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HomeMy WebLinkAboutUnion 89-11-20 ~ ~ ~rr~ o~ A~ A~~A~O~ /~// BETWEEN: f',/~) F~S~~ COLLEGE (the "College") - and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the ",Union") GRIEVANCE RE SESSIONAL TEACHING LOAD BOARD OF ARBITRATION: Pamela C. Picher - Chair Ross Pirrie - College Nominee Jon McManus - Union Nominee APPEARING FOR THE COl .1 JEGE: B.J. Bowlby - Counsel APPEARING FOR THE UNION: M. Ruby - Counsel Hearings in this matter were held in London on February 16 & September 19, 1988; and May 3 & 31, 1989. AWARD Through this arbitration the Union seeks a declaration that the College breached article 4.05 of the collective agreement in respect of the teaching load it assigned numerous sessional teachers in the winter term of the 1986-87 academic year. A sessional instructor is not included in the bargaining unit; instead he or she is hired under contract for a specific period of time and may be assigned a full time work load. Article 4.05 of the collective agreement provides as follows: 4.05 The parties agree that no College shall circumvent the provision of this Article by arranging for nnreasonable teaching loads on the part of persons who are excluded from or not included in the academic bargaining unit. [emphasis added] 1. SUBMISSIONS OF THE PARTIES ON THE GENERAL PRINCIPLES AND PROVISIONS OF THE COLLECTIVE AGREEMENT: The Union maintains the College assigned an unreasonable teaching load to the five sessional employees set out in the grievance: Dennis Toth, Allan Bolduc, Ruth Rogers, Lynda Monik and Elizabeth Bildfell. To define an unreasonable teaching load in contravention of article 4.05 of the agreement, the Union relies on the established maximums set out in the agreement for the total contact hours and total workload hours that may be assigned to full-time teachers in the bargaining unit. The Union submits that if these maximums are exceeded by the sessional teacher, the workload should be deemed to be unreasonable for the purposes of article 4.05 of the agreement. The College, on the other hand, acknowledges that these maximums are relevant to the assessment of a reasonable teaching load for sessional teachers but argues that exceeding the full-time maximums does not automatically constitute an unreasonable teaching load within the meaning of article 4.05 of the agreement. Counsel emphasizes that in contrast to the full-time teachers within the bargaining unit, the collective agreement does not set express limits on the hours that the College may assign sessionals teachers; instead it sets a standard of reasonableness. Counsel argues that if the parties had intended to preclude the College from assigning any more hours to sessional teachers than it can to full-time teachers, they could have expressly so provided in the collective agreement instead of utilizing the more flexible standard of reasonableness. Article 4 of the collective agreement sets maximums on both the total teaching contact hours that may be taught by a full-time teacher in the bargaining unit and the total workload hours that may be attributed and assigned to the teacher. Article 4.01(9) sets the following maximum teaching contact hours for full-time teachers: 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 (2) (b) A "teaching contact hour" is a College scheduled teaching hour assigned to the teacher by the College. [emphasis added] A teacher's total workload accounts for hours in addition to teaching contact hours, such as hours for preparation, student evaluation and administrative tasks which are attributed to the teacher as part of his or her workload on the basis of various formulae set out in the agreement. Article 4.01(2) stipulates that a total workload assigned to a full-time teacher shall not exceed 44 hours in any week. 4.01 (2) (a) Total workload assigned and attributed by the College to a teacher shall not exceed forty-four (a,4) hours in any 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 the case of teachers not in post- secondary programs. The balance of the academic year shall be reserved for complementary functions and professional development. Workload factors to be considered are: I i) teaching contact hours ii) attributed hours for preparation (iii) attributed hours for evaluation and feedback (iv) attributed hours for complementary functions [emphasis added] The Union argues that the teacher contact hours taught by the sessional teachers should be augmented in accordance with various formulae which attribute additional hours to the full-time teacher's workload. Article 4.01(4) establishes a formula for attributing hours to a teacher's total workload for preparation. The number of hours attributed varies according to such factors as whether the course is new to that teacher, whether it is one he or she has taught before but not within a given period of time or whether it is an additional section of a course already being taught by the teacher. Article 4.01(5) establishes a formula for attributing hours to a 4- teacher's workload to cover evaluation and feedback. The number of hours attributed depends on such factors as whether the evaluation involves the grading of essays or projects, whether it involves the mechanical marking of short answer tests or whether it is performed within the teaching contact hour. Article 4.01(6) speaks to the assignment of complementary functions to teachers and the ascribing of additional hours to the teacher's workload on the basis of those functions: 4.01 (6) Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher by the College. Hours for such fimctions shall be attributed on an hour for hour basis. An allowance of a minimum of five (5) hours of the forty-four (44) hour maximum weekly total workload shall be attributed as follows: 3 hours for routine out-of-class assistance to individual students 2 hours for normal administrative tasks. [emphasis added] The Union argues that for measuring the workload of the sessional employees the 5 hours referred to in article 4.01(6) for complementary functions should automatically be added to their actual contact hours in order to determine their respective workloads. The Union submits that attending faculty meetings is not part of these 5 hours. Accordingly, the Union argues, the fact that a sessional teacher is not expected to attend faculty meetings does not negate the applicability of the additional 5 hours for the sessional employees. Article 4.01 (10) sets a maximum on the amount of overtime that may be worked by a full-time teacher: 4.01 (10) (a) Notwithstanding the above, overtime worked by a teacher shall not exceed one (1) teaching contact hour in any one week or three (3) total workload hours in any one week and shall be voluntary. At the time of the grievances, however, a further transitional overtime provision was in effect: [I.ETI'ER OF UNDERSTANDING] April 7, 1986 Dear Sir: Re: Overtime For the academic year beginning September 1, 1986, and in order to facilitate the introduction of new workload provisions in the colleges, Article 4.01 (10) shall be extended such that overtime worked by a teacher on a voluntary basis shall not exceed two(2) teaching contact hours in any one week or six (6).total workload hours in any one week. All other prowsxons of Article 4.01(10) shall apply to all overtime. N.E.Williams J. Clancy Chairman President Ontario Council Ontario Public Service of Regents Employees Union [emphasis added] This provision extended for the 1986-87 academic year the permissible overtime that could be worked by the full-time teachers. It permitted two overtime contact hours a week thus increasing the total permissible contact hours to 20 for teachers in post- 6- secondary programs including nursing. It further permitted six overtime total workload hours for a total of 50 total workload hours a week. For the assessment of what is reasonable, the Union asks the Board to take judicial notice of the overtime allowed under the Employment Standards Act. In response, the College emphasizes that the Employment. Standards Act speaks to hours that are actually worked, and not attributed hours for course preparation and administrative duties unless they have been actually worked. The Board accepts the College's submission that no evidence was presented to establish how many hours were actually worked by the sessional employees in dispute. Accordingly, we accept the submission of the College that the standards established by the E.S.A. of not working more than 44 hours a week are not helpful in the instant matter to determine whether the College breached article 4.05 of the collective agreement. Accounting for permissible overtime, then the Union argues that at the very most, the maximum reasonable assignment for a sessional teacher would be 50 (44 plus 6) total workload hours in any one week or 20 (18 plus 2) contact hours for teachers in post secondary programs including nursing. In support of using the workload maximums established for full-time teachers as the measure of reasonableness for the purposes of article 4.05, the Union relies on the arbitration decision in Re Fanshawe College and OPSEU, decision of D.H. Kates dated July 22, 1988. When that case was decided the revised workload provisions establishing express workload maximums and specific formulae for attributed hours were not yet in effect. The board of arbitration, however, concluded that the College had breached article 4.05 of the agreement by assigning an unreasonable teaching load to a sessional employee because the workload assigned to the sessional employee (37-1/2 hours per week) exceeded by approximately 30 percent the average weekly workload of a full-time teacher (27.5 hours per week) who, the board was satisfied, discharged comparable duties and responsibilities to those assigned to the sessional teacher. At pp.41-42 the Board stated the following: If Ms. Fleming's [the full-time teacher's] situation as a teaching, master ~n the Colle. ge's employ reflects an appropriate standard for measuring the "reasonableness" of a teaching load then Ms. Begert's [the sessional employee's] teaching load in comparison must clearly be concluded to have been "unreasonable". In that sense the College through its arrangement with Ms. Begert as a sessional employee foisted upon her an inappropriate teaching load that was in excess of the reasonable standard of a comparable bargaining unit employee. As a result, we hold the College, as alleged, to have been in violation of Article 4.05 of the collective agreement. Counsel for the Union argues that the College had a variety of alternatives to assigning sessional teachers more hours than it would be permitted to assign to full-time teachers. He maintains, by way of example, that the persons responsible for the respective assignments could have restructured the teaching assignments for the full- time teachers that were taken over by the sessional teachers, so that the established maximums would not have been exceeded. He argues that they could have gone outside the respective departments to determine if there was another available, qualified full- time teacher to take over the load that was covered by the sessional teachers, or could have utilized two sessional teacher replacements instead of one in order to stay within the maximums. The Union further submits that even if there might be rare circumstances which would justify the College assigning a sessional teacher a workload in excess of 8- the collective agreement maximums, such circumstances do not exist in the circumstances of this case. Counsel for the College argues for a different interpretation of article 4.05 and maintains that the reasonableness of the teaching loads assigned to the respective sessional teachers involved in this grievance should not be measured with the yardstick applicable to the full-time teachers. Counsel maintains that the expectations for full- time teachers in the bargaining unit are different than for sessional employees and that, accordingly, different considerations should apply to determine the reasonableness of their respective workloads. Counsel emphasizes, for example, that the sessional teachers involved in this grievance had none of the outside, administrative duties (like attending faculty meetings or holding office hours to meet with students) that full-time teachers have. She argues on that basis that their contact hours do not, therefore, attract the same total workload hours as the contact hours for full-time teachers in the bargaining unit. While counsel for the College does not dispute that the maximums established for full-time teachers are a relevant consideration, she argues that the board of arbitration should consider as well the following additional factors: 1) the nature of the course (e.g. whether it is a repetition course for the sessional teacher and whether it is a clinical course where a person practicing in the field is required), 2) the surrounding duties, if any, in addition to the contact hours, 3) whether the College was faced with an emergency when it made the assignment, 4) whether the assignment is an ongoing one or a short-term assignment to temporarily replace a full-time teacher who will be returning to the position, 5) whether there are available, qualified full-time teachers 9- who could assume the assignment, and 6) whether there has been a negative impact on the bargaining unit. The College maintains that in the instant circumstances each assignment under review involved unique circumstances which more than justified the appointment of the sessional teachers notwithstanding that the contact hours and/or total attributed workload hours (if assessed by the standards applicable to full-time teachers) exceeded the limits permitted for full-time teachers. Counsel for the College looked to the words of the collective agreement in further support of her position that the reasonableness of the work assigned to sessional teachers should not automatically be assessed by the maximum workload hours established in the collective agreement for the full-time teachers. Counsel emphasizes that the phrase used in article 4.05 is "unreasonable teaching loads" and not unreasonable "workload". Counsel argues that under article 4 "workload" takes into account factors in addition to teaching contact hours and includes, as well, attributed hours for evaluation and feedback (article 4.01(2) and (5)), attributed hours for complementary functions for such things as routine out-of-class assistance to students and normal administrative tasks (article 4.01(2) and (6)), attributed hours for various numbers and types of preparations (article 4.01(2) and (4)) as well as attendance at faculty meetings. The College relies on the arbitration decision in Re Fanshawe College and OPSEU (union grievance #83249 re Louise Umoessien) (hereinafter referred to as "Re Umoessien~), decision of H.D. Brown dated July 12, 1984, to argue that the reasonableness of the teaching contact hours assigned to sessional employees must be 10- assessed within the context of all surrounding circumstances. In Re Umoessien, the sessional teacher was assigned to teach a specific course for a specific time period at 27 hours a week, which was 6 hours over the maximum allowed for regular teachers. The Union argued it was an unreasonable teaching load in contravention of the collective agreement. In concluding that it was not an unreasonable teaching load notwithstanding that it exceeded the maximum for regular teachers, the board of arbitration considered the following additional factors: a) that the specific course taught by the sessional teacher could not easily have been assigned to other teachers, b) that the continuity of the teacher resulting from the assignment would benefit the type of students taking the course and c) that there was no evidence to show that any member of the bargaining unit was adversely affected by the assignment. In response to the Union's assertion that the College had numerous alternatives to the disputed assignments to the sessional teachers involved in this grievance, counsel for the College observes that the burden of proof is on the Union and submits that the Union could have explored these possibilities with the chairs responsible for the assignments in dispute who were brought forward by the College to give evidence. The College argues that the Union chose not to do so in its cross- examination of some of the witnesses and, to the extent that it did with others, did not shake the evidence of the College's witnesses who testified that they were unaware of any feasible means of covering the courses in issue, apart from making the assignments they did to the sessional teachers. In addition, the College argues, the Union failed to present its own evidence of viable alternatives to the sessional appointments made by the College. - ll- Both parties referred to the arbitration decision in Re Cambrian College and OPSEU, Local 655, decision of J. Devlin dated November 16, 1987. In that case, the board held that the assignment to a sessional teacher of 49.1 total workload hours a week was not an "unreasonable teaching [load]" in breach of article 4.05 of the agreement. The board noted that in light of the April 7, 1986 Letter of Understanding respecting overtime, set out above, the total workload of 49.1 did not in fact exceed the maximums established for full-time teachers and found that that in itself would suggest that the teaching load was not an unreasonable one. The board further made some general comments respecting article 4.05. It stated that a violation of article 4.05 (i.e. the assignment of an unreasonable teaching load) was not dependent on a finding of bad faith. In addition it expressed the opinion that whether the sessional employee was content with the workload was "largely irrelevant". At p.15, the board observed: Article 4.05 was designed to preclude the College from assigning excessive or unreasonable teaching loads to non- bargaining unit employees with potentially negative impact on members of the bargaining unit. As a consequence, the reasonableness of the teaching load can not, in our view, be judged by whether the sessional employee is satisfied with the hours assigned. The board expressly noted that the question of whether the assignment of "total workload hours beyond those permitted by the collective agreement would invariably constitute an unreasonable teaching load within the meaning of article 4.05" was an issue it did not need to decide. That question is the issue which falls to this Board in the instant matter. 12- IL THE FACTS AND SUBMISSIONS ON THE SPECIFIC ALLEGED VIOLATIONS: A. THE APPOINTMENT OF MS. RUTH ROGERS: 1. In Health Sciences: a) Ms. Mary Richards, the Chair of the Health Sciences and Human Services Division in the School of Continuing Education, appointed Ms. Rogers as a sessional teacher for a 10 week period from January to March of 1987. She was assigned to cover a specific course for three hours a week. b) There were no administrative duties expected of Ms. Rogers; she was not required to attend at the College outside her actual teaching hours. She was only expected to prepare for and actually teach the course assigned. c) Ms. Richards considered that Ms. Rogers was well qualified to teach the course because she had an extensive background in the area. 2. In Office and Administrative Studies: a) In February of 1987, Ms. Sheila Lancaster, the Chair of the Office and Administrative Studies Division at the College, appointed Ms. Rogers as a sessional teacher for 9 weeks. She taught 9 hours a week, which included two sections of a Law and Security course. Ms. Rogers was also teaching a basic business course which she had taught before. b) Ms. Rogers' appointment as a sessional teacher arose rather abruptly. At approximately 2:30 on a Friday afternoon the partial load English instructor ("Mr. M.") who had been teaching a section of Law and Security announced that effective immediately he could no longer carry - 13 - on with the course. He claimed that he could not cope with the class and that the course was not as easy as he had thought it would be. c) Ms. Lancaster stated that she could not assign Mr. M's class to any of the other full-time teachers because they already had full loads. In addition, there were no full-time teachers who had previously taught the course. Ms. Lancaster testified that she could not hire an additional full- time teacher to assume Mr. M's load because there was no available complement or money in the budget. The Division was already short 1- 1/2 full-time teachers who were on secondment. The Division, however, had to hold their positions open until their return and thus could not hire a full-time teacher to fill that gap. d) Ms. Lancaster checked with the Chairs of the other departments to see if they had full-time teachers available and was advised that they were all teaching to their maximum allowable limits. e) Ms. Lancaster stated that she assigned the course to Ms. Rogers as a sessional teacher for several reasons: 1) Ms. Rogers was already teaching the other section of the course and thus would have no additional preparation, 2) she was an experienced, versatile teacher with an extensive background in psychology and sociology who, in Ms. Lancaster's assessment, was capable of taking over a troubled course and handling a group of difficult students, and 3) she had little time to search for an alternative because the loss of the original instructor was announced suddenly and was effective immediately. 14- f) Ms. Lancaster testified that the total teaching load assigned by her to Ms. Rogers was 21 contact hours. Applying the workload provisions of the agreement applicable to full-time teachers there would be an additional 19.3 attributed hours for such matters as preparation and 17 attributed hours for evaluation and feedback for a total workload of 57.3 hours per week. Ms. Lancaster testified that she did not believe it would actually amount to a workload of 57.3 hours because of Ms. Rogers' extensive background in the area. Ms. Lancaster further testified that as a sessional teacher Ms. Rogers was not expected or required to assume any administrative duties like curriculum development or choosing textbooks. She was responsible only for preparation, teaching and marking. Accordingly, she does not believe the 5 complementary hours that are normally added to a full-time teacher's load would properly be added to hers. Ms. Lancaster did not know that Ms. Rogers was also teaching a 3 hour per week course in the Health Sciences Division. 3. Submissions Re Ruth Rogers: a. The Union submits that Ms. Rogers had a total workload of 70.3 hours a week as calculated by adding attributed hours to the teaching contact hours assigned by both Ms. Lancaster and Ms. Richards. The UniOn maintains that this far exceeds the maximum 50 hours, allowed for full- time teachers and is thus unreasonable. b. The Union argues that the College failed to consider the range of options available to it before assigning the workload to Ms. Rogers. · 15- Specifically, the Union argues, the College didn't go to other departments to see if the schedules of any full-time teachers could have been altered to enable them to assume some of the workload. c. According to the College the assignment given to Ms. Rogers was in the nature of an emergency and arose out of a unique set of circumstances. As described by the College, Ms. Lancaster was caught in a very difficult situation because a partial load teaching master unexpectedly quit with no notice leaving Ms. Lancaster with 12 hours of teaching to fill in a very difficult class. d. The College emphasizes that Ms. Rogers was a particularly appropriate choice as the replacement because she was already teaching the course in question and was known to be able to handle difficult students. e. The College describes Mr. Rogers as being assigned, at the maximum, 24 contact hours (21 contact hours by Ms. Lancaster and 3 additional hours in continuing education) which is four over the limit for full-time teachers, taking into consideration allowable overtime. f. The College argues that the Union did not draw out in its cross- examination of Ms. Lancaster or present through its own evidence any different resolution of the difficult problem facing the College when the teaching master unexpectedly quit in the middle of the course. B. THE APPOINTMENTS OF MS. ELIZABETH BILDFELL AND MS. LYNDA MONIK AS CLINICAL INSTRUCTORS IN THE SCHOOL OF NURSING: 1. Ms. Bildfell: a. Ms. Bildfell was appointed by Ms. Mary Richards, the Chair of the Health Sciences and Human Services Division in the School of Continuing Education, as a sessional teacher for 3 weeks in April of 1987. She was assigned to teach the 3 week clinical consolidation portion of the post diploma critical care program for qualified registered nurses. Her assignment was 30 contact hours a week for 3 weeks. b. The post diploma critical care program is designed to prepare qualified registered nurses to work in such areas as intensive care, emergency, recovery and the trauma unit. Nurses already working in these units may also take the continuing education program to update their skills. The course is taken over a two-year period on a part-time basis, one night a week, 3 hours a night. After completing 2 years of theory, the nurses take a 3 week consolidation program in a hospital. It is the final clinical portion of the program that Ms. Bildfell was assigned to teach. c. Ms. Richards testified that to be qualified to teach the 3 week consolidation program the individual must, 1) be a graduate nurse, 2) possess post-basic preparation in nursing education, 3) have current teaching experience, and 4) be practising currently in one of a critical care areas. 17- d. The clinical instructor for the clinical portion of the basic nursing program may well be a full-time teacher in the bargaining unit. Ms. Richards testified, however, that the clinical instructor role in the post diploma program cannot be filled by a full-time teacher because the post diploma program is a specialty program and requires the enhanced skills of a nurse who is actively working in the specialized area. e. Ms. Richards further testified that the role of the clinical instructor in this post diploma course is different from the role of the clinical instructor in the clinical portion of the basic nursing program because the students in the post diploma program are already qualified nurses who have functioned as independent practitioners and thus don't need skill teaching and testing as much as general direction and guidance. Ms. Richards described the clinical instructor in the post diploma program as more of a resource person than an instructor. The students in the basic nursing program, on the other hand, are inexperienced and need more direct supervision and teaching. f. Ms. Bildfell possessed the qualifications required for the clinical instructor in the post diploma critical care program. She had a bachelor of nursing -B.s.C.N.; she had current and ongoing teaching experience because she had taught a number of the theoretical courses in the program on a part-time basis, and she had current experience in the field in that she worked in the critical care unit at Victoria Hospital. In addition, Ms. Bildfell was considered a particularly appropriate person to teach the course because she had taught the same students in the 18- classroom in the earlier portion of the same program. Ms. Richards was not aware of any full-time teacher in nursing who was qualified to teach in the program, particularly since the students and the hospital which accepted the students for their clinical program expected the clinical instructors to be currently practicing in the field. g. As indicated above, the teaching role assumed by Ms. Bildfell was not as a direct teacher of the 4 students in her group but rather as a resource person available on request to give guidance and direction. The students were further assigned to a staff nurse who was responsible for providing the direct nursing care to the patients there. Ms. Bildfell would meet with the staff nurse to whom the students had been assigned to discuss their progress. k. During the three week assignment Ms. Bildfell was not required or expected to attend faculty meetings, to do course preparation or to attend at the College. She was required to complete an evaluation on each student. Ms. Richards stated that Ms. Bildfell would have had ample time to do that within the 30 contact hours. Ms. Richards testified that she has never been advised by any clinical instructor in this course that specific preparation was done to perform the role of clinical instructor. She commented that because the clinical instructors are providing guidance rather than express teaching, their preparation is their total background and active practice in the specialized field. It is not specific preparation immediately prior to the contact hours. - 19 - 1. Ms. Richards testified that it would be difficult to split the 30 hours between two sessional teachers in order to decrease the contact hours for a single sessional teacher because there are so few people who have the qualifications to teach the consolidation program. She further stated that it would be harder for the students to relate to two clinical instructors. 2. Ms. Lynda Monik: a. Ms. Monik was given a sessional appointment by Ms. Mary Richards to be the clinical instructor for the clinical consolidation portion of the post diploma neurological nursing program. This program is given to qualified registered nurses on a part-time basis. They take theory classes once a week, three hours at a time, for 2 years. The clinical consolidation portion of the program follows the theoretical instruction. It is for 4 weeks, 40 hours a week. b. The role of the clinical instructor is as a resource person, to provide guidance and direction to students at their request. Ms. Monik had 11 students. c. Ms. Monik was not required or expected to attend faculty meetings, to attend at the College, to do course preparation or to do anything outside or in addition to the 40 hours assigned. She was required to do evaluations for the students but it was expected that this would be done within the 40 hours. 20- d. To be qualified to teach the clinical consolidation program the person must, 1) be a registered nurse licenced by the College of Nurses, 2) have post basic preparation in nursing education such as a B.S.C.N., and 3) have current and ongoing experience in neuroscience nursing. e. Ms. Monik met these qualifications. She had a B.S.C.N.; she was a masters student and she was a team leader in the Neuro Unit at University Hospital. f. Ms. Richards was unaware, of any full-time teacher who met these qualifications particularly since both the Hospital and the students expected the clinical instructor to be actively practicing in the field. g. Ms. Richards testified that it would not have been feasible to split the 40 hour a week 4 week program between two full-time clinical instructors because she was not aware of another available qualified instructor. Moreover, she stated that it was a short, intense program that was not appropriate for. a full-time assignment to a full-time teacher in the bargaining unit. 3. SUBMISSIONS RE MS. BILDFELL AND MS. MONIK: The Union maintains that the short duration of the teaching assignment for Ms. Bildfell and Ms. Monik is irrelevant because the maximums set out in the collective - 21 - agreement clearly apply to the School of Nursing and any individual week of teaching within that school. The Union argues that with 40 contact hours for Ms. Monik and 30 for Ms. Bildfell, the teaching assignments were well in excess of what is permitted for full-time teachers in the bargaining unit. The Union maintains that when pressed in cross-examination Ms. Richards conceded that she didn't actually know if Ms. Monique or Ms. Bildfell had done any preparatory work outside the 40 contact hours. Counsel further argues that since Ms. Richards testified that there were approximately 12 people in the community who would be qualified to teach the course, there were other ways, consistent with the maximums in the collective agreement, to offer the consolidation portion of the course. The Union argues that to comply with the collective agreement the College could have used two sessional teachers. To assign that workload to one teacher, which could not be done for a full time teacher in the bargaining unit because it would exceed the maximums is, the Union argues, unreasonable within the meaning of article 4.05 of the agreement. The College argues that the appointments of Ms. Bildfell and Ms. Monik as sessional teachers was virtually the only feasible approach because to be qualified the instructors were required to have current experience in the area. Counsel for the College stressed that the full-time teachers in the bargaining unit did not have the required current experience and thus were not qualified to teach the clinical consolidation portion of the program. Counsel for the College further argues that Ms. Richards' evidence established that it was inappropriate to split the clinical instruction between two teachers. Counsel emphasized that the Union presented no evidence to establish any other workable arrangement for teaching of the clinical portion of the program and did not draw such an alternative from Ms. Richards on cross-examination. 22- The College acknowledges that the teaching loads assigned to Ms. Bildfell (30 hours a week for three weeks) and Ms. Monik (40 hours a week for 4 weeks) were in excess of the maximums. Counsel argues, however, that they were not unreasonable because there was no preparation involved, because the instructors act as resource persons for the students who are already quite advanced in their skills, because student evaluations could be done within the clinical hours and because they were not required to attend at the College for any administrative or extra duties as would be required for full-time teachers in the bargaining unit. C. THE APPOINTMENT OF MIL ALLAN BOLDUC AND MR. DENNIS TOTH: 1. Mr. Bolduc: a. Mr. Nicholas Prokos, the chair of the Electrical/Electronics Division of the College, appointed Mr. Bolduc as a sessional teacher from March 9th to March 27th of 1987. The records are somewhat unclear as to whether Mr. Bolduc was assigned 18 or 21 contact hours. Accordingly, we assume for the purposes of this arbitration that he was assigned 21 contact hours. b. Mr. Prokos testified that he assigned the work in question to a sessional teacher instead of a full-time teacher because the department was low on its complement of active full-time teachers. One was on sabbatical and two were on secondments to other areas of the College. No active full- time teacher in the department was thus available. Mr. Prokos further testified that it was not feasible to hire a full-time teaching master. The three full-time positions were only temporarily vacant and had to be - 23 - protected for the teachers who were away. The two secondments occurred on short notice which, according to Mr. Prokos, would make it more difficult to cover the work from those positions with full-time teachers from some other area of the College. Mr. Prokos thus filled the temporary shortage of full-time teachers by a combination of sessional, part-time and partial load appointments. He further testified that some overtime, within the limits of the collective agreement, had already been assigned to full-time teachers. c. Mr. Prokos testified that Mr. Bolduc was not required to attend faculty meetings Or assume any administrative duties that are normally performed by full-time teachers. Mr. Prokos further stated that Mr. Bolduc had already taught most of the courses involved. Sometimes he was assigned as a partial load teacher and sometimes, i.e. during the period in dispute, he was assigned as a sessional teacher working a full load. 2. Mr. Toth: a. Mr. John Roberts is the Chair of the Civil/Technical Architectural Division of the College. He appointed Mr. Toth as a sessional teacher from January 5 to January 30 of 1987. b. Mr. Toth was originally expected to be a partial load appointment, not a sessional teacher working a full-time load. In late December of 1986, however, one of the full-time teachers in the bargaining unit, ("Dr. M."), was required to go into the hospital for approximately one month. Mr. Roberts appointed Mr. Toth to cover some of Dr. M.'s courses for that - 24 - short period of time which increased his total contact hours to 19 and transformed his appointment into a sessional one. c. For two of Dr. M's courses, Dr. M. was the only person with the required expertise. Accordingly, Mr. Roberts increased Dr. M.'s weekly classroom hours once he came back from the hospital in February so that he could give those two full courses in a compressed period of time. d. Mr. Roberts assigned the eight weekly hours involved in the remainder of Dr. M.'s schedule. Mr. Roberts testified that there was no full-time teacher in his department who was available to take over these courses. He stated that it was not feasible to replace Dr. M. with the appointment of a full-time teacher when the absence was for such a short period of time. Mr. Roberts acknowledged that he did not check with other departments to determine whether a full-time teacher could teach the eight hours in question but assumed there would not be anyone able to cover that many hours on such short notice. e. Mr. Roberts testified that Mr. Toth was not expected to go to faculty meetings, to become involved in curriculum development or to assume any incidental duties expected of full-time teachers. f. Mr. Roberts testified that Mr. Toth was particularly suited to teaching the assigned course because he had taken it himself and was thus familiar with the contents. Mr. Roberts stated that it was a basic first year technology course and thus was not too difficult. 3. SUBMISSIONS RE MR. BOLDUC AND MR. TOTH: a. The Union concedes that if allowance is made for permissible overtime then Mr. Toth and Mr. Bolduc were as'signed total workloads within the maximums allowed for full-time teachers in the bargaining unit. Looking to the contact hours standing on their own, Mr. Bolduc worked one in excess of the maximums and Mr. Toth worked with the max/mums. The Union maintains, however, that notwithstanding teaching assignments that were within or nearly within all the maximums, there were insufficient circumstances to justify the appointment of sessional teachers. IH. DECISION: A. RE GENERAL PRINCIPLES: The Board is readily satisfied that the determination of whether a sessional instructor is assigned an unreasonable teaching load in contravention of article 4.05 of the collective agreement cannot be determined through an automatic application of the workload maximums applicable to the full-time teachers in the bargaining unit. The focus of article 4.05 is "unreasonable teaching load", not "unreasonable total workload". Under article 4 of the agreement, a distinction is drawn between an instructor's teaching load, which is referred to, in part, as "teaching contact hours" and would also involve time spent for preparation and feedback, and "total workload" which includes teaching contact hours, attributed hours for preparation and evaluation and then further includes attributed hours for complementary functions and administrative duties, which may not be done at all by sessional teachers. The hours attributed to full-time teachers - 26 - for preparation time, student evaluations, administrative duties and complementary functions are established by various formulae in the collective agreement for members of the bargaining unit but may not be an accurate reflection of the actual work performed by sessional teachers who are not in the bargaining unit. If the parties had intended the same maximums set for full-time teachers in the bargaining unit to apply automatically to the loads assigned to sessional teachers they could have readily said so in the collective agreement. By employing the more general standard of reasonableness instead of fixed maximums, however, the Board concludes that the parties intended the College to have a measure of flexibility with its appointment of sessional teachers. We conclude that the parties intended that the definition of a reasonable teaching load would vary with the circumstances of each appointment. Without in any way attempting to be exhaustive we find that factors relevant to the assessment of a reasonable teaching load for sessional instructors would include, 1) the number of contact teaching hours, 2) the amount of preparation required, 3) the amount and kind of evaluation and feedback involved, 4) the extent of administrative duties if any, 5) whether the teaching loads exceed the maximums established for full-time teachers including allowances for permissible overtime, 6) the reason for the sessional appointment, e.g. whether it was an unforseen emergency, whether there was a practical alternative, whether the person involved was particularly suited to the assignment, 7) the nature of the appointment, e.g. whether it could readily be covered by full-time instructors, whether it was long term or short term etc. and 8) the availability of full-time instructors to cover the load instead. 27- B. RE RUTH ROGERS: Ms. Rogers was assigned a total of 24 teaching contact hours, 6 more than the maximum allowed under the agreement. Accounting for the 2 additional teaching contact hours permitted by way of overtime, she taught 4 teaching contact hours over the maximums. The range of circumstances surrounding Ms. Rogers' teaching assignment satisfies the Board that it did not constitute a unreasonable teaching load within the meaning of article 4.05 of the agreement. The College was faced with the sudden loss of an instructor and needed to appoint a replacement teacher within a matter of days to avoid the interruption of a course. There were no available full-time instructors in the Department to assume the load. Although the contact hours were 4 in excess of the maximum contact hours permitted for full-time teachers, the excess is not extreme and is tempered by several factors: Ms. Rogers was already teaching a section of Law and Security and thus required no additional preparation; she was not required to do work in addition to the hands-on teaching and evaluation that would normally be expected of a full-time teacher, and, in addition, she had demonstrated an ability to handle difficult students. Moreover, the Union did not establish in evidence any workable alternative that the College could have employed. Having regard to all of the circumstances surrounding Ms. Rogers' appointment as a sessional teacher in the winter of 1987, the Board concludes that the College did not act in violation of article 4.05 of the collective agreement and did not assign Ms. Rogers an unreasonable teaching load. - 28 - C. DECISION RE MS. ELIZABETH BILDFELL AND MS. LYNDA MONIK: Ms. Bildfell and Ms. Monik were each appointed as sessional teachers for a short period of time in the spring of 1987 to work as clinical instructors in the clinical consolidation portion of post diploma programs in continuing education. During these clinical consolidation programs Ms. Bildfell and Ms. Monik worked in excess of the maximum weekly contact hours permitted for full-time teachers. Ms. Bildfell worked 30 contact hours a week (10 more than permitted for full-time teachers including allowable overtime during that period) and Ms. Monik worked 40 contact hours (20 more than permitted). Having carefully reviewed the circumstances of these appointments, however, the Board is satisfied that the assignments do not constitute unreasonable teaching loads in contravention of article 4.05 of the agreement. Given the degree of specialization in each of the clinical consolidation programs and the needs and requirements of the students and hospitals involved in the program, the clinical instructors were required to have current and ongoing experience in their respective fields of nursing. None of the full-time teachers met this qualification. Accordingly, the College could not assign the work to full-time teachers in the bargaining unit. In addition, the Union presented no evidence, either through its own witnesses or in cross-examination of the College's witnesses, which would establish a practical alternative available to the College at the time of these appointments. Although the contact hours were heavily concentrated and in excess of the maximums, the weight of the assigmnent was modified by several factors: first, the clinical instructors were more in the nature of resource persons responding to questions - 29 - from the students than direct supervisors or active teachers. Second, the evidence satisfies the Board that little or no preparation was involved in the assignments. No preparation was expected of the clinical instructor and there is absolutely no evidence to suggest that any preparation in fact occurred. In addition, given the nature of the duties of the clinical instructor as a resource person rather than the teacher of skills, the probabilities are that no preparation in fact took place and certainly none that could not have been done within the contact hours. Third, the student evaluations could be carried out within the contact hours. Fourth, there were no additional administrative duties expected of the clinical instructors such as those normally required of full-time instructors. In these circumstances and unlike the situation for full-time teachers in the bargaining unit, the contact hours assigned to Ms. Bildfell and Ms. Monik would accurately reflect their full load and would not accurately be augmented by further attributed hours for preparation, evaluation and administrative duties as would be the case for full-time teachers in the bargaining unit. Accordingly, the 30 and 40 contact hours assigned respectively to Ms. Bildfell and Ms. Monik as sessional instructors is less onerous than would normally be the case if 30 or 40 contact hours were assigned to a full-time member of the bargaining unit. Moreover, the period of the assignments was for only a matter of weeks; it was not an ongoing or long-term arrangement. In all of the circumstances, the Board concludes that the teaching loads assigned to Ms. Bildfell and Ms. Monik in the spring of 1987 were not unreasonable within the meaning of article 4.05 of the collective agreement. - 30 - D. DECISION RE MR. BOLDUC: For approximately 3 weeks in March of 1987, Mr. Bolduc was assigned 21 contact hours, 1 in excess of the maximum number allowed full-time teachers taking into account the permissible overtime operative at that time. During other periods of his appointment as a sessional teacher he was within the maximums allowed for full-time teachers. The Board is readily satisfied that the assignment of 1 contact hour in excess of the allowable maximums for full-time teachers does not constitute an unreasonable teaching load in contravention of article 4.05 of the collective agreement. Mr. Bolduc was familiar with the course in question and he was not required to attend faculty meetings or assume any of the administrative duties normally performed by full-time teachers. Accordingly, some additional hours that would be attributed to full-time teachers working 21 contact hours would not accurately be attributed to him. Moreover, the evidence establishes that no full-time teacher in the department was available to work the hours and there was no available complement for hiring an additional full-time teacher. E. DECISION RE MR. TOTH: Mr. Toth's assignment of 19 contact hours does not exceed the maximums for full-time teachers when allowance is made for the permissible levels of overtime which were operative at the relevant time. Moreover, Mr. Toth's appointment was for a short period of time. It covered the one month period when a full-time instructor was required to be in hospital. This is precisely the kind of problem that a sessional appointment is well suited to remedy. -31 - The evidence readily satisfies the Board that the teaching load assigned to Mr. Toth was not unreasonable and was not in contravention of article 4.05 of the collective agreement. For the reasons set out above, the Board concludes that the teaching loads assigned to Ms. Rogers, Ms. Bildfell, Ms. Monik, Mr. Bolduc and Mr. Toth at the time relevant to the grievance were not unreasonable and, accordingly, were not in contravention of article 4.05 of the collective agreement. Accordingly, the grievance is hereby dismissed. DATED at Toronto this 20th day of Nove~ 19~89. Q~ ~ I CONCUR "ROSS PIRRIE" COLLEGE NOMINEE I DISSENT (ATTACHED) "JON MCMANUS" UNION NOMINEE -32 - DISSENT OF UNION NOMINEE The majority of this Board has interpreted the collective agreement, and drawn conclusions from the facts before it, in a manner with which I cannot agree. First of all, the Union presented evidence before us from Ms. Musson that the maximum teaching loads set out in Article 4.05 represented what was pedagogically sound. This means, to me, that the workload limits are there for the students as well as the teachers. The time a teacher puts into preparation, answering students' questions outside class, and grading all contribute to the quality of the teaching product. Keeping this in mind, it can't be forgotten that a sessional teacher is a full-time teacher. This is acknowledged in Appendix 3, Article l(a). The students are entitled to the same quality and care in teaching performance, evaluation, and outside class access from a sessional load teacher as they are from any other full-time teacher. That, unfortunately, is not what follows from the majority decision of this Board. In my view, this Board has ignored the parties' own formula to define what is reasonable. Rather than accepting what is already a detailed and scientific formula as to reasonable teaching loads, this Board has created its own definition of reasonable which contains so many exceptions as to make the original restriction nearly meaningless. These exceptions are not found in Article 4.05 which speak of "circumventing the provision (sic) of this article". I find it hard to believe that the parties could ever have reasonably contemplated that there be as many exceptions to the rule as the majority has found. There are so many exceptions, in fact, that they remove the incentive for the College to observe Article 4.05. The majority's award puts the Union in a "heads I win, tails you lose" position. How could the Union possibly anticipate all possible exceptions to the rule when it finds that the maximums under 4.05 have been exceeded? It places a nearly impossible evidentiary onus on the Union. We saw in this case that it was necessary for the Union to subpoena S.W.F. forms which provided some clues as to why the sessionals were used in the first place. College counsel used up two days of the Board's time raising arguments as to why the Union should not have access to these documents. This resulted in further adjournments. If the Union has this much difficulty obtaining such basic information, I fail to see how they can marshall the evidence necessary to refute all the possible excuses the majority award creates for the College. One can expect Union counsel to increase the use of subpoenas after this award. In respect of S.W.F. forms, I would have thought it telling that the College itself prepared forms for Ms. Rodgers, Mr. Bolduc, and Mr. Toth wherein they applied the Article 4 formula. Why would they have done such a thing if they did not consider that formula to be applicable to sessionals? I cannot accept the restrictive and technical interpretation placed on Article 4. 05 by the majority. In particular, the distinction between "unreasonable teaching load", and "unreasonable total workload", is to my mind too technical and ignores the prohibition in the Article that the provisions of all of Article 4 should not be circumvented. The words "teaching loads" should be defined in context and refer to the entire Article. Even if the collective agreement, on a reasonable reading, permits the College to assign teaching loads which go beyond the maximums assigned to other full-time teachers, in my view they have, on the facts, failed to act reasonably. Ms. Rodgers' case is a good example. How can it be said that the College was assigning a reasonable teaching load to Ms. Rodgers when members of the. two departments in which she was assigned contact hours were not even aware that she was being assigned contact hours with the other department. There was no evidence of compelling circumstances which indicated that Ms. Rodgers should be given the coupe in the School of Continuing Education. The fact is that, at the time, there was no thought whatsoever put into why Ms. Rodgers was given 24 teaching contact hours, which converts to over 70 hours of workload using the formula in Article 4.05. This, in my view, was an unreasonable teaching load and the College should not be able to advance its ignorance as a justification for such overloading. Similarly, Ms. Richards, who testified in respect of Ms. Bildfell and Ms. Monik, conceded that she didn't actually know if those two employees did any preparatory work outside the 30 and 40 contact hours for each employee respectively. The Union has presented the Board with two cases which go far beyond the maximums set out in the collective agreement and we are asked, on the basis of evidence from a witness who admits to not knowing the facts, to accept that little or no preparation was involved in the assignments. In my view, this Board erred in making that conclusion for itself when the witness called could not provide an answer. For all of these reasons, I would have allowed the grievances. November 20, 1989 Jon McManus