Loading...
HomeMy WebLinkAboutUnion (Print Media) 07-09-14 IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Academic Bargaining Unit) Regarding a Union Grievance Concerning Preference for Full-time Positions and Article 2 in the School of Media and Design Decision#2—Dealina with the Print Media Pro aram BEFORE : Kathleen G. O'Neil, Single Arbitrator Counsel For the Union: Susan Ballantyne of Raven, Cameron, Ballantyne &Yazbeck Counsel For the College: Jock Climle of Emond Harriden Hearing dates in Ottawa, Ontario dealing with the Print Media portion of the grievance were: March 19,April 16 and 18, 2007 - ... � ' /- AWARD � This decision deals with the Phnt Media program, the second portion of the union's grievance, filed on y0mnch 14, 2005,. vvhkch alleges that the staffing arrangements in . several programs pfthe College's school of Media and Design constitute a breach oythe collective agreement. The first portion of the ghevance' involving three other programs, was dealt with in a decision dated June 8. 2007, which noted that the union's oweno|| position is that the College has failed to give preference to full-time positions under 8rUo|e 2' and that its staffing pnact|oe, including the preferential use of part-time hours, is eroding or circumventing the bargaining unit. The remedy claimed is that the College ' should g|Vm preference to full-time positions for all available vvorb' post and fill positions accordingly, and nairnhunse union dues'. In the Phnt Media program, the union c|oinno � ` one fu|��'mneposition. Facts ' _ Print Media ism program which trains students in both of two phncipalareas of work, � \ / referred tobv the parties am Press and Pre+Pnaoa. Pre-Press generally deals with the QeneraUngofaaofbwonainlogetobephnted.whUePrnaadao|ovviththmontue| printng process. The current assignment of full-time faculty generally reflects that divide. Throughout the period between the grievance and the completion of the evidence on this portion of the grievance, the Print Media program was a four-semester, two year program. Aeof September 20D7' it will be delivered 000Non-8enneoteradDiploma Program referred to as NSDP, organized in three semesters taking up less than two years. The College has opted for the new delivery mode inaO effort to better utilize space and resources and to attract more mature students attuned to getting'into the workplace quickly. Linda Cooke, Chair of the Program, testified that the College hoped it might help with what she considered a significant attrition problem in the two-year program. Since the late '8O'a the program has received about 6O students into the first year. |nthe |oottwmyeona. o�hbnnhoabroughtthanunmbmnedovvnbvneer|yeha|t � .^ There are currently two full-time faculty nmennbaro, one of which, Vlo|etGtorto' the union's � ( . witness, has been the Program Coordinator since 1995, and has experience as a visual 1 . l artist and in the printing industry. It was Ms. Btodo's evidence that there had been ( enough non-Full-time hours since the fall of 2004 to warrant the hidng ofmnadditional full-tine faculty member. Ascoordinator, Ms. Storto sees benefits in having ogreater ratio of full-time faculty rather than several part-time or partial load teachers. These include increased consistency of delivery of the programs, gains in knowledge and skill, and availability for promoting the program. Ms. Gtodn was firmly of the view that the College would not have difficulty finding a person with the depth necessary to teach the courses proposed for a full-time load if they advertised for the desired skill set. Furthar, she detailed a third full-time workload which would continue into the new format, although the pattern of faculty vacation would have tochange. |tia appropriate tonote that although there was a third faculty member until 2000, neither party introduced evidence suggesting continuity of the workload from that position. Since the fall of 2005, the non-full-time faculty in the Print Media program have typically iDn|udod, in the fall omMnentmr' in addition to the two full-time faculty nmennbaro' one sessional faculty In � - . � semester, there are significantly fewer hours, because students are engaged in field ( / � placements, and there are usually noaoaoioDe|eor partial load faculty, but several part- timers. When Ms. Storto had release time to develop the new NSDP format in addition to release time for her coordinator duties, a faculty member who was usually a part-timer became sessional with the extra hours generated by replacing K8n. Stodp'e release time. In the winter of 2007 there were no sessionals, but one partial load,who had previously been part-time, becoming partial load when she took up the hours taught by another part-timer who was let go. k8a. Cooke. vvithebockoroundinteoohingEnoiehondourhcu|umndesiQn' iaChoirof Design studies, which includes Print Media. She testified that there are a number of courses, including general education courses such as Organizational Communication and Skills for Success which the College would normally want to be taught by someone other than a full-time faculty member from Pdnt Media. The philosophy of general education io that it is something outside the students main discipline, intended to help students learn to think and solve problems outside their primary area of study. And she was not confident that the full-time faculty had the training and expertise in those subjects. There are also courses within the Print Media program for which she would ( 2 /- \ ' _ look for pe6ple other than the full time faculty-such as Web Design and Graphic Illustration, although Ms. Storto has taught the latter. Ms. Cooke indicated the College would like an illustrator, someone who can draw as well as operate the software as an enhancement for students. Her view was that Ms. Storto was unique in her ability to draw and illustrate as well as be a pre-press teacher, but that the College could not count on others having both sets ofskills. Ms. Cooke would also be looking for outside expertise for Web Design as she is not comfortable with assigning that course to full- time faculty. As to Ms. Storto's suggestion that any new hire for pre-press would come with the necessary depth of knowledge in web design, Ms. Cooke did not agree, indicating that it might become true in the future. She was of the view that most pre- press experts were focused on print production, and might be able to teach transferable dooigOphDuip|eo. butvvenaun|ihabtobeob|etoteochthointhoauieeofnevvxveb software. KDa. Cooke said itwould be o na|mtivo|y unique individual who could combine Graphic Illustration, VVeh Design and ReproQnaph|uo, which the union's proposed full- time vvork|oad would require. In the College's calculation of non-full-time hours available for consideration as part of a full-time workload, hours for replacing courses a coordinator would be teaching if they gave up coordinator duties, as well as courses which are seen as needing outside expertise, are deducted. When this is done, there are not sufficient hours for aviable third full-time workload in the employer's view. Although Ms. Cooke was not Chair ofthe program sd the time of the grievance, she did not think|t would have been reasonable � and sustainable to hire a third full-timer at the time of the grievance, or since, given the varying required skill sets, especially as the number of hours drops very significantly in the winter semester. Teaching contact hours were in the vicinity of 88 for the fall semester and under GDin the second semester, 8to8 out of which are delivered hythe English department. K8a. Cooke.does not see the new N8DP model being able to sustain three full-time teaching positions for all the reasons mentioned above and for the additional reason that intheounnnnmroerneotwrtherevWUheon|y11vvnehoinstnuction000ppnaedtoofuU15 week semester. She did not favour using the extra four weeks eaprofessional development since in her view there io already ample time in the other semesters for ( / that. For the summer semester in the new model, one faculty member would have to ( . 3 - ( ' ~ monitor field placement, for which complementary hours would be attributed onthe � professor's workload in the four weeks when the students are doing their field placements, but there is not sufficient work for two full-time faculty in her estimation. Givonthedthenevvde|iverynlode| iountdad. andtheCoUegedoaeDotkncmvVvhetheFit will improve the attrition problem or not, Ms. Cooke thought it prudent to wait to see if the new format is viable before contemplating a new full-time hire whose job might then be et risk, and for whom she did not believe there was adequate work|n any event. She said she thought the union's proposed full-time workload was pnadioobad on the � exact same people being there indefinitely with the availability they currently have, eopeoio|k/ oinoeUlavvoddoodieuneveh|ydiotributadbebweenpraaoondpn*-praae. which presents o problem for the viability oftharototionpropooedbytheunionfnrtha / new format. Collective Agreement Provisions Portions of the collective agreement central to this dispute are as follows: /- RECOGNITION ` 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as teachers, counsellors and UUrahoDo, all as more pnrhou|adv set out iD Article 14' Salaries, except for those listed below: (0 Chairs, Department Heads and Directors, OU persons above the rank of Chair, Department Head or Director, 0|\ persons covered bv the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit. (k) other persons excluded bv the legislation, and k4 teachers, counsellors and librarians employed one part-time or sessional basis. ' NOTE A: Part-time in this context shall include persons who teach six hours per week orless. � NOTE B: Sessional in this context shall mean an appointment ofnot more than 13 months duration in any 24 month period. ( / / . 4 ! / - ( STAFFING 2.02 The College will give to the designation of full-time positions ao regular rather than partial-load teaching positions aadefined in ArUo|m 28' Partial-load Employees, subject to such operational requirements as the quality of the prognam, attainment of the program objectives, the need for special qualifications, and the market aonerdobiUtv of the programs toemployers, 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 oamoiono| teaching positions including, in portiou|or, positions arising as o result of new post-secondary prpgnarne' subject to such operational requirements as the quality of the pnmgnanna, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications, and the market acceptability of the programs to arnp|oyena' students and the community. The College Wi|| not abuse sessional appointments bvfailing to fill ongoing positions as soon as possible subject to such operational requirements as the quo|bv of the prognynna, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. Also referred to in the ghevonoe are Article 3' which provides, among other things, thot � / there will be no discrimination on the hmoio of membership in the Union. ArUo|a 8' the management rights clause, which includes the following: 6.O1 |tio the exclusive function of the Colleges to: ... Ui manage the College and, without restricting the generality of the foregoing, the right to p|oD, direct and control operations, fac1|iUmo, progrmnas, oouraem, ayatenno and procedures, direct its peraonna|, determine oornp|ennent, nnJenioaUon, methods and the number, |000doM and classification of personnel required from time to tinna, the number and location of campuses and haoiUtieo, services to be performed, the scheduling of assignments and vvork, the extension, limitation, nurtai|nnent, or cessation of operations and all other rights and responsibilities not opooifioa|b modified e|aovvhena iD this Agreement. 6.02 The Colleges agree that these functions will he enenjomd in o manner consistent with the provisions of this Agreement. and Article 27 which npnboino both o preference for full-time over sessional, partial load and part-time positions onlay-off and provides that all vacancies of full-time positions will he posted. As well, Article 26.01 B defines a partial-load employee aao teacher who teaches more than G and uptn and including 12 hours per week ono regular basis, ' / ' 5 � | ( � Submissions of the Parties and Conclusions The union argues that there are enough hours to warrant en additional full-time position' and that it would benefit the program in [ernno of consistency of delivery and ability to market the pnognynl. | onm invited tp find that there is on appropriate full-time workload spanning both fall and Writer semesters in the foupoenmaaterfonnat' including Layout and Design and Reprographics in the faU, with the addition of Graphic illustration and \&eh Design in the Winter. As to whether courses such as Web Design are too specialized to be included with a full- time workload, the union submits that the evidence of the Coordinator should be preferred as she is closest to the situation. As well, counsel notes that the course doaohotion ahovve that the VVo6 Design course proposed is an entry |mVa| course. Further, counsel argues that since the College was able, on autnaOne|y short notice, to � find a port time professor who could take it on, in addition to her previous assignment, it is fair to conclude that the course is not as specialized as the College argues. Union Counsel argues that the College's strongest argument is that if Ms. Gtorto had not been coordinator in the Fall of 2006, her assignment of courses might have been such that there would only have been twelve hours |aft for the proposed new hire. The union's position in this regard is that since Ms. Storto had not taught a number of these courses in the last few years because of her coordinator duties, the workload formula would not load her so heov|h, and there would still be fourteen or fifteen hours for the new full-time faculty member, o respectable load fora new hire. More concretely, that oennaatmr is not e hypothetical. It was a semester during which K8a. GtoMo was coordinator and seventeen hours were taught by non full-time faculty. On the basis of K8a. Storto`o evidence, counsel for the union outlined in detail how the Print Media vvodx could he 6iothbutad to throe full time faculty nlnrnhana in the NSDP format, with one full-time faculty member taking vacation in each of the three semesters. She submitted that there would be an extraordinary number of other than Full-time hours in two out of the three nerOaateno. As to the issue of the third oemOnntor. oouOoai ( / ouhnndtod that the worst case nmsnahq is that the College would have hired o full-time - - ~ / faculty member who for part of the year had mlighter workload than usual, which could ( be dealt with by giving e heavier workload in other pohoda or by making other assignments such as research, marketing or working With new equipment. Further, the period between the grievance and the start of the new format deserves to be considered on its own merits, whatever view ia taken of the situation with the NBDP. For the CoUege, counsel argued that the union's omee is andnalv predicated on reading in part-time hours to 8rt|o|m 2, as there one no ooso|ono| or partial load hours in the usual winter semester. |t |a the College's submission that there iano erosion of the bargaining unit in the sense of the End Note in Aigonguin Coffege and OPSEV a decision of Arbitrator Knopf, dated May 27. 2003. nr discouragement from hihng partial load such as dealt with in the June 8 ovvgnd concerning the first port of this gdevanma. Nor in the OoUoQa's view is there evidence of the kind of erosion mentioned in Fanshawe College a decision of the majority of o Board chaired by Arbitrator P.C. Piohar, � doted July 29' 2005' The evidence is clear in the employees submission that part-timers are ua|nctod for their ( - expertise in the area they teach nsdler than for any other reason. Further, counsel underlines that the fact that full-timers might bring some benefits to the ppnWnynn is not the hasd under Article 2. Counsel submitted that if the College can oatobUoh that there vmzu|d not have been o full-time load in the academic year 2OOO/O7. that should end the matter, given that the new format ia entirely untested. The parties did not repeat their arguments on the issue of the requirements of o prima facie case and the use of part-timers eddnaome6 in the June 8 award dealing with the first portion of this ghevanoe' elaborating instead on the issues specific to the Phn1 Media program, Nonmthe|eoo, the disposition of this matter depends on whether hours currently being taught by part-time faculty are part of the equation, given the vvmy the jurisprudence on the question has evolved, eo set out|n more detail in the June 8 award, In light of that evolution, oocoam to part-time hours for the establishment of o full-time workload which will bm subjected tn the analysis of the operational requirements in article 2 hinges on whether the evidence shows that, as articulated in (P.C. Pichah, cited ehova. otpQ. 35: \ / ` 7 | |' � � ' / � —.the College has assigned hours topart-time positions ino manner that either intentionally or unintentionally functions to undermine the staffing scheme set out in the collective agreement and/or erode the bargaining unit and/or circumvent the collective agreement. ... In seeking to demonstrate o prima facie case respecting an oUmQed misuse of part-time hours, the Union may look to and na|y on the full "body ofvVorW'. In this portion of the grievance, part-time hours are an eaoeDUa| part of the union's effort to establish o prima facie 000e' and both counsel acknowledge that ifpart-time hours are not taken into account, this portion of the ghevance will not be ouoc000fui All of the recent decisions dealing with the nz|e of part-time hours under Article 2 eckncnm|edgm, each in their own way, the central fact that part-time hours or positions are conspicuous by their absence in Article 2. As elaborated by Arbitrator Knopf in the above-noted award, on the usual rules of contractual interpretation, the fact that the parties have articulated an explicit preference for full-time positions over all of ped- dnne' partial load and sessional positions on reduction of full-time staff or lay-off in Adinia / - ( � 27' but not in Article 2' msde6Uahme a distinction that arbitrators are required to respect. Unless, that is, part-time hours are being used in ovvay that threatens the intoQrbvofthe bargaining unit' which includes both partial-load and full-time regular positions, but not sessional and part-time haou|h/. This theme is sounded in the end-note of the Knopf ovvanj, as well as in St Lawrence College and OPSE e decision of a Board of Arbitration chaired by Arbitrator Ghinne dated May 18. 2005 and extended to � � deal with the ooperda of avoiding or thwarting the negotiated staffing scheme, in the � Fanshawe College (P. C. Picher) dec|oion, cited above. There was no suggestion that the assignment of part-time teachers in the Print Media program is done intentionally to undermine the staffing oohanoo, erode or avoid the bargaining unit. Further, although there was a third full-time faculty nnennbaF in Print Media before his retirement in 2000. the union did not file this ghevanms until 2005' and its argument was not booed on a failure to replace the retiree with e full-time position, vvh|oh would have put it within the framework referred to in St Lawrence College and OPSE /Shinnel odad above. There is no evidence before me concerning the workload / carded bv that full-time position,whether itstill exists in en equivalent quantity oFform, or | � \ ' ` � /- / how the remaining workload has been assigned in the intervening yeon*, and thus on ( insufficient basis for e finding of erosion, in the oeDom of wearing away or removing something from the bargaining unit, in respect of this position. Moreover, 'there is no evidence that partial load positions have been reduced and rap|omad by part-time positions and thus no case of erosion of the bargaining unit by failure to replace partial-load bargaining unit poo|lioDg. Nor is there evidence that bargaining unit positions are being systematically avoided, or that part-time hours were being used for the purpose of keeping them out of the mix of full-time partial load and sessional positions which are the building blocks of the staffing preferences in Article 2. Rather, there was some evidence of instances where partial load or sessional positions � � were created iO semesters where circumstances resulted in the need, and o former part- timer vvanevo||oNetopichupemtrohouco. This leaves as a potential basis for an argument of misuse of part-time positions the fact that there are enough hours in the period in question taught bv part-timers to make up one full-time vvorh|ood. which in the view of the union's vvitnaee is on appropriate / workload, but in the view of the College ianot. The union's evidence supports ofinding that there are viable vvoyo to build a full-time workload out of the non-part-time hours in the phnt K8md|o program, which could he assigned toa new 8JU-tiDlm,faou|tv member with the appropriate skill met. The parties differ over how easy it would be to find such a punson, but am persuaded that Ms. Storto' who has been the Ppognonn coordinator for over ten years and has expehenoa in the printing industry, in in an good a position as anyone to make an educated assessment of the availability of a,sufficient pool of qualified people tofill such a position were it to he posted. | accept this as prima facie proof of o viable full-time workload. This leads to the question of whether the union has made out o case for access to the part-time hours necessary to nDebn up the that workload and without which this portion of the grievance cannot succeed. The union's claim to these hours is part of its overall assertion that the effect of the College's heavy reliance on part-time hours is to distort the staffing situation so that preference is not ,given to full-time positions as required by Article 2. In assessing whether there has been g misuse of part-time hours, it is oppropdata to ( / situate them in comparison to the current use of full-time hours. The evidence | � � ( ' concerning full-time hours was that, in the two-year, format of the ' program, K8c Joe K8cLody, the non-coordinator full-time faculty member, was tvnico|v teaching 18 hours and that Ms. 8todoteught 13 hours In the fall and 10 in the winter, with the rest of her workload being Pa|eoae or complementary time for coordination and other dutiea, for a typical total of 31 full-time hours in the fall semester and 20 in the winter. Some hours of English and general education were also taught by full-time professors from other departments. One element of the union's proposal for the viability of e full-time load in the NGDP format would involve the re-assignment of f-a general education 'course to o full-time Print Media faculty member. As College counsel accurately notes, there is no basis in the collective agreement to require the College to prefer the assignment of courses to one set of full-time pnzhammnro over onother, and so this vvnu|d he o problem with the union's proposed workload arrangement in the new NG[}P format. However, it is not the fundamental issue here, which is the role ofpart- time houne, and whether the College is thwarting the staffing scheme of the collective agreement in how it |o using them. As noted above, the teaching hours in the typical fall semester ofthe four-semester � ) format of the program are significantly highor, in the vicinity of 88, whereas they are in the range ofG5 |n the typical winter semester. When considering the viability ofofull- time position throughout the oomdann|o year, the winter semester thus becomes the limiting factor. |n the winter semesters of2OOO and 2DD7' there were 23 and 2Bnon-fu|l- §nle houra, opnnpanad to 31 and 28 full-time hours respectively. In the winter of 2007, ( nine of those hours were taught by a partial-load faculty member; there were no other partial load or sessional hours in those semesters, This |movea 23 and 20 part-time hours in the winter semesters of 2006 and 2007, out of approximately 55 teaching hours, ! as a basis for the union's argument that the nunnehuo| situation of use of part-timers in � itself constitutes on eroded bargaining unit. As full-time faculty typically carry avvork|oad of about 16 teaching hours, this is sufficient for one additional full-time position. This level of use of part-time hours in itself, or as compared to the total other hours, is Dot. in my view, sufficient to warrant an inference of misuse on the evidence before nnn. /\nd, as noted above, other uopmuta of the iosue, such as erosion or intentional avoidance of the bargaining unit' are not supported by the evidence. As the evidence ( / etando, to accept that the union has made out e prima facie case of erosion of the ( .' � . ( ! | ' bargaining- ununit or misuse of hours in the of this portion of the � / - it would be necessary to infer from the fact that the College could have created one full-time workload out of the non-full-time hours, including mostly part-time hours in the limiting semester, that it is misusing part-time houro. Un|uee it can justify their use on the basis of operational requirements. The problem with this is that there is no discernible difference between that concept and o requirement for o preference of full-time over part-time positions at all bmao' not'ucd on lay-off and reduction of the full- time complement. The current wording of the collective agreement, ao interpreted inthe evolving jurisprudence, does not support such o requirement. It is true that, in not assigning the Print Media work identified by the union to afu|l-tinne faculty member, the College has not added a position to the bargaining unit' but that is not enough, standing alone, to make out a case for circumvention of the collective agreement or thwarting the staffing eohenna. The St. LawrencL Fanshawe and AtOoncluin College decisions referred to* ahove, none of which the union argued was wrongly deoidod, each to a different degrew, nUehe clear that although the employer does not have o free hand to assign part-time hours in a manner that erodes the bargaining unit or subverts the provaionmofth� ooU�c�vaaQraa[n�nt. th� coUeobveogromrn�ntdnnanotprnvid� g. . ` | free- standing preference for full-time positions over part-time ones' except on lay-off or � reduction of the full-time complement. Nor does the language of the collective | � agreement reserve teaching work exclusively to the bargaining unit positions. In these circumstances, this portion of the grievance cannot ou000ed' and it is not necessary to analyze the effect of the differing views of the witnesses as to the appropriateness of the proposed workload and the strength of the College's reasons for maintaining there were operational naquinaOlonto for not implementing such on assignment|n any event. |n this context, itio important to note that the reasons given by the college were not challenged as a pretext for avoiding using bargaining unit positions (although they are challenged in terms of whether they should be considered operational requirements). In aurn' | onn not persuaded that the evidence is sufficient to support g finding that the College is misusing part-time hours so that the integrity of the bargaining unit or staffing scheme is at issue, in any of the ways set out in the cases referred to above. Further. there being no preference for full-time over part-time positions in Article 2, the grievance ( ll cannot succeed on the alternate basis of the preferences set out there, which are limited i i to full-time over partial load and sessional positions. In the result, for the above reasons, I do not find the College's failure to designate an additional full-time position in the Print Media to be a breach of the collective agreement. Dated this 14th day of September, 2007. i Kathleen . O'Neil, Single Arbitrator i i 12