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HomeMy WebLinkAboutFiore 95-01-01IN THE MATTER OF AN ARBITRATION between GEORGE BROWN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (hereinafter referred to as the College) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 557 (hereinafter referred to as the Union Classification Grievance of Carmen Fiore et al. Sole Arbitrator: G. J. Brandt Appearances; For the College: Christine Parsonage, Human Resources Judith Halovanic, Mgr. Housekeeping and Security Mike McGee For the Union: George Richards, Grievance Officer Douglas Johnson, Union Representative Carmen Fiore, Grievor Hearing: George Brown College April 4, 1995 2 AWARD The grievor, Carmen Fiore is classified as a Caretaker A, Payband 2 and is employed on the afternoon shift (4:00 p.m. to 12:00 a.m.) at the Casa Loma campus of the College. It is agreed by the parties that, for the purpose of this case, he is representative of all other caretakers employed at the Casa Loma and St. James campuses of the College and who, in general, work either the afternoon shift or the night shift. It is the position of the union that the grievor(s) are improperly classified as Caretaker A payband 2 and should, instead, be classified as Caretaker B, payband 4. The resolution of this grievance turns essentially on the characterization of certain functions which the grievor(s), in general, perform as part of their assigned duties and which the union claims fall within the typical duties set out in the classification guide charts for Caretaker B. The typical duties of a Caretaker B are there set out as follows: In addition to the duties described for Caretaker A: - Uses maintenance vehicles such as snow ploughs and tractors to maintain college grounds. - Performs minor repairs to college buildings and equipment as appropriate. - Maintains maintenance equipment in good working order. - Provides direction and guidance to more junior caretakers. (Emphasis added) It is the position of the union that, at the time of the grievance in March of 1994, the grievor(s) were, albeit for brief periods of time only, engaged in the performance of "minor 3 repairs to college buildings and equipment" and in the "maintenance of maintenance equipment in good working order". It is further submitted by the union that if these duties are included among the duties regularly performed by the grievor(s), they should be classified at the Caretaker B level. Further, it is argued that, if core point rating is used to determine the classification, the application of the core point rating factors to the functions in question should result in a point total placing the grievor(s) in payband 4. That is the payband assigned to incumbents in the Caretaker B classification. The dispute arises out of a decision by the College to re- write the grievor's PDF and to remove certain duties that had appeared in an earlier PDF. This occurred as part of a general review of all of the PDF s in the College on the occasion of the implementation of the Gender Neutral Classification System. Since many of the existing PDF s were outdated the College decided to do a complete review and evaluation of all the support staff position descriptions in order to bring them all up to date at the time that the new classification system was to come into operation. This was a process that was undertaken over a number of months culminating, for this particular classification at least, in July of 1994. Initially a PDF for this position was generated in May, 1994 and signed by the grievor's supervisors (although not by him) on 4 or about May 6th. That PDF was later changed when Ms. Halovanic became Manager of Housekeeping and Security in May of 1994 and conducted the general review of the PDF s in her department. In the course of that review Ms. Halovanic determined, inter alia, that certain duties should be removed from the PDF and, accordingly a new July 21st PDF was written. The May PDF set out the Duties and Responsibilities of the position as follows: 1. Performs typical cleaning duties to maintain all campus facilities such as: sweeping, mopping stripping and waxing of floors, vacuuming and steam-cleaning of carpets. Cleans and disinfects washroom and shower facilities, replenishes all types of washroom supplies dusting and cleaning of furniture and fixtures, collects refuse consistent with College's recycling programme, empties and cleans receptacles, operates equipment required for above tasks. Performs routine maintenance on cleaning equipment. 70% 2. Performs basic ground duties as required. Maintains clean and safe external properties/pathways as required by regulatory bodies, 10% 3. Performs minor maintenance functions (eg. replacing light bulbs) and assists in basic security of College property (eg. doors locked, etc.) 5% 4. Informs supervisor (or designate of significant maintenance or repairs required to college properties. 5% 4. Moving of furniture and equipment, set-up/teardown of special functions. 5% 5. Other duties as assigned. 5% TOTAL 100% (Emphasis added) 5 The description of duties and responsibilities in the July 21st PDF relied on by the College differs from the May 6th description in that the time spent on the first duty is 75% (rather than 70%) and, significantly for present purposes, deletes the reference to duty number 3, viz, "performs minor maintenance functions (eg. replacing light bulbs) and assists in basic security of College property (eg. doors locked). What is essentially at issue in this case is the question of whether this duty should continue as part of the PDF and, if so, how it should be rated in terms of the classification system. Before turning to the merits of the case it is necessary to resolve a preliminary matter raised by the College. Ms. Parsonage, on behalf of the College, expressed some concern over the fact that, in this grievance as well as another grievance (George Brown College v. OPSEU/ Mariconda), the position taken by the union at arbitration differed from that taken at the Step II grievance meeting where, it is claimed, the grievor(s) did not dispute the description of the Duties and Responsibilities set down in the July 21, 1994 PDF that was relied on by the College. Specifically, no dispute was raised concerning the deletion of the duties originally included in the May 6th PDF. It was submitted by the College that the Union ought not to be able to adopt a position at arbitration different from that taken at the Step II grievance meeting. 6 This position is without foundation. It is a well established principle of arbitration procedure that the positions taken by the parties during grievance meeting discussions are privileged and that, apart from questions of estoppel, nothing prevents a party from resiling from any agreements as to fact or law that may have been reached during the grievance meeting. That is necessary in order to encourage good faith attempts at settlement without risk of finding concessions made for that purpose used against one at arbitration. Further, it is to be noted that neither the grievor nor the local union were represented at the Step II grievance meeting by an OPSEU Grievance Officer who, had s/he been present, may have advised the grievor and local union to take a different position than they did. Accordingly, I consider it appropriate to inquire into the matter of whether the disputed duties were a part of the grievor(s) ' regular duties and responsibilities and, if so, how those duties should be considered in terms of the classification system. Having said this I feel constrained to add that the negotiated procedure for expedited arbitration does not work well where there are outstanding disagreements as to the contents of the PDF and particularly where that disagreement relates to whether the duties are actually performed. Ideally, under the expedited process, the task of the arbitrator is essentially one of evaluating the "agreed upon PDF" against the Job Evaluation 7 Manual. Where disputes remain as to what duties are actually performed or whether those duties are assigned or voluntarily assumed the inquisitorial process does not function well. Fortunately, in this case, that difficulty is eased since the issue is less about whether the duties in question are performed and more about how they are to be characterized. It is useful to break the duties in question down into 3 separate categories: i) Minor repairs and maintenance to the building ii) Maintenance of cleaning and polishing equipment iii) Basic security duties. 1. Minor repairs and maintenance to the building. Four different duties are relied on in this regard. a) Replacement of Light Bulbs b) Resetting circuit breakers as required. c) Removing and cleaning grills on heating and air conditioning vents. d Operating the water valve shut off in emergencies. e Repair of broken windows. a Replacement of Light Bulbs At the time of the grievance (March, 1994) the grievor was told by his lead hand, Mr. Mariconda, to replace fluorescent tube 8 lights in the ceiling if he saw one burnt out. The grievor estimated that at the relevant time he would have to replace a bulb approximately once or twice a month. He stated that he began doing this work in the spring of 1992 and, although he had been told not to replace mercury bulbs (which were to be replaced by maintenance workers) he was never told not to replace the fluorescent bulbs until the July, 1994 PDF was written. However, this particular duty was never made a part of his PDF until it appeared in the May 6th PDF referred to above. Mr. McGee, the grievor's supervisor at the time of the grievance, referred to certain discussions that he had with the grievor and with Mr. Mariconda in December of 1993 when the issue of including reference to this duty in the PDF was first raised. He stated that, although the grievor was doing this work, the vast majority of it was being done by maintenance workers (on overtime rates) who were concerned about losing this function. Mr. McGee wanted to save costs and proposed a removal of this duty from that classification and its assignment to the lower rated caretaker classification. Following further discussions with the maintenance workers this duty was put in the Caretakers PDF in May of 1994. However, it did not remain there for long. Ms. Halovanic, who became Manager of Housekeeping and Security at about the same time in May of 1994, was unhappy about the offloading of this 9 high cost item, which she considered to be a maintenance duty, on to the caretakers in such a fashion as to take them away from their cleaning duties. Consequently, as indicated, when the July PDF was written, this duty was removed. b) Resetting circuit breakers as required. As the caretakers simultaneously use a number of different pieces of equipment that draw electrical power there are occasions (possibly 2-3 times a week) when the circuits will break and it will be necessary to locate the circuit breaker and turn the power back on. This may require checking several (up to 20) different panels on the floor until the broken circuit is found. c) Removing/cleaning heating/air conditioning grills. Both the air conditioning and heating units in the room are covered by a panel which accumulates dust. In order to clean them it is necessary to climb on a ladder, unscrew the panel, take it down and, after cleaning them, replace the panel. It was estimated that this was done approximately once a month. d) Operating the water valve shut off in emergencies. When, for example, a toilet is overflowing, it is necessary to locate the shut off valve and turn the water off. In the circumstances it is not possible to wait for a maintenance worker to come and do the job. It may be noted that, although this 10 specific duty is not referred to among the duties of responsibilities of either PDF, one of the examples given in the July (but not the May) PDF of where judgment needs to be exercised is to identify the source of water found on a washroom flor and, once identified, to turn the water off by closing the valve or adjusting a floater. The grievor admitted that this was a "fair" description of a situation in which judgment was required. e) Repair of broken windows The grievor stated that rarely (once or twice a year) he may be required to remove the broken glass from a window (in a door panel) and fill the hole with a piece of cardboard and mark it in some fashion to caution people. ii) Maintenance of Cleaning and Polishing Equipment. In the course of carrying out his cleaning duties the grievor uses various pieces of equipment in respect of which it is necessary to perform various operations which it is claimed constitute "maintenance" of the equipment. Once or twice a week he changes the pads on a floor polisher (buffing machine), a task which requires him to remove a piece from the bottom (by rotating it counterclockwise), remove the used buffer pad, replace it with a new pad and rotate the piece back into its locked position. No tools are required to perform this job which takes between 5 and 11 10 minutes to complete. A similar task is performed with respect to an autoscrubbing machine that is used to wash and sanitize the floors. Once or twice a week the grievor adjusts or replaces pads by unscrewing a large bolt screw by hand, removing the pad, replacing it and re- securing it. Since the floors are not level it is also necessary from time to time to adjust the "squeegees" at the back of the machine to ensure that they are resting flat on the floor and mopping up water. This is done by adjusting, by hand, screws on the side and adjusting the squeegee upwards or downwards, a job which takes a couple of minutes to do. There is also a hand operated lever on the side of the autoscrubber that will adjust the squeegee. Approximately once or twice a year the grievor may be required to change the belts on the vacuum. This is done by unscrewing the motor head, removing a nozzle, taking out the belt and clipping another belt back on, and replacing the nozzle - a job which takes between 15-20 minutes. The union also relies on certain repair work performed with respect to electrical chords, particularly those attached to the vacuum cleaners. When vacuuming in the shop areas these chords are dragged underneath metal drafting tables with sharp edges resulting in some fraying of the chord. Initially, the chord is repaired with electrical tape. However, if the situation becomes 12 dangerous the grievor has shortened the chord by cutting it, stripping the wires, and then re-attaching the plug. He stated that he does this on the instruction of his Lead Hand and that he is required to do this approximately once every two months. iii) Basic Security duties. In addition to ensuring that classrooms (and other rooms he has cleaned) are locked and secured after leaving the grievor claims to be responsible for locking 2 exterior doors of the building at 10:00 p.m. each night when, absent special permission, no one else should be in the building. If faculty or students, with permission, wish to enter the building after that time they must enter by the main entrance (which is open all night) and at which is stationed a security guard who is not supposed to leave his post. Consequently, the grievor considered himself to be on a "constant security watch" during his rounds with an obligation to check and report on intruders and to report vandalism or theft. He stated that if, while on his rounds, he discovered an intruder in the building after 10:00, he was expected to approach them, check to determine if they had permission to be there and, if not, to direct him to see the security guard. He had no authority to eject them from the building. However, he could not refer to any incident prior to the grievance where this had actually occurred. Nor could he say that he had ever been instructed to maintain a "constant security watch". Rather, it was his interpretation of the reference in 13 the May PDF to his performing "assisting in basic security" that led him to that conclusion. Ms. Halovanic did not dispute the grievor's claims that he performed the various tasks referred to above. However, it was her opinion that the removal and cleaning of heating and air conditioning vents was a "cleaning" rather than a "maintenance" function; that resetting circuit breakers and shutting off water valves when necessary was simply a part of the job (the latter contemplated by Article 4.2 of the July PDF) and that locking doors after cleaning the rooms was a part of the cleaning function. As noted, she acknowledged that the changing of light bulbs was a maintenance function but noted that it was only in a PDF for the period from May, 1994 to July, 1994 when a new PDF was drafted. Similarly, she considered the "maintenance" done on the cleaning equipment, viz changing pads on the polisher and autoscrubber and the belts on the vacuums, to be a part of the operation of the equipment and not properly treated as the kind of work to be done by maintenance workers. It was her opinion that the repair of electrical chords (beyond taping with electrician's tape) was not a function that should have been done by the caretakers, that when the chord reaches the condition where it cannot be fixed in that way, it should be sent out to be repaired or else replaced entirely. She did acknowledge, 14 however, that replacement of the plug does occur; that the Lead Hand has a tool kit that permits such repairs to be done; and that the grievor had never been told not to do it. In my opinion the grievance should be dismissed. The claim in respect of the operations performed on the cleaning equipment, changing pads, belts, adjusting the squeegee is answered by the specific inclusion in both the May and the July PDF of "routine maintenance on cleaning equipment" among the basic cleaning duties of the incumbent in the position. It is simply an integral and necessary part of the job of cleaning that one must attend to the condition of the equipment that is being used to clean. I do not consider this work to fall within the meaning of the Caretaker B typical duty of "maintaining maintenance equipment in good working order". Subject to what is said below in respect of the repair of electrical chords, work done by the grievor does not involve any maintenance of equipment that is malfunctioning in any sense and that requires restoration to "good working order" Rather the equipment is in good "working" order; it simply requires replacement or adjustment of that part of it which, through cleaning, becomes inoperable. In this regard I see little difference between this function and cleaning the end of a broom or routine washing of a dusting cloth. Neither can, in any meaningful sense, be said to involve "maintenance". 15 I turn to the claim in respect of the repair/maintenance of or to the building - duties which the union claims fall under the Caretaker B duty of "performs minor repairs to buildings" Some of these are clearly without merit. Removal of the heating and air conditioning panels in order to clean them must surely be characterized as "cleaning" activities. The other duties relied on by the grievor are, however, of a different character. Replacement of light bulbs, resetting circuit breakers, removing broken glass and inserting cardboard in the "window", and shutting off the water valve in the event of flood are all duties which have no immediate relation to cleaning. Rather, they are duties related to "repair" or maintenance of the physical environment in which the cleaning is done. The College submits that these functions are to be characterized as "maintenance" functions to be performed by general maintenance workers. While it is true that the classification guide charts do include among the typical duties of a General Maintenance Worker that of "undertakes minor repairs to equipment", it is also the case that such duties are also "typical" of the Caretaker B. Thus, merely describing the duties as "maintenance" duties is of no assistance since such duties can be performed both General Maintenance Workers and the Caretaker B. It is thus, necessary to determine whether or not the performance of these functions is sufficient to raise the 16 classification of the grievor to that of Caretaker B. The College argues that it should not since it cannot be said that these duties occupy the "predominant or central duties of the position" within the meaning of the Classification Manual. It is clear that, as a matter of fact, these duties are not in any sense the predominant duties. The only function that was performed with any degree of frequency or regularity was resetting circuit breakers which could occur 2 or 3 times a week. Replacement of light bulbs was required once or twice a month, shutting off the water valve "every couple of months" and replacement of glass once a year. The union submits that, notwithstanding the relative infrequency with which these duties are performed, if they are required at all and if they are referred to in the classification guide charts for the Caretaker B, that should be sufficient to warrant classification at that level. I am unable to accept the Union's submission on this matter. While section II(3) of the Manual which refers to the principle of "core theory" and to the "predominant duties" of the position, (and on which the College relies) is of some assistance, it is not directly applicable to this situation. It is concerned essentially with defining what is the appropriate Job Family which is not in issue here. However, it is clear in the instructions for the preparation of the PDF s that it is the "significant" duties and responsibilities of the position that 17 are to be recorded. Moreover, the percentage of time on each of these duties is to be estimated. I consider that to reflect what surely is reasonable in any classification system, that is, that it is the position as a whole that is to be classified and that the classification to be given a position should not be determined by a few insignificant duties that are infrequently performed. I find that reasoning to be particularly attractive where the duties in question can quite easily be considered as related to the principal duties of the position. Thus, the most frequently performed function, resetting circuit breakers, can easily be so regarded as that must be done in order to provide power to operate the cleaning equipment. Similar observations can be made with respect to shutting off the water valve to stop the flooding of an area. The replacement of bulbs cannot be seen as associated with the cleaning function. However, there is another consideration that is relevant to the determination of how this function should be characterized. The grievor appears to be one of the few caretakers who routinely performed a function which, according to Mr. McGee was a maintenance function mostly performed by the general maintenance workers. It was never included in his PDF until May of 1994 when Mr. McGee attempted to have it transferred 18 over to the caretakers - albeit only temporarily. The grievor himself stated that he did not consider that he had done a good job as a caretaker unless he had replaced all the bulbs that were burnt out. In the circumstances I consider the performance of this particular function to be irrelevant to the task before me. It is fundamental in job evaluation systems that it is the position and not the incumbent that is to be evaluated. Accordingly, it is necessary to disregard duties which are not a part of the assigned duties of the position but which have been voluntarily assumed by the incumbent - either because s/he is a conscientious employee or because s/he is attempting to "bootstrap" into a higher classification. I find sufficient support in the evidence for reaching the conclusion that this was a duty which the grievor conscientiously took upon himself to perform but which was never really a part of his assigned duties except for the period from May to July. Further, it is my task to take a "snapshot" of the position at the time of the grievance. Since I have found that this duty was not an assigned duty until May of 1994 it cannot be considered as one of the duties and responsibilities of the grievor in March of 1994 when the grievance was filed. Similar observations can be made with respect to the claim that the grievor "assists in basic security services" The 19 grievor himself stated that he had never been assigned those duties and simply considered them to be a part of his responsibilities. Moreover, while these were referred to in the May PDF, there is no indication that they were ever any part of a PDF at the time of the grievance. Finally, it would appear that the duty to "lock the door" after using a room is not one which would appear to attract any attention in terms of the classification system. Ail employees of the College, whether caretakers or others, are instructed to lock the doors after they use them. In that sense they are all involved in ensuring some security. It is not reasonable to build a claim for a higher classification based on the performance of a duty that is performed by everyone. I turn finally to the matter of repair and replacement of electrical chords. This work is not like that of replacing a buffer pad or adjusting a squeegee, each of which is done in connection with the normal operation of the machine. Rather, there is a sense in which it can be said that such repair restores the equipment to good "working order" or involve some "minor repair to equipment" as contemplated in the typical duties referred to in the guide charts for the Caretaker B position. It bears some similarity to duties like resetting circuit breakers or turning off a water valve insofar as the activity of cleaning cannot continue unless the chord is repaired. However, it is also different in that it involves somewhat more than the simple 20 act of flipping a switch or turning a tap - each of which are unskilled activities. It requires some knowledge of how to safely re-attach a plug to an electrical chord. I am therefore persuaded that this particular duty is one which clearly falls under the Caretaker B category. However, since it is only performed, on the grievor's estimation, every two months or 6 times a year I cannot consider it sufficient to raise the grievor to the classification of Caretaker B. Having said this I would observe that I do not consider it proper that the College should assign (or permit the assignment) of this duty to people in the grievor's classification. By equipping the lead hand with a tool kit for this purpose it would appear that the College wishes to have this duty performed by the caretakers. In that regard its conduct is not consistent with the position it maintained at arbitration, viz, that this is a function that belongs to the general maintenance worker and should not be done by the caretaker. If that is the case it is, in my opinion, incumbent on the College to ensure that this work is assigned to the general maintenance worker. This is not a situation like the circuit breaker tripping or the floor flooding where common sense dictates that the matter be attended to by the caretakers on duty without the necessity of calling in a maintenance worker, at 21 premium rates, simply to turn off a tap or flip a circuit breaker switch. The condition of the electrical chords is something that can be regularly monitored and, as and when repairs are necessary, such work can be assigned to maintenance workers to do. It is simply not right to expect this work to be done by the caretakers, largely because it is convenient to have them to it on the spot, without recognizing that work in the form of higher payment. However, for the reasons given, I am unable to find that, on the basis of this duty alone, the grievor is entitled to relief which, in effect, would permit him to jump from payband 2 to payband 4. That would compensate him at a level far in excess of what would be appropriate given the frequency with which he performs the function. Consequently, for the reasons given, the grievance is dismissed. Dated at LONDON, Ont. this day of , 1995 G. J. Brandt, Sole Arbitrator