HomeMy WebLinkAboutMymryk 89-11-20 Ontario Public Service Employees Union
GRIEVANCE OF WILLIAM MYMRYK
BOARD OF ARBITRATION:
JANE H. DEVLIN CHAIRMAN
RENEST. ONGE COLLEGE NOMINEE
WALLY MAJESKY UNION NOMINEE
~ppearances for the College:
Nancy A. Eber
Glenn R. Pevere
~ppearances for the Union: ~ '...~..~
Bram Herlich ' ~
Barry Sharpe ~ '
William Mymryk
Date of Hearings: April 18, 1989 ~..' .... '~.
August 28, 1989 ~ .~
OPSEU File Nos.: 88B943, 88B971, 88C149 & 88C152
1
The grievance before the Board arises from the layoff
of William Mymryk which was effective October 24, 1988. The
Grievor claims that this layoff was contrary to Article 8.05 of
the Collective Agreement and in accordance with Article 8.08, he
identified Phillip'Scoones as the junior employee he was entitled
to displace.
The parties were in agreement that, for purposes of Mr.
Mymryk's grievance, the Board should be governed by the language
of Article 8.05 which came into effect on September 1, 1988 which
is as follows:
"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 involuntarily 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 an employee has the
competence, skill and experience to fulfill the requirements
of the full-time position concerned, seniority shall apply
consistent with the following:
" (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 fulfill the requirements of the position
concerned;
(ii) the employee being displaced has lesser seniority
with the College."
2
Unlike Article 8.05 as it existed prior to September 1,
1988, which contemplated a competition between employees, Article
8.05 now stipulates that seniority governs provided that the
senior employee has the skill, competence and experience to
fulfill the requirements of the position concerned. The first
issue to be determined, then, relates to the nature of the
"position" to which reference is made in Article 8.05. In this
regard, it was the submission of Ms. Eber, on behalf of the
College, that the position which the Grievor must demonstrate he
was capable of performing consists of the courses taught by Mr.
Scoones in both the fall and winter terms of the 1988-89 academic
year. In contrast, it was the submission of Mr. Herlich, on
behalf of the Union, that the Grievor need only demonstrate that
he was capable to teaching the courses taught by Mr. Scoones
during the fall term or, in other words, from September to
December of 1988.
In our view, the position of the Union on this issue is
correct. Firstly, Article 8.05 sets out the procedure to be
followed when the College "decides to lay off or to reduce the
number of full-time employees who have completed the probationary
period". In this case, the evidence indicates that when the
College made its decision to lay off the Grievor, the teaching
assignments for the winter term beginning in January of 1989 had
not been made. This was also true when the Griev0r received his
notice of layoff on July 25, 1988 and when he subsequently filed
3
his grievance in early August. It was at that. time, of course,
.that the Grievor was required to identify up to four employees
whom he claimed the right to displace. At the time of the
referral to arbitration, the.Grievor was further required to
identify one employee from those originally designated and as
indicated previously, the Grievor identified Mr. Scoones.
If this Board were now to consider Mr. Scoones'
position with reference to his teaching assignments during the
winter term of 1989, we would, in effect, be altering the nature
of the position considered both by the College in making its
layoff decision and by the Grievor at the time of the filing of
his grievance. This, in our view, could not have been the
intention of the parties and, for this reason, we are not
prepared to consider the courses taught by Mr. Scoones in the
winter term of 1989 as relevant to the position sought by the
Grievor.
In St. Clair College and Ontario Public Service
Employees Union, May 15, 1988 (Carter (unreported)), the Board
was called upon to consider the meaning of the term "position" in
Article 8.05. The board concluded that a "position" consists of
the core duties and responsibilities of the incumbent over a
representative period of his employment. Subject to the
qualification that this cannot extend to future teaching
assignments for the reasons set out above, we agree that this is
4
an appropriate standard against which to measure the skill,
competence and experience of the Grievor.
In this case, although the College introduced SWF's for
Mr. Scoones dating back to the fall of 1984, the evidence and
argument of both parties were directed to the courses taught by
Mr. Scoones in the fall of 1988. In the absence of any
submission to the contrary, we find that these courses were
representative of the core duties and responsibilities of his
position.
The courses taught by Mr. Scoones in the fall term of
1988 consisted of the following: ELNC 342 - Linear Circuits I;
DRFT 124 - Electronic Drafting; and ENGL 523 -Technical Report.
The College conceded that the Grievor was capable of teaching
Electronic Drafting and the only issue, therefore, concerns his
skill, competence and experience to teach the Linear Circuits and
the Technical Report courses.
Linear Circuits I is a course involving a detailed
examination of different types of amplifiers with particular
emphasis on operational amplifiers. The course is five credits
and is taught in the third term or, in other words, the fall term
of the second year of the computer, electrical and electronics
engineering technology programs. These are each three-year
programs for which the admission requirements consist of an
5
Ontario Secondary School Diploma at the general level or
equivalent including Year 4 technological or advanced, mathematics
and senior level physics.
In ENGL 523 - the Technical Report course, the Teaching
Master provides technical advice and guidance to the student in
the preparation of a technical report and also evaluates the
technical content of the report. This course is taught in the
fifth term or, in other wordS, the fall term of the third year of
the electrical engineering technology program. Technical Report
courses are also taught in the computer and electronics
engineering technology programs.
The evidence as to the Grievor's ability to teach the
courses outlined above is as follows: From 1951 to 1954, the
Grievor attended Ryerson Polytechnical Institute where he studied
Industrial Electronics at the technologist level. He did not
complete the program, however, as he failed mathematics in the
third and final year. In 1964, the Grievor obtained a vocational
teaching certificate and, for a period of approximately ten
years, while in the employ of the Lincoln County Board of
Education, he taught electricity and electronics to students in
grades 9 through 12. In 1974, the Grievor taught Electrical
Instrumentation at Niagara College on a replacement basis.
6
Apart form his teaching experience, the Grievor
testified that he also has experience in industry which he gained
primarily working at Jem Electronic, a Company he owns and
operates. Jem Electronic is involved in electrical
installations, electronic and electrical repairs and
troubleshooting.
The Grievor joined the faculty of the College as'a
full-time Teaching Master in the fall of 1978. He initially
taught Industrial Electronics, a Manpower retraining course which
was subsequently discontinued in 1983. Thereafter, he taUght a
number of courses, primarily at the technician level. The
Grievor has also taught at the technologist level and, in
particular, in the chemical and manufacturing engineering
technology programs. The Grievor testified that, as well, he
substituted on one occasion for another Teaching Master and acted
as a technical advisor in a Technical Report course similar to
that taught by Mr. Scoones in the fall of 1988. It would appear
that the student for whom the Grievor acted as advisor was in the
computer engineering technology program. In any event, as a
result of this experience, the Grievor testified that he was
confident of his ability to teach ENGL 523.
The Grievor acknowledged that he has not previously
taught Linear Circuits I but he testified that he has covered the
subject-matter in other courses he has taught at the College.
7
These courses consist of the following: Industrial Electronics;
ELNC 126 - Electronic Fundamentals; ELNC 424 - Industrial
Electronics; ELNC 225 - Solid State Devices; and ELNC 230 -
Electronic Techniques.
The first of the courses outlined is the Manpower
retraining course referred to previously which was a 64-week
program to upgrade skills. The course was designed to teach the
fundamental principles of industrial controls so that upon
graduation, the students might obtain employment in the
Industrial Electronics field as apprentices or trainees. The
Grievor testified that this program covered a broader range of
topics than the technician programs and that some of the material
was covered in the same depth as it would be at the both the
technician and technologist levels.
ELNC 126 - Electronic Fundamentals is taught in the
fall term of the first year of the electrical and electronics
engineering technician programs. These are each two-year
programs for which the minimum requirements consist of an Ontario
Secondary School Graduation Diploma or an Ontario Secondary
School Diploma at the general level or equivalent including year
4 mathematics.
ELNC 424 - Industrial Electronics is a course dealing
with electronics in industrial controls and applications and is
8
taught in the winter term of the second year of the electrical
.engineering technician program. ELNC 225 - Solid State Devices
is taught in the winter term of the second year of this program.
ELNC 230-- Electronic Techniques is intended to
familiarize students with the components and hardware of
(chemical) electronic test equipment. This course is taught in
the winter term of the secOnd year of the chemical engineering
technician program and in the winter term of the first year of
the chemical engineering technology program. For both of these
programs, the minimum requirements include an Ontario Secondary
School Diploma at the general level or equivalent including year
4 technological or advanced mathematics. At the technician
level, senior level chemistry is recommended while at the
technology level, senior level chemistry is required.
Anthony Backler is the Chairman of the Computer,
Electrical, Electronic and Horticultural Division and is
responsible for staffing and the delivery of programs within the
Division. Mr. Backler testified that he made the decision to
lay off the Grievor rather than a Teaching Master with less
seniority, because otherwise certain programs within the Division
could not have been delivered. In particular, Mr. Backler
testified that the Grievor lacked the skill and competence to
teach both the Technical Report and the Linear Circuits courses.
9
Insofar as the Technical Report course is concerned,
Mr. Backler testified that the Teaching Master must have a broad
range of knowledge and a University degree in electrical-based
engineering. Although the Grievor acted as a technical advisor
on one occasion previously, Mr. Backler testified that this was
an exception to the general rule. Mr. Backler conceded, however,
that the Grievor was not the only Teaching Master to have acted
in this capacity without a University~degree. In any event, Mr.
Backler maintained that the Grievor did not have a sufficiently
broad base of knowledge to teach Technical Report.
Mr. Backler also expressed the view that the Grievor
lacked the requisite knowledge to teach Linear Circuits 1. In
order to teach this particular course, Mr. Backler suggested that
a University degree is required, preferably in electrical
engineering. Although Mr. Backler did not dispute that the
Grievor has covered some of the subject-matter taught in Linear
Circuits 1 in other courses, he testified that the Grievor would
have done so at a much more superficial level. Mr. Backler
explained that the Manpower retraining course, for which there
were less stringent entrance requirements, could not be compared
with courses at the technologist where the treatment is different
and where the material is covered in significantly more depth and
more detail. In the electronics and electrical fields, Mr.
Backler also pointed out that the Grievor has taught at the
technician rather than at the technologist level. Mr. Backler
10
explained that at the technician level, the emphasis is on
application as the technician has a ,hands-on" approach and is
oriented to maintenance, troubleshooting and repair. At the
technologist level, on the other hand, the approach is more
theoretical; there'is considerably more mathematics and
additional features such a design. Mr. Backler explained that
the technologist often acts as a "translator" between the
professional engineer and the technician. For these reasons, Mr.
Backler testified that the Grievor's experience teaching at the
technician level would not have qualified him to teach Linear
Circuits I.
The issue, then, is whether the Grievor has the skill,
competence and experience to fulfill the requirements of the
position occupied by Mr. Scoones. In this regard, the evidence
indicates that on one occasion in the past, the Grievor acted as
a technical advisor for a student in a Technical Report course
similar to ENGL 523. While we understood Mr. Backler to suggest
that a broad range of knowledge is required because of the
diversity of projects which may be selected by students in such a
course, having acted as technical advisor previously, we are not
prepared to find that the Grievor lacks the skill, competence and
experience to teach ENGL 523.
Although the Grievor has not taught Linear Circuits in
the past, in our view, an employee is not confined to
11
demonstrating his skill, competence and experience by
establishing that he previously taught the particular course in
issue. Instead, an employee may demonstrate that he has
sufficient knowledge of the subject matter to be able to fulfill
the requirements of the position. Although the Union also
suggested that we ought to consider the fact that there is the
preparation time provided to Teaching Masters under the
Collective Agreement, we do not view this as a period in which it
is intended that the employee may become qualified for the
position concerned. In other words, the fact that preparation
time is provided does not alleviate the necessity to demonstrate
that the employee can meet the requirements of the position.
In this case, the evidence reveals that the Grievor has
covered a number of the subjects dealt with in Linear circuits 1
in other courses he has taught at the College. For the most
part, however, in demonstrating his capability to teach Linear
Circuits 1, the Grievor relies on the Manpower retraining course
and courses he has'taught at the technician level. Although the
Grievor has also taught at the technologist level, with the
exception of having acted as a technical advisor on one occasion,
he has not taught in any of programs in which Linear Circuits 1
is taught. The only course which the Grievor has taught at the
technologist level which he claims is relevant to Linear Circuits
1 is ELNC 230 - Electronic Techniques. This, however, is a
workshop course which is taught in the chemical engineering
12
technology program in which it was conceded that the students do
not have a background in electronics.
In our view, a distinction must also be drawn between
the Manpower retraining course and the technologist programs in
which Linear Circuits 1 is taught. In the Manpower retraining
program, it is anticipated that graduates will work as trainees
or apprentices and only after a further period of training is it
expected that they will be in a position to troubleshoot, repair
and maintain industrial control systems. This lends support to
the evidence of Mr. Backler that even in areas in which the
subject matter overlaps, the material at the technologist level
is taught in considerably more depth. Moreover, the Grievor
himself acknowledged that he is not aware of the depth at which
certain subjects are covered at the technologist level. The
Grievor also conceded that not all subjects taught in Linear
Circuits 1 were covered in the Manpower retraining program.
Although there is some similarity between the
technician and the technologist programs, once again, it is our
view, there are certain significant differences. Firstly, we
accept the evidence of Mr. Backler that, at the technician level,
there is greater emphasis on application. At the technologist
level, on the other hand, the material is taught in more depth;
there is more mathematics and there is greater emphasis on
theory. Although the courses in the first term of the
13
technician and technology programs are the same, this is not true
of courses in subsequent terms. In fact, it.was the
uncontradicted evidence of Mr. Backler that completion of the
technician program entitles a student to a credit of only one
year toward the appropriate technology program.
Based on the evidence, therefore, we are compelled to
conclude that there are significant differences in the depth and
the nature of the material taught at the technologist level when
compared with the material taught at the technician level. The
Grievor did not complete his own training at the technologist
level and we are not persuaded that the courses he has taught at
the technician level have provided him with the requisite
knowledge or with a sufficient theoretical background to teach
Linear Circuits l; nor are we persuaded that his experience in
industry has had this effect. Linear Circuits 1 is not an
introductory level course but is a five-credit course taught in
the fall term of the second year of the computer, electrical and
electronics engineering technology programs. It is a course
which Mr. Scoones taught on a number of occasions prior to the
fall term of 1988 and is unquestionably part of the core duties
and responsibilities of his position.
In the result, we are unable to conclude that the
Grievor has the skill, competence or experience to fulfill the
requirements of the 9osition. of Mr. Scoones. The grievance of
Mr. Mymryk is, therefore, dismissed.
DATED AT TORONTO, this 20th day of November, 1989.
Chairman
"Rene St. Onge"'
College Nominee
Dissent to fo.llow
Union Nominee