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HomeMy WebLinkAboutKotowych 13-06-14 In the Matter of a Labour Arbitration pursuant to the Ontario Labour Relations Act Between: OPSEU PS 7JUN 1 4 20"3 Hamilton Reclional OffiC9 CANADIAN BLOOD SERVICES -and- ONTARIO PUBLIC SERVICE EMPLOYEES' UNION LOCAL 5103 Grievance of Helen Kotowych OPSEU File No. 2011-5103-0018 Arbitrator: Randi H. Abramsky Appearances For the Union: Christopher Bryden Counsel For the Employer: Sarah Eves Counsel Hearing: May S, 2013 in Etobicoke, Ontario, with arguments via conference call on June 4, 2013 AWARD The grievance in this case alleges that the grievor, Helen Kotowych, is performing the work of a higher-rated classification in violation of the collective agreement. The Employer, Canadian Blood Services ("Employer" or "CBS"), asserts that the grievor is properly classified. FACTS The parties agreed to the following facts, as set out in the numbered paragraphs: 1. The Grievor is classified as a Clerk in the Distribution Department at CBS's Brampton location. 2. She has been employed as a Clerk in Brampton since Feb. 21, 2012. 3. She worked as a Clerk at various CBS locations in Toronto from 19812012. 4. The parties are agreed that the Grievor spends the vast majority of her working time performing the duties which are"checked-off' on the attached job description,marked as Exhibit 2. 5. With respect to the activity"Prepare, post and amend staff vacation calendar", this refers to the Grievor keeping track of and recording staff vacation entitlements. The Grievor does not provide approval for vacation days. 6. The Grievor works in the Distribution Department and provides timekeeping or time-keeping-type duties for employees in that department. 7. There are approximately 60 - 65 employees in the Distribution Department, 8. In addition, the Grievor performs peer review of the daily time verification reports of Sudar Chandra, a Clerk who performs the same or similar functions in respect of the Production Department, which has 70 employees. Ms. Chandra performs per review with respect to the time verification reports that the Grievor prepares. 2 9. The Grievor takes the position that she performs substantially the same job as Sandra Alleyene, a Scheduler/Timekeeper in Toronto. The Employer disagrees. 10. The Parties are agreed that Ms. Alleyne does perform scheduling functions in respect to 6-8 employees in the Donor Testing department in Toronto,which has a total of approximately 70 employees. 11. The Grievor is of the understanding that Ms. Alleyne performs timekeeping work substantially similar to the work performed by the Grievor. 12. The Employer takes the position that Ms. Alleyne performs substantially more duties, including pre—populating scheduling templates; approving vacation days and days off, and approving shift changes. The Grievor does not agree with this characterization of Ms. Alleyne's duties. The job description for "Scheduling/Timekeeper" was created in May, 2008. The "General Summary" of the position states that "[u]nder the direction of the Supervisor, Donor and Clinic Services Support, the Scheduler/Timekeeper is responsible for planning and creating work schedules and completing associated scheduling and timekeeping functions that meet operational needs for Donor & Clinic Services." These functions must be done "in accordance with CBS policies, Collective Agreements, Non-Union Terms and Conditions of employment and in accordance with all regulatory requirements and Canadian Blood Services policies,procedures and practices." The job description lists six "responsibilities", as follows. An asterisk will mark the duties that the grievor asserts that she performs. Responsibility 1. Assess and plan staffing requirements. Activities: - Develop templates based on clinic staffing models for each clinic. - Assess human resources requirements and make recommendations to the appropriate Manager, as required. - Assign scheduled shifts to ensure collection goals are attainable and excellence in customer service is provided. 3 - Provide expertise, make recommendations on behalf of D & CS scheduling at Clinic Review and Clinic Scheduling meetings. Responsibility 2. Prepare, maintain and post work schedules for the department. Activities: Create work schedules based on templates and adjust to reflect changes in work processes,policies, and procedures. T Review shift change requests, gain management approval and update master schedule.* Verify quota balances for all staff and forward for management approval.* - Post weekly staff schedules in accordance with appropriate timelines for each functional area. Coordinate and schedule national and regional training and meeting requirements for all unionized staff. May be required to take minutes. - Communicate all clinic changes to staff. Responsibility 3. Performs timekeeping functions for department staff. Activities: - Enter planned time and exceptions in SAP.* - Prepare the payroll sheets, daily location reports for all staff on a daily bases. - Track, investigate inquiries and make adjustments on questionable coding, absences, scheduling concerns and entitlement balances.* - Review/audit all timesheets for accuracy.* - Submit ETLFs (exception time leave forms), payroll sheets, daily location reports by designated time. Responsibility 4. Arrange for accommodations for staff traveling to mobile clinics. Activities: - Book rooms for all Donor and Clinic Services staff requiring overnight accommodation. - Confirm and communicate accommodation arrangements with employees. Responsibility S. Performs other activities. Activities: - Conduct information sessions to new staff on payroll documentation, and administrative requirements within the department. - Prepare,post and amend staff vacation calendar. - Track actual versus scheduled hours.* 4 - Maintain/track logs for Saturday rotation, sick calls, replacement calls, turnaround time. - Prepare LHP calculation of daily hours worked for ESS entry. - Provide after hour sick replacement on call coverage. Attend timekeeper conference calls and meetings as required.* - Communicate with management in regards to confidential staff issues.* Perform other related duties as required. The Grievor is currently classified as a Clerk. The job description, which is contained in the collective agreement, states that the position "is responsible for clerical work." The "duties and responsibilities" include "some or all of the following responsibilities": 1. Compiles, types/keyboards, updates, files and maintains correspondence, reports, templates, manuals and statistical data. 2. Handles mail system (including build mail); opens and distributes mail. 3. Receives and direct all incoming telephone calls to appropriate person(s); takes messages. 4. Maintains various records systems. 5. Clerks hired to work in Collection/Donor Services department may be required to perform all of some of the duties as outlined in the Donor Services Representative job description with the exception of mobile clinics. 6. Performs receptionist duties. 7. Operators automated and other office equipment. S. Maintains and keeps records of requisition supplies; reports faulty supplies and equipment. 9. Prepares, scans and microfiches documents. 10. Coordinates, completes and updates work assignments, attendance records and staffing/volunteer schedules. 11. Coordinates the reporting and replacement of absent staff/volunteers; maintains relevant records. 12. Arranges alternate methods of transportation for staff; 13. Schedules fimetions/meetings and records minutes of meetings 19. Performs other department related tasks and duties as assigned. The relevant provisions of the collective agreement include the following: ARTICLE 30—POSITION DESCRIPTION 5 30.02 The Position Descriptions shall accurately reflect only those duties which arc applicable to all members of that position. 30.03 Any employee who is not required by her Centre's administration to perform all of the standard duties of her Position Description shall receive no reduction in her weekly rate of pay. 30.04 An employee cannot be required to perform duties which are not contained in his position description. 30.06 (a) If the Employer creates a new Position Description it shall establish the job description and wage rate and give written notice to the Union of the new wage rate. (b) If the Union objects within thirty (30) days of the receipt of the written notice from the Employer of the wage rate, such objection shall become the basis of a meeting between a representative of the Union and a representative of the Employer. Should such a meeting result in a revision to the wages, the wage rate shall be retroactive to the date of implementation of the new Position Description, unless otherwise mutually agreed. (c) Failing resolution of the objections, the matter shall be determined by arbitration. 30.07 Revisions to any of the Position Descriptions referred to in Article 30.01 may be proposed by the Employer (all four (4) Ontario Centres acting in concert) to the Union at any time during the term of this Agreement, provided that: REASONS FOR DECISION The generally accepted test for determining whether an individual is performing the work of another position or classification is whether s/he is "carrying out the functions that make up the `central core' of the other classification."Re Dominion Stores Ltd. and Retail, Wholesale & Department Store Union (1976), 13 L.A.C. (2d) 433 (Rayner). It is not enough if only certain functions are performed; rather the "essential duties of the higher classification" must be performed. Re Fairview Nursing Home 6 Ine.Ltd. and London and District Service Workers Union, Local 220 (1983), 9 L.A.C. (3d) 342 (Rayner). The onus is on the Union to establish this. Re Dominion Stores Ltd., supra; Re Fairview Nursing Home Inc. Ltd., supra; Re American Standard Products (Canada)Ltd. and United Steelworkers, Local 2000(1973), 2 L.A.C. (2d) 431 (Brown) The grievor, who is classified as a Clerk, asserts that she is performing a number of the duties of the Scheduler/Timekeeper position. The Union acknowledges that the grievor does not perform the job function of scheduling. Her duties involve the timekeeping aspects of the job, which in the Union's submission, go beyond the duties of a Clerk. It relies on Article 30.04 of the collective agreement, which states that "[a]n employee cannot be required to perform duties which are not contained in his position description" and Article 30.03, which states that "[a]ny employee who is not required by her Centre's administration to perform all of the standard duties of her Position Description shall receive no reduction in her weekly rate of pay." The Union asserts that these provisions demonstrate that the grievor need not perform all of the duties of the Scheduler/Timekeeper job, and that her duties must fall within the position description which, it asserts,is the Scheduler/Timekeeper position description. The Employer contends that the grievor performs none of the scheduling duties, which it asserts are the "central core" of the position and the basis of its higher rating. It argues that while she performs "timekeeping" duties, she does not perform all of them, and in its view, the timekeeping duties that she performs fall within the Clerk duties, as outlined in the Clerk Position Description. The Employer submits that there is an overlap 7 between the timekeeping duties of the Scheduler/Timekeeper position and the Clerk position, but that does not place her in the higher classification. Considering the agreed facts and the case law provided, I conclude that the grievor does not perform the "central core" duties of the Scheduler/Timekeeper position. The Scheduler/Timekeeper position description sets out one position — not two separate jobs, and it is undisputed that the grievor performs no scheduling duties. The "General Summary" of the position states that the position "is responsible for planning and creating work schedules and completing associated scheduling and timekeeping functions that meet the operational needs for Donor & Clinic Services." The schedules must be in accordance with Employer policies and procedures, collective agreements, non-union terms and conditions of employment and all regulatory requirements. The Position Description then sets out five "responsibilities" — (1) assess and plan staffing requirements; (2) prepare, maintain and post work schedules for the department; (3) perform timekeeping functions for department staff; (4) arrange for accommodations for staff traveling to mobile clinics and(5)perform other activities. The grievor performs no duties in the first area of responsibility. The activities listed include developing templates based on clinic staffing models for each clinic; assessing human resources requirements and making recommendations to management; assigning scheduled shifts to ensure collection goals are attainable and excellence in customer service is provided; and providing expertise, snaking recommendations on 8 behalf of donor and clinic services schedule at Clinic Review and Clinic Scheduling meetings. In terms of the second area of responsibility — prepare, maintain and post work schedules for the department — the grievor performs two of six listed activities. She "[r]eviews shift change requests, gain management approvals and updates the Feaster schedule." She also "verifies quota balances for all staff and forwards for management approval." She does not "[c]reate work schedules based on templates or adjust to reflect changes in work processes, policies or procedures." She does not "[p]ost weekly schedules in accordance with appropriate timelines for each functional area." She does not "[c]oordinate and schedule national and regional training and meeting requirements for all unionized staff." Responsibility 3 — performs timekeeping functions for department staff-- is the responsibility that the grievor performs three of five listed activities. She "[e]nter[s] planned time and exceptions in SAP." She "[t]rack[s], investigate[s] inquiries and make[s] adjustments on questionable coding, absences, scheduling concerns and entitlement balances." She "[r]eview[s]/audit[s] all time sheets for accuracy." She does not"[p]repare the payroll sheets, daily location reports for all staff on a daily basis." She does not "[s]ubmit ETLFs (exception time leave forms), payroll sheets, daily location reports by designated time." 9 In regard to Responsibility 4 — arrangement for accommodations for staff traveling to mobile clinics—the grievor performs neither of the listed activities. In regard to Responsibility 5 — performs other activities — the grievor performs four of the nine listed activities. She "[t]rack[s] actual versus scheduled hours", she "[p]repare[s], post[s] and amend[s] staff vacation calendar[s]," This, according to the agreed facts, refers to keeping track of and recording staff vacation entitlement. She does not approve vacation dates. She "[a]ttend[s] timekeeper conference calls and meetings as required" and "[c]ommunicate[s] with management in regard to confidential staff issues." She does not "[cjonduct information sessions to new staff on payroll documentation, and administrative requirements within the department." She does not "[m]aintain/track logs for Saturday rotation, sick calls, replacement calls, turnaround time." She does not "[p]repare LHP calculation of daily hours worked for ESS entry." She does not "[p]rovide after hour sick replacement on call coverage." As is evident, she performs some, but does not perform many of the duties of the position. In Re Regional Municipality of Waterloo (Sunnyside Home) and London and District Service Workers' Union, Local 220 (1978), 20 L.A.C.(2d) 77 (Roberts), the arbitrator explained the rationale behind the "central core" standard as follows, at pp. 81- 82 [citations omitted] Under settled principles of arbitration law, an employee does not have to perform all of the duties of a higher rated category .... The employee must perform the central core of the duties of the higher category. The cases indicate two reasons for applying this standard. First, few if any employees in a job category or classification perform on a day-to-day basis all of the duties assigned to that classification. There may be occasional or seasonal duties, or there may be variations among the duties actually performed by different 10 employees occupying the same classification, In each case,however, there will be a central core of duties or functions demanding the same level of qualification, skill and experience on the part of each employee in the classification. This brings us to the second reason for adherence to the central core principle. The reason is one of fairness. "It is simply unfair for two employees who are doing the same kind of work, perhaps even working together, to be paid substantially different rates where no differences in skill are exhibited." The arbitrator further stated at p. 82, that in determining what constitutes the "central core of the duties of a job classification", the following should be considered: The central core of duties of a higher category must be defined sufficiently narrowly to reflect "the reasons for differences in rates [i.e., the] basic differences in the distinctive skill, responsibility, difficulty, training etc. involved in the respective jobs"... Otherwise, arbitration boards would run the risk of intruding upon the legitimate management function of creating job classifications which reflect requirements of differences in skill etc. .... Or, as Arbitrator Knopf succinctly stated in Re Disabled and Aged Regional Transit System and C.U.P.E. Local 5167 (Cristiano Grievance)(2006), 86 C.L.A.S. 73, at par. 17: "One of the best ways to determine what the core duties are is to look at the reason for the difference in rates between the positions in question." In regard to the Scheduler/Timekeeper position, the core duties that make it a higher rated position appear to be responsibility for "planning and creating work schedules." There is a significant amount of judgment and knowledge that goes into that function — knowledge of human resource and staffing requirements for the clinics and donor service centres as well as knowledge of a range of policies and procedures, collective agreement requirements, and nonunion terms and conditions of employment. Creating work schedules and developing templates for clinic staffing to ensure collection 11 goals and customer service involves skills and abilities that are markedly more difficult and demanding than the timekeeping aspects of the position. Errors in scheduling can have significant consequences—it can lead to insufficient or over-staffing, poor customer service as well as grievances and disputes. There is no question that the grievor performs some of the timekeeper functions listed on the Scheduler/Timekeeper job description, though not all of them. But because she performs none of the scheduler duties — which form the core duties and the basis for the higher classification— she does not meet the onus for establishing that she should be classified in the higher position. Article 30.03 does not assist the Union in its contention that the grievor's duties in timekeeping should be paid at the Scheduler/Timekeeper rate. Article 30.03 states that "[a]ny employee who is not required...to perform all of the standard duties of her Position Description shall receive no reduction in her weekly rate of pay." This provision is a recognition that an employee may not perform all listed duties on a daily basis. This provision protects an employee from any reduction in pay in that circumstance - if all of the standard duties are not performed. It does not require the Employer to pay an employee who performs some of the duties of a position—but not the core functions — at the higher rate. As stated by Arbitrator Raynor in Re Fairview Nursing Home Inc. Ltd. and London and District Service Workers Union, Local 220 (1983), 9 L.A.C. (3d) 352, at par. 6: It is not satisfactory that the employee simply establish that he or she has done certain job functions in the higher-rated classification. It is also well established 12 that if job functions are common to two or more classifications, the fact that the employee carries out those particular job functions, does not, a fortiori, bring that employee within the higher-rated classification. Instead, the "employee must bring himself or herself within the `central core' of the job functions of the higher-rated classification." The case law recognizes that there is often an overlap in job duties between positions. Re Ivaco Rolling Mills and U.S.W.f4., Local 7940(Campbell Grievance)(2002), 104 L.A.C. (0) 126 (Bendel); Re Municipality of Metropolitan Toronto and G U.P.E., Local 43 (1984), 13 L.A.C. (3d) 248 (Swan). In this case, however, the Union contends that the timekeeping functions performed by the grievor exceed those of a Clerk. It relies on Article 30.04 of the collective agreement which states; "An employee cannot be required to perform duties which are not contained in his position description." The Union asserts that because the timekeeping duties that the grievor is required to perform exceed those of a Clerk, the principle of quantum meruit, as established by Arbitrator Shime in Re Ontario Hydro and C.U.P.E., Local 1000 (1983), 11 L.A.C. (3d) 404, should apply. In Re Ontario Hydra, the arbitrator determined that duties required of the grievors did not fall clearly into either classification suggested by the parties. The work required did not meet the "core duties" of the higher-rated position, but extended beyond (and not merely incidental to) their normal classification. In that situation, the arbitrator determined that the principle of quantum meruit—that a person should be paid what he or she reasonably deserves — should apply, and remitted the matter to the parties to 13 determine the amount of compensation. The Union cited one other case that applied this principle. Re Commonwealth Plywood Co. and United Brotherhood of Carpenters and Joiners of America, Local 2000 (Beauchamp Grievance) [1998] O.L.A.A. No. 958 (Roach) The Employer strongly opposes this alternative approach, citing a number of decisions which either outright reject it, or treat it with caution. Re Cargill Foods and U.F.C.W., Local 633 (1996), 43 C.L.A.S. 463 (Bendel); Re South Bruce Grey Health Centre and OPSEU, Local 275 (2008), 173 L.A.C. (4'h) 83 (Rayner); Re Diagnostic Services of Manitoba and Manitoba Association of Health Care Professionals (Schroadter) (2009), 100 C.L.A.S. 248 (Korpesho). It also argues that the collective agreement provides a detailed process in Article 30 for the introduction of new positions, and asserts that in light of such contractual provisions, it would be inappropriate to resort to a quantum meruit approach. For the following reasons I determine that a quantum meruit approach is not appropriate in this matter. The approach requires a determination that the duties required of an employee exceed those in his or her own classification. With respect, I cannot make that determination here. In my view, all of the timekeeper duties performed by the grievor fall within one, or more, of the listed Clerk duties. The "review shift change requests, gain management approval and update master schedules" and`verify quota balance for all staff and forward 14 for management approval" falls within#10 coordinate, complete and update attendance records and schedules. "Enter planned time and exceptions in SAP" falls within ##4 - maintain various record systems, as well as #1 — updates and maintains reports and templates. "Track, investigate inquiries and make adjustments on questionable coding, absences, scheduling concerns and entitlement balances" falls within #10 and #11 -- coordinates, completes and updates attendance records and schedules; coordinates the reporting and replacement of absent staff, maintain relevant records. "Review/audit all timesheets for accuracy" also falls within #10 and #11. "Track actual versus scheduled hours" falls within #1 — compiles reports. "Prepare, post and amend staff vacation calendar" falls within #10. "Attend timekeeper conference calls and meetings as required" falls within #19 — performs other department related tasks and duties as assigned. Finally, "communicates with management in regard to confidential staff issues" falls within #11 — coordinates the reporting and replacement of absent staff. Consequently, I cannot agree with the Union's contention that the Clerk position description does not include the grievor's timekeeping duties. I also cannot agree that to so construe the Clerk position description would deprive the timekeeping aspects of the Scheduler/Timekeeper of any real meaning. There are specific references in the Clerk job description to coordinating, keeping and updating attendance records and schedules. As noted, the case law recognizes that duties often overlap more than one position. The timekeeping tasks assigned to the grievor fall within the area of overlap between the duties of Scheduler/Timekeeper and Clerk. Re Ivaco 15 Rolling Mills, supra; Re St. Mary's Cement and C.A.W.-Canada, Local 222 (2009), 183 L.A.C. (4t) 170 (Devlin). There is no question that the duties and responsibilities of the Clerk position are broadly worded-- and necessarily so given the type of enterprise that is CBS. There are undoubtedly many clerk positions, working in various departments in various capacities, doing a variety of things. The key is whether the work is predominantly clerical work. In very large part, the grievor's work is predominantly clerical. This is not to imply that there is no judgment or skill involved in her duties, or the exercise of discretion. There most certainly is judgment, skill and discretion required, but for the reasons expressed above, I conclude that her timekeeping duties fall within the job description of Clerk. Finally, although facts were presented concerning Ms. Alleyne, the Union did not raise an argument concerning her in closing. The facts, however, show that although there is similarity between much of what Ms. Alleyne and the grievor do, Ms. Alleyne does more. Significantly, the parties agreed that she performs scheduling duties. She may do so for a relatively small group — some 6 to 8 employees. But that fact distinguishes the duties of Ms. Alleyne from those of the grievor. Those scheduling duties are a legitimate basis for the Employer to classify Ms. Alleyne as a Scheduler/Timekeeper. 16 CONCLUSION For all the reasons set out above, the grievance must be dismissed. Issued this 14th day of June, 2013. /s/ Randi H. -4bramsky Randi H. Abramsky, Arbitrator 17