HomeMy WebLinkAboutUnion 88-07-05 IN THE MATTER OF AN ARBITRATION
'BETWEEN
CAMBRIAN COLLEGE
(hereinafter called the "College")
- and -
THE ONTARIO PUBLIC SERVICE
EMPLOYEES' UNION (FOR ACADEMIC
EMPLOYEES)
(hereinafter called the "Union")
Union Grievance #87X97
BOARD OF ARBITRATION: E.E. Palmer, Q.C.
Chairman
W. Majesky
A. S. Merritt
,APPEARANCES FOR THE COLLEGE- B. Brown & Others
APPEARANCES FOR THE UNION' E.J. Shilton Lennon & Others
~:' AWARD 2.
The present arbitration arises out of a Union grievance
filed on 8 October 1987 [see Exhibit 2]. This document states that
its nature is:
Messrs. Boyd, Bailey, Chellew, Daoust, Desbiens,
Gauvreau, Guescini, Muraska, R. Smith, hired as
sessional teachers in the Business Department,
have unreasonable teaching loads which is in viola-
tion of the collective agreement.
As settlement, the Union requested that there be:
Compliance with collective ag'reement. Compensation
0.1% of the salary they would receive if on the
salary schedule for Teaching Masters, according to
the Classification Plans for each work load hour
above 44 hours per week.
This matter was not resolved during the grievance procedure
and so forms the basis of the present arbitration, a hearing in rela-
tion to which took place in Sudbury, Ontario, on 17 May 1988. At
that time the parties agreed that the present Board was properly
composed and had jurisdiction to deal with this matter. The parties
were given an opportunity to present evidence and argument.
With respect to the instant grievance, the facts were no%
in dispute. Without going into the matter .in great detail, it would
appear that pursuant to the collective agreement in effect between
the parties, a particular formula is followed to establish the
Standard Workload for persons teaching at the College. These Forms,
referred to as SWFs~are filled out prior to actual registration in
the class by students. These estimated SWFs are ones which initially
assign the number of contact hours in each course a person will teach
and then multiply these by a factor relating to certain variables.
This, together with a further factor relating to the estimated size
of the class~produces a particular result. In relation to Teaching
Masters within the bargaining unit these results should not exceed
44 hours except in certain exceptiona! circumstances. These forms,
it might be pointed out, are a!so made up for persons, such as
·
Sessional Teachers, who are not !n the Bargaining Unit. It. is also
the case that, aside from the foregoing factors relating to teaching
spec!fic c!asses, a minimum of 5 hours is credited to each of these
in relation to what are termed "Complementary Hours" Some months
later, during the actua! semester for which these estimated SWFs
are prepared, after actua! final enrol!ment is known, another SWF
is prepared. This is what was referred to in the hearing as an
Audited SWF.
The prob!ems in the present case arise out of the use of
sessiona! teachers in the Business Department. In this department
there are a disproportionately !arge number of sessional teachers
used. Spec!ficaIly, of the total comp!ement of teachers in that
department, !2 hold sessiona! appointments. For comparative pur-
poses, in the total college there are only 59 sessional appointments
of a tota! of 383 teaching appointments.
The specific loads in this case which are the subject of
the grievance are as foI!ows. Of the nine persons mentioned in the
grievance ail were given an Estimated SWF above 44 hours a week.
For a!! except Muraska, this var!ance was between 44.10 hours per
week and 48.90 hours per week. In the case of Muraska, during the
first part of the semester in question - that of Autumn !987 - his
!oad was 50.19 hours per week; in the latter'part of that term it
dropped to 34.56 hours per week.
As was agreed between the parties, .after making~'~!~.~,~
s~uch estimates c!ass enrollment in fact drops when it comes to
the time'~for the Audited SWF. Again, certain other variables could
occur. In the present case of the foregoing persons listed, Boyd
dropped below 44 hours per week as did Daoust. Desbiens., in fact,
did not teach during that term. Of the remaining named employees
their audited hours for al! except Muraska varied between 44.41
hours per week to 48.78 hours per week. In the case of Muraska,
his audited hours show that in the first part of the term his hours
per week taught were 49.35 and in the second half of the semester
32.88. Additionally, two new sessional employees in the department
found themselves with audited hours that were above the 1eve! of
44 hours per week. Thus an E. Moratz, a replacement For Desbien$,
had audited hours of 44.9 hours per week and an A. Pecca, whose
est!mated SWF was be!ow 44 hours per week, found that the audited
hours were 46.02 hours per week.
It is, therefore, on the basis of the foregoing facts
that the Union claims the Co!!ege is in breach of Article 4.05 of
the co!!ective agreement, which reads [see Exhibit I]:
4.05 The parties agree that no College sha!! circumvent the
provision of this Article by arranging for unreason-
able teaching !oads on the part of persons who are
exc!uded from or not included in the academic bargain-
ing unit.
Quite clearly, then, the issue in this case is whether
the College was in breach of the foregoing provision by assigning
"unreasonable teaching loads" to the foregoing teachers who are
admittedly outside the bargaining unit.
The Union started its argument in this case by noting that
it has an interest in limiting the work load of teachers at the
Co!lege who are outside the bargaining unit. Essentially this
interest is to protect the integrity of the bargaining unit by
precluding the College from using over-loaded excluded 'teachers
rather than Union members.
On the question of unreasonability of teaching' loads, ,
the Union notes that the normal maximum load for teachers included
in the bargaining unit is forty-four hours per week' see Article
4.01(lO)(b). Hours taught in excess of that are compensated at the
rate of 0.1% of the relevant teacher's annual salary. Consequently,
the Union seeks a similar approach to determination of the reasona-
bility of the excluded teachers' workloads. They emphasize that
this is particularly so where, the assignment of work to excluded
teachers is done on the scale that here occurred. In their opinion,
this workload could have easily been packaged as additional full-
time positions within the bargaining unit, especially as here the
courses involved were part of the normal post-secondary load of
the Business Department as opposed to some special short-term course
or where the part-time teacher was brought in to meet some emergency.
On the facts of this case, the Union notes that the
average workload in this department is some forty-one or forty-two
hours per week for full-time teachers; the sessiona! teachers
average f!ve or six hours per week more. This differential, it is
argued, !s unreasonable. Here the Union refers to Appendix III of
the collective agreement to note the similarity of the functions
of Sessional Teachers and full-time teachers within the bargaining
unit. In short, whether a teacher is'.within or without the bar-
gaining unit does not affect that teacher's requirements of adequate
time to carry out his or her pedagogical duties.
The Union also referred the Board to a number of cases
touching on their argument: Re Fanshawe College, unreported
(Brent, ! February !984); Re Fanshawe College, unreported (H.D.
Brown, 12 Ju!¥ !984); Re Cambrian Col!ege, unreported (Dev!in,
16 November !987); Re Phi!!ips Cab!es, !6 L.A.C. (2d) 225 (Swan,
1977); and Isabelle v. Ontario Public Service Employees Union,
Supreme Court of Canada, 11 May 1981.
According!y, the Union requested this grievance succeed.
The position of the Co!lege started by emphasizing that
this case is not about the hiring of excessive numbers of Sessional
Teachers; this is a case about the teaching loads assigned them.
Turning, then, to Article 4.05 it was stated that the onus is upon
the Union to prove: first, that the College has circumvented the
provisions of Artic!e 4; and, second, that this circumvention has
been caused by "arranging for unreasonable teaching loads" for
the persons in question. Dea!ing with the !atter of these points,
the Co!!ege notes that Article 4 deals with "Work!oads", of which
"teaching !oads" are merely one component. This, it is argued,
becomes evident from a reading of this Article. Consequent!y, in
a sense, the SWFs are irrelevant to this case as these dea! with
matters beyond teaching. It is urged, however, that even if one
l'ooks to the teaching loads shown on the SWFs these disclose that
all the named persons above have teaching hours between sixteen
and eighteen. Therefore, as the !atter figure is also the maximum
for teachers within the bargaining unit~ such a range must fa!l
within the ambit of reasonableness.
To bo!ster their argument regarding the basic irrelevance
of SWFs, the Co!!ege a!so referred to the form for SWFs contained
in Appendix. III. Briefly, they argue that because SWFs are a!so
used for Partial Load Teachers and such are not referred to in
Article 4.05, it must be inferred that there exists no .necessary
connection between these two parts of the collective agreement.
As an alternative argument to the foregoing, the College
argued that, even if one considered reasonabilty to arise out of
the tota! work!oad as shown by a SWF, the Col!ege st11! acted
reasonab!y. Basica!!y, this argument arose out of the fact that
pursuant to Art!c!e 4 a fu!!-time teacher is not simply !imited
to forty-four hours per week. Indeed, this can rise to forty-seven
hours in a week pursuant to Article 4.01(lO)(a). In this regard,
!t might be noted that a!l but two of the emp!oyees named would
fal! with!n th!s !imitation. Of course, because such vari. ances
appear to be contemp!ated by the co!!ective agreement, the Co!!ege
urges that these shou!d be cons!dered reasonab!e. Again, with
respect to the two persons in question it was argued that when one
!oo~s at the specific circumstances of these cases it cannot be
conc!uded that on their face they are unreasonab!e due to the
specific loads hired or the errors made in estimation.
In short, it was urged that reasonability is a concept
which requires an examination of specific facts and is not consis-
tent with a hard and fast rule. In the present case, this type of
evaluation coup!ed with the analysis of Article 4, would lead to
a decision favouring the College.
Fina!!y, the'CoIl~ge-argued that no matter which of the
foregoing analyses one took to look at the matter, it is st11!
necessary for some evidence of the negative impact upon.members of
the barga!ning un!t to show a breach of Artic!e 4.05. Further, it
was argued that there must be some connection .between the teaching
load assigned and the impact which occurred on the barga!ning unit.
· Naturally, it was argued that in the present case there :was no
/. evidence of either such a connection or impact upon'the bargaining
unit. In the same vein, it was argued that with respect to the
present assignment, there is no way the College could alter the
situation to meet the argument of'the Union.
In result, therefore, the College requests that this
grievance be dismissed.
Having considered the foregoing matter, the Board is of
the view that this grievance should be dismissed.
In coming to this conclusion, in a general way the Board
accepts the thrust of the College argument. Thus, it seems to us
that what is in issue is the teaching functions undertaken by the
excluded teachers rather than their total work with the College.
Normally, full-time teachers would have considerably more adminis-
trative duties attached to their appointment than would a part-time
teacher. Accordingly, to draw a parallel between the two in, terms
of the results of SWFs would be unreasonable.
We also agree with the position taken by the College
that reasonability requires an analysis of the various individUa!
cases. Here, the argument that forty-four hours per week is not
a maximum and that the collective agreement contemplates higher
loads finds favour with us. Obviously, if~.¢ul'l~-time %e'achers were-
teaching forty-seven hours as determined by Article 4, such would
not constitute a breach of the collective agreement. Accordingly,
it is hard to see how that could be considered as unreasonable for
them. To use the Union argument, if it is reasonable for a full-
time teacher it is difficult to see how it would be unreasonable
for a part-time teacher.
Using the foregoing analysis, one can see that an examihation
of the two persons who exceeded the forty-seven hours per week shows
-that one of the persons involved taught a rather heavier load the first.ii:i:,!
part of the term and a lighter load in the second half of the term.
On balance, such does not appear to be unreasonable. With respect
to the remaining teacher above forty-seven hours, the Board is not
convinced that such gives rise to a breach such as is suggested
by the Union in the present case. Obviously, certain difficulties
will always be encountered in prognosticatin§ the enrollment uhich .-
will finally occur in a particular class. Making one s.uch error
does not seem to be offensive of the clause in issue.
Accordingly, this grievance is dismissed.
DATED at Lynden, Ontario, this ~P~x_~jof ~ 1988. i,
Chairman.
W. Majesky
- ~.~. ':,",..:p?
A. S. Merritt
DISSENT
After reviewing the evidence I must come to the conclusion that
there is merit in the unions argument that in fact there were
specific violations of the collective agreement, and that
factually there were teachers working in excess of the work load
of 44 hours.
Secondly, there are valid reasons that arise that could have an
impact on the integrity of the Bargaining Unit.
Clearly if you have some sessional teachers who are working
over/above their standard work load and they are excluded from
the collective agreement, that puts pressure(s) on the existing
collective agreement.
This is even more so if you took a section of the college, in
this case the Business department, where there is a
disproportionate number of sessionals in comparison to other
parts of the college.
It is quite obvious that if you assign additional hours to
sessional teachers that in time it will adversely effect both the
collective agreement for full time teachers.
But, further the agrument that teachers are not limited to 44
hours per week, but in fact their work load can be extended to 47
hours per week is a bit inaccurate, in that the extension of work
formula from 44 to 47 hours is really in effect overtime hours
worked, and secondly the overtime is voluntary.
4.01 (2) (a)
Total workload assigned and attributed by the college to
teacher shall not exceed forty-four (44) hours in an~
week for up to thirty-six (36) weeks in which there are
teaching contact hours for teachers in post secondary
programs including nursing and for up to thirty-eight
(38) weeks in which there are teaching contact hours in
case of teachers not in post secondary programs.
Clearly the total work load is 44(per week). ~
But, the following section 4.01 (10) (a) states.:
"Notwithstanding the above, overtime worked by a teacher
shall not exceed one (1) teaching contact hour in any one
week or three (3) total work load hours in any one week
and shall be voluntary."
So in effect any hours up to 47 hours per week are in effect'
overtime hours and more importantly these hours are voluntary
overtime. So to say that teachers work load can rise up to 47
hours per week is not factual in that these hours are not part of
the standard work load as stated in 4.01 (2) (a).
Since the argument by the college that teachers working in excess
of 44 hours wasn't unreasonable really isn't the issue. The fact
of the matter is, the standard work load, as spelt out in 4.01
(2) (a) is 44 per week, and clearly there were sessional teachers
working in excess of 44 hours. And, since these sessional
teachers were working in excess of 44 hours per week they should
be accorded the same provisions as accorded full time teachers,
and that is:
Compensation of 0.1% of the salary they would receive if on the
salary schedule for teaching masters according to the
classification plans for each work load above 44 hours per week.
This should apply to each sessional teacher who worked in excess
of 44 hours per week.
And the rationale quite simply is: that the college should not
circumvent the provisions of the collective'agreement by
assigning work loads in excess of 44 hours per week to sessional
employees; because as the union stated this in effect undermines
the integrity of the bargaining unit; and as such I agree with
the unions position.
Respectively submitted by
Wally Majesky
Union Nominee