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HomeMy WebLinkAboutMacEwan 04-10-13IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 612 AND IN THE MATTER OF THE GRIEVANCE OF N. MACEWAN BOARD OF ARBITRATION: MAUREEN K. SALTMAN, CHAIR JOHN PODMORE, COLLEGE NOMINEE SHERRIL MURRAY, UNION NOMINEE APPEARANCES: FOR THE COLLEGE: DAVID W. BRADY, COUNSEL FOR THE UNION: JOHN BREWIN, COUNSEL OPSEU FILE NOS.: 2003-0612-0006 2003-0612-0007 2003-0612-0008 HEARING DATE: March 16,2004 AWARD In May, 2003, the Grievor, Nell MacEwan, whose seniority dates from December 1, 1972, was employed as an Audio Visual Support Specialist in the Audio Visual Support Department. On May 23rd, the Grievor filed three grievances (#2003-0612-0006, 2003-0612-0007 and 2003-0612-2008). At the outset of the hearing, the Board was advised that grievance #2003-0612-0008 had been withdrawn on a "without prejudice" basis. Although the Board remains seised of grievances #2003-0612-0006 and 2003-0612-0007, this award deals only with grievance #2003-0612-0007, which claims improper layoff and a denial of bumping rights. In the spring of 2000, some three years before the filing of the grievances, the Grievor was employed as a Media Production Technologist, Technologist B, payband 10, in the Audio Visual Support Department. Some time prior to May 29, 2000, the Union was advised that the Grievor's position and that of another employee in the Department would be declared redundant, and that some of the duties would be combined into a new Technician B, payband 8, position. However, the Union took exception to the Company's' proposal to declare both positions redundant and, following a meeting of the Employment Stability Committee ("ESC") and the submission of separate recommendations to 2 the President of the College by the Union and College members of the ESC, the other employee's position was declared redundant. That employee was given notice of layoff and allowed to exercise his bumping rights under the collective agreement. The Grievor, on the other hand, was assigned to the new Technician B position at payband 8, and his rate of pay, "red-circled" at his former payband 10 level. With respect to red-circling, it would appear that the College agreed to red-circle the Grievor's rate of pay at the payband 10 level, as the Grievor was within five years of retirement (although there was no indication whether he intended to retire) and it would improve his pension benefit, if it were calculated on the higher (payband 10) rate of pay. The Grievor was advised of the manner in which his position would be dealt with in the following memorandum: CONFIDENTIAL MEMORANDUM TO: Neil MacEwan FROM: Reclassification of Position DATE: June 19 2000 The position you occupy has been redefined and is classified as a Technician B, Pay Band 8. Reclassification of this position becomes effective Monday, June 26, 2000. There will not be an immediate impact on your rate of pay as a result of reclassification, however, your rate of pay will be red-circled. The rate of pay at the 3-year level of Pay Band 8 is $18.15 per hour. Your current rate of pay is $21.23 per hour. The difference is $3.08 per hour and is known as a cents per hour differential. Red-circle Rates and how they impact an employee's pay is as follows: You will be paid a rate of $18.15 per hour and a cents per hour differential of $3.08. When a change in the salary rates in the Collective Agreement for Support Staff Employees is negotiated you will receive the negotiated increase, however, your cents per hour differential only is reduced by 10 cents per hour. You will then be paid the new rate at the 3-year level for Pay Band 8 plus $2.98 per hour, etc. The cents per hour differential is reduced only when new salary rates are implemented. Please sign and return the attached Position Description Form to me. 'P. Store¥-Inkster' Peggy Storey-lnkster Director, Computer Services C: Human Resource Services D. St. Pierre, OPSEU Local 612 This arrangement continued until April 2003, when the Grievor was given notice of layoff as followS: CONFIDENTIAL MEMORANDUM TO: Neil MacEwan DATE: April 10 2003 We regret that due to the financial position of the college, the position you occupy as a Technician B, Audio Visual Support, has become surplus to requirements. In accordance with Article 15 of the Support Staff Collective Agreement we have not identified a reassignment for you. Please consider this as your notice of lay-off effective at the close of business on Wednesday, July 9 2003. To assist you in your search for alternate employment you will be released from active employment effective at the close of business on Friday, May 9 2003. You are entitled to receive severance pay equivalent to one week of pay for each completed year of service to a maximum of 26 weeks. You may elect to receive your severance pay at this time and waive your right to recall or you may retain your recall rights and elect your severance at any prior to the end of your recall period which is 18 months from your lay-off date provided you have not been recalled. In lieu of layoff, you have been pre-approved to particiPate in the Early Leaving Incentive Plan. If you choose the Early Leaving option you will be required to sign an Irrevocable Early Leaving Agreement and the terms of the Early Leaving Incentive Plan will become applicable. Please sign and return one copy of this memorandum to Human Resource Services by the close of business on Thursday, April 17 2003 if you plan to elect this option. Otherwise, we will proceed with your layoff as stated above. We regret this action has become necessary. Please contact Rhonda Wright, Director, Human Resources (Ext. 694) if you have any questions and Gloria Grummett, (Ext. 696) to discuss issues related to your benefits and intention with respect to severance pay. 'Timothv R. Mever' 'Pe.q.qv Storey-lnkster' Timothy R. Meyer Peggy Storey, Acting Vice-President President Information Technology c: T. Alleway, R. Wright, G. Grummett, B. Rooney I elect to participate in the Early Leaving Incentive Plan in lieu of layoff. I understand that I will be required to sign an Irrevocable Early Leaving Agreement and the terms of the Early Leaving Incentive Plan will become applicable. 'N. MacEwan' 'April 15/03' Signature of Employee Date Prior to issuance of the notice of layoff, the ESC met in March 2003 to discuss a number of impending layoffs, including that of the Grievor. In conjunction with these discussions, the Grievor identified a payband 10 position, which he believed he could have performed. However, the College took the position that, as he was classified as a Technician B at payband 8, the Grievor was not eligible to bump into a payband 10 position and, further, that he could not have performed the core duties of the payband 10 position which he identified (this being an outreach/marketing position). Finally, the College took the position that the Grievor was not entitled to exercise his bumping rights, as he had elected to participate in the "Irrevocable Early Leaving Incentive Plan" in lieu of layoff. In fact, it would appear that the Grievor applied for an early leaving incentive on March 28, 2003. The application was approved and, on May 8, 2003, an agreement was entered into between the Grievor and the College, wherein the Grievor agreed to retire from the College effective June 30, 2003. Notwithstanding its characterization as an "irrevocable" early leaving incentive plan agreement, the Union maintained that the Grievor signed the agreement under duress and that, had he been allowed to bump into the payband 10 position, he would not have elected to retire. However, given the options available, the Grievor elected to take early retirement and invoke his right to grieve. The issue at this juncture is whether the Grievor was entitled to bump into the payband 10 position he identified in the spring of 2003. The provisions of the collective agreement which are relevant to a determination of this issue are as follows: 15. LAYOFF/RECALL PROCESS 15,4.3 Bumping Procedure The employee so identified shall be assigned by the College to the first position determined in accordance with the following sequence: - to a vacant position in their classification provided he/she can satisfac- torily perform the core duties and responsibilities of the job. If there is no such position then; -to a vacant position in the same payband provided he/she can satisfactorily perform the core duties and responsibilities of the job. If there is no such position then; - to the position held by the most junior employee within his/her same payband provided he/she can satisfactorily perform the core duties and responsibilities of the job and he/she has greater seniority. If there is no such position then; - to a vacant position in the payband with a maximum rate one lower than the employee's own payband provided he/she can satisfactorily perform the core duties and responsibilities of the job. If there is no such position then; - to the position held by the most junior employee in the payband with a maximum rate one lower than the employee's own payband provided he/she can satisfactorily perform the core duties and responsibilities of the job and he/she has greater seniority. - the provisions of the last two sections shall be repeated until all pay- bands have been reviewed in descending order of maximum rate and either a vacant position or a position held by a more junior employee is identified and the employee affected can satisfactorily perform the core duties and responsibilities of the job. If no such position is identified the employee shall be laid off. (To illustrate how this sequence operates, see the Letter of Understanding appended to the Collective Agreement, dated September 23, 1997.) 15.4.6 Red Circle Provision In applying the provisions of Article 15.4, persons being paid above the rate for their payband as a direct result of the commencement of the CAAT Support Staff Classification System on June 1, 1986, shall be deemed to be in the payband which has a maximum rate closest to, but no lower than, their actual rate. As well, reference was made to Article 4.1 and to Appendix E, the relevant portions of which are set out below: 4.1 Seniority List The College shall prepare and send a copy of the seniority list showing the employee's seniority, classification, payband, department, and home campus once every four (4) months to the Local Union President and the Union Head Office. A copy of the seniority list shall be Posted at each Campus of each College and a copy of such seniority list shall be made available for inspection by an employee on request. APPENDIX E EFFECTIVE SEPTEMBER 1, 2002 HOURLY WAGE RATE Payband Start 6 month 1 year 2 years 3 years 4 years 1 12.73 13.11 13.51 13.91 14.33 14.76 2 13.21 13.61 14.02 14.44 14.87 15.32 3 13.76 14.17 14.6 15.04 15.49 15.95 4 14.3 14.72 15.17 15.62 16.09 16.57 5 14.84 15.29 15.75 16.22 16.7 17.21 6 15.45 1'5.92 16.39 16.89 17.39 17.91 7 16.06 16.55 17.04 17.55 18.08 18.62 8 17.52 18.05 18.59 19.15 19.72 20.31 9 18.96 19.53 20.11 20.71 21.34 21.98 10 20.5 21.11 21.75 22.4 23.07 23.77 11 22.16 22.83 23.51 24.22 24.94 25.69 12 23.97 24.69 25.43 26.19 26.98 27.79 13 25.95 26.73 27.54 28.36 29.21 30.09 14 28.08 28.92 29.79 30.68 31.6 32.55 15 30.38 31.29 32.23 33.2 34.19 35.22 APPENDIX E C LASSIFICATIONIPAYBAND MATRIX PAYBAND No. of Wage Rate Steps JOB FAMILY/ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 CLASSIFICATION Bus Driver A 4 Caretaker A B 3 Child/Adult Develop- A 6 merit Counsellor Clerk, General A B C D 6 Clerk, Supply A B C 6 Computer Operator A B 6 Data Entry Operator A B 6 Driver A 3 -" Early Childhood Educ- A 6 ation Worker Food Service Worker A B C A-3, B-4, C-4 General Maintenance A 6 Worker Library Technician A B 6 Microcomputer A B 6 Operator Nurse A 5 Practical Nurse A 4 NOTE: The selection of the appropriate pay rates within a pay band and the progression through these rates is set out in Article 7.3. The following example outlines its application. An employee new to the position of Caretaker A (in Pay Band 2) will start at $13.56 as of September 1, 2000, a Caretaker A with 6 months of service in the position as of September 1, 2000 will be paid at the rate of $13.88 per hour and a Caretaker A with 1 year or more of service in the position as of September 1, 2000 will paid at the rate of $14.22 per hour. PAYBAND No. of Wage Rate Steps JOB FAMILY/ I 2 3 4 5 6 7 8 9 10 11 12 13 14 CLASSIFICATION Programmer A B C 6 Programmer/Analyst A B C 6 Reproduction Equip- A B C 6 ment Operator Secretary A B C 6 Security Guard A 3 Skilled Trades Worker A 3 Stationary Engineer A B C 3 Support Services Offic- A B C D 6 er Switchboard Operator A 6 Systems Analyst A 6 Technical Support Spe- A 6 cialist Technician A B C 6 Technologist A B C 6 Typist/Stenographer A B C 6 In addition, the parties referred to the following letters of understanding, which are appended to the collective agreement: November 16, 2000 Ms. Leah Casselman President Ontario Public Service Employees Union 100 Lesmill Road North York, Ontario M3B 3P8 ]0 Dear Madam: RED CIRCLE RATES Certain employees within the bargaining unit as of September 1, 2000 enjoyed 'red circle' rates paid due to special circumstances including transfers to positions within the bargaining unit. To the extent those special circumstances continue during the term of the Collective Agreement, the employees in question shall continue to enjoy such 'red circle' rates and the cents per hour differential over their respective rates and the then current applicable classification rate shall apply, subject to the reduction (or elimination) of such red circle rates by the lesser of 10 cents per hour or the elimination of such 'red circle' rate, effective September 1, 2000, September 1, 2001 and September 1, 2002. The conditions set out herein shall also apply to bargaining unit employees at Algonquin College currently receiving a bilingual allowance. Yours truly, I. McArdle Executive Director Council of Regents August30,1985 Mr. Jim Clancy President Ontario Public Service Employees Union 1901 Yonge Street Toronto, Ontario Dear Sir: RECLASSIFIED EMPLOYEES This will confirm an understanding reached during the negotiations concerning the status of employees affected by the implementation of the new classification system. It is understood that following the final implementation of the new classification system, and the implementation of the new wage rates on June 1, 1986, there may be a number of incumbents whose existing wage rates are above the new rates. We have agreed that, effective September 1, 1986, the salaries of thOse persons will be dealt with in accordance with the existing Letter of Intent concerning Red Circle Rates. This will record a further understanding concerning those persons. It is understood that, where such an employee, receiving a Red Circle Rate, is promoted to another position within the same job family to which the Red Circle Rates apply as a result of the implementation of the new classification system, the person promoted will receive the appropriate Red Circle Rate for the position to which the employee has been promoted. Yours truly, I. McArdle Secretary Staff Affairs Committee September 23, 1997 Ms. Leah Casselman President Ontario Public Service Employees Union 100 Lesmill Road North York, Ontario M3B 3P8 Dear Madam: LAYOFF/RECALL PROCESS - BUMPING For clarity, the parties agree that the following example demonstrates the general sequence of assignment which occurs pursuant to Article 15.4.3. Assuming that a Clerk General C in payband 6 is to be laid off and no vacant position exists in the Clerk General C classification or in payband 6, the employee is first considered to replace the most junior employee in his/her payband. If the employee cannot satisfactorily perform the core duties and responsibilities of the job, then he/she is considered to replace the next most junior person in his/her payband, and so on. Once all positions in the employee's payband that are held by less senior employees are considered, and it is determined that the employee cannot satisfactorily perform the core duties and responsibilities of the job, vacancies in payband 5 are considered. Assuming no suitable vacancies in payband 5 exist, the position held by the least senior employee in payband 5 is considered. If the Clerk General C cannot satisfactorily perform the core duties and responsibilities of the job, the position held by the next most junior employee in payband 5 is considered, and so on until all positions held by less senior employees in payband 5 are considered. If none are suitable, vacant positions in payband 4 are considered, etc. The employee will be assigned to the position identified pursuant to this sequence for which he/she can satisfactorily perform the core duties and responsibilities of the job. Yours truly, I. McArdle Secretary Human Resources Committee Submissions The Union submitted that the Grievor was entitled to bump into an outreach/marketing, payband 10, position. More particularly, the Union took the position that, under Article 15.4.3, (1) the Grievor had bumping rights, commencing with his classification and progressing to his payband, and to successively lower paybands; and (2) "payband" is not synonymous with "classification", but rather, refers to a range of rates set out in Appendix E to the collective agreement. As the Grievor was paid, under a red-circling arrangement, within the range of rates applicable to payband 10, he must be considered to come within that payband, which the Union claimed is consistent with the treatment accorded employees whose rates of pay were red-circled as a direct result of the implementation of the new classification system in 1986. And, as the Grievor is deemed to come within payband 10, it was submitted that he was entitled to bump into a payband 10 position. It was further submitted that the emphasis in the bumping procedure is on payband and that the intention in red- circling the Grievor's rate of pay, i.e., that his income would essentially be 13 maintained, would be thwarted if, on layoff, he were limited to bumping into a payband 8 position. Although the College acknowledged that the Grievor had bumping rights based on a prescribed sequence, commencing with his classification and proceeding to his payband, and successively lower paybands, it took the position that the Grievor came within payband 8, which is how he was identified on the seniority list provided to the Union in accordance with the requirements of Article 4.1. Accordingly, although the Grievor was paid within the range of rates for payband 10 (and even within the range of payband 11), the College maintained that he was entitled to exercise seniority and bumping rights in relation to payband 8 (as bumping rights flow from an employee's classification and payband, rather than from his/her rate of pay)~ In any event, the College submitted that, by voluntarily entering into an irrevocable early leaving incentive agreement, the Grievor's bumping rights were effectively extinguished. In the result, it was submitted, the grievance is moot. For its part, the Union submitted that the execution of the early leaving incentive agreement does not preclude the Grievor from obtaining a remedy for the denial of bumping rights. In this regard, the Union submitted that (1) the Grievor's rights vested on April 10, 2003, when he received notice of layoff and confirmation that he would not be reassigned, effectively denying him the right to bump into a payband 10 position; and (2) his subsequent action in ]4 entering into an early leaving incentive agreement does not have the effect of denying him a remedy. As to the irrevocable nature of the agreement, the Union maintained that the Grievor had no choice but to submit an irrevocable offer of early retirement, as the College had refused to accept conditional offers of early retirement (these being offers in which employees reserved their collective agreement rights) from other employees. In any event, the Union never agreed that, by signing an irrevocable early leaving incentive agreement, an employee's pre-existing collective agreement rights were extinguished. However, the College pointed out that other employees submitted conditional offers of early retirement and that, although the Union was aware that the College would not accept these offers, there was no indication that the Grievor was aware of the College's position in this regard. Decision Article 15.4.3 of the collective agreement establishes a bumping procedure under which an employee who is about to be laid off is entitled to claim another position, subject to the employee's ability to perform the core duties of that position. These positions progress, in sequence, from a vacant position in the same classification, to a vacant position in the same payband, to the position held by the most junior employee in the same payband, and so on, 15 until the sequence has been exhausted. An example of the application of Article 15.4.3 is given in a letter of understanding to the collective agreement in respect of "Layoff/Recall Process - Bumping" dated September 23, 1997. It seems clear from the use of different terms in Article 15.4.3, and elsewhere throughout the collective agreement, that there is a distinction between "payband" and "classification". To cite just one example, Article 4.1 requires that employees be identified by both payband and classification on the seniority lists which are provided to the Union at four-month intervals. Moreover, Appendix E establishes that (1) classifications exist within paybands; and (2) there is a range of rates associated with each payband. However, the fact that an employee wh° occupies a position in a lower payband is being paid within the range of rates for a higher payband, as a result of a red-circling arrangement, does not mean that the employee comes within the higher payband. In fact, there is overlap in the range of rates for consecutive paybands. Moreover, where the parties intended that employees whose rates of pay were rod-circled would come within a higher payband than that attributable to the positions they occupied, they did so expressly. Accordingly, in Article 15.4.6, the parties agreed to an arrangement whereby employees whose rates of pay were rod-circled as a direct result of the implementation of the new classification system in June 1986 were deemed to come within the payband which has a maximum rate of pay closest to, but no lower than, their actual rate of pay. The effect of this arrangement, at least for some employees, is that they would be deemed to come within the higher (red-circled) payband. However, the implication of agreeing to this arrangement for employees red-circled as a result of the introduction of the new classification system is that the arrangement would not apply to employees (such as the Grievor), whose rates of pay were red- circled as a result of other circumstances. Instead, these employees would come within the payband of the position they occupied, which suggests that in this case the Grievor would come within payband 8. We find some support for this view in the decision in Re Loyalist College and Ontario Public Service Employees Union; Grievance of Sinclair, October 14, 1997 (Kruger (unreported)). In that case, the grievor, who occupied a payband 9 position, bumped into a payband 4 position, thereby displacing the incumbent whose rate of pay was red-circled at a payband 5 rate. Although the grievor understood that the position he had bumped into was a payband 5 position (as it had been identified as such on the seniority list), the board found that it was, in fact, a payband 4 position, suggesting that payband is associated with the position, and not with the incumbent's red-circled rate of pay. In conjunction with this finding, the board recommended that the payband which is identified on the seniority lists which are provided to the Union pursuant to Article 4.1 should be "the payband level for the position and not the higher rate received by a red circled incumbent of that position" (p. 7). Moreover, the board concluded that the grievor should not have displaced the incumbent, but rather, a more junior employee in payband 4 (whom the incumbent eventually bumped), which suggests that, although red-circled at the payband 5 rate of pay, for bumping purposes, the incumbent came within payband 4 (because if the incumbent had come within payband 5, under Article 15.4.3, the grievor would have been entitled to bump into his position before being required to bump a more junior employee in a lower payband). In this case, due to a reclassification, the Grievor was downgraded from a payband 10 position to a payband 8 position, although his rate of pay of pay was red-circled at the higher rate. This does not mean, however, that the Grievor came within the higher payband, as he was occupying a position in a classification (Technician B) within payband 8. And as it is an employee's payband and classification from which his seniority, and bumping, rights flow, the Grievor was not entitled to bump into a payband 10 position. In view of this finding, it is not necessary to determine whether the Grievor had the ability to perform the core duties of the outreach/marketing, payband 10, position he identified or the legal effect of having executed an early leaving incentive agreement on his claim for relief. In the result, and for the reasons set out above, the grievance is hereby dismissed. Oc.-r'oe~'~,.. DATED AT TORONTO this J3'r'~ay of A~004. Chair "John Podmore" College Nominee See Dissent Attached Union Nominee Dissent McEwan This decision reflects the most regressive of interpretations, negatively impacting both the ability of the College to search out the most highly skilled of employees while at the same time denying a potential opportunity to a senior worker. The reasoning of this Board primarily flows fi:om the "red circle provision" This letter was negotiated as a result of"the new classification Scheme" in 1987. With all due respect, other than "the formula" (which involves the calculation of the money issue) that provision is irrelevant to this grievor's case. He was in a payband 10 position until Spring of 2000 at which time the position was declared redundant. The position the grievor then assumed was as a technician, a position that is rated as a payband 8. The grievor, retained his former payband 10 and would remain so until negotiations "catches up" with the rate at which time the grievor (the person, not the pos!tion) could then be said to be properly within payband 8. The most appropriate view of this case is the employer's altemative view, which recognizes the College should start at the PB rate and entertain the grievor's skill and ability to potentially perform the position at the grievor's Payband 10. To do otherwise is to restrict itself from access to what could be a highly skilled employee, avoiding both the expense of recruitment/selection and training. It is Mr. McEwan's own particular seniority and payband that drives his individual rights under the lay-offprocedure. The payband represents a "starting point" for the scope of review. It may possibly be an indicator that the affected employee possesses the skills to retum to a higher rated position. The plain meaning of the "lay-off' provision distinguishes between classification and payband. This provision is also "individually" driven, revolving around the unique factors of an individual, qualified by the individual's ability to do the job This member, in what I believe to be in the best interest of both parties and the plain meaning of the seniority and lay-offprovisions, would have directed the search to begin at the grievor's highest and best position, his own payband.