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HomeMy WebLinkAboutKavanagh Group 02-05-28 IN THE MATTER OF AN ARBITRATION BETWEEN; FANSHAWE COLLEGE The Employer - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION The Union AND IN THE MATTER o£a group grievance regarding an alleged failure to post a position. Board o£ Arbitration: I.G. Thorne, Chairman Robert GaIlivan, Employer Nominee Michael Sullivan, Union Nominee Appearances for the Employer'. Margaret Szilassy, Counsel Sheila Wilson, Human Resources Consultant Eleanor Mitchell, Administrative Assistant, Art & Design Division Frank Rodgcrs, Chair, An & Design Division Adriana Ripepi, Hicks, Morley Appearances for the Union: Maureen Doyle, Counsel Jean Fordyce, Witness Ann Cummings, Advisor Jan Lunn, Gfievor Brenda Kavanagh, Gfievor Lorraine Cox, Orievor Gloria Laidlaw, Gfievor Debbie Brown, Grievor Lisa Larabee, Gfievor Cindy Pellow, Gfievor A hearing in this matter commenced on May 22nd, 2002, at London, Ontario. 2 I~ERfM Eight employees assert that the College has breached Article 17 of the collective agreement, and other articles, by failing to post a position formerly held by an employee who has passed away. The position in question is that of Support Services Officer B (Payband 9) in the Design Division. All of the grievors state that they wished to have the opportunity to be considered for the position. They ask that it be posted as a full-time position in this bargaining unit. In brief, the College's response is that the position no longer exists: it says that some of the duties of the former position are now being performed by another position in the bargaining unit, while others are being carried out by a person in a supervisory position outside the bargaining unit. The College also has a preliminary objection to our jurisdiction. Implicit in its view of the situation is that it has the fight to assign some of the duties of the former position to a supervisor; the Union takes the view that the duties in question are bargaining unit work which cannot be so assigned and must be made available to members of the bargaining unit. The College also . maintains that the remaining duties would not be sufficient to make up a full-time position and that part-time positions are not posted under this collective agreement; the Union contends that the duties now distributed among the three positions are indeed sufficient to make up a full-time position and should be so posted. It appears that the parties are not far apart on a good deal of the factual situation, although some aspects may require the calling of evidence. It is not in dispute that the position known as Divisional Assistant in the Design Division, also described as Support Services Officer B in Payband 9, was held by the late Sharry Collins until the time of her death in February 2001. However Ms. Collins was quite ill and was absent for much of the time from June 2000 onward. A significant portion of Ms. Collins' duties - and the portion on which t_he parties have focused in their submissions - consisted of scheduling and timetabling activities for the Design Department. Among these duties were the compiling of Standard Workload Forms for employees and the scheduling of courses for students, including the allocation of space and the assignment of times. Much of this work was governed by the calendar and thus was subject to periods of peak demand. Ms. Collins was the only person in the Design Division who carded out these duties. By August 2000, her absence had resulted in what counsel for the Union described as a crisis situation. Individuals in other divisions in the College, among them being the grievors, carried out scheduling and timetabling duties in their own divisions, and their assistance was used in filling the _ gap caused by Ms. Collins' absence. However in the College's view more was required. Eventually a former incumbent of the position, Nona Irvine, was asked to come in and clean up the scheduling and timetabling in the division. Ms. Collins had come into the position on a 4 temporary basis as of September 1999 when Ms. Irvine had taken up a temporary position in the Hospitality Division. Ms. Irvine's new position became permanent in September 2000 and, as a result, so did Ms. Collins'. Then, in or about October 2000 Ms. Collins' duties were taken over by Eleanor Mitchell. Until that time Ms. Mitchell had held an administrative position excluded from the bargaining unit. From the Union's perspective there had been no indication during Ms. Collins' illness that any change to the complement of the division was planned or that Ms. Collins was to be laid off. In its view, the position was left vacant by the death of Ms. Collins. When the vacant position was not posted, the grievance was fried on March 2nd, 2001. From the College's viewpoint there had been a redistribution of responsibilities occasioned by administrative changes in the Division. There were changes in the administration of the Design Division following August 14th, 2000, when Frank Rodgers became Chairman of the Division. (Previously the Design Division and the Hospitality Division had been chaired by one individual, Mike Hanwell.) As of August 2000, the Design Division had 18 full-time faculty. Among the support employees were Ms. Collins' position (SSO B in Payband 9) and a Clerk C in Payband 6. Certain changes then took place and it appears that the parties do not wholly agree about the nature and extent of those changes. From the College's point of view, Mr. Rodgers assessed the administrative and support needs of the Division, which was. growing. He found that the administrative responsibilities involved were more than he could handle alone. This was particularly the case aider January 2001 when the Fine Arts Program became part of the Division. In addition the Horticulture Technician program was in the course of being created and Mr. Rodgers was assigned corporate cooperative responsibilities in connection with that program. Further, the Division was applying to the Ministry to have one of its programs made a degree program. Among the support employees, only the Clerk C was available as a first contact for people coming in to the departmental office and Mr. Rodgers decided that two individuals were needed in that area: there would now be the Clerk C and a Typist-Steno in PayBand 4. It was also decided that these two employees would be supervised by a new Administrative Assistant, Eleanor Mitchell, who joined the division on a temporary basis in or about October 2000, and permanently as of December. The position of the Typist-Steno B was initially part-time and later became full-time. As of February 2001 - again from the College's perspective - the duties formerly performed by the SSO B Payband 9, were evaluated and distributed to other employees in the new departmental structure: basic clerical duties were assigned to the Typist-Steno in PayBand 4, while the timetabling and scheduling duties were assigned to the Administrative Assistant. . However the College's evidence would be that most of the work of the Administrative Assistant position, being the supervision of the two support staff and other managerial duties, was work which Ms. Collins had not performed. The upshot of these changes, in the College's view, was 6 that there was no vacant position of SSO B at the time of Ms. Collins' death in February 2001, and accordingly no posting took place. At the outset of the hearing it appeared that an important aspect of the College's preliminary objection arose out of a challenge the Union had made to the exclusion of the Administrative Assistant position from the bargaining unit. In that respect it was the College's understanding that the Union was making a challenge with respect to the Administrative Assistant position of Eleanor Mitchell and had done so since January 3rd, 2000. In those circumstances, the College considered, the status of the position of Administrative Assistant should be determined in accordance with Section 81 of the Colleges Collective Bargaining Act: 81. If, in the course of bargaining for an agreement or during the period of operation of an agreement, a question arises as to whether a person is an employee, including a question as to whether a person employed as a chair, department head, director, foreman or supervisor is employed in a managerial or confidential capacity within the meaning of the definition in section 1 of "person employed in a managerial or confidential capacity" and the Schedules, the question may be referred to the Ontario Labour Relations Board and its decision thereon is final and binding for all purposes. Counsel for the College argued that what the grievance was really attempting was a challenge to the fact that the duties of Ms. Collins' former position were being performed by an ' Administrative Assistant outside the bargaining unit, rather than that there was a vacancy. The College contended that that issue was not grievable under the collective agreement. In addition the Union should be precluded from maintaining the grievance when at the same time it was challenging' the status of the Administrative Assistant position and claiming that it was one properly within the bargaining unit. It then appeared that the Union would not in fact be proceeding with a challenge that Ms. Mitchell's position should be included in the bargaining unit. Specifically, counsel for the Union confirmed that, if this board should find that it has jurisdiction to consider the grievance and if the Employer should be successful on the merits of the grievance, the Union would not be seeking to proceed with an inclusion question at the Ontario Labour Relations Board with respect to Ms. Mitchell and the duties she currently performs. This development did not eliminate thc disagreement between the parties and the College maintained its objection. Counsel argued that the Union should be held to the terms of its grievance, which alleged a violation of Article 17 and asked for an award that a position be posted. It appeared that the Union was raising the issue that it was not an appropriate exercise of management rights to rearrange some duties that had been performed by bargaining unit members, but that issue was beyond the scope of the grievance as it was now framed. Counsel for the Union maintained that the issue had always been that Ms. Collins' duties, once she was no longer performing them, created a vacancy which should have been posted. That the grievance was framed in those terms did not isolate the issue from other language of the collective agreement. The College could not assign bargaining unit duties which formed the basis 8 of a bargaining unit position to someone else, and say that there was no vacancy and thus escape its obligations under Section 17 to post a vacancy. If there were bargaining unit duties to be done there was a vacancy. The issues have been clarified by the parties' preliminary arguments. The question of an alternative forum for a determination of the status of the Administrative Assistant is no longer relevant: the Union is not proceeding with a challenge under the Colleges Collective Bargaining Act with respect to this position and has undertaken not to do so even if the Employer succeeds on the merits of the present grievance. It is apparent to the board that what is at the heart of the Union's grievance - and what it must almost certainly rely on to succeed - is some application of the concept of bargaining unit work. That is, the Union says that the scheduling and timetabling activities now being performed by the Administrative Assistant are work of the bargaining unit which may not be done by a supervisory person and must be assigned to a position within the bargaining unit. What is said to make this work that of the bargaining unit, it appears, is the fact that it was done by a bargaining unit member in the past and that other such work is at present done I~y members of the bargaining unit. In respect of this issue the College relies on Article 3 of the agreement: 3. MANAGEMENT FUNCTIONS 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the Colleges to: - maintain order, discipline and efficiency; - 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 fight 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. The Colleges agree that these functions will be exercised in a manner consistent with the provisions of this Agreement. Thus the College contends that, in assigning the work formerly performed by Sharry Collins as it has, it is carrying out its exclusive function to determine the number, location and classification of personnel required. We have not been directed to any provision of the Agreement which expressly reserves work to members of the bargaining unit or restricts its performance by managerial employees outside the bargaining unit. However, it is fair to say that _ this issue has not been extensively examined by the parties to this point in the heating. The board's view is that this issue is properly an issue going to the merits of the grievance 10 and need not be considered as a preliminary matter. So far as the grievance itself is concerned, we are satisfied that it sufficiently sets up the issue to permit the question of bargaining unit work to be explored. The Union claims that a vacancy exists and has not been posted. It is open to it to lay the groundwork and to attempt to persuade the board that a vacancy does indeed exist under the provisions of the collective agreement. Subject to the parties' further submissions, it appears to the board at this point that, to make out its case, the Union must at least show: 1. that certain types of work are reserved to members of the bargaining unit under the collective agreement; 2. that the scheduling and timetabling work in issue is so reserved; 3. that there is sufficient such work to occupy a full-time position and that the College is obliged to assign it to such a position. In this connection we observe that some of the work formerly done by Ms. Collins has been assigned to another bargaining unit member and that an additional staff person has been taken on in part to perform that work. We understand that the Union does not seek to use any of the work being done by the bargaining unit employee to make up a full-time position. Thus it appears that, ifa full-time position is to be shown to be vacant, its work must consist solely of the timetabling and scheduling work formerly' done by Ms. Collins noW being done by the Administrative Assistant. 11 It may be tha'i ~:he nature and extem of the work in issue may not be the most difficult issue in this case and it may be that the parties can reach substantial agreement on questions of fact or, at least, that they can narrow what is in dispute so that extensive evidence is not required. Accordingly we will set one further day for the continuation of the hearing. Dated at Kingston, Ontario, this 28th day of May 2002. ~ome, Chai~--~ I concur "Robert Gallivan" Robert Gallivan, EmplOyer Nominee I concur "Michael Sullivan" Michael Sullivan, Union Nominee