HomeMy WebLinkAboutUnion 15-06-29
IN THE MATTER OF AN ARBITRATION
PURSUANT TO THE COLLEGES COLLECTIVE BARGAINING ACT
BETWEEN:
ALGONQUIN COLLEGE
(the College)
-and-
ONTARIO PUBLIC SECTOR EMPLOYEES UNION,
LOCAL 415
(the Union)
Re: OPSEU Grievance Numbers 2013-0415-0048 and
2013-0415-0054
A W A R D
Paula Knopf - Arbitrator
Appearances:
For the Employer: Jock Climie, Counsel
Katherine Root
For the Union: Wassim Garzouzi, Counsel
Morgan Rowe
Pat Kennedy
Jack Wilson
J.P. Lamarche
The hearing of this matter was held in Ottawa on April 7 and June 15, 2015.
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In 2013 the College created new positions called Math and English Coaches in the
Student Learning Centre (SLC) and posted them in the Support Staff bargaining
unit. The Union has grieved, asserting that the positions ought to be in the
Academic bargaining unit. Although OPSEU represents both the Academic and
Support Staff bargaining units, they are separate and distinct entities by virtue of
the Colleges Collective Bargaining Act (the Act). The Support Staff bargaining unit
and affected employees were given proper and timely notice of this hearing and
elected not to participate. The soul issue to be determined is whether the English
and Math Coach positions fall within the Academic bargaining unit. My appointment
to determine this matter arises from the Academic Collective Agreement.
The Job Descriptions are important:
Math Coach
Job Description
Under the direction of the Manager of the Learning Resource Centre, the
incumbent will work as an integral part of the Student Learning Centre team
to provide math coaching assistance to students in select programs at
Algonquin College. The math coach will provide basic math coaching in the
area of science and applied mathematics. There will be up to two positions
available between 3 to 10 hours per week at flexible times to accommodate
the client.
The Student Learning Centre (SLC) is a Student Support Services pilot
project managed by the Learning Resource Centre. Opening in fall 2013
across from the Learning Resource Centre (C210), the Student Learning
Centre will provide students with assistance in the learning of
communication, math, and computer skills. These services to students will
include:
• One on one or small group coaching;
• Practice of basic skills needed to succeed in program courses;
• Delivery of large group orientation sessions;
• Referral to other College services as required.
Required Qualifications
• Minimum four (4) year university degree (in a math related discipline
preferred)
• Minimum two (2) years of tutoring experience, or equivalent, preferably in
a college setting
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• Demonstrated knowledge of postsecondary writing requirements
• Highly effective communication, presentation, and organizational skills
• Evidence of commitment to the success of all learners
• Experience tutoring ESL students would be considered an asset
• Excellent interpersonal skills
• Demonstrated ability to work independently and as part of a team
• Sensitivity to a culturally diverse student population
English Coach
Job Description
Under the direction of the Manager of the Learning Resource Centre, the
incumbent will work as an integral part of the Student Learning Centre team
to provide English coaching assistance to students attending Algonquin
College. The English coach will support students with their academic English
and writing skills and provide workshops on a regularly scheduled basis
through a student-accessed online booking system. There will be up to five
positions available between 6 and 20 hours per week at flexible times to
accommodate the client.
The Student Learning Centre (SLC) is a Student Support Services pilot
project managed by the Learning Resource Centre. Opening in fall 2013
across from the Learning Resource Centre (C210), the Student Learning
Centre will provide students with assistance in the learning of
communication, math, and computer skills. These services to students will
include:
• One on one or small group coaching
• Practice of basic skills needed to succeed in program courses
• Delivery of large group orientation sessions
• Referral to other College services as required
Required Qualifications
• B.A. in English with a Bachelor of Education or equivalent combination of
education and experience
• Minimum two (2) years of tutoring experience, or equivalent, preferably in
a college setting
• Demonstrated knowledge of postsecondary writing requirements
• Highly effective communication, presentation, and organizational skills
• Evidence of commitment to the success of all learners
• Experience tutoring ESL students would be considered an asset
• Excellent interpersonal skills
• Demonstrated ability to work independently and as part of a team
• Sensitivity to a culturally diverse student population
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The parties presented their submissions based on the following Agreed Statement
of Facts:
WHEREAS the Union filed a grievances alleging the College, through job
competition posting SS-080-13 and 14, created support staff positions that clearly
had academic responsibilities and required qualifications in line with a faculty
member, in violation of Articles 1, 2, 6 and the Job Classification Plans for
Positions in the Academic Bargaining Unit;
AND WHEREAS the Grievance is scheduled to be heard before Arbitrator Knopf
commencing on June 15, 2015 in Ottawa, Ontario;
AND WHEREAS the Union and the College wish to expedite the hearing of the
Grievance by agreeing to some of the facts upon which the Grievance shall be
determined and thereby limiting the need for viva voce evide nce;
NOW THEREFORE the Union and the College agree, for the litigation of the
Grievance only and for no other purpose, to the following facts and documents:
1. Algonquin College and the Ontario Colleges of Applied Arts and Technology
are parties to the central collective agreement between the College Employer
Council (the Council) for the Colleges of Applied Arts and Technology and the
Ontario Public Service Employees Union (for Academic Employees). A copy of
the collective agreement [was filed] as Exhibit 1.
2. The College established a Student Learning Center (SLC) in October 2013
and recruited for part-time Coaches. The job competition poster for a part-time
English Coach was posted on August 26, 2013. The job competition posters for
English and math coaches [was filed] as Exhibit 2. The position was placed under
the support staff bargaining unit.
3. The College modelled its SLC around a similar service offered at George
Brown College. Algonquin College had one of its managers visit with
representatives of George Brown in order to learn how they run their centre.
George Brown's centre is called the Tutoring and Learning Centre and is very
similar to Algonquin's SLC. Information about this service, taken from George
Brown's website, is attached. George Brown has always classified their "Advisor"
positions as Support Staff. There are no arbitral awards overturning George
Brown's classification of these positions. The promotional materials [was filed] as
Exhibit 3.
4. When Algonquin College created the Coach positions they also reviewed the
existing jurisprudence on the subject and purposefully designed the duties of the
Coaches to fit within the principles enunciated in the case law.
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5. When the Union brought its grievance it reviewed the existing jurisprudence
on the subject and purposefully designed its grievance form to fit within the
principles enunciated in the case law.
6. The Union filed separate grievances challenging the coaches‟ job competition
postings, requesting that the work be recognized as academic work. The
grievance forms [was filed] as Exhibit 4.
7. The SLC provides support to students in three areas: English (Writing and
ESL), Math, and Computers. The purpose of the SLC is to provide support to
students with an emphasis on empowering students. Coaches are not there to
correct students‟ work or teach new curriculum material. Every Coach that has
been hired has been given very specific instruction from the Manager in this regard
and students have been turned away from the SLC if they have come for this sole
purpose.
8. The SLC Coaches report to Tammy Thornton, who is the Manager for
the Library, the Peer Tutoring Centre and the Student Learning Centre. The
Library currently has 16 full time staff who report to Ms. Thornton. Two librarians
are members of the Academic union, and the other fourteen staff are members of
the Support Staff union. The Peer Tutoring Centre has one full time Support Staff
member who also provides general support to the SLC. The Student Learning
Centre does not have any full time staff.
9. SLC Coaches work part-time hours. There are currently five part-time
English Coaches who are scheduled between three and thirteen hours per week.
Historically, coaches have worked between three to eighteen hours per week.
10. In addition, there are currently two part-time math coaches who are
scheduled between eleven and sixteen hours per week. Historically, coaches have
worked anywhere between four and sixteen hours.
11. There is one computer coach who is scheduled to work twenty-three hours
per week.
12. The SLC provides a Coaching Schedule. The Coaching Schedule for
February 2 to April 17, 2015 [was filed] as Exhibit 5.
13. SLC Coaches are subject matter experts and provide coaching in only one
subject area. SLC Coaches review the fundamentals of their assigned subject
area. They provide a refresher of information previously taught.
14. SLC Coaches spend the vast majority of their time providing coaching to
students in the SLC.
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15. On occasion, the SLC Coaches will go to classrooms to describe the services
offered by the SLC to the students.
16. The computer Coach also engages in orientation of first-year students to the
electronic and network resources available at the College.
17. Exhibit 6 [contained] examples of SLC promotional material.
18. Coaching sessions are one-hour long. Students are able to attend a
maximum of two coaching sessions a week, per subject, excluding math where
they can drop-in as often as they like. Students can either attend one coaching
session or can return repeatedly throughout a se mester for ongoing coaching.
19. Students may attend coaching sessions alone or may participate in group
coaching sessions.
20. Generally, English coaching sessions have a maximum of two students per
group session. The SLC piloted three students per group starting in the winter
2015 semester; however, this changed to two students per group based on
feedback.
21. Math coaching sessions may have up to six students per group session.
22. Students can be referred to the SLC Coaches through a number of avenues:
a. Word of mouth including referrals from the College community at large.
b. Some students are aware of the SLC‟s coaching services through the
promotional orientations given by the SLC Coaches or other SLC promotional
material.
c. Students can be referred directly to the SLC Coaches by professors when
they are experiencing difficulties in courses.
d. Student Success Specialists have promotional material on the SLC so that
they can and do advise students of the availability of the service.
23. If a Professor comes to speak to a Coach about a particular student then the
Coach may choose to discuss the matter.
24. Students may bring their course outlines to a Coach in order to better enable
the Coach to understand the areas that are in need of review. Coaches have
access to all course outlines should they deem it necessary to review one.
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25. Students book coaching appointments online or through the SLC/Peer
Tutoring Kiosk in C102.
26. Coaching in math is provided on a drop-in basis.
27. During an initial meeting, a discussion will occur in order to assist the Coach
in determining what the student's difficulties are and the coaching required.
28. In some cases, students may come to the coaching session to discuss an
assignment. The Coaches will not provide students with answers or directly
provide assistance in completing assignments.
29. Coaches will provide general coaching on how to approach an assignment by
reviewing core concepts such as discussing how to outline an essay or conduct
research.
30. In other cases, students will schedule coaching sessions to address more
general problems with a subject area. In these cases, the Coach may then talk to
the student further or review the core concepts in which they are having difficulty.
31. Student may meet with a Coach to review a marked assignment and review
the areas that require further practice. In these meetings, the Coaches will focus
on the areas which student struggled with in the assignment and will review the
underlying concepts with the student so that the problem can be avoided in the
future.
32. SLC Coaches may review the fundamentals of a subject area and provide a
refresher on previously taught concepts.
33. Some Coaches might suggest that a student return for further coaching.
34. When students require additional assistance after the complet ion of a
coaching session, Coaches may inform students of other resources, including peer
tutoring, the library or online resources.
35. In circumstances where Coaches determine that a student has additional
concerns, they may provide the student with information on other student support
resources. This can include circumstances where a student appears to have a
challenge with regard to their personal or social situation which is causing stress or
where the student has a learning disability. In such cases the Coach will refer the
student to the appropriate services at the College, such as the Counselling
Department or the Centre for Students with Disabilities. However, Coaches are not
trained to identify psychological problems or a learning disability. Their job does
not include making assessments in this regard.
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36. Although not required as part of their job, Coaches have on occasion offered
advice to students with respect to communicating with their Professors, for
instance to seek an extension for an assignment or to speak directly with a
Professor when they encounter issues. Coaches are not trained to identify these
types of problems nor are they asked to assist students in these areas.
37. The College has numerous areas where several different resource pamphle ts
describing the services that are available to students can be freely obtained.
Some of these pamphlets are available in the SLC and [were filed] as Exhibit 7.
38. SLC Coaches do not follow up with students after the student has attended a
session.
39. Pictures of the SLC [were filed] as Exhibit 8.
40. Except as may be described above, the Coaches employed in the SLC do
not:
a. Edit or correct course assignments prior to submission;
b. Create, deliver or introduce course content;
c. Conceptualize curriculum design;
d. Determine academic objectives to be attained in a course;
e. Ensure awareness of course objectives;
f. Teach new theory;
g. Perform formal evaluations on the progress of students to determine
whether their knowledge of course content is sufficient;
h. Grade or mark; or
i. Impart course content to students.
The relevant provisions of the Colleges Collective Bargaining Act are:
SCHEDULE 1
Full time academic staff bargaining unit
1. The full time academic staff bargaining unit includes all persons employed by
an employer as teachers, counsellors or librarians, but does not include,
(a) chairs, department heads or directors;
(b) persons above the rank of chair, department head or director;
(c) other persons employed in a managerial or confidential capacity within the
meaning of section 5 of this Schedule;
(d) teachers, counsellors and librarians who are included in the part time
academic staff bargaining unit;
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(e) a person who is a member of the architectural, dental, engineering, legal or
medical profession, entitled to practise in Ontario and employed in a professional
capacity; or
(f) a person employed outside Ontario.
Part time academic staff bargaining unit
2. (1) Subject to subsection (2), the part time academic staff bargaining unit
includes all persons employed by an employer as,
(a) teachers who teach for six hours or less per week;
(b) counsellors or librarians employed on a part time basis; and
(c) teachers, counsellors or librarians who are appointed for one or more
sessions and who are employed for not more than 12 months in any 24-month
period.
(2) The part time academic staff bargaining unit does not include,
(a) chairs, department heads or directors;
(b) persons above the rank of chair, department head or director;
(c) other persons employed in a managerial or confidential capacity within the
meaning of section 5 of this Schedule;
(d) a person who is a member of the architectural, dental, engineering, legal or
medical profession, entitled to practise in Ontario and employed in a professional
capacity; or
(e) a person employed outside Ontario.
Full time support staff bargaining unit
3. The full time support staff bargaining unit includes all persons employed by an
employer in positions or classifications in the office, clerical, technical, health
care, maintenance, building service, shipping, transportation, cafeteria and
nursery staff, but does not include,
(a) foremen or supervisors;
(b) persons above the rank of foreman or supervisor;
(c) persons employed in a confidential capacity in matters related to employee
relations or the formulation of a budget of a college or of a constituent campus of
a college, including persons employed in clerical, stenographic or secretarial
positions;
(d) other persons employed in a managerial or confidential capacity within the
meaning of section 5 of this Schedule;
(e) persons who are included in the part time support staff bargaining unit;
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(f) students employed in a co-operative educational training program undertaken
with a school, college or university;
(g) a graduate of a college during the period of 12 months immediately following
completion of a course of study or instruction at the college by the graduate if the
employment of the graduate is associated with a certification, registration or other
licensing requirement;
(h) a person who is a member of the architectural, dental, engineering, legal or
medical profession, entitled to practise in Ontario and employed in a professional
capacity; or
(i) a person employed outside Ontario.
Part time support staff bargaining unit
4. (1) Subject to subsection (2), the part time support staff bargaining unit
includes,
(a) all persons regularly employed by an employer for not more than 24 hours a
week in positions or classifications in the office, clerical, technical, health care,
maintenance, building service, shipping, transportation, cafeteria and nursery
staff; and
(b) all persons employed by an employer for a project of a non -recurring kind in
positions or classifications in the office, clerical, technical, health care,
maintenance, building service, shipping, transportation, cafeteria and nursery
staff.
(2) The part time support staff bargaining unit does not include,
(a) foremen or supervisors;
(b) persons above the rank of foreman or supervisor;
(c) persons employed in a confidential capacity in matters related to employee
relations or the formulation of a budget of a college or of a constituent campus of
a college, including persons employed in clerical, stenographic or secretarial
positions;
(d) other persons employed in a managerial or confidential capacity within the
meaning of section 5 of this Schedule;
(e) students employed in a co-operative educational training program undertaken
with a school, college or university;
(f) a graduate of a college during the period of 12 months imme diately following
completion of a course of study or instruction at the college by the graduate if the
employment of the graduate is associated with a certification, registration or other
licensing requirement;
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(g) a person who is a member of the architectural, dental, engineering, legal or
medical profession, entitled to practise in Ontario and employed in a professional
capacity; or
(h) a person employed outside Ontario.
The relevant provisions of the Collective Agreement are:
CLASSIFICATION DEFINITIONS FOR POSITIONS IN THE ACADEMIC
BARGAINING UNIT
(to be used in conjunction with the Job Classification
Plans for positions in the Academic Bargaining Unit)
CLASS DEFINITION
PROFESSOR
Under the direction of the senior academic officer of the College or designate, a
Professor is responsible for providing academic leadership and for developing an
effective learning environment for students. This includes:
a) The design/revision/updating of courses, including:
- consulting with program and course directors and other faculty members,
advisory committees, accrediting agencies, potential employers and students;
- defining course objectives and evaluating and validating these objectives;
- specifying or approving learning approaches, necessary resources, etc.;
- developing individualized instruction and multi-media presentations where
applicable;
- selecting or approving textbooks and learning materials.
b) The teaching of assigned courses, including:
- ensuring student awareness of course objectives, approach and evaluation
techniques;
- carrying out regularly scheduled instruction;
- tutoring and academic counselling of students;
- providing a learning environment which makes effective use of available
resources, work experience and field trips;
- evaluating student progress/achievement and assuming responsibility for the
overall assessment of the student's work within assigned courses.
c) The provision of academic leadership, including:
- providing guidance to Instructors relative to the Instructors' teaching
assignments;
- participating in the work of curriculum and other consultative committees as
requested.
In addition, the Professor may, from time to time, be called upon to contribute to
other areas ancillary to the role of Professor, such as student recruitment and
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selection, time-tabling, facility design, professional development, student
employment, and control of supplies and equipment.
CLASS DEFINITION
COUNSELLOR
A Counsellor is responsible for assisting students and potential students to
function effectively as learners and as individuals by helping them understand,
prevent or overcome personal, social or educational problems that may hinder
learning or their ability to cope with everyday living. The Counsellor's duties
include:
a) Developing and maintaining appropriate counselling programs.
b) Interviewing individuals, by appointment, to explore personal or social difficulties
or vocational/educational decision making, including:
- referring students as appropriate to proper professional help;
- facilitating discussion/dialogue between students, faculty and administration;
- participating in pre-admission interviewing and testing as required.
c) Group counselling as a non-instructional activity.
d) Testing and evaluation of individuals to assist them in their personal,
educational/vocational development.
e) Assisting administration, faculty and staff, in a consultative role in identifying
student problems, dealing with student problems, and relationship problems
among students.
f) Providing educational/vocational information to students or directing them to
available sources.
g) Participating in the orientation of new students to the College.
h) Teaching as assigned.
In addition, the Counsellor may, from time to time, be called upon to contribute to
other areas ancillary to the Counsellor's role, such as student recruitment and
selection, student employment, liaison with community service programs and
agencies, professional development and control of supplies and equipment.
CLASS DEFINITION
INSTRUCTOR
The Instructor classification applies to those teaching positions where the duties
and responsibilities of the incumbent are limited to that portion of the total
spectrum of academic activities related to the provision of instruction to assigned
groups of students through prepared courses of instruction and according to
prescribed instructional formats; and limited to instruction directed to the
acquisition of a manipulative skill or technique; and under the direction of a
Professor. Notwithstanding such prescription, the Instructor is responsible for and
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has the freedom to provide a learning environment which makes effective use of
the resources provided or identified, work experience, field trips, etc., and to select
suitable learning materials from those provided or identified to facilitate the
attainment by the students of the educational objectives of the assigned courses.
The Instructor's duties and responsibilities include:
- ensuring student awareness of course objectives, instructional approach, and
evaluation systems;
- carrying out regularly scheduled instruction according to the format prescribed for
the course, including as appropriate, classroom, laboratory, shop, field, seminar,
computer assisted, individualized learning, and other instructional techniques;
- tutoring and academic counselling of students in the assigned groups;
- evaluating student progress/achievement, assuming responsibility for the overall
assessment of the students' work within the assigned course, and maintaining
records as required;
- consulting with the Professors responsible for the courses of instruction on the
effectiveness of the instruction in attaining the stated program objectives.
In addition, the Instructor may, from time to time, be called upon to contribute to
other activities ancillary to the provision of instruction, such as procurement and
control of instructional supplies and maintenance and control of instructional
equipment.
The Submissions of the Parties
The Submissions of the Union
The Union asserts that the correct approach to this case should be to recognize that the
SLC Coaches are engaged in teaching or working as teachers and thereby fit within the
statutorily defined Academic bargaining unit. It was submitted that it makes “no sense”
to include the SLC Coaches within the Support Staff bargaining unit because they do
none of the functions set out in Schedule 1, Section 3 of the Act.
The Union placed strong reliance on Arbitrator MacDowell‟s decision in St. Lawrence
College and OPSEU, unreported, July 22, 2005. The Union argued that Arbitrator
MacDowell took the proper approach by recognizing the statutory definitions of
bargaining units in the College sector and holding that all employees employed as
teachers, counsellors or instructors should be included within the Academic bargaining
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unit. The Union argued that it should not have to establish that the SLC Coaches are
teaching academic courses in order to succeed in this case.
The Union acknowledged that many arbitrators have analyzed issues concerning the
scope of the bargaining unit by concentrating on the question of whether certain
positions fall within the Class Definitions contained in Schedule 1 of the Academic
Collective Agreement, citing Humber College and OPSEU, 1990 CarswellOnt 4408
(Knopf); Fanshawe College and OPSEU, [December 16, 2003] (Knopf); Fanshawe
College and OPSEU Local 110, Learning Strategist, [2005] (Mitchnick); Algonquin
College and OPSEU, [1989] CarswellOnt 4837, 16 CLAS 82 (Brown); Fanshawe
College and OPSEU 110, [2007] Re Classification (Starkman). However, the Union
pointed out that in all those cases the Union had argued that new positions fit within the
existing classifications. However, the Union is not seeking a similar ruling in this case.
Instead the Union simply asked this arbitrator to declare that the SLC Coach positions
should be considered to be in the Academic bargaining unit . The Union suggested that
the matter could then be remitted back to the parties to determine how the SLC
Coaches should be classified. The Union proposed that the parties could deal with this
locally or provincially. Failing agreement, it was said that they could refer the question
back to arbitration or resolve it in bargaining. The Union argued that any other
approach puts “the cart before the horse” by ignoring the statutory definitions of the
Academic bargaining unit.
The Union pointed out that the Agreed Facts demonstrate that the SLC Coaches
“teach”. Relying on the ordinary meaning and dictionary definitions of the word “teach”,
the Union submitted that the Coaches should be recognized as “giving systematic
information to a person about a subject or skill” or “enabling a person to do something
by instruction and training”.1 Further, it was pointed out that synonyms for the word
1 Canadian Oxford Dictionary, 2001
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„teach‟ include educate, instruct, tutor, coach and train.2 The Union argued that the SLC
Coaches‟ positions are essentially “academic” given the significant academic
requirements expected of applicants, the purpose of the roles and their responsibilities
to review assigned subject areas of curriculum, “refresh information previously taught”
and interact with the Professors. This was said to indicate that the Coaches are
“teachers” who “belong” in the Academic bargaining unit. While the Union did not ask
this arbitrator to find that the SLC Coaches are Professors, Counsellors or Instructors as
set out in the Class Definitions under the Collective Agreement, it was suggested that
the SLC Coaches‟ duties are analogous to and could “fit” well with those classifications.
On the “flip” side, the Union suggested that the Employer would be hard p ressed to be
able to explain why the SLC Coach positions should fall within the categories listed
under the Act for the Support Staff bargaining unit.
The Submissions of the Employer
The Employer stressed that the Agreed Facts reveal that this College was influenced by
the design of George Brown College‟s Tutoring and Learning Centre “Advisor” positions
and relied upon the arbitral jurisprudence when it placed the SLC Coaches in the
Support Staff bargaining unit. Acknowledging that this may have no legal significance,
the Employer suggested that the fact that OPSEU did not challenge the situation at
George Brown College suggests recognition that these types of duties fit comfortably
within the Support Staff Collective Agreement. It was suggested that to find otherwise
would be to “throw decades of jurisprudence into disarray.”
The Employer stressed that the SLC Coaches do not teach curriculum or credit courses,
they do not assist with assignments and are principally responsible for helping students
develop skills that they “should have already had before coming to Algonquin.” The
Coaches‟ role was said to be consistent with the “support” role undertaken by other
members of the Support Staff bargaining unit. The Employer argued that the proper
2 Oxford Canadian Thesaurus of Current English, 2006
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approach to this case should be to recognize that the Act defines the Academic
bargaining unit as including only those employed “as teachers, counsellors or
librarians”; not those who “teach.” Conceding that the SLC Coaches do “teach” in a
general sense, the Employer argued that the teaching duties are not sufficient to bring
them within the Academic bargaining unit. The Employer also relied on Arbitrator
MacDowell‟s decision in St. Lawrence College, supra, at page 66, wherein he declared
that the statutorily defined Academic bargaining unit covers employees employed “as
teachers”; not employees who are „employed to teach.‟ It was submitted that since the
Act does not define “teachers” or the classifications within each bargaining unit, the way
to determine whether someone falls within the Academic bargaining unit is to look at its
Class Definitions. It was stressed that the parties have defined the classifications that
fall under the authority of the Academic bargaining unit in their contract with its Class
Definitions in order to determine their appropriate levels of pay and responsibilities. It
was said that the jurisprudence that has evolved with respect to the scope of the
bargaining units has properly respected those Class Definitions by excluding positions
that are not consistent within those classifications.
The Employer also argued that the arbitral case law has long recognized that the act of
teaching does not provide automatic entry into the Academic bargaining unit. Reliance
was placed on the cases of George Brown College and OPSEU - 292F209 -
Classification [1993] (Mitchnick); Fanshawe College and OPSEU 110, [2007] Re
Classification (Starkman); Fanshawe College and OSPEU, Local 110 Re: Learning
Strategist, [2005] (Mitchnick); Niagara College and OPSEU 62 4201 (Cont 01-
Academic), [2007] (Tacon); Seneca College and OPSEU Local 560, Classification of
Instructor - School of Aviation #01C111, [2004] (P. Picher). Further, the Employer
argued that it has no obligation to justify why the SLC Coaches were placed under the
Support Staff bargaining unit because this arbitrator was appointed under the Academic
Collective Agreement, resulting in there being no jurisdiction or authority under the other
contract. In a nutshell, the Employer argued that the parties have determined what
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classifications fall within their Academic bargaining unit by way of their class definitions
and that this statutory bargaining unit cannot be expanded by an arbitrator.
The Employer stressed that Arbitrator Starkman‟s decision in Fanshawe College, supra,
is directly “on all fours” with the facts and circumstances of this case and should
therefore be followed. It was also said that it is important to maintain consistency in this
sector, citing Fanshawe College and OPSEU, Article 2-Preliminary [2006] (Brown).
Therefore, it was also suggested that the approach taken by other arbitrators ought to
be followed by only allowing a position to be considered within the Academic bargaining
unit if the Union can establish that the duties fall within one of the existing Class
Definitions.
The Employer closed its submissions by acknowledging that it is understandable that
people who are engaged in teaching and “pedagogic” endeavours want to be
considered to be part of the Academic bargaining unit. However, it was stressed that
the parties to this Collective Agreement have understood for many years that teaching
functions are not sufficient to bring someone within the scope of this contract.
Therefore, the Employer asked that the grievance be dismissed.
The Union’s Reply Submissions
The Union also relied on Schedule 1 of the Act, stressing that nothing within Section 3‟s
definition of the Support Staff bargaining unit covers the work of the SLC Coaches. The
Union stressed that while it is seeking a declaration that the Coaches are to be included
in the Academic bargaining unit, it is not asking for them to be given the status of
teachers or any other existing classification. It was said that the statute and the
MacDowell decision make it clear that any College employee not specifically excluded
by Schedule 1 must be included in one of the two bargaining units and that there is “no
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merit” in including the SLC Coaches in the Support Staff unit. Therefore, it was said
that they ought to be placed within the Academic bargaining unit.
In response to the Employer‟s suggestion that the Union‟s position would re-write
decades of jurisprudence in this sector, the Union pointed to the respect Mr. MacDowell
has within the arbitration community and his particular expertise with regard to matters
of jurisdictional and bargaining unit scope. It was said that following his approach would
simply be an affirmation of existing and applicable case law.
The Decision
Because of the importance of Arbitrator MacDowell‟s decision in St. Lawrence College,
supra, to both parties, it is useful to begin with it. That case involved a question of
whether Article 2‟s staffing provisions governed certain employees in the College‟s
Continuing Education division. Arbitrator MacDowell‟s learned and thorough analysis
with regard to the scope of the bargaining unit under the Act includes the following:
…. The “bargaining unit” is a creature of statute - not just the product of collective
bargaining - and the exclusion of “Continuing Education” (courses or employees)
from the collective agreement nowhere appears (explicitly at leas t) in either the
CCBA, or in Article 1.01 of the collective agreement. And once issues about “the
bargaining unit” are engaged, the statute comes into play - at least as part of the
context…….
The scheme of the CCBA3, read as a whole, creates a simple and symmetrical
equation of bargaining rights and bargaining responsibilities that pertain to two
statutorily defined bargaining units. It would be inconsistent with the scheme of
the Act for there to be any other bargaining unit to which the agreement might
relate……. Nor would it appear to be open to the parties to negotiate in respect of
any other bargaining unit; because they are confined in their collective negotiations
to the scheme, and the structure, prescribed by the CCBA . . .
3 Colleges Collective Bargaining Act
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The statute says that the “academic staff bargaining unit” encompasses all
“employees …. employed as “teachers, counsellors or librarians”, with10 specific
exceptions. The word “teacher” is not defined in the CCBA. Neither is the word
“academic staff”, except as a descriptive term, that is used with reference to a
bargaining unit that contains a grouping of “teachers, counsellors or librarians”.
By contrast, the support staff bargaining unit is composed of employees of the
college who are employed “in positions or classifications in the office, clerical,
technical, health care, maintenance, building service, shipping, transportation,
cafeteria and nursery staff” - also with certain stipulated exceptions. The support
staff definition is a bit more fulsome about describing the kinds of positions or
classification that its members occupy.
To be clear: in the case of the “academic bargaining unit”, the statute talks about
employees ….. employed as teachers - not employees who are employed to teach
academic courses . . . .
So long as an individual is “employed…. as a teacher” within the meaning of the
CCBA, then (if one just looks at the statute) s/he is “in” the statutorily defined
bargaining unit; and if s/he is “in” the statutorily defined bargaining unit, then s/he
is caught be the deemed recognition clause, and the collective agreement
necessarily “applies” to him/her.
That said, we think it is very important to distinguish between the scope of the
bargaining unit (i.e. who is “in” the bargaining unit - and therefore who the
collective agreement applies to), on the one hand, and the actual terms and
conditions of employment for particular employees within that bargaining unit, on
the other. The former [the scope of the bargaining unit] is determined by statute.
The latter [the substantive terms, applicable to particular bargaining unit
employees] depends upon what the parties have actually negotiated for the class
of employees under review.
[emphasis are contained in the original text]
It is interesting to note that both parties to the case at hand rely on this St. Lawrence
College case. The Union relies on it to assert that if someone is teaching, s/he falls
within the Academic bargaining unit. The Employer relies on this case to assert that
someone has to be employed “as a teacher” to fall within this bargaining unit. However,
it must also be noted that Arbitrator MacDowell examined the facts pertaining to what
the disputed positions were actually doing, found that they were engaged in “teaching
courses for academic credit” and declared that the work fell within the scope of the
Academic Collective Agreement because the employees were being employed “as
teachers.” On the basis of this analysis and the application of the appropriate case law,
19
Arbitrator MacDowell concluded that employees teaching credit courses in the
Continuing Education Division were covered by Article 2 of the Collective Agreement.
The other case that is critical to both parties‟ positions is the decision of Arbitrator
Starkman with respect to Fanshawe College, supra. That case involved employees
working in a Testing and Learning Centre who the Employer had classified as
Technologists under the Support Staff Collective Agreement. The Union grieved,
asking that they be recognized as Professors or Instructors within the Academic
bargaining unit. Arbitrator Starkman reviewed a great deal of arbitral case law, much of
which was also cited by the parties in this case. However, it does not appear that Mr.
MacDowell‟s St. Lawrence College decision was put before him. Arbitrator Starkman
concluded:
. . . . it is too broad a statement to say that persons who teach or instruct as the
word is defined in the dictionary or understood in its normative sense, are to be
automatically included in the academic bargaining unit provided that such
instruction comprises a significant component of the work being performed.…..
The Act provided that teachers are to be included in the academic bargaining unit.
The parties have, over considerable number of years, entered into successive
collective agreements which provide wage scales for Professors, Counsellors,
Librarians and and Instructors. Also included in the collective agreements have
been Class Definitions for Professors, Counsellors, Librarians and and Instructors.
These definitions enable the parties to assess the job functions of particular
individuals in order to determine whether they are in fact Professors, Counsellors,
Librarians and Instructors and entitled to be paid according to the established
wage grids for such positions. In other words the parties, in past collective
agreements, and in the collective agreement in effect at the time these grievances
were filed, have provided for which types of teaching duties were to be
compensated according to the agreed upon wage schedules. It may have been
possible for the parties to negotiate and agree upon wage schedules for other
teaching duties such as tutoring but they have not done so.
Arbitrator Starkman then looked at whether the “core functions” of the disput ed tutoring
positions at Fanshawe College were “substantially similar” to the core functions of the
jobs performed by Professors or Instructors. He noted that the Tutors were not
responsible for the delivery of pre-determined curriculum, for ensuring awareness of
20
course objectives or for providing leadership or evaluation of students, even though they
did provide some input. What the Tutors essentially did was to assist the students in
acquiring the skills and knowledge that would enable them to better un derstand the
course material being presented by a Professor. As a result, Arbitrator Starkman
concluded that the Tutors‟ functions were not “substantially similar” to those of a
Professor or an Instructor and that there was “no other language in the collective
agreement which suggests that it was the intention of the parties that such persons be
included in the academic bargaining unit.”
These two cases and the others cited by the parties can and must now be applied to the
facts of the case at hand. To begin, the analysis of Arbitrator MacDowell cannot be
disregarded. He has properly set out the importance of the statutory scheme,
recognizing that the Legislature has created two distinct bargaining units in the College
sector, with specific exclusions, but resulting in all other positions having to fall within
one of the two distinct units. While Arbitrator MacDowell did declare that anyone
employed “as a teacher” falls within the academic bargaining unit, he also pointed out
that being employed to “teach” is a different concept. Then, when applying this
statutory scheme to the evidence before him, he relied upon the fact that the disputed
positions involved people referred to by the Employer as “teachers” and who were
engaged to teach prescribed academic credit courses. That provided him with the
foundation to conclude that their work was covered by Article 2 of the Collective
Agreement. Accordingly, while his analysis may have started at a point before where
most other arbitrators begin, he ultimately had to determine whether the job functions fit
within the existing Class Definitions.
The Union has argued that other arbitrators put the “cart before the horse” by looking to
see whether a certain position fits within an Academic Class Definition instead of asking
first whether the position fits within the delineations set out in Schedule 1 of the Statute.
Perhaps there is some validity in the suggestion that some of the case law has skipped
21
over the first step of the analysis. However, that does not mean that the cases have
reached the wrong conclusions. The problem with the Union‟s argument is that it is
premised on the notion that if an employee is engaged in teaching, s/he must therefore
be considered to fall within the Academic bargaining unit. That is not what the Act
prescribes. Neither the Act nor the case law supports the Union‟s premise. Arbitrator
MacDowell founded his conclusions in the St. Lawrence College case on the fact that
the disputed positions were held by people engaged to teach academic credit courses.
Therefore they were engaged as “teachers” and fell within both the statutory scheme of
the Academic bargaining unit and the class definition in the Collective Agreement.
Therefore, whether one adopts the application of Arbitrator MacDowell‟s thorough
statutory approach or whether one adopts the more functional approach of looking at
Class Definitions, the cases ultimately turn on what the people are doing and whether
they can be seen to be employed as teachers, instructors, counsellors or librarians.
The fact that they may teach, instruct or counsel is important, but that does not
determine the outcome of a grievance that has been filed to determine in which
bargaining unit they belong. Accordingly, the essential question that must be addressed
is whether a person is employed as a teacher (or an instructor or a counsellor), not
whether they are employed to teach.
Neither the Act nor the Collective Agreement define “teacher”. Nor does the Act define
the other classifications within the Academic bargaining unit. However, the parties have
defined and valued the classifications in their Collective Agreement with its wage scales
and Class Definitions. Further, the parties have set out the classifications that they
consider to be covered by the Collective Agreement in a section titled “Classification
Definitions for Positions in the Academic Bargaining Unit”. To ignore those definitions
and specified positions would be to ignore years of sophisticated and intense collective
bargaining and the fact that these parties are well able to adapt their Collective
Agreements to meet the evolving needs of this sector. Those needs would include
determining the proper classification of a new position or the proper plac ement of a new
position into one of the bargaining units. The scope of a Collective Agreement is not
22
etched in stone. It is always possible for the parties to negotiate and agree upon wage
schedules for other “teaching duties.” To date, the Coaching or Tutoring positions have
not been included. That is not to say that a job title on its own will determine where a
position fits, nor could a College attempt to circumvent the Act or the Collective
Agreement by artificially placing someone with a core function of a teacher in the
Support Staff bargaining unit. As with all arbitral scrutiny, the actual facts of the
situation, the functions the person performs and the statutory context are what must
govern. As Arbitrator Mitchnick said in the 2005 Fanshawe College case, supra, [at p.
28]: “T he focus must be on the function, rather than the label”.
This brings us to the facts of this case. The Agreed Facts set out the duties and the
responsibilities of the SLC Coaches. These Coaches perform an important rol e. They
help the students succeed. Further, they are required to have significant academic
credentials with specialized university degrees and related work experience. They are
considered as having “subject matter expertise” and are required to “review the
fundamentals of their assigned subject area.” They provide “refresher” information to
the students. They give guidance about how to approach an assignment by reviewing
core concepts or addressing general problems. While the Coaches do not provide
answers or assistance in completing assignments, they may review marked
assignments to determine areas that require further attention. The Coaches can also
refer the students to other resources and confer with the applicable professor. The
Agreed Facts set out the duties more specifically, but suffice to say the Coaches
provide assistance and support to students requiring additional help in their studies. It
cannot be denied that this work does involve some “teaching” in the ordinary sense of
the word. The Coaches are imparting skills and knowledge and giving assistance with
regard to learning strategies. However, the fact that the words teach, coach, instruct
and tutor are synonyms in general English usage does not have great significance in
the context of a Collective Agreement that defines some derivatives of these terms.
Further, the terms cannot be considered as substitutes for one other in this specialized
23
sector where the different words are known to signify different responsibilities and
status.
Nevertheless, there is a real attraction to the Union‟s new and f ocused approach to this
case. For the first time, the Union has not asked an arbitrator to recognize a new
position as falling within one of the existing Class Definitions. Instead, the Union is
essentially saying that the teaching aspects of the Coaches‟ duties compel acceptance
into the Academic Unit because they do not fit within the classifications listed in Section
3 of Schedule 1 for the Support Staff. In other words, the Union is saying that the
Coaches are Academic, not Support Staff, because their work is more “academic” in
nature and less akin to the clerical or technical positions within the Support bargaining
unit. If I were to follow the Union‟s suggestion and declare that th e teaching aspect of
the Coaches‟ duties bring them within the Academic bargaining unit, this would ignore
the fact that teaching is not enough to bring a position within this bargaining unit. To fit
within the Academic bargaining unit, the statute requires the persons to be “employed
as” teachers, instructors, counsellors or librarians. However, the Union does not assert
that the SLC Coaches are employed as teachers, instructors or counsellors, (librarians
being of no relevance to this case). Further, these parties and arbitrators in this sector
have long recognized that there are overlaps in the duties carried out by the members
of the Academic and Support Staff. After all, both units are dedicated to the furthering
of learning. As noted in Niagara College, supra, quoting from Fanshawe College v.
OPSEU, Pommer Grievance [1991] (Brent):
Because a legitimate function of support staff is to support the work of academics,
it is inevitable that at times members of both groups may quite properly be doing
exactly the same thing without in any way performing the core function of each
other‟s job.
Further, quoting from Fanshawe College v. OPSEU, Vinet Grievance [1990] (Brent):
It must be remembered that classifications are not watertight compartments, and
in any situations there are bound to be some overlapping functions. The mere
presence of overlap in and of itself does not mean that there is any improper
classification or work assignment.
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Accordingly, the facts of this case have to be analyzed in relatio n to functions of the
position and the extent to which the duties are of an academic or teaching nature; See
Niagara College, supra, at p. 11. On the basis of the Agreed Facts, it must be
concluded that the SLC Coaches do not deliver or teach assigned courses, they do not
teach theory, they do not evaluate, and they are not responsible for ensuring awareness
of course objectives. Further, they have no responsibility for curriculum, evaluations or
imparting course content to the students. Accordingly, the facts do not support a finding
that the duties of a Coach are in substance a “teaching” job within the meaning of this
Collective Agreement or the Act.
The Union has not taken the position that SLC Coaches should be classified as
Teachers, Instructors or Counsellors. The Union essentially submits that the SLC
Coaches fit more properly in the Academic, rather than the Support Staff bargaining
unit. But cases such as Mr. Starkman‟s decision in St. Lawrence College and Ms.
Tacon‟s decision in Niagara College, supra, demonstrate that even though employees
hold academic credentials, special skills and provide tutoring assistance to students,
this is not sufficient to draw them into the Academic bargaining unit.
While it is not an arbitrator‟s function to give organizational or even labour relations
advice, this decision cannot conclude without making some obvious observations. The
people who perform the work of the SLC Coaches have significant educational
credentials and experience and perform important work supporting students who need
additional assistance in order to succeed. This role does have academic and “teaching”
components that are worthy of recognition. To date, the parties have been able to
negotiate appropriate wage scales for such positions within the Support Staff bargaining
unit. While that is not a factor that determines the outcome of this case, it does indicate
that the tutoring or coaching functions have been accommodated and encompassed in
the Support Staff bargaining unit. That is consistent with the notion that the Coaches
25
are supporting the work of the Academic bargaining unit. However, the nature and
methodology of “teaching” is always evolving; so too may the appreciation for duties
and the role of the Coaches. This decision is based on the facts presented and the
Collective Agreement language that applies at this point in time. The parties have the
opportunity to allow their Collective Agreements and Class Definitions to evolve and
expand with the changes that may occur in this sector. As Mr. Starkman said in
Fanshawe College, “It may have been possible for the parties to negotiate and agree
upon wage schedules for other teaching duties such as tutoring but they have not done
so.” That does not preclude them from doing so in the future.
As a result of the conclusions reached above, the grievances are dismissed .
Dated at Toronto this 29th day of June, 2015
____________________________
Paula Knopf - Arbitrator