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HomeMy WebLinkAboutUnion (Business Program) 12-01-03IN THE MATTER OF AN ARBITRATION Pursuant to the Colleges Collective Bargaining Act Between: ALGONQUIN COLLEGE: COLLEGE EMPLOYER COUNCIL FOR THE COLLEGES OF APPLIED ARTS AND TECHNOLOGY (For Academic Employees) (the Employer/College) - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) Re: Article 2 - Business Programs - Pembroke Campus Grievance No. 2008-0415-0047 A W A R D PAULA KNOPF - ARBITRATOR APPEARANCES: For the Employer: Jock Climie, Counsel For the Union: Mary Mackinnon, Counsel The hearing of this matter was held in Pembroke on November 1 and 2, and via teleconference on December 5, 2011. The Union has filed a grievance alleging that the College is violating Article 2 of the Collective Agreement by failing to give preference to full-time appointments in a number of Programs. This aspect of the grievance is confined to the evidence presented with regard to the Business Program and related courses at the Pembroke Campus. The Union alleges that the number of hours being taught by non-full-time teachers, including partial- load and sessionals, is “disproportionate” to the number of full-time faculty teaching business courses. The Union is seeking an order that the College be required to hire one more full-time teacher with a course-load of business related subjects that would be delivered in the Business Program as well as to the Office Administration, Outdoor Naturalist, Outdoor Adventure and Motive Power Programs. The College is opposing the Union’s request, citing operational justifications for its hiring decisions. The provision that governs this dispute is Article 2 of the parties’ Collective Agreement: Article 2 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, Partial- Load Employees, subject to such operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications 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 programs 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 employers, students, and the community. The College will not abuse sessional appointments 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 expectations. 2 2.03 B The College will not abuse the usage of sessional appointments by combining sessional with partial-load service and thereby maintaining an employment relationship with the College in order to circumvent the completion of the minimum 12 months sessional employment in a 24 month period. 2.03C If the College continues a full-time position beyond one full academic year of staffing the position with sessional appointments, the College shall designate the position as a regular full-time bargaining unit position and shall fill the position with a member of the bargaining unit as soon as a person capable of performing the work is available for hiring on this basis. The Pembroke Campus of Algonquin College was established in 1968. It has grown over the years, with increases in enrollments and the addition of new Programs. It is now in the process of replacing its old building with a new facility that is scheduled for completion in 2012. The Campus offers several Programs, meets the needs of the local community and also has several “niche” Programs that are ideal for its rural and unique setting. To support its claim for the hiring of one more full-time professor, the Union used the verified data it receives from the “27.12” lists that indicate the partial-load and sessional appointments. In addition, the Union used the timetables issued by Human Resources to identify the courses that are being taught by part-time teachers. This data was presented and explained by Pauline Edmonds. She has been a Professor at this Campus since 1982, has served as a Coordinator for the Business Program on two separate occasions in the mid-1980's and the early 1990's, and has been a teacher in the Business and related Programs at various points in her tenure with the College. She has taught several subjects in various programs that include Mathematics and Computer related courses, as well as Computerized Accounting, Accounting, Advanced Accounting, and Reservation Systems. She is currently the Coordinator of General Education for Algonquin-Pembroke and is very knowledgeable about the Campus and its Programs. The full-time position that the Union is proposing was designed by taking the following courses that are being taught by non-full-time faculty and combining them to create a workload that Ms. Edmonds believes that anyone with what she calls “an advanced degree in business should be able to teach.” Ms. Edmonds proposed the following courses as the basis for a new full-time position [their Programs are bracketed]: 3 Fall - Personal Finances (Office Administration) 3 hrs/wk Finance (Business) 3 hrs/wk Professional Sales (Business) 4 hrs/wk Small Business & Financial Management (Outdoor Adventure Naturalist) 3 hrs/wk Marketing and Customer Service (Motive Power Technician) 3 hrs/wk Winter - Accounting (Outdoor Adventure) 3 hrs/wk Accounting (Outdoor Adventure) 3 hrs/wk Introduction to Accounting (Office Administration) 4 hrs/wk Marketing and Customer Service (Outdoor Adventure Naturalist) 3 hrs/wk Marketing (Business) 4 hrs/wk Ms. Edmonds asserted that since these courses are being taught at an “introductory level”, she was confident that “almost any business person with a good business background could teach these.” She offered the examples of people who have taught Accounting in both the Business and Outdoor Programs, and suggesting that someone who is capable of teaching Marketing could also teach Accounting at these levels. She was also confident that there would be a “healthy pool” of applicants who would be capable of teaching this mix of course. Ms. Edmonds pointed out that she and other full- time teachers have delivered many of these courses in these Programs and she argued that non-full-time appointments are not advantageous for the students or the Programs. She also stressed that it is common for teachers to teach “across programs” on this Campus, citing many examples beyond herself. Ms. Edmonds also clarified that the Union was not insisting that one person be hired to teach all these courses. She suggested that the Union’s position was simply that these courses are currently being taught by non-full-time teachers and make up enough content to support another full-time position, but that it remains the College’s prerogative to assign any appropriate workload of related courses to a new hire. Ms. Edmonds stressed that no 4 one is hired to teach specific courses, and she acknowledges that the Employer has the ability and duty to make workload assignments as the needs of the Programs evolve. She also acknowledges that this particular grouping of courses would never be assigned to a new hire because of the inordinate number of “preps” that would be required. She also conceded that no one has ever been expected to teach across the five different “streams” of Programs that are reflected in this proposal. The only exception to this would be the Professors who teach the English Courses that are delivered as “service courses” to all Programs. However, Ms. Edmonds suggested that these business related courses could make up a similar body of work that could be distributed among the full-time staff once the new position is created. This proposal must be considered in the light of the context of the five different Programs and their requirements. For the last three years, the Business Program has been offered in a compressed three-semester format, leading to the equivalent of a two-year Diploma. The Business Program consists of courses that include Business Math, Microcomputer Applications in Accounting, Entrepreneurship and Small Business, Marketing and New Media, Finance, and Management. The Business Program currently focuses on small business management and entrepreneurship. It has experienced a number of changes in the recent years. It used to be a two-year program with four full-time teachers. Now, it is offered with a “co-op” placement component that is attractive to students because they can achieve their degree in a 12-month “fast track” or compressed format. There is only one full-time faculty member now who normally teaches the Economics, Management, and some computer courses. Part-time, partial-load and sessional teachers have taught the Finance, Computer, Entrepreneurship and Small Business, Financial Management, Professional Sales and Marketing, and Math courses. Some of the Computer and Math courses had also been taught by a full-time teacher from another Program who retired in 2005. The other Programs that the Union alleges contain “business content or components” are Office Administration, Motive Power Technician, Outdoor Adventure and Outdoor 5 Adventure Naturalist. All those Programs also include marketing, business and accounting courses within their curriculum. The Office Administration Program prepares its graduates to work as office managers, clerks, secretaries and office assistants. It is “production oriented,” aimed at enabling its graduates to assist professionals in areas such as filing, emailing, conference planning and minute taking. It also includes a course in Personal Finances. The Union takes the position that a “specialist” is not required to deliver the material effectively. Ms. Edmonds pointed out that she shared in the creation of the course. She also pointed out that she has taught Introduction to Accounting and its follow-up course in this Program. Therefore the Union asserts that this course could/should be taught by a full-time Professor. The Outdoor Adventure Program is a two-year Diploma program that prepares graduates to work in the outdoor adventure industry, teaching safety and issues respecting the natural and cultural environments where they will be working. Students are also taught about the business side of the industry through courses, such as computer applications, accounting, risk management, marketing and customer service. The Outdoor Adventure Naturalist Program prepares graduates to work as skilled nature interpreters, soft-adventure and ecotourism guides. It is targeted towards individuals interested in working outdoors, guiding clients and interpreting their natural surroundings. The Program’s focus is on Nature and Heritage Interpretation, Outdoor Adventure Training, and Leadership, but also includes courses in Computer Applications, Risk Management, Marketing and Customer Service and Small Business and Financial Management. The Motive Power Technician Program is a Diploma program delivered in a compressed format over 45 weeks designed to give graduates the skills and experience that are needed to start a career in the automotive mechanical industry, by combining classroom instruction with a paid cooperative education placement in the Summer term. The course work includes the fundamentals of automotive mechanics, as well as communication skills, 6 technology, health and safety, and small business classes. It is funded on a year-to-year basis by the Government as a Pilot Project. The College rejects the Union’s proposal to have someone teach in all five Programs covering five different “streams” and asserts that this essentially creates a “service” type of Professor, similar to those who teach the English Service course across all streams. While the College concedes that it has the power to make this kind of appointment for the English courses, it asserts that it should not be ordered to do so by way of an Article 2 grievance. Ms. Edmonds and the Union disagreed, preferring to describe the Union’s proposal as covering three different areas, grouped as Finance, Personal Finance, and Professional Marketing and Sales. Ms. Edmonds also disparaged the Employer’s suggestion that it might be difficult to recruit someone to teach these courses. She has served on hiring committees and observed that the College has been able to recruit from across Canada and has never had a “shortage of qualified candidates.” Ms. Edmonds would not agree with the Employer’s suggestion that teaching Accounting to the students in the Business Program would be significantly different than teaching Accounting to the Outdoor Adventure students. She stressed that the core elements of the course would be the same and suggested that the teachers would simply have to provide different program specific examples that would be relevant to the different students. She also rejected the notion that the Outdoor Adventure students are a “unique” group that require someone with a similar background and like-minded approach to keep their attention and interest in a classroom. The College countered the Union’s evidence with the testimony of Murray Kyte. He is the Acting Dean of the Perth Campus, but he is slated to return to his home position as the Chair of the Business, Technology and Outdoor Training Department at the Pembroke Campus in the Winter of 2012 . He has held this role for the last 10 years. Prior to this, his teaching career in Algonquin’s Business Program included two levels of Accounting, Management, Introduction to Small Business, Finance and Strategy. He also taught Finance in the Commercial Pilot Program that no longer exists. 7 To put his evidence in a nutshell, he does not believe that the College could either recruit or find someone with the mix of skills required to deliver all the course that the Union proposes, and he firmly asserts that some of the courses require specialization for their delivery. He also is concerned about the level of workload that is being suggested, especially for a new hire with such a diverse course load. Mr. Kyte also explained that there has been a reduction in full-time faculty over the last number of years because of significant changes in the delivery of Business and Computer related Programs over the last eight years, partly because of declining enrollment. To address that problem, Programs have been redesigned, some have been dropped, and “co-op” components have been built into Programs to give students work experience that enhances their employability, as well as helping finance their education. Mr. Kyte gave particular attention to the Outdoor Adventure Programs. He describes the students in these Programs as “different” from the rest of the Campus, being less inclined to classroom instruction and demanding that their teachers have knowledge of this specific area in order to command the students’ attention or respect. He portrayed these students as a group who are loathe to sit in a classroom and who would rather be outside leaning through touch, experience and actions. He explained that history has shown that unless the teachers assigned to this Program has a background in the “adventure” world, the students refuse to become engaged and they stop coming to classes, thereby affecting the Program’s enrollment and acceptability. He said that in order to be a successful teacher with these students, the teachers need to have experience in this particular industry, as well as knowledge of the subject matter so that they can “walk the walk” for the core courses. He asserted that similar considerations apply with regard to the Outdoor Naturalist and Motive Power Technician Programs. He said that he experienced a similar reaction when he had difficulty delivering a Finance course to the Commercial Pilot Program, despite his own Honours Degree in Business that concentrated on Finance, as well as work experience in that area. Yet he still felt “out of his element” because of his lack of familiarity with the commercial pilots’ experiences or operations. 8 Mr. Kyte conceded that Professors have and do teach across programs at the Pembroke Campus, and there could be some “clustering” of courses that could create a sensible workload. He was able to see the connection between Finance and Small Business and Financial Management. However, he stressed that Personal Finance is entirely different because it is a General Education course, has nothing to do with Business matters, and deals only with personal budgets, goal setting, insurance and income tax. He said it would be a “quantum leap” for someone to go from teaching Personal Finance to Business Finance. However, he added that it would not be as difficult to go from teaching Finance to teaching Personal Finance. Therefore, he conceded that if someone could teach Finance, they would also be able to teach Personal Finance. Mr. Kyte was also willing to “cluster” Marketing and Customer Service with Professional Sales. He conceded that someone could teach them both. However, he described Professional Sales as a Senior Level course, offered in the last semester of the Business Program, requiring in-depth knowledge of retail and consumer issues. Mr. Kyte described the Professional Sales course as a “subject on its own.” He was unwilling to accept that someone with a Business Degree could successfully deliver both the Finance and the Marketing and Sales related courses. Mr. Kyte also advised that someone who could teach Marketing might not be able to teach Accounting. When shown that a full-time teacher with a Business Degree had done that in the Outdoor Adventure Program in 2007, Mr. Kyte pointed out that this was a “one-off” situation and was done competently because that individual was a “superstar and a fantastic teacher.” However, this has not been repeated and Mr. Kyte could not envision another person who would be able to do that. Turning to the proposal for the Winter Semester, Mr. Kyte said that he agreed with Ms. Edmonds that the Marketing (Business) and Marketing & Customer Services (Outdoor Naturalist) courses are “essentially the same genre.” He also did not try to differentiate the Accounting courses. However, he stressed that full-time teachers who have been 9 assigned from Business or Computing Programs to teach in the Outdoor courses have not succeeded because they lacked the specific background that the students demand. He stressed that while those teachers had the requisite skills for the content delivery, they were unable to “connect” with the Outdoor students. As a result, he said the Programs needed “someone with experience in the outdoor adventure business with a good business and accounting background.” So he has hired someone with both a business and accounting background that had run a local rafting business for 15 years. He said this has created a “synergy” that allows her to deliver the Accounting materials to the Outdoor Adventure Program where the students are engaged and the teacher is able to succeed. Mr. Kyte also mentioned that it is not common to find people with an outdoor adventure background who are also able to deliver the course materials. He gave several examples of full-time faculty without the Outdoor background who have tried to teach in this Program and encountered difficulties. He stressed that the problems did not arise because of teaching skills, but instead occurred when the students felt that the teachers could not relate the course content to the specific subject matter that was of interest to them. He admitted that there have been exceptions to this, but stressed that there have more problems than not with teachers who have not been able to relate to these students and who have either asked to be assigned elsewhere and/or been the subject of complaints from the Outdoor students. Mr. Kyte defended the use of a partial-load/sessional teacher for the Professional Sales and Marketing courses in the Business Program. That teacher was described as “Mr. Pembroke,” a person who is a well-known local business and community leader and recipient of the “Outstanding Citizen of Pembroke Award.” As successful as this person has been as a teacher in that Program, Mr. Kyte could not conceive asking him to teach Accounting as well. Mr. Kyte testified that there would be difficulties if someone was expected to teach across as many programs as the Union is proposing. He acknowledges that the English course is taught throughout the College as a Service Course, but says this is quite different from 10 asking someone to teach “outside of their primary Program.” He conceded in cross- examples that there are some Professors who might teach one course outside of their primary areas, but he could think of no example of anyone who is teaching across the five Programs. He did admit that it could be possible if the subject areas were closely aligned, but he said, “The idea that there is a person out there who can do all this is beyond unreasonable.” He also suggested that logistical and scheduling difficulties would arise because the Outdoor Adventure Naturalist students are only on the campus three days a week, so their remaining academic load has to be scheduled into the other two days. This would make it especially difficult to staff and to coordinate with other programs. He was also concerned about how one faculty member could attend team meetings for all five Programs. Further, he stressed that it is his responsibility to ensure that students are given an environment that is conducive to their styles and needs and is delivered in a way that is in-depth and provides program-specific anecdotal examples that will engage the students and prepare them for their careers. He stressed that Algonquin-Pembroke is not a university and while students are given some theory, the goal is to provide “practical knowledge and skills.” Mr. Kyte also feels that it is important for teachers to be very comfortable with their subject matter. He explained that if a teacher lacks “depth” in a subject matter or area, students quickly perceive when a new teacher is teaching “from the text book.” That is why the College is reluctant to ask someone to teach outside of their Program area and wants them to be assigned to particular programs. Because of all these concerns, the College does not believe that it would be able to recruit and hire anyone with sufficient knowledge and capacity to teach all the courses in the Union’s proposal. Acknowledging that some of the courses could be “clustered together,” Mr. Kyte suggested that no one could be found that had the necessary “depth” to deliver them all. He also indicated that while Renfrew County, where the Perth Campus is located, is a beautiful place to live and work, it cannot attract and retain the same pool of candidates as the larger, urban campuses. The Submissions of the Parties 11 The Submissions of the Union The Union accepted that it must establish a prima facie case of showing that there is sufficient work to generate a full-time position from what is being done by partial-load and sessional teachers. It then says that in order to avoid exercising a preference for full-time positions, the Employer has the onus of demonstrating that operational requirements oblige it to staff the courses with non-full-time positions. The Union asserts that it has presented sufficient evidence to establish that the partial-load and sessional hours presently taught in the Business and related program areas justify the hiring of a full-time person. The Union says that it has also demonstrated that the Employer has not exercised this preference, based partly on the evidence that the complement of full-time teachers in the Business Program has shrunk from four to one. The Union placed great reliance on the evidence of Ms. Edmonds and her opinions about who could teach particular courses. It was stressed that she has been a full-time Professor since 1982, has taught in numerous Business Programs, was twice the Coordinator for the Business Program, and has taught not only for the Business Program itself, but for all programs in the “cluster” of Business Programs. It was submitted that the evidence shows that the Employer failed to fulfill its obligation to hire full- time staff or to consider whether this particular bundle of work and/or the overall workload of the Business Program area could more effectively be delivered by a full-time Professor. It was also stressed that Professors in Pembroke, and particularly in the Business Program area, consistently teach across programs. The Union asserts that the courses proposed by Ms. Edmonds comprise a full-time workload with 16 to 17 teaching contact hours per week, in the Fall and Winter semesters. The Union argues that although the ultimate decision about what courses would be assigned would rest with management, there are sufficient hours across these program areas to attract qualified people to deliver these courses. Conceding that the suggested courses are taught across different programs, it was stressed that they are all introductory-level, college courses that anyone with “a good business background and 12 general business degree could teach.” The Union offered Mr. Kyte as an example because he has a general four-year business degree, and testified that he was able to teach in accounting, management, entrepreneurship, finance, and strategy. Further, he delivered a finance course in the former Commercial Pilot Program. The Union also relied on Ms. Edmonds’ opinion that an individual with an advanced degree in general business could easily teach Personal Finance, Finance, Small Business and Financial Management, Entrepreneurship and Small Business. The Union disagreed with the College’s concerns about being able to find and hire an individual sufficiently qualified to teach in these areas. The Union relied upon Ms. Edmonds' testimony that the College recruits people from across Canada to work in Pembroke and has been able to select the best from pools of very good candidates. The Union also pointed to other potential hires from the group who continue to teach on a partial-load, part-time or sessional basis for the College. The Union challenged the College’s assertion that the Outdoor Adventure Programs require individuals with an outdoor background in order to satisfy the students in this area. The Union argued teachers in all the Programs looks at the format, method of delivery, considers the audience, including what program the students are in, and delivers the content at the level of study that the students require. Further, the Union pointed to a few examples of individuals without an “outdoor” background who have successfully delivered courses in the Outdoor Adventure and Outdoor Adventure Naturalist Programs. The Union suggests that the College is simply looking for someone with a “particular personality or delivery style,” rather than a specialization. The Union also argued that although there may be some logistical problems associated with scheduling classes and meetings for a Professor who taught in so many programs, they were not insurmountable and should not be considered as a rationale for refusing to prefer full-time Professors. In summary, the Union submitted that it had met its onus of demonstrating that there is a full-time body of work that would support a rational staffing decision to hire an additional full-time professor within the business course area, whereas the Employer had failed to demonstrate that there are grounds sufficient to permit it to avoid its obligation under Article 2 of the Collective Agreement. The Union submitted that the College should be directed to post and fill a position for the business courses area at the earliest possible opportunity. Reliance was placed upon the following awards: 13 Algonquin College and OPSEU, (School of Media and Design), Kathleen O’Neil, June 2007; Humber College and OPSEU, Robert Howe, April 12, 1994. The Submissions of the Employer The Employer asserts that the Union’s proposed position encompasses too many programs and subject areas to make up a proper full-time position. Therefore, the Employer argues that the Union has failed to demonstrate that a “sensible and appropriate full-time work load” is available for any individual to undertake. Further, it was stressed that the standard of review of management’s staffing decisions in these programs should not be an exercise in “substitute decision making,” but instead should be an inquiry into whether management’s decisions have been “consistent with the provisions of the Collective Agreement.” Both these propositions were based upon the principles found in Algonquin College and OPSEU, (School of Media and Design), supra, and Algonquin College and OPSEU, (School of Media and Design #5), Decision of Kathleen O’Neil dated May 20, 2008. The Employer also submitted that greater weight and deference should be given to the evidence of the Department Chair over the opinions of a former Coordinator, especially on issues such as specialization and program quality. Further, it was stressed that the Business Program has undergone “massive changes” in the last few years so that it would be inappropriate to assume that the reduction on full-time teachers signals a trend away from full-time hires or an attempt to avoid the Collective Agreement obligations. It was also argued that it is “beyond reason” to expect one person to be able to deliver all the courses across all the “streams” that the Union is proposing. The College expressed concern about finding someone who would be able to deliver all the proposed courses at the level of quality that the students are entitled to expect. It was stressed that the courses that the Union has targeted are currently being taught by a number of “hand- picked specialists” and that finding someone who might deliver all these courses would create a “step backwards” that would be inconsistent with the operational requirement of delivering “quality” programming. It was said that deference should be granted to the Department Chair’s objective of ensuring that courses are being delivered by people who can bring practical experience and first hand examples into the classroom to prepare the students for the vocations they have chosen. 14 The College concedes that there are examples at the Pembroke Campus of Professors who have taught in more than one program. However, it was stressed that there is no example of anyone who has taught across five different programs. The College argued that the logistics of trying to schedule classes and staff meetings across five different programs would become difficult, “if not impossible.” It was pointed out that the proposed hire would not even have a “home program” or be able to identify what program s/he belonged to. Counsel for the College suggested that the Union’s proposal amounts to an attempt to create a new “Service” position akin to the English Service courses. However, it was stressed that while a College may decide to create a Service Course area, it should not be compelled to do that by an arbitrator, nor would that be dictated by the Collective Agreement. It was admitted that the Union provided examples of individuals who have successfully delivered courses to the Outdoor Adventure and other specialty courses without backgrounds or experience in those particular areas. However, it was also pointed out that there are more examples of other teachers who lacked that specific background and had experienced difficulties with the students and course delivery. Therefore, it was submitted that the College’s decision to place people with specialized backgrounds in these courses should be respected because it is reasonable and was made in good faith. In response to the question of whether one or some of the courses could be removed from the Union’s proposal and still support a full-time appointment, Counsel for the College argued that it would be inappropriate to compel the hire of a full-time teacher to teach a mix of courses did not amount to the 16-17 teaching contact hours proposed by the Union. It was stressed that the Union recognized that this was a full-time teaching load in this Department and that if the College is being compelled to hire a new teacher, s/he should be expected to shoulder a comparable load to other full-timers. Accordingly, the Employer argued that the Union has failed to meet its onus of establishing a breach of Article 2 of the Collective Agreement and asked that this aspect of the grievance be dismissed. The Union’s Reply Submissions The Union agreed that 16-17 teaching contact hours is an appropriate full-time work-load in this area, but pointed out that a new hire may not be assigned that many hours at the outset. 15 Therefore, it was suggested that if there are 14 hours of teaching contact hours remaining in a week, this should be sufficient to warrant the ordering of an additional full-time position. The Union also argued that the College cannot meet its obligations under Article 2 by establishing its “preference” for how it “wants” courses to be taught. Instead, it was submitted that the College should be required to establish that there is a “need for specialization” and/or that the programs will be negatively affected if the current staffing is declared inappropriate. Responding to the suggestion that the Union is essentially trying to create a Business “service” position, the Union argued that nothing in the Collective Agreement distinguishes or labels the delivery of courses as “Service” in nature. Therefore, it was said that nothing prevents the College from hiring someone to teach across several program areas as is done with the English courses. Therefore, it was said that an order requiring the College to hire someone to teach all the courses proposed in this case would be appropriate. The Decision The parties agree that a full-time position in the Business Program would consist of 16-17 teaching contact hours. The Union’s claim is for one position based upon a series of course combinations grouped together in business related subject matters. The proper approach to this kind of a claim was ably set out by Arbitrator Kathleen O’Neil in her decision for these parties in Algonquin College and OPSEU, (School of Media and Design - Decision #4 - General Arts and Science), dated March 24, 2008. She pointed out: . . . Article 2.02 . . . provides a negotiated preference 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 the employers, students and the community. [p. 8] When and if the Union is able to establish that there are a sufficient number of hours being taught by partial-load or sessionals that could be assembled into a viable full-time workload, the onus shifts to the College to put forward operational requirements for not assigning the hours to people holding full-time positions. Arbitrator O’Neil properly stated: 16 This is essentially a question of fact, although considerable deference is afforded to the assessment of management in this regard. The inquiry is not a comparison of the wisdom of scenarios proposed by each of the parties. It is whether there exist operational requirements which trump the negotiated preference for full-time positions. ….. the term operational requirements, [sic] connotes something necessary to the operation, for instance something without which the College cannot obtain its program objectives or market acceptability. . . . The wording implies more than individual preferences or considerations of a less necessary nature. . . . [The] exception of operational requirements ought not to be given a definition that is so expansive that the interpretation risks virtually elimination of the negotiated general rule that preference is to be give for full-time positions. [at p. 9] In the case at hand, the Union has demonstrated that there are sufficient hours being taught by partial-load or sessionals in the targeted courses to create a full-time position. But two, interconnected questions remain; 1. Has the Union proposed a “viable” workload, and/or 2. Do operational requirements justify the decision to not establish a full-time position? Addressing the question of viability of the workload first, two problems surface immediately. The first is whether anyone could be found who could teach effectively and competently across this combination of courses and Programs. It is not sufficient to assert that anyone with a Business degree should be able to teach Finance, Marketing and Customer Service, Professional Sales, Accounting, Personal Finance, and Financial Management. Without wishing to sound trite, the fact that someone has a business degree or experience does not mean that they will be qualified to teach anything related to the general subject matter. For example, while I have a degree in law and have taught at a respected law school, no one should want to take a course from me in the many legal subject areas that I have never studied or practiced. In the area of business, these degrees are composed of various courses and subject areas. People choose to specialize within the broad spectrum of courses and someone who can teach Accounting may not know anything or enough about Marketing and/or sales related matters to teach them 17 properly. That was why Mr. Kyte did not feel comfortable teaching a business related course such as Professional Sales because it was outside of his own wide areas of interest and expertise. It is true that examples were given in evidence of people who have taught in more than one of the business subject area and across Programs at the Pembroke Campus. However, many were not on an ongoing basis and no one has taught across all these subject areas. Further, while there was an attempt to suggest that these are all entry-level college courses that do not require a great deal of expertise, that proposition is difficult to accept. First, they are not all entry-level courses, Professional Sales being the exception. Secondly, “entry-level” courses deserve the same quality of delivery as any other and are sometimes even more difficult to teach because new concepts have to be introduced. Therefore, it must be concluded that it cannot be assumed that anyone with a business degree would be able to effectively teach all the courses that the Union is proposing. That is not to say that no one exists who might fill such a role, but the problem is that the search for such a person would unduly restrict the pool of qualified applicants who could contribute to the programs with the degree of competence that is necessary and expected of a full-time faculty. This amounts to a legitimate concern about operational requirements regarding the quality of the Programs. Nevertheless, it is tempting to say, just post the position and see if qualified candidates emerge. However, that would not be appropriate because the onus remains on the Union to demonstrate that the proposed position is one that could yield a suitable pool of qualified candidates. Given the diversity of the subject matters and the College’s assessment that no one would be able to deliver all these courses with the degree of depth, knowledge and experience required to meet the students’ needs and expectations, there is insufficient reason to override a decision to refrain from posting the position that the Union has proposed. But that does not end the matter. The Union also says that if someone can be found who could teach many, if not most, of the targeted courses, the College could assign other courses and retain the right to designate workload as it sees fit. However, that argument cannot be accepted. The onus is on the Union to demonstrate a viable workload. It 18 cannot propose a combination of courses that could make up a full-time workload and then say, if some or many of those courses are taken away, then simply substitute other courses that have not been explored in evidence. It may be true that the College has the right to assign courses as it sees fit and that no one is hired to teach one set of courses forever. However, in an Article 2 grievance, the onus is on the Union to demonstrate that a viable full-time position can and should be created out of work currently assigned to non- full-time faculty. Therefore, unless the courses that have been identified in the grievance can constitute a viable full-time workload, the grievance must fail. Another issue that is problematic for the Union in this aspect of the case is the College’s concerns about the program objectives and the quality of the programs. The Union is right that it is not sufficient for the College to impose its desire to retain an effective and welcomed partial-load teacher and thereby override Article 2’s full-time preference for the hiring of full-time faculty. The College must demonstrate operational requirements that override the effective presumption that a full-time faculty member should be in place. In this regard, the College’s evidence was aimed at showing the operational requirements of maintaining the partial-load and sessional specialized faculty in the Outdoor Adventure and Outdoor Adventure Naturalist Programs, and to a lesser extent in the Motive Power Technician Program. The thrust of this evidence was that the students’ demand that their professors have a background and experience in these particular fields in order to be effective in the classroom. Yet the courses that the Union has targeted are Small Business and Financial Management, Accounting and Marketing and Customer Service which are all taught in other business related courses. Therefore, it is tempting to assume that if someone could teach these courses to Business or Office Administration students, why couldn’t they teach them to the Outdoor students? The very credible evidence of Ms. Edmonds is that she and others have successfully taught in a number of diverse and/or related programs over the years. However, the equally credible evidence of Mr. Kyte is that students have been vocal and clear about their expectation and need to have teachers who not only deliver the substance of these business related courses, but who also have background and/or experience in these specialized areas. That enables those teachers to make the course materials relate to the practical issues that students will face 19 upon graduation and be able to connect to the students individually. Since this College’s goal is to prepare students and make them employable for the career paths they have chosen, this is an important consideration for the College. Article 2 specifies that the preference for full-time appointments is subject to the operational requirements such as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. A similar situation was canvassed by Arbitrator O’Neil and these parties in Algonquin College and OPSEU (School of Media and Design), dated June 8, 2007, wherein she noted that “Article 2 necessarily assumes the existence of a program, which, by virtue of Article 6, is within the College’s right to plan and design.” She went on to point out that where two programs focus on different vocational objectives, it is legitimate for a College to try to maintain program quality by confining hiring within program areas. She acknowledged that there may be more than one reasonable approach to this question. That is to say that the Union may well be right that it would be reasonable to have someone teach in the Outdoor Adventure Programs as well as the Business and/or other Programs. But the case law cited by the parties demonstrates that deference is accorded to academic and operational considerations that have not been shown to be unreasonable or without bona fide foundation. Therefore, while there may be wisdom and legitimacy to the Union’s approach, the College has also shown that there are legitimate operational reasons for wanting to maintain the integrity of individual programs and provide teachers with specialized backgrounds and experience for their students. This is further buttressed by the evidence of the students’ demands. Mr. Kyte was able to provide concrete examples of students' complaints about several teachers who could not be as effective as one would hope in these specialized programs. This can negatively affect the Programs’ market acceptability, both in terms of enrollment and the students’ opportunities for employment in the future. In Algonquin College and OPSEU (School of Media and Design), dated June 8, 2007, Arbitrator O’Neil respected the evidence that established that the College wanted to define positions in ways that supported and maintained the “integrity, contours and identity of separate programs.” These were held to be “legitimate considerations concerning the quality and effectiveness” 20 of operational requirements. The evidence in this case is of a consistent nature and must lead to the same conclusion. Further, in Algonquin College and OPSEU (School of Media and Design - Decision #5), Kathleen O’Neil, dated May 20, 2008, Arbitrator O’Neil wisely pointed out the implications and subtleties of the language of Article 2: In stipulating the term “quality of the program” as an operational requirement, the parties agreed to an elastic concept that is not susceptible to precise calibration. The intangible nature of the term also leads to the fact that it will often be difficult to disprove, even where there is a reasonable alternative. In fashioning the language as they did, the parties created a situation which attracts differing views on what is required to deliver a quality program, as well as the jurisprudence that has consistently held that the standard of review of management’s choices in these areas involves some deference, unless the employer’s assessment of the situation is shown to be improper in some sense such as being unreasonable or in bad faith. There were no allegations or evidence of bad faith or improper considerations in this case. While there may be many ways to ensure the delivery of a quality education in one or more Programs, the College has been able to demonstrate that it has acted in a way that can be considered reasonable in terms of assessing how to meet the operational requirements of its programs. Accordingly, the College has met its burden of justifying its failure to post full-time positions across the Motive Technician, Office Administration, Business and two Outdoor Programs. If the Outdoor and Motive Power Programs are removed from the proposed workload, the remaining courses do not support a full-time position when they are considered individually. Even if one were to combine the Business with the Office Administration 21 Programs, which is a much easier fit, there is not enough course work identified to warrant the ordering of a new full-time position. For all these reasons, this aspect of the grievance must be dismissed. Dated at Toronto this 3rd day of January, 2012. "Paula Knopf" _______________________ Paula Knopf - Arbitrator