HomeMy WebLinkAboutRoberts 98-05-19 IN THE MATTER OF AN ARBITRATION
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(hereinafter referred to as "the Union")
- and-
SAULT COLLEGE
(hereinafter referred to as "the College")
Grievance of Diana Roberts
Support Staff Collective Agreement
Before: M.G. Mitchnick - Chairman
J. McManus Union Nominee
B. Matheson College Nominee
Appearances:
For the Union:
G. Richards Senior Grievance Officer
S, Kennedy Staff Representative
D, Roberts Grievor
For the College:
P. Ross Counsel
D. Tremblay Dean Health Sciences,
Human Sciences, and
Teacher Education
R. Wright - Manager Employee Relations
Hearing held in Sault Ste. Marie on April 8th, 1998
INTERIM AWARD
This is a lay-off grievance in which the griever, Diana Roberts, claims that her lay-eft was due to an
improper re-assignment of her work to faculty members. Alternatively, the griever alleges that the decision
to select her for lay-off was not a good-faith decision triggered by business reasons, but rather by a desire
to remove her from the College because of her activities on the Workplace Health and Safety Committee,
as well as her filing of a successful grievance against her classification (moving her up from "Technologist
A" to "Technologist "B").
The griever, an R.N., was hired in 1993 into the Health Sciences' Nursing Program to assist the
faculty with the laboratory-practice side of students' training. Her duties generally included maintaining
inventory control and ordering supplies, setting up the mannequins in advance of practice sessions,
cleaning up and re-storing items after sessions were completed, and, increasingly during her employment,
supervising the students in their practice sessions. It is not disputed that the bulk of these tasks had fallen
upon the faculty members responsible for the courses up to 1990, when the decision was made by the
College (in better times) to hire a support-staff person to assist them. By the time of her lay-off the griever
was involved in supervising 3 sections of students at 2 hours a week per section, with another 3-4 hours a
week of supervision-time for students doing 'remedial' practice (the assessment and actual grading efthe
students' performance has always remained the responsibility of the faculty member).
In the spring of '97 this College, as had others, declared a financial exigency arising out of reduced
funding from the provincial government. That was followed by a process of lay-offs, and in the Nursing
Program the reduction was two faculty positions and one Technologist position. That latter position was
the griever's, being the only Technologist position that existed there. Responsibility for supervising
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students' practice time as a consequence reverted once again to the faculty members, although with
increased emphasis on critiquing the students' techniques as they went. The College at the same time
established a part-time Technician A position to handle the basic administration of the Lab, and that
position was allotted 6 hours of work a week. The position was offered to the griever, who accepted and
performed it for a short while. That work is conceded as properly belonging to a Technician A type of
classification, although the griever is also of the view that the 6 hours budgeted are insufficient to properly
meet the needs of the Lab (and that is an issue that continues to be under review by the College).
The primary element in the griever's improper work-assignment case relates to her hours of lab
supervision taken over since her lay-off by the faculty members. When the griever performed that, she
also was required to attend the lecture portion (2 hours a week) which preceded the hands-on practical
time, in order to provide assistance to the students that was consistent with what the professor was trying
to impart. All of these hours, the griever submits, formed the "core duty" of her Technologist B
classification, as ultimately recognized by the College in her re-classification grievance. And, she submits,
although the collective agreement is silent on the assignment of "bargaining-unit work", an implicit
restriction must be read into the collective agreement on the basis of its overall classification and seniority
provisions. For support on that submission, the griever relies upon Irwin Toys (1982), 6 L.A.C. (3d) 328
(Burkett). That case, it would appear however, dealt not only with different facts, but with an effectively
different issue. Following a strike, the company was slow to call back bargaining-unit employees,
preferring, one can discern, to handle a large portion of the reduced workload by the expanded use of
supervisory staff. A Mr. Gillingham, for example, by his own estimate was spending some 5 1/2 hours of
each shift doing routine bargaining work such as material handling, stock checking, and running machines.
An even more glaring case was that of a Mr. Keeugh, said to have been hired during the strike to be a
supervisor for the second shift. In this period following the strike, however, the company was only running
one shift, and Mr. Keough spent all of his time, under another supervisor, performing bargaining-unit work.
In the case of the paint-line supervisor, Mr. German, the company recalled only one painter instead of the
normal two, as the arbitrator put it, "requiring Mr. German to spend virtually all of his time working as a
painter on the line". Mr. Burkett wrote, at page 333-4:
We must now decide if the work assignments made by the company to its
foremen, at a time when bargaining unit employees were, and continue to be, on lay-off, is
in violation of the collective agreement. We start by observing that the absence of an
express restriction upon the assignment of bargaining unit work to foremen is not
dispositive. The language found in most collective agreements which sets out the
classifications covered by the agreement, creates seniority and recall rights and
establishes job posting procedures, gives rise to an implied restriction upon a company's
right to assign bargaining unit work to supervisors. This implied restriction has been
universally recognized by arbitrators. The recognition of this implied restriction forms a
part of the arbitral backdrop against which collective agreements are negotiated and
against which they must be interpreted.
That jurisprudence, however, Mr. Burkett sums up at page 334, using the following quote from his earlier
decision in Becker Milk:
A general principle of interpretation now exists that, absent an express restriction in a
collective agreement, a supervisor is free to do bargaining unit work provided he does not
do it to such an extent as to bring himself within the bargaining unit.
That is the issue as identified by the Irwin Toy case, and as Mr. Burkett went on to note, at page 335:
The implied restriction flows from the clauses in the collective agreement dealing with
seniority, job posting and lay-off and recall. These clauses give rise to rights in connection
with job bidding, bumping, and recall in respect of certain jobs or job vacancies. These
rights, however, can only be exercised in respect of jobs which would occupy a bargaining
unit employee for most if not all of a full shift.
Thus, in the case of Mr. Keough (who did only bargaining-unit work), for example, Mr. Burkett readily found:
Mr. Keough is filling a bargaining unit position which an employee on lay-off, with the
ability, training and physical fitness to do the job, is entitled to claim and we hereby so
declare.
(page 336)
In contrast, we note, on the question of a tow-motor job, the arbitrator wrote:
In circumstances where there exists about one-half of a tow-motor operator's job, the
recall rights of bargaining unit employees on lay-off are not triggered as would require a
board of arbitration to balance the right of the company to assign work as it sees fit and the
right of employees on lay-off to recall when work is available. There is no obligation upon
the company to recall a tow-motor operator who would be idle for three or four hours per
shift. It follows that in the absence of an express restriction in the agreement the company
is free to spread the tow-motor work which exists among other bargaining unit
classifications or among members of its supervisory staff.
(page 337)
That case, therefore, suggests that the argument the Union would have to make here is that the re-
assumption by the faculty members of the limited number of supervision hours performed for a time by a
support-unit Technologist to assist them, transformed those faculty positions into being in fact "support-
staff" positions. The Union, understandably, does not make that argument. What the facts here are
analogous to, indeed exactly analogous to, are the facts (and arguments) before the board of arbitration in
the Conesto.qa Colle.qe case (unreported decision of J. Samuels dated November 14th, 1988). That brief
and pointed decision sets out the following:
The grievor claims that she was "unjustly and improperly and unfairly laid off from
my position". She was a technologist in the Design-Graphic and Advertising Program.
She had been hired in August 1987 to assist the three teaching masters in the program.
Her work involved management of the inventory and equipment (maintenance, signing it
out), and giving demonstrations to students of the use of this inventory and equipment.
Most of the work she did had been done by the teaching masters before her hire.
Essentially, the Union's case is that the grievor and the bargaining unit had some
proprietary interest in the bundle of duties which the grievor was doing, and this work
could not be divided up and returned to the teaching masters and the student monitor.
The problem with this argument is that there is absolutely nothing in the collective
agreement which gives the grievor or the Union such rights.
Article 3.1 sets out management's rights. These include the right "to manage the
College, ... to direct it's personnel, ... to determine complement, organization, ... number,
location and classification of personnel required from time to time". In short, management
can determine what duties will be performed by whom, subject to the Union's right to
grieve the classification assigned to the person doing the bundle of duties (including
whether or not the employee is put in the proper bargaining unit), and to grieve if the
workload is too heavy, or if some other provision of the collective agreement is violated.
The essential point is that the collective agreement does not limit management concerning
the way in which it bundles duties in job positions. However, once a position is created,
the collective agreement governs the classification process, the wages paid, some of the
conditions of work and so on.
Under the collective agreement for academic employees, the College and the
Union have agreed to a class definition for teaching masters. In this definition, we read
that, in addition to teaching duties, the teaching master:
... may from time to time, be called upon to contribute to other areas
ancillary to the TEACHING MASTER role, such as ... control of supplies
and equipment.
In other words, the duties transferred back to the teaching masters from the griever's
position are duties which the parties contemplate as being performed from time to time by
teaching masters.
In sum, even if the Union proved all the facts on which it relies, these facts would
not disclose any violation of the griever's rights under the collective agreement. The Union
seeks to prove that the griever had some proprietary right to the bundle of duties which the
griever was performing, and the collective agreement does not give such a right.
The Union has been aware of that award, on this very collective agreement, since 1988. There has been
no change to the language. We find that that award amply disposes of the grievor's first claim here.
That leaves the allegations before this board of bad faith. The basis of those allegations have
been particularized by the griever in a three-page summary statement provided to the College prior to the
hearing. The summary sets out a number of health and safety issues on which the grievor has addressed
the College, either on her own behalf or on behalf of others. The College asserts that all of that (the
griever's characterization of which is not agreed to in any event) is irrelevant, and that its decision to select
the griever's position for redundancy was motivated entirely by the business considerations it has
articulated. That subjective question is not something the board is in a position to come to a conclusion on
without hearing the parties' evidence. To expedite that process, however, the board has suggested that
the parties consider developing an agreed statement of events and the griever's health and safety activities
(without celeuratien) that can be stipulated to start the next hearing. The calling of evidence could then
begin by the College providing its explanation of the lay-off decision, followed by any evidence (beyond the
agreed statement just mentioned) the Union feels is relevant to rebut the College's explanation. The
College would then have the normal right of reply to any evidence so called by the Union.
The matter will in any event continue with the parties commencing to call their evidence on August
21st, 1998.
Dated at Toronto this 19th day of May, 1998
M. G. Mitchnick
"J. McManus" J. McManus
"B. Matheson" B. Matheson