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HomeMy WebLinkAboutUnion 01-02-15IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION BOARD OF ARBITRATION: JANE H. DEVLINCHAIR R. J. GALLIVANCOLLEGE NOMINEE M. J. SULLIVANUNION NOMINEE F.G. HAMILTON, FOR THE COLLEGE MAUREEN DOYLE, FOR THE UNION OPSEU FILE NO.:98C037 HEARING DATES:FEBRUARY 22, 1999 JANUARY 22, 2001 1 This matter involves a Union policy grievance in which it is alleged that in 1997, the College violated Article 11.03 of the collective agreement by altering the academic year and, in particular, by requiring faculty in post-secondary programs to return to work prior to September 1st. Article 11.03 provides as follows: 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. Also referred to by the parties were the following provisions of the agreement: 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. . . . 11.01 G 1 Where preparation, evaluation, feedback to students and complementary functions can be appropriately performed outside the College, scheduling shall be at the discretion of the teacher, subject to the requirement to meet appropriate deadlines established by the College. 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. 2 Such activities will be undertaken by mutual consent and agreement will not be unreasonably withheld. Such activities will neither be recorded nor scheduled except as in accordance with 11.01 G 1. 15.01 A A full-time employee who has completed one full academic year’s service with the College shall be entitled to a vacation of two months as scheduled by the College. CLASS DEFINITION PROFESSOR . . . 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, faculty design, professional development, student employment, and control of supplies and equipment. The grievance arose as a result of a memorandum forwarded by Maureen Callahan, then Vice-President, Academic and Student Affairs, to Tom Tomassi, First Vice-President and Chief Steward of the Local, which provides as follows: Date:06/05/97 To:Tom Tomassi, First Vice-president/Chief Steward, Local 556 CC:Sally Roy, Vice-president, Human Resources From:Maureen Callahan, Vice-president, Academic and Student Affairs 3 Subject: Faculty Vacation Further to your request, I am writing to confirm that the faculty return to work date for the majority of post-secondary faculty is August 25, 1997. It is expected that these faculty will have completed their two-month vacation entitlement by that date with the exception of any faculty who have received approval from their supervisor to make other vacation arrangements. “Maureen Callahan” The evidence indicates that Ms. Callahan’s memorandum was written in response to an earlier memorandum from Mr. Tomassi dated July 14, 1997, in which he indicated that it had come to his attention that the majority of faculty had been requested to return to work the last week of August. Mr. Tomassi expressed the view that this request contravened Article 11.03 of the collective agreement. Given the date of Mr. Tomassi’s memorandum, it would appear that the date on Ms. Callahan’s memorandum was a typographical error. In support of its claim, the Union called as a witness Damian Wiechula, a Professor in interdisciplinary studies at the College. At the time of giving his evidence, Mr. Wiechula was also Chief Steward of the Local. Mr. Wiechula testified that the grievance was filed as a result of a “blanket” requirement that Professors return to the College before classes began on September 2, 1997, which was the Tuesday after Labour Day. Mr. Wiechula also testified that prior to 1997, there had been no blanket recall of Professors and no requirement that they attend at the College before the first day of classes. 4 As pointed out by Mr. Wiechula, in respect of teaching periods, Professors are provided with standard workload forms (“SWF’s”), which set out workload factors, consisting of teaching contact hours and attributed hours for preparation, evaluation, feedback and complementary functions. Mr. Wiechula testified that Professors who teach in the fall and winter semesters, which generally extend from September to December and January to April, respectively, are provided with four SWF’s covering the two semesters and that no SWF is provided for May and June, which is a non-teaching period. In accordance with the collective agreement, SWF’s must be provided to Professors six weeks prior to the period covered by the SWF, excluding holiday and vacation periods. Mr. Wiechula testified that his initial SWF for the fall semester of 1997 did not refer to any functions to be performed during the last week of August, nor did any representative of the College request his consent to participate in particular activities. Although Mr. Wiechula also testified that there appeared to be an expectation that Professors would attend at the College in late August, 1997 and complete course preparation, he performs the majority of this work at home and it is generally completed prior to the summer vacation period. Nevertheless, he acknowledged that changes could be made to course assignments between June and September and that in such circumstances, course preparation could not be completed prior to the end of June. 5 As to the necessity for meetings involving faculty prior to the commencement of classes, Mr. Wiechula testified that in some instances, such meetings have not been held and that in other cases, meetings have been held during the first or second week of classes. He also suggested that the College could communicate with faculty by means of memorandum or voice mail and that this practice had been followed in the past. Moreover, Mr. Wiechula testified that if the College intended to require Professors to attend meetings or participate in student orientation in August, these functions ought to have been recorded on each Professor’s SWF. Alternatively, Mr. Wiechula suggested that student orientation could be held in June. Finally, although Mr. Wiechula recalled having attended at the College at some point during the week beginning August 25, 1997, he testified that he did not attend any meetings that week. Moreover, although he did not believe that he attended at the College on Monday, August 25th, he acknowledged that no discipline was imposed as a result, nor was he aware of any other Professor having been disciplined for failing to attend at the College during the final week of August. Mr. Wiechula also acknowledged that he received his full vacation entitlement in the summer of 1997. Ms. Callahan, who was called as a witness on behalf of the College, testified that she prepared the memorandum which gave rise to the grievance in order 6 to clarify the summer vacation for the majority of faculty in post-secondary programs. In this regard, she explained that in 1997, the College had a large vacation liability as in previous years, it had not specified the vacation period and her memorandum was intended to ensure that this liability did not increase. She also testified that the vacation period must be identified in order to determine the date upon SWF’s are to be provided to Professors prior to the teaching period. Although the memorandum specifies a return to work date of August 25, 1997, Ms. Callahan testified that it did not require the attendance of faculty at the College. In this regard, she explained that some faculty might have performed course preparation work at home. Moreover, although some Professors were involved in student orientation, which took place during the week before classes began on September 2nd, Ms. Callahan explained that faculty participation in orientation is arranged by Chairs and Program Co-ordinators. Participation in student registration and attendance at meetings, such as departmental meetings, are also arranged by the Chair. As well, Ms. Callahan testified that her memorandum did not involve a specific work assignment, nor was it intended to give rise to the imposition of discipline. During the week prior to the commencement of classes in September, Ms. Callahan testified that students have the opportunity to register for programs which are still open, add or drop courses, make changes to their timetables and meet with faculty 7 regarding student placements. They also purchase text books and recruiting for part- time employment at the College takes place during this period. Moreover, most programs offer orientation and although students are not required to attend, they are encouraged to do so. During orientation, students are frequently provided with course outlines and, among other matters, are advised of program expectations and the rules of the department. Although at one time, orientation was conducted during the first week of classes, Ms. Callahan testified that when shortened semesters were introduced, orientation was scheduled to take place prior to the start of classes so that the first week of classes could be devoted entirely to teaching. Ms. Callahan expressed the view that it would be difficult for students to benefit fully from the first week of classes if no orientation were conducted. She also testified that student orientation was conducted prior to 1997 and that to her knowledge, there was a similar expectation regarding the participation of faculty. Apart from faculty involvement in orientation and registration and attendance at meetings, Ms. Callahan testified that there is often communication and interaction among faculty in preparation for classes. In this regard, she explained that many courses offered at the College are closely linked and that it is difficult to effectively deliver a course if there is no contact with faculty teaching related courses. Ms. Callahan also testified that prior to the commencement of classes, faculty may have to arrange for the printing of students handouts or deal with issues relating to the availability of text books. 8 As to the academic year, Ms. Callahan testified that for post-secondary programs, there are three semesters, the first being the fall semester in which classes traditionally begin on the Tuesday after Labour Day. The final semester, being the spring semester, ends in August. Ms. Callahan also testified that in 1997, 70% to 75% of the programs offered at the College were post-secondary and the remaining 25% to 30%, were non post-secondary. Although at that time, the majority of post-secondary faculty taught in the fall and winter semesters, a number of faculty had summer teaching assignments as programs such as apprenticeship, nursing and hospitality programs, were offered during the summer months. Ms. Callahan also testified during the 1990's, there was a significant increase in the number of mature students entering the College and that these students were anxious to complete their academic programs as soon as possible. As a result, the College began to offer more programs during the summer months and by this means, a student could complete a conventional two-year program in approximately 16 months. Ms. Callahan also testified that with the increase in mature students, there was growing demand for programs to begin at different points in the year. Accordingly, Ms. Callahan testified that in addition to September, there is a fairly significant intake of students in January and a student who is unsuccessful during the fall semester may re- enter the program in January. Moreover, students who enrol in January generally attend courses during the summer months. In the result, Ms. Callahan testified that the College must be flexible if the needs of students are to be met and expressed the view 9 that it is no longer feasible for the academic year to extend from September 1 to June 30th. In fact, she testified in the fall of 1997, in order to increase the courses available to students in the summer months, the College adopted a new academic schedule consisting of 15-week fall and winter semesters, consisting of 14 teaching weeks and one non-teaching week, and a 14-week spring semester in which Professors teach in seven-week blocks. Beginning in the summer of 1998, two vacation periods were also established. Ms. Callahan testified that for faculty teaching in the fall and winter semesters with a summer vacation period, as was the case for the majority of post- secondary faculty in 1997, classes end in April. During the period of May and June, they are involved in complementary functions, such as course development and student interviews, and Ms. Callahan testified that faculty generally determine the activities to be undertaken in consultation with the Chair of their department or Program Co- ordinator. Ms. Callahan also testified that in 1997, the two-month vacation period for the majority of post-secondary faculty began on June 25th and that when they returned to work in the final week of August, they were expected to engage in complementary functions as they did in May and June. In August, however, Ms. Callahan testified that course development work would generally have been completed and that faculty would be concerned with operational issues, such as the manner in which multiple sections of a particular course could be delivered consistently to students. 10 The issue to be decided is whether the College violated Article 11.03 of the collective agreement. This Article provides that the academic year shall be ten months in duration and shall, to the extent “feasible”, extend from September 1st to June 30th of the following year. The Article further provides that the academic year shall in any event permit year round operation and where a College determines the needs of any program otherwise, the scheduling of a teacher in one or both of the months of July or August shall be on a consent or rotational basis. The meaning of the word “feasible” in Article 11.03 was considered by a Board of Arbitration chaired by Michel Picher in Loyalist College and Ontario Public Service Employees Union November 9, 1995 (unreported) in which the majority of the Board commented as follows: ... As a cautionary note, we should stress that we do not consider it appropriate in this case to make any comment which could be taken as a conclusive or categorical definition of the work “feasible” as it appears in article 11.03 of the collective agreement. We do so because it appears to us that, on the one hand, to risk an unduly broad construction of feasibility might undermine the rights and protections of academic staff in respect of the normal scheduling of the academic year. Whatever the word “feasible” may have been intended to mean, we must conclude that it could not have been intended to be so broad as to give the College carte blanche to schedule the academic year to commence prior to September 1st, as it sees fit, without any objective constraints, or for mere administrative convenience. On the other hand, there is equal danger in adopting an overly narrow view of the term, equating it, for example, with the word “possible”, so that the College is unduly constrained from ever beginning the academic year before September 1st, even where it might have good pedagogical or operational reasons to do so. It appears to this Board that the factors which govern the issue of feasibility for the purposes of Article 11.03 must, of necessity, be looked at on a case-by-case basis, having regard to all relevant considerations which apply to a specific College, in a specific calendar year. 11 We agree with the majority of the Board in Loyalist College that for purposes of Article 11.03, feasibility should be assessed on a case-by-case basis, taking into account the circumstances of a particular College and a particular academic year. As indicated previously, in this case, the grievance arose as a result of a memorandum forwarded by Ms. Callahan to Mr. Tomassi in July, 1997, in which she specified the summer vacation period for the majority of post-secondary faculty and indicated a return to work date of August 25th. Based on the evidence of Mr. Wiechula, it is apparent that he regarded the memorandum as imposing a requirement for faculty to attend at the College beginning on August 25th. However, it is clear from the evidence of Ms. Callahan that this was not the purpose or intent of the memorandum. Instead, the memorandum was issued to clarify the summer vacation period for the majority of post-secondary faculty in order to avoid an increase in the College’s existing vacation liability. Ms. Callahan also testified that in 1997, the summer vacation period began on June 25th and there was no suggestion that any faculty member was denied a two-month vacation to which he or she was entitled under Article 15.01 A of the collective agreement. Moreover, although the memorandum specified a return to work date, it contained no direction to faculty to attend at the College, nor was it intended to give rise to the imposition of discipline. There was also no evidence that any faculty member was disciplined for not attending at the College during the final week of August, 1997. 12 As to the academic year, although classes began on September 2, 1997, as provided in the collective agreement, the academic year, which is ten months in duration, is not confined to teaching periods. In this regard, Article 11.01 B specifies the number of weeks in which there are teaching contact hours for Professors in post- secondary and non post-secondary programs and provides that the balance of the academic year is reserved for complementary functions and professional development. Accordingly, we find that in 1997, the academic year began on August 25th by which time faculty had completed their two-month vacation and the week prior to the commencement of classes on September 2nd involved a non-teaching period. With respect to the feasibility of having the academic year extend from September Ist to June 30th, Ms. Callahan testified that during the 1990's, there was a significant increase in the number of mature students entering the College, including students who had completed university programs. As a result, there was greater demand for courses to be offered during the summer months and for additional intakes so that students would not have to wait a full year before enrolling in a program. As to 1997, the evidence indicates that as in previous years, classes began on the Tuesday after Labour day. Ms. Callahan testified that prior to the start of classes, there was often communication and interaction among faculty as well as 13 various meetings, such as departmental and divisional meetings. Student orientation was also conducted. During orientation, students were provided with materials, such as course outlines, and advised of the expectations of the program and rules of the department. Although at one time, orientation took place during the first week of classes, it would appear that in 1997, in order to increase the courses offered during the summer months, the College adopted a new academic schedule, which included shortened semesters. In that context, it is understandable that the College would want to complete student orientation before classes began so that the first week of classes could be devoted entirely to teaching. Ms. Callahan also testified that it would be difficult for students to obtain the full benefit of the first week of classes without some form of orientation and, in our view, Mr. Wiechula’s suggestion that orientation could be conducted in June is impractical. In the result, taking these various considerations into account as well as the fact that Labour Day fell on September 1st, we cannot conclude that it would have been feasible for the academic year to have commenced on or after September 1st. Moreover, although the Union maintained that there was no need to require all faculty to return to work on August 25th, as indicated previously, Ms. Callahan’s memorandum did not impose a requirement that faculty attend at the College, nor did it involve a particular work assignment. Instead, the memorandum was intended to clarify the vacation period, following which faculty were to engage in complementary functions appropriate to a non-teaching period. In this regard, Article 14 11.08 provides that in keeping with the professional responsibility of teachers, non- teaching periods are used for activities initiated by the teacher and the College as part of the parties mutual commitment to professionalism, the quality of education and professional development. The Article further provides that such activities are to be undertaken by mutual consent and that such consent is not to be unreasonably withheld. The activities are also not to be recorded or scheduled, except in accordance with Article 11.01 G 1. This latter Article provides, among other matters, that where complimentary functions can be appropriately performed outside the College, scheduling shall be at the discretion of the teacher, subject to the requirement to meet appropriate deadlines established by the College. In this case, although Mr. Wiechula claimed that any activities to be undertaken in late August, 1997 ought to have been included on a SWF, that claim was not pursued. Moreover, there was nothing to indicate that during the week of August 25th, Professors engaged in activities which were inconsistent with the provisions of Article 11.08 and, in fact, no violation of that Article is alleged in this grievance. In the result, for the reasons set out, the Board finds that the Union has failed to establish a breach of the collective agreement and, accordingly, the grievance must be dismissed. 15 DATED AT TORONTO, this 15th day of February, 2001. Chair “R.J. Gallivan” College Nominee “M.J. Sullivan” Union Nominee