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HomeMy WebLinkAboutUnion 96-03-2195B289 FANSHAWE VS OPSEU IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (the College) -AND- ONTARIO PUBLIC SERVICE EMPLOYEES' Union (the Union) AND IN THE MATTER OF A UNION GRIEVANCE OPSEU FILE #95B289 BOARD OF ARBITRATION A.M. Kruger- Chairman H.J. Cook- Member J. McManus- Member APPEARANCES For the College- R.J. Atkinson - G. Rozell For the Union- M.A. Kuntz - J. Crawford - L. Watt - A. Cummings HEARING AT LONDON, ONTARIO. JANUARY 30, 1996 At the outset of the hearing the parties agreed that this Board had jurisdiction to hear this matter. There is no dispute about the pertinent facts and, indeed after presenting statements of agreed facts to the Board, the parties proceeded directly to argument without calling witnesses. The grievance involves a dispute concerning the appropriate classification and wage rate for a position held by Ms. Corinne Campbell and filled by temporary employees while Ms. Campbell is on leave of absence from this bargaining unit position. For some time prior to September 1994 Ms. Campbell was classified as a Support Service Officer C. While this position is normally in Payband 11, Ms. Campbell's job was considered "atypical" and accordingly she was paid the higher wage rate of Payband 12. The reason for the atypical rate was related to the unusual duties performed by Ms. Campbell. She worked in the Accounting Services Department where most of her time was spent on Payroll and Benefits, one of four divisions in that department. In addition, in the absence of her superior, Ms. Gingrich, she was responsible for assigning daily work to all fifteen employees in the department. Also she assisted Ms. Gingrich in long-range planning for the department as well as in setting department goals and evaluating the degree of success in achieving these goals. Finally, when required, she also assisted by working in the other three areas of the department, particularly Accounts Payable. Sometime prior to the summer of 1994, there was a reorganization which altered the jobs performed by Ms. Gingrich and Ms. Campbell. The Account Services Department was abolished. Ms. Gingrich's responsibilities would now be limited to supervising six employees in Payroll and Benefits (including Ms. Campbell) and she would report to the head of Human Resources Department. The other three areas for which she had been responsible would no longer be under her supervision and would be moved to the Financial Services Department. These changes were not fully implemented until the last week of July 1994 when the various parts of the former Accounting Services Department were physically moved to their new departmental homes. Around the time that this move took place, Ms. Campbell applied for a managerial position at the Strathroy campus and was selected in early August to fill this position effective Tuesday September 6, 1994. Because there was some uncertainty about the future of this managerial job, the College agreed that Ms. Campbell not resign her bargaining unit position and instead granted her a leave of absence from that position. This leave was still in effect at the time of our hearing. To complicate matters further, Ms. Gingrich began a three week vacation on August 12 and did not return to work until Tuesday, September 6. Soon after her return, she reclassified Ms. Campbell's position, removing its atypical status and thereby reducing its rate of pay from Payband 12 to Payband 11. Her proposal was sent to the Classification Committee and approved toward the end of September. Because the incumbent, Ms. Campbell was on leave of absence, the reclassified job was advertised as a temporary position for the period October 17, 1994 to September 6, 1995. There were no internal applicants for the position. It was filled by an external candidate, Mr. C. Springer, who was discharged after five weeks on the job. He was replaced by another external candidate, Ms. C. Wayne, who was still in this temporary position at the time of our hearing. Prior to August 12, 1994, Ms. Gingrich had a discussion with Ms. Campbell informing her that the reorganization would alter Ms. Campbell's position by removing some of her current duties. That discussion was not very specific as to the changes likely to occur. Between the time Ms. Campbell was awarded the management job and September 6, 1994, Ms. Rozell, the Acting Director of Human Resources, contacted Ms. Campbell and told her that her bargaining unit position was likely to be reclassified in a way that would reduce its pay level to Band 11 from Band 12, but assured her that should she return to this position from her leave of absence, her rate would be red-circled at the Band 12 level. The Issue Before This Board The Union alleges that the reclassification procedure was improper, resulting in a downgrading of this position to Band 11 to the detriment of the temporary employees hired to replace Ms. Campbell during her leave of absence. The Union alleges a violation of Appendix D of the collective agreement, specifically paragraph 2 of Appendix D which states: The rate to be paid to such an employee shall be the appropriate rate applicable to the classification of the replaced employee, subject to progression steps applicable to the replacing employee where appropriate. The Union asks that we find a violation of Appendix D and order full retroactive pay at the Band 12 level to both temporary employees in Ms. Campbell's position. The College's position is that there was no violation of Appendix D. In the alternative, the College's position is that, even if a violation occurred, in the absence of a grievance from Ms. Campbell, Mr. Springer or Ms. Wayne, it would be inappropriate to award retroactive pay in response to this grievance which is a Union grievance. The Union's Argument There is no dispute that Article 3 of the agreement (Management Functions) gives the College the right to classify positions, but that right is not unfettered. lt is explicitly made subject to "the right to lodge a grievance" and it must be done in good faith and not in a manner that unfairly benefits the College to the detriment of the Union or members of the bargaining unit. The Union argues that the delay in reclassification until after Ms. Campbell's departure on September 6 prejudiced the outcome of the reclassification to the detriment of the temporary employees filling the position. Had Ms. Campbell occupied the position at the time of reclassification, it is not at all certain that Ms. Gingrich would have reached the conclusion she did. The College had decided on the reorganization long before September 6 and long before Ms. Campbell took the management job. It is the Union's position that the job should have been reviewed while Ms. Campbell was still performing the work, and then when she left, the temporary replacements should have been classified and paid at the rate she received just prior to leaving the position. Furthermore, the delay meant that Ms. Campbell, when she learned of the reclassification, had no reason to launch a grievance. She was now in a management position and had been guaranteed her old payband would be for her should she return to red-circled her bargaining unit position. Had the reclassification occurred earlier and resulted in a change to her detriment, Ms. Campbell might well have grieved and had her job restored to the band 12 level. The College violated article 7.2.2 by not providing Ms. Campbell with her new Position Description Form when her job was reclassified. Perhaps, if she had seen this form. the outcome might have been different. In the Union's opinion, the "appropriate rate applicable to the classification of the replaced employee" was the rate prevailing when Ms. Campbell went on leave September 6, 1994 and not the rate advertised in the job posting subsequent to Ms. Gingrich's later review and reclassification of the position. Under paragraph 2 of Appendix D replacements are hired to do the job Ms. Campbell had been doing and not the job reclassified after she left. The temporary replacement employees hired pursuant to Appendix D did not grieve but that is understandable given their precarious employment status at the College. These employees are explicitly excluded from the provisions of all sections of the agreement except for Appendix D and their right to grieve is limited to matters arising under Appendix D. While they could grieve this matter, they would be reluctant to do so because they could be terminated without recourse at the will of the College. For this reason the Union stepped in to protect its interest and the interest of these and other employees who might be hired in the future under similar circumstances. The College's Argument The College denies any improper action on its part or any violation of Appendix D. While the decision to reorganize was made prior to the summer, the delay in reclassifying this position until after September 6 was understandable. First, the Pay and Benefits unit had to be moved physically to its new location before Ms. Gingrich was able to assess fully how it would now operate. Then Ms. Campbell was awarded the management position . Soon after this Ms. Gingrich went on vacation. In any case nothing in the collective agreement limits the College's discretion in deciding when to evaluate and reclassify positions. The reclassification process used here was the normal process followed when jobs change. Ms. Campbell was well aware of the impending change in Payband having been informed both by Ms. Gingrich and Ms. Rozell prior to the time she left the position on September 6. When replacements were hired, Ms. Campbell's job had already been reclassified and Band 11 was the "appropriate rate" for them. If the Union's position were to be upheld, it would result in the absurd situation where temporary employees would enjoy pay protection denied to permanent employees. There is no dispute that had Ms. Campbell remained in the position, it could have been reclassified and her only recourse would be to grieve the reclassification. What the Union is asking for is that in cases where temporary employees are hired no such reclassification can occur subsequent to the date that the incumbent temporarily vacates the position. This would guarantee the temporary employee a classification and pay rate throughout his or her term of employment, something not available to permanent staff. Nothing in Appendix D or any other provision of this agreement would support this unusual and absurd result. Finally, the College argues that even if the Board accepted the Union's case and found a violation of the agreement, in the absence of grievances by the adversely affected employees, it would be improper to award retroactive pay to Mr. Springer or Ms. Wayne. In support of this position, the College filed with the Board an earlier unpublished decision involving these parties in a matter arising from a Union grievance. The Award As we indicated earlier, the question before us is whether the College acted in violation of paragraph 2 of Appendix D by reclassifying the position in question after Ms. Campbell left the job and thereby paying the temporary replacements less than Ms. Campbell had been paid. We find that the College followed the normal procedure in reclassifying this position except for its failure to provide Ms. Campbell with a copy of the new Position Description Form as required under Article 7.2.2. This violation could have been grieved by Ms. Campbell but she chose not to do so and we will not comment further on this matter. The issue for us to resolve is what was the "appropriate rate applicable to the classification of the replaced employee". Was it the rate Ms. Campbell received prior to the reclassification or the rate for the job after it was reclassified? We find that the College was acting within its rights under Article 3 to reclassify this position even after Ms. Campbell went on a leave of absence. Nothing in the agreement suggests otherwise. If we accept the Union's position that Appendix D freezes the classification and job rate throughout the period when replacements are employed at the last rate paid to the regular employee being replaced, it would give temporary staff protection not afforded to regular staff. For such an unusual result, there would have to be a clearcut provision in the collective agreement. There is no such provision either in Appendix D or elsewhere in the agreement. When the temporary replacements were hired under Appendix D, it was the newly classified position they were to fill and the "appropriate rate" was the rate for that position ..The replacements were paid the "appropriate rate" For all these reasons this grievance is dismissed. Dated at Toronto, Ontario this 21st day of March 1996. A.M. Kruger I concur, H.J. Cook I dissent, J. McManus