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HomeMy WebLinkAboutUnion 88-12-23Concerning an arbitration Ltoq Fanshawe College and Ontario Public Service Employees Union Union Grievance, definition of "teacher", 87V30 Board of Arbitration J. W. Samuels, Chairman R. St. Onge, College Nominee J. D. McManus, Union Nominee For the Parties Union I. Roland, Counsel P. Musson, President, Local 110 W. Lycett J. Phillips, President, Local 109 G. Fordyce, Chief Steward, Local 110 College B. Bowlby, Counsel G. Lancaster, Director, Co-op Education and Community Relations P. Myers, Director, Human Resources Hearings in London, May 26 and October 27, 1988 counsellors and Ilbradans. all as more particularly set out In Appendix I hereto save and except Chairmen. Department Heads and Directors, persons above the rank of Chairman, Department Head or Director, persons covered by the Memorandum of Agreement with the Ontario Public Service Employees Union in the support staff bargaining unit. and other persons excluded by the legislation and teachers, counsellors and librarians employed on a pert-time or sessional basis. NOTE A: "Part-time in this context shall Include persons who teach six hours par weak or le~." NOTE B: "Sessional in this Context shall mean an appointment of not mom then twelve months duration in any twenty-four month pe~od," This language mirrors Schedule 1 in the Colleges Collective Bargaining Act, which sets out who will be in the'academic bargaining unit. It is important that Article 1.01 'of the collective agreement is in accord with the legislation. 4. There is a "difference" between the parties concerning the. application and administration of Article 1.01 of their collective agreement. 5. Therefore, pursuant to section 11.03 of the collective agreement, we have jurisdiction. 6. Is this contrary to the legislation? The collective agreement is our source of authority unless it is contrary to the legislation'. In our view, our jurisdiction under the collective agreement is not contrary to the legislation for the following reasons: a. The jurisdiction of the board of arbitration under Article 11.03 of the collective agreement is consistent with the power of a board of arbitration under section 46(2) of the Colleges Collective Bargaining Act. b. Our jurisdiction is not contrary to section 81 of the Act, which provides: 81. If, in the course of bargaining for an'agreement or w~eta~r ., · l~rsp, n during the period of operation of an agreement, a question emvso~ arises as to whether a person is an employee, including a question as to whether a person employed as a chairman, department head. direCtoL foreman or supervisor is employed in a managerial or confidential capacity pursuant to clause I (/) and the Schedules. the question may be referred to' the Ontario 1 The Union filed a grievance claiming that Ms. W. Lycett should have been considered a member of the academic bargaining unit since her hiring in 1984. The remedy sought was recognition of her status as an academic employee, dues owing to the Union, and compensation to Ms. Lycett. From the time of her hire to the time of the grievance, Ms. Lycett had been a workshop coach in the Work Experience Program of Futures, and had been classified 'as a support serVices officer within the support services bargaining unit. By the time we met for our second day of hearing, the job she was doing no longer existed at the College, and Ms. Lycett had bumped into another support services position. At the outset of our hearing, the College raised a preliminary objection concerning our jurisdiction. It was argued that, pursuant to section 81 of the Colleges Collective Bargaining Act, the proper forum for this claim should be the Ontario Labour Relations Board. We ruled that we had jurisdiction for the following reasons: 1. Our authority comes from the collective agreement under which the grievance was filed. This is the collective agreement for the academic bargaining unit. 2. Pursuant to Article 11.03 of the collective agreement, we may hear and determine any differences between the parties concerning the interpretation, application and administration of the collective agreement. This power is cOnsistent with the power given to a board of arbitration under section' 46(2) of the Colleges Collective Bargaining Act, which provides a deemed arbitration provision in the collective agreement, if the parties fail to put such a provision in the agreement themselves. 3. Article 1.01 of the collective agreement sets out the' definition of who is in the bargaining unit. It reads: 1.01 The Union Is recognized as the exclusive collective bargaln.l~g agenoy for all academic employees of the OOlleges engage~ as teachers (Including teachers of P.hy~!c~l. Education), I : : ll l. : ' l. ' ' ~; :'ii::,: !.' 'l ·: · Labour Relations Board and its .decision thereon is final and ' binding for all purposes. The issue for the Ontario Labour Relations Board under this section is whether a person is an "employee", and this is different from 'the issue before us. In our case, the parties agree that 'Ms. Lycett is an "employee", but differ concerning the appropriate bargaining unit. FurthermOre, even if we were faced with the same issue which is the subject of section 81, the reference to the Ontario Labour Relations Board is not mandatory. The section says "may", and this means that the Board is a possible decision-maker. The Act itself sets up two decision-makers---the Ontario Labour Relations Board (section 81), and a board of arbitration (section 46(2)). This case involves a matter which is within the authority of a board of arbitration. At the close of our hearings, the College raised two further preliminary objections---that, because Ms. Lycett's job had now been abolished, the whole matter was moot; and, secondly, that the Union could not seek'compensation for Ms. Lycett because such a claim is not a proper subject for a Union grievance. In our view, the matter is not moot. The Union's grievance seeks, among other things, the dues which ought to have been paid to the Union if 'Ms.. Lycett was an academic employee during the period she was a workshop coach. There is still a real issue before us, and a real remedy is being sought. With respect to the Union's claim for compensation for Ms. Lycett, Article 11.10 of the collective agreement says that a Union grievance "shall not include any matter upon which an employee would be personally entitled to grieve". In our view, the College is Correct that Ms. Lycett herself could have grieved if she felt that she was owed anything by the College or if she was of the view that she was not given her proper status. If we fmd that Ms. ~Lycett ought to have been considered an' academic employee during the period she was a.workshop coach, we will confine our remedy to the Union's interest alone. Our position on this is strengthened by the fact that, at our hearing, Ms. Lycett made it clear that this was not her grievance, and that the Union alone was grieving. Turning to the merits of the Union's grievance. Ms. Lycett was hired as the training coach in the Work Experience Program of Futures. Futures is a program established by the Ontario Ministry of Skills Development and. offered through the community colleges. It is the successor to the Ontario Career Action Program ("OCAP"). Its purpose is to help hard-to-employ youth fred employment. There are two branches of this program. For severely· disadvantaged youth (lack of education, behavioural 'or attitudinal problems, etc.), there is Pre-employment Preparation (PEP), which involves sixteen weeks of intensive training in basic mathematics, English, and other subjects, done by full-time teaching masters. For youth who have the basic employment requirements, but who need help in job search skills, there is the Work Experience Program (WEP), which involves a four-day workshop of fifteen hours devoted to self-assessment (to find a suitable target job), resum6 writing, job search strategies, job interview techniques, keeping a job, and-safety on the job. Ms. Lycett did the WEP workshops. She lectured to the trainees. She prepared and handed out materials covering the subjects inVolved during the four days~ She gave the trainees practice in resum6 writing, preparing job applications, and undergoing a job interview. During the four days, each trainee would do a self-assessment. She would offer one-on-one assistance where needed. And at the end of the workshop, she would dO an evaluati0~ ?i':i. form on each trainee, judging the person's attitude, behaViour, grooming,, i. task-completion, and the extent to Which the trainee met Ms. Lycett's. expectations. On the form, Ms. Lycett would say whether or not she felt that the trainee was ready to go out and fred a job. If she felt that the trainee was not ready, then she might recommend that the trainee go through the WEP workshop once again, or that the trainee go through Pre-employment Preparation. The issue for us is whether Ms. Lycett was an "academic employee", whether she was a "teacher", within the meaning of these words in Article 1.01 of the collective agreement. These words have never been del'reed precisely, and it is unlikely that they could be so defined. In an unreported decision of the Ontario Labour Relations Board, in a case involving the same parties as appear now before us (OLRB f'de 1668- 83-M, decision of R. Egan, dated September 19, 1984), the Board .determined the status of a Co-op Liaison Officer, part of whose job was to' 'give workshops which were similar to the ones Ms. Lycett gave. With respect to these workshops, the Board said (in the middle of page 6): The nature of the advice given is related to the techniques of job seeking and placement rather than to the academic matters dealt with by teachers, counsellors and librarians. The Board did not attempt to define "academic matters", but said simply that the workshops did not deal with such matters. Some guidance may be had by .looking at the class definitions of teachers in the Classification Plans agreed between the Ontario Council of Regents for COlleges of Applied Arts and Technology and the Union. -Teachers are divided into two categories---Teaching Masters and Instructors. The definiti°ns for these two categories are as follows: TEACHING MASTER Under the direction of the senior academic officer of the College or his designate, a Teaching Master is responsible for providing-academic leadership and for developing an effective learning environment for 'students. This includes: a) The designlrevisionlur~dating of courses, including: · consulting with program and course directors and other faculty members, advisory committees, accrediting agen- cies, 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, ap- proach 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 Instruc- tots' teaching assignments; · participating in the work of curriculum and other consults- tire committees as requested. In addition, the Teaching Master may from time to time, be called upon to contribute to other areas ancillary to the Teach. lng Master role, such as student recruitment and selection, time-tabling, facility design, professional development, student employment, and control of supplies and equipment. ' 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 teaching master. Not- withstanding such prescription, the iNSTRUCTOR is responsi- ble for and has the freedom to provide a learning environment which makes effective use of the resources provided or Identi- fied, 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: · e~suri.ng student awareness of course objectives, Instruc- tional approach, and evaluation systems; · carrying out regularly scheduled Instruction according to the format prescribed for the course, including as appro- prime classroom, laboratory, shop, field, seminar, compu- ter. assisted, Individualized learning, and other Instructional techniques; · tutoring and academic counselling of students in .the · assigned groups; · evaluating student progresslacnleVement, assuming responsibility for the overall assessment of the students' work within the assigned course, and maintaining records as required; · consulting with the Teacl~lng Masters responsible for the courses of Instruction on the effectiveness of the Instruc- tion 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 pro- vision of instruction, such as procurement and control of structlonal supplies and maintenance and control of Instruc- tional equipment. The collective agreement speaks of the "teacher" as an "academic employee". This means that a "teacher" is engaged in an "academic" activity. In other words, the definition of "teacher" involves a consideration of both the type of conduct engaged in (organization of material, preparation 'of material, imparting information, evaluation of performance) and the subject-matter over which this conduct is exercised. The subject-matter ' must be "academic". It is not possible to define precisely the dividing line between an "academic" course and a body of information which is less than "academic". At the most, one can define "academic" in a conceptual fashion. "Academic" subject-matter involves a certain degree of breadth and complexity. The word "academic" comes from "academy". As the Oxford English Dictionary tells us, the original "Academy" was a ·garden near Athens where Plato taught. From this developed the general meaning of "A place where the arts and sciences are taught; an institution for the Study of' higher learning". Obviously, we must interpret the word "academic.. in the collective agreement within the community college context. ThUs, to be "academic", a course or program of study must involve Sufficient breadthl and complexitYl having regard t° the general range of subject-matter in the " '... ',- courses offCi~ed'Within_ college. A person is not a "teacher" if, for example, her sole function is to inform people about the physical layout of a college campus. This person may organize maps of the campus, or Prepare such maps herself, she 'may sit in a booth handing out maps and giving people directions, and may go so far as to ask various questions to ensure that the visitor knows where to go. In other words, she would organize and prepare material, impart information, and evaluate performance. But this job could not be characterized as "teaching", because the subject-matter of the exercise is clearly not "academic". In our view, it is here that Ms. Lycett's work fell short. Though Ms. Lycett did engage in the physical activities done by a "teacher" (organization and preparation of material, imparting'information, evaluation of performance), the subject-matter of her workshops did not involve sufficient breadth or complexity to be Characterized as "academic". She helped the trainees self-assess their interests and abilities by administering various tests. She gave the trainees information about job opportunities. She helped the · trainees prepare resum6s. She brushed up their skills in applying for jobs and handling job interviews. She discussed job safety and how to keep a job. But all of this together was of limited compass in terms of breadth and complexity. She covered it in fifteen hours. Ms. P. Musson, the President of the Local Union for academic employees, testified concerning a program she was involved in some years ago, where she taught "career counseling", which had many components similar to the workshops offered by Ms. Lycett. But Ms. Musson's course ran for 60 hours per student. Clearly, Ms. Musson's coUrSe had much greater breadth than Ms. Lyeett's workshops. In sum, in our view, Ms. Lycett was not engaged in "academic'': activitY, and therefore she was not an "academic employee''. For these reasons, the grievance is dismissed. Done at London, Ontario, this 2g,.d day of 1~,~.... ~.~ , 1988. R. St. Onge, College Nominee J. D. McManus,