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HomeMy WebLinkAboutUnion 99-04-21'~ IN THE MA'i-I'ER OF AN ARBITRATION BETVVEEN: ' FANSHAWE COLLEGE - and - ONTARIO PUBLIC SERVICES EMPLOYEES UNION UNION POLICY GRIEVANCES - BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR RON HUBERT COLLEGE NOMINEE PAULINE SEVILLE UNION NOMINEE ROBERT J. ATKINSON, FOR THE COLLEGE RICHARD A. BLAIR, FOR THE UNION c OPSEU NOS.: 96A141 97H059 HEARING DATES: MAY 13, 1998 FEBRUARY 9, 1999 FEBRUARY 10, 1999 In the grievances which were filed by the Union, it is alleged that certain Technologists B in the Industrial Maintenance Mechanic ("IMM") and General Machinist ("GM") programs at the St. Thomas campus are assigned teaching duties to such an extent that this work properly falls under the academic, rather than the support staff, collective agreement. The Union maintains that when assigned to perform this work, the Technologists B ought to be classified and paid as Instructors. The IMM program is a 48 week pre-apprenticeship program for which there are currently two intakes of students, one in the spring and the other in the fall. There are approximately 20 students in each intake. The program is designed to provide students with entry level skills required of a general maintenance mechanic and involves a series of modules consisting of orientation, machine repair, fluid mechanics, machining, welding, computer literacy and mathematics. The evidence indicates that apart from computer literacy and mathematics, which are not relevant to the matters in issue in this case, each module is comprised of both theoretical and practical components, which vary with the particular module. By way of example, approximately 75% of the machine repair module consists of theory whereas theory accounts for only 20% of the machining module. The evidence indicates that students in the IMM program spend some portion of their time in the classroom and some time in the machine shop. The time spent in the classroom involves theory which is delivered using a lecture format and this aspect of each module is the exclusive responsibility of Professors. The time spent in the machine shop involves demonstrations of the use of equipment and responding to questions by students and this work is carried out by both Professors and a Technologist B. It is the performance of these latter duties by the Technologist B when a Professor is not in the shop which is in issue in this case. Prior to the spring of 1996, there were three intakes of students each year in the IMM program. Students in each intake spent 20 hours each week with Professors which included time in both the classroom and machine shop. Students were also scheduled for three hours each week in the machine shop with the Technologist. The evidence indicates that time spent with the Technologist was generally scheduled during the last hour each day and that a considerable portion of this time involved cleanup. Following the retirement of one of the Professors assigned to the IMM program in the spring of 1996, there was a reduction in the number of student intakes from three to two. Since that time, students have been scheduled 3 with Professors for 16 hours each week, the bulk of this time being spent with Ben Roberts, who is now the principal Professor assigned to the program. Students also spend seven hours each week with the Technologist, Dave Elson. However, for a period of 14 weeks, Terry Sheridan, another Professor, is also assigned to teach in the IMM program and when he and Mr. Roberts teach together (as opposed to periods when Mr. Sheridan replaces Mr. Roberts during vacation), students spend somewhat less time with Mr. Elson. In any event, taking into account both intakes, Mr. Roberts estimated that the time Mr. Elson spends with students accounts for approximately 16% of the program. In this regard, Mr. Elson testified that while there is some variation in the number of hours, on average, he spends eight to ten hours each week with students in the machine shop. As indicated previously, the theoretical component of each module is delivered by Professors in a classroom setting and in some cases, the Professor may go into the machine shop to demonstrate the operation of particular equipment. Mr. Roberts testified, however, that when he is teaching both intakes of the program, he is generally with students in one intake for three hours each day, three days a week, while students in the other intake are in the machine shop with Mr. Elson, following which the intakes are reversed. Nevertheless, Mr. Roberts testified that there are aspects of the program, such as electronics, which 4 do not involve time in the machine shop and that he teaches both the theoretical and practical components of the welding module. Mr. Roberts also testified that the majority of students entering the program have no knowledge of the tools and equipment used and that questions most often arise in the machine shop when they first have the opportunity to see the practical application of the theory taught in the classroom. Moreover, both Mr. Roberts and Mr. Sheridan testified that Mr. Elson imparts knowledge to students in the same manner as they do when they are in the shop. The evidence also indicates that in responding to student questions, it is often difficult to separate the theory from its practical application and that both components are essential to successful completion of the program. Finally, in addition to the duties referred to, Professors assigned to the IMM program are responsible for curriculum development; the selection of appropriate course materials; the development of assignments and tests; and the evaluation of students. As to the duties performed by Mr. Elson, his position description form ("PDF") contains the following: ,Approximate % of Time Annually 1. Plans, directs and organizes the systems of machine 10% and tool maintenance, purchasing of equipment and supplies, shop safety and housekeeping and tool crib security. Maintains records of machine maintenance and repair. 2. Performs required maintenance, inventory control, 20% and assists students in projects, and other assigned duties. 3. Prepare material per instructor's direction when 10% time permits. 4. Demonstrates use of equipment operations to 45% students at request of instructors on a scheduled basis and assists students with projects and problems on all equipment. 5. Responsible to the Principal for providing the 5% expertise required to plan for new equipment purchases. This requires a regular liaison with suppliers of equipment software etc. and an ongoing updating of knowledge in these areas. Advises Principal on long range planning of equipment needs for programs, both for IMM labs. 6. Provides an important link to co-ordinate shop use 10% amongst the various faculty members using the IMM shops. Acts as liaison between a.m., afternoon and evening shift instructors all using the shop and equipment, communicates and supervise re systems and procedures. Mr. Elson acknowledged that the PDF accurately sets out his job duties and that, among other matters, he is responsible for maintaining tools and equipment in the machine shop, ordering equipment and supplies and co- ordinating use of the shop by faculty members. As to his responsibilities in relation to students, Mr. Elson testified he prepares materials for students in accordance with the direction of the Professor. When he is scheduled with students in the machine shop, he also takes attendance, provides students with assignments developed by the Professor and ensures that they have the necessary tools. As well, he demonstrates the appropriate use of tools and equipment and responds to student questions. He testified that, in this respect, his duties are similar to those carried out by Mr. Roberts and Mr. Sheridan when they are in the machine shop. Mr. Elson also testified that for the most part, he demonstrates techniques in respect of which students have received theoretical instruction in the classroom. As well, he acknowledged that he is most frequently called upon to answer questions and conduct demonstrations during the initial period of each intake when students are not familiar with the tools and equipment used in the program. Moreover, Mr. Elson testified that he answers questions relating to both the theoretical and practical components of the various modules as the two cannot be easily separated. On occasion, in response to a question, he may also refer a student to the text book or other course materials. As well, Mr. Elson ? testified that he has no role in evaluating students although he is required to record students' satisfactory completion of tasks assigned by a Professor. Mr. Elson acknowledged that in mid-April, 1996, he received a copy of a memorandum from Tom Pickard, the Principal of the St. Thomas campus, outlining his duties and those of Professors assigned to the IMM program. The relevant portion of this memorandum as follows: MEMORANDUM TO: Terry Sheridan, Ben Roberts cc Dave Elson, Malcolm Thomas FROM Tom N. Pickard DATE: April 12, 1996 SUBJECT: IMM restructuring i) we will move to the model of 16 teaching hours/section plus math and computers. In addition you will have technician support to oversee some aspects of the practical and study assignments. v) question sheets will be prepared by the teacher for each module. The teacher will provide the appropriate theory and demonstrations and distribute research sheets to the students. The technician will supervise the research assignment to be done in groups of 3 or 4 students. No new theory will be provided during this time. The technician will respond to questions asked by the students and will provide supplementary demonstrations as required. The technician will not prepare curriculum, deliver new material or take primary responsibility for student evaluation. The technician will be available to provide assistance to the professor in the evaluation process. The $ professor will review the previous days material with the students on a regular basis. vi) the technician may also supervise some lab situations. In all cases the professor will have reviewed the material by lecture or/and demonstration prior to turning the lab over to the technician. The technician may assist the professor in evaluation by recording observations of work performed by the students and submit this information to the professor. The technician will ensure that proper safety procedures are followed by the students during his or her lab supervisor's time. Although Mr. Elson testified that he has attempted to comply with the instructions contained in the memorandum, he explained that once he advised students that he would not respond to questions on material which had not been covered in a lecture, they would indicate that the particular lecture had been delivered. Some time later, Mr. Elson would discover that he had been misinformed. The GM program is also a 48 week program for which there is a continuous intake of students at various points throughout the year. The program consists of three sections, each of which is 16 weeks. The program is designed to provide students with basic machine shop skills and consists of modules on computer literacy and mathematics, which are also not in issue, and machine shop. As in the IMM program, the machine shop module consists of both theoretical and practical components which are delivered in the classroom and 9 the machine shop. Time spent in the classroom involves theory and this instruction is the exclusive responsibility of a Professor. Time spent in the shop involves demonstrations and responding to questions and this work is carried out by both a Professor and a Technologist B. The principal Professor assigned to the GM program is John Zarzeczny, who was transferred from the College's London campus in the spring of 1996. Apart from some initial period during which Mr. Zarzeczny's teaching contact hours were reduced to allow for additional preparation time, he teaches theory eight hours each week and spends 11 hours with students in the machine shop where he conducts demonstrations and responds to questions. During the last hour that students are in the machine shop each day, they are scheduled with the Technologist, Terry Vinet. The evidence indicates that 20 to 30 minutes of this final hour generally involves cleanup. Mr. Vinet estimated that on average, he spends five hours a week with students in the machine shop when Mr. Zarzeczny is not present. From time to time, Mr. Vinet is replaced by Norm Carsons, who is classified as a Technologist and has also worked on a part-time basis as a Professor. Mr. Carsons estimated that he spends approximately six hours each week with students in the machine shop. At various times, Mr. Vinet and Mr. Carsons have 10 also replaced Mr. Zarzeczny and on these occasions, they have delivered lectures in the classroom and worked with students in the machine shop. During such assignments, they have been temporarily classified and paid as Professors. In the GM program, as in the IMM program, Mr. Zarzeczny is responsible for curriculum development; the formulation of tests and assignments; and the evaluation of students. As to the theoretical component of the machine shop module, Mr. Zarzeczny testified that students who successfully complete assigned tests may not be required to attend classes during the entire 48 weeks of the program and that other students may attend particular lectures more than once. Mr. Zarzeczny also testified that questions most frequently arise in the machine shop and that more questions and demonstrations are required during the initial period of the module when students are not familiar with the machinery. He also testified that there is no difference between the demonstrations which he conducts for students and those conducted by either Mr. Vinet or Mr. Carsons. Moreover, Mr. Zarzeczny testified that in responding to student questions, it is difficult to draw a distinct line between the theoretical and practical components of the module and that both are essential to successful completion of the program. As to the duties performed by Mr. Vinet, his PDF provides as follows: Approximate % Time Annually 1. Plans, directs and organizes the systems of machine 10% and tool maintenance, purchasing of equipment and supplies, shop safety, house-keeping and tool crib security. Maintain records of machine maintenance and repair. 2. Performs required maintenance, inventory control 20% and assists students in projects and other assigned duties. 3. Prepares material per instructor's direction when time 10% permits. 4. Has special responsibility for planning and implementing 20% computerization of student records and for demonstrations of processes used in Computerized Numeric Control equipment, machine shop computers and use of computer aided design software. 5. Demonstrates use of machine operations to students at 20% request of instructors on an unscheduled basis and assists students with projects and problems on all machines. Works with instructors to co-ordinate scheduling of machines and students to ensure appropriate access to machines and to make sure students progress through their course modules on schedule only insofar as the shop practicum is concerned. 6. Is responsible to the Principal for providing the expertise 5% required to plan for new equipment purchases. This requires a regular liaison with suppliers of equipment software, etc., and an ongoing updating of knowledge in these areas. Checks the preparation of Purchase Requisitions by the Technician. Advises Principal on long range planning of equipment needs for programs, both for Machine Shop as well as for programs such as WITT, OBS, etc., which operate from separate shops. ]2 7. Provides an important link to co-ordinate shop use amongst 15% the various faculty members using the Machine Shop. Acts as a liaison between a.m., afternoon and evening shift instructors all using the shop and equipment, communicates and supervises re systems and procedures. Mr. Vinet acknowledged that the PDF accurately sets out his job duties and that, among other matters, he is responsible for the maintenance of equipment, the purchase of equipment and supplies and inventory control. He also prepares materials for students, conducts demonstrations and responds to questions. Although Mr. Vinet testified that he is not generally involved in conducting demonstrations or responding to questions when Mr. Zarzeczny is in the machine shop with students, he may do so at his request or at the request of a student. Mr. Vinet also conducts demonstrations and responds to questions during the final hour that students spend in the machine shop each day when Mr. Zarzeczny is not present. Mr. Vinet testified that he carries out these duties in the same manner as he has on occasions when temporarily classified as a Professor. He also testified that he responds to questions relating to both theoretical and practical components of the machine shop module and that it is difficult to separate the two. Moreover, although Mr. Vinet acknowledged that it is Mr. Zarzeczny's responsibility to evaluate students in the program, he testified he may provide input regarding their progress. He may also advise students if their ]3 work on a particular project is acceptable and is required to ensure that they are capable of operating the machinery safely. Mr. Vinet acknowledged that in June, 1996, he received a memorandum from Mr. Pickard regarding his duties in the GM program. The relevant portion of this memorandum is as follows: MEMORANDUM TO: Malcolm, John Z., Terry FROM: Tom N. Pickard DATE: June 14, 1996 SUBJECT; 48-week General Machinist pre- apprenticeship program I would also like to reinforce the role of Terry Vinet as technician in this program. Malcolm and John will be responsible for the delivery of all theory to students and will be responsible for the delivery of new material in the machine shop itself. Malcolm and John will be responsible for the preparation of curriculum, and will provide the delivery of appropriate theory and demonstrations. Terry's role is to supervise some lab situations. In all cases the professor will have reviewed the material by lecture and/or demonstration prior to turning the lab over to Terry. Terry may assist the professor in evaluation by recording observations that were performed by students and submitting this information to the professor. He will ensure that proper safety procedures are followed by the students during his time in the lab. Terry will respond to questions by students and will provide supplementary demonstrations as required. He will not prepare curriculum, deliver new material, or take primary responsibility for student evaluation. He may be able to provide assistance to the professor in an evaluation process at the ]4 professor's request. In all cases the professor will review this work prior to assigning the final grade to the student. Although Mr. Vinet testified that he has complied with the memorandum to the best of his ability, Mr. Zarzeczny testified that the delineation of duties set out in the memorandum is impractical in view of the continuous intake of students· In particular, he explained that as students are frequently at different levels, it may be necessary for Mr. Vinet to conduct an initial demonstration as it is not always feasible for students to wait until he has time to do so. He also testified this demonstration may involve a matter as simple as turning on a machine. Although he also testified that he advised Mr. Pickard that the instructions set out in the memorandum of June 14, 1996 were not being followed, he could not recall precisely what he said other than that Mr· Vinet was very helpful in delivering the machine shop portion of the program. Mr. Carsons, who replaces Mr. Vinet from time to time as Technologist in the GM program, testified that, among other matters, he is responsible for the maintenance and repair of equipment and for conducting demonstrations and responding to student questions. He testified that in this latter respect, he performs the same duties which he has performed when temporarily classified as a Professor. He also testified that the questions asked by students relate to both the theoretical and practical components of the machine shop module. Moreover, he explained fewer demonstrations are conducted during the final hour that students spend in the machine shop as they do not generally begin new projects during this time. Apart from the final hour, Mr. Carsons testified that he usually performs other duties when Mr. Zarzeczny is in the machine shop with students although he may conduct demonstrations or respond to questions at Mr. Zarzeczny's request. Although Mr. Carsons also acknowledged that as a Technologist, he is not responsible for the evaluation of students in the GM program, he testified that he must decide whether a student can continue with a particular project or must perform another operation. Finally, Mr. Carsons testified that at some point, he became aware of the content of the memorandum from Mr. Pickard dated June 16, 1996 which indicated, among other matters, that he was to respond to questions, conduct supplementary demonstrations and assist in the evaluation of students at Mr. Zarzeczny's request. The issue to be decided is whether during periods spent in the machine shop with students in the absence of a Professor, Messrs. Elson, Vinet and Carsons ought to be classified as Instructors under the academic collective agreement. The class definition of Instructor under this agreement provides as follows: CLASS DEFINITION INSTRUCTOR The Instructor classification applies to those teaching positions where the duties and responsibilities of the incumbent are limited to that portion of the total spectrum of academic activities related to the provision of instruction to assigned groups of students through prepared courses of instruction and according to prescribed instructional formats; and limited to instruction directed to the acquisition of a manipulative skill or technique; and under the direction of a Professor. Notwithstanding such prescription, the instructor is responsible for and has the freedom to provide a learning environment which makes effective use of the resources provided or identified, work experience, field trips, etc., and to select suitable learning materials from those provided or identified to facilitate the attainment by the students of the educational objectives of the assigned courses. The Instructor's duties and responsibilities include: - ensuring student awareness of course objectives, instructional approach, and evaluation systems; - carrying out regularly scheduled instruction according to the format prescribed for the course, including as appropriate, classroom, laboratory, shop, field, seminar, computer- assisted, individualized learning, and other instructional techniques; - 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 ]7 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 relevant portions of the guide chart for Technologist B, which is the subject of agreement between the parties to the support staff collective agreement, are as follows: EVALUATION CRITERIA TECHNOLOGIST B SUMMARY OF Incumbents provide technical expertise of a RESPONSIBILITY specialized nature to faculties, administrative areas and students, using independent judgement to determine services and methods required to meet user needs. TYPICAL DUTIES - Designs and/or develops equipment, systems, facilities, materials, etc. to meet user output requirements. ~ Plans, organizes and conducts experiments and demonstrations explaining correct procedures and theoretical principles involved. - Evaluates equipment and other resources and makes recommendations prior to purchase. - Controls supply inventories and budgets. - May assist in student evaluations in relation to learning activities in which the Technologist B takes part. ]8 As is evident from the class definition of Instructor and the guide chart for Technologist B, both classifications involve interaction with students. In this regard, the guide chart for Technologist B provides that an incumbent plans, organizes and conducts experiments and demonstrations explaining correct procedures and theoretical principles involved. A Technologist B may also assist in student evaluations in relation to learning activities in which he or she takes part. In determining the Union's claim in this case, the Board notes that there is considerable jurisprudence between these parties, particularly at this College, dealing with similar claims advanced by the Union. In fact, one of the prior awards concerned Mr. Vinet, who is the subject of one of the grievances in this case: see Fanshawe College and Ontado Public Service Employees' Union May 9, 1990 (Brent (unreported)). In that award, the majority of the Board characterized the issue as follows: It would appear that we are caught in the middle of two opposing ideas concerning the appropriate role of support staff personnel in the technical shops. If the Union's argument is taken to its extreme, then it may be said that any time any member of the support staff bargaining unit interacted with a student in the shops that person would have to be regarded as being in the academic bargaining unit. On the other hand, if the College's argument is taken to its extreme, then it may be that members of the support staff could man technical shop to the exclusion of academic bargaining unit personnel provided that one could argue that their ultimate responsibility was in relation to the machinery in the shop and they did no scheduled teaching. In the earlier award involving Mr. Vinet which also concerned his work in the machine shop, Mr. Vinet was initially classified as a Technician B and later, a Technologist B. In rejecting the Union's submission that Mr. Vinet was properly classified as a Teaching Master, now known as a Professor, the majority of the Board applied a core function test as follows: There is no doubt that the incumbent does spend a great deal of his time "floating" around the shop and interacting with students about their work in the same manner that a Teaching Master would help any student having trouble. There is also no doubt that the way that technical teaching is done in this particular shop makes it difficult to differentiate between those whose objects in interacting with the students are to ensure that the students progress through the curriculum and that their knowledge of a subject increases, and those whose objects in interacting with students are to ensure that the equipment they are responsible for is used properly. However, we must still differentiate between those people based on the core functions or responsibilities of their jobs. We do not consider that the core function of the Technologist B job here can be said to be teaching. All of the evidence before us indicates that the core function of that job involves overseeing the use and acquisition of the equipment for the shop, rather than trying to ensure that the students who take the course learn something. The core function test was also applied in an earlier award of another Board chaired by Arbitrator Brent which concerned John Conley, a Technologist B in the Electronic Servicing Techniques program: see Fanshawe College and Ontario Public Service Employees Union November 28, 1989 (unreported). In 20 that case, the Union also claimed that Mr. Conley was properly classified as a Teaching Master and in denying that claim, the majority of the Board commented as follows: Because of the nature of the course, Mr. Conley and the teaching master can often be doing the same sorts of things when they interact with students. For example, they both are available to answer student questions and they both do group discussions. What Mr. Conley is never involved in is the teaching of theory. He is not responsible for the formal evaluation of the progress of students to determine whether their mastery of the course content is sufficient to enable them to receive their certificates. His instructional activities are apparently confined to demonstration and to dealing with other aspects related to the practical application of the theory taught. It is not the core function of his job to be responsible for imparting the course content to students. It is the core function of his job to administer all aspects of the lab, to demonstrate to students and to instruct them in the practical application of the matters covered in the course content. Those aspects of the job which deal with instructing students have been recognized by the parties as being the sort which are appropriate to a Technologist B. It therefore cannot be said that the core function of this job is the same as the core function of the teaching master job. The awards referred to were also considered in a subsequent award by a Board chaired by Arbitrator Burkett in Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union August 20, 1996 (unreported). That award involved a claim that a Technician B who conducted demonstrations and answered questions of students in the Hotel and Restaurant Management programs was properly classified as an Instructor under the academic collective agreement for the pedod of time she performed these duties. After reviewing the earlier awards, the majority of the Board concluded that "the core function test, as applied by Arbitrator Brent, is the best measure for deciding whether an employee is more appropriately in the academic unit or more appropriately in the support unit when, as here, there are overlapping duties and responsibilities". Applying that test to the evidence before the Board, it was held that the employee in question was properly classified as a Technician B. Nevertheless, the Union contended that the earlier awards of the Boards chaired by Arbitrator Brent are distinguishable as in those cases, a Professor was present when the Technician or Technologist conducted demonstrations or answered questions posed by students in the machine shop or lab. The Union also noted that in the award of the Board chaired by Arbitrator Burkett, the Technician was involved in answering up to six questions a day and conducting only one demonstration a week in the absence of the Professor. Moreover, the Union submitted that employees of the College may be members of both the academic and support staff bargaining units and in this regard, relied on The Ontario Council of Regents for Colleges of Applied Arts and Technology, Fanshawe College and Ontario Public Service Employees Union March 27, 1984 (Delisle (unreported)). In that case, the employee in question worked for some period as an Audio Visual Technician under the support staff collective agreement and continued to perform this work after being offered a partial load teaching position. Although the Union maintained that the employee could not be a member of both the academic and support staff bargaining units, the Board found that there was no such prohibition. Nevertheless, it is apparent that in that case, the employee was performing the duties of two distinct positions. Accordingly, the award relied on by the Union did not involve the bifurcation of a position and reclassification of an employee during the period that he or she performs duties which overlap with those of a higher classification, which is the essence of the claim in this case. In the result, it is the Board's view that in accordance with the jurisprudence between these parties, claims for reclassification such as that advanced by the Union ought to be determined based on a core function test. In this case, the PDF's for Messrs. Elson and Vinet provide that they have certain responsibilities in relation to tools and equipment in the machine shop. Among other matters, they are responsible for maintenance of equipment, the purchase of equipment and supplies, inventory control and co-ordinating use of the machine shop among faculty members. They are also required to prepare material for students and ensure that students operate equipment safely. Moreover, Messrs. Elson and Vinet conduct demonstrations and answer questions posed by students relating to both the theoretical and practical components of various modules in the IMM and GM programs. They also provide some input regarding the progress of students in the program. In the absence of Mr. Vinet, similar duties are performed by Mr. Carsons. While Mr. Elson's PDF indicates that approximately 45% of his time is devoted to demonstrating equipment operations and assisting students with projects and problems on equipment, he testified that he actually spends somewhat less time on these duties. In this regard, he estimated that on average, he spends eight to ten hours each week with students in the machine shop when Mr. Roberts is not present. Mr. Vinet estimated that he spends approximately five hours weekly with students in the machine shop in the absence of Mr. Zarzeczny whereas Mr. Carsons estimated that he spends approximately six hours with students on a weekly basis. The evidence indicates that some portion of the time that Mr. Vinet and Mr. Carsons spend with students is devoted to cleanup. To the extent that Messrs. Elson, Vinet and Carsons conduct demonstrations and respond to questions posed by students in the machine shop, the evidence indicates that they perform duties similar to those carried out by Professors. Nevertheless, they are not involved in teaching theory, nor do they perform other duties of Professors, such as those relating to curriculum 24 development and the formal evaluation of students, and, in fact, it has not been suggested that Messrs. Elson, Vinet and Carsons be reclassified as Professors. Instead, the Union submits that for the period that they interact with students in the machine shop in the absence of a Professor, they ought to be classified as Instructors. Although there is some overlap between the duties of an Instructor and those of a Technologist B, as indicated previously, the duties relied on by the Union to support its claim for reclassification are specifically referred to in the guide chart for Technologist B. Moreover, Messrs. Vinet and Carsons perform these duties for five to six hours a week whereas Mr. Elson performs these duties for eight to ten hours a week. For the remainder of the time, therefore, these employees perform other duties relating to equipment and supplies and use of the machine shop, which do not involve interaction with students. Based on the evidence, therefore, it is apparent that the duties performed by Messrs. Elson, Vinet and Carsons fit within the classification of Technologist B. Moreover, although some of these duties involve interaction with students, Messrs. Elson, Vinet and Carsons do not carry out a variety of duties of the Instructor classification. Among other matters, they are not responsible for selecting appropriate course materials to facilitate the attainment of educational objectives; ensuring student awareness of course objectives; delivering instruction according 25 to a prescribed curriculum or assuming responsibility for the overall assessment of students. In the result, applying a core function test, we are compelled to conclude that Messrs. Elson, Vinet and Carsons are properly classified as Technologist B. The conclusion we have reached is also consistent with the approach adopted in earlier awards between these parties. In this regard, although the Union maintained that the awards of the Boards chaired by Arbitrator Brent are distinguishable as in those cases, the Technician or Technologist provided instruction when the Professor was present in the machine shop or lab, in each case the Board focused squarely on the duties performed. Based upon a core function analysis, it was determined that the individuals in question were properly classified under the support staff collective agreement. Having found that Messrs. Elson, Vinet and Carsons are also properly classified, the grievances must be dismissed. DATED AT TORONTO, this 21st day of April, 1999. Chair College Nominee See Dissent Attached Union Nominee 1 Fanshawe College and Ontario Public Service Employees Union Union Policy Grievances - OPSEU File Nos. 96A141 and 97H059 Pauline R. Seville - Dissent I have read the Majority Award and with respect, I find I must dissent. While I agree with the facts as outlined by the Majority in its decision, I diSagree with the interpretation given to those facts in dismissing the grievances. The Majority has decided the grievances based on a core function analysis, which in my view is not the appropriate test to apply because the Union was not seeking a finding that the employees in question were performing in a full-time teaching capacity. Utilizing a core function analysis would be relevant if the Union was asserting that the support staff employees in question were teaching in a full-t/me capacity. That is not what the Union is seeking in this case, and for these reasons, I believe it is inappropriate to apply a core function analysis to the facts of this case. The academic collective agreement makes provision for partial-load employees as follows: Article 26 Partial-Load Employees 26.01 A partial-load employee is defined as a teacher who teaches more than six and up to and including 12 hours per week on a regular basis. 2 Engag/ng in a core function analysis does not address the question of whether the Technolo~sts in question, Dave Elson, Terry V/net and Norm Carsons spend only a portion of their time engaged in teaching, while the remainder of their time is spent on support staff duties. The grievances, filed by the Union clearly acknowledge these employees perform other appropriately assigned support staff duties, and the grievance dated April 12, 1996 contains the following statement: The Union wants to be perfectly clear to the College that we are only grieving the teaching work performed by this individual, as it is work that rightfully belongs to our bargaining unit. We recognize that Dave Elson has other appropriately assigned support staff duties. Therefore, we are not asserting that Dave Elson should be a full-time faculty member. Similarly, the grievance dated March 24, 1997 contains the following statemem: The Union wants to be perfectly clear to the College that we are only griev/ng the teaching work performed by these individuals, as it is work that rightfully belongs to our bargaining trait. We recognize that Norm Carsons and Terry V/net may have other appropriately assigned support staff duties. Therefore, we are not asserting that either should be a full-time faculty member, only that when this teaching work is assigned, it must be assigned as Teaching Contact Hours. 3 As noted in the majority award there is some jurisprudence between these parties, dealing w/th similar claims advanced by the Union, but while they are similar, they are not the same. In the prior case involving Mr. Vinet, see Fanshawe College and Ontario Public Service Employees ,Union May 9, 1990 (Brent (unreported)), the Union was seeking a declaration that Mr. Vinet was a full-time Teaching Master (now known as a Professor), and as a result it was appropriate to apply a core function test. Again, in Fanshawe College and Ontario Public Service Employees Union, November 28, 1989 (Brent (unreported), the Union was seeking a finding that John Conley, a Technologist B in the Electronic Servicing Techniques program, was a full-time Teaching Master (now known as a Professor), and as a result it was appropriate to apply a core function test. In Fanshawe College of Applied Arts and Technology and Ontario Public Service Employees Union August 20, 1996 (Burkett (unreported)), the Technician was involved in answering up to six questions a day and conducting only one demonstration a week in the absence of the Professor. In my view the case before us involves far more extensive involvement with students than was in evidence in this earlier case. The case before us is also distinguishable on the evidence we heard about the effect the IMM and GM Progrmn restructuring had on the remaining employees. The memorandum from Tom Pickard, the Principal of the St. Thomas campus, dated April 12, 1996, referred to at page 7 of the Majority Award also contains the following statement with respect to restructuring the IMM Program; Thank you for meeting w/th me to discuss the restrucmr/ng of the 48-week Industrial Maintenance Mechanic program. I believe the outcome will help us maintain this program in 4 a manner which will not only meet the financial needs of the college, but will also allow us to continue to offer a quality program. One of the events giving rise to the restructuring of the IMM program was the retirement of Dave McAllister, a full-time Professor in this program. After Mr. McAllisters retirement the full-time teaching position was not replaced and this resulted in the remaining Professors teaching time with students being reduced from 20 to 16 hours and a resulting increase in the Technologist time alone with students in the workshop from 3 hours to 7 a week. The memorandum from Mr. Pickard, the Principal of the St. Thomas campus, dated June 14, 1996, referred to at page 13 of the Majority Award contains the following statement with respect to the restructuring of the GM program: I believe the restructuring of the machine shop program will ultimately lead to a stronger program with higher standards and criteria for graduation. During the last hour when GM program students are scheduled alone in the workshop with the Technologist Mr. Vinet or Mr. Carsons when he is replacing Mr. Vinet as Technologist, it is noted at page 9 of the Majority Award that this final hour generally involves a cleanup of 20 to 30 minutes. The evidence was that clean up also involves responsibility for the tool crib. Tools have to be taken out and put back in the tool crib and there is a system of locating tools. In fact this responsibility is so important it forms a mandatory part of the Machine Shop (MCHN181) course outline, which contains this proviso: 5 THE STUDENT WILL HAVE TO WORK IN THE TOOL CRIB AS AN ATTENDANT AND TAKE THEIR TURN AS REQUIRED. THIS IS MANDATORY. EVERYBODY WILL TAKE THEIR TURN. When it was put to Mr. Vinet that in the last hour, conducting a demonstrati°n would be rare, his evidence was to say that ... something always seemed to be going on until the students go out the door. He went on to give the example of a student working on a thread unit for 3 ~A hours who would be panicked to finish it in the last 30 minutes. The witnesses who gave evidence at the heating said it was impossible to separate the theoretical (classroom) and the practical (workshop) aspects of the courses when it came to delivery of course content to students, while they are in the workshop. Witnesses also testified they attempted in good fa/th to adhere to the instructions contained in the memo's from Mr. Pickard, but there were practical difficulties in adhering to these instructions. The Technologist Mr. Carsons descn'bed how impossible it was to separate theory from practice by saying, "I can teach someone to drive a car, but they would have to have the practical skills to do it and have someone with them to show them." In The Ontario Council of Regents for Colleges of Applied Arts and Technology. Fanshawe College and Ontario Public Service Employees' Union. March 27, 1984 (Delisle (unreported)), found that employees can wear two hats and work in two different positions in two different bargaining units. The majority states that this decision (Delisle) does not involve the bifurcation of a position and reclassification of an employee during the period that he or she performs duties which overlap with those of a higher classification. If we allow the Union grievances and this results in the bifurcation of positions, this would not be some new phenomena, as we heard evidence that the bifurcation of positions already exists. Both Technologists Mr. Vinet and Mr. Carsons testified that they have delivered lectures in the classroom and worked with students in the machine shop. During such assignments, they have been temporarily classified and paid as Professors under the academic collective agreement. As a result and based on the reasons set out above; the evidence and case law; the restructuring of the IMM and GM programs and work formerly performed by Professors now being done by Technologists; a review of the PDF's, the guide chart for Technologist B contrasted with the class definition of Instructor and the bifurcation of positions already in existence, I would have allowed the grievances. All of which is respectfully submitted by, Pauline R. Seville Union Nominee April 19, 1999