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HomeMy WebLinkAboutSlomiak 95-03-16 IN THE MATTER OF AN ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (the "Union") - AND - GEORGE BROWN COLLEGE (the "College") AND - RUDY PORCO (the "Third Party") AND IN THE MATTER OF THE GRIEVANCE OF ANTONI SLOMIAK (OPSEU FILE NO. 94D999) BOARD OF ARBITRATION Robert D. Howe, Chair Sherril Murray, Union Nominee George H. Metcalfe, College Nominee APPEARANCES For the Union George Richards, Sr. Grievance Officer Antoni Slomiak Winston Cheung For the College Michael J. Kennedy, Counsel Regina Lapworth For the Third Party Rudy Porco, Incumbent A hearing in the above matter was held in Toronto, Ontario on March 8, 1995. AWARD The grievance, dated May 9, 1994, which has been referred to this Board of Arbitration (the "Board") for determination in these proceedings is based upon Article 17 of the Collective Agreement and alleges that the grievor, Antoni Slomiak, has been "unfairly and unequally treated by not being allowed to have access to a vacant position (General Maintenance Worker at Casa Loma Campus) for which [he has] the qualifications, experience and seniority". Article 17 contains provisions regarding job postings, promotions, and related matters. The relief sought in the grievance for its alleged contravention is that the grievor be given the opportunity to fill the position in question. The grievor has been employed by the College since 1968 and is currently a caretaker who, as a result of "red-circling" and "grandfathering", is in Payband 6. He was educated in Poland, where he obtained a journeyman's certificate in metal work with a specialization in machine repair. The general maintenance worker position which Mr. Slomiak seeks to obtain through these proceedings became open as a result of the early retirement of Bill Service in May of 1994. That opening was filled by Rudy Porco, a reproduction operator who had been declared surplus by the College in March of 1994. Article 15 of the Collective Agreement contains extensive provisions regarding layoff and recall, including a detailed bumping procedure and provisions regarding the establishment and functioning of a committee composed of up to three persons appointed by the Local Union and up to three persons appointed by the College. After Mr. Porco had been declared surplus, the Union and College representatives on the Employment Stability Committee, including Marilou Martin, who at that time was the President of the Union's Local 557, met to discuss Mr. Porco's situation. At that meeting, the Union suggested that the College allow Mr. Service to take an early retirement and that Mr. Porco be permitted to fill the resulting vacancy. In making that proposal, the Union did not suggest that the College would be under any obligation to post that vacancy, as it was common ground between the Union and the College that employees (such as Mr. Porco) who had received a layoff notice under Article 15 should be given first priority to fill vacant positions. That matter had previously been discussed at a meeting of the Employee/Employer Relations Committee, as reflected in a memorandum dated December 22, 1993, which reads as follows: MEMORANDUM TO: Sally Layton, Co-Chair Marilou Martin, Co-Chair George Brown College - Union College Committee FROM: Guy Bertrand, Co-Chair Larry Sauer, Co-Chair Employee/Employer Relations Committee - Support Staff DATE: December 22, 1993 RE: ARTICLE 15 - HOLDING VACANCIES In your memo dated October 21, 1993, to EERC, you asked that the Committee provide you with our interpretation regarding holding vacant positions and the timing of such during the lay-off process. The EERC discussed this matter at the December 17th meeting and it is the opinion of the Committee that all vacant Support Staff positions that exist or arise at the time that notice is given to the Union, in accordance with Article 15.2, should be kept open until the College is satisfied that the position(s) will not be filled by a possibly displaced employee. The reason for this interpretation is based on Article 15.4.3, that shows that first priority in placing redundant employees is into vacant positions. The preamble of Article 15.4.4, states that this right begins at the point where an employee is identified. The initial identification of an employee occurs when notice is provided to the Union in Article 15.2 and at that same time, the College should have formulated its "tentative determination" to undertake the action contemplated. We hope that this interpretation will be helpful to your Union College/Campus Committee. The Union's suggestion that the College allow Mr. Service to take an early retirement and permit Mr. Porco to fill the resulting vacancy was accepted and implemented by the College, in reliance upon the Union's representations that there would be no obligation to post such a vacancy pursuant to Article 17 of the Collective Agreement. The Union and the grievor were ably represented at the hearing of this matter by George Richards, the Union's Senior Grievance Officer. After advising the Board of the undisputed facts summarized above, he acknowledged that the clear representations which had been made by the Union to the College regarding the manner in which vacancies should be filled during the ninety-day notice period contemplated by Article 15 estopped the Union from arguing that the College had breached Article 17 in the circumstances of this case. He further advised the Board that although he was sympathetic to the plight of the grievor, the aforementioned estoppel resulted in there being no difference between the parties for the Board to adjudicate. Mr. Richards also told the Board that he had attempted to thoroughly explain the situation to the grievor, but that the grievor was having considerable difficulty understanding and appreciating it. Thus, he suggested that it might serve a useful labour relations purpose if the grievor were permitted to address the Board. Counsel for the College advised the Board that although the grievor is a good employee, the College does not necessarily agree that he would have been the successful applicant for the general maintenance worker position if it had been posted, as Mr. Porco is highly qualified for that position. However, he agreed that in view of the fact that the Union is estopped from alleging a violation of Article 17 in the circumstances of this case, it is unnecessary for the Board to determine in these proceedings how Articles 15 and 17 interrelate. He also indicated that the College was not opposed to having the grievor make representations to the Board. After briefly recessing to consider the matter, we granted the grievor's unopposed request for an opportunity to address the Board. (A similar opportunity was also offered to Mr. Porco, but was declined.) The grievor told the Board that he has been attempting to be promoted to a general maintenance worker position since 1980, but has not been successful. He also expressed the view that his journeyman's certificate in metal work with a specialization in machine repair is sufficient to qualify him for that position, which he feels should have been filled by himself rather than by Mr. Porco. In commenting on the representations which the grievor made to the Board, counsel for the College acknowledged that Mr. Slomiak has applied for a number of positions. However, he also indicated that although the College has advised the grievor of the steps which he should take in order to make himself a more attractive candidate for promotion, the grievor has failed to follow that advice. It is not difficult for the Board to understand the grievor's dissatisfaction with his inability to obtain the general maintenance worker position which became open as a result of the early retirement of Mr. Service. However, the Board can also readily understand the Union's desire to protect bargaining unit employees such as Mr. Porco from being laid off as a result of having been declared surplus, and its efforts to facilitate the application of Article 15 through the Employment Stability Committee. Indeed, it may well be that no general maintenance worker opening would have been created for anyone to fill but for the Union's suggestion made during the course of that Committee's deliberations that the College allow Mr. Service to take an early retirement and permit to Mr. Porco to fill the resulting vacancy. As indicated above, it is common ground between the Union and the College that the Union is estopped from arguing that the College breached Article 17 in the circumstances of this case. Although we have duly considered Mr. Slomiak's representations to the Board, we are unanimously of the view that his grievance cannot succeed because of that estoppel. (We express no opinion as to whether it would have succeeded in the absence of that estoppel, as that is not a matter which it is necessary or appropriate for the Board to determine in these proceedings.) For the foregoing reasons, the grievance is hereby dismissed. DATED at Toronto, Ontario, this 16th day of March, 1995. Robert D. Howe Chair I concur. "Sherril Murray" Union Nominee I concur. "George H.~. Metcalfe" College Nominee