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HomeMy WebLinkAboutUnion 07-03-23IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE - AND — 0.P.S.E.U. (UNION GRIEVANCES — 624201, CONT 01- ACADEMIC) Before: Susan Tacon, Chair Ron Davidson, Union Nominee Ann Burke, Employer Nominee Appearance: For the Union: Peter Shklanka, Grievance Officer Sherri Rosen, Local President For the Employer: Robert Little, Counsel Jim Gamer, Director, Human Resources Nicole Perrault, Human Resources Officer Kathleen Adams, Chair, Dental Programs Donna Cunningham, Dean, Health & Community Studies THIS MATTER WAS HEARD IN THOROLD ON THE FOLLOWING DATES: JUNE 13; SEPTEMBER 12; OCTOBER 20 AND 31, 2007 1 DECISION This arbitration concerns the classification of work performed by Peggy Gordon in the Fall 2005 and Winter 2006 sessions. It is the assertion of the union that the work in question properly falls into the academic unit, rather than the support staff unit; the employer rejects that proposition. Technically, two grievances were filed, although both raise similar challenges to the classification of that work. Amongst the several remedies claimed were declarations that the collective agreement had been violated and the reclassification of Gordon as a sessional academic employee. There was no objection to our jurisdiction to hear and determine the grievances. As well, the parties agreed that the two matters be heard together. The main witness was Gordon. Another witness, also called by the union, Irene Sebastianelli, began her testimony. However, the parties agreed to certain factual stipulations, noted infra, which obviated the need for her evidence. As well, documentary material relating to the course content and Gordon's schedule was filed in evidence. Credibility was not seriously in issue. While little of the evidence was in dispute, what divided the parties were their respective views of that evidence and the applicability of various articles in the collective agreement. As the incumbent, Gordon was advised of her rights to participate in the proceedings. Further, as the position claimed was currently in the support staff unit, notice of the hearing was given to the president of that unit, whom we were advised declined to attend. Having considered the testimony, in the context of the documentary material, it is next appropriate to set out our factual findings. In that regard, it is our intention to summarize that material rather than recount the factual findings in any great detail. FACTUAL FINDINGS It is first useful to sketch the program structure and Gordon's background at the College. The relevant programs are Dental Assistant and Dental Hygiene in the Health and 2 Community Studies Division. The relevant courses are: Dental Radiography I (DENT1101) - two hours of theory and two hours of labs; Dental Biomaterials I (DENT1124) - one hour of theory and two hours of labs; Dental Radiography II (DENT1201) — one hour of theory and two hours of labs; Dental Biomaterials II (DENT1224) — one hour of theory and two hours of labs. Historically, there was no dispute that the College had employed "Teaching Masters" (now termed "Professors") to provide both the theory and lab components. Commencing in the Fall 2005 session, the College adopted a different staffing model wherein certain of the labs were assigned to the support staff bargaining unit, specifically to Gordon. Thus, in the Fall 2005 term, Gordon was assigned as support staff, Technologist B, to three sections of labs in Dental Radiography I (DENT1101) and three sections of labs in Dental Biomaterials (DENT1124). It was agreed that Gordon was only assigned those lab components; the lecture component in DENT1101 was taught by Sebastianelli and in DENT1124 by Ruth McMullan. Both McMullan and Sebastianelli are in the academic bargaining unit. In the Winter 2006 session, Gordon was assigned as support staff to three sections of Dental Radiography II (DENT1201) and three sections of Dental Biomaterials II (DENT1224). Again, the lecture components were taught by Sebastianelli and McMullan, respectively. Gordon testified at some length about the dental hygiene and dental assistant programs, course requirements, similarities and differences. While that was of assistance in understanding the context of the assignments at issue, that testimony need not be recounted herein. Gordon became an employee of the College in 1992, first as a part-time technician for approximately six years and then as a full-time technician. Her classification was a "Technician C", pay band 9. Her duties were primarily in the clinic. Prior to the Fall 2005 term, Gordon was approached as to whether she was interested in a pilot project involving support staff conducting certain labs formerly assigned to faculty. She agreed; her position was reviewed in light of the additional responsibilities and reclassified to a 3 "Technologist B", pay band 10. Essentially, certain labs were added to her previous duties as a Technician C, although this will be addressed further infra. Gordon has also taught on a part-time basis at the College, initially, in the Continuing Education Department. Then, in the 1997-98 academic year, she was employed as a sessional faculty member; her courses included Biomaterials and Radiography (and the labs associated with both courses) for students in the dental assistants program. After her year as a sessional, Gordon returned to her Technician C position but continued teaching on a part-time basis in the dental assistants program and, also, upgraded her qualifications to include a Teaching Adults Certificate. In the Fall 2005 session, in addition to her responsibilities as a Technologist B, she taught Clinical Placement (DENT1113); in that latter role, she was classified, and paid, as a part-time faculty member. Likewise, in the Winter 2006 session, Gordon continued to teach part-time in addition to her duties as a Technologist B. Filed in evidence were excerpts from the CAAT Support Staff Job Evaluation Manual. This document is the product of the Joint Classification Committee (O.P.S.E.U. and the Colleges) on a province-wide basis, for various job families. Of note herein, is the job evaluation for the classification "Technologist B" in the support staff bargaining unit. It was acknowledged by the parties to this arbitration that, in the support staff collective agreement, a job evaluation system has been negotiated, including guide charts describing the duties and responsibilities that support staff can perform in the various job classes. These guide charts are then used to evaluate positions in the support staff unit, with respect to classification and pay band. Excerpts from the Technologist B guide chart are usefully recounted at this juncture. Under "Summary of Responsibility", the chart notes that: "Incumbents provide technical expertise of a specialized nature to faculties, administrative areas and students, using independent judgment to determine services and methods required to meet user needs". The section "Typical Duties" reads as follows. "* Designs and/or develops equipment, systems, facilities, materials, etc. to meet user output requirements. *Plans, organizes and conducts experiments and demonstrations explaining correct procedures and theoretical principles involved. *Evaluates equipment and other resources and makes recommendations prior to purchases. *Controls supply inventories and budgets. *May assist in student evaluations in relation to learning activities in which the Technologist B takes part. Finally, the section "Independent Action', is usefully set out. "Job duties are performed in accordance with procedures and past practices which may be adapted and modified to meet particular situations and/or problems. There is considerable freedom to act independently with Supervisor input or verification when requested." Gordon testified in detail about her duties in the clinic, as a Technologist B. These may be briefly recounted with reference to her Technologist B job evaluation position summary. Gordon, essentially, is responsible for ensuring the smooth functioning of the physical operation of the dental clinic for all preclinical and clinical activities, such as, dispensing, sterilization, infection control and patient record keeping; the work locations included the dental lab, plaster and grinding room and radiography. In that regard, she scheduled part-time technicians and receptionists; recruited dentists to work with students; carried out various administrative duties; repaired equipment and/or scheduled service technicians; handled the monies generated from patients and followed up on delinquent accounts. The clinic enables the students to work with patients under the supervision of, and/or assisting, dentists, after learning the basic skills in a clinic setting but in the absence of patients and dentists. As stated earlier, Gordon was responsible for the lab components in Dental Radiography I and II and Dental Biomaterials I and H. In that role, she instructed the students in the necessary skills, including mixing dental cement, making bleach trays and mouth guards, 4 5 proper placement of x-ray machines, placement of film, processing of film, suctioning water, and such like. Again, Gordon testified in some detail about these skills, which only represent a portion of the topics covered in the lab. Neither that detail, nor a more fulsome listing of the material dealt with need be set out in this decision. Of greater import, however, is that Gordon was responsible for evaluation of the lab assignments. The lab component typically amounted to 50% of the student's grade; the remaining 50% comprised the student's evaluation in the theory component taught by faculty. Some lab assignments are included in the Student Work Book accompanying the course text. Others are stand-alone, such as, the Bitewing Hand-In and Dental Radiography Hand-In (Full Mouth Series: Paralleling Technique). Gordon also took attendance and would meet with students where there were difficulties. It should be noted that Gordon's labs only involved dental assistants. In the Fall 2005 and Winter 2006 terms, labs for dental hygienist students continued to be conducted by faculty, including Sebastianelli and Carol Barr-Overholt. Gordon testified as to her relationship with the faculty teaching the theory component of the labs for which she was responsible. Gordon followed Sebastianelli's schedule with respect to the latter's labs for the dental hygienist students. Gordon testified that Sebastianelli stated that she did not have to follow that schedule but, in Gordon's view, as the dental assistant and dental hygienist students were both attending the same lecture, it made sense to adhere to the same lab schedule. With respect to McMullan, Gordon said that both worked together and she tried to coordinate the lab content with what was covered in the lectures, as far as possible. With respect to gypsum products, for example, it was necessary to introduce the topic in the lab so the students could work with the material since that topic would be addressed in the lecture three weeks into term. McMullan agreed with Gordon's introduction of that material in the lab. As well, Gordon helped prepare the course information sheets for Dental Biomaterials (DENT1124) and II (1224) together with McMullan. Gordon also testified that the marking scheme for lab assignments in the latter course was modified somewhat as a result of discussions with McMullan. 6 Union counsel did not pursue a line of questions regarding a comparison of Gordon's assessment techniques in Clinical Placement, where she was classified and paid as a part- time faculty member, and her labs as a Technologist B, given the College's position that Clinical Placement need not be given by faculty. In that regard, it should be noted that union counsel was not conceding that such reassignment would be proper. It is simply that this fine of questions would not be of assistance in the instant case. In cross-examination, Gordon agreed that she was involved in the drafting of the job evaluation form which resulted in her reclassification to a Technologist B. The evaluation form assigns "guesstimates" of the percentage of time associated with various activities, as set out therein. Gordon conceded that 30% of her role as a Technologist B with respect to the clinic directly adopted the job description from her Technician C evaluation. As well, other duties as a Technologist B likewise largely reflected her former responsibilities as a Technician C. The duties related to the labs comprised roughly 35% of her Technologist B duties; it is those responsibilities that raised the evaluation from the Technician C to the Technologist B rating. It is only those responsibilities which had previously been carried out by faculty. The Technologist B evaluation characterizes her duties in the labs as: preparing and demonstrating the prescribed skills as taught previously by professors in an academic setting, including explaining the correct procedures and coaching where necessity; liaising with course professor regarding student progress, currency and appropriateness of course content; and, assisting faculty with the assignment of evaluations related to each student's lab performance. Gordon also acknowledged in cross-examination that the marking scheme and criteria were developed by faculty and, although she is responsible for evaluating students in the labs, she does not have the authority to disregard the established marking scheme and criteria. Similarly, the text and workbook she referred to must be followed unless the materials used were different and, hence, changes were needed. She agreed that the marking scheme was so structured that the students could readily evaluate themselves, 7 and were often asked to carry out such self-evaluation. With respect to her interaction with faculty, Gordon agreed that she had more teaching experience than McMullan. While both worked collaboratively, she admitted that it is the faculty member who ultimately makes the decision if there is no agreement. Likewise, faculty have the ultimate authority to determine the order in which various topics are scheduled in the labs. As to her introduction of gypsum products before that topic was covered in the lecture, Gordon agreed that her involvement related solely to the practical use of the product, not the theoretical content. Finally, she acknowledged that support staff, unlike faculty, cannot engage in academic counselling of students. In redirect, Gordon stated that, while in theory McMullan could override her, that had never actually occurred. She and McMullan had reviewed the course information sheets together as she (Gordon) had taught the course in the past. SUBMISSIONS Union counsel reviewed the evidence in support of his submission that Gordon's lab assignments should properly fall within the academic bargaining unit. Further, it was argued that the work in question fit within the definition in the relevant statute. He contended that the employer bore the onus of establishing a change in the core functions to justify the reclassification of the work into the support staff unit. In particular, counsel noted that, in the past, the work in question had been performed by those within the academic bargaining unit. While Gordon's credibility was not challenged, it was submitted that the arbitration board should not be swayed by her agreement to the job description of a Technologist B. Moreover, it was suggested that the job description was not of great assistance, given its broad language. In the alternative, the job description, if accurately summarizing Gordon's work, must fall within the academic unit. Counsel argued that Gordon's performance in the lal)s should be characterized as "teaching" in the circumstances and reviewed the evidence in that regard. As well, enough of Gordon's other duties outside the lab were characterized as "academic" so that her academic duties, in total, were sufficient to warrant her placement in the academic bargaining unit. 8 Cases cited: Loeb I.G.A. Southgate (1990), 12 L.A.C. (4th) 392 (Fraser); Fanshawe College, unreported, June 24, 2005 (Mitclmick). Employer counsel reviewed the jurisprudence as establishing several principles. First, the proper analysis to be utilized with respect to Gordon's duties was the core function "best fit" approach. In that regard, it was also appropriate to employ a quantitative approach with respect to the percentage of work which might be characterized as "academic" or "support". The core function analysis was not precluded by the statutory framework. In that process, there must be regard to the Class Definitions in the academic collective agreement and to the support staff guide charts. The entire job must be considered in the context of the entire Class Definitions and of the guide charts. Reference to the guide charts in cases where there was a dispute as to whether the work fell within the academic bargaining unit was specifically endorsed in the jurisprudence. It should be recognized that a range of duties and responsibilities may be shared by both the academic and support staff bargaining units. Finally, the fact that certain work was formerly done under the academic collective agreement did not preclude the performance of that work by support staff. Several cases were noted as reflecting that specific proposition. In the context of these principles, counsel reviewed the evidence in the instant grievance. With respect to onus, it was asserted, first, that there is no case law in the College sector which would place the onus on the employer, as union counsel contended. In any event, recourse to onus would not make a difference in this case as the facts warranted a conclusion that Gordon's duties and responsibilities appropriately fit within the classification of a Technologist B in the support staff bargaining unit. Thus, counsel sought the dismissal of the grievance. Cases cited: Fanshawe College, unreported, December 23, 1988 (Samuels); Fanshawe College, unreported, November 28, 1989 (Brent) [referred to as "Conley grievance"]; Fanshawe e, unreported, May 9, 1990 (Brent) [referred to as "Vint grievance"]; Georgian College, unreported, October 17, 1990 (Carter); Fanshawe College, unreported, June 18, 1991 (Brent) [referred to as "Pom.mer grievance"]; Mohawk College, unreported, May 15, 1997 (Howe); Fanshawe College, unreported, August 20, 1996 9 (Burkett) [referred to as "Bond grievance]; Niagara College, unreported, March 26, 1998 (Swan); Fanshawe College, unreported, April.21, 1999 (Devlin); Fanshawe College, unreported, (Burkett) [referred to as "Major grievance"]. In reply, union counsel sought to distinguish those cases referred to by employer counsel, particularly emphasizing Gordon's responsibilities in the lab without a supervisor present and her collaborative work with McMullan. Finally, it was argued that Gordon, in fact, carried out duties beyond those outlined in the job description, especially in respect of student evaluations. DECISION The cases referred to by counsel have been carefully reviewed. In our opinion it is not necessary to canvass that jurisprudence in detail. For convenience and to avoid confusion, the various cases involving Fanshawe College are referred to by the arbitrator's name, except where further reference is required to distinguish the several decisions by the same arbitrator. In those instances, while the grievances are formally filed as "union" and/or "policy" grievances, the reference is to the individual in the support staff bargaining unit whose work, it was alleged, should be within the academic unit. One matter should be addressed at this juncture. Union counsel asserted that the arbitration board had no jurisdiction with respect to the support staff collective agreement. It is our view that we are not taking jurisdiction under the support staff collective agreement. We are, however, entitled to consider such documentation as the Technologist B guide chart and the specific Technologist B job description in assessing the merits of the issues we are mandated to determine, namely, whether the assignments to Gordon which are challenged by the union must fall within the academic bargaining unit, as the union submits. We need deal no further with this jurisdictional point except to note that our opinion is consistent with reference to such documentation in several of the cases to which we were referred: Fanshawe College (Conley grievance), supra; 10 supra; Fanshawe College (Vinet grievance) supra; Fanshawe College (Devlin) supra; Fanshawe College (Major grievance), supra; Fanshawe College (Bond grievance), supra. Where the appropriate bargaining unit classification is in issue, the approach adopted in the jurisprudence has focused on the "best fit" of the "core functions" of the duties associated with that position into the academic or the support staff bargaining unit: see, generally, Fanshawe College (Conley grievance), supra; Mohawk College, supra; Fanshawe College (Major grievance), supra; Niagara College, supra. That approach has been fleshed out in various settings in the cases cited by counsel. Indeed, the case law emphasizes that the determination in each case must reflect that specific factual context The analysis has both qualitative and quantitative aspects. For example, in Georgian College, supra, the position of Co-operative Education Consultant included student counselling, while important, only as an ancillary component, in contrast to the core function of locating suitable job openings in the workplace and maintaining contact with employers during the period of the work experience. The admittedly academic nature of the ancillary component was not sufficiently substantial to warrant inclusion of the position in, the academic unit. To similar effect was the analysis in Niagara College, supra, where the academic functions were characterized as "vestigial" to the core functions. In contrast, the quantitative or proportionality test was satisfied in Fanshawe College (Mitchnick), supra, so as to warrant a conclusion that the Learning Strategist position more closely fit within the scope of the academic unit position of "Counsellor" than in the support unit. Further, the jurisprudence acknowledges that there may well be significant overlap in the duties which may be carried out by members of the academic and support staff bargaining units. As noted in Fanshawe College (Pommer grievance), at p. 31: "Because a legitimate function of support staff is to support the work of academics, it is inevitable that at times members of both groups may quite properly be doing exactly the same thing without in any way performing the core function of each other's job." 11 That decision, at p. 33, also cautions that "when determining whether or not a position falls within the class definition of Teaching Master it is necessary to examine the entire job in the context of the entire class definition. To isolate one aspect in an environment where there is recognized to be overlap in duties is to distort the classifications". Moreover, the fact that a function was formerly carried out by individuals in the academic unit does not guarantee that such work cannot be reassigned to the support staff unit. In that regard, the analysis in Fanshawe College (Pommer grievance) aptly notes, at pp. 31-32, that: "...the question before us is not whether the job has been properly classified using the criteria appropriate for the support staff unit, but whether or not the core function of the job is teaching. For our purposes, we will make no assumption about the job's classification, but will examine it to determine if it is in substance a teaching job". In the instant case, we do not consider Gordon's classification as a Technologist B, of itself but, rather, whether or not her duties are "in substance a teaching job", either as a "Professor" (formerly termed "Teaching Master") or "Instructor" according to the Class Definition of each position in the academic collective agreement. The remaining Class Definition of "Counsellor" was not asserted to be relevant. Of particular import for the instant case are the several decisions cited to this arbitration board in which the academic unit claimed work formerly performed within that unit but subsequently transferred to a Technologist B (or Technician B) in the support unit: Fanshawe College (Vinet grievance), supra; Fanshawe College (Conley grievance), supra; Fanshawe College (Devlin), supra; Fanshawe College (Major grievance), supra; Fanshawe. College (Bond grievance), supra. At this juncture, the following passage from Fanshawe College (Vinet grievance), supra, at p. 26, is usefully recounted. "It is impossible not to be sympathetic with the Union's position to some extent. On the surface this can be made to look like a case where the College has replaced a member of 12 the academic bargaining unit with a member of the support staff bargaining unit. However, when the evidence is examined it is clear to us that, although the Technologist B does some instruction, what he does is not sufficient to place him within the class definition of Teaching Master. It must be remembered that classifications are not watertight compartments, and in any situation there are bound to be some overlapping functions. The mere presence of overlap in and of itself does not mean that there is any improper classification or work assignment" In each of the five grievances just referred to, the arbitration boards therein concluded that the core functions did not warrant a conclusion that the position properly fell within the academic unit. In each; there was a recognition that the duties of the Technologist B (or Technician B) overlapped with those of a Professor or Instructor and, indeed, at times the duties were identical. What distinguished the Technologist B (or Technician B) were the core functions of the position, the proportion of duties of an academic nature compared to the overall complement of responsibilities and the absence of significant academic functions. Each decision will be touched on briefly. First of the Fanshawe College cases cited, and referred to with approval thereafter, was the Conley grievance. There it was concluded that the core function was to administer all aspects of the lab, including demonstrating to students and instructing them in the practical application of the material covered by the faculty in the course. The individual neither taught theory nor was responsible for the formal evaluation of the students' progress, although he did convey to the instructor his assessment of the students' progress in the lab. The Technologist B classification in the Job Evaluation Guide Chart was reviewed; it was concluded that the duties with respect to instructing students were recognized as appropriate to that category. In the Vinet grievance, the setting was the machine shop. It was determined that the core function of the Technologist B was the responsibility for the use and acquisition of the equipment for the shop. Even though the individual spent considerable time interacting with students about their work in the same manner that a Teaching Master would assist a student having difficulty and even though the technical teaching in question was difficult to differentiate between curriculum instruction and proper use of the equipment, the 13 arbitration board was satisfied that the instructional aspects of the work were insufficient to warrant placement in the academic unit. At issue in Fanshawe College (Bond grievance) was the Technologist B who was responsible for the kitchen attached to a restaurant in the Tourism and Hospitality Division. The arbitration board was not persuaded that the interaction with students in the kitchen setting in the absence of the Professor altered the characterization of the position. Of greater importance were the following: no responsibility for any classroom instruction, for covering the predetermined curriculum, for ensuring awareness of the course objectives, for the instructional approach or evaluation systems, or for the evaluation of students (although some input was given). In Fanshawe College (Devlin), supra, there was recognized overlap in the duties of an Instructor and the Technologist B who worked in the machine shop. However, only some of the duties of the latter position involved interaction with students. Moreover, the type of interactions with students was distinct from the variety of duties of the Instructor classification. Specifically, the Technologist B was not responsible for the overall assessment of students, selecting the appropriate course materials or delivering instruction pursuant to a prescribed curriculum. Thus, the core function analysis did not sustain the assertion that the work in question fell into the academic unit. What is also noteworthy is that it is not the particular characteristics of the individual holding the position but the duties and responsibilities of the position itself In Fanshawe College (Major grievance), supra, the individual who was successful in obtaining the Technologist B job posting had been a Professor within the academic bargaining unit prior to being laid off and, thereafter, had worked as a part-time teacher. Neither her unique qualifications nor her academic experience (as a Professor and part-time teacher) were relevant to a determination as to the proper characterization of the Technologist B position. On a core function analysis, it was concluded that the duties and responsibilities were consistent with those of a Technologist B in the support staff unit. 14 The parallels between the Major grievance and the instant case in that regard are striking. Gordon held a sessional appointment in the academic unit and continues to teach as a part-time faculty member. That the current faculty member in. the course for which Gordon conducts the labs works with Gordon collaboratively is not unexpected in the circumstances. However, as Gordon conceded, it is the faculty member who has the ultimate authority to make the decision if there is no agreement, including the ultimate authority to determine the order in which various topics are scheduled in the labs. The students undoubtedly benefit from Gordon's academic background and experience. But what is determinative of the issue before us is not her specific background but whether her duties and responsibilities as a Technologist B are "in substance a teaching job". We next turn, in more detail, to the facts of the instant grievance in the context of the aforementioned jurisprudence. From the union's perspective, what has happened is the transfer of work from the academic bargaining unit to the support unit. We echo the comment in Fanshawe College (Vinet grievance) noted earlier in that regard but the focus must be on the core functions of the Technologist B position, as set out in the job evaluation and as confirmed by Gordon in her testimony. Prior to the Fall 2005 session, Gordon was a member of the support staff unit, classified as a Technician C. What changed was the addition of responsibility for certain of the labs formerly assigned to faculty. In light of those additional responsibilities, her position was reclassified as a Technologist B. There is nothing novel about the assignment of lab duties to a Technologist B, as noted in the cases cited above. We adopt the reasoning in those cases and the applicability of those analyses herein. In our view, Gordon's responsibilities in the lab are akin to the assignments in those cases. Gordon prepares and demonstrates the prescribed skills relevant to the theory taught by the Professors in the lectures. Gordon explains the correct procedures and coaches where necessary but does not teach the theoretical content. Nor may Gordon, unlike faculty, engage in academic counselling of students. That Gordon functions in the lab without a Professor present is similar to the circumstances in Fanshawe College (Bond grievance), supra; the arbitration board therein 15 did not regard this as determinative, carried out by faculty members, and, members, does not derogate from the to a Technologist B. The overlappin acknowledged in the jurisprudence as As well, the lab component of Gordo 35% of her time; the remainder reflec Acknowledging that these percentage that the lab work itself falls well belo it is only Gordon's lab assignments w academic unit. Certainly Gordon's d program. Nonetheless, the lesser pro entire scope of her responsibilities that Gordon's work as a Technologist r do we. The fact that the duties were previously deed, some labs continue to be assigned to faculty ropriety of the assignment of the labs in question of duties, such as in the instant case, has been of uncommon. 's duties and responsibilities comprises roughly functions carried out by her as a Technician C. are "guesstimates", it is nonetheless noteworthy half of her time. And, it must be emphasized that ch were previously carried out by faculty in the es in the lab are important to the academic rtion of time spent in the labs in the context of the er attenuates the strength of the union's assertion is properly within the academic unit. One aspect of Gordon's duties appe responsibility for the grading of the considered the potential impact of this First, we note that the marking schem although Gordon is responsible for ev authority to disregard the established scheme and criteria were so structur and were often asked to carry out such even if the grading in question is reg component of her position fails to sa the time involved is not sufficiently su responsibilities, to justify the inclusio not to be present in the cases cited, namely, her dents' performance in the labs. We have carefully ction on the propriety of the work assignment. and criteria were developed by faculty and, uating students in the labs, she does not have the arking scheme and criteria. Further, the marking at the students could readily evaluate themselves elf-evaluation. Lastly, and of critical import, ed as an function of an academic nature, this the quantitative or proportionality test. That is, stantial, in the context of her overall duties and of her position in the academic unit. 16 Thus, it is our conclusion that the duties assigned to Gordon as a Technologist B are appropriately within the support unit. We are not persuaded that Gordon's duties are "in substance a teaching job" akin to Professor or Instructor in the Class Definitions. While the issue was raised as to which party bore the onus of proof, there is no need to formally rule on this point as we are satisfied that the evidence clearly establishes that the assignment of the labs in question to Gordon properly falls within the scope of the Technologist B position in the support staff bargaining unit. Finally, we would reiterate our view that the students undoubtedly benefit from Gordon's academic background and experience as a part-time faculty member and former sessional appointment. Our determination that her assignment as a Technologist B in the support staff unit is appropriate on a core functions analysis in no way detracts from that academic background and experience. For the foregoing reasons, the grievances are hereby dismissed. DAZED this March 23, 2007 Susan Tacon, Chair "I concur" Ann Burke, Employer Nominee "Addendum/Dissent Attached" Ron Davidson, Union Nominee Addendum ► Dissent Based on the evidence of the incumben Peggy Gordon, the Union's principle witness, I cannot disagree with the findings of fact, or with the inevitable conclusion that results from findings. Although it must cross one's mind, that the Union expected so what different evidence than what we heard from their witness, there was n contradiction, so the board accepts that evidence as presented, as factual. My disagreement in this Award stems from the weight the majority attributes to the CAAT Support Staff Job Evaluation Manual. As correctly stated on page 4 of this Award "These 'de charts are then used to evaluate positions in the support staff unit with re pect to classification and pay band." Having then said that, we then c of go on to use this support staff guide charts to evaluate positions in the ademic unit with respect to classification and pay band. However, the majority does exactly this s stated on Page 10 of the Award, "We are, however, entitled to consider h documentation as the Technologist B guide chart and the sped c Technologist B job description in assessing the merits of the issues we a mandated to determine, namely, whether the assignments to Gordon whic are challenged by the union must fall within the academic bargaining unit, the union submits." In determining this jurisdictional point, the ajority relies on a number of Awards, including the Burkett Fanshaw liege (Bond Grievance). That Board stated, "The Board, in admitting th Technologist B job description, commented that because support staff an academic staff work side by side and are represented by the same union (al it under separate collective agreements), it must be assumed that the parties put their minds to establishing a demarcation line between the two bargaining units. It must be further presumed that they did not do so a vacuum but rather having regard to the duties and responsibilities o both support staff and academic staff. We are being asked to make a detenpination that requires us to identify the line of demarcation. We ruled therefore, that the Technicians job description, even though falling under the Support staff collective agreement, is relevant to our inquiry." As a former Grievance Co-coordinator anct Negotiations Supervisor at 02.S.E.U., I respectfully submit, that the foregoing assumptions not only are incorrect, but that no evidence exists to t make those assumptions. The academic bar in the producti support staff means of dem no authority the opposite, Staff Colledi through its Jo Understanding the Academic comment on ? Fanshaw Coil must be on the the job evalu fining unit was not involved in any negotiations that resulted n of the Support Staff Evaluation Manual, nor did the rsonnel ever envisage or agree to the manual being used as a tion between the two bargaining units. Further, they had do so, That some Colleges . through their counsel may argue not surprising, but the fact remains, that while the Support Agreement makes reference to the Job Evaluation Manual Classification Committee, there is no Article or Letter of that makes any reference to the Job Evaluation Manual in ollective Agreement.. I must therefore disagree with the ge 15 of this Award, that says, "We echo the comment in (\fillet grievance) noted earlier in that regard but the focus -ore functions of the Technologist B position, as set out in n. and as confirmed by Gordon in her testimony." I respectfully a been, that the warrant inclusi Instructor and within the Tee the Support St mit, that the wording of the Boards finding, should have idence established that the duties assigned to Gordon, do not n in the Academic Bargaining Unit as a Professor or any dispute as to whether or not, her duties fall properly ologist B classification, is a matter between the parties to Collective Agreement.