HomeMy WebLinkAboutUnion 91-12-18IN THE MATTER OF AN ARBITRATION
BETWEEN:
CAMBRIAN COLLEGE Hereinafter referred to as the College)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
Hereinafter referred to as the Union)
AND IN THE MATTER OF A GROUP GRIEVANCE (OPSEU FILE NO. 91C915)
BOARD OF ARBITRATION:Gail Brent
R. J. O'Connor, College Nominee
Jon McManus, Union Nominee
APPEARANCES:
FOR THE COLLEGE:D. K. Gray, Counsel
R. C. Hurly
FOR THE UNION:Kevin Whitaker, Counsel
Hearing held in Sudbury, Ontario on November 14, 1991.
DECISION
The grievance (Ex. 2) dated March, 1991 alleges that the College violated the collective agreement with the
memorandum dated March 8, 1991 (Ex. 5, translated in Ex. 5A). Neither party raised any preliminary objections
regarding arbitrability or jurisdiction.
There were originally three grievors: Messrs Boulard, Clement and Lavallee. M. Boulard is no longer pursuing the
matter. In the following paragraphs we will attempt to summarize the evidence presented at the hearing.
The grievors are professors in the Ecole de technologie et des sciences administratives at the College. In particular,
they teach in the electronics department. There are four professors in the department, and they share teaching
facilities with their English speaking electronics colleagues. The grievance involves the activities of the non-
teaching period during the March break, 1991. It is common ground between the parties that during that period the
grievors are expected to be working even though classes are not in session.
The Ecole de technologie et des sciences administratives is composed of four schools: Technology, Business,
Justice & Public Security, and Trades. Ivan Filion is the Dean. The grievors teach in the Technology School, which
has five programmes: Chemistry, Electronics, Construction Sciences, Forestry, and Fish & Wildlife. On or about
February 11, 1991 Dean Filion circulated a memorandum with attached questionnaire dealing with March break
activities (Ex. 6, translation Ex. 6A); the memorandum went to all full-time faculty members under his jurisdiction.
A reasonable reading of the memorandum indicates that the College was going to initiate some departmental
activities during the March break and wanted faculty input regarding what activities they wanted to see initiated or
were interested in.
The grievors did not respond to this memorandum in any way. It would appear from the evidence that of the 27 - 30
full time faculty members roughly 8 - 11 returned the questionnaires and the rest, save for those in Electronics,
communicated with Dean Filion either through their department heads or directly. Only one of the Electronics
professors, M. Saari, spoke to Dean Filion and inform him of his plans for the March break. On or about March 8,
1991 the grievors received the following memorandum from Dean Filion (Ex. 5, translation in Ex. 5A): SUBJECT:
Documentation of the condition of the equipment in the electronic laboratories
We are now taking particular interest in the condition of the equipment in the electronic laboratories. I would like to
ask you to use the March break to document the condition of all the equipment that you use during the year. This
documentation should contain minimally: the serial number of the piece of equipment;. the name of the piece of
equipment and of the model; / a description of the problem and a suggestion on -how to repair; the frequency of
parts needing to be
use in a year; a list of the evident replaced (i.e. control switches, electrical cord, etc.;
the results of the attempts at repairing or adjusting, if such attempts have taken place; the replacement cost for the
which
piece of equipment specify the precise model would replace it).
I would like this documentation to be entered in a database, such as <123>, AS EASY or even dBase, so that we
can sort out and classify the information.
The rooms which need be studied are:
4266 - Luc Boulard and Antti Saari,
4276 - R. Clement and Antti Saari,
4254 - C. Lavallee and Luc Boulard,
4273 - R. Cle'ment and C. Lavallee.
The other laboratories shall be done in May and June.
I would like to meet with you on Thursday and Friday, March 14 and 15, in the afternoon, to familiarise myself
with the condition of this equipment.
Please schedule an appointment with me on one of these afternoons.
we will study two classrooms ~er aftero~o~, 2 ~6 ~ ~ 2 7 3 Thursday, 4276 and 4254 on Friday.
Brian Dumontelle will be happy to help you, if you need his assistance.
I hope that this work will help us to better coordinate equipment replacement.
If you have any question, do not hesitate to come and see me. Thank you.
The grievors went to see Dean Filion on the morning of Monday, March 11th. They told the Dean, in essence, that
they did not agree with his memorandum Ex; 5J, that they did not consider that it was their job to do that work, that
they had work to do during the March break in connection with their courses, and that they were only going to do
that work because they were ordered to do it. During the course of this meeting they did not specify, nor were they
asked to specify, what work they had planned for themselves during the break. Given Dean Filion's evidence,
however, it is clear that he accepted that they had work to do in connection with their courses and that they were
going to do it during the break. Dean Filion also said that had the grievors indicated that they had pressing things to
do during the March break it would have influenced his decision to assign this work. It is agreed that he did tell the
grievors that he was willing to accommodate their workloads.
The evidence was that none of the grievors had ever been asked to do this type of work before and they considered
it to be the work of the technologist, Brian Dumontelle, who was responsible for the maintenance of the equipment.
The Dean testified that he has asked academics in other areas for which he is responsible to carry out these tasks
because as academics they are in a better position to assess course needs and the impact which curriculum changes
will have on the equipment needs of the courses. It is generally agreed that the quality of the education offered is
directly affected by the quality of the equipment and its state of repair. The Union also agreed that the work which
was requested of the grievors was work which fell within the class definition of Professor in the collective
agreement.
Dean Filion testified that he wrote Exhibit 5 to have the state of the equipment documented in order to enhance a
more effective long term capital purchase plan. He said that he wanted this survey done by faculty rather than by
support staff because the faculty use the equipment and so are better placed to prioritize the need for replacement,
to identify the frequency of use, and to identify future needs. Dean Filion said that he did not expect faculty
members to do any repair work on the equipment or to move any equipment. He indicated that that is why he
specified the availability of the technologist. Later in his evidence Dean Filion did indicate that there were matters
which the technologist could do and with which he would be familiar. He also seemed to indicate that the grievors
could have used the technologist as a resource person to provide certain information which they would collect in
their report to him.
The submissions of counsel revolved primarily around Article 4, and in particular Article 4.08. There are no
significant disputes on the law, and the parties both agreed that the work requested was work which fell within the
class definition of professor. The submissions dealt with the interpretation to be given the collective agreement and
the evidence. Rather than summarize them, we will simply note that they were considered fully along with the
evidence and the provisions of the collective agreement.
The following articles of the collective agreement were referred to in some detail:
4.01 (2ila) Total workload assigned and attributed by the College to a teacher shall not exceed forty-four (44) hours
in any week for up to thirty-six (36) weeks in which there are teaching contact hours for teachers in post-secondary
programs ....
The balance of the academic year shall be reserved for complementary functions and professional development.
...
4.01 (6) Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher
by the College. Hours for such functions shall be attributed on an hour for hour basis.
4.08 In keeping with the professional responsibility of the teacher, non-teaching periods are used for activities
initiated by the teacher and by the College as part of the parties' mutual commitment to professionalism, the quality
of education and professional development.
Such activities will be undertaken by mutual consent and agreement will not be unreasonably withheld.
Such activities will neither be recorded nor scheduled except as in accordance with Article 4.01(7 (a).
The issues to be determined area was the activity outlined in Exhibit 5 within the sort of activities contemplated by
Article 4.08; and (2) if so, did the grievors withhold their consent unreasonably. Article 4, as a whole, deals with
workload. Article 4.08 deals specifically with non-teaching periods. Looking at Article 4.01(21a), it can be said
generally that during teaching periods professors are engaged in teaching and various complementary functions that
are accounted for as part of their workload, and that during non-teaching periods they are engaged in
complementary functions and professional development. Article 4.08 is a specific indication by the parties of the
sort of activities appropriate for nonteaching periods.
Article 4.08 recognizes that "in keeping with the professional responsibilities of the teacher" there are certain
activities which can be initiated "as part of the parties' mutual commitment to ... the quality of education". We have
specifically isolated "quality of education" because we do not consider on the evidence that either
"professionalism" or "professional development" are concepts with which we have to deal in this grievance. We
certainly can agree that at its broadest "quality of education" could be said to be affected by the cleanliness of the
classrooms, whether garbage was removed from the hallways, etc. However, it is clear that Article 4.08
contemplates only activities affecting "quality of education" which are consistent with the professional
responsibilities of the professor. Therefore, any activity which involves curriculum planning, effective delivery of
courses, improving the hands-on educational experience of the students, etc. is a "quality of education" issue which
is consistent with the professor's professional responsibilities.
In this case, looking at all of the evidence, especially including the Dean's testimony and his explanation of why he
wanted this work done by professors, it is our conclusion that what the grievors were asked to do can reasonably be
regarded as an activity contemplated by Article 4.08 as appropriate for a non-teaching period. It is our view that an
overall assessment of equipment needs having regard to the curriculum and any contemplated curriculum changes
in order to ensure a more effective plan for capital spending is an activity which is consistent with a professor's
responsibilities and commitment to quality of education.
Having determined that, however, we must now determine whether the grievors' consent was unreasonably
withheld. This is a more difficult question to answer. Certainly, on the evidence which was before us, including
the Dean's full explanation of his reasons, his view that the technologist could be used as a resource for much of the
data to be gathered, and his offer to be flexible regarding the timing of the project, it does not appear to be
reasonable to withhold consent. However, upon a careful examination of the evidence, we are not so certain that
Dean Filion was as expansive in his meeting with the grievors as he was when he testified before us. The meeting
the grievors had with him on March 11th does not appear to be one where much information was exchanged.
Moreover, when one reads the memorandum of March 8th (Ex. 5) objectively, it is not clear that the grievors were
being asked to do what Dean Filion testified he really wanted to have done. There is no mention of the need to
consider potential curriculum changes or effective teaching. For the most part it simply appears to be a request to
do something mechanical. Hence, no doubt, the grievors' automatic reaction that this was not appropriate work for
them to do.
We agree that the grievors did not respond to Dean Filion's February memorandum (Ex. 6) and that following that
memorandum they could reasonably have expected to have the College initiate some activities for them to
undertake during the March break. However, those activities had to be of a nature contemplated by Article 4.08.
Clearly the grievors considered that the activities were not of such a nature, and simply by reading Exhibit 5 in
isolation their reaction is understandable. The explanation and evidence we heard places Exhibit 5 in context, and
the activities within those contemplated by Article 4.08.
This is a situation where a little more communication by both sides would have helped a lot. Dean Filion could
have expressed his purposes and reasons more clearly to the grievors; the grievors could have been more specific
about their plans and how they intended to fill the non teaching period in the absence of this full communication
which would have clarified the situation, all participants could be said to have reasonably withheld consent.
Given the peculiar circumstances in this case: in particular the lack of an explanation which would have clarified
the intent of the memorandum and made it clear that the work requested was appropriate for an academic, we
believe that even though the activity was appropriate the grievors' consent was not unreasonably withheld. Having
said that, though, now that Dean Filion has clarified the intent and purpose of the request, should he ask the
grievors to do the work during the next or some other non-teaching period we do not think that they could
reasonably withhold their consent on the basis of any belief that the work requested was inappropriate.
The parties agreed that if we considered that there was any basis for upholding the grievance we should remain
seized with regard to the question of remedy and allow them to try to deal with it. We will do so; however, in so
doing we urge them to settle the matter for themselves.
DATED AT LONDON, ONTARIO THIS 18 DAY OF DECEMBER , 1991.
Gail Brent
I concur / descent
J. O'Connor, College Nominee
I concur / descent
J McManus, Union Nominee
ADDENDUM
I am concerned about the focus on the issue of communication. As early as February 11 Dean Filion communicated
with faculty members on the subject of March break activities. The grievors ignored this correspondence while
other faculty responded in some fashion. It is only following receipt of the March 8 memorandum from Dean Filion
that they are provoked to react and on March 11 appear at Dean Filion's office to indicate that other unspecified
work was required to be done by them.
I am content with the Majority Award and have concurred, but it is clear by the grievor's conduct from the outset
that they did not intend to co-operate with the Dean's efforts to arrange work assignments for the March break.
I would not wish my concurrence, therefore, to be construed as any criticism of the Dean's conduct. The award
itself makes it clear if a similar situation should arise again it would be unreasonable for the grievors to withhold
their consent.
J. O'Connor
college Nominee