HomeMy WebLinkAboutUnion 95-07-11 IN THE MATTER OF AN ARBITRATION
BE~TWEEN:
NIAGARA COLLEGE
(Hereinafter referred to as the College)
AND
ONTARIO PUBLIC SERVICE EMPLOYEES' UNION
(Hereinafter referred to as the Union)
AND IN THE MATTER OF A UNION GRIEVANCE (OPSEU FILE 94EOg6 SUPPORT)
BOARD OF ARBITRATION: Gall Brent
Hugh 3ohn Cook, College Nominee
Pamela Munt-Madill, Union Nominee
APPEARANCES:
FOR THE COLLEGE: Wallace Kenny, Counsel
FOR THE UNION: Carmine Tiano, Counsel
FOR THE THIRD PARTY: Donna LeBlanc, Third Party
Hearing held in St. Catharines, Ontario on May 30, 1995.
DECI S ION
The grievance (Ex. 1), dated September 6, 1994, alleges that the College
violated the collective agreement by adding duties to a job after it had been
posted. The Union asks that the job be reposted to reflect the proper duties.
No preliminary objections were raised concerning arbitrability or jurisdiction.
No witnesses were called. The parties agreed on the relevant facts and
stated them to us. On or about May 9, 1994, the College posted a vacancy for
a Typist Stenographer B, Payband q (Ex. 2). After the candidates were selected
for interviews, the College informed them, at the interviews, that the duty of
monitoring parking lots at two campuses was being added to the Position
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Description Form (PDF). The third party, Donna LeBlanc, was the successful
applicant.
The PDF (Ex. 3) was amended on or about August 3, 199#, and was sent to
the joint classification committee on or about August 10, 1994. That committee
determined that the addition of the parking lot duties did not change the
classification of the job, and it remains classified as a Typist Stenographer B,
Payband 4.
The position is a 35 hour a week job. The duties which were added to the
PDF (Ex. 3) are set out below:
Monitors the St. Catharines campus and School of Horticulture parking lots
by advising drivers of the parking regulations, and/or enforcing the
parking regulations and issuing parking tickets according to the By-Laws
of the City of St. Catharines.
According to the PDF (Ex. 3), those duties take approximately 6% of the
incumbent's time annually. That is roughly 2 hours a week. There was no
change in the qualifications for the job as a result of the above duties having
been added.
The Union asserted that the job should have been reposted with the proper
duties reflected on the job posting, and that by fmiling to do so the College
abused its rights under Article 3 and violated Article 17.01 of the collective
agreement.
The College asserted that it has the right to adjust job duties unless
prohibited by the collective agreement, and that there was nothing wrong with
assigning these duties to this classification. It pointed out that there was no
change to the classification, and no change occurred that was so fundamental
that it altered the classification of the job posted. It also asserted that
Article 17.01 only obliges it to post a vacancy in a classification, and there are
always incidental duties to the core function of any classification.
3
The Third Party, as well as pointing out to us that she was not aware that
she could lose her job until she had heard the submissions of the parties, also
confirmed that the duties are purely incidental to the core function of her
position, and that she considered them to be in the nature of "other duties as
assigned".
/he parties referred us to the following authorities: Re Mount Sinai Hospital
and Ontario Nurses' Association (1991), 13 L.A.C.(#th) 230 (Haefling); Re Ontario
Hydro and Canadian Union of Public Employees, Local 1000 (19~7), 30 L.A.C.(3d)
331 (Brent); and Canadian Labour Arbitration, Brown and Beatty.
The following provisions of the collective agreement were referred to in
argument:
3.1 Union Acknowledgements
The Union acknowledges that it is the exclusive function of the Colleges to:
- maintain . . . efficiency;
- . . . classify, assign, appoint . . . 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, . . . direct its personnel, determine complement, organization,
methods and the number, location and classification of personnel
required from time to time, . . . the scheduling of assignments and
_ work, . . . and all other rights and responsibilities not specifically
modified elsewhere in this Agreement.
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 qu~!ifications. 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.
We have considered the facts as outlined to us, the collective agreement,
and the submissions of the parties. It is our view that the College was obliged
#
by virtue of Article 17.1 to post "a vacancy in a classification". The additional
duties added to the job in question are purely peripheral to the core function
and did not change the classification. There is no provision in the collective
agreement that prohibits the College from assigning such duties, subject to the
right of employees to have their jobs properly classified. Therefore, the College
did, as required by Article 17.1, post notice of a vacancy in the Typist
Stenographer B classification, and that was the vacancy which it filled.
The core function of the job did not change. The qualifications did not
change. There was simply the addition of some minor duties which did not
change the nature and character of the position advertised. Had the College
posted a vacancy in the Typist Stenographer B classification when it intended
at the time of the posting to change the nature of the job immediately so that
it would become, for example, a Clerk General B, then the Union's position would
have merit, and it could be clearly seen that the posting was invalid. On these
facts, however, we cannot find a violation of the collective agreement. The
authorities cited to us do not alter this conclusion.
For all of the reasons set out above, we find that the collective agreement
has not been violated, and the grievance is dismissed. We do, however, wish to
reconfirm the remarks made at the hearing concerning the adequacy of notice to
third parties.
DATED AT LONDON, ONTARIO THIS [[¥" DAY OF ~'hJ.~ , 1995.
Gall Brent
concur /
H. 5. Cook, College Nominee
I concur / dd=~.nt 7. m N-YI¢~(~" ~
~ ~ 0~o~ P. Munt-Madill, Union Nominee
Addendum
I agree with the majority that it is not appropriate
to require the position be reposted at this time. The
evidence established the added job duties require one-half
hour per day of the incumbent's time. This is not enough to
justify the disruption of reposting and refilling the
position. However, there are problems with the College's
action in altering the duties of the job position after
posting. Although the College's action may not technically
violate the posting provisions contained in Article 17.1 of
the Collective Agreement; they defeat its purpose.
The purpose of a posting requirement is to communicate a
position is available and give members an opportunity to
apply. To fulfill this purpose members need to have accurate
information regarding job duties of the position. In this
case potential candidates had four sources of information
about the content of the position; 1) The posting;
2) The duties which could reasonably be expected to be
included in the position as represented by the job title;
3) The duties performed by the past incumbent; 4) The duties
as outlined on the Position Description Form.
The posting did not mention the job duties of monitoring
parking lots and issuing parking tickets. These are not
duties usually contained in a Typist Stenographer position
and were not performed by the previous incumbent.
Furthermore, the Position Description Form was not amended to
include the duties until well after the position was filled.
None of these four sources of information advised
potential applicants that parking lot monitoring was
included in the position's job duties. Therefore, bargaining
unit members did not have accurate information about the job
duties of the position when making their decision to apply.
The College's actions defeated the purpose of the Collective
Agreement job' posting requirements. In the future,
information regarding job duties which have been added to a
position should be included in the job posting.
Pamela Munt-Madill, Union Nominee