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HomeMy WebLinkAboutTitus 91-07-01 IN THE MATTER OF AN ARBITRATION BETWEEN FANSHAWE COLLEGE (the College) - AND - ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) GRIEVANCE OF C. TITUS (the Grievor) BOARD OF ARBITRATION: A. M. Kruger - Chair J. Grimwood - Member R. St. Onge - Member APPEARANCES: For the College - P. Jarvis and others For the Union - C. Paliare and others HEARINGS AT LONDON, ONTARIO, FEBRUARY 18, 1991 AND JUNE 10, 1991. Page 2 There are two grievances before this Board filed with us as Exhibits 1 and 2 dated May 17, 1990 and June 20, 1990 respect- ively. There was no objection to the first of these grievances but the College did object to the second grievance. The basis for the College's objection was that the June 20 grievance arose out of Mr. Titus' objection to proposed terms of setttlement offered by the College in discussions on the May 17 grievances. In the College's view settlement discussions during the course of the grievance procedure are privileged and should not be the subject of an arbitration unless there is an allegation of a violation of a settlement reached. In this case there was no agreement to resolve the initial grievance. It was the College's position that the Board should dismiss the second grievance and refuse to hear any evidence related to the settlement discussions. The Union agreed that the second grievance flowed from the settlement discussions. Mr. Paliare acknowleged that usually arbitration boards refuse to hear evidence concerning attempts to settle grievances. However, there were exceptions including instances where such discussion disclosed an admission against interest. The Union's position was that in this case there was such an admission against interest and that the Board should hear all the evidence before deciding the matter. The Board reluctantly agreed to accede to the Union's request and hear the evidence. Our reluctance was based on a concern that the parties should be encouraged to settle Page 3 grievances without resort to arbitration. If attempts to reach resolutions during the grievance procedures can later harm one's case before arbitration, such settlement discussions would be discouraged. However, if there was the possibility that an admission against interest could be clearly established here then we felt we had a duty to hear the Union's evidence in this matter. For reasons that will soon be evident, we see no purpose in dwelling at length on the settlement discussions. During those discussions, at one point, the College offered the grievor the disputed position of leadhand subject to certain conditions. The Union's position is that these conditions reflect the concerns the College at the time Mr. Titus was rejected for the leadhand positon and that these considerations were improper under article 7.6 which governs the appointment of leadhands. They were also contrary to certain terms of the collective agreement. The College's position is that in attempting to settle a grievance, the parties are free to consider and agree to solutions that are not contemplated by the collective agreement. They can amend an agreement or agree on exceptions to the agreement. The fact that the College raised certain matters during settlement discussions does not prove that these matters entered into the original decision that prompted the first grievance. Nor does a proposal of this kind, even if contrary to the terms of the collective agreement, constitute a violation of the agreement that can be grieved. Page 4 We have considered this matter carefully. We find nothing improper in any of the proposals made by the College in the settlement discussions. Nor do we find in them any statements which by themselves, establish a representation against interest. A-cordingly, we dismiss the grievance of June 20, 1990. Fnrthermore, in dealing with the initial grievance, we set aside any evidence arising from the settlement negotiations. We turn now to that grievance. The dispute before us arises out of a decision by the College to appoint Mr. Harold Goosens rather than the grievor to the position of lead hand. Mr. Goosens attended the hearing and was invited to participate in the appropriate way. The relevant provisions in the collective agreement are reproduced here. 2.1 Interference The Colleges and the Union agree that there will be no intimidation, discrimination, interference, restraint or coercion exercised or practised by either of them or their representatives or members because of an employee's membership or non-membership in the Union or because of his/her activity or lack of activity in the Union. 7.6 Lead Hand Premium Where the College determines that it is required, a Lead Hand may be designated within a work group, giving due consideration to the ability, qualifica- tions required for the position and seniority, in making the appointment. Where the College assigns an employee to Lead Hand responsibilities, the employee shall be entitled to a premium in the amount of seventy-five (75) cents per hour over his/her then current classification rate for all hours worked during such assignment. Page 5 17.1.1. Consideration - Bargaining Unit Employees When vacancy occurs and employees within the bargain- ing unit at the College apply, the college shall determine the successful candidate based on the qualifications, experience and seniority of the appli- cants in relation to the requirements of the vacant position. Where the qualifications and experience are relatively equal, seniority shall govern, provided the applicant has the necessary qualifications and experience to fulfil the requirements of the position. The union contends that in making the decision on who to appoint as lead hand, the College acted improperly violating both Articles 2.1 and 7.6. The Union argues that Article 7.6 requires the College to consider "ability, qualifications required for the position and seniority." Mr. Titus was at least equal to Mr. Goosens in ability and qualifica- tions and had more seniority than Mr. Goosens. Therefore, he should have been appointed lead hand. He felt that the only reason he was not appointed was because he was Chief Steward of the local union. In support of this position, the Union pointed out that in the past, on a few occasions, he had been appointed acting lead hand when the lead hand was absent. There had been no criticism of his performance in that position. Indeed, since his last evaluation some two years prior to the event leading up to this grievance, he had never been criticized for his work. Mr. Titus reviewed his education and experience in his evidence to show that he had more formal education than Mr. Goosens and also that he and not Mr. Goosens had been asked to lecture at the College on electrical installations. To the extent that leadership was a factor in the decision, his union activities should have been Page 6 viewed positively and not negatively. Mr. Magoon, the Manager of Mechanical Services testified for the College. He told the Board that he made the decision to appoint Mr. Goosens and not Mr. Titus. There were three eligible candidates at the time. Mr. Titus was the most senior of the three. All three had similar relevance academic qualifications for the job. However, both Messrs. Pearson and Goosens had experience in construction as well as maintenance while the grievor had only maintenance experience. The lead hand job at that time involved extensive construction work. Furthermore, Mr. Magoon concluded that Messrs. Pearson and Goosens were far more efficient than Mr. Titus. He testified about several occasions where Mr. Titus' work was slow, dis- organized and far more costly than necessary. He admitted that he had not raised his concerns with Mr. Titus prior to the hearing before this Board. He concluded that although Mr. Titus had more seniority than the other two candidates, their superior ability overrode his seniority advantage. He offered the position to Mr. Pearson who declined to accept and then to Mr. Goosens who accepted the position. The parties agree that unlike most other vacancies which must be posted and are covered by Article 17.1.1, the position of lead hand is covered by Article 7.6 and is not posted. We have reproduced the relevant sections of these two clauses above and there are notable differences which we must assume are deliberate. Article 7.6 requires that the College give Page 7 "due consideration to ability, qualifications for the job and seniority, in making the appointment." Article 17.1.1 states that the College "shall determine the successful candidate based on qualifications, experience and seniority" and goes on to say that "where the qualifications and experience are relatively equal, seniority shall govern." The Union contends that under Article 7.6 each of the three factors listed should be weighted equally. In this case, Mr. Titus was equal to Mr. Goosens in qualification and ability and superior to him in seniority and should have been awarded the position. The College argues it met the requirements of Article 7.6 in considering the three factors. That should dispose off the matter. The College was entitled to give the three factors what- ever weight it wished and here it quite properly decided that differences in ability overrode differences in seniority. The Board has considered the evidence and argument presented to us. We reject the College's view that as long as the three factors are considered that ends the matter. The considera- tion in our view must be one that would lead a reasonable person to the result reached by the College. Surely an arbitration board would be entitled to overturn a decision where the College considered the three factors, concluded A was stronger than B in all three but awarded the position to B. We cannot accept the Union's view that Article 7.6 requires an equal weighing of the three factors. We believe it requires that these three factors and only these three factors be Page 8 consiaerea and that the' weight given~to them be reasonable and support the decision of the College. In this case, we accept Mr. Magoon's evidence that his decision was made after considering the three relevant factors. The Union has failed to show that Mr. Magoon's conclusion that the grievor worked slowly and in a disorganized way and that this was a major cause for concern for the position of lead hand was incorrect. We find that on the basis of the evidence he had, Mr. Magoon was entitled to conclude that Mr. Goosens' superiority in ability overrode the grievor's longer seniority. For all these reasons, this grievance is dismissed. DATED at Toronto, Ontario this day of July, 1991. A. M. Kruger J. Grimwood R. St. Onge DISSF_~IT I have read the award of the Majority in this matter, and must respectfully dissent from it. While I am in agreement with the rejection of the College's suggested approach, I have no hesitation in saying that the consideration exercised by the College were not ones that would "lead a reasonable person to the result reached by the College." My reasoning is based on two factors: firstly, the Grievor's previous temporary appointments as acting lead hand, without criticism; and secondly, his position as Chief Steward of the local Union. 'Althoug~ seemingly unrelated, when one examines the test as set out in the Great Atlantic case [(1976) 76 CLLC p. 332 (Ont. H.Ct.),], the honesty and malafides in making the decision are indeed factors to be taken into account. Or, as was said there: "Indeed, in determining the "reasonableness" of the employer's decision, the board may go a long way to determine the issue submitted to it." In a way, the combination of the two factors cited above, is, in my view, sufficient to discharge the onus placed initially on the Union, and shift it back onto the Employer -- a burden which the Employer has most assuredly not discharged. When one also considers that the language does not state that one factor is to be treated differently from the other two, meaning that they are equally important, it is difficult to see how the College's decision can be upheld. I would have allowed the grievance. Date'd in Toronto this 26th day of July, 1991