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HomeMy WebLinkAboutAdams 95-01-3194D017 ADAMS ET AL VS CAMBRIAN COLLEGE IN THE MATTER OF AN ARBITRATION BETWEEN: CAMBRIAN COLLEGE AND: ONTARIO PUBLIC SERVICE EMPLOYEES IN THE MATTER OF GRIEVANCE OF: ADAMS ET AL OPSEU #S 94D017 - 94D157 BOARD OF ARBITRATION: Kevin M. Burkett- Chairperson Peter Hetz- Employer Nominee Jon McManus- Union Nominee APPEARANCES FOR THE EMPLOYER: D. K. Gray- Counsel R. Hurly- Director, Human Resources APPEARANCES FOR THE UNION: Susan Philpott- Counsel John Closs- Chief Steward A Hearing in this matter was held in SUDBURY, Ontario on October 25, 1994 - After a period of consultation unpaid leave days were unilaterally scheduled for March break 1993 and for other non-teaching days for those who did not arrive at an agreement with the college as to when these days of unpaid leave would be taken. Those who did agree as to when these days of unpaid leave would occur did so without prejudice to the union claim that these days of unpaid leave should have occurred on teaching days. - Teachers perform a variety of functions on non-teaching days such as, marketing, committee activities, interviewing students, general administrative functions, purchasing and correspondence. - The affected professors were never told specifically what work not to perform as a result of having six unpaid leave days imposed. - The college does not expect professors to work for nothing and, therefore, communicated to each professor that he/she would be expected to reduce his/her workload to reflect the six days of unpaid leave. The college did require that all teaching assignments be carried out. - With the exception of teaching contact hours professors are self-assigning in their work. 3. The union does not seek individual remedies but rather a declaration that in requiring professors to take days of unpaid leave on days when there is no teaching contact, the college acted in breach of both the Act and the collective agreement. 4. Part VII of the Act, which applies whe re there is no sectoral or local agreements, stipulates in Sections 25(1) and 27(1) that; 25.- (1) If necessary to meet the expenditure reduction target established by the Minister, an employer may require employees to take unpaid leaves of absence to a maximum of twelve days or their equivalent in each of the following periods: 1. June 14, 1993 to March 31, 1994. 2. April 1, 1994 to March 31, 1995 3. April 1, 1995 to March 31, 1996 27.-(1) If the fixing of compens ation under section 24 does not result in an employer achieving its expenditure reduction target, the employer shall, (a) make all reasonable efforts to achieve its target by utilizing unpaid leaves of absence under section 25 or, if applicable, special leaves under section 26 before taking other actions available to it at law; and (b) develop a program setting out the manner in which these leaves are to be implemented. The act goes on, in establishing the criteria for the program, to stipulate that; 27.2 The program shall be developed consistent with the following criteria: (3) The program will assist the employer in achieving the expenditure reduction target established by the Minister for the employer. (4) The program will be fair and equitable in its application to all employees. (5) The regulation made under the Social Contract Act defines an "Unpaid Leave" as follows; Unpaid Leave In Part VII of the Act, "unpaid leave" and "unpaid leave of absence" mean a leave of absence without pay that is, (a) the whole of an employee's regular work day; or (b) half of an employee's regular work day, if the half day of leave begins at the beginning of the employee's regular work day or ends at the end of the employee's regular work day. 5. The relevant provisions of the collective agreement read; ARTICLE 11 WORKLOAD 11.01 A Each teacher shall have a workload that adheres to the provisions of this Article. 11.01 B 1 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 11.01 B 2 A "teaching contact hour" is a College scheduled teaching hour assigned to the teacher by the College. 11.01 D 1 Weekly hours for preparation shall be attributed to the teacher in accordance with the following formula: RATIO OF ASSIGNED TEACHING CONTACT HOURS TO TYPE OF COURSE ATTRIBUTED HOURS FOR PREPARATION New 1 : 1.10 Established A 1 : 0.85 Established B 1 : 0.60 Repeat A 1 : 0.45 Repeat B 1 : 0.35 Special A as indicated below Special B as indicated below 11.01 E 1 Weekly hours for evaluation and feedback in a course shall be attributed to a teacher in accordance with the following formula: RATIO OF ASSIGNED TEACHING CONTACT HOURS TO ATTRIBUTED HOURS FOR EVALUATION AND FEEDBACK Essay or Project Routine or In-Process Assisted 1 :0.030 1 :0.015 1 :0.5092 per student per student per student 11.01 F Complementary functions appropriate to the professional role of th e teacher may be assigned to a teacher by the College. Hours for such functions shall be attributed on an hour for hour basis. An allowance of a minimum of five hours of the 44 hour maximum weekly total workload shall be attributed as follows: three hours for routine out-of-class assistance to individual students two hours for normal administrative tasks. 11.08 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. The class definition for a "Professor", which forms part of the collective agreement, reads: 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. This includes: a) The design/revision/updating of courses, including - consulting with program and course directors and other faculty members, advisory committees, accrediting agencies, potential employers and students; - defining course objectives and evaluating and validating these objectives; - specifying or approving learning approaches, necessary resources, etc.; - developing individualized instruction and multi-media presentations where applicable; - selecting or approving textbooks and learning materials. b) The teaching of assigned courses including: - ensuring student awareness of course objectives, approach and evaluation techniques. - carrying out regularly scheduled instruction; - tutoring and academic counselling of students - providing a learning environment which makes effective use of available resources, work experience and field trips; - evaluating student progress/achievement and assuming responsibility for the overall assessment of the student's work within assigned courses. c) The provision of academic leadership, including: - providing guidance to Instructors relative to the Instructors' teaching assignments; - participating in the work of curriculum and other consultative committees as requested. In addition, the Professor may, from time to time, be called upon to contribute to other areas ancillary to the role of Professor, such as student recruitment and selection, time-tabling, facility design, professional development, student employment, and control of supplies and equipment. 6. The positions taken by the respective parties stand in stark contrast to one another. The union argument, simply put, is that all aspects of a professor's work flow from and are directly related to teaching contact hours, so that absent any reduction in teaching contact hours there cannot be a reduction in work. It is argued that if there is no reduction in work the effect of requiring the days of unpaid leave to be taken on nonteaching days is to require the affected professors to perform the same work in fewer days and, therefore, to work for nothing; in contravention of both the Social Contract Act and the collective agreement. Trent University and C.U.E.W. Local 8 (May 16, 1994) Starkman (unreported) is cited by the union in support of its position. 7. The college position, also simply put, is that the days on which unpaid leave was imposed were paid days with duties to be performed and that the college has lost the benefit of the work that would otherwise have been performed on these days. It is argued that the "fail safe" mechanism and the statutorily sanctioned use of "unpaid leave" must be considered in light of the overriding statutory objective of "expenditure reduction". It is argued that against this backdrop and in light of the definition of unpaid leave as leave without pay on an "employees" regular day of work", the non-teaching contact days that were imposed as unpaid leave days conformed to the statute. The college points out that under this collective agreement there are significant periods of time for which a professor is paid, although not teaching. Reference is made to the number of hours assigned to teaching and attributed to teaching related activities relative to the number of hours for which a teacher is paid under Article 11. It is argued that the complimentary functions referred to in article 11.01 F are not directly related and/or attributed on the basis of teaching contact hours and, so also, the functions listed under paragraph (c) of the class definition and in the concluding paragraph of the class definition are not directly related to teaching. The college submits that these were regular days of work for which the affected professors would otherwise have been paid and, apart from the grossly unmanageable task of determining on a case by case basis whether six days of activities were being eliminated, asks us to find that it lost the benefit of whatever activities would have been performed on these six days. The college distinguishes the Trent University Award (Supra) on the basis that that collective agreement covered part time teachers who, in contrast to the grievors in this case, were only paid for teaching days, so that, in contrast to this case, the requirement to have pay deducted for non-teaching days did not conform to the statutory definition of "unpaid leave". The college asks us to dismiss the grievance on the basis that the unpaid leaves that were imposed in this case conformed to the statutory definition. 8. The purpose of the Social Contract Act is to reduce public expenditures in a manner that minimizes long term lay off and job loss. The primary means of accomplishing this objective is through a freeze on direct compensation and by unpaid leaves of absence which, by definition, are to be taken on an employees "regular work day". We concur with the conclusion reached by Arbitrator Starkman in re Trent University (supra) that; If an employer were permitted to schedule unpaid leave days that an employee was not otherwise scheduled to work, then an employer could schedule these days on weekends, statutory holidays, regularly scheduled vacations or plant shutdowns with the result that employees would receive less money on an annual basis, but would still be required to do the same amount of work. In my opinion, by giving an employer the power to force employees to take unpaid leaves of absence, it was not the intention of the legislature to allow employers to continue business as usual. Rather, it was contemplated that there would be some reduction in the amount of work being performed by employees commensurate with the number of unpaid leave days such employees were required to take. Thus while employees would receive less money, less work would be performed. This was the trade- off for allowing employers to meet expenditure reduction targets by imposing unpaid leave days on employees many of whom may have previously negotiated rates of pay set out in collective bargaining agreements. Accordingly, if, as the union argues in this case, all duties and responsibilities of professors under this collective agreement are directly related to teaching, some reduction in teaching contact hours would be required in order to provide for a reduction in work commensurate with the reduction in pay caused by the forced taking of unpaid leaves. 9. However, there is a fundamental flaw in the argu ment advanced by the union. It is clear on a reading of the class definition and article 11 that there are a great many duties and responsibilities that are not directly related or attributed on the basis of teaching contact hours. I refer specifically to the "complementary functions" for which an allowance of a minimum of five hours of the 44 hour maximum weekly total workload is attributed under article 11.01 F on the basis of three hours for routine out of class assistance to individual students and two hours for normal administrative tasks. I refer as well to the provision in the class definition for the "design, revision and updating of courses" and "participation in the work of curriculum and other consultative committees as requested" and the reference to "student recruitment and selection; time tabling, facility design, professional development, student employment and control of supplies and equipment." None of these tasks are directly related or attributed on the basis of teaching contact hours. Accordingly, it cannot be said that all of a professor's duties and responsibilities flow from or are directly related to teaching contact hours and, therefore, by necessary implication, it cannot be said, in the abstract, that any unpaid leave period that does not involve a reduction in teaching contact hours results in a professor performing the same work for less compensation; a result that we have found cannot obtain under the Social Contract Act. 10. At the practical level, th e difficulty with this case is that professors perform a mix of direct teaching related functions and non-direct teaching related functions, that they are self assigning in their work and that the college did not designate the specific functions that were to be forgone by reason of there being six days of unpaid leave. Where, in these circumstances, six days of unpaid leave are imposed without a reduction in teaching contact hours or direct teaching related duties, it may or may not be possible to eliminate six days of non- direct teaching related duties within the six designated unpaid leave days. The designation of six non-teaching days as the days of unpaid leave, without specifying the duties and responsibilities that are to be foregone, does not, therefore, in the circumstances of this working relationship, ensure that there is a reduction in work performed commensurate with the forced reduction in pay. The equivalent of six days of non-direct teaching related functions must be eliminated in order to bring about a commensurate reduction in work. Absent such a reduction in non-direct teaching related functions the undertaking of the college that it does not intend to have work performed for nothing is left unfulfilled and, more importantly, the spirit and intent of the Social Contract Act is violated. Accordingly, it is only if it is assumed that the equivalent of six days of non-direct teaching related work have been or will be eliminated that a finding can be made that the imposition of six days of unpaid leave without a reduction in teaching contact hours, is santioned. Having regard to both the undertaking of the college and to the self assigning nature of the working relationship we are prepared to make the assumption in this case and with it the tentative finding that there has been no breach of the collective agreement. However, because of the tentative nature of our finding we remain seized should any dispute arise as to whether there has or has not been a reduction in non-direct teaching related duties commensurate with the reduction in pay caused by the imposition of six days of unpaid leave. DATED in Toronto on this 31st day of January 1995 Kevin M. Burkett I Dissent "Peter Hetz" Peter Hertz I Dissent "John McManus" John McManus PETER M. HETZ 214 Elderwood Trail Oakville, Ontario L6H 5W2 Dissent Award I agree with the Chairman's conclusion that the College did not breach the collective agreement However, I cannot agree with the suggestion of the Chairman that the spirit and intent of the Social Contract Act may have been violated absent a reduction in non-direct teaching related functions equivalent to the reduction in pay experienced by the professors. The Union claimed that the decision of the College to require professors to take unpaid leaves of absence on days that they would not otherwise be teaching constitutes a breach of the Social Contract Act and the collective agreement. This claim is easily nullified by reference to Regulation 590/93, Section 5 which states: 'In Part Vii of the Act, "unpaid leave" and "unpaid leave of absence" mean a leave of absence without pay that is, (a) the whole of an employee's regular work day, or (b) half of an employee's regular work day, if the half day of leave begins at the beginning of the employee's regular work day or ends at the end of the employee's regular work day. O Reg. 590/93, s.5. The Union, in its In my respectful view, once it is demonstrated that an unpaid leave day was scheduled on a regular work day as contemplated in the Regulations, that is all that is required. Since the unpaid leave days were clearly scheduled on regular work days in this particular case, no further inquiry is necessary and the grievance should be dismissed simply on that basis. Based on the submissions of the parties, it was agreed that professors enjoy a great degree of latitude in how, when and where they conduct their work. The College does not interfere in this scheduling. Professors are self-assigning with respect to their work, save and except, actual teaching contact hours. Consequently, it seems normal that the College would not have attempted to identify the work which professors were not to do in order to reduce their workloads but would have relied on the professors to do so. To have done otherwise would have undermined the professionalism of the existing relationship. PETER M. HETZ 214 Elderwood Trail Oakville, Ontario L5H 5W2 For the College to have identified the reduction for each professor would not only have been illogical but also highly impractical. The College clearly left it to the professors to determine what work would not be done. Consequently, if any professor chose not to reduce his/her work, then so be it. The College should not now be held liable for any professor's decision not to follow the College's direction. I believe that there is an obvious contradiction in requesting the professors, who may not have reduced their workload, to now reduce their workload. That is exactly what the College had directed them to do in the first place. The College did not specifically identify what tasks were not to be performed by the professors. The College left that decision entirely to each professor. However, this award indicates that the College should have specifically identified the work reductions for each professor. Yet, this award does exactly what the College did, that is, ask the professors to reduce their workload without identifying specifically what work should not be done. In its opening statement, the Union asked the Board to find that the College had contravened the collective agreement and the Social Contract Act. The Union indicated that it was not seeking any individual remedies. It does not seem logical for this Board to implement a remedy which neither part requested. This award goes beyond what the parties asked this Board to determine and will create major difficulties in implementation. It puts the College in an untenable situation because of the self- assigning relationship enjoyed by the professors. If every professor were to now claim that he/she did not reduce his/her workload when directed by the College to do so, the college would be in no position to challenge any such claim. I believe that it is fundamentally inappropriate for this Board to give professors another chance to reduce their workload. For these reasons, I cannot concur with the award. DISSENT I dissent. In my view, the Social Contract Act contemplates a reduction in pay and a consequent reduction in work. This is the "no pay, no work" concept which has been adopted by a number of arbitrators and adjudicators across the province. With respect to Community College Professors, there is an elaborate scheme of attributed hours contained in the Collective Agreement. All the work that the Professors do flows from the number of teaching contact hours. First, there are the teaching contact hours themselves, then there are attributed hours for preparation, evaluation and feedback, and for complementary functions. Hours for preparation and evaluation and feedback are attributed on the basis of a mathematical formula whereas complementary functions are attributed by means of a minimum five hour allowance per article 11.01 F of the Collective Agreement. To say, as the majority does, that "there are a great many duties and responsibilities that are not directly related or attributed on the basis of teaching contact hours" is to fundamentally misunderstand the work of a Professor at a Community College. Clearly, rendering out of class assistance to students must, by definition, be related to teaching contact hours. Presumably the more classes taught and the more students taught, the more likely the teacher is going to be asked for assistance by his or her students. The other "non-teaching" duties highlighted by the majority are also related to teaching contact hours. Presumably, normal administrative functions must be related to the Professor's teaching duties since that is what he or she does for a living. If it is a normal function to spend an hour photocopying handouts for his or her students, how can it be said that this "administrative function" is not teaching related. The other major problem with the majority's award is it adopts the "no pay, no work" principle, acknowledges that some professors may have been forced to perform teaching related duties without being paid for them, finds that the College should have directed the professors not to do certain specified tasks in light of the Social Contract Act requirement for 6 unpaid days off and then says that Professors are entitled to eliminate the equivalent of six unpaid leave days worth of non-teaching duties. In my view, the college did not act in accordance with the Act or the Collective Agreement. The only way to guarantee that Professors are not required to do the same amount of work for less pay is to reduce the teaching contact hours in such a fashion so as to come up with six days unpaid leave days in total ( ie. the teaching contact hours, attributed hours for preparation, evaluation and feedback, and complimentary functions would all be reduced to equal six days). Alternatively, since the college neglected to direct the Professors as to which non-teaching functions were not to be performed due to the Social Contract, it is the College and not the Professors who should have to bear the burden of their mistake. The reduction of teaching contact hours (and attributed functions) is the only way that the Social Contract's principle of "no pay and no work" can be maintained. Any other method (and this included the method proposed by the majority) assumes that if the work is not attributed directly in the Collective Agreement it isn't valuable or related to teaching. Surely meeting with students is an integral part of teaching, as is curriculum development. Therefore, based on the failure of the College to reduce teaching contact hours to the equivalent of six days (including attributed functions) or to specifically direct the grievors as to which tasks were not to be performed, I would have allowed the grievances and ordered the College to compensate the grievors with six days pay. Jon McManus