HEADNOTE

O.P.S.E.U. # 84CO2 Local 558

D. Banks et al vs. Centennial College (Weatherill) February 8, 1985

The grievors were employed as coordinators in the Continuing Education Department and they were classified as "Teaching Masters". They entered the bargaining unit in 1972 from the Hay System. Their complaint was that they were not receiving two months vacation, rather, they received vacation based on a formula of twenty-two days per year, plus one day for each year of service to a maximum of thirty days per year. The arbitrator, in this most unusual decision, deemed that because the grievors were not teaching courses, they in fact were not in the bargaining unit and therefore their grievance was inarbitrable.

IN THE MATTER OF AN ARBITRATION

BETWEEN: CENTENNIAL COLLEGE

AND

ONTARIO PUBLIC SERVICE

EMPLOYEES UNION

AND IN THE MATTER OF THE GRIEVANCES OF D. BANKS, C.

DRISCU, H. LIVERPOOL AND P. PRENTICE

BOARD OF ARBITRATION: J. F. W. Weatherill,, Chairman

S. D. Kaufman, Union Nominee

W. T. Gretton, Employer Nominee

A hearing in this matter was held at Toronto on September 4 and October 15, 1984.

M. Ball, for the union.

J. G. Richardson, for the employer.

AWARD

In this grievance, dated December 5, 1983, the

grievors allege that the college is improperly

interpreting and applying article 5.01 of the collective

agreement.

Article 5 of the collective agreement deals

with the matter of vacations, and article 5.01 provides,

insofar as it is material, that "A member of the

teaching faculty who has completed one full academic

year's service with the College shall be entitled to a

vacation of two months as scheduled by the College".

most cases, this constitutes the traditional two-month

vacation for teachers, who are regularly scheduled to

teach during ten months of the year. Special provisions

are made in article 5 for teachers engaged in continuous

programs, and who may be required to teach an eleventh

month.

The grievors, each of whom has been employed

at the college for a number of years, have never had

(nor, until the time of this grievance, had they

requested), two-month vacations. Rather, they have

taken vacations based on a formula of twenty-two days

2

per years, plus one day for each year of service, to a

maximum of thirty days per year. This would appear to

be the standard vacation for administrative employees,

not covered by this collectiv‘ agreement, and whose work

is not based on the traditional academic year.

The grievors, who work in the Continuing

Education.Division of the college, do not hold regular

teaching assignments, and their work is not related to

the traditional academic year. While their individual

jobs have changed and evolved over time, they have for

many years been performing adminstrative rather than

teaching duties, although it is the administration of

teaching programs with which they are concerned. They

have been called, at various times, "Coordinator",

"Program Coordinator" or "Program Consultant", although

in recent years their job classification has been stated

to be that of "Teaching Master". While the grievors,

whose jobs are distinguishable from those of

"coordinators" referred to in the collective agreement,

perform certain functions which are also performed by

Teaching Masters, they do not perform the essential

function of that job - regular teaching - and they'do

perform other functions, of a generally administrative

nature, which Teaching Masters do not perform. On all

of the evidence before us, we find that while the

grievors may have been placed in the classification of

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Teaching Master for salary purposes, their work is not

in fact that of a Teaching Master, and they are not

engaged in teaching.

At the outset of the hearing, counsel for the

college raised two preliminary objections going to the

arbitrability of this matter. The first was that the

grievances were untimely, and the second was that the

grievors were estopped from making the claims they do.

Each of these objections may be briefly dealt with.

First, it is said that the grievances are

untimely in that they were not filed within the

appropriate time from the time when the grievors became,

or ought to have become aware that they had not received

the vacations they felt they were entitled to. With

respect to claims in respect of past vacations, the

objection is obviously well taken; it is no answer, in

the face of language as plain as that of article 5, to

say that the grievors were not aware of its provisions,

and . it would be embarassing to them to suggest that they

were unaware of the length of the vacations they in fact

had. A claim of this sort is, however, quite clearly in

the nature of a continuing grievance, and for vacation

entitlement still due during the year of the grievance,

the claim would be timely. We do have jurisdiction

(subject to what will be said below), to deal with the

4

matter, but this jurisdiction would not extend to

granting relief in respect of any vacation entitlements

missed in past,years.

Second, it is said that the grievors are

estopped from grieving because they entered into

agreements with the college in respect of their

employment, in which it was explicitly recognized that

their vacation entitlements were to be those of the

formula above referred to: 22 days per year, plus one

day per year of service to a maximum of 30 days'

vacation per year. The grievors did indeed enter into

such agreements, and those agreements certainly set out

the grievors' understandings of their vacation

entitlements. Such agreements, however, would be a

nullity to the extent that they were inconsistent with

the terms of any valid collective agreement between the

college and the authorized bargaining agent of its

employees. In the instant case, the union is the

authorized bargaining agent for employees in the

academic staff bargaining unit.. It is not open to the

college to bargain individually with its employees who

are members of that bargaining unit. If the grievors

are such employees, then the individual agreements

relating to vacations are nullities. They are certainly

not binding on, nor would they estop the union from

advancing the claim advanced by the grievors in this

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case.

What must be determined, however - and an

awareness that this was the central and substantial

issue in the case before us appeared to emerge only as

the matter proceeded - is whether or not the grievors

are in fact members of the bargaining unit, and covered

by the collective agreement. This is a question

involving the fundamental jurisdiction of this board.

From the evidence, it appears that in about

1972 the college decided (for the distinct benefit of

the employees involved), that the salaries of certain

administi'ative employees, including the grievors or

their predecessors, would no longer be determined by the

application of the Hay system of salary evaluation which

had previously been used, but would be determined by

reference to the salary schedules for Teaching Masters.

Such schedules were, at the time, embodied in a

memorandum of understanding between The Ontario Council ,

of Regents For Colleges of Applied Arts and Technology

and The Civil Service Association of Ontario (Inc.),

predecessor of the present union. That memorandum

recognized the Association as the exclusive collective

bargaining agency "for all academic employees of the

Colleges engaged as teachers - - " with certain

exceptions. Neither the grievors (to the extent that

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any of them were then employees of the college), nor any

other Consultants in similar positions were considered

to be or treated as part of that bargaining unit.

Neither the definition of the bargaining unit

nor the essential nature of the grievors' jobs appears

to have changed in any significant way since that time.

The collective bargaining relationship of the parties is

now governed by The Colleges Collective Bargaining Act,

1975. By section 68(1) of the Act, the bargaining units

set out in the Schedules are the units for collective

bargaining purposes under the Act. The material

schedule in the instant case is Schedule 1 to the Act,

which provides as follows:

The academic staff bargaining unit includes the employees of all boards of governors of colleges of applied arts and technology who are employed as teachers, counsellors• or librarians - - -

and then sets out certain exceptions which are not here

material.

The grievors (or their predecessors in their

jobs) were not "teachers, counsellors or librarians" at

any material time in the past, nor are they, as we have

found, at present. The current collective agreement, it

should be added, defines the bargaining unit in terms

very similar to those of the Act.

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Whether or not it would be open to them to do

so (and we doubt that it would), there is no suggestion

in the evidence that the parties - either at the

provincial or the local level - sought to amend, or

considered that they were amending the scope of the

bargaining unit. There is no suggestion of any

grievance or claim on the part of the union to the

effect that the grievors had been improperly treated as

not coming within the bargaining unit, or that they were

in fact "teachers" within the meaning of the collective

agreement or its predecessor, the memorandum of

agreement. What happened was simply that the relative

salary position of the. Consultants was protected by

having their salaries determined by reference to those

established for Teaching Masters. It was not considered

at that time either that the bargaining unit had been

amended or that the Consultants had been brought within

it. As we have suggested, we do not consider that it

would have been open to the parties to do that in any

event.

What happened in subsequent years is that the

grievors (and, presumably, other consultants), have been

treated at least for some purposes as though they came

within the bargaining unit. They have been referred to

in annual notices of appointment and salary as "Teaching

8

Masters". In some cases at least. union dues have been

deducted from their salaries. In one case a grievance

was processed to arbitration (although it may be that at

the time of the grievance the employee in question had

been transferred to a position in the bargaining unit).

But while the parties may, at the local level. have

treated these employees for some purposes as coming

within the bargaining unit, they have not so treated

them for all purposes. Certainly there is no suggestion

of any conscious or deliberate agreement between the

parties in respect of this group of employees, nor of

any notice to the employees that their employment status

might be affected. Not all of the Consultants, it

should be added, have seen fit to file grievances in

respect of their vacation entitlements.

Having regard to all of the evidence, it is

our conclusion that the grievors are not "engaged as

teachers" within the meaning of the collective

agreement, and that they are not members of the

bargaining unit. Their claim to vacations pursuant to

the collective agreement is, accordingly, not an

arbitrable one, and the grievance must therefore be

dismissed.

9

DATED AT TORONTO, this 8th day of February, 1985.

/)

• ‘PAt,) 't,S-■—c,t(_,L(1

T. F. W. Weatherill-

Chairman.

"W.T. Gretton"

Nominee.

"S.D. Kaufman" - I dissent

Nominee.

DISSENT

The following documentary evidence supports the

position that the Grievors are members , of the teaching faculty

and covered by the Collective Agreement, and by Article 5.01.

Exhibit 1 Letter of September 13, 1976, from Executive Vice-President, Academic, Mr. I.B. McCauley to Mrs. Debby Banks, refers to her position as "Instructor" in the Continuing Education Division, and sets out a minimum of 2 hours per week per semester of teaching as a require-ment of the position.

Exhibit 3

Letter of May 10, 1974, from Executive Vice- President, Academic, I.B. McCauley, to Miss Carole-Anne Dziewa, advises her of her appoint-ment as Associate Master (Coordinator I) and gives her a teaching master's basic salary, increment for one year teaching experience, and coordinator honorarium.

Exhibit 4

Exhibit 5

Exhibit 6

Confirming letter of Miss Dziewa accepting. the appointment, dated May 24, 1974.

Memo dated December 12, 1972, to Mr. H. Liverpool from Vice-President, Academic, I.B. McCauley confirms transfer from Hays group to C.S.A.O. (Civil Service Association of Ontario) group, confirms his position included teaching a minimum of 2 hours per week, , and advises that his classification is changed from Associate Master to Master.

Letter of September 12, 1973, to Patricia Prentice from I.B. McCauley, Executive Vice-Pres-ident, Academic, offers her the position of Master (Coordinator II), gives her a basic salary and increment for 8 years' teaching experience and an honorarium as Coordinator, and sets out the benefits covered by the Collective Agreement; and her letter of acceptance.

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Exhibit 10

Exhibit 11

Memo dated December 5, 1972,•and attached Classification Revisions revises classifications so that coordinators in Continuing Education Division are titled Coordinator (Associate Master) and Coordinator (Master). The attached Confidential Memo, dated November 27, 1972, and addressed to the incumbents of the Co-ordinator positions, including the Grievor, Mr. Liverpool, sets out in paragraph 2 that their general duties " ... shall include teaching assignments, ... examination, marking, ... other assigned functions and responsibilities ancillary to teaching assignments ..." and in paragraph 3 that the classroom teaching assign-ments "shall not be less than two (2) hours per faculty member per week ..."AUnderscoring mine)

Letter dated December 6, 1972, from Dorothy Lambeth, Coordinator, Continuing Education Division, to I.B. McCauley, Vice-President, Academic, confirms her transfer to C.S.A.O. ejroup.

Position Description re Coordinator of Special Programs, dated August 6, 1970.

Memo of April 24, 1975, from I.B. McCauley, Executive Vice-President, Academic, to Miss C.A. Dziewa advises her of her reclassification to Associate Master (Coordinator II)

Exhibit 16

Exhibit 19

Exhibit 20 Letter of May, 1975, from I.B. McCauley,Executive Vice-President, Academic, to Miss C.A. Dzie,e advises that the College "will be re-appointing" her "to the teaching faculty as Associate Master (Coordinator II).

Exhibit 22 Memo dated April, 1982, from A.R. Devlin, Execu-tive Vice-President, Academic,: refers to attached letter (Ex. 23) and describes the.letter as confirming "only" her "Teaching Master status and the applicable 1982/3 salary".

Exhibit 23 Letter from A.R. Devlin, dated March, 1982, to Ms. C.A. Driscu sets out her rank as Teaching Master with Coordinator Honourarium, advises her of discussions taking place with the OPSEU Academic Negotiating Committee and cites Article 4.06 of the Collective Agreement to her with the clear implication that she is bound by the Agreement.

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Exhibit 24 Letter dated February 9, 1973, from I.B. McCauley, Executive Vice-President, Academic, to Mr. H.S. Liverpool wers his rank as Master (Coordinator II*), re-appoints him to the faculty and advises him individual contracts are being discontinued as "there is a Master Contract in existence".

Exhibit 25 Letter dated May, 1975, from I.B. McCauley, Exe-cutive Vice-President, Academic, to Mr. Liverpool advises him of his re-appointment to the "Faculty of Centennial College", that his rank is that of Master (Coordinator . II) and that C.S.A.O. Academic Negotiating Committee is discussing increments with the C.A.A.T. Academic Negotiating Committee.

Exhibit 26 Letter dated April, 1983, from A.R. Devlin, Exe- 1 cutive Vice-President, Academic, to Mr. Liverpool

cautiously advises him that the College expects to utilize his services on the staff at Centennial College and names his rank Program Coordinator, Coordinator II, and cites Article 4.06 of the Collective Agreement with the expectation that the Grievor is bound by it.

Exhibit 27 Memo dated June 12, 1978, to Debbie Banks from I.B. McCauley, President, advises her she is re-classified to Teaching Master from Instructor as of September 1, 1978, and states that a copy of the Teaching Master Class Definition is enclosed.

Exhibit 28 Letter dated March, 1982, from A.R. Devlin, Exe-cutive Vice-President, Academic, to Ms. D. Banks advises her the College expects to utilize her services for the 1982/83 academic year, states her rank as Teaching Master, refers to OPSEU Academic Negotiating Committee bargaining and cites Article 4.06 of the Collective Agreement and seeks her co-operation with it.

Exhibit 29 Letter dated April, 1984, from A.R. Devlin, Exe-cutive-Vice-President, Academic, to Ms. D. Banks and cites Article 4.06 in the previously described manner.

Exhibit 31 Memo dated April, 1982, from A.R. Devlin, Exe-cutive Vice-President, Academic, to Ms. P. Prentice confirms her Teaching Master status. An attached letter dated March, 1982, from the same source to Ms. Banks describes her rank as Teaching Master, with Coordinator Honourarium, refers to the collec-tive bargaining negotiations between OPSEU and C.A.A.T. committees re salary changes, sets out Article 4.06 implying she is bound by it.

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Exhibit 32

Exhibit 33

Appears to be the same as the letter attached to the Exhibit 31 Memo.

Letter dated June 30, 1982 from A.R. Devlin, Executive Vice-President, Academic, to Ms. Prentice indicates her position as Coordinator has been dropped and her appointment as Coordinator will not be made for 1982/83. It confirms that the earlier Memo (Ex. 31) confirmed her Teaching Master position with the College for 1982/83, and transfers her to a different division.

Exhibit 34 Letter dated April, 1983, from A.R. Devlin to Miss P. Prentice anticipates utilizing her services on the teaching staff for the 1983/84 year, describes her rank again as Teaching Master and cites Article 4.06.

Exhibit 35 Letter from A.R. Devlin, dated August 24, 1983, to Ms. Prentice confirms her transfer back to Continuing Education Division "in accord with the recent decision of the Board of Arbitration", describes her status as that of Teaching Master Coordinator II, and indicates intended compliance (financial) with the Board decision pending com-pletion of the legal proceedings.

Exhibit 36 Policies and Procedures Manual re Vacations (issued April, 1983) paragraph 1.

Exhibit 37. Position Description for Coordinator of Special Interest and Special Programs (incumbent Mr. Liverpool) sets out among the duties "to develop, supervise and coordinate courses and programs of a special interest nature", that the incumbent "requires 'special know-how' to recruit instructors, direct and guide instructors re teaching techniques" etc., with a teaching load of 21/2 hours a week.

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Exhibit 43 Excerpt from Policies and procedures Manual, issued April 1979, re Class Definition, Teaching Master.

Exhibit 45 Letter, dated June 12, 1981, from A.R. Devlin, Executive Vice-President, Academic, to Mr. D. Bell advises him of his appointment to the position of Coordinator II, recognizes his "contribution" as an "educator" and refers to the attached Terms of Employment, Appendix E2 which apply to instruc-. tional staff.

Exhibit 50 Classification Plans.

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Exhibit 51

Exhibit 52

Exhibit 54

Exhibit 55

Exhibit 57

Exhibit 58

Exhibit 59

Exhibit 60

Exhibit 61

Memo fran I.B. McCauley, Executive Vice-President, Academic, to Mr. H. Liverpool dated May 1975 re Arbitration Award - Academic Unit setting out a retroactive pay increase.

Letter dated March, 1974, from I.B. McCauley, Exe-cutive Vice-President, Academic, to Mr. H. Liverpool, titles him "Master, Coordinator" in the salutation, reappoints him to the faculty of the College and mentions that the C.S.A.O. bargaining unit's and C.A.A.T.'s negotiating committees' discussion re-garding increments and classification are ongoing so that salary changes cannot be specified.

Letter dated March, 1976, from I.B. McCauley, Executive Vice-President, Academic, to Mr. H. Liverpool re-appoints him to the College "Staff" for 1976/77, indicates his salary is "red-circled" above the eligible maximum, refers to negotiations between OPSEU and C.A.A.T. committees, gives him a Teaching Master Step 16 salary and gives him a rank of Program Coordinator II with an honorarium.

Letter dated March 1977, from and to the same parties as Exhibit 54 and as Exhibit 54 and

55, 55.

is esentially the same An acknowledgement of

letter Article

4.06 of the Memorandum of Agreement is set out. The College clearly expects him to consider himself bound by it.

Letter dated March, 1979, from A.R. Devlin to Mr. Liverpool and esentially the same as Exhibit 54, 55 . and 56. The same acknowledgement as Exhibit 56 is attached to the letter.

Letter dated March 1980, from and to the same parties and esentially the same as Exhibit 56.

Letter dated March 1981, from and to the same parties as Exhibits 57 aria 58 and esentially the same content as Exhibit 54 to 58. Article .4.06 of the Collective Agreement is set out in the body of the letter and Mr. Liverpool is expected to consider himself bound by it.

Letter dated March 1982 from and to the same parties as Exhibits 57 to 59, and esentially the same con-tent and format as Exhibits 54 to 59.

Memo from A.R. Devlin, Executive Vice-President, Academic, dated April, 1982, to Mr. H. Liverpool, Subject: Coordinator Appointments, states that his Teaching Master status is being confirmed at that time.

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Exhibit 62

Exhibit 63

Exhibit 64

Exhibit 67

Exhibit 68

Exhibit 69

Exhibit 70

Exhibit 71

Exhibit 72

. Devlin to. H. Liverpool, dated essentially the same as Exhibits

Letter from A.R. Devlin to H. Liverpool, dated April, 1983, is essentially the same as Exhibit 59.

Letter from A.R. Devlin to H. Liverpool dated April, 1984, indicates the College expects to utilize Mr. Liverpool's services on staff, does not set out his rank and sets out Article 4.06 of the Collective Agreement with the implication that he is bound by it.

Memo from A.R. Devlin to Ms. D. Banks, dated April 1982, Subject: Coordinator Appointments, states that her Teaching Master status is being confirmed.

Letter dated March 1977, from I.B. McCauley, Executive Vice-President, Academic, to Mrs. D. Banks re-appoints her to the Staff and refers to discussions re salary increments between C.A.A.T. and OPSEU.

Letter dated March 1978, from and to the same parties ranks Ms. Banks as a Program Consultant and refers to discussions re salary increments between C.A.A.T. and OPSEU. An acknowledgement setting out Article 4.06 is attached, as in Exhibit 56.

Letter dated March 1979, from A.R. Devlin to Mrs. Debby Banks, essentially the same as Exhibits 68 and 69.

Letter dated March 1980 to and from the same parties and esentially the same as Exhibits 69,and 70.

Letter dated March 1981 to and from the same parties, essentially the same as Exhibits 69 to 71, but incor-porating Article 4.06 in the letter.

Letter dated April 1983 to and from the same parties, and essentially the same as Exhibit 72.

Letter dated March 1976 from I.B. McCauley, Executive Vice-President, Academic, to Miss Patricia Prentice reappoints her to the College Staff fro the 1976/77 academic year, ranks her as Program Coordinator II, gives her a Step 15 Teaching Master salary with a coordinator honourarium and refers to discussions between C.A.A.T. and OPSEU re increments.

Exhibit 74

Exhibit 77

Letter from A.R March, 1979, is 56 . to 58.

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Exhibit 78

Exhibit 79

Exhibit 80

Exhibit 81

Exhibit 82

Exhibit 83

Exhibit 84

Letter dated March 1977, essentially the same as Exhibit 77.

Letter dated March 1978, esentially the same as Exhibits 77 and 78, with Article 4.06 set out as an attachment below the letter with the implication that she is bound by it.

Letter dated March 1979, essentially the same as Exhibit 79, except from A.R. Devlin.

Letter dated March 1980, essentially the same as Exhibit 80.

Letter dated March 1981, essentially the same as Exhibit 79, 80 and 81, incorporating Article 4.06 in the body of the letter.

Instructor Schedule re Prentice, dated January 5, 1983.

Package of memos and letters from Executive Vice- President, Academic, to and/or about C.A. Dziewa (now Driscu), similar to Exhibits 77 to 82.

Margaret Schaible, Executive Assistant to the

Executive Vice-President, Academic, was called to give evidence

by the Employer. She was unable to advise this Board of any

provisions of the Collective Agreement that did not apply to

the Grievors. She advised this Board that the designations

of the Grievors as Teaching Masters in the appointment letters

was a "mistake", and that they were always, considered admin-

istrative personnel. She was unaware as to whether union dues

Were deducted automatically by the College from the Grievors'

salaries (see below).

One of the present Grievors, Ms. Prentice, grieved

an earlier transfer under the Collective Agreement, and the Em-

ployer considered itself bound by the Award of the Arbitrator.

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George Yaworsky, Dean of Continuing Education, gave

evidence for the Employer. He agreed with the statement that

until the present time, the Grievors had been covered by the

Collective Agreement. He acknowledged that the Grieivors' contracts

classify them as Teaching Masters, but pointed out that the con-

tracts say Coordinator in addition. He acknowledged that the

Grievors taught, as Programme Coordinators, but were never assigned

a formal teaching schedule.

Carol Ann Driscu, formerly Dziewa, identified her

job title as "Teaching Master, Coordinator II" from the appoint-

ment letter. She stated that her job duties included all the

items under a) and c) in the Class definition of Teaching Master,

plus the duties in the final paragraph and academic counselling

under b) in Exhibit 50. She stated that unlike the Program Co-

ordinators, administrators report to the Vice-President of Admin-

istration. Program Coordinators, Teaching Masters and Librarians

report to the Vice-President, Academic. She Pays union dues and

is a union member.

Eileen Burrows, Coordinator in the. Diploma Nursing

Programme for the last 10 years and President of Local 558 stated

that from 1974 to 1982 she had had no teaching assignment and

received a two month vacation each year in that period, and that

two other Health Science Coordinators, Glennie and Short, have

not taught but received two months' vacation. She advised this

Board that an internal grievance brought by Lynn Suo, who was

seconded from the English Department to the Continuing Education

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Division as a Program Coordinator, resulted in her 1 month

vacation entitlement being augmented to 2 months.

Hermus Selwyn. Liverpool advised the Board he first

became a Coordinator in 1968 and was first classified as a Teaching

Master in September, 1972. His classification has not changed

since that time,.he stated.

He taught for about 5 years before his sabbatical

year in 1977. Three months prior to October 15, 1984, he taught

a class in accounting. Union dues have been deducted from his

salary for about three years, he stated. On cross-examination he

agreed when it was put to him, that he was not a member of the

Union, but also that dues were simply deducted in accordance with

the Collective Agreement.

As early as March 1978 (Exhibit 56) his salary was

described as in the Teaching Master scale, and as late as March

1982 (Exhibit 60) his rank was described as Teaching Master.

He considered the distinction between the two terms - Teaching

Master and Coordinator - as "internal, a play on words". His

classification was never changed from 1972 to 1984, the years

covered by the Exhibits 52 to 65 and others. He receives a

Step 16 Teaching Master salary and a Coordinator allowance.

Since 1972 he was never told he was not covered by the Collective

Agreement and never told he was management and never taken off

the faculty seniority list.

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Debra Lynn Banks identified her classification as

"Coordinator II, Teaching Master". Her pay, is calculated as a

Teaching Master with an additional allowance for Coordinator II.

Like the other Grievors, when she accepted the management offer of because

one month vacation instead of two, it was/she wasn't aware of any

other entitlement, and she had no reason at the time to question

management's statement of her entitlement. She had not ever

received any indication from management that she was not under

the Collective Agreement or that she was part of management.

She usually teaches once a semester as a Coordinator.

Ms. Banks, when shown Exhibit 68, indicated she

believed the titles Instructor and Program Consultant were inter-

changeable that she was never referred to as an Instructor though

her salary was calculated on that basis. However, since March

1979 (Exhibit 70) her salary as Program Consultant has been cal-

culated on the Teaching Master scale. In a letter of March 1981..

(Exhibit 72) she was identified as a. Program Coordinator for the

first time. She changed "roles" in 1980, she stated,.becoming a

Coordinator instead of an Instrtictor-Program Consultant and was •

paid as a Teaching Master with a Coordinatoi Allowance per the

Collective Agreement. She was never informed that she was not

a Teaching Master.

About a year after she began to work at the College

she observed that faculty got two months' vacation, and she inquired,

because she was considered faculty and was told by her Chairman

and a fellow Coordinator, not to "rock the boat" or they'd be put

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back on the Hay system.

Patricia Ann Prentice commenced her employment at

Centennial College in the Continuing Education Division as a

Teaching Master-Coordinator II on September 17, 1973 and con-

tinued there until September, 1982. She successfully grieved

her involuntary transfer to Health Sciences and was returned to

her old position in Continuing Education as of September 1983.

In 1982/83 she was paid as a Teaching Master only, but after the

grievance she was paid the Coordinator Allowance retroactive to

the date of transfer. She was laid off as Teaching Master-

Coordinator II in September, 1984. Before her reinstatement,

during her transfer to Health Sciences, she received two months'

vacation.

Ms. Prentice was classified as a Teaching Master

from 1973 to 1984 for salary purposes, and at Step 16 to reflect

her education. She had the additional status of Coordinator

from 1973 to 1984 with the exception of the 1982/83 year.

She never got any indication Coordinators weren't

in the bargaining unit or under the Collective Agreement from

management and was never advised she was part of management.

She stated she pays Union dues.

Management did not object to her previous grievance

on the basis of her not being in the bargaining unit.

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She had accepted one month vacation because she

didn't know her entitlement.

As a Coordinator she taught from time to time.

Article 1 ..\of the Collective Agreement states:

RECOGNITION

1.01 The 'Union is recognized as the exclusive collective bargaining agency for all academic employees of the Colleges engaged as. teachers (including teachers of Physical Education), counsellors and librarians, all as more parti-cularly set out in Appendix I hereto save and except Chairmen, Department Heads and Directors, persons above the rank of Chairman, Department Head or Director, persons covered by the Mem-orandum of Agreement with the Ontario Public Service Employees Union in thesupport staff bargaining unit, and other persons excluded by the legislation and teachers, counsellors and librarians employed on a part-time or sessional basis.

Academic employees includes teachers. The position of Coordin-

ator is, from reference to the job descriptions, clearly

predicated on the Grievors' teaching ability;'experience and '

knowledge. Notwithstanding that the bulk,of their duties can

be characterized as administrative, the basis of those duties

is their intense expertise in the educational field with respect

to teaching and education as a whole. They could not be Coordin-

ators if they were not, first and foremost, Teaching Masters.

That is why as Coordinators they receive merely an Honorarium over

and above their Teaching Master salaries.

13/

13,

The Grievors' Union dues are deducted by manage-

ment. Management has never objected to their grievances on

this jurisdictional point and has been bound by earlier arbi-

tration awards. How can they now say the Grievors are not

within the, bargaining unit?

Examining the Collective Agreement further, Appendix

I (a) Salary Schedules, is structured such that it first sets

out

a) Teaching Masters and Counsellors,

and within that section is a sub-section headed:

ALLOWANCES - TEACHING MASTERS

and under that heading are sub-sections for

- Senior College Master Allowance

and

- Co-ordinator Allowance.

The lay-out within Appendix which is incorporated

by reference in Article I, demonstrates that the parties clearly

intended that Coordinators fall within the designation of

Teaching Master in the Collective Agreement, irrespective of.

hours spent teaching.

It is that intention which is reflected in the de-

signations of the Grievors as Teaching. Masters in the documentary

evidence. The designations were not a "mistake".

14/

14.

I agree with the award of the majority regarding

the first two preliminary objections.

However, I disagree with the majority reagrding the

status of the Grievors with respect to the Collective Agreement.

In my opinion there was very little evidence before

this Board to support the statement that "Neither the grievors

nor any other Consultants in similar positions were consdiered

to be or treated as part of the bargaining unit" under the memo-

randum of understanding.

This was not simply "a matter of adopting the

Teaching Master. salary scale for management exclusionary employees.

Coordinators are recognized as Teaching Masters within Appendix I.

The evidence disclosed that aside from vacations

the Grievors have been treated as members of the bargaining

unit for all other purposes. No evidence was led to establish

they did not receive e.g. all othei• benefits to which bargaining

unit members are entitled. Two Coordinators' grievances were

processed to arbitration.

The evidence disclosed that the only purpose for

which the Grievors were not treated as part of the bargaining

unit was re Article 5.01 - Vacations.

15/

S. D. Kaufman

Union Nominee

15.

I would have found that the Grievors are members

of the bargaining unit and proceeded to determine the grievance

on the merits.

Dated at Toronto this 8th day of February, 1985.