HomeMy WebLinkAboutUnion 02-12-21IN THE MATTER OF AN ARBITRATION
BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the "Union")
-- AND -
GEORGE BROWN COLLEGE
(the "Employer")
AND IN THE MATTER OF UNION GRIEVANCE #98C292 (ACADEMIC)
BOARD OF ARBITRATION Robert D. Howe, Chair
Sherril Murray, Union Nominee
Rene St. Onge, Employer Nominee
APPEARANCES
For the Union Elizabeth Mitchell, Counsel
Damien Wiechula
For the Employer F.G. Hamilton, Counsel
Sally Roy
David Ivany
A hearing in the above matter was held in Toronto, Ontario,
on September 8, 1999; March 13 and 15, October 23 and 25,
November 29, and December 11, 2000; April 9, May 29, June 4
and 11, November 12, and December 3 and 10, 2001; and
January 11, March 14 and 15, May 31, and June 5 and 21, 2002.
AWARD
This case arises out of a union policy grievance
(#98C292) filed by OPSEU Local 556 on February 24, 1998. The
Union grieves that George Brown College (also referred to in
this award as the "College" and the "'Employer", for ease of
exposition) has assigned inequitable and unreasonable
workloads to sessional appointed professors ("sessionals") in
violation of Articles 6.02 and 11.05 of the collective
agreement (the "Agreement").
Those articles provide as follows:
Article 6
MANAGEMENT FUNCTIONS
6.01 It is the exclusive function of the Colleges to:
(i) maintain order, discipline and efficiency;
(ii) hire, discharge, transfer, classify, assign,
appoint, promote, demote, lay off, recall and
suspend or otherwise discipline employees subject
to the right to lodge a grievance in the manner
and to the extent provided in this Agreement;
(iii) manage the College and, without restricting the
generality of the foregoing, the right to plan,
direct and control operations, facilities,
programs, courses, systems and procedures, direct
its personnel, determine complement,
organization, methods and the number, location
and classification of personnel required from
time to time, the number and location of campuses
and facilities, services to be performed, the
scheduling of assignments and work, the
extension, limitation, curtailment, or cessation
of operations and all other rights and
responsibilities not specifically modified
elsewhere in this Agreement.
6.02 The Colleges agree that these functions will be
exercised in a manner consistent with the provisions of
this Agreement.
Article 11
WORKLOAD
11.05 The parties agree that no College shall
circumvent the provision [sic] of this Article by
arranging for unreasonable teaching loads on the part
of persons who are excluded from and not included in
the academic bargaining unit.
On March 14, 2002, we were advised by counsel that
grievance #00-30 (OPSEU File No. 01C039) has also been
referred to us on the agreement of the parties, on the
understanding that consideration of that. grievance (which is
of a similar nature) will be deferred until after grievance
No. 98C292 has been heard and decided.
Teachers (as well as counsellors and librarians)
employed on a sessional basis are expressly excluded from the
bargaining unit by Article 1.01, "NOTE B" of which provides
that "[s]essional in this context shall mean an appointment of
not more than 12 months duration in any 24 month period".
(The permitted duration of excluded sessional employment and
the effect of exceeding it are dealt with in greater detail in
Appendix VIII to the Agreement.)
Article 2 of the Agreement contains provisions
requiring the College to give preference to the designation of
full-time positions as regular rather than sessional (or
partial-load) teaching positions, and precluding the College
from abusing sessional appointments by failing to fill ongoing
positions or by combining sessional with partial-load service.
Although the Union has filed grievances against the College
2
alleging violations of those prc~isions, those grievances are
not before us in these proceedi~ ~s, and the grievances which
are do not allege a violation of Article 2.
During the course of these protracted proceedings, we
heard extensive oral evidence from a total of six witnesses.
In addition to their testimony, 77 exhibits (including a
number consisting of multiple documents) were entered into
evidence during the course of the hearing. Although we have
found it unnecessary to include a detailed recitation of all
of that evidence in this award, in making our findings and
reaching our conclusions we have duly considered all of the
oral and documentary evidence, the extensive and very able
submissions of counsel, and the usual factors germane to
assessing evidentiary reliability. We have also considered
the inferences which may reasonably be drawn from the totality
of the evidence.
The two witnesses called by the Union were Damian
Wiechula and Elizabeth Watt. Mr. Wiechula has been a
full-time teacher at the College for over twenty years, and is
the First Vice-President and Chief Steward of Local 556. Ms.
Watt was hired by the College as a full-time teacher in 1988
and remained in that position until she was laid off in 1996.
Following her lay-off, she accepted some sessional work which
was offered to her by the College. She also filed a number of
grievances, which were settled on August 3, 1999 by a
Memorandum of Settlement and Release signed by Ms. Watt and by
representatives of the Union and the College.
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When counsel for the Union sought to.adduce evidence
comparing Ms. Watt's full-time workload and her sessional
workload, counsel for the College objected to its
admissibility. After hearing submissions regarding that
issue, the Board decided to admit that evidence and to reserve
ruling on the weight, if any, to be given to it. Having now
had the benefit of further submissions on that matter and
additional time to reflect upon it, we have decided that it is
not appropriate to give any weight to that evidence. Although
the reasonableness of Ms. Watt's sessional teaching load was
not expressly raised in the grievances which she filed
following her lay-off, it was raised during the course of the
grievance procedure and, in our view, was one of the matters
covered by the Memorandum of Settlement and Release, the final
paragraph of which reads as follows:
6. This settlement is a complete settlement of all
issues in dispute in respect of the grievance and
is a resolution of all matters that were raised or
could have been raised in this grievance.
All of the Colleges covered by the Agreement,
including George Brown College, use a Standard Workload Form
(referred to in the Agreement and in this award as a "SWF") in
the assignment of workloads to teachers covered by the
Agreement. Article 11.02 provides in part as follows
regarding that form (which is Appendix I to the Agreement):
11.02 A 1 (a) Prior to the establishment of a total
workload for any teacher the supervisor shall discuss
the proposed workload with the teacher and complete the
SWF, attached as Appendix I, to be provided by the
College. The supervisor shall give a copy to the
teacher not later than six weeks prior to the beginning
of the period covered by the timetable ....
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11.02 A 2 The SWF shall include all details of the
total workload including teaching contact hours,
accumulated contact days, accumulated teaching contact
hours, number of sections, type and number of
preparations, type of evaluation/feedback required by
the curriculum, class size, attributed hours, contact
days, language of instruction and complementary
functions.
Article 11.02 A 1 (a) requires the College to
complete SWF's for members of the bargaining unit. However,
the Agreement does not impose any such requirement with
respect to sessionals. Thus, although "Sessional" is one of
the categories listed on the Standard Workload Form, it is
clear that a college (such as Georgian College) which prepares
SWF's for sessionals does so on a voluntary basis. It has not
been the practice of George Brown College to prepare SWF's for
sessionals, and it is unwilling to so voluntarily.
Article 11.01 contains detailed workload provisions
(occupying six pages of the Agreement) which apply to members
of the bargaining unit, including the following:
11.01 A Each teacher shall have a workload that
adheres to the provisions of this Article.
ll.01 B 1 Total workload assigned and attributed by
the College to a teacher shall not exceed 44 hours in
any week for up to 36 weeks in which there are teaching
contact hours for teachers in post-secondary programs
and for up to 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) teaching contact hours
(ii) attributed hours for preparation
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(iii) attributed hours for evaluation and feedback
(iv) attributed hours for complementary functions
ll.01 D 1 Weekly hours for preparation shall be
attributed to the teacher in accordance with the
following formula:
RATIO OF ASSIGNED TEACHING CONTACT HOURS
TYPE OF COURSE TO ATTRIBUTED HOURS FOR PREPARATION
New 1 : 1.10
Established A 1 : 0.85
Established B 1 : 0.60
Repeat A 1 : 0.45
Repeat B 1 : 0.35
Special A as indicated below
Special B as indicated below
11.0~ D 2 No more that four different course
preparations or six different sections shall be
assigned to a teacher in a given week except by
voluntary agreement which shall not be unreasonably
withheld.
11.0~ D 3 For purposes of the formula:
(i) "New" refers to the first section of a course
which~the teacher is
- teaching for the first time. (This
definition does not apply to a new
full-time teacher who has previously taught
the course as a Partial-Load, Sessional or
Part-time employee, nor to courses
designated as "Special" as defined below);
or
- teaching for the first time since a major
revision of the course or the curriculum
has been approved by the College.
(ii) "Established A" refers to the first section of
a course which the teacher has previously
taught but not within the previous three
academic years.
(iii) "Established B" refers to the first section of
a course which the teacher has taught within
the previous three academic years.
· o · o
(v) "Repeat A" refers to another section which the
teacher is teaching concurrently with the same
course for which hours of preparation have
been attributed under "New" or "Established",
but to students in a different program or year
of study.
(vi) "Repeat B" refers to another section which the
teacher is teaching concurrently with the same
course for which hours of preparation have
been attributed under "New" or "Established"
or "Repeat A" to students in the same program
and year of study.
(vii) "Special A" refers to sections of courses in
which students may enter on a continuous
intake basis or courses which have been
organized into individualized self-learning
packages ....
(viii) "Special B" refers to preparation for sections
of a course in which the objectives describe
the students' application of knowledge in
actual work settings ....
ll.01 E 1 Weekly hours for evaluation and feedback in
a course shall be attributed to a teacher in accordance
with the following formula:
RATIO OF ASSIGNED TEACHING CONTACT HOURS
TO ATTRIBUTED HOURS FOR EVALUATION AND FEEDBACK
Essay or Project Routine or In-Process
Assisted
1:0.030 1:0.015 1:0.0092
per student per student per student
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11.01 E 2 For the purposes of the formula:
(i) "Essay or project evaluation and feedback" is
grading:
- essays
- essay type assignments or tests
- projects; or
- student performance based on behavioral
assessments compiled by the teacher
outside teaching hours.
(ii) "Routine or assisted evaluation and feedback"
is grading by the teacher outside teaching
contact hours of short answer tests or other
evaluative tools where mechanical marking
assistance or marking assistants are provided.
(iii) "In-process evaluation and feedback" is
evaluation performed within the teaching
contact hour.
(iv) Where a course requires more than one type of
evaluation and feedback, the teacher and the
supervisor shall agree upon a proportionate
attribution of hours. If such agreement
cannot be reached the College shall apply
evaluation factors in the same proportion as
the weight attached to each type of evaluation
in the final grade for the course.
11.01 F Complementary functions appropriate to the
professional role of the teacher may be assigned to a
teacher by the College. Hours for such functions shall
be attributed ~n an hour for hour basis.
An allowance for a minimum of five hours of the 44 hour
maximum weekly total workload shall be attributed as
follows:
three hours for routine out-of-class
assistance to individual students
two hours for normal administrative tasks.
11.01 I Teaching contact hours for a teacher in
8
post-secondary programs shall not exceed 18 in any
week. Teaching contact hours for a teacher not in
post-secondary programs shall not exceed 20 in any
week.
ll.01 J 1 Notwithstanding the above, overtime worked
by a teacher shall not exceed one teaching contact hour
in any one week or three total workload hours in any
one week and shall be voluntary.
1~.01 J 4 Probationary teachers shall not be assigned
teaching contact hours or total workload hours in
excess of the maxima in any circumstances.
The first collective agreement that included the
workload formula was the 1985-87 collective agreement (which
was finalized through a med-arb process conducted by
Arbitrator Teplitsky). Although the numbering of that article
has changed (from Article 4 to Article 11), its substantive
provisions, including what is now Article 11.05, have remained
unchanged since that time. Under the preceding collective
agreement, the maximum number of teaching contact hours per
week had been 20 for post-secondary and 22 for non
post-secondary. The workload formula reduced each of those
two maxima by two hours per week. The College made a similar
change in its policy regarding the maximum number of weekly
teaching contact hours to be assigned to sessionals, by
reducing it from 20 to 18 for post-secondary programs (and
from 22 to 20 for non post-secondary programs). Although they
have occasionally been exceeded, the evidence indicates that
during the ensuing years those maxima have been applied by the
College to an overwhelming majority of sessionals. It also
9
indicates that the College has not applied any other aspects
of the workload formula to sessionals, nor produced SWF's for
sessionals.
In September of 1986, Local 556 filed a grievance
alleging that the College had breached the collective
agreement "in that Sessional Employee(s) have been give
excessive and unreasonable workloads"° That grievance was
signed by Eric Lord, who was the President of Local 556 at
that time. In responding to that grievance, the College's
Director of Personnel (Sally Layton, who subsequently became
the College's Vice-President of Human Resources and whose name
subsequently became Sally Roy) sent a letter to Mr. Lord
advising that J. Turner (who was the College's Vice-President
of Administration) would be issuing a memorandum immediately
to all Deans and Chairpersons stating that "as per the
Collective Agreement, Article 4.05, sessional employees should
be assigned 'reasonable' teaching loads" (Article 4.05
refers to what is now Article 11.05.) However, Mr. Lord was
not satisfied with the wording of Mr. Turner's memorandum, as
reflected by the following memo which he sent to Ms. Layton on
October 20, 1986:~
With respect to the memo from J. Turner to Deans and
Chairpersons regarding the above noted grievance [re
unreasonable workloads for sessional teachers], we feel
that the wording of this memo does not adequately
reflect the spirit of your letter.
"Reasonable" workloads should comply with the other
limits contained in Article 4 of the contract as well
as the weekly total workload of 44 hours. Sessionals
teaching post secondary programs should not exceed 18
teaching hour/week, and in non-post secondary, should
not exceed 20 teaching hours/week. The number of
10
subjects/courses or sections should also be reasonable.
For the ~rievance to be resolved, a further memo
specifyin~ the above should be issued immediately.
Although that memo suggests that the Union was not
satisfied with the College's response, the ~rievance was not
taken to arbitration, nor was any other ~rievance filed or
taken to arbitration prior to 1997. Thus, the College's
practice of assi~nin~ sessionals up to 18 teachin~ hours per
week in post-secondary pro~rams and up to 20 teachin~ hours
per week in non post-secondary pro~rams continued without
further challenge by the Union for more than a decade.
The Union's interest in the College's employment of
sessionals was piqued in the mid 1990's by their increased use
in the face of a substantial decline in the number of
full-time academic employees. The Union was also concerned
about the results of the 1996-97 and 1997-98 CAAT Academic
Workload Surveys conducted by the Office of Collective
Bar~ainin~ Information in consultation with the College
Relations Commission Information Services (CRCIS) Advisory
Committee. Those surveys, which compiled information on the
basis of SWF data provided to the Office of Collective
Bar~ainin~ Information by over 20 (23 for 1996-97 and 22 for
1997-98) of the 25 community colleges in Ontario, indicated
that the teachin~ hours per week, workload hours per week, and
student contact hours per week for full-time faculty at the
College all exceeded the provincial average. Extrapolatin~
from that data led Mr. Wiechula to conclude that a sessional
teachin~ 18 hours per week at the College would likely have a
11
total of between 48 and 49 workload hours per. week, while a
sessional teaching 20 hours per week at the College would
likely have a total of between 53.3 and 54.5 workload hours
per week. Concerns expressed by Ms. Watt and other teachers
regarding the workloads which they were given as sessionals
after being laid off from full-time positions also constituted
part of the background which led to the filing of the union
policy grievance, as did Mr. Wiechula's concern that the
reasons which the College was providing for using sessionals
were expanding in scope.
In monitoring the College's use of sessionals, the
Union relies primarily upon the information provided to it by.
the Employer pursuant to the following provision of the
Agreement (which is currently Article 27.12, but was
previously Article 8.15(b)):
Personnel Lists
27.12 During the last week of September, January and
May the College shall notify the Union Local President
of all personnel covered by the Agreement hired or
terminated since the last notification, together with
the classification, location and Division or Department
concerned. At such times, the College shall also
include notification of all hirings of personnel
assigned to teach credit courses including, in
particular, sessional appointments.
Although the form of the sessional appointment lists
which the College has provided to the Union pursuant to that
provision (the "Article 27.12 lists") has varied somewhat over
the years, they generally have included the names of the
sessionals, their start dates and termination dates, the
departments in which they are teaching, and the number of
12
hours per week they are teaching. The 1985-1987 and 1987-89
collective agreements included a paragraph in Article 8.15(b)
requiring the College to notify the Local Union President of
"all persons hired to teach credit courses who are commencing
in the month of September of 1986, their classification, hours
of teaching, subjects taught and department", but the parties
agreed to delete that paragraph in 1989. However, the
Employer continued to provide the Union with "hours of
teaching" information even though it was no longer required to
do so by the collective agreement. The Article 27.12 lists
also sometimes include the rationale for the appointment.
Sessionals are generally hired by the College to replace
full-time employees who are absent on sick leave or other
leaves of absence, to cover unexpected enrolment increases or
requirements for split sections (to accommodate students
needing remedial assistance), and to teach in situations in
which there is uncertainty regarding the continuation of
funding. When sessionals are hired to replace absent
full-time employees, it is often not a direct one-for-one
replacement because course coverage may necessitate some
rearranging of full-time courseloads in order to ensure that
the absent teacher's courses are being taught by individuals
with the necessary level of expertise and experience. The
unavailability of a qualified sessional to teach at a
particular time of the day may also be a factor necessitating
some rearrangement of assigned courses, particularly where the
sessional is being brought in on short notice to replace a
13
teacher during an unanticipated absence. Some shifting of
courses may also be done in order to accommodate another
full-time teacher's interest in having an opportunity to teach
a course which has previously been taught by the absent
teacher, or in order to accommodate requests by full-time
teachers to avoid being scheduled to teach at certain times of
the day. It may also reasonably be inferred from the totality
of the evidence that another reason why the courses taught by
a sessional may differ from those which would otherwise have
been taught by the full-time teacher who is being replaced is
that the College perceives the inapplicability of the Article
11 workload formula to sessionals as giving it greater
flexibility in making teaching assignments to them.
Much of the evidence which the Union adduced in
support of the grievance took the form of "theoretical SWF's"
prepared by Mr. Wiechula on the basis of the formulae
contained in Article 11. Mr. Wiechula prepared those
theoretical SWF's using information which he obtained from
materials provided by the College, including SWF's for
full-time employees, timetables, course outlines, and
information which~the College provided to the Union after the
Board made a production order on the first day of the hearing
of this matter. Since adequate documentation was not
available for the 1997-98 academic year, the College offered
to provide documentation regarding sessionals employed by the
College in the 1999-2000 academic year and the Union accepted
that offer.
14
The Union had previously attempted to obtain workload
data for sessionals through the Workload Monitoring Group
established pursuant to Article 11.02 and, after this proved
to be unsuccessful, through a grievance filed under the
workload resolution arbitration process for which that article
provides. In an unreported award dated July 26, 1998,
Workload Resolution Arbitrator Howard Snow concluded that the
College was under no obligation under Article 11.01 or 11.02
to provide that information to the Union. However, as
expressly noted on page 8 of that award, the question of
whether the Union had a right to that information under
another part of the Agreement, and the question of whether it
could obtain access to the information in an unreasonable
workload grievance under the standard form of arbitration,
were not before Arbitrator Snow for resolution in those
proceedings and he consequently expressed no opinion on them.
In addition to assigned teaching contact hours,
attributed preparation hours (calculated in accordance with
the formula contained in Article 11.01 D 1), and attributed
evaluation and feedback hours (calculated in accordance with
Article 11.01 E 1), the hypothetical SWF's prepared by Mr.
Wiechula each include 5.5 complementary hours. Mr. Wiechula
derived five of those hours from the minimum allowance of five
complementary hours attributed by Article 11.01 F on the basis
of "three hours for routine out-of-class assistance to
individual students" and "two hours for normal administrative
tasks", which Mr. Wiechula suggested would include dealing
15
with telephone calls, voice-mail messages, e-mail messages,
and other memos. He assigned the remaining one-half hour to
parallel the amount of time that full-time teachers are
allotted for attending departmental meetings. He noted that
even full-time teachers who are scheduled to teach at a time
which conflicts with those meetings are given that half-hour
allotment'for the purpose of ascertaining the essential
information disclosed at the meetings. Mr. Wiechula's
assumption that sessional teaching loads include attendance at
such meetings was based upon conversations he had with
sessionals and upon his personal experience of having attended
meetings at which sessionals were present. However, he did
not know whether they were required by the Employer to attend
those meetings or merely did so on their own initiative.
Moreover, he did not speak with any of the sessionals with
respect to whom he prepared theoretical SWF's regarding their
attendance at meetings or regarding any other matters
pertaining to their teaching loads.
Mr. Wiechula prepared hypothetical SWF's for five of
the fourteen sessionals employed by the College in its
Information Technology Department during the 1999-2000
academic year. He selected those five because they had the
highest number of weekly teaching contact hours (ranging from
sixteen to twenty hours per week). He chose not to prepare
hypothetical SWIF's for the other nine sessionals in that
Department, whose lower number of weekly contact hours did not
lead him to believe that they had been assigned excessive
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workloads. The total weekly hours which he calculated for
those five sessionals were 58.03 for Ahmad Bashir, 58.45 for
Yuri Felshin, 48.6 hours for Henry Kong NG, 45.4 for Abid
Rana, and 54.15 for Karl Timmerman. (All of those totals are
for the Winter Semester, with the exception of the last one
which pertains to the Fall Semester.)
Mr. Wiechula prepared twelve hypothetical SWF's for
sessionals employed in the College's Technology Department
during the 1999-2000 academic year. The calculations on those
hypothetical SWF's yield the followin9 total weekly hours:
49.96 (from September to December of 1999) for Kathryn Allen,
50.11 (from January to April of 2000) for Nabil Ayoub, 51.30
(from September to December of 1999) and 44.812°(from January
to April of 2000) for John Hamilton, 49.09 (from January to
April of 2000) for Mohammed Moughal, 52.972 (from January to
April of 2000) for Igor Poliakov, 50.88 (from September to
December of 1999) and 47.44 (from January to April of 2000)
for Lynne Thompson, 56.20 (from September to December of 1999)
and 50.133 (from January to April of 2000) for Fiona Woodward,
and 54.77 (from September to December of 1999) and 45.035
(from January to April of 2000) for Trisha Yeo.
The Union also relied upon two hypothetical SWF's
which Mr. Wiechula prepared for sessionals employed in the
College's Fashion Technology and Design Department. His
calculations on those hypothetical SWF's yielded the following
total weekly hours: 47.425 for Cynthia Givens-Sanford and
52.971 for Milan Shahani, for September to December of 1999.
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The evidence adduced by the College indicates that
sessionals are hired to teach assigned courses, to provide
academic advisement to their students regarding those courses,
and to evaluate their students' progress and achievement in
those courses. They teach pre-existing courses using
pre-established course outlines and pre-selected textbooks.
They also have access to pre-existing handouts and tests.
They are expected to give students some means of contacting
them outside of class, such as e-mail or voice-mail. They are
also expected to check their mailboxes at the College on a
regular basis. If sessionals need assistance or support, they
liaise with a Chair, a co-ordinator, or an experienced
full-time teacher. Although they are not required to attend
promotion meetings, they are required to submit grades and
assessment data in a timely manner for use at those meetings.
They are not required or expected to be involved in the
design, revision, or updating of courses; in providing
guidance to instructors relative to the instructors' teaching
assignments, participating in the work of curriculum and other
consultative Committees, or otherwise providing academic
leadership; nor in contributing to other areas ancillary to
the role of a teacher, such as student recruitment and
selection, time-tabling, facility design, professional
development, student employment, and control of supplies and
equipment. They do not select or review course textbooks, nor
are they involved in staff development or promotion activities
for College programs. Although they are welcome to attend
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departmental or divisional meetings, they are. not required to
do so.
Sessionals are generally interviewed and hired by a
departmental Chair, such as Hilde Zimmer, James Waller, and
Fran Dungey, who, in addition to Ms. Roy, were the witnesses
called by the College in this case. Consideration is given
not only to their academic background but also to their
familiarity with the course content. Prior teaching
experience is also taken into account, as is related
experience. It is not unusual for a sessional teacher to have
previous experience teaching similar courses at one or more of
the other community colleges in the Toronto area.
The College remunerates sessionals on the basis of
the number of teaching contact hours which they are assigned.
They are paid an hourly rate ranging from $41.48 (at step
level 3) to $75.00 (at step level 19) for Post-Secondary
courses (and ranging from $37.33 to $67.50 for Non
Post-Secondary courses), depending upon their qualifications
and experience. Those rates are derived from the collective
agreement's salary schedule for full-time professors,
counsellors and librarians. The hourly rates are calculated
by dividing the salaries on that schedule by 52 and then
further dividing the quotient by 18 for post-secondary (and by
20 for non post-secondary). A sessional whose assignment
extends beyond ninety days is also paid a four percent
allowance in lieu of benefits. Sessionals are also entitled
to public holidays with pay after three month's service
19
(provided they work the day immediately prior, to the holiday
and the first regularly scheduled working day following the
holiday). As indicated above, the College has a policy
limiting the maximum number of weekly teaching contact hours
which can be assigned to a sessional to 18 for post-secondary
programs (and 20 for non post-secondary programs). However,
when that maximum is exceeded, as occasionally occurs, the
sessional is paid the same hourly rate for the extra hours and
does not receive any overtime or premium payment.
Summary of Union Counsel's Argument in Chief
Although the Union was initially seeking an award of
damages, at the commencement of final argument Ms. Mitchell
indicated that the Union was narrowing the scope of the
remedial relief being sought so as to confine it to the
following remedies:
(1) a declaration that the College has assigned unreasonable
teaching workloads to sessionals in a manner that is
inconsistent with the collective agreement and in violation of
Articles 6.02 and 11.05;
(2) an order that the College revoke or amend its policy that
sessionals can be-scheduled to a maximum of 18 teaching
contact hours for post-secondary and 20 teaching contact hours
for non post-secondary without regard to other factors
relevant to a teacher's workload;
(3) an order that the College take other factors relevant to
teaching into account, including preparation time, out of
class assistance to students, complementary functions,
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administrative functions, and evaluation time~
(4) an order that the College produce SWF's for sessionals or,
alternatively, provide the Union with sufficient information
which is consistent, comprehensive, and reliable, so that the
Union can produce its own SWF's for sessionals.
Although the only provisions of the collective
agreement alleged to have been violated are Article 6.02 and
11.05, Union counsel asked the Board to consider the entirety
of the Agreement in deciding whether those two provisions have
been violated in the circumstances of this case. The Union's
theory of the case is that the application of the College's
policy of using maximum teaching contact hours leads to
unreasonable workloads for sessionals, and that the College's
plucking out of that maximum has lead to prima facie
violations of the Agreement. Although the Union is not
suggesting that exceeding the maximum hours permitted under
the SWF system inevitably leads to an unreasonable workload
for sessionals, it wishes to use SWF data as an objective
measure which will be the starting point of its own
investigation into the workloads being assigned to sessionals,
in order to monitor and enforce the Agreement and protect its
bargaining unit from erosion.
After reviewing the evidence adduced by the Union,
Ms. Mitchell contended that it raised a prima facie case which
was not rebutted by the subjective opinion evidence adduced by
the College. She also highlighted the difficulties which the
Union would encounter in attempting to obtain direct evidence
21
from sessionals. She submitted that in defining
reasonableness, the Board should be guided by the SWF system.
She also suggested dictionary definitions, the 48 hour weekly
maximum (with overtime payable after 44 hours) under the
Employment Standards Act, and comparison with the full-time
faculty member being replaced by the sessional, as other
options.
Union counsel also referred to a number of cases
during the course of her submissions, including Cambrian
College and OPSEU. Local 655, unreported award dated November
16, 1987 (Devlin); Fanshawe College and OPSEU (Christine
Begert grievances), unreported award dated July 22, 1988
(Kates); Cambrian College and OPSEU (Union Grievance #87X97),
unreported award dated July 5, 1988 (Palmer); Fanshawe College
and OPSEU (qrievance re sessional teaching load), unreported
award dated November 20, 1989 (P.C. Picher); Algonquin College
and OPSEU (grievance 88A791 - Debbie Teskey), unreported award
dated November 24, 1989 (P.C. Picher); and Niagara College and
OPSEU (Union Grievance #88B619), unreported award dated June
5, 1991 (Swan).
Summary of Employer Counsel's Response
In his submissions on behalf of the College, Mr.
Hamilton contended that the Union is asking the Board to
fundamentally reconstruct the relationship between the College
and the Union by amending and acting outside of the collective
agreement, and awarding what the Union should be seeking
though negotiations. He argued that the quia timet relief
22
requested by the Union is not warranted, and that the
circumstances of the instant case do not fall within the
parameters of the situations in which quia timer relief has
been granted, as described in Re Amalgamated Clothing Workers
of America and Polax Tailoring Ltd. (1972), 24 L.A.C. 201
(Arthurs); Re School District No. 75 (Mission) and Mission
Teachers' Union (1997), 61 L.A.C. (4th) 8 (Larson); Re Haida
Motor Inn and B.C.G.E.U. (95/649) (1995), 51 L.A.C. (4th) 351
(Laing); and Re Royal Crest Life Care Group Inc. and C.U.P.E.,
Loc. 1712 (1993), 38 L.A.C. (4th) 250 (Carrier).
College counsel argued that the Union is estopped
from challenging the College's longstanding practice of
assigning sessionals up to 18 teaching hours per week in
post-secondary programs and up to 20 teachin9 hours per week
in non post-secondary programs. That practice indicates how
the parties have interpreted Article 11.05, and has solidified
to such an extent that it can only be chan~ed is through
collective bargaining. Moreover, the manner in which the
arbitral caselaw has permitted community colleges to use
sessionals has become part of the "labour relations climate"
as a result of the applicable arbitral caselaw, which includes
Re Fanshawe College of Applied Arts and Technology and Ontario
Public Service Employees Union (Union Grievance No. 83249
unreported award dated July 12, 1984 (H.D. Brown); Cambrian
College and OPSEU, Local 655, supra; Cambrian College and
OPSEU (Union Grievance #87X97), supra; Fanshawe College and
OPSEU (Christine Begert qrievances), supra; Fanshawe College
23
and OPSEU (grievance re sessional teaching load), supra;
Algonquin College and OPSEU (grievance 88A791 - Debbie
Teskey), supra; and Niaqara College and OPSEU (Union Grievance
#88B619), supra.
Counsel for the College further argued that the SWF
system does not apply to sessionals and should not be
considered in determining the reasonableness of their teaching
loads as it does not give adequate recognition to their
qualifications, experience, and background, and fails to make
allowance for the College's surge needs. The hypothetical
SWF's prepared by Mr. Wiechula are not an accurate measure of
the teaching loads in issue in these proceedings. The Board
should rely upon the evidence given by the College's
witnesses, which establishes the reasonableness of the
sessionals' teaching loads. The reasonableness of those
teaching loads is also demonstrated by the fact that they were
accepted by the sessionals.
Summary of Union Counsel's Reply Argument
Collective bargaining is one of the means through
which the Union may be able obtain SWF's for sessionals, but
they can also be Obtained by means of the College voluntarily
agreeing to provide them, or by means of an arbitration board
ordering the College to provide them in order to provide a
meaningful remedy to the Union. Although the Union could have
grieved the College's policy regarding sessional workloads
when it was formulated in 1986, it was also open to the Union
to grieve it at a later date when the application of the
24
policy gave rise to violations of the collective agreement.
If any estoppel was created, it came to an end when the Union,
after unsuccesfully attempting to obtain workload data for
sessionals through the Workload Monitoring Group, filed a
grievance under the workload resolution arbitration process,
and subsequently filed the instant grievance, thereby putting
the Employer on notice that the Union was no longer accepting
that practice. The sessionals' acceptance of their workloads
should not be given any weight in determining the
reasonableness of their workloads. Moreover, unanticipated
absences or other unexpected changes do not entitle the
College to assign sessionals unreasonable teaching loads.
Preparing SWF's for sessionals would not be an onerous task
for the College as all of the necessary information is well
within its knowledge. Obtaining workload information
concerning sessionals through the Local Union/College
Committee is not a realistic option as the College's refusal
to meet under Article 7.02 has itself given rise to other
grievances.
Decision
Counsel for the College relied upon Mr. Lord's memo
dated October 20, 1986 to Ms. Layton in support of his
contention that Local 556 accepted the College's position that
not exceeding 18 teaching hours per week in post secondary
programs and not exceeding 20 teaching hours per week in
non-post secondary programs would constitute reasonable
teaching loads for sessionals. The second sentence of the
25
second paragraph of that memo ("Sessionals teaching post
secondary programs should not exceed 18 teaching hour/week,
and in non-post secondary, should not exceed 20 teaching
hours/week") provides some support for that contention when
read in isolation. However, as noted by counsel for the
Union, Mr. Lord also asserted in that memo that "'Reasonable'
workloads should comply with the other limits contained in
Article 4 of the contract" including "the weekly total
workload of 44 hours", and that the "number of
subjects/courses or sections should also be reasonable".
Mr. Lord's memo also indicated that "[f]or the
grievance to be resolved, a further memo specifying the above
should be issued immediately". However, that did not occur
and, as noted earlier in this Award, although the memo
suggested that the Union was not satisfied with the College's
response, the grievance was not taken to arbitration, nor was
any other grievance filed or taken to arbitration prior to the
1997-98 academic year. Thus, the College's practice of
assigning sessionals up to 18 teaching hours per week in
post-secondary programs and up to 20 teaching hours per week
in non post-secondary programs continued without further
challenge by the Union for more than a decade. The Union's
inaction during that lengthy period of time gives rise to an
inference that the Union acquiesced in the College's practice,
and estops the Union from obtaining any relief for the period
preceding the end of the 1997-98 academic year, during which
the Union filed the grievance which gave rise to Arbitrator
26
Snow's aforementioned award and also filed the grievance to
which this Award pertains, thereby putting the College on
notice that its practice regarding sessional workloads would
no longer be acquiesced in by the Union.
Since the evidence adduced in the instant case
pertains to a period beyond the time at which the estoppel
came to an end, we shall proceed to determine whether it
establishes on the balance of probabilities that unreasonable
teaching loads were assigned to sessionals during the
1999-2000 academic year.
The arbitral'jurisprudence under what is now Article
11.05 developed primarily in the 1980's and early 1990's (when
that provision was numbered as Article 4.05). In Re Fanshawe
College of Applied Arts and Technology and Ontario Public
Service Employees Union (Union Grievance No. 83249, supra, an
arbitration board chaired by Arbitrator Brown found a
nine-week assignment to teach 27 hours per week in a life
skills course for adults not to be unreasonable even though it
was six hours per week over the maximum allowed at that time
for teachers in the bargaining unit. In reaching that
conclusion, the award gave considerable weight to the fact
that the sessional had agreed to teach those extra fifty-four
hours, and to the fact that there was no evidence of bad faith
on the part of the College. However, those two aspects of the
approach adopted in that case have met with disfavour in
subsequent cases. In Cambrian College and OPSEU, Local 655,
supra, at page 15, Arbitrator Devlin wrote as follows in
27
rejecting them:
... we are unable to conclude that the College assigned
an unreasonable teaching load to Dean Gibson in
violation of Article 4.05 of the collective agreement.
In reaching this conclusion, however, we have not
considered the fact that the College freely disclosed
the teaching contact hours and total workload hours
assigned to Mr. Gibson. We agree with Ms. Farson that
a violation of Article 4.05 is not dependent upon a
finding of bad faith on the part of the College. As a
result and while any attempt to conceal or,mislead the
Union concerning the teaching contact or total workload
hours of a sessional employee might suggest an attempt
to avoid the application of Article 4.05, the absence
of such activity is not necessarily indicative of
compliance. We also agree with Ms. Farson that whether
or not Mr. Gibson was content with the workload is
largely irrelevant. Article 4.05 was designed to
preclude the College from assigning excessive or
unreasonable teaching loads to non-bargaining unit
employees with a potentially negative impact on members
of the bargaining unit. As a consequence, the
reasonableness of the teaching load cannot, in our
view, be judged by whether the sessional employee is
satisfied with the hours assigned.
That passage was quoted with approval and applied by
Arbitrator Swan in his majority award in Niagara College and
OPSEU (Union Grievance #88B619), supra.
In Cambrian College and OPSEU, Local 655, supra, at
pages 12-13, Arbitrator Devlin also made the following
observations in finding the probationary teacher restrictions
(contained in what was then Article 4.01 (10) (d), which is
now Article 11.01 J 4 of the Agreement) to be inapplicable to
sessional employees:
In contrast to those provisions of Article 4 which
limit the teaching contact hours and total workload
hours which may be assigned to members of the
bargaining unit, Article 4.05 contains no quantitative
restriction on the hours which may be assigned to those
excluded from the unit. In these circumstances, we do
not believe that it is appropriate to simply import the
restrictions applicable to probationary teachers,
where, as here, the sessional employee has had no prior
28
teaching experience .... had the parties.intended to
place similar restrictions on these groups in terms of
teaching contact hours or total workload hours, they
would have done so. Article 4.05, however, provides
that no college shall circumvent the provisions of
Article 4 by arranging for unreasonable teaching loads
on the part of persons excluded from the bargaining
unit. By referring to "unreasonable teaching loads",
it is our view that the parties intended the broader
basis for consideration.
At the time of that award, the maximum weekly
workload permitted by the Agreement for members of the
bargaining unit was fifty workload hours, comprised of the
forty-four hour weekly workload maximum plus six total
workload overtime hours. Although the Arbitration Board found
it unnecessary to decide "[w]hether or not total workloads
beyond those permitted by the collective agreement would
invariably constitute an unreasonable teaching load", they did
express the view (at page 14) that the "fact that the total
workload hours assigned to [the sessional in question] do not
exceed 50 as permitted for the academic year beginning
September 1, 1986 suggests that the teaching load was not an
unreasonable one".
In Fanshawe College and OPSEU (Christine Begert
grievances), an arbitration board chaired by Arbitrator Kates
found a sessional to have been assigned an unreasonable
teaching load on the basis that the 37.5 hours per week during
which she was required to provide instructional and teaching
services was approximately ten hours per week more than the
average of 27.5 hours per week assigned to a comparable
bargaining unit employee. To remedy that violation, the
College was directed to pay the sessional "an amount with
29
interest at the appropriate overtime rate for. the excess hours
(10) worked beyond 27.5 hours per week during the period of
her sessional employment".
In dismissing a Union grievance filed under what is
now Article 11.05 of the Agreement (then Article 4.05), the
majority of an arbitration chaired by Arbitrator Palmer wrote,
in part, as follows in Cambrian College and OPSEU (Union
Grievance #87X97), supra, at page 8, in which they accepted
the College's argument that what is in issue under that
provision is not a sessional's "workload" but the sessional's
"teaching load", which is only one component of "workload":
... the Board is of the view that this grievance should
be dismissed.
In coming to this conclusion, in a general way the
Board accepts the thrust of the College argument.
Thus, it seems to us that what is in issue is the
teaching functions undertaken by the excluded teachers
rather than their total work with the College.
Normally, full-time teachers would have considerably
more administrative duties attached to their
appointment than would a part-time teacher.
Accordingly, to draw a parallel between the two in
terms of the results of SWF's would be unreasonable.
The majority also adopted (at page 8 of the award) an approach
similar to that applied by Arbitrator Devlin in the
aforementioned earlier case involving that same College, in
taking into account the overtime hours (which, by that time,
were a maximum of three hours rather than six hours)
contemplated by the workload article:
We also agree with the position taken by the
College that reasonability requires an analysis of the
various individual cases. Here, the argument that
forty-four hours per week is not a maximum and that the
collective agreement contemplates higher loads finds
favour with us. Obviously, if full-time teachers were
30
teaching forty-seven hours as determined by Article 4,
such would not constitute a breach of the collective
agreement. To use the Union argument, if it is
reasonable for a full-time teacher it is difficult to
see how it would be unreasonable for a part-time
teacher.
The relatively wide degree of latitude which the
majority of that Board were prepared to give the College under
that provision is also demonstrated by their conclusions
regarding the two sessionals whose hours were in excess of
forty-seven hours per week. They found it to be not
unreasonable for the College to assign a sessional "a rather
heavier load" (49.35 hours per week) during the first pa~t of
the semester, followed by a lighter load (32.88 hours per
week) during the second half of that semester. Their
conclusion regarding the other sessional, whose "audited SWF"
yielded 48.78 hours per week was:
With respect to the remaining teacher above forty-seven
hours, the Board is not convinced that such gives rise
to a breach such as is suggested by the Union in the
present case. Obviously, certain difficulties will
always be encountered in prognosticating the enrollment
which will finally occur in a particular class. Making
one such error does not seem to be offensive to the
clause in issue.
A number of the general principles set forth in the
preceding cases were consolidated and developed in the
following passage from Arbitrator P.C. Picher's majority award
in Fanshawe College and OPSEU (grievance re sessional teaching
load), supra, at pages 25-26:
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 full-time teachers in
31
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 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
bargainin~ unit.
If the parties 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,
whether it was an unforeseen 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.
The breadth of the flexibility which that approach
provides to the colleges is illustrated by Algonquin College
32
and OPSEU (~rievance 88A791 - Debbie Teskey),.supra~ in which
the majority found an eleven-week sessional teaching load
involving 28 teaching contact hours per week, and yielding a
total workload of approximately 63.5 hours per week, not to be
unreasonable due to the emergency nature of the situation, in
which the College's only other option would have been to
cancel the clinical courses and thereby jeopardize the
students' individual nursing programs by bringing them below
the minimum hours of clinical experience required by the
Ministry.
The arbitral jurisprudence which has developed under
Article 11.05 has also found the colleges to be under no
obligation to provide the Union with SWF's for sessionals (or
for partial-load or part-time teachers). See, for example,
Niagara College and OPSEU (Union Grievance #88B619), supra, at
pages 10-12.
In order to establish a breach of Article 11.05, the
Union must establish, on the balance of probabilities, that
the College has circumvented the provisions of Article 11 by
arranging for unreasonable teaching loads on the part of
persons excluded from the bargaining unit. Although the
grievance also alleges that the College has breached Article
6.02 of the Agreement, a finding that the College has not
exercised its management functions in a manner consistent with
the provisions of this Agreement is, in the circumstances of
this case, dependent upon a finding that sessionals have been
assigned unreasonable teaching loads.
33
Having carefully considered the arbitral
jurisprudence summarized above and the able submissions of
counsel, we respectfully agree that all of the factors listed
in Arbitrator P.C. Picher's majority award in Fanshawe College
and OPSEU (grievance re sessional teachinq load), supra,
are germane to the determination of whether the College has
circumvented the provisions of Article 11 by arranging for
unreasonable teaching loads on the part sessionals. Thus, the
College's policy of precluding departments from assigning
sessionals more than 18 teaching contact hours per week in
post-secondary programs (or more than 20 teaching contact
hours per week in non post-secondary pro~rams) will not
necessarily safeguard it from violating Article 11.05, as
that policy fails to take into account a number of relevant
factors. In assessing the reasonableness of sessional
teaching loads, consideration must not only be given to time
spent in the classroom, but also to time spent outside of
class hours performing tasks such as preparation for teaching,
and preparing and marking tests and assignments. Where time
required for a sessional to evaluate student performance
varies with the number of students (such as where the method
of evaluation involves grading essays, or essay-type tests or
projects), class size must also be taken into account in
determinin~ the reasonableness of a sessional's teaching load.
Consideration must also be ~iven to the time spent outside the
classroom performing related duties such as speakin~ with
students to answer course-related questions, and reading and
34
responding to e-mails and memos.
With the exception of the evidence given by Ms. Watt,
to which we are not prepared to give any weight for the
reasons set forth above, the evidence adduced by the Union in
support of its case consisted almost entirely of the
hypothetical SWF's prepared by Mr. Wiechula. While we have no
doubt that Mr. Wiechula carefully undertook the laborious task
of preparing those hypothetical SWF's, we have found them to
be of limited value in determining whether the College has
contravened Article 11.05, as they have a number of inherent
deficiencies. With the exception of teaching contact hours,
the figures contained in those hypothetical SWF's are at best
rough estimates of the time devoted to preparation,
evaluation, and administration, as they are attributed hours
which have not been proven to accurately reflect the actual
number of hours which the sessionals to whom they pertain
devoted to those tasks. We are satisfied on the totality of
the evidence that those figures tend to significantly
overstate preparation time for sessionals, as the courses
which they teach are usually basic courses involving knowledge
and skills with which they are quite familiar as a result of
their education and experience° Moreover, those figures do
not make any allowance for teaching experience which
sessionals have acquired through teaching similar courses at
other community colleges. We are also satisfied on the
totality of the evidence that the hypothetical SWF's
substantially overstate the amount of time which sessionals
35
likely devote to complementary functions. Full-time faculty
are allotted a minimum of five hours per week for the
performance of those related duties, pursuant to Article
11.01 F. Under that provision, three hours are attributed
"for routine out-of-class assistance to individual students",
and the remaining two hours are attributed "for normal
administrative tasks" The evidence adduced by the College
establishes that sessionals generally receive fewer
College-related e-mails and memos than full-time faculty, and
do not have as many other administrative tasks to perform.
There is no evidence before the Board from which it may
reasonably be concluded that the sessionals in question
actually devoted three hours per week to out-of-class
assistance to individual students. Moreover, since sessionals
are not required to attend departmental meetings and there is
no evidence that any of the hypothetically SWF'ed sessionals
in fact did so, the one-half hour allocated on the
hypothetical SWF's for that purpose is not justified.
In view of our foregoing conclusions regarding the
tendency of the hypothetical SWF's to overestimate preparation
time for sessiona~s and the time which they devote to
complementary functions, and in view of the aforementioned
well-established principle that the overtime hours which are
permissible for full-time teachers (under what is now Article
11.01 J 1) should also be taken into account in determining
the reasonableness of sessional teaching loads, we have
concluded that the hypothetical SWF's establish a prima facie
36
case of unreasonableness only in respect of Ahmad Bashir, Yuri
Felshin, Karl Timmerman, Fiona Woodward (from September to
December of 1999), and Trisha Yeo (from September to December
of 1999). Consequently, we shall now proceed to determine
whether the prima facie case established by the Union with
respect to those five sessionals has been rebutted by the
College.
Messrs. Bashir, Felshin, and Timmerman were
sessionals hired to teach in the College's Information
Technology Department. Evidence concerning their teaching
assignments and the circumstances which led to them being
given those assignments was given by James Waller. After
graduating from the University of Waterloo in systems design
engineering in May of 1998, Mr. Waller worked at the College
as a sessional from September to December of that year. He
became a full-time professor at the College in January of
1999, was appointed as coordinator for the Information
Technology Department in July of 1999, and became the Chair of
that Department in August of 2000.
The Information Technology Department doubled its
enrollment in the late 1990's in order to qualify for funding
which became available under the Ontario Government's Access
to Opportunities (ATOP) program. Several additional full-time
faculty members were hired to accommodate the extra students,
as were a number of sessionals.
Mr. Timmerman worked as a sessional in the Fall of
1999. He was assigned a total of 17 teachin~ contact hours,
37
consisting of five sections of COMP 1078 (Introduction to
Database Concepts) and six sections of COMP 2067 (Application
Development using Visual Basic). It was initially
contemplated that he would have 16 teaching contact hours, but
he agreed to accept an additional hour after another
newly-hired sessional expressed discomfort with the
theoretical material to be covered in COMP 1078 and asked if
it could be reassigned to someone else.
The evidence establishes that COMP 1078 (Introduction
to Database Concepts) is a basic introductory first year
course requiring little preparation by anyone with an
information technology background through which the basic
training prerequisites have been acquired. The course is
presented by using one hour for presentations on conceptual
theory followed by a two-hour "hands on" lab session during
which exercises are completed by students after demonstrations
by the professor. Testing is done through a written multiple
choice format. Lab notes are available for use by teachers of
that course.
COMP 2067 is a more advanced course which examines
the features of the Visual Basic programming language and the
development of information databases using that language. The
course includes demonstrations and lectures, along with
"hands-on, learn-by-doing activities" at a computer
workstation.
The evidence adduced by the College establishes that
it is unlikely that Mr. Timmerman actually devoted as much
38
time to preparation and evaluation as suggested by his
hypothetical SWF. The same is true of the time allocated for
complementary functions.
Mr. Timmerman was dismissed near the end of the Fall
Semester (for reasons which are not germane to the instant
case). His dismissal necessitated the reassignment of the two
courses (totalling between 12 and 15 contact hours per week)
which he was to have taught during Winter Semester. Around
that same time, another sessional (Danny Roy) indicated that
he would not be available to teach during the Winter Semester,
necessitating the reassignment of an additional 15 to 17
contact hours. Further scheduling pressure was created
just before the Christmas break when Andrew Kemeni (who had
taught a partial load during the Fall semester) announced that
he would be unable to return in the next semester, and when
the Department received approval to add two additional
sections (comprised of a mixture of new first year students
and existing first year students repeating courses in which
they had been unsuccessful during the Fall Semester). The
chaotic state of the Department was further exacerbated when a
sessional who had been hired on the Friday before classes were
scheduled to resume notified the College on the following
Monday that he would be unable to honour his commitment.
Moreover, COMP 2085 had to be rescheduled to be delivered
during the first seven weeks of the Winter Semester in order
to permit the delivery of COMP 2075 (Client/Server Data Base
Application Development using Visual Basic) to be deferred
39
until the beginning of March when it was hoped that a
qualified teacher could be found to deliver it in a seven-week
compressed format instead of the fourteen-week format which
had originally been contemplated but which had to be abandoned
because of the lack of availability of a qualified teacher.
When a suitable candidate had not been found by the beginning
of March, the College retained the services of Yuri Felshin
through a consulting company. Mr. Felshin was also assigned
some of the courses and labs which had to be covered during a
full-time faculty member's maternity leave. The College
resorted to the unusual and costly step of retaining teaching
services through a consulting company because students had
already been inconvenienced by the deferred commencement of
COMP 2075 and having a qualified person available to teach the
course at the beginning of March had become critical to the
credibility of the program.
In addition to six sections of COMP 2075, Mr. Felshin
was assigned two sections of COMP 1065 (Introductory
Programming using Java). Although his assigned teaching
contact hours totalled only 16, he had a total of 500 students
and 1250 student ~ontact hours per week. COMP 2075 is more
advanced than a first year course and would require
approximately the amount preparation time predicted by the
hypothetical SWF. Some preparation time would also be
required for COMP 1075, which is lecture course. However,
evaluation time for that course would be minimal as it is
graded by means of multiple choice questions.
40
Ahmad Bashir was also hired to teach.in the
Information Technology Department as a sessional during the
Winter Semester of the 1999-2000 academic year. Mr. Bashir
had a Bachelor of Engineering Degree (in Electronic
Engineering) from NED University Karachi, and a Master of
Science Degree (in Computer Engineering) from Boston
University. He also had over ten years of experience teaching
computer sciences, computer studies, and electronics, at
various colleges and universities, including Seneca College
(where his duties in the School of Computer Studies included
teaching courses pertaining to Visual Basic and Microcomputer
Operating System (Windows 98 and Windows NT), supervising
laboratory work, and performing related assignments) and
Centennial College (where his duties in the School of
Engineering and Technology included teaching courses
pertaining to Micro Processors and Computer in Electronics
(Windows, Word and Excel), supervising laboratory work, and
performing related assignments).
One of the courses which Mr. Bashir was initially
assigned to teach was COMP 2068. However, shortly before the
Christmas break Mr. Bashir expressed some discomfort with the
course material. Consequently, that course was reassigned to
a full-time faculty member (who was paid overtime for teachin~
it). In place of that course, Mr. Bashir was assigned COMP
1030 (Information Systems). At the commencement of the winter
semester, the teaching contact hours assigned to Mr. Bashir
totalled 16 hours per week. However, early in that semester
41
they were increased to 19 hours per week due to the
aforementioned addition of two more first year sections and
due to the need to revise assignments in order to accommodate
the aforementioned rescheduling of COMP 2085 for delivery
durin~ the first seven weeks of the winter semester. Thus,
Mr. Bashir's sessional teaching load durin~ the Winter
Semester of the 1999-2000 academic year ultimately consisted
of one section of COMP 1030 (Information Systems), one section
of COMP 1076 (Computer Architecture Fundamentals), three
sections of COMP 1078 (Introduction to Database Concepts), and
four sections of COMP 1079 (Desktop Database Pro~rammin~), for
a total of 19 teachin~ contact hours per week. He had a total
of 438 students and 924 student contact hours per week.
The evidence establishes that, like COMP 1078,
COMP 1079 ("Desktop Database Pro~rammin~") is a basic
introductory first year course requirin~ little preparation by
anyone with an information technolo95; back~round. Extensive
resource material is available for use by teachers of that
course, includin~ sessionals.
Mr. Waller acknowledged durin~ the course of his
testimony that class size and method of evaluation are factors
to be considered in determining the reasonableness of
sessional teachin~ loads. He also testified that those
faCtors are considered in a non-numerical way in assi~nin~
teachin~ loads to sessionals. It was also his evidence that
in determinin~ how much preparation time will be needed,
consideration is ~iven to whether the sessional has taught
42
something similar before, and to whether they.are being
assigned to teach multiple sections of the same course.
It is clear from the totality of the evidence that
the courses assigned to Messrs. Bashir, Felshin, and Timmerman
could not readily have been covered by full-time instructors
as there were no full-time instructors available to cover
their courseloads. Moreover, the aforementioned highly
unusual events which occurred in the Information Technology
Department during the 1999-2000 academic year created an
unavoidably chaotic situation which necessitated the
assignment of heavier teaching loads to those three sessionals
than would otherwise have been justifiable.
Having regard to all of the evidence and to the
factors listed in Fanshawe College and OPSEU (grievance re
sessional teaching load), supra, we have concluded that it has
not been established on the balance of probabilities that the
College arranged for unreasonable teaching loads on the part
of Messrs. Bashir, Felshin, and Timmerman. However, we find
it appropriate to note for the future ~uidance of the parties
that in the absence of the highly unusual circumstances which
existed in the Department during the aforementioned time
frame, we might well have found the teaching loads assigned to
those three sessionals to be unreasonable.
As indicated above, the hypothetical SWF's prepared
by Mr. Wiechula also establish a prima facie case of
unreasonableness in respect of the teaching loads assigned to
Fiona Woodward and Trisha Yeo during the period from September
43
to December of 1999. The College's evidence concerning their
teaching loads was given by Hilde Zimmer, who has held a large
variety of positions during the thirty years that she has been
employed by the College, and who was the Chair who made the
impugned assignments to those two sessionals.
Ms. Zimmer hires sessionats primarily to cover
additional sections of courses necessitated by unexpected
enrolment or by unexpected variations in the ratio between
regular and remedial classes, and to cover unexpected absences
of full-time teachers. New students are assessed for English
and mathematical skill levels, and are placed in either the
regular stream or the remedial stream (in English and/or
mathematics) on the basis of that assessment. The College
generally schedules regular sections and remedial sections on
a ratio of 2:1, but the actual split is not known until after
the students have been assessed. If it becomes necessary to
schedule additional regular or remedial sections of a
particular course, the additional sections have to be
"stacked", i.e., scheduled to occur at the same time as the
other sections of that course. Consequently, it is not
possible to merely add them to the courseload of a teacher who
is already teaching one of the sections.
When hiring sessionals, Ms. Zimmer looks for people
who are familiar with the material to be taught and who are
able to go directly into the classroom. In many cases, the
people whom she hires have taught very similar courses in the
College's continuing education program, at another college, or
44
at a university. She meets with each sessional to 9o over the
course outline and to ensure that they are comfortable with
the course content.
Durin9 the Fall Semester (from September to December
of 1999), Ms. Woodward taught two sections of ENGL 1003 (also
known as COMM 1003, Skills for College English), two sections
of COMM 1007 (College English), and two sections of COMM 1034
(Professional Communications I). She had a B.A. in English
and Psychology, an M.A. in English Literature and Language,
and a more recent M.A. in English Literature (the latter
havin9 been obtained with a view to 9ainin9 admission to a
Ph.D. program). Her previous teachin9 experience included
teachin9 English as a Second Language at St. Clair College,
Humber College, and George Brown College, as well as teachin9
English Literature and Language at the secondary school level
in Bermuda, at a junior college in Michigan, and as a
University teachin9 assistant. She also had editorial
experience in the publishin9 industry.
Durin9 the period from September to December of 1999,
Ms. Yeo taught one section of ENGL 1003, two sections of COMM
1007, and one section of COMM 3002. She had a B.A. and M.A.
in English, and had been workin9 on a Ph.D. in English for six
years (which she anticipated completin9 the followin9 year).
She had five years of teachin9 experience as a tutorial leader
in the Department of English at York University, where she had
recently won the Department's Award for Excellence in
Teachin9.
45
ENGL 1003 (Skills for College English) is a
non-credit, preparatory course which focuses on written and
oral communication. It is a very basic course which would
require little preparation by sessionals having the
educational qualifications and previous teaching experience
possessed by Ms. Woodward and Ms. Yeo. Students are graded on
a "pass" or "fail" basis, with their evaluation being based
upon written assignments, oral presentations, classroom
exercises, quizzes and tests.
COMM 1007 (College English) is the required
foundation course in communications, and is a prerequisite for
all additional or advanced courses in writing and speaking.
The course focuses upon learning effective strategies to
inform and persuade. It combines several methods of
instruction, including lectures, discussions, group work, and
oral expression. Students are graded on the basis of a paper
prepared during a two-hour class at the end of the semester.
We are satisfied on the totality of the evidence that it would
not be an onerous course for sessionals having the educational
qualifications and previous teaching experience possessed by
Ms. Woodward and Ms. Yeo. Consequently, we find that their
hypothetical SWF's overstate by at least 50% the amount of
time which they likely devoted to preparation in respect of
that course.
The same is true of the portion of Ms. Woodward's
hypothetical SWF pertaining to preparation for COMM 1034
(Professional Communications I). That course teaches students
46
to choose and apply appropriate forms and rhetorical
strategies to professional settings. It also combines the
aforementioned methods of instruction. However, we accept as
reasonably predictive the portion of her hypothetical SWF
pertaining to that course's evaluation, which is based upon
written assignments (60%), oral presentations (20%), and
quizzes, exercises, and participation (20%).
We also accept as reasonably predictive the portion
of Ms. Yeo's hypothetical SWF pertaining to COMM 3002.
In the absence of any direct evidence from Ms.
Woodward or Ms. Yeo (or any of the other sessionals employed
by the College), it is not possible to precisely determine how
many hours per week they actually worked in fulfilling the
duties of their sessional appointments. However, having
regard to all of the oral and documentary evidence adduced
concerning the nature of the courses they were assigned to
teach, their educational qualifications, and their previous
teaching experience, we find that the College has rebutted the
prima facie case of unreasonableness established by the
hypothetical SWF's prepared by Mr. Wiechula in respect of the
teaching loads assigned to Ms. Yeo and Ms. Woodward during the
period from September to December of 1999.
Although we have concluded that the grievance must be
dismissed because the Union has failed to establish on the
balance of probabilities that the College has circumvented the
provisions of Article 11 by arranging for unreasonable
teaching loads on the part of sessionals in violation of
47
Article 11.05 (or of Article 6.02), for the future guidance of
the parties we find it appropriate to reiterate our
aforementioned conclusion that the College's policy of
precluding departments from assigning sessionals more than 18
teaching contact hours per week in post-secondary programs (or
more than 20 teaching contact hours per week in non
post-secondary programs) will not necessarily safeguard it
from violating Article 11.05, as that policy fails to take
into account a number of relevant factors. In assessing the
reasonableness of sessional teaching loads, consideration must
not only be given to time spent in the classroom, but also to
time spent outside of class hours performing tasks such as
preparation for teaching, and preparing and marking tests and
assignments. Where time required for a sessional to evaluate
student performance varies with the number of students (such
as where the method of evaluation involves grading essays, or
essay-type tests or projects), class size must also be taken
into account in determining the reasonableness of a
sessional's teaching load. Consideration must also be given
to the time spent outside the classroom performing related
duties such as s~eaking with students to answer course-related
questions, and reading and responding to e-mails and memos.
As indicated in Fanshawe College and OPSEU (grievance re
sessional teaching load), supra, other factors which may
properly be taken into consideration include whether the
teaching load assigned to a sessional exceeds the maximum
established for full-time teachers including allowances for
48
permissible overtime, the reason for the sessional
appointment, whether there is a practical alternative, whether
the person involved is particularly suited to the assignment,
whether it is lon9 term or short term, and whether it could be
covered by full-time instructors.
Although the A~reement does not require the College
to prepare SWF's re~ardin~ sessionals, it might well be
advised to do so (with appropriate adjustments to reflect the
lesser amount of time which sessionals are expected to devote
to complementary functions) as they would serve to alert the
College to situations in which teachin~ loads assigned to
sessionals might be violative of Article 11.05. Moreover,
voluntarily providin~ such SWF's to the Union would likely
improve the relationship between the parties by en~enderin~ a
~reater level of cooperation and trust, and by obviatin9 the
Union's need to resort to protracted arbitration proceedings,
at substantial cost to both parties, in order to obtain
through production orders relevant information concernin~ the
College's use of sessionals.
In accordance with the a~reement of the parties, we
remain seized of 9rievance #00-30 (OPSEU File No. 01C039). If
the parties are unable to resolve that ~rievance on the basis
of this award, it will be scheduled for hearin~ at the request
of either party.
49
DATED at Burlington, Ontario, this 21st day of December, 2002.
Robert D. Howe
Chair
I concur.
"Rene St. Onge"
College Nominee
50
DIS SENT
With all due respect this member must dissent, at least in part, from the award of the
majority.
The first item of dissension is with regards to the exclusion of evidence from Ms.
Elizabeth Watt. Ms. Watt settled her own personal grievances with the college. The union
specifically and in writing withdrew from the terms of the settlement, (page 2, item 1)
executed on the 3rd day of August 1999. Ms. Watt specifically acknowledged she had no
personal remedy available to her with the regards to the instant case.
Ms. Watt is representative of the atiermath of extensive lay-offs of the mid 90's. This was
a period which saw a multitude of long term faculty members from many colleges
terminated, followed by a corresponding increase in the use of non-bargaining unit
employees. Those rehired on individual contracts of employment, similar to Ms. Watt
were assigned more courses, accommodating more students than their full time
counterparts. Ms. Watt in particular, taught some of the courses she had taught
previously, supplemented by two or three additional courses, and/or extra students. When
Ms. Watt inquired as to the excessive numbers of students in her courses, she was
informed that they could not be placed with a full time faculty member, as it would result
in overtime for the faculty involved. An examination of Ms. Watt's SWF's (pre -lay-off)
in general, reveal class sizes of 35; her "sessional" courses, 40-60.
Mr. Timmerman taught 710 students.
Mr. Ahmad Bashir taught 438 students.
Mr. Abid Rani taught 420 students.
Mr. Yuri Felshin taught 500 students.
Faculty similarly situated 2-300.
Communication type courses reveal total student loads to sessionals, well over two
hundred students. The primary evaluation method of students in these courses is written,
either reports or essays. Evaluation of, for example, the teaching load of Fiona Woodward . f'~
involves the adjudication of 228 students, approximately three times.per semester for
individual student achievements of over 30 course outcomes.
With the exception of "attendance at departmental meetings" the college witnesses
acknowledged that during the teaching periods, sessional teachers had essentially
the same professional duties and commitments as their full time counterparts.
This member agrees that "estoppel" ended preceding the evidence adduced in this case but
disagrees that the Union acquiesced for the period following Mr. Lord's memo. The
Union was satisfied with the college's new policy ( Exhibit 42) introduced in Feb. 1989
that limited the use of sessionals to "replacing a___ full-time teacher on an approved leave or
teaching a new course or program of which the continuation is doubtful. Approval for the
use of sessional teachers in any other instance will be by agreement between the college
and the Union."
This member concurs with the Chair in the recognition that the college policy permitting
the loading of sessionals to 18 teaching contact hours is inadequate. In fact all of the
evidence from the college's own witnesses acknowledged its inadequacy.
The three witnesses all testified that in the hiring of sessionals they examined the
qualifications and assignments with regards to the following criteria:
Previous teaching experience
Preparation and evaluation time of the courses assigned
Sessional appointee's col~rfort level with materials to be taught
Educational/employment background and achievements in their discipline
Preferences of full time faculty with regards to courses or timetabling
Availability of existing course outlines and materials
Availability of others to assist the sessional
Availability of a full time faculty member to teach the course offerings
All of the college's witnesses testified that they could not share this information with the
union in its pursuit to police their contract.
The only method the Union currently has at its disposal to ensure these criteria are
reviewed objectively and consistently is through the forum of arbitration.
I join the majority recommending that the college voluntarily SWF sessional appointments.
It is the position of this member that the union produced aprimafacie case indicative of a
breach of 11:05 and the majority errs in accepting the subjective evidence of the college
witnesses.
With the exception of courses actually taught by the college' s own witnesses, the
assessment of the work performed by sessionals is subjective and assessed by an employer
cash strapped by current funding restrictions, challenged by time tabling and new course
offerings but at the same time in an enviable labour market climate. The lay-offs have lef~ a
substantial labour pool of well qualified individuals available to the colleges (as indicated
by the resumes in evidence) in the GTA. The union established its case on documents
created by the employer. The course outlines and excessive student numbers are a matter
of record. Overloading courses and student numbers affects the full time faculty for
overtime hours and perpetuates the loss of full time and partial load hires. The college did
not satisfy the onus that sessionals were not used in excess of 11:05.
The Union grievance, although urging this Board to read the collective agreement as a
whole did not seek remedy under Article 2, a fact which has troubled this member in terms
of remedy from the begirming. The remedy to the abuse of sessional appointments is not to
hire more sessionals, but for the employer to satisfy its obligations under Article 2.
All of which is respectfully submitted by Union nominee, Sherril Murray