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HomeMy WebLinkAboutDwyer 92-07-02IN THE MATTER OF AN ARBITRATION ONTARIO COUNCIL OF REGENTS FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF CAMBRIAN COLLEGE (hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR. ACADEMIC EMPLOYEES) (hereinafter called the "Union") GRIEVANCE OF VICTOR DWYER~ OPSEU FILE NO. 92B001 (hereinafter called the "Griever") BOARD OF ARBITRATION: Richard H. McLaren D. Cameletti, College Nominee Wally Majesky, Union Nominee COUNSEL FOR THE COLLEGE: Robert J. Atkinson COUNSEL FOR THE UNION: Michael McFadden A HEARING IN RELATION TO THIS MATTER WAS HELD AT SUDBURY, ONTARIO ON JUNE 4, 1992 AWARD Counsel agreed to the following f.~ets. Mr. Victor Dwyer teaches welding in a continuous intake programme and has been employed by the College since 1972. He began teaching for the academic year 1990/91 on September 17, 1990. A Standard Workload Form (hereinafter referred to as "SWF") indicated that one period of h/s teaching would be from that date until December 21, 1990, with the next period commencing on January 3, 1991 and ending on June 14, 1991. (Exhibit 3). He requested vacation time for moose hunting and was granted a weelcs vacation from October 15th through to the 19th and again from November 19th to the 23rd. This time off for vacation was agreed upon by hin~self and Mr. Favot, his supervisor." A revised SWF was issued for the period following the first week of vacation commencing October 22nd.until ~the'commencement of the second week of vacation on November 16. :(Ekhibit:~4'A)i :~'~.i'/¥' further r~viSed"'SWF'.waa'Lssued;covering, the period from his return from the s~:cond week of vacation on November 26th through to the date of December 21st, wbich was the date of the original SWF (Exhibit 4B). The period which the SWF then covered was extended for two further weel~ from the termination date of June 14th to a termination date of June 28th. -2- During the period covered by the revised SWF from January 3, 1991 to June 28, 1991, the grievor was absent due to illness for a week commencing on Monday, March 25, 1991. The programme is one of continuous intake. There is a practice at the College which involves the individual making arrangements for their replacement if possible; and otherwise, the supervisor will do so. It is agreed that the teaching for the programme was undertaken during the week of the grievor's absence. In May of 1991, the grievor was advised by the College that the week of absence in March would result in a further teaching week being added to his workload for the week commencing July 1, 1991. The parties believe that revised SWFs were issued, but none were filed with the Board. The grievor went on vacation as of July 8, 1991, following the completion of his teaching week on July 5. He then had seven weeks vacation until August 23, 1991, which together with the two weeks vacation taken the previous Autumn, totalled nine weeks of vacation. Upon his return to work following vacation he had two weeks of professional development which ended on September 6, 1991, and had two weeks of curriculum development which ended on September 20, 1991, after which the new academic year commenced. The parties--~agree..that the ~ grievor di~ not work more than 43 .weeks and received nine weeks of ".. vacati0n;:,':~,The .~parties'~ also ::.agree,. that .' the, grievor l did.not'...teach more. than thirty-eight weeks within the remaining 43 weeks. The parties further agreed that while this matter might have been -3- one which could have been referred to the Workload Resolution Arbitrator, that it was appropriate for the matter to be before this Board of Arbitration for determination. There was, therefore, by agreement of Counsel, no prel.~minary objections to jurisdiction or the arbitrability of the matter. It was submitted on behalf of Counsel for the grievor and the Union that while the College has some authority to amend the teaching assignments, it has exceeded that authority in rescheduling the week of sickness at the end of the original thirty-eight week period of teaching. It is the submission of the Union that a week which has past, and after which management decides retroactively to reassign that week by tacking it on to the conclusion of the teaching period, is a violation of the collective agreement because Article 4.02 (1) (a) (i) requires prior consultation; and 4.02 (1) (e) requires that a timetable be given out. When those two provisions are read together a right exists in the grievor that does not allow the College to amend the schedule with respect to the remaining weeks involving a week which has passed. Counsel for the College submits that the Collective agreement permits the College to assign up to thirty-eight weeks of teaching to the grievor. There ar'e no ' ', restrictions ..in ,.the collective, agreement~ regarding the way in which the particular week in 'MarCh,:was~.reassigned. ' :In'.'the'..absence, of:-any:, restrictions ..in the.: collective, agreem{.~nt,, it is within the right of management to do what it has done. It was submitted that there has been no breach of the collective agreement. Counsel for the parties referred to the following provisions of the collective agreement: ARTICLE ~ - V~ORKLOAD 4.01 (2)(a) Total workload assigned and attributed by the College to a teacher shall not exceed forty-four (44) hours in any week for up to thirty-six (36) weeks in which there are teaching contact hours for teachers in post-secondary programs and for up to thirty-eight (38) weeks in which there are teaching contact hours in the case of teachers not in post-secondary programs. The balance o! the academic year shall be reserved for com- plementary functions and professional development. Workload lactors to be considered are: (i) teaching contact hours (ii) attributed hours for preparation (iii) attributed hours for evalualion and feedback. (iv) attributed hours for complementary functions 4.02 (1) (a) (i) Prior to the establishment of a total workload/or any teacher the supervisor shall discuss the proposed workload with the teacher and complete the Standard Workload Form (SWF), attached as Appendix Wit, to be provided by the College. The supervisor shall give a copy to the teacher not later than six (6) weeks prior to the beginning ol the period covered by the timetable excluding holidays and vacations. It is recognized that it the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher. 4.02 (1) (a) (ii) The College may, where a change in circumstances requires it, amend assignments provided to a teacher after the original assignment, subject to the teacher's right lo refer any matfer to the College Workload Monitoring Group (Group) referred to in Article 4.02(2) (a) and if necessary, the Workload Resolution Arbitrator (WRA) relerred to in Article 4.02{5) {a) and appointed under Article 4.02(6) (a). 4.02 (1 (e) The timetable shall set out the schedule and location of assigned workload hours reported on the SWF. on a Timetable Form to be provided by the College, and a copy shall be given to the teacher no less than two (2) weeks prior to the beginning of the period covered by the timetable, which shall be the same period as that covered by the SWF. -5- 4.03 The academic year shall be ten (10) months in duration and shall, to the extent il be feasible in the several colleges to do so, be from September 1 to the following June 30. The academic year shall in any event permit year-round operation and where a College deter- mines the needs ol any program olherwise, then the scheduling ol a teacher in one or both of the months of July and August shall be on a consent or rotational basis. ARTICLE 5 - VACATIONS 5.01 (1) A lull-time employee who has compleled one lull academic year's service with Ihe College shall be entitled Io a vacation of two (2) months as scheduled by the College, The gricvor was entitled under Article 5.01 and other provisions of the collective agreement to nine weeks of vacation. The grievor received that vacation. Under 4.01 (2)(a) the grievor was not teaching on a post-secondary programme and could be required to have a workload assignment of "up to thirty-eight weelcs in which there are teaching contact hours". The grievor had precisely those number of weeks of teaching at the conclusion of the teaching week ending on July 5, 1991. The grievor received ten working days of professional development as required by Article 4.01 (8)(a) between September 9 and Septe~ef~:2o,,::;1991-.' - The ,.grieVOr.,was,,assigned· a' workload of,',up to ithirtY-eight"weeks. Therefore; there :is ~o breach of Article 4.01 (2)(a).' 'The'week in March was not one in Wt~ich there were teaching contact hours because of his illness. Article 4.02 (1)(a)(ii) permits "where a change in circumstances requires it" an amendment of assignment.. In so doing, the Article does permit the teacher the right, to refer the matter to an internal procedure which ultimately might end up in a proceeding before a Workload Resolution Arbitrator. In this -6- instance, the parties have agreed that this grievance can be, and ought to be dealt with in a final and binding settlement by way of this Board of Arbitration. The right to amend the teaching assignments is not restricted by Article 4.02 (1)(a)(ii). Article 4.02 (1)(a)(i) requires that there be a discussion between the supervisor and the employee with respect to the proposed workload prior to the completion of the SWF. There is no allegation that there was a violation of this Article in the provision of the original SWFs fried as Exhibit 3. The Article goes on to state in its conclusion that: "It is recognized that if the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher". The thrust of the Union submission is that there was prior consultation with respect to the two weeks of vacation in October and November of 1990, but there was not with respect to the week of illness in March of 1991. Therefore, the Union does not take issue with the two weeks of vacation being added on to the original concluding point of the teaching period in mid June of 1991. The Union submits that the retroactive re-allocation of the week of illness in March of 1991, is a violation of the collective agreement and seeks a declaration to that effect. Article 4.02 (1)(e) requires that a . 1 :Timet~tble,Form be given~to the~teacher..prior~.to the beginning of..the period covered by the timel/able, .:~ch shall.be' the~ Same period cOvered ~by. the:'.SWF. :.:It is argued that .the requirement of the timetable, which is to coincide with the period covered by the SWF0 in combination with the requirement that subsequent revisions must be done with prior consultation, circumscribed the power of the College to amend assignments as set out in Article 4.02 (1)(a)(ti). It is argued that this circurm~cription exists because the -7- re-allocation or reassignment of the week in March did not occur until after the week had passed, as opposed to a planned week or non-work week in the ease of the vacations. As a result, there was an inability to exercise the amending power of Article 4.02 (1)(a)(ii). The thrust of the submission is that once the period scheduled to have been treated as a teaching contact week had passed, then it cannot be reconsidered retroactively reassigned by the College. The fact of the matter is that the week in March of 1991 did not involve any "teaching contact hours" as referred to in Article 4.01 (2)(a). Therefore, the College is not required to count that week under that Article as being one of the thirty-eight weeks which may be assigned as part of the teaching workload. It was scheduled to be a teaching contract week. Illness prevented it from being such. The subsequent adjustment of the teaching contract weeks after the event is not restricted by Article 4.01 (2)(a) nor 4.02 (1)(a)(H). The addition of the obligation to provide timetables in 4.02 (1)(e) does not alter this conclusion. Therefore, this Board of Arbitration must conclude that it can find no provision of the collective agreement which has been violated. There is, therefore, no restriction on the College in acting in thc way in which it did. It is found that the actions of the College are in conformity with the collective agreement. ' For' all'of'the' foregOing reasons the~Board must~order that this grievance be dismissed. -8- DATED AT LONDON, ONTARIO THIS 2nd DAY OF JULY, ].992. Richard H. McLaren Chairman D. Cameletti, College Nominee 2751W