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HomeMy WebLinkAboutMaystruck 23-01-19 IN THE MATTER OF SECTION 14 OF THE COLLEGES COLLECTIVE BARGAINING ACT, 2008, S.O. 2008, CHAPTER 15 B E T W E E N: FLEMING COLLEGE (the “College”) - and - ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION, LOCAL 352 (the “Union”) Re: Workload Complaint of Victoria Maystruk A W A R D Paula Knopf - Arbitrator APPEARANCES: For the College Timothy P. Liznick, Counsel Jordynne Hislop, Counsel Krista Secord, Director Employee and Labour Relations Natalie Julian, Client Services & Labour Relations Consultant Angela Pind, Academic Chair School of General Arts and Sciences For the Union: Matthew Appignanesi, Grievance Officer Victoria Maystruk, Grievor Liz Mathewson, Local President Suzanne Hooke, Local Vice-President Audrey Healy, Chief Steward The hearing of this matter was conducted electronically on January 11, 2023. 1 This case involves a request to have one hour added for “normal administrative tasks” to the Grievor’s SWF for her Winter 2023 semester. The College opposes the request. The relevant provision of the Collective Agreement is: 11.01 F 1 Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher by the College. Hours for such functions shall be attributed on an hour for hour basis. An allowance of a minimum of six hours of the 44 hour maximum weekly total workload shall be attributed as follows: four hours for routine out-of-class assistance to individual students two hours for normal administrative tasks. The teacher shall inform his/her students of availability for out-of-class assistance in keeping with the academic needs of students. [emphasis added] The Grievor teaches Mathematics in the College’s School of Business and I nformation Technology. Her teaching requires her to mark “hard copies” of assignments in order to determine students’ thought processes and answers. The Grievance is based on the assertion that the Grievor’s administrative workload has increased because of the cumulative effect of three factors. First, it was pointed out that since the College has closed its Duplication Centre, the Grievor is now required to do her own photocopying, collating, organizing, and transporting of printed materials for her classes. The Grievor describes her courses as “paper heavy” because of the nature of the assessments and grading process. With the photocopying machines often breaking down and the paperwork required for her courses, the Grievor asserts that this has dramatically increased her administrative burden by at least one hour per week. 2 Secondly, it was said that there was a significant increase in the Grievor’s email traffic during the past semester, triggered by students and staff needing to stay home when they are sick and Faculty having to arrange coverage for classes they cannot attend. It was predicted that this increased level of emailing will continue during the Winter 2023 Semester. Third, it was pointed out that the Grievor has to liaise with the Accessible Educational Services [AES] Centre for many students. However, in the past semester, the Grievor encountered significant frustrations and has wasted precious time because this office was often closed without notice and/or it was not responsive to her or her students’ needs. In addition, the location of the Centre is distant from the Grievor’s office, requiring additional time to take or retrieve student assignments. The Union argued that the additional photocopying alone justifies adding one hour to the Grievor’s SWF because of the extra administrative burden that is now upon her. It was stressed that while Article 11.01 F 1 allows a minimum of two hours for administrative functions, this leaves latitude for additional hours to be attributed for the extra time the Grievor is spending to serve her students. Moreover, the Union asserted that this time, compounded by the increase in the number of emails the Grievor has to deal with, along with AES issues, merits more than the minimum of two hours already attributed to her for “administrative tasks”. The Union submitted that this request is supported by the decision of Arbitrator Jesin in Algonquin College and OPSEU, (Bain), 2017 CanLII 36530 (ONLA). The College’s response was primarily based on the assertion that the Union has failed to establish that the Grievor’s administrative burden is anything different from other Faculty members at this College. It was pointed out that the arbitral caselaw on Article 11.01 F 1 has established that in order to succeed, the Union has to establish that the Grievor’s situation is “atypical” and that this has affected her administrative workload. The College argued that nothing in the Union’s case reveals that the Grievor is 3 confronting photocopying or other administrative tasks that are different than any other Faculty member at this College. Further, the College suggested that the Grievor’s concern about the anticipated increase in emails is simply “speculative” and cannot be said to differ from that facing any other member of this bargaining unit. On a positive note, the College praised the Grievor for her Online “Shell” for her courses, calling it “exceptional”, and saying that it allows her students excellent access to course materials that will assist them when they are absent. Therefore, it was suggested that the email burden on the Grie vor may not be as onerous as anticipated. Finally, the College acknowledged that there have been operational problems with AES recently. However, it was stressed that the problems have been identified and are being actively addressed. Therefore, it was argued that there is good reason to believe that the problems will not persist. Alternatively, it was pointed out that all Faculty members have been affected in the same way. In support of its submissions that the Grievance should be dismissed, the College referred to the following caselaw: Sir Sanford Fleming College and OPSEU, Local 352 (Bohart and Fogarasi), Decision of H. Snow, April 3, 2018; Sault College and OPSEU Local 613 (Connolly-Beattie et al), Decision of T. Wacyk, September 24, 2014; Sault College and OPSEU, Local 613 (Eason), Decision of T. Wacyk, October 9, 2013; Fanshawe College and OPSEU (Morgan), Decision of J. Parmar, November 22, 2014; Niagara College and OPSEU (Bellantio and Siemens), Decision of D. Starkman, January 12, 2021; and Northern College and OPSEU (Mohanty), Decision of P. Knopf, January 11, 2021. By way of Reply, the Union stressed that neither the College nor this Arbitrator is bound by the “minimum” number of hours in Article 11.01 F 1. Further, in response to the notion that the increased email and AES burden for the Winter 2023 is purely “speculative”, the Union asserted that reliance can be placed on the Grievor’s past 4 experience with these issues. It was said that when the three factors are taken into consideration, they amount to “death by one thousand cuts”, thereby warranting an increase in the amount of administrative hours on her SWF. The Decision There is no factual dispute in this case. The Grievor’s credibility is not questioned, nor is the sincerity of her claim. However, the case has to be decided on the basis of the application of the Collective Agreement. As other arbitrators have often pointed out in WRA cases, Article 11 creates a formula that “attributes” a certain number of hours to certain kinds of Faculty duties. The Standard Workload Formula is, by definition, a “formula”. It attributes hours based on the Parties’ carefully constructed agreement on each item. It does not pretend to reflect or respond to the actual hours a particular professor may devote to their students or the College when they teach or attend to other Faculty responsibilities. This case is focused only on the Grievor’s “normal administrative tasks” under Article 11.01 F 1. There was no dispute over the concept that photocopying, attending to emails and liaising with AES fall under this category. I do not doubt that the Grievor has encountered frustrations in these areas that she anticipates may continue. Hence, the reason for this Grievance. However, it cannot be ignored that the submissions and evidence do not demonstrate that the Grievor finds herself in any different or “atypical” circumstances from any other bargaining unit member. The elimination of the Duplication Centre and its two staff members may be a loss for the Faculty, but it is a loss for them all. They all must now do their own photocopying. This cannot have impacted the Grievor in so significant a manner that it makes her “atypical”. Further, it is hoped that scanning and other technology will soon alleviate the need for “paper heavy” assignments. 5 Similarly, there was nothing in the material to suggest that the Grievor’s emails or he r work with AES set her apart from other Faculty. The distance of her office from the Centre cannot be a relevant factor. The email correspondence that she must undertake is a burden that all Faculty share. Arbitrator Parmar properly explained how a case based on Article 11.01 F 1 must be addressed: 7. This language indicates that the presence of atypical circumstances must be considered in the context of Article 11 as whole. Article 11 sets out a complex formula based on a variety of different factors reflecting the agreed approach of determining workload. As noted by Arbitrator McLean in OPSEU – and – Centennial College ( McLean, March 16, 2012): As a result of the workload system, it is not normally helpful to compare the amount of work a teacher actually does with the amount of work that is set out on the teacher’s SWF. There will be workload winner and losers. That is the nature of the system adopted by the parties. 8. In other words, the workload system is not driven by the amount of time a specific teacher spends in relation to a particular course. The system recognizes some may spend more, and some may spend less. . . . . Article 11 is not about an assessment of the individual. 9. Rather than on a specific teacher, the parties have agreed the focus is on the “circumstances” of a particular assignment, and how those “circumstances” impact workload. Only if those circumstances are atypical, and only if the impact of those circumstances affects workload in a manner not reflected in Article 11, does the collective agreement mandate that additional hours are to be attributed to that assignment. [emphasis added] Given the focus of the Grievor’s claim in the case at hand, the failure to establish that the Grievor’s situation is atypical prevents the success of the Grievance. I am mindful and respectful of the Algonquin College and OPSEU (Bain) decision, supra. However, that case is distinguishable from the one at hand. In the case of Professor Bain, he was specifically assigned to communicate and coordinate with 6 another member of staff in order to ensure the procurement of specialized materials for his program. This was atypical of other bargaining unit members and, more significantly, this had been credited on his SWF in the past. That supported the claim for additional credit. That situation is far different from the case at hand. The Grievor has not been specifically assigned any duties that differ from her colleagues, and she is claiming credit for work that has not been recognized as being “atypical” ever before. Accordingly, the Algonquin College and OPSEU (Bain) case cannot be viewed as supportive of this Grievance. For all the reasons set out above, the Grievance must be dismissed. DATED at TORONTO this 19th day of January 2023 ____________________________ Paula Knopf - Arbitrator