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HomeMy WebLinkAboutUnion 04-01-08 IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE (the "College/Employer") - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF A UNION GRIEVANCE - OPSEU FILE #02C260 BOARD OF ARBITRATION Paula Knopf, Chair J. Campbell, Employer Nominee Ron Davidson, Union Nominee APPEARANCES _. For the/Employer Brenda Bowlby, Counsel Barry Sharpe Jim Garner For the Union David Wright, Counsel Sherri Rosen The Hearing of this matter was held in Welland, Ontario on October 17, 2002 and in St. Catharines, Ontario on September 23 and 30 and October 1 and 23, 2003 AWARD This grievance alleges that two Instructor positions created and posted in December 2001 ought to have been posted and classified at the rank of Professor. The grievance refers to a number of courses that are being taught in the Foundation Studies Program at the College. These courses make up the workload of the two positions. The allegation of the Union is that thesecourses have been and should continue to be taught by someone who is classified as a Professor. The courses are in the areas of computer literacy and mathematics. The parties presented extensive evidence regarding' the nature,.purpose and details of these courses, including course outlines, materials and teaching guides. Only the essential aspects of the evidence shall be referred to in this Award. The grievance arose because the Professor who had taught these or similar courses in the Foundation Studies Program retired suddenly in the summer of . 2001. His courses were then assigned on an interim basis to two partial load Professors. Those same two individuals were then hired on a full-time basis as Instructors. They continue to teach the same courses that they had been teaching on a partial load basis as Professors; however, they are classified as Instructors. The Union asserts that the positions should be classified at the level of Professor because the courses and their content have not been substantially changed since they were taught by a teacher with professorial status. The College asserts that the courses have been revised and are now being taught at such a basic and rudimentary level that they are appropriately assigned to teachers who are classified as Instructors. This case will be determined in the context of the collective agreement which contains the following class definitions: -2- 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: 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 consulCative committees as requested. INSTRUCTOR The lnstructQr classification applies to those teaching positions where 'the duties and responsibilities of the-ino.umbent are limited to that portion of the total :s.l~ectrum of academic activities'related to the -3- 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 '~6t'~' 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 exp.erience, field trips, etc., and to select suitable learning, materials from tl~ose provided or identified to facilitate the attainment by the students of the educational objectives of the assigned courses. The Instructor's duties and responsibilities include: - ensuring student awareness of co...urse objectives, instructional approach, and evaluation systerhs; - carrying out regularly scheduled instruction according to the . format prescribed for the course, including as appropriate, classroom, laboratory, shop, field, seminar, computer-assisted, individualized learning, and other instructional techniques; - tutoring and academic counselling of students in the assigned groups; 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. The evidentiary presentation of this case was interesting in that, with one.:-e~xcelgtion, neither party called the I. nstr, uc-tors who are actually teachi-ng ~h'e courses or the Coordinators Who are responsible for the cours~s that are under -4- scrutiny. Only one witness, called by the Union, has taught any of the courses, and she has only taught one of them. The bulk of the Union's evidence was presented by Professors who have previously taught what 'were said to be the equivalent courses previously. The College's evidence was presented through the Dean of the Division where the courses are being taught. The sufficiency and the weight of each side's evidence were challenged by the opposite party. A Professor who had taught in the Foundation Studies Program for several years was scheduled to teach several sections entitled CAPL 1440 and CAPL1498 in the Fall 2001 semester. He had also been responsible for teaching COMP 594 [This course has been renUmbered as CAPL 1594'.] I'n the summer of 2001, he suddenly announced his retirement. The CAPL 1440 course is no longer being taught and shall not be referred to further in this case. The other eourses ' were reassigned. His courses, CAPL 1498 and 1594, must be examined. The other course which will be under scrutiny is Math 1035. Previously numbered Math 035, the course had been taught by a Professor. One of the Instructor positions under review in this case is the work of the person who is teaching this course as a significant portion of his workload. CAPL 1498 This course is entitled computer Applications 1. This is a two-credit course offered to students in the Foundation Studies Division, Continuing Education and General Arts and Sciences programs. The Course Information Sheet provides the following oourse description: -5- COURSE DESCRIPTION, This is an introductory course in computer literacy that provides the students with hands;on _comPuter skills [~ecessary for success in their C'olli~ge'~l~'r~'g[.~ms~ · After th'eylbecbme farfiilia~. ,.With Windd~/S 98 operating system, students will learn how to use email and a Web browser. They will then use Microsoft Word 2000 to acquire skills in word processing TYPES OF EVALUATION USED IN THE COURSE AND THEIR WEIGHTS The final grade will be based on the results of two tests and various assignments throughout the term. The tests will be of the "hands- on" type where the student will be given specific tasks to perform ,. using the computer. The specific curriculum objectives by the unit include: PERIODS TOPIC OBJECTIVES 1 Introduction to At the end of this topic the student the course should be able to: · practice proper lab protocol at the college__ · log on to the network 4 Email & the At the end of this topic the student World Wide Web should be able to: · go to spedified site on the web; follow links · search for information on the web · use email · complete in-class assignments -6- 4 Creating Reports At the end of this topic the student and tables should be able to: · apply styles hide spelling and grammar errors · create and update a table of contents · center a page vertically · create footnotes · use Document Map · wrap text around graphics · create a simple table · add captions · sortalist · add headers, footers and page numbers · print selected pages ° complete the Hands-on Practice Exercises. Successful completion of this course is a prerequisite for further computer application courses at the College. Students can be exempted from taking classes in this course if they successfully complete a "skills assessment test" in the second week of classes. If they demonstrate sufficient skill, they are given credit for the course. The course is presented through prepared materials. It is held in a computer lab setting, wherein the students work thrOugh a series of tutorials'and exercises. There is an Instructor's outline with exercises, assignments and answers provided. These materials are available to both the Instructors and the Professors who teach the course. Since the fall of 2001, the course has been taught both by Instructors, Professors.and Co-coordinators. Professor Lyn Emmons is one of the Professors-.who tea'ch the .course. Sh_e-testified-on behalf'of'the Uni°n. She "d;gscribes the content of'the course as '~he teaching of the.W, ind0ws and:Word -7- systems. The Union addressed the case-law's focus on the elements of cognitive skills that are taught at the professorial level by Professor Emmons' testimony that there are "cognitive elements" of this course. She explained that this can be seen when the students are taught how to organize material through the understanding of what she describes as "the hierarchy of levels of files." She also testified that she teaches the ability to reverse actions or amend procedures when errors are committed. Further, she emphasized students are expected to apply styles to documents and tables and learn how to use the Internet. She challenged the suggestion made in cross-examination that she is teaching simply "keyboard" or typing skills. Professor Emmons conceded that there coUld be said to be cognitive elements in almost everything we do, including typing or digging a hole. However, she differentiated digging a hole, which she describes as a manipulative skill, with the creation of folders and sub-folders in her course which require "a sense of design." The materials available for this course constitute a text with tutorials that have students work through "step by step" basic directions about how to use the Windows and Word systems. The text's introduction promises to provide" a basic understanding of computing concepts and to build the skills necessary to ensure that information technology is an advantage in whatever path [the students] choose in life." The materials also appear on the students' computer screens in the lab setting. Professor Emmons testified that she also provides further and different examples and instructions beyond what are available in the prescribed materials. Barry Sharpe is the Dean of Foundation Studies and is therefore responsible for this. cQurse. He described this course as "a tutorial in a lab setting," where students'follow the-direCtions as they appear on their co'mputer screens. Fie -8- testified that the role of the teacher is to move from student to student, "as questions arise," and as they progress through the prepared materials. All the work is done in class, with no homework assignments. He describes this course as being very basic. He Sees the purpose of the course as simply to give the students the "hands- on skills" that they need to use computers at the College and be familiar with computers on the job. Dean Sharpe testified that as a result of the evolution of the Windows system, the "basic computer use" that is being taught in this course is simply a manipulative skill, akin to "typing in the millenium." He repeatedly described the course's exercises as "point and click." He did not dispute Professor Emmons' opinion that there may be some cognitive elements to this course. However Dean Sharpe testified that the cognitive elements were similar to "understanding that a tree has a trunk." He said that teaching these types of cognitive elements does "not require much teaching." He does not perceive the course as one imparting problem-solving si<ills, but instead sees the.course as one where students are taught "where to click and where to type." The Union's evidence established that the College had previously offered an introductory computer literacy course numbered COMP 498 that also covered the same type of material. However, Dean Sharpe emphasized that the Windows '98 and 2000 systems-being taught in the current course are "more user friendly" than the previous versions of Windows. This is one reason why he has assigned an Instructor to this course, whereas in the past, COMP 498 was taught by a Professor. In fact, Dean Sharpe testified that the current course is different from COMP 498 because of changes that he instituted to achieve two objectives. First, the course was redesigned as part of a consolidation of computer literacy courses frem various di,~isions .to be available.for ne...n-oempu.ter students. Seeondly, he 'w,a~ted a "basic" tour-se at'the "literacy level,,~tha~ w.as appropriate for the Windows environment and the students' general needs for computers in college and at a job. Therefore, he directed that the CAPL 1498 course be designed to achieve those ends. CAPL i 594 This course is entitled Computer Applications 2 - Excel/PowerPoint. CAPL 1498 is a prerequisite for this course. The course is offered to a variety of programs, including General Arts and Science, Culinary, Hotel and Restaurant Management and Tourism programs. 'COURSE DESCRIPTION This is an introductory course in using Microsoft Excel and Microsoft PowerPoint. The Excel portion provides students with introductory, hands-on spreadsheet skills including editing worksheets; entering values, formulas and functions into worksheets; using What-If analysis; formatting worksheets; inserting graphics and charts. The PowerPoint portion provides students with the skills required to create, modify, format and refine slide presentations. TYPES OF EVALUATION USED IN THIS COURSE AND THEIR WEIGHTS The final grade will be based on the results of two tests and various assignments throughout the term. The tests will be of the "hands- on" type where the student will be given specific tasks to perform using the computer. COURSE GOALS ~pon successful .completion of tills course,'the student will be,able to use Microsoft E-xcel and 'Pe,.WerPo.int to: -10- · Create and edit data in a worksheet · ' Make custo'm charts to illustrate data · Analyze data in a worksheet; use What-If analysis and Goal Seek · Create and format slide presentations · Modify and refine slide presentations The specific objectives include: SPECIFIC CURRICULUM OBJECTIVES BY UNIT TOPIC OBJECTIVES Creating and Editing At the end of this topic the student should be a Worksheet able to: · enter, edit, and clear cell entries · save, close, and open workbooks · specify ranges, copy and move cell entries · enter formulas and functions · adjust column widths · change cell alignment · format cells · insert rows · insert and size a ClipArt graphic · enter and format a date. · preview and print a worksheet · complete the Hands-On Practice ExerciSes Modifying and At the end of this topic the student should Refining a be able to: Presentation ·find and replace text · select and change the slide layout · create and enhaqce a table · modify-clip art and create, a.text box · . changethe,pFesentatiQn'~design and · colour scheme · change the slide and title masters · hide the title slide footer · duplicate and hide slides · create and enhance drawing objects · animate objects and add sound effects · add transition and build effects · control a slide show · add freehand annotations · create speaker notes · checkthe Style · document the file and print selected slides · complete the Hands-On Practice Exercises The Union's evidence regarding this course was presented by Professor Emmons. However, she has never taught CAPL 1594 as such. She has taught a Similar level of Excel and PowerPoint at the College in the past. On the basis of that experience, she was asked to review and ~:emment on the course outline for CAPL 1594. She believes that the course objectives cited above are "pretty well" the same as the ones in a course that she taught in 1998. She testified that many "cognitive sl;:ills" are involved .in learning Excel and PowerPoint. She explained that students learn what a "cell" is and how to use them with formulas. She also feels that there is a "fair amount of creativity" required in designing slides and presentations for the PowerPoint program. She explained that while there may be teaching of manipulative sl~i.lls required in the operation of the programs, the capacity "to do it well" takes a certain amount of decision making. Accordingly, she stressed that there are cognitive elements to this type of course. In response to this evidence, Dean Sharpe testified that there is a significant difference between the course PrQfes'sor Emmons taught in 1998 and the cur. rerit cAp L 1594.-.-Dean Sha'rl~e poihted-out'that.when Profe:ssor. Emmons was teaching-PowerPoint.~nd Excel, 'tl~e course-.~lso included the "Access" program. He -12- described the previous course as being more complex and sophisticated than CAPL 1594 in that it required students to achieve "conceptual" understandings. It is because of this that he feels that the previo'us course went "beyond what is appropriate for an Instructor to teach". Dean Sharpe stressed that PowerPoint and Excel now are so improved that they have simply become a "point and click exercise" that it is appropriate to be taught by an Instructor. He does not believe that the course currently demands the development of cogitative skills. He likens this course to the skills that are being taught in CAPL 1498. Math 1035 This is a two-credit course taught to students in the Culinary Management and' Chef Training program. The course description reads: COURSE DESCRIPTION: This course provides a review of basic math skills (rounding numbers, fractions, decimals, percent). Skills needed to calculate unit/portion costs and menu prices using formulas and a calculator are developed. All applications are directly .related to the Food Service Industry EVALUATION: 3 Tests' COURSE GOALS: 1. To review and upgrade basic mathematical skills. 2. To apply basics mathematical principles to applications r. equ!red-in the culinary skills and 'cook app.rer~ticeship programs -13- MAJOR TOPICS AND OBJECTIVES: TOPIC '1 ROUNDING NUMBERS EXERCISES Obiectives At the end of this topic, students should be able to: 1. Round off whole and decimal numbers to a specified place value. 1.1 2. Round off to industry standards. 1.2 3. Perform calculations using decimal numbers and the order of operations 1.3 4. Solve practical kitchen problems involving decimals and rounding 1.4 TOPIC 8 APPLICATIONS PERCENT EXERCISES A. Yield Tests' B. Menu Pricing Objectives At the end of this topic, students should be able to 1. Calculate the yield percentage, yield rate, or A.P. quantity. 8A-1 2. Calculate the menu price, cost, or food cost, rate, using the 3 basic percent equations 8B-1 -3. Solve problems involving menu pricing -8B--3 -14- Neither party called the person who teaches this course. The Union presented its evidence through Professor Lorraine Pigeault. She has taught in the Mathematics Department of the College since 1'980 and on a full-time basis since 1985. Previously, she developed and taught a course entitled Math 035 for the Culinary Management and Chef Training programs. She testified that when she first developed the course it was a basic review of addition, subtraction, multiplication and division. However, she says as the caliber and sophistication of college students rose, the course evolved to provide instruction in percentage, pr0por~ions and the skills that students would need for their specific programs. Accordingly, she developed a mathematics course with "exercises relevant to the kitchen program." The material she developed became tl~e basis of the current Math 1035 program. She was asked to comment upon the current materials. Her conclusion is that the current materials are "pretty much the same" as the materials she taught. She also testified about the way she taught the course and equates it to other mathematics courses she teaches at the College. She explained how she spent time ensuring that the students understand the "basic skills" and then applied these skills to the field where the students will be working. She conceded that the arithmetic in the Math 1035 course may be "simple." However, she stressed that the students are taught and must understand the theory behind the equations, in order to apply them to the recipe convei'sions, determination of unit costs, yields, and similar applications. Some of these determinations require multiple mathematical steps. She-explained that the testing is done through "word tests", where students are required to solve problems. A great deal of attention was paid by the parties to the similarities and differences, between the old Math 035 and the' current'Math 1035. When Professor .Pi§eault !augl~t the course, [he s{ude'nts receive~l three credits. Since.it changed -to -15- Math 1035, the students now receive only two credits. It is interesting to compare the course description for Math 035 with the one for Math 1035 cited above. The former reads: This course will provide the student with the basic fundamentals of mathematics including fractions, decimals, percentages etc. Their studies will relate to industry-related calculations including costing, pricing, yield percentages and recipe conversions. However, the course goals, topics and objectives in Math 1035 and 035 read essentially the same. Dean Sharpe disagrees with some of the evidence of Professor Pigeault. The Dean testified that he directed that the Math 035 course be fundamentally revised to meet the current needs of the culinary students. He explained that the Culinary Department wanted someone to teach the course who was not a mathematician and who instead had "hands-on knowledge" of the industry. Accordingly, the course was redesigned from Professor Pigeault's materials by Andr6 Roy on a contractual basis when he was teaching the course as a partial load Professor. The new Math 1035 course has never been taught at the professorial level and Mr. Roy is not a mathematician. He is the one currently teaching Math 1035. Dean Sharpe describes this course as teaching "r~anipulative skills" because the students use calculators to solve simple mathematical problems. He concedes that there are some cognitive elements to the course. He added, "That only makes sense .... in the college setting .... College students need to be able to acquire and take techniques into the workplace that bring together understanding and hands-on-learning." Dean Sharpe also describes Math 'i035 as "a refresher course in hands-on arithmetic techniques." He says the course is designed to simply give the students the "rules of thumb" and the "tricks of the trade" that kitchen managers and chefs use on the job. Referring to the elementary school curriculum, he illustrated that the mathematics being taught is equivalent to the Grade 6 to 8 curriculums in the elementary school system. He views the course's format as a "workshop math lab" where students "work through the exercises" after minimal "blackboard explanations" are given by the Instructors and where the Instructor's task is to "supervise the process." He feels that this course involves "manipulative math skills." Math 1035 is not being taught in a vacuum; it is being taught at a college where many other comparable .and contrasting courses are being offered. Accordingly, the padies tendered evidence, to show the way this course fits into the comparative scheme of things. Ohe of these courses is Math 1125 which is offered in the College's Vocational Program. The Math1125's course description promises "a two-term sequence [that] consists of a review of basic mathematics with an . emphasis on fractions, decimals, sign numbers, ratio and proportion and an introduction .to the metric system." Professor Emmons described this course as one that is offered to a "special group of students who slipped through the cracks" and entered the College with "very basic" or "low level" mathematical achiev'ement~ The course covers basic arithmetic, including adding, subtracting, multiplication, division, fractions and decimals. The course's General Educational Goals include a student being able to "understand and solve problems involving mathematics." Dean Sharpe agrees that the mathematics is at the level of elementary school curriculum. There is a oourse manual. The.course is taught by a Professor. it is not taught ur~der the . dire(~tion of'a Co(~rd~na~er or'ether Professor. -17- Dean Sharpe explains that he assigns a Professor to teach Math 1125 because he feels that due to the nature of the students who take this course, the teacher needs a "sophisticated ability to diagnose [i.e. detect] learning disabilities and to be able to teach students who struggle with math." He refers to this as "remediation," rather than the teaching of basic skills. He explained'that each student is allowed to work through the prepared materials at his/her own'pace. He feels that this requires the teacher to adapt.or "rewrite the curriculum on almost a daily basis" for each particular student. Another course that was offered by the Union as a comparator is Math 1100. This course description reads: In this applied course 'students study the mathematics necessary to effectively perform their duties in the lab and the greenhouse: Topics include a general review of basic arithmetic and algebra, the metric system, ratio and scale drawings, calculation of solution concentrations and sprayer calibration. The course goals are to "apply basic arithmetic, algebra and mensuration [sic] to the solution of problems related to the Greenhouse, Horticultural, Winery & Viticulture programs." The course materials were prepared by Professor Pigeauit. She describes Math 1100 as "very similar" to Math 1035. She explained that both courses involve mathematics being taught through notes and exercises that have been developed to meet the specific needs of the students in .their respective programs. Her opinion is that the theories of mathematics being taught in Math 1035 and Math 1110 are the same and that it is "just the applications that are different." Again, Dean Sharpe differs with Professor Pigeault. Dean Sharpe stressed that Math 1100 is a three-credit course which includes algebra and math at a "higher-level" than Math 1035. -18- Dean Sharpe suggested that CLN ;1222 is a contrasting course to Math 1035 in that the former is taught by a Chef Professor where students are required to do "more complicated two or three step mathematical calculations that a kitchen manager would need on the job." in cross-examination he acknowledged that there are also examples of three-step calculations in the Math 1035 materials. Level of Supervision Because the Class Definition of Instructor includes the phrase "under the direction of a ProfessOr," both parties addressed this issue by referring to the Coordinator's involvement with the Instructors ef the three courses being looked at in this case. However, again, there is' no direct evidence from the Instructors or the Coordinators. The Union relies on the Instructors' and Co-ordinators' SWFs for the !asr number of years. The SWFs do allot time for Coordinators to meet with faculty. Further, the evidencb reveals that both Professors and Instructors meet with Coordinators at the beginning of each term to discuss the courses that are being taught. The Union points to the fact that there are no apparent increases in the relevant Coordinators' hours contemporaneous with the commencement of the creation of these Instructor positions. However, the Instructors' SWFs do.indicate more time for meetings with Coordinators than is the norm allotted for Professors. Further, as of June 2003, the Coordinators' position descriptions do indicate that they are to "provide direction to Instructors." Dean Sharpe testified that he has specifically directed the appropriate Coordinators to give direotion to the Instructors offering these courses. Dean Sharpe explained that he considers the Coordinators as being responsible for the · prepa'i:ation-of the course outline and for maki?g changes.to the-course design. Once ~ 'c~urse starts, he expects the Ceo'rdinator-to be availa'ble .to answer the Instructors' questions. Dean Sharpe is confident that direction is being given, although he has no direct evidence regarding the actual nature of the direction being offered. However, he is sure that direction is being given because he has observed the Coordinators in discussions with the Instructors and he has received copies of email exchanges.between them. He does not expect the Coordinators to sit in and observe the Instructors' classes. Indeed, he testified that this is not necessary "in order to provide direction.". He referred to the two Instructors affected by this case and stressed, "they are fully qualified and' experienced in what is needed in the classrooms and the tabs." The Union's Submissions Counsel for the' Union argued that there are four reasons why the two Instructor Positions are not properly classified as such. It was alleged that: · neither position is limited to instruction directed towards the acquisition of a manipulative skill and technique · the teachers are not working under the direction of a professor. · the Math 1035 course is not being taught from a prepared course or text · the courses have, in the past, 'been'taught and continue to be taught .at the professorial level except for Math 1035. The Union relies heavily upon the Report of the Classification Review Committee chaired by Kenneth Swan that was released in 1978 (hereinafter referred to as the Swan Report). The Union points to the language in that Report that explains the intention and purpose of the Instructor classification. Further, it was said .that the Swan Report makes it clear that the Instructor position is only to be used in limited, restricted types o~.teach~ir~g. The Union also relies on'.the -following case J, aw arid its analysis of-when it is appropriate to utilize the instructor - 20 ~ classification:' St. Lawrence College of Applied'Arts and Technology and Ontario Public Service Employees Union (Shope), unreported decision of J.F.W. Weatherill, dated March 25, 1981, St. Lawrence College of Applied Arts and Technology and Ontario Public Service Employees Union (Boone), unreported decision of J.F.W. Weatherill dated August 17, 1981, St. Lawrence College of Applied Arts and Technology and Ontario Public Service Employees Union (Lubimiv), unreported decision of J.F.W. Weatherill dated August 17, 1981, Fanshawe College and Ontario · Public ServiCe Employees Union (O'Brien), unreported decision of Jane H. Devlin dated April 3, 1998 and George Brown College, unreported decision of Howard D. Brown dated August 23, 2000. The Union argues that the evidence establishes that neither of the people who are designated as Instructors in these courses are working under the direction of a professor. It was said that Dean Sharp's evidence about the telling the Coordinators 'to give direction to Instructors and his observing of the Coordinators meeting with Ins;[ructors falls short of establishing the kind of direction which is contemplated by the collective agreement. Further, it was said that the Coordinators' SWFs do not corroborate the assertion that they may be giving direction to the Instructors. Turning to the specific courses, the Union asserted that the Math 1035 course is essentially the same as the Math 035 course previously taught by Professor Pigeault at the professorial level. It was argued that the evidence shows that there have been no significant changes and that the focus of the course is still on theory and cognition, rather than manipulation. It was submitted that the teacher of this course'has ~o. explain "how and why" the calculations'should be applied-in the culinary setting. It.was a. el~nowledged that some of the math may be basic; 'however -21 - it was submitted that this should not be a fact that takes it out of the realm of professorial work. The Union points to Math 1025 as an example of a course being taught by a Professor even though it involves basic math. Further, the Union points out that the course description of both courses require students 4o "convert", "solve" and "understand". In addition, some of ihe calculations in the Math 1035 course involve three or four-step processes. It was stressed that the students were being taught "more than how to plug a formula into a calculator;'' instead they were being taught when and how to use different calculations. Turning to CAPL 1594, the Union acknowledges that the evidence was given about this course by a professor who has not taught it. However, it was stressed that Professor Emmons has taught the "components of Excel and PowerPoint." Therefore, it was said that her evidence ought to be considered as persuasive. The Union relies on the course information sheet that lists the'course's goals as including creating and editing, analyzing data and modifying materials. It was argued that PowerPoint is a creative programme which allows people to make effective presentations. While the course may promise to offer the student a "hands- on experience", it was said that the students are still being asked to develop skills beyond the manipulative level. Accordingly, it was argued that this course is outside the restrictive scope of the Instructor classification. The Union acknowledges that elements of the CAPL 1498 course have been fairly described as "manipulative." However, it was submitted that aspects of the course go beyond manipulative skills in that students are taught how to manage files and problem-solve on the system when mistakes have been made. Further, ~tudents are taught elements of style in the formatting of documents..Accordingly, it - 22 - was argued that a significant amoun~ of this course involves more than manipulative skills. Counsel for the Union then applied this analysis to the two positions in question. Since one teaches predominantly Math 1035, it was submitted that his position should be'reclassified as a Professor. The other person teaches CAPL 1498 sixty per cent of his time. The rest of his time is spent teaching CAPL 1594, of which 35 to 40 per cent were said to involve cognitive elements of learning. Accordingiy, it was said that a significant amount of his. teaching is outside the restrictive scope of the Instructor definition and that the position should be reclassified as a Professor. In support of all its arguments, the Union places reliance on the fact that other people who have taught some of these courses did so at the professorial level. It was pointed out that both Mr. Domitrek and Mr. Roy taught the same courses as they are now teaching when they were partial load professors. The evidence of Ms. Rosen and the documentary evidence support this. Further, these courses were previously taught by Professor Monroe, before his sudden retirement. His workload was predominantly composed of CAPL 1498 and 1594. in addition, SWFs filed in evidence demonstrate that there are lists of teachers at the professorial level, including Coordinators, who teach CAPL1594 and 1498. it was stressed that the purpose of the classification is to ensure equitable treatment so that people who do the same work receive the same rate of pay. By way of remedy the Union asked that the positions of Mr. Domitrek and Mr. Roy be classifie.d as Professor and that they receive compe, nsatie, n - 23 - retroactive to the filing of the grievance, in addition, the Union seeks the consequential dues that would flow with the reclassification. The Employer's Submissions Counsel for the College challenges whether the Union has properly satisfied its onus of proof. In particular, the College points out while the grievance involves the classification of two Instructor positions, neither Instructor filed a grievance or was called as a witness~ Nor did the Union call any of the Coordinators as'witnesses despite the fact the Coordinators are members of the bargaining unit. The College accuses the Union of trying to establish its case with Professors who have taught similar, but different courses as an attempt to "nibble from both sides" of the issue without ever providing the critical evidence. The College asserts that the Union bears the onus of proving that the core duties of the Instructors fit more appropriately within the Professor classification. The College asserts that the appropriate question is which classification is the "best fit" for the bundle of duties. Reliance is placed on the decision in Lambton College of Applied Arts and Technology and Ontario Public Service Employees Union, re Pratt and Hepburn, unreported decision of E.E. Palmer dated June 24, 1981. The College agrees that there is an overlap in duties between a Professor and Instructor in that everything an Instructor does, a Professor does as well. It was said that this is a critical point and indicates that even if a Professor does some of the same work as an Instructor, that does not mean a person doing that overlapping Work is necessarily anything more than an Instructor. The 'College also aFgued that the' Un[on has failed to establish that Professors are-teacJ~ing oours'es such a~'CAP'L14~8. 'While..some.of.the - 24 - documentation filed does'show partial load employees teaching the 1498 course, the College asserted that the Union's failure to properly prove their Professorial status defeats the claim. It was argued that the evidence does establish that the Instructors are working under the direction of a Professor. It was stressed that a Professor does not have to hover over an Instructor or be in a classroom on a regular basis to satisfy the definition in the collective agreement. Instead, the Professor needs to be available to provide direction in the Same way as a senior academic officer, it was argued that the evidence of Dean Sharpe indicates that the Coordinators were assigned the responsibility of providing this direction and that this is s~fficient in order to satisfy the collective agreement. The College then turned to the terms manipulative skills and techniques as applied to the evidence in this case. It was argued that the Swan Report, supra, indicates the intention of the language in the collective agreement is to have Instructors be responsible for "areas of simpler subject matter, at lower · levels." It was said that the subject matter of the courses under examination all fit within that intended level. In terms of the words "instruction directed to the acquisition of manipulative skill and technique", the College relied on definitions in the Canadian OxfOrd Dictionary, copyright 1998, which include "handle, treat or use, especially skillfully (a tool question material)." It was said that this definition indicates that the term 'manipulative' refers to more than the use of physical objects and is appropriate for terms such as altering, editing or moving. This was said to indicate that the teaching involved in courses such as CAPL 1498 and 1594 is the .teaching of man.ipulati~e skills within the meaning of the colleotive agreement. The Co. Ilege relies on.the decision i'n George Brown Co#ege'an'd Ontario Public Serv~c.e - 25 - Employees Union unreported decision of M.G. I~litchnick dated May 12, 1993 to establish that for courses such as typing, where the role of the Instructor is simply to guide students through a manual, the Instructor'designation is appropriate. It was argued that this case should be read in the context of the evolution in technology whereby learning word processing is akin to. learning typing two decades ago. Counsel for the College points out that in all the jurisprudence that was filed where grievances such as this succeeded, the Union was able to demonstrate that the teacher was responsible for courses with a significant component of theory in the curriculum. It was argued that in the courses in this case, especially CAPL 1498 and 1594, the students are simply working their way through tutorials and do not have to learn any theory in order to succeed. counsel for the Employer also stressed that the CAPL 1498 and 1594 courses are being taught through prepared courses of instruction and according to prescribed instructional material and formats. It was said that the students are simply being taught a manipulative skill and technique that involves "pointing and clicking" a mouse in order to achieve the desired effects available under the PowerPoint or Excel programs. Further, it was said that this is a two-credit course which reflects that this is of a lower level of complexity than most College courses which grant 3-5 credits. It was also argued that Professor Emmons' testimony should not be relied upon because while she tried to compare her teaching of COMP 516 in 1997 with the current CAPL1594, this was said to be an inappropriate comparison. It was stressed that Dean Sharpe had explained that Microsoft has developed far more "user friendly" programs over the years and Professor Emmons' previous course had included the much more complex .and difficult Access program. Further, the Employer relied on the evidence of D. ean Sharpe when he explained - 26 - that unlike the system that Professor Emmons I~ad taught, the current Excel program includes formulas and does not demand that students be able to calculate. It was argued that students are not expected to achieve the conceptual levels of algebra or problem-solving that is expected in courses taught by Professors. Basically, it was said that the students "are just' taught how to manipulate the tool", the tool being Excel and PowerPoint. Turning to the evidence regarding Math 1035, the College referred to the course outline that describes it as a "refresher course" and that deals with "hands-on arithmetic." It was Said that this course simply teaches the "rules of thumb and tricks of the trade" and deals with arithmetic at a very basic levell It was stressed that this course has been redesigned and is now appropriate for Instructors because the culinary department no longer wanted a mathematician teaching the course. It was said that the current course simply involves a series of exercises that students work through using math that is "about as basic as you can get." The College disputes that the Math 1035 course is comparable with Math1125 because the nature of those students and their disabilities require the Professor to be able to essentially "rewrite the curriculum" for each student on a daily basis in order to adapt to their individual learning needs. Counsel for the CoLlege stressed that the Board of Arbitration was not being asked to conclude that anything being taught at a basic level cannot be taught by a Professor. However, it was said that the level of math in the Math 1035 course is very simple, unsophisticated and appropriate for an Instructor classification. -27 - As a general response to the Unio'n's submissions, counsel for the College argued that the Union's position would result in a much more restrictive definition of Instructor than the previous jurisp~'udence supports. The College also challenged the Union's assertion that the Co-Ordinator's SWFs do not indicate the level of direction necessary to satisfy the definition. On the contrary, it was argued that the Co-ordinator's SWFs do indicate sufficient time to meet with Instructors. Further, the Board of Arbitration was asked to draw a negative inference from the failure of the Union to call any of the Coordinators to dispute Dean Sharpe's assertion that he had instructed them to provide direction to the two Instructors. Accordingly, it was said that Dean Sharpe's evidence Stands unchallenged and should be accepted. The Union's Replv Regarding the onus of proof and the Union's alleged failure to call the' Instructors and Coordinators as witnesses, c°unsel for the Union responded by stressing that this case proceeded as a Union grievance on agreement of the parties. The Union asserts that the evidence that was' presented fulfills the onus of proof. Fudher, it was pointed out that both the Union and the College were free to call the Coordinators or the Instructors. Accordingly, it was argued that their absence as witnesses could lead to a negative inference against either or both parties. The Union also asserted that this is not an appropriate type of case to look at the "best fit" of Professor or Instructor classification, given the definition of an Instructor is a limited subset of the Professor designation. - 28 - The Union also asserts that it did meet the onus of proof of establishing that CAPL 1498 is being taught by Professors. It was argued that the evidence of Professor Rosen and the documentary evidence established that partial load staff continues to teach CAPL i498 at the Professor level. The Union also stressed that it does not challenge Dean Sharpe's .~. testimony that. he has told the Coordinators to provide direction to the Instructors. However, it was argued that the evidence does not establish that the nature of the actual direction being given is sufficient to bring the College within the meaning of direction under the collective agreement as the cases have accepted. Turning to the Employer's use of dictionary definitions for the words 'manipulate,' 'skill' and 'technique', it was argued that these definitions are irrelevant ' given that the parties have the Swan report which defines the. meaning and intent of the words in the collective agreement. The Decision Both parties acknowledge the importance of the Swan Report issued in January 1978. That Report was the culmination of the Classification Review Committee's study to determine, inter alia, whether there should be a new Instructor classification established in the collective agreement. The Committee concluded that there ought to be a separate classification of Instructor and provided the following interpretive assistance: '-Fhe .salary structure used is'more in accord with a more restriCtive.use of the Instructor classification, where it.is limited to areas o'f simpler - 29 - subject matter, at lower levels, or in less demanding pedagogical modes. (Page.25). In some circumstances it may be possible to identify a separate, subordinate teaching role to be performed under direction. The scope for that role .... requires careful delineation if .it is not to become yet another source of dispute between the parties ........... . The elements which we consider ought to 'be comprised in the new definition include instructional tasks which are based on clearly and thoroughly established course objectives, or those which are based on an integrated course format such as program instruction packages or computer-aided instruction, or those that are directed to the achievement or acquisition of a skill or technique. We would expect that these tasks would be carried out in association with the teaching master [Professor], who would bear responsibility for curriculum design, development and validation. What we are trying to identify is a subordinate teaching role which would adequately reflect the difference in remuneration which now exists between the two scales and which also coincides with an appropriate division of tasks in the teaching job. [Page 30~31] The Committee's final report issued in July 1978 clarified these .previous comments. It was said at pages 2 to 4: We ..... intend to identify a restrictive scope for the Instructor category, and we had sought a form of words which would have that effect .... .... we did not intend to create a classification which could be applied in any discipline at any level of instruction and in any pedagogical model. We intended rather a limitation to what the Union calls "hands on" skill training, and related instructional methods, and the use of the expression "and limited to instruction directed to the acquisition of the skill or technique" ought to have made this clear .... The wording, we have settled upon is designed to create a classification dedicated toinstruction at a level where the academic -preparation and decisions have been in advance, and 'the role Of the teacher is limited-to-s-~peFvis.!on .of the 'learning process.. ~We iconsider that, at-a certain level of sophistication o'f subject matter, - 30- this sort of relationship becomes impossible and it is for this reason we have introduced the limitation to instruction directed to the acquisition of.'a skill or technique', as our original definition provided. After much resort to dictionaries and other references, we are still of the view that "skill or technique" describes the sort of learned aptitude which we think Instructors might be employed to impart. Craft is also a word which captures the meaning we wish to convey, although most dictionaries define "craft" by the use of the word . "skill." In order that we may not be misunderstood, however we decided to use the adjective "manipulate" to convey the meaning we intend: We think that this will produce a certain redundancy, but that redundancy is probably preferable to a disputed interpretation. The Swan report then" set out the class, definitions for Professor and Instructor which continue in the collective agreement to this day. Despite the Classification Review Committee's hope that its extensive work and careful clarifications would avoid disputed interpretations, a great many arbitration boards have had to provide assistance and jurisprudence has developed on this issue. In the St. Lawrence College (Shope) case, supra, the Board of Arbitration was asked to look at the work of a health care aide teacher. Many manipula;dve skills were being taugi~t, such as how to change a bed pan. But the case turned on the fact that students were also being taught more than manipulative skills in that they were given instructions on attitude, planning and the activation of patients. Therefore, because the teaching went beyond imparting simple manipulative skills, the position was held to be at the Teaching Master (now referred to as Professor) level. The teaching of these types of cogitative skills were contrasted with the teaching of typing which relied heavily on packaged materials and prescribed texts, all of which were directed at the acquisition solely of the manip~31ative skills or techniques necessary to operate a typewriter. The St. La.wrence College (B(3o.a) (~ase, s.~pra, dealt ~i"th the teaching of six 'lab. courses. Most of- these labs were complementary to a lecture course given by a Teaching -31 - Master (Professor). There was no significant degree of direction or instruction given by the Teaching Master with respect to the contents or conduct of the lab. The board of arbitration noted that regular tests and quizzes were offered and noted that: Instruction whose .efficacy is measured by a written test is not, we should think, likely to be instruction in a purely manipulative skill. Such skills are more likely to be tested by some practical examination. (Page 8) It was noted that where the techniques being taughit are also being formed by a certain level of theoretical knowledge, then the teaching goes beyond the level that is appropriate for an Instructor. In the St. Lawrence (Lubimiv) case, supra, the teaching of.surgical assisting was "to a large extent directed to the acquisition of manipulative skills and techniques." However, it.was also concluded that the teaching went beyond that in a significant way. Students were being taught about the characteristics of drugs and their appropriateness in certain situations, attitude and deportment, and were being given an understanding of their work and its implications on their professionalism. All those were factors which were said to upgrade the level of instruction to that of .prOfessor. The cases cited above indicate that where the work of a teacher goes beyond the restrictive definition of Instructor, then the Professor classification is appropriate. Another approach taken in the relevant jurisprudence is to look at which classification is the "best fit" for the core duties. This approach can be seen in the Fanshawe (O'Brien) case as well as George Brown'(.Union grievanoe). The decision in-the case at'hand need not.resolve the debate about whether -the ~best fit' - 32 - or 'restrictive approach' analysis is most appropriate. Instead, this case shall simply analyze the three courses for which' we have been presented evidence. Those determinations, together with the relevant persons' assignments will dictate the proper classifications of the people in question. Accordingly, the three courses shall be analyzed in accordance with the case law cited above, the Collective agreement and the following summation of the relevant principles. It must be concluded from the case law, the Swan Report and the collective agreement that there are certain hallmarks that can be attached to both the Instructor and the Professor classifications. The most important definition of the classifications comes from the collective agreement itself. For an Instructor, this is a restrictive definition where the duties 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 · according to prescribed instructional formats · directed to the acquisition of a manipulative skill or technique · ' under the direction of a Professor. Notwithstanding these restrictions, the Instructor remains responsible for and has the freedom to provide a learning environment which makes effective use of the resources provided. S/he can select suitable learning materials from those provided or identified to facilitate the attainment of the educational objectives of the course. This instructional teaching is; · applicable to "hands-on skill training and related instructional methods" or hands-on demonstration of practical techniques · in areas.of'simpler subject matters:and,.at lower ~evels - 33 - · limited to a supervision process whereby students work through prepared materials · where the efficacy of the teaching is tested 15y way of a practical test rather than a written examination · in a "subordinate teaching role" where a Professor (i.e. a Coordinator) is available to give direction and guidance to the Instructor related to the teaching assignments. The class definition of a Professor is much broader than that of an Instructor. The class definition makes the Professor responsible for providing academic leadership and for developing an effective learning environment for students. The hallmarks of a Professor involve teaching that goes beyond the acquisition of manipulative skills in "a significant way." The efficacy of the teaching is expected to be tested by written examinations. Where manipulative skills are being taught, a Professor is also' expected to inform the students of the theoretical knowledge to understand and utilize such techniques. This would involve the teaching of theory as well as practice. Each of the releVant courses can now be examined in detail in accordance with these principles. Math 1035 certainly contains more basic subject matter. Indeed, much of the mathematics was shown to be at the level of elementary school curriculum. The course materials-do ask students to perform simple adding, subtracting, multiplication and division calculations. However, the evidence also shows that more than simple ari,thmetic',is :b,eing asked of the students. T. he students are given-a review of simple-mat'hematical concepts and then asked to appl:y.them in a way t.h, at - 34 - will be relevant to a commercial kitchen. They are [aught how to solve kitchen problems with the use of the mathematical formulae. Without acquiring an understandir~g of the concepts, they will not be able to know when, where or why the formulae should be invoked. Sometimes the calculations also require mUlti-step problem-solving similar to the types found in Math 1100 which the College asserts is being appropriately taught' at the professorial level. Accordingly, in the words of Dean Sharpe in another context, the students are'taught to "bring together understanding and hands-on learning" by applying the mathematical principles to the practical problems in a kitchen. Further, mathematics is an abstract concept and the students are being asked to apply'those concepts to practical situations. The students are taught how to convert, solve and understand certain problems. Their success in the course is tested by way of examinations which involve "word problems" and problem solving requirements. Accordingly, it is difficult to see how this course can be considered to be one where the instruction is directed to the acquisition of the manipulative skill or technique. For all these reasons, we have concluded that Math 1035 involves teaching that goes beyond the restrictive definition of an Instructor. We are reinforced in this conclusion by having reference to other courses being taught by Professors at the College. In particular, the evidence regarding Math 1100 indicates a significant similarity in the subject mat[er in that horticulture students are' being taught how to use fairly basic arithmetic to mix and apply formulas. The horticulture students are also tested by way of word questions and their problems also involve multi-step calculations. The Math 1100 course is taught by a Pr~fess0r and we see no conceptual differences .~vith'Math 1035. - 35 - In'addition, we see similarities between Math 1035 and 1125. In the latter course, very basic mathematics is also being taught, perhaps even at a simpler level than Math 1035. It is true that the peda'gogy may be more demanding because of the vocational students' lower level of mathematical aptitude or achievement when they begin this course,' This may require more sophisticated teaching skills than are required for the Math 1035 course. However, nothing in the class definition of either Instructbr or Professor indicates a differentiation of classification based on · the levels of achievement, aptitude or expectations of the students. Accor~lingly, the distinction between the students in the two courses is not relevant and does not support a distinction in classification when the subject matters are so similar. We are mindful of Dean Sharpe's clear intentions when he directed that the Math 035 curriculum be revised to develop Math 1035. We accept that the current course is designed to teach basic mathem'atics with practical applications to the culinary students. We accept that the course has been redefined to fit the objectives of the Culinary Program and that this has involved a scaling'down of the mathematics involved in the course. We also accept that there was a resulting reduction in the number of credits allotted for this course. Further, the Math 1035 course may have prepared materials and may be being taught in a prescribed format. These are certainly relevant factors. However, they do not outweigh the essential nature of the material being taught and the fact that the course is not one that is directed towards the acquisition of manipulative skills or techniques. A teacher of this course must go beyond that to give the students an understanding of mathematical concepts so that they can be 'appropriately applied to the culinary setting. The teaching' goes beyond supervising. We do not see any fundamental changes from Math 035 to 'Math 1036 that would, confine~-the essential subject matter into the restrictive.~.lass definition of Instructor. - 36 - For ali these reasons, we have concluded that the Math t035 course involves duties and responsibilities above and beyond those contained in the class definition of Instructor. Accordingly~ we find that the teaching of this course is being done at the level of a Professor. CAPL 1498 is the introductory course in computer literacy that teaches students "hands-on computer skills necessary for success in their college programs." This course has a prepared course of instruction, a prescribed instructional format and expects students to work through a Series of "hands-on exercises" designed at acquiring computer skills. While the teachers may have the freedom to use other materials as they wish, the materials contain a complete set of exercises and instructions for the students. At the end of the course, students are evaluated on the basis of a "hands-on tests" where they are given specific tasks .to perform using 'the computer. Nothing in the course description or objectives asks that the students be able to analyze, understand' theory or do anything beyond performing "hands-on" exercises with Windows and on the Internet. The objective of the course is to give "hands-on computer skills!' and for students to "learn how to use" the systems. This course was fairly described in evidence as akin to "typing in the millennium." In all these ways, the course seems to be completely consistent with a kind of teaching expected of an Instructor under the class definitions of the collective agreement. The only aspect of the evidence that makes this conclusion problematic is the fact that a number of Professors are being assigned to teach this Course. The Union raises the compelling argument that the classification system demands that people doing similar work should be paid at a similar level. However, the evidence of Dean Sharpe does satisfy the Board of Arbitration that'Professors are-b..e, ing assigned to teach CA-PL'1498 in .or-(Jer to-fill.out their SWFs. Further, the Coordinators are being asked to teach the course in order to keep themselves current with the students' needs. Accordingly, it appears that their core functions remain that of a Professor even though they are'teaching a course such as 1498. In addition, it is to be recalled that there are overlapping functions for Professors and Instructors.. A Professor does everything that is expected of an Instructor, and more. Therefore, the mere fact that a Professor is assigned to teach a course that is also appropriate for an Instructor is not, in itself,' enough to establish that a course is being taught at a professorial level. Accordingly, the Board of Arbitration is satisfied that the teaching of CAPL 1498 is'consistent with the class definition of Instructor. The CAPL 1594 course is the most problematic one presented by the evidence. The course description promises that this is an introductory course where. the Excel portion provides students with introductory, hands-on skills. The PowerPoint portion of the course then provides students with skills required to create, modify and refine slide presentations. In so far as the Excel portion of the course is concerned, we are satisfied that it is similar to the essential elements of the CAPL 1498 course in that it teaches the manipulative techniques necessary to use the system effectively. The creative .possibilities available with PowerPoint suggest that more than manipulative skills may be being taught. However, there are several problems with the Union's claims with respect to this aspect of the case. The Union bears the onus of proof in this type of grievance. We did not have any evidence from someone Who is actually teaching -the course. We.appreciate.Professor Emmons' evidence and accept that it was honest. However,'she does not-'have sufficient knowledge of the current course to - 38 - be persuasive. The course she taught in the past included a component of Access which is no longer part of the CAPL 1594 course. Dean Sharpe's evidence convinced the Board of Arbitration that the inclusion of Access makes the previous course different from the one that is being taught. Further, there has been an evolution in the Excel .and PowerPoint programs in the few year¢ since they were taught by Professor Emmons. Those evolutions have made the program more "user friendly" and demanding of lesser understanding from the students. Accordingly, the students in this course are merely required to be able to learn how to use the systems and manipulate the'tools trdat the programs provide. There is nothing in the evidence that Suggests that any aspect of the Excel portion of CAPL1594 involves more than the kinds of manipulative techniques being taught in CAPL 1498. CAPL 1594 also has prepared course materials and a prescribed instructional format. The course mateiials take the students through prepared workshops and exercises that involve manipulative skills-or techniques necessary to operate or navigate the programs. The course objectives include the students learning how to "enter," "format," and being able to "complete hands-on . practice exercises.." These are manipulative skills where the teacher need only supervise the students as they work through the prepared materials. It is the PowerPoint aspect of the CAPL 1594 course that raises some difficu!ty with the determination of this case. Here, the evidence establishes that students are taught not only how to use the program, but how to create, modify, format, edit and refine presentations. They are also taqght how to create.and enhance drawings, build effects, Produce freehand animatien and work'with different s_t-yles. This work can involve a.l~ind' of' creativity that goes beYond sirr~le - 39 - manipulative skills or techniques. However, tha;( is consistent with the class definition of Instructor because it provides that such a teacher "is responsible for and has the freedom to provide a learning environment which makes effective use of the resources provided." The evidence provided is that the teacher's role in this course is to instruct the students about how to make effective use of the Excel and PowerPoint systems. This does not bring the teaching outside of the class definition of Instructor. It is easy to see creative and/or cogitative elements in almost any kind of leaning. However, the objective of the CAPL 1594 course is to provide students with the skills required to create, m°dify, format and refine slide presentations. The focus is on the "introductory, hands-on" manipulative skills required to make or build the slides, not their creative potential. The testing is of the "hands-on" type, where the students are given specific tasks to perform using the computer. There is no evidence that suggests that their creative abilities are what are being tested. Therefore, it must be concluded that while there may be creative elements in the PowerPoint 'portion of this course, they are not significant enough to elevate the teaching of CAPL 1594 out of what would be appropriate for an Instructor. This leaves unansWered the Union's claim that the Instructors are not working under the direction of a Professor, as is required under the class definition. We accept that there is no direct evidence of actual supervision being given by the Coordinators. Nor do the Coordinators' SWFs reveal that extra time for direction was attributed when the Instructors relevant to this case were hired. However, we do accept the evidence of Dean Sharpe when he said that he specifically told the Coordinators to give direction to the Instructors. This is also confirmed in the Ceordinato.rs' position-descriptions. We find this evidence sufficient part~cu!arly in light o'r the'St. Clair College..(Webs. ter) decision, SUPra, wherein it-was indicated that - 40 - there is no expectation that there will be frequen;~ need for direct recourse to the Professor for regular, direct supervision. As the case concluded: "It is sufficient ..... that such direction be sought as and when it proves necessary". The College in this case has made the direction available to the Instructors. That is sufficient to satisfy " the requirements under the collective agreement. Conclusion In conclusion, it' has been determined' that the Math 1035 course involves teaching that goes beyond the restrictive scope of the Instructor class definition in the collective agreement. On the other hand, we have concluded that the CAPL 1498 and 1594 courses involve teaching that is consistent with the class definition of Instructor.' This leaves undecided the question of remedy. The SWFs for Andr~ Roy indicate that at all relevant times he Was teaching predominately Math 1035. Accordingly, it would appear that he is improperly classified as an Instructor. The classification should be amended to that of a Professor and he is entitled to compensation retroactive to the filing of the grievance. Further, the Union is entitled to any dues that may flow as a result. The other position in question is that created by the courses being taught by Mr. Domitrek. His teaching responsibilities involve a mixture of CAPL 1498 and 1594 courses throughout the relevant period. Therefore, it would 'not appear that any remedy wou'ld be available for this .position. - 41 - The Board of Arbitration remains seized with any issues of implementation that may arise. Dated at Toronto this 8th day of January, 2004 I dissent' in part. See attached "Jacqueline G. Campbell" Employer Nominee "Ron Davidson" I dissent in part. See attached Union Nominee PARTIAL DISSENT OF.RON DAVIDSON, uNION NOMINEE: I concur with the majority decision with reference to the Math 1035 course involving teaching, that goes beyond the scope of the Instructor class definition in the Collective Agreement and the remedy that flows from that decision I also can concur with the teaching of CAPL 1498 and the Excel portion of CAPL1594 course being somewhat consisteni with the definition of Instructor. However, I am not persuaded that in CAPL 1498 and CAPL 1594, the Instructors are working under the direction of a Professor. in addition, I must take issue with the majority decision concerning the CAPL 1594 Power Point portion of this course. The evidence shows that Professor Roy and Professor Domitrek were partial load or part-time Professors teaching the courses that precipitated the grievance. At the direction of Dean Sharpe, Professor Roy' revised the courses to the extent that the College decided, that they were now course that could be assigned to the lower paid classification of Instructor and accordingly posted the positions. Professor Roy and Professor Domitrek were successful appliCants for the full-time instructors positions. The Board was hampered by the. fact that Professor Roy and Domitrek, who are currently teaching the courses, declined to give evidence. While this could be considered a flaw in the Union's case, it certainly was not fatal. By way of evidence, the Board could only access the evidence of Professor Emmons as opposed to that of Dean Sharpe. - 43 - As a staff administrator for many years, I have held the view, that those in a supervisory role, exercise the skill to devise how a job should, be done and devote as much time as they can afford, to obtain that objective. However, if you want to know how the job is done, you ask the person who is actually doing the job. Professor Emmons was an impressive witness. Articulate, honest and obviously aware of what her teaching position entailed: On the other hand, Dean Sharpe testified that he had not taught a course in the last eleven years. As the courses were redesigned at his direction, it was not surprising, that his evidence appeared tailored to support the reasoning behind the need to redesign the courses. On the basis of Professor Emmons evidence, I was convinced that there was not a significant difference between the. course she taught and the current Power Point sections of CAPL 1594. Further, the poWer Point section went beyond the teaching of manipulative skills to the degree that cognitive skills were required and therefore is in violation of the Collective Agreement, which states that Instructors are "limited to instruction directed to the acquisition of a manipulative skill technique; and under the direction of a .Professor." With regard to the question whether the Instructors were working under the direction of a Professor, I have no doubt that Dean Sharp~ did give the coordinators instructions'to direct Instructors. However, .the question that needs to be answered is, was that action sufficient to comply with the wording of the Collective Agreement that Instructors are to work "under the direction of Professor." Onoe again, the Board was not afforded the luxury of hearing testimony from the Co- ordinator§ r. esponsible for directing the Instructors. What w.e do-know is, that-tl~'e"co- - 44 - ordinators'. SWF's show, that no extra time for direction was attributed when these instructors were hired. We also know that under cross examination, Dean Sharpe. acknowledged, he did not know if meetings between the coordinators and Instructors, that could take place if necessary, ever did take place. He didn't know if Instructors take 'advantage of the extra hour allotied for meetings. He acknowledged, he had never instructed Coordinators to attend classes conducted by Instructors. 'He has no knowledge of Co-ordinators attending or sitting. in on a class. The totality of evidence, surely is insufficient to meet the requirement to work "under the direction of a Professor." In the majority decision on page of this award., in referring to evider~ce by Dean Sharpe it states: He referred to the two' instructors affected by this case and stressed, "they are fully qualified and experienced in what is needed in the classrooms and the labs." Surely one would expect, that Professors who had previously taught similar courses would be fully qualified and experienced. "It is regrettable, that this Board relies in part on the St. Clair College (Webster) decision that it is sufficient ... that such direction be sought as and when it proves neces, sary." Such interpretation only gives encouragement to management to circumvent the Collective Agreement, by hiring Professors to do work that is revised to try'and fit the pattern of the instructor classification. Accordingly, for all of the reasons noted above, I dissent from the award, and would have allowed the Union Grievance and granted the same remedy for the teachers of the CAPL 1498 and CAPL 1594 courses as granted for the teaching of the Math - 45 - 1035 course by the Board majority and awarded the Union any dues that flowed from this decision. DATED at Grimsby, Ontario this 8th day of January 2004. "Ron Davidson" Union Nominee - 46- PARTIAL DISSENT OF JACQUELINE G. CAMPBELL, EMPLOYER NOMINEE: While I am in agreement with the award regarding the teaching of the CAPL 1198 and 1594 courses being consistent with the class definition of Instructor, I do not c°ncur with the finding that the MATH 1035 course is taught at the Professor level. In his evidence to the Board, Dean Sharpe described the course as teaching students manipulative skills in the use of calculators to solve simple mathematical problems. It is designed primarily for culinary students who are taught the "rules and. thumb and tricks of the trade" and deal with arithmetic at a most basic level. Dean Sharpe also testified that he directed the Coordinators for the courses in dispute to provide directi°n to the Instructors offering the courses. He observed coordinators discussing matters with the Instructors and' received copies of e-mail exchanges between them. While no direct evidence from the .instructors or Coordinators was provided to the Board, Dean Sharpe's testimony was not contradicted. On this basis, I would have concluded that the teaching of MATH 1035 was overseen by a CoOrdinator. Given the nature and level of arithmetic taught in the MATH 1025 course, the teaching of manipulative skills regarding the use of calculators and the direction to be provided to the teachers involved, I would have found that the Instructor classification was the more appropriate "best fit" for this position. DATED at Toronto, Ontario, this 8th day of January, 2004. "Jacqueline G. Campbell" Employer N-omi~ee ..