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HomeMy WebLinkAboutAnderson 04-02-10 ~Fi~T - ~ - IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (The "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The "Union") AND IN THE MATTER OF THE GRIEVANCE OF DANIEL ANDERSON David K.L. Starkman Arbitrator APPEARANCES FOR THE COLLEGE J.D. Sharp Counsel Diane McCutcheon Manager, Employee Relations Morris Uremovich Dean, School of Advanced Technology Jan Boogerd Chair APPEARANCES FOR THE UNION Susan Ballentyne Counsel Tom Fernie President, Local 415 Pat Kennedy First Vice-President, Local 415 Jack Kennedy Secretary, Local 415 A Hearing in this matter was held on October 29, and November 21,2003 and January 26, and 30, 2004 at Ottawa, Ontario 2 AWARD The grievor, Daniel Anderson, alleges that the College has violated the provisions of the collective agreement, by laying him off and retaining in employment faculty with less seniority who were assigned courses he was qualified to teach in violation of article 27.08 A of the collective agreement which provides that: 27.08 A An employee claiming improper lay-off, contrary to the provisions of this Agreement, shall state in the grievance the positions occupied by full-time and non-full-time employees whom the employee claims entitlement to displace. The time limit referred to in 32.02 for presenting complaints shall apply from the date written notice of lay-off is given to the employee. The grievance identifies the positions occupied by Professors Trites and Faycal as being teaching loads that the grievor claimed he had the competence, skill and experience to teach. The College's position was that the grievor did not have the competence, skill and experience to fulfill the requirements of either of the positions identified as set out in article 27.06 A as follows: 27.06 A When the College decides to lay off or to reduce the number of full-time employees who have completed the probationary 3 period or transfer involuntari'ly full-time employees who have completed the probationary period to another position from that previously held as a result of such lay-off or reduction of employees, the following placement and displacement provisions shall apply to full-time employees so affected. Where an employee has the competence, skill and experience to fulfill the requirements of the full-time position concerned, seniority shall apply consistent with the following... (i) Failing placement under 27.06 A (ii), such employee shall be reassigned to displace a full-time employee in another classification upon acceptance of the identical employment conditions as the classification concerned provided that: (a) the displacing employee has the competence, skill and experience to fulfill the requirements of the positions concerned; (b) the employee being displaced has lesser seniority with the College. The grievor had taught full time in the Fire Prevention Program since 1990. By correspondence dated April 25, 2002 the grievor was advised that his position had been declared redundant as follows: Dear Mr. Anderson: RE: Academic Redundant Positions As you may be aware, the College has declared a number of positions redundant as a result of program cancellations and to balance the 2002- 2003 budget. There have been a total of 25 positions eliminated in various classifications. There have also been vacancies that have been eliminated and future retirements or resignations will not be replaced automatically. The purpose of this letter is to inform you that you have been identified as a Faculty member who's positions has been declared redundant. We will 4 be working with the Local Executive Committee of OPSEU 415 and making sure that the provisions of article 27 are respected. We have decided to give you some advance notification so that you may explore other possibilities and inform/question the sub-committee of the College Employment Stability Committee about issues that are of particular concern. We are requesting that your provide us, by May 1st 2002, with an up to date resume so that we can have the most recent information when we attempt to find alternatives for you .... Anticipating that the Fire Prevention Programme was being phased out, the grievor had written in September, 2001 to Mr. Chris Warburton, the Acting Director of Human Resources, asking to having a teaching workload for the fall of 2002 assigned as soon as possible so that he could properly prepare the necessary course materials and lesson plans. No such assignments were made until June, 2002. On April 30, 2002 the grievor provided his resume to Luc Presseau, the Director of Human Resources. Thereafter he provided to the College a list of courses he had previously taught, a list of courses he was eligible to teach, and a list of course he was eligible to teach with additional training. The grievor testified that his last day of teaching in the Fire Prevention Program was in June, 2002. Towards the end of June he was given a SWF assigning him to teach two sections of math 8300 and two sections of math 8730, both of which were introductory math courses. He was also assigned 11.6 hours of preparation time per week. The grievor stated that he had no say in the selection of the courses, had not taught them 5 before, and they were not on the list he had given to the College of courses he could teach. The grievor testified that he began to review the mathematics text book and that he studied the course material until mid-August and covered chapters one to seven. He stated that he wanted to work his way through the book as a refresher. He stated that he needed some guidance and visited Mr. Galway, the acting manager to ask for it. In mid-August he received from the College a precise indication of what chapters in the math text would be taught each week. Classes started the last week in August. The grievor testified as to a number of difficulties and problems he encountered. There is a computer program called Blackboard which provides a link between teachers and students which he was not shown how to use. He was initially assigned seven teaching hours on Mondays. Not only was this a heavy workload, but Labour Day and Thanksgiving are statutory holidays falling on Mondays necessitating the re-scheduling of the classes, something most students did not like doing. The grievor expressed concerns about the Monday classes to his co-ordinator but was told there could be no changes during the first three weeks of the semester. After the first three weeks the grievor's Monday teaching load was reduced to five hours. The grievor stated that there were numerous changes to the time of his classes, and 6 since he was advised of these changes on Blackboard, and could not access the programme there was considerable confusion about the time and location of the classes. One of the math sections was held in a classroom that was too small, some students had to stand, some could not see the board. Eventually the class was moved to a more suitable room. The grievor stated that one of the classes was held in a lab. The first week the lab was under construction and the doors were locked and the class was cancelled. The second week the lab was still under construction and they had to search for another classroom. The third week, there was lab equipment set up for experiments so some students could not see the board. The grievor also testified as to class interruptions because of people touring through the lab while he was teaching. In October, 2002 Mr. Jan Boorgerd, the Chair of the Department, sat in on a math class for a full period. Mr. Boorgerd testified that the grievor made calculation errors which were significant, and that the grievor did not seem to recognize the errors or to have a command of the course material. Mr. Boorgerd brought his concerns to the attention of the grievor. In mid-November, 2002, the grievor received a SWF for the January-May, 2003 period. Also in November Professor H.G. Dworschak, the coordinator of the SAT mathematics 7 group, visited the grievor's classroom. They spoke after the class. Professor Dworschak showed the grievor how to go through some problems, suggested that he take some math courses, and that he visit other math classes to see how the professors delivered the material. Mr. Jack Wilson, a full-time faculty member since 1983 and the secretary of Local 415, testified that the grievor should not have been evaluated by Professor Dworschak as evaluations are to be done by a professor's immediate supervisor. He noted that Professor Dworschak recommended training for the grievor but no training was in fact provided by the College. Professor Wilson identified a number of other faculty members who had been provided training at considerable expense to the College. Professor Dworschak testified that he was approached by Mr. Boorgerd and asked if he would go into the grievor's class to observe and report. The grievor had no objection to his attending classes, as he said he had received no guidance or help and welcomed his participation. Professor Dworschak attended classes and noted decreased student attendance, a general malaise and a lack of bonding between the teacher and the students. He stated that the math course being taught provides the basic skills to go on to other courses. He attended several classes and noted that the grievor did not understand the basic concepts, and did not understand that what he was doing was incorrect. The 8 work on the board was incorrect, students had stopped attending classes. He concluded that the grievor needed a program to upgrade his skills and needed to observe other math teachers in the classroom. Professor Dworschak concluded that the grievor did not have the ability to teach the introductory math course. By memo dated November 28, 2002 he advised Mr. Boogerd as follows: Presently Dan teaches two courses (MAT 8300W & Mat8730) of two sections each at 4h/week/section. They are identical in content and can be characterized as equivalent to, principally, Ontario Grade 11 (academic) mathematics with, marginally, some Ontario Grade 12 (academic) mathematics material included. During the past two weeks, I have met privately with Dan and attended several of his classes. Based on my conversation with him and my classroom observations of his delivery, I would like to make the following observations: · Dan projects a pleasant image in his class, which tends to be quite bland and not at all forceful and/or assertive and/or self-assertive. He gives his student the understanding that they are all there to learn [mathematics] together - the students from the presentation of his material and correcting his numerous errors on the board, Dan from correcting his errors if he sees them or has them pointed out to him by the students. As a result, students perceive him as personally not strong, permissive to their classroom behaviour, and not knowledgeable in the material he presents. As a direct consequence of this classroom ambience, the students have little or no personal, academic and pedagogic confidence in him, either as a teacher who must maintain classroom discipline or as a lecturer who must accurately deliver the course material. · It is clear that the student's lack of confidence in Dan on personal, academic and pedagogic grounds creates on the part of the students a chronic condition of absenteeism, lack of personal respect to Dan in the classroom, excessive class breaks - lasting up to 45 minutes at a time - and a general malaise of academic floundering. What material has been covered? What has to be known? What are the various solution algorithms? What is important? What isn't? Unfortunately, this malaise is shared not only by the students, but also, to a great degree, by Dan himself. · Dan's lack of academic competence in the material he teaches had led to a lack of self confidence, which, in turn, has translated itself into a loss of classroom management. This, in turn, has degraded class attendance to the point where some classes have no more than 4 students in attendance. · Although Dan claims to have taken a number of advanced mathematic courses at university, notably in algebra and calculus, there is no evidence that he has remembered any of it. The Grade 11 material he presently teaches is totally beyond his own understanding. The kinds of errors he makes at the board during his delivery shows a present level of understanding of high school algebra not higher than Grade 9 or 10. · Should Dan become a productive member of the SAT Service mathematics group, he must absolutely without fail first take sufficient courses himself to become competent up to the level at which he is presently teaching. This proposal constitutes a viable short-term solution. I would like to point out, however, that learning the material he is to deliver subsequently does not in and by itself make him a competent lecturer of mathematics. I feel that in order to create a viable long-term solution, Dan needs to take/retake a number of introductory mathematics courses at university level. · My overall proposal for Dan's academic rehabilitation is therefore as follows: - That, as an immediate solution, Dan be given a complete release for VVO3 during which he can take a number of appropriate in-house courses 10 in mathematics. I am prepared to monitor his academic progress, and work with him to extend the course material he would be studying. In this manner, an academic background would be created from which he could then deliver his own courses in an academically and pedagogically viable .manner. - Than, as a long term solution, Dan be required to take [at his own expense] an additional number of first year university courses in mathematics to provide the necessary background and extended knowledge basis that will permit him to teach a variety of courses for which the SAT Service mathematics group is responsible. - That Dan visit a number of ongoing classes, given by several other competent lecturers of the SAT Service mathematics group, in order to gain some additional insights into the psycho-social dynamics of a classroom environment. Mr. Jan Boogerd, the Chair of English, Math & General Education, testified that in June, 2002 he was advised that the grievor was to be assigned to his department and was to receive a teaching load in mathematics. The courses assign~.~;:to the grievor wer~ introductory courses. After the grievor began te~ng the coU'r~'es,Mr. Devo~ j~!...~y, his assistant, advised that some studen~~pl,3ined that the grievor was' ~ot familiar with the material and could not help t~,e.m, pl~te the.,~ssignments. Mr. Boogerd met with the grievor and advised him.:~ student.'e~,"~rn~. The grievor became upset and said the information was inaccurate. Mr. Boogerd advised him to meet with the students. Thereafter, Mr. Boogerd received further complaints. He attended one of the grievor's classes. He observed a significant number of errors in completing solutions, and that the grievor did not know what the error was. He felt that the calculation errors were significant and problematic, and that the grievor did not have a command of the course material. He asked Professor Dworschak to help and he shared his concerns with Dean Uremovich. Mr. Boogerd stated that when the grievor began teaching he assumed he had the competence to teach math. He stated that the grievor was given a SWF six weeks prior to the beginning of the winter, 2003 semester, but when it was determined that the grievor did not have the ability to teach the course, the SWF was withdrawn. Evidence was presented by the two professors whose workload the grievor claimed to have the competence, skill, and experience to assume. Professor Charles Trites testified concerning his teaching load in 2002/03, and in particular the qualifications required to teach Construction Materials, Construction Surveying, and Water and Waste Water Technology. He stated that the Construction Materials I course concerned aggregate testing and involved theory and lab work, and that when he began teaching it took most of one year to get up to speed with the lab work, and that 12 was with the assistance of a lab technician, a position that is no longer filled at the College. The Construction Materials II course is a continuation of Construction Materials I and involves an examination of concrete and asphalt. The Construction Surveying course concerns applied measurements, using surveying equipment to provide measurements to guide constructors and contractors in the layout and erection of buildings. The Construction Surveying II course involves laying out road and highway curves and uses a degree of trigonometry in the calculations. He stated that he had considerable work experience in this area prior to teaching. The Water and Wastewater course involved storm sewer design and water treatment principles, and that he had worked in this area for three years prior to teaching. Professor Nellie Faycal testified concerning her teaching load in 2002-03. She stated that she taught the introductory mathematics course which reviewed the basics of trigonometry, vectors, basic algebra, factoring, fractions, quadratic equations, Iogorythims, exponentials, roots and radicals, and other basic math concepts. She also taught an on-line introductory math course which she had previously developed. Dean Morris Uremovich, the Dean of the School of Advanced Technology, testified that in the spring of 2002 he was asked to see if there was work for the grievor in his area. He reviewed the grievor's background, his resume, the courses he had taught at the College and his resume which indicated a background in engineering, so he assumed 13 he could teach mathematics. Dean Uremovich testified that, in the fall of 2002, he reviewed the workloads of both Professors Trites and Faycal to determine if the grievor had the skill and ability to teach their courses and concluded that he did not. In his opinion, the grievor did not have the skill and ability to teach the Construction Materials or Construction Surveying courses because they involved a knowledge of mathematics, which the grievor did not have, and the grievor's engineering experience was stale, the equipment had changed and the grievor had not undated his skills. With respect to the Water and Waste Water course he also concluded that the grievor had no recent experience, and that his knowledge was not current. With respect to the grievor's ability to teach the mathematics courses taught by Ms Faycal, Dean Uremovich stated that he was aware of student complaints about the grievor's teaching the math courses and had seen Professor Dworschak's memo and had concluded that the grievor did not have the requisite skill or ability to teach introductory mathematics because he did not have a solid understanding of the course material. In response to questions from the Union, Dean Uremovich stated that the workload that the grievor was given in the fall of 2002 had been work that would have otherwise been assigned to part-time faculty. He acknowledged that failure rate in the math classes 14 taught by the grievor were in line with the failure rates in classes taught by other faculty members. He stated that both himself and Mr. Boorgerd were involved in the decision to revoke the grievor's SWF for the winter 2003 semester. He stated that in examining the courses taught by Professors Trites and Faycal he determined that the grievor would need training to teach the courses and there was no requirement in the collective agreement that such training be offered. DECISION The Union submitted that the grievor was set up to fail. His efforts to find alternate work in 2001 were not responded to by the College. The courses identified by the grievor as being able to teach were not considered by the Dean until six or seven months later. He was given a late SWF. He was not advised as to the precise course content until August. No extra time was allotted to cover the material. He had seven teaching hours on Monday and this was not reduced until two statutory holidays had passed. One classroom was not big enough. Another was inadequate. In its submission the grievor was given no assistance by the College. The College did not follow Professor Dworschak's suggestions for improvement. When problems occurred the College did not conduct a proper review. 15 In the College's submission there is no requirement in the collective agreement to provide training to displaced employees. In order to bump a more junior employee the displacing employee must have the competence, skill, and experience to fulfill the requirements of the positions concerned without training or assistance. Considering that the grievor had not worked in the field for 12 years except for brief summer projects, and considering that he was not capable of teaching the basic math course, it was reasonable for the College to conclude that the grievor did not have the present skill and ability to teach the courses of either Professors Trites or Faycal. The College referred to a number of arbitral decisions indicating that, in order to bump a junior employee under the provisions of article 27, the grievor must have the present skill and ability to teach the courses. While a person might be entitled to a brief familiarization period, they were not entitled to training, and must be in a position to assume the teaching assignments almost immediately. The question of the degree of skill and ability that a senior employee must possess in order to displace a junior employee under the provisions of article 27 of the collective agreement has been considered by a number of arbitrators. In Fanshawe College and Ontado Public Employees Union, Grievance of Leslie Dobos OPSEU #96F846, unreported, June 4, 1998, K.M. Burkett, the Board states at pp. 9-10: Article 27.06 does not provide for the retraining of the senior affected 16 employee. Rather, the senior affected employee must establish his/her immediate competence to teach the necessary course. This requirement has been aptly and fairly described by arbitrator Swan in Re: Seneca College and OPSEU, Morgulis grievance, August 19, 1994 as follows: As we read the collective agreement, it requires that the displacing Professor be qualified immediately to perform the requirements of the position, and that individual may not claim, for example, time for retraining or re-qualifying prior to taking up the duties. But the words of the collective agreement must be understood in the context of teaching in a College, where there is normally a summer break to prepare for classes beginning again in September, and where similar breaks occur between terms at other occasions in the year. Thero is also a provision for preparation time, and the collective agreement must be understood in light of the availability of such preparation periods to allow the Professor to brush up on course which he or she has not taught for a while. The issue therefore is whether it has been demonstrated to this Board of Arbitration that the grievor had the requisite skill and ability to teach the courses taught by either Ms Faycal or Mr. without a period of training, and after careful refection I have determined that he did not. Ms Faycal's workload consisted of teaching introductory mathematics and an on-line course of introductory mathematics. The grievor admitted that he did not have any prior experience teaching on-line courses. Of greater significance however, is the evidence of Professor Dworschak that the grievor was having considerable difficulty comprehending and teaching the introductory mathematics course, that the material was beyond his understanding, that he be relieved from his teaching duties, that he 17 take some mathematics courses at the College, and that he take some introductory first year university math courses. The grievor, in his evidence, noted some of the difficulties concerning teaching the introductory math courses such as getting his SWF late, the late notice of the precise materials to be taught, having seven hours of teaching on Monday, the inadequate classrooms, and the lack of support from the College. In his evidence however, the grievor did not assert that he had the requisite skill and ability to teach the course without some considerable training as suggested by Professor Dworschak. This Board accepts Dean Uremovich's assessment that the grievor did not have the competence, skill, and experience to fulfill the teaching assignment of Professor Faycal. With respect to the teaching load of Professor Trites, the evidence was that the courses involved a certain amount of mathematics, and that the grievor's experience in the surveying area was a considerable number of years ago. In Re Niagara College of Applied Arts & Technology and O. P S.E.U. 1989 C.L.A.S.J. Lexis 31303, H.D. Brown, in dealing with the grievor's allegation that he could displace a junior teacher the Board noted at p. 11: ...The Board must be satisfied on an objective basis that the position claimed could be fulfilled by the grievor to teach the course contents required by the College. To infer abilities from subjective statements of 18 competence in areas or courses where there was practical unfamiliarity would be mere speculation by the board which is not sufficient to discharge the grievor's responsibility in the application of this article. The employee seeking to displace another employee in a lay-off must establish that he has the competence, skill, and experience to perform the requirements of the position at that time. The board concludes that the grievor did not satisfy this onus. Similarly in St. Clair College and Ontario Public Service Employees Union Grievance of K. Barei OPSEU File No. 88C427, unreported October 17, 1989, D.D. Carter, the Board notes at p. 6: In cases such as this a board of arbitration must decide whether a grievor has established on the balance of probabilities that she has the competence, skill, and experience to fulfill the requirements of the position concerned. On the evidence presented at the hearing we have no reason to doubt that the grievor was other than a competent and skilful teacher who if given sufficient time could have fulfilled the requirements of the position. Nevertheless, we are not convinced that at the time of her lay-off the grievor had the required experience to fulfill the requirements of the position at the time it was being claimed. This Board appreciates that the grievor and the Union are concerned that an employee with considerable seniority is laid off while more junior employees continue in employment, and are also concerned that, in its view, the College did not take adequate steps to assist the grievor to secure alternate work for which he was suited and qualified. Even if such perceptions are accepted as true, it is not within the purview of this arbitration proceeding to grant a remedy to the grievor for such alleged actions or inactions by the College. The grievance alleges a violation of the provisions of the 19 collective agreement in that the College has assigned courses, that the grievor had the skill and ability to teach, to individuals who have less seniority than the grievor. After considering all of the evidence, this Board has determined that, while the grievor has an impressive resume, and lengthy teaching experience, he did not have the competence, skill, or experience to teach the courses of either of the individuals identified in the grievance. Accordingly, the grievance is dismissed. Dated at Maberly, Ontario this 10"~ day of February, 2004 David K.L. Starkman.