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HomeMy WebLinkAboutUnion 96-04-1895A045 FANSHAWE VS OPSEU IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION - and - FANSHAWE COLLEGE Re Union Grievance - OPSEU No. 95A045 Before:R. O. MacDowell- Chairman Sherril Murray- Union Nominee Rene St. Onge- Employer Nominee Appearances: For the Union: Elizabeth M. Mitchell, Counsel For the Employer: Barry J. Brown, Counsel Hearing held in London on April 7, 1995 A W A R D WHAT THIS CASE IS ABOUT This is a "policy grievance" filed by the union. The question it raises can be stated quite simply: can the College schedule a professor to teach beyond the 36 and 38-week limits prescribed in Article 11.01 B 1 of the collective agreement; and, if the College can schedule in this way, under what circumstances can such assignments be made. Article 11.01 B 1 reads as follows: 11.01 B 1 Total workload assigned and attributed by the College to a teacher shall not exceed 44 hours in any week f or up to 36 weeks in which there are teaching contact hours f or 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 postsecondary 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. The College maintains that the number of teaching weeks may be extended beyond the limits mentioned in Article 11.01 (36 weeks or 38 weeks) provided that the professor agrees and is paid at a premium rate for the extra weeks' work. That is what the College has done in this case. It has obtained the consent of the Professors involved, scheduled extra weeks, and paid premium rates for the extra work. The union asserts that the number of teaching weeks set out in Article 11.01 B 1 cannot be exceeded without the consent of the union, either generally or pursuant to Article 11.01 M of the agreement (see below). In the union's submission, the assignments under review (also see below) contravene Article 11.01 B 1, and cannot therefore be maintained. The fact that the professors may have consented is irrelevant. Article 11.01 B 1 appears in a constellation of workload clauses which should be read together and considered as a whole: 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 postsecondary 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 H 1 The College shall allow each teacher at least ten working days of professional development in each academic year. 11.01 H 2 Unless otherwise agreed between the teacher and the supervisor, the allowance of ten days shall include one period of at least five consecutive working days for professional development. 11.01 H 3 The arrangements for such professional development shall be made following discussion between the supervisor and the teacher subject to agreement between the supervisor and the teacher, and such agreement shall not be unreasonably withheld. 11.01 I Teaching contact hours for a teacher in post-secondary programs shall not exceed 18 in any week. Teaching contact hours for a teacher not in postsecondary programs shall not exceed 20 in any week. 11.01 J 1 Notwithstanding the above, overtime worked by a teacher shall not exceed one teaching contact hour in any one week or three total workload hours in any one week and shall be voluntary. 11.01 J 2 Such teaching contact hour agreed to in excess of the respective weekly teaching contact hour maximum shall be compensated at the rate of 0.1% of annual salary. Such workload hours agreed to in excess of the 44 hour weekly workload maximum shall be compensated at the rate of 0.1% of annual salary. Such overtime payments shall be for the greater amount--but shall not be pyramided. 11.01 J 3 All such voluntary overtime agreements, which shall not be unreasonably withheld, shall be set out in writing on the SWF for that period by the College and filed with the teacher and the Union Local within ten days. 11.01 J 4 Probationary teachers shall not be assigned teaching contact hours or total workload hours in excess of the maxima under any circumstances. 11.01 K 1 Contact days (being days in which one or more teaching contact hours are assigned) shall not exceed 180 contact days per academic year for a teacher in post-secondary programs or 190 contact days per academic year for a teacher not in post-secondary programs. 11.01 R 2 Weekly contact hours assigned to a teacher by the College may be scheduled into fewer than five contact days and such compressed schedule shall be deemed to be five contact days. 11.01 X 3 Teaching contact hours shall not exceed 648 teaching contact hours per academic year for a teacher in post-secondary programs or 760 teaching contact hours per academic year for a teacher not in post-secondary programs. 11.01 K 4 Compensation for work in excess of the maxima set out above shall be paid by the College to the teacher on the basis of: (i) 1/180 or 1/190 respectively of the teacher's annual salary for each contact day in excess of the 180 or 190 contact day annual maximum; (ii) 0.1% of the teacher's annual salary for each teaching contact hour in excess of the 648 or 760 teaching contact hour annual maximum. Such compensation shall be for the greatest amount and shall not be pyramided under this clause or under 11.01 J. 11.01 L 3 A teacher shall not normally be assigned work on calendar Saturdays or Sundays. Where a teacher is assigned to work on a Saturday or Sunday, the teacher shall be credited with one and one-half times the credit hours normally given for hours so assigned and attributed. 11.01 M Where a Union Local and a College agree in writing on terms governing workload assignments at the College, such agreements shall be binding on the College, the Union Local and the teachers and timetables shall be established in accordance with such local agreements. 11.03 The academic year shall be ten months in duration and shall, to the extent it be feasible in the several colleges to do so, be from September 1 to the following June 30. The academic year shall in any event permit year-round operation and where a College determines the needs of any program otherwise, then the scheduling of a teacher in one or both of the months of July and August shall be on a consent or rotational basis. (emphasis added) For completeness, we should also mention Article 32.04 D which governs this Board's jurisdiction: 32.04 D The arbitration board shall not be authorized to alter, modify or amend any part of the terms of this Agreement nor to make any decision inconsistent therewith, nor to deal with any matter that is not a proper matter for grievance under this Agreement. As will be seen, the bargaining parties have established an elaborate framework regulating a professor's workload, which includes detailed limits and specified. exceptions. This case is about one element of that framework: the number of "teaching weeks". The issue is whether the number of assigned teaching weeks is "flexible", and if so, what preconditions must be met before the limit may be exceeded. The parties are agreed that the Board is properly constituted, and that it has jurisdiction to hear and determine the issues put before it. There was apparently some earlier litigation between the parties concerning the jurisdiction of a regular arbitration board to hear a case such as this at the instance of the union (i.e. as a policy grievance). However, the Board was advised that that question was resolved in the union's favour (the Court decision was not put before us) and is no longer an issue between the parties. Nor does the College raise any question of estoppel, or seek to refer to past practice as an aid to interpretation. Both parties confined their arguments to the language of the agreement and what it meant - although, of course, each party asserted a different meaning. Finally, it is important to emphasize that the only question before us is whether or in what circumstances certain extended teaching assignments may be scheduled. We are not called upon to determine definitively how a professor's premium pay should be calculated if extra weeks can be assigned. The background is not really in dispute. BACKGROUND The scheduling "issue" that generated the union's grievance arises in the College's electrical/electronics technology division, and on the evidence before us, is confined to that division. The issue has not surfaced in any other department or division, nor does it affect all members of the electrical/electronics technology division. It involves a small number of individuals who from time to time accept voluntary teaching assignments beyond the limits prescribed in Article 11.01 B 1. Briefly put, the division's scheduling problem is this: in order to meet an irregular demand for teaching services from "customers" in the community, the division considers it advisable to schedule professors to work beyond the weekly limit mentioned in the collective agreement. That decision is taken with the consent of the professors concerned, is justifiable on pedagogical grounds, and avoids either splitting courses or using part-timers. It provides regular staff members with overtime opportunities which they have willingly accepted. But it also raises the interpretation question to which we have already referred. Nick Prokos is the Chair of the electrical/ electronics technology division, a position that he has occupied for 24 years. Mr. Prokos explained that, from time to time, the College enters into agreements with outside agencies to provide teaching services similar in content to those available during the regular school program. For example, an organization such as the Ontario Training and Development Board ("OTAB") may contract with the school to provide training for the unemployed; moreover, there are other similar agencies that seek occupational upgrading for whatever target group falls within the outside purchaser's mandate. Under this general umbrella, the school has agreed to provide special apprenticeship or remedial programs, "electricians' occupational updating" for unemployed electricians, an electrical preparation program for women seeking to enter the electrical trade, and so on. The problem is that the outside purchaser usually wants these services to be delivered in accordance with its own timetable and training regimen, which may not be contiguous with the course sequence in the school year. For example: the purchaser may wish to intersperse teaching modules with other kinds of training, with internship arrangements, or with on-the-job experience. The "customer" has its own timetable which the College must accommodate if it wants "the business"; and, of course, in these days of downsizing and financial constraints, the College is anxious to provide these services and tap an alternative source of revenue. If it does not do so, a private training agency might get the customer's business. But the dilemma for the school is obvious: how does it meet this community demand with available resources and within whatever restrictions may be imposed by the collective agreement. Mr. Prokos testified that his particular department is understaffed because of the no-hire/no-layoff agreement which the College concluded with the union some time ago; however, despite-this difficulty, he attempts to make maximum utilization of existing full-time staff, and, at the same time, make overtime opportunities available to the individuals who want them, rather than using part-time or sessional personnel. This involves using existing faculty members up to the weekly limit prescribed in Article 11.01 B, but, in addition, scheduling faculty members beyond that limit, where it seems sensible to do so and the individuals in question agree. In Mr. Prokos' opinion, it is undesirable on both administrative and pedagogical grounds to split courses between two or more professors, because course-sharing generates problems of continuity and co- ordination, and creates a situation in which students have to get used to new teachers part-way through the course. Nor do the individual professors welcome course-sharing of this kind. The professors prefer to teach an entire course, and are fully familiar with apprenticeship training because they have been doing it for years. Mr. Prokos testified that there is intense consultation with the teaching staff before these overload assignments are made; and, on the evidence before us, none of the professors concerned seems to be complaining about the existence or distribution of these extended work assignments. Mr. Prokos concedes that in other departments professors may split courses to avoid overload issues, and his department, like others, does hire sessionals and part-timers to fill in gaps in the schedule. However, it is unusual in this department for a professor to pick up the tag end of a course. Mr. Prokos testified that he prefers to use regular staff rather than "outsiders" or part-timers, and so far, his regular staff members have been prepared to accommodate that wish and take advantage of the additional work opportunities and income. But the result is that, from tire to time, various professors will have teaching assignments that extend 3-4 weeks beyond the limit prescribed in Article 11.01 B. We should note that the board was told that none of the teaching assignments under review has extended into the July-August period following the regular school year. That kind of extension certainly seems to be a possibility based upon the situation outlined by Mr. Prokos. But we were told that none of the particular assignments that gave rise to this grievance extended into the summer period. This is not so clear from some of the SWFs filed by the parties to illustrate the "problem" that gave rise to this grievance. Several of those SWFs do appear to contemplate work beyond the end of the regular school year. And, of course, an overload into the summer might trigger Article 11.03, not just Article 11.01 B 1. Nevertheless, we have analyzed the case on the basis that was put to us: overload assignments in excess of the 11.01 B 1 limit during the regular academic year. We should also note that there is no evidence or claim that anyone has been unfairly denied a work opportunity because of the arrangement that Mr. Prokos described. No one within the division is complaining about any pressure to work overtime, or, conversely, any unfair distribution of overtime opportunities. Nor is there any evidence that anyone in any other department is prejudiced in any way - probably because the professors in each department have distinct skills which are not easily transferable from one department to another. In other words, the work opportunities available in one department are not necessarily transferable to another. No doubt it may seem troubling that professors in one division are working extra hours, while professors in another department may face reduced hours or layoff. But that arises from the different demands on each department, and it is not at all obvious that strict enforcement of Article 11.01 B 1 in this department would change that situation very much. It might only divert the work to private sector training providers, or to part-time teachers. Discussion and Decision Both counsel took the board carefully through each of the clauses set out above, emphasizing the importance of reading the agreement as a whole, and stressing the particular linguistic features which supported their client's interpretation of Article 11. We are grateful for counsel's assistance in this regard. However, in the result, our interpretation of Article 11 reflects a synthesis of both parties' arguments. The opening words of Article 11.01 A make it perfectly plain that the workload scheme that follows is "mandatory" - in the sense that the College must adhere to it unless the situation falls into one of the specified exceptions. Article 11 is quite unlike the kind of workload clause that one commonly finds in an industrial collective agreement, where there is a "normal work week" that the employer is able to vary in "abnormal" situations, in the exercise of its "reserved management rights". Article 11 is framed quite differently. It provides a strict regimen from which there are only limited delineated exceptions. This is not to say that the scheme is completely rigid. There are a number of specific exceptions and, more significantly, Article 11.05 contemplates that any of its elements of the scheme may be varied by local agreement, to meet local difficulties. Indeed, the only evidence before us is that Article 11.05 has in fact been used flexibly in the electrical/electronics division to meet an unexpected problem that arose in that department. The point is: there are specific exceptions to the prescribed workload ceilings, and Article 11.05 provides a general safety valve should local exigencies demand it. But it is a safety valve that is negotiated, not automatic. We shall have more to say about Article 11.05 below. First, it is necessary to examine the particular elements of the contractual scheme, to see whether the impugned assignments are permitted - either explicitly, or by necessary implication. Article 11.01 B 1 includes the words "shall not exceed" which apply to both the number of hours in the teaching week (44), and the number of teaching weeks in the academic year (36 or 38). In both cases, the language creates a ceiling and contemplates that the "balance of the academic year" (i.e. beyond 36 or 38 weeks but up to 42 weeks) will be devoted to "complementary functions and professional development". Looking only at Article 11.01 B 1, the 36/38 ceiling seems quite rigid and impermeable. It governs the teaching load within the academic year, and reserves the last few weeks of the academic year for other things (i.e. non-teaching functions). The College argues that such rigidity could not have been the parties' intention despite the imperative quality of the language found in Article 11.01 B 1, because Article 11.01 J 2 contemplates overtime payments for hours in excess of 44 in a week. Accordingly to the College, the fact that payment is contemplated suggests that excess hours may be scheduled. The apparent "limitation" is actually "flexible" because, in some instances at least, the agreement says so. The College further points out that Article 11.01 I uses the very same "shall not exceed" wording in respect of both the number of teaching weeks and the number of teaching hours permitted in a week. Yet Article 11.01 J 1 immediately contradicts this purported "hard ceiling" by creating an exception and an entirely new limitation. Despite the "shall not exceed" words in Article 11.01 I, the College may in fact assign an extra teaching contact hour in any one week, or an extra three total workload hours in any one week - provided in either case that the assignments are voluntarily assumed. Counsel asks parenthetically: "Why would the bargaining parties provide for payment if extra work could not be assigned". He argues that the words "shall not exceed" do not have the mandatory character that one might otherwise assign to them looking at Article 11.01 B 1 alone. He submits that, in context, the "hard ceiling" in 11.01 B 1 is not mandatory after all. We do not agree with this latter proposition. It appears to the board that the situation created by this agreement is like the one that came before the Divisional Court in Massey Ferguson Industries Ltd. et al., 79 CLLC 14,228. There, the Court had before it a provision that it considered mandatory, followed by exceptions, and it was suggested that the exceptions weakened the "mandatory" sense of the previous wording. The Court observed: There may, however, be a provision in a collective agreement that weakens its effect, in the sense that relief may be granted from an omission to obey. That would not change the [earlier mandatory] word's meaning, only its effect. In other words - to put the matter colloquially - it is the exception which proves the rule. In our view, that is the situation that we have here: a mandatory scheme with specific ceilings and, as well, equally specific exemptions or options for relief. If one of those exceptions is triggered, excess hours may be scheduled provided payment is made and the consent of the professor is obtained. But if a specific exception is not triggered, the overload assignment cannot be scheduled. For example, we do not think that it is open to the College under any circumstances to schedule probationary teachers beyond the specified maxima, nor is it open to schedule anyone beyond the "hard ceiling" provided in Article 11.01 J 1 (unless, of course, there is a negotiated local exemption under Article 11.01 M). The structure of this agreement - in particular Articles 11.01 J 2 and 11.01 J 3 - also underlines another feature of the contractual scheme that we think must be kept in mind when one is construing the limitations and potential exemptions: the exemptions (i.e. permission to schedule overload assignments) may depend not only upon the payment of salary premiums for extra work, but also upon the consent of the individual(s) asked to perform that work. In other words, the ability to create an overload assignment may not turn exclusively on the College's willingness to absorb the extra cost. There is more to establishing an overload assignment than paying the "overtime" rates provided in the agreement. The union asserts that Articles 11.01 J 1, J 2, and J 3, when read together, provide a complete code for ceilings and exemptions. Daily or weekly workload limits may only be exceeded in the specific circumstances and on the specific conditions prescribed. But, the union says, there is no similar code for extension of the number of teaching weeks the situation which gave rise to this grievance. It follows, the union says, that extra weeks may not be scheduled. Nor, in the union's submission, is there any explicit method of Payment for "extra weeks". If, as the College claims, the presence of premium payment rules suggests that overload assignments may be scheduled, then the absence of such payment rules for "extra weeks" suggests that extra weeks cannot be scheduled. In the union's submission, this omission is not accidental. There is no express provision for extra teaching weeks and no express premium payments for teaching extra weeks, because there was no intention to permit extra weeks except by specific negotiations with the union under Article 11.05. And, of course, no such negotiations took place in the instant case. There is much to be said for the union's argument in this regard. However, we find ourselves unable to accept it in its entirety. In particular, we think that the language of Article 11.01 K 4 can in fact be read to provide a formula by which one can calculate premium payment for "extra weeks". No doubt the language is not a model of clarity. But in our view, the words of Article 11.01 K 4 (i) and (ii) can be read to cover an overload assignment (extra weeks) of the kind that sparked this grievance. Indeed, that is precisely how the College decided what to pay the professors who undertook the work assignments here under review: the College applied Article 11.01 K 4, and no one complained about the payments so received. In our view, the College's reading of Article 11.01 K 4 is the correct one. We should begin by observing that both the annual limit on the number of contract days in Article 11.01 K 1, and the annual limit on the number of contract hours in Article 11.01 K 3, are already framed with implicit reference to the number of weeks in the academic year and the number of hours in the standard week as spelled out in earlier clauses in the agreement. The number of weeks is already "built in" to the annual ceiling - as a little arithmetic will demonstrate. The annual limit of 180 or 190 contact days in Article 11.01 K 1 is based on a regime in which a professor teaches 36 or 38 weeks for up to five days per week. A professor does not normally work on Saturday or Sunday (Article 11.01 L 3). Indeed, if s/he has a compressed weekly schedule with fewer than five contact days, that weekly schedule is deemed to be five contact days (see Article 11.01 K 2). Thus, the ceiling in Article 11.01 K 1 is derived from: 36 teaching weeks or 38 teaching weeks x 5 days in a week = 180 or 190 contact days in an academic/teaching year. That is where the "180 or 190 contact days ceiling per academic year" comes from. Similarly, in Article 11.01 K 3, the maximum number of contact hours in an academic year is set with reference to the fixed number of teaching weeks (from Article 11.01-B 1) and the number of teaching contact hours permitted in a week (from Article 11.01 I). Viewed arithmetically, then, the ceiling for the "maximum number of contract hours annually", is derived this way: for post-secondary programs, 36 weeks x 18 contact hours = 648 total permitted hours per academic year; and for non-post-secondary programs, 38 weeks x 20 contact hours = 760 total permitted hours per academic year. These are the "maxima" to which Article 11.01 K 4 is referring before it goes on to prescribe the premiums payable when a teacher works "in excess of" those maxima. In other words, 11.01 K 4 does contemplate payment for extra weeks, because 11.01 K 1 and 11.01 K 3 already embody the maximum number of teaching weeks mentioned in Article 11.01 B 1. The limits in 11.01 K 1 and 11.01 K 3 are already based upon a presumed number of teaching weeks. Article 11.01 K 4 tells the College what to pay if that maximum is exceeded. Accordingly, and to this extent, it is open to the College to argue that 11.01 K 4 does indeed provide for premium payments, and that if overload payments are contemplated (i.e. payment for extra weeks) the assignment of extra weeks must at least be possible. A comparison of Article 11.01 K 4 (ii) with Article 11.01 J 2 also suggests that 11.01 K 4 can cover payment for "extra weeks". It will be seen that someone who works in excess of the weekly teaching contact-hour maximum (i.e. 18 or 20 hours per Article 11.01 I) will be compensated at a rate of .1% of annual salary. That premium is triggered each week that the professor works hours beyond the ceiling on contact hours. But if that is so, what is the purpose of Article 11.01 K 4 (ii)? Why is it necessary? Over a year, how could anyone be working in excess of the 648-hour maximum (36 weeks x 18 hours) or the 760-hour maximum (38 weeks x 20 hours) in such manner as to give Article 11.01 K 4 (ii) some independent effect that is not already covered by Article 11.01 J 2? When would Article 11.01 K 4 (ii) ever be applicable? The answer we think is: "if a Professor is scheduled to work more than 36 or 38 weeks"; because, in that circumstance, s/he could exceed the maximum mentioned in 11.03 K 3 and 11.01 K 4 but might not be able to rely on 11.01 J 2 for the calculation of premium pay because the "overload" assignment would be within the weekly limit of hours per week. Unless 11.01 K 4 (ii) is totally redundant - an interpretation that we hesitate to embrace - it should be read to cover something that 11.01 J 2 does not; and in our view, that "something" includes an overload assignment of extra weeks beyond the 36 or 38-week limit prescribed in Article 11.01 B 1. We should also note that the final sentence of Article 11.01 K 4 specifically mentions 11.01 J and prohibits "pyramiding" - which in our view reinforces the impression that Article 11.01 K 4 covers something that 11.01 J does not. In the board's opinion, this is the most probable interpretation of Article 11.01 K 4, and the most likely situation in which it could be implied. In view of Article 11.01 L 3, it does not seem probable that 11.01 K 4 was crafted to catch extra work on Saturday or Sunday. For the foregoing reasons, we think that the collective agreement can be interpreted in a way that tells the College how to pay someone who teaches more than 36 or 38 weeks in an academic year. And because the collective agreement can be interpreted in this way, there is an inference - at least arguably - that in some circumstances an assignment of this kind can properly be made. But that does not mean that the College can initiate such assignment unilaterally, ignoring the mandatory ceilings in Article 11.01 B 1. Nor does it mean that all that is required is employee consent. Again, it is necessary to consider the whole contractual scheme of which Article 11.01 B 1 is an integral part. As we have already mentioned, the workload regime prescribed in Article 11 is mandatory. Each professor must have a workload that adheres to the provisions of Article 11. The College can only deviate from the prescribed norms where the collective agreement specifically permits it, and upon such conditions as the collective agreement specifically prescribes. One of those conditions is the payment of premium pay. Another is the consent of the employee or the union, depending upon which part of Article 11 comes into play. Against this background we simply do not think that it is open to the College to claim that it can unilaterallY structure work assignments that require a professor to teach beyond the 36- or 38-week limits set out in Article 11.01 B 1. Nor does the College claim such authority. The exercise of this "management right" is specifically circumscribed by the terms of Article 11. The number of teaching weeks in the academic year is a "hard ceiling" - to adopt the terminology advanced by counsel. But can that "hard ceiling" be breached (i.e. can Article 11.01 B 1 be ignored) provided the College obtains the consent of the professors concerned? Is that the additional condition which must be met? Is employee consent the licence that allows extra weeks to be scheduled, and Article 11.01 K 4 the formula for calculating the licence fee? That is the College's submission, and makes some sense given the way that other "overload" situations have been dealt with (explicitly) in the agreement. The problem with that proposition though, is that, in this agreement, the parties have quite carefully specified when employee consent will be the factor that determines when an established norm can be exceeded. But there is no such specification for extra teaching weeks. The agreement does not say that extra weeks may be scheduled so long as the professors consent to such overload assignment. Articles 11.01 I and J contemplate extra hours in the week, be they extra contact hours or time in excess of the 44-hour weekly maximum. But these clauses quite clearly, specifically, and repeatedly emphasize that these overload assignments are "voluntary" or "agreed to" by the individuals asked to work them. Article 11.01 J 3 describes them as "voluntary overtime agreements", requires that they be set out in writing, and provides that they be filed with the teacher and with the union local within ten days. And the agreement further provides that employee consent "shall not be unreasonably withheld". Teacher consent is a critical condition precedent and has been explicitly stipulated by the bargaining parties. (In a somewhat analogous context, Article 11.03 provides that extra teaching during the summer period i.e. beyond the normal academic year - will be scheduled on a consent or rotational basis.) In other words, where the parties have intended that a workload ceiling could be exceeded in some manner or with the consent of the professor concerned, they have said so. Where the parties intended to make employee consent a factor in the equation, they had no difficulty finding language to accomplish that purpose. They did so explicitly. But there is no such "employee consent" language respecting extra teaching weeks. It is perfectly understandable that Nick Prokos would discuss the problem with his colleagues and seek their consent before assigning additional weeks to them. That was a-sensible thing to do. However, that practice is not supported by any concrete contractual language. Nor does the agreement provide that employee consent is all that is necessary before extra weeks may be assigned. Can such contractual condition or "permission to exceed the norm" be properly implied? Is employee consent what the parties must have had in mind, even if they did not expressly say so? That solution has its attractions, because it would ensure equivalent treatment for all overload assignments, whether they involve extra teaching hours, total workload hours, or the number of teaching weeks in the academic year; moreover, it would also appear to be more consistent with the way that the agreement seems to treat work assignments in the summer period. In each case, the stipulated ceiling could be exceeded, provided there is consent and the professors are paid at a premium rate. The problem with this interpretation is that it is not a necessary implication from the contract language. Nor is it necessary to give business efficacy to that language. And to imply a term to this effect flies in the face of both Article 32.01 D, and the general rule of construction known as the "expressio unius principle": if the agreement specifies one exception to a general rule, or assumes to specify the effects of a certain provision, other exceptions or effects are excluded. The fact that employee consent is stipulated in one portion of the agreement, suggests that its absence elsewhere is deliberate. It is also difficult to square the employer's proposed result with the portion of Article 11.01 B 1 that provides that "the balance of the academic year shall be reserved for complementary functions and professional development" - particularly since Articles 11.01 H to 11.01 H 3 reinforce the professors' entitlement to "professional development days" and delineate how such days will be distributed. It is difficult to give effect to those provisions and professor rights if the number of teaching weeks is extended towards or to the very end of the academic year; moreover, the disturbance to the negotiated scheme is much more substantial than would be the case with extra teaching hours per week. As in the case of the number of teaching weeks, the agreement simply does not contemplate that these teacher rights may be avoided or abandoned, provided only that the teachers in question agree. And again: the parties to this agreement have been quite careful to construct specific workload rights and workload norms, and provide quite specific, limited and defined circumstances in which those norms can be exceeded. There is no exception permitting extra weeks and no formula by which extra weeks may be scheduled on consent. Conversely, Article 11.01 M does explicitly provide a general exemption from all contract norms and ceilings, provided that the local union and the College agree in writing. In other words, the agreement does provide a specific mechanism through which the business needs of the College can be accommodated without "reading in" provisions to which the parties have not specifically agreed. Similarly, it is open to the electrical department to schedule courses, or to split them or use sessional lecturers as other departments have apparently done, without controversy. The agreement is not - or need not be - a straightjacket. Finally, there is no indication from the contract language or the union's position in this case that a local agreement under Article 11.05 could be or would be unreasonably denied - particularly since the work assignments here under review are beneficial for the College and its department, the professors involved have willingly assumed these extra duties, and there is no indication that anyone else would be prejudiced by a continuation of the existing practice. Article 11.01 M permits a reasonable accommodation of the parties' competing concerns, without resort to the "implied terms" urged upon us by the College. For the foregoing reasons, we have concluded that the College cannot schedule beyond the number of teaching weeks set out in Article 11.01 B 1 without the agreement of the local union obtained under Article 11.01 M. It is no answer that the extra weeks were agreed to by the professors concerned, because that is not a permissive condition that is contemplated by, or properly "read into", this collective agreement. The union's grievance therefore succeeds. The board declares that the assignments beyond 36 or 38 weeks that gave rise to this grievance were made contrary to the terms of the collective agreement. In all the circumstances, we do not think that any other remedy is necessary or appropriate. Dated at Toronto this 18th day of April, 1996. R.O. MacDowell, CHAIRMAN I Concur, "S. Murray", UNION NOMINEE I Concur, "Rene St. Onge" COLLEGE NOMINEE