HomeMy WebLinkAboutRodrigues 19-11-25In the Matter of an Arbitration
Between:
SENECA COLLEGE
(the College)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 560
(the Union)
Re: Grievance of Rodrigues – Staffing: Appendix V (Sessional Employees)
OPSEU File 2018-0560-0012
A W A R D
Paula Knopf – Arbitrator
Appearances:
For the Employer: Wallace Kenny, Counsel
Ted Bridge, Director, Human Resources
Crystal Ramdeo,
Hasseeb Wali
Sarah Arlis
For the Union: Christine Davies, Counsel
Robin Lostracco, Senior Grievance Officer, Arbitration Unit
Frank Yee, President
Jonathan Singer, Vice President, Equity
Matthew Cohen
Nancy Rodrigues, Grievor
The hearing of this matter took place in Markham , Ontario on
November 4, 2019.
1
The Union alleges that the College violated the Collective Agreement by failing
to designate the Grievor’s combined teaching and Program Coordinator
assignments as a regular full-time bargaining unit position. The Union seeks a
declaration that the Grievor be immediately designated as a full-time professor
and that she receive all the attendant rights and benefits that flow from that
status. The College disputes the grievance, asserting that the facts and the
Collective Agreement do not support the claim.
The parties presented their cases by way of statements that set out the factual and
contractual context for the dispute.
The Union relied on the statement of the Grievor, Nancy Rodrigues:
1. I am an employee of Seneca College. As explained in greater detail below,
I work as a Partial Load Professor and as a Program Coordinator.
2. My educational background is as follows. I have a degree in political science
from York University; a Masters in Education from Brock University; and
certificates in Adult Education and Human Resources Management from
Seneca College. I am currently earning my Masters in Business
Administration from the University of Fredericton, which I am doing by
distance online.
3. I have worked as a Partial Load Professor at Seneca College in the Faculty
of Business since 2009. At Seneca, the Faculty of Business encompasses
many programs and schools. I work in the School of International Business
& Management. There are currently around 45 full-time faculty in the School
of International Business & Management, around 2 sessional faculty, and
around 25 partial load faculty. I report to the Chair of that School, Sarah
Arliss. The Dean of the Faculty of Business is Mary Vaughan.
4. The courses I have taught include Organizational Behaviour, In troduction to
Human Resources, Effective Business Writing, College English, Career
Planning, Global Economic Issues, Canadian Political System, and
Introduction to Seneca Studies. All of the courses I have taught at Seneca
are also taught by full-time faculty.
5. I have primarily taught at the Newnham campus. I have also worked at the
Markham campus, and I taught for one semester at the York campus. The
Business program is primarily taught at the Newnham campus.
6. In the summer of 2015, I was offered the designation of Program
Coordinator position for the two-year Business Diploma program. The
2
Program Coordinator duties I took over in this role had previously been
performed by a full-time faculty member, Michael Wade.
7. All of my Program Coordinator work has been for the Faculty of Business. I
am the Program Coordinator for the two-year Business Diploma program
(“BBS”). This is a very large program in the Faculty of Business, and is a
’pathway’ program for many other programs (i.e. three -year Diploma
programs). At the time I began my duties as a Program Coordinator, there
were around 300 students in the program and today there are around 1,000
students in the BBS program. In May 2017, my Coordinator hours increased
from four to six hours per week in recognition of t he increased size of the
program.
8. There are other individuals working as Program Coordinators in the Faculty
of Business. All of them, except for me, are full-time faculty and long-
standing Coordinators. There is no one doing the Coordinator work at the
Faculty of Business who is not also a Professor. I am the only individual
doing this work who is not a full-time faculty member. The other individuals
who are Coordinators in the Faculty of Business include:
a) Debi Tziatis (Pre-Business Certificate)
b) Christina Italia (Business Administration-Management Diploma)
c) Mary Drane (Business Administration-Purchasing and Supply
Management Diploma)
d) Peter Forint (Business Administration-Entrepreneurship and Small
Business Diploma)
e) Maurice Platero (International Business Diploma-2 year)
f) Naveed Tariq (Honours Bachelor of Commerce-Management)
g) Varinder Gill (Honours Bachelor of Commerce- International
Business Management)
h) Rania Nafea (Business Administration- International Business
Diploma)
9. The BBS program for which I am a Program Coordinator is a large program
compared to other programs in the Faculty. The BBS program is also
crucial to the Faculty of Business as a whole, because the BBS program is
a pathway to other Diploma and Degree programs, within the Faculty of
Business. Student success and satisfaction is therefore very important for
my program.
10. My Coordinator work includes the following:
3
a) attending any activity that requires talking about or marketing the
BBS program, including orientation, open houses, College
information fair, presentation to high schools, Heads of Business,
and convocation;
b) program review, where the Coordinators review their respective
program from an academic standpoint, including learning outcomes
and compliance with Ministry of Training, Colleges and University
(MTCU) requirements;
c) attending Program Advisory Committee (PAC) meetings, which
addresses if the program is meeting the requirements of employers
to ensure graduates are hirable;
d) attending the promotion committee meetings, where we review all
of the students in the program to ensure they are on target for
graduation;
e) meeting with and counselling individual students, including
mentoring and coaching, as well as providing advice to students on
next steps (i.e. moving into one of the programs for which BBS is a
feeder), or counselling students who wish to withdraw or take breaks
f) reviewing transfer credits for students coming from other schools,
both internationally and within Ontario (includes reviewing course
outlines to match to our learning outcomes);
g) initiatives to retain students (initiated Business Talks event, where
we invite alumni from other programs to promote to my students into
those programs);
h) intake inquiries from the Admissions and Reg istration department
and helping to “triage” inquiries and issues;
i) writing communications;
j) working with employers on continuing education for their employees
(worked with McDonald’s Canada, which wanted training for its
employees);
k) sitting on the appeals committee as needed.
11. I perform the same work as my full-time colleagues do for their respective
programs, along with a similar teaching load.
12. In many respects, I am the “face” of the BBS program. My name is on the
promotional literature and the website as the point of contact for the
program.
4
13. I have travelled to other countries to appear on behalf of the College. I
designed training workshops that were delivered overseas. In 2017, I did
this work alongside a full-time colleague, Azhar Laher, and in 2018, I
developed additional content and travelled alone to deliver the workshops.
14.My 2017 and 2018 hours leading up to the grievance were as follows:
Teaching Contract Hours Coordinator Hours
October 2018 9 6
September 2018 9 6
August 2018 Took summer 2018 off to do MBA
July 2018
June 2018
May 2018
April 2018 12 6
March 2018 12 6
February 2018 12 6
January 2018 12 6
December 2017 12 6
November 2017 12 6
October 2017 12 6
September 2017 12 6
August 2017 12 6
July 2017 12 6
June 2017 3 6
May 2017 3 6
April 2017 12 4
March 2017 12 4
February 2017 12 4
January 2017 12 4
5
15. There are separate contracts for my teaching contract hours, Program
Coordinator hours, and any other duties the College assigns me. I am paid the
rate of a partial load teacher for both my teaching contract hours and
Coordination hours, but I am paid a lower rate for any contracts that are not
for either teaching hours or Coordinator hours. At the time I started the
Coordinator role in 2015, I was at Step 7, and I am now at Step 9.
16. In 2017, when other Coordinators (i.e. full-time faculty) went on summer
vacation, they asked me to help cover their Coordinator duties as well, and I
agreed to do so. This included fielding student questions and triaging
(redirecting students) if necessary.
17. It is disheartening for me that I am not considered a full -time faculty after all
this time, when all of my colleagues doing the same work have this status.
People are often surprised to learn I am not full-time.
18. I have continued working as a Partial Load Professor and Program
Coordinator since the filing of the grievance.
In response, the College relied on the following statement of facts and
contractual analysis, including its own added emphasis:
1. Part-time, Partial-load, and Sessional Teachers are all “Contract”
employees who are hired for specific terms. These teachers are released
at the end of their term contract and enter into a new contract for their
next assignment. This is to be distinguished from Regular Full-time
Teachers who are employed indefinitely subject to normal lay off or just
cause provisions.
2. Partial-load Teachers and Regular Full-time Teachers are covered by
the Full- time Academic Collective Agreement. Article 26.01 B of the
CBA defines a partial-load employee as “a teacher who teaches more
than six and up to and including 12 hours per week on a regular
basis”.
3. Regular Full-time Teachers have a maximum number of teaching
contact hours they can be assigned in a week but no minimum number
of hours. Article 11.01 I indicate that “Teaching contact hours for a
teacher in post-secondary programs shall not exceed 18 in any week.
Teaching contact hours for a teacher not in post-secondary programs
shall not exceed 20 in any week.”
4. There is a workload formula for Regular Full-time employees
contained in Article 11 of the Full-time Collective Agreement. Article
11.02 F 12 specifically indicates that “teacher” in the article does not
include partial-load teachers.
6
5. Part-time and Sessional Teachers are included in the Part-time
Academic Bargaining Unit that is the subject of this certification
application. “Part-time Teachers are defined in Schedule A to the
Colleges Collective Bargaining Act (CCBA) as:
Teachers who teach for six hours or less per week.
6. “Sessional” teachers are referenced in Schedule A to the CCBA as
Teachers who are appointed for one or more sessions
and who are employed for not more than 12 months in
any 24 month period.
7. The parties define Sessional Employees in Appendix 5 to the
collective agreement as
a full time employee appointed on a sessional basis for up to
12 full months of continuous employment tor non continuous
employment in a 24 month period.
8. Colleges have always distinguished between Part-time, Partial-load,
and Sessional Teachers based on the number of “Teaching Contact
Hours” each of these contract teachers are hired to teach in a week.
(a) If you are contracted to teach six or fewer hours you are treated
as a part- time employee.
(b) If you are contracted to teach more than six up to 12 hours per
week you are considered a partial-load employee (and in the
full-time bargaining unit)
(c) If you are contracted to teach more than 12 hours per
week you are considered a sessional employee.
9. In addition to teaching contracts which require the teacher to deliver
course material to students at scheduled times, Colleges regularly
enter into additional contracts with part-time, partial-load and sessional
teachers to engage in other types of activity at the same time as they
are teaching. This activity includes but is not limited to such things as
curriculum development, assuming academic leadership roles, or
taking on technical support or administrative functions.
10. Employment contracts to provide academic coordination, curriculum
review, technical support, tutoring, administration and other activities
are also regularly entered into with employees who have no teaching
contracts.
7
11. It would be the Council’s evidence that hours associated with
coordination or other non-teaching contact hours have never been
considered as hours which could be used to change a teacher’s status
from part-time to partial-load or from partial-load to sessional. That
has recently been challenged through the grievance procedure under
the full time academic bargaining unit.
12. It would be the Council’s evidence that the Colleges, when establishing
the employee lists for [the part-time] certification application in June
2017 followed the usual practice and included contract teachers who
had teaching contact hours of six or less hours per week (part-time)
and contract teachers who had teaching contact hours of more than 12
hours per week (sessional) regardless of what other additional non-
teaching assignments they may have being performing.
13. Persons without an assignment which included teaching contact hours
were not included.
The Submissions of the Parties
The Submissions of the Union
The Union asserts that the Grievor’s ongoing assignment to teach 12 hours per
week and to also perform Program Coordinator’s duties since 2015 establish
that she should be recognized as filling a full-time bargaining unit position. The
Union relies on Appendix V that mandates bringing a Sessional employee into
the bargaining unit after accumulating the stipulated service over a one or two-
year period. The Union submitted that the question of whether someone is
acting in a full-time role is a factual question and cannot be defined simply by
how a College chooses to designate or define a teacher’s role. The Union
stressed that the College should not be able to avoid its contractual obligations
by “artificially” hiring someone on a series of contracts as a partial-load teacher
with separate Coordinator duties. However, it was conceded that without the
Coordinator hours being added to the Grievor’s teaching hours, the grievance
would fail.
The Union relies on Article 14.03 where it provides that Coordinators are
“teachers” to assert that the Coordinators’ hours should be treated as “teaching
8
hours” for purposes of defining the Grievor’s status. It was also pointed out that
Coordinators are most commonly full-time faculty members. The Union stressed
that the Grievor is performing the workload of a full-time faculty member and
deserves to be compensated in the same way as a full-time professor who has a
similar workload. This was said to be supported by the fact that the Grievor is
considered to be the “face of the Business Diploma Program” and plays a key
role in the Department’s success. It was said that a careful factual analysis
should lead to the conclusion that the Grievor has essentially been employed as
a full-time faculty member for the relevant period.
The Union also pointed to Article 11 to submit that the Grievor’s duties equate to
or mirror a full-time workload. Arguing that teaching hours alone should not
determine status, it was said that the combination of the Grievor’s teaching
hours and “complementary functions” as a Coordinator are the equivalent of how
a full-time position is composed under the parties’ workload formula. The Union
also pointed to the Class Definition of a Professor, stressing that the Grievor’s
statement reveals that she performs all of these functions.
The Union placed great reliance on the award in St. Lawrence College v Ontario
Public Service Employees Union, Local 417, 2018 CanLII 26586 (ON LA)
(Parmar). In that case, it was concluded that a Sessional teacher’s assigned
teaching hours should be combined with her Program Coordinator duties to
entitle her to “roll over” into the bargaining unit by virtue of Appendix V. The
Union also asserted that an arbitrator has the jurisdiction to decide whether to
“bundle” duties to determine if they amount to a full-time position, as was
recognized in Algonquin College and OPSEU, Local 415, (FSL Grievance),
[2001] O.L.A.A. No. 632 (Knopf). The Union relied on the other following cases:
Algonquin College v. OPSEU, 2016 CarswellOnt 19306 (Jesin); Seneca College
v. OPSEU Local 560, 2013 CarswellOnt 18463 (Starkman); Sheridan College v.
OPSEU, Arbitration Award, November 6, 1996 (Schiff). The Union further
suggested that a previous decision of mine concerning Appendix V is
distinguishable on the facts and it should not preclude me from finding in the
9
Union’s favour in this case, see Algonquin College and OPSEU, Local 415
(McGinn), 2018 CarswellOnt 12293, 137 C.L.A.S, 13 CanLII 6868 (ONLA)
(Knopf).
Anticipating the Employer’s submissions, the Union argued that the Ontario
Labour Relations Board’s recent procedural decision in a Certification case
defining a part-time bargaining unit should not be determinative of an individual’s
rights in the case at hand, see OPSEU v. College Employer Council, August 28,
2019, OLRB 0805-17-R. In that case, the number of teaching contact hours was
used as the defining feature of part-time status for the bargaining unit. The
Union suggested that the Labour Board’s decision was based on concerns about
the uncertainty that would be created if the assessment depended on
employees’ different duties. The Union stressed that the case at hand deals only
with duties that belong to a full-time professor and that a finding in the Grievor’s
favour would create no risk of someone being in both units simultaneously. It
was stressed that this Arbitrator’s role is different than that of the Labour Board.
In essence, the Union argued that the combination of the Grievor’s teaching and
Coordination assignments actually placed her in the role of a Sessional
appointment, despite the way the College drafted her appointments. The remedy
the Union seeks is a declaration that the Grievor should have been considered
as a Sessional employee, entitled to regular full-time status effective the date
she was assigned the Coordinator responsibilities along with her assigned 12
hours of teaching. The Union also seeks the recognition of full-time status for
the Grievor and the compensation that would flow from such a ruling.
The Submissions of the College
The College acknowledged the dedication of the Grievor and her value to the
Department and the College. It was also accepted that there is an attraction to
taking a “holistic” approach to this case by looking at the volume and type of
duties she performs so well. However, it was submitted that the statutory
10
scheme and consistent past practice of the parties reveal that the Collective
Agreement prevents such an approach.
The College stressed that the parties have consistently distinguished between
and defined partial-load and sessional teachers on the basis of “teaching contact
hours”. Further, it was pointed out that Colleges often assign additional duties
to part-time, partial-load and sessional teachers that overlap with the types of
activities listed in the full-time workload formula without bringing about changes
in the status of the individuals. Further, it was stressed that bargaining units are
statutorily defined and cannot be adjusted.
The College also pointed to Articles 2.02, 2.03 A and 26 to argue that the
Collective Agreement recognizes three categories of full-time positions, i.e.,
“regular”, “partial-load” and ”sessionals”. It was said that the differences are
important for determining teachers’ rights within the full-time bargaining unit. It
was pointed out that the difference between a sessional and a regular full-time
position is the nature of the assignment, one being temporary and the other
being ongoing. It was stressed that this Collective Agreement has been applied
and interpreted for decades on the premise that teaching contact hours are the
basis for determining status in or outside for this bargaining unit and for
determining the rights within the Collective Agreement itself. Recognizing that
there is a body of caselaw that deals with when full-time positions ought to be
offered so that Colleges do not abuse the usage of sessional and partial-load
appointments, the College stressed that this case is not an Article 2.03 B or
2.03 C grievance. It was suggested that it is always open to the Union to allege
that a combination of partial-load or sessional duties could give rise to a breach
of Article 2. However, the College pointed out that this case is one where the
Union is attempting to have the Grievor deemed to be a sessional employee
entitled to the roll-over when she is, in fact, a partial-load employee.
Accepting that the Grievor may be doing a workload akin to that of a full-time
faculty member, the College submitted that “this is not the test”. The College
stressed that Article 11 is drafted to show that the parties distinguish teaching
11
hours from other types of duties of a teacher. Further, it was said that Article
11.02 F 12 makes it clear that the parties never intended partial-load teachers to
be included in the workload calculations. Further, it was said that Article 26.02 A
makes it clear that partial-load teachers are paid only on the basis of teaching
contact hours.
The College also pointed to the fact that the Colleges Collective Bargaining Act
defines part-time teachers on the basis of how many hours they teach. It was
submitted that Coordinator hours cannot be treated as “teaching hours” because
the parties distinguish these duties in Article 14.03 A 3 by saying that the
Coordinator Allowance is for duties “in addition” to teaching. Therefore, it was
submitted that the Union cannot ask for Coordinator hours to be converted or
bundled into teaching hours for purposes of finding that the College effectively
assigned her enough “teaching” hours to entitle her to sessional status.
The College also submitted that the recent decision of the OLRB, cited above,
should dispose of this grievance because it affirms the statutory and consistent
contract interpretations that used teaching contact hours to define bargaining
unit status in this sector.
In support of its arguments, the College relied on OPSEU v. College Employer
Council, August 28, 2019, OLRB 0805-17-R; Algonquin College, August 3, 2018
(O’Neil); Shorter Oxford English Dictionary; Schedule A to Colleges Collective
Bargaining Act, 2008; Schedule A to Colleges Collective Bargaining Act prior to
2008; College Compensation and Appointments Council, June 17, 2010; College
Compensation and Appointments Council, January 11, 2011; College
Compensation and Appointments Council, March 27, 2012; Fanshawe College,
November 28, 1989 (Brent); Fanshawe College, May 9, 1990 (Brent); Fanshawe
College, November 28, 1984 (Delisle); Fanshawe College, March 6, 1980
(Rayner); Fanshawe College, November 28, 1983 (Brunner); St. Clair College,
October 27, 1987 (Kates); Niagara College, March 23, 2007 (Tacon); Algonquin
College, July 18, 2018 (Knopf); St. Lawrence College, March 26, 2018 (Parmar);
Seneca College, 2013 CarswellOnt 18463 (Starkman); Algonquin College, June
12
29, 2015 (Knopf); Algonquin College, June 21, 2005 (Tacon); Humber College,
December 31, 1990 (Knopf); Fanshawe College, December 16, 2003 (Knopf).
The Union’s Reply Submissions
The Union responded to the suggestion that it could have approached this case
with an Article 2 grievance by submitting that the College cannot avoid the
question of whether the Grievor’s Coordinator duties can or should be bundled
together with her teaching contact hours to have created a regular full-time
position.
Responding to the submissions about the OLRB decision, the Union challenged
the correctness and some assumptions in that decision, but stressed that this
case is not an attempt to review or reverse that decision. Instead, this grievance
was said to be treated as an individual’s case, with distinct facts that deserve a
conclusion in the Grievor’s favour.
The Decision
If this grievance could be resolved on the basis of whether the Grievor is
shouldering the duties and responsibilities of a full-time professor or whether she
deserves a full-time appointment, it would be easy to decide in her favour. Her
workload and her achievements are very impressive. However, this decision
must be based on the governing statute and the Collective Agreement. The
statute provides the definition of the full-time and part-time academic bargaining
units in Schedule 1:
SCHEDULE 1
Full time academic staff bargaining unit
1 The full time academic staff bargaining unit includes all persons
employed by an employer as teachers, counsellors or librarians, but does
not include,
13
. . . . . .
(d) teachers, counsellors and librarians who are included in the part
time academic staff bargaining unit;
Part time academic staff bargaining unit
2 (1) Subject to subsection (2), the part time academic staff bargaining unit
includes all persons employed by an employer as,
(a) teachers who teach for six hours or less per week;
(b) . . . ., and
(c) teachers, counsellors or librarians who are appointed for one or
more sessions and who are employed for not more than 12 months
in any 24-month period.
The relevant provisions of the Collective Agreement are:
Article 1 RECOGNITION
1.01 The Union is recognized as the exclusive collective bargaining
agency for all academic employees of the Colleges engaged as teachers,
counsellors and librarians, all as more particularly set out in Article 14,
Salaries, except for those listed below:
. . . . . .
(v) teachers, . . . . employed on a part-time or sessional basis.
NOTE A: Part-time in this context shall include persons who teach six
hours per week or less.
NOTE B: Sessional in this context shall mean an appointment of not more
than 12 months duration in any 24 month period.
Article 2 STAFFING
2.02 The College will give preference to the designation of full-time
positions as regular rather than partial-load teaching positions, as defined
in Article 26, Partial-Load Employees, subject to such operational
requirements as the quality of the programs, their economic viability,
attainment of the program objectives, the need for special qualifications
and the market acceptability of the programs to employers, students, and
the community.
2.03 A The College will give preference to the designation of full-
time positions as regular continuing teaching positions rather than
sessional teaching positions including, in particular, positions arising as a
14
result of new post-secondary programs subject to such operational
requirements as the quality of the programs, their economic viability,
enrolment patterns and expectations, attainment of program objectives,
the need for special qualifications and the market acceptability of the
programs to employers, students, and the community. The College will
not abuse sessional appointments by failing to fill ongoing positions as
soon as possible subject to such operational requirements as the quality
of the programs, their economic viability, attainment of program
objectives, the need for special qualifications, and enrolment patterns and
expectations.
2.03 B The College will not abuse the usage of sessional
appointments by combining sessional with partial-load service and
thereby maintaining an employment relationship with the College in order
to circumvent the completion of the minimum 12 months sessional
employment in a 24 month period.
Article 11 WORKLOAD
11.01 A Each teacher shall have a workload that adheres to the
provisions of this Article.
11.01 B 1 Total workload assigned and attributed by the College to a
teacher shall not exceed 44 hours in any week for up to 36 weeks in
which there are teaching contact hours for teachers in post -secondary
programs and for up to 38 weeks in which there are teaching contact
hours in the case of teachers not in post-secondary programs.
The balance of the academic year shall be reserved for complementary
functions and professional development.
Workload factors to be considered are:
(i) teaching contact hours
(ii) attributed hours for preparation
(iii) attributed hours for evaluation and feedback
(iv) attributed hours for complementary functions
11.01 B 2 A “teaching contact hour" is a College scheduled teaching
hour assigned to the teacher by the College. . . . .
11.02 F 12 References to "teacher" in this Article include "instructor"
but do not include partial load teachers.
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. . . . . .
15
Article 26 PARTIAL-LOAD EMPLOYEES
26.01 A This Article contains provisions exclusively related to partial-
load employees. However, this Article is not inclusive of all rights of
partial-load employees under the Collective Agreement.
26.01 B A partial-load employee is defined as a teacher who
teaches more than six and up to and including 12 hours per week on a
regular basis.
26.02 A A partial-load employee shall not receive salary or vacations
but shall be paid for the performance of each teaching contact hour at an
hourly rate calculated in accordance with 26.04.
APPENDIX V SESSIONAL EMPLOYEES
1 The terms of this Appendix relate to persons employed on a
sessional basis. Sessional employees are excluded from the bargaining
unit.
2 A sessional employee is defined as a full-time employee appointed
on a sessional basis for up to 12 full months of continuous or non -
continuous accumulated employment in a 24 calendar month period.
Such sessional employee may be released upon two weeks' written
notice and shall resign by giving two weeks' written notice.
4. If a sessional employee is continued in employment for more than
the period set out in paragraph 2 of this Appendix, such an employee will
be thereafter covered by the other provisions of the Agreement. Such an
employee's probationary period shall be 12 full months of continuous or
non-continuous accumulated employment during the immediately
following 24 calendar month period.
The Grievor was hired on a series of partial-load contracts to teach 12 hours per
week and she was also contracted to perform four to six hours as the
Coordinator for her program. She is valued in that role. She is being paid on
the basis of her teaching contact hours and paid separately for the Coordinator
duties. This arrangement is not uncommon in the College sector, although
Coordinators are most often full-time faculty members. The Union properly
conceded that unless her six hours of Coordinator duties can be added to her
teaching contact hours, she cannot be deemed to be a sessional employee and
the grievance would not succeed. Therefore, the fundamental question in this
16
case is how to treat the Coordinator hours for purposes of determining the
Grievor’s status.
It is best to start with the wisdom of others as seen in the caselaw in order to
view the facts of this case in the context of how this Collective Agreement
operates.
In Algonquin College and OPSEU (2015-0415-0019), supra, Arbitrator Jesin
rightfully advised the Colleges in an Article 2.03 case:
. . . although it is within the Employer’s discretion to determine whether
work is to be scheduled and performed on a full-time basis, it is not within
the Employer’s discretion to deny the existence of a full-time position,
when work is required to be performed and indeed is assigned on a full-
time basis. (para.9)
That decision makes it clear that if a College requires the regular and continuing
teaching of courses to be done, the positions should be designated as full-time
positions. It also warns that the facts, rather than the designation of an
employee’s status, will determine the outcome. However, that case dealt with
the question of whether the College had failed to post a full-time position. Such
a case involves an analysis of a body of sessional and partial -load assignments
over a period of time to see if they amount to a regular full-time position. A
successful grievance under Article 2 results in a declaration that a regular full-
time position exists and must be posted. An Article 2 grievance involves
different questions than the case of the Grievor which asks whether an individual
should be declared to be a sessional and/or a full-time professor.
At all relevant times, the Grievor has been hired as a partial-load professor. The
grievance asks that she be recognized factually as a sessional appointment,
entitled to the benefits of Appendix V. The only way this grievance can succeed
is if her Coordinator hours are added to her assigned teaching hours.
A teaching hour is a term of art in this Collective Agreement. It is a “teaching
contact hour” as defined in Article 11.01 B 2 as a “scheduled teaching hour
17
assigned to the teacher.” This is something distinct from the other
“complementary functions” of teachers set out in Article 11.01 B 1, such as
preparation, evaluation, feedback and “complementary functions”. The
complementary functions can include Coordination for a regular full-time
teacher, but they are treated differently than teaching contact hours in Article
11.01 F 1. This is made crystal clear in Article 14.03 A 3 where the parties
acknowledge that while Coordinators are teachers, Coordinators’ hours are “in
addition to their teaching”. Therefore, it is difficult to conclude that the parties
intended Coordinator duties to be added to teaching contact hours for purposes
of allowing a teacher to move from one status to another.
Bargaining unit status has consistently been defined in this Collective
Agreement and sector on the basis of teaching contact hours. This was
recognized in the recent OLRB decision concerning the certification application
for part-time employees, supra. In that decision, Vice-Chair Wilson carefully
summarized the relevant case law and parties’ history, outlining the issues that
compelled the result. It warrants a fulsome quotation because of its relevance to
this case:
14. In addition to teaching contact time, Colleges regularly enter
into additional contracts with teachers to perform other types of
activity. This includes, but is not limited to, curriculum development,
assuming academic leadership roles, technical support or administrative
functions. The Colleges also enter into contracts for these types of
activities with individuals who have no teaching contracts.
15. What is this case about? OPSEU asserts that hours that
are not teaching contact hours (referred to as ancillary duties) ought to be
included in determining whether the teacher falls within the part -time
academic bargaining unit or the full-time academic bargaining unit.
16. Put another way, the parties disagree about whether hours
associated with coordination or other non-teaching contact hours ought to
be allowed to change a teacher’s status from part-time to partial-load or
from partial-load to sessional status. In essence, OPSEU’s position is
that a teacher may “roll in” or “roll out” of a bargaining unit based on the
hours that the teacher is assigned to work (usually through individual
employment contracts entered into with the College).
18
17. The Council asserts that such hours have never been
counted for this purpose and that such a result wo uld lead to a chaotic
arrangement that undermines long standing collective agreement
practices and understandings. OPSEU asserts that work in the
classroom, as well as other activities such as curriculum development,
test invigilation, coordination and field placement supervision ought to be
counted. This has been the subject of recent arbitration awards that will
be reviewed further in this decision.
18. The Board was provided with a number of examples where
employees had a mixture of duties resulting from multiple contracts of
employment with a College. These examples illustrate the nub of the
dispute between the parties. Employees characterized as Partial Load
employees under the full-time academic agreement have accepted
additional contracts involving assignments that range from lab work to
coordinator duties to program assistance and research. An employee
might have 12 hours of teaching time (and therefore be categorized as
Partial Load) and 2 hours of Program Assistance work. OPSEU argues
that the non-teaching duties ought to be combined to determine the
employee’s bargaining unit status. In the examples provided by OPSEU,
those employees would “roll out” of the full-time academic bargaining unit
as Partial Load employees to Sessional employees and therefore fall
within the part-time academic bargaining unit. In each example provided,
the Council argues that the employee cannot “roll out” (or “roll in” for that
matter) from one status to another based on the non-teaching work. In
the examples provided, the Council argues that the employees remain
covered by the full-time academic collective agreement as Partial Load
instructors.
. . . . .
28. In interpreting the scope of the bargaining unit, as defined in
the CCBA, the Board must consider the statutory provisions in their
context as well as interpret those provisions in a way that gives a
harmonious interpretation of the Act. In Rizzo & Rizzo Shoes Ltd.
(Re), 1998 CanLII 837 (SCC), [1998] 1 SCR 27, the Supreme Court of
Canada adopted the following analytical framework as articulated by
Elmer Driedger in Construction of Statutes (2nd ed. 1983):
Today there is only one principle or approach, namely,
the words of an Act are to be read in their entire
context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of
the Act, and the intention of Parliament.
29. Thus, while the Board must examine and interpret the words
of section 2(1) of Schedule 1 of the CCBA, it must also have regard to the
parties’ practice that has emerged over the last four decades. This is
19
relevant because the bargaining unit as defined in the statute is lifted from
the parties’ full-time academic collective agreement. Despite dealing with
different issues, the arbitral jurisprudence is helpful in understanding the
parties’ practice over the years and the ways the assignment of duties
has been dealt with under the full-time academic collective agreement.
30. It is worthy to note that the statutory provisions defining the
part-time bargaining unit are lifted from the full-time academic collective
agreement. The Board made the following observations about the
statutorily defined bargaining unit in College Compensation and
Appointments Council, 2011 CanLII 402 (ON LRB):
21. I conclude that the union’s analysis is the more
persuasive. It is apparent to me that the drafters of the
legislation, “lifted” the parties’ well-understood concept
of a “sessional instructor” and dropped it into the
definition of the part-time academic bargaining
unit. The Legislature merely wanted to signal that
appointed sessional instructors, who were known to be
excluded from the full-time academic bargaining unit,
were to be included in the part-time academic unit.
22. I am confirmed in this analysis by excerpts from “A
Review of the Colleges Collective Bargaining Act”
(February 1, 2008). Mr. Justice Kevin Whitaker, who
was then Chair of the Labour Relations Board, at page
53, made the following Recommendation 2:
Create two new province wide bargaining units,
defined in the statute. The part time academic unit
should include sessional instructors…..
23. In his commentary, Mr. Justice Whitaker noted that
the inclusion of sessional instructors in the part-time
academic unit had been a recommendation of the
colleges. Sessional instructor is a term of art in this
sector. I am satisfied that for the purposes of the
definition of the part-time unit, a “full-time employee
appointed on a sessional basis for up to 12 months of
continuous or non-continuous accumulated
employment in a 24 calendar month period” is the
same as a “sessional instructor” as it is currently
defined in the collective agreement that governs the
full-time academic bargaining unit.
31. Under Schedule A of the CCBA, teachers who are included in
the part-time academic bargaining unit are excluded from the full-time
20
academic bargaining unit. Thus, a teacher cannot be in both bargaining
units.
32. It is evident that duties, whether they are characterized as
non-teaching duties or ancillary duties, are distinct from teaching
duties. The full-time academic collective agreement contains numerous
instances where such a distinction is made – the workload provisions in
Article 11 of the collective agreement being just one significant example.
33. The part time academic bargaining unit as defined in Section
2(1) of Schedule A of the CCBA requires (a) the individual to be
employed as a teacher and (b) focuses not on the hours worked, but
rather on the number of teaching hours and number of sessions. It
specifically includes “…teachers who teach for six hours or less per week”
as well as “teachers …who are appointed for one or more sessions and
who are employed for not more than 12 months in any 24 -month period”.
34. There is no doubt, as OPSEU argued, that being a teacher
involves more than just teaching contact hours. It cannot be disputed that
a teacher engages in many functions to fulfill teaching duties. This may
include direct contact with students (e.g. office hours, lab work), some
indirect contact with students (e.g. grading assignments), and some
functions with no contact with students (e.g. curriculum development).
35. However, the provisions of the full-time collective agreement
that deal with additional responsibilities are negotiated by the parties to
either regulate the workload (Article 11) or recognize the duties through
compensation (Article 14.03 A3). These provisions reflect the complexity
of assigning multiple duties, involving various skills, knowledge and
experience, to a teacher. The provisions do not result in or suggest a
conversion from part-time or partial load status to something else, such
as full-time status. There are no provisions that allow for a roll-over from
part-time status into the full-time academic collective agreement
. . . .
42. The parties have also defined a teaching contact hour so that
it is clear what activity is counted and the quantum of time that is used for
the calculation. The parties have also negotiated parameters for
attribution of preparation time as well as complementary functions. For
example, under the full-time academic collective agreement, hours for
curriculum review or course development assigned to a teacher on an
ongoing basis, in lieu of teaching or in a non-teaching period, shall be
attributed on an hour for hour basis and recorded in the Standard
Workload Form. This is just one example of many in the full-time
academic collective agreement – in particular Article 11 - where the
parties have contemplated the separation of teaching contact hours from
other work that teachers may perform.
21
43. In contrast, partial load teachers, who are not subject to the
workload provisions under Article 11, are paid for the performance of
each teaching contact hour at an hourly rate under Article 26.02A.
44. Thus, while OPSEU argues that ancillary activities ought to
be included in determining the status of a teacher, the parties have
negotiated how these activities are to be treated for the purpose of
determining and limiting workload for full-time teachers under the full-time
academic collective agreement. And furthermore, the parties have
stipulated that partial load teachers are to be paid hourly for teaching
contact hours.
45. While this is certainly not dispositive of the issue before the
Board, it does lend support to the Council’s position that the parties have
treated teaching time as an activity distinct from other ancillary activities
that can be assigned to a teacher.
. . . .
56. It is not necessary to exhaustively review the various
arbitration awards referred to me by the Council other than to repeat the
observation that there is a clear distinction between the assignment of
teaching duties on the one hand and non-teaching duties (occasionally
referred to as ancillary duties). The parties have not historically treated
the non-teaching duties as part of the calculation to move a teacher from
part-time to partial load to sessional status under the collective agreement
with the effect that the teacher might move in or out of the full-time
academic bargaining unit.
57. It has long been recognized that duties and functions of
members of the support staff bargaining unit and the academic bargaining
unit may overlap, and that such overlap is not determinative of which
bargaining unit the position falls.
. . . .
only teaching contact hours are to be used in the determination of an
individual’s bargaining unit status. As explained earlier in this decision,
this conclusion leads to a more harmonious interpretation of the statutory
provisions as they are read in their entire context.
76. The Board is being asked to determine whether the status of
teachers under section 2(1) of Schedule 1 of the CCBA ought to include
ancillary duties or whether it is limited to teaching contact hours. For the
foregoing reasons, the Board determines that it is only teaching contact
hours that is to be used to determine the status of teachers for the part -
time academic bargaining unit.
22
I agree with the Union in its submissions pointing out that the concerns of the
OLRB about the make-up of a bargaining unit are different than the issues
raised in the case at hand. However, the importance of the OLRB decision to
the Grievor’s case is the Labour Board’s recognition of the fact that the parties
and arbitrators have historically and almost consistently used teaching contact
hours to determine a teacher’s status in and outside of this bargaining unit.
Further, the OLRB decision points out that duties outside of teaching contact
hours have not been recognized as warranting the movement of a teacher from
one status to another. The only exception to this is the decision in St. Lawrence
College, supra. That case is somewhat similar to the case at hand because the
Union had asked for an employee’s teaching and Program Coordinator duties to
be combined to give an employee the benefit of the Appendix V roll-over into
regular full-time status. It was concluded that the Grievor’s assigned
Coordinating duties should be considered together with her teaching contact
hours to determine her status under the Collective Agreement, resulting in her
being deemed to have worked as a sessional employee for a period long
enough to trigger the roll-over into full-time status under Appendix V. This
decision was premised, largely, on the conclusion that the parties “intended
sessional status to be determined with regard to the type of assignment full-time
bargaining unit professors have, which m ay or may not include teaching more
than 12 hours per week.”
I would very much like to follow the St. Lawrence College decision because it is
well reasoned on the basis of the submissions received. Further, I would like to
apply it to this case because of the quality and value of the work that the Grievor
is doing for the College. There is an instinctive attractiveness to being able to
determine status on the basis of what a person is actually doing. It is also
important to ensure that the Colleges do not abuse their management functions
to circumvent the requirement of giving preference to the creation of regular full-
time positions.
23
However, there are several reasons why I cannot reach the same conclusion
that was reached in the St. Lawrence College decision. First, I have had the
benefit of different arguments and factors presented to me. Second, Schedule 1
of the governing statute makes it clear that bargaining unit status is defined on
the basis of teaching hours. Teaching hours are assigned teaching hours as
distinct from all the other duties associated with any teaching status, such as
preparation, evaluation, technical support, leadership and the other
complementary functions performed by teachers. Further, the OLRB decision
was released after the St. Lawrence College Award. The OLRB’s decision has
clearly defined the part-time bargaining unit on the basis of teaching contact
hours based on the statute and the recognition of the parties’ consistent practice
of never considering non-teaching contact hours as a trigger for a change from
part-time to partial-load or sessional status. The OLRB used teaching contact
hours to establish the employee lists for the part-time certification application.
To decide that something other than teaching contact hours can or should now
be recognized as a factor that determines status could put this entire process
into disarray.
Further, even though one may be tempted to determine a teacher’s status on the
basis of “the type of assignment full-time bargaining unit professors have”, the
evidence presented at this hearing reveals that this would lead to untold
problems. It is true that the Grievor’s duties mirror those of her colleagues who
have full-time status. However, there are a myriad of “types” of full-time
professorial assignments. A regular full-time “teacher” may have more or less
than 12 hours of teaching contact hours. S/he may have many different types of
complementary functions. The scope and focus of their appointments can be so
diverse that it would be virtually impossible to define exactly what constitutes the
“type of assignment” that could define a full-time bargaining unit professorial
position. Therefore, in the statutory and contractual scheme that applies to
these parties, it makes greater labour relations sense to continue to interpret and
apply this Collective Agreement by treating teaching contact hours as the critical
distinguishing factor between partial-load and sessional employees.
24
This decision is also consistent with the award in Seneca College and OPSEU,
(Assignment of Coordinator Duties), supra. The Union had argued that a College
could not assign coordinator duties to a partial-load employee and must instead
assign them to a full-time professor. In a unanimous decision by an arbitration
board chaired by David Starkman, it was concluded that nothing in Article 14
prevents a College from assigning duties in addition to teaching contact hours to
partial-load employees. As a result, it was concluded:
If, after making reasonable efforts, the College cannot find a Full Time
Professor(s) willing and able to accept the Coordinator Duty assignment,
the College can then exercise its management right to assign the
Coordinator Duties to a suitable Partial-Load Professor who is willing to
accept the assignment, and to pay such Partial-Load Professor one or
two steps greater on the Partial-Load pay grid. This result is the only way
this Board of Arbitration can find to give meaning to the language used by
the parties, and to arrive at a result that makes labour relations sense.
(para.22)
That decision respects the importance of giving preference to the designation of
full-time positions as regular rather than partial-load teaching positions. That
preference is critical to the integrity of the full-time bargaining unit and the
prohibition of Colleges avoiding the posting of a regular full-time position when a
full-time teaching load exists. However, it also recognizes that a Coordinator
assignment does not change the partial-load status.
In the case at hand, the Grievor had a teaching load of 12 hours at all critical
times. That is the limit that can be assigned to a partial-load teacher. However,
the evidence does not lead to the conclusion that there was a requirement for a
continuing teaching position of 12 or more teaching contact hours or that the
Grievor had more than 12 teaching contact hours. Further, a finding in the
Union’s favour would not be consistent with the way the parties, the vast body of
caselaw and the OLRB have applied and interpreted bargaining unit status
under this Collective Agreement.
25
I am very sympathetic to the Grievor’s situation. She works alongside
colleagues with full-time status and full-time benefits who make more money and
enjoy much greater job security than she has. The undisputed evidence
highlights her dedication to the Program and her students. The College made it
clear that she is valued for all that she does. Yet the attainment of full-time
status under this Collective Agreement is not based on these factors. As a
result, she is “disheartened” because she has not been considered to be a
member of the regular full-time faculty. However, her appointment is consistent
with partial-load status and her additional assigned Program Coordinator duties
are within the scope of the College to assign to her.
Accordingly, the grievance must be dismissed.
Dated at Toronto this 25th day of November, 2019
________________________
Paula Knopf - Arbitrator Generated by CamScanner