HomeMy WebLinkAboutUnion 93-05-10IN THE MATTER OF AN ARBITRATION
LAMBTON COLLEGE
(The College)
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF A.~NION GRIEVANCE - #92G355
BOARD OF ARBITRATION: Kenneth P. Swan, Chairman
D. Guptill, College Nominee
Sherril Murray, Union Nominee
APPEARANCES:
For the College: Ann Burke, Counsel
Guy Bertrand, Vice-President, Human
Resources
Terry Blundell, Vice-President,
Academic
For the Union: Michael McFadden, Counsel
Bill Arnold, President, Local 125
AWARD
A hearing in this matter was held in Sarnia, Ontario on
April 21, 1993, at which time the parties were agreed that the
board of arbitration had been properly appointed, and that we had
jurisdiction to hear and determine the matter at issue between
them. That matter is a Union grievance, #92G355, filed by the
President of the Local Union on September 22, 1992.
The text of the grievance is as follows:
STATEMENT OF GRIEVANCE
College Policy as expressed in Union-Management meeting
of September 17, 1992 in response to Union complaint
concerning the assignment of excess teaching weeks to
some members during the 1991-1992 academic year violates
Collective Agreement Articles 7.01, 7.02 and 4.01(2) (a).
SETTLEMENT DESIRED
1. Declaration of violation
2. Cease and desist from assigning weeks of teaching
in excess of Article 4.01(2) (a) limits.
At the outset of the hearing, the parties indicated that
they had been able to agree upon a statement of facts. That
statement, which they stipulated to be without prejudice to any
position which either party might take in respect of any other
grievance, is as follows:
1. Prior to the Fall of 1992, the College typically
commenced classes on the 1st day after Labour Day.
2. In the Fall of 1992, the College commenced classes
on August 31.
3. By the end of June, 1992, some teachers had reached
their maximum workload limit when expressed in terms of
weeks within which there are teaching contact hours
("TCH").
4. If August 31 is included as a work day to be
attributed to the 1991-1992 year, nonetheless no teacher,
by virtue of having a TCH on August 31, exceeded the
allowable maxima for TCH, whether expressed as total TCH
per year or total number of days within which there were
TCH's.
Articles: 4.01(ll)(a) (180 or 190 TCH days)
4.01(11) (c) (648 or 748 TCH total)
5. The 1991-92 academic year began on Monday August
26th, 1991 and ended Friday June 19th, 1992.
6. The 1992-93 academic year began on Monday August
24th, 1992 and will end on Friday June 18th, 1993.
7. All professors signed their SWF's for Fall 1992
which indicated that the SWF period would start August
31st, 1992. No professor used the provisions of art.
4:02 with respect to those SWF's. The CWMG did not
receive any complaints nor was anything concerning this
grievance referred to a WRA.
8. The College is not taking issue with the form of
this grievance nor the failure to file workload griev-
ances under art. 4:02.
9. The union is not taking issue with the "feasibility"
of starting the academic year, as noted above, as that
term is used in art. 4:03.
10. The union does not seek any monetary award as a
result of this grievance.
Some problems in numbering collective agreement provi-
sions arise from a change in the collective agreement during the
course of the events from which this grievance arises, and the
processing of the grievance itself. It was agreed, however, that
the applicable collective agreement is that which, on its face, was
in effect from September 1, 1989 to August 31, 1991. In that
collective agreement, the following are the relevant provisions:
Article 4
WORKLOAD
4.01 (1) Each teacher shall have a workload that
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adheres to the provisions of this Article.
4.01 (2) (a) Total workload assigned and attributed
by the College to a teacher shall not exceed forty-four
(44) hours in any week for up to thirty-six (36) weeks in
which there are teaching contact hours for teachers in
post-secondary programs and for up to thirty-eight (38)
weeks in which there are teaching contact hours in the
case of teachers not in post-secondary programs.
The balance of the academic year shall be
reserved for complementary functions and professional
development.
Workload factors to be considered are: (i) teaching contact hours
(ii) attributed hours for preparation
(iii) attributed hours for evaluation and
feedback
(iv) attributed hours for complementary
functions
4.01 (2) (b) A "teaching contact hour" is a College
scheduled teaching hour assigned to the teacher by the
College.
4.01 (3) Each teaching contact hour shall be
assigned as a fifty (50) minute block plus a break of up
to ten (10) minutes.
The voluntary extension of the teaching contact
hour beyond fifty (50) minutes by the teacher and any
student(s) by not taking breaks or by re-arranging breaks
or by the teacher staying after the period to consult
with any student(s) shall not constitute an additional
teaching contact hour.
4.11 (11) (a) Contact days (being days in which one
or more teaching contact hours are assigned) shall not
exceed one hundred and eighty (180) contact days per
academic year for a teacher in post-secondary programs or
one hundred and ninety (190) contact days per academic
year for a teacher not in post-secondary programs.
4.11 (ll)(b) Weekly contact hours assigned to a
teacher by the College may be scheduled into fewer than
five (5) contact days'and such compressed schedule shall
be deemed to be five (5) contact days.
4.11 (11) (c) Teaching contact hours shall not
exceed six hundred and forty-eight (648) teaching contact
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hours per academic year for a teacher in post-secondary
programs or seven hundred and sixty (760) teaching
contact hours per academic year for a teacher not in
post-secondary programs.
4.11 (11) (d) Compensation for work in excess of the
maxima set out above shall be paid by the College to the
teacher on the basis of:
(i) 1/180 or 1/190 respectively of the teacher's
annual salary for each contact day in excess
of the 180 or 190 contact day annual maximum;
(ii) 0.1% of the teacher's annual salary for each
teaching contact hour in excess of the 648 or
760 teaching contact hour annual maximum.
Such compensation shall be for the greatest
amount and shall not by pyramided under this clause or
under 4.01(10).
4.03 The academic year shall be ten (10) months in
duration and shall, to the extent it be feasible in the
several colleges to do so, be from September 1 to the
following June 30. The academic year shall in any event
permit year-round operation and where a College deter-
mines the needs of any program otherwise, then the
scheduling of a teacher in one or both of the months of
July and August shall be on a consent or rotational
basis.
Article 5
VACATIONS
5.01 (1) A full-time employee who has completed one
full academic year's service with the College shall be
entitled to a vacation of two months as scheduled by the
College.
5.01 (3) It is understood that the above provisions
for vacations are not intended to prohibit Colleges from
scheduling non-teaching periods at Christmas and New
Year's or at any other mid-term break.
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Article ?
MANAGEMENT FUNCTIONS
7.01 It is the exclusive function of the Colleges
to:
(a) maintain order, discipline and effi-
ciency;
(b) 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.
(c) to manage the College and, without re-
stricting the generality of the fore-
going, 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 res-
ponsibilities not specifically modified
elsewhere in this Agreement.
7.02 The Colleges agree that these functions will be
exercised in a manner consistent with the provisions of
this Agreement.
The Union submits that, by requiring classes to commence
on August 31, 1992 for the 1992-93 academic year, the College is in
breach of clause 4.01(2) (a). The argument is that, since August 31
falls in the same "temporal year" as all of the teaching weeks in
the 1991-92 academic year, then it must be seen as part of a
further week in that academic, year. As a consequence, those
teachers identified in paragraph 3 of the statement of facts who
had already reached the maximum number of allowable teaching
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contact weeks by the end of June 1992 would therefore be teaching
in one extra week in the same "temporal year", and they would
therefore be over the prescribed limit for teaching assignments
based upon weeks in which teaching contact hours occur.
The concept of "temporal year" does not occur in the
collective agreement. The Union argues, however, that the
definition of academic year in clause 4.03 as "ten (10) months",
and the definition of the vacation entitlement in subclause 5.01(1)
as "two (2) months" constitutes the creation of the concept of a
twelve month period in which both the academic year and the two
month vacation must fit. While the Union concedes that the
definition of the academic year in clause 4.03 is sufficiently
flexible to permit the College to move the start and finish dates
of the academic year around slightly, the Union asserts that the
College is not allowed to overlap contiguous "temporal years" so as
to disadvantage academic employees. The Union further argues that,
to whatever extent the management rights clause, Article 11,
permits scheduling of the academic year by the College, such
scheduling must, by virtue of clause 7.02, be consistent with the
provisions of the collective agreement. The Union argues that it
must be consistent not only with specific provisions, but also with
the essence of the collective agreement, read as a whole.
The College argues, quite simply, that the collective
agreement contains no concept of "temporal year", and that there
has been no breach of any specific provisions of the collective
agreement in relation to either teaching contact hours, or days on
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which teaching contact hours occur. Moreover, given that the
parties have agreed that the academic year 1991-1992 ended on June
19, 1992, and the 1992-1993 academic year began on August 24, 1992,
there can be no question that any contact hours which occurred on
'August 31 occurred in a week which was a part of the 1992-93
academic year, and such hours cannot therefore be allocated to the
1991-92 academic year to create the notional violation of the
collective agreement which the Union claims.
The problem from which this grievance arises is known to
all academic institutions. The difficulty is that the solar and
lunar cycles on which we have based our calendar are not regular in
themselves, nor synchronized with each other. As a result, Labour
Day, which is always the first Monday of September and traditional-
ly the day after which classes begin after the summer break, has an
awkward tendency to move backward in date from September 7 to
september 1, skipping a day in leap years to add to the confusion.
There are various ways to make an academic year fit
around this moving target, all of which have both supporters and
detractors. In the present case, the College, which had "typical-
ly'' resolved the problem by starting classes on the first day after
Labour Day, determined instead to start classes on the Monday
before Labour Day, August 31. In that year, Labour Day was on
September 7, which is the latest date on which it can possibly
occur, and so the College's solution was one chosen in light of the
most extreme scheduling problem which the perambulations of Labour
Day can present.
contac% hou~, %he total 'l~.~ttv~,~:r' ~:,f d.~ys ~,n wlli~ t~ai;'l].~r~.9 {;oll'~:,ac~.
b~i~nln9 ~n August ~4~ 19~.:~ "~:[~e~:,e i~ 110 ~,estion of
conceding that, ~or th~ 1;,Uz:'t;~m~:~:. Of ~i~; grie~noe, ~[.~::, 'ara~', not
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think that the only possible result of this arbitration is that the
grievance must be denied.
Therefore, while we can understand that the extreme
difficulties of scheduling in a year in which Labour Day falls on
September 7 stretch the ingenuity of the College and give rise to
legitimate concerns on the part of the Union, in the particular
circumstances of this case we can only find that what was done is
within the express and implied limitations of the collective
agreement, and that there has been no breach for which we can
provide a remedy.
DATED AT TORONTO this 10th day of May, 1993.
~"~~n
I concur "D. Guptill"
D. Guptill, College Nominee
I concur "Sherril Murray"
Sherril Murray, Union Nominee