HomeMy WebLinkAboutShaffer 18-06-071
IN THE MATTER OF A
WORKLOAD GRIEVANCE
BETWEEN:
OPSEU LOCAL 653
-and-
NORTHERN COLLEGE
Regarding the Workload Complaint of
Professor Warren Schaffer
BEFORE: Kathleen G. O’Neil, Workload Resolution Arbitrator
For the Union: Warren Schaffer, Grievor
Lad Shaba, President , Local 653
David Silver, First Vice-President, Local 653
Suzanne Tremblay, Chief Steward
For the College: Natalie Dorval, Interim Human Resources Manager
Dean Lessard, Associate Dean, Business and
Community Services
Doug Clark, Dean, Sciences
A Hearing was held in Kirkland Lake, Ontario on May 14, 2018
2
D E C I S I O N
This decision deals with the workload complaint of Professor Schaffer, claiming recognition on his
Standard Workload Form [SWF] for the fall semester of 2017 for work required to implement
retroactive accommodation for students with special needs, and compensation as remedy. The
College takes the position that no remedy is in order, as work required to accommodate students
with special needs is accounted for in the workload formula, is a duty of all faculty and does not
constitute an atypical circumstance which would warrant the attribution of additional hours on the
SWF in question.
The question to be determined is whether unforeseen work, accommodating special needs
students, late in the semester, should attract further attribution of time on Professor Schaffer’s
SWF for the fall semester of 2017. There is no other challenge to the propriety of the SWF.
The context to the dispute starts with the fact that the usual sequence for accommodating a
student with special needs is such that a professor is able to plan in advance to integrate this type
of work into his or her overall work assignment. Ideally, accommodation measures to meet
student needs will be identified with the help of the college’s accessibility services at the
beginning of the semester and passed on to the faculty to work with during the semester. These
measures often include extra time to do a test or assignment. Professors will then typically wait
until the student needing more time is finished before releasing grades or solutions or discussing
answers in class.
The fall semester of 2017 turned out to be more eventful than usual, in that there was a strike of
several weeks duration involving the academic bargaining unit, after which the fall semester was
extended into the new year. When the strike was over, there was a short turn-around time to deal
with requests such as the one Professor Schaffer faced. As the union noted, a variety of extra
work associated with the return to work after the strike fell to the faculty as well. Although the
union mentioned this as part of the unusual nature of the academic year in question, there was no
suggestion that, in general, SWF’s were, or ought to have been, revised to respond to the
interruption in teaching resulting from the strike or the prolongation of the semester into January.
On December 14 and December 19, 2017, Professor Schaffer was advised that two students had
requested retroactive accommodation, which included redoing 3 assignments that had already
been handed back to students and discussed with members of the class as well as a test.
Professor Schaffer spent somewhere between 8 and 15 extra hours as a result of the request,
including preparing fresh evaluation content, and then being present, so as to be available for any
questions that might arise, while one of the students wrote the assignments on December 20, and
3
then marking the evaluations on December 22. He worked approximately 3 hours on marking
and course presentations over the Christmas break that he had been unable to do before the
break due to the extra work on the accommodations.
Professor Schaffer’s SWF, prepared in May 2017, showed a total of 43.45 attributed hours, very
close to the maximum allowed by the workload formula. It shows 19.56 hours of complementary
function, which includes the standard 6-hour allowance, as well as time for certain meetings,
committee and union work, training and development.
The basic structure of the workload provisions set out in Article 11.01 B 1 of the collective
agreement is that the SWF is to record attributed hours up to 44 for up to 36 weeks in which there
are teaching contact hours for teachers in post-secondary programs, and the balance of the
academic year is reserved for complementary functions and professional dev elopment.
Procedurally, Articles 11.02 A1 and following contemplate that SWF’s are to be prepared six
weeks prior to the beginning of the period covered by the timetable excluding holidays and
vacations. Thus, the scheme of the workload formula is premised on advance, rather than
retroactive, attribution of hours for recognition of a teacher’s workload. The workload formula
does not state that time for accommodation should be a separate element in the attribution of
time for complementary functions. Indeed, it would likely be impossible to tell at the time the
SWF’s were done, what students would be in an individual professor’s class, and therefore what
might be involved in accommodating those students, not to mention that it is possible that a new
need for accommodation might arise or be identified during the semester.
As to the purpose and quantity of hours for complementary functions, Article 11.01 F 1 indicates
that four hours are to be attributed for routine out-of -class assistance to individual students in
keeping with the academic needs of students and two hours for normal administrative tasks.
Article 11.01 F 2 provides for the situation where the standard allocations may not be sufficient,
so that a teacher who has more than 260 students in his/her total course load is intended to
discuss the issue with his/her supervisor to consider possible means of alleviating the concern.
Failing agreement on how to best manage the situation the teacher shall be attributed an
additional 0.015 hour for every student in excess of 260. And then Article 11.01 G 2 provides that
where there are atypical circumstances affecting workload not adequately reflected in Article 11,
additional hours shall be attributed, following discussion between each teacher individually and
the supervisor, on an hour for hour basis.
Having considered the uncontested facts in light of the structure and specifics of the workload
formula, I am of the view that the most likely place to recognize unforeseen work that comes late
4
in the semester is the atypical circumstances clause. However, the work needs to meet the
threshold of not being typical.
Both sides acknowledge the importance of the duty to accommodate, and Professor Schaffer
clearly had that in mind when he rewrote the evaluation material when approached by the
accessibility services staff shortly before the winter break of 2017. The College notes that faculty
have been addressing the needs of students with special needs across the province from before
the time that the current collective agreement was negotiated, arguing that the parties ought to be
taken to have contemplated such work as a normal part of the workload formula.
Having carefully considered all the material before me, I am not persuaded that the work involved
in meeting the accommodation request was atypical, as it is clear that all faculty are required to
deal with accommodation requests as they arise, and I accept the employer’s submission that the
amount of work required in this case was not particularly unusual, in the sense of being
particularly anomalous, extreme or requiring some onerous type of accommodation.
The idea of retroactive accommodation is one that seems to be new to the parties, and no doubt
will continue to be discussed by the parties so all the interests at play can be taken into account.
The union expressed the concern that retroactive accommodation is an open-ended concept that
could require the whole semester be redone. Although that is one of the concerns that the parties
are free to deal with, the work done to meet the accommodation request in this case did not come
close to that level. More generally, I do not find that the future potential of the concept is a
reliable basis on which to award additional time on an individual professor’s SWF at this time.
Further, I do not see anywhere in the workload formula other than the atypical circumstances
clause which would lend itself to granting Professor Schaffer’s claims in this case. The number of
students involved, 73 at the outset of the semester, and fewer later on, does not come anywhere
close to the threshold in Article 11.01 F 1 which provides a specific route for increase of attributed
time where the number of students is over 260, nor did the union rely on this clause. Nor does
the evidence and argument before me persuade me that the attributed time for evaluation over
the semester was insufficient recognition for the workload assigned and the work required of
Prof essor Schaffer, including the accommodation work.
The parties have acknowledged extra remuneration for challenge exams or transcript reviews, but
those are for students that are not already accounted for on the SWF’s, and not part of the faculty
member’s course assignment. The union did not disagree with the college’s submission that the
5
type of accommodation in issue here is not similar to such requests in respect of students not
already accounted for by the workload formula.
The union’s submission that SWF’s are intended to be open and closed within the semester is
valid. However, I do not accept the further argument which was essentially to the effect that work
required to be done that could not have been contemplated at the time the SWF was done ought
to receive further attribution. As the employer emphasized, the parties set out to compensate and
account for faculty workload by way of a formula, rather than by assessing what amount of time
each individual faculty member puts in.
The union argued that the SWF is for one-time course delivery to a section of students, and that
additional delivery in whole or part should be recognized, perhaps as a new section. In response
to this idea, the College observes that the two students in question were already accounted for in
the workload for the same semester, such that it should not be considered an additional delivery
when what was required was issuing and marking 3 revised assignments and one revised test. In
my view, although there may be other cases in which facts would lead to acceptance of the idea
that the work done was equivalent to a new section, I do not find the concept to be a good fit in
the circumstances of this case, where two out of less than 70 students required retroactive
accommodation.
In the end, each case will turn on its specific facts, and what the work was. As well, it is fair to
take into account the concept stressed by the employer, to the effect that prior discussion with the
supervisor might well have resulted in the task being much less time-intensive. The College
observes that in this case the professor did the work changing the evaluation instruments before
talking to his supervisor, so that the supervisor had no opportunity to address it and give
suggestions or directions as to what was required. When they did discuss it after the fact, the
supervisor advised that completely rewriting the test was not required; altering the sequence of
questions and some of the figures would have sufficed. In these circumstances, the employer
finds the professor’s claim excessive. Part of this is a concern that there would be double-
counting if all the time Professor Schaffer made himself available for questions from the students
being accommodated was separately counted, as he could have been marking other things while
standing by. As well, the employer refers to its right to manage under Article 6, and the provision
in Article 11.01 1 B that the college may amend assignments, emphasizing that the teacher
cannot assign work and pay to himself.
There were several other matters raised by the parties including comments from both sides on
how the other side dealt with the WMG process, accommodation and relationship issues. I have
decided not to address them separately here, as they are not necessary to deal with them to
6
resolve the workload complaint, given my findings above. I will simply encourage the parties to
continue their discussions as to how to implement accommodation measures in a constructive
manner in the sprit of joint problem-solving.
In the result, for the reasons set out above, the workload complaint is dismissed.
Dated this 7th day of June, 2018.
Kathleen G. O’Neil, Workload Resolution Arbitrator