HomeMy WebLinkAboutHeggart 93-04-30~ ~ IN THE MATTER OF AN ARBITRATION
ONTARIO PUBLIC SERVICE EMPLOYEES uNION
- and -
SAULT COLLEGE
Grievances of: D.i:Heggart - OPSEU ~91D969 J. Theil - OPSEU #91D970, 91D972
S. Verma - OPSEU #92B373
Before: M.G. Mitchnick - Chairman
Michael Lyons - Union Nominee
Jerry Courtney - Employer Nominee
Appearances:
For the Union: John J. Monger, Counsel
John Theil
Douglas Heggart
Subhash Verma
For the Employer: D.W. Brady, Counsel
Bob Cook, V.P., Academic
W. H. Robbins, Dean, School of Sciences
and Natural Resources
Hearings held in Sault Ste. Marie on April 8 and December 10, 1992.
AWARD
This matter involves the individual grievances of 3
Professors in the College's Engineering and Science Department,
and revolves around the application and interpretation of Article
4 of the parties' collective agreement. The initial grievances
of Professors Verma, Heggart and Theil dated January 3, 1991
state:
STATEMENT OF GRIEVANCE
The College has violated the Collective Agreement
by assigning work during the non teaching period
contrary to Article 4.08.
SETTLEMENT DESIRED
That the College comply with the Collective
Agreement.
Professor Theil also filed a grievance dated September 27, 1991
with respect to the subsequent year, which read:
STATEMENT OF GRIEVANCE
Failure by Management to comply with Article 4.08
of the Collective Agreement.
SETTLEMENT DESIRED
Compliance by Management with Article 4.08 of the
Collective Agreement.
The College year runs from September 1 to August 31, and can be
said to be made up of:
36 "Teaching" weeks
7 "Non-teaching" weeks
and --9 Vacation weeks
52
Article 4.08 deals with the "non-teaching" portion, and reads:
4.08 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
professionalism, the quality of education and
professional development.
Such activities will be undertaken by mutual
consent and agreement will not be unreasonably
withheld.
Such activities will neither be recorded nor
scheduled except as.in accordance with Article
4.01(7) (a).
When the concept of Standard Workload forms ("SWF"'s)
was introduced into the collective agreement in 1986, there may
have been some confusion over its application, and in that
initial year the ~Dean of this Department, Dean Robbins, required
the professors to submit an outline of their planned activities
for the non-teaching period, from which Dean Robbins prepared a
SWF. That has never been a requirement since, nor has any SWF
for the non-teaching portion of any professor's year been
produced. Nonetheless, Professor Theil, the only witness in the
case, has continued to prepare and submit a plan of his
activities for this period each year (which in his case is the
Fall Semester), and he notes that the Dean has never told him not
to. Professor Theil acknowledges, however, that at least as of
the fall of 1990, he was the only one of the professors to submit
such an activity outline, and that he is free to deviate from it
or re-allocate the time as he sees fit. Professor Theil also
-- 3' --
acknowledges that not all of the professors attend meetings
called during this period, and no attempt is made by the College
to follow that up. The list of planned activities filed by
Professor Theil for the 1990 Fall semester provided:
1990 - Fall Non Teaching - Schedule of Activities
Period Sept. 1 - Dec. 31, 1990
Working Days 86-7 statutory = 79
Less: Lieu Time 1 day )
Vacation 43 days) 44
Net Available Working Days 35 35
Work/Time Allocation - Days
Routine Office incl. meetings 5
Visits to book publishers, bookstores
university and college libraries 2
Co-op duties 3
P.D. (19 available) use 10
D.E. (as assigned) 5 25
Days available for C.D. 10
Curriculum Development
CIV-110 2
CIV-215 3
PPE-344 4 (start rev. of modules)
WTR-328 1 ~0
BALANCE 0
Total working hours for Academic Year 1584
Deduct Hours from Non-Teaching Semester 245
Hours Available for Remainder of Year 1339
Weeks: - 1991 W = 17
1991 S = 1~
Total 3--5
- 4 -
Hours per Work Week 1339/35 38~
Note: Hours in excess of 38~ for teaching
semesters to be counted as O.T.
1991-W SWF
C.D. WTR 324 2 WTR 201 5 (start lab revisions)
WTR 329 3
10
Added Jan. 21/91
Increase CM - Departmental or Div. From 0.75 to 1.0
Just what was the status of these Non-teaching period hours
appears to have become the subject of broader debate that fall
(of 1991), and a number of the Professors asked for some
clarification at a meeting with the Dean in September. Details
of that discussion are rather sketchy, but in the course of it it
is clear that the Professors asked the Dean what his own view of
a reasonable work week was in this non-teaching period, and the
Dean indicated that 35 hours seemed an appropriate figure. This
in fact is the number of hours specified in the collective
agreement for non-teaching staff like Counsellors and Librarians,
and the Professors took no quarrel with it (there previously had
been a dispute over whether 40 or 44 was an appropriate number).
Professor Theil testified that he took it that what the Dean was
saying in the discussion was that all professors had to put in a__t
least 35 hours a week, because the Dean at the same time had made
it clear that he expected the professors would do whatever was
necessary to ensure that they were up to date and able to do the
best teaching job possible; and in that sense, in Professor
Theil's words, to "justify" the time so spent in that period.
And all of that, Professor Theil testified, to his mind made
whatever duties he ultimately came to allocate to that period
assigned duties, and therefore properly attributable to a SWF.
It might be added that Professor Theil in his testimony also
pointed to two specific tasks that were assigned to him on the
initiative of the College during his non-Teaching period, being
the completion of course development for a new course being
taught in the Faculty, and redoing course outlines previously
submitted with respect to 4 courses of his own.
Following that meeting with Dean Robbins in December of
1990, the Professors set out their position to the Dean as
follows:
Further to our memoranda dated September 19, and
November 26, 1990, and our discussion on December 5th,
we are providing the following specific comments in
anticipation of your written reply.
As discussed on December 5th, the current practice
relative to the hours of work during each academic year
fails to recognize and give credit for complementary
functions carried out by staff during the non-teaching
periods. This is contrary to Article 4.08, which states
in part that; "Non-teaching periods are used for
activities initiated by the teacher and by the College
as part of the parties' mutual commitment to
professionalism, the quality of education and
professional development".
The regular/normal working hours that may be assigned
per year is defined as 36 weeks x 44 hours per week =
1584 hours under Article 4.01(2) (a). Based on the
current practice, however, each faculty member is
required to work a minimum of 1793 hours each academic
year without credit and compensation for the additional
209 hours (1793-1584). The total hours of 1793 is
calculated as follows:
Teaching Semesters/Contact Weeks
= 32 wks x 44 hrs/wk = 1408 hours
Teaching Semesters/Non-Contact
= 4 wks x 35 hrs/wk = 140 hours
Non-Teaching Semester = 7 wks x 35 hrs/wk = 245 hours
1793 hours
Pursuant, therefore, to the discussion on December 5th,
we wish to confirm our request for a written response to
our concern with respect to the excess non-credited
hours. Your response should be available within' seven
(7) days in accordance with Article 11.02.
No satisfactory reply resulted, and the first three of the
instant grievances were filed in January of 1991.
Professor Theil testified that the following September
he looked at Article 4.08 again and decided to submit a further
plan of his activities, this time specifically with the phrase
"mutual agreement" in mind, and accordingly accompanied his
outline, similar to the previous one, with a memorandum which
read:
Attached please find my proposed Schedule of Activities
for the 1991-Fall semester (non-teaching). The Schedule
is being submitted in accordance with Article 4.08,
toward mutual consent and agreement.
The Dean.replied in writing to that submission as follows:
This will confirm that we met on Sept. 25, 1991 to
discuss your complaint that article 4.08 of the
collective agreement has been violated.
You explained to me how you felt the total annual
workload was being exceeded if the Union limit were
applicable (copy attached).
- 7 -
The annual workload consists of assigned teaching and
unassigned complementary functions as per the attached.
The latter was submitted by you to me on Sept. 6, 1991
and I believe that it is mutually agreed that these are
appropriate functions for the period in which you have
no formal teaching assignments. I also believe, that it
is agreed that this work is being undertaken by you
according to the terms of Article 4.08 in that it is not
assigned, not scheduled and not formally recorded.
I therefore believe that article 4.08 has not been
violated.
With regard to the inclusion of all or part of this work
on the winter 1992 SWF, I do not agree that this work
was assigned nor that by your doing the work, any part
of the collective agreement limiting total annual
workload has been violated. There is, in my opinion,
therefore no reason for any part of this work to be
indicated on the winter 1992 SWF nor any other SWF.
Professor Theil responded with the fourth grievance the next day.
The Union submits that there are essentially three
questions that the instant grievances place before the board for
answer:
1. Can the College unilaterally assign complementary
functions during the non-teaching period?
2. Can the College unilaterally determine the number
of hours to be spent on complementary functions
during the non-teaching period?
3. Do these hours, whether "assigned" or "agreed", go
on the SWF's, and thus form part of the "maximum
workload" hours of 1584 in a year?
As can be seen, the focus in these questions and the grievances is
Article 4.08. It is not possible to deal with these questions,
however, without detailing the other provisions in the collective
agreement dealing with workload and attributable hours:
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 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 contract 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 contract 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.
4.01 (4)(a) Weekly hours for preparation shall be
attributed to the teacher in accordance with the following
formula:
TYPE OF RATIO OF ASSIGNED TEACHING CONTACT HOURS
COURSE TO ATTRIBUTED HOURS FOR PREPARATION
New 1 : 1.10
Established A 1 :'0.85
~stablished B I : 0.60
Repeat A " i : 0.45
Repeat B I : 0.35
Special A as indicated below
Special B as indicated, below
4.01 (4)(b) No more than four (4) different course
preparations or six (6) different sections shall be assigned
to a teacher in a given week except by voluntary agreement
which shall not be unreasonably withheld.
4.01 (4)(c) For purposes of the formula:
(i) "New" refers to the first section of a course
which.the teacher is
.teaching for the first time. (This definition
does not apply to a new full-time teacher who has
previously ta. ught the course as a partial-load,
sessional or part-time employee, nor to courses
designated as "Special" as defined below); or
.teaching for the first time since a major
revision of the course or curriculum has been
approved by the College.
(ii) "Established A" refers to the first section of a
course which the teacher'has previously taught but not
within the previous three (3) academic years.
(iii) "Established B" refers to the first section of a
course which the teacher h~s taught Within the previous
three (3) academic years.
(iv) Where a non-l~guage tours% is to be taught in
more than one language the first section taught in a second
language shall be regarded as "New" or "Established".
(v) "Repeat A" refers to another section which the
teacher is teaching concurrently with the same course for
which hours of preparation have been attributed under "New"
or "Established", but to studeuts in a different program or
year of study.
(vi) "Repeat B" refers to another section which the
teacher is teaching concurrently with the same course for
which hours of preparation have been attributed under "New"
or "Established" or "Repeat" to students in the same program
and yeam of study.
(vii) "Special A" refers to sections of courses in
which students may enter on a continuous intake basis or
/ 0
courses which have been organized into individualized self-
learning packages.
~he first section of a "Special A" course which the
teacher has not taught before or which the teacher has not
taught within the previous three (3) academic years attracts
the numerical value in "Established A" (1:0.85).
The first section of a "SpeCial A" course which the
teacher has taught within the previous three (3).academic
years, attracts the numerical value in "Established B"
"' (1:0.60)."
Repeat sections of a "Special A" course attract the
numerical value in "RepeatS" (1:0.45).
(viii) "Special B" refers to preparation for sections
of a course in which the objectives describe the.students'
application of knowledge i~ actual work settings.
The first section of a "Special-B" course which the
teacher has not taught before or which the teacher has not
taught within the previous three (3) academic years attracts
the numerical value in "Established A" (1:0.85).
The first section of a "Special B" course which the
teacher has taught within the previous three (3) academic
years, attracts the numerical value in "Established B"
(1:0.60)
. Repeat sections of a "Special B" course attract the
numerical value in "Repeat B" (1: O. 35).
Additional time necessary to arrange and prepare for
student placement in such learning situations shall be
attributed on an hour for hour basis and recorded on the
Standard Workload Form ($WF), as referred to Article 4.02
below.
(ix) Hours for curriculum review or course development
assigned to a teacher on an ongoing basis, in lieu of
teaching or in a non-teaching period, shall be attributed on
an hour for hour basis and recorded on the SWF.
4,01 (5)(a) Weekly hour~'for evaluation and feedback in a
course shall be attributed to a teacher in accordance with
the'following formula:
RATIO OF ASSIGNED TEACHING CONTACT HOURS TO
ATTRIBUTED HOURS FOR EVALUATION AND FEEDBACK
Essay or Project Routine or In-Process
Assisted
1:0.030 1:0.015 1:0.0092
per student per student per student
4.01 (~)(b) For purposes of the formula:
(i) "Essay or project evaluation and feedback" is
grading:
.essays
.essays type assignments or tests
... .projects;- or
.student performance based on behavioral
assessments compiled"by the teacher outside
teaching contact hours.
(ii) "Routine or assisted evaluation and feedback" is.
grading by the teacher outside teaching contact hours of
short answer tests or other evaluative tools where
" mechanical marking assistance or marking assistants are
provided. "
(iii) "In-process evaluation and feedback" is
evaluation performed within the teaching contact hour.
(iv) Where a course requires more than one type of
evaluation and feedback, the teacher and the supervisor
shall agree upon a proportionate attribution of hours. If
such agreement cannot be reached the College shall apply
evaluation factors in the same proportion as the weight
attached to each type of evaluation in the final grade for
the course.
4.01 (5)(c) The number of students in a course or section
shall be determined initially by the College's planning
estimates and recorded on the Standard Workload Form (SWF)
as provided for in Article 4.02.
The number of students in a course or section shall be
reviewed after the enrolment audit dates and not later than
the completion of the course or section or, at the request
of the teacher, following ~he last day for withdrawal of
registration by the student(s), and revised where
appropriate.
The number of students in a continuous intake program,
course or section shall be reviewed every three (3) months
at the request of either the College or the teacher and
determined as the weighted average of the number of students
formally registered over the duration of the program, course
or section. The weighted average shal~ be calculated by
summing the number of foj~mally registered students in each.
week of the program, course or section and then dividing the
sum by the number of weeks in the duration of the program, '
course or section.
4.0! (6) 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 basis.
An allowance of a minimum of five (5) hours of the
forty-four (44) hour maximum weekly total workload shall be
attributed as follows:
3 hours for routine out-of-class assistance
to individual students
2 hours for normal administrative tasks.
4.01 (7)(a) Where preparation, evaluation, feedback to
students and complementary 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.
4.01 (7)(b) Where there are atypical circumstances
affecting the workload of a teacher or group of teachers
which are not adequately reflected in this Article 4,
· .. additional hours shall be. attributed, following discussion
between each teacher individually and the supervisor, on an
hour for hour basis.
4.01 (8)(a) The College shall allow each teacher at least
ten (10) working days of professional development.in each
academic year.
4.01 (8)(b) Unless otherwise agreed between the teacher and
the supervisor, the allowance of te~..(10) days shall in61ude
one period of at least five (5) consecutive working days for
professional development.
4.01 (8)(c) The arrangements for such professional
development shall be made following discussion between the
supervisor and the teacher subject to agreement between the
supervisor and the teacher, and such agreement shall not be
unreasonably withheld.
4.01 (9) Teaching contact hours for a teacher in post-
secondary programs 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.
4.01 (10)(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 ~D excess of the forty-four (44)
hour weekly workload maximum shall be ~ompensated at the
rate of 0.1% of annual s~lary. Such overtime payments sh~l!
be for the greater amounts but shall not be pyramided.
4.01 (10~(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.
4.01 (10)(d) Probationary teachers shall not be assigned
teaching contact hoUrs or total workload hours in excess of
the maxima under any circumstances.
4.01 (ll)(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.
4.01 (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.
4.01 (11)(c) Teaching cOntact hours shall not exceed six
hundred and forty-eight (648) 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 post-secondary programs.
4.01 (ll)(d) Compensation for work in excess of the maxima
set out above shall be paid 'by the College to ~he teacher on
the basis of:
(i) 1/180 or 1/190 respectively of the teacher's
annual salary.~ot each contact day in excess
of 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 ~hall be for the greatest amoun~
and shall not by pyramided under thi~" Clause or under 4.01
(lo).
4.01 (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.
4.01 (12)(b) Every effort shall 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.
4.01 (12)(c) A teacher shall not normally be assigned work
on calendar Saturdays or Sundays. Where a teacher is
assigned to work on a Saturday or Sunday, the teacher shall
be credited with one and one-half (1 1/2) times the credit
hours normally give for hours so assigned and attributed.
4.01 (12)(d) A teacher may agree in writing to waive the
premium credits provided for in Article 4.01 (12)(c) above
for a specified period of time.
4.01 (13) Where a Union Local and a College agree in
writing on terms governing workload assignments at the
College, such agreements shall be binding on the College,
the Union Local and the teachers and timetables shall be
· established in accordanme with such local agreements.
4.02 (1)~a)(i) 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)(a)(ii) The College may, where a change in
circumstances requires it, amend assignments provided to a
teacher after the original assignment, subject to the
teacher's right to refer any matter to the College Workload
Monitoring Group (Group) ~eferred to in Article 4.02(2) (a)
and if necessary, the Workload Resolution Arbitrator (WRA)'
referred to in Article 4.02(5) (a) and appointed under
Article 4.02 (6) (a).
4.0Z (!) (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
preparations, type of evaluation/feedback required by the
curriculum, class size, attributed hours, contact days,
language of instruction and complementary functions.
4.03 The academic year shall be ten (10) months in
duration ...
The College also adds Article 7, Management Rights, which
provides:
Article 7
MANAGEMENT FUNCTIONS
7.01 It is the exclusive function of the Colleges to:
(a) maintain order, discipline, and efficiency;
(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 restricting
the generality of the foregoing, the right to
plan, direct and control operations,
facilities, programs, courses, systems, and
procedures, direct its personnel, determine
complement, organization, methods and the
number, location and classification of
personnel required from time to time, the
number and location of campuses and facilities,
services to be performed, the scheduling of
assignments and work, the extension,
limitation, curtailment, or cessation of
operations and all other rights and
responsibilities not specifically modified
elsewhere in this Agreement.
7.02 The Colleges agree that these functions will be
exercised in a manner consistent with the provisions of
this Agreement.
The College further draws the Board's attention to page 115 of
the collective agreement which describes the duties of a
"Professor" as follows:
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
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 of curriculum and other
consultative committees as requested.
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.
Having thus set out the evidence and relevant
provisions of the collective agreement, it is important to note
in some detail the actual positions adopted by the parties at the
conclusion of the proceedings before us.
The Union began by noting that, on the basis of the
Loyalist College (Dockrill) case, an unreported decision of
arbitrator Jane Devlin dated May 7, 1991, the College can make
assignments to teachers during the non-teaching period, using
Article 4.01(6) of the collective agreement, but they have to
attribute it (i.e., account for it on a SWF). In the present
case, the Union goes on, there were two examples involving Mr.
Theil: the course development he was asked to do with respect to
the new Distance Education course; and the revisions he was
instructed to do with respect to his previously-submitted course
outlines. On the second question posed by the Union at the
outset, the Union submits that on the evidence of Mr. Theil, the
board should find that Dean Robbins did in fact specify a minimum
number of hours to be worked during the non-teaching period, and
that such a requirement imposes a burden which the College, under
Article 4.08, is not entitled to, and which, in the absence of
"mutual agreement", circumvents the flexibility inherent in that
Article. Moving on to its question number three, the Union
submits that that mandated number of "work" hours, which Mr.
Theil filled with a variety of complementary functions, as set
out in his timetables each year, thus become "assigned" hours
within the meaning of Article 4.01(6), and must be SWF'd, as
determined by the Loyalist College case. As an "alternative"
argument, the Union submitted that Article 4 sets out a maximum
number of hours, being 36 weeks times 44 hours, or 1584 hours,
for the year, and that Article 4.02(1) (a) (i) and (1) (b) require
that "all details" of the "total workload" be set out in a SWF,
and that that includes all "complementary functions" for the
academic year, including those performed during the "non-
teaching" period.
For the College, Mr. Brady begins by noting from the
job description set out in the collective agreement exactly what
it is.that teachers are paid for, and notes.that there are
certain inherent professional responsibilities which arise from
that. Mr. Brady adds as well that the "academic year" for which
the teachers are being paid their annual salary is expressly
stated in Article 4.03 of the collective agreement to be "ten
months in duration". Mr. Brady notes that Article 4 then deals
with the workload of these teaching professionals, and attempts
to set limits. Article 4.O1(2) (a) in particular breaks those ten
months into a teaching and a non-teaching portion, with 36 weeks
at 44 hours being set as the limit on workload assignment for the
"teaching" period, and the "balance of the academic year" (the
"non-teaching" period), being allotted to complementary functions
and professional development. Thus, submits the College, it is
apparent that the 1584 hOurs is intended to apply to the work
performed only in the teaching period, and not as Mr. Theil and
the Union would have it, to the entire year. Article
4.01(4) (c) (ix) ties into 4.01(4) (c) (i), in the sense of referring
to College-approved course assignments, and Article 4.01(6)
describes the kind of expectations of the teacher's professional
role contemplated as well in Article 4.08 -- the difference being
attributed versus non-attributed "professional" time. The
College argues that the Loyalist case is distinguishable on its
facts, in that the responsibility to attend meetings there was
assigned, but that in any event the case is wrong, in that it
incorrectly fails to recognize that all of Article 4.01, and
4.01(6) in particular, applies only .to the "teaching" portion of
the year. What the board should have found (although, we note,
it does not appear to have been the College's argument there) is
that the power to "assign" in the non-teaching period stems from
the College's broad rights to manage, and not from the terms of
Article 4.06.
The College, further, takes the position that,
contrary to the suggestion made by Mr. Theil as a result of
submitting his timetable every year, and in keeping his log, the
professors in fact are not accountable for their non-teaching
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period at all, other than, as the Dean noted when asked, to use
this paid time constructively, to do whatever .it was the
professors felt was required to prepare themselves properly for
teaching their courses. If the professors wanted a "guideline",
the 35 hours suggested seemed like a reasonable one, but so would
40, or 30 hours be, as the professors saw fit. It is not, in
other words, the position of the College that there is a
specified minimum number of work hours a week for these
professionals during the "non-teaching" period, but rather that
the whole system operates on the "honour" system, driven only by
the teachers' own sense of professional responsibility. .Finally,
the College concedes that the two specific examples cited by the
Union were in fact assigned to Mr. Theil, as he claims, and that
as a result they must be credited on a SWF; however, the College
adds that those two items have already been dealt with by a
workload arbitrator, and Mr. Theil given the credit as a result.
Beyond that, submits the College, however commendable it might
be, Mr. Theil cannot by voluntarily preparing and providing the
Dean with a timetable for his proposed activities in the non-
teaching period, thereby write the clear language of Article
4.08, that none of these non-teaching-time complementary
functions be either recorded or scheduled, entirely out of the
collective'agreement, as Mr. Theil submitted in his evidence it
ought to be.
In making its own assessment of the issues before us,
it would appear to be necessary for the board to begin with the
decision referred to by the parties with respect to Loyalist
College. In that case the board noted that the issue placed
before it, as stated by the parties, was whether the College
could require a teacher to consent to attend a scheduled
curriculum review meeting in any non-teaching period pursuant to
Article 4.08 of the collective agreement. In that connection,
Article 4.O1(4) (c) (ix) once again provides:
Hours for curriculum review or course development
assigned to a teacher on an ongoing basis, in lieu of
teaching or in a non-teaching period, shall be
attributed on an hour for hour basis and recorded on the
SWF.
However, the board found that in the case in question the teacher
was only being asked to attend the occasional cUrriculum meeting,
and thus that the assignment was not being done on an "ongoing
basis". Therefore, the board concluded, that particular sub-
article had no application. Since the parties were dealing only
with the non-teaching portion of the year, that might have left
the matter to be determined solely within the provisions of
Article 4.08 itself, as certainly the College at least had argued
(see page 14 of the award), and as the framing of the question
seemed to anticipate. That is, as the College argued it, given
the need to attend the occasional meeting of the curriculum
committee as part of the professional responsibility of the
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teacher, could the teacher's resistance to this be said to be a
case of "unreasonably withholding" consent? The board, however,
considered that "curriculum review" could only be dealt with as
an "assigned" complementary function, but at the same time
interpreted Article 4.O1(6) as giving the College the express
right to assign such complementary functions at any time. But
that also'meant, by the terms of Article 4.O1(6) itself, that all
of those hours had to be SWF'd, and thus, as the board noted,
dealt with as a matter of overall workload.
The Loyalist College case was one of first impression,
and it would appear from the "Addendum" that all members of the
board were satisfied with the result. Having regard to the
issues and arguments put to us here, however, we would prefer to
approach the matter a little differently. Article 4.O1(2) (a)
does, as the College submits, appear to make a clear distinction
between the period of "teaching contact!', comprised of a maximum
of 36 weeks at 44 hours a week, and "the balance of the academic
year", which, with the "vacation" period already excluded by the
ten-month provision, means the "non-teaching" portion of the
academic year. The collective agreement leaves no doubt that
that non-teaching portion of the year, during which the teachers
are paid, and are not on vacation, contemplates the continuation
of various~kinds of "complementary functions" relating to
teaching, absent the interruptions for classroom teaching itself.
We say the collective agreement leaves no doubt because Article
4.O1(2) (a) expressly states that, i.e.:
The balance of the academic year shall be reserved for
complementary functions and professional development.
The difference, however, is that, firstly, the hours are not
"attributable". That would be clearer if the sentence relating
to "the balance of the academic year" were placed at the end of
Article 4.O1(2) (a), rather than interrupting it. However, it is
made clear enough by the express words of Article 4.08, in
dealing with ~his "non-teaching" period of the year specifically,
that "such activities shall neither be recorded or nor scheduled"
(except with respect to the mutual scheduling obligation of
Article 4.O1(7), the so-called "unchaining" article dealing with
off-campus activity). That notation, it seems to us, is meant to
maintain consistency with the overall purport of the Article, and
that is that this non-teaching time, at the same time that it is
non-attributable, is also non-"schedulable" simply at the
discretion of the College. Rather, how this "non-teaching"~time
is to be used by the individual professor to carry out the
complementary functions and professional development necessary to
his or her course assignments and professional responsibility is
a matter within his or her discretion. And this latitude granted
the professors in their "non-teaching" period would seem to be a
balance with the 44-hour number accepted by the parties as the
typical, non-overtime work-week expected from the professors
during the teaching, or attributable, part of the year. It is
also why, recognizing the exigencies that may arise for the
College with respect to a professor's input or assistance during
the non-teaching portion of the academic year, while consent from
the professor in such instances is in fact required, such
consent, it has been agreed, will not be "unreasonably" withheld.
This of course is in contrast to the express provisions of
Article 4.01(6), which we agree with the College applies to the
teaching portion of the year only, and which stipulates that
complementary functions may be unilaterally assigned by the
College (and then SWF'd), and of Article 4.01(4) (c) (ix), whiCh
creates a recognized exception for traditional matters,
curriculum review and course development, with respect to both of
which the College is given back the unilateral right, even in the
non-teaching portion of the year, to assign and schedule on an
"ongoing basis". And once again, where the College does choose
to exercise that right, those hours become SWF'able. The
situation that was before the board in Loyalist College, we
should note for clarity, was not that, but rather involved only
the College's request that the teacher attend "occasional"
meetings on curriculum review. Thus, as the College argued, it
was not a matter of the College having to "SWF" those hours, but
rather was the more fundamental one, which the College would have
to demonstrate, of whether any lack of consent to accept that
more limited assignment on the part of the teacher would be said
to be an "unreasonable" one.
- 25 -
Bringing all of that back to the case and issues raised
before us, the College has made it clear that .it does not adopt
the position that it has the right to specify a minimum number of
hours of "work" per week during the non-teaching period. Nor do
we find that to have been the effect of the remarks attributed in
the testimony to Dean Robbins. The Dean only made the comment
that he did in response to the faculty members having pressed him
for a number, and we take his response to have been no more than
a "guideline", as solicited, in the context of his comment in
general that what was expected during this paid period away from
the classroom was that the teacher would do whatever he or she
felt was necessary to properly prepare for the teaching period.
That in our view is not the kind of "assignment" to the
professors that would run afoul of Article 4.08. The only
exceptions by way of specific examples before us here were the
two cited in argument by the Union -- but the College asserts,
and it does not appear to be denied, that both of those examples
have now~been redressed for Mr. Theil through the medium of a
workplace arbitrator. In light of that, it appears that there is
nothing more for this board to direct.
On the actual facts before us, therefore, we conclude
that there has been no "assignment" during the non-teaching
portions of the grievors' academic years for which an appropriate
remedy has not been sought and obtained elsewhere, and the
grievances are dismissed.
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Dated at Toronto this ~ay of ~ , 1993.
CHAIRMAN
I CONCUR/DISSE~T: ~ ~ £
UNION NOMINEE