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HomeMy WebLinkAboutUnion 89-01-16 IN THE MATTER OF ^N ARBITR^TION BETWEEN: NIAGARA COLLEGE (the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") RE GRIEVANCE NO. 87L76 BOARD OF ARBITRATION: Pamela C. Picher - Chairperson Bob Gallivan - Employer Nominee Wally Majesky - Union Nominee APPEARING FOR THE COLLEGE: Chris Riggs - Counsel APPEARING FOR THE UNION: Malcom Ruby - Counsel Hearings in this matter were held in St. Catharines, Ontario on April 7 and 3uly 1988. Written submissions were submitted on August 8, September 16 and October 1988. AWARD The incident giving rise to this policy grievance was the proposed layoff of one full-time teacher in the adult training section of the School of Technology. It is the position of the Union that the junior teacher who was slated for layoff, Mr. Paul Evans, should not have been laid off but rather should have been permitted to assume teaching responsibilities in an evening apprenticeship program which is taught by part-time teachers who are not members of the bargaining unit. Mr. Evans was never in fact laid off because he assumed a full-time position in another area of the College. The parties, however, agreed to proceed with this matter as a policy grievance in order to adjudicate what rights Mr. Evans, as a full-time teacher, would have had to take over teaching responsibilities held by part-time instructors in another one of the College's programs, a program in which there is no dispute Mr. Evans was fully qualified to teach. The articles of the collective agreement which are relevant to the resolution of the instant dispute are set out below: Article 4 V/OR KLOAD #.01 (2) (a) To~l workload assigned and attributed by the College to a teacher shall not exceed (#t~) 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. 4.01 (9) Teaching contact hours for a teacher in post- -2- 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-~eeondary programs shall not exceed twenty (20) in any week. #.01 (11) (c) Teaching contact hours shall not exceed six hundred and forty-eight (608) teaching contact 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 po~t-secondary programs. #.01 (12) (a) The contact day shall not exceed eight (8) hours from the beginning of the first assigned hour to the end of the last assigned hour. (b) Every effort shah be made to ensure that work will not be assigned to begin less than twelve (12) hours after the end of the previous day's work assignment. Article 8 SENIORITY 8.0# ~/hen a CoUege plans to lay-off or to reduce the number of full-time employees who have completed the probationary period, or plans the involuntary transfer of such employees to other positions than those previously held as a result of such a planned lay-off or reduction of employees the following procedure shall apply: (a) The College will notify Local President of the planned staff reduction and the courses, programs or services affected; (b) Within seven calendar days of the receipt of such notification, the College and Union Committees shall meet for the purpose of the College advising of the circumstances giving rise to the planned staff reduction and the employees affected; (c) If requested by the Union within three calendar days following the meeting under subsection (b), the College and Union Committees shall meet within seven calendar days of receipt of such request for -3- the purpose of discussing the planned staff reduction, the circumstances giving rise to the reduction, the basis for the selection of the employees affected and the availability of alternative assignments. It being understood that the CoUege reserves the right to determine the number and composition of full-tine, partial load and part-time or sessional teaching positions, the CoUege shall give preference to continuation of full-time positions over partial load, part-time or sessional positions subject to such operational requirements as the quality of the programs, their economic viability, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students and the community. Further meetings may be held where mutually agreed by the College and the Union. [ emphasis added ] It is the position of the Union that article g.04(c) of the collective agreement, set out above, obligated the College to continue the employment of Mr. Evans, as a full-time teacher, because it is common ground that the College, with part-time teachers, was operating an apprenticeship program in the evening for which Mr. Evans had the qualifications to teach. In this regard, the Union relies specifically on the phrase in article $.04(c) that stipulates that, "the College shall give preference to continuation of full-time positions over ... part-time ... positions" . The College asserts, on the other hand, that the obligations under article 8.0~(c) were not triggered because the full-time work carried on by Mr. Evans disappeared, as opposed to having been taken over by or transferred to part-time teachers. In the alternative, the College argues that the specific exceptions to the College's obligation to give preference to the continuation of full-time positions, as set-out in article 8.04(c), -~- apply in the instant circumstances. Counsel maintains that operational requirements and the economic viability of the evening apprenticeship program in issue would be jeopardized by the utilization of full-time teachers and that, accordingly, the College was not required to allow Mr. Evans to displace part-time teachers in that program. A. FACTS: 1. THE TWO PROGRAMS: Federally-Sponsored Day-time Adult Training Program vs Provincially-Sponsored Evening Apprenticeship Program a_ Day-Time Adult Training Program: During the day, the College, at its St. Catharines campus, runs an adult training program for approximately 250-300 students. Courses are provided in such areas as tool making, general machining, CNC machining, industrial maintenance mechanics and industrial engineering. The programs are financed by the federal government and are operated in conjunction with the Department of Employment and Immigration. The program is taught through the sole use of full-time teachers who are members of the bargaining unit. It was due to a decline in federal funding for this program and the "purchase" of fewer seats by the federal government that the College was required to reduce its number of full-time teachers from six to five for the 1987-1988 academic year, and to place Mr. Evans on the list for lay-off. Funding for the federal program is on a "seat-purchase" basis. In approximately May of each year the federal government, through the Department of Employment and Immigration, commits itself to a certain number of seats in each course and funding is provided to the College in accordance with those agreed-upon numbers, regardless of whether the seats are actually filled when the course commences in the fall. -5- In this day-time program, the class sections normally contain twenty or more students. The students receive twenty-five hours of instruction per week between the hours of 8:30 a.m. and 3:30 p.m. The courses generally run from thirty to forty weeks from September to June. The funding that is provided for the day-time course is calculated on the basis of $36.00 per day per student for a five hour teaching day. A student who successfully completes the day-time adult training program receives a certificate from the College. b. Evening Apprenticeship Program: In contrast to the adult training program, the apprenticeship program, is taught exclusively in the evening and is sponsored by the provincial government. The College provides courses in general machining, industrial maintenance mechanics and tool and die making at three levels (basic, intermediate and advanced). While this normally results in nine separate course offerings in a given week, during the time relevant to the grievance, only eight courses were given. The intermediate level of the IMM course was not run due to an insufficient number of students. The courses are taught between the hours of 7 p.m. and 10 p.m., Monday through Thursday. A student would typically attend two evening sessions, either Monday or Wednesday or Tuesday and Thursday, for a total of six hours of in-class instruction per week. The program lasts for forty weeks per year for a total of 240 classroom hours each year. In the 1987/88 academic year, there were approximately 131 students enrolled in the program. The Ministry of Skills Development is responsible for the recruitment of students for the program. The provincial government has a local apprenticeship office with its -6- own training consultants who work with the area industries to encourage them to place eligible employees in the program. The apprenticeship program includes a combination of on-the-job training through employment in the industry and 720 classroom hours at the College spread over three years. Once the student has completed ali three levels of the program, he or she may sit for provincially-sponsored exams leading to provincial certification in their trade. The funding for the program is provided by the provincial government. In 1986/87, the per diem grant was $39.88 per student. In 1987/88, it was increased to $#4.00. Contrary to the day-time program, the funding is based on the actual number of students who enroll in the apprenticeship program in September of each year rather than the estimates made in the spring and summer. Estimates of student numbers are "amended to actual" once the course begins which may result in less revenue for the course than was anticipated in the spring of a given year. The teaching of the apprenticeship program is done entirely by part-time teachers who work at their own jobs during the day. According to the testimony of Dr. Knowles, the Dean of the School of Applied Science and Technology~ full-time staff have never been exclusively associated with the apprenticeship program. In the past, though~ from time-to-time, full-time teachers were assigned some teaching hours in the apprenticeship program to top-up their day-time teaching loads in the adult training program. Dr. Knowles stated that the practice of topping-up for full-time teachers was suspended with the last contract in 1985. Since 1955, the apprenticeship program has been taught exclusively by part-time teachers who are practicing journeymen in the area industries who want to teach part-time. The hourly rate of pay given to the part-time teacher is $29.87 plus 7% in lieu of benefits for a total of $31.96 per hour. -7- 2. THE COLLEGE'S DECISION TO DECLINE TO PLACE MR. EVANS IN THE APPRENTICESHIP PROGRAM: It is the position of the College that to give preference to Mr. Evans as a full- time teacher over the part-time teachers working in the evening apprenticeship program and to allow him, as a full-time teacher~ to teach the apprenticeship program would have caused the College substantial problems in respect of the economic viability of the apprenticeship program, the scheduling of the teachers and the quality of the education provided in the program. a. Economic Viability V~ith respect to the economic viability of the evening apprenticeship program, Dr. Knowles stated that when the College uses part-time staff to teach in the apprenticeship program, the approximate cost per hour is $32.00. If Mr. Evans as a full-time teacher were utilized to teach in the evening apprenticeship program, the cost per hour would be increased to more than $70.00 per hour. Dr. Knowles calculates the $70.00 per hour figure by dividing Mr. Evan's annual salary plus benefits of approximately $54,000.00 by the maximum allowable teaching hours per year per teacher of 760. He notes that the resulting approximate $70.00 per hour is a minimum figure and that, in all likelihood, the cost per hour would be greater because it is normally the case that because of scheduling intricacies the College it is not able to schedule a teacher to the full maximum of his or her allowable hours. Dr. Knowles testified that the increased cost to the College of using Mr. Evans in the evening apprenticeship program, calculated on the basis of the approximate 130 students who were in attendance at the time relevant to the grievance, would be -8- approximately $30,000.00. The approximate revenue received by the College per student is $1,500.00. Dr. Knowles calculated, therefore, that if it used Mr. Evans to teach, the College would need approximately twenty additional students in the apprenticeship program to augment its revenue by $30,000.00 and retain the same level of economic viability. Dr. Knowles testified that it was highly unlikely that the program would be able to attract twenty additional students, lie testified that over the years the local consultants have worked hard to increase the numbers of students in the program but, despite considerable efforts, have not been able to substantially raise the numbers. In fact, on occasion, such as at the time relevant to the grievance, they had to cancel one or more of the nine sections of the evening apprenticeship program due to insufficient enrollment. By way of general background, Dr. Knowles testified that the College has been in financial difficulty over the last numbers of years due in part to a general decline in enrollment and due, as well, to cutbacks in federally-sponsored activities. He stated that for a number of years the College has been able to offset its losses by drawing on its reserves. More recently, however, and at the time relevant to the instant grievance, there are no longer sufficient reserves. The College's decision as to whether to continue to run a program if it means doing so at a loss then becomes more difficult. To make such a determination, Dr. Knowles testified, the College has to look at the mix of all of its programs, their benetit to the community and their associated administrative costs, lie stated that if a decision is made to run one program at a loss, then something else in the global context of the College has to be cut to offset that loss and maintain balance in the budget. -9- Dr. Knowles testified that to offset the additional $30,000.00 that it would cost the College to utilize Mr. Evans in the apprenticeship program it would be necessary to find the money elsewhere in the School of Technology to bring Dr. Knowles' budget to the level he'd been instructed to attain. The result might be the lay-off of another person in another program. Dr. Knowles testified that in 1986/87 and 1987/88 the apprenticeship program was run at a loss of approximately $6,000 to $9,000. If Mr. Evans were utilized without some fundamental change in the program, however, the deficit would be increased four to six fold. Mr. Knowles stated that the College does not run its programs to generate a profit but rather to cover expenses and~ where possible, to help other programs cover their problems. In 1986/87, the apprenticeship program, with its approximate $6~000 deficit, was not one hundred percent economically viable in that the revenues did not fully cover costs. The College, however, was satisfied that the loss was not sufficient to cancel the program. Dr. Knowles testified that in the spring and summer of 1987, the College made a decision that it would require the apprenticeship program to ensure that its total revenues and cost would stay in balance or close to balance. To make the program more cost efficient they removed an administrative position to lower overhead. Of importance to the matter at hand, Dr. Knowles stated that the College decided that it would not utilize full-time staff in the evening program in order to ensure that the cost of delivering the program would remain about the same as it had been instead of incurring an increased cost of some $30,000.00, a cost which they could not anticipate would be offset by increased revenues. - 10- b. Scheduling Problems Involved in Utilizing FuU-Time Teachers in the Apprenticeship Program: Dr. Knowles testified that if a full-time teacher were used exclusively in the apprenticeship program, the cost of the teacher would far exceed $70.00 an hour because the maximum hours one could teach in the apprenticeship program per week (given the number of available classes) would be twelve, while the maximum number of teaching hours allowed by the collective agreement per week is twenty. Accordingly, for the arrangement to be remotely cost efficient, the full-time teacher would have to teach in the daytime program to supplement the 12 available hours in the evening apprenticeship program. The need for the cross teaching assignment was not disputed by the Union. Specific scheduling restrictions, however, are contained in the collective agreement which, in the assessment of Dr. Knowles, make the scheduling of a full- time teacher in both the daytime adult training program and the evening apprenticeship program difficult. The collective agreement stipulates that a full-time teacher cannot exceed a span of eight hours from the beginning of the first class to the end of the last class. It further requires that every effort be made to ensure that there is a lapse of twelve hours between the end of classes one day and the start of classes the next. Problems arise trying to utilize a full-time teacher in both the evening apprenticeship program and the daytime adult training program because classes in the daytime apprenticeship program begin at 8:30 a.m. and run to 3:00 or 3:30 p.m., while classes in the evening program begin at 7:00 p.m. and run through until 10:00 p.m. To ensure that there is a twelve hour span between the end of the apprenticeship program and the beginning of the teacher's classes the next day, the full-time teacher could not begin to teach in the daytime program until after I0:00 a.m., although classes start at 8:30 a.m. -1l- In addition, however, to ensure that the full-time teacher's span from the beginning to the end of his classes on a given day does not exceed eight hours, the teacher could not in fact begin his teaching in the day-time until 2:00 p.m. because he would not finish teaching in the apprenticeship program until 10:00 p.m. the night before. Since the daytime adult training program classes end at 3:00 or 3:30, the full-time teacher could only teach from 2:00 to 3:00 or 3:30 in the daytime program. Dr. Knowles testified that Mr. Evans was primarily associated with the Computer Numerically- Controlled Machining course (CNC Machining) which is primarily taught, according to Dr. Knowles, in multiple blocks of three hours in length instead of blocks of I or 1-1/2 hours. To make the necessary adjustment would require a restructuring of the curriculum which might not be appropriate within the confines of this particular program. Because the apprenticeship program does not run on Friday night, a full-time teacher who teaches in the apprenticeship program until 10:00 Fum. Thursday night would be able to teach in the adult training daytime program from 10:00 p.m. on Friday onwards. Dr. Knowles stated his view that in order to get close to the maximum allowable teaching hours of twenty, only twelve of which can be found in the apprenticeship program, the teacher would have to teach approximately five hours in a row on Friday. In Dr. Knowles' assessment, continuous teaching of that nature would be a heavy teaching assignment and might raise concerns with respect to safety, particularly when the classes involve working with dangerous equipment. If Mr. Evans taught four nights (12 hours) a week in the apprenticeship program plus 5 hours on Friday he would achieve a maximum of seventeen hours. Dr. Knowles acknowledged, moreover, that it would be technically possible to schedule Mr. Evans to - 12- twenty hours by using twelve hours in the evening program, five hours on Friday and one hour from 2:00-3:00 on Monday, Tuesday and Wednesday. He further acknowledged that nineteen hours would be a reasonable full-time teaching load. Dr. Knowles doubted, however, that there would be an adequate number of single hours (or one and one half hours) in the context of the program to be able to properly accommodate the above described schedule proposed by the Union.. Mr. 3oe Brandy was at one time Chairman of the Technological Division of the School of Retraining. In that capacity he had some responsibility for the time-table and considered the problems of converting part-time positions into slots appropriate for full-time teachers. He stated that while it is not easy, it is possible to successfully utilize full-time teachers in part-time positions if one is skilled at time-tabling. He conceded that when he considered these matters the collective agreement did not contain the scheduling restrictions which are currently in effect, as discussed above. Mr. Arthur Gill, the Coordinator of the apprenticeship program for the School of Technology, stated that to re-do the time-table to accommodate Mr. Evans in the apprenticeship program would require moving other full-time teachers, not just Mr. Evans, who are now working entirely in the day. Presumably, if Mr. Evans is used partly in the daytime program in order to enable him to work in the evening program, then another full-time teacher in the daytime program would have to be displaced for an equivalent number of hours. The result would be that the second teacher would not be able to work full-time in the daytime program and, presumably, would have to also work in the evening program to fill up his or her full-time schedule, assuming qualification to do so. -13- B. SUBMISSIONS: The Union submits that the language of article 8.0~(c) indicates that it is only where considerations of economic viability or operational requirements outweigh the obligation to continue the full-time positions that the preference for continuing full- time positions can be displaced. Counsel for the Union emphasizes that the phrase used in article $.04(c) is "economic viability" rather than "profitability". Counsel notes that "viable" means "capable of living or maintaining a separate existence, feasible or workable". "Profitable", on the other hand, means "yielding pecuniary advantage as opposed to operating at a loss". Counsel maintains, then, that to be "viable" does not require something to be "profitable". On this basis, counsel argues that for the College to displace its obligation to continue full-time positions, it must provide evidence that the apprenticeship program would not be feasible or capable of maintaining a separate existence if full-time teachers replace part-time teachers. The Union disputes that the additional cost to the apprenticeship program that would be incurred by using Mr. Evans would be $30,000. He submits that because the full-time teacher would also be utilized in the daytime program for approximately one third of his time, approximately $10~000 of the $30,000 would be attributable to the cost of the full-time, daytime program and only approximately $20,000 would be attributable to the apprenticeship program. Counsel for the Union further maintains that a financial document prepared by Dr. Knowles and introduced by the Union suggests that the apprenticeship program could generate enough revenue to operate profitably even if a full-time teacher were brought - into the program and the school was forced to absorb the additional salary cost. Counsel for the Union based his submission on what he claims are inaccuracies in the overall revenue and cost figures for the program as set out in the document. Counsel further stressed that, in any event, Dr. Knowles testified that in his opinion the apprenticeship program was essential. On this basis, counsel argues that the program should be offered to the public even if it must operate with a deficit. With respect to operational requirements, counsel for the Union maintains that the College has failed to establish that operational requirements would prevent the use of full-time teachers in the apprenticeship program. In his view, the evidence demonstrates that there were ways to accommodate the use of a full-time teacher in the evening program through scheduling alternatives. Counsel further maintains that article ~.02(12)(b) is directory only and does not make a gap of twelve hours between that end of teaching one day and its beginning the next a mandatory requirement. He further argues that article ~.01(b) of the collective agreement describes a teaching hour as 50 minutes plus a break of up to l0 minutes. He thus maintains that the provision of such breaks mitigates against any adverse effects of a five hour teaching day on Fridays. Counsel for the College has a different view of the College's rights and obligations under article $.0#(c) of the collective agreement. He submits that the obligation of the College to give preference to full-time teachers as set out in article $.0#(c) does not arise in the facts of this case. He maintains that because the proposed lay-off was the result of a cutback in federal seats in the daytime program, such that the need for one full-time staff disappeared (as opposed to being transferred to part-time teachers), there is no failure by the College to provide a preference to the continuation of full-time positions over other positions. In the alternative, counsel -15- maintains that the evidence demonstrates that concerns of economic viability, scheduling and quality of work were of sufficient magnitude that the College was not required by the collective agreement to move Mr. Evans into the apprenticeship program. C. DECISION: In the cross-examination of Dr. Knowles, the Union sought to dispute the accuracy of the overall revenue figures for the apprenticeship program that were set out in the financial document prepared by Dr. Knowles and submitted into evidence by the Union. The document, though, was not prepared for the purposes of this case or to justify the College's decision respecting Mr. Evans. Rather it was prepared for a wholly different purpose and, according to Dr. Knowles, is not suited to an analysis of the revenue figures for the academic year for which Mr. Evans was going to be laid off. Dr. Knowles indicated that it was impossible to reconstruct the sub-elements of the total figures set out in that document without further documentation (which was not presented in evidence). He commented that the document does not reveal how many students accounted for in the revenue figures in the document were in fact being carried over from the previous fiscal year and thus would not generate revenue for the academic year in issue. Having carefully reviewed the documents, surrounding evidence and submissions, we cannot find that the Union has successfully shaken the reliability of the figures as they appear on the document prepared by Dr. Knowles. Nor has the Union established that the apprenticeship program would generate enough revenue to cover the increased costs to the apprenticeship program which would be incurred if it utilized the services of a full-time teacher like Mr. Evans. - 16- The evidence establishes to the satisfaction of the Board, that the cost of providing the apprenticeship program would be increased substantially if the College was forced to utilize Mr. Evans, as a full-time teacher, to teach in the apprenticeship program. The cost per hour would be increased from approximately $32.00 per hour to $70.00 per hour. Over a year, the increased cost of utilizing Mr. Evans would be approximately $30,000. Counsel for the Union suggested that the increased costs in utilizing Mr. Evans in the daytime program would not be $30,000 but would rather be $20,000 because approximately one third of his time could be attributed to continued use in the daytime program. However, at the time Mr. Evans' layoff was planned, the needs of the daytime program included a decrease of one full-time teacher. If Mr. Evans were to retain some teaching in the daytime program of approximately one third of his hours in order to permit his use in the evening program, then another full-time teacher in the daytime program would have to have his hours reduced by one third to meet the overall decreased need in the daytime program of one full-time teacher. It would be reasonable to assume that the teaching time displaced from the second full-time teacher's daytime load would be spread into the apprenticeship program at night so that the second teacher could retain a full-time load. Accordingly, we are satisfied that whether the increased cost is calculated on the basis of Mr. Evans alone or on the basis of Mr. Evans for 2/3 of his time plus another full-time teacher for 1/3 of his time, the increased cost to the apprenticeship program would be approximately $30,000. To increase the cost of the evening apprenticeship program by approximately $30,000 would increase the deficit some four to six times over what it is now. The - 17- evidence establishes that the one means by which the College could increase its revenue in the evening apprenticeship program~ the acquisition of more students, was not a realistic alternative at the time relevant to the grievance. Over the years the enrollment has remained constant at the approximate level of 130 students despite significant attempts to increase the numbers of students. Accordingly, we conclude that the College could not realistically anticipate an increase in the number of students to offset the increase in the expenses that would have resulted £rom the use of Mr. Evans in the evening program. Whether the apprenticeship program is essential and whether it would be appropriate for the College to operate the apprenticeship program at a substantially increased loss, is not a proper question for this Board of Arbitration to decide. The issue is whether the College was required to do so by the terms of the collective agreement in order to "give preference to continuation of full-time positions" within the meaning of article 8.0t~(c). We are satisfied that the College acted within its jurisdiction in determining that it was not economically viable to continue Mr. Evans in a full-time position by moving him into the evening apprenticeship program. The evidence reveals that the impact of so doing would be to substantially increase the economic cost of running the program in circumstances where the College could not anticipate being able to generate sufficient additional revenue to offset the increased costs. We are further satisfied that the College acted within its rights under the collective agreement when it decided that it would be confronted with substantial operational difficulties if it utilized Mr. Evans as a full-time teacher in the evening apprenticeship program. Given the scheduling restrictions in the collective agreement - 18- and the operational requirements of the apprenticeship program in respect of its hours and class times, we are readily satisfied that there were substantial operational difficulties in scheduling either one or more full-time teachers to work in both the daytime program and the evening program. It is our assessment that in the instant circumstances~ the collective agreement did not require the College to incur these operational difficulties and continue Mr. Evan's full-time position. In the result, I am satisfied that the College acted within its rights under the collective agreement when it declined to continue Mr. Evans' full-time position by allowing him to displace part-time teachers in the apprenticeship program. Given the detrimental impact of his so doing on the economic viability of the apprenticeship program~ and given the operational requirements of the apprenticeship program, the College was not obligated by the collective agreement to continue Mr. Evans' full-time position. Accordingly, for the reasons set out above~ the grievance is hereby dismissed. DATED at Toronto this 16th day of 3a~~ Pamela C. Picher - Chair I CONCUR. "Gob Gallivan College Nominee I DISSENT FOR REASONS TO FOLLOW. "Wally Majesky" Union Nominee