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HomeMy WebLinkAboutUnion 18-11-26in the Maliter of an Arbitration Between: Algonquin College -and- 0 PS E U, and- 0PSEU, Local 415 (2015-0415-0044 ) For the College Keela Podetr, Counsel Shaun Barr. Acndemic Chair Construction Trades and Building S%--N'tems Erin Langevin, _'acting, Director Labour Relations Helen Huang, Meting Labour Relations Specialist For the tin ion Wassim Garzouzi, Counsel Pat Kennedy, Local President J. P. Lamarche, Chief Steward David Haley, First Vice -President Tracy Henderson, Steward I- The parties agree that l have jurisdiction to hear this matter. This matter was beard in Ottawa by way of agreed statement of facts, which are reproduced below, on October 24, 2016, October 3, 2018 and on November 14, 2018. Agreed Statement of Facts — 148 • George Rothschild provided no€icy of his retirement as a full-time professor from the Cabinetmaking and Furniture Technician Program, by leder dated May 8- 2015 [E IIIBiT I]. r George Rothschild date of retirement was June 30, 2015. The Union's tiled Grievance No. 15A48, dated June 17, 2015 [EXHIBIT 2] Collective Agreernent in place at the time was in effect September 1, 2014 to September 30, 2017 [EXHIBIT 31 • The College issued its reply by letter dated September 14, 2015 [EXF11 BIT 4]. • The Union's particulars were prowded by email dated October 19.7016 [MiIBiT 5 This matter was scheduled for hearing for October 24, 201 a The College issued a Faculty Recruitment Strategy and Schedule for Fall 2015 ("Posting Schedule"} to all managers in early 2015 [EXH1BlT 61 • Shaun Baa was the Acting Chair of the Cabinetmaking and Furniture Technician Program at the time of George Rothschi td's retirement. Mr. Barr understood the Posting Scbednle to contain mandatory timelines, ■ Mr. Barr did not post a full-time position for Pall 2015 because George Rothschild had provided his notice after Else posting period had closed, however the College in the response to the Union's grievance acknowledged that the posting for fall 2015 fell oumide the faculty recruitment campaign for 2015,E sic] however the College expected to post and fill the position for August 2016- 2. Should ft College have posted George Rothschild's position alter he provided notice of his retirement as a full-time professor from the Cabinetmaking and Furniture Technician Program, by letter dated May 8, 2015? 3. On June 17, 2015 a grievance was filed requesting that the College post and fill a number of vacancies for positions formerly held by various faculty members. On September 14, 2018 the College in response to the grievance and the step meeting of August 31, 2015 explained the circumstance of each facuhy member. In respect of George Rothschild, the College said the following, "retirement notice vans provided in June, after the faculty recruiting campaign for 2015; position cxpected to be posted and filled for August 2016. 4. George Rothschild's position was never posted, in short, this decision is about the interplay between Article 27:11 A (postings) and Article ( (Management Functions) of the collective agreement. Of particular note, the College accepted that there had been a vacancy in the position formerly held by George Rothscbild and that the expectation was that the position, although outside the parameters of the faculty recruiting campaign for 2015, would be posted for the fall (2016). 5. Article 27:11 say's the following: Postings 27.11 A Notice will be posted in the Cotlege of all vacancies of full-time positions in the bargaining unit. Such notice will be posted for at least five working days. At the same time, notice of these vacancies will be sent to the Union Local President and shall be forwarded to the electronic Central Registry, maintained by the Council, wbere the notice shall remain posted for at least five working days. [website: http:llontaria ollegeemployment.cal. 27.11 B Notice will be posted in the College of a]1 vacancies of full-time positions in the bargaining unit. Such notice will be posted for at least five working days. At the same tkne, notice of these vacancies -Ai 1l be sent to the Union 1 oval President and shall be forwarded to the electronic Central Registry, maintained; by the Council, 2 where the notice shall rernain posted for at least five working days. [Website: http:l/ontaric}C'ol1egaempto ment.cal. Where a vacancy of a full-time position in the bargaining unit mcuts and is not filled internally, the College will give consideration to applications received from academic employees laid off at other Colleges before giving eonsideration to other external applicants. For the purposes of this article, full-time and current partial- load employees or persons Aho have been partial -load employees v4ithin four months prior to the posting shad be considered internal applicants. Such consideration sball be given for up to and including ten working days from the date of posting as described in 27,11 A. 6. Article 6 says the fallowing- ANAGEMENI- FUNCTION 6.01 It is the exclusive function of the Colleges to: (i) maintain order, discipline and efficiency; iii) hire, discharge, tr-ansfer, classify, assign, appoint, proffwte, demote, lay off, recall and suspend or otherwise discipline employees subject to the right to lodge a grievance in the manner and to the extent pmvided in this Agreement; (iii) manage the College and, XVIthout 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 frorn time to time, the number and location of campuses and facilities, services to be performe& the scheduling of assignments and work, the extension, limitation, curtailment, or cessation of operations amd all other rights and responsibilities not specifically modified elsewhere in this Agreement_ 6.02 The Colleges agree that these functions mill be exercised in a manner consistent with the provisions of this Agreement. 7_ Arbitrator Parriar had occasion to opine on the interplay of section 6.01 and 27.11 Ain an unreported decision, Sault College v, Ontario public Service Frnployees Union, )vocal 613 dated May 18, 2016. In short, Arbitrator Pamar concluded at page 5 of the decision, "that the obligation to post a full-time position did not override or remove the employer's right to assign work in accordance with its managerial rights. In that regard 1 concur_ 8. These facts arc distinguishable from the decision noted above in that the College put the Union on notice that it had an expectation of posting George lothschild's position in the Fall of 2016. In that regard l note that in the College's September 14, 2015 response, the College refers to the vacant position of Christine Wgjcik and indicates the following, -_this position continues to be vacant~ pending a review of the credential requirements relative to the new Bachelor of Early Learning & Development degree program {Fall 2016)-" to the response to Wojcik, the College exercised its management functions and was not prepared to post until a review was completed. I have no further information about the Wojcik posting. 9. In my view. the position is vacant at the moment a full time employee permanently vacates the position. When that happens. the College may exercise its management functions ar d determine if it will post the position. 10. In the George Rothschild vacancy, the College signaled that it was posting the vacancy in the Fall of 2016. At some point, the College changed its view, however the decision to post had alrwdy been made. f have no evidence before me that the Coliege communicated a change of view to the Union. The Union Aw entitled to rely on the College's response. The vacancy should have been posted in the rail of 2016. 11. I find that George Rothschild °s position was vacant as of June 30, 2015 and declare that the College, having not communicated to the Union othcm ise, should have posted the position for the Fall of 2016. 12.1 renvt this decision to the paTties so they may deal with remedy, 111 am seized of the application. interpretation. implementation and any rernediai aspect of this Decision. Dated in Toronto this 26' Day of November 2019 4 J s B. Bloch Arbitrator E!