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HomeMy WebLinkAboutFord 93-09-22 (the "College") ONTARIO PUBLIC SERVICE EMPLOYEES' UNION (the "Union") GRIEVANCE RE BARBARA FORD BOARD OF ARBITRATION: Michel G. Picher - Chairperson Bob Gallivan - Employer Nominee Jon McManus - Union Nominee APPEARING FOR THE UNION: Michael McFadden - Counsel APPEARING FOR THE COLLEGE: G.F. Luborsky Counsel I.L. Hobbs Personnel Officer G. White-Malloy Personnel Officer INTERVENOR: Margaret Buchanan Fanshawe, School of Technology Hearings in this matter were held in London on May 18, 1993 and in Toronto on June 28, 1993. AWARD This arbitration concerns two grievances respecting the bumping rights of an employee in the support staff of the College. The first grievance alleges that the grievor, Ms. Barbara Ford, was wrongfully denied the right to bump into the position of Project Field Coordinator when her position was declared redundant. The second grievance asserts a violation of the collective agreement by virtue of the fact that the grievor was compelled by the College to take a nine-month position, after she was laid off from a twelve-month position. The Union asserts that Ms. Ford should be allowed to take a twelve-month position, as a clerk in the Registrar's office, a position which is held by a junior employee. The College submits that there has been no violation of the collective agreement in either case. The facts material to the grievances are not in substantial dispute. Ms. Ford was first hired by the College on August 14, 1989. In May of 1991 Ms. Ford was employed as a technologist in the mechanical technology division of the College. Her principal duties and responsibilities in that job involved designing and testing machining laboratory and learning materials and advising students in the laboratory in respect of machining problems. The position in question was in payband 10. On May 16, Ms. Ford was given written notice that she would be laid off effective July 12, 1991. Ms. Ford was then directed to the bumping procedure. It is found in article 15 of the collective agreement which provides, in part, as follows: -2- 15.4 Layoff Procedure When a College decides that circumstances require a reduction in personnel in any position within a classification the following provisions shall apply: 15.4.1 Probationary Employees Probationary employees performing the work in question shall be released. 15.4.2 Post Secondary Employees Where the qualifications of employees in the affected position who have completed their probationary period are relatively equal as to that position, their layoff shall be on the basis of seniority. 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 which he/she is fully qualified to perform without training. If there is no such position then; to the position held by the most junior employee in the payband with the next highest maximum rate to the employee's own payband which he/she is fully qualified to perform without training provided he/she has greater seniority; -3- The evidence establishes that during the course of examining positions into which she might bump, the grievor identified the pOsition of Project Field Coordinator, a position supervised by the Chairperson, Community Access and Development. The position, which is in payband 9, is described, in part, as follows on the position description form: Under general supervision of the Chairperson, Community Access & Development, the incumbent will work with the various agencies, educational institutions and employers to promote apprenticeship to women, and provide support to women with an interest in non-traditional, skilled occupations. In addition, the following duties and responsibilities are listed in the position description form: 1. Recruit women into apprenticeship programs from the community. 2. Identify and outreach to area employers and Unions to secure their participation in hiring female apprentices. 3. Develop communications and marketing strategies. 4. Develop mechanisms to match potential apprentices with employers. 5. Liaise with the Ministry of Skills Development Field (sic) services. 6. Identify other sources of funding to continue the project after the demonstration period. Ms. Helen Adams gave evidence with respect to the evolution of the position of Project Field Coordinator. Although she is no longer with the College, she was the chair of the Community Access and Development Program in April of 1990 and supervised the -4- position until June of 1991. She relates that the position was initially established through funding from the Ministry of Skills Development of Ontario, in 1989. The initial funding for the position was short term, although it ultimately became extended. In May of 1990 a competition for the position was conducted, with Ms. Margaret Buchanan being the successful candidate. It is common ground that the grievor did not compete in that job posting. Ms. Adams relates that the position is designed to be filled by a person with excellent written and verbal communication skills, and good organizational skills. The incumbent must be capable of making presentations, be sensitive to women's issues, and have a working knowledge of the relationship between those issues and pertinent legislation in the fields of human rights, pay equity and employment equity. Ms. Adams relates that the person in the position must also have an understanding of the workings of the Ministry of Skills Development, as well as client groups within the community. The evidence before the Board establishes, beyond doubt, that Ms. Ford has achieved notable success in becoming qualified as a woman in a non-traditional field. She successfully completed the machinist's program of Fanshawe College in 1982. After working as a machinist in private industry for a year, she returned to Fanshawe and did a graduate computerized numerical control programming course which, at the risk of oversimplification, involves computer-aided design and computer-aided manufacturing in the field of automated machining. During the spring of 1984 she also worked as a lab assistant to machining -5- students at Fanshawe who were learning computer applications. From August of 1984 through August of 1989 Ms. Ford worked as a designer/programmer on extrusion dies for Alcan Extrusion of Canada in Markham, Ontario. It appears that part of her responsibilities during that period involved liaison with three community colleges, to promote the training and recruitment of women as machinists. According to her evidence her duties involved visits to George Brown College, Seneca College and Durham College, perhaps twice a year, to help identify women who might be eligible and interested in pursuing careers as machinists at Alcan in Markham. Ms. Ford also relates that during the period of her work at Alcan she developed some experience in marketing, in that she was responsible for promoting her products with extrusion plants that would utilize dies which she designed. Ms. Ford was interviewed by Ms. Adams, as well as by personnel officer G. White-Mall6y, with respect to her intention to bump into the position of Project Field Coordinator, on June 12, 1991. On June 19, 1991 Ms. Ford was advised that she was found not qualified to perform, without training, the position of Project Field Coordinator. That decision gave rise to the first grievance before this Board. The College's decision was explained through the evidence of Ms. Adams. Her evidence establishes that Ms. Ford was interviewed by Ms. Adams and Ms. White-Malloy over a period of approximately an hour. She was asked the same questions which are put to applicants for a vacancy in the position under consideration. The questions put and notes taken by each of the interviewers on answers given by Ms. Ford were placed in evidence -6- before us. While Ms. Adams acknowledges that the grievor has experience in a non- traditional employment field, she maintains that Ms. Ford did not display the qualifications necessary to assume the position without training. 'In this regard she stressed that the College requires a person with proven experience in marketing, a knowledge of the legislation and regulations which govern trades' apprenticeship, and a knowledge of funding sources and practices. She stresses that the incumbent in the position must also have a thorough familiarity with community organizations interested in the advancement of employment options for women in non-traditional trades, and a detailed understanding of the workings of the apprenticeship branch of the Ministry of Skills Development. Ms. Adams states that in a number of these areas Ms. Ford's responses during the course of the interview indicated a lack of knowledge and experience that could not be overcome without training. For example, she relates that Ms. Ford did not know the workings of the apprenticeship system. Specifically, in answer to her question about what she knew about the apprenticeship system in Ontario, Ms. Ford stated she believed that standards were set by the government but did not really know how. The notes of the meeting indicate that, according to the answers provided by Ms. Ford, she had no real knowledge of the workings or location of the apprenticeship branch of the Ministry. When questioned about existing community groups dedicated to helping women become aware of non-traditional occupations, she again did not have any spedfic knowledge of community resources or bodies in the area. Additional, when asked with respect to the extent of her -7- knowledge of training services and funding provided by both provincial and federal governments, she responded, "Not a lot". Counsel for the Union submits that the grievor's background does meet the requirements for the position of Project Field Coordinator. He stresses that the training/experience/skill requirements disclosed on page 006 of the position description form make no reference to experience or training in marketing. In this regard, the only indication with respect to academic or formalized training is post-secondary training, and where the form deals with particular skills and abilities, the only reference is to the holding of a valid Ontario driver's licence. The same page of the form describes the work experience required to perform the job as "two years' experience dealing with the promotion of women's issues. Exposure to non-traditional occupations". Counsel submits that Ms. Ford meets the requirements and qualifications of the positioni'He submits that in considering whether the grievor is fully qualified to perform the work without training, the Board must bear in mind the provisions of article 15.4.7 of the collective agreement which are as follows: 15.4.7 Familiarization Period Where the term "fully qualified to perform the work without training" is used in this Article, it is understood that the College shall provide the employees selected with a reasonable period of familiarization, where necessary. -8- Counsel for the Union argues that the concept of a reasonable period of familiarization must vary with the complexity of the job in question. He submits that while, in the case at hand, there might be a relatively extensive period of orientation during which the grievor would acquire a working knowledge of governmental and non-governmental agencies, as well as the legislative and regulatory framework which govern the position, she could, with such familiarization, be able to undertake the duties and responsibilities of the job. Counsel argues that familiarization of that kind would not constitute "training" within the meaning of article 15.4.3 of the collective agreement. In other words, he argues that even if there must be period of time during which Ms. Ford becomes familiar with the government offices and officers with whom she must deal, as well as the workings of apprenticeship programs and the identity and workings of community groups, that is a matter of familiarization, and not a matter of training. Counsel for the College takes a different view. He submits that article 15.4.3 contemplates an employee being able to step into a position and discharge its functions without being required to gain any new body of working knowledge. He stresses that in a bumping and layoff situation, as contrasted with a job posting to fill a vacancy, the College should not be put to the dislocation and burden of placing an employee into a position which requires him or her to undergo a substantial degree of learning. In counsel's view, while the College is under an obligation, pursuant to article 15.4.7 to allow a reasonable period of familiarization, it goes beyond that concept to suggest, as the Union does, that -9- familiarization might extend over a period of many weeks, or months, while an employee effectively learns the basic elements of the job. We turn to consider the merits of the parties' submissions with respect to the first grievance. It is common ground that the first issue is whether or not Ms. Ford is qualified, without training, to assume the duties and responsibilities of the position of project field coordinator. Intrinsic to that determination is whether she could perform the job without training, but subject to a period of familiarization. A number of prior arbitration awards have considered the distinction between training and familiarization. Among them is a decision between St. Clair College and the Union, in the grievance of Ms. Shirley Lucier, an unreported award of a board of arbitration chaired by P.C. Picher, dated June 13, 1989. The review of the cases in that award, which we find helpful, is as follows: In Re Kelsey Hayes Canada Ltd. and UAW, Local 240 (1972), 1 L.A.C. (2d) 54 (P.C. Weiler), the arbitrator highlighted some elements of the distinction between training and a familiarization period. At p.58, he said: ... If arbitrators held that immediate expertise in a new job was needed to satisfy the requirement of "ability" then seniority provisions in cases of promotions would be of little real value. Hence, recent cases have distinguished between ability in the sense of existing skills and competence and a familiarization period which any employee must have to learn the details and environment in his new job .... The record in this case leaves me in real doubt about whether Montroy simply needed - 10 - a short familiarization period in the production clerk job or whether she needed time to develop significant new abilities which had not been required of her in the pay roll department. [emphasis added] In Re United Electrical, Radio and Machine Workers and Pape-Hersey Tubes Ltd., 3 L.A.C. 1121 (Cross), the arbitrator at p.1125 referred to the line between familiarization and training: In conclusion, it may not be amiss to point out that, even where the Company is required to give an employee a trial under Section 38, such a trial is for the purpose of enabling the employee to demonstrate "that his ability is satisfactory". The Company is under no obligation to train the employee to do the job .... A line has to be drawn somewhere between the case where an employee possesses the basic qualifications for the job and merely has to acquire within a relatively short space of time the knowledge and proficiency necessary to enable him to apply those qualifications to the particular job, perhaps through a few demonstrations by another employee or some similar means, and the case of an employee who has to be schooled in the performance of his tasks over a rather lengthy period. [emphasis added] Similarly, in Re Gabriel of Canada Ltd. and The International Association of Machinists, Local 1295 (1978), 20 L.A.C. (2d) 168 (Kates), the board of arbitration commented on the distinction between training and familiarization. At p.177, the board stated the following: - 11- The employer's obligation to provide a candidate for promotion (or transfer) with a training period ought to be distinguished from its obligation to provide him with the benefit of"a familiarization" period. In order to be entitled to a familiarization period the most senior candidate must still exhibit "the immediate and present" skill and ability to perform the work in question. The purpose of the familiarization period is simply to enable the candidate to adjust to the changes in his work environment that normally should be anticipated as a result of the dislocations occasioned by a new job. A familiarization period is not intended to be treated as 'a training period~ enabling the employee to spend a period of time in order to be taught the intricacies of the job. The benefit of the familiarization period is an implicit condition derived from the language of the seniority provisions of the collective agreement and is directed towards the candidate who exhibits the ability and skill to perform the job at the time that the application for the position is made: see Re RCA Victor Co. Ltd. and Int'l Union of Electrical, Radio & Machine Workers, Local 542 (1972), 22 L.A.C. 329 (Simmons). [emphasis added] In Reynolds Aluminum and Molders and Allied Workers Union, Local 28 (1980), 26 L.A.C. (2d) 266 (Shime), the arbitrator explained the rationale behind a requirement for familiarization only, as opposed to training, in circumstances of layoff. At pp.268-269, he said: It is apparent that the company is not required to provide employees with a training period in a lay-off situation. Not only may that be considered as a general proposition in the absence of a training requirement in the relevant clause but, also, it is specific to this collective agreement which expressly permits training in - 12- promotion situations while omitting any mention of training in the event of a lay-off.... Thus, on its face the collective agreement imposes no obligation on the company to train the grievor. The one intriguing argument made by the union is that the language in art. Il.06 [lay-off and recall] does not require the employee to know the job, but it only requires the employee to have the potential to do the necessary work .... While at first blush there appeared to be some merit in the union's argument, upon reflection it is my view that its argument cannot succeed. First, a lay-off situation must be considered as different from a promotion situation. I agree with that line of decisions which states that if an employee seeking a promotion had to be immediately qualified then it is likely that very few employees would succeed in getting a promotion. Promotion clauses must be read in a pruetieal way and it is generally sufficient, of course depending on the language, that the employee have a potential for doing the job. However, a lay-off is not like a promotion. In cases of promotion there are, generally, only a few employees who seek a promotion. After the first promotion there may be a chain-like effect in which one employee is promoted and then others are promoted to fill the vacancy left by the promoted employee and so on; but the situation is limited. A lay-off usually results in a checker board situation in which a number of employees are laid off where the others exert their seniority rights to move into different jobs resulting in a jumping around of various employees in the plant to a number of jobs. If all these employees had to be given instruction in how to perform, it is quite likely that the operation would be severely impaired, and it is precisely in this type of situation, which is generally caused by downturn in economic events, that the employer does not - 13 - wish to bear the expense of training a number of employees. That is not to say that there are not lay-offs which involve very few employees and might not require such an expense, but beating in mind the circumstances of'a lay-off and economics involved, the language of a collective agreement should be quite clear in requiring instruction in cases of lay-off. [emphasis added] (See also Re Canadian Trailmobile Ltd. and UAW, Local 397 (1975), 10 L.A.C. (2d) 92 (Adams)). In the Board's view, the authorities are relatively consistent in their approach to the distinction between familiarization and training, particularly in the context of a layoff. Absent contrary language in a collective agreement, the normal expectation is that an employee who bumps into a position goes to a job for which he or she is qualified, with the understanding that the individual may need little more than familiarization with the surroundings and routines which attach to the new job. When that standard is applied in the case at hand, we are left in some substantial doubt that Ms. Ford may be said to be qualified to be able to perform, without training, the core functions of the Project Field Coordinator. The evidence before the Board confirms, beyond dispute, that there is a fundamental body of knowledge with respect to the workings of the apprenticeship system in Ontario, the role of federal and provincial government authorities and various funding - 14- programs which are part of the working tools of any person in the position of Project Field Coordinator. The evidence is clear that Ms. Ford has no clear understanding of the administrative framework, or of the legislative or regulatory system, which governs apprenticeship in Ontario. Nor does she have a detailed grasp of the client groups within the community which would be involved in liaison with the College. Even if it is accepted that she has some experience in women's issues through her own recruiting activities at Alcan, she nevertheless falls considerably short in her basic working knowledge of the apprenticeship system. Likewise, even if we accept that she has some experience in marketing, it is difficult to overcome the hurdle represented by her virtual lack of knowledge as to the workings of the apprenticeship system, sources of funding and the community groups which would be the target of the job's outreach activities. In our view a person without that body of knowledge cannot be said to be trained and qualified to step into the position of Project Field Coordinator. Applying the standard of the Kelsey Hayes award, it would appear to the Board that the grievor would need time to develop significant new areas of knOWledge before being able to work productively in the position of Project Field Coordinator. Acquiring the knowledge to be able to accomplish the job is not, in our view, a matter of mere familiarization. It is, more accurately, a matter of detailed on-the-job training. Bearing in mind that the threshold of qualification is understandably higher in a bumping situation than in the filling of a vacancy, we have difficulty concluding that a person claiming to be able to perform the position in question, who is not aware of the location of the apprenticeship branch of the Ministry of Skills Development, or indeed of the existence of that Ministry, can claim to be sufficiently qualified, without training, in the - 15 - sense contemplated by article 15.4.3 of the collective agreement. We must accept the position of the College that in fact Ms. Ford would require a substantial period of training to be able to function productively in the position. For the foregoing reasons, the Board is satisfied that the grievor did not demonstrate the requisite degree of qualification without training, that would allow her to displace into the position of Project Field Coordinator in payband 9. The first grievance is therefore dismissed. We turn to consider the second grievance. Ms. Ford claims that she should have been permitted to displace into a position as a clerk, in the Registrar's office, which is a twelve-month position, rather than being limited to displacing the most junior employee in the department, whose position was a nine-month-a-year job. It is common ground that following notification that she was not successful in bumping into the position of Project Field Coordinator, the grievor was allowed to bump into a position as Admission Clerk, in payband 6, in the office of the Registrar. At the time of that displacement there were two incumbents Working in the office, both of whom were junior to Ms. Ford. The more junior of the two held a position which is active nine months of the year, while the more senior of the two, held a twelve-month-a-year position. The Union makes a two-fold argument. Stressing that Ms. Ford was displaced from a twelve-month position, it submits that she should, by the exercise of her bumping rights, be entitled at the outset to bump into the twelve-month position. In the alternative, the Union argues that at the expiry of the nine months, when the grievor was effectively laid - 16- off again, she should be entitled to exercise her seniority rights to bump into the twelve month position held by an incumbent junior to herself. Counsel for the Union submits that it is out of keeping with the intention of the collective agreement for a person in the position of the grievor to be effectively laid off three months of the year while a junior employee in the same office continues to perform the same functions on a twelve month basis. Stressing the fundamental importance of seniority, as reflected in cases such as Tung-Sol of Canada Ltd. (1964), 15 L.A.C. 161 (Reville), counsel submits that the provisions of article 15 should be construed in such a fashion as to ensure that the grievor be entitled to exercise her seniority to a twelve-month position. Counsel for the College submits that the collective agreement does not support the interpretation suggested by the Union. He argues that under the terms of the agreement, for the purposes of the layoff procedure contemplated under article 15, there is no distinction made as between twelve month positions and nine month positions, the existence of which has long been acknowledged by the parties. Counsel notes that persons senior to the grievor hold nine month positions, and that to accede to the argument of the Union is to effectively institute two seniority lists, in a manner contrary to the provisions of the collective agreement. - 17- Upon a review of the terms of the collective agreement, there are compelling reasons to accept the position advanced by the College. However, we readily understand the sentiment which motivates the grievance, and the submissions advanced by the Union. · . It is, arguably, counter-intuitive to contemplate a bumping outcome in the circumstance of a layoff which leaves a senior employee with a lesser degree of job security than persons who work in the same classification and are junior to herself. The position argued by the Union would obviously carry the day if the collective agreement contemplated traditional unrestricted chain bumping on the basis of seniority in the event of a layoff. As the arbitral jurisprudence reflects, absent any restriction in a collective agreement, where layoffs are to be implemented by inverse seniority employees may exercise a degree of choice in the positions to which they will displace in the event they ~e laid off. (Re U.S.W. and Steel Company of Canada Ltd. (1960), 10 L.A.C. 266 (Little); Re Maloney Electric Corp. and International Union of Electrical, Radio and Machine workers (1985), 22 L.A.C. (3rd) 170 (M.G. Picher)). Not surprisingly, collective agreements have developed mechanisms to minimize the dislocation of unrestricted chain bumping. For example, bumping may be restricted within a given division or given line of job progression (see e.g. Re Denison Mines and U.S.W. (1986), 25 L.A.C. (3rd) 230 (Springate)). Boards of arbitration have also found that where the bumping provisions of a collective agreement do not speak of particular assignments, it may be concluded that displaced employees are to bump the most junior employee within the job title chosen by - 18 - the laid off individual (Re Hammond Manufacturing Co. Ltd. and Employees Association of Hammond Manufacturing Co. Ltd. (1992), 27 L.A.C. (4th) 218 (Brent)). The collective agreement before us is the instrument of a sophisticated bargaining relationship. The layoff and bumping procedure found in article 15 of the agreement is fashioned to minimize dislocation in the event of a layoff, in part by specifically preventing chain bumping. As is evident from the language of articles 15.4, 15.4.1 and 15.4.2, the collective agreement addresses the identification of the person who is to be laid off within a classification in the event of a reduction in personnel. Probationary employees are first to be released, and where the affected position is held by post- probationary employees, layoff is to be on the basis of seniority. Once an employee is identified for layoff, his or her rights in respect of bumping are entirely controlled by the provisions of article 15.4.3. That clause provides for a succession of options to vacant positions, or to positions held by the most junior employee, in the same payband and classification or succeedingly lower paybands, which the employee is qualified to perform without training. While, as the evidence before us indicates, the employee who is subject to layoff and who wishes to exercise bumping rights may become involved in selecting a position to which he or she will bump, the exercise is generally restricted to identifying the highest rated position for which the employee is qualified. Once that position is identified, 'by the agreement of the parties, the laid off employee must displace to the position held by the junior employee. - 19- It is self evident that in crafting the language of article 15 of their collective agreement, and specifically in shaping the successive steps of displacement found in article 15.4.3, the parties were fully cognizant that certain 'positions in the bargaining unit offer twelve months of employment while others offer only nine months of work annually. Plainly, had it been their intention to allow employees a degree of choice or protection in respect of maintaining twelve-month positions, in the event of a layoff, they could have so provided in the language of article 15. However, it appears that they were motivated by different considerations and that they consciously drew boundaries around displacement options and opportunities. That is evident, in part, by the provisions of article 15.4.5. Under that article employees who are themselves displaced by the layoff or displacement of another employee do not have unlimited protections. Article 15.4.5 allows for three displacements following the layoff of an "affected employee" within the meaning of article 15. By the terms of article 15.4.5.3, however, the employee who is displaced as a result of the third displacement, is laid off without any further bumping rights. That would be so regardless of the fact that other junior employees might remain at work. The document before us reflects a considered understanding with respect to layoffs and bumping. The parties have knowingly limited and circumscribed the possibility of chain displacement in the event of layoff. Within the terms of the bumping procedure they have made no distinction as among any of the positions in the bargaining unit. The only distinctions brought within the language of article 15.4.3 are classification and payband. More specifically, the parties have made no distinction as between twelve month positions - 20 - and nine month positions. To accede to the argument of the Union would, as counsel for the College suggests, introduce an element of consideration which is not found within the language of the collective agreement. It would, in our view, be tantamount to amending the terms of article 15.4.3 to conclude that employees are entitled to bump from one twelve- month position only to another twelve-month position. There is no language to support such a conclusion. On the contrary, by the terms of the agreement, laid off employees must displace to the position held by the most junior employee in the applicable payband. Nor can they "shop" to a lower payband in an effort to obtain better hours or months of work. Their movement and options are tightly controlled by article 15.4.3. Can it be said that at the conclusion of the nine mOnths the employee is to be considered as again laid off and entitled to displace once more? On the language of the collective agreement we cannot see how that can be. It should be stressed that article 15.4 does not contemplate bumping in the event of a "layoff' as that term is traditionally understood." Boards of arbitration have found that the reduction of an individual's hours or days of employment constitutes a layoff, (See e.g. Charlotte Eleanor Englehart Hospital (1980), 25 L.A.C. (2d) 25 (Palmer); United Tire & Rubber Mfg. (Toronto) Ltd. (1977), 15 L.A.C. (2d).210 (O'Shea); Victoria Hospital (1976), 12 L.A.C. (2d) 310 (Rayner)). However, the language of article 15.4 'of the collective agreement takes a different approach. It specifically provides that when the College decides to "reduce personnel" in any position, the bumping procedure is to apply. It does not speak in terms of reducing hours, days or weeks of work. In the case at hand, the parties have by longstanding practice, recognized the - 21 - existence of positions which are nine months in duration, as well as positions which are twelve months in duration. The complement of personnel is established accordingly. In our view, it cannot be said, without torturing the meaning of ordinary language, that the end of a fixed nine-month term position at the conclusion of the academic year, with the understanding that the position will continue in the next academic year, is a "reduction in personnel" in the sense contemplated by article 15.4 of the collective agreement. It is common ground, in the case at hand, that there are two positions of Admissions Clerk in the Registrar's office. For some time one of them has been designated a nine month position. Apart from the accepted practice, there is nothing which the Union has indicated to us, within the collective agreement, which would prevent the College from establishing and staffing nine month positions. The practice of doing so is longstanding, and does not appear to have been the subject of any dispute by the bargaining agent. When Ms. Ford concludes the term of a nine month position, there is no "reduction in personnel" in the sense that the College's complement of employees is reduced. Moreover, on the language of article 5 of the collective agreement it is apparent that the parties contemplated that an employee displaced as a result of a layoff must face the possibility of reduced earnings. That is the obvious consequence of being compelled, in some circumstances, to take employment in a lower payband. It may also flow from being required to take a position held by the most junior employee in that payband, where the employee holds a nine month position, rather than a twelve month position and while that outcome may be adverse to an employee who is, for example, the third individual displaced by a layoff, it is dearly better than the lot of the fourth employee displaced, who faces mandatory layoff, even though he or she might otherwise have been able to displace another junior employee in a lower payband. An examination of the entirety of article 15 reflects that the parties have given extensive consideration to the hard choices and outcomes that are inevitable when jobs are eliminated. They have devised a system of displacement which is limited to three bumps, and in which the displacing employee does not select the position into which he or she will bump. That selection is pre-determined by the succession of steps established in article 15.4.3 of the collective agreement. As noted above, there is no distinction as among positions to be found within the language of that provision. In the result, in the circumstances of Ms. Ford, we must agree with the College that she was compelled to displace into the position held by the most junior clerk in the registrar's office, notwithstanding that the position so held is for nine months of employment annually, as opposed to twelve months. Given what we consider to be the clear language and scheme of article 15 of the collective agreement, it would require dear and unequivocal language to persuade the Board that any other outcome was intended. - 23 - For the foregoing reasons the second grievance must also be dismissed. DATED at Toronto this~~- day of September, 1993. ~n I CONCUR "Bob Gallivan" Employer Nominee COMMENTS ATI'ACHED "John McManus" Union Nominee COMMENTS OF UNION NOMINEE Having read the award and concurred with the decision, I would still like to make a comment on both parts. The first grievance: To me it appears there is a basic unfairness involved in the procedure used to eliminate the-grievor from moving into the position. (a) The fact that the grievor had never been shown exhibit 11. (b) The Interview panel of two people, surely it would appear more impartial to have a third person involved and a proper marking system in place that could be reviewed at any later enquiry if needed. (c) The emphasis put on certain areas of the position duties and not awarding the proper amount of weight to others. These, what I would term flaws in the procedure are in themselves not enough to influence a change in the outcome'.of the hearing, yet if the panel had been less rigid in their demands I believe they would have found a competent employee in the grievor for the position. BecauSe the main thrust of the position is to recruit and interest women in the non-traditional occupations, so who better than someone who has 'done it and succeeded. After all "no students" and there is no need for rest of the qualifications. Grievance number two, I can only say that it would appear to me this situation was probably never contemplated by those who framed the seniority clause in the agreement and should be addressed at the next round of negotiation. Surely seniority is one of, if not, the most important rights an individual has under the collective agreement and should be treated as such when applied to any part of the collective agreement. "'Jo]'m Mcrlanus" Union Hom J. nee