HomeMy WebLinkAboutWillett 98-04-24BETWEEN:
George Brown College of Applied Arts and Technology
- and -
Ontario Public Service Employees Union
PLACE & DATES OF HEARING: Toronto, Ontario, August 27 and 28, September 25, October 22 and 24, December 12, 1997, March 23 and 27, 1998.
BOARD OF ARBITRATION:
Sherril Murray
Rene St. Onge
Stanley Schiff, chairman
APPEARANCES FOR THE EMPLOYER:
Ann Lillipold, manager, industrial relations- academic
Marilyn Rinaldo, chair, faculty of technology building and environmental
systems programs
Hilda Limner, chair, faculty of technology post-secondarY programs
Stephen Raymond, counsel
APPEARANCES FOR THE UNION:
G reg Willett
Alick Ryder, counsel
APPEARANCES FOR THE INCUMBENTS:
William Juranic
Tom Stephenson
AWARD AND REASONS
Greg Willett was a professor teaching mainly courses in the areas of electricity.
In a letter from the dean, dated February 28th, 1996, he was informed that he would be
laid off effective May 28th. He grieved on March 18th, and ultimately claimed one or otb-
er of the positions held by Tom Stephenson and William Juranic, admittedly his juniors
in seniority.
The grievance is based on clauses (ii) and (viii) (c) of art. 27.06. Relevant por-
tions are these:
27.06 When the College decides to lay off or reduce the number of full-time
employees who have completed the probationary period..., the following place-
ment and displacement provisions shall apply to full-time employees so affected.
Where an employee has the competence, skill and experience to fulfill the re-
quirements of the full-time position concerned, seniority shall apply consistent
with the following:
(i) ....
(ii) ... [S]uch employee shall be reassigned to displace another full-time
employee in the same classification provided that:
(a) the displacing employee has the competence, skill and experi-
ence to fulfill the requirements of the position concerned;
(b) the employee being displaced has lesser seniority with the
College.
(viii) (c) Failing placement under [successive previous provisions], such
employee shall be laid off with written notice of no less than 90
calender days ....
The union also adds art. 11.02 A 1 (a):
11.02 A 1 (a) Prior to the establishment of a total workload for any teacher the
supervisor shall discuss the proposed workload with the teacher and complete
the SWF...to be provided by the College. The supervisor shall give a copy to the
teacher not later than six weeks prior to the beginning of the period covered by
the timetable excluding holidays and vacations ....
In most of the awards where art. 27.06 has been applied, the arbitrators have
looked to the content of the incumbent's job duties - usually the assigned courses - at
the effective date of layoff to define "the requirements of the full-time position con-
cerned...". E.g., Re Niagara Co#ege and OPSEU, Martin grievance (1989) (Brown,
chairman), at 5. As we read clauses (ii) and (viii) (c) of art. 27.06, we are not sure that
the choice of that date is right: we think the language and the specific progression of
steps before the climactic clause (viii) (c) is reached more likely point to the earlier date
of the written notice of intended layoff. Apart from that, boards chaired by Don Carter in
two arbitrations involving St. Clair College have persuasively argued that "the require-
ments of the...position concerned" are found in what the awards call "the core pattern of
duties" the incumbent performed over the course of his career. The first of the awards,
dated May 18, 1989, is quoted at length in Niagara College, Martin grievance, at 6-7.
The other, following some months later, is Re St. Clair College and OPSEU, Barei
grievance (1989) (Carter, chairman), at 3-5. What is wanted under this alternative
theory is not a snapshot of what the incumbent was doing at the moment of layoff but
rather a retrospective view of what he had been doing over the years. Be all that as it
may, the parties before us agree between them that we should look at the courses
Stephenson and Juranic were assigned to teach during the 1996-97 academic year,
that is, during the year after the layoff and after the grievance. The College also wants
us to look at the other duties Stephenson and Juranic were assigned during that year.
The impact of art 11.02 A 1 (a) on layoff/displacement grievances has been all
but ignored in the awards. Without mentioning the provision, arbitrators have long said
that the grievor must have the competence, skill and experience to take over the incum-
bent's position immediately upon layoff without any intervening time period for prepara-
tion. E.g., Niagara College, Martin grievance, at 8-9 (gathering previous awards); St.
Clair College, Barei grievance, at 6. An award issued after we heard final oral argument
now deals specifically with art. 11.02 A 1 (a) in this context. In Re Georgian College and
OPSEU, Simpson grievance (1998) (Brown, chairman), at 17, the board rejected the
argument that a grievor claiming to displace under art. 27.06 must be given the six-
week preparation period art. 11.02 A 1 (a) provides. In the board's view, art. 11.02 A 1
(a) applies only to teachers who are already qualifiied, presumably because they met at
least a threshold at the time of hire. As all the previous awards had said, those who
claim under art. 27.06, with a threshold of qualifications yet to meet, must do it immedi-
ately. Apart from the result of drawing that distinction, we can contemplate a more than
plausible argument that Article 11 as a whole - indeed, as mirrored in the first sentence
of art. 11.02 A 1 (a) - deals with initially establishing a teacher's own workload. Under
this argument, It does not affect a displacing teacher's taking over the workload after it
has been established for the teacher now being displaced. With or without the grievor's
right to prepare, however, it is up to the union to show at the end that the grievor can
indeed meet the threshold. Niagara College, Martin grievance, at 5; St. Clair College,
Barei grievance, at 6.
Before us, the union came close to conceding that Willett cannot meet the
threshold without preparation time. As we see it from the evidence, that concession
would be right.
First of all, the College has set various minimum qualifications for the positions
that Willett does not satisfy. We agree with the College's argument that, once an em-
ployer has decided on such qualifications, an arbitrator should not second-guess unless
the qualifications chosen are unreasonable or the emplOyer acted in bad faith in choos-
lng them.This proposition has long been settled. Re Seneca College and OPSEU,
Ofiver grievance (1996), 52 L.A.C. (4th) 129, 131,132 (Schiff, chairman) (canvassing
the previous awards). Here, since the union only lightly challenged the College's deci-
sion, we take the qualifications as given. To be able to take over Stephenson's position,
as the faculty's responsible chairperson told us, someone would need formal training
and certification in carpentery and at least five years of directly related experience in
carpentery work. For Juranic's position, the person would need, among other things,
certification as a building code inspector and solid understanding and demonstrated
experience in construction methods and materials in the setting of the construction
industry. We can here leave aside the question of Willett's experience in carpentery and
construction methods and materials. He cannot satisfy the certification qualifications: he
does not have a certificate of qualification in carpentry nor as a building code inspector.
While certification as such is not an element of "competence" or "skill", it is strongly
persuasive evidence of a high level of both. The union is always at liberty to introduce
evidence that a grievor has the competence and skill equivalent to that the particular
certificate represents. Before us the union did not try. So, under this way of looking at
how art. 27.06 works, the union has not shown that Willett met the threshold standard
for the positions Stephenson and Juranic held.
If we now examine Willett's qualifications the way arbitrators have usually done in
cases like this - that is, course by course - we come to the same conclusion. According
to the awards, Willett must be able to "walk right in and do [the] job" in each and every
assigned course. Niagara College, Martin grievance, at 9-10, 22-23: Georgian College,
Simpson grievance, at 19. But Willett's answers on cross-examination, read in the light
of the virtually unchallenged testimony of Stephenson and Juranic, show us that, at
least absent time for advance preparation, he could not take over Stephenson's course
in Safety, Materials and Tools or his course in Renovation Methods and Materials
Practical I. Nor, without preparation time, could he take over Juranic's courses in On-
tario Building Code Part 3/9, Construction Methods and Equipment I and Building Con-
struction II. Respecting each of these he demonstrated too little knowledge about basic
matters relating to required Course Outcomes to allow our finding in his favour. For
example, he had no knowledge of different kinds of joints, a matter central to Course
Outcome # 2 in Safety, Materials and Tools, and he knew little about the theory and
practice of tool sharpening, central to #3. As another example, he could not accurately
distinguish between parts 9 and 3 of the Ontario Building Code, the whole point of
Course Outcome # 1.0 in Ontario Building Code Part 9/3.
If we were to read art. 27.06 to allow art. 11.02 A 1 (a) preparation time, we could
not come to a different conclusion. The weaknesses in Willett's knowledge relate to two
of Stephenson's courses and to at least three of Juranic's. We do not doubt that he has
been a fine teacher of courses in the area of electricity. And we have no reason to doubt
that he has enough knowledge of construction practices to engage competently in his
modest part-time business as a house renovator and to teach electricians what they
need to know to fit in on building sites. But, from the evidence we heard, we are not per-
suaded that six weeks would be enough to allow him to get that minimum of "compe-
tence" and "skill" in the courses of either Stephenson or Juranic to equal the threshold
of art. 27.06 (ii). About this we keep in mind that all the courses in question are those
where students learn the necessaries to enter the construction business capable of
operating efficiently, profitably and safely. We heard Willett's repeated assertions that,
with time to prepare, he could master the various courses sufficiently. The board in
Niagara College, Martin grievance, at 29, said that such "subjective statements" are not
enough. We agree. Adding the fact that he is a long-time teacher in the associated
areas of electricity who has been required before to get up courses fast helps only a
little. Some informed and independent opinion to the same effect as Willett's assur-
ances might have persuaded us, but the union called only him as a witness. The result
is that we cannot find that the many necessary details of the courses and the sophisti-
cated appreciation of how the construction business works on the site are things Willett
could pick up well enough in six weeks.
Having reached these conclusions, we need not consider whether the work of
Stephenson and Juranic as program coordinators and Stephenson's work in long dis-
tance education should be taken into account as elements of their positions for the pur-
pose of art. 27.06. Whether they should or not, the union cannot succeed.
The grievance is dismissed.
DATED at Toronto, Ontario, this 24th day of April, 1998.
Sherril Murray i.~
Rene St. Onge