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HomeMy WebLinkAboutDube 16-03-22IN THE MATTER OF A WORKLOAD RESOLUTION ARBITRATION BETWEEN CONFEDERATION COLLEGE (Herein after referred to as "the College") AND THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 732 (Hereinafter referred to as "the Union") ARBITRATOR: APPEARANCES: FOR MR. DUBE: FOR THE COLLEGE: COMPLAINT OF BERT DUBE Tanja Wacyk Bert Dube, Chief Steward; Peter Kuzyk, Local President; Rebecca Ward, Local Vice President and Workload Monitoring Group Member; Michael ScarcelIo, 2a1 Vice President and Shop Steward Wallace Kenny, Counsel; Jeannine Verdenik, Director of Human Resources; Joe Cordeiro, Executive Dean; Riley Burton, Chair, School of Engineering Technology LOCATION OF HEARING: Thunder Bay DECISION 1. This decision deals with the workload complaint of Mr. Bert Dube, brought pursuant to Article 11 of the Collective Agreement, Mi. Dube takes issue with receiving no credit on his Fa112015 SWF (September 10 - December 16, 2015) for the marking of twelve "Prior Learning Assessment and Recognition" exams ("PLARs"). These were referred to interchangeably as "Challenge Tests" and "Exemption Tests". The marking of the PLARs was assigned to him as part of his teaching responsibilities for the Microsoft Office Applications Course —MC 155 ("MC 155"). The course is taught in the School of Engineering Technology. 2. The PLAR is referred to in the MC 155 Course Description as follows: PRIOR LEARNING ASSESSMENT: This course is available for challenge or assessment through Prior Learning Assessment and Recognition (PLAR). Please contact the Program Coordinator for more information or look for PLAR on the College website at http://Nvww.confederationc.on.ca/plar/ 3. The PLAR was athree-hour test administered early in the course to students wishing to demonstrate their competency regarding the course material. Students who received a mark of at least 75%, could elect to have that as their Final mark in the course, or to continue with the course in an attempt to achieve a higher mark. EVIDENCE: 4.. The Parties submitted a joint set of documents. 5. Mr. Dube was the only witness. His evidence is set out below. 6. This was the first time Mr. Dube had taught the NIC 155 Course. In response to his efforts to acquire material and information regarding the course materials, he was advised via e-mail dated June 17, 2015, by Shelley Gibson, the Faculty Contact for the course as follows: Folks in McIntyre have been delivering it a while now so I hope you aware [sic] of the Challenge Test offered in the first few weeks. Not sure who the lead is on that for McIntyre sections, used to be Diane Kauzlarik. Our sessional Bill McKirdy usually runs them here in the Shuniah. T. In response to Ms. Gibson's e-mail, Mr. Dube spoke to both Mr. Rob Coates, the Faculty member who previously taught the course, and was advised he had never been involved in marking the PLARs, or been assigned any work in that regard on his SWFs. This was reflected in Mr. Coates' Fall 2013 SWF, filed as an exhibit. As a result, Mr. Dube maintained he did not understand marking the PLARs was part of his Course responsibilities. S. Accordingly, Mr. Dube was surprised when advised, with no prior notice, lie was required to mark the PLARs. Specifically, on September 23, 2015, Mr. Dube was one of five Faculty members asked by Janet Kostanio, another Faculty member in the School of Engineering Technology, and the Coordinator of the Math Department, to assist in marking the approximately 90 PLARs written by students in the MC 155 Course. In her e-mail correspondence, Ms. Kostamo indicated the tests were placed in the mail box of the individual student's instructor, along with a blank copy of the test; an answer key for the written portion; and, a marking scheme for the practical part of the test. 9. Mr. Dube received the twelve PLARs he was to mark on September, 24, 2016. He testified lie felt overwhelmed when advised lie must complete the marking within a week, as he felt the time commitment would be in the order of 20 hours. 10. Mr. Dube then met with his supervisor, Riley Burton, Chair, School of Engineering Technology, to express his concerns. Mr. Riley responded via e-mail on October 1, 2015. Mr. Riley advised he had investigated the demands of marking the challenge tests with the other instructors, as Mr. Dube lead indicated lie would be spending two hours to mark each test. Mr. Riley indicated all the other instructors had more exams to mark than Mr. Dube, and not one of them spent even Half of the time spent by Mr. Dube marking each test. 11. This was consistent with e-mail correspondence from Ms. Gibson in response to an inquiry from Jeannine Verdenik, Director, Human Resources and Organizational Development, regarding how long it generally takes to mark a challenge exam in MC 155. Ms. Gibson indicates: ,lust spoke to Bill [McKirdy] and we agree it's about 20 min. per exam. 12. Mr. Burton further indicated in his October 1, 2015 e-mail that none of the other instructors felt the workload was unreasonable, and that they recognized they would not have the students in their class once they successfully passed the test, resulting in a decreased workload for the semester. Mr. Burton conclude that as a result of the above, he would take no further action. 13. Mr. Dube testified that because the PLARs were delivered with no prior notice, he had no opportunity to prepare for them. Rather, he was still working toward a new course prep and had not yet developed expertise in the area. Accordingly, although the PLARs arrived with answer keys, he 3 felt lie needed to create his own marking key for each of the test modules as he was not familiar with some of the attributes for each module. 14. In addition to marking the PLARs and creating his own marking key, Mr. Dube created a PDF for each student indicating how they did in each portion of the exam. He conceded he was not required to do so, but submitted this precluded all the students coining to his office for that purpose, and was more efficient. He indicated that as a result, only one student came to his office to review their result. Mr. Dube also pointed out this is a "best practice" in terms of the teacher training course he took. 15. Mr. Dube's log indicated he spent 19.75 hours performing the PLARs-related work. 16. Regarding Ms. Gibson's e-mail from, referred to above and stating "we agree that [marking the challenge exam] is about 20 minutes, Mr. Dube pointed out Ms. Gibson has not taught this course for about 3 years, and it was not clear whether she was speaking for herself or someone else. 17. In any event, Mr. Dube submitted 20 minutes was a gross underestimation. He maintained the only way the other instructors could have marked each test in 20 minutes is if they did not "drill down" into the documents, and simply looked at the pictures to ensure they looked the same as on the key — which he referred to as "marking by PDF" 18. For example, by drilling down into the submitted documents, Mr. Dube determined that in sonic instances students had simply used spaces rather than the required formula when creating an excel table. Similarly, sonic had used "colours" for highlighting, rather than the "conditional formatting" required to meet the test objectives. 19. Mr. Dube also submitted the part-time Faculty would not admit to spending more than 20 minutes to mark the PLARS as they are afraid for their jobs. However, there was no evidence regarding how many of the Faculty involved were part-time or any other evidence in that regard. 20. Mr. Dube further testified lie attempted to find one of the other teachers to determine their approach in marking the tests, as suggested by Mr. Burton in their meeting. However, despite several attempts, lie was unable to find anyone who could assist him in that regard. As a result, he determined it would be a better investment of the short time he had to simply get the work done. 21. Mr. Dube referred to a Local Agreement previously in place regarding the marking of PLARs. The Local Agreement expired in 2014, and was not renewed at the last round of bargaining. 22. In the first instance, the Local Agreement set out the parameters of PLAR assignments that had been voluntarily agreed to by Faculty on an ad hoc basis. 23. Most significantly, the Local Agreement also provided the marking of PLARs may be assigned as part of a regular workload of a Faculty member, when a Program Coordinator is not able to conduct them. It indicated that "[i]n such instances the provisions of the Collective Agreement and Local Agreement shall apply, including but not limited to, notice periods and inclusion of assigned work on SWFs". More in that regard will be said below. 24. As a result of the PLARs results, five students elected not to carry on with the Course. Mr. Dube conceded this relieved him of marking what he agreed were "quite a few" assigned projects, and the three tests for those five students. 25. Finally, Mr. Dube pointed out Ms. Kostamo's Fall 2015 SWF contained attributed time for PLAR testing. Specifically, Ms. Kostamo was teaching MA 133 and MA 531, she was attributed 0.50 weekly hours on her SWF for "PLAAR [sic] — Prior Learning Assessment". Mr. Dube testified he asked Ms. Kostamo if she was involved in the MC 155 PLARs or or whether it was Ms. Kaslarick. Ms. Kostamo indicated she was not, but thought it was Ms. Kaslarick. Mr. Dube testified this was subsequently confirmed by Ms. Kaslarick. ARGUMENT: Mr. Dube 26. As I understood his initial argument, Mr. Dube submitted that as PLARs are not defined or addressed in the Collective Agreement, the applicable provision remained Article 11.0 1 E, which attributes hours for evaluation and feedback. 27. However, Mr. Dube subsequently pointed out the PLAR was not part of the assigned Course work, and taking the test was optional. As a result, lie argued it falls outside of the formula for establishing the evaluation and feedback factor, which considers the normal stream of students, and only tile types of evaluations included in the Course Outline, 28. Accordingly, Mr. Dube argued, apparently in the alternative, that the work related to the PLARs be compensated as "atypical circumstances" pursuant to Article 11.01 G 2. That Article allows for a deviation from the formulas negotiated by the parties if there are atypical circumstances affecting the workload of a teacher. 29. Mr. Dube also argued he was particularly disadvantaged vis -A -vis other Faculty, given that when he received his S WF in June 15, 2015, he was unaware he was expected to deal with the PLAR exams. I understood this to suggest this was not necessarily the case with the other Faculty, although no evidence was led on that point. 30. Mr. Dube submitted that as marking the PLARs was an atypical circumstance, it warranted the Local Agreement which had been in place for many years setting out the marking process He submitted the process set out in the Local Agreement was clear and fair, as it not only made the marking voluntary, but also provided for sufficient notice and that the additional work be noted on the marking teachers' SWFs. 31. Mr. Dube maintained the College was estopped from resiling from the Local Agreement as it was consistent with past practice, and maintained marking of the PLARs ought to remain voluntary. 32. Mr. Dube submitted that although the College suggests lie received a windfall benefit resulting from the five students electing not to continue with the Course, he pointed out Article 11.01 E 4 allows the College to review the number of students in a course, and revise the SWF accordingly, "where appropriate". 33. Finally, Mr. Dube maintained the requirement he mark the PLARs was in violation of the following articles of the Collective Agreement: Article 11.02 A 1(a) - This article requires SWFs be given to teachers no later than six weeks prior to the period at issue. Mr. Dube maintained this was in order to allow a six-week period of course preparation time. Article 11.01 B 1 - This article provides that a teacher's assigned and attributed workload is not to exceed 44 hours in any one week. Mr. Dube argued this provision ought to be read to preclude exceeding the 44 hour limit in any single week, which lie maintains occurred because of the approximately 20 additional hours lie spent marking the PLARs. Article 1 1.01 J I - This article provides that a teacher's overtime is limited to three total workload hours in any one week and shall be voluntary. 34. As a remedy, Mr. Dube asked that his SWF be reopened for the period of Sept 24 -- Sept 30, 2015, in order to credit him with the additional time it took to mark the PLARs during that week. 35. However, Mr. Dube also subsequently submitted, again apparently in the alternative, that the most appropriate manner of capturing the PLARS on his SWF was as a complementary function pursuant either to Article 11.01 F1 i.e. a complementary function appropriate to the professional role of the teacher. College 36. The College maintained the PLAR was included in the overall course responsibilities, as demonstrated by its inclusion in the Course outline. The College submitted this was simply one way in which the Course could be completed. The College pointed out there was no dispute students had to be registered for MC 155 in order to take the PLAR. Accordingly, the College maintained the course preparation and marking formulas negotiated between the parties include the obligation to prepare for and mark the PLAR. 37. The College submitted that while the workload formulas are not perfect, they are Intended to apply to all the colleges. 38. In keeping with the formula for attributing preparation time, the College pointed out Mr. Dube had already been given more attributed prep time, on the basis MC 155 was a new prep for him. 39. Further, the College pointed out the negotiated attributed factor for Evaluation and Feedback, is not based on the time it actually takes, as suggested by Mr. Dube. Nor is the number of assignments an additional component. Rather, the formula attributes time on the basis of two factors, the number of students in the course, and the type of evaluation. 40. Accordingly, the College submitted that as neither the requirement to mark one additional exam, nor the amount of time required were elements selected by the parties for inclusion in the formula, that ends the matter 41. The College denied Mr. Dube's circumstance was atypical as referenced in Article 11.01 G 2. It points out Mr. Dube was not the only one teaching the Course and marking the PLAR exams, so there was no basis on which to find Mr. Dube's circumstance was atypical. 42. The College also submitted that on an equity basis, Mr. Dube was not disadvantaged. It pointed out that none of the five students who elected to take their PLAR mark as their final grade were eliminated from the class roster, resulting in less students than for which Mr. Dube had been given and retained credit. At the same time, he was relieved of having to mark any additional assignments for those five students, eliminating the marking of what the College characterized as approximately about 115 assignments and tests. 43. The College further argued Mr. Dube's request that his SWI~' be reopened for one week is inconsistent with the manner in which the way the attribution formula works. Specifically, Articles 11.01 D I and 11.0 1 E I refer to "weekly hours" being attributed for preparation, evaluation and feedback. This reflects the parties' agreement to average the work over the time covered in the SWF. The College argued the formula does not contemplate differentiating between weeks, as there may be more work in one week, such as the week in issue in this instance, but there will also be weeks where there is no evaluation and feedback. 44. Accordingly, the College argued Mr. Dube's assignment did not change, and there was no need to amend or reissue his SWF. 45. In support of the College's argument the workload formula is not intended to capture actual time spent on either course preparation or evaluation and feedback, but rather reflects the negotiated average as reflected in Articles 11.01 D 1 and 11.01 E 1, the College relied on my decisions in Confederation College (October 28, 2015) and Sault College (September 24, 2014). ANALYSIS; 46. In the first instance, I do not find the College having resiled from the Local Agreement governing the marking of PLARs to operate as an "estoppel". 47. Distilled to its essence, estoppel operates to prevent the unfairness that can result when one party represents to the other party that it will either not enforce a right or obligation under the contract between them, or that it will apply the contract in a particular way, and subsequently does otherwise, after the other party has acted in reliance on the representation to its detriment, and the situation cannot be restored. Isee Toromont IndusnIes .Ltd. and ..A.M.A. W., Thunder Bay .Lodge 1120 (2009), 192 L.A.C. (4th) I (Surdykowski)]. 48. In this instance, the College advised the Union at the last set of contract negotiations that it was not prepared to continue the Local Agreement as written, and it expired without being renewed. This put the Union on notice that unless a new agreement was reached, the College would rely on the language of the Collective Agreement. As the parties were unable to negotiate a new local agreement, the rights of the parties reverted back to terms of the governing Collective Agreement. 49. Accordingly, the College can no longer held to the terms of the prior Local Agreement. 50. The issue then becomes, whether marking PLARs is part of the regular course workload. 51. I am persuaded it is not. As argued by Mr. Dube, the PLAR is not part of the assigned Course work, and not all students elect to take it. Accordingly, I find it falls outside the formula for attributing evaluation and feedback tune, which focuses on the number of students enrolled in the Course as well as the assignments and examinations set out in the Course Outline. 52. This appears to have been acknowledged in the language of the expired Local Agreement which is set out again below for ease of reference: 2. When PLAR cannot be conducted by the Program Coordinator, PLAR assessments may be assigned by the Dean as part of the regular workload of a faculty member. In such instances the provisions of the Collective Agreement and Local Agreement shall apply including but not limited to, notice periods and inclusion of assigned work on SWFs. [emphasis added] 53. As the Local Agreement made no mention of notice periods and inclusion of the work on SWFs, I can only conclude the highlighted reference is to the requirements of the Collective Agreement, which govern once the Local Agreement was not renewed. Specifically, Article 11.02 A 2 provides that a SWF shall include all details of the total workload; and, Article 11.02 A 1(a) provides that teachers be given a copy of their SWF no later than six weeks prior to the beginning of the period covered. 54. Accordingly, the above highlighted portion appears to acknowledge that when the marking of PLARs is assigned as part of the regular workload of a Faculty member, as occurred in this instance, it ought to be included on that teacher's SWF — pursuant to the Collective Agreement. 55. This is consistent with Ms. Kostamo having received credit for marking the PLARs on her SWF. As indicated above, Ms. Kostanio's SWF shows she was teaching MA 133 and MA 531, and was attributed 0.50 weekly hours for "PLAAR [sic] — Prior Learning Assessment" as a complementary function. Although Ms. Kostamo also played some role in coordinating the distribution of the MC 155 PLARs, this does not explaui the attribution of time for PLARs, as she was also attributed six hours weekly for "Coordinatorship". It is not apparent, therefore, why her situation was different from that of Mr. Dube. 56. Accordingly, while related to the MC 115 Course, 1 find marking of the PLARs is a distinct workload component which is not a factor in the workload formulas set out in Article 11.0 1 E 1, which focuses on the number of students and the Course material. 57. As a result, lair. Dube's assignment to mark the PLARs out to have been included in his assigned work on his SWF. 58. 1 should note that while it does appear Mr. Dube received something of a windfall as a result of five students withdrawing from the Course following their having achieved the requisite PLARs mark, that is a separate issue. As pointed out by Mr. Dube, the College has a remedy available to it in Article 11.01 E 4 if it has an issue in that regard. REMEDY: 59. In the first instance I find the appropriate remedy is to attribute to Mr. Dube's SWF the same .50 weekly hours for complementary functions as were attributed to Nis. Kostamo for her PLARs-related work. 60. Attributing time on Mr. Dube's SWF at the outset would have put him on notice he would be responsible for the PLARs marking, and allowed him to spread his preparatory work over the regular preparatory period, including up to the week of September 21, 2015. That is the week in which he first received notice he was to mark the PLARs. However, the lack of notice resulted in the preparatory work, as well as the actual PLARs marking and other related duties being compressed into the one-Nvicek period. 61. The question then becomes, how is that aspect of Mr. Dube's complaint to be compensated. 62. As argued by the College and as I indicated in my decisions in Confederation College and Sault 10 College (supra), variations in time and effort spent by Faculty are not intended to be captured in the workload formulas. Specifically, as I indicated in paragraphs 67 — 70 in my decision on Sault College, and referenced in my decision in Confederation College: 67. While I appreciate that some of the Teachers spent more time that others, or more time than is captured by the attributed preparation and evaluations factors for their course, that has long been recognized as the reality of addressing workload using generic measures. 68. For example, Arbitrator O'Neil, in her decision in Algonquin College, January 29, 2003, dealt with the request of a teacher seeking more preparation time, as there had been were [sic] some scheduling conflicts and confusion which resulted in her preparing for a course she ultimately did not teach, and which created additional stress for her. In addition, the teacher sought more preparation time on her SWF, in order to provide "the best" to her students, and on the basis her preparation time constituted "atypical circumstances" pursuant to Article 11.01 G 2. 69. That is similar to the circumstances in this instance, where the Teachers understandably wished to meet students' expectations, and provide more than the minimum requirements mandated by the College regarding utilizing the D2L program. 70. However, in denying the teacher's request, Arbitrator O'Neil noted in her decision in Algonquin College, on page 1: The problem, however, is the structure of the workload formula. It is designed as a rough average over the whole spectrum of over twenty colleges, the dozens of programs that each of them provides and the countless variations in experience and preparedness of thousands of professors. It was simply not designed to calibrate the time needed for each individual professor to be prepared at the ideal level. ... 63. Accordingly, while Mr. Dube argued he spent 19.75 hours on PLARs related work, it would be inappropriate to use that as the measure of his compensation. Nor is it appropriate to use the College's estimate of approximately 20 minutes per PLAR. Not only was the latter hearsay, with the source unknown, but it too speaks only to the time one/sortie Faculty may have spent. 64. I am fully aware the SWF is intended to capture only work assigned during the teaching weeks. However, in these narrow circumstances, I find it is appropriate Mr. Dube be compensated in some measure for the pa-cparation time he lost leading up to the teaching period, and had to spend within the one week he was required to complete the PLARs work. 65. Accordingly, I find the appropriate compensation is .50 hours per the number of weeks Mr. Dube would have been able to utilize for preparation in the period leading up to and including the week of September 21, 2015, had the PLARs marking been put on his SWF. This time is to be added to his regular attributed hours for the period of September 24 -30, 2015, when the work was actually performed, and he is to be compensated on that basis. As this period of time straddles two teaching weeks, for the sake of simplicity, the hours are to be evenly divided over the two weeks. 11 DETERMINATION: 66. For all the reasons set out above, Mr. Dube's complaint is allowed. 67. 1 remain seized regarding any aspect of implementing this Decision. DATED AT TORONTO, THIS 22ND DAY OF MARCH 2016. "Tanja Wacyk" Workload Resolution Arbitrator 12