[1995] OLRB Rep. January 9
1959-94-JD Board of Governors of Algoma University College, Applicant v. Algoma University College Staff Association and Algoma University College Faculty Association, Responding Party
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members R. M. Sloan and H. Peacock.
APPEARANCES: Scott Williams, Patricia Burt and Susan Scott for the applicant; Michael Wright, Mark Stevenson, Penny Tyrrel and Sheila Turkington for the Algoma University College Staff Association; Kevin Banks, Dr. Krishna Kadiyala and Bob Moore for the Algoma University College Faculty Association.
DECISION OF THE BOARD; January 18, 1995
This jurisdictional dispute complaint filed pursuant to section 93 of the Labour Relations Act ("the Act") was filed with the Board on September 2, 1994.
Pursuant to section 93 (1.1) of the Act the Board considered the complaint, consulted with the parties and conducted an inquiry into the matters raised by the complaint on January 11, 1995. At that time the Board found it unnecessary to entertain viva voce evidence. Each of the parties filed extensive, thorough and detailed briefs and written submissions which clearly articulated the issues in dispute, the evidence each viewed as relevant with respect to those issues, and the arguments each party proposed to advance in support of their respective positions. In addition, on January 11, 1995 legal counsel on behalf of each of the parties made oral submissions to the Board. In so doing counsel referred to the pleadings and submissions as filed together with arbitrable jurisprudence and the Board's own decisions. Given the depth of the pleadings we do not consider it necessary in this decision to set out in detail the issues in dispute or the relevant evidence. Similarly it is unnecessary to write at length about the criteria generally considered by the Board in resolving jurisdictional dispute complaints. These criteria are now well established. (See for example, Pioneer Manor - Home of the Aged, [1993] OLRB Rep. May 447 at paragraph 15 and the cases referred to therein)
Having carefully considered the pleadings and submissions of the parties, and upon application of the criteria generally considered in complaints of this nature we have concluded that the work in dispute, namely:
Reference activity:
Sitting at the reference desk, particularly at the following times:
Monday, 10:00 a.m. to 12:30 p.m.;
Tuesday, 12:30 to 2:30 p.m.;
Wednesday, 3:00 to 4:30 p.m.;
Thursday, 4:30 to 8:30 p.m.; and,
Conducting Library tours for the University's students.
has been properly assigned by the applicant employer, Board of Governors of Algoma University College ("Algoma" or "the Employer") to members of both the Algoma University College Staff Association ("the Staff Association") and members of the Algoma University College Faculty Association ("the Faculty Association").
In our view the work in dispute, although "normally performed" by members of the Staff Association, is not work which has been exclusively performed by members of the Staff Association. The work in dispute is also "normally performed" by members of the Faculty Association. There is a clear overlap in jurisdiction and a reasonable, legitimate, and competing claim to the work in dispute by both the Faculty Association and the Staff Association.
The librarians who are members of the Faculty Association have in the past, and continue at present to provide "reference services" to library patrons. Staff Association members also provide those reference services. Members of both Associations have conducted tours of the library for students attending Algoma, community groups, etc. Although over the years the location of the provision of reference services may have changed (i.e. from separate areas in the Library staffed by members of either or both the Staff Association and the Faculty Association to the current central "reference desk"), the nature of the work in dispute i.e. providing reference services has not changed. The employer's own past practice (and the predominant practice of other academic institutions throughout the province) is to have "reference work" and library tours performed or conducted by members of both the Staff and Faculty Associations.
The present scheduling of librarians who are members of the Faculty Association to work at the "reference desk" two hours a week, four days a week, is substantially similar in terms of the nature and/or quality of the work as the reference work performed in the past by the Head of Technical Services or Head of Public Services (librarian positions within the Faculty Association's bargaining unit) and the reference work which at present the librarian may continue to do on a daily basis, i.e. Faculty Association members may respond to reference inquiries from library patrons, whether those are placed at the "reference desk" or not. The only change which has occurred is that Faculty Association members are now scheduled to take their turn sitting at the reference desk to provide the same type of reference services that they have provided in the past, (and the same type of front line reference services which Staff Association members also provide while sitting at the reference desk).
We have considered the fact that for the past several years only Staff Association members have staffed the "reference desk". We do not however consider that fact to be determinative of this matter given the additional circumstances which existed. During this period of time, for budgetary reasons, the Head of Public Services' position remained unfilled. As a result there was not a Faculty Association member in the library able to provide reference service. Mr. Chin (Head of Information Services) the other Faculty Association member is physically challenged. In order to accommodate him the Employer has temporarily removed reference services from his responsibilities. During this interval therefore, and while the Faculty Association position remained unfilled, the Employer did not have a qualified professional librarian (Faculty Association member) in place to staff the "reference desk". Nonetheless, the Employer has in the past, and continues at present, to require the services of a qualified professional library whose duties include, inter alia, the provision of reference services and conducting library tours. That position, and that need has now been met with the hiring of a professional librarian to fill the Co-ordinator of Information Services' position. From Algoma's perspective it has always been important to have such a professionally qualified person on staff to provide such services. For a period of time financial exigencies prevented it from filling the vacant Head of Public Services' position with a professional librarian. It has now, in effect remedied that situation by its creation of a (downgraded) Co-ordinator of Information Services' position in the Faculty Association bargaining unit.
Finally, even if one characterizes the provision of "front line reference services" as an identifiable set of duties attributable to Staff Association members, that same identifiable set of duties is also attributable to the classification of librarian in the Faculty Association's bargaining unit — the duties are not exclusive to members of the Staff Association. Members of either Association may have additional duties and responsibilities to perform, but insofar as reference services or conducting library tours are concerned their duties and responsibilities (although clearly identifiable) are indistinguishable from each other and common to both bargaining units. Thus, when the librarian who is a Faculty Association member performs the work in dispute he/she is performing work that is part of his/her normal duties. He/she is not performing work that "belongs" exclusively to the Staff Association bargaining unit. Rather, he/she is performing work that is normally performed by members of either Association.
On balance, having regard in particular to the collective agreement claims of both Associations to the work in dispute, the past practice of this employer, the "area practice" of other employers, and the factors of economy and efficiency, we confirm the employer's assignment of the disputed work referred to in paragraph 3 herein, to members of both the Faculty Association and the Staff Association.