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HomeMy WebLinkAboutNewell 87-03-22.25-x-frte:: a//0-7, /////rib IN THE MATTER of a Collective Agreement between the Ontario Council of Regents for the Colleges of Applied Arts & Technology and the Ontario Public Services Employees Union (for Academic Employees) AND IN THE MATTER of a continuation of an Arbitration pursuant to Article 4.02 of the said Agreement, initially heard on Friday, the 23rd of October, 1987, in London and continued on Friday, 12 February, 1988, Friday, 26 February, 1988 and Tuesday 8 March, 1988, in London, before Brian A. Foster, Workload Resolution Arbitrator. B E T W E E N: MARY LOUISE NEWELL Teacher - and - -FANSHAWE COLLEGE OF APPLIED ARTS & TECHNOLOGY College APPEARANCES Teacher Mary Louise Newell For the Union - Gary Fordyce Tom Geldhard For the College - D.L. Busche I. Hobbs - 2 -- ISSUE TO BE DETERMINED In my interim award, dated the 13th of November, 1987, I concluded that a determination of whether the number of weekly attributed hours for this teacher for the work on the WMG during the period of 1 September, 1987 to 3 January, 1988 is sufficient, was within my jurisdiction to decide. I will not repeat the reasoning contained in that interim award. I indicated that the College, Union Local and Teacher could meet with me to determine the procedure to be followed in order to determine the necessary number of attributed hours for Ms. Newell in her role as a Faculty Member of the WMG. Because of the amount of materials and argument put forward by both sides, the matter was continued during three half days, specifically Friday, 12 February, Friday 26 February and Tuesday 8 March, 1988. At the completion of the Hearing, I was left to determine whether the time release of five weekly attributed hours on Mary Louise Newell's SWF for the College Workload Monitoring Group from 1 September, 1987 to 3 January, 1988 is sufficient under all of the circumstances. PRELIMINARY OBJECTIONS Simply stated, the College position with respect to my interim award of 13 November, 1987, is that I am wrong. The College emphasized that the matter before me relates solely to the Teacher, Mary Louise Newell, and a single SWF, governing the period 1 September, 1987 to 3 January, 1988. The College adamantly advanced the position that irrespective of the outcome of this Hearing it was confined to the limitations referred to herein. Additionally, the College adamantly advanced the position that, as indicated above, my interim award is wrong, and the matter that was now was being heard was and is outside my jurisdiction, and is properly governed by Article 13 of the Collective Agreement. Finally, the College refered to specifics within my interim award. First, on page 6, line 4, I stated "there is no disagreement to that". I was referring to the Teacher's position that weekly attributed hours for her involvement in the WMG forms part of the Complimentary Functions for the academic year on her SWF. The College objected to the statement quoted and indicated that it did in fact disagree. I can only remind the College of the Memorandum of B.D. Moore, President, dated the 23rd of September, 1987 directed to Chairpersons and Principals with copies to Deans, WMG members and Vice Presidents. The Memorandum refers to "Past Practice" and to "Policies and Procedures...". Page 4 of the appended Manual, which incorporated the Policies and Procedures for preparation of SWS's, referred to Complimentary Functions. As indicated before, Appendix D, part of that Manual, included the standard time allowance allotted by the College. And, as indicated before, the WMG is listed and is shown as having five complimentary hours per week in accordance with WM-86-35 re: Allocation of Hours. I simply cannot accept that the College did not agree that weekly attributed hours for a Teacher's involvement with the WMG would form part of the Complimentary Functions for the academic year on the SWF. On page 7 of my interim award, commencing on the fifth line from the bottom of the page, I indicated that: "The College emphasized that the items listed in that Memorandum were the result of the procedural issues discussed and agreed upon by all of the members of the WMG. Had there been no agreement, there would have been no Memorandum". - 5 - The College now states that the WMG never agreed as I had indicated. In reviewing the evidence adduced during the initial hearing, and reviewing the documentation provided, I believe that my comments on page 7 reflect the situation as it was. I believe that this is an appropriate place to deal with this continued objection by the College relating to whether Article 13 governs the appointment by the Union Local of the four members to the WMG. I have considered Article 13. Article 13.01 cannot be stretched to include members of the WMG upon any reasonable interpretation of the wording. Article 13.02, likewise, cannot be so extended. Neither can Article 13.03 or 13.04. A careful review of the wording reveals that those sections deal with the release of specific people for specific functions. The only "catch all" that might conceivably be utilized is in Article 13.02 where it reads: such other join (sic joint) Union Management Committees as the Union and Council may subsequently agree in writing will be similarly treated for fifty percent (50%) of the regular salary portion thereof". Article 13.05 appears to envisage something different again. It provides for a reduced teaching or work assignment of 6 a full-time person for the purpose of assisting employees and the Union Local in the administration of this Agreement and the business directly pertinent thereto. The parties appear to be given a free hand in determining the basis upon which reduced teaching or work assignments are to be dealt with. If such a mutually agreed upon resolution is impossible, Article 13.05(b) imposes a formula. And, with respect to any reduction in workload, the Union Local is to reimburse the College in accordance with the terms set out therein. Quite frankly, I am of the view that somewhere within the contents of Article 13.05 the mechanism exists, or perhaps existed, to deal with the appointment of Faculty Members to the WMG for the Union Local. Surely the functioning of the WMG is something that falls within the "purpose of assisting the employees and the Union Local in the Administration of this Agreement and the business directly pertinent thereto". The establishment of the WMG is part of the Agreement. Its operation is designed to "assist employees" and it is certainly of the part "business" of the Agreement. Had the College adopted that position when the WMG was being set up, it seems to me that the Union Local would have had no choice other than to deal with the matter under Article 13. 7 But, the matter before me is not between the Union Local and the College. It is between a Teacher, who happens to be a Union Local appointee to the WMG, and the College. Everyone present may recall my comment about whether it was necessary that a faculty member be appointed to the WMG or whether in fact such an appointment could be made to anyone by either the Union Local or the College. But, the fact is that we are dealing now with a Teacher, a member of the Faculty, and a person who's total workload assignment is governed by Article 4. The short answer to the College's concern relating to Article 13 is that, at this point, it is out of time. Obviously, it has its remedies and could quite conceivable make decisions that would, or could, effectively end the usefulness of the WMG as it is currently constituted. Given what I believe to have been the tremendous success of that body over the past two years, it would be my sincere hope that such drastic steps would not be taken; but clearly, that is something not within my jurisdiction. Other Articles, specifically Articles 14 and 15 were put forward during the course of argument. I have carefully considered those. I have considered them only to determine how an appointee is treated with respect to time release and/or workload reduction. With respect to Article 14, I am entirely mystified as to how a Union appointee to the College Committee is treated with respect to time release or workload reduction. Certainly there is nothing in Article 14 that deals with the matter. I can only conclude that there is either an Agreement in writing pursuant to Article 13.02 or there is an Agreement under Article 14.05. On the other hand, Article 15 not only provides for release time from duty without loss of pay for the purpose of attending meetings, but the Employee/Employer Relations Committee is also referred to in Article 13.02. However, neither of these Articles deals with time release or workload reduction with respect to Union Local appointees to the WMG. I wish to emphasize, however, that I have gone into this discussion with respect to these Articles only because they were put before me by the parties, and because I believe that as a result I have an obligation to comment accordingly. Nothing, turns on it because of what I have stated above and because of what I will state hereafter. Again, because of the positions put before me during this Hearing, I believe that it is necessary to at least comment on the Union Local and College responsibility with respect to the establishment of the WMG. As indicated, the Collective Agreement does not directly or otherwise provide for release time or workload reduction for a Faculty member of the WMG. However, as indicated in my interim award, the WMG is a mandatory body pursuant to Article 4.02(2)(a). There shall be a College Workload Monitoring Group at each College. It must consist of eight members, four appointed by the College and four appointed by the Union Local, unless otherwise agreed. The functions of the Group are set out in Article 4.02(3)(a). It should be noted that the description contained therein is not exclusive. The subsection simply says that "the functions of the Group shall include: ...". In my opinion, the functions of the Group could include other things as well, but must include items (i) through (v). The remaining subsections relating to the functioning of the WMG are set up to ensure that it in fact does do something with respect to workload. And, if it does not, those people affected by the failure of the Group to function have recourse to a WRA. The responsibility of ensuring that the WMG is established and functions rests, in my opinion, with the Union Local and College equally. Therefore, in my opinion, when the WMG was initially set up, the College could well have taken the position that release time or workload reduction for faculty members appointed to that body was to be dealt with under Article 13. However, it did not. It - 10 - proceeded, instead, in the manner described in my interim award in this matter. And, while I still most firmly believe that the obligations relating to the WMG rest equally with the Union Local and the College, I am of the view that, for the purposes of this Hearing, the actions of the College to date with respect to the operation of the WMG have effectively negated its right to fall back for relief to an interpretation of Article 13. Therefore, I take it as a fact, based on the practice and procedures set out by the College, that a faculty member appointed by the Union Local to serve as a member of the WMG is entitled to have his/her time related to that Committee reflected as attributed weekly hours under Complimentary Functions on his/her SWF. And, as indicated in my interim award, because it is part of the SWF, part of the Workload Assignment, it is subject to review by the WMG, and ultimately a WRA, if necessary. As I said before, while it is unlikely given the politics, the WMG could, by majority or unamimously, decide the number of hours to be attributed to a Faculty member as an appointee to the WMG pursuant to Article 4.02(3)(iv) and Article 4.02(4)(d). And, if the WMG cannot reach a decision, the matter, as in this case, can be referred to a WRA, irrespective of the concerns I raised in my interim award. CONSIDERATION OF TIME REQUIREMENTS OF A UNION LOCAL APPOINTEE TO THE WMG At the outset of this discussion, I should like to note once again that I was reminded by the College that this particular hearing relates to Mary Louise Newell, and her fall 1987 SWF. I should also like to note the vehement protestations of the Teacher and Union members with respect to the fact that the other Union Local WMG Members have simply held back on their complaints until this complaint was dealt with, on the obvious misunderstanding that this Award would then be utilized to determine their respective complaints. Certainly, my review of the Minutes of the meetings of the WMG, and my experience from sitting as a WRA in the past, lead me to believe that it is not an uncommon practice for one of a number of similar complaints to proceed to a Hearing at this level while the remainder abide the outcome. I am certainly not prepared to get into that argument, but would only note in passing that if it had been clear to everyone concerned at the WMG level, and assuming that the complaints of the other members relate to the same time frame, there is absolutely no reason why all of the complaints could not have been brought forward to be heard at the same time as this complaint. The fact is that I have been provided with a great deal of - 12 - evidence, from both sides, dealing with each of the Union Local WMG Members, Fordyce, Geldhard, Richardson and Newell. It strikes me as rather strange that the other complaintants would agree to abide the outcome of this matter, and if from this award a policy could not be determined to resolve their complaints, agree that each would then proceed on its own. Obviously, someone wanted a further kick at the can in response to an unfavourable Award. All of that aside, the fact is that the functions of the WMG are set out in Article 4.02(3)(a). It has already been noted that the listing contained therein, is not exclusive. Rather, it is designed to include those items contained therein but perhaps other things as well. Obviously though, the function must relate in some way to Workload disputes and could include, perhaps, the preparation of an annual report. However, in order to perform the functions given to it, the WMG must meet and carry out its mandate. Certainly, there is no serious argument that only the actual meeting time is necessary in order for the Group to perform its duties. The College concedes that WMG work extends outside of the meeting room, and, the issue is how far outside that room it should extend in order to do its job. - 13 - It is obvious to me, from a review of everything including the Minutes, that the WMG recognizes its mandate, and certainly tries to deal with its area of responsibility. It is not difficult to see how much time was consumed by actual WMG meetings as that figure is set out in the Minutes. Whether the actual meeting time, for instance during the fall of 1987, is sufficient meeting time in order to ensure compliance with its mandate is not readily ascertainable. Members on both sides obviously have certain time restraints within which they are operating, and it is difficult to accurately determine whether additional meeting time itself would produce better results or would simply be a waste of time. However, in reviewing all of the statistics available for the relatively short history of the WMG, it would appear that the average per week, considering total meeting hours, is 3.1 hours. The average for the WMG meetings during the fall of 1987 appears to be 3.0 hours. In the first instance, Ms. Newell's average per week is 2.4 hours and in the latter instance, 2.1 hours per week. The total average attributed weekly allowance is 5.3 hours, and the average attributed weekly allowance for the fall of 1987 is 5.0 hours. Each side has provided me with a wealth of information. I have tried to carefully consider everything - 14 - provided to me. I do not intend to review in this award each document and each statistic provided to me. It is my opinion, that on the whole, one should expect an average WMG meeting to take at least 3.0 hours per week. It is also my opinion that in order to ensure that the WMG comes even close to achieving its mandate, the members on each side are going to have to involve themselves in preparation for and follow up to the actual WMG meeting. And, having established a meeting time, the next question is simply how much added time should be counted as legitimate WMG time. I note that this College has a Faculty of approximately 650 members. There are three semesters with a SWF for each Faculty member for each semester. The WMG has the obligation of reviewing all Workload Assignments in general, reviewing specific disputes under Article 4.02(1)(d) and/or 4.02(1)(f)(i) and reviewing individual Workload Assignments where requested by the Teacher or Union Local. It is the obligation of the WMG to attempt to resolve apparent inequitable Assignments, specific disputes and specific Workload Assignments. It may also have the obligation of making recommendations to the College and Union Local Committees appointed under Article 14 but only where 4.02(7) is in effect. Clearly, the mandate of - 15 - the WMG is extensive. I derived some assistance from a consideration of Article 4.02(3)(b). The number of variables effecting Workload Assignments that the WMG shall have regard to are set out therein and could easily involve each and every member of the WMG in extensive preparation and follow up work. I am, however, quite mindful that Union Local WMG members are also members of the Union Executive. I am quite mindful of the concept of overlap. I am quite mindful of the simple fact that these members are Teachers and can readiy be assumed to have a head start in the variables referred to in Article 4.02(3)(b). But, I believe nonetheless that in order to properly perform their respective functions, any responsible member of the WMG has considerable legitimate non-meeting time. In general, I believe that once the actual meeting time is established, additional time in the form of preparation or follow up should be granted on at least an hour for hour basis. Frankly, I considered utilizing the formula established in Article 4.01(4)(a) for weekly hours for preparation attributed to a teacher. And, I considered utilizing the ratio of 1:1.10 as being appropriate under the circumstances. However, I have arbitrarily opted for the hour for hour basis - 16 - instead. As a result, in general, given three hours of meeting time, one would expect to have 6.0 hours attributed to the Teacher on his/her SWF under Complimentary Functions. That, of course, doesn't end the matter in this case as the SWF before me deals with Ms. Newell. The College has argued that she failed to attend a number of the WMG meetings. It is argued that over the seventeen week period in question she attended only 35.9 hours of actual meetings and that her average per week is only 2.1 hours. The actual meeting time for the period in question is of course 50.4 hours, or 3.0 hours per week. Certainly, if a ratio of 1:1 is applied to Ms. Newell for the fall of 1987, the allowance on the SWF is generous. There is a duty on each WMG member to attend meetings; the obligation is no different than with respect to teaching contact hours. At the same time, I note in reviewing the Minutes of the fall 1987 meetings that members for both sides are absent from time to time. I note that members leave the meetings early from time to time. Such absences must be kept to a minimum if the Group is to function according to its mandate. But, regardless, absences do occur. - 17 - Certainly Ms. Newell's record of activities with respect to preparation for and follow up to the meetings indicates, after subtracting time for meetings in which she was absent, between 99 and 100 total hours. The College has given her a total of 85 weekly attributed hours at 5 hours per week over 17 weeks. I carefully reviewed the time spent by her in preparation and follow up. I accept it as a conservative estimate of necessary time. I caution her with respect to continued absences from WMG meetings. But, I am not prepared to penalize her in this Award. As a result, I find that the time release of 5 weekly attributed hours on her SWF for the WMG from 1 September, 1987 to 3 January, 1988 is insufficient under all of the circumstances. I find that the proper time release is 6.0 weekly attributed hours for the period in question, and I direct the College to amend the SWF accordingly. I may be spoken to for clarification, if necessary. DATED at London, this 22nd day of March, 87. B.A. Fos er Work vad Resolution Arbitrator