HomeMy WebLinkAboutMorgan 89-03-25Concerning an arbitration
Between: 8 8A6 2 3
Local 137
St. Clair College
CAAT (S)
and
Ontario Public Service Employees Union
Grievance of J..Morgan, job posting
Board of Arbitration
J. W. Samuels, Chairman
A. S. Merritt, College Nominee
J. D. McManus, Union Nominee
For the Parties
Union
K. Hughes, Counsel
J. Morgan, Grievor
S. Siddall, Local President
S. Sharon, Chief Steward
L. Medler, Steward
College
W. Kenny, Counsel
D. Lauzon, Director, Labour Relations
J. McGuire
P. McFarlane
C. Libby
Incumbent
B. Toop
Heatings in Windsor, October 4, 1988, January 9 and 31, 1989
1
In October 1987, the grievor, Jill Morgan, applied for two posted
positions of placement officer in the College's Employer Assisted
Programs. She was unsuccessful and she grieves that the College violated
Article 17.1.1 of the collective agreement and that the College's decision
not to select her was in bad faith and discriminatory.
There were three applicants from the bargaining unit Betty Toop,
Doug.Queen and the gfievor. Toop and i~ueen were selected.
Article 17.1.1 of the collective agreement provides:
17.1.1 Consideration- Bargaining Unit
Employees
When a vacancy in the bargaining unit occurs
and employees within the bargaining unit make
application for such vacant position, the College
will give proper consideration to the qualifications,
experience, and seniority of all applicants in rela-
tion to the requirements of the vacant position.
Notwithstanding the foregoing, where there is no
increase in the complement of bargaining unit
employees in the Department within which the
vacancy arose, the College may forego posting
and fill such vacancy by appointing a qualified
bargaining unit applicant from the Department.
The grievor's claim with respect to this provision is that the College
did not "give proper consideration to the qualifications, experience, and
seniority of all applicants in relation to the requirements of the vacant
position".
The College says that none of the applicants met the required
qualifications for the positions. The College then argues that, once it is
determined that none of the bargaining unit applicants meets the job
requirements, it is unfettered in its exercise of its management rights to
.transfer, assign, and appoint employees. The College selected Betty Toop
t
and Doug Queen to be trained for the positions.
The College acknowledged that, if, after determining that none of the
applicants met the required qualifications, it continued to be obligated to
"give proper consideration to the qualifications, experience, and seniority
of all applicants in relation to the requirements of the vacant position", it
2
could not distinguish between the candidates and the grievor would have to
be selected on the basis of her greater seniority (three more years than
Queen and nine more than Toop). This acknowledgement makes it
unnecessary for us to determine whether the grievor would have to be
selected if the College was obligated to "give proper consideration", but we
will note that...we-:-may have concluded that the grievor should--'hhVe'
succeeded for more reason than her greater seniority. In other words, in
the absence of this acknowledgement by the College, we might have
decided that the gdevor was the preferable candidate when all the factors
were considered qualifications, experience and seniority.
Thus we are left with two issues. Firstly, whether the grievor did
meet the required qualifications for the posted positions. And, secondly,
whether or not, once the College has determined that none of the
bargaining unit applicants meets the requirements of the job, the College is
unfettered in its exercise of its management fights to transfer, assign, and
~ppoint employees.
With respect to the allegations of bad faith and discrimination, the
grievor claims that, because of her active role as Local Union President
from 1980 to 1986, and her involvement in that capacity with Mr. J.
McGuire, who is the Manager of Employer Assisted Programs and who
conducted the second set of interviews with the applicants, Mr. McGuire
and the College did not select her. Suffice it to say that there was no
substantial evidence to support these allegations whatsoever. The grievor
had a "feeling" that Mr. McGuire was biased against her, but admitted she
had no concrete evidence to support her feeling. We will say no more
concerning this part of the grievance.
We will look first at the posted positions.
3
The Employer Assisted Programs are a part of the College's
provincially-sponsored Youth Employment Counselling Centre and
"Futures" Program. Together, the Centre and "Futures" are intended to
assist disadvantaged youth to prepare for the workplace and to find gainful
employment., through career counselling, pre-employment preparation and
job placement. .... - .................
The placement officer assists in assessing and placing severely
disadvantaged youth in suitable positions, seeks employers willing to
participate in the "Futures" Program, and handles related tasks.
In its posting, the College said that applicants must have one year of
experience in conducting pre-employment group workshops, developing
training plans, placement, interviewing and assessment. As well, the
incumbent would have a diploma or degree in a relevant field of study.
In our view, after hearing the evidence of Ms. T. McFarlane, the
Manager of Community and Career Consultative Services at the College's
Thames Campus in Chatham, who supervises the placement officers there,
these requirements are reasonable. The placement officer ought to have at
least a year's experience in order to adequately serve the client youth and
the employers involved. And the education requirement is desirable to
ensure that the incumbent has an adequate background knowledge.
These requirements are reasonable though, in postings for similar
positions in the past, the College did not ask specifically for one year's
experience and a degree or diploma. In the past, postings mentioned
"appropriate experience" or "at least one or two years experience in a
similar role". And, with respect to education, the postings spoke of
"appropriate post secondary education" or "formal training in one of the
social sciences". In our view, the greater precision in the job posting
involved here is not a significant change in the College's statement of
qualifications for the position of placement officer.
4
None of the three applicants met the required qualifications with
respect to work experience and education.
In particular, the grievor had no placement experience. She had
been in the employ of the College since 1970, working as a telephone
coordinator for sixteen years, with two brief additional positions as an
instructor in a~ evening-course"~on'~eollecli-~ b~a~g~ihiiig and a~a part-time
professional development liaison Officer identifying professional
development needs for support staff. In 1986, she became an employment
counsellor in the Youth Employment Counselling Centre. By the time of
the posting in issue here, the grievor was just completing her training for
her counselling job. This job involves social counselling to disadvantaged
youth (to assist them to identify social or personal barriers to employment
and to develop practical action plans to overcome these barriers), and
employment counselling (to assess the vocational interests, skills and
abilities of the youth and to help them develop realistic career plans and
effective job search skills). The counsellor helps prepare the client youths
for placement by the placement officer.
With respect to the educational requirement, by the time of her
interview for the positions, the grievor was very close to completing her
work for a Certificate in Social Welfare at the College. The Certificate is
not the equivalent of a degree or diploma, however it is all that the College
required the successful applicants to achieve after their selection.
Therefore, in our view, the grievor had met the educational requirement.
Betty Toop had been in the College's employ since 1979, and had
spent virtually all of her time as a payroll clerk. She had some very
limited placement experience while in a temporary part-time joi> for about
12 weeks in 1985. She had taken some courses in management
development, including human relations, but was far from a degree or
diploma. She does have a tremendous desire to be a placement officer.
5
Doug Queen came to the College in 1972 and was a technician in the
Athletic Department, running intermural programs, coaching, and doing
some teaching. He had no placement expefience. He did have a Bachelor
of Arts in Honors English and was a graduate of the Business-Marketing
Program at St. Clair College, which in combination seem to meet the
education requirement-for the-two pos-itions, ~ ~After-his~Ae~ionrheLstayed
in the placement officer position for one day and decided it wasn't for him.
We come to the central issue in this case whether or not, once the
College has determined that none of the bargaining unit applicants meets
the requirements of the job, the College is unfettered in its exercise of its
management fights to transfer, assign, and appoint employees.
The first point to be made is that the answer to this question depends
on the language of the particular collective agreement. And in this regard,
there appear to be two types of posting clause. Some collective agreements
give applicants from the bargaining unit rights only if they meet the
requirements of the job, in which case, once it is determined that no
bargaining unit applicant meets the requirements of the job, management is
unfettered in its exercise of its rights to transfer, assign, and appoint
employees. Other agreements give bargaining unit applicants fights among
themselves, whether or not the applicants meet the requirements of the job,
in which case, if none meets the requirements of the job but management
decides to select one of the unqualified applicants, management must chose
the best of the bargaining unit applicants. We will look at examples of each
type.
An example of the latter type is found in Re Bank of Montreal,
Tweed Branch and Commercial Workers Union, Local 486 (1982), 6 LAC
(3d) 289 (Canner), wherein Article 6.03 of the collective agreement
provided:
6.113 For the purpoae of laosting a "Regular Full time" pozition within the
bargaining unit, the following factora shall be considered.
~'(a) ability, skills and performance;
6
'. (b) Seniority.
In the event the factors outlined in (a) above are relatively equal among two
(2) .~r more employees; then (b), Seniority shall govern.
Neither bargaining unit candidate was qualified and the employer argued
that this meant that it could choose whomever it wanted, unfettered by the
constraints imPoS6fl-by-Article 6.03: The learned arbitrator said, however
(at page 293):
We have difficulty with this
argum~t. It is' widely recognlzecl' that provisions such as art. 6
are in,haled to allocate promo~io.nhl opportunity acco~ing to two
criteri~-~_ _--.relative.. ability andl s~niority. Yet if one accepts the
employer's argument it would 'mean that a candidate' might have
both g~"eater relative ability and'.'- greater seniority yet the job
conill t~ awarded to another c.andidate simply because neither of
the 'cAndidates reeL.the ideal, q~alifications established by the
empI'oY~.r. While it.wouid be qtlite.reasonable for an employer not~.
to awa$~d the job at all in such ~irc'fimstances, it is quite a different'
mat(er~o award the job to anotl~e~!less senior emPloyee where the
relat~v~,quahficat~ons of the gunevor are superior or even equal. In
our op.i~ion, such a result would be inconsistent with the intent
and pu~ose of the type of senigrit'y provision found in art. 6.03 of
the coll~i:tive agreement.
In other words, Article 6.03 govemed the selection process so long as the
Company was choosing between bargaining unit applicants.
On the other hand, an example of the type of post~ng clause which
gives fights to employees only if they are qualified for the job is found in
Re Corporation of the Borough of $carborough and Canadian Union of
Public Employees, Local 545 (1977), 14 LAC (2d) 210 (Schiff), where
Article 17.0 of the collective agreement provided:
17.0 When vacancies occur or new positions are created, such shall be posted on
the bulletin boards, ___access_ to which shall be available to all employees of the
bargaining unit, such posting clearly indicating the minimum qualifications re-
quired. When two or more candidates for any position are found to have the
minimum required qualifications as stipulated in the posting, departmental
seniority shall then become the first consideration in the selection of an appli-
cant to fill the position. Consideration shall then be given to other applicants in
a~ordanee with the minimum qualifications required and their ualt-wide zen-
Here candidates have rights only if they "are found to have the minimum
required qualifications as stipulated in the posting". Therefore, the
arbitrator held that the senior applicant had no right to the job unless she
could meet these minimum qualifications (at page 219).
Another example of--the-~first-.-type---of--etause-(~whereunder.,,aa
employee only has rights if he meets the requirements of the posted
position) is found in Boots Drug Stores (Canada) Ltd. and United Food and
Commercial Workers' Union, Local 206 (unreported decision of Samuels,
dated January 28, 1986), where Article 15.02(a) of the collective
agreement gave any full-time employee, who had notified the Company of
his wish to be considered for promotion, the right to preferential
consideration "provided that he has the necessary skill, ability experience
and qualifications". It was held that, under such a provision, if no
bargaining unit employee meets the necessary requirements, "the Company
has its basic managerial right to fill the position as it wishes, from outside
or inside the bargaining unit" (at page 5).
In Re Northern Telecom Canada Ltd. and Communications Workers
of Canada (1984), 17 LAC (3d) 181 (Beck), the arbitrator considered the
Bank of Montreal case and drew the distinction we are making here. He
pointed out that, in the Bank of Montreal case, the collective agreement
provided that seniority would govern if the candidates were relatively
equal, whereas in the case before him "The prior condition is that of being
qualified". He said (at page 191):
I have eonsidered the decision of Professor Carter in Re Bank
of Montreal, Tweed Branch and Commercial Workers Union,
LoeoJ $86 (1982), 6 L.A.C. (3d) 289. It is important to note that in
that case the relevant term of the collective agreement spoke of
candidates being "relatively equal" in which case seniority shall
8
govern. The terms of the collective agreement here do not refer to
relative equality. The prior condition is that of being qualified.
The decision was that Heintzberger was not qualified and, as I
have said, that was a reasonable decision in the circumstance.
That being the case, the Company was then free to choose another
unqualified but junior employee to train. It is important to note
that in the Bank of Mo~t?al case, Professor Carter did not agree
that the company was freed from the restraints of th~ seniority
clause when it made the decision that neither employee was
qualified. But that decision was made in the context of a relative
ability clause where the company was choosing an employee to
train who is a "less senior employee where the relative qualifica-
tions of the grievor are superior or even equal" (at p. 293).
Professor Carter held that such a result would be inconsistent
with the intent and purpose of the seniority provisions of the
collective agreement. Professor Carter specifically held (at p. 294)
that the union had established that the ability of the grievor "was
at least relatively equal" to that of the employee given the job.
Those facts are not our case and the collective agreement here is
significantly different.
In our view, Article 17.1.1 of the College collective agreement is
akin to the agreement in the Bank of Montreal case. Article 17.1.1
provides that the College will give proper consideration to qualifications,
experience, and seniority, "when a vacancy in the bargaining unit occurs
and employees within the bargaining unit make application for such vacant
position". It does not say that this applies only if the applicants meet the
minimum reqUired qualifications. It does say that the qualifications,
experience and seniority will be considered "in relation to the requirements
of the vacant position". That is to say that qualifications and experience are
only relevant to the extent that they relate to the requirements o~ the vacant
position. An applicant's qualifications and experience may fall short of the
minimum required, but nonetheless they may relate to the requirements of
the vacant position.
9
If none of the internal applicants meets the requirements of the
position, the College is free to reject them all and to go outside the
bargaining unit. This is confirmed in Article 17.1.1.1 which reads:
17.1.1.1 Notification-Applicant
All applications will be acknowledged and all
.................... applicants~vho am interviewed -will be. notified-
of the outcome of their application. The Col-
lege 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 consider applicants from outside this
bargaining unit until ~{ has assessed internal
applicants and notified them of the results.
But if the College decides to select one of the unqualified bargaining
unit applicants and to train that person, it must continue to "give proper
consideration to the qualifications, experience, and seniority of all
applicants". There is still a vacancy to be filled in the bargaining unit, and
there are bargaining unit employees who have applied for the position.
The collective agreement does not impose an obligation on the College to
select an unqualified applicant and to train that applicant. But the
agreement does impose obligations on the College concerning the selection
of a candidate from any group of internal applicants.
Counsel for the College argued that it made good sense for the
College to select Ms. Toop to be trained for the placement officer position,
because if the grievor was selected' the College would have to train two
people...the grievor as a Placement officer, and the grievor's replacement
in the counselling job. Our answer to this argument is that, while it might
have made "good sense" to select Toop, the selection had to be done
according to the collective agreement and the selection process was
constrained by Article 17.1.1, which is a provision mutually agreed by the
parties to the collective agreement.
10
Furthermore, counsel for the College argued that it did not make
sense that, in order to keep the grievor in her counselling job, the College
should have to hire a placement officer from outside the bargaining unit.
Again, we make no judgment on the "sense" of the situation. The parties
have spoken in their collective agreement and it is simply our job to
interpret what the~-have s-~iid.~In 'b-~r-vi~vC~Arti~T~S~I7.~.I 'ari'd 17:1~1.~
are clear.
In conclusion, we find that, once the College has determined that
none of the bargaining unit applicants meets the requirements of the job,
the College is not unfettered in its exercise of its management fights to
transfer, assign, and appoint employees. The College must continue to
"give proper consideration to the qualifications, experience, and seniority
of all applicants in relation to the requirements of the vacant position".
This being the case, the College acknowledges that the grievance should
succeed.
The gdevor is to be placed in the position for which she applied.
This is a lateral transfer for the grievor, and therefore we make no
order concerning compensation.
11
We will remain seized concerning any matter related to the
implementation of this award upon which the parties are unable to agree
themselves.
Done at London, Ontario, this 2~/~ day of /~,t.e~ , 1989,'
~ amue'ls, ~2hairman
A. S. Men'itt, ~ege Nominee
$. D. McManus, Union Nominee
D I SSEI.IT
With all due respect to my colleagues on the 3oard, I find that ~
in this case, I must respectfully dissent from the opinion of the majority.
At the outset, let me say that I, agree with a g~e~¥d'e'~:l'~O¥~wha~ ...............
the majority award contains, especially with the finding of the majority that
there is no substance to the allegations of bad faith and discrimination
on the part of the College towards the grievor.
It also seems accurate to say that the greater Dredision in the
langauage of the job position did not represent a material chan~e in the
Co]lege's position regarding the requirements of the job. Nor is there
in mv mind any doubt (particularly, given the testimony of Ms McFarlane),
that not one of the candidates was fullv qualified for the oosition. Al!.
of the candidates were deficient in one wav or another.
Furthermore, I agree that once it has been determined that none
of the candidates is qualified, then the College may, according to
Article 17.1.1.1 of the Collective Agreement, consider applicants from
outside the bargaining unit for placement in the position.
However, it is with the conclusions that are drawn from these and other
facts that I must disagree. The majority has argued that when the College
found that none of the candidates was qualified, it could indeed have
selected a person or persons from outside the bargaining unit] This would
have fulfilled the College's obligation to "give proper consideration to
the qualifications, experience, and seniority of all applicants in re-
lation to the requirements of the vacant Oosition." (Article 17.1.1)
However, the majority goes on to argue that when the College did
not go outside the bargaining unit's ranks to select a candidate, but
instead staye~insi:de the"ba~g~:ihing"~nit~and ~6~ec~e~ ~ro~e'6f"%he
unqualified candidates, it must still give proper consideration, etc.
to those candidates as if they were qualified under the existing criteria.
With this reasoning, I cannot agree. The College is required
by the language of the Collective Agreement to give "proper consideration
to the qualifications, experience, and seniority" only in relation to
the requirements of the vacant position. This is indeed what it did do.
In so doing,.the College found that none of the candidates had proper
qualifications for the position. This has been agreed upon by all con-
cerned. The College believed that once it had examined each candidate
using the agreed criteria and found no one ~uallfied, it had fulfilled
its obligations under Article 17.1.1 and was free to hire whomever it
wished.
It found further support for this position in the Collective
Agreement, namely in Article 3.1 which reads as follows:
The Union acknowledges that it is the
exclusive function of the Colleges to:
-- hire, discharge, transfer~ classify,
assign ... promote ... employees subject ~
to the right to lodge a grievance as
provided for in this Agreement.
Article 3.1 gives to management, subject to certain restrictions in the
Collective Agreement, the right to hire, promote, etc. Where'%he
restrictionsdonotapply, as in theinstantsituation, Article 3.1does. Thus,
in this case, management, having fulfilled its obligation under Article
17.1.1, now has the right to do what Article 3.1 savs it can do -- hire
and promote as it best sees fit. And .this is exactly what it did .i~,,?? ................
instant case. Having ascertained that it was no longer fettered by ^rticle
17.~.~, it made what it considered a reasonable appointment.
The majority, for' its part in interpreting Article 17.1.1, relies
on the decision in Re Bank of Montreal Tweed Branch and Commercial I~orkers
Union Local 486 (1982) 6 L.A.C. (3d) 289,'(Carter). This case is clearly
distinguishable frOm the language in the Collective Agreement before us.
Article 6.03 in the Bank of Montreal case makes no mention of the ability
skills and performance of an applicant being considered in the context of
the qualifications of the job. In contrast, this Collective Agreement
requires that the College consider the qualifications, experience and
seniority of an applicant only "in relation to the requirements of the
vacant position." In my opinion, the only appropriate meaning to 2e given
to this phrase is that the applicants must meet the minimum qualifications
for the vacant position in order for her rights of selection to app!¥ and
this interpretation becomes more compelling when one recognizes that the
general jurisprudence in this area ·recognizes that normally employees
can only claim a right to a position if they are qualified. For examole,
the arbitrator in the Boots Drug Store case indicates on page 5'
Indeed, no internal candidate for the position
did have the qualifications. In this situation,
the Company has its basic managerial right to fill
a position as' it wishes, from outside or inside the
bargaining unit. The jurisprudence is clear, on this
point and we agree with it -- see Re Liquid Carbonic
Canada Limited and United Steelworkers of
America Loca! 12998 (1976) 12 L.A.C. (2nd)
222, (l~eatherill), at 223 and Re Corporation
of the Borough Scarborough and Canadian Union
of Public Employees, Local 545 (1977) ~4
~.A.C. (2~)'210, (Schiff), at 219 .........
Given this general view, it is my opinion, that the Collective
Agreement would require clear'language in order to negate the normal
expectations 6f the parties. 'To the contrary, this Collective Agreement
refers specifically to the requirements of the position.
:""~."'.:.~"I~ addition,"1% Is ~ery~.unus~a~for a'coll'ective agreement to re-
quire the employer to train an individual for a position. Normally,
an employee must have the present ability to perform the job she is
seeking. (See Brown and Beatty, Canadian Labour Arbitration,'-parag~aph
6:3230). Again, clear language to the contrary would be necessary in
the Collective Agreement to negate this general management right which
flows from the management rights clause. Ilo such obligation is
specifically found in this Collective Agreement. Yet, the majority
interpretation requires the College to train the internal appl.icant who
comes closest to the necessary qualifications, if it decides to select
a candidate internally. Had the parties intended such a result, I
suggest that very clear language, obligating the College to provide, such
training, would have been included. ~i%h respect, such an o~ligation
cannot be read into Article 17.1.1. In fact, bv considering the
applicants "in relation to the requirements of the vacant position",
the clause has the opposite implication.
In the light of this thinking, the College made a most reasonable
appointment. I~hy was' it reasonable? Because tile majority, for its
part, felt that if the College selected the grievor, then it would
have to train both the grievor and the person who uould'replace her,
but really, all was necessary was to promote Ms Toop to the position and
leave the grievor where she was, since it ~las, for her, just a lateral
transfer, not a promotion. In this way, the College would not have to
go outside the bargaining un1% and ~ring in an outside ~erson with t!le
resultant disruptions that could be inherent in such a situation. This
seemed to the College %0 make eminent good industrial labour sense;
consequently, that's exactly what it did.
Therefore, since the College acted at all times in good faith
and in a reasonable manner, and since it did give proper consideration
to the qualifications, experience, and seniority of all applicants in
relation to the requirements of the vacant position and found that
none was qualified, I would have found for the College and dismissed
the grievance.