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HomeMy WebLinkAboutTremblay 92-10-23 GEORGE BROWN COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION GRIEVANCE OF HELEN TREMBLAY BOARD OF ARBITRATION: JANE H. DEVLIN CHAIRMAN ROBERT J. GALLIVAN COLLEGE NOMINEE SHERRIL MURRAY UNION NOMINEE Appearances for the College: Stephen F. Gleave Heiner Piller Ann Lillepold ~ppearances for the Union: Michael McFadden Helen Tremblay Patrick Brian OPSEU FILE NO.: 91F860 HEARING HELD IN TORONTO ON AUGUST 24, 1992 1 The Grievor, Helen Tremblay, claims that the College failed to properly consider her application for the position of Clerk, General D in the Performing Arts Division, which was posted in August of 1989. The position entails providing clerical and secretarial services to the Chairman, faculty and students of the Theatre School. The successful applicant for the position, Larry Laforet, was given notice and attended the hearing. At the outset of the hearing, the College raised a preliminary objection to the arbitrability of Ms. Tremblay's grievance and the parties agreed that it would be appropriate for the Board to determine this objection prior to proceeding with the hearing on the merits. The essence of the College's objection is that the position of Clerk, General D, which was posted in August of 1989, was a temporary vacancy to which the provisions of Article 17.3.1 applied. In accordance with this Article, the College contended that there was no obligation to interview or otherwise consider the Grievor as the College had the discretion to hire an external applicant. It was the submission of the Union that the vacancy in issue was permanent, rather than temporary, with the result that the provisions of Article 17.1.1 applied. In accordance with this Article, the Union contended that the College was required to consider the qualifications, experience and seniority of bargaining unit applicants, prior to considering external applicants. 2 The relevant provisions of the Collective Agreement are as follows: 3. NANAGE~'WT FUNCTIONS 3.1 Union Acknowledgements The Union acknowledges that it is the exclusive function of the College 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· 17. JOB POSTINGS/PROHOTIONS 17.1 Notices Notice shall be posted of a vacancy in a classification covered by the Agreement for a period of five (5) days at each Campus and, at the same time, shall be sent to other locations of the College. 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 3 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 - Baz~ainin~ Unit Employees When a vacancy occurs and employees within the bargaining unit at the College apply, the college shall determine the successful candidate based on the qualifications, experience and seniority of the applicants 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 College need not consider probationary employees· 17.1.1.1 Notification - Applicant All applications wiii be acknowledged and ail applicants who are interviewed will be notified of the outcome of their application and the name of the successful internal applicant, if any. The College will not interview applicants from outside the bargaining unit until it has complied with Articles 17.1 and 17.1.1 above. The College will not considered applicants from outside the bargaining unit until it has assessed internal applicants and notified them of the results. 17.3 ~oraryAssi~t.s 17.3.1 Temporary Postings Where the College has at least four (4) weeks' notice of a temporary vacancy in the bargaining unit which is expected to be more than four (4) months' duration, the College shall post the temporary vacancy so that bargaining unit employees can indicate their desire to be selected for such vacancy. Recognizing that the College reserves the right to select a person in the bargaining unit or hire a temporary employee at is discretion, where a bargaining unit employee is selected as a temporary replacement the employee will have the right to return to his/her 4 regular position or its equivalent on the expiration of the temporary assignment. Resultant temporary vacancies caused by the selection of a bargaining unit employee need not be posted. It is understood the provisions of Article 17.1 do not apply to temporary vacancies. APPENDIX D · B~%R¥ EMPLOYEES 1. The terms of this Appendix apply to persons employed on a casual or temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence. No other provision of the Collective Agreement shall apply to such persons unless otherwise stated in this Appendix. 2. The rate to be paid to su6h an employee shall be the appropriate rate applicable to the classification of the replaced employee, subject to progression steps applicable to the replacing employee, where appropriate. 3. The replacing employee shall be subject to the deduction and remittance of Union dues, as provided in Article 5.4 of the Agreement. 4. The union shall be notified at the commencement of employment, and upon expiry of the term of employment. 5. In addition to the hourly rate of pay, the employee shall receive an additional four (4) per cent in lieu of all fringe benefits, including vacation and holiday pay. Effective April 1, 1991, in addition to the hourly rate of pay, the employee shall receive five (5) per cent in lieu of all fringe benefits, including vacation and holiday pay. 6. The employee may be released by the College before the .termination date of any term of employment, for replacement need changes or operational requirements. 7. Employees covered by this Appendix are entitled to utilize the grievance procedure to enforce the rights contained in this Appendix. 5 The facts which are material to the determination of the College's preliminary objection are not in dispute. Elsie Jeffries, the previous incumbent of the position of Clerk, General D in the Performing Arts Division retired and on August 11, 1989, the College posted a permanent vacancy in this position. The Grievor, who was the only bargaining unit applicant, applied for the position on August 16th. On August 28th, she was advised by Ann Lillepold, the Manager of Employment Services, that the selection committee had r~vlewed her application and determined that her qualifications and experience did not meet the requirements of the posted position. The selection committee consisted of Ms. Lillepold, Heiner Piller, the Artistic Director, and Peter Wylde, a faculty member in the Performing Arts Division. The College then proceeded to recruit external applicants for the position and, for this purpose, the selection committee arranged an interview with Larry Laforet on August 30, 1989. Ms. Lillepold testified that, during a meeting of the selection committee immediately prior to that interview, Sally Layton, the Director of Human Resources, advised the committee that she had just met with Doug Light, the President of the College, and that due to financial constraints, the position of Clerk, General D was not to be filled. There was evidently then some discussion among the members of the selection committee and it was agreed that, as a courtesy, the committee would proceed . 6 with the interview of Mr. Laforet. Ms. Lillepold testified, however, that Mr. Laforet was advised during the interview that the College did not intend to fill the position on a permanent basis. Following the interview with Mr. Laforet, Mr. Hiller approached Mr. Light and, particularly as classes were scheduled to begin the following week, Mr. Hiller persuaded Mr. Light to fill the position of Clerk, General D on a temporary basis. As a result, Mr. Laforet was appointed to the position from September 1 to September 29, 1989 and paid in accordance with the provisions of Appendix D of the Collective Agreement. A number of extensions to the appointment were subsequently granted, each of which was approximately one month in duration. The final extension covered the period from January 29 to February 24, 1990. In the meantime, in late January or early February of 1990, authorization was given to fill the position on a permanent basis and, as a result, the position was reposted on February 16, 1990. 'Although the Grievor was notified by Ms. Lillepold of the reposting, she did not apply for the vacancy. As there were no other bargaining unit applicants, the position was awarded to Mr. Laforet effective February 26, 1990. It was the submission of Mr. Gleave, on behalf of the College, that although the position of Clerk, General D was initially posted as a permanent vacancy, prior to-the College 7 making an appointment to the position, the vacancy became a temporary one. Mr. Gleave further submitted that the appropriate time for assessing the nature of the vacancy is after the fact, looking back at the events subsequent to the posting of the position. Adopting this approach, Mr. Gleave contended that as the College did not have the funds to support a permanent position, it made a commitment to fill the vacancy only on a month by month basis. Mr. Gleave further pointed out that when authorization was subsequently obtained to post the position permanently, the Grievor declined to apply for the job. In any event, it was submitted that the vacancy which arose in August of 1989 was temporary rather than permanent and, in accordance with Article 17.3.1 of the Collective Agreement, the College had the discretion to hire an temporary employee. There was no obligation, therefore, to consider Ms. Tremblay for the position and, accordingly, Mr. Gleave asked that her grievance be dismissed. It was the submission of Mr. McFadden, on behalf of the Union, that in determining whether a vacancy is temporary or permanent, an objective assessment must be made. A vacancy cannot be characterized as temporary simply because that reflects the view of the College President. Mr. McFadden further contended that although the College entered into a series of monthly contracts with Mr. Laforet, these contracts were a matter of form. In substance, however, there was an ongoing requirement 8 for the work of the Clerk, General D and Mr. McFadden pointed out that from September of 1989 to February of 1990, the duties of the job continued to be performed as they had in the past. Mr. McFadden also relied on Appendix D to the Collective Agreement which is entitled "Temporary Employees" and applies to "persons employed on a ... temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence". Based on this Appendix, it was submitted that financial constraints are not a factor which would permit the College to fill a position on a temporary basis. In the result, Mr. McFadden contended that the vacancy in the position of Clerk, General D which arose in August of 1989 was permanent and was required to be filled in accordance with the provisions of Article 17.1.1 of the Collective Agreement. Accordingly, Mr. McFadden asked that the College's preliminary objection be dismissed. In this case, the evidence indicates that the position of Clerk, General D was initially posted as a permanent vacancy in August of 1989. It was not suggested, however, that simply because of the posting, the College was obliged to fill the position on a permanent basis if, in fact, there was a bona fide change in the nature of the vacancy. Moreover, there was no dispute that in filling a temporary vacancy, the College has a broad discretion and may select a member of the bargaining unit or may hire a temporary employee. Accordingly, the real issue 9 concerns the nature of the vacancy which came to filled on September 1, 1989. The Collective Agreement, in this case, does not define a temporary vacancy and although Appendix D to the Agreement applies to persons employed on a temporary basis to replace bargaining unit employees absent due to vacation, sick leave or leaves of absence, we are not prepared to find that this is exhaustive of th~ circumstances in which an individual might be temporarily employed by the College. Nevertheless, based upon 'the evidence, we are also not persuaded that the vacancy in issue was temporary in nature. Firstly, despite the College's characterization of the vacancy as temporary, the evidence indicates that there was a ongoing requirement for the work of the Clerk, General D and throughout the period from September of 1989 to February of 1990, this work continued to be performed as it had in the past. Moreover, although there was some suggestion that financial constraints caused the President to characterize the vacancy as temporary, there was no indication as to the nature of these constraints, nor was the President or anyone involved in the de~ision-making process called to give evidence in this regard. Accordingly, although the College made a series of monthly appointments to the position of Clerk, General D, there was nothing to indicate that the College actually reviewed the 10 viability of the position on a month by month basis. Further, even if such a review was undertaken, there was no evidence as to the factors considered by the College in its decision to extend the appointment of Mr. Laforet. In these circumstances and given the ongoing and continuous requirement for the performance of the .duties of the position of Clerk, General D throughout the period in question, the Board is unable to conclude the vacancy was temporary in nature. In the result, the preliminary objection advanced by the College is dismissed. The hearing on the merits of Ms. Tremblay's grievance shall proceed on December 17, 1992, as previously scheduled. DATED AT TORONTO, this 23rd day of October, 1992. Chairman See Dissent Attached College Nominee "Sherril Murray" Union Nominee DECISION OF R.J. GALLIVAN The majority decision accurately sets out the key facts and relevant sections of the collective agreement. It is the conclusion drawn by my colleagues from the application of the agreement to those facts with which I disagree. Article 3.1, the Management Functions provision of the collective agreement, recognizes the College management's right, among others, to "determine complement...and the number .... and classification of personnel..." subject only to those impediments found elsewhere in the agreement. As is evident from examination of the agreement, nothing elsewhere fetters management's right to create new jobs, leave old jobs vacant, or to use "temporary" instead~of "permanent" employees in a wide variety of circumstances in any number or combination deemed necessary by management to meet operational needs. Once management makes the basic decision to have certain work performed either on a temporary or permanent basis (and here I agree with the majority that there can be many more reasons for temporary assignments than the few examples listed in the contract), the collective agreement then outlines in Article 17 and Appendix D the way in which candidates to do the work may be recruited and paid. Against that background, I find erroneous the majority's conclusion that there was insufficient evidence to support the College's preliminary objection. The evidence before us, from a representative of management, was that the decision not to fill the vacant job and later to fill it temporarily, was made because of financial restraint. It is important to note that that evidence was entirely unchallenged. Furthermore, there was no suggestion at all that management's decision was made in bad faith. Thus it is difficult to see how any of that would change by more evidence of the nature of the financial restraint, or by hearing of it from different management witnesses. The fact that the work continued to be done on a month-by-month basis until the College decided to make the job permanent again is, I believe, irrelevant (given the absence of any allegation of bad faith) to a correct interpretation of this contract - because it is up to management to decide as outlined above whether it wants the work done at all or not. There is no obligation on management under this collective agreement to provide any minimum amount of work or to guarantee any minimum number of jobs, whether permanent or temporary. Management's contractual obligation is simply to follow certain agreed procedures once the decision to fill a job is made - procedures which were followed in this case. That being in my view the correct interpretation of the contract based on the unchallenged facts before us, I conclude that the preliminary objection raised by the College should be sustained.