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HomeMy WebLinkAboutUnion 89-05-04 GRIEVANCE AWARD Interpretation Headnote 88A493 HEADNOTE OPSEU File: 88A493 OPSEU Loc.: 110 UNION (OPSEU) v. FANSHAWE COLLEGE Award dated May 4, 1989 (K.P. Swan, A.S. Merritt, J. McManus) Interpretation - Definition of "credit course" in Article 8.15(b) of the College's academic collective agreement. Whether course in Ontario Management Development Program (part of Community and Professional Education Division of the School of Continuing Education) is a credit course - certificate issued by the Province of Ontario, rather than the College. Grievance denied ' Based on a review of the particular course and program, the Board found that this was not a "credit course" R. Ross Wells BETWEEN: FANSHAWE COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF A UNION GRIEVANCE - #88A493 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman Allen S. Merritt, Employer Nominee Jon McManus, Union Nominee APPEARANCES: For the Employer: Paul S. Jarvis, Counsel Doug Busche, Personnel Officer For the Union: R. Ross Wells, Counsel Paddy Musson, President, OPSEU, Local 110 Tom Geldard Gary Fordyce, Chief Steward #5754 [15] AWARD A hearing in this matter was held in London on October 24, 1988, at which time the parties were agreed that the board of arbitration had been properly appointed, and that we had juris- diction to hear and determine the matter at issue between them. This arbitration concerns a Union Grievance dated November 18, 1987. The grievance is as follows: Local 110 grieves that the College has violated Art. 8.15b when it omitted the names of G. McKillop and J.P. Cutsey from the 8.15b lists. As a remedy the Union seeks complete lists and a declaration that the College will supply names of teachers hired as individuals or companies. The Employer's response to this grievance is dated December 16, 1987, and is in the following terms: Thank you for providing us with an additional seven days to respond to this grievance. The names of McKillop and Cutsey did not appear on the 8.15(b) list because neither of these individuals taught credit courses. We would, however, confirm that the College will continue its practice of supplying the names of teachers of credit courses, regardless of payment method. The somewhat cryptic references in the grievance and the reply to "companies" and "payment method" refers to an issue that apparently had once arisen between the parties about whether a teacher who was hired through a corporation rather than in person had to be listed. This matter has been resolved by the - 2 - above exchange of grievance and reply, and the only matter before us to be decided is whether the courses taught by the individuals who are the subject of the complaint are in fact "credit courses". This issue is important because of the requirements of clause 18.15(b). This provision, at the time of the grievance, was as follows: 8.15 (b) During the last week of September, January and May the College shall notify the Local President of all personnel covered by the Agreement hired or terminated since the last notification, together with the clas- sification, location and Division or Depart- ment concerned. At such times, the College shall also include notification of all hiring of personnel assigned to teach credit courses. Full implementation of this paragraph shall be delayed until May 1, 1987. However, as soon as practicable but not later than the first week of November 1986, the Local President shall be advised of all persons hired to teach credit courses who are commencing in the month of September 1986, their classification, hours of teaching, subjects taught and department. Martin Teplitsky remains seized if there are any difficulties in implementation. The facts on which this case is to be determined are not in dispute, but relate solely to the employment of Mr. McKillop. Mr. McKillop teaches in the Ontario Management Development Program, which is a part of the Community and Professional Education Division of the School of Continuing - 3 - Education. This program does not appear in the College's calendar at all, although the School of Continuing Education has a substantial section in the calendar which lists, among others, a number of full-time and part-time certificate courses in Business and Management. The program does appear, however, in a document entitled "Look to Learn, Winter 1988", published by the School of Continuing Education and entitled "An Advertising Supplement to the London Free Press, Friday, November 27, 1987". The program is described in that document in the following way: Ontario Management Development Program (OMDP) courses: * help meet your career goals by providing you with management training you need to run your business successfully. * assist you in starting your own small business. * offers provincial OMDP Certifi- cates, issued by the Ministry of Colleges and Universities, to recognize your achievement on completion of basic programs. Co-ordinated by the Ministry of Colleges and Universities in co-operation with Ontario's community colleges, OMDP courses are designed by business and industry professionals, including Federal Business Development Bank. Course leaders are practical, well-qualified business persons, educators or consultants who are familiar with the day-to-day problems faced as managers, supervisors and owners. The evidence indicates that courses in the OMDP program are designed by the Ministry, teaching materials are produced by the Ministry and forwarded to the College, and the College has no - 4 - role whatsoever in designing the course or preparing the mater- ials. The College hires people with relevant practical ex- perience in the community and related areas to act as instructors in the .course, and the teaching materials provide fairly com- prehensive teaching and discussion notes for the instructors, as a guide to presenting the material to the students. The presen- tation, at least in the one course for which we were provided the materials, was by way of the case study method. Through the instructor, the College monitors attendance at the program and then reports attendance to the Ministry when requested by an individual. Certificates are provided entirely at the decision of the Ministry, although they may be sent to the College for distribution to successful applicants. There are no tests, no examinations, and no formal documentation of any kind other than a weekly attendance register. None of the courses may be used for credit toward any certificate or diploma issued by the College itself. While there was some reluctance in the Employer's evidence to admit it, we are of the view that Mr. McKillop, with duties as described above, fits into the category of "hiring of personnel assigned to teach". Regardless of the use of the case study method and the absence of any formal evaluation, we think that what takes place in these course is clearly teaching, and that the relationship between the College and someone in these circumstances is clearly a hiring of personnel. It therefore becomes essential to determine whether, on all of the information - 5 - before us, the courses in the OMDP program can reasonably be called "credit courses". The Union's argument is that the courses in the OMDP program offer credit toward a "provincial OMDP certificate", which requires a total of six courses, four of which are man- datory. Therefore, in the Union's submission, the plain meaning of the words used is that these courses are credit courses, since they provide credit toward a specific certificate. In the Union's submission, it is of no relevance that the certificate is provided by an outside body, nor even that the entire course content is provided by that body. The Union argues that if the parties wished to attach a more specific meaning to the words used, they could easily have done so. In the absence of any such manifestation of a contrary intention, the Union argues that the plain meaning of the words should be adopted. The Employer argues that credit courses are not precisely defined in the collective agreement, but that there is an obvious meaning to be derived from the usage of that expres- sion in the College system in general, and in this College in particular. The Employer argues that a credit course is one that forms part of the requirements of a diploma or certificate issued by Fanshawe College to its successful students, one which will stand to the student's credit during his or her time at the College. The Employer argues that it offers a large number of non-credit courses ranging from basic recreational skills, such as swimming courses, to quite sophisticated technical courses in - 6 - various areas. For some of these courses, certification by various outside bodies is a possible outcome, but the critical issue that separates credit from non-credit courses is whether the course provides any credit toward a college certificate or diploma. The Employer also referred us to certain extrinsic documents which we review below. The College calendar includes a glossary of terms, some of which are of some interest in relation to this grievance. The following definitions may be referred to: CREDIT COURSE The grades A+, A, B, C and P constitute credit standing towards graduation in all College programs. The grade D may or may not constitute credit towards graduation in a program depending on School policy. CREDIT - INTERNAL Internal credit is credit towards a College Diploma or Certificate achieved by a regis- tered student on the basis of work completed through Fanshawe College courses. CREDIT - EXTERNAL External credit is credit granted by the College in recognition of equivalent attain- ment of the required objectives of a par- ticular College course by previous academic achievement at another institution and/or through work or related experience. GRADUATION At Fanshawe College, most full-time students and some part-time students are enrolled in a program leading to a Diploma or a Certifi- cate. Students achieve graduation by completing the specified courses which make up an approved program. - 7 - A program is an approved group of related post-secondary credit courses leading to a College Certificate, Diploma or Declaration of Academic Achievement. We were also referred to Regulation 640 under the Ministry of Colleges and Universities Act, of which the following provisions are of interest: 1. In this Regulation, (ca) "program of instruction" means a group of related courses leading to a diploma, certificate or other document awarded by the board of governors; 8. Except for programs of instruction conducted under subsection 5(5) of the Act, programs of instruction shall be approved by the Minister. 12. (1) The categories of diplomas, certificates or other documents awarded by a board of governors attesting to the atten- dance or completion of a course or program of instruction are subject to the approval of the Minister. (2) Subsection (1) does not apply to degrees, certificates or diplomas awarded under subsection 5(5) of the Act. (3) Before making a determination with respect to the categories of diplomas, certificates or other documents awarded by the board of governors, the Minister shall consider at least the academic integrity of the college system and the degree of public recognition and acceptance of the diplomas, certificates and other documents. - 8 - In our view, the OMDP courses are on the borderline between courses which are obwiously credit courses and courses which are obviously not. The calendar and "Look to Learn" both describe certain courses as either credit or non-credit but no such description has been given specifically for the OMDP courses. It is therefore necessary to try to determine on which side of the line these courses fall by reference to the resources available to us. The College calendar certainly suggests, in the context of the glossary of terms, that credit courses are only those which give credit toward a diploma or a certificate granted by the College. While the definition of "credit course" is in fact no definition at all, the defined terms which we have quoted above all lead, in our view, to the conclusion which we have just stated. While Regulation 640 is also not specifically forthcom- ing on this issue, it too seems to suggest that credit courses are as described in the Employer's submissions rather than as described by the Union. On the other hand, as the Union points out, these documents have no contractual force whatsoever, since they were not negotiated between the parties and they have not been incorporated by reference into the collective agreement. We think that the Employer's argument has, independent- ly, more to commend it than the Union's insofar as it applies to the OMDP courses. The most reasonable sense of "credit" in an academic institution is that the credit is given towards that institution's own certificates or diplomas, rather than towards recognition by some external body, even where, as here, the external body is the very Ministry which oversees the Colleges. We observe that a number of courses which are plainly non-credit can nevertheless lead to the issuance of an external certificate; perhaps the best examples are the Red Cross and Royal Life Saving Society of Canada certificates awarded for various swimming and water safety courses. In our view, such recognition by an external body is not sufficient to constitute a "credit course" for the purposes of the collective agreement. In the result, the present grievance fails. We wish to observe, however, that we do not intend this award to speak to any other course than the one specifically argued before us. Whether a course fits within the definition of "credit course" will always be a question of fact, rather than a matter of abstract principle. We therefore issue a declaration that the OMDP courses are not credit courses as that expression is used in Article 8.15(b) of the collective agreement. DATED AT TORONTO, Ontario this 4th day of May, 1989. Ke~eth P~~. Sw~rman I concur "Allen S. Merritt" Allen S. Merritt, Employer Nominee I concur "Jon McManus" Jon McManus, Union Nominee