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HomeMy WebLinkAboutMartin 05-09-06 IN THE MATTER OF THE COLLEGES COLLECTIVE BARGAINING ACT -and- IN THE MATTER OF AN ARBITRATION BETWEEN: SAULT COLLEGE - The Employer -and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION - The Union AND IN THE MATTER OF THE CLASSIFICATION GRIEVANCE OF KEVIN MARTIN OPSEU GRIEVANCE #2003-06-1215 BEFORE: Kathleen G. O'Neil, Chair John Podmore, College Nominee Sherrill Murray, Union Nominee APPEARANCES: For the union: Gavin Leeb Jennifer Rennison, Local President Wendy Hnatchuk, Steward Kevin Martin, Grievor For the Employer: Lynn Thomson, Hicks, Morley Janice Beatty, Vice President, Human Resources Lanie Carasuolo Brenda Rooney A hearing was held in Sault Ste. Marie, Ontario on April 4, 2005 DECISION This decision deals with a remedial question related to the classification grievance of Mr. Kevin Martin who has been working as the College's Network Technologist since 1992. The parties have agreed that the position should be paid at Payband 14, that the College will pay retroactivity back to April 1,2002 and that the only remaining issue for the panel is whether the grievor should have been placed at the maximum or the minimum of the wage grid of Payband 14. Facts The grievor was classified as Technologist C, Payband 11 in January 2002 when his supervisor approached him to review his classification to see if it was in the correct payband. A series of meetings related to the review of his Position Description Form (PDF) followed. As he was not satisfied with be outcome, he filed this grievance on April 29, 2003. In the summer of 2003 a revised PDF was agreed to and was referred to the joint evaluation committee for payband determination, as a result of which the grievor was reclassified to Payband 12, retroactive to April 1, 2002. The grievor was satisfied with the date, but not with Payband 12, so the dispute continued on, and a hearing was scheduled for the fall of 2004 before Arbitrator Devlin under the expedited procedure. This was adjourned on consent to allow for a full Board of Arbitration to be struck. In November 2004, the employer raised the grievor to Payband 14, retroactive to April 29, 2003, the date of the grievance. At the outset of the hearing, it was agreed that retroactivity would be paid to April 1, 2002, leaving his correct placement on the grid as the only issue to be resolved by this panel. The grievor gave evidence that he started with the College in the spring of 1990 in a support position at Payband 9, and progressed into the networking job he now holds in 1992, looking after shared computer networks, servers and software, including network administration and troubleshooting for student networks. In his view, there were no changes to the duties, requirements, or qualifications for his job, either before the discussions that started in early 2002 or since. In cross-examination the grievor said he had certification obtained for purposes of doing backup for hardware and repair of technology in emergencies, which is renewed each year, on payment of a fee, without testing. He acknowledged that the field of computing is constantly evolving, and that he has had to keep on top of frequent changes to software, as well as less frequent changes in hardware. Part of his duties involves ensuring that changes in other areas of the College are integrated into the student services area. Similarly, he ensures that old and new hardware are maintained and incorporated into the student services for which he is responsible. In recent years additional technicians have been hired into the IT area, and the grievor serves as a resource for them. The grievor signed a PDF in 1998 for the same position. However by the time he filed the grievance in 2003, he thought that the PDF did not reflect the position accurately, and that the position was not evaluated correctly. Nonetheless, he maintains there had been no changes in the position since 1998; he classifies the difference in hardware and software he is now dealing with as a difference in tools, not lhe position. He agreed, however, that there was now more hardware, software, connections and interlinks within the college to deal with. However, it is the grievor's view that once a person has learned how to connect computers, doing three or thirty does not require additional knowledge or work. Concerning the amount of time on network issues as opposed to other issues, he ventured that he might be spending more time on internet and security issues than before. He noted that when he started in the networking job, software was minimal and mostly resided at the local workstation. Now 60-65 % is at the workstation, while the rest is on the server. In general, the grievor accepts that the area of information technology has perhaps gotten more sophisticated, and his knowledge has grown in his thirteen years in the job. But he is not of the view that his skills have developed considerably in that time. He underlined that what children can do today was very difficult five to ten years ago, and had to be invented. He has been part of that inventing over the years and has needed a well-rounded knowledge of each part of the computer system and in-depth knowledge of its operation. He agreed that increases in his knowledge and skills have been incremental through lhe years, as needs change and functionalities have been added. The College's witness was Peggy Storey-lnkster, Chief Information Officer for the College. She was the grievor's supervisor at the time of the grievance, was involved in the development of his PDF, and is familiar with his work. It was her view that the grievor's duties had changed in that there was increased complexity and planning required to perform his duties. As well, technology has evolved to a point where it is more complex, and the College is more dependent on it, both of which affect the environment in which the grievor performs his job. In 1995, when Ms. Storey-lnkster assumed the job of Director of Computer Services, she started working on the implementation of standards for hardware and software, in order to be able to stabilize the information technology environment, which was associated with less focus on day- to-day PC problems than before. By 2002, a level of stability had been reached which freed up more time to focus on network management and security concerns, making the work more proactive and less reactive. The impact on the grievor's job was that he was required to focus much more heavily on the planning and complexity of troubleshooting, and was more heavily involved in the College-wide infrastructure, being required to consider any network changes from a College-wide perspective and how to fit the academic portion into the overriding College umbrella. She acknowledged on cross- examination that it would be difficult to specifically pinpoint any major changes at the time of the discussions about the PDF in 2002; the position grew gradually in her view. She acknowledged that the grievor was a valued employee in the IT department, that he had the willingness and ability to take on more than the minimum duties of the job and that she had involved him in the IT restructuring report. Submissions and Conclusions The union's position is that placement should be from step-to-step, i.e. since the grievor was at the maximum of Payband 11, when his classification was raised, he should be moved to the maximum of the grid for Payband 14, rather than to the minimum step. By contrast, the College says the grievor was properly placed at Step 1 of Payband 14, relying on the wording of Article 17.2 of the collective agreement which provides as follows: 3 17 JOB POSTINGS/PROMOTIONS 17.2 Promotion/Reclassification 17.2.1 From a permanent Position An employee who is promoted or reclassified to a higher payband shall be paid the rate for the new classification which provides an increase of not less than the next wage rate step increase which would have been available to the employee in his/her former payband. Where the employee was receiving the maximum rate, the increase shall not be less than the difference between the maximum rate and the preceding rate step in the former payband. The new wage rate shall not exceed the maximum rate of the new payband. Also mentioned in argument were Articles 7.3.1 and Article 18.4.1, which read as follows: 7.3.1 Movement Through the Wage Steps Employees shall progress in accordance with the increments set out in the paybands as set out in Appendix E based on actual service in the classification. 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. Where the employee is claiming he/she should be classified in an atypical position, he written grievance must specify the payband requested and must specify the job family where appropriate. The union maintains that the limit on recovery set out in Article 17.2.1 applies where there has been a promotion or a change in job duties or qualifications which results in reclassification. However, where there has been a misclassification in the sense that an error was made in placing a job in its original classification, the union sees placement at the bottom of the new grid as a further penalty to the grievor who was underpaid for the whole period of misclassification. 4 The union underlines that a basic premise of the collective agreement is that progression on the wage grid is automatic, as long as an employee stays employed by the College. Since the grievor should always have been classified at Payband 14, the fact that he was not was a mistake. This has now been corrected, and full redress should include placement where he should have been if the error had not occurred, in the union's view. If he had been properly classified at Payband 14, by virtue of his years of service, he would now be at the maximum; anything less means he is not receiving full compensation. The union argues that there is no evidence as to a change in the grievor's duties, and that if there were changes of the magnitude necessary to warrant a reclassification of three Paybands, it would have been visible on the PDF, which is not in evidence. Further, union counsel notes that it is not even alleged that the changes were such as to require higher skill or qualification, which is consistent with the grievor's evidence that there were changes in the hardware and software, but not in the duties of the job per se. Union counsel drew the analogy to a lawyer who must constantly deal with changes to the law, by reading the new provisions, deciding how they apply and making any necessary changes in how his or her cases are handled. He argued that the changes in the law do not make the lawyer more of a lawyer. Applying the analogy to the grievor, counsel argued that he has learned and grown from the underlying skill base gained from his Bachelor of Science in computing. The collective agreement recognizes learning and growth that happens on the job by the increments in the salary grid. Union counsel argues that the strongest evidence from the College of any change in the job is of the stabilization of the computing environment, which Ms. Inkster placed in 2000 or 2001, while the grievor placed it eadier in 1998 or 1999. The evidence is that he was involved in performing the duties that brought about that stabilization, which it is argued should be taken as evidence that he was performing duties at the same high level then as now. The union says that the case boils down to the fact that the College now acknowledges that as of April 2002, his classification should have been Payband 14, and that the College should have to demonstrate that something has happened to bring the grievor into the exception of Article 17. 2. 1. As there is no evidence that there was any difference in the grievor's duties as of March 31, 2002 or any other date, we are asked to conclude that the reclassification was to correct the injustice that the grievor's pay was three Paybands too Iow for years and to put him at the maximum level where he would have been if he had been properly classified from the beginning. The union refers to a decision of Arbitrator Springate at Mohawk College, dated November 10,1990, dealing with placement on the grid after a successful classification grievance. At pages nine and ten, the decision identifies three reclassification scenarios as follows: An employee might have his or her job reclassified for one of several reasons. One is because the duties and responsibilities related to the job have recently been changed and the changes warrant a reclassification of the position to a higher level. Article 17.2 would apply to this type of situation. It will be noted that Article 17.2 deals with both promotions and reclassifications and is part of Article 17 which is headed up "Job Postings/Promotion". While a promotion generally involves an employee moving to a different and higher rated job, an employee can achieve much the same result when his or her current position is reclassified upwards in recognition of the fact that the duties and/or responsibilities associated with the job have changed. A second type of situation is one where the duties and responsibilities of a job have remained unchanged but it is now being re-classified as a result of a finding that the employer erred when originally classifying it. This type of situation is clearly covered by Article 18.4.1. To properly compensate an employee in such a situation requires that the employee now be paid what he or she would be receiving if the College had properly classified the job in the first place. Presumably in most cases this result would be achieved by placing the employee on the same progression step as he/she was already on but in the appropriate payband. A third type of situation involves a job which was originally classified correctly but which should have been reclassified in accordance with Article 17.2 as a result of a change in the duties and/or responsibilities associated with the position. If not reclassified in accordance with Article 17.2, the job will become one which is improperly classified. The instant case falls with the third category referred to above. The union submits that the case before us falls into the second type of situation, an error, which should not attract the application of Article 17.2.1. As well, counsel relied on a number of decisions for the proposition that the step-to-step approach is the one consistently adopted by various tribunals across the public sector, for example, decisions of panels of the Public Service Grievance Settlement Board (GSB), one chaired by N. Dissayanake, OPSEU (N~qhtingale) and The Crown in R~qht of Ontario 6 (Ministry of Correctional Services) GSB # 15/89, dated September 3, 1991, which found that in a situation where there were no material changes to the grievor's duties, step to step grid placement was the only way to make the grievor whole, and another chaired by J. Forbes-Roberts OPSEU (Sturch et al.) and The Crown in RLqht of Ontario (Ministry of Attorney General) GSB # 0611/86, dated March 23, 1989, where the reclassified grievors were not assuming more complex tasks, which might have justified starting at the bottom of the grid. Further, counsel referred to two decisions of panels of the Ontario Public Service Labour Relations Tribunal (OPSLRT), one chaired by M. Saltman, OPSEU (Psychometrists) and The Crown in R~qht of Ontario OPSLRT # T/0039/87, dated February 5, 1991 and another chaired by J. Ord OPSEU (Environmental Officers) and The Crown in R~qht of Ontario (Management Board of Cabinet) OPSLRT # T/59/87, dated September 5, 1990, both of which take the step-to- step approach to remedy. Union counsel also submitted that the title of Article 17, Job Postings/Promotions, should give the context in which the parties agreed to the wording of Article 17.2.1. The parties were turning their minds to job postings and promotions, not reclassification on consent or by order of an arbitrator. In the union's view, there is no indication in the language, read in context, that the parties intended the limitation in Article 17.2.1 to apply to the grievor's situation. Counsel submits that Arbitrator Springate's view that these cases are to be considered under Article 18.4 is correct and should be adopted by this panel. In general, counsel argues that there would have to be much more specific language to warrant a departure from the make-whole approach that is a first principle of providing full remedies, as noted by Arbitrator Dissayanake in the case cited above. Since the parties have not expressed the intent to deprive the grievor of 100 cents on the dollar in Article 17, the job posting article, it should not be applied in that manner. Since the grievor, who is in the best position to know, testified that the job did not change, 17.2.1 does not apply, and he should be placed at the top of grid. By contrast, the employer argues that the language of Article 17.2 is crystal clear, and that the placement of the grievor at the start rate is correct, being a direct application of that language. Employer counsel acknowledges that this case has not followed the normal path of reclassification as in Article 18.4, but submits that this fact should not affect the quality or nature of the application of the collective agreement language. Counsel notes that there is a considerable difference in pay between Payband 11 and 14, and that the grievor has already seen significant increases in his raises from Payband 11 to 12 and then to 14. In the employer's view, the grievance is a statement that the grievor thinks there is something wrong with his classification, whether as a result of a misclassification or reclassification. When that is fixed, Article 17.2. 1 applies, in the employer's view. In support of the employer's position, Counsel cited Sheridan College and OPSEU, Local 345 (Rhoden), (Brandt, sole arbitrator) dated December 13, 2001, which relies on a decision dated August 21, 1997 of Arbitrator Springate at the same College regarding the Schuster grievance, which took the approach sought by the College. There is no indication that Arbitrator Brandt had been provided with Arbitrator Springate's 1990 Mohawk College decision. In the 2001 Sheridan College case before Arbitrator Brandt, the union argued that the date of the PDF should indicate which article applied, so that if there were new duties at a certain date when the PDF was amended, it would be appropriate to apply Article 17.2.1, but if it was a job in which the duties had not changed, and it was found that the grievor had been improperly assigned to a classification, full recovery would involve step to step placement. Arbitrator Brandt found that although 17.2.1 did not explicitly deal with reclassification as a result of an award of an arbitrator, neither did it exclude it. He acknowledged that the idea that payment in the higher classification would be paid from the date the new duties were assumed might make sense, but found that there was nothing in the collective agreement which would allow him to confine the scope of application of Article 17.2.1 to those cases in which the position was an evolving one. Employer counsel emphasized in argument that the grievance on its face states that the grievor's PDF did not accurately represent the duties and responsibilities of his current position. Sometime after that the PDF was amended and he signed it. We are invited to find that this makes clear that the grievor was of the view that the original PDF did not accurately reflect his duties, while the new one did. Rather than supporting a conclusion that there were no changes in the duties, the fact that he agreed to some change in his position description supports a conclusion that there was a change in his duties, in the employer's view. More specifically, there is no evidence that there is no change from the first PDF to the second. Employer counsel submits that the only basis to find for the grievor is the very narrow opening in the 1990 Mohawk College Springate decision, in obiter, rather than in the specific basis for that decision. We are invited to find that more evidence and argument would be necessary to bring the case into that exception and to overcome the finding of Arbitrator Brandt that the approach suggested by the union might make sense but there was not a sufficient basis for it in this collective agreement. Further, it is submitted that the later 1997 Sheridan College Springate decision represents an adoption of the approach argued by the College. In sum, even if the job has not changed, there is insufficient reason to adopt the union's approach in the employer's view. In any event, the College's position is that the job has changed significantly over time, although it is impossible to pinpoint a specific date when it was in need of reclassification. Counsel notes that the griever agrees there have been some changes, which were mirrored by the evidence of Ms. Storey about the nature of the work. We are invited to find that the level of responsibility in the griever's job is significantly higher than it was at the beginning; the focus is different. He acknowledges the change in focus, individual computing at first, with smaller networking projects, lack of stability and different hardware and software. Now they are more focussed on building and planning for the future. Also things have evolved so that he is a "go-to" person because of his knowledge base and how it has evolved. Further, both witnesses agreed that IT changes daily, weekly, monthly. Counsel submits that this is more than ample evidence to find that the position has not been static since 1992. Moreover, employer counsel submits that even if the position had been static, the language of the collective agreement cannot be ignored in favour of decisions such as the GSB decisions cited by union counsel, in the absence of evidence of similar language that would indicate the government and OPSEU had turned their minds to what should happen in these circumstances. By contrast this collective agreement has extensive provisions and the cases, on balance, support the College's approach. In reply, union counsel urged great caution in using cases argued locally or in the expedited procedure with little or no reference to case law. He notes that there is not even a passing mention of the 1990 Mohawk College decision in the 1997 Sheridan College one, and that there has been no change in the relevant collective agreement language since. Given the competing views, we are urged to make a choice as to what makes the most sense, in order to afford a full remedy to the griever. At its most basic level, this case highlights a frequent problem in classification cases, which is the sometimes difficult necessity of distinguishing between the requirements of the job and the performance of the incumbent. A fundamental tenet of the job evaluation system agreed to by the parties is that it aims to evaluate the basic requirements set by the employer for the position, not the output of the most proficient or well-qualified incumbent. For instance, an employee possessing a doctorate employed in a job requiring a high-school diploma will not be paid at the level of a job requiring a doctorate, because that is not what the employer has required, even though the job may be performed at a much higher level by a more highly qualified or skilled incumbent. Further, an incumbent with particular talent may be hired for a job rated at a certain level, but perform at a significantly higher level throughout, such that the employer comes to rely on the position at the higher level, and eventually moves to reclassify the job, either on its own initiative or that of the union or an incumbent. In such circumstances, it is not surprising that the incumbent would think of the job as the same all along, while the employer would find the situation to have evolved. This appears to be the case on the facts of this grievance. If one looks at the job from the angle of what was being required of the position, it is clear that the position has changed since 1992. Neither party sought to prove its case on the basis of the provisions of the PDF or the changes to them, so that it is impossible to state at the level of the various evaluation factors and criteria of the Job Evaluation Manuel exactly where the changes lie. Nonetheless, and despite the fact that the employer's and grievor's view of the facts differ somewhat, it is very clear from Ms. Inkster's uncontradicted evidence that the networking position held by the grievor has been given a wider scope of responsibility than it had when the grievor started in it. It is important to underline that the differences in the points of view, literal and figurative, of the two witnesses are not the kind that would lead a Board of Arbitration to accept the evidence cf one and reject the other. Rather, they appear to be the product of two sincere accounts of differing work experiences. The grievor sees his job as a continuity, with changing tools and points of focus, but no identifiable change in the requirements of l0 the job. The employer, by contrast, sees a shift to reliance on the position to assume increased responsibility at the level of the College systems and for planning in a more complex environment, where information technology is not just an adjunct, but something on which the College depends. It is at this level that we find that the evidence supports a finding that the job has changed since 1992. We are not persuaded on the evidence that the job has been static, and that the College has always required of the incumbent of the networking position the same level of responsibility that it does now. It is clear that the change has been gradual, and no one could pinpoint a specific time at which the balance had tipped to the higher expectations for the position. Nonetheless both parties now agree, albeit for different reasons, that the position deserves to be more highly rated than in 1992. In circumstances where the job has changed, the cases cited to us which deal with the language of this collective agreement are all in support of the application of Article 17.2.1, such that the employer's approach should be upheld. In the words of Article 17.2.1, the grievor's job "has been reclassified to a higher payband". There is nothing before us which convinces us that the general approach taken in the College decisions cited to us is wrong or should not be followed by this panel in a case where the job duties have changed over time. As to the union's request that we choose between the different approaches taken b static jobs in the Mohawk College case and the Sheridan College cases cited above, it is not necessary or desirable to do so on the facts of this case. Since we have found that the requirements of the grievor's networking job have changed, we do not find that this case fits into the "error" category identified in the Mohawk College decision cited above. Errors can range from obvious typographical ones to much more subtle kinds, and where in the range a certain set of facts would fall could certainly affect what remedial relief was granted; thus it is best to leave the debate on the extent of such an opening to the facts of a future case. Concerning the cases from the GSB and the OPSLRT cited by union counsel, although we do not quarrel with the approach taken in those cases, they deal with different contractual language and are thus of more limited assistance than the cases from the College sector which deal with the same language. As well, some of the non-College cases involve findings of no material change in duties, which makes them distinguishable on the facts as we find them in this case. For the above reasons, although the grievance has been successful to the extent of the parties' agreement on the increased classification and date from which payment of retroactivity will be paid, the union's request for remedial compensation in accordance with step-to-step placement on the grid is dismissed. Rather the grievor is to be compensated in accordance with the scheme set out in Article 17.2.1. The panel will remain seized to the extent necessary to deal with any questions of implementation of the above decision that the parties are unable to resolve themselves. Dated this 6th day of September, 2005 "I dissent" Sherrill Murray, OPSEU Nominee "1 concur" John Podmore, College Nominee 12