HomeMy WebLinkAboutAranton 82-04-05
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IN THE NATTER OF A;.~ Al{Jil'flV\.TION
ilET\.JEEN:
FANSrlMJE COLLEGE OF APPLIED ARTS AND TECtINOLOGY
(Hereinafter referred to as the College)
AND
ONTARIO PUilLIC SERVICE EHPLOYEES UtHON (He rei oa fter
re fe r re d to a s the Vni on)
A:'l'D IN THE dATTEt{ OF THE GRIEVANCE OF C. ARANTON REGARDING \"rURKLOAD
HOA,RD OF AKBITRATION:
Gail Brent
E. Brady, College Nominee
L. Robbins, Union Nominee
APPEAIUtiIJCES:
FOR THE COLLEGE:
w. J. Hayter, Counsel
D. L. Busche, personne 1 Assi stant
C. L. Hci.!illiam, Chairman, Nursing Program
FOR THE UNION:
Nichael Pratt, Grievance Officer
Jeremy Gurofsky, Chief Steward, Local 110
HEA..I{ING HELD IN LONDON, ONT.\lUO ON FEB1WARY 22, 1 ~82.
DECISION
The fila t te l' be fo re tid s boa rd a ri se s out of a gri e va nce da te d June
30, 19dO (Ex. 1) . The grievance as submi t te d to us is fi ve page s long,
and cove rs a re a s not rele vant to the issue be fore us; the parties agreed
that only pa ragra ph 1 (a) se t out the substance of the complai n t be fore
Ua:
~iorkload
The Colletje bas not taken into consideration all
the variables listed in Article 4 of the Collective
Agreement to ensure that my workload is equitable
wi th the workloads of my colleagu!~s and to ensure
that it conforms to the requi rernents of Article
4.01. Specifically,
(a) You admit in your memo of 198U 05 2U that I
was scheduled, even by your calcualtions, to a
rolling average in excess of the contractual liud ts
during the April-Hay-June period of 1900. I
believe your.5 hour finding does not reflect the
true si tuation or account for the real contractual
1
overage. From Barch 21 to June 20, for example,
you could have assigned a maximum of 276 hours, but
you act~:llly directed me to teach 296 hours. From
June 9 to June 30, the contractually possible
maximum is bb hours, but you have directed me to
teach 82.5 hours. More demonstra ti ons can be
provided of a clear breach of Article 4.01 of tbe
Collec ti ve A6reeI!'.ent by the College.
There are certain facts vJhich were agreed to by the parties. At
the tirr.e of the grievance, the grievor was a full-time teachi ng master
employed oy the C;ollege and, in regard to her instructional assignments,
was covered by Article 4.01 Option A under Group 2. The schedules given
to the grievor for the six months beginning January, 1980 and ending
June, 19dO (Exs. 3 & 4) form the basis for the Union's grievance. For
the purpose of calculating the maximum teaching hours per week
permissible under Option A, the College used thr~~e month periods and
"rolled" on a monthly basi s.
The Union does not challenge the College's right to pick a three
montil period for tile purpose of llBldng the calculation; it does
challenge the College's right to "roll" on a monthly basis.
The Uni on
asserts that the "roll" must be done on a weekly basis.
The Uni on also
asserts that, as one gets to the end of the academic year, the averaging
period decreases until there is just one week left.
The College objected that the Union was trying to enlarge the scope
of the grievance, dnd that tbe issue as stated was not that put forward
in the grievance. That issue will be dealt with later in tile decision.
The Union relied on tile staterr.ent of facts; however, the College
called wi tnesses.
The evidence of each witness will be sumnnrized
below.
Hr. Doug Busche testified that ever since January, 1976 the Colleg~
has been usi ng a three month base for its calcula tions and has been
2
"rolli ng " eve ry mon th.
Article 4.Ul first appe<L'.~d in the agreement
which affected the lY75-76 academic year. He said that he believed that
the College's r~ttlod of calculation is well kno,m in the bargaining
uni t, and that tile teaching schedules of all academic personnel are
distributed as follows:
one copy to the teaching master, two copies to
the Planning and Development Department (one of those copiei" is the:;
forwarded to the Union).
He said that tbat was not discussed in the
course or discussing the grievance.
Hr. Busche agreed that the form of the schedule has chaGged over
the years, and that it originally sho';o.'ed all of the figures used to
perform the calculation of tile average number of hours per week.
Hr. Howard Rundle, the Director of Planning and Development at the
College since 1972, testified that he was involved in determining how to
implement the "rolling" average. He said that a number of possibili ties
\~re considered for the "roll", including monthly, v~ekly, daily, etc.
"rolls", and that it was finally determined that a monthly "roll" was
wha t the words in tne collee ti ve agreement called for.
Hr. l{undle sai d
that over the years he has had a number of discussions with the Union
about the method of calculating the "roll", and that he has often
received requests from the Union to explain the College's position. He
also said that in 1979 t1e was on a committee with some Demoors of the
Union executive, including Hr. Gurofsky, and nad explained the method of
calculation used by the College at that tillie, at the request of the
Uni on members on the comcui ttee
Each year Hr. Rundle's department senJs a memorandum (Ex. 5) to all
heads of teaching departments explaining how to prepare the individual
teaching schedule summaries.
He said that at one time the heads were
required to calculate the averages themselves; however, in order to
3
eliminate the possioili ty of mathematical errors) the departu);nt no,,,
produces a table sbmving the "maximum permissible teaching hours per 3
months" (Ex. 5 page 2) so that the head can see Hhat the maximum number
of hours wi 11 be.
It was also Hr. Rundle's view that the College's !l};!thod of
calculation was approved in a 1977 arbitration case bet'\'Jeen the parties
and has been unchanged since its ini'tiation.
The board also heard evidence from Hs. Carol McWilliam) the
Chairman of Nursing at Woodstock.
She sai d tha t the grievor di d not
work the .5 bour beyond the maximum aLlowable as alleged in the
grievance) because Hr. Rundle's office caught the ndstake and the
grievor's schedule was reduced accordingly.
Ns. HcWilliam also said that in June the hours are very high in the
nursi ng programme because of the increased cli n1 cal componen t ~Jhi ch
requires one teacher for every eight or nine students.
Sbe sai d tha t )
because of this) she must look at the whole year and use the hours
efficiently in order to have sufficient hours to meet the needs of the
schedule in the Hay - June period.
The provsion in the collective agreement with ..lhich \ie are
concerned is Article 4.01 Option "A" \Jhich is reproduced below:
INSTRUCTIONAL ASSIGNHENTS
4.01 The College v.>:ill establish
schedules that adhere to the following:
tea chi ng
Group l'
(Academic Post
Secondary)
Group 2
~mximum teaching hours
per week
19
21
Maximum teaching hours
per year
700
900
4
~bxiwum teaching hours
for Nursing per year
775
Maximum contact days
per year
180
190
shall
pe ri od
The maximum teaching hours per week
be de te rmi Bed on a rolli ng a ve rage for a
not exceeding three mc.:ths.
. ..... ......... ~..................... .............
It is understood that no teacher
shall be assigned teaching hours in excess of the
maximum teaching hours provided for herein except
by volulltary agreement between the teacher and the
college providing fair compensation ('\vhich may be
by way of equivalent reduction in other teaching or
non-teaching assignments or by way of monetary
payments). If there is no such agreement or if
there is a dispute arising out of such agreement a
claim by an emplo'yee concerning compensation as
referred to above for teaching hours in excess of
the Il'.aximum teaching hours is subject to the
grievance and a rbi tra ti on procedurE!.
. ............. ... .... ..... ............. ........ ...
The Union SUbmitted that the grievance reflects the grievor's
concern about the rolling average calculation, and that the fundamental
problem to be dealt wi th is 'I-,Thether or not Article 4.01 is being
properly applied.
It ci ted Niagara College and Ontario Public Service
Employees Union, (1977) unreported (Weatherill) as setting out the
prope r
.~
College
method of calculating the "roll".
In connection with
Fanshawe
and Ontario Public Service Employes Union, (IY77)
un re par te d
(Brown), i.t was tile Union's submission that the rolling average was not
challenged there, and so it is the Niagara al.Jard alone which i 3 crucial
to the de te rmi na ti on 0 f thi s issue.
It was argued that the L.;nguage is
clear that the "roll" should be every week because it is the ",reeks 'I",hich
are crucial in the provision.
It was further submitted that the "roll"
should be a smooth process - one which moves steadily onwards and that
5
as one gets to the end of the academic year the College must contir'ue
averaging in ever decreasing periods until it gets to the final week, to
prevent a heavy back end load.
The College met these arguments with four alternative positions.
Its first argument is that the determination of the period of the "roll"
is not specified in Article 4.01, and therefore is a management right
\vhich has been exerci sed pursuant to Article 7.01 and cannot be
reviewed.
If 1 tis not a management right, then the College's second
argument is that Article 4.U1 contemplates rolling on a mC;.1thly basis
and so there has been no breach.
T111 s a rgume nt isba sed on the fac t
that a \.;eekly "roll" would not provide maximum flexibility, because the
College would be constrained to assign no more hours than it had
assigned in the week being dropped. As a third alternative, the College
has argued that the provision is ambiguous and so the consistent past
practice of the College should determine the issue. The College's final
alternative argument is that this is a case ,;here the doctrine of
estoppel should apply.
This argument has two facets to it.
It is
argued that implicit in the Fanshawe decision (supra) is the assumption
that the method of calculation WclS correct, even though the particular
issue was not placed directly before that board.
It was also argued
that the Union ought to be estopped from raising the issue outside of
negotia tions, because it has known of the College I s practice and the
College has relied upon the correctness of its method to its detriment
in the face of the Union's silence over the years.
Upon readi ng tbe grievance, it must be agreed tha tit is capa ble of
being construed as raising the fundamental question of how the rolling
average should be calcula ted.
Clearly, the grievor's examples of what
she considered to be the excessive hours she was SCheduled to work
6
depend on a ~thod of calcuation ~Jhich is different from that employed
by the College. Although we were told that that ~\....as not specifically
discussed in the grievance procedure, we were not told what was
discussed, and have no way of judging to what extent the issue does
di ffer from thl: issue ~...hich the Union aq~ued at the hearing.
At the
request of counsel for the College, the board gave him as much time as
he needed to consider his position in light of the Union's initial
state~nt of the issue and to prepare his response to the Union's
argument. In view of the reasonable construction ~...hich can be placed on
the grievance, and taking all other relevant factors into consideration,
it is our decision that the issue raised by the Union can be properly
considered and determi ned by the board.
Having read both the Fansha\:;e and Niagara awards to which counsel
referred, it seems clear that there 'is no one accepted 1ll2thod of
calculati ng the rolli ng averages re ferred to in Article 4.01.
In the
Fanshaw'e case, it is quite clear that the Union ~...as not challenging tbe
Ire thod 0 f rolli ng on a mon th by mon tb ba si s (see page 5) ; the issue
there appeared to be whether the College could calculate the averages
using calendar ~veeks and months as the basis for the calculation, without
deducting therefrom time when no teaching is assigned. The award upheld
the College's rrethod of calculation as being consistent with the
Article.
In so doing, tLough, it can be taken as finding that, insofar
as the matter in dispute was concerned, the College ~.;as correct in
interpreting the Article as allowing calendar months and calendar weeks
to be used for the purpose of making the rolling average calculations.
That is, it can be given a narrow interpretation and one which does not
depend on the assumption that it accepted the month.ly "roll" as an
7
integral part of the system which had to be accepted in order to make
the deci si on on [He lllli t te rs in di spute.
The Niagara case is one in whi ch the ll'.e thod of calcula ti ng the
~ekly average was totally di fferent than tha t used in the Fanshawe
case, and where the pe rioa of the "roll" WdS also di fferent than in the
Fanshawe case.
The Union's position there appeared to have been that
each employee could select an averaging period to maximize his teaching
hours. It would appear that there are three separate opinions expressed
by the members of the board in that case on the propriety of the method
chosen by the college for the calcula ti on of the rolli ng a ve rage,
although it is clear that the chairman, Mr. Weatherill, believed that it
was consistent with the manner approved of in the Fanshawe case. The
~ekly "roll" di d not seem to be an issue in tha t case, although the
addendum filed by the Union nominee does take issue \dth the fact that
"weeks 4 through 13 are averaged five times", which could suggest that
toe weekly "roll" was part of the complaint.
In short, it does not appear that either case is of much help in
resolving thi s matter~
The collective agreement demands that the teaching hours be
determined on a "rolling average" but it does not specify the period to
be used for the "roll".
It does not even sped fy a maximum "roll"
period as it does for the period to be averaged.
The language used in
Article 4.01 seems to be broad enough to support ei ther a monthly or a
weekly "roll" period, and it is possible to appreciate both the merits
and the common sense of ei ther period.
I do net think that it can be~aid that a monthly "roll" is not a
"roll" within the meaning of the article. It seems to me that the basic
consideration in a "roll" is that a given period of time is removed from
()
the equation aml replaced with an equivalent period of time, provided
that all periods of time used in tbe eq1.Ation must be contiguous. A
monthly "roll" as applied by the Colleh'e satisfies that definition - as
would a bimonthly, weekly or daily "roll" of the same sort.
It therefore appears to me that this is a case where the collective
agreement is silent about the periods to be "rolled" at the time of
making anyone calculation.
That is not to say that the collective
agreement is necessarily ambiguous, but rather that the Article does not
restrict the College to determining any particular period as being an
appropriate "roll ".
Accordingly, I i'iQuld have to agree with the
submission made on L'ehalf of the College that the determination of the
period to be "rolled" is an exercise of management's functions within
Article 7 of the collective agreement and cannot be overturned by this
board. The College validly determined \"hat the "roll" would be a number
of years before this grievance arose, and so gave meaning to the Article
in the collec ti ve agreement.
Tha t Iileani ng has not varied over the
years, and it would be irresponsible of this board of arbitration to
upset such a long, established practice unless there was a clear
violation of the collective agreement.
This board ~yas not asked to consider \vhat the situation would be
should the Colle ge uni la te rally de te nui ne tha tit would 11 ke to re-'
define the "roll" period, and the board considers that that is a totally
different matter which must be considered in the light of the facts and
re pre senta tions made should such a case ari se.
This case deals only
with a situation where the College validly exercised its mana[:;'ement's
rights in connection with establishing the various components of the
"roll" period and then continued to apply the same method of calculation
9
for a nuraDer of years.
If tIle Article lIad Deen found to be ambiguous, then the result
would have been the same in the face of the consistent practice of the
College; a practice known to the Union ever since the Article came into
force.
In view of the finding contained herein, I do not believe that
it is necessary to deal with the other issues raised by counsel. The
.dnding (loes, 1 believe contain a full and complete answer to the
grievance and to the issues raised therein.
l'hi s is certai nly not a
case where the College has kept its method of calculation a secret from
the Union; indeed there seem to have been a number of explanaticns of
the metliOd of calculation made over the years to various members of the
Union executive, and tlle one arbitration case concerning the Article
makes it clear that the Union kne\" hO\-1 the College was making its
calculations.
It seems strange that, after all those years without any
evidence of a cOiuplaint about that aspect of the method of calculation,
the Union would n01.>1 claim that the method is contrary to the Article.
If the matter had had to be decided on the basis of the estoppel
argument put forward by counsel for the College, under the circumstances
.it would have been difficult to il:,'11ore the force of the argument.
For all of the reasons set out above the grievance is dismissed.
DATED AT LONDON, ONTARIO THIS i~DAY OF fvp....,j ,1982
J-~~ ~
Gai 1 Brent
f)
\j~T
10
I concur / ~t
I concur / aissent
11
II ~ (
f:\~,- ~~ l.~
Eo ilrady, Colle g~ Nomi nee
L. l{ob.xins, Union Nominee
IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
AND IN THE MATTER OF THE GRIEVANCE OF C. ARANTON
o I SSE N T
I have read the award of the Chairman, and regret that I
am unable to concur.
The Chairman has concluded that the language in Article 4.01
is broad enough to support. either a monthly or a weekly "roll" period.
From that starting point, she concludes that the Article does not
restrict the College to determine any particular period as being an
appropriate "roll".
With respect, I disagree with that view of a rolling average.
The key sentence in Article 4.01 reads as follows:
"The maximum teaching hours per week shall be determined
on a rolling average for a period not exceeding three
months."
It is clear to me that when weekly maximum hours are set down, and
the Employer is required to determine a rolling average, it would
follow that that average must be calculated every week, to test
whether or not the rolling average is in fact being maintained under
the limit. The Employer is in fact delaying the calculation of
....../2
2
the average by only applying the "three month calculation" at
the end of each calendar month. In my view, this is a practice
which is not provided for in the collective agreement, and is not
consistent with the language.
Management is given certain leeway and discretion by the clause,
but that discretion is in tenns of setting out the averaging period
itself. That period cannot be greater than three months. On the other
hand, it may be less than three months (it may be two months, one
month, two weeks, etc.). Whatever the period selected however, the
Employer must calculate the hours worked at the end of every week
and work backwards.
The Employer has in effect added words to the collective
agreement to delay the calculation of the rolling average until
certain points in time are reached, namely the end of each calendar
month.
In fact, what the Employer is doing is simply using three
month calculations to determine weekly averages with only some amount
of overlap. The Employer should be no more able to select a one
month period for these calculations than to select a two month period
(e.g. Jan. 1 - Mar. 31; Mar. 1 - May 31; May 1 - July 31; etc.)
or a ten week period for that matter. The longer the gap between
calculations, the lower the amount of overlap in the periods being
calculated. In the extreme example, the College would simply calculate
......./3
- 3 -
three month averages with no overlap at all (i. e.1 Sept. - Nov.,
Dec. - Feb., Mar. - May, June - Aug.). That would clearly violate
the collective agreement. On the other hand, the fact that the
three month periods overlap to some degree does not make this a
true rolling average to calculate and determine hours per week.
To be a true rolling average, the Employer must calculate
every week using the appropriate amount of time (in this case' three
months) in taking an average. Because the Employer has failed to
do this, they have in fact violated Article 4.01(a).
Having stated what the proper meaning of rolling average in
this context should be, I must add-that I can understand the
Chairman's unwilJ.ingness to challenge a long established practice
that the Union had been well aware of. The comments on page nine
of the Award are of particular importance in this regard, especially
where it states that this Award is not intended to give the Colleges
the right at any time to alter the period to be rolled to their
advantage. That would in fact be a totally different question altogether.
In this case, the long standing existing arrangement was a major factor
in leading to the majority Award.
On the other hand, I must make it clear that the evidence falls
far short of what is required to successfully argue an estoppel.
There is no evidence of anyone in a position of leadership in the
Union making any specific representations to the Employer that they
accepted the Employer's method of interpretation of the collective
....../4
"
- " -
agreement. We do have the sim?le fact of the system existing, and
everyone apparently being aware of it, and no grievance being filed
for several years. On the other hand, we have no way or knowing the
extent to which such a dispute over the method of averaging would
have brought people into a situation where they were adversely affected.
In many cases, the employee1s workload might be within the maximum
whichever system of calculation is used. Only if they were adversely
affected, would employees be likely to grieve. For that reason,
one must be very careful in drawing inferences of estoppel from a
simple past failure to grieve. Therefore, the Employer1s practice,
however longstanding it may be, should be struck dcwn if it is in
conflict with the collective agreement.
For all of the above reasons I would have allowed the
grievance.
Respectfully submitted
"'J ;?
L / :' ' ,~ ' -
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,far,.,v Robb in s
-..
--..._--~
Dated this 30f~ day of March, 1982
at Toronto, Ontario