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HomeMy WebLinkAboutMcCartney et al 00-00-00In the matter of an arbitration between SHERIDAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY (hereinafter referred to as the College) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 245 (hereinafter referred to as the Union) Classification Grievances: J. McCartney, L. Glavan, C. Franch, C. Beeney, M. Fitzpatrick Sole Arbitrator: Gregory J. Brandt Appearances: For the College: Erin Hell, Manager HR Client Services, Human Resources and others For the Union: Mary Anne Kuntz, Grievance Officer Jay Jackson, President, Local 245 Nerma Penningten-Drabble, Chief Steward, Local 245 Maureen Fitzpatrick, Griever Hearing: January 22, 2001 Sheridan College 2 PRELIMINARY RULING 1. Introduction The grievers are employed in the position of Cash Office Clerk and are currently classified as Clerk General D, Payband 8. They claim that they are improperly classified and that they should be reclassified as Clerk General Atypical, Payband 12. Three efthe grievers (Ms. Fitzpatrick, Ms. Glavan, and Ms. Perrene) work in the Finance Office at the Trafalgar Road Campus of the College at Oakville. The other two grievers (Ms. Beeney and Ms. McCarmey) work in the Finance Office at the Davis Campus of the College at Brampten. As the grievances could not be settled during the grievance procedure the parties agreed to refer all five grievances to arbitration. Accordingly, the matters were scheduled to be heard on January 22, 2001 by me, sitting as an Expedited Arbitrator. On January 8, 2001 Ms. Erin Hell, Manager, HR Client Services, Human Resources, wrote requesting me to refer the grievances to a full board of arbitration pursuant to Article 18.4.4. efthe collective agreement. By letter, dated January 9, 2001 Ms. Mary Anne Kuntz, a Grievance Officer for OPSEU, advised that the union opposed this request. In the circumstances I directed that the parties appear before me at the hearing scheduled for January 22, 2001 to argue the question ef whether the College's motion to have the grievances referred to a full board of arbitration should be granted. This preliminary ruling deals with that issue. 2. Facts It will be helpful to set out briefly the facts surrounding the processing of the grievance through the grievance procedure. On October 5, 1999 the grievers, acting in accordance with Articles 7.2.2. and 7.2.3. of the collective agreement, requested a copy of their Position Description Form 3 (PDF) and asked the College to indicate whether the position was to be guide charted or core point rated and, if it was to be core point rated, to provide the core point rating by factor. On October 15, 1999 Ms. Kerri Hastings, Human Resources Assistant, provided the grievors (with the exception of Ms. Perrone) with a copy of their PDF and a break down of the guide chart rating for the position of Cash Office Clerk, Clerk General D. (Ms. Perrone was provided with hers on October 28, 1999). That PDF was dated December 15, 1996 and signed by Ms. Kathy Fischer, Manager of Accounting Services and the grievors' immediate supervisor at the time. On October 26, 1999 Ms. Hastings again wrote to the grievors enclosing a "more current job description" that had been obtained from Ms. Fischer and asked them to sign it and return an original copy to her attention. That PDF was undated and unsigned and did not identify the incumbent(s) to whom it purported to apply. It differed from the December 15, 1996 PDF in a number of respects. On November 9, 1999 the grievances were filed. Sometime thereafter the grievors made a request under Article 18.4.2.1 that a copy of their "current PDF" be provided at least five days prior to the Step 1 Meeting. On November 25, 1999 the College responded. However, what it provided to the grievors was not the PDF that had been sent to them on October 26, 1999 but rather another copy of the December 1996 PDF (to which was added a section on Work Environment that had been omitted from the December 1996 PDF that was provided to the grievors on October 15th) At some point the grievors prepared a number of changes to their PDFs which were submitted to the College at the Step one meetings on their grievances. Those "draft" PDF s contained a number of additions to the PDF supplied by the College and also 4 differed somewhat as between the grievers working at the Oakville campus and at the Brampten campus. Separate Step One Meetings were held for each griever on various dates between November 29 and December 15, 1999. On January 12, 2000 the College provided its Step One response. In that response it indicated that, while it was prepared to adjust its rating for Motor Skills, that change would not be sufficient to move the grievers to a higher payband. Accordingly, the grievance was denied at Step 1. In addition the College attached a revised PDF (which was essentially the same as the one sent to the grievers on October 26, 1999) but which incorporated some changes responding to proposals that the grievers themselves had made to their PDF s. However, as those PDF s had not been signed by Ms. Fischer, the College followed up on this memo with another memo on January 24, 2000 enclosing a cover page for the PDF which was signed by Ms. Fisher on January 13, 2000. On January 24, 2000 Ms. Penningten-Drabble advised the College that the grievers wanted the matter referred to Step 2 of the Grievance Process. Step 2 meetings were held on March 22nd and 23rd and on April 3rd, 2000 Mr. Dan Sibley, Director of Human Resources, provided the grievers with the College's Step Two response. In his letter he noted that, following a review of the matter, the College was prepared to adjust its ratings in respect of the Physical Demand and Work Environment factors. However, in that these changes would not yield sufficient points to move the grievers to a new payband, the grievances were denied. On April 13, 2000 the Union referred the grievances to arbitration. 3. Argument 5 It is the position of the College that the expedited process provided for under Article 18 of the collective agreement generally contemplates a straightforward application of the established classification system to positions whose duties and responsibilities are not in substantial dispute. It is submitted that these grievances are not appropriate for resolution under the expedited process for a number of reasons: 1. The case is a complex one involving 5 different grievers and 9 factors in dispute. 2. The grievers work at different campus and their duties are somewhat different at these campuses. 3. There are substantial disagreements between the College and the Union with respect to the content of the PDF as well as internal differences between the PDFs provided to the College by those grievers from the Oakville campus and those from the Brampten campus. 4. These jobs are similar to those of another group of clerks whose grievances are currently before a full board of arbitration and it is necessary to hear evidence of what is involved in those jobs in order to understand the full "context" of the grievances - which evidence cannot be tendered under the restrictions imposed under the expedited process. The union acknowledges that there are differences between the College and the grievers with respect to the content of the PDF s. However, it is argued that these differences are largely matters of nuance and expression and that there is no significant dispute concerning the core functions of the jobs which cannot be comfortably addressed within the confines of the expedited process. Further, the union argues that it is simply not relevant, for present purposes, to consider the impact that the decision in these cases might have on the classification of other allegedly "similar" jobs both at this College and in the system as a whole. 6 3. Decision The issue to be resolved at this juncture is a relatively narrow one, viz, whether or not the issues raised in these grievances can be addressed within the procedural limits set down for expedited arbitration. This has arisen in a number of cases and it will be helpful at the outset to review those cases. In George Brown College (Venture) (January 12, 1989) the grievor, a Caretaker B, sought reclassification as a Caretaker C or Caretaker Atypical. A part of the union's case involved a claim that other caretakers employed by the College doing essentially the same work as the grievor were in the higher rated classifications as a result of a "grandfathering" arrangement that had been concluded earlier. However, as the spokespersons for the College at the hearing were not knowledgeable as to the facts and circumstances surrounding the decision to "grandfather" the positions, Arbitrator Knopf ruled that, in the circumstances, it was not possible for her to address this issue since it involved a "fuller and more detailed inquiry" than was permitted under the expedited process. In George Brown (Guile and Strangeis) (August 23, 1989) Arbitrator Hunter referred a case to a full board where the union, in its brief, indicated that it wanted to compare the positions of the grievors (who were at the Casa Loma campus of the College) with that of others employed at different campuses of the College. In so ruling Arbitrator Hunter referred to the decision of Arbitrator Knopf (supra) as well as to another case in which the present arbitrator ruled that the process of expedited arbitration could not accommodate a request to consider the PDFS of other employees for comparative purposes. (See George Brown (S. Reid). (G. Brandt, August 4, 1989). In George Brown (Matallo and Porco) (October 28, 1995) Arbitrator Hunter ruled that he 7 could not, sitting as an expedited arbitrator, deal with the grievances (which sought reclassification from General Maintenance Worker to Skilled Tradesman) without hearing from at least some of the skilled tradesmen employed by the College. Accordingly, he referred the grievances to a full board of arbitration. These and other cases were reviewed by Arbitrator Springate in Sheridan College (Carolynne Shuster) (December 18, 1996). In that case, although there was agreement on the PDF and the core duties were not in dispute, there was a substantial difference between the parties with respect to the appropriate pay band and the College wanted to be able to call evidence of a member of the academic bargaining unit who worked with the grievor to give evidence in order that "relevant context" be provided. Nevertheless the arbitrator ruled that since "the case essentially involves the application of an accepted classification system to a position with an agreed PDF and [since] neither party was seeking to lead evidence respecting the duties and responsibilities of other support staff', the case was not an appropriate one for referral to a full board. A review of these cases indicates that in all of the cases in which the grievance has been referred to a full board of arbitration it was found that certain issues raised in the grievance could not be determined except through hearing evidence from persons other than or in addition to the grievor and his/her supervisor. Hence, the "one witness rule" that characterizes the expedited process prevented a full and complete inquiry into the issues raised by the grievance. Save and except for one case (to which reference will be made) in none of these cases is it suggested that the complexity of the issues, or the number of factors in dispute or disagreement over the content of the PDF, in and of themselves, constituted a reason for referring the case to a full board of arbitration. However, that appears to be the principal thrust of the College's argument in this case and 8 must be addressed. The one exception appears to be a decision (October 23, 2000) of Arbitrator Hunter in a case involving these parties. In that case 15 individual grievances were referred to expedited arbitration. All involved a dispute over the content of the PDF for each grievor and in all cases 10 out of the 12job factors were in dispute. After receipt of the briefs (each in excess of 200 pages in length) Arbitrator Hunter contacted the parties to express his reservations as to whether the case was suitable for resolution through the expedited process and held a hearing to hear submissions respecting that issue. On behalf of the College it was submitted that the factors which made the grievances in appropriate for expedited arbitration were: the number of grievors, the two different locations where the grievors worked, the number of job factors in dispute, and the absence of agreement on the PDF. Arbitrator Hunter concluded that, given these factors, "justice cannot be done to these grievances using the very circumscribed expedited process." However, it should be noted that, in reaching his decision, Arbitrator Hunter also referred to two other considerations: 1.the wish of the union to call one grievor from each location to testify and possibly to invite any of the other 13 grievors who may wish to speak to elaborate on the "nuances of difference" concerning the position; and 2. the indication that the College would call at least two supervisors to testify and would also lead "substantial evidence" concerning wholesale changes in the process of student registration at the College. Thus, while the disagreement over the PDF and the numbers of job factors in 9 dispute where a factor in Arbitrator Hunter's decision, it would appear that he was also influenced by the purely "procedural" barriers which would have rendered it difficult for the parties to have called the evidence they wished to call - had the case proceeded on an expedited basis. In short, the complexity of the grievances alone was not determinative. In this regard it is relevant to note a very recent decision of Arbitrator Hunter involving these parties. In that case three grievors (Clerk D, Payband 8) sought reclassification as Clerk General Atypical, Payband 10. The parties did not agree on the content of the PDF and there were 7 of 12job factors in dispute. As it has done in this case, the College requested that the grievances be referred to a full board of arbitration and that, since they were "closely related" to thel5 grievances being heard by the full board of arbitration that was constituted following Arbitrator Hunter' s decision of October 23, 2000, that they be consolidated with those grievances. By letter dated January 4, 2001 Arbitrator Hunter declined that request. In his ruling he noted that there were fewer grievors and fewer job factors in dispute than in the earlier case and that, although he "remain[ed] concerned about the lack of agreement on the content of the PDF [he did] not consider that factor to be decisive." I too have some concerns about the lack of agreement on the content of the PDF in these cases. However, it is quite clear that the collective agreement contemplates that arbitrations may proceed in an expedited way notwithstanding the fact that the parties may disagree on the content of the PDF. Article 18.4.2 Step II specifically deals with the situation where the "the grievor is not in agreement with the PDF" and prescribes how such grievances may be referred to arbitration. While the process would no doubt work better if it involved the application of the job classification manual to an agreed upon PDF, the absence of such agreement does not, in and of itself, warrant referral of the 10 grievance to a full board. Where that the case it would be all too easy for a party to circumvent expedited arbitration by the simple device of not agreeing to the PDF - a result which would be contrary to the intent, implicit in the collective agreement, that expedited arbitration is the norm and determination by a full board of arbitration the exception. The advantage of an agreed upon PDF is that it reduces the need for the arbitrator to examine the grievor and his/her supervisor exhaustively in an effort to become informed as to the duties and responsibilities of the position whose rating is in dispute. That would in large measure be accomplished by the PDF and the task of the arbitrator is reduced to one of ensuring that he/she understands the PDF and, of course, to applying the provisions of the job evaluation plan to it. The absence of agreement on the content of the PDF merely makes that task more difficult - particularly where the arbitrator cannot seek the advice of any disinterested observer to determine whether or not a particular duty or responsibility or job evaluation factor is being unduly exaggerated by an employee or unduly diminished by a supervisor. The arbitrator is limited to determining the content of the job based largely on his or her own examination of the grievor and supervisor and the conclusions that are drawn from that evidence may or may not be as informed as they might be. Be that as it may, this is the process to which the parties have agreed and arbitrators must work with it - "worts and all". Nor can the number of job factors in dispute be a determining factor. The system envisages the possibility that there may be disagreement over all 12 of the job factors and, while such extensive disagreement expands the numbers of issues that need to be determined and possibly increases the amount of time that it will take to explore all of those issues, it does not afford a reason for referring the case to a full board of arbitration. 11 Reference to a full board has been made where the process, i.e. the one witness rule, does not permit a case to be advanced by the union or met by the College - such as occurred in the cases cited above where the grievances were referred to a full board. The mere breadth of the disagreement over the evaluation of a position does not, in and of itself, warrant removing it from what the parties have mandated as the preferred process of decision making - viz, expedited arbitration. I mm finally to the one argument advanced by the College which, if accepted, might warrant a referral to a full board. That is the claim that, in order to understand these grievances, I need to understand the larger context - a context which includes the 15 registration clerks whose grievances were referred by Arbitrator Hunter to be heard by a full board of arbitration. It is argued that, having regard to the similarity in duties between the instant grievers and the grievers involved in that case, the College requires the ability to call such other witnesses as may be necessary to inform the arbitrator as to this context in order that decisions of different arbitrators on the appropriate classification and pay band of arguably similar positions be internally consistent. While I agree fully that, in an ideal world, it would be desirable that the decisions of all of the arbitrators on the panel maintained and preserved that internal consistency which the parties sought to establish when they negotiated the job evaluation plan and established various benchmark illustrative classifications. However, two features of the system for resolving grievances combine to compromise that kind of outcome. Firstly, it is "complaint driven", that is, individual grievers choose to advance their own particular grievance to arbitration and to seek a reclassification of their particular position. Thus, what the arbitrator hears is a complaint respecting one position in one College. He/she hears nothing about the wider implications efthat dispute. Secondly, and to reinforce the 12 point, the restrictions that are imposed by the expedited process, effectively prevent the arbitrator from knowing the larger context - not only system wide - but even within the confines of the College itself. Yet this is the system of dispute resolution which the parties have negotiated and the one within which we must operate. It is in the nature of a classification grievance that, if successful, it will have an impact elsewhere in the system. Employees who may be relatively content with earning the same amount as others whom they see as performing similar duties in similar circumstances will naturally seek a reclassification of their position if someone whom they considered their "equal" (in terms of the job evaluation factors) successfully grieves their classification. Were it the case that this kind of"impact" beyond the position being grieved was a relevant consideration in deciding whether or not to refer the case to a full board of arbitration, most cases would be candidates for referral. Howevr, given that the collective agreement indicates a clear preference that these grievances be decided by expedited arbitration that cannot have been the intention of the parties. Consequently, I have come to the conclusion that, however broad the dispute may be and however much disagreement there may be over the PDF, there is no sound basis at present for referring these grievances to a full board of arbitration. However, I note that under Article 18.4.4. the power to refer a grievance to a full board of arbitration may be exercised "on receipt of the documents...or at the hearing" (Emphasis added). If, in the course of my inquiry into these grievances, I determine that, for reasons which become evident at the hearing, the issues cannot be resolved by the expedited process, I reserve the right to refer them to a full board following further submissins. 13 Accordingly, and subject to the condition set out above, it is hereby ordered that the grievances are to be heard in an expedited fashion at a date to be agreed upon by the parties. Dated at LONDON, Ont. this __ day of ,2000 Gregory J. Brandt, Sole Arbitrator