Directed by their employer to attend professional development sessions during their planned preparation time, two teachers grieved. Such a unilateral reduction of their allotted prep time was a violation of the collective agreement, the union said.
At issue was how to interpret the combined effect of two articles in the collective agreement.
Where Article 12.05 (b) established that teachers are entitled to 210 minutes of preparation time every cycle of five instructional days, Article 12.05 (j) stated that missed preparation time would only be rescheduled when a teacher had lost out on scheduled prep time because of orders from the principal to cover for an absent teacher.
Before the Arbitrator, the union argued that the teachers’ entitlement to 210 minutes of preparation time per five-day cycle was unambiguous and that any reduction of that time by the employer was an obvious violation of the collective agreement.
The limitation outlined by Article 12.05 (j) was designed to address the difficulty of making up for lost preparation time when unforeseen or last minute contingencies arise at the end of a limited window — such as when a teacher is called during his or her prep time to cover for another teacher towards the end of the five-day cycle.
Unilateral employer action
That was not the case here. Preparation time had been deliberately taken away by a unilateral employer action that had undermined and contravened the collective agreement, the union said. The parties had negotiated a clear entitlement to a minimum amount of preparation time and any diminution of those terms must be clearly set out in the agreement.
The union asked the Arbitrator to direct the Board to refrain from such violations of the collective agreement in future.
The employer denied that there had been any violation of the collective agreement.
Because contracts that govern professional services may be particularly vulnerable to frustration by an insistence on “working to rule,” courts and arbitrators generally extend school board employers a degree of latitude in assigning duties to teachers, the employer said.
This latitude is measured against a standard of reasonableness, and in this case there were no frequent or daily incursions into teacher preparation time that would indicate either a pattern of abuse or unreasonableness, the employer said.
The Board rightly retains the power to cancel teacher preparation time in order to assign other legitimate duties, the employer said. Moreover, because the contract entitlement refers to an amount of preparation time over the course of a cycle and not to a number of set times, the mere cancellation of a period of preparation time does not constitute a violation of the collective agreement.
Language to address issue
It was also important to note, the employer said, that the parties were aware that this particular issue had arisen in a number of other arbitration awards. In response, the parties had added the language of Article 12.05 (j) to address the issue, establishing that the only preparation time to be rescheduled was limited to the circumstances outlined in the agreement.
The Arbitrator disagreed.
Elements of the employer argument were supportable, the Arbitrator said. The employer did have the right to cancel teacher preparation time by assigning other legitimate duties. It was also true that teachers were not entitled to a specific period of preparation time but rather to a requisite amount of preparation time during the five-day cycle. This meant — as the employer had asserted — that the cancellation of a specific period of preparation time did not in and of itself constitute a violation of the collective agreement.
However, the employer was not entitled to cancel preparation time without any further obligation to the affected teachers, the Arbitrator said.
To allow that missed preparation time is to be rescheduled only in certain circumstances is not to give the employer license to diminish preparation time in any and all other circumstances without acknowledging any further obligation to the teacher, the Arbitrator said.
No benefit to teachers
Even after granting to the employer the latitude available to it according to the Supreme Court in Winnipeg Teachers, it was difficult to see how a unilateral employer reduction of a negotiated teacher benefit could be viewed as reasonable, the Arbitrator said.
“I am satisfied that the distinction posited by the Federation is a useful one for assessing the proper operation of the collective agreement provisions. In a case where emergent unexpected circumstances give rise to the need to assign a teacher to the classroom, the events can easily present themselves (e.g. at or near the end of the fifth day of the cycle) such that it is utterly impossible to maintain the requisite number of preparation time minutes within the five-day cycle. Thus, the exemption from the Board’s obligation to provide the required preparation time within the required period is one which makes operational sense.”
That rationale did not exist in this case, the Arbitrator said. The employer had ample opportunity to ensure that the requisite number of preparation minutes were assigned during the cycle. It failed to do so.
“The Board, effectively, asks me to conclude that through Article 12.05 (j) it has acquired a largely unfettered license to cancel scheduled preparation time and to thereby reduce the number of assigned preparation time minutes below the stipulated minimum. The agreement does not say that …”
The grievance was allowed.
