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HomeMy WebLinkAboutUnion 03-12-08IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE ("Employer") AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("Union") AND IN THE MATTER OF: GRIEVANCE - OPSEU FILE #01C049 BOARD OF ARBITRATION: Kcvin M. Burkett - Chairperson John McManus - Union Nominee Robert Gallivan - Employer Nominee APPEARANCES FOR THE COLLEGE: Robert Atkinson - Counsel Horace Knight - Staff Relations Consultant APPEARANCES FOR THE UNION: Gavin Leeb - Counsel Paddy Musson - President, OPSEU Local 110 Gary Fordyce - Chief Steward Hearings in this matter were held in London, Ontario on October 31 and February 7, June 19 and 20 and October 15, 2003. AWARD This is a Union grievance, dated October 5, 2000. The grievance reads as follows: Local 110 grieves that the College has reclassified the work of delivering Basic Food Preparation 1. As a remedy, we seek a declaration that this work belongs to the professor classification and that the vacancy caused by the departure of Oscar Naylor be posted and filled immediately with a full-time professor. We also seek all Union dues owing, with interest. An issue arose at the outset as to whether the grievance encompasses a claim that the work in question is that of either the professor or instructor classification. In an interim award dated November 20, 2002, the Board, having considered the issue, found that: ... the October 5, 2000 grievance, as expansively read, encompasses a claim for the designation of the type of Basic Food Preparation 1 work performed by Mr. Naylor prior to the filing of the grievance, as work within the professor classification and the posting of any resultant vacancy. This is the issue raised by the grievance and, therefore, the issue that we are empowered to decide. Although it may be the subject of a separate grievance, it is beyond our authority to decide if this type of work is within the instructor classification. The parties were entitled to rely on this finding as final and conclusive for purposes of disposing of the instant grievance. Accordingly, it is not open to us to adopt the Union suggestion made in final argument that if not convinced that the job in question falls within the professor classification, we should nevertheless find that it is at least within the instructor classification and, therefore, within the academic bargaining unit. The issue to be decided, as we have already determined, is whether the work in question is within the professor classification. There is no dispute with respect to our authority to hear and determine this matter. The work that is challenged is the supervision of the lab component of the Basic Food Preparation 002 course. In 1998 the College introduced a new basic food preparation course that was designed to serve as an introductory level cooking course for students in three Tourism and Hospitality Division programs: Culinary Management; Hotel Management; and Food and Beverage Management. Prior to 1998 the Basic Food Preparation course had been taught within the on-campus restaurant, with first semester culinary arts students cooking and serving dinner for public consumption during their first semester, while first year hotel and restaurant management students cooked and served lunch for public consumption. Mr. Mike Hanwell, the dean of the division, decided in 1995 that first year students ought not to be cooking for the public, that a new demonstration theatre was required and that, generally, the basic food preparation course should be revamped. The College agreed to construct a state-of-the-art demonstration theatre to house a new basic food preparation course. The demonstration theatre was to be completed in time for the commencement of the 1998-99 academic year. Professor Alan Kerr, a full-time professor since 1989, was assigned to design the new course, which was to be comprised ora two-hour demonstration lecture and a three- hour lab per week. Prof. Kerr selected the text, chose the recipes, prepared the course outline and the weekly lessons plans, identified the learning outcomes, determined the marking scheme and generally designed and developed the course. Prof. Kerr was to 2 conduct the weekly two-hour demonstration during which he was to both teach and demonstrate the weekly lesson, which he has done since its inception. The three-hour lab was to be and is for the purpose of allowing students to prepare the various dishes that have been demonstrated by Prof. Kerr. The initial assignment to the lab in 1998 was within the academic bargaining unit. Mr. Oscar Naylor, a full-time professor who was being accommodated for a disability at the time, was assigned, along with Mr. Patrick Hersey and certain others. With the exception of Mr. Naylor, a full-time professor, they were appointed as instructors within the academic unit to oversee the Basic Food Preparation 002 labs for the 1998-99 academic year. A summary of their duties and responsibilities in this capacity will follow. Suffice it to say at this juncture that these duties and responsibilities have remained essentially unchanged even though their appointment for the 1999-2000 and ensuing academic years to do this work has been under the support staff collective agreement as technicians. Mr. Hanwell testified that it had been his intention from the outset to use technicians to staff the Basic Food Preparation 002 labs. He explained, however, that when the demonstration theatre was not ready to start the 1998-99 year, he became concerned that the demonstrations, which were to be conducted in a temporary facility, might not be as effective as they would be in the yet uncompleted state-of-the-art demonstration theatre that would become available. Accordingly, it is his evidence that he made the decision to appoint under the academic unit for the first year. He was concerned that it might be necessary to reiterate the weekly lesson in the lab, a function beyond the technician job description. He maintained, however, that technicians would have been appointed if the demonstration theatre had been completed on time. It is to be observed that there is no budgetary record of provision having been made for the appointment of technicians prior to 1999. The only written corroboration of Mr. Hanwell's assertion in this regard is an e-mail he sent in 1998 under the heading "Construct Cooking Demo Lab" in which he states in part, "... if the demo part of the lab is increased in hours, it may be possible to have the practical portion of the lab overseen by a technician." There are about 20 students per lab. The evidence establishes that in addition to preparing and generally supervising the weekly lab, the technician: · provides some general instruction to the students with respect to the particular lab (which is determined by that week's demonstration by Prof. Kerr), answers students' questions and generally supervises their work in the lab; · demonstrates with respect to the safe use of knives; · demonstrates the proper fire safety procedures and the correct food storage and sanitation procedures. (It is to be noted that butchering meats, proper fire emergency procedures and the correct food storage procedures are identified as learning outcomes in the student course information guide.) · completes a marking sheet at the conclusion of each lab under which each student is graded for professionalism/uniform/attitude/organization/cleanliness/table top/timing and taste/press/temperature/consistency. The marks are assigned in one mark increments. 4 · assists Prof. Kerr with the final exam by presiding over and providing a grade to half of the students. Prof. Kerr is present throughout, supervises the taking of the final exam and provides a grade to the other half of the students. · computes the students' final grade based on 60% for the weekly lab and 40% for the final exam; · ensures that both the large appliances (oven, deep freezer, grill, stove, boilers) and small appliances (blender, food processor, knives) are in working order and are used safely; · advises Prof. Kerr of any students who are struggling. The evidence establishes that Mr. Hanwell reviewed with Mr. Hersey a summary of arbitration awards concerning the demarcation between academic and support bargaining work dated September 14, 2001 (Ex. #30). The document reads as follows: 1. Support Staff can: - demonstrate and deal with other aspects related to the practical application of previously taught theory; -provide tutoring or academic assistance to students; - provide input into the student evaluation process; - provide technical expertise and/or advice to teachers and students; - provide instruction on "non-academic" subject matter or in areas of limited breadth and complexity; - conduct workshops relating to a specific technique; - monitor and supervise students' placements or field trips; - administer student placement. 2. Support Staff can not: - provide academic leadership; - deliver or introduce new course content; - conceptualize curriculum design, but can provide support to the process of developing curriculum, such as research; - determine the academic objectives to be attained in a course; - teach theory, but can explain theory as it has been presented by a faculty member; - perform formal evaluations on the progress of students to determine whether their knowledge of course content is sufficient; - grade or mark (unless the marking is routine in nature or clear guidelines are provided in order to perform the task); - have the "core function" of their position to be responsible for imparting course content to students; - perform counselling as the main component of the position. Mr. Hanwell reminded Mr. Hersey that as a technician he was to do the duties that support staff can do and not to do the duties that are shown as duties that support staff cannot do. Mr. Hersey objected that he was required to perform some of the academic duties, particularly those related to formal evaluations and marking. Mr. Hanwell took the position that any marking done by Mr. Hersey was routine in nature and, therefore, could be done as a technician. Mr. Hersey disagreed. His student evaluation responsibilities did not change. The professor classification definition is set out in the collective agreement as . follows: Professor 6 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 7 recruitment and selection, time-tabling, facility design, professional development, student employment, and control of supplies and equipment. The instructor classification definition is set out in the collective agreement as follows: 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 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; - tutoring and academic counselling of students in the assigned groups; - evaluation 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 typical duties for the Technician B classification (Ex. #31) are as follows: · provides technical support in maintaining and operating equipment; · demonstrates correct techniques for the use of materials and equipment; · sets up and performs a wide range of experiments; · maintains equipment records and undertakes troubleshooting and repair work; · checks student activity. It is not disputed that technicians regularly interact with students in various labs. Submissions The Union fi.ames the issue in dispute as whether the work in question is academic or support staff work or, more specifically, whether the duties performed by Mr. Hersey constitute work that falls within the academic bargaining unit. It is the position of the Union that the necessary starting point for this inquiry is the initial assignment of this work within the academic bargaining unit, coupled with the fact that the work has not changed. It is suggested that in these circumstances the presumption must be that the work continues to be that of the academic bargaining unit. The Union assesses the work of Mr. Hersey against the list of academic functions that are not to be performed by support staff as set out in the September 14, 2001 summary of the arbitral demarcation between academic and support bargaining unit work (Ex. #30). Using this summary as a guide, the Union asserts, firstly, that Mr. Hersey provides academic leadership in that his students look to him for instruction and guidance within the lab and in that he teaches 9 them what they need to know to complete the course of study; secondly, that it is arguable that he delivers course content in that he provides demonstrations and otherwise shows students how to prepare food in accord with the course requirement. Specific reference is made to saut6ed chicken and to the butchering of pork and the filleting of salmon. It is submitted that because Mr. Hersey provides input with respect to the progress of students, what they are grasping and the changes that should be made to meet their needs, he plays a role in determining the academic objectives to be attained in the course. The Union maintains that the marking and evaluation done by Mr. Hersey, i.e. the marking of the final exam for one half the class and the weekly assignment for all students, constitutes "formal evaluation on the progress of students to determine whether their knowledge of course content is sufficient." The Union disputes that Mr. Hersey's involvement in this regard is routine, arguing that it requires the exercise of judgement. Finally, the Union submits that Mr. Hersey imparts course content to students in that he must answer students' questions during the lab with respect to proper methods and techniques. The Union does not rely upon curriculum design, teaching of theory or counselling as academic functions identified in Ex. #30. However, it is the position of the Union that, given the various other academic functions performed by Mr. Hersey, it must be found that the College breached the collective agreement when it removed this work from the academic bargaining unit. In further support, the Union maintains that in addition to the butchering, Mr. Hersey demonstrates the safe handling of knives and the sanitation, storage and handling of food, which, it submits, are learning outcomes. The Union asks us to find that Mr. Hanwell's evidence with respect to the reasons for the reclassification from academic to support staff work was not convincing. Absent documentation to support a finding that the intention from the outset was to use 10 technicians and absent any formal step being taken in this regard until a year after the work had been assigned to the academic unit, the Union reiterates that the necessary starting point for this inquiry is an acceptance of the work as having been academic prior to its assignment to the support staff unit. The Union accepts the core function test and refers to the following cases in support of its position that on a core function analysis this is academic work: Fanshawe College and OPSEU (August 10, 1996, re: Support Teaching in Tourism and Hospitality) unreported (BurketO, Fanshawe College and OPSEU (April 24, 1987 re: Union Grievance OPSEUFile 86425) unreported (BrenO and Fanshawe College and OPSEU (August 5, 1986, Group Grievance re: Registration Day) unreported (Samuels). Given that the work in question was initially assigned within the academic bargaining unit and that there is no suggestion that the work has changed, it is the position of the Union that the onus is upon the College to justify its reassignment to the support staff unit. The Union relies on the following cases in support of this position: Neill-Wycik Co-operative College Inc. and CUPE Local 1281 (1995) 50 LAC (4th) 27 (Serra), Loeb IGA and UFCW Local 175 (1990) 12 LAC (4th) 392 (Fraser) and Hydro Electric Power Commission and CUPE Loca11000 (1974) 5 LAC (2nd) 168 (O'Shea). It is the position of the Union that this grievance must succeed because the College has failed to discharge this onus. Finally, the Union submits that if we are somehow unable to conclude that this is professor's work, but are nevertheless satisfied that it is work of the academic bargaining unit, we should uphold the grievance but remain seized for purposes of remedy. The College describes the issue as whether Mr. Hersey performed as a professor in the academic bargaining unit when conducting the cooking lab as part of the Basic 11 Food Preparation 002 course. The onus, it is submitted, is upon the Union to establish that the work in question is within the professor classification. The College dismisses the Union suggestion that the Board remain seized for purposes of remedy if convinced that the work is academic but not necessarily within the professor classification. The College submits that this Board determined in its interim award dated November 20, 2002 that the issue before us does not extend to determining whether or not this work is within the instructor classification. Reference is also made to George Brown College and OPSEU (December 4, 2000) unreported (Shime) in support of the position that, in order to succeed, the Union must establish that this work is within the professor classification. The College asks us to dismiss the further suggestion of the Union that the initial assignment of this work within the academic bargaining unit is significant. The College maintains that a credible explanation was provided as to why this work was assigned within the academic unit for the initial year of the course such that nothing should mm on the initial assignment. Ontario Hydro and OHEU Local 1000 (October 18, 1985) unreported (BurketO is cited in support of this position. The College relies upon the classification definition for professor as establishing the parameters within which the Union must establish that this work falls. It is the position of the College that in circumstances where the course was developed by Prof. Kerr (in that he created the curriculum and the menus, selected the text, developed the work plan for students and the course outline, was responsible for the method of evaluation, the marking scheme and the final examination) and delivered by Prof. Kerr (in that he imparts the course content and demonstrates the various techniques and dishes in his weekly demonstration lecture), it cannot be that Mr. Hersey, who does none of this, is also a professor. The College asserts that for pedagogical reasons, it cannot be that 12 there are two professors responsible for the same course. Rather, consistent with the assignment of technicians to oversee lab work in many other courses, we are asked to find that Mr. Hersey performed within the Technician B job description (Ex. #31) when he supervised the Basic Food Preparation 002 labs. To the extent that the Union relies on the student evaluations, the College reminds us that Prof. Kerr prepared the marking outline. We are reminded further that it is broken into one mark increments, such that the lab marking done by Mr. Hersey, it is argued, is in the nature of a routine "yes/no" function with very little scope for subjectivity. As for the final exam, we are reminded that Mr. Kerr set the exam and that even though Mr. Hersey assessed one half of the class, all plates were brought to the front and any student appeal from the assigned mark would have been in the hands of Prof. Kerr. It is the position of the College that Mr. Hersey's involvement in evaluation and marking is not sufficient when considered within the full range of his responsibilities, to bring him within the professor classification. The College submits that when the core function test is applied, the claim of the Union for inclusion within the professor classification must be dismissed. The Union reiterates that absent any evidence to support the College contention that it intended to use a technician to oversee the Basic Food Preparation 002 lab from the outset, this case must be decided on the basis that this work was initially assigned as academic and that the work has not changed. The Union reiterates that in circumstances where it is admitted that Mr. Hersey, working as a technician, reinforces the weekly demonstration, answers students' questions, demonstrates the butchering of meat, the safety precautions with respect to knives and the sanitary handling of food and where he exercises judgement in the evaluation of students, it must be found that he performs 13 within the core functions of the professor classification. We are reminded that no single professor is required to perform the full range of functions for that position. The Union asserts that Mr. Hersey performs within part (b) of the classification def'mition for a professor and as such must be found to fall within that definition. Finally, the Union reiterates that, at the very least, Mr. Hersey falls within the classification definition for an instructor within the academic bargaining unit. Decision The Union emphasis upon the placement of the legal onus in this case is somewhat misplaced. Firstly, these are cases that very rarely, if ever, are decided on the basis of the legal onus. Rather, a comparative analysis of the duties and responsibilities of the challenged job relative to the pertinent job descriptions and/or scope clauses usually decides the matter on the merits. Secondly, as a matter of law, except in discipline cases, the legal onus is always upon the party that asserts a breach of the collective agreement. This is not to say that the evidentiary burden may not shift between the parties. And thirdly, the awards relied upon by the Union speak to situations where, on the basis of a change in duties and responsibilities, a job that is within the bargaining unit is removed. In these situations, the inquiry centres on whether the change in duties and responsibilities initiated by the employer is sufficient to remove the job from the bargaining unit. In this case, it is readily acknowledged that this job has not changed. Rather, the College, without a change in duties and responsibilities, has removed this job from the academic bargaining unit and placed it within the support staff bargaining unit where, it maintains, it properly belongs. Apart altogether from Mr. Hanwell's 14 explanation, the essence of the College's position, and the basis upon which this matter must be decided, is whether, on a core function analysis, this job, as it has been performed from the outset, falls within the professor classification as is claimed in the grievance. We reiterate that in an interim award datedNovember 20, 2002 and for the reasons set out therein, we determined that on an expansive reading of the grievance, the issue that we were empowered to decide was whether the work in question is work within the professor classification. We rejected the suggestion that under this grievance we could decide if the work fell within the instructor classification. We were careful to note that "although it may be the subject of a separate grievance, it is beyond our authority to decide if this type of work is within the instructor classification." Against this backdrop, we turn to the core function analysis that must be the linchpin to our determination (see re: Fanshawe College of Applied Arts and OPSEU Union Policy Grievance re: Support Teaching in Tourism and Hospitality File No. 96C008 (August 20, 1996) unreported (Burkett) and the cases cited therein). Where, as here, the claim is that the work falls within the professor classification, the necessary starting point is the job description for that classification. Having said this, it must be emphasized that in order to understand what it is that separates a professor from an instructor, reference must also be had to the instructor job description. As will become apparent, an instructor performs only a single component of the professor job, such that it cannot be that a person who performs only that component of the professor job brings him/herself within the professor's job description. Under the classification definition for a professor, an incumbent has three major responsibilities: the design/revision/updating of courses (which includes consulting with 15 faculty members, defining and validating course objectives, specifying or approving learning approaches, developing individualized instruction and selecting texts and learning material); the teaching of assigned courses (which includes ensuring student awareness of course objectives and evaluation techniques, carrying out scheduled instruction, tutoring and academic instruction, providing a learning environment and evaluating student progress and achievement); and the provision of academic leadership (which includes providing guidance to instructors relative to teaching assignments and participating in the work of curriculum and other consultative committees). Under the classification definition for an instructor, that 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." Indeed, the description of these duties within the instructor job description mirrors part (b) of the professor job description. Clearly, therefore, it cannot be that someone who performs only this work (which comprises the entirety of the instructor job) falls within the professor classification. If this was so, there would have been no need to provide for a separate and distinct instructor classification. Accordingly, notwithstanding the position of the Union that an individual cannot be required to perform the full range of the duties and responsibilities of the professor classification in order to fall within that classification, an individual must be responsible for more than just the duties of a professor that are mirrored in the instructor job description, i.e. ensuring student awareness of course objectives, regularly scheduled instruction, academic counselling and evaluation and assessing students' work, if he/she is to attain that classification. In other words, the core functions of a professor 16 encompass the teaching of assigned courses and, in addition, the design/revision/updating of courses and the provision of academic leadership (as specified) and that it is the latter that separates a professor from an instructor. The evidence before us establishes that Prof. Kerr designed the Basic Food Preparation 002 course. He selected the text, selected the recipes, prepared the course outline and identified the learning objectives. He teaches the course by providing a weekly two-hour demonstration related to various learning outcomes. He established the evaluation methods and the marking scheme. Finally, he gives instruction to the technicians who operate the labs and generally supervises their work. Clearly, he falls foursquare within the classification definition for a professor. Just as clearly, those who are presently technicians, doing what Mr. Naylor did and Mr. Hersey does, do not. Even assuming without finding that they provide instruction within the instructor classification definition, they do not perform duties and responsibilities related to the design/revision/updating of courses as defined in the classification definition for a professor nor do they perform duties and responsibilities related to the provision of academic leadership as defined in the classification definition for a professor. Accordingly, it cannot be found that they fall within the professor classification de£mition and, therefore, this grievance must fail. This finding is made in the knowledge that the persons presently assigned to the Basic Food Preparation 002 lab as technicians generally supervise the labs to which they are assigned. These labs are developed to allow students to practise the recipes and techniques they are taught by Prof. Kerr in the weekly demonstration lesson. In this capacity and having been advised as to the functions technicians are not to perform, they, under the general direction of Prof. Kerr, provide some general instruction, answer 17 student questions, demonstrate the cutting of chicken and pork and the filleting of salmon, the safe use of knives, proper fire safety procedures and the correct food storage and sanitation procedures, grade students from a predetermined marking scheme under various headings, assist with the taking of the final exam by providing a grade to one half of the students, compute the students' final grade based on a predetermined formula of 60% for the weekly labs and 40% for the final exam and, finally, advise Prof. Kerr of any students who are struggling. In the context of this case, these duties may or may not be sufficient to bring these technicians within the instructor classification definition. This is not the issue before us. Accordingly, we make no finding in this regard. Having regard to all of the foregoing, this grievance is hereby dismissed. Dated this 8th day of December 2003 at the City o~,~rontla,~ KEVIN BURKETT I Dissent "John McManus" JOHN MCMANUS - UNION NOMINEE "Robert Gallivan" I Concur ROBERT GALLIVAN - EMPLOYER NOMINEE 18