HomeMy WebLinkAboutUnion (General Arts & Science) 08-03-24
IN THE MATTER OF an Arbitration
Between
Algonquin College
AND
Ontario Public Service Employees Union
(Academic Bargaining Unit)
Regarding a Union Grievance concerning preference for
Full-time Position and Article 2 in the School of
Media and Design
Decision #4 -- Dealing with the General Arts and
Science Program
Kathleen G. O'Neil (Single Arbitrator)
Heard: September 27, November 1, 2007; January 10, 2008.
Award: March 24, 2008.
Appearances:
For the Union: Susan Ballantyne.
For the College: Jock Climie.
AWARD
1
This decision deals with the General Arts and Science program, (referred to below as GAS), the
fourth portion of the union's grievance, filed on March 14, 2005, which alleges that the staffing ar-
rangements in several programs of the College's school of Media and Design constitute a breach of
the collective agreement. There have been three decisions so far, and the parties have settled some
aspects of the grievance. The first phase of the grievance, involving the Scriptwriting, Professional
Writing and English programs, was dealt with in a decision dated June 8, 2007, [2007] O.L.A.A.
No. 291. The second, dealing with the Print Media program, was determined by a decision dated
September 14, 2007, and the third, dealing with the Theatre Arts Program, by a decision dated Sep-
tember 17, 2007. The remedy claimed is that the College should give preference to full-time posi-
tions for all available work, post and fill positions accordingly, and reimburse union dues. In the
General Arts and Science program, the union claims four full-time positions.
Context/Facts
2
The witnesses from both sides testified in a very credible manner, and there was very little dis-
pute over the underlying facts in this matter. The dispute is over how those facts fit within Article 2,
and the differences in the evidence relate to the opinions and emphasis which are a product of the
parties' divergent positions, rather than contradictory evidence about the factual context. The union's
evidence was given by the two most recent coordinators of the program, Myriam Thanasse and Paul
Hillock, who also both teach in GAS. Ms. Thanasse has been a full-time faculty member at the Col-
lege since 2004, and Mr. Hillock for more than twenty years. The College's evidence was given by
Odette Regimbal, who has been at the College since 1983, having served in several capacities, in-
cluding Director of Staff Relations in Human Resources, as well as earlier positions in Admissions
and Marketing. Since 2001, she has been Chair of Career and Academic Success Centre, which in-
cludes the GAS program.
3
With approximately 1100 students, GAS is one of the largest programs in the School of Media
and Design. It is organized into several "streams", such as pre-health and pre-nursing, mostly one-
year in length, leading to a certificate, after which students often proceed on to one of the College's
other programs. As a general matter, the program is healthy both financially and in terms of enroll-
ment, although there are some streams with lower rates of retention than others. There has been
growth in the program in recent years, and six full-time faculty members have been hired since
2001. Three of these recent hires were as a result of postings for two subject areas, Psychol-
ogy/Sociology and Biology/Chemistry. Ms. Regimbal indicated that it is good to have a second
"teachable", but that the combinations need to be carefully chosen. This enables the College to pick
a teaching demonstration topic for the hiring process which can showcase both areas, such as Biol-
ogy and Chemistry.
4
There are over 20 full-time faculty members in GAS, and almost all of the non-full-time faculty
in this program are partial load, and thus within the bargaining unit, unlike the programs dealt with
in the decisions referred to above. In her evidence, Ms. Regimbal noted that she staffs with partial
load faculty because it contributes to the stability of the program, which is healthy enough to be
able to afford to do so. As well, she finds that faculty are more willing to make themselves available
in succeeding semesters if they are offered partial load status.
5
Because the focus is on partial load faculty in this portion of the case, there is no argument
about avoiding or eroding the bargaining unit as in the earlier segments. However, the number of
hours taught by non-full-time faculty is large -- ranging from 144 to over 200 hours in 2006 and
2007, the period of time focused on in the union's evidence. The program is the most diverse one
dealt with as part of the grievance so far, housing courses which range from Chemistry to Psychol-
ogy through English, Computer Foundations and Photography, to name just a few. This lack of ho-
mogeneity means that the numbers do not translate directly into full-time workloads of the quantity
that would be obtained by simply dividing the total by 15, a common number of teaching contact
hours for full-time faculty members in this program. Rather, the union's claim for four positions fo-
cuses on course combinations they see as appropriate, mostly groupings that have been taught by
faculty at the College, although they are not combinations that have formed the basis for full-time
postings.
6
Ms. Regimbal critiqued the four proposed workloads, the first of which would be made up pri-
marily of English courses, supplemented if necessary by social science courses such as Ethics, a
non-vocational general education course. Firstly, she said that all full-time English teachers only
teach English. It is common ground that the GAS English teachers teach the same first level English
course as delivered across the College and that they make every effort to comply with the standards
set by the College-wide English coordinating committee. When asked why she would not be able to
put together English and Ethics for instance, she said for someone teaching Ethics, the College
would want someone with a background more like Philosophy, and in hiring an English Teacher
they would be looking for someone with academic credentials in English.
7
The other objection raised by the College to creating a full-time workload out of the available
English hours is that there are two English teachers with reduced workloads which means that six of
the 18 hours proposed for the first workload in 2006 are reserved for their positions, reducing that
proposed workload to below the 15 hours of a normal full-time workload, although not below the
minimum level of 12 hours for a full-time position.
8
The union's evidence contained a number of responses to this: firstly, one of the teachers whose
workload is reduced has advised Ms. Thanasse, the current program coordinator, that she does not
plan on returning to a full workload in the foreseeable future. Further, although the union's proposed
workload initially focused on the courses referred to as English 1 and 2, (ENL 1813 and 1832),
which together had 15 hours taught by non-full time faculty in Winter 2006, Ms. Thanasse testified
that there were also another 9 hours available in an English course taught in the winter semester
known as ENL 1982, Writing for Media and Communications, which could be combined as well.
As to the idea that it is not appropriate to group English and Ethics the union notes that the College
already has faculty with academic qualifications in English and philosophy. As a general matter, it
is not uncommon for faculty in GAS to hold credentials in a number of different fields of study, and
non-full-time faculty in particular have been assigned workloads in several subject areas in a semes-
ter, including some of the combinations criticized by the College.
9
There was evidence that there had been recent growth in the number of English sections re-
quired, but Ms. Regimbal was not sure that this growth would be maintained. The growth came
from a number of areas, including an expanded Winter intake starting in January 2007, and more
students in the pre-health and pre-nursing streams, as well as a pre-Music stream started in the fall
of 2007. Although the numbers would allow it, no full-timer has been hired because the College
wishes to ensure that the growth will be stable. Ms. Regimbal did not think it would be prudent to
hire on the numbers for a particular fall or winter. She said that she watches the student retention
numbers closely, and takes sustained intake as the signal to request another full-time complement
position.
10
The second proposed workload would include Psychology courses in the Writer semester and
English and Photography in the Fall semester. Ms. Regimbal's term for this was "ridiculous". In her
view, a workload with three or more subject areas, would mean that one of the three would not be a
true strength. While acknowledging that combinations of disparate courses have been taught by par-
tial load and other faculty in the past, she did not find it acceptable for full-timers who are expected
to bring more depth in the subject area as well as to contribute in the areas of curriculum develop-
ment and program quality review as the program evolves, as well as to participate in student men-
toring. Further, she thought it would unduly restrict the number of candidates who could be short
listed. As well, the screening process for non-full-time faculty is more rigorous than for non-full-
timers, and she indicated it would be very challenging to verify teaching expertise in a teaching
demonstration covering such varied areas.
11
The third workload included Psychology in both semesters, together with a Philosophy or Re-
search course in the Fall semester. There was no objection taken to the combination of Psychology
and Research. However, Ms. Regimbal said that she did not see the combination of Philosophy and
Psychology as a good coupling and she would not post with those two subject areas in the same
posting. She has someone currently teaching philosophy as a partial load faculty member who has a
post-graduate degree in Philosophy, which is the level of expertise she is looking for, rather than
someone who just had some exposure to the subject. Ms. Regimbal's evidence was that some sec-
tions of the courses which were part of the union's proposed workload in 2006 had been picked up
by full-time faculty so that by 2007 there was only one section of Human Relations, taught by non
full-time faculty, and none in 2008, whereas there had been three when the union put together its
workloads. For Abnormal Psychology, two sections of which were in the union's workload, Mr.
Hillock, a full-time faculty member, will be teaching the only section in winter 2008. Similarly, by
the fall of 2007, the research component of the third workload was being done by a full-timer.
12
The union's evidence indicated there were other psychology and sociology courses available in
the fall of 2006 and both semesters of 2007, such as 6 hours of Sociology 1 in Fall 2006 and 9 hours
in winter 2007 as well as 8 hours of organizational psychology in winter 2007 which could be com-
bined in a Sociology/Psychology combination much like a recent posting designed by the College.
13
The fourth workload proposed is a combination of Computer Foundations and Computer De-
sign courses. Students in each stream are required to take the computer Foundations course to stan-
dardize their skill set in this area. The union's evidence was that anyone who could teach the Com-
puter Design course would be capable of teaching the Computer Foundations course. Ms. Regimbal
did not directly dispute that, but maintained that it would be a huge disservice to the faculty and the
program areas for a number of reasons. These included that the faculty who are delivering the com-
puter Foundations course have PC based computers as their field of expertise, while the Computer
Design course is taught on Macintosh computers, using photo and illustration software with a de-
sign orientation, working as a team member in the pre-design stream. The Computer Foundations
teachers work as their own team, looking critically and constructively at the computer foundations
curriculum. This includes efforts at organizing the curriculum to maximize students' chances of re-
ceiving transfer credits for their work in GAS. It was Ms. Regimbal's view that someone with a
computer design orientation would have more affinity with the pre-design teachers and would have
little interest in contributing to the evolution of the Computer Foundations course. There are cur-
rently three full-time Computer Foundations teachers, one of whom, Doug Brandy has release time
for his duties as union president, in an amount equivalent to between 8 and 10 teaching contact
hours.
Collective Agreement Provisions
14
Portions of the collective agreement central to this dispute are as follows:
RECOGNITION
1.01 The Union is recognized as the exclusive collective bargaining agency for
all academic employees of the Colleges engaged as teachers, counsellors and li-
brarians, all as more particularly set out in Article 14, Salaries, except for those
listed below:
(i) Chairs, Department Heads and Directors,
(ii) persons above the rank of Chair, Department Head or Director,
(iii) persons covered by the Memorandum of Agreement with the Ontario Pub-
lic Service Employees Union in the support staff bargaining unit.
(iv) other persons excluded by the legislation, and
(v) teachers, counsellors and librarians employed on a part-time or sessional
basis.
NOTE A: Part-time in this context shall include persons who teach six hours per
week or less.
NOTE B: Sessional in this context shall mean an appointment of not more than
12 months duration in any 24 month period.
STAFFING
...
2.02 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, Par-
tial-load Employees, subject to such operational requirements as the quality of
the program, attainment of the program objectives. the need for special qualifica-
tions, and the market acceptability of the programs to employers, students, and
the community.
2.03 A The College will give preference to the designation of full-time positions
as regular continuing teaching positions rather than sessional teaching positions
including, in particular, positions arising as a result of new post-secondary pro-
grams, subject to such operational requirements as the quality of the programs,
enrolment patterns and expectations, attainment of program objectives, the need
for special qualifications, and the market acceptability of the programs to em-
ployers, students and the community. The College will not abuse sessional ap-
pointments by failing to fill ongoing positions as soon as possible subject to such
operational requirements as the quality of the programs, attainment of program
objectives, the need for special qualifications, and enrolment patterns and expec-
tations.
15
Also referred to in the grievance are Article 3, which provides, among other things, that there
will be no discrimination on the basis of membership in the Union, Article 6, the management rights
clause, which includes the following:
6.01 It is the exclusive function of the Colleges to:
...
(iii) manage the College and, without restricting the generality of the foregoing,
the right to plan, direct and control operations, facilities, programs,
courses, systems and procedures, direct its personnel, determine comple-
ment. organization, methods and the number, location and classification of
personnel required from time to time, the number and location of campuses
and facilities, services to be performed, the scheduling of assignments and
work, the extension, limitation, curtailment, or cessation of operations and
all other rights and responsibilities not specifically modified elsewhere in
this Agreement,
6.02 The Colleges agree that these functions will be exercised in a manner con-
sistent with the provisions of this Agreement.
and Article 27 which contains both a preference for full-time over sessional, partial load and part-
time positions on lay-off and provides that all vacancies of full-time positions will be posted. As
well, Article 26.01 B defines a partial-load employee as a teacher who teaches more than 6 and up
to and including 12 hours per week on a regular basis.
Submissions of the Parties and Conclusions
16
Reviewing the proposed workloads in argument, the union submits that the evidence does not
support a finding that having English teachers teach only English is necessary to achieve consis-
tency across the College. Rather, it is submitted that the evidence that non-full-time faculty are as-
signed to teach English as well as other things supports the contrary conclusion. Similarly with
other combinations criticized by the College, the evidence that they can be taught by the same per-
son, and in most cases have, argues for the acceptance of the viability of the proposed workloads, in
the union's view.
17
In any event, Union counsel observes that the union's proposals for combinations, such as the
mix of Computer Design and Computer Foundations, were for the purpose of showing that the large
number of available hours could be grouped into sensible workloads, but that the College could also
fashion a different workload with the available hours. Further, as to the release time for the union
president, counsel argued that it was not necessary to deduct it from the hours available for the des-
ignation of a full-time position, since it was a regularly recurring quantity of release time, rather
than something specific to an individual, such as sick leave.
18
On behalf of the employer, counsel emphasized that the GAS program uses partial load fac-
ulty extensively, something not seen in the previous sections of the grievance, and has hired six new
full-time faculty since 2001. Counsel characterized this as "not trying to get around Article 2", and
that management was very aware of Article 2 and its obligations to hire accordingly. He submitted
that if management in this program sees growth, they hire, and if it makes sense to hire with more
than a single "teachable", they do, but only with carefully chosen combinations where they can be
assured of proper depth in two areas. Employer counsel submitted that management in this program
hires either within a stream, which should be considered a "mini-program", or for areas of study that
run across the streams, such as English, Computer Foundations, or a combination of Sociology and
Psychology. The College's position is that the union model would see a more erratic configuration
which does not follow these vertical or horizontal lines of study.
19
The College urges that the grievance be dismissed in its entirety because the number of hours
taught by non-full-time faculty in some of the areas requested has decreased in recent years, release
time has not been appropriately factored into the union's calculations, and/or the combinations of
study proposed are not reasonable.
20
This case falls to be decided squarely within Article 2.02, which provides a negotiated prefer-
ence for full-time regular positions over partial load, subject to such operational requirements as the
quality of the program, attainment of the program objectives, the need for special qualifications, and
the market acceptability of the programs to employers, students, and the community. The term "En-
rollment patterns and expectations", an enumerated operational requirement in Article 2.03, which
establishes a companion preference for full-time over sessional positions, does not appear in Article
2.02. Although there is a broad management rights clause in this collective agreement, those rights,
as explicitly provided in Article 6.02, must be exercised in a manner consistent with the other provi-
sions of the collective agreement, including Article 2.02.
21
Having considered all the evidence, I find that the union has established a prima facie case of
a violation of article 2, as there are a sufficient number of hours taught by partial load, which could
be assembled into full-time workloads which are arguably viable, according to the knowledgeable
evidence of the union witnesses. Further, with the exception of the Computer Foundations and
Computer Design combination, they group courses that have been assigned to an individual faculty
member by the College in the past, albeit not for an ongoing full-time position. The onus then shifts
to the College and what it puts forward as operational requirements for not designating the hours as
fulltime rather than partial load positions.
22
The central issue then becomes whether the explanations offered by the College for the status
quo, which involves a large number of hours taught by partial load faculty, amount to operational
requirements. This is essentially a question of fact, although considerable deference is afforded to
the assessment made by management in this regard. The inquiry is not a comparison of the wisdom
of the scenarios proposed by each of the parties. It is whether there exist operational requirements
which trump the negotiated preference for full-time positions.
23
It is a basic principle of contract interpretation that the words of the collective agreement are
to be taken in their ordinary meaning. The term operational requirements, connotes something nec-
essary to the operation, for instance something without which the College cannot attain its program
objectives or market acceptability, to paraphrase Arbitrator MacLaren's decision in Fanshawe Col-
lege and OPSEU dated March 2, 1995 at page 4. The wording implies more than individual prefer-
ences or considerations of a less necessary nature. As discussed in Humber College and OPSEU, a
decision of a Board of Arbitration chaired by Arbitrator Howe dated April 12, 1994, the exceptions
for operational requirements ought not to be given a definition that is so expansive that the interpre-
tation risks virtually eliminating the negotiated general rule that preference is to be given for full-
time positions. See, in a similar vein, the discussion of the term in other sectors in respect of the
context of leave provisions in Re Government of Nova Scotia and Nova Scotia Government Em-
ployees Association (1983) 11 L.A.C. (3d) 181 (Christie) and Providence Continuing Care Center
and OPSEU (2007) 91 C.L.A.S. 265 (Nairn).
24
College counsel submitted that where the College reasonably believes that students will get a
better education by hiring a number of partial load faculty rather than a full-timer, the College is
permitted to hire for that depth of experience. In an earlier decision between these parties, Algon-
quin College and OPSEU (Police Foundations Program), dated May 27, 2003, Arbitrator Knopf
found that once the union has demonstrated sufficient work to justify filling a full-time position, it is
up to the College to justify partial load appointments as falling within operational requirements. The
approach to the College's evidence in that case is not compatible with the idea that all that is needed
to establish an operational requirement is the general assertion that there is a reasonable belief that
the students will be better served with one category of faculty rather than another. In that decision,
where the Board was not persuaded that the use of partial load and sessional staff had been ade-
quately justified, a violation of Article 2 was found.
25
The College's evidence and argument in this regard was organized in response to the work-
loads discussed in the union's evidence. Starting with the first of those, the College's position is that
there are not enough hours of English in the union's proposal to make up a full-time load, and that
English teachers only teach English. Further, a combination of English and Ethics is not appropriate
in the College's view because they would be looking for academic credentials in both English and
Philosophy.
26
There are two aspects to the issue of the quantity of hours. One is that there are two full-time
English teachers currently on reduced workloads, for a total of six hours currently replaced by par-
tial load faculty. Union counsel submitted that there would be at least one of the two on a reduced
load for the foreseeable future, a long enough period of time for the purposes of this case. By con-
trast, the College argues that all six hours should be seen as unavailable for contribution to a full-
time workload. For reasons akin to those set out in St. Lawrence College and OPSEU, a decision of
a Board of Arbitration chaired by D.D. Carter, dated June 13, 1997, 1 agree with the College in this
respect. In that case, at page 3, Professor Carter noted as follows:
It is well understood that all leaves of absence are premised on the assumption
that the persons going on leave will be able to return to their former job or its
equivalent if they wish to reclaim the job and are still able to perform it. The fact
that a leave is of indefinite duration does not alter that assumption in any way.
27
It was found that the preservation of those hours through backfilling in order that a full-time
faculty member have a full-time job to return to upon the expiry of a leave can be considered an op-
erational requirement under Article 2. Similarly, on the facts before me, the six hours ought to be
preserved in the event that those faculty members return, creating a valid operational requirement
for holding them out of the equation. The fact that there is an indeterminate duration to the currently
reduced workloads, or that it may be a number of years before one of the faculty members in ques-
tion wishes to resume her full-time hours, is not a sufficient reason to count them as part of a new
and different full-time position. Intentions and circumstances of an individual can change, and it is
in both parties' interest that a position be clearly reserved for those with a temporarily reduced
workload. If the temporary circumstance were to become permanent, then, at that point it would be
appropriate to return the appropriate number of hours to the ongoing calculations required by the
Article 2 preference.
28
However, other aspects of the evidence persuade me that the deduction of the six hours re-
served for the two faculty members with reduced workloads does not resolve the issue of the first
workload in the way the employer argues. First of all, having considered and weighed all the avail-
able evidence, I am persuaded that there are enough hours to warrant a full-time load, even only
considering English courses. College Counsel argued that there were not enough hours in the winter
semester after the deduction of the release time for the reduced load professors, and that Ms. Tha-
nasse had agreed. However, her evidence was that it was not enough with "just those classes", refer-
ring to English 1 and 2. Although the union's proposed workload initially focused on the courses
referred to as English 1 and 2, (ENL 1813 and 1832), which have 15 hours taught by non-full time
faculty in winter 2006, Ms. Thanasse testified that there were also another 9 hours available in an
English course taught in the winter semester known as ENL 1982, Writing for Media and Commu-
nications, which could be combined as well. This aspect of the union's testimony was not chal-
lenged on cross-examination or in the employer's evidence. ENL 1982 is a course listed as being
taught by non-Full time faculty in both the Winter semesters of 2006 and 2007. In any event, in
Winter 2007, after the deduction of the 6 hours for the two professors with reduced workloads,
those courses together amounted to 12 hours, which is enough for a full-time load for a starting pro-
fessor, who would have more time allotted for preparation in the workload formula, although not as
much as a more usual ongoing load. However, with the addition of the ENL 1982 course (or another
course from another discipline), there would be a more standard number of hours. As for the fall
semester of 2006, there are twenty-one hours of English 1, enough for a full-time workload, even
after the deduction of the release time. Some of those were planned for the second workload dis-
cussed below, but given the view I take of it, they would all be available for the first workload.
There are also 21 hours of English 1 for the fall of 2007, even if one does not count the new sec-
tions of English which the College argued should not be included as they were not sure the growth
would be sustained. With those sections, there are 27 hours, more than enough for a single full-time
load.
29
As noted, the College's evidence concerning the combination of English with another course
for a full-time load was that full-time English teachers just teach English. Counsel argued that this
was identical to the situation in Professional Writing, Scriptwriting and English, dealt with in an
earlier portion of this grievance. However, that situation is quite distinguishable from the situation
with GAS. The rationale for accepting the College's argument that the separate identities and objec-
tives of the specialized programs amounted to operational requirements in the first portion of this
case, such that the College was not ordered to post across programs, was due to the separate voca-
tional goals and design of those very specialized programs. Here the situation is very different in
that GAS is a program unto itself with a very varied course mix. Its streams, such as pre-nursing or
pre-justice are intended to prepare students for other programs, or give them post-secondary educa-
tion, such as in the winter intake, without requiring that they specialize even in a preparatory way.
In this context, the argument accepted for the highly specialized programs dealt with in the earlier
decision loses its force. Moreover, the evidence did not establish that requiring full-time English
teachers to teach only English was a requirement of, as in necessary to, the identity, quality, design
or objectives of this much more general program. Nor were there any concerns raised about the ero-
sion of the English department as there were in the first segment of this case.
30
Employer counsel asserted that the College hired English teachers to only teach English for a
reason and that should be respected. However, although the fact that full-time English teachers only
teach English at the moment was not disputed, the rationale for that was not explained in evidence,
and thus I am not persuaded that it has been shown to be an operational requirement that English in
the GAS program cannot be combined with one other course -- a general non-vocational course like
Ethics or any of the many other courses currently taught by partial loaders -- at the option of the
College. Although College counsel made light of the reasons put forward by the union for the com-
bination of English and Ethics, the evidence did not establish that a teacher teaching mainly English
courses, and one other course, including perhaps Ethics, would in any way be hampered in fulfilling
the duties of a full-time professor, which I accept are more extensive than those of a partial load
faculty. In any event, as discussed above, the other evidence indicates that the combination is not
actually necessary to a full-time load.
31
Moreover, at its highest, the proposal was that one course other than English be part of the
load. The displacement of one course from the numerous full-time workloads required to teach Eng-
lish to the large number of GAS students for any of a myriad of purposes such as curriculum review
or committee work would cover the situation, without requiring that the College have a combined
workload, even with the other English course ENL 1982.
32
Further, employer counsel argued that six of the English hours in Winter 2007 were taught by
a true part-timer, i.e. not partial load or sessional, and thus those hours should not be counted, be-
cause Article 2 does not regulate the use of true part-timers. I accept the union's argument in this
respect, that if the release time for the reduced load professors is to be deducted from the available
hours, it is not appropriate to also deduct the part-time hours. Those hours are already out of the
equation for the different reason that they belong to the full-time workload of the professors with
the reduced workload. In my view, the six hours worked by the part-timer in one semester of 2007
are not a significant factor for a further reason. This is because, if the union is right that partial load
workloads should have been combined to create a full-time position the year before, the configura-
tion of non-fulltime hours would have been quite different in 2007, and reduced in quantity, such
that it would be by no means certain that there would have been that part-time portion of the work-
load in the second year.
33
Employer counsel acknowledged that there appeared to be growth in the need for English in
2007. For instance, there were 27 hours of just English 1 in the Fall of 2007, so that even if one sub-
tracts the six hours for the reduced workload faculty and the two new sections brought on by a new
stream and what was referred to as a blip in enrollment, one is left with 15 hours, enough for a full-
time load entirely of English. Counsel for the College argued that the increase in need for English
could not be counted on, and should not be counted towards the union's case because it all occurred
long after the grievance. I agree that the threshold for the union's case has to be met in the earlier
year, but the evidence that the work has not only not evaporated but increased, supports the idea that
such a workload is sustainable in the long term.
34
In sum, it is my finding that the evidence discloses no operational requirement for not prefer-
ring a fulltime position made up of English courses, supplemented if desired with another course for
which the teacher was qualified, such combination to be established by the College.
35
The second proposed workload would involve two psychology courses in the Winter of 2006,
which is not criticized. Rather it is the fact that in the fall semesters it would have to be combined
with Photography and English to make up a full-time workload. The evidence is that the combina-
tion has worked for a partial load faculty member, and I am not persuaded that in a general program
such as GAS the combination is actually "ridiculous", as the College termed the combination in evi-
dence and argument, since the College currently has faculty qualified to teach the combination.
However, on balance, the College's assessment that posting for such a workload could unduly re-
strict the pool of qualified applicants, and that it would be difficult for a single individual to con-
tribute to three such disparate areas in the way expected of a full-timer, fits within the operational
requirement of quality of the program to the extent that 1 accept the College's submission that it
should not be required to post this workload.
36
The third workload proposed would combine two areas, something the College has done in its
recent postings. The proposed combination, Philosophy and Psychology, although not one that has
been posted in the past, is a grouping that has been taught by non full-timers. As well, Mr. Hillock,
the former coordinator of the program, who has been in the program for over 20 years and has
taught many combinations of courses, including sociology and psychology, testified that he could
teach Foundations of Philosophy, the course proposed, and had in fact prepared the first course out-
line for Foundations of Philosophy. Ms. Regimbal did not agree that psychology and philosophy
were a good combination, and said she would not post for those two areas in the same posting, al-
though she did not elaborate on what was wrong with the combination or how it was incompatible
with operational requirements. The most specific part of the College's evidence in this respect was
that they have someone with a post graduate degree in philosophy which adds a lot of value. How-
ever, there is no evidence that the College would be unable to attract someone with a post-graduate
degree in philosophy if they advertised for that, together with psychology, or any other "teachable"
the College wished to pair with it.
37
In any event, the evidence is persuasive that the equivalent of a full-time workload exists in
combining Psychology and social science courses, so that the combination with Philosophy is not
necessary. Ms. Thanasse testified that there were various combinations of Psychology and social
science courses available which were not criticized in the College's evidence or argument. It is a fair
inference from the fact that the College has hired for the Psychology/Sociology combination in the
recent past that there is no operational requirement standing in the way of such a combination.
38
Working through the semesters in evidence then, for Winter 2006, there are 34 hours of Psy-
chology available, 18 from the original workload proposed and 16 from the second workload dis-
cussed above. That would be enough for two full-time Psychology workloads in that semester, but
the winter semester of 2006 only presents enough for one workload of psychology, together with
research, a combination that was not criticized by the College.
39
Because the research course was taught by a full-time faculty member in 2007, however, em-
ployer counsel suggested that this course should be removed from the equation. Given the fluidity
of the workloads shown in the evidence, the fact that the full-time workload would be made up of
different courses in different semesters is not a sufficient answer to the existence of a continuing
full-time workload in my view. There are also a number of social science courses in that semester,
including 6 hours of Sociology 1 (Soc 1722) which was not specifically addressed in evidence for
that semester, but was identified without contradiction for the following semester, Winter 2007, as a
viable combination with the psychology courses. In the winter 2007, Ms. Thanasse identified 8
hours of Organizational Psychology, 3 hours each of Abnormal Psychology and Introduction to
Group Dynamics. as well as 9 hours of Sociology 1, as well as several other social science courses,
If the College decided to assign a combination of Psychology and Philosophy to someone qualified
in both areas, there are also 6 hours of World Philosophies.
40
Moving into the fall of 2007, there are 16 hours of Introduction to Psychology which repre-
sents a full-time workload just in Psychology, making it unnecessary to combine them with the 12
other hours of social science courses or the 6 available hours of Foundations of Philosophy.
41
Employer counsel submitted that the evidence about the winter of 2008 indicated that there
would be fewer Psychology hours available and thus the workload proposed had disappeared. While
the evidence indicates that Human Relations and Abnormal Psychology, which were part of the
originally proposed workload were to be taught by full-time faculty in winter 2008, there was no
evidence that this was also true for Child Development, Organizational Psychology or the other So-
cial science courses mentioned above as viable combinations. In general, there is insufficient evi-
dence to find that there is not a viable full-time load in the Psychology/Social Science area in 2008.
Further, the evidence concerning 2008 does not oust the findings that for two years there was a vi-
able workload of psychology and compatible social science courses, a sufficient length of time in
view of the Article 2 jurisprudence such as Fanshawe College (MacLaren) and Humber College
(Howe), both cited above.
42
Moving on to the fourth proposed workload, as noted above, the employer objects on the basis
that the combination of courses is undesirable, and the number of hours is insufficient for a full-time
workload after the release time for Doug Brandy, a full-time teacher of Computer Foundations and
currently union president. Further to my remarks on the issue of replacement hours for release time
for coordinators in the first decision concerning this grievance, dated June 8, 2007, it is my view
that whether or not release time should be deducted is a question of fact to be considered in the cir-
cumstances of each case. Counsel for the union likens the release time for the union president to the
coordinator duties commented on in that first portion of this grievance. By contrast, employer coun-
sel refers to the St. Lawrence (Carter) decision, cited above, as well as Fanshawe College and OP-
SEU (Burjaw), a decision of Arbitrator Howard D. Brown, dated August 31, 2006, for the proposi-
tion that the College is within its rights to hold a position open and/or treat release time replacement
hours as unavailable for consolidation into a full-time position under Article 2. In the Fanshawe
College decision, a pp. 16 and 18, Arbitrator Brown found that replacement hours for temporary
relief from full time duties should not be counted to show the existence of a full time position,
where, but for those particular circumstances, they would have been taught by full-time staff. It re-
mains my view that especially in a program with relatively homogeneous workloads and recurring
coordinator release time, it may well be, as a factual matter, appropriate to include coordinator du-
ties as part of the body if work to which the Article 2 preference attaches. Nonetheless, on the facts
of this portion of the case, the release hours for Mr. Brandy, the local union president, are much
more akin to the situation in the St. Lawrence Carter) decision which dealt with a leave for a union
steward. I accept that release time for the union president will be a recurring part of the body of
work, which may be examined under Article 2. However, Mr. Brandy was described as a full-time
professor of Computer Foundations, which is supported by his 2006 standard workload forms,
which were in evidence. There was some suggestion that he was originally hired to teach other
things, and that he might also teach courses from Career and College Preparation. Nonetheless, the
evidence supports the conclusion that the full-time position from which he has received release time
is in Computer Foundations, something that the evidence does not suggest would be interchange-
able with other workloads in this program, or more broadly in the College, since it is unknown
whether any future local union president will come from GAS or be qualified to teach a computer
course.
43
The evidence is that Mr. Brandy's release time for union duties was the equivalent of between
8 and 10 teaching contact hours per semester which would reduce the combined computer workload
proposed for the winters of 2006 and 2007 to below the level of a full-time workload. Although the
proposed workloads for the fall semesters would be numerically viable with the course combination
of Computer Design and Computer Foundations, the union did not argue that a workload should be
designated full-time if it was only viable in one semester of each year.
44
As a result, consistent with the St. Lawrence College (Carter) decision, cited above, I find that
holding out hours to maintain a full-time position for the current union president is within the Col-
lege's operational requirements, and therefore there is an insufficient workload in the computer area
to require the posting of the fourth proposed workload. It is thus unnecessary to decide whether the
College's concerns about the combination of Computer Design and Computer Foundations amounts
to an operational requirement.
45
To summarize, the union has established a prima facie case for four additional full-time posi-
tions. However, the College has established operational requirements for not designating two of
those as fulltime positions. For the other two workloads, composed mainly of English and Psychol-
ogy, the evidence does not establish operational requirements for the College's assignment of the
hours as partial load rather than as a designated full-time position. I am persuaded that the staffing
situation in GAS in 2006 and 2007 was in breach of Article 2 to the extent of two full-time posi-
tions, and that, as a result, the full-time complement of the GAS program should be increased by
two full-time positions. No objection was taken to the union's request that positions should be post-
ed within a semester so that current staff could apply as internal applicants. Accordingly, two full-
time postings should be done prior to the end of the current semester, or at such other time as the
parties may agree. The College is not limited to the union's proposed workloads in structuring the
new full-time positions. The union is entitled to any difference in dues that would have been remit-
ted for two full-time positions, rather than the partial load positions that existed instead since the
beginning of 2006.
46
The grievance is allowed to the extent indicated. I will remain seized to deal with any issues of
implementation or quantification that the parties are unable to resolve themselves.
Dated this 24th day of March, 2008.
Kathleen G. O'Neil, Single Arbitrator