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HomeMy WebLinkAboutUnion 98-03-26IN THE MATTER OF AN ARBITRATION NIAGARA COLLEGE (The College) ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF A UNION GRIEVANCE - ~96C006 BOARD OF ARBITRATION: Kenneth P. Swan, Chairman David Cameletti, College Nominee Tarmny Browes-Bugden, Union Nominee APPEARANCES: For the College: Brenda Bowlby, Counsel Leo Tiberi, Director, Information and Computer Technology Jim Garner, Director, Human Resources For the Union: Alick Ryder, Counsel Sherd Rosen, President, Local 242 Anne Wylie (June 21, 1996 only) Erik Madsen (June 21, 1996 only) Dave Robinson (June 21, 1996 only) A WARD Hearings in this matter were held in St. Catharines, Ontario on June 21, 1996 and September 29, 1997. Thereafter, the board of arbitration met in executive session and considered the issues in dispute. At the outset of the hearing the parties were agreed that the board of arbitration was properly composed and had jurisdiction to dispose of those issues. The dispute arises from grievance 96C006, filed by the Union's Local 242 on June 19, 1995. It alleges a violation of the collective agreement when the College reorganized the counselling function in the Department of Co-operative Education and Career Services. Specifically, it alleges that work of the academic bargaining unit, previously performed by individuals in the classification of Co-op Counsellor, were assigned to a classification entitled "Co-op Consultant", included in the support staffbargalning unit. The remedy sought is the inclusion of these positions in the academic bargaining unit. Given the nature of the remedy, notice was duly given to the support staffbargaining unit, and representatives were present at the hearing. Notice was also given to the incumbents in the Co-op Consultant classification, who might be vulnerable to layoffin the event the grievance were to succeedl The history of this reorganization is not really in dispute, and may be briefly stated. Until the 1995-96 academic year, the Co-operative Education Program was delivered by a number of Counsellors in the academic bargaining unit, assisted by a number of Co-op Liaison Officers in the support staff bargaining unit. The Co-operative Education Program involves terms of academic studies alternating with terms of employment, success in both aspects of which is necessary to complete the program. The College documentation given to co-op students both before and after the -2- reorganization promised "individual counselling, classroom instruction and workshops" to permit students to study the skills required to seek employment in "today's job market". This was the second reorganization in Co-operative Education in recent times. In 1992, the Co-op Liaison Officer position was created to take on a number of the functions which apparently had been performed, 'at least in part, by Counsellors prior to that date. It is of some assistance to review the duties of the two positions, which were then in the separate bargaining units, as a basis f~om which to analyze what occurred in 1995-96: POSITION DESCRIPTION - CO-OP COLrNSELLOR Counsellors' responsibilities are defined in the "Classification Definitions for Positions in the Academic Bargaining Unit". Specifically, Counsellors of Co-operative Education maximize the Co-op experiential learning process through 1) the delivery of Co-op curriculum, 2) educational and career counselling, and 3) student evaluation. They also provide 1) research, 2) consultation, and 3) support for the activities of the Co-op Liaison Officers in order to facilitate the success of the Co-op students. Accountabilities are as follows: 1. Research, develop, and teach Co-operative Education curriculum consisting of objectives in the areas of job search, job readiness, and job success. 2. Provide counselling to assist Co-op students to define realistic short- and long-term career goals and to assist the flow of information to students concerning Co-op employment opportunities. 3. Maintain student records and assign the appropriate grade for each Co-op student's work term after reviewing the evaluation from the employer. In conjunction with the Co-op Liaison Officer's monitor assessment and the student's periodic reports. 4. Provide research, consultation and support for the activities of the Co-op Liaison Officers in order to facilitate pro-active marketing strategies that will maximize the quantity and quality of employment opportunities for Co-op students. -3- 5. Develop rapport and co-operate with all College stafl~ students and employ- ers; and facilitate discussion/dialogue with Co-op Liaison Officers, Co-op Program Co-ordinators, and Administrators in reviewing co-op eligibility, co- op learning experiences, and co-op progress of students. 6. Organize and participate in projects and the special initiatives of Co-operative Education. 7. Provide, through research and consultation, the advice and viewpoint of Co- op employers regarding currency, relevancy, and furore trends; and contribute to the education objective of the College by assisting in the assessment of College programs through regular communication with academic divisions and advisory committees. 8. Provide statistical and narrative reports and participate in departmental meetings as required. 9. Participate in professional development activities. 10. Participate in the mission objectives of Niagara's Strategic Plan. POSITION DESCRIPTION - CO-OP LIAISON OFFICER The Co-op Liaison Officers are classified as Support Services Officer C. Specifically, Officers liaise, on a year-round basis, with employers, students and counsellors to help facilitate the success of the Co-operative Education process. Accountabilities are as follows: 1. Implement proactive marketing strategies with established and potential employers in businesses, industries, and services within the Niagara Region, Ontario, and Canada, and also internationally when appropriate. 2. Secure program-related, paid empl0~tment opportunities for Co-op students. 3. Develop approved job descriptions and postings, and schedule and confirm employer interviews. 4. Monitor each student's work performance through on-site visits and other communication with employers and students; refer special concerns to the appropriate Co-op Counsellor or College Department. ' 5. Direct the clerical assistance to maintain the systems that expedite the efficient delivery of Co-operative Education. 6. Maintain an employer database. 7. Organize and participate in projects and the special initiatives of Co-operative Education. 8. Provide statistical and narrative reports and 'partidpate in departmental meetings as required. 9. Participate in professional development activities. 10. Participate in the mission objectives of Niagara's Strategic Plan. The Co-op curriculum, in addition to other academic studies by Co-op students, included a course or courses in "the areas of job search, job readiness and job success". Prior to 1992, a non-credit course was offered, taught by the Counsellors. In 1992-93, this was converted to two credit courses, COOP 113 and COOP 213, for a total of two credits. In 1993-94, these were combined into a new course called GENS 150, a three-hour credit course. In addition to these teaching duties, the Counsellors performed academic counselling with students, and assigned grades to students for the work term performance. These functions, clearly, are all within the academic bargaining unit. The position description for the Co-op Liaison Officer was formalized after 1992. During the 1994-95 academic year, a new position description form (PDF) was prepared for the Co- op Liaison Officer position for the purposes ofciassification under the Support Staff'Job Evaluation system, reflecting changes made at that time. That document crystali?e,s, as well as can be done, the duties of the Co-op Liaison Officer immediately before the changes which resulted in the grievance. -5- In that document, the duties and responsibilities of the position were set out as follows: B. DUTIES AND RESPONSIBILITIES 1.01 Market Niagara College Co-op students. 1.1 Implements pro-active marketing strategies of College Co-op with established and potential employers in businesses, industries, and services within the Niagara Region, Ontario, Canada, and also internationally when appropriate. 1.2 Before each work term and based on information collected and organized by Co-op Counsellors, reviews student needs and employ- ment conditions/restrictions. 1.3 Identifies and lists, through an action plan (for each work-term), potential employers that may provide program-related work experi- ences. 1.4 Identifies potential referral sources (employers, other college employer-based programs, faculty, associations, and trade publica- tions) for employers identified in action plan. 1.5 Liaises with other college staff to determine opportunities, contact names, and information about potential suitable employers. 1.6 Annually updates promotional materials to reflect changes in students abilities, knowledge and skills. 1.7 Lialses with Co-op employers to encourage support such as guest speakers, tours and active participation in Co-op classroom activities. 1.8 Promotes the College, and more specifically, Co-operative education and career services, by making formal presentations to business and industrial groups and service clubs.: 1.9 Participation in trade shows and external professional organizations aligned with program responsibilities. 1.10 Meets with students 'on individual basis to assist with special job search concerns and provide information pertaining to Co-op -6- placements. 1.11 Conduct presentations to Co-op classes to clarify/discuss placement related issues. 2.0 Secures program-related, paid employment oppommifies for Co-op students. 2.1 Applies pro-active sales techniques (through mail, telephone and personal visits to employers) to acquire Co-op job for students. 2.2 Visits and assists employers to evaluate present and future human resources requirements and particularly to generate appropriate Co-op jobs. 2.3 Provides general funding information to employers. 2.4 Develops or reviews job descriptions provided by employers. Assess job description to determine if suitable for program requirements. 2.5 Posts job vacancies. 2.6 Schedules and confirms employer interviews. 2'.7 Confirms Co-op employment arrangements and procedures with students and employers. 3.0 Monitors and evaluates the student' s work performance through on-site visits and other communication with employer and students. 3.1 Visits all Co-op students and supervisors at their place of employment once every work term with the exception of remote geographical locations that are handled by telephone, to monitor the student's learning and work performance in the field with regard to quality and effectiveness. 3.2 Mediates between employers and Co-op students when necessary. 3.3 Discusses performance concerns with student as required. 3.4 Reviews mid-term report submitted by students. Checks for completeness, quality of work placement and troubleshoots concerns students indicate on report. -7- 3.5 Reviews Employer Evaluation of student submitted by the employer at the end of the work placement. Checks for completeness and hours worked and follows up with student when requested. Also follows up with employers who indicate they will hire students in the future and with those employers who indicate concerns about the student or the program. 3.6 Assigns a work term grade of S (Satisfactory), U (Unsatisfactory) or INC (incomplete), for each student based on completion of mid term report, employer evaluation, and hours worked. 4.0 Promote College and Co-operative Education Image 4.1 Participate in developing Department and specific program objectives on a yearly basis. 4.2 Set and meet job-related objectives annually, through individual meeting with the Manager. 4.3 Maintain records. Completes transmittals, job sheets, site-visit reports, employer activity, student activity sheets and student inquiry forms. Assigns to designated clerical staff; any correspondence to be typed or filed. 4.4 Maintain positive client relations. 4.5 Identify (through performance appraisal) and develop personal sldlls through professional development. 4.6 Promote institutional awareness and encourage support through regular communication with program co-ordinators and college staff. 4.7 Organize and participate in projects and the special initiatives of Co- operative Education. 4.8 Review work term statistical and narrative reports for accuracy and completeness. 4.9 Collect, document and report general information and feedback fi-om employers and students through site visits, telephone and fax, that will assist program co-ordinators in decision-making re: program delivery. -8- 4.10 May develop and co-ordinate exchange of students on international placements with government agencies and international education institutions and employers. 4.11 Attend and participate in Advisory Committee Meetings. 5.0' Performs other duties as assigned. During the period when this position description was developed, there were four Counsellors and four Co-op Liaison Officers in the department. Generally, the responsibility for delivering the Co-op program was divided between the academic functions of teaching the credit course, evaluation, and counselling students to provide direction and motivation, assigned to the Counsellors, and the administrative aspects of developing Co-op placements, matching students to placements, conducting site visits, and enmring the successful operation of the Co-op program, duties which were assigned to the Liaison Officers. In July 1993, Mr. Leo Tiberi had become manager of the department. He testified that he found general dissatisfaction among other academic departments and students with the operation of the Co-op program, and set about analyzing the structure and operation of the department. In particular, Mr. Tiberi was concerned about confusion over the lines of communication between students and the department, confusion resulting from blurred definitions of responsibilities between the Counsellors and the Liaison Officers. It was in the course of attempting to clarify these lines of communication that Mr. Tiberi had prepared the position description form quoted above. Nevertheless, in time Mr. Tiberi came to doubt the value of the underlying philosophy in the department. Until this point, the department had aimed at providing motivational and empowerment services for the students, mostly delivered by the Counsellors, in addition to -9- employment facilitation services to secure Co-op placements, mostly provided by the Liaison Officers. Mr. Tiberi concluded, and the College accepted, that the motivational and empowerment aspects were less successful than had been hoped, and that it would be appropriate to make a definite change in direction in the overall philosophy of the department to become a kind of employment agency, focused on job development and employment experience. As a part of this new orientation, all counselling services were to be moved fi.om the Co-op program into the College's central Counselling Service. The Co-op Counsellor classification was made redundant, and the Liaison Officer position was renamed Co-op Consultant and the core duties were modified to reflect the new rule of these individuals. To identify this change in orientation, the department was renamed as the Department of Employment Services, and a campaign to make Co-op employers aware of the changes was undertaken. The new PDF developed for the Co-op Consultant position is remarkably similar to the Co-op Liaison Officer PDF quoted above. The substantive changes may be quickly set out. Under heading 1.0, clauses 1.2 and 1.6 were changed as follows, and clauses 1.10 and 1.11 were deleted: 1.2 Before each work term and based on information collected through Student Registration forms and individual meetings, reviews students needs and employment preferences/restrictions. 1.6 Annually updates promotional materials to reflect changes in students abilities, knowledge and skills and changes in program content. -10- Under the heading 3.0, the following changes appear: 3.6 Reviews Final Work Term Report submitted by students, for completeness. 3.7 Assigns a work term grade of S (satisfactory), U (unsatisfactory) or INC (incomplete), for each student based on completion of mid term report, employer evaluation, final work term report and hours worked. 3.8 Refers special student concerns to appropriate College Counsellors or other College Departments. The most important substantive changes are found in new headings 5.0 and 6.0. Those are as follows: 5.0 Provides individual assistance to co-op students in the area of career planning and development. 5.1 Meets with co-op students on an individual basis to review employ- ment needs and related issues. 5.2 Updates student file as required. 5.3 Provides general information to co-op students who wish to explore self-employment opportunities. 5.4 Refers students to other related agencies/groups when required. 6.0 Facilitates group sessions with co-op students. 6.1 Through a classroom setting, demonstrates, explains and provides information to students in the areas of co-op policy and procedures, self-assessment (using True Colours), occupational awareness, resume and cover letter development, interview techniques, job search techniques, and general techniques to be successful in the workplace. 6.2 Assigns a numeric grade for students participating in the co-op class. Students submit assignments directly applicable to the co-op job search process (information interview, resume, cover letter, co-op -Il- policy/procedure and objectives). Evaluation criteria is dearly spelled out on a checklist for each exercise. It will be seen that the thrust of the Co-op Consultant PDF is to concentrate the administrative responsibility for the Co-op programs in the support staffbargalning unit position, and to transfer duties properly belonging in the academic bargaining unit to other departments where they can be handled by academic employees, or to transform them so that they lose their academic nature. In this latter respect, it is interesting to see what occurred to the course credits attached to the Co-op program when the department was reorganized. As already described, originally, the Co-op curriculum consisted of two courses, COOP 113 and COOP 213. In 1994, those were combined into a new three credit course, GENS 150. This course was developed to respond to the Colleges Standards and Accreditation Committee (CSAC) of the l~nis~ of Education, which required a general education course in each academic term for all students. GENS 150 was developed to meet this requirement and to subsume the Co-op curriculum which had already existed. When the department was reorganized, GENS 150 was replaced by GENS 161. This course did not meet the 1Vftnistry of Education CSAC criteria. While it had one credit assigned to it, Mr. Tiberi testified that this was for the purpose only of getting the students to attend class and participate in the program. This course was, from the autumn of 1995, delivered by the Co-op Consultants. There was ample evidence from the Union to demonstrate, and we accept, that many of the duties now assigned to the Co-op Consultant were formerly done, at least in part, by the Co-op -12- Counsellors in the academic bargaining unit. But performance of duties by a member of the academic bargaining unit does not make them academic duties, and it is not uncommon that a range of duties will be shared between members of the two bargaining units. The legal test for whether a particular position falls within one bargaining unit or the other has been long established. Re Ontario Public Service Employees Union and Fcmshctwe College, Ontario Labour Relations Board File No. 1668-83-M, September 19, 1984, dealt with the bargaining unit status of a Co-op Liaison Officer 1I, a position which had many duties in common with the position before us. The following excerpts from that decision are of interest: 5. The Board has adopted a two-stage approach in determining a person's status under the Act. The first step involves determining in which bargaining unit the person should be placed if found to be an employee. The second step is to determine whether the person in question is in one, or more, of the categories expressly excluded from the relevant schedule. 6. IfBlay is to be included in the academic bargaining unit described in Schedule 1, he must be found, on the evidence before the Board, to be either 'a teacher, a counsellor or a librarian. The evidence dearly establishes that Blay is neither a teacher nor a librarian. There is evidence, however, that he does have contact with students and does give them advice with respect to the cooperative programme and the preparation of resumes for presentation to prospective employers. He also advises students in order to help them prepare for job interviews. The evidence of Blay is that he had been a teacher at Fanshawe College but said he would have to distinguish "very much" between what he did as a teacher and what he does as a Co-op Liaison Officer H. In the latter occupation he is engaged in preparation of students basically for the reality of going out to work. The evidence of Blay is that while he imparts certain practical knowledge to the students, his role is different to that of teaching because his job is to promote co-operative programmes to employers and to students. He sees his job to be a marketing function and completely different to the teaching function. The job takes the Co-op Liaison Officer outside the College in order to enable him to promote the programme with the employers. 7. It is the view of the Board that the word "counsellor" set out in Schedule 1 "secures its particular context fi'om being lumped together with 'teachers and -13- librarians' all of whom are in direct functional contact with students and therefore comprise a bargaining unit constituting 'the academic staff'" (Ontario Public Service Employees' Union and The Board of Governors of Algonquin College, (1977) OLRB Rep. May 257). In our view the marketing of cooperative programmes to students and employers does not fit into the academic context in which the word "counsellor" appears in Schedule 1 together with "teachers and librarians". The nature of the advice given is related to the techniques of job seeking and placement rather than to the academic matters dealt with by teachers, counsellors and librarians. In the result, the Board finds that the Co-op Liaison Officer would not fall into the academic unit if he were found to be an employee, but that he would be properly included in the support staff bargaining unit provided he does not fall within the exclusions set out in Schedule 2. To whatever extent the Union argument hangs on the lingering aspects of counselling which it seeks to attach to the Co-op Consultant job, we think that this case adequately disposes of that argument. Whatever academic counselling is required by Co-op students has been delegated to the College Counselling Service, and the PDF instructs Co-op Consultants to refer any such counselling needs to that office. We are satisfied, on all of the evidence before us, that the fact that administrative duties were previously shared between Co-op Counsellors and Co-op Liaison Officers does not render those duties work of the academic bargaining unit, and that whatever advice and direction is given by Co-op consultants does not constitute counselling within the academic bargaining unit. The largest issue, in our view, is the assignment of a credit course to the Co-op Consultants for delivery to the students. While this reassignment of what the Union claims are teaching duties causes us considerable concern, we observe that the arbitral jurisprudence under this collective agreement is to the effect that not every assignment involving student contact will constitute teaching within the academic bargaining unit. In Re Fanshawe College and Ontario Public Service Employees' Union, -14- Union Grievance 87V30, December 23, 1988 (Samuels), the following distinction is drawn: The collective agreement speaks of the "teacher" as an "academic employee". This means that a"teacher" is engaged in an"academic" activity. In other words, the definition of"teacher" involves a consideration of both the type of conduct engaged in (organization of material, preparation of material, imparting information, evaluation of performance) and the subject-matter over which this conduct is exercised. The subject-matter must be "academic". It is not possible to define precisely the dividing line between an "academic" course and a body of information which is less than"academic". At the most, one can define "academic" in a conceptual fashion. "Academic" subject-matter involves a certain degree of breadth and complexity. The word "academic" comes from "academy". As the Oxford English Dictionary tells us, the original "Academy" was a garden near Athens where Plato taught. From this developed the general meaning of"A place where the arts and sciences are taught; an institution for the study of higher learning". Obviously, we must interpret the word "academic" in the collective agreement within the community college context. Thus, to be "academic", a course or program of study must involve sufficient breadth and complexity, having regard to the general range of subject-matter in the courses offered within the college. A person is not a "teacher" if, for example, her sole function is to inform people about the physical layout of a college campus. This person may organize maps of the campus, or prepare such maps herself. She may sit in a booth handing out maps and giving people directions, and may go so far as to ask various questions to ensure that the visitor knows where to go. In other words, she would organize and prepare material, impart information, and evaluate performance. But this job could not be characterized as "teaching", because the subject-matter of the exercise is clearly not "academic". In our view, it is here that Ms. Lycett's work fell short. Though Ms. Lycett did engage in the physical activities done by a"teacher" (organization and preparation of material, imparting information, evaluation of performance), the subject-matter of her workshops did not involve sufficient breadth or complexity to be characterized as "academic". She helped the trainees self-assess their interests and abilities by administering various tests. She gave the trainees information about job opportuni- ties. She helped the trainees prepare resumes. She brushed up their skills in applying for jobs and handling job interviews. She discussed job safety and how to keep a job. But all of this together was of limited compass in terms of breadth and complexity. She covered it in fit'teen hours. -15- A similar distinction is drawn in Re Fanshawe College and Ontario Public Service Employees Union, Union Grievance 89,4160, November 28, 1989 (Brant). · Moreover, it is important to observe that, while GENS 161 is the successor course to GENS 150, a course which was taught by academic staffmembers, there are significant differences between the courses, differences which are of both a quantitative and qualitative nature. Qualitatively, a comparison of the course outlines for the two courses indicates a much greater theoretical and analytical component in GENS 150, while GENS 161 is very much a task oriented exercise. Them is also the significant quantitative difference that GENS 150 is a 45 hour three credit course, while GENS 161 is a 15 hour one credit course. Them are also differences, inherent in the two course outlines, in the delivery of the courses. There is much more a sense in the course description of GENS 150 that it must he"taught" than is inherent in the course description for GENS 161, and while lines like this are never easy to draw, GENS 161 certainly seems more apt to presentation by a"demonstrator" or a"technician" than would GENS 150. In the result, while we must express our considerable concern at the assignment of full responsibility for the delivery ora credit course to someone who is not a member of the academic bargaining unit, the circumstances of the present assignment do somewhat mitigate that concern. Without the distinct change in the course content, both quantitative and qualitative, an assignment like this would require much more careful analysis in relation to the terms and conditions of the collective agreement. Finally, however, it is important to observe that placement of a job within one -16- bargaining unit or the other is based upon the core function of the job, and not on ancillary assignments. The distinction drawn in the arbitral jurisprudence is based not on the mere fact of the assignment of some academic bargaining unit duties to someone who would otherwise be in the support staff bargaining unit, but on the quantity of that assignment. In both Re Georgian College and Ontario Public Service Employees Union, Union Grievance 89B533, October 17, 1990 (Carter) and Re Mohawk College of .dpplied Arts and Technology and Ontario Public Service Employees Union, Sweeny Grievances 96C782 and96C783, May 15, 1997 (Howe), the awards collect together and approve the cases which have applied a core function test to the question of bargaining unit jurisdiction, and apply that test to positions remarkably like the one now before us for consideration, only to conclude that someone performing duties similar to the present Co-op Consultant is properly placed, on the basis of the core functions of marketing, public relations and administrative tasks, in the support staff bargaining unit. We are of the view, based on all of the evidence before us, that the same result is appropriate in the present case. The core function of the Co-op Consultant position is clearly within the support staffunit, and the totality of academic functions assigned to the position are not sufficient to over-weigh that determination. Indeed, those academic functions are, in relation to counselling, vestigial. While the academic functions related to the delivery ora credit course have caused us more difficulty, we are of the view that the quantity involved is nowhere near sufficient to bring this job within the academic bargaining Unit. In the result, therefore, the grievance must be denied. -17- DATED AT TORONTO this 26~ day of March, 1998. Ke~airman I concur "David Cameletti" David Cameletfi, College Nomine~ I concur "T. Browes-Bugden" T. Browes-Bugden, Union Nominee