HomeMy WebLinkAboutDevlin 98-08-14OPSEU # 96F866
IN THE MATTER OF AN ARBITRATION
BETWEEN:
Sheridan College
(College)
and
Ontario Public Service Employees Union
(Support)
(Union)
BEFORE:
Helen Finley Chair
Jacqueline Campbell College Nominee
Pauline Seville Union Nominee
APPEARANCES: For the Union:
Heather Bowie Counsel
Martha Devlin Grievor
Jay Jackson President Local 245
Libby Walters Vice- President, Local 245
Nancy Telfer Acting Chief Steward/VP Grievance,
Local 245
For the College:
Larry Culver Counsel
Rosalie Spargo Assistant Director, Human Resources
Bob Bernhardt Director, Academic
Linda Berkovich Associate Registrar - Admissions
Diane Papspyrous Senior Analyst and Data Base Coordinator
Deborah Fitzpatrick Former Sheridan College Employee -
Program Administration Officer, Ontario
Skills Development Office
Mark Lundie Intervenor (Incumbent)
The hearing in this matter was held in Oakville, Ontario on February 3 and April 8, 1998
D E C I S I O N
In the spring of 1996, Sheridan College underwent a major downsizing, resulting in a number of
layoffs and reassignments. The process was conducted under the terms of the Collective
LAYOFF/RECALL PROCESS.
Agreement, specifically Article 15, The relevant sections are
the following:
15.4.3 Bumping Procedure
The employee so identified shall be assigned by the College to the first position determined in
accordance with the following sequence:
- to a vacant position in their classification provided he/she can
satisfactorily perform the requirements of the job. If there is no such
position then;
- to a vacant position in the same payband provided he/she can
satisfactorily perform the requirements of the job. If
there is no such position then;
- to the position held by the most junior employee within his/her same
classification provided he/she can satisfactorily perform the requirements
of the job and he/she has greater seniority. If there is no such position
then;
to the position held by the most junior employee within his/her same
-
payband provided he/she can satisfactorily perform the
requirements of the job and he/she has greater seniority.
If there is
no such position then;
- to a vacant position in the payband with a maximum rate one lower than
the employee’s own payband provided he/she can satisfactorily perform
the requirements of the job. If there is no such position then;
- to the position held by the most junior employee in the payband with a
maximum rate one lower than the employee’s own payband provided
he/she can satisfactorily perform the requirements of the job and he/she
has greater seniority;
- the provisions of the last two sections shall be repeated until all paybands
have been reviewed in descending order of maximum rate and either a
vacant position or a position held by a more junior employee is identified
and the employee affected can satisfactorily perform the requirements of
the job. If no such position is identified the employee shall be laid off.
(To illustrate how this sequence operates, see the Letter of Understanding appended to the Collective
Agreement, dated November 14,
1991.)[Emphasis added]
1
The Letter of Understanding reads as follows:
LAYOFF/RECALL PROCESS - BUMPING
For clarity, the parties agree that the following example demonstrates the general sequence of
assignment which occurs pursuant to Article 15.4.3
Assuming that a Clerk General C in Payband 5 is to be laid off and no vacant position exists in the
Clerk General C classification or in Payband 5, the employee is first considered to replace the most
junior employee in his/her classification. If the employee cannot satisfactorily perform the
requirements of the job, then he/she is considered to replace the next most junior person in his/her
classification, and so on. Once all positions in the employee’s classification that are held by less
senior employees are considered, and it is determined that the employee cannot satisfactorily perform
the requirements of the job, the position held by the least senior employee in Payband 5 is considered.
If the Clerk General C cannot satisfactorily perform the requirements of the job, the position held by
the next most junior employee in Payband 5 is considered, and so on until all positions held by less
senior employees in Payband 5 are considered. If none are suitable, vacant positions in Payband 4 are
considered, etc. The employee will be assigned to the first position identified pursuant to this
sequence for which he/she can satisfactorily perform the requirements of the job.
15.4.7 Familiarization Period
It is understood that the College is not required to train an employee for a position into which he/she
may be assigned pursuant to Article 15.4.3, but the College shall provide a reasonable period of
familiarization where necessary.
A joint management/union committee was formed and, pursuant to Article 15, made
recommendations to the President of the College respecting the downsizing and alternatives
“which might be resorted to in order to prevent or minimize the dislocation of employees”. As
part of the process, some positions were eliminated and others were created. The goal of the
Committee was to place each employee in an existing position or vacancy in a comparable
payband or in the highest payband - there are 14 - to which he or she was entitled, in a job in
which he or she could perform the essential duties. The Committee was also charged with making
recommendations respecting individual positions, layoffs, and reassignments. The
recommendation procedure involved each group, management side and union side, submitting its
recommendation to the President, and the identification of common recommendations respecting
ongoing activity to reduce the impact of the cutbacks. Each recommendation contained specific
suggestions relating to the particular employees who were to be affected.
As part of the process of developing the set of recommendations, the management side of the
2
Committee established criteria for each affected position in order to be able to assess whether or
not an employee under consideration could satisfactorily perform the requirements of the job
under consideration. The Committee had requested from the individual employees updated
resumés and if those were not available the management side considered the latest resumé filed
with the College.
Mr. Bob Bernhardt, who sat as a management member of the Committee, testified that the
management side of the Committee carried out its task respecting the assignment of individual
employees to positions by starting at the highest payband of the 14 and working its way
downwards. Using seniority within the payband, and adding those from the higher paybands who
had not previously been placed in the higher payband, this side of the Committee proceeded to
assess the skill levels and the jobs through each payband using the criteria which it had established
for each position, the Position Description Form (PDF) of the position being considered, and the
current Position Description Form of the employee under consideration.
As part of its assessment procedure, the committee members also had to distinguish between
“training” and “familiarization” in order to comply with Article 15.4.7, supra. Mr. Bernhardt
testified that the Committee did not have a definition of “familiarization” but that it was generally
accepted that a two-week period constitutes familiarization, and the Committee used that as its
working rule.
It was the management-side recommendation to the President (April 3, 1996) that Alice
MacDougal (Seniority date of February 2, 1986/Payband 08 prior to downsizing) should displace
Martha Devlin in her position as Program Assistant in the Ontario Skills Development Office,
Secretary C, Payband 08, and that she, Ms. Devlin should be reassigned to a vacancy in
Continuing Education, at the Trafalgar Campus as a Secretary B, Payband 07; it was the union-
side recommendation regarding Ms. Devlin (April 3, 1996) that there was a “need to ensure there
is no position at pay band 8 for [her] to fill”. The President followed the management-side
recommendation respecting individuals, and stated in her response that
3
the remainder of the list (not identified as “agreed”) constitutes
all other layoffs and reassignment recommendations from
Management”.
Mr. Bernhardt was asked why Ms. Devlin was not placed in a position in Payband 08 and he
testified that “by the time we got to her level of seniority to examine “the positions held by
vacancies”, none was left for which she met the skill requirements. On April 29, 1996, Ms.
Devlin accepted reassignment to the office of Continuing and Part-time Studies at the Trafalgar
Campus effective June 3, 1996 noting that the acceptance was “without prejudice”. The same
day, she grieved her assignment to a position in a lower payband and asked to be assigned to a
position in Payband 08 held by an employee more junior than herself.
Ms. Devlin who has a seniority date of August 10, 1988, had occupied her position in the
Ontario Skills Development Office for approximately 7 years. In that position she provided
secretarial services for 3 consultants and was “secretary/lead hand” from 1989 to 1993. It is Ms.
Devlin’s position that she should have been assigned to a position in Payband 08, specifically the
position of Registrarial Services Clerk, classification Clerk D, reporting to the Director,
Admissions and Recruitment. Much of the work of the position deals with the post-secondary
students’ progress through their programs, assessing whether they have met the requirements to
graduate, assessing the courses they have accumulated and whether or not they are deficient in
course credits. This process involves an assessment of the requirements set out in the calendar
and of the student record, and a comparison of the two. The immediacy of the knowledge of
information contained in the college calendar required was, in part, due to the number of students
needing service - at times up to 50 within an 1 ½ hour.
The position of the College is that Ms. Devlin would not, in April 1996, have been able to
perform the job of Registrarial Services Clerk satisfactorily. Since the computer programs were
run from the mainframe, it was necessary, according to the College, for the person in the
Registrarial Services Clerk position to be able to access and utilize this system. The College
4
therefore considered experience on a mainframe computer a requirement, and a knowledge of
• the Student Information System program which uses the integrated system
internally and connects with the Ontario College Application Service externally,
• the system-wide integration, of the LAN program,
• the Sheridan College Post-Secondary Calendar which sets out the prerequisites,
credits and required credits for the educational programs
crucial to carrying out the duties and responsibilities of the position of Registrarial Services Clerk
successfully. It was explained during testimony that the Student Information System (SIS) in
1996 was “a fourth generation system”, one that affects the entire data base in that area. It is a
system which is considered “sophisticated”. Management was particularly concerned about the
serious and broad impact that errors could have. Its concern arose from previous experience.
Mr. Bernhardt testified that, in spite of this, during the committee deliberations of the
management group the management side of the Committee concluded that making these criteria a
requirement, might be too restrictive, and for that reason, they were replaced by the following
two-part test:
• that the person filling the position could be trained to use the Student Information
System in a “not unreasonable amount of time”, and
• that the person being considered for placement into the position, if not experienced
in the Student Information System, should have
(a) considerable experience using the mainframe computer, and
(b) a strong understanding of the post-secondary programs, how students
progressed, and how the system worked.
He stated that the College had found it was difficult to train someone for the Student Information
System who had not had previous mainframe experience.
This test, once developed by the management side of the Committee, was discussed with the
Union. Mr. Bernhardt testified that the test was uniformly applied by the management side of the
committee in addressing all persons above and at Payband 08 and was applied to Ms. Devlin.
5
Ms. Devlin did not have experience with the Student Information System; she did not have
experience with the mainframe computer; she did not have knowledge of post-secondary
programs.
The individual who was later in the process placed in the position of the Registrarial Services
Clerk, Payband 08, Norma Pennington-Drabble, (Seniority date of January 21, 1985/Payband 11
prior to downsizing) did not have experience with the Student Information System, but had,
according to Mr. Bernhardt, experience on the mainframe and considerable knowledge of the
post-secondary area. She, herself, testified that she did not have prior experience in application
processing as it pertained to the system in use, and that while she did not have an intimate
knowledge of the post-secondary course calendar, she had had occasion to use it.
She was a graduate of the Applied Research Program at Sheridan College who during the years
following her graduation in 1984 had accumulated broad computer experience in the College and
other contexts, and while she did not have experience on the College’s mainframe, she had
experience on the mainframe at York University. Prior to her placement in this position she held a
position at Payband 11. She also grieved her placement at a lower payband.
Ms. Pennington-Drabble explained that while using the Student Information System, she attended
about 6 hours training in total over a three-month period to assist her in becoming familiar with it.
To aid her, she made use of the manual provided and the knowledge of those available who were
familiar with the system. She found that “it is fairly difficult to become comfortable with [the
Student Information System] in a short space of time”. It was her experience while occupying the
position of Registrarial Services Clerk, that approximately 80% of her time was spent using the
Student Information System. She explained that she did not have problems utilizing the full-time
post-secondary calendar which was issued annually, but found that the continuing education
calendar was more problematic in that it was issued three times a year and this resulted in frequent
changes.
In June 1996, Ms. Glenda Sobko, (Seniority date of August 3, 1980/Payband 9 prior to
6
downsizing) who testified at the hearing, moved from her position working for the Dean of
Community Health Services and a Co-ordinator in that department to the position of Registrarial
Clerk in the Registrar’s Office. For most of the time she has been at Sheridan
( from 1979) she has worked in the academic area, and her positions involved interacting with
students and faculty, and maintaining a familiarity with the programs and the academic calendar.
In the first position she was classified as a Secretary C, atypical. In that capacity, among other
tasks, she looked after correspondence for the Dean, composing some of it herself, took minutes
at meetings, took on various projects such as an analysis of the workloads throughout the
division, carried out the admissions process annually. She also made use of the Student
Information System, retrieving information to check student records, to check changes, to look
up telephone numbers to input test results, and consulted the administrative screens to see which
programs individuals had applied for and what marks they had attained in high school. She
testified that she was also able to access programs on a college-wide basis, for example the
financial information system. In the new position of Registrarial Services Clerk, she was a
“clerk” as distinct from a “secretary”. Ms. Sobko testified that she used her computer for a
greater percentage of each day, typed less, and continued to deal with students. Ms. Sobko
testified that her knowledge of computers was limited to what she was required to know and that
for the most part, she had gained her knowledge of the Student Information System from training
she received in 1995.
Mark Lundie, the incumbent, and intervenor at this hearing, elected not to call evidence or to
cross examine witnesses.
ARGUMENT
7
The parties agreed that they would present argument, with the College going first, the Union
second, and the College presenting reply argument.
The Board was referred to the following cases:
The Employer
Re Lennox Industries (Canada) Ltd. and United Steelworkers, Local 7235
(1983), 12 L.A.C.
(3d) 241 (Kennedy)
Re Computing Devices Canada (Ltd.) and Employees’ Association, Computing Devices
Canada
(1994), 41 L.A.C. (4th) 47 (Emrich)
Re Manitoba Housing Authority and International Union of Operating Engineers, Local 827
(1995), 47 L.A.C. (4th) 1 ( Hamilton)
Re Sheridan College and Ontario Public Service Employees Union
(1998) Unreported,
(Bendel)
The Union
Re Andres Wines (B.C.) Ltd. and United Brewery Workers, Local 300
(1984) 14 L.A.C. (3D)
238 (Larson)
Re Board of School Trustees, Delta School District and Canadian Union of Public Employees,
Local 1091
(1994) 46 L.A.C. (4th) 216 (Laing)
Mr. Culver, for the College, set out at the beginning of his argument, what this case, as he
viewed it, was not about. It is not, he said, a job competition nor is it about what Ms. Devlin
might have done if she had been placed in a regular office job, that is, mastered the duties of the
job with training and experience. It is a layoff, and about “taking a picture in March [April]1996
and analysing it”; it is not a situation where one can take a prospective view. The onus in this
case, he stated, is on the Union and the Grievor to prove that Ms. Devlin could have
satisfactorily performed the requirements of the job of the Registrarial Clerk in the time frame of
March [April] 1996 and the test to apply is that previously applied by Arbitrator Bendel in the
case cited above between the College and the Union, supra:
The union must persuade us, by proof of the grievor’s relevant knowledge, skills
and experience, that, following a familiarization period, he would be able to
perform the work satisfactorily, not merely that he might develop new talents if
placed in the job and thereby be able to satisfy the requirements of the position.
(At pages 10 & 11)
8
Mr. Culver submitted that at the time the recommendations were being made by the Committee,
the Union did not object to the tests developed by the management side of the Committee, nor
did the Union side suggest that Ms. Devlin should go into the Registrarial Clerk position.
Further, one of the committee members on the union side worked in the environment in which the
Student Information System was used. The test, which was accepted by the Union, he argued,
was reasonable in all the circumstances and was fair to those being displaced from their normal
position. Ms. Devlin did not meet the test and her cross-examination bore that out. She testified,
Mr. Culver submitted, that she had no knowledge, experience or working abilities in the Student
Information System, had not worked in a college department where she was involved with
students, had not used the academic calendar, and finally had not dealt with data bases or a
mainframe computer. It was clear, from her testimony that in April 1996 she did not meet the
requirements of either the more stringent or the less stringent test which, he submitted, is not to
say that she did not have the intelligence or future ability.
The placement that Ms. Devlin received, he submitted, was the only placement available to her
and the Union has failed to discharge its onus.
Ms. Bowie, for the Union, argued that in this particular case, one does not have to rely solely on
the “familiarization period” since the College made it clear, it knew it was going to have to train
persons for the Registrarial Clerk position, and therefore the criteria must be applied with that in
mind. Once the College has gone beyond the legal requirements for the other two occupants of
the position, Ms. Pennington-Drabble and Ms. Sobko, and indeed for everyone else in the
Registry Office, it cannot then turn around and undo that, rather it must have evaluated all
“candidates” in relation to where these people would be after they are trained. Since the College
knew it was providing training and then a familiarization period, seniority should then be the
ultimate basis for decision. Ms. Devlin has in the past learned various computer programs, Ms.
Bowie submitted, and given that she has the greater seniority, it should govern, and she should
be provided with training and then a familiarization period. Ms. Bowie referred the Board to
Andres
, supra, and noted that in that case a distinction was made between training and a
9
familiarization period, and the developmental aspect which comes into play if the familiarization
period is longer than one week. In the case at hand, the developmental aspect does play a role
since the Collective Agreement does not place a time limit on the familiarization period and the
College has admitted that training is required.
The College in this instance, realized that it was not going to find the “ideal candidate” that is the
person with experience with the Student Information System and once it realized that, it moved to
the “second ideal” . The College has judged Ms. Devlin against the standard of the “ideal
candidate” as opposed to capability after training and familiarization and submitted that the
College response to Ms. Devlin dated June 17, 1996, was proof of this, in particular, the
following excerpt in which the College has indicated that its considerations were based on
proficiency as opposed to capability:
Although you have extensive and valued experience your background does not
include experience working directly with application processing, program
knowledge, or familiarity with complex integrated student information systems. In
past selection processes for this position the College has considered this as
essential to meeting with success in the position.
The test is not, however, finding the ideal candidate, she submitted, but finding someone who can
perform the job, and the cases are clear that capability is not to be confused with proficiency. She
Delta
referred the Board to , supra. A picture of the Grievor’s skills as of April 1996 fails to
recognize the developmental nature of the unlimited familiarization period in the Collective
Agreement and to that extent it is not entirely appropriate to look at a picture of “where they are”
and that , Ms. Bowie submitted, is what occurred. The Grievor should, be able to bump the
current incumbent (Mr. Mark Lundie) in the Registrarial Clerk position.
Mr. Lundie chose not to present argument.
In reply, Mr. Culver reinforced his earlier statement that this situation is not one of a job posting
and the “ideal”, “proficient”, “best candidate” test is not appropriate. The fact that Ms. Devlin
10
has performed clerical work should not, in and of itself, place her in any position involving a
computer. The College should not be penalized by being required to train a person going into a
position as part of a layoff procedure for as long as it takes in order to keep them in their
particular payband. Training on the part of the College is voluntary and does not, he submitted
create a right to training for the Employee.
DECISION
In this case, the onus is on the Union to demonstrate to the Board that the Grievor, Ms. Devlin,
an employee affected by the layoff procedure, would have been capable in April 1996 of
satisfactorily performing the requirements of the position she claims she should have been allowed
to bump into, that of the Registrarial Services Clerk in the Registrar’s Office. By not requiring a
knowledge of the Student Information System, the Employer removed one of the requirements
and replaced it with a less specific requirement, that of experience on a mainframe computer,
which is needed to use the Student Information System. Ms. Devlin’s qualifications, skills and
knowledge are to be compared with the requirements of the position. They are not to be
compared with the qualifications, skills and knowledge of other participants in the process, since
this process is not concerned with selecting the most or more qualified candidate but with
selecting the most senior employee who is capable of satisfactorily performing the requirements of
the position. In coming to its decision, the Board has followed this reasoning. The Collective
Agreement does not set out a process for judging or determining whether or not an employee is
able to satisfactorily perform the responsibilities of a position. This is left to the parties by
agreement, or to management.
During the layoff process, the management side of the Committee concluded that if the threshold
for satisfactory performance mandated the requirement of knowledge of the Student Information
System - a sophisticated system which had undergone a number of developmental changes and
with which few of the individuals involved in the process were familiar - that the situation was
likely to arise where none of the participants in the process would be able to bump into the
11
position. It was the decision of the Committee to use less restrictive criteria and to make instead,
experience on a mainframe computer a threshold requirement. This decision was not challenged
by the Union at the time or at the hearing, nor was there any suggestion of its being
inappropriate. The criteria were applied to the employees consistently and systematically and
Ms. Devlin was considered on the same basis as others in the process. It is the opinion of the
Board that the use of mainframe experience as an essential threshold requirement for an
individual to be able to begin to satisfactorily perform responsibilities of the Registrarial Services
Clerk position, was appropriate, given the Position Description Form for the Registrarial Clerk
Position, the relationship that mainframe experience bears to the Student Information System and
the amount of training which would be required. Article 15.4.7 states that there is no obligation
on the Employer to provide training, however, the clause does not prohibit training being offered
where the situation clearly requires that in order to place someone in the position, training would
be necessary and it is reasonable for the Employer in such situations to set criteria that minimize
or reduce the amount of training it must provide.
Ms. Devlin was considered ineligible to bump into the Registrarial Services Clerk position in April
1996 because her resumé did not indicate that at that time she had experience or knowledge of
the Student Information System, experience on a mainframe computer, or experience in the post-
secondary sector of the College. She was forthright in confirming during her testimony that she
did not have these specific requirements at that time. There was no evidence to suggest that the
declaration of Ms. Devlin’s ineligibility to bump in to the Registrarial Services Clerk was done in
an arbitrary, discriminatory or unreasonable manner.
It is the determination of the Board, after considering the evidence, the arguments and the
jurisprudence placed before it, that the Union has failed to meet the onus set out above. The
Board recognizes that Ms. Devlin has a long and varied experience in the secretarial field as well
as a willingness and ability to learn and adapt. However, in this particular instance, her
experience felt short of the specific requirements detailed above at the time of the layoff and
bumping and this rendered her ineligible to bump into the position of the Registrarial Services
12
Clerk in April 1996. In the result, the Board finds that the failure of the College to to place Ms.
Devlin in the position of the Registrarial Services Clerk or in another position in Payband 08 in
April 1996 was not in violation of Article 15 of the Collective Agreement and was reasonable
under the circumstances. The grievance is therefore dismissed.
Kingston Signed
Dated at _____________________________________________________________
Helen Finley, Chair
August 14, 1998 Signed
this ________________________________________________________________
Jacqueline Campbell, College Nominee
Signed
___________________________________
Pauline Seville, Union Nominee
13
14