HomeMy WebLinkAboutUnion 14-11-17IN THE MATTER OF AN ARBITRATION
between
FANSHAWE COLLEGE
(“the College”)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 110
(“the Union”)
UNION GRIEVANCE NO. 2013-0110-0017
CONCERNING A JOB COMPETITION
IN THE SCHOOL OF NURSING
PRELIMINARY AWARD REGARDING JURISDICTION UNDER
ARTICLE 32.09
BOARD OF ARBITRATION:
PAMELA COOOPER PICHER - CHAIR
SHERRIL MURRAY - UNION NOMINEE
CARLA ZABEK - COLLEGE NOMINEE
APPEARANCES FOR THE UNION:
Lesley Gilchrist - Grievance Officer
Daryl Bedford - President, Local 110
APPEARANCES FOR THE COLLEGE:
Robert Atkinson - Counsel
Jerry Tapley - Labour Relations Consultant
Sandra DeLuca - Chair, School of Nursing
Julia Boffa - Human Resources Consultant
APPEARANCE FOR THE INCUMBENT:
Jodi Hall - Incumbent
A hearing in this matter was held in London, Ontario on
September 16, 2014.
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PRELIMINARY AWARD
Local Union 110 filed a Union grievance dated 2013/05/06 alleging the
following:
Local 110 grieves that Fanshawe College acted in
bad faith and violated Article 27 of the Collective
Agreement when posting a vacancy in the School of
Nursing (posting number 201300047). The stated
requirements are not related to the professional
qualifications required for teaching in the School of
Nursing and [are] sufficiently narrow to exclude all
known aspiring applicants save one.
The remedy sought by the Union is to have the College re-run the posting with
qualifications that are reasonably related to the duties of the position. In the
alternative, the Union asks that the College create a new position.
At the outset of the proceeding, the College raised a preliminary objection
to the Board’s jurisdiction. Relying on article 32.09 of the collective agreement,
the College asserted that the Union was not entitled to file a Union grievance in
respect of the matter grieved. Article 32.09 stipulates the following:
Union Grievance
32.09 The Union or Union Local shall have the right
to file a grievance based on a difference directly with
the College arising out of the Agreement concerning
the interpretation, application, administration or
alleged contravention of the Agreement. Such
grievance shall not include any matter upon
which an employee would be personally entitled
to grieve and the regular grievance procedure for
personal or group grievance shall not be by-passed
except where the Union establishes that the
employee has not grieved an unreasonable
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standard that is patently in violation of this
Agreement and that adversely affects the rights of
employees.
[emphasis added]
In the instant matter, the parties agree that the grievance involves a
“matter upon which an employee would be personally entitled to grieve … ”
Accordingly, it is common ground that for the Union to be entitled to file a Union
grievance, the Union must establish that the situation falls within the three-part
exception to the prohibition against the Union filing a Union grievance in
circumstances where an individual would be personally entitled to file a
grievance. The three elements to the exception contained in article 32.09 are as
follows: first, that the employee has not grieved an unreasonable standard;
second, that that unreasonable standard is patently in violation of the collective
agreement, and, third, that that unreasonable standard in patent violation of the
collective agreement adversely affects the rights of employees.
The facts relevant to the preliminary objection are largely undisputed and
may be summarized below:
1. A job posting for the position of Professor in the School of Nursing was
posted on April 12, 2013 for both internal and external candidates.
2. No internal candidates applied for the position. Eight external
candidates did apply, including the incumbent, Ms. Jodi Hall.
3. No potential internal candidate filed a grievance regarding this job
posting.
4. The “Specific Qualifications” for the Professor position in the School of
Nursing that were listed in the posting departed somewhat from those
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that had appeared in previous Professor postings and placed particular
emphasis on experience in research and scholarship.
5. Background circumstances detailed by counsel for the College relating
to the research and scholarship components listed in the job posting
were for the purposes, only, of the College’s preliminary challenge to
the Board’s jurisdiction and, for that purpose, were not disputed by the
Union. Those enumerated facts include the following:
a. The School of Nursing has three programs: first, a 30 week
Personal Support program; second, a two year Practical
Nursing program; and, third, a four year Bachelor of Science
degree Nursing program (BScN), which is run in collaboration
with a similar BScN program at the University of Western
Ontario. The primary focus of the job posting in issue was in
respect of the third program, the BScN program.
b. The Canadian Association of Schools of Nursing (CASN) first
accredited the collaborative Bachelor of Science Nursing
programs at Fanshawe College and the University of Western
Ontario in 2006. One of the multiple factors assessed by CASN
was how well each of the two schools was able to provide the
infrastructure for research and scholarly work by the faculty
involved in and for the respective BScN programs.
c. When Fanshawe College’s BScN program was first accredited
by CASN in 2006, it was determined that the College’s research
capacity was not up to the standard required by CASN.
Accordingly, one of the initial conditions placed on Fanshawe for
CASN’s accreditation was that it would demonstrate that it was
developing the requisite research infrastructure, along with an
increase in the number of faculty engaged in research.
d. Accreditation by CASN is performed every seven years.
Accordingly, the second accreditation process for the
collaborative Bachelor of Science Nursing programs at
Fanshawe College and the University of Western Ontario was in
2013. Given such circumstances, in the years between the first
and second accreditations, the College focused on being able to
demonstrate that the School of Nursing at Fanshawe was
building its capacity for research and scholarship.
e. It was against the backdrop of the upcoming accreditation that
the College hired Ms. Jodi Hall, who was ultimately selected to
fill the Professor position in issue. In both 2011-2012 and 2012-
2013, Ms. Hall was hired on a part-time contract basis as a
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Research Advisor to determine whether a Research Advisor
could assist in helping the Fanshawe School of Nursing meet
the requisite research and scholarship standards required by
CASN. Under those contracts, among other functions, Ms. Hall
became involved in helping the faculty develop research
projects.
f. In the fall of 2013, an additional factor developed. A curriculum
review of the joint BScN programs resulted in a decision to
reverse the second and third years of the joint program. With
the curriculum reorganization, Fanshawe College’s faculty
became obligated to offer a course in Research Methods
commencing in the fall of 2013, as well as a new course in
Informatics that was also research based.
g. The College, according to counsel, determined that the part-
time contract position had worked well in developing
Fanshawe’s research and scholarship capacity and concluded
that they needed to make the position more permanent.
h. According to counsel for the College, it was in view of the
circumstances set out above that Fanshawe College highlighted
experience in research and scholarship in the “Specific
Qualifications” and “Posting Summary” in the instant posting for
the full-time Professor in the School of Nursing.
The Union maintains that the requirements and preferences in most all of
the “Specific Qualifications” detailed in the posting are “patently in violation” of
article 27.11, within the meaning of article 32.09 of the agreement. The Union
asserts that they are overly stringent and specific and, moreover, create an
“unreasonable standard” within the further meaning of article 32.09, by virtue of
their not being reasonably related to the job of Professor in the School of
Nursing. By way of example, the Union observes that in prior postings for the
Professor position, a PhD in a health related field was “preferred” but not
“required”. Additionally, the Union emphasizes that while some scholarly related
experience was regularly required, it was never to the level of specificity
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contained in this positing. The Union further contends that the College designed
these unreasonable qualifications in bad faith, so that only the incumbent would
be able to qualify for the job. Through this means, the Union argues, the College
intentionally created a chilling effect on applications that might otherwise have
been forthcoming from other potential candidates.
Additionally, the Union submits that by setting overly stringent and specific
qualifications that were not reasonably related to the position requirements and,
moreover, were intentionally designed to create a chilling effect on applications
generally, management engaged in a breach of such significance regarding the
integrity of job postings that it raised an issue of concern for the Union’s
membership as a whole. On this basis, the Union argues that the College’s
wrongdoing bought the circumstances within the scope of the third element of the
exception in article 32.09 through the adverse impact it had on the rights of
employees generally.
The College acknowledges that the posted position listed different
qualifications from those in previous postings for similar Professor positions but
asserts that they represented the need to have a Professor qualified both to
develop the research and scholarly component of the job in order to meet the
requirements imposed by CASN for the accreditation of its Bachelor of Science
Nursing program and to teach two new research based courses that were to be
offered for the first time in the fall of 2013. It is the position of the College that if
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this specific position of Professor, with its revised qualifications emphasizing
research and scholarship, had not been created, the 2013 accreditation that was
given by the CASN might not have been forthcoming.
The College strongly denies that it tailored the requisite qualifications to
the incumbent’s resume and contends that the qualifications were designed,
solely, to reflect the requirement for the College to increase its capacity in
research and scholarship that had risen steadily in the years between the CASN
accreditations in 2006 and 2013.
DECISION REGARDING THE COLLEGE’S
PRELIMINARY OBJECTION TO THE BOARD’S JURISDICTION:
Article 32.09 precludes the Union from filing a grievance on “any matter
upon which an employee would be personally entitled to grieve… except where
the Union establishes [a] that the employee has not grieved an unreasonable
standard that [b] is patently in violation of this Agreement and that [c] adversely
affects the rights of employees.”
As noted at the outset, the parties agree that an employee would have
been personally entitled to grieve the posting in issue. Accordingly, for the Union
to establish its right to file the instant Union grievance, it must demonstrate that it
meets the three-part exception set out in article 32.09.
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The Union did not dispute the submission of the College that the Union
was required to demonstrate the existence of all three of the elements contained
in the exception to trigger its application. The need for the Union to meet all three
of the criteria was well set out in Re Durham College and OPSEU, Local 354, a
decision of a board of arbitration chaired by Paula Knopf, dated November 1,
2012, at page 6, as follows:
It is well accepted in the arbitral jurisprudence in this
sector that all three criteria must be satisfied. If any
one of the three tests has not been met, the grievance
is not arbitral as a Union Grievance, see George
Brown College and OPSEU, (Devlin), [dated June 8,
1994] at p. 5.
The jurisprudence relating to the scope of the three elements of the
exception is also well settled. For example, the principles concerning the
evaluation of whether an alleged unreasonable standard is “patently in violation
of this Agreement” were set out by Arbitrator David Starkman in Re St. Lawrence
College and OPSEU, Local 417, dated November 21, 2011, at page 5, wherein
he adopted the summary of the related jurisprudence provided in Re Loyalist
College and OPSEU, Local 420, a decision of Arbitrator K.G. O’Neil, dated May
29, 2001, as follows:
The words ‘patent violation’ have been held to
create a high standard (Seneca College and
OPSEU, P. Picher, January 31, 1991), to mean the
violation has to be crystal clear (Sir Sanford Fleming
and OPSEU, Brent, April 25, 1988), or “leap from the
page” (Centennial College and OPSEU, M.[G.]
Picher, January 20, 1992). In Fanshawe College and
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OPSEU, (Kruger, September 16, 1997), the Board
decided that a case that was arguable on both sides
was ‘not a patent violation’ …
[emphasis added]
It is noted that this summary of the interpretation of “patent violation” was more
recently referred to with approval by Arbitrator Knopf at page 6 of Re Durham
College, supra.
Respecting the third criterion in the exception, that being that it “adversely
affects the rights of employees”, Arbtrator Knopf adopted with approval the
conclusion of Arbitrator Howard Brown found at page 10 of Re Fanshawe
College and OPSEU, Local 110, a decision dated October 30, 2009. At page 7 of
Re Durham College, Arbitrator Knopf stated the following:
As recognized by Arbitrator Brown … Article 32.09
is intended to allow for Union Grievances to be
processed in situations that could have been
individual grievances only where it would involve
matters that ‘impact broadly on members of the
bargaining unit.’
[emphasis added]
In the instant matter, the Union contends that the Specific Qualifications
contained in the posting for Professor in the School of Nursing set an
“unreasonable standard that is patently in violation of [the] Agreement” because
they were overly stringent and specific, were not reasonably related to the posted
position and, instead, were specifically tailored to reflect the resume of one
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external candidate. The Union asserts that that “unreasonable standard that
[was] patently in violation” of article 27.11 had such a chilling effect on potential
internal candidates that it adversely affected the rights of employees, generally,
to have access to a fair system of job postings. The Union contends that
notwithstanding the absence of a grievance from any potential internal candidate,
the Union has an obligation to monitor and protect the integrity of job postings to
ensure that posted qualifications are reasonably related to the job and do not
create a chilling effect for employees generally.
The Union clarified that for the purposes of the College’s preliminary
objection, it would not lead evidence aimed at establishing that the listed
qualifications created a chilling effect on internal candidates. Instead, the Union
asserted that the chilling effect could be reasonably inferred from what the Union
described as the extraordinary detail and elevated standards set out in the
itemized “Specific Qualifications” contained in the job posting.
Those “Specific Qualifications”, most of which are contested by the Union
as being unrelated to the Professor position and, thereby, unreasonable, were as
follows:
- PhD in a health related field required
- Minimum of 5 years experience in design, management,
analysis and dissemination of health-related research
- Demonstrated research and teaching skills
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- Experience in capacity building/training of novice
researchers in the design and conduct of research studies
- Strong knowledge of and experience with protocols and
guidelines related to research studies
- Demonstrated publication record in both qualitative and
quantitative research, and with vulnerable populations
- Advanced skills in working with various methodologies and
theoretical lenses
- International experience is an asset
The “Posting Summary” of the Professor position set out in the job posting
provided as follows:
A full-time Professor at Fanshawe College is
responsible for providing academic leadership and for
developing an effective learning environment for
students. This position will work with faculty and
students to coordinate, mentor and guide all
research activities by providing academic and
technical assistance in areas of research design,
data collection and analysis and dissemination.
The successful candidate will teach courses primarily
in the BScN program with occasional teaching in the
PN program. This position will work collaboratively
with the Centre for Research and Innovation.
[emphasis added]
It is noted that the Union raised no objection regarding the appropriateness of
this Summary of the posted position.
The Board will focus, initially, on the first two elements of the three-part
exception to the prohibition in article 32.09 against the Union filing a Union
grievance in circumstances where an employee would be personally entitled to
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grieve, those being whether an employee has not grieved an “unreasonable
standard” that is “patently” in violation of the collective agreement.
The Board accepts, for the purposes of the preliminary objection, the
undisputed submission of the College that when Fanshawe College’s BScN
program was first accredited by CASN in 2006, it was determined that
Fanshawe’s research capacity was not up to standard and had to be improved.
The further uncontested submission of the College accepted by the Board is that,
for its 2013 accreditation, Fanshawe needed to demonstrate that it was
developing the requisite research infrastructure and an increase in the number of
faculty engaged in research. Moreover, beginning in the fall of 2013, for the
BScN joint program, Fanshawe became newly obligated to offer courses in both
Research Methods and Informatics, each of which is research based. T hese
were among the pertinent background circumstances that existed when, in April
of 2013, the College developed its job posting for Professor in the School of
Nursing, inclusive of its “Specific Qualifications”.
The first two questions to arise in assessing the College’s preliminary
objection are (a) whether the “Specific Qualifications”, together or apart,
constitute an “unreasonable standard” by virtue of their being overly stringent and
specific and not reasonably related to the requirements of the position and (b)
whether that unreasonable standard “is patently in violation” of the agreement.
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Having carefully reviewed the above described background to the job
posting, as well as the description of the job detailed in the “Posting Summary”,
the Board is satisfied that the following “Specific Qualifications” are not, on their
face, overly stringent and specific; nor do they lack a due relationship to the
requirements of the position. The Board concludes that the following “Specific
Qualifications” are not, in short, unreasonable on their face: (1) requirement for a
“PhD in a health-related field”; (2) requirement for “five years experience in
design, management, analysis and dissemination of health-related research”; (3)
“Demonstrated research and teaching skills”; (4) “Experience in capacity
building/training of novice researchers in the design and conduct of research
studies”; (5) “Strong knowledge of and experience with protocols and guidelines
related to research ethics”, and (6) “Advanced skills in working with various
methodologies and theoretical lenses”
Given that the occupant of the posted Professor position is required to
“work with faculty and students to coordinate, mentor and guide all research
activities by providing academic and technical assistance in areas of research
design, data collection and analysis and dissemination” as well as “work
collaboratively with the Centre for Research and Innovation”, the Board
concludes that all of the above described qualifications, along with their
emphasis on demonstrated experience in research and scholarship, would
appear to be, on their face, directly related to the job of Professor as described in
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the Summary in the job posting and as supported by the uncontested
background to this posting.
Nor, the Board finds, is the further requirement for a “Demonstrated
publication record in both qualitative and quantitative research…” unreasonable
on its face. While the addition of “and with vulnerable populations” may seem to
be an unnecessarily narrow limitation regarding the subject matter, the
description of “vulnerable populations” is broad and the Board would need to
hear evidence regarding further details of the position to determine whether the
stipulated subject matter requirement for the publication was unreasonable. It is
certainly not “patently in violation of the Agreement” within the terms of article
32.09 of the collective agreement.
The same comment may be made with respect to the stipulation that,
“International experience is an asset”. The Board would need to hear evidence
to determine whether the itemization of international experience as an asset was
unreasonable. Noting that the College describes itself in the job posting as “… an
equal opportunity employer … committed to equity, value diversity, and
welcome[ing of] applicants from diverse backgrounds”, the Union could face a
high hurdle in seeking to demonstrate that it would be unreasonable to view
international experience as an asset.
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Accordingly, having regard to the foregoing, even if ultimately, in a
consideration of the grievance on its merits, the Board were to conclude that one
or more of the elements within the Specific Qualifications set out in the job
posting was unreasonable, the Board would be unable to further conclude, for
the purposes of interpreting and applying article 32.09, that any one of the
stipulated qualifications, taken separately or together, constitutes an
“unreasonable standard that is patently in violation of [the] Agreement.” None of
these Specific Qualifications “leaps from the page” as being unrelated to the
duties of the posted Professor position. For none is it “crystal clear” that the
Specific Qualifications are unreasonable by virtue of their being unrelated to the
job.
For the Union to establish that the Specific Qualifications are not
reasonably related to the position, detailed evidence would be required relating to
the circumstances existing at the time in respect of Fanshawe’s BScN program
and the related accreditations of CASN. As noted by Arbitrator Knopf in Re
Durham College, supra, pages 6-7, “Something that requires detailed evidence[,]
involves differing situations and demands the weighing of testimony falls far short
of meeting the high burden of establishing a ‘patent violation’ of the Collective
agreement.”
The Board turns, finally, to the third element of the exception, that being
whether the alleged unreasonable standard that, allegedly, is in patent violation
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of the collective agreement “adversely affects the rights of employees”. Upon
review of the circumstances and submissions of the parties, the Board is unable
to conclude that the adverse effect of a breach of article 27.11, in the
circumstances of this matter, would extend to employees generally. Instead, the
Board is satisfied that any adverse effect of any violation of the agreement that
might ultimately be found in this matter would be limited to potential employees
who might have wanted to apply for the job as posted.
Moreover, the evidence and submissions presented for the purposes of
the preliminary objection offer no validity to the suggestion of the Union that the
College “rigged” the Specific Qualifications for the job or “tailored” them to mirror
the specific background and experience of one candidate. Even if a Specific
Qualification could ultimately be found to be unreasonable, there would be no
basis for a further conclusion that such a breach rendered the job competition
unfair in a manner that could raise any violation to the level of general concern
for the membership as a whole.
Accordingly, in the result, for the reasons set out, the Board concludes
that the Union has been unable to establish that an “employee has not grieved
an unreasonable standard that is patently in violation of [the] Agreement and that
adversely affects the rights of employees.” The Union’s failure to demonstrate the
existence of any one of the three criteria for the exception contained in article
32.09 would be sufficient to render the Union’s grievance inarbitrable. In this
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situation, however, the Board is further satisfied that none of the three criteria
has been established by the Union.
For the reasons set out above, therefore, the Board allows the preliminary
objection of the College and concludes that the Union’s grievance has been filed
in violation of article 32.09 of the collective agreement and, therefore, is
inarbitrable.
Dated at Ottawa this 17th day of November 2014.
“Pamela Cooper Picher”
Pamela Cooper Picher
Chair
I concur. “Carla Zabek”
College Nominee
I dissent. “Sherril Murray”
Union Nominee