IN THE MATTER OF AN ARBITRATION

BETWEEN ONTARIO PUBLIC SERVICE EMPLOYEES UNION

the Union

AND

GEORGE BROWN COLLEGE

the Employer

AND IN THE MATTER OF UNION GRIEVANCE 98C292 ACADEMIC

BOARD OF ARBITRATION Robert D Howe Chair Sherril Murray Union Nominee Rene St Onge Employer Nominee

APPEARANCES

For the Union Elizabeth Mitchell Counsel Damien Wiechula

For the Employer FG Hamilton Counsel Sally Roy David Ivany

A hearing in the above matter was held in Toronto Ontario on September 8 1999 March 13 and 15 October 23 and 25 November 29 and December 11 2000 April 9 May 29 June 4 and 11 November 12 and December 3 and 10 2001 and January 11 March 14 and 15 May 31 and June 5 and 21 2002 AWARD

This case arises out of a union policy grievance

98C292 filed by OPSEU Local 556 on February 24 1998 The

Union grieves that George Brown College also referred to in this award as the College and the Employer for ease of exposition has assigned inequitable and unreasonable

in workloads to sessional appointed professors sessionals violation of Articles 602 and 1105 of the collective agreement the Agreement

Those articles provide as follows

Article 6 MANAGEMENT FUNCTIONS

601 It is the exclusive function of the Colleges to

imaintain order discipline and efficiency

ii hire discharge transfer classify assign appoint promote demote lay off recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent provided in this Agreement

iii manage the College and without restricting the generality of the foregoing the right to plan direct and control operations facilities programs courses systems and procedures direct its personnel determine complement organization methods and the number location and classification of personnel required from time to time the number and location of campuses and facilities services to be performed the scheduling of assignments and work the extension limitation curtailment or cessation of operations and all other rights and responsibilities not specifically modified elsewhere in this Agreement

602 The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement Article 11 WORKLOAD

1105 The parties agree that no College shall circumvent the provision sic of this Article by arranging for unreasonable teaching loads on the part of persons who are excluded from and not included in the academic bargaining unit

On March 14 2002 we were advised by counsel that grievance 0030 OPSEU File No 01C039 has also been referred to us on the agreement of the parties on the understanding that consideration of that grievance which is of a similar nature will be deferred until after grievance

No 98C292 has been heard and decided

Teachers as well as counsellors and librarians employed on a sessional basis are expressly excluded from the bargaining unit by Article 101 NOTE B of which provides that sessional in this context shall mean an appointment of not more than 12 months duration in any 24 month period

The permitted duration of excluded sessional employment and the effect of exceeding it are dealt with in greater detail in

Appendix VIII to the Agreement

Article 2 of the Agreement contains provisions requiring the College to give preference to the designation of fulltime positions as regular rather than sessional or partialload teaching positions and precluding the College from abusing sessional appointments by failing to fill ongoing positions or by combining sessional with partialload service

Although the Union has filed grievances against the College

2 are alleging violations of those prcisions those grievances not before us in these proceedi s and the grievances which are do not allege a violation of Article 2

During the course of these protracted proceedings we heard extensive oral evidence from a total of six witnesses

In addition to their testimony 77 exhibits including a number consisting of multiple documents were entered into evidence during the course of the hearing Although we have

of all found it unnecessary to include a detailed recitation of that evidence in this award in making our findings and

of the reaching our conclusions we have duly considered all oral and documentary evidence the extensive and very able submissions of counsel and the usual factors germane to assessing evidentiary reliability We have also considered

the the inferences which may reasonably be drawn from totality of the evidence

The two witnesses called by the Union were Damian

Wiechula and Elizabeth Watt Mr Wiechula has been a

fulltime teacher at the College for over twenty years and is

the First VicePresident and Chief Steward of Local 556 Ms

Watt was hired by the College as a fulltime teacher in 1988

and remained in that position until she was laid off in 1996

Following her layoff she accepted some sessional work which

was offered to her by the College She also filed a number of

grievances which were settled on August 3 1999 by a

Memorandum of Settlement and Release signed by Ms Watt and by

representatives of the Union and the College

3 When counsel for the Union sought toadduce evidence comparing Ms Watts fulltime workload and her sessional workload counsel for the College objected to its admissibility After hearing submissions regarding that issue the Board decided to admit that evidence and to reserve ruling on the weight if any to be given to it Having now had the benefit of further submissions on that matter and additional time to reflect upon it we have decided that it is not appropriate to give any weight to that evidence Although the reasonableness of Ms Watts sessional teaching load was not expressly raised in the grievances which she filed following her layoff it was raised during the course of the grievance procedure and in our view was one of the matters covered by the Memorandum of Settlement and Release the final paragraph of which reads as follows

6 This settlement is a complete settlement of all issues in dispute in respect of the grievance and is a resolution of all matters that were raised or could have been raised in this grievance

All of the Colleges covered by the Agreement including George Brown College use a Standard Workload Form

referred to in the Agreement and in this award as a SWF in the assignment of workloads to teachers covered by the

Agreement Article 1102 provides in part as follows regarding that form which is Appendix I to the Agreement

1102 A 1 a Prior to the establishment of a total workload for any teacher the supervisor shall discuss the proposed workload with the teacher and complete the SWF attached as Appendix I to be provided by the College The supervisor shall give a copy to the teacher not later than six weeks prior to the beginning of the period covered by the timetable

4 1102 A 2 The SWF shall include all details of the total workload including teaching contact hours accumulated contact days accumulated teaching contact hours number of sections type and number of preparations type of evaluationfeedback required by the curriculum class size attributed hours contact days language of instruction and complementary functions

Article 1102 A 1 a requires the College to complete SWFs for members of the bargaining unit However

with the Agreement does not impose any such requirement

of respect to sessionals Thus although Sessional is one the categories listed on the Standard Workload Form it is

which clear that a college such as Georgian College prepares

SWFs for sessionals does so on a voluntary basis It has not been the practice of George Brown College to prepare SWFs for

sessionals and it is unwilling to so voluntarily

Article 1101 contains detailed workload provisions

occupying six pages of the Agreement which apply to members

of the bargaining unit including the following

1101 A Each teacher shall have a workload that adheres to the provisions of this Article

ll01 B 1 Total workload assigned and attributed by the College to a teacher shall not exceed 44 hours in there are any week for up to 36 weeks in which teaching contact hours for teachers in postsecondary programs are and for up to 38 weeks in which there teaching contact hours in the case of teachers not in postsecondary programs

The balance of the academic year shall be reserved for complementary functions and professional development

Workload factors to be considered are

i teaching contact hours

ii attributed hours for preparation

5 iii attributed hours for evaluation and feedback

iv attributed hours for complementary functions

ll01 D 1 Weekly hours for preparation shall be attributed to the teacher in accordance with the following formula

RATIO OF ASSIGNED TEACHING CONTACT HOURS TYPE OF COURSE TO ATTRIBUTED HOURS FOR PREPARATION

New 1 110

Established A 1 085

Established B 1 060

Repeat A 1 045

Repeat B 1 035

Special A as indicated below

Special B as indicated below

110D 2 No more that four different course preparations or six different sections shall be assigned to a teacher in a given week except by voluntary agreement which shall not be unreasonably withheld

110D 3 For purposes of the formula

i New refers to the first section of a course whichthe teacher is

teaching for the first time This definition does not apply to a new fulltime teacher who has previously taught the course as a PartialLoad Sessional or Parttime employee nor to courses designated as Special as defined below or

teaching for the first time since a major revision of the course or the curriculum has been approved by the College ii Established A refers to the first section of a course which the teacher has previously taught but not within the previous three academic years

iii Established B refers to the first section of a course which the teacher has taught within the previous three academic years

o o

v Repeat A refers to another section which the teacher is teaching concurrently with the same have course for which hours of preparation been attributed under New or Established but to students in a different program or year of study

vi Repeat B refers to another section which the teacher is teaching concurrently with the same have course for which hours of preparation been attributed under New or Established or Repeat A to students in the same program and year of study

vii Special A refers to sections of courses in which students may enter on a continuous intake basis or courses which have been organized into individualized selflearning packages

viii Special B refers to preparation for sections of a course in which the objectives describe the students application of knowledge in actual work settings

ll01 E 1 Weekly hours for evaluation and feedback in a course shall be attributed to a teacher in accordance with the following formula

RATIO OF ASSIGNED TEACHING CONTACT HOURS TO ATTRIBUTED HOURS FOR EVALUATION AND FEEDBACK

Essay or Project Routine or InProcess Assisted

10030 10015 100092 student per student per student per

7 1101 E 2 For the purposes of the formula

i Essay or project evaluation and feedback is grading

essays

essay type assignments or tests

projects or

student performance based on behavioral assessments compiled by the teacher outside teaching hours

ii Routine or assisted evaluation and feedback is grading by the teacher outside teaching contact hours of short answer tests or other evaluative tools where mechanical marking assistance or marking assistants are provided

iii Inprocess evaluation and feedback is evaluation performed within the teaching contact hour

iv Where a course requires more than one type of evaluation and feedback the teacher and the supervisor shall agree upon a proportionate attribution of hours If such agreement cannot be reached the College shall apply evaluation factors in the same proportion as the weight attached to each type of evaluation in the final grade for the course

1101 F Complementary functions appropriate to the professional role of the teacher may be assigned to a teacher by the College Hours for such functions shall be attributed n an hour for hour basis

An allowance for a minimum of five hours of the 44 hour maximum weekly total workload shall be attributed as follows

three hours for routine outofclass assistance to individual students

two hours for normal administrative tasks

1101 I Teaching contact hours for a teacher in

8 postsecondary programs shall not exceed 18 in any week Teaching contact hours for a teacher not in postsecondary programs shall not exceed 20 in any week

ll01 J 1 Notwithstanding the above overtime worked by a teacher shall not exceed one teaching contact hour hours in in any one week or three total workload any one week and shall be voluntary

101 J 4 Probationary teachers shall not be assigned teaching contact hours or total workload hours in excess of the maxima in any circumstances

The first collective agreement that included the workload formula was the 198587 collective agreement which was finalized through a medarb process conducted by

Arbitrator Teplitsky Although the numbering of that article has changed from Article 4 to Article 11 its substantive provisions including what is now Article 1105 have remained unchanged since that time Under the preceding collective

agreement the maximum number of teaching contact hours per week had been 20 for postsecondary and 22 for non postsecondary The workload formula reduced each of those

two maxima by two hours per week The College made a similar

change in its policy regarding the maximum number of weekly

teaching contact hours to be assigned to sessionals by

reducing it from 20 to 18 for postsecondary programs and

from 22 to 20 for non postsecondary programs Although they

have occasionally been exceeded the evidence indicates that

during the ensuing years those maxima have been applied by the

College to an overwhelming majority of sessionals It also

9 indicates that the College has not applied any other aspects of the workload formula to sessionals nor produced SWFs for sessionals

In September of 1986 Local 556 filed a grievance alleging that the College had breached the collective agreement in that Sessional Employees have been give excessive and unreasonable workloads That grievance was signed by Eric Lord who was the President of Local 556 at that time In responding to that grievance the Colleges

Director of Personnel Sally Layton who subsequently became the Colleges VicePresident of Human Resources and whose name subsequently became Sally Roy sent a letter to Mr Lord advising that J Turner who was the Colleges VicePresident of Administration would be issuing a memorandum immediately to all Deans and Chairpersons stating that as per the

Collective Agreement Article 405 sessional employees should be assigned reasonable teaching loads Article 405 refers to what is now Article 1105 However Mr Lord was not satisfied with the wording of Mr Turnersmemorandum as reflected by the following memo which he sent to Ms Layton on

October 20 1986

With respect to the memo from J Turner to Deans and Chairpersons regarding the above noted grievance re unreasonable workloads for sessional teachers we feel that the wording of this memo does not adequately reflect the spirit of your letter

Reasonable workloads should comply with the other limits contained in Article 4 of the contract as well as the weekly total workload of 44 hours Sessionals teaching post secondary programs should not exceed 18 teaching hourweek and in nonpost secondary should not exceed 20 teaching hoursweek The number of

10 subjectscourses or sections should also be reasonable

For the rievance to be resolved a further memo specifyin the above should be issued immediately

Although that memo suggests that the Union was not satisfied with the Colleges response the rievance was not taken to arbitration nor was any other rievance filed or taken to arbitration prior to 1997 Thus the Colleges practice of assinin sessionals up to 18 teachin hours per week in postsecondary prorams and up to 20 teachin hours per week in non postsecondary prorams continued without further challenge by the Union for more than a decade

The Unions interest in the Colleges employment of

sessionals was piqued in the mid 1990s by their increased use

in the face of a substantial decline in the number of

fulltime academic employees The Union was also concerned

about the results of the 199697 and 199798 CAAT Academic

Workload Surveys conducted by the Office of Collective

Barainin Information in consultation with the College

Relations Commission Information Services CRCIS Advisory

Committee Those surveys which compiled information on the

basis of SWF data provided to the Office of Collective

Barainin Information by over 20 23 for 199697 and 22 for

199798 of the 25 community colleges in Ontario indicated

that the teachin hours per week workload hours per week and

student contact hours per week for fulltime faculty at the

College all exceeded the provincial average Extrapolatin

from that data led Mr Wiechula to conclude that a sessional

a teachin 18 hours per week at the College would likely have

11 total of between 48 and 49 workload hours per week while a sessional teaching 20 hours per week at the College would likely have a total of between 533 and 545 workload hours per week Concerns expressed by Ms Watt and other teachers regarding the workloads which they were given as sessionals after being laid off from fulltime positions also constituted part of the background which led to the filing of the union policy grievance as did Mr Wiechulas concern that the reasons which the College was providing for using sessionals were expanding in scope

In monitoring the Colleges use of sessionals the

Union relies primarily upon the information provided to it by the Employer pursuant to the following provision of the

Agreement which is currently Article 2712 but was previously Article 815b

Personnel Lists

2712 During the last week of September January and May the College shall notify the Union Local President of all personnel covered by the Agreement hired or terminated since the last notification together with the classification location and Division or Department concerned At such times the College shall also include notification of all hirings of personnel assigned to teach credit courses including in particular sessional appointments

Although the form of the sessional appointment lists which the College has provided to the Union pursuant to that provision the Article 2712 lists has varied somewhat over the years they generally have included the names of the

sessionals their start dates and termination dates the departments in which they are teaching and the number of

12 198789 hours per week they are teaching The 19851987 and

collective agreements included a paragraph in Article 815b

requiring the College to notify the Local Union President of

who are all persons hired to teach credit courses commencing

in the month of September of 1986 their classification hours

of teaching subjects taught and department but the parties

the agreed to delete that paragraph in 1989 However

of Employer continued to provide the Union with hours

teaching information even though it was no longer required to

Article lists do so by the collective agreement The 2712

also sometimes include the rationale for the appointment

Sessionals are generally hired by the College to replace

fulltime employees who are absent on sick leave or other

leaves of absence to cover unexpected enrolment increases or

requirements for split sections to accommodate students

needing remedial assistance and to teach in situations in

which there is uncertainty regarding the continuation of

funding When sessionals are hired to replace absent

fulltime employees it is often not a direct onefor

replacement because course coverage may necessitate some

rearranging of fulltime courseloads in order to ensure that

the absent teachers courses are being taught by individuals

The with the necessary level of expertise and experience

unavailability of a qualified sessional to teach at a

particular time of the day may also be a factor necessitating

some rearrangement of assigned courses particularly where the

sessional is being brought in on short notice to replace a

13 teacher during an unanticipated absence Some shifting of courses may also be done in order to accommodate another

fulltime teachersinterest in having an opportunity to teach a course which has previously been taught by the absent teacher or in order to accommodate requests by fulltime teachers to avoid being scheduled to teach at certain times of the day It may also reasonably be inferred from the totality of the evidence that another reason why the courses taught by a sessional may differ from those which would otherwise have been taught by the fulltime teacher who is being replaced is that the College perceives the inapplicability of the Article

11 workload formula to sessionals as giving it greater flexibility in making teaching assignments to them

Much of the evidence which the Union adduced in support of the grievance took the form of theoretical SWFs prepared by Mr Wiechula on the basis of the formulae contained in Article 11 Mr Wiechula prepared those theoretical SWFs using information which he obtained from materials provided by the College including SWFs for fulltime employees timetables course outlines and information whichthe College provided to the Union after the

Board made a production order on the first day of the hearing of this matter Since adequate documentation was not available for the 199798 academic year the College offered to provide documentation regarding sessionals employed by the

College in the 19992000 academic year and the Union accepted

that offer

14 The Union had previously attempted to obtain workload data for sessionals through the Workload Monitoring Group established pursuant to Article 1102 and after this proved to be unsuccessful through a grievance filed under the workload resolution arbitration process for which that article provides In an unreported award dated July 26 1998

Workload Resolution Arbitrator Howard Snow concluded that the

College was under no obligation under Article 1101 or 1102 to provide that information to the Union However as expressly noted on page 8 of that award the question of whether the Union had a right to that information under another part of the Agreement and the question of whether it could obtain access to the information in an unreasonable workload grievance under the standard form of arbitration were not before Arbitrator Snow for resolution in those proceedings and he consequently expressed no opinion on them

In addition to assigned teaching contact hours attributed preparation hours calculated in accordance with the formula contained in Article 1101 D 1 and attributed evaluation and feedback hours calculated in accordance with

Article 1101 E 1 the hypothetical SWFs prepared by Mr

Wiechula each include 5 complementary hours Mr Wiechula derived five of those hours from the minimum allowance of five

complementary hours attributed by Article 1101 F on the basis

of three hours for routine outofclass assistance to

individual students and two hours for normal administrative

tasks which Mr Wiechula suggested would include dealing

15 with telephone calls voicemail messages email messages and other memos He assigned the remaining onehalf hour to parallel the amount of time that fulltime teachers are allotted for attending departmental meetings He noted that even fulltime teachers who are scheduled to teach at a time which conflicts with those meetings are given that halfhour allotmentfor the purpose of ascertaining the essential information disclosed at the meetings Mr Wiechulas assumption that sessional teaching loads include attendance at such meetings was based upon conversations he had with sessionals and upon his personal experience of having attended meetings at which sessionals were present However he did not know whether they were required by the Employer to attend those meetings or merely did so on their own initiative

Moreover he did not speak with any of the sessionals with respect to whom he prepared theoretical SWFs regarding their attendance at meetings or regarding any other matters pertaining to their teaching loads

Mr Wiechula prepared hypothetical SWFs for five of the fourteen sessionals employed by the College in its

Information Technology Department during the 19992000 academic year He selected those five because they had the highest number of weekly teaching contact hours ranging from sixteen to twenty hours per week He chose not to prepare hypothetical SWIFs for the other nine sessionals in that

Department whose lower number of weekly contact hours did not lead him to believe that they had been assigned excessive

16 workloads The total weekly hours which he calculated for those five sessionals were 5803 for Ahmad Bashir 5845 for

Yuri Felshin 486 hours for Henry Kong NG 454 for Abid

Rana and 5415 for Karl Timmerman All of those totals are for the Winter Semester with the exception of the last one which pertains to the Fall Semester

Mr Wiechula prepared twelve hypothetical SWFs for

sessionals employed in the CollegesTechnology Department

those during the 19992000 academic year The calculations on hypothetical SWFs yield the followin9 total weekly hours

4996 from September to December of 1999 for Kathryn Allen

5130 5011 from January to April of 2000 for Nabil Ayoub

from September to December of 1999 and 44812from January

to April of 2000 for John Hamilton 4909 from January to

April of 2000 for Mohammed Moughal 52972 from January to

April of 2000 for Igor Poliakov 5088 from September to

December of 1999 and 4744 from January to April of 2000

of for Lynne Thompson 5620 from September to December 1999

and 50133 from January to April of 2000 for Fiona Woodward

and 5477 from September to December of 1999 and 45035

from January to April of 2000 for Trisha Yeo

The Union also relied upon two hypothetical SWFs

which Mr Wiechula prepared for sessionals employed in the

Colleges Fashion Technology and Design Department His

calculations on those hypothetical SWFs yielded the following

total weekly hours 47425 for Cynthia GivensSanford and

52971 for Milan Shahani for September to December of 1999

17 The evidence adduced by the College indicates that sessionals are hired to teach assigned courses to provide academic advisement to their students regarding those courses and to evaluate their students progress and achievement in those courses They teach preexisting courses using preestablished course outlines and preselected textbooks

They also have access to preexisting handouts and tests

They are expected to give students some means of contacting them outside of class such as email or voicemail They are also expected to check their mailboxes at the College on a regular basis If sessionals need assistance or support they liaise with a Chair a coordinator or an experienced fulltime teacher Although they are not required to attend promotion meetings they are required to submit grades and assessment data in a timely manner for use at those meetings

They are not required or expected to be involved in the design revision or updating of courses in providing guidance to instructors relative to the instructors teaching assignments participating in the work of curriculum and other consultative Committees or otherwise providing academic leadership nor in contributing to other areas ancillary to the role of a teacher such as student recruitment and selection timetabling facility design professional development student employment and control of supplies and equipment They do not select or review course textbooks nor are they involved in staff development or promotion activities for College programs Although they are welcome to attend

18 departmental or divisional meetings they are not required to do so

Sessionals are generally interviewed and hired by a departmental Chair such as Hilde Zimmer James Waller and

Fran Dungey who in addition to Ms Roy were the witnesses called by the College in this case Consideration is given not only to their academic background but also to their familiarity with the course content Prior teaching experience is also taken into account as is related experience It is not unusual for a sessional teacher to have previous experience teaching similar courses at one or more of the other community colleges in the Toronto area

The College remunerates sessionals on the basis of the number of teaching contact hours which they are assigned

They are paid an hourly rate ranging from 4148 at step level 3 to 7500 at step level 19 for PostSecondary courses and ranging from 3733 to 6750 for Non

PostSecondary courses depending upon their qualifications and experience Those rates are derived from the collective agreementssalary schedule for fulltime professors counsellors and librarians The hourly rates are calculated by dividing the salaries on that schedule by 52 and then further dividing the quotient by 18 for postsecondary and by

20 for non postsecondary A sessional whose assignment extends beyond ninety days is also paid a four percent allowance in lieu of benefits Sessionals are also entitled to public holidays with pay after three months service

19 provided they work the day immediately prior to the holiday

and the first regularly scheduled working day following the holiday As indicated above the College has a policy

limiting the maximum number of weekly teaching contact hours which can be assigned to a sessional to 18 for postsecondary programs and 20 for non postsecondary programs However when that maximum is exceeded as occasionally occurs the

sessional is paid the same hourly rate for the extra hours and

does not receive any overtime or premium payment

Summary of Union CounselsArgument in Chief

Although the Union was initially seeking an award of

damages at the commencement of final argument Ms Mitchell

indicated that the Union was narrowing the scope of the

remedial relief being sought so as to confine it to the

following remedies

1 a declaration that the College has assigned unreasonable

teaching workloads to sessionals in a manner that is

inconsistent with the collective agreement and in violation of

Articles 602 and 1105

2 an order that the College revoke or amend its policy that

sessionals can bescheduled to a maximum of 18 teaching

contact hours for postsecondary and 20 teaching contact hours

for non postsecondary without regard to other factors

relevant to a teachers workload

3 an order that the College take other factors relevant to

teaching into account including preparation time out of

class assistance to students complementary functions

20 administrative functions and evaluation time

4 an order that the College produce SWFs for sessionals or alternatively provide the Union with sufficient information which is consistent comprehensive and reliable so that the

for sessionals Union can produce its own SWFs

Although the only provisions of the collective

602 and agreement alleged to have been violated are Article

1105 Union counsel asked the Board to consider the entirety

have of the Agreement in deciding whether those two provisions been violated in the circumstances of this case The Unions

of theory of the case is that the application the Colleges policy of using maximum teaching contact hours leads to unreasonable workloads for sessionals and that the Colleges plucking out of that maximum has lead to prima facie violations of the Agreement Although the Union is not

suggesting that exceeding the maximum hours permitted under the SWF system inevitably leads to an unreasonable workload

for sessionals it wishes to use SWF data as an objective measure which will be the starting point of its own

investigation into the workloads being assigned to sessionals

in order to monitor and enforce the Agreement and protect its

bargaining unit from erosion

After reviewing the evidence adduced by the Union

which Ms Mitchell contended that it raised a prima facie case

evidence adduced was not rebutted by the subjective opinion by

the College She also highlighted the difficulties which the

Union would encounter in attempting to obtain direct evidence

21 from sessionals She submitted that in defining reasonableness the Board should be guided by the SWF system

She also suggested dictionary definitions the 48 hour weekly maximum with overtime payable after 44 hours under the

Employment Standards Act and comparison with the fulltime faculty member being replaced by the sessional as other options

Union counsel also referred to a number of cases during the course of her submissions including Cambrian

College and OPSEU Local 655 unreported award dated November

16 1987 Devlin Fanshawe College and OPSEU Christine

Begert grievances unreported award dated July 22 1988

Kates Cambrian College and OPSEU Union Grievance 87X97 unreported award dated July 5 1988 Palmer Fanshawe College and OPSEU qrievance re sessional teaching load unreported award dated November 20 1989 PC Picher Algonquin College and OPSEU grievance 88A791 Debbie Teskey unreported award dated November 24 1989 PC Picher and Niagara College and

OPSEU Union Grievance 88B619 unreported award dated June

5 1991 Swan

Summary of Employer Counsels Response

In his submissions on behalf of the College Mr

Hamilton contended that the Union is asking the Board to fundamentally reconstruct the relationship between the College and the Union by amending and acting outside of the collective agreement and awarding what the Union should be seeking though negotiations He argued that the quia timet relief

22 requested by the Union is not warranted and that the circumstances of the instant case do not fall within the

has parameters of the situations in which quia timer relief been granted as described in Re Amalgamated Clothing Workers of America and Polax Tailoring Ltd 1972 24 LAC 201

Arthurs Re School District No 75 Mission and Mission

Teachers Union 1997 61 LAC 4th 8 Larson Re Haida

Motor Inn and BCGEU 95649 1995 51 LAC 4th 351

Laing and Re Royal Crest Life Care Group Inc and CUPE

Loc 1712 1993 38 LAC 4th 250 Carrier

College counsel argued that the Union is estopped

from challenging the Colleges longstanding practice of

week in assigning sessionals up to 18 teaching hours per

postsecondary programs and up to 20 teachin9 hours per week

how in non postsecondary programs That practice indicates

the parties have interpreted Article 1105 and has solidified

to such an extent that it can only be chaned is through

collective bargaining Moreover the manner in which the

arbitral caselaw has permitted community colleges to use

sessionals has become part of the labour relations climate

as a result of the applicable arbitral caselaw which includes

Re Fanshawe College of Applied Arts and Technology and Ontario

Public Service Employees Union Union Grievance No 83249

unreported award dated July 12 1984 HD Brown Cambrian

College and OPSEU Local 655 supra Cambrian College and

OPSEU Union Grievance 87X97 supra Fanshawe College and

OPSEU Christine Begert qrievances supra Fanshawe College

23 and OPSEU grievance re sessional teaching load supra

Algonquin College and OPSEU grievance 88A791 Debbie

Teskey supra and Niaqara College and OPSEU Union Grievance

88B619 supra

Counsel for the College further argued that the SWF system does not apply to sessionals and should not be considered in determining the reasonableness of their teaching loads as it does not give adequate recognition to their qualifications experience and background and fails to make allowance for the Colleges surge needs The hypothetical

SWFs prepared by Mr Wiechula are not an accurate measure of the teaching loads in issue in these proceedings The Board should rely upon the evidence given by the Colleges witnesses which establishes the reasonableness of the sessionals teaching loads The reasonableness of those teaching loads is also demonstrated by the fact that they were accepted by the sessionals

Summary of Union CounselsReply Argument

Collective bargaining is one of the means through which the Union may be able obtain SWFs for sessionals but they can also be Obtained by means of the College voluntarily agreeing to provide them or by means of an arbitration board ordering the College to provide them in order to provide a meaningful remedy to the Union Although the Union could have grieved the Colleges policy regarding sessional workloads when it was formulated in 1986 it was also open to the Union to grieve it at a later date when the application of the

24 the policy gave rise to violations of collective agreement

to an end when the If any estoppel was created it came Union

after unsuccesfully attempting to obtain workload data for

sessionals through the Workload Monitoring Group filed a

grievance under the workload resolution arbitration process

and subsequently filed the instant grievance thereby putting

the Employer on notice that the Union was no longer accepting

that practice The sessionals acceptance of their workloads

the should not be given any weight in determining

reasonableness of their workloads Moreover unanticipated

do entitle the absences or other unexpected changes not

College to assign sessionals unreasonable teaching loads

Preparing SWFs for sessionals would not be an onerous task

well for the College as all of the necessary information is

within its knowledge Obtaining workload information

concerning sessionals through the Local UnionCollege

Committee is not a realistic option as the Colleges refusal

to meet under Article 702 has itself given rise to other

grievances

Decision

Counsel for the College relied upon Mr Lords memo

dated October 20 1986 to Ms Layton in support of his

contention that Local 556 accepted the Colleges position that

not exceeding 18 teaching hours per week in post secondary

hours week in programs and not exceeding 20 teaching per

reasonable nonpost secondary programs would constitute

teaching loads for sessionals The second sentence of the

25 second paragraph of that memo Sessionals teaching post secondary programs should not exceed 18 teaching hourweek and in nonpost secondary should not exceed 20 teaching hoursweek provides some support for that contention when read in isolation However as noted by counsel for the

Union Mr Lord also asserted in that memo that Reasonable workloads should comply with the other limits contained in

Article 4 of the contract including the weekly total workload of 44 hours and that the number of subjectscourses or sections should also be reasonable

Mr Lords memo also indicated that for the grievance to be resolved a further memo specifying the above should be issued immediately However that did not occur and as noted earlier in this Award although the memo suggested that the Union was not satisfied with the Colleges response the grievance was not taken to arbitration nor was any other grievance filed or taken to arbitration prior to the

199798 academic year Thus the Colleges practice of assigning sessionals up to 18 teaching hours per week in postsecondary programs and up to 20 teaching hours per week in non postsecondary programs continued without further challenge by the Union for more than a decade The Unions inaction during that lengthy period of time gives rise to an inference that the Union acquiesced in the Colleges practice and estops the Union from obtaining any relief for the period preceding the end of the 199798 academic year during which the Union filed the grievance which gave rise to Arbitrator

26 to Snows aforementioned award and also filed the grievance which this Award pertains thereby putting the College on

notice that its practice regarding sessional workloads would

no longer be acquiesced in by the Union

Since the evidence adduced in the instant case

pertains to a period beyond the time at which the estoppel

whether it came to an end we shall proceed to determine

establishes on the balance of probabilities that unreasonable

teaching loads were assigned to sessionals during the

19992000 academic year

The arbitraljurisprudence under what is now Article

1105 developed primarily in the 1980s and early 1990s when

Fanshawe that provision was numbered as Article 405 In Re

College of Applied Arts and Technology and Ontario Public

an Service Employees Union Union Grievance No 83249 supra

arbitration board chaired by Arbitrator Brown found a

nineweek assignment to teach 27 hours per week in a life

it skills course for adults not to be unreasonable even though

that time was six hours per week over the maximum allowed at

for teachers in the bargaining unit In reaching that

fact conclusion the award gave considerable weight to the

that the sessional had agreed to teach those extra fiftyfour

was no of bad faith hours and to the fact that there evidence

those of the on the part of the College However two aspects

approach adopted in that case have met with disfavour in

Local subsequent cases In Cambrian College and OPSEU 655

as in supra at page 15 Arbitrator Devlin wrote follows

27 rejecting them

we are unable to conclude that the College assigned an unreasonable teaching load to Dean Gibson in violation of Article 405 of the collective agreement In reaching this conclusion however we have not considered the fact that the College freely disclosed the teaching contact hours and total workload hours assigned to Mr Gibson We agree with Ms Farson that a violation of Article 405 is not dependent upon a finding of bad faith on the part of the College As a result and while any attempt to conceal ormislead the Union concerning the teaching contact or total workload hours of a sessional employee might suggest an attempt to avoid the application of Article 405 the absence of such activity is not necessarily indicative of compliance We also agree with Ms Farson that whether or not Mr Gibson was content with the workload is largely irrelevant Article 405 was designed to preclude the College from assigning excessive or unreasonable teaching loads to nonbargaining unit employees with a potentially negative impact on members of the bargaining unit As a consequence the reasonableness of the teaching load cannot in our view be judged by whether the sessional employee is satisfied with the hours assigned

That passage was quoted with approval and applied by

Arbitrator Swan in his majority award in Niagara College and

OPSEU Union Grievance 88B619 supra

In Cambrian College and OPSEU Local 655 supra at pages 1213 Arbitrator Devlin also made the following observations in finding the probationary teacher restrictions

contained in what was then Article 401 10 d which is now Article 1101 J 4 of the Agreement to be inapplicable to sessional employees

In contrast to those provisions of Article 4 which limit the teaching contact hours and total workload hours which may be assigned to members of the bargaining unit Article 405 contains no quantitative restriction on the hours which may be assigned to those excluded from the unit In these circumstances we do not believe that it is appropriate to simply import the restrictions applicable to probationary teachers where as here the sessional employee has had no prior

28 to teaching experience had the partiesintended of place similar restrictions on these groups in terms teaching contact hours or total workload hours they would have done so Article 405 however provides the of that no college shall circumvent provisions Article 4 by arranging for unreasonable teaching loads the on the part of persons excluded from bargaining unit By referring to unreasonable teaching loads the broader it is our view that the parties intended basis for consideration

At the time of that award the maximum weekly workload permitted by the Agreement for members of the

the bargaining unit was fifty workload hours comprised of fortyfour hour weekly workload maximum plus six total workload overtime hours Although the Arbitration Board found

or workloads it unnecessary to decide whether not total

would beyond those permitted by the collective agreement invariably constitute an unreasonable teaching load they did

that fact that the total express the view at page 14 the

not workload hours assigned to the sessional in question do exceed 50 as permitted for the academic year beginning

not an September 1 1986 suggests that the teaching load was unreasonable one

In Fanshawe College and OPSEU Christine Begert

Arbitrator Kates grievances an arbitration board chaired by

found a sessional to have been assigned an unreasonable

week teaching load on the basis that the 375 hours per during

which she was required to provide instructional and teaching

the services was approximately ten hours per week more than

a average of 275 hours per week assigned to comparable

the bargaining unit employee To remedy that violation

the sessional an amount with College was directed to pay

29 interest at the appropriate overtime rate for the excess hours

10 worked beyond 275 hours per week during the period of her sessional employment

In dismissing a Union grievance filed under what is now Article 1105 of the Agreement then Article 405 the majority of an arbitration chaired by Arbitrator Palmer wrote

in part as follows in Cambrian College and OPSEU Union

Grievance 87X97 supra at page 8 in which they accepted the Colleges argument that what is in issue under that provision is not a sessionals workload but the sessionals

teaching load which is only one component of workload

the Board is of the view that this grievance should be dismissed

In coming to this conclusion in a general way the Board accepts the thrust of the College argument Thus it seems to us that what is in issue is the teaching functions undertaken by the excluded teachers rather than their total work with the College Normally fulltime teachers would have considerably more administrative duties attached to their appointment than would a parttime teacher Accordingly to draw a parallel between the two in terms of the results of SWFs would be unreasonable

The majority also adopted at page 8 of the award an approach

similar to that applied by Arbitrator Devlin in the aforementioned earlier case involving that same College in taking into account the overtime hours which by that time were a maximum of three hours rather than six hours

contemplated by the workload article

We also agree with the position taken by the College that reasonability requires an analysis of the various individual cases Here the argument that fortyfour hours per week is not a maximum and that the collective agreement contemplates higher loads finds favour with us Obviously if fulltime teachers were

30 teaching fortyseven hours as determined by Article 4 such would not constitute a breach of the collective agreement To use the Union argument if it is reasonable for a fulltime teacher it is difficult to see how it would be unreasonable for a parttime teacher

The relatively wide degree of latitude which the majority of that Board were prepared to give the College under that provision is also demonstrated by their conclusions regarding the two sessionals whose hours were in excess of fortyseven hours per week They found it to be not unreasonable for the College to assign a sessional a rather heavier load 4935 hours per week during the first patof the semester followed by a lighter load 3288 hours per week during the second half of that semester Their conclusion regarding the other sessional whose audited SWF yielded 4878 hours per week was

With respect to the remaining teacher above fortyseven hours the Board is not convinced that such gives rise to a breach such as is suggested by the Union in the present case Obviously certain difficulties will always be encountered in prognosticating the enrollment which will finally occur in a particular class Making one such error does not seem to be offensive to the clause in issue

A number of the general principles set forth in the preceding cases were consolidated and developed in the

following passage from Arbitrator PC Pichers majority award

in Fanshawe College and OPSEU grievance re sessional teaching

load supra at pages 2526

The Board is readily satisfied that the determination of whether a sessional instructor is assigned an unreasonable teaching load in contravention of article 405 of the collective agreement cannot be determined through an automatic application of the workload maximums applicable to fulltime teachers in

31 the bargaining unit The focus of article 405 is unreasonable teaching load not unreasonable total workload Under article 4 of the agreement a distinction is drawn between an instructors teaching load which is referred to in part as teaching contact hours and would also involve time spent for preparation and feedback and total workload which includes teaching contact hours attributed hours for preparation and evaluation and then further includes attributed hours for complementary functions and administrative duties which may not be done at all by sessional teachers The hours attributed to fulltime teachers for preparation time student evaluations administrative duties and complementary functions are established by various formulae in the collective agreement for members of the bargaining unit but may not be an accurate reflection of the actual work performed by sessional teachers who are not in the bargainin unit

If the parties intended the same maximums set for fulltime teachers in the bargaining unit to apply automatically to the loads assigned to sessional teachers they could have readily said so in the collective agreement By employing the more general standard of reasonableness instead of fixed maximums however the Board concludes that the parties intended the College to have a measure of flexibility with its appointment of sessional teachers We conclude that the parties intended that the definition of a reasonable teaching load would vary with the circumstances of each appointment Without in any way attempting to be exhaustive we find that factors relevant to the assessment of a reasonable teaching load for sessional instructors would include 1 the number of contact teaching hours 2 the amount of preparation required 3 the amount and kind of evaluation and feedback involved 4 the extent of administrative duties if any 5 whether the teaching loads exceed the maximums established for fulltime teachers including allowances for permissible overtime 6 the reason for the sessional appointment whether it was an unforeseen emergency whether there was a practical alternative whether the person involved was particularly suited to the assignment 7 the nature of the appointment eg whether it could readily be covered by fulltime instructors whether it was long term or short term etc and 8 the availability of fulltime instructors to cover the load instead

The breadth of the flexibility which that approach provides to the colleges is illustrated by Algonquin College

32 and OPSEU rievance 88A791 Debbie Teskeysupra in which the majority found an elevenweek sessional teaching load involving 28 teaching contact hours per week and yielding a total workload of approximately 635 hours per week not to be unreasonable due to the emergency nature of the situation in which the Collegesonly other option would have been to cancel the clinical courses and thereby jeopardize the students individual nursing programs by bringing them below the minimum hours of clinical experience required by the

Ministry

The arbitral jurisprudence which has developed under

Article 1105 has also found the colleges to be under no obligation to provide the Union with SWFs for sessionals or for partialload or parttime teachers See for example

Niagara College and OPSEU Union Grievance 88B619 supra at pages 1012

In order to establish a breach of Article 1105 the

Union must establish on the balance of probabilities that the College has circumvented the provisions of Article 11 by arranging for unreasonable teaching loads on the part of

the persons excluded from the bargaining unit Although grievance also alleges that the College has breached Article

602 of the Agreement a finding that the College has not

exercised its management functions in a manner consistent with

the provisions of this Agreement is in the circumstances of

have this case dependent upon a finding that sessionals been

assigned unreasonable teaching loads

33 Having carefully considered the arbitral jurisprudence summarized above and the able submissions of counsel we respectfully agree that all of the factors listed in Arbitrator PC Pichers majority award in Fanshawe College and OPSEU grievance re sessional teachinq load supra are germane to the determination of whether the College has circumvented the provisions of Article 11 by arranging for unreasonable teaching loads on the part sessionals Thus the

Colleges policy of precluding departments from assigning sessionals more than 18 teaching contact hours per week in postsecondary programs or more than 20 teaching contact hours per week in non postsecondary prorams will not necessarily safeguard it from violating Article 1105 as that policy fails to take into account a number of relevant factors In assessing the reasonableness of sessional teaching loads consideration must not only be given to time spent in the classroom but also to time spent outside of class hours performing tasks such as preparation for teaching and preparing and marking tests and assignments Where time required for a sessional to evaluate student performance varies with the number of students such as where the method of evaluation involves grading essays or essaytype tests or projects class size must also be taken into account in determinin the reasonableness of a sessionals teaching load

Consideration must also be iven to the time spent outside the

classroom performing related duties such as speakin with

students to answer courserelated questions and reading and

34 responding to emails and memos

With the exception of the evidence given by Ms Watt to which we are not prepared to give any weight for the reasons set forth above the evidence adduced by the Union in support of its case consisted almost entirely of the hypothetical SWFs prepared by Mr Wiechula While we have no doubt that Mr Wiechula carefully undertook the laborious task of preparing those hypothetical SWFs we have found them to be of limited value in determining whether the College has contravened Article 1105 as they have a number of inherent deficiencies With the exception of teaching contact hours the figures contained in those hypothetical SWFs are at best rough estimates of the time devoted to preparation evaluation and administration as they are attributed hours which have not been proven to accurately reflect the actual number of hours which the sessionals to whom they pertain devoted to those tasks We are satisfied on the totality of the evidence that those figures tend to significantly

overstate preparation time for sessionals as the courses which they teach are usually basic courses involving knowledge

and skills with which they are quite familiar as a result of

their education and experience Moreover those figures do

not make any allowance for teaching experience which

sessionals have acquired through teaching similar courses at

other community colleges We are also satisfied on the

totality of the evidence that the hypothetical SWFs

substantially overstate the amount of time which sessionals

35 likely devote to complementary functions Fulltime faculty are allotted a minimum of five hours per week for the performance of those related duties pursuant to Article

1101 F Under that provision three hours are attributed for routine outofclass assistance to individual students and the remaining two hours are attributed for normal administrative tasks The evidence adduced by the College establishes that sessionals generally receive fewer

Collegerelated emails and memos than fulltime faculty and do not have as many other administrative tasks to perform

There is no evidence before the Board from which it may reasonably be concluded that the sessionals in question actually devoted three hours per week to outofclass assistance to individual students Moreover since sessionals are not required to attend departmental meetings and there is no evidence that any of the hypothetically SWFed sessionals in fact did so the onehalf hour allocated on the hypothetical SWFs for that purpose is not justified

In view of our foregoing conclusions regarding the tendency of the hypothetical SWFs to overestimate preparation time for sessionas and the time which they devote to complementary functions and in view of the aforementioned wellestablished principle that the overtime hours which are permissible for fulltime teachers under what is now Article

1101 J 1 should also be taken into account in determining the reasonableness of sessional teaching loads we have concluded that the hypothetical SWFs establish a prima facie

36 in of Yuri case of unreasonableness only respect Ahmad Bashir

Felshin Karl Timmerman Fiona Woodward from September to

December of 1999 and Trisha Yeo from September to December

of 1999 Consequently we shall now proceed to determine whether the prima facie case established by the Union with

rebutted the respect to those five sessionals has been by

College

Messrs Bashir Felshin and Timmerman were

sessionals hired to teach in the Colleges Information

their Technology Department Evidence concerning teaching

assignments and the circumstances which led to them being

given those assignments was given by James Waller After

graduating from the University of Waterloo in systems design

engineering in May of 1998 Mr Waller worked at the College

as a sessional from September to December of that year He

became a fulltime professor at the College in January of

1999 was appointed as coordinator for the Information

Technology Department in July of 1999 and became the Chair of

that Department in August of 2000

The Information Technology Department doubled its

enrollment in the late 1990s in order to qualify for funding

which became available under the Ontario GovernmentsAccess

to Opportunities ATOP program Several additional fulltime

faculty members were hired to accommodate the extra students

as were a number of sessionals

Mr Timmerman worked as a sessional in the Fall of

contact 1999 He was assigned a total of 17 teachin hours

37 consisting of five sections of COMP 1078 Introduction to

Database Concepts and six sections of COMP 2067 Application

Development using Visual Basic It was initially contemplated that he would have 16 teaching contact hours but he agreed to accept an additional hour after another newlyhired sessional expressed discomfort with the theoretical material to be covered in COMP 1078 and asked if it could be reassigned to someone else

The evidence establishes that COMP 1078 Introduction to Database Concepts is a basic introductory first year course requiring little preparation by anyone with an information technology background through which the basic training prerequisites have been acquired The course is presented by using one hour for presentations on conceptual theory followed by a twohour hands on lab session during which exercises are completed by students after demonstrations by the professor Testing is done through a written multiple choice format Lab notes are available for use by teachers of that course

COMP 2067 is a more advanced course which examines the features of the Visual Basic programming language and the development of information databases using that language The course includes demonstrations and lectures along with handson learnbydoing activities at a computer workstation

The evidence adduced by the College establishes that it is unlikely that Mr Timmerman actually devoted as much

38 time to preparation and evaluation as suggested by his hypothetical SWF The same is true of the time allocated for

complementary functions

Mr Timmerman was dismissed near the end of the Fall

Semester for reasons which are not germane to the instant

case His dismissal necessitated the reassignment of the two

courses totalling between 12 and 15 contact hours per week

which he was to have taught during Winter Semester Around

that same time another sessional Danny Roy indicated that

he would not be available to teach during the Winter Semester

necessitating the reassignment of an additional 15 to 17

contact hours Further scheduling pressure was created

just before the Christmas break when Andrew Kemeni who had

taught a partial load during the Fall semester announced that

he would be unable to return in the next semester and when

the Department received approval to add two additional

sections comprised of a mixture of new first year students

and existing first year students repeating courses in which

they had been unsuccessful during the Fall Semester The

chaotic state of the Department was further exacerbated when a

sessional who had been hired on the Friday before classes were

scheduled to resume notified the College on the following

Monday that he would be unable to honour his commitment

Moreover COMP 2085 had to be rescheduled to be delivered

during the first seven weeks of the Winter Semester in order

to permit the delivery of COMP 2075 ClientServer Data Base

Application Development using Visual Basic to be deferred

39 until the beginning of March when it was hoped that a qualified teacher could be found to deliver it in a sevenweek compressed format instead of the fourteenweek format which had originally been contemplated but which had to be abandoned because of the lack of availability of a qualified teacher

When a suitable candidate had not been found by the beginning of March the College retained the services of Yuri Felshin through a consulting company Mr Felshin was also assigned some of the courses and labs which had to be covered during a fulltime faculty membersmaternity leave The College resorted to the unusual and costly step of retaining teaching services through a consulting company because students had already been inconvenienced by the deferred commencement of

COMP 2075 and having a qualified person available to teach the course at the beginning of March had become critical to the credibility of the program

In addition to six sections of COMP 2075 Mr Felshin was assigned two sections of COMP 1065 Introductory

Programming using Java Although his assigned teaching contact hours totalled only 16 he had a total of 500 students and 1250 student ontact hours per week COMP 2075 is more advanced than a first year course and would require approximately the amount preparation time predicted by the hypothetical SWF Some preparation time would also be required for COMP 1075 which is lecture course However evaluation time for that course would be minimal as it is graded by means of multiple choice questions

40 Ahmad Bashir was also hired to teachin the

Information Technology Department as a sessional during the

Winter Semester of the 19992000 academic year Mr Bashir had a Bachelor of Engineering Degree in Electronic

Engineering from NED University Karachi and a Master of

Science Degree in Computer Engineering from Boston

University He also had over ten years of experience teaching

and computer sciences computer studies electronics at various colleges and universities including Seneca College

where his duties in the School of Computer Studies included teaching courses pertaining to Visual Basic and Microcomputer

Operating System Windows 98 and Windows NT supervising laboratory work and performing related assignments and

Centennial College where his duties in the School of

Engineering and Technology included teaching courses pertaining to Micro Processors and Computer in Electronics

Windows Word and Excel supervising laboratory work and performing related assignments

One of the courses which Mr Bashir was initially assigned to teach was COMP 2068 However shortly before the

Christmas break Mr Bashir expressed some discomfort with the course material Consequently that course was reassigned to a fulltime faculty member who was paid overtime for teachin

it In place of that course Mr Bashir was assigned COMP

1030 Information Systems At the commencement of the winter

semester the teaching contact hours assigned to Mr Bashir

totalled 16 hours per week However early in that semester

41 they were increased to 19 hours per week due to the

aforementioned addition of two more first year sections and

due to the need to revise assignments in order to accommodate

the aforementioned rescheduling of COMP 2085 for delivery

durin the first seven weeks of the winter semester Thus

Mr Bashirs sessional teaching load durin the Winter

Semester of the 19992000 academic year ultimately consisted

of one section of COMP 1030 Information Systems one section

of COMP 1076 Computer Architecture Fundamentals three

sections of COMP 1078 Introduction to Database Concepts and

four sections of COMP 1079 Desktop Database Prorammin for a total of 19 teachin contact hours per week He had a total of 438 students and 924 student contact hours per week

The evidence establishes that like COMP 1078

COMP 1079 Desktop Database Prorammin is a basic introductory first year course requirin little preparation by anyone with an information technolo95 backround Extensive resource material is available for use by teachers of that course includin sessionals

Waller Mr acknowledged durin the course of his testimony that class size and method of evaluation are factors to be considered in determining the reasonableness of sessional teachin loads He also testified that those

are faCtors considered in a nonnumerical way in assinin teachin loads to sessionals It was also his evidence that in determinin how much preparation time will be needed consideration is iven to whether the sessional has taught

42 something similar before and to whether theyare being assigned to teach multiple sections of the same course

It is clear from the totality of the evidence that

and Timmerman the courses assigned to Messrs Bashir Felshin could not readily have been covered by fulltime instructors

to cover as there were no fulltime instructors available their courseloads Moreover the aforementioned highly unusual events which occurred in the Information Technology

an Department during the 19992000 academic year created unavoidably chaotic situation which necessitated the

assignment of heavier teaching loads to those three sessionals

than would otherwise have been justifiable

Having regard to all of the evidence and to the

re factors listed in Fanshawe College and OPSEU grievance

has sessional teaching load supra we have concluded that it

that the not been established on the balance of probabilities

College arranged for unreasonable teaching loads on the part

we of Messrs Bashir Felshin and Timmerman However find

it appropriate to note for the future uidance of the parties

that in the absence of the highly unusual circumstances which

existed in the Department during the aforementioned time

to frame we might well have found the teaching loads assigned

those three sessionals to be unreasonable

As indicated above the hypothetical SWFs prepared

facie case of by Mr Wiechula also establish a prima

unreasonableness in respect of the teaching loads assigned to

Fiona Woodward and Trisha Yeo during the period from September

43 to December of 1999 The Colleges evidence concerning their

teaching loads was given by Hilde Zimmer who has held a large

variety of positions during the thirty years that she has been

employed by the College and who was the Chair who made the

impugned assignments to those two sessionals

Ms Zimmer hires sessionats primarily to cover

additional sections of courses necessitated by unexpected

enrolment or by unexpected variations in the ratio between

regular and remedial classes and to cover unexpected absences

of fulltime teachers New students are assessed for English

and mathematical skill levels and are placed in either the

regular stream or the remedial stream in English andor

mathematics on the basis of that assessment The College

generally schedules regular sections and remedial sections on

a ratio of 21 but the actual split is not known until after

the students have been assessed If it becomes necessary to

schedule additional regular or remedial sections of a

particular course the additional sections have to be

stacked ie scheduled to occur at the same time as the

other sections of that course Consequently it is not

possible to merely add them to the courseload of a teacher who

is already teaching one of the sections

When hiring sessionals Ms Zimmer looks for people

who are familiar with the material to be taught and who are able to go directly into the classroom In many cases the

people whom she hires have taught very similar courses in the

Colleges continuing education program at another college or

44 at a university She meets with each sessional to 9o over the course outline and to ensure that they are comfortable with the course content

Durin9 the Fall Semester from September to December of 1999 Ms Woodward taught two sections of ENGL 1003 also

two sections known as COMM 1003 Skills for College English of COMM 1007 College English and two sections of COMM 1034

Professional Communications I She had a BA in English and Psychology an MA in English Literature and Language and a more recent MA in English Literature the latter havin9 been obtained with a view to 9ainin9 admission to a

PhD program Her previous teachin9 experience included teachin9 English as a Second Language at St Clair College

Humber College and George Brown College as well as teachin9

English Literature and Language at the secondary school level in Bermuda at a junior college in Michigan and as a

University teachin9 assistant She also had editorial experience in the publishin9 industry

Durin9 the period from September to December of 1999

Ms Yeo taught one section of ENGL 1003 two sections of COMM

1007 and one section of COMM 3002 She had a BA and MA

in English and had been workin9 on a PhD in English for six

the years which she anticipated completin9 followin9 year

She had five years of teachin9 experience as a tutorial leader

in the Department of English at York University where she had

recently won the Departments Award for Excellence in

Teachin9

45 ENGL 1003 Skills for College English is a noncredit preparatory course which focuses on written and oral communication It is a very basic course which would require little preparation by sessionals having the educational qualifications and previous teaching experience possessed by Ms Woodward and Ms Yeo Students are graded on a pass or fail basis with their evaluation being based upon written assignments oral presentations classroom exercises quizzes and tests

COMM 1007 College English is the required foundation course in communications and is a prerequisite for all additional or advanced courses in writing and speaking

The course focuses upon learning effective strategies to inform and persuade It combines several methods of instruction including lectures discussions group work and oral expression Students are graded on the basis of a paper prepared during a twohour class at the end of the semester

We are satisfied on the totality of the evidence that it would not be an onerous course for sessionals having the educational qualifications and previous teaching experience possessed by

Ms Woodward and Ms Yeo Consequently we find that their hypothetical SWFs overstate by at least 50 the amount of time which they likely devoted to preparation in respect of that course

The same is true of the portion of Ms Woodwards hypothetical SWF pertaining to preparation for COMM 1034

Professional Communications I That course teaches students

46 to choose and apply appropriate forms and rhetorical strategies to professional settings It also combines the aforementioned methods of instruction However we accept as reasonably predictive the portion of her hypothetical SWF pertaining to that coursesevaluation which is based upon written assignments 60 oral presentations 20 and quizzes exercises and participation 20

We also accept as reasonably predictive the portion of Ms Yeos hypothetical SWF pertaining to COMM 3002

In the absence of any direct evidence from Ms

Woodward or Ms Yeo or any of the other sessionals employed by the College it is not possible to precisely determine how many hours per week they actually worked in fulfilling the duties of their sessional appointments However having regard to all of the oral and documentary evidence adduced concerning the nature of the courses they were assigned to teach their educational qualifications and their previous teaching experience we find that the College has rebutted the prima facie case of unreasonableness established by the hypothetical SWFs prepared by Mr Wiechula in respect of the

teaching loads assigned to Ms Yeo and Ms Woodward during the period from September to December of 1999

Although we have concluded that the grievance must be

dismissed because the Union has failed to establish on the

balance of probabilities that the College has circumvented the

provisions of Article 11 by arranging for unreasonable

teaching loads on the part of sessionals in violation of

47 Article 1105 or of Article 602 for the future guidance of the parties we find it appropriate to reiterate our aforementioned conclusion that the Collegespolicy of precluding departments from assigning sessionals more than 18 teaching contact hours per week in postsecondary programs or more than 20 teaching contact hours per week in non postsecondary programs will not necessarily safeguard it from violating Article 1105 as that policy fails to take into account a number of relevant factors In assessing the reasonableness of sessional teaching loads consideration must not only be given to time spent in the classroom but also to time spent outside of class hours performing tasks such as preparation for teaching and preparing and marking tests and assignments Where time required for a sessional to evaluate student performance varies with the number of students such as where the method of evaluation involves grading essays or essaytype tests or projects class size must also be taken into account in determining the reasonableness of a sessionals teaching load Consideration must also be given to the time spent outside the classroom performing related duties such as seaking with students to answer courserelated questions and reading and responding to emails and memos

As indicated in Fanshawe College and OPSEU grievance re sessional teaching load supra other factors which may properly be taken into consideration include whether the

teaching load assigned to a sessional exceeds the maximum

established for fulltime teachers including allowances for

48 permissible overtime the reason for the sessional appointment whether there is a practical alternative whether the person involved is particularly suited to the assignment whether it is lon9 term or short term and whether it could be covered by fulltime instructors

Although the Areement does not require the College

well be to prepare SWFs reardin sessionals it might advised to do so with appropriate adjustments to reflect the lesser amount of time which sessionals are expected to devote to complementary functions as they would serve to alert the

College to situations in which teachin loads assigned to sessionals might be violative of Article 1105 Moreover voluntarily providin such SWFs to the Union would likely improve the relationship between the parties by enenderin a reater level of cooperation and trust and by obviatin9 the

Unions need to resort to protracted arbitration proceedings at substantial cost to both parties in order to obtain through production orders relevant information concernin the

Colleges use of sessionals

In accordance with the areement of the parties we remain seized of 9rievance 0030 OPSEU File No 01C039 If the parties are unable to resolve that rievance on the basis of this award it will be scheduled for hearin at the request of either party

49 DATED at Burlington Ontario this 21st day of December 2002

Robert D Howe Chair

I concur

Rene St Onge College Nominee

50 DIS SENT

With all due respect this member must dissent at least in part from the award ofthe majority

The first item ofdissension is with regards to the exclusion of evidence from Ms

Elizabeth Watt Ms Watt settled her own personal grievances with the college The union specifically and in writing withdrew from the terms of the settlement page 2 item 1

she had no executed on the 3rd day of August 1999 Ms Watt specifically acknowledged personal remedy available to her with the regards to the instant case Ms Watt is representative of the atiermath of extensive layoffs ofthe mid 90s This was members from a period which saw a multitude oflong term faculty many colleges terminated followed by a corresponding increase in the use ofnonbargaining unit employees Those rehired on individual contracts ofemployment similar to Ms Watt full time were assigned more courses accommodating more students than their

counterparts Ms Watt in particular taught some ofthe courses she had taught

previously supplemented by two or three additional courses andor extra students When Ms Watt inquired as to the excessive numbers of students in her courses she was informed that they could not be placed with a full time faculty member as it would result in overtime for the faculty involved An examination of Ms Watts SWFspre layoff in general reveal class sizes of35 her sessional courses 4060

Mr Timmerman taught 710 students Mr Ahmad Bashir taught 438 students Mr Abid Rani taught 420 students Mr Yuri Felshin taught 500 students Faculty similarly situated 2300

well over two Communication type courses reveal total student loads to sessionals hundred students The primary evaluation method ofstudents in these courses is written the load of Fiona Woodward f either reports or essays Evaluation of for example teaching involves the adjudication of228 students approximately three timesper semester for individual student achievements of over 30 course outcomes

With the exception of attendance at departmental meetings the college witnesses acknowledged that during the teaching periods sessional teachers had essentially the same professional duties and commitments as their full time counterparts

This member agrees that estoppel ended preceding the evidence adduced in this case but disagrees that the Union acquiesced for the period following Mr Lords memo The

Union was satisfied with the collegesnew policy Exhibit 42 introduced in Feb 1989 that limited the use of sessionals to replacing a fulltime teacher on an approved leave or teaching a new course or program of which the continuation is doubtful Approval for the use of sessional teachers in any other instancewill be by agreement between the college

and the Union

This member concurs with the Chair in the recognition that the college policy permitting the loading of sessionals to 18 teaching contact hours is inadequate In fact all ofthe evidence from the colleges own witnesses acknowledged its inadequacy The three witnesses all testified that in the hiring of sessionals they examined the qualifications and assignments with regards to the following criteria

Previous teaching experience

Preparation and evaluation time ofthe courses assigned Sessional appointees colrfort level with materials to be taught Educationalemployment background and achievements in their discipline Preferences offull time faculty with regards to courses or timetabling Availability of existing course outlines and materials Availability ofothers to assist the sessional

Availability of a full time faculty member to teach the course offerings

All of the colleges witnesses testified that they could not share this information with the union in its pursuit to police their contract The only method the Union currently has at its disposal to ensure these criteria are reviewed objectively and consistently is through the forum ofarbitration I join the majority recommending that the college voluntarily SWF sessional appointments

It is the position ofthis member that the union produced aprimafacie case indicative of a breach of 1105 and the majority errs in accepting the subjective evidence of the college witnesses

With the exception of courses actually taught by the college s own witnesses the assessment of the work performed by sessionals is subjective and assessed by an employer cash strapped by current funding restrictions challenged by time tabling and new course offerings but at the same time in an enviable labour market climate The layoffs have lef a substantial labour pool of well qualified individuals available to the colleges as indicated by the resumes in evidence in the GTA The union established its case on documents created by the employer The course outlines and excessive student numbers are a matter

ofrecord Overloading courses and student numbers affects the full time faculty for

overtime hours and perpetuates the loss offull time and partial load hires The college did not satisfy the onus that sessionals were not used in excess of 1105 The Union grievance although urging this Board to read the collective agreement as a

whole did not seek remedy under Article 2 a fact which has troubled this member in terms of remedy from the begirming The remedy to the abuse ofsessional appointments is not to under Article hire more sessionals but for the employer to satisfy its obligations 2

All ofwhich is respectfully submitted by Union nominee Sherril Murray