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HomeMy WebLinkAboutFord 02-12-11IN THE MATTER OF AN ARBITRATION BETWEEN: FANSHAWE COLLEGE ("the employer") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the union") AND IN THE MATTER OF A CLASSIFICATION GRIEVANCE OF B. FORD OPSEU FILE #98C 190 ARBITRATOR: Ian Springate APPEARANCES: For the College: Sheila Wilson, Human Resources Consultant For the Union: Ursula Rzeznik, Presemer HEARING: In London, Ontario on November 18, 2002 2 AWARD INTRODUCTION This matter relates to a classification grievance filed on January 26, 1998 by Ms. Barbara Ford, an employee in Registrar Services. In her grievance she contended that she should be reclassified from a Clerk Atypical at payband 7 to a Support Services Officer at payband 10. The grievance was referred to arbitration in accordance with an expedited procedure for classification grievances. At a hearing held on November 18, 2002 Ms. Ursula Rzeznik, the union spokesperson, asked that the grievance be referred to an arbitration board. Ms. Sheila Wilson, the employer's spokesperson, opposed this request. One of Ms. Wilson's arguments was that the issues raised by the January 1998 grievance had been dealt with in an arbitration award that related to a classification grievance filed by Ms. Ford on December 19, 2000. Prior to the hearing in this matter Ms. Ford served as the union spokesperson at expedited arbitration hearings into the classification grievances of other employees. Although not designated as the union's spokesperson, at the November 18, 2002 hearing she took the lead role in advocating for the union's position. THE FACTUAL BACKGROUND In 1994 the employer created what it described as a "generic" position description form ("PDF") for employees in Registrar Services. The employer anticipated that the use of a single PDF would allow it greater flexibility when making assignments, including allowing it to move staff between different duties. In 1996 the employer decided that although the generic job description model did provide certain operating efficiencies, it could not provide the required quality of service. There was then a major re-organization of the Registrar and Student Awards Services offices. According to the employer's written brief, as part of this reorganization the employer prepared new PDFs for some 36 positions. The brief stated that the PDFs were finalized in late 1997 and evaluated in February 1998. As noted above, on January 26, 1998 Ms. Ford filed a grievance in which she contended that she should be classified as a Support Services Officer at payband 10. That same day Ms. Lynda Groom, another employee in Registrar Services, filed a grievance in which she asked to be reclassified from a Clerk Atypical at payband 7 to an employee at payband 9. 3 On February 19, 1998 the then president of the union local sent a note to the employer stating that Ms. Ford's January 1998 grievance would be put on hold "pending the result of the job descriptions currently being done in Registrars". The employer's preparation and evaluation of new PDFs resulted in a number of employee positions, including those of Ms. Ford and Ms. Groom, being reclassified. By way of a memorandum dated March 25, 1998 the employer advised Ms. Ford that her position had been re-classified to a Clerk D at payband 8 retroactive to November 1, 1996. This raised her position one payband above what it had been when she filed her January 1998 grievance. The March 25, 1998 memorandum also advised Ms. Ford that the employer was denying her grievance. On May 4, 1998 Ms. Ford and Ms. Groom both submitted a new classification grievance alleging that they had been improperly classified with respect to their new PDFs. They asked to be reclassified at payband 10 and 9 respectively. On October 2, 1998 the union asked that both of these grievances be put on hold. Ms. Ford's January 26, 1998 grievance was originally scheduled to be heard by me on October 19, 1998 pursuant to the expedited arbitration process. The union forwarded a written brief to me on October 5, 1998. That same day I was advised that the parties had agreed to adjourn the hearing. In consultation with the parties the hearing was re- scheduled to May 19, 1999. On April 28, 1999, however, the parties agreed to adjourn the matter pending the outcome of Ms. Groom's January 26, 1998 grievance, which was scheduled to be heard by Arbitrator lan Hunter on May 3, 1999. The May 3, 1999 arbitration hearing into Ms. Groom's grievance was scheduled in accordance with the expedited arbitration procedure. Ms. Ford served as the union's spokesperson. At the hearing the parties disagreed about which PDF should be used for the arbitration. Ms. Ford argued that it should be the "generic" 1994 PDF. Ms. Wilson on behalf of the employer argued that it should be an April 28, 1998 PDF with respect to Ms. Groom's position. Arbitrator Hunter ruled orally that the April 28, 1998 PDF should be utilized. In a written decision dated May 5, 1999 he explained his reasons for doing so as follows: I held that the P.D.F. that should govern this proceeding is the one currently in effect (Exhibit 3, 28 April, 1998). I reached this conclusion for three (3) reasons: (1) To hold otherwise would be to freeze in stone the position of the . parties at the date of the grievance. In fact, every incentive should exist for parties to modify their respective positions during the 4 various grievance meetings, and to attempt to settle their differences in advance of arbitration. Exhibit 3, the 28 April, 1998 P.D,F., indicates that the College modified its position on several job factors, agreeing with the Union's position, and eliminating these factors as matters in dispute. (2) To use the 1994 P.D.F. would be to conduct an entirely artificial arbitration. As a result of the second step grievance meeting, the reorganization in the department, and the new P.D.F. (Exhibit 3) three (3)job factors that were formerly in dispute have now ceased to be in dispute. They are now agreed. To allow arbitration on factors which are now agreed, as though they were still matters in dispute, would be to engage in a farcically artificial process. I do not believe that it was the intent of O.P.S.E.U., nor of the Council of Regents, nor of the Joint Classification Committee, to create expedited arbitration in order to deal with non-existent issues. (3) Finally, I note that the P.D.F. in this case (Exhibit 3) was provided to the Grievor, and through her to the Union, more than a year before this hearing (i.e. in April, 1998). In such circumstances, I cannot see that any prejudice flows to the Union from the use of the revised P.D.F. (Exhibit 3). For reasons not related to the issue of which PDF should be utilized, Arbitrator Hunter concluded that Ms. Groom's grievance was not suitable for the expedited arbitration process. He held that the grievance should be referred to an arbitration board. At the hearing before me Ms. Ford indicated that she had wanted the union to commence a judicial review of Arbitrator Hunter's decision to use of the 1998 PDF but Ms. Groom had disagreed. Ms. Ford also contended that Ms. Groom "struck a deal" with the employer which resulted in her being reclassified to payband 9. Ms. Wilson disputed this contention. On December 19, 2000 Ms. Ford filed another grievance in which she again alleged that she was improperly classified and should be classified as a Support Services Officer at payband 10. That grievance came before Arbitrator Gail Brent by way of the expedited arbitration process on September 24, 2001. Arbitrator Brent issued her award on September 28, 2001. A review of that award and the union brief filed in these proceedings in October 1998 indicates that six job factors that were identified as being in dispute in 1998 were also in dispute before Arbitrator Brent. Three job factors that were in dispute in 1998 were not in contention at the hearing before Arbitrator Brent 5 although two other job factors that had not been in dispute in 1998 were in dispute before Arbitrator Brent. In her award Arbitrator Brent concluded that Ms. Ford's job was more accurately described by the Clerk General job family definition than by the Support Services Officer job family definition. She determined that the employer had not properly rated the factor of motor skills and awarded certain additional points for this factor. She held, however, that the employer had properly rated the other job factors. Despite being awarded additional points Ms. Ford's position remained in payband 8. Arbitrator Brent held that Ms. Ford's position was properly classified as a Clerk D at payband 8. THE PARTIES' POSITIONS RESPECTING THE STATUS OF THE 1998 GRIEVANCE At the hearing before me Ms. Ford said that she was not seeking to re-litigate the grievance heard by Arbitrator Brent. She contended that after she had filed her January 1998 grievance a number of duties and responsibilities were removed from her position. She argued that her 1998 grievance should be "frozen in time". She indicated that she wanted her position as it existed when she filed the 1998 grievance to be evaluated using the 1994 PDF. She suggested that should her January 1998 grievance be upheld and it is determined that as of that date she should have been paid at the payband 10 level, her salary since then should have been red circled at payband 10. Ms. Ford disputed a contention by Ms. Wilson that she should have sought to have her 1998 grievance heard earlier. She contended that the grievance had been scheduled to be heard on three different occasions but was then not heard. She also contended that she had put her grievance on hold pending the outcome of Ms. Groom's grievance relating to the generic PDF but that grievance never was heard. Ms. Wilson noted that the union had asked that Ms. Ford's 1998 grievance be put on hold and it subsequently forwarded her 2000 grievance to arbitration. She said that the employer understood that the outcome of the 2000 grievance would finalize the matter. She asked why, in term of a logical process, the union would refer Ms. Ford's third grievance to arbitration if it intended to refer the first grievance. Ms. Wilson also argued that Ms. Ford had lots of opportunities to bring her grievance forward but did not do so until after Arbitrator Brent's award. She contended that to now go back in time to address the January 1998 grievance would be inappropriate and an artificial process. Ms. Wilson contended that since 1996 Ms. Ford's functions have essentially remained the same and accordingly her case was disposed of at the arbitration before Arbitrator Brent. She submitted that I could look at Arbitrator Brent's award togelher 6 with the grievor's 1998 PDF, which Arbitrator Hunter indicated was the appropriate one to use, and conclude that Ms. Ford's position has been appropriately classified. In it's written brief filed in November 2002, more than four years after the union's brief, the employer set out its position as follows: In referencing Arbitrator Hunter's award (Appendix F) he states .... "every incentive should exist for parties to modify their respective positions during the various grievance meetings, and attempt to settle their differences in advance of arbitration". The parties have attempted to resolve this issue that include resolution discussion on November 1, 2002. At the Union's request, the 1998 issue was put on hold. During 2000, the position description was revised and evaluated as Clerk D, Payband 8. The grievor and the Union forwarded that 2000 issue to arbitration. The College understood the outcome of the 2000 grievance would finalize the matter. It is the College's position the grievance of May 1998, has already been disposed of, since the role has not changed significantly and the matter was dealt with at an arbitration hearing held in September 2001. THE REQUEST FOR AN ARBITRATION BOARD As noted above, Ms. Rzeznik on behalf of the union asked that Ms. Ford's January 1998 grievance be referred to an arbitration board. Ms. Ford advanced a number of arguments in support of this request. She submitted that an expedited hearing is supposed to be non-confrontational, non-legalistic and not involve a comparison of different positions. She said that with an arbitration board the union could call witnesses to testify about the work she had been performing and about what should have happened. She also said that evidence could be led about the three attempts to schedule her 1998 grievance. She indicated that at a hearing before an arbitration board the union would take issue with Arbitrator Hunter's decision about which PDF should be utilized. She also said that she wanted to be represented by a lawyer. Ms. Wilson opposed the union's request that I refer the grievance to an arbitration board. She argued that there was sufficient material before me to decide that the issue of Ms. Ford's classification has already been disposed of and that she is appropriately classified. She contended that I have the jurisdiction as well as the necessary evidence before me to make such a determination. ? THE EXPEDITED ARBITRATION PROCESS Article 18.4.3.6 of the collective agreement addresses how an expedited arbitration hearing is to be conducted. Article 18.4.4 indicates that an arbitrator may conclude that the expedited process is not appropriate for a particular grievance. These two provisions state as follows: 18.4.3.6 Hearing The parties agree that the process shall be informal and that legalistic processes normally used in conventional arbitration shall not be used. Up to three (3) Management representatives and three (3) Union representatives may attend the hearing. The parties will inform each other no less than five (5) days in advance who will attend. One (1) person from each side will be designated as spokesperson. The Arbitrator may ask questions of any of the Union or Management representatives present. The spokesperson for each party may give a summary statement normally not exceeding fifteen (15) minutes at the conclusion of the question period. While it is generally not the intent of the parties to use an outside legal counsel at an expedited arbitration hearing, the parties agree that where they intend to use such counsel at the hearing, they shall notify the other party at least ten (10) days before the date of the hearing. In addition a translator may be present if necessary. The side that requests the translator shall be responsible for the cost involved. By mutual written agreement five (5) days in advance each party may introduce an observer/observers to the meeting. 18.4.4 Classification Arbitration Board The Arbitrator appointed under Article 18.4.3.1 may decide that a particular grievance should be referred to an Arbitration Board on receipt of the documents referred to in Article 18.4.3.3 or in Article 18.4.3.4 or at the hearing. Either party may recommend such referral in its written submission to the Arbitrator. Article 18.4.3.6 states that an arbitrator may ask questions of any union or management representatives present at the hearing. In my experience questions relating to the facts of a case, as opposed to questions designed to clarify a party's position, are asked only of the grievor and the grievor's immediate manager. At Fanshawe, and at other colleges, the practice is for the arbitrator to do most of the questioning about the grievor's duties and responsibilities in terms of how they relate to the various job factors in dispute. Although Article 18.4.3.6 does not expressly prohibit the use of lawyers, legal counsel are seldom utilized. The system of having the arbitrator ask most of the questions usually works well. Although a grievor and his or her manager may use different terminology to characterize the grievor's duties and responsibilities, they generally agree on the specifics of what it is that the grievor does. Accordingly, issues of credibility seldom arise. If an issue of credibility does arise with respect to a matter that may affect the outcome of a case, the grievance is generally referred to an arbitration board so that the more traditional arbitration procedure can be utilized. THE DECISION As indicated above, the expedited arbitration system is generally not viewed as appropriate for cases where the credibility of witnesses is in issue. In my view it is also not appropriate for a case where evidence may be led about contentious matters that do not relate directly to how different job factors should be rated. It would not be fair to the parties, or to the arbitrator, for an arbitrator to be the person who questions witnesses about such matters. Further, pursuant to Article 18.4.3.6 of the collective agreement the spokespersons for the parties are limited to summary statements normally no longer than fifteen minutes. This is not sufficient time to make submissions on complex factual, policy or legal issues. The union contends that Ms. Ford's position as it existed on January 26, 1998 should now be evaluated. The employer objects to such an evaluation because of the delay involved and events in the interim, notably Arbitrator Brent's award relating to Ms. Ford's December 2000 grievance. There appears to be at least two branches to the employer's position. One is that from a review of the grievor's 1998 PDF and Arbitrator Brent's award I can conclude that Ms. Ford's January 1998 grievance has been desposed of. Before reaching such a decision, however, the parties should reasonably have an opportunity to make full argument on: (a) whether such a comparison is the correct approach and (b) if it is the right approach what conclusion(s) can appropriately be drawn from the comparison. The other branch of the employer's case is that in light of events since January 1998, including the forwarding of Ms. Ford's December 2000 grievance to arbitration, the January 1998 grievance should not be addressed at all. Logically both parties should be provided with an opportunity to fully address that issue, including the policy implications involved and, if appropriate, to lead evidence with respect to what happened and why. For the parties to properly address the issues in dispute requires that they be able to make arguments on complicated factual matters and policy considerations and perhaps lead evidence in support of their respective positions. The expedited arbitration process 9 is not suitable for such a hearing. Accordingly, I conclude that it is appropriate to refer Ms. Ford's January 26, 1998 grievance to an arbitration board. Dated this 1 lth day of December 2002.