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HomeMy WebLinkAboutGroup 88-04-27 HEADNOTE GSB ~ N/A OPSEU % 87G68 OPSEU Loci 558 Article(s): UNION (OPSEU) vs~ Centennial College (A) Award dated April 27~ 1988 (E~ Palmer) Group grievance. Grievors argue they have not been given adequate time for the marking and filing of grades as per a past agreement. Failing being given adequate time, they request overtime pay for same. Board rules that the effective language was only to remain in effect until August 31, 1986. The next day a new Article 4 replaces the old Appendix "X", thereby making the past agreement non-existent~ Grievance denied~ BETWEEN' CENTENNIAL COLLEGE(/~) (hereinafter called the "College") - and - THE ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (hereinafter called the "Union") BOARD OF ARBITRATION: E.E. Palmer, Q.C. Chairman J. Campbell I. Freedman APPEARANCES FOR THE COLLEGE: J.G. Richardson & Others APPEARANCES FOR THE UNION' R.E. Stoykewych & Others AWARD 2. The present arbitration arises out of a Group Grievance filed by a number of employees of the College. The nature of this grievance reads [see Exhibit III]' We grieve that we have not been provided with adequate time for the marking and filing of grades as per the CIAC award. Failing the provision of adequate time we expect to be paid for the additiona! duty time at our standard overtime rate. This matter was not resolved during the grievance procedure and so forms the basis of the present arbitration, a hearing in relation to which took place in Toronto, Ontario, on 16 February 1988. At that time the parties were given an oppor- tunity to present evidence and argument. It also might be noted that the College raised a number of preliminary objections which will be touched on later. The facts in this matter are not particularly in dispute. Thus it appears that an issue regarding work load was raiSed at the College in the Spring of 1986. The result of this was the issuance of a memorandum on 17 April 1986 which stated [see Exhibit IV]' Recognizing that faculty do work outside of the normal college hours and also have obligations at the college during the marking of exams, and . recognizing that there has not always been suffi- cient time in the past to mark exams and prepare grades, the college will provide a minimum of five full working days from the last scheduled day of classes to the due date of grades. This decision was made by the College Instructiona! Assignment Committee, often referred to as CIAC. This committee was established pursuant to the collective agreement then in effect. e Relevant parts of the collective agreement touching on this matter read [see Exhibit I]: 4.02 (a) Recognizing the unique characteristics of each College, the diversity of programmes and instructional techniques and the consequent range and variety of individual assignments, the parties agreed that within three (3) weeks following the publishing of instructional assignments in September, a College instructional Assignment Committee of six (6) persons (three (3) persons to be appointed by each party and to include the College President or Senior Administrative Academic Officer) shall meet to: (i) consider the application of Section 4.01 to the instructional assignments across the College; (ii) resolve apparent inequitable instructional assignments; (iii) consider a claim by an individual that his instructional assignment is inequitable. The Committee shall in its consideration have regard to such variables affecting assign- ments as: (a) nature and number of subjects to be taught; (b) leve! of teaching and business experience of the faculty and availability of technical and other resource assistance; (c) necessary academic preparation and student contact; (d) examination marking and assessing respon- sibilities; (e) size of class; (f) instructional mode(s); (g) assignments ancillary to instructional activities; (h) previously assigned schedules; (i) other assignments; (j) necessary excessive travel time between assignments. ,' 4.02 (b) A majority decision of the College Instruc- tional Assignment Committee shall be binding upon the parties and the employee(s) concerned and its report shall be completed within three (3) weeks of the referral. 4.02 (d) It is recogized that local resolution of disputes as to instructional assignments is advantageous to al! concerned. Therefore, the College and Union Local Committees appointed under Article 14 have the authority to agree to the local application of Section 4.01 and such agreement may be signed by them and apply for the specific term agreed upon, provided it shall not continue beyond the term of this Agreement as currently in effect. Such agreement shall also not serve as a precedent for the future at that or any other Col!ege. Such agreement is subject to ratification by the Union Local Membership within ten (10) days and is subject to approval by the College President. In any event, on 6 June 1986 the College issued a memorandum which was distributed to the members of the Union setting out dates for the academic year of 1986-87 [see Exhibit V]. This document provided for the period requested by the Union at Christmas. It did not provide, however, for the period of time in issue in this collective agreement at the end Of the academic year. Again, on 11 July 1986 Mr. Devlin, the Executive Vice-President Academic for the College circulated a memorandum regarding the same issue [see Exhibit VI]. To this, on 16 October 1986, the Union responded requesting that the five clear days be provided for marking [see Exhibit VII]. Again, on 24 November 1986 Mr. Devlin wrote the Union indicating that they would not comply '.with the request made'as such was only effective under the previous contract [see Exhibit VIII]. Following this the grievance was filed by the Union on 24 December 1986. The only other factor which might be noted in this matter is that effective 1 September 1985 the following provisions were in effect regarding this issue [see Exhibit II]: 5. Article 4 WORKLOAD NOTE' The provisions of Article 4, Instructiona! Assignments, Appendix X, remain in effect unti! August 31, 1986. On September 1, 1986 that artic!e is replaced by Article 4, Work!oad, below. APPENDIX X INSTRUCTI.ONAL ASSIGNMENTS [Thereafter are found identical provisions to Articles 4.02 (a), (b) and (d) in the previous collective agreement reproduced above.] The position of the Union in this matter can be stated rather simply. Thus, they argue that at the time in question the times noted in Exhibit IV were clearly not provided to all relevant members of the bargaining unit. Consequently, if Exhibit IV was binding on the parties at that time, this grievance should succeed. In their view, the answer to this question must be in th'e affirma- tive. To this end, they note that on its face Exhibit IV speaks to the future by virtue of the words "witl provide" This is buttressed by the p'roximity of this decision to the bargaining of the new collective agreement. Therefore, upon completion of the foregoing, it is argued that Exhibit IV is carried forward into the term of the- latter document. Finally, it.is .claimed that the Note at the 'beginning of Article IV of the present collective agreement does not affect decisions of the CIAC. The College's position is equally as simple to state. Thus, they made two preliminary objectives. First, they claimed the grievance was untimely, the College having informed the Union of their position in July of 1986 and the grievance not having 6. been filed unti! the fo!lowing December. Second, the College c!aims that the de!ay of the Union's response amounted to an acquiescence in the College position which gave rise to an estoppe! argument. On the merits of the Union grievance, it was urged that the function of the CIAC essentially relates to individua! situa- tions and therefore does not have validity beyond an academic year or at least the life of the collective agreement. In any event, it is c!aimed that the Note to the present Artic!e 4 indicates that Appendix X is not in effect after the.date in question and, there- fore, there is no basis to the Union claim. The Board, having considered the foregoing, is of the opinion that this grievance should be dismissed. In coming to this decision, it is our view that it is unnecessary to dea! with the preliminary objections of the College. Similar!y, it is our opinion that the first argument raised regarding the merits of this Case need not be addressed as we!l. The reason for this is that, in our view, the initial Note to Article 4 clearly disposes of this matter. Thus, this indicates that the parties have agreed that Appendix X and its predecessor are only to "remain in effect" unti! 31 August 1986. At that time the Note indicates that the next day the new Artic!e 4 replaces Appendix X. There cou!d be no c!earer language to indicate that, whatever affect previous !anguage had, it no longer exists for the coming academic year. For disputes that would arise during that period of time a new mechanism for the determination of workload has been arranged. A reading of this indicates that it diverges greatly from the one that was hitherto in effect. This, of course, clearly indicates the position that the College takes in the instant case is a correct one. o Accordingly, the Board dismisses this grievance. DATED at Lynden, Ontario, this day of ~ 1988. E. E. yalmer, Q.C. Chairman I concur/d./i.~e~nt.. ~ '~-~q! ~..~. ×' J{..~/C amp be 1 ~/ I. Freedman /