HomeMy WebLinkAboutReid 89-00-00 IN THE MATTER OF AN ARBITRATION
between
GEORGE BROWN COLLEGE
(hereinafter referred to as the College)
and
OPSEU, LOCAL 557
(hereinafter referred to as the Union)
Classification Grievance of S. Reid
Sole Arbitrator: G.J. Brandt
Appearances:
For the College: Robert Little, Counsel
A. Lillepold, Mgr, Employment
J. Graham, Director, Phys. Resources
Angela Rose, Mgr, Classification
For the Union: David Wright, Counsel
Sam Reid, Grievor
Hearing: George Brown College
July 17, 1989
AWARD
This is a classification grievance of Sam Reid dated February 12, 1987 in which the grievor claims
that he be ~properly assigned to the appropriate pay band retroactive to June 1, 1986~.
Preliminary matters:
At the hearing an issue arose as to whether or not the Union is obliged to forward to the College a
copy of the brief which it submits to the Arbitrator in advance of the hearing. While the Union made
available to the College some of the documentation which it submitted to the arbitrator it chose not to
provide the College with a copy of its argument.
Counsel for the College submitted that the normal practice in arbitration proceedings is for a party
to those proceedings to copy any material sent to the arbitrator in advance of those proceedings to the
other side. It was further suggested that this practice had been followed by these parties in earlier
classification grievances. It was also noted that, in view of the fact that the negotiated procedures for
hearing classification grievances contemplates that the College has an option to file a brief, such option
could only realistically be exercised if the College was in possession of a Union brief to which it could
respond.
Having considered these submissions I ruled that the language of the collective agreement does not
require the Union to forward a copy of its brief to the College. Article 18.4.4.5 provides that the Union
must submit a brief to the arbitrator. No mention is made of any obligation to provide a copy thereof to
the College. Furthermore, Article 18.4.2.1 sets out the kind of material which must be exchanged by the
parties during the grievance procedure. Again no mention is made of any obligation to provide the other
side with the argument which will be advanced at the hearing.
I reach this conclusion reluctantly. The spirit of the negotiated procedures wherein these matters
are to be resolved in an expedited fashion would suggest, in my respectful opinion, that there be a full
exchange of information by the parties prior to the hearing. In that way the arbitrator is best armed to
conduct the investigation which is demanded by an ~arbitrator driven~ process.
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I should add that this obligation to disclose should not be seen as moving in only one direction.
Although the College admittedly enjoys the option whether or not to file a brief the process would be aided
if the College were to choose to exercise its discretion and file a brief. It has been my experience that
the Colleges never file a brief. Thus, the Union can perhaps be forgiven if, in the face of such non
disclosure by the College, it chooses to restrict the amount of information which it will disclose to the
that demanded by the collective agreement.
Both the College and the Union are entitled to take these positions. I merely wish to record that
by so doing the ~expedited~ process becomes protracted and the system begins to fail.
A second preliminary matter concerned the claim for relief retroactive to June 1, 1986. Some
documentation was provided which would indicate that there had been an agreement between the College and the
local Union which would permit such a claim. It was, however, agreed by the parties that this issue be held
in abeyance and that I remain seised of jurisdiction to deal with that issue should it become necessary.
Introduction
The grievor is classified as a Technologist B. He works in the Plant Operations Department of the
Physical Resources Division and, at the time of the grievance, reported to Mr. James Graham, the Manager of
Plant Operations. He has a certificate of qualification as a sheet metal worker and a master's license as a
sheet metal worker. He also possesses qualifications as a maintenance and construction welder, as a gas
fitter, and as a coppersmith.
The factors in dispute are in the areas of Job Difficulty, (Complexity and Judgment); Knowledge
(Training/ Experience and Skill): and Working Conditions (Working Environment).
The following table sets out the respective evaluations of these factors by the College and Union
respectively:
College Union
Job Diffieulty D4 171 E5 222
Knowledge:
Training/Experienee E5 117 F6 145
Skill 4 47 5 61
Working Conditions:
Environment C3 15 C4 18
Evidence
Unfortunately the parties are in disagreement in a number of respects as to the content of the
Position Description Form. While some of those disagreements concerns matters of semantics and expression,
some are of substance. Consequently, I must deal with this matter largely on the basis of the evidence
adduced at the hearing.
Mr. Graham described the grievor's duties generally as involving him in "trouble shooting" problems
in the heating and ventilation systems of the College. There is some indication that he was originally
hired because of a concern of the College concerning its air quality. Mr. Graham stated that the core of
the job consists of effecting additions and alterations to existing duct work to deal with air management
problems. While, in many cases the problems can be solved without alterations in the system, there are
occasions when such alterations and modifications are necessary in which event it falls to the grievor to
become involved in these alterations.
Evidence was heard with respect to some specific examples of the kind of work done by the grievor in
the period prior to the filing of his grievance. He spoke of alterations which were necessary to the
Welding Fab Shop to improve the capacity of the system to exhaust fumes from the area. He examined the area
and "designed" a solution, viz, building welding hoods over the cubicles with appropriate ducting to the
main exhaust system. Having worked out a solution the grievor calculated the amount of sheet metal work
required, estimated the shop labour costs of fabricating the hoods and the hours involved in installation of
the hoods.
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A second example concerned a problem of uneven distribution of air in one of the rooms; the air was
hot at one end and cold at the other end of the room. The grievor stated that he proposed a modification to
the distribution system wherein some of the diffusers would be shut off and new duct work run to a different
location. In that regard he prepared a diagram which was filed in evidence and which indicated the nature
of the changes. Following this he made changes to the blueprint for the area.
A third problem required a change in the system for the intake of fresh air into the premises at 500
MePherson Ave. Car exhaust fumes had been coming in through the windows and employees were becoming ill.
Consequently a system was devised wherein the existing system was changed to permit a fresh air intake from
the roof of the building with appropriate duct work tying it into the air conditioning system. The grievor
stated that he designed that system. He did not accept the suggestion put to him by counsel for the College
that, in reality, the concept was created by Mr. Graham and that his role was essentially one of executing
that concept. He considered the concept to have been his and that Mr. Graham merely accepted his
recommendation.
Mr. Graham characterized the grievor's involvement in these projects somewhat differently. It was
he, Mr. Graham, who arrived at the concept of taking in fresh air from the roof and, having reached that
decision, he consulted with the grievor as to the best location for the ducts and as to the type of fan that
might be installed. In other words the grievor was involved more in advising on how to execute rather than
in the development of the concept itself. He further confirmed that once the decision had been made to do
the work the grievor estimated the costs involved in carrying it out.
Similarly, it was Mr. Graham's view that the basic concept for the exhaust hoods in the welding fab
shop was developed by Mr. Copsey and that the grievor's role was in completing the necessary calculations.
However, Mr. Graham was not involved in that decision and had no first hand knowledge of it.
As for the diagrams which the grievor prepared for these various projects Mr. Graham did not regard
them as ~designs~ in the sense of what would be expected of a professional engineer. Rather they were
sketches not unlike a circuit diagram that would be prepared by an electrician.
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Another aspect of the job which the grievor relies upon as justifying an assignment to a higher pay
band concerns certain duties he performs in connection with other personnel. These arise in two ways.
First, he serves as an acting Lead Hand when the regular Lead Hand, Mr. Wheeler, is absent. Second, where a
projeet involves a number of different trades, eg. eleetrieians, plumbers, ere. the grievor elaims that he
is responsible for eo ordinating their work. It is agreed between the parties that during the period in
question the grievor served in an aeting Lead Hand eapaeity for 18.5% of the time.
He stated that as acting Lead Hand he is responsible for assigning work to the appropriate trades as
and when calls for service come into the department. He dispatches the tradesman to the job and receives
reports on any problems that may arise. If there are sueh problems it may be neeessary to eall in an
outside eontraetor to do the work, for example, where there is a problem on the refrigeration side of an air
eonditioning unit. Where the problem is a major one he seeks the authorization from Mr. Graham to approve of
the work being done. However, if any expenditures are reasonable he is authorized to approve of the work.
In his words, he makes a judgment and ~takes the eonsequenees~.
Although he has no authority to authorize large repair work he stated that he does not check with
Mr. Graham where there will be an expenditure of between $200 300 and that no one ever told him that he must
seek Mr. Graham's approval. It was his view that in emergeneies, eg. a eooling problem in the eomputer
department whieh eould eause the eomputers to go down thereby resulting in the loss of stored data, he would
simply go ahead and do the job and ~take the consequences~. He stated that Mr. Graham was not always
available for consultation on such emergency projects
On the question of the grievor's ability to order the completion of work requiring the expenditure
of money Mr. Graham stated that he would not become involve in routine matters where what was required was a
2 4 hour service call. However, he expected that an expenditure of $300 400 would be run past the manager,
whether it was himself or the Manager of Engineering Services or the Director of Physical Resources, all of
whom had authority to approve such expenditures. As acting Lead Hand the grievor had no authority to
approve of work which required a large expenditure of money.
Mr. Graham also testified as to the other duties of the Lead Hand besides assigning trades. These
included significant planning of the work that had to be done over the whole operation and required a
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comprehensive knowledge of how a number of different systems work. The grievor had none of these broader
responsibilities as an acting Lead Hand.
The second area to be considered under this topic is that of the grievor's involvement in the ~co
ordination~ of the work of the other trades on projects involving the alteration of a system. For example,
the relocation of an exhaust fan may require the services of an electrician to run cable to a particular
point, or the installation of new duct work may require the services of an outside contractor to drill holes
in the floor. The grievor stated that he became involved in co ordinating these various trades both as to
when they should arrive at the work site and as to where the work should be done.
It was Mr. 6raham's opinion that it was the Lead Hand who co ordinated the work of the trades, that
in the ordinary course of things, the grievor would inform the Lead Hand, or Mr. 6raham, that certain trades
were needed on a project involving air management and that it was the Lead Hand who assigned the work and
co ordinated it. He conceded, however, that insofar as the co ordination of the work was concerned, the
Lead Hand may well simply instruct the grievor and the various other trades to get together informally and
work out their own schedule for completing the work.
Although there is no evidence on the point it is presumably the case that when the grievor acts as
Lead Hand during the absence of Mr. Wheeler he performs the co ordinating duties referred to above.
The grievor performs his duties in a work environment which exposes him to dust, fumes and the risk
of falling off of ladders. He wears hearing protection and a mask to cover his nose when required. The
grievor stated that he was exposed to these conditions both when he is ~diagnosing~ a problem to determine
what needs to be done and when he is installing the sheet metal work that is needed. In addition, but to a
lesser extent, he is exposed to some of these conditions when he is fabricating the duct work in the sheet
metal shop.
Mr. 6raham conceded that the grievor is exposed to these conditions. However, he claimed that these
risks were present primarily during installation, at which times the systems would be shut off so that fumes
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would not be present. It was his opinion that there was little exposure to these conditions during the
"diagnosis" stage. He stated that the griever would "seldom if ever" be required to erawl in a duet.
Finally, some evidence was introduced with respect to the issue of training and experience. It was
the griever's opinion that the training provided under the Apprenticeship and Tradesmen's Qualification Act
[which leads to the eertifieate of qualifieation demanded by the College] does not suffieiently deal with
the ~design~ of air handling systems and that, in order to do his job it is necessary to have further
training. Specifically he identified a number of courses offered by the College which would provide that
added knowledge, viz, Design I and II, Blueprint Reading for Construction Trades, Technical Drawing, Part I,
Pneumatic Control, Sheet Metal Design and Installation, and Gas Fitter. The grievor stated that he took
all of these courses at various times in preparation for his Master's license.
Mr. Graham stated that the position did not require the possession of anything more than the
knowledge that would be gained by taking the courses prescribed under the apprenticeship program. To the
extent that some extra knowledge might be required that could be gained through the 5 years of post
apprenticeship experience which the College requires for the ]ob.
Conelusions
Job Difficulty
On the job difficulty factor the Union claims a rating of level E for Complexity and level 5 for
Judgment. It argues that since the griever is required to work on different systems and to come up with
different solutions for different kinds of problems the job requires him to perform work which ~involves the
performance of non routine and relatively unusual tasks that may require the application of specialized
processes or methods. It further argues that the need to work on a variety of different systems which
present different kinds of problems requires that the griever exercise ~signifieant~ judgment and that he
~refine~ the work methods and techniques to be used.
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I am unable to agree that the grievor works on ~relatively unusual~ tasks. Admittedly his work
requires him to work on ~different~ systems but that is not to say that the tasks are ~unusual~. It would
appear that level D for the Complexity element of the Job Difficulty factor more accurately captures the
variety of different tasks that the grievor performs, viz, ~work involves the performanee of varied, non
routine complex tasks that normally require different and unrelated processes or methods.
Nor ean I agree that the grievor applies ~speeialized~ proeesses or methods in performing the tasks
assigned to him. Of eourse he is a ~speeialist~ in the sense that he has experienee and knowledge in air
quality management problems. However, in that sense, he is no more of a ~speeialist~ than is a eertified
eleetrieian who also brings to the task a set of speeial skills and knowledge.
Similarly I eannot agree that the grievor is required to ~refine~ the work methods in solving
problems. It is true that he may use a ~different~ approach to solving different problems but the essential
way in whieh he goes about that task is to apply his existing skills to those problems. It may be noted in
this regard that level 4 for Judgment eontemplates that problem solving will involve a person in a ~variety
of eonventional problems~
The Union also argued that the aeting Lead Hand duties of the grievor, whieh oeeupied approximately
one fifth of his time, had not been adequately faetored into the evaluation of the position by the College.
It was suggested that these duties whieh were substantially different from those performed in respeet of
air quality management added significantly both to the complexity of the job and to the judgment required.
The evidenee, however, would suggest that nothing in these duties involved the grievor in tasks that
were ~relatively unusual~ or that required the applieation of ~speeialized proeesses~. Nor did they involve
any refining of work methods. As aetingLead Hand the grievor essentially assigned the appropriate trade to
the task which had to be done and ensured that their work was co ordinated. I do not accept the submission
of the Union that this required the grievor to have any signifieant knowledge of the skills and proeesses
applied by these trades. Nor can I accept that the grievor, in this respect, was required to resolve the
~personnel problems at the work group level, eaeh of whieh is unique and unusual~. There is no evidenee
before me of any role of that kind whatsoever. Indeed the evidence would indicate that the grievor does not
supervise the trades and that any problems whieh arise in eonneetion with the work performed by the trades
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are referred to Mr. Graham for resolution. Finally I would note that, while performing in an acting Lead
Hand capacity, the grievor was assigned none of the overall system wide planning responsibilities that were
a significant portion of Mr. Wheeler's job.
I do accept that the assignment of acting Lead Hand duties to the grievor does add a dimension to
his job which arguably justifies his classification at a level higher than that of a tradesman. There are
two answers to that claim. First, he is classified higher than a tradesman (Pay Band 9). Secondly, insofar
as he receives the Lead Hand premium in respect of his duties as an acting Lead Hand he is rewarded for
those duties. I agree with the submission of the College that to take those duties into account for the
purpose of awarding him a higher classification would, in effect, amount to double counting.
Consequently, I conclude that the appropriate rating for the factor of Job Difficulty is D4
Training and Experience
Experience
I believe that the case of the Union for evaluating this factor at level F is unanswerable. The PDF
clearly states that the minimum amount of practical work experience required is *five years post
apprenticeship experience in trouble shooting H.V.A.C. systems in a commercial and industrial setting and
five years as sheet metalworker in design layout fabrication of sheet metal duct systems*. Mr. Graham
stated that this is not, in reality, what the College requires. However, I must be guided by the agreed
upon PDF in this respect. That would indicate that, at the very least, the College requires 10 years of
experience. The appropriate evaluation for *more than 8 years of practical experience* is level F and I
would accordingly hold that this is the level that should be applied to this position.
Training
The Union claims that this factor should be rated at level 6, viz, ~required skills normally
acquired through attainment of a three year Community College diploma or equivalent.~
The PDF states that the minimum amount of academic or formalized training required is a
~certificate of qualification as a mechanical maintenance tradesperson with significant exposure to air
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measurement techniques, system design, operation and trouble shooting. An earlier award of this arbitrator
(George Brown College v Opseu, Johnson) concluded that the certificate of qualification required was the
equivalent of a 2 year Community College diploma. In this case the Union seeks to argue that this should be
increased to 3 years.
It is argued that the courses taught in the apprenticeship program do not adequately train the
grievor for the kind of work that he is required to do. Much of that argument related to the ~design~
duties of the grievor. In my opinion the kind of ~design~ in which the grievor was engaged was not of the
sort which would require that he take the various courses identified above. I agree with Mr. Graham's
characterization of the grievor's designs as ~not to scale sketches~. They appear to require none of the
skills and knowledge which one would obtain from, for example, courses in Blueprint Reading and Technical
Drawing, each of which the grievor considered to be essential. I accept Mr. Graham's evidence that the
formal courses offered in the apprenticeship program are sufficient to cover the training requirements of
the position.
Consequently, I conclude that the College rating of this factor at level 5 is appropriate.
Skill
The basis for the Union's claim that the skill factor should be rated at level 5 is that the job
requires more than a mere ~understanding~ of the elementary principles of a science or professional
discipline; it also requires the application of those principles.
I agree that the grievor is required to apply his skills and knowledge to the resolution of
problems. But if that were the exclusive basis upon which one were to differentiate between level 4 and
level 5 the tradesman classification would be rated at level 5 for this factor. Yet they are rated at level
4.
In order to separate out level 4 and level 5 skills it is necessary to have regard to more than just
the distinction between understanding a discipline and applying it. It is necessary as well to look at the
rest of the requirements in this element. In that regard I do not believe that the evidence can sustain the
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conclusion that the work performed by the grievor ~requires the ability to organize complex statistical
information~ or to operate ~very complex electronic instruments, laboratory or computer equipment~.
Consequently, I conclude that the appropriate level for the Skill factor is level 4.
Working Conditions: Environment
The dispute here concerns the extent to which the grievor is exposed to a ~disagreeable~ work
environment. The Union claims that it is ~frequent~ (31 60%); the College claims that it is ~occasional~
(10 30%)
On the basis of the evidence before me I conclude that the exposure is ~frequent~ as the Union
maintains and I would accordingly rate this factor at C3.
Thus, in summary, I reach the following conclusions respecting the factors in dispute:
Job Difficulty D4 171
Knowledge: Training/Experience F5 130
Knowledge: Skill 4 47
Working Conditions: Environment C4 18
With these changes the grievor's point total rises to 687. However, as that total keeps him within
pay band 10 his grievance must be dismissed.
Before concluding this award I believe it to be appropriate to comment on one of the arguments
advanced by the Union. It was suggested that for the purposes of evaluating the position of the grievor in
connection with both the Job Difficulty factor and the Skill factor, reference should be made to the PDFs of
two other employees, Mr. Wheeler and Mr. Dunne. I do not believe that the process of expedited arbitration
can accommodate such a request. I accept that job evaluation is essentially a comparative exercise and
that, were this not an ~expedited~ procedure, it would be relevant to hear evidence concerning the duties in
other jobs which surrounded the job in question. It is only in that way that an accurate conclusion can be
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reached as to the proper location of the job in question within the wider framework. However, in an
expedited process, the only evidence that can be heard is that concerning the job in question. That
evidence is then matched against the standards set down in the manual. I recognize that, considering that
the standards are expressed in language which does not draw clear lines between the factors, there is a risk
that some anomalies may result. That would appear to be the price that must be paid for resolving these
disputes by the expedited procedure agreed upon by the parties.
Dated at LONDON, Ont. this day of 1989
6. J. Brandt, Arbitrator