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HomeMy WebLinkAboutUnion 92-01-20 IN THE MATI~ER OF AN ARBITRATION BETWEEN CENTENNIAL COLLEGE (the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") GRIEVANCE RE "MAP 40 PROGRAM" BOARD OF ARBITRATION: Michel G. Picher - Chairperson Sherril Murray - Union Nominee Robert J. Gallivan- Employer Nominee APPEARING FOR THE COLLEGE: D.K. Gray - Coun.qel M. Schaible - Manager, Personnel Services APPEARING FOR THE. UNION: Michael McFadden - Counsel Ron Golemba - Chief Steward A hearing in this matter was held in Toronto on September 25, 1991. AWARD This arbitration concerns the grievance brought by the Union claiming that the Modified Apprenticeship Program in Automotive Technology (MAP 40), in the College's School of Transportation is a post-secondary program. The Union alleges that the College has violated article 4 of the collective agreement in that it does not treat teachers employed in the MAP 40 program as teachers in a post-secondary course for the purposes of remuneration. The College raises a preliminary objection to the grievance being filed as a Union grievance under article 11.10 of the collective agreement. It maintains that the conditions for a Union grievance described within that article are not met in the instant case. The College further denies that there has been any violation of the collective agreement. Article 4 of the collective agreement deals with the workload of teachers. Under its provisions teachers deemed to be performing work in post-secondary programs are given a lower m~mber of teaching contact hours as well as certain related advantages 'in respect of preparation time, evaluation and feedback time as well as the formula governing contact days and teaching weeks. The following provisions are pertinent in that regard: 4.01 (1) Each teacher shall have a workload that adheres to the provisions of this Article. 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 -2- 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 the case of teachers not in post-secondary programs, The balance of the academic years shall be reserved for complementary functiom and professional development. Workload factors to be considered are: (i) teaching contact hours (ii) attributed hours for preparation (iii) attributed hours for evaluation and feedback (iv) attributed hours for complementary functions. 4.01 (2) (b) A "teaching contact hour" is a College scheduled teaching hour assigned to the teacher by the College. 4.01 (4) (a) Weekly hours for preparation shall be attributed to the teacher in accordance with the following formula: -3- TYPE OF COURSE RATIO OF ASSIGNED' TEACHING CONTACT HOURS TO ATrRIBUTED HOURS FOR PREPARATION New 1:1.10 Established A 1:0.85 Established B 1:0.60 Repeat A 1:0.45 Repeat B 1:0.35 Special A as indicated below Special B as indicated below 4.01 (5) (a) Weekly hours for evaluation and feedback · in a course shall be attributed to a teacher in accordance with the following formula: RATIO OF ASSIGNED TEACHING CONTACT HOURS TO ATTRIBUTED HOURS FOR EVALUATION AND FEEDBACK Essay or Project Routine or In-Progress Assisted 1:0.030 1:0.015 1:0.0092 per stUdent per student per student 4.01 (9) Teaching contact hours for a teacher in post- secondary programs (which shall be understood to include Nursing) shall not exceed eighteen (18) in any week. Teaching contact hours for a teacher not in post-secondary programs shall not exceed twenty (20) in any week. 4.01 (11) (a) Contact days (being days in which one or more teaching contact hours are assigned) shall not exceed one hundred and eighty -4- (180) contact days. per academic year for a teacher in post-secondary programs or one hundred and ninety (190) contact days per academic year for a teacher not in post-secondary programs. The Board heard evidence with respect to certain differences between the basic motor vehicle mechanic's course given in the School of Transportation and the MAP 40 program~ both of which have been treated as non-post-secondary courses. Students entering the traditional motor vehicle mechanics course do not need to have a secondary school diploma. The admission requirements in the College's course calendar for that program are described as "Grade 10 and 16 years of age and over". Students who enter that program are attached to an outside employer, such as an automotive service garage, and follow the course, as well as their practical apprenticeship, pursuant to a contract which involves the student, the employer and the Ministry of Skills Development. The student undertakes three College sessions, each lasting eight weeks as well as completing five periods of 1800 hours of in-trade, hands-on apprenticeship. Upon completion of the course and in-trade apprenticeship, following examinations administered by the Minl.qtry of Skilla Development, the successful candidates emerge with a certificate of qualification and their Class "A" licence as a motor vehicle mechanic. The MAP program, which at the time of the grievance was 40 weeks and has since been reduced to 32, is available to applicants who have completed an Ontario Secondary School Diploma or its equivalent. Unlike the entrance into the traditional motor -5- vehicle mechanics program, students entering the MAP program need have no prior practical experience in the field. Motor vehicle mechanics' students (MVM) generally spend a year working in an automotive garage or similar establishment before commencing their formal training. The MAP program, which has existed for approximately 10 years allows the applicant to complete qualifications as a motor vehicle mechanic or in some related field such as that of alignment and brake specialist, autobody mechanic or tran.~mi.qsion specialist in three years rather than the five years required for the traditional motor vehicle mechanics' course. Applicants are sponsored by one of the number of automotive industry companies and are similarly registered as apprentices with the apprenticeship branch of the Ministry of Skills and Development. Their in-school training is front-ended, and is followed by a two-year work period following which they write the same exam for their certificate of qualificatiOn (Motor Vehicle Mechanic Licence) as the students who follow the traditional cOurse. At the risk of oversimplification, it can. fairly be said that the traditional motor vehicle mechanics course and the MAP programs are alternative routes to the same Credential. The students in both programs study the same things and are variously exposed to classroom, laboratory and field work. Within the MAP programs the breakdown and timing of the in-class portion may vary depending on the program of the sponsoring automotive company. For example, General Motors and Honda are said to have their students follow four, eight-week blocks, alternating between college and on-the-job experience, while Ford Canada exposes its students to 32 straight weeks of formal, in-school -6- training before they are exposed to the practical field work. As a result, it appears that there is a less sustained student/teacher relationship in the traditional motor vehicle mechanics course as compared with the MAP program. In essence, however, they are two separate programs with much overlapping content designed to provide the student with access to qualification as a person holding a motor vehicle mechanics licence or related credentials in alignment and brake, autobody or transmission. The prellmlnary objection raised by the College turns on the application of article 11.10. It provides as follows: 11.10 Union Grievance The Union shall have the fight to file a grievance based on a difference directly with the College arising out of the Agreement concerning the interpretation, application, administration or alleged contravention of the Agreement. Such a grievance shall not include any matter upon which an employee would be personally entitled to grieve and the regular grievance procedure for personal or group grievance shall not be by- passed except where the Union establishes that the employee has not grieved an unreasonable standard that is patently in violation of this Agreement and that adversely affects the fights or persons in the bargaining nnit. Such grievance shall be submitted in writing by the Union Grievance Officer at head office or a Local President to the director of Personnel or as designated by the College, within twenty (20) days following the expiration of the twenty days from the occurrence or origination of the drcumstances giving rise to the grievance -7- commencing at Step No. 1 of the Grievance Procedure set out above. The College submits that the claim made in the instant grievance must be viewed as excluded by the foregoing provisions. Its conn.~el submits that the rate of remuneration of teachers assigned to the MAP program is plainly a matter which would be the subject of a grievance which teachers are personally entitled to bring under the regular grievance procedure. He stresses that to place thi.q matter before the Board pursuant to article 11.10 the Union has the burden of establishing that the College has established an unreasonable standard that has not been grieved and which is patently in violation of the agreement. This, counsel maintain.q, is not disclosed in the evidence before the Board. Counsel for the Union does not dispute that the issue at hand is one which could be the subject of an individual grievance, and that none has been filed. He submits, however, that the other requirements of the article are made out, stressing that there is no compelling reason for making a distinction between Map program instructors, who are classified as working in a non-post-secondary course, and those teachers who are remunerated for work in post-secondary courses. He points to the fact that the Map students are required to have a Grade 12 diploma, and that the program which they follow is shorter by some two years, or 40 percent than the program pursued by students in the traditional motor vehicle mechanics course. He also emphasizes that 2/3 of the Map program is in-class teaching, and that the overall program is characterized by a more sustained teacher/student -8- relationship. Counsel submits that the evidence adduced before the Board is sufficient to indicate that the matter should be heard on its merits. We find ourselves unable to agree with the position advanced by the Union. On a number of occasions in the past, boards of arbitration have been called upon to deride whether certain teaching functions are to be classified as post-secondary or' non-post- secondary or, in the parlance of earlier collective agreements, fall within Group One or Group Two. The resolution of those issues has involved the assessment of many factors, in what may be characterized as a relatively subtle or complex analysis. For example, in Seneca College of Applied Arts and Technology and Ontario Public Service Employees Union (Grievance of Bell et al.), an unreported'award of a board of arbitration chaired by Arbitrator Brent dated August 15, 1983 'the issue of whether teachers assigned to the College preparatory program were in Group One or Group Two elicited a review of the design and structure of the program, the source of funds for students, the student intake process, the methods of instruction, the course content and preparation, the location of the course, the educational philosophy and the method of student evaluation. We have no reason to disagree with the thorough and painstaking approach taken by the board in that case, as well as in others. What a review of the awards suggests, however, is that the determination of whether a particular teaching assignment is or is not post-secondary does not necessarily leap from the page. There is, in such cases, some difficulty in finding "...an unreasonable standard that is patently in violation of [the] agreement..." within the contemplation of article 1L10. -9- There is little that is more fundamental to a collective agreement, and to the complex give and take of collective bargaining than the establishment of job classifications and rates of remuneration for employees. For the purposes of article 11.10, it is not for this Board to determine whether two different views as to the interpretation and application of article 4 of the collective agreement can be advanced with respect to the MAP program. By the agreement of the parties reflected in the words of article 11.10 much more must be shown, and we must be satisfied that there is at least a I)rima facie case that the College has applied an unreasonable standard that is patently in violation of the agreement. On the evidence before us we cannot draw that conclusion. The most that can be said is that this is a matter of interpretation of some complexity upon which the parties may fairly have an honest disagreement. The standard to be applied in a case of thi.q kind was touched upon in the unreported award in Sir Sanford Fleming College and OPSEIJ, a decision of a board chaired by G. Brent, dated April 25, 1988, where the following comment was made at p.8: In our view, in order for a violation of the collective agreement to be called "patent" it must be evident or plain on its face that there has been a violation of the agreement. That is, it is not sufficient that the Union can show that arguably it has a case which could be a violation of the collective agreement depending on which of two reasonably possible interpretations are accepted, but rather that there has been a clear, evident and plain violation of the collective agreement. - 10- (See also Seneca College and OPSEU, the award of a board of arbitration chaired by Pamela C. Picher, unreported, dated January 31, 1991). We are satisfied that on the evidence before us the most that can be said is that there is an arguable case on both sides with respect to the interpretation and application of article 4 in the circumstances disclosed. It is not, prima facie, self-evident that instructors in the MAP program should be compensated at-a higher rate of remuneration than those in the traditional motor vehicle mechanics program. Whatever the merits of that dispute, it is not one which can proceed before a board of arbitration as a union grievance under article 11.10 of the collective agreement. For the foregoing reasons the grievance is dismissed. DATED at Toronto this 20th day of January, 1992. ~erson I CONCUR. "Sherril Murray" Union Nominee I CONCUR. "Robert Gallivan" Employer Nominee