HomeMy WebLinkAboutUnion 96-08-20IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE OF APPLIED ARTS
AND TECHNOLOGY
(College)
AND:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(Union)
IN THE MATTER OF GRIEVANCE:
UNION POLICY GRIEVANCE -FILE NO. 96C008
Re: SUPPORT TEACHING IN TOURISM AND HOSPITALITY
BOARD OF ARBITRATION:
Kevin M. Burkett - Chair
Peter Hetz - Employer Nominee
John McManus - Union Nominee
APPEARANCES FOR THE EMPLOYER:
Robert Atkinson - Counsel
Gail Rozell - Manager, Human Resources
APPEARANCES FOR THE UNION:
P. Ross Wells - Counsel
Gary Fordyce - Chief Steward
Tom Goddard - 1st Vice President
A hearing in this matter was held in London, Ontario on May 29, 1996.
AWARD
The Union grieves in this matter that certain persons in the support staff bargaining
unit are being used to teach in the college's Tourism and Hospitality division in
contravention of the recognition provisions contained in the collective agreement covering
the academic staff. The grievance reads as follows:
Local 110 grieves that Fanshawe College is violating Articles 1, 2, 10, 11,
14, 26 et al of the collective agreement when they use support staff persons
to teach in the Tourism & Hospitality division, and fail to treat this work
as teaching. The persons involved are D. Dolson, P. Chambon, P. Ireland,
B. Goddery and B. Bond.
The Union wants to make it perfectly clear to the College that we are only
grieving the teaching work being performed by these individuals, as it is
work that rightfully belongs to our bargaining unit. We recognize that
some of these individuals are doing other work as well, that rightfully
belongs within the support staff bargaining unit.
As remedy, we seek that the College treat this work as teaching, and at the
same time give preference to the hiring of partial-load and full-time
positions. We also seek full payment, with interest, for all past Union
dues.
It is to be noted at the outset that the Union withdrew its claims under this grievance in
respect ofD. Dolson, P. Chambon, P. Ireland and B. Goddery. Accordingly, the Union
is proceeding only in respect of Ms. B. Bond; a Technician B under the support staff
collective agreement. It is also to be noted at the outset that where the grievance, under
the heading of remedy, speaks to the "hiring of partial-load and full-time (teaching)
positions", the Union made it clear that what it is seeking is to have Ms. Bond paid as
an instructor under the academic collection agreement for the time that she spends
instructing each day. There is no dispute with respect to my authority to hear and
determine this matter.
Ms. Bond, a licensed chef, has worked as a Technician B in the kitchen attached
to the Heliotrope Restaurant since 1982. The Heliotrope Restaurant, located on campus,
serves faculty and staff. Ms. Bond is, in effect, the kitchen manager. She is responsible
for purchasing and receiving food, inventory control, distribution of food to the labs, cost
control and pricing and the reporting of malfunctions in the kitchen equipment. Students
in the Hotel and Restaurant Management programs are assigned to the kitchen in order
to practise in a "live" setting what they have been taught in their food theory and food
preparation courses. In this regard the kitchen can be compared to a laboratory. The
class is broken into four groups of fifteen students, with each group responsible for the
preparation of the lunch on a given day of the week. The Heliotrope is closed for lunch
on Mondays. The students, having received classroom instruction with respect to the
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of questions that she has answered as relating to the type of flour for a particular bread,
certain recipes, the temperature of the water at which yeast is added in making bread,
how one knows if french fries are blanched and how to turn on the deep fryer. Although
Ms. Bond attempts to stay out of the kitchen from 10 a.m. till 1 p.m., so that she can
attend to her ordering/receiving and distributing functions, both she and the professor
share the responsibility of checking the food that is being delivered to the dining room.
After the professor departs at 1 p.m. Ms. Bond coordinates the cleanup. All
stocks and sauces are sent to the stores in ice baths, the deep fryer filter is changed,
utensils are cleaned, foods are marked and labelled and returned to the fridge and all
counters and food preparation surfaces are cleaned, using specified chemicals. It is Ms.
Bond's uncontradicted evidence that she also answers students' questions during the
cleanup. Ms. Bond, although acknowledging ihat the professor is responsible for
evaluating students, testified that at the end of class she and the professor review and rank
the performance of each student. Ms. Bond estimated that she answers five or six student
questions per day and performs approximately fifteen demonstrations a semester (about
one per week). However, she confirmed that she had been told not to answer student
questions or instnlct.
The job description for the support staff Technician B was put into evidence over
the objection of the Union. The Board, in admitting the Technician B job description,
commented that because support staff and academic staff work side by side and are
represented by the same union (albeit under separate collective agreements), it must be
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assumed that the parties put their minds to establishing a demarcation line between the
two bargaining units. It must be further presumed that they did not do so in a vacuum
but rather having regard to the duties and responsibilities of both support staff and
academic staff. We are being asked to make a determination that requires us to identify
the line of demarcation. We ruled, therefore, that the Technician's job description, even
though falling under the support staff collective agreement, is relevant to our inquiry.
The Technician B job description reads, in part as follows:
Summary of Responsibility
Incumbents perform a variety of technical tasks in the maintenance,
operation and demonstration of the College's facilities and equipment.
Training/Technical Skills
Required skills normally acquired through attainment of a two year
Community College diploma, or equivalent. Job duties require the ability
to organize simple statistical information and to understand the elementary
principles of a science or a professional discipline.
Communications
Job duties require communication for the purpose of providing guidance or
technical advice of a detailed or specialized nature, or for the purpose of
explaining various matters by interpreting procedures, policy, or theory.
There may be need to promote participation and understanding and to
secure co-operation in order to respond to problems or situations of a
sensitive nature. Regular involvement with confidential information which
has moderate disclosure implications.
The Instructor class definition, as contained in the academic collective agreement,
reads:
The Instructor classification applies to those teaching positions where the
duties and responsibilities of the incumbent are limited to that portion of the
total spectrum of academic activities related to the provision of instruction
to assigned groups of students through prepared courses of instruction and
according to prescribed instructional formats; and limited to instruction
directed to the acquisition of a manipulative skill or technique; and under
the direction of a professor. Notwithstanding such prescription, the
Instructor is responsible for and has the freedom to provide a learning
environment which makes effective use of the resources provided or
identified, work experience, field trips, etc., and to select suitable learning
materials from those provided or identified to facilitate the attainment by the
students of the educational objectives of the assigned courses.
The Instructor's duties and responsibilities include:
- ensuring student awareness of course objectives, instructional
approach, and evaluation systems;
- carrying out regularly scheduled instruction according to the format
prescribed for the course, including as appropriate, classroom,
laboratory, shop, field, seminar, computer-assisted, individualized
learning, and other instructional techniques;
- tutoring and academic counselling of students in the assigned groups;
evaluating student progress/achievem, ent, assuming responsibility for
the overall assessment of the students' work within the assigned
course, and maintaining records as required; consulting with the
Professors responsible for the courses of instruction on the
effectiveness of the instruction in attaining the stated program
objectives.
In addition, the Instructor may, from time to time, be called upon to contribute to
other activities ancillary to the provision of instruction, such as procurement and control
of instructional supplies and maintenance and control of instructional equipment.
There are three persons who work in the Hospitality and Tourism division who for
a part of their work day are under the academic collective agreement and for the
remainder are under the support staff collective agreement. Mr. Dale Dolson, who
teaches theory in the classroom two hours per week, is paid two hours per day as a
teacher in the dining room and two hours per day as a technician in the dining room
during the four hours that students are assigned there. Messrs. P. Ireland and P.
Chambon are involved with the culinary management program. Mr. Ireland, who teaches
theory, shares the work in connection with preparing the dinner served at the Heliotrope
with Mr. Chambon. They are each paid two hours as a teacher and two hours as a
technician for the time spent with students.
The Union argues that for part of the time Ms. Bond is performing as a teacher
and, therefore, pursuant to the recognition clause under the academic collective agreement
she must be covered by that collective agreement on a part-time basis and paid as an
instructor. The Union asserts that Ms. Bond was permitted to answer questions and
demonstrate as a last resort because the College knew that even though the professor was
absent from the kitchen for part of the time that students were present that it nevertheless
required a teacher. The Union made reference to the examples cited by the grievor in
support of its position that she acted as a teacher. It is submitted that the College knew
that the students sometimes fail to attend the classroom sessions and, therefore, required
instruction by Ms. Bond and that the orientation is not sufficient to allow students to work
in a "live" kitchen without a teacher. We are reminded that the meals that are prepared
have to be eaten by a clientele. While acknowledging that the Technician B job
description encompasses demonstrations, the Union argues that Ms. Bond does more than
demonstrate. We are asked to find that, for the three hours per day (Tuesday to Friday
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inclusive) that are in question, she performed as a teacher within the job requirements of
an instructor under the academic collective agreement.
The College argues that Ms. Bond is performing as a Technician B under the
support staff collective agreement. Reference is made to her responsibility for pricing,
ordering, receiving, distributing and inventorying the food supplies and her general
responsibilities for the operation of the kitchen. It is submitted that, at its best, the Union
position is that by answering up to six student questions a day and performing one
demonstration a week, Ms. Bond, for a discrete part of her day, even though continuing
to be responsible for the Technician B duties referred to above, is performing as an
instructor. The College asserts that within the context of all of her duties and
responsibilities Ms. Bondl even if she is answering up to six student questions a day, is
performing as a Technician B in that a Technician B may be required to demonstrate and
may be required to interact with students in the same manner as she does. We are
referred to Fanshawe College and OPSEU (Grievance #89A160) (November 28, 1989)
unreported ~renO and Fanshawe College and OPSEU (Grievance #87212) (May 9, 1990)
unreported 05reno in support of the position that the degree of interaction between Ms.
Bond and the students working in the kitchen does not make her an instructor falling
within the academic bargaining unit. The College argues in the alternative that even if
Ms. Bond is performing as an instructor for part of her working day, she has been told
not to instruct and at ail material times knew that she was not to instruct. The College
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asks us to find, therefore, that to whatever extent she was acting as an instructor, this
work was not assigned. It is submitted that any question as to whether Ms. Bond is
performing as an instructor cannot be determined on the basis of work that has been
voluntarily assumed.
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 "feet 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 College and Opseu (Grievance 1/89A160) 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 College 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.
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
lO
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 ensuring
student awareness of course objectives, 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.
However, the Union argues that the core function test is not appropriate in
circumstances where the basis of payment (i.e. whether under the academic collective
agreement or under the support staff collective agreement) for certain other employees
is determined by the tasks or functions performed for a particular period within the day
and where the Union is seeking the instructor's rate for only those hours when Ms. Bond
is solely responsible for the students working in the kitchen. Absent the precedent of
allowing three employees to, in effect, work in both bargaining units, the clearest of
language would be required to support such an unusual arrangement. What then is the
effect of the precedent in determining whether the core function test is appropriate in
determining whether a technician who interacts with students in the same manner as Ms.
Bond is properly within the academic bargaining unit for these periods?
In our view the precedent can best be described as a voluntary special arrangement
between the parties under which a technician is acknowledged to be performing an
instructor's duties during certain periods of the d~y and is paid accordingly during these
periods. 'However, there is nothing in the collective agreement to suggest that other than
by voluntary special arrangement an individual might have a foot in each bargaining unit
and there is nothing before us to confirm that the parties have entered into such an
arrangement in respect of Ms. Bond. Indeed, the opposite is true. Absent an express
indication in the collective agreement that such an unusual arrangement may be
contemplated and absent any such arrangement in respect of Ms. Bond, therefore, we are
brought back to the core function test. The core function test, as applied by Arbitrator
Brent, is the best measure for deciding whether an employee is more appropriately in the
academic unit or more appropriately in the support unit when, as here, there are
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overlapping duties and responsibilities. On the facts here the core function test, as we
have already found, causes us to conclude that Ms. Bond is properly within the support
staff bargaining unit.
Alternatively, we have not been satisfied that Ms. Bond performs as an instructor
within the academic bargaining unit even during the specific three hour periods for which
payment as an instructor is sought. Ms. Bond, who is acknowledged to be a diligent,
competent and valued employee of the college, is classified and paid as a Technician B
with responsibility for supplying the kitchens and monitoring the equipment. She is, in
effect, the kitchen manager. In that capacity she is expected to communicate with and
demonstrate for the students. Accordingly because she communicates with and
demonstrates for students does not in and of itself make her an instructor, even in the
absence of the professor. The only evidence {hat would support a finding that she
performs as an instructor is that, in addition to the foregoing, she answers up to six
student questions per day. However, in contrast to those technicians who are paid under
the academic agreement for specified periods, she has been directed not to instruct nor
to answer questions, except as a last resort. Whereas we do not have evidence as to the
full extent of the teaching responsibilities of these other technicians, we do have evidence
with respect to the teaching responsibilities of Ms. Bond. While she may be said to tutor
or counsel students she is not responsible for "ensuring student awareness of course
objectives, instructional approach and evaluation systems" nor is she responsible for.
"evaluating student progress/achievement, (nor)... for the overall assessment of the
13
students' work within the assigned course and maintaining records as required" nor is she
responsible for "carrying out regularly scheduled instruction according to the format
prescribed for the course .... "Any instruction that she gives is at best incidental. At all
times her "kitchen manager" responsibilities continue. Accordingly, even for the periods
that she is alone with students in the kitchen she is not performing as an instructor within
that class definition. Rather she performs as a Technician B with certain limited but
overlapping instructor's functions and has been properly paid.
Having regard to all of the foregoing, this grievance is hereby dismissed.
Dated at Toronto ihis ~/ ~day of August ~~~ _
I c,,m~/dissent "John McManus"
JOHN McMANuS - UNION NOMINEE
I concur/die0ont "Peter Hetz"
PETER HETZ - EMPLOYER NOMINEE