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HomeMy WebLinkAboutUnion (Theatre Arts) 07-09-17 ti 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#3—Dealing with the Theatre Arts Program BEFORE : Kathleen G. O'Neil, Single Arbitrator Counsel For the Union: Susan Ballantyne of Raven, Cameron, Ballantyne &Yazbeck Counsel For the College: Jock Climie of Emond Harriden The Theatre Arts program was dealt with on the hearing dates of April 16, 18 and June 20, 2007 in Ottawa, Ontario /- ( AWARD This decision deals with the Theatre Arts programn, the third portion of the union's ghevonne, filed on March 14' 2005. which alleges that the staffing arrangements in several programs of the College's school of Media and Design constitute a breach of the collective agreement. The first portion of the grievance, involving three other programs, was dealt with in o decision dated June 8. 2007` and the second in a decision dated September 14. 2007' na|meoed simultaneously with this decision. As noted in the previous two decisions, the union's overall position io that the College has failed togive preference to full-time positions under Article 2, and that their staffing practice, including . the preferential use of part-time hours, is eroding or circumventing the bargaining unit. The remedy claimed is that the College should give preference to full-time positions for | all available work, post and fill positions accordingly, and reimburse union dues. In the i Theatre Arts program, the union claims one full-time position. Facts / Theatre Arts is o program which trains students in various aspects of performance and production. Donald Laflamme, its coordinotor, and the union's vitneao, testified that there are two full-time faculty members in the prognynn, and enough teaching hours currently being taught by non-full-time feou}h/ to warrant o third full-time position. His evidence was that there are typically no oeeoinna|o, from time to time e partial load faculty member, and usually 8 part-time faculty members inthe program. In the period on which the evidence fooumed. September 2005 through April 2007. the two full-time faculty were teaching in the vicinity of 28 hours (12 for Mr. LaMonlnne who also has release time for coordinating and other duties, and in the vicinity of 16 for the other full- time faculty member) while the non-full-time hours were in the vicinity of 30 hourm, the highest being 33. In the fall semester of 2003, there was o third full-time faculty member teaching in the Theatre Arts program who is now teaching in a different part of the College. Ad that time there was another theatre progrann, known as Repadory, which was o one-year � pnpgnann, focusing on theatrical production, largely taught by Mr. Laflonnrno. During that semester, he only taught one course in the Theatre Arts program. When the repertory l � � � / | | i program was cancelled, Mr. Laflamme then taught full-time in the two-year Theatre Arts program. Mr. Laflamme testified that there was a need for the third full-time faculty member when there was one, and that nothing has changed in that respect. Mr. Laflamme also said that the number of teaching hours in the program has not changed, and that at the time there were three faculty members, there were also part-time faculty in the program. A third full-time faculty was not recruited for the Theatre Arts program when the third person was transferred out of the program. Other than Mr. Laflamme's comment to the effect that the third position was a technical theatre position to which actors would not likely have applied, neither party called evidence as to the specifics of the workload of the third full-time faculty member as it existed in the fall of 20Q3, or what became of it. The other evidence makes clear that the currently proposed full-time workload is made up of courses dealing with acting, directing and textual studies, rather than the technical theatre side of the program. Mr. Laflamme testified that he understood from the Dean at the time of the hiring of the third faculty member for the fall of 2003 that the reason for the third position was the number of part-time hours in the program at the time. College counsel objected to this evidence as hearsay, and asked that it be disregarded. The evidence was admissible in my view at least for the fact that it was heard by Mr. Laflamme, if not for the truth of its contents. In any event, it appears obvious that there were enough hours to make up a full-time workload if a full-time professor was assigned to it. Further, in the end nothing turns on the reasons for the hiring, so it is not necessary to comment further on the matter. The evidence is clear from both Mr. Laflamme and Ms. Cooke, who Chairs Theatre Arts, that the program has seen significant changes since the brief period when there were three full-timers teaching in the Theatre Arts program. A change of direction, referred to as an intensification of the instructional design by Mr. Laflamme, included bringing in a variety of new faculty, current practitioners from the.local theatre community, some with high profile in the theatre world. In the opinion of both witnesses, the changes in the last four years have increased the quality of the program and its acceptability in the Theatre Arts community and made it more attractive to potential applicants. Where the witnesses' points of view diverge is over the question of whether sustaining that quality ' requires the use of art-time faculty to the current extent. Put another way, they differ q p 2 ` /— \ over whether the ability of the College to attract faculty with currency in the profession would be compromised by consolidating the several less-than-full-time workloads into one full-time vvorhlogd, with a much reduced part-time component. Based on his knowledge of the theatre oonnnlundv. Mr. Lofen0[ne was confident the appropriate person could be found, whereas Ms. Cooke thought it would be very unlikely. K8n. Cooke was also concerned that o reduction in the waheh/ of part-timer professors would be e |ooa for the etudents, both in terms of contacts for job opportunities and teaching by those current in the most recent techniques in areas such as lighting and set design. And although she agreed with union counsel that e job posting could include a qualification to remain current, K80. Cooke did not see how that could be enforced once the person was in p|aoe, beoeuoe, for inotonoe, she has no power to force o person to take on on acting engagement. She would only be able to send a faculty member to workshops, and encourage other activities to maintain currency. The workload proposed by Mc Laflamme as making up o viable full-time load out of the ouh|eoto taught by other than full time foou|h/ vvnu|d have included for the hnU of 2005, / ) Voice and Movement and Studio III, which includes performance of Shakespearean and domoina\ texts, In the winter semester, the proposed vvoddood would include Studio ||' which takes up texts of playwrights VW|do` Ohekhov and |been, one section of Studio |V and Canadian Drama. Studio IV is a course which focuses on full play production as a cumulative performance. Students take on various roles, such as acting, set design, lighting and stage managing, in three different productions which are staged at intervals throughout the winter onnn/oter. In the winter semester of 2008. all three sections were taught by Mr. Lef|onnnnm, supervising student directors, In the most recent semester e new model was tried, using three professional directors, two part-time faculty as well as K8r. Loflanlmne, each directing one production. Other faculty teach the technical aspects such as set design and lighting. Ms. Cooke testified that the new model would not be possible ifthe course were assigned to one full-timer, and that the students would lose out because they would not be exposed to the aonne voheh/ of direction which gives them o richer experience of the different ways to stage aproduction. Mr. Laflamme indicated itcould ` 3 /- ( work with one person teaching two sections of Studio IV, and someone else teaching the third. A further aspect of the proposed vvoddoed over which the two vvitnomoeo disagree is whether a person who would have the directing credentials necessary for Studio K/ vvnu|d also have the eb|Kv to teach Voice and Movement otthe desired level. This course concentrates on the phvoiuo| aspects of acting, and in Mo. Cooke'o view requires someone who regularly practices the craft, analogizing it to a sport, where it is necessary to keep up the pnsoUom in order to maintain the skill. Again, K8c Laflonnnne thought that, with the proper search, w highly qualified candidate with the necessary enporboo in both skill sets could be found. By contrast, Mo. Cooke considered both courses to be highly speo!a|ized, and that finding someone to do both at the desired level would be very � � difficult. YWo. Cooke was also concerned that it would be o rare person who would he able to teach turn of the century and deeaiooi dronne as well as the above courses, which would be required in the proposed workload. She was of the view that any candidate was likely hobe deficient insd least one of the areas. L / Further, enrollment is not high enough in K80. Cooke'a opinion to sustain a third full-time ' position, in that the target is 40 otudente, vvh||e the course uoue(k/ has in the vicinity of 30. If the numbers are not high enough, something would have to be cut which would decrease quehty, or sections might have to be collapsed, which would mean fewer teaching hours. Release time for coordination dutiee, currently performed by K8c LaOamnrne, are covered by non-full-time faculty. The current two full-timers do not teach the aonno oubienie. and Mr. Laflamme indicated it would not be advisable for the other full-timer to teach the courses hoteaches. Rather than giving instructions to the coordinator about the use of partial load or part- time faculty, K80. Cooke said that loading is o subject of conversation between herself and the coordinator as they go along. She noted there had been use of both sessional and partial load faculty in the pnognsm, as well as part-time. ( 4 The Collective Agreement Portions of the collective agreement central to this dispute are eofollows: RECOGNITION 1.01 The Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged goteachers, counsellors and librarians, all as more particularly set out in Article 14' Salaries, except for those listed below: 0\ Chairs, Department Heads and Directors, (i0 persons above the rank of Chair, Department Head orDirector, Uii\ persons covered by the Memorandum of Agreement with the Ontario 'Pub\io 8en/ion Ennp|oyaoe Union in the support staff bargaining unit, Uv> other persons excluded by the legislation, and k4 teachers, counsellors and librarians employed nna part-time ur sessional basis. � NOTE A: Part-time iD this context shall include persons who teach six hours per week orless. \ | ' NOTE B: Sessional in this context shall mean en appointment ofnot more than 12 months duration in any 24month period. STAFFING .. 2.02 The CbUeoo Will give preference to the designation of full-time positions as regular rather than d teaching positions as defined iD Article 2G. Partial-load Employees, subject tosuch operational requirements as the quality of the program, attainment of the program obinctivea, the need for special quo|ifioationa, and the market acceptability of the programs to employers, students, and the community. 2.0' 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 pmrtiou|er, positions arising as o result of new post-secondary progmanne, subject to such operational requirements as the quality of the progrannm, enrolment patterns and expectmtinns, oftainnnent of program objectives, the need for special qua|Uicetione, and the market acceptability of the programs to ernp|oyern, 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 quo|bv of the pnognarna' attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations. ' ' 5 � � � � � ( Also referred to in the grievance are: Article 3. which provides, among other things, that there will be no discrimination on the basis of membership in the Union. Article 6, the management ri htodouae,vvhichincludesthefoUovvnQ: 8.01 It is the exclusive function of the Colleges to: ... (iii) manage the College and, without restricting the generality foregoing, the right to p|an, dinact and control openat|ono, fac|itieo, programs, courses, systems and prooedunea, direct its personnel, | determine onnnp|ennent, organizaUon, methods and the number, location and classification of personnel required from time to timne, the number and location of omrnpueoa and facilities, services to be performed, the scheduling of assignments and vvork, the extension, limitation, curtai|mnent, or cessation of operations and all other rights and responsibilities not opocdfico(k/ modified elsewhere in this ' Agreement. 6.02 The {}oUagaa agree that these functions will be exercised in o manner consistent with the provisions of this Agreement. and Article 27 which contains a procedure and o preference for full-time over sessional, partial load and part-time positions on lay-off or reduction of full-time employees and / provides that all vacancies o{full-time positions will heposted. The following portions of that article'orethe most relevant to this portion of the grievance: 27. O5 When e College plans to Jay-off nrto reduce the number offull- time employees who have completed the probationary period, orplans the involuntary transfer of such employees to other positions...the following procedure shall apply: .... |t being understood that the College reserves the right to determine the number and composition of full-time, port|eHuod and part-time or aeoa|nna| teaching positions, the College shall give preference to continuation of full-time positions over partimHogd, part-time or sessional positions subject to such operational requirements as the quality of the pnognymn, their economic viability, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to ernp|oyore, students and the community.... [details oY College Employment Stability Committee meeting procedure � and bumping process omitted for the sake ofbrevity] ' / 6 � ( 27.1iA Notice will ba posted inthe College of all vacancies offull-time positions in the bargaining unit. Such notice will be posted for at |aao five working days. At the same tinne, notice of these vaoono|oo will be sent to the Union Local President for distribution to the other Union Local Presidents. The College will also forward copies nf the notice to the other Colleges with the intention that they be posted. Ae well, Article 26.01 B defines a partial-load employee aaa teacher who teaches more than U and up to and including 12 hours per week on n regular basis. Further, Articles 20 through 23 provide for a variety of leaves, including Professional Development Leave, |eovmo without pay and Prepaid LeoYe, each with their own specific conditions and prerequisites. Amument and Conclusions As with the previous portions of this grievance, the union argues that there are enough hours currently assigned to non-full-time faculty to warrant an additional full-time /-- position. In oddibon, counsel refers tothe fact there was athird full-time posiUon, and no ` |onk of work to justify the fact that it was Oct replaced with another full-time pooitinn, Management made o decision to cnaota o full-time posibon, and then to transfer that full- time faculty member elsewhere in the College. The union maintains that the reasons for the transfer are irne|evont, unless they were related to |moh of sufficient work to justify a continuing full-time position. Union counsel atoasoea that the amount of work currently being dond by non-full-timers is still in sufficient quantity to make up a full-time position, and the coordinator of the program has outlined an appropriate workload to be arranged � � from those hours. Counsel submits that this evidence ahuvvo a prima facie 000e as � outlined in a decision of e Board of Arbitration chaired by Owen' Shime dated December 23, 2002. At pg. 2, that decision indicates that in order to establish a prima facie coae, the union must show that the position that had been occupied by the full-time faculty who retired has been filled by another full-timer person without being pooted, or in the a|tornoUve, that the position that had been occupied by the full-time person is being filled by others who are not full-time employees. ( 7 I i t I, Further, the union argues that the clear majority of the other than full-time hours are being carried by part-timers, such that, although there is no evidence of active discouragement of using partial-load or sessional positions, the numbers are eloquent in this regard. Counsel submits that there are typically no sessionals or partial-load faculty; there was only one reference to one of each that anyone could remember. Since there is no dispute that it is cheaper to use part-time faculty, counsel submits that it is unlikely to be a coincidence that normally all the non-full-time hours are part-time, Referring to the three cases central to the argument in the first portion of the grievance, Algonquin College and OPSEU, a decision of Arbitrator Knopf, dated May 27, 2003, St. Lawrence College and OPSEU, a decision of a Board of Arbitration chaired by Arbitrator Shime dated May 18, 2005 and Fanshawe College and OPSEU, a decision of the majority of a Board chaired by Arbitrator P.C. Picher, dated July 29, 2005, counsel argued that it should not matter whether there is intent to erode the bargaining unit, the effect is the same. I am invited to find that evidence of eight part-time and two full-time faculty is an eroded bargaining unit, that the employer has avoided the appropriate operation of Article 2, and that the union is entitled to rely on the significant number of hours that are taught each semester by other than part-time faculty, usually at least 30. Given the coordinator's evidence, the union urges a finding that the workload proposed is an appropriate one, for which a qualified candidate would be found with the appropriate posting and search. As to the remaining issue, i.e. whether the College has established operational requirements to avoid the negotiated preference for full-time positions, Union counsel submits that the employer's evidence is insufficient. . For instance, Ms. Cooke testified that the advice of the advisory committee had been supportive of hiring people coming out of the acting community. Counsel for the union submits that this should not be taken to be an operational requirement not to hire full- time faculty, but as an approval of hiring people like Mr. Laflamme, the current coordinator, who has both an academic background and experience in acting and directing. As to the College's concern that full-time faculty would lose their connection to the community, thus reducing their ability to assist students in finding placements and jobs, union counsel underlines that the Chair of the program acknowledged in evidence that the posting could include a requirement to maintain currency in this regard. Although stressing that the evidence demonstrates that it is compatible with a full-time position to remain engaged in the artistic community, union counsel acknowledges that l 8 . . /— ! - full-time acting engagements would not be. Further, the collective agreement provides various types of leave that could be used to pursue other types of engagement. As to the concern about not being able to do the Studio IV productions in the format used most rooentk/, with three different directors, counsel notes N1: Laflernnne'o evidence was that it would be feasible to have one person do two of the shows, or the first production could be assigned tqanon-fuU-tinnnr. For the Co||ege, counsel auhrnha that there is no erosion, intentional or otherwise disclosed by the evidence. Aohothe evidence that there was athird full-time position for one semester several years ego, counsel submits that does not support the conclusion the union seeks. During that time there were two programs, Repertory and Theatre Arts. When Repertory was cancelled, Mr. Laflamme taught full-time in Theatre Arta, and the third full-time faculty member was assigned o|aavvhera. Counsel underlines that the evidence does not indicate that there was on abundance of hours just in Theatre Arto, Further, College counsel notes that the evidence does not disclose if there was o connection between the demise of Repertory and the transfer of the third full-timer, but they happened around the oenne time. In counsel's submission, one of the three /- ` ) prnfeaaormmmu|d have had toleave when Repertory was cancelled in any event. More baeiooUy, counsel argues thet, when replacement for coordinator release time and specialty courses are token into account, there are not currently sufficient hours for o full-time poaUUon, and the structure of the program is different from when there were three positions. Further, the clear evidence, from both vNtnenoeo, of the positive contribution made by the pmrt-timnaro, refutes any suggestion of bad faith or anti-union oninnuo, and supports the College's bona fide operational nequinennento, in the employees view. College counsel submits that the evidence is that the advisory committee recommended more actors on hsou|tv, that was put into practice and evmryone, the union's witness included, thinks the program is far ahead of where it was a few years ago. In counsel's submission that clearly falls Withthe exceptions laid out in Article 2. This success would he compromised by hiring another full-time faculty member, because it is not feasible, in the College's submission, for full-time fonuKx member to bring the wealth of currency that the various part-time faculty nnnnnbaro dn. As to the union's suggestion that the ( � - ' /~ / leave provisions could beused to ensure currency, counsel replies that they are too limited. Firstly Article 21.01 discourages giving leave during the teaching term, and oeto paid |wmvew' they are only available to professors with at least six years in the bargaining unit, and there is o |irnd on the number offaculty who can be off at any tinne. Most bmmioaUy, employer counsel argues that the collective agreement does not require the College to cobble together position out of part-time assignments. To the extent that certain of the findings in the Juno 8. 2007 decision dealing with the find segment of this grievance suggests otherwise, in counsel's submission, it cannot be reconciled with the Knopf decision, cited above. For |natance, counsel queries the fact that the Knopf mvvonj aeyo nothing about avoiding partial load hours. while the June 8 decision on the first portion of this grievance dealt with e situation where the evidence indicated a systematic avoidance of partial load bargaining unit positions. In any event, counsel underlines that there is no evidence that there is any oyotonnoUo practice of avoiding podie| load positions in the Theatre Ado pnognano, and there was m partial |nod position !oot semester. Further, although union counsel argued that the evidence ohovvo that there were virtually no partial load positions, the College does not agree. The evidence ( | showed the aggregate non-full-time hVVro, but did not identify which were part-time. Given the union has the onus of proof on this pnint, and evidence could easily have been called to deal with this point, I am urged not to make such a factual finding. � � Referring to the Knopf decision, in particular, employer counsel argues that the proposition that intent is not noonaomry for o finding of erosion of the bargaining unit should not be accepted. As set out in the endnnte of that ooae, such e finding should require intent, bad faith or anti-union animus, none of which are alleged in this case. Counsel for the College invites m finding that this is o uooe like the Police Foundations program dealt with in the Knopf award cited above and for consistency's sake should be decided in e similar noennmr. There is significant usage of pert-time because management believes it is in the best interests of the program and students, and there is evidence to bock it up. Further, employer counsel underlines that the College is not u||ovved to average vvork|ood, or "just pay overtime" under the collective agreement to ( . /~ < deal with uneven work over the semester, something suggested by the union to deal With the desired delivery of Studio IV. The College's position is that the evidence justifies the use of part-time staff for courses such as Voice and Movement and Studio |V. K8m. Cooko, the program chair believes Voice and Movement requires o different expertise than for Studio IV which requires the professor toassume a directing function. College counsel suggests the best reference point is the fact that neither of the current full-time faculty would be in a position to teach Voice and Movement. | am invited to find that there is real expertise that the College is naenonob|y seeking in these areas outside the full-time faculty, ' | Counsel also submits that there is o valid operational naquirornerd for not including , release time in the calculation of the hours available for e new full-time workload. The two current full-time professors do not teach any of the same courses. Under the union rnnde(, the third full-timer would also have very distinct an»om of expertise. Should W1c Laflamme decide to give up coordinator duties or the College oaoiQn someone e|ee, which they one each entitled to du, the hours would not be transferable onnnng the three, ( / in the employers estimation. This would result in e part-timer having todo the work, and one of the full-time faculty would be under loaded. Do||mgmcounsel stresses the notion nf deference tonlonogernen�a decision nnaking. and the idea that it is not the role of arbitrators to substitute their opinions; rather the question is whether the employer has exercised its discretion reasonably and in good faith. | onn invited to accept the Chair's evidence that it would be a real disservice to have the same person teaching the proposed workload, and that it would hurt the quality of the program to lose the'varlous part-timers who are actively involved in their theatre specialties, It is the employer's position that the evidence supports nfinding that management's discretion was exercised in o manner consistent with the collective ognaernont in that there were bona fide operational requirements for not creating o third full-time position. Further, employer counsel notes that even the union witness was not sure someone could be found locally todothe proposed workload. |tiathe College's submission that they should not have to scour the province or the country to find a qualified person, and that this aspect itself indicates that the proposed workload is not o nammoneh|e one. In ( D /~ ! ' counsel's oubnn�oiun. the cunnntatof�n0 configuration, mn, ungon?ixnffull-Unnoondhigh onz0e part-time faculty, is serving the students very well, LoaUv, the employer argues that enrollment patterns, one of the operational requirements set out in Article 2, provide another reason not to order a fuU'Unne workload. ' The program has not recently met its target of 40 otudentn, and is of considerable concern to the administration in this respect. If the program were reaching the target number, the staffing situation [night be "o different oton/', in the arnp|oyaeo view. In nap|y. Union counsel noted that in the decision dealing with the Police Foundations program, Arbitrator Knopf did refer to bad faith as a circumstance in which part-time hours could be looked at, but did not say that was the only circumstance when part-time hours could be considered, Counsel notes that the decision did not say how an argument of unintentional erosion would have been handled. Counsel notes that the union is not arguing the erosion of the bargaining unit is intentional, and that there is no evidence one way or the other aotointent. Analogizing to the idea of adverse effect / . discrimination, union counsel asserts that the impact hurts just as much. On the question of the ahi|hv of a full-timer to maintain the requisite level of currency. � union counsel submitted that this should he viewed in the context that one of the part- timers' experience at the National Arts Centre is more than five years old. Further, the union does not accept that the replacement hours for coordinator release time should be excluded from the hours avoi|oWa for a new full-time vvoddned. In the union's submission, the full-timer faculty are not in "silos" with no ability to teach other courses. Further, a new full-time position would tmho up only about half the available hours. There would still he part-time faculty. Nor would Mr. Laflennnne be under-loaded in the fall; if he gave up coordinating, and took on four teaching hours in addition tothe twelve he already hmo, he would obU have o full-time load well within the typical range. Union counsel submitted that there was no reason to believe that yWc LaDononle' an actor who also dinaota, is unique in possessing the expertise to teach Studio |V as well no noting onuroen, and thus itio reasonable to accept that similar expertise would likely . . . ( be available in the community to fill wthird full-time position. Further, the idea that Voice and Movement and Studio U| could not be taught by the same person is belied by the evidence that one person has taught both in the ooaL Counsel submits that |fitwere o nan| dieean/icn to the students, she would not have been hired to do both. As to the employers submission that it is unreasonable to mwh the College to look provincially or nationally, counsel notes that there is no evidence of what the current practice is, other than Mr. LgOonnnne'e evidence that the program is affiliated with o national*organization through which it would be easy to advertise widely tofind the best candidate, As to enrollment, it is the union's submission that the evidence only deals with |eve|a, not pottenne, as would be the omae if there were o heavier workload in one semester than another. Further, enrollment levels are not referred toin the collective agreement, and the operational requirement concerning enrollment patterns is only found in Article 2.03, the preference for full-time over sessional positions, which is not what is at issue in this case. / The union bases its or1n7e facie case on two ooneobs of the facts: the existence of a third full-time position in the Theatre Arts program in 2003. which was not continued, and the number ofhours being assigned to non-full-time feou|tv, which is argued on having the � effect ofan eroded bargaining unit. The first oftheo6 grounds falls within the framework set out inboth St Lawrence Co/lege and_OPSEJ and cited above. This approach is 000enda)|y based on the argument that work was in the bargaining unit' and is no longer, and thus should be returned there. This is a hind of erosion that is not uoue|k/ analyzed in terms of intent; it is o question of where the work belongs according to the language of the collective agreement. As support for this argument, the union refers to the evidence that a third full-time faculty member was transferred out of the prognam, and now there are only two full-time faculty members in the Theatre Arts program, and that nothing has changed as to the quantity of work in the program, The evidence did not disclose the 13 . . _ / ' workloads of all throe professors who taught in Theatre Ada for the one semester in 2003' and an it is not possible to making o finding as to whether the position, in the sense of the courses or their equivalents, that were taught by the third full-time faculty member still exist in the Theatre Arts program. Nonetheless, it was clear that during.that oerneatwr. K8c Laflamme only taught one course within the Theatre Arts proQnsno itself, The rest of his workload was in the one-year Repertory program. These are no doubt re|atedprogronno' mndthethreeproh*aoorataught"togathe/' inthoThaohn /\rtopnogrenn in that Mr. Laflamme had one course in the program. Nonetheless, the evidence does not �upport a finding that three full-time positions were assigned within the Theatre Arts program oa constituted in2003' ot the time of the grievance orsince. Rather itindicates that for one omrneotar there were three full-time faculty nnennhona assigned in the two theatre programs Repertory and Theatre Ado. after which Repertory was oanoe||ed, presumably taking with d the courses Mr. Laflamme had been teaching which made up most ofa full-time workload. The evidence did not indicate that courses from Repertory made their way into the current line-up of courses in the Theatre Arts program. Further, N4[ Laflamme then took on one of the two full-time vVo[k|oode in Theatre Arts. This evidence does not support finding that e full-time workload within the Theatre Arts pnuQnann was parceled out to nnn-fu|l-bmnera, which would be the kind of case of erosion, or failure to post o vacant full-time pnoition, as described in the St. Lawrence and Geotge Brown deoioiono, cited nhowa. In the reou|t, opdnw facie case on this prong of the argunnenthoo not been made out, � The second prong of the union's argument was expressed succinctly in counsel's submission that two full-time and eight part-timers is on eroded bargaining unit. The evidence did not establish that the workload prnpoaed, or the onureea, were in the bargaining unit, and have now been removed. Thus, the argument is essentially that the part-time hours currently outside of the bargaining unit, should be in the bargaining unit. In this respect, it is the union's position that intent is not necessary; that it is effect which is important. There 1a support for the idea that intent is not necessary in the Fanshawe College (Picher) decision cited above, in its discussion of the theme of misuse of part-time hours, in a manner that undermines the staffing scheme agreed to by the parties or circumvents or avoids the collective agreement. Am College counsel underlines, similar support ianot ( 14 , . ` 7 bobefound in the Algonquin Coflege (KnooD dmciekon, also cited above. However, the . ALgonguin College decision preceded the (6hinoe) ondfanshawe Colle ge P.[1 Pichmh decisions, and thua, obvouslv, did not comment on them. | agree with union counsel's submission that the issue of unintentional erosion or circumvention of the bargaining unit was not dealt with explicitly in the Koop� decision dealing with the Police Foundations program. The intervening decisions in �at.. Lawrence Co/le-ge (Shinnm) and Fanshawe College (P|oheh have developed the jurisprudence further, and | accept as the ourrent formulation the finding at page 38, of the majority of that Board of Arbitration in the Fansha�ye decioion, that part-time hours may be considered by o Board of Arbitration in on article 2 grievance where the Union can establish o prima hacle 000e that the College has assigned hours to part-time positions in o 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. As noted, the union says that the bargaining unit is eroded by the College's use of part- time faou|ty, but has not alleged that the College has intentionally done so. Erode ( - means to eat or wear away, involving the movement ofsomething from one place to � another. [>ne vvoy that unintentional erosion of the bargaining unit might occur would be � o situation where o partial load or other bargaining unit position were divided among part4imers who are outside the bargaining unit, for reasons unrelated to the status of the positions within or outside the bargaining unit. Hnvvewar, where the work was not in the bargaining unit in the first place, it is difficult to deal with the issue as erosion; it is more susceptible to being analyzed as to whether the evidence indicates nirounovention, undermining or avoidance of the bargaining unit. In this negmrd, at one point in the orgunlent, counsel put it that, given the economic advantage of using part-time rather than full-time faculty, it is no accident that the great majority of non-full-time hours are part-time, But the expression "no accident" irnp|h»o interd, as does circumvention or avoidance. As union counsel acknowledges, there is no evidence one way or the other on intention in this portion of the grievance. Without any evidence of intention, the question is whether unintentional nn|auoo of part-time hours has been shnvvn, something that functions to undermine the structure of the collective agreement, although ( 15 ` /— un|OteDboDo]k/. Here' it is said simply that the situation is de facto erosion where thirty hours of part-time work ioe regular feature of the program's staffing and there is oviab|e full-time workload within those hours. If the aitUgboO were that the collective agreement reserved the work done by members of the academic bargaining unit exclusively to thmnn' it might be e fairly straightforward matter to respond to that proposition in the affirmative. But that ie not what the collective agreement provides. Instead, the situation is that there are full-time and less than full-time faculty positions both inside and outside the bargaining unit (full-time and partial load are inside; sessional and part-time are outside). And, although the collective agreement deals with the non-bargaining unit part- time anduoaoiona| pooitionoinavohetyofvvayo. itotopoohortofprovidingapnaferenca for full-time over part-time poaitions, except on lay-off or reduction of the full-time oonnp}ennonL It was not argued that the facto pertinent to the Theatre Ado pnognynn � disclose such areduction. |n these circumstances, the existence of the ability tocreate � | a full-time workload by consolidating part-time assignments, in itma|f, does not spell e � violation of the collective agraennont, or even a prima facie case to which the employer � must respond as to operational requirements. It is also appropriate to note that, although Article 27.11 of the collective agreement does provide that a vacancy in afull- time position in the bargaining unit must be pouted. it was not argued that the potential ` workload should be considered a vacancy in the bargaining unit. So, the remaining basis for the erosion/circumvention argument is the assertion that the numbers speak for themselves. The numbers are between 3O and 38 part-time hours (on the assumption for the sake of argument that all the non-full-time hours are usually part-time) compared to about 28 full-time houro, or slightly more than half of the program's teaching hours referred to in evidonoe, out of which one vioh|n on-going full- time workload could be noodm. Given the current structure of the collective agreement, this level of use does not in itself indicate miouae. Without some demonstration of how the negotiated staffing scheme was thwarted or the collective agreement unintentionally undermined by the numbers of part-time hours used in this progrorn. Given that the collective agreement does not provide the preference for full-time positions for all work requested in the grievance, as nntmd, the evidence of potential full-time workload among part-time positions alone is not enough to noohe out prima facie case. It is therefore unnecessary to dno| with the parties' different views of the elements of the College's case on operational requirements. 16 In the result, for the above reasons, I do not find the College's failure to designate an additional full-time position in the Theatre Arts program to be a breach of the collective agreement. Dated this 17th day of September, 2007. I I Kathleen G. O'Neil, Single Arbitrator i 17