HomeMy WebLinkAboutUnion 81-01-16
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IN THE MATTER OF AN ARBITRATION
BETWEEN:
ALGONQUIN COLLEGE
AND
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
AND IN THE MATTER OF A GRIEVANCE RELATING TO CERTAIN INSTRUCTIONAL
ASSIGNMENTS.
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!{Ii.' ,
BOARD OF ARBITRATION:
J.F.W. Weatherill, Chairman
R. Cochrane,.Union Nominee
R. Hubert, Company Norni~ee
Hearings in this matter were held at Ottawa on September 4 and
November 26, and at Toronto on December 1, 1980.
C. Pa1iare for the union
F.G. Hamilton, Q.C. for the employer
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AHARD
As 3Ct out in the Interim Award in this matter, issued
on July 2, lQ80, .-t:his is a group grievance relating to .assignments
made for' the period of" May 'and June, 1978.
While there is some conflict in the evidence which was
presented to the board, the facts necessary for ~he determination
of the issue 'of principle which was put before us are not sig-
nificantly in dispute. In setting out th~ nature of the dispute
l'le rely in part0~-:'\lhat vIas said in the Int2rim AHard, but
qualify" those- stat'ements" in the light of" the evidence" and
arg.tlffient~. ,1?;re~e-9.!:ed, ~ t..~l1~..:"f"l:lx:ther. hear ipg.s. .
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The grievors are "Group 111 ("Academic post-Secondary")
teachers in the Business, Applied Arts and Technology and Trades
Divisions of the College. Their "academic year" as contemplated
by article 4.03 of the coll~ctive agreement is from September 1
to June 30. While year-round operation of the College is also
contemplated by article 4.03, no question as to that arises in this
case.
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Most of the actual teaching assignments given the
grievors are carried Olj.t beb.,een September and April.
Most classes in Pacademic post~secondary" courses in
the grievors I divisions are over by then. There follow.
the writing and marking of examinations, or perhaps
the submission of other material for evaluation. The
teachers must then mark the examinations, evaluate the
students, and participate in whatever meetings may be
necessary to. permit the determination of the final marks
. to each student... That,. process is usually co~pleted by
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. about the tenth of May. After that, for the balance of
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the academic year, teachers engage (according to time-
tables 1;.,hich vary from one department to another) in various
activities including tidying up the "loose endslt of the
year just finishing, preparing courses for the year to
come, or engaging in some form of professional development
whether on an individual or a departmental basis. During
the balance of May and for the month of June, however,
there are (for most of the Group 1 teachers in the divisions
referred to), no more classes.
There are exceptions. Some Group 1 teachers in
these divisions are involved in the continuing-intake
"Manpower" programs offered by the College. Othersmay
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have contiriuing assignments in the Continuing Educution
Division, or 1n the Continuing Educatio~ section of their own
division. In some cases, such teachers may be assigned to
teach continuing education cla~ses, whether at night or
othenvise I during Nay and June as \-lell z:s at other times.
Where such assignnlents constitute a part of the X"f~gular
instructional assiglh~cnts given the teaGhers ~t the outset
of the academic year, no question aris~s either 0S to the
right of the College to ma~e ~he assign~e~t or as t~ the
,paymen:t ther.efor....., T.hese.matters are,fully.deall:. \-;ith in
Article 4.
In the instant case, . \':e. arecon~,::rnedonly .w:itp
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those Group 1 teachers whose regular teaching assig~~ents
had concluded by the start of the May-June period in 1978,
and who would normally have expected to be engaged in the
various marking, preparing and studying activities described
above, during that period.
For some ten years, it had been the practice of the
college to offer to teachers in the position of the grievors
the opportunity to teach various continuing education courses
during the May-June period. This work, which seems usually to
have involved teaching at night, was in addition to the various
other dutie~ which they had at that time. Teachers were under
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no obligation to undertake such courses. It would
seem that some were asked and some were notr and that
of those who were asked, some did and some did not
accept. Those who did accept this continuing education
work were paid for it. The basis of payment is not clear,
but it would appear not to have been a rate set out in
the collective agreement, although it may have been
related to such a rate. It is important to note that,
in most cases at least, ~hese May-June continuing
educa.tion.classes did not. involve. the teachers concerned ,. ....
in "?v~rt-iItl~" worjc Of. the sort contemplat.ed by. article 4.
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It was simply recognized that for teachers in:.this grouPr
the teaching of such continuing education. courses was
something which they might, if they wished (and if they
were asked), fit in, for payment, to their available
time in the May-June period.
In the spring of 1978 the College again offered certain
continuing education classes to be given during the May-
June period. In some cases it had already made arrangements
with Group 1 teachers to teach continuing education classes
in May and June, and in some of those cases the teachers
concerned had already begun preparation of those courses.
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Such commitments, it would appear, were honoured, Gnd.those
teachers taught the courses and Here paid far them as had
been the case in the past. As a general matter, hm'lever,
the College announoed that it w6uld re~uire certain teachers
to teach continuing education classes in May and June, and
that it would not make any extra payment in respect thereof,
except where the Ifovertirne"provisions of article 4 of the
collective agreement applied.
..,..:., It':appears' that',' during 1977" .and:'especiaIly' in the fall '. .
". of :.tha.t. .yea];:" #-. .t.he...Col).ege.:had made 50me IJ\ent.ion.to the. then" c."
union president of the possibility that it might, as an
economy measure, not continue the old arrangement, but
require the teachers to perform the work in question without
extra pay. However that may be, and whatever
the expected and perhaps unfulfilled role of the then union
president may have been, the issue before us is simply whether
or ~ot the college had the right to do what it did with respect
to this group of teachers. There was certainly no express
agreement with the union as such in this regard, and there is no
suggestion that there was amendment to the collective agreement
or any other formal arrangement with respect to the matter. If
the college was not entitled to take the position it did, its
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announcement of its intention, however,public, would
not alter the case.
The grievors were selected to teach continuing
education classes in May and June, 1978, following the
completion of their regular program of academic post-
secondary courses. In some cases, this involved
certain
hardships in terms of altering plans for research projects,
course preparation, and the like. In general, an attempt
,.waS,:q1ade ,to,make. $uc.h.,ass,ignments ,to ,those. ina.department "
. " WhO.,~l~gh~..,,~~ ~,~,~ .,,~,:as.t. ~~v::r.~e:~:r,., ~ffec~ed, or who ha.d.
perhaps had a lesser teaching load throughout the year.
~ .~: - '. ;
In some cases it was said that efforts would be made to
redress the work-load balance the following Year. It
may be observed that while we are sure that ,the several
department chairmen did their best to be fair in this
reagrd, the standards applied were not those of the
collective agreement, which deals in article 4 with the matter
of teaching load. In particular it is not contemplated that
equity is to be, sought only on a dep~rtmental basis, nor
over a period of more than one academic year.
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The union relies particularly on articles 4 and 8.09
of the collective agreement.
Those -articles were set out ~n
the Interim Award in this matter r but i-t t.,ill be l1seful to
repeat them here:
INSTRUcrIONAL ASS rG N1HE NTS
4.01 Tne <;oilege:; will estilolish teaching schedule:> that adhere
to the- following:
Grollp 1 Group2
(Ac;Jdcmi;;;
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Sc.:onJJcy)
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. M;lXi~um:teaohillghou-rsperweck_ . .
IvIJ.Ximum teaching hours per year
Ma;.:imum teachi:1g hours for
Nursing per year
Maximum contact days per. year
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700
2l ...
900
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180
175
190
The maximum tcaching hours per week shari be determined on
<l rollinz avera~e for a period not exceeding ti':ree months.
E<lch contact day (being a day in which one or more te.:lching
hours occur) or part thereof assigned by the College and per-
formed in excess of the annual maximum number of contact
days for the Group concerned as set out above shalt be p<:lid on
the basis of I J 180th of the employee's annual salary for Group
1 and 11 j 90th of the employee's annual salary for Group 2,
provided, however. any payments for work in excess of time
limits will not be pyrnmided..
4.02 (a) Recognizing the unique characteristics of each
College, the diversity of programmes and instructional
techniques and the consequent range and variety of individual
assignments, the parties agree that within three. (3) weeks
following the publishing of instructional assignments in Sep.-
tember, a College Instructional Assignment Committee of six
(6) persons (three (3) persons to be appointed by each part)"
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and to include the College President or Senior Administrative'
Academic Officer) shall meet to:
(i) consider the application of Section 4.01 to the'
instructional a$signments across the C?llege;
(ii) resolve apparent inequitable instructional assign~
ments;
(iii) consider a claim by an individual tn:l.t his instruc~
tiona1 assignment is inequitable.
The Committee shall in its considerations have regard
to such variables affecting assignmec.ts as:
(a) nature and number of subj~ts to be taught;
(b) level of teaching and business experience of
the faculty and availability of technical und other resource
assistance;
(c) nel;.~.s.;ary academic p.'ejJa~at:on and student.
contact;
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(d) exami.riati6rimarktngdand assessing responsi. .
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bilities;
. :" (el size:of class;
(f) instructional mode(s);
(g) assignments ancillary
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to instructional acti.
vitie5;
. (h) previously assig."'1ed schedules;
(i) other assignments;
(j) necessary excessive travel time between assign-
ments.
. (b) A majority decisibn of the College Committee shall .
be binding upon the parties and the employee(s) concerned.
(e) If the teache~is complaint is not resolved by the:
Committee, he may file a grievance as to the application of
Section 4.01 within ten (to) days of recei~ing the Committee's.
decision referred to in. paragraph (b) above and refcr the ~
gril:v:ml:e to .:lrbiu":llion as referred [0 in Section 9.03.
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':.OJ 7he ~'::cm;~ ye:u s~.Jil he l:n (10) ;nonth, in cur:it;on
am! 51ml!, (0 the C-'t!'.:."'l! it be r ,--;L,ibie in the scv\:r:l.l Co~:~:-:~'i 10
do so, be from 1st S<.-p{anber [0 the foUowir.~ 30th JU:1::. Th::
academic ye~r shill in any event perr:'lir year round o;::.:~ti;Jn
~nd where <: Gollege d~erm.i.nes the need5 of any prograrnm:.
otherwise, then the s;:h~uIiI\:! of a.memb.::r in one or both of
the- months of July and August sh~ll. be on a consent or
rotJ.tional basis.
4.C4-The assigned hours of work for Ub:.lri.:lns and Coun-
s.:ilors shall normallY he thjrty~fivc (35) hours po;r week but
sl1~U not be formaliy assigned in exc;:,. ofthirty~five (35) hours
pc:r week.
;".<":\ .
1,.05 The parties ugree that no college shall circumvent tlw
provisioilS of this Article by arr~nzing for unreasonabl~
,0.;., .teacmngloads on the-'part oLpei:son5whoare~cluded fro'm
, or not included- in the academic bat gaining unit. ' , - - , ' -
4.06 During the teaching schedule, employees shat! not tab,
~' , " . - '--~ny" employment. consulting 'ohe~chin3 'activity outside" the .
College except with the prior wriw:n consent of this D~part-
me:nt Head. -
4.07 Where the Colleges require the perfonnance of work
b:.>yond the limits herein estab!i$hed, the Colleges shall provide
MY suC'h employee with propo::r work facilities during such
period.
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8.09 Extension, and Continu!ng Education programmes and
courses which are not included in the regllbr :Issignmcnr of
full-time employees are excluded from the application of this
Article for all purposes.
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It may be said at once that a "Group 1" teacher is not
necessarily restricted to. assignment to "post-secondary"
courses. Most such teachers, it seems, are engaged in such
~
work, but as a general matter nothing prevents their assign-
ment to the other teaching areas in \'lhich the College is
involved. Had the classes in question been included in the
grievors' instructional assignments published in Septe~ber
1977, then (subject to the right of recourse referred to in
article 4.02 of the collective agreement, ~nd subject to
. .
. 'payment or't-overtime":;' if'approprlateY/' there'could' hav~', been >, ".,."
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., no.valid.complaint.:'
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It is, nevertheless, the case that extension and continuing
education'programmes and courses are of a special nature, and
that those engaged in them may, in some circumstances, receive
different treatment under the collective agreement from those
who are not. This is particularly ,clear from article 8.09 of
the collective agreement, which excludes such programmes and
courses from the application of article 8 (the seniority pro-
vision) f \'!here they "are not included in the regular assignment
of full-time employees".
In the instant case the grievors were indeed "assignedU
continuing education courses, but these courses were clearly
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.. not par.t of their "regular" assignment. They ,.;ere
clearly not part of the procedure i..:hich the College
had follQf,.'led in,past years, but more importantly they
\'lere not part of the instructional assignments nlade
in September of the academic year.
It is for that
reason, in our view, that the assignments in question
.......ere not part of the grievors I "regular" assignments,
and "'Tere thus not "'lithin the scope of the positions.
they held to which the seniority provisions applied. The
... . continuing education courses - in the particula.r circum-
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stances involved here, and for thes8 particular tcac~ers
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- t,~rere a special case J as the collce t ive agrc~ner:.t. con tf~r:1~
plated.
In insisting.as we do on the importance of article
4.02(a), we do not suggest that no variations of instructional
, '
assignments once published may be made.
: Apart from
. that, it would be .our view that the exercise of management
functions described in article 7 would require the College
from time to time to alter instructional assignments to
meet the needs of particular situations. This is not to
say, however, ~hat as the end of the regularly-assigned
teaching period approaches, and when the published instruc-.
tional assignments have been largely performed, the College
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may simply add to them a set of assignments of a different
nature, to be performed without pay.
Article 4.02(a), as we have noted, contemplates the
publishing of instructional assignments in September. The
"application" of such assignments "across the College" ~s
to be considered by a College Instructional Assignments
Committee, and the variables which the Committee is to bear
in mind are set out in article 4.02. Even apart from such
alterations as. the Cc>In~nit~e~. (ol':...ultinlatelYL a board of.. .
".',_".:.>'.i,
arbitration) might effect, it would still, as \'le have suggested,
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be open to the College to make appropriate arid proper variations.
The present case, as we find, g6es beyond that, and involves
the assignment of work \vhich, while not "overtime", was not
included in the regular assignments on which the grievors were
entitled to rely.
For the foregoing reasons it is our conclusion that the
assignments in question were, in the circumstances of this
case, in violation of the collective agreement. It is our
award that the grievors be paid in respect of the continuing
education courses taught in the May-June period of 1978.
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The compensation to be paid is to be calculated on
the basis of the pay:uent which ,;..'"ould helve been made
had the practice of previous years beenfollo\'l2.d, and
not necessarily on the basis of the "overtime"
provisions of the collectivc'agreementjcxccpt in cases
to \'Thich these might apply. This board retains j uris-
, dict~Qn to deal with questions of compensation in the
event the parties are'unable to agree thereon.
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Chairman
"R.A. COCHRANEII
Union Nominee
Employer Nominee
DISSENT
I do not agree that the College has violated the terms
of the Agreement.
In this case, the College was faced with further budget
reductions and as one measure designed to alleviate the
financial constraints, assigned post-secondary teachers
to teach Continuing Education Programmes in May and JUne.
While this action was different.from past practice, the
intention to change was discussed with the Union and
the formally communicated by the President of the College
on April 4, 1978.
Principles designed to achieve fairness and equity in
such assignments were established and co~~unicated-
to Department Heads. The result of this action was to
minimize the number of teachers hired from outside
to teach. Continuing Education and the saving of tHO
to three full-tirne,positions, as opposed to a staff
reduction.
. _ Th~ i~suetobe c:1et.ermined is whether or not the action
.. of the: Colle'ge was~cdhtra:.rY '-Co' -'ther'te:tms'of 'the' Agreement.
'Article, 7.." enables the College' to generally manage the, ,
affairs of.the inst~tution, including the right to plan,
direct and control operations, determine complement,
the scheduling of assignments and work provided such
rights are not specifically modified by the Agreement.
The scheduling of staff assignments in an efficient
and appropriate manner, consistent with the terms of
the Agreement is a function management must' perform.
.
Consider then the action of the College in the light
of other pertinent sections of the Agreement.
Article 4.016 establishes that teaching schedules will
adhere to the hours so specified. Should there be a
contact day or part thereof assigned by the College and
performed in excess of the annual maximum for the specific
Group, the method of compensation is set forth.
The facts of this grievance established that the grievors
did not exceed the maximum hours specified in Article
4.01,' including the time_teaching in Continuous Education
and therefore there is no basis under this clause to award
compensation or claim violation of the Agreement.
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When establishing teaching schedules, Article 4.03 specifies
the academic year to be ten months in duration, and shall
to the extent it be feasible to do so, be from 1st
Septe2ber to the following 30th June.
Article 4.03. clearly id~ntifies a potential ten month
teaching period and. evidence of the College established that
a nlliuber of teachers are 50 assigned. The only restriction
to this provision relates to schedu~ing in July and August
which shall be on a consent or rotational basis. The
scheduling of the grievors to tea~h certain hours in May
.and June is consistent ,.;ith the provisions of Article
4.03. .
Article 4.02. recognizes the diversity of programmes and
instructional techniques and the consequent range and
variety of individual assignemtns that occur in managing
the affairs of the College. This Article sets out the
procedure to be followed in considering the application
of Section 4.01, to resolve ~pparent inequitable instructional
., .;:...,:.';assingrnents.,.and,to.. con~i.4er a;.claim:by:an.individu9-.l..." .,.
that his instructional assignment is inequitable.
-.'The. A\qard.tak.es the:position. il:t:'theoutset:tha:t "\"here
such assignments constitute a part of the regular in-
structional assignment given the teachers at the outset
of the academic year, no question arises either as to the
right of the College to make the assignment or as to the
payment therefor.
Article 4.02. refers to publishing of instructional
assignments in September and the work of the College
Instructional Assignment Committee following that period.
The Award goes on to acknowledge the importance of
Article 4.02 (a) and is clear and correct in stating that
",1e do not suggest that no va.riationsof instructional
assi gumen ts once published may be made. Apart from that,
it would be our view that the exercise of management
functions described in Article 7 would require the College
from time to time to alter instructional assignments to
meet the n'eeds of particular situations."
The Award concludes that ueven apart from such alterations
as the Committee might effect, it would still, as we have
suggested, be open to the College to make appropriate
and proper variationsll. That reasoning in my view is correct.
There must be opportuni ty for the College to make instructional
assignments at various times during the year to meet the
needs of the College in offering a wide variety of educational
programmes. While the award upholds the right to rnalce _.
variations in assignments, the ultimate conclusion then goes
on to say that these particular variations .are invalid because
of when they were made.
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This conclusion would seem to be contradictory to the
previous statements acknowledging the right to the College
to make assignments to meet the needs of particular situations.
Let us further examine. the facts.
In evidence the College outlined the basis of establishing
schedules and it is clear that all schedules are not
established in September and never have been.
Winter schedules, for example, are normally determined
in November.
One must consider the practical realities of the situation
as well as the provisions of the Agreement.
In evidence the College outlined the broad range of
courses offered in Continuous Education and the fact that the
decision as to whether or not the course will be offered
is only made following enrollment. The particular courses
over which this dispute arose are offered in Spring, and it
is not until the first week in May that a final decision
..is"rnadeL:'At times 'basedh'on.the previous'..en-rollmentin, .....c -,.... ..,.... ;.
other years, the College may have a good idea of what to
...expect, but. sucll speculation. would be most imprac:ticalas
a basis for confirming teaching assignments at an early
date and would of course be of no value for new or changed.
programmes.
It would be highly impractical to give instructional assign-
ments for such courses earlier in the year, have the teacher
possibly undertake.some preparatory work and then to cancel
the assignment because of the lack of student enrollments.
Such a practice would be equally upsetting to the teacher
particul~rly where he has planned his time accord~ngly.
If the College is to use present teachers to handle such
classes, the most practical solution is to only make the
assignment when sufficient enrollment is ensured.
The Award suggests that College is improper in adding
new assignments when those assignments made earlier in the
year are nearing completion. In this respect, the College
must be in a position to consider, plan, and develop
programmes throughout the year to improve the stability
and/or growth of the College. Such programmes cannot for a
variety of reasons dealt with in evidence be determined
in advance for specific times during the year. I would
find that the Agreement does not restrict the College to making
instructional assignments only at one time and their action
is this particular grievance does not violate the terms
of Article 4.02.
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The College endeavoured to act fairly in what they did,
recogniz.ing the exigencies of the situation. The teacher
has protection against an unreasonable work load,
without overtime pay, based on the protection provided
in Article 4.01.
.Reference is made in the award .to Article 8.09 of the
Agreement. I do not believe that anything in this
grievance turns on or is affected by the provisions
.of 8.09. This provision only has meaning .,..;rhen considering
the application of" the Seniority Article. I aCknO\'lledge
that the Article spells out different seniority treatment
",hen Continuing Education. programinas . are not part of a
teachers regular assignment. . One cannot conclude from
this provision that there is a restriction on scheduling
teachers to teach in Continuing .Education during the year..
For these reasons I would find that the action of the
Colleg'~ ~vere in.conforIPi ty \vi th the terms of the l\greeITan t..
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R.A. Hubert
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February 9, 1981
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