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HomeMy WebLinkAboutUnion 89-11-28 Lifo {Hereinafter referred to as the College) ONTARIO PUBLIC SERVICE E~LOYEES UNION (Hereinafter referred to as the Union) ~ IN EE ~R OF A UNION GRIEV~CE (OPSEU FILE 89A160) BO~D OF ARBIT~TION: Gall Brent ~drew Shields, College Nominee Jon McManus, Union Nominee ~PEA~CES: FOR THE CO~EGE: Paul Jarvis, Counsel Doug Busche FOR THE UNION: Timothy Hadwen, Counsel Gary Fordyce, Chief Steward Hearing held in London, Ontario on October 11, 1989. DECISION The grievance in this case (Ex. 2), dated 0ctober 21, 1988, is filed by the Union as a Union grievance. It alleges that the College has violated Articles 1, 3, 4, 12, et al. of the collective agreement. The issue, as the parties agreed at the hearing, is whether or not Mr. Jo~ Conley is working as a teaching master and so should be included in the academic bargaining unit. ~ere were no preliminary objections raised to jurisdiction or arbitrability; however, the College raised one cswsaP regarding the appropriateness of a claim for monetary relief for'Mr. Conley in a Union grievance. It was agreed that that matter would be addressed at the end of the case when submissions were heard concerning remedy. 2 Mr. Conley was at all material times classified as a Technologist B under the support staff agreement, and as such, was represented by a different local of the Union. There is in force a collective agreement between the same parties as to this agreement Ithe Ontario Council of Regents for the Colleges of Applied Arts and Technology, and the Ontario Public Service Employees Union) which covers support staff employees at all Ontario Community Colleges. At the outset of the hearing there was some discussion concerning whether the support staff local should be notified of the hearing and have the right to attend. After a short adjournment the board was satisfied that the support staff local had in fact been notified and did not plan to attend the hearing as a party. As already mentioned, Mr. Conley was at all material times employed by the College as a Technologist B. His particular assignment was to work in the Advanced Phase of the Electronics Servicing Techniques Program. That Program is a 48 week post-secondary course of study which is designed to produce "bench ready" technicians; that is, electronics technicians who are able to use the practical tools of the trade and a logical troubleshooting method. The Program is divided into two phases, each of which is 24 weeks long. The second phase is the Advanced Phase, and that is the part with which we are concerned. The Advanced Phase employs someone classified as a Teaching Master, Mr. Noel Peters, and someone classified as a Technologist B, Mr. Conley. Mr. Conley described his job in his own words as being in charge of a lab, overseeing a lab, and instructing. He agreed that the job description form (Ex. 5) correctly s,,mmarized his job duties, with the provisos that the Position Summary had to be read with item 1 under Job Difficulty in order to 3 get a full description of his job and that the percentage totals for the Duties and Responsibilities were difficult to calculate because there was no set pattern to his day and so he might disagree with the percentages shown on Exhibit 5. Those portions of Exhibit 5 which were referred to in his testimony as being descriptive of his job are reproduced below: A. POSITION SUMMARY Under broad supervision of the Chairman, oversees the maintenance and lab demonstration work and assists the Co- ordinator in developing capital purchases. C. JOB DIFFICULTY 1. Provide examples which illustrate the complexity and diversity of the tasks which are assigned to the position. Prepares and revises labs and course modules. Due to constant change in technology, incumbent must stay abreast of new developments in order to deliver up to date information to students. These changes also impact on inventory main- tained. Demonstrates and oversees student participation in labs and hands-on experience in repair. Must be knowledgeable and concise when guiding students. Involved in preparation of audio and video lectures. The list of Duties and Responsibilities as taken from Exhibit 5 are also reproduced below without, for the time being, any percentages concerning time attached to them. The individual duties have been numbered for ease of reference. 1. Develop and implement an ongoing equipment maintenance for the Electronics Ilaboratory equipment). 2. Set-up and conduct electronic lab experiments and provide feedback to the program Co-ordinator regarding student progress. 3. Maintain an inventory of electronics lab equipment and parts and provide advice regarding future equipment 4 replacement needs. 4. May demonstrate proper use of equipment and assist students in solving problems in the operation of equip- ment. 5. Assist Program co-ordinator in developing practice course modules by providing advice on equipment needs, etc. 6. Assist in the development of audio/visual teaching aids. 7. Deal with customers to provide equipment for students to obtain practical experience. The job description assigns an approximate percentage of time the incumbent in the job would spend on those duties in a typical year. They are as follows: #1 - 30%, #2 - 30%, #3 - 15%, #4 - 10%, #5 - 5%, #6 - 10% and #7- no figure apparently given. When Mr. Conley was asked to estimate how much of his time was spent in those duties, he gave the following approximations: #1 - 10-15%, #2 & #4 together - 60%, #3 - 15%, #5 - 10%, #6 - 10% and #7 - 5%. As will be noted, this adds up to between 110 and 115%, and Mr. Conley agreed that it was fair that the appropriate proportional adjustments could be made in order to arrive at a figure of 100%. This would result in the percentage he attached to each duty being reduced. Leaving the job description for the moment and returning to the specifics of the Programme and Mr. Conley's role in it, there are usually about three groups, each made up of from 4 to 6 students in the Advanced Phase. Each group is at a different stage of the Advanced Phase curriculum. The students work in their group and progress through the various modules which make up the course. These modules are made up of units and have an outline of the materials to be covered and the suggested time which will be needed for completion. A typical module can contain references to texts to be read, handouts containing information, audio tapes, lab instructions, references to 5 video tapes which are available, and question sheets, as well as directions about the order in which the materials are to be studied and the labs to be done. The students also have formal theory classes, which are given to the group by the teaching master, Mr. Peters. In addition, Mr. Peters discusses with the students the concepts that they are to learn from the labs when those concepts are not fully set out in the lab instructions. The students are also given demonstrations where the instructions indicate that'certain things are to be done according to the method demonstra- ted. In those cases Mr. Conley performs the demonstrations in which he takes the students through all the steps for all of the points that are to be taken from the lab which the students will later do on their own. The students attend classes Monday to Friday. The hours of instruction are 8:00 a.m. to 2:30 p.m. Monday to Thursday and 8:00 a.m. to 12:30 p.m. on Friday. They get two 15 minute breaks each day and a 35 minute lunch break every day except Tuesday and Friday. On Tuesday there is a 1 hour lunch break and on Friday there is no lunch break. It was Mr. Conley's estimate that approximately 1 1/2 hours per student day is spent in either formal lecture or group discussion. During the day, other than when formal lectures are being given in the classroom, the teaching master is present in the lab along with Mr. Conley. The group discussion is an informal "post mortem" of a lab where either the teaching master or Mr. Conley will meet with the students and discuss with them the results of their lab work. This can be described, without attempting to do justice to the skill and work involved in handling the situation well, as going over the lab sheets with the students to determine if the students are on the right track and pointing them there if they are not. It may also 6 involve demonstrating to the students. A large part of Mr. Conley's day involves interaction with students. He estimated that over half of a typical day would be spent in some combination of demonstrating equipment to students, doing group discussions, answering questions and administering the lab. He included in that latter head things like helping students to connect circuits, to achieve readouts, to appreciate what the readouts were saying, etc. He also indicated that anytime that the students were presented with a concept in the theory part of the course, the concept would be reinforced with a lab exercise. He said that he had to be aware of both the theory and the method in which it was presented in order not to talk over the heads of the students. He also estimated that he spent roughly 15% of his time setting up demonstrations and reviewing the demonstra- tions or labs which were going to be the subject of group discussions. Mr. Conley does not do any formal evaluation of students. He does tell the course instructor his assessment of how the students are progressing in the lab. He also indicated that he gave the students informal encouragement. It was also Mr. Conley's estimate that about 35% of his time is spent in doing clerical duties, ordering, and lab maintenance. Part of the course involves the students in the practical application of the theory and skills which they have learned. Here the students actually repair items brought in by customers who pay for the parts. The students must apply a logical approach to troubleshooting in order to diagnose and repair. They also gain experience in the practical use of the equipment which they have been using in a lab setting. It is Mr. Conley's job to. determine which students to assign to a job; he does this by assessing the nature of the problem with article to be repaired, the course material already covered by 7 the student, and the students' expertise in the lab. When the students are engaged in troubleshooting his involvement with them can range from very little to almost total guidance. During the course of his employment at the College Mr. Conley has received instruction about his job duties from his immediate supervisor, Mr. Prokos, who chairs the Division. He said that he was instructed by Mr. Prokos that formal lectures were not part of his job and that in the course of engaging in 'group discussions he should avoid anything approaching a formal lecture. He said that Mr. Prokos had been shown some of the labs which he helped develop and the data base system he developed to keep track of the progress of work on customer repairs. He also said that he has been told and understands that it is the job of the teaching master to teach theory and that it is not part of his job duties. He also acknowledged that he has been told to adhere to the parameters of his job description. Mr. Conle¥ was shown the Job Evaluation Guide Chart as it relates to Technologists lex. 31. This chart is part of the job evaluation system agreed to by the parties in the support staff collective agreement. The Summary of Responsibility and Typical Duties for the Technologists A and B are as follows: SUMMARY OF RESPONSIBILITY TECF~OLOGIST A Positions incumbents provide assistance to instructors and more senior technologists in the demonstration of basic technical theories. TECF~NOLOGIST B Position incumbents provide technical expertise of a specialized nature to faculties, administrative areas and students, using independent judgement to determine services and methods required to meet user needs. TYPICAL DUTIES TECHNOLOGIST A Prepares and executes routine laboratory experiments showing the relationship between theory and test results. · Modifies standard lab tests as per instruction. · Prepares student lab manuals. · Assists in the development of teaching aids working from given concepts. Demonstrates appropriate use of equipment and facilities. TECHNOLOGIST B Designs and/or develops equipment, systems, facilities, materials, etc. to meet user output requirements. · Plans, organizes and conducts experiments and demonstra- tions explaining correct procedures and theoretical principles involved. Evaluates equipment and other resources and makes recommendations prior to purchase· · Controls supply inventories and budgets. · May assist in student evaluations in relation to learning activities in which the Technologist B takes part. It was his opinion that the Summary of Responsibility for the Technologists A and B when read together was an accurate summary of his job, although he did not believe that it adequately addressed some of the student contact functions of his job. He agreed that the Typical Duties of the Technologists A and B when read together did address all of his job functions fairly accurately, although he considered that it left out what may be characterized as the need to be mindful of the method which must be employed when guiding students· Mr. Conley also wished to state for the record that he played no part in bringing this grievance and that he did not want it to appear that he was 9 trying to 9et something which he did not deserve. He also voiced his opinion that if the grievance were to succeed it would not be in the best interest of either the department or job security in general. He then indicated that despite his concerns his evidence had been as accurate as he could state it. The essence of the Union's position on the non-remedial issue is that Mr. Conley's prime function is to instruct and that it is the College's intention that he should perform this function. It asserted that there can be no doubt that Mr. Conley is teaching and that he is concerned with the students' prog- ress through the course content. The Union conceded that all of Mr. Conley's duties can be fitted into the Technologist B category as described by the charts in the Job Classification Manual (Ex. 3). It also agreed that a Technologist would do some teaching in the course of performing his duties, but that the test to be applied is whether teaching is the core function of the job or an ancillary aspect of it. It suggested that in the context of a course of this sort where the object is to impart practical skills to students, the core of the course is the proper use of equipment and the distinction between course content and equipment use crumbles. It referred us to the decision in Fanshawe Colleqe and OPSEU (Union Grievance 86H25), (1987) unreported (Brent). The College urged us not to lose sight of the fact that in an institution of learning the focus of all who work there is student progress and this is not a concern which is unique to teaching masters. It argued that the same parties who agreed to the academic collective agreement have agreed upon certain job descriptions in the support staff bargaining unit which con- template that the incumbents will take part in the learning process. It also agreed that the principles stated in the Fanshawe case were appropriate, but 10 that it should be kept in mind that they were applied there to a Technician I position, which has a much different function than that of a Technologist B. Its position was that performing the core function of the teaching master job did not make someone a teaching master unless it was also the core function of that person's job. It asserted that where, as here, there is overlap between the duties of differently classified jobs, a qualitative and quantitative analysis of the jobs must be done, and the mere fact of overlap is not determinative', particularly when the parties have agreed in the job descrip- tion that Technologists B do some instruction. It pointed out that Mr. Conley is not concerned with the dissemination or the teaching of theory; his student contact is always in the lab and in connection with the practical application of that theory. It said that the reason for the position is not to dissemi- nate the substance of the course content and his duties lie squarely in those agreed to by the parties as being appropriate for a Technologist B. The College also referred us to Fanshawe College and OPSEU (Rachar Grievance), (1984) unreported (Delisle) and Fanshawe College and OPSEU, (1982) unreported (Palmer). Before proceeding further, we should note that while we recorded Mr. Conley's concerns, there was neither evidence nor suggestion of any pressure of any sort having been applied to him by either of the parties in connection with this case. Having heard his evidence, we are satisfied that it can be relied on as accurate, and that despite any concerns he may have had, he did his best to prevent those concerns from colouring his evidence. He was the only witness called in this case, and both parties relied on his testimony in making their submissions to us. We consider that under the circumstances there is no basis on which we can disregard his evidence in whole or in part 11 and, without any other testimony against which to test it, we are prepared to accept it as being as honest and accurate a portrayal of the situation as he could relate to us. In reaching our conclusion we have considered the evidence along with the submissions of counsel and the authorities cited to us. In the Fanshawe decision in which two members of the current board were involved (supra), the issue involved a Technician I. That classification was one which existed under the old classification system, and which no longer exists. Suffice it to say that the Technician I was then the lowest level within the Technician classification, and the Technician classification as a whole was and is qualitatively different from the Technologist classifica- tion. The Technologist classification is and was higher than the Technician classification. Both parties to this case agree that the case correctly set out the principle that the core function of a teaching master is to teach course content; that is, the "prime function is to be the human instrument of instruction relating to the course curriculum which has been determined by the College" (see page 13). It also recognizes that the time spent by a student in learning and mastering course content is not necessarily teaching time, even though there may be a College employee of some type present (see page 14 generally). There the appropriate distinction was that the Technician I's job was to instruct and assist the students in the use of the computer equipment in the lab and not to have as the prime focus of the job helping the students to master the course content. In that case the computers were the tools of the trade. Where the thrust of a programme or course is to train "bench ready" technicians, as in the matter before us, the proper and appropriate use of the tools of the trade is an integral part of the course. Naturally the 12 student must be taught theory in order to be able to understand why certain things happen or are to be done, and to be able to have a context in which to analyze a problem properly; however, the student must also be taught what to do and how to do it in order to really become "bench ready". It is because of this that neat distinctions between the dissemination of course content and the practical demonstration of matters which are part of the course content may be difficult to make in a particular instructional milieu. Even so, if one accepts 'that the core function of a teaching master is to disseminate course content, it is necessary to try to distinguish between them while acknowledging that both activities are instructional in nature. Here the same parties as to this collective agreement have recognized that Technologists B have a role in the instruction of students. As we read Exhibit 3, that role is related to the demonstration of theory and of equipment. There is nothing in the evidence before us to suggest either that the College ever intended Mr. Conley to do anything but perform duties related to the demonstration of theory and equipment, or that Mr. Conley, with a few exceptions, ever did anything other than perform work related to the demon- stration of theory and equipment. It would therefore be appropriate to conclude, as Mr. Conley himself concluded, that the job as he performed it fits within the Technologist B description. Because of the nature of the course, Mr. Conley and the teaching master can often be doing the same sort of things when they interact with students. For example, they both are available to answer student questions and they both do group discussions. What Mr. Conley is never involved in is the teaching of theory. He is not responsible for the formal evaluation of the progress of students to determine whether their mastery of the course content is suffi- cient to enable them to receive their certificates. His instructional activities are apparently confined to demonstration and to dealing with other aspects related to the practical application of the theory taught. It is not the core function of his job to be responsible for imparting the course content to the student. It is the core function of his job to administer all aspects of the lab, to demonstrate to students and to instruct them in the practical application of the matters covered in the course content. Those aspects of his job which deal with instructing students have been recognized by the parties as being the sort which are appropriate to a Technologist B. It therefore cannot be said that the core function of this job is the same as the core function of the teaching master job. For all of the reasons set out above, the grievance is dismissed. DATED AT LONDON, ONTARIO THIS ~ DAY OF ~~ , 1959. Gail Brent I concur / ~t ~~ ~t/~ Andrew Shields, College Nominee t concur' / dissent ~m~ oc~~C[. Jon McManus, Union Nominee ADDENDUM/DISSENT When considering whether a person performs the work of a teaching master, the findings of fact concerning that person's activities are the decisive matters. In this case, I do not quarrel with the findings of fact, nor with the ultimate conclusion. However I do quarrel with some of the reasoning. Accepting that the core function of a teaching master is to disseminate course content, one is left in this case with the fact that "what to do" and "how to do it", are parts of the course content. Mr. Conley dissemlnate~ "what to do" and "how to do it", and so he performs those core functions of a teaching master. Given Mr. Conley's explicit admission that his job fits within the Technologist B classification, we have to look at whether thi~ fact has any relevance. It does not. The technologist series is a classification scheme for positions within the support staff bargaining unit. As such, the scheme can only help in determining the proper classification for persons who are already properly within that bargaining unit. The classification scheme cannot expand the scope of the support staff bargaining unit, and certainly cannot encroach on the academic bargaining unit. In this ease, the real question is whether Mr. Conley's work falls within the scope of the academic bargaining unit. To answer this question, one must enquire whether his core function is that of a teaching master, and this enquiry properly proceeds without regard for support staff classifications.