HomeMy WebLinkAboutUnion 97-05-27IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC EMPLOYEES UNION, LOCAL 4200
(hereinafter referred to as "the Union")
- and -
LOYALIST COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(hereinafter referred to as "the Employer")
Policy Grievance - Posting Procedure
Before: M. G. Mitchnick- Chairman
Cam Masse- Union Nominee
Peter Hetz- College Nominee
Appearances:
For the Union:
K. Eliot- Counsel
H. Plummer- Local President
W. Boicey- Local Vice-President
G. Warren- Chief Steward
For the Employer:
P. Murray- Counsel
D. Butler- Vice-President
Human Resources
Loyalist College
R. Michol- Dean of Human Studies
Loyalist College
Hearing held in Belleville on June 20th, 1996 and
January 24th, 1997
A W A R D
The Union has filed a policy grievance in this matter which
effectively challenges the Policy or Procedure that the College
has in place for the filling of posted vacancies in the academic
bargaining unit. More specifically, what the grievance
challenges is the manner in which the College "considers"
applications from internal candidates for such postings, prior to
considering applications from two other groups identified in the
collective agreement; namely, employees laid off at other
Colleges, and persons applying from "off the street". The
grievance reads:
The union grieves that the procedures the college
followed to fill the vacant, full-time position in the
Early Childhood Education program failed to accommodate
the contractual rights of existing employees, including
Connie Lumley and Claudette Hope, who applied for the
vacancy.
(For identification purposes - this position is the one
now occupied by Beverlie Deitze.)
References:
Collective Agreement Articles 27.11A, 27.11B
SETTLEMENT REQUIRED
The college will amend its procedures to accommodate
the rights of existing employees who apply for full-
time academic positions. Specifically, the amended
procedures will ensure that the competence, skill and
experience of internal applicants in relation to the
requirements of the vacant position will be considered
first; external candidates shall not be considered
unless no internal candidate has the required
competence, skill and experience.
The Reply of the College to this grievance noted the
following:
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The College's policy HR130 states that all qualified
internal applicants are to be interviewed by the
interview committee along with selected external
candidates who may apply. It is the policy of the
College to hire the most appropriately qualified
candidate for any vacant position from among this
group.
It is my opinion that policy HR130 goes beyond what is
mandated in Articles 27.11A and 27.11B of the
Collective Agreement.
It is true that the College in its Policy does go beyond the
strict requirements of the collective agreement insofar as it
provides for the review of applications from all persons working
for the College, whether a part of the academic bargaining unit
or not, and the granting of an interview for any of those deemed
at least minimally qualified. The issue, however, is over the
manner and extent to which any applications coming forward from
within the bargaining unit are dealt with -- prior to turning to
and considering applications from any other source, and the
written Policy in its terms does not specifically speak to that.
The Policy (Exhibit 4) provides:
Notice will be posted of all vacancies of full-time
positions in the bargaining unit. Such a notice will
be posted for at least five (5 days).
All requests for postings and advertising of vacancies
should include the desired wording and a job
specification sheet which lists the precise
competencies and skills required. All advertisements
should specifically require a detailed work history,
including start and finish dates, as part of the
application (required for initial placement on salary
grid). Applications for full time employment are
directed to the office of the appropriate Vice-
President, and acknowledgements will go out from that
office. Applications for other than full time
positions should be directed to the appropriate Dean's
office and all written responses will be acknowledged
by that office.
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SELECTION INTERVIEW PROCESS
1. For full time positions an interview committee
will be appointed by the appropriate Vice-President and
will include the Dean, up to two program faculty and
one representative from another department of the
College. This committee will recommend those
applicants who are to be interviewed, with the final
decision resting with the Dean.
2. All submissions for advertised and/or posted
positions will be reviewed by the Dean and a minimum of
two other members of the selection committee and a
short list of applicants who are to be interviewed will
be formulated.
3. All qualified internal applicants (full time) are
to be interviewed by the interview committee.
4. An interview rating scheme shall be devised and
agreed upon prior to the start of the interviews. A
copy of this form is to be completed and signed by each
member of the panel for each candidate interviewed. At
the conclusion of the competition all forms and related
documents will be forwarded to the Human Resources
Department for short term storage.
5. After reviewing the input of the committee the
Dean will make the final recommendation to the Vice-
President.
6. Expeditious handling of the selection process is
essential to ensure the availability of the chosen
candidate. Interview dates should be set up as soon as
possible after the closing date of the competition.
Applicants must be informed if unusual delays are
incurred.
. . .
Of greater assistance in this matter to point up the issue
for the board is the following Agreed Statement of Facts, put
together by the parties for the purpose of this hearing:
1. On May 18, 1995, the College posted a notice of a
vacancy for a full-time Professor in the Early
Childhood Education Program ("E.C.E."). This notice
was posted internally within the College for a period
of five (5) working days. A copy of this posting is
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attached hereto at Schedule A.
2. The position was externally advertised on May 20,
1995. (Belleville Intelligencer and Globe & Mail).
3. There were 14 applicants from within the College.
One of those applicants was a full-time, Faculty
bargaining unit member. The other applicants were
current partial load (Graham) or past partial load
employees (Lumley), part-time employees or individuals
otherwise involved with the ECE program, including a
full-time Day Manager, and two full-time support staff.
4. College policy (Exhibit 4) requires that all
qualified full-time internal applicants are to be
interviewed by the interview committee. After a review
of the resumes, seven of the fourteen internal
applicants were deemed by the committee to be
sufficiently qualified to warrant an interview.
Resumes were assessed by the interviewing committee on
the basis of the qualifications set out in the job
posting. The assessment took place on June 12, 1995.
The seven internal candidates who were given an
interview were a full-time faculty bargaining unit
member (Claudette Hope), two partial load employees
(Connie Lumley and Virginia Graham), two part-time
employees (Jan Demeray and Donna Rodgers) as well as a
full-time Manager (Childcare Centre) and one full-time
support staff (Childcare Centre staff).
5. Seventy-eight external applications were also
received. None were laid off employees from other
Colleges. Six external applicants were also chosen for
an interview by the interview committee at the meeting
of June 12, 1995.
6. Members of the interview committee were provided
with copies of all resumes (internal and external) and
screening forms prior to the June 12 meeting. Members
of the interview committee were also provided with
copies of resumes of candidates selected to be
interviewed prior to the scheduled interviews (June 28-
29) along with scoring instruments to be used during
the interview process.
7. The seven internal candidates were interviewed
first on June 28th, 1995. At the end of this day of
interviews there was no conclusion with respect to the
internal candidates.
8. The six external candidates were then interviewed
on June 29, 1995. At the end of this day of interviews
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there was no conclusion with respect to this group of
candidates.
9. After the second day of interviews, the selection
panel met (on June 19) to rank all of the candidates
that had been interviewed. The five top candidates
were shortlisted in no order of preference. These five
candidates included one internal Candidate (partial
load) and four external candidates, all current full-
time employees of Canadian Community Colleges.
10. The same 5 individuals performed the screening of
résumés, the interviews and the selection of the
successful candidate. This committee consisted of a
past Chair of the ECE Advisory Committee, 2 faculty,
the former acting Dean (faculty member), and Dean
Michol (Chair).
11. On July 5, 1995 the committee met again, reviewed
the shortlist and reached a consensus on an external
applicant as the successful candidate.
The case involves the proper interpretation of Articles
27.11A and 27.11B. Those provisions read:
Notice will be posted in the College of all
27.11A
vacancies of full-time positions in the bargaining
unit. Such notice will be posted for at least five
working days.
At the same time, notice of these vacancies will be
sent to the Union Local President for distribution to
the other Union Local Presidents.
The College will also forward copies of the notice to
the other Colleges with the intention that they be
posted.
Where a vacancy of a full-time position in
27.11B
the bargaining unit occurs and is not filled
internally, the College will give consideration to
applications received from academic employees laid off
at other colleges before giving consideration to other
external applicants. Such consideration shall be given
for up to and including ten working days from the date
of posting as described in 27.11 A.
The Union's position is two-fold:
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1) Reading those provisions together, it is clear that the
obligation on the College is to "consider" applications in
the following three-step sequence:
a) internal applicants;
b) applicants from amongst academic employees laid-off at
other Colleges;
c) applicants from "off the street".
The Union, it might be noted, also takes the position that
whatever the "consideration" rights for the internal group might
be, the Article simply makes reference to "applicants", and those
rights must extend as well to any partial-load staff members
seeking to upgrade to full-time status. The short answer to
that additional submission, as Ms. Murray points out, is found in
Article 26.03, which provides:
It is agreed that Article 27, Job Security, has no
application to partial-load teachers except as referred
to in 27.04 A, 27.06 (iv), (v), (vi), 27.08 B and
27.12. Such partial-load teachers may be released upon
30 days' written notice and shall resign by giving 30
days' written notice.
Section 27.11, it can be seen, is not one of the exceptions to
this express exclusion. Thus, as arbitrator Brent commented in
the Fanshawe College (Barton) case, unreported decision dated
August 5th, 1992, at page 11:
It is difficult to argue that the parties intended to
limit management's discretion implicitly when they
explicitly agreed to exclude the partial-load employees
from the only provision which creates any obligations
with regard to the filling of regular full-time
bargaining unit vacancies. What is implicit is not
that the College was to act reasonably and in good
faith when exercising its discretion with regard to
hiring partial-load employees to fill regular full-time
vacancies, but that the parties agreed to treat
partial-load employees like strangers off the street
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when it came to hiring decisions for regular full-time
bargaining unit vacancies.
With respect to the issue of "sequence", the Union relies,
apart from the express language of the collective agreement, on
the decision of a board of arbitration squarely considering this
matter in George Brown College (1993), 37 L.A.C. (4th) 107
(Burkett). There a grievance was brought by a member of the
academic bargaining unit over her failure to be awarded a
posting, and the preliminary response of the College before
arbitrator Burkett was that the matter was not arbitrable. That
position stemmed from the fact that, as can be seen above, the
College academic agreement contains no express standard as to the
basis on which the employer is to make its actual selection in
the internal posting process. About that Arbitrator Burkett
wrote, at page ll2 of the award:
In the case before us the parties have incorporated
language requiring the college to post, "in the College
... all vacancies of full-time positions in the
bargaining unit". The requirement to post within the
college, if the clause is to have any meaning at all,
carries with it the implied requirement to consider the
internal applicants who respond to the posting. While
we can accept that absent any express standard of
consideration (as is contained in most collective
agreements) the intention was to give the college a
broad discretion, we are unable to conclude that the
intention was to give to the college an unfettered or
absolute discretion that is beyond the scope of
arbitral review.
The acceptance of the proposition that a
management right can be limited or circumscribed
"explicitly or implicitly by some other provision of
the collective agreement" is found in Re Canada Packers
and U.E.C.W. (July 5, 1991), unreported (Hinnegan),
supra, and in Re Niagara and O.P.S.E.U. (Swan) supra.
We are satisfied on the language of art. 8.12(a) that
the college cannot simply reject the internal
applicants out of hand. There exists an implicit,
albeit limited, restriction upon what would otherwise
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be the unfettered right of the college to transfer
employees. Having so found we do not at this juncture
have to speculate as to the extent of the implied
restriction. However, in the face of our finding that
there is an implied restriction, albeit one that gives
the college a broad discretion, it is open to a grievor
to allege that his/her application under art. 8.12(a)
was not given the consideration required under the
clause.
As can be seen, given that the parties had agreed to include in
their collective agreement an undertaking by the College to post,
Mr. Burkett found that there was implied in that undertaking an
obligation on the part of the College to in some fashion actually
consider any applications so received, or the initial undertaking
on the part of the College could potentially be rendered
meaningless. In the same vein, Mr. Burkett then went on to find
that the agreed language that is the pre-condition to Article
27.11B, i.e.:
"Where a vacancy of a full-time position in the
bargaining unit occurs and is not filled internally..."
must be taken to have been intended to have some real meaning as
well. The arbitrator thus continued:
Furthermore in so far as a pre-condition to
consideration being given to the application of a laid
off academic employee from another college, under art.
8.12(b), is that the vacancy "is not filled
internally", the parties have established a sequence
for the consideration of applications. Not
surprisingly, internal applications filed under art.
8.12(a) are to be considered prior to consideration
being given to the applications of laid off academic
employees from other colleges. Accordingly, it is also
open to an internal applicant to allege, as the grievor
in this case has done, that the process is flawed if
the internal application(s) is considered together
with, instead of in advance of, consideration being
given to the application of laid off employees from
other colleges. This too is a matter that must be
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decided on the basis of the evidence led and the
submissions made at a hearing on the merits.
Ms. Murray, on behalf of the College, notes the importance,
particularly within a single sector like the College system, of
consistency and predictability, and urges this board to follow
the pronouncements of prior arbitrators in cases that have had
exactly the same points to consider, unless those prior decisions
can be shown to be "clearly wrong". In that regard, it is the
College's submission that the two cases referred to above,
Fanshawe and George Brown College, deal with and are a complete
answer to the present grievance. The only respect with which the
College disagrees with the findings of Mr. Burkett, in
particular, is on the question of "sequencing". Rather, the
College submits, the opening words of Article 27.11B are a mere
recognition of the fact that there is an obligation under this
collective agreement to make vacancies available to members of
the bargaining unit who may be on lay-off, and the reference thus
is simply to any vacancies that have not already been filled in
that manner.
With respect, the board is unable to find merit in that
proffered (albeit creative) interpretation of the opening words
of 27.11B. As Ms. Eliot points out, the language is contained in
what is solely the posting provision of the collective agreement,
and the whole flow of Articles 27.11A and B supports the cast
that arbitrator Burkett has put upon the clause. Indeed, the
tight 10-day limitation in Article 27.11B for applications from
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other Colleges to attract their "preferential treatment"
underscores the whole "sequencing" notion that runs throughout
the "Postings" article. Far from finding Mr. Burkett to have
been "clearly wrong", therefore, we find Mr. Burkett to have been
logically correct. And once that flow of the language is
accepted, there would be no point making the opening words of
27.11B the agreed pre-condition to moving to that article if the
College could simply say, with no possibility of review: "The
simple fact is that we have not chosen to fill the vacancy from
within, and that is an end to the matter". Rather, as Mr.
Burkett has found (and as the College does not challenge), there
must be some standard that the College can be held to in
executing its implicit undertakings in Article 27.11A, and it is
the proper application of that standard that stands as a
precursor to the further processing stages agreed to by the
parties under Article 27.11B. The critical question, therefore,
becomes: What is that standard?
In that regard, there are additional comments of Mr. Burkett
in George Brown that are germane to the argument that was put
before Mr. Burkett in that case, and that is essentially along
the lines being put before this board as well. At page 111 of
the award Mr. Burkett notes:
The parties, in their wisdom, have chosen not to
incorporate an express standard of consideration into
art. 8.12(a) as they have done elsewhere [perhaps a
reference to the "support staff" collective agreement];
perhaps because of the lateral nature of any transfer
sought by an internal applicant. Whatever the reason,
there is no express standard of consideration that
applies in the case of an internal applicant.
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Before considering the implication flowing
from the absence of an express standard of
consideration for internal candidates we turn to the
argument advanced by the union that it could never have
been intended that external applicants off the street
would be given the benefit of the standard of
consideration set out in the last paragraph of art.
8.12(b), while internal applicants would not. However,
this is precisely what the parties have done in
drafting art. 8.12. It is to be remembered that
external applicants, in contrast to laid off academic
employees from other colleges, are not bargaining unit
employees and are not members of the union and,
therefore, the practical effect is that the standard is
limited in its enforceable effect, to academic
employees laid off at other colleges; a not
unreasonable result.
The "test" set out in the second paragraph of 27.11B, in other
words, applies only to the consideration by the College (when
that point is reached) of academic applicants from other
Colleges. It obviously does not apply to external applicants
from "off the street" (whom the Union does not represent, nor
would ever seek protection for); nor, given its placement, does
it apply to the "internal" consideration found implicit in
Article 27.11A. Having said that, it is worth noting that the
"restriction" that the parties agreed upon to go into Article
27.11B is not really much of a standard at all: the test is
still one of "consideration" only, and the clause states that
such consideration shall simply include review of the factors
enumerated; it does not exclude consideration of any other
relevant factors in the College's discretion, nor does it
prescribe any particular weighting to be applied to such open-
ended list of factors.
On the other hand, it is fair to say, as Ms. Eliot submits,
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that it would be patently nonsensical to infer that the parties
could have intended a lesser standard for the consideration of
the College's own internal staff members, than it explicitly
agreed to for the consideration of staff persons from another
College. To that extent, therefore, it is reasonable to take the
express "standard" articulated by the parties in 27.11B as the
minimum standard, at least, that could have been contemplated by
the parties to be applied by the College in 27.11A. Beyond that,
there is not much guidance in the agreement as to what the actual
"standard" for 27.11A might be, other than as broadly
characterized (and not disagreed with by the College here) by Mr.
Burkett in George Brown (in terms of there implicitly having to
be "some" standard). Where we differ from the present College,
as we have noted, is in their rejection of the notion of precise
"sequencing", embraced by Mr. Burkett. But, again, one has to be
practical, and with no express test for the filling of these
lateral vacancies having been negotiated, there is recognizably
some difficulty establishing where all of that leads. The board
would, however, attempt to synthesize it this way:
l) The College has an obligation to consider all applications
at stage one, the "internal" bargaining unit stage, prior to
turning to and taking into account applications that might
be before it at stage two (consideration of external College
applicants).
2) If the College, acting in good faith and on the basis of
relevant considerations, does not make a selection for the
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posting from among the internal applicants presented, it may
then go on to consider the applications that have come
before it from other Colleges (and deal with those meeting
the ten-day cut-off in the same fashion as in point number
(l), prior to moving on to consider any applications from
other external sources).
3) As long as the College follows the steps here set out,
properly and sequentially, and the posting nonetheless
remains unfilled, it is open to it to go back and give
further consideration to any and all applications that have
been placed before it, and to make a final decision if it
chooses from that entire "pool".
From the above recitation it can be seen that the obligation
on the College under Articles 27.11A and B is more a matter of
proper "process" than of detailed substance. And, in fairness to
the Union, that is exactly what the complaint in the present
grievance was concerned with. On that point, the College has
made the alternative submission to the board (i.e., if its
preliminary position is rejected on the absence of any
"sequencing" obligation), that the Agreed Statement of Facts
discloses that the College followed a proper "sequencing" here in
any event.
With respect once again, the board cannot share in that
conclusion. What the College did here, in purported compliance
with Articles 27.11A and B, is to schedule interviews for the
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"internal" group of qualified applicants on one day, and for the
"external" group the next. There is no evidence as to what
consideration was given to the internal applicants before
proceeding to a consideration of the second group. A statement
regarding those initial interviews, for example, that:
"At the end of this day of interviews there was no
conclusion with respect to the internal candidates"
tells the board nothing in that regard. There may have been no
conclusion because the College chose not to consider those
applicants until it had had the chance to see what the whole
field looked like. Indeed, the precise process adopted by the
College points in that direction -- and, as noted, appears to be
what prompted the grievance. While the College scheduled the
internal interviews to take place ahead of the external ones, all
applications were screened at the same time, at the same meeting,
and then all set for interviews. While that may have commended
itself for efficiency, we find that the provisions of Article
27.11, in line with the George Brown case, require more: they
require a conscious effort on the part of the College to make at
least a preliminary judgment on each of the internal applicants
first (i.e., for those that Article 27.11 of the academic
agreement actually covers), prior to turning its mind to the
external applications that may have come in as well. That may
include as well the conducting of interviews for this first group
of applicants (if such is deemed appropriate by the College for
any of them), before turning even to the "screening" phase of the
external applicants. Had that been the process, we might add,
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and the vacancy still not been "filled internally", there would
at least on the face of it, as indicated above, have been nothing
wrong with the College's subsequent process for arriving at a
selection as set out in paragraphs 9, 1O and 11 of the Agreed
Facts. The College's own reply in this matter, on the contrary,
however, is suggestive of a deliberate decision not to actually
consider any internal applicants until all interested and
potentially qualified applicants have been identified and can be
considered at the same time. That kind of approach, we find,
reads out the collective agreement language entirely.
In the result, and on the basis of the Agreed Facts
presented, the board cannot find that the selection process
followed by the College here is in compliance with the
obligations assumed by the employer under Article 27.11 of the
collective agreement, and we make that declaration for the
parties' guidance. The grievance simply called upon the College
to "amend its procedures", and the board will remain seized with
this matter, should the foregoing not enable the parties to now
dispose of this grievance in its entirety.
Dated at Toronto this 27th day of May, 1997
"M. G. Mitchnick"
M. G. Mitchnick
I concur"C. Masse"
C. Masse
I dissent"P. Hetz"
P. Hetz