HomeMy WebLinkAboutUnion 05-07-22 IN THE MATTER OF AN ARBITRATION UNDER THE
COLLEGES COLLECTIVE BARGAINING ACT
BETWEEN
Ontario Public Service Employees Union ("the Union")
AND
St. Lawrence College ("the College")
And in the matter of certain grievances concerning the scope of the
academic bargaining unit, and the College's obligation to give
preference to "full time" teaching positions over "partial load" or
"sessional" teaching positions.
BEFORE: R.O. MacDowell (Chair)
Sheril Murray (Union nominee)
Ann Burke (College nominee)
APPEARANCES:
For the Union: Hilary Cook (Counsel)
Mary A. White
For the College: Carolyn Kay (Counsel)
Cindy Bleakney
Dave McFadden
A hearing in this matter was held in Kingston, Ontario, on
September 23, 2003 and May 18, 2004.
~ · AWARD
I - Introduction: What this case is about, in general
This arbitration proceeding arises from a dispute between the Union and
the College over the interpretation of Article 2 of the "Academic" Collective Agreement.
Article 2 reads as follows (emphasis added):
~ · Article 2 - STAFFING
2.01 The Colleges 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 26, Partial-Load Employees,
subject to such operational requirements as the quality of the
programs, attaimnent of the program objectives, 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 objectives, the need for
special qualifications, and enrolment patterns and expectations.
2.03 B The College will not abuse the usage of sessional
appointments by combining sessional with partial-load service
and thereby maintaining an employment relationship with the
College in order to circumvent the completion of the minimum 12
months sessional employment in a 24 month period.
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2.03 C If the College continues a full-time position beyond one
full academic year of staffing the position with sessional
appointments, the College shall designate the position as a regular
full-time bargaining unit position and shall fill the position with a
member of the bargaining unit as soon as a person capable of
performing the work is available for hiring on this basis.
The dispute involves the application of Article 2. 02 to certain employees
and courses in the College's "Continuing Education" division. The union says that
Article 2.02 applies to those employees and courses, while the College says that Article
2.02 does not apply.
Article 2 deals with the way in which the College does the "staffing" for
its education programs - which is to say, how the College goes about establishing
teaching positions and making teaching assignments for College employees. Article 2
requires the College to give preference to regular, full-time, teaching positions, over
"partial load" teaching positions ("as defined in Article 26 Partial Load Employees") or
"sessional" (short term) teaching positions. The College's staffing decisions must reflect
this "full time preference", unless there are "operational requirements" which justify the
use of partial load or sessional positions/teachers, instead of regular, full time,
Positions/teachers.
(The term "partial load employee" is defined in Article 26.01B of the
collective agreement, to mean "a teacher who regularly teaches for more for than six and
up to and including 12 hours per week on a regular basis". The term "sessional"
employee is defined in Article 1.01 of the agreement, to mean someone who has a
, ~. teaching appointment for not more than 12 months, in any 24 month period. The term
· ' "part-time" refers to a teacher who teaches 6 hours per week or less.
"Partial loaders" are in the bargaining unit (again see Article 26); while
"sessionals" and "part-timers" are not in the bargaining unit.)
Articles 2.02, 2.03A, 2.03B and 2.03C address the staffing issue in
somewhat different ways, but their general purpose is the same: they enhance the job
opportunities for regular, full time, teachers, and they discourage the erosion of full time
work opportunities, through the subdivision of teaching work into "smaller pieces",
which are then distributed to employees as "partial load" or "sessional" teaching
assigyanents. Article 2 provides that unless there is. an operational rationale for such
"lesser" teaching assignments, the College is expected to meet its teaching requirements
with regular, full time employees. Or as Article 2.03 says more clearly: there is a
preference for regular full time bargaining unit positions. Accordingly, adherence to
Article 2, may involve an examination of work assignment choices, to see whether that
work can be "bundled up differently" into regular full time jobs, instead of sessional or
partial load jobs.
To be clear: Article 2 does not prevent the College from using sessional or
partial load employees to do teaching work. The collective agreement specifically
contemplates such teaching assignments. The employer has choices. However, Article 2
.... may require the College to explain and justify those choices, on "operational" grounds;
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and, in fact, Article 7.02 (vi) of the collective agreement contemplates a forum where the
union can seek such justification for the way in which teaching positions have been
structured. Article 7.02 (vi) provides that at the "Union-College Committee":
...if requested by the Union Local, the College shall explain its
rationale for its application of Article 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.
[emphasis added]
Article 7.02(vi) provides an opportunity for the union to examine the
employer's rationale for particular work assignments, and to make representations about
how things might be done differently, so as to create more full time jobs.
Put differently, Article 2 is about "bundling up" teaching work in a way
that will benefit the union's core constituency of full timers, rather than having that
teaching work done by employees who are not in that core constituency, or are not in the
bargaining trait at all. The provision creates a "preference" for "bigger", more regular,
and probably more remunerative, work assignments. It also codifies a union interest in
tracking the work that is currently being done by partial loaders (who are in the
bargaining unit), or by sessional employees (who are not in the bargaining unit), but
which might be done by full timers - an interest that may be translated into a union
request for an explanation under Article 7 at the Union-College Committee, or a union
request for the creation of more full time jobs, under Article 2.
In the result, Article 2 encourages the creation of more regular full time
positions, instead of having the teaching work done by sessionals or partial loaders.
However, Article 2 does not necessarily benefit the partial load or sessional employees
whose jobs may be eliminated to make up such full time positions. A partial loader or
sessional may benefit if s/he is the one who ends up with any full time job that is created
pursuant to Article 2; but Article 2 does not, in itself, command that result. Nor does
Article 2, by itself, produce a "job" for any particular bargaining unit member. Rather,
the clause is "about" expanding the number of full time job opportunities for the
bargaining unit as a whole, and limiting the College's ability to "unnecessarily" (i.e.
without operational justification) subdivide the "teaching work" that the College hires its
employees to do.
***
The instant case concerns the application of Article 2.02, (the preference
for "full time teaching positions" over "partial load teaching positions") to certain "credit
courses" in the "Early Childhood Education" ("ECE") program, in the "Continuing
Education Department" ("distance learning"), at the College's Brockville Campus. We
shall have more to say about these courses and programs later. For present purposes it
suffices to say that, in the Union's submission, there are enough hours of "teaching work"
being regularly done by two partial load individuals, in connection with these ECE
"credit" courses in Continuing Education, to justify the creation of at least one full time
faculty position. In the union's submission, that is what Article 2.02 requires.
The union focuses on the positions of two employees who were regularly
working 12 hours per week, (i.e. ostensibly at the "partial load" level of hours as defined
in Article 26) in the ECE program, given through Continuing Education. The union says
that the "teaching work" being done by these two employees (the union's description of
what they were doing), involves the delivery of "credit courses", which "count" towards
a regular ECE diploma; and as the union sees it, these ECE credit courses in Continuing
Education are no different from the ECE credit courses that are taught for the same
academic credit, in the regular day school program, by regular members of the
"academic" bargaining unit. In both cases, (as the union sees it) the employee is
responsible for delivering the course, and the student masters a body of subject matter,
which gives her an academic "credit", towards a recognized College diploma. The course
content and the course outcome are the same, whether the course is delivered through the
regular day school program, or it is delivered through a correspondence course in
Continuing Education.
Accordingly, the Union says that when the College is making staffing
decisions with respect to these credit courses given through Continuing Education, the
College is required to recognize the contractual preference favouring full time teachers
and full time teaching positions, over partial load teaching positions. In the union's view,
that means combining the two "partial load teaching positions" that were held by the
target individuals in this case, in order to create one regular, full time position. The union
says that, at the very least, the College is obliged to consider whether it is operationally
feasible to do this, and to justify, on operational grounds, why it cannot be done.
The union's position is that, absent some countervailing operational
rationale, the College must give preference to full time teaching positions/assigmnents
over partial load positions/assignments - which, in the union's submission, the College
has not done for the ECE credit courses at issue here. Instead, for the period to which the
grievances relate, the College continued to employ two individuals in partial load
teaching positions - each working 12 hours per week. Moreover, in response to the
union's grievances based upon Article 2.02, the College took the position that the two
individuals and their work were outside the ambit of the bargaining unit and the
collective agreement altogether, so that Article 2 could have no application at all.
In other words, a union request for the application of a particular clause in
the collective agreement, produced the response from the employer that none of the
· clauses in the collective agreement applied to these individuals or to their work, and that
there was therefore no obligation to bundle up that work into a full time job.
The College replies that the Union's grievances (there are two of them) are
misconceived. In the College's submission, Article 2.02 does not apply to the work that
these individuals are doing in Continuing Education, or to the individuals themselves,
because the employees in question are, as the employer describes it, "pure continuing
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education employees", who fall outside the scope of the bargaining unit; and it was never
intended that Article 2.02 should apply to them or to their work.
In the College's submission, this conclusion can be gleaned from both a
reading of the collective agreement as a whole, and from a consideration of the way in
which Continuing Education and correspondence courses "fit" within the collectively
bargained scheme. It flows, in particular, from Article 27, which exempts Continuing
Education courses from core provisions of the collective agreement, unless such courses
are part of the regular work assignment of a full time employee. And it is al~o evident
from the kind of work that the employees were doing in this case: overseeing the delivery
of correspondence courses, where there is no 'face to face' instruction or regular
classroom attendance. The College points out that while the course content may be the
same, the course delivery and the employee's job functions are very different.
The College says that when one considers that general background, and
when one looks at the collective agreement as a whole (but particularly Article 27), the
inescapable conclusion is that Article 2.02 does not apply to these "pure Continuing
Education employees", or to these "correspondence courses" in Continuing Education -
even though they are "for credit". In the College's submission, the union's assertion in
this case is inconsistent with the terms of the collective agreement, read as a whole, and
also flies in the face of established practice.
· - In the result, the College says that there is no obligation to apply Article
2.02 to these courses in Continuing Education, and it is not obliged to "cobble together"
.. Continuing Education courses, so as to make up a full time work assignment. As the
' ~ College sees it, the fact that the courses in questions are "for credit" is irrelevant. In the
College's submission, Article 2.02 has no application to the situation that gave rise to
these grievances, so that both grievances should be dismissed.
In summary then, this case involves the purported application of only one
provision of the collective agreement ~ Article 2.02 - to some "credit courses" given in
the College's Continuing Education department. However, because of the way in which
the argument unfolded, it also requires us to consider certain other provisions of the
agreement, as well as to look at the "scope" of the bargaining unit itself (i.e. who and
what the collective agreement applies to). Moreover, as we will see later on: "Continuing
Education" i_s given some special treatment under the collective agreement; and, there are
a number of arbitration decisions that explore this theme as well.
A heating in this matter began in Kingston, Ontario, on September 23,
· ' 2003, and was concluded on May 18, 2004. The parties were agreed that this board of
arbitration has been properly constituted under the terms of the collective agreement, and
that it has jurisdiction to hear and determine of the matters in dispute between them.
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The factual background is not substantially in dispute - although the
parties have very different views about how the collective agreement applies to those
facts.
II - Some Background
St. Lawrence is a College of Applied Arts and Technology, with campuses
at Brockville, Cornwall and Kingston. The Union is the statutory bargaining agent for
two groupings of employees ("bargaining units") who work at the College. Collective
bargaining between the College and its employees is governed by the Colleges Collective
Bargaining Act, ("CCBA").
In accordance with provincial bargaining under the Colleges Collective
Bargaining Act, the local parties have become bound, over the years, by a series of
collective agreements. The collective agreement relevant to this case, is the "academic
agreement" which ran from 2001 to 2003.
,
For convenience, certain portions of the academic agreement and the
CCBA, have been reproduced in the Appendix to this award.
Like other so-called "community colleges", St. Lawrence College offers
programs of career-oriented, post secondary education and training, tailored to the needs
of local communities. Section 2 of the Ontario Colleges of Applied Arts and Technology
Act, 2002, stipulates the objects of such colleges as follows:
2(2): The objects of the colleges are to offer a comprehensive
program of career oriented, post secondary education and
training, to assist individuals in finding and keeping employment,
to meet the needs of employers and the changing work
environment and to support the economic and social development
of their local and diverse communities.
2(3) In the carrying out its objects, a college may undertake a
range of education-related and training-related activities,
including but not limited to (a) entry into partnerships with
business, industry and other educational institutions; (b) offering
its courses in the French language where the college is authorized
to do so by regulation; (c) adult vocational education and training;
(d) basic skills and literacy training; (e) apprenticeship in-school
training; and (f) applied research. [emphasis added]
These statutory provisions give some "flavour" for the wide-ranging
educational and instructional activities, in which a community college and its employees
may be involved from time to time.
The educational programs available at St. Lawrence College are described
on the College's web site, and in its published catalogue, which sets out the course
offerings that are available to students, as well as the diplomas or certificates that can be
eamed by taking those courses. The promotional material also describes the employment
opportunities which may be open to graduates who complete these programs - noting
that, in some instances, a College diploma may be necessary to meet provincial licensing
requirements or to hold a supervisory job in certain regulated institutions. A College
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diploma may also be necessary for some forms of provincial accreditation, or to become
a member of some professional associations.
The College is committed to "life long learning", and therefore tries to
respond flexibly to the needs of the local community. Accordingly, some of the
diploma/certificate programs are offered either as a traditional, full-time, "in class"
program, or alternatively, on a part-time basis, as correspondence courses, or "on line
learning", through the department of Continuing Education.
However, whichever learning model the students choose, the students
enrolled in these "for credit/diploma programs" can take many of the same courses, cover
the same core subject matter, acquire the same body of knowledge, get the same
academic credits, and ultimately earn the same diploma as the students who take the
courses in the regular day school program. There may be more course offerings available
for students in the regular full time day school program, so that those regular students
have more course choices on the way through; however insofar as credit courses and the
ultimate diploma are concerned, it is the pace and the "delivery system" that are different
- not the program outcome. In either case, students take a number of credit courses, that
entitle them to the recognized diploma. The credit courses available through Continuing
Education have the same content and credit as those availablethrough the regular diploma
program, and the diploma earned is the same, as well.
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~ Early Childhood Education (ECE) is one of the programs (we were told
that there are a number of others), where a student can obtain a diploma either by
enrolling in the traditional, full time, "in class" program, or, alternatively, via "distance
, learning", where the courses are delivered by correspondence (augmented by
' individualized interaction with the College employee responsible for overseeing the
course - see below). The ECE Diploma Program, is described in the following excerpts
from the College's promotional material (Exhibit 3):
Early Childhood Education
The Early Childhood Education program prepares graduates to
work with children from birth to age 12 and their families in a
variety of early childhood settings. The Early Childhood program
compliance the radical study with practical experience in a variety
of unsupervised field placements.
Early Childhood Education - distance Education: the ECE
diploma (0682) can be obtained throu~,h "distance learning" by
.... part-time or full-time study .... [emphasis added]
Certification: Early Childhood Education Diploma. Upon
successful completion of this diploma program, the graduate is
eligible to apply for certification with the Association for Early
Childhood education, Ontario.
Employment Opportunities: graduates of the Early Childhood
Education program can expect to find employment in the licensed
childcare centers, homecare agencies, family resource centers and
the school-each child care programs. Graduates may also work as
nannies or provide childcare in their own homes. Graduates with
two years experience in a licensed childcare program are qualified
to become a supervisor on duty Day Nurseries Act.
Part-time Studies > Correspondence > Human Studies >
Early Childhood Education Diploma
,, Note: St. Lawrence College also offers a full time in class
program in early childhood education. For details of the Full-
.... time program, visit our Full-time section.
This Correspondence program is organized to meet the needs of
mature students who are working during the day or who are
unable to take the program on a full-time basis and find it more
convenient to participate in individual study. Students can
complete this diploma in a three or four years through the part
time program. Not all required courses are available through
correspondence.
Certification: the college will award a diploma upon successful
completion of all listed requirements.
Field placement: while every effort is made to accommodate
individual students learning needs, the field placements require
more flexibility on the students part as we are invited guests of
the agencies. The needs of the children and center are the first
priority.
The calendar contemplates alternative ways by which a student can obtain
an ECE diploma. However it is wrong to regard these as mutually exclusive options,
because (we are told) there is flexibility within each one, and students are permitted to
move between the two delivery systems. Since the courses are the same, there is nothing
preventing a regular full-time day student from picking up one or more courses "by
correspondence" through the "distance learning" unit; nor is there anything preventing a
student who has acquired some courses through "distance learning", from acquiring other
courses in the regular day school program. The student can embrace whatever option
meets his/her needs.
As noted: the courses under review in this case are given for "academic
credit". They "count" towards a recognized diploma; and there is no evidence that the
approval for such courses (i.e. what it takes to make them "credit" courses), is any
different, whether they are delivered in the day program or through Continuing
Education. Nor is the subject matter or learning outcome any different. And in either
case, (as we understand it) the program is financed through student fees and/or by
funding from the provincial government.
We do not have the details of this financing. We mention this factor,
because it was mentioned in the College's replies to the union's grievances. Those replies
read as follows [emphasis added]:
The partial load contract hours you identified at our meeting are
not being taught in a full time college program. The ECE activity
in question is operating through Continuing Education and is
funded with the CE rate of funding. It is thus not contemplated in
the Collective Agreement to be staffed with full-time faculty in
accordance with Article 27.16
oo.
I understand and appreciate your concerns when viewing the issue
strictly on the basis of partial load contract hours associated with
the program. Upon review of the collective agreement, it is clear
to me however, that since the ECE activity in question is not
being taught in a full-time college program, but rather through
Continuing Education and at the reduced CE rate of funding,
there is no requirement that the workload be staffed with full time
faculty.
As will be seen: the College is drawing a distinction between a full time college program,
and what is being done in Continuing Education. The suggestion is that because what is
"being taught" (the employer's wording) in Continuing Education is not part of a full
time program and has different funding arrangements, the staffing provisions have no
application.
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David McFadden is the Director of Student Services, Continuing
Education and Training, at the Brockville campus. Mr. McFadden oversees the "distance
learning unit", and he explained how the ECE correspondence program works.
The ECE diploma program consists of 28 credit and 2 non-credit courses,
that may be offered 12 months of the year, in any of three, 4-month semesters. The
majority of these courses are offered in every semester. However, whether a particular
course (especially a higher-level course) is available or not, may depend upon student
registration. The College responds, to some extent, to student demand; and that may not
be known until shortly before the courses are scheduled to begin.
In each semester, students can take a single credit course or several,
depending upon their own inclination and ability. For example, someone already
employed in the field may have limited time for taking courses, and therefore may choose
to take them at a slower pace. On the other hand, because the "distance learning" courses
are available 12 months of the year, a keen student can take a number of courses at the
same time, and can proceed through the diploma program quite quickly (she can "fast
track" as Mr. McFadden put it). No doubt that is why the descriptive material in the
calendar and on the web site, describes the "correspondence/distance learning" model, as
involving either full time or part-time study.
The courses in "distance learning" are delivered either by
"correspondence" (see the description below), or, in a very few instances, "on line". The
entrance requirements are the same, whether the course is taken in the regular day school
program, or by correspondence. In order for a student to enrol in the ECE diploma
course, the student must have first completed a high school diploma; and that is so
whether the program is taken during the regular day school program or via
correspondence courses through Continuing Education.
Registration in the correspondence courses typically begins 4-6 weeks
before the beginning of each semester, but the precise course offerings and "teacher"
workload cannot be finalized until quite late in that process. That said, most of the ECE
courses have been avairable every semester - although the number of students taking
them may vary. According to Mr. McFadden, there is more fluidity and less certainty
than in the regular day school program. Enrolment occurs later and is harder to predict.
To enrol in an ECE correspondence course or program, the student
contacts the "ECE clerk" at the Brockville campus. The clerk identifies whether the
registrant is a first time or returning student, gathers the necessary registration
information, confirms the payment of the required fee, then arranges for the course
material to be sent to the student by mail. Once the student is enrolled, the list of
registrants is forwarded to the College's Kingston campus, which is where the regular full
time, "in class", program is mounted. Mr. McFadden estimated that there may be as many
as 450 student "registrations" per semester, but because a student might take more than
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one course, there might be only 250 ECE diploma students, doing their course work by
distance learning/correspondence.
We have no precise evidence of the number of diploma-seeking ECE
students in the "distance learning" system, or in the regular full time "in class program" -
or what proportion of students acquire their diplomas through Continuing Education.
Students can move back and forth between the two, in accordance with their needs; but
we do not know how much movement there is, or the extent to which a regular day
student might "pick up" a course via Continuing Education. We only know that students
in the regular program can take courses in Continuing Education, towards the same
diploma, that can be earned via either "delivery system".
The College publishes a listing of the course offerings and the staff
member who will be responsible for them in Continuing Education; so that students will
have that information when making their course selections. The catalogue also indicates
the hours of student effort that are expected, and the course fee (e.g. Introduction to Early
Childhood Education - 45 hours - fee: $335.50). The recorded hours (30 or 45) of
student effort for a distance learning ECE credit course, is the same as the number of
classroom hours per semester for a student enrolled in that same course in the regular "in
class program"; so in this respect, the student effort is supposed to be equivalent,
whichever "delivery system" is used. The ECE courses in the two streams also have the
same course number, and course description, and course content.
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A distance leamer can acquire either all or substantially all of the courses
that she need for her diploma (the evidence is a little unclear on that point); but in either
event, the learning can be substantially done "by correspondence", the course subject
, · matter is the same, and so is the learning outcome.
In the foregoing discussion, we have talked about "correspondence"
courses. But that label is something of a misnomer, because the student does not
necessarily learn the course material entirely on her own. The College provides a staff
member to guide, and assist, such learning.
It is these College employees (and their work) that are the subject of this
case.
Following registration, the ECE correspondence student receives a bundle
of textbooks and course material, which is sent out to her, along with a package of course
~ assignments. Over the course of the semester, the student works her way through the
assigned readings and does the prescribed assignments, which are sent to the "evaluator"
(the College's label for the staff member overseeing the course), by ordinary mail, fax, or
~ ~ e-mail. The staff member responsible for delivering the course, (we will sometimes refer
to her as "the evaluator" or as the "course director"), then reviews the student's work,
assigns a grade, makes whatever comments are necessary, and returns the assignment to
the student who sent it in. Students can arrange for follow-up discussions with that staff
member, should that be required; but it is up to the student to initiate such contact. At the
end of the c°urse, the student makes arrangements to write an examination at the College,
which is supervised by the Proctor.
The "course director" (our own label for the employee responsible for
overseeing the correspondence courses and evaluating the students) is expected to review
the student assignments, provide "feedback", and be available by e-mail, fax, or
telephone, to discuss any issues which a student wishes to raise about the course
materials, or the assignments, or the evaluation, or the feedback. That is the essence of
"distance learning": the students do not have to come to the campus to attend formal
classes; rather, they work through the course material on their own, and with the
personalized assistance of the course director. The face to face contact with a group of
students in a classroom, is replaced by individualized contact by fax or telephone or
email. The students move though the course material on their own; assignments are
graded and returned, with comments; and additional communications or explanations
occur, only if the student initiates them. Electronics bridges the distances; and allows the
College to reach out to students who are geographically dispersed.
Staff members with more than one course to oversee, are expected to be at
the College for at least three hours per week, so that students can contact them there; but
for the rest of the time, they can work from their homes. Staff members responsible for
only one course, may work from their homes exclusively, and may not come in to the
college at all.
There is no direct evidence about the course director's qualifications, but
in our view, it is reasonable to assume that they are qualified to oversee these credit
courses, and to help students out with the subject matter - just as the regular college
. professors are qualified to teach the same subject matter, in the same credit courses, given
in the regular day school program. No one suggests that there is any difference in the
qualifications necessary to deliver these credit courses - be they in the regular day
- .' school, or in Continuing Education; and we are not inclined to suggest that they are not
qualified to assist students in whatever problems they encounter with the material.
~-~ That said, we have no evidence about the recruitment or experience
required of the course directors. We know that the two alleged "partial loaders" in this
case, were associated with the ECE Diploma program for some years (one for many
~- years); but we do not know what role, if any, they played in putting together the course
packages, assignments and so on. We do know that, for Mr. McFadden's tenure (since
·., 2000), no full timer has been involved in delivering the ECE courses through Continuing
~ Education. We also know that the two individuals were paid $55/hour and $ 86/hour for
what they were doing (see below).
As we have mentioned above: there are set consultation times at the
College, staggered throughout the week, when the evaluator/course director has to be in
an office at the College, with a College telephone and fax number, so that students can
contact her there. Students are advised of this availability, and of the time when the staff
member can be reached at the College. However, in recognition of the fact that the
course director may also have to communicate with students from her home, the College
supplies printer cartridges, and picks up the individual's home telephone and fax charges.
The frequency and volume of these student communications, depends
upon the needs, and the inclination, of the student - and, of course, on the time which the
staff member is prepared to devote to these individualized interchanges. We were told
that there is no limit on such student contact: some students never do it; while other
students make frequent contact, and expect to be called back or contacted by e-mail. The
process is flexible, individualized, and largely undocumented, so it is difficult to .,
determine how many hours the staff member actually devotes to overseeing the course, or ·
helping out students on an individualized basis.
The number of hours that the staff member puts in, may vary from week to
week; but according to Mr. McFadden, the course overseers would say that they work
more hours than the number of hours that are formally stipulated and paid for. But, we
have no direct evidence about how many hours these individuals actually put it in, either
in dealing with students or otherwise doing work in connection with the course.
The College prepares no "work load documentation" fOr the course
directors (as it does for its regular, full time bargaining unit employees); nor does it
stipulate any formal number of "contact hours" with students. On the other hand, there is
no reason to believe that the course directors are idle, or that the problems that the
students encounter with the subject matter are markedly different from those encountered
23
-~ by the regular ECE students, who must learn the same subject matter, in a regular
' · classroom environment.
Program registrants do not have to take courses in the regular stream,
daytime program. Nor, as things, now stand, do any regular college professors (i.e. those
who teach in the "regular'; ECE program) teach in the ECE correspondence/distance
learning program. Students may move back and forth, (again: we do not know how much
they actually do this); but as things' now stand, staff members do not. There is no
interchange between the employees teaching credit courses in th6 regular day school
program, and the employees who are responsible for the same ECE credit courses given
through Continuing Education.
Mr. McFadden did not know whether that has always been the case. He
said that the ECE program has been run for a number of years, but he has only been
involved for four years, and during that period, there have been no regular (i.e. full
time/bargaining unit) faculty members involved. Mr. McFadden testified, however, that
one of the "partial loaders" whom the union identified in this case, has been with the ECE
program for at least 15 years; so there appears to be a degree of employment continuity
for at least some employees who work in Continuing Education. We do not know
whether that is anomalous.
The union does not suggest that a bundle of"ECE credit course work" has
been overtly "taken away" from some regular faculty member, and then "given" to
someone overseeing an ECE correspondence course in Continuing Education. There has
been no such overt transfer of work, away from particular individuals in the bargaining
unit. No one has directly "lost something" in that way; nor was the grievance triggered by
any particular "leakage" of work "out of the bargaining unit". Indeed, at the time that the
union filed its claim, the union thought that the two partial loaders were actually in the
bargaining unit - albeit in partial load jobs.
On the other hand, the union says that the core of its bargaining unit might
be somewhat "bigger" (here by one full time bargaining unit position), if the union is
right with respect to its proposed interpretation of the collective agreement, and the
College is obliged to consider "bundling together" work, so as to create a full-time
position, "teaching" credit courses, in Continuing Education.
We say "might" because, of course, even if Article 2.02 applies to this
work and to the target (ostensible partial load) employees in question here, there may be
bona fide "operational" considerations which would impede such "bundling together" of
work functions. The particular kind of student interaction with the course directors that
"works" on a partial load basis, with two staff members, may not "work" if a single
individual were expected to do it, "full time". Likewise, it may be open to the College to
deliver the program without using such "partial load" (i.e. 6-12 hour/week) positions at
all (see below).
25
Once student demand is determined, the College must allocate work to the
various evaluators/ course directors, who, we were told, have different areas of expertise.
That is one of the factors that is taken into account when course assignments are
distributed.
Individual evaluators do not deliver all 28 courses in the ECE diploma
program. Rather, courses are broken down into different disciplines and areas of interest,
then allocated in accordance with the expertise and availability of the "course directors".
Mr. McFadden recalled that in 2002, there were two evaluators/course directors with 12
paid hours/week, and two evaluators/course directors with 6 paid hours/week, and a part
time clerk. He said that, in the following year, there were three additional individuals
with 3 paid hours/week (or perhaps somewhat less, but "rounded up" to three paid hours,
in order to keep these individuals interested).
Exhibit 4 also confirms that, for at least one semester in 2002, there were
two individuals, working 12 paid hours per week, delivering ECE credit courses in
Continuing Education. It is these two employees (the "target employees", so to speak),
and what they were doing, that led to the grievances that are currently before us.
Mr. McFadden explained that the complement of con-ed employees
depends upon the College's needs, at any given time. However, for the time period to
which the grievances relate, there were two "evaluators"/"course directors" regularly
working 12 paid hours per week, overseeing credit courses in the ECE diploma program,
26
given through Continuing Education - which is to say, working at the "partial load" level
of hours, as defined by the collective agreement (if, indeed, the collective agreement
applies to them - which the College says it does not).
Mr. McFadden said that he would prefer to staff the program entirely with
"part-time employees" - that is, with persons who are employed for 6 or fewer hours per
week. Such part-timers (6 hrs per week or less) are excluded from the bargaining unit; so
that, the College would be free to strike whatever bargain it wishes with these
individuals, and need not adhere to any of the provisions of the collective agreement. In
this respect, partial load employees (in the bargaining unit) are quite different from part
time employees (out of the bargaining unit).
In a previous paragraph, we have coined the term "course director .....
because, in our view, that is a rough description of what the individuals responsible for
the course actually do. They oversee the delivery of the course content, and help students
out with their learning, on an individual basis. However, we might note that in Exhibit 5,
a document which was prepared by the College and entitled "ECE INSTRUCTOR
INFORMATION", the College provides students with information under headings for:
"TEACHER", "COURSES", "EXTENTION", HOME PHONE, and EMAIL
ADDRESSES. Students use this information to contact their "teacher" or "instructor",
either at the college or at home.
,~.~ The names of the "ECE course evaluators" in Continuing Education are on
.... this list, and as noted, are referred to by the College, as "teachers" or "instructors".
i
The number of paid hours (the notional assigned teaching time) to be
assigned to staff for each ECE course in Continuing Education, is determined by a
"formula" which appears to be roughly linked to the way that the course might be dealt
~ with, if it were given in the regular, day school, program. The formula looks like this:
"' number of students] x [course hours of effort set out in the calendar,
-~ which is 30 or 45] + 30 (a proxy for the ideal normal regular class size:
· , 30 students per class) + [ # weeks in the semester] --= [# assigned
hours of work per week that the evaluator is paid for]
Mr. McFadden testified that this was the "rule of thumb" which he
~ . inherited when he took over his present position about four years ago; and it is that rule
which is used to determine the number of hours per correspondence course that will be
~. assigned to a teacher and paid.for, on that course. The individual teacher's contract
. ' salary is based upon those assigned hours, and is calculated as follows:
Total hours oer week (i.e. course hours per the rule of thumb above x
number of courses taught) x hourly rate x # weeks in the semester
-- $ oavment oer semester
According to Mr. McFadden, the number of the paid hours (calculated by
the rule of thumb), for the ECE courses taught by a single individual, has never exceeded
12 paid hours per week. These individuals have never worked beyond the "partial load"
level of hours, as defined in the collective agreement, and measured as above - although,
as we have already mentioned, we do not know how many work hours the course director
actually puts in, because no one keeps track of that.
28
It will be recalled that under the collective agreement, a partial load
employee is a teacher who teaches "more than six, and up to and including 12 hours per
week on a regular basis". Accordingly, someone teaching ECE credit courses for 7-12
hours per week in the regular day school program, would be treated as a partial load
employee, who is in the bargaining unit and covered by the collective agreement.
Conversely, someone who is working 6 or fewer hours per week would be a treated as
part-timer, and would be excluded from the bargaining unit altogether (see also Schedule
1 of the CCBA, reproduced below in the Appendix) even though such part-timer might
be teaching "credit" courses.
There is no evidence that bargaining unit employees have a monopoly on
teaching "credit courses"; but, by the same token, there is no evidence about how much
teaching of "credit courses" is actually done by employees excluded from the bargaining
unit either - or who typically does that kind of teaching of credit courses (part timers or
sessionals). Likewise, there is no evidence about whether, or the extent to which,
bargaining unit employees teach courses that are not given for credit. And there is also
very little evidence about the extent to which credit courses are actually given in
Continuing Education. We only know that some College diploma programs are delivered
that way, and in consequence, a number of credit courses can be taken through
Continuing Education - either by students exclusively in that program, or by regular day
students who choose to pick up a course in that way.
29
Accordingly, it is difficult to gauge how unusual the situation before us
actually is - that is, employees working 12 hours per week, in connection with credit
courses, given through Continuing Education, as part of an entire diploma program, that
can be achieved (either completely or substantially) via Continuing Education.
According to Mr. McFadden, the ECE Correspondence program was
historically staffed by using a combination of employees working 6-12 hrs/week, and
employees working up to, but not more than, 6 hrs/week. Historically there have been no
"full time" employees. And that is still the case: there are no "full timers", as that term is
used under the collective agreement; and the "impression" that we have from the
evidence, is that, numerically speaking, even "partial load" hours may be uncommon.
Mr. McFadden testified that the amount of work assigned to course
directors in the ECE Continuing Education program, never exceeds the partial load levels
(as measured by the rule of thumb mentioned above), and the documentary material
confirms his preference for true part-timers (whom everyone agrees are outside the
bargaining unit). So to have single individuals working at the "partial load level" may be
atypical.
Nevertheless, at the time of the Union's grievances, there were, (at least
from the union's point of view) ostensibly, two "partial load" instructors putting in 12
hours per week on a regular basis (i.e. people who worked enough hours to make them a
"partial loader", if the collective agreement definition in Article 26 applies to them (see
30
Article 2.02 and Article 26 in the Appendix). And, labels aside: there were two College
employees, who were responsible for the delivery of some ECE credit courses, and who
were working at least twelve hours per week on a regular basis. Moreover, these
individuals have been with the ECE program for number of years; and, it appears that, for
some period of time at least, they were being paid in accordance with the partial load
wage rates prescribed in the collective agreement. Their names also appeared on the
seniority lists produced under Article 27.12 of the collective agreement - which is what
sparked these grievances.
The parties were agreed that being named on this particular list does not
determine an employee's status or rights for the purpose of this proceeding, nor whether
the employee "should be" on the list at all; and the union does not argue that because a
person's name shows up on a list, the College is estopped from asserting - as it did in this
proceeding (see below) - that the list was in error.
However, the concession made with respect to the use of this particular
document was not a general "undertaking" that the union would not argue that the target
individuals were, indeed, partial loaders employees per Article 26 (which would appear
to be a prerequisite for Article 2.02 applying at all); and, in fact, both parties later argued
about that issue, and about the application of Article 2.02 to these individuals. Indeed, the
crux of the union's argument is that these target individual were partial load employees
within the meaning of Article 2.02 and to whom Article 2.02 applied, even though they
were teaching in Continuing Education in a non-traditional setting.
31
~ ' The union did not abandon that argument, or concede that the target
individuals were not "partial-load teaching positions, as defined in Article 26, Partial-
Load Employees" within the meaning of Article 2.02. On the contrary, the union has
always maintained that that was exactly what they were - which is why, in the union's
view, Article 2.02 applied to them, and to the ECE credit courses that they were teaching.
Be. that as it may, it appears that at one time, these ostensible partial
loaders were being treated by the College as/fthey were members of the bargaining unit.
' · Subsequently, though, the College took the position that they were not covered by the
collective agreement at all; and the College stopped including them on the personnel lists.
, . The College also decided that the personal wage rates for these individuals, should be
.... grand-mothered" at their then existing levels ($86/hour and $55/hour) - which, it
appears, were the levels prescribed in the collective agreement for partial loaders (these
numbers, we were told, exactly match the partial load hourly wage rates prescribed in the
collective agreement).
Mr. McFadden testified in his direct examination that the two individuals
were being paid like partial load employees because they worked between 7 and 12 hours
per week, and that the employee who was at the high $86/hr rate, got there because she
had worked for many years and had moved up the scale. He said that was the practice
when he arrived there.
32
In cross-examination he repeated his belief that the target individuals were
being treated as partial loaders and being paid at partial load rates in the collective
agreement; and he indicated that, while he was not 100 % sure, he assumed that the rates
came from academic scale spelled out in the collective agreement. Moreover, he did not
disagree with union counsel's suggestion that their rates are precisely what a step 4 and
step 16 partial load professor would make, as set out in the Article 26.04 schedule, found
at page 52 of the collective agreement. Then he said that he was not really sure of the
relationship between what the employees were paid and the collective agreement rates.
Mr. McFadden also testified that, as he understood it, a couple of people in
the ECE program paid union dues, because, he thought, they were being treated as partial
loaders at that time. He said that he had no idea how that decision came about, and that
relatively recently, the practice of deducting union dues has ended (which Cindy
Bleakney also confirmed - see below). Mr. McFadden said that he had no involvement in
the preparation of the Article 27.12 personnel lists.
We were told that all other teachers doing ECE Continuing Education
courses are now paid at a flat rate of $39.27/hour, regardless of how many hours they
teach; and that the two individuals at issue here have been "frozen" or "grand-mothered"
at their then existing rates. The College does not do SWF workload forms for any of
these employees, and apart from 6 % vacation pay, there are no benefits. The College
does not recognize any "contact hours".
33
We do not know what other benefits, if any, the two target employees
might have received over the years - i.e. before they were "grand-mothered" at their
existing wage rates. There was no evidence about that. So we do not know whether they
were being treated as "Article 26 partial loaders" in other respects.
Cindy Bleakney, is a Human Resources Consultant, who has been with the
College, since 1987. She has worked in the Human Resources and Payroll area since
about 1990. Given that background, we think it is fair to conclude that Ms. Bleakney is
familiar with the College's administrative practices and with the documentation used by
the College for labour relations purposes, even if she did not, herself, perform the clerical
functions necessary to create such documents.
According to Ms. Bleakney the rates of pay for Continuing Education
teachers, are entirely unrelated to anything in the collective agreement. Rather, these rates
are based upon the way in which the college treats non-union employees, and the pay
equity plan for non-union personnel. The two "grand-mothered" individuals (the ones
who prompted this grievance) are a historical anomaly.
· Ms. Bleakney testified that the Article 27.12 personnel lists (which are
supposed to include "all personnel covered by this [academic] Agreement") are prepared
by clerical support staff, who are members of the support staff bargaining unit; and, that
historically, those lists have been based upon the employees' payroll authorization forms.
According to Ms. Bleakney, the payroll forms do not identify, or distinguish between, the
34
types of program in which the employee is engaged. Nor do these documents identify, or
distinguish between, teaching "credit" courses versus "non-credit" courses.
Ms. Bleakney testified that, in her opinion, the Continuing Education
"partial loaders" mentioned above, were probably put on the personnel list contemplated
by Article 27.12 of the collective agreement, because the clerk responsible for compiling
the list, included every employee with a payroll authorization form that was "academic"
in nature, without regard to the particular program (here "Continuing Education") in
which the employee was involved. In her opinion, that is why the target individuals
appear on Exhibit 4a and 4b.
Ms. Bleakney, said that the documents have been prepared that way since
the mid-1990s. She also noted that the lists can be inaccurate; and that sometimes, they
will include (in error) support staff employees. The fact that someone's name appears on
the list, does not necessarily mean that it is properly put there.
For example, these lists were changed more recently, and some of the
names were deleted, when the College took the position that the Continuing Education
employees were excluded from the bargaining trait, and were not covered by the
academic collective agreement. As the College sees it, the College was merely rectifying
a "mistake", so that the paperwork would conform to the "correct" reading of the
collective agreement; because, in the College's view, the collective agreement does not
35
apply to employees teaching in Continuing Education, unless that teaching is part of a
regular full time teaching assignment.
Ms. Bleakney testified in her direct examination, that the issue of putting
the Con Ed employees on the Article 27.12 lists was discussed with the union, but she
wasn't sure of the timing of that discussion. According to Ms. Bleakney "we" [meaning
the College] told the union that they did not believe that Continuing Education was part
of the bargaining unit, or that the work was covered by the collective agreement.
" Ms. Bleakney testified in cross-examination that she believed that there
had been a number of discussions with the union along those lines (i.e. that Con Ed
employees were not in the bargaining unit or doing bargaining unit work), but that
possibly the first time that College took this position, was in response to the union's
claim in this grievance that these two (ostensible) "partial load" positions in the ECE
Correspondence program, should be combined into a single full-time position, in
· accordance with the contractual preference found in Article 2.
Ms. Bleakney testified that there were a number of grievances involving
the Article 27.12 personnel lists; and that probably the first time that the College said that
these specific individuals were excluded from the collective agreement, was in the
grievance procedure. She said that it would not have been discussed before that.
36
Ms. Blakeney testified that there were also other grievances about who
should be on the Article 27.12 personnel lists, which generated the same response. When
the union started raising questions about the application of the collective agreement to
these partial loaders teaching credit courses in Continuing Education (and ostensibly
being treated up to that time, as if they were "in" the bargaining unit), the College took
the position that they were not in the bargaining unit at all, that the paper work was in
error, and that "pure" Continuing Education employees were not covered by the
collective agreement.
In other words, the grievances prompted the College to look more closely
at the situation; and the College's position is that, when it did so, it discovered that (in its
opinion) the two target employees in this case, were being treated incorrectly, and should
not have been put on the personnel list after all. The union's questioning is what
prompted a change to the treatment and documentation for these employees.
We do not have a copy of the "academic" payroll authorization document,
to which Ms. Bleakney referred, and which, she said, the clerical staff had read or used
incorrectly, to slot the two target individuals into the list of "academic employees",
prepared under the collective agreement. Nor do we know to whom these "academic"
payroll documents have historically been applied. Or who considered them "academic".
We do know that the two individuals whose jobs sparked the grievances, are responsible
for the delivery of academic courses.
37
It is also interesting to note that, according to Ms. Bleakney, this same
kind of i.ssue arose - i.e. how to "characterize" some employees - in what might be
described as a "statutory context", when the College was called upon to prepare the
voters' lists, which are used for the "strike" and "final offer" votes required by section 59
of the Colleges Collective Bargaining Act. There, too, it was necessary to decide who
was, or was not, "in the bargaining unit", because only employees in the bargaining unit
are entitled to vote. And there, too, the College took the position that employees in
Continuing Education were excluded from the bargaining unit, so that they had no right
to vote, and should not be included on any voters' list.
Ms. Bleakney testified that in the course a recent round of bargaining, the
College had to prepare these voters lists, and that an issue arose in connection with
individuals teaching at "partial load levels" (i.e. measured by hours) in the "Occupational
Health" Diploma Correspondence program and in ECE through Continuing Education.
According to Ms. Bleakney, the College was using the employee union dues deduction
records for this purpose, and noticed that there were employees on the dues list who
should not be there, because they worked in Continuing Education. [Exhibit 6 is one such
list for October 2003, although she could not guarantee the accuracy of the information].
Ms. Bleaney mentioned, as an example, a Ms. Dukelow, who teaches in the Occupational
Health Correspondence program (and who is recorded on Exhibit 4a as teaching 12 hours
in that program - plus, it appears, an additional 6 hours for something called "medical
term"), and Ms. Saulnier who is one of the target employees involved in this case.
38
When this situation came to the College's attention, the College took the
position that these employees in these programs given through Continuing Education,
were not in the bargaining unit and therefore should not be included on the voters list;
and when it was noted by the union that their names were on the seniority list, and that
union dues were being deducted for them, the College removed them from the seniority
lists, and refunded the dues money. One of the individuals in question, (Ms. Saulnier) is
one of the target individuals in this case. The other individual works in another diploma
program, available through Continuing Education.
The College took the position that these individuals, were not part of the
bargaining unit, because they were working exclusively in Continuing Education; and
because they were not part of the bargaining unit, they were not entitled to cast a ballot in
a "strike" or "final offer" vote, prescribed under the Colleges Collective Bargaining Act.
It is not entirely clear how this "status" question was ultimately disposed
of. However, so far as we know, there was no adjudication of the issue by the Ontario
Labour Relations Board (which has the power to determine the composition of bargaining
units under section 81 of the CCBA), or by anyone else. What the incident illustrates,
however, is that both the statutory and collective agreement rights of College employees,
may turn upon whether they are included "in the bargaining unit" that the union
represents.
39
Ms. Bleakney also identified Ex. 7, which is a seniority list of partial
loaders and contains the name of one of the target individuals under review in this case.
However, Ms. Bleakney pointed out that this document is also prepared by clerical
bargaining unit members, based on information to which they have access, and in the
same manner as the Article 27.12 personnel list. Ms. Bleakney has no direct knowledge
of what they base their work on. All she could do was identify the format of the
information, collected by the College in documentary form.
Having regard to the totality of the evidence put before us, we are satisfied
.... that, for a time at least, some employees working in Continuing Education, were treated
as ordinary partial load teachers, who were members of the bargaining unit, and covered
. , by some provisions the collective agreement. The documentation and the oral evidence
~' are consistent in this regard. Then the College later revised its view, and decided that
some number of these individuals should not be covered by the collective agreement,
because they worked in Continuing Education; and the College changed the documents
· ~ accordingly.
However, as we have already mentioned, we do not know whether these
individuals, working partial load hours, but only in Continuing Education programs,
were being treated for employment purposes, fully and completely like other partial
loaders whose teaching was outside of Continuing Education. Our evidence regarding the
"employment treatment" of the target individuals (for example, whether they participated
in benefit plans) is quite fragmentary. Similarly, we do not know how anomalous it was
40
to have employees working at that level of hours; or whether, in historical terms, it was
an oddity.
In the foregoing discussion, we have been dealing with ECE credit
courses, that are given as part of "Continuing Education", and that lead to the same kind
of ECE diploma that would be attained by students taking the same courses in the regular
day school program. That is what the union's grievance is about in this case. However, it
is common ground that there are a lot of other kinds of courses available through
Continuing Education, and that those courses do not necessarily attract "academic
credit", or lead to a particular diploma or certificate.
The parties did not put before us the full range of courses and programs
available through Continuing Education. However, Exhibit 3 (from the web site) gives an
indication of what might be offered at one campus or another. The list includes courses
offered under the following headings: Applied Arts; Business; Computer Studies;
Customized/Contract Training; Creative/Fine Arts; Health Sciences; Human Studies;
Life & Leisure; Senior's Studies; Skill-Tech Labs; and Trades. (See also the very broad
mandate that a college has under its governing legislation).
Mr. McFadden testified that under the umbrella of "Continuing
Education", one finds not only "correspondence courses" like the ones here under review,
but also a whole range of courses where students come to the campus for learning
purposes ("bums in seats" as Mr. McFadden put it). Some of these courses involve
41
particular skills, while others would be of the "general interest" variety. For example,
Mr. McFadden mentioned courses in accounting, retail land assessment, or courses that
were necessary for certain kinds of "certification" required by provincial statutes. He also
mentioned courses that can be found in the regular full time program - noting that if a
student wished to complete his/her diploma, and was not enrolled in the full time
program, she could do so, through Continuing Education, on a part-time basis.
Mr. McFadden suggested that the courses given under the umbrella of
Continuing Education could range from skills-related or employment-related teaching, to
· - · such arcane subjects as belly dancing. It appears that others might be considered either
"general interest" or "skills based", depending on the needs of the student and the
purpose of the course. (For example, one of the arbitration cases put before us, involved a
.- non-credit course, learning about "photography" - which could be done either by
hobbyist seeking to improve his/her knowledge and technique, or by someone hoping to
use that body of information for an employment or business purpose, without necessarily
needing a formal credit).
We do not have the details of the full offerings in Continuing Education.
Nor do we know how many employees are engaged in "teaching" these courses. So we
decline to speculate. What can be said is that, (historically at least), many if not most of
the courses in Continuing Education have not been for "academic credit"; and as Mr.
McFadden confirmed, these courses are overwhelmingly taught by persons working 6
hours per week or less ("part timers" ). Moreover, since Mr. McFadden's preference is to
use "part-timers" whenever he can, there are probably quite a number of these "part time"
employees - who everyone agrees, are excluded from the bargaining unit for that reason
alone.
It does not seem to be disputed that no SWF documents have been done
for persons in Continuing Education. On the other hand, no SWF is required under the
agreement for partial loaders, or for tree part timers (who are excluded from the
agreement). Mr. Mc Faddden said that during his tenure, there have been no full timers
(measured by hours).
Mr. McFadden testified that a "SWF" workload document could be
created from the persons teaching in Continuing Education; but that given the fluidity and
uncertainty of the course assignments, it would not mean much. Mr. McFadden noted that
enrolment is much more uncertain for his programs, than in the regular day school.
Finally, we do not think that there is any dispute that there may be
advantages to the College if it can deliver its course offerings (whatever they are) outside
the scope of the collective agreement. Employees outside the bargaining unit can be
treated more individually and flexibly than employees to whom the collective agreement
applies; and there is no obligation to maintain collectively bargained wages and benefits.
And, of course, the College is entitled to use non-bargaining unit employees to do what
the union may see as "bargaining unit work", unless there are provisions of the collective
agreement which prohibit such use.
43
On the other hand, it is interesting to note that Article 2 itself stipulates
that the College is not supposed to circumvent the full time preference or "abuse" its right
to use sessionals - which suggests that there may be organizational advantages to using
employees outside the ambit of the collective agreement.
· . III -The position of the parties in a little more detail
As the union sees it, the grievance before us is actually quite simple.
Union counsel submits that, a couple of years ago the union had occasion
to examine a personnel list, that was prepared by the employer pursuant to Article 27.12
of the collective agreement. On examining that list, the union noticed that there were (so
it seemed) two "partial load" employees, who were responsible for credit courses in the
ECE diploma program, who seemed to be regularly attached to that program, and who
were regularly working for 12 hours per week. These individuals were not "sessionals",
and they were not "part-timers" either. They appeared to the union to be ordinary, partial
load teachers, in partial load teaching positions, routinely engaged in delivering ECE
courses, for academic credit, working 12 hours per week.
Accordingly, from the union's perspective, there were two "bargaining
unit members", working at the partial load level, "teaching" credit courses, in Continuing
Education; and in the union's estimation, there seemed to be.enough "academic work"
44
being done by these two "partial loaders", to warrant the creation of at least one full-time
teaching position. That is what Article 2.02 was about: giving a preference for full time
jobs, and potentially replacing partial load teaching positions with regular full time
positions; and, in the union's view, the facts seemed to justify its application - or at least
to require an "operational explanation" from the College, as to why a full time position
could not be created out of these two, 12 hours per week, credit course, "teaching"
assignments.
As the union saw it, unless there was some "operational reason" for
staffing these ECE credit courses with two "partial loaders", the issue was mostly one of
"arithmetic". Since there were two partial loaders, each "teaching" (again, the union's
characterization of it) "credit courses" for 12 hours per week, it seemed sensible to
suggest that these two partial load, 12 hours per week, for-credit teaching assignments,
might be combined into a single teaching position, involving 24 teaching hours per week
- which, as the union sees it, is a "full-time job": a job that is not "part-time", and is also
beyond the hours limit set in the definition of a "partial load" employee.
In the union's view, Article 2.02 encompasses bundling up work that is
being done on a partial load basis, so as to create a regular full time position; and here
there were two parcels of work - "teaching" academic credit courses - that in the union's
submission, were ripe for consideration under Article 2.02. So in the union's view, the
work encompassed by these two partial load teaching positions, should have been
combined into a full time job, unless there was some operational impediment to doing so.
45
The union maintains that view in the present proceeding.
· . The union argues that the two individuals under consideration here, were
"teaching" credit courses in a recognized diploma program, that are identical in content to
the courses that are available in the regular day school program; and in the union's
submission, this academic work was being done with sufficient regularity and intensity to
warrant the application of Article 2.02. There are two partial load teaching positions
involving the delivery of academic credit courses - the same credit courses as are given
'-- in the regular day program.
The union asserts that it is wrong to suggest that these courses are "self-
taught", or that there is no "teacher" for the pr0~.a, in,.'L-'~unsel submits that with as many
as 450 students taking credit courses through the distance learning program, there is a lot
of "teaching" going on; and the course directors are the ones doing it - albeit, not in a
regular classroom setting. Moreover, in the union's view, there is enough "teaching"
being done by the two target individuals in this particular case, to make up a full lime
teaching position.
When the work of these two employees came to light, there was no issue
in the union's mind about the "scope of the bargaining unit". The employees in question
were on the Article 27.12 list (see the Appendix) of employees teaching credit courses,
46
and they were ostensibly in the bargaining unit - albeit as partial loaders. Which is how
the union came to know about them in the first place. '
The "bargaining unit issue" and the application of the collective agreement
to Con Ed, only surfaced when the College raised that argument as a defence - asserting
(as the College also does here) that Article 2 had no application to the two employees and
their courses, because (as the College put it then and' now): these employees worked
exclusively in Continuing Education; they were therefore outside the bargaining unit; and
accordingly, they were not covered by the collective agreement at all.
That was the position articulated by Ms. Bleakney during the grievance
procedure; and consistent with that view, the College changed the way that it was treating
certain employees in Continuing Education.
In response to this "defence" the union asserts before this Board, that the
bargaining unit to which the collective agreement applies is defined by the Colleges
Collective Bargaining Act; and the statutory definition, found in the CCBA, is not framed
in terms of work or program. It applies to employees who teach; and there is no exclusion
from the statutory bargaining unit for employees teaching in Continuing Education. Nor
is Article 1.01 - the recognition clause of the collective agreement - framed in terms of
work or program. Neither the CCBA nor the recognition clause even mention
"Continuing Education" - let alone create some exemption or exclusion for Continuing
Education teachers.
47
The union submits that in neither the statute nor the recognition clause of
the collective agreement, is there any exclusion from the bargaining unit of employees
teaching academic credit courses in Continuing Education programs; and in the union's
submission, there is no legal basis for such additional exclusion..
Moreover, in the union's submission whether the employees doing the
work are outside the bargaining unit is not determinative in any event, when one is called
upon to consider the application of Article 2.02; because, in the union's submission,
Article 2.02 applies to that body of work, whether the individuals doing it, are "in the
unit" or not. In the union's submission, that is what Arbitrator Knopf held in her 2002
Algonquin case (see below). The union says that in Algonquin, the arbitrator took
jurisdiction to consider the application of Article 2 to Continuing Education employees,
despite the employer's argument that the collective agreement did not apply to the
Continuing Education department.
The union argues that classroom attendance cannot be the litmus test for
the application of the collective agreement - despite the arbitration cases which seem to
· accord special status to courses in Continuing Education. The union argues that the
application of the collective agreement does not depend upon whether there is a different
model for teaching and learning. And in any event, whatever weight might be given to
the "non-traditional mode" of teaching and learning adopted in these correspondence
48
courses, it is trumped by the fact that what we are dealing with here, are academic credit
courses, taken in pursuit of a regular academic diploma.
Union counsel acknowledges that in some of the arbitration cases put
before us, arbitrators have found that "Continuing Education" has a "special status", and
that pure 'Con Ed' employee are outside the bargaining unit. However, counsel argues
that the kind of program under review in those cases, was quite different from the
situation currently before us. Nor, counsel suggests, should we necessarily assume that.
those arbitration cases were correctly decided. In fact, she asserts that they were not
correctly decided.
But in any event, none of those cases dealt with credit courses, of the kind
that we are dealing with here; and in the union's submission, that makes all the
difference. The two target individuals were responsible for delivering course material, for
which the student earned academic credit, and which counted toward a recognized
diploma - the same diploma that students get from learning in a more traditional setting.
That was different from earlier cases on 'Con Ed'.
The union further argues that the ECE credit courses that are the focus of
this case are not (as counsel puts it) "true con ed" courses, precisely because they are
'for academic credit"; and in that respect, the union argues that the situation here is
different from the other arbitration cases put before us, and is similar to what was
considered, more recently, by arbitrator Brown in Fanshawe College (Brown, 2002). In
49
Fanshawe, the arbitrator ruled that even though a particular program was delivered
through "Continuing Education", it really wasn't "true continuing education" - with the
result, (the arbitrator held), that the jobs/work in that program had to be considered under
Articles 2.02, and 2.03, and the employer had to post one full time position pursuant to
Article 27.11.
· The union says that courses for academic credit, as part of a recognized
diploma program, are not "true Continuing Education", and therefore should not be so
regarded for the purposes of the collective agreement - including Article 27.16, rclicd
. - upon by the employer here.
In the union's submission, the employer cannot unilaterally move
academic employees outside the scope of the collective agreement, simply by delivering
credit or diploma programs through something called "Continuing Education".
In the result, the union says that work being done by these two partial
loaders should have been bundled together to create a new full time bargaining unit
position, unless there was some operational reason why that could not be done. And in
the instant case, the College advanced no operational impediment to creating a full time
teaching assignment.
The College replies that the situation is not nearly as "simple" as the
Union says it is. In counsel's submission, the persons teaching pure Continuing
50
Education courses are excluded from the bargaining unit, and the courses that they teach,
are not accessible under Article 2.02.
Counsel submits that the union's proposed interpretation of the agreement
is not consistent with other provisions of the agreement, and cannot be reconciled with
them. Nor is it consistent with the jurisprudence on the "special status" of Continuing
Education - which, she says, shows that that the union's position in this case is simply
wrong.
There are several strands to the employer's argument, and each reinforces
the other.
In the College's submission, Article 2.02 cannot be considered in isolation
from its contractual context - but especially Article 27, which exempts Continuing
Education courses (and by inference those who teach them) from core elements of the
collective agreement -- including provisions which are similar in purpose and language
to Article 2.02. In the College's submission, Article 2.02 and Article 27 have to be read
together, because the content of Article 27 illuminates the intended ambit of Article 2.
Article 27.16 is especially important, and reads as follows:
27.16 Extension and Continuing Education programs and courses
which are not included in the regular assignment of full-time
employees are excluded from the application of this Article for all
purposes.
51
The College submits that Article 27.16 recognizes the distinctive treatment
of Continuing Education courses, and provides that unless those courses are part of the
regular assignment of a full time bargaining unit employee, then they are beyond the
reach of many of the key "job security" provisions of Article 27. Accordingly, unless the
situation under review, falls within that exception, the provisions of Article 27 do not
apply to Continuing Education courses or to the persons who teach them; and in
counsel's submission, when Article 2 is read in conjunction with Article 27.16, it
becomes apparent that Article 2 was never intended to apply to Continuing Education
courses either.
Counsel submits, for example, that implicit in Article 2.02, is the notion
that if there are no operational impediments to creating a full-time position, then the
College should do so, and should post that newly created full time job, so that members
of the bargaining unit can apply for it. Article 2.02 requires the employer to create a
regular full time bargaining unit job out of lesser positions; and Article 27.1 lA requires
the employer to post the new bundled together teaching assignment.
But in the College's submission, Article 27.16 provides that Continuing
Education programs and courses, are excluded from the job posting requirements of the
agreement (found in Article 27.11 A) unless they are part of the assignment of an existing
full time bargaining unit employee. So, according to the College, even if it were obliged
to bundle together Continuing Education assignments, so as to create a "full time job"
doing this bundle of Continuing Education courses - which the College asserts it is not
required to do - such job would not have to be posted for the benefit of members of the
full time bargaining unit; because the job posting provisions do not apply to Continuing
Education courses. In the College's submission, the collective agreement makes no
distinction between credit or non credit courses taught in Continuing Education. Both are
excluded from the ambit of Article 27, unless they are part of the regular assignment of a
full timer.
The College says that, on the union's theory, a provision (Article 2)
designed to create work opportunities for full time bargaining unit employees, would not
actually produce a result that would be accessible to those bargaining unit employees
through the mechanism that the parties have negotiated to deal with job openings: the job
posting procedure. The union's interpretation generates a result which, the employer
argues, does not "fit" with other provisions of the agreement that have a similar purpose.
The College submits that this is just one of a series of anomalies that are
avoided, once it is recognized that Article 2.02 does not apply to Continuing Education
courses at all. Another can be found when Article 2.02 is read together with Article
27.05. The College points out that the duties cast upon the College Employment Stability
committee in a layoff situation, include an examination of alternative work assignments
under Article 27.05 (iii), which contains language virtually identical to Article 2.02:
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
53
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
objectives, 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.
In the College's submission, (the union agrees with this) Article 2.02 and
Article 27 both deal with the protection of work opportunities for bargaining unit
members. Both provisions direct the College to look at a preference for full time jobs.
The difference lies in when that enquiry takes place. Article 2.02 is a general provision,
while Article 27.05 (iii) is engaged in the context of a proposed layoff.
But in the College's submission, Article 27.05 (iii) has no application to
Continuing Education courses (because of Article 27.16), even though, in that context, a
regular bargaining unit position has been eliminated, and a regular bargaining unit
member is being laid off.
In other words, where the job security of a regular bargaining unit member
is really in jeopardy, and the parties are looking for an appropriate "landing place" for the
displaced bargaining unit employee, the College says that it is NOT obliged to look at
bundling up Continuing Education courses. That, the College submits, is another effect of
Article 27.16, which provides that Continuing Education courses are excluded from the
application of Article 27 for all purposes - including 27.05. Yet, on the union's view, the
54
College IS obliged to look at bundling together Continuing Education assignments under
Article 2.02, when no bargaining unit person's job is in jeopardy.
In counsel's submission, that does not make sense. She puts it this way:
could the parties have intended to oust the application of Article 27.05(iii) [the effect, she
says, of 27.16] which uses wording similar to Article 2.02, yet still have intended that
Article 2.02 itself should apply, when there was no imminent threat of job loss? Could
the parties have intended that there be a lesser obligation to look for alternative work,
when an employee's job security is actually in jeopardy? In her view the answer is "no";
and the apparent anomaly is resolved when it is recognized that Article 2 does not apply
to pure Continuing Education courses at all.
In counsel's submission, the effect of 27.12 is also telling. It reads as
follows:
27.12 - Personnel Lists
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.
The second sentence of Article 27.12 requires the College t° provide a list
of personnel hired to teach credit courses - including sessional employees, who, it will be
recalled, are outside the bargaining unit. But in counsel's submission, (because of Article
~27.16), the College is not obliged to list the personnel teaching credit courses in
55
Continuing Education, unless the courses are part of the regular assig-mnent of a full time
bargaining unit employee. In particular, the College is not obliged to report the presence
of persons who are only doing teaching in Continuing Education ("pure" continuing
education teachers, so to speak) - even if they are teaching credit courses.
In counsel's submission, Article 2.02 was never intended to apply to
Continuing Education courses - credit or not credit - and, she reiterates, Article 27.16
does not make any distinction between credit and non-credit offerings. Nor, she points
out, is that distinction made in the arbitration cases that discuss the status of Continuing
Education teachers - cases which hold that .pure Continuing Education teachers are
outside the bargaining unit regardless of the number of hours they teach (see George
Brown College (Mitchnik) and Cambrian College (Picher) discussed below).
Moreover, if the individuals doing Continuing Education courses are
outside the bargaining unit (as counsel contends they are), and if the work that they are
doing cannot be accessed under Article 27 by members of the bargaining unit even when
there own job security is jeopardized (the argued effect of Article 27.16), then could it
have been intended that Article 2 apply to that course work? The College says no.
The College submits that the way in which Article 27.16 is framed
(dealing specifically with full timers who may teach incidentally in Continuing
· Education) simply reinforces the notion that if all that the individual does, is teach
courses in Continuing Education, (i.e. if the individual is a "pure con ed" employee) then
s/he is not in the bargaining unit to which the collective agreement applies, and that
Article 2, in particular has no application to her. And in counsel's submission, that is
what the arbitration cases say as well.
In the College's submission, the linguistic structure of the agreement and
shared purpose its various provisions, all point to the same conclusion: excluding from
consideration, courses and employees in Continuing Education. So does the union's
conduct which, the College says, has accepted that Continuing Education courses and the
employees who teach them are beyond the application of the Collective Agreement,
unless it so happens that the teaching is being done by a regular bargaining unit member,
as part of his/her regular teaching assignment. But if it is not part of a regular assignment,
then the agreement does not apply - and has not been applied.
In the College's submission, it is inconceivable that persons presenting
Continuing Education courses could be included in the bargaining unit, yet have no
access to so many key elements of the collective agreement. Counsel asserts again, that
pure Continuing Education employees are not listed on the personnel lists provided under
Article 27.12 - which is significant in itself; that they have no layoff or bumping rights;
and that what they are teaching, cannot be accessed by other regular employees on layoff,
unless the Continuing Education work is being done by a regular full time bargaining unit
employee. But, absent this link to the full-time bargaining unit/full time teaching
assignment, the courses are beyond the reach of all of the job security provisions found in
Article 27. In counsel's submission, the employees teaching pure Continuing Education
57
· . courses have none of these rights; and the work that they do is not available to bargaining
unit employees either.
· . The College asserts that its proposed interpretation of Article 2.02 is
reinforced by reference to Article 1.01 - the recognition clause - which, in turn, takes one
to the definition of the "teachers" to whom, counsel argues, the agreement is "really"
· intended to apply. In counsel's submission, Article 1.01, read together with these
definitions, demonstrates a shared understanding by the parties that continuing education
teachers are outside the bargaining unit - which was also thc conclusion of two different
· ~ arbitration panels, in the George Brown College case and the Cambrian College case,
mentioned below.
The College argues that although the "evaluators" (its terminology) who
oversee the ECE credit courses in Continuing Education are "employees" of the College,
they are not "teachers" within the meaning of Article 1.01 or Article 14 of the collective
agreement. The College submits that when one looks at the mandatory salary and job
classification plans that are found at the back of the agreement, it becomes clear that what
the parties were talking about were "teachers" in a regular classroom setting - not the
kind of person who oversees a correspondence course in Continuing'Education.
In the College's submission, these provisions reinforce the inference that
the "evaluators" are not "teachers" within the meaning of Article 1.01 of the agreement,
and thus are not in the academic bargaining unit, to which the collective agreement
applies. Nor do they hold a teaching position for the purposes of Article 2. Which the
College says is also consistent with the parties' practice of not applying the collective
agreement to them.
Once again, counsel submits, when one reads Article 2 in conjunction with
other provisions of the collective agreement, it becomes apparent that Article 2 was
never intended to apply to the kinds of people and courses that are before us in this case.
And the practice reinforce that view.
Counsel further points out that in the George Brown College case (1993),
arbitrator Mitchnick held that persons "teaching" exclusively in Continuing Education
were outside the scope of the bargaining unit - a decision which was later followed by
Arbitrator Picher, in a similar case involving Cambrian College. In both cases, the
arbitrators held that an employee engaged exclusively in doing Continuing Education
courses - so called "pure Continuing Education teachers" - were outside the bargaining
unit and outside the scope of the agreement. None of the agreement's provisions applied
to them. And in counsel's submission, that is so regardless of what those individuals
teach. The College says that the same reasoning is applicable here.
In the College's submission, the practice and the cases and a holistic
reading of Article 1.01, all confirm the intended scope of the academic bargaining unit -
and likewise confirm that persons doing "Continuing Education" are excluded from that
unit and the application of the agreement.
59
Insofar as Article 2.02 is concerned, the College submits that this
provision is only applicable to partial loaders who are in the unit (which persons teaching
continuing education courses are not): it may require the employer to cobble together
lesser bargaining unit positions, to create a more substantial regular bargaining unit
position, but it does not require the College to reach out to work or people that are outside
the scope of the unit altogether.
In the course of thc argument, we were referred a number of arbitration
decisions, which, it was said, would illustrate the "special status" accorded to
"Continuing Education": Fanshawe College (Bastedo - February 5, 1982); Conestoga
College (Palmer - August 25, 1984); Fanshawe College (Brown - June 28, 1996);
George Brown College (Mitchnik - February 16, 1993); Cambrian College (Picher -
February 27, 1996); Algonquin College (Knopf- August 3, 2001); Fanshawe College
(Brown - October 3, 2002). There were no court decisions pertaining to the issues before
us, and no decisions of the Labour Relations Board either. Nor did we have any direct
evidence about the parties' intentions with respect to any of the several clauses to which
we were referred. Accordingly, we are left to glean such enlightenment as we can find
from the materials put before us, and from the reasoning of other arbitrators.
To be clear: we do not think an arbitrator is "bound" by another
arbitrator's decisions (in this regard, see: Laurent Isabelle et. al v. The Ontario Public
Employees Union (1981) 81 CLLC p. 259 (S.C.C)). An arbitrator has to decide the case
60
on the basis of the evidence before him, and the views of other arbitrators are merely
persuasive - and then only if the facts are similar, or do not make a difference to the
analysis. However both parties point to one or other of the above cases, in support of their
respective positions. We will return to those cases later.
IV, As aside on the statutory context.
Strictly speaking our task is one of interpreting the collective agreement.
We have to decide whether Article 2.02 applies to certain work being done by employees
in the College's Continuing Education Department/Program, in order to see whether the
College may be obliged to "bundle up" that work into a full time job. However, the
College has raised the "scope of the bargaining unit", in response to the grievance and as
part of its argument; and the union has raised the CCBA in reply; and some of the
arbitration cases referred to, address this issue as well. So we do not think that we should
ignore those elements of the statutory framework, which are part of the legal context and
which may inform the interpretation or application of the collective agreement. For as we
will see below: the "bargaining unit" is a creature of statute - not just the product of
collective bargaining - and the exclusion of "Continuing Education", (courses or
employees) from the collective agreement nowhere appears (explicit. ly at least) in either
the CCBA, or in Article 1.01 of the collective agreement. And once issues about "the
bargaining unit" are engaged, the statute come into play - at least as part of the context.
***
In the early 1970's, the Ontario Legislature determined that the employees
who work for community colleges should have their own collective bargaining scheme,
61
which is different from the one that applies to employees covered by the Labour
Relations Act. That scheme of collective bargaining rights was created - and continues to
be regulated - by the Colleges Collective Bargaining Act ("CCBA"). The CCBA applies
to all collective negotiations concerning terms and conditions of employment for
community college "emt~loyees" (s. 2(1)); and no collective negotiations for community
college "employees" can be carded on except in accordance with the CCBA (see s. 2(2)).
The community college "employees" to whom the CCBA applies, are
those "ernt~loyees" defined in section 1 of the CCBA. The term ernivlovee, in turn, "means
"· a person employed by a board of governors of a college of applied arts and technology in
a position or classification that is within the academic staff bargaining unit or the support
staff bargaining unit set out in Schedules 1 and 2".
So for the purposes of the CCBA, the term "employee" means someone
who is in one, or other, of the two, statutorily prescribed, "bargaining units" defined in
the Schedules to the CCBA.
These definitions - "employee" and "bargaining unit" - are congruent with
each other, and are mutually reinforcing. They define the groupings of College
employees, who are represented by the union and can engage in collective bargaining
under the CCBA; and they also identify those College employees, who are not
represented by the union, and who are excluded from the collective bargaining scheme
pertaining to community college employees. Moreover, as we will see in a moment, these
,. 62
statutory provisions also define those "employees" to whom the collective agreement
applies, and those employees of the College to whom the collective agreement does not
apply.
The statute contemplates a process of provincial collective bargaining, that
results in a written, province-wide collective agreement, that applies to all of the
province's community colleges. Pursuant to section 51 of the CCBA, that "agreement" is
made binding upon ". ....the employees in the bargaining unit covered by the agreement"
- which is to say, the agreement is made binding upon the employees who are employed
by a particular College,. in either the academic staff bargaining unit (as defined in
Schedule 1), or in the support staff bargaining unit (as defined in Schedule 2).
Section 67 of the CCBA, also confirms that the bargaining units for
collective bargaining purposes, are the two units of employees that are prescribed in the
Schedules. There are no other bargaining unit definitions in play.
In the result, under the CCBA: the union represents the "employees" in the
"bargaining units" defined in Schedules 1 and 2; the parties are obliged to engage in
collective bargaining in respect of those two, statutorily defined, groupings of employees;
and the outcome of collective bargaining - the collective agreement - applies to the
"employees" in those two bargaining units.
63
Conversely, if an individual is not within one of the two bargaining units
defined in the Schedules, then s/he is not an "employee" under the CCBA, s/he cannot
participate in collective bargaining under the CCBA, and the collective agreement can
have no application to her/him. A person outside the prescribed units, is outside the
fi'amework of collective bargaining for college employees.
The two broad groupings of employees to whom the CCBA relates - the
two "bargaining units" - are a unit of "teachers" on the one hand, and a unit of "support
staff" on the other. Hence the designation: "academic staff bargaining unit" and "support
staff bargaining unit".
,
The CCBA determines which employees can engage in collective
bargaining, as well as the employees to whom the collective agreement will apply. But,
for the most part, the legislation does not regulate the actual content of the collective
agreement. Within the framework of the CCBA, the bargaining parties are free to
negotiate whatever terms they wish for the "employees" to whom the collective
agreement applies. However, there are some important exceptions - including section 52
of the CCBA, which pours into the provincial agreement a "deemed" recognition clause,
which, in turn, picks up the statutory definition of "bargaining unit".
Section 52 ensures that the recognition clause in the collective agreement
will match one or other of the bargaining units defined in the statute. And if there is any
inconsistency within the collective agreement language, it is clearly the statute that
64
prevails -both on general legal principles and because, section 48(2) of the CCBA says
SO.
The scheme of the CCBA, read as a whole, creates a simple and
symmetrical equation of bargaining rights and bargaining responsibilities, that pertain to
two statutorily defined bargaining units. It would be inconsistent with the scheme of the
Act for there to be any other bargaining unit to which the agreement might relate (again
see CCBA sections 2 and 67). Nor would it appear to be open to the parties to negotiate in
respect of any other bargaining unit; because they are confined in their collective
negotiations to the scheme, and the structure, prescribed by the CCBA (see sections 2 and
67 and 48(2)). And if the parties cannot depart from the statutorily prescribed bargaining
units by the express language of their collective agreement, then it is difficult to see how
they can do so by virtue of some "practice" - however longstanding.
.
So: looking at the statutory definition, who falls within the scope of the so-
called "academic staff bargaining unit"? ~
.
The statute says that the '.'academic staff bargaining unit" encompasses all
"employees ..... employed as teachers, counsellors or librarians", with 10 specific
exceptions. The word "teacher" is not defined in the CCBA. Neither is the word
"academic staff", except as a descriptive term, that is used with reference to a bargaining
unit that contains a grouping of"teachers, counsellors or librarians".
65 r ,
By contrast, the support staff bargaining unit, is composed of employees
of the college who are employed "in positions or classifications in the office, clerical,
technical, health care, maintenance, building service, shipping, transportation, cafeteria,
and nursery staff" - also with certain stipulated exceptions. The support staff definition is
a bit more fulsome about describing the kinds of positions or classifications that its
members occupy.
To be clear: in the case of the "academic bargaining unit", the statute talks
about employees .... employed as teachers - not emt~loyees who are employed to teach
academic courses (whatever that might mean for a community college).
The statute does not address what these teachers might teach, or who, or
how.
.
Neither Article 1.01 (the recognition provision) of the negotiated
collective agreement, nor Schedule 1 of the CCBA, are framed in terms of the work, or
the course assignments, of individual "teachers" (i.e. what they teach, or how they teach
it). Nor is there any reference to the organizational structure or administrative
subdivisions of the College (departments, faculties, campuses, buildings, schools,
programs, etc.); or to the nature of the students taking the courses; or to the funding
arrangements for the courses; and so on. So long as an individual is "employed....as a
teacher" within the meaning of the CCBA and s/he is not caught by one of the explicit
exclusions in the CCBA, then (if one just looks at the statute) s/he is "in" the statutorily
66
defined bargaining unit; and if s/he is "in" the statutory bargaining unit, then s/he is
caught by the deemed recognition clause, and the collective agreement necessarily
"applies" to him/her.
That said, we think that it is very important to distinguish between the
scope of the bargaining unit (i.e. who is "in" the bargaining unit - and therefore who the
collective agreement applies to), on the one hand, and the actual terms and conditions of
employment for particular employees within that bargaining .unit, on the other. The
former [the scope of the bargaining unit] is determined by statute. The latter [ the
substantive terms, applicable to particular bargaining unit employees] depends upon what
the parties have actually negotiated for the class of employees under review.
Employees "covered" by the academic collective agreement (in the sense
of being in the bargaining unit), do not necessarily all have the same terms and conditions
of employment. Nor do all of the clauses of the collective agreement necessarily apply, to
all employees in the bargaining unit.
To take but one example: Article 26 of the academic agreement, deals
with the situation of "partial loaders", who clearly do not have the same terms and
conditions of employment as regular "full time" employees do. Some provisions of the
collective agreement do not "apply" to partial loaders, even though they are clearly "in"
the bargaining unit.
67
In summary then, the fact that an employee is included in the bargaining
unit (because the statute says so), does not, in itself, determine whether one or more
clauses of the collective agreement applies to him/her. Nor does it determine whether a
particular clause applies to the circumstances that gave rise to the dispute. That depends
upon the interpretation of the clause itself. And of course, even if a particular clause may
nominally "apply" to an employee, or to the situation, there may be a number of reasons
(or employer "defences") which may preclude giving effect to that clause, in the
particular circumstances of the case - for example: arguments about estoppel, or laches,
or the failure to "grieve" about the situation in a timely way, and so on. The fact that a
clause could apply, does not mean that it does apply, or should be applied in the
particular circumstances giving rise to the grievance.
V - The cases
We do not think, that there is any dispute (and the cases would certainly
demonstrate) that despite the lack of references to "Continuing Education" in either the
CCBA or the collective agreement (the only place where those words seem to appear is in
Article 27.16), there has been some history of treating Continuing Education courses
differently. What cannot be determined on the evidence before us (and is not clear from
the cases either) is why, this is the case, or how this practice developed.
68
Was it because the overwhelming majority of these Continuing Education
courses were taught by persons working for six hours or fewer per week, so that they
would be excluded from the bargaining unit and the application of the collective
agreement for that reason alone (recall Mr. McFadden's evidence about the prevalence of
part-timers in his programs)? Was it because the subject matter that these employees'
taught, was different from what the regular, full time, bargaining unit employees taught
(recall Mr. McFadden's comments about yoga or belly dancing, which are hardly the core
academic curriculum of the College)? Or was it because there was some shared
understanding about the status of Continuing Education employees, that is not
formalized, or mentioned explicitly, in either the statutory or collective agreement
provisions?
We simply do not know what the reason for the practice was; and (unlike
in some of the cases to which we were referred) there was, in our case, not much
historical evidence about that. Nor do we even have much direct evidence of practice, at
St. Lawrence College or elsewhere (recall that this is a provincial collective agreement,
applying to a number of Ontario Colleges).
What can be said is that them are a number of arbitration decisions about
the relationship between this kind of "teaching" and "teacher", and the "teachers" and
"teaching" that everyone agrees fall under the umbrella of the collective agreement. And
while none of these cases involves the precise facts that we have before us here
(employees working 12 hours per week, overseeing credit courses, given through
69
Continuing Education, and leading to a recognized College diploma), those cases do help
' ' to illustrate the context in which the present case arises.
The cases put before us come at the question of "Continuing Education"
from two different perspectives; and we think that it may be useful to distinguish between
them.
,
Some of those cases involve whether the teaching work in Continuing
Education can be accessed by bargaining unit employees, and/or whether certain
provisions of the collective agreement can apply to that teaching work being done in
Continuing Education. These cases are about the application of the collective agreement
to particular Con Ed courses or teaching work. They talk about hours of teaching work,
and whether the collective agreement provisions that apply to teaching work, apply to
those particular teaching hours - that is, whether there is something special about
Continuing Education teaching, such that particular provisions of the agreement do not
apply to it.
These cases typically involve what happens when a regular bargaining unit
member, also does some teaching hours in Continuing Education. The status of the
individual teacher, doing the teaching work, is not really in issue. The question is whether
one or other collective agreement provision applies to that work.
70
Other cases address whether the employees actually doing the "teaching"
of Continuing Education courses, are "in the bargaining unit", and covered by the
collective agreement at all (i.e. whether there are employees of the college, who "teach"
for more than 6 hours per week, but who are not in the bargaining unit, and are not
covered by the collective agreement, because of what they teach, or the program in which
their course is mounted).
These latter cases concern the status of the "employees" who teach in
Continuing Education, and whether the collective agreement applies to them at all - that
is, whether there is something about Continuing Education teaching that takes those
courses and the employees who teach in those programs, outside the ambit of the
collective agreement altogether - regardless of the number of hours of teaching involved.
These cases focus on whether that kind of teacher has any collectively bargaining rights
at all.
In Fanshawe, (1982, Bastedo) a regular full-time teacher in the
bargaining unit did some "moonlighting", teaching Continuing Education courses, with
the result that his total teaching hours (if the Con Ed work were added in) were beyond
the maximum prescribed in the collective agreement. The question was whether the extra
hours of work that he did in this moonlighting arrangement, were covered by a provision
of the collective agreement dealing with overload work assignments. The union said that
the work load clause in the collective agreement applied to the moonlighting "Con-Ed
work" that this bargaining unit employee was doing; while the employer said that it
71 ,
didn't. And after referring to a couple of dictionaries, the arbitration board ruled that the
terms of the clause regulating overtime, did not apply to the particular kind of
arrangement under review in that case.
The Fanshawe award does not identify whether the Con Ed teaching in
that case, involved a "credit course" as part of some integrated academic program (as is
the case here). But the award does note that the majority of Continuing Education courses
are taught by other than full time faculty - which is what Mr. McFadden said, in our case.
The Fanshawe decision did not involve the scope of the bargaining unit,
or the ambit of the recognition clause, or the "bargaining unit status" of an employee
teaching exclusively in "Continuing Education". It was an interpretation of one clause of
the agreement as it was then drafted, and the proposed application of that clause, to some
work that a bargaining unit employee was doing.
It was implicit in the college's argument in Fanshawe, that when the
college employee was doing that teaching work, he was stepping outside the scope of the
bargaining unit and beyond the reach of the collective agreement. But the case doesn't
look at it, in quite that way. Moreover, the Bastedo decision does not seem to be
consistent - at least in result - with a later decision (Canadore College, Brown 1990), that
came to precisely the opposite conclusion, in respect of the 1990 workload language.
72
In Canadore (Brown 1990) the arbitrator held that the workload provisions
of the collective agreement did apply to the work which a regular bargaining unit
employee did in Continuing Education - which is to say, that Continuing Education
courses did not constitute an enclave of teaching work that was beyond the reach of the
work load provisions of the collective agreement.
Canadore (Brown) held that when the employee "stepped into" a Con-Ed
teaching assignment, s/he did not "step out of" the collective agreement - or, in that case,
the work load provisions of that collective agreement.
The Canadore (Brown) approach was revisited and confirmed a few years
later, in Fanshawe College (Brown, 1996). In this later case, the union once again sought
to invoke the workload provisions of the academic agreement, when a regular bargaining
unit member did teaching work in Continuing Education; and the College once again
took the position - not unlike the College in this case - that this body of work in
Continuing Education was beyond the scope of the collective agreement. The arbitrator
summarized the employer's position this way (emphasis added):
It is [the employer's] principal position that when full time staff
members are hired to teach courses in Continuing Education that
this teaching time is not covered by the collective agreement and
therefore does not fall under the terms of Article 4 [workload].
Put differently, the employer's position was that the collective agreement
only applied to some kinds of "teaching work" being done by teachers; and that it did not
apply when those employees did other kinds of teaching work - in that case: teaching
73
courses in Continuing Education. Moreover, there, as here, the employer reviewed the
diversity of the teaching done in Continuing Education, and its practice of excluding the
employees and the work associated with Continuing Education from the application of
the collective agreement. There was (it was argued) a practice of non-application which
the employer invoked as an aid to interpretation - as the employer does in the instant
case.
However, as in the earlier Canadore case (Brown 1990), the arbitration
panel in Fanshawe, (again, involving arbitrator Brown) found that the Continuing
Education work was "covered" by the collective agreement, and that it had to be
"counted" in the work load provisions of the collective agreement, when that work was
done by full time bargaining unit employees. The arbitration panel was not prepared to
treat "Continuing Education" as an excluded zone, to which the collective agreement
could not apply - at least in the absence of some specific exclusionary language, of the
kind that was then found in the seniority provisions of the agreement. The panel
observed:
Article 4 does not provide exceptions to its application, such as
found in Article 8.09 [now 27.16] referring to the exclusion of
Continuing Education Programs in the application of seniority.
which could have, had the parties so intended, been excepted as
well for the purpose of the workload provisions. There is no
express intent of the parties to exclude such hours from this
provision.
In other words, the fact that an express exclusion could be found
elsewhere in the collective agreement, influenced the panel to conclude that none should
be implied in the work load article. In the panel's opinion, if the parties had wanted to
74
make such exclusion, they could have done so - as they had done elsewhere. But there
was no such express exemption, removing Continuing Education teaching from the
general work load clauses, and the arbitration board, was unwilling to imply one.
Canadore (Brown) and Fashawe (Brown) held that collective agreement
provisions governing work load extended to work being done in Continuing Education,
when that work was being done by a bargaining unit member. Continuing Education was
not beyond the reach of the collective agreement. Con Ed may well have special
characteristics, but the two cases involving Arbitrator Brown, held that general clauses of
the collective agreement can apply to that teaching work, unless there was a clear
indication that they don't apply.
In our view, Article 27.16 has the same thrust. It recognizes that if
"teaching work" in "extension" and "Continuing Education" programs (all undefined
terms) is part of the teaching assignment of a regular full time employee, then Article 27
of the collective agreement can apply to the employee doing that work.
In other words, the work is accessible to the collective bargaining parties, ·
and to the collective bargaining process.
As a result of Article 27.16, the provisions of that Article - that is, Article
27 - may apply to at least some employees, doing teaching in Continuing Education.
There may also be Con-Ed teachers, to whom Article 27 does not apply.
75
However, it seems to us that Article 27.16 also illustrates, that the
bargaining parties have acted as if they are able to bargain about that work - because they
have bargained about that work, when the "teacher" doing the "teaching" work, is a full
time employee.
To put the matter another way: the parties have treated "the teaching
work" as part of the collective bargaining regime and which can be made accessible by
one or more provisions of the collective agreement. They have not treated the work done
by Continuing Education instructors as some "forbidden territory" to which the collective
agreement can have never have any application. Indeed, the two Brown decisions and
Article 27.16, all show that the collective agreement can apply to "work" in Continuing
Education, at least sometimes.
Now, it is a little misleading to think about the "bargaining unit" as if it
were defined in terms of particular kinds of work - rather than as a grouping of
"employees" doing "teaching" (which is the way that the CCBA and Article 1.01 both
look at it). There is no reference to the kinds of work or programs in which teachers are
engaged (or funding source, or student audience either). Nevertheless, even if one does
think about the bargaining unit in terms of "work", the parties have not excluded
"Continuing Education work" from their bargaining, and thus, inferentially, from the
possible application of one or more provisions of the collective agreement. On the
contrary, the bargaining parties have, in the circumstances stated, extended the reach of
76
Article 27 to Continuing Education courses -just as the arbitrators in Canadore and
Fanshawe extended the reach of other clauses of the collective agreement, where the
application of those other clauses was not expressly ousted by exclusionary wording of
the kind one that finds, explicitly, in Article 27.16.
So one way of looking at the present case, is to regard it as an attempt by.
the union to apply Article 2 of the agreement to Con- Ed teaching, just as Arbitrator
Brown was persuaded that the work load provisions could be applied in the cases before
him.
In Conestoga (1984, Palmer), the grievor had for some years, been an
ordinary academic employee and a member of the bargaining unit. At the time that her
claim was made, she was regularly teaching some 15 hours per week - though only in
Continuing Education. The gfievor asserted that certain portions of what is now Article
27, applied to the hours that she was teaching. But the arbitration board held that the
exemption in what is now Article 27.16 applied, so that the protections found elsewhere
in Article 27, did not extend to persons like her, who only taught in Continuing
Education. In the arbitrator's view, such Continuing Education courses were "excluded
from the application of this Article".
The case does not identify whether the teaching, in question involved
"credit" courses or something else; and there was no issue of bargaining unit description
involved. Moreover, while the result of the award is clear enough (the grievor lost), the
77
, · panel did not really explain why the courses in question were not "included in the regular
assignment of a full time employee", so as to take them out of what is now Article 27.16.
Because, as noted: the grievor in Conestoga was regularly teaching for more than 12
hours per week, which is beyond the "partial load" level of hours. If she was not a full
time employee, with a regular teaching assignment, then what was she?
Nevertheless, the result in Consestoga (Palmer) supports the employer's
position in the instant case; and like Fanshawe (Bastedo) illustrates the kinds of questions
which can arise, if there are said to be persons who are "employees" of the college, who
regularly doing "teaching work", for more than "part time hours", but to whom the
collective agreement does not apply.
The leading case on "recognition" and the "scope of the bargaining unit" -
- and the one upon which the employer primarily relies for this branch of its argument --
is George Brown College (Mitchnik, 1993).
The focus of George Brown was not "the work", as such, but rather the
bargaining unit status of the employee doing it: was this "teacher" an employee in the
bargaining unit or not?
In George Brown, the grievor taught non-credit, unfunded (by the relevant
government Ministry), general interest photography courses, for 15 hours per week; and
the issue in the case, was whether he should be considered to be an employee in the
"academic bargaining unit". Since there was no doubt that the grievor was an "employee"
of the college, the gfievor's claim was simple: he said that he was a "teacher"; that he
taught for more than 15 hours per week; and that, he should therefore be treated as a full
time employee in the academic bargaining unit. By way of remedy he sought: "a
declaration that I am a full time permanent employee and have been a member of the
bargaining unit, throughout the term of the collective agreement".
However, after reviewing the past practice and some statutory history, the
board Chaired by arbitrator Mitchnik concluded:
But on the issue before us, when one combines the history of the
parties' dealings on this issue, together with that of the collective
agreement language itself, the conclusion one is overwhelmingly
driven to is that pure Continuing Education teachers are not
covered by the provisions of the collective agreement as it has
been negotiated by the t~arties. Whether, as Mr. Bloom [union
counsel] argues, there are, notwithstanding the full history set out
herein, bargaining rights stipulated by the Colleges Collective
Bargaining Act, that go further so as to include the representation
of Continuing Education teachers, and to which not even
"estoppel" can apply, is not a matter for a board of arbitration.
Our only.function is to interpret the collective agreement that is
before us, and we find that that collective agreement is not one
that the parties negotiated to cover Continuing Education
teachers in themselves ". [emphasis added]
The text of the decision goes through some of the debate which preceded
the passage of the CCBA, and the panel also records the wording of the statutory
bargaining unit (Schedule 1, which we have reproduced in the Appendix to this award).
But in the end, (as noted above) the Mitchnik panel declined to rule on the impact of the
statute, and did not consider the scope of the bargaining rights created by the statute. Nor
did the panel mention the deemed recognition clause, that specifies the employees to
79
whom the collective agreement applies, or sections 2 and 67 of the CCBA. The board
simply interpreted the document (as the panel put it) "as it has been negotiated by the
parties", and declined to rule on what the statute might mean - on the theory that what the
statute might require, was "not a matter for a board of arbitration".
In the Board's view, its job was to interpret what the parties had
negotiated; and the recognition clause that the parties had negotiated, did not cover
employees, employed as teachers, exclusively in Continuing Education.
George Brown is the case which established the proposition that "pure
Continuing Education teachers" are outside the academic bargaining unit, (as defined by
Article 1.01) even if the "employees" in question are employed to "teach" on a full time
basis; and it is the analysis in George Brown ("the Mitchnik analysis") that is urged upon
us here. The College submits (among other things) that the two employees in this case,
are "pure Continuing Education employees", who therefore fall outside the scope of the
bargaining unit; and because they are outside the bargaining unit, Article 2.02 can have
no application to them, or to the work that they do.
We will return to that argument below. At this point, we merely note that
while arbitrator Mitchnik concluded that the collective agreement did not apply to an
employee who taught non-credit courses, exclusively in Continuing Education (i..e. a
"pure Continuing Education teacher"), and that such employee was not a member of the
bargaining unit covered by the agreement, he also said (citing Canadore) that Continuing
Education work might, for some purposes, fall within the scope of the collective
agreement. He observed:
"That is not to say (as article 8.09 [now 27.16] itself notes) that
all Continuing Education hours are therefore irrelevant for the
purposes of the collective agreement, and restrictions pertaining
to those teachers covered by it....".
In the result, the George Brown decision says: (1) that if the teaching work
in Continuing Education is done by a "pure Continuing Education teacher", (i.e. a teacher
who teaches exclusively in Continuing Education), then that employee is outside the
bargaining unit, and outside the application of all of the provisions of the collective
agreement, even if the individual in question is employed as a teacher for more than 6
hours per week; but (2) that the hours of work done in Continuing Education programs
may still be "accessed" by provisions of the collective agreement in some circumstances,
even though the teaching hours are in Continuing Education.
The George Brown case did not involve an employee who taught courses
for academic credit, nor does the practice evidence there recorded (of which we have
very little) pertain primarily to teachers of credit courses. But neither is there anything in
the award, that suggests that that would make any difference.
On the George Brown analysis, simpliciter would seem to say that: an
employee of the College, employed as a teacher, teaching credit courses, for 36 hours per .
week, would be outside the bargaining unit, if the teaching is done exclusively, in
81
something called "Continuing Education" - an undefined term that does not appear in
either the recognition clause of the collective agreement, or in Schedule 1 of the CCBA.
George Brown seems to say that this kind of "teacher" has no collective
agreement fights.
The analysis in George Brown was embraced without elaboration in
Cambrian College (Picher, 1996).
In Cambrian College (Picher, 1996), the grievor was a "pure Continuing
Education" teacher who had worked for many years teaching "non-credit" sewing
courses; and, interestingly (the decision notes), for some portion of her tenure, the grievor
had been considered to be part of the bargaining unit, because she was a teacher, for more
than part time hours. However, later on, the college took a different position; and the
dispute crystallized when the employee sought to invoke certain collective agreement
provisions to prevent a reduction in her hours of work, and to challenge her threatened
dismissal - and, in particular, she sought to invoke a clause in the collective agreement
that prohibited discrimination on the basis of sex. But the College responded that the
grieving employee could not invoke the protection of any of these clauses, because she
was not in the bargaining unit, and therefore the collective agreement did not apply to her
at all.
Arbitrator Picher agreed with the employer's position. After noting that a
board of arbitration should give deference to the decisions of other arbitrators, the panel
majority adopted the "George Brown/Mitchnik analysis", and concluded that so-called
"pure Continuing Education" teachers, were outside the bargaining unit, and therefore
were not covered by any of the negotiated terms of the collective agreement. In the
panel's opinion, this kind of teacher was not covered by Article 1 or any other collective
agreement provision:
"Accepting, as we do, that there is an ambiguity in the phrase
"academic employees" as it appears in Article 1.1 [the recognition
clause] of the collective agreement we cannot but conclude that
the long standing practice and conduct of the Union is
overwhelmingly consistent with the conclusion that the parties
have long recognized that the "pure Continuing Education"
teachers are not covered by the terms of the collective
agreement".
We agree with the observations of the Picher Panel in Cambrian, that it is
desirable for one arbitration panel to follow the lead of an earlier one, when dealing with
similar issues (although we are not obliged to do so - again see: Laurent Isabelle et. al v.
The Ontario Public Employees Union (1981) 81 CLLC p. 259 (S.C.C.)). We also think
that a page of history can sometimes be as enlightening as a volUme of logic (although it
is one thing to accept the legal analysis of another case, and another to accept, without
equivalent evidence, that panel's findings of fact). However, we do not find the analysis
in George Brown, as complete and compelling as the Picher panel did. Nor do we find it
so easy to ignore the statutory context, or to "read in" an "extra exclusion" to the
bargaining unit, for which there is no express statutory or contractual language -
particularly in the circumstances of the case now before us.
Moreover, it is one thing to say, as arbitrator Picher did in Cambrian, that
someone teaching "sewing" was not an "academic employee", and that therefore there
was some "ambiguity" in that term, which made resort to extrinsic evidence permissible.
It seems to us that it would be much harder to say the same thing for someone teaching
courses for academic credit, as part of an established diploma program - courses that are
part of the College's regular curriculum, and that are identical in content and academic
outcome to the courses taught in the day school. For, however, ambiguous the term
"academic" may be said to be, it is difficult to suggest that it does not encompass an
employee who "teaches" courses for academic credit, as part of an established diploma
program.
Looked at from this perspective, it seems to us that it is much harder to say
(as an application of the Cambrian, Picher and George Brown, Mitchnik reasoning would
require), that a "pure Continuing Education teacher", who teaches courses for academic
credit for the requisite number of hours (> 6 hours per week, but conceivably, full time as
well), cannot be an "academic employee", and, in fact, is not an "employee .... employed
as a teacher" either. It would require an inference - nowhere supported by either the
language of Article 1.01 or by the language of Schedule 1 of the CCBA - that there is an
11 th exclusion from the statutory bargaining unit; namely: "employees teaching courses in
Continuing Education".
Put differently: it would require an inference that there is a grouping of
teachers, teaching academic courses, who are nevertheless outside the academic staff
bargaining unit, and perhaps outside of the scheme of collective bargaining altogether -
not because of the hours that they teach, but because they do their teaching in
"something" (undefined in the collective agreement and unmentioned in the statute or the
recognition clause) called "Continuing Education".
The George Brown/Cambrian analysis raises an issue, which, to be fair,
neither arbitration panel had to squarely address; because they were not dealing with
courses being taught for academic credit. However, in the result, we do not think that the
George Brown and Cambrian cases should be taken any farther than their particular facts
or approach - an approach which does not appear to give much weight to the statutory
considerations, and which held, in effect, that the collective agreement did not apply to
employees teaching in Continuing Education, because the parties had not applied it.
Moreover, central to the reasoning in both cases, (but especially the Picher decision) is
the notion that it is open to the parties to negotiate the parameters of the bargaining unit,
so that their intention in this regard is what is paramount - a notion that does not fit easily
with the requirements of the CCBA, and is even harder to accept, when the "teaching" in
question involves courses for academic credit.
And for that reason, we think that we have to look at these two decisions
with considerable care.
Now to be clear: this is not to say that a particular negotiated provision
. . will necessarily apply to employees teaching in Continuing Education, or that the parties
. are precluded from exempting Con Ed employees from the application of various
provisions of the collective agreement (other than the recognition clause), or that the
parties are prevented from negotiating special provisions that apply to Con Ed, or only to
Con Ed. Moreover, even if a particular provision might nominally apply, the union may
still not be able to insist upon its application; for as arbitrator Mitchnick noted, estoppel
may come into play, and there may be other "defences" as well. The non application of
~ · particular provisions which one would expect to be applied, can be fatal from both an
interpretative and estoppel point of view.
L , However, in our view, the analysis of "bargaining unit" composition that
underlies these two cases, has to be approached with some considerable caution - at least
insofar as it purports to apply to employees, teaching courses for academic credit, for
L. · numbers of hours well beyond the "part-time" level.
. , The notion that "Continuing Education" is an enclave of teachers and
teaching work that is beyond the scope of the bargaining unit, was also considered in two
more recent cases: Fanshawe College (Brown, October 2002) and Algonquin College
(Knopf, August 2001).
In Fanshawe College (Brown, October 2002), the college decided that a
full-time certificate program on multi-media design would be offered through
"Continuing Education"; and the union claimed that the college was obliged to designate
and post the jobs associated with that program, as bargaining unit positions. The union
relied upon Article 2.02, together with the job posting provisions in Article 27.11. The
college replied that because the program was in "Continuing Education", the collective
agreement did not apply at all, and that, therefore, the college was not obliged to post
these new teaching jobs. By delivering the teaching through Continuing Education, the
College was able to avoid the application of the collective agreement. However, after
examining the nature of the program in some detail, the arbitration board agreed with the
union's position:
We find that the approval process for the Multimedia Design and
Implementation Program which was used to bring it within the
Continuing Education School of the College and not as a regular
program is not the decisive criteria for the Board. It is the
evidence that the aim of this Program was to provide the students
who have completed the steps represented by the individual
courses within the Program to obtain a certificate from the
College which would be of use to them in obtaining employment
or other positions or placements where their upgraded skills have
value. That is what the students of this Program would expect as
a result of completion of all the courses within the Program which
required full-time attendance in order to obtain the course credits
leading to the College certificate. The Multi-Media Design
Program is by its stated purpose as advertised aim (sic) along
with the evidence of the method used in the delivery of the
Program cannot be found to fall within the pure or regular form
of part-time study within Continuing Education and is not thereby
excluded_from the terms of the collective agreement.
For these reasons, the Board finds that the grievance is arbitrable
under the provisions of the collective agreement and that it has
jurisdiction in this grievance.
Then, having found that the agreement applied to the program, even though it was being
delivered through "Continuing Education", the arbitration board concluded (emphasis
added):
The Board finds that the College was in ~iolation of Articles 2.02
and 2.03 of the collective agreement and had an obligation under
Article 27.11 to post a full-time position in the Multi-Media
Design program. That has been established in the evidence to be
a continuation of the Multi-Media Program with 20 hours of
teaching each week for 30 weeks which results in a full-time
equivalent position in the bargaining unit. The evidence indicates
to us that the program would be taught by one full-time and a part
time Professor. The cost and budgetary restraints which may
apply to such a program are not considered as a barrier to the
application of the collective agreement. [emphasis added]
The term "Continuing Education" is not defined in the collective
agreement, and what this decision seems to say, is that it is not open to the employer to
unilaterally determine what "Continuing Education" will encompass. Where the program
under review is not the kind of thing, with the kind of characteristics, that are typical of
"Continuing Education programs", it is not open to the employer to unilaterally assign
that label, thereby removing the work and the jobs from the bargaining unit. Nor were
budgetary considerations, a determining factor. And a critical (but by no means the only)
factor for the arbitration board, was that the courses in question were part of an integrated
set of credit courses leading to a recognized certificate.
Each of the parties in the present case, can take some comfort from some
portions of this award. The union emphasizes the proposition that it is not open to the
employer to unilaterally designate something as "Continuing Education" - thereby
removing the employees and the work from the scope of the collective agreement. The
union also notes the panel's apparent reluctance to accept that a recognized academic
program (leading to a certificate) was outside the scope of the collective agreement,
simply because the employer chose to deliver that program as part of something it called
"Continuing Education". The employer points out that there was a lot more influencing
arbitrator Brown than the fact that the courses in question were "for academic credit",
and (according to the College) the correspondence courses in the instant case, bear no
resemblance at all to what Mr. Brown was dealing with in Fanshawe.
Be that as it may, the decision once again highlights the problem that can
arise when it is said that certain "employees" doing "teaching" are beyond the scope of
the bargaining unit, or are excluded from the terms of the collective agreement, because
of the program in which their teaching is done.
It also illustrates the problem that can arise when the term "Continuing
Education" (mentioned in Article 27 and, it appears, nowhere else) is left undefined.
The closest case to the present one is Algonquin College (Knopf, 2001)
,
In Algonquin, the union complained that the college had failed to post
full-time positions in a "French as a Second Language" ("FSL") program, that was
situated in the Continuing Education Department. The FSL courses in question, were
both credit and non-credit courses.
89
The employer took the position that the collective agreement and the job
posting provisions did not apply to persons teaching FSL on a part-time or contract basis
within the Continuing Education Department, so that the matter was not "arbitrable". The
employer argued that since the jobs were not covered by the collective agreement, the
arbitration board had no jurisdiction over the staffing decisions made in respect of this
FSL program. Continuing Education was said to be an enclave of work and employees, to
which the agreement simply did not apply. Arbitrator Knopf records the employer's
argument this way:
The College's preliminary objection to arbitrability centers on the
assertion that the collective agreement and the posting provisions
do not apply to those teaching FSL on a part-time or contract
basis within the Continuing Education Department.
And further:
The College asserted two preliminary objections to the
~ arbitrability of these grievances. First it is asserted that the
collective agreement does not apply to Continuing Education and
contract positions. It also asserted that FSL employees are
· ' excluded from the bargaining unit and have never been treated as
. members of the bargaining unit. Because all the employees
teaching FSL are contract or sessional employees it is submitted
~ ' Ghat they are excluded from the bargaining unit, and that a board
of arbitration has no jurisdiction over the staffing decisions
concerning these employees.
As in the earlier cases, the college/employer asserted that it had never
considered employees in the FSL area to be members of the bargaining unit, with the
exception of one full time .coordinator. The college also relied upon the reasoning in
Cambrian (Picher) and George Brown (Mitchnik), for the proposition that employees
90
teaching only in Continuing Education ("pure Continuing Education teachers") were not
covered by the collective agreement. However, after noting that Cambrian and George
Brown involved individual employee grievances, and dealt with grievors who taught only
non-credit courses, Arbitrator Knopf said this:
The principles of these cases can now be applied to the case at.
hand. It is clear that teachers of non-credit Continuing Education
courses have not been recognized as having the status to grieve
under the collective agreement. However, the cases do give
recognition to the concept that some Continuing Education
teaching hours [i.e. work] may be relevant for some purposes
under the collective agreement. There may be scope for
recognition for teaching credit hours for purposes of workload
restriction on full-time teachers [what was held in Canadore].
The question before this arbitrator is a jurisdictional one. I do not
yet have to determine whether the Continuing Education hours
amount to a full-time position or the implications of such a
finding. But it is certainly within the jurisdiction of an arbitrator
under this collective agreement to determine whether credit hours
assigned in FSL comply with articles 2.02 and 2.03 A. Article
27.16 does not exclude Continuing Education hours .for all
purposes and protections q£ the collective agreement.
Further, while the George Brown and Cambrian College cases
draw a distinction between the credit and non-credit Continuing
Education courses, the cases did not address the status of the
Continuing Education credit courses for the purposes of triggering
protections of article 2..02 and 2.03 A. I note that the union has
recognized in its submissions, that non-credit courses are treated
differently than credit courses. Therefore, I must conclude that
this arbitrator has jurisdiction to determine whether the FSL credit
course assignments at the College comply with articles 2.02 and
2.03 A.
Leaving aside the arbitrator's reasoning for a moment, (and whether that
reasoning applies equally to "partial load bundles" of teaching work and "part time
bundles" of teaching work - only the former are mentioned in Article 2), what the
decision clearly says is this: that credit courses being taught in Continuing Education, can
, ~ be looked at for the purposes of Article 2, in order to determine whether there is enough
· work involved to amount to a full-time position:
I have also concluded that there is jurisdiction to deal with the
question of whether the combination of coordination and teaching
' duties can amount to a full-time position. It is clear that Ms.
Wakas would have no status to pursue such claim because she is a
part-time employee and therefore not a member of this bargaining
,P unit. This is consistent with the Fanshawe College and George
Brown (Picher) decision cited above. But the case at hand is a
Union grievance. It is not a grievance filed on behalf of Ms.
~- Wakas or seeking a personal remedy for her. Is a claim that the
"bundle" of coordination and teaching work amounts to a full-
time position. Whether the facts can establish this is a question
..... that goes to the merits of the case. But the jurisdiction question is
whether coordinating and teaching duties can establish a full-time
position within this bargaining unit.
Arbitrator Knopf held that even though the agreement may not apply to
pure Continuing Education teachers doing the teaching of the courses in question, so that
these teachers, themselves, might not be able to claim protection under the collective
agreement, the union can still look at that bundle of work, that they were doing, for the
purposes of Article 2. That is: even if the employees doing the teaching were outside the
bargaining unit, the teaching work might be accessible under Article 2; and further that if
the work could be bundled together into a full time job, that job would be in the
bargaining unit.
The actual result in the Knopf decision is very similar to the one that the
· ~ union urges us to make in the instant case: to apply Article 2, to credit courses being
given in Continuing Education, by persons working 12 hours per week. However even in
~, .Algonquin, the arbitrator was influenced by the parties' practice, which was to treat the
92
full-time coordinator of the FSL program, as falling within the academic bargaining unit,
even though the work that she was doing was exclusively in Continuing Education. The
College's practice was inconsistent with the proposition that it was advancing: that
Continuing Education work and employees were beyond the ambit of the agreement.
Arbitrator Knopf was also influenced by the fact that the case before her
was a union grievance, asserting authority over a bundle of work, which might be done
by members of the full time bargaining unit (something contemplated by Article 27.16, if
the employer had decided to use regular full timers to do it). It was the union claiming
jurisdiction over credit course work for its regular members, rather than a claim that the
persons actually doing that work were employees in the bargaining unit. It was a little
like Canadore; and it was not at all like Cambrian or George Brown. And in arbitrator
Knopf's opinion, that bundle of work was potentially accessible to the agreement's
application, even though it was done in Continuing Education.
The Algonquin decision was about "arbitrability" and Arbitrator Knopf did
not ultimately decide what the outcome would be, if Article 2 were applied to the
circumstances before her. However, whatever else the decision stands for, it does not
accept that teaching in Continuing Education, is an enclave of work that is beyond the
scope of the collective agreement. On the contrary, Algonquin (Knopf) holds that Article
2 can be applied to that work, as least insofar as credit courses are concerned. But the
decision pointedly does not determine what happens if a full time position is created as
result of the application of Article 2.02:
93
... Therefore I have concluded that I have jurisdiction to consider
whether the FSL credit course assignments comply with articles
· ' 2.02 and 2.03A of the collective agreement. I have also concluded
, ~ that Article 27.16 [upon which the employer relies in the instant
case] does not preclude consideration of the combined
coordination and teaching of credit courses in the FSL department
.... for the purposes of articles 2.02 and 2.03A. I have not answered
the question of the effect of article 27.16 on any full time
positions that the union may be able to establish in FSL. But that
· . is not a jurisdictional question. That goes to the merits of the case
and the extent of the remedies available.
With that background, then, we return to the particular issue raised before
us, in this case; namely: whether Article 2.02 is capable of being applied to the
employees and the work assignments that were being done here, at "partial load hours",
overseeing the ECE credit courses, in a College Diploma program, given through
"Continuing Education". Is the situation as simple and straightforward as the union says
it is: that the credit courses for which these employees were responsible, were just
another "partial load teaching position" as "defined in Article 26" which can be looked at
under Article 2.02? Or is it evident from the overall context, that Article 2.02 has no
application at all ? Once again, Article 2.02 reads as follows:
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 26, Partial-Load Employees,
subject to such operational requirements as the quality of the
programs, attainment of the program objectives, the need for
special qualifications and the market acceptability of the
programs to employers, students, and the community.
VI - Discussion
There is no direct evidence of the parties' intentions with respect to the
meaning or the application of Article 2.02 (in this case, the provincial bargaining parties'
intentions, since this is .a provincial collective agreement) - or, in fact, the bargaining
parties' intentions with respect to the interpretation of any other provision of the
collective agreement (the meaning of "Continuing Education" for example). However,
the employer urges us to look at some of these other provisions in order to understand
how the parties "must have intended" Article 2.02 to be applied; and the union urges us
to look at the requirements of the CCBA, as well.
In this respect, both parties assert that an examination of the overall
context, will assist us in the interpretation or application of Article 2.02 -what the parties
"must have intended" Article 2.02 to mean, or how they "must have meant Article 2.02",
to be applied.
We accept that this is a valid approach to interpretation. But we embrace it
in this case; with some reluctance. For while looking at the "context", can sometimes be
helpful in construing ambiguous provisions, it involves a consideration of other
provisions that are not directly in issue; moreover, the explanatory power of this
approach, will necessarily depend upOn whether those other elements of the legal context,
are so clear, and so unambiguous, and so beyond legal dispute, as to provide a reliable
guide to interpretation.
95 ~ ~
' · Because, in order for this interpretative approach to be helpful, the
comparison with those other provisions must demonstrate something in the nature of an
· . incongruity, which makes one proposed interpretation of a disputed clause clearly
preferable to another. The reader must be able to conclude that "the parties could not
have meant THIS over here, if they have written THAT, over there". Similarly with
~-~ respect to the consequences of alternative interpretations: it must be evident that the
consequences were so obviously unintended that the agreement could not have been
intended to produce that result.
And we are by no means certain that that is so, in the instant case.
Not to put too fine a point on it: Article 27 plays a pivotal role in the
employer's argument, but it is by no means clear to us that Article 27 has either the
meaning, or the "preclusive effect", that the employer says it does (i.e. that because
Article 27 may not apply to Continuing Education work in some circumstances, then an
entirely different provision, Article 2, does not apply to Continuing Education work
either - ever).
Nor, in our view, are the employer's arguments about the "scope of the
bargaining unit", so clear, and unequivocal, and beyond legal dispute, as to be a reliable
guide to the interpretation of Article 2.
96
It will be convenient to make some general observations about the context,
then return to the language of the collective agreement, and the employer's related
argument with respect to the scope of the bargaining unit.
It appears to us, that the primary focus of Article 2.02, is on "work" that is
being done by one or more bargaining unit members on a partial load basis under Article
26, but that could be done by other bargaining unit members, on a regular, full time basis.
Article 2 is about teaching assignments; and as we have seen from the cases and from
Article 27 itself, there is nothing novel, or unusual, about applying at least some
provisions of the collective agreement to teaching work being done in "Continuing
Education". For example, there are arbitration decisions which hold that the workload
provisions of the collective agreement can "reach out" and apply to such work - at least
when it is being done as part of a regular full time work assignment; and in Algonquin
College, Arbitrator Knopf held that Article 2 itself could be applied to the credit course
teaching work, in Continuing Education, when it was the union that was invoking Article
2, and was seeking to apply Article 2 to the Con-Ed work.
The fact that the employees doing the work in question might not be in the
bargaining unit, did not deter Arbitrator Knopf from holding that Article 2 might be
applied to the work that they were doing; and, in fact, it is plain that portions of Article 2
can apply to the teaching that is being done by persons who are working outside the
97 .
bargaining unit, because Article 2.02A applies to the teaching done by sessionals - who,
it is agreed, are not in the bargaining unit.
These cases reject the notion that credit course teaching in Continuing
Education is an enclave of "work" that is necessarily beyond the reach of the collective
agreement's provisions; and Article 26 itself confirms that that provision of the
agreement, can apply to Continuing Education teaching, at least sometimes.
In short, the collective agreement can, and does, apply to Con Ed work
assigranents, in some circumstances, even when the work is being done by someone
outside the bargaining unit; and of course, there is nothing on the face of Article 2 (or
Article 2.02), that actually says that Article 2 "does not apply" to work, or to employees,
in Continuing Education. That is a limitation that the employer wants us to imply in this
case; but there is nothing on the face of Article 2 that actually says that.
We might also observe, parenthetically, that the parties to this collective
agreement have had no difficulty saying, in various places, that one or other provision of
that collective agreement "does not apply", or has "no application". They know the words
to use, when that is their intention. Articles 4.02A4, 11.01D3, 27.07, 11.02F6, and 26.10
are examples of that kind of wording- as is Article 27.16 itself.
Nor have the parties had any difficulty distinguishing between jobs or
employees that are in the bargaining unit, and jobs or employees that are not in the
98
bargaining unit (see for example Article 27.03E). Once again, the parties have no
difficulty finding the words to confirm their understanding that positions or people are
out of the bargaining unit, or are beyond the reach of one or other provision of the
collective agreement.
However, there is no such language in Article 2.
There is nothing that says that Article 2 "does not apply" to credit courses
in Continuing Education; just as there is nothing that says that persons teaching those
credit courses (for more than "part time hours") in Continuing Education, are outside the
bargaining unit altogether (assuming, for the moment, that it is open to the parties to
create such exclusion)
Accordingly, the employer urges us to "read in" such limitation, without a
"linguistic foundation" for it, and even .though the kind of language which would create
such limitation can actually be found - expressly - elsewhere in the agreement.
And what are the work functions that the union contends should be
bundled together into a full-time job? What were the two target employees actually doing
in respect of the delivery of these ECE courses, that were being given to students, for
academic credit, through Continuing Education?
In our view, what they were doing, is fairly and sensibly and accurately
described as "teaching"; so that what the target employees in this case held was a
"teaching" position - they were employed as teachers.
Certainly, if their work had to be characterized as either "teaching work"
on the one hand, or "support staff work" on the other [the two broad categories of
.. · employees for whom collective bargaining rights are created under the CCBA], then the
' ' former label more accurately describes what the target employees were doing.
The two employees whose work/positions gave rise to this dispute, are
responsible for delivering courses which are taken by students, for academic credit, as
part of a defined academic program, that leads to a regular College diploma. They are
part of an organized system of programmed instruction, with recognized "credit"
elements, and a recognized academic outcome. And that outcome is the same ECE
Diploma, that the day school students get, by mastering the same course material. In fact,
day school students can take credit courses in Continuing Education, and count those
credits towards their diploma (the same diploma, regardless of the course delivery
system).
The instructional, methods in "distance learning" are obviously different
from those used by the "teachers" in the regular day school program. There is no regular
classroom teaching with a group of students; but instead, more individualized interaction,
and assessment, based upon a set of lessons and materials that each student works
through, at her own pace. What the course directors do, is more like individual tutoring or
counselling, than delivering a lesson to a full class. And the communication with each
student is by electronic means: telephone, fax or email, rather than face t° face.
However in our view, what they are doing is "teaching" the students
enrolled in those courses; and they are fairly and properly regarded as "teachers". Which,
interestingly, is how they are described by the employer itself, in Exhibit 5 - the
document that the students are given to identify who will be responsible for their courses,
and to whom those students should go for assistance in learning the course material. And r.,
that is also how they were paid, (i.e. as partial load teachers), at least for a while, before '
the employer changed its practice; and even the College's reply talks about the course
material "being taught" - albeit not in a full time program, and pursuant to different .~
funding arrangements. '~
We do not suggest that this document, (entitled "ECE INSTRUCTOR
INFORMATION") provides a definitive interpretation of what the word "teacher"
means, from a legal point of view. Nevertheless, it is not without interest that the
employer itself describes these individuals as "teachers" or "instructors", or that the
normal or common sense meaning of that term, can be fairly applied to them in this way,
or that that is the way that the employees were paid, before their rates were "grand-
mothered". Moreover, it certainly appears from the documents put before us, as if the
course directors are being identified as part of the academic staff (as opposed to the
support staff); and there is nothing to suggest that they lack the academic credentials to
do the advising, explaining and grading etc. which the students may require, on an
individualized basis (at $55 per hour for one employee and $86 per hour for the other).
We do not have much evidence with respect to the practice of teaching
credit courses in Continuing Education, but the practice evidence with respect to the
target individuals, is that they were being treated as partial load teachers.
This is not a setting in which the students "teach themselves" - as might
be the case if the teaching/learning modules were entirely "online", and there were no
staff members assigned to provide the students with personalized guidance or assistance.
The students do not "learn" entirely on their own. Rather, the course directors provide
ongoing assistance with the prescribed subject matter, for those students who need it;
they help the students along with their learning; they provide ongoing evaluation and
feedback on whether the student is absorbing the course material; and there is a final
evaluation, confirming the student's mastery of the assigned subject matter.
In our view, this is properly characterized as "teaching work"; and since it
involves the teaching of courses for academic credit, we have no difficulty in saying that
it is "academic teaching world' as well. This is not belly dancing, or sewing, or general
interest photography, for that matter. These employees are responsible for the delivery of
academic subject matter, and are expected to assist students to achieve a defined
academic outcome: course credits towards a diploma in Early Childhood Education - the
same courses and credits and diploma that students in the day class get.
102
The College argues that these two individuals cannot be "teachers" for the
purposes of Article 1.01 (the bargaining unit definition in the collective agreement), and
they do not hold a partial load "teaching position" for the purposes of Article 2.02,
because they do not fit easily within the salary provisions found in Article 14 - which, in
tum, lead the reader to that portion of the collective agreement entitled
"CLASSIFICATION DEFINITIONS FOR POSITIONS IN THE ACADEMIC
BARGAINING UNIT, [which are] to be used in conjunction with the Job Classification
Plans for positions in the Academic Bargaining Unit"). College counsel submits that
when those provisions are read, as a whole, it becomes apparent that they only apply to
"teachers" in a regular classroom setting. The setting here is entirely different, it is
argued, so that the disputed individuals were not really "teachers" for the purposes of the
collective agreement, and they did not hold a "teaching position" either.
Accordingly, the submission seems to be that even if the target individuals
are colloquially (as in Exhibit 5) described as "teachers" or "instructors", and even if the
personal tutoring that they do, can be fairly regarded as a form of"teaching", they are not
actually employed as "teachers", and 'do not actually hold a "teaching position" for the
purposes of the collective agreement.
However, we do not find that argument to be persuasive. ~ '
103 · ~
Is not at all clear to us that the parties can exclude from the collective
agreement someone who is employed as teacher for 12 hours per week - whether it is
done via the recognition clause Articlel.01, or whether it is done implicitly via the job
classification or salary scheme. Nor in fact is there such express exclusion. Article 1.01
does not say "save and except teachers teaching in a non-traditional setting"; and we are
not inclined to imply that exclusion by reference to the job classification or job evaluation
plans.
Once again, if the parties had intended such exclusion, they could easily
have said so (whether that would collide with the CCBA is another matter).
The fact that the disputed individuals may not fit easily into the job plans
may make it difficult to calculate what with their salary should be; but that does not mean
that they are not "teachers", or that they are excluded from the bargaining unit, or that
they do not hold a "teaching position". Moreover, it is not are all clear to us, looking at
these materials, that a partial load teacher or a full-time teacher could not be "fitted into"
these descriptions, despite the non-traditional teaching methods; for the fact is, in the
instant case, the two target individuals were being treated as part of the bargaining unit
for some time prior to the filing of these grievances, and the employer had no difficulty
applying whatever clauses were necessary to slot them into the appropriate salary scale.
We have read both Article 14 and its linkages to the job descriptions in the
collective agreement. However, we are not persuaded that the "teachers" under review
104
cannot be fitted into the language of these provisions - as they seem to have been for
sometime before this grievance was filed; or that these descriptions provide a litmus test
for the application of Article 2.02. Nor that the reference to such definitions clearly
demonstrates that the target individuals here, are neither "teachers" nor occupying a
"teaching position" - where, as here, the plain meaning of those words (and even the
employer's own documentation), is broad enough to cover them, and they were
responsible for delivering credit course material, to students, as part of an integrated
diploma program.
Given what the target individuals do, it would take the clearest possible
language, found elsewhere in the agreement, to persuade us that these individuals were
not "teachers", were not "teaching", and did not occupy a "teaching position"; and we do , ,
not find that Article 14, or its associated clauses, so clearly supports to that conclusion.
We will return in a moment to what that might mean for their "status"
under the collective agreement, and whether they are excluded from the bargaining unit.
At this point we simply note that, in our view, what the course directors are doing in this
case can fairly be described as "teaching"; that they are "teachers" of "academic"
subjects, and that for quite some time, each of them held a "teaching position", delivering
the ECE credit courses to which we have referred.
We might also emphasize, that in this latter respect, what the target
individuals were doing in this case, is different from what the grieving employees were
105
doing in Canadore (Picher) or George Brown (Mitchnik); and is more like what
Arbitrator Brown had before him in the 2002 Fanshawe case, or Arbitrator Knopf had
before her in her 2001 Algonguin case. So even if the former two cases are correctly
decided, they are distinguishable on this point.
Against that background, we see nothing bizarre about the union
suggesting that this bundle of academic work, delivering credit courses to students, as
part of a recognized diploma program, might be aggregated to create a full time academic
job -just as it is not surprising that a clerk putting together a list of "all hirings of
personnel assigned to teach credit courses .... ", [the wording of Article 27.12] might think
that persons delivering credit courses in Continuing Education, should be included on
that list. Nor is it surprising that the College itself may have treated these individuals (or
others similarly situated) as if they were covered by the collective agreement - and, we
find, actually pay them as if they were partial load employees, until they were later
"grand-mothered" at those rates. For as we have already mentioned: while the College
invokes practice to support its interpretative position, its practice, for some time, was to
treat these individuals as part of the bargaining unit - as, it appears, it did for some other
teachers of credit courses, in other Con-Ed Diploma programs (recall the voters' list
controversy during the last round of bargaining).
So in our opinion, there is nothing unusual or incongruous about the
union's position, nor is it even unsupported by practice - as least as far as those working
at the partial load level of hours is concerned.
106
On the contrary, what is unusual, in our view, is a scenario in which there
are said to be College employees, teaching academic credit course material, for 12 hours
per week (the "partial load level"), but who are not included in the bargaining unit and
whose work hours, teaching credit courses would not be available or aggregated to create
a full time job - particularly when Article 27 itself contemplates that full time employees
can do Continuing Education work, and also that Con-Ed work can be "included in the
regular assignment of a full time employee".
For of course, the purpose of Article 2 is to create full time work
assignments, and the clause itself does not define or limit the programs where such
teaching work (the work to be bundled up) can come from.
In any event, does the wording of Article 27.16 suggest that an entirely
different article - Article 2 - was not intended to apply to the teaching of credit courses
given through Continuing Education? Does the non-application of Article 27, command
the non-application of Article 2 as well? Is that a compelling, or necessary implication,
from the way in which Article 27.16 is framed? We do not think so.
Article 27.16 provides that in certain stated circumstances, Continuing
Education and extension courses are "excluded from the application qfthis Article". In
this respect, Article 27.16 is one of those provisions (like Article 4.02A4 or Article 27.07,
107
mentioned above) which indicate, expressly, when a particular clause will apply, and
when such clause will not apply.
Article 27 creates an array of rights and obligations, and then stipulates a
limitation on the application of those fights and obligations. There is a listing of
provisions, followed by a specific exemption.
But Article 27.16, by its own terms, is only applicable to Article 27, itself.
The impact of Article 27.16 is confined to the "application q£this Article". Article 27.16
says nothing about the application of any other Article in the collective agreement; and,
in particular, it says nothing about the application, or non-application, of Article 2. If
anything, the use of the limiting words "of this Article", suggests that there may be other
articles whose application may not be so limited.
There are a number of clauses in the collective agreement that contain
~ · exclusionary language ("will not apply"/"no application"). Article 27.16 is one of them.
And had there been similar exclusionary language in Article 2, like there is in Article 27,
this would be a very different case. For, there is no doubt that the parties could have said,
expressly, that Article 2 does not apply to Continuing Education programs.
But there is no such language in Article 2; and, as we have suggested
earlier on, we think that it is much more difficult to "imply" such additional limitation,
(i.e. to read Article 2 as if Article 2 said something like: "Continuing Education and
108
extension courses ....are excluded from the application of this Article" - to borrow the
words of Article 27.16) when various forms of limiting language, of the very kind that
the employer would like us to imply, can already be found, explicitly, elsewhere in the
collective agreement. That was the opinion expressed by Arbitrator Brown in connection
with the work load provisions of the collective agreement (see the passage from
Canadore reproduced above); and we think that the same thing can be said about the
wording of Article 2.
Had the parties wished to exclude Continuing Education from the ambit of
Article 2, they could easily have done so expressly - as they have, to some extent, in
Article 27 itself. But they did not; and in our view, the presence of such express
"exclusionary language" in Article 27.16 and elsewhere in the collective agreement,
actually makes it harder to "imply" the same kind of thing in Article 2, and suggests that
we should not do so.
.
There is also something counterintuitive about relying upon the limiting
language in Article 27.16, to imply a limitation of a similar kind, on the application of
Article 2, (which is designed to generate regular full-time jobs for bargaining unit
members), when Article 27.16 itself, makes it clear that if the Continuing Education work
is part of the "regular assignment of full time employees", then the other parts of Article
27 are not limited and do, indeed, apply.
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Indeed the whole purpose of Article 2 is to create the very kind of full
time work assignment, which, superficially at least, takes the position outside the
exemption created in Article 27.16.
For the exemption itself has its own built in limitation: it does not apply
when the Con Ed teaching is included in the regular assignment of a full time employee.
When the double negatives in Article 27.16 are distilled out, Article 27.16
says that the Article 27 provisions/protections DO apply to Continuing Education courses
and programs, when the Continuing Education programs and courses in question, are
included in the "regular assignment qf full-time employees ".
The assignment must be regular, and it must be full time; but if it meets
those conditions, then Article 27 applies.
However, the purpose of Article 2 is to create regular teaching
assignments for full-time employees by looking at the work that is being done by partial
loaders, then determining whether there is any operational reason why that work cannot
be combined to create a regular, full time job. That is what the "full time preference" is
about: it encourages the creation of more regular full time jobs for bargaining employees.
In other words, if Article 2 were applied here to the teaching work in
Continuing Education, in order to create a regular full time work assignment teaching
110
ECE credit courses, then it would (on the surface, at least), create precisely the kind of
full time work assignment that, on the face of Article 27.16 (i.e. looking at the words that
have been used in Article 27.16), would avoid the exclusionary impact of that provision
- a provision which the employer here relies upon, to show that Article 2 was never
intended to apply to Continuing Education courses at all.
For example: suppose an employer had acquiesced to the union's request,
and had taken some (ostensible) partial load positions like those here under review, and
created a single position, (which is what the union says that Article 2 requires), with full
time hours. In that scenario, a full time College employee (measured by hours) would
then be doing a regular teaching assignment, teaching credit courses, in Continuing
Education.
Would this new bundled together job, not then be the "regular assignment
of a full time employee" - thereby coming within the plain meaning of those words in
Article 27.167 And if not, why not?
Why would a regular teaching assignment, of full time hours, teaching
credit courses, in Continuing Education NOT be the "regular assignment of a full time
employee" - the words used in Article 27.167
111
And if Article 27 then applied to this newly created regular full time job,
why would the employer not be obliged to apply, inter alia, Article 27.12 to such persons
when they were teaching credit courses?
The cornerstone of the employer's argument is the non-application of
Article 27. But in order to get to that conclusion, one has to accept an interpretation of
Article 27.16, which, in our view, is decidedly dubious, and, (again in our view), finds no
persuasive support in the wording of the clause itself, or in the existing arbitral
jurisprudence.
In our view, the argument respecting Article 27.16 is circular; but it serves
to emphasize the real basis of the employer"s position (and the one that was identified by
the employer in its response to the union grievance, and that was articulated by Ms.
Bleakney in her testimony, and that was raised in argument as well); namely: that, in the
employer's view, an employee with a regular full time assignment, teaching credit
courses-BUT ONLY IN CONTINUING EDUCATION, is "outside the bargaining unit"
and outside the collective agreement altogether - not because s/he is not an employee of
the College; and not because s/he in not a "teacher" in the normal sense of that word; and
not because s/he is "teaching" fewer than 6 hours per week (so as to be an excluded as a
part-timer); and not because s/he is not an "academic employee":, and not because there is
any express exclusion of Continuing Education work or Continuing Education employees
from the collective agreement; but rather because there is something special about
112
"Continuing Education", that takes the Con Ed employees and their work outside the
bargaining unit.
Which brings us back to the employer's argument with respect to Article
1.01, the scheme of the CCBA, and the two arbitration decisions (George Brown
Mitchnick and Canadore Picher) that adopted the "pure continuing education employee"
terminology- holding that such teachers were outside the bargaining unit, and outside the
ambit of the collective agreement altogether, regardless of the fact that they were working
more than part-time hours.
Because if those decisions are persuasive, the two target individuals in this
case - being "pure con ed employees" - would not be in the bargaining unit when they
were working partial load hours, and a full timer, doing a bundled together job, made up
of what the two of target employees were formerly doing, would not be in the bargaining
unit either.
There is an internal logic to that position - provided that one accepts its
premise: that an employee who teaches credit courses, at partial load or full time hours,
but exclusively in Continuing Education, is outside the bargaining unit.
Since the purpose of Article 2 is to create full time jobs for bar~ainin~ unit
members, if the application of Article 2 would not have that effect - if the job so created
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would be outside the unit - then it is reasonable to infer that Article 2 was never intended
to apply to that situation.
Or to put the matter another way: if bundling up "pure Con-Ed credit
course work" to the level of full time hours, will not create a regular full time job in the
bargaining unit, then it is reasonable to infer that Article 2 was never intended to require
such bundling up.
Likewise, if pure Continuing Education teachers are outside thc bargaining
unit, regardless of the hours they teach, then the target employees are not partial load
members of the bargaining unit either (i.e. they are not occupying "partial-load teaching
positions, as defined in Article 26, Partial-Load Employees" - which words, we think,
clearly envisage a teaching position occupied by an employee to whom Article 26
applies).
Accordingly, the position articulated by the College in its reply to the
grievance and described by Ms. Bleakney in her evidence, is entirely consistent -
provided, once again, that its premise is correct.
Bu~ there is no case that actually says that someone teaching courses fo__r.r
academic credit, on a full time or partial load basis, in Continuing Education, is "outside
the bargaining unit" (George Brown and Cambrian did not involve courses for academic
credit), and quite frankly, it is difficult to see how that position can be maintained with
114
reference to either Article 1.01 or the CCBA. Because it would be to say that there is a
category of College employee, employed as a teacher, working on a full time or partial
load basis, teaching academic courses for academic credit, who is beyond the ambit of the
collective agreement and beyond the reach of the statute, because s/he happens to be
doing her teaching in some contractually and statutorily undefined envelope known as
"Continuing Education" - a proposition for which there is no linguistic support
whatsoever, in either the statute or the recognition clause of the collective agreement, and
which in our view, is not persuasively supported by the arbitral jurisprudence either.
Moreover, whatever might be said with respect to employees teaching general interest
courses, it is difficult to maintain that proposition for someone engaged in "teaching" the
academic curriculum of the College. Nor do we think that we should lightly conclude (as
the panel in George Brown contemplates) that the parties did not actually bargain about
the bargaining unit that they are obliged, by statute, to bargain about; but rather, they
actually negotiated a collective agreement in respect of something different.
.
For present purposes, we do not have to explore, let alone decide, what is
or is not "Continuing Education". The collective agreement does not define that term;
and we need not attempt to do so here. Nor do we have to explore the extent to which the
bargaining parties can treat Continuing Education employees differently - as they are
clearly entitled to do.
It suffices to say, that, in our view, College employees who teach courses
for academic credit, for the requisite number of hours, do not "slide out of the bargaining
115 , ~
unit", because those courses happen to be given outside the traditional classroom setting,
or in something called "Continuing Education".
We do not think that the George Brown analysis applies in this case, and
in any event, we decline to apply it.
In our view, the two target individuals, working 12 hours per week,
delivering credit courses, held "partial load teaching positions", within the meaning of
Article 2.02, and it was therefore open to the trade union to request an operational
justification for not combining those two "partial load teaching positions" into a "regular"
"full-time position" consisting of a combination of their course assignments.
In our opinion, Article 2.02, did apply to these credit course teaching
assignments, even though the courses were being given through the Continuing
Education/Distance Learning division oft he College.
Whether it could have been "successfully applied" (from the union's point
of view) in the particular circumstances, we need not determine at this point.
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VII - Disposition
As we have indicated in the opening portion of this award, this case was
put to us, and argued, in terms of "arbitrability": whether as a matter of interpretation,
Article 2.02 could conceivably apply to the particular facts under review. We did not
hear full evidence with respect to the operational justification, if any, for not applying the
clause to those circumstances; nor was there any other reason for its non-application, or
any other defence to the union's claim that Article 2.02 should be applied in the
circumstances before us. The case was put to us, in a limited way, as a neat preliminary
issue of interpretation - albeit one that drew us into a consideration of other portions of
the collective agreement, and other parts of the legal context.
On the other hand, we also heard that the situation changes from academic
term to academic term, and, in fact, we were told that one of the individuals in question
has gone on to become a full-time employee in any event. So it is by no means clear that
the situation remained the same as it was in the limited factual snapshot that was
provided to us for the purpose of considering the parties' arguments with respect to
Article 2.02 - a snap shot that captured a couple of individuals, whose employment
situation seems to be quite different from others in Continuing Education, and a snapshot
that, it appears, was not as panoramic as was put before the arbitrators in some of the
other cases to which we were referred.
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Finally, because the argument focused solely on the potential reach of
Article 2.02 - whether or not it could be applied - we do not think that we had complete
submissions on what the result should have been, if there were no operational
justification, or what the remedy would be for the union - now - if the employer's
operational explanation fails to pass muster.
The parties confined themselves to the preliminary hurdle, and did not
fully explore what might follow further.
In all of circumstances, therefore, we think it is appropriate to merely
declare that, in our opinion, Article 2.02, was arguably applicable to the circumstances
put before us (i.e. that the union's claim was "arbitrable" in this respect), and to remain
seized in the event that there is any continuing dispute between the parties, with respect
to the actual application of Article 2.02 in those circumstances - including (inter alia)
what remedy, if any, would be available to the union for any "unjustified" non-
application of Article 2.02.
Dated at Toronto, this 22nd day of July 2005
"Sheril Murray" "Ann Burke"
~~~ [ addendum attached] [dissent attached]
R.O. MacDowell Sheril Murray Ann Burke
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Dissent of Board Member Ann Burke
Having had the opportunity to review the majority award, I find that I must respectfully
dissent for the following reasons.
The grievances before us were limited to whether articles 6 and 2 were violated when the
College refused to consider Continuing Education correspondence courses offered in
the ECE program, to cobble together a full time position. No argument was pursued in
relation to art. 6. The Union did not grieve a violation of art. 1. It is understood however
that our decision can and should take into account the entire collective agreement in order
to determine the parties' intentions in respect of art. 2 and its application to the courses in
question. Similarly, it is important to. consider the parties' practices in this regard.
On the evidence, I believe that it is clear and undisputed that the parties have never
applied art. 2 to Continuing Education courses in the ECE program or otherwise. The
Union has not previously claimed that these courses should be considered in respect of
the application of art. 2, thus reflecting a shared understanding that Continuing Education
courses, irrespective of their nature and content, were not intended to be treated in the
same fashion as regular post-secondary programs.
The majority are correct in stating that the collective agreement does not define
"continuing education" however the parties' practice can and should be taken into
consideration in determining their intentions in this regard. I think it is fair to say that the
parties to this collective agreement are sophisticated and have had a long history of
collective bargaining. Had these parties wished to limit the courses which can be offered
through Continuing Education, they easily could have done so expressly. Union counsel
herself stated that the practice throughout the Province was to exclude these courses from
such consideration with, in her view, the intention of diminishing work opportunities for
full time staff. There was no evidence called in support of the latter contention however.
The question at the heart of this case, as stated by the Union, has turned on what
"continuing education" is and what type of courses may be offered in Continuing
Education programs. As described by Mr. Mc Fadden, we are here dealing with
correspondence courses in which the College sends students course materials and
assignments which the student is expected to complete without the benefit of classroom
presentation. They then send the assignments to an evaluator by post, facsimile or email.
Evaluators review students' assignments, evaluate them (may make comments) and
return them to students. Evaluators may be called upon to answer questions where a
student seeks this assistance.
The Union is of the view that courses resulting academic credit cannot be offered as
Continuing Education courses for the purposes of the collective agreement. On the
evidence before us, it is clear that academic post-secondary courses have beer} offered
through Continuing Education for some time and that the Union has not claimed that their
"academic" nature removes them from the treatment they have previously received under
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art. 27.16 or the balance of the collective agreement. That is, they cannot be claimed in an
effort to save bargaining unit positions nor to create them.
In my respectful opinion, the majority decision ignores the reality as it has existed for
some time between these parties. Despite the shared understanding of the parties and
presumably in response to the decision of Arbitrator Mitchnick in the 1993 George
Brown. case, the Majority has focused on the nature of the courses in question and finds
that any courses which might eventually lead to a certificate or diploma (i.e. courses for
academic credit) in which assignments/exams are evaluated and/or commented upon by
persons who might be working more than six hours per week, are available under art.
2.02 to create new bargaining unit positions. As will be seen below, we have no evidence
of the actual time regularly worked by evaluators. It appears that this conclusion is based
largely on the fact that they may answer students' questions, from time to time.
The Majority have found that art. 2.02 is intended to create new work opportunities for
members of the bargaining unit, irrespective of the type of work involved. This
notwithstanding that, as long as such courses are offered through Continuing Education,
employees may not rely on art. 27.11 A to obtain such "positions". In my view, the
danger of this decision is that the Majority's ruling either precludes courses for academic
credit being offered through the Continuing Education department by non- bargaining
unit employees or that the College must justify its decision to offer courses for academic
credit through that department. I say this because I am certain that the Majority is not of
the view that the College may engage only employees working six hours per week or less
to offer this same program, without any requirement to justify that arrangement. I do not
believe that the Majority accept that the College may hire exclusively part time
employees and thus circumvent the application of art. 2.02 and the balance of the
collective agreement. If it is the nature of the course which determines the application of
art. 2.02, the union may claim that any number of such courses must be cobbled together
to make a full time position. As an aside, based on my notes, we heard no evidence to
support a finding that historically many, if not most, of the courses offered through
Continuing Education have not been for academic credit.
I believe that the Majority is in error in rejecting the employer's analysis of the collective
agreement, an analysis which is completely consistent with the practice between the
parties. Leaving aside for the moment the emphasis placed on art. 1, it is inconceivable to
me that in light of art. 27.16 which clearly excludes Continuing Education courses '(when
not part of a full time employee's regular assignment) from the job security provisions of
the collective agreement (including the posting provision in art. 27.11, the bumping
provisions of art 27.06, the discussions of the College Employment Stability Committee
provided for in 27.05 and the requirement therein to give preference to full time
positions), art. 2.02 can be used to require the College to create new positions. Art 2.02 is
intended to prevent the employer from circumventing the impact of art. 27 (see for
example art. 27.02 B) by the use of partial load and sessional employees i.e. preventing
an individual from obtaining seniority by assigning work to individuals whose work
assignments do not attract, seniority. It is counterintuitive to find that art. 2.02 was
intended to include courses offered through Continuing Education in order to create work
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opportunities in general in the face of the fact that these same courses cannot be called
upon to save an employee's employment. To this extent, the interpretation urged upon us
is inconsistent with the balance of the collective agreement and would lead to a result
which was clearly unintended by the parties.
The term "teacher" is not defined in this collective agreement. The interpretation of art. 1
and the term "teachers", must be considered in light of the class definition, set out in the
collective agreement by the parties, under the heading CLASSWICATION
DEFINITIONS FOR POSITIONS IN THE ACADEMIC BARGAINING UNIT. As is
discussed below, neither the target individuals in this case nor any of the other evaluators
involved in this program perform duties which are central to the role of a "professor" or
even those of "Instructors". The evidence in respect of this is discussed below. Suffice it
to say that, at least as the bargaining unit is defined in art. l, the parties could not have
intended evaluators to be treated as "teachers" as contemplated by this agreement. This
understanding of the important distinctions between a "teacher" and an "evaluator" is
also evident from the fact that the latter do not have assigned "workloads" as defined in
art. 11 and in particular, they have no "teaching contact hours" as specifically defined in
art. 11.01 B 2. It is therefore not surprising that they do not receice SWF's. I cannot
accept that the reference to "instructors" and "teachers" in exhibit 5 is significant of
anything and surely it cannot be considered to overcome the clear class definitions in the
collective agreement.
As to the CCBA, the definition of "employee" in s. 1 of the Act refers to a person
employed by the College in a position or classification that is within the academic staff
bargaining unit set out in Schedule 1. Schedule 1 in turn refers to those who' are
employed as "teachers". The term "teacher" in the context of the case before us is not
defined in the Act and is ambiguous. It is therefore appropriate to look to the parties'
practice and understanding of the role of a "teacher" to interpret the statute. In doing so,
we are not being asked to find that the parties have excluded certain employees from a
statutory bargaining unit but rather we are required to give meaning to the language of
the Act, as it relates to the term "teachers". Clearly the parties by their practice and the
definitions of professor and instructor do not equate the work performed by evaluators in
this correspondence course to "teaching" nor did they include such individuals in their
definition or description of the duties of a professor or instructor. I do not accept that the
plain and ordinary meaning of "teachers" encompasses the evaluators in this case. The
Majority's view of the effect of the CCBA also ignores the fact that Continuing
Education courses are not funded by the Ministry as generously as those in the regular
day program. This was a point brought to the Union's attention in the course of the
grievance procedure and is persuasive evidence that the legislature did not intend to
finance these courses as would be required if full time positions were contemplated.
In view of the foregoing, I do not believe that the Board must "read anything in" to the
Act or the collective agreement in order to accept the College's position. The language of
both the Act and the agreement support the conclusion that those involved in the
evaluation of papers and exams are not "teachers" nor are they "teaching"
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I find that I must disagree as well with the majority's view of the evidence and the
conclusions to be drawn therefrom. In particular, for the reasons set out below, I disagree
with the statement at p. 40 of the award that the target employees were treated as ordinary
partial load teachers, who were members of the bargaining unit and covered by some of
the provisions of the collective agreement. I do not believe that the evidence was
consistent with that conclusion.
To begin with, the Majority places great emphasis on the finding that the courses in issue
contain the same subject matter and lead to the same diploma as the regular ECE program
offered in Kingston. The evidence indicates (exhibit 3 - College website - introduced by
the Union) that the courses offered by correspondence are not the same as those offered
in the regular day program and indeed there are required courses which are not offered by
correspondence (see description of ECE correspondence course, program code 0496,
paragraph 2). The differences here are not merely differences relating to which courses
are offered in any given semester. In fact, there are a total of 10 courses which are not
offered in the correspondence program (including Infant and Toddler Group Care, Music
and Movement II, a second semester field placement and four, third and fourth semester
field placement seminars). It is incorrect to say then that correspondence students take all
the same courses with the same course content and obtain the same diploma. It is also
incorrect to say that correspondence students are "taught" course material by "teachers".
There is no requirement of full time classroom attendance imposed on correspondence
students in the ECE program. The evidence is that the student works through the material
on their own, without the benefit of any "teaching" in the sense that the material is
presented to them by a "teacher". Unless they chose to contact the individual assigned to
mark their papers/exams, they have no direct contact with the evaluators. Even sitting
their exams must be arranged by the student who may do so at any community college or
university, under the supervision of a Proctor.
Similarly, I must disagree with the Majority's statement that the evaluators are "course
directors" responsible to oversee the delivery of the program and that they are "teaching"
the course material as that term is understood in the collective agreement. There are
clearly no "course directors" in the sense that they oversee the program or even
individual courses within the program. They have no overall responsibility for whatever.
The evidence in chief of Mr. Mc Fadden is undisputed that the individuals in question
perform two fimctions. They mark and comment on assignments and, if a student chooses
to contact them, they answer student questions. With respect to the latter, some evaluators
have office hours (3 per Week) at the College where they are available to students, others
are not required to attend at the College to speak to students at all. The oral evidence does
not support a finding that this program offers "individualized" tutoring nor do the
exhibits go so far as to suggest that one may expect such tutoring.
On the evidence we heard, these individuals are not responsible for curriculum
development; they have no responsibility for the content of the course materials; they do
not present or "deliver" course content to students or perform most of the core functions
of "professors" as set out in the class definition at p. 137-38 of the collective agreement.
They do not design, revise or update courses, nor do they perform most of the strictly
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"teaching" duties set out in that definition. They do not ensure "student awareness of
course objectives, approach and evaluation techniques" because they do not perform any
orientation to the program. They do not carry out "regularly scheduled instruction". They
do not provide a "learning environment". They do not provide any form of "academic
leadership" nor do they perform any of the "ancillary" tasks set out in the class definition.
They may respond to questions put by some students, if asked to do so however the
evidence indicates that they may have no direct contact at all with some students. There is
no evidence that they perform academic counselling. A review of the class definition
makes it clear that they perform only a very few of the normal duties of"teachers" as that
term is used in the definition of "professors" under the collective agreement. Similarly,
they do not perform all of the duties of an "instructor" under this agreement. Further, they
are assigned no "teaching contact hours" as per art. 11.01 B 1 (i). They are not involved
in "preparation" or "complimentary functions" as contemplated by art. 11. In short, they
do not have a "workload" as that term is understood in the collective agreement. In my
view, to find that evaluators are "teachers" seriously undervalues the impact regular
professors have on students and their programs.
The Majority also place emphasis on the fact that the College has treated two individuals
as "partial load" employees. The evidence in this regard is that the wage rates for
Continuing Education teachers is determined pursuant to the pay equity plan for non-
bargaining unit employees. While Mr. McFadden indicated that the target individuals
received rates in excess of those paid to other teachers in the program, he also stated that
their rates were in effect when he became involved in Continuing Education and that he
could only surmise how they were determined. In chief he merely opined that they were
paid higher rates because they had been there for some time. He clearly had no
involvement in establishing their rates. At most, he said he thought they were treated as
partial load employees. According to my notes, he did not use the term "grand fathered".
He stated that he was not sure what the relationship of these individuals was to the
collective agreement.
Mr. Mc Fadden stated that no effort was made to determine how many hours of work
were actually performed by those involved in the correspondence program. Even paid
hours were not, on the evidence, reflective of the actual hours of work performed. His
evidence indicated that there was an arbitrary formula used to determine hours worked
which had no connection whatever to the hours actually worked but rather was based on
the classroom hours which a student in the regular day program would take to complete
courses, i_f they were in a classroom of 30 and a teacher was presenting the course
content. No evidence was called to suggest that this formula relates in any way to the
work performed by evaluators and, based on the evidence presented, it is entirely
inappropriate to assume that evaluators are involved in anything similar to the classroom
hours of a regular teacher (preparation of class notes, handouts and the like). While Mr.
Mc Fadden gave evidence that he thought that the evaluators thought that they were
partial load employees, this was clearly hearsay evidence and he did not explain how he
came to this conclusion. In view of the foregoing, it is difficult to see how one can say
with any certainty that they worked or for that matter "taught .... more than six and up to
and including twelve hours per week on a regular basis" as per art. 26.01 B. He admitted
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that he had nothing to do with the deduction of union dues nor was he involved in the
development of the 27.12 list.
The only reliable evidence we heard with respect to the treatment of the "target"
employees is that they were not considered to be partial load employees by the College
because their work was in the Continuing Education department. The only evidence
concerning the art. 27.12 list was that this was an error committed by support staff
employees because, as an administrative matter, the Payroll Authorization Forms, used
' ' by the employees to compile the list, only distinguish between academic and support
· · staff-like work. There is no evidence that the "College" believed these individuals to be
partial load employees - only evidence of a clerical error. Ms. Bleakney also pointed out
' ~ that such errors occur from time to time and that even a support staff employee's name
~ . appeared on an art. 27.12 list. She also gave evidence that for some time the College has
provided more information than is strictly necessary on these lists. She gave evidence that
the deduction of union dues was an error and was corrected once it was discovered. It
· ~ was her evidence that exhibit 7 was prepared by the same support staff employees who
prepare the 27.12 lists and that they do so based on the same information as the 27.12
lists. There is no evidence that either individual claimed partial load status. There is
. certainly no evidence to support a finding that the College ever intended to treat these
individuals as partial load employees. On reviewing all of the evidence, I do not think it
can be said that the College intentionally treated or recognized the "target" individuals as
. . partial-load employees. In fact my review of my notes indicates that even the Union was
not suggesting that the appearance on the 27.12 list was evidence that they were being
treated as partial load employees. Similarly, it cannot be said that there was a practice on
~ ~. the part of the College of treating them as partial load employees.
Under this collective agreement, the College, in its discretion, may assign some
Continuing Education courses to existing full time employees, as per art. 27.16, but it is
equally clear that it is not required to do so. There is no such requirement even where a
regular full time employee is being laid off.
For all of these reasons, I would have dismissed these grievances.
"Ann Burke"
': · ADDENDUM OF BOARD MEMBER SHERIL MURRAY
I have had the opportunity to read both the decision of the Chair and the views of our
dissenting colleague. I have also had the opportunity to review my notes of the evidence
put before us. In my view, the evidence (or the reasonable inferences drawn from the
evidence) amply support the Chair's factual findings, and I agree with his analysis of the
collective agreement and his proposed disposition of the case.
"Sheril Murray"
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APPENDIX A
EXCERPTS FROM THE COLLEGES COLLECTIVE BARGAINING ACT
Definitions
1. In this Act and in the Schedules
"agreement" means a written collective agreement between the Council on
behalf of the employers and an employee organization covering terms and
conditions of employment negotiable under this Act;
"bargaining unit" means the academic staff bargaining unit of employees or the
support staff bargaining unit of employees a set out in Schedules 1 and 2.
"employee" means a person employed by a board of govemors of a college of
applied arts and technology in a position or classification that is within the
academic staff bargaining unit or the support staff bargaining unit set out in
Schedules 1 and 2.
ooo
Application of Act
2. (1) This Act applies to all collective negotiations concerning terms and conditions of employment of employees.
2 (2) No such collective negotiations shall be carded on except in accordance with this
Act.
Conflict
48(2) Where a conflict appears between any provision of an agreement and any
provision of any legislation, the provision of the legislation prevails.
Binding Effect of Agreement
51. An agreement is a binding upon the council, the employers and at the employee
organization that is a party to it and upon the employees in the bargaining unit
covered by the agreement.
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Recognition provision
$2. Every agreement shall be deemed to provide that the employee organization that
is a party thereto, is recognized as thc exclusive bargaining agent for the
bargaining unit to which the agreement applies.
Bargaining Units
67. The bargaining units set out in thc Schedules are the units for collective
bargaining purposes under this Act.
Whether person an employee
81. If, in the course of a bargaining for an agreement or during the period of operation
of an agreement, a question arises as to whether a person is an employee, including a
question as to whether a person employed as a chair, department had, director, foreman
or supervisor is employed in a managerial or confidential capacity within the meaning of
the definition in section 1 of "person employed in a managerial confidential capacity"
and the Schedules, the question may be referred to the Ontario Labour Relations Board
and its decision thereon is a final and binding for all purposes.
Decisions, etc. of Commission and others not subject to review
84 (1) No decision, order, determination, direction, declaration or ruling out the
Commission, a fact finder, an arbitrator or board of arbitration, a selector or the Ontario
Labour Relations Board, shall be questioned or reviewed in a court, and no order shall be
made or process entered, or proceedings taken in any court, whether by way of
injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto,
application for judicial review or otherwise, to question, review, prohibit or restrain the
Commission, fact finder, arbitrator or board of arbitration, selector or the Ontario Labour
Relations Board or the proceedings of any of them.
SCHEDULE 1 [definition of the academic staff bargaining unit]
The academic staff bargaining unit includes the employees of all boards of governors of
colleges of applied arts and technology who are employed as teachers, counsellors or
librarians but does not include,
(i) chairs,
(ii) department heads,
(iii) directors,
(iv) persons above the rank of chair, department head or director,
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(v) other persons employed in a managerial or confidential capacity,
(vO teachers who teach for six hours or less per week, [emphasis added]
(vii) counsellors and librarians employed on a part-time basis,
(viii) teachers, counsellors or librarians who are appointed for one or
more sessions and who are employed for not more than twelve months in any
twenty-four month period, '
(ix) a person who is a member of the architectural, dental, engineering,
legal or medical profession, entitled to practise in Ontario and employed
in a professional capacity, or
(x) a person engaged and employed outside Ontario.
EXCERPTS FROM THE COLLECTIVE AGREEMENT
Article 1 - 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
as more particularly set out in Article 14, Salaries, except 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.
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Article 2 - STAFFING
2.01 The Colleges 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 26, Partial-Load
Employees, subject to such operational requirements as the quality of the programs,
attainment of the'program objectives, 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 objectives, the need for special
qualifications, and enrolment patterns and expectations.
2.03 B The College will not 'abuse the usage of sessional appointments by combining
sessional with partial-load service and thereby maintaining an employment relationship
with the College in order to circumvent the completion of the minimum 12 months
sessional employment in a 24 month period.
2.03 C If the College continues a full-time position beyond one full academic year of
staffing the position with sessional appointments, the College shall designate the position
as a regular full-time bargaining unit position and shall fill the position with a member of
the bargaining unit as soon as a person capable of performing the work is available for
hiring on this basis.
Article 6 - MANAGEMENT FUNCTIONS
6.01 It is the exclusive function of the Colleges to:
(i) maintain order, discipline and efficiency;
(ii) hire, discharge, transfer, classify, assign, appoint, promote, demote, lay off, recall and
suspend or otherwise discipline employees subject to the right to lodge a grievance in the
manner and to the extent provided in this Agreement;
L · (iii) manage the College and, without restricting the generality of the foregoing, the right
to plan, direct and control operations, facilities, programs, courses, systems and
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procedures, direct its personnel, determine complement, organization, methods and the
number, location and classification of personnel required from time to time, the number
and location of campuses and facilities, services to be performed, the scheduling of
assignments and work, the extension, limitation, curtailment, or cessation of operations
and all other rights and responsibilities not specifically modified elsewhere in this
Agreement.
6.02 The Colleges agree that these functions will be exercised in a manner consistent
with the provisions of this Agreement.
Article 7 - UNION/COLLEGE COMMITTEE (LOCAL)
7.01 The Union Local may appoint a Committee at each College composed of up to three
members from among employees who have completed the probationary period. Where a
College has another Campus more than 32 lan away from the College's main
establishment, with at least 20 employees covered by this Agreement employed thereat,
the Union Local may appoint a Campus Committee of up to three members, two of whom
shall be from employees on that Campus who have completed the probationary period.
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:
(i) the local application of this Agreement;
(ii) clarification of procedures or conditions causing misunderstanding or grievances;
(iii) an internal complaint process to facilitate the resolution of employee complaints that
do not fall within the provisions of 11.01, 11.02, Article 32, Grievance Procedures, or
Article 33, Expedited Arbitration Process;
(iv) other matters which are mutually agreed upon;
(v) if requested by the Union' Local, the rationale for a sessional appointment by the
College shall be the subject of discussion; and
(vi) if requested by the Union Local, the College shall explain its rationale for its
application of Article 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.
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It is understood that the College will continue to make reasonable provision for the
environmental conditions of air, light, space and temperature of employees' work areas in
the College. A complaint of an employee concerning the environmental conditions
mentioned above shall be discussed at a meeting under this Article and not under the
provisions of Article 32, Grievance Procedures, or Article 33, Expedited Arbitration
Process.
Article 14 SALARIES
~ · 14.01 A Determination of starting salaries and progression within the salary schedules
shall be in accordance with the Job Classification Plans (see pages 107-115). The
application to certain present employees above the maximum step on the salary schedule
, ' shall continue as set out in 14.03.
14.01 B The College shall, upon the initial hiring of an employee in the bargaining unit,
· · forward a copy of the initial step placement calculation to the Union Local President.
14.02 A The salary schedules in 14.03 will apply to persons teaching more than 12 hours
on a regular basis. Persons teaching over six and up to and including 12 hours on a
regular basis will be covered by 26.04.
14.02 B It is recognized that a full-time teacher who may be assigned by the College to
an instructional assignment of less than 13 hours per week shall continue to be paid on
the basis of salary rather than on an hourly rate except as may occur through the
application of Article 27, Job Security, or as may be mutually agreed between the
employee and the College.
14.02 C 1 A full-time employee may request and, with the approval of the College, may
undertake a less than full-load assignment for a mutually agreed period.
14.03 [heading] Salary Schedules for full-time Professors, Counsellors and
Librarians
14.04 A Persons who teach over six and up to and including 12 hours per week on a
regular basis shall be referred to as "partial-load" employees. They shall not receive
salary or vacation but shall be paid for the performance of each teaching hour at an
hourly rate in accordance with the rates set out in Article 26, Partial- Load Employees.
Article 26 - PARTIAL LOAD EMPLOYEES
26.01 A This Article contains provisions exclusively related to partial-not load
employees. However, this Article is not conclusive off all rights of partial-not load
employees under the Collective Agreement.
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26.01 B A partial load employee is defined as a teacher who teaches more than six and
up to and including 12 hours per week on a regular basis.
26.02 A A partial-load employee shall not receive salary or vacations but shall be paid
for the performance of each teaching contract hour at an hourly rate calculated in
accordance with 26.04.
26.03 B The College shall upon the initial hiring of a partial load teacher in the
bargaining unit, forward a copy of the initial step placement calculation to the Union
Local President.
26.03 C Partial-load employees will be provided a copy of the Collective Agreement on
the first occasion they are employed following the negotiation of a new Collective
Agreement or if reemployment occurs more than one year after the end of the previous
partial-load contract.
Article 27 - JOB SECURITY
27.01 - 27.11
Probationary Period
Seniority
27.03 A - 27.03D [calculation, accumulation and loss of seniority]
27.03 E1 A person who has been in a position that is now covered by the Agreement and
has been or is assigned up to and including August 31, 1978, a position with the College
outside the Agreement will be credited with and continue to accumulate seniority for the
purpose of this Agreement while in the employ of the College.
27.03 E2 Employment with the College in a position ordinarily outside the bargaining
unit in the course of which teaching, counselling or library assignments have been
undertaken in the College (other than on an unusual or isolated basis) shall account in
computing seniority of persons hired by the College in positions outside the Agreement.
Such seniority shall be credited in the proportion of that the teaching counselling or
elaborate assignment is off a full-time assignment based on one quarter, one half, or three
quarters of the month of seniority for each full month's employment.
27.03 E3 A person who is covered by the Agreement and is assigned a position with the
College outside the agreement after August 31, 1978, will be credited with and maintain
seniority as at the date of assignment for six years thereafter while in the employee of the
College.
27.03 E4 Seniority credited pursuant to this Article can only be exercised once the
person concerned has entered or re-entered the bargaining unit as the case may be.
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27.05 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 objectives, 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.
Layoff Grievances
Post Layoff Considerations
Recall
Severance
Postings
27.11 A Notice will be posted in the College of all vacancies of full time positions in the
bargaining unit. Such notice will be posted for at least five working days.
27.12 - Personnel Lists
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.
27.13-27.14 - Resignation & Discharge
27.15 & 27.16 General
27.15 [deals with reimbursement for various expenses]
27.16 Extension and Continuing Education programs and courses which are not
included in the regular assignment of full-time employees are excluded from the
al~Mication of this Article for all purposes. [emphasis added]
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