HomeMy WebLinkAboutUnion 87-04-24
t"&..
"
;'J-
i'\
,'_, .I
~
\.( .
.!,J."' ~
;//!. lj L( / /.'1;B '7
, lI1 rvJl )-
IN THE MATTER OF AN ARBITRATION
'~:
FANSHAWE COLLEGE
(Hereinafter referred to as' the College)
AND
\
ONTARIO PUBLIC SERVICE EMPLOYEES ONION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF' A UNION GRIEVANCE (OPSEU FILE 86825)
BOARD OF ARBI'l'RATION:
p,0
Gail Brent
G. I. campbell, College Nominee
Jon MCManus, Union Nominee
APPEARANCES:
FOR THE COLLEGE:
Barry Brown, Counsel
Fred Brill
Peter Myers
FOR THE UNION:
Joanne Miko,
Grievance-Classification
Officer
President Local 110
Chief Steward Local 110
'Paddy Musson,
'Gary Fordyce,
Hearing held in London, Ontario on February 10, 1987.
Last submissions received on February 17th and 25th, 1~87.
DECISION
The 'grievance before us (Ex. 1) is dated February 19, 1986 and
alleges that Coop students hired to work in the CAD/CAM lab were
performing teaching functions and should be recognized as part of the
academic employees' bargaining unit wi~h all that that implies. Neither
party raised any preliminary obJections concerning the arbitrability of
the grievanc~ or the board's jurisdiction to hear and determine it.
The duties of position in question arE7 set out in a "Support Staff
f
Posi tion 9uideline" for a "Technician I (Temporary) II (Ex. 5). The
1
primary job function is shown as "Provision of technological assistance
for the CAD/CAM Lab" and the duties are listed as follows:
1.
Introduce students to the operational
procedures used within the CAD/CAM Lab.
-,
,
2. Hand out assignment and/or other information
to students provided by faculty.
'3. Assist students in resolving difficulties
encountered while wo~king on terminals.
4. Direct all inquiries from outside and faculty
to CAD/CAM Co-ordinator.
5. Assist users in use of application software.
G. -BooL Lhe---e1\-tt---s'ystem ClL\;hive user frr-e-s-and
restore from archive volume if necessary.
7. Document all unresolved hardware and software
problems.
8.
Control plot and print queues.
9-.
Maintain student attendance records and
collect completed assignments.
10. Schedule students to free time slots.
11. Maintain printer and plotter supplies.
12. Maintain the plotter and hard copy units.
No percentage breakdown of the time devoted to the duties is given
on the sheet._
The CAD/CAM Lab in question is a computer' lab which containS the
hardware On which the sophisticated software used in connection with the
computer aided design and computer aided manufacturing instruction.
There-are four graphic and five non-graphic terminal~, and between four
and eight students can be in the lab at any one time. Students take one
hour in the classroom and one hour in the lab. Teaching masters are
assigned to the classroom hour. Generally speaking, teaching masters
are not assigned to the lab, although there was evidence that one of the
2
I.
rl
\. .'
8
(j,.
c )
..........-. '
R
teaching masters whose students worked on the non-graphic terminals was
often in the lab when his students were there. The only personnel
regularly assigned to the lab are those whose job is described in'the
above position gui.deline (Ex. 5). At the time of the grievance the
positions were being filled by Coop students during their work term.
The only evidence which we had from someone who had actually done
the job in question was given by Ms. Teresa Elliott, who performed the
Job full-time during her work term as a Coop student between August and
December, 1985. She was hired for the job through .the Coop Placement
Office upon applying for it.
She testified that she spent the firs,t week on the job going
through the student exercises which she had not done to ensure that she
could do them so that she could help the students do them properly and
explain what went wrong, if needed. Students buy material which is.
prepared by teaching masters. Exhibit 8 is an example of the sort of
instructional notes and exercises prepared for the students.
The supervisor of the lab was Mr., Kumar Konanur, a teaching mast'er
in the College. There were three teaching masters, . including
Mr. Konanur, t'eaching courses for which the CAD/CAM Lab was used.
Ms. Elliott testified that one of the teaching masters, Mr. Brown, asked
her to help his students as much as ;;he could by answering their
questions in the lab, that Mr. Sellick, another teaching,master, asked
her to help the s,tudents if. they had problems, and that Mr. Konanur did
not explain to her exactly what her duties were and at sometimes would
tell her to help students and sometimes not to help them. She said that
she learned her job function from observing the CAD/CAM Lab technicians
who worked in the lab when she was a student.
During the time that Ms. Elliott worked in the lab there were two
3
technicians working. in the lab. There were two shifts which covere_ the
lab between 7:00 a.m. and midnight Monday to Thursday. On Friday the
only shift was from 7:00 a.m. to 4:00 p.m. and on Sunday there was one
shift worked by the person who worked the afternoon shift during the
week. The lab was open to students as scheduled between 7:00 a.m. and
midnight every week day but Friday, when the lab would close to students
at 2:00 p.m. so that back up work could be done by the technician from
2:00 p.m.t.o 4:00 p.m. Overtime was paid for weekend work, and the
technicians worked an average of 40 hours per week (36 hours one week
and 44 the next). The hourly rate was, ~7.00, raised to $7.50 sometime
during the period that Ms. Elliott worked.
With reference to the duties as listed on Exhibit 5, Ms. Elliott's
evidence w,as' as follows (.all numbers refer to the numbers assigned to
1. In the beginning she spent 50% to 70% of her t.i,.me doing this.
l
)
the, duty on Ex. 5):
As students became accustomed to the system less and l.ess time would
have to be. sp'ent doing this and more time would be spent on duty #3.
Ms. Elliott indic9-ted that there are proper operational procedures for
us,ing the pen on the board w:q.ich involve mechanical know how that
students may have to be shown, and also that she had to make sure that
students f0110wed their notes about logging in and understood that they
had tQ log in every time they used the computer.
2. The assignments in ques,tion could be handed out by teaching
masters in class or sent to the lab to be given to the students. For
the mos.t part it would appear the exercises done in the lab were
(
\
contained in the workbooks (such as Ex. 8) which the students purchased.
3. As we understand Ms. Elliptt's evidence, students working on
CJ."
(l
their exercises could be puzzled by what they saw (or did not see>" on
4
the graphic terminal screen. She said that when this occurred she would
explain to ,them about co-ordinates, planes and the scale of what was
being seen, as opposed to what was being designed so that they could do
their design exercise.
4. Ms. Elliott said that she could not recall doing this and that
she was told that if anyone made inq,uiries to send them to Mr. Konanur.
5. Ms. Elliott seemed in her evidence to equate this with duty
#3.
6. Ms. Elliott said that every Friday afternoon for two hours the
arc hi v e prepar at i o ll-w-as-b-e-i-n-g-d.on e. I-E-a-n~~-eve-r---h-a-ppen-e-d-t-1)-the
disk containing the student~' work done'during the week, the back-up was
prepared so that the work would not be lost.
(Y.
J 1
7. Ms. Elliott said that she never documented anything but w(:lUld
make verbal reports of problems to Mr. Konanur. She also said that in
the half-hour during which the shifts overlapped the two technicians
would discuss any problems encountered. She said that some of the
problems encountered could be fixed by them, but if they could not fix
something there was no one in the College who could, and the Colle.ge had
a service contract with the manufacturer to cover those instances.
8. Ms. Elliott ex~lained that all requests for plotting or
printing would be sent through the cO}llputer to the plotter orprinter
and that suCh requests would be placed in a queue. The technician
controlled the queues' and could stop them during peak times, so that the
system would not be slowed up, and restart them at midnight. She said
that any problems they had in relation to system management would be
referred either to Mr. Konanur or the computing centre.
s
9. Ms. Elliott testified that she did this by checking to ensure
tha t the student assigned to' the hour was. the one who s'howed up, by
5
making a mark to show the student was there, and by checking off the
student's name in a book for an assignment handed in in the lab. She
said that the completed assignments were placed in an envelope for the
teaching master to collect.
She also testified that she acted as a monitor for a final
exam held in December and that her duties then ~ere to answer questions
about the exam and to ensure that there was no cheating. At some time
during her employment she also marked a true/false test for a first year
cours~ The answer sheet was provided to her by the instructor who set
the test, and she was. not required to record the marks.
10.
Ms. Ellioft testified that she did this.
Students could
request additional time in the lab during those periods when space was
available and they would book this time with the techniciah.
11. Ms. Elliott said that she was not sure if she did this. She
il
\.." ,.
said that she did not order supplies and that she would place printer
paper in the box after removing the plastic wrap.
12. Ms. Elliott said that the hardcopy unit had to be cleaned up ('
and that she left this to. tbe person who worked Saturdays.
It was Ms. Elliott's assessment that 80 to 90% of her time on the
job was spent performing duties 1, 3 ,and S.
The evidence was that the classroom hour spent by the student
usually covered what the student had to do during the lab hour.
Material is covered in c.lass and the student instructed how to
accomplish the exercise in the course material. The course material,
such as Ex. 8, contains step by step instructions which, if followed
correctly, will create the design. If the student does not follow the
p
-. )
instruction~ correctly the student will know imm.ediately because the
screen will not correspond to the screen shown in the exercise.
6
.'
Ms. Elliott agreed that students were supposed to prepare for the
labs before coming for the hour and that the hour of lab time is very
expensive. She said that most of the students she encountered prepared
for the lab and that most of them also came in and asked for help and
advice. She said that she has never known a student who went through
the exercises without asking a question. She indicated that she thought
that answering questions was part of her job and that she resolved the
issue of answering questions for herself by deciding that she would
answer certain questions. She testified that she never went to anyone
.~___~~kom m anagemen:t--to-seek--cJ.a-r-4f-i-ea-t-i-en-a-s----t-o---wheth-e"40r-no t she shoui-d be
answering questions.
As noted before, the equipment in the lab is very expensive.
)
..-J
Because of this the security of the lab is very important, and the
technician is entrusted with the duty of ensuring that only authorized
people are in the lab.
The technician has no responsibility for the design of the courses
which use the lab or for designing course objectives. Ms. Elliott also
testified that she never had to pr.epare lessons to deliver in the lab.
She was asked by two instructors to look at their exercises to ensure
that they were error free and. would .run.
The board also heard evidence concerning how other computer labs
are run, specifically in Management Studies. The courses examined
involved either two hours of class time and three hours of labs, one.
hour of class time and three hours of labs, or fbur hours of class time
and sixteen hours of labs. Each lab was conducted in one section of a
9)
large computer lab with each student using a personal comput.ex:. The
teaching master was present. in the lab with his students at all times.
7
There was a technician in the lab who was in control of the entire lab;
however, he/she was only called on to deal with what may be called
"mechanical" problems with the hardware.
The teaching master in question, Mr. Richardson, testified that
while in the. lab it is his responsibility to teach and to consult with
students. The courses which he teaches are all either programming
courses or involve using application software, and the hours that he is
scheduled to be in the labs are regarded as teaching hours. for the
purpose of ascertaining contact hours. He said that the students in his
courses may work in the lab in their free time and may ask the
teohnician questions then but that this was not normally done.
Mr. Richardson was asked to examine the job description (Ex. 5) and
indicate which of those things he would do. His answers are outlined
1.
Mr. Richardson said that he would do this with his classes in
i)
\. -)
\,
below:
a fairly intense period at the beginning of his courses. He estimated
that it took 80% of his time in the first few weeks and that after that
he talked about the software with. his students.
2. Mr. Richardson said that he would do this.
3. Mr. Richardson said that he would do this with each new
technique used in connection with a software package. He indicated that
his main purpos.e was to deal with the problems which the students had
and that those problems ran from the simplest to the more sophisticated
such as debugging programs. He said that in each lab he lectured for
about 15 or 20 minutes if at all and then spent the majority of his time
answering questions and consulting on assignments and case studies.
5.
Mr. Richardson testified that he does this.
R
4.
Mr. 'Richardson said that he does this.
8
(j,
';' )
~
n
o. Mr. Richardson explained that in the section of the lab where
he works there are sixteen terminals hooked up to a main computer and
that he organizes the files he needs for the course. He said that the
technician boots the system and also does back-ups once a month.
7. Mr. Richardson said that he does not do this and instructs the
technician to record problems.
8. Mr. Richardson said the technician does this.
9. Mr. Richardson said that depending on the course he mayor may
not take attendance and that he collects assignments.
--------Mr----R.ichardsoll--indj.-eaud---tha-t--he--di-d--n~t___de_=_afl_y~----e.ut4es-~r--ed--
10, 11, and 12 on Exhibit S.
The students in the courses taught by Mr. Richardson do not follow
a step by step guide. They are being taught to solve business problems
by using application software or by developing programs. Mr. Richardson
said that he prepared the lessons in advance for use in the labs.
Mr. Brill, the Chairman of the Technology Division in which the
CAD/CAM courses and lab are found also testified. He indicated that
given the expense involved in setting up and maintaining the lab it is
essential that the hour of lab time is not wasted. He said that the
courses are designed to have one hour of classroom time for every hour
of lab time and that the class time is used to cover the material which
is later done in the lab. He indicated that the instructional model is
designed with the assumption that there will be no instruction about
course content in the labs. He confirmed .that the students are expected
to prepare their material before coming to the lab and that they are
expected to be fully prepared when they come to the lab so that they can
make the most productive use of the hour.
J
9
students are issued instructions (Ex. 10) which state, in part,
that "Students who do not complete their lab notes will not be given
assistance by supervising technicians."
Mr. Brill testified that the Coop students hired as technicians are
not qualified to teach and that they are not assigned teaching by the
College.
He described the primary function of the technicians as
ensuring the orderly coming and going of students, handling problems
with the system if students crash the system, ensuring that students are
on the terminals at the beginning of the hour and off them at the end,
ensuring that no more than one student is on a terminal, ensuring that
the right pack is on the computer, looking after queues, changing pens
on the plotter, making sure paper is available, taking attendance,
scheduling time, doing routine maintenance and back up, checking pens to
see that they are working properly, contacting someone if something goes
-j
.. \
wrong, and shutting down the system and rescheduling if something goes
wron~ He said that it is not part of the technician's duties to answer
student questions about the course content in the lab notes and that it
is the instructor's duty to handle those questions.
Mr. Brill said that there are times when the technician is expected
to answer questions. He indicated that an electronic pen is used to do
most of the work and that students will often get unexpected results if
they use the pen improperly. Mr. Brill said that the technician should
be able to get the student back to the point before the error occurred
and to tell the student what went wron~
He indicated that the
technician is not expected to work .with the student on course content or
to explain course material to the students. He also testified that the
technician is not expected to do any marking for the course.
l As the part;ies. a.greed, the central .is:$'U'eco''I;1;l!)I;be determ
R
10
<whether the CAD/CAM lab technician is a teacher and a member of the
~'i;i~,ga:if.l.;i,:n,g~~;Lt as set out in Article 1.01 of the collective agreement.
The Union argued that the technician should be regarded as a teacher
since Article 1.01 defines what is not a teacher and the Colleges
Collective Bargaining ~ defines the academic bargaining unit, and none
of the exceptions COVer the Coop student position which 'is the subject
of this dispute. In the alternative it argued that the work being done
is teaching and that evidence of management expectations cannot be
preferred to evidence of what is actually done and the comparisons with
-~~---the-WOrk-don,e---by---teachi-n-g-ma-s~-eEs---i-n--l-abs-.----r-t-poi.-nted-out t.hcl t there is
recognition in the current collective agreement that contact hours can
be based on interact;i.on with students involved in selflearning packages.
. .c)--)
Til:ti" College argued,. th.at' th~ reco9riitionclause in this collective,'-
. . " .-.
a~re'ement covers specific employees and that to determine whether anyone
is in the bargaining unit is necessary to decida that the definition of
t:he inc,luded group is met. It said that while helping students wi t;h
'I-
prohlams, may .a:rgual:lly be teaching 1llie core funetion - ()f the posi tian is ,
n'qt, teaching.; I'1i:;a-lso Subm\i.tted that an employee cannot alter his/her
OWn cl.assificatio1;l byas~~ming duties beyon-d those required by the
CPlleg.e and that the CQop students are neither required nor expected to
te-a\ch. Its position was that Ms. Elliott decided on her own to advise
students and that the evidence of the activities of the other teaching
!
master in the computer lab is not relevant since the course is radically
different than the CAD/CAM courses.
R
It wa~also disputed whether, if Ms. Elliott were teaching, it
would be on a sessional appointment and thereby excluded from thel
bargaining unit.
1 1
The parties referred us to the following cases: The Windsor Roman
Catholic Separate School Board and Ontario Public Service Employees
Union, (1986) unreported (Beatty); Fanshawe college and Ontario Public
Service Union, (1980) unreported (Rayner); Seneca College and Ontario
Public Service Union, (1984) unreported (Brent); Fanshawe College and
Ontario Public Service Union, (1984) unreported (Delisle); Seneca
College and Ontario Public Service Union, (1983) unreported (Brent); Re
Irwin Toy Ltd. and United Steelworkers (1982), 6 L.A.C.(3d) 328
(Burkett); and Fanshawe College and Ontario Public Service Union, (1986)
unreported (Samuels).
We agree with the College's position that the analysis in the
Windsor Roman Catholic Separate School Board decision does not apply in
this case.
There the parties had agree'd upon an "all employees"
bargaining unit and the board of arbitration only had to consider
(-~
whether the employee concerned filled a position which came within the
exceptions set out in the recognition clause. In this case both the
collective agreement and the Colleges Collective Bargaining Act make it
clear that there is a distinction to be drawn between employees in the
acacemic bargaining unit and those in the support staff bargaining unit.
As a consequence, the recognition clause in the agreement, Article 1.01,
is one which clearly indicates that to fall within the unit one must be
within the group of "academic employees ... engaged as teachers
counsellors and librarians".
All of the cases cited to us which dealt with teaching hours
'''', ~
recognized implicitly if not expli~itly tbat a tea,cher is s()meone whose
g.rim~ry or core functi.on is teaclling.; We do not consider that there has
been any fundamental disagreement about that among the arbitrators who
8'.'"
..
J
l
have considered what teaching is in the context of trying to determine
12
\)"')
R
, ~ .
"
whether someone, who is agreed to be a teacher, is engaged in a teaching
hour. ;tit1~t7E!'Y:i!r'~$~ at~~clferinay he or do, her/hls prjjne function is
to be the hl.lman in'st~ume'nt of inst:biction rela:€ihg to the course
QttrriculUJ1l which has been determined by the COllege.
In the case before us the evidence indicates that it was never th~
College's intention that the technician deliver instruction. The
instructions given to the students (Ex~ 10) indicate that they are not
to get assistance from the technicians. On the other hand, the evidence
also shows that Ms. Elliott did give assistance with course content and
did a naw-er----q.uesti~s--r...e.gar--d4nq--eeur-se---ean.-een-t. It .a~-so-shows~that-she.--.~~
was asked by instructors to mark a test and to supervi~e a test.
Further, it would appear that she was given conflicting instructio~s
from the course instructors, all of whom were presumably members of the
academic bargaining unit, about answering student questions and that she
never sought clarification from management about her role but determined
on her own what she should do.
'_':t:hae.:Vi.;d~f1:c-ellC(d:$clt(l)w:n.th~t' the intent of the CQllege was to, .
Af",.,;>"'.:' .'. ..':"":' "'.. i" ....,. .
,~~-t~!, ~41 e-~j;1.o~1!;~f'l.J{~~~'t:ab;wh!6wout4-))e,.'therefo 'de if 1 with stlU!'eht j
~f9~let11.. iitPeJ:~-t:to:ti:tO~h.c~-.se content, then' it i$:likeiy tb~~.shch ,
~y~~_~*,~C'~1l;t~'~~;(~'P,h:J;,t.fiQi~):'e4 ttl be' a tea~hef t It is acknowlegg,g in
arb~tral Jursiprudence that an employee who exceeds 'the requirements of
"'Is
the job without the authority of management cannot c!!lim
reclassification as a result. There is no evidence in this case that
.".
any member of management directed Ms. Elliott or any other technician to
assist stucients with any matter other than the "mechanics" of using the
," < ~"iI;".
terminals.
;1~~"(~
We do not believe that we can conclude simply because other c9.~ses
,. \,I'~
13
where there are computer labs utilize teaching masters in the labs that
all computer labs must have teaching masters present or that the
employee who is present in the lab is a teaching master. Courses are
constructed differently and have different aims. If a teaching master
constructs a course which depends upon a student doing work on his/her
own after receiving detailed instructions in class and with step by step
instructions in the course material, then the time when the student is
expected to do the exercises on his/her own without instructional
assistance is surely not teaching time, even though it must occur in a
comput.er lab with a College employee present.
Simply because teaching masters may do some of the things which
appear on the job description (Ex. 5) as duties ancillary to their
teaching function does not necessarily make those duties teaching. We
can see nothing in handing out assignments, taking attendance,
-)
~ -~
collecting assignments, directing inquiries, etc. which is fundamentally
teaching, as opposed to ancillary duties which teachers mayor may not
do in the course of their work. So long as the duties of the technician
--. - -
in connection wit th.~-' lab and
C{~nSl:Yng stuaem:s ~s con:t~neC1'fi)t1ie .use....of the equipment found in t~e
lll:b :~~~h~an ~o th;resol~ion of-:-problems with the course content
then, even though th
assis
to
use the equipment, it. is the sort of instruction which is not
-
inconsistent with a technician's du~ies in relation to safeguarding and
-
maintaining the equipment found in the lab.
The problem in this case would seem to be that the College did not
take care to instruct Ms. Elliott about the proper scope of her duties.
-
R
. .I
If the College's intent and expectations are not clearly articulated to
the employee concerned and to teaching masters in the bargaining unit.
14
-;
\ ')
R
"
who may work with the employee, then the employee cannot be expected to
meet those expectations. Here
ave taken care to
-
delineate responsibilities both to the teaching masters who were sending
students to the la~ and to the technicians employed in the lab. It may
-
be that (1) if the College, knowing that confusion existed when Ms.
Elliott performed the job, ignores the confusion which may still exist
in the minds of the students, teaching masters and technicians about the
proper and appropriate role of the technician and (2) if the technician
continues to deal with student problems with course content, then the
College could be leav~-J; open -t--a--a--H-nd-i-ftg"~o-re--functi:on---
of the technician job is teaching. In the situation before us, thou'gh,
particularly in view of the fact that there was no authorization or
i,nstruction by the management of the College to do any instruction
relating to course content, it is concluded that the technician in
question is not part of the academic bargaining unit.
For all of the reasons set out above, the grievance. is dismissed.
DATED AT LONDON, ONTARIO THIS ,< t.{Ift"I DAY OF ~ ,1987.
~.ev:J
~
Gail Brent
I concur / a~ AL
If lJl C~ h Jt,
G. I. Campbell, College Nominee
t(
I concur / d~6..._~.t
Jon
15