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HomeMy WebLinkAboutUnion 03-12-16 .....-r V_I _VV:;S --. -- .....-- ...-..... ~-..... .......,-- "t::I vv.. ~ ufX. (to) aDO<~ IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE (the "College/Employer') -and - ONTARIO PUBUC SERVICE EMPLOYEES UNION (the "Unionll) AND IN THE MATTER OF UNION GRIEVANCE #01C054 - Re PDOs BOARD OF ARBITRAnON Paula Knopf. Chair R. J. Gallivan, College Nominee John McManus, Union Nominee AWARD APPEARANCES For the College Margaret Szilassy, Counsel Linda Ballantyne, Director Human Resources LindaSkinkle, Human Resources Horace Knight, Human Resources Gavin J. Leeb. Counsel Gary Fordyce, Chief Steward Tom Geldard. Steward For the Union Hearing in this matter was held in London. Ontario on September 15, 16 and October 21, 2003 V...., V.' _vv"'Z ~~.. OIiV ..."'-.., "':II:~V VVV VV_V ,. .... ..: ,~ .f:anshawe College offers free Professional Development Opportunities (PDOs) or training. sessions for its academic and support staff. These programs cover a variety of subject areas relevant to the College community, such as . facilitation skills, computer skills and secondary school reform, to name a few. Typically, they are presented in a workshop format over a one to two hour period. Attendance is voluntary and no academic credit is given to the attendees. These programmes have been offered for over a decade. Members of the bargaining unit who presented the sessions were never paid for the time involved in their preparation or presentation. However, the Human Resources Department distributed "gift certificates" redeemable at local stores or businesses to the Professors in return for presenting a PDO. In the past, the College has taken the position that this work was done on a voluntary basis and would not be recognized under any provision in the standard Workload Formula (SWF). However, during the course of this arbitration the College revised its position and accepted that the presentation of the workshops should be recognized as a "complementary function)' under the colle~ive agreement and therefore credited on a SWF as part of a teacher's workload. The College also indicated that it is prepared to give such recognition retroactive to the filing of this grievance in November 2000. This is a Union grievanc~ asserting that the work should be credited as a "teaching contact hour".' The difference b~tween a "teaching contact hour" and "complementary functions" is important in the complex workload formula in the collective agreement. Therefore, the primary issue in this case has become whether the offering of these PDOs amounts to "teaching" or "complementary" functions . \ under the collective agreement. The secondary issues that arise concern whether the giving of the gift certificate violates the Union recognition clause and what . 1. The formulation of this case as a Union Grlevance was affirmed in a Preliminary Award issued. on December 17.2002, [RJ. Gallivan dissented]. -2- should be the nature and scope of any possible remedies. These issues can be summarized as follows: (1) Is there a violation of Article 1 concerning the alleged failure to recognize the Union with respect to the engagement of bargaining unit members 'to provide PDOs? (2) Is there a violation of Article 6.02 conCerning management's obligatioR to exercise its management rights in accordance with the collective agreement, specifically Articles 1 and 11? (3) Is there a violation of the wqrkload provisions in Article 11 with regard to the delivery of PDOs by bargaining unit members? (4) Is there any entitlement to remedies for the remaining individuals named in the grievance and referred to in the evidence? . (5) Is there any entitlement to remedies for the bargaining unit as a whole with regard to the cease and desist orders? (6) Is there any entitlement to any union dues that may be generated as a percentage of any compensation awarded to bargaining unit members? Teaching is not defined in the collective agreement However, the relevant provisions to this case are: Article 1 RECOGNITION 1.01 The Union is recognized as the exclusive bargaining agency for all academic employees of the Colleges engaged as teachers, counsellors and librarians, all as more particularly set out in Article 14, Salaries, except for those listed below: v..., V_I _vv"Z .......OIiV ...,,~ -Z"'V WVV VVMV ., -3- (iii) persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit, . 6.02 The COlleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. 11.01 A Each teacher shall have a workload that adheres to the provisions of this Article. 11.01B 1 Total workload assigned and attributed by the College to a teacher shall no~ exceed 44 hours in any week for up to 36 weeks in which there are teaching contact hours for teachers in post-secondary programs and for up to 38 weeks in which there are teaching contact hours in the case of teachers not in post- secondary programs. The balance of the academic year shall be reserved for complementary functions and professional development. 11.01 B 2 A "teaching. contact hour" is a College scheduled teaching hour assigned to the teacher by the College. 11.01 E 2 For purposes of the formula: (iii) "In-process evaluation and feedback" is evaluation performed within the teaching contact hour. 11.01 F Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher by the College, Hours for such functions shall be attributed on an hour for hour basis. 11.02 A 1 (a) Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload with the teacher and complete the SWF, ...... to be provided by the College. The supervisor shall give a copy to the teacher not later than six weeks prior to the beginning of the period covered by the timetable excluding holidays and vacations. It is recognized that if the SWF is "CIyyy -4- subsequently revised by the College, it ~m not be done without prior consultation with the teacher. CLASS DEFINITION. . PROFESSOR . Under the direction of. the senior academic officer of the College or designate, a Professor is responsible for providing academic leadership and for developing an effective environment for students. This includes: . a) The designlrevision/updating of courses; including: . b) The teaching of assigned courses, including: - ensuring student awareness of course objectives, approach and evaluation techniques; - carrying out regularly scheduled instruction; - tutoring and academic counselling of students; providing a learning environment Which makes effective use of available resources, work experience and field trips; - evaluating student progress/achievement and assuming responsibility for overall assessment of the student's work within assigned courses. c) The provision of academic leadership, including: . providing guidance to Instructors relative to the Instructors' teaching assignments. - participating in the work of curriculum and other consultative committees as requested. " -5- It should be noted that several preliminary objections were raised by the College with regard to this grievance. These were resolved in the Preliminary Award where~n this Board of Arbitration asserted and defined its jurisdiction. It can also be noted that the College also raised Article 11.08 as both a preliminary objection and a defence to the grievance. The majority of the Board of Arbitration concluded at page 160fthe Preliminary Award: . "Determ ining whether the Article 11. 08 defence can prevail can only be determined after consideration of all the relevant evidence and arguments," When the case proceeded to a hearing on the merits, the College did not pursue lithe Article 11.08 defence". The Union's evidence about the development, content and methodology of POOs was presented through David Gillis. From 1975 to 2002 he was a professor teaching subjects such as professional communications, report writing, literature and music, He recently retired from the College. In the last decade. of his teaching, he offered several PDOs. In the fall of 2000 he ran a one-hour workshop entitled "Add Life to Your Presentations - Capture Pictures Without Film." The pamphlet listing all the PDOs for the fall 2000 term described Professor Gillis' workshop as follows: This seminar will focus on the features and functions of digital cameras. Those interested in . learning more about capturing pictures without film and"incorporating digital data into presentations will benefit from this session. You will leave with a working knowledge of the camera and a better understanding or [sic] a technology that has many positive consequences for the educator. -6- Processor Gillis' described the seminar as follows: It was a.one-hour presentation. I informed attendees as to the nature of the digital cameras, their functions, their limitations and the possibilities for enhancement of their teaching and dealing with their responsibilities. Both support staff and faculty members attended the seminar. Professor Gillis' testified that his goal was that these individuals would learn the possibilities that would accrue through better technology being used in the course of their duties. Processor Gillis described the format of his workshop as "I show, I talk, you do." Basically, hewould demonstrate. the technology and then have the participants attempt to replicate what they had been shown. To expedite this, he handed out a three-page outline of the agenda for the hour, setting forth the subject areas that he intended to cover. Presenting this seminar was a natural extension of Professor Gillis' many interests in the area of new technology. Since 1997 he had offered PDOs relating to cameras. In the winter of 1998 he was assigned to a multimedia project by the College_ As part of this, he researched and recommended the purchase of the College's three digital cameras. These also became the cameras that he used in the PD~ workshops. He first offered the "Add Ufe to Presentations" with the digital cameras in 1998. Professor Gillis described the preparation that he was required to undertake in order to present this workshop. He drew upon his experience with regard to the research into the purchase ofthe digital cameras for the College's multimedia project to help define their capacities. He also spent time in preparing the workshop's format and practicing his'delivery. He testified that his preparation for " -7- the workshop "was really not different from my preparation for a real [sic} course aside from the obvious fact that a new course would require a lot more ongoing . hou(s of similar activities." He estimates that he' spent 15 to 20 hours of his personal time in preparation of the first digital camera workshop but agrees that some of that time was related to research on the technology that he was doing for the College in other capacities. Therefore, the 15 to 20-hour estimate must be somewhat discounted. He presented the workshop a number of times. and estimates $pending five hours to prepare each repeat performance. Professor Gillis describes his presentation of a PDO as "teaching. a workshop." When asked what he was doing, he responded, "I was teaching. They [the attendees] would refer to me as a teacher." He explained~ It se~ms to me a teachers responsibility is to impart knowledge and information so that the listener is subsequently in a position to repeat faithfully the information or duplicate the activity to his or her benefit or the benefit of anyone else he or she shares the knowledge with. He described this experience as being "notmuch different" from a classroom experience with regard to the subject credited on his SWF as teaching contact . , hours. He said: "The atmosphere was like a classroom. I was a lecturer. It was not the blind leading the blind~" Thecross.examination of Professor Gillis was designed to contrast the design and development of a PD~ with the courses that the College has credited on his SWF and/or with the courses that are available for academic credit. (For purposes of this Award, these courses will be referred to as Ilcredited courses.") Professor Gillis has been involved in the creation of both PDO and credited courses. He and the dean of the General Studies Division, Terry Boyd, agree that credited . . - 8- courses are designed and developed with specific and defined "learning outcomes." Before a credited course can be offered, a professor must meet with the department chair. The proposed course's content, methodology, and resources are reviewed. The proposal must accord with the College's academic policies and procedures. The course must then be '.authorized" by a department chair or a dean. The courses must also comply with Regulation 770 of the Ministry of Training, Colleges and Universities Act and be approved by the Board of Governors. All this is necessary for a course to generate academic credit for the student. In contrast, when a PQO is being developed, the person interested in offering the workshop speaks to the Human Resources Department. Professor Gillis testified that ~his would result in a discussion about the proposal's "merit and whether it would fly," , meaning whether it would be appropriate to offer and/or whether there would be any interest in the subject matter. No PD'O could be offered without the approv~1 of the Human Resources Department. The funding for the PDOs comes from the Human Resources Department's budget. No departrrlent Chair's or academic approval would be sought or received for the PDOs, Nor are POOs expected to comply with , . the College's academic policies or procedures. No testing or grading is undertaken during a PD~ and no academic credit is given for attendance or completion. POOs are also assigned differently than credited courses. As mentioned above, PD~ offerings are arranged through the Human Resources Department. Credited courses are assigned by a department dean or his/her designate. As Dean Boyd expla,ined, assignments are based on his knowledge of the faculty members, their skills sets, their credentials, their teaChing experience and, wherever possible, their preference. These assignments are made pursuant to a meeting between the professor and the Dean or his/her designate to discuss "total workload" in accordance with Article 11.02 A1 (a). Attempts are made to reach a consensus between the department and the teacher. After the meeting and the ,- 9- assignment is set, the teacher has the right to ~6cept or initiate a review of the assigned workload. No such process is undertaken with respect to PDOs. They are arranged through the Human Resources office. There is no evidence that they are assigned in the sense that teachers are told that they are being expected to teach or offer the PODs. A professor may be approached and asked to do so. For example, Tom Geldard has been a professor at the College since 1975 and is the First Vice-President of the Local. He was asked by a Human Resources consultant at the College to offer a POD, but he declined because the work would not be credited on his SWF. There is n"o evidence that he was criticized or censured for declining the request. Other comparisons and contrasts were drawn between the College's credited courses and PDOs. Students pay tuition for credited courses and do not do . so for PDOs. Student~ are registered through the Registrar's office for credited courses. The College establishes the number of hours and the schedules for the credited courses~ These cannot be unilaterally changed bya professor. In contrast, people interested in POOs contact the Staff Development Office ahead of time and/or sign a IIregistration form" when they attend on the day of the workshop. They are scheduled at the presenter's' convenience and can be revised at that person's wish. For example, Professor Gillis originally offered this workshop as a two~hour format and then reduced it to a one-hour session in the later years. Further, when Professor Gillis forgot to present his workshop on the advertised date in the fall of 2000, the time was Simply rescheduled without any consequence or censure. . Further, while Professor Gillis did hand out a document to his workshop ou~lining the areas he expected to cover, there was no concern on the College's part when the one-hour allotted time turned out to be too short to cover all the course material which he had planned. This is because there are no learning obj~ctives defined by -10 - the College for PODs. In contrast, the course outlines for the credited courses are considered under College policy to be "an implied contract" between the students, and the College. Teachers are expected tl? delh/er the courses in accordance with . the course outlines. Dean Boyd agreed that general interest and 'lpure continuing education courses" are not expected to meet requirements of the academic policies. Beginning in 1996 as a result of an arbitration award, some of these courses were taught by Professors and credited on the SWFs. .The parties concentrated a significant amount of evidence.on the question of whether there is any "in-process evaluation and feedback" during a PDO within the meaning of Article 11.01 (e)(2)(iii). Professor G.eldard defined "in-process evaluation and feedback" as uverbal feedback, a written ststement, [or] the recording of marks.... within the teaching contact hour - when nothing is taken outside of the classroom to be marked." He also testified that he had to evaluate the classes' progress during his PD~ to be able to judge when it would be appropriate to move on to the.next level in his plan ofhis presentation. His testimony was aimed at suggesting that this determination ~mounts to in-process evaluation. In cross- examination he conceded that credited course "in.process evaluation" is done in accordance with the College's approved course outlines and pre-determined goals. There are credited courses at the College where "in-process evaluation" is the sole evaluation scheme that is used. A formal evaluation is required for all credited courses a9cording tothe College policy. Students are awarded a numeric or letter grade or granted a pass/fail designation. These marks are submitted to the Registrar's office and are recorded for credit towards a College diploma or certificate. There is no grade or recognition of the work done in the POOs. "" ~..' - 11 - The College's'position is that the offering of the PDOs is more akin to a "complementary function" than to a "tf>aching contact hour." To support this theory, Dean Boyd gave examples of how the College is currently attributing complementary function under Article 11.01 F. His first example was time attributed for teachers' attendance at divisional and program meetings. In addition., he referred to the time attributed for the "teaching circles" and ''facultymentoring programmes." These are new programs. All participants receive a complementary function credit on their , SWF for the work done in helping to develop and integrate new teachers into the faculty. The Union's Submissions Counsel for the Union began by suggesting that the fundamental factual question to be determined is how the work is to be characterized, whether it is teaching work or, not It was submitted that the Board of Arbitration consider the nature of what actually transpires in the workshops, in terms of communication, relation of information and instructions. Secondly, we were asked to look at how the workshop was organized and what goes into the preparation. The Union's . submission is that the work exemplified by Professor Gillis amounts to teaching. It was stressed that he determined the course content, determined how it would be taught, discussed it with the Human Resources Department and received approval. to present the course as proposed. Thereafter, the Human Resources Department was said to have made the arrangements for the presentation of the course and . accepted the registration of interested students. It was said that this should be accep,ted as unchallenged evidence that these functions are akin to what he does for any of his other credited courses. The Union recognizes that there may be differences between credited a,nd POO courses. However, it was argued that , , -12 - teaching takes place in both types of classrooms. The Union describes the difference as a difference in form, not in substance, The Union conceded that the POO workshops are not being delivered by an academic division or faculty. Instead, they are being delivered by or through the Human Resources Department. However, it was stressed that there is a lIsimilarity of reasons" why the PDOs and credited courses are offered at the College , . in that they "enhance personal development through the acquisition of knowledge." I~ was stressed that the pamphlet advertising PODs for the Fall of 2000 was issued by the Human Resources Department and contains descriptions about how attendees willlllearn how" or acquire skills in specific areas. This was said to be evidenoe that teaching occurs. It was stressed that the College has engaged a series of faculty members to provide the POOs because teachers are required. It was submitted that the College places great significance on the PD~ programme and budgets funds for it. The Union discounted the fact that the PDOs do not comply with the College's academic policies. It was stressed that Dean !3oyd agreed that general interest and "pure continuing education courses" do not meet the requirements listed in the academic policies. It was stressed that' previous case law has established that the fact that courses are not governed by the academic rules or offered for credit should not determine whether the courses should be included on the teacher's SWF. Reference was made to Fanshawe College of Applied Arls and TechnoJogyand OPSEU (Article 4 grievance), unreported decision of Howard Brown dated June 28, ,1996. It was stressed with the College's concession that the PD~ work should at least be considered as a complementary function. the 'que~tion is not whether the work will be recorded on the SWF, but how. Therefore, it was said that the fact that . , -13 - the courses may not fit within the academic policy should not be considered as relevant to whether or not this is teaching work. The Union also argued that there is a significant comparison in terms of the assignment of PDQs and credited courses. Reference was made to Dean Boyd's evidence when he explained that an attempt is made to reach a consensus with the professor in terms of workload and course assignment. It was argued that this is "virtually identicaln to the process that Professor Gilles went through when he indicated his desire to offer the PDQ, made a proposal to the Human Resources Departmentl did the work and received compensation. It was argued that Professor Gillisl evidence indicates that he took a great deal of care for the proper preparation of the course and its delivery. In doing this, he complied with what the College expects of teachers. Anticipating the College's argument, the Union argued that there is no lack of formal evaluation in the PDOs. The Union relied on Professor Gillis' evidence of his need to evaluate the progress of students in order to determine how to proceed with the rest of the class. It was stressed that formal grades are not required for general interest courses or even credited courses. The Union also argued that Article 11.01 E 3 indicates that grading is not required for all courses. Further, it was argued that there is no requirement in the case law that grading, assessment or evaluation be done formally when the question is whether a person is teaching or not. The Union submitted that the appropriate question to ask is whether or not the teaching is being done in the classroom. If the answer is yes, it was submitted that the work should be credited on the SWF. In support of its presentation, the UniQn relied on the fpllowing cases: Fanshawe College and . . -14 - Ontario Public Service Employees Union, unreported decision of Gail Brent dated April 24, 1987, Fan,shawe College and Ontario Public Service Employees Union, . unrep.orted decision of J.W. Samuels dated Aug.ust 5, 1986 and The Ontario Council of Regents' tor7 Colleges of Applied Arts and Technology (Fanshawe CollefJe) and qntarioPubJicService Employees Union, unreported decision of W.B. Rayner dated March 6, 1980. The Union also argues that the fact that professors were given $50.00 gift certificates for offering PDOs violates the Union recognition provision of the collective agreement - Article 1.01. This was said to be evidence of negotiating a separate arrangement with bargaining unit members without bargaining through the Union. The Union seeks a declaration that this practice violates Articles 1 and 6 of the collective agreement The Union also seeks an order compensating Professor Gillis and anyone else covered by the grievance who would be entitled. to compensation for providing the PDOs~ It was stressed that the evidence establishes that Professor Gillis would be enti.t1ed to compensation because, even if his PD~ is counted as complementary :hours, the work would .place him inan overtime situation. The Union also stressed that the grievance is a Union grievance and was presented as on behalf of the bargaining unit and two other named professors. The Union seeks an order declaring their entitlement to compensation and the appropriate dues that would flow as a result. Anticipating the College's argument that there is not sufficient evidence to cover any compensation for any professors other than Professor Gillis, the Board was asked by the Union to make a finding regarding Professor Gillis specifically. It was said that whether the grievance is upheld for his or the College's position , -. .' -15 - regarding complementary functions is accepted,'the Board should issue a declaration and remit back to the parties the question of implementation for the other two narT1ed professors2.. It was noted that the College has conceded that it will pay compensation retroactive to 2000 for any monies owing to Professor Gillis. The question remains as to whether the Union's evidence is sufficient to trigger any compensation for the other professors. Counsel for the Union argued that since this is a Union grievance.. the Board simply make a ruling regarding Professor Gillis and remit any oth.er question of remedy back to the parties. The fact that there was no evidence presented relating to the two remaining professors was said to not preclude a remedy to them or the Union with regard to their work. It was argued that the Union has established entitlement to a remedy through the evidence of Professor Gillis. Finally, the Uniqn asked that this Board of Arbitration make a comment upon the fact that the Article 11,08 was not raised as a defence in the ultimate presentation of ine merits even though it had been offered as a complete defense at the preliminary stage of proceedings. to assert that there is no "patent violation" as is , required by Article 32.10. The Union asked this Board to point out that it could be dangerous t6 decide a case on the basis of a legal argument alone at a preliminary stage where the legal submissions themselves may not be able to withstand the scrutiny that would take place when the m~rits are considered. It was stressed that if the Board of Arbitration had accepted the College's submissions at the preliminary stages, the Union would have been precluded from presenting its case on the basis of an argument that was not pursued when the case proceeded to a hearing on the merits. 2 More than three persons are named in the grievance. However, the Union only pursued claims on behalf of three . . -16 - Submissions of the Colleae Counsel for the College began her submissions by iIIustrating,that she could "teach' the participants at the arbitration hearing how to do something, like fold a linen napkin for a formal dinner table, but t~is would not amount to "teaching" within the meaning-of the parties' collective agreement. The College disputes that Professor Gillis' evidence establishes that he was "teaching" within the meaning of this collective agreement when he presented the PD~ about digital cameras. It was $tressed that even though he met with the Chair of hi,S Department repeatedly to discuss the contents of his assigned workload, from 1998 through to 2001, he never took the position that offering the digital camera PDO was teaching. Further, it was said that his own evidence contradicts the proposition that the course amounts to teaching. The College pointed to the evidence that he simply ICforgof' to present the , , seminar as origin'ally scheduled and then offered it later without any consequence. Further, there was "little consequence to the participant" when he was unable to cover all the plan' material in the one:--hour period. Finally, he had the prerogative of unilaterally determining that the workshop would be reduced from a two-hour to a one.hour f01lTlat over the years that it was offered, It was argued that the fact th~t he ,could do all this on his own initiative is evidence that it is not teaching and that this is not the type of activity that the parties ever intended to constitute teaching within the , meaning of the collective agreement. The College argues that the types of courses which constitute teaching within the meaning of the collective agreement are thQse offered in accordance with Regulation 770 of the Ministry of Training, Colleges and Universities Act and are approved by the Board of Governors of each College. Further, the College relies heavily on the preamble of the class definition of professor which indicates that the professor works 'Iunder the direction of the senior academic officer of the College ordesignate" and is engaged in the "teaching of assigned courses." (Emphasis added.) It was submitted that the "assigned courses" . ~ -17 a must be ~s$igned under the direction of the Senior Academic Officer. Further. it was stressed that teaching involves "carrying out regularly scheduled instructions," which implies that the professor cannot attend or forget to attend without consequence. Further, it was stressed that while "teaching') involves evaluating students' progress and the overall assessment of the work, this does not occur in the PDOs.lt was also stressed that the evidence indicates that an academic official did not authorize the outline of the PDO. Further, the students were not "registered" in the PDOs by - the Registrar's office. It was stressed that the evidence of Professor Gillis ~stablishes that there were no defined learning objectives for the POD. The students were not measured through evaluation nor were they graded or marked on a pass/fail basis. In terms of a definition of the term ''teaching'' "the COllege relied on the following cases: Humber College of Applied Arts and Technology and Ontario Public Service Employees Union, unreported decision of Paula Knopf dated December 31. 1990, Fanshawe College and Ontario Public SeNice Employees Union, unreported decision of J.W. Samuels dated December 23, 1988 and Algonquin College and Ontario Public Service Employees Union Local 415 (2001), 100 LA.c. (4th) 234 Knopf. Counsel for the College also stressed that the evidence provided by the Union should be considered very narrow and as insufficient to fulfill its onus of proof. Despite the fact that this was a Union grievance, it was said that the evidence presented is only sufficient to trigger a personal remedy for Professor Gillis and not others like him. It was also said that any remedy flowing to the Union should relate to Professor Gillis' evidence only. It was argued that in order to achieve a broader remedy the Union would have had to call evidence from any other individuals who had taught PDOs without receiving appropriate remuneration. -18- With regard to the gift certificates or "honoraria" given to those who presented PDDs, the College concedes that the work should now be reflected on the SWF as a complementary function and that this.warrants a declaration that the practice of not including this work on the SWF and paying the honoraria should . cease and desist. The College resists a declaration that there has been a violation of Articles 1 and 6 of the collective agreement. By way of reply, counsel for the Union encouraged the Board of Arbitration to provide a ruling to assist the parties on how the PD~ time is to be recorded. It was submitted that if an "extremely limited ruling" is issued, restricting itself to the evidence of Professor Gillis, this would simply result in added litigation with regard to other professors offering POOs. The Board was encouraged to make a genera~ ruling and remit t~e issue of remedy back to the parties to prevent further litigation. The Decision The question of what constitutes teaching functions that would be credited on the SWF has arisen before in College cases, but in different contexts. Typically, the question arises in grievances where there are claims of improper classifications. Notsurprisingly, the arbitral jurisprudence in that context has concluded that a teacher is someone who teaches. This is more eloquently stated by arbitrator Gail Brent in the Fanshawe decision, supra: A teacher is someone whose primary or core function is teaching. We do not consider that there has been any fundamental disagreement about that among arbitrators who have considered what teaching is in the context of trying to determine whether someone, who has agreed to be a teacher, is engaged in a teaching hour. Whatever else a teacher may be or do, her/his prime function is, to be the. human instrument of instruction relatinCl to the .' ., " -19 - course curriculum which has been determined bv the college. [emphasis added] The question of what is a teaching hour arose earlier at Fanshawe COllege in the Samuels decision, supra, It was determined that "a teaching hour occurs when [the teacher] is disseminating course content in the course assigned" (p.1). These cases illustrate that the question is not simply whether someone is teaching, Teaching is a broad concept and could conceivably encompass many kinds of instruction and dissemination of knowledge. However, the cases decided under this collective agreement make it clear that the question for a board of arbitration is whether the teaching is taking place in the context of "course curriculum whicl1 has been deteimined by the College" (see Brent decision) or disseminating "course content in the course assigned" (Samuels decision). Further, the class definition of professor in the collective agreement speaks to "teaching of assianed courses," not simply teaching. In addition, a teaching contact hour is defined under Article 11.01 B 2 as a "scheduled teaching hour assigned to the teacher bv the College." On the evidence before this Board of Arbitration, it is possible to conclude that the people offering the PDOs do teach, in that they are uhuman instruments disseminating knowledge on several subject matters." But the real question is whether they are performing teaching within the meaning of the collective agreement that would attract the designation as a teaching contact hour within the meaning. of Article 11.01 B 1. The problem with the Union's evidence is that the facts do not establish that the PDOs offer course curriculum or course content which has been determined or approved by the College. Nor do the PDOs amount to courses which have been assigned or provided under the direction of a senior academic officer of the College or his/her designate. It is true that the Human Resources Department approves the '. . . - 20- subject matter of a PDO in the sense that it will deem a PDO appropriate or sufficiently attractive that it Clwill fly." But this type of approval is quite different from the Kind of approval where a Dean scrutinizes a course outline to see if it meets the requirements of. the academic policies. and standards. There is no evidence of any academic approval of the course curriculum for the PDOs. The fact that the PDOs are not developed, assigned, nor offered under the direction of the Senior Academic Officer is important under this collective agreement. The complex and detailed provisions of the Article 11 workload provisions have been crafted by the parties to ensure proper checks and balances in the assignment of a professor's workload. The article starts with the assumption that the workload will be "assigned" by the College to a professor within the limitations set out in the article. The article then contemplates the profe~sor meeting with the department chair and setting a SWF that is in compliance with the col,lective agreement. If the collective agreement were interpreted to allow a professor to design and offer a course without any academic . input into the curriculum or design, this would defeat the:purpose and intent of Article 11. It would mean that a professor could unilaterally undertake to offer a course, whether it had been approved or aSsigned. This, in turn, could alter the total workload on his/her SWF by undertaking a PD~ in conjunction with the Human Resources Department and without any consultation with the department chair or supervisor. To put matters in a different way, the evidence does not disclose that a PD~ can be considered a teaching contact hour within the meaning of this collective 'agreement. ThePDO was not assigned by the teacher's supervisor a senior academic officer. There is no evidence that professors were assigned, told or expected to undertake these PDOs. They may have been asked to offer the opportunities through the Human Resources office, but there was no consequence , .. ~ 21 - in declining the invitation. The only evidence is that professors who wished to do so undertook the POOs and simply received an honorarium in return. Therefore. while the evidence establishes that the people who took the POO workshop were able to learn and acquire knowledge by doing so, the question for this Board of Arbitration was whether the faculty offering those POOs was Uteaching" within the meaning of this collective agreement. We have c~ncluded that in order to constitute "teaching" for purposes of amounting to a "teaching contact hour," the work must be 1. assigned by the College, not undertaken at one's own discretion. 2. done under the direction of senior academic officer of the College or his designate, 3. done in terms of an assigned course, and 4. the course of instruction must be one that was determined by the College. None of those factors exists for the POOs. Accordingly, the work cannot be considered a teaching contact hour as the Union asserts. We should also refer to the College's argu~ent asserting that the PDOs should not be credited on the SWF on the basis that they are non-credit courses. We decline to accept the College's argument in this regard. The Fanshawe College decision by Howard Brown, supra, held that total workload can include teaching of non~creditcourses. This is consistent with the recent ruling in Algonquin College, supra. Therefore, the issue of credit versUS non-credit courses is essentially a "red herring" in this case. Having found that the POOs should not be considered ..teaching contact hours'l, we are left with the conclusion that offering the PDOs should be, as . , - 22. the College ultimately asserted, credited on the SWFsas a complementary function. This is consistent with the 'College's attribution of hours associated with mentoring, teaching circles and divisional meetings, to name a few. The college has acknowledged that it has failed to give such credit for PDOs in the past. Tfia College acknowledges that the U'nlon is entitled to a declaration resultin'g in the granting of credit for Professor Gillis' work retroactive to the filing of this grievance in the fall of 2000~ Accordingly, we declare that Professor Gillis) SWF should be revised to reflect the PD~ offerings as complementary functions within the meaning of Article 11.01 B 1 (Iv). Professor Gillis is entitled to any compensation that may flow.as a result of this order and the Union is entitled to any consequen~al dues that would arise as a result of this ruling. . This leaves op$n the question of whether any other individual . ., professors and/or the Union are entitled to relief as a result of the conclusions in this case. It is true that the College made it clear at the outset that it would not agree to consider Professor GiUis' evidence as "representative" of any other claimants. It is also true that there are only two other teachers remaining in the original grievance for whom the Union is pursuing a claim. Neither gave evidence. However, their . SWFs were filed as exhibits, as ~as the brochure of PD~ offerings for the relevant time of the grievance. Noneth~less, we do not accept the College's position that the effect of this Award should be limited to Professor Gillis' claim only. This case proceeded to a hearing as a Union grievance. The evidence does establish that all the PDOs were offered under the same rubric and for the same purpose. The College has accepted that the work involved with a PD~ is a complementary function, deserving credit as such on the SWF. If the College's position with regard to limiting relief were to be accepted in this case,this would be tantamount to a direction that the Union would be required to call endless numbers of teachers to prove entitlement in cases such as this. Labour arbitration was designed to be ,. ~ , , - 23- expeditious and efficient. A ruling in this context that would encourage repetitive and extraneous litigation is not il';' the interest of labour relations or justice. Therefore, despite the College's articulate objection, we are not prepared to preclude the possibility of relief for the other two faculty members for whom a remedy is being sought. Therefore, we are prepared to rule that the work performed by Professors Rozenkrantz and Belford on th~ir PDOs should be attributed as complementary functions on their SWFs. Further, the Union is entitled to any dues that would accrue as a result of this conclusion. If any compensation would flow from this declaration to those individuals or the Union, we declare 'the entitlement We remain seized with issues of implementation should the parties require such assistance. The Union has also asked for a declaration that the College has violated Articles 1 and 6 of the collective agreement by paying honoraria rather than compensating professors in accordance with the collective agreement. The College has conceded that the practice violates these provisions and has undertaken to stop this practice. Under these circumstances, there is no necessity to issue such a cease and desist order. We do note that while there has been a technical violation of Articles 1 and 6. there is absolutely no evidence of any intent to subvert or undermine the Union in this regard. < . .. "- \, - 24- Accordingly, the grievance succeeds, in part, as outlined above. DATED at Toronto, Ontario this 16th day of December, 2003. i , "R J. Gallivan" ' . I concur. See addendum College Nominee I concur l<John McManus" Union Nominee V.J.I V.I .VV6J: ........ ":1:'" .L'~ -:I:~Y Q'YV YV4IIV .... ",' " . - 25- ADDENDUM OF R. J. GALLIVAN, UNION NOMINEE The Professional Development Opportunities offered by the College clearly do not involve "teaching contact hours" as defined by the collective agreement. Thus I support the decision to dismiss the union's contrary claim. Between the date of the grievance filed in November 2000 and before completion of this Board's hearings in October 2003, the College amended its practice with respect to PDOs by henceforth including on a teacher's SWF as a "complementary function" time spent leading such events. The College also advised the Board -that its new practice would be made effective retroactive to the date of the grievance for pay purposes and if that resulted in further co~pensation for eligible teachers with consequential union dues, those amounts would be paid. Thus that portion of the Board's award dealing with financial remedy is redundant because that issue became moot once the finding was made th~t the time spent leading PDOs was not teaching time. The College's argument on remedy, set out by the Chair in the award 'as if it were applicable to all possible outcomes, was clearly identified by ,counsel as applying only in the event the Board found the time spent to be teaching. The College made no argument on remedy if the Board were to find the work not to be teaching because the College's revised practice included full compensation for anyone eligible retroactive to the date of the grievance. We were further told that only one of the teachers involved - David Gillis - would in fact be entitled to extra compensation (and would be so paid) because even with the addition of complementary function time for PD~ work, the total workload of other teachers would remain below the maximum allowable hours. Thus the matter of any financial remedy is moot. Furthermore, the Chair's lengthy. f . ,. - 26- . rationale for nevertheless ordering one is flawed (she' relies on SWFs which of course don't mention PD~ work - that's why the grievance in the first place - and relies on brochures which do not identify any teacher) and serves no usefu.l arbitral or labour relations purpose. DATED at Toronto, Ontario this 16th day of December, 2003. . j/R. J. Gallivan" '.