HomeMy WebLinkAboutUnion 03-10-06IN THE MATTER OF AN ARBITRATION
B E T W E E N:
GEORGE BROWN COLLEGE
(The “College”)
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The “Union”)
AND IN THE MATTER OF A POLICY GRIEVANCE CONCERNING THE ASSIGNMENT
OF WORK IN THE HOSPITALITY PROGRAMME
David K.L. Starkman Chair
Ann Burke College Nominee
Sherril Murray Union Nominee
APPEARANCES FOR THE COLLEGE
Paul Jarvis Counsel
Regina Lipworth Human Resources
John Walker Dean, Faculty of Hospitality
Ken Langille Dining Room Manager
APPEARANCES FOR THE UNION
Gavin Leeb Counsel
Tom Tomassi Local Union President
A Hearing in this matter was held on March 3, and May 20, 2003 at Toronto, Ontario, and
written submissions were completed on July 11, 2003.
AWARD
The Union grieves that the Employer violated the collective agreement by assigning a
manager to perform certain duties during the orientation of students in the hospitality
programme in the fall of, 2002.
Ms Jayne Drennan testified that she has been a professor in the hospitality programme for
seventeen years and has taught the basic dining room service course since the
commencement of her employment. The course has a functioning restaurant where the
students work to gain experience. At the beginning of each course there is a five hour
orientation which, until the fall of 2002, had been entirely her responsibility. In the first hour
she would go through the course description, objectives, the evaluation criteria and the
evaluation schedule.
At the beginning of the second hour she conducted a physical tour of the restaurant
explaining the various sections and what was expected to be done in each area. She
talked about the equipment, demonstrated the proper use of the machines, and reviewed
health and safety features and procedures.
Commencing in the third hour, Ms Drennan simulated restaurant service. For example, she
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simulated the entrance of guests and discussed the importance of guest relations,
and reviewed the various procedures involved in providing food and beverage service. In
the last part of the orientation, she explained how the various skills taught in the course
were used in the hospitality industry, and answered questions from the students.
Ms Drennan stated that the orientation gave the students an overall picture of the course.
She explained and demonstrated all the skills they needed to succeed in the course and in
the industry. In her view, this is the only time the students saw the entire course in one
session, and, by seeing the objectives of the course from the beginning, they are more
likely to remain on track and to succeed in the programme.
Ms Drennan testified that, in 2002, she was advised that Mr. Ken Langille, the newly hired
restaurant manager, would be giving the bulk of the orientation. She would continue to
provide the course outline, course description, objectives and the evaluation method,
during the first hour. Thereafter, Mr. Langille would conduct the remaining four hours of the
orientation relying on the same orientation package that had been previously used by Ms.
Drennan.
Ms Drennan indicated in her evidence that, along with a colleague, she had drafted the
orientation materials some years ago. In her view, the orientation is the introduction to the
course and delivers the foundation of the course, and the students begin working in the
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restaurant the very next time they come to class, and that they are evaluated, in
part, on how well they understood the material discussed in the orientation.
Ms Drennan stated that, in previous years, the five hours of orientation were not on her
standard workload form (SWF), but that she was nevertheless compensated with lieu time
for the orientations each semester.
Mr. John Walker, the Dean of the Faculty of Hospitality Services, testified that he was
involved in the decision to have Mr. Langille present a portion of the orientation. He stated
that the College had been looking at the respective roles of the professors and
technologists and that a review of the roles and responsibilities in the dining room had
been conducted which determined that (i) the dining room manager could take on most of
the areas of orientation because they fell under the role of dining room manager and/or
technologists, and (ii) this was part of a bigger picture concerning the delivery of services in
the College system.
He testified that in Ontario there are twelve community colleges with hospitality
programmes which included a working dining room, and that they were staffed with a
combination of professors, students, and technologists. He stated that, in his opinion, the
first hour was critical to explaining the academic programme, but the following hours were
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essentially show and tell and demonstrations which he felt could be the role of a technician
and/or the restaurant manager. He stated that another consideration was to free up Ms
Drennan’s time to do more professorial work such as research and course
design. He stated that there is a difference between teaching and demonstrating and that
ultimately it was the intention of the College to assign the orientation work to the support
staff.
Mr. Tom Tomassi, the local Union President, and a professor in the Technology Division for
twenty-six years, testified concerning his experience regarding the orientation of students.
He stated that orientation takes two to three hours to show the processes and procedures
in the shop and to demonstrate how various things are done and to answer questions. He
stated that the students are evaluated on the information provided in the introductory
sessions. He stated that the introductory time is normally recorded as teaching hours on a
SWF.
Mr. Tomassi testified that he reviews the SWF’s of the faculty members and that, to his
knowledge, orientation is delivered by faculty members as part and parcel of what they do.
Mr. Tomassi acknowledged that the College employs technologists who are not in the
academic bargaining unit. According to Mr. Tomassi, technologists plan, organize, and
conduct demonstrations under certain circumstances and can assist in student evaluation
under the supervision of a professor.
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DECISION
In the Union’s submission, the orientation described by Ms Drennan was core teaching
work covered by the collective agreement, and the onus was on the Employer to establish
that it was not bargaining unit work. In its submission, the work had been performed for a
considerable numbers of years by a professor and the onus was on the Employer to
demonstrate that the work had changed in some way to make it non- bargaining unit work.
Since the work had been performed exclusively by bargaining unit members for a
considerable time, it could not be removed. While the Colleges Collective Bargaining Act
(theAct) allows this sort of work to be performed by part-time or sessional teachers, it does
not allow the work be given to managers or supervisors.
The Union submitted that the Colleges Collective Bargaining Act defined both the scope
and the composition of the bargaining unit. Schedule 1 of the Act provides that the
academic bargaining unit is comprised of teachers and that the collective agreement is
applicable to all persons who teach, subject to the exclusions set out in the Act, being
teachers who teach for six hours or less per week, or teachers who are appointed for one
or more sessions and who are employed for not more than twelve months in any twenty-four
month period. In its submission, it would frustrate the Legislature’s intent if Schedule 1 of
the Act were interpreted to allow managers, or other excluded staff, to perform teaching
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work otherwise performed by teachers, and reference was made to the decision in
Fanshawe College of Applied Arts & Technology [1991] OLRB Rep. Sept. 1044.
Reference was also made to the following provisions of the collective agreement:
1.01 The Union is recognized as the exclusive collective bargaining agency
for all academic employees of the Colleges engaged as teachers,
counsellors and librarians, all as more particularly set out in Article 14,
Salaries, except for those listed below:
(i) Chairs, Department Heads and Directors,
(ii) persons above the rank of Chair, Department Head or
Director,
(iii) persons covered by the Memorandum of Agreement with the
Ontario Public Service Employees Union in the support staff
bargaining unit,
(iv) other persons excluded by the legislation, and
(v) teachers, counsellors and librarians employed on a part-time or
sessional basis.
NOTE A: Part-time in this context shall include persons
who teach six hours per week or less.
NOTE B: Sessional in this context shall mean an appointment of
not more than 12 months duration in any 24 month
period.
6.01 It is the exclusive function of the College to :
(i) maintain order, discipline and efficiency;
(ii) hire, discharge, transfer, classify, assign, appoint, promote,
demote, lay off, recall and suspend or otherwise discipline
employees subject to the right to lodge a grievance in the
manner and to the extent provided in this Agreement;
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(iii) manage the College and, without restricting the generality of
the foregoing, the right to plan, direct and control operations,
facilities, programs, courses, systems and procedures, direct
its personnel, determine complement, organization, methods
and the number, location and classification of personnel
required form time to time, the number and location of
campuses and facilities, services to be performed, the
scheduling of assignments and work, the extension,
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(iv) limitation, curtailment, or cessation of operations and all other
CLASSIFICATION DEFINITIONS FOR
POSITIONS IN THE ACADEMIC
BARGAINING UNIT
(to be used in conjunction with the Job Classification Plans for positions in the Academic
Bargaining Unit.)
CLASS DEFINITION
PROFESSOR
Under the direction of the senior academic officer of the College or
designate, a Professor is responsible for providing academic leadership and
for developing an effective learning environment for students. This includes:
d) 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 the
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 objective, approach and
evaluation techniques;
- carrying out regularly scheduled instruction;
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-
- 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.
The College submitted that the work performed by Mr. Langille during the orientation period
was not teaching of the sort traditionally performed by professors. In its submission, Mr.
Langille was demonstrating where things were and how things ran, and this was not
teaching work reserved exclusively for faculty members in the bargaining unit. Alternatively,
it was submitted that, even if this was teaching, there was nothing in the collective
agreement which required teaching duties to be exclusively performed by full time
professors, and reference was made to article 27.03E2 which provides as follows:
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27.03E 2 Employment with the College in a position ordinarily outside
the bargaining unit in the course of which teaching, counselling
or library assignments have been undertaken in the College
(other than on an unusual or isolated basis) shall count in
computing seniority of persons hired by the College in
positions outside the Agreement. Such seniority shall be
credited in the proposition that the teaching, counselling or
library assignment is of a full-time assignment based on one-
quarter, one-half or three-quarters of a month of seniority for
each full month’s employment.
Reference was also made to the decision in Fanshawe College and OPSEU (OPSEU
File 89A160), unreported, November 28, 1989, (G. Brent). In that matter the Union grieved
that a person classified as a Technologist B was working as a teaching master and should
therefore be included in the academic bargaining unit. In dismissing the grievance the
Board stated at pp. 12-13 that:
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 sufficient
to enable them to receive their certificates. His instruction 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 matter 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.
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This Board of Arbitration was referred to a considrable number of arbitral decisions, arising
between parties governed by the Ontario Labour Relations Act dealing with situations in
which managers or supervisors were assigned bargaining unit work. The consensus of the
jurisprudence is summarized in Re Irwin Toys Ltd. and United Steelworkers, 1982 6 L.A.C.
(3d) 328 (K.M. Burkett) at p. 334 as follows:
...A concise statement of the arbitral authority pertaining to the use of
supervisors to do bargaining unit work is contained in Re Becker Milk Co.
Ltd. and Teamsters Local Union No. 647, August 7, 1980, unreported
(Burkett) as follows:
The use of non-bargaining unit employees, including
supervisors, to do bargaining unit work has been a source of
contention between companies and unions from the earliest
reported cases. A general principle of interpretation now
exists that, absent an express restriction in a collective
agreement, a supervisor is free to do bargaining unit work
provided he does not do it to such an extent as to bring himself
within the bargaining unit. The implied restriction which forms a
part of the general principle flows from the usual seniority job
posting and classification provisions found in most collective
agreements. If the intent of these provisions is to be given
effect, it must be open to a union to establish that a supervisor
is doing bargaining unit work to such an extent as to bring him
within the agreement, thereby creating a possible violation of
the seniority and union security provisions of that agreement. It
follows that the issue must be determined by reference to the
actual work performed and not by the title held by the person
whose status is in dispute:...
In this instance, the evidence was that Mr. Langille provided four hours of instruction to
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students during orientation, and that he participated in five orientations during the fall of
2002. This work had, for a considerable number of years, been performed by Ms Drennan,
a full time teacher in the bargaining unit. The assignment of the work to Mr. Langille
however did not amount to a reduction to Ms Drennan’s SWF, as the orientation was
historically not recorded on her SWF, nor was there any evidence that persons were laid off
or not recalled from layoff, or that any bargaining unit members had their SWF’s affected,
as a result of this work assignment to Mr. Langille
The jurisprudence, to which the Board was referred, generally permits managers or non-
bargaining unit persons to perform a certain amount of work historically performed by
bargaining unit members provided that such assignments do not threaten the integrity of the
bargaining unit, and there is considerable discussion in the decisions as to the threshold
which might trigger such a conclusion: see Re Hydro Electric Commission of City of
Ottawa and International Brotherhood of ElectricalWorkers, Local 636, (2000) 90 L.A.C.
th
(4) 62 (D.C. Stanley), Re Town of Lincoln and Canadian Union of Public Employees,
th
Local 1287, (2000) 85 L.A.C. (4) 144 (R.L. Verity), Mohawk College of Applied Arts and
Technology and Ontario Public Service Employees Uni on, Grievances of Michael
Sweeney, unreported, May 15, 1997, R. D. Howe; OPSEU (Pilon et al) and The Crown in
Right of Ontario (Ministry of Community and Social Services) unreported, November 56,
2001, R. M. Brown.
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In this matter, the Board is satisfied, based on the evidence of Ms Drennan, that a
considerable portion of the work performed by Mr. Langille during the orientation period
were teaching duties, as the parties have defined them, in the class definition of professor
set out in the collective agreement. Given the ultimate disposition of this matter however, it
is not necessary for this Board to determine, at this time, precisely which of the duties were
in fact teaching duties.
The Union’s basic submission is that the collective agreement and the Colleges Collective
Bargaining Act prevent the assignment of any teaching work to a manager. There is
however no such explicit restriction set out in the collective agreement or the Act, and if the
Legislature or the parties had intended there to be such an absolute prohibition against
managers performing any teaching duties under any circumstances, it could have been so
stated.
The Board recognizes that the issue of whether orientation for students can be performed
by non-full-time academic bargaining unit persons such as technologists or managers is of
great significance to the parties. Mr. Walker, the Dean of the Faculty of Hospitality
Services described the decision to assign the orientation work to Mr. Langille as part of a
bigger picture concerning the delivery of services in the College system. The Union
described the decision as the “thin edge of a wedge” which, if permitted, could threaten the
integrity of the academic bargaining unit by allowing the College to assign orientation
teaching duties throughout the College to non-academic bargaining unit persons.
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