HomeMy WebLinkAboutUnion 97-09-30 GRIEVANCE AWARDS
Headnotes 95A356 (Academic)
HEADNOTES
OPSEU # 95A356
OPSEU Local 0110
OPSEU v. FANSHAWE COLLEGE, Award dated September 30, 1997 (PICHER, Michel, Chair)
CLASSIFICATION - EMPLOYEE STATUS - Nursing Liaison Position - Whether position is in
academic or support bargaining unit.
Grievance denied - Board found on the facts that the duties performed by the nurse liaison were
support rather than teaching functions. Nursing liaison worked with students in clinical setting at
hospitals in the final semester of the three year nursing program. Good review of caselaw on
academic/support distinction.
R. Ross Wells
IN THE MATTER OF AN ARBITRATION
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("the Union")
- and -
FANSHAWE COLLEGE
("the College")
Re: GRIEVANCE RE NURSING LIAISON POSITION
BOARD OF
ARBITRATION: Michel G. Picher - Chairperson
Bob Gallivan - Employer Nominee
John McManus - Union Nominee
APPEARING FOR
THE EMPLOYER: Barry J. Brown - Employer Counsel
Edith Davis - Chair, Nursing Education
Division
Pat Kirkby
Ingrid Van Kemenal
APPEARING FOR
THE UNION:
R. Ross Wells - Union Counsel
Paddy Musson - President Local 110
Tom Geldard - Vice-President Loc. 110
Karen O'Brien
Penny Edwards
A hearing in this matter was held in London
on November 8, 1995 and November 7, 1996
AWARD
The Union alleges that the College has failed to acknowledge that an
assignment which involves liaison functions between the College and nurses
employed by local hospitals who oversee nurses in training is work in the
academic bargaining unit. The College maintains that the task of the liaison
officer does not involve academic or teaching functions in any significant degree,
but rather involves ongoing administrative responsibilities which fall properly
within the support staff bargaining unit.
The facts are not in substantial dispute. The College operates a three-
year program in nurses' training, structured over six semesters. The sixth
semester is dedicated to practical experience by the assignment of student
nurses to work in a local hospital. Upon the undertaking of the sixth or "pre-
graduate" semester, the student nurse's theory and clinical courses are
complete, and while working in the hospital each individual student nurse is
assigned to an R.N. as her or his "preceptor". The preceptor fulfils a mentoring
role on a one-to-one basis with the student nurse, assisting the nurse's
development in the day-to-day practical tasks and routines of nursing. An
document entitled "Orientation Package for Preceptors", developed by the
College in 1994, gives the following description of the preceptor program:
A "Preceptor Approach" is an individualized teaching/learning
method designed to offer the student day-to-day practice with a
role model and resource person immediately available within the
clinical setting.
A Preceptor is a practising nurse who has demonstrated
competence and expertise in nursing. The Preceptor serves as a
role model to an assigned student and facilitates student learning.
The preceptor normally enjoys teaching as part of the nursing role,
and wants to help students to adjust to their graduate role,
recognizing that the process, in turn, improves one's own
knowledge and skills. Functioning as a Preceptor is often viewed
by those who choose the role as an opportunity to demonstrate
leadership and mentoring skills and to make a contribution to
enhancing the profession's rank by nurturing new colleagues'
professional development.
The student to be preceptored is, in this project, a student who has
met all theory course objectives and all clinical course objectives of
the three-year diploma program at a satisfactory level. One major
objective remains to be accomplished; to adapt to the role
transformation from student to graduate nurse, to gain more self-
confidence, and to have better ability to assume the responsibilities
with which she/he will be charged.
Specifically, the obiectives of this portion of the pregraduate
experience will provide for synthesis and consolidation of previous
learning and opportunities for increasing judgement, skill and
beginning independence in a work experience similar to that of the
staff nurse. In accordance with provincial ministry guidelines, the
specific objectives will include:
1) setting priorities based on individual patient needs;
2) planning and organizing nursing care for an increasing number
of patients and complexity of care;
3) adjusting activities to cope with unanticipated events;
4) implementing planned nursing care in a reasonable length of
time with due attention to conservation of energy and supplies;
5) developing an understanding of the interaction of the health
care team;
6) developing the ability to provide direction and supervision of the
registered nursing assistant and others to whom the registered
nurse delegates activities;
7) providing an opportunity to function independently of the
teacher;
8) providing an opportunity to become socialized into the graduate
nurse role.
The role of the staff liaison person is defined as follows at page 9 of the
orientation package:
Staff Liaison Role / Responsibility
1. Meets with the preceptor to clarify the learning and course
objectives
2. Visits the clinical unit and assists with resolving any problems
identified by the preceptor and/or student. Reviews the student
log book at periodic intervals.
3. Consults with the preceptor on a regular basis regarding
student's progress mid-semester and end-of-semester
evaluations.
4. Be a resource person and support for student and preceptor.
5. Participates in the evaluation of the preceptor approach for the
pregraduate period.
Educational accountability is described in the following terms at page
19 of the document:
EDUCATIONAL ACCOUNTABILITY
I. The College
Because this is a College course, part of the curriculum, and
assigned credit, ultimate accountability for this educational
experience rests with the College. Responsibility for the quality of
the experience belongs to the teacher. The College needs to
supply clear objectives for the learning experience and to provide
opportunities for students to meet these learning objectives.
II. The Preceptor
Staff nurses interested in helping students and the profession have
agreed to assist in providing the learning opportunities for
students.
III. The Student
The student is responsible for meeting objectives and for seeking
guidance as needed. The student doesn't need to decide what
needs to be learned; objectives are provided by the College. The
student is accountable for learning and achieving the objectives.
The evidence for the College was given by Ms. Edith Davis, Chair of the
Nursing Education Division. She relates that at the end of the clinical rotation
which student nurses experience through the fifth semester of their training, they
work with a teacher to develop a list of personal objectives for their sixth
semester, which will involve practical training in one of several local hospitals.
She relates that prior to the commencement of the pre-graduate sixth semester
she conducts a general assembly of the nursing students involved, along with
nursing program co-ordinator Carol Butler. She relates that the students are
given two to three hours of orientation in the sixth semester field training
program and the preceptor system. She further relates that prior to the
commencement of the semester she and Ms. Butler visit the various hospitals
and review the impending program with the nurses who have volunteered to be
preceptors. She states that Ms. Butler takes particular time to explain to the
preceptors the evaluation process and the filling out of the evaluation forms for
which they are responsible, and which she ultimately signs as the course
teacher, confirming either a pass or fail. She further states that preceptors are
encouraged to meet and discuss with the student nurse her or his individual
statement of goals and to engage in a discussion of what the student needs to
accomplish. This, she maintains, is to allow the preceptor to become involved in
a degree of planning for the experience which the student nurse will need to
meet the expectations which are discussed.
Ms. Davis relates that a change was made in the role of the liaison officer
commencing in the fall of 1994. She notes that in the Orientation Package for
Preceptors which was utilized in the academic year 1992-93, page 9 of the
document had a different formulation. What is now referred to as the "staff
liaison role" was then referred to as the '~'aculty liaison role". The text of page 9
then read as follows:
Faculty Liaison Role/Responsibility
1. Meets with the student and preceptor to review the learning and
course objectives.
2. Visits the clinical unit to review the log books of students on
duty, and assists with resolving any problems identified by the
preceptor and/or student.
3. Consults with the preceptor on a regular basis and assists with
the mid-semester and end-of-semester evaluations.
4. Be available for consultation with the preceptor/student pair for
which she/he is the assigned instructor of record.
5. Be a resource person and support for student and preceptor.
6. Be a student advocate.
7. Participates in the evaluation of the preceptor approach for the
pregraduate period.
Ms. Davis stresses that significant adjustments were made in the
responsibilities of the liaison officer. She notes that the revised duties no longer
involve the liaison officer assisting with end-of-semester evaluations, stressing
that there is no real pedagogical responsibility in the new conception of the
liaison officer's role.
By Ms. Davis' account the role of the liaison officer is to function as a link
between the College and the field institution, acting at times as an advocate for
the student and as a source of support for the preceptor. The overall
responsibility, she states, is to ensure that the assignment which the College
expects to occur is being delivered. She states that in the fall semester of 1994
the liaison officer's role was assigned to support staff employees, and was not
given to persons with teaching responsibilities. According to her evidence, the
presence of a surplus number of teachers eventually required her to find
additional work for some teaching staff, as a result of which she signed three
persons from the teaching complement the staff liaison responsibilities for the
first semester of 1995. The persons so assigned were Ms. Karen O'Brien, Ms.
Brenda Hutton and Ms. Joyce Mullen, all of whom have a nursing background.
She met with them in conjunction with Ms. Butler, on or about December 22,
1994, indicating to them that they would be assigned the liaison officer's
function, but that it would not be a teaching responsibility for the purposes of
their Standard Workload Form (SWF). Ms. Davis states that she emphasized
that the preceptor has a substantial role as both teacher and role model to the
nurse in the pre-graduate semester. She stressed that the liaison officer has
some discretion in determining when to visit the institution, although it was
expected to be done on a regular basis. She advised the liaison officers that in
the event they could not meet with a given student or preceptor, they were to
consult with the log book which was kept for the purpose of recording the
student's experiences, with entries being made by both the preceptor and the
student, and that they should note in the log book that they had attended at the
hospital. According to her estimate, the liaison officer is expected to devote a
half-hour per student per week. She further relates that the program co-
ordinator advised the employees that they were to provide all necessary support
to the students and preceptors and should record any absences, making suitable
arrangements for makeup time in the event of excessive absenteeism.
Ms. Davis relates that she met again with the three liaison officers on or
about March 13, 1995, roughly at the mid-point of the semester. At that point
she got some feedback from the liaison officers as to possible problems which
they perceived, including the case of one student who was encountering
problems with the dispensing of medications to a particular patient. As a result
the co-ordinator, Ms. Butler, was instructed to contact the preceptor and the
student with respect to the difficulties being encountered. Under cross-
examination the Chair of Nursing Education confirmed that it is necessary for the
person who performs the liaison officer function to have some background in
nursing and health care. That, she concedes, is necessary for understanding
the entries in the log book and fully appreciating the effectiveness of the
program being experienced by the student. She does not agree, however, that
the nursing background of the individuals who perform the liaison function
changes the fundamental character of their responsibility, or qualifies the work in
question as teaching.
Registered Nurse Karen O'Brien gave evidence on behalf of the Union.
She confirms that she was assigned to the liaison function, being responsible for
some thirty-three students, in the semester extending from January to May of
1995. Her assignment was pursuant to a memorandum from Ms. Davis dated
December 22, 1994 which reads as follows:
SUBJECT: Work in Lieu of Teaching
As per our discussion today you will be the liaison person (16.5
hours/week) for NURS622 at Woodstock General Hospital and
St. Thomas-Elgin General Hospital from January 9 to May 5, 1995.
You will use the current examination blueprint to prepare at least
four comprehensive test items per week.
If you have any questions, please consult with me.
(signed)
E. R. Davis
Chairperson
Nursing Education Division
It is common ground that the assignment of preparing comprehensive test
items is unrelated to the functions of the liaison officer which are the subject of
this grievance. Ms. O'Brien relates that she attended orientation seminars with
the students at both the Woodstock General Hospital and the St. Thomas-Elgin
General Hospital. She met with each of the students during their first week or
week and a half at the hospitals, as well as with each preceptor, trying, insofar
as possible, to meet with both together.
Ms. O'Brien described her responsibilities during the semester as
counselling, tutoring, and acting as an advocate for the student. She states that
on occasion she would deal with a situation which the student nurse could not
handle, and involve herself in discussions with both the student and preceptor in
an effort to solve the problem. Noting that she had performed the function of
faculty liaison person in 1993, before the redrafting of the language of the
orientation package, Ms. O'Brien submits that there was virtually no difference in
her role as she performed it in 1995. She states that in 1995 it remained her
responsibility to review the students' individual goals and to ensure that each
preceptor was familiar with her or his educational responsibilities. She further
relates that she periodically visited the hospitals, reviewing log entries "...to get
a sense of the progress the student was making". She elaborated that the
preceptor also made comments in the log book and reviewed the student's
comments, adding that the log book is used as a resource document for the
evaluation of the student over the term.
.... 10
By way of examples of problems, Ms.O'Brien noted one student who told
her that she felt that she was being utilized at the level of a staff member, due to
a shortage of employees. She relates that the matter was then raised with the
preceptor and nurse-manager and subsequently she checked to see what had
happened to correct the problem. She also related the problem, touched upon in
the evidence of Ms. Davis, concerning a particular student who had difficulty with
medications. She relates that she met with both the student and the preceptor
and that in her discussions with the student she reviewed what the student nurse
might do to avoid problems in the dispensing of medications, going over certain
basic principles with her. She further relates that on another occasion she
observed a student nurse using an unsafe method in the preparation of
medications, and immediately intervened to suggest a better way of proceeding.
Ms. O'Brien states that after the first eight weeks of the semester she met
with the preceptor to consider the evaluation of the students to that point. It
appears that the performance of a particular student, the one who encountered
'difficulties with the medications, was seen as a problem by the preceptor, who
was not satisfied with the student's performance to that point. Ms. O'Brien states
that at mid-semester she spoke with all students and preceptors with a view to
determining whether the students were progressing sufficiently and if not, what
the focus should be in the second eight weeks of the semester. By way of
example, she relates that with respect to the person encountering difficulties with
the administration of medications, she attempted to see whether there might be
11
some way of giving her more opportunity to gain experience in that area by an
adjustment in the scheduling of her work. As she put it, if a student related to
her that he or she felt that they were not acquiring the necessary experience,
"... my response would be to negotiate with the preceptor to give the student a
better experience". Ms. O'Brien confired, however, that she was not responsible
for the actual evaluation, and that the preceptor is responsible for filling out the
evaluation form which is included in the orientation package and reviews some
six areas of performance. As liaison officer, she is responsible for filling out the
first page of the evaluation sheets, noting such things as the days of absence
and whether the student has passed or failed the semester. The sheet also
contains a space for the signature of the preceptor and faculty liaison officer,
confirming conferences between them at both mid-semester and end-of-
semester. As liaison officer she was responsible for keeping the evaluation
forms until the program was completed.
Under cross-examination Ms. O'Brien confirmed that there had been
language changes made to the description of the liaison officer's responsibilities
as between the 1993 and 1994 orientation packages. In particular, she agreed
that the description within paragraph 4 no longer characterizes the liaison officer
as "instructor of record". She also agreed that the faculty member of record who
now submits the grade of the student is not the liaison officer, but rather the co-
ordinator of the program, Ms. Butler. She agreed with counsel for the College
that in the circumstances it is now the co-ordinator who is the "teacher"
.... 12
ultimately responsible for the assignment of the student's grade, as
contemplated within the document describing educational accountability. She
further conceded that as liaison officer she has no involvement in designing the
placement program or deciding on the individual placement of students in the
various hospitals. Nor is she involved in the development of curriculum for the
students or the individual instruction of students in the program. When asked to
further describe the incident in which she corrected the student who was
following an unsafe methodology in the preparation of medications, she agreed
that it was simply an event which she had observed by coincidence, agreeing
that "... any R.N. would have intervened".
At issue is whether the work of the liaison officer falls within the academic
bargaining unit, and would qualify as teaching for the purposes of an employee's
SWF. Counsel for the Union notes that in 1993 the liaison function performed
by Ms. O'Brien was treated by the employer as academic bargaining unit work
and was included within her teaching contact hours. He stresses that there was
no significant difference with the role that she played in the winter semester of
the 1994 academic year. He notes the evidence of Ms. Davis, which confirms
that in her own mind the liaison officer position was never in fact a teaching
position, and her belief that the adjustments in the descriptions of the officer's
responsibilities made in 1994 were in fact intended to bring the language of the
document into line with the working reality.
Counsel draws to the Board's attention the decision of a workload
resolution arbitration, chaired by Arbitrator Norman M. Aitken, dated October 7,
1993. That award which, it is agreed, is not precedential for the purposes of the
collective agreement, confirmed that the liaison function performed by Ms.
Penny Edwards and Ms. Karen O'Brien were to be treated as teaching contact
hours for the purposes of their SWF's in 1993. He submits that this Board
should follow the decision of the workload resolution arbitrator, even though we
may not be strictly bound to do so. In this regard, counsel refers the Board to
the decision of then-Professor Bora Laskin in Re Brewers' Warehousing
Company Limited, a decision dated June, 1954 appearing in the first series of
the Labour Arbitration Cases, the volume of which was not identified.
Counsel points to a number of provisions of the orientation materials to
support his argument that the liaison officer does have a responsibility which can
fairly be characterized as contributing to the teaching program. He stresses the
ongoing consultation between the liaison officer and the preceptor, the periodic
review of the log book and the involvement of the liaison officer with the
preceptor in recording mid-semester and end-of-semester evaluations of the
students' performance. He also directs the Board to a passage which appears in
materials handed out to students for the pre-graduate course, Nursing 622. Both
the 1994 and 1995 versions of the document contain, in part, the following
statement:
Two written evaluations will be given by the preceptor in
consultation with a staff liaison member.
Counsel submits that this Board must appreciate that the liaison officer's
role does constitute a form of teaching in a work setting which differs from the
normal classroom or lab situation, involving as it does extensive clinical practice.
In support of its submissions the Union further refers the Board to the decision of
a board of arbitration chaired by Arbitrator Kevin M. Burkett, between the same
parties, an unreported award dated March 29, 1989. In that award the majority
confirmed that the practice of the College to effectively disregard the
interpretation rendered in a prior workload arbitration was in violation of the
collective agreement and issued a declaration accordingly.
Counsel for the College submits that the jurisprudence in this area does
not support the Union's position. He argues that it is not sufficient that there be
some tangential pedagogical involvement, or that a given assignment be
generally in support of teaching or the teaching program, to bring the position
within the academic bargaining unit. He submits that it is the core functions of
the job which must be looked to, and that when close regard is had to the
evidence, it must be concluded that the duties and responsibilities of the liaison
officer are administrative in nature, and do not constitute teaching.
15
In support of his' submission, counsel stresses that there are three
aspects to the teaching role which constitute the core functions of a teacher.
These, he submits, involve the development and preparation of curriculum or
lessons; the delivery of information or curriculum content to students; and
evaluation of a student's progress in acquiring knowledge and understanding of
the information imparted. Counsel submits that none of those functions is part of
the core role of the liaison officer, stressing that it is common ground that there
is no involvement of the liaison officer in the preparation of curriculum, the
delivery of actual hands-on teaching, or the evaluation of the students'
performance in the clinical hospital work of the sixth semester. He stresses that
the evidence discloses that the actual teaching or training of the students is
done hands-on by the preceptor, as is the evaluation of her or his progress.
Although there is no formal curriculum, he further notes that the program to be
followed or the experiences to which the student is to be exposed are also
determined by the preceptor. Further, counsel stresses, the decision as to
whether the student passes or fails the clinical semester rests with the preceptor,
'in conjunction with the program co-ordinator. The liaison officer has no role in
the assignment of a mark.
Counsel for the College acknowledges that, as reflected in the evidence
of Ms. Davis, the fact that the liaison officer has a knowledge of nursing is useful
in the performance of the liaison role. That, he submits, does not convert the
work in question into a teaching function. An appreciation of the work of nurses
16
and the nursing profession is, he agrees, important to the types of administrative
functions and discussions which the liaison officer may engage in, but is not, of
itself, teaching. Nor is it relevant, he submits, that the work in question is
performed by persons whose other responsibilities may include teaching.
Counsel further stresses article 11.02 of the collective agreement, noting
that the workload resolution arbitration of Mr. Aitken is, in accordance with article
11.02. F8, restricted in its application to the employee in question for the period
under consideration, and can have no application beyond that specific case. On
that basis he submits that this Board should place no reliance on that decision.
Alternatively, he submits that the decision is simply wrong, and in any event, was
decided largely on the basis of the language of the orientation package, and the
previous description of the role of the liaison officer. In this regard he notes that
in the decision of the board of arbitration chaired by Mr. Burkett, it is apparent
that the arbitrator did not rely on the previous workload resolution arbitration in
coming to the conclusion that it did.
Counsel for the College maintains that the pedagogical responsibility for
the teaching and evaluation of the nursing students working in the hospitals
during the sixth semester rests exclusively with the preceptor and the program
co-ordinator. He notes the evidence of Ms. O'Brien to the effect that when
problems are detected she relays the difficulties to the co-ordinator, Ms. Butler.
The evidence further discloses that there are ongoing contacts between the co-
' ' 17
ordinator and the preceptors, and that ultimately the evaluation of the students is
resolved in discussions between the preceptor and the co-ordinator, with the co-
ordinator being ultimately responsible for the final mark attributed. On the
whole, he submits, the evidence confirms that the tasks performed by the liaison
officer cannot fairly be characterized, in their core functions, as constituting a
teaching position. Stressing that it is the core functions, and not the peripheral
aspects of the job which should govern, counsel for the College refers the Board
of arbitration to the following arbitration awards between these same parties:
Policy Grievance No. 96C008 - Support Teaching in Tourism and Hospitality - a
decision of a board chaired by Arbitrator Kevin M. Burkett dated August 20,
1996; Union Grievance (OPSEU File No. 89D310), an award of a board of
arbitration chaired by Arbitrator Gail Brent dated June 12, 1991; Union Policy
Grievance OPSEU File No. 87Z12), an award of a board of arbitration chaired by
Arbitrator Gail Brent dated May 9, 1990; Union Grievance (OPSEU File
89A160), an award of a board of arbitration chaired by Arbitrator Gall Brent
dated November 28, 1989; Union Grievance (OPSEU File No. 87B41), an award
of a board of arbitration chaired by Arbitrator D. H. Kates dated December 4,
1987; and Union Grievance (OPSEU File 86H25), an award of a board of
arbitration chaired by Arbitrator Gail Brent and dated April 24, 1987.
We turn to consider the merits of this dispute. There has, it is clear, been
ample jurisprudence between these parties with respect to the placement of
positions in the academic bargaining unit, or alternatively in the support staff
18
bargaining unit, depending on the content of the job in question. Prior awards
have recognized that there can be an overlap in functions, and that it is the core
functions of the job which must ultimately determine whether or not it can be
fairly characterized as teaching so as to fall under the collective agreement
governing the terms and conditions of employment of academic employees. In
Union Policy Grievance - File No. 96C008, a board of arbitration chaired by
Arbitrator Kevin M. Burkett had occasion to consider whether a person classified
as Technician B under the support staff collective agreement, charged with
managing an on-campus restaurant, engaged in teaching in relation to students
assigned to perform apprenticeship work or clinical work in the preparation of
meals in the restaurant. More narrowly, the issue was whether, in the absence
of the course instructor, who was in the kitchen during certain hours, the kitchen
manager could be said to perform teaching functions.
The majority of the board found that the contact with students, including
the answering of occasional questions, experienced by the kitchen manager did
not bring her within the academic bargaining unit. In coming to that conclusion
the board reviewed a number of prior awards, commenting as follows at pp.9-11:
The Union argues in reply that the core function analysis advanced
by the employer and utilized by Arbitrator Brent does not apply
where the affected employee can have '~[eet in both units". It is
submitted that the core function analysis is inappropriate in
circumstances where an employee may spend part of the work day
in one unit and part in the other, as does Mr. Dolson, and where
the Union is seeking to have the grievor reclassified only for the
period of the work day that it claims she is performing as an
instructor.
In Re: Fanshawe Colle.(Te and O/~seu (Grievance #89A160) supra,
Arbitrator Brent was faced with the issue of whether an employee
classified and paid as a Technologist B under the support staff
collective agreement was, in fact, working as a teaching master
under the academic collective agreement. In analyzing the issue
before her, Arbitrator Brent, although appointed under the
academic agreement, had reference to the job summary of the
Technologist B under the support staff collective agreement.
There does not appear to have been any dispute that the
Technologist B job summary was properly before her. Recognizing
the overlap between the two positions, she applied a core function
test in dismissing the grievance. She concluded as follows:
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 the
student. It is the core function of his job to administer all aspects
of the lab, to demonstrate to students and to instruct them in the
practical application of the matters covered in the course content.
Those aspects of his job which deal with instructing students have
been recognized by the parties as being the sort which are
appropriate to a Technologist B. It therefore cannot be said that
the core function of this job is the same as the core function of the
teaching master job.
In Re: Fanshawe Colle.cle and OPSEU (Grievance #87212) supra,
Arbitrator Brent was faced with essentially the same issue. She
described the issue and its importance to the respective parties in
the following terms:
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 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 shops 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.
, ~' 20
She again went on to acknowledge the intended overlap between
the two positions and to apply a core function test in dismissing the
grievance, 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 the 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.
If we were to apply the core function analysis to this case we would
be compelled to come to the same conclusion as did Arbitrator
Brent in the two aforecited awards between these parties.
Whereas Ms. Bond interacts with students in the hours for which
she seeks to be paid as an instructor and does so in the absence
of a professor, by her own evidence she may answer up to six
questions a day and perform one demonstration a week. She is
not responsible for any classroom instruction; she is not
responsible for ensuring that a predetermined curriculum is
covered; she is not responsible for the instructional approach or
evaluation systems; and she is not responsible (although she gives
some input) for the evaluation of the students. All the while she
carries on with and is 'responsible for'the Pricing, 'ordering,
receiving, distribution and inventorying of the foods and other
supplies required to operate the kitchen and for the functioning of
the kitchen equipment. Given the scope for interaction with
students contemplated under the Technician's job description it is
not difficult to conclude on a core function test that Ms. Bond is
properly a Technician B within the support staff bargaining unit.
A closer parallel to the facts before the board in the instant case emerges
from the award of a board chaired by Arbitrator D. H. Kates, involving the same
parties, in an unreported award dated December 4, 1987, OPSEU Grievance
#87B41. In that case the College employed an individual whose responsibilities
included overseeing the administration of a program of practical experience for
students training as stationary engineers in the Mechanical Technology Division
of the College. After some 36 weeks of classroom training, students in the
course were assigned to various industrial plants, hospitals or other institutions
for 28 weeks of practical field training. At p.2 of the award Arbitrator Kates
relates the content of the course description from the College's calendar as well
as providing an outline of the clinical rotation:
Stationary Engineering 3rd and 4th Class
Practical and Theory
To prepare students to wdte the modular exams set by the Skills
Development Apprenticeship office. To give practical training
which together with successful completion of the modular exams
and the required pre-certification qualifying experience will result in
a successful application being made to the Ministry of Consumer
and Commercial Relations for a 4th Class Stationary Engineer
Certificate. To give practical training which together with
successful completion of the modular exams and four months pre-
certification qualifying experience leading to qualification at the 3rd
Class level.
It is also common ground that as the student progresses through
the various learning modules comprising the theoretical or
classroom portion of the course he is assigned for intervals of
approximately four weeks duration to a variety of plants, hospitals,
schools, etc., where in plant training takes place. These "in plant"
training periods are specifically identified in the course calendar as
a requirement of the course. While on "in plant" training the
student is under the control and direction of the Chief Engineer or
a Stationary Engineer, 1st Class. For the duration of the course
the student visits a variety of facilities on a rotational basis in order
to become familiar with the different aspects of the stationary
engineer's duties and responsibilities while assigned to in plant
training. The student remains a student of the College and is not
an employee of the facility.
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The role of the person with original administrative responsibility, a
member of the academic bargaining staff, is related, in pad, in the following
terms as pp.3-4:
Since the programme's inception in 1978 Mr. Darryl Gerster has
been employed in a teaching capacity. For part of each semester
Mr. Gerster was involved in classroom activity teaching theoretical
subject matter that comprised a part of the academic curriculum.
The other portion involved Mr. Gerster servicing the in plant
training aspect of the course. These services included the task of
canvassing the required plant or institutional facilities within the
College's territorial jurisdiction in order to secure their co-operation
in accepting students as trainees. Once sufficient facilities for
student placement have been secured, Mr. Gerster then assigns
the student to the appropriate facility in accordance with the latter's
stage in the programme. While students are placed on the in plant
training aspect of the programme Mr. Gerster visits the plant or
facility to determine whether both the students and the employer's
representatives (i.e., the Chief Stationary Engineer) are
encountering any difficulty. In shod, once the students have been
placed Mr. Gerster's responsibility was to monitor and supervise
the "in training" aspect of the course by visiting each facility at
least once a week in order to problem solve.
Mr. Gerster also indicated that there exists a student evaluation
component to the plant training aspect of the course. During his
weekly visits he would often question the student about his
understanding and appreciation of the course work imparted in the
classroom in light of his or her experience in the actual work
environment. Moreover, the student might be interviewed with
respect to several aspects of the facility's operations to ensure that
the student was profiting from the assignment. Moreover, after the
student's return from the assignment Mr. Gerster would evaluate or
grade his or her progress as pad of the course result.
From another perspective Mr. Gerster conceded during his cross-
examination that the student while on in plant training was under
the direct control of the Chief Stationery Engineer. And, indeed, in
a practical sense, given the shod duration of his visits, the plant
engineers assumed much of the responsibility of "showing the
students the ropes" and reporting his or her progress to Mr.
Gerster. In other words, there is no doubt that Mr. Gerster, while
monitoring the course's plant training placement programme,
assisted the resident stationary engineer oversee the students'
progress.
The majority of the board further considered the College's Co-operative
Training Program, of which the Stationary Engineering program was not a part.
The award notes that the Co-operative Training Program operates with respect
to a variety of trades and technologies, involving the placement of students in a
number of apprenticeship situations for the purposes of gaining practical
experience through on-the-job exposure, albeit the student is paid as an
employee of the host institution. The majority noted that the Ontario Labour
Relations Board excluded the Co-operative Liaison Officer from the academic
bargaining unit, as related at p.5-6:
The duties and responsibilities of "marketing" the College's Co-
operative Training Programme and monitoring and supervising the
in plant training aspects of the programme after the students are
placed are discharged by the Co-operative Liaison Officer. The
Co-operative Liaison Officer is an employee of the College and is a
member of the support staff bargaining unit represented by
OPSEU. It is common ground that while performing these duties
the Co-operative Liaison Officer is not engaged in any teaching
capacity (see: Re ODseu and Fanshawe Colle.qe OLRB
#1668-83-M, decision dated September 19, 1984). More
specifically, the Co-operative Liaison Officer does not engage in
any evaluation of a student during in training placement.
The Union took the position that the Co-operative Liaison Officer, Mr. M.
Hladynick, who was assigned the administrative responsibility for the field
rotation of the students in Stationary Engineering was effectively performing
work which properly belonged within the academic bargaining unit, previously
performed by academic staff member Darryl Gerster. The board rejected the
Union's position in the following terms at pp.7-8:
The trade union's complaint, as expressed in its grievance, is that
Mr. Hladynick while monitoring and supervising the in training
component of the Stationary Engineers Training programme was
performing teacher's work and thereby should be treated as a
member of the Academic Bargaining Unit. Accordingly, the
principal issue before this Board is whether the evidence
demonstrated that Mr. Hladynick, having regard to the duties he
performs, is engaged as a "teacher". And, of course, that evidence
demonstrated that he is not.
Indeed, the sole "teaching" duty hitherto discharged by Mr. Gerster
while he was charged with the responsibility for the in training
aspect of the Stationary Engineer's programme pertained to
student evaluation while on in plant training. That responsibility, at
least to the extent it may be said to have been formerly discharged
by Mr. Gerster, was clearly transferred to the representatives of the
facility at which the student is placed. And, indeed, as Mr.
Hladynick indicated this transfer of responsibility was effected by
the College upon the advice and recommendation of LITAB.
Accordingly this Board has no alternative but to subscribe to the
findings of the OLRB declaring the Co-operative Liaison Officer,
having regard to the duties and responsibilities performed,
continues to be properly viewed as an employee member of the
Support Staff Bargaining Unit.
When the principles emerging from the above cases are applied to the
facts at hand we are left in some doubt as to the merit of the Union's position.
The evidence before us amply discloses that the liaison officer performs none of
the duties traditionally associated with teaching. There is no responsibility for
the assembly or preparation of curriculum or related materials. There is no
involvement in the structuring of the program which the student is expected to
follow under the guidance of the preceptor. There is no responsibility for day-to-
25
day instruction or hands-On training of any kind. Finally, the liaison officer has
no responsibility for the substantive assessment of the student's performance or
the eventual assignment of a grade, on and pass/fail basis. The evidence
demonstrates that the responsibility for the content of the program, the selection
of host institutions and preceptors, as well as the orientation of both students
and preceptors for the purposes of the pre-graduate program vest entirely in the
chair of the Nursing Education Division and the program co-ordinator. While the
liaison officer has some role in identifying problems both through discussions
with the preceptor and student, and a review of the log book, it appears that she
or he acts then acts principally as a conduit, relating the problem back to the
program co-ordinator, who is then responsible for communicating with the
preceptor for the purposes of implementing a solution. While it is true that the
liaison officer may discuss solutions with the student and preceptor directly, the
ultimate responsibility lies with the program co-ordinator. Additionally, as
disclosed above, while the liaison officer may discuss a student's progress and
assessment with the preceptor, the responsibility for the grading of the student is
'the preceptor's, with the responsibility for the eventual pass/fail mark being that
of the program co-ordinator.
In what meaningful sense can it be said that the liaison officer performs a
teaching function? To be sure, as related by Ms. O'Brien, contact with student
nurses will give rise to occasions where the liaison officer might see a problem
and offer advice on the spot. In that respect, her involvement is not unlike that
of the kitchen manager Whose responsibilities were examined in the award of
Arbitrator Burkett. Occasional or incidental opportunities to offer a tip or a
corrective suggestion do not, of themselves, suffice to bring a position within the
academic bargaining unit. As the cases amply disclose, it is the core functions
of the duties and responsibilities of the job which must be looked to. Upon
careful consideration of the totality of the evidence before us, we are compelled
to the conclusion that the core responsibilities of the liaison officer's role are
more fairly characterized as administrative and clerical, rather than in the nature
of a teaching or academic responsibility. Such functions as monitoring
attendance, compiling assessments and grades signed by others, reviewing logs
and even periodic meetings with students and preceptors do not, in our view,
qualify as teaching in the sense contemplated by the collective agreement, as
that concept has evolved in the jurisprudence reviewed above. If the facts of this
case can be analogized to a university setting, many of the duties and
responsibilities of the liaison officer can fairly be likened to the tasks normally
performed by a dean's secretary or administrative assistant. We are satisfied
that the core functions of the position in question do not fall within the concept of
teaching, and should not be viewed as teaching contact hours or work falling
within the academic bargaining unit. While it is undeniable that the role of the
liaison officer contributes substantially to the advancement of the education and
training of the student nurses in the pre-graduate semester, the position is
fundamentally administrative, and not pedagogical in nature.
For all of the foregoing reasons the grievance must be dismissed.
Dated at Toronto, Ontario this 30th day of September, 1997.
M~on ~
"Bob Gallivan"
Employer Nominee
"Dissent to Follow"
John McManus, Union Nominee