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HomeMy WebLinkAboutUnion 96-06-28~ ~ j _ . IN THE MATTER OF AN ARBITRATION FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (THE COLLEGE) AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF THE UNION GRIEVANCE RE ARTICLE 4 BOARD OF ARBITRATION: HOWARD D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE RON HUBERT, COLLEGE NOMINEE APPEARANCES FOR THE UNION: ALICK RYDER, Q.C., COUNSEL PADDI MUSSON, LU PRES. APPEARANCES FOR THE COLLEGE: ROBERT J. ATKINSON, COUNSEL GAIL ROZELL, ASS'T DIR. HR HEARINGS IN THIS MATTER WERE HELD AT LONDON ON OCTOBER 18TH AND 19TH, 1995 AND AT TORONTO ON FEBRUARY 7, 1996 AWARD - 1 - The grievance was filed by Paddi Musson on October 16, 1990 for the Local Union which grieved that: "the College has violated Article 4 when they assign Continuing Education teaching to several teachers and this teaching was not recorded on the SWF and further this teaching does not meet any of requirements of Article 4. As remedy the Union seeks damages for the individuals and a declaration from the College and it will cease and desist from this practice." The College took the position at that time that as the grievance arose under Articles 4.01 and 4.02, it could not be the subject of the grievance procedure and in the alternative that the work did not form part of the faculty members' assigned workload and should not be included on their SWF. The matter first came on for hearing on May 23, 1991 at which time following submissions of Counsel for the parties on the preliminary issue of arbitrability, the Board decided to adjourn the hearing until the appeal of the Burkett award which had been issued on March 29, 1989 pertaining to this issue had been decided. That award was dealt with in a judicial review by the Divisional Court and subsequently by the Ontario Court of Appeal which decision was rendered on June 8, 1994. Following that decision, this grievance was rescheduled for hearing. There is no continuing issue with regard to the arbitrability of this grievance which arises under the provisions of a collective agreement covering the Academic employees of the College effective from SePtember 1, 1989 to August 31, 1991. The issue concerns the application of Article 4 which has been continued in subsequent collective agreements between the parties subject to a change in the language and effect of Article 4 in the collective agreement covering the period September 1985 - 1S87. Following which, except for a change in the Article in the agreement of the word "exceptional to atypical", there have been no other changes to this Article. Ms. Musson testified that by March 1984, they knew that the College hired regular full-time teachers to teach Continuing Education courses. Individual teachers were approached to teach these courses. When the change to Article 4 became effective in September 1986, the College continued its practice to hire full- time professors to teach Continuing Education courses. The Union's position was that the College had the right to assign work in Continuing Education to its members but consistent with the negotiated language and various discussions occurred between the parties on this issue. It was made clear to the College that it was the Union's position for any teacher, their work under the maximum weekly hours would not be overtime but would be part of their normal workload and any work in addition, would be overtime. Those employees covered by the collective agreement were not to be treated differently in the evening when they performed the same teaching which was a separate activity which the College assigned to them. A local agreement was not entered into by the parties as the College intended to continue to assign full-time employees to teach in Continuing Education without giving credit for it by including that teaching on the SWF which position the Union would not accept. Ms. Musson said there were difficulties obtaining the information at that time about those of its members who were performing Continuing Education work and a grievance was filed about that issue. A list of credit course teachers in 1988 and 1989 was given to the Union but they did not know the extent of the problem but gave the College notice that the Union did not accept its position that this work would not be recorded on the SWF. The issue was referred to Arbitrator Teplitsky. Another problem was indicated when individual teachers used private corporations to provide teaching services in Continuing Education while their teaching during the day was on an individual basis under the collective agreement. She said that issue was resolved in 1992. Following the release of the Chair's decision in Re Canadore ColleGe (February 20, 1990), the Union claimed that the College on that basis was in breach of Article 4.01 by assigning work to full- time professors in Continuing Education and not including that time on their SWF. That issue was discussed at a Joint Union/College Committee meeting at which it was indicated that the College took the position that the Canadore arbitration did not apply to it. Subsequently, the President advised Ms. Musson that there "should be no presumption that Fanshawe College will automatically be applying the results of the Canadore arbitration" and requested consideration of a local agreement which would permit the continuation of the practice of the College. On June 28, 1990, Ms. Musson responded that a committee meeting could be called but in the meantime, the Continuing Education work by the members should be included on the SWFs. When the grievance was filed, the College had engaged full- time professors to teach in Continuing Education in courses taught usually in evenings ~nd in weekends. As well, up to forty full- time professors who teach in Continuing Education perform their regular teaching duties during the day and do not have their continuing education hours included on their SWF. In October, 1990, the Academic employees were facing layoffs and were concerned with their job security. Ms. Musson said that it was never the College's position that the Union had waived its rights to proceed with the issue in this grievance but agreed that before the Spiller grievance in 1989, the Union while challenging the Company's practice, had not filed a grievance on the issue but said it knew the Union's position on this issue. She thought it best to attempt to enter into a local agreement to strengthen the job security provisions, although the College was then in violation of Article 4. She said this was a serious issue which was changed completely after the Canadore award was issued but the College knew the Union's objection prior to the Spiller grievance was filed and that it proceeded with its practice at its peril. The Union did not indicate that its position on this issue had been abandoned. Its members approved of the Union's position to attempt to maximize their job security which led to the grievance filed in these proceedings. The College's submission in this case is essentially that the evidence of the practice of the College in hiring on an individual basis, teachers for Continuing Education courses including full- time faculty members who have volunteered for such teaching and have entered into individual contracts of service with the College for their time so involved, are circumstances which remove this grievance outside the ambit of the Canadore decision which should not therefore be applied. It is its principal position that when full-time staff members are hired to teach courses in Continuing Education that this teaching time is not covered by the collective agreement and therefore does not fall under the terms of Article 4. In its submission, the extrinsic evidence is of a clear and consistent practice at this College of treating these teaching hours as not being included under the terms of the collective agreement. Alternatively, it is its submission that the doctrine of laches should apply to preclude the Union from proceeding with its grievance. David Grimes, Dean of the School of Continuing Education since 1980, has been involved with extension courses since his employment with the College in 1967 with the concept in the schools to provide part-time studies and training for adults outside of their regular hours to upgrade themselves in various areas. Courses are offered in twenty locations in the Counties of Elgin, Middlesex and Oxford for credit and non-credit courses with the bulk of the activity in non credit. Courses are divided into career related, general interest and contract training which are completely separate from the courses offered at the day school. There are about 5,000 activities in a year in Continuing Education involving about 1,000 individuals who deliver those courses. They may involve more than one instructor for each course and are drawn mostly from occupational training and business related activities and are not part of the Academic bargaining unit at the College. Currently, there are 24 to 30 full-time members of the bargaining unit who teach on a part-time basis in the Continuing Education School. Many courses are set out in the guide for the school but not all are provided as they determine the interest and need in the community and react to unsolicited proposals for courses. These can involve diploma programs which may be taught as well during the day for persons who are working elsewhere when the courses are offered in day school, some of which are given by full-time staff who may have proposed the courses to be offered. These instructors were paid at an hourly rate separate from the wage scale in the collective agreement but that arrangement was subsequently changed to a payment per student to the instructor and sometimes to a personal corporation and most are paid through the regular payroll system of the College. Some instructors invoice the College for their services but with difficulties in that system, a formal process was set up for those with whom they would contract to determine if they were an independent contractor for the purposes of the tax department. Mr. Grimes said that the Continuing Education School operates separately from the Day School; he reports to a Vice-President of Community Services for budget and is separate from the academic services. The courses in Continuing Education are determined by - 7 - the staff based on the need and they design the courses and hire ~e instructors. There is no formal selection process in hiring instructors for Continuing Education as is applied by the College Human Resources Department. They ask on a volunteer basis for full-time teachers to teach in Continuing Education. They can agree or not and there is no obligation on their part to meet a ~request to teach in Continuing Education. They do not report to the Chairs and are not assigned work if they are not willing to do it. An instructor is hired for a particular course and accepts through a pay and appointment form, to teach the course at the indicated community. Confirmation is given by letter to the individual instructor by the Chair involved. If there is not a sufficient enrolment in a course, it is not run. This process has ~ssentially been in effect since 1967. They use a set of pay ranges dependent on the type of course without benefits which are not related to the collective agreement. Mr. Grimes said that full-time teaching masters have been used to teach courses in Continuing Education since 1967 and their hiring has never been considered to be covered by the terms of the collective agreement but rather separate from their regular duties. Some of these individuals have been members of the Union executive but he was aware that in the early 1980s the Union had challenged the practice of using full-time teachers working in Continuing Education that such work should be part of their regular workload which has not been the practice at the College. That practice did lot change with the introduction of the SWF but continued to hire staff in the same manner for Continuing Education courses. The - 8 - change to Article 4 did not have any effect on this practice. With his interaction with others in Continuing Education in the province, he said that other Colleges operate Continuing Education in the same manner as Fanshawe and had full-time academic staff members teach in Continuing Education on a voluntary basis who are paid differently than under the terms of the collective agreement. He was aware through the Union/Management Committee in 1987 that this issue was raised by the Union and it had been discussed over several meetings but nothing happened. It was his impression that Union had decided not to pursue the issue because many of their members wanted to continue to teach in Continuing Education. He did not hear anything further until the grievance of Mr. Spiller was filed in 1989. The decision in Canadore ColleGe appeared to be contrary to the practice at Fanshawe which had existed for over 20 years and the award was not applied by them but said if it was, in all likelihood they would not hire full-time academic members to teach in Continuing Education. It would be too costly and would affect the manner in which courses are determined to be offered to the public without so much reference to community needs but availability to teach from their payroll. He agreed that no one from the Union told him that what the College was doing with regard to hiring Continuing Education teachers hiring was accepted or lawful as to the hiring practice of full-time academic members nor did he tell the Union that its failure to grieve on this issue was taken as an acceptance of the College's practice which continued in the same manner after the Spiller grievance was filed. The - 9 - practice by the College of engaging full-time staff members to teach in Continuing Education has continued from 1967 until the present notwithstanding the position taken by the Union in 1986 and the amendments to the collective agreement at tha~ time and with the knowledge of the Burkett decision and the award in Canadore College. Throughout this time the College's practice has been consistent in hiring full-time teachers to teach courses in Continuing Education. It is the submission for the Union that the Canadore award is correct and should be confirmed and applied by this Board. There is no ambiguity in the collective agreement to allow the use of extrinsic evidence as a interpretive aid. In the alternative, the evidence supports the Canadore decision. It was submitted that the doctrine of estoppel or waiver has no application to the facts of this dispute. The former Article 4 specifically allowed teaching masters to teach beyond the maximum hours covered by the collective agreement if they entered into a voluntary agreement with the College which was confirmed in the Bastedo award. Effective however, on September 1, 1986, the amendment to Article 4 included the adherence to the workload requirement which then became mandatory and as well, introduced the use of the SWF in which the details of the total workload are set out. In 1987, the Union raised the issue of the teaching in Continuing Education being considered as overtime work while management maintained its position that such work was not covered by the collective agreement. The Union did not alter its view prior to the assertion of its position in 1989. - 10 - Reference was made to Re Fanshawe College and OPSEU (Kruger, February 27, 1991) where it was found that full-time support staff are included in the bargaining unit and when teaching work authorized by the College in addition to their normal hours of work is overtime and found a violation of Article 6.2. The Union was not immediately aware of the extent of the issue relating to the use of full-time staff for teaching in Continuing Education and it required a decision on the jurisdictional issue under Article 4 which was not decided until after the Union had grieved and as well, it did not have all the information concerning the use of personal corDorations. This is a continuing grievance of the Union to which the doctrine of estoppel should not apply in that the grievance filed on October 16, 1990 followed both the Spiller grievance filed in 1989 and the Canadore award during and after which the practice of the College continued and would not have changed had the Union filed an earlier grievance. It is the Union's position that there is a violation of the collective agreement by the failure of the College to include teaching in Continuing Education in the SWF of the full-time teachers involved and when their total workload exceeded the maximum hours allowed in Article 4 as a result. This is supported in the Canadore award which should be binding upon the parties unless it is found to be manifestly wrong and that a different result should apply because of the extrinsic evidence entered in this case the admissibility of which the Union disputes. - 11 - There is no exception to the application of Article 4.01 which in its submission has been violated by the College's practice to have full-time professors teach courses in Continuing Education whose hours then exceed the maximum hours provided in the collective agreement which is not permitted by the collective agreement. There is no meaning suggested other than what is the language of the collective agreement and there is therefore no patent or latent ambiguity in that language. In the alternative, it was submitted that the evidence of the practice of the College does not support its position and no correction to the practice was entered into after the Canadore decision. There is no clear evidence that the Union waived its right to assert its position as to the meaning of Article 4 or evidence of detrimental reliance by the College on such a position. The College was not prejudiced by any delay as its practice in the Continuing Education School did not change. It is the Union's position that the total workload assigned in Article 4.01(2) (a) includes the hours of teaching courses in continuing Education by a full-time professor covered by the collective agreement. The Union seeks a declaration that the College is in breach of Article 4 by failing to include all hours of teaching in Continuing Education in the SWF for a full-time professor and that there was a breach of the total workload provision as the total hours worked exceeded the maximum hours of work allowed under Article 4. - 12 - The submission for the College is that when full-time professors are hired to teach Continuing Education courses that teaching time is not covered under Article 4 of the collective agreement. That position is buttressed by the extrinsic evidence which shows a clear and consistent practice of the College of not including teaching h0urs in continuing education as part of teaching hours under the terms of the collective agreement. Alternatively, it was submitted that the grievance was filed late by the Union and should be rejected on the basis of the doctrine of laches. The practice of the College has been in Dlace since 1967 which is to hire by voluntary agreement, full-time teachers to teach Continuing Education courses and has always treated those hours outside of the collective agreement and not hours of teaching assigned by the College to the full-time teachers who have volunteered for this work. Article 4 has no application to voluntary agreements between the College and full-time employees. It is submitted that the Canadore award should be applied within the context of the long existing practice of the College that "assigned" should be used in a narrow sense. At least, it should be found that there is an ambiguity as to the intended meaning of "assigned" which is clarified by the evidence of the College's practice which discloses the intention of the parties. The Canadore decision is not binding on this Board and in the circumstances of this College's practice in Continuing Education should not be applied. - 13 - The terms of Article 4 do not apply where full-time professors voluntarily agree to teach Continuing Education courses and their time therefore is not recorded on their SWF and is not included to calculate their maximum teaching time. The practice of the College is clear and has been known to the Union which filed a late grievance which prejudiced the College in view of its practice throughout which the voluntary hirings of full-time staff were not treated as being subject to the terms of the collective agreement in any way. The conditions for teaching the Continuing Education courses including payment to the teachers was separate from the academic divisions in the College. Reference was made to Re Fanshawe College and O.P.S.E.U. (Bastedo, February 5, 1982) to support its submission that teaching in Continuing Education is not work assigned by the College to the full-time professor who has volunteered to teach these courses. The College does not require the work to be done by that teacher. In its submission, the issue decided in that award is the same as which arises in this grievance and should be followed by this Board in view of the practice of the College of which the Union was aware at that time and which it has continued. Reference was further made to Algonquin College and oPSEU (Weatherill, February 16, 1981); Re Cambrian College and OPSEU (OLRB, 3148-84U); Re Loyalist College and OPSEU (Howe, August 29, 1994); Re George Brown College and OPSEU (Mitchnick, February 16, 1993); Re Cybermedix Health Services and OPSEU. Local 544, 11 L.A.C.(4th) 334 (H.D. Brown). - 14 - It is clear from the minutes of the committee in March and April 1987 that the Union's position as to the use of hours in Continuing Education to be applied to a teacher's full-time workload was put to the College with its concern for job security of the bargaining unit. There were discussions through this period whereby the College indicated its position that full-time teachers who were teaching in Continuing Education performed a separate activity not related to day teaching which and was not included in their regular workload nor was it overtime work. While no formal action was taken by the Union under the grievance procedure until the Spiller grievance in 1989, the evidence indicates that the Union's position of which the College was made aware has not changed and the college did not change its practice of employing full-time teachers in Continuing Education on a basis separate from the collective agreement. That practice did not change upon filing of the Spiller that grievance or the Union's grievance giving rise to this matter on October 16, 1990 or indeed after the Canadore award was released. The College has consistently maintained its position that teaching by full-time professors of Continuing Education courses is not work covered under the collective agreement and is therefore not accountable pursuant to the terms of Article 4. The Union clearly asserted its contrary position most probably in 1986 but at least in 1987 and there is no evidence of any representation to the College by the Union since that time that it would not assert what it considered to be its rights under Article 4 in these circumstances. - 15 - We find that there is no evidence of representation to that effect or reliance by the College of any such representation to its detriment. The College was fully aware of the Union's position throughout the period prior to the filing of this grievance and it had clearly taken the position that the collective agreement did not apply in such circumstances. It therefore continued its practice of employing full-time teachers in the school of Continuing Education hiring them personally or by contract through a personal corporation, to teach courses in Continuing Education at nights and weekends outside of their daytime teaching responsibilities. The College consistently maintained that this was a voluntary arrangement with the individual teachers which is not covered by the provisions of Article 4. There is no evidence that in the continuation of this practice by the College, it relied in any way on any representation by the Union that in such circumstances, the Union would not assert the application of Article 4.01(2) (a) of the collective agreement. We find, as there was no clear representation made by the Union adverse to its position as to the application of Article 4 or that the College demonstrated any detrimental reliance in that regard that the doctrine of estoppel has no application. Further, we find that the Union did not unreasonably delay the filing of this grievance by doing so on October 16, 1990 and that the College was not prejudiced thereby for the same reasons applied above. The intervening period after the issue was raised by the Union in 1986-1987 involved the gathering of information not readily available to the Union, the filing of the Spiller grievance - 16 - in 1989 which related to the teachers' work in Continuing Education; the Burkett award dealing with jurisdictional issue of the application of Article 4 to these issues and the Canadore award. During this time, the Union has not altered its position as to the application of Article 4 which was brought to the attention of the College as early as 1986 and the College, according to the evidence, did not make any adverse assumption by the absence of a grievance concerning the practice of the College in this regard which did not change and there is no evidence that the College would have proceeded differently if the Union had filed an earlier grievance. The issue involves a continuing concern of the Union of the practice of the College and the application of Article 4 to teaching in Continuing Education by full-time teachers of which the College was constantly aware. We find that there was no unreasonable delay in these circumstances in the filing of this grievance by the Union. There being therefore, no prejudice established by the College through the expiration of time prior to the filing of this grievance, it cannot be found that the Union unreasonably delayed the processing of the grievance which could form a bar to the arbitration. We Conclude that the doctrine of laches does not apply in the circumstances of this grievance which we find to be arbitrable. We find that this Board has jurisdiction in this matter to deal with the merits of the grievance. The essential position of the College is that in view of its consistent practice since at least 1967 in hiring on a voluntary - 17 - basis, full-time teachers to teach Continuing Education courses on terms outside of the collective agreement provisions, that the Canadore award should not be followed and applied in these particular circumstances. The College relied on the Bastedo award as to the interpretation of an instructural assignment. That award dealt with terms of Article 4 which were subsequently amended effective September 1996 and was dealt with in the Canadore award as it was relied on in the submission for the College in that case. The Bastedo award dealt with a different fact situation than in the present matter in that it dealt with assignments of Continuing Education courses under individual involuntary agreements which were not covered by the collective agreement. As indicated above, Article 4.01 was amended in 1986 which must be given meaning and was dealt with in the Canadore award with reference to the distinction between the contract language dealt with in the Bastedo award and which later applied. The present article prohibits workload assignments exceeding a maximum number of hours, a violation of which is a breach of that Article. In the Canadore award, it is stated at Pages 16-17: "By Article 4.01(2) (b) an hour of teaching in Continuing Education falls within the definition of a teaching contact hour because after the arrangement has been made for the services of the teacher for that course, the teaching hour is assigned by the College to that teacher in Continuing Education. Those hours of teaching are not excluded in that definition as has been done in Article 8 which deals with seniority and more particularly in Article 8.09 referred to above. That form of exception has not, been placed by the parties in Article 4 which therefore does not expressly exclude Continuing Education courses from its application. As Continuing Education course teaching hours are not excluded, there is no reason - 18 - in our view, to conclude that the maximum workload provided by the parties can be ignored by a voluntary arrangement to teach with individual members of the bargaining unit who voluntarily enter into individual contracts of employment with the College. The Board finds differently than in the Bastedo award that such contractual arrangements to provide teaching hours does detract from the terms of the Collective Agreement. Therefore, when the College enters into a separate agreement although voluntarily obtained, with a full-time faculty member in the bargaining unit to teach courses in the Continuing Education program in evening the arrangement must be tested under the terms of Article 4.01 in the context of determination of the workload to which the College has agreed under the terms of Article 4..." We are not persuaded by the evidence of the practice of the College that firstly there is any ambiguity in the language of Article 4.01(2) (a) to allow the use of that evidence in the interpretation and application of that provision and secondly, that it does not affect the cogency of the Canadore decision which dealt with and is applicable to the same terms of the collective agreement to which the College is bound and provided a direction on the same issue arising in this grievance which the College ignored at its peril. At Canadore College, full-time faculty members were hired by the College to teach in Continuing Education in addition to their regular teaching workload. The statement of facts reproduced in that award are generally consistent with the evidence of the practice at Fanshawe in that the teachers involved had volunteered to teach the Continuing Education courses were paid separately from the terms of the collective agreement and those hours were not recorded on their SWF. The courses and manner of teaching in Continuing Education is similar. While at Fanshawe, this practice has continued for perhaps a longer period of time but the College's practice in engaging full-time teachers to teach in Continuing Education is essentially the same and gave rise to the same issue which led to the grievance at Canadore in which a violation of Article 4 was claimed. The same issue arising from similar if not relatively the same facts, the same collective agreement applicable to the Colleges with an award which provides a clear disposition of the issue should, in our opinion, be followed for the purposes of consistent application in the administration of this collective agreement unless it has been shown to be manifestly wrong. We cannot so conclude and reject the submissions of the College on that ground. We adopt the reasoning in the Canadore award not to follow the Bastedo award and at pages 16-17: "The full-time faculty member in the bargaining unit is covered under the terms of the collective agreement in effect between the Union and College and does not lose that protection, benefit or obligation at the end of his regularly assigned teaching hours during the day. Article 4.01 does not differentiate between day and night classes for the purposes of assessment of a teachers total workload." The Board in that case found that the College in fact had assigned and attributed teaching contract hours as defined in Article 4.01(2) when it entered into any arrangement with full-time teachers covered by the collective agreement when teaching - 20 - Continuing Educational courses. We find that the same conclusion must apply on the facts of this grievance. The Mitchnick award did not apply the Canadore decision nor was it rejected. That Board dealt with a different situation not involving a full-time professor but rather a teacher hired to teach courses only in Continuing Education. The issue concerned the status of such teachers. That is not the same issue which arises on the facts of this grievance as there is no dispute concerning the status of the full-time professors who are members of the bargaining unit. The practice of the College in hiring those persons for teaching in Continuing Education though long standing, does not we find, demonstrate the intent of the parties in the administration of Article 4, the language of which was substantially altered in 1986. From that point at least, the College was aware as noted above, of the Union's position which was contrary to and not consistent with this practice of the College. The College has entered into contracts for the engagement of full-time teachers who can accept or reject the offer to teach Continuing Education courses but when that arrangement has been concluded, the College has made an assignment to teach a certain number of hours pertaining to a particular course supplied by the College to the public. The College offers courses to the public through its Calendar and depending on interest and enrolment, arranges to have a course taught. The type of courses offered range from interest based to diploma courses where essentially the - 21 - same material is taught as at day school and for which students .receive a credit. If that involves the hiring for the course of a full-time employee covered under the collective agreement, we find that Article 4.01(2)(a) applies as the teaching of the course is expected by the students who have enroled and that work has been assigned and attributed by the College to that teacher who is thereafter responsible to provide what the College has offered to the students. To have work assigned or attributed to a teacher does not necessarily mean that compulsion is involved. To "attribute" is to ascribe what may belong to that teacher by the very assignment by the College of a course which the teacher has indeed voluntarily agreed to teach. Once the agreement has been concluded, there is an obligation of both the College which assigns the duties and the teacher who has accepted that assignment to produce the course of teaching. The College clearly has attributed that course to that teacher whether during his regular day time duties or in Continuing Education at nights or weekends. Those courses when set, are required to be taught to those enroled by the College and for which teachers must be found. When the arrangement involves teaching by those employees who are covered by the collective agreement, it must be concluded that the College has assigned that work for the purposes of Article 4.01(2)(a) and must therefore apply the workload maxima. To obtain the amount of a teacher's workload, all of the teaching hours must be recorded on their SWF. As found in the Canadore award, when those total hours exceed the maxima, the College has violated the collective agreement. Article 4.01 does - 22 - not provide exceptions to its application such as found in Article 8.09 referring to the exclusion of Continuing Education Programs in the application of seniority which could have had the parties so intended, been excepted as well for the purposes of the workload provisions. There is no express intent to the parties to exclude such hours from this provision. Having carefully reviewed the evidence and submissions of the parties, the Board is not persuaded to ignore or alter the effect of the Canadore award, the ratio of which decision we find applies to this grievance in that the total workload assigned and attributed by the College pursuant to Article 4.01(2) (a) includes the teaching.of Continuing Education courses by full-time employees covered under the terms of the collective agreement. The Board therefore finds that the College was in violation of Article 4 of the collective agreement as alleged by the Union. It is our award that a declaration shall issue that the College when failing to include hours of teaching in Continuing Education in Standard Work Forms of the full-time teachers and exceeding the - 23 - maximum allowed hours is a breach of Article 4 of the collective agreement. DATED AT OAKVILLE THIS ~ DAY OF JUNE, 1996. HOWARD D. BROWN, ARBITRATOR SHERRIL MURRAY, UNION~ NOMINEE RON HUBERT,, CULLEGE NOMINEE Dissent The union position in this case and subsequently that of Board majority relies extensively on the rationale of the Canadore Board heating a similar fact issue by the same Chairman. The evidence adduced in the heating of this grievance provides a factual basis to more fully consider the intent of the parties in staffing the Continuing Education Division as it relates to application of the collective agreement and the practice of the parties for many years. At the outset, let it be said that dating back at least to 1967, bargaining union members have volunteered to teach Continuing Education, work not covered by the collective agreement, and this work at Fanshawe as well as other Colleges in the system was known and accepted as being outside the purview of Article 4. The Union in this College and elsewhere, as established in evidence, had full knowledge of the practice, did not object for some 20-30 years, and did not raise the subject in collective bargaining as being something potentially in conflict with the collective agreement under the wording that currently exists or before. To bring about a change in the application of the agreement to a practice that has been so consistently applied during the term of the agreement rather than through the process of collective bargaining is improper, particularly when considered in the context of Article 4 and the -2- meaning of "assigned" as applied extensively throughout the agreement. The meaning of "assign" is clear and cannot in the context of how it is used throu~out the agreement be implied to include work voluntarily undertaken by bargaining unit faculty to do non-bargaining work. If there is any lack of clarity in the interpretation of Article 4, then there is a latent ambiguity in the wording and the evidence of the consistent practice should be determinative of this issue. It is a fundamental principle of good labour relations and the maintenance of a good working relationship between the parties that neither party should achieve a significant gain or change in practice or significant altering of the interpretation of the agreement that was not obtained through collective bargaining and with the full understanding of the parties. This decision is at variance to that end. Let's examine the facts and the agreement more closely. The evidence of Dean Grimes, Dean of Continuing Education establishes that the school of Continuing Education is organizationally and in its reporting relationship slructured differently from those credit courses that comprise the day school programs at Fanshawe College. Continuing Education has a different purpose than the day program, different funding, different clientele and offers courses during the evening and week ends. Most of the faculty are recruited from the community at large and others are -3- obtained from the academic bargaining unit who respond to advertisements or who make specific requests to be given consideration for a teaching contract for a subject of their choosing. Grimes' evidence confirmed that throu~out the past 20 years, the manner of recruiting faculty to teach Continuing Education and how they were paid had nothing to do w/th the collective agreement. It was not considered as work falling within the scope of the bargaining unit. Grimes confirmed that should a faculty member not be interested in teaching Continuing Education, that ends the discussion. Any agreement arrived at is solely on a voluntary basis. Upon reaching an agreement to teach, separate documentation is entered into including a rate of pay not covered by the agreement and the operation of the course is always conditional upon sufficient enrollment to justify nmning the program. This practice was confirmed as being outside the scope of the bargaining unit, known by bargaining unit faculty, and accepted by the parties. -4- By paying a much lower rate for this type of teaching and no benefits provided, it is abundantly clear that the practice was accepted and understood by the union. At no time has the union negotiated or demonstrated an intent to have Continuing Education teachers or Continuing Education work considered as part of the workload arrangement under the agreement or part of the bargaining unit. The evidence of Grimes in respect to the foregoing was unchallenged and confirms that Continuing Education has never been considered as part of the agreement and the way work is done. Turning then to the agreement, Article 8.09 reads: "Extension and Continuing Education pr%m-ams and courses which are not included in the re~lar assignment of full-time employees are excluded from the application of this Article for all purposes". This provision clearly estabhshes that Continuing Education programs can be excluded from the regular assi,.mament of full time facul.ty, otherwise it has no practical meaning. It was the practice to exclude Contimfing Education fi'om the regular assignment by signing a voluntary agreement to teach a course not normally taught by the faculty. It is really no different than going and obtaining another part time position with another employer, but ha this case it is still with Fanshawe. It flows from this provision that when Continuing Education becomes -5- part of the regular assignment of the teacher, all provisions of the collective agreement apply including seniority, rotes of pay, benefits, and including the hours being added to the S.W.F. If Fanshawe College were to assign Continuing Education teaching hours in the sense of being recl.uired work to make a full work load for the teacher, then it would flow that the hours are part of the regular assignment and would be included on the S.W.F. However in the case before this Board, the teaching hours are not part of the re~lar assi~mu'nent and consequently should not be considered as being part of the normal work load. Where a teacher has been assigned to teach Continuing Education and it was not included as part of the normal work load, the college was found to be in contravention of the a~eement. Other provisions of the agreement support the interpretation of Article 8.09 that Continuing Education can be taught but not as part of the regular assignment of the teacher. Article 7 Management Functions confirms the exclusive function of the college to "assign" and in section (c) to include "the scheduling of assignments and work". A voluntary agreement entered into by the faculty and the college to teach an evening course cannot be construed as being the scheduling of an assignment. "Scheduling" clearly connotes a requirement -6- on the part the teacher to teach and the voluntary interest and expression of a teacher who wants to earn extra money, does not constitute an "assignment". Article 4.01.2(a) provides that the total workload assigned and attributed by the College to a teacher shall not exceed forty-four hours in any week etc. In interpreting a collective agreement, words should be ~ven their ordinary meaning unless the language is unclear in which case past practice should be considered, or if other provisions of the agreement would lead to a different interpretation that would make sense in respect to the application of the agreement as a whole. "Assign" as defined by Webster's includes: * to ascribe to a given time. · to give as a task. When a teacher is assigned a work load there is an obligation on the teacher to perform that work load and fulfill the assignment. It is not optional and this is consistent with the meaning of"assi,ma". When work is assigned, the hours become'attributed by the College to the teacher and the balance of the agreement defines how the assigned hours -7- are treated. For example, in Article 4.01 12('c) sentence two states: "Where a teacher is assiened to work on a Saturday or Sunday, the teacher shall be credited with one and one half times the credit hours normally ~ven for hours so assigned and attributed. The only lo$cal interpretation that can be applied is that work assigned in this manner demands premium payment. Article 4.01 2(b) says "a teaching contact hour" is a College scheduled teaching hour assigned to the teacher by the College. Contact hours that are not assigned do not become part of the teacher's work load and not part of the S.W.F. As stated, the word "assign" is used throughout the provisions of the agreement, Article 4 m particular, and the majority award does not identify any provision where the word could have a meaning different fi.om how it has been applied by the College. A teacher who asks to teach Continuing Education and then enters a voluntary agreement to do so is not assigned Continuing Education as part of his work load. It is tree he is subsequently scheduled to work if there is sufficient enrollment in the course but having a schedule established doesn't connote having the teacher assigned to teach the course. If "schedule" had the same meaning as "assigned", it wouldn't be required in this provision. -8- In summary "assign" as used in Article 4.01.2(a) given its ordinary, interpretation, and supported by the logical interpretation of the word throughout the balance of the agreement does not include voluntary work undertaken by a teacher, with a voluntary contract, and being work not covered by the agreement, and the grievance should not succeed. The hundreds of persons hired by the College to teach Continuing Education are not members of the bargaining unit, and a full time bargaining unit faculty who wants to teach in a similar manner should not be deemed to be~ performing bargaining unit work while engaged in a voluntary agreement to teach Continuing Education. A couple of decisions are further instructive. In the case of George Brown College O.P.S.E.U. 9lA 209 before arbitrator Mitchnick, he reaches the following conclusion at page 23: "But on the issue before us, when one combines the history of the parties' dealings on this issue, together with that of the collective agreement language itself, the conclusion one is overwhelmingly driven to is that pure Continuing Education teachers are not covered by the provisions of the collective agreement as it has been negotiated by the parties." This being the case it logically follows that non-barga/ning work voluntarily accepted by the faculty should not be construed as work being assigned by the College. -9- In a Labour Relations Board decision, O.P.S.E.U.v. Cambrian College of Applied Arts and Technology, S.A. Tacon dealt with a similar fact situation and the conclusion reached was that being urged by the College to be accepted in this decision. At page 1191, section 6 the decision states: "Many full-time faculty regularly teach one or more courses in the extension program, in one or more of the Winter, Summer and Fall semesters. Such courses are separate from the "regular" workload of fuji-time teachers. These positions fall outside the work covered by the collective agreement. The extension program administration contracts individually with the instructors, including full-time faculty, to teach these courses. Occasionally, a full-time teacher will offer a credit course through the extension program "on-load", that is, as part of his or her "normal" workload as a full-time teacher at the College. Instructors are hired for the extension program by the administrative staff responsible for the program in consultation with the various department heads and division directors. Individual full-me teachers may express interest to their department chairpersons in teaching particular courses in specific semesters and/or the department heads may approach individual faculty members before making recommendations regarding the staffing of the extension courses." Again it is confirmed that this work falls outside the scope of the bargaining unit and it would only become part of the teacher's work load when such work is assigned. In the case before this Board, the work was not in any manner assigned by the College. If there is any ambiguity in the interpretation of the word "assigned", then the extrinsic evidence should prevail. -10- The practice in this college and indeed throughout the system has been to accept requests from teachers to teach Continuing Education courses or has solicited their involvement to do so on a voluntary, basis. This arrangement in total has served the var/ous communities well and enabled many unique courses to be available with qualified teachers to teach them, coming from the community at large and the faculty as well. As indicated in the evidence of the College, the College is not in a position to financially support a requirement to apply the terms of the agreement to those faculty wishing to teach Continuing Education. It is the community at large and the full time faculty who will lose by the application of this decision. For the foregoing reasons, being the normal interpretation of the words of the agreement and the established practice known and accepted by the parties, this grievance should not succeed. Ronald A. Hubert, College Nominee