Arbitration Award: Part Time Members' Grievance

Webkeeper's note: UWOFA is releasing this unofficial verstion of the arbitrator's decision, dated March 21, 2002, in the grievance lodged by UWOFA against UWO. The issue in question concerned paying members on Part Time appointments  for work done for the University other than "teaching".  Some minor changes in formatting have occurred in preparing the document for the WWW. 

IN THE MATTER OF AN ARBITRATION

B E T W E E N :

THE UNIVERSITY OF WESTERN ONTARIO
(THE UNIVERSITY)

A N D :

THE UNIVERSITY OF WESTERN ONTARIO FACULTY ASSOCIATION
(THE ASSOCIATION)

AND IN THE MATTER OF AN ASSOCIATION GRIEVANCE

ARBITRATOR: HOWARD D. BROWN

APPEARANCES FOR THE UNIVERSITY:

BARRY BROWN, COUNSEL
ALEX G. MERCER, DIRECTOR OF FACULTY RELATIONS

APPEARANCES FOR THE ASSOCIATION:

CATHY LACE, COUNSEL
DAN JORGENSEN, PRESIDENT

HEARINGS IN THIS MATTER WERE HELD AT LONDON ON MAY 3, OCTOBER 25, DECEMBER 4, 2001 AND AT TORONTO ON JANUARY 8, 2002.

AWARD

The parties entered into a collective agreement in effect between July 1, 1998 and June 30, 2002 pursuant to the terms of which a grievance was lodged by the Association on December 18, 2000 on behalf of its affected members in the following terms:
"1. refusing to pay Part-Time Members for administrative duties (Service) which they have performed or will perform, especially service on committees to which Part-Time Members have been elected; and

2. refusing to retract or modify Letters of Appointment for Part-Time Members which purport to require administrative duties (Service) as included in the compensated duties for Limited-Duties teaching appointments."

The Association alleged a violation by the University of the provisions relating to Academic responsibilities, Appointments, Compensation and Benefits and seeks a declaration of a breach of the collective agreement and full compensation for all affected members. The basic issue arising from this grievance is whether under the terms of the collective agreement part-time employees under Limited Term Appointments are entitled to and should be paid for their services while serving on University committees. The Association's position is that part-time faculty members have, as one of their academic responsibilities, the obligation to perform service to the University and are paid only for teaching but should receive compensation when they are members of the various University committees, more particularly referred to below. The University however, has made a clear distinction between the compensation for full-time and part-time faculty members and responds to this claim that the part-time faculty have limited duty appointments only and are not covered by the sections of the agreement concerning workload but are paid on a per course basis to teach without provision for the performance of service at the University unless specifically assigned by a Dean and the duties accepted by the part-time employee. Any voluntarily assumption of activities other than teaching by a part-time member is not paid by the University.

There are a number of articles of the extensive provisions in the collective agreement which have reference to the issue between the parties in this grievance as follows:

p. 20
"1.4 A Limited-Duties Appointment is a fixed-term non-probationary Appointment to the academic staff of the University which involves assigned duties equivalent to those associated with primary responsibility for teaching a university degree credit course.

p. 21
1.4.1 A Part-Time Member is one whose Limited-Duties Appointment(s) involve(s) full responsibility at least equivalent to that associated with teaching a full university degree credit course in any Fiscal Year. A Full-Time Member cannot be a Part-Time Member, even when also holding a Limited-Duties Appointment.

p.32
20. The Chair (Dean) shall provide the successful applicant for a Limited-Duties Appointment with a Letter of Appointment stating the terms, conditions and rank of the Appointment. These terms and conditions shall not conflict with the provisions of this Collective Agreement. When the appointee's Limited-Duties Appointment(s) is (are) at least equivalent to one full university degree credit course, the Dean shall inform the appointee that he or she is a Member of the Bargaining Unit. The Chair (Dean) shall give all successful applicants for Limited-Duties Appointments a copy of this Collective Agreement.

20.1 The Letter of Appointment offering a Limited-Duties Appointment shall contain a description of the duties and responsibilities attached to the position. No additional duties and responsibilities shall be required of the Member, unless the Member agrees, in writing, to accept these additional duties and responsibilities.

20.2 If, after Appointment, a Part-Time Members agrees to accept any duties or responsibilities not referred to in the Letter of Appointment, the Chair (Dean) shall specify in writing such extra duties and responsibilities, together with a schedule of supplemental remuneration. This shall be appended to the Letter of Appointment.

p. 168
1. A Member's Workload consists of activities undertaken in fulfilment of his or her Academic Responsibilities in the areas of Teaching, Research and/or Service, as defined in the Article Academic Responsibilities of Members.

1.3 The Workload of Part-Time Members shall be defined by the Limited-Duties Appointments they hold, and shall consist of the duties and responsibilities specified in the Letter of Appointment for each Limited-Duties Appointment. Subject to the provisions of Clause 4 of this Article, the Workload associated with the teaching of a particular university degree credit course shall be similar for both Full-Time and Part-Time Members.

3. Following ratification of this Collective Agreement, and following each anniversary of this ratification, a Workload Committee shall be established in each Department or in each Faculty without Departments, as applicable. This Committee shall be chaired and convened by the Chair of the Department, or in the case of a Faculty without Departments, by the Dean of the Faculty. In addition to the Committee chair, the Committee shall consist of a minimum of three Members, of which no more than one shall be a Part-Time Member, elected from and by the Members of the Department or Faculty."

Compensation for part-time members is set out at p. 51 at Section 52 which in part states:
"Part-Time Members shall continue to be paid on a per-course basis. Subject to the provisions of Clauses 53, 54 and 55, effective July 1, 2000, minimum compensation for teaching the equivalent of a full university degree credit course will be."
and there is contained specific compensation for Tier 1 and Tier 2 Members and Other Part-Time Members followed by specific compensation for Additional Qualifications course and the Facility of Education and the Faculty of Music.

It is the Association's position that while part-time employees are paid per course at the stipulated rates set out in these sections, they have duties as assigned including Research and Service through their letters of appointment which should be compensated on the basis of full university credit course when they are performing services for the University. That they have not been paid by the University for their time involved in such services is the basis of the grievance. Prior to this collective agreement, part-time employees were excluded from participation in the University committees and Senate but are now permitted under the collective agreement to carry out functions in the three major committees of Appointments, Workload and Annual Performance Evaluations. Reference in this regard was made to the composition of the Appointments Committee, p. 24:
 

"5.6
a) the Chair of the Department (Dean of the Faculty), who shall chair the Committee;

b) two Full-Time Tenured Members from the Department (Faculty) elected by the Full-Time Members from the Department (Faculty);

c) other Members of the Bargaining Unit in the Department (Faculty), elected by the Full-Time Members from the Department (Faculty);"

The Workload Committee as set out above at p.168 and the Annual Performance Evaluation Committee, p. 12 and 5.1:
"Where the Department or Faculty elects to have an Annual Performance Evaluation Committee such a Committee shall be established. Subject to the provisions of Clauses 6.1 and 6.2 of this Article, this Committee shall be chaired and convened by the Chair of the Department, or by the Dean or designate in the case of a Faculty without Departments. In addition to the Committee chair, the Committee shall consist of a minimum of three Members, of whom no more than one shall be a Part-Time Member, elected from and by the Members of the Department or Faculty."
The Association's position is that when part-time faculty members perform service in addition to their teaching responsibility, they should be paid for their time on Committee's which is part of their academic responsibilities as explicitly mandated under the collective agreement.
At p. 7:
"Each Member shall be entitled and expected to accept an equitable share of administrative responsibilities by participation in the work of the University through membership on, for example, Department, Faculty, Senate and University committees. Other examples include the Association's Executive, Negotiating, Contract, or Grievance committees. Where participating in such bodies is by election or appointment, a Member shall be elected or appointed only with his/her consent. Those who have the responsibility to make such appointments shall endeavour to ensure that Service commitments are shared equitably.

8. A Member who holds a Probationary or Tenured Appointment shall have Academic Responsibilities in each of the three areas named in Clauses 2 through 7 of this Article, unless there is between the Member and the Employer a written agreement to a different set of responsibilities. Any such agreement shall be consistent with the provisions of this Collective Agreement, and a copy shall be sent to the Association.

8.1 A Member who holds an Appointment other than that described in Clause 8 shall have his or her Academic Responsibilities specified at the time the Appointment is made. Those responsibilities shall be consistent with the provisions of this Collective Agreement."

The University's position concerning the application of the above-referenced provisions of the collective agreement is that both on Workload and Compensation, there is a clear distinction made by the parties between the full-time and part-time academic members in that full-time professors have three components in their work for which they receive their annual salary. Their time in the three areas involved is generally recognized as divided on the 40-40-20 formula. Part-time members however, with Limited Duty Appointments are not covered by those sections of the Normal Workload provisions and are assigned only to teaching courses as set out in their letters of appointment. Part-time employees are paid on a per course basis with no provision for them to be paid by the University for their performance of service. No scale for such compensation is included in the collective agreement with reference to Section 20.1 so that when a part-time member voluntarily assumes duties other than requested by the University, it does not have obligation to pay compensation thereby even though a part-time faculty member may be elected by their peers to sit on committees on which they may provide valuable contributions. They are not entitled to pay for such time under the collective agreement when their roles on committees are not assigned but voluntarily assumed by the part-time member.

Sheila Deane holds a Doctorate in English from the University and has been teaching part-time at the University since 1989 courses in English and Women's Studies in which department there are two full-time staff and the balance of 85% of the workload is undertaken by part-time staff of ten instructors. The Committee work in which she was involved related to Women's Studies, an Advisory Board and a Steering Committee which were involved in the daily operations of the Unit on which the part-time faculty had not before participated. She was asked to teach, assist in workshops and orientation which tasks she did for some time for which she was paid a lump sum. She referred to the recommendations of the Review Committee Report in May 2000 as to the Faculty in the Women's Studies Department. She as a Tier 1 Limited Duty appointment which she considered more permanent because of her long-term prior appointments. She met with the Steering Committee representing part-time issues especially with regard to hiring but participated in all activities of that committee and also had liaised with the Student Council and the Advisory Board. For these activities, she was paid $500.00 as a "consultant fee". She received a letter of appointment dated August 22, 2000:

"at the rank of Adjunct Professor in the Centre for Women's Studies and Feminist Research. This is a Tier 1 Limited-Duties two-year rolling contract which will become effective on September 01, 2000 and automatically renew unless written notice is given that it will not be renewed, at which point the non-renewal provisions of the Collective Agreement will apply…"
The letter goes on to indicate other terms and at p. 2 contains the following:
"In consultation with the Director and Appointments Committee, and in accordance with the Article on Academic Responsibilities, and the Article covering Workload, your duties will be primarily in the areas of Teaching with ancillary duties related to Service. Your specific duties for the initial period of this contract will consist of teaching Women's Studies 020E, 001. You will be responsible for all activities associated with successful delivery, including but not limited to the following:

6. Service, which includes administrative responsibility and committee participating if and when appropriate as outlined in accordance with the Collective Agreement and its terms."
Professor Deane had another contract for English Studies. She said that "Service" to her meant work concerning Orientation and sitting on the Course Committees and English Studies with other teachers, department meetings and other aspects of teaching responsibilities such as supervising teaching assistants, preparing new materials and revising courses. There is a Performance Evaluation Committee in the English Department which develops criteria for the evaluation of faculty approved by the Dean in the Department of English in which there are many part-time teachers who do a significant portion of the Undergraduate teaching in that department and who are highly qualified teachers. She was a member of the Annual Evaluation Committee and said that consideration of rehiring of part-time teachers involved their general participation and helpfulness outside of teaching such as orientations and assisting during March break. She agreed that her work at the Centre was not undermined by her refusal to take on extra work for the compensation offered by the University which she considered to be insufficient at the time.

Barbara Murison holds a Doctorate from the University at which she has taught on a part-time basis for ten years after one year of a full-time Limited Term Appointment on the Main Campus and one year at King's College. She teaches in the History Department which has twenty full-time and ten part-time faculty members who teach about 1/3 of the Undergraduate Student Courses. She said that prior to the collective agreement, part-time faculty were not eligible for election to committees and had little share in the governing of the department although they may have attended departmental meetings. She was reappointed as a Tier 1 member in the fall of 2000 and was elected to the Performance Evaluation Committee in the Department for the following academic year and is now on the Curriculum Committee for the History Department. She had attended some committee meetings before she had received her replacement appointment letter dated  October 17th and felt she would, along with other part-time faculty members, be paid for her service on these committees and said she spent over thirty hours in this endeavour. On October 20th, she said that Mr. Mercer told her that she could not unilaterally amend the Letter of Appointment (as to P. No. 6) and a copy without her amendments was available for her to sign but her pay would be withheld until she did so which she did on a "without prejudice" basis.

She said that three part-time faculty members were elected to committees in her department including the Performance Evaluation, Workload and Curriculum Committees which was crucial and were included on their performance evaluations. She said that a Limited-Duty Appointment could only be evaluated formerly based on their paid activities. The department recognized their contribution to Research and Service which reference however, at the objection of the Dean, was removed from the draft which left that part-time appointments would be evaluated only on their paid activities though what they did in the department would be considered. Their personal research projects are done on their own time without recompense. She agreed that her evaluation was based on her teaching but was informally thanked by the Chair for her service contributions but has not been paid for any of her service duties.
 

Theresa Hooks holds an MA with a Ph.D. "to come" in Sociology, and has taught as a Tier 1 Part-time employee of the University in Women's Studies and Sociology. She said in that department most of the part-time faculty are excluded from committee work however, she was a member of a committee dealing with an allegation of sexual harassment. She received a replacement appointment letter in September, 2000 and told the Dean when she returned it that she was not willing to perform service and crossed out the parts of the letter where she said that the University asked her to do work without pay. On her return to work, a fresh contract was available to be signed before she would be paid and did so without prejudice. She has not participated on any department faculty committees since her appointment. The department has Performance Evaluation and Workload Committees which have developed criteria to which she referred and includes "for limited term and limited duties members this may include activities in the areas of teaching and service. Limited duties faculty will only be assessed in the areas of responsibility defined in their letters of appointment… and the draft of the evaluation criteria was approved so that it was her view that she would be evaluated on teaching and her service.

The part-time Faculty did not participate in any of the departmental committees as they would not be paid for their time according to the Chair. She is a member of the executive of the Association to which position she was elected and is Chair of the part-time Role Committee. She said that the Association had received complaints about the implication of signing the appointment letters after the members had started to teach and were under pressure to sign or lose pay. Therefore the Association issued a special bulletin to the part-time faculty not to "do work you are not paid for" and listed tasks which the Role Committee had been told that part-time faculty had been performing but without pay. The part-time teachers in the Sociology Department were excluded from most of the committees and were not allowed to attend the Department Assembly which consists of full-time faculty only. The Association's position was that it had attempted to negotiate broader terms for the part-time faculty but had not been successful so that they were only being paid for teaching and if they performed additional work for service then they should be paid for that work. She said that in fact, part-time employees have performed this work for a variety of reasons such as being part of the academic community and their concern that if they did not do so, they might not get reappointed and their positions would be in jeopardy. It is the Association's position that the part-time faculty should decide themselves whether to perform these extra duties but when they do provide such services, they should be paid for their time by the University.
 

Ryan Fraser, a part-time Faculty Member in Performance Studies of the Music Department where he has been employed since 1998 said that there are eight full-time and thirty to forty part-time faculty in his section and overall twenty-eight to thirty full-time faculty members. He said that before the collective agreement was in effect, in general adjudicating recitals, auditions, and performance by faculty was paid but since the contract, pay is different and is set according to the schedule of compensation for the Faculty of Music in the collective agreement (p. 52) containing a set of minimum rates. He said there is one position filled by election by the part-time faculty to the Education Policy Committee on which he served, there are four positions held by part-time members on the Faculty Council who are elected within the Music Faculty on which council he served being a member of the Annual Performance Evaluation Committee in the 2000/01 Academic year. He said he had an issue of being on that committee without remuneration as it involved a lot of his time. He felt strongly that it was necessary to recognize remuneration for work beyond his contract as he did have outside paid engagements for performances across the country. The Dean was unable to make any decision concerning remuneration although the issue was then according to the memo dated October 6, 2000, being reviewed by the Joint Committee which lead Mr. Fraser to agree to serve on the Committee. He said the Performance Committee developed criteria and that the members were evaluated for teaching. Although his colleagues wanted any extra work they performed recognized by the University, such extra activity was not used for the evaluation of teaching for which all of the part-time members are paid. He said that in 2001, aside from being a representative of the Union in the department, he was not involved in University services which are being discussed. He said that he could not earn a living while giving much time to the University for which he is not paid.
 

Candice Bray was a part-time member of Faculty in the Health Sciences Department of the School of Nursing from 1997-2001 and has now returned to her studies. He said the majority of the clinical staff are part-time faculty members. She taught in Family Nursing and Clinical and then moved to co-ordinating theory courses which fit into the clinical parts of the program and also did support work for the graduates in the Degree Program. After the ratification of the collective agreement, she was elected to the Workload Committee for the Faculty of that department and attended up to 35 hours of committee meetings excluding preparations. Before that committee, she had worked on the Curriculum Committee because she was a Coordinator and had met monthly to discuss the Undergraduate Program which involved a lot of her time with three hours at each meeting plus her preparatory work. After she received her contract for the following year, her work on the committee was not written in the contract and there was no willingness to add it so that she would not be paid for her time. She refused to continue with the committee work and returned her signed contract "without prejudice". With the references to service in the contract, it was her expectation that if she performed service to the University, she would be paid.
 

Michael Dawes holds a Doctorate from Toronto and is an Associate Professor in the Department of Mathematics at the University where he started as a Lecturer in 1971 and acted as the Chief Negotiator for the Faculty for their first collective agreement. He said there are few part-time members in his department but it is apparent that their role is teaching. He said there are different organizations and balances of workloads in the various departments of the University and he had canvassed faculty members as to the practices in other departments. He found there was variability as to the extent of involvement of part-time members in Services to the University. Prior to the collective agreement, the eligibility of part-time members to participate in committee work was variable with some units having constitutions providing for their participations while others did not have any formality in that regard. He said one of the goals in their bargaining was to provide a structure for this service work. There are specific provisions in the collective agreement for potential participation of part-time members in the governance of the various units with specific reference to the three areas recognized in the collective agreement. It is the Association's position that service for part-time faculty members on committees would be paid by the University with reference to the full-course credit formula such as applied in the Faculty of Music. The Association's position is that there are minimum payments under the contracts for part-time faculty members for teaching which do not include Service but as they are entitled to participate in the governance of the University, they are entitled to remuneration when they do so and would be usually evaluated in the equivalency of a University degree credit course as to earnings set out in their letter of appointment. The Association told their members who were confused by their letters of appointment that without remuneration for their service work, they would not be required to perform service. The collective agreement established the basis for eligibility for election of part-time members to specific committees set out in the collective agreement which does not however, contain rates or manner of compensation for services performed for the University by part-time members. They do not claim pay for their Service on Association's committees or to those external to the University on which they may be encouraged to participate but do claim payment for the part-time faculty participating on those committees set out in the collective agreement. The Association claims compensation for the part-time faculty members who are involved in that Service for the University.
 

Alex Mercer is a Director of Faculty Relations which position he has held since May 2000 with responsibilities to implement and administer the collective agreement. He prepared the letters of appointment for the part-time members who received identical letters (except as to teaching requirements) which he composed and referred specifically to the following general terms in those letters:

"In consultation with the Chair and Appointments Committee, and in accordance with the Article on Academic Responsibilities, and the Article covering Workload, your duties will be primarily in the areas of Teaching with ancillary duties related to Service. Your specific duties for the initial period of this contract will consist of History 186, History 229E, plus co-ordinating History 186. You will be responsible for all activities associated with successful delivery, including but not limited to the following:

- 6. Service, which includes administrative responsibility and committee participation if and when appropriate as outlined in accordance with the Collective Agreement and its terms..."

This excerpt was taken was from the letter sent to Professor Murison dated October 17, 2000. He said he knew that the part-time members could be elected to serve on Performance Evaluation, Curriculum, and Workload Committees and inserted this language to make sure in his opinion, that if the part-time person became a member of these committees, there would be no pay to them for this work and intended to stop any confusion thereby. It was not his intent to require part-time faculty to serve on other committees without remuneration if the University assigned Service work to a part-time member as indicated in Section 20.2 which is voluntary by the part-time member and by which payment is negotiated for their time. He rejected the amendments written by Professor Murison on her letter of appointment which was subsequently signed as written but without prejudice.

Mr. Mercer said there are between 5-600 part-time employees working under appointment letters and of those when he canvassed the Deans to learn how many of these employees had served on the three committees noted in the collective agreement and the Health and Safety Committee, there was a response of six or seven part-time employees who were actually members of these committees. He said on his investigation of payroll records, Sheila Deane was paid for her service in a consulting relationship (NCNR).

It is his understanding that a part-time member assigned by the University to service in accordance with the collective agreement would be paid for their time but those who may be elected to serve on committees would not receive compensation by the University as service on such committees are not required by the University which is responsible for pay only in the terms of Article 20.2 which does not in his view, apply to voluntary participation by part-time faculty members on committees.

It is the position of the Association and its submission that where part-time faculty members perform service by election or by invitation or as assigned by the Administration of the University to any committees concerning the governance structure of the University, they are entitled to compensation by the University on the basis of full course equivalency. By failing to do so, the University has violated Section 20.1 by the letters of appointment which require service for the members without providing compensation for such work which on the face of these documents includes administration and committee responsibilities in accordance with the collective agreement. That service cannot be required of the faculty member without the agreement of the individual under Section 20.1 and specifying the remuneration for their service as part of the Community of Scholars who are required to teach, to do research and perform service for the University. Full-time Faculty are paid a salary which includes their compensation for the performance of service to the University. When part-time faculty are engaged in the collegial decision-making process to carry out the business of the University with their services on departmental committees such as Workload, Evaluation and Curriculum as well as other standard committees such as the Faculty Counsel in the Music Department, their time spent on these committees should be paid whether or not their participation is assigned or if they are elected or invited to serve on such committees as required under the Appointments Articles, 20.1 and 20.2 in the collective agreement.

The letters of appointment issued in 2000 specified that service was required so that it was incumbent upon the University to pay those part-time members who did engage in the decision-making processes whether such service was specified in the individual letters but by which it was submitted that the individual agreed to accept the extra duties. It is not whether a Dean assigns such duties but whether under these articles, a part-time faculty member accepts the responsibilities which can be obtained by election within the departments or by invitation to the member to serve on the committees. A Dean cannot assign an elective position to a Faculty Member as only the members in the community can trigger the participation of full-time or part-time members on a committee where an election is required. The example of the numbers of part-time faculty in Women's Studies and English referred to by Professor Deane indicates the importance of their participation in their operation of these units and as she was paid but for an incorrect amount according to the Association, they should be compensated for their involvement in committee work including an Advisory Board and Steering Committee set up in those areas. Professor Murison was elected to the Performance Evaluation Committee and was involved for over thirty hours and expected to be paid for that work and was concerned with the requirement for service set out in her letter of appointment without pay but without a signature on the letter as written, her pay would be withheld so that she signed without prejudice. Other part-time faculty participated in committee work the involvement in which is crucial in dealing with the problems of these departments.

Prior to the collective agreement, most part-time faculty were excluded from participation in the various University committees and for reference in the Department of Sociology, when the Chair told the part-time faculty that they would not be paid for work on departmental committees, they were not nominated or elected to the committees, yet there are significant numbers of part-time faculty in the department. It is not appropriate in the Association's position to exclude part-time faculty from that form of service for the University. Ryan Fraser was asked by the Chair to serve on the Evaluation Committee and let his name stand but was concerned that he would not be paid when he had outside engagement commitments for performance. He assumed that the letter of appointment referred to service as a natural part of teaching but where he had agreed to stand for work on a committee, he expected payment. Similarly, Professor Bray expected payment for her work when she was elected to the Workload Committee in Health Sciences and subsequently declined to serve on the committee because there was no reference to pay for her service.

Prior to this collective agreement, the practice as to Part-Time Faculty varied as to their involvement in University committees which was changed by the collective agreement which established appointments for Workload and Evaluation committees with the participation of part-time faculty across the University. Professor Dawes, the Chief Negotiator for the Association understood that part-time Faculty would be paid when they performed this service work as they are entitled to participate in those activities under the agreement. Payment to them to his understanding would be such as applied in the Faculty of Music on a full course equivalency basis for their real contribution to the University governance both as to their experience and sharing the burden of the work of the departments with full-time faculty. Reference was made to the composition of the Appointments Committee, Section 5.6 (c ) which includes part-time members and the recognition of service in the Academic responsibilities in Sections 6, 8, 8.1, and 9 (f). The meaning of Service is the same for Full-Time as Part-Time Faculty Members but for whom it is specified in their letters of appointment. While Full-Time Faculty Members are expected to provide Service as part of their salaries, Section 5.1 of the Workload provisions recognizes that some components of service can be assigned while other duties may arise by election or invitation to the various committees under the collective agreement. In Section 3, the Workload committee is established which can have part-time members and an Annual Performance Evaluation committee is also set up with provision for a part-time member under Section 5.1.

It was further submitted that if the undertaking of Service by part-time faculty is not expressly set out in their letters of appointment, extra pay is contemplated under Section 20.2 when the faculty member accepts additional duties and responsibilities. When a part-time member is therefore invited or elected to a position on a committee, payment is required for their service as well as any other service work which may be assigned by the University as required in Section 6 of the Academic Responsibilities Section of the collective agreement. Without such compensation, there is a disinclination for part-time faculty to participate in University functions where they are necessary and important to the departments in which they teach.

While it is acknowledged that the collective agreement does not clearly set out that part-time faculty will be paid for their work on committees, it is submitted that considering all of the sections as a whole, the intent of the parties is to recognize the Part-Time Faculty Service work with a right to be paid for their time spent on these activities for the University. In the alternative and at least, Part-Time Faculty should be compensated for their duties and responsibilities when participating on the committees established under the collective agreement.
 

Reference was made to the following: Re University of Windsor Faculty Association v. University of Windsor (O.L.R.B.), 1867-75-R, (Kates, May 9, 1977); Re Ontario Hydro and Canadian Union Public Employees., Local 1000 (1983) 11 L.A.C. (3d)404 (Shime); Re Abbott Laboratories Ltd. and United Steelworkers, L. 440 (1995), 48 L.A.C.(4th)251 (Starkman); Re Textron Automotive Interiors v. U.S.W.A., L. 889L (2000), O.L.A.A. No. 61 (Gordon, January 25, 2000); Re Corporation of the City of Brantford and Canadian Union of Public Employees, L. 181, (2000) 93 L.A.C. (4th)14 (Armstrong); Re City of Toronto and Toronto Civic Employees Union, L. 416 (unreported, H.D. Brown, February 22, 2001); Re York University and York University Faculty Association (unreported, Knopf, November 28, 2001).
 

It is the submission of the University that the essential question is whether the part-time faculty who are engaged in the governance of the University should be paid for that time and in its position, the collective agreement does not provide for payment on the voluntary assumption of committee duties by part-time faculty members. The issue is not whether it is fair to pay the Limited Duty-Appointment members for their participation on committees, they are engaged by contract solely to teach assigned courses which is all they have been hired to do and not for Research or to provide Services to the University and are therefore not entitled to compensation within of the terms of the collective agreement. Even where such Faculty perform service of value to the University, there is no entitlement under the collective agreement to compensation when there is a voluntary assumption of duties in the three areas of Academic responsibilities which fall within the full-time positions as set out in Section 8.1. As to the workload provisions, full-time members have a responsibility in the three areas set out in Section 1.1 with the accepted formula of 40-40-20 but by Section 1.3, the part-time members are limited by the terms in their letters of appointment and there is no assumption thereby that these terms will include the three areas ascribed to full-time members and in which there are no references to Research and Service. The Limited Duties Appointments sections refer to courses to be taught with the criteria in Section 18.4 referring exclusively to teaching which is continued under the application to competing candidates in Sections 19.1 and 19.2. In its position, Section 20.01 provides the requirement for the assignment of duties which qualifies the Association's reliance on 20.2. If a part-time faculty member is asked to sit on a committee, they can accept or not but on their own cannot assume additional duties and then require the University to pay for their services.

Full-time faculty members are paid an annual salary in return for which they are expected and required to teach, to do research and provide service to the University which is encompassed in their salary but the agreement has a different approach to Part-Time Faculty who are paid on a per course basis for which they are engaged to teach. If therefore, the parties intended that compensation would be available to part-time faculty including their work on committees, there would be a specific provision in the collective agreement but which is absent which is therefore telling as to the Association's position in this issue. There is then, no provision in the collective agreement for payment for Services voluntarily undertaken by part-time faculty as is contained in the salary terms for Full-Time Faculty members. There is no description of the scope of service claimed by the Association for payment or provision for additional pay for part-time members who understood that by their letters of appointment they were engaged solely to teach. The Association was unsuccessful in negotiating better terms for the part-time faculty.

Prior to the collective agreement, part-time members undertook service requirements in order to obtain and maintain their work but now with some job security, according to the collective agreement, they request payment for services although they are contracted only to teach and are not required to serve on committees of the University. The Union committee knew of these issues at negotiations of the collective agreement and did obtain special provisions such as for the Music Faculty but those terms are not applied generally to committee work which may be assumed by part-time Faculty. They could reject as did Professor Bray, that committee work, the extent of which is not controlled by the terms of the collective agreement nor does it contain a method of payment if and when a part-time faculty member provides service through work on committees. If a Dean offered extra duties and responsibilities to a part-time faculty member with scheduled remuneration, the offer can be accepted or rejected by the faculty member under those terms. It is the University's submission that a part-time member cannot assume voluntarily or by election such committee work and require payment beyond the terms in their letter of appointment which includes such service. Re Cooper Tool Group Ltd. and U.S.W.A., L. 6497 (1975), 10 L.A.C. (2d)407 (O'Shea); Re Governing Council of University of Toronto and Canadian Union of Educational Workers, Local 2 (1984) 15 L.A.C.(3d)21 (Weatherill).

It was further submitted that it is beyond the arbitrator's jurisdiction to amend or add a new provision in the collective agreement to allow the claim of the Association. There is no demand in the letters of appointment that the part-time faculty participate in the committee work and no evidence that these individuals were required to participate in the work of any committee. Those who did, were elected after they had agreed to stand for the committee and were not required by the University to do so. There is no evidence of disadvantage to them in their performance appraisals by not participating in committee work and both Professors Murison and Fraser agreed that the Evaluation Committees on which they sat evaluated members only on their teaching. The University according to Mr. Mercer, never intended to require service of part-time members without remuneration but put them on notice that their election to committees would not entitle them to compensation from the University as they were not required to volunteer for service and entitled to additional compensation except where the University requires such payment as per Section 20.2. To require the University to pay for voluntary service of a part-time faculty member requires specific language in the collective agreement which is absent and there is no other clause which could be interpreted to allow such compensation for additional duties voluntarily undertaken by part-time Faculty.

It is the University's position that the part-time faculty members who have Limited-Duties Appointments have no right to claim additional compensation for service related activities for which they have voluntarily assumed. The issue is not that of fairness but of the application of the terms of the collective agreement under which the University does not require Part-Time Faculty to serve on committees and therefore they are not entitled to be paid for their service unless they are assigned to do the work which in its view, is the extent of the deal between the parties.

The issue in this matter concerns those Faculty Members who are part-time with Limited Duties Appointments and those who testified are Tier 1 members as set out at p. 31, Section 19. To have that employment, Section 20 thereof requires a Letter of Appointment from the Dean or Chair with the terms and conditions of that appointment. Letters of appointment were prepared under the direction of Mr. Mercer and sent to the faculty members involved with the examples of Exhibit 6 to Professor Deane and Exhibit 9 to Professor Murison each of which and the others of reference contain identical conditions that their duties would be primarily in the areas of teaching "with ancillary duties related to service" and including paragraph no. 6 referred to above. I find that it was clearly the intention of the University to exclude voluntary participation in committee work by these members from additional compensation which would apply only where the member was appointed or assigned by the Dean or Chair and the member agrees to assume those duties. The Association has rejected that interpretation and asserts that as part-time faculty members are entitled to serve on various committees to which they may be invited or elected to serve as set out in the collective agreement, the University is obliged to compensate them for such service work at a value such as set in the Faculty of Music based on a full course equivalency. The question must be resolved with reference to the individual contract and the terms of the collective agreement which apply to the Part-Time Faculty members.

Firstly, the University is required when offering a Limited Duties Appointment to describe the duties and responsibilities of the position which has clearly been done in these examples of the letters of appointments in the fall of 2000 as entered into by these Faculty Members although without prejudice to their rights in the form referred to above and listing the courses for which they are engaged to teach but are not limited thereto having referred in that paragraph to "ancillary duties related to service". The faculty member therefore knew by that clause that their contract for work could extend beyond their teaching duties in this manner, the definition and scope of which is made a specific inclusion in the contract by paragraph no. 6. In my opinion, that condition clearly expresses what a faculty member can expect as part of their ancillary duties which is their committee participation "if and when appropriate as outlined in accordance with the collective agreement" which is the answer to the Association's demand in this grievance. Because of this clear expressed term of the individual contract, the voluntary participation by a part-time faculty member on any of the committees in the University on which they are entitled to sit as set out in the collective agreement which gives the specific reference to their appointments and election to such committees, is included in the ancillary duties related to service for which they have contracted in addition to their teaching duties by the express terms of the letters of appointment. That is the deal they entered into with the University through this form of individual contract.

Having regard to the foregoing, Section 20.1 is a form of escape clause for a Faculty member who may accept or reject any extra duties which that may be requested by the Dean or Chair. Any such acceptance of an offer of extra duties must be in writing which underlines the importance placed by the parties on the scope of the duties and responsibilities of the Part-Time Faculty member. If however, the member accepts an assignment by the Dean or Chair to any extra duties not set out in the letter of appointment which could be for service with a Departmental or University committee, the parties again have stressed the importance of that agreement which must be in writing in which event, there is supplemental remuneration. Although the extent of that compensation has not been defined by the parties, there would be a basis, as Professor Dawes indicated in his testimony, that applicable rates such as in the Faculty of Music on a full-course equivalency would be considered. That however, is a separate issue requiring definition following a Faculty member's agreement to accept any such additional duties offered by the Chair or the Dean.

The collective agreement does not include a provision for payment to Part-Time Faculty Members who serve voluntarily either by invitation or election by their peers to the departmental committees or those set out in the collective agreement with compensation at any level for their services in that capacity. By Section 14.3 (p. 93) of the collective agreement, the Arbitrator "has no jurisdiction to alter, amend or add to or subtract from this agreement" which would I find, be necessary to allow the compensation claim expressed in the grievance. The Part-Time Faculty members are engaged to teach the courses set out in their letters of appointment and are evaluated, according to the evidence solely based on their teaching. When that is considered in the light of the specific terms and what I find to be clear intent and meaning of those terms contained in the Letters of Appointment, it follows that the issues raised in this grievance must be answered by the acceptance of the position of the University.

While Part-Time Faculty Members are given certain rights of participation in the Academic community of the University through the terms of this collective agreement which did not previously exist, and are recognized as a significant part of the teaching and operational requirements in each of the departments in which part-time faculty members are found and who are well qualified and dedicated to their academic tasks, unlike the Full-Time Faculty member whose salaried employment covers the three areas in the general ratio of 40-40-20, the Limited Duties Appointment Faculty are subject to specific individual contract arrangements which form the basis of their compensation to which they are restricted. To that extent set out in these individual contracts, their compensation is limited by those specific terms under which it cannot be held that they are entitled to extra remuneration for their voluntary service on committees as that is a specific part of the definition of service included in the remuneration paid for their contract. If otherwise, it would not in my view be necessary to carefully indicate the conditions under which extra duties may be required by the Dean and the reference in Sections 20.1 and 20.2 "to additional duties" are those outside of what has been included by reference in the letters of appointment and it is those terms of the collective agreement which the arbitrator must strictly apply.

There is no doubt on the evidence given in this case that Part-Time Faculty members are of great value to the University and may participate in its governance in the terms set out in the collective agreement which however, refer to their right of participation not of compensation. Their remuneration is set by the letters of appointment and cannot be unilaterally increased by additional compensation for voluntary service. The right of a part-time faculty member to participate in the committees set out in collective agreement is given by such terms but which service can be accepted or rejected or they need not stand for election so that it is only when additional duties to those contained in the letters of appointment are required through the office of a Dean or Chair of a Department in which the part-time member is included that a form of extra compensation is application, the extent of which as noted is not defined. That is however, the key factor under this agreement to determine when extra compensation is payable to a Part-Time Faculty member by the University. Whether Part-Time Faculty Member with a Limited-Duties Appointment should receive payment for their participation in Departmental and University committees as a matter of equity and indeed practicality in departments where there are considerable numbers of Part-Time Faculty, is in many respects an obvious observation from the testimony in this matter but that determination however, does not arise and cannot be concluded by the Arbitrator's decision which must be based on the interpretation of the terms of the collective agreement which must be applied to the issues in the grievance.

The specification of the requirements of a part-time Faculty member is in accordance with the Academic Responsibilities Section 8.1, made at the time of their appointment which is for these individuals, specifically contained in their contractual Letters of Appointment and limited thereby. The academic responsibilities of the normal workload of a Full-time Faculty member in Teaching, Research and Service are not included except for ancillary duties with service as defined in their appointment letters. By these terms, I find that a Part-Time Faculty Member cannot undertake additional duties with reference to their voluntary participation on committees and require the University to pay more compensation than expressed in their contracts which is the meaning and application I must give to Sections 20.1 and 20.2 ( p. 32) of the collective agreement.

Having regard to all of the evidence and the submissions of the parties and for the foregoing reasons, it is my award that the grievance is dismissed.
 

DATED AT OAKIVLLE THIS 21st DAY OF MARCH, 2002.
 
 

HOWARD D. BROWN, ARBITRATOR