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HomeMy WebLinkAboutHutchinson 16-01-16 IN THE MATTER OF A WORKLOAD RESOLUTION ARBITRATION BETWEEN NORTHERN COLLEGE (Herein after referred to as “the College”) AND THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 653 (Herein after referred to as “OPSEU”) COMPLAINT OF BILL HUTCHINSON ARBITRATOR: Tanja Wacyk APPEARANCES: FOR MR. HUTCHINSON: Lad Shaba, President, OPSEU Local 653 FOR THE COLLEGE: Natalie Dorval, Supervisor, Employee Relations; Tori Hanson, Dean Trades &Technology, and Workload Monitoring Group Co-Chair, Dean Lessard, Associate Dean, Business, Community Services & International, and Workload Monitoring Group Member LOCATION OF HEARING: Timmins DECISION 1. This decision deals with the workload complaint of Mr. Bill Hutchinson, pursuant to Article 11 of the Collective Agreement. Mr. Hutchinson is a Professor in the Applied Technology Department. BACKGROUND: 2. The following facts are not in dispute. 3. Mr. Hutchinson was absent on medical leave for several months prior to the Fall 2015 Semester. Prior to his leave, he had been issued a SWF in the normal course for that Semester. That SWF had two courses - Electrical Theory and two sections of Electro 1. 4. The Electrical Theory course started in mid-August, during Mr. Hutchinson’s absence. The College arranged for another full time Professor, with the appropriate qualifications, to teach the course. That Faculty member was scheduled to teach the first two weeks of the course in an event. Ms. Hanson explained that finding a teacher with the certificate of qualification to teach those courses was always a challenge, and that Professor requested and was given an undertaking that if he agreed to teach the course, he would retain it for the entire semester. 5. By medical documentation received on September 28, 2015, the College was advised Mr. Hutchinson would return to work on October 22, 2015. 6. A “Return to Work” meeting, involving both Union and College representatives, subsequently took place on October 14, 2014. During that meeting Mr. Hutchinson was presented with a revised SWF by Ms. Hanson, his supervisor. The eight hour Electrical Theory course had been removed from Mr. Hutchinson’s SWF. Instead, the College substituted a two hour Electrical Motor Control lab, with a repeat section, for a total of 4 hours. 7. The SWF is unsigned, which the College maintains, and I accept, demonstrates it is a draft. 8. The next phase of the Electrical Theory course was to start on the October 26, 2015, and Mr. Hutchinson had timed his return in order to assume responsibility for the course at that time. However, because of the commitment made to the Professor who had started teaching the course in August, i.e. that he could retain it for the semester, the College had removed the course from Mr. Hutchinson’s SWF, and substituted the Electrical Motor Control lab. 9. Mr. Hutchinson received the course outline for the Electrical Motor Control lab on October 15, 2015. 10. Mr. Hutchinson took issue with the change, on the basis he did not have sufficient time to review and prepare the course material for the Electrical Motor Control lab, and asked for the reinstatement of the Electrical Theory course on his SWF. 11. At a meeting on October 26, 2015, Mr. Hutchinson was presented with his final SWF, which maintained the Electrical Motor Control lab. However, in addition to the designated preparation time, the SWF allotted an additional six hours per week of complementary time to assist Mr. Hutchinson to prepare for teaching the lab. COLLECTIVE AGREEMENT PROVISIONS: 12. The applicable collective agreement provisions are: 11.02 A 1(a) Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload with the teacher and complete the SWF, attached as Appendix I, to be provided by the College. The supervisor shall give a copy to the teacher not later than six 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. 11.02 A 1(b) 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 (WMG) referred to in 11.02 B l and if necessary, the Workload Resolution Arbitrator (WRA) referred to in 11.02 E l and appointed under 11.02 F 1. ARGUMENTS: Mr. Hutchinson and the Union 13. Mr. Hutchinson and the Union pointed out the assignment of a new course is anxiety-producing at the best of times, and maintained the substitution of the Electrical Motor Control lab for the Electrical Theory course on Mr. Hutchinson’s SWF significantly increased his workload. 14. In this instance, in addition to the short notice regarding the change, Mr. Hutchinson indicated the required lab equipment was in disrepair and missing parts. This required Mr. Hutchinson and the laboratory technician responsible for maintaining the equipment, to scramble to get it functioning. 15. Mr. Hutchinson requested overtime for six weeks, to compensate for the extra time he required to review and prepare for the new Electrical Motor Control lab course. The six weeks was based on the language of subsection 11.02 A 1(a) of the Collective Agreement, set out above, which states that prior to establishing a total workload for any teacher, the supervisor shall give a copy of the SWF to the teacher, not later than six weeks prior to the beginning of the period covered by the timetable. 16. Mr. Hutchinson and the Union maintain that without the six week’s notice mandated by article 11.02 A 1 (a), he is entitled to overtime compensation for that period of time. Specifically, Mr. Hutchinson and the Union point out the direction that the supervisor “shall” discuss the proposed workload, and “shall” give a copy to the teacher not later than six weeks prior to the beginning of the applicable period is imperative. They point out this is supported in the WRA decision of J. David Whitehead, in Niagara College of Applied Arts & Technology, dated October 23, 1995. 17. Mr. Hutchinson and the Union submit the six weeks mandated in article 11.02 A(1)(a) is to provide adequate time for course preparation, and it is the loss of this preparatory time that is at issue. They maintain the preparatory time is critical, and that it is not sufficient to address the additional workload through compensatory complementary time. Rather, they submitted that a finding to the contrary would essentially eliminate the requirement for six week’s notice set out in article 11.02 A 1(a), allowing the College to change any number of the assigned courses mid- semester without adequate notice to prepare. 18. Further, Mr. Hutchinson and the Union point out the right to amend assignments set out in article 11.02 A1(b) is not absolute, as it is subject to a teacher’s right to refer the matter to the College Workload Monitoring Group and if necessary, to a Workload Resolution Arbitrator, to deal with any egregious changes or changes that would cause undue hardship for the faculty member. 19. Mr. Hutchinson and the Union request a declaration the Collective Agreement has been violated and an order for the appropriate compensation. College 20. The College submitted that because Mr. Hutchinson was on an extended leave, the College had to reassign the Electrical Theory course work. It indicated his absence was a “change in circumstances” and relied on article 11.02 A 1(b), set out above, as its authority to amend Mr. Hutchinson’s SWF. 21. The College pointed out that as a result of his amended SWF, Mr. Hutchinson had a lower teaching load and more preparatory time. Specifically, Mr. Hutchinson had four fewer teaching contact hours than on his initial Fall SWF, and an additional six hours of preparatory time per week for the Electrical Motor Control Labs. 22. The College further pointed out Mr. Hutchinson had had the course outline since October 15, 2015, and had an additional two full days to prepare for the lab, as he returned to work on Thursday, October 22, 2015, but was not scheduled to teach until the following Monday, October 26, 2015. In addition, the College pointed out Mr. Hutchinson’s workload not entirely new, in that he maintained the Electro I Course from his original SWF. 23. The College argued that in all the circumstances, Mr. Hutchinson was fairly compensated, over and above the designated preparatory factor. 24. Finally, the College argued that given that he had already been attributed more preparation time that designated by the workload formula, ordering the College to also paying an additional sum of money, as sought by Mr. Hutchinson, would be punitive to the College rather than compensatory to Mr. Hutchinson. ANALYSIS: 25. The first issue I must determine is whether article 11.02 A 1 (a) applies to the facts in this instance. 26. Article 11.02 is the provision which dictates the process for establishing and finalizing teachers’ workloads. It begins with 11.02 A1 (a) and is followed by detailed provisions regarding what is to be included in the SWF; what a teacher must do on receipt of the SWF if s/he is or is not in agreement with the SWF; and how disagreements regarding the SWF may be resolved; including by a local agreement, as set out in article 11.02 G, the final provision. 27. Accordingly, when article 11.02 is read in its totality, it is apparent the first steps for establishing a teacher’s workload are those set out in article 11.02 A 1 (a). They begin with a discussion early enough in time to provide the SWF to the teacher no later than the six weeks prior to the period covered by the timetable. 28. Critical for this grievance is the last sentence of 11.02 1 (a) which addresses what must occur if the SWF is subsequently revised by the College, as was the case in this instance: …It is recognized that if the SWF is subsequently revised by the College, it will not be done without prior consultation with the teacher. 29. There is no other express procedural requirement for subsequent revision of a SWF. Specifically, there is no express requirement for six week’s notice for the amendment of a SWF. Further, if it had been the parties’ intention that an additional six week timeline was required, they could easily have so indicated. However, I find that is not the case. 30. Further, I find the decision in Niagara College of Applied Arts & Technology does not assist Mr. Hutchinson in this instance. In that case, the teachers had not received their initial and apparently only SWFs within the six weeks prior to the period covered by the SWF. Those facts are to be distinguished from the facts in this instance, where there is no dispute Mr. Hutchinson received his initial SWF in a timely manner. Rather, the dispute is regarding what ought to have occurred when that SWF was amended. 31. Further, while Mr. Hutchinson and the union submitted the six weeks required by Article 11.02 1 (a) is to allow for adequate course preparation, it is also apparent the six weeks is to allow for the dispute resolution process to be completed in the event of a dispute. 32. Accordingly, I find the only procedural requirement for subsequent revision of an established SWF by the College, is that a prior consultation be conducted with the teacher, as set out in the last sentence in article 11.02 1 (a). 33. In this instance, I find that consultation took place with Mr. Hutchinson on October 14, 2014, when he was provided with the draft SWF. As indicated above, I accept that it was draft, as not only was it unsigned, but it was also subsequently revised to address, at least from the College’s perspective, Mr. Hutchinson’s concerns. 34. I appreciate Mr. Hutchinson’s concerns and frustration regarding having this new course substituted, at a fairly late stage, for a course with which he was familiar. This no doubt created anxiety and frustration on his part. However, my decision is governed by the terms of the Collective Agreement which fall short of providing Mr. Hutchinson with the six weeks notice he and the Union seek. 35. That having been said, this does not mean the College has license to simply change a SWF at will. Rather, Article 11. 02 1(b) requires a “change in circumstances” in order to make such a change. This is consistent with a shorter time frame for making the change as it suggests an occurrence over which the College had little notice or control, and must make adjustments as soon as reasonably possible. 36. In this instance, there was no dispute that a “change of circumstances” had occurred in this instance. Further, I find the attribution of six hours of complementary time over and above the preparation factor designated by the workload formula to be reasonable, and find no violation of the Collective Agreement. DISPOSITION: 37. Accordingly, for the reasons set out above, this complaint is denied. DATED AT TORONTO, THIS 16TH DAY OF JANUARY, 2016. “Tanja Wacyk” Tanja Wacyk, Arbitrator