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HomeMy WebLinkAboutMacLeod 03-05-01IN THE MATTER OF AN ARBITRATION BETWEEN: CONESTOGA COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 238 AND IN THE MATTER OF THE GRIEVANCE OF S. MACLEOD OPSEU GRIEVANCE NO. 2002-0238-0004 OPSEU FILE NO. 02A327 BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR JACQUELINE CAMPBELL, COLLEGE NOMINEE EDWARD E. SEYMOUR, UNION NOMINEE APPEARANCES FOR THE COLLEGE: BRENT LABORD, COUNSEL FOR THE UNION: NELSON J. ROLAND, COUNSEL AWARD The Grievor, Sheila MacLeod, claims that she was not given proper consideration for a vacancy in the position of Co-operative Education Advisor, Atypical SSO, Payband 12, at the College's Doon Campus. The successful applicant, Kitty Rumstedler, attended the hearing and participated in the proceedings. The issue at this juncture is the proper interpretation of Article 17.1.1 of the collective agreement, which governs the selection of the successful applicant for a vacant position. Article 17.1.1 is to the following effect: 17. JOB POSTINGS/PROMOTIONS 17.1.1 Consideration - Bargaining Unit Employees When 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. Where 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. Apart from the current Article 17.1.1, reference was made to the predecessor provision, which was in effect prior to the introduction of the current 2 provision in the 1989 - 91 collective agreement. The predecessor provision reads as follows: Consideration - Bargaining Unit Employee When a vacancy in the bargaining unit occurs and employees within the bargaining unit make application for such vacant position, the College will give proper consideration to the qualifications, experience, and seniority of all applicants in relation to the requirements of the vacant position .... Union Submissions The Union submitted that under Article 17.1.1, seniority is to be taken into account, along with qualifications and experience, in its initial assessment of applicants, and not just as a "tiebreaker" in the event that the qualifications and experience of two or more applicants are found to be relatively equal. The Union further submitted that, as the College failed to consider seniority in the initial assessment of applicants, the selection process was fundamentally flawed. It was further submitted that Article 17.1.1 has already been interpreted in Re Ontario Council of Regents for Colleges (Sir Sandford Fleming College) and Ontario Pubfic Service Employees Union, Local 351 (98C444); Grievance of Nisbett, May 3, 2000 (Simmons (unreported)) (the "Sandford Fleming" decision). In that case, in which the senior applicant was unsuccessful on a job posting, the board held, among other matters, that seniority is to be 3 considered along with qualifications and experience in the initial assessment of applicants for a job vacancy, and not just as a tiebreaker in the event that two or more applicants are found to be relatively equal. The Union further submitted that although resjudicata does not apply, under a "master" collective agreement, such as the one between the Council of Regents and OPSEU, one board of arbitration should not sit in "appeal" over another. Accordingly, where the grievance involves the same issue, if the interpretation of the previous board of arbitration is "arguable", or even "possible", under the terms of the collective agreement, that interpretation ought to be adopted. The Union, therefore, submitted that the interpretation given to Article 17.1.1 in the Sandford Fleming decision ought to be accepted by this Board. College Submissions The College submitted that Article 17.1.1 is a relative ability, or competition, clause, under which the most qualified and experienced applicant is entitled to the position, and seniority governs only where the qualifications and experience of two or more applicants are relatively equal (provided the successful applicant has the necessary qualifications and experience to fulfil the requirements of the position). The College further submitted that the predecessor provision was a hybrid clause, under which seniority was a factor to be given "proper consideration", along with qualifications and experience, in selecting the successful applicant for a job vacancy. According to the College, 4 were the Union correct that seniority is to be considered in the initial assessment of applicants, the current provision would also be a hybrid clause, in which case, the amendment to the predecessor clause would have had no effect. However, it must be presumed that when the parties negotiate an amendment to the collective agreement, they intend that amendment to have some effect. It was further submitted that collective agreements are not negotiated in a vacuum but against a background of established arbitral jurisprudence. According to the College, however, the Sandford Fleming award is inconsistent with (1) the arbitral jurisprudence in which provisions similar to Article 17.1.1 have been interpreted as being relative ability, or competition, clauses; and (2) other college decisions, which have held that Article 17.1.1 is a relative ability clause, under which the most qualified and experienced candidate is entitled to the position and seniority governs only where the qualifications and experience of two or more applicants are relatively equal. The College further submitted that, although the majority of the Board in the Sandford Fleming case decided that seniority had to be taken into account, along with qualifications and experience, in the initial assessment of applicants, this conclusion cannot be correct, as there is no provision for a tiebreaker where qualifications, experience and seniority for a job posting are relatively equal (although seniority is the tiebreaker where qualifications and experience are found to be relatively equal). 5 Finally, the College submitted that there has been an understanding since 1991 as to the meaning of Article 17.1.1 and that that meaning was accepted until the Sandford Fleming decision, which provided an interpretation at variance with both the parties' understanding and the arbitral jurisprudence. In summary, the College submitted that the first sentence of Article 17.1.1 identifies the factors to be taken into account in assessing the applicants for a job vacancy and the second, directs the College as to how these factors are to be applied, namely, that the College is required to assess applicants on the basis of qualifications and experience, and then apply seniority as the tiebreaker in the event that the qualifications and experience of two or more applicants are found to be relatively equal (provided the successful applicant has the necessary qualifications and experience to fulfil the requirements of the position). Union Reply Submissions The Union submitted, by way of reply, that, although Article 17.1.1 is not a competition clause, it is not of assistance to characterize it as being a hybrid clause. Rather, it should be concluded that seniority is taken into account in the initial assessment of applicants and, not just as a tiebreaker where the qualifications and experience of two or more applicants are relatively equal. In any event, the Union submitted that the Board should not proffer a new 6 interpretation of Article 17.1.1, but rather should accept the interpretation provided in the Sandford Fleming decision. In this regard, the Union submitted that the Sandford Fleming decision was the first time the interpretation of Article 17.1.1 was subjected to a careful analysis or even directly addressed in the college jurisprudence. Accordingly, although there has been some commentary in other college decisions that seniority is not to be taken into account in the initial assessment of applicants under Article 17.1.1, the Union submitted that these comments were obiter dicta, i.e., not essential to the conclusions reached in their respective decisions. Therefore, it should be concluded that the Sandford Fleming decision was a matter of first impression and, as the decision was not clearly wrong, it should be accorded arbitral deference and followed in this case. Finally, the Union submitted that if the College disagreed with the conclusion in the Sandford Fleming decision, it should have proceeded by way of an application for judicial review, in which case, the decision would have been subjected to a lower standard of review than were this Board to assess the correctness of the decision. In any event, as the College did not proceed by way of judicial review, it is inappropriate to ask this Board to sit in "appeal" over the Sandford Fleming decision. The College submitted, by way of surreply, that it was not open to Conestoga College to judicially review a decision involving another college. 7 Decision The issue in this case relates to the role of seniority in the selection of a successful applicant for a vacant position under Article 17.1.1. In particular, the issue is whether seniority is to be considered in the initial assessment of applicants, and not just as a "tiebreaker" in the event that the qualifications and experience of two or more applicants are found to be relatively equal. Article 17.1.1 of the collective agreement provides that, in the context of a vacancy for which employees in the bargaining unit apply, (1) 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; and (2) where the qualifications and experience of two or more applicants are relatively equal, seniority shall govern (provided the successful applicant has the necessary qualifications and experience to fulfil the requirements of the position). This provision represents a change from the predecessor clause, which provided that, in a similar context, the College will give "proper consideration" to the qualifications, experience and seniority of all of the applicants in relation to the requirements of the vacant position. As the Sandford Fleming decision properly points out, the current provision represents a change from the predecessor in two material respects. Firstly, the College's obligation is to "determine the successful candidate based 8 on", rather than to "give proper consideration to", the qualifications, experience and seniority of the applicants in relation to the requirements of the vacant position. Secondly, seniority is identified as the tiebreaker in the event that the qualifications and experience of two or more applicants are found to be relatively equal. Notwithstanding the introduction of a tiebreaker where qualifications and experience (but not seniority) are relatively equal, because the parties did not delete "seniority" from the list of factors to be taken into account in determining the successful applicant, the board in the Sandford Fleming case held that (1) seniority was required to be considered, along with qualifications and experience, in the initial assessment of applicants for a job vacancy; and (2) "[b]y omitting to determine the successful applicant based on seniority along with the qualifications and experience of the applicants in relation to the requirements of the vacant position, the employer violated the requirements set out in art. 17.1.1" In our view, however, by introducing a tiebreaker in the event of relative equality in the qualifications and experience of two or more applicants, the parties have fundamentally altered the requirements for determining the successful applicant for a job vacancy. Whereas previously, the collective agreement mandated that "consideration" be given to a number of factors, including seniority (commonly characterized as a "hybrid" clause), the collective agreement now provides for a competition. Such was the determination in Re Fanshawe College and Ontario Pubfic Service Employees' Union; Grievance of Doughty (OPSEU File 92A271), 9 April 19, 1994 (Brent (unreported)) (the "Fanshawe College" decision), in which the grievor had significantly greater seniority than the incumbent, the board held that "given the agreement between the parties set out in Article 17.1.1, if there is relative equality between the qualifications and experience of the two, then the grievor's seniority should prevail" and that "it is obvious that [Article 17.1.1] is a competition clause. That is, the College has the right to choose the best candidate subject to the overriding condition that seniority must govern if all else is equal." The board then concluded that the qualifications and experience of the grievor and the incumbent were not relatively equal and that, as the incumbent had greater qualifications and experience, there was no violation of the collective agreement. It should be stated that although the Fanshawe decision deals with the issue in a more cursory manner, it is of equal precedential value to the Sandford Fleming decision, which deals with the matter more fully. Finally, in Re Niagara College and Ontario Pubfic Service Employees Union; Grievance of Perenack (OPSEU File No. 91B225), September 24, 1991 (Carter (unreported)) (the "Niagara College" decision), in which a secretarial position was awarded to an employee with considerably less seniority than the griever, the board noted that "[i]t was not disputed that his [sic] provision contemplates a competition between applicants for a posted position. Greater seniority, therefore, only becomes relevant if it can be established that experience and qualifications are relatively equal." However, as it was found that the experience and qualifications of the griever were not relatively equal to those 10 of the successful applicant and as the selection process was not fatally flawed, the grievance was dismissed. Apart from the college jurisprudence, which appears divided with respect to the interpretation of Article 17.1.1, the prevailing (although not the unanimous) view outside the college sector is that provisions similar in nature to Article 17.1.1, in which seniority is taken into account only after relative equality is established on non-seniority factors, are competitive clauses. In Re Sault Ste. Marie (City) Pubfic Utilities Commission and C.U.P.E., Loc. 3 (Miller) (1994), 44 L.A.C.(4th)286 (Hinnegan), the board explained its reasoning at p. 288 as follows: Article 13.01 here commences by stating generally that the filling of job vacancies shall be according to seniority, ability and proficiency to perform the work; but, significantly, it then goes on to specifically direct the employer as to how those three factors are to be applied by providing further that, 'where ability and proficiency are relatively equal, seniority shall be the determining factor'. It is, of course, not possible to determine whether candidates are relatively equal in ability and proficiency to perform the work without assessing and comparing them on the basis of those two factors. Notable also is that this provision refers not only to ability to perform the required work but also to proficiency, which clearly sets up a competition among candidates as to their respective abilities to perform the work. If any of those found able to do the work are deemed relatively equally proficient in that regard, then seniority is the determining factor between them. Article 13.01 cannot logically be read any other way in that that is what it says in clear and unequivocal language. Accordingly, the employer is expressly obliged to assess and compare candidates on the basis of ability and proficiency to perform the required work and then apply seniority as the determining factor should the proficiency of any two or more of the candidates able to do the work 11 be found relatively equal. Indeed, had the employer done otherwise, it would have breached the express language of art. 13.01. As can be clearly seen, it does not say 'but where ability and proficiency and seniority are relatively equal, seniority shall be the determining factor'. Had it done so, the reasoning in the Newfoundland case [Re Newfoundland (Department of Works, Services and Transportation) and N.A.P.E. (Bowers) (1992), 30 L.A.C.(4th)13 (Alcock), ... which expressly provided that relative equality was determinable by three criteria -- qualifications, ability and seniority] would be applicable; but, having couched the language of art. 13.01 in the terms in which they did, the parties have made it abundantly clear that their intent was the normal competition clause referred to earlier. As stated, art. 13.01 cannot logically be read in any other way. For other cases in which it has been held, on language similar to Article 17.1.1, that seniority is to be taken into account only after relative equality is established on non-seniority factors, see Re Dufferin-Peel Roman Cathofic Separate School Board and Canadian Union of Pubfic Employees, Local 1483 (1985), 21 L.A.C.(3d)368 (Kennedy); Re A.O. Smith Enterprises, Ltd. and United Steelworkers of America, Local 3313; Grievance of Thibeault, May 28, 1991 (Brandt); Re Metropofitan Toronto Separate School Board and C.U.P.E., Loc. 1280 (1990), 11 L.A.C.(4th)252 (Marszewski); Re York Region Roman Cathofic School Board and Canadian Union of Pubfic Employees; Grievance of Carnevale, October 11, 1989 (Burkett (unreported)); Re Manitoba Housing Authority and International Authority and I.U.O.E., Loc. 827 (1995), 47 L.A.C.(4th)I (Hamilton); Re British Leaf Tobacco Co. of Canada Ltd. and Canadian Union of Operating Engineers & General Workers (1981), 3 L.A.C.(3d)235 Kennedy); Re Bank of Montreal, Tweed Branch and Commercial Workers Union, Local 486 (1982), 6 L.A.C.(3d)289 (Carter). 12 To the opposite effect is Re St. John's Training School for Boys and OPSEU; Grievance of Sneyd, May 30, 1996 (Kaplan (unreported)) (the "St. John's Training School' decision), wherein the collective agreement provided that seniority shall be considered along with non-seniority factors in filling a vacancy and that, where, in the judgment of the employer, non-seniority factors are relatively equal, seniority governs. In the context of this agreement, it was held that seniority is not limited to consideration "following a determination of relative equality", but must be considered in the initial consideration of applicants as well. Although the St. John's Training School decision was cited in Re McMaster University and Canadian Union of Pubfic Employees, Local 3906, Unit 2, April 30, 1999 (Devlin (unreported)) (the "McMaster Universitj/' decision), in our view, the collective agreement in McMaster University is distinguishable from the agreement in St. John's Training School (and, therefore, from the agreement in the instant case). In McMaster University, the collective agreement provided that seniority be taken into account in the initial assessment of applicants, along with a number of non-seniority factors, and that where two or more candidates have equal "qualifications", the candidate with the most seniority will be selected. As the term "qualifications" was found to be inclusive of all factors, including seniority, the majority concluded that "seniority must be considered together with the other criteria set out in the Article and that the University's failure to do so constituted a violation of the collective agreement". To similar effect is the 13 decision in Re West Lincoln Memorial Hospital and Niagara Health Care & Service Workers Union, Loc. 302 (Charlebois) (1999), 83 L.A.C.(4th)105 (Burkett) (the "West Lincoln" decision), in which the collective agreement provided that employees shall be selected for positions on the basis of both seniority and non-seniority factors and that where these factors are relatively equal, seniority governs (provided the successful applicant is qualified to perform the available work). On this basis, it was held, in effect, that seniority was to be taken into account, along with non-seniority factors, in the initial assessment of applicants and was the determining factor in the event of relative equality among two or more applicants. However, a similar conclusion in this case, namely, that seniority is required to be taken into account in the initial assessment of applicants (which was, in effect, the conclusion in the Sandford Fleming case) would be anomalous, as there is no provision for a tiebreaker where qualifications, experience and seniority are relatively equal. Moreover, if seniority were taken into account in the initial assessment of applicants where qualifications and experience are not relatively equal, the senior applicant might be awarded a position over a junior applicant with superior qualifications and experience because her seniority outweighed the discrepancy. Such a result would be inconsistent with the express agreement in Article 17.1.1 that seniority governs only where qualifications and experience of the respective applicants are relatively equal. On the other hand, had the collective agreement provided for 14 seniority to be taken into account in the determination of relative equality (as it was found to be in the McMaster University and West Lincoln decisions), there would be no inconsistency and the Board would have required that seniority be taken into account both in the initial assessment of the applicants and as a tiebreaker in the event that two or more applicants were found to be relatively equal. However, as there is no provision in Article 17.1.1 requiring that seniority be taken into account in the determination of relative equality, the Board is constrained to conclude that the College is not obligated to take seniority into account in the initial assessment of applicants under Article 17.1.1, but only as a tiebreaker in the event that the qualifications and experience of two or more applicants are relatively equal. This conclusion, we note, is consistent with the conclusion in the Fanshawe decision, which dealt with the matter directly, although more concisely than the Sandford Fleming decision. Accordingly, it is not a matter of arbitral deference, but of choosing between opposing views. In the result, the Board finds that Article 17.1.1 is a relative ability clause, which identifies the factors which are to be taken into account in assessing the applicants for a job vacancy (namely, qualifications and experience) and then directs the College as to how these factors are to be applied, i.e., that the College is required to assess applicants on the basis of qualifications and experience, and then apply seniority as the tiebreaker in the event that the qualifications and experience of two or more applicants are relatively equal (provided the successful applicant has the necessary 15 qualifications and experience to fulfil the requirements of the position). In the result, the Board is unable to conclude that the College violated the collective agreement in failing to consider seniority in the initial assessment of applicants for the vacancy in question. However, as no evidence has been heard as to the merits of the dispute, the Board will remain seised to deal with this matter. DATED AT TORONTO, this day of May, 2003. Chair "Jacqueline Campbell" College Nominee See Dissent Attached Union Nominee