HomeMy WebLinkAboutUnion 05-06-20 IN THE MATTER OF AN ARBITRATION
BETWEEN:
LAMBTON COLLEGE
(the "College")
- and -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Local 152
(the "Union")
RE: LEARNING STRATEGIST GRIEVANCE #312501
Before: M.G. Mitchnick - Chair
Ron Davidson - Union Nominee
R. Gallivan Employer Nominee
Appearances:
For the Union: Gavin Leeb Counsel
Jim Sharp Chief Steward, Local 125
For the College: Robert Atkinson - Counsel
Guy Bertrand - Director, Labour Relations
Hearings held in Sarnia, Ontario on April 14, and November 10, 24, 2004, January 10
and 11, 2005.
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AWARD
The Union, Local 125, grieves that the College violated the collective agreement
when it improperly classified the position of "Learning Strategist/Assistive Devices
Technologist" as a position in the Support Unit (Support Services Officer C) rather than
in the Academic Unit (Counsellor). It is important to note that, while the incumbent,
Ingo Niestroj, was the Union's chief witness, this is nevertheless a Union Policy
grievance, challenging the fact that the position was posted as a Support Unit opening. If
the Union is successful in its challenge, it follows that the position would have to be
submitted to a re-posting, with the correct Unit and rate set out for any interested
personnel.
As will be discussed the position in dispute arises from a provincial government
funding initiative to provide additional or "enhanced" services specifically for those
students identified as "Learning Disabled". The assistance includes instruction both in
"learning strategies", and in the use of computer-based "assistive technology". There are
a number of"Learning Strategist" positions that have come into existence at Colleges
across the province largely as a result of this new funding initiative, and the board is
aware that their placement as either Academic or Support positions is mixed. This is the
only College of which the board and parties are aware where because of its size and the
consequent demand for the service, the two facets of this instructional assistance are
combined in a single position.
By way of background, there is at Lambton a General Counselling Office, which
serves the student population at large, and provides the normal range of vocational,
academic, and personal counselling as needed. There are 3 Counsellors in that Office,
along with a part-time receptionist/support person. All of the Counsellors are required to
have a Masters degree in either Counselling or Counsellor-related fields of study, such as
Psychology. As the College's literature suggests, to the extent that coaching is required
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in "classroom/learning strategies", or "strategies for success" like time management and
study skills, for the general population the Counsellors in the Counselling Office provide
it. There is in fact for first-year students a general "Orientation" course that touches on
many of these same topics, and it is traditionally delivered (and SWF'd) by Counsellors
in the Counselling Department. The job of the Counsellors as well involves assessment
and testing, both academically and vocationally, as contemplated by the position
Definition.
Physically separate from that General Counselling Office is an Office for
Services for Students with Disabilities. This Office provides counselling and other
services specifically for students with a form of disability, be it (in the main) a physical
form of disability, or what has been diagnosed or identified as a "learning disability".
That Office before the Enhanced Services initiative was staffed by a "Special Needs"
Counsellor, in the Academic Unit, and a Support Services Officer in the Support Unit.
There is in the front area of the Office a work station for the SSO which serves as
Reception, as well as the office of the Counsellor. Off that front office are a number of
glassed cubicles equipped with adaptive software, largely for the use of student test-
taking. Further down the corridor is the Computer Lab, off of which now are also the
offices for the Learning Strategist/Assistive Technologist, and for the parMime Braillist
and Sign Language Interpreters. This mini-lab is formally called the Accessibility Lab,
and houses seven computers. It existed well before the Enhanced Services initiative,
and provided assistive software, such as voice-to-print conversions, and vice versa, to
the physically-and learning disabled at large. The explanation and demonstration of
those programs was done at that time by the SSO, Kelly Dan. Ms. Dan continues to
perform that role for the physically-disabled students, and may do so as well for the
"learning disabled" group if the incumbent of the new position, Mr. Niestroj, is not
available.
The current Special Needs Counsellor, Bonnie Dawe, came to the position in
1991, in response to the following posting:
SPECIAL NEEDS COUNSELLOR
Lambton College invites applications for a full-time Special Needs
Counsellor in the Academic Bargaining Unit, reporting to the Director of
Learning Services.
Duties will include:
- assessment, documentation and placement of students into the proper academic
level at the College;
- consulting with faculty regarding student capabilities;
- providing services to enhance student performance;
- liaison with community groups and agencies that refer students to the College;
- chairing the College's Special Needs Advisory Group.
Qualified applicants will have:
- a Master's degree in educational psychology or counselling
- community liaison experience
- excellent communication and interpersonal skills.
Assets include:
- a Special Education Certificate
- education/experience in the health care field.
That position at the time included all of the services that Counsellors on the General side
continue to perform, including coaching or instruction as needed in the package of skills
called "learning strategies". However, for the narrow group of specifically-identified
"learning-disabled" students, the Enhanced Services Funding undertaken by the
provincial government, through LOTF, the Learning Opportunities Task Force, allowed
the College to split off from the Counsellor role in the SSD Office the actual instruction
of these latter "learning" skills, together with the adaptive technology, to a new
position. In its Information Package for funding applicants (as well as in its Report on
the Pilot Projects that had been undertaken), the Task Force described the nature of these
new types of positions as follows:
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Learning Strategists (LS)
The value of learning strategy instruction and coaching has been well
established within the LOTF pilot projects. The role of learning strategist
is pivotal in helping students to understand their learning disabilities, to
assess their capacity to use learning strategies and to apply such strategies
to better actualize their academic abilities. A learning strategist who
works with students with specific learning disabilities should be able to
demonstrate skills and knowledge in the following areas:
· Knowledge and understanding of learning disabilities and their impact on
how students can learn to function effectively and efficiently in the post-
secondary educational sector.
· The ability to interpret and explain LD assessments to the students.
· Communication with students and with a variety of internal contacts
including other student services staff and faculty members.
· Coaching and giving feedback: being able to influence students to
consider, learn, apply and evaluate learning strategies.
· Innovative thinking: developing specific variations on broad strategies to
respond to unique student strengths and needs and varying classroom
demands.
· Problem-solving: being able to respond flexibly to difficulties that students
encounter in applying learning strategies.
· The skills of LD specific counselling to deal with students' reactions to
negative learning experiences, feelings such as helplessness,
defensiveness, anxiety, low self-esteem and an initial lack of self advocacy
skills.
· The ability to focus on results: keeping the outcome in mind, i.e., increased
efficiency in learning for students with learning disabilities.
· Personal sensitivity: recognizing student strengths and limitations and
responding to those with empathy and adaptability.
It is therefore anticipated that this fund will enable institutions to hire
learning strategists who demonstrate these competencies and who will
deliver the requisite specific services, based on the institution's assessment
of their students' needs for enhanced services and supplementing learning
strategy services already provided...
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The reference to "the skills of LD specific counselling" is to be noted, and will be
discussed further below. The Backgrounder went on to describe the computer-based
"Assistive Technologist" position as follows:
Assistive technologist (AT)
The increasing availability and successful use of assistive technology
suitable to individuals studying in the post-secondary sector makes this
one of the more productive and requested academic accommodations for
those with LD. LOTF's research has shown that the benefit of such
services without the support of a knowledgeable technologist is minimal.
Such a professional should be able to demonstrate the following skills and
knowledge:
· Technical expertise with a variety of software and hardware, competence to
demonstrate these to students with LD in user-friendly ways and a commitment to
maintaining that expertise as the technology changes.
· A network of contacts within the vendor industry, in order to remain current with
trends in the assistive technology field, including new computer applications and new
ways to apply assistive technology in educational settings.
· Communication: the ability to convey directions, concepts and applications to
students, colleagues and faculty members.
· Problem-solving: being able to adapt to individual student strengths, limitations
and aptitude in using assistive technology.
· Adaptability: being able to respond to differing demands in the academic setting
and integrating the technology into and with the material taught.
· Coaching and giving feedback: being able to influence and encourage students in
learning to use assistive technology with success and to give constructive feedback in
the learning process.
· Information seeking: constantly seeking alternatives for students.
· A thorough understanding of learning disabilities and the way in which
technology can assist students with LD.
Depending on the size of the institution and the numbers of students with
learning disabilities, institutions will be able to apply for funds to hire a
half-time or a full time appropriately qualified assistive technologist.
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The number of LD-identified students at Lambton, as noted however, did not support a
stand-alone position of either Learning Strategist or Adaptive Technologist, and hence,
again for Learning Disabled students only, came the creation at Lambton of the current
combined "Learning Strategist/Assistive Devices Technologist" position. The
College's own application for the position, as it envisioned its duties and qualifications,
described those as follows:
Position Summary
The Learning Strategist/Assistive Computer Software Technologist will be
responsible for assisting students with learning disabilities to become
independent learners through the acquisition of meta cognitive Strategies
and computer skills. The incumbent must maintain a current knowledge of
learning strategies for adults with learning disabilities and be up to date on
computer technologies designed to ameliorate the effects of a learning
disability.
Key Duties
The Learning Strategist/Assistive Computer Software Technologist will:
1. Work with students with learning disabilities to develop effective
· Study skills
· Time management skills
· Organizational skills
· Memory techniques
· Note taking skills
2. Help students implement the recommendations of their psycho-educational
assessments
3. Deliver workshops/seminars to students with common learning needs
4. Instruct students on the use of assistive computer software e.g. Kurzwell 3000,
dragon dictate, text help
5. Determine the most appropriate computer software for individual students
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6. Provide input into an individual's needs when purchasing technical equipment
Education and Training
a) Minimum level of education: post secondary diploma in related fields of
education, disability studies or computer studies.
b) At least one year of experience working with adults with learning disabilities
Special Skills
- An understanding of the needs and challenges of adults with learning disabilities
- Thorough working knowledge of assistive computer software and word programs
- Excellent communication skills\
- Self-directed
- Thorough knowledge of learning strategies for adults with learning disabilities
- Experience in directing seminars/workshops
- Problem solving skills
- A team player
Consistent with that application, the posting to fill the job at the College, when in the
summer of 2003 that came to be a full-time position, read as follows:
Duties:
Working in support and under the direction of the Counsellor in the
Services for Students with Disabilities Centre, the Strategist will work
with students with identified learning disabilities to determine and
implement successful learning strategies and skills such as memory
strategies, organizational and study skills. As well, the incumbent will
train, advise and supports students with identified needs in the use of
assistive devices, largely computer-based.
Qualifications:
· Postsecondary diploma or degree in related fields of education or disability
studies
· 1 to 3 years experience in a special needs or educational environment
· A good understanding of the issues and challenges faced by students with
learning disabilities
· Good knowledge of coping and learning skills and the ability to train others to use
them
· Proficiency with assistive devices and computers
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· Excellent interpersonal skills, organizational skills
· Excellent oral and written communication skills
· The ability to work independently and as part of a team
The successful applicant, and now incumbent in that job, was Mr. Ingo Niestroj.
Mr. Niestroj has worked at the College in various capacities since 1980, and has
completed his Bachelor's of Education, and a Masters degree in Language and
Literature. He has taught both Math and Computer courses as either a part-time or
sessional professor for the College. From 1980 to the mid-90's he worked in a variety
of "social" programs, as he puts it, gaining experience in dealing with an assortment of
disadvantaged and in some cases learning-disabled individuals. In 1991 he took the
certificate course in Special Education/Special Needs to assist him in those endeavours.
When the last of these social programs came to an end at the College, Mr. Niestroj in
1997 took the Computer Service Technician Training Program to enhance his computer
skills. That led him into a full-time Support Staff position in the College's IT
Department, where Mr. Niestroj stayed until he commenced the present j ob in
September of 2003. The area in which he worked was called User Support, and his
responsibilities entailed dealing with a wide range of problems, from fixing the
computers to assisting the faculty. In that capacity Mr. Niestroj handled the bulk of the
support work for the Office for Students with Disabilities, from maintaining the
hardware to installing and trouble-shooting the software. As noted, the bulk of the work
with the students themselves was done then by Kelly Dan, but Mr. Niestroj himself
provided assistance to students on at least a couple of occasions.
With the new funding in place, the current full-time Learning Strategist/Assistive
Devices Technologist position was able to be posted at the College in July of 2003 (as
set out above). Mr. Niestroj made application for the new position, and asked Human
Resources if there was any further description of it available to assist him with the
interview. The PDF for the j ob was still in the process of being developed, under the
lead of the Counselling and Student Disabilities Office, but HR provided Mr. Niestroj
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with the most recent draft that they had available. That draft was not yet in full PDF
form but set out the following:
The Learning Strategist/Assistive Devices Technologist, in conjunction
with and under the direction of the Special Needs Counsellor, is
responsible for the delivery of appropriate learning strategies and assistive
educational technology training and support, to give students with learning
disabilities the tools they need to enhance learning. The incumbent will
design, deliver and coordinate learning strategy programs and workshops
that are unique to individual student needs including general study skills,
reading and comprehension skills, memory skills, problem-solving, test
taking, time management. The incumbent will train, advise and support
students with idcntified needs in the use of assistive devices. The
incumbent monitors student progress for yearly Ministry reports.
Under the direction of the Special Needs Counsellor,
· reviews student's psycho-educational assessment and identifies student's
strengths and challenges with regards to academic requirement of the program and
courses chosen by the student.
· Provides information and guidance to faculty including techniques to assist their
students with learning disabilities.
· Works with students to train them in effective learning and study strategies in
relation to individual learning styles.
· Supports students in understanding their learning disability and how it affects
their ability to learn.
· Supports students in understanding their needs and strengths and helps them
communicate this information to faculty.
· Responsible for training content-tutors in effective teaching techniques for
students with learning disabilities.
· Provides learning opportunities to students through small group work.
· Researches new and valid methods and strategies and designs new activities,
interventions and learning strategies using initiative and creativity.
· Conducts research into effectiveness of strategies for students with learning
disabilities.
· Consult with, then provides Technical Training and support to students with
learning disabilities in identification and use of beneficial software and hardware.
· Designs and delivers workshops and seminars about the assistive technology that
is available, its use, and benefits to students with learning disabilities.
· Offers demonstrations to students, staff, faculty and the community to inform
them of the availability and role of assistive technologies for L.D. students.
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In consultation with the IT Department;
· idenitifies hardware and software for purchase by the Centre for the benefit of
L.D. students;
· maintains inventory of software and hardware; and
· ensures that software is upgraded to the latest version available;
· communicates with software companies as needed;
· provides on-site troubleshooting with assessment, maintenance, and repair of
equipment; and
· organizes repair as needed by suppliers and manufacturers.
· Offers consultations and advice to College staff and faculty with planning and
creation of computer labs, classrooms, and workstations offering adaptive
technology.
· Conducts assessments of students' technology needs;
· recommends equipment, software and assistive devices;
· provides basic training in the use and application of it.
· Reviews journals to keep up to date on the newest available technology for use by
L.D. students.
· Translates technical manuals to clear and concise language where warranted and
possible.
Mr. Niestroj got the job, and started in the combined position on September 15th.
Within a month the final work on the job's PDF was finished, and Mr. Niestroj read it
and signed it off on October 17th. In that final format the opening preamble was the
same, and the two components of the job were then set out and described, again in terms
which appear to the board to be materially identical to the draft version, as follows:
Approximate %
of Time Annually
1. Learning Strategist 45%
Under the direction and guidance of the Special Needs Counsellor,
reviews the student's file, or parts thereof to understand student's
strengths and challenges with respect to program and college
requirements.
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Works with students to train and tutor them in the effective
application of learning and study strategies for their individual
learning styles. Assists students in understanding their needs and
strengths and helps them communicate this information to faculty.
Assists students in developing and applying effective advocacy
strategies and skills for success in the college.
Trains content tutors in effective techniques for students with
learning disabilities.
Researches new and valid methods and strategies and prepares new
activities, interventions and learning strategies using initiative and
creativity. Conducts research into the effectiveness of strategies for
students with learning disabilities.
May provide information and guidance to faculty including
techniques to assist their students with learning disabilities.
2 Assistive Devices Technologist 45%
Consults with, then provides technical advice and support to
students with learning disabilities in the identification and use of
software and hardware.
Arranges and delivers demonstrations, seminars and workshops.
Offers demonstrations to students, staff, faculty and the community
to inform them of the availability and role of assistive technologies
for L.D. students.
In consultation with the IT Department: identifies hardware and
software for purchase by the Centre for the benefit of L.D. students;
maintains inventory of software and hardware and ensures that
software is upgraded to the latest version available; communicates
with software companies as needed; provides on-site
troubleshooting with assessment, maintenance, and repair of
equipment; and organizes repair as needed by suppliers and
manufacturers. Offers consultation and advice to College staff and
faculty with planning and creation of computer labs, classrooms,
and workstations incorporating adaptive technology.
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Conducts assessments of student's technology needs; recommends
equipment, software, and assistive devices; provides training in the
use and application of it.
Reviews journals to keep up to date on the newest available
technology for use by L.D. students. Translates technical manuals
to clear and concise language where warranted and possible.
3. Administration and Reporting 5%
Monitors, tracks and reports activity as required. Attends and
participates in regular college-wide and departmental meetings.
Provides input to all Ministry reports.
4. Performs other related duties as required by the supervisor 5%
Total 100%
Under "Complexity" and then "Judgment" the full document added:
3. Complexity
The incumbent is required to analyze student academic needs and
understand the academic and support structures in place in order to
determine and develop appropriate interventions and referrals.
Research skills and independent thinking are required to determine
and deliver learning and study skills to students in a timely and
relevant manner. Activities are organized on an individual and
small group basis with student, tutors, professors and other staff as
required.
There are a variety of complex tasks involved, as the incumbent
must work within existing procedures while developing and testing
new procedures, equipment, and software to maximize the delivery
of services to students.
Incumbent is required to work equally with faculty and other
college staff (and their schedules) and must plan his/her activities
accordingly, while keeping student needs and schedules a priority in
daily activity planning.
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To offer advice and provide answers to problems, the incumbent
must be able to comprehend user's needs and ask appropriate
questions to understand problem clearly before proceeding to
action.
4. Judgement
4.1 Describe the degree of independent judgement and problem
solving required to perform the duties of the position.
Independent judgment and problem solving are regular components
in this position as incumbent works on an individual basis with
studcnts of varying ages, culture, gender and disability. Incumbent
is required simultaneously to assess processes with one or more
students while introducing new processes with the same or other
students...
4.2 Provide examples that illustrate how the incumbent identifies
the options available and determines the most appropriate
course of action. Use examples that are clearly the
responsibility of the position and show the level of analysis
and evaluation that is used.
The Learning Strategist needs a facility in order to run workshops
on a regular weekly basis. After reviewing student timetables,
Learning Strategist comes up with a common time and then
discovers that there are no available classrooms. Learning
Strategist must assess other options which may include splitting
group size and using smaller facilities, deferring start of activity to
better match room availability, completely changing activity from
group to individual in order to meet objectives. With this option,
complete schedule may have to be reviewed and rejuggled. This
scenario could occur with respect to availability of equipment, or
other accommodations, such as tutors, or counsellors.
The incumbent must establish priorities with respect to workload
ensuring students needs are met eg. If a student is having difficulty
with an item of software, the incumbent will need to troubleshoot
quickly to enable the student to progress.
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Mr. Niestroj gave evidence, and provided his own description of what the job
entails. In broad terms he described it as follows:
"As the job title implies, there are two parts to the position. One is
advising or coaching the student, telling him about the learning strategies,
demonstrating, and using role-playing strategies; in short, developing a
plan for the individual student to succeed, and then advising and
modifying the plan on a regular, ongoing basis. We usually meet once a
week for that. The second part is to provide training and to advise on the
use of assistive devices; for example, text-to-voice software, Word
Prediction, Mind-mapping. Then there's a small part of administrative
duties, as a third category."
On the percentages, Mr. Niestroj indicates that, after his initial explanation and
demonstration, he tries to have the student become comfortable working with the
assistive software on his or her own, so that more of the time in their face-to-face
meetings can be used to discuss other "learning strategies". Mr. Niestroj testified that it
is difficult to do any exact quantification of the relative time spent on one versus the
other function, because the reality is that in the dual position he moves back and forth
between the two kinds of tools, but that from his experience in the job he would say that
the percentages are closer to 55% Learning Strategist (in which he includes the 5%
"tracking" component), 40% Assistive Devices, and 5% "Other".
The protocol at Lambton has always been that all students who are to have the
assistance of the LS/AD Technologist must come through the Office of Services for
Students with Disabilities, where they can be screened by the Counsellor, with
additional testing if necessary, to determine whether they meet the criteria for "learning
disabled". In the occasional situations where Mr. Niestroj gets a self-referral, or a
referral from a faculty member, he will direct the student to the Counsellor in the
Disabilities Office (Bonnie Dawe). After that, Ms. Dawe will come and introduce the
student to Mr. Niestroj, if she considers follow-up on learning strategies and/or assistive
devices to be appropriate. The Office uses a one-page "Referral Form for Learning
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Strategists" that indicates the diagnosed learning disability, the date of last assessment,
and "Outcome (strategies/computer software recommended)" together with "Goals".
On one of the samples provided, for example, the Counsellor has described the
"Designation" as "LD - Communication", and the "Goals" portion is "to develop
memory & test-taking strategies". It is the job of the LS/ADT then to determine the
learning strategies and/or computer software that might be helpful. The evidence is that
at Lambton the LS/ADT is not given access to the students' files, and Mr. Niestroj has
found it helpful to develop his own, more detailed questionnaire that he uses in his
opening interview with the student. That questionnaire asks the students to describe
their own learning disability and main learning style (auditory, visual, or kinetic), and to
indicate any accommodations that have been prescribed at the College. The student is
also asked to indicate their computer Operating system at home, and their familiarity
with any of the listed (assistive) software programs. The student is asked to identify
specific areas of learning/time management in which they encounter difficulty, and what
"does and doesn't work for me". The student is then asked to sign off the following
commitment at the end of the form:
I, , commit myself to attend sessions with the learning
strategist / assistive devices technologist. Sessions are scheduled on a
regular basis, and I will do my best to attend these sessions. Outside of
scheduled appointments, there is an open door policy enabling me to ask
for extra support whenever the learning strategist is available. If I should
be unable to attend a session, I will inform the learning strategist
beforehand. In case of sickness or unforeseen inability to attend a session,
I will try to either e-mail or phone to let the learning strategist know.
To enhance my learning, I will let the learning strategist know which
strategies work and which do not work so changes can be made to ensure
success.
The student may also volunteer to let Mr. Niestroj see his or her file, in which case Mr.
Niestroj has the benefit of the student's prior assessments and history to assist him in
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deciding on the direction to go. If an outside assessment has to be done, Mr. Niestroj is
often told about the result orally by the Counsellor, or the student may choose to provide
Mr. Niestroj with a copy. All of that is of assistance to Mr. Niestroj in developing an
initial learning plan of tools and strategies for the student. After that, weekly sessions
of an hour or so will take place to receive the student' s feedback on what has been
working, and what hasn't, and to consider what other tools or strategies might be tried.
In that regard, Mr. Niestroj is continuously scanning the intemet, looking for the latest in
"learning strategies" and other tools that have been developed. None of this learning-
skills enhancement, Mr. Niestroj notes as well, occurs in a vacuum; if a student brings to
the school anxiety or feelings of inadequacy, Mr. Niestroj must deal with those, in
particular by setting reasonable goals of self-improvement, one step at a time, so that the
student gains confidence and comfort with each small success. It is important to
develop the students' level of comfort in self-advocacy as well, so that they learn to
speak up and identify the needs that they have around their learning disability. As for
working "under the direction of the Special Needs Counsellor", Mr. Niestroj would say
that he works more on his own. It is, he notes however, important that he and the
Counsellor communicate on the students regularly, to ensure that they are on the same
track in how they are dealing with them. Discussions have always taken place on an
informal basis, therefore, but Mr. Niestroj as of last term has asked that these discussions
be scheduled formally, and they now take place after the regular weekly meeting of all
of the Office staff. In the school year 2003-04, Mr. Niestroj estimates that he would
have seen some 35-40 students on referral from the Counsellor, with only about 20 of
those actually qualifying as "Learning Disabled". Mr. Niestroj notes that empathy is
important, and that he cannot refuse to listen if a student wishes to talk about a personal
problem, including problems in their relationships; where the problem appears
significant, however, he may then refer the student to a general counsellor, or whomever
the student is comfortable talking to. Mr. Niestroj may also act as a liaison with faculty
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or the administration directly, in explaining the special needs of his students, or facilitate
discussion by the students on their own.
The "Definition" in the Academic collective agreement for a "Counsellor" reads:
Counsellor
A Counsellor is responsible for assisting students and potential students to
function effectively as learners and as individuals by helping them
understand, prevent or overcome personal, social or educational problems
that may hinder learning or their ability to cope with everyday living. The
Counsellor's duties include:
c) Developing and maintaining appropriate counselling programs.
d) Interviewing individuals, by appointment, to explore personal or social
difficulties or vocational/educational decision making, including:
- referring students as appropriate to proper professional help;
- facilitating discussion/dialogue between students, faculty and administration;
- participating in pre-admission interviewing and testing as required.
e) Group counselling as a non-instructional activity.
f) Testing and evaluation of individuals to assist them in their personal,
educational/vocational development.
g) Assisting administration, faculty and staff, in a consultative role in identifying
student problems, dealing with student problems, and relationship problems
among students.
h) Providing educational/vocational information to students or directing them to
available sources.
i) Participating in the orientation of new students to the College.
j) Teaching as assigned.
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In addition, the Counsellor may, from time to time, be called upon to
contribute to other areas ancillary to the Counsellor's role, such as student
recruitment and selection, student employment, liaison with community
service programs and agencies, professional development and control of
supplies and equipment.
Mr. Niestroj testified that he performs item (a) by way of developing for his students a plan of
learning strategies and/or assistive devices, and reviewing and revising those plans regularly.
The extent to which he performs the first two of the named items under (b) is set out above.
He indicates that he does not do (c). He does not do testing, but testified that he does have to
evaluate the principal nature of the student's problem, be it visual, auditory, or kinesthetic.
On (e), as noted, Mr. Niestroj does have to make faculty in particular aware of the means
available to assist students - for example, making use of overheads - and may discuss as well
problems with the dynamics of a particular work group. Mr. Niestoj as the LS/ADT of course
provides "educational" information to students, and may as well direct them to available
resources. He has not participated in the orientation of new students, nor yet been asked to
teach any courses.
The College's evidence in the case was given by Jim Elliott, currently Dean of Sports
Administration and Liberal Studies, and at the relevant time responsible for the general
Counselling Office and the Students with Disabilities Office. As with Kathy Bull, a general
counsellor who testified, Mr. Elliott indicated that the Special Needs Counsellor may do a
variety of testing, in both academic and vocational areas. Ms. Dawe is the front-line "gate-
keeper" for all students referred to the Office for Students with Disabilities, and provides the
link between the assessments and the action that will be taken to provide help for a particular
student. In that role she is responsible for all forms of accommodation, including those
pertaining specifically to students diagnosed as Learning Disabled. While there to provide the
full range of counselling service as needed, Ms. Dawe may decide that referral to a specialized
area will be helpful as well, be it for peer tutoring, braille-training, or, most pertinent here, to
the specialist in Learning Strategies and/or Assistive Devices, Mr. Niestroj. Mr. Elliott was
the principal operations person working with HR to develop the PDF for this new job. He
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noted that any split in the two aspects of Mr. Niestroj's job was purely an estimate, given the
integration of the aids by the incumbent, but in the end felt that a 45/45 apportionment seemed
right, given that on the ADT side the incumbent would first have to determine the need and the
best product for it, and then have to teach or demonstrate the product. He agreed with Mr.
Niestroj on the need for empathy in listening to students' emotional or personal problems, but
would then expect him(much as Mr. Niestroj testified he does) to refer or "hand the student
off" to someone who is charged in the main with handling such problems. He also agrees
with Mr. Niestroj that an important element of assisting these special needs students is to
enhance their self-esteem, which can be done through leading them up the scale of "little"
successes. Mr. Elliott from the beginning saw this new position as providing expanded and
more in-depth support for the Counsellors, from a technical and specific learning strategies
point of view. As a split position, however, he acknowledged that it was difficult to decide
where it best fit, given the obvious "Technologist" component of the job, but in the end it was
decided to "push it into the SSO classification".
There is no question, as Mr. Leeb submits, that at least the "learning strategies"
portion of this new j ob is work that, previously, had to be done by the Counsellors.
Indeed, an orientation course for new students highlighting many of these same skills
has been taught in the past by Counsellors. The fact that Counsellors formerly were
required to do it, however, does not necessarily mean that it was the "counselling"
aspect of their job that has now been delegated (for example, it could be purely
administrative functions for which the Counsellors subsequently are given resource-
support to make delegation possible). In this case, however, the board finds that there
are unquestionably elements of "counselling" that go into the proper performance of this
job, not the least of which is in dealing with the feelings of inadequacy and low self-
esteem that may so often accompany this particular form of special need, and in
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promoting self-advocacy (as the PDF, particularly in its final form, clearly recognizes).
Placement in one unit or the other, as the cases have repeatedly noted however, requires
identification of the "core" function of the job; or, in other words, may well come down
to a question of proportionality. See, for example, Fanshawe College and Ontario
Public Service Employees Union (April 24, 1987) unreported (Brent); Fanshawe College
and Ontario Public Service Employees Union (December 23, 1988) unreported
(Samuels); Fanshawe College and Ontario Public Service Employees Union (August 20,
1996) unreported (Burkett); Fanshawe College and Ontario Public Service Employees
Union (April 21, 1999) unreported (Devlin); George Brown College and Ontario Public
Service Employees Union (December 4, 2000) unreported (Shime); Fanshawe College
and Ontario Public Service Employees Union (April 18, 2002) unreported (Burkett);
George Brown College and Ontario Public Service Employees Union (October 17,
1990) unreported (Carter); George Brown College and Ontario Public Service
Employees Union (May 12, I993) unreported (Mitchnick); Niagara College and Ontario
Public Service Employees Union (March 26, 1998) unreported (Swan). In the Niagara
case, in particular, Arbitrator Swan wrote, on his concluding page:
The distinction drawn in the arbitral jurisprudence is based not on
the mere fact of the assignment of some academic bargaining unit duties to
someone who would otherwise be in the support staff bargaining unit, but on
the quantity of that assignment. In both Re Georgian College and Ontario
Public Service Employees Union, Union Grievance 89B533, October 17, 1990
(Carter) and Re Mohawk College of Applied Arts and Technology and Ontario
Public Service Employees Union, Sweeny Grievances 96C782 and 96C783,
May 15, 1997 (Howe), the awards collect together and approve the cases
which have applied a core function test to the question of bargaining unit
jurisdiction, and apply that test to positions remarkably like the one now
before us for consideration, only to conclude that someone performing duties
similar to the present Co-op Consultant is properly placed, on the basis of the
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core functions of marketing, public relations and administrative tasks, in the
support staff bargaining unit.
We are of the view, based on all of the evidence before us, that the
same result is appropriate in the present case. The core function of the Co-op
Consultant position is clearly within the support staff unit, and the totality of
academic functions assigned to the position are not sufficient to overweigh
that determination.
Or as Arbitrator Carter put it, in the final two pages of Georgian College:
Counsel for the union argued that this evidence showed that Co-
operative Education Consultants pertbrmed counselling and teaching duties
to such an extent as to bring them within the academic bargaining unit.
These responsibilities, according to counsel, were analogous to the
responsibilities performed by David Duncan (a member of the academic
bargaining unit) and justified the inclusion of Co-operative Education
Consultants within the academic bargaining unit. Furthermore, the
employer had recognized the significance of the counselling functions of
the position by awarding seniority credit for past service in the position to
one employee entering the academic bargaining unit as a Teaching Master.
In particular union counsel emphasized the counselling responsibilities of
the Co-operative Education Consultant and the fact that these
responsibilities were directly related to the delivery of an academic
program.
On the evidence presented to us we are prepared to agree that there
is an important counselling and teaching component to the job. On the
other hand, we are not convinced that this component is sufficiently
substantial so as to bring the position within the academic bargaining unit.
As we see the evidence, the core function of this Co-operative Education
Consultant is to locate suitable job openings in the workplace and to
maintain contact with employers during the period of the work experience.
Student counselling, while important, is only an ancillary component of the
position and not sufficiently substantial so as to bring this Co-operative
Education Consultant within the bargaining unit.
The distinction we draw in this case is quantitative rather than
qualitative. We are not saying that the type of counselling and teaching
carried out by the Co-operative Education Consultant is not academic in
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nature, but only that there is absent a sufficiently substantial component of
these responsibilities to warrant inclusion of the position within the
academic bargaining unit. It is this factor of quantity that distinguishes the
responsibilities of the Co-operative Education Consultant from those
performed by David Duncan as a member of the bargaining unit. As we
see the evidence, a significantly greater portion of Duncan's duties relate to
teaching and counselling than is the case with the Co-operative Education
Consultants. Moreover, the fact that some seniority credit was on one
occasion given for the counselling component of the position does not
mean that this responsibility was the predominant aspect of the job, but
only that the employer recognized that counselling formed a part of the job.
The board can agree with Mr. Leeb that "you could not have a more important academic
support function than providing these kinds of tools", certainly for this particular group
of specially-disadvantaged students. As the PDF recognizes, there is also a distinct
element of"initiative and creativity" in the job, together with a constant need for
independent thinking and judgment. The Colleges' Support unit, it must be recalled
however, is not simply an administrative and/or clerical one, and is not without other
examples of highly-skilled individuals contributing in a key way to students' success at
the College. The funding for enhanced Learning Disabled initiatives has allowed for
the specialized area of"leaming strategies" and assistive (computerized) devices to be
spun off to another resource person, but at the smaller Lambton College, the board is
satisfied on the evidence that the Special Needs Counsellor continues on an ongoing and
at least weekly basis to continue to provide over-arching supervision of each student's
"treatment", as both versions of the PDF specifically indicate. The fact that the
Learning Strategist/Assistive Devices Technologist at Lambton is not given access to the
confidential files pertaining to his students, unless made available by the student
directly, is a good indication to the board of the parameters that exist at this particular
College on the extent of the delegation.
Even on Mr. Niestroj's own estimation of the percentage split on his two roles,
there is no reason to add the "tracking" function simply to the LS component, and the
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split remains close to even (for reasons which, as Mr. Niestroj explained, as a practical
matter for this integrated job makes sense). And Mr. Niestroj did sign off the PDF
split, after having been in the job for at least a few weeks, at 45 and 45%. But again, all
of that is only an estimate. The key point is that at best the "counselling" aspect is a
small though significant portion of the "Learning Strategist" job itself here (as opposed
to the clearly support or "technical" nature of the Technologist position), and at this
College, the two positions are combined. That, in the board's considered view, reduces
the "counselling" element of the dual "Learning Strategist/Assistive Devices
Technologist" position to the point where it can, in the words of the case law, be said to
be "vestigial", rather than core, and thus supports the determination by the College in
this case that the position falls more properly in the "Support" unit than the "Academic"
unit.
The grievance accordingly must be dismissed.
Dated at Toronto this 20th day of June, 2005.
M. G. Mitchnick- Chair
I Dissent "Ron Davidson"
Ron Davidson - OPSEU Nominee
I Concur "Robert Gallivan"
Robert Gallivan - College Nominee