HomeMy WebLinkAboutWhyte 88-11-14Conceming an arbitration
Between:
Conestoga College
and
Ontario Public Service Employees Union
Grievance of Whyte, lay-off, 88B594
Board of Arbitration
J. W. Samuels, Chairman
R. J. Gallivan, College Nominee
J. D. McManus, Union Nominee
For the Parties
Union
P. A. Chapman, Counsel
P. Whyte, Grievor
K. Jennings, Local President
College
R. Drmaj, Counsel
J. Podmore, Director, Human Resources
P. Carter, Vice-President Academic
G. McGregor, Dean of Business
S. Kalbfleisch, Dean of Applied Arts and Preparatory'Studies
Heating in Kitchener, November 1, 1988
1
The grievor claims that she was "unjustly and improperly and
tmfairly laid off from my position". She was a technologist in the Design-
Graphic and Advertising Program. She had been hired in August 1987 to
assist the three teaching masters in the program. Her work involved
management of the inventory and equipment (maintenance, signing it out),
and giving demonstrations to students of the use of this inventory and
equipment. Most of the work she did had been done by the teaching
masters before her hire.
In June 1988, the College decided that it could no longer afford to
have three teaching masters and a technologist. The grievor was laid off,
and the work she had been doing went back to the teaching masters, assisted
by a part-time student monitor.
We have not yet heard all the evidence in this matter, but we decided
it was desirable to hear legal argument concerning the grievor's rights
under the collective agreement, assuming that all the facts alleged by the
Union could be proved, and to make a preliminary ruling.
Essentially, the Union's case is that the grievor and the bargaining
unit had some proprietary interest in the bundle of duties which the grievor
was doing, and this Work could not be divided up and returned to the
teaching masters and the student monitor.
The problem with this argument is that there is absolutely nothing in
the collective agreement which gives the grievor or the Union such rights.
Article 3.1 sets out management's rights. These include the right "to
manage the College, ..... to direct its personnel, .... to determine complement,
organization, .... number, location and classification of personnel required
from time to time". In short, management can determine what duties will
be performed by whom, subject to the Union's right to grieve the
classification assigned to the person doing the bundle of duties (including
whether or not the employee is put in the proper bargaining unit), and to
grieve if the workload is too heavy, or if some other provision of the
2
collective agreement is violated. The essential point is that the collective
agreement does not limit management concerning the way in which it
bundles duties in job positions. However, once a position is created, the
collective agreement governs the classification process, the wages paid,
some of the conditions of work and so on.
Under the collective agreement for academic employees, the College
and the Union have agreed to a class definition for teaching masters. In
this definition, we read that, in addition to teaching duties, the teaching
master:
...may from time to time, be called upon to
contribute to other areas ancillary to the
TEACHING MASTER role, such as ...... control of
supplies and equipment.
In other words, the duties transferred back to the teaching masters from
the grievor's position are duties which the parties contemplate as being
performed from time to time by teaching masters.
Upon her lay-off, the grievor's rights flow from Article 15.4.1,
which sets out the lay-off procedure, including bumping rights. There is
no allegation that these rights have been violated.
3
In sum, even if the Union proved all the facts on which it relies,
these facts would not disclose any violation of the grievor's fights under
the collective agreement. The Union seeks to prove that the grievor had
some proprietary right to the bundle of duties which the grievor was
performing, and the collective agreement does not give such a right.
For these reasons, the grievance is dismissed. There is no need for
us to reconvene to hear the evidence of the parties.
Done at London, Ontario, this t~/~ day of A/0~.,.,..~ , 1988.
R. J. Galkvan, College Nominee
J. D. McManus, Union Nominee