HomeMy WebLinkAboutStethem 01-10-16IN THE MATTER OF AN ARBITRATION
BETWEEN: LOYALIST COLLEGE
AND ONTARIO PUBLIC SERVICE EMPLOYEES
UNION, LOCAL 421
AND IN THE MATTER OF THE GRIEVANCE OF J. STETHEM
GRIEVANCE #00A005
BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR
ROBERT J. GALLIVAN, COLLEGE NOMINEE
EDWARD SEYMOUR, UNION NOMINEE
APPEARANCES:
FOR THE COLLEGE: MICHAEL J. KENNEDY
FOR THE UNION: GAVIN LEEB
AWARD
The Grievor, Jim Stethem, claims that he was improperly denied
the position of General Maintenance Worker, Pay Band 7, which was posted on
September 27, 1999. There were two applicants for the posted position, the
Grievor and Chris Goyer. Both applicants were deemed unqualified for the
position. Accordingly, an individual by the name of Eric Pierson whom the
College considered qualified was hired from outside the bargaining unit.
Although Mr. Pierson was given notice of these proceedings, he chose not to
attend.
The relevant facts are as follows: In January, 1986, the Grievor
was hired as a full-time Cleaner, Pay Band 2, on the night shift. His job entailed
dusting, sweeping, picking up garbage, and other general cleaning duties. Some
five years later, he attained a position as a Caretaker B, Pay Band 4 on the day
shift. His principal duties in that position, which involved less cleaning than his
former caretaking position, included assisting general maintenance workers and
tradespeople in the performance of their duties. Furthermore, the Grievor
testified that from 1993 on, the majority of his time was spent assisting the
tradespeople in the Facilities Services Department (namely, Mac Lawrence,
Roger Keenan and, especially, Wayne Haskin, the Electrician, Plumber and
General Maintenance Worker, respectively) in such tasks as rerouting and pulling
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wires; replacing fluorescent light bulbs and tubes; cleaning drains; changing
filters; and cleaning boiler and chiller tubes.
Although other Caretakers assisted the tradespeople as well, the
Grievor was generally assigned to assist Mr. Haskin. In this regard, the Grievor
testified that he assisted Mr. Haskin on tasks that required two people to perform
and was instructed by Mr. Haskin in tasks that required only one person to
perform. With respect to specific tasks, the Grievor testified that, apart from
maintaining inventory records, he performed all of the duties and responsibilities
set out on the General Maintenance Worker Position Description Form ("PDF").
Specifically, the Grievor testified in examination-in-chief that he was responsible
for the inspection, maintenance and servicing of all HVAC fans and related
equipment, including drive belts. In cross-examination, however, he
acknowledged that, although he did the maintenance and servicing of belts, Mr.
Haskin conducted the inspections and explained what he was doing to the
Grievor. As well, although the Grievor claimed in examination-in-chief that he
tested and maintained the boiler and chiller water systems, including the handling
and proper use of hazardous chemicals, in cross-examination, he allowed that,
apart from maintenance functions, only one person was required to perform
these tasks, which were carried out by Mr. Haskin. Similarly, although the
Grievor testified initially that he was responsible for the maintenance and repair
of all fire hoses, fire extinguishers and door alarms, he acknowledged in cross-
examination that he was one of a number of employees who had, on occasion,
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checked hoses and fire extinguishers. For the most part, however, Mr. Haskin
was responsible for the performance of these tasks, which he then demonstrated
for the Griever. Further, although the Griever claimed that he performed minor
repairs on plumbing and electrical equipment, he testified in cross-examination
that either he or Mr. Haskin would assist the plumber or electrician, as the case
might be, in the performance of these tasks. As well, the Griever testified that he
inspected and cleaned or replaced filters in the College HVAC air supply and
water circulating systems; performed minor repairs on pumps and fans for
heating and cooling systems; undertook the repair and cleaning of boilers,
chillers and related heating and chilled water equipment; undertook building
maintenance tasks, such as drywall repairs, relocation of partitions and the
recombination/assembly of door and cabinet locks; repaired, refinished and
moved furniture; and monitored and adjusted the controls for the heating and
cooling systems. Finally, in contrast to his assertion in examination-in-chief that
he performed all of the functions set out in the PDF, the Griever testified in re-
examination that, although he primarily performed maintenance functions, apart
from maintaining inventory records, he "touched on" all of the duties set out in the
PDF.
Apart from assisting tradespeople and Mr. Haskin, in particular, the
balance of the Griever's time was spent repairing and rearranging furniture; doing
special setups; installing equipment; removing snow; sanding and salting outdoor
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surfaces; collecting and removing refuse; and cleaning equipment, boiler room
and other areas, as required.
As a result of pay equity, the Grievor's position was reclassified to
Pay Band 5. In 1996, the Griever was redcircled as a Caretaker B, Pay Band 5.
Two years later, in November, 1998, he was displaced from his Caretaker
position. As a result, he reverted to the position of Cleaner, Pay Band 2, on the
night shift.
Some time in 1995, the Grievor's immediate Supervisor, Garry
Morgan, and the former Director of Facilities Services, Barry Deans, approached
the Griever and three other employees about enrolling in the Building
Maintenance Mechanic Apprenticeship programme. The Griever testified that he
was receptive to the idea, as he was interested in the Building Maintenance
Mechanic trade. As well, he had spent a considerable amount of time assisting
the General Maintenance Worker, Mr. Haskin, and was hopeful that an
apprenticeship would lead to a job on the day shift in a higher pay band.
The evidence indicates that there are some 200 skilled trades in
Ontario. All of these trades have training standards (or apprenticeships),
comprised of on-the-job training and classroom instruction (or in-school training).
Upon completion of the training standards, employees receive a certificate of
apprenticeship. According to John O'Reurke, an official with the Ministry of
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Training, Colleges and Universities, the purpose of such certificate is to provide
training to workers within each trade and create a recognizable standard for both
industry and the public to measure a worker's ability to perform a particular job.
Of the 200 or so skilled trades, 19 are referred to as compulsory; the rest, as
voluntary. Upon completion of the apprenticeship requirements, a worker in a
compulsory trade may also obtain a certificate of qualification. The evidence
indicates that the usual process for obtaining a certificate of qualification is for the
apprentice to write an examination. Finally, the evidence indicates that Building
Maintenance Mechanic (or Facilities Maintenance Mechanic, which is the
updated version of Building Maintenance Mechanic) is a voluntary, rather than a
compulsory, trade. Accordingly, a certificate of qualification is not applicable to
the Building Maintenance Mechanic trade.
According to Mr. O'Rourke, when an employer enters into a training
agreement for either a voluntary or compulsory trade, the Ministry uses the
applicable regulations to determine the length of the apprenticeship programme.
Although the employer may wish to recognize prior work experience, it is under
no obligation to do so.
On September 1, 1995, the College entered into a contract of
apprenticeship (also known as a training agreement) with the Grievor. Pursuant
to the applicable regulations, that agreement provided for 4000 to 6000 hours of
on-the-job training, with no credit being given for prior work experience. Further,
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in accordance with the Apprenticeship Curriculum Standards for Building
Maintenance Mechanic, an in-school training curriculum of 480 hours at an
approved educational institution was prescribed. In this case, the educational
institution (or training agency) contracted to provide the in-school training portion
for the Building Maintenance Mechanic apprenticeship was Loyalist College.
According to Mr. O'Rourke, the in-school training portion for
Building Maintenance Mechanic consists of a two-year programme, divided into
two levels (or phases) and comprised of 26 courses devoted to practical and
theoretical aspects of a number of substantive areas (such as carpentry,
plumbing, welding, etc.), as well as health and safety issues, printreading,
communications and trade calculations. Notwithstanding the terms of the
agreement (4000 to 6000 hours with no credit for prior experience), the Griever
testified that he understood from an explanation provided by Mr. O'Reurke at a
meeting attended by Mr. Deans, Mr. Morgan and three other employees of the
College who were enrolled in the apprenticeship programme, that he would be
given credit for prior experience and, therefore, if he completed the in-school
portion of the programme, he would have satisfied all of the requirements of his
apprenticeship. Although the evidence in this regard was not entirely clear, the
Griever testified that his understanding in this regard was reinforced by the
course instructor, Grant Rundle.
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Apart from being the training agency, Loyalist College was also the
employer for the Grievor's apprenticeship. As the employer, the College was
responsible for supervising the apprentice's on-the-job training and providing
work appropriate to the apprenticeship. In order to ensure that the work provided
was appropriate, both the employer and the apprentice were given copies of the
training standard for the particular trade. Although the evidence indicates that
the Ministry does not monitor individual apprenticeship contracts, either party
may contact the Ministry if the work provided is not appropriate to the
apprenticeship.
Further, although the Ministry encourages apprentices to keep track
of their hours, Mr. O'Rourke testified that it is ultimately the employer's
responsibility to record on-the-job training hours and notify the Ministry upon
completion of on-the-job training portion of an employee's apprenticeship
programme. Upon notification of completion of the programme, the Ministry
issues a certificate of apprenticeship. In the event of a dispute between the
employer and the apprentice as to whether on-the-job training hours have been
completed, Mr. O'Rourke indicated that he would convene a meeting with the
parties to the apprenticeship contract to discuss the matter and determine
whether the apprentice was able to offer proof that the hours had been
completed. Although it was Mr. O'Rourke's understanding that he was
authorized under the applicable legislation to examine the employer's records
and issue a certificate of apprenticeship if he determined that the hours had been
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completed, he testified that he has never had to resort to these measures to
resolve a dispute over apprenticeship hours.
In this case, although the Ministry received notification that the
Grievor had completed both levels of the in-school training portion of the Building
Maintenance Mechanic apprenticeship programme, it did not receive notification
that his on-the-job training hours had been completed. As the Grievor
understood that, by taking the Building Maintenance Mechanic course and
working with Mr. Haskin, he satisfied all of the requirements of his
apprenticeship, he did not keep track of his on-the-job training hours, although he
apparently became concerned when he found out that other students in the
Building Maintenance Mechanic programme had been certified by their
employers as having completed their apprenticeship hours. Accordingly, some
time in the summer of 2000, the Grievor attempted to confirm with Mr. Morgan
that his hours had been recorded. He also contacted Mr. O'Rourke to inquire as
to why he had not received his certificate of apprenticeship. Mr. O'Rourke
testified that he informed the Grievor that the College had not sent a letter
certifying that his apprenticeship hours had been completed.
Although Mr. Morgan, who has since retired, was not called as a
witness in these proceedings, the current Director of Facilities Services, Kirk
Fleming, testified that the matter of the Grievor's apprenticeship came to his
attention in the summer of 2000, when he received a telephone call from Mr.
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O'Rourke indicating that, although the Grievor and one other employee (Bill
Simpson) had completed the in-school training portion of the Building
Maintenance Mechanic apprenticeship, the on-the-job training portion was still
outstanding. Mr. Fleming testified that this was the first notification he had had of
the Griever's apprenticeship. He, therefore, asked Mr. O'Reurke for a copy of the
apprenticeship contract, which was not provided. Although Mr. Fleming did not
follow up on the telephone call from Mr. O'Reurke, in December, 2000, he
located a copy of the Griever's apprenticeship contract in a filing cabinet in the
maintenance office. Subsequently, Mr. Fleming had a brief discussion with the
Vice-President of Staff and Student Services, Dave Butler, and with Mr. Deans,
the signatory of the contract on behalf of the College, who had only a "faint
recollection" of the circumstances surrounding the execution of the contract.
Apart from these discussions, Mr. Fleming took no steps to confirm how many
hours the Griever (or Mr. Simpson, for that matter) had worked toward
completion of his apprenticeship. Accordingly, as he was uncertain as to the
hours or the tasks that were completed in furtherance of the Griever's
apprenticeship, Mr. Fleming was unable to provide confirmation to Mr. O'Reurke
of completion of the Griever's apprenticeship hours. Finally, the evidence
indicates that, as of the date of the hearings, none of the employees of the
College who entered into contracts of apprenticeship at the same time as the
Griever had been certified as having completed his apprenticeship.
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On September 27, 1999, the College posted a vacancy for the
position of General Maintenance Worker, Pay Band 7, in Facilities Services, on
the day shift. This position became vacant when the incumbent, Mr. Haskin,
successfully bid into the position of Co-ordinator, Facilities Services. The job
posting reads as follows:
LOYALIST COLLEGE
requires a
General Maintenance Worker
for
Facilities Services
Responsibilities:
Under the direction of the Facilities Services Co-ordinator, the General
Maintenance Worker will perform skilled and semi-skilled tasks for the
installation, maintenance repair and general upkeep of the college
buildings, equipment and facilities.
Qualifications:
Graduate of a two year CAAT Technology program or Skilled Trades
certificate of qualification for Industrial Mechanic Millwright Up to 3 years practical experience in a similar position
The ability to interpret machine and equipment operating manuals
The skills to use and operate power tools
Salary Range: $14.99 - $16.60 Pay Band 7 (40 hours/week)
Hours: 7:30am to 4:30pm Monday to Friday
Start Date: Immediately
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Tues. 19
Please apply in writing by close of business F-~, October -1-, 1999 to:
Human Resources Department
Loyalist College
Box 4200
Belleville, Ontario
K8N 5B9
LOYALIST COLLEGE IS AN EQUAL OPPORTUNITY EMPLOYER
On September 30th, the Grievor applied for the posted position.
The Griever testified that he applied for the position because it was a day shift
job at a higher pay band than the Cleaner position into which he had been
displaced. As well, the position was essentially in the same field in which the
Griever had obtained his certificate. Moreover, the Griever understood that he
satisfied the qualifications for the posted position, including the ability to interpret
machine and equipment operating manuals, the skills to use and operate power
tools, and up to three years' practical experience in a similar position.
Furthermore, although the Griever did not have a certificate of qualification as an
Industrial Mechanic Millwright (which involves an examination and applies only to
a compulsory trade), he claimed that he qualified as a graduate of a two-year
CAAT Technology programme, as he understood that he satisfied all of the
requirements of the Building Maintenance Mechanic apprenticeship (including
the certificate course and 4000 on-the-job training hours). Although the Griever
made reference to having completed the Building Maintenance Mechanic course
in his job application for the posted position, he made no reference to having
completed the Building Maintenance Mechanic apprenticeship. He also failed to
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mention the apprenticeship when contacted by the College on or about October
5th to confirm his qualifications for the posted position. Finally, the Grievor took
the position that he satisfied the qualifications, as he had performed the job in
question.
However, the College determined that the Grievor did not satisfy
the qualifications for the posted position. In this regard, Mr. Fleming testified that
it was his decision, following consultation with the Director of Human Resources,
Liz McGregor, and the Vice-President of Finance and Corporate Services, John
Rigsby, to amend the qualifications for the position. With respect to the
educational qualifications, in particular, Mr. Fleming testified that he was looking
for an individual who had completed a two-year post-secondary technology
programme (including courses in engineering principles, engineering
mathematics, computer-aided drafting and hydraulics) or, alternatively, who had
obtained a certificate of qualification as an Industrial Mechanic Millwright, in order
to "recapture" some of the skills that were lost due to the departure of various
skilled tradespersons from the College since 1998. In this regard, Mr. Fleming
testified that between April and September, 1998, three employees retired or
otherwise left the Department, resulting in the loss of a plumber (Garry Morgan),
an electrician (Mac Lawrence) and a professional engineer (Barry Deans).
Although Mr. Deans was succeeded by Mr. Fleming, Mr. Fleming is not a
professional engineer (although he is an electrician). It would appear, however,
that, from time to time, Mr. Deans provides engineering services to the
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Department on a contract basis, although Mr. Fleming testified that Mr. Deans's
availability is somewhat restricted. The evidence further indicates that Mr.
Morgan's position was not filled following his retirement and that Mr. Lawrence's
position was converted to a Caretaker B position, which is not a skilled trade.
Although Mr. Fleming testified in examination-in-chief that these positions were
not replaced because of budgetary constraints, he acknowledged in cross-
examination that, due to the effects of contracting out of other functions, the need
for the services of an electrician, in particular, was somewhat reduced.
Mr. Fleming testified in examination-in-chief that the loss of these
positions resulted in a loss of experience and knowledge of the various systems,
building components and equipment within the College, as well as analytical and
problem-solving skills, which are required to make decisions regarding the repair
and replacement of parts and equipment. In cross-examination, however, Mr.
Fleming acknowledged that the General Maintenance Worker's authority is
restricted to making recommendations, rather than decisions, respecting the
repair and replacement of parts and equipment and may, on occasion, extend to
providing alternatives for corrections that need to be done. Finally, according to
the PDF, tasks which entail the expenditure of funds for parts and materials are
routinely referred to the Supervisor for resolution. In any event, Mr. Fleming
testified that the qualifications set out in the posting were the minimum skills
required to recapture those that were lost due to the departure of Messrs.
Morgan, Deans and Lawrence and that, unless these skills were recaptured,
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there would be limited ability within the Department to perform the analytical
tasks required for the repair and maintenance of building equipment and
components.
In this regard, Mr. Fleming testified that as a result of an inventory
of aging residences and academic buildings, extensive preventative maintenance
and system upgrades have been undertaken or are scheduled to be undertaken
in the near future, which will require the application of greater analytical skills
than were needed in past. With respect to the introduction of new systems, Mr.
Fleming testified that in the summer of 2000, the original heating system in the
main building was replaced with an electronic system. Similarly, the installation
of the new air conditioning system, which entails removal of the existing chiller
and installation of a new chiller and related equipment, was scheduled to take
place in the spring of 2001. As well, there are ongoing changes to the building
automation system, which provides environmental control for the buildings and
operates the heating, ventilation and air conditioning systems, involving
upgrading and replacement, as well as recalibration, of pneumatic and electronic
components. Mr. Fleming acknowledged that the General Maintenance Worker
is one of several skilled tradespersons assigned to work on these systems.
Finally, it is anticipated that all of the skilled tradespersons (including the
Electrician and General Maintenance Worker), as well as the Co-ordinator and
Mr. Fleming, if available, will be trained on the new systems by the supplier. In
addition, plans are underway for a facilities audit of the various building
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components and facilities-related building equipment, which would enable the
College to assess the financial impact of repairs and replacement of building
components and related equipment. This audit, which is part of a province-wide
initiative, involves inputting information as to the condition, expected life and
replacement cost of current components and equipment into an electronic
database. Mr. Fleming testified that the qualifications set out in the General
Maintenance Worker job posting are required to ensure the level of analytical skill
necessary for the performance of these tasks.
With respect to the requirement for a graduate of a two-year CAAT
technology programme, Wayne Boicey, the former Co-ordinator for the Building
Maintenance Mechanic certificate programme, explained that a graduate of a
two-year technology programme receives a diploma and that the requirements
for a diploma programme are more onerous than for a certificate course. For
example, a diploma requires completion of a minimum of 1350 hours of
classroom instruction, as opposed to 480 hours for a certificate. As well, Mr.
Boicey suggested that a diploma programme is more analytical, or theoretical, in
nature than a certificate course (the content of a certificate course being
approximately 30% theoretical and 70% practical, in comparison to about 60%
theoretical and 40% practical, for a diploma programme). In this regard, Mr.
Fleming added that the content of a diploma programme is approved by the
Ministry, whereas the content of a certificate course is approved by other
sources.
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Mr. Fleming acknowledged that the requirement for a two-year
CAAT technology diploma is common to the General Maintenance Worker
position and to the higher-rated Co-ordinator, Facilities Services position, which
Mr. Haskin attained through job competition. However, there are different
alternative qualifications, being a certificate of qualification for Industrial
Mechanic Millwright for the General Maintenance Worker position, but only
skilled trades certification for the Co-ordinator position. Mr. Fleming also
acknowledged that, although he had completed a Building Maintenance
Mechanic apprenticeship, the previous incumbent of the General Maintenance
Worker position, Mr. Haskin, would not have satisfied the requirements for the
job posting. In any event, during Mr. Haskin's tenure in the position, there were
others available, namely, Messrs. Morgan, Lawrence and Deans, to provide
troubleshooting and analytical planning skills, which the College deemed
necessary for the effective operation of the Department. Moreover, although Mr.
Haskin would not have satisfied the amended qualifications for the General
Maintenance Worker position (having neither a two-year technology diploma nor
a certificate of qualification for Industrial Mechanic Millwright), he satisfied the
requirements for the Co-ordinator position, as he had obtained a skilled trades
certificate of apprenticeship as a Building Maintenance Mechanic. In addition,
Mr. Fleming explained that the focus of the two positions is different and that,
apart from technical knowledge of building systems, materials and related codes,
the Co-ordinator is required to have strong interpersonal, communication and
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leadership skills in order to oversee all aspects of the day-to-day operations of
the Department. However, as the Co-ordinator relies on the skilled trades
(including General Maintenance Worker) to ensure that all systems are
functioning properly, he is not expected to have the same level of technical
proficiency as the General Maintenance Worker (or other skilled tradesperson).
Although the Union disputed that analytical skills are required for
the General Maintenance Worker position, Mr. Fleming maintained that there is
an analytical component to the position, which is recognized in the PDF, by the
reference, under "Complexity", to "analysis", and, under "Judgement", to the
requirement for "Moderate judgement and problem solving" (4.1) and to the
ability to recognize abnormalities in daily inspections (4.2), which the Union
disputed. Furthermore, although the Union pointed out that the PDF makes no
reference to troubleshooting, Mr. Fleming suggested that troubleshooting is
encompassed in the term "analysis".
Further, with respect to the PDF, Mr. Butler testified that the CAAT
Job Evaluation Manual requires that there be a PDF, which is intended to reflect
the duties and responsibilities for every support staff position within the College.
The duties and responsibilities set out in the PDF are then compared to the
classification levels described in the Job Evaluation Guide Charts. However, the
fact that there is a guide chart for a classification level (in this case, General
Maintenance Worker) does not preclude the College from establishing different
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qualifications for a particular position from those set out in the guide chart. In this
case, the training/technical skills factor in the guide chart for General
Maintenance Worker (secondary school graduation) is assigned a point rating
equivalent to level 3, whereas the educational requirement of a two-year College
diploma is equivalent to level 5. Notwithstanding this two-level differential in the
training/technical skills factor, the pay band for the General Maintenance Worker
position remained unchanged.
Union Submissions
The Union advanced three general propositions: (1) where an
employer has unilaterally raised the qualifications for a job posting, the onus is on
the employer to justify the validity of the higher qualifications; (2) the
qualifications set by an employer must be relevant and related to the job actually
being performed; and (3) unless the collective agreement provides otherwise, an
employer is obliged to consider equivalent qualifications.
The Union submitted that although the College raised the
educational qualification for the General Maintenance Worker to a two-year
CAAT technology diploma, it has been unable to substantiate the requirement for
the higher-level qualification, as there has been virtually no change in the nature
of the duties and responsibilities from those set out in the PDF which was in
effect prior to the job posting. The Union further submitted that the inference to
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be drawn from the General Maintenance Worker guide chart, which requires only
a secondary school graduation diploma, is that a two-year CAAT technology
diploma is not a legitimate job qualification, and, therefore, the onus is on the
College to establish that there is a unique quality to the General Maintenance
Worker position at this College, which justifies imposition of the higher-level
requirement. Finally, the Union submitted that the alleged rationale for imposition
of the higher-level qualification, namely, to replace analytical and other skills that
were lost due to the departure of various skilled tradespersons, has not been
substantiated, as (1) there is no reference in the PDF to these skills; and (2)
there was no evidence that the duties associated with these skills were, in fact,
performed by the General Maintenance Worker.
The Union further submitted that an employer cannot ascribe
qualifications higher than necessary in order to accommodate future job
requirements. Although the Union acknowledged that qualifications may be
imposed for anticipated work if the performance of this work is imminent, it was
submitted that there was no indication that the work which was relied on to justify
the higher-level qualification was imminent. In any event, the evidence indicates
that when these systems are installed, training will be provided by the supplier.
It was further submitted that the rationale provided for increasing
the skill level of the General Maintenance Worker position, namely, to recapture
skills that were lost, is improbable, as the College failed to raise the skill level of
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the Co-ordinator position, which was posted some five or six months earlier.
Moreover, the explanation that it was unnecessary for the previous incumbent to
possess the higher-level qualification, as there were others in the Department
with the required skills, demonstrates that the requirement for the higher-level
qualification did not derive from a change in the nature of the job, but rather from
a desire to upgrade the Department, which is not a legitimate basis under the
collective agreement for imposing the higher-level qualification. It is also not an
appropriate basis upon which to deny an otherwise competent employee an
opportunity for a promotion.
In the alternative, the Union submitted that the Grievor possesses
equivalent qualifications to a two-year CAAT technology diploma. In this regard,
the Union submitted that the Building Maintenance Mechanic programme
provides training in all areas of the PDF, except for vehicle servicing, which is no
longer performed by the incumbent. The Union further submitted that, by
entering into a contract of apprenticeship, the College represented that it would
provide the Griever with appropriate work, and indeed the work which the Griever
performed assisting Mr. Haskin, from September, 1995, when he enrolled in the
apprenticeship programme, until November, 1998, when he was displaced from
his Caretaker position, would have satisfied most, if not all, of his on-the-job
training hours. Moreover, it was submitted that, had the hours prior to
September, 1995 been taken into account, the Griever clearly would have
satisfied the requirements for the certificate of apprenticeship. In this regard, the
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Union submitted that the Grievor should not be penalised for the College's failure
to fulfil its legal obligation to record the Grievor's apprenticeship hours, but rather
should be considered as having completed his Building Maintenance Mechanic
apprenticeship.
The Union further submitted that the Grievor's qualifications must
be considered as satisfying the requirements of the job posting, as they are
equivalent to those held by the previous incumbent. More particularly, the Union
submitted that Mr. Haskin did not have a certificate of apprenticeship when he
was appointed to the General Maintenance Worker position and that Mr. Haskin
learned on the job, as did the Grievor who assisted him. In the result, the Union
submitted that, as he had performed, and was capable of performing,
substantially all of the duties described in the PDF, the Grievor satisfied the
requirements for the General Maintenance Worker position and ought to have
been granted an interview. Accordingly, it was submitted that the grievance
should be upheld.
College Submissions
The College submitted that the Grievor was not qualified for the
posted position, as he had neither the qualification nor substantially equivalent
qualifications to that set out in the job posting (namely, a two-year CAAT
technology diploma or a certificate of qualification for Industrial Mechanic
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Millwright). In this regard, the College submitted that the Building Maintenance
Mechanic certificate is not equivalent to a two-year CAAT technology diploma,
the evidence being that the certificate course has one-third of the educational
component (480 hours as opposed to 1350 hours) and is focussed more than the
diploma programme on practical, rather than theoretical or analytical, matters. In
addition, the College submitted that a Building Maintenance Mechanic
apprenticeship (being comprised of the Building Maintenance Mechanic
certificate and 4000 on-the-job training hours) is not equivalent to a two-year
CAAT technology diploma. In this regard, the College reiterated that the in-
school training portion is not equivalent and submitted that the apprenticeship
hours are irrelevant, as they were not raised with the College at the time the
decision was made respecting the Grievor's qualifications. Specifically, the
matter was not referred to in the Grievor's job application. Moreover, the
evidence indicates that Mr. Fleming was not aware of the apprenticeship contract
(having not been involved in its execution) and that, when Mr. Fleming
approached the Grievor to confirm his qualifications, he made no reference to
having completed the on-the-job training portion of the Building Maintenance
Mechanic apprenticeship. As the decision to deny the Grievor an interview can
only be assessed on the basis of information provided at the time the decision
was made, it cannot be concluded that there was a violation of the collective
agreement in failing to take into account the Grievor's apprenticeship contract.
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It was further submitted that the College has a broad right to
establish the qualifications required for a particular position, provided the
qualifications are established in good faith and bear a reasonable relation to the
work to be done. It was submitted, as well, that deference ought to be given to
the exercise of the College's judgment in establishing qualifications. It was
further submitted that the College raised the educational qualification for the
General Maintenance Worker position in an attempt to recapture skills that were
lost due to staff departures and to accommodate technological changes and the
increased need for analytical skills in the job. Finally, the College maintained that
these duties are properly reflected in the PDF which was in effect at the time of
the posting. In the result, it was submitted that the College acted in good faith in
establishing the higher educational qualification and that this qualification is
reasonably related to the work to be done.
Furthermore, it was submitted that there is nothing in the CAAT
Evaluation Manual, which is a job evaluation tool, which restricts the College's
right to amend the qualifications for any particular job. As well, there is nothing in
the guide chart for General Maintenance Worker, which suggests that the higher-
level qualification for the particular position described in the job posting is
unreasonable. Finally, the College submitted that the inclusion of a similar
qualification (i.e., a two-year CAAT technology diploma) for the higher-rated Co-
ordinator position does not demonstrate that the educational qualification for the
24
General Maintenance Worker position is unreasonable, as the focus of the
higher-rated position is less technical than the posted position.
The College further submitted that although posted qualifications
may be disregarded where they are higher than the requirements of the job
would indicate, this is not such a case. Moreover, although it was acknowledged
that an employee may be exempted from an educational qualification, in
appropriate circumstances, such as where the employee has performed the job
in question, in this case, although the Griever assisted in many of the job
functions under Mr. Haskin's supervision, he has never performed the job without
supervision. Furthermore, although an exception has been recognized for
employees who can demonstrate their ability to perform the job in question, an
exception of this nature has application only where the collective agreement
provides for such a result, such as where the agreement provides for a
familiarisatien/trial period. However, the agreement in this case makes no such
provision. Finally, although an exception to the posted qualifications may be
made where an employee possesses equivalent qualifications, the College
submitted that there was no evidence that the Building Maintenance Mechanic
certificate, which the Griever obtained, is equivalent to a two-year CAAT
technology diploma.
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Union Reply
With respect to the argument that the Grievor's apprenticeship
hours are irrelevant, as they were not mentioned by the Grievor, the Union
submitted that the Grievor enrolled in the apprenticeship programme at the
behest of the College. Accordingly, it was reasonable for him to assume not only
that the College would keep track of his apprenticeship hours, but also that, when
he indicated that he had completed the Building Maintenance Mechanic
certificate, he was referring to his apprenticeship.
Decision
In this case, the Union claimed that the Grievor was improperly
denied an interview for the posted position in accordance with the requirements
of Article 17 of the collective agreement, which reads, in part:
17. JOB POSTINGS/PROMOTIONS
17.1 Notices
Notice shall be posted of a vacancy in a classification covered by the
Agreement for a period of five (5) days at each Campus and, at the
same time, shall be sent to other locations of the College. No outside
advertising for the position shall be conducted and no employee shall
be hired from outside the College until the position has been posted for
the said five (5) days. Such notice shall contain the classification,
payband, hourly rate range, current Campus location, current hours of
work, current shift(s), and an outline of the basic qualifications. Such
notice shall be posted in appropriate locations accessible to
employees. For the purposes of this Section, reference to days shall
26
exclude Saturdays, Sundays, and statutory holidays· Copies of all
posted vacancies shall be sent to the Local Union President at the time
of distribution for posting.
17.1.1 Consideration- Bargaining Unit Employees
VVhen a vacancy occurs and employees within the bargaining unit
at the College apply, the college shall determine the successful
candidate based on the qualifications, experience and seniority of
the applicants in relation to the requirements of the vacant position.
VVhere the qualifications and experience are relatively equal,
seniority shall govern, provided the applicant has the necessary
qualifications and experience to fulfil the requirements of the
position.
The College need not consider probationary employees.
17.1.1.1 Notification - Applicant
All applications will be acknowledged and all applicants who are
interviewed will be notified of the outcome of their application and
the name of the successful internal applicant, if any. The College
will not interview applicants from outside the bargaining unit until
it has complied with Articles 17.1 and 17.1.1 above. The College
will not consider applicants from outside the bargaining unit until
it has assessed internal applicants and notified them of the
results.
Apart from Article 17, the management rights clause bears
consideration:
3. MANAGEMENT RIGHTS
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function of the
Colleges [sic] to:
- maintain order discipline and efficiency;
27
- hire, discharge, transfer, classify, assign, appoint, promote,
demote, layoff, recall and suspend or otherwise discipline
employees subject to the right to lodge a grievance as provided
for in this Agreement;
- generally to manage the College and without restricting the
generality of the foregoing, the right to plan, direct and control
operations, facilities, programs, courses, systems and
procedures, direct its personnel, determine complement,
organization, methods and the number, location and
classification of personnel required from time to time, the
number and location of campuses and facilities, services to be
performed, the scheduling of assignments and work, the
extension, limitation, curtailment or cessation of operations and
all other rights and responsibilities not specifically modified
elsewhere in this Agreement.
Article 17.1 of the collective agreement provides that, when a
vacancy occurs and employees within the bargaining unit apply for the vacancy,
the College shall determine the successful applicant based on the "qualifications,
experience and seniority" of the applicants in relation to the requirements of the
vacant position. Where qualifications and experience are relatively equal,
seniority shall govern, provided the applicant has the necessary qualifications
and experience to fulfil the requirements of the position.
The issue in this case is whether the Grievor possessed the
qualifications to fulfill the requirements of the General Maintenance Worker
position. Although there was no dispute as to the College's right to establish
qualifications, provided these qualifications are established in good faith and bear
a reasonable relation to the work required to be done, it was submitted that in
28
this case the higher educational qualification and, in particular, the requirement
for a two-year CAAT technology diploma, is not reasonably related to the
requirements of the General Maintenance Worker position. Those requirements
are set out in the PDF.
In addition, Mr. Fleming testified as to the need to recapture skills
(described as analytical and problem-solving skills) which were lost due to
attrition, specifically, the departure of a professional engineer and two skilled
tradespersons, in the period from April to September, 1998, some 12 to 18
months prior to the job posting. In fact, it would appear that, due to the effects of
contracting out of other functions, as well as budgetary constraints, the need for
the services of an electrician, in particular, was somewhat reduced. As well, Mr.
Fleming is himself an electrician. Nevertheless, there was a net loss of plumbing
and engineering, as well as some electrical, skills. The evidence indicates that
these skills, as well as more generalised problem-solving and analytical skills,
were required to make decisions respecting the repair and replacement of parts
and equipment and to accommodate system upgrades that had been
undertaken, or are scheduled to be undertaken, in relation to an aging inventory
of residences and academic buildings throughout the College system.
Although the Union submitted that the College could not impose
qualifications on the basis of future requirements, the evidence indicates that
changes to the heating system have already been undertaken. As well, the
29
installation of a new air conditioning system was scheduled for the spring of
2001. Moreover, although there was no indication of the commencement date
for the facilities audit, the evidence indicates that there are ongoing changes to
the building automation system, involving upgrading and replacement, as well as
recalibration, of pneumatic and electronic components. Accordingly, this case
differs from ,Re Pubfic Utilities Commission of City of London and Canadian
Union of Pubfic Employees, Local 4 (1983), 12 L.A.C.(3d)378 (Palmer), in which
it was held that qualifications which were ascribed in anticipation that the job
might be changed in future were unreasonable. In this case, although the
General Maintenance Worker's authority respecting repair and replacement of
parts and equipment is somewhat restricted and although the General
Maintenance Worker is one of several skilled tradespersons assigned to work on
system upgrades, nevertheless, the evidence establishes that the General
Maintenance Worker has responsibilities in both of these areas.
Furthermore, although the reference in Section A, the Position
Summary, of the PDF to the performance of "skilled & semi-skilled tasks
associated with one or more of the skilled trades, for the installation,
maintenance, repair & general upkeep of the buildings, equipment & facilities"
would appear broad enough to encompass these duties, it must be concluded
that the PDF, as a whole, is not a good reflection of these duties.
Notwithstanding numerous references in Section B, Duties and Responsibilities,
to the boiler and chiller water systems and to repairs of various systems, there is
30
no express reference to the General Maintenance Worker's power to recommend
repairs and replacement of parts and equipment, and to participation in system
upgrades. Moreover, it seems clear that the term "analysis" in Section 3.1 is a
criterion to be measured in assessing the complexity of the position, rather than a
reflection of the level of analytical skill required in the position.
As to the matter of qualifications, there was no dispute as to the
College's right to establish the qualifications required to perform the duties of a
particular position, provided the qualifications were established in good faith and
bear a reasonable relation to the work required to be done. In this case, there
was no allegation of bad faith. It was alleged, however, that the requirement of a
two-year CAAT technology diploma is not reasonably related to the work to be
done. The evidence indicates, however, that the work requires the application of
analytical and problem-solving skills and that these skills, which were lost to the
Department through attrition, are taught in the two-year technology programme,
but not in the certificate course, or at least not to the same extent in the
certificate course, which tends to have a more practical orientation. Although the
Union suggested that these skills did not derive from changes in the nature of the
job, but rather from a desire to upgrade the Department, the evidence does not
support this conclusion. Indeed, the evidence establishes that there has been an
evolution in the General Maintenance Worker position due, in large measure, to
the effects of technological change (system upgrades, in particular). In this
respect, this case differs from Re Metropofitan General Hospital and O.N.A., Loc.
31
44 (1990), 17 L.A.C.(4th)57 (Roberts) where, in the context of a collective
agreement which did not expressly empower the employer to establish
qualifications, the employer was not permitted to rely on the imposition of a
higher educational qualification to deny an otherwise competent employee a
promotion. However, it should be noted that, in that case, the requirement for the
higher qualification did not derive from a change in the nature of the job, but
rather from a desire on the part of the employer to upgrade the department. In
this case, in contrast, there was no dispute as to the College's right to establish
qualifications and, although the higher educational qualification was intended to
recapture skills lost to the Department due to attrition, there were, in fact,
changes in the nature of the General Maintenance Worker position due to the
effects of technological change, which required the application of problem-solving
and analytical skills.
Nevertheless, the Union disputed the ostensible rationale for the
increased educational qualifications for the General Maintenance Worker
position, namely, to recapture skills that were lost and to accommodate
technological change and the increased need for analytical skills in the job, as
the College failed to raise the qualifications for the Co-ordinator position, which
was posted some five or six months earlier. However, the Co-ordinator position
has a different focus than General Maintenance Worker. Whereas the General
Maintenance Worker is a member of the maintenance staff, the Co-ordinator is
responsible for overseeing that staff, co-ordinating its day-to-day operations,
32
among other matters. Accordingly, although the Co-ordinator is required to have
knowledge of building systems, materials and related codes, he is not expected
to have the same level of technical proficiency as the General Maintenance
Worker. However, there are other requirements, such as strong interpersonal,
communication and leadership skills, which are not applicable to the General
Maintenance Worker position. The fact, therefore, that a similar educational
qualification, namely, a two-year CAAT technology diploma, was established for
the higher-level Co-ordinator position does not detract from the rationale for the
increased educational qualification for the General Maintenance Worker position
or demonstrate that this qualification is unreasonable for the lower-level, more
technical, position.
Nevertheless, the Union submitted that the presumption arises from
the guide chart for General Maintenance Worker, which requires only a
secondary school graduation diploma, that the requirement for a two-year CAAT
technology diploma is unreasonable. However, the guide chart is a standard of
comparison which is used in evaluating and classifying positions. While some
position descriptions set out duties and responsibilities which approximate those
which are set out in the guide charts, others do not. These latter positions are
referred to as "atypical". Moreover, the fact that there is a guide chart does not
restrict the College in the development of a position description. In this case, for
instance, the guide chart for General Maintenance Worker covers "positions that
perform semi-skilled work in tasks usually associated with one or more of the
33
skilled trades in the installation, maintenance, repair and general upkeep of
buildings, grounds, equipment and facilities". The position summary in the PDF
for General Maintenance Worker, on the other hand, refers to the performance of
"skilled & semi-skilled tasks associated with one or more of the skilled trades, for
the installation, maintenance, repair & general upkeep of the buildings,
equipment & facilities", which is broader than the reference to "semi-skilled work"
in the guide chart. As well, there is a difference in qualifications, the guide chart
referring to a secondary school graduation diploma and the position summary, to
a two-year CAAT technology diploma. However, the inclusion of a lower-level
educational qualification in the guide chart does not lead to the inference that the
higher educational qualification on the job posting is unreasonable. Moreover,
having regard to the increased need for analytical skills, as well as the analytical
content of the two-year CAAT technology diploma programme, in contrast to the
more practical orientation of the Building Maintenance Mechanic certificate
course, the Board is satisfied that the higher educational qualification is
reasonably related to the job required to be done. Furthermore, although the
evidence indicates that training will be provided by the supplier of new
equipment, a limited training course cannot be expected to replace the analytical
content of a two-year College programme leading to a diploma.
Although it was acknowledged that the Grievor did not satisfy the
higher educational qualification, the Union claimed that he possessed
substantially equivalent qualifications to a two-year CAAT technology diploma.
34
Although there was no dispute as to the Board's jurisdiction to consider
equivalent qualifications, it seems clear that the Building Maintenance Mechanic
certificate, which the Griever obtained, is not equivalent to a two-year CAAT
technology diploma, the evidence being that the requirements for a diploma
programme are more stringent than for a certificate course. In this regard, the
evidence indicates that a diploma programme requires some 1350 hours to
complete and is more theoretical than a certificate course, which requires 480
hours and has a more practical orientation. As well, although the Board finds it
unsettling that the Griever enrolled in the apprenticeship programme at the
behest of the College, which then failed to keep track of his apprenticeship hours,
even if the Griever could be considered to have completed his apprenticeship,
there was no evidence that a Building Maintenance Mechanic apprenticeship is
equivalent to a two-year CAAT technology diploma. Furthermore, as to the
suggestion that the Griever should be considered to have satisfied the
requirements of the job posting, as his educational qualifications were equivalent
to those of the previous incumbent, the evidence indicates that these
qualifications have been upgraded since the time Mr. Haskin occupied the job.
Accordingly, as Mr. Fleming indicated, Mr. Haskin would not have satisfied the
amended qualifications for the General Maintenance Worker position. However,
it would appear that, because of the difference in the alternative qualifications for
the two positions (a certificate of qualification for Industrial Mechanic Millwright,
for the General Maintenance Worker position, as opposed to a skilled trades
certification for the Ce-erdinater position), Mr. Haskin satisfied the requirements
35
for the Co-ordinator position as he had obtained a skilled trades certificate of
apprenticeship as a Building Maintenance Mechanic.
Finally, although the Union claimed that the Grievor ought to have
been granted an interview, as he performed the duties of the position, the
evidence does not support the Union's claim. Although it would appear that the
Grievor assisted in many of the job functions of the General Maintenance Worker
position under Mr. Haskin's supervision, there was no indication that he had ever
performed the job (or even substantially performed the job) without supervision.
In summary, as the Board finds that (1) the higher-level educational
qualification, namely, a two-year CAAT technology diploma, is reasonably related
to the requirements of the General Maintenance Worker position; and (2) the
Grievor did not possess this higher-level qualification (or equivalent
qualifications), the grievance must be dismissed. However, the Board would
encourage the College to look into the matter of the Grievor's apprenticeship and
to credit him with the number of on-the-job training hours properly attributable to
his apprenticeship. As previously stated, a certificate of apprenticeship as a
Building Maintenance Mechanic would not have satisfied the requirements of the
General Maintenance Worker job posting, but presumably will assist the Grievor
36
with further job opportunities.
DATED AT TORONTO, this 16th day of October, 2001.
Chair
"Robert J. Gallivan"
College Nominee
"Edward Seymour"
Union Nominee