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HomeMy WebLinkAboutNichols 13-01-31 IN THE MATTER OF AN ARBITRATION UNDER SECTIONS 48 AND 50 OF THE LABOUR RELATIONS ACT, 1995. BETWEEN Trent University ("The Employer") AND OPSEU Local 365 (“The Union") Re: the grievance of Deb Nichols (“The Grievor”) OPSEU File # 2011-0365-0018 _____________________________________________________ BEFORE: Gerry Lee (sole arbitrator) APPEARANCES: For the Employer: Stephanie Williams, Associate Vice President of Human Resources; Dana Den Boer, Labour Relations Officer For the Union: Lesley Gilchrist, OPSEU Grievance Officer Rose Dunford, President OPSEU Local 365 A hearing in this matter was held in Peterborough on October 28, 2012. - 2 - AWARD 1. The Grievor in this matter has a seniority date of 1989 and is currently employed as a College Assistant – Traill College. The Grievor filed a grievance on October 17, 2011, alleging that the Employer has violated article 17 and Appendix VI of the collective agreement by incorrectly evaluating her position under the Trent University and OPSEU Joint Job Evaluation System. 2. The Grievor claims her position should receive an increase in eight of the ten factors described in the parties Job Evaluation Manual – • Analytical Reasoning, • Decision Making, • Impact, • Education, • Experience, • Responsibility for Work of Others, • Communication, and • Working Conditions. Accordingly, the Grievor claims that her position should be reclassified to the Band 9 pay level instead of the Band 6 pay level, a difference of $11.04/hour at the maximum of the respective grids. 3. The parties have a well-established Joint Job Evaluation Committee (JJEC) comprised of three employees who represent the union [Deborah Earle, Angela Sikma, and Ron Fox] and three employees who represent the employer [Kimberly Fleming, Kent Stringham, and Lynn Martin]. This committee met on January 25, 2011, to review the Grievor’s submission as to why she felt her position should be rated at a higher level. The submission outlined the substantive changes to the position since it was last evaluated on September 28, 2001. The changes included such matters as responsibility for graduate office allocations, swipe card management, key management, Bagnani Hall and Room - 3 - oversight, booking academic space, special project management, managing the college website, managing The Trend, and signage approval/proofing. The Grievor and her Supervisor, the Interim Principal of Traill College at the time, Leonard Conolly, attended the review session to answer any questions the JJEC had with regards to the submission. 4. After the review session, the JJEC decided unanimously that the scores for Impact and Working Conditions should be increased relative to other comparators in the system. However, the increase in factor scores was not sufficient enough to take the Grievor’s position to the next higher pay band. A letter was sent to the Grievor reflecting this outcome on February 1, 2011. 5. Shortly thereafter, the Grievor requested a meeting with Kim Fleming to understand the JJEC’s decision. Kim Fleming and Ron Fox, an experienced OPSEU JJEC member, met with the Grievor and Leonard Conolly on February 14, 2011 to explain the JJEC’s decision. Fleming and Fox explained that the JJEC did not see many of the changes outlined in the Grievor’s submission as impacting the scoring of her position. . 6. On July 26, 2011, the Grievor appealed the JJEC’s decision in writing. The Grievor requested that the JJEC review the following factors: Analytical Reasoning, Decision Making, Impact, Education, Experience, Responsibility for the Work of Others, and Communication. The Grievor also requested that her title change to reflect College Coordinator or College Administrator from her given title of College Assistant – Traill College. 7. On September 27, 2011, the JJEC met with the Grievor, her previous supervisor, Leonard Connelly and the Grievor’s new supervisor, Doug Evans to hear the Grievor’s appeal. The JJEC determined that the Decision Making factor score ought to be raised to a score of 3 Minus in order to reflect recognition of an increase in Decision Making. In addition, the JJEC also raised the Grievor’s score for the Impact sub factor to a 3 Minus to reflect that the Grievor’s position is responsible for booking academic space at Traill College. - 4 - However, this second increase in factor scores was still not sufficient enough to take the Grievor’s position to the next higher pay band. 8. On October 17, 2011 a grievance was filed by OPSEU and Ms. Nichols with respect to this matter. 9. The relevant sections of the collective agreement in this matter are as follows: 17.9 Appeals of Classification Reviews Within six (6) months of the meeting date at which JJEC’s decision was rendered under Article 17.7, an employee who claims his/her assigned job is improperly classified and that he/she should be properly classified to another classification named in Schedule B, may appeal the committee’s findings by presenting a request for review in writing to the Joint Job Evaluation Committee, c/o the Department of Human Resources. In the event that the appeals deadline falls on a non-working day, the deadline shall be considered to be the next working day. The written request must specify the classification claimed by the employee to be inappropriate together with those individual job factors which are being contested and the substantive basis on which the claim is advanced. Any changes from the original questionnaire should be included. The employee may also request to give a brief verbal submission to the Joint Job Evaluation Committee on the date of the joint review. The Committee will review the whole job, not just individual factors. Should the Committee make a change to a job factor; all other comparator positions will be reviewed to ensure pay equity compliance. The decision of the Joint Job Evaluation Committee will be communicated by the Department of Human Resources to the employee and the Local President, or designate, within fifteen (15) days of that meeting. The Joint Job Evaluation Committee shall be under no obligation to accept or respond to more than one (1) request for review of the same position within any twelve (12) month period. - 5 - Should the committee agree on a change in a job evaluation, the effective date of such change will be the date that the request for review is received in Department of Human Resources. 17.10 Band Increase (a) Employees reclassified to a higher band level shall be placed at a step level in the new band that represents as a minimum a one (1) step increase from the previous salary. (b) It is understood that there shall be no retroactivity payment, including any retroactivity awarded through arbitration, prior to the date of the receipt of the written request for review in Department of Human Resources. 17.11 Referral to Arbitration An employee who is in a position which has been subject to the procedures outlined in 17.9 above, and who is not satisfied with the decision of the Joint Job Evaluation Committee, may file a grievance directly in writing, within thirty (30) working days of the date of the JJEC decision, to an Arbitrator mutually agreed upon by the parties and copied to Department of Human Resources. The arbitrator may issue a decision in writing or by meeting with the parties at the next quarterly meeting, or at their earliest available date acceptable to the parties. A brief written notice of his/her decision will be issued within ten (10) working days of the hearing. The arbitration shall be limited to the consideration of those relevant facts submitted for review to the Joint Job Evaluation Committee. LETTER OF UNDERSTANDING Re: Article 17 – Job Classification This document is to clarify the process defined in Article 17.9 Classification Reviews, and Article 17.10 Referral to Arbitration, as agreed upon by the parties on January 14th, 2002. 1) Article 17.1110 states that, “An employee who is in a position which has been subject to the procedures outlined in 17.9 above, and who is not satisfied with the - 6 - decision of the Joint Job Evaluation Committee, may file a grievance directly in writing, within thirty (30) working days of the JJEC decision, to an Arbitrator mutually agreed upon by both parties and copied to Department of Human Resources …”. a) Once an employee receives and is not in agreement with the decision of the Joint Job Evaluation Committee, he/she may file a grievance directly to arbitration by completing a grievance form at the OPSEU, Local 365 office. b) The employee will have thirty (30) working days from the receipt of JJEC’s decision to file a submission. 2) As prescribed in 17.11, “The arbitration shall be limited to the consideration of those relevant facts submitted for review to the Joint Job Evaluation Committee.”, the submission may include any additional information given to the Committee during the review process. a) The grievance should be limited to the employee’s perceived misapplication of the Tool by the JJEC, and should not be a denigration of the joint process itself. b) Only those factors that are being contested, and the substantive basis on which the claim is advanced should be included. c) The grievance will be referred directly to the OPSEU office, where an OPSEU representative will refer the written submission to the Arbitrator. d) The Department of Human Resources will be copied on the submission and the application for Arbitration. e) An Employer representative will also submit a written submission explaining the decision of JJEC. This will be limited to those facts reviewed by the Committee, including any verbal submissions by the employee or their supervisor. 10. The Grievor’s position with respect to this matter is somewhat unique. In essence, the Grievor is disputing the findings of the six-member JJEC that includes three OPSEU local 365 representatives. This joint committee met to review the Grievor’s position and unanimously agreed to their findings during both their initial review and the subsequent appeal of the Grievor’s point score. Notwithstanding the lengthy experience of the management representatives on the JJEC, the OPSEU representatives on the JJEC have a combined total of nineteen years of job evaluation experience and have undertaken scores - 7 - of position reviews for this bargaining unit. The Employer, and for that matter the entire JJEC, are of the view that the JJEC acted in a fair and reasonable manner and are compliant with the relevant provisions of the collective agreement with respect to this matter. The Employer also stated that the JJEC has engaged in extensive discussions with the Grievor and her Supervisors beyond the requirements of the Collective Agreement in coming to a determination of the appropriate evaluation of the Grievor’s position. It is in this light that I am being asked to review the evaluation of the Grievor’s position. 11. It is trite to say that it is not an easy task for a third party to put themselves in the shoes of a well-established Joint Job Evaluation Committee and second guess their findings. This is especially so in these circumstances as the JJEC at Trent University is a vastly experienced committee that has literally evaluated scores of positions in the bargaining unit. Furthermore, this is not a case where the committee fundamentally disagrees on the point score for a particular position, or a slim majority of the committee favours a certain score over the wishes of the minority. Indeed, in this instance, the committee reached a unanimous decision on the two separate occasions when they evaluated the Grievor’s position. 12. I have no doubt that the Grievor is genuine in her belief that her job should be paid more based on her view of the duties and responsibilities that she performs for the Employer. However, it is not enough to look at one’s own position in isolation without carefully and systematically reviewing other comparators. Many employees in organisations point to others and genuinely believe that they should be paid the same or more without knowing exactly what that person’s duties and responsibilities are or the intricacies of a job evaluation system that has rated positions higher than their own. There are many guiding principles that apply to job evaluation but the need for consistency is critical in my view. One has to look at the overall structure of the organisation and ensure that jobs are compared relative to other positions in the bargaining unit in order to attain the desired high level of consistency. - 8 - 13. In conclusion, having carefully reviewed all of the information and documentation submitted by the parties and the Grievor, I am not convinced me that the score attributed to her position by the JJEC is sufficiently flawed for me to overturn their findings. In my view, the Grievor’s position has been evaluated systematically and objectively in relation to other positions and in accordance with the various factors described in the mutually agreed Job Evaluation Manual. Accordingly, the grievance is dismissed. Dated at Markham, Ontario this 3 1st day of January 2013. _______________________ Gerry Lee – Sole Arbitrator