IN THE MATTER OF AN ARBITRATION

BETWEEN

NIAGARA COLLEGE

the CollegeEmployer

and

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

the Union

AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE 02C260

BOARD OF ARBITRATION Paula Knopf ChairJ Campbell Employer NomineeRon Davidson Union Nominee

APPEARANCES

FortheEmployer Brenda Bowlby CounselBarry SharpeJim Garner

For the Union David Wright CounselSherri Rosen

The Hearing of this matter was held in Welland Ontario on October 17 2002and in St Catharines Ontario on September 23 and 30 and October 1 and 232003

AWARD

This grievance alleges that two Instructor positions created and posted in

December 2001 ought to have been posted and classified at the rank of Professor The

grievance refers to a number of courses that are being taught in the Foundation Studies

Program at the College These courses make up the workload of the two positions The

allegation of the Union is that thesecourses have been and should continue to be

taught by someone who is classified as a Professor The courses are in the areas of

computer literacy and mathematics The parties presented extensive evidence

regarding the naturepurpose and details of these courses including course outlinesmaterials and teaching guides Only the essential aspects of the evidence shall be

referred to in this Award

The grievance arose because the Professor who had taught these or

similar courses in the Foundation Studies Program retired suddenly in the summer of

2001 His courses were then assigned on an interim basis to two partial load

Professors Those same two individuals were then hired on afulltime basis as

Instructors They continue to teach the same courses that they had been teaching on a

partial load basis as Professors however they are classified as Instructors The Unionasserts that the positions should be classified at the level of Professor because the

courses and their content have not been substantially changed since they were taught

by a teacher with professorial status The College asserts that the courses have been

revised and are now being taught at such a basic and rudimentary level that they are

appropriately assigned to teachers who are classified as Instructors

This case will be determined in the context of the collective agreement

which contains the following class definitions

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CLASS DEFINITION

PROFESSOR

Under the direction of the senior academic officer of the College ordesignate a Professor is responsible for providing academicleadership and for developing an effective learning environment forstudents This includes

b The teaching of assigned courses including

ensuring student awareness of course objectives approachand evaluation techniques

carrying out regularly scheduled instruction

tutoring and academic counselling of students

providing a learning environment which makes effective useof available resources work experience and field trips

evaluating student progressachievement and assumingresponsibility for the overall assessment of the studentsworkwithinassigned courses

c The provision of academic leadership including

providing guidance to Instructors relative to the Instructorsteaching assignments

participating in the work of curriculum and other consulCativecommittees as requested

INSTRUCTOR

The lnstructQr classification applies to those teaching positions wherethe duties and responsibilities oftheinoumbent are limited to thatportion of the totalslectrum of academic activitiesrelated to the

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provision of instruction to assigned groups of students throughprepared courses of instruction and according to prescribedinstructional formats and limited to instruction directed to theacquisition of a manipulative skill or technique and under the direction6tProfessor Notwithstanding such prescription the Instructor isresponsible for and has the freedom to provide a learning environmentwhich makes effective use of the resources provided or identified workexperience field trips etc and to select suitable learning materialsfrom tlose provided or identified to facilitate the attainment by thestudents of the educational objectives of the assigned courses

The Instructorsduties and responsibilities include

ensuring student awareness ofcourse objectives instructionalapproach and evaluation systerhs

carrying out regularly scheduled instruction according to theformat prescribed for the course including as appropriateclassroom laboratory shop field seminar computerassistedindividualized learning and other instructional techniques

tutoring and academic counselling of students in the assignedgroups

evaluating student progressachievement assumingresponsibility for the overall assessment of the students workwithin the assigned course and maintaining records as requiredconsulting with the Professors responsible for the courses ofinstruction on the effectiveness of the instruction in attaining thestated program objectives

In addition the Instructor may from time to time be called upon tocontribute to other activities ancillary to the provision of instructionsuch as procurement and control of instructional supplies andmaintenance and control of instructional equipment

The evidentiary presentation of this case was interesting in that with

oneexcelgtion neither party called the Instructors who are actually teachinghe

courses or the Coordinators Who are responsible for the courss that are under

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scrutiny Only one witness called by the Union has taught any of the courses and

she has only taught one of them The bulk of the Unionsevidence was presented

by Professors who have previously taught what were said to be the equivalent

courses previously The Collegesevidence was presented through the Dean of the

Division where the courses are being taught The sufficiency and the weight of each

sides evidence were challenged by the opposite party

A Professor who had taught in the Foundation Studies Program for

several years was scheduled to teach several sections entitled CAPL 1440 and

CAPL1498 in the Fall 2001 semester He had also been responsible for teachingCOMP 594 This course has been renUmbered as CAPL 1594 In the summer of

2001 he suddenly announced his retirement The CAPL 1440 course is no longer

being taught and shall not be referred to further in this case The other eourses

were reassigned His courses CAPL 1498 and 1594 must be examined The

other course which will be under scrutiny is Math 1035 Previously numbered Math

035 the course had been taught by a Professor One ofthe Instructor positions

under review in this case is the work of the person who is teaching this course as a

significant portion of his workload

CAPL 1498

This course is entitled computer Applications 1 This is a twocreditcourse offered to students in the Foundation Studies Division Continuing Education

and General Arts and Sciences programs The Course Information Sheet provides

the following oourse description

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COURSE DESCRIPTION

This is an introductory course in computer literacy that provides thestudents with handson comPuter skills ecessary for success in theirColligelrgms Aftertheylbecbme farfiiliaWith WinddS98operating system students will learn how to use email and a Webbrowser They will then use Microsoft Word 2000 to acquire skills inword processing

TYPES OF EVALUATION USED IN THE COURSE AND THEIRWEIGHTS

The final grade will be based on the results of two tests and variousassignments throughout the term The tests will be of the handson type where the student will be given specific tasks to performusing the computer

The specific curriculum objectives by the unit include

PERIODS TOPIC OBJECTIVES

1 Introduction to At the end of this topic the studentthe course should be able to

practice proper lab protocol atthe collegelog on to the network

4 Email the At the end of this topic the studentWorld Wide Web should be able to

go to spedified site on the webfollow links

search for information on thewebuse email

complete inclass assignments

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4 Creating Reports At the end of this topic the studentand tables should be able to

apply styleshide spelling and grammarerrors

create and update a table ofcontents

center a page verticallycreate footnotes

use Document Mapwrap text around graphicscreate a simple tableadd captionssortalist

add headers footers and pagenumbers

print selected pagescomplete the HandsonPractice Exercises

Successful completion of this course is a prerequisite for further computer

application courses at the College Students can be exempted from taking classes

in this course if they successfully complete a skills assessment test in the second

week of classes If they demonstrate sufficient skill they are given credit for the

course

The course is presented through prepared materials It is held in a

computer lab setting wherein the students work thrOugh a series of tutorialsandexercises There is an Instructorsoutline with exercises assignments and answers

provided These materials are available to both the Instructors and the Professors

who teach the course Since the fall of 2001 the course has been taught both byInstructors ProfessorsandCocoordinators Professor Lyn Emmons is one of the

Professorswhoteachthe course Shetestifiedon behalfofthe Unin She

dgscribes the content ofthe course as he teaching of theWind0ws andWord

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systems The Union addressed the caselawsfocus on the elements of cognitive

skills that are taught at the professorial level by Professor Emmons testimony thatthere are cognitive elements of this course She explained that this can be seen

when the students are taught how to organize material through the understanding of

what she describes as the hierarchy of levels of files She also testified that she

teaches the ability to reverse actions or amend procedures when errors are

committed Further she emphasized students are expected to apply styles to

documents and tables and learn how to use the Internet She challenged the

suggestion made in crossexamination that she is teaching simply keyboard or

typing skills Professor Emmons conceded that there coUld be said to be cognitiveelements in almost everything we do including typing or digging a hole Howevershe differentiated digging a hole which she describes as a manipulative skill with

the creation of folders and subfolders in her course which require a sense of

design

The materials available for this course constitute a text with tutorials

that have students work through step by step basic directions about how to use the

Windows and Word systems The texts introduction promises to provide a basic

understanding of computing concepts and to build the skills necessary to ensure that

information technology is an advantage in whatever path the students choose inlife The materials also appear on the students computer screens in the lab settingProfessor Emmons testified that she also provides further and different examplesand instructions beyond what are available in the prescribed materials

Barry Sharpe is the Dean of Foundation Studies and is therefore

responsible for this cQurse He described this course as a tutorial in a lab settingwhere studentsfollowthedireCtions as they appear on their computer screens Fie

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testified that the role of the teacher is to move from student to student as questions

arise and as they progress through the prepared materials All the work is done inclass with no homework assignments He describes this course as being very

basic He Sees the purpose of the course as simply to give the students the hands

on skills that they need to use computers at the College and be familiar with

computers on the job Dean Sharpe testified that as a result of the evolution of the

Windows system the basic computer use that is being taught in this course issimply a manipulative skill akin to typing in the millenium He repeatedlydescribed the courses exercises as point and click He did not dispute Professor

Emmons opinion that there may be some cognitive elements to this course

However Dean Sharpe testified that the cognitive elements were similar to

understanding that a tree has a trunk He said that teaching these types of

cognitive elements does not require much teaching He does not perceive the

course as one imparting problemsolvingsiills but instead seesthecourse as onewhere students are taught where to click and where to type

The Unions evidence established that the College had previouslyoffered an introductory computer literacy course numbered COMP 498 that also

covered the same type of material However Dean Sharpe emphasized that the

Windows 98 and 2000 systemsbeing taught in the current course are more user

friendly than the previous versions of Windows This is one reason why he has

assigned an Instructor to this course whereas in the past COMP 498 was taught by

a Professor In fact Dean Sharpe testified that the current course is different from

COMP 498 because of changes that he instituted to achieve two objectives Firstthe course was redesigned as part of a consolidation of computer literacy courses

frem variousdiisions to be availablefornenoemputerstudents Seeondly hewated a basic tourseatthe literacy levelthawas appropriate for the Windows

environment and the students general needs for computers in college and at a job

Therefore he directed that the CAPL 1498 course be designed to achieve those

ends

CAPL i594

This course is entitled Computer Applications 2 ExcelPowerPoint

CAPL 1498 is a prerequisite for this course The course is offered to a variety of

programs including General Arts and Science Culinary Hotel and Restaurant

Management and Tourism programs

COURSE DESCRIPTION

This is an introductory course in using Microsoft Excel andMicrosoft PowerPoint The Excel portion provides students withintroductory handsonspreadsheet skills including editingworksheets entering values formulas and functions intoworksheets using WhatIfanalysis formatting worksheetsinserting graphics and charts The PowerPoint portion providesstudents with the skills required to create modify format and refineslide presentations

TYPES OF EVALUATION USED IN THIS COURSE AND THEIRWEIGHTS

The final grade will be based on the results of two tests and variousassignments throughout the term The tests will be of the handson type where the student will be given specific tasks to performusing the computer

COURSE GOALS

pon successful completion of tills coursethestudent will beableto use Microsoft Excel and PeWerPointto

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Create and edit data in a worksheet

Make customcharts to illustrate data

Analyze data in a worksheet use WhatIfanalysis and GoalSeek

Create and format slide presentationsModify and refine slide presentations

The specific objectives include

SPECIFIC CURRICULUM OBJECTIVES BY UNIT

TOPIC OBJECTIVES

Creating and Editing At the end of this topic the student should bea Worksheet able to

enter edit and clear cell entriessave close and open workbooks

specify ranges copy and move cell entriesenter formulas and functions

adjust column widthschange cell alignmentformat cells

insert rows

insert and size a ClipArt graphicenter and format a date

preview and print a worksheetcomplete the HandsOnPractice ExerciSes

Modifying and At the end of this topic the student shouldRefining a be able toPresentation

find and replace textselect and change the slide layoutcreate and enhaqce a table

modifyclip art and createatextboxchangethepFesentatiQndesign andcolour scheme

change the slide and title mastershide the title slide footer

duplicate and hide slidescreate and enhance drawing objectsanimate objects and add sound effectsadd transition and build effects

control a slide show

add freehand annotations

create speaker notescheckthe Styledocument the file and print selected slidescomplete the HandsOnPracticeExercises

The Unionsevidence regarding this course was presented byProfessor Emmons However she has never taught CAPL 1594 as such She has

taught a Similar level of Excel and PowerPoint at the College in the past On the

basis of that experience she was asked to review and emment on the course

outline for CAPL 1594 She believes that the course objectives cited above are

pretty well the same as the ones in a course that she taught in 1998 She testified

that many cognitive slills are involved in learning Excel and PowerPoint She

explained that students learn what a cell is and how to use them with formulas

She also feels that there is a fair amount of creativity required in designing slides

and presentations for the PowerPoint program She explained that while there maybe teaching of manipulative slills required in the operation of the programs the

capacity to do it well takes a certain amount of decision making Accordingly she

stressed that there are cognitive elements to this type of course

In response to this evidence Dean Sharpe testified that there is a

significant difference between the course PrQfessor Emmons taught in 1998 and the

currerit cApL 1594Dean SharlepoihtedoutthatwhenProfessorEmmons was

teachingPowerPointndExceltlecourselso included the Access program He

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described the previous course as being more complex and sophisticated than CAPL1594 in that it required students to achieve conceptual understandings It is

because of this that he feels that the previous course went beyond what isappropriate for an Instructor to teach Dean Sharpe stressed that PowerPoint and

Excel now are so improved that they have simply become a point and click

exercise that it is appropriate to be taught by an Instructor He does not believe that

the course currently demands the development of cogitative skills He likens this

course to the skills that are being taught in CAPL 1498

Math 1035

This is a twocredit course taught to students in the Culinary

Management and Chef Training program The course description reads

COURSE DESCRIPTION

This course provides a review of basic math skills rounding numbersfractions decimals percent Skills needed to calculate unitportioncosts and menu prices using formulas and a calculator are developedAll applications are directly related to the Food Service Industry

EVALUATION 3 Tests

COURSE GOALS

1 To review and upgrade basic mathematical skills

2 To apply basics mathematical principles to applicationsrequredin the culinary skills and cookapprerticeshipprograms

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MAJOR TOPICS AND OBJECTIVES

TOPIC 1 ROUNDING NUMBERS EXERCISES

Obiectives

At the end of this topic students should be able to

1 Round off whole and decimal numbers to a

specified place value 11

2 Round off to industry standards 12

3 Perform calculations using decimal numbersand the order of operations 13

4 Solve practical kitchen problems involvingdecimals and rounding 14

TOPIC 8 APPLICATIONS PERCENT EXERCISES

A Yield TestsB Menu Pricing

Objectives

At the end of this topic students should be able to

1 Calculate the yield percentage yield rate orAPquantity 8A1

2 Calculate the menu price cost or food costrate using the 3 basic percent equations 8B1

3 Solve problems involving menu pricing 8B3

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Neither party called the person who teaches this course The Union

presented its evidence through Professor Lorraine Pigeault She has taught in the

Mathematics Department of the College since 1980 and on a fulltime basis since

1985 Previously she developed and taught a course entitled Math 035 for the

Culinary Management and Chef Training programs She testified that when she first

developed the course it was a basic review of addition subtraction multiplicationand division However she says as the caliber and sophistication of college

students rose the course evolved to provide instruction in percentage pr0porionsand the skills that students would need for their specific programs Accordingly she

developed a mathematics course with exercises relevant to the kitchen program

The material she developed became tlebasis of the current Math 1035 programShe was asked to comment upon the current materials Her conclusion is that the

current materials are pretty much the same as the materials she taught She also

testified about the way she taught the course and equates it to other mathematics

courses she teaches at the College She explained how she spent time ensuringthat the students understand the basic skills and then applied these skills to the

field where the students will be working She conceded that the arithmetic in the

Math 1035 course may be simple However she stressed that the students are

taught and must understand the theory behind the equations in order to apply them

to the recipe conveisions determination of unit costs yields and similar

applications Some of these determinations require multiple mathematical steps

Sheexplained that the testing is done through word tests where students are

required to solve problems

A great deal of attention was paid by the parties to the similarities and

differences between the old Math 035 and the currentMath 1035 When Professor

Pieault auglt the course hesudents receivelthree credits Sinceitchanged to

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Math 1035 the students now receive only two credits It is interesting to comparethe course description for Math 035 with the one for Math 1035 cited above The

former reads

This course will provide the student with the basic fundamentals ofmathematics including fractions decimals percentages etc Theirstudies will relate to industryrelated calculations including costingpricing yield percentages and recipe conversions

However the course goals topics and objectives in Math 1035 and 035 read

essentially the same

Dean Sharpe disagrees with some of the evidence of Professor

Pigeault The Dean testified that he directed that the Math 035 course be

fundamentally revised to meet the current needs of the culinary students He

explained that the Culinary Department wanted someone to teach the course whowas not a mathematician and who instead had handsonknowledge of the

industry Accordingly the course was redesigned from Professor Pigeaultsmaterials by Andr6 Roy on a contractual basis when he was teaching the course asa partial load Professor The new Math 1035 course has never been taught at the

professorial level and Mr Roy is not a mathematician He is the one currentlyteaching Math 1035 Dean Sharpe describes this course as teachingranipulativeskills because the students use calculators to solve simple mathematical problemsHe concedes that there are some cognitive elements to the course He added That

only makes sense in the college setting College students need to be able to

acquire and take techniques into the workplace that bring together understandingand handsonlearning

Dean Sharpe also describes Math i035 as a refresher course in

handsonarithmetic techniques He says the course is designed to simply give the

students the rules of thumb and the tricks of the trade that kitchen managers and

chefs use on the job Referring to the elementary school curriculum he illustrated

that the mathematics being taught is equivalent to the Grade 6 to 8 curriculums in

the elementary school system He views the coursesformat as a workshop math

lab where students work through the exercises after minimal blackboard

explanations are given by the Instructors and where the Instructors task is to

supervise the process He feels that this course involves manipulative math

skills

Math 1035 is not being taught in a vacuum it is being taught at a

college where many other comparable and contrasting courses are being offered

Accordingly the padies tendered evidence to show the way this course fits into the

comparative scheme of things Ohe of these courses is Math 1125 which is offeredin the CollegesVocational Program The Math1125s course description promisesa twoterm sequence that consists of a review of basic mathematics with an

emphasis on fractions decimals sign numbers ratio and proportion and an

introduction to the metric system Professor Emmons described this course as one

that is offered to a special group of students who slipped through the cracks and

entered the College with very basic or low level mathematical achievement The

course covers basic arithmetic including adding subtracting multiplication divisionfractions and decimals The courses General Educational Goals include a student

being able to understand and solve problems involving mathematics Dean Sharpe

agrees that the mathematics is at the level of elementary school curriculum There

is a oourse manual Thecourse is taught by a Professor it is not taught urder the

diretionofaCordnaerorether Professor

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Dean Sharpe explains that he assigns a Professor to teach Math 1125because he feels that due to the nature of the students who take this course the

teacher needs a sophisticated ability to diagnose ie detect learning disabilitiesand to be able to teach students who struggle with math He refers to this as

remediation rather than the teaching of basic skills He explainedthat eachstudent is allowed to work through the prepared materials at hisherownpace Hefeels that this requires the teacher to adaptorrewrite the curriculum on almost a

daily basis for each particular student

Another course that was offered by the Union as a comparator is Math1100 This course description reads

In this applied course students study the mathematics necessary to effectivelyperform their duties in the lab and the greenhouse Topics include ageneral review of basic arithmetic and algebra the metric system ratio andscale drawings calculation of solution concentrations and sprayer calibration

The course goals are to apply basic arithmetic algebra and mensuration sic to thesolution of problems related to the Greenhouse Horticultural Winery Viticultureprograms The course materials were prepared by Professor Pigeauit Shedescribes Math 1100 as very similar to Math 1035 She explained that bothcourses involve mathematics being taught through notes and exercises that havebeen developed to meet the specific needs of the students in their respectiveprograms Her opinion is that the theories of mathematics being taught inMath 1035 and Math 1110 are the same and that it is just the applications that aredifferent Again Dean Sharpe differs with Professor Pigeault Dean Sharpestressed that Math 1100 is a threecredit course which includes algebra and math ata higherlevel than Math 1035

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Dean Sharpe suggested that CLN 1222 is a contrasting course toMath 1035 in that the former is taught by a Chef Professor where students are

required to do more complicated two or three step mathematical calculations that akitchen manager would need on the job in crossexamination he acknowledgedthat there are also examples of threestep calculations in the Math 1035 materials

Level of Supervision

Because the Class Definition of Instructor includes the phrase underthe direction of a ProfessOr both parties addressed this issue by referring to theCoordinatorsinvolvement with the Instructors ef the three courses being looked at inthis case However again there is no direct evidence from the Instructors or theCoordinators The Union relies on the Instructors andCoordinators SWFs for the

asr number of years The SWFs do allot time for Coordinators to meet with facultyFurther the evidencb reveals that both Professors and Instructors meet withCoordinators at the beginning of each term to discuss the courses that are beingtaught The Union points to the fact that there are no apparent increases in therelevant Coordinators hours contemporaneous with the commencement of thecreation of these Instructor positions However the Instructors SWFsdoindicatemore time for meetings with Coordinators than is the norm allotted for ProfessorsFurther as of June 2003 the Coordinators position descriptions do indicate that

they are to provide direction to Instructors

Dean Sharpe testified that he has specifically directed the appropriateCoordinators to give direotion to the Instructors offering these courses Dean

Sharpe explained that he considers the Coordinators as being responsible for theprepaiationof the course outlineand for makigchangestothecourse designOnce curse starts he expects the Ceordinatorto be availableto answer the

Instructors questions Dean Sharpe is confident that direction is being givenalthough he has no direct evidence regarding the actual nature of the direction beingoffered However he is sure that direction is being given because he has observedthe Coordinators in discussions with the Instructors and he has received copies of

email exchangesbetween them He does not expect the Coordinators to sit in and

observe the Instructors classes Indeed he testified that this is not necessary in

order to provide direction He referred to the two Instructors affected by this case

and stressed they are fully qualified and experienced in what is needed in theclassrooms and the tabs

The UnionsSubmissions

Counsel for the Union argued that there are four reasons why the two

Instructor Positions are not properly classified as such It was alleged thatneither position is limited to instruction directed towards the acquisition of a

manipulative skill and technique

the teachers are not working under the direction of a professorthe Math 1035 course is not being taught from a prepared course or text

the courses have in the past beentaught and continue to be taught at the

professorial level except for Math 1035

The Union relies heavily upon the Report of the Classification Review

Committee chaired by Kenneth Swan that was released in 1978 hereinafter referred

to as the Swan Report The Union points to the language in that Report that

explains the intention and purpose of the Instructor classification Further it was

said that the Swan Report makes it clear that the Instructor position is only to be

used in limited restricted typesoteachirgThe Union also relies onthe followingcase Jaw arid its analysisofwhen it is appropriate to utilize the instructor

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classification St Lawrence College ofAppliedArts and Technology and OntarioPublic Service Employees Union Shope unreported decision ofJFWWeatherilldated March 25 1981 St Lawrence College ofApplied Arts and Technology andOntario Public Service Employees Union Boone unreported decision ofJFW

Weatherill dated August 17 1981 St Lawrence College ofApplied Arts and

Technology and Ontario Public Service Employees Union Lubimiv unreporteddecision ofJFWWeatherill dated August 17 1981 Fanshawe College and OntarioPublic ServiCe Employees UnionOBrien unreported decision ofJane H Devlin

dated April 3 1998 and George Brown College unreported decision of Howard D

Brown dated August 23 2000

The Union argues that the evidence establishes that neither of the

people who are designated as Instructors in these courses are working under thedirection of a professor It was said that Dean Sharps evidence about the tellingthe Coordinators to give direction to Instructors and his observing of theCoordinators meeting with Insructors falls short of establishing the kind of directionwhich is contemplated by the collective agreement Further it was said that the

Coordinators SWFs do not corroborate the assertion that they may be givingdirection to the Instructors

Turning to the specific courses the Union asserted that the Math 1035course is essentially the same as the Math 035 course previously taught byProfessor Pigeault at the professorial level It was argued that the evidence showsthat there have been no significant changes and that the focus of the course is stillon theory and cognition rather than manipulation It was submitted that the teacherof this coursehaso explain how and why the calculationsshould be appliedintheculinary setting Itwas aelnowledged that some of the math may be basic however

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it was submitted that this should not be a fact that takes it out of the realm ofprofessorial work The Union points to Math 1025 as an example of a course beingtaught by a Professor even though it involves basic math Further the Union pointsout that the course description of both courses require students 4o convert solveand understand In addition some of ihe calculations in the Math 1035 courseinvolve three or fourstep processes It was stressed that the students were beingtaught more than how to plug a formula into a calculator instead they were beingtaught when and how to use different calculations

Turning to CAPL 1594 the Union acknowledges that the evidence wasgiven about this course by a professor who has not taught it However it wasstressed that Professor Emmons has taught the components of Excel andPowerPoint Therefore it was said that her evidence ought to be considered as

persuasive The Union relies on the course information sheet that liststhecourses

goals as including creating and editing analyzing data and modifying materials Itwas argued that PowerPoint is a creative programme which allows people to makeeffective presentations While the course may promise to offer the student a handson experience it was said that the students are still being asked to develop skillsbeyond the manipulative level Accordingly it was argued that this course is outsidethe restrictive scope of the Instructor classification

The Union acknowledges that elements of the CAPL 1498 course havebeen fairly described as manipulative However it was submitted that aspects ofthe course go beyond manipulative skills in that students are taught how to managefiles and problemsolve on the system when mistakes have been made Furthertudents are taught elements of style in the formatting of documentsAccordingly it

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was argued that a significant amoun of this course involves more than manipulativeskills

Counsel for the Union then applied this analysis to the two positions in

question Since one teaches predominantly Math 1035 it was submitted that his

position shouldbereclassified as a Professor The other person teachesCAPL 1498 sixty per cent of his time The rest of his time is spent teachingCAPL 1594 of which 35 to 40 per cent were said to involve cognitive elements of

learning Accordingiy it was said that a significant amount of his teaching is outsidethe restrictive scope of the Instructor definition and that the position should be

reclassified as a Professor

In support of all its arguments the Union places reliance on the factthat other people who have taught some of these courses did so at the professoriallevel It was pointed out that both Mr Domitrek and Mr Roy taught the samecourses as they are now teaching when they were partial load professors The

evidence of Ms Rosen and the documentary evidence support this Further thesecourses were previously taught by Professor Monroe before his sudden retirementHis workload was predominantly composed of CAPL 1498 and 1594 in additionSWFs filed in evidence demonstrate that there are lists of teachers at the

professorial level including Coordinators who teach CAPL1594 and 1498 it wasstressed that the purpose of the classification is to ensure equitable treatment sothat people who do the same work receive the same rate of pay

By way of remedy the Union asked that the positions of Mr Domitrekand Mr Roy be classifiedas Professor and that they receive compensatien

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retroactive to the filing of the grievance in addition the Union seeks theconsequential dues that would flow with the reclassification

The EmployersSubmissions

Counsel for the College challenges whether the Union has properlysatisfied its onus of proof In particular the College points out while the grievanceinvolves the classification of two Instructor positions neither Instructor filed a

grievance or was called as a witness Nor did the Union call any of the Coordinators

aswitnesses despite the fact the Coordinators are members of the bargaining unitThe College accuses the Union of trying to establish its case with Professors whohave taught similar but different courses as an attempt to nibble from both sides ofthe issue without ever providing the critical evidence The College asserts that theUnion bears the onus of proving that the core duties of the Instructors fit more

appropriately within the Professor classification The College asserts that the

appropriate question is which classification is the best fit for the bundle of dutiesReliance is placed on the decision in Lambton College ofApplied Arts and

Technology and Ontario Public Service Employees Union re Pratt and Hepburnunreported decision of EE Palmer dated June 24 1981

The College agrees that there is an overlap in duties between aProfessor and Instructor in that everything an Instructor does a Professor does aswell It was said that this is a critical point and indicates that even if a Professordoes some of the same work as an Instructor that does not mean a person doingthat overlapping Work is necessarily anything more than an Instructor

The College also aFgued that the Unonhas failed to establish thatProfessors areteacJingooursessuchaCAPL148Whilesomeofthe

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documentation filed doesshow partial load employees teaching the 1498 course theCollege asserted that the Unions failure to properly prove their Professorial statusdefeats the claim

It was argued that the evidence does establish that the Instructors are

working under the direction of a Professor It was stressed that a Professor does not

have to hover over an Instructor or be in a classroom on a regular basis to satisfythe definition in the collective agreement Instead the Professor needs to be

available to provide direction in the Same way as a senior academic officer it was

argued that the evidence of Dean Sharpe indicates that the Coordinators were

assigned the responsibility of providing this direction and that this issfficient inorder to satisfy the collective agreement

The College then turned to the terms manipulative skills and

techniques as applied to the evidence in this case It was argued that the Swan

Report supra indicates the intention of the language in the collective agreement isto have Instructors be responsible for areas of simpler subject matter at lowerlevels It was said that the subject matter of the courses under examination all fitwithin that intended level In terms of the words instruction directed to the

acquisition of manipulative skill and technique the College relied on definitions inthe Canadian OxfOrd Dictionary copyright 1998 which include handle treat or use

especially skillfully a tool question material It was said that this definitionindicates that the term manipulative refers to more than the use of physical objectsand is appropriate for terms such as altering editing or moving This was said toindicate that the teaching involved in courses such as CAPL 1498 and 1594 is the

teaching ofmanipulatie skills within the meaning of the colleotive agreement TheCoIlege relies onthe decision in George Brown Coegeand Ontario Public Servce

25

Employees Union unreported decision ofMGIlitchnick dated May 12 1993 toestablish that for courses such as typing where the role of the Instructor is simply to

guide students through a manual the Instructordesignation is appropriate It was

argued that this case should be read in the context of the evolution in technologywhereby learning word processing is akin to learning typing two decades ago

Counsel for the College points out that in all the jurisprudence that wasfiled where grievances such as this succeeded the Union was able to demonstratethat the teacher was responsible for courses with a significant component of theoryin the curriculum It was argued that in the courses in this case especiallyCAPL 1498 and 1594 the students are simply working their way through tutorialsand do not have to learn any theory in order to succeed

counsel for the Employer also stressed that the CAPL 1498 and 1594courses are being taught through prepared courses of instruction and according toprescribed instructional material and formats It was said that the students are

simply being taught a manipulative skill and technique that involves pointing and

clicking a mouse in order to achieve the desired effects available under thePowerPoint or Excel programs Further it was said that this is a twocredit coursewhich reflects that this is of a lower level of complexity than most College courseswhich grant 35 credits It was also argued that Professor Emmons testimonyshould not be relied upon because while she tried to compare her teaching ofCOMP 516 in 1997 with the current CAPL1594 this was said to be an inappropriatecomparison It was stressed that Dean Sharpe had explained that Microsoft hasdeveloped far more user friendly programs over the years and Professor Emmonsprevious course had included the much more complex and difficult Access programFurther the Employer relied on the evidence of Dean Sharpe when he explained

26

that unlike the system that Professor EmmonsIad taught the current Excel programincludes formulas and does not demand that students be able to calculate It was

argued that students are not expected to achieve the conceptual levels of algebra or

problemsolving that is expected in courses taught by Professors Basically it wassaid that the students are just taught how to manipulate the tool the tool beingExcel and PowerPoint

Turning to the evidence regarding Math 1035 the College referred tothe course outline that describes it as a refresher course and that deals with

handson arithmetic It was Said that this course simply teaches the rules ofthumb and tricks of the trade and deals with arithmetic at a very basic levell It wasstressed that this course has been redesigned and is now appropriate for Instructorsbecause the culinary department no longer wanted a mathematician teaching thecourse It was said that the current course simply involves a series of exercises thatstudents work through using math that is about as basic as you can get

The College disputes that the Math 1035 course is comparable withMath1125 because the nature of those students and their disabilities require theProfessor to be able to essentially rewrite the curriculum for each student on adaily basis in order to adapt to their individual learning needs

Counsel for the CoLlege stressed that the Board of Arbitration was notbeing asked to conclude that anything being taught at a basic level cannot be taughtby a Professor However it was said that the level of math in the Math 1035 courseis very simple unsophisticated and appropriate for an Instructor classification

27

As a general response to the Unionssubmissions counsel for the

College argued that the Unions position would result in a much more restrictive

definition of Instructor than the previous jurispudence supports The College alsochallenged the Unions assertion that the CoOrdinatorsSWFs do not indicate thelevel of direction necessary to satisfy the definition On the contrary it was arguedthat theCoordinatorsSWFs do indicate sufficient time to meet with Instructors

Further the Board of Arbitration was asked to draw a negative inference from the

failure ofthe Union to call any of the Coordinators to dispute Dean Sharpesassertion that he had instructed them to provide direction to the two Instructors

Accordingly it was said that Dean Sharpes evidence Stands unchallenged andshould be accepted

The Unions Replv

Regarding the onus of proof and the Unions alleged failure to call theInstructors and Coordinators as witnessescunsel for the Union responded bystressing that this case proceeded as a Union grievance on agreement of theparties The Union asserts that the evidence that was presented fulfills the onus of

proof Fudher it was pointed out that both the Union and the College were free tocall the Coordinators or the Instructors Accordingly it was argued that theirabsence as witnesses could lead to a negative inference against either or both

parties The Union also asserted that this is not an appropriate type of case to lookat the best fit of Professor or Instructor classification given the definition of anInstructor is a limited subset of the Professor designation

28

The Union also asserts that it did meet the onus of proof of

establishing that CAPL 1498 is being taught by Professors It was argued that theevidence of Professor Rosen and the documentary evidence established that partialload staff continues to teach CAPL i498 at the Professor level

The Union also stressed that it does not challenge Dean Sharpestestimony that he has told the Coordinators to provide direction to the Instructors

However it was argued that the evidence does not establish that the nature of theactual direction being given is sufficient to bring the College within the meaning of

direction under the collective agreement as the cases have accepted

Turning to the Employersuse of dictionary definitions for the words

manipulate skill and technique it was argued that these definitions are irrelevant

given that the parties have the Swan report which defines the meaning and intent ofthe words in the collective agreement

The Decision

Both parties acknowledge the importance of the Swan Report issued in

January 1978 That Report was the culmination of the Classification ReviewCommitteesstudy to determine inter alia whether there should be a new Instructor

classification established in the collective agreement The Committee concludedthat there ought to be a separate classification of Instructor and provided the

following interpretive assistance

Fhe salary structure used ismore in accord with a more restriCtiveuseof the Instructor classification where itis limited to areas of simpler

29

subject matter at lower levels or in less demanding pedagogicalmodes Page25

In some circumstances it may be possible to identify a separatesubordinate teaching role to be performed under direction The scopefor that role requires careful delineation if it is not to become yetanother source of dispute between the partiesThe elements which we consider ought to be comprised in the newdefinition include instructional tasks which are based on clearly andthoroughly established course objectives or those which are basedon an integrated course format such as program instruction packagesor computeraided instruction or those that are directed to theachievement or acquisition of a skill or technique We would expectthat these tasks would be carried out in association with the teachingmaster Professor who would bear responsibility for curriculumdesign development and validation

What we are trying to identify is a subordinate teaching role whichwould adequately reflect the difference in remuneration which nowexists between the two scales and which also coincides with an

appropriate division of tasks in the teaching jobPage 3031

The Committeesfinal report issued in July 1978 clarified these previous commentsIt was said at pages 2 to 4

We intend to identify a restrictive scope for the Instructorcategory and we had sought a form of words which would have thateffect

we did not intend to create a classification which could be

applied in any discipline at any level of instruction and in anypedagogical model We intended rather a limitation to what theUnion calls hands on skill training and related instructionalmethods and the use of the expression and limited to instructiondirected to the acquisition of the skill or technique ought to havemade this clearThe wording we have settled upon is designed to create aclassification dedicated toinstruction at a level where the academic

preparation and decisions have been in advance and the role Of theteacher is limitedtospeFvisonof the learning process Weiconsider that ata certain level of sophistication of subject matter

30

this sort of relationship becomes impossible and it is for this reasonwe have introduced the limitation to instruction directed to the

acquisition ofaskill or technique as our original definition provided

After much resort to dictionaries and other references we are still ofthe view that skill or technique describes the sort of learnedaptitude which we think Instructors might be employed to impartCraft is also a word which captures the meaning we wish to conveyalthough most dictionaries define craft by the use of the wordskill In order that we may not be misunderstood however wedecided to use the adjective manipulate to convey the meaning weintend We think that this will produce a certain redundancy but thatredundancy is probably preferable to a disputed interpretation

The Swan report then set out the class definitions for Professor and Instructor which

continue in the collective agreement to this day

Despite the Classification Review Committees hope that its extensivework and careful clarifications would avoid disputed interpretations a great manyarbitration boards have had to provide assistance and jurisprudence has developedon this issue In the St Lawrence College Shope case supra the Board ofArbitration was asked to look at the work of a health care aide teacher Manymanipuladveskills were being taugitsuch as how to change a bed pan But thecase turned on the fact that students were also being taught more than manipulativeskills in that they were given instructions on attitude planning and the activation of

patients Therefore because the teaching went beyond imparting simplemanipulative skills the position was held to be at the Teaching Master now referredto as Professor level The teaching of these types of cogitative skills werecontrasted with the teaching of typing which relied heavily on packaged materialsand prescribed texts all of which were directed at the acquisition solely ofthe

manip31ative skills or techniques necessary to operate a typewriter TheStLawrence College B3oa asespra dealtith the teaching of six lab coursesMost of these labs were complementary to a lecture course given by a Teaching

31

Master Professor There was no significant degree of direction or instruction given

by the Teaching Master with respect to the contents or conduct of the lab The

board of arbitration noted that regular tests and quizzes were offered and noted that

Instruction whose efficacy is measured by a written test is not weshould think likely to be instruction in a purely manipulative skill Suchskills are more likely to be tested by some practical examinationPage 8

It was noted that where the techniques being taughit are also being formed by a

certain level of theoretical knowledge then the teaching goes beyond the level that

is appropriate for an Instructor

In the St Lawrence Lubimiv case supra the teachingofsurgicalassisting was to a large extent directed to the acquisition of manipulative skills and

techniques However itwas also concluded that the teaching went beyond that in a

significant way Students were being taught about the characteristics of drugs and

their appropriateness in certain situations attitude and deportment and were being

given an understanding of their work and its implications on their professionalismAll those were factors which were said to upgrade the level of instruction to that of

prOfessor

The cases cited above indicate that where the work of a teacher goes

beyond the restrictive definition of Instructor then the Professor classification is

appropriate Another approach taken in the relevant jurisprudence is to look at

which classification is the best fit for the core duties This approach can be seen inthe FanshaweOBrien case as well as George BrownUniongrievanoe The

decision inthe caseathand need notresolve the debate about whether the best fit

32

or restrictive approach analysis is most appropriate Instead this case shall simplyanalyze the three courses for which we have been presented evidence Those

determinations together with the relevant persons assignments will dictate the

proper classifications of the people in question Accordingly the three courses shallbe analyzed in accordance with the case law cited above the Collective agreementand the following summation of the relevant principles

It must be concluded from the case law the Swan Report and the

collective agreement that there are certain hallmarks that can be attached to boththe Instructor and the Professor classifications The most important definition of theclassifications comes from the collective agreement itself For an Instructor this is arestrictive definition where the duties are limited to that portion of the total spectrumof academic activities related to

the provision of instruction to assigned groups of students

through prepared courses of instruction

according to prescribed instructional formats

directed to the acquisition of a manipulative skill or techniqueunder the direction of a Professor

Notwithstanding these restrictions the Instructor remains responsible for andhas the freedom to provide a learning environment which makes effective useof the resources provided She can select suitable learning materials fromthose provided or identified to facilitate the attainment of the educational

objectives of the course This instructional teaching is

applicable tohandson skill training and related instructional methodsor handsondemonstration of practical techniquesin areasofsimpler subject mattersandat lower evels

33

limited to a supervision process whereby students work through preparedmaterials

where the efficacy of the teaching is tested 15y way of a practical test rather than awritten examination

in a subordinate teaching role where a Professorie a Coordinator is availableto give direction and guidance to the Instructor related to the teachingassignments

The class definition of a Professor is much broader than that of an

Instructor The class definition makes the Professor responsible for providingacademic leadership and for developing an effective learning environment for

students The hallmarks of a Professor involve teaching that goes beyond the

acquisition of manipulative skills in a significant way The efficacy of the teaching is

expected to be tested by written examinations Where manipulative skills are beingtaught a Professor is also expected to inform the students of the theoreticalknowledge to understand and utilize such techniques This would involve the

teaching of theory as well as practice

Each of the releVant courses can now be examined in detail in

accordance with these principles

Math 1035 certainly contains more basic subject matter Indeed muchof the mathematics was shown to be at the level of elementary school curriculumThe course materialsdo ask students to perform simple adding subtractingmultiplication and division calculations However the evidence also shows that morethan simplearithmeticisbeing asked of the students The students are givenareview ofsimplemathematical concepts and then asked to applythem in a way that

34

will be relevant to a commercial kitchen They are aught how to solve kitchen

problems with the use of the mathematical formulae Without acquiring an

understandirg of the concepts they will not be able to know when where or why the

formulae should be invoked Sometimes the calculations also require mUltistepproblemsolving similar to the types found in Math 1100 which the College asserts isbeing appropriately taught at the professorial level Accordingly in the words ofDean Sharpe in another context the students aretaught to bring together

understanding and handsonlearning by applying the mathematical principles to the

practical problems in a kitchen

Further mathematics is an abstract concept and the students are beingasked to applythose concepts to practical situations The students are taught how toconvert solve and understand certain problems Their success in the course istested by way of examinations which involve word problems and problem solvingrequirements Accordingly it is difficult to see how this course can be considered tobe one where the instruction is directed to the acquisition of the manipulative skill or

technique For all these reasons we have concluded that Math 1035 involves

teaching that goes beyond the restrictive definition of an Instructor

We are reinforced in this conclusion by having reference to othercourses being taught by Professors at the College In particular the evidence

regarding Math 1100 indicates a significant similarity in the subject mater in thathorticulture students are being taught how to use fairly basic arithmetic to mix and

apply formulas The horticulture students are also tested by way of word questionsand their problems also involve multistep calculations The Math 1100 course is

taught by a Prfess0r and we see no conceptual differences vithMath 1035

35

Inaddition we see similarities between Math 1035 and 1125 In thelatter course very basic mathematics is also being taught perhaps even at a simplerlevel than Math 1035 It is true that the pedagogy may be more demanding becauseofthe vocational students lower level of mathematical aptitude or achievementwhen they begin this course This may require more sophisticated teaching skillsthan are required for the Math 1035 course However nothing in the class definitionof either Instructbr or Professor indicates a differentiation of classification based onthe levels of achievement aptitude or expectations of the students Accorlingly thedistinction between the students in the two courses is not relevant and does notsupport a distinction in classification when the subject matters are so similar

We are mindful of Dean Sharpesclear intentions when he directed

that the Math 035 curriculum be revised to develop Math 1035 We accept that thecurrent course is designed to teach basic mathematics with practical applications tothe culinary students We accept that the course has been redefined to fit the

objectives of the Culinary Program and that this has involved a scalingdown of themathematics involved in the course We also accept that there was a resultingreduction in the number of credits allotted for this course Further the Math 1035course may have prepared materials and may be being taught in a prescribedformat These are certainly relevant factors However they do not outweigh theessential nature of the material being taught and the fact that the course is not onethat is directed towards the acquisition of manipulative skills or techniques Ateacher of this course must go beyond that to give the students an understanding ofmathematical concepts so that they can be appropriately applied to the culinarysetting The teaching goes beyond supervising We do not see any fundamentalchanges from Math 035 to Math 1036 that would confinethe essential subject matterinto the restrictivelass definition of Instructor

36

For ali these reasons we have concluded that the Math t035

course involves duties and responsibilities above and beyond those contained

in the class definition of Instructor Accordingly we find that the teaching of

this course is being done at the level of a Professor

CAPL 1498 is the introductory course in computer literacy that teaches

students handson computer skills necessary for success in their college programs

This course has a prepared course of instruction a prescribed instructional format

and expects students to work through a Series of handsonexercises designed at

acquiring computer skills While the teachers may have the freedom to useother

materials as they wish the materials contain a complete set of exercises and

instructions for the students At the end of the course students are evaluated on the

basis of a handsontests where they are given specific tasks to perform using thecomputer Nothing in the course description or objectives asks that the students be

able to analyze understand theory or do anything beyond performing handson

exercises with Windows and on the Internet The objective of the course is to give

handsoncomputer skills and for students to learn how to use the systems This

course was fairly described in evidence as akin to typing in the millennium In all

these ways the course seems to be completely consistent with a kind of teaching

expected of an Instructor under the class definitions of the collective agreement

The only aspect of the evidence that makes this conclusion

problematic is the fact that a number of Professors are being assigned to teach this

Course The Union raises the compelling argument that the classification system

demands that people doing similar work should be paid at a similar level However

the evidence of Dean Sharpe does satisfy the Board of ArbitrationthatProfessors

arebeing assigned to teachCAPL1498 in orJertofillout their SWFs Further the

Coordinators are being asked to teach the course in order to keep themselves

current with the students needs Accordingly it appears that their core functions

remain that of a Professor even though theyareteaching a course such as 1498

In addition it is to be recalled that there are overlapping functions for Professors and

Instructors A Professor does everything that is expected of an Instructor and more

Therefore the mere fact that a Professor is assigned to teach a course that is also

appropriate for an Instructor is not in itself enough toestablish that a course is

being taught at a professorial level

Accordingly the Board of Arbitration is satisfied that the teaching

of CAPL 1498isconsistent with the class definition of Instructor

The CAPL 1594 course is the most problematic one presented by the

evidence The course description promises that this is an introductory course where

the Excel portion provides students with introductory handson skills The

PowerPoint portion of the course then provides students with skills required to

create modify and refine slide presentations In so far as the Excel portion of the

course is concerned we are satisfied that it is similar to the essential elements of the

CAPL 1498 course in that it teaches the manipulative techniques necessary to use

the system effectively The creative possibilities available with PowerPoint suggestthat more than manipulative skills may be being taught

However there are several problems with the Unions claims with

respect to this aspect of the case The Union bears the onus of proof in this type of

grievance We did not have any evidence from someone Who is actually teaching

the courseWeappreciateProfessor Emmons evidence and accept that it was

honest Howevershe does nothave sufficient knowledge of the current course to

38

be persuasive The course she taught in the past included a component of Accesswhich is no longer part of the CAPL 1594 course Dean Sharpes evidenceconvinced the Board of Arbitration that the inclusion of Access makes the previouscourse different from the one that is being taught Further there has been anevolution in the Excel and PowerPoint programs in the few year since they were

taught by Professor Emmons Those evolutions have made the program more user

friendly and demanding of lesser understanding from the students Accordingly the

students in this course are merely required to be able to learn how to use the

systems and manipulate thetools trdat the programs provide

There is nothing in the evidence that Suggests that any aspect of the

Excel portion of CAPL1594 involves more than the kinds of manipulative techniques

being taught in CAPL 1498 CAPL 1594 also has prepared course materials and a

prescribed instructional format The course mateiials take the students through

prepared workshops and exercises that involve manipulative skillsor techniquesnecessary to operate or navigate the programs The course objectives include the

students learning how to enter format and being able to complete handson

practice exercises These are manipulative skills where the teacher need only

supervise the students as they work through the prepared materials

It is the PowerPoint aspect of the CAPL 1594 course that raises some

difficutywith the determination of this case Here the evidence establishes thatstudents are taught not only how to use the program but how to create modifyformat edit and refine presentations They are also taqght how to createandenhance drawings build effects Produce freehand animatien and workwith different

styles This work can involvealindof creativity that goes beYond sirrle

39

manipulative skills or techniques However tha is consistent with the class

definition of Instructor because it provides that such a teacher is responsible for and

has the freedom to provide a learning environment which makes effective use of the

resources provided The evidence provided is that the teachers role in this course

is to instruct the students about how to make effective use of the Excel and

PowerPoint systems This does not bring the teaching outside of the class definition

of Instructor It is easy to see creative andorcogitative elements in almost any kind

of leaning However the objective of the CAPL 1594 course is to provide students

with the skills required to create mdify format and refine slide presentations The

focus is on the introductory handson manipulative skills required to make or build

the slides not their creative potential The testing is of the handson type where

the students are given specific tasks to perform using the computer There is noevidence that suggests that their creative abilities are what are being tested

Therefore it must be concluded that while there may be creative elements in

the PowerPoint portion of this course they are not significant enough to

elevate the teaching of CAPL 1594 outof what would be appropriate for an

Instructor

This leaves unansWered the Unions claim that the Instructors are not

working under the direction of a Professor as is required under the class definition

We accept that there is no direct evidence of actual supervision being given by the

Coordinators Nor do the Coordinators SWFs reveal that extra time for direction

was attributed when the Instructors relevant to this case were hired However we

do accept the evidence of Dean Sharpe when he said that he specifically told the

Coordinators to give direction to the Instructors This is also confirmed in the

Ceordinatorspositiondescriptions We find this evidence sufficient partcuarly in

light ortheSt Clair CollegeWebster decision SUPra wherein itwas indicated that

40

there is no expectation that there will be frequen need for direct recourse to the

Professor for regular direct supervision As the case concluded It is sufficient

that such direction be sought as and when it proves necessary The College in this

case has made the direction available to the Instructors That is sufficient to satisfy

the requirements under the collective agreement

Conclusion

In conclusion it has been determined that the Math 1035 course

involves teaching that goes beyond the restrictive scope of the Instructor class

definition in the collective agreement On the other hand we have concluded that

the CAPL 1498 and 1594 courses involve teaching that is consistent with the class

definition of Instructor

This leaves undecided the question of remedy The SWFs for Andr

Roy indicate that at all relevant times he Was teaching predominately Math 1035

Accordingly it would appear that he is improperly classified as an Instructor The

classification should be amended to that of a Professor and he is entitled to

compensation retroactive to the filing of the grievance Further the Union is entitled

to any dues that may flow as a result

The other position in question is that created by the courses being

taught by Mr Domitrek His teaching responsibilities involve a mixture of

CAPL 1498 and 1594 courses throughout the relevant period Therefore it would

not appear that any remedy wouldbe available for this position

41

The Board of Arbitration remains seized with any issues of

implementation that may arise

Dated at Toronto this 8th day of January 2004

I dissent in partSee attached Jacqueline G Campbell

Employer Nominee

Ron DavidsonI dissent in partSee attached Union Nominee

PARTIAL DISSENT OFRON DAVIDSON uNION NOMINEE

I concur with the majority decision with reference to the Math 1035 course involving

teaching that goes beyond the scope of the Instructor class definition in the

Collective Agreement and the remedy that flows from that decision

I also can concur with the teaching of CAPL 1498 and the Excel portion of

CAPL1594 course being somewhat consisteni with the definition of Instructor

However I am not persuaded that in CAPL 1498 and CAPL 1594 the Instructors are

working under the direction of a Professor in addition I must take issue with the

majority decision concerning the CAPL 1594 Power Point portion of this course

The evidence shows that Professor Roy and Professor Domitrek were partial load or

parttime Professors teaching the courses that precipitated the grievance At the

direction of Dean Sharpe Professor Roy revised the courses to the extent that the

College decided that they were now course that could be assigned to the lower paid

classification of Instructor and accordingly posted the positions Professor Roy and

Professor Domitrek were successful appliCants for the fulltime instructors positions

The Board was hampered by the fact that Professor Roy and Domitrek who are

currently teaching the courses declined to give evidence While this could be

considered a flaw in the Unionscase it certainly was not fatal By way of evidence

the Board could only access the evidence of Professor Emmons as opposed to that

of Dean Sharpe

43

As a staff administrator for many years I have held the view that those in a

supervisory role exercise the skill to devise how a job should be done and devote as

much time as they can afford to obtain that objective However if you want to know

how the job is done you ask the person who is actually doing the job

Professor Emmons was an impressive witness Articulate honest and obviously

aware of what her teaching position entailed On the other hand Dean Sharpe

testified that he had not taught a course in the last eleven years As the courses

were redesigned at his direction it was not surprising that his evidence appeared

tailored to support the reasoning behind the need to redesign the courses

On the basis of Professor Emmons evidence I was convinced that there was not a

significant difference between the course she taught and the current Power Point

sections of CAPL 1594 Further the poWer Point section went beyond the teaching

of manipulative skills to the degree that cognitive skills were required and therefore

is in violation of the Collective Agreement which states that Instructors are limited

to instruction directed to the acquisition of a manipulative skill technique and under

the direction of a Professor

With regard to the question whether the Instructors were working under the direction

of a Professor I have no doubt that Dean Sharp did give the coordinators

instructionsto direct Instructors However the question that needs to be answered

is was that action sufficient to comply with the wording of the Collective Agreementthat Instructors are to work under the direction of Professor

Onoe again the Board was not afforded the luxury of hearing testimony from the Co

ordinator responsible for directing the Instructors What wedoknow is thattleco

44

ordinators SWFs show that no extra time for direction was attributed when these

instructors were hired We also know that under cross examination Dean Sharpe

acknowledged he did not know if meetings between the coordinators and

Instructors that could take place if necessary ever did take place He didntknow if

Instructors take advantage of the extra hour allotied for meetings

He acknowledged he had never instructed Coordinators to attend classes

conducted by Instructors He has no knowledge ofCoordinators attending or sitting

in on a class The totality of evidence surely is insufficient to meet the requirement

to work under the direction of a Professor In the majority decision on page of

this award in referring to eviderce by Dean Sharpe it states He referred to the two

instructors affected by this case and stressed they are fully qualified and

experienced in what is needed in the classrooms and the labs Surely one would

expect that Professors who had previously taught similar courses would be fully

qualified and experienced It is regrettable that this Board relies in part on the St

Clair College Webster decision that it is sufficient that such direction be sought

as and when it proves necessary Such interpretation only gives encouragement to

management to circumvent the Collective Agreement by hiring Professors to do

work that is revised to tryand fit the pattern of the instructor classification

Accordingly for all of the reasons noted above I dissent from the award and would

have allowed the Union Grievance and granted the same remedy for the teachers of

the CAPL 1498 and CAPL 1594 courses as granted for the teaching of the Math

45

1035 course by the Board majority and awarded the Union any dues that flowed

from this decision

DATED at Grimsby Ontario this 8th day of January 2004

Ron Davidson

Union Nominee

46

PARTIAL DISSENT OF JACQUELINE G CAMPBELL EMPLOYER NOMINEE

While I am in agreement with the award regarding the teaching of the CAPL 1198

and 1594 courses being consistent with the class definition of Instructor I do not

cncur with the finding that the MATH 1035 course is taught at the Professor level

In his evidence to the Board Dean Sharpe described the course as teaching

students manipulative skills in the use of calculators to solve simple mathematical

problems It is designed primarily for culinary students who are taught the rules and

thumb and tricks of the trade and deal with arithmetic at a most basic level Dean

Sharpe also testified that he directed the Coordinators for the courses in dispute to

provide directin to the Instructors offering the courses He observed coordinators

discussing matters with the Instructors and received copies ofemail exchanges

between them While no direct evidence from the instructors or Coordinators was

provided to the Board Dean Sharpestestimony was not contradicted On this

basis I would have concluded that the teaching of MATH 1035 was overseen by a

CoOrdinator

Given the nature and level of arithmetic taught in the MATH 1025 course the

teaching of manipulative skills regarding the use of calculators and the direction to

be provided to the teachers involved I would have found that the Instructor

classification was the more appropriate best fit for this position

DATED at Toronto Ontario this 8th day of January 2004

Jacqueline G Campbell

EmployerNomiee