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HomeMy WebLinkAboutSinclair 97-10-14 IN THE MATTER OF AN ARBITRATION BETWEEN LOYALIST COLLEGE (the College) ONTARIO PUBLIC SERVICE EMPLOYEES UNION (the Union) GRIEVANCE OF TERRY SINCLAIR (the grievor) BOARD OF ARBITRATION Arthur Kruger - chair Robert Gallivan - member Michael Lyons- member APPEARANCES For the College - Michael J. Kennedy, Counsel - Dave Butler - Kathryn McCulloch - Elizabeth McGregor For the Union - Margaret Keys, Counsel - Gord Wright - Terry Sinclair - Jim Stethem HEARING AT BELLEVILLE, ONTARIO, SEPTEMBER 11, 1997 -2- The grievance arises from a layoff of the grievor, Mr. Terry Sinclair, on March 7, 1996. At the time of the layoff, Mr. Sinclair was employed as a Technician C, Payband 9. There were no positions in his classification or payband into which he could bump. The seniority list indicated that the most suitable bump for him would be into the position held then by Jim Stethem which appeared on the seniority list as an Atypical Caretaker in Payband 5. When Mr. Sinclair was offered this position, he learned that it was to be as a Caretaker B, Payband 4. He then filed the grievance which is the subject of this arbitration. It is the grievor's contention that the position he took after the layoff was a Payband 5 position and that he should be paid in this payband retroactive to the time he started work at this job. The College's position is that the job held by Mr. Stethem was a Payband 4 position and that he received a payband 5 rate only because he was red circled in that position. The College contends that the grievor is entitled to Mr. Stethem's position but not to his red circled rate of pay. Much of the evidence before the Board related to the history of Mr. Stethem's tenure in the position prior to his being bumped by Mr. Sinclair. We will now summarize that evidence. Mr. Stethem began his employment at the College as a full-time employee on June 8, 1986. When he worked nights, he was a Caretaker B, Payband 5. He then moved to the day shift as a Caretaker C, Payband 3. On January 5, 1995, he requested a core point rating of his position as he was entitled to do under Article 7.2.3 of the agreement. On January 12, 1995, he learned that the evaluation sheet disclosed that he should have been paid in Payband 4 and his pay was adjusted accordingly. On January 17, 1995, Mr. Stethem signed a statement commenting on the core evaluation of the Caretaker B position held by himself and Mr. Mark Ruckstuhl (Exhibit 7). The most recent evaluation had been done in March 1994 and had concluded that this was a Payband 4 position. Their statement claimed that various facets of their job had been rated too low and that a proper evaluation would raise the point score of the j ob from 294 points to 359 points, raising it to a -3- Payband 5 position. At the time, Mr Stethem was receiving a Payband 5 rate but was red circled while Mr. Ruckstuhl was paid in Payband 4. The red circled rate resulted from a decision under pay equity to raise his rate to Payband 5 but the point score assigned to the position put it in Payband 4. The statement concluded with a request that "the red circle should be removed from Jim Stethem and Mark Ruckstuhl should be raised to a Payband 5." On July 11, 1995, Mr. Stethem grieved claiming that his job in Payband 4 was improperly rated and should be assigned a point score of 409 bringing it to Payband 6. From the evidence we received it is unclear as to what happened to this grievance (Exhibit 8). As we have already noted, on March 6, 1996 Mr. Sinclair bumped into the position held by Mr. Stethem and Mr Stethem bumped Mr. Ruckstuhl, who was junior in seniority to Mr. Stethem. There is no dispute that Mr. Sinclair is employed in the same job Mr. Stethem had held prior to March 6, 1996. The disagreement is over whether this position is a payband 5 position or a payband 4 position. The collective agreement in Article 3, Management Functions, gives the College the exclusive function to classify employees, subject to the right of employees to grieve their classification. Article 4.1 requires the College to prepare a seniority list once every four months. A copy of the list is to be sent to the Union. Copies are to be posted at each campus and employees are entitled to inspect the list on request. Article 15 deals with the Layoff/Recall Process. Article 15.3 provides for a joint Union committee to meet to discuss ways of accommodating employees facing layoffs and to make recommendations to the President of the College. The Union submitted to the Board copies of the minutes taken by a union member, Ms. Linda Dutrisac, of a meeting of this joint committee on March 1, 1996. Among other matters discussed was the impending layoff of Mr. Sinclair. Ms. Dutrisac's minutes show that at this meeting, the -4- College indicated that Mr. Sinclair might be assigned to the position of Atypical Caretaker in Payband 5. Mr. Gord Wright, the President of the Local Union, told the Board he had attended the March 1, 1996 meeting. His recollection of the discussion concerning Mr. Sinclair corresponded with Ms. Dutrisac's minutes. We referred earlier to the seniority list consulted when Mr. Sinclair bumped into Mr. Stethem's position in March 1996. That list, dated 12/04/95 was filed with the Board as Exhibit 10. It shows Mr. Stethem under Payband "005" and under Job Identification as an "Atypical Caretaker". The Board received conflicting evidence from Mr. Wright and Ms. Elizabeth McGregor, Director of Human Resources, concerning the way in which the payband was assigned on the seniority sheet. Mr. Wright said he understood that the payband for any individual showed the rate for the position and not the red circled rate the incumbent was actually paid. Ms. McGregor's evidence on this matter was conflicting. In response to a question in examination-in-chief, she said that the payband shown for a position on the seniority sheet would not reflect red circling. In cross- examination, she said she believed that the payband shown on the seniority sheet reflected the rate for the j ob and not necessarily the rate the incumbent might be paid. However, in response to a question from the Chair of this Board after re-examination, Ms. McGregor stated that the payband shown on the seniority list reflected the rate of pay the incumbent received, which, in the case of a red circled employee, would be higher than the payband assigned to the position. We turn now to the argument of the parties. The Union' s Case The Union asked the Board to note that Mr. Stethem's job was initially classified in Payband 3 and then reclassified to Payband 4. As a result of Pay Equity, he was reclassified as a Caretaker Atypical, Payband 5. It is true that the job was then classified again as Caretaker B, Payband 4 but the College never, in fact, implemented this change. Mr. Stethem's salary remained in -5- Payband 5. The seniority list compiled by the College continued to show him as a Caretaker Atypical, Payband 5 at the time he was bumped by Mr. Sinclair. The Union's minutes of the meeting March 1, 1996 state that Mr. Butler, Vice President of Human Resources at the College, indicated the possibility of Mr. Sinclair bumping into an Atypical Caretaker's position in Payband 5. Mr. Butler was in attendance at this arbitration hearing and if he disagreed with the Union's minutes of the March 1 meeting, he could have given evidence to that effect. The College chose not to call him as a witness and the evidence based on Ms. Dutrisac's minutes should be accepted by the Board. The Union also alleged that Ms. McGregor's testimony was inconsistent. She probably told the truth in examination and cross-examination when she said that the seniority list reflected the payband for each position shown, and was not a reflection of red circling of rates for the incumbent. Although she gave a different response to a question from the Chair of this Board, that response is not credible. If the payband shown on the seniority list reflected red circled rates for job incumbents, it would seriously impede its usefulness. For example, Mr. Sinclair, in looking for a Payband 9 position to bump into, might ignore a position shown as Payband 10 because of red circling of the incumbent, when in fact this was a Payband 9 position. We have to assume that seniority lists show the correct payband for all positions, unaffected by red circling of any incumbents. If this is not the case, then the College would be in breach of Article 4.1 which must be read to mean that seniority lists are reliable and accurate. Finally the Union asked us to note that on the seniority list, Mr. Stethem has longer seniority than Mr. Ruckstuhl. If they were both in the Caretaker B Payband 4 position at the time Mr. Stethem was bumped, then Mr. Sinclair should have bumped Mr. Ruckstuhl and not Mr. Stethem. The fact that he bumped Mr. Stethem proves that the College considered Mr. Stethem to be a Caretaker Atypical, Payband 5 in March 1996. The change in his classification to a Payband 4 position had not been implemented and Mr. Sinclair who assumed that position should be paid in Payband 5. -6- The College's Case The College argues that in March 1996, Mr. Stethem's position was in Payband 4 even though he was red circled and paid in Payband 5. Both Mr. Stethem and the Union were fully aware of the situation. On January 5, 1995 Mr. Stethem requested a copy of his core point rating and he received it on January 12, 1995. It showed that his position then was Caretaker B, Payband 4 even though he was red circled and paid a Payband 5 rate. On January 17, 1995 Mr. Stethem wrote a memo (Exhibit 7) on behalf of Mr. Ruckstuhl and himself outlining their disagreement with the core point rating and requesting a reclassification to Payband to Payband 5. On February 1, 1995, Mr. Stethem appeared before the Classification Committee but was unable to persuade the Committee to move his classification above payband 4. On July 11, 1995, Mr. Stethem launched a grievance with the support of the Union (Exhibit 8) requesting a change in his rating to put him into Payband 6. The Board was not informed of the status of that grievance. It is established that the most recent evaluation of Messrs. Ruckstuhl and Stethem put them both in Payband 4, that Messrs. Ruckstuhl and Stethem performed very similar duties, and that Mr. Ruckstuhl was classified as Caretaker B Payband 4 on the Seniority List in March 1996. As for the Seniority List, the College asked the Board to accept Ms. McGregor's evidence that it showed the Payband salary received by the incumbent and not necessarily the Payband of the position. This would explain why Mr. Stethem was listed in Payband 5 while Mr. Ruckstuhl was shown in Payband 4 on the seniority list in use in March 1996 when the grievor bumped into Mr. Stethem' position. Mr. Stethem in his evidence agreed that in March 1996, he knew his job was in Payband 4 even though he was paid in Payband 5. The Union also was aware of it as recently as July 1995 when the Union supported Mr. Stethem's grievance (Exhibit 8). Article 15.4.8 clearly indicates that an employee "assigned to a position" as a result of bumping on layoff"shall receive the rate within the Payband for the new position ..... "It says "new position" and not the red circled rate of the incumbent of that position. Mr. Sinclair bumped into -7- a payband 4 position and has been paid appropriately at a payband 4 rate since Mach 1996. What the Union seeks to do here is to apply red circling to a position rather than to the incumbent of a position. Article 15.4.6 of the Collective Agreement and the October 21, 1992 letter, appended to the current collective agreement, clearly show this to be contrary to the intent of that agreement. The Award The Board finds that in March 1996, the Union and Mr Stethem knew that the position held by Mr. Stethem at the time was Caretaker B in Payband 4. They also knew that Mr. Stethem was red circled at a rate in Payband 5. This was clear from Exhibits 7 and 8, Mr. Stethem's unsuccessful efforts in 1995 to change the classification of his position from Payband 4 to Payband 5 or 6. The seniority list in effect at the time of the grievor's layoff did cause some confusion. We conclude that it led Mr. Butler at the March 1, 1996 meeting to believe that Mr. Sinclair would be bumping into a payband 5 position when he bumped Mr. Stethem. It led Mr. Sinclair to believe that he was in fact bumping into a Payband 5 position. It also resulted in the mistaken decision to bump Mr. Sinclair into Mr. Stethem's position rather than Mr. Ruckstuhl's position. While this had no adverse effect on Mr. Ruckstuhl who would have been bumped in any case, it did adversely impact on Mr. Stethem, who should not have been affected by Mr. Sinclair' s layoff and bumping. The College and the Union should look into the way in which red circled employees are listed on seniority lists. It would be more useful if these lists showed the payband level for the position and not the higher rate received by a red circled incumbent of that position. In spite of the ambiguity created by the seniority list in effect on March 6, 1996, we cannot conclude that Mr. Stethem's position change from Payband 5 to Payband 4 had not been implemented. Exhibit 1 le, the evaluation of Mr. Stethem's job in March 1994, establishes that the change had been implemented. Exhibits 7& 8, as noted earlier, show that Mr. Stethem and -8- the Union objected to the implementation of the change and were fully aware of it. Our conclusion is that while Mr. Sinclair was bumped in error into Mr. Stethem's position rather than Mr. Ruckstuhl's position, he was not adversely affected by this. He was properly put into a Payband 4 position and there is no basis for his complaint. Accordingly this grievance is dismissed. Dated at Toronto, Ontario this fourteenth day of October 1997. Arthur Kruger concur/dissent Robert Gallivan concur/dissent Michael Lyons