Joint Union Management Committees as the Union and Council may subsequently agree in writing will be similarly treated for 50% of the regular salary portion. 8.03A The Colleges agree to provide paid leaves of absence for the seven employees who are members of the Union’s negotiating team. These leaves shall extend from the beginning of bargaining for a new contract until such date as it is completed not just for the specific times at which direct negotiations are being conducted. 8.03B The regular salary, pension contributions, sick leave entitlements, group insurance benefits, and other fringe benefits of employees released from duty under 8.03A shall continue to be paid by the College. Such leave shall be with full accumulation of seniority. Employees on leave under this Article shall enjoy all rights provided by the Agreement and shall be deemed to have completed satisfactorily the total duties they could otherwise have been assigned. 8.04A The parties agree as to the desirability of a mutually acceptable basis for reduced teaching or work assignment for a full-time employee who has completed the probationary period for the purpose of assisting employees and the Union Local in the administration of this Agreement and the business directly pertinent thereto. The parties also agree that it is desirable that such basis be mutually resolved at the College level by the College and the Union Local Committees in order to take into account variations of: (i) the philosophical desirability of any teaching or work assignment reduction having regard to the Local structure of its officers and their function; (ii) the distribution of employees at the various campuses concerned and the distances involved together with the other physical characteristics and organization of the College concerned. 8.04B In recognition that resolution locally as referred to in 8.04A may not be possible for a variety of reasons, the parties agree to the following basis for reduction in teaching or work assignments to facilitate assistance to employees and the Union Local in the administration of this Agreement and the business directly pertinent thereto: 4 (i) In each College, there shall be a reduction of up to 30 teaching contact hours per week (as selected by the Union Local) that would otherwise have been assigned. For these hours the Union Local shall reimburse the College for 25% of the base salary portion of the first 15 hours. The Union Local shall reimburse the College for 50% of the basis salary portion of the next 15 hours. In the case of a Librarian or Counsellor, three hours of work or assignment shall be deemed to be equivalent to one teaching contact hour for the purposes of this Article only. For the purposes of workload calculation, each teaching contact hour shall be credited as 2.17 workload hours to be recorded on the Standard Workload Form (SWF). (ii) In each College there shall be a further reduction of up to 35 contact hours per week (as selected by the Union Local) that would otherwise have been assigned. For these hours the Union Local shall reimburse the College for 100% of the base salary portion. In the case of a Librarian or Counsellor, three hours of work or assignment shall be deemed to be equivalent to one teaching contact hour for the purpose of this Article only. For the purposes of workload calculation, each teaching contact hour shall be credited as 2.17 workload hours to be recorded on the SWF. 8.05A The Union Local president shall advise the College President by June 1 of each year of the employee(s) to have a reduced teaching or work assignment pursuant to the provisions of 8.04 and the College shall arrange the reductions effective for the academic year commencing September 1 subject to the availability of a suitable replacement or substitute for the employee(s) concerned and the efficient operation of the College. … Article 11 WORKLOAD 11.01A Each teacher shall have a workload that adheres to the provisions of this Article. 11.01B Total workload assigned and attributed by the College to a teacher shall not exceed 44 hours in any week for up to 36 weeks in which there are teaching contact hours for teachers in post-secondary programs and for up to 38 weeks in which there are teaching contact hours in the case of teachers not in post-secondary programs. The balance of the academic year shall be reserved for complementary functions and professional development. Workload factors to be considered are: (i) teaching contact hours (ii) attributed hours for preparation (iii) attributed hours for evaluation and feedback (iv) attributed hours for complementary functions … 11.01F 1 Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher by the College…. 5 11.02A 1 (a) Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload with the teacher and complete the SWF, attached as Appendix 1, to be provided by the College. The supervisor shall give a copy to the teacher not later than six weeks prior to the beginning of the period covered by timetable excluding holidays and vacations. It is recognized that if the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher. … 11.02A 2 The SWF shall include all details of the total workload including teaching contact hours, accumulated contact days, accumulated teaching hours, number of sections, type and number of preparations, type of evaluation/feedback required by the curriculum, class size, attributed hours, contact days, language of instruction and complementary functions. Union Submissions In the union’s view, when faculty members were participating on the UCC and CESC committees they were performing College work. The historical background was, the union argued, important: Until recently, the union was not charged for the time spent by faculty members on committees such as these. The local union, again until recently, annually provided the College with a list indicating how much time off was required for identified faculty members including those appointed to joint committees such as the UCC and CESC. The SWFs often, but not always, reflected these assignments. In the summer of 2011, the College invoiced the union for certain work – not, apparently, the work at issue here – pursuant to Article 8. Minutes of Settlement, the details of which cannot be adduced pursuant to their terms, resolved a number of outstanding issues including committee time. These Minutes expired on August 31, 2014. In the meantime, and continuing the historical background, the union observed that in April 2014, SWFs were developed for the fall 2014 semester and followed 6 the usual and past practice. Those SWFs recorded and included time allocated for the UCC and CESC joint committees with the individual faculty members continuing to receive credit for this work. However, just prior to the fall semester, and without any notice or consultation, the College amended those SWFs to remove any credit allocation for UCC and CESC joint committee work. Although no professor exceeded the maximum number of hours, the grievances and workload complaints were filed. As noted in the introduction, the College was now taking the position that this joint committee work was union work, that it came under the rubric of Article 8, and that it was not work that could be properly reflected on a SWF. The union disagreed given the past history and the collective agreement. In the union’s submission, when Article 8 was examined it was clear that it did not apply to this joint committee work but was instead more focused on work within the college system as a whole referring to various committees but not the two at issue here. The only committees that could be covered by Article 8 were the ones that were referenced in the provision. Union business was, union counsel argued, clearly described in that article and did not apply to local college business such as participating on joint committees such as the UCC and CESC. Had the parties wished to include work on these two committees under the rubric of Article 8, it would have been easy enough for them to do so by including them. Significantly, they had not, and when the actual work was examined, it was clear that it was work for the College as a whole and should, therefore, be reflected on the SWF. It should most definitely not be charged back to the union. 7 In addition, the union continued, it was clear that employees got paid for work, and this was clearly work, and so should attract compensation; otherwise the faculty serving on these committees were volunteers, and nothing in the collective agreement provided for that. It was noteworthy, the union argued, that Article 11.01B1 referred to work that was assigned as well as work that was attributed. The UCC and CESC fell within complementary functions as attributed work as the College participated in both of these committees. Quite clearly, in the union’s view, participation on a joint committee was completely distinct from union business leading to the conclusion that these joint committee activities should be reflected on the SWF. The union also observed that there were joint committees where the union selected its members where the employees did receive compensation for their work: health and safety and the Union/College Workload Management Group, and both were reflected on a faculty member’s SWF. For all of these reasons, and others, the union asked for a declaration of breach – for the College’s failure to abide by Article 11.02A(i) – and for a direction that it continue the past practice of allocating the UCC and CESC committee work on individual SWFs. Employer Submissions As earlier noted, in the College’s view, there had been no collective agreement breach. The union had been previously notified that faculty member participation on UCC and CESC committees would no longer be reflected on the SWFs and while there may have been a breach of Article 11.02A(i), it was completely technical for two reasons: first, the union knew that there would be 8 no further SWF recognition of this committee work and, secondly, because no faculty member lost any compensation of any kind or was otherwise affected in any way by these committee assignments no longer being reflected on the SWFs. The April SWFs had been issued in error and were corrected. It was, the College argued, as straightforward as that. Turning to the collective agreement, College counsel noted that it provided what work was to be listed on the SWF, and that did not include union activity. Complementary functions were functions that were complementary to the academic mission – teaching, research, administration, grading, feedback, office hours, etc., as assigned by the College, not representing the union on joint union- college committees. Moreover, Article 8 was a complete code: it provided for union representation on various system-wide committees and in various system wide activities, but it also provided, in Articles 8.04A & B, for various and wide-ranging union activities at the local level and for reimbursement to the College for the cost of those activities where there parties did not agree. It also specifically spoke to “College and Union Local Committees.” That was the provision, the College submitted, that was governing in this case. The UCC was one of the local College-Union committees. There was reference to it in Article 7, and there was reference to another such committee, the CESC, in Article 28. The agreement between the parties was straightforward: the union appointed their members to represent union interests. If faculty members choose to accept 9 an appointment from the union to serve on a joint committee, and represent union interests, that was their choice. Other than as specifically provided for in Article 8, it was not the responsibility of the College to pay for it. In fact, the reverse was true when these faculty members were performing the exact union work contemplated in Article 8.04A. This was not work the College assigned, it was not work the College could assign, and it was not work that could properly be reflected on a SWF. For all of these reasons, and others, the College asked that the grievances and complaints be dismissed. Decision Having carefully considered the evidence and arguments of the parties, I am of the view that the grievances and workload complaints must be dismissed. Both parties filed a number of authorities, and they have been carefully reviewed. These cases make it clear that only work assigned by a college appears on a SWF (other than through the application of Article 8.04B which is not relevant to the determination of the specific issue before me). The cases also make clear that when faculty volunteer for certain activities, for instance volunteering at an open house, participation as a union representative through election to certain committees, or coaching for student success, or any of a number of other examples, that work does not appear on a SWF. Put another way, the only work that appears on a SWF is work that a college has assigned. Volunteer work on a joint committee where the individual has been appointed by the union to represent union interests is union work, not a complementary function, and it certainly has not been assigned or attributed by the College. 10 Article 11.01B1 makes it clear that the work is assigned and attributed, not one or the other (and attribution, of course, has a specific meaning under Article 11.01F). To go on a SWF, work must be assigned by a college. The main case referred to by the union respecting participation on the WMG is factually and legally distinguishable. In that case, the parties had agreed to allocate SWF hours and the adjudicator’s job was to determine how many. The fact that the parties may agree, in some cases, to reduce work assignments in some colleges for some committees, does not mean that they have agreed to reduce work assignments in all colleges for all committees. And in some situations, such as participation on joint occupational health and safety committees, there are underlying statutory obligations. In the absence of these unique circumstances, where the parties do not agree under Article 8.04A, Article 8.04B applies. In my view, Article 8, considered as a whole and in context, makes this conclusion manifest. It provides for a regime for the release and payment of faculty members participating in the administration of the union and the collective agreement, both internally to the College and externally to the colleges system. Internally, Article 8.04A provides: The parties agree as to the desirability of a mutually acceptable basis for reduced teaching or work assignment for a full-time employee who has completed the probationary period for the purpose of assisting employees and the Union Local in the administration of this Agreement and the business directly pertinent thereto. The parties also agree that it is desirable that such basis be mutually resolved at the College level by the College and the Union Local Committees in order to take into account variations of: of (emphasis mine)…. The terms of reference for both the UCC and CESC as set out in the collective agreement make it very clear that these are local joint committees with the union 11 representatives appointed by the union to represent its interests at the College as part of the representation of employees and the administration of the collective agreement. There is no way to understand these activities other than as union business. To be sure, faculty members who participate in union business through membership in local committees such as those at issue in this case are rendering valuable service to the entire college community. However, they are doing so in their capacity as union representatives not in their capacity as faculty where their work would be appropriately recognized on their individual SWFs. The fact that some joint work, such as participation on joint occupational health and safety committees – where the participation and remuneration are mandated by statute – appears on a SWF cannot affect the determination of the matters in dispute. Quite clearly, Article 8 applies to a wide ambit of union activity – including participation on the UCC and CESC committees – as assigned by the union to its members. Although these committees are joint, the fact is that the faculty members who serve on them – while making an important, indeed, indispensable contribution to the operation of the institution – have been assigned by and represent the union. This is not work that would come within the ambit of the SWF. Obviously, there is nothing in this award that would preclude any college from making whatever mutually acceptable arrangements it wished for release from work under Article 8.04A. Article 8.04B only comes into play absent local resolution. Accordingly, and for the foregoing reasons, there is a declaration of breach for the failure to consult with faculty prior to changing their SWFs. However, there 12 were no damages suffered by anyone. On the merits, the grievances and workload complaints are dismissed. DATED at Toronto this 12th day of December 2014. “William Kaplan” –––––––––––––––––––––––––––– William Kaplan, Sole Arbitrator