HomeMy WebLinkAboutRae 01-11-17IN THE MATTER OF AN ARBITRATION
BETWEEN:
FANSHAWE COLLEGE
("the employer")
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
("the union")
AND IN THE MATTER OF A GRIEVANCE OF LENNIE RAE
(OPSEU #O1C093)
ARBITRATOR: lan Springate
APPEARANCES
For the Employer: Sheila Wilson, Human Resources
Julie McQuire, Human Resources
Jan Novotny, Chair, Applied Arts and
Technology Division
For the Union: Barbara Ford, Chief Steward
Ann Cummings, Advisor
Lennie Rae, Grievor
HEARING: In London on November 6, 2001
DECISION
In a grievance dated January 11,2001 the grievor alleged that she was
improperly classified as a Secretary C at payband 8 and should instead be
classified as a Support Services Officer at payband 10. I was appointed to
arbitrate the grievance in accordance with an expedited hearing procedure
for classification grievances set out in the applicable collective agreement.
A hearing was scheduled for November 6, 2001. At the hearing the
union spokesperson contended that the grievance should be referred to an
arbitration board. The employer's spokesperson argued that the hearing
should continue in accordance with the expedited hearing procedure.
The expedited hearing procedure is meant to be an informal process.
Indeed, Article 18.4.3.6 of the collective agreement, which governs the
conduct of expedited hearings, starts with the statement: "The parties agree
that the process shall be informal and that legalistic processes normally used
in conventional arbitration shall not be used." The article goes on the limit
the number of persons who may attend the hearing, indicates that the general
intent is not to use legal counsel, and expressly permits the arbitrator to ask
questions. The general practice at an expedited hearing is for the grievor
and his or her immediate supervisor to give evidence in response to
questions from the arbitrator and from the spokespersons for the union and
the employer. This questioning is generally more in the nature of a
discussion than a formal examination-in-chief and cross-examination.
The collective agreement recognizes that not all classification
grievances are suitable for the expedited hearing procedure. The agreement
provides for the alternative mechanism of an arbitration board. Proceedings
before such a board are generally conducted in accordance with traditional
arbitration procedures. Article 18.4.2.5 of the collective agreement provides
that the parties can jointly agree to refer a classification grievance to an
arbitration board. Article 18.4.4 provides that an arbitrator appointed
pursuant to the expedited procedure can on receipt of pre-hearing filings
from the parties or at the arbitration hearing refer a grievance to an
arbitration board.
Article 18.4.2.1 of the collective agreement provides that at least five
days prior to a step one grievance meeting the employer is to provide the
union with the current position description form ("PDF") for the position in
dispute. At the step one meeting the grievor is to indicate in writing whether
he or she is in agreement with the PDF and, if not, what the disagreements
are. The PDF for the grievor's position on file with the employer at the time
of the step one grievance meeting was dated September 27, 1994.
According to the spokesperson for the union, subsequent to the step
one grievance meeting the employer produced a revised PDF for the
grievor's position that had the effect of lowering the ratings for the job
factors of training/technical skills and experience. The union spokesperson
contended that the employer's spokesperson had been the one responsible for
making the changes.
In the course of her submissions the spokesperson for the union
referred to certain classification disputes involving other positions where,
she contended, changes had also been made to PDFs by the spokesperson for
the employer. She then made the statement that the employer's
spokesperson had no regard for over 20 years of history and had acted in an
unprofessional and unethical manner.
For her part the spokesperson for the employer contended that the
other positions referred to by the union's spokesperson were not relevant to
these proceedings. She submitted that in accordance with the applicable job
evaluation manual it is up to the employer alone to define and structure the
grievor's position. She also said that if the union had wanted the grievance
to go before an arbitration board it should have requested this in its pre-
hearing brief.
The spokesperson for the employer contended that at the step one
grievance meeting the parties identified the fact that there was not an up-to-
date PDF and agreed to revise the existing one. She indicated that the
employer's intention in these proceedings was to use the revised PDF, which
she noted had been signed by the grievor. She argued that the parties are in
agreement with respect to the essential duties and responsibilities of the
grievor's position and that it would be a farce to use the earlier PDF.
The spokesperson for the union contended that the employer had
indicated at the step one grievance meeting that its proposed changes to the
PDF would relate only to the percentage of time that the grievor spends on
different duties. She said that she first became aware of the other changes to
the PDF a week prior to the scheduled hearing date. She submitted that an
employee's signature on a PDF form is only to indicate that he or she has
read and understood the PDF.
In her submissions the union spokesperson said that the grievor had
filed a separate grievance with respect to the revised PDF. She did not
advise me of the specifics of this grievance or provide me with a copy. She
stated that she wanted the two grievances to go before the same arbitration
board so that the board could look at both the original and the revised PDF
and at what the spokesperson for the employer had done. She also said that
due to "the messiness of the situation" she preferred to have legal counsel
address these issues on behalf of the union.
At the hearing the spokesperson for the employer noted that the
parties had not gone to a step two grievance meeting prior to the grievance
being referred to arbitration. She said that both parties were at fault for this.
The collective agreement indicates that a step two grievance meeting is
designed to address situations where a grievor does not agree with the PDF.
As noted above, I was appointed to hear a single grievance in
accordance with the expedited arbitration procedure. Neither party
suggested that I had any jurisdiction over the subsequent grievance filed by
the grievor. Further, the expedited hearing procedure does not appear to be
suitable for addressing issues related to the possible consolidation of two
grievances. Those issues would more appropriately be dealt with in the
context of the more formalized procedures of an arbitration board.
As noted in Article 18.4.3.6 of the collective agreement, expedited
arbitration proceedings are meant to be informal and non-legalistic. To be
effective such a procedure requires that there be a high degree of civility and
co-cooperation on the part of the parties. These did not appear to be present
at the hearing held on November 6, 2001. I was particularly concerned with
the union's allegations that related to the personal integrity and
professionalism of the spokesperson for the employer.
Having regard to the above considerations, and in accordance with
Article 18.4.4 of the collective agreement, I ruled at the hearing that I was
referring the grievance to an arbitration board. I hereby affirm that ruling.
Dated this 17th day of November 2001.
~Arbitra~or