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HomeMy WebLinkAboutCharlton, Union 89-04-27IN THE MATTER OF AN ARBITRATION BETWEEN: CONESTOGA COLLEGE OF APPLIED ARTS AND TECHNOLOGY AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND IN THE MATTER OF A GRIEVANCE OF P. CHARLTON/UNION BOARD OF ARBITRATION: Kevin M. Burkett - Chairman J. N. Tascona - College Nominee Joe Herbert - Union Nominee APPEARANCES FOR THE Richard Drmaj - Counsel COLLEGE: John Podmore - Director, Human Resource~ Debra Croft - Human Resources Officer Grant Glennie - Chair, Woodworking Centre of Ontario APPEARANCES FOR THE Howard Law - Grievance Officer UNION: Kerry Gennings - President, Local 238 Peter Charlton - Grievor A hearing in this matter was held in Kitchener, Ontario on Friday, February 24, 1989 AWARD 1. We have before us both an individual grievance and a union policy grievance arising from the same factual situation. It is claimed in both grievances that the college filled a Technician 'B' vacancy by hiring from outside in June, 1988 without posting the position as required under article 17.1 of the collective agreement. The college responds that the vacancy was posted in October, 1987 and because it could not be filled internally it was free to seek external candidates. This dispute centres on the fact that the posting in October, 1987 stipulated that the hours of work would be 35 hours per week while the position was filled from outside the bargaining unit in June, 1988 as a 37½ hours per week posi'~ion. The union argues that a 37½ hours per week position is different than a 35 hours per week position and requires a separate posting under article 17.1 of the collective agreement. There is no dispute with respect to our authority to hear and determine this matter. 2. Mr. Heinz Henkel, the current incumbent, was served with notice of the time and place of hearing. He appeared at the hearing, was advised of his rights, and given the op- portunity to participate fully in the hearing. 3. Article 17 of the collective agreement provides: "ARTICLE 17. - JOB POSTINGS/PROMOTIONS 17.1 - Notices Notice shall be posted of a vacancy in a classifica- tion covered by the Agreement for a period of five (5) days at each Campus and no outside advertising for the position shall be conducted and no employee shall be hired from outside the College until the position has been posted for the said five (5) days. Such notice shall contain the classification, payband, hourly rate range, current Campus location, current hours of work, current shift(s), and an outline of the basic qualifications. Such notice shall be posted in appropriate locations accessible to employees. For the purposes of this Section, reference to days shall exclude Saturdays, Sundays, and statutory holidays. Copies of all posted vacancies shall be sent to the Local Union President at the time of distribution for posting." "17.1.1 - Consideration - Bargaining Unit Employees When a vacancy in the bargaining unit occurs and employees within the h~rgaining 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. Notwithstanding the foregoing, where there is no increase in the complement of bargaining unit employees in the Department within which the vacancy arose, the College may forego posting and fill such vacancy by appointing a qualified bargaining unit applicant from the Department. " 4. The parties agreed on the facts in this matter as follows: - The college recently opened a state of the art wood products department housing some 50 to 60 "high tech" machines. The college required an individual to maintain these machines and, therefore, posted for a wood products technologist (Technologist B). The posting ran to November 2, 1987. The posting showed the hours of work as "35 hours per week". There were no qualified internal applicants. The college then attempted to hire from outside but again there were no qualified applicants. - The college then decided to post for a wood products technician (technician 'B') in the hope of attracting an individual who could, over time, be upgraded to the wood products technologist position. This posting ran to February 5, 1988 and, as with the predecessor posting, the hours of work were shown as "35 hours per week". The college was unsuccessful in filling this position. - The union had been informed by the college at a Support Staff Agreement Committee meeting on February 15, 1988 that the technologist 'B' vacancy could not be filled and would be posted at the technician 'B' level. - The college hired Mr. Heinz Henkel in June, 1988 into the Technologist 'B' position. Mr. Henkel had been servicing the wood products department machinery as an outside service person employed by the supplier. He was hired to work 37½ hours per week. - The grievor, who is employed at the technician 'C' level working 37½ hours per week, did not apply for either of the posted vacancies. He did not apply because he did not want to take a cut in pay as would have been the case if he moved from a 37½ hour per week technician 'C' position to a 35 hour per week technologist 'B' posi- tion. He had file~ an unrelated grievance at the time of the initial posting seeking an upgrade to a technologist 'B' position and was not told until January, 1988 that the grievance was denied by the college. 5. The submissions of the parties are concise. The union argues that article 17.1 sets out the characteristics of a job vacancy that must be specified in a job posting. The union submits that the hours of work, as one of these characteristics, must be specified and that where the college posts a vacancy at 35 hours per week and subsequently fills the position externally at 37½ hours per week the posting must be considered as null and void and the position reposted at 37½ hours per week so as internal candidates are given the opportunity to bid as required under article 17. The union relies on the statements made to it by the college as recorded in the Support Staff Agreement Committee meeting of February 15, 1988 as evidence that the initial posting for the technologist 'B' position was "dead". The union asks us to uphold the grievance and direct that the position be reposted and that only those who were eligible to apply at the time be allowed to apply. 6. The college submits that it satisfied article 17.1 with the initial posting and that having failed to attract any qualified internal candidates it was entitled to hire from outside. The college argues that because it has the right to alter the hours of work at any time under article 6 it is understood that the hours specified on any job posting are but a general guideline such that a subsequent change in the hours of work cannot be found to vitiate the posting pro- cedure and necessitate a reposting. The college observes that the grievor made no attempt to ascertain if the hours could be increased to 37½ when the position was initially posted at 35 hours per week. The college asks us to find that the position was properly posted in October, 1987; that the grievor had an opportunity to apply and did not; and that failing an application by any qualified internal candidate it was free to hire from outside. 7. We are persuaded by the submissions of the union. The purpose of article 17.1 is to provide bargaining unit employees with an opportunity to fill vacant positions before these positions are filled from outside the bargaining unit. The parties have stipulated the information that must be contained in the job posting in order to further this purpose. The parties have agreed that in deciding whether or not to apply for a position bargaining unit employees are entitled to know the pay band, the hourly wage range, the Campus location, the current hours of work, the current shifts, and the basic qualifications. These are the factors that are usually con- sidered by an employee in deciding whether or not to seek a position. The sipulated hours of work inform a prospective applicant where the balance has been struck between maximizing leisure time and maximizing earnings. It is a factor that might, in and of itself, cause an individual to either apply or not apply. Indeed, in this case the grievor did not apply because the reduced hours of work would have resulted in a reduced weekly wage. 8. We have a great deal of difficulty accepting that the employer can hire from outside on the basis of hours of work different than those contained in the notice to bargaining unit employees. Apart altogether from any question with respect to the duration of a posting for purposes of filling the position from outside the bargaining unit there is a basic unfairness in filling a position from outside the bargaining unit on the basis of hours of work different than those specified in the internal job posting. This unfairness runs counter to the clear purpose of the articles providing bargaining unit employees with the first opportunity to fill job vacancies and, in our view, is contrary to the express requirement to stipulate the hours of work in the posting. The effect of posting either lesser or greater hours than those which are subsequently made to apply to an outside hire may, as in this case, cause qualified internal applicants not to apply. The clause contemplates that the factors stipulated in the not~ce shall be incorporated into the job. Where this is not the case and the college hires from outside into a position whose identifying characteristics are different than those described in the posting it must be found that the position that has been filled is a different position than the one that was posted such that the new position must be posted under article 17.1 in order to afford all interested bargaining unit employees the opportunity to apply. 9. Having regard to the foregoing we hereby find that the college breached article 17.1 of the collective agreement when it filled the 37½ hours per week technologist 'B' position without having first posted that position. Accordingly, we hereby direct the college to post the position in accord with article 17.1. All employees in the employ of the college prior to the date as of which the college hired from outside to fill this position are eligible to apply. 10. We will remain seized in the event of any difficulty with the implementation of our award. DATED at Toronto the 27th day of April, 1~9. C~airman I dissent 'J. N. Tascona" College Nominee concur "Joe Herbert" Union Nominee DISSENT By JOSEPH N. TASCONA College Nominee Re: Conestoga College and OPSEU Grievance of P. Charlton/Union With respect to paragraph 8, I would refer you to your comments in the fourth sentence of this paragraph in which you state that "the effect of posting either lesser or greater hours than those which are subsequently made to apply to an outside hire may, as in this case, cause qualified internal applicants not to apply". It should be noted that in the latter portion of the sixth sentence in paragraph 8 you state that the "new position must be posted under article 17.1 in order to afford all interested bargaining unit employees the opportunity to apply". I would suggest that the effect of different hours than those posted would be on interested internal applicants only. I would also submit that there is no evidence to make a determination whether the grievor is qualified for the position in question. It is clear that the College posted the Technologist "B" vacancy in accordance with article 17.1 of the collective agreement. The College went further and tried to fill the Technologist "B" vacancy by reducing the qualifications to a Technician "B" level and posted in accordance with article 17.1 of the collective agreement. It was not until the College exhausted all methods of filling the position in the Wood Products Department from within the bargaining unit that it decided to hire from the outside. I would suggest that the issue to be determined is whether article 17.1 limits the College's discretion with respect to filling a position from the outside. Internal applicants were given a full opportunity to apply for the position, including the grievor, and no applications were forthcoming. There was no evidence of bad faith, discrimination or a defect in the initial posting procedure under article 17.1. The College in exercising its rights under the collective agreement, after having complied with the internal posting procedure, filled the position through an outside applicant. I have difficulty with your determination that the College filled a different position from the one that was initially posted. A position forms part of a classification and there are basic qualifications necessary to perform a position. Each position has working conditions which consist of the hourly rate range, current campus location and current hours of work. I would agree that there would be an unfairness if the College were to post for a Technician "B" position and fill it externally as a Technologist "B" position. In such circumstances there would definitely be a different position. However, in our situation the College has in its discretion determined that the position requires an individual to work 37½ hours and not 35 hours as posted. It is a question of degree when one considers whether a difference in the hours of work is to such an extent that there is a new position. It is not reasonable to conclude that different hours of work of such a magnitude should preclude the College from filling a position through an outside hire. There is no evidence of bad faith or discrimination on the College in exercising their management rights. The College has the right to alter the hours of work at any time under article 6 of the collective agreement. Further, by the use of such terminology as "current hours of work" the parties have agreed that the hours specified in the job posting are but a general guideline and that a subsequent change in the hours of work should not be found to vitiate the posting procedure and necessitate a reposting. It should also be noted that there is no collective agreement provision expressly restricting management's right to fill a position from the outside once there has been compliance with collective agreement's posting procedure. I am in agreement that the purpose of article 17.1 is to provide bargaining unit employees with the opportunity to fill vacant positions before these positions are filled from outside the bargainin~ unit. It is my opinion that the College has complied with article 17.1 and express language is required to restrict management to the criteria set out in article 17.1 in filling a position from the outsid, The parties have not contemplated restricting the College when one considers the language used with respect to the working conditions for a position. Thus, it is my opinion that if the grievance is upheld then a general guideline with respect to hours of work would be transformed into an express requirement resulting in the College being limited to the posting criterion on outside hirings. Dated at Toronto on April 18, 1989. "Joseph N. Tascona" College Nominee