HomeMy WebLinkAboutDenomme 91-02-10 CAAT (S) OPSEU# 90B191
IN THE MATTER OF AN ARBITRATION
BETWEEN
C~MBRIAN COLLEGE
(the College)
- AND -
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(the Union)
GRIEVANCE OF A. DENOMME
BOARD OF ARBITRATION (the Board):
A. M. Kruger - Chairman
D. Cameletti - Member
T. D. Traves - Member
APPEARANCES
For the College - S. J. Shamie and others
For the Union - Wenda Yenson and others
HEARING AT SUDBURY, ONTARIO, DECEMBER 5, 1990
Page 2
This matter arises as a result of a grievance filed by Mr.
Denomme on February 26, 1990 arising out of events that took
place in January and February of that year.
On January 10, 1990, the College informed the Union of its
decision to layoff six members of the bargaining unit. This was
confirmed in a memorandum dated January 12, 1990 from Mr. Hurley,
the Director of Human Resources, to Ms. L. Jovic, the President
of the Union Local. In that memorandum, Mr. Hurley also confirms
the time and place of the meeting to be held "in accordance with
Article 15 of the support staff Collective Agreement."
Before we proceed further, it is useful to reproduce here
those portions of Article 15 and other provisions that are
relevant to an understanding of this matter.
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 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.
Page 3
5. LAYOFF/RECALL PROCESS
15.1 General
An employee who has completed the probationary
period shall not be laid off or subject to the layoff
process, for any reason, unless and until the procedures
contained in Article 15 have been applied in sequence.
15.2 Notice to Union
When the College contemplates any action that may
result in an employee being subject to the layoff process,
the College shall give two (2) weeks' written notification
to the Local Union President prior to written notice being
provided to the employees affected. At the same time,
the College shall provide the Local Union with the data
used by the College in formulating its tentative
determination to undertake the action contemplated.
15.3 Committee
15.3.1 Size of Committee
Within two (2) working days of the giving of such
notice, there shall be constituted a committee of up to
three (3) persons appointed by the Local Union and
up to three (3) persons appointed by the College.
15.3.2 Meetings
Members assigned to discussions shall not suffer
any loss of pay during regular working hours when
required to leave their duties temporarily for the
purpose of attendance at meetings. The Union
acknowledges, however, that the employees have
their regular duties to perform and will not absent
themselves without first obtaining permission from
their immediate supervisor, and reporting to their
immediate supervisor upon returning to their regular
duties. In keeping with this understanding, permis-
sion to attend meetings shall not be unreasonably
withheld consistent with College operating require-
ments.
15.3.3 Confidentiality
The Local Union, the College and the Committee
shall maintain confidentiality with respect to any
information received and the deliberations of the
Committee until mutually agreed between the
College and the Local Union. Nothing herein shall
prevent the parties from obtaining advice, on a
confidential basis, as required.
Page 4
15.3.4 Recommendations
It shall be the duty of the Committee to consider the
matter and to make recommendations to the
President of the College with respect to any or all of
the alternatives listed below which might be resorted
to in order to prevent or minimize the dislocation of
employees:
1. Potential creation of vacancies that might be filled
by affected employees;
2. Conversion of part-time positions and/or dis-
placement of non-bargaining unit employees;
3. The utilization of other means, such as normal
retirements, voluntary leaves or transfers in order
to prevent or minimize the effects of the action
contemplated;
4. The improvement of employment potential for
employees affected by the provision of training or
retraining programs and job counselling;
5. Investigation of potential alternative job opportuni-
ties that might exist for employees affected both
within and outside the College, such as
comparable employment opportunities.
It will be the duty of the Committee to make
recommendations to the President of the College
within ten (10) working days of the establishment of
the Committee. Where the Committee is unable to
agree on any recommendations, the members
appointed by the Union and the members appointed
by the College may make separate recommenda-
tions. Where separate recommendations are to be
delivered they will be exchanged between the
appointees prior to delivery.
Page 5
In addition there is Article 15.4 which outlines layoff
procedures including 15.4.3. which is headed Bumping Procedures.
There is no need to reproduce these provisions here but they are
relevant.
Altogether six meetings of the Committee established under
Article 15.3.1. were held to consider alternatives to layoffs of
the six employees. The Committee reached agreement on how to
accommodate three of these employees without resorting to layoff.
No agreement was reached in the other cases, including Mr.
Denomme and separate recommendations were forwarded to the
President for these employees.
In the case of Mr. Denomme, the College representatives on
the Committee recommended he bumps Mr. E. Falbo who in turn would
bump B. Portes who would bump E. Andrighetti who would be laid
off. This was identical to the College's proposal at the
Committee's first meeting on January 15, 1990.
THE UNION'S CASE
The Union's position is that Article 15.3.4. require the
Committee "to make recommendations on any or all" of the five
alternatives listed in that prevision. Bumping is not one of
these five listed alternatives and is a measure to be considered
only after a proper report has been submitted to the President.
In the Union's opinion the report of the College represen-
tatives to the President did not meet the requirements of Article
15.3.4. in dealing with Mr. Denomme. It fails to comment on any
of the five alternatives listed in Article 15.3.4. and instead
Page 6
proceeds to make a recommendation based on Article 15.4.3.
Article 15.1 is clear in its requirement that no one should be
subject to the layoff process "until the procedures contained in
Article 15 have been applied in sequence (emphasis added). What
the College members of the Committee had done, the Union argued,
was to omit Article 15.3.4. and jump to apply Article 15.4.3. in
violation of the both Articles 15.3.4. and 15.1.
Furthermore, the Union argues that a particular proposal
its representations made at the Committee meeting on February 6
was never really considered by College representatives. That
proposal was to appoint Mr. Denomme to fill a vacant SSOD
position. The College representatives came to that meeting with
their recommendations to the President and tabled them. These
recommendations without change went to the President. The grievor
seeks retroactive pay between February 6 and the date of the
Board's Award because the SSOD position pays much more than
either the position he has held in this period or the position he
formerly held. He does not ask the Board to place him in the SSOD
position.
THE COLLEGE'S CASE
The College denies any violation of Article 15. Union
witnesses concede that the College properly notified the Union as
required by Article 15.2 and that the composition and the agendas
of the meetings held complied with Article 15.3.
It is the College's submission that all proposals made by
the Union concerning Mr. Denomme at these meetings were
Page 7
considered and rejected for good reason. While it is true that
the College discussed a bumping alternative for Mr. Denomme at
these meetings, the minutes disclose that the Union also
discussed an alternative bumping arrangement for him. Clearly
both sides saw the discussion of bumping alternatives as
legitimate under Article 15.3.4.
As for the Committee's report to the President, in the case
of Mr. Denomme there were two reports. The Union report suggested
alternatives listed in 15.3.4. The College representatives in
proposing bumping rejected these Union proposals. The President,
therefore, had a report that dealt with the matters enumerated in
Article 15.3.4.
Furtheremore, in the College's view bumping is an alter-
native that falls under items 3 and 5 of this article. Even the
Union's view of 15.3.4. requires that only one of the five listed
alternatives be reported on by the Committee to the President.
As for the SSOD position, the official minutes do not
support the Union's assertion that this was raised as an alter-
native possibility for the grievor at the February 6 meeting.
Even if the Union's version of that meeting were to be accepted,
the SSOD position was not appropriate for Mr. Dennome. First, it
would have meant bumping him up to a job that was classified
higher than the position he had held and that paid much more than
he had been earning. Had this been done, other employees quite
rightly could have grieved. Furthermore, Mr. Denomme was not
capable of filling the $SOD position without a lot of training.
Page 8
He lacked the formal education requirements for that job. In a
competition held in late February 1990, for this position Mr.
Denomme scored the lowest of the seven applicants and well below
the minimum score required for the position. Mr. Denomme himself
testified that he was not surprised to learn that his score was
below the minimum and conceded he would have required training to
perform the job.
Counsel for the College referred to the testimony of Mr.
Hurley before this Board. He told the Board that he had sent the
report of the College representatives to the President and had
included the minutes of all six meetings with that report. He
argued that the President had the full benefit of the discussion
that took place around various alternatives mentioned in Article
15.3.4. The Union's position was that this provision was intended
to provide the President with the advice of the Committee on one
or more of these alternatives. The information provided did in
fact give him that advice.
THE AWARD
The Board concludes that the provisions of Article 15 were
complied with and that there is no basis for the complaint. There
was a full discussion of at least one of the alternatives listed
in Article 15.3.4. and even the Union concedes that is all that
is required. The fact that the report of the College represen-
tatives does not say explicitly that a particular alternative was
considered and rejected is irrelevant. The President from both
the report of the Union representatives and the minutes knew what
Page 9
had been considered and the positions of the two groups on the
co~ittee on these matters.
As for the SSOD position, we have two conflicting views of'
the discussion at the February's meeting. In any case, given the
fact that'what was involved was a significant promotion for the
grievor and a move to a job for which he was not qualified
without extensive training, this alternative, which the Union did
raise in its report, was not viable. Furthermore, Mr. Hurley
testified that at the time of that meeting, the SSOD position was
not open but was a vacancy not to be filled because of a job
freeze at the College.
For all these reasons, the grievance is dismissed.
" DATED at Toronto, Ontario this /Jday of , 1991.
A. M. Kruger
I concur/I dissent
D. Cameletti
'.t ~ ~cu~/I dissent
T. D. Traves
DISSENT
With respect, I must dissent in part from the majority in this decision. In
my view, there are two issues to be canvassed: did the College fairly carry
out its obligations under Article 15.3.4 of the Layoff Process? And, should
Mr. Denomme be given compensation for not being appdinted to the SSOD
position? I think the answers to these two questions are separable.
After the College proposed in the first Joint Committee meeting that Mr.
Denomme should bump Mr. Fabio and become an SSOD, the Union put several other
alternatives before the College about how to treat his case. These options
emerged over meetings 2-5, and although it is questionable if the College
seriously assessed these options as viable propositions, it is certainly
clear that they fully discussed them with the Union. In a technical sense,
if not, arguably, in the full spirit of the Agreement, the College complied
with its obligations to that point. After the fifth meeting on 31 January
1991, the College drafted its recommendations which it presented at the sixth
and final meeting on 6 February. At this meeting the Union proposed a new
option for Mr. Denomme, the SSOD position. I am satisfied that the College
did not consider this option seriously at all within the terms of Article
15.3.4 and that in so doing they violated the Contract. Two issues must be
considered here: how can we conclude that the ~ollege did not consider this
option seriously and why did that constitute a breach of the Collective
Agreement?
By its own testimony, the College did not regard the question of putting
Denomme into the SSOD position as a serious proposition. Mr. Hurly testified
that he didn't think the Union even brought up the proposal and his minutes
of the meeting reflect this understanding. On this point, however, I am
inclined to follow the Union's version of the events. Ms. Veinott's
testimony and minutes suggest clearly that the Union presented a serious
proposal that Mr. Denomme be considered for the post. If we are to accept
Mr. Hurly's position that the Union brought up the SSOD position as a unique
item unrelated to Denomme's situation, the question arises why they would
have done so since the Committee was not the forum to bring up unrelated
outstanding business between the Union and the College. It would make no
sense for the Union to bring the issue forward merely in the abstract,
unrelated to the context and purpose of the meeting, which was, after all, to
find alternative positions for displaced employees. So, I believe it is
clear that the Union brought a serious proposal to the Committee. It is also
seems clear that the College did not seriously consider the issue. As Mr.
Hurly and Ms. Orlak indicated, the College's commitment to credentialism as a
defining element of staff development and hiring policy meant they would not
even consider Mr. Denomme in this context. 'Mr. Hurly also believed that even
though the Contract is silent on the issue, the Committee was precluded from
recommending that a displaced employee be placed into a higher Payband
position under the terms of Article 15.3.4. While this might be an unusual
recommendation, to be sure, it seems arguable to me that it was not
absolutely contrary to the terms of the contract and might in certain
circumstances, such as those we faced in this instance, represent a humane
and efficient solution to a prospective layoff situation. The point I am
making here is not that they should have agreed to the Union's proposal, but
that they were obliged to consider it seriously, which they did not.
Even if one agrees with this position, does this constitute a violation of
the Contract? Counsel for the College argued that the Layoff Process has a
self-correcting mechanism insofar as the Union is allowed to submit
alternative and contrary recommendations to the College's president about the
disposition of redundant employees; as a result, all appropriate information
comes to the president's attention one way or the other. This is true only
in a marrow sense, however. In a situation like this, it makes a world of
difference if a recommendation comes forward as the JOINT conclusion of
management and the Union, or if it comes forward as a contested proposal.
The president is free, of course, to take a position independent of the
College recommendations, as he did here in another case, but it stands to
reason that he would be more heavily influenced by a Committee recommendation
than a contested Union proposal. And in this instance, that possibility was
closed when the College members of the Committee refused even to consider one
of the serious options proposed by the Union, namely the $SOD proposal put
forward at the 6 February meeting, the day after the College representatives
had drafted their ultimate recommendations.
For these reasons, then, I would argue that we should have found that the
College violated the terms of Article 15.3.4 and issued the declaratory
statement requested by the Union that they ought to do better in future.
Given the Union's overriding concerns about the process to be followed in the
event of future layoffs, I believe that such a declaration would help
ameliorate the differences that have developed between the parties on this
issue.
The second issue in this case is should Mr. Denomme get the SSOD position or
financial compensation in lieu of it? This is a more complicated problem~
Clearly, the College did not consider him for this position under the terms
of Article 15.3.4. If they had, would he have been deemed suitable and would
that have been a suitable resolution of the impact of the layoff on him?
Counsel for the College argued that the results of the subsequent SSOD
competition prove he was unsuitable. I think this position is irrelevant
insofar as the issue is not his competitive standing, but rather his capacity
with training and development to grow into the position. Article 15.3.4
contemplates such a possibility. Did he have this capacity, and if he was
carefully evaluated for such an appointment during the Committee's
deliberations would they have reached a positive conclusion? Clearly, this
is simply a judgement call. I would have accepted the Union's argument in
Mr. Denomme's favour. At the same time, however, I am mindful of the point
made in the majority award in this case that a decision to leap-frog Mr.
Denomme over many more senior colleagues in the job classification
arrangements within the College would have constituted a significant
limitation on their right to be considered for advancement to higher-ranked
positions, a right that the Union has a considerable interest in preserving.
For this reason, therefore, I am only registering a partial dissent to the
findings of the majority award.
Tom Traves, Union Nominee