HomeMy WebLinkAboutSayers 93-03-22 LAMBTON COLLEGE
(The College)
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ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(The Union)
AND IN THE MATTER OF THE GRIEVANCE OF W.'SAYERS - #88A905
BOARD OF ARBITRATION: Kenneth P. Swan, Chairman
Ren~ St. Onge, College Nominee
Joe Herbert, Union Nominee
APPEARANCES:
For the College: C.C. White, Counsel
Vincent P. Johnston, Counsel
Gerry Silver, Director of Personnel
and Finance
Ray Rothenbury, Dean, Technology
and Applied Science
For the Union: Tim Hadwen, Counsel
AWARD
Following a preliminary award in this matter dated
October 25, 1989, the hearing was resumed on February 6, 1991.
Several days of hearing subsequently followed, after the course of
which written submissions were received from counsel.
This arbitration concerns the grievance of Mr. W. Sayers,
a Welding Instructor in the Department of Technology at the
College, dated February 15, 1988. The grievance related to an
allegation that Mr. Sayers, who had been teaching in the Welding
Program on a full-time basis and had been a relief teacher in
certain other programs, had been improperly laid off.
The grievance presented certain unusual features,
including the claim by Mr. Sayers to be able to combine part-time
and partial load teaching assignments into a full-time job, thereby
displacing the employees filling those assignments, and in the
process avoiding his own lay-off. The legal issues which this
presented were discussed in some length in the preliminary award,
and need not be repeated here.
We shall, however, set out the relevant provisions of the
collective agreement for ease of reference:
8.05 When the College decides to lay off or to
reduce the number of full-time employees who have
completed the probationary period or transfer involun-
tarily full-time employees who have completed the
probationary period to another position from that
previously held as a result of such lay-off or reduction
of employees, the following placement and displacement
provisions shall apply to full-time employees so
affected. Where the competence, skill and experience of
employees to fulfil the requirements of the full-time
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position concerned are relatively equal, seniority shall
apply consistent with the following:
(a) an employee will be reassigned within the College
to a vacant full-time position in lieu of being
laid off if the employee has the competence, skill,
and experience to perform the requirements of a
vacant position;
(b) failing placement under paragraph (a) above, such
employee shall be reassigned to displace another
full-time employee in the same classification
provided that:
(i) the displacing employee has the competence,
skill and experience to fulfil the require-
ments of the position relatively equal to the
employee being displaced;
(ii) the employee being displaced has lesser
seniority with the College.
(c) failing placement under paragraph (b) above, such
employee shall be re-assigned to displace a full-
time employee in another classification upon accep-
tance of the identical employment conditions as the
classification concerned provided that:
(i) the displacing employee has the competence,
skill, and experience to fulfil the require-
ments of the position relatively equal to the
employee being displaced;
(ii) the employee being displaced has lesser
seniority with the College.
(d) failing placement under paragraph (c) above, such
employee shall be re-assigned to displace a par-
tial-load employee (as referred to in Appendix II)
or a part-time employee upon acceptance of the
identical employment conditions as the partial-load
or part-time employee concerned provided that:
(i) the displacing employee has the competence,
skill, and experience to fulfil the require-
ments of the position relatively equal to the
employees being displaced;
(ii) the partial-load or part-time employee being
displaced has lesser months of service with
the College as determined in both Appendix II
and IV than such displacing employee's months
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of seniority;
(e) failing placement under paragraph (d) above, such
employee shall be reassigned to displace a
sessional employee (who has more than ninety (90)
days remaining on' the sessional employee's term
appointment) for the remainder of such sessional
employee's appointment provided that:
the displacing employee has the competence,
skill, and experience to fulfil the require-
ments of the position relatively equal to the
employee being displaced. Such a reassigned
employee shall be laid off without further
notice at the termination of the sessional
appointment.
8.08 (a) An employee claiming improper lay-off
contrary to the provisions of this Agreement, shall state
in the grievance the names of up to four (4) employees
(of whom no more than three (3) shall be full-time) whom
the employee claims entitlement to displace. The time
limit referred to in Section 11.02 for presenting
complaints shall apply from the date written notice of
lay-off is given to the employee.
(b) If the grievance is processed through Step
2, the written referral to arbitration in section 11.03
shall specify, from the.names of such employees original-
ly designated in (a) above, the name of only one full-
time employee or two or more partial load or part-time
employees (the sum of whose duties will form one full-
time position), who shall thereafter be the subject
matter of the grievance and arbitration. The grievor
shall be entitled to arbitrate the grievance thereafter
under only one of sub-paragraphs (a), (b), (c), (d) or
(e) of Section 8.05.
Letter of Agreement dated April 7, 1986:
Re: Displacement of Partial-Load Employees
This will confirm the advice given in negotiations
that it is the Colleges' intention that failing placement
of a full-time employee who has completed the probation-
ary period under Paragraph (d) of Section 8.05, the
College will give reasonable consideration to the written
request of a full-time employee about to be laid off to
continue a full-time assignment by displacing two or more
partial-load or part-time employees and the employee
shall set out:
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(a) the names of such partial-load or part-time
employees, each of whom, have lesser continuous service
with the college.
Upon receipt of such written request, the College
will consider the feasibility thereof taking into account
such features as:
(b) possible reduction in efficiency, quality of
performance or adverse effect upon the program objec-
tives; and
(c) the relative competence, skill, experience and
suitability as demonstrate with the College to fulfil the
requirements of the positions concerned.
Briefly, we concluded in our preliminary award that the
College was obliged, in the circumstances of this case, to give
consideration pursuant to the Letter of Agreement to the grievor's
claim to be able to combine certain part-time and partial-load
assignments being taught by other employees into a full-time
assignment for himself. That consideration would have to take into
account the factors set out in the Letter of Agreement, and the
relative seniority or service of the various persons involved. On
that issue, we considered the seniority or service of Mr. Jan
Snippe, one of the employees the grievor sought to displace,
without coming to a firm conclusion as to Mr. Snippe's precise
seniority or service.
The evidence presented to us over the several days of the
hearing in this matter is extremely complicated, and to a certain
extent there was some shifting of ground beneath the grievor's
claim as the evidence came in. For the purposes of disposing of
this matter, however, it is sufficient to give a somewhat general
description of the evidence, and leave its finer details, which
required graphical display to be understood, to one side. Briefly,
the claim ultimately advanced on the grievor's behalf was to
continue teaching certain aspects of his own previous teaching load
which had not been ter,~inaued, as had a substantial amount of his
welding teaching. Coupled with this, the grievor claimed certain
work being performed by Mr. Snippe, work being performed by Mr.
Marsh, and work performed by Mr. Ashmore.
While there are some significant obstacles to combining
all of these hours together into a workable teaching load for a
single person, the Union was able to respond to many of these
obstacles either in evidence or in argument. The Union makes at
least a prima facie case that a "plausible" teaching schedule could
be constructed, given a certain degree of flexibility on the part
of everyone concerned, and certain concessions from other bargain-
ing unit members which, the evidence suggests, they were prepared
to make. For the purposes of argument, we will assume that the
hours claimed could be combined into a workable teaching schedule,
and we will also assume that the number of hours per week, on
average over a teaching year, would be sufficient to meet the
definition of a full-time position in the collective agreement.
Central to constructing this schedule, however, is the
claim to the teaching being done by Mr. Jan Snippe. That claim
includes a block of teaching in the Industrial Maintenance Mechanic
program of four hours per week for 40 weeks, without which the
Union's proposed teaching schedule, already only marginally full-
time in total hours, simply fails to meet the definition of a full-
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time position. We therefore propose to turn first to that block of
time, and to assess the grievor's claim against the competing claim
of Mr. Snippe, and the provisions of the collective agreemen~o
Clause 8.05 sets out a series of what might be called
"bumping" opportunities for full-time teachers who are subject to
lay-off. At each stage, the competitive test between the employee
claiming to displace another employee of lesser service or
seniority is that the displacing employee have "the competence,
skill and experience to fulfil the requirements of the position
relatively equal to the employees being displaced". Under the
Letter of Agreement, the test is somewhat differently expressed.
First, the competition aspect of the "reasonable
consideration" which the College must make to a request to combine
partial-load or part-time assignments is expressed as "the relative
competence, skill, experience and suitability. . . to fulfil the
requirements of the positions". While it is not perfectly clear
whether what is intended by this is the same as the "relatively
equal" concept set out in clause 8.05, (and there may be scope for
argument as to whether the parties intended that the margin of
appreciation inherent in a relatively equal test is not there in a
"relative" test) the important factor is that "suitability" has
been added to the list of considerations on which the displacing
employee must compete with the employee to be displaced.
Second, there is a broader consideration of which the
College is entitled to take account, namely the "reduction in
efficiency, quality of performance or adverse affect on the program
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objectives" considerations set out in paragraph (b) of the Letter
of Agreement. This permits wider institutional concerns to play a
role, quite apart from the competition between the two employees
directly affected.
The other element here is the relative claim for
continuous service of the grievor and Mr. Snippe. This is a very
complex issue, which we attempted to come to grips with in our
preliminary award, without ultimate success. By the time of
argument in this matter, it appears to have been common ground
between the parties that Mr. Snippe was at all material times
either a full-time teacher or a partial-load teacher. If he was a
full-time teacher, there is no dispute that the grievor has
insufficient seniority to displace him. If he was a partial-load
teacher, then there is a difficult question of interpretation of
Appendix 2, and the computation of Mr. Snippe's continuous service
in accordance with the provisions of that Appendix. On one
arguable interpretation, Mr. Snippe would still have greater
seniority than the grievor; on another, he would appear to have
less. We shall return to this issue below.
Ultimately, however, the critical question is the
relative qualifications of the two individuals competing for the
teaching assignment. That issue is really central to the College's
reasons for not assigning the "plausible" teaching load which could
be identified to the grievor, and should properly be addressed
directly. We therefore turn to the relative qualifications of
these two individuals, beginning with Mr. Snippe.
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Mr. Snippe is a native of the Netherlands, where he
apprenticed as a welder and worked until 1957. He then immigrated
to Canada, where he requalified as a welder and worked until 1976
in a number of technical and administrative responsibilities in
welding. In addition to working as a welder, Mr. Snippe was a
welding inspector and a welding superintendent, responsible to
ensure that up to 100 welders working for his employer maintained
their welding "tickets", annual licences to perform a particular
kind of weld on a pressure vessel, which are awarded after a
practical demonstration of an ability to perform that weld to the
required specifications.
In 1976, Mr. Snippe was hired at the College, and he
worked as a full-time teaching master, essentially teaching welding
in a number of different applications, until his retirement in
early 1988. Since then, he has continued to teach the contested
block of welding courses on a partial-load basis.
In effect, Mr. Snippe designed the welding program for
the College. When he was first hired, he revamped the program then
in operation, and has revised it over the years as an integral part
of the trades training program. In addition, he has taught all of
the welding courses offered by the College over the years,
including about nine separate courses offered on day release
programs to employees of various local industries who are sent to
the College to upgrade their welding qualifications, usually on a
contract basis with their employers. There are also night courses
offered, all of which Mr. Snippe has taught at one time or another.
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He has also developed courses to teach the ASME Welding Code, and
has taught this theoretical aspect of the program for some ten
years.
In order to understand the relative qualifications of Mr.
Snippe and Mr. Sayers, it is necessary to digress for a moment on
the subject of welding "tickets". A ticket is, in fact, the
"Identification of Welder" document required under the Boilers and
Pressure Vessels Act, administered by the Ministry of Consumer and
Commercial Relations of Ontario. The only meaningful ticket is one
issued for an individual welder to perform a particular weld for a
particular employer; anytime a welder's employment changes, a new
ticket must be taken out for the new employer, involving a
performance test of the weld type required, destructive testing of
the weld and inspection of the workpiece by a welding inspector
from the Ministry.
There is no dispute that it is not necessary to hold a
welding ticket to teach welding at the College, but at the same
time an ability to get a welding ticket for a particular kind of
weld is the most practical test of competence in performing the
weld, and thus has a significant degree of relevance to the ability
of the holder to teach the performance of that weld. Mr. Snippe,
for example, last held valid welding tickets in 1974 when he worked
at Dominion Bridge; since that time, in his capacity as welding
inspector and welding supervisor first, and subsequently as a
College teacher, he has instructed other people on how to do the
welds, has done destructive testing in preparation for the
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inspection by the government inspector, but has not himself
requalified for a welding ticket. In fact, it would appear to be
impossible to do so unless he were employed in an industry where
the ticket were required. Even the College student~ who pass the
tests for welding tickets during their training receive only
tickets marked "seeking employment". Once they have secured
employment, they would be required once again to do the performance
test, subject to inspection by a welding inspector, in order to
hold a valid ticket which would permit them to work as a welder on
pressure vessels.
For purposes of comparison, we turn next to the grievor's
qualifications. Mr. Sayers' early experience was largely in the
area of automotive mechanics. In 1963 he received an "A" Automo-
bile Mechanic's Licence in the Province of Ontario, which he still
holds. Following a move to British Columbia, he received the
equivalent licence in that Province in 1968. He held various
positions in both provinces in the auto mechanics trade and related
businesses until 1976, when he was first employed by the College.
There is no dispute that the auto mechanics trade includes a
certain amount of welding, although not of a highly technical
nature.
In 1976 he was hired by the College as the Maintenance
Technician in the Fire School. This position was covered by the
support staff collective agreement, and included maintenance and
repairs on a range of mechanical equipment. In 1978, he trans-
ferred to the Multipurpose Shop Department at the main campus, the
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trades training area for a number of building trades. There he ran
the tool crib, which included not only accounting functions in
relation to tools and equipment, but also maintenance.
In 1982, the grievor's job under the support staff
collective agreement was phased out, but he was offered work as a
relief instructor in training courses offered by the College in
appliance servicing, automobile mechanics, and welding. Over the
intervening years until 1988, he performed teaching functions in a
number of areas, but for our purposes it is sufficient to concen-
trate on his teaching in the welding area.
The grievor frankly admitted, upon his arrival in the
welding program, that he had no high pressure pipe welding
qualifications. He was thus encouraged to develop those qualifica-
tions and he did so by enhancing his skills in the welding shop,
both on the College's time and on his own. It is his evidence, and
there is no reason to dispute it, that by the time of his lay-off,
he had achieved virtually all of the welding tickets which students
in the program would be expected to achieve in the course of the 40
week training. It is clear, however, that these formal qualifica-
tions were only achieved after the grievor had received at least
verbal, and later written, notice of his impending lay-off. The
grievor did these tests to enhance his own employment prospects,
and not for any reason related to his teaching skills.
It is clear from reading clause 8.05 and the Letter of
Understanding together that the College is entitled, when consider-
ing the feasibility of the grievor's request to displace a number
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of partial-load and part-time employees, to assess the "relative
competence, skill, experience and suitability" of the grievor and
each employee to be displaced. In our view, when the grievor and
Mr. Snippe are compared, there can be no question that Mr. Snippe's
competence, skill and experience in relation to teaching welding is
significantly greater than is the grievor's. There can be no
question that the language requires a competition between the
employees contesting the right to teach in the welding program; not
only is the language to that effect, but the amendments to the
language in the immediately succeeding collective agreement, which
change the inquiry into one of sufficient competence, skill and
experience, make it clear that relative qualifications were
intended in the collective agreement which applies to the situation
before us.
Whether "relative" qualifications means "relatively
equal" qualifications as described in clause 8.05 or not, we are of
the view that the grievor cannot establish on either basis that he
is entitled to displace Mr. Snippe. In coming to this conclusion,
we recognize that the qualifications of the competing employees
have to be assessed in relation to the job itself, and not against
some much higher standard, and we therefore have attempted to limit
the credit which we give to Mr. Snippe for his qualifications to
those of his qualifications which are directly related to the
teaching of welding during the relevant period at the College.
Thus, to a certain extent, his vast experience in very sophisti-
cated welding techniques cannot really assist him if that experi-
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ence is not necessary for nor relevant to teaching of less
sophisticated techniques at the College. Even after such discount-
ing, however, it is our view that Mr. Snippe's competence, skill
and experience as a welding teacher in the Industrial Maintenance
Mechanic program, which is the precise block of work claimed here,
is significantly superior to the grievor's.
In addition to competence, skill and experience in
teaching welding itself, Mr. Snippe brings years of experience as
a teaching master in the program, compared to the grievor's
involvement as an instructor. While no doubt the grievor had some
collegial input into the development and enhancement of the welding
curriculum, in fact the final responsibility for the curriculum was
in Mr. Snippe's hands at all material times, and he thus brings
additional competence, skill and experience in the academic
administration of the welding program into the competition with the
grievor.
In coming to this conclusion, however, we do not wish to
suggest that the grievor's qualifications are in any way inad-
equate. He has been a very successful teacher over the years, and
has displayed admirable initiative in upgrading his skills even as
his lay-off approached. He is a very able teacher who, unfortu-
nately must compete with someone who is better qualified for the
available work.
We also had evidence from the College about the impact of
the non-personal factors in paragraph (b) of the Letter of Under-
standing, "possible reduction in efficiency, quality of performance
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or adverse effect upon the program objectives", and evidence
relating to the additional "suitability" factor in paragraph (c).
While this evidence also enhances the College's case, we think it
is not really necessary for us to deal with it at any length here.
On the basis of this determination of the relative
qualifications of the grievor and Mr. Snippe, we therefore find
that the grievor's claim to displace Mr. Snippe cannot succeed.
That finding has the effect of knocking the central core out of the
Union's argument for constructing a full-time assignment out of
various pieces of teaching available at the time of the grievor's
lay-off, and as a result the grievance necessarily fails.
Because of the result which flows from our finding on the
qualifications issue, it is not necessary to decide the question of
the relative seniority of Mr. Snippe and Mr. Sayers. The facts
from which this question arise are very complex, and probably
unique to the way in which this particular lay-off took place. In
the circumstances, we think it better to leave the question
unresolved than to further complicate the interpretation of the
difficult language involved.
The Union also advanced an alternative argument that the
grievor'S lay-off should have taken place at the end of the 1987-88
academic year, rather than at the end of the autumn term of that
academic year. This argument is based upon an assertion that, by
the end of the autumn term, the grievor had already completed
sufficient weeks of full-time teaching so that, by augmenting that
teaching with available teaching during the spring of 1988, a work
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load falling within the definition of a full-time academic year,
which is basically 12 hours or more on a regular basis of teaching
per week, for a total of 38 weeks.
Without going into the details of this claim, it is
sufficient to observe that the Union's case depends upon some nine
weeks of teaching during the summer of 1987 being considered as a
part of the 1987-88 academic year. The College disputes the
grievor's right to claim these weeks toward that academic year, and
in our view the College is correct in doing so. All of the
evidence, including the grievor's own testimony, indicates that the
impending lay-off was known to the grievor and all other members of
the Department as early as March 1987. What took place in the
summer, therefore, took place in full knowledge that there would be
no further teaching available for the grievor as of the end of the
autUmn term of the 1987-88 academic year.
On that basis, it was agreed that the grievor, instead of
taking some nine weeks of vacation to which he was entitled in the
months of July and August 1987, would continue teaching on the
courses to which he was then assigned until those courses were
completed at the end of August. The grievor was thus allowed to
postpone his vacation entitlement until December 1987 and January
and February 1988.
In effect, this arrangement allowed the grievor to
continue his full-time salary for nine weeks longer than would
otherwise have been possible. Had he not taught during the summer
of 1987, the teaching would have been performed by someone else,
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and he would have had no vacation entitlement left when his
teaching assignment came to an end in December of that year. This
arrangement was clearly made for the grievor's benefit, and it was
formalized by a memorandum dated June 26, 1987 from the Chairman of
the Division to the grievor, signed and accepted by the latter on
July 1.
While this memorandum does not explicitly say how those
weeks are to be regarded in relation to various provisions of the
collective agreement, the evidence makes it obvious that the
intention of the parties was not to create some bootstrap right for
the grievor, but rather to permit him the maximum possible
extension of his employment status consistent with his teaching
obligations coming to an end in December 1987.
In the result, therefore, we reject both the Union's
primary claim on the grievor's behalf, as well as its alternative
argument. We wish to express our thanks to the parties for their
assistance in coming to grips with the unusual technical diffi-
culties of this grievance.
DATED AT TORONTO, this 22nd day of March, 1993.
K~n~ Chairman
I concur "Ren~ St. Onge"
Ren~ St. Onge, College Nominee
I concur "Joe Herbert"
Joe Herbert, Union Nominee