Loading...
HomeMy WebLinkAboutAugustin 16-01-14IN THE MATTER OF AN ARBITRATION UNDER THE COLLEGES COLLECTIVE BARGAINING ACT, 2008 ~ BETWEEN ~ SIR SANDFORD FLEMING COLLEGE OF APPLIED ARTS AND TECHNOLOGY (“EMPLOYER OR COLLEGE”) ~ AND ~ ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 352 (“UNION”) ~ AND ~ KAREN AUGUSTIN (“GRIEVOR”) BOARD OF ARBITRATION: Deborah Leighton, Chair Sherril Murray, Union Nominee John Podmore, Employer Nominee APPEARANCES: Catherine Peters, Counsel for the employer Jane Letton, Counsel for the Union 2 Award Introduction The union alleges on the grievor’s behalf that she was denied priority to hours of work [1] assigned to a new faculty member, who was not a partial load professor, contrary to Article 26. 10. D. The college denies that there has been any breach of the collective agreement. The hearing into this matter proceeded by way of an agreed statement of facts and oral argument. Statement of Agreed Facts 1. The grievor is entitled under the Article 26. 10 D of the Collective Agreement to priority consideration for certain Psychology courses offered by the School of General Arts and Science, including Introduction to Psychology (SOCI 36) and Psychology of Sport (GNED 35). 2. On July 5, 2013 the grievor was offered the following teaching assignment in the School of General Arts and Science for the Fall 2013 semester: GNED 035 Psychology of Sport 1-1 hour lecture + 2 – 2 hour seminars SOCI 036 Introduction to Psychology 2 – 2 hour seminars 3 Total 9.0 hours Note: all sections are at the Peterborough campus 3. The grievor accepted this teaching assignment on July 7, 2013. 4. On or about September 24, 2013, the Grievor was offered and accepted an additional two hours teaching a seminar in Introduction to Psychology, bringing her total workload to 11.0 hours. She started teaching this seminar effective September 30, 2013. 5. The Grievor’s final contract for the Fall 2013 semester is attached as Exhibit “A”. The Grievor’s timetable for the Fall 2013 semester is attached as Exhibit “B”. 6. After the Fall 2013 semester commenced on September 3, 2013, an additional 3 hours (comprised of 1 lecture hour and 2 seminar hours) became available in Psychology of Sport. These hours were for a dual credit course which was offered jointly by the College and a Lindsay high school, Lindsay Collegiate and Vocational Institute (LCVI). The dual credit course was offered off campus at LCVI in Lindsay, and was co-taught with a teacher from LCVI. 4 7. The three hours in the dual credit Psychology of Sport course became available before the Grievor was offered and accepted the additional two hours in Introduction to Psychology. 8. The Acting Dean of the School of General Arts and Science, Maxine Mann, did not believe at the time the workload assignments were made that she had an obligation under the collective agreement to build the Grievor’s partial load assignment to the maximum of 12 hours. In addition, she did not believe any of the three hours in the dual credit Psychology of Sport course could be offered to the Grievor due to the following timetable conflicts: a. The one-hour lecture in the dual credit Psychology of Sport course was scheduled for 9:00 am to 10:00 am on Tuesdays at LCVI in Lindsay. The Grievor was scheduled to teach a two-hour seminar in Introduction to Psychology in Peterborough commencing at 11:00 am Tuesdays. Dean Mann was of the view that there was not a sufficient window of time between these two classes to ensure that the Grievor would be able to complete her lecture at LCVI in Lindsay at 10:00 am, pack up her belongings, drive from Lindsay to Peterborough, and arrive on time to begin her seminar in Peterborough at 11:00 am. b. The two-hour seminar in the dual credit of Psychology of Sport course was scheduled for 9:00 am to 11:00 am on Thursdays at LCVI in Lindsay. The Grievor was not available to teach this seminar, as she was scheduled to teach 5 a two-hour seminar in Psychology of Sport in Peterborough in the same time slot. According to the College’s standard workloading practices, the lecture and seminar components of a dual credit course are not divided between two different faculty members, because it is important for pedagogical reasons to maintain teaching continuity between the two components of the course. 9. The Union and the Grievor have no direct knowledge concerning the reasons why the dual credit Psychology of Sport course was not offered to the Grievor. However, they agree for the purpose of this grievance arbitration that the explanation in paragraph 8 above is the explanation Dean Mann would provide if she testified at the hearing. 10. The three hours available in the dual credit Psychology of Sport course were offered to and accepted by Patrick Dwyer. Patrick Dwyer was no entitled to priority consideration for this course under Article 26.10 D of the Collective Agreement. 11. Patrick Dwyer’s timetable for the Fall 2013 semester is attached as Exhibit “C”. It is noted that the Introduction to Psychology lecture at 11:00 am to 12:00 pm on Tuesdays was a lecture Mr. Dwyer was auditing because he was teaching the seminar in that course on Tuesdays from 8:00 am to 10:00 am. He was teaching all other courses appearing on his timetable. 6 12. At the time Mr. Dwyer was offered the three hours available in the dual credit Psychology of Sport course, he had a timetable conflict between the one-hour lecture in the course scheduled for 9:00 am to 10:00 am on Tuesdays and the Introduction to Psychology seminar he was teaching on Tuesdays from 8:00 am to 10:00 am. However, he was available for the two-hour seminar scheduled for 9:00 am to 11:00 am on Thursdays. He was offered the dual credit Psychology of Sport course subject to the understanding that, if the lecture could not be rescheduled, he would have to withdraw from either the Introduction to Psychology course or the dual credit Psychology of Sport course. 13. After Patrick Dwyer was offered and accepted the three hours available in the dual credit Psychology of Sport course, he was able to arrange with the LCVI teacher with whom he co-taught the course to change the scheduling of the course to Thursdays and Fridays from 9:35 am to 10:50 am 14. Mr. Dwyer had not previously taught the Psychology of Sport course. The grievor met with Mr. Dwyer on a few occasions during the Fall 2013 semester and provided him with some suggestions regarding the course. 15. The Grievor and the Union allege that the Grievor should have been assigned the 3 hours in the Psychology of Sport dual credit course, in place of the 2 hours she was assigned in Introduction to Psychology, and should be compensated for the resulting 7 loss in earnings. The College does not agree that the Grievor is entitled to any compensation in this case. However, without prejudice to the College’s position, the parties agree that, had the Grievor been assigned the Psychology of Sport dual credit course in place of the Introduction to Psychology seminar, the difference in her gross earnings would have been $1,891.93. Submission of the Union Union counsel argued that the grievor should have been given priority pursuant to [2] Article 26. 10. D, to hours of work assigned to a new faculty member, Patrick Dwyer, who was not a partial-load professor. As noted in the agreed facts, Ms. Karen Augustin, the grievor, was assigned to two courses on July 5, 2015 for a total of 9 hours. She had previously taught Introduction to Psychology and Psychology of Sport. On September 24 she was offered and accepted two additional hours of teaching. However, before the grievor was offered these two hours and, after the start of the [3] semester, an extra section of Psychology of Sport was added to be taught off-campus at LCVI, a high school in Lindsay. The additional three hours were comprised of a one-hour lecture and a two-hour seminar. The course was to be co-taught with a teacher from LCVI. 8 In the submission of the union, these hours should have been offered to the grievor. [4] Instead, they were offered to Mr. Dwyer, who was not entitled to priority consideration under Article 26. 10. D. In making her decision to offer the work to Mr. Dwyer, the Dean concluded that given the grievor’s original assignment of teaching, she was not available on Tuesdays or Thursdays, as indicated in the agreed facts. However, counsel noted that Mr. Dwyer also had a timetable conflict with his original [5] teaching assignment and the new offer of three hours of teaching. Mr. Dwyer had a one-hour conflict with the lecture at LCVI, between 9:00 am and 10:00 am. His schedule was open during the scheduled seminar on Thursdays from 9:00 am to 11:00 am. The college offered this work to Mr. Dwyer on the understanding that he would attempt to reschedule the one-hour conflict on Tuesdays, and he was able to do this. The union submitted that since both faculty members had conflicts, the grievor ought [6] to have been given the opportunity to reschedule. By not affording her this opportunity, the college breached Article 26. 10. D. Further, the college should not have made assumptions that the grievor would not be able to travel between Lindsay and Peterborough on Tuesdays in time for her course on campus at 11:00 am. Since the grievor was subsequently offered and accepted two more hours of teaching, [7] the remedy sought is compensation for one hour a week of lost teaching. 9 Submission of the College Counsel for the college argued that the employer did not violate Article 26. 10. D. [8] She noted that this language was added to the collective agreement in September, 2012. The college takes a different view of the article and its application to the facts before us. Counsel argued that this language was not intended to make a fundamental change to [9] the college’s obligation to offer teaching assignments to partial-load professors. Further, she submitted that there is nothing in the article or the collective agreement that required that the college offer the course taught at LCVI to the grievor. The grievor had a significant timetable conflict. She had been hired as a partial-load professor that term: she had accepted nine hours of teaching. Therefore, there was no obligation to give her a further assignment that conflicted with her current timetable. In counsel’s submission, Article 26. 10. D must be read in the context of the whole [10] Collective Agreement. The college acknowledges that the employer must use partial- load, part-time and sessional professors. However, Article 2 provides that preference will be given to full-time positions over partial-load and sessional staff, subject to operational need. Counsel emphasized that Article 26 includes provisions which apply exclusively to [11] partial-load professors. Article 26.01 B defines a partial-load professor “as a teacher who teaches more than six and up to an including 12 hours per week on a regular 10 basis.” Partial-load employees do not have the job security afforded to full-time employees. In sum, counsel noted that the rights of partial-load employees are limited under the collective agreement. Counsel submitted that before the addition of Article 26. 10. D, the college had a [12] great deal of flexibility in what contract staff it hired, contract staff, being partial- load or part-time teachers. There was no language that required that the college hire any contract staff. The college could choose to hire part-time over partial-load teachers. Further, there was no obligation to assign a specific number of hours. For example, counsel stated that if a partial-load professor was assigned to teach seven hours and three more hours became available, the college had no obligation to assign these hours to that employee, even though the teaching might fall within the persons’ ability to teach the course. There was nothing that required the college to assign up to the maximum of twelve hours that a partial-load professor can teach. In addition, prior to Article 26. 10. D, there was no obligation to hire partial-load [13] employees from semester to semester. There was nothing in the collective agreement that required the college to consider the partial-load employee’s service history. If a partial-load teacher was assigned courses, which were subsequently cancelled, there was no obligation to reassign the employee. 11 In sum, the college was completely free to assign work as it saw fit, within its [14] management rights, subject to the standard that it not act arbitrarily, discriminate, or make a decision in bad faith. Counsel submitted that the question before us is how Article 26. 10. D changed [15] management rights to assign work. Counsel argued that the new provision does not change the college’s general right to hire teachers, and that we should not find a duty to hire when it is not expressly articulated. Counsel emphasized that there has been no change to Article 26. 10. A. Thus, the [16] partial-load professors still have no job security protection. All that has changed is the priority in hiring partial-load employees in specific circumstances. In counsel’s submission, the language clearly preserves the college’s right to determine whether there is a need to hire a partial-load teacher. If it does so, then the article provides that priority will be given to current partial-load employees in certain circumstances. The language clearly preserves the right for the college to hire a partial-load [17] employee or not. Further, there is nothing in the new provision that obliges the college to assign the maximum of twelve hours to a partial-load employee. Since the article is silent on these terms, it is clear that the college retains its management rights to assign work, subject to Articles 2.02 and 27.06. 12 When the college determines a need to hire a partial-load teacher, it may do so giving [18] priority to current employees on certain conditions. The three conditions found in Article 26. 10. D are that work will be offered to “current partial-load employees whose contracts will expire prior to the start of the assignment, and partial-load employees whose contracts have ended within six months of the start of the assignment.” If the first condition is met, then two further requirements provide: [19] (i) The partial-load employee must have previously been employed as a partial-load employee for at least 8 months of service as defined in 26.10 C within the last 4 academic years, and (ii) The partial-load employee must have previously taught the courses that form the new partial-load assignment. Thus, in counsel’s submission the new language is intended to benefit partial-load teachers with sufficient recent experience in courses previously taught by them. However, there is nothing in the collective agreement that requires the college to assign hours of a particular course to someone who has taught it before. Further, as argued earlier, counsel said there is no requirement to offer course hours to the maximum of twelve hours. The last sentence of the article is consistent with this. 13 Should enrollment lead to a course being cancelled there is no obligation to assign further hours to maintain a person’s partial-load contract. Applying this analysis to the facts before us counsel stated that the college decided to [20] teach nine hours of Introduction to Psychology and Psychology of Sport: the college understood that the grievor would have priority in hiring for both courses. Whether this was the intention of the new language, it was how the college understood it. Counsel pointed out that this interpretation is perhaps more generous than the language requires and this question is best left for another day. In any case the hours of work were offered to the grievor in July and the grievor accepted the contract. In September a further three hours became available teaching at LCVI in Lindsay. [21] The date is not clear. It was some time between September 3 and 16, when Mr. Dwyer began to teach the course. Counsel argued that three hours make it part-time work. There is nothing that obliges the college to offer these hours to someone on a partial-load contract. Thus, the article was not triggered – the priority in hiring did not arise. Regarding the need for Mr. Dwyer to reschedule the one-hour conflict raised by the [22] union, this was something that had to be done by the high school not the college. The grievor had a direct conflict on Thursday. She was already teaching the same hours at the college on Thursday. 14 In sum the college made the decision that the three hours would not work with the [23] grievor’s schedule, and the hours were offered to Mr. Dwyer. There was no obligation, as suggested by the union, that the college must offer hours until the maximum of 12 hours before offering additional work to those without priority. There must be clear language in the collective agreement to effect such a substantial change. Counsel argued that without it we should not imply it. If there was an obligation under the article, the grievor had a significant conflict. Had she given up a previous assignment to take three hours, it would create a domino effect, requiring the college to assign this work to another teacher. Therefore counsel submitted there is no violation of the collective agreement. [24] Analysis The question before us is how Article 26. 10 D alters the college’s management rights [25] to assign work to partial-load employees. Article 26. 10. D provides: Subject to the application of Articles 2.02 and 27.06 A, where the college determines that there is a need to hire a partial-load employee, it will give priority in hiring to current partial-load employees whose contracts will expire prior to the start of the assignment, and partial-load employees whose contracts have ended within six months of the start of the assignment if the following conditions are met: (i) The partial-load employee must have previously been employed as a partial-load employee for at least 8 months of services as defined in 26.10 C within the last 4 academic years, and (ii) The partial load employee must have previously taught the courses that form the new partial-load assignment. 15 The offer of partial-load employment is conditional on the college subsequently determining there is sufficient enrolment to warrant the assignment being offered. Counsel for the college made an extensive submission on the college’s management rights to hire, before the new language was added, for which the union took no issue. This history is important. There was nothing in the previous language of the collective agreement that required the college to hire any contract staff. It could choose to hire part-time over partial-load. Significantly, there was no obligation to assign a specific number of hours to a partial-load or to maximize hours for partial- load at 12. It is clear that prior to Article 26. 10. D the college was free to assign work to part-[26] time and partial-load employees as it thought fit, within its management rights, provided that it did not act arbitrarily, discriminate or make a decision in bad faith. Thus the question is how the language in Article 26.10 D changed the college’s [27] obligation under the article to assign work. We agree with the college’s submission that the new language does not alter management’s general rights to hire partial-load teachers. There is still no obligation to assign work to a maximum of 12 hours. Further, without clear, specific language on such an obligation, we should not imply it. There has been no change to Article 26.10 A and, thus no change to the job security [28] of partial-load employees. They still have no job security. We are persuaded that 16 Article 26.10 D preserves the college’s right to determine if and when to hire a partial-load professor. We also agree with the college’s position that if it decides to hire a partial-load [29] employee, the new language provides that priority will be given to partial-load employees if three conditions are met. Thus, if the college decides to hire a partial- load employee, priority will be given to current partial-load professors. The new language seems to be intended to benefit partial-load teachers with sufficient recent experience in courses previously taught by them. The college decided to offer the grievor 9 hours of teaching in the summer of 2013, [30] which she accepted. When three additional hours became available after the term had started in September, the college decided to offer the work to Mr. Dwyer. We are of the view that even if there was no conflict with this new assignment and the grievor’s schedule, the college was not obliged to offer this work to the grievor. The new language does not require the college to assign work to maximize a partial-load’s contract at twelve hours. The college certainly acted reasonably in deciding that the conflict in the grievor’s schedule was significant. She was already teaching in the two hours scheduled for the seminar in this course. For all these reasons, we have decided to dismiss the grievance. We would like to [31] thank counsel for their able and concise submissions. 17 Dated at Kingston, this 14th day of January, 2016 Deborah Leighton __________________________ Deborah Leighton, Chair John Podmore ________________________ John Podmore, College Nominee, concurring Sherril Murray __________________________ Sherril Murray, Union Nominee, dissenting Dissent With all due respect, the majority fails to give meaning to the fact that the grievor had indeed met the first threshold of Article 26.10 D. The college determined that they required a partial load professor and hired the grievor on a Partial Load contract of nine hours. The agreed statement of facts indicate that the person offered the course was not entitled to priority consideration. The college had retained the right to withdraw in part or wholly the contract to teach a particular course should enrollment become insufficient to continue the course. However, having sought the commitment of a Prof. to teach, it only stands to reason that the intent is to offer current partial load staff all courses available before considering other than partial load faculty. This member submits that only after partial load faculty has reached the maximum of twelve hours following the criteria of A 26.10 D may other than Full time or Partial load faculty may be hired. The only error made by the Dean was making a judgement call that the grievor could not manage the time frame allowed for travel. Had that factor not entered this scenario, the employer would have fulfilled its contractual obligation and offered the course to the grievor. Sherril Murray