HomeMy WebLinkAboutOpatowski 17-02-16IN A MATTER PURSUANT TO THE
Colleges Collective Bargaining Act, 2008
BETWEEN:
Seneca College
(“Employer”)
- and -
Ontario Public Service Employees Union
(“Union”)
(Workload Complaints of K. Opatowski)
ARBITRATOR: Jasbir Parmar
On Behalf of the Employer:
Dan Michaluk, Hicks Morley, LLP
Mary-Lynn Manton, Chair, ICT
Karen Tobin, Director, Employee and Labour Relations
Amy Hsiung, HR Manager
Moshfekah Ferdaus, Employee and Labour Relations Coordinator
On Behalf of the Union:
Chris Donovan, Counsel, Dewart Gleason LLP
Professor Keith Opatowski, Grievor
Professor Jonathan Singer, President, OPSEU, Local 560
This matter was heard on January 31, 2017, with supplementary written submissions completed
on February 10, 2017.
I. INTRODUCTION
1. This decision deals with two workload complaints filed by Professor Keith Opatowski.
Professor Opatowski has been employed with the College for over fifteen years, and teaches in
the School of Information and Communication Technology. His complaints are in respect of the
workload assigned to him on his Standard Workload Form (SWF) in Fall 2016 and in Winter
2017.
2. In both those terms, Professor Opatowski was assigned to teach the exact same course
load: two sections of DCN286 (a Data Communications lecture course), and four sections of
the related lab. Each lecture course involves two teaching contact hours a week, and each
related lab involves two teaching contact hours a week. In fact, he has taught this course for
some fourteen or so years.
3. On his SWF, Professor Opatowski was attributed 6 complementary hours in respect of
this teaching assignment. Pursuant to Article 11.01F1 of the collective agreement, these hours
address “routine out-of-class assistance to individual students” and “normal administrative
tasks”.
4. Professor Opatowski’s issue with the SWFs is two-fold. One, Professor Opatowski is of
the view that given the design/nature of the course and the class size, the complementary hours
do not appropriately reflect the amount of time required for out-of-class assistance and normal
administrative tasks. He seeks one additional hour in respect of routine out-of- class
assistance.
5. Second, Professor Opatowski is of the view that the work involved in meeting the needs
of accommodated students is not appropriately reflected in the attributed complementary hours.
He seeks one additional complementary hour for each accommodated student.
6. Information about this assignment was provided at the hearing by Professor Opatowski
and by Mary Lynn Manton, the Chair of the School in which he teaches.
II. Class Size and Nature of Course
a. Parties’ Submissions – Preliminary Issue
7. The College raised a preliminary objection on the basis of jurisdiction with respect to the
claim for one additional hour per term on the basis of the nature of the course and the size of
the class. The College notes that this claim was never raised before or addressed by the WMG.
The College submits that I therefore do not have jurisdiction to consider this claim.
8. The College accepts that, under the structure of Article 11, there is no requirement for
specificity at the time a professor initially objects to his or her assigned workload. However, the
College submits, that once the workload grievance is considered by the WMG, the dispute
crystallizes. The College submits that a WRA’s jurisdiction is limited to only addressing a matter
that is not resolved by the WMG, and a WRA cannot address a matter that was not considered
by the WMG. The College submits that the structure, of first having a dispute considered by the
WMG and only then, if it isn’t resolved, having it considered by a WRA, is consistent with the
clear purpose of Article 11, which is the expeditious and informal resolution of workload
disputes.
9. The College relied on the following authorities: Fanshawe College of Applied Arts and
Technology v OPSEU, 1990 CanLii8052 (ONSCDC); George Brown College of Applied Arts and
Technology v OPSEU, 2003 CanLii 8931 (ON CA); and York Region District School Board v.
OSSTF, District 16 (2005), 145 L.A.C. (4th) (Knopf).
10. The Union disputes the assertion that the collective agreement contemplates that the
workload dispute is narrowed or crystallized by the WMG. The Union points to Article 11.02C2,
and notes that the WMG is required, in its role, to consider a broad list of specified factors in
reviewing workload assignment. As such, there is no narrowing of the dispute before the
WMG; rather there is a holistic assessment with regard to the lengthy list of factors. The Union
submits that this is the “matter” that, if unresolved, is moved along to the WRA. As such, the
Union submits, a WRA has jurisdiction to consider all those various factors in determining the
complaint before her.
11. As Article 11.02C2 specifically makes reference to the nature of the subject and the
number of students in the class, the Union submits that I have jurisdiction to consider those
factors in determining Professor Opatowski’s workload complaint.
12. The Union relies on Seneca College of Applied Arts & Technology v. OPSEU, Local 560,
2014 CanLii 51390 and Blouin Drywall Contractors Ltd and United Brotherhood of Carpenters
and Joiners of America, Local 2486, 1975 Canlii 707 (ONCA).
b. Decision
13. “Article 11 Workload” contemplates three stages for dealing with disputes about
workload assignments:
i. The teacher identifies to his supervisor that he is “not in agreement” with the
assigned workload (Article 11.02A3), or that there is a “difference” or “complaint”
about the interpretation, application, administration or contravention of Article
11.01, 11.02, or 11.09 (Article 11.02.A6(a));
ii. If no resolution is reached at the first stage, the workload or “complaint” can be
referred to the WMG (see Article 11.02A3 and A4, and Article 11.02A6(a));
iii. If, “following a review by the WMG of an individual workload assignment forward
to the WMG, the matter is not resolved…, the matter may then be referred …to
a WRA” (Article 11.02E1). [Emphasis added]
14. The dispute is about the scope of a WRA’s jurisdiction, particularly in light of what
happened at the WMG.
15. The answer to this dispute must give regard to the parties’ intentions, which are clear
from the express language of the collective agreement.
16. First, the parties intended workload disputes to be resolved expeditiously and informally.
This is evident from the fact they specifically excluded these disputes from the regular grievance
process under Article 32. Also, both the WRG and the WRA are expressly directed to
commence the proceedings before them in a very short time-frame (respectively within one and
two weeks from the date of referral). Furthermore, the WRA is also expressly directed to
conduct proceedings in an informal manner.
17. Second, the parties intended that workload disputes be addressed, before a WRA is
involved, by a joint union/management group which has some experience and expertise in
workload assignments. This is evident from Article 11.02B2, which, by providing for revolving
term appointments, ensures there will always be WMG members with experience in WMG
issues. In addition, in Article 11.02C1 provides the WMG has a number of duties with respect to
workload assignments beyond reviewing individual disputes. For example, the WMG is
responsible for reviewing workload assignments generally and making recommendations to the
College about workload assignments generally.
18. This is not the typical grievance meeting where, given the realities of labour relations, as
referred to in York Region DSB, the meetings are not always held with everyone knowing all the
facts. Rather, in this process the parties specifically ensured that the WMG review would
involve all the facts. Not only is the review conducted by a group with familiarity with workload
assignments, the WMG is explicitly authorized to have access to all relevant data “as it requires”
and has the authority to require the presence of the teacher and/or the supervisor (Article
11.02D2)
19. There must also be consideration of exactly what happens at the WMG in respect of
individual workload assignment disputes. For ease of reference I set out the portion of Article
11.02C1 which refers to the functions of the WMG in respect of individual workload
assignments:
Article 11.02C1 The functions of the WMG shall include:
i) …;
ii) Reviewing specific disputes pursuant to 11.02A4 and/or 11.02A6(a) and where
possible resolving such disputes;
iii) ….
iv) Reviewing individual workload assignments where requested by the teacher or the
Union Local and, where possible, resolving the disputes;
v) …
20. Thus the WMG has the role of reviewing the “specific disputes” and the “individual
workload assignments”, AND the role of, where possible, “resolving the disputes”.
21. Then, Article 11.02E1 provides if, following the review of the individual workload
assignment “the matter is not resolved”, the matter” may be referred to a WRA.
22. What is the scope of “the matter” which is then before the WRA? Since the WMG is to
attempt to “resolve” the “specific dispute” under Article11.02A4 and A6, or the disagreement
about an individual workload assignment, it is that which would be “unresolved”. Thus, when all
these provisions are read together, it is evident that the parties intended that the WRA’s role
would be about the matter that was attempted to be resolved but remain unresolved.
23. I appreciate that Article 11.02C provides that the WMG is to have regard to a number of
variables. However, that does not detract from the fact that the WMG’s consideration is still
intended to be directed at resolving “the dispute”, and when it is not resolved, it is only that
which is “the matter” that is ultimately forwarded to the WRA.
24. Accordingly, I find that under this collective agreement, the “matter “must be first be
addressed by the WMG and not resolved, before a WRA has jurisdiction to address it.
25. What exactly that means in a particular case will vary. Implementation of these
provisions must give regard to the informality of the WMG/WRA process and the desire to
ensure the real dispute is dealt with. I need not say much else at this point, because the
circumstances of this particular case are not nuanced such that they require a closer
examination to ensure technicalities don’t get in the way of addressing real disputes.
26. In this case, the only dispute before the WMG was the issue of whether there was
appropriate recognition of the work involved with special needs students. I have not been
informed that anything was raised about class size or the nature of the course, or that anything
was raised indicating there were factors apart from the special needs students which the SWF
was not appropriately addressing. Now, at the WRA stage, Professor Opatowski seeks
additional attributed hours on his SWF, independent of and in fact in addition to his claim for
additional hours in relation to special needs students. This is not a situation of a claim being
characterized differently or an additional argument being made in support of an original claim.
This is a completely new claim, based on completely separate circumstances (class size and
nature of the course). The WMG never considered this claim because it was never raised.
27. In my view, to allow this claim to proceed is inconsistent with the terms of the collective
agreement which is the basis of my jurisdiction. It is also inconsistent with the intentions of the
parties, which is to resolve disputes expeditiously and preferably through a bilateral
union/management process. The WRA is to become involved only when that process fails, not
in place of it. Allowing individuals to make wholly new claims before the WRA, when they had
full opportunity to make those claims before the WMG, does not encourage expeditious
resolution. Rather, it permits disputes to become broader and broader. It would also have the
WRA adjudicating disputes completely outside of the parties’ intended process.
28. For all these reasons, I find I have no jurisdiction to address Professor Opatowski’s claim
for additional attributed hours in respect of class size. The College’s objection is upheld.
III. STUDENTS WITH ACCOMMODATIONS
29. Professor Opatowski seeks additional attributed hours on his SWF flowing from the
accommodated students in his classroom. In Fall 2016, he had five students in his classes who
had letters of accommodation. In Winter 2016, he has six such students.
30. Professor Opatowski provided an estimate of the amount of time he may have to spend
to ensure appropriate accommodation. He seeks one additional hour for complementary
functions on his SWF for each accommodated student.
31. It is noted that the College made some policy changes with respect to accommodation
requests in the Summer of 2016. Professor Opatowski is of the view that this has increased the
number of students accessing accommodation. He points to the fact that in previous years he
had about four accommodated students over a three semester period. Now he has five or six
students in one semester alone.
32. The Union submits that the work involved to ensure appropriate accommodation does
not fall within “routine” or “normal” work as contemplated by Article 11.01F2. But it is work he
must do, since it is the College’s legal obligation to provide the accommodation.
33. I begin by noting that this dispute must be determined with regard to Article 11 of the
collective agreement. In this provision in the collective agreement, the parties addressed how
workload would be determined. This was an impressive undertaking, noting that the members
of this bargaining unit teach in a variety of disciplines and are involved in a variety of related
activities, both directly and indirectly related to teaching. Nonetheless, aware of this breadth, in
Article 11, the parties agreed on a method of determining workload that applies across the
bargaining unit, which means across all faculties and various colleges in the province. In doing
so, they have essentially created a formula, which gives regard to the many factors that affect
the realities of a teaching assignment.
34. In Article 11.01G2, in recognition of the fact there may be assignments that don’t fit
within that contemplated formula, the parties have also agreed that where there are “atypical
circumstances affecting the workload of a teacher...which are not adequately reflect in this
Article 11”, additional hours shall be attributed.
35. I turn now to the issue of accommodated students. The requirement that professors
address the needs of accommodated students has existed for years. It can reasonably be
concluded that this reality, faced by teachers across disciplines and across the province, was in
the knowledge of the parties when they negotiated the workload formula set out in Article 11.
As such, I am of the view that Article 11, and the formula set out therein, does contemplate the
work involved in providing accommodation.
36. However, I also accept, as a general proposition, that the specific circumstances of a
particular accommodation, or a particular workload involving accommodation, may constitute
“atypical” circumstances that warrant additional attributed hours. Accommodation needs cover
a spectrum, some which involve fairly minor tasks while others could involve significant work.
37. For example, Professor Opatowski referenced the fact that last semester the
accommodation needs of one particular student (who did not end up taking his course after all)
would effectively have meant one-to-one teaching for the entire course for that student. A
situation such as that, if it actually occurred, is one that might need to be addressed in workload
assignment. Just as with any other component of a workload, if the specific facts of a particular
assignment are not properly reflected in Article 11, additional hours may be warranted.
38. However, the decision in this case must be based on the specific needs of the specific
accommodated students who actually take Professor Opatowski’s classes. I have reviewed the
list of tasks he identified that he actually performs to meet those needs. Some of the tasks
identified, such as providing additional clarification to students or discussing any issue they
might have with respect to the course, seem no different than work he would do in providing out-
of-class assistance to any other student who may have questions or concerns. There has been
no information provided to me upon which I could conclude that these discussions with the
accommodated students are qualitatively different and warrant distinct recognition.
39. Furthermore, I am of the view that almost all of the identified tasks fall at the lower end
of the spectrum in terms of the quantity of work involved. I observe some caution must be used
when considering a particular teacher’s estimation of work involved in a specific task. This is
because Article 11 is not intended to reflect the amount of time a specific teacher actually
spends performing his or her teaching assignment. A teacher is free, in this relatively
independent academic setting, to choose their own work methods and style. However, the
parties have agreed that work assignment and compensation will based, not on those, but
rather a broader assessment.
40. Most tasks involve, even according to Professor Opatowski’s own estimations, just a few
minutes or are only done periodically (once a term or only at the time of an evaluation). The
one exception is reviewing of notes taken by a computerized note-taking service. However,
even this task needs only to be completed for the first three classes. Viewed in the context of
workload over the entire term, which is how the SWF is organized, I do not find that to be an
indication of significant additional work over the course of the term.
41. As acknowledged by Professor Opatowski, his claim for additional hours is really based
not on the specific tasks but rather on the number of the accommodated students in his classes.
The argument is that the volume of students has increased, and so the amount of work, once
multiplied, is now significant and warrants recognition on the SWF.
42. There is no doubt that raindrops can create a huge river. Tasks which may not involve a
lot of work can be onerous if they have to be completed in large volumes. The question is
whether the volume of students in Professor Opatowski’s class is at that level.
43. As the individual bringing the complaint that his SWF does not adequately reflect his
workload, there is an onus on Professor Opatowski to establish, on a prima facie basis, that the
amount of accommodated students in his assignment is atypical. I am not convinced he has
met that onus.
44. In Fall 2016, Professor Opatowski had 5 accommodated students out of 107 students,
and in Winter 2017, he has 6 out of 128 students. These numbers do not, on their face, strike
me as notably high. I have not been provided any evidence upon which I could conclude that is
the case.
45. The Union suggested that changes in College policy with respect to accommodation,
which went into effect in August 2016, caused an increase in the number of students receiving
accommodation. The implication, I presume, is that the current situation does not reflect the
volume of accommodated students contemplated when the parties negotiated Article 11.
46. However the only evidence I have in this respect is the memo from Seneca Counselling
and Accessibility Services, which speaks to changes in policy. It is not evident from the face of
this memo that there would have been an increase in accommodated students flowing from this
change. The memo speaks to changes in the process of accommodation for students who have
been determined to be eligible for accommodation (e.g. how accommodation letters will be
distributed; how faculty should provide tests to the testing centre). It does not speak to the
process by which it is determined whether or not students are eligible for accommodation, which
is what would impact the number of accommodated students.
47. I accept the number of accommodated students in Professor Opatowski’s classes has
increased over these two terms when compared to his past experience. However, that only
indicates this volume of students is not typical for him. Article 11.01G2 is not about individual
teachers. It is about addressing a workload in comparison to the workload that is typically
reflected in Article 11.
48. It is interesting to note the accommodation example referenced in the memo to faculty
from Accessibility Services. The example addresses the situation of a professor who has 30
students in a course, with five of those requiring accommodation. Examples usually capture the
types of situations that are likely to arise. This example suggests that, in the view of the
department who manages accommodation, it would not be unusual that a class of 30 students
may have 5 accommodated students in it. This memo does not support Professor Optaowski’s
assertion that 6 accommodated students in a class of 128 students is unusually high or atypical.
49. I have not been provided any information upon which I could conclude Professor
Opatowski’s situation is atypical and justifies additional attributed hours.
IV. DISPOSITION
50. Accordingly, I dismiss Professor Opatowski’s claims.
Dated this 16th day of February, 2017.
___________________
JASBIR PARMAR