HomeMy WebLinkAboutBelleau, Leroux 01-01-01 CAA T (S)
In the matter of an arbitration
between
CONFEDERATION COLLEGE OF APPLIED ARTS AND TECHNOLOGY
(hereinafter referred to as the College)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 731
(hereinafter referred to a the Union)
Classification Grievances of Richard Belleau and Hank Leroux, #95A336
Sole Arbitrator: Gregory J. Brandt
Appearances:
For the College: Wallace Kenney, Counsel
Ron Vopni
Douglas Demeo
Joanne Kranyak
For the Union: Mary Mackinnon, Counsel
Richard Belleau, Grievor
Hearing:
Thunder Bay, Ontario
April 26, 2000
October 24, 25, 2000
November 6, 2000.
November 29, 2000
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AWARD
1. Introduction and Background
The grievors are employed in the Physical Resources Department at Confederation
College in Thunder Bay, Ontario in the Position of Industrial Mechanic Millwright. Mr.
Belleau has been employed by the College since June 19, 1989 and Mr. Leroux since
January 2, 1990. They are currently classified as Skilled Trades Workers, Pay Band 9.
By theses grievances they claim that this classification does not accurately reflect the
duties and responsibilities of the position having regard to the various factors that are to
be measured under the Job Evaluation Plan and that they should instead be classified as
Skilled Trades Workers Atypical, Payband 12.
The processing ofthe grievance has had a lengthy and complicated history. The
grievance was initially filed more than 6 years ago .............................
to the grievance certain changes were made to the Position Description Form (PDF).
However, the matter could not be resolved and the grievance was referred to Arbitrator
lan Hunter under the expedited process agreed upon between the parties for the hearing of
classification grievances. However, before ultimately hearing the case on the nlerits,
Arbitrator Hunter had occasion to render 2 interim awards dealing with preliminary issues
arising between the parties. On September 7, 1995 he ruled that, since the College
intended to introduce and rely on a prior award involving the parties, the matter should be
referred to a full Board of Arbitration and conducted according to the regular arbitration
process. (Subsequently the parties waived their right to appoint nominees to a board and
agreed to have Arbitrator Hunter hear the case under the regular arbitration process.). On
June 14, 1996 (following a June 6, 1996 hearing) Arbitrator Hunter issued his second
interim award dismissing a preliminary objedion of the College seeking to limit the scope
of the evidence which the union would be permitted to call. In that interim award he
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established a 3 step process for determining classification grievances. On September 4,
1997 Arbitrator Hunter convened a hearing into the merits and, on September 18, 1997
issued his award allowing the grievances and directing that the grievors be reclassified
asa Payband 10 retroactive to the date ofthe grievances. The College sought judicial
review ofthat award and, on June 24, 1999 the Divisional Court quashed the award of
September 18, 1997 (on the basis that the Arbitrator had failed to follow the 3 step
process outlined in his June 14, 1996 interim award) and directed that the matter be
remitted to another arbitrator for determination.
In due course the grievance was referred to me, sitting as a Sole Arbitrator.
The parties disagree in respect of all but two ofthe 12 job factors used to classify
jobs under the job evaluation plan. The Arbitration Data sheet sets out the following
ratings respectively of the College and the Union with respect to these factors.
College Union
Factor Level Points Level Points
1. Training/Technical Skills 4 71 5 91
2. Experience 4 45 5 57
3. Complexity 4 58 5 57
4. Judgment 4 66 6 102
5. Motor Skills 3C 25 2D 34
6. Physical Demand 4 39 4 39
7. Sensory Demand 3 28 5 50
8. Strain from Work Pressures 3 28 5 50
9. Independent Action 4 46 5 60
10. Communications/Contacts 2 52 3 88
11. Responsibility for Decisions 4 62 4 62
12. Work Environment 4 77 5 100
Total Points 597 807
Payband 9 12
2. Classification Guide Charts or Core Point Rating.
This case calls once again for a determination of a fundamental interpretive issue
which has arisen in a number of cases' viz, the question of whether and when it is
appropriate for an arbitrator appointed under the special procedure negotiated for the
determination of classification grievances to Core Point rate the position when arriving at
his/her decision as to the appropriate classification and payband.
In these cases the College has taken the position that, under the Job Evaluation
Manual negotiated by the parties (which manual forms the basis upon which raters and
ultimately arbitrators are to classify jobs) arbitrators ought not to core point rate a position
without having first determined that it could not be classified using the classification
guide charts negotiated by the parties; that, given impact that a finding ofatypicality has
on the commonality of standards across the system as a whole, the conclusion that a
position is atypical and warrants being placed in a higher payband is one that should not
be made lightly. The union on the other hand has taken the position that, precisely
because ofthe fact that positions vary a great deal from College to College, the use ofthe
classification guide charts is too blunt an instrument for measuring those differences and
that according it is appropriate to core point rate on a factor by factor basis in order to get
a more sensitive measure of the nuances in a particular position which warrant a different
rating and pay band. Thus, it has been suggested in some cases that all cases which
proceed to arbitration should be treated at least as potentially atypical and evaluated using
the core point rating plan.
With one known exception (to be discussed below) arbitrators have adopted the
position urged on them by the Colleges. In that regard they have focused on the
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provisions of the Manual that contemplate that guide charting is intended to be the
primary method to be used; that it is not necessary to find a "perfect fit" a "reasonably
close approximation" being sufficient; and that core point rating is to be used only for the
"relatively small number of truly atypical positions" which cannot be classified using the
classification guide charts. In Cambrian College (Rancourt) January 11, 1993)
(Brandt) I found that the union had failed to establish that duties and responsibilities of
the position fell within those listed in the guide charts for the position being claimed and
dismissed the grievance without further reference to the core point rating plan. It should
be noted that the issue presently before me was not argued; that the union argued the
grievance solely on the basis of the guide charts without reference to the core point rating
plan. In Cambrian College (Brett) (Springate, September 30, 1994) the issue ofwhether
and when it was appropriate to use core point rating was before the arbitrator. After a
review of the grievor's duties and responsibilities he concluded that, since certain of her
functions were not reflected in the typical duties ofher classification as set out in the
classification guide charts, it was appropriate to core point rate the position. In
Cambrian College (Vaillancourt) (November 14, 1994 (Brandt) I found the approach
taken by Arbitrator Springate in Cambrian College (Brett) as one which "best implements
the terms" of the job evaluation manual in that it places "primary emphasis on the Guide
Charts and reserves the use of the Core Point Rating plan to those cases in which that
approach produces no satisfactory result". Following this methodology, I concluded that
the position could be evaluated by reference to the Guide Charts alone and did not engage
in a factor by factor evaluation under the core point rating plan. In Loyalist College
(Higgins) (unreported, July 31, 1996) a board of arbitration chaired by Arbitrator Devlin
made reference to Cambrian College (Vaillancourt) and reached a unanimous
conclusion that the position could be evaluated using the guide charts and that there was
no need, therefore, to proceed to core point rating. Finally, reference may be made to
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Fanshawe College (James) (Brandt) (October 15, 1999) in which, without reference to
any ofthe earlier cases, I concluded that the typical duties in the classification guide
charts (for the grievor's position) did not "reasonably approximate" the duties actually
performed, and proceeded to core point rate the position and directed that it be re-
classified.
It is apparent from this briefreview ofthe case law that arbitrators have taken a
common approach to the issue of the process according to which classification disputes
are to be determined; an approach which requires that before recourse is had to core point
rating it must first be determined that the position cannot be satisfactorily evaluated using
the classification guide charts. That approach is also reflected in an earlier award of
Arbitrator Hunter in the matter currently before me. Inhis June 14, 1996 award (referred
to above) Arbitrator Hunter, after referring with approval to the award in Cambrian
College (Vaillancourt) characterized as "wrong" the position of the union that, since
only a small number of classification decisions in a large bargaining unit are grieved, the
mere fact that theposition has been grieved must make it, ipso focto, atypical. Arbitrator
Hunter went on to find the 3 step outline set out in the Manual appropriate for providing
the answer to how arbitrators are to determine the meaning of"atypicality"; viz,
determine what is the appropriate job family, determine if a "reasonably close
approximation't to a classification level in the Guide Chart is possible, and if it is
determined that a reasonably close approximation is not possible, core point rate the
position as one of the relatively small "truly atypical" positions.
The one exception to this line of cases is another decision of mine in Sheridan
College (Wenda Atkin)(Brandt, December 14, 1998). In that case, after having heard
submissions tied very closely to collective agreement provisions respecting the process by
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which classification grievances are referred to an expedited arbitrator, submissions which
had not been advanced before me in any prior cases in which I was involved (and not
referred to in any of the other awards of other arbitrators) I came to the conclusion that
once a classified case gets to arbitration the essential issue before the arbitrator is one of
determining how the factors in dispute should be core point rated. In view of its
significance to the matter now before me it is appropriate to quote at some length from
the decision in that case.
It is the position ofthe union that, when a dispute arises and the matter is
referred to arbitration under the provisions ofthe collective agreement, the
Arbitrator must in all cases reacher his/her conclusion on the basis of Core Point
Rating; that it is not an option to simply compare the duties and responsibilities of
the position with those set out in the Classification Guide Charts and find the
"reasonably approximate" best fit.
In support of this position the union relied on the provisions ofthe
collective agreement dealing with the processing up to arbitration of classification
complaints and grievances, arguing that those provisions clearly contemplate that
the matter before the arbitrator is that ofthe proper core point rating of the position
occupied by the incumbent grievor.
Briefly, the grievance/arbitration process for classification grievances is as
follows. At Step 1 the employee claiming improper classification makes what is
referred to as a 'complaint" specifying the job family andpayband claimed or,
where it is claimed that the position is atypical, the payband andjob family where
appropriate. (18.4.1) Prior to meeting to discuss the complaint the College is
required to provide a current PDF and indicate if the position is guide-charted or
core point rated. If core-point rated the college is to provide the total core point
rating for the position. Either at the meeting or within 10 days thereafter the
employee and the union must indicate whether the PDF and total point rating
appropriately reflect the assigned job and, if not, indicate what disagreements there
are with PDF and total point rating. (18.4.2.1) Within 5 days ofreceipt ofthe
employee's response to PDF and total point rating, College must give its decision
as to how the position is to be classified (18.4.2.2)
Ifgrievor is not satisfied with the College decision the matter proceeds to
step 2 where a meeting is convened at which the parties exchange core point
ratings by factor for the job in dispute following which the College is required to
give its written decision with 7 days ofthe meeting. (18.4.2.3.)
Article 18.4.3 provides that if the matter is not resolved under 18.4.2. it
may be referred to arbitration. Prior to the hearing both parties must complete the
Arbitration Data Sheet (Article 18.4.4.3.) Although the collective agreement is
silent on the matter the Arbitration Data Sheet asks the parties whether they agree
or disagree with the contents of the PDF (and in what respect they disagree, if any)
and further asks the parties to record their respecting core point ratings for each of
the job evaluation factors. By Article 18.4.4.5 the parties are required to submit to
the arbitrator a written brief in advance of the hearing which brief is to contain the
PDF supplied by the College, the Arbitration Data Sheet, a written submission by
the Union describing the complaint and referencing the appropriate sections of the
PDF and, at the option of the College, a written submission on the matter. Article
18.4.6.1 states that "the arbitrator is restricted to determining whether the grievor' s
PDF accurately reflects his/her assigned job content (where disagreement exists)
and to determining whether the grievor'sjob is properly classified pursuant to the
CAAT SUPPORT STAFF JOB EVALUATION MANUAL..
It is my conclusion that the issue remitted to the arbitrator concerns the
appropriate core point rating to be given for each of the factors in dispute. This is
clear from what is required to be exchanged by the parties prior to the hearing and
from what is included in the brief to the arbitrator. What is initially referred to
Step 2 (and ultimately to arbitration if settlement cannot be achieved) is a
disagreement between the employee (and his/her union) and the College over the
PDF and the total point rating assigned to the position. At Step 2 the parties are
required to exchange their respective core point ratings and failing settlement at
that stage the issue may be referred to arbitration at which point again, the parties
are required to exchange their core point ratings. Finally, it may be noted that the
Arbitration Data Sheet itself also contains a column to be filled out by the
arbitrator indicating his/her core point rating ofthe position.
It appears clear from this that the principal focus of the arbitration is
on the correctness of the core point rating. The College argues that, in
restricting the powers of arbitrators to determining whether the grievor'sjob is
properly classified pursuant to the Job Evaluation Manual, the collective
agreement imports those provisions cited above indicating that core-point rating is
to be reserved for those relatively unusual cases in which guide-charting does not
work. I am unable to read this single reference to the Job Evaluation Manual as
having the effect ofexcluding core point rating. While it is the case that our tasks
as arbitrators is to resolve these grievances by reference to the Job Evaluation plan
negotiated by the parties, it should be noted that this plan includes as one of its
elements the process of core point rating. Thus, the requirement that arbitrators
determine the case by reference to the Job Evaluation Manual does not exclude
reference to core point rating.
The position taken by the College suggests that before one can get to core-
point rating it is necessary for the union to establish that the position is atypical
and cannot be evaluated using the classification guide charts; that it must meet the
burden of demonstrating that the position occupied by the grievor/incumbent falls
within the minority of cases that are appropriate for core point rating. I do not
consider this to be supported by the collective agreement. That does not appear to
me to be consistent with the pre-arbitration exchange of core point ratings and the
submission of the core-point ratings to the arbitrator all of which are clearly
contemplated by the collective agreement.
In my view when the union chooses to take a grievance to arbitration it is in
essence claiming that the position in question is atypical; that the duties and
responsibilities performed by the grievor/incumbent are to be subjected to a factor
by factor analysis with a view to determining the correct total point rating and
appropriate payband, i do not see this approach as risking the integrity of the
classification system as a whole. The job evaluation scheme agreed to by the
parties is designed to serve as a general classification system for a large number of
different positions in different colleges with different areas of expertise and located
in different parts ofthe province. In that context it is not surprising that anomalies
might emerge in which the classification system designed to operate system wide
simply did not work. It appears to me, therefore, that the central issue at
arbitrations of these grievances is whether or not the case before the
arbitrator is one of those atypical cases deserving of core point rating. In my
opinion the College cannot prevent an examination of that question by
arguing that core-point rating is not appropriate at all. In my view that begs
the very issue that is put before the Arbitrator.
Having said this it should be observed that arbitrators should take care not
to come too easily to the conclusion that a position is atypical lest the cumulative
effect of such decisions will undermine the integrity of the classification system as
a whole and the principle of relative equality on which it is based. In this regard it
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may be noted that the proper use of the Core Point Rating Plan requires raters (and
presumably arbitrators) to have regard to the illustrative classifications (from the
Classification Guide Charts) for the purposes of ensuring some measure of
consistency in the application of the plan. (See, Section VII, page 3). These serve
as a check to make sure that the interpretation and application of the necessarily
general language in the factor definitions in the specific case before the arbitrator
remains as reasonably consistent as possible across the system taking into
account the inherent difficulties associated with administering any job
classification scheme. (Emphasis added)
It is clear that the position adopted in the Sheridan College case is not consistent
with that adopted in the other cases and, in particular, with that which I adopted in my
own earlier awards. Indeed, it is in open and direct conflict with my finding that the
union's position in Cambrian College (Vaillancourt), insofar as it "invited the
arbitrator essentially to disregard the guide charts in all cases that reach arbitration [and]
assumed that any cases that come to arbitration must, of necessity, be atypical", was
insupportable under the language ofthejob evaluation manual.
Although the union in the instant matter relies on the Sheridan College case, it
does not take the position that all cases that proceed to arbitration must be core point rated
by the arbitrator. However, it does argue that core point rating serves as a useful means
of analyzing whether or not the position "reasonably fits" within one of the classification
levels set out in the guide charts; that is, that it is necessary to subject the position to the
more rigorous analysis that occurs with core point rating in order to determine whether or
not this is a position which can be comfortably classified using the guide charts alone.
Counsel for the College in the present proceedings invited me to "reconsider" my
decision in the Sheridan College case. In support of that request a number of
submissions were made. It was submitted that in treating the process wherein the parties
exchange their respective core point ratings as defining "the issue" before the arbitrator I
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failed to take into account the nature of the expedited arbitration process and the place of
this process of exchange of information in that context. In that regard reference was
made to Article 18.4.3.6. ofthe collective agreement setting out some relatively unusual
provisions defining the kind of hearing that is contemplated under expedited arbitration;
viz, that "the process shall be informal and that legalistic processes normally used in
conventional arbitration shall not be used"; that it is generally "not the intent ofthe parties
to use outside legal counsel."; and that only 3 persons from each side may attend with one
being designated as spokesperson. Further, Article 18.4.3.4. sets out what information is
to be provided to Arbitrators in advance ofthe hearing (ie. PDF, Arbitration Data Sheet)
brief written submissions from each party) and provides that "no written submission or
materials can be considered at the hearing that have not been provided by the parties in
conformity with the process set out in this clause."
It was submitted that, given these restrictions on what could be introduced at the
hearing, the parties negotiated a pre-hearing "discovery" process designed primarily to
ensure that the arbitrator had sufficient information to permit the conduct of an intelligent
inquiry into the case and to render an informed decision. Further, it was submitted that
the process contemplated by Article 18.4.1 and 18.4.2. wherein the College provides a
current PDF and the parties meet to ascertain whether and in what respect there is
disagreement over the content of the PDF followed by an exchange of core point rating
by factor, without which the grievance cannot be referred to arbitration, is all intended to
narrow the issues in dispute to isolate the factors in respect ofwhich there remains some
disagreement and to facilitate thereby the resolution of these disputes through the
expedited process.
One of the practical difficulties that flows from the expedited hearing process is
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that the arbitrator may not, given the limitations on the rights ofthe parties to file prior
decisions of other arbitrators, be aware of how other arbitrators have dealt with particular
issues of common concern to the parties. Thus, in the Sheridan College (Wenda Atkin)
case, although I was aware of my own prior decisions, I was not made aware (quite
properly) of the decisions ofArbitrators Springate, Devlin and Hunter (supra) all of
whom adopted the same approach. While I cannot say whether or not I would have
reached a different decision that I did in the Sheridan College (Wenda Atkin) case ifI
been aware of those decisions I would certainly have had to give those decisions close
attention when I reviewed the submissions advanced to me.
I now have had those decisions brought to my attention and, having regard to those
decisions (which indicate a clear and consistent line of arbitral authourity) and to the
submissions of counsel for the College, I have come to the conclusion that the better view
is that which I earlier held (and which has been adopted by other arbitrators). In short, I
consider my own award in the Sheridan College to be wrongly decided to the extent that
it held or at least strongly suggested that all cases that come to arbitration should be core
point rated by the arbitrator.
It is noted at the outset that under the collective agreement (Article 18.4.5.1)
arbitrators in classification grievances are "restricted to... determining whether the
grievor'sjob is properly classified pursuant to the CAAT SUPPORT STAFF JOB
EVALUATION MANUAL.". Thus, it is the task ofthe arbitrator to determine whether
or not the Manual has been applied properly and, if not, to remedy that defect "pursuant
to the manual". In this regard it is helpful to examine the Manual with a view to
understanding the nature of the process that the parties themselves follow when they
engage in the process o1~ ob evaluation under this plan.
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The Forward to the Manual describes the method of evaluation as the
Classification/Point System (CPS) which "combines the major strengths of two
traditional job evaluation techniques the classification system and the point rating
system. Section I, entitled Introduction to CPS, provides an Overview of the
Methodology and notes thatmost of the positions covered are allocated to major
occupational groups ofjob families each ofwhichhas a Job Family Definition and job
evaluation guide charts for each of the positions within the family. Section I, page 2
provides as follows:
The Job Evaluation Guide Charts describe "every identifiable and meaningful
level of responsibility and qualification within each family (ie. each classification
level):
Summary of Responsibility
Typical Duties
In addition, the following job evaluation factors are described for every
classification level within each job family.
[There then follows a list ofthe 12 job evaluation factors (that are found in the
core point rating plan) all grouped underthe major headings of Skill, Effort,
Responsibility and Working Conditions]
The Job Evaluation Guide Charts are based on the factor definitions in the
Core Point Rating Plan. As such the Job Evaluation Guide Charts provide a
stable, reliable and consistent narrative standard by which most positions can be
quickly and relatively easily classified. (Emphasis added)
A relatively small number ofunique or atypical positions may not be covered by
the Job Evaluation Guide Charts. These positions are evaluated by the Core Point
Rating Plan.
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Section II of the Manual entitled Evaluation/Classification Guidelines states that
Job Evaluation is the process of systematically analyzing the duties and responsibilities
of a position in order to determine its relative value to an organization. (Emphasis added)
and proceeds to set out the guidelines to be followed in evaluating and classifying
positions. These are:
1 .Determine the Job Family to which it appropriately belongs.
2.Having determined the appropriate Job Family, the duties and responsibilities of the
position being evaluated are compared to the Classification levels, described in the
relevant Job Evaluation Guide Charts,...Considering the normal activities of the position
it is matched with the guide chart level which most accurately describes the actual content
and responsibilities of the position.
3. A relatively small number oftruly atypical positions that encompass duties and
responsibilities which are not adequately covered by the existing Job Family Definitions
and the Job Evaluation Guide Charts are evaluated by the Core Point Rating Plan.. This
section can also be used to core point typical positions if the position being evaluated has
duties that cannot be readily evaluated using the Job Evaluation Guide Charts. (Emphasis
added)
It is clear from this Introduction and Overview that it was the intention of the
parties that normally it will be the guide charts that will be used and that it is only a few
unique positions that will not be found to fit in the guide charts which the parties have
negotiated. Further, it is noted that, in developing the classification guide charts, recourse
is to be had to the factor definitions found in the Core Point Rating Plan. It is in this
respect that, as the forward to the manual states, the method of evaluation combines both
a classification system and a points system. Thus, in essence what thejob evaluation plan
does is to provide a basis wherein the parties can group various bundles of duties and
responsibilities into various positions, assign them to certain discrete job families,
evaluate and rate these bundles of duties and responsibilities by using the job evaluation
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factors that are found in the Core Point Rating Plan, and assign them a certain
classification which establishes their relative payband position. It is recognized,
however, that not all positions are capable of being evaluated in that manner and that, in
respect of those positions whose "bundles" of duties and responsibilities that do not fall
within any of the established positions or job families, raters (and arbitrators)are
expected to use the Core Point Rating Plan since it is those same job evaluation factors
therein set out which were used by the parties initially to guide chart the majority ofthe
positions. Put anotherway the Classification/Points System is a single system which
allows for the use ofthe same job evaluation factors to rate all ofthejobs. Those which
fit easily into the established bundles of duties are evaluated by reference to the guide
sheets which, as noted, are based on the factor definitions in the core point rating plan.
Those which do not easily fit into the established bundles of duties are evaluated by
reference to the Core Point Rating Plan directly.
Thus, contrary to the position taken in the Sheridan College case, no particular
significance should be attached to the fact that the parties engage in core point rating as a
part ofthe pre-hearing discovery process and provide the results of that rating to the
arbitrator in advance of the hearing. Information of this nature assists the arbitrator in
understanding the scope ofthe disagreement and facilitates conducting the kind of inquiry
that is envisaged under Article 18.4.3.6. However, it does not conclusively establish that
"the issue't before the arbitrator is how the position should be core point rated. Having
regard to the clear indication in the Manual that atypicality is considered to be relatively
rare and involve only "unique" positions, the approach taken in the Sheridan College
case appears to stands the process on its head. It may well be that many of cases which
come to arbitration are those in respect ofwhich, for various reasons, the fit may be a
difficult one. However, that does not justify jumping directly to core point rating, as the
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union suggests. The process requires that certain steps be followed and core point rating
is only appropriate once it is found that the position cannot be classified using the guide
charts.
However, having said this, it should be made clear that the party claiming that a
position can be guide charted bears an evidentiary onus of establishing that the core
duties of the position do compare closely to the typical duties set out in the classification
guide charts. As would be expected the guide charts cannot capture the nuances ofall
jobs in the system and in orderto achieve the objective of applying common standards
across the system the language describing what are the typical duties of a particular
classification must, ofnecessity, be general. Thus, in most cases, evidence will need to
be led establishing that the particular position in dispute does fall within the general
language set down in the classification guide charts. Much of that evidence may well be
the same kind of evidence that would be led if the position were to be core point rated.
However, the crucial difference is that it is being led, initially at least, for the purpose of
determining whether or not the position can be guide charted. If it is found on the
evidence that it cannot be guide charted then it is appropriate for the arbitrator to core
point rate the position but not until that initial determination is made.
Thus, as a practical matter, the arbitrator will need to hear all of the evidence, that
which is relevant both to the question of whether the position should be guide charted or
whether it should be core point rated. If the arbitrator, having reviewed the evidence,
concludes that the position cannot be guide charted, he/she can then proceed to the core
point rating of the position. It is in this context that the pre-arbitration exchange of the
parties respective core point ratings must be viewed. They enable the arbitrator to
conduct a fuller investigation into the nuances of the position in order better to understand
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it and to make a reasonably informed judgment as to whether it can or cannot be
classified using the guide charts. Where the award in the Sheridan College case erred is
in concluding that core point rating is required in all cases. That conclusion is not
supportable in view of the provisions of the Job Evaluation Manual set out above.
Support for this conclusion, by implication at least, may be derived from the
Ontario Divisional Court Review of Arbitrator Hunter's September 18, 1997 award in the
instant matter. In that award Arbitrator Hunter commenced Step 1 (of the analysis that he
had set down in his June 14, 1996 interim award) by determining whether ornot the
position fell within the Skilled Trades Worker family and concluded that, since the Job
Family Definition for this position contemplated that incumbents would possess the
"skills and knowledge of one or more trades" it fell within the Skilled Trades Worker
family. He then found that the "mere fact that the incumbent must exercise the skills of
more than one trade does not, by itself, make the position atypical" and proceeded to core
point rate the position and conclude that the grievors should be raised to Payband 10.
As noted the College sought judicial review ofthe award. In its submissions the
College argued that Arbitrator Hunter had essentially skipped step 2 ofthe 3 step
procedure that he had set down in his June 14, 1996 award, that is, that he went to step 3
(core point rating) without considering the duties and responsibilities portion of the PDF
to determine if there was a "reasonably close approximation" between the PDF s duties
and responsibilities and the contents of a classification level described in the job
evaluation manual. The respondent union argued that the collective agreement did not
require an arbitrator to follow the 3 step process. The court found that it "had difficulty
with that submission in view ofthe fact that Mr. Hunter sets out clearly in his June 14,
1996 decision the three steps he was required to follow." Thus, the Court found that there
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was error on the face of the record in that "the Arbitrator failed to follow the three steps
that he had previously determined he had to follow" and quashed the award.
Although the decision ofthe Divisional Court appears to be based on the
somewhat narrow ground that Arbitrator Hunter did not follow his own 3 step process
and does not explicitly state that this 3 step process is required under the collective
agreement- it is clear that the court did not disagree with Arbitrator Hunter's analysis in
his June 14, 1996 award. In my opinion this constitutes at least an implied acceptance by
the Court of the notion that, before a position can be core point rated, it must be
determined that there is no "reasonably close approximation" between the duties and
responsibilities of the position and the typical duties of a classification level as set out in
the classification guide charts.
Accordingly, I intend to follow the procedure as outlined in the Job Evaluation
Manual which may be summarized as follows:
1. Determine the Job Family to which the position belongs based on the central
duties of the position (i.e. the principle of core theory).
2. Compare the duties and responsibilities of the position being evaluated to the
Classification Levels described in the relevant Job Evaluation Guide Charts and,
considering the normal activities of the position, match the position with the guide
chart level that "most accurately describes the actual content and responsibilities of
the position" and which is a "reasonably close approximation" thereof.
3. Core point rate the position where the duties and responsibilities are not
adequately covered by the Job Family Definitions and the Job Evaluation Guide
Charts or where the position being evaluated has duties that cannot be readily
evaluated using the Job Evaluation Guide.
19
3. The PDF and the Classification Guide Charts.
The PDF summarises the position of Industrial Millwright Mechanic as follows:
Under Direction of the Manager, the incumbent repairs and maintains college's
mechanical systems such as air handling units, pumps, air conditioners, water
systems and other related equipment as well as performs minor installations of
mechanical and plumbing equipment.
The significant duties and responsibilities ofthe position are as follows:
1. The incumbent will diagnose problems, and effect repairs to
mechanical/plumbing equipment such as pumps, air handling systems, plumbing
systems and fixtures, hot water boilers, air conditioners, compressors and related
academic equipment to ensure equipment operates at maximum efficiency.
40%
2. Performs scheduled maintenance to mechanical/plumbing equipment by adding
suitable lubricates, changing air filters, adjusts or changes drive belts to achieve
normal equipment life expectancy.
35%
3. Will monitor add or adjust chemical additives to closed hot water heating
systems, closed chilledwater system and humidification system to prevent oxygen
corrosion and scaling ofmetal components and bacterial contamination.
10%
4. Ensures that minor installations are performed in such a way that all building
codes are met or exceeded.
5%
5. Will make recommendations for the purchase of replacement parts or new
equipment. Will make minor purchases and maintain inventory of repair
components
5%
6. Performs other related duties that may be assigned 5%
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The Guide chart for Skilled Trades Worker provides as follows:
Typical duties performed require the application of skills and sufficient knowledge and
experience to qualify for a Certificate of Qualification or Certificate of Apprenticeship in
skilled trades such as:
General Carpenter, Commercial and Residential Painter, Brick and Stone Mason,
Welder, Locksmith, Nurseryman-Landscaper.
Typical duties performed require the application of skills and sufficient knowledge and
experience to qualify for a Certificate of Qualification or Certificate of Apprenticeship in
compulsory certified trades such as:
Motor Vehicle Mechanic, Electrician, Plumber, Refrigeration and Air
Conditioning Mechanic.
Although the Industrial Mechanic Millwright is not among the listed examples ofthese
trades, the Notes to Raters identifies the trade of Millwright as one of the non
compulsory certified trades. That is confirmed by a Ministry of Skills and Development
publication which lists Industrial Mechanic Millwright among the Voluntary Skilled
Occupations and Plumber and Refrigeration and Air conditioning mechanic among the
Compulsory Skilled Occupations.
4.. Issues and Conclusions
It is submitted by the College that the fact that the grievor may be engaged in
multi-skilling is of no particular moment since, as found by Arbitrator Hunter, the job
family definition clearly contemplates that incumbents in this classification have the
"skills and knowledge of one or more of the skilled trades". Further, it is noted that the
typical duties set down in the classification guide chart for Skilled Trades Worker are
those which are performed by persons with "skills and sufficient knowledge to qualify for
a Certificate of Qualification" in both the voluntary skilled occupations (which includes
Millwrights) but also the compulsory skilled occupations which includes, plumbers and
21
refrigeration and air conditioning mechanics. Thus, it is submitted that the mere fact that
the grievors may, in addition to their "normal" duties, also be engaged in some
"plumbing" duties and some "air refrigeration and air conditioning" duties, does not take
them out of the typical duties of their classification as their classification is one which
contemplates the exercise ora number of skills in a number of different trades. Thus, in
the submission of the College, the position fits comfortably within both the Job Family
Definition and the duties and responsibilities as set down in the guide chart for Skilled
Trades Worker and should be so classified. In short, there is a "reasonably close
approximation" to those duties that permits the position to be classified using the Guide
Charts without Core Point Rating.
The union submits that guide charting may be useful where the dispute is between
the parties is as to which oftwo or more guide chart entries is the more appropriate. In
that situation the arbitrator can, it is conceded, conduct a comparison between the typical
duties of, for example, two different positions in the same job family (eg. Programmer
and Programmer/Analyst) or two different levels ofthe same position (eg. Programmer A
and Programmer B). However, it is suggested that where, as here, there is only one guide
chart in the Skilled Trades Worker family ofjobs, it provides little "guidance" to raters or
arbitrators; that ajob familywith only one guide chart will inevitably contain some
positions in the system that are anomalous and which require an examination of the
atypicality of that position across the full spectrum of all ofthe factors.
While there is no question that the task of guide charting is made more difficult
where there is only guide chart that does not, in my view, change the procedure that must
be followed. There are a number of Job Families (11 out of 29) which contain only one
position and one guide chart. (Systems Analyst, Technical Support Specialist,
22
Child/Adult Development Counsellor, Early Childhood Education Worker, Nurse,
Nursing Assistant, Switchboard Operator, Bus Driver, Driver, General Maintenance
Worker, Security Guard). Given the lengths to which the Manual goes in setting out a
procedure for raters (and arbitrators) to follow in classifying positions, it cannot be the
case that for slightly less than half of those positions, a different procedure than that
contemplated was intended. The Manual reserves core point rating for "a relatively small
number ofunique or atypical positions". The union argument suggests that every one of
these positions should, at least potentially, be treated as atypical and core point rated. I
am unable to agree.
Accordingly, it is necessary to determine initially whether or not the position be
classified using the guide charts.
It is my conclusion that the position can be so rated using the guide charts and that
core point rating is not necessary.
There is no dispute that, insofar as the position of Industrial Mechanic Millwright
requires "the application of skills and knowledge of more than one of the skilled trades",
it falls within the Skilled Trades Worker family, the definition for which has been set out
above.
The next step is to compare the duties and responsibilities of the position against
the typical duties set down in the Guide Charts for the position of Skilled Trades Worker
(which have been set out above). That tasks presents somewhat different challenges in
this case since there is one respect in which the Classification Guide Charts for the
Skilled Trades Worker differ significantly from those of all other classifications. Rather
23
than describe the typical duties of the classification in language which, in varying degrees
of generality, is functionally related to specific tasks (eg. Performs maintenance duties
such as changing air filters, cleaning drainage systems and clogged traps etc. (Stationery
Engineer A)), the typical duties of a Skilled Trades Worker simply refer generally to
duties which require the application of the "skills of the trade" in question. Moreover, to
add to the generality of the description, they encompass both the compulsory skilled
occupations and the voluntary skilled occupations.
Thus, the comparison that needs to be made with the duties and responsibilities of
the position involves a comparison of the provisions of the PDF (as expanded upon and
contextualized in the evidence) against a standard which is expressed in exceptionally
general language and which cannot be given meaning without reference to some other
"external" standard, such as Ministry of Skills Development requirements with respect to
what is required to qualify for a Certificate of Qualification or Apprenticeship in the trade
in question.
I turn first to the PDF and the viva voce evidence respecting the duties and
responsibilities of the grievors. In this regard it was agreed that the evidence of Mr.
Belleau would be accepted as descriptive ofboth his duties and those of the other grievor,
Mr. Leroux.
The duties and responsibilities as contained in the PDF have been set out above.
Mr. Belleau had no substantial dispute with the manner in which the PDF outlined in
general his duties and responsibilities. His principal concern was with the reference in the
Position Summary to the incumbent working "under the direction of the manager". In his
view the position was more self directed than is contemplated by that language.
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It is clear from the evidence that the grievors do not "work under the direction of
the manager" if by that it is meant that theirwork is closely supervised. In my view this
language in the PDF should be read in the context oftheir being skilled tradespersons
over whom "direction" by someone like Mr. Vopni who was not a millwright, must of
necessity be only very general in nature. Subject to that caveat and understanding I find
the language to be acceptable.
The grievor testified at length with respect to his duties and responsibilities at the
College. That evidence reflected and confirmed what is set down in the PDF with respect
to his duties and responsibilities, viz, that his main duties are the maintenance of HVAC
systems, boilers, plumbing systems, pneumatic systems and microbiological control.
Work comes to the grievors in a number of different ways. Some of it is computer
generated scheduled preventive maintenance of which they have prior knowledge and for
which they can plan. Other jobs come by way ofwork orders that may be generated out
of the office or verbal directions (received on a walkie talkie) or from the lead hand to
attend to a particular matter. Mr. Belleau testified that at any one time he could have
between 40 and 60 different tasks on the go tasks which he (and Mr. Leroux) would
need to priorize based on the nature of the problem that required their attention. He
estimated that in any particular week they would be "lucky" if they could do as much as
10% of the scheduled preventive maintenance and that most of his work involved
attending to the unplanned problems that came to them on a more or less urgent basis.
A document prepared by the grievor for Mr. Vopni, upon his arriving in the
department as Director of Physical Resources, illustrates the breadth of the tasks done.
They include such things as: checking pneumatic and plumbing systems, replacing a
25
washer to correct a hot water leak, loading chemical, reconditioning pistons, clearing an
obstruction in a toilet, checking for source of an odour in a crawlspace, trouble shooting a
high pressure problem on the fire sprinkler system, trouble shooting noise in a fan,
installing a new compressor, instructing lead hand on process and maintenance ofbiocide
treatment for the chiller, cleaning and lubricating fan blades, and discussions at various
times with contractors on various issues.
The grievor also testified at some length with respect to why he disputed the
College's rating ofthe various job evaluation factors. It is apparent from a review ofthat
evidence that, with respect to many ofthe factors, the grievor's primary concern is over
what he perceives to be the failure ofthe College to recognize and reward the fact that,
notwithstanding that he is certified as an Industrial Mechanic Millwright, he is required
to have skills and knowledge and the ability to perform various duties in a number of
unrelated areas, "multi-skilling" as he referred to it. In his view the factors of I'raining
and Technical Skill and in Experience should have been rated more highly in view of his
duties in plumbing, maintaining air conditioning and some stationery engineer work.
Similarly the position was rendered more complex (than recognized by the College)
since, as he was required to be able to trouble shoot in a number of different areas
(plumbing, stationery engineer, refrigeration) he engaged in tasks which are "relatively
unusual" and involved "specialized processes." He considered the required degree of
judgment to be "high" because of his need to be competent in some many different areas
and, he considered that the strain he suffered from work pressures and multiple or
conflicting deadlines warranted a higher rating than that given to him by the College
because of the fact that in any particular day he needed to be able to leave one type of
system and attend to a different system requiring a different skill and knowledge base.
26
In his cross examination the grievor confirmed that none of the duties that he
performed took him outside the scope of skilled trades work, that what he did was what
one would normally expect a skilled trades worker to do even though a typical skilled
trade worker is qualified in only one field. With respect to his plumbing duties the grievor
(who is not a certified plumber) confirmed that none of the plumbing work that he did
was work which could only be done by a certified plumber.. Similarly, he confirmed
that, while he did some of the work of a stationery engineer, none of it was work which
only could be done by a certified stationery engineer or a certified electrician.
The grievor further confirmed that some of the maintenance work, eg. start up,
mid-term maintenance, and shut down of gas fired equipment (heating and cooling
systems) is done by certified gas fitters who are hired as outside contractors by the
College- although he maintained that he and Mr. Leroux still monitored the equipment for
gas leaks and did repairs, eg. welding (for which he was trained as a millwright).
The grievor further agreed that as a millwright he was in essence a "jack of all
trades", that his skills were interchangeable with those ofother trades. He agreed that he
was not required to have the skills of a plumber and that none of the "plumbing" work
that he did was of a sort which required inspection to see that it met with code standards.
However, he maintained that he still used some of the specialized tools used in the
plumbing area and that he had to be able to follow specifications and meet the code
standards respecting, for example, solder use.
With respect to his duties in connection with heating and air conditioning systems
the grievor confirmed that he was expected to and was competent to perform duties on the
various valves, fans and gauges that were a component of those systems; that he was
27
trained to deal with these various types of components regardless ofwhich system they
belonged to (although there might be a different method of trouble shooting depending on
which system he was working in).
The grievor was asked whether or not, given that his trade was one ofthe
voluntary skilled occupations, he ever did the work of a compulsory trade. He agreed that
he could not do the work that only a certified plumber was entitled to perform and was
not aware ofthe limits of what kind of"plumbing" work he was allowed to do. However,
he maintained that he and Mr. Leroux had worked on a number ofprojects which he
characterized as "new installations" (which normally would need to be done by a certified
plumber) These included re-circulation of a hot water line to the mens shower room in
the fitness centre (which involved replacing existing lines and rerouting them to a
different location); installing a trap intercepter to an existing plumbing line that was
clogging; installing supply water lines to an existing water feed and attaching new taps to
provide a water supply to the maintenance mechanical room. He confirmed that, apart
from these, there were many other new installations that have been required for the
renovation of buildings that had been contracted out to a certified plumber.
With respect to duties performed in connection with the HVAC Systems the
grievor confirmed that he ensured that there was proper pressure in the systems and, in
that regard, did some trouble shooting to identify the problem, eg. a malfunctioning gauge
(in which event he would fix the gauge), a problem in the electrical supply (which would
be dealt with by the electrician), problems with too much calcium build up in the tubing
or a problem in the ignition process- in which event the contractor (who did start up, mid-
season and year end service on the boilers) would be called in. The grievor maintained
that there was nothing stopping him or Mr. Leroux from doing work on the burners that
28
the reason why it had been contracted out was that they had too many otherjobs to do and
the College was short staffed. He stated that they had changed the igniters themselves
but agreed that under the Regulations there were certain things that he and Mr. Leroux
could not do without the contractor being present.
Further, the grievor agreed that a contractor would be called in in certain situations
where there was an equipment problem involving gas. However, he maintained that there
were many things that he and Mr. Leroux could still do to deal with a gas leak, eg. take
out and clean a valve, isolate the boiler by shutting off the main valve. He agreed
however, that in doing any of these things, he was still using the skills of a millwright,
although applying them in a different area.
There can be little question from all of this evidence that the grievors perform a
variety of different functions that require the skills and knowledge of a number of other
skilled trades. Although there is evidence that, on occasion, they may have done work
which only the certified skilled tradesperson (plumber, refrigeration and air conditioning
mechanic, gas fitter) was entitled to do, the bulk oftheir work in these other skill areas
did not require that level of expertise and that, in the main, the College had those tasks
performed by outside contractors using the grievors as skilled "jacks of all trades" to
assist.
I turn to comparison of those duties with the typical duties of a Skilled Trades
Worker as set out in the Classification Guide Charts.
As noted above, in view of how the typical duties are expressed in the guide chart,
it is necessary to compare the grievors' duties with the typical duties of an Industrial
29
Mechanic Millwright. Evidence ofwhat those duties are was presented in the form of a
"Competency Analysis Profile" for the position oflndustrial Mechanic (Millwright)
prepared by the Ministry of Skills Development. That document sets out 22 Areas of
Competency each of which has various specific performance objectives. Included among
the Areas of Competency are such things as:
Use trade calculations and science;
read drawings and schematics;
use hand and power tools;
set up and use machine tools;
select and use materials and fasteners;
select and apply lubricants;
install and maintain material handling, power transmission, pneumatic and hydraulic
systems;
install and maintain compressors and pumps, bearings, seals and packing, pipe systems,
valves, fans and boilers.
By way of illustration the Area of Competency entitled "use hand and power tools"
lists a number of specific performance objectives all ofwhich appear to be grouped
roughly into functional categories; viz,
1.use sockets, torque wrenches and hydraulic tensioning equipment;
2.use punchers, pliers, hammers, screwdrivers, chisels, pry-bars, levers and scrapers;
3. use files, saws, drills, use rulers, tapes, squares andplumb bob;
4.use tube and pipe benders, sanders and choppers and power jacks;
5.use shears, magnetic drills, grinders and hand millers; and
6.use power saws, impact tools.
The grievor agreed that (although some of them may not have been a part ofhis
formal training as an Industrial Mechanic Millwright (which he took in 1982)) he was
currently required in his job to be competent in most of the various areas of competency
listed and to be able to achieve the various stated specific performance objectives.
Further, he confirmed that many of these (eg. Piping and tubing, installation of fittings
and flanges) had application both to the plumbing duties other multi-skilling tasks that he
30
was required to do from time to time.
In my opinion this evidence is compelling and meets the evidentiary onus on the
College of establishing that the duties and responsibilities of the position bear a
"reasonably close approximation" to the typical duties as set down in the classification
guide charts. Thus, I am satisfied that the duties and responsibilities performed by the
grievors do fit within the guide charts for the position of Skilled Trades Worker and that
the position should therefore be classified and placed in payband 9.
Thus, I find that the grievors are properly classified as Skilled Trades workers,
Payband 9.
The grievances are dismissed.
Dated at LONDON Ont. this __day of LI 2001
Gregory J. Brandt, Sole Arbitrator