Loading...
HomeMy WebLinkAboutUnion 06-12-18 IN THE MATTER OF AN ARBITRATION BET WEE N: ONT ARlO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF NIAGARA COLLEGE (Hereinafter called the "College") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") GRIEVANCE OF UNION OPSEU File No. 2004-0242-0002 (hereinafter the "Grievance") BOARD OF ARBITRATION: Richard H. McLaren Chairman SherriI Murray Union Nominee Jacqueline Campbell College Nominee COUNSEL FOR COLLEGE: Brenda Bowlby, Esq. COUNSEL FOR THE UNION: Gavin J. Leeb, Esq. HEARING'S in RELATION to THIS MATTER WERE HELD at NIAGARA FALLS ONTARIO, on DECMBER 16,2004; APRIL 19 and MAY 12,2006; and at ST. CATHARINES, ONT ARlO on SEPTEMBER 25 and OCTOBER 5, 2006. EXECUTIVE SESSIONS of the BOARD by CONFERENCE CALL WERE HELD 20 NOVEMBER and 16 DECEMBER 2006. AWARD The Board issued a unanimous Preliminary Award dated II March 2005 in which it found against the College on its preliminary objection as to the arbitrability of a Union policy grievance. That Preliminary Award should be read as part of this final award and is incorporated herein. The facts which had been orally articulated and agreed to at the first day of hearings in order to enable counsel to make the arguments for the preliminary objection are now in evidence before the Board. This A ward should be taken as establishing the facts in this matter and not the ones assumed to be the facts and set out in the Preliminary Award. The details of the grievance and the relief requested are found in the Preliminary Award and are not repeated here. The Foundation Studies program at the College involves two departments: English and Math & Computcr Science. In the Spring semester of2002 the College introduced a pilot project in Foundation Studies for students who in the Fall semester had achieved a failing grade of between 40 and 49% in certain core or required courses. In the absence of any special arrangements, such a student would have to repeat the course which could possibly involve their not graduating in June of the academic year in which they had obtained the failing grade. In order to provide some assistance to such a student a pilot project was introduced. A student who had failed a course in the Fall semester with a grade of 40% or above would be allowed to take a 5 week course in the Spring semester described by Acting Y.P. Academic Sharpe as afast track independent study program. The essence of that program was to enable a student who had failed a course to take a make up of that failure by taking a course of 5 weeks duration in the Spring term which if passed would enable graduation in June. The independent study of the failed course would involve the student in taking a customized course to make up their deficiencies whatever they might be. The work by the student might involve writing a paper, a report or other assignment that was missed; studying a particular segmcnt of the course; or, on rare occasions re-taking the entire course. Thus, the program to be undertaken by way of independent study would be customized by the student's professor to meet the student's needs as they had been demonstrated in the failed course. What was intended was a method by which a teacher could work one on one with the student to offer as much flexihility as possible to enable the student to obtain the credit they needed. The original SWF assigned for these activities was one teaching contact hour, sometimes referred to as "above the line"; and, 7 complementary function hours; sometimes referred to as "below the line". Professor Kim Streker was one of 17 professors who participated in the pilot project. She received initially the foregoing allocation. She objected and took that allocation up 2 with her Academic Managcr. The matter went to the work Load Monitoring Group where it was resolved by the professor agreeing to a revised SWF showing 3 teaching contact hours above the line and no complementary function hours, see Exhibit #6. In support of its position, it was argued by the Union that the issue is how certain work is SWFed by the College purportedly in exercise of its management rights. It was submitted that the College managed its management rights improperly by unilaterally adopting a different model for work performed by professors that was contrary to Article 11 and not contemplated by the Article. It was submitted that the teaching content of the pilot project must be placed on the SWF above the line; otherwise teaching hours are being robbed by saying that it was not scheduled by the College or a variety of other explanations such as the time was not placed in 50 minute blocks, etc. The Union in essence claims the activities are teaching and should all be recorded above the line and the College claims it is work different than teaching and mostly should be recorded below the line. Extensive case law was cited to the Board in this matter. However, in light of the decision taken by the Board it is unnecessary to refer to that case law and thus to 1 ist the cases argued herein. In support of its position, it was urged by the College that the Board go back and revisit our ruling on Art. )2.10. That provision limits a union grievance to actual patent violations of the Collective Agreement. They cannot grieve an interpretation issue of the Collective Agreement where an employee may grieve the mater. It is submitted that there is no evidence of a patent violation of the Collective Agreement and that the Board was misled in the preliminary argument. The College always struggled to try and determine what the grievance was about. There being no violation of the Collective Agreement the grievance ought to be dismissed. Extensive case law was cited to the Board in this matter in reply by the College. However, in light of the decision taken by the Board it is unnecessary to refer to that case law and thus to list the cases argued herein DECISION At the core of this dispute is what is teaching? At the outset of this arbitration the Union was of the view that what was being done in the fast track independent study pilot program was teaching. The College was of the view that the usual preparation and evaluation did not occur and it was not teaching primarily so that the bulk of the time could be recorded below the line. By the time the Board of Arbitration issued its Preliminary Award and then held four more days of hearings in the case the issue had mutated. At the time of the argument neither party asserts that the fast track independent study pilot project is not teaching. What remains in dispute is how that teaching is to be credited within the provisions of Article 11. 3 In the Board's Preliminary Award at p. 9 we indicated that: There is also a threshold characterization in this matter between teaching versus non teaching contact hours. That is a matter which is a broadly based issue of inteflJretation between the parties rather than an individual matter of the quantum of hours in either category. The quantum issue is squarely within the purvie.v of an individual grievance under Article 11. The threshold characterization issue at first blush looks to be a Union issue although it has elements whirh suhsume the individual grievance capability of the Collective Agreement. The Collective Agreement does not engage in this threshold characterization but instead has the two criteria which this Board has labeled Ii] and [ii} ({the dispute involves an unreasonable standard. By the conclusion of the hearings in this matter both parties held a common view that what was involved in the activities being grieved was indeed teaching. The dispute was whether any of the activity ought to be recorded below the line. In this respect the dispute had mutated from the issues two years earlier when this matter commenced at a hearing on 16 December 2004. The pilot project was teaching. This Board makes a finding and declaration to this effect. Having arrived at that conclusion it is then a matter of how the teaching is to be allocated on the SWF in accordance with Article 11 of the Collective Agreement. The evidence before us does not reveal how the teaching work is to be credited under Article 11. We arc accordingly unable to engage in any analysis of the facts to determine the allocation. In that regard we are not able to determine if there has been a patent violation of the Collective Agreement. For all the foregoing reasons we declare that the work involved is teaching under the Collective Agreement. Beyond this declaration there is no evidence to assess the further merits and apply the Collective Agreement and we decline to do so. Therefore, the grievance is ordered dismissed. DATED at LONDON, ONTARIO this 18th DAY of DECEMBER, 2006. I concur / dissent "Signed" Jacqueline Campbell, College Nominee I concur / dissent "Signed" Sherril Murray, Union Nominee 4