HomeMy WebLinkAboutUnion 04-12-17 IN THE MATTER OF AN ARBITRATION
BETVVEEN:
GEORGE BROWN COLLEGE
(the "College")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
AND IN THE MATTER OF A UNION GRIEVANCE Re: Article 7.02(vi)
OPSEU FILE NO. 01C218
AWARD
BOARD OF ARBITRATION Paula Knopf, Chair
R.J. Gallivan, Employer Nominee
Sherril Murray, Union Nominee
APPEARANCES
For the College F.G. Hamilton, Counsel
Nancy Hood, Executive Director,
Human Resources
Dave Ivany, Manager, Labour Relations
For the Union Gavin Leeb, Counsel
Ed Larocque, Steward
Damian Wiechula, Chief Steward
Tom Tomassi, President
Hearings in this matter were held on November 27, 2002; April 30, 2003; October 7,
2003; October 14, 2003; October 17, 2003; May 13, 2004; June 2, 2004; June 24, 2004
and; September 30, 2004.
You can't always get what you want
But if you try sometime ....
You just might find you get what you need!
-The Rolling Stones
AWARD
Introduction
This is a contract interpretation case launched to determine the extent of
the Union's right to information under Article 7.02(vi) of the Collective Agreement. The
case arises in the context of the Union's concern over the College's staffing decisions.
While the Collective Agreement states that the College "will give preference to the
designation of full-time positions.., subject to... operational requirements", it also
allows the College to hire part-time, partial-load, and sessional faculty. The Union is
concerned that the College is not giving adequate preference to the creation or
maintenance of full-time positions. Further, the Union sees its role as one of ensuring
that the full-time hiring preferences are honoured. In that capacity, the Union asserts
that Article 7.02 (vi) is an important vehicle for ensuring proper contract administration
and compliance with the staffing provisions. Therefore, it has presented this grievance
to determine what information and documentation must be provided by the College when
requested. The critical article reads as follows:
Article 7: UNION/COLLEGE COMMITTEE (LOCAL)
7.02 A Committee of three members appointed by the College or
Campus officials will meet with the Union College or Campus
Committee at a mutually agreed time and place provided that either
party requests and gives at least seven days prior notice
accompanied by an agenda of matters proposed to be discussed. It
is agreed that matters to be the subject of discussion at meetings
include: .....
(vi) if requested by the Union Local, the College shall explain its
rationale for its application of ^rticle 2, Staffing, or 27.05 (iii). In
particular, it will consider any representations which the Union Local
may make with respect to the assigning of work on a full-time or a
sessional, partial-load or part-time basis, and with respect to the
feasibility of assigning work on a full-time basis rather than on a
sessional, partial-load or part-time basis.
Other Articles of relevance to this case are:
Article I - RECOGNITION
1.01 The Union is recognized as the exclusive collective bargaining
agency for all academic employees of the Colleges engaged as teachers,
counsellors and librarians, all [sic] as more particularly set out in Article 14,
Salaries, excepted for those listed below.
(i) Chairs, Department Heads and Directors,
(ii) persons above the rank of Chair, Department Head or
Director,
(iii) persons covered by the Memorandum of Agreement with the
Ontario Public Service Employees Union in the support staff
bargaining unit,
(iv) other persons excluded by the legislation, and
(v) teachers, counsellors and librarians employed on a part-time
or sessional basis.
NOTE A: Part-time in this context shall include persons who teach six
hours per week or less.
NOTE B: Sessional in this context shall mean an appointment of not
more than 12 months' duration in any 24 month period.
Article 2 - STAFFING
2.01 The College shall not reclassify professors as instructors except
through the application of Article 27, Job Security.
2.02 The College will give preference to the designation of full-time
positions as regular rather than partial-load teaching positions, as defined
in Article 27, Partial-Load Employees, subject to such operational
requirements as the quality of the programs, attainment of the program
objections, the need for special qualifications and the market acceptability
of the programs to employers, students, and the community.
2.03 A The College will give preference to the designation of full-time
positions as regular continuing teaching positions rather than sessional
teaching positions including, in particular, positions arising as a result of
new post-secondary programs subject to such operational requirements as
the quality of the programs, enrolment patterns and expectations,
attainment of program objectives, the need for special qualifications and
the market acceptability of the programs to employers, students, and the
community. The College will not abuse sessional appointments by failing
to fill ongoing positions as soon as possible subject to such operational
requirements as the quality of the programs, attainment of program
objections, the need for special qualifications, and enrolment patterns and
expectations.
Article 9 - EMPLOYEE/EMPLOYER RELATIONS COMMITTEE
Purpose
9.01 The parties agree to establish an Employee/Employer Relations
Committee (E.E.R.C.) in order to:
(i) Facilitate communications between Management and the
Union at the Provincial level in an unconstrained, yet official
manner during the life of the Agreement;
(ii) Preclude and resolve common problems during the life of the
Agreement;
(iii) Permit both parties to enter negotiations with much of the
groundwork completed.
9.03 H The Committee will examine the adequacy of information supplied
to the Union Local, including information supplied under 27.02 F, 27.04
and 27.12.
Article 27 - JOB SECURITY
Layoff and Involuntary Transfer
27.05 ...
(iii) If requested by a member of the CESC within three calendar
days following the meeting under 27.05 (ii), the CESC shall
meet within seven calendar days of receipt of such request
for the purpose of discussing the planned staff reduction, the
circumstances giving rise to the reduction, the basis for the
selection of the employees affected and the availability of
alternative assignments. It being understood that the College
reserves the right to determine the number and composition
of full-time, partial-load and part-time or sessional teaching
positions, the College shall give preference to continuation of
full-time positions over partial-load, part-time or sessional
positions subject to such operational requirements as the
quality of the programs, their economic viability, attainment of
program objections, the need for special qualifications and
the market acceptability of the programs to employers,
students and the community. The CESC may require that
further meetings be held.
Personnel Lists
27.12 During the last week of September, January and May the College
shall notify the Union Local President of all personnel covered by the
Agreement hired or terminated since the last notification, together with the
classification, location and Division or Department concerned. At such
times, the College shall also include notification of all hirings of personnel
assigned to teach credit courses including, in particular, sessional
appointments.
Strictly speaking, this is a simple contract interpretation case. Therefore,
one would not expect that the evidence would have been necessary or extensive.
However, the parties chose to call many days of evidence in order to explain and
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illustrate the implications of their positions. All of this evidence has been carefully
reviewed and considered by this Board of Arbitration. Only the essential and most
relevant evidence shall be recited in this award.
George Brown College (hereinafter referred to as the "College") is an
urban institution with 12,000 full-time and 50,000 continuing education students. There
are three campuses, offering 149 degree, diploma and certificate programs. Thousands
of interesting and stimulating courses are offered. Obviously it is a complex and huge
organization.
The fundamental dispute between the parties is over the extent and nature
of information that must be provided to the Union under Article 7.02 (vi) with respect to
the use of non-full-time faculty. The Union views access to certain specific information
as critical to its role of ensuring compliance with the staffing provisions of the Collective
Agreement. The Union seeks data and information that it says is critical to its obligation
to protect the "integrity of the bargaining unit". The importance of this issue has been
heightened in the last decade because the number of full-time positions at the College
has dramatically declined. This has occurred for a variety of reasons including declines
in funding from several sources. The College's position is that it has made extensive and
time-consuming efforts to supply information to the Union to explain its staffing decisions
and that it has gone beyond the requirements of the Collective Agreement. However, the
Union is seeking the following additional information through this case:
Workload: All information necessary [for the Union] to make its own
determination about the amount of work being performed by each person
employed in a non-full-time permanent capacity. Specifically,...
i) the number of contact hours;
ii) class size;
iii) course code;
iv) amount of preparation required;
v) amount and kind of evaluation and feedback;
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vi) administrative duties; and
vii) complementary duties.
Scheduling: Where course scheduling does not maximize the employment
of full-time staff and/or where course scheduling is a factor in the use of non-
full-time staff,.., the reason(s) why the College scheduled the course(s) in
the manner that it did and why the College did not schedule the courses in a
manner that maximizes employment of full-time permanent staff.
Operational Requirements: .... sufficient information [for the Union] to
independently assess the nature of any operational requirement put forth by
the College as the reason for hiring a non-full-time employee.
Miscellaneous Factors:... any additional or other factor(s) considered by
the College in making a decision pursuant to either Article 2 and/or 27.
The College feels that the Union is seeking facts, documentation and details that are not
mandated by Article 7.02 (vi) or the rest of the Collective Agreement, and that are also
unavailable given the College's current technology. Therefore, the College is asserting
that the Union's requests are neither justified under the Collective Agreement, nor are
they cost effective or reasonable.
The Evidence
The President of the Union Local, Tom Tomassi, testified to put a factual context
to this grievance. He has been a faculty member for 26 years and held Union positions
for most of them. He testified about full-time faculty positions declining relatively steadily
since 1991 and mentioned the major layoff of 135 faculty members in 1996. Numerous
grievances have been launched throughout these years regarding the layoffs and the
declining numbers of full-time positions. Concurrently, the Union Executive has engaged
the College's administration in efforts to obtain information that would better enable the
Union to advise bargaining unit members about their rights under the Collective
Agreement. Some of these talks lead to the innovative and productive creation of an
"information bank" that allowed the faculty to match their areas of expertise with
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curriculum needs. This "bank" was discontinued once the large layoff situation was
resolved. Since then, the Union has been trying to get specific information from the
College about non-full-time staffing decisions. While the College often provides
explanations for the decisions, the Union wants specific information in order to
"independently assess" the rationale provided and/or test the validity of any operational
requirements that have been cited by the College. The Union also feels that it is entitled
to receive specific types of information so that it can make the kind of representations
that are contemplated in Article 7.02 (vi). Mr. Tomassi explained that without the
routine provision of such information the Union has had to resort to the filing of
grievances and exerCise the documentary disclosure rights under the arbitration process
in order to gain adequate knowledge about whether the staffing preferences have been
respected. Mr. Tomassi believes that if "full and accurate" information were provided to
the Union at the outset, the Union would be able to make informed and responsible
decisions about where and when to challenge staffing decisions. He explained that he
has lobbied the College for years to adapt its technology so that this kind of information
would be readily accessible. He also expressed dissatisfaction about the fact that the
College's Human Resources Department does not have access to the specific course
and staffing information that is kept at the Divisional level. Further, he articulated
frustration about having to file grievances in order to get information through production
and/or finding out that the desired information was never accumulated or retained by the
College or its Departments. He feels that this has meant that grievances over staffing
have not been able to properly address the merits of the complaint. Mr. Tomassi
conceptualised this case as an effort to obtain the "College wide" information that is
necessary to alleviate the Union's concerns. He is adamant that the Union needs
accurate information about the work being done by non-full-time faculty and the
workloads they carry. As he explained, "1 need to be able to justify to the bargaining unit
the reasons why we have over 500 part-time [i.e. non-full-time]as opposed to 450 full-
time faculty."
The Union's primary witness was Damian Weichula. He has been a faculty
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member since 1980. His local Union activities include positions as the Union's Chief
Steward, Vice-President and Co-Chair of the College's Workload Monitoring Committee.
His provincial Union activities include him being a member of the negotiating team and a
member of the College Relations Commission Information Service Advisory Committee
(CRCIS). His testimony is premised on his assertion that the College should "maximize"
the use of full-time employees and only use non-full-time employees when that is
"necessitated" by the operational requirements set out in Articles 2.02 and 2.03.
Therefore, Mr. Weichula contends that the Collective Agreement requires the Colleges to
provide to the Union both a "qualitative and quantitative" rationale for the use of non-full-
time faculty. He argues that the Union is entitled to sufficient information for it to be able
to independently analyse "all aspects" of the workload being performed by non-full-time
teachers. This would include the number of contractual hours being delivered, the class
sizes, the course load, the amount of preparation time, evaluation .and feedback methods
and any additional details that will contribute to workload. Mr. Weichula asserts that the
Union needs all this information in order to assess whether the work being done by the
non-full-time faculty "may more properly" be classified as a full-time position. Mr.
Weichula sees the Union's role as being responsible "for the task of enforcing the
Collective Agreement and ensuring that if there is full-time work available, that it is
assigned to full-time members of the bargaining unit". Mr. Weichula argues that the
Union is unable to undertake a proper analysis or make informed representations under
Article 7.02 (vi) without having the requested data available.
Despite his concerns, Mr. Weichula concedes that numerous informational
meetings are held with the College's Human Resources Director, the Department Chairs
and/or Supervisors. At these meetings, the Union is given the "27.12 lists" that this
College supplements with information regarding the part-time appointments. As cited
above, Article 27.12 technically only requires notice to be given regarding "all personnel
covered by the Agreement hired or terminated since the last notification" and notice of
"all hiring of personnel assigned to teach credit courses including, in particular, sessional
appointments". The lists are provided to the Union in advance of the meetings and
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document the names and employee numbers of the non-full-time employees, the
Departments where they are assigned, their classifications, the duration of their
contracts, and their "teaching contact" or classroom hours. The Departments are listed
and the appointees are designated as either full-time, partial-load, part-time or sessional
faculty together with the start and end dates of their contracts and compensation
information. The lists also contain the names of teachers who have left and their reasons
for leaving. For the sessionals, the rationale for their hire is handwritten beside their
name and the Union is given the course codes and/or an indication of whom the
sessional is replacing. The Union takes these lists and highlights the names of teachers
for whom the Union wants an explanation for the assignment. Not all assignments are
then queried by the Union. The Union recognizes that there are many "legitimate"
reasons for hiring sessionals, such as a replacement of someone away on a temporary
leave, the teaching of a pilot course or a sudden influx in student enrolment. However,
when queries are raised by the Union, the Department Chairs are made available at
meetings to respond to the questions posed. Nevertheless, Mr. Weichula claims that the
answers that have been given have been "inadequate for the most part". He says that
the Department Chairs could not always explain specific assignments. In other
instances, the Union was not satisfied with the Department's explanation a's to why it
scheduled several sessions in one period, such as with Dental Hygiene. In other cases,
when a Department Chair could not answer the Union's questions and promised to "get
back" to the Union with details, that further information never arrived. The Union has
also encountered difficulties regarding the accuracy of some of the information that has
been provided.
These difficulties must be seen in light of the evidence that there
have been many hours of meetings held in order to address the Union's concerns. Mr.
Weichula's notes from these meetings reveal that the Union is sometimes given detailed
explanations for specific appointments and/or given general explanations for a program's
staffing approach. It is apparent that the Union and the College personnel have
expended enormous amounts of time in order to address staffing issues.
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Nevertheless, Mr. Weichula asserts that even in situations where the Union
has not traditionally challenged sessional appointments, the Union still needs further
detailed information from the College. For example, the Union may wish to challenge a
non-full-time faculty assignment for the launching of a pilot course or the
filling of a temporary leave of absence, depending on the number of students involved or
the nature of the subject matter. Further, the Union may want to ensure that a
replacement teacher is not taking on a greater course load than the full-time teacher that
s/he is replacing. Mr. Weichula suggests that if the College would be "more forthcoming"
at the onset with the information that is being sought, then the Union would not be forced
to challenge so many appointments.
Mr. Weichula testified that the Union has been unable to advocate "very
effectively" with the information that is currently available because it is restricted to simply
"counting the teaching hours and dividing them by assignable workload hours to full-time
employees". Mr. Weichula is concerned that this kind of equation fails to capture other
aspects of workload such as class size and preparation. Therefore, he feels that he has
inadequate information to properly analyse the part-time assignments or determine when
and where the Union should be advocating that full-time work is available. He also
conceded in cross-examination that scheduling classes and teaching assignments
involves many other considerations, such as operational requirements, the "learning
process of the students", the availability of classroom and lab space, and teacher
preferences. He further agreed that the College should want to find the "best person to
do the job" in terms of providing an "excellent learning opportunity for the students".
Therefore, he recognized the difficulty of simply equating the hours assigned to part-time
teaching with available positions. However, these concessions did not overshadow his
fundamental assertion that full-time staffing should be "maximized" and that the Union
should be given specific justifications for any other staffing decisions.
Mr. Weichula admits that the kinds of specific information he is seeking,
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especially in terms of class size, preparation and administrative duties are similar to the
information captured on the Standard Workload Forms (SWF's) that are generated only
for the full-time faculty pursuant to Article 11. However, Mr. Weichula relies heavily on
the suggestion offered by the Howe Board of Arbitration in Re Ontario Public Service
Employees Union and George Brown College decision dated December 21, 2002, p.49:
..... Although the Agreement does not require the College to prepare SWF's
regarding sessionals, it might well be advised to do so (with appropriate
adjustments to reflect the lesser amount of time which sessionals are expected
to devote to complementary functions) as they would serve to alert the College to
situations in which teaching loads assigned to sessionals might be in violation of
Article 11.05. Moreover, voluntarily providing such SWF's to the Union would
likely improve the relationship between the parties by engendering a greater
level of cooperation and trust, and by obviating the Union's need to resort to
protracted arbitration proceedings, at substantial cost to both parties, in order to
obtain through production orders relevant information concerning the College's
use of sessionals .....
Mr. Weichula suggests that the College should follow this advice as well as the
examples of other Colleges that he says provide the requested information "as a matter
of course". Mr. Weichula firmly believes that the information that is being sought is
available within the College even if it is not currently stored all in one place or all on one
system. He suggests that the information is accessible, either through Payroll, Human
Resources or at the Departmental or Program level.
In addition to specific information about non-full-time faculty and their
assignments, the Union is also seeking systemic information from the College regarding
its scheduling. The Union questions why the College may schedule numerous classes
within a program at one particular time or bring in non-full-time faculty to cover "peak
periods" as opposed to spreading course work out over the academic year. The Union
questions the way classes are being scheduled and is seeking specific justifications for
timetabling decisions that do not "maximize" the use of full-time faculty. Accordingly, the
Union is seeking scheduling information on both a shod-term and annual basis.
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While the Union is currently receiving explanations regarding many of the
operational requirements that come into play with the hiring of non-full-time faculty, the
Union is seeking more details about such "rationale". For example, the Union wants
enough information about the "special skills" that the College may cite as a rationale for
an appointment so that the Union itself could analyse the information and examine
whether it could find full-time faculty members who have the special skills required to
fulfil some of the part-time assignments. Generally, Mr. Weichula summarized the
Union's request for information as follows:
The Union is very limited with the information it gets. The Union is not privy
to all the facts that surround a particular decision. So if there is anything
that the College knows in terms of the amount of information or work or any
particular aspects of it that would cause it to assign work on a non-full-time
basis, we would ask that the rationale be explained to us in detail so that
we can perform our duties under Article 7.02 (vi).
The Employer's factual perspective for this case was presented primarily
through Nancy Hood, the current Director of Human Resources at the College. She has
only been with the College since April of 2001 but she has extensive human resources
experience in the College system. The thrust of her evidence is that the College is
meeting and going beyond the requirements of the Collective Agreement to explain
staffing decisions to the Union. She explained what the College is actually providing to
the Union in terms of information related to this case. The bulk of the information is
conveyed through the "27.12 lists" that are issued in the last weeks of September,
December and May of each year. Ms. Hood also explained that there are practical
difficulties of accumulating, tracking and maintaining the level of detailed information that
the Union is seeking in this case. This is partly because, with the exception of the
sessional teachers, non-full-time faculty are hired at the Divisional level. The College's
central Human Resources Department does not gather or process the detailed
information that the Union is seeking. Human Resources simply receives forms from the
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Departments with basic information such as a part-time teacher's name, Department,
number of teaching contact hours, rate of pay, addresses and employee numbers. This
information is then entered into the College's Human Resources
Information System (HRIS). Further, because of the size of the College and the numbers
of Departments, there have been variances in the amounts and types of information
reported by each program. However, in order to be responsive to the Union's requests
for information, Ms. Hood has implemented a system whereby each Department must
indicate the rationale for the hiring of each non-full-time faculty member on a new Payroll
Action Form (PAF) that is to be completed by the Departments at the time of hire of non-
full-time faculty. The PAF proVides a space to indicate the rationale for hiring and the
name of the person being replaced, if applicable. The "rationale for non-full-time hires" is
entered by way of a coding system. The PAF's are then filed with Human Resources.
The rationales are then hand written beside the names on the "27.12 lists". If the
rationale is missing, a staff member from Human Resources calls the Division in order to
fill in the details. Currently, the following rationales are coded:
Reason Code Rationale for Non-Full-time Hire:
1 Illness - Short or Long Term DisabilityNVSIB
2 Professional Development Leave/Sabbatical
3 Leave of Absence (including maternity/parental,
unpaid, vacation)
4 Secondment
5 Retirement (Early or Post)
6 Full-time resignation or replacement (posting in
progress)
7 Extra class/extra hours/fluctuation in enrolment
patterns
8 Part of the new program development/Start Up
9 Special assignment/downloaded or curriculum
assignment
10 Program has short-term funding
11 Specialized qualifications
12 Other (explain on contract form)
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"Float" for ESL classes
Ms. Hood mentioned that there is an intention to update this list to include additional
items such as "Union release" or "other relevant matters". The Union acknowledges that
the arrival of Ms. Hood at the helm of the Human Resources Department and her
initiatives have made a positive difference in the quest to obtain adequate and reliable
information.
However, Ms. Hood explained that even with the implementation of the
new Payroll Action Form and its coding system, the College's current technology does
not allow for the gathering and analysis of data the Union is seeking concerning the non-
full-time faculty schedules, timetabling, course Icad or preparation time. When asked
why the reasons for hire and/or the course codes are not recorded on the College's
central data base, Ms. Hood responded: "... because we don't have to under the
Collective Agreement and we don't have a field in our system to capture this. It would
require a change in our system to capture it."
Despite the lack of easy access to some of the information the Union
wants, the Human Resources Department often fields questions frem the Union on an
ongoing basis and will answer questions regarding certain appointments. The
information is gathered from the data filed by each Department with Human Resources
or by individual inquiries from Human Resources directly to the Departments. One
person in Human Resources is dedicated to precessing the non-full-time staffing reports.
For the weeks preceding the issuance of the "27.12 lists", two additional data entry
people are also dedicated to this task. Given the number, of Divisions and Programs
across the College, the nature and extent of information previded varies in detail and
content. Further, until or unless the information is captured by the Human Resources
Information System (HRIS) there is no central record of the information or way to analyse
it on a global basis. The College's current system does not centrally record class size,
course numbers, schedules or preparation hours for non-full-time staff.
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Ms. Hood explained that the College also regularly provides the Union with
information under the Article 27.05 College Employment Stability Committee (CESC)
process. This is a forum where the parties' Joint Committee can discuss potential staff
reductions or layoffs. Topics of discussion can include budget, strategic planning, long
and short-term goals, staffing initiatives, program initiatives and information about where
new hires may be contemplated. More detailed infOrmation is provided if reductions in
full-time staff are being contemplated through layoffs or transfers.
Ms. Hood also made reference to the Provincial Employer/Employee
Relations Committee (EERC) established pursuant to Article 9.01 in order to:
i) Facilitate communications between Management and the Union
at the Provincial level in an unconstrained, yet official, manner
during the life of the Agreement;
ii) Preclude and resolve common problems during the life of the
Agreement;
iii) Permit both parties to enter negotiations [for subsequent
collective agreements] with much of the ground work completed.
Ms. Hood pointed out that there has never been a request from the Union at the
Provincial level to look into the adequacy of the kind of information that is being explored
in this case despite the existence of Article 9.03 H which provides that the EERC "will
examine the adequacy of information supplied to the Union Local, including information
supplied under Articles 27.02 F, 27.04 and 27.12."
Ms. Hood also tried to illustrate that a great deal of information being
sought in this grievance is already available to the Union even though if may not be in
the format the Union would like. For example, she spoke about the publicly-issued Core
Data report. This report contains the number of full-time faculty, counsellors, librarians,
instructors, their gender distribution, their steps on the salary schedule and the maximum
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obtainable steps. In addition, it lists the partial-load faculty, their positions on the salary
scale, their gender information and the number of hours they work. Further, it gives the
hours worked by the part-time faculty in terms of teaching contact hours. Further, the
report contains the age of the faculty members, their average Years of service, their
salaries and data regarding program co-ordinators. In addition, the College Relations
Commission Information Service Advisory Committee (CRCIS), a joint Union and
College body, has identified the type of information to be collected, developed a format
for coding the information received, recommended the type of analysis to be performed
and its dissemination to assist the College's Relations Commission in gathering and
analysing data for purposes of collective bargaining. Reports for CRCIS are prepared by
each College. The standard format includes all information relating to the workload
formula, the number of faculty with and without SWF's, the reason for full-time faculty
without SWF's and all the elements contained within the SWF's. Given these jointly
developed and public systems, Ms. Hood questions why additional data is being sought
through the forum of arbitration.
The evidence of both parties established that the Union reviews all the
information given to it by the College and/or that it is able to acquire on its own. The
Union then carefully identifies areas of concern and/or apparent discrepancies between
the workloads being reported and the schedules that are available. These concerns are
delivered to the College prior to the UCC meetings. The College then responds to the
Union's queries by having its Managers meet.with the Union and explain the rationale for
the appointments that the Union has identified. It is not uncommon for the Union to
identify discrepancies between the timetables and the SWF's. Ms. Hood explained that
this often occurs because of the changing nature of assignments and course
requirements. At the same time, she stressed that the College recognizes its obligation
to provide all the information mandated by Article 7 as well as the following Collective
Agreement provisions:
Section Re(luirement
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9.03 H E.E.R.C. examines adequacy of information supplied
to Union Local, including information supplied under
27.02D, 27.04 and 27.12
10.03 Monthly lists of names and locations of employees
having dues deducted
10.05 Number of employees in each classification by salary
steps
11.01 J3 Voluntary overtime agreements given Union
11.02 SWF and timetable information given teacher, Union
and Workload Monitoring Group
14.01B Initial salary placement notice
14.02C2 Less than full-time assignment notice
20.02(xiv) Employees granted professional development leave
26.03 B Partial-load initial Step placement calculation notice
27.02 F Date of probationary period completion
27.04 Seniority lists of regular full-time, probationary and
partial-load employees
27.05(i) Planned staff reduction and courses, programs and
services affected
27.09 D Names and classification of employees recalled
27.11 A Postings of all vacancies given Union
27.12 Lists of ali personnel hired plus classifications,
location, Division/Departments and personnel
assigned to teach credit courses, particularly
sessionals
28 CESC information
29 Extraordinary Financial Exigency information
27.02 F, 27.04 and 27.12
Ms. Hood considers that the Union's requests for additional information in
this case as amounting to a demand for SWF-type information about non-full-time
faculty. She does not feel this is appropriate because SWF is a measurement system
that was developed through collective bargaining after intense negotiations that included
a strike on the issue. The end result was a system designed to apply only to full-time
faculty and intended to reflect the total class definition of a teacher who is expected to do
considerably more than the non-full-time faculty. Therefore, she feels it would be
completely inappropriate to read the existing collective agreement as if it also applied the
SWF measurement system to the part-time faculty.
18
The essence of Ms. Hood's evidence is that the College provides extensive
information, data and opportunities for discussion to the Union in many forms and
forums. She asserts that the College offers more than adequate explanations
and/or answers in response to the Union's questions. She claims that the College
supplies the available information, complies with and indeed goes far beyond the
requirements of the Collective Agreement.
Ms. HoOd expressed concern about the resources that would have to be
found to create the kind of system that would be necessary to supply the additional
information that the Union is seeking in this case. She says that these details are not
being collected or maintained under the current system, nor could they be analysed as
the Union wishes without incurring extensive technological change. This is partly due to
the fact that some of the information that the Union seeks is not recorded centrally, such
as class sizes or scheduling considerations. Other types of information, such as
preparation time or class sizes for non-full-time faculty, are not recorded or estimated for
any current purpose because they are not a direct factor in part-time teachers'
compensation. Nor are they expected to complete any of the administrative
complementary duties. Accordingly, Ms. Hood considers the maintenance of such
information to be of no value. Therefore, she can see no point in designing a system to
capture this kind of information. Further, while the initial contracts of hire completed at
the departmental level may specify some courses and teaching contact hours, the reality
is that the assignments and timetabling for non-full-time faculty change frequently and
extensively and are not currently recorded centrally. Further discrepancies may appear
to arise because timetables and SWF's are created for different purposes and functions.
Therefore, they do not always match. For example, a course may appear on the
timetable as a three-hour credit, but the faculty member assigned may not be scheduled
for the full load of the course. Therefore, his/her SWF will not match the timetable.
Further, given the size of the College and the diversity of the programs, different
departments utilize different methodologies for recording information. In addition, the
19
system for recording financial, timetabling and student records is not integrated with the
HRIS system. As a result, there will be considereble difficulties in gathering, analyzing
and maintaining the information the Union is seeking. She testified that the information
technology is simply not in place to accurately generate the global or specific kinds of
information that the Union seeks.
The Union questions the College's assertion that the information being
sought is either not available or not capable of being gathered without difficulty. For
example, the Union wants the course codes assigned to all non-full-time teachers. Mr.
Weichula believes that the College system could provide this because, as a teacher, he
can enter his own personal employee number and receive a list of his own courses with
class lists in order to submit his marks. Further, Mr. Weichula asserts that each
Department Chair should have a record of what classes are being taught and their sizes
for each non-full-time member of that Department. Therefore, he asserts that the
College must have a way of gathering all of this information together. The Union also
wants the teachers' schedules printed with the course names and number codes. The
Union concedes that those schedules are often subject to change. However, the Union
wants this information to be able to compare the timetables with the workload information
provided on the "27.12 lists". The problem with the present system is that the schedules
often print out course names without the course code numbers and the SWF's are
issued with only the course numbers on them. Therefore, it is a very labour-intensive
exercise for the Union to audit the schedules from the SWF's. The Union also wants
information on the amount of time attributable for course preparation by non-full-time
faculty. While Mr. Weichula concedes that there is no current system for recording or
calculating such time, he suggests that it would be "roughly equivalent", to the amount of
time attributed for preparation for the same courses being taught by full-time faculty.
Therefore, he feels that it should be possible to attribute preparation time to non-full-time
staff in the same way that it is done on the SWF for the full-time faculty.
However, Ms. Hood's evidence pointed out that part-time and partial-load
19
system for recording financial, timetabling and student records is not integrated with the
HRIS system. As a result, there will be considerable difficulties in gathering, analyzing
and maintaining the information the Union is seeking. She testified that the information
technology is simply not in place to accurately generate the global or specific kinds of
information that the Union seeks.
The Union questions the College's assertion that the information being
sought is either not available or not capable of being gathered without difficulty. For
example, the Union wants the course codes assigned to all non-full-time teachers. Mr.
Weichula believes that the College system could provide this because, as a teacher, he
can enter his own personal employee number and receive a list of his own courses with
class lists in order to submit his marks. Further, Mr. Weichula asserts that each
Department Chair should have a record of what classes are being taught and their sizes
for each non-full-time member of that Department. Therefore, he asserts that the
College must have a way of gathering all of this information together. The Union also
wants the teachers' schedules printed with the course names and number codes. The
UniOn concedes that those schedules are often subject to change. However, the Union
wants this information to be able to compare the timetables with the workload information
provided on the "27.12 lists". The problem with the present system is that the schedules
often print out course names without the course code numbers and the SWF's are
issued with only the course numbers on them. Therefore, it is a very labour-intensive
exercise for the Union to audit the schedules from the SWF's. The Union also wants
information on the amount of time attributable for course preparation by non-full-time
faculty. While Mr. Weichula concedes that there is no current system for recording or
calculating such time, he suggests that it would be "roughly equivalent", to the amount of
time attributed for preparation for the same courses being taught by full-time faculty.
Therefore, he feels that it should be possible to attribute preparation time to non-full-time
staff in the same way that it is done on the SWF for the full-time faculty.
However, Ms. Hood's evidence pointed out that part-time and partial-load
20
faculty are not hired on the same basis, nor do they have the same expectations placed
upon them as the full-time faculty. They are hired to teach a specific number of hours.
They are paid simply in accordance with the number of teaching contact hours. They
also are not expected to undertake the kinds of administrative or complementary work
that is factored into the full-time salary calculationl Further, the workload formula's
attribution of hours is only an approximation and may have little applicability to the
preparation time of part-time faculty, given their differing levels of experience and the
different kinds of courses they may be teaching.
Ms. Hood criticized the Union's justification for seeking specific reasons for
failing to schedule full-time faculty in many instances. Ms. Hood pinpoints the Union's
claim that the College should be scheduling in a manner "that maximizes employment of
full-time permanent staff". She believes that such an approach is not consistent with the
Collective Agreement or with the reality of running the College. She stressed that the
College takes into consideration a number of factors in appointing and scheduling staff
which include:
(a) The sequencing of courses in order to allow students proper
advancement through curriculum and program delivery;
(b) Requirements of full-time faculty, including accommodation,
preferences and special projects;
(c) Students' needs;
(d) Availability of classroom and laboratory space; and
(e) The fiscal limits of the College.
Ms. Hood expressed concerns about the cost implications of an award which would
require the College to begin to gather and maintain the kind of data that the Union is
seeking. She stressed that there would have to be a change in the College's current
technology and that a project manager would have to be put in place to design the
amendments to the current system. She also believes that additional personnel would
21
have to be dedicated to the task of gathering and maintaining the information. Finally,
she added a note of caution. While conceding that a system could conceivably be
designed to capture the "reasons for hire" which are currently encoded on the P^F hiring
form for the non-full-time faculty, she pointed out that even this information may not be
completely adequate. This is because the encoded "reasons for hire" may not be able to
adequately articulate the broader factors that have prompted the hiring of
the non-full-time faculty member. For example, quite apart from the professional
reasons why an individual may be chosen to be hired, there may be an overall rationale
that could be based-on a factor such as curriculum progression or deliverability, rather
than a rationale that is "a specific reason". Therefore, she pointed out that it would be
difficult for a system to be able to record and analyse all the kinds of information that the
Union is seeking.
Ms. Hood candidly accepted that the College has an obligation to explain to
the Union who is being hired, in which departments and rationale as to why, if they are
not full-time appointments. She stressed that the College is quite prepared to meet with
the Union and review "overall staffing patterns and address the Union's questions", even
though she revealed that the meetings are time-consuming and sometimes frustrating for
all involved, be they Management or Union personnel. However, while she recognizes
the College's obligation to provide a rationale to the Union, she does not see any utility or
contractual requirement to gather data and supply it to the Union on the level of detail
that is being sought for the non-full-time faculty in this case. She did hasten to add that
the College does provide reasons and information in specific cases when requested and
where such data is available. Ms. Hood also stressed the extensive effort that the
College expends to respond to the Union's questions and its desire for rationale. She
said,
"We have really tried to be co-operative and to give an explanation. But to supply
the extensive information being sought by this grievance would take a huge
commitment on our part with no value added. If they [the Union executive] feel
there is a violation, there is a process. They can file a grievance. But it's not their
22
job to second guess management."
The final factual context offered by the parties for this case was the
evidence regarding the evolution of the contractual language under consideration. In the
1985-87 and 1987-89 Collective Agreements, the relevant provisions read:
8.15 (a) In the event of a recall being made by the College, the
College shall advise the Union Local President of the names
and classifications of the persons recalled;
(b) During the last week of September, January and MaY the
College shall notify the Local President of all personnel
covered by the Agreement hired or terminated since the last
notification, together with the classification, location and
Division or Department concerned. At such times, the
College shall also include notification of all hirings of
personnel assigned to teach credit courses including, in
particular, sessional appointments.
Full implementatiOn of this paragraph shall be delayed
until May 1, 1987. However, as soon as practicable but no
later than the first week of November, 1986, the Local
President shall be advised of all persons hired to teach credit
courses who are commencing in the month of September
1986, their classification, hours of teaching, subjects taught
and department. Martin Teplitsky remains seized if there are
any difficulties in implementation ....
That language was then amended by the negotiations and interest arbitration that
resolved the 1989-1991 contract. In bargaining, the parties had agreed to new clauses
that read:
14.02 (vii) If requested by the Union Local, the College shall explain
its rationale for the application of Article 8.04(c), Appendix 11(5) or
Appendix 111(2), and in particular, will consider any representations
which the Union Local may make with respect to the assigning of
23
work on a full-time or a sessional, partial-load or part-time basis, and
with respect to the feasibility of assigning work on a full-time basis
rather than on a sessional, partial-load or part-time basis.
t 5.03 (i) The Committee will examine the adequacy of information
supplied to the Union Local, including information supplied under
Articles 8.07 and 8.15(b).
The remaining relevant items were dealt with by Arbitrator Martin Teplitsky in an Award
dated November 28, 1989, where he ordered that the former Article 8.15(b) quoted
above should be deleted. As a result, the agreed-upon language formed the Collective
Agreement language that has continued to this day, and the previous Article 8.15(b) was
deleted. In 2003 negotiations, the Union tabled a proposal that was said to "improve
information delivery" and to "enhance existing and develop new information sharing
mechanisms". This included a specific proposal to amend Article 27.12 by requiring the
Colleges to notify the Union about all hiring of personnel assigned to teach credit
courses, including not only the sessional appointments, but also the courses taught by
sessional, partial-load and part-time employees. In addition, notice would have to be
given regarding the hours of assignment of any non-bargaining unit personnel engaged
as counsellors or librarians. The College did not agree to that language. Therefore it has
not found its way into the Collective Agreement. However, in that same round of
negotiations, the parties did reach a Letter of Understanding as part of the Memorandum
of Settlement to create a jointly-constituted task force mandated to "discuss and examine
·.. issues related to the assignment of work to full-time faculty under Article 11". One
specific issue within that task force's jurisdiction is to examine "the impact on full-time
faculty workload resulting from the use of non-full-time faculty."
The Submissions of the Parties
As the above recital of evidence reveals, each of the parties essentially
presented their arguments through their witnesses. However, in addition to this, counsel
for both parties made extensive submissions to advocate the merits of their respective
24
positions.
A. The Union's Submissions
OPSEU's submissions began with the fundamental assertion that the
Colleges are obliged to "maximize" or give preference to the maintenance of full-time
staffing. It is asserted that this is why the Collective Agreement requires the College to
provide rationale for its staffing decisions regarding layoff and non-full-time hiring.
Further, the Collective Agreement provides the Union with the opportunity to have
effective input into these decisions and requires the College to give consideration to this
input. The Union asserts that the contract creates a relationship between the College
and the Union that is a "partnership or co-determination" between "sophisticated and
mature parties". Therefore, it is argued that the Union is entitled to and requires
sufficient information to fulfil this role under the Collective Agreement and provide
informed input to the College. As Union counsel stressed, "information is power", and
without "adequate information" the Union is unable to provide the input that is
contemplated under the Collective Agreement.
The Union also argued that there are sound labour relations reasons why it
should be provided with the information it seeks. It was stressed that the Union has had
to resort to the filing of grievances in order to get certain information. It was argued that
it is in the interest of good labour relations to have information provided as a matter of
course, rather than having to make the Union invoke to the arbitral process.
The Union argues that the effect of Articles 2.02, 2.03(a), 2.03(b) and 27
are that the College is required, wherever possible, to staff by way of full-time professors.
The Union stresses that Article 7.02(vi) refers to Article 27.05 and Article 2. Therefore,
the Union argues that the object of the UCC discussions under Article 7.02(vi) is for the
College to provide explanations and for the Union to give input into whether the College
has complied with its obligations to give preference to full-time faculty. The Union relies
25
on the following cases to emphasize the arbitral recognition of the "preference" language
in the Collective Agreement: Re Fanshawe College and Ontario Public Service
Employees Union (Donaldson & Bucek #83553) unreported award dated January, 1987
(H.D. Brown); Re Fanshawe College and
Ontario Public Service Employees Union (Grunwall #83909) unreported award dated
March 19, 1986 (Samuels); Re Sheridan College and Ontario Public Service Employees
Union (Urowitz) unreported award dated November 6, 1996 (Schiff); and Re Humber
College and Ontario Public Service Employees Union (Union Grievance #93B831)
unreported award dated April 12, 1994 (Howe).
The Union also submits that the purpose of the discussions in the UCC
7.02(vi) meetings is the maintenance and creation of full-time jobs. It is argued that both
sides have defined this interest in Article 2 and, therefore, the College must explain its
rationale whenever it does not use full-time staff. It is also emphasized that Article
7.02(vi) contemplates that the Union will make "representations... with respect to the
assigning of work." It is argued that in order to make those representations, the Union
needs to know how much Work is actually available. The Union relies on the George
Brown College and Ontario Public Service Employees Union decision of the Owen
Shime Board of Arbitration, issued December 23, 2002, which required the College to
produce documents which listed the courses that had been taught by retiring professors
that comprised the "bodY of work" identified by the Union that was being taught by full-
time and part-time, including partial-load and sessional persons. The College was also
required to produce any documents that would "indicate whether those courses, or
courses sufficiently similar, or which are arguably relevant, were being taught by either
full-time or part-time.., persons." The Union argues that since it has been found to be
entitled to information that reveals the existence of a body of work at arbitration, a similar
obligation arises under Article 7.02(vi). Further, the Union relies upon the interim
decision of the Board of Arbitration chaired by Jane Devin in the case between George
Brown College and Ontario Public Service Employees Union regarding use of partial-
load and part-time employees dated June 16, 2003. In that case, the Devlin Board
26
directed the College to produce the list of courses taught by part-time employees, as well
as course outlines and timetables for teachers who taught those courses. This was in
the context of a grievance regarding the use of partial-load and part-time employees that
was said to be contrary to Articles 2 and 10. The Union argues that unless this type of
information is made available to it for purposes of the 7.02(vi) meetings, the Union is
"simply not able to make effective submissions to the effect that there is work available."
Further, the Union submits that if the information were to be provided at the outset,
arbitration and grievances could be avoided because the Union would not have to resort
to litigation in order to satisfy itself regarding the adherence to the Collective Agreement.
The Union also complains that it lacks information regarding the amount of
work that is actually being done by the non-full-time teaching staff. The Union concedes
that it is now receiving information basically about Why non-full-time faculty are being
hired, but it lacks information regarding class sizes, the methods of evaluation and
preparation time for the non-full-time teachers. The Union insists that this type of
information is critical to a determination of workload, that it must be available to the
College and that it should, therefore, be transmitted to the Union.
The Union also argues that there is arbitral jurisprudence that recognizes
that the workload of sessionals Compromises more than just the teaching contact hours.
For example, in the George Brown and Ontario Public Service Employees Union
decision of Robert Howe, supra, the Board of Arbitration had to
determine the reasonableness of assignments to sessional teachers pursuant to Article
11. In that decision, the Board ruled:
·.. In assessing the reasonableness of sessional teaching loads,
consideration must not only be given to time spent in the classroom, but
also to time spent outside of class hours performing tasks such as
preparation for teaching, and preparation and marking tests and
assignments. Where time required for a sessional to evaluate student
performance varies with the number of students (such as where the
method of evaluation involves grading essays, or essay-type tests or
27
projects), claSs size must also be taken into account in determining the
reasonableness of a sessional's teaching load. Consideration must also
be given to the time spent outside the classroom performing related duties
such as speaking with students to answer course-related questions, and
reading and responding to e-mails and memos.
Although the Howe Board of Arbitration also ruled in the same decision that there was
no requirement for the College to prepare SWF's for sessionals, it was argued that this
case gives arbitral recognition that time spent outside the class hours compromise a part
of the teaching load or body of work for non-full-time teachers. Therefore, it was
submitted that this should be taken into consideration in determining whether full-time
work is available in the discussions under Article 7.02(vi).
The Union also argues that the bargaining history between the parties is
consistent with its notion that the Union is an equal partner or, at least, an informed
participant contemplated by Article 7.02(vi). It was said that the evolution of the
language shows that the Union agreed with the College that as a matter of course the
College would not be required to provide the information about all new hires that had
been previously required in the old Article 8.15 (b). The Union argues that the parties'
agreement to delete that clause resulted in Arbitrator Teplitsky then ordering that, upon
request, even broader information was to be provided under which has now become
Articles 7.02(vi) and 9.03(H).
The Union also argues that the right to make representations pursuant to
Article 7.02(vi) must be a "meaningful right" and that, without the requested information,
the Union is forced to "talk in the dark". In support of this, the Union relied on the
decisions of Re People First of Ontario and Ontario (Niagara Regional Coroner) (1992),
87 D.L.R. (4th) 765 (Ontario C.A.); and Re Sandringham Place Inc. vs. Ontario (Human
Rights Commission) 2001, 202 D.L.R. (4th) 301 (Ontario Superior Court of Justice,
Divisional Court).
28
Counsel for the Union reviewed the evidence extensively and argued that
all the information it is seeking must be available either at the departmental or the central
level of the College. The Union asked the College to give sufficient information
for the Union to be able to understand why part-time staff are being used, either for
specific reasons, operational requirements, miscellaneous factors or "something else".
As counsel put it, "Surely the Union should not have to file a grievance and go to
arbitration to find out why a Department is staffing in the way it was." The Union argues
that it is not sufficient for the College to simply give "an overall rationale" for its hiring
decisions. The Union argues that it is entitled to be told not only the overview, but also
the specific reasons for each non-full-time hire in response to requests from the Local.
The Union also argues that the College is failing to adhere to the letter and
the spirit of the Collective Agreement by offering "rationale" for the use of non-full-time
faculty, but being unwilling to provide specific reasons. The Union argues that the
difference between "reasons" and "rationale" is a "distinction without a difference". To
support this, the Union points to the College's own contract for Sessional Partial-load
and Part-Time Academic Staff Form.(PAF) which asks the Department to fill out the
"reason for hire". It is that "reason" which is being provided to the Union and as the
"rationale" for the use of the non-full-time faculty. In short, the Union asserts that the
information it is seeking would provide the details and specifics that are necessary to
make effective representations at the meetings held pursuant to Article 7.02(vi).
B. The College's Submissions
The essence of the College's case is that the Union's presentation really
belongs in negotiations, not at arbitration. It was said that the Union is trying to make the
College establish or create a "whole new information system about non-full-time
teachers". It was stressed that the Union has already tried unsuccessfully three or four
times to obtain the same kind of information through collective bargaining or in front of
other Arbitrators. This case was said to be an inappropriate forum for the Union to
29
continue to seek what it has not yet succeeded in achieving.
The College rejects the Union's suggestion that the Article 7.02(vi) and
UCC meetings create a "partnership or co-determination" relationship between the
College and the Local. Instead, the College asserts that it retains the management
rights to hire, organize and manage in accordance with the Collective ^greement. It was
stressed that nothing in the Collective ^greement creates any expectation that
agreement must be reaChed at the UCC meetings, nor are there any consequences for
failure to reach agreement.
The College relies on the dictionary definitions of the key words of Article
7.02(vi) emphasizing that the use of the word "discussion" simply means that the issue
should be "talked about". It was said that the College's obligation to "explain" does not
equate to an obligation to provide data. The concept of "rationale" was said to mean that
the masons must be explained, not proof provided. Finally, it was said that the College
is only required to "consider" the representations, not agree to the Union's proposals. It
was argued that the Union can, on its own initiative, conduct its own investigation and
determine its own facts. However, the College asserts that there is no contractual
obligation to collect, store, organize or transmit data that it currently does not have. To
this end, the College relies on the decision of the Arbitration Board chaired by Gall Brent
regarding Fanshawe College and Ontario Public Service Employees Union (Grievance #
82102) unreported decision dated May 6, 1983.
Counsel for the College also stressed that the College "takes umbrage" at
the suggestion that it has been deficient in living up to the obligations under Article
7.02(vi). It was stressed that the evidence should disclose that personnel from the
College's various Divisions have attended many time-consuming meetings and provided
extensive information to the Union. The College says it has done so "voluntarily" in the
interests of good labour relations. The College argues that because there is no
reference to Article 27.12 in Article 7.02(vi), them is no obligation for the College to
30
discuss the 27.12 lists, supplemented with information about the part-time people, at the
UCC meetings. Despite this, the College has been willing to do so and takes offence to
the Union's suggestion that it has failed to comply with the spirit of the Collective
Agreement.
Further, the College challenges the fundamental premise of the Union's
case. In response to the Union's argument that the Collective Agreement mandates that
the use of full-time faculty must be "maximized", the College stresses that the Collective
Agreement simply requires that "preference" should be given to the use of full-time
teachers and also allows for "operational requirements" to be given effect. It was said
that the College's scheduling practices are not based on the concept of maximizing full-
time positions, but, instead, are based on the students' needs and principles of
educational excellence. Further, the College argues that the concepts of "maximize" and
"preference" are not synonymous. It was said that "preference"'is a comparative concept,
whereas "maximize" is an absolute. Therefore, it was submitted that the Union's
fundamental approach to this matter is flawed.
Turning to the specific requests from the Union, counsel for the College
argues that the evidence presented establishes that much of the workload information is
either unavailable, untraceable and/or too costly to collect, track, or organize. Further, it
was said that the history of negotiations between the parties should reveal that the
delivery of the documentation is not mandated by the Collective Agreement.
Insofar as the scheduling information is concerned, the College argues that
the settlement of a number of grievances reached by the parties on July 17, 2003 related
to the analysis of the Article 27.12 lists and should completely govern this
situation. In that settlement, the parties agreed that the College would provide timetable
documentation regarding the use of non-full-time staff. They also agreed that the
arrangement would remain in effect for two academic years or until August 31, 2005, at
which time the parties would review the arrangement. The College argued that no one
31
should "disturb" that agreement and that the Union should not be allowed to seek a
further or alternative remedy in this forum.
Further, the College argues that it is complying with the Collective
Agreement by providing rationale for the use of non-full-time faculty, but that the Union is
seeking information that would amount to proof in support of the rationale. The College
asserts that the Union is effectively seeking SWF-type information which is currently not
gathered or maintained for non-full-time teachers. Further, some of the details being
sought, such as preparation and administrative time, are not factors in the calculation of
the salaries of non-full-time staff. Therefore, it was said that there is no point in the
College gathering or maintaining such information.
Further, the College argues that none of the arbitration decisions, including
those of the Shime or Devlin Boards of Arbitration, have required a College to create
information. While they have required a College to communicate available information,
they have never required the College to produce documentation or create information
that did not already exist. The College asks this Board of Arbitration to rely on Ms.
Hood's evidenCe to conclude that an order requiring the creation of the kind of
information that the Union is seeking would be costly and take away resources from the
students. Further, it would result in the tracking of numerous positions about which there
would never be a dispute, such as sessionals hired to substitute in the place of
sickness, specialities or people hired to deal with the sudden influx of students. It was
also argued that the information the Union is seeking does not even go to the heart of
the application of Article 2 because it does not take into consideration operational
requirements. Instead, it would simply support the Union's "incorrect" theory that the
appointment of full-time positions should be "maXimized''.
The College also pointed out that the Collective Agreement contains
numerous situations where information delivery is mandated specifically. It was stressed
that SWF information is only required for full-time staff under Article 11. Further, Article
32
27.12 only requires the College to give the Union information about the persons covered
by the Collective Agreement, and does not include reference to part-time appointments,
schedules or assignments. Counsel for the College also points to the numerous other
provisions in the Collective Agreement which were mentioned by Ms. Hood and which do
not mandate the provision of the kind of information the Union is now seeking. It is
argued that these sophisticated parties know how to negotiate what information must be
provided, and have simply not negotiated to provide what the Union is now seeking.
Most importantly, it is also argued that Article 9.03 H provides a specific mechanism to
address the need for further information by way of the joint EERC. It was said that the
Union should address its desire for more information either in collective bargaining or at
the EERC meetings, not though a grievance such as this.
Counsel for the College submitted that the evidence of negotiating history
shows that the kind of information the Union is now seeking is not mandated by the
Collective Agreement. It was argued that the language awarded by Arbitrator Teplitsky is
significant. Further, we were asked to note the parties' agreement to delete the former
Article 8.15(b) which had mandated that the Union be given notice of all hiring of
personnel assigned to teach credit courses, including sessional appointments. However,
counsel for the College stressed that there is no evidence that would prove that the
agreement to delete the specific disclosure of material is linked to current language of
the Collective Agreement.
The College also argues that the evidence establishes that the College is
already going beyond "any reasonable expectation" of providing information in the 27.12
and 7.02(vi) meetings. It was said that if the Union is unsatisfied with the specific
information being provided, a grievance could be launched to address the specific
position(s) being challenged. It was also argued that it is improper to expect this Board
of Arbitration to order a systemic change in the College's practice. The College also
relies on the following cases to support its contention that the Union has been
unsuccessful in attempts to obtain SWF information through arbitration: see Re Ontario
33
Public Service Employees Union and George Brown College, Union Grievance #98C292
(Academic) unreported decision dated December 21, 2002 (Howe); and Re George
Brown College of Applied Arts and Technology and Ontario Public Service Employees
Union, Local 556, Union Grievance, unreported decision dated July 26, 1998 (Snow).
The Decision
This is a case designed to clarify the meaning and implications of Article
7.02(vi). Ironically, it is useful to begin by emphasizing what this case is not about. This
is not a case where the Board of Arbitration has to decide if the College is complying with
Article 7.02(vi). The parties have agreed that they simply want an interpretation of the
Article to provide direction about their respective rights and obligations. The evidence
was not presented so that it could be analysed with a view of determining compliance.
Instead, it was presented to give a context to the operational and practical implications of
the Article. Further, this Award is not a ruling on the interpretation, application or
administration of Article 27.12. That is an entirely different Article than Article 7.02(vi),
with different implications and requirements. This is also not a case that will interpret or
apply Article 2. Many cases have already written on the subject directly.
Nonetheless, Article 2 must be recognized as the backdrop of this case.
The substantive rights in Article 2 are what will be addressed in the Article 7.02(vi) UCC
meetings. These are not just Union rights. These rights include not only the
"preference" for full-time appointments, but also consideration of operational
requirements as well. Therefore, both parties' rights are at stake in the discussions at
the UCC meetings. Presumably, this is why the UCC was created as a joint body.
The application and enforcement of Article 2 has been dealt with by many
other Boards of Arbitration and must be understood to appreciate its impact on the
Article 7.02(vi) discussions. When a grievance is filed under Article 2, the Union must
show a prima facie case demonstrating that a vacant position exists and/or that there is
34
adequate work to justify the filling of a position. Once a prima facie case is established,
the evidentiary onus shifts to the College to explain why a full-time appointment has not
been made. [See George Brown College (Shime), supra; and Fanshawe (Samuels),
supra.] Because of the way this Article works and the evidentiary burdens on the parties,
arbitration boards have ordered Colleges to produce lists of courses taught by part-time
employees, course outlines and timetables (see George Brown College (Devlin), at pp. 6
and 7, supra). The Shime Board of Arbitration, in the other George Brown College case,
supra, also ordered this College to produce lists of the courses being taught by retiring
professors and existing documents which would indicate whether "those courses, or
courses sufficiently similar, or which [were] arguably relevant, [were] being taught by
others who [were] either full-time or part-time, which [included] partial-load and even
sessional persons" (see Award, page 6). These orders for production reflect the
conclusion that the Union has an interest in understanding the nature of the "body of
work" that it believes has been assigned in violation of Article 2.
However, counsel for the College is correct when he points out that the
orders for production do not necessarily equate to collective agreement requirements.
Orders for production are based on an arbitrator's determination of what may be
"arguably relevant" to an issue being litigated. The information that a collective
agreement may specifically mandate could be completely different. However, there are
other factors that the parties have to consider. The determination of relevance at
arbitration is based on the language of the Collective Agreement and the issue(s) raised
in the grievance. Therefore, the practical implications of the production jurisprudence in
the College sector is that if the Union is able to make out a prima facie case that a body
of work exists that could justify the filling of full-time positions, the onus then shifts to the
College to explain the use of the non-full-time appointments. If the College does not
possess the information or cannot explain its decision, it will lose the case. Therefore, it
is in the College's interest to not only comply with the Collective Agreement, but also to
be able to substantiate its reasons for hiring non-full-time staff. Ms. Hood recognizes this
and has implemented a system at this College requiring the Departments to indicate the
35
"reasons for hire" on the contract forms for the sessional, part-time and partial-load
academic staff appointments. A board of arbitration cannot order how the College
collects and retains information. However, because the Collective Agreement requires
that preference is to be given to full-time appointments, it is very important for the
College to be able to explain why a full-time person has not been appointed. Whether
this information is gathered, retained or available departmentally or through a central
mechanism is up to the College. But because the College may be required to explain a
non-full-time appointment at an arbitration, the information must be maintained and be
accessible.
The duty to explain any non-full-time appointments arises not just at
arbitration. The duty arises much prior to litigation. It arises under Article 7.02(vi), the
very Article under scrutiny in this case. Article 7.02(vi) promises that the "College shall
explain its rationale for its application of Article 2 and 27.05(iii)." Therefore, the crux of
this case becomes what is required to fulfil this duty of explanation?
The Union argues that it needs specific information to "audit" and enforce
the preference for full-time hiring. In order to address this argument, it is important to
define the Union's role with regard to this Article. The Union is given the right to make
"representations... with respect to the assigning of work on a full-time or sessional,
partial-load or pad-time basis and with respect to the feasibility of assigning work on a
full-time basis rather than on a sessional, partial-load or part-time basis." This is a right
to make representations. This is put in the Collective Agreement for a reason. It
provides a check and balance for the contract's administration and ideally allows the
parties to avoid the costs and disruptions of arbitration every time the Union has
suggestions or concerns about appointments. Indeed, Article 7.02 (ii) says that the UCC
meetings can include discussions about "conditions causing misunderstandings or
grievances." Therefore, a primary purpose for the discussions is the avoidance of
unnecessary grievances. However, the Union's right to make representations does not
make the Union an equal partner or a co-determinate with regard to staffing decisions.
36
The right to hire and manage, subject to specific provisions in the Collective Agreement,
solely resides with the College (Article 6). The College does not have to secure the
Union's approval for non-full-time appointments, but it does have to explain the rationale
for the decision and consider any representations the Union may offer as alternative.
Accordingly, the right to make representations remains a real and important right in this
collective agreement. A denial of the right to make representations would be a serious
violation of the contract. For example, if management refused to participate in the UCC
meetings or failed to explain its rationale, there would be a significant violation of the
Collective Agreement. ·
The Union asserts that it needs specific information to make the right of
representation in this Article effective. Indeed, the proVision would be meaningless if the
Collective Agreement simply contemplated the Union shooting in the dark at the
meetings. On the other hand, nothing in the language of the Article suggests that the
College is required to provide forensic proof to support its decisions. As admitted by the
Union, many non-full-time appointments are accepted without challenge once certain
rationales are presented. For example, the hiring of non-full-time;faculty to replace
somebody on leave or to teach pilot courses or address an influx of students is often
accepted as sufficient explanation or rationale for the hiring of non-full-time faculty.
Therefore, we do not accept the Union's submissions that it needs sufficient information
to "independently assess" all the details of the. factors that go into a hiring decision. That
would enmesh the Union in a level of minutia that is neither contemplated by the
Collective Agreement nor required for the Union to fulfil itsduty to its members.
The College's evidence about the difficulties of producing the information
the Union is seeking has been considered carefully and accepted as accurate. However,
it is not sufficient for the College to respond to an information request by simply saying
that documents do not exist, that it would be too expensive to implement a system to
generate information or that it is too difficult to obtain the information being requested.
Such defences may be sufficient to reply to an order for production because no tribunal
37
will ask that a document that never existed be created. See George Brown College
(Howe), supra. However, a Board of Arbitration can order that information or
documentation be provided if it is accessible. More importantly for purposes of this case,
if a collective agreement mandates the exchange of information or documentation, it is
no defence for an employer to say that it does not possess the current technology to
produce it. If an employer has agreed to provide information in its collective agreement,
it must fulfil that contractual promise to do so. Therefore, while we are sympathetic to the
College's concerns about the expenses that could be incurred to generate the kinds of
information the Union wants, those concerns are not relevant in a determination of the
contractual rights and obligations in this Collective Agreement.
We note that the College has emphasized that it recognizes its obligation
to provide the rationale for its hirings. This must also be seen in the context of staffing
decisions made within Articles 2 and 27. Article 7.02(vi) requires that the rationale for
those decisions must be explained. Therefore, the College must be able to explain to the
Union the operational requirements that prompted the staffing to be carried out in the
fashion that theCollege has decided. However, the Union wants even more than that
with respect to workload. The Union wants "all the information necessary to make its
own determination about the amount of work being performed by each person employed
in a non-full-time permanent capacity." Specifically, it wants the number of teaching
contact hours, class sizes, the course codes, the amount of preparation required, the
amount and kind of evaluation and feedback, administrative duties and complementary
duties. Clearly, Article 7.02(vi) does not mandate the College to package and provide
data in any specific way. Further, there is no obligation to apply the Article 11 workload
formula to the work of the non-full-time teachers. However, the George Brown College
awards of Arbitrators Devlin and Shime, supra, do establish that Articles 2 and 27.05(iii)
do give the Union an interest in the "body of work" being performed by non-full-time
faculty. Because of this, Arbitr. ator Devlin ordered the College to supply the Union with
lists of courses taught by part-time employees, their course outlines and the timetables of
faculty who taught those courses. This information would often include with it the
38
number of teaching contact hours, the method of evaluation and the course codes.
Since this information is germane to Article 2 and 27.05(iii) inquiries, it is also germane to
discussion about "the feasibility" of assigning the work to full-time staff or otherwise.
Therefore, we interpret the Collective Agreement as requiring the College to be prepared
to supply such existing information to the Union if requested. Once received, the Union
can undertake its own analysis of this information. This interpretation does not mean
that the Collective Agreement requires such information to be supplied to the Union for
every course assigned to a non-full-time teacher or that it must be packaged under any
particular format. However, if the College fails to produce that information for the Union
when requested to do so pursuant to Article 7.02(vi), the college does so at the risk of
finding itself in violation of that Article or failing at arbitration if a staffing grievance is
launched. Accordingly, the College should be prepared to supply that information when
and if a request is made by the Union pursuant to Article 7.02(vi).
We do not conclude that the Collective Agreement requires the College to
deliver to the Union information with regard to class size, the amount of preparation
required, the method of evaluation or any administrative or complementary duties
undertaken by the non-full-time faculty. This data might have helped the Union
understand the actual workload of the non-full-time appointments. But under the current
collective agreement, the non-full-time faculty are not compensated by taking all these
factors into account. Therefore, we cannot see any practical or contractual requirement
for the College to gather or retain all this information in such a way that it can be
delivered to the Union. Further, by virtue of the nature of their appointments, non-full-
time appointments do not undertake administrative or complementary duties. Therefore,
there is no utility in expecting the College to track or record such functions with regard to
the part-time staff. Finally, and most importantly, Article 11 created the SWF system with
respect to full-time appointments only. The monitoring of this type of information for non-
full-time staff was not negotiated into the contract and will therefore not be ordered by
this Board of Arbitration.
39
The Union is also seeking specific information with regard to timetables.
Nothing in this award should interfere with the settlement achieved by the parties
following the release of the Devlin Board's Interim Award. On July 17, 2003 the parties
reached a settlement with regard to their 27.12 lists that provides:
The parties agree to meet in November, 2003 pursuant to Article 7 to
discuss the Fall 2003 27.12 lists and a mutually agreeable process
regarding the use of non-full-time staffing. Having regard to Jane Devlin's
award regarding the provision of information and the context of looking to
the future staffing needs of the College rather than focusing on the past,
the College agrees to provide the timetable documentation available
to the Union. [emphasis added]
This arrangement on process will remain in effect for two academic years;
namely until August 31, 2005, at which time the parties will review the
arrangement. Any continuation of the arrangement, or changes to the
process will be by mutual agreement.
We recognize that this Agreement was reached in the context of another grievance
relating to the 27.12 lists. However, the Agreement pertains to Article 7 discussions, and
this College includes the part-time and partial-load appointments on the 27.12 lists.
Further, the Agreement covers the way the timetabling information will be delivered.
Therefore, it would be improper to make any order disturbing that arrangement in these
proceedings. That Agreement should remain in effect without amendments, until August
31, 2005 and can only be continued or amended by mutual agreement. Therefore, we
defer to the parties' own Agreement as the answer to the Union's request with regard to
the conveying of timetabling information.
The evidence of the parties' negotiation history concerning the relevant
clauses has been useful in the sense that it has disclosed the July 17, 2003 Agreement.
However, the negotiation history (including the Teplistsky Award) has not been relied
upon as an aid in interpretation because there is no ambiguity in the language. Further
the evidence does not reveal any clear intent with regard to the existing language. The
40.
fact that the Union has often sought amendments does not shed light on the meaning of
the current language.
The Union is also seeking "sufficient information to independently assess
the nature of any operational requirements put forth by the College as the reason for
hiring non-full-time employees." As stated above and as accepted by the College, the
College must be in a position to identify and justify its rationale for hiring non-full-time
faculty. Ultimately, that justification can be challenged at arbitration if an Article 2
grievance is launched. Absent a legitimate explanation or preof, the appointment could
be overturned by a Board of Arbitration. However, for purposes of Article 7.02(vi), the
College need only "explain its rationale." It need not preve its case at the UCC meeting,
but it must explain its decision to the Union. This puts a practical obligation on the
Departments to be in a position to explain any operational requirements that lead to the
decision to utilize non-full-time appointments. Because the Collective Agreement
requires that the College give preference to the designation of full-time positions, the
Department doing the hiring, or the College itself, must address operational
requirements and be capable of explaining the decision to hire a non-full-time faculty
member. Failure to provide an explanation or rationale for the decision will frustrate the
purpose of the Article 7.02(vi) meetings. But provision of the underlying proof, data or
statistics that may support the rationale is not required by the Article.
It is clear that the Union recognizes that scheduling may be a factor in the
use of non-full-time staff. Scheduling reasons can include the allocation of facility space,
staff preferences, the need to accommodate staff, availability of specialists and/or finding
an optimal way to progress through curriculum. If any of these reasons factor into the
hiring decision, there is no reason why they could not be communicated to the Union as
a reason for scheduling non-full-time faculty. Therefore, if scheduling factors come into
play for the use of non-full-time staff, this must be explained to the Union when the
appointment is questioned. Again, the rationale must be communicated to the Union in
sufficient detail to be understood, but it need not be proven. The Union is entitled to
41
know why the College did not schedule the courses in a manner that gave preference to -
the employment of full-time staff.
The Union is also asking to be told about any "additional or other factors
considered by the College in making a decision pursuant to Articles 2 or 27". Without
doubt the Union is entitled to know if any "other additional factors" were considered by
the College in making its decision. Indeed, it is recognized that the list of operational
requirements in Article 2 is not exhaustive and many factors may come into
play with regard to appointments. While the College can and should articulate these
factors as the rationale for the decision, the College is not obligated to supply the Union
with all the factual and supportive data behind those factors. When and if the College is
unable to satisfy the Union regarding the explanation, the Union has the option of
launching a grievance. Ideally, the exchange of information and suggestions at the UCC
meetings will avoid the necessity of a grievance.
Where does this leave the parties? First, we have reminded the College
that it has to be in a position to explain its use of non-full-time teachers because the
Collective Agreement mandates that the College will give preference to the designation
of full-time teaching positions. We note with approval Ms. Hood's initiatives that have
attempted to address the mandates of Article 7. Therefore, those doing the hiring must
recognize and respect the full-time preference and be able to identify and communicate
the operational requirements that were invoked to justify any non-full-time appointments.
Recognizing that not ali of these appointments will be challenged by the Union,
nevertheless, when and if the Union raises questions about the appointments, the
College must be in a position to explain, at the Article 7.02(vi) UCC meetings, the
operational requirement and/or rationale that it invoked when deciding to hire a non-full-
time person. To this end, the Union is also entitled to request that the College provide a
list of courses taught by non-full-time employees, their course outlines and the timetables
of faculty who taught those courses. The delivery of the timetable information shall be in
accordance with the partieS' own July 2003 settlement cited above on page 39 of this
43
the Union was filing many grievances concerning work-load issues. The evidence
showed clearly that there have been significant improvements in communications since
Ms. Hood has had the chance to implement her initiatives. It is our hope that the
guidance from this Award will further assist the parties in avoiding further litigation.
We remain seized with regard to the implementation of this Award.
DATED this 17th day of December, 2004.
Paula Knopf- Chair
I concur - See Addendum "R.J. Gallivan"
Employer Nominee
I concur "Sherril Murray"
Union Nominee
ADDENDUM OF R. J. GALLIVAN
44
I support the Award's analysis and basic conclusions that Article 7.02(vi) and its
extension 27.05(iii) simply requires the College to "explain" its reasons for the
assignment of work to a non full-time employee. As the Chair says, how the College
meets that obligation is exclusively up to the College and the explanation need not
always be in documentary form or, if the latter in fact exists, be as detailed as the Union
here seeks. It was clear from the evidence that in the interest of trying to manage
productive labour relations in an environment of many unproductive and unnecessary
demands by the Union for documentary proof of reasons for its staffing decisions, the
College meets the Union more than halfway-providing information beyond what is
contractually required.
I also of course agree with the Chair's view that if the providing of information is
mandated bY the collective agreement the College cannot withhold that data on the
grounds that it is too costly to produce. While the Chair found it unnecessary to rely on
the detailed evidence before us of the Union's demands over many years for the kinds of
additional data it argued for here, it is significant that the collective agreement today
requires the College to provide to the union less detailed and less costly information
about its hiring practices than in the past. It was clear that the Union through this
arbitration was attempting to achieve what it had been unable to retain or obtain in
bargaining. The unchallenged evidence before the Board was that the added costs to
the College of meeting the information demands of this local would be significant.
I also endorse the conclusion implicit in the award that the methods by which George
Brown College chooses to meet its obligations under Article 7.02(vi) are unique to it;
obviously, each College bound by the contract is free to determine its own approach.
- R. J. Gallivan
42
Award. It is noted that in many cases the course outlines will give the Union the number
of teaching contact hours, the method of evaluation and the course codes. If the Union
wants to pursue an analysis of this information, it is free to do so.
If further, better or different information is appropriate for the effective and
productive administration of this Collective Agreement, we remind the parties of the
mandate of the EERC pursuant to Article 9.03 H. It bears repeating:
The Committee will examine the adequacy of information supplied to the
Union Local, including information supplied under Article 27.02 F, 27.04
and 27.12.
That Committee is not restricted to examining the adequacy of information under those
listed Articles. That Committee is well situated to examine the adequacy of information
being supplied to the Local Union in the Article 7.02(vi) meetings. We also remind the
parties of all the other provisions in the Collective Agreement regarding the exchange of
information. Finally, the parties can continue to address these issues at the Provincial
Level through the Task Force established to discuss "issues relating to the assignment of
work to full-time faculty under ^rticle 11, including "the impact on full-time faculty
workload resulting from the use of non full-time faculty." These alternative processes
illustrate that these are sophisticated parties who work creatively to develop progressive
and effective problem resolution mechanisms. They recognize that the sharing of
information and ideas can lead to better labour relations and help them avoid the costs
and delays of arbitration. They have defined the opportunities when and where
information is to be supplied. This Award does not expand or alter those negotiated
terms. It simply helps the parties understand the implications of their agreements and, in
particular, the effect of Article 7.02(vi).
In closing we note that this grievance was launched in 2001 at a time that
43
the Union was filing many grievances concerning work-load issues. The evidence
showed clearly that there have been significant improvements in communications since
Ms. Hood has had the chance to implement her initiatives. It is our hope that the
guidance from this Award will further assist the parties in avoiding further litigation.
We remain seized with regard to the implementation of this Award.
DATED this 17th day of December, 2004.
I concur - See Addendum "R.J. Gallivan"
Employer Nominee
I concur "Sherril Murray"
Union Nominee
ADDENDUM OF R.J. GALLIVAN
I support the Award's analysis and basic conclusion that Article 7.02(vi), and by
extension 27.05(iii), simply requires the College to "explain" its masons for the
assignment of work to a non-full-time emPloyee. As the Chair says, how the College
meets that obligation is exclusively up to the 'College, and the explanation need not
always be in documentary form or, if the latter in fact exists, be as detailed as the union
here seeks. It was clear from the evidence that in the interest of trying to manage
productive labour relations in an environment of many unproductive and unnecessary
demands by the union for documentary proof of the reasons for its staffing decisions, this
College meets the union more than halfway - providing information beyond what is
contractually required.
I also of course agree with the Chair's view that if the providing of information is
mandated by the collective agreement the College cannot withhold that data on the
grounds that it is too costly to produce. While the Chair found it unnecessary to rely on
the detailed evidence before us of the union's demands over many years for the kinds of
additional data it argued for here, it is significant that the collective agreement today
requires the College to provide to the union less detailed and less costly information
about its hiring practices than in the past. It was clear that the union through this
arbitration was attempting to achieve what it had been unable to retain or obtain in
bargaining. The unchallenged evidence before the Board was that the added costs to the
College of meeting the information demands of this local union would be significant.
I also endorse the conclusion implicit in the award that the methods by which
George Brown College chooses to meet its obligation under Article 7.02(vi) are unique to
it; obviously, each College bound by the Contract is free to determine its own approach.