HomeMy WebLinkAboutUnion 95-05-02 BETWEEN-
., ONTARIO COUNCIL OF REGENTS FOR COI-!.~GES OF APPLIED ARTS AND
TECHNO~Y IN THE FORM OF FANSHAWE COLLEGE
~ (hcrcina~r ca]lcd thc "College~)
ONTARIO PUBLIC SERVICE F_.MP~~ UNION
(FOR ACADF.,bflC EMPLOYEF~)
· - Cnereinnfter cared the "Union") '
UNION POLICY GRIEVANCE DATED May 26, 1992
BOARD OF ARBITRATION: Richard H. M~aren, C. Arb.
Sherril Murray, Union Nomim~
. David Ouptill, College Nominee
- COUNSi~-I. FOR THE COLLEGE: Bob Atkin-~ou
COUNSEL FOR THE UNION: Scott Watson
A HEARLNG IN RELATION TO THIS MATTER WAS HELD AT LONDON, ONTARIO, ON
MAY 16, 18 AND 30, AND JUNE 29, 1994. WRITTEN ARGUMENT WAS COMPLETED
_
ON SEPTEMB~ 23, 1994. EXECUTIVE SESSION BY CONFERENCE TELEPHONE
CALL APPd]_, 23, 1995.
A W..A R D
This mauer involves a Union Policy Grievance in connection with the Nursing
Assistant Program {hereafter the NA Program) offered by the College through the Health
Technology Division of its School of Health Sciences and Human Services. The grievance
alleges that the College violated:
Articles 7, 8 and Appendix 2, et al of the Collective
Agreement when they failed to give preference to
the designation of full time positions as reg-lar
rather th~. partial load teaching positions in the
Nursing Assistant Program.
As remedy we seek that the College immediately
designates six additional full time regular teaching
positions in th~ Nursing Assistant Program. (Exhibit 1)
The thrust of the gri~vamc as presented in evidence and argued by the Union focu~ upon thc
clinical portion of the program {Course Number HI262}. The grievance covets the time frame
from the Fall of 1990 in September until the Summer of 1992 in May. The number of positions
alleged not to have been designated as regular rather than partial load was changed to five from
the six in the grievanee.
In the first year of the grievance 6me frame the NA Program was in transition.
Prior to the 1990 - 1991 academic year it had been operated by the Ontario Government as a
Regional School in London, Ontario. The College took over the program from the Regional
School and has been operating it since that time. Thus. the academic year 1990 - 1991 was a
transition period in which the predecessor program was being completed with students graduating
from it; and, the NA Program operated by the College commencing.
The NA Program is 36 weeks in length. A student may commence the program
in September and graduate the following June; or, in January and graduate the succeeding
December. The September, 1990 intake was the last compk~t¢ intake under the curriculum of
the Regional School. The two intakes run simultaneously, with the January intake being
s~spended over the summer vacatioa. Upon commencing its NA Program in January of 1991
the College introduced a tlu'ee term curriculum to replace the previous four term system of the
_ Regional School,
The College's three term Prog~m involved an initial terra of 15 weeks including
both classroom study and clinical experience. A second term of 15 weeks involved 22 hours in
a clinical setting, 2 hours in the lab, and 6 hours of theory. The final term was 6 weeks of 30
hou~ per week of clinical experience. It is the 22 lmurs of clinical setting in the second term
which the griev~ce focuses upon.
Exhibit 11 is a document prepared by the College with which the Union is in
subst:~nrjal agreement. It is in chart form and sets out the courses, students and faculty for the
period from 1990 - 1991 through 1993 - 1994. The enrollment information from that document
is set out b~low:
INTAKE NUM~RRS TOTAL
-- TERb{ ! 2_ ! 4_ ATTRITION
September, 1990 70 70 63 60 I0
January, 1991 70 47 47 23
September, 1991. 69 66 61 08
. January, 1992 68 49 43 25
September, 1992 70 50 49 21
January, 1993 70 ~.7 39 ~ :.
September, 1993 51 37
-3-
This table reveals that intake was reasonably stable until the College's decision to reduce it for
the program beginning in September of 1993. Thus, enrolmcnt was predictable but the attrition
rate was less so, particularly in the time frame of the grievance.
The staffing of the windout of the Regional School program in September of 1990
to the January iOrsk¢ involved a combination of full rime ~ partial load positions accordin~ to
Exhibit 11 and the testimony of Dean Kirkby. That pattern confi_nued through to the graduation
of the last of the Regional School students in 1tree of 1991. l:-mployee~qn~eegulnr full-time
,posifiant ~enti~elyUstaITed',the, inaugural ~me~tetcof- ~e"NA', P~. The second term was
'veom im o .or; , oad po i o. '
, 'we~-O'~ly'~t~z~_ tnthe, cliai~ ~'rtiO~'6f~~l~"~;~ -The third-term-of th~ NAPmgr~m wa.~
The pattern of partial load positions was as follows:
'~me Total Partial Load.Deal. '~nation (Both Intakes)
Sept 9 - Nov. 30190 8 Partial Load
Oct. 8 - Feb. 819! 14 Partial Load
Jan. - April 19/91 11 Partial Load
April 22 - lane 14191 t2 Partial tx~ad
Sept. - Dec./91 7 Partial Load
Jan. - April/92 ! ! Partial Load
Grievance Filed
May - Itme/92 0 Partial Loads (9 fulltime Nursing Program Teachers
brought owr from Nursing Program)
Sept./92 - Dec./92 8 Partial Load
Nov./92 - Dec./02 6 Partial Load
Jan. - April/93 6 Partial Load.
0~/17/99 ~1:~0 FAX 41~ 499 1141 SI{ERRIL ~-URRA¥ ~06
The clinical experience for the NA Program was carried out at thxee different
health care facilities in London: Victoria Hospital, Park-wood Hospital and Marian Villa.
Students are divid~ into groups of 9 or 10, with each group assigned to a particular unit within
_ one of the particular health care institutions. At least two faculty members would supervise thc
clinical experience. In part, thin is caused by the fact that the College can only assign up to 18
teaching contact hours per week to a regular full-rime professor according to the terms of the
.. Collective Agreement. On occasion more faculty members were used, The attrition rote in the
NA Program also has an effect on the staffing of the clinical teaching in second terra.
Exhibit # 21 provides an illustration of how thc staffmg worked in practice. In
Term 2 in the Winter of 1992 student numbers dictated that there be 7 clinical groups, each one
taught by two professors. One professor would teach Monday and Tuesday 6 hours each for a
· - total of 12; the otber would teach 4 hours on Wednesday and 6 on Thu~:lay for a total of 10.
Three regular full-time professors were utilized, and they had additional teaching hours in the
Program. Eleven partial load professors who taught exclusively in the second term cli_rdeai
program filled the balance of the slots in the staffing pattern. Thc pattern attempted to achieve
a goal of two professors per clinical group, each working approximately equal hours on two
consecutive days per week with no other clinical teaching assignments.
Aside from the actual staffing pattern that was used, the Union offered its own
model of how the staffing could be achieved in a fashion designed to maximize the use of
regular full-time positions (Exhibit//13). It used the actual enrolment but divided it into only
five sections of students. It also followed the pattern of only two professors teaching each
05/17/99 21:50 FAX 416 499 1141 SHERRIL MI.TRRAY ~]07
-5-
section. The difference was that the pattern of one person teaching Monday/Tuesday and the'
other teaching the group Wednesday/Thursday was broken into different configurations.
Dean Kirkby describes thc rationale of the College configuration and in so doing
provides a critique of the model proposed by the Union. Thc configuration of two different
professors teaching on two consecutive days, or what was called in evidence the "2 and 2"
staff.Lng pattern, allegedly enables the student to develop a rapport equally with both professors,
It was her opinion that thi.~ was the be.st learning environmcm for the students. AccomplishinE
thi.~ goal necessitated the use of partial load professors. The Union model permitted some
clinical groups to be taught on the 2 and 2 approach but others would have a 3 and 1
arrangement, which was also not necessarily consecutive.
The arguments of counsel am merely summarised here as they were expressed in
extensive written briefs.
Thc Union submissions arc directed at seeking a declaration that there has been
a breach of Appendix II, paragraph 6 by thc College failing to give preference to thc designation
of five full-time positions.
Appendix II, paragraph 6 of the Collective Agreement provides:
The College will give preference to the designation of full-time
positions as regular rather than pa~ial-load teaching positions
subject to such operational requirements as the quality of the
programs, attainment of the program objectives, the need for
special qualifications and the market acceptability of thc progr,~m.~
m employers, students and the community..
05/17/99 21:50 FAX 416 499 1141 SHERRIL MURRAY ~05
The College is obligated to "give preference" to the designation of Mil-time
positions as regular. That obligation is subject to operational requirements. Tl~'~~
on~to~i,~,nm'illus~tiam ~eries, of,examples.whiah is not exhaustive, or ."all-encompassing ~.,-as
_ was-,found,co-be~the interpretation in :Humber College in a unanimous~deeision ~y:a.Board of'
-Arbitmtimrx:halrelt 'by AvbitratorHt~we-dated 'fitbrll-t2 ;-~t994'. L,T: ~,'~. p,.w. yiso,is in effect a rel~
~ re, ilar.' It could operate as such in ~hi_~ case if the College can establish that there are
operational reasons for staff'mg the NA Program in a certain way which involves the use of
partial load positions. The issues that must be decidexl are two foId:
1. are there full-time positions; and
2. regardless, are there operational reasons for the existing staff'mg
pattern?
- These issues may be dealt with seria6m. It is logical to commence with the frill-time issue as
there is no obligation if there are no positions which are full-time. In effect it is a threshold
factual issue. However, regardless of the presence of such positions there can be a release from
the obligation for operational requirements. Both issues also raise the collateral issues of burden
of proof arid the shifting onus. The second issue also raises the collateral issue of the standard
-- of arbitral review of the College's rationale as to operational requirements.
At stake between the parties on these issues is efficiency and cost from the
-- College persImctive and job protection of full-time employees from the Union perspective.
These can be irreconcilable perspectives in this case. The issue in the case then becomes one
of precisely what is the College contractually bound to do in the circumstances.
7
L Are fl~¢r~ fuH-rirne po;if~on~?
The evidcncc clearly establishes that there was an cxtensive use of partial load
personnel. The College submits that the lust year of the time frame ought not to be counted
because thc NA Program was in transition from thc Regional School to the College. It further
submined that the remaining period of one acadcmic year, 1991-1992, is an insufficient period
in which to make a determination under Appendix II.
Teaching assignments arc done primarily on an academic year planning cycle.
Article 4.01(2)(a) establishes a work load for an academic year. An academic year provides the
basis for the entire work load eqm, lisation process of Article 4 and its concomitant SWF's.~t'
would, in such circumstances, be logical and appropriate to interpret Appendix H as implicitly
having such a fi_me frame as well. It is so found in rhi.~ award. Thc Humber decision, supra
used a period of one and a half years. Although the time framc issue dccidcd hcrc did not need
to be decided in that case.
The Coltcgc's submission concerning discounting the first year in the application
of the Appendix must bc done within thc concept of operational requirements and not as being
some time frame that coutd not be examined by the Board. Therefore, thc Board finds that a
two year time frame to examine the contractual obligation is an acceptable one in thc
circumstances of this case. The Board has data for a four year period which enables it to put
thc gricvance in perspective. However, the obligation of the Appendix does not need to be
spread over this time frame. The Union has restricted the grievance to a two year period. It
ia found that this is both acceptable and appropriate given this Board's interpretation of the
Appendix and its applicable time frame.
Exhibit 11 reveals that full-time nursing program teachers were brought over from
thc Nursing Program to staff the clinical period in Ma}, & June of 1992. This was done because
the parties had entered into a local No Iayoff Agreement, Exhibit//20. The Board f'mds that
_ the partial load posifiorls, as set out at page 3, could have been designated as regular despite the
fact that the two 15 week terms only total 30 wee. ks of a work load which has a contract ceiling
of up to 36 weeks. The employees could have dore other work wjthln the Health Technology
.. Division as was done with Nursing Program teachers who came over to the NA Program in May
to Jtule of 1992. Conti_n-ing Education was not the exclusive option the College had in
assigning furtimr teaching to persons filling thes~ positions. Therefore, it is found that there
- were full-time positions for which the College could have given preference as being regular.
05/17/99 21:50 FAX 416 499 1141 SHERRIL MURRAY ~11
-9-
On the facts here there is no issue that full-time NA Program teachers are less
qualified to teach courses offered by the partial load designates. Thus,
atte .m.p.'.tjng~.to:,j....utgify ~i~s conduct on the basis of ".spc~..i~ .q.,,u~.li.fic~..u.'.o.n~.'i: a factor listed in
Appendix Il. There are no apparent program or pedagogical reasons established in evidence for
using partial load personnel.
.exhaustiv.c..a~,..~2~_..c.._~. ,~ ,bo, ~.d~e. ~ .zmi~..~.m. be.~ther~[actors which a~e operaLiono_! requirements
~...._a,.,l~p.~.p._ .~jale..cascs. .:. The College's rationale for its staiTmg pauem was put in evidence ~hrough
thc testimony of Dean Kirkby. In summary she testified that the "2 and 2" approach was the
best available way to ma~imiTe thc quality of thc clinical prograxll ~ the academic experieace
of the smdems. Such a staffing pauem required the use of a combination of existing regular
full-time positions and partial load positions in order to work. Such evidence is either within
the enumerated phrase of Appendix [I, being ~quality of the program$~; or, it is one of the
considerations beyond the non-exhaustive list of operational requirements found in Appendix II.
The Union submits that the College docs not meet its quality objectives through
the usc of partial load professors. Thc Union instead argues that the quality of progrsms is
better served by fu[I-6me faculty. It cites some of the activities performed by full-time faculty
that enhance program quality as: cumculum development to me. ct provincial standards; delivery
of and assisting the student to transfer nursing theory and acquired skills from the classroom to
clinical practice; conducting tutorials and being accessible to students who need remedial
assistance ff~roughout the teaching weeks of the college school year: participaling iv. divisio~a!
and other meetings within the college as required. ~c pa~,icipatm~ .~' ,-, ~=,.., ~
05/17/99 21:50 FA~ 416 499 1141 SHERRIL MI_~?~AY ~12
development, The other evidence thc Union provides relates to its various scheduling models.
Most of that is used to prove the College treated thc Appendix as discretionary and did not mm
its mimi to thc mandatory nature of thc Appendix until the memo from Ms. Kirkby in 1992.
That memo responded to models put forward by thc Union when a No I~y Off situation arose.
All of the foregoing rais~ the issue of the standard of arbitral review of fl~e
._ College rationale. It is the submission of the College that if the Board is satisfied that the
rationale is bona fide, the Board should defer to thc expertise of the College and its
represenlatives. It is submitted that the Board ought to refrain from assessing the relative merits
of the College's s~afl'mg pattern and the variou~ alternative schedules advanced by [he Union.
In essence this me~n-~ that a Board of Arbitration should not decide that members of
management, for example Dean Kirkby ill this case, wer~ wrong in their assessments of the
- operation~! requirements unless them is clear and compelling evidence to show that the College
has not given appropriate consideration to its contractual obligation of operational requirements.
On the facts in this matter there is no such clear and compelling evidence that
management had not given conside~-ation to its contractual obligations as to the operational
requirements. Indeed, the memo of May 20th, 1992 by Dean Kirkby, six days before the
grievance giving rise to these proceedings states:
The current pattern provides the following opportunities:
_ 1. promotion of sound academic experience for students;
2. consistency in clinical scheduling for students and teachers;
3. flexibility in responding to attrition in the program: and
· - 4. effective utilization of full-time complement
05/17/99 21:50 FAX 416 499 1141 SHERRIL IIIIRRAY ~13
-Il-
Both sides put forward some compelling arg~ments as to the merits of their'
scheduling patterns in connection with program quality being an operational requirement.
However, the Union's proposal lowers the amount of student groups to five from seven thereby
changing the stud0nt faculty ratios, An important item in a learning environment which is
practically oriented. Further, the Union proposal creates unequal scheduling patterns for
students which may or may not have an effect on the learning environment. The 2 and 2
schedule has th~ flllldamental strengths set out in Dean Kirkby's memo which this Board
concludes that the nnlon models cannot match. In contrast the strengths ia the Union's model
can be met through prol:n:r management of the current staff, i.e. professional training, helping
to I~mslate classroom learnln~, etc.
~~tl~I~;~l~ncludc -.gla. F-g~..,C.91!~gc :bad~lg.v.c~ .app~,.T~_ ~ido _ralion
th~ t:'lmical progiiun it can not be said that the management method was wrong in their
,',assessment of operational t~quir~nis or failed to do an assessment. It was merely different
than what the Union might have done were it required to make the same assessments. That does
not make the College assessment wrong. It also demonstrates that the College undertook,
through Dean Kirkby, consideration of operational requirements. Therefore, on the standard of
arbiu'al review to be applied in these matters the College did consider its contracl~al obligations
as they arise in Appendix II. In the absence of a f'mding that they did so incorrectly then this
Board of Arbitration bught not to imeffere in that decision because the College has met their
responsibilities and their obligations.
05/17/99 21:50 FAX 416 499 1141 SHERRIL ~_IRRAY ~14
- 12 -
Thc ncccssa~J deduction from the above conclusion must be that the proviso of
Appendix II operates to relieve the College of its obligation to give preference in the designation
of full-time positions as regular. This occurs because the operational requirements as discussed
in this award, and the scope of their review by this Board of Arbitration, mcan that thc
obligation is not contractually required duc to operational requirements. This conclusion is
imicpcndent of whether there are any full-time positions which might b~ designated as regular.
_ Alvhough in this award it is found t__hs_t there arc such positions established in the evidence.
For all of the foregoing reasons the declaration sought by the grievance must be
denied. It is ordered that thc grievance be dismissed.
05/17/99 21:50 FA~ 416 499 1141 SFIR, RRIL M~JRRAY ~15
- 13-
MAY
DATED AT LONDON, ONTARIO THIS 2nd DAY OF MARCH, 1995
Richard H. Mc!aren, C.Arh.
I conaur/disr, c, nt "SIGNED'
Sir. ri'il Murray, Union Nominee
I concur/dist, c~nt "SIGNED" _
David Guptill,
College Nominee
rtil2
05/17/99 21:50 FAX 416 499 1141 SHERRIL IIURRAY ~16
COURT FILE NO: 427/95
ONTA~O COtr~T OF rOST~C£
(GENERAL DMSION)
DMSIONAL COURT
IN THE MAII'ER of a/~ application under
ONTARIO PUBLIC SERVICE I~MPLOYEE~
UNION
Applicant
and
OI¢I'ARIO COUNCIL OF REGEN'I'~ FOR
COLLEGES OF APPLIED AR.T~ AND
TECI-1NOLOOY (Fansha~ Collie)
Respondent
05/17/99 21:50 FAX 416 499 1141 SHERRIL. ~I.~L~y ~]18
· t COURT FILE NO: 427/95
ONTARIO COURT OF JUSTICE;
(OENF. R~ DMSlON3
DIVISIONAL COURT
IN THE MA.~ of an spplication under
the Jud~¢i~ Re~ie~ Procedures ~lct
The arbitration hoant in this case is protected by a privative clause. Subsection 84t of
,..
College's Collective Bsrgainm' g Act ptovidas as follows:
No de~'ision, order, detzrmin~o~ di~ction, declaration or ruling of
the Commissio~ a' fact find=, all arbitrator or bosrd, of ~bitration, a
selector or the Ontario Labour Relations Board shall be quemioncd or
reviewed in any court, and no order shall be made or prtw. ess entmxi,
or proceedings uke~ in any court, whether by way of injunctiou,
05/17/99 21:$0 FAX 415 499 1141 $~,RRIL MURRAY ~19
declaratory judgmcnt, certiorari, mandamus, prohibition, quo
warmnto, sppllcstion for judicial ~eview or otherwise, to que~ion.
review, prohibi~ or restrain the ~mmi.~ion. fact ~nder. arbitrator or
board of srbitrefion, selector or the Onterio Labour l~la~ions Boerd
or fl~e pmceedinfs of'any or,hem,
The College was obli~t ~o give preface to fuU~ng positions unless thew were valid
oper~ ~.mns for doing oflzzwise. The Bmnis defufing to ~e CoUe~e's expertise in m~l, ing
that dete~_~_qafion was not palenfly unm~onable. They gave a full hearing and ~m~ulmously
decided. "the two ~nd two schedule has the fimclerne~tal slzenet~ set o~ in De~ ]Cirby's memo
which this boant concludes tbat dm Lmion models cannot n~ch.' They also detamincd, "it cannot
be sai'd that the rnanag~ mcthod was wrong in their assessment of the opezalionA! requin:mcnts
or failed to do an assessment.~ Accordingly, even ifthc arbitmbar wm n:quizcd to zcvicw thc mcrits
·,'
of the proposals, which we say they did not have to do, they have done so and determined ~ 1he
;
Colle'ge'~ scheduling is superior. Accordi~ly thc applica~on is dismissed.