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HomeMy WebLinkAboutMartin 89-02-07 IN THE MATTER OF AN A~m±"i'i<ATION ~ BETWEEN: NIAGARA CObbm~m OW' APPLIED ARTS AND TECHNOLOGY [Tne College) AND: ONTARIO PUBLiU ~mRvlCE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCES OF K.W. MARTIN (OPSEU NUMBER 88C730) BOARD OF ARBITRATION: H.D. BROWN, CHAIRMAN R.J. GALLIVAN, COLLEGE NOMINEE WAYNE ROBERTS, UNION NOMINEE APPEARANCES FOR THE COLL~: NANCY A. EBER, COUNSEL GLENN R. PEVERE, DIR. OF PERSONNEL APPMARANCES FOR THE UNION: BRAN HERLICH, COUNSEL BARRY SHARPE, VICE-PRESIDENT, LOCAL 242 N. KOMAR, STEWART K.W. MARTIN, GRIEVOR HEARINGS IN THIS MATTER WERE HELD AT WELLAND ON APRIL llTH AND MAY 15TH, 1989. AWA R D While several grievances were filed with the Board at the ~lrst hearing, it was agreed by the parties that they would proceed only With tne grievance, dated August 25th, 1998, (88C730) by which Mr. Martin claimed that he had been improperly laid o~. The parties agreed that the Soard had jurisdiction to deal with that grievance. In accordance with Article 8.U~ (A; O£ the Collective Agreement in effect between the parties, the grievor named three employees which he claimea entitlement to displace. He proceeded with that claim against James A. Eden. The incumbent was given notice ana attended the hearings and was ~iven an opportunity to participate in these Droceedings on his own behalf. The ~ssue in the grievance before the BoarG anG aealt with at the hearings is wnetner the grievor is entitled to exercise the terms of Article 8.05 (b) of the Collec%lve Agreement which is as follows: when the College decides to lay of~ or reduce the number ot ~uli-time employees who have completed the probationary period or transfer involuntarily full-time employees who have comp±e~e~ the probationary period to another position from that previously he±a as a result of such lay-o£~ or reduction of employees, the followin§ placement ana displacement provisions snail apply to full-time employees so a~tectd. Where an employee has the competence, skill and experience to ful~ll£ the requirements of the full-time position concerned, 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 o~ a vacant position; (b) failing placement under paragraph (a) above, SUCh employee shall be reassigned to Glsplace another full-time employee in the same classification provided that: Il; the Displacing employee has the competence, skill, and experience to fulfill the requirements o~ tne position concerned; (ii) the employee Deing displaced has lesser seniority win tne College. It is agreed that the grlevor nas greater seniority than the incumbent, therefore, the issue is on ~ne terms of Article 8.05 whether the grlevor was qualified "to fulfill the requirements of a full-time position:: nela Dy the incumbent. Both the grievor an~ the incumbent are Teaching Masters at the College and taught in the Engineering Division of the College. The grievor was aGvlsed by letter, dated July zbth, 1988 of his lay-off, effective ~ctober 24th, 198~, at which date the grievor claims entitlement to displace Mr. Eden and requests a declaration to t~at effect and compensation from that date. - 3 - The Employer's position is tnat the grievor must nave the ability to teach the full position of Mr. Eden as at the date of lay-off and as he did not nave that ability, the grievor was properly laid off unGer the terms of Article S.05 which, the parties agreed, app±led in the circumstances of this case. The Employer's position is that the grievor must show that as of the date o~ the lay-off that he had the ability to teach the courses required of Mr. Eden Doth in the Fall and %~inter term which would be for the full academic year an~ that the grievor was unable to satisty that requirement. The Union took issue with that submission and its position the grievor had only to establish his ability to teach the courses at the time o~ the lay-off and not in the future for the full acaaemic year. Subsequent to tne hearing, Ms. Eber sent to the Boarc an arbitration award between St. Clair College ano u~s~U, dated May 15th, 19~9 (~arter), which dealt with the definition o~ "position" referred to in Article ~.US. By letter, dated July 4th, Mr. Herlich made two submissions to the Boar~, firstly, that it should not receive or consider the Carter decision anG, secondly, as to the conclusion wn~cn should be reached Dy the Board from that decision shou±~ ~t be considered. Dea±lng firstly with Mr. Herlich's oD3ectlon to the Board's use of the Carter award, the Boar~ notes that it was - 4 - lssuea on the same day as the last day of ~earlng of the instant case and was therefore not available to Counsel to deal With at the hearing. The Board further notes that the Carter award is directly on point ot an issue raised in these proceedings and deals with the interpretation of the same Collective Agreement and the same clause at issue in the present matter. In view of the immeolacy o~ the release of that decision following the hearings in t~is matter, it is our opinion that, in fairness to this Board, as well as to the parties, Counsel was obliged to bring such an award to the Board's attention, as well as to tne opposite party which Ms. EDer did, as the decision is substantially relevant to the issue with which this Boara must consider in determining this grievance. Both Counsel were given an opportunity to make written submissions to the Board as to the Carter award anG there is no prejudice to anyone by the submission ot this case to the Board. While we agree that post-hearing submissions of additional cases to those referred at t~e hearing when arguments were complete~ Dy the parties, shoul~ not normally be considered unless specifically o~rected by the Board, the circumstances o~ this case indicate a valid exception to that general practice. The Board therefore has receivea anG nas considered the Carter awar~ anG submissions of Counsel in that regar~ in its determination of the issues ~n the present - 5 - case. The onus lies with the grievor to establish his entlt±ement pursuant to Article 8.05 Ia; to displace ~lr. Eden as he claimed at the time or the lay-off to aetermine that that entitlement is a question of the facts relating to the grievor's ability to teacn the required courses as well as the Board's interpretation of the Collective Agreement in dealing with the evlaence acceDted by it. Most of the evidence o~ tne grievor is C~ear and uncontraalcted but some more particularly iaentl£ied below was contradicted and placeG in Goubt by the evidence of Mr. ~owDottom who is Chairman of the Manufacturing, ~4echanical and Construction Dlvlslon of the College. It must first De determined in dealing with the evlGence of the grievor's skill and exDerience to ~1£ the position claimed whiCh is that of Mr. Eden, is what courses are to De used for that determination anG at what point of time is the "position'~ to be considered. By Article 8.05 ~t is clear that the time for such consideration, is "when the College decides to lay-orr" which means the effectiVe Ga%e ot the lay-off of the grievor in this case wnlc~ was October 24th, 19~8. As of that Gate, under the terms of Article ~.U5 (b) the laid-off employee has the entitlement to Glsp±ace a less senior employee sub3ect to - 6 - the conditions set out in that Article to fill the requirements of the position. It must be a tull time position which is that which is covered by Article 1.01 of tile Agreement and both the grievor and the incumDent are full time Teaching Masters covered by that definition. '£~e question then is what meaning is to De given to "position" for the purposes of the application of Article ~.05 (b). As the time for determination of the grievor's SKiI± ls as of the date of lay-off, it is tne pQsition held Dy the employee who the grievor seeks to ~isplace which is a5 issue. His position at that time is mau~ up ota number of courses of teaching for whlcn ne is responsible and for wn~cn ne nas been assigned by the ColLege as ~nGlcated in the SWF's. Courses ~ lnstruction which he may be subsequently required to teach are not then part o~ ~ne position, although ~t is expected that as a full time Teaching ~4aster, ne will be required to teach for the academic year. Nonetheless, his position for the purposes of the lay-ot~ provisions is, we find, that which covers his teaching assignments as of the date of lay-off. The Carter award Gea£% wlt~ the interpretation of Article as a preliminary matter in that dispute and dealt with the definition to De given to the word "position". At page of that award the Board state~: "in the board's view, what one must do in this kind of case is to Ge~ermlne the core pattern of duties and responsibilities performed by an incumbent teacher Guring the course of her employment. It is this core pattern ot duties that forms the content of the position against which the competence, skill and experience of the displacing employee must De measured. If it can be established that a displacing employee is capable ot performing the core pattern o[ autles and responsibilities being performed by an incumbent with less seniority, then under the terms of Article 8.05 the incumbent would be displacea. in aetermining this core pattern os curies and responsibilities, however, it ls not sufficient to take a snap snot os the ~uties and responsibilities-6~ tne incumbent at just one point o~ t~me. Not only may some of the duties change from semester to semester, but some may also be peripheral to the central core of duties. Rather what we must ~o is to examine the actual work assignments given to an incumbent over an extenoeo period of time to identify the Das~c pattern of duties and responsibilIties performed by that incumbent. It is tn~s core pattern of duties that makes up tne position and provides an objective standard against which to measure tne competence, skill and experience of the displacing employee." The College's submission in that case was tnat Article 8.05 had createa a threshhold competition clause and "while a Olsplacing employee did not have to snow competence, skill anG experience relatively equal to that of the incumbent, it was still necessary to establiSh tnat she could satisfactorily perform the work of the incumbent" and in that regard it was possible "to determine tne content of the position based upon past experience . . . " That reference ano t~e conclusion reached by the Boaro in that - 8 - matter is significant in that it lnGicates that what is to be Getermined is the job content of the incumbent as at the date of lay-off together With the consideration of what had Deen the past requirements in that position. '£ne ~arter award did not define the position in terms ot tuture teaching assignments wnlcn would not be set by the Co±lege at that time for the entire acaaemlc year. If that was to be the criteria, it wou±G De possible to_defeat the seniority rights of the laid-off employee Dy structuring suture courses in a manner which wou±a ettectively prevent that employee from exercising the alsplacement rights under Article 5.05 (b). As this clause has Deen cnanged by the parties from a relative equality competition clause contained in past ~o±lective Agreements, to a sufficient aDllity requirement by which t'he lalG-off employee must meet the conditions set out in the Article, in order to give e~ect to the seniority factor. '£ne application of seniority is o£ significant importance to employees who are suD3ect to lay-offs and which must De given effect under the terms ot the agreement. We conclude tnat ~nls Article requires the grievor to have the requisite competence, skill and experience to fill the position as at the time os lay-off. The "position" at that time is that which the incumbent fills with his responsibilities for teaching assignments at that time. That is the position of Mr. Eden - 9 - who has been nameG Dy ~ne grievor as the individual he seeks to displace under Article 8.05 (b). We find that the grievor has the obligation to establish that as at the date os lay- off, he meets the requirements o~ Article 8.05 (b) to fulfil± the position o~ Mr. Eden within that definition. Having regarG to the Board's finding set out asove as to the definition ot "position" to be applied for the purposes o~ the application of Article 8.05 (b), the evidence relating to Mr. Eden's teaching assignments as at OctoDer 24th, 19~, which is within the Fall semester muss De considered with regar~ to the grievor's evidence of his skill anG experience to teach those courses requ~re~ by the College of Mr. Eden. The grlevor must establish that he met the conditIons ot the Article of the agreement un~er walcn he claims entitlement at tnat time so that it must be foun~ if his grievance is to succeed that he was fully capable ot stepping into the snoes ot the incumbent as it were in oroer to fulfill that position and therefore to displace the incumDent on the Pasts o£ n~s greater seniority. That principle has not, in our opinion, changeG ~rom ~ts application under the previous wording of Article 8.05 which was c~nfirmeG ~n an award Re Conestoga College and (Samuels - December l~) in which at page 2 the Board s~a%eG: :'under Article ~.05 the grievor only nas a right to displace a less senior employee if he can walk right in an~ - 10 - ao nls 3oD. This has been confirmed in all the cases involving this provision - Conestoga College (grievance of Bailey, unreported decision o~ Brent, September 6, 1983); Connestoga College (grievance of Rennie, unreported dec~slon ot Brown, October 23, 1985); Conestoga College (grievance of Keating, unreportea decision of Shime, January ±b, 1985); and St. Lawrence College (grievance of Brown, unreported dec~slon o~ Shime, September 11, 1986." The grlevor testified that he became employeG Dy the College as a Teaching Master in August 1984 and taught in the manufacturing - mechanical - engineering division of the College ot production engineering sub3ec%s to students who were manufacturing engineering tecnnologists and industrial engineering tecnnicians and production management to first and second year Canadian business students. The grievor is a Pro~ess~onal Engineer in Ontario and nolGs qualifications as a B.SC. ProGuc~on Engineerin~ (U.~.), is an Associate ot the College of Advanced Technology, Sirmingham, England, where he nolGs the designation of Chartered Engineer, has a diploma of Industrial AGm~nlstration and is a qualified tool an~ maker. His positions prior to his employment at the College in Canada ~nc~u~ed a Tooling & Methods Engineering ~4anaqer, Stratford; an ~wner/Operator of a Manufacturing Company, Mar~n-Hall Ltd. in Stratford which suppl~ed A.O. Smith of U.S.A. w~tn type 1.2M BThU Heat Exchanger Units; was a ~ar~ner & Production Manager of'F±ex~u±e Dynamics Ltd. and Manufacturer of flexible metal expansion - 11- joints an ~trat£ord. He taught part-time at ~onessoga College in their machine shop an~ apprenticeship programs between i~;b - 80. He was also a Sessional Teacner at Fanshawe College in .19~0 for Engineering Drafting, Manufacturing Frocesses, Related Engineering for Honel Management. From 19~U - 84 he was a full-time Teaching Master at Lambton College in Sarnia where he taught Machine Shop Practice, Metrology and Inspection Techniques, Manufacturing Processes, Materials Science, Strength o~ Materials, Basic CNC & RoDotzcs, Industrial Engineering and Man Management, Plant Layout and WorkstuGy. '~ne grievor file~ with the Board a list oZ courses which he had taught at the College since his employment from tne ~'a£1 of 1984 and, in addition, those courses which he taught at Lambton anG ~onestoga Colleges, the relevant par~s o~ which we refer to below in the assessmen~ oz the grievor's ability to ~lll the requirements of the position re~erreG to above. Having regard to that finding, tne courses which Mr. Eden taught zn the Fall of 1988 are relevant. 'zne Kxnibit filed in~icateG tnat Mr. Eden taught MECH 423, Plastics Technology; MECH 431, Material Technology 11; MECH 520, Design and Experiments I; MECH 530, WelG~ng Technology. The gr~evor considered the evidence given w~sn respect to each o[ these courses in the foregoing orGer. MECH 423 is descr~oeG ~n the Course Information (Exhibit 11) - 12 - as follows: "This course proviGes an introduction to the technology o~ polymers. Topics include the production, classifications, application and operations involving polymers.~' The grievor's evidence is that he aaa not caught this course De,ore as it had not been in existence prior to the Fall semester in 1988. It was taken out o~ tne context of Manufacturing Processes Courses where he taught metallic aha non-metallic materials including plastic and-dealt with the process, machines and theory. The course content was taken from an engineering techno±oglst text which included ceramics' and standard books for manufacturIng processes used at the College. He said these parts of this course incluae~ courses which he taught at the college which would overlap with MECH 423 and specifically referred to Prod. 211, ~.IECH 215, MECH 319, Prod. 210 and 334, Prod. 22U at N~agara. At Lambton he referreG to M~CH 250 and at Fanshawe MECH 105 which was manuZacturing processes and Conestoga MTO IUIB Industrial EngineerIng. He said the subject matter in these courses overlap the ~escription of MECH 423 so that as o~ October 1988 he nag the competence and skill and experience to teach this course. He said he has taught courses similar to this, but not ~ne exact topics as set out in the Course Information. I4r. Rowbottom is the Chairman of the Manufacturing - ;4ecnanlcal Construction Division of the College and had been the Co-ordinator of the Mechanical Dlvision at Lambton Co±±ege during the time when the grievor taught at that College. He holds a B.SCI. in Mechanical Engineering and a Masters in Applied Science and Chemical ~nglneering. At 5ne±± Canada he was employed as a Design 5ng2neer r~sponsible =or the non-destructive testing tnereinafter referred to as NDT) area. At Lambton 85% of his duties related to teaching, the balance to his duties as a uo-ordinator of four programs. In his current 3oD ne is responsible to manage the sta==lng of the department ano to allocate teaching duties, Duage~s and maintenance of equipment and supplies, curriculum ano supervision o= staff and does not teach. It is his evidence that MECH 423 basically concerns the testing of rubber and plastzc materzals involved in making rubber ana plastic products, as well as t~e structure of various rubber and plastics, a course in organic chemistry for polymer - chemistry or relatea zndustrial experience along with experience zn uestzng of these materials is necessary to teach the course. In his opinion, the grievor COUld not teach that course because of the requirements in e~sner of those backgrounds and.at most could teach the Introductory portion in the ~lrst week only. He said this course arose as a result of job placements in the Industrial Engineering Program and to better prepare those students to work ~n that field. The area ~s under constant evolution and had been given in small components in other courses, but ~t Decame an entirely new area of stuGy in the programs o£~ered at the College. ~.laterials Technology II (MECH ~31; is Gescribed in the Course Information ~sxnlbit 10) as follows: "Students are introduced to Non-Destructive testing procedures which they use to perEorm tailure analysis on steel par%s aha too±s. Formal analysis reports are written .by the students on several ~alled Darts. They will also be introaucea to Alumf~um and its alloys, Stainless Steels with emphasis on their neat treatments, physical properties, and uses. A general introduction to p±atlcs, their composition, physical properties and uses will also be stu~le~." The grievor testified that the course nad been taught for three years prior to his lay-o~r ana that he had not taught the course. His evidence is that ne nas taught the subject matter o~ the course in other subjects, ~-lechanics ot Materials (F MECH 337) in the Fall ot 1986 anc covered NDT in that area. He also re£erre~ to ~ECH 319 Material Science in the Fall of 1985 which covered introduction to Aluminum and Alloys and the general introduction to Plastics. He used the same text which would be used in 431. In the summer 1985 he taught Manufacturing Processes (PROD 123) to welGing technicians which inc±uGed the testing and failure of modes and wel~lng. In the Fall of 1984 he taught - 15 - Machine Design Practical (MECH 325) to Mechanical Engineering Technicians covering areas of pressure vessels and the poller code. He said at Lambton he taugnt Strength of Materials (MECH 410 L) and MECH 480 including NDT and invo±vea several types of material testing. He also testified as to his practical experience relating to that course in NDT in his Manufacturing Company. '£ne grievor said that as of October 19~S ne had the competence, skill and experience to teach that course. Mr. Rowbottom's evidence is that the grlevor had the skill and experience to teach aDout ~U% of that course and would have difficulty with the polymer portion and NDT and failure analysis. NDT is an examination of the material for flaws anG Getects involving a number of different methods including magnetic particle inspection, ultrasonic and radiographic. To teach this course woulG ~nvolve related industrial experience and a course taught by the Canaa~an Non- Destructive Testing Institution in Hamilton along with industrial experience leading to certl£ication at G~terent levels. Failure analysis Gea±s with metallurgical type tailures which requires experience ~n the field in order to teach it. It is his eviGence that there is no overlap with MECH 337. PROD 123 had some overlap in plastics and welding. There was no NDT in MS~H 325 modes of failure - 16 - analysis. There was no NDT content in MECH 4 1011 at Lambton or any overlap with material technology II. Mr. Rowbottom testitlea that the grievor did not teach NDT theory at Lambton in MECHS 480 and 4UUL. He taught those courses while they existea and until the winter semester of 1985. He said he was the only person at Lambton to teach NDT and it was not possible that the grievor had taught that subject. The grievor had taught courses on the Strength of Materials but none o£ tnem deal~'with ~DT and failure analysis. He does not hold a certificate in NUT, but had worked in the field anc was responsible lor qualified individuals who worked under his supervision. Me said the courses the grievor had taugnt at the College did not overlap with NDT and Failure Analysis. He acknowleaged that the grievor does hold an Nu'i' certificate. Design of Experiments (MECH b2U) is described in the Course information (Exhibit 12) as follows: "ThiS course provides the principles or the statistical design of experiments, including such.topics as randomization, replication and blocking, sasic statistical techniques, including the analysis of variance as applle~ to experimental data are also covered, as well as the use of orthogonal arrays and linear graphs." The grievor saia t~at before October this course nag peen taught once at the College. He had not taught this course, - 17 - but had taught courses which overlapped with it. He referred to courses taught at Lambton in Industrial Engineering TECH 585 and ~5 which relate to the use of statistics and management tools in the design of experiments. He has an academic background in the use of statistics. His practical experience was in the areas of pre-production experiments using some form of design. He agreed that ne had not taught at Lambton three of the topics under ~ne heading "Comparison o~ '£reatments" in the Course Information document but said the material is from a text bo-ok and was one of the Management tools referred to in the Industrla± Engineering course which he did teach, but he would not have taught the same content matter. Those courses were designed for a Quality Program and he was teaching a general overview course. He also agreed that he had not taught at Lambton the topic "Introduction to Factorial Experiments" set out in the Uourse Information. Some reference would have been made in those courses but without saying the text. He was vague as to the extent of reference but did not think it would be at greater depth at Niagara. His evidence is that as ot October 1988 he had the competence, skill and experience to teach this course. Mr. Rowbottom testified that MECH D~U relates to a method whereby dominant factors can be determined in the outcome ota process used to do experimental work in agricultural, medical an~ manufacturing fields. It was - 18 - first taught at the College in the Fall of 1987 Dy Mr. Eden to students in Industrial Engineering who nag reported their experience from their practical periods in that course to that class, but were not teaching the course as was suggested nere. He said there was no overlap in that course and '£ECH 585 and 685 at LamDton. Design of Experiments is not a regular part of statistics. He salG the grievor could teach only a part of this course and for the remainder he would nee~ either course work or related industrial experi~-nce w~lcn is difficult unless working with someone who has had the skill. Welding Technology (MECH 53U; is described in the Course Information (ExhlDit 13)as follows: "Welding tecnnology introduces the student to some of the theory and basic concepts oz the tollowing welding processes: a) Shielded ~letal ARC (~MA~; b) FLUX Core~ a~C (FACW) c) Gas Metal ARC (GMAW) G) cas Tungsten ARC (GTA%{) e) SubmergeG A~C (SAW) Although no p~actical welding is performed by the student, there wzll De approximately four demonstration labs performed by the instructor." The grievor testified that this course had been taught przor to October 1988 by ~4r. Eden who was co-ordinator the welding program and while he na~ not taught that - 19 - specific course, ne nag taught the subject matter in Manufacturing Processes II (PROD 211) in the winter of 1987. That course relates to A~U and FLUX techniques, Tungsten and Submerged welding. He sala aDout 20% of that course dealt with welding, in aaaltion, a small portion was oealt with in Mech 532 which incluGea tne welding of 3oints. He has dealt with metnoGs os 3olning plate and procecures of testing with pressure vessels and taught those techniques four times incluGlng a course at Conestoga College where ne taught the blueprints and theory ot we-l~ing techniques. In practical experience he has demonstrated we±dlng procedures and obtained Ministry ot Labour certificates and had trained other employees in his Company in we±ting in Manpower courses. He held welGlng tickets in braising for end fittings o[ neat exchangers. He was reg~stereG at Conestoga College as a Trainer on the welding process and general shop tecnnol.ogy. He said he was qual~tled to demonstrate all five proceGures in the Course Description as he has done all o~ tnem including Underwater v~e±Glng in the Navy and has held tickets tor all five procedures. He said he had the competence, skill and experience to teach the welding course in October 1988. Mr. Rowbottom testified that while b30 is mainly a theory course, Gue to the short time of practical demonstration component by the instructor who demonstrates the five different types ot welding and said that it - 20 - generally takes several months to be skilled in a process. He agreed that the grzevor aid teach PROD 211 but said there was no overlap between those two courses as there is no practical welding demonstration required. There had been a previous welaing technology course but this was tne ~lrst time this course was ordered in a two hour per week format and was a alz~erent course than the former WEL~ z3u as to the practical component. The submission of the Union is that the grlevor's academic and practical experience in teaching the exact courses or those related to them in course content supports his claim that he was aO±e to fill the position as at the time of lay-o~, it was submitted that the conflicts in the evidence between the grievor and Mr. Rowbottom shoul~ be resolvea in ~avour of the grievor whose recollection of the courses which ne ~ad taught should be preferred and, as well, notea that a large number of areas dealt with Dy t~e grievor were uncontradicted. M~UH 319 overlapped with MECH 431 anG ~z3 and involved the same text. In the Fall semester 1986 the grlevor taught ~ECH 337 and some area covered in LAB5 ana NDT and MECH 325. In its submission the overlaps in these courses are su~£Iclent to establish the grievor's aDl±~ty to teach the courses of Mr. Eden's position in October 1988. It was suDmltte~ the grievor had practical experience in the demonstration of the welGlng processes and had taught wel~ing as a supply and part-time teacher at Conestoga and was involved in we±alng in his practical experience. MECH 423 was a new program but the grievor hag usea the same text in another course he taught, and there was overlap with MECH 25u, prod 211 and ~lECH 215. The grievor had taught some aspects of plastics at Fanshawe CoAlege. It was submitteG rna5 there were no obstacles to concluGe ~nat the grievor could teach this program. At was submitted that the grievor nag covered Statistics while teaching at Lambton in Industrial Engineering anG nad practical experience in the design of experiments. At was submitted that unlike previous arbitration awarGs which dealt with the relative ability clauses found in the previous Collective Agreements, the test is now %na% ot sufficient ability for the purposes of Article 8.05 (D; aha In its submission the grievor baa met that thresnnolG test and was qualified at the time or lay-off to teach the courses which were then being taugn~ by [.ir. Eden an~ snouAG have been allowed to displace Mr. Eden at that time. It is the submission ~or the College that the issue is whether the grievor had the competence, skill and experience to fill Mr. Eden's position which in its submission dealt wltn the full academic year. The Col±ege relied on the evlGence or Mr. Rowbottom which in several areas contraGlctea t~e assertions of the grievor's previous experience in teaching in aeslgn and experiments and NDT. In its submission the overlaps which occurrea in some courses were not sufficient to cover the requirements of the courses taught by Mr. Eden at that time. The grievor, in its submission, did not establish tnat his skills in his involvement or other courses were transferrable to teach EGen's position and therefore did not ~et the onus on him to estaOllsn n~s entitlement under Article 8.05 (b). Reterence in that regard was made to ~e Conestoga College and GP~KU {~nlme, January 19~5) at page 2 where the soard stated: "In the final analysis, wn~±e we feel that some o~ Mr. Keatings skills are transportable, it would only De a guess on our part as to whether Re coulG perform the full range of duties required of a counsellor.~' Reference was also made to Re Conestoga College anG UF~EU (Brown - October 1~5; where it was found that: "The College is. not required under the Collective Agr.eement to allow a displacement by a senior employee unless that employee has the immediate confidence and qualilicat~ons within the meaning of Article u.uD ~o carry out the course objectives . . . The grievor did not establish in n~s evidence that he coula suitably perform all of the teaching functions required of Mr. Chilton in the Industrial Maintenance Mechanical program. The ~o±±ege is entitled to rely - 23 - on its Teaching Masters to cover all O~ the functions in a particular course required of that teacher and in circumstances of the continuous intake or students and a rotation with other Teacnin~ Masters both in the theoretical and practical application of the various subject. It is clear to the Board that the grievor could not meet those demands within the meaning of Article ~.uD." For the purDoses of this award, the Board has c~ndensed the evidence os the two main witnesses called in these proceedings dealing with the requirements of the position which we have Ge~lneG above as at the date or the lay-off of the grievor, but we have considered all of the evidence given by the witnesses which necessarily requires a determination of their credibility in some o~ their evidence in these proceealngs In order for the soard to determine the issue under Article 8.05 (b) relle~ on Dy the grievor. It is difficult indeed to make such a determination in testimony given by two intelligent, qua±~leG and well meaning participants in the instructional o~ activities of th~ college. In the total context o£ tne ~ssue however, the Boar~ is obliged in cons~Geration of all of the evidence to assess the appropriate weight or ~ne evidence as to its ~etermination of whether the grievor met the onus on nlm to establish that as at the date o~ lay-o~ ~e met the' conditions of Article ~.U~ ~b) to fulfill the requirements o~ tne posltion of Mr. Eden who ne sought to displace following his lay-o~. In making - 24 - this decision the Board must conslGer the probabilities in the statements of the witnesses in relation to the issue and determine the contradictions Which arose in parts of the testimony accoralngly. On that basis we have preEerred parts of the evidence o~ each wlsness to the other but have not re3ected the balance of their testimony as we ~lnd that neither of them was attempting to mislead the Boara Dut rather had formed definite opinions in some areas In dispute based on their reco±lectlons. We have taken these factors into_~account in our determinations in tnls case. There are a number of areas which are uncontradicted insofar as the grlevor's qualifications in each of the courses requireG in that position in ~ne 1988 Fall semester. There are also, as indicated above, ~irect contradictions as between Rowbottom and the grievor in significant areas of two courses covering NDT anG F±astics. We also note the grievor's fair acknow±eGgement that Rowbottom ought to know the courses which ne ~ad taught as he was the Co-ordinator at Lambton and his supervisor both there and at ~.~iagara. The Board finds on the evidence that the grlevor met the test of establishing his qualltications to teach the We±Glng Technology and ~,~aterials Technology II courses. Uhile there was some indicatIon of conflict as to the - 25 - grievor's teaching experience as to welding, Mr. RowDottom acknowledged that while the information was not given to nlm at the interview with the grievor he accepted the grlevor's assertion of his ability and past experience with regard to welding processes which corresponded to those in the Course Information. The evidence indicates to us that the grievor nag peen Doth academically and empirically qualified to teach each o£ the parts referred to in Weld 53U Course Information document set out above. The grlevor had performed all the we£ding procedures and establisheG that he coul~ demonstrate the required techniques. The soard is also satisfied that the grlevor demonstrated his qualifications wlt~ regard to Non- uestructive Testing. There is ~rect contlict in the ev~cence in this regard, however, on Da±ance, we have resolved that conflict in favour of the grievor. The evidence was that the grievor held a certitlcate in NDT which is a basis at least for ~nstruction in that area. %~e must conc±uGe on the basis of the grieor's testimony concerning his involvement with NDT and tests of materials that on the balance of probabilities he had taugn% ~ne context of this course a~ LamDton. Apart from that however, there were otner areas of overlap with this course ~n MECH 119, 337 and 325. The same text was required in 431 as in other courses ~n which the grievor had been involveG - 26 - ana, particularly, with reference to tne tests required in the topics for MECH 319 which the grievor taught in the ~a±± semester of 1985. We are satls~iea that the grievor establlsnea his qualifications to teach MECH 431 to the extent required by the College in October 19~. The evidence indicates that M~C~ 423 was a new course in the program which tne grlevor acknowledged he ~aa not taught before. The overlaps trom otner courses which he had taught with Plastics indicated in MECH 319 one week o~ the use of plastics in design engineering. Mr. Rowbottom's evlGence is that the requirement for this course is concentrated and specialized whereby a backgrounG in organic or polymar chemistry or its equivalent is require~ Dy the College. The background of the grievor to teach anything other than introductory type technology is not De,ore the Board. The grievor c~a~med that he taught this subject in other courses at Lambton and Fanshawe but the $oar~ was not provided with course outlines for comparison purposes with the requIrement of MECH 423 .at Niagara in oroer to make the appropriate assessment in chat regard. The grievor uses the same text in MECH 319, however, it mus~ De concluded on the evidence that the grlevor's teaching experience in Plasslcs with regard to the Course Description, ~s limited to the extent that the Boar~ could not be satisfied that He cou±G teach that course to the requirements of the College as of the date or hiS lay-off. The grievor's academic background is in mechanical anG production engineering and his practical business and teaching experience is in the metallurgical field not chemicals or plastics. '£ne grievor has taught introGuctlon to polymar technology and the use o~ plastics relating to the use of machines £or processing plastics, Du~ as the course basically concerns the testing of rubber and plastic materials concerneG with making rubber and plastic products and structure of various rubber and plastics it rquires a course in organic chemistry or or polymar cnemistry or related industrial experience as a background to teach that course, we accept the evidence of Mr. ~OWDOttom in this regard that the grlevor's ~epth of experience in these areas, both at a practical and academic level, would not, be sufficient to meet tne CoLlege requirements of teaching in thiS course as of October 1988. We tlnc on the evidence that the grievor dla not establish that he had the required backgrounG or training or experience to teach ~lECH 423. MECH 520 is a course which exclusively involves the use of Statistics. The grievor's teaching experience in this area is limited to the use oE statistics within an Industrial Engineering course. The grievor indicated that ne nag only limited use in the application of statistics in his inaustrial experience. His academic training in statistics related back to a course in University in 1962 and has never taught the subject. Mr. Rowbottom's evidence, which we accept in this area, is that this course was first taught at the College in the Fall of 1987 by Mr. ~aen who was responsible for the course. He acknowledged that Mr. Martin could teach the course for possibly the tlrst week requirements which is a "review concept of probability and statistical mathemati_cs" but salG that the grlevor could not teach the balance WithOUt course work or related industrial experience which he did not have. we accept Mr. Rowbottom's evidence that ~nere was no overlap in the context ot the requirement of this course in tota± with the courses taught by the grlevor at Lambton re~erred to as TECH 585 and 685. While tne grievor maintained that ~ne subject had been previously taught as part ot another course, we accept the evlaence of ~4r. Rowbottom that thiS is a new course which was desl~nea to respond to new development in the practical application of statistics. ~[r. ~owDottom is responsible for the course wn~cn was taught by Mr. Eden and the gr~evor ~as never taught it, we nave pre~erred the evidence of ~4r. Rowbottom on this issue. Having regard to the ~oregoing conclusions reached by the soarG and the evidence before us, it ~s clear that - 29 - while the grievor is found to nave been able as at October 19~ to teach part of the teaching assignments of Mr. Eden at that time which amount to one-nalf of the course requirements of the position the grievor nas not established his qualifications to teacn two o~ the four courses required in the ~'all semester of 1988 which was then being taught by Mr. Eden, the individual wno tne grievor sought to alsplace. It is not sufficient in the application of the conditions of Article 8.05 (b; to aeal with potential skills. The Board must be satisfied on an obje~.ive basis that the position claimed could be ~ul~illed by the grievor to teach the course contents requireG Dy the College. To ln~er abilities from subjective statements of competence in areas o~ courses where there was practical unfamiliarity would be mere speculation Dy tne board which is not sufficient to discharge the grievor's responsibility in the application of this article. ~ne employee seeking to ~sp±ace another employee in a lay-oz~ must establish t~at he has the competence, skill ano experience to perform the requirements ot the position at that time. The $oara concludes that the grievor di~ not satisfy this onus. In the circumstances the Board finds that it is unnecessary to make a determination as to whether the grievor could have taught the two aoGitional courses taught by Mr. Eden in the winter term of 1988. As the grievor did not establish that he had met the requirements of Artcle 8.05 (b) at the time of his lay-off, in order to exercise his seniority to displace Mr. Eden, his grievance cannot succeed. Having regard to all of the evidence and the submissions of the parties and for the foregoing reasons, the Board finds that the Union did not establish that tne employer was in violation of the Collective Agreement in the lay-off o£ the grlevor in October 1988 as alleged in the grievance. AccorGlngly, it is the Board's award that the grieance is d~smlssed. DATED AT OAKVILLE, THIS %~ DAY OF OCTOBER, 1989.