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HomeMy WebLinkAboutElliott 93-11-29IN THE MATTER OF AN ARBITRATION BETWEEN: ALGONQUIN COLLEGE (the "College") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the "Union") AND IN THE MATTER OF A GRIEVANCE OF WILLIAM ELLIOTT (OPSEU -93C192) SOLE ARBITRATOR: lan Springate APPEARANCES For the College: Janet Ross, Manager, Employment and Classification Keith Galloway, Manager, Plant and Energy Christine St. Jean, Manager, Personnel ServTices For the Union: France Picciane, Chief Steward Local 416 Aril Jensen, Vice- President Local 416 William Elliett, Griever HEARING: November 15, 1993 in Ottawa AWARD PRELIMINARY MATTERS This award relates to an expedited classification arbitration conducted pursuant to the terms of a collective agreement between the Ontario Council of Regents for Colleges of Applied Arts and Technology and the Ontario Public Service Employees Union. Article 18.4.3.6 of the collective agreement provides that an expedited arbitration is to be informal and that legalistic processes normally used in conventional arbitrations are not to be used. The Article indicates that legal counsel are generally not to be used at a heating and that if a party is to be represented by counsel the other side is to be notified of this fact at least 10 days prior to the heating. Article 18.4.3.4 provides that each party is to provide certain written information and written submissions to the arbitrator, and to the other party, at least 14 days prior to the heating. The article stipulates that no written submissions or materials are to be considered at the hearing that have not been provided in conformity with this requirement. The Union submitted a written brief prior to the 14 day deadline. The College also provided a written brief. It did so, however, only four days prior to the hearing. On receiving the College's brief Mr. Franco Picciano, the Chief Steward of the Union's Local 416, telephoned myself and Ms. Janet Ross, the College's Manager of Employment and Classification. He advised us that in his view the College's brief was inadmissible at the hearing and should not be considered. Mr. Picciano formally stated this position at the commencement of the heating. Ms. Ross indicated that following Mr. Picciano's phone call to her, she had been in contact with legal counsel. She requested that the issues relating to the admissibility of the College's brief be referred to a three person arbitration board. Article 18.4.4 of the collective agreement provides that an arbitrator in an expedited arbitration proceeding may refer a grievance to an arbitration board. Proceedings before such a board are generally conducted in accordance with normal arbitration procedures. Ms. Ross indicated that at a hearing before an arbitration board the College would be represented by legal counsel and she would be a witness conceming the late filing of the College's brief. Ms. Ross stated that in the absence of legal counsel she was not prepared to state what the College's position would be at such a hearing, although at one point she did indicate that it related to a conversation she had with u union official. Mr. Picciano opposed referring the matter to an arbitration board. He contended that the collective agreement makes it clear that any written material filed after 14 days prior to a hearing cannot be considered at an arbitration hearing. The collective agreement clearly states that written submissions are not to be considered at an expedited arbitration heating if they have not been provided to the arbitrator and the other side at least 14 days prior to the heating. The case law, however, indicates that the equitable doctrine of estoppel may foreclose a party from relying on the strict wording of a collective agreement. This would be the case if it had represented to the other party that it would not insist upon strict compliance with the agreement, and the other party relied on that representation to its detriment. Given this consideration, I concluded that it was appropriate for the College to be provided with an opportunity to put forward its position with respect to the late filing of its brief. I also concluded that Ms. Ross should be provided an opportunity to arrange for legal counsel to represent the College, particularly since she proposed to be a witness in the proceedings. Because the collective agreement provides that legalistic processes are not to be employed in an expedited arbitration, and it appeared that the issues to be raised by the College would be legalistic in nature, I also concluded that it would be appropriate to refer the issues raised by the Union to an arbitration board. After I made an oral ruling to this effect, Mr. Picciano stated that the Union was prepared to withdraw its opposition to my considering the written brief filed by the College. He requested, however, that my award refer to what had occurred. Ms. Ross opposed including such a reference in the award. I ruled that because the matter of the timing of the College's brief had been raised at the heating, it was appropriate for me to refer to it in the award. Following this ruling the heating proceeded as an expedited arbitration heating with Ms. Ross acting as the College's spokesperson. THE GRIEVOR'S POSITION The grievor is a certified stationary engineer third class who is employed as a mechanical lead hand in the College's Plant and Energy Division. He ensures that heating, ventilating and other equipment is maintained in proper working order. This involves performing maintenance, and repair work on the equipment and replacing parts as required. The grievor also instructs othe staff conceming the proper procedures to be followed with respect to required mechanical repairs. If the grievor is unable to repair a particular piece of equipment he will discuss the matter with an outside contractor and obtain a quote on the cost of repairing the equipment. He will then ask his manager, Mr. Keith Galloway, the College's Manager of Plant and Energy, whether the contractor should perform the repair work. At times the grievor will machine precisioned parts rather than have the College purchase new ones. He also makes recommendations with respect to the purchase of new equipment. Pursuant to the job evaluation system referred to in the collective agreement the College classified the grievor's position as an atypical position at the payband 9 level. THE GRIEVANCE On November 19, 1992 the grievor filed a grievance claiming that his position should be classified as a stationary engineer atypical at the payband 10 level. The parties agree on the wording of a position description form respecting the grievor's position. They also agree on how most elements of the position should be rated under the ,job evaluation system. They disagree, however, on the proper rating respecting the nature of review element of the guidance received matrix; as well as the proper rating for the manual effort and work environment elements of the working conditions matrix. The grievor is one of three lead hands who work under Mr. Galloway. The others are Mr. Kurt Nitschke, the electrical lead hand, and Mr. Dave Tempeny, mechanical lead hand - refrigeration. Both of these employees are being paid at a higher rate tlan is the grievor. The Union's brief indicates that the grievo filed his grievance because he perceived this situation to be inequitable. The brief includes a copy of a memorandum st-t by Mr. Galloway to Ms. Ross on March 13, 1992 stating that he would like to see the grievor on a comparable pay scale with the other two lead hands. The College's brief indicates that Mr. Nitschke was in a management position which was transferred into the bargaining umt at the payband 9 level, the same level as the grievor's position. Mr. Nitschke, however, continued to receive his previous managerial salary. The College's brief states that Mr. Tempeny's posltion was raised to payband 10 in accordance with a without prejudice settlement of a classification grievance. The College contends that the pay level of the other two lead hands is of no relevance to these proceedings. The practice at expedited arbitration hearings is to have only the grievor and the grievor's immediate manager give evidence. This practice was followed in the instant case. In the result, I do not know any details relating to the work performed by the other two lead hands. I am thus not in a position to compare the rating given the grievor's position with that of the other lead hands, particularly Mr. Tempeny who is classified at the payband 10 level. It follows that the manner in which the other two lead hands are being paid is not of assistance to me in these proceedings. GUIDANCE RECEIVED MATRIX The parties agree that the grievor's position justifies a D rating for the guidelines available element of the guidance received matrix. They disagree, however, on the proper rating for the nature of review element. The College gave this element a 4 rating while the Union contends that a 5 rating is more appropriate. The criteria for these two ratings are as follows: 4. Work assignments are subject to a general form of review for achievement of specific objectives and adherence to established guidelines. 5. Work assignments are reviewed only for achievements of broad objectives, effectiveness of results and to ensure integration with the work of others. The agreed on position description form contains the following entry with respect to the review of the grievor's work: Major jobs are checked as required by Manager or his designate. Work is reviewed through discussion and occasionally by reports. Incumbent is expected to make decisions daily within the area of responsibility. The grievor testified that he talks with Mr. Galloway about the jobs that Mr. Galloway wants him to do, what repair work he has done and what work he has not done. Later in his evidence the grievor stated that he seldom discusses work with Mr. Galloway after it is completed unless something does not work, in which case he explains to him why it does not work. Mr. Galloway, who is a mechanical technologist, testified that he looks at broken equipment that will take at least a day to repair both before and after it is repaired. He stated that about once every two weeks he goes and looks at major jobs after they are finished, but at times he is in an area where minor jobs are being performed. Mr. Galloway stated that he checks the major jobs performed by the grievor to ensure that equipment is up and operating and that it will be a reliable piece of equipment. From this evidence, including the statement in the agreed on position description form that major jobs are checked as required by the manager or his designate, I accept that Mr. Galloway does check the major jobs performed by the grievor. Once a month the grievor provides Mr. Galloway with a written list of the major work that has been performed. According to Mr. Galloway, employees including the grievor receive preventive maintenance reports of work to be done which are retumed to their lead hand once the work is completed. Mr. Galloway indicated that the reports received by the grievor are primarily for the grievor's use although occasionally he reviews them to ensure that employees are performing their work with respect to preventive maintenance requirements. During the hearing Mr. Picciano asked Mr. Galloway if he reviews the grievor's work for effectiveness of results. Mr. Galloway replied in the affirmative. Apart from routine maintenance work it appears that the grievor does not work to established deadlines. Logically different repair jobs take different amounts of time to finish. Accordingly, the review for adherence to established deadlines aspect of the criteria for a 4 rating does not apply. The other part of the criteria does, however, seem to fit, namely that work assignments are subject to a general form of review for the achievement of specific objectives. In this regard, Mr. Galloway occasionally checks to ensure that routine maintenance is being performed and also reviews the completion of major individual repair jobs. Mr. Galloway agreed with Mr. Picciano that he measures the grievor's work for effectiveness of results. This fits part of the criteria for a 5 rating. The criteria, however, also refers to work assignments being reviewed for achievements of broad objectives. The union brief contends that this is the type of review done of the grievor's work. It describes the broad objectives as ensuring that all mechanical systems within the physical plant are operating as they should and ensuring the smooth running operation of the physical plant. The difficulty with this contention is that Mr. Galloway does concem himself with specific major tasks performed by the grievor, both before and after he has performed his work. This type of review is not contemplated by the criteria ror a 5 rating. Having regard to these considerations, I find that a 4 rating is more appropriate than a 5 rating. Accordingly I confirm the D-4 rating given by the College with respect to the guidance received matrix. - MANUAL EFFORT ELEMENT The parties agree that the grievor's position was properly given a D rating with respect to manual effort. This is the highest such rating possible. It indicates that the grievor engages in work which requires heavy manual effort and physical exertion; such as extensive climbing, using heavy machines and tools, and handling heavy materials requiring straining, pulling and lifting. What the parties disagree on is the prevalence of this type of manual effort. The College contends that a 2 rating is appropriate, while the Union argues for a 3 rating. A 2 rating applies where the type of manual effort in question is rare, occumng less than 10 percent of the time. A 3 rating is appropriate where the effort is occasional, that is between 10 to 30 percent of the time. With respect to the manual effort associated with the grievor's position the position, description form contains the following entry: Dismantling and moving or relocating heavy machinery: a) Motor-pumps, large bearings-shafts, coils = 10 - 25% b) Lifting and working from ladders and scaffolds = less than 10% The grievor testified that when he takes a fan apart the parts typically weigh 100 to 150 pounds and that a shaft that must be taken out can weigh 250 to 350 pounds. He stated that at times he is assisted in this work by other employees, although in an emergency there may not be anyone to assist him. The grievor indicated that he may use equipment such as a block 2 ld tackle to assist him, although at times this is not possible du to a lack of room. Mr. Galloway testified that a normal block nd tackle weighs between 20 and 25 pounds. The grievor, howeve, testified that he has one which weighs 75 pounds. The grievor's evidence relating to how much time he spends lifting heavy weights was not very clear. For example, he stated that he might repair two fans a day or one every six months. In response to a question from Ms. Ross as to whether he might be involved in moving a 250 pound shaft three or four times a year, he stated that it could be three or four times, or more, or less. The grievor testified that during the week prior to the heating he spent about five hours replacing a pump, one hour of which involved heavy lifting. He stated that he also removed a motor which required about two and a half hours of physical effort. The grievor indicated that during the same week he spent three days moving 45 gallon drams of anti-freeze, and that on each of these days he spent about three hours moving the drams on and off of a cart. The grievor acknowledged that this particular activity takes place only twice a year. It was Mr. Galloway's evidence that the grievor handles items over 50 pounds about two or three hours a week. He stated that a 150 pound shaft would be moved only about once a year at which time two people might carry it. He also stated that for work over 50 pounds the College has block and tackles, portable hoists and other staff to assist the grievor. The College's brief contends that 10 to 30 percent of the grievor's work involves moderate manual effort, such as climbing and working from ladders, and that less than 10 percent of his time is spent engaged in the type of hea~y manual effort contemplated by a D rating. This contention, however, does not take into account the agreed-on position description form which suggests that the grievor spends 10 to 25 percent of his time dismantling, moving and relocatjng hea~¥ machinery such as motor-pumps, large beatings-shafts and coils. Given this agreed on figure, I conclude that the grievor spends at least 10 percent of the time engaged in heavy manual effort. This justifies a D- 3 rating. The D-2 rating given by the College gave the grievor's position 20 points for the manual effort element. A D-3 rating increases this by 4 points to a total of 24. WORK ENVIRONMENT ELEMENT The parties agree that the grievor's position is appropriately rated at the C level for work environment. This rating is associated with disagreeable working conditions where there is exposure to dirt, noise and a variety of whether elements or exposure to potentially hazardous conditions where there is some possibility of injury. The parties do not agree on the prevalence of this condition. The College has given the position a 3 rating for prevalence while the Union argues that a 4 rating is more appropriate. A 3 rating applies where a particular work environment is present between 10 and 30 percent of the time; a 4 rating if it is present between 31 and 60 percent of the time. The position description form contains the fol lOwing entry with respect to disagreeable or unpleasant working conditions: Doing repairs inside and outside fan units requires working and moving around confined spaces = 15% Working outside on roofs in summer and winter = less than 10% The evidence with respect to the work environment parallels the entry in the position description form with respect to the matters referred to in the entry. The grievor's evidence indicates, however, that he frequently works in dirty disagreeable working conditions when he is doing repairs on equipment other than fan units. Indeed, it appears that most of the grievor's repair work is performed in disagreeable working conditions. In the result I accept the Union's contention that a 4 rating for prevalence, representing 31 to 60 percent of the grievor's time, is appropriate. The C-3 rating given by the College for the work environment elemt w-- -or-h -5 poin-s A - _ r-tin- i- worth -oints CONCLUSION The College's rating of the grievor's position resulted in it receiving a total of 603 points. The additional 4 points for manual effort and 3 points for work environment raise the point total to 610 points. Payband 9 encompasses positions with poim totals of between 571 to 630. In the result, I conclude that the grievor's position is properly classified as being within payband 9. Dated at Toromo this 29th day of November, 1993. Arbitrator