HomeMy WebLinkAboutFord 05-10-14IN 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
BOARD OF ARBITRATION: lan Springate, Chair
Ron Hubert, Employer Nominee
Sherril Murray, Union Nominee
APPEARANCE S:
For the Employer: Margaret Szilassy, Counsel
Sheila Wilson, Human Resources Consultant
For the Union: Gavin Leeb, Counsel
Ann Cummings, Local Vice-President
HEARING: In London on November 18, 2004; January 20; March 7; May 2, 2005
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DECISION
INTRODUCTION
These proceedings relate to a January 26, 1998 grievance in which the griever
contended that she was improperly classified. When she filed the grievance she was
classified as a Clerk Atypical at payband 7. As a settlement of her grievance she asked
that she be reclassified as a Support Services Officer ("SSO") at payband 10. As
discussed in more detail below, the union contends that when she filed her grievance the
griever was performing the duties described in a 1994 position description form
("PDF"). This PDF was frequently referred to as "the generic PDF".
The employer objected to the arbitrability of the grievance on two primary grounds.
One was that the appropriate classification of the griever's position as it existed on
January 26, 1998 had been disposed of by two prior arbitration decisions. One was a
May 5, 1999 decision of Arbitrator Ian Hunter. In it he concluded that an April 1998
PDF should be used when addressing a January 26, 1998 classification grievance filed
by Ms. Lynda Groom rather than the generic PDF. The other decision was issued by
Arbitrator Gall Brent on September 28, 2001. That decision related to a grievance filed
by the griever on December 19, 2000 in which she claimed that she should be classified
as an SSO at payband 10. At the time she was classified as a Clerk D at payband 8, a
rating upheld by Arbitrator Brent.
The union contends that the griever was performing a wider range of duties when
she filed her January 1998 grievance than when she filed the grievance addressed by
Arbitrator Brent. It argues that in January 1998 the griever's position should have been
rated at payband 10. It further suggests that when the griever's duties were later reduced
to the payband 8 level her payband 10 wage rate should have been red circled.
In his final submissions union counsel said that the union accepts Arbitrator Brent's
decision as having been determinative of the proper classification of the griever's
current position. He indicated that if the griever was performing the same job duties as
those rated by Arbitrator Brent when she filed her January 1998 grievance then nothing
remains to be decided. As already noted, however, he contended that the griever's
duties in January 1998 differed from her duties when she filed the grievance addressed
by Arbitrator Brent.
The employer's second objection to the arbitrability of the grievance concerned the
length of time it took for the grievance to get to arbitration. The employer argued that
the union did not exercise due diligence in bringing the matter on for hearing and the
resulting delay had been excessive. The union contended that the employer had agreed
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to the manner in which the grievance was handled and had also waived its right to raise
an objection based on timeliness.
THE BACKGROUND
The grievor commenced her employment with the employer in 1989 as a
Technician in Manufacturing Sciences. Less than a year later she was promoted to the
position of Technologist at payband 10. She was in this position for about two 3ears.
Then as a result of a restructuring in Manufacturing Sciences she bumped into the
Registrar's Office as a Clerk doing admissions work at payband 6. She later worked at a
variety of other jobs in the Registrar's office.
In November/December 1994 the employer finalized the generic PDF. It was
designed for an Admission and Registration Clerk position that encompassed most
employees in the Registrar's office. The employer's expectation was that employees
covered by the generic PDF would be trained in various aspects of the Registrar's Office
and be moved from area to area. The PDF did not follow the normal practice of
indicating what percentage of their time employees would spend engaged in different
tasks. The position to be covered by the PDF was initially rated at payband 6. This was
later raised to payband 7.
Ms. Susan Dobson is currently the employer's Associate Registrar. She testified
that in 1995 she was the SIS Coordinator in the Registrar's Office. At the time she was
classified as an SSO at payband 10. She said that almost all of the office staff in the
Registrar's Office were under the generic PDF and that SSOs in the office served as
work coordinators.
The griever testified that she worked in all of the work areas covered by the generic
PDF. She said that this included admissions, registration, front counter, deposit clerk,
graduation, apprentices and adult training. She indicated that she had worked in the
phone room a few times although she did not like working on the phones. She said that
she did not have her own workstation and accordingly she had to carry materials with
her when she went from one area to another.
According to the grievor, even though they were covered by the generic PDF most
employees continued to perform the same functions as before. She indicated that this
included employees who regularly worked at the front desk and on the phones. She said
that because of the generic PDF these employees went from payband 4 to payband 7
without any change in their job duties. The griever testified that only two employees
actually did the generic PDF functions, namely she and Ms. Groom, although Ms.
Groom had not worked as a deposit clerk.
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On March 8, 1996 the griever filed a grievance in which she complained about a
number of alleged shortcomings in the management of the Registrar's Office. These
included SSOs assigning work to staff without being designated as lead hands and what
she described as conflicting work assignments and a lack of management leadership. In
her grievance she also complained about "generic job descriptions & inaccurate job
descriptions". On March 12, 1996 the griever filed another grievance in which she
wrote: "The College has given a generic job description and I am expected to bounce
from assignment to assignment without appropriate management direction through a
lead hand. This causes friction and stress and is affecting my relationship with staff'.
By way of a remedy respecting this grievance the griever asked that she be given a PDF
that stated her job duties clearly and with appropriate time percentages. Both of the
March 1996 grievances were withdrawn by the griever on May 25, 1998.
In response to questions from employer counsel respecting a reorganization of the
Registrar's Office Ms. Dobson testified that the focus of the office became more
customer service specific. She said that staff were asked to become knowledgeable in
one primary area as well as in a secondary or backup area. We infer from Ms. Debsen's
evidence that the employer recognized that its attempt to have staff move between
different job functions while being covered by a single broadly worded PDF had not
been a success. The employer reverted to a more traditional style of staff allocation and
classification. As discussed again below, the griever's primary area became records and
her secondary area became assisting with graduation.
Ms. Dobson testified that the start of classes in September and January and to a
lesser extent in May were busy periods when the priority was to get students registered
and provide them with services. She said that because of this most staff continued to be
reassigned during these periods even after the restructuring. She noted that during peak
periods some staff were too busy to be reassigned. In this regard she referred to the
deposit clerk and "now" to employees in the records group. Ms. Dobson testified that
the periods around fee payment deadlines in July, November and February/March were
also busy and staff would be asked lo assist with processing payments. She said that
staff might be asked to go to the counter for this although the task often involved
employees working at their desks processing cheques that had been mailed in.
THE TIMING OF THE REORGANIZATION
The empbyer contended that the reorganization of the Registrar's office, including
the griever's move into the records area, occurred in 1996. In his opening statement
counsel for the union contended that it was not until mid 1998 that the griever was
offered and accepted the position of Records Clerk. In his final submissions he
indicated that the union now accepted most of what the employer was contending in
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terms of when the restructuring occurred. He argued, however, that even after the
reorganization the grievor had continued to be deployed throughout the office to
numerous functions on an on going and as needed basis.
Although after the evidence was led union counsel essentially acknowledged that
the employer was correct in terms of when the restructuring occurred the grievor's
testimony with respect to the timing of the restructuring was instructive. During the
hearing she said that staff were asked where they would like to work in late 1997 or
early 1998. Employer counsel subsequently suggested to the grievor that the discussions
had actually occurred in 1996 while she was still working in A Building. The grievor
replied that this was definitely incorrect and that the discussions did not occur until way
after a move to E Building.
In her evidence-in-chief the grievor said that she thought the Registrar's Office had
moved from A Building to E Building in the summer of 1997. She said that following
the move to E Building she was given her own workstation although she continued to
perform the generic job. She testified that following the move staff were asked for their
first and second job preferences as well as the job they least preferred. She said that she
identified records as her first choice and the phones as her last choice.
Counsel for the union questioned the grievor about a November 1, 1996 memo that
is discussed again below. The memo indicated that she had been assigned to the records
area in November 1996. Union counsel asked the grievor how her job had changed
between November 1996 and the summer of 1997. The grievor replied that it did not
change at all. She said that she still moved around to various areas. She also said that
she thought that it was at this time that management started to develop work groups and
decide who got their choices. She added that it was the start of management deciding
who would end up where.
Most of the employer's evidence relating to the restructuring of the Registrar's
Office took the form of documentary material. The management person who oversaw
the restructuring was Ms. Pat Koziol, Manager of Admission and Registration Services.
According to counsel for the employer Ms. Koziol went on long-term disability starting
in 1998. She said that in 2000 Ms. Koziol's doctor wrote a note stating that she was
unable to participate in a hearing involving a grievance filed by Ms. Groom. Employer
counsel indicated that based on this note the employer understood that Ms. Koziol could
not be called as a witness in these proceedings. Union counsel indicated that he did not
accept that Ms. Koziol could not be called as a witness. Whatever the current status of
Ms. Koziol's health, neither party attempted to call her as a witness.
The November 1, 1996 memo touched on above was a memo to staff from '~Jeanne,
Pat and Sandy". A covering page indicated that Ms. Koziol sent out the memo to ~29
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addressees". We presume that "Pat" was Ms. Koziol. A staff newsletter item discussed
below identified Ms. Jeanine Buss as Manger of Information and Customer Services and
Registrar, and Ms. Sandy Richards as Associate Registrar (Admissions). Portions of the
November 1, 1996 memo are set out below.
Memo To Registrar's Office Staff
We have completed the staff assignment portion of our restructuring plan
and all staff have mw been assigned to either the Customer Service or
Customer Service Support Unit. Please note, however, that until the
position of Manager, Customer Service Unit/Manager is finalized, all
staff will continue to report to Pat.
The Customer Service Support Unit will be staffed as follows with any
changes occurring sometime during the week of November 4:
Admissions and International - Joanne, Dean, Francois, Janet, Carl
Registration - Lynne, Lynda, Cheryl, Michael, Esther
Fees - Shirley, Sharon, Deb
Records- Cathy, Barb, Jeanette
Systems- Susan
We'll keep you informed.
Jeanine, Pat and Sandy
Employer counsel pointed out to the grievor that the November 1, 1996 memo said
that staff assignments were complete as of November 4, 1996 and that staffing in
records was to consist of her, Cathy and Jeanette. The grievor replied that this was still
in theory, there had been discussions. She also said that even after she was placed in
records she continued to bounce around and do other work.
The November 29, 1996 edition of the staff newsletter "Fanshawe College News"
announced the establishment of Registrar and Student Awards Services as a result of
combining the Registrar's Office, Student Awards and some Continuing Education
customer services. It noted that a relocation to E-Building was planned for May or June
1997. It also contained a list of all Registrar and Student Awards Services staff. This
list included the following entry:
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Records Officer - Cathy Evison
Records Support Staff - Barb Ford
- Jeanette Lenehan
Counsel for the employer referred the grievor to the newsletter and suggested that
the discussions and restructuring had occurred in 1996. The grievor replied that the
newsletter had related to plans for the future.
Also introduced into evidence was a May 30, 1997 memo from Ms. Koziol to Ms.
Cathie Auger, Director of Student and Staff Services. The memo purported to outline
what had occurred with respect to the restructuring of staff beginning with changes to
the duties of certain SSOs in June 1996. The memo included the following entries:
Following is work done to date on restructuring the staff within the
Admission and Registration unit with the objective of creating individual
job descriptions. All changes are done in consultation with and the
agreement of staff. The objective is to create primary and secondary
areas of responsibility for each staff member. The secondary
responsibilities allow for the sharing of work between teams and ensures
a "connection" so that teams do not become insular. Changes are
normally introduced one at a time to avoid confusion in the office and are
never made at the start of a term. Planned completion date is September
97.
ooo
Oct 96- Restructuring discussions with staff asked to identify their
"team" preferences. Teams are Admissions, Fees, Registration
and Records.
Nov 96 - All staff (with one exception) were placed in their first choice
of teams within Admission and Registration. This marks the
establishment of permanent assignments for staff.
Employer counsel asked the grievor about the statement in Ms. Koziol's memo that
in October 1996 staff had been asked to identify their team preferences. The grievor
replied by asking which staff the memo had been referring to, was it the SSOs or the
generic clerks like herself.
On October 6, 1997 Ms. Buss issued an interoffice memo which stated that "Barb
Ford will have responsibilities to work in graduation as part of her on-going regular
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duties .... Barb is the grad assistant ... Welcome to the grad team, Barb!" As noted
above, graduation became the griever's secondary area of responsibility. When asked
about the memo by employer counsel the griever indicated that she recalled having
worked on only one graduation ceremony held in June 1998. Employer counsel
suggested to the griever that she had worked on the fall graduation in October 1997 and
that Ms. Buss' interoffice memo was announcing that fact. The griever replied that the
memo only announced that she was joining the graduation team. Employer counsel then
suggested to the griever that she had actually worked on both the October 1997 and
spring 1998 graduations. The griever replied that assisting with graduation had been a
duty under the generic PDF. Later during the hearing the parties agreed that if she were
called as a witness Ms. Buss would testify that the griever had assisted with the 1997
graduation.
When the griever assisted with graduation she did so on a full-time basis. In an
April 16, 1998 email addressed to the griever and Ms. Evisen Ms. Buss stated that the
griever would start working on the June 1998 graduation on April 22, 1998. She also set
out how the griever's other duties would be distributed amongst staff. She did not refer
to the distribution of any non-record related functions being performed by the griever.
It is apparent that due to the passage of time the griever's memory was faulty and
that employees were asked about their position preferences in October 1996 prior to the
move to E Building. The griever was assigned to the records support staff position no
later than November 1996 and to her secondary duty assisting with graduations in
October 1997.
As noted above, in his final submissions union counsel indicated that the union
now accepted most of the employer's version of when the reorganization of staff had
occurred. He argued, however, that even after the reorganization the griever continued
to be deployed throughout the office.
THE GROUP GRIEVANCE OF MAY 29, 1997
Although the restructuring of employees occurred in 1996 work on new PDFs for
the various positions to which staff were assigned appears not to have been undertaken
until 1997. A new PDF for the griever's position was finalized on February 4, 1998.
On May 29, 1997 ten employees including the griever signed a group grievance.
Among other matters the grievance alleged an incorrect generic job description. (One
employee noted on the grievance that she was signing "for job description only".) The
full text efthe grievance was as follows:
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STATEMENT OF GRIEVANCE
Violation of Article 3 et. al and unfair discipline. We have a generic-
incorrect job description issued by Pot Keziel. Management is not
maintaining efficiency and they are treating staff differently. Some are
given short notice for various changes eg. work assignments. Other
workers do not need to change. Support staff are assigning work to other
support staff.
SETTLEMENT DESIRED:
1) Cease and desist
2) Correct position description form that reflect actual duties
3) Assignments are given out by managers and not various support staff
workers.
Counsel for the employer asked the griever why if the generic PDF still reflected
her duties in May 1997 she had sought a PDF that reflected her actual duties. The
griever's initial response was that she was a steward for the office. The implication
appeared to be that she had signed the group grievance in her capacity as a steward. Ms.
Louise Watts, however, was listed on the grievance as the relevant steward. The griever
did not pursue her claim that she had signed the grievance as a steward. Rather, she
later said that everyone wanted to have PDFs developed respecting what was expected
of them. Employer counsel put it to the griever that the 1994 generic PDF did not
reflect what she was doing in May 1997. The griever replied that she had not been
doing the phones. Employer counsel then suggested to the griever that the February 4,
1998 PDF had reflected her actual duties following the restructuring in 1996. The
griever replied that the February 4, 1998 PDF reflected the duties that were assigned to
her in March 1998.
Union counsel subsequently asked the grievor what the group grievance had been
about. The griever said that about 30 clerks had been under the generic job description
but were not doing the same things. She said that the phone people had been put under
the PDF but continued to do only phone work and others in admissions were only doing
admissions work. She added that only she and Ms. Groom had actually performed the
duties of the generic PDF except that Ms. Groom did not do the deposit duties.
According to the griever everyone was upset that with all the talk of restructuring
nothing was actually changing although they were told that it was coming. She said that
the group grievance was an attempt to make Human Resources deal with the issue. The
griever testified that when she signed the group grievance she was doing the duties of
the 1994 generic PDF. She said that her purpose in signing was to get fairness and
equity and to get her own job in the sense of working in one area, not all areas.
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Ms. Auger prepared a written step two response to the group grievance on July 7,
1997. In it she stated that "the position descriptions will be reviewed and revised during
the summer months for final completion in September, 1997". She completed her reply
with the following comment:
The College recognizes that changes associated with organizational
restructuring, compounded with an office relocation is often difficult. It
is our hope with the new structure in place, open communication and
working together that any concerns that arise can be discussed and
resolved.
THE FEBRUARY 4, 1998 PDF
One of the documents filed into evidence was a March 25, 1998 step two reply to
the griever's January 26, 1998 grievance signed by Ms. Auger. Attached to the reply
was the new PDF for the griever's position, now titled Registration and Records Clerk,
dated February 4, 1998. This PDF summarized the griever's position as follows:
Under the general supervision of the Manager, Admission and Registration
Services, the incumbent is responsible for all post-registration processes
related to over 30,000 Continuing Education students annually, as well as
more complex record adjustments for post secondary students. The
incumbent is also responsible for responding to over 2,000 information
requests received annually from applicants, students, former students, and
third parties. She/he also assists in a wide range of activities in preparation
for convocation.
The February 4, 1998 PDF was rated by the employer in March 1998. This rating
resulted in the griever's position being raised from Atypical Clerk at payband 7 to Clerk
D at payband 8. The employer made the change retroactive to November 1, 1996. The
griever signed the rated PDF on December 9, 1998 indicating that she had read and
understood it. She added a note stating that she did not agree with the PDF's content or
rating and that after she and Ms. Keziel had completed working on it she would like to
have it m-rated.
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THE GRIEVOR'S EVIDENCE ABOUT WHEN SHE CEASED DOING THE WORK
OF THE GENERIC PDF
As noted above, it was the griever's evidence that even after she was moved to the
records area she continued to work under the generic PDF.
The grievor testified that following the move to E Building she finally had her own
workstation but she was still performing the generic job. She said that for 40 to 50
percent of the time she was not doing records work but rather helping with registration,
admissions, graduation and the apprenticeship area as well as doing fee counter
payments, mail payments and customized letters with respect to records. She added that
she recalled doing deposits two or three times during this perle d when the person in the
deposit clerkjeb was absent. Later in her evidence the griever said that in January 1998
she was doing all of the functions in the generic PDF at different times except for the
phones. She also said that in January 1998 she was still spending 40 to 50 percent efher
time doing non-records work.
Counsel for the employer questioned the griever about her claim that she continued
to perform all of the duties listed in the generic job description. The griever said that
she did not do them all at once, it depended on the cycle at the College. In response to
additional questions from employer counsel the griever said that in 1995, 1996, 1997
and 1998 she had worked in admissions, registration, deposits, the front counter and
records and at times she was given projects that involved analyzing data. She made the
statement: ~I did whatever they told me to do".
When being questioned by employer counsel the grievor said that she began to
solely perform the work efthe records clerk PDF in mid-1998 and prior to then she was
still being moved about even though she had her own work station. Employer counsel
asked the griever if she had continued to do admissions. The griever replied that it
depended on the cycle, she would be told, '~Barb help here", '~Barb do this". Later in her
evidence the griever said that at the time of the grievance she was working wherever
they placed her. Employer counsel asked her when this had stopped. The griever
replied that it had been in March or April 1998. She also said that her assigned duties
were whatever they told her to do. Employer counsel asked the griever if this could
change day to day and she replied that it could.
Employer counsel suggested to the grievor that except for peak periods involving
7% of her time she had not continued to work in admissions or registration. The griever
disagreed. Employer counsel later asked the griever to give an example of when she had
been assigned responsibility with respect to admissions and registration. She replied
that she would be told she was going to the counter because they were short staffed.
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COMPUTER REPORTS
For the purpose of these proceedings the employer had several reports run off from
its computerized records listing when various functions were performed by the griever.
Ms. Dobson testified at some length with respect to a report relating to SIS
functions performed by the griever between January 1996 and May 15, 1998. She said
that the report demonstrated that although the griever had been working in the
admissions area she was no longer doing admissions work as of the fall of 1997. She
testified that the last reference in the report to the griever doing part-time registrations
was on May 13, 1997. She also said that during late 1997 and early 1998 the griever
could not have been assessing applicants since there was no reference in the report to her
using admission related functions. She said that the computer codes reflected that from
September 18, 1997 to May 15, 1998 the griever had been doing primarily records work.
In response to questions from union counsel Ms. Dobson agreed that the report in
question related only to SIS functions. She also agreed that the report was only as good
as the underlying computer database. She acknowledged that the report was developed
using an old VAX system.
Union counsel put it to Ms. Dobson that a number of the functions listed on the
report could have been used to achieve different ends. Ms. Dobson agreed. She also
agreed that the report did not pick up certain duties such as Continuing Education
registration at the front counter or deposit clerk work. Ms. Dobson further
acknowledged that work performed by a person in admissions which involved sending
out letters that did not involve a status change would not show up on the report. She
noted, however, that most letters did relate to a status change.
Ms. Dobson agreed with union counsel that if someone phoned in with a question
that did not require accessing a computer it would not be reflected in the report. She
also agreed that the same would be true if someone had looked up a student's record but
not made any change to it.
When cross-examining the griever counsel for the employer suggested to her that
she had frequently done applicant processing which was an admissions and registration
function. The griever agreed. Employer counsel then noted that the report indicated
that from January to September 1996 she did applicant processing on a number of
occasions but had not performed this task from November 1996 on. The griever
indicated that this was because SSOs had started to do mass productions.
The February 4, 1998 PDF listed one duty associated with the griever's new
position as being to "processes apprentice registrations". Employer counsel put it to the
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griever that in 1997 and 1998 she had responsibility for apprenticeship registration. The
griever replied that her SSO was doing this work and she had backed her up on
occasion.
According to the SIS report the first time the griever performed apprentice
registration was in March 1997. The report indicates that she also performed the task in
April, August and September 1997. When asked about this by employer counsel the
griever initially suggested that she might have been helping Ms. Evisen some of the
time and filling in for her while she was on vacation. The griever later agreed with
employer counsel that she had filled in for Ms. Evisen in March and April 1998.
Counsel for the employer put it to the griever that prior to the restructuring when
she was working under the generic PDF she had frequently been assigned to work at the
front counter. The griever replied that this was ;~eff and on". In response to further
questions from employer counsel the griever indicated that when she worked at the front
counter she had taken in money. Employer counsel suggested to the griever that this
would have required that she open "batches". The griever replied that sometimes she
worked under other employees and shared their deposit and so did not have to open a
batch. She agreed that if she were at the counter full-time she would typically have her
own batch.
Employer counsel questioned the grievor about a batch report starting on
November 25, 1992. The report indicated that from November 1992 until September
1996 the griever frequently did Continuing Education registrations but the last time she
did so was on September 27, 1996. The griever's evidence was that she was certain she
had continued to take Continuing Education registrations at the counter after September
27, 1996. Employer counsel later then put it to the griever that had she continued to
open batches and this would have shown up on the report. The griever replied that it
would not have shown up if she had been working under someone else's account.
Employer counsel referred the griever to a batch report respecting payments
received at the counter for post-secondary students. The report indicated that the griever
frequently performed this task from October 1993 to July 1996. The report indicated
that the griever also performed the task on one day in each of August, September and
November 1996, on five days in January 1997, six days in May 1997, one day in July
1997 and four days in July 1998. In response to questions from employer counsel the
griever indicated that January and September were peak periods at the counter for
receiving money, May was %emewhat" of a peak period and July might be a peak
period depending on when the billing was done for the fall. The griever contended that
the four entries for July 1998 demonstrated that she had still been performing this task
when she was in records. This prompted employer counsel to suggest that it was
consistent with an entry in the 1998 PDF that said the griever '~May perform other duties
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within Registrar and Student Awards Services during peak periods". The grievor did not
respond to this suggestion.
Employer counsel referred the griever to a report respecting applicant program
criteria beginning with January 3, 1996. The report listed various times when the
griever acting as an admissions clerk ascertained whether applicants had met the criteria
for certain programs. The report indicated that the griever regularly performed this
function until July 17, 1997 and then ceased doing so. Counsel for the employer stated
that there was only one day subsequent to July 17, 1997 when the griever was recorded
as performing this function, namely on January 6, 1998.
In response to employer counsel's questions relating to the applicant program
criteria report the griever initially said that a computer program had taken over the
griding that '~we" used to do manually, and so the process itself had changed. Employer
counsel asked the griever if she was saying that the process changed subsequent to July
1997. The griever replied that she was not positive of the date. The griever later said
that at one time four clerks had handled their own programs but now one clerk did the
task for all of the programs. Employer counsel suggested to the griever that she was the
one who did the work in 1996 and 1997 but after July 1997 someone else had been
doing the function. The griever agreed, adding that it was probably Jeanne Pietens. The
November 29, 1996 Fanshawe College News listed Ms. Pietens as an Admissions
Officer.
TIlE GRIEVOR'S 1998 DISCUSSIONS AND NOTES
In support of her contention that she was still working under the generic job
description in January 1998 the griever referred to several discussions that she had with
Ms. Keziel in 1998 together with notes that she made following the discussions. She
also referred to notes she had made to record her own views respecting certain matters.
The grievor testified that on January 23, 1998 she and Ms. Groom met with Ms.
Keziel. This was a few days before both employees filed classification grievances,
including the grievance that gave rise to these proceedings. The griever testified that the
three of them discussed the generic job description. She said that at the meeting Ms.
Keziel indicated that in hindsight it had not been her duty to write the generic PDF and
also noted that she had not received any formal training in how to write a PDF. She said
that Ms. Keziel commented that it had been unfair that the phone and front counter
people went from payband 4 to payband 7 without any change in their duties and in
hindsight this had been a bad idea. According to the griever Ms. Keziel also said that
she agreed with the point of view expressed by her and Ms. Groom and that she wanted
a union-management meeting to resolve problems.
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During the hearing the grievor suggested that as of the January 23, 1998 meeting
the office restructuring had not yet occurred. She testified that Ms. Koziol made the
statement that she was trying to get senior people to move on the restructuring.
According to the grievor Ms. Koziol also said that "we" would be restructured and
would have to write new PDFs but Human Resources had said that the new PDFs were
not to have any adjectives taken from the job manual.
Notes prepared by the grievor after the January 23, 1998 meeting indicate that Ms.
Koziol voic ed dissatisfaction that she had been assigned to draft the generic PDF. The
notes also record Ms. Koziol expressing the view that the process had been unfair with
some staff going from payband 4 to 7 and she did not disagree with the grievor's and
Ms. Groom's point of view. According to the grievor's notes Ms. Koziol had wanted to
set up union-management committee meetings to solve internal office problems. The
notes also contain the following two statements respecting comments made by Ms.
Koziol, namely: "Pat said she has been trying extremely hard to get Sr. mgmt & HR to
'help' for meeting Re: JD's" and "stated not sure how JDs were properly written but
instructed by HR not to use adjectives". At the hearing the grievor indicated that "JD"
was a reference to a job description. There was nothing in the grievor's notes about Ms.
Koziol saying that she was trying to get senior people to move with the restructuring or
that staff were to be restructured.
The grievor again met with Ms. Koziol on March 23, 1998. This was about two
months after she had put in her grievance. By then a new PDF had been prepared with
respect to the grievor's records position. According to the grievor, Ms. Koziol asked her
a lot of questions about a proposed job description that the grievor had submitted. She
said that Ms. Koziol commented that she felt the grievor had used all of her talents under
the generic job description but would not do so anymore. Counsel for the union asked
the grievor what Ms. Koziol had meant by "anymore". The grievor replied that after
restructuring she would be in a job bound by a new PDF and the expectation that she
would bounce all over would stop. Later in her evidence the grievor said that Ms.
Koziol commented that she would have to write a PDF with respect to what she
expected a replacement for the grievor to do, not what the grievor was capable of or had
done.
The full text of the grievor's notes of her March 23, 1998 conversation with Ms.
Koziol are set out below. The reference to a PDF still not being available appears to
relate to the fact that the employer had not yet rated the February 4, 1998 PDF.
Went to HR (lwk wait) & PDF still not available
After Lunch
- In Pat's office to advise no lunch for seminar tomorrow.
16
- She reading my proposed under class grievance JD.
- Start asking a lot of questions about JD I have submitted for a classn grievance.
States - I am a class "8".
- She had used me, but won't anymore.
- She to make PDF's for what "replacement" could do - not actually
what I do.
- She not looking at my PDF for what I am actually capable of or have
done.
- Claims she thinks that I have too much potential for the office and that
there are only so many positions available.
- States "phone people" are not presently capable of PDF's but they are
to learn it.
- States she not sure if front line cannot "know" what back support
know - but they will learn! !
- Pat said "your logic is confusing me, you have been hanging around
lawyers too long" - re: estates
In her evidence the grievor referred to an April 27, 1998 note that she wrote in
which she set out some of her views. When discussing this document the grievor said
that she chose the records job because to work in records one has to know what other
work groups are doing. She said that when she wrote a letter to a student she had to
access the records for the student, know about fee payments and understand the flow and
processes of different work groups.
The grievor said that her job had gone from one peak to another. She testified that
in January 1998 she was dealing with intake, student letters and student tax forms. She
said that she had also been assigned academic offenses and code of conduct reports and
was assisting with graduation. She contended that she was still in on one of the higher
stress jobs. She testified that although "we all" had been denied vacations during
orientation she was also denied vacation outside of that time.
When discussing her April 27, 1998 notes the grievor referred to a discussion she
had with Ms. Koziol without specifying when it was that the discussion took place. She
said that Ms. Koziol told her she had used her more than others since she did not want
her to become bored. According to the grievor, Ms. Koziol also told her that because of
budget constraints she could not be placed at payband 10 and there was no money for a
raise. The grievor testified that she told Ms. Koziol there would have been money had
the employer not raised other employees from payband 4 to payband 8.
17
The full text of the grievor's April 27, 1998 notes are set out below:
April 27/98
Am still under the most "generic" job description. All other employees
have high stress "peak" periods. My job switches from one peak to next
constantly with added "projects" thrown in. Expected to train
replacements (p/t'ers or S SO' s) or (mgrs).
Denied vacation.
Denied 1 HR meetings.
Boss said (Koziol)
- knows she uses me more than most because she doesn't want me
bored.
- Too much potential for allotted PB's and budget.
- No $ for raise (prior to all going to PB 8) 4-6-7-6-8 (?) [illegible].
- Phone & counter 4-8 (?) No Education.
THE GRIEVANCE
The grievor testified that in 1995 she had raised concerns respecting her
classification under the generic job description with Ms. Koziol. She said that they
discussed the fairness of the generic PDF and her duties. Union counsel asked the
grievor what her concerns had been with respect to the generic PDF. She replied that all
of the clerks in the Registrar's Office had been involved in designing the document but
only a few of them had done all of the listed functions. She noted that the phone people
and front desk staff received a rise even though for some their duties had never changed.
She also said that she found the generic PDF highly demanding and highly stressful.
She said that she had to bounce around and when she was in A Building she did not have
a workstation and accordingly she had to carry materials around, which was stressful.
She added that she would work at the counter one day and do deposits the next day.
As noted above, the grievance giving rise to these proceedings was dated January
26, 1998. On a line on the grievance form where she was asked for her
%lassification/class title" the grievor wrote '~Registration and Records Clerk". On the
grievance form she wrote, ~I am improperly classified". By way of a desired settlement
she asked for an external audit of the Registrar's Office and '~that I be reclassified to
SSO PB 10 with retro pay benefits and seniority to my original ~generic job description'
grievance dated March 8, 1996".
18
At the hearing union counsel asked the grievor what it was she was grieving. She
replied that the issue was that her work had not changed. She added that she was very
frustrated. She said that she was still expected to do various duties and she felt that she
was under rated and under paid for what she was being asked to do.
On January 26, 1998 Ms. Groom also filed a grievance in which she contended that
she was improperly classified. In her grievance she asked that she be classified at
payband 9 retroactive "from date of original grievance of May 29, 1997".
Ms. Sheila Wilson, a Human Resources Consultant with the employer, replied to
both the grievor's and Ms. Groom's grievance in a single step one response dated
February 18, 1998. In her reply Ms. Wilson contended that the generic PDF had
accurately reflected the duties of the two employees up to the time of the restructuring
and that they had been appropriately evaluated at payband 7. Ms. Wilson also said that
the employees had been provided with revised job descriptions which reflected their
current duties and responsibilities and the results of an evaluation of those job
descriptions would be communicated to them early in March 1998.
On February 19, 1998 Ms. Jean Crawford, the Local Union President, wrote to Ms.
Gall Rozell, the employer's Human Resources Manager, asking that a grievance of Barb
Ford and a group grievance be placed on hold pending the result of the new PDF's that
were being prepared. Ms. Crawford did not specify which Barb Ford grievance she was
referring to. The group grievance was presumably the one signed by the grievor dated
May 29, 1997. The text of Ms. Crawford's message to Ms. Rozell was as follows:
We agree to put the Barb Ford & the group grievance scheduled for Mar.
12/98 on hold pending the result of the job descriptions currently being
done in Registrars.
It is our anticipation that we receive accurate job descriptions and the
case then can be dismissed.
A second step grievance meeting was held with respect to the grievor's January 26,
1998 grievance on March 11, 1998. Ms. Auger sent the grievor and the union a step 2
response on March 25, 1998 that enclosed a copy of the February 4, 1998 PDF. In her
reply Ms. Auger contended that the generic PDF had accurately reflected the grievor's
duties up to the restructuring in November 1996. She also said that the February 4, 1998
PDF had been evaluated with the result the grievor's position was being raised to
payband 8 retroactive to November 1, 1996. The full text of Ms. Auger's step 2
response was as follows:
19
I have considered the information presented at the Step 2 meeting held on
March 11, 1998 and believe the duties you were performing in December
1994 and up to the time of the Registrar's Services restructuring in
November 1996 are accurately reflected in the position description form
dated December 1994. I also believe this position is appropriately
evaluated as Clerk Atypical payband 7. Therefore, your grievance is
denied.
It appears some confusion exists between the position description form
dated December 1994 and the attached revised job position which you
have recently received. This revised position description form has been
submitted to you and reflects your duties and responsibilities as of the
restructuring of the Registrar's Services in November 1996. This revised
position description has been evaluated as a Clerk D, payband 8 and this
evaluation, along with the effective date retroactive to November 1,
1996, has been communicated to you. Since you did not participate in
the classification review meeting I would encourage you to meet with Pat
Koziol to discuss the revised job description.
I trust that this resolves the concerns which you presented in your
grievance.
On May 4, 1998 the grievor filed another grievance in which she alleged that she
was improperly classified "re new PDF rec'd". As a settlement of this grievance she
asked "To be reclassified to SSO PB 10 with retro pay to Nov/96 when restructuring
occurred. Also require retro seniority and interest". Ms. Groom filed a grievance on
May 4, 1998 in which she also claimed that she was improperly classified "re new PDF
received". In it she asked to be reclassified at payband 9 retroactive to November 1996.
At the hearing employer counsel asked the grievor why in her May 4, 1998
grievance she had asked to be reclassified retroactive to November 1996 when
restructuring occurred. The grievor's response was: "I should maybe have said
recurring, I don't know".
On April 20, 1998 the union advised the employer that it was referring the grievor's
January 26, 1998 grievance to arbitration. On June 16, 1998 the chair of this arbitration
panel was notified by the Joint Scheduling Committee that he was to hear the grievance
on October 19, 1998 pursuant to the expedited procedure for classification grievances.
The employer then asked that the hearing be adjourned due to Ms. Koziol's
unavailability. The hearing was subsequently rescheduled to May 19, 1999. On April
20
28, 1999 Ms. Crawford asked that the matter be put on hold pending a decision relating
to Ms. Groom's case. The employer agreed to the request.
THE DECISION OF ARBITRATOR HUNTER
On May 3, 1999 Ms. Groom's January 26, 1998 grievance came before Arbitrator
Ian Hunter in accordance with the expedited process for classification grievances. Ms.
Ford acted as the union spokesperson. The first issue at the hearing was which PDF
should be utilized. The union argued that it should be the generic 1994 PDF. This was
the only PDF available when Ms. Groom filed her grievance. The employer argued that
a PDF dated April 28, 1998 should be used. This PDF had resulted in the employer
raising Ms. Groom's position from payband 7 to payband 8 retroactive to November 1,
1996. Arbitrator Hunter ruled orally that the 1998 PDF should be utilized. In a written
decision dated May 5, 1999 he set out the following reasons for his finding in favour of
using the 1998 PDF:
(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
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 depute.
(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
21
cannot see that any prejudice flows to the Union from the use efthe
revised P.D.F. (Exhibit 3).
In his decision Arbitrator Hunter noted that "the union" (presumably meaning Ms.
Ford on behalf efthe union) submitted that to proceed using the 1998 would dispose of a
second grievance filed by Ms. Groom as well as a grievance filed by Ms. Ford. He did
not indicate which grievance this had been. In the instant proceedings employer counsel
sought to cross-examine the griever about which grievance she had been referring to. A
majority of the arbitration board (Mr. Hubert dissenting) upheld an objection by union
counsel to the griever being cross-examined about her actions when serving as the union
advocate in another proceeding.
Arbitrator Hunter did not rule on the merits of Ms. Groom's classification
grievance. Instead he referred the matter to a full board. He did so because the union
had raised an issue respecting the employer's approach to writing PDFs and because the
union and Ms. Groom had indicated their disagreement with the contents of the 1998
PDF.
Ms. Groom's January 26, 1998 grievance was scheduled to be heard by an
arbitration board on November 8, 2000. By that point she had moved into the
Graduation Coordinator position. On November 8, 2000 the union, the employer and
Ms. Groom signed minutes of settlement that resolved all efMs. Groom's outstanding
classification grievances.
THE DECISION OF ARBITRATOR BRENT
On December 19, 2000 the griever filed a grievance in which she alleged that she
was improperly classified. Due to the employer's rating of the 1998 PDF the griever
was at the time classified as a Clerk D at payband 8. In her grievance she asked that she
be reclassified to a SSO at payband 10 retroactive to the date of the grievance. The
employer denied the grievance and the union referred it to arbitration. The employer
proposed that the December 2000 grievance and the griever's January 26 and May 4,
1998 grievances be dealt with at a single hearing. The griever rejected this proposal.
On March 7, 2001 she wrote to Ms. Wilson stating that: ~'I want the original generic job
grievance heard first and when the decision comes back for that one I will consider
combining the other two".
The griever's December 19, 2000 grievance came on for hearing before Arbitrator
Brent on September 24, 2001 pursuant to the expedited procedure for classification
grievances. After hearing evidence respecting eight job factors that were in dispute
22
Arbitrator Brent concluded that the grievor's proper classification was that of a Clerk D
at payband 8. She issued a decision to this effect on September 28, 2001.
THE DELAY ISSUE
The grievor's January 26, 1998 grievance came on for hearing before the Chair of
this panel on November 18, 2002. Based on a number of issues raised by the parties,
including a claim by the employer that it would be inappropriate to go back in time to
address the grievance and the employer's contention that the issues in dispute had been
resolved by the awards of Arbitrators Hunter and Brent, the matter was referred to a full
board. A decision to lhat effect was issued on December 11, 2002. On November 20,
2003 the union appointed its nominee to the arbitration board. The employer appointed
its nominee by letter to the Chair dated December 16, 2003. The letter stated that this
information was being provided, "without prejudice to any position which you may take
at the hearing with respect to the arbitrability of this matter". Following the appointment
of the two nominees the process began to set a convenient hearing date.
As noted above, one argument advanced by employer counsel was that these
proceedings should be terminated due to a delay in bringing the matter to arbitration.
She outlined the history of what had occurred since the filing of the grievance in January
26, 1998. She argued that the delay had been excessive. In response to the union's
submissions she contended that the employer had been prejudiced by the delay due to
the unavailability of Ms. Koziol.
Union counsel also outlined the history of the grievance. He noted that the
employer had not raised the grievor's earlier grievances before Arbitrator Brent or asked
that the grievances be consolidated or dealt with together. He submitted that the only
possible period that might need to be addressed or explained was the period after the
referral to an arbitration board. He argued that the employer had waived its right to raise
a timeliness objection with respect to that time period since employer counsel only
advised him of her intention to raise the objection four days prior to the start of the
hearing.
The January 26, 1998 grievance filed by the grievor had a lengthy and unusual
history. Most of the delays in dealing with the grievance, however, arose out of
agreements by the parties to adjourn scheduled arbitration dates. The parties effectively
agreed to leave the grievance outstanding. The lapse in time did not impair the
employer's ability to meaningfully address issues relating to the grievance. Under other
circumstances the employer might have had a legitimate complaint with respect to the
passage of time between December 11, 2002 when the matter was referred to an
arbitration board and November 20, 2003 when the union appointed its nominee. The
23
employer, however, appointed its own nominee on December 16, 2003 without raising
an express objection based on delay and then waited until a few days prior to the first
day of hearing before doing so. Because of this we find that the employer waived its
right to object to any delay subsequent to December 11, 2002. Accordingly, the only
issue to be decided relates to the griever's duties when she filed her grievance.
THE EMPLOYER'S SUBMISSIONS RESPECTING THE GRIEVOR'S JANUARY
1998 DUTIES
Counsel for the employer contended that the preponderance of the evidence
establishes that the griever was performing the duties referred to in the February 4, 1998
PDF when she filed her grievance on January 26, 1998. She argued that these duties
were assessed by Arbitrator Brant and accordingly these proceedings should be
terminated.
Employer counsel referred in her submissions to the evidence respecting the
movement of employees to their primary areas of responsibility. She contended that the
primary responsibilities of all staff were finalized in the fall of 1996. She noted that the
interoffice memo of November 1, 1996 stated that all staff had been assigned and
referred to the griever as being in records. She also pointed to the reference to the
griever being in records in the November 29, 1996 issue efthe Fanshawe College News.
Employer counsel contended that the computer reports demonstrated that prior to
November 1996 the griever had spent a great deal of time performing admissions
functions but in November 1996 she was no longer performing those functions but
rather records work. She argued that the reports demonstrated that the griever's
involvement with Continuing Education registration ended in the fall of 1996. She
further contended that the griever's predominant role with respect to applicant program
criteria ended in the fall of 1996 with her subsequent involvement being limited to two
days in June and two days in July 1997 as well as one day in January 1998. According
to employer counsel the reports showed that at the time the grievance was filed the
griever was not doing admissions clerk or fee registration work but was involved with
her new duties related to apprenticeship registration.
Employer counsel noted that new PDFs were not developed at the time of the
restructuring and submitted that this had been an issue efcencern to staff members. She
argued that this had resulted in the May 29, 1997 group grievance in which the griever
and others asked for a correct PDF that reflected their actual duties.
Employer counsel noted that in the employer's response to the grievor's January
1998 grievance Ms. Wilson referred to the development of a revised job description that
24
listed the griever's current duties and responsibilities. She submitted that the union had
not challenged Ms. Wilsen's assertion in this regard until the hearing in this matter.
Employer counsel also rated that in her May 1998 grievance the griever had asked for
retroactive pay to November 1996 when restructuring occurred. She submitted that the
griever's evidence about her duties remaining unchanged and her routinely performing
all efthe duties efthe 1994 PDF was unreliable.
Employer counsel noted that at the hearing before Arbitrator Hunter Ms. Ford had
argued that the case should proceed on the basis efthe 1994 PDF but did not assert that
Ms. Groom had been doing the 1994 PDF duties. She submitted that Arbitrator Hunter
had decided the issue of which PDF reflected the actual duties being performed and this
arbitration board should follow his decision. She contended that based on the principle s
of res judicata and estoppel this board of arbitration should adopt the same approach as
Arbitrator Hunter.
In her reply submissions employer counsel disagreed with union counsel's
interpretation of the griever's notes respecting her January 23, 1998 meeting with Ms.
Keziel. She pointed out that when the griever wrote her notes dated April 27, 1998 she
was rated as a Clerk D at payband 8. She also pointed out that a few days later on May
4, 1998 the griever filed a grievance with respect the rating efher records clerk position.
She argued that the griever's April 1998 notes did not support her claim respecting what
she was doing in January 1998 but rather related to her claim that she was
inappropriately classified in May 1998.
THE UNION'S SUBMISSIONS
As noted above, in his final submissions counsel for the union indicated that the
union accepted most of what the employer was alleging in terms of when the
restructuring occurred. He contended, however, that subsequent to the restructuring the
griever continued to be deployed throughout the office to numerous functions on an on
going and as needed basis. He submitted that if there had been a higher demand in one
area or if someone was absent then the griever would be used in that area. Union
counsel argued that this situation had continued into 1998.
Union counsel submitted that although in anticipation of a move away from the
generic PDF the griever made an election with respect to her primary work area she
continued to perform various duties as assigned and as required. He contended that the
best evidence of this was the griever's notes of her meetings with her manager. He
submitted that the griever's notes respecting her January 23, 1998 meeting with Ms.
Keziel reflected a conversation about the griever being required to perform a range of
duties. He argued that the notes of the March 23, 1998 meeting had reflected an
25
admission on the part of Ms. Keziel that the griever used to do work associated with
other functional areas of the office but this was to change. Union counsel submitted that
in her note of April 27, 1998 the griever stated that she was still under the generic PDF.
Union counsel contended that the employer had continued to make use of the
griever's experience and comprehensive knowledge of the office and her ability to
bounce around from job to job. He argued that the employer used the griever in this
manner in contravention efthe job classification system and she should have been paid a
higher amount as a result.
Union counsel described the employer's position as being that in order for the
griever to succeed she had to routinely be performing all of the duties of the generic
PDF. He argued that this was not the issue at this stage of the proceedings. He said that
the issue is whether the employer can prove that the griever was in the same records job
that was ruled on by Arbitrator Brent. He argued that based on the griever's evidence
and her notes of January 23, March 23 and April 27, 1998 the employer had been
transitiening her out of the generic PDF and making use of her in a manner not reflected
in her classification.
Union counsel contended that a large part of the problem faced by the employer is
that on the employer's own evidence the griever did not have an accurate or up to date
job description for over two years. He said that the employer was saying that the
restructuring occurred in November 1996 but there was no PDF until 1998. He argued
that in these proceedings the employer was seeking to rely on its own failure to maintain
up to date job descriptions.
Union counsel contended that it was always the grievor's position that she was
performing the duties of the generic PDF on an as needed basis rather than doing all of
the functions every day. He said that this explains why the April 16, 1998 memo
assigning her to graduation duties did not free her up from duties relating to fees
etcetera.
Union counsel argued that the grievor's evidence demonstrated that when she
signed the May 1997 group grievance her concerns had been different from those efher
colleagues. He contended that the griever was concerned that she was the only
employee bouncing from area to area. He said that although other employees were
having the range of their duties reduced she was not and this was why she signed the
grievance.
Union counsel submitted that the employer had not proven that when the griever
filed her grievance in January 1998 she was performing the duties of a job description
that had not yet come into existence. He argued that the griever was not in the records
26
position as such but rather had been doing the duties of the generic PDF. It follows, he
contended, that Arbitrator Brent's award was not applicable to the grievor's situation in
January 1998.
Union counsel contended that the facts of the instant case are similar to those in Re
George Brown College and OPSEU (Bruno et al.), a March 19, 1993 decision of a board
of arbitration chaired by R.H. McLaren. A group classification grievance relating to 12
Training Consultants had previously gone before a single arbitrator pursuant to the
expedited arbitration procedure. After assessing various job factors in dispute, including
the factor of working conditions, the arbitrator rated the position as being two points
short of justifying a higher payband. In connection with a subsequent group grievance
brought by the same employees the union sought to present evidence concerning the
factor of working conditions before the arbitration board chaired by Arbitrator McLaren.
This included seeking to compare the position with other positions and explaining how
those other positions had been rated, a process not permitted under the expedited
process. The arbitration board held that since the grievance had gone the expedited
route it was not now open for the union to seek to put that type of evidence before an
arbitration board since the issue was res judicata. The union contended, however, that
subsequent to the earlier award there had been a material change in working conditions.
The arbitration board held that evidence respecting the alleged charge should be heard,
reasoning that: "If it is found that there is a material change then the principle of res
judicata does not apply. If it is found that there is no material change the matter is not
arbitrable being res judicata in both respects".
CONCLUSION
We do not view Arbitrator Hunter's decision respecting the January 26, 1998
grievance of Ms. Groom as being of assistance in these proceedings. It appears that in
that case the union argued in favour of using the 1994 generic PDF because it was the
PDF in place when Ms. Groom filed her grievance. The employer argued in favour of a
1998 PDF that resulted in Ms. Groom's position being retroactively reevaluated. Given
these two choices Arbitrator Hunter concluded that the 1998 PDF should be utilized. In
the instant case the union took a very different position than it took in the Groom case.
Here it argued that on January 26, 1998 the grievor was still performing the duties
outlined in the generic PDF. Arbitrator Hunter's award clearly did not address the issue
of what work Ms. Ford was performing in January 1998.
The grievor in her evidence consistently contended that in January 1998 she was
still performing the functions set out in the generic PDF. A difficulty with her evidence
is that because of the passage of time her memory was clearly faulty with respect to the
timing of events. This was demonstrated by her recollection of when the restructuring
27
had occurred. Certain of her evidence suggested that the restructuring did not occur
until 1998 whereas the restructuring was implemented in 1996. It is of interest that
when the griever filed her grievance of May 4, 1998 her recollection as reflected by the
wording efthe grievance was that the restructuring had occurred in November 1996.
At the hearing the griever advanced several explanations for having signed the
group grievance on May 29, 1997. The wording of the grievance, however, suggests
that those signing it were unhappy about having an incorrect job description, namely the
generic PDF, and they wanted PDFs that reflected what they were actually doing after
the reorganization. This is reinforced by Ms. Auger's step two reply to the grievance in
which she referred to the development of new PDFs and changes associated with
organizational restructuring.
In his submissions union counsel relied on the grievor's evidence and notes of her
1998 conversations with Ms. Keziel as well as the April 27, 1998 note in v&ich she
recorded certain of her views. The griever's recollection with respect to the conversation
on January 23, 1998 was clearly incorrect in some aspects. According to the griever Ms.
Keziel stated that she was trying to get senior people to move on the restructuring.
Staff, however, had been placed in positions by November 1996. Further the griever's
notes suggest that what Ms. Keziel had been referring to were difficulties she was
encountering in getting senior management and Human Resource staff to meet with
respect to the new PDFs. Logically this included the PDF for the griever's position that
the employer finalized about two weeks later on February 4, 1998.
In her evidence respecting her meeting with Ms. Koziol on March 23, 1998 the
griever indicated that Ms. Keziel had suggested that once restructuring occurred and the
griever was bound by a new PDF there would no longer be an expectation that she
would bounce around. The griever's notes efthe discussion were somewhat ambiguous.
They clearly indicated that the griever had been moved about in the past. They did not,
however, reflect a clear statement on the part of Ms. Keziel concerning future changes
to the griever's job duties or that the griever was currently moving between functions.
The griever's note of April 27, 1998 recorded her view that she was "still under the
most 'generic' job description" and that Ms. Keziel had said she "knows she uses me
more than most because she doesn't want me bored". The 1994 generic job description
covered most employees in the Registrar's Office. The griever's reference to "the most
generic job description" suggests that she was complaining not about the single generic
job description that covered most employees in the Registrar's Office but rather about a
new job description for herself that she felt encompassed a wider range of duties than
did the new PDFs for other employees. This interpretation is reinforced by the fact that
about one week later, on May 4, 1998, the griever filed a grievance expressly
complaining about the new PDF for her position. We are satisfied that the griever's note
28
reflected her dissatisfaction with the scope efher role as set out in her 1998 PDF and not
a statement that she was still operating under the 1994 generic PDF.
Changes in the griever's job functions were reflected in the various computer print
outs. The batch reports indicate that as of September 1996 the griever was no longer
doing Continuing Education registrations. Her receipt of payments at the counter for
post-secondary students decreased subsequent to July 1996 and she did not perform this
task after November 1996 except for a few days during peak periods. Commencing in
March 1997 she started performing the function associated with her new position of
processing apprentice registrations. The applicant program criteria report indicates that
with one exception in January 1998 the griever ceased performing this function in July
1997. The VAX report indicates that in September of 1997 the griever ceased working
in the admissions area and began primarily doing records work. As pointed out by union
counsel in his questioning, it is possible that some functions were not picked up by the
various reports. Nevertheless it is clear that during 1996 and 1997 several major
changes occurred with respect to the griever's activities consistent with her ceasing to do
a full range of functions until she was left with only the functions of the records
position, including performing other functions during peak periods.
The griever's recollection was that with the move to E Building she had acquired
her own work station but continued to perform a range of non-record related duties. The
computer reports suggest that she was correct in this regard although her recollection
was faulty in terms of when she ceased regularly performing the full range of duties
listed in the generic PDF. The move to E Building appears to have occurred in May or
June 1997. He duties actually began to change in the fall of 1996 prior to the move.
Following the move she initially continued to regularly perform admissions functions.
Except for peak periods as contemplated by her new PDF, however, no later than
September 1997 the griever was working in the position that came to be covered by the
February 1998 PDF and which resulted in her position being rated at payband 8
retroactive to November 1, 1996. She was performing the duties of the position when
she filed her grievance on January 26, 1998.
As indicated in the 1993 George Brown College case, a second challenge to the
rating of a position when the same duties continue to be performed should not be
entertained. This case is unusual in that it was a later grievance in time that was ruled
on by Arbitrator Brent. Logically, however, the same reasoning applies. Arbitrator
Brent's decision addressed the duties that the griever was performing when she filed her
January 26, 1998 grievance. Accordingly it would be inappropriate for this board to
again address the proper rating for her pesitie n.
Having regard to the above, these proceedings are hereby terminated.
29
Dated this 14th day of October 2005
Chair
"Ron Hubert"
Employer Nominee
Dissent
With all due respect to the majority, this member must dissent.
Despite the fact that this case appears to have been before two sole arbitrators and a full
board panel, the merits of Ms. Ford's grievance have yet to be heard.
Ms. Ford, in her terminology was bounced from pillar to post during the restructuring of
the college. Her contention is that during the years it took to finally resolve the
restructure and reassignment of personnel, she did all the tasks associated with the
original (ge neric) j ob description.
Her ability and knowledge of the college systems allowed the supervisor the flexibility of
utilizing Ford's extensive experience, even to the extent that she was denied holidays.
It may well be that the special projects and constant reassignment to numerous areas may
attract the level of payband to which she has been assigned. That is precisely the area of
inquiry that should have been dealt with in this arena.
! would have so ordered.
All of which is respectfully submitted, Sherril Murray