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HomeMy WebLinkAboutUnion 95-06-06 IN THE MATTER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE OF APPLIED ARTS AND TECHNOLOGY - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION UNION GRIEVANCE BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR HUGH JOHN COOK COLLEGE NOMINEE JON MCMANUS UNION NOMINEE STEPHEN J. SHAMIE, FOR THE COLLEGE MAUREEN E. DOYLE, FOR THE UNION OPSEU FILE NO.: 94E245 DATE OF HEARING: March 7, 1995 1 The grievance which was filed by the Union involves a claim that the College failed to post and fill the position of Clerk General in the bookstore in a timely manner. At the hearing, the Union indicated that the relief claimed was confined to a declaration of the violation. The relevant provision of the collective agreement is Article 17, the material portions of which are as follows: 17. JOB POSTINGS/PROMOTIONS 17.1 Notice 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 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 - Bargaining Unit Employees When a vacancy occurs and employees with 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 17.1.2 Notification - Applicant All applications will be acknowledged and all applicants who are interviewed will be notified of the 2 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 Article 17.1 and 17.1.1 above. The College will not consider applicants from outside the bargaining unit until it has assessed internal applicants and notified them of the results. 17.1.4 Consideration - Non-Bargaining Unit Employees Employees who are not included in the bargaining unit may apply for posted vacancies but will be considered only after the application of Article 17.1.1 and 17.1.1.1. In addition to any other factor that the College considers relevant, consideration will be given to service with the College. The material facts which were agreed upon between the parties are as follows: 1. Barbara Hiller was a Clerk C General in the bookstore at Niagara College. 2. In May, 1994, Ms. Hiller officially informed the Human Resources Department of the College that she would be retiring in July, 1994. 3. Ms. Hiller's last day at work was June 17th, 1994. Following that date, she took vacation time, at the end of which she retired. Her official retirement date was July 31st, 1994. 4. Also employed in the bookstore at that time were three other full-time employees: Sharon Yacyshyn, Expediter; Gloria Oakes, Clerk; and Mary Cunningham, Supervisor. There was in addition, one regular part-time employee, Toni Bissette, who worked up to 24 hours per week for nine months per year. In July, 1994, the College hired an additional part-time worker for 24 hours per week until October, 1994. Additionally, the College hired two students for 35 hours per week for July and August, 1994. These students also worked 24 hours per week in the month of September. Documentation respecting staffing patterns indicates that part-time and student staffing was fairly consistent over the summer months during the period from 1992 to 1994. 5. Mary Cunningham was away from work from February 1, 1994 to August, 1994 and medical documentation which was 3 provided to the College indicated that her return to work was anticipated on a monthly basis. Upon returning in August, Ms. Cunningham worked for one week, and then was absent again until October llth, 1994. Reasons for her absences included sick leave and compassionate leave. 6. In a Union/College Committee meeting on May 17, 1994, the College advised the Union that Sandy Fox, a Manager with responsibility for a number of areas including the bookstore, would review the Position Description Form for Ms. Hiller's position with Mary CUnningham, upon Ms. Cunningham's return to the workplace. Evidently, a new job· evaluation plan had recently been developed and the PDF for Ms. Hiller's position had to be reviewed to ensure compliance with the plan. 7. During the summer months, work at the bookstore continues, including ordering significant quantities of books for the following September. The bookstore is generally fairly busy during the summer months. 8. During the months up to and including September, 1994, full-time staff remaining at the bookstore were required to perform duties in addition to their own duties, and were each performing up to approximately 20 hours of overtime per month. Overtime records for 1993 indicate that similar amounts of overtime were worked during that summer. Following September, 1994, full-time staff continued to perform extra duties and regularly performed'overtime. Additional duties included duties formerly performed by B. Hiller. 9. On August 15, 1994, the Union grieved the College's failure to post the position of Clerk left vacant by Ms. Hiller's retirement. 10. The College did not declare the position redundant. 11. On September 20, 1994 the College posted the position internally, with a closing date for the competition set as September 26, 1994. 12. No eligible bargaining unit members applied. 13. Ms. Toni Bissette, part-time staff person at the bookstore applied, but was not considered eligible for the internal posting, according to the terms of the Collective Agreement. 14. The position was posted externally on October 15, 1994, with a closing date of October 25, 1994. 4 15. 800 applications were received in response to the external posting. 16. A short list of 10 candidates was compiled by the College from the 800 applications. 17. Interviews were never held. 18. On January 16, 1995, Mary Cunningham was relieved of her responsibilities as supervisor of the bookstore due to a reorganization. At that time, she was offered the vacant position of Clerk C at the bookstore. 19. On February 2, 1995, Ms. Cunningham accepted the position. 20. On February 20, 1995, the vacancy left by Ms. Hiller's retirement was filled by Mary Cunningham. Apart from events relating to the posting and filling of the vacancy, the College also referred to a proposal put forward by the Union during the last round of bargaining to amend Article 17.1.1 of the collective agreement. This proposal, which was subsequently withdrawn, was as follows: 17.1.1 Consideration - Bargaining 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 basic qualifications outlined in the job posting, 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. Where the college is aware of an upcoming vacancy with at least two (2) months lead time to fill the position, the hiring selection process shall be complete one (1) month prior to the vacancy occurring. 'The new hire will commence work one (1) week before the vacancy takes effect, and that week will be a training week. The start date of training will be considered to be the date of hire. The College need not consider probationary employees. Based on the facts outlined, it was the submission of Ms. Doyle, on behalf of the Union, that as Article 17 contains no express time limit, the obligation to post a vacant position arises when the vacancy occurs. She further contended that the College is required to select the successful candidate within a reasonable period of time thereafter. In this case, Ms. Doyle pointed out that the vacancy was not posted until almost two months after Ms. Hiller's retirement and some three months after her last day of work. Moreover, the position was not filled until some seven months after the vacancy arose and, in these circumstances, Ms. Doyle asked the Board to declare that the College had breached the requirement to post and fill a vacant position within a reasonable period of time. It was the submission of Mr. Shamie, on behalf of the College, that as Article 17 of the collective agreement contains no express time limit, it is up to management to determine when a vacancy is to be posted. Mr. Shamie further contended that to accede to the Union's position would effectively amend the collective agreement and give the Union the benefit of a proposal which was withdrawn during bargaining. In any event, it was submitted that in this case, it was reasonable for the College to await the return of Ms. Cunningham before posting the vacancy and that given the number of applications for the external posting as well as the College's decision to reorganize, there was ample reason for not filling the vacancy until February, 1995. In the result, Mr. Shamie asked that the grievance be dismissed. 6 The issue, then, is whether the College violated the collective agreement by failing to post and fill a vacancy in the position of Clerk General in the bookstore in a timely manner as alleged by the Union. In respect of this issue, it was acknowledged that upon Ms. Hiller's retirement, there existed a vacant position and there was no suggestion that there was not sufficient work to justify filling that position. As to the requirements of the collective agreement, Article 17.1 specifies that notice of a vacancy in a classification covered by the agreement shall be posted for a period of 5 days at each campus and, at the same time, shall be sent to other locations of the College. Article 17.1.1 then sets out the procedure to be followed "when a vacancy occurs and employees within the bargaining unit apply". Article 17.1.1.1 and Article 17.1.4 make it clear that external applicants are not to be considered until internal applicants haVe been assessed and advised of the outcome of their applications.· Although Article 17 contains no express time limit specifying when a vacancy is to be posted and filled, in the Board's view, it cannot concluded that this is simply a matter of management's unfettered discretion as contended by the College. Instead, based on the language of Article 17, the Board finds that the requirement to post arises when a vacancy occurs and that it is implicit that a vacancy is to be posted and filled 7 within a reasonable period of time thereafter. What is a reasonable period will depend on the circumstances of the individual case and, in filling a vacancy, in particular, consideration must be given to various factors, including the number of applicants, the nature of the selection process which is undertaken and whether the vacancy is filled by an internal applicant or whether the College must subsequently consider external candidates as well. Moreover, the Board disagrees with the College that the interpretation of Article 17 which we have adopted would provide the Union with the benefit of a proposal which was withdrawn during bargaining. As noted previously, the Union's proposal contemplated that the posting and selection process would take place prior to incumbent vacating the position or, in other words, before the vacancy arose. We agree with the College that there is no such requirement in the current collective agreement although, for the reasons set out, we find that there is a requirement to post and fill a position within a reasonable period after the vacancy arises. As to whether that requirement was satisfied in the circumstances of this case, the facts indicate that Ms. Hiller officially retired on July 31, 1994 and, accordingly, it waS at that time that the vacancy arose. The vacancy, however, was not posted immediately as the College was awaiting the return to work of the Supervisor, Ms. Cunningham, in order that she could review 8 the PDF to ensure that it complied with the revised job evaluation plan. While the Union contended that it was unreasonable for the College to await Ms. Cunningham's return given that she had been absent from work since February, 1994, in fact, Ms. Cunningham returned to work for one week in August although the precise date of her return was not specified. In any event, a number of weeks subsequently elapsed prior to the posting and while this period may be viewed as somewhat lengthy, in the circumstances, the Board cannot conclude that the delay was sufficient to constitute a violation of Article 17 of the collective agreement. Similarly, we are unable to conclude that the period between the expiry of the internal posting and date of the external posting was sufficiently lengthy to find a violation of the agreements As to the filling of the vacancy, the parties agreed that the position of Clerk General in the bookstore was filled by Ms. Cunningham on February 20, 1995. The College suggested that this was a reasonable period of time within which to fill the vacancy given that there were some 800 applications for the external posting and that the College also made a decision to reorganize in the meantime. While it is not clear when the decision to reorganize was made, there was no indication that this affected the existence of a vacancy in the position of Clerk General. Moreover, although a large number of applications were received for the external posting and the College compiled a short list of ten applicants, it is not clear how long it took to 9 complete this process. Furthermore, in assessing the time taken to fill the vacancy, it is noteworthy that the position was not filled as a result of a competition among external applicants and, in fact, interviews of external applicants were never held. Instead, the vacancy was awarded to Ms. Cunningham and, as indicated previously, the Union is not'seeking to set aside the selection process. Nevertheless, the Board agrees with the Union that, in the circumstances, the time taken to fill the vacancy was unduly lengthy and, to this extent, the Board finds that the College breached its obligation to fill the vacancy in the position of Clerk General in the bookstore within a reasonable period of time. The Board, therefore, issues a declaration to this effect and shall remain seized for purposes of implementation of this award. DATED AT TORONTO, this 6th day of June, 1995. Chair See Dissent Attached College Nominee "Jon McManus" union Nominee ,=,,~-~--,,--l~o ~i:.-'4k'l'l FROI'I HUGH JOHt-t CO01~ TO 1416~E,E, OIBT'B F'.OI Dis s_el~ The position of clerk-general itl tlle bookstore of Niagara College became vacm~t on July 31, 1994, and was offered to Mary Cum]inghmn ol~ January 16, 1995. The urdm~ grieved (hat the college breached the collecCve agreement by taking too long to post and Fzll the vacancy. I agree with the conclusion of tim chair thai'" In the (:lrcumstm~ces, tim Board cmmot conclucle that the delay tin pos~g) was sul[icient to constitute a violation of Article 17 of the collective agreement"; [u-~d also that "we are unable to conclude that tile period be~veen the expiry of Om im,',~mal posting :md date of the extern~ posting ~,'as sufficiently lengthy to Chad a viola~on of the agreement". 3'his takes us to the closing date of the extern~ posOng on October 25, 1994. At that tJme, the college had received 800 applicat/ons for the position, which were subsequently shortlisted to 10. Allowing even a minimal avt~rage tlnm of 1.0 n~mte$ t.o read and evaluate each one would require more thm~ 133 hours - the equivalent of 4 normal work weeks in addition to the reviewer's regular duties. Allowing time for the Ct~ristmas vacation, the college then made a deci$io]~ to re-orgm~ize the staffi_ng of the bookstore, and offered the position to Ms. Curmingham o~ .lan. 16, 1995. Since she was being asked to leave ,, management position m~d accept a union position, she was given a rea. sortable period of time to consider her options and make' her decision - which she did on February 2, 1995. l'lxere is no doubt that it took att unusually Ion8 d_me from when d~e vacancy occurred until it was actually filled, at~d one Can understand the concern of the union. But in my opinio~ t[ is cle~'u' in.this case that the delay was due to a variety of unexpected a~]d unusual circumstances, each of wl~icl~ was dealt with tn a timely ma_truer by the college. There is no evidence that the college attempted to delay acdon at any point in the procedure of posting and filling the vaca~cy. I would therefore have clisrnlssed the grievmme.