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HomeMy WebLinkAboutUnion 00-08-23IN THE MATTER OF AN ARBITRATION BETWEEN: GEORGE BROWN COLLEGE (THE COLLEGE) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (THE UNION) AND IN THE MATTER OF A UNION GRIEVANCE (97G141) BOARD OF ARBITRATION HOWARD D. BROWN, CHAIR SHERRIL MURRAY, UNION NOMINEE R.J. GALLIVAN, COLLEGE NOMINEE APPEARANCES FOR THE EMPLOYER: J. Lynn Thomson, Counsel APPEARANCES FOR THE UNION: Tim Banasik, Grievance Officer HEARINGS IN THIS MATTER WERE HELD AT TORONTO ON JUNE 30, NOVEMBER 16, 1998, JANUARY 12, SEPTEMBER 27, OCTOBER 7, NOVEMBER 8, 1999, APRIL 20, 2000 AWARD 2 The grievance of the Union was filed on February 28, 1997 and is a claim that the College was in violation of Articles 2.02, 2.03 A, Article 6 and Article 10 of the collective agreement applicable to the Academic employees of the College. The Union requests that the College fill a full-time vacancy arising from the resignation of a full-time professor in the Hair Dressing Department and that Union dues be paid from that date. The Board issued an Interim Award dated October 13, 1998 by which it asserted jurisdiction to deal with the grievance on its merits. At the subsequent hearings, the Board received the evidence of the parties concerning the issues raised in the grievance and following the last hearing, the Board met in executive session to consider all of the evidence and submissions of the parties and the preparation of its award. By Articles 2.02 and 2.03 A, the College agrees to: “give preference to the designation of full-time positions as regular…” rather than partial load and sessional teaching positions. By Article 6.02, the College agrees that the general management functions set out in Article 6 shall be in “exercised in the manner consistent with the provisions of this agreement." Article 10 provides for the deduction of Union membership dues from the salaries of all employees that are remitted to the Union each month. In the fall of 1996, Professor Gray, a full-time professor in the Hairstyling Department resigned. The College did not fill that position but initially covered the work requirements with a part-time professor and part-time and partial load Instructors. Employer’s response to the grievance at that time was that the staffing of the program was subject to operational requirements and therefore it had complied with Article 2 by 3 which reference to the full-time position is “subject to such operational requirements as the quality of the programs, attainment of the program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community”. The College relies on the management functions set out in Article 6 to among others, organize its workforce including the determination of complement and to direct its personnel and organization on which basis the College decided not to hire a full- time professor to replace Professor Gray. It is the position of the College however, that the issue is not the application of Article 2 as it concedes that there was sufficient work in the Hairstyling Department to support a full-time position but rather the issue is whether the College correctly hired part-time Instructors in the program rather than filling the vacancy with a full-time professor as the work required by the College fits within the Instructor class definition as set out in the collective agreement and has accordingly properly staffed the program. The College maintained two full-time professors who teach theory in the classroom to the students in the Hairstyling Department and hired part-time and partial load Instructors to assist the students in the salon while they are working with clients. In the salon, the students are supervised by a full-time Professor and the Instructors but who may at some time in the salon be on their own and at other times, a professor is present. The College does not contest the allegation that there are sufficient hours in the department to justify a full-time position but on the basis of the work required by the College, following the resignation of Professor Gray, its position is that the College 4 properly assigned the work to Instructors to deliver programs to the students in the salon using a prescribed format. They have course outlines from the Ministry’s curriculum and a manual containing all the information relating to the courses being taught according to standards which they follow. It was submitted that Instructors teach manipulative skills relating to the techniques for hairdressing. The theory taught by the Professors in class underlines the manipulative skills which the students exercise in the salon where the students are taught hands-on skills to deal with the requirements of the clients in the salon in the presence and assistance of the Instructors. Instructors are under the direction of a Professor but it is not necessary that a Professor be in the salon at all times. Instructors are assigned to a Professor who is available to respond to any required information and is available for consultation as to issues in the learning environment. The Instructors are teachers who can be expected to give appropriate instructions to students which duties overlap with those of a Professor who however, has additional duties which are set out in the class definition. It is the College’s position that the work performed by the Instructors in the salon does not fall into the category of Professor as the bulk of their work with the students is the acquisition of manipulative skills and therefore the proper fit of the work required by the College falls within the Instructor class Definition. Re Fanshawe College and O.P.S.E.U. (Brent, June 18, 1991). The Union submits that the full-time position left vacant by the resignation of Professor Gray should be posted and filled by a full-time Professor to retain the complement of three full-time professor positions in the Hairstylist Program of the College. The Union maintained that the evidence established that there was an on-going 5 requirement for a third full-time professor as the teaching workload remained equivalent with the work required before Professor Gray’s resignation. The operational requirements of the College did not justify the use of partial load or part-time employees. A full-time vacancy should have been posted. The evidence indicated a continuing need for a third professor to deal with the student enrollment which had increased. There was no basis to question the future of the program as indicated in the College reply to the grievance on June 18, 1997. It was not difficult to find employees to deal with the special nature of the course. Both Mr. Hannon and Ms. O’Connor have teaching qualifications and expertise as hairstylists and with colour applications and have years of experience. It is the Union’s position that there is no separation between academic theory and the practical parts of the hairstyling courses as each involve equivalent levels of teaching requiring very specific course outlines where the theory and practical aspects merge. Several of the courses are taught by Instructors by themselves or with other Instructors without the presence of a Professor. These duties go beyond the instruction of manipulative skills to students which is the limitation in the class definition of an Instructor. The course outlines are specific as to the types of things to be taught but not how it is to be done which is the responsibility of the teacher who is required to exercise personal judgement while instructing students as to the complexity involved when working with clients in the salon. The Instructors evaluated students’ progress. The part- time and sessional Instructors did not follow a prescribed teaching format and were not limited to teaching manipulative skills or techniques so as to fall within the class definition of an Instructor but rather their work responsibilities are the same as the work 6 of the Professors who had previously taught both theory and practical courses when there were three full-time Professors in the department. It was submitted that the appointments made by the College evaded the requirements of a full-time position contrary to Article 2, the application of which is essential to maintain the integrity of the bargaining unit. The Union’s position is that the job requires performance of the core duties of the Professor class definition by the teaching of manipulative skills intertwined with the theory so that Instructors are involved in how and why of the hairstyling techniques. Therefore, the Union submitted that the best fit of the work required falls within the definition of Professor. That is the position which became vacant and should be filled through a positing for a full-time Professor. Reference was made to the following awards: Re Sheridan College and O.P.S.E.U. (Schiff, November 6, 1996); Re St. Lawrence College and O.P.S.E.U. (Grievance of Shope) (Weatherill, March 25, 1981); Re St. Lawrence College and O.P.S.E.U. (Grievance of Boone) (Weatherill, August 17, 1981); Re St. Lawrence College and O.P.S.E.U., Grievance of Lubimiv, (Weatherill, August 17, 1981); Re Fanshawe College and O.P.S.E.U. (Devlin, April 3, 1998); Re Cambrian College and O.P.S.E.U. (Simmons, July 25, 1996); Re Fanshawe College and O.P.S.E.U. (Samuels, March 19, 1986). On the basis of the evidence, the Board acknowledges the position of the College that if the required work in the Hairstyling Department is found to fit within the classification of a Professor in the collective agreement, there is sufficient work available for a full-time position as the work which has been performed since the resignation of 7 Professor Gray would require the College to fill such vacancy by a full-time Professor. It is thereby not necessary for the Board to deal with the first submission of the Union as to the application of Articles 2.02 and 2.03 A with which the College does not take issue in these circumstances. What must be determined by the Board is whether the College could assign the work it required to be performed in the Hairstyling Department after the vacancy arose to Instructors. Article 2.01 provides: “The Colleges shall not reclassify professors as instructors except through the application of Article 27, Job Security”. The class definition of an Instructor is: “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 course. The Instructor’s duties and responsibilities include: ensuring student awareness of course objectives, instructional approach, the 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; 8 tutoring and academic counselling of students in the assigned groups; evaluating 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.” In the above definition, there is a specific limitation related to the acquisition of a manipulative skill or technique. In the three awards at St. Lawrence College referred to above, the Boards were dealing with teaching in the health care area and found that the grievors were involved in teaching beyond the acquisition of manipulative skills and were wrongly classified as Instructors. The acquisition of manipulative skills was found to be an important aspect of the job requirements but in the Shope grievance, the Board found that the grievor’s work was not so limited but is -- “surely fundamentally -- directed to the teaching of attitudes, planning abilities, the activation of patients and the performance of nursing care tasks for which manipulative skills required are a necessary but not a sufficient foundation”. In the Boone award, the grievor taught courses in the laboratory and the Union argued that her work was more cognitive than manipulative. The Board found that while teaching of manipulative skills was important, the grievor’s courses went well beyond 9 that and included “instruction in the theoritical basis of job being done and in the evaluation and understanding of test results”. What she taught was not entirely pursuant to prepared courses of instruction or formats. Similarly in the Lubimiv case, the Board found that what was taught by the grievor in Animal Care Technology in laboratory courses was “not merely manipulative skills, that is the techniques of setting up and operating equipment but interpretive skills as well - understanding and evaluating test results as well as determining what tests to run or procedures to follow in the first place”. The Board concluded that her teaching in a “significant and substantial way” went beyond the narrow limitation of the Instructor definition. The College however, has submitted that what is required in the salon where these Instructors are located is the instruction of specific hairdressing skills such as blow and dry, perms, colour application and hair styling which techniques are manipulative by nature and while there is some instructional overlap with the theory which supports these applications which they may explain to the students, the limitation of the acquisition of manipulative skills set out in the class definition applies to the functions required of these employees in providing assistance to students who are learning the hands-on skills while working with clients. The class definition of a Professor is: “Under the direction of the senior academic officer of the College or designate, a Professor is responsible for 10 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 recruitment and selection, time- tabling, facility design, professional development, student employment, and control of supplies and equipment.” 11 Joseph DeFrancesco has been a teacher of the College since 1993 and Co- ordinator of the Hairstyling Department since 1994 and is responsible for the class schedules and timetables for his co-workers. The Ministry of Education determines the number of hours required in the apprenticeship program totaling 5500 hours before a student is allowed to apply for certification. These are blocks of 8 weeks with 20 hours of practical and 10 hours of theory in a week. Until Professor Gray retired, there were three full-time Professors and one part-time at 9 hours per week, each of whom taught several courses and reinforced the theory parts with the practical and taught both. After Professor Gray left in the fall of 1996, she was replaced by a sessional employee, the workload was the same as before and they taught both theory and colour. After Mr. Hannon was hired in 1997 and took over the colouring duties, none of the others taught theory. He said the curriculum has not changed but the hours were increased to 600 in 5 increments. In the day release program, the number of hours remained the same but were extended over a longer period. The Hairstyle program includes both theory which is taught in the classroom and practical which is done in the salon with clients. He said his teaching is not limited in the salon and includes not just the equipment to be used by the students but how to listen to clients, where to start and handle particular heads. He said that theory is taught all the time and is reinforced with the student and client in the salon and it is impossible to separate the theory and teaching in the salon but the employees in the salon do not teach theory. They do not often have small classes with an average intake of 35 students plus 20 in the day release program for one day a week. Their work in the salon depends on how busy they are with the number of clients in the salon at any time. 12 In the basic course there is 1 hour theory and practical, in the advanced course there are 5 hours practical and 3 hours' theory which is the same teaching load that Professor Gray covered and she also helped on the floor with the clients where she taught colouring. In addition to the theory, the 5 days’ schedule for the students indicates work in the salon for three days each week and sometimes, they would work on mannequins to implement the theory being taught in class. Mr. DeFransesco said that he was told when O’Connor and Boyd were hired by the College that they would take direction from the Professor on the floor but was not told the same with Mr. Hannon. He was not aware of how these employees were paid or the difference between an Instructor and Professor. He gave them copies of the text book which would be used and expected that they would become familiar with the text and apply the theories taken from the text book on the floor which would reinforce what the students had been taught. He said he has given instructions to both Professors as well as Instructors to help them out with the students as some had not taught before but he does not have the time to supervise the Instructors. Thomas Hannon was hired in 1997 by the College to teach all facets of hairstyling but especially hair colouring, both theory in class and in the salon where he teaches practical hair colouring. In the salon he worked with other Instructors on colours, perms, cutting and whatever had to be done with the clients. He holds an Ontario Teachers Certificate and has taught for years as well as working as a hairdresser prior to his employment with the College, and holds a certificate of qualification as hairdresser. There is no designation as a colour specialist but he said that a hair dresser who has been 13 doing that kind of work for 5 years or more could be considered an expert. His payroll form indicates that he was hired by the College as an Instructor-Professor and said that he was told that the wage rate is different for the two classes as a Professor when he is in the classroom and as an Instructor in the salon and was subsequently paid two different amounts for different hours. He was not told that he was to take directions from a professor when he was working in the salon where he works along with other teachers and alone with students. He said there is quite a big difference between theory and practice although they are linked and referred to working with strong chemicals which if not mixed properly can cause damage to a client and in the classroom, there are discussions of procedures, while in the salon, he would demonstrate to the students the application of hair colour to the clients to make certain there is no damage to them. They are taught to mix colour with the chemicals using a formula suitable for the client. After he demonstrates the proper way to do the mixing, he would watch the student working with the chemicals to make sure it was applied properly. He said that he was not limited to demonstrations of techniques but was to make certain that the students had help when they needed it and to answer their questions. As well, he demonstrates in the salon the proper way to drape a client for hair colour, selecting proper techniques, mixing the colour with formulas for the chemicals and watches the application and responds to the questions of the students. He also instructs students as to hairstyling, blow dry, brushing, products in the dispensary, equipment, the sterilization of the tools and cleaning the area. Mr. Hannon said that he has been given timetables for each intake of students but the work in the salon is not dictated by that schedule as they must provide the services to 14 the people who come into the salon. The students are used where they are most needed to deal with the numbers of clients, There is no difference in the work required when Mr. DeFrancesco or Ms. Balasca are present in the salon. As he is responsible for hair colouring and if he is very busy, they would help him as would the other teachers. He said that he has not heard other Instructors teaching theory to the students but they follow the theory which is taught by the Professors in class. Mr. Hannon said that it was after he was hired in 1997 that he first became aware that he received two rates of pay depending on the functions he performed and did not recall those notes had been discussed prior to his employment but had continued to work and accepted the two rates which was not an issue with him but he knew the rates referred to the time he spent in class and in the salon. He said that three hours each week he was in the salon were limited to hair colouring. He was not given the Ministry Guidelines to follow but had a text book of cosmetology which he followed very closely. He used a lecture style with direct visual demonstrations to the students and as well, used mannequins to demonstrate how to apply hair colour and dye. After the demonstration, they would go to the salon to practice the methods under his guidance. He tested the students on the context of his lectures and the demonstrations. Some of the tests he had developed and some were already prepared based on the text book. He marked his students on the test results. The theory of chemical mixing was discussed at the classroom and the mixing was done in the salon where they dealt with the actual application of colour. He agreed that this hands-on training involved manipulative skills in the salon where he would show his students how to prepare and use the chemicals for 15 hair colouring. He said that he could teach students the hands on parts of the work without theory but with great difficulty because they must have a sense of why and how they do this work. The application of theory in the salon and what he showed them on the floor would not be much different from what they were told in the classroom. Della O’Connor had a background of work in hairstyling and colouring including employment in Mr. DeFrancesco’s salon in Toronto for 8 years and with that background was hired by the College in 1997. She said at her interview, Mr. DeFrancesco told her of the cutbacks at the College and that it was hiring only Instructors. She was told of the different pay structure between the Instructor and Professor classification and was told that she would not be teaching any theory but would be working in the salon on Mondays, Wednesdays and Thursdays and would be expected to be called in to replace for absenteeism. She would be teaching alone in the salon and was told if any questions arose, she could ask a Professor. On Monday, she taught the student apprentices in the salon on cut, colour, perms, hairstyling, blow drying, curling irons and had to be available to answer the questions from students. She did not feel that they could separate theory from practical in the salon as they go hand in hand with instruction on working with chemicals and colour for the particular clients and said that her teaching would go beyond the demonstration of techniques. She said that Mr. Defransisco was busy most of the time and was not always in the salon and had to answer most of the students questions herself. She said that she took the students through the practical parts all year and was not asked about the students at the end of their term but on the final test, she did evaluate how well they had applied colour or did perms. She was not involved in the development 16 of the tests but taught students what they would be examined on and how to prepare for the tests. She was asked for her own evaluation of the students. In cross examination, Ms. O’Connor agreed that Mr. DeFrancesco had told her that she would not be teaching theory and would be hired as an Instructor to teach in the practical areas while a Professor teaches theory which was the difference in the classifications. She did not teach theory in the classroom at any time and said that theory was taught by Mr. DeFrancesco, principally on cutting and Mr. Hannon on Colour. She was familiar with the text book they used and was instructed to use the text book in the course and was also given a manual of College Guidelines as to how the course had to be taught. As well, Mr. DeFrancesco discussed with her how he taught the course so that she could understand how to do it and the format of the College. She is a colour technician and discussed that subject with Mr. Hannon who checked her answers to student questions to be consistent. She would demonstrate to the students the appropriate way to do perms and colours and how to cut and style hair and to choose the appropriate solutions and would reinforce the theory. The salon had 48 working chairs with an average use of about 15 on any day with 2 students for each chair. Mr. DeFrancesco was not in the salon in the afternoons and clients were allowed in the salon up to 2:00 p.m. to be finished by 4:30 p.m. during which time she worked with the full class. Rosalie Starkey, Manager of Communications and Marketing was in 1997 Chair of the Fashion and Creative Technology and responsible for the Hair Dressing Program and was instrumental in the use of Instructors for this program. It was her decision not to 17 replace Professor Gray with another full-time professor and took into account in that regard that Professor Gray had been on a leave of absence for one year prior to August 1996 during which the Ministry talked of changing the way courses were to be delivered and with reduction in the amount available for training along with the introduction of the day release students for one day a week. This plan of the Ministry indicated as early as 1995-96, that there would be as low as 18 students in the Apprenticeship Purchase Program. The revised intake plan in May 1996 indicated they would be 18 students in February 1997. The Ontario Training and Adjustment Board outlined the future training in the Colleges by letter dated June 11, 1996 for Apprenticeship seat purchases with the Colleges which indicated the changes and reductions with less money for the College. Ms. Starkey replaced Professor Gray with a sessional Professor by contract from September 1st to December 18, 1996 to maintain the status at that time and until the Day Release Program began in January 1997. From that time, the students who would have 240 hours of in-school components would attend school on Mondays so that she had to front load the theory part of the course. Instructors had not previously been used in the program and in her view, three full-time Professors would be more than what would be required for the staffing of this program on the floor. As a result, she decided to hire two part-time Instructors including a colour expert because the Professors’ strengths were not in colour theory. She told the Instructors when they were hired that their responsibilities would be hands on instruction to students in the salon and that they would take directions from the Professors. She told them that they would be paid at the Instructor rate depending on how many hours they worked. She discussed the scheduling of the 18 Instructors with Mr. DeFrancesco as well as the role of the Professors with the Instructors that they would be working in the salon with students and the Professors should outline the techniques to be used. Overall on an ongoing basis, the Instructors would manage the hands on training and deal with questions from the students and correct their problems. She said that for clarification of client problems, the Instructors would defer to the Professors. The Ministry provided a curriculum but the design of the courses was done by the Professors who were also responsible for the final evaluation of the students. It is not disputed that the College has the right within the terms of the collective agreement to determine whether there was a full-time vacancy to be filled after the resignation of Professor Gray who was at that time a full-time professor in the Hair Stylist Program. Ms. Starkey outlined in her evidence the background of her decision to temporarily fill that vacancy with the sessional appointment of a full-time employee until January 1997. The College asserts that it hired part-time Instructors to cover the required work in the Hairstyling Program and obviously considered that there was not a vacancy for a full-time Professor position which was not posted and is the issue in the grievance filed by the Union. Clearly from the evidence of Ms. Starkey, the concern of the College was the viability of the Hairstyling Program given the negative indications from the Ministry as to the future of Apprenticeship Training with the reduction of enrollment and funding. The College is required by Articles 2.02 and 2.03 A to give preference to full- time positions subject to the operational requirements referred to therein. By Article 6.02 the College must not act inconsistently with the terms of the collective agreement. The College position set out by Maureen Callahan, Vice President, Academic in her response 19 to the grievance on July 23, 1997 indicated that to staff the program appropriately required different classifications with the nature of the instruction to students in the salon coming within the Instructor classification when the students are supervised by a full-time Professor and part-time or partial load Instructors. Specific reference was made to Article 2.03 A which is as follows: “2.03AThe College will give preference to the designation of full-time positions as regular continuing teaching positions rather than sessional teaching positions including, in particular, positions arising as a result of new post-secondary programs subject to such operational requirements as the quality of the programs, enrolment patterns and expectations, attainment of program objectives, the need for special qualifications and the market acceptability of the programs to employers, students, and the community. The College will not abuse sessional appointments by failing to fill ongoing positions as soon as possible subject to such operational requirements as the quality of the programs, attainment of program objectives, the need for special qualifications, and enrolment patterns and expectations.” The College position is succinctly set out in that reply that in part: “The College has demonstrated the need for specialized expertise that is less than a full-time requirement and also demonstrated that there is a legitimate need for both professors and instructors in this program. If the nature of the required expertise and differing responsibilities of teaching classes and supervising students in the salon, there does not appear to be a full-time position of either classification available.” 20 Thus the issue as outlined above to be determined by this Board on the evidence before it, is whether the work required and performed in the Hairstyling Department was properly determined to be within the class definition of an Instructor. If not, it was conceded by the College that there would be support for a full-time position of Professor which would be posted upon the direction of the Board. The essential determination is whether on the evidence, the work required by the College in the Hair Styling Department is severable as to theory and practice whereby the work in the salon falls within the specific limitation in the class definition of an Instructor that it is instruction “directed to the acquisition of a manipulative skill or technique and under the direction of a professor”. As well, the Board must consider the balance of the job description in its assessment of the best fit of the required work between that of an Instructor and Professor. In the Brent award, it is stated at p. 33, “We agree with the College 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 where there is recognized to be an overlap in duties is to distort the classifications…” In this regard, the Union submits that the employees involved are performing the core functions of the Professor definition in teaching in the salon in which the practical applications are intertwined with and supportive of the theory of hairstyling. On the other hand, it is the College’s position that what is required in the salon is teaching the practical 21 skills to the students in preparation for their work as hairstylists which falls within the instruction of manipulative skills. Article 2.01 noted above, became effective upon the resignation of Professor Gray which is a situation covered under Article 27.13. Thereafter the College reorganized the work assignments within the Hairstyling Department with the appointment of Instructors who were hired to teach students in the salon as to the procedures and applications required in hairstyling as described by Ms. O’Connor and Mr. Hannon as to their instructions to students as to the mixing chemicals for hair colouring, the application of hair colour, cutting, blow dry, perms, safety and care of the client, sanitation and cleaning methods all of which are hands on techniques. The Instructors are available to answer the questions of the students but it was made clear to them that if any doubts arose, they were to defer to the Professors. They do not teach the theory of hair styling which is done by the Professors in the classroom. The Professors are also involved in the work of the salon and are generally but not continually present when the Instructors are teaching in the salon. The Instructors are given a text book, a College manual and guidelines for reference and use and carry out the scheduled instructions according to this format prepared and directed by the Professors in accordance with the Ministry’s set curriculum. A Professor is required as part of the academic leadership section in the Class Definition to provide guidance “to instuctors relative to the instructor’s teaching assignments”. While Ms. O’Connor indicated that she was involved in the evaluation of the final test of the students, the evaluation of the students’ progress is the responsibility 22 of the Professors who must also assume “responsibility for the overall assessment of the students’ work within assigned courses” which is beyond the Instructor’s teaching requirements in the salon. The evidence indicates some overlapping duties in the work requirements in the Hairstyling Department between the Instructor/Professor which are both teaching positions but the extensive conditions of the class definition for a Professor which this Board must consider in total, considerably exceeds the job requirements of the College assigned to the Instructors in the salon for the courses in which they are responsible. They are not under the direction of the Senior Academic Officer of the College, do not design, revise or update courses and deal with other faculty members or committees in that regard or participate in the work of curriculum and other consultative committees or have any of the ancillary roles referred to in the class definition. Certainly these Instructors are involved in teaching assigned courses to students but are restricted by their work assignments to practical applications and procedures of hairstyling through the hands on training in the salon where they supervise the students work with the people who attend the salon for service as well as demonstrate techniques with the use of mannequins. It is clear that the underlying theories of hair styling which are taught to the students by the Professors are involved in the supporting manual instruction of the Instructors. It is also clear from Ms. O’Connor that they do not teach theory. Both 23 Ms. O’Connor and Mr. Hannon agreed that there was a standard approach used in the department in the instruction of students in the salon and they followed definite guidelines. It must follow that the work required is limited to the instruction given to students to acquire manipulative skills or techniques which is the core of the Instructor class definition and on the evidence, we find that their duties do not extend beyond but fall within that limitation. We find that the employees involved are not required to perform the duties of a Professor set out in the Class Definition as the work required in the salon is limited to hands on applications and demonstrations of practical techniques of hairdressing which are by their very nature described in the evidence focused on how to perform various tasks and use equipment in the salon such as mixing chemicals, how to clean the salon, how to hold scissors, cut and blow dry hair, how to deal with specific client hair problems. These directions are given by the Instructors so that the students can learn to apply the skills needed in the hairstyling business when they leave the College. The reasons and theory part of the hairstyling course to support these techniques and practices is taught separately by the Professors. The Professor plans the work which is discussed with the Instructors on a daily basis. Unlike the conclusions of the Boards in the three St. Lawrence College cases (supra), we find that the work requirements of the College do not exceed the limitation in the class definition of Instructor and fall primarily within the Instructor class definition. We find that the weight of the evidence relating to the assigned duties of the Instructors in the salon distinguishes their circumstances from the St. Lawrence College award where it was found that the manipulative skills involved in the duties of the Healthcare Aid “are a 24 necessary but not a sufficient foundation” in the supervision of the clinical work of students in the Healthcare Aid Program. In the grievance of Libimiv, a full-time teacher in Surgical Assistant Course, the Board found with reference to the hands on instruction in the operating room setting, that the work was not limited to the acquisition of manipulative skills but went beyond in a significant way from the “rather narrow limitations set out in the definition of the Instructor classification”. The consideration of the evidence which the Board dealt with in those grievances is quite distinguishable from the work assignments in the Hairstyling Department to the Instructors who work only in the salon and give hands on training to the students under the direction of a Professor. The work assignments of the Instructors through the formats they were required to follow in the salon is the foundation of their work requirements set by the College which do not indicate any responsibility to teach the theoretical basis of the tasks to be done in he salon in the hands-on instruction of the students. Therefore unlike the St. Lawrence College cases, the Instructors’ work requirements did not go well beyond the acquisition of manipulative skills “in a significant way”. The test formulated in the St. Lawrence College awards is not applicable in the circumstances of this grievance as we find that the job requirements do not exceed in any significant way, the actual expectation of the College as to the Instructors’ duties in the salon and which are consistent with the limitation in the Class Definition. A Professor may not be actually present in the salon at all times when instruction is being given to students by the Instructors but the evidence is that they are generally available to the Instructors who are given direction and guidance by the Professors relating to the teaching assignments. The Instructors consult with the Professors who are responsible for the courses of instruction including the determination 25 of course contents and how the curriculum will be delivered. Those core functions in the Professor Class Definition are not the responsibility of the Instructors. In contrast with the Fanshawe award, where there was found to be little contact between the Grievor and the Professor, the evidence here is of continuous contacts between the Instructors with the Professors who worked together and helped each other in the salon. Instructors meet a Professor almost daily to deal with any issues which may arise and to plan the work. The Instructor is supervised by a Professor which is a specific responsibility under section ( c) of the Class Definition. Those or similar duties which form a significant part of the whole of the Professor’s responsibilities in that class definition are not assigned to the Instructors in the hairstyling salon so that while there are overlaps in the teaching duties in the salon, the directions and work requirements of the Instructors fall within the limitation of the class definition of Instructors and considered as a whole do not properly fit within the class definition of a Professor. The core or essential duties assigned to the Instructors are to teach manual skills to the students to prepare them to carry out specific techniques of hairstyling. The Instructors were hired for that purpose and were told when they were hired that they would teach only in the salon and were limited to that form of instruction. For all of these reasons, we find that the work assignments to the Instructors in the Hairstyling Department do not constitute the core duties of the Professor class definition but are clearly within the limitation of instruction “directed to the acquisition of a manipulative skill or technique” and not well beyond that requirement in their job. As 26 well, the Instructors are under the direction and guidance of a Professor. Therefore, we find that the best fit for the work required by the College in the Hairstyling Department within the Instructor Class Definition. By assigning the work available in the salon of the Hairstyling Department to Instructors on and after January 1997, the College did not exercise its functions inconsistent with the terms of the collective agreement and was not in breach thereof. Having regard to all of the evidence and submissions of the parties and for the foregoing reasons, the Board finds that the Union did not establish that the College was in violation of the collective agreement as alleged in the grievance. It is therefore our award that the grievance must be dismissed. RD DATED AT OAKVILLE THIS 23 DAY OF AUGUST, 2000. “H.D. Brown” HOWARD D. BROWN, CHAIR “dissent” SHERRIL MURRAY, UNION NOMINEE “R.J. Gallivan” 27 R.J. GALLIVAN, COLLEGE NOMINEE Dissent With due respect, member from decision of the majority. all this dissents the The erred on following basis: majority has the The class definition of clearly limits in a number of Instructor the duties respects. 1)and limited to the acquisition of a manipulative skill or technique The evidence led by Union clearly showed that those working in salon were the the teaching cognitive such as: skills a)client/customer service welcoming relating to a customer including and b)assessing condition of a clients hair in order to determine best the the penn, colour or cut or even if good to the clients hair was in enough condition accept a chemical treatment. particular c) chemicals, which if not mixed properly could cause to mixing the damage client. the ~d)watching client once applied ajudgment the the chemical is and making call as to when to remove chemical the These all evidenced in employer’s course descriptions of those are the own courses by an instructor pertaining to activities in salon. In taught and the as per “course outcomes” student be able to: particular, the will consult with a client, client’s hair scalp, describe analyze and assess and the procedure for performing a blunt cut, procedure for performing a describe the layered cut etc. As well, these types of outcomes were described learning verbally by classroom the witnesses who all conlirmed that while taught in the are There is no distinction except for physical location... also taught in the saloit the .salon vs classroom. To meet of instructor, be to the requirements the activity must limited demonstrating shampoo, or penning techniques. is not cutting This the case. 2)and under the direction of a professor a)those working in salon were working with clients the particular and students not supervision from the Professors and under any b) working in salon were at times scheduled to work without a those the professor in salon. the —2-- The evidence The work in was undisputed. the salon was divided amongst each for professors and instructors, taking responsibility a group of students and assigning to for course clients particular students. In addition, the evaluation this purely recommendation of who worked with student. was the the instructor the counsel for employer quite cleverly days While the acquiesced in the final of(specifically, that employer concedes had position been hearings, the that the improperly they would have violated staffing under Art. 2), staffed, the article it by no means relieves this Board from duties with regards to their the requirements of As this Board employer is well aware, Article 2. and the Article 2 demands preference of full time subject to program the staff; requirements. The majority of this Board employer to circumvent pennits the that requirement, allowing employer to sessional the use part time, and partial load professors to “teach” course an “instructor” to the theory and assign the salon. is clear in award of majority on pages 14 15 with respect This the the and to Mr. 1-Iannon’s testimony. Then on basis of improper the this staffing action, majority supports it’s on basis the finding partially the that the instructor does not all of the duties as a Professor. The conclusion is ludicrous in light of fulfill fact that Mr. Hannon himself provides employer with all of the facets the the of the professor class definition as he is in fact, also paid as a professor to teach certain courses. The artificial distinction is a blatant attempt to deprive of a full of a professor, but let him work the incumbent time salary the full time hours of a load instructor/professor a direct violation of casual/partial and Article 2. Board is compelled to read collective agreement as a whole; This the this particular Board extensive experience with parties under this has these and collective agreement The should not be into employer’s majority drawn attitude which downplays role of Professor of and minimizes the the It is a important skill-set to students of Hairdressing. valued and the and clients a” City College”. The skills utilized by Professors students manifest and alike may themselves in “manipulative sets”, but that by no means detracts from skill the cognitive, social, marketing, required of a artistic and business skills professional hairdresser both in salon and taught class and in the There is no doubt that employer violated collective agreement. the the The grievance should be upheld position for full Professor posted and the time immediately.