HomeMy WebLinkAboutUnion 05-06-24 IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(the "Employer")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Local 110
(the "Union")
Re: Learning Strategist Grievances
Before: M.G. Mitchnick - Chair
Jon McManus - Union Nominee
Bill Trimble - College Nominee
Appearances:
For the Union: James K. A. Hayes - Counsel
Paddy Musson - Local President
For the College: Robert J. Atkinson- Counsel
Sheila Wilson - Staff Relations Consultant
Lois Wey Manager, Counselling & Student Life
Hearings held in London, Ontario on May 7 and 10, October 21 and 22,
November 17, 2004; January 31 and February 1, 2005.
AWARD
These proceedings deal with two Union Policy grievances filed by Local 110, the
"Academic" Local at Fanshawe. The grievances relate to postings for the full-time
position of "Learning Strategist" in November 2002 and June 2003 respectively. The
Union in both grievances seeks a declaration that the position should have been posted in
the Academic Unit, rather than the Support Staff Unit. The November grievance
specifically seeks back dues as well, and a direction that the position be re-posted. The
two successful applicants and incumbents, Rick Madzia and Maureen McGauley, were
given notice by Local 110 of their right to be present and participate. While both were
present throughout, they participated only as witnesses called on behalf of Local 110.
While government support for the Learning Disabled became more prominent in
the mid-90's, Fanshawe has had a Learning Strategist position in its Counselling
Department since 1990. That position was placed by the College at that time in the
Support Unit, without challenge, and the College made clear in opening that it is its view
that there has been absolutely no material change in the Learning Strategist's duties since
that time. The College urges the board to find that that history or practice informs as to
the intent or understanding of the parties concerning this position, and as well provides
grounds for an estoppel argument if necessary.
In the mid-90's the provincial government announced funding for pilot projects to
assess the value of various enhanced services for students who have been identified as
"Learning Disabled". As Fanshawe was already one of the front-runners in the field, it
was chosen as one of five colleges to host a pilot project. At Fanshawe it was termed the
Millennium Project, and focused all of the resources geared to assisting the learning
disabled in a separate facility. Frank Walsh, a Learning Disability Specialist in the
Disability Services Division of the Counselling Department, came over to act as Manager
o f the Project. Included in the staffing by the College were 3 Learning Disability
Specialists (classified as Academic "Counsellors") and one Learning Strategist, as before,
classified as "Support". The "Learning Strategist" position contemplated by the College
at that time was to incorporate the instruction in both learning strategies and technical or
"assistive" devices into one position, and the College's application for funding (written
by Mr. Walsh and Shelley Reynolds, another Learning Disability Specialist) described
the proposed position in these terms:
Provides instruction in compensatory learning strategies, study skills, use of
technical aids. Helps students apply strategies to immediate academic demands.
The pilot projects ran from 1998 to the spring of 2002. Based on their success,
the government announced funding on an ongoing basis for the provision of such services
for the learning disabled, called the Enhanced Services Fund. On the role of the
Learning Strategist in the overall provision of enhanced services, the government's
"Backgrounder" set out the following:
Learning Strategists (LS)
The value of learning strategy instruction and coaching has been well
established within the LOTF pilot projects. The role of learning strategist
is pivotal in helping students to understand their learning disabilities, to
assess their capacity to use learning strategies and to apply such strategies
to better actualize their academic abilities. A learning strategist who works
with students with specific learning disabilities should be able to
demonstrate skills and kmowledge in the following areas:
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IGnowledge and understanding of learning disabilities and their impact on
how students can learn to function effectively and efficiently in the post-
secondary educational sector.
The ability to interpret and explain LD assessments to the students.
Communication with students and with a variety of internal contacts
including other student services staff and faculty members.
Coaching and giving feedback: being able to influence students to consider,
learn, apply and evaluate learning strategies.
Innovative thinking: developing specific variations on broad strategies to
respond to unique student strengths and needs and varying classroom
demands.
Problem-solving: being able to respond flexibly to difficulties that students
encounter in applying learning strategies.
The skills of LD specific counselling to deal with students' reactions to
negative learning experiences, feelings such as helplessness, defensiveness,
anxiety, low self-esteem and an initial lack of self advocacy skills.
The ability to focus on results: keeping the outcome in mind, i.e., increased
efficiency in learning for students with learning disabilities.
Personal sensitivity: recognizing student strengths and limitations and
responding to those with empathy and adaptability.
It is therefore anticipated that this fund will enable institutions to hire
learning strategists who demonstrate these competencies and who will
deliver the requisite specific services, based on the institution's assessment
of their students' needs for enhanced services and supplementing learning
strategy services already provided ...
The reference to "the skills of LD specific counselling" is obviously of some note, and
will be discussed further below. Again, the initial contemplation at Fanshawe was that
this would be a dual position, and the requirements for the "Assistive Technologist"
position are set out in the "Backgrounder" as follows:
Assistive Technologist (AT)
The increasing availability and successful use of assistive technology
suitable to individuals studying in the post-secondary sector makes this one
of the more productive and requested academic accommodations for those
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with LD. LOTF's research has shown that the benefit of such services
without the support of a knowledgeable technologist is minimal.
Such a professional should be able to demonstrate the following skills and
knowledge:
Technical expertise with a variety of software and hardware, competence to
demonstrate these to students with LD in user-friendly ways and a commitment to
maintaining that expertise as the technology changes.
A network of contacts within the vendor industry, in order to remain
current with trends in the assistive technology field, including new computer
applications and new ways to apply assistive technology in educational settings.
Communication: the ability to convey directions, concepts and applications
to students, colleagues and faculty members.
Problem-solving: being able to adapt to individual student strengths,
limitations and aptitude in using assistive technology.
Adaptability: being able to respond to differing demands in the academic
setting and integrating the technology into and with the material taught.
Coaching and giving feedback: being able to influence and encourage
students in learning to use assistive technology with success and to give
constructive feedback in the learning process.
Information seeking: constantly seeking alternatives for students.
A thorough understanding of learning disabilities and the way in which
technology can assist students with LD.
It is not disputed that the Assistive or Adaptive Technologist position, which currently
has two full-time incumbents operating a Lab at Fanshawe College as well, is properly
classified as a Support staff position (in the "Technologist" family).
The board also has before it the Report by Fanshawe to the Ministry on its own
Millennium Pilot Project. While we recognize that its chief author, Frank Walsh, is, on
an ongoing basis, a member of the Counselling staff and thus of the Academic bargaining
unit, Mr. Walsh presented the Report on behalf of the College as the Project's Manager,
arid the overall Manager of Counselling Services at the time, Grant Meadweil, we note
was part of the reporting team as well. About the Learning Strategist the Report
indicates:
The individual instruction provided by the Learning Strategist in the
Millennium Centre was intended to help students develop greater academic
success and independence through the guided use of metacognitive
activities. Both staff members who worked in the role of Learning
Strategist during the Millennium Project had teaching qualifications as
well as extensive experience with adults with learning disabilities. The
Learning Strategist also needed to have experience with assistive
technology of benefit to students with learning disabilities and a
fundamental knowledge of psycho-educational assessments so that report
recommendations could be translated into practice learning strategies.
In each year of the pilot project, approximately 50 students met with the
Learning Strategist to work on an individualized strategies plan.
Although other delivery models were considered, such as group strategies
instruction, the most effective means of providing this support was found to
be through individual, highly structured sessions spanning a period of
weeks. It was important that metacognitive strategies be modelled and
practiced within the context of the student's own program at the College,
using texts and materials from the same program, and this required
individual sessions.
A great deal of preparatory work was required in the role of Learning
Strategist, so that the individual needs of students in a wide variety of
Fanshawe College programs could be met. Collaboration with other
Project staff, particularly the Technologist and LD Specialist assigned to a
particular student, was also critical to the success of this component.
The Report then continued:
The Learning Strategist role evolved into a position that had some overlap with
functions of the LD Specialist, including the frequent need to respond to students'
emotional and social difficulties when these were having an impact on learning.
In fact, depending on the skills and qualifications of other learning disabilities
staff available to students in a post-secondary setting, the Learning St~rategist
position could be a specifically trained counsellor rather than support position
considering the nature of the work.
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The Learning Strategist in the Milennium Centre was a co-facilitator of the student
self-advocacy and social skills groups, working with LD Specialists to help
students identify the need for, and to develop skills in these areas.
To work effectively in support of students, the Learning Strategist also had to have
considerable contact with professors at the College. This may be another reason
to designate the Learning Strategist as a faculty rather than support position, again
depending on what other learning disability services staff are available in the
setting.
T'hat is not the route that the College chose to pursue in its funding application, however;
rather, it continued to separate out the role of the Learning Strategist as a (lower-paid)
Support unit position, and applied for additional funding for a Learning Disabilities
Counsellor as well. The letter from the College's President, Mr. Rundle, accompanying
the application read (on this point):
We are applying for three enhanced service positions that would greatly
benefit our students with learning disabilities; Learning Strategist (support
staff); Assistive Technologist (support staff); and Learning Disabilities
Counsellor. Your communications have indicated that only the largest
colleges would be considered for three positions. We are not sure what
criteria you will use to measure this but hope that you will consider the fact
that we are the sixth largest college in the province based on full-time
enrolments and the largest college in our region.
In considering what positions to apply for, we felt that it would be more
efficient for us to delineate the roles of counsellor and learning strategist
into two positions. Having the learning strategist position as support staff
has worked well for us during the project and we would like to continue
this mOdel. Without the counsellor position, however, we will be unable to
meet the demand for the counselling component of enhanced services for
our learning disabilities students...
The application notes as well that the addition of this further Counsellor position "will
allow the College to better meet the increased demand for such services realized during
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the past five years". However, the College was not successful in getting that
complementary Counsellor position; only the Learning Strategist and the Adaptive
Technologist position were approved. On the question of the evolving "overlap"
between the "Learning Disabilities Counsellor" and the "Learning Strategist" position (as
identified in the College's Millennium report), it is interesting to note some of the
similarities in the funding application's description of the two positions:
A) The Learnine Strateeist will be able to demonstrate skills and knowledge in the
following areas:
Knowledge of learning disabilities and their impact on how students can
learn to function effectively and efficiently in the post-secondary setting
Ability to translate assessment report recommendations into practical
strategies for student success
Ability to communicate effectively with students and with a wide variety of
college contacts including faculty members and other students and with a wide
variety of college contacts including faculty members and other student services
personnel
Ability to assist students through demonstrating, coaching and advising in
the applied use of learning strategies
Ability to use innovative approaches to problem-solving when helping
students learn to apply learning strategies
Skills in the presentation of professional development activities for faculty
members and other College staff to help generalize the use of metacognitive
strategies in various academic settings
Ability to assist with the collection and analysis of evaluation data
C) The Learnina Disabilities Counsellor will be able to demonstrate skills and
knowledge in the following areas:
A thorough understanding of the appropriate use of individual assessment
tools for the evaluation of adult students with learning disabilities
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Ability to interpret psychological and educational assessment reports and
explain these effectively to students with a wide variety of learning needs
The ability to translate assessment findings and recommendations into
practical educational strategies and accommodations to increase student success
Counselling skills to help students with learning disabilities become better
self-advocates and to develop greater independence in managing their own post-
secondary education
Knowledge of other College services and community agencies that can help
students with a variety of social, educational and vocational needs
The ability to counsel students in the development of social-emotional
skills as they relate to understanding their own needs and the interpersonal needs
of others
The ability to act as an effective consultant to faculty members and to
collaboratively support students with learning disabilities
A major distinguishing characteristic for the LD Counsellor, as can be seen in its primary
bullet, is the ability to do assessment and diagnosis. However, that is a regulated act, and
it is common ground that even amongst the "Counsellors" at the College, there are only
two individuals who can actually sign off in this role: Mr. Walsh and Mr. McKeown.
Beyond that, a notable difference between the two competency descriptions is that the
College's description of the Learning Strategist job (in contrast, for example, to the Task
Force's description) does not use the specific word "counselling". That term is
obviously a loaded one in the context of the present dispute, and the significance of such
art omission, in the job documents for the position as well, will be discussed as the job
documents are examined below. Suffice it to say that the College continued in its view
that the Learning Strategist at Fanshawe could, as it historically had been, be considered a
"Support" position, and has continued to treat it as such. In October of 2002, Local
11 O's President, Paddy Musson, noted some half-time teaching hours on a timetable for
Mr. Madzia, and she inquired of him what was composing the remainder of his hours.
From that she learned that he was performing the Learning Strategist job half-t/me, and
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fkom his account of it, she was of the view that it ought to fall within the Academic
b~argaining unit as well, whether as a Professor or as a Counsellor. The first of these two
grievances was then launched, in response to the College's posting of this full-time
l~osition as a Support unit job. In cross-examination Ms. Musson indicated that the
P~cademic steward in the Counselling Department may have been aware that the Learning
Strategist work was being performed in a job classified by the College as Support, but
ti'nat she herself had always been of the belief that it was being done by Academic
"Counsellors".
Cases of "definition" are never easy. That is particularly true when the term in
question has as potentially broad an application as the disputed word here: "counselling".
It is therefore not surprising that, as the parties have advised, the placement of the
"Learning Strategist" position at other Colleges has varied across the province. The
Learning Strategist position is clearly one close to the line, falling somewhere in the
"Skills and Competencies" order between the two other parts of the "enhanced services"
team, the Learning Disabilities Counsellor and the Adaptive Technologist, and placement
may turn on the degree to which the position at a particular College incorporates skills
belonging to the higher order of classification, versus the lower. As another of the
governmem's "Backgrounders" notes (February 2002 - our exhibit 11), the models in
terms of combinations of duties vary, as does even the title by which the Learning
Strategist position is referred to at different Colleges. On the latter point, the paper
comments, for example:
The job title of learning strategist (LS) has actually been used in several
different ways by LOTF pilot projects. Some have favoured this title to
refer to what other projects have termed "LS Specialist" or "Learning
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Consultant"; some pilots have had both Learning Strategists and LD
Specialists/Learning Consultants (or the equivalent) on staff.
I~aving said that, the paper goes on to note:
One significant distinction between these two roles is whether or not
incumbents possess formal qualifications permitting them to conduct and
interpret psychological assessments including diagnosis of learning
disabilities, and whether or not they are required to draw on such
credentials to perform their jobs.
A~s noted above, however, at Fanshawe that difference in competencies exists even
an~ongst the Counsellor group, so that it fails to provide a helpful demarcation point for
the present case.
The Union presented evidence of what the Learning Strategists are actually doing
in the job from both of the incumbents, as well as the current Co-ordinator of Disability
Services, Shelley Reynolds. Ms. Reynolds performed the Learning Strategist job at
Fanshawe from 1994 to 1998, and testified that the complexity of the students presenting
for help has escalated tremendously, with the result that far greater intervention and
intensive work is required to assist them with their learning problems. Each student's
situation tends to be unique, Ms. Reynolds ntoes, and will generally require at least some
element of creative problem-solving by the Learning Strategist. She testified that she
regards the LS's as peers, and not working under the supervision of herself, or any of the
other Counsellors. While intake normally is done (and is now required to be done)
through herself or the other Counsellors, she testified that preliminary screening of the
learning-disabled students is then done "in more depth" by the Learning Strategist, before
a plan of action is embarked upon. It is by no means, Ms. Reynolds testified, a matter of
the LD Counsellor identify/ng certain tools that he or she feels would be appropriate for
the student, and sending the student to the Learning Strategist to provide a hand-out of
them off the shelf. Before the Learning Strategist can "advise" the student on an
appropriate method or course of action to explore, the Strategist needs to understand the
other emotional or personal baggage that the student is having to cope with, in order to
deal with the student "whollistical!y". If there is an overwhelming personal problem that
appears to be getting in the way, or one that appears likely to persist, the Learning
Strategist is expected to refer the student to the appropriate person for help, whether an
individual Counsellor within the Department, or at an external resource. But Ms.
Reynolds notes that even within the Department there are a variety of personalities and
specialties, and the decision as to where to refer the student for the best match is one that
she as a Disability Services Counsellor makes every day. Ms. Reynolds explained that a
Counsellor's notes can be filed as either "Clinical" or "Other", and that access to
information in the "Clinical" file is limited to persons formally in the "Counsellor"
classification. Ms. Reynolds indicates that the Learning Strategists need all of that
information to do their job properly, and that the "default" mode is now set so that all
information goes to the "Other" file. Ms. Reynolds testified that she has never had
occasion to choose instead to save something to the "Clinical" file, so as to deny the
Learning Strategists access. Ms. Reynolds was taken through the various elements in the
College collective agreement's Definition of"Counsellor", as well as the expectations
identified in exhibit 14, an August 2003 Report of the Task Force which includes "non-
therapeutic counselling", and ventured her opinion that the Learning Strategist is
effectively called upon to do all of that.
The testimony of the two incumbents was similar. Ms. McGauley began her
working life as a Community Health Nurse, and in her earlier years acted for a period as a
Drug Abuse Counsellor at ARF. More recently she held a variety of teaching positions,
including at Fanshawe. Since July 1999 she has been working (initially in the
12
Millennium Project) as a Learning Strategist in the College's Disability Services
l~ivision. Ms. McGauley acknowledges that the reason the students are referred to her in
tine first place is to get assistance with learning strategies, but adds that the Strategist
"cannot separate out the [other issues] to be effective". She has to place the "learning"
issues in the context of the students' whole life, and deal with overall time management
and prioritizing. On the academic side Ms. McGauley indicates that she may have to
review with the students whether they are carrying a realistic workload, or are in the right
program. She may follow up with the Department for more information in that regard,
or may send the student back to discuss with the Department directly the available
options. On the personal and emotional side, she typically has to deal with self-esteem
issues, with the student's sense of failure, and concerns about being "stigmatized" as
someone having a "learning disability". From that perspective she may find herself
working with the students on their social relationships, as well as helping them to develop
some comfort in self-advocacy. She has a series of standardized tests that she uses for
anxiety, for example, and will discuss those results as part of a plan for the student. For
the more serious situations she will of course refer them to other sources of help, either
within the Department or outside. And if the referral is inside, she continues to work
with the student and Counsellor as part of a collaborative team.
Mr. Madzia is a teacher by trade, and has an M. Ed. in Educational Psychology.
He is a certified Guidance Specialist and a Special Education Specialist as well. Since
2001 he has been acting as one of the Learning Strategists (half-time) in Fanshawe's
Counselling and Student Life Department. From April to June of 2002 he was hired on a
sessional basis to do exactly what he was doing at the London campus for the Pre-
Apprentice Machinist program in St. Thomas, and was paid at a Counsellor (hourly) rate.
Once again, he will refer elsewhere any of the more severe or ongoing problems that he
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may encounter, but otherwise will try to deal with the emotional or other issues as they
are raised, as a context for selecting and maximizing the best learning plan. The work
¢-,'ith each student is intense, typically running 7 to 8 one-hour sessions in a semester.
Occasionally the discussion of the "affective" problems -will take over the whole session,
but his goal is to direct the discussion in such a way that he can cover at least one new
"learning strategy" for the student in each session. On each referral the Learning
Strategists receive the standard "Green sheet" from the Counsellor setting out
recommended accommodations, but Mr. Madzia has supplemented that information with
a more detailed "Learning Strategies Referral & Intervention Form" that he designed and
that he asks the Counsellors to fill out. Using both of these as a starting point, Mr.
Madzia reviews the psycho-educational or cognitive assessments on file, and together
with the student's own sense of their disability gleaned from the preliminary interview,
works on designing with the student a course of action. Mr. Madzia has a number of
standard-form hand-outs that he makes available to students on some of the specific
"learning strategies", such as Memory technique, currently in use; but he also has a
number of techniques that he has developed on his own, one of the more prominent
perhaps being his "Shoe-boxing" system for prioritizing competing areas of a student's
life stresses. He and Ms. McGauley also meet regularly with the Adaptive Technologists
to discuss what devices or programs might best be utilized to help a particular student.
As with Ms. McGauley, Mr. Madzia went through the list of elements in the collective
agreement's "Counsellor" definition, and outlined the work he feels he is doing as the
Learning Strategist in connection with each.
Lois Wey took over from Grant Meadwell in the fall of 2002 as Manager of the
full Counselling and Student Life Services Department at Fanshawe. Ms. Wey has a
Masters in Social Work and was EAP Director for London Family Services prior to
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coming to Fanshawe. In her field of social services she has been trained as a Site
l~eviewer for the Council on Accreditation based in New York. The Department at
Fanshawe has a "general" side, providing personal, career and academic counselling for
the student population at large, and a Disability Services side geared exclusively to
students with any form of physical disability, or a diagnosed "learning disability". At
London for the latter there is one Counsellor who deals primarily with physical
disabilities, and three (Frank Walsh, Bob McKeown and Shelley Reynolds) who deal
with the learning disabled. All four of those are classified as "Counsellors" in the
~_cademic unit. Additionally there is one Intake Officer, one individual handling a
variety of administrative tasks, one individual handling exam accommodations, two
~_daptive Technologists, and two Learning Strategists, all of whom are considered by the
College to be Support. Since September of 2004 Ms. Wey has put a stop to any self-
referrals, or direct referrals from another Department, to the Learning Strategists, so that
any related issues such as drug abuse or grief can be identified and dealt with by one of
the Division's Counsellors. At Fanshawe all "Counsellors" are required to have at least a
Masters degree in education, psychology or counselling, and Ms. Wey testified that all of
the Counsellors in her Department are qualified to deal with the more severe situations
like suicide risk or drug problems. She indicates that students may be referred by a
Counsellor to the Learning Strategist to deal with such issues as time or money
management, or personal organization. She agrees with Ms. Reynolds that there are
areas of specialty within the "Counsellor" group generally, and that referrals from
Counsellor to Counsellor would similarly take place on that basis as well. She also
agrees that, even in the two and a half years that she herself has been there, the number
and complexity of Learning Disabled students coming into the Division has increased
"dramatically". Ms. Wey generally accepts the evidence of Ms. Reynolds and the
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o urrent incumbents as to what they say the Learning Strategist is doing, but disputes their
o haracterization of it as "counselling". Commenting on exhibit 10, the list of expected
c ompetencies from LOTF, Ms. Wey of course agrees that the LS must have a knowledge
and understanding of learning disabilities and how they impact the ability to learn and
ft~nction effectively. On the ability to interpret and explain LD assessments to the
students, she testified that this is extremely important, but that it is primarily the role of
the LD Counsellor. She acknowledges that the LS must have the ability to understand
them as well, as they may have to "re-explain" them to the students in helping them to
understand their problem. She agrees with the necessity to be able to liaise with other
staff and faculty, although she indicates that she is surprised to hear the evidence of Ms.
Reynolds and the incumbents that the contact with faculty is "frequent". Ms. Wey agrees
that the LS is required to understand the individual student's barriers to learning, and to
help "coach" the student around those barriers. But she distinguishes that from the role
of the Counsellors, whose job she would say is rather to "counsel" the students around
those barriers. Similarly, she simply does not accept that the Learning Strategists at
Fanshawe are required to have "the skills of LD specific counselling to deal with
students' reactions to negative learning experiences, feelings such as helplessness,
defensiveness, anxiety, low self-esteem and an initial lack of self-advocacy skills", to
quote the language of the Government's "Backgrounder". She notes that the lattermost
in particular can be extremely important in the case of students coming directly from high
school, but with all of these considers them to be the role of the LD Counsellor. On the
other hand, she agrees that the job of the Learning Strategist at Fanshawe requires a great
deal of"innovative thinking" and "problem-solving" in fashioning a learning plan, as
each student's case is unique. She also agrees that the Learning Strategist is required to
recognize and be sensitive to each student's strengths and limitations, in order to help
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cteal with the student's learning problems "whollistically" (as Ms. Reynolds had put it).
~'rom that perspective, Ms. Wey acknowledges, it is a necessary part of the job that, if the
student has personal or emotional problems to talk about, the Learning Strategist would
b,e expected to sit and listen empathetically; she adds, however, that she would expect the
L~S to then quickly move on, hopefully "within five minutes", and leave the rest of the
c[iscussion to referral to a Counsellor or outside agency. On the "general" or non-LD
sride, she adds, the learning strategy work is part of the work of the Counsellor; but on the
I~isability side, the separate position of Learning Strategist has been able to be created to
",download" some of that. In her view, that down-loading is similar to that which has
been effected as well through the addition of the Adaptive Technologists, and it is that
latter position, and not that of Counsellor, which Ms. Wey feels provides the closest
a~nalogy to the required skill-set for the Learning Strategist.
As the Union fairly noted, the underlying issue here is money (in terms of rate),
and the Union is straightforward in acknowledging the effect that a decision upholding
the grievances may have on budget. Ms. Wey, however, is a career therapist and
counsellor, trained, as noted, in the area of accreditation, and for her the board can see
that the issue is very much one of the proper demarcation line for the profession. Ms.
Vv"ey agrees that even amongst the "experts" there is an ongoing debate in the field as to
who ought to be allowed to hang a sign outside their door representing themselves to the
public as a "counsellor". It is Ms. Wey's and the College's submission that the board
should be careful not to use the term "Counsellor" too loosely, or "generically", but
rather should define it narrowly against the language used in flae actual job descriptions
and the collective agreement's definition. The board will come to the descriptions and
de finition in a moment. But on the former point, while the board agrees that the use of
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"labels" is not dispositive, the board does note the language used by the College itself in
some of its documents relating to the Department. One document for students states, for
example:
Counselling and Student Life Services
ShouM I see a Counsellor?
If the answer to any of the following is "yes", counsellor or the staff in
F2010 may be able to help you.
Academic
· Are you having difficulty figuring out how much time to spend on each
subject?
· Do you read your text over and over; but nothing seems to stick?
· Do you dread the thought of giving a presentation in front of your class?
· Does your mind go blank on tests?
° Do you have difficulty with multiple choice/short answer/true and false/or
essay exams?
All of these obviously are areas covered in Disability Services by the Learning Strategist.
Similarly, a further student hand-out includes:
Learning Strategies Counselling
· Time management
° Study skills
· Test-taking strategies
· Note-taking skills
· Organizational skills
o Memory Improvement
This once again, Ms. Wey agrees, is a reference to the Learning Strategists, and she is
"surprised" to see the reference to "Counselling" in there. Also not prepared by Ms. Wey
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but in use in her Department currently is a "Counselling Issues Codes" sheet for staff to
u se to enter their time. Under "Learning Strategies Assistance" for the Disability
Division, there is a specific entry for "LD Specific Non-Therapeutic Counselling", which
Ms. Wey acknowledges is for the use of the Learning Strategists when dealing with what
have been referred to as the "affective" issues. Ms. Wey does not disagree with the
testimony of the Union witnesses that that Code is used by the Learning Strategists
"regularly".
Ms. Wey, it should be noted, does not denigrate for a moment the level of skill and
experience that the two current incumbents have been able to bring to the Learning
Strategist job; indeed, she would be the first to acknowledge that Fanshawe is lucky to
have them. Nonetheless, the College emphasizes that for classification purposes, a
position is defined by what the job assignment is, not what a particular incumbent brings
to it, or decides on his or her own to make of it. We agree: see, for example, Fanshawe
College and OPSEU (Lovelock), a decision of Owen Shime dated April goth, 1987. It is
critical, therefore, to measure the testimony given by the various witnesses against the job
documents outlining the demands and duties of the position - - particularly where, as
here, those job documents have been read and signed off by the respective incumbents.
The job documents in question themselves contain certain language that is arguably
"open to interpretation", but one of the most striking things about those descriptions is
the way in which they themselves underscore an evolution in the position, in response, it
might be inferred, to the "dramatic" escalation of demands on the Department that all of
the Departmental witnesses attested to. In the most significant areas, the PDF for the
position as of 1999 read:
Duties and Responsibilities
19
1. Provides instruction on learning strategies through demonstration and
practical applications. Focus on methods of compensating for processing
deficits including the use of attention and memory strategies, planning and
organizational skills, time management methods, problem-solving, note-
taking, and strategies for more effective reading, written expression and
mathematics. Assist students in applying strategies to immediate academic
demands. 45%
2. Demonstrates and assists in the use of specialized assistive devices and
computer software, including text-to-voice and voice-to-text systems,
electronic language guides, personal FM systems, keyboarding devices,
talking calculators. 20%
3. Assists in the preparation of Confidential Student Information Sheets
prepared by other staff; recommends effective strategies based on
documentation regarding students' congnitive and academic abilities. 10%
4. Collaborates with other College services areas that provide learning
strategies instruction (Academic areas, Math and English learning Centres)
when working with students with disabilities; promotes compensatory
learning strategies as an effective approach for students with disabilities. 10%
5. In cooperation with other staff, prepares and presents professional
development resources for College staff in relation to strategies for effective
instruction of students with disabilities. 10%
6. Identifies the need, and refers students when appropriate, for personal
Counseling and assistance in dealing with social, emotional, academic and
career counseling. 5%
2O
That "Duties" description bears resemblance, the board notes, to the early "instructional"
ctescription of the LS position set out above and contained in the College's application for
funding for the Millenium Project~ It is also noteworthy that "Judgement" the 1999 PDF
read simply:
4.1 Describe the degree of independent judgement and problem-solving
required to perform the duties of the position.
"Helps students with learning strategies."
By 2003 the Duties section had been revised to download #2 to the separate Adaptive
Technology positions, and to move a key part of#3 up into the principal descriptor
paragraph, at a total revised percentage of 70% of the job:
Provides instruction on learning strategies through 70%
demonstrations, practical applications, use of instructional videos
and multi-media resources. Recommends effective strategies
based on documentation regarding students' cognitive and
academic abilities. Focus on methods of compensating for
processing deficits including the use of attention and memory
strategies, planning and organizational skills, time management
methods, problem-solving, note-taking and strategies for more
effective reading, written expression and mathematics. Assists
students in applying strategies to immediate academic demands.
Refers students to Assistive Technologist for instruction in the use of 5%
specialized assistive devices and computer software.
Collaborates with other College service areas that provide lea_ming 10%
strategies instruction (Academic areas, Counselling, Math and English
Learning Centres) when working with students with learning disabilities
or learning challenges promotes compensatory learning strategies as an
effective approach for students with learning disabilities or learning
challenges.
21
I~n cooperation with other staff, prepares and presents professional 5%
development resources for College staff to help generalize the use of
rtnetacognitive strategies in various academic settings, effective
instruction of students with learning disabilities or challenges.
Identifies the need, and refers students when appropriate, for personal 2%
counselling and assistance in dealing with social or emotional
difficulties.
Assists with data collection contributing to program research and 3%
e-valuation.
Performs other related duties as assigned by the Manager. 5%
Informing as to whether this shift in emphasis was in fact considered to be qualitative and
material, the section on "Judgment" is extensively re-worded (in line with the "evolution"
noted in the Millenium Report) to now provide:
Duties associated with this position require independent judgement and
creative problem solving that include facilitating the needs of students with
learning disabilities or learning challenges to achieve academic success...
Incumbent uses psychological assessments along with client information to
develop compensatory strategies to enable client to be academically
successful.
That re-wording the board notes as well is very much in line with the description of the
job provided, for example, by Mr. Madzia.
It is the responsibility of this board to identify the "core function" of the position
in dispute, and to decide from there which of the proposed classifications, and in
particular which of the respective bargaining units, appears to represent the "best" or
"closest" fit. Compare: Fanshawe College and Ontario Public Service Employees
Union (April 24, t 987) unreported (Brent); Fanshawe College and Ontario Public Service
22
~mployees Union (December 23, 1988) unreported (Samuels); Fanshawe College and
Ontario Public Service Employees Union (August 20, 1996) unreported (Burkett);
Fanshawe College and Ontario Public Service Employees Union (April 21, 1999)
unreported (Devlin); George Brown College and Ontario Public Service Employees
Ulnion (December 4, 2000) unreported (Shime); Fanshawe College and Ontario Public
Service Employees Union (April 18, 2002) unreported (Burkett); George Brown College
and Ontario Public Service Employees Union (October 17, 1990) unreported (Carter);
George Brown College and Ontario Public Service Employees Union (May 12, 1993)
unreported (Mitchnick); Niagara College and Ontario Public Service Employees Union
(March 26, 1998) unreported (Swan). Where (as is often the case with positions on the
margins) the relevant descriptors do not precisely fit the job in dispute, "closest" fit is the
best one can do. The Learning Strategist position is currently classified by the College
as "Support Services Officer C" in the Support Unit. The description of that job from
the Manual provides, to begin with:
Support Services Officer C
This family covers positions that perform administrative duties that are
functional/project oriented rather than task oriented and involve
conceptualizing, facilitating and project managing.
Evaluation Criteria Support Services Officer C
Summary of Incumbents perform duties associated with developing and
Responsibility operating College academic/administrative programmes
according to the assessment of the needs of client groups both
within and outside the College. Liaison functions are normally
of a proactive nature.
23
Typical Duties - Researches and prepares presentations and reports to
communicate and support College plans and objectives.
- Provides functional guidance and direction to others.
- Analyzes requirements of groups both within and external to
College and develops programmes to meet these requirements.
- Provides liaison with government agencies in relation to the
administration of projects...
Sheila Wilson, a Human Resources Consultant at the College, had the task of deciding
vchere the Learning Strategist position belonged, once the Enhanced Services Fund had
approved the new hirings. Because a form of"Learning Strategist" position had been in
existence at the College for years, strictly as a Support unit position, it understandably did
not cross Ms. Wilson's mind to make a comparison of the Academic versus Support
services bargaining units. She simply set about trying to find the closest fit that she
could within the Support family of job classes. And Support Services Officer C, she
indicated, was the closest she could come. As Mr. Atkinson notes, however, the issue
raised by the present grievance is not whether the present Learning Strategist job has
been properly classified amongst the classifications available within the Support
bargaining unit itself. And the job classification plan for that unit allows for the
handling of new, "atypical" classifications in any event. The question for the board is
whether it has been persuaded that the position in dispute can be seen to appropriately fit
within one of the categories of the "Academic" unit. While there are clearly
instructional features to the LS position, the Union, not surprisingly given that the
position forms part of the Counselling Department and collaborative counselling team,
and was (and on the General side is) performed by Counsellors themselves, focuses on
the definition of "Counsellor", rather than "Professor", under the Academic collective
agreement.
24
The issue for the board here, it is important to note, has nothing to do with the
appropriate credentials for "counsellors" in the commercial marketplace; and the College
itself has the right to set relevant qualifications for the position of "Counsellor" at its own
institution. The sole issue before the board is whether, on the evidence, the position of
Learning Strategist can be said, according to its "core" functions, to line up more closely
with the "Academic" position of "Counsellor" under the parties' collective agreement, or
with a Support unit classification. The definition of"Counsellor" is as follows:
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.
25
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.
The board agrees that some parameters must be put around a general term like
"counselling" to provide a meaningful line of demarcation. But the preamble to the
definition provides at least a starting point, and there is no question that the role of the
Learning Strategist is to "assist students...to function effectively as leamers...by helping
them understand...or overcome...educational problems that may hinder learning...". The
list of duties that then follows, it is to be noted, is not prescriptive; the Definition says
that they "include" the following. The evidence is clear that not every one of the
elements set out is performed by every one of the acknowledged "Counsellors". The
primary duty is set out in (a), and clearly would describe what it is the incumbents do
here - - depending, obviously, on the conclusion one comes to on the core issue of
"counselling". Item (b), although certainly not the primary focus of the "Learning
Strategists, nonetheless can also be said to have application, depending, once again, on
the extent to which the board finds the position existing at Fanshawe does require the
incumbents to regularly explore "personal or social difficulties or vocational/educational
decision making". The LS's here do play a role in group sessions, although they do not
have a responsibility for "therapeutic" treatment. As discussed, testing and evaluation
from a diagnostic perspective is limited to two specific Counsellors in the Division, and
26
so is not a distinguishing ingredient for determining a "Counsellor'~ at Fanshawe. The
evidence of the Union is somewhat disputed as to the extent of the Learning Strategists'
interaction with faculty, but it is noteworthy that the Report on the Millenium Project
clearly supports the experience as testified to by the position's incumbents. The evidence
indicates that the Learning Strategists here from time to time perform (f) and (g) as well,
together with the bulk of the functions listed in the concluding paragraph. Both are
qualified and experienced teachers, and obviously are competent to teach if assigned.
On all of the evidence presented, and noting in particular the change in the job
document itself, as confirmed as well in the College's Report on the Millenium Project,
the conclusion that the board comes to is that the position of Learning Strategist at
Fanshawe has, over time, undergone significant re-structuring and change from its
beginnings, to the point where it now entails as a principal part of its "core function" the
regular provision of"counselling" services to its Learning Disabled clientelle (even if
primarily in an "LD-specific" context), within the meaning of the Class definition. In
contrast to the provision of such services having perhaps previously been able to be
characterized as "vestigial" to the core function, in the language of Arbitrator Swan, for
example, in his March 26, 1998 decision at Niagara College, we find that the
"counselling" aspect of the job here has reached the point where it can be said to meet the
"quantitative" or proportionality test articulated by Arbitrator Carter in Georgian
College. Once "learning strategies" have been diagnosed for a particular student as a
useful focus, the board finds on the evidence here that the referral of the student to the
Learning Strategist is essentially a lateral rather than a downward one, as reflected in the
practice of the Counsellors to opt to make their file information available to the Learning
Strategist, through the use of the "Other" filing mode. The supervision and/or guidance
that we find takes place at Fanshawe is more of the Learning Strategists overseeing the
27
ongoing work being done ~vith the student by the Adaptive Technologists, than if is of the
Counsellors over the work of the Learning Strategists.
The main argument against the Learning Strategists as they now exist at Fanshawe
being classified as "Counsellors", it seems to the board, is that they are indeed focused
around students' educational and relationship problems in a more limited way than the
other Counsellors in the Department, and even in the Disability Services Division. But
as noted in Algonquin College and OPSEU, a detailed decision of Howard Brown dated
October 31, 1989, the question is whether the principal or core aspect of what the
position entails can or cannot be said to be "counselling". The College there as well
emphasized, and Arbitrator Brown accepted, that the main body of Counsellors "deal
with a full range of services for the students including personal issues and have a great
deal of discretion dealing with those problems". The position in question, "Career
Advisors" in the Futures Program, was, as the name implies, limited to providing career
or vocational advice to the students of that program. With respect to the Support
Services Officer category, the board, as here, noted, at page 27:
The Career Advisor does not on the evidence before us, administer the
College programs, but is one part of the staff function for the provision of
counselling requirements to the Futures program. The typical duties of an
SSOB does not, in our opinion, fit the duties required of the Career Advisor
set out in Ms. Godwin's evidence. The position summary of the Career
Advisor job description is indicative in our view of that conclusion.
More importantly, with respect to the definition of a "Counsellor" in the Academic unit
the board commented:
The evidence is that the duties of the Career Advisor relating to counselling
of students is confined to the Futures program as opposed to the general
application of counselling services in the Counselling Department of the
28
College, but for the purposes of the issue in this case, it is important to
consider the duties and the responsibilities of the incumbents in relation to
the appropriate classification requirements which do not limit counselling
to the Counselling Services Department but is a description of the duties
and responsibilities of a Counsellor wherever employed in the College. A
Counsellor has the same functions although not necessarily the same duties,
whether limited to a particular program or in the counselling office of the
College.
The scope of the "counselling" activities certainly are broader here than in the Algonquin
case, and the board, once again, does not find dispositive the College's choice of words
like "coaching", as opposed to "counselling". The focus must be on the function, rather
than on the label, and the board finds that the division and structure of duties in the
Disability Services Department at Fanshawe now calls upon the Learning Strategists to
perform in a "core" and quantitative way the bulk of the duties identified in the College's
"Counsellor" definition.
In the result the board has been satisfied that the "Learning Strategist" position at
Fanshawe as it exists today more closely fits within the scope of the Academic
bargaining-unit position of "Counsellor", than it does within the Support Staff bargaining
unit. As noted in the Union Policy grievance of November 2002, it follows from that
that, unless the parties agree otherwise, the staffing of the current Learning Strategist
positions requires a revised posting that will indicate both the proper bargaining unit and
rate. Given the manner in which this position has evolved at Fanshawe over time, and
the lack of any challenge from the Union at the time of its earlier iterations, the board
does not consider any other form of consequential relief to be appropriate.
The board so declares.
29
Dated at Toronto this 24th day of June, 2005°
Union Nominee - Concurring
College Nominee
-Dissent to follow
Addendum/Dissent --- Bill Trimble
I must dissent fi*om the majority decision in this case.
The position of Learning Strategist at Fanshawe College was initially
established ten years ago as a resource to the Disability Counsellors and it
remains as such to this day.
The Intake Officer assigns each incoming student to a Disability Counsellor
for professional guidance and assistance. These Counsellors enter into
fbcussed counselling sessions with each individual student and, as an
integral aspect of these sessions, either performs a psychological assessment
or arranges for one to be conducted by another Counsellor. Upon
professional review of this assessment by the Disability Counsellor and after
further analysis and discussion with the student, a program of remedial
and/or support services, specific to the student's problems and needs, is
developed by the Disability Counsellor.
It is clear that the counselling that is contemplated by the parties to this
collective agreement occurs during this stage.
This program of remedial and/or support services is then passed to the
Learning Strategist for implemention.
The nature of the ensuing activities conducted by the Learning Strategist is
one of educating, training, assisting, etc. the student in adapting to the
overall program established earlier by the Disability Counsellor. Indeed, the
word "counselling" does not appear in the College's job description for the
Learning Strategist.
While there may be a small component of the position responsibilities that
one might, at a stretch, construe as "counselling", it is at best a very minor
component of the Learning Strategist role.
Since this position was created over a decade ago, the duties have changed
only marginally. While the nature and severity of the problems faced by
some of the current students with learning disabilities may be more complex
than in the past, the actual duties of the Learning Strategist remain as they
have been tbr many years. One of the fundamentals ofanyjob classification
system is that an increase in the volume of similar work perlbrmed does not
justify a change of classification.
Much is made in this majority decision of the percentage increase, as
reflected in the current job description, in the duties assigned to the 1st
activity where the percentage of time spent has risen from 45% in the past to
70% currently. When one notes that 3r" item in previous descriptions, worth
10%, has simply been incorporated into the 1 ,~t activity in the new 2003
copy, the new 70% is actually a merger of the 1 st and 3rd components of the
previous job duties, thus narrowing the increase to 15% ( 70% -45% +10% )
which is not significant in and by itself: Also, when one reviews the outline
of the duties expressed in the I st paragraph of the position description, which
describes the major rationale t:br this post, one has real difficulty in
interpreting the language as describing a function that is primarily
"counselling" in nature.
Another aspect of the current job description which drew the attention and
comment of Mr. Mitchnick was the item headed "Judgment ". Let me
comment on the second paragraph ( my comments are in parentheses ).
"Incumbent uses psychological assessments ( done by the counsellors )
along with client information ( assembled by the counsellors ) to
develop compensatory strategies to enable client to be academically
successful."
The evidence we heard was clear that the above has been part of the learning
strategist duties and responsibilities for many years prior to this grievance.
Rather than reflecting a change to the job as suggested by the majority
decision, the insertion of the above in the 2003 job document was merely a
recognition of what the job had entailed ibr many years.
As acknowledged by Mr. Mitchnick, the question here is whether the union
has shown that the Learning Strategist is a counsellor under this collective
agreement, not whether it is properly classified under another collective
agreement. It is my view that the union has not shown this to be the case.
The test that previous arbitrators apply in these instances is the "core
function test". In this case, the core function is the provision of learning
strategies instruction, that is, pertbrming as a tutor, educator, or trainer in
teaching an applicable learning strategy to a student. The purpose of this job
is to help the student to develop a particular academic-related skill, and this
is not a counselling responsibility or characteristic. Nor is listening to and
encouraging a student who expresses feelings of anxiety or low self-esteem
during a learning strategies session. The core function of the Learning
Strategist has not materially changed since Ms Reynolds performed it in
1994, and this function has always been considered and evaluated as a
Support Staff level position.
As stated at the outset, regardless of how other Colleges have structured or
classified the duties of the Learning Strategist, at Fanshawe College the
Learning Strategist acts in support of the Disability Counsellor, and certainly
not as an equal.
For these reasons, I would dismiss this grievance.
Respectfully submitted,
Bill Trimble