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