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HomeMy WebLinkAboutUnion 98-08-07 HEADNOTE GSB NO: N/A OPSEU NO: 95A865/96C744 LOCAL NO: 109 OPSEU LOCAL 109 (Union Grievance) - and - FANSHAWE COLLEGE OF APPLIED ARTS AND TECHNOLOGY Decision Dated: August 7, 1996 Arbitrator: Jane H. Devlin Keywords: pay; lead-hand premium Summary: Issue(s): Whether Support Service Officers Atypical at payband 10 are entitled to Lead Hand premium. Held: Grievance dismissed. Facts: The Board found that the functions set out in the Lead Hand definition in the CAAT Support Staff Job Evaluation Manual were included in the Position Description Form ("PDF") for the grievors. As a result, they were not entitled to the Lead Hand premium which was intended to compensate employees for additional duties beyond their regular classification. The Board also rejected an estoppel argument which would have prevented the College from discontinuing the long-standing practice of paying the premium as there was no finding of detrimental reliance. I~ THE I~TTER OF ~ ~RBITI~TION BETWEEN: FANSHAWE COLLEGE - and - ONTARIO PUBLIC SERVICE EMPLOYEES UNION UNION POLICY GRIEVANCE AND GROUP GRIEVANCE RE LEAD HAND PREMIUM BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR JACQUELINE G. CAMPBELL COLLEGE NOMINEE JON MCMANUS UNION NOMINEE APPEARANCES FOR THE COLLEGE: Robert J. Atkinson Sheila Wilson APPEARANCES FOR THE UNION: R. Ross Wells Jean Crawford Louise Watts OPSEU FILE NO.: 95A865 & 96C744 HEARING DATE: MAY 31, 1996 1 There are two grievances before the Board, the first of which is a policy grievance and the second, a group grievance filed by Joanne Pietens and Donna Zoccano, both of whom work in the Registrar's Office and are classified as Support Services Officers ("SSO") Atypical at payband 10. The grievances concern the right of Ms. Pietens, Ms. Zoccano and other SSO's in the Registrar's Office to the Lead Hand premium provided for in Article 7.6 of the collective agreement. This Article appears in the agreement as follows: 7.6 Lead Hand Premium Where the College determines that it is required, a Lead Hand may be designated within a work group, giving due consideration to the ability, qualifications required for the position and seniority, in making the appointment. Where the College assigns an employee to Lead Hand responsibilities, the employee shall be entitled to a premium in the amount of seventy-five (75) cents per hour over his/her then current classification rate for all hours worked during such assignment. It is understood and agreed that ~Lead Hand assignments shall not be applicable to employees i~ the classifications listed below where the job duties and rate currently reflect Lead Hand responsibilities: Nurse B; Early Childhood Education Worker B. The premium shall be payable for all hours worked but shall not form part of the employee's straight time hourly rate for the purposes of overtime or other premium. Subsequent to the execution of the collective agreement, the parties entered into a Letter of Understanding dated September 20, 1993 whereby they agreed to amend Article 7.6 by deleting the penultimate paragraph of the Article. They further agreed that in future, employees in the classifications 2 of Nurse B and Early Childhood Education Worker B would be paid the Lead Hand premium consistent with the application of Article 7.6 to other employees. The Lead Hand definition contained in the CAAT Support Staff Job Evaluation Manual is as follows: IV - LEAD HAND DEFINITION The Support Staff Collective Agreement provides for a premium to be paid to an employee who has been designated by management to be a lead hand. Management also has the right to withdraw the premium when circumstances no longer warrant the payment of such a premium. The Lead Hand function involves assigned responsibility for two or more employees. A Lead Hand is not a supervisor, but is involved mainly in passing supervisor's instructions to members of work group, explaining new projects and assignments and normally includes other duties as follows: 1. Allocating daily work assignments, according to established methods and procedures, and establishing priorities as required. 2. Laying out work, indicating sequence of work processes; showing employees who to do tasks when difficulties arise; checking completeness and accuracy of finished tasks; keeping supervisor informed of work progress. 3. Explaining office routines, work procedures, use of equipment or machinery, safety procedures and regulations, explaining precedents and past decisions. 4. Recommending changes to existing work methods and procedures. 5. Reporting on attendance. The Registrar's Office is divided into five program areas consisting of Admissions, Customer Service and Fees, Adult Training/Systems, Records and Registration. There is one SSO 3 assigned to each area with the exception of Admissions to which both Ms. Pietens and Ms. Zoccano are assigned. SSO's are involved in co-ordinating the programs within their respective areas and in carrying out this function, they direct the work of a number of clerical staff. Within the Admissions area, Ms. Pietens and Ms. Zoccano are responsible for the admission of students to designated College programs and presently provide direction to four full- time clerical staff. While Ms. Pietens acknowledged that there have been changes in the Registrar's Office over the years, including a reduction in the number of management personnel, she testified that there has been an ongoing requirement to direct the work of clerical staff. In this regard, she testified that she and Ms. Zoccano carry out all of the Lead Hand functions contained in the Lead Hand definition set out above. In particular, they allocate work assignments to clerical staff; explain procedures; conduct spot checks of completed work assignments; advise their supervisor of work progress; recommend changes in work methods; and monitor staff attendance. The Position Description Form ("PDF") for Ms. Pietens (which is substantially similar to that of Ms. Zoccano) also makes reference to duties exercised in relation to clerical staff as well as the requirement to recommend changes to existing work procedures. In this regard, the material provisions of the PDF are as follows: A. POSITION SUMMARY Reporting to the Assistant Registrar, the incumbent is responsible for the admission/selection of students to designated College programs and for the effective operation of the Admissions Team which includes six full-time and several part-time employees. Administers relevant policies and procedures as well as recommending modifications and improvements to same. B. DUTIES AND RESPONSIBILITIES Approximate % ******************************** of Time Annually Directs the work of the Admissions staff to ensure 20% that deadlines are met by establishing an on-going schedule of activities and tasks and ensuring staffing levels are adequate. Direct and redirect the work among the full and part-time staff to meet both office and College priorities. Conducts interviews, hires and assigns the work of part-time staff. C. SKILL 3. COMPLEXITY a) Plans and co-ordinates staff training program for Admissions team. b) Effective development and execution of admission plan each year which also provides for a contingency plan, assigning of priorities, recommending changes to admission procedures, revising admission forms/letters and the realignment of staff to ensure timely delivery of admission decisions and procedures. 4. JUDGEMENT a) meeting challenging deadline dates by implementing a plan of action which may include realignment of staff, duties and processes in order to meet objectives. E. RESPONSIBILITY Incumbent is free to proceed with day-to-day tasks and prioritize own work as well as the work of others. 5 Incumbent is able to make independent decisions. 10. ~OMMUNICATIONS/CONTACTS D = Daily W = Weekly M = Monthly I - Infrequently Nature of Contact Purpose Freq Co-workers Performance of duties D Human Resources Staff hiring I As to the College's practice with respect to payment of the Lead Hand premium in the Registrar's Office, the evidence indicates that Ms. Pietens began work in the Office in 1980 at which time she was classified as a Clerk 4 General at payband 7. In 1981, she was assigned certain responsibilities for other clerical staff as a result of which she began to receive the Lead Hand premium provided for in the collective agreement. In 1986, a new classificati6n system was introduced and under that system, Ms. Pietens was classified as an SSO B at payband 9 following which she continued to receive the Lead Hand premium. Thereafter, in 1992, Ms. Pietens filed a grievance claiming that she was improperly classified. That grievance was heard by Arbitrator Springate who determined that Ms. Pietens ought to be classified at the level of SSO Atypical at payband 10. Following the release of Arbitrator Springate's award, Ms. Zoccano was similarly reclassified. It should be noted that at some point, Ms. Zoccano also began to receive the Lead Hand 6 premium although it is not clear precisely when this occurred. In any event, at no time did the other SSO'S in the Registrar's Office, who continued to be classified at the level of SSO B, receive this premium. As a result, in late 1994, the Union filed the policy grievance which is now before the Board claiming that those employees were also entitled to payment of the premium. Subsequently, in the spring of 1995, a member of management in the Registrar's Office requested that all SSO positions in the Office be reviewed by a classification committee which is comprised of three members of management, one of whom is Sheila Wilson, a Human Resources Consultant. As a result of that review, the committee recommended that the four employees classified at the level of SSO B be reclassified to SSO Atypical at payband 10, which was the classification held by Ms. Pietens and Ms. Zoccano. The reclassification of these employees was retroactive to September 1, 1994. The committee also recommended that payment of the Lead Hand premium to Ms. Pietens and Ms. Zoccano be discontinued. Ms. Wilson testified that this recommendation was made as a result of the fact that the job duties which attract the premium are included in the PDF's of Ms. Pietens and Ms. Zoccano and are evaluated for classification purposes as a consequence of which payment of the Lead Hand premium was considered to be redundant. Accordingly, in August, 1995, Ms. Pietens and, presumably, Ms. Zoccano were advised by 7 their Supervisor that payment of the premium would be discontinued and they ceased to receive the premium effective April 1, 1996. As to payment of the Lead Hand premium to other employees, the Union introduced a document which indicates that three employees who are classified as SSO's are in receipt of the premium. One of these employees is Pat Vansickle, who is classified as an SSO B and whose PDF includes responsibility for recruiting, training and scheduling part-time support staff. In respect of Ms. Vansickle, Ms. Wilson testified that the Manager of Human Resources requested that a review of all Lead Hand assignments be undertaken and that payment of the premium to Ms. Vansickle has not yet been reviewed. It was the submission of Mr.. Wells, on behalf of the Union, that payment of the Lead Hand premium to Ms. Pietens and Ms. Zoccano over a period of many years constitutes an admission on the part of the College that the premium is properly payable under Article 7.6 of the collective agreement. Mr. Wells further contended that payment of the premium is justified on the basis that Ms. Pietens and Ms. Zoccano carry out Lead Hand functions ~ beyond their responsibilities in relation to clerical staff which are set out in the PDF. In the result, Mr. Wells asked that in respect of the group grievance, the Board find that Ms. Pietens and Ms. Zoccano are entitled to payment of the Lead Hand premium under the collective agreement or, in the alternative, that the College is estopped from discontinuing payment of the premium. In respect of the policy grievance, Mr. Wells requested a declaration to the effect that SSO's are not precluded from receiving the Lead Hand premium provided that the circumstances warrant payment of the premium. It was the submission of Mr. Atkinson, on behalf of the College, that the duties in respect of which Ms. Pietens and Ms. Zoccano claim entitlement to the Lead Hand Premium are included in their respective PDF's; evaluated f6r classification purposes and reflected in their rate of pay. Accordingly, Mr. Atkinson contended that there can be no entitlement to the Lead Hand premium provided for in Article 7.6 as the premium is intended to compensate employees for duties performed in addition to those set out in the PDF. Moreover, although it was conceded that the College paid the premium to Ms. Pietens and Ms. Zoccano for a number of years prior to the spring of 1996, Mr. Atkinson submitted that there was no requirement to do so and that the elements of estoppel have not been made out. In any event, the College provided the Grievors with ample notice that payment of the premium would cease which effectively brought any estoppel to an end. In the result, Mr. Atkinson asked that the grievances be dismissed. 9 The first issue to be determined, then, is whether Ms. Pietens and Ms. Zoccano are entitled to payment of the Lead Hand premium under the collective agreement. In this regard, Article 7.6 provides where the College determines that it is required, a Lead Hand may be designated within a work group and the employee so designated is entitled to a premium of 75 cents per hour over his or her current classification for all hours worked during such assignment. Lead Hand functions, which are contained in the Lead Hand definition set out above, include duties such as allocating and explaining work assignments and procedures; checking the accuracy of finished tasks; reporting on attendance; and recommending changes to existing work methods. The relationship between the Lead Hand premium and the duties of an employee's regular classification was considered by the Board in Fanshawe College and Ontario Public Service Employees Union January 31, 1990 (Brown (unreported)). In that case, the Grievor who worked in the text book area of the bookstore, claimed that she was performing the functions of a Lead Hand for which she was entitled the premium payable under Article 7.6. In rejecting her claim, the Board commented as follows: Taking the requirements of the grievor's position description along with the lead hand definition and having regard to the requirement of its designation by the College of a lead hand in order to require the payment of the lead hand premium under Article 7.6, it is clear that the evidence in this matter does not 'support the grievor's 10 claim. A premium over and above a regular classification rate is obviously meant to compensate for additional duties or responsibilities than requiredl in the classification and is subject to the terms which the parties place in their agreement for the application of such wage premiums. Where as here, the regular job duties are described in the position description encompass the very responsibilities relied on by the employee to establish an addition to the regular wage rate unless Management has taken a positive step to designate the employee in a position of lead hand, we find that has not been a de facto designation as argued by the Union established as a requirement for such designation does not exist. The responsibilities for which such a premium would attach, have been covered by the parties in the grievor's job description. Having reviewed the evidence before us, the Board finds that the duties and responsibilities relied on by the grievor to support her claim for the premium do not exceed her job description to the extent that she would reasonably fall within the lead hand definition so as to conclude that she was acting in fact as a lead hand although not being so designated by Management in the book store or within her department. Paragraph 2 of the definition requires the assigned responsibility for employees. The evidence establishes that Management did not assign the responsibility of any employees to the grievor other than on those occasions when she was specifically designated by the College as a lead hand when Mr. Chipps was absent from work. All of the other responsibilities which were referred to in the evidence, which the grievor performs, are fully contained in our view within the parameters of the position description and are responsibilities for which she is paid under her present classification wage rate. While Mr. Wells submitted that the Fanshawe College award is distinguishable as in this case, the College actually designated Ms. Pietens and Ms. Zoccano as Lead Hands, nevertheless, based on that award, it was conceded that the Lead Hand premium provided for in Article 7.6 is payable only in respect of duties beyond those of the employee's regular classification. In this case, Mr. Wells contended that Ms. 11 Pietens and Ms. Zoccano perform a number of Lead Hand functions which are not set out in the PDF and, in this regard, he submitted that the PDF makes no reference to conducting spot checks of completed work assignments or monitoring the attendance of clerical staff. Accordingly, Mr. Wells contended that the Lead Hand premium is payable for the performance of these functions. As indicated above, the PDF for Ms. Pietens contains a number of references to her duties in relation to clerical staff. In this regard, the PDF provides that she is responsible for the effective operation of the admissions team and, among other matters, directs and redirects the work of clerical staff; ensures that staffing levels are adequate; plans and co-ordinates staff training programs and interviews, hires and assigns the work of part-time staff. As well, the PDF provides that Ms. Pietens is responsible for recommending changes to existing procedures, revising forms and realigning staff to ensure the timely delivery of admission decisions. While the PDF admittedly makes no explicit reference to conducting spot checks or monitoring attendance, in the Board's view, these duties are encompassed by the requirement to direct and redirect the work of clerical staff and to ensure that staffing levels are adequate. In the result, the Board finds that the functions set out in the Lead Hand definition are 12 included in the PDF of both Ms. Pietens and Ms. Zoccano. As a result, they are not entitled to the Lead Hand premium under Article 7.6 as that premium is intended to compensate employees for additional duties beyond those of their regular classification. Nevertheless, there was no dispute that the College paid the Lead Hand premium to Ms. Pietens and Ms. Zoccano for a significant period of time during which they were classified as SSO's. In these circumstances, therefore, it is necessary to determine whether the College is estopped from discontinuing payment of the premium. The doctrine of 'estoppel applies where one party, by its words or conduct, represents to the other that it does not intend to rely on its strict rights under the agreement. Where the other party acts on that representation to its detriment, the party that made the representation will be precluded from reverting to its strict rights as if the representation had not been made. In this case, we find that the College's practice in paying the Lead Hand premium to Ms. Pietens and Ms. Zoccano for a significant period when they were classified as SSO's and their classification encompassed responsibility for directing the work of clerical staff and recommending changes to work procedures constitutes the necessary representation to support the application of the doctrine of estoppel. As to the matter of 13 detrimental reliance, Mr. Wells contended that based upon the College's practice, the Union filed a grievance claiming that other SSO's in the Registrar's Office were also entitled to the premium. Mr, Wells further contended that as a result of that grievance, the College undertook a review of SSO positions in the Registrar's Office which caused it to discontinue payment of the premium to Ms. Pietens and Ms. Zoccano. Had the Union realized that the grievance would have that effect, Mr. Wells submitted that it would not have been filed. As indicated previously, in order for the doctrine of estoppel to apply, the party to whom the 'representation is made must act upon that representation to its detriment. In this case, the detriment is said to exist not in the action taken by the Union which involved the filing of the policy grievance but rather in the College's response to that grievance. In the Board's view, however, the fact that the policy grievance may have caused the College to review and ultimately discontinue payment of the premium to Ms. Pietens and Ms. Zoccano cannot constitute detrimental reliance on the part of the Union for purposes of the application of the doctrine of estoppel. In the result, we cannot conclude that the College was precluded from discontinuing payment of the Lead Hand premium to Ms. Pietens and Ms. Zoccano in the spring of 1996. 14 As to the claim in relation to other SSO's in the Registrar's Office, the Board heard little regarding their duties and, in fact, the Union acknowledged that it was not pursuing a remedy for these employees. As requested, however, we note our agreement with the Union that the SSO classification does not automatically disentitle an employee to payment of the Lead Hand premium. Instead, the inquiry in each case must be directed to whether the employee performs Lead Hand functions which are beyond the duties of his or her regular classification. In the result, for the reasons set out, the grievances are dismissed. DATED AT TORONTO, this 7tt~ay of August , 1996. Chair "Jac~ueline G. Campbell" College Nominee "I Dissent - Jon McManus" Union Nominee