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HomeMy WebLinkAboutGroup 97-12-08IN THE MATTER OF AN ARBITRATION BETWEEN: MOHAWK COLLEGE (The College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF GROUP GRIEVANCES - #94A 443 & #94A444 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman Peter M. Hetz, College Nominee Jon McManus, Union Nominee APPEARANCES: For the College: D.K. Gray, Counsel Z. Ullah, Director, Human Resources For the Union: David Wright, Counsel Robert A. Pando, President, Local 240 Mike Walton, Chief Steward, Local 240 A WARD This arbitration concerns two grievances consolidated by agreement of the parties. Both are group grievances filed on November 30, 1993. Grievance 94A443 relates to post-secondary faculty, while Grievance 94A444 relates to non-post secondary faculty. Both grievances relate to the way that the College has applied unpaid leave days under the Social Contract Act, 1993. Most of the facts on which this matter is to be determined are not really in dispute. The Social Contract Act, 1993, had as its central purpose to reduce public sector compensation costs. The Act was designed to encourage the negotiation of framework agreements for sub-sectors of the public sector, and local agreements based on those framework agreements, which would then effectively become part of the particular collective agreements between the local parties. In the academic bargaining unit of the Colleges of Applied Arts and Technology, however, no local agreements came into effect, and therefore the impact of the Social Contract Act, 1993 on the employees affected by the present grievances comes only from the so-called "fall-safe" pro(,isions found in Part VII of the legislation. Specifically, sub-section 25(1) of the legislation provides that "an employer may require employees to take unpaid leaves of absence" where necessary to meet the expenditure reduction target established under the legislation. Sub-section 27(1) requires the employer, in certain circumstances, to use unpaid leaves of absence as an expenditure reduction mechanism before other actions to limit expenditures may be taken, and clause 27(1) (b) requires the employer to "develop a program setting out the manner in which these leaves are to be implemented". To expand somewhat the statutoo' basis for this requirement, Ontario Regulation 590/93, dated September 30, 1993, defined the relevant expressions as follows: -2- 5. In Part VII of the Act, "unpaid leave" and "unpaid leave of absence" mean a leave of absence without pay that is, (a) the whole of an employee's regular work day; or Co) half of an employee's regular work day, if the half day of leave begins at the beginning of the employee's regular work day or ends at the end of the employee's regular work day. Such a program was apparently developed centrally by the Ontario Council of Regents for all of the colleges, and was then applied by the present college to its academic staff. The relevant provisions of that program are as follows: 5. IMPLEMENTATION OF UNPAID LEAVES OF ABSENCE 4.1 Subject to 4.4, 4.5, 4.6 and 4.7, employees covered by this Program, except employees referred to in 1.3, shall take 6 unpaid leave days during the period commencing with the day of posting under section 29 of the Act and ending March 31, 1994. 4.2 Subject to 4.3, 4,4, 4.5, 4.6, and 4.7, employees covered by this Program, except employees referred to in 1.3, may be required to take up to 12 unpaid leave days during each of the annual periods ending March 31, 1995 and March 31, 1996. -3- 4.3 If unpaid leave days referred to in 4.2 are required, the number in each year will be specified in amendments to this Program to which sections 30 and 31 of the Act will apply. 4.4 Employees who are hired by the Colleges and work less than any of the periods ending March 31, 1994, 1995 and 1996, as referred to in 4.1 and 4.2, will be required to take a prorated number of releVant unpaid leave days. 4.5 Employees who regularly work less than a complete year will be required to take a prorated number of the relevant unpaid leave days. 4.6 For greater certainty, for the purpose of 4.4 and 4.5, the regular vacation period shall be considered time worked. 4.7 In the calculation of the number of unpaid leave days, in order to ensure that the annual earnings of an employee do not fall below $30,000.00, the number of unpaid leave days required to be taken shall be reduced if necessary. 5. SCHEDULING OF LEAVES 5.1 Subject to 5.2 and 5.3, unpaid leave days will be scheduled by the Colleges, taking into consideration the employee's wishes subject to operating -4- exigencies. As far as possible, unpaid leave days will be scheduled with mutual consent. 5.2 In the absence of mutual consent, College management shall assign the unpaid leave days. 5.3 Notwithstanding 5.1, College management may schedule unpaid leave days by specifying a specific day or days as a partial or complete shutdown for a work unit. 5.4 Where the College elects to apply 5.3, employees described in 1.3 may, at the election of the College, be paid for the day or days in question, assigned work on the day or days in question, or reassigned other work days, so that their earnings are not adversely affected. By memorandum dated August 18, 1993, the College established three "corporate" closure days on September 3 and December 24, 1993, and February 25, 1994. All of these days were during non-teaching periods, in the sense that no classes were the scheduled. While some post- secondary faculty were required to take an earlier day offrather than February 25, the day chosen was also in a non-teaching period, so the same principle applies for all faculty in relation to the corporate closure days. -5- Beyond those three days, post-secondary teachers were allowed, if they wished, to schedule the other three required unpaid leave days on days which would otherwise have been teaching contact days. It appears, however, that no one did, and that all took non-contact days by choice. Non-post-secondary faculty, however, were required to take the other three days off on non- contact days. The grievances thus specify three days and six days respectively as the days on which the Union alleges that the scheduling of unpaid leave constitutes a breach of the collective agreement, even as modified by the Social Contract Act, 1993 and the fail-safe program developed pursuant to that legislation. A detailed correspondence subsequently ensued between the local Union and the College. The Union took the position that non-contact days constituted ordinary working days for faculty, involving work which was essential to the delivery of the academic program. In effect, the Union argues that since the full academic program continued for non-post-secondary teachers insofar as contact hours was concerned, and was largely continued for post-secondary teachers, an unpaid leave day on a non-teaching day really meant a day on which the employee was unpaid, but could not constitute a day of leave since all of the ancillary duties normally scheduled on a non-contact day in support of the academic program would still have to be performed if the full program were to be delivered on the contact days. Such work as preparation, marking, meetings, non-formal interaction with students, professional development and course administration would all have to be carded out, and since the academic program being delivered was unchanged, or largely unchanged, the same amount of non-contact work would be required for its delivery. The Union's evidence is that, although some faculty members attempted to negotiate unpaid leave on contact days, ultimately all non-post-secondary professors took unpaid leave on non- -6- contact days under protest, while post-secondary professors took contact or non-contact days at their own discretion for the three days which were not specified as corporate closure days. The evidence is that there was no corresponding diminuation of work equivalent to the unpaid time off. Non-post- secondary professors were said to have conducted "business as usual" in order to achieve all of the non-contact tasks required in support of a full load of contact days, and post-secondary professors were said to have been required to deliver the same course content, with the associated non-contact duties, even had they actually reduced the number of contact hours by taking an unpaid leave day on a day which would normally have included teaching. In effect, therefore, the grievance is for overtime work performed, whether on the unpaid leave days themselves or at some other time outside the normal work schedule, in order to perform the work necessary to support the academic program which would ordinarily have been performed on the unpaid leave days. The College's evidence was to the effect that the College expected that no work of any kind would be done on the unpaid leave days, and that no one was ever expected or required to make up any work. No written directives were given as to what part of the normal workload should be abandoned, because every faculty member would have a different schedule and a different mix of non-contact duties to perform. The College lef~ the decision as to which duties should be abandoned to individuals, and if any questions should arise those individuals could take them up with their supervisors. No duties were reassigned, no specific reductions in course content were specified, and no one was questioned or challenged as to the precise re-alignment of his or her own duties which he or she decided to implement. In the Apprenticeship Department, some correspondence was exchanged between Union representatives and management on how unpaid leave days were to be scheduled. That -7- ultimately resulted in a directive from management that professors, all of whom are non-post- secondary teachers, should choose.one of their weekly non-contact days as an unpaid leave day, and should "stay away from the college" on that day. No further direction was given, however, in relation to re-allocation of the work which would normally been done on that day. Article 11 of the collective agreement is a very detailed code, negotiated between the parties, as to how teachers are to be assigned work. It is of some assistance to quote in full some of these provisions: 11.01 A Each teacher shall have a workload that adheres to the provisions of this Article. 11.01 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 non 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 11.01 B 2 A "teaching contact hour" is a College scheduled teaching hour assigned to the teacher by the College. Clause 11.01 D includes a detailed formula for calculation of attributed hours for preparation, while -8- 11.01 E provides for the calculation of attributed hours for evaluation and feedback. 11.01 F provides for a weekly allowance for certain complementary functions, specifically routine and out-of- class assistance to individual students and normal administrative tasks. Article 11 also provides for scheduling of. the assigned workload in the following provisions: 11.01 G 1 Where preparation, evaluation, feedback to students and complemen- tary functions can be appropriately performed outside the College, scheduling shall be at the discretion of the teacher, subject to the requirement to meet appropriate deadlines established by the College. 11.08 In keeping with the professional responsibility of the teacher, non- teaching periods are used for activities initiated by the teacher and by the College as part of the parties' mutual commitment to professional- ism, the quality of education and professional development. Such activities will be undertaken by mutual consent and agrekment will not be unreasonably withheld. Such activities will neither be recorded nor scheduled except as in accordance with 11.01 G 1. Finally, the class definition of the professor classification provides an overview of the duties and responsibilities of members of the academic bargaining unit engaged in teaching which lends some flavour to the arguments of the parties: CLASS DEFINITION PROFESSOR Under the direction of the senior academic officer of the College or designate, a Professor is responsible for providing academic leadership and for developing an -9- effective learning environment for students. This includes: (a) The design/revision/updating of courses, including - consulting with program and course directors and other faculty members, advisory committees, accrediting agencies, potential employers and students; - defining course objectives and evaluating and validating these objectives; - specifying or approving learning approaches, necessary resources, etc. - developing individualized instruction and multi-media presentations where applicable; - selecting or approving textbooks and learning materials. b) The teaching of assigned courses, including: - ensuring student awareness of course objectives, approach and evaluation techniques; - carrying out regularly scheduled instruction; - tutoring and academic counselling of students; - providing a learning environment which makes effective use of available resources, work experience and field trips; - evaluating student progress/achievement and assuming responsibility for the overall assessment of the student's work within assigned courses. c) The provision of academic leadership, including: - providing guidance to Instructors relative to the Instructors' teaching assignments; - participating in the work or curriculum and other consultative committees as requested. -10- In addition, the Professor may, from time to time, be called upon to contribute to other areas ancillary to the role of Professor, such as student recruitment and selection, time-tabling, facility design, professional development, student employment, and control of supplies and equipment. The issues raised by the present grievances have been the subject of several other proceedings, some prior to the hearing in this matter, and some concurrent with it. There are also some decisions arising from similar disputes at other institutions which are also of some interest. We propose to begin by reviewing that jurisprudence, to which extensive argument was directed by both parties. First, the Union aplSlied for a review under Part VII of the Social Contract Act, 1993 of the fail-safe program developed by the Council of Regents on behalf of all of the colleges. That request was disposed of by a decision of the Office of Social Contract Adjudication established under the Social Contract Act 1993 in Re Ontario Public Service Employees' Union and Ontario College of Regents for Applied Arts and Technology, File 80 Adj-UCO003, July 13, 1994 0VlcKechnie, Chief Adjudicator). A similar argument was put to the Chief Adjudicator as that before us, but the Chief Adjudicator indicated that the program, as then posted, did not indicate any violation of the Social Contract Act. Given the possibility of confusion possible for academic staff, however, his order confirming the Program, required the following amendment: The Employer is directed to amend the Program to reflect the mutual understanding of the impact of unpaid days where workload by incorporating the following into the Program: work in relation to an unpaid day is not expected or required either on that day or subsequently. This decision, of course, came after all of the unpaid leave days here at issue. In -Il- addition, at page 10 of the decision, the Chief Adjudicator made the following observation: If there is some confusion in this regard or if there are issues in which work has not been reduced - that is, an unpaid day resulted in work being done on that day - this- is a matter of implementation to be resolved pursuant to the grievance procedure contained in the relevant collective agreement. In Re Northern College of Applied Arts and Technology and Ontario Public Service Employees' Union, Local 655, Workload Grievances, September 28, 1994 0Vlorrison), a workload resolution arbitrator, whose jurisdiction comes from clause 11.02 of the collective agreement, was presented with a workload grievance alleging that the assignment of Social Contract unpaid leave days at that College, which was not materially different from the situation before us, was contrary to the collective agreement. The workload resolution arbitrator declined to deal with unpaid leave days assigned by the College during non-teaching periods, that is, outside of the normal academic ierms, on the basis that his jurisdiction was limited to Articles 11.01 or 11.02, and the assignment of work during non-teaching periods is covered by Article 11.08. With respect to unpaid leave assigned on non-contact days during the teaching periods, however, the workload resolution arbitrator took jurisdiction to deal with the issue. At pp. 9-11 of his decision, the workload resolution arbitrator distinguishes between assigned hours and attributed hours, and comes to the'following conclusions: I note the use of the words assigned and attributed. As I read the Social Contract legislation, particularly subsections 25 (1), 33 (1) and 34(3), management has the right to reduce teaching contact hours, since these hours are assigned to the teacher by the College. But management does not have the unfettered prerogative to -12- reduce attributed hours for preparation, evaluation and feedback, and for comple- mentary functions - unless teaching contact hours are also reduced. My reasons are as follows: Preparation, Evaluation and Feedback Articles 11.01 D 1 and 11.01 E 1 set out mathematical ratios of assigned teaching contact hours to attributed hours for preparation, evaluation and feedback to students. These ratios are a product of the collective bargaining process and represent a mean. In some cases, professors will spend more time on preparation, evaluation and feedback than is allotted to them by the formula, in other cases less. In all cases, ifa teaching contact hour is assigned by the College, then professors have to prepare for it, and they have to perform evaluation and feedback to students. For the College simply to direct professors not to perform such activities, yet still assign them teaching contact hours, would be to unilaterally revise downward the formulas stipulated in 11.01 D1 and 11.01 E 1. The net effect, in most if not all instances, would be an increase in workload. Complementary functions By Article 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 on an hour for hour basis5 An allowance of 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 Like the preparation and evaluation factors, the attributive ratios set out in this Article - including the three hours for routine assistance and two for normal administrative tasks - are the product of the collective bargaining process. They too represent a mean. If the parties estimate that it takes a certain number of hours to produce a course outline, then that number of hours will appear on a SWF under complementary functions. Sometimes the task will take more time, sometimes less. Thus, it is not sufficient for the College to tell professors not to perform comple- mentary functions on a given day if they still have to produce a course outline, or assist individual students, or perform administrative tasks at other times of the week or SWF period. The basic result is a transfer of work tasks from one period to another. In summary, the College does not have the unilateral right under either the Collective Agreement or the Social Contract legislation to revise ratios and attribution formulas which are the produce of the collective bargaining process. The College is entitled to meet its expenditure reduction targets by requiring its employees to take six days unpaid leave of absence. But those leaves must be genuine. That is to say, they must result in a measurable reduction in work performed. While some of the complainants have been assigned unpaid leave days during teaching periods, there has been no reduction in teaching contact hours. I find, therefore, that the College has violated Article 11.01 A of the Collective Agreement. Two other awards were referred to by the Union in argument, Re Porcupine Area Ambulance Service and Canadian Union of Public Employees, Local 1484, January 10, 1994 (Dumoulin) and Re Trent University and Canadian Union of Educational Workers, Local 8, May 16, 1994 (Starkman). The first of these deals with a factually different situation, but its rationale is applied to a set of circumstances rather more like those before us in the second case. In both cases, the arbitrators appear to have treated the issue as the assignment of an unpaid leave day which would otherwise be a day when no duties would normally be assigned, so the cases may be distinguished at least in part from the situation before us, where the collective agreement clearly contemplates the assignment of duties, albeit not teaching duties, on ail of the days at issue. It will be obvious that this is a very difficult question to resolve, and it is made even more difficult because of the way in which it has been brought, as two group grievances involving a large number of individual professors, each of whom has an individualized workload. On the face of it, as the College argues, the assignment of unpaid leave days on days when no teaching contact was scheduled, whether that is because the days fall outside of the normal teaching periods, or because they are non-teaching days within the teaching periods, still fits squarely within the Social Contract Act and Regulation 590/93. Unlike the Porcupine Ambulance Service case, and at least as we read -14- the facts, the Trent University case, all of the days assigned, or chosen under protest, by the professors covered by these grievances were regular work days, on which the professors would either be expected to attend at work and perform duties during the usual hours, or in the individual discretion of each professor perform duties outside the College pursuant to sub-paragraph 11.01 G 1. As to the Northern College workload grievance award, to the extent that it relies on the mathematical ratios between assigned teaching contact hours and attributed hours for appropriation, evaluation and feedback, the award ignores the fact that those hours are only attributed, and are not necessarily actual hours. Individual professors have a degree of flexibility inherent in how they use the attributed hours, and when they actually perform the duties that are associated with those hours. In short, while the relationship may be mathematical, it is not unyielding, and does permit a certain scope for individual professors, however reluctantly, to reduce the amount of time spent on these functions, or to move these functions to different times than when they would normally have been performed. In addition, there is a certain amount of slippage inherent in the complementary functions, which are not related to teaching hours but are assigned during the week. While the three hours assigned for out-of-class assistance to individual students may relate to factors such as the number of teaching contact hours find class size, the two hours for normal administrative tasks, and it should be observed that this is a minimum assignment pursuant to paragraph 11.01 F, are assigned weekly, By a certain amount of individual scheduling of time, which the agreement clearly intends should be let~ to individual professors apart from the requirement to attend actual classes, those allowances could be cobbled together into a full day of"normal administrative tasks" which could -15- then be lef[ undone. Given the nature of employment of faculty members, and in particular the substantial amount of individual initiative involved in allocating the time for which individuals are paid, it appears to us that there would have been a far greater intrusion into the collective agreement had the College taken upon itself to specify directly those aspects of the workload which should be abandoned and those aspects which should be rescheduled because of the unpaid leave days. In short, we have come to the conclusion, although with a considerable degree of reluctance, that the application of the Social Contract Act and the fail-safe program to the academic staffofthe College was not contrary either to the Social Contract Act, or to the collective agreement, insofar as it relates to the generality of professors. It may be that there were individual cases where a hardship arose because of the particular assignment of unpaid leave days, and where a valid factual case could be made for the payment of overtime. But on the evidence before us, no such general case can be made out which can be applicable to all faculty members, and that is how the grievances were presented. In the result, the appropriate resolution is to dismiss the grievances. -16- DATED AT TORONTO this 8th day of December, 1997. Ke~airman I concur "Peter M. Hetz" Peter M. Hetz, College Nominee I dissent; see attached "Jon McManus" Jon McManus, Union Nomine 12/01/97 16:09 FAX 15198696468 JOHN ~lC ~IANUS ~03 While p~. ~ ~~. ADDENDUM Our dissenting colleague suggests that our reference to "a certain amount of slippage inherent in the complementary functions" leads to the inference that professors are not really working during the hours assigned for those functions, an inference which he calls insulting. No insult is intended, nor was the inference which our colleague has drawn. We have no doubt that professors work hard during the assigned hours, and often beyond them, on a range of tasks ancillary to the course delivery enterprise, but important to the functioning of the College. Since the College has elected not to reduce the course delivery function, other tasks would have to be allowed to slide to match the total workload with the reduced pay created by the Social Contract days. We only intended to suggest that there is room within the general heading of complementary functions to find enough tasks to leave undone, over the course of the year, to achieve this match.