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HomeMy WebLinkAboutMiller 91-05-23 IN THE MATTER OF A CLASSIFICATION ARBITRATION BETWEEN: OPSEU (hereinafter called .the "Union") - and - FANSHAWE COLLEGE (hereinafter called the "College") AND IN THE MATTER OF THE GRIEVANCE OF TIM MILLER Board of Arbitration: Belinda.A.Kirkwood,Arbitrator David Guptill, College Nominee Jane Grimwood, Union Nominee Appearances for the Union: Peter Lukasiewiecz Jean Crawford Tim Miller Joe Uniac Appearances for the Employer: Barry Brown Judy Mills Deshi Lawers Paul English The arbitration of this matter was heard at London on October 24, 1990, and on February 21, 1991. Page 2 ~ AWARD This grievance was initially presented to the chair as a sole arbitrator on October 26, 1990 as part of the expedited arbitration process. However, as the issues presented involved a "usage" argument, and evidence of job duties of a Caretaker C, which could not be resolved on the testimony of the grievor and his supervisor only, the hearing of the matter was adjourned. It was agreed that the matter be heard by a three person board and that the three .person board as constituted had jurisdictio~ to hear the matter. The parties agreed that the grievor was representative of all the Caretaker Bs who were working on the afternoon shift at the College. The grievor claimed that he was improperly classified as a Caretaker B (Payband 2). He sought reclassification to the position of Caretaker C (Payband 3). retroactively from December' 21, 1989, and retroactive payment for the difference in his salary, together with interest, benefits, and an adjustment of his seniority in accordance with these changes. The parties agreed, that at the time the grievance was filed the Position Description Form (PDF) was inaccurate. The ?DF has since been revised on January 10, 1990, January 19, 1990 and finally on March 7, 1990. The Union agreed that the PDF as revised on March 7, 1990 accurately described the grievor's position, but was incomplete. The Union's counsel's first argument was based in principle upon the "usage" argument. He submitted that with the exception of the lead hand duties performed by the Caretaker C, the grievor performed substantially the same duties as the Caretaker C and therefore the grievor's position ought to be rated with the same core points as the Page 3 Caretaker C position. The Union's counsel submitted that the lead hand was designated by management at its discretion and was paid a premium in accordance with article 7.6 of the collective agreement between the parties~. Therefore, he submitted that the lead hand duties listed in the PDF were not an appropriate consideration in the classification of a position. The College's counsel submitted that this Board cannot consider the accuracy of the Caretaker C's PDF as the Caretaker C was not grieving his classification. He submitted that the Board's jurisdiction is confined by the collective agreement to determine whether the grievor's PDF is accurate, and to determine whether the grievor is properly classified according to the CAAT Support Staff Job Evaluation Manual and the Board does not have any jurisdiction to remove any duties from the Caretaker C position. The College's counsel submitted that the CAAT Support Staff Job Evalhation Manual 'provided a typical description of the grievor's job and therefore the grievor was properly classified as a Caretaker B. The evidence included the testimony of Paul English who was a Caretaker C, the testimony of the grievor, the PDF of the Caretaker C and the Caretaker B, and the CAAT Support Staff Manual. There was no material dispute over the Caretaker C's duties. The grievor worked as a caretaker on the first two floors of D block during the evening shift. The nature of the grievor's tasks were as Stated on his PDF and as corroborated by his own testimony: to clean by scrubbing, stripping, waxing, and shampooing carpeted areas, collecting and disposing refuse, moving furniture, cleaning lights, window, doorways and maintaining supplies. Page 4 The grievor had the master key to all doors in the school except for those to the President's office and the equipment room, and he ensured that the doors to the Music and Industrial Arts rooms remained locked, and ensured the safety and security of the offices. He reported any vandalism and damage, and any necessary repairs to equipment, however caused. The grievor also opened and locked the classrooms that were needed.each night in accordance with a schedule. The grievor testified that as he had held the job since January 2, 1987 he was knowledgeable about procedures and could resolve problems such as advising teachers what to do if the classrooms were double-booked. Paul English worked on A block and had the same cleaning duties as the grievor, but he also was responsible for lead hand duties, and assigned work to others, and reviewed the quality of their work, although not in the presence of the other members of his working group. In addition, he did minor repairs to equipment. The points conferred by both parties to the elements of the grievor's position on the Arbitration Data Sheet, were as follows: Elements Management Union Rating Points Rating Points Job Difficulty A1 30 B2 75 Guidance Received A1 20 A3 54 Communications A1 15 A1 15 Knowledge/Training/ A1 18 B1 28 Experience Knowledge/Skill 2 21 2 21 Working Conditions/ D5 33 D5 33 Manual Page 5 Working Conditions/ A5 3 A5 3 Visual Environmental C5 21 C5 21 Total Points 161 250 Payband Number 2 3 The particular elements of the job which were in dispute were Job Difficulty, Guidance Received and Training/Experience and its application to the core point rating. ~he core point rating of these elements were as follows : Elements Management Union Rating Points Rating Points Job Difficulty A1 30 B2 75 Guidance Received A1 20 A3 54 Knowledge Training/Experience A1 18 B1 28 Our jurisdiction is specifically circumscribed in' article 14.4.5.2 of the collective agreement to a) determine whether the grievor's PDF accurately reflects the assigned job and b) to determine whether the grievor's job is properly classified pursuant to the CAAT Support Staff Job Evaluation Manual. The CAAT Job Evaluation Manual sets out the three categories of Caretakers, A, B, and C. It is a guide to the classification of positions and is meant to cover a broad spectrum of duties, which will be performed with different emphases in different situations. It is used to bring uniformity to the classification of various positions, which in themselves may be performed by the individual in different Page 6 ways. Accordingly, our purpose is to analyze the job duties and the responsibilities of the position and not to assess and classify the position on the particular expertise of the grievor. The CAAT Job Evaluation Manual distinguishes the categories of caretakers by increasing duties and responsibilities as it progresses from the Caretaker A to the Caretaker C position. The Caretaker B performs the duties of the Caretaker A and the Caretaker C performs the duties of the Caretaker B and A and has further additional duties and responsibilities. The "usage" argument asserts that employees who are performing substantially the same work are to be treated in the same manner. Therefore if the grievor were performing sUbstantially the same duties as the Caretaker C, he would be improperly classified according to the CAAT Support Staff Job. Evaluation Manual. Therefore, if the grievor and the Caretaker C, as seen through the evidence of Paul English and his PDF, were performing substantially the same job, the core points that are attributable to Paul English as a Caretaker-C would then be applicable to the grievor. However, in order to apPly this concept, we must compare the two jobs, and the' work performed by both employees in their entirety. We cannot disregard certain aspects of the job, otherwise the two positions would not have the same functions and the same responsibilities and as a result, may have ~ifferent core point ratings. We find that both the grievor and Paul English had the same cleaning duties. Page 7 In addition to the grievor's cleaning responsibilities, the grievor removes furniture and sets-up furniture as required for special functions and meetings, at the direction of his lead hand, another Caretaker C, but unlike his lead hand he cannot leave the campus without a lead hand. The grievor also reports if equipment needs to be repaired, but he does not recommend repairs and purchase of equipment. The grievor ensures that the classroom areas are available for the night classes, and locks them at the end of class. This task was not part of his PDF, but was his responsibility. Although the grievor has to be aware of security, security was not his responsibility. Although he has the master key which allows him access to all offices except for two, the key is to allow him access for the purpose of cleaning and not to allow or control access to the rooms by other persons. He has to direct unauthorized persons to security. Nor does he have responsibility for the security of the outside doors to the building. Similarly, it is his experience and initiative which enables him to resolve problems such as double-booked classes, but it is not a duty nor responsibility of the position. Paul English testified that in addition to his cleaning duties, he had lead hand duties, duties to assign specific tasks to members of his work group, and he can priorize the tasks'to be performed by the members of the group. He has the responsibility to review the quality of the work done by the group, although he reviews their work without their knowledge. He has to ensure that the members have supplies to do their work, and he makes minor repairs Page 8 and recommendations for the repair of equipment. He also has duties relating to security of the buildings. We must accept the PDF as it is presented and as performed by Paul English, as a Caretaker C. We cannot carve out certain duties from the PDF, nor consider them as not performed by Paul English. A characteristic which has been agreed to by the parties in the CAAT Support Staff Job Evaluation Manual, which distinguishes the duties and responsibilities of a Caretaker C from a Caretaker B are the lead hand duties, as exemplified in the statement that the Caretaker C "provides direction and guidance to junior caretakers." Although there is a provision in the 'collective agreement for the payment of a premium if lead hand duties are performed, the payment does not effect the content of the position. The payment only creates an entitlement to premium pay if a person is appointed as a lead hand at any time by management, in its discretion. Paul English has a leadership role and works with a group as a lead hand, while the grievor, is not responsible for any other person other than himself and has no lead hand duties. These duties in themselves set the grievor apart from the Caretaker C. Therefore we find that although the grievor performs a few tasks which the Caretaker C performs, some of which are assigned, as unlocking and locking classrooms, and moving furniture, and others voluntarily performed as a result of his conscientiousness, a notable difference between the two positions is the role of the lead hand. As we find that we cannot ignore part of the duties performed, the Page 9 grievor does not perform substantially the 'same tasks as the Caretaker C and does not share the same responsibilities. We must now consider whether the specific areas of the job which are in dispute affect the classification of the grievor's position. JOB DIFFICULTY Both the components of Complexity of the job and Judgement required for the job were in issue. The Union's counsel submitted that the Judgement necessary for the job is best placed at level 2 as the grievor must use some judgement or choice of action in tasks such as priorizing work, selecting the specific tasks to be done and choosing the chemicals and method of cleaning. Level 2 is described as: Duties performed require some judgement, or choice of action within limits. Some analysis is required. The College's counsel submitted that level 1 properly describes the judgement as the grievor is directed on how to, and when to, .perform his duties. Level 1 states: Duties performed require little or no judgement. There is normally no need for analysis or problem- solving. The UnionJs counsel submitted that the Complexity of t~e job was described by the B Category of the Job Difficulty Matrix, which states: Work involves the performance of specific tasks that involve related steps, process, or methods. Page 10 , The College's counsel submitted that the complexity of the job is best described by Category A as follows: Work involves the performance of specific routine tasks that are straightforward and repetitive in nature. There is little judgement required by the grievor in the performance of his duties. Although the grievor did not agree that the Caretakers' Reference Manual as produced at the hearing was not the reference manual that he had been given, he agreed that he had been given two other manuals, which we will also.call the Caretakers' Reference Manual, to be used by him for his reference. He agreed that the manuals that he had been given set out the nature of the work to be performed, the manner in which it had to be performed and the frequency and the priorization of the tasks. As most tasks were directed by the Caretakers' Reference. Manual to be performed on a daily basis, and major or specific tasks were assigned by the lead hand, the grievor needed to use little judgment and had little choice and over the tasks to be performed. The grievor had to exercise little judgment in choosing the chemicals for his heavy duty cleaning, such as stripping and waxing floors, as the nature of the chemicals given to the grievor were such that the chemicals related to a specific task, and the manuals determined what had to be done. The grievor was not responsible for recommending or selecting chemicals. Therefore we find that the judgement required for the grievor's job is described by Level 1 on the Job Difficulty Matrix. Any task can be broken down into a series of steps: however, "complexity" connotes a number of parts in various Page 11 degrees of subordination. It involves an assessment of the degree of complication. Most of the grievor's tasks are done on a routine basis, whether they be daily, weekly or monthly. The removal of refuse, dust mopping, damp mopping are done daily and are straightforward and repetitive in nature, while some of .the maintenance of the floors is done less frequently. Although the grievor is responsible for the maintenance of floors which can be considered as involving a number of steps, the work must be looked as' a totality. Th~' act of cleaning with a chemical or stripping a floor, is a different task from waxing the floor, but it follows the same process of applying a chemical, although the effect of the application of the chemical is different. The chemicals are premixed and the manual prescribes the methodology, which is not complex. Therefore we find that Category A describes the grievor's job. By application of the core point rating to the resulting A1 category, 30 points are to be allocated to this category. GUIDANCE RECEIVED There was no dispute between the parties over the Guidelines Available to the grievor, but the parties disagreed over the Nature of Review. The Union argued that level 3 was applicable which states: Work assignments are intermittently and or periodically checked for quality. Page 12 The College argued that level 1 was appropriate, which level states: Work assignments are checked in progress and on completion by supervisor for completeness and accuracy. The CAAT Support Staff Job Evaluation manual specifically identifies the lead hand as one whD passes on supervisor's instructions to members of a work group, explains new projects and assignments, but is not a supervisor. In practice, there was no supervisor on the grievor's shift, and the grievor's lead hand only conveyed specific instructions to the grievor. The' gri~vor was unaware of any supervision of the quality of his work at any time during his shift. The only time when he became aware of any review was if there had been a specific complaint, at which time the lead hand would draw the complaint to the grievor's attention. As there was no evidence of any systematic review of the grievor"s work, and as there was no evidence of review by a supervisor we find that level three is descriptive of the nature of review given to the grievor's work. Therefore the core point rating to be applied is 54. KNOWLEDGE/TRAINING/EXPERIENCE Both parties agreed that Level 1 is appropriate which states: Required skills normally acquired through completion of elementary school education or equivalent. The Union's counsel submitted that up to one year of practical experience is required and therefore category B is applicable. Page 13 The .College's counsel submit'ted that little or no practical experience is required. Our role is to consider what is the minimum experience that is required to perform this job. Although little or no experience may be required to perform the simplest tasks, such as the dusting and damp mopping, greater knowledge is required to use the chemicals and solvents that are necessary for the various cleaning functions. It requires experience with various chemicals to know and understand each one's capabilities and the effects of the solvents and chemicals on various surfaces. Specific knowledge which can only be gained by experience is also required to remove stains from various surfaces. In addition, experience is required in order know the proper way of sealing new floors and maintaining them. Furthermore as the job must be performed without any supervision, the grievor is unable to rely upon another for direct assistance and therefore must rely on his own experience. Therefore we find that up to one year of practical experience is required for this position and by the application of the knowledge Matrix, 28 points are to be attributed to this category. Therefore we find that the PDF of March 15, 1990 is accurate with the exception that it does not include the grievor's responsibility for locking and unlocking classrooms. In summary, after reviewing the areas in dispute we find that the Job Difficulty must be rated at A1 with a core point rating of 30, Guidance Received must be rated at A3 for a core point rating of 54 and Experience/Training must be Page 14 , rated at B1 aG a core point rating of 28. As a result that the grievor's core point rating totals 205, which points place him in Payband 2 Dated at Toronto, this~ d~ay 0,~, 1991. B./A. K~i~rkwood-, Chairperson Nominee " I dissent" as attached J. Grimwood, Union Nominee Page 2 DISSENT I have read the AWARD of the Majority in this matter, and must respectfully disagree with the conclusion reached. The issue around which this case revolves is the rating of the position which the Grievor holds. The Majority has accepted certain of the Union's submissions, resulting in an increase in the rating from 161 to 208 points.' Unfortunately for the Grievor, 211 points are needed to push him from Payband 2 to ~ayband 3. (Payband 1 is from 151-210 points.) The major Union submission, however, which was not accepted by the Majority, is that dealing with the "lead hand" concept. The Collective Agreement,. in Article 7.6, states as follows: "Where the College determines that it is required, a Lead Hand may be designated within a work group, giving due consideration to the, ability, qualifications required for the position and seniority, in making the appointment. Where the College assigns an employee to Lead Hand responsibilities, the employee shall be entitled to a premium in the amount of seventy-five (75) cents per hour over his/her then current classification rate for all hours worked during such assignment." As can be seen, a premium of 75¢ per hour is given to the employee. The Union's submission was this: if the discretion to designate someone as a Lead Hand rests with the College, based on certain criteria, and for which a premium is therefore paid, duties of such "Lead Hand" cannot be considered in determining whether the Grievor and Caretaker C (Paul English), are performing "substantially the same duties" (to use the words of the Majority). Or, put another way, after carving out Lead Hand duties and responsibilities, are the 2 employees doing the same or substantially the same thing? The Majority. has not specifically answered this question, but by implication, the answer appears to be "yes". Their approach, however, is to state: "As we find that we cannot ignore part of the duties performed, the grievor does not perform substantially the same tasks as the Caretaker C and does not share the same responsibilities." (pp. 8-9) Page The "part" referred to supposedly refers to Lead Hand duties, which are obliquely referred to in the CAAT Support Staff Job Evaluation Manual, which states, "Provides direction and guidance to more junior caretakers." The Majority has ignored, unfortunately, the boldface WARNING at the beginning of the Rating Document. NOTE TO RATERS: Evaluation ~riteria drawn from the matrices describing particular classifications are general statements which may or may not have total applicability to a particular classification. A clearer statement of the intention of the parties could not be made. The Majority has therefore erred~ (i) in describing these duties as Lead Hand duties; (ii) in determining that their inclusion in the Manual "in themselves set the grievor apart from the Caretaker C"; (iii) in ignoring the ambiguity in the Collective Agreement as it relates to Lead Hand duties; (iv) in failing to find that the CAAT Manual is a Guide only; and (v) in failing to find that the grievor and Caretaker C performed substantially the same duties. I would have allowed the Grievance.' Dated in Toronto this 14th day of May, 1991 J~ne/Grimwood, Union Nominee