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HomeMy WebLinkAboutUnion 91-06-05IN THE MATTER OF AN ARBITRATION B E T W E E N.~ NIAGARA COLLEGE (The Employer) - and - ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (The Union) AND IN THE MATTER OF A UNION GRIEVANCE - #88B619 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman Rene St. Onge, Employer Nominee Edward Seymour, Union Nominee APPEARANCES: For the Employer: Chris Riggs, Counsel For the Union: David I. Bloom, Counsel AWARD This arbitration involves a Union grievance dated June 27, 1988. At the outset of the hearing, 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. The substance of the grievance, and the remedy required, are set out in the grievance as follows: Statement of Grievance That the College violated Article 4.05 by arranging for an unreasonable teaching load for a sessional employee, one Cal Graham. Settlement of Grievance That the College undertake not to assign teaching contact hours to sessional employees which exceed the limits in Articles 4.01(9) and 4.01(2) (a). That an overtime payment be made to Mr. Graham as per established practice at the College Workload Monitoring Group and it include interest. That SWFs be provided to the Union Local for all persons who are excluded from or not included in the academic bargaining unit and who are assigned to teaching contact hours. In its reply, dated July 11, 1988, the College appears to have conceded the gmievance in part, and rejected it in part, in the following terms: Further to our meeting held on 1988-07-04 your arguments in support of this grievance have been considered. Mr. Graham will receive a corrected overtime payment as per the established practice to which you referred. However, regarding your other point of settlement, that the local Union receive S.W.F.'s for all persons who are - 2 - excluded from, or not included in the bargaining unit and who are assigned teaching contact hours, it is the view of management that this is not a requirement of the Collective Agreement. The facts on which this matter is to be determined were placed before us in the submissions of counsel, virtually all issues having been agreed, without the necessity of calling any evidence. In the winter and spring term 1988, Mr. Cal Graham was employed by the College as a sessional employee. In early January 1988, he was teaching welding in the Contract Services Division, a part of the Continuing Education Faculty. He was teaching a night course of three hours per week, which assignment was coming to an end at this time. On January 5, 1988, the College was approached by Quebec- Ontario Paper Company to provide welding training for a number of its employees. The Contract Services Division regularly provides such courses on a contract basis for private employers, and an arrangement was quickly concluded. The training was scheduled to begin on January 11, 1988 and to involve 10 employees in both classroom and shop instruction on the basis of 35 hours per week to be given during the day. Mr. Graham was an experienced welding teacher, who had worked for contractors at the Quebec-Ontario plant, and therefore was familiar with the operations there. Because he was available, he was assigned this teaching schedule, which was ultimately extended for a total of twelve weeks. The parties were agreed that Mr. Graham taught 30 hours in the first week and 35 hours per week - 3 - after that for the total duration of this training program. The following provisions of the collective agreement are relevant to the disposition of this matter: Article 4 WORKLOAD 4.01 (1) Each teacher shall have a workload that 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 including nursing and for up to thirty-eight (38) weeks in which there are teaching contact hours in the case of teachers not in post- secondary programs. The balance of the academic year shall be reserved for complementary functions and professional development. Workload factors to be considered are: (i) 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 (9) Teaching contact hours for a teacher in post- secondary programs (which shall be understood to include Nursing) shall not exceed eighteen (18) in any week. Teaching contact hours for a teacher not in post- secondary programs shall not exceed twenty (20) in any week. 4.01 (10) (a) Notwithstanding the above, overtime worked by a teacher shall not exceed one (1) teaching contact hour in any one week or three (3) total workload hours in any one week and shall be voluntary. - 4 - (b) Such teaching contact hour agreed to in excess of the respective weekly teaching contact hour maximum shall be compensated at the rate of 0.1% of annual salary. Such workload hours agreed to in excess of the forty-four (44) hour weekly workload maximum shall be compensated at the rate of 0.1% of annual salary. Such overtime payments shall be for the greater amount but shall not by pyramided. (c) All such voluntary overtime agreements, which shall not be unreasonably withheld, shall be set out in writing on the SWF for that period by the College and filed with the teacher and the Union Local within ten (10) days. (d) Probationary teachers shall not be assigned teaching contact hours or total workload hours in excess of the maxima under any circumstances. 4.0Z (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 Standard Workload Form (SWF), attached as Appendix VIII, to be provided by the College. The supervisor shall give a copy to the teacher not later than six (6) weeks prior to the beginning of the period covered by the timetable excluding holidays and vacations. It is recognized that if the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher. 4.02 (1) (b) 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 prepara- tions, type of evaluation/feedback required by the curriculum, class size, attributed hours, contact days, language of instruction and complementary functions. 4.02 (1) (c) Following receipt of the SWF, the teacher shall indicate in writing on the SWF whether in agreement with the total workload. If not in agreement the teacher and the supervisor may add such other comments as is considered appropriate and may indicate in writing that the workload should be reviewed by the College Workload Monitoring Group (Group). 4.02 (1) (d) In the event that the teacher is not in agreement with the total workload and wishes it to be reviewed by the Group, the teacher must so indicate in - 5 - writing to the supervisor within three (3) working days from date of receipt of the SWF. Absent such indication, the teacher shall be considered to be in agreement with the total workload. The completed SWF will be forwarded by the supervisor to the Group within three (3) working days from date of receipt from the teacher with a copy to be given to the teacher. 4.0Z (6)(1) References to "teacher" in this Article include "instructor" but do not include partial-load teachers. 4.05 The parties agree that no College shall circumvent the provision of this Article by arranging for unreasonable teaching loads on the part of persons who are excluded from or not included in the academic bargaining unit. An ancillary issue arose as to whether the College had improperly left Mr. Graham's name off the list of academic personnel hired to teach credit courses required by Article 8.15(b). At the hearing, the College conceded that Mr. Graham's name should have been on that list, and that its omission was a mistake. Apart from recording this, we shall not deal further with this issue except as it relates to the allegation of a breach of clause 4.05. The first issue to be resolved is whether the assignment which is the subject of the present grievance constituted a breach of clause 4.05. Under that provision, the College is prohibited from circumventing Article 4 by arranging for unreasonable teaching loads for persons excluded from the academic employees bargaining unit. At all material times, Mr. Graham was a sessional teacher, - 6 - a classification which is excluded from the academic employees bargaining unit by clause 1.01 of the collective agreement. The critical question is whether the assignment complained of consti- tuted an unreasonable teaching load for him. The Union argues that, on its face, the assignment represents a load of 35 teaching contact hours per week, when the maximum specified in clause 4.01(9) for non-post-secondary programs is 20 hours per week, a 175% overload. Given the ratios of preparation time, evaluation and feedback time and complementary functions set out in Article 4.01, the Union argues that such an overload is on its face patently unreasonable. When coupled with what the Union describes as the Employer's attempt to suppress information about the nature of this overload by withholding SWFs from the Union in relation to Mr. Graham's load, and not placing his name on the list required by Article 8.15(b), the Union says that the tests for clause 4.05 set out in the jurisprudence have clearly been met. As to that jurisprudence, we were referred to two cases where Article 4.05 has been construed by boards of arbitration appointed under this or predecessor collective agreements. In Re Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees' Union (Union Grievance No. 83249), unreported, July 12, 1984 (Brown), the following observations occur, at pp. 14- 16: The Union points to the number of extra hours on the form as assigned to Ms. Umoessien and submits that is an unreasonable teaching load. There is no evidence to - 7 - support that bare presumption. In some courses that amount of extra time in such a period might be considered excessive in that it would be too onerous a duty for the teacher and in others it would not be so. The best judge of that is the teacher of the course and if she agrees to the extra work, the reverse of the Union's argument can be used, that it is not excessive on its face because of that individual agreement. There is not then sufficient facts in this case to persuade the Board that the 54 hours of teaching assigned to Ms. Umoessien were excessive, so as to constitute an unreasonable teaching load for the purpose of Article 5. We note too that the Union has the onus of establishing that the College, by this method, intended to or did circumvent Article 4. There is no evidence of that before us. Had the College not used the voluntary agreement form and disclosed the arrangement with Ms. Umoessien to the Union and had dealt with her in some surreptitious manner in order perhaps to avoid a dispute, it might have been viewed as an attempt to frustrate or get around the application of Article 4. Such factors are not present here. Ms. Umoessien was hired to teach a specific course in a specific period of time at 27 hours per week, 6 hours over the maximum allowed for regular teachers, but 54 hours in addition to the maximum in the 9 weeks of the course. The course is unique in teaching life skills to adults and would not be reasonable to split into small segments to fit into the regular teaching hours by assignment of 6 hours to someone else. It would not easily be assigned to other teachers if available and for the benefit of the type of students who would take an orientation course, the individual continuity of teaching would seem to be an appropriate goal. Thus the assignment of extra hours to that teacher, would not be itself, be sufficient to prove that the College thereby circumvented the provisions of Article 4. There is no evidence to show that any other member of the bargaining unit or those teachers excluded from the bargaining unit, were adversely affected in any way by the College's arrangement with Ms. Umoessien to teach extra hours in this particular course. It is not that she was assigned to teach these extra hours elsewhere in the retraining department, which might affect other teachers' opportunities, but rather this was limited to one course which she alone was hired to teach and which required more time to complete and this led to the voluntary arrangements with that teacher. We find nothing improper in that circumstance and nothing to the contrary was established by the Union. In addition, it - 8 - is noted that the calculation must be made on a rolling average over 3 months in order to determine if the maximum teaching hours were in fact exceeded and we do not have that data. But that average could still be exceeded by a voluntary agreement with a regular teacher to which we have referred above. The Brent award referred to a possible effect of Article 4.05 where the College might pile on work to excluded teachers and thereby affect members of the bargaining unit. Assuming that is part of the mischief which the parties have sought to address in Article 4.05, then like in the Vanderlip grievance, there is no evidence here to support such a conclusion. The excerpt quoted above was considered by another board of arbitration in Re Cambrian Colleqe and Ontario Public Service Employees' Union, Local 655 (Union Grievance), unreported, November 16, 1987 (Devlin). That board of arbitration apparently agreed with some of the criteria set out in the Fanshawe College case, and disagreed with others, making the following observations on p. 15: In the result, 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 compli- ance. 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 potentially negative impact on members of the bargaining unit. As a consequence, the reasonableness of the teaching load can not, in our view, be judged by whether the sessional employee is satisfied with the hours assigned. - 9 - In general, we are in agreement with the criteria set out in the Fanshawe Colleqe case, but only subject to the observations made in the Cambrian Colleqe case about two of those criteria. Applying them to the case before us, we agree that the onus is on the Union to establish that the College circumvented the provisions of Article 4. While we agree that circumvention does not depend on bad faith, and that evidence of an attempt to conceal or mislead the Union is only a part of the consideration of whether circumven- tion was intended, we observe that really have no evidence in this matter except that the College admits that it should have included Mr. Graham's name on the list of teachers required under Article 8.15(b), but did not do so in error. As to the non-production of the SWF, that is an issue between the parties of collective agreement interpretation, which is now squarely before us. The failure to provide the SWF does not, by itself, demonstrate an attempt to conceal in such circumstances. Indeed, given that the grievance was filed shortly after the termination of the teaching assignment, it seems unlikely to us that there was any concealment at all. As to the other factors, while the number of hours assigned is on the face of it very high, we observe that the original intention was that this assignment would last for only a short period of time, although in fact it was continued at the option of the outside employer for a total of twelve weeks. We have no evidence before us as to the teaching load of Mr. Graham after this period was over; the suggestion in the submissions of - 10 - counsel is that he was teaching only three hours per week in a night school course immediately prior to this assignment. It is also asserted that he was available on the short notice required to mount this course, and there is nothing in the evidence to suggest to us that assigning it to him in this way had any deleterious effect on any of the subjects covered by Article 4 insofar as the rights of the Union or other employees in the bargaining unit are concerned. Given the absence of any evidence of deliberate misrepresentation by the College, the relatively short-term duration of the overload assignment and the absence of any suggestion that it was in any way intended to circumvent the provisions of Article 4.05 or the Union's rights, we think that a case has not been made out for a breach of Article 4.05 on the facts which are before us. As we have observed, the issue of whether an SWF is required to be provided for a sessional employee is an ancillary issue between the parties in this arbitration. On its face, clause 4.02(1) (a) refers to the proposed workload "for any teacher". The recognition provision of the collective agreement, Article 1, provides in clause 1.01 that the academic employees bargaining unit does not include "teachers...employed on a part-time or sessional basis". Those two categories of employees, therefore, are simply not protected in any way by the collective agreement, and it is doubtful whether they can be said to be entitled to any of the procedural protections of Article 4. The collective agreement also recognizes partial-load teachers, who are defined in clause 3.03 - 11 - as those teaching over six hours and up to and including twelve hours per week on a regular basis. Partial-load employees are covered by the collective agreement, although the rights to which they are entitled are considerably circumscribed. There is a further definitional provision in subclause 4.02(6)(1), which provides that references to "teacher" in Article 4 includes instructors but does not include partial-load teachers. When this provision is read with clause 3.03 and clause 1.01, the obvious interpretation is that the parties felt it necessary to modify the ordinary definition of teacher to exclude partial-load teachers only because partial-load teachers were members of the bargaining unit, and the expression "teacher" as it appears throughout Article 4 was intended only to apply to bargaining unit members. Otherwise, if we were to adopt the view that the provisions of clause 1.01 recognize that the word "teacher" all by itself may include part-time or sessional employees, we would create the anomalous position of Article 4 requiring SWFs to be issued to part-time and sessional employees, but not to partial- load teachers. While there might be some logical justification for issuing SWFs to full-time sessionals, but not to partial-load teachers, there can be no justification for issuing them to part- time employees but not partial-load teachers. The better resol- ution of all three of these provisions, therefore, is that references to "teacher" in Article 4 do not include partial-load teachers because of subclause 4.01(6)(1), and do not include part- - 12 - time or sessional teachers because of the general exclusion of those individuals from the bargaining unit under clause 1.01. In the result, therefore, we are satisfied that the collective agreement does not require the preparation of an SWF for a sessional instructor. We observe that the SWF form, which is made a part of the collective agreement as Appendix 8, has boxes to be checked off for all of the categories of full-time, partial- load, part-time and sessional. The best explanation for this is that offered by the College, which is that, since the SWF require- ment obviously does not apply to partial-load teachers because of subclause 4.02(6)(1), the provisions are put in there to permit voluntary use of the form for categories other than full-time regular teacher, the only category for which the use of the form is mandatory. Finally, there is the question of remedy. The Union asks that overtime be paid to the grievor, and there is apparently no real dispute in this regard, in that the Employer recognizes that its past practice was to pay overtime basically on the same basis as is applicable to full-time employees. There seems to have been some issue as to calculation of the exact amounts owing, and a further amount of some $4,500 was paid to Mr. Graham on July 28, 1988 by way of recalculation. The Union asks us simply to declare that Mr. Graham is entitled to overtime, and to remain seized in case the amount of overtime is still not correct. In our view, we do not see how the payment of overtime can possibly flow from any matter with which we are seized here. - 13 - We have found that there has been no breach of clause 4.05, and no breach of the SWF requirements of Article 4.02. The only breach which could possibly lead to an order to pay overtime to Mr. Graham would be a breach of his own contractual arrangements with the College, which are clearly outside of the collective agreement, since the collective agreement does not apply to sessional employees. While there might be, in some circumstances, jurisdic- tion to issue an order for the payment of monies to a person not covered by the contract if that flowed as the appropriate remedy from a breach of the contract itself, this is not such a situation. In the result, for the reasons set out above, the grievance must be denied in its entirety. DATED AT TORONTO, this 5th day of June, 1991. Ke~an I concur "Rene St. Onge" Rene St. Onge, Employer Nominee I dissent; see attached "Edward Seymour" Edward Seymour, Union Nominee DISSENT Union Nominee: Edward E. Seymour RE: Niagara College and Ontario Public Service Rmployees Union (OPSEU) 88B619 I have read the majority award and find I must dissent. I would have found that Mr. Graham's teaching assignment constituted a breach of clause 4:05. The number of teaching hours assigned, 35 per week, is 175 per cent in excess of the 20 hours specified in article 4:01(9). These teaching hours and the additional time required for preparation, evaluation and feedback, in my opinion constitutes an unreasonable workload. One purpose of clause 4:05 is to prevent the abuse of sessionals, so as to ensure that the integrity of the bargaining unit is maintained. True sessional employees are excluded from the bargaining unit. However, through clause 4:05 the College agrees that unreasonable teaching loads will not be assigned to non- bargaining unit personnel. Article 4:05 places limits on the College as does article 4:01(10) which limits overtime to one (1) teaching hour or three (3) total workload hours in any week for a teacher. It is, as the union asserts, patently unreasonable to assign sessionals hours 175 percent in excess of those permitted full-time teachers under the Collective Agreement. To permit these excessive hours could jeopardize the bargaining relationship between the parties. Violations of the intent outlined in Article 4:05, could eventually lead to full-time instructors in a particular discipline being deprived of teaching hours or could prevent the bargaining unit from being expanded. To protect the rights of both union and employees SWF's should be provided. The provision of SWF's would enable the union to properly police the Collective Agreement. While the omission of Graham's name from the 8:15b list was an admitted oversight, the absence of the information which would be provided therein further hampers the union from adequately representing its members. For these reasons I would have granted the union's request for a declaration that the College violated the intent of Article 4:05. Also, I would have directed the College to comply in future, and not assign unreasonable work loads. Further I would have directed the College to provide SWF's to the union.