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HomeMy WebLinkAboutKuca 05-11-30 IN THE MATTER OF AN ARBITRATION BETWEEN GEORGE BROWN COLLEGE (the "College") AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION, Local 557 (the "Union") RE: Grievance of Laura Kuca BOARD OF ARBITRATION: MICHEL G. PICHER - CHAIR SHERRIL MURRAY - UNION NOMINEE ANN E. BURKE - COLLEGE NOMINEE Appearing for the College: Frederick G. Hamilton, Q.C. - Counsel Dave Ivany - Manager, Labour Relations Appearing for the Union: Steve Lavender - Grievance Officer Don Wright - Steward Laura Kuca - Grievor A hearing in this matter was held in Toronto, Ontario on June 21, 2005, and written submissions were completed on July 21,2005. AWARD This arbitration concerns the individual grievance of Ms. Laura Kuca. There is no Union of policy grievance before us. Her grievance, dated March 5, 2004, notes that she is classified as a Programmer Analyst C in the Information Systems Department, within the bargaining unit of support staff employees. The grievance states, in part: The College has violated my rights under article 3.1, 7.2 and any other applicable articles in that College has failed to manage in a manner consistent with the provisions of this Agreement with respect to providing a current position description and corresponding classification. With respect to remedy the grievance requests: That my correct position description be the position description referenced in the email of December 24, 2003 from Steve Hedsen, former Acting Manager, ITS Systems Development. The College raises a preliminary objection as to the arbitrability of the grievance. Its position is two-fold: firstly, its counsel submits that the grievance and the supporting submissions of the Union do not disclose a prima facie case of any violation of the collective agreement, so that in effect there is no tis to be resolved; secondly, in the alternative, if the griever has a complaint, it is in the nature of an objection to her classification, a matter which is not properly before this Board and which should proceed before the board of arbitration established for that special purpose under the collective agreement. Certain facts pertinent to the grievance do not appear to be challenged. The griever, hired in 1981 as a computer programmer, progressed to the position of 2 programmer/analyst in 1984. According to counsel for the Union, the grievor's duties changed over time and became considerably more complex in or about the period of 2002-2003. In the griever's view, by December 2003 her Position Description Form (PDF), a document used within the College's classification system, was no longer an accurate reflection of her duties and responsibilities. The griever then discussed the new PDF with her then acting supervisor, Mr. Steve Hedsen. It appears that it was then that the content of a revised PDF was effectively agreed to between the griever and Mr. Hedsen. Under the College's procedures for a classification, once the content of a PDF is determined by an employee's managers, it is then sent to the human resources department for classification. In the instant case, the draft PDF was apparently not signed by the griever, her supervisor or Mr. Hedsen's supervisor, chief information officer Yves Hebert. It is common ground that the PDF was never progressed before the classification committee and was never further acted upon. It is also not disputed that in or about February 2004 Mr. Hodson ceased to be the griever's acting supervisor and that her new permanent supervisor, Mr. Alfred Carr, took over responsibilities. The Union alleges that Mr. Carr substantially changed the griever's duties within a period of one or two months and drafted a new PDF which he presented to the griever in April, 2005. It appears that the changes to the griever's duties and responsibilities by Mr. Carr are the subject of a separate grievance, dated June 3, 2004, a matter which is not before this panel. VVhat the Union seeks from this 3 Board, is a declaration that the PDF discussed between the grievor and Mr. Hodson is the PDF properly in place for her and that the classification process must be completed accordingly. Effectively, the Union seeks a determination that the grievor was to be classified in accordance with the "Hodson PDF", at least for the period until such time as her duties were altered by Mr. Carr. Counsel for the College points to the College's step 3 reply in the grievance procedure as a reflection of what transpired. Essentially, according to the College, what Mr. Hodson did was to forward an unsigned draft PDF to the HR department for "review" rather than for actual processing through the classification committee. The suggestion is that the document would be reworked based on the advice given before ultimately being processed through the formalities of the classification process. VVhile the College acknowledges that there was some undue delay in the processing of the grievor's request for an updated PDF, it did not at step 3 and does not now agree to treating the draft PDF prepared by Mr. Hodson as a final PDF for the purposes of reclassification. Quite apart from the facts, either agreed or alleged, counsel for the College submits that there is simply no basis for a grievance in the case at hand. He submits that there is no provision in the collective agreement which deals with the revising of a PDF, much less any provision which would compel the College to comply with an employee's claim that it must classify an unsigned PDF. 4 Counsel for the College also questions whether the Union's request for the disclosure of documents made before this panel is in effect a fishing expedition to support or substantiate other grievances filed by Ms. Kuca. In that regard he notes that in 2004 the grievor filed some eight grievances, including the grievance before this panel, one of which apparently alleges improper classification. In reply to the submissions of counsel for the College, counsel for the Union maintains that what is before us is not a classification grievance, but a grievance properly filed as a general grievance concerning the "interpretation, application, administration, or alleged contravention" of the collective agreement. Counsel submits that in essence what is in dispute in this case concerns the interpretation, application, administration or alleged contravention of the collective agreement as contemplated in article 18.8.1 of the collective agreement which reads as follows: 18.8.1 Referral to Arbitration In the event any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing grievance procedure, the matter shall then, by notice in writing given to the other party within ten (10) days of the date of receipt by the grievor of the decision of the College's Official at Step No. 3, be referred to arbitration as provided. Counsel for the Union then refers the Board of Arbitration to those parts of the collective agreement dealing with "classification grievances", a form of grievance which admittedly goes before a specially constituted arbitration panel. Article 18.4 deals with classification grievances and provides in part, as follows: 18.4 Classification Grievances 5 18.4.1 Grievance to College Official An employee who claims his/her assigned job is improperly classified and that he/she should be properly classified to another classification named in Appendix E(i) or should be classified as an atypical position may present a grievance in writing to the College official designated responsible for classification grievances. The written grievance must specify at least the job family and payband claimed by the employee to be appropriate. VVhere the employee is claiming he/she should be classified in an atypical position, the written grievance must specify the payband requested and must specify the job family where appropriate. Article 18.4.3 of the collective agreement provides the process by which unresolved classification grievances are to be arbitrated. It reads: 18.4.3 Expedited Arbitration VVhere the grievance has not been resolved, it shall proceed as herein provided: 18.4.3.1 Arbitrators Any matter so referred to arbitration, including any questions as to whether a matter is arbitrable pursuant to this process, shall be heard by one of the following specially trained Arbitrators: G. Brent R. McLaren J. Devlin K. O'Neil I. Hunter I. Springate B. Keller L. Tenace The Arbitrators shall be assigned either by agreement or failing agreement, by lot. The parties may from time to time by mutual agreement add further names to such list. All Arbitrators so added shall undergo a training session on the Classification/Point System, to be jointly developed and presented by the parties, and all current Arbitrators shall 6 undergo reorientation to the Classification/Point System every two (2) years. As noted by counsel for the Union, the jurisdiction of the classification arbitration panel is circumscribed in the following terms at article 18.4.5.1 of the collective agreement. It reads: 18.4.5.1 Restrictions The single Arbitrator or Arbitration Board is restricted to determining whether the griever's PDF accurately reflects his/her assigned job content (where disagreement exists) and to determining whether the griever's job is properly classified pursuant to the CAAT SUPPORT STAFF JOB EVALUATION MANUAL. Upon a review of the submissions of the parties and of the provisions of the collective agreement, this Board of Arbitration is compelled to conclude that the substance of the grievance before us concerns the content of the griever's PDF and is properly to be characterized as a classification grievance. Counsel for the Union seems to characterize the dispute between the parties as relating to the existence of a PDF for Ms. Kuca. He notes that article 18.4.3.4 of the collective agreement includes a PDF supplied by the College as a document to be provided to the classification arbitrator. Counsel then suggests that the existence or identification of the proper PDF is a matter preliminary to and outside the classification process, a matter properly before a grievance arbitration panel such as we are. Implicit in the Union's submission is the argument that an employee who seeks to have a revision to his or her PDF is entitled to have a draft PDF which has been agreed in principle by her supervisor to be fully 7 processed through the classification committee. However, there is no provision in the collective agreement which would sustain any such right. Article 7.2 of the collective agreement deals with classifications and specifically refers to an employee's Position and Description Form or PDF. Article 7.2 provides as follows: 7.2 Classifications Classifications shall be listed in Appendix E(i) of this Agreement and the various grades or levels within a family of jobs (for example, Clerk A to D, General) shall each be a separate classification. 7.2.1 Atypical Position An atypical position is a position within a job family which is given a core point rating which places the position on a pay band not occupied by a classification within that job family or is a position which has no job family in Appendix E(i), appropriate to the duties and responsibilities assigned. 7.2.2 Position Description Form Each employee will be provided with a copy of his/her Position Description Form (PDF). 7.2.3 Classification Information Upon written request by the employee the College will indicate in writing whether the employee's position is a guide charted or core point rated position and if the position is core point rated, given the core point rating by factor for the position within ten (10) days of receipt of the written request. 8 As can be seen from the foregoing, the PDF is a document of obvious importance as it bears centrally on the classification and payband placement of an employee. As can be seen from the provisions of article 18, there is ample scope within the collective agreement for an employee to challenge the appropriateness of his or her PDF and related classification placement. Once such a challenge is made, it is only a specialized board of arbitration which then deals with the accuracy or inaccuracy of the PDF which is outstanding for a given employee. If the PDF is found to be inappropriate, a single arbitrator or arbitration board designated under the classification grievances provisions can determine whether the employee's PDF is or is not an accurate reflection of his or her assigned duties and can determine whether the individual's job is or is not properly classified. There is no dispute before us that a PDF exists for the grievor. It is precisely that PDF which she seeks to have changed, at least for the period of her employment under the supervision of Mr. Hodson. For reasons it best appreciates, the College has declined to act further on the draft PDF sent by Mr. Hodson to the Human Resources Department. As noted above, the Union can point to no provision of the collective agreement which places an obligation upon the College to process a particular request for altering an individual's PDF. Simply put, an employee who is dissatisfied with his or her Position Description Form can grieve under the classification provisions of the collective agreement. To allow the grievor to grieve before this Board of Arbitration, and to effectively seek to obtain directions that a draft PDF should be fully considered by the classification committee is, with respect, to invite this Board to infringe on the area of 9 jurisdiction reserved exclusively to the classification arbitrators named under this collective agreement. In this grievance the grievor seeks to separate process and substance, arguing that it is for this Board to direct the completion of the process and order the completion of a PDF. That is clearly the very kind of question intended to be dealt with by the specialized classification arbitrators. On what basis, should a board of arbitration with proper jurisdiction over general grievances, excluding matters of PDF content and classification, insert itself into the PDF and classification process? If the griever is not content with the unrevised PDF which presently governs her employment, she has every right and opportunity to grieve that matter properly under the collective agreement and to have the question of the accuracy and sufficiency of her PDF ruled upon by a properly constituted and specialized board of arbitration. That is the true substance of this grievance. Most significantly, how the process of revising a PDF is to be handled is simply not addressed within the terms of the collective agreement, and we are directed to no provision, other than the general management rights under the terms of article 3 of the collective agreement, to ground any substantive violation of the griever's rights. Placing Ms. Kuca's case at its best, she seeks to achieve indirectly before this Board of Arbitration that which she should be seeking to achieve directly before a board of arbitration fully seized with the issue of her PDF and the resulting classification of her job. 10 In the result, if the elements alleged by the grievor were proved, no violation of the substantive rights of Ms. Kuca under the collective agreement would be established. Alternatively, the true issue which underlies this grievance, which is the dissatisfaction of Ms. Kuca with her current PDF, is a matter which is beyond the jurisdiction of this Board of Arbitration, and should properly be heard by the specialized panel of classification arbitrators established by the parties under the collective agreement. In the result, for these reasons, we find and declare that we are without jurisdiction to hear the grievance, and it must be dismissed. Dated at Ottawa, this 30th day of November, 2005. "MICHEL G. PICHER" CHAIR "Sherril Murray" Union Nominee "Ann E. Burke" College Nominee 11