HomeMy WebLinkAboutUnion 10-02-23
IN THE MATTER OF AN ARBITRATION
Between
FANSHAWE COLLEGE
(the "Employer")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Local 110)
(the "Union")
REGARDING STAFFING LEVELS IN THE SCHOOL OF DESIGN
GRAPHIC DESIGN PROGRAM
ARTICLE 2 - STAFFING
(GRIEVANCE NO. 2004-0010-0017)
BOARD OF ARBITRATION:
PAMELA COOPER PIC HER
CARLA ZABEK
SHERRIL MURRAY
CHAIR
EMPLOYER NOMINEE
UNION NOMINEE
APPEARANCES FOR THE COLLEGE:
Robert Atkinson -Counsel
Sheila Wilson -Employee Relations Manager
Dr. Terry Boyd -Dean, Fac. of Arts, Media and Design
APPEARANCES FOR THE UNION:
Tim Hannigan -Counsel
Daryl Bedford -Chief Steward
Gary Fordyce -Past Chief Steward
Paddy Musson -Union President
Hearings were held in London, Ontario on March 3, 2005; February 15 and 16,
June 20, December 6, 2007; April 8 and 9, September 11 and 12, October 22 and
23,2008 and January 22, April 29 and 30, May 1, September 18, September 25
and October 13, 2009.
AWARD
The Union filed a grievance dated April 13, 2004 asserting that the College has
acted in breach of article 2.02 of the collective agreement by allegedly failing to give
preference to regular full-time positions in the College's Art and Design Division, the
name of which has been revised, most recently, to the "School of Design", which is part
of the Faculty of Arts, Media and Design. The School of Design includes approximately
10 different programs, such as Graphic Design, Horticulture Technician, Fashion
Merchandising, Landscape Design and numerous others. The parties have agreed to
focus the issues by dividing the grievance according to the various programs involved.
This aspect of the grievance concerns the Graphic Design Program.
Issues and positions were modified as the hearing of this segment of the
grievance progressed. The Union asserts that as of the fall of 2004, the College had
breached article 2.02 by failing to give preference to the designation of regular full-time
positions in the Graphic Design Program. More specifically, the Union maintains that the
College breached article 2.02 by having failed to post and fill one, and arguably two, full-
time positions by the fall of 2004, but, at the latest, by the fall of 2005. The Union seeks
a declaration of breach, a direction for the posting and filling of one, jf not two, regular
full-time positions and compensation for Union dues owing, with interest.
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The Union's initial position was that, as of the fall of 2004, the College should
have filled four full-time positions in the Graphic Design Program. However, by the fall of
2005, the College had posted and filled two full-time positions. Through that process,
Mr. Tim Handelman and Ms. Lee-Ann Powley became regular full~time teachers. Up to
that point, they both had been teaching in the Graphic Design Program in either a
partial-load or part-time capacity. In response to the College's increase in its full-time
positions, the Union reduced its claim from four full-time positions to two.
Article 2.02 of the collective agreement provides as follows:
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, attainment of the program objectives, the need for
special qualifications and the market acceptability of the
programs to employers, students, and the community.
A primary area of disagreement is the College's regular use of non-full-time
teachers to deliver advanced level courses in the third and final year of the Graphic
Design Program. The College maintains that its use of non-full-time teachers to provide
these advanced courses is necessitated by its operational requirements. More
particularly, the College contends that the use of non-full-time teachers is vital to
maintaining the quality of the Graphic Design Program, to attaining the Program's
objectives, to meeting the need for specialized skills not sufficiently available among its
full-time professors and to promoting the credibility and market acceptability of the
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Program in the eyes of both its students and the industry to which the students turn for
employment following graduation.
The parties agree that the initial onus lies with the Union to establish, on a prima
facie basis, a "Body-of-Work" taught by non-full-time teachers sufficient to support one
or more full-time positions. Once such a Body"of-Work has been established, the parties
further agree that the evidentiary burden of proof shifts to the College to demonstrate
that, notwithstanding the Body-of-Work, operational requirements within the meaning of
article 2.02 existed to justify the assignment of some or all of the work to non-full-time
teachers.
The parties further have agreed to confine the Board's inquiry to a two year
period commencing with the fall semester of 2004 and ending with the completion of the
fall semester of 2006. It is from the evidence of the work assignments to non-full-time
teachers during this two year period that the parties will make their respective
submissions regarding the College's alleged breach of article 2.02.
Testimony in this matter was given on behalf of the College by Dr. Terry Boyd,
who has been the Dean of the Faculty of Arts, Media and Design since at least 2004.
Dr. Boyd stated that the Faculty includes three Schools, one of which is the School of
Design, which delivers the Graphic Design Program under review. While continuing in
his role as Dean of the Faculty, Dr. Boyd became the Acting Chair of the School of
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Design in April of 2004, following the retirement of Chair Frank Rogers. Dr. Boyd
remained Acting Chair until the fall of 2006 when Ms. Angela Bourne, from the Interior
Decorating Program, was hired to replace Mr. Rogers. Ms. Bourne vacated the position
of Chair prior to the fall of 2008, at which point Dr. Boyd, once again, assumed the role
of Acting Chair of the School of Design, pending the appointment of Ms. Bourne's
replacement.
On behalf of the Union, evidence was presented by Mr. Daryl Bedford, the chief
steward of Local 110 since September of 2008, and by Ms. Paddy Musson who has
been the President of the Faculty Union since 1984. Ms. Musson has been a professor
of sociology since 1976. She testified, primarily, to studies in which she was involved
respecting projections for staffing requirements at Fanshawe College for years which
included the period in issue in this arbitration. The Board is satisfied that staffing
predictions, while perhaps helpful to the parties in multiple ways, do not assist the Board
in determining whether in this particular grievance the College engaged in a breach of
article 2.02.
Mr. Bedford has a background in computer science and web applications. He has
been a full-time professor in the School of Information Technology in the Faculty of
Business since August of 2002. Within the School of IT, he has taught design courses.
He has never, however, taught in the Graphic Design Program. Both Mr. Bedford and
Dr. Boyd gave general evidence about the Graphic Design Program which was largely
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consistent. In addition, Mr. Bedford gave detailed evidence respecting calculations
involved in the creation of the SWFs (Standard Workload Forms) for full-time teachers,
which was not the subject of dispute by the College.
Mr. Bedford further put together the Union's alleged full-time positions,
particularly, the Union's ultimate course listings for "Position #1" and "Position #4",
which the Union alleges reasonably form full-time positions and demonstrate the
College's breach of article 2.02. Mr. Bedford assembled these course combinations for
Position #1 and Position #4 on the basis of his reading of the SWFs of full-time
professors and the course outlines for the courses taught by non-fullNtime teachers. He
was also mindful of the skill sets required to teach courses in the various subject areas
in the Graphic Design Program. Mr. Bedford, in other words, testified to the non-full-time
Body-of-Work that the Union was putting fOlWard on a prima facie basis to assert the
existence of non-full-time work that would support the creation of two full-time positions
and its allegation of a breach of article 2.02 by the College.
Mr. Bedford did not, however, testify to the operational requirements brought
fOlWard by Dr, Boyd in support of the College's use of non-full-time teachers. Mr.
Bedford acknowledged that given that he is not a member of the Faculty of Arts, Media
and Design and given that he has never been part of the Graphic Design Program, he
does not have knowledge of the operational constraints that may have determined the
actual staffing decisions made for the various course assignments in question. Although
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he was mindful of the operational requirement references in article 2.02, he
acknowledged that he did not take into account operational factors in putting together
his alleged full-time positions. Rather, he looked at the non-full-time hours taught in the
Program I the skill sets involved and ultimately grouped them into two alleged full-time
positions, Position #1 and Position #4.
A.
BACKGROUND REGARDING THE GRAPHIC DESIGN
PROGRAM:
The structure of the Graphic Design Program has a bearing on the resolution of
the grievance. The Graphic Design Program is a three year, advanced diploma
program. The year is divided into three semesters: fall, winter and summer. The
students attend two semesters each year followed by one semester off. There are two
annual intakes or starts to the Program, one in the fall and one in the winter. Year 1 of
the three year Program consists of two semesters referred to as level 1 and level 2,
respectively. Levels 1 and 2 cover introductory courses primarily focused on the four
basic subject areas of the Program. The parties described these four subject areas as
"Streams": Stream # 1 is Design; Stream #2 is Illustration; Stream #3 is Print Production
and Stream #4 the Board has designated for Interactive Design.
The second year of the Program, levels 3 and 4, offers courses that teach
intermediate skills primarily in the four Streams. The two semesters of the third and final
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year of the Program, levels 5 and 6, respectively, provide students with advanced and
mastering skills in these subject areas as well as two classes called Digital Master
Class 1 and 2. All students take all of the courses presented throughout the three years.
It is a dispute over the course assignments to non-full-time teachers in the third year of
the Program that lies at the heart of this grievance.
The organization of the Program into a scheme of two intakes per year, one in
the fall and one in the winter, impacts the scheduling of both full-time and non-full-time
teachers. There is an overlap in the course offerings from the two intakes which occurs
in the winter semester, and the winter semester only. The parties refer to this overlap as
"the Winter Spike". Because the fall-intake Program takes the summer off, the course
load of only the winter-intake Program is taught in the summer. Because the winter-
intake Program takes the fall off, it is only the course load of the fall-intake Program that
is delivered in the fall. However, in the winter semester, both the fall-intake Program and
the winter-intake Program run concurrently. The result is that in the winter semester, the
course offering is virtually double that of the other two semesters. According to Dr.
Boyd, it regularly includes an increase of 63 teaching contact hours (TCHs) over those
delivered in the fall and summer semesters.
Although the College may cover the substantial majority of summer and fall
semester courses with full-time teachers, that naturally becomes more difficult in the
winter semester given the virtual doubling of the course load. The relevant impact of the
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Winter Spike is that the College's need for non-full-time teachers rises in direct
proportion to the number of course offerings that extend beyond the teaching capacity
of the full-time professors. The College maintains that if it hired full-time teachers to
match the course load of the Winter Spike it would find itself in the untenable position of
being forced to repeatedly layoff teachers for the summer and fall semesters.
Accordingly, the College's basic approach is to employ the number of full-time
professors generally required to deliver the courses offered in the summer and fall
semesters and to draw on non-full-time teachers to meet the shortfall in full-time
teaching capacity for the Winter Spike. The Union does not particularly dispute the
College's use of non-full-time teachers to meet the increased demands of the Winter
Spike.
B.
THE BODY..OF..WORK:
As set out above, the Union's initial onus en route to establishing a breach under
article 2.02 is to set forth a Body-of-Work taught by non-full-time teachers which, on a
prima facie basis, demonstrates that there is sufficient non-full-time work to support the
addition of one or more regular full-time positions. Once such a prima facie Body-of-
Work has been confirmed, the onus shifts to the College to demonstrate that some or all
of the non-full-time hours in the prima facie Body-of-Work were necessitated by
"operational requirements". If the College verifies that operational requirements justified
some or all of the non-full-time hours, those hours would be removed from the Union's
preliminary or prima facie Body-of-Work for the calculation of whether, in the final
analysis, the Union has put forth a non-full-time Body-of-Work sufficient to establish a
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breach of article 2.02, i.e. sufficient to support the designation of one or more regular
full-time positions.
The appropriate scope of the Body-of-Work that may be relied on by the Union to
establish its prima facie case is impacted by a number of diverse factors including, for
example, (1) the length of time over which the Body-of-Work must extend, (2) the Winter
Spike (as referred to above), (3) the % semester nature of vacation coverage, (4) the
phenomenon of the "double cohort" between approximately 2003 and 2006, (5) the
question of whether the TCHs (teaching contact hours) being covered by non-full-time
teachers belong in the Body-of-Work given their nature as either "temporary" or
"permanent" (an issue that presents itself in this matter through Coordinator duties and
absences on L TO), as well as (6) the category of the non-full-time person who has been
assigned the TCHs, i.e. whether the person is part-time instead of partial-load. An
appreciation of these various factors provides necessary context for the determination
of this aspect of the grievance.
1. LENGTH OF TIME OVER WHICH THE BODY~OF~WORK MUST EXTEND:
The parties agree that a full-time position cannot be carved out of the non-full-
time workload in a single semester. It is undisputed, in other words, that even if the
Union establishes that for a single semester there was a Body-of-Work that contained
the level of TCHs for a full-time teacher, approximately 14 in this case, that would be
insufficient evidence, standing on its own, for the Union to meet its prima facie case.
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The parties agree that to be of probative value, the non-full-time Body-of-Work must be
ongoing or continuous.
The parties disagree, however, as to the length of time required to establish an
ongoing or continuous Body-of-Work. The Union asserts that one year is enough,
pointing, by analogy, to the situation relating to sessional teachers, although sessional
teachers are not used in the Graphic Design Program. Article 2.03C of the collective
agreement provides that the position of a sessional teacher, which may be assigned the
load of a regular full-time teacher, will be designated as a regular full-time position if the
College continues the sessional teacher's full-time position beyond "one full academic
year". The College, on the other hand, maintains that for an alleged Body-of-Work
taught by non-full-time teachers to be supportive of a full-time position for the purposes
of article 2.02, it must extend over a two year period, at least.
2. THE WINTER SPIKE:
The existence of the Winter Spike, as explained above, becomes relevant to an
assessment of the overall Body-of-Work that the Union must demonstrate to establish a
breach of article 2.02. What is the probative value of an increase in TCHs (teaching
contact hours) assigned to non-full-time teachers in the Winter Spike? Put differently, if
the Body-of-Work in the summer and fall semesters falls below the TCHs that are
normally carried by a full-time teacher, does it assist the Union to show a higher
average of TCHs in the winter semester? The Board is satisfied that it does not. When
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an essential feature of the Body-of-Work is that it be continuous or ongoing for at least a
year, as acknowledged by the Union, a single semester of a non-full-time Body-of-Work
of a magnitude, at least, that is typically carried by a full-time teacher would be
insufficient, in and of itself, to establish a probative non-full-time Body-of-Work for the
purposes of article 2.02.
Accordingly, in the instant matter, little turns on an increased level of TCHs
taught by non-full-time teachers during the Winter Spike if it is unrepresentative of the
continuing workload in the summer and fall semesters. For the Union to establish a
persuasive non-full-time Body-of-Work that would justify a full-time position in the instant
situation, the primary focus must be on the fall and summer semesters. It follows,
therefore, that when final calculations are made respecting the sufficiency of the
magnitude of the non-full-time Body-of-Work put forward by the Union (which is done in
Section 0, below), minimal probative weight can be placed on the non-full-time
workload in the winter semesters in 2005 and 2006. Instead, it is primarily the level of
the non-full-time TCHs in the summer and fall semesters that will establish whether
there is a continuous Body-of-Work supportive of one or more full-time positions in the
Graphic Design Program.
3. VACATION COVERAGE:
A further relevant feature impacting the calculation of the volume of the Body-of-
Work involves recognition of the general nature of vacation coverage. Typically, a full-
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time teacher is allotted 7 weeks off from teaching each year and most all of the faculty
take that time off in the summer semester. In recognition of this practice, the 14 week
summer semester is split into two 7 week segments: May and June, on the one hand,
and July and August, on the other. When a full-time teacher takes a half semester off for
vacation, another teacher, be it full-time or non-full-time, is assigned to cover the TCHs
for that half of the semester. Accordingly, when non-full-time teachers are assigned to
cover vacation in a particular semester, that coverage is typically for % the semester
only, not the full semester, unless otherwise stipulated. Accordingly, in the final
calculations of the magnitude of the non-full-time Body-of-Work in Section D, below, it is
understood, in the ordinary course, that non-full-time hours attributable to vacation
coverage are representative of only % the semester and do not accurately reflect the
level of non-full-time teaching hours throughout the full semester.
4. THE DOUBLE COHORT:
Another factor that impacted the Body-of-Work during the relevant period was the
"double cohort", which resulted in two high school classes graduating simultaneously in
the spring of 2003 and entering the University and College system in the fall of 2003.
The parties agree that the double cohort was responsible for an inflation in the normal
course load in the Graphic Design Program over the ensuing three years. The parties
attempted to remove from the evidence the inflationary impact of the double cohort,
although they could not do so entirely. The evidence reveals that the inflationary effect
of the double cohort had fully worked its way through the system by the fall of 2006. Dr.
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Boyd stated without contradiction that the scheduling of the Graphic Design Program
was "back to normal" in fall of 2006, the last semester in the stipulated relevant period.
5. THE NATURE OF THE TCHs (TEACHING CONTACT HOURS) BEING
REPLACED - WHETHER THEY ARE "TEMPORARyn OR "PERMANENT" -
COORDINATOR DUTIES AND LONG TERM DISABILITY:
A further element influencing the appropriate composition of the Body-of-Work is
the nature of the full-time TCHs that have been assigned to non-full-time teachers. In
the instant matter, this issue focuses particularly on non-full-time replacement for
reduced full-time capacity due to a full-time professor's exercise of Co-ordinator duties
or absences on LTD.
The parties agree that the Body-of-Work that may be relied upon by the Union for
the purposes of article 2.02 does not include just any hours taught by non-full-time
teachers in a given term. The parties agree that the coverage of certain types of TCHs
by non-full-time teachers is legitimate and consistent with the College's obligation under
article 2.02. They agree that these TCHs would not be appropriately included in the
non-full-time Body-of-Work available to the Union to assert a breach of article 2.02.
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The College typically turns to either partial-load or part-time teachers to fill gaps
in course load coverage that remain outstanding after full-time teachers have been
assigned to capacity following the application of workload rules and SWF calculations.
Shortfalls in the capacity of full-time teachers to cover their normal course load in the
Graphic Design Program may arise when teachers become temporarily unavailable to
carry out their full teaching loads. For example, the TCHs of full-time teachers may be
reduced if they are seconded for a semester to another program or if they have been
temporarily allotted time away from teaching for such matters as curriculum
development, professional development, new course preparation, teaching circles or the
like. In the ordinary course, the Union does not suggest that gaps or pockets of TCHs
that are created by such temporary or short term circumstances would appropriately
form part of a Body-of-Work upon which the Union could rely to assert the existence of
an ongoing full-time position that should be created by the College in compliance with
article 2.02.
The Union does argue, however, that there are other gaps or reductions in full.
time capacity leading to non-full-time coverage that are sufficiently upermanent" or
"ongoing" that they should be included in the Body-of-Work. In the context of the
Graphic Design Program, the Union maintains that in appropriate circumstances
shortfalls in full-time teaching capacity resulting from either the performance of
Coordinator duties or absences on L TO, among others, should be included in the Body-
of-Work.
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Looking first to the situation involving Coordinators, Mr. Robert Chilvers, a full-
time teacher in the Graphic Design Program, was the Coordinator of the Program
throughout the relevant period. During that time, he was assigned two fewer TCHs
(teaching contact hours) per semester in recognition of the demands of his Coordinator
obligations. Because of the ongoing nature of the Coordinator assignment, the Union
maintains that those two hours each semester should be included in the Body-of-Work
available to the Union. The College disagrees. Having regard to the determination of
other aspects of this matter, set out below, the Board is satisfied that it is unnecessary
to resolve the issue respecting the Coordinator hours in the context of the Graphic
Design Program. For the purpose of the calculations, the two TCHs that were taught by
non-full-time teachers each semester to replace the reduction in Mr. Chilver's TCHs in
light of his performance of Coordinator duties have been left in the Union's Body-of-
Work.
Another situation of disagreement lies with Long Term Disability leave. At what
point, if at all, should the replacement through a non-full-time teacher of the TCHs of a
full-time teacher on L TO leave become part of the non-full-time Body-of-Work available
to the Union in an article 2.02 grievance? With respect to the full-time professor, Ms.
Jeannie McDonnell, the parties agree on the following: that she was on STD (short term
disability) for the fall of 2004; that in the winter of 2005, she was on L TO for 50% of her
time and carried a 50% workload; that she took vacation for % of the summer of 2005;
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and that she went on L TO full-time commencing in the fall of 2005. She has remained
on full L TO since.
As indicated above, the parties have confined the Board's inquiry in this
grievance to the fall of 2004 through the fall of 2006. The Union does not suggest that
Ms. McDonnell's absence on STD for the fall of 2004 was a sufficiently continuous
absence to render it appropriate for inclusion in the Body-of-Work that would be
available to the Union. Moreover, since she was simultaneously carrying out a 50%
teaching load in the winter of 2005, Ms. McDonnell's 50% absence on L TO that
semester was not sufficiently permanent to place those L TO replacement hours into the
Union's alleged Body-of-Work.
The Board is further satisfied that replacement TCHs occurring in the first and
second semesters Ms. McDonnell went off on full-time L TO, i.e. the fall of 2005 and the
winter of 2005, would not be appropriate for inclusion in the Body-of-Work. In the
absence of evidence to the contrary, during those two semesters, her absences were
still sufficiently "temporary" because the possibility of her returning to work was still
sufficiently realistic. Subsequent to the Winter of 2006, i.e. in the summer and fall
semesters of 2006, no partial~load or part-time teachers were brought in to cover hours
related to hours Ms. McDonnell would have taught but for her absence on LTD.
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Accordingly, although it would appear appropriate that at some point the hours
relating to an ongoing absence on L TO should be included in the Body-of-Work
available to the Union for the making of its prima facie case under article 2.02, that point
was not reached by Ms. McDonnell between the fall of 2004 through the winter of 2006,
after which her hours were not replaced by the use of either partial-load or part-time
teachers. In the result, the Board has determined that L TO replacement hours for Ms.
McDonnell performed by partial-load or part-time employees during the relevant period
do not appropriately fall into the Body-of-Work available to the Union and should
therefore be removed. The calculation for that adjustment is made in Section 0, below
6. ASSIGNMENTS TO TEACHERS WORKING IN A PART-TIME CAPACITY:
Finally, the parties disagree on whether in the context of this grievance, non-full-
time hours assigned to teachers working in a part-time capacity belong in the Body-of-
Work available to the Union for the establishment of its prima facie case. In maintaining
that none of the part-time hours should be included in the Body-of-Work, the College
emphasizes that the preference for regular full-time positions stipulated in article 2.02 is
a preference expressly stated to be over partial-load teaching positions. Article 2.02
does not contain a preference over part-time teaching positions.
Pursuant to article 26, referred to in article 2.02, the definition of a partial-load
teacher, who is included in the bargaining unit, is one who teaches "more than six and
up to and including 12 hours per week on a regular basis." In contrast, part-time
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teachers, who are not included in the bargaining unit, are stated in NOTE A of article
1.01 to be "persons who teach six hours per week or less."
In its Preliminary Award in this matter dated July 29, 2005, the Board of
Arbitration came to the following conclusion respecting the inclusion of part-time hours
in the Body-of-Work that may be used by the Union to discharge its initial burden of
establishing a prima facie case of sufficient ongoing work to support the designation of a
regular fulHime position. At pp. 34-36 of its determination, the Board stated the
following:
The provisions of the agreement, when read as a
whole, reveal the intention of the parties that the part-time
employees, who are outside the bargaining unit, are at the
low end of the hierarchy. While the part-time teachers are not
in the bargaining unit, through the various terms of the
collective agreement, the parties both have recognized the
importance of their use in the staffing scheme established in
the agreement and have ensured that their use will be in
coordination with full-time, partial-load and sessional
teachers, and not in isolation from or in conflict with, them.
Given the express protection provided within the
collective agreement for the preservation of full time
positions by placing express limits, subject to operational
requirements, on the College's use of partial load and
sessional employees, this Board cannot adopt the position of
the College that the parties intended that full time positions
would have no protection from the establishment of part-time
positions which are excluded from the bargaining unit.
Canadian arbitral jurisprudence has long recognized that in
the operation of a collective agreement, effect must be given
to the scheme of job classifications provided within it. It is
well established that having agreed to the performance of
certain work by employees in a bargaining unit, it is not open
to an employer to undermine that obliaation by assigninQ the
same work outside the bargaining unit in a manner that
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conflicts with staffing priorities given to the members of the
bargainina unit.
Accordingly, given the staffing priorities set out in
article 2, in particular, as situated in the collective agreement
as a whole, and given the parties' arrangement for the
ongoing visibility of part-time hours through the various
provisions of the agreement, as discussed above, this Board
is satisfied that part-time hours may be relied upon by the
Union and considered by a board of arbitration in an article 2
grievance where the Union can establish a prima facie case
that the College has assigned hours to part-time positions in
a manner that either intentionally or unintentionally functions
to undermine the staffing scheme set out in the collective
agreement and/or erode the barqaininq unit and/or
circumvent the collective agreement.
In such circumstances, the hours of part-time
positions become available to the Union as part of the "Body
of Work" from which the Union may argue a breach of the
article 2 preference for regular full-time over partial-load or
sessional teachers, subject to operational requirements. In
seeking to demonstrate a prima facie case respecting an
alleged misuse of part-time hours, the Union may look to and
rely on the full "Body of Work".
While such inappropriate part-time assignments would
be rare, if they would occur at all, it is the conclusion of the
Board that the staffing scheme agreed to by the parties in the
collective agreement provides for an ongoing protection
against the potential for the abuse of part-time positions by
ensuring the ongoing visibility of the part-time hours and by
ensuring that an impenetrable wall is not placed around part-
time hours. The importance of avoiding the wall around part-
time hours is underscored by the College's assertion that its
use of part-time teachers is entirely unregulated by article 2
and, thus, that it may create as many part-time positions as it
wants without recourse by the Union under article 2.
[emphasis added]
Having regard to the principles set out above, the Board will include the part-time
hours in the Body-of-Work available for the Union to meet its prima facie case if, on a
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prima facie basis, it is demonstrated that their use in the College's scheduling "either
intentionally or unintentionally [functioned] to undermine the staffing scheme set out in
the collective agreement and/or erode the bargaining unit and/or circumvent the
collective agreement." Otherwise, the part-time hours will not be so included.
However, even if a prima facie case of inappropriate use of part-time hours is
established for the purposes of the Union discharging its initial onus, the alleged
inappropriate use would be negated if, with the shifting of the burden to the College, the
College is able to demonstrate that the part-time hours were assigned in furtherance of
"operational requirements" as delineated in article 2.02. Part-time hours assigned in
fulfillment of operational requirements would not be deemed to have been
inappropriately assigned, i.e. they would not be found, ultimately, to "undermine the
staffing scheme set out in the collective agreement and/or erode the bargaining unit
and/or circumvent the collective agreement."
Accordingly, even if, prima facie, it might appear that the assignment of part-time
hours is inappropriately undermining the staffing scheme, eroding the bargaining unit or
circumventing the collective agreement, such that they would appropriately be placed in
the Body-of-Work available to the Union to make out its prima facie case of a breach of
article 2,02, those part-time hours would be removed from the Body-of-Work if, with the
shifted evidentiary burden, the College establishes that the part-time hours were
assigned in furtherance of its operational requirements.
20
In the end, in the instant situation, the content or magnitude of the ultimate non-
full-time Body-of-Work upon which the Union may rely to assert its alleged breach of
article 2.02 depends on the extent to which, if any, the College is able to justify its use of
non-full-time hours through its operational requirements.
The College maintains that the assignment of most of the part-time hours in
dispute was in fulfillment of its operational requirements and, accordingly, would not
appropriately be included in the Body-of-Work even if, prima facie} they seemed to be
undermining the staffing scheme, eroding the bargaining unit or circumventing the
collective agreement. Accordingly, in the interest of expedience, the Board will assume,
without finding, that the part-time hours were appropriately included in the Body-of-Work
available to the Union for the purposes of demonstrating a prima facie case of alleged
breach of article 2.02.
7. CONCLUSION REGARDING THE BODY-OF-WORK:
Having regard to the foregoing, the Board is prepared to find that the Union has
established on a prima facie basis a non-full-time Body-of-Work of a level sufficient to
justify the creation of a full-time position. On that ground, we find that the evidentiary
onus must now shift to the College to demonstrate that a sufficient portion of this Body-
of-Work was justified by its operational requirements in order to negate a breach of
article 2.02.
21
C.
OPERATIONAL REQUIREMENTS:
1. GENERAL CONSIDERATIONS:
A primary area of disagreement between the parties in the Graphic Design
Program is the College's contention that operational requirements necessitated its
regular and ongoing assignment of non-full-time teachers to third year advanced level 5
and 6 courses delivered in the various Graphic Design subject areas of Design,
Illustration, Print Production, Interactive Design and Digital Master Class.
As Acting Chair of the School of Design, Dr. Boyd was responsible for hiring and
scheduling for the Graphic Design Program at the relevant time. Given his duties and
responsibilities as Acting Chair and given his overarching position as Dean of the
Faculty of Arts, Media and Design to which the School of Design belongs, Dr. Boyd is
uniquely placed to assess and testify to the operational needs of the Graphic Design
Program. His evidence was consistent, clear and straightforward and was not shaken
on cross-examination. Moreover, no evidence was brought which undermined or
contradicted his evidence of the Program's operational requirements.
To explain why operational requirements created a necessity for the College to
regularly bring in, on a part-time or partial-load basis, highly skilled professionals who
work full-time in the graphic design industry, Dr. Boyd testified to the impact of
numerous attributes of the Graphic Design Program that combined to create this need.
22
He emphasized, primarily, that it is a non co-op Program, that the technology and
software underpinning work in graphic design changes at a rapid rate, and that the
expertise required to teach the advanced level 5 and 6 courses is so specialized that
the College cannot fulfill its teaching requirements in the third year of its Program by
using only its full-time teachers.
a) The Non Co-op Nature of the Graphic Desiqn Program:
Dr. Boyd testified that F anshawe College is unable to offer its students a co-op
opportunity as an integral part of its Graphic Design Program. There are no co-op
semesters where the students are placed with industry experts to enable them to gain
on-the-job experience with highly skilled professionals who are working full-time in the
field. Dr. Boyd explained that London Ontario, where Fanshawe College is located, is
too small to support student co-op placements in the graphic design industry. The
difficulty for Fanshawe College, as Dr. Boyd emphasized, is that Fanshawe's Graphic
Design Program competes vigorously with other similar programs in Ontario that do
offer the co-op programs and/or internships that are generally highly valued by both
students and the industry.
To compensate for this deficit, Dr. Boyd testified, Fanshawe College has
structured the third year of its Program to simulate for students, as closely as possible,
the actual experience of working in a graphic designer's enterprise, but doing so on-site,
at Fanshawe College. To this end, Dr. Boyd stated, the College has developed a Digital
Master Class in the third year which is taught exclusively by a highly skilled expert who
23
runs his own graphic design shop. In addition, in respect of its other third year courses,
the Program supplements the full-time teaching of the level 5 and 6 courses by regularly
drawing on experts working full-time in the industry to teach these courses as well.
Dr. Boyd emphasized that bringing in experts who are working full-time in the
industry to teach the advanced level 5 and 6 courses on a partial-load or part-time basis
is vital for the Program's credibility in the eyes of both the students and the industry that
will hire them. According to Dr. Boyd, the College's regular use of experts from the field
ensures that upon graduation students are fully up to date with both industry standards
and the latest technology, a standard of achievement, he maintained, that is essential to
assuring the quality of the Program and its marketability.
b) The Impact of Rapidly ChanQinQ Technology:
Dr. Boyd further observed that the College's use of industry experts in the third
year of the Program is required by the reality that the technology in the field of graphic
design is under constant revision and improvement. He stated that for the quality and
credibility of the Program to be sustained, the courses at the third year level have to be
taught by teachers who are fully on top of the ever-changing software and other
technology which form an integral part of work in graphic design. Both Dr. Boyd and Mr.
Bedford agreed that full-time professors regularly need to update themselves to stay
abreast of the constant changes in the software packages. Dr. Boyd commented,
however, that it is the industry experts who are the ones who have optimal knowledge of
24
the technological changes in the industry because they are the ones on the "front lines"
performing the work for clients.
c) The Necessity for Specialized Skills:
Dr. Boyd stated, in addition, that the Program's need to tap non-full-time teachers
who are full-time professionals in the industry is grounded in the highly specialized
nature of its third year courses and the challenge of finding people who are sufficiently
skilled in the various subject areas of the Program to teach at the advanced levels. Dr.
Boyd testified that the Graphic Design Program does not have enough full-time teachers
who are sufficiently expert or skilled in the respective areas covered by the advanced
level courses to ensure proper delivery of the Program at the level of quality needed to
protect the Program's credibility and marketability. For this reason, the College regularly
supplements the delivery of level 5 and 6 courses by full-time professors with non-full-
time industry experts when the appropriately skilled full-time professors are unavailable
to teach the particular level 5 and 6 courses in question.
2. DIGITAL MASTER CLASS 1 (GRAF 5015), LEVEL 5 and DIGITAL MASTER
CLASS 2 (GRAF 5020). LEVEL 6:
We turn first to assess the College's use of a non-full-time person to deliver the
third year level 5 and 6 courses of Digital Master Class 1 and 2. According to Dr. Boyd,
these are the two primary courses in the Graphic Design Program that are set up to
achieve the Program's goal of simulating for students the experience of working in an
2S
actual graphic design workshop under the instruction of a fullwtime professional who, by
working full-time in the field and servicing clients, is fully up to date with industry
practices and standards. Accordingly, these two courses are taught exclusively by an
industry expert rather than a full-time member of the faculty. Dr. Boyd noted that the
term "master class" is a standard phrase understood in the industry to indicate that the
class is taught by an expert working in the industry.
Dr. Boyd stated that Mr. Max Devries, who operates his own graphic design
shop, has been brought in to teach these two classes for years. Dr. Boyd observed that
Mr. Devries is highly skilled in the use of the pixel rendering software, Z Brush, which,
according to Dr. Boyd, is a particularly advanced and sophisticated tool used for
producing 2D and 3D modeling, among other products. Dr. Boyd highlighted that
through the creation of 3D modeling, a graphic designer is able to actually demonstrate
a product to the client.
Dr. Boyd commented that in the Digital Master Classes 1 and 2, the students
undertake design tasks using Z Brush software. They create professional level
documents and produce design projects of basic rendering as well as 2D and 3D
models. In addition, they create portfolios demonstrating their ability to perform a variety
of specialized skills using Z Brush software. Because their work is done under the
professional guidance of an expert in Z Brush who is fully current in the industry, Dr.
Boyd observed, the College and students have the confidence that their portfolios are in
26
full compliance with updated industry standards, a level of achievement that Dr. Boyd
stressed is essential to the credibility of the Program.
The evidence revealed that for one semester outside the relevant time period,
the fall of 2007, Digital Master Class 1 was assigned to Ms. Powley, a full-time faculty
member, by the then Chair, Ms. Angela Bourne, who has since left the post. Dr. Boyd
was not aware of the assignment of this course to a full-time professor and stated that it
was an aberrant departure from the philosophy of the Program which dictates that these
two Master Classes be taught by an industry expert working full-time in the field.
Dr. Boyd's testimony respecting the ramification of the absence of a co-op
opportunity from Fanshawe's Graphic Design Program and the resulting need to bring in
a full-time expert in industry to teach the two Master Classes in order to simulate for
students, as closely as possible, the actual experience of working in a professional
graphic design shop in the industry was uncontested.
Equally uncontradicted by the evidence was Dr. Boyd's assertion that given the
non co-op nature of the Program, having an industry expert teach the two Master
Classes, as opposed to a full-time teacher in the Program, is essential to protecting the
credibility and marketability of the Program. Dr. Boyd maintained, without dispute, that it
is by having students work in these Master Classes under the direct guidance of an
27
industry expert with the skills to ensure that the students' work is in compliance with
industry standards and based on current knowledge of the ever-changing, highly
sophisticated software that confidence in the Program is generated both in the students,
who have to decide which of a number of competing such Programs in the province
they will attend, and in the industry to which the students will look for employment upon
graduation.
Dr. Boyd further asserted, without contradiction, that the simulated experience is
also the means by which the Graphic Design Program is able to meet its own Program
objectives of ensuring that its students upon graduation are fully up to date with industry
standards and are knowledgeable in the latest technology.
As set out above, Mr. Bedford, who testified to the Union's alleged non-full-time
Body-of-Work, had no actual experience in the workings of the Graphic Design
Program. He stated that he did not have knowledge of the actual operational
requirements that went into the actual staffing assignments. Accordingly, he gave
minimal evidence respecting operational requirements for the Graphic Design Program.
No one testifying for the Union seriously challenged Dr. Boyd's assessment of the
operational requirements at play in his course assignments. Dr. Boyd, on the other
hand, was well situated to testify to the operational requirements since he was the Dean
of the Faculty of Arts, Media and Design, which included within it the School of Graphic
Design, which delivered the Graphic Design Program. Moreover, he was the acting
28
Chair of the School of Design throughout much of the specific period under review and
was responsible for staffing course assignments. In this dual capacity, it was his
responsibility to be knowledgeable about the operational requirements. His evidence in
this regard was clear and convincing and largely unchallenged either in cross
examination or through the introduction of other evidence. Accordingly, the Board has
determined that Dr. Boyd's evidence respecting the operational requirements carries
substantial credibility and persuasion.
Moreover, Dr. Boyd's evidence that there are no full-time faculty with the
specialized skills sufficient to teach these two courses is accepted by the Board. The
one example of a full-time teacher being assigned the level 5 course for one semester
in 2007 was, for the reasons set out above, of no probative value. Additionally, the
Board accepts Dr. Boyd's uncontradicted assertion that for these two Digital Master
Classes, if the non-full-time expert from the industry were to move into the position of a
regular full-time teacher at the School, he or she would very quickly lose the ucurrent in
the industry" connection required to teach these courses, Le. the very qualities in the
teacher that are necessary for these two courses to meet the operational requirements
respecting the quality and credibility of the Graphic Design Program. That arrangement
creates, in effect, the advantages of a co-op or internship program which the College
cannot otherwise attain.
29
Accordingly, for the reasons set out, the Board concludes that the assignment of
Digital Master Classes 1 and 2 to an industry expert working full-time in the field was
necessitated by operational requirements involving the need to ensure the quality of the
Graphic Design Program, to meet the objectives of the Graphic Design Program, to
obtain the specialized skills necessary to deliver the two courses and, further, to assure
the credibility and market acceptability of the Graphic Design Program in the eyes of
students and their future industry employers.
As a result, the Board further concludes that the decision of the College to staff
its level 5 and 6 Master Classes 1 and 2 in the third year of its Graphic Design Program
with a professional working full-time in the industry, be it someone utilized on a part-time
or partial load basis, does not undermine the staffing scheme contemplated by the
collective agreement, erode the bargaining unit or circumvent the collective agreement.
In reaching its decision, the Board is mindful that the College has restricted this
level of exclusive non-full-time coverage to its Master Classes 1 and 2 at levels 5 and 6.
By so doing, the Board is satisfied that the College has duly balanced the dictates of the
collective agreement's article 2.02 preference for regular full-time positions over partial-
load teachers and the counterbalancing need recognized by article 2.02 for the College
to meet its operational requirements.
30
In the result, the Board finds that the hours assigned on a non-full-time basis for
Digital Master Classes 1 and 2 do not appropriately fall within the Body-of-Work upon
which the Union may rely to assert an alleged breach by the College of article 2.02.
Calculations for removing these hours from the Union's prima facie Body-of-Work are
set out below in Section D, "Final Calculations of the Union's Body-of-Work".
3. DIGITAL ILLUSTRATION ADVANCED 1 (GRAF 6013), LEVEL 6. and
DIGITAL ILLUSTRATION ADVANCED 2 (GRAF 6018), LEVEL 6.
STREAM #2
and
DIGITAL APPLICATIONS 6 (GRAF 6014), LEVEL 6. and
DIGITAL APPLICATIONS 6 (GRAF 6019). LEVEL 6
STREAM #3:
In contrast to the situation respecting the delivery of Digital Master Classes 1 and
2, which the College covered exclusively with an industry expert working in either a
partial-load or part-time basis, for Digital Illustration Advanced 1 and 2 and Digital
Applications 5 and 6, the College used a combination of full-time professors and non-
full-time teachers. The College contends that its targeted use of non-full-time teachers
in these level 5 and 6 courses to supplement the delivery of these courses by full-time
teachers is necessitated by reason of its operational requirements. The Union
disagrees.
31
To assess the merits of the dispute between the parties respecting the College's
targeted use of non-full~time teachers at levels 5 and 6 in Streams #2 and #3 during the
relevant period, it is helpful to consider further background concerning the Graphic
Design Program which lies behind the College's decisions relating to the mixed use of
full-time professors and industry experts to teach the level 5 and 6 courses in dispute.
This background includes (a) the scheduling practice for the Graphic Design Program;
(b) the goal of obtaining optimal skill-set matches and the resulting "cascading effect";
(c) the difficulty in obtaining optimal skill~set matches for the level 5 and 6 courses; (d)
the basic four subject Streams in the Program; and (e) the qualification of full-time
teachers to teach across the four Streams. With this background, the Board is better
positioned to assess the College's regular use of non-full-time teachers to supplement
its full-time professors in the level 5 and 6 courses in Streams # 2 and # 3.
a) The Scheduling Practice in the Graphic Design Program;
Dr. Boyd explained the scheduling practice he followed for the Graphic Design
Program as Chair of the School of Design and the person primarily responsible for the
course assignments during the relevant period between 2004 and 2006. His initial step
was to assign the full~time professors their full load of teaching contact hours (TCHs).
On average, a full-time teacher in this Program carries 14 TCHs. However, as noted
above, there are regularly various legitimate reasons why a full~time teacher in a given
semester may not be able to carry his or her typical 14 TCHs. Circumstances that might
32
typically decrease a full-time professor's ability to carry a normal full load of TCHs would
include such factors as being the Coordinator of the Program, teaching a course for the
first time, being a newly hired full-time teacher, pursuing professional development or
curriculum development, being on STO, being on vacation, being on special
assignment, being on secondment or one of countless other possibilities that are
officially worked into and accounted for on each full-time teacher's SWF, which
establishes each teacher's TCH capacity for the semester.
When one full-time teacher has a reduced TCH capacity, it typically leaves gaps
in course coverage that need to be filled by others. Dr. Boyd indicated that he first looks
to the capacity of other full-time professors to determine if they still have space in their
allotted TCHs to cover the gaps. It is at this stage that the controversy between the
Union and the College starts to emerge.
It is undisputed by the Union that, virtually inevitably, after full-time teachers are
assigned to capacity, there are still hours left over that legitimately must be assigned on
a non-full-time basis to enable the College to deliver its Program. The Union does not
dispute that, as a general rule, as long as the conditions are appropriate, it is within the
intention of the staffing scheme in the collective agreement that these leftover hours
may be covered by partial-load or part-time teachers. However, the Union maintains
that the College's practice of regularly assigning the level 5 and 6 courses in dispute on
33
a non-full-time basis to full-time professionals in the industry goes beyond the legitimate
assignment of non-full-time hours.
b) The Goal of ObtaininQ Optimal Skill-Set Matches and the Resulting
"Cascading Effect":
Dr. Boyd stated that as he assigns teachers to their schedules, he is intent on
finding the best match between a professor's skill-set and the requirements of the
courses that need to be covered. Dr. Boyd stated that if a full-time professor is on
special assignment, for example, and unable to teach his or her full teaching load for a
semester, he will not necessarily bring in a non-full-time teacher to cover the very
course that that full-time teacher is unable to deliver. Rather, Dr. Boyd explained, he will
"juggle" or move courses around to obtain the best skill-set matches possible
throughout the Program as a whole, from level 1 through level 6, in order to meet the
overall goals of the Program, including the particular goals of the third year of the
Program, as detailed above.
To describe more precisely, if, for example, all full-time professors have been
scheduled to capacity, but one full-time teacher has a reduced TCH capacity in a given
semester and, therefore, is unable to teach a course he or she otherwise would have
taught, "course A in level 2", let us say, the need for non-full-time coverage is created.
Instead of bringing in a non-full-time teacher to teach "course A in level 2", however, the
34
College, in order to maximize the best skill matches throughout the Program, may move
another full-time teacher to teach "course A in level 2" and bring in a partial-Ioad/part-
time teacher to meet the shortfall that was transferred to a different place in the
schedule by moving full-time professors around. This "juggling" results in what Dr. Boyd
referred to as the "cascading effect",
c) The Difficulty in Obtaining Optimal Skill-Set Matches for the Level 5 and 6
Courses:
Of importance to this dispute, Dr. Boyd testified that due to the highly complex
and specialized content of some of the advanced level 5 and 6 courses in the final year
of the Program, it is frequently difficult to find a skill-set from among available full-time
professors that can adequately match the skill:-set required for the particular advanced
level 5 or 6 courses that may be in issue. As a general rule, Dr. Boyd stated, the full-
time teachers have the skill sets to teach a broader variety of courses in the first and
second years of the Program, levels 1 through 4, than in the third year of the Program,
levels 5 and 6.
Dr. Boyd testified that it is through the level 5 and 6 courses that comprise the
third and final year of the Program that the students develop their most advanced skills
and knowledge base. Dr. Boyd noted that the first and second year courses, consisting
of levels 1 through 4, impart the fundamental principles in the four basic Streams or
35
subject areas. He observed that the principles taught in levels 1 through 4 do not
change dramatically over time. In contrast, he testified, it is in the third year that
students are taught the more specialized skills involved in using an expanse of
sophisticated software including Corel Draw, Adobe Photoshop, Z Brush, Quark
Express, Adobe Illustrator and others. As noted above, these technologies are under
constant revision. Dr. Boyd commented that because a primary goal of the Graphic
Design Program is to prepare students to be able to work with each of these software
programs at an advanced level when they graduate and to be "dead-onH with the
industry standards, it is particularly important for them to be taught by people who are
fully and continuously up to date with industry requirements and the latest technology in
the various areas of graphic design.
It is far easier, Dr. Boyd indicated, to find skill-set matches among the full-time
teachers to meet skill-set requirements for the courses in the various Streams in the first
and second years of the Program, i.e. for the courses given in levels 1 through 4.
Accordingly, in application of the cascading effect, when the need for non-full-time
coverage is created somewhere in the schedule, Dr. Boyd may juggle the course
assignments among full-time teachers, particularly in levels 1 through 4, matching skill-
set requirements, and focus the requirement for non-full-time coverage up to the level 5
and 6 courses. To meet that re-Iocated shortfall in full-time teaching capacity, he would
then bring in an industry expert to deliver the level 5 or 6 course, not only because it
ensures the specialized skills required to deliver the level 5 or 6 course but also
because, in Dr. Boyd's view, it meets additional operational requirements of securing
36
the market acceptability of the Program in the eyes of the industry and the credibility of
the Program in the eyes of current and prospective students.
d) The Basic Four "Streams" in the Graphic Design Program:
The evidence of both the Union, through Chief Steward Daryl Bedford, and the
College, through Dr. Boyd, reveals that the major portion of the Program may be
broadly divided into four subject areas, referred to by the parties as "Streams". They are
Stream #1 - Design; Stream #2 - Illustration; Stream #3 - Print Production and what the
Board has referred to as Stream #4 - Interactive Design.
The third year, level 5 and 6 courses in the four Streams are set out below::
Stream #1- Design: Level 5 - Design Advanced 1 (GRAF5012)
Level 6 - Design Advanced 2 (GRAF5017);
Stream #2 -,Illustration: Level 5 - Digital Illustration Advanced 1 (GRAF5013)
Level 6 - Digital Illustration Advanced 2 (GRAF5018);
Stream #3 - Print Production: Level 5 - Digital Applications 5 (GRAF5014)
Level 6 - Digital Applications 6 (GRAF5019);
Stream #4 - Interactive Design: Level 5 - Interactive Design 5 (GRAF5016)
Level 6 -Interactive Design 6 (GRAF5021).
37
e) The Qualification of Full-Time Teachers to Teach Across the Four Streams:
There is a difference between the parties concerning the capacity of the full~time
professors to teach multiple level 5 and 6 courses "across" the four Streams of Design,
Illustration, Print Production and Interactive Design. Dr. Boyd asserted that there is not
a single full-time faculty member who can teach in every Stream at virtually every level.
He further maintained that, in general, the maximum number of Streams in which a
single teacher can competently teach would be two. He quickly emphasized, however,
that even if a teacher is competent to teach across two Streams in levels 1 through 4,
i.e. in the first and second year courses, that same teacher would almost inevitably not
be sufficiently competent to teach the third year, level 5 and 6 courses across the same
two Streams. Dr. Boyd contends, in other words, that the knowledge and skills required
for the level 5 and 6 courses are so specialized and demanding that it is almost
inevitable that a teacher would be competent to teach in only one Stream at levels 5
and 6 even if that teacher is sufficiently accomplished to teach in two Streams for levels
1 through 4.
Dr. Boyd readily and immediately acknowledged that currently in the Program
there is one exception to that rule, which exception he asserted is highly unique and
extraordinary. He stated that Mr. Robert Chilvers, who was the Coordinator during the
relevant time, is qualified to teach levels 5 and 6 in both Stream #1, Design, and Stream
#2, Illustration. He stressed, however, that the skill"set required at the advanced levels
38
is so specialized that it is very unusual to find one person, full-time or non-full-time, who
is an expert at the top end of any two of the four basic Streams.
While the Union presented evidence of full-time teachers being able to teach
across some of the Streams at the lower levels, it did not present credible evidence of
any full-time professor, apart from Mr. Chilvers, who was qualified to teach across
Streams #1 though #4 at levels 5 and 6. Mr. Bedford testified that someone should be
able to teach both the Master Class 1, level 5, (5015) and Digital Applications 5 (5014)
but gave no example of anyone able to teach both. Moreover, given the Board's
conclusion that the assignment of the Master Classes exclusively to a non-full-time
teacher was in furtherance of the College's operational requirements, this particular
combination of level 5 courses would not be part of an appropriate course assignment
for a full-time professor in the Program.
Among the full-time teachers at the relevant time, Dr. Boyd detailed their
respective areas of expertise. As noted, he stated that Robert Chilvers is an expert in
Stream #1, Design, and Stream #2, Illustration. He was able to teach level 5 and 6
courses in each of these Streams. Lee-Ann Sanford Powlev, who became full-time in
the fall of 2005, was qualified to teach at the advanced levels in Stream #1, Design. The
Board accepts Dr. Boyd's evidence that she was not qualified to teach at the upper level
of the other Streams. Moreover, as determined above, the Board accepts Dr. Boyd's
uncontradicted evidence that her assignment to Digital Master Class 1 in 2007 was an
39
aberration and not a reflection of her ability to teach in more than one Stream at the
third year advanced level. Tony Paul, Dr. Boyd's evidence reveals, was qualified to
teach at levels 5 and 6 in Stream #3, Print Production. The Board accepts Dr. Boyd's
uncontradicted evidence that he was unable to teach at the advanced third year levels
in any other Stream. Tim Handelman, Dr. Boyd's evidence establishes, was able to
teach levels 5 and 6 in Stream #4, Interactive Design. The Board accepts Dr. Boyd's
uncontradicted evidence that he was unable to teach levels 5 and 6 in any other
Stream. Dr. Boyd stated that Mike Robson was in the interactive field along with Mr.
Handelman. He commented, though, that he does not have Mr. Haldelman's strong
design background and, therefore, is more limited in scope.
Accordingly, there were two full-time professors qualified to teach level 5 and 6 in
Stream #1, Design: Mr. Chilvers and Ms. Powley. There was one full-time teacher
qualified to teach level 5 and 6 in Stream #2, Illustration: Mr. Chilvers. There was one
full-time teacher qualified to teach level 5 and 6 in Stream #3, Print Production: Mr.
Paul. Finally, there was one, or possibly two, full-time teachers qualified to teach level 5
and 6 in Stream # 4, Interactive Design: Mr. Handelman and possibly Mr. Robson,
though the evidence of Mr. Robson's capacity to do so is less than clear.
Accordingly, and of importance to the resolution of this matter, the Board
concludes on the evidence that if the full-time professor who was qualified to teach at
the top end of a particular Stream was unavailable in a given semester to cover all of
40
the level 5 or 6 level courses being offered in that Stream in that semester, the School
was required, legitimately, to look outside its full-time complement of professors to
obtain the skill-set required to match the skill-set needed to deliver the outstanding level
5 and/or level 6 courses in that particular Stream.
Respecting the non-full-time coverage for Stream #2 and Stream #3 during the
period in question, from the fall of 2005 through the fall of 2006, there were two non-full-
time teachers who were consistently called upon to deliver the level 5 and 6 courses in
the respective Streams: Ms. J.M. Grieve and Mr. G. Weibe. Just as with the full-time
teachers, each had his or her area of specialty. Ms. Grieve was an industry expert in
Stream #2, Illustration, and was the one consistently assigned to cover the Program's
non-full-time requirements at level 5 or 6 in Digital Illustration. Ms. Grieve was not hired
to cover level 5 or 6 courses in any Stream other than Stream #2. Similarly specialized,
Mr. Weibe was an industry expert in Stream # 3, Print Production, the Stream for which
Mr. Paul was qualified among the full-time teachers. Mr. Weibe was not hired to cover
level 5 or 6 courses in any Stream other than Stream # 3.
During the relevant period] in respect of the courses under review, no non-full-
time teachers were brought in to cover the level 5 and 6 courses in Stream #1, Design,
the Stream in respect of which there were two full-time teachers, Mr. Chilvers and Ms.
Powley, with the qualifications necessary to teach at the highest levels. Similarly, in the
41
courses relied on by the Union to constitute its Body-of-Work, no non-full-time teachers
were brought in to cover the level 5 or 6 courses in Stream #4.
4. THE COllEGE'S DECISION REGARDING ITS USE OF NON-FUll-TIME
TEACHERS IN STREAM #2
for
DIGITAL IllUSTRATION ADVANCED 1 (GRAF 5013), lEVEL 5.
and
DIGITAL IllUSTRATION ADVANCED 2 (GRAF 5018). lEVEL 6:
The rationale for the College's need to supplement the coverage of level 5 and
level 6 courses in Stream #2 emerges from the evidence. Dr. Boyd testified that Mr.
Chilvers normally teaches level 5 (GRAF5013) and 6 (GRAF5018) in Stream #2,
Illustration. However, during the relevant period, he was the Coordinator of the
Program. His TCHs were regularly reduced, therefore, by two every semester.
Moreover, he had a further reduction in teaching capacity for curriculum development in
the fall of 2004 and the fall of 2005. He also took vacation in the summers. Accordingly,
during the relevant period, Mr. Chilvers' available TCHs were consistently reduced.
Having carefully evaluated the evidence and submissions respecting the
specialized skills required to teach at the top end of each of the four Streams, the Board
has determined that it was not a misuse of non-full-time hours for Dr. Boyd to implement
a cascading effect by adjusting the location of gaps that could not be covered by full-
time faculty in order to achieve the optimal skill-set match required to deliver the
42
Program's course load in its entirety, including, in particular, the third year of its
Program.
For the College to implement the cascading effect and focus the need for non-
full-time hours in the third year, when non-full-time coverage was going to be needed
somewhere in levels 1 through 6, was, the Board finds, in furtherance of its operational
requirements. The Board is satisfied that directing its need for non-full-time coverage to
the level 5 and 6 courses, as opposed to levels 1 through 4, was required to obtain the
necessary specialized skills in level 5 and 6 to fulfill the Program's objectives of
preparing the students upon graduation to be fully current in the industry standards and
knowledgeable in the latest technology relevant to that Stream. No full-time teacher
other than Mr. Chilvers had the qualifications and skill-set required to do that at the top
end of Stream #2 and, as indicated above, Mr. Chilvers' teaching capacity was
consistently reduced during the relevant period. His TCH availability was insufficient to
fully cover these courses. Because no other full-time teacher had the skill set required
to cover the courses at the top end of Stream #2 that were not covered by Mr. Chilvers,
a non-full-time industry expert was required in order to provide the necessary
specialized skills to deliver these courses.
In addition, the Board is further satisfied that the practice of focusing the
College's need for non-full-time coverage on the level 5 and 6 courses was justified in
order fulfill its operational requirements in light of the reality that Fanshawe's Graphic
43
Design Program is a non co-op Program and is in vigorous competition with other
graphic design programs that are able to offer either co-op or internship opportunities as
an integral part of their programs. Given the non co-op nature of the Graphic Design
Program, the College's practice of regularly tapping industry experts for top end courses
when the need for non-full-time coverage had arisen somewhere in the schedule was
an appropriate and necessary response to enable the College to meet the Program's
goals, to ensure the overall quality of the Program and to promote the credibility and
market acceptability of the Program in the eyes of both the students and the industry.
The Board observes that the College's practice in this regard reflects a balancing
between, on the one hand, protecting the staffing scheme set out in the collective
agreement with its preference for full-time teachers and, on the other hand, meeting its
operational requirements. The College had at least one full-time teacher who was a
highly skilled specialist and competent to teach at the advanced levels in each of the
fours Streams of Design, Illustration, Print Production and Interactive Design. At the
same time, when it had a need for non-full-time coverage somewhere in the schedule, it
focused the need on the advanced level 5 and 6 courses, where the Program's goals
required the specialized skills of professionals working full-time in the industry and the
enhancement of the credibility and marketability of the Program in the eyes of students
and industry by maximizing the use of expert professionals working full-time in graphic
design.
44
Accordingly, the Board concludes that the hours that were taught by Ms. Grieve
in levels 5 (GRAF5013) and 6 (GRAF5018), including those that were part time, did not
function to undermine the collective agreement, to erode the bargaining unit or to thwart
the staffing scheme set out in the collective agreement. They were scheduled, the
Board finds, in direct fulfillment of the operational requirements of the Graphic Design
Program and are not appropriate for inclusion in the Body-of-Work upon which the
Union may seek to rely to assert a breach of article 2.02.
5. THE COLLEGE'S DECISION REGARDING ITS USE OF NON-FULL-TIME
TEACHERS IN STREAM #3
for
DIGITAL APPLICATIONS 5 (GRAF 5014), LEVEL 5,
and
DIGITAL APPLICATIONS 6 (GRAF 5019), LEVEL 6:
The Board draws the same conclusion for the same reasons for the hours taught
by Mr. Weibe in Stream #3, Print Production. The Board is satisfied that the College
scheduled those hours in order to ensure that a person with the required skill-set was
teaching the level 5 and 6 courses in Stream #3, Print Production. Apart from Mr. Paul,
there was no full-time professor who had the advanced skill-set required to teach Digital
Applications 5 and 6. During the relevant period, there were times when Mr. Paul's
teaching capacity was reduced by curriculum development. Naturally, he also took
vacation. The Board is fully satisfied that turning to Mr. Weibe to cover third year
advanced the level 5 and 6 courses in Stream #3 was in furtherance of the College's
need to meet its operational requirements in respect of ensuring the quality of the
Program, of securing the specialized skills needed to properly teach the courses in
4S
question and of assuring the market acceptability of the Program in the eyes of the
students and the industry.
Accordingly, the non-full-time hours assigned to Mr. Weibe during the relevant
period to cover the level 5 and 6 courses in Stream #3, Print Production, which were
Digital Applications 5 (GRAF 5014) and Digital Applications 6 (GRAF 5019) are not
appropriately included in the Body-of-Work available to the Union to assert a breach of
article 2.02.
D.
FINAL CALCULATIONS OF THE UNION'S BODYMOFMWORK:
We turn to the fundamental issue of whether the College has breached article
2,02 of the collective agreement. Applying the Board's findings regarding both
operational requirements and long term disability to the calculation of the non-full-time
teaching hours in the Union's Body-of-Work, has the Union established that the College
breached its article 2.02 obligation to give preference to regular full-time positions over
partial load teaching positions?
The Union put forward a prima facie Body-of-Work consisting of two groupings of
courses divided into what the Union referred to as "Position #1" and "Position #4". The
46
Union asserts that each of these two positions reflects a Body-of-Work that embodies a
sufficient level of TCHs that were being assigned to non-full-time teachers to support a
breach of article 2.02. The Union further maintains that if neither of the two alleged full-
time positions, standing on its own, has sufficient hours to support a breach of article
2.02, the TCHs from Positions #1 and #4 should be combined to justify one full-time
position. The College disputes that combining the two positions would be appropriate.
Based on the Board's findings, the following hours must be removed from the
Union's prima facie Body-of-Work between the fall of 2004 through the fall of 2006 in
either or both of the alleged Position #1 and Position #4:
1. The hours attributed to coverage for Ms. McDonnell when
she was absent on either STD or L TD;
2. The hours taught by Mr. Devries in either a partial-load or
part-time capacity to provide either the level 5 Digital Master
Class 1 (GRAF5015) or the level 6 Digital Master Class 2
(GRAF5020);
3. The hours taught by Ms. Grieve in either a partial-load or
part-time capacity in Stream #2, for either the level 5 course,
Digital Illustration Advanced 1 (GRAF5013) or the level 6
course, Digital Illustration Advanced 2 (GRAF5018); and,
4. The hours taught by Mr. Weibe to deliver either the level 5
course, Digital Applications 5 (GRAF5014), or the level 6
course, Digital Applications 6 (GRAF5019), in Stream # 3,
Print Production.
A summary of the TCHs remaining in Position #1 and Position #4 after the
removal of the above noted hours, as well as a calculation of the hours remaining in the
47
combination of Position #1 and Position #4 once the above noted hours have been
removed, are set out below:
POSITION #1 POSITION #1 COMBINED
Total hours
Fall 14-10=4hrs 15 - 9 = 6 hrs 4+6=10hrs
2004 [removed: Weibe 4 hrs; [removed: McD 3
Devries 6 hrsl hrs; Grieve 6 hrsl
Winter Winter Spike - not
2005 sufficiently probative to
support continuous full-
time position
Summer 14 - 2 :::: 12 hrs 6 - 3 :::: 3 hrs 12 + 3 = 15 hrs
2005 [removed: Weibe 2 hrs] [removed: Devries 3 [note: 6 of the
hrs] 12 hrs were
only for % the
semester due
to vacationl
Fall 16 - 6 :::: 10 hrs 12-12=Ohrs 10 + 0:::: 10 hrs
2005 [removed: Weibe 6 h rs] [removed: Devries 6
hrs; Grieve 6 hrs]
Winter Winter Spike - not
2006 sufficiently probative to
support continuous f-t
position
Summer 15 - 10 :::: 5 hrs 16 - 6 :::: 1 0 h rs 5+10=15hrs
2006 [removed: Weibe 4 hrs; [removed: Grieve 6 [note: 3 hrs
Devries 6 hrs] hrs] were for only
% semester
due to vac.'
Fall 16 - 10 = 6 hrs 8 - 6:::: 2 hrs 6 + 2 :::: 8 hrs
2006 [removed: Devries 6 [removed: Grieve 6
hrs; Weibe 4 hrs] hrs]
To summarize, after removing the hours itemized above respecting the level 5
and 6 courses taught by Mr. Devries, Mr. Weibe and Ms. Grieve, as well as the hours
relating to the STDIL TD absences of Ms. McDonnell, and being mindful of avoiding
48
double counting in the event of overlap, the hours assigned to non-full-time persons in
the two positions through the relevant period are as follows:
POSITION #1 POSITION #1 COMBINED
Fall 4 6 10
2004
Winter Winter Spike Winter Spike
2005
Summer 12 3 15*
2005 {*note: 6 hrs of the 12
were for only % the
semester due to
vacationl
Fall 10 0 10
2005
Winter Winter Spike Winter Spike
2006
Summer 5 10 15*
2006 {*note: 3 hrs of
the10 were for only
% the semester due
to vacation 1
Fall 6 2 8
2006
Respecting the hours remaining in the Body-of-Work after the removal of the
courses itemized above, the Board will assume, without finding, that they would be
appropriately included in the Body-of-Work upon which the Union may rely and that the
skill set required would appropriately combine to form a position. The accuracy of both
of these assumptions is denied by the College.
Given that the average TCHs for a full-time position in the Graphic Design
Program is 14, it is readily apparent that there are not enough hours in Position #1,
49
standing on its own, or Position #4, standing on its own, to support a full time position:
In Position #1, the TCHs for the relevant period are fall 2004 : 4; summer 2005 : 12; fall
2005 : 10; summer 2006 : 5, and fall 2006 : 6. In Position #4, the TCHs are fall 2004 :
6; summer 2005 : 3; fall 2005 : 0; summer 2006: 10 and fall 2006 : 2.
Moreover, even if the hours remaining in Positions #1 and #4 were combined to
form one Body-of-Work, something to which the College objects, it is clear that there still
would have been insufficient non-full-time work available during the relevant period to
demonstrate that the College had breached its obligation under article 2.02 to give
preference to regular full-time positions over partial-load teaching positions.
As set out above, the parties agree that the Body-of-Work of a level sufficient to
support a full-time position must be sustainable over a period of time. However, whether
one year is taken as the required length of time, as asserted by the Union, or whether a
two year span is appropriate, as claimed by the College, the Union has not established
a Body-of-Work of sufficient magnitude for a sufficient length of time to demonstrate a
breach of article 2.02.
The average TCHs for a full-time teacher in the Graphic Arts Program is 14. A
level of 14 TCHs in one semester, like the winter semester, which has the Winter Spike,
is insufficient. In fall of 2004, the fall of 2005 and the fall of 2006, there were,
50
respectively 10 hours, 10 hours and 8 hours remaining in a combination of Position#1
and Position #4. This is decidedly too low to sustain an ongoing full-time position.
Moreover, even in the summer of 2005 and the summer of 2006, where there were 15
hours, that level was for only % the summer semester and is not a true 15 hours for the
semester as a whole. In the summer of 2005, for the first half of the semester, there
were only 9 hours. Similarly, in the summer of 2006, for the second half of the semester,
there were 12 hours. Accordingly, looking at either a one year span or a two year span,
the Union has failed to demonstrate a non-full-time Body-of-Work of sufficient quantity
to establish a breach of article 2.02 or to justify the posting and filling of a full-time
position.
Moreover, Dr. Boyd testified that the course load set out in the fall of 2006 is
particularly significant because it represents both a post double cohort stabilization and
the effect of having hired two new full-time teachers in the fall of 2005. As evident by fall
of 2006, once the full-time teachers had been scheduled to capacity, there were only 8
hours left to be assigned to non-full-time teachers, which is clearly not enough to
support a full-time position.
E.
CONCLUSION:
In the result, for the reasons set out, the College has established that its
assignment of non-full-time hours to deliver the level 5 and 6 courses included in the
Union's Body-of-Work comprised of Position # 1 and Position # 4 from the fall 2004
51
through the fall 2006 was in furtherance of its operational requirements. Accordingly,
those hours, whether partial load or part-time, were not an inappropriate use of non-full-
time hours and were not in conflict with the College's obligation under article 2.02.
Accordingly, they do not belong in the Body-of-Work upon which the Union may rely to
assert its alleged breach of article 2.02.
Following their removal, as well as the removal of the hours related to Ms.
McDonnell's L TO during the relevant period, as set out above, the Board has
determined that the non-full-time Body-of-Work remaining in Position # 1 and Position #
4, standing alone or in combination, does not establish a Body-of-Work sufficient to
support a full-time position.
In view of the conclusion set out above, it is not necessary for the Board to
determine the question of the Coordinator hours and whether they should be included in
the Body-of-Work. For the purposes of the calculations, the non-full-time replacement
TCHs by virtue of the performance of Coordinator duties have been left in the Union's
Body-of-Work. Even with the inclusion of those disputed hours, for the reasons set out
above, the magnitude of the Body-of-Work is not sufficient to support a full-time
position. Nor has the Board determined at what point the hours of a teacher on L TO
should be included in the Body-of-Work and available to the Union in an article 2.02
complaint. It was evident, for the reasons set out, that that point had not been reached
52
for Ms. McDonnell when the College was still assigning non-full-time teachers in
replacement of her absences.
Accordingly, for the reasons set out, the Board finds that in respect of the
Graphic Design Program the College did not act in breach of its article 2.02 duty to give
preference to regular full-time positions over partial load, subject to operational
requirements. In the result, the aspect of the grievance respecting the Graphic Design
Program is hereby dismissed.
The Board will reconvene to address the next portion of the grievance.
Dated in Ottawa this 23rd day of February
Pamela Cooper Picher
Chair
so
"Carla Zabek"
I concur.
College Nominee
"Sherril Murray"
I dissent for reasons set out below.
Union Nominee
53
DISSENT OF UNION NOMINEE, SHERRIL MURRAY:
Fanshawe College "Arts and Design" Article 2
With all due respect, this member dissents from the majority view on a number of issues
raised by this grievance. First and foremost there is absolutely no evidence that
teaching in "two streams" and at the higher levels is not attainable. The evidence is that
Mr. Chilvers can and does. That is the evidence before this Board. It is Dr. Boyd's
opinion that it is unusual. The employer put nothing before this Board to show us it was
not possible. They have recruited in this department for many years and nothing came
into evidence to suggest they could not fill a position that required the skill set of Mr.
Chilvers in all"streams".
Similarly there is simply no evidence other than Dr. Boyd's opinion that the offering of
upper level courses by a part-time/partial- loader, for example Mr. Devries, in anyway
substitute for a co-op experience or delivers more current industry knowledge than full
time professors. Indeed the collective agreement provides both time and money for full
time people to stay abreast of the industry. The employer continues to rely on the skills
of people such as Devries and Weibe as non full-timers effectively depriving them of the
opportunity to have their professional development funded. It is precisely this reliance
that violates the provisions of preference for full- time hires and effectively erodes the
bargaining unit. Failing to increase complement by its very nature serves to erode the
54
bargaining unit. Dr. Boyd's own evidence confirms that he adjusts the teaching
assignments to accommodate the hiring of non-full time hires such as Mr. Devries.
While Dr. Boyd served as a credible and knowledgeable witness, much of his opinion
evidence was not supported. We saw nothing to support his assertion that this staffing
pattern served to increase market acceptability to either students or industry. His
opinion that none of the current staff could teach in the higher levels simply does not
preclude the fact that a suitable candidate may be recruited. Indeed, there are full time
Professors who teach in the higher levels. His assertion that once found, that staff
would soon loose current industry knowledge is not supported by the terms and
conditions of the collective agreement.
I agree that the Union has met its obligation to establish a prima facie case. The
employer falls short of meeting its onus to prove why a full time hire was not possible
due to operational requirements. Therefore, the teaching contact hours of Weibe,
Devries and Grieve must be included in the available hours for full-time.
On pages 11 and 12, the majority discusses the impact of the "Winter Spike" concluding
that it is of little probative value and the fall and summer semesters then become the
"focus". The winter "spike" still represents a number of new students added to the
students who started the programme the previous September. The evidence was,
although they could typically expect a higher dropout rate from the January intake,
many of the students do continue thru the programme and must be "counted". So
although there are legitimate non full time hours associated with the winter intake, there
ss
still exist a group of students who will complete the programme which also
demonstrates a need for continuing full time teaching hours.
In terms of the length of time considered an appropriate picture of the staffing pattern,
the union correctly asserts that the collective agreement envisions a "12 in 24" for the
length of time a sessional position may exist. It is a logical assertion that if an ongoing
position can be staffed by a non-full time person for that length of time and then calls for
that same position "to be staffed by a bargaining unit member" that a 12 month period
be examined for viability of a full time hire.
The Local filed this grievance in 2004.By the time this case was completed, the college
had hired two new full time Professors, dramatically changing the staffing arrangement
the Union grieved.
This Board excluded the evidence of an impartial review of the college's staffing
projections that impugned the integrity of its staffing vision. With all due respect, it is a
valuable piece of evidence that should have become part of the decision capacity of this
Board.
In conclusion, this member would have allowed the teaching contact hours performed
by non full timers Grieve, Weibe and Devries (or other NFT's similarly situated) and
ordered a minimum of two more full-time positions to be created and brought into
56
complement status allowing the professor (and by extension the students) the benefits
of the collective agreement.
All of which is respectfully submitted by Sherril Murray.
February 23, 2010.
57