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HomeMy WebLinkAboutWright 94-09-09 IN THE MATTER OF AN ARBITRATION BETWEEN THE ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY (LOYALIST COLLEGE) Employer - AND - THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION Union AND IN THE MATTER OF A GRIEVANCE OF GORDON WRIGHT Grievor BEFORE: Prof. C. Gordon Simmons, Chair Mr. Robert Gallivan, Employer Nominee Mr. Ron Cochrane, Union Nominee APPEARANCES FOR THE EMPLOYER: Ms. Anne Burke, Counsel And Others APPEARANCES FOR THE UNION: Ms. Susan Chapman, Counsel Mr. David Wright, Counsel And Others Hearings into this matter were held on May 7, 1992, December 7, 1992; April 1, 1993; December 14, 1993; followed by written submissions by the parties. The grievor had been assigned to Lead Hand in the Accounts Receivable Department sometime in 1989. He was notified by letter dated July 31, 1991 (Exhibit 2) that his duties as a Lead Hand would end effective August 1, 1991. The griever filed a grievance on August 14, 1991 claiming, "Unjust letter of discipline as per Article 16.2" (Exhibit 1). He claimed in his grievance that the settlement desired was, "Reinstatement of Lead Hand premium back to July 31, 1991 and payment to include interest at prevailing rates. The removal of Letter of Discipline from my persennal [sic] file as per Article 16.4". The parties were unable to resolve this matter and it came forward to arbitration. During the course of these proceedings, the Union informed the Board that it would not be pursuing Article 16.2 and 16.4 of the collective agreement as presumably it concluded that the action that had been taken by the Employer was not disciplinary in nature. Instead, the Union informed the Board that it would be relying on Article 7.6 in the collective agreement in support of its position that the griever ought to continue to be in receipt of the premium payments of a Lead Hand. Article 7.6 reads (Exhibit 13): 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 assigm~ent. It is understood and agreed that Lead Hand assigm~ents shall not be applicable to employees in 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 pay. This is a convenient point to produce a portion of the Ministry of Colleges and Universities' CAAT Support Staff Job Evaluation Manual which contains a definition of the functions required of a Lead Hand (Exhibit 15). This definition reads: IV -- LEAD HAND DEFINITION Several classifications provide for a lead hand function and 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 has also the right to withdraw the premium when circumstances no longer warrant the payment of such a premium. 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 assigmnents and normally includes other duties as follows: 1) Allocating daily work assigmnents, according to established methods and procedures, and established priorities as required. 2) Laying out work, indicating sequence of work processes; showing employees how 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 reason for the Employer taking the action that it did is succinctly set out in a memorandum from the grievor's supervisor, Ms. G.R. Thompson, Manager, Accounting dated July 31, 1991 (Exhibit 2) which reads as follows: During our recent discussion concerning the absence of staff in Accounts Receivable last Friday morning, July 26, it became apparent that you had not planned for the Accounts Receivable unit to be staffed on the next two Friday mornings, either. On May 7, 1991, I instructed the lead hands in the Accounting Department to discuss summer hours options with the staff in their respective units and to ensure that at least one staff person was available in each area on Friday mornings. The other lead hands made the necessary scheduling arrangements; you clearly did not. Over the last year we have discussed your performance as a lead hand several times. It is apparent to me from our latest discussion that you are still not fulfilling your lead hand responsibilities adequately. Instead, it was necessary for me to insist that you reschedule your hours to ensure that the Accounts Receivable unit is staffed on the next two Friday mornings. Consequently, I am recommending the removal of your lead hand status effective August 1, 1991. While the foregoing sets out the problem that existed between the parties, this might be a convenient point to relate briefly some of the background that existed prior to the Employer taking the action that it did as outlined in Exhibit 2. There are four sections in the Accounting Department. There is Payroll, Accounts Payable, General Accounting, and Accounts Receivable. The griever was employed in Accounts Receivable. There was one other person employed in that section whose name was Ms. Senya Dyer. The evidence revealed that Ms. Dyer's responsibilities were primarily clerical but that she performed routine duties with respect to certain accounts. Ms. Dyer retired effectively April 17, 1990. A student was assigned to assist the griever for approximately one week at which time an employee by the name of Mr. Mike Meehan, who had up until that time been employed in Accounts Payable, was promoted to work with the griever in Accounts Receivable. Presumably, Mr. Meehan assumed the duties that had been performed by Ms. Dyer to that time, although the evidence is lacking that in effect this is what occurred. But in any event, Mr. Meehan joined the griever in Accounts Receivable approximately during the third or fourth week in April, 1990. The first significant problem that arose with respect to the griever's duties and responsibilities as a Lead Hand, according to the Employer, occurred during the long weekend in May, 1990. We will go into the details later in this decision but suffice it to say at this point, the griever had a deadline to meet on May 18 to produce certain statements that had to be ready on that date. It was on May 18 when Ms. Thompson discovered that the griever would not have the figures ready and was informed by the griever that he had made plans for the long weekend and would be unavailable to complete the assignment. This problem will be looked at in greater detail later in this decision. The second significant issue, according to the Employer, occurred in July, 1991. Mr. D.G. Butler, Vice-President, Human Resources, sent a memorandum to the staff on May 1, 1991 concerning summer hours. Ms. Thompson circulated the memo to her four group leaders with a handwritten memo encaptiened on Mr. Butler's memorandum to the effect that she required an assurance that at least one staff member be available on Friday mornings and during the period in question. The griever spoke with Mr. Meehan and he responded to the memo (Exhibit 4) that Mr. Meehan would be at work for four hours on Fridays during the summer and that he, the griever, would work Monday through Thursday. On July 26, 1991 (a Friday), Ms. Thompson discovered that there was no staff in Accounts Receivable during that morning. The griever, of course, was not at work. Ms. Thompson queried the griever the following week as to what had happened. The griever stated that Mr. Meehan was taking a three week vacation and that was the reason for no one being in the Accounts Receivable section on July 26. There is a bit of confusion as to whether Ms. Thompson insisted that the griever report for work the following two Fridays or whether the griever volunteered that he would be there. We will return to this state of confusion later in the decision. It was as a consequence of the absence of any staff member in Accounts Receivable on July 26 that Ms. Thompson wrote the memorandum to the griever on July 31 which has been reproduced above as Exhibit 2. It can be therefore stated that the Employer removed the griever as a Lead Hand and thereby not paying the premium for same on two grounds. One, of course, was the issue revolving around the summer hours in 1991; and the second one involves the griever's performance on the job. We will deal with the two issues now. The issue revolving around the summer hours is not complex. The griever admitted that he was aware that his section was to be staffed on Friday mornings during the summer season. He further admitted that he was aware that his colleague, Mr. Meehan, would be taking a vacation in July and August. He did not inform Ms. Thompson of this eventuality mainly because, according to the griever's evidence, the same occurrence had taken place in 1990 without objection. He was therefore of the opinion that he did nothing wrong and that it was appropriate in the circumstances. The evidence of Ms. Thompson was that in 1990 she had not been aware that there had not been a staff member in Accounts Receivable. She further testified that when the absences occurred in 1990 she had been on vacation. The griever did not dispute the fact that Ms. Thompson had not been aware of no staff being in Accounts Receivable in 1990. One of the significant problems, according to the Employer, was that the griever had failed to apprise Ms. Thompson of the fact that no one would be in Accounts Receivable on the three Fridays starting with July 26, 1991 and as well had not apprised Ms. Thompson that no staff would be in the section during certain weeks in the summer of 1990. It was the Employer's position that the griever had failed to carry out his responsibilities as a Lead Hand by not informing Ms. Thompson pursuant to the definition of Lead Hand which has been reproduced above as Exhibit 15. In his evidence, the griever testified that he saw no problem in what he had done notwithstanding the fact that there was the directive from his supervisor to ensure that there be staff in the section on Friday mornings during summer hours. Turning next to the issue of the performance of the griever as a Lead Hand, we must go back to May, 1990. The evidence reveals that in early May, 1990 the griever requested a leave of absence to attend an OPSEU convention which was to take place on May 9, 10, and 11. Upon giving assurances that his work was not behind, Ms. Thompson granted the leave. This was a critical time of the year. The fiscal year end ended on March 31, 1990. The griever had certain responsibilities to carry out pre-audit functions for the auditors who were expected to arrive in late May. The deadline for the griever's work, as stated above, was Friday, May 18, 1990. The griever attended the union convention and all seemed to be well in hand. However, as we have alluded to above, the griever on May 18 informed Ms. Thompson that he would not be able to meet the deadline. Ms. Thompson met with the griever on June 13 and 18 to express her concerns and by memorandum to the griever dated July 9 (Exhibit 9), set out her concerns which are as follows: On June 13, 1990, I met with you to express my dissatisfaction with your performance around the 1989/90 year-end work. Specifically, I had the following concerns: - I had arranged for Rick Helman to assist you with the pre- audit of the enrolment report to ease the year-end work for your position. Rather than have Rick work with you, you assigned him a portion of the testing, and took no further responsibility for that portion, despite the fact that this pre-audit was a regular responsibility of your position. - I agreed to allow you approximately 21/2 days off for union business during the year-end period, after you assured me that your work was on schedule. In fact, you did not meet the subsequent deadline for Accounts and Grants Receivable. - Several of the revenue amounts you provided for the financial statements were incorrect, specifically the apprenticeship grant and the FNTI revenue, despite the fact that, in the first case, you were advised earlier by Norm Glancy that there would be a strike impact, and in the second case, we had information on file about the change. We met again on June 18, at which time you responded to my concerns. Specifically: - You felt that the deadline I had set for Grants Receivable was too early as you were unable to confirm entitlements with MCU and MSD until after this deadline. We should determine our entitlements with the information we have on file. Confirmation after the fact is a verification procedure. - You agreed that you could have followed up on the amendments to apprenticeship grant earlier. - You received information from other staff at the last minute and therefore too late to meet the deadline. Much of this information was available earlier had you asked for it. - The CSP's for rentals did not agree with the leases and you had to reconcile these amounts with MCU before proceeding. This reconciliation could have been completed prior to year-end. - Sonya Dyer's retirement caused some difficulties as she was unavailable to help. Sonya left on April 17, 1990. She was replaced full-time by a placement student until Mike Meehan was promoted to fill the vacancy on April 20. The deadline in question was May 22. - Generally you believed your performance this year-end was better than last, that you did more advance work this year. You said that you had tried the best you could and do not think you could have done any better. Based on your performance and these discussions, I believe that you are not fulfilling the role of a Lead Hand in the Accounting Department. You are not co- ordinating the activities of the Accounts Receivable Unit, nor organizing the workload to meet established deadlines. You are taking a reactive role with respect to the responsibilities of your position rather than a proactive role. For these reasons, you are being put on notice that your performance will be closely monitored over the next six months to determine if you should remain in the position of Accounts Receivable Coordinator. If, at the end of six months, or any time during this period, the expectations which are listed below are not being met, you will be reassigned and reclassified to a position more suited to your ability and performance. I have discussed this situation with Norm Glancy and he concurs with my assessment. Expectations for the next six months include specifically: 1. Have all overtime authorized prior to working it. 2. Recommend a training plan for new Accounts Receivable Clerk. 3. Complete monthly grant revenue journal entries within three working days of receiving remittance advice. 4. Establish, and follow, a schedule for running Accounts Receivable statements. 5. Reduce the number of Accounts Receivable sub-ledgers to three - Student notes receivable - Student accounts receivable - Trade accounts receivable 6. Monitor Accounts Receivable sub-ledgers to ensure that all cash applications are current and Accounts Receivable over 90 days are followed up in writing. 7. Prepare CDP, in conjunction with Bea Lo, on Library Books receivable as discussed 15 February 1990. 8. Prepare CDP, in conjunction with John Bertelink and Charlie Benson, on the keying of student withdrawals as discussed 2 November 1989 and again 7 March 1990. 9. Research and prepare CDP on the invoicing of Purolator charges. 10. Establish, in conjunction with Computer Centre staff, a procedure for an invoice interface. 11. Anything that may prevent you from meeting established deadlines should be brought to the attention of your supervisor immediately. Your performance will be evaluated formally after three months and again after six months. You will be expected to keep your supervisor apprised of the status of your workload and that of the Accounts Receivable Unit on a regular basis. As can be seen from this memorandum, Ms. Thompson set out 11 items of concern for the griever to give attention to. The evidence revealed that Ms. Thompson met with the griever on a weekly basis to discuss how he was proceeding. Ms. Thompson gave an interim performance appraisal dated October 9, 1990 appraising the griever's performance to September 30, 1990. She stated in her memorandum (Exhibit 10) that Item #1 was not in issue because there had been no overtime to date. A number of expectations were complete and she noted them. Items #5 and #10 were apparently in progress. But, she informed the griever that Items #3 and #11 were not satisfactory. Her comments read as follows: Item #3: Expectation Complete monthly grant revenue journal entries within three working days of receiving remittance advice. Comment Journal entires are still not being entered as quickly as required. Both the MSD and MCU grants are being entered into the General Ledger on a monthly basis though the remittance advices are received semi-monthly. Item #11: Expectation Anything that may prevent you from meeting deadlines should be brought to the attention of your supervisor immediately. Comment See General Comments General Comments Item #11 results from concerns that you were not fulfulling [sic] the role of a Lead Hand in the Accounting Department, neither coordinating the activities of the Accounts Receivable Unit, nor organizing workload to meet established guidelines, that you were taking a reactive role rather than a proactive role with respect to the responsibilities of your position. I m~ still concerned that this remains the case. While you agreeably address issues that I raise, you do not appear to look for problems before they come to my attention or correct procedures that are inefficient without being prodded. Examples of this are: 1. You were unable to reconcile the Accounts Receivable subledgers at August 31, 1990 because the cash entries were unposted. However, you did not discuss this problem with the Coordinator responsible for posting these entries until I suggested that you do so. 2. Balance sheet accounts at August 31, 1990 included balances forward from previous years that should have been cleared in the current year. You should have known this without my prompting. As a result of monitoring your performance over the last three months, I am concerned that your attention to those expectations outlined in the earlier letter is more related to my increased follow-up rather than your increased involvement. It is my opinion that you are still not fulfilling the role of a Lead Hand in the Accounting Department. You must begin to show more initiative and take more responsibility for the Accounts Receivable unit. Your performance will be reevaluated further in January 1990. The January 7, 1991 Performance Evaluation (Exhibit 11) revealed that all of the rating scale was rated as Satisfactory. However, Item #11 on page 2 of that evaluation reads: Item #11 Expectation - Anything that may prevent you from meeting deadlines should be brought to the attention of your supervisor immediately. Comment- You are making progress in this area, but need to continue to think ahead when setting priorities, and keep me informed of those priorities. For example, you advised me on 90 12 14 that the clean and annotated subledger that I requested from you on 90 11 09 would not be ready for my review on 90 12 17 as requested. You must work on reviewing your priorities to ensure that deadlines are met. You must also ensure that I am aware of potential problems earlier than one day before the established deadline so that I can work with you in setting priorities if you are unable to do so on your own. It has caused us some concern that it was necessary to review your performance in this manner. You are strongly advised not to allow your performance to deteriorate again, as my recommendation, in that event, would be to immediately reassign and reclassify you to a position more suited to your ability and performance, as outlined in my memo to you of 90 07 09. The evidence revealed that Ms. Thompson continued to meet weekly with the grievor until July, 1991. As related above, it was on July 26 that no one had been scheduled to be at work in the Accounts Receivable section on that day, being Friday, which prompted the Employer to take the action that it did. The issue that is before us is whether or not the action of the Employer was reasonable in all of the circumstances. The Union advances the submission that pursuant to Article 7.6 of the collective agreement, management has the right within the limits of that article, to determine whether there will be a Lead Hand in a given area, who will be the Lead Hand, and when that person will be removed from the Lead Hand position. The Union submits that there are three circumstances in which the College can remove someone from a Lead Hand position; if the Employer determines that a Lead Hand is no longer needed, as a disciplinary penalty, or if the employee is unable to meet the requirements of the position (see Brown & Beatty, para. 7:3546). The Union submits that the Employer's decision to remove the griever from being a Lead Hand was not because there was no Lead Hand needed, it was because of the griever's actions in scheduling summer hours. Further, the Union asserts that the Employer's action in the instant situation was unreasonable and that the onus is on the Employer to demonstrate that it was reasonable, the Union relies on Re Wire Rope Industries Ltd. and United Steelworkers, Local 3910 (1983), 13 L.A.C. (3d) 261 (Hope, ch.) at pp. 263 and 269, and Re Crane Canada Inc. and United Association of Plumbing & Pipefitting Industry, Local 170 (1990), 14 L.A.C. (4th) 253 (Hickling, ch.) in support of its position. In essence, the Union submits that the Employer's decision to remove the griever from his position as a Lead Hand was not reasonable and that the Employer failed to clearly communicate to the griever the standard to be met, and failed to give the griever a reasonable opportunity to meet that standard. The Employer adopts the position that the griever was not performing the duties for which the Lead Hand premium was being paid and because no amount of coaching or supervision seemed to obtain the desired results in the griever's performance, the Employer should not be required to continue to pay the premium and have to closely supervise the griever's performance to ensure he met the standards expected of a Lead Hand. The Employer also referred the Board to several previous arbitration decisions in support of its position. One is an unreported decision involving Unifin Corporation and United Automobile Workers, Local 27 (Armitage grievance) decided by the instant Chair dated March 28, 1974 which dealt with the issue of a Lead Hand premium noting that there was nothing in the collective agreement concerning Lead Hands except the premium that was to be paid to such employees. The Employer in that case decided to have the Foreman perform the Lead Hand duties and there was a grievance filed by the Union claiming that the Foreman was performing bargaining unit work. Further in that case, the Union agreed that the Employer had the right to appoint a Lead Hand but did not have the right to discontinue that appointment. It was held in that decision that because there was no classification of Lead Hand stipulated in the collective agreement the Employer therefore did not have to continue the assignment of Lead Hand duties where it was not required. The grievance in that case was dismissed. The Employer pointed out in the instant situation that Article 7.6 only requires that the Employer give due consideration to the ability, qualifications required and where the Employer assigns an employee to Lead Hand responsibilities, the Employer is to pay a 75 cent per hour premium to that employee. The Employer submitted that there is no requirement to appoint a Lead Hand. Further, the evidence revealed that since the griever was no longer assigned to perform the Lead Hand responsibilities as of August 1, 1991, there has been no subsequent Lead Hand appointed in the Accounts Receivable Department. The evidence acknowledged that the other sections in the Accounts Department have more employees in the sections than does Accounts Receivable. Having had an opportunity to review all of the evidence and submissions of the parties, the Board concludes that the grievance must fail and be dismissed. The griever acknowledged that one of the responsibilities of a Lead Hand is to keep the supervisor apprised of developments in his section. He is the eyes of his supervisor in his section and the supervisor must be able to rely upon him to apprise her of upcoming problems that are appearing on the horizon in the section. Clearly, this is not what the griever did while receiving the premium of Lead Hand. This is evident in several situations. If we look back to May 19, 1990, when the griever asked for a leave of absence to attend the union convention, he assured Ms. Thompson that everything was in place and that there would be no delays in finalizing his work. He went to the convention which was held on May 9, 10, and 11, and when he returned the evidence revealed (Exhibit 12) that the griever, during the week of May 14 to May 20, submitted 18 hours of overtime. On May 18 (the Friday before the long weekend), he informed Ms. Thompson that he would not be able to meet the set deadlines. It was only on Tuesday when he received advice from Ms. Thompson and Mr. Norm Glancy, Comptroller for the Employer, as to how to process certain accounting procedures was he able to perform the required work. Without going into detail, this was as a result of a strike by the Union in November, 1989 which impacted on refunds that students would receive, but which information had been communicated to the griever by Mr. Glancy in February, 1990. However, the griever admitted that he was unaware of what the impact would entail but made no further enquiries as to how to enter such impact onto the books. It was not until May 18 that the griever informed Ms. Thompson that he would not be able to meet the deadline and further that he had made arrangements for the long weekend. It was at this point that Ms. Thompson became concerned about the griever's capability for carrying out the responsibilities of Lead Hand. She worked with him closely for approximately one year and noted improvements that were being made. However, in 1991 when the griever failed to inform Ms. Thompson that there would be no staff in the Accounts Receivable section during Friday mornings in July and August, she concluded that she had to take action because she no longer had trust in the grievor to keep her informed of impending problems on the horizon, nor that he had the initiative to carry out the duties and responsibilities of Lead Hand. After having had an opportunity to review the evidence and submissions of the parties, for all of the foregoing reasons, the Board concludes that the Employer's action ought not to be interfered with. That is to say, Ms. Thompson had worked closely with the grievor over a period of time to assist him in carrying out his duties as a Lead Hand. By failing to inform her that no one would be working in the Accounts Receivable office on Friday mornings, after all that had transpired, this Board agrees with Ms. Thompson's decision which is reproduced above as Exhibit 2. The grievance is dismissed. Dated at Kingston, Ontario, this 9th day of September, 1994. C. Gordon Simmons Chairperson "Bob Gallivan" I concur/dissent Bob Gallivan Employer Nominee "Dissent to Follow" I concur/dissent Ron Cochrane Union Nominee