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HomeMy WebLinkAboutUnion 87-12-04 HEADNOTE i CAAT (A) OPSEU # 87B41 OPSEU LOCAL: 110 Article(s): 1~01 UN.ION (OPSEU) vs. Fanshawe College Award dated December 4, 1987 (D.H. Kates) Union grieves that work performed by a support staff bargaining unit member, work previously done by a teaching maste~, is "teacher's work" and thereby the support staff member should be treated as a member of the academic bargaining unit. Board rules that the support staff member is not engaged in a teaching capacity and does not belong to the academic bargaining unit. Grievance dismissed. Dissent by Union Nominee IN THE MATTER OF AN ARBITRATION BETWEEN: Fanshawe College (hereinafter referred to as "the College") - and - The Ontario Public Service Employees Union (hereina£tez' referred to as "the t~ede union") And In the Matter of a Grievance Relating to Employee Under the Academic Collective Agreement (OPSEU #87B41) Before: D.H. Kates, Chairman Gerry Ceplan, Union Nominee Allen S. Merritt, College Nominee Appearin9 for the Employer: G.G. Riggs, Counsel Appearing for the Trade Union: Malcolm Ruby, Counsel Heard at London, Ontario on October 30, 1987. Decision In this grievance the trade union submits that the College has violated several provisions of the academic collective agreement when it assigns "teacher's" work to an employee member of the support staff bargaining unit. It accordingly requests a direction of this Board that the employee in question be declared to hold the statu~ of "a teacher" and that the appropriate provimions of the academic collective agreement be made appli~bl~. The facts may be summarimed as follows. Since 1978 the College has offered under its Mechanical Technology Division a course leading to diplomas as a Stationary Engineer. Initially the course's purpose was to prepare students for Provincial licencing aL a Stationary Engineer, 4th Class. Since 1985 the course work hal been upgraded to permit eventual licencing at the Stationary Engineer 3rd Class level. To all intents and purpome~ the duration of the course work towardm a College diploma evidencing eligibility for Stationary Engineer 3rd Class status is sixty-four (64) weeks. Of that time thirty-six weeks are devoted to classroom (theory) activity and twenty-eight weeks are devoted to plant "in training" activity. It is common ground that the purpose of the "in plant" assignments are to enable the student to apply the theory learned in the classroom in the practical environment of plant or institutional setting. The ob3ective of the course is succinctly set out in the College'm calendar: - 2 - Stationary Engineering 3rd end 4th Glass Practical and Theory To prepare students to write the modular exams set by the Skills Development apprenticeship office. To give practical training which together with success£ul completion o£ the modular exams and the required pre-certi£ication qualifying e~perience will result in a success£ul application being made to the Ministry of Consumer and Commercial Relations £or a 4th Class Stationary Engineer Certificate. To give practical training which together with successful completion o£ the modular exams and four months pre-certification qualifying experience leading to qualification at the 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 o£ approximately four weeks duration to a variety o£ plants, hospitals, schoolm, etc., where in plant training takee 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 o{ the Chief Engineer or a Stationary Engineer, Clara. For the duration of the course the student visits 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. The course ia sponsored by the London Industrial Training Advisory Board (LITAB). LITAB is comprised of a group of 3ourneymen tradesmen who provide advice and recommendations to the College with respect to the betterment of the course. Ostensibly the course is funded by LITAB but in £act the Federal Department of Manpower provides the monies through LITAB for each student enrolled in the programme. The College receives e per diem amount for each student. And each student is given an allowance to assist in his or her support during the sixty-£our week period of the course. Since the programme's inception in 1978 Mr. Darryl Gerster has been employed in a teaching capacity. For part of each theoretical sub3ect 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 ]urisdiction 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 ere placed on the in plant training aspect of the programme Mr. G~rster 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 short, once the students have been placed Mr. Gerster's responsibility was to monitor and supervise the "in training" aspect o£ the course by visiting each facility at least once a week in order to problem ~olve. 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 £rom the a~ignment. Moreover, after the ~tudent'~ return from the assignment Mr. Gerster would evaluate or grade his or her progress as part 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 o£ the Chief Stationary Engineer. And, indeed, in a practical sense, given the short 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. At all times while Mr. Gerster discharged both the theoretical and practical components of the Stationary Engineer's Programme he was paid as a teaching master pursuant to the pay scale prescribed by the Academic Collective agreement. It is also common ground that the College offers courses in Co'Operative Training in a variety o£ 3ourneyman trades, technicians, and technologists programmes leading towards appropriate certi£ication and licencing. It is clear that the Stationary Engineering Programme is not part o£ the College's Co-operative Training Programme. Pivotal to both programmes the principle o£ combining as a part o£ the learning process both theoretical classroom study with the practical experience of on the 3ob exposure in meeting curriculum requirements. The one significant difference is that the student while enrolled in a co-operative programme is paid as an employee of the while on the "in training" portion of the course work, And, to that end, the employer who is responsible {or the student is charged with ensuring that the College'e programme requirements are met. That is to say, the employer evaluates the student's progress while on the 3ob with a view to assessing whether he or she ia pro£iting from the programme. To thi~ end 'the employer is given an evaluation sheet by the College to grade the students under variou~ categories. Or, the employer may very well use its own marking 6ormat to evaluate the student'~ per6ormance. The duties and responsibilities of "marketing" the College's Co-operative Training Programme and monitoring end supervising the in plant training, aspects o6 the programme after the studentm are placed are discharged by the Co-operative Liaison 06~icer. The Co-operative Liaison Of 6icer is an employee o£ the College and is a member o6 the ~upport sta66 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 OPSEU and Fanshawe Colleqe 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. In supervising and monitoring the practical training component of the Co-operative Programme the Co-operative O~£icer discharges, apart from mtudent evaluation, ~lmllar functions as were described by Mr. Gerster with respect to the Stationary Engineer Programme. Mr. M. Hladynick, Co-operative Liaison Officer, stated that he would visit the students periodically once placed in a facility to iron out any difficulties. He would speak to the supervising employer representative to ensure that the student is achieving the programme's ob3ective in terms of the type of work that is being assigned. He is also responsible for ensuring that the student evaluation form is completed at the end of the placement. During the 1985-86 academic year the College removed from Mr. Gerster'$ responsibilities the monitoring and supervisory functions o£ overseeing the in training portion of the Stationary Engineering programme. Those functions were transferred to Mr. Hladynick who absorbed these responsibilities as part of his duties in administering the several Co-operative Training Programmes that had hitherto been a~igned him. Mr. Hladynick stated that he secured the permission of LITAB to administer the in training portion of the Stationary Engineering Programme in the same manner as he would his Co-operative Training assignments. And, to repeat, no teaching functions ware per£ormed during the student stationary engineer placements. More particularly, the student evaluation responsibility hitherto alleged to have been performed by Mr. Gerster was clearly discharged by the Chief Stationary Engineer at the facility where the student had been placed. The trade union's complaint, as expressed in its grievance, is that Mr. Hladynick while mon±to~ing and ~upe~viaing %he 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, 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 Stationery 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, aa Mr. Hladymick indicated this transfer of responsibility was effected by the College upon the advice and recommendation of LITAB. Accordingly this Board 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 mn employee member of the Support Staff Bargaining Unit. The trade union appeared to emphasize in its submissions the di£ferences between the College's Co-operative Training Programme and the Stationary Engineer's Training Programme to suggest that the functions presently discharged by Mr. Mladynick with respect to the latter programme ~U£~ice to constitute teaching {unctions for purposes of achieving employee ~tatus in the Academic Bargaining unit. More particularly, he emphasized that the student while placed on in training is a student of the College whereas the "co-op" student while in training is an employee of the placement agency. Moreover, the trade union also stressed that the Stationary Engineers Programme emphasized "in training placement" as an actual course of instruction in .the College'~ calendar whereas the Co-operative Training Programmes hsd no such course designation'in the College's calendar. These di~£erences, of course, £or purposes of the issue rai~ed in dispute, are differences without meaning or substance. In the one instance the student while on Co-operative Training is paid a salary; whereas in the other the student while in training on the Stationary Engineer Programme receive~ an allowance from the Department of Manpower. We fail to appreciate how that distinction relative to Mr. Hladyntck's responsibilities is at all germane to the charge that he per£orms teaching £unctions. And in the second instance we do not hold it relevant to the i~sue in dispute whether or not the in training component of the 9rogramme~ is encapsulated ss a course subject in the College's calendar. Common to both programmes i~ the requirement imposed on the atudent that the "'in train~ng" component be order to achieve a College Diploma. And that requirement clearly spelled out in the relevant portion o~ the College c~lender. In summary it su~ice~ to say that Hr. Hladynick, while monitoring and supervising both programmes is not engaged in teaching capacity. As such he doe~ not belong to the Academic Bargaining Unit as alleged by the trade union in it~ grievance. Accordingly the grievance is denied. Dated this ay of December 1987. ~ David H. Kates I concur "Allen $. Merritt" College Nominee I dissent "Gerry CaDlan" (See disaent) Trade Union Nominee RECEIVED I' 0V 3 0 1987 Dr .... E, NI' b'.E: OF.:~.mU AND FAbl;3HAWEi P-LLEr4E (~87B4.t~ Gerald Cap lan Nov. 22, '1987 Tl-~,e pi.' J.t~,z.t!',:~ I i.2,:..ue i. rt mV vj.,ew t~ 't.,ol.., Lo quot. e khe Chair' 12e~ch,a~ '" . The ~ -~.~,[e , c.:,.[he~'., t~ wltel:t~ec hhe College' s i~plicit. [,'.[[ [-f I,?d,.:led I:eaci~e,' wi. [ I. be ~'es[:,o.t'~,~ ib[e ['or bokh kheo[-ekical and ] t: seems c I.e;:;.~- I-. ,a r. such a comm.if, memt. has been p~rk of Lhe Co[.l.,?9~9' s ope~',:~!.i~'t~s Llnt.:i .[ Lhe very momenk (Jersker was replaced by H.I.a,:lyai. ck. Tl'ia.I. ]..i.tkel'prel;~LJ. or~ is based on khe roi. lowing: f'irst:, t.l-te very wc,~'d.~ of t. he Calenclar, ciLed by khe Chair in his decisiov~; secon,:ll_y, t. he fact that kl'le Stat. ionary Engineers Pr'ogral[) /l'icl)(,:Ies ay, acLua..[ course of' irls'[.i'~lc%J, on designaked as 'in-Eraining placement." whereas [he CooperaLive Training Programs designs[es no such course; thtrdiy, Lhat. while coop s~uden~s were employees of the~ r JrisL:i.t:{.[t~ons as trainees , stationary engineeringj strtlent:.s; ~.'emained pa~-t, of' [he College; and, fourthly and finally, thai in fact a f. ea:hing master, Darryl Gerster, had been ~-esponsible ['of the program for some seven years, from 1978 to 1985. The cur0u[ah/ve eI'f'ec% of all t. hese poinks was %o convey the J.m[:,l"essJo['~ t.["[al. 1.1~., ,;:,:,r..[t"Se i.t~v,3l, ved a kea. chJ. ng masker in all ils co[[tpor~,?nl:,~ , J. nc[;_[d,?d ~ I:.s pv:~cl. J.c~[ a.s[:~eck, s . GeFskep may Qof. have i'~Pc;[)Olt'~-i.l'J. ] J.[.]7' .{ '_,C !l~t:,~.]. t.,.3[ I.t.tCI . SL[Ii'~aI"V':i S il'ICI 2nd evaluating each ~t:.~[,J,el'~[. % .l['~-kt'~ i~:.t,.~<1 ~,~.~'!c,~'~.(~4~c¢,. Tlto?:v? <lLlt. ies properly required ~.:;~.~v'~;t ,al' m.:~le "l,[a { i I.a.L T,..~e i'~d,:l;[,e[',f.'~ :~i3,n~rt: sLt.[den[~' work; i"L:~ [ ~,. ~ ,.,' h,-' made ,-;,.,.~ ,:. I t',,~i.I.. I:.he ~t l:,_.m!e;'tl'.~ ;..-.1: tended f-hei r in--Lraining 'I'l'tet'e i.s ,'~.o ql].:.;pu[.i.[~9 [t:~aL the cluhies carried ou~ by [-[.[a. ciynick hard [y f'e(.tLIj, l'e tt~e ski.[ Is off a t. eaching master . BuL the College i.s r'eneg~n,ll on t. he obligaf, ion~ ils own calendar implies to ils students, as wel. l as the precedents of numerous years, by peren',.ptori.ty and wJ.[.houL r~oLice or change of calendar eliminating direc[ College sL[pervisioll and evaluation of sta[ionary eng ineer ing s LL[cl. er'tt s . As a ~'e~u[l~.. I./'~e Lrni_on i~ e~'~lzi. Llec[ to believe that the .job er~lza, i [:~ I~ea,z~,:e~' ..~ '~;,~,~ ~. I..~'~a.t shor.[.J, ct r'~olL be assigned %o ~ member of