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HomeMy WebLinkAboutStellings 10-02-09 IN THE MATTER OF A WORKLOAD RESOLUTION ARBITRATION BETWEEN GEORGE BROWN COLLEGE (Herein after referred to as "the College") AND THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR ACADEMIC EMPLOYEES) (Herein after referred to as "the Union") Complaint of Jennifer Stellings WORKLOAD RESOLUTION ARBITRATOR: Tanja Wacyk APPEARANCES: FOR JENNIFER STELLINGS: Jennifer Stellings Tom Tomassi, Co-Chair of the College Workload Monitoring Group FOR THE COLLEGE: Brenda Bowlby, Counsel Varujan Gharkhanian, Co-Chair of the College Workload Monitoring Group, and Manager, Labour Relations Luigi Ferrara, Directol' of the School of Design Jonathan Gould, Manager of Operations, School of Design Elizabeth Spears, Director, Centre for Business Sherry Taylor, Senior Human Resources Consultant Marianna Policicchio, Labour Relations Assistant LOCA TION OF HEARING: Toronto, Ontario AWARD BACKGROUND: I. Ms Stellings is a professor in the School of Design. She complains that work she performed for cUlTiculum review and revision of the Design I and 2 courses should have been recorded on her Summer 2009 Standard Workload Form ("SWF'). 2, Ms Stellings' claim relates to two discrete periods within the summer semester. In the first instance, she claims credit for work performed during her vacation time, which she maintains she fOlfeited in order to perform the work. The balance relates to a period following her retutn from sick leave, 3. There was also an issue raised by the College regarding whether Ms Stellings had ever made the necessary "complainf' referred to in article 11.02 A 6(a) in order to bring this matter forward. However, as that issue would involve calling evidence, and in light of my determination regarding the other jurisdictional challenges to Ms Stellings' complaint I have not addressed that issue. THE FACTS: 4. The essential facts, as I find them, are as follows. 5. During the period at issue, Ms Stellings carried a part-time teaching workload as she was released for 23 hours per week to enable her to conduct union business. 6. Prior to Ms Stellings taking vacation, there had been discussion within the School of Design regarding revising the outline for Design I and 2, the two courses Ms Stellings taught. 7. As Ms Stellings was on vacation during the months of May and June 2009, another I professor was asked to revise the course outlines during this period. The College maintains that Jonathan Gould, the Manager of Operations, sent Ms Stellings a memo advising her that the revisions were being made by her colleague, and that Ms Stellings could review the revisions and give feedback once she returned from holiday. 8. In any event, as indicated above, Ms Stellings maintains she spent several days during her vacation working on the revisions. 9. Following her return from vacation, Ms Stellings met with Luigi Ferrara, the Director of the School of Design, and asked that time be added to her SWF for work related to the curriculum review. Mr. Ferraro indicated this would take Ms Stellings into oveliime, and asked that instead, she try to reduce her union hours. Prior to resolution of the issue, Ms Stellings left on sick leave. 10. By the time Ms Stellings returned from sick leave, less than two teaching weeks remained in the courses she would have been teaching. As Ms Stellings' replacement was entitled to two weeks notice prior to being relieved of teaching duties, and to avoid disruption so close to the end of the session, the College relieved Ms Stellings of her teaching assignment, and Mr. Gould suggested she just work on the course outline, 11. As indicated earlier, Ms Stellings claims that additional hours should be added to her SWF for her work on the curriculum review during this period as well. PRELIMINARY CHALLENGE: The College Work Performed During Vacation 12. The College points out that pursuant to article 11.02A 6 (b) of the collective agreement, the jurisdiction of a Workload Resolution Arbitrator (UWRA") relates only to atiicles 11.01 and article 11.02. That article states: 2 11.02 A 6(b) Grievances arising with respect to Article II, Workload, other than 11.0 I and 11.02 shall be handled in accordance with the grievance procedure set out in Article 32, Grievance Procedures. 13. The College maintains that my jurisdiction as a WRA extends only to disputes arising out of a SWF and a violation of article 11.0 I, While the College denies Ms Stellings was assigned work during her vacation, it argues that even if this were the case, this issue does not arise out of the SWF, which contains no assignment during vacation period, but rather arises out of article IS, the vacation al1icle. Consequently, if the complaint is that Ms Stellings was improperly assigned work during her vacation period, as a WRA, I have no jurisdiction to deal with it, as it is clearly outside article 11.01 and the workload formula agreed to by the parties, Rather, the College argues that the appropriate avenue for redress is a grievance pursuant to article 32. Period Following Return/rom Sick Leave 14, Similarly, the College submits that the SWF no longer applies in the 2.5 week period at the end of the summer semester, when Ms Stellings returned to work from sick leave. The College maintains that 1.5 weeks of that time would have been a contact teaching period for her, but as Ms StelIings was relieved from her teaching duties, that period was a non-contact teaching period for her. The College submits that in any event, the end of the teaching term is followed by one week during which grading is done and promotional meetings occur, which clearly would not be addressed on the SWF as there is no contact teaching time during that week. ] 5. The College submits that the jurisprudence is now clear that non-contact teaching periods are not to be addressed on the SWF. 16. In that regard, the College relies on the decision in Humber and OPSEU (grievances of Gene Rychlewski), November 2005, which dealt with a complaint by the grievor that he had been assigned and performed curriculum development work during the non-contact teaching period when he would have preferred to study computer programming language. 3 He argued that he should have been credited for this work on his SWF. 17. The Arbitration Board, chaired by Arbitrator Devlin, held that no SWF is required during non"teaching periods and that work performed during non-teaching periods is governed by Article 11.08, That provision states: 11.08 In keeping with the professional responsibility of the teacher, non" teaching periods are used for activities initiated by the teacher and by the College as palt of the partiesl mutual commitment to professionalism, the quality of education and professional development. 18. The Arbitration Board held, at page 24 ofthat decision: Based on the jurisprudence, it is apparent that activities undertaken during the non-teaching period at the initiative of either the College or a Professor as palt of the parties' mutual commitment to professionalism, the quality of education and professional development are generally governed by Article 11,08. In accordance with that Article, such activities are not to be recorded on a SWF. 19. The College also relied on the majority decision of an Arbitration Board chaired by Arbitrator Schiff, involving Durham College and OPSEU (two individual grievors), October 1995. As in this case, that decision dealt with the issue of whether time spent in non-teaching functions after teaching ended and before vacation, had to be included on a SWF, In that instance, the work at issue was the attendance at meetings. 20. The majority of the Arbitration Board referred to other decisions which have reached a similar result, and found that as the work was performed during a non-teaching period it was not govemed by article 11,01, but rather came within the ambit of article 11.08. Having referred to the various provisions of article 11, the Majority stated, starting at the second paragraph on page 5: From this canvass of the structure and content of the provisions making up Alticle 11 as a whole, we conclude that a professor's professional duties performed during the weeks of the academic year without contact hours are not governed by s. 11.01 F. "complementary functions" within s. 11. 01 F, as mentioned above, means solely the complementary functions listed in the third paragraph ofs. 11.01 B I for the purpose of determining "total workloadll during teaching contact weeks subject to the narrow exception set out in paragraph (ix) of s, 11.0 I D 3 (which is not in issue here), complementary functions performed during periods when there are no contact hours are governed solely by s. 11,08, Sillce 4 all of the meetings the subject of the grievances, concededly about matters falling within professional duties, were held during non-contact weeks, s. 11.01 F and the provisions regarding the Standard Workload Form have no bearing, The professorst time and effort in attending the meetings are governed under s. 11.08 by the College's exercise of discretion in calling the meetings, subject to professors' consent and to their obligation not to withhold consent unreasonably. And that is so whether or not the calling of the meetings constituted tlassign[ingr1 them and "direct(ing]>l that professors attend. 21. Consequently, the College submitted that if there is a dispute in regard to work to be performed during a non-contact teaching period it is not covered by the SWF. Rather, the applicable article is 11.08, set out above, and any resulting grievance is to be addressed pursuant to article 32 ofthe collective agreement, as set out in article 11.02A 6 (b) of the collective agreement. Ms Stellings Work Pet/ormed During Vacation 22. Ms Stellings submits that what is of primary importance is that she receive credit for work she has done, 23. Regarding the College's challenge to the time she claims for work performed during her vacation, Ms Stellings points out that at no time was she ever given time on the SWF to do the work. She indicates that while this had been discussed while the SWF was being drafted, an impasse was reached. It was on that basis the matter proceeded to the College Workload Monitoring Group and is now before me. Period Following Returnfrom Sick Leave 24. Regarding the period following her return from sick leave, Ms Stellings pointed out that no notice was given to her that her SWF was withdrawn. Consequently, she argued that the work she performed on the curriculum review after her return was performed while 5 she was still working under that SWF, at least for what she maintains was the one remaining week during which courses were taught. Ms Stellings also pointed out that it was the College's decision that she not teach the last two days of her classes, and that otherwise she would have done so. 25, Ms Stellings also pointed out that the College continues to use the revised currlculum that resulted from her efforts. DETERMINATION: Work Performed During Vacation 26. While there may be an issue regarding the amount of work that Ms Stellings performed on curriculum review, and whether she was assigned work during her vacation, there is 110 dispute that she did perform work on the curriculum review and the revision of the course outlines. 27. The difficulty with Ms Stellings' claim regarding the work she maintains she performed during the vacation period is that, as argued by the College, article 11.02A 6 (b) limits my jurisdiction as a WRA, to issues arising from a teacher's SWF, It is clear, however, that article 11.01 does not contemplate work being assigned, and therefore reflected on the SWF, during vacation. 28. Rather, I find, as did the Arbitration Board in Humber and OPSEU and the majority of the Board in Durham College and OPSEU, both referred to above, article 11.01 deals only with work assigned during contact teaching periods. As the vacation period cannot be characterized as a contact teaching period it is not governed by article 11.01. 29. Consequently, regardless of how Ms Stellings characterizes her complaint regarding having worked during vacation, it is not within my authority as a WRA to deal with her complaint, as I find it does not flow from article 11.01. 6 Period Following Retumfrom Sick Leave 30. While Ms Stellings maintains she was never advised that her SWF was being withdrawn; there is no dispute that she did not have any teaching contact time during this period; and that instead; she worked on the curriculum review. I find that the practical impact is that her SWF was no longer in effect. Consequently; regardless of whether the time at issue was one week or 2.5 weeks; for the reasons set out above, Le. that the SWF only applies to teaching contact periods; I find that I have no jurisdiction to deal with this aspect ofMs Stellings; complaint. DISPOSITION: 31. For the reasons set out above; Ms Stellings; complaint regarding her Summer 2009 SWF is dismissed. DATED AT TORONTO; THIS 9TH DAY OF FEBRUARY 20 I O. "Tania Wacyk" WR Arbitrator 7