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HomeMy WebLinkAboutJardine 01-02-26IN THE MATTER OF AN ARBITRATION BETWEEN: ST. LAWRENCE COLLEGE ("the employer") and ONTARIO PUBLIC SERVICE EMPLOYEES UNION ("the union") AND IN THE MATTER OF A CLASSIFICATION GRIEVANCE OF MR. PETER JARDINE (OPSEU # 00D290) ARBITRATOR: lan Springate APPEARANCES: For the Employer: Cindy Bleakney Margaret Smith For the Union: Julie Lott Peter Jardine HEARING: In Kingston on December 6, 2000 AWARD INTRODUCTION The grievor is classified as a Technician A at payband 5. By way of a grievance dated January 31, 1998 he claimed that he should be classified as a Technician Atypical at payband 6. The union's core point rating of the grievor's position would place him at payband 7. The parties agree on the contents of a Position Description Form ("PDF") respecting the grievor's position. The evidence establishes that the grievor is a very conscientious and hard working employee. The applicable job evaluation manual, however, indicates that the job evaluation process is concerned with rating the duties associated with a position and not how well an individual performs those duties. THE FACTORS IN DISPUTE Both parties filed an arbitration data sheet. The sheets differ with respect to the union's ratings for the factors of complexity and sensory demand. The sheet filed by the employer indicates that both the union and the employer rate the two factors at level 2. The sheet filed by the union, however, indicates that the union rates both factors at level 3. At the commencement of the hearing Ms. Bleakney on behalf of the employer contended that I should not address the factors of complexity and sensory demand. In support of this position she relied on a March 30, 2000 memo from the union to the employer. The memo took issue with four core point ratings that the employer had assigned the grievor's position but did not discuss the ratings for complexity or sensory demand. At the hearing Ms. Lott on behalf of the union contended that the memo had addressed only those core point ratings that the parties had previously discussed. I reserved on the employer's objection to any consideration of the factors of complexity and sensory demand and indicated that I would hear evidence with respect to the appropriate ratings for both factors. The parties' written briefs and oral submissions reveal that over a lengthy period of time they engaged in extensive discussions respecting the proper classification of the griever's position. During this process the employer changed its approach to rating the position and later raised one of the core point ratings that it had given. The employer was aware that the union had rated the factors of complexity and sensory demand at level 3 well prior to the hearing. It did not contend that it was prejudiced in terms of its ability to address these factors. Given these considerations I am satisfied that the union is entitled to rely on the ratings for the two factors that are set out in its arbitration data sheet. In addition to the factors of complexity and sensory demand the parties disagree on the appropriate ratings for the factors of independent action, communications/contacts and work environment. Each of these five factors is addressed separately below. THE CLAIM THAT THE GRIEVOR WAS PERFORMING TASKS BEYOND WHAT WAS EXPECTED OF HIM The griever works in the employer's School of Health Sciences. Ms. Margaret Smith is the Director of the school. She testified that she is responsible for academic planning and delivery, including budget matters, staff assignments and curriculum integrity. Ms. Smith described her position as being comparable to a dean at other colleges. A number of Technologists are employed within the School of Health Sciences. Ms. Smith testified that each of these technologists is assigned lead responsibility for a course or group of courses and they dialogue with the faculty about labs. The griever was hired to take over what Ms. Bleakney described as ~lewer level" duties that had previously been performed by the technologists so they could focus on ~higher level" duties. Ms Smith is the griever's direct supervisor. Her actual contact with him, however, is minimal. His contacts are more with faculty members and technologists. During the hearing Ms. Smith expressed surprise at certain of the tasks that the griever referred to in his evidence. These were drawing blood samples from other staff members for use in a lab, correcting problems with certain equipment and assisting students in a computer lab. Ms. Smith contended that these duties went beyond what was expected of the grievor. She implied that these functions should not be considered when assessing his position. The grievor's evidence indicated that he drew blood at the request of faculty members. He said that a professor might ask for blood from a female or blood taken within the past five hours or blood that had not clotted. He said that at times blood was taken from him for this purpose. The grievor indicated that his work with equipment problems and assisting students arose out of his role in setting up and running certain pieces of equipment and from students asking him for assistance. Although Ms. Smith was not aware of all of the tasks the grievor had been performing this does not detract from the fact that the functions in question had become part of his job. There is no suggestion that he furtively or in a calculating manner took on duties in an attempt to enhance his position. Presumably the technologists were aware of the tasks he was performing. As noted above his taking of blood was in response to requests by faculty members. In light of these considerations I propose to take into account these tasks when assessing the grievor's position. THE GRIEVOR'S DUTIES The PDF states that the grievor under the direction of a technologist assists with routine minor chemical, biological and microbiological preparations. The PDF indicates the grievor spends about 20% of his time on this task. The grievor testified that twice a week he does a microbiology preparation that involves racking test tubes and later filling them with media using a pump. He said that for the histology area he uses alcohol concentrations and formaldehyde to "make chemistry" for use with a histology processor. He said that he makes stains designed to stain part of a tissue. He indicated that he makes reagents using alcohol concentrations and also disinfectants using concentrated disinfectants and distilled water. He said that he dispenses liquid nitrogen used to keep cells alive. The PDF states that the grievor spends approximately 10% of his time ensuring that sufficient routine laboratory supplies such as disinfectants, bleaches and disposables are on hand and maintaining appropriate inventory control of these supplies. The griever's evidence indicated that through regular inventory checks and keeping detailed records he ensures that the laboratories are always stocked with supplies. Approximately 10% of the grievor's time is spent doing cleanup and maintenance efthe general prep area. Another 10% is spent in washing and storing glassware and pipettes. The griever testified that pipettes are used for measuring and are often contaminated after being used. He said that at times pipettes are used to hold blood and he must be careful with them, especially when he has an open cut. About 15% of the grievor's time is spent washing lab coats and veterinary supplies. He has a laundry area for this purpose. The griever testified that each lab gets clean lab coats once a week and he washes about 800 coats per week. He said that lab coats from pathology can have blood up to the sleeve. In connection with its "vet tech" program the School of Health Sciences operates a surgery where small animals are spayed and neutered for the local humane society. Students do the pre and post operative care of the animals and assist with the surgery. Ms. Smith described the surgery as primarily bloodless although with some resulting bloodstains. The griever's evidence indicated that on occasion he is called upon to wash prep sheets covered with large amounts of blood. Animals in for surgery are wrapped in fleece-like kennel wraps which gather feces, urine and vomit. Students are expected to rinse out the wraps before putting them in a laundry collection container. The griever testified that this rinsing does not get rid of all of the material stuck on the kennel wraps and sometimes the wraps are not rinsed. About 20% of the grievor's time is taken up in transporting and disposing laboratory biehazardeus garbage. Ms. Smith testified that the griever collects closed containers that he moves to an autoclave room for placement in an autoclave. The griever testified that he usually does not autoclave the smaller containers. He said that he takes biohazard bags out of these containers unless it looks like an item has poked through the bag in which case he does decontaminate the container. The grievor described the autoclave as being like a big pressure cooker. He explained that it acts as a sterilizer. He said that he takes containers to the autoclave room, removes their lids and places the containers in the autoclave. He said that he autoclaves 8 to 15 loads of biohazards per day. The griever testified that the autoclaving process causes needle containers to soften and once over the preceding year this resulted in him being poked by a needle. Presumably by this point the needle had been decontaminated. The grievor is responsible for collecting material from the receiving area of the college including animal cadavers. He also transports the animal cadavers between a freezer and a pathology lab. He said that after they have been dissected cadavers are placed in a regular garbage bag that nine times out of ten will break. The grievor testified that he is involved in shut down procedures designed to ensure that items are locked away and security cameras are in place. Ms. Smith testified that this is a standard procedure that all staff participate in. The grievor testified that he is involved in a heamotology lab related to the operation of a rubber arm that students use to practice drawing blood. As noted above, the griever at times gives and collects blood from others. The griever indicated that he takes blood from other individuals about twice a week. The grievor testified that he is often asked to set up a video microscope that allows slides to be viewed on a VCR screen. He indicated that he also sets up a machine that analyzes the components of blood and is often asked to ensure that this equipment is operating within required parameters. The griever indicated that a student might ask him for assistance with a piece of equipment such as a microscope that is not working properly. He said that he does not open up any of the equipment. The grievor made a number of references in his evidence to being in labs with blood and various media. He said that students take blood from each other. He also said that from the receiving area he gets unscreened blood and urine sent from hospitals. Ms. Smith testified that faculty members and technologists work directly with samples but the griever does not. She said that as part of the admissions process students go through a health screening and are required to be immunized against hepatitis B and that those going into the veterinary program must also be immunized against rabies. Ms. Smith did not, however, dispute the griever's contention that students are not screened for AIDS. COMPLEXITY This factor measures the amount and nature of analysis, problem- solving and reasoning required to perform job-related duties. The job evaluation manual states that this factor measures the conceptual demands of the job as characterized by the analysis and interpretation required for problem and solution definition, creativity, mental challenge, degree efjeb structure, planning activities and the variety and difficulty of tasks. The employer rated the griever's position at level 2 which is worth 25 points. The union contends that a level 3 rating worth 41 points is more appropriate. The level definitions and illustrative classifications contained in the job evaluation manual for this factor read as follows: 2. Job duties require the performance of specific tasks involving related steps, processes and/or methods. Clerk General B; Driver; Reproduction Equipment Operator A; Typist/Stenographer A, B, C 3. Job duties require the performance of various routine, complex tasks involving different and unrelated processes and methods. Clerk General C; General Maintenance Worker; Secretary A The PDF contains the following statement with respect to the factor of complexity: Assigned tasks are carried out using routine laboratory procedures and equipment, i.e. making histology reagents; using a balance and proper glassware; making program labels; and labeling the finished product with a WHMIS compliant pre- generated label. Ms. Lott on behalf of the union noted that the grievor is expected to assist in a number of different areas. She contended that making a histology reagent, autoclaving, dispensing media for microbiology and running controls on an automated blood analyzer have completely unrelated processes and methods. The griever performs a range of tasks that are different one from the other. The job evaluation manual, however, lists a number of typical duties for the various illustrative classifications for a level 2 rating. For example, the typical duties of a Clerk General B include responding to routine inquiries, processing standard information forms, maintaining records and summaries, performing receptionist duties, ordering stationery and operating a cash register. This indicates that the fact of performing different tasks is not by itself sufficient to qualify for a level 3 rating. The main difference between the criteria for a level 2 and level 3 rating appears to be that level 3 encompasses complex tasks whereas level 2 is appropriate for more straightforward tasks. The evidence establishes that the griever performs tasks associated with his position carefully, accurately and in a timely manner. None of the tasks, however, can reasonably be described as complex. In the circumstances I confirm the level 2 rating assigned by the employer. SENSORY DEMAND This factor measures demand on mental energy while performing tasks. Consideration is given to the level or degree of concentration and the frequency of the requirement for careful attention to detail and accuracy. The employer rated this factor at level 2, which is worth 16 points. The union argues for level 3 rating which is worth 28 points. The definitions for these levels as well as the associated illustrative classifications are as follows: 2. Job duties require moderate visual, auditory, or sensory demand on mental energy and occasional careful attention to detail and accuracy. OR Job duties require considerable visual, auditory, or sensory demand on mental energy and periodic careful attention to detail and accuracy. Clerk General A; Food Service Worker A, B, C; Stationary Engineer A, B, C 3. Job duties require moderate visual, auditory, or sensory demand on mental energy and frequent careful attention to detail and accuracy. OR Job duties require considerable visual, auditory, or sensory demand on mental energy and occasional careful attention to detail and accuracy. OR Jobs require extensive visual, auditory, or sensory demand on mental energy and periodic careful attention to detail and accuracy. Clerk General C; Early Childhood Education Worker; Nurse; Secretary A, B, C; Skilled Trades Worker; Support Services Officer A, B, C, D; Technologist A, B, C The PDF contains the following entry with respect to this factor: Attention to detail is required with visual and sensory demands, i.e. lab preps, word-processing, etc. Task % of Time Lab prep 30 % Word processing 5 % 10 The grievor testified that he needs to pay attention to detail when sticking a needle into a person to draw blood, which he does about twice a week. He said he also must pay attention when once a week he calibrates a pump as part of microbiology prep. The grievor must also pay attention when measuring quantities in connection with preparations. He commented that it takes fine motor skills to measure a cylinder of acid. The grievor testified that when he walks into a lab he must keep a close eye on what he picks up. He gave the example of a beaker containing a liquid that did not have a top. He said before he handles such a beaker he will put on gloves. Ms. Lott in her submissions contended that the grievor's job is not similar to a food service worker, which is an illustrative classification for level 2. She argued that it is similar to a nurse and the other illustrative classifications for level 3 that require fine motor skills. Ms. Bleakney on behalf of the employer argued in favour of a level 2 rating contending that the grievor is not required to focus on or manipulate small objects. The PDF indicates that there are visual and sensory demands on the grievor for 35% of the time. It does not, however, indicate the level or degree of concentration required. It would presumably be somewhat less than what is required by Technologists A, B or C who typically conduct experiments and who are illustrative classifications for a level 3 rating. The grievor does at times have to pay careful attention to detail and accuracy. This, however, appears to occur on a relatively infrequent basis. Given these considerations I conclude that the grievor's job duties require moderate visual and sensory demand on mental energy and occasional careful attention to detail and accuracy. This meets the definition for a level 2 rating. INDEPENDENT ACTION This factor measures the independence of action and decisions required by a job. The job evaluation manual notes that controls can be in the form of supervision, policies, procedures or established practices. The employer contends that a level 2 worth 19 points is appropriate for this factor. The union seeks a level 3 rating worth 33 points. The relevant level definitions and illustrative classifications are as follows: 11 2. Job duties are performed in accordance with established practices under regular supervision, with the Supervisor monitoring progress. There is limited freedom to act independently. Clerk General B; Security Guard; Technician A 3. Job duties are performed in accordance with general procedures and past practices under periodic supervision, with occasional periods of Supervisor input or verification. There is moderate freedom to act independently. Clerk General C, D; General Maintenance Worker; Microcomputer Operator B; Secretary A, B The PDF contains the following entries with respect to this factor. Duties are performed in accordance with general procedures and instructions from technologists. Some independent decision-making is required i.e. scheduling laundry and garbage removal. Routine tasks performed according to established procedures. Work is observed daily, by technologists/faculty with feedback provided to the Director on an ongoing basis. The incumbent has own job duties and organizes work schedule according to the needs of the science programs. (Typical situations or problems that are normally referred to the Supervisor for solution are) interpersonal issues with staff and students. Clarification of priorities when technologists give conflicting directions. 12 With respect to the final entry above the griever testified that he could not think of any issues he had raised with Ms. Smith other than sending her e-mails respecting his holidays. He said that if any interpersonal issues should arise he would raise them with Ms. Smith. The grievor testified that he schedules his day based on such considerations as not going into a lab to remove biohazards when someone is in the lab lecturing. He said that he receives minimal directions from the technologists. He gave the example of Ms. Lett advising him that she needed certain gloves. He said that he has a white board on which technologists can leave messages for him. The griever testified that he does not take directions from academics but rather interacts with them to exchange information. Ms. Smith testified that she does not directly supervise the grievor's work. She said that his work is monitored by faculty members and technologists and should the need arise she will receive feedback from them. Ms. Smith testified that many faculty members prepare written forms after a lab and if they note a problem with the griever's role, such as not enough gloves or the proper equipment not being available, this would be made known to her. She said that for preparation work the griever follows specific instructions or recipes provided by the technologists. Ms. Lott in her submissions acknowledged that technologists give direction to the griever. She noted, however, that technologists are not management. She described the griever as working with but not for academic employees. She argued that the griever is not monitored by his supervisor. In rating this factor I believe it noteworthy that the level definitions use the term "supervision" as well as the term "Supervisor". The griever follows established practices under the immediate supervision and direction of technologists and faculty members while "the Supervisor", Ms. Smith, monitors his progress by way of feedback from faculty and the technologists. He has limited freedom to act independently, in large measure due to the nature of his work. This situation comes within the definition for a level 2 rating. 13 COMMUNICATIONS/CONTACT S This factor measures the requirement for effective communication for the purpose of providing advice, explanation, influencing others, and/or reaching agreement. The employer rated this factor at level 1 worth 16 points. The union contends that the appropriate rating is level 2 worth 52 points. The definitions for these levels and the related illustrative classifications are as follows: 1. Job duties require communication of a routine nature for the purpose of furnishing, exchanging, or discussing factual data or information. Personal courtesy and normal working/social relationships are required. Caretaker A, B; Clerk Supply A, B; Driver; Food Service Worker A,B,C 2. Job duties require communication for the purpose of providing detailed explanations, clarification, and interpretation of data or information. There may be need to empathize with and understand the needs of others in order to handle problems or complaints. Occasional involvement with confidential information which has moderate disclosure implications. Clerk General B, C; Programmer A, B; Secretary A, B; Skilled Trades Worker The PDF contains the following description of the purpose of the grievor's contacts with others: Nature of Contact Purpose Director Share info; seeking direction Students To exchange general information Shipping/Receiving Receive goods and transport to appropriate site Technologists Verbal directions 14 Faculty Receive clarification of directions Other Support Staff To exchange information The griever testified that he interacts with students. He gave the example of being approached by two students who asked if they could take blood from him. This exchange did not meet the requirement for a level 2 rating. It was not for the purpose of providing detailed explanations, clarification and interpretation of data and information. The griever also gave the example of walking into a computer lab and a student indicating that he or she could not find a file after having performed an illegal operation and him telling the student to access the back up. This type of contact can be viewed as providing detailed explanations. The evidence as a whole, however, including the PDF, suggests that this type of situation occurs infrequently and does not form part of the griever's regular on-going functions. In her submissions Ms. Lott relied on the fact that in October 1998 the employer guide charted the griever's position and in so doing assigned a level 2 rating for communications/contacts. Underlying the union's approach to this case is its contention that the griever's position is an atypical one that should be core point rated. The employer's move from guide chart rating to core point rating the griever's position led it to assign higher ratings for the factors of training/technical skills, physical demand and work environment than those associated with a typical Technician A. It also assigned a lower rating for the factor of communications/contacts. I do not regard the assignment of higher and lower ratings as an inappropriate result of the employer changing its general approach to rating the position provided the core point ratings are in fact accurate. The grievor's regular job duties comfortably meet the definition for a level 1 rating. They require communication of a routine nature for the purpose of furnishing, exchanging or discussing factual data or information. Accordingly, I find a level 1 rating to be appropriate. WORK ENVIRONMENT This factor measures working conditions in terms of the physical environment while doing the work. Consideration is given to the probability 15 or likelihood of exposure to disagreeable elements, the nature of the disagreeable element, length of exposure while on the job, and travel. The employer rated this factor and level 3 worth 55 points. The union argues for a level 4 rating worth 77 points. The relevant factor definitions and illustrative classifications are as follows: 3 Job duties are carried out with continuous exposure to slightly disagreeable and/or hazardous elements OR recurring exposure to moderately disagreeable and/or hazardous elements OR occasional exposure to extremely disagreeable and/or hazardous elements OR there is a requirement for moderate travel (31% - 60%). Caretaker A, B; Clerk Supply A, B, C; Food Service Worker A, B, C; Nurse 4 Job duties are carried out with continuous exposure to moderately disagreeable and/or hazardous elements OR recurring exposure to extremely disagreeable and/or hazardous elements OR there is a requirement for extensive travel (over 61%). Driver; General Maintenance Worker; Stationery Engineer A, B, C The PDF contains the following entries with respect to this factor: Exposure to disagreeable and/or hazardous elements, both chemical and biological. Exposure to these varies depending on whether the incumbent is in the animal care areas, other laboratory areas or the office environment. 16 Environment % of Time Biohazard 65% Chemicals 30% Animal handling: disagreeable elements (odours/specimens/ carcasses) 50% to 80% Ms. Lott on behalf of the union contended that the grievor's job is more dangerous than that of the technologists since he deals with the end products of the microbiology process and encounters hazards when cleaning the labs. She described blood on the bench as a constant hazard. Ms. Lott contended that the biggest danger to the grievor comes from unscreened blood taken from students due to the fear of AIDS. Ms. Bleakney on behalf of the employer contended that the grievor's exposure to biohazards is not significant, the risk of exposure to hepatitis B and rabies is removed by immunization and the chance of him making contact with a live virus from dried blood is minimal. In her written brief Ms. Bleakney indicated that the employer views the grievor as carrying out his job duties with continuous exposure to slightly disagreeable and/or hazardous elements. The grievor is regularly exposed to disagreeable and/or hazardous elements when handling chemicals, cleaning lab areas, washing glassware including pipettes after their use, moving biohazardous waste and animal carcasses, washing lab coats including some with blood on them and washing animal wraps with blood and urine. The proper performance of his duties reduces the extent of the hazards but does not eliminate them. In my view the grievor's position can accurately be described as involving continuous exposure to moderately disagreeable and/or hazardous elements. This meets one of the definitions for a level 4 rating. Accordingly, I agree with the union's contention that a level 4 rating is appropriate for this factor. CONCLUSION 17 The employer's rating of the grievor's position resulted in it receiving a total of 358 points. A level 4 rating for the work environment factor raises this by 22 points to 380. This is still within the 331 to 390 point range for payband 5. Accordingly, the grievor's claim to be paid at a higher payband does not succeed. Dated this 26th day of February 2001. Arbitrator