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HomeMy WebLinkAboutMcLaren 08-08-11 \ ., IN THE MATTER OF AN ARBITRATION l~ 6 .. c ':', BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (hereinafter called the "Union") - and - ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF St. LAWERENCE COLLEGE (hereinafter called the "College") - and - GRIEVANCE OF FRANK McLAREN OPSEU File No. 441702 (hereinafter the "Grievor") BOARD OF ARBITRATION: Richard H. McLaren Ron Kelly Ann E. Burke Chairman Union Nominee College Nominee COUNSEL FOR COLLEGE: J. Lynn Thomson COUNSEL FOR THE UNION: Susan Ballantyne HEARINGS in RELATION to this MATTER WERE HELD at KINGSTON, ONTARIO, on 6 JUNE and 21 SEPTEMBER 2005 and 11 JULY 2006 \. -, AWARD In 2001 Don Young became the Dean of the School of Computer and Engineering Technology and School of Skilled Trades {hereafter "ETT"} at St. Lawrence College. On his arrival at the College in 2001 there were no Coordinators in the trades' areas of the College. He implemented these positions in the ETT. The Grievor Frank McLaren 1 was one of four original Coordinator appointees by Dean Young in the ETT. The Grievor is the Coordinator of the industrial electrical and construction maintenance programs of the electrical apprenticeship program in the school of ETT. The students who attend classes in the trades' courses of instruction do so on a different basis than the other typical post secondary students of the College. The Union on behalf of Frank McLaren alleges in the grievance filed on 29 June 2004 that: . .. the College is violating Articles 6 & 14 specifically but not exclusively in that they have not recognized my co-coordinating duties as a Step 2 and have inconsistent practices for the Step 2 designation and as a result I am being compensated incorrectly. The settlement requested was for a declaration that the Collective Agreement had been violated and an order directing the College to cease and desist. More specifically it was requested that the Griever be designated as a Step 2 Coordinator and that his compensation be adjusted accordingly. At the first day of hearings the Union advised that it intended to proceed on the basis of the full grievance and to assert its rights under a local agreement. By the time of the second day of hearings, the Union had narrowed the scope of the grievance to a claim that for the academic year 2004-05 the Grievor ought to have been placed at Step 2 and not the first Step which he was paid. At the outset of the hearings counsel agreed that this matter was properly before the 2 Board. There were no objections as to the Board's composition, jurisdiction or as to the arbitrability of the matter. It was agreed by counsel that in the event the Grievor was awarded his grievance, the Board of Arbitration would remain seized of the remedy, allowing time for the parties to work out the appropriate remedy before the Board made a final award on the remedy. At a minimum Article 14.03 A 3 required the College to pay the Grievor an allowance equal to one step on the appropriate salary schedule in addition to the individual's annual base salary. The Grievor was at all times paid this single step since becoming a Coordinator. The College determined that the provision in Article 14.03 A 3 does not set out any criteria as to when a Coordinator ought to receive an allowance equal to two steps on the appropriate salary schedule. It was on that basis that the College paid and continued to pay the Grievor at the step one level. The Union asserts on behalf of the Greivor that, while the Grievor may have been correctly paid at Step one when he was made a Coordinator in 2001, by the time the grievance was filed in 2004 there was an additional intake of 18 students, a development that meant he was no longer adequately compensated. It is submitted that this change in enrolment makes him entitled to have been placed at the Step two level. In making its case, reference was made to the UCC minutes (Exhibit #6). They provide that: Three out of the following criteria would give you 2 steps on the grid: # students - more than 120 students Fewer than 3 full-time faculty More than 3 part-time (session, partial-load, part-time) faculty More than 2 different programs to coordinate The fifth criterion - first year of a new program. The Union applies the foregoing criteria and says that in 2004 the Grievor ought to have been paid at the Step two level. The College asserts that it withdrew from all local 1 The Greivor is not a relative of the Arbitrator. 3 agreements including Exhibit #6 referenced above. The College relies solely upon the Collective Agreement to determine that the Grievor is correctly paid at Step one. EVIDENCE Dean Young in his Memorandum of 21 May 2004 (Exhibit #7) indicates that on the basis of past practices and a comparison of the attendance of apprentice and post secondary students, he concluded that apprentice students spend less time at the school than do other post secondary students. The Dean performed some calculations that lead him to conclude that: Your students wi! be here less than one third of the time that post secondary students of a Step 2 coordinator will be here. He also pointed out that there are items described in the duties of Coordinators at the College that the Grievor did not do. He specifically cited: Provide leadership in curriculum development (.. .provided by the Ministry) Provide the program link with the advisory committee' (you do not have [one]) Organize advisor committee meetings On that basis the Dean testified he felt justified in concluding that he could not grant the request for a Step 2 Coordinator status for 2004 to Mr. McLaren. The Grievor in his testimony submitted that he met the three criteria on the list contained in Exhibit #6. Therefore, he is entitled to receive a second step because he meets the following stipulations: i) he is responsible for more than 120 students; ii) there are fewer than three full-time faculty; and iii) there are more than three part-time (session, partial-load, part-time) faculty. Each of these scenarios entails more work for the 4 Coordinator, which provides the justification for the movement to step 2. There is no dispute on two of the criteria relied upon by the Grievor. Therefore, the bulk of the evidence centered upon issues surrounding students and the work load they generated for an ETT trades Coordinator versus other faculty Coordinators. The Grievor in describing his work testified that unlike the academic programs of the College which have 2 intakes per year, the Grievor was responsible for 6 intakes per academic year. For each of these intakes the Grievor is required to develop a teaching roster, calculate the GPAs of all students, and create course timetables. While these are common duties for a Coordinator, the Grievor must perform these tasks six times per academic year as opposed to the 2 times per year required of other Coordinators. The Grievor in his testimony submits that students -irrespective of how long they attend the College- should be counted in the same way given that the same amount of administrative work is required for a student attending the College for 20 days as for a student attending for 150 days. If one looks at a Coordinator's workload for a standard post-secondary program of 20 hours per week for 30 weeks, the number amounts to 600 hours per year. Being responsible for coordinating three courses, the Coordinator would have a work load of 1800 hours per year. In contrast, the Grievor was responsible for 2168 - course hours for the year. Consequently, given the amount of work required of the Coordinator, the Grievor's workload is comparable to being responsible for 141 typical full time post-secondary students and he should thus be compensated at the second step 5 level. Dean Young testified that by way of background, there were no Coordinators in the trade's programmes prior to his assuming the Deanship of the ETT in 2001. The Grievor was made a Coordinator at the step one level in 2001. When the Grievor filed this grievance in 2004, the only argument advanced by the Union was that the Grievor was entitled to a step two allowance on the basis of one additional intake of 18 students in the Fall of 2004. In the Spring of 2004 the College withdrew from all local agreements and consequently, it was not applying different rules for 2004/2005 but rather since there were no agreements, the decision was made by application of Article 14.03 A 3 of the Collective Agreement. The Dean indicated that there are 12 Coordinators, 10 of whom are at the step one stage (including the Grievor) and 2 are at the step two stage. It should be noted that not all of the duties listed under the Coordinators job description, which is not part of the Collective Agreement, are performed by the individual Coordinator under the Dean's direct supervision. Much of the program in the trades' area of ETT is fixed by the Ministry of Education and consequently curriculum development and leadership are not tasks required of the individual Coordinators in the trade's areas. Dean Young testified in part by responding to points raised in the testimony of the Grievor. The Dean testified regarding the amount of students the Grievor is responsible for, the required mix of courses and the pre determined curriculum, and also stated that there is little extra work required of the Coordinator to give students course advice. He suggested that an overall analysis of all of the Coordinators duties and responsibilities is 6 required to ascertain whether or not the Grievor should be paid the step 2 allowance. It was his view that given the nature of the program and the Grievor's limited interaction with students, the allocation of the second step allowance is not justified. When compared with the other 9 coordinators at step one, the Grievor is fairly placed and compensated. Dean Young indicated that some of the factors that led to the College's decision to leave the Grievor at the Step 1 allowance were: the fact that students tend to be more mature and already embarked on a career path; that there was no need for the Grievor to provide curriculum leadership because the curriculum was dictated by the province; that Step 2 Coordinators also had programs which did not have provincially mandated curriculums, requiring additional work and planning on their part. Regarding some of the Grievor's specific claims, Dean Young contends that the scheduling of classrooms and timetables is not difficult given that it is a repetitive and familiar process. He also noted that grade recording is done by Excel spreadsheet and that grades are tabulated using a preset formula so that the user need only perform a clerical function. Dean Young testifies that the Grievor's responsibilities are not comparable to those of the two Coordinators at step 2. One level 2 Coordinator, Mr. Eli, had a diverse array of students including apprentices, and not just one common type of student. Furthermore, Mr. Eli was running three brand new programs, in addition to assisting in marketing efforts trying to attract new instructors to the College. The other step 2 Coordinator, Mr.Disbury, also had a non-consistent set of circumstances, including teaching apprentices and running 7 three programs. Among other duties, Mr. Disbury was responsible for developing a new technician program and given his mixture of students, multiple programs, and the fact that he was the head of his area of responsibility, Dean Young felt his work was commensurate with a step 2 allowance. ARGUMENT It is submitted on behalf of the Union that the Grievor has performed additional work and should be properly compensated with a step 2 allowance for this work. The parties had an understanding that should a coordinator meet 3 of the criteria set forth in Exhibit 6, then the coordinator would receive the second step. Despite the fact that the College had withdrawn from all local agreements by Spring of 2004, it was appropriate to refer to these criteria when the Dean in his Memo cites that he is using past practices as a model in making his decision. The facts are that Grievor had fewer than 3 full time faculty in his department, more than 3 part-time faculty and more than 120 students. The Union further argues that the Grievor should be paid the second step of the allowance because the coordinator must perform the same duties for all 141 students irrespective of how long they attend the program. Among other duties, the coordinator is responsible for processing every student and taking them through the beginning of the program. It is submitted on behalf of the College that Article 14.03 A leaves the decision of whether to pay a one -or tWo step allowance up to the College. The College further argues that the Article does not actually even.. require additional hours on the SWF and that the 8 article is unhelpful because it is not explicitly instructive. Given that the Article is not instructive, it reinforces the position that it is up to the College to establish the criteria for the awarding of the second step. The College argues that the work performed by the Grievor met only the criteria to be awarded step 1 of the allowance and not step 2. In further support of its position the College made reference to, and submitted the unreported majority decision of Chairman Brent in the grievance of J. Heron, in Niagara College v. Ontario Public Service Employees Union dated 6 August 1986. RELEVANT PROVISIONS OF THE COLLECTIVE AGREEMENT Article 14 SALARIES Guidelines Allowances - Professors 14.03 A 3 Coordinator Allowance - Coordinators are teachers who in addition to their teaching responsibilities are required to provide academic leadership in the coordination of courses and/or programs. Coordinators report to the academic manager who assigns their specific duties. It is understood that coordinators do not have responsibility for the disciplining of teachers in the bargaining unit. It is not the intention of him Colleges to require employees to accept the designation of coordinator against their wishes. Those employees who are designated as coordinators will receive an allowance equal to one or two steps on the appropriate salary schedule. Such allowance will be in addition to the individual's annual base salary. 9 . , DECISION The issue to be determined is the interpretation of Article 14.03 A 3 and the application of that interpretation to the facts established herein. The only salient point coming out of the Niagara College, case, supra is to this effect. Article 14.03 A 3 provides that the Coordinator Allowance may be equal to one or two steps on the appropriate salary schedule. It also makes it plain that the allowance is in addition to an individual's annual base salary. Therefore, the Collective Agreement is silent regarding the criteria to be used in making the decision to provide an allowance at the step two level. In such circumstances, the College is free. to establish criteria of its choice to meet its own particular needs. That point is confirmed by Arbitrator Brent in the Niagara College decision in interpreting a different and predecessor provision to the one this Board must interpret. The Grievor must be paid a Coordinator Allowance under Article 14.03 A 3 if he has been appointed a Coordinator. Dean Young did appoint him as a Coordinator and at all times the requirement of the Collective Agreement that he be paid an allowance has been met. What is in dispute here is whether on the filing of the grievance in 2004 the Grievor ought to have been paid at step two. Apparently for union-management relations purposes, the Union and the College had through the UCC committee established some criteria for when management might pay the allowance at step two. This is contained in the minutes of the UCC from 8 April 1998 and filed as Exhibit #6. The Union bases its case in this grievance on the criteria in Exhibit #6, which if IiteralJy applied would entitle the Grievor to an allowance at Step two. The College submits that this local agreement was unilaterally repudiated in the Spring of 2004. The Union does not accept that this was the case but even if it was, they argue that Dean Young, in referring to past practices as a model in his memo of21 May 2004 (Exhibit #7), has effectively revived the criteria previously found in the UCC minutes of some years 10 .. , earlier. This Board does not have to decide this local agreement unilateral repudiation issue. We may take the criteria as a guide or as Dean Young referred to it, as past practice. However, Dean Young in his testimony before us put forward various reasons which may be treated as additional criteria to obtain the allowance. The silence of Article 14.03 A 3 permits the addition of criteria by Dean Young, there being no specific guidelines in the Article by which to make the allowance step level decision. On the foregoing interpretation of the Article, this Board believes that relying solely upon the criteria set out in Exhibit #6 to determine whether the Grievor is entitled to compensation at step 2 is insufficient. The Board is satisfied that using the historical criteria (such as that which is laid out in Exhibit #6) when coupled with the other factors raised in Dean Young's testimony, there is good and sufficiently sound reason for not paying the allowance at the step two level. Article 14,03 A 3 of the Agreement does not address the criteria which Coordinators must meet to move to the step 2 level. The Dean of the School of ETT is able to use the management rights provisions of the Collective Agreement at his discretion as head administrator to decide when a Coordinator should be moved to step 2. Once the foregoing conclusion is reached, then it must be the case that in administering the Collective Agreement - in so far as it deals with the assignment of the level of Coordinators allowance - the decision must not be arbitrary, discriminatory or made in bad faith. There is no evidence of discrimination or bad faith nor is the point argued by the Union counsel. Is the decision arbitrary? The evidence is that there are real and valid distinctions between the two Coordinators who are paid at level two and the 10 others, including the Grievor, all of whom are paid at step one. Dean Young's memorandum of 21 May, 2004 (Exhibit # 7) to the Grievor puts forth Dean Young's rationale and justification for his . decision not to grant the Griev6r a move to step 2. Moreover, in his testimony at the . hearing, the Dean articulated what he saw as the :differencesin duties and the levels of responsibility between the step 2 Coordinators and the Grievor. While the Grievor may not 11 . , agree with the Dean's justification and rationale for his decision, the Board concludes on the evidence before it that the distinctions articulated by Dean Young are such that we must conclude that the Dean's decision not to pay at level two is not arbitrary. Therefore, the Board confirms the payment of the Coordinator Allowance to the Grievor for the 2004 academic year at the step one level. For all of the foregoing reasons it is found by this Board that there is no breach of Article 14.03 A 3 of the Collective Agreement. Therefore, it is ordered that the grievance be dismissed DATED at LONDON, ONTARIO THIS 11th DAY of AUGUST, 2006. ~/I?!)L_ Richard H. McLaren, C.Arb. Chairman " ~ I concur / dissent ~/JA/':~ Ron Kelly, Union Nominee I concur / dissent 'I .A S II A//IJ Ann E. Burke, College Nominee 12