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HomeMy WebLinkAboutPehlemann 00-09-14IN THE MATTER OF AN ARBITRATION BETWEEN: DURHAM COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF THE GRIEVANCE OF O. PEHLEMANN BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR RICHARD O'CONNOR, COLLEGE NOMINEE SHERRIL MURRAY, UNION NOMINEE APPEARANCES: FOR THE COLLEGE: PETER J. THORUP FOR THE UNION: MARY ANNE KUNTZ OPSEU FILE NO.: 99D100 HEARING DATE: APRIL 5, 2000 AWARD The Grievor in this case, Ollie Pehlemann, alleges that the College applied the bumping procedure set out in Article 15.4.3 of the collective agreement so as to provide another employee, Lisa Burt, with a promotion to the position of Support Services Officer C, Payband 11. As a result, the Grievor was denied an opportunity to compete for the position. Ms. Burt was given notice of these proceedings, but elected not to attend. The relevant facts are as follows: Prior to January 1999, Ms. Burt was classified as a Support Services Officer Atypical, Payband 10, in the Office of the Vice-President. In early 1999, it was anticipated that Ms. Burt's position would be declared redundant. In fact, formal notice of redundancy was given on April 14, 1999, effective July 1, 1999. However, as Ms. Burt was expected to be on maternity leave from August 2, 1999 to February 16, 2000, the effective date of her notice of redundancy was changed to August 2, 1999. As to the position in question, the evidence indicates that for some time, this position was excluded from the bargaining unit. The position was occupied by Judith Reid, a temporary employee, who was filling in for the regular incumbent, Janice Robinson, who was working on a sessional teaching assignment. As of January 4, 1999, the Support Services Officer position became part of the bargaining unit and was classified as Support Services Officer C, Payband 11. As of the date of its inclusion in the bargaining unit, that position continued to be filled by Ms. Reid on a term contract, which was scheduled to expire on August 31, 1999. In the meantime, as of February 16, 1999, the Employment Stability Committee ("ESC"), comprised of three persons from the Local Union and three persons from the College, had been advised of Ms. Burt's impending redundancy. Among the Local Union members of ESC were Nick Nemetz, President of the Local Union, and Ms. Burt, who was Local Vice-President. The ESC had also been advised that Ms. Robinson would be getting a regular teaching position, which would result in a vacancy in the Support Services Officer C position. Although Ms. Burt properly excused herself from the deliberations respecting the matter, the ESC decided to assign Ms. Burt to the vacancy. Although Ms. Burt's assignment would have taken effect in the summer of 1999, due to her maternity leave, the assignment did not take effect until some time in February, 2000. Accordingly, Ms. Reid's contract was renewed from 4 August 31, 1999 to February 16, 2000 to cover the period of Ms. Burt's maternity leave. The Grievor, Ms. Pehlemann, was employed as a Library Clerk Atypical, Payband 7. Evidently, the Griever was aware that a Support Services Officer C, Payband 11 position had been created in the bargaining unit in January, 1999 and that the position was being filled by a temporary employee whose contract was due to expire in the summer of 1999. The Griever was hopeful that, when the contract expired, the Support Services Officer C position would be posted. In fact, her interest in the position was such that she called in during her vacation in July, 1999 to inquire about its status. Upon her return from vacation, however, the Griever became aware that the position would not be posted; that Ms. Burt, who was junior to the Griever, had been assigned to the position; and that Ms. Reid would continue to occupy the position on a temporary basis for the period of Ms. Burt's maternity leave. As a result, Ms. Pehlemann filed this grievance, requesting that the position be posted. Although the Union contended that the ESC acted improperly, and in contravention of the collective agreement in assigning Ms. Burt to the Support Services Officer C, Payband 11 ~esitien, the College submitted that the assignment was agreed to by the ESC, which is a bipartite committee, and, therefore, that the Union was estopped from complaining about the matter. In the Board's view, the College is correct with respect to this matter. Although the collective agreement contains comprehensive provisions respecting layoff and recall, including the establishment of the ESC, in the Board's view, it is unnecessary to consider those provisions in the context of this grievance. In this case, the ESC made a recommendation, which was implemented by the College, that Ms. Burt be assigned the Support Services Officer C position vacated by Ms. Robinson. As the ESC entered into an agreement, it is simply not open to the Union to resile from that agreement. This case is substantially similar to another between these parties in which the Union was estopped from arguing that the College violated the collective agreement in assigning an employee who had been declared surplus to a vacant position which the grievor in that case wished to apply for. In Ontario Pubfic Service Employees Union and George Brown College; Grievance of Slomiak, March 16, 1995 (Howe (unreported)), after an employee by the name of Mr. Porco was declared surplus, the Union and College members of the ESC agreed that another employee, Mr. Service, be allowed to take early retirement and that Mr. Porco be permitted to fill the vacancy resulting from Mr. Service's retirement. Based on their agreement, which was implemented by the College, the Union agreed that it was estopped from arguing that the College violated the collective agreement in failing to post the vacancy. Although there was no agreement that the Union was estopped in this case, the principles which apply are the same. The Union members of the ESC entered into an agreement with respect to the assignment of Ms. Burt to a vacancy in the position of Support Services Officer C, Payband 11, which was implemented by the College. In these circumstances, the Union is precluded or, in other words, estopped, from arguing that the College violated the collective agreement in failing to post the vacancy so that other employees, including the Grievor, could apply for the position. In the result, the grievance must be dismissed. DATED AT TORONTO, this 14th day of September, 2000. "Maureen K. Saltman" Chair "1 concur- Richard O'Connor" College Nominee See dissent attached Union Nominee Dissent I must, with respect, dissent from the majority opinion in this matter. The grievance asserted a violation of Article 15.4.3. In my view, it would have been preferable to have addressed the merits of the case. Counsel for the Union asserted the following: Article 15.4.3 is the "Bumping Procedure". The parties negotiated language that says that the first step in that process is to find a position in the same classification. In the CAAT (S) system, that concept of classification incudes two distinct elements: a job family and a payband. The two elements cannot be separated whenever it is convenient. Had the parties intended to allow a person to be placed in any vacancy (regardless of payband) in their "job family", they presumably would have utilized the words "job family" rather than "classification" in Article 15.4.3. Indeed, the sequence in Article 15.4.3 is if direct placement to a vacancy in one's classification is not possible, it moves to maintenance of the payband and so on until the process is completed. Counsel for the Union also asserted that this grievance is distinguishable from the George Brown College (Howe) award. In that case, it was reasonable to confirm the decision of the ESC in that situation by way of the application of the estoppel principle. Indeed, it was consistent with both the position of the Union and with the interpretation of the central EERC who agreed it was appropriate to assign redundant employees to vacant positions that exist or arise at the time a layoff notice is given. That ESC decision did not involve a promotion. It was also a logical extension of the Union's priority of avoiding layoffs before looking to a competition process to fill a vacancy. In this instance, the Union asserts, the employer could have posted the job opportunity and Ms. Burt would not have suffered any prejudice as Article 15 would have still applied had she not been the successful candidate. Clearly, given her seniority and skills, there would have been a bumping opportunity available for her. Even where the parties have a good track record of labour relations, errors are made. In this instance, the parties were trying hard to rescue Ms. Burt from the perils of a layoff. Clearly, she is a skilled senior employee. Nevertheless, it is the Union's view that she was given an improper advantage as a result of the ESC decision that resulted in a loss of opportunity for Ms. Pehlemann and any others who might have competed for the higher paid position into which Ms. Burt was placed. Accordingly, I would have upheld the grievance, directed the employer to post the position, revisit the Article 15.4.3 process and do so in accordance with the collective agreement.