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HomeMy WebLinkAboutRadvansky 98-03-02IN THE MATTER OF AN ARBITRATION BETWEEN: Sheridan College, College, - and - Ontario Public Service Employees Union, Union BEFORE: Michael Bendel, Chair Jacqueline G. Campbell, College Nominee Edward Seymour, Union Nominee APPEARANCES: For the Union: Ursula Boynan, Counsel Libby Walters, Vice-President, Local 245 Joseph Radvansky, Grievor For the College: Larry G. Culver, Counsel Rosalie Spargo, Assistant Director, Human Resources Bob Bernhardt, Manager, Academic Alison Vallance, Director, Arts Department Pat Phibbs, Director, Student Resources Susan Bawden, Human Resources Warren Simpson, Intervenor Hearing held in Oakville, Ontario, on September 16, 1997, and January 6 & 28, 1998. -2- ARBITRAL AWARD Mr. Joseph Radvansky, who held a position as an audio-visual resource technician at payband 8, was assigned to a position as clerk general (atypical) at payband 5 in April 1996, after the College had identified him as a person subject to possible lay-off. In his grievance, he claims that the College violated Article 15.4.3 of the collective agreement by not assigning him to the position of gallery director/model co-ordinator in the Arts Department. This latter position, which was in payband 8, was occupied by Mr. Warren Simpson, an employee with less seniority. According to Article 15.4.3 of the collective agreement, the grievor is entitled to be assigned to that position on the basis of his greater seniority if "he can satisfactorily perform the require- ments of the j ob". The collective agreement, in Article 15.3, establishes a procedure to be followed in attempting to find positions for persons identified as subject to lay-off. A joint manage- ment/union committee meets to consider possible assignments and makes recommendations to the president of the College. At the time the grievor was identified, approximately one-quarter of the members of the support staff bargaining unit at the College were also affected. In the case of the grievor, the committee could not agree on a placement, and separate recommendations were made to the president: the management members of the committee recommended that he be assigned to a position of clerk general (atypical) in Learning Resources, while the union -3- members felt that further discussions were needed. The president decided to accept and imple- ment the recommendation of the management side. The union in this grievance takes no exception to the procedures followed by the College. It maintains, however, that the College erred in not assigning the grievor to the gallery director/model co-ordinator job as he could satisfactorily perform its requirements. We note that Article 15.4.7 of the collective agreement states that the College is not required to train employees like the grievor for jobs to which they aspire, but is required to provide "a reasonable period of familiarization where necessary". We also note that Mr. Simpson, the incumbent, was present at the hearing, that he gave evidence about his duties, that he asked a number of questions of the grievor during the latter's testimony, and that he made submissions to us. II We were provided with a Position Description Form ("PDF"), prepared in September 1994, for the gallery director/model co-ordinator position, and this was explained and supplemented by the testimony of Mr. Simpson. The PDF reads, in part, as follows: A. POSITION SUMMARY: Under the direction of the Chair, Arts Development, the Gallery Director/Model Co-Ordinator position demands full managerial skills to: -4- 1) develop and direct all Gallery functions including public relations, sched- uling of space, and design and installation of student and faculty shows. Schedules and co-ordinates technical and support personnel. 2) hire and place models for a variety of full-time and part-time programs in the Faculty of Arts. Through liaison with faculty the incumbent assesses and evaluates their instructional needs and finds appropriate solutions for each model requirement. 3) analyze, assess, develop and co-ordinate artistic and logistical activities for various high-profile public relations and recruitment events. Schedules and co- ordinates technical support personnel. The position also undertakes occasional special projects as assigned by the Dean. B. DUTIES AND RESPONSIBILITIES Gallery Director... In keeping with the educational mandate of the Gallery and artwork display areas, the incumbent conceptualizes, schedules and directs all program, College-wide, and external exhibitions for the Gallery, College main entrance, President's Office lobby, SOCAD entrance and A-wing east hallway. Supervises the hanging and installation of displays of student and faculty artwork. Solely responsible for organization and installation of the Faculty of The Arts faculty and staff exhibi- tions in the Gallery. Ensures the safe installation and appropriate security of art objects on display (values can exceed $6-7K). Provides a safe environment for models and Gallery patrons. Recommends and implements policies and operational procedures for Gallery activities as related to internal College functions, public service community activities, and/or Arts promotional events. Model Co-Ordinator... Responsible for set-up of four (4)studios All0, 112, 107, 108, including recom- mendations for renovations and facility improvements. Ensures that studio equipment, i.e. heaters, spot lights, extension cords are in excellent working condition. Weekly inspection of studio furniture for damage and initiates repairs to maintain quality teaching environment. -5- Special Events... Provides artistic direction for annual events such as: Faculty of The Arts Open House, Sheridan Employee Long-Service Awards, Annual Faculty and Staff Exhibit, Arts booth at College Day, etc. Schedules and co-ordinates preparation, installation and take-down activities in accordance with the event's mandate. Achieves efficient production methods in relation to the resources available. Determines personnel requirements and supervises work crews. Ensures safety and security standards are met. Liaises with President's Office and other event stakeholders as required. C. SKILL 1. TRAINING/TECHNICAL SKILLS 4-year arts degree or equivalent. Active membership in related professional associations. 2. EXPERIENCE 2.1 5 years of practical experience in gallery management. 2 years supervisory and management experience. Familiarity with computers and/or willing to learn. 2.2 Due to the unusual nature of life modelling and sensitivity towards arts subjects, the supervision of models and the handling of artists' artwork requires a high degree of tact and sensitivity. The overall position requires above-average: - organizational skills - communication and interpersonal skills - creative, artistic and design appreciation skills - administrative and supervisory ability -6- - ability to work with little supervision - flexibility - responsible and decisive aptitudes - awareness of the College's desired image - commitment to professional development 4. JUDGEMENT Independent judgement and problem-solving are integral to all aspects of this position. Capacity to initiate new ideas and strategies, and modify established procedures, with a minimum of direction and supervision are necessary. Because the incumbent is responsible for the tasteful display of various works of art, understanding the creative process and aesthetics is a high requirement of this position. The incumbent often acts as spokesperson for the College and discusses the merits of Sheridan's Arts programs with potential students, the press and Gallery patrons. Mr. Simpson testified that he had personally developed the gallery at the College. He had a substantial academic and art-related background, particularly in classics, and has completed all but the dissertation for a doctorate. He has taught Art History at the College to Interior Design students. He expressed the view that artistic judgement was an essential element of his job, and this was reflected in the PDF. He saw an important part of his job as being to act as a bridge between the College and the arts community, stressing his participation in various bodies including "Art Sheridan". Without a strong background in the arts, he felt that the incum- bent could not perform the public relations aspects of the job. He was also called on to "jury" works of art and decide which pieces should be included in exhibitions. He acknowledged that -7- there were some "technical" components of his job, such as physically hanging works in an exhi- bition, but even these could not be performed without aesthetic appreciation and involvement in the current arts scene. He estimated that the set-up of the four studios for which he was responsi- ble took about 10% of his time The gallery itself was modest in size, but it extended, in the form of showcases, throughout the College's hallways and entrances and even into the president's office. Sometimes he had to prepare explanatory descriptions of works being exhibited, which required him to conduct research. III The grievor has been working at the College since 1979. He had most recently held the position of audio-visual resource technician. Previously, he had run the projection room, and had worked in the college bookstore (in charge of the photography section). He had completed high school, and had studied for one year at a teachers' college. He had also taken one year of an Industrial Arts program. He had obtained a certificate in the fundamentals of photog- raphy at the College, and had taken several other courses at the College. Before joining the College, he had worked as an occasional teacher at the elementary school level. The grievor testified that, in his job as audio-visual resource technician, he essen- tially ran the audio-visual centre at his campus. He regularly interacted with students, faculty and staff, particularly in assisting them to produce imaginative audio-visual presentations. He instructed them in the effective use of colour overheads, for example. He had also taught credit courses at the College in audio-visual techniques for Media and Advertising students. -8- He further testified that his wife is a professional artist who works in a variety of media and frequently exhibits her work. He had assisted her in setting up her work at about ten exhibitions. He had done everything from physically hanging the works to deciding on the best aesthetic lay-out. Another of his interests was Slovakian folk-dancing, which he had taught. This, too, demonstrated his interest and participation in cultural activities, and had given him experi- ence in talking to groups. He reviewed, in his testimony, the requirements of the gallery director/model co- ordinator position, and asserted that he could handle all aspects of the job satisfactorily. He felt that his background in the audio-visual centre, in photography, in assisting his wife with her exhibitions and in visiting galleries had equipped him to do everything required in the job, even though he lacked the formal educational requirements. The grievor was questioned by Mr. Simpson on his background in art. He was aware, he stated, of the different schools of art, although he had never studied any art history. He was also familiar with various crafts, including ceramics, printmaking and woodworking, although these too he had never studied. When asked about his experience in evaluating the artistic merit of works of art, he stated that he could "tell a nice piece of art" and that "everyone has their own opinion of what art is". He had had no involvement with art organizations at the College. In response to counsel for the College, the grievor stated that he was responsible, as an audio-visual resource technician, for loaning and maintaining audio-visual equipment, such -9- as cassette players, VCR's and various types of projectors, as well as helping users make effec- tive use of such equipment. He often advised his wife on the composition of her work, looking at it from his background in photography. He had no current involvement in any committees at the College. He had no membership in any relevant professional associations. Other than through his wife, he had no connections with the artists' community. "Art", he stated, "was in the eye of the beholder", noting that judges often differed on the artistic merit of a piece of art. Although he lacked experience as a gallery director, he felt that he had acquired some good supervisory expe- rience in his job as an audio-visual resource technician, where he supervised the work of several students and of one employee. IV Ms. Boylan, on behalf of the union, argued that the evidence we received demon- strated that the grievor, after a short familiarization period, would be able to perform the duties of the position satisfactorily. He had a broad variety of skills and experience, some acquired as an audio-visual technician, some acquired as a photographer, and some acquired in helping his wife, which equipped him to handle the job. While he lacked the formal education and experi- ence described on the PDF, he had equivalent education and experience. It was important for us not to attempt to compare the grievor's qualifications with those of Mr. Simpson, since the grievor merely had to show that he could satisfactorily perform the work, not that he could do it better than the incumbent. There was some overlap between the grievor's old job and the job he seeks, particularly as regards the maintenance of equipment. The union further argued that we -10- should be a little skeptical of Mr. Simpson's description of the public relations aspects of the job since it was a job in payband 8, the same as the grievor's old job. Mr. Simpson argued that aesthetic judgement and sensitivity to the arts were key ingredients of the job. The public relations features of the job were an essential part of it and were important to the College. Mr. Culver, representing the College, maintained that, while the grievor was not in competition for the job with the incumbent, it was important to realize that job content often evolved so as to reflect the skills and talents of its incumbent. The grievor's skills and experience could best be described as "technical", and he could probably perform satisfactorily a small part of the job that consisted of technical tasks. But the essence of the job required appreciation of the arts and experience in the arts, which the grievor lacked. That this was the essential character of the job was confirmed by the statement in the PDF of the education and skills required of the incumbent. The job required a sophisticated and professional level of art appreciation, which the grievor lacked. The onus was squarely on the union to demonstrate the grievor's ability to perform the work, and it could not be discharged by the grievor's assertions that he believed he could handle the job. It was noteworthy that even the union representatives on the committee trying to place the grievor had not considered that he was a good match for Mr. Simpson's job. The decision of the College president to assign the grievor to his current j ob should not be lightly interfered with. Mr. Simpson's background in the field of art had not been acquired overnight, and it would be wrong to conclude that a brief familiarization period would suffice to enable the grievor to perform the work. According to Mr. Culver, it would be demeaning to the job to -11- assign to it a person whose skills were strictly technical and who lacked art appreciation skills. In the course of his submissions, Mr. Culver referred to Re Manitoba Housing Authority and Inter- national Union of Operating Engineers, Local 827 (1995), 47 L.A.C. (4th) 1 (Hamilton), R~e Metropolitan Toronto Separate School Board and Canadian Union of Public Employees, Local 1280 (1990), 11 L.A.C. (4th) 252 (Marszewski), Re Lennox Industries (Canada) Ltd. and United Steelworkers, Local 7235 (1983), 12 L.A.C. (3d) 241 (Kennedy), and Re Computing Devices Canada Ltd. and Employees' Association, Computing Devices Canada (1994), 41 L.A.C. (4th) 47 (Emrich). V Although the question was touched on in argument, it is not necessary for us to express any views on the scope of our review of the College's decision in this case. We are satis- fied that the result of this case would be the same whether the College's decision has to meet the test of correctness or whether it is entitled to some deference from us. As the parties were agreed, the union bears the onus in this case of satisfying us that the grievor is able to perform the duties of the position satisfactorily. It is important to note that this is not a competition between Mr. Simpson and the grievor. It is also important to note that the College bears no onus of persuading us that the grievor would be unable to perform the job. We make this last observation because the possibility can rarely be excluded that an employee placed in a new assignment will blossom and reveal talents that he or she had never previously had the opportunity to develop. The union must persuade us, by proof of the grievor's -12- relevant knowledge, skills and experience, that, following a familiarization period, he would be able to perform the work satisfactorily, not merely that he might develop new talents if placed in the j ob and thereby be able to satisfy the requirements of the position. We are satisfied that the union has failed to discharge this onus. We do not doubt that the grievor has certain skills and knowledge that would enable him to handle some of the minor aspects of the job. However, we have little hesitation in endorsing the main thrust of the submissions of Mr. Simpson and of Mr. Culver that a strong background in the arts, particularly in art appreciation and aesthetic judgement, is essential to enable the incumbent of the position to discharge its major elements satisfactorily. This is amply reflected in the PDF. On a review of the grievor's education and experience, it would be a leap of faith for us to conclude that the relevant knowledge and skills he had acquired have equipped him to perform this job satisfactorily. The grievor, in addition to lacking the formal background required, demonstrated in his testimony a rather na'~ve approach to art appreciation that, in our view, would be inadequate for the incumbent of this position. The fact that the grievor has helped his artist wife hang works of art in a number of exhibitions and has visited various art galleries does not persuade us that he has the depth and breadth of exposure to the arts that are required in this job. -13- The grievance is therefore dismissed. DATED at Thornhill, Ontario, this 2nd day of March 1998. Michael Bendel, Chair I concur/I dissent Jacqueline G. Campbell, College Nominee I concur/I dissent Edward Seymour, Union Nominee