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HomeMy WebLinkAboutGee 88-09-08 '>.'\ IN THE MATTER OF a Collective Agreement between the Ontario Council of Regents for the Colleges of Applied Arts & Technology and the Ontario Public Services Employees Union (for the Academic Employees) AND IN THE MATTER OF an Arbitration pursuant to Article 4.02 of the said Agreement, heard on Thursday, September 8th, 1988, in London, before Rodney D. Dale, Workload Resolution Arbitrator BET WEE N: DAVID GEE Teaching Master - and - FANSHAWE COLLEGE OF APPLIED ARTS & TECHNOLOGY College APPEARANCES: For the Teaching Master - Tom Geldard - First Vice-President Gary Fordyce - Chief Steward David Gee - Teacher For the College - Howard Rundle - Vice-President Academic - Ingrid Hobbs - Personnel Officer AWARD The issue for determination ln this case involves a consideration of the voluntariness of the overtime provisions of the Collective Agreement. I am indebted to each of the participants for their respective contributions in establishing a factual foundation upon I am fur~her grateful for the informative and persuasive arguments of each of the participants. The hearing commenced at 1:00 p.m. in the afternoon of September 8th and concluded at 4: 30 p.m. I was most impressed with the maturity and decorum displayed by all parties throughout the discussions of the rather delicate and potentially emotional issue as to whether a teacher could be compelled to work overtime. The underlying atmosphere of congeniality was indeed very refreshing and indicative of a good working relationship and reciprocal respect between the union and the administration of the college. I also feel compelled to comment on the very thorough and able presentation by David Gee who contributed substantially to the presentation of his own case. David Gee obtained a Bachelor of Arts in psychology and philosophy from the University of Western Ontario in 1964. He obtained an Honours degree in philosophy at University of Western Ontario in 1965. He then enrolled in a Master of Arts program at the Uni versi ty of Toronto obtaining a Masters in philosophy In 1966. Mr. Gee then travelled to England where he enrolled in a Phd. program at the University of London where he studied philosophical psychology, particular the works of Sigmond Freud. Mr. Gee did not submit his thesis and was thus not eligible for a Phd. He returned to Ontario in 1972. For the past sixteen years, Fanshawe College. teaches in the Human Services Division. He is the only philosophy teacher in the College and is one of many psychology teachers. It lS a requirement of the Collective Agreement that the teacher be presented with his new teaching assignments at least six weeks before the start of the summer vacation. It was estimated that sometime during the month of May, Mr. Gee probably would have received notice of his teaching assignments which were to begin in September of 1988. The courses which Mr. Gee was assigned included: intropsychologYi abnormal psychology; Canadian studies; and introphilosophy. Mr. Gee's standard workload form (S. W. F.) constituted 42.1 hours. On the 13th of May, 1988, Mr. Gee indicated that he was not in agreement with the total workload. A meeting of the Workload testimony on Mr. Gee's workload, was June, 1988. Monitoring scheduled Group to hear for the 1st of As a result of the hearing before the Workload Monitoring Group (W.M.G.), it was decided that Mr. Gee's S.W.F. would be revised to reflect a workload of 44.4 hours per week. Overtime payment was arranged for the .4 hour weekly over the maximum of 44 hours per week. Mr. Gee was he promptly replied on the 27th of June, 1988, that he was not in agreement with working overtime. Mr. Gee maintained the position that overtime was voluntary. It is unfortunate that when the W.M.G. met to consider Mr. Gee's complaint, it was perceived by the W.M.G. that Mr. Gee wanted recognition for the teaching load which he had been assigned and in addition, probably wanted some form of financial compensation such as overtime pay. Mr. Gee has made it abundantly clear at this hearing, that his purpose and intent of proceeding to the W.M.G. was not to obtain recognition and overtime pay, but rather to have some of his teaching burden lifted from his shoulders. This issue was considered by the Workload Moni toring Group and a motion to negotiate a revised S.W.F. with a maximum of 44 hours per week for David Gee, was defeated. The results of that meeting were released on the 30th day of June, 1988. Mr. Gee then requested that the matter of his involuntary overtime be placed before the Workload Resolution Arbitrator. There are a number of provisions relating to the issue of overtime contained in Articles 4.01 and 4.02 of the Collective Agreement. In essence, these provisions state that the Workload shall not exceed 44 hours per week, and further, that overtime shall be voluntary. There is, however, a constraint specified in Article 4.01 (I 0) (c) which states, "all such voluntary overtime agreements, which shall not be unreasonably withheld...". Thus it would appear that the voluntary nature of working overtime is on as to whether it reasonable for an individual to refuse to work overtime. The onus for establishing whether or not the withholding of the consent is reasonable, must initially rest upon the teacher since the reason why the teacher is withholding consent is within the exclusive knowledge of the teacher. If the teacher advances a reasonable excuse for not working overtime, then the onus rests upon the college to establish that the teacher was being unreasonable in withholding consent. Ultimately, the arbi trator must hear all of the facts and make an objective determination as to whether the teacher was acting reasonably by withholding consent to work overtime. Mr. Gee referred to faculty averages to justify his refusal to work overtime. The average classroom hours for 39 teachers in the Human Services Division amounted to 14.1 hours per week compared to Mr. Gee's classroom hours of 17 hours per week. If co-ordinators were excluded from the above figures, the remaining 28 faculty have an average of 15.5 classroom hours per week as compared to 17 classroom hours per week for Mr. Gee. The Human Services Divisional average for S.W.F. lS 42.9 hours as compared to 44.4 hours for Mr. Gee. Mr. Gee stressed that there was a substantial amount of work for three out of the four courses which he had been assigned. He indicated that he had not taught the intropsychology course for three years and further, that there was a new text book and study guide. Although Mr. Gee taught abnormal psychology last year, a new text and study guide had been assigned which required him to substantially revise his manner of teaching the course. The Canadian Studies course was being reduced from 21 hours to 9 hours. Mr. Gee indicated that he would have to prepare new lectures to accomodate this change. The introphilosophy course was a repeat of last year's course. Mr. Rundle, considered Mr. Gee's who was workload a member of the W.M.G. assignment, indicated that that the W.M.G. heard evidence from the chairman of Mr. Gee's department who disputed Mr. Gee's allegations of a substantially increased workload. According to Mr. Rundle, the chairman who testif ied before the W. M. G. indicated that there would be certainly some increase in Mr. Gee's workload, but that the changes were not as significant as Mr. Gee would have them believe. The determination of the number of hours that ought to attributed to Mr. Gee in order to adequately reflect his workload, was within the jurisa'ic\t:ro:r:re:f'tne W..M. G . In view of the was made by W.M.G. to attribute 44.4 hours to Mr. Gee on his S.W.F., I am precluded from interferring with such decision pursuant to the provisions of Section 4.02(4)(e) which indicates that such decision shall be binding on the college, the union local and the teacher involved. Mr. Gee also advanced the argument that consideration ought to be given to the fact that he is teaching in two different disciplines, psychology and philosophy. The college indicated that it is not uncommon for persons to teach in different disciplines, and regardless, that is a factor to be considered by W.M.G. in attributing the 44.4 hours to Mr. Gee, and since W. M. G. made a decision in respect to the number of attributable hours, that decision is binding. Mr. Gee began to advance an argument that he had difficulty coping with three new courses. He indicated that he had an increased stress level for which he was obtaining treatment from a specialist. Mr. Gee did not wish to entertain any discussions regarding his stress level nor did he wish to be subjected to any cross-examination regarding the issue of stress. It was explained to Mr. Gee that if he wished to rely upon the issue of medical treatment for a stress disorder as justification for refusing overtime, then he would be subjected to cross-examination on that issue. Mr. Gee then withdrew his statement and indicated that he is not claiming any additional stress that any with three new courses. In rebuttal, the college at once referred to the W.M.G. determination of Mr. Gee's workload which only put him marginally above the 44 hour per week maximum with due consideration being given to his increased workload. Mr. Gee's student contact is 490 for this term. The college did not refute this evidence. Mr. Gee stated that the extra hours attributed for contact with students outside of the classroom of three hours per week was insufficient on his S.W.F. as he sees students for longer than three hours per week. The college maintained the position that this issue was resolved when Mr. Gee's attributed workload was increased on his S.W.F. by unanimous consent of the W.M.G. Mr. Gee suggests that the onus ought to be on the college to establish that the teacher is being unreasonable in withholding his consent. Mr. Gee states that if he was relieved of his teaching responsibilities for the intropsychology course, that there would be numerous available graduates from the University of Western Ontario who would be capable and willing to teach the intropsychology course. He indicates that consideration ought be given to the test of necessity. In other words, was it necessary for him to lncur overtime hours to teach this course when it would be easy for the College to obtain an intropsychology teacher on relatively short notice. He further suggested that since the college only paid for actual teaching ine.xpensi ve for week and further, that they would save the $20.00 per week in overtime that they are presently paying to him. The college disputes the costs associated with hiring someone to teach the intropsychology course. The college further stated in rebuttal, that Mr. Gee would be paid the same amount of money and yet his workload would be reduced by 5.2 hours if he was reI ieved from his teaching responsibi I i ties for the intropsycology course. The result would be to give Mr. Gee the lowest number of hours in his division. He would be under the average number of hours by more than twice than he is presently above it. The college stated that no teacher in the division has a workload of less than 40 hours per week. If the intropsychology course was removed from Mr. Gee's workload, it would reduce his hours to 39.2. The college indicated that they are only asking Mr. Gee to work .4 hours per w~ek of overtime. This amounts to 5 minutes per day. In order to accomodate Mr. Gee's refusal to work overtime, they would have to bring 1n another instructor. The college indicates that this would be at a substantial cost to them. The cost of bringing 1n an outside teacher for the introductory psychology course 1S in dispute. The college further maintained that the students would suffer if to have to prepare and teach the course. Mr. Gee stated that the students would not suffer because he has only taught one-half hour of classroom time thus far and next week is orientation. The course is still in its infancy. The college also suggested that Mr. Gee had ample time to prepare for his new teaching assignments over the summer months. Mr. Gee indicated that he does not like to work overtime. He stated that he has not worked overtime in seven years. Three times in the past sixteen years, the college has tried to force him to work overtime, but he has grieved those three occasions successfully. Mr. Gee acknowledged that he would have no right to complain about his increased workload following the W.M.G. reallocation of his workload but for the fact that he is now attributed with .4 'overtime hours per week. The parties unanimously agree that the only practical manner in which to reduce Mr. Gee's workload would be to remove the intropsychology course from his responsibility. Mr. Gee candidly stated that he was upset about the amount of work involved in teaching the three new courses rather than the fact that he was attributed 20 minutes of overtime per week. and careful consideration of the foregoing facts, it is my decision that the grievance must be denied. Each of these cases must be decided upon their own facts after an obj ecti ve test as to whether the teacher was act ing reasonably in wi thholding his consent to teach overt ime. I am particularly influenced in my decision by the fact that Mr. Gee is only being asked to work five minutes of overtime per day. If his objection to working overtime was upheld, the only al ternati ve would be to reduce his workload to 39.2 hours, the lowest in his entire division. The exact amount of the cost to the college to have an alternate teacher supplied is in dispute and depends on whether the assignment was given to one of the existing part-time or full time teachers or whether it would be given to someone from outside the college. Whomever was selected to teach the course, there would be some delay in the selection process as well as some time would be required for the new teacher to acquaint th~mselves with the course material in order to prepare for the teaching assignment in an adequate manner. In my view, it was unreasonable for Mr. Gee to refuse to work an addi tional five mintues of overtime per day In view of the foregoing factors. Dated at London, this 8th day of September, 1988. R. D. Dale Workload Resolution