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HomeMy WebLinkAboutTeskey 89-11-24 . J' 56 It 711 /" L- L/!~ IN 1HE MATfER OF AN ARBITRATION (A) BETWEEN: ALGONQUIN COLLEGE (the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") RE GRIEVANCE 88A791 - DEBBIE TESKEY BOARD OF ARBITRATION: Pamela C. Picher - Cha~erson Bob Gallivan - College ominee Joe Herbert - Union Nominee APPEARING FOR THE COLLEGE: Stephen J. Shamie - Counsel APPEARING FOR THE UNION: Ross Wells - Counsel Hearings in this matter were held in Ottawa on March 8 & September 28, 1989. . . - 2 - AWARD The Union maintains that the College breached the collective agreement through the teaching load it assigned to Ms. Debbie Teskey as a sessional teacher in the fall of 1987. Sessional teachers are not included in the bargaining unit. The Union maintains that the College assigned Ms. Teskey an unreasonable teaching load in contravention of article 4.05 of the agreement which provides as follows: 4.05 The parties agree that no College shall circumvent the provision of this Article by arranging for unreasonable teaching loads on the part of persons who are excluded from or not Included in the academic bargaining unit. A. FACTS: The Union called no evidence. The evidence presented by the College is not in particular dispute and may be summarized as follows: 1. For approximately 11 weeks, from September to December of 1987, Ms. Teskey was assigned a teaching load of 28 teaching contact hours. This was comprised of 4 teaching assignments, each 7 hours per week. Under the terms of the collective agreement applicable to full-time teachers in the bargaining unit which attribute additional workload hours for preparation, evaluation and feedback as well as administrative and complementary functions, Ms. Teskey's 28 contact hours would yield a total weekly workload of 63.5 hours. The College does not dispute that these total workload hours are an approximately accurate reflection of the hours Ms. Teskey probably worked during the 11 week period under review. . - 3 - 2. Through article 4, the collective agreement establishes maximum contact hours and total maximum workload hours that may be assigned to full-time teachers in the bargaining unit. The maximum weekly contact hours assignable to full-time teachers in nursing is 18 (article 4.01 (9». The maximum total weekly workload hours for teachers in nursing is 44 hours (article 4.01 (2)(a». The maximum permissible overtime for such full-time teachers in the bargaining unit is an additional 1 contact hour in any week and 3 additional total workload hours. (article 4.01 (10)(a». 3. For her work assignment, Ms. Teskey was paid approximately $615.00 a week for the 11 week period. It is common ground that for an attributed total workload of 63.5 hours per week, the hourly wage would be approximately $9.00. 4. The circumstances surrounding the appointment of Ms. Teskey were testified to by Ms. Margaret McGee, the Acting Dean of the School of Health Sciences since August 19, 1987, and Ms. Jane Wolfe, the Acting Chair of the Nursing Department since August 17, 1987. The Nursing program utilized approximately 50 full-time teachers in the 1987-1988 academic year and between 5 and 35 non full-time teachers (including part-time, partial load and sessional teachers), depending on the term. Mer assigning full teaching loads to the 50 full-time teachers, Ms. McGee, for the 1987 fall semester, had approximately 36 further teaching assignments which had to be filled. Due to the circumstances of the schedule, particularly as it related to the provision of the clinical practice for the students, these 36 teaching spots had to be assigned to non full-time staff. Four of these 36 assignments were ultimately given to Ms. Teskey. - 4 - 5. During the summer of 1987, Ms. Teskey called the Nursing Department to ask if there were any available full-time teaching positions. She was advised by Ms. Wolfe that although there were no vacant full-time positions, there were some available non full-time positions such as sessional and part-time appointments. Ms. Teskey stated that she was in need of money and wanted to work as many hours as possible. In August she was initially given two teaching assignments of 7 hours each, for a total of 14 contact hours. 6. The Nursing Department faced a staffing problem in the summer of 1987. The Union does not argue that the College should have or could have created an additional full-time position to fill any or all of the 36 teaching assignments it was trying to fill with non full-time teachers in the fall term. The College had considerable difficulty filling the last 13 spots which still remained open when Ms. Wolfe took over from Mrs. McGee in mid August 1987. Ms. McGee commented that because she had hired 10 additional full-time teachers for the 1986-1987 academic year and 4 for 1987-1988, she had depleted somewhat her roster of non full-time teachers. Once she exhausted her remaining roster of available and appropriate non full-time teachers in August of 1987, she turned to applications for employment that were on file. She then went to the files in the Human Resources Department and outside employment agencies. Ms. Wolfe testified without contradiction that through these and further means she was just able to fill the 36 outstanding teaching spots before the start of classes in the fall term. 7. Ms. McGee initially offered Ms. Teskey 14 weekly contact hours which would cover 2 of the 36 teaching assignments. It is common to the testimony of both Ms. - 5 - McGee and Ms. Wolfe that they would have preferred to leave her teaching assignment at that level and fill the remaining spots with other non full-time teachers. However, as the commencement of the fall term drew closer and closer and as the College continued to be unable to find enough qualified persons available to fill all of the spots, Ms. McGee finally assigned 14 additional contact hours to Ms. Teskey, for a total of 28. 8. Ms. Teskey willingly took on the additional assignment. No complaints were received about the quality of her teaching and there is no suggestion that Ms. Teskey had any difficulty satisfactorily completing her assigned work. 9. The Union does not dispute Ms. Wolfe's testimony that if Ms. Teskey had not been assigned the additional 14 contact hours, the College would have been required to cancel the clinical experience involved. She stated that that was not a feasible option because the Ministry standards require students to have a certain number of hours of clinical practice. Ms. Wolfe testified that the College was very close to these minimums and that, in all likelihood, the minimums would not have been attained if the affected clinical experience had been cancelled due to the lack of an available instructor. 10. Ms. Wolfe testified that the fall of 1987 is the only occasion when she has been required to assign one sessional teacher as many contact hours as Ms. Teskey had. Since the fall of 1987 she has been able to find enough people who are qualified and willing to assume the non full-time teaching assignments. - 6 - 11. The Union does not dispute that despite concerted effort the College had difficulty finding qualified teachers to fill the 36 non full-time teaching spots required for the fall of 1987. It does argue, however, that if the College had offered more money, in all likelihood, it would have been able to attract more teachers. B. SUBMISSIONS: 1. Submission By The Union: The Union does not argue in this case that for teaching assignments for sessional teachers the College is strictly bound by the workload maxima established in the collective agreement for full-time teachers in the bargaining unit. Moreover, the Union accepts for the purposes of this case that the focus of attention for the purposes of the application of article 4.05 should be the teaching contact hours as opposed to the total workload hours. The Union maintains that five factors indicate that a teaching load of 18 or perhaps 19 contact hours (considering allowable overtime) is a reasonable teaching load and that a teaching load in excess of that, to any appreciable degree, would be unreasonable: 1. The establishment of the weekly maximum limit of 18 contact hours for full-time teachers in the bargaining unit; 2. The fact that the additional hours which the collective agreement attributes to a teacher's weekly hours of work for such matters as - 7 - preparation, evaluation and feedback and complementary or administrative functions establish approximately a full week's work; 3. The prohibition against an overtime assignment of more than 1 contact hour per week or 3 total workload hours a week; 4. The strict prohibition against probationary teachers being assigned either contact hours or total workload hours in excess of the maxima; and 5. The evidence of Ms. McGee and Ms. Wolfe that Ms. Teskey was originally assigned 14 weekly contact hours and that they would have preferred to maintain that assignment. Counsel for the Union emphasizes that the 28 weekly contact hours assigned to Ms. Teskey in the fall of 1987 was a teaching load which exceeded the standard for full-time teachers by approximately 50 per cent. The Union submits that wherever the line may be between a reasonable and unreasonable teaching load for teachers who are not in the bargaining unit, a load which is 50 per cent more than the full-time allowable load clearly falls over the line and into unreasonableness. Counsel for the Union argues that Ms. Teskey's willingness to work the 28 weekly contact hours is irrelevant to the assessment of reasonableness for the purposes of article 4.05 of the agreement. Moreover, counsel emphasizes that the evidence reveals that her desire was to earn the additional money that would result from the 28 contact hours and not to actually teach the added hours. In support of the irrelevance of the willingness of a sessional teacher to teach contact hours in excess of the maxima - 8 - established for full-time teachers, counsel points to the following passage in Re Cambrian College and O.P.S.E.U. Local 655 (Mr. Gibson), decision of Jane Devlin, dated November 16, 1987 at p. 15: We also agree with Ms. Farson that whether or not Mr. Gibson was content with the workload is largely irrelevant. Article 4.05 was designed to preclude the College from assigning excessive or unreasonable teaching loads to non- bargaining unit employees with potentially negative impact on members of the bargaining unit. As a consequence, the reasonableness of the teaching load can not, in our view, be judged by whether the sessional employee is satisfied with the hours assigned. The Union does not challenge efforts made by the College to find additional non full-time teachers. Counsel maintains, however, that a good faith effort on the part of the College to avoid an excessive load for a sessional teacher is irrelevant. Counsel argues that once it is established that the teaching load is unreasonable, the assignment is prohibited under article 4.05 of the agreement, whether or not the College tried its best to avoid the breach. In the alternative, counsel for the Union submits that if the efforts of the College are relevant then the Board should conclude that the College did not make sufficient efforts because the per hour salary of approximately $9.00 fell well below a competitive wage for the marketplace. Counsel argues that to set up as a defence to an unreasonable teaching load the difficulty the College faced obtaining qualified teachers, the onus rests with the College to show that it offered a competitive salary. Counsel acknowledges that it called no evidence as to what nurses were being paid in the marketplace at the relevant time. It maintains, though, that the Board can take notice that $9.00 a hour was not attractive. - 9 - 2. Submissions By The College: Counsel for the Colleges argues that the limits set by the collective agreement for the maximum permissible weekly contact hours and total workload hours for full- time teachers in the bargaining unit are not determinative of the reasonableness of the teaching load assigned to sessional teachers for the purposes of article 4.05 of the collective agreement. Counsel maintains that if the parties had intended fixed numerical hourly limits for the teaching loads for sessional teachers they would have so stated instead of utilizing the more flexible standard of reasonableness. Counsel for the College submits that reasonableness is a concept that requires an examination of the surrounding circumstances. He further maintains that the onus rests with the Union to establish the unreasonableness of the teaching load rather than vice-versa and that this grievance should be dismissed on that basis alone. He argues as well that a necessary ingredient to a breach of article 4.05 is the establishment by the Union that the integrity of the bargaining unit is adversely affected by the assigned teaching load. In support of these submissions, counsel relies on the decisions in Re Cambrian College and O.P.S.E.U. (union &rievance #87X97), decision of E.E. Palmer dated July 5, 1988); Fanshawe College and O.P.S.E.U. (union &rievance #83247. Mr. W. Vanderlip), decision of Gail Brent dated February 1, 1984 and Fanshawe College and O.P.S.E.U. (union grievance 83249. Ms. LUmoessien), decision of H.D. Brown, supr~ dated July 12, 1984. Counsel for the Colleges further relies on the following statement at pp.14-15 of Re Fanshawe College (Ms. Umoessien), decision of H.D. Brown, to argue the relevance - 10 - for the assessment of reasonableness of Ms. Teskey's willingness to teach 28 contact hours: The Union points to the number of extra hours on the form as assigned to Ms. Umoessien and submits that is an unreasonable teaching load. There is no evidence to support that bare presumption. In some courses that amount of extra time in such a period might be considered excessive in that it would be too onerous a duty for the teacher and in others it would not be so. The best judge of that is the teacher of the course and if she agrees to the extra work, the reverse of the Union's argument can be used, that it is not excessive on its face because of that individual agreement. There is not then sufficient facts. (It is apparent that the weight accorded a teacher's willingness to work the hours in dispute reflected in this Re Fanshawe College decision differs from the view set out in Re Cambrian College, supr~ and relied on by the Union). Counsel for the College maintains that the rate of pay offered Ms. Teskey is wholly irrelevant to the issue of whether the College circumvented the workload provisions of the agreement by assigning an unreasonable teaching load. Counsel submits that in any event the fact that the College', has not encountered difficulty attracting a sufficient number of non full-time teachers at any time other than the fall of 1987 belies the significance of the rate of pay. There has been no substantial change in the level of remuneration. Counsel for the College submits that the full circumstances surrounding the assignment of 28 weekly contact hours to Ms. Teskey establish that the College did not "circumvent the [workload] provisions of [the collective agreement] by arranging for - 11 - unreasonable teaching loads on the part of persons who are ... not included in the academic bargaining unit". The specific circumstances relied on by the College are: 1. The uncontested fact that the teachi~ spots filled by Ms. Teskey could not be filled by a ll-time teacher and thus did not threaten the integrity of the bargaining uni t, 2. The concerted effort made by the College to find qualified teachers to fill the spots so that it would not have to assign Ms. Teskey more than her originally scheduled 14 hours. 3. Ms. Teskey's willingness to work the 28 contact hours and the lack of any complaints about the assignment. 4. The adverse result of not assigning the additional hours which would have been the cancellation of the clinical experience for the students involved and the probability that that would have taken them below the minimum standards set by the Ministry for the required numbers of clinical hours for nursing students. 5. The isolated nature of the augmented assignment as evidenced by the fact that it lasted for less than one full term and has not happened since. Counsel argues that in all of these circumstances and, particularly the desperate circumstances facing the College, the teaching load assigned to Ms. Teskey was not unreasonable. C. DECISION: The issue of whether the College has circumvented the workload provisions of the collective agreement as set out in article 4 by arranging for unreasonable teaching loads on the part of persons who are not included in the bargaining unit is determinable by an assessment of aU of the circumstances surrounding the assignment of the teaching load under review. It is clear from the use of the phrase "unreasonable" - 12 - that the parties have not confined the College to the strict workload maxima applicable to full-time teachers in the bargaining unit. The concept of unreasonableness is one that carries flexibility and draws its definition in a specific situation from the surrounding circumstances. It may be that the assignment of a load of 28 contact hours would be an unreasonable teaching load in one set of surrounding circumstances but not in another. Having carefully reviewed all of the circumstances of the teaching load assigned to Ms. Teskey, the Board cannot conclude that the College circumvented the provisions of Article 4 by arranging for an unreasonable teaching load on the part of Ms. Teskey. The Union does not suggest that the teaching load assigned to Ms. Teskey could have been given to a full-time teacher. Nor does it suggest any means by which the integrity of the bargaining unit was put into jeopardy by the teaching load assigned to Ms. Teskey. In addition, there is no evidence to suggest that Ms. Teskey had any difficulty successfully performing her assigned load. The evidence establishes that the College made concerted efforts to find sufficient non full-time teachers to avoid assigning 28 teaching hours to Ms. Teskey. The evidence does not suggest there was anything it could have done that it didn't do. The option put forward by the Union for the College to resolve its problem was for the College to raise the rate of pay it was offering sessional teachers to better attract more non full-time teachers. The Board does not accept that the College's remuneration of sessional teachers was in any way responsible for its problem finding non full-time teachers to fill its 36 spots. There was no evidence to establish the going rate of pay - 13 - in the marketplace for persons who might qualify as sessional teachers in nursing. Moreover, the fact that the College has not been faced with difficulty attracting sessional teachers during any period other than the fall of 1987 strongly suggests that the pay package offered by the College was not a deterrent or the cause of the College's teacher shortage in the fall of 1987. The maximum contact hours including overtime that may be assigned to a full- time teacher in the bargaining unit is 19. Ms. Teskey was assigned 28 contact hours. The College readily acknowledged that it would have preferred to maintain Ms. Teskey's original assignment of 14 contact hours. However, the evidence is equally clear that the College was faced with a crisis as it approached the start of classes in September of 1987 because it was unable to find a qualified teacher to assume the additional 14 contact hours it assigned to Ms. Teskey. It is undisputed that but for assigning the additional hours to Ms. Teskey, the only option left to the College would have been to cancel the clinical courses. Moreover, the Union did not challenge the College's evidence that to cancel the clinical experience for the students involved might well have jeopardized their individual nursing programs because it might well have brought the students below the minimum hours of clinical experience required by the Ministry. It is not an exaggeration of the circumstances to characterize the situation facing the College as an emergency, and we so find. The emergency nature of the situation is further demonstrated by the fact that the teacher shortage occurred for only one semester and has not happened since. While in some circumstances the assignment of 28 contact hours may result in an unreasonable teaching load, the Board is fully satisfied, on the basis of the totality . - , - 14 - of the factors outlined above, with particular regard to the emergency faced by the College, that in this situation it did not result in an unreasonable teaching load. On the basis of the foregoing, then, we concluded that the College did not "circumvent the provisions of ... Article [4] by arranging for [an] unreasonable teaching [load] on the part of ... [Ms. Teskey, a person] not included in the bargaining unit" within the meaning of article 4.05 of the collective agreement. Accordingly, for the reasons set out above the grievance is hereby dismissed. DATED at Toronto this 24th day of Nove Pamela C. Picher - Chair I DISSENT (ATTACHED) "J oe Herbert" -------------------------------------------- Union Nominee I CONCUR "Bob Gallivan" -------------------------------------------- College Nominee DI . I agree with the chairperson's depiction of the facts in this case. I would go fUrther and indicate that if the test to be applied is the reasonableness of the employer's conduct, I could agree with her conclusions. .. In my view, however, the test compelled by the collective agreement is a different one and requires a different result. Article 4.05 is structured in a manner which necessitates a determination of whether the teaching load itself . ~ - 15 - is reasonable, rather than an assessment of the employer's conduct. '. The term "unreasonable" is used as an adjective to modify "teaching load" and the characteristics of the teaching load (eg. the quantum) must be examined and the conclusion drawn - on that basis. Put differently, if the union were able to show that the employer's conduct was unreasonable, is it then unnecessary to demonstrate an unreasonable teaching load? For these reasons, I would have found that Ms. Teskey's teaching load was unreasonable in that it exceeded by 50% the full time limitations. Wherever the line is to be drawn, Ms. Teskey's load surpassed it. I would have granted declaratory relief. DATED at Toronto thisi24th day of November, 1989. "Joe Herbert" I