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HomeMy WebLinkAboutGavin 90-01-31BETWEEN: FANSHAWE COLLEGE (The College) AND: ONTARIO PUBLIC SERVICE EMPLOYEES UNION (The Union) AND IN THE MATTER OF THE GRIEVANCE OF JANICE GAVIN, NUMBER 88B439 BOARD OF ARBITRATION: HOWARD D. BRO~, CHAIRMAN J. McMANUS, UNION NOMINEE R.J. GALLIVAN, COLLEGE NOMINEE APPEARANCES FOR THE COLLEGE: C.G. RIGGS, Q.C., COUNSEL INGRID HOBBS KEITH JOHNSTON APPEARANCES FOR THE UNION: T. HADWIN, COUNSEL AND OTHERS HEARINGS IN THIS MATTER WERE HELD AT LONDON ON FEBRUARY 23RD AND SEPTEMBER 25TH, 1989. AWARD The grievance, dated May 20th, 1988, arises under the provisions of a Collective Agreement in effect between the parties and is a claim that the College was in violation of Article 7.6 thereof by failing to pay the lead hand premium rate to the grievor. The College denied the grievance on the basis that the condition of the section did not apply in that the grievor's duties did not meet the requirements for designation as a lead hand. The matter was thereupon referred to arbitration pursuant to the terms of the Collective Agreement and came on for hearing as above noted. There is no dispute as to the Board's jurisdiction to deal with this matter. Article 7.6 of the Collective Agreement is as follows: 7.6 Lead Hand Premium Where the College determines that it is required, & 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 classifi- cation rate for all hours worked dudng such assignment. It is understood and agreed that Lead Hand assign- ments shall not be applicable to employees in the classifications listed below where the job duties and rate currently reflect Lead Hand responsibilities: Nurse 8; Early Childhood Education Worker B. The premium shall be payable for all hours worked but shall not form part of the employee's straight time hourly rate for the purposes of overtime or other premium pay. - 2 - The lead hand definition forms part of the College manual and the support staff job evaluation manual which was in effect at all material times in this dispute. This definition provides as follows: "Several classifications provide for a lead hand function and the support staff collective agreement provides for a premium to be paid to an employee who has been designated by management to be a lead hand. Management has also the right to withdraw the premium when circumstances no longer warrant the payment of such premium. Lead Hand Function involves assigned responsibility for two or more employees. A Lead Hand is not a supervisor but is involved mainly in passing supervisor's instructions to members of work group; explaining new projects and assignments and normally includes other duties as follows: 1) Allocating daily work assignments, according to established methods and procedures, and established priorities as required. 2) Laying out work, indicating sequence of work processes; showing employees how to do tasks when difficulties arise; checking completeness and accuracy of finished tasks; keeping supervisor informed of work progress. 3) Explaining office routines, work procedures, use of equipment or machinery, safety procedures and regulations, explaining precedents and past decisions. 4) Recommending changes to existing work methods and procedures. 5) Reporting on attendance. The Union's position is that the lead hand description fits the grievor's responsibility to run the · text book area of the College book store. The grievor is classified'as a Text Book Buyer and reports to the Manager, Purchasing Services. The position summary of the job description for this classification is as follows: "Under general supervision of the Manager, Purchasing Services, responsible for sourcing and buying text books and reference materials to meet College requirements." Mr. Johnston is the Purchasing Services Manager responsible for the book store and is not a member of the~bargaining unit. Nancy Chipps is an employee in the bargaining unit who is designated as a lead hand in the book store and in the Union's submission, functions as the Assistant Manager. There are 16 employees in the store on a regular basis which complement increases to about 50 in January and September which are the two volume months with regard to students requirements. There are five areas in the book store, text books, trade books, supplies, miscellaneous and cashiers. The grievor works as a Text Book Buyer in the text book area, which also includes Kathy Pepper, who does the orders and returns and Mr. Doughty who is the Receiver. All three are full time employees. Audrey Fletcher, a typist, does work for the Text Book Section as well as in the other areas of the store and is a part-time employee. It is the Union's position that the grievor is the de facto lead hand in the text book area of the book store and has in that regard been designated by the College, as a lead hand because of the nature of her duties in that area where she has worked since 1980 as a Text Book Buyer for the College. The grievor's evidence is that her main responsibility is to oversee the text book area and to ensure that all functions are carried out for the servicing of faculty and customers. She orders the texts and has Ms. Fletcher type up the purchase orders which are sent to the publishers. The books purchased are received through Mr. Doughty who prices and places the books on the shelves. Ms. Pepper hand~es the returns of the books after the session is finished. The grievor screens the books and advises her which are to be returned. The grievor started her employment as a sessional Clerk B responsible for typing and bank deposits and reported to the bookstore Manager, an employee not in the bargaining unit and who was located in the store. Nancy Chipps was designated as a lead hand at that time. In 198-4 the grievor was classified in her present position after which she reported to Mr. Johnston who is responsible for the book store and Purchasing Services and whose office is located in another building. Ms. Chipps continues with the lead hand designation in the book store. The grievor said that no one else has been given that designation on a full time basis by the College but she is designated - 5 - as a lead hand in the absence of Ms. Chipps. She said her job responsibilities have increased because the Manager is no longer located in the store. She said about two years earlier she discussed her responsibilities with Mr. Johnston to determine her limitations as to delegation of work in the area and it was her understanding as a result that his perception of her job was that she should oversee the text book area. She said that where extra staff are required in her area she would tell Ms. Chipps what was needed and the reason for it. Customers who may be disgruntled about text book returns would be ref6rred to Mr. Johnston. She said that when Ms. Chipps is absent for a day or more she is designated as lead hand for the store. She is not so designated during the break periods in a regular day. When she is designated as a lead hand, she receives the lead hand premium. It is the grievor's evidence that she as her regular duties always sees the text book department in all aspects and assigns work to PepDer, Fletcher and Doughty and any of the other part-time employees she requires. She knows how this area is operated and does not pass on supervisory instructions but does that work herself. She explains new projects to the other employees as well as any new assignments. She allocates daily work assignments to Pepper, Fletcher and Doughty and priortizes their work. When other employees in the store have free time she would allocate filing or various other jobs for them. The grievor said she does lay out work as well as the sequences of process and showing the others how to perform their work in order of importance. Where difficulties arise, the employees ask her about the problem. She checks the completeness and accuracy of the work of the employees and makes sure that the receiving is up to date with the records and would check all the specific instructions typed in the purchase order. She keeps the supervisor informed of the work progres~ .and if a problem in the department arose, she would advise Ms. Chipps or Mr. Johnston if it was a problem she could not handle or a large amount of money was involved or for extra staffing. The grievor testified that she does explain office routines and work procedures to other employees as to returns and orders and gives directions to them. She explained the word - Star Computer program to Ms. Fletcher who comes to her when difficulties arise on her computer. She explains safety procedures to the employees and makes sure that fire exits are not blocked by stacks of books. She said that if she found an existing work method that could be done more efficiently, she would automatically change it and confer with Mr. Johnston about it later. She does not report on attendance of employees. '~ The duties and responsibilities of the grievor's classification are set out in the position description as follows: 1. Responsible for the purchase of 25% College textbook requirements, including satellite campuses, by analyzing and compiling datea to determine quantities. 2. Compile, maintain (by data entry) and 21% distribute reports covering course lists/book lists to enable departments and/or faculty to order items piror to established deadlines. 3. Purchase reference material that co- i~% incides with the College market to help generate increased revenue. 4. Research reference material in conjunction 10% with Tradebook Buyer as required by customers to obtain items on approval for acceptance as programme support. 5. Delegates work and certain assignments 10% (entering computer data, typing, filing, etc.) to other staff as required. Oversees and reviews order processing. 6. Assists in related clerical duties, i.e. 10% answer telephones, customer service. 7. Expedite orders and advise customers on 5% order status. 8. Review new edition/out of print notices and 4% takes appropriate action. Review overstock of books. The grievor said that she now spends about 20% of her time overseeing and reviewing order processing. The description of the job difficulty in the position description is as follows: "Use considerable judgment after compiling and analyzing data to determine quantities of. texts, i.e. each text has its own analysis performed - approximately 700/1000 titles each semester. .. Solely responsible for scheduling and timing of reports for established deadlines, i.e. booklists must be sent to each department before the first class of each semester. Research text/reference material as required by faculty/staff, i.e. finding out availability, price, publisher or replacement. Respond to unsatisfied customers to rectify problem situations such as refunds or out of stock/out of print books. Department ordering a text then changing the curriculum once it has been purchased by"the student. As designated Lead Hand in absence of Support Services Officer, provides staff scheduling. Must be prepared and able to explain store policy and procedures relating to entire store operation when called upon to do so and offers customer service advice. Handle enquiries from other staff members and give them instructions when required to do so. Uses considerable judgment in deciding the priorities for each day and then ensures that those are carried out, i.e. ensuring that night school lists are readily available for each particular night and ensuring that all books are available for sale if received. Notifies staff and departments of any delays. Examines and recommends changes to existing documents and work procedures. It is the grievor's evidence that she performs all the duties of the lead hand description while overseeing the text book department. The grievor therefore claims the lead hand premium for that work. The'grievor is classified as a Clerk D as a result of a re-classification in April 1986. The position description for her classification was finalized in March 1988. She provided her description of her job duties to Mr. Johnston at his request. When the position description was completed, she reviewed it and agreed at that time that it acurately reflected what she did. The only change to the document whch she pointed out at the time dealt with the exposure to cold from the Receiving Department. She said that she was assigned the responsibility for three full-time employees and part-time employees as required in the department as part of her duties to oversee the text book area. She agreed that Mr. Johnston did not specifically tell her that she would be responsible for these employees as a lead head nor that he had assigned her as a lead hand in the text book area. When Ms. Chipps is away, it is her evidence that she is assigned to be the lead hand for the store. The grievor testified that in overseeing the functions of the text book area, she performs the requirements of a lead hand. In order to complete her tasks, she must assign work to the other employees in that area and give them instructions as may be required and ensure that their duties are carried out as part. She said that she filed her grievance concerning the lead hand premium before she signed the job description and that Mr. Johnston was aware of her position in that regard. Employee evaluations are not discussed with her. She is not involved in the discipline of any other employee. If the employees require time off, they would request that time through Ms. Chipps unless the grievor was acting as the lead hand. She said that she would delegate more work to Mr. Doughty in the receiving area ~th~n the buyer for trade books, as text books have higher priority in ordering but apart from that, Ms. Brooks, who is the buyer in the Trade Department, does the same thing as she would with regard to the receiving area. Ms. Fletcher does typing for others in the book store as well as the grievor and they would check her work for accuracy as well, but if she does not have work to do, the grievor would give other work to her. She said Ms. Pepper has her own work to do in orders and returns and while she would provide priorities of her work, she has not been told that she had a responsibility for her as an employee by Mr. Johnston. While these employees are-assigned work by others, she said that she would deal with them more than the others at the store as she has a larger volume of paper work. Any changes required in the text book area are done by her unless it had a financial cost in which case she would discuss the matter with Mr. Johnston. The grievor is a very experienced employee in. the book store and is the only employee in the store who is knowledgeable about text books. Other employees who have difficulties in that area would naturally seek the information from her. She said that Mr. Johnston attends at the book store on a regular basis but not necessarily every day but as required. The Union also called the evidence of Mr. Doughty, Ms. Fletcher and Ms. Pepper, however~ in the nature of the dispute and its resolution under Article 7.6 as fndicated below, it is not necessary for the Board to set out their evidence in detail although it has been considered in the cause. The purport of this evidence is that these employees assumed at least that the grievor has performed the lead hand function in the text book area which she controls. It is also the evidence that Nancy Chipps is acknowledged as a lead hand in the book store and that they have not been told that the grievor is designated as a lead hand and responsible for their work. Mr. Johnston's evidence is that he has been employed by the College since 1971-and has been Manager of Purchasing Services since December 1981 in which job he supervises both purchasing and the book store which has a resident supervisor, Ms. Chipps. Each of the four departments in the book store are distinct and each has a buyer-clerk D who is - 12 - responsible for the overseeing of that part of the operation of the store. That means to assure the smooth operation of their department in whatever way is necessary which could involve the request for additional staff and overtime. He said that Nancy Chipps is the designated lead hand, resident on site who reports directly to him. She is responsible for staff scheduling, arranging re- placements of employees, additional employees, scheduling vacation and hours of works and breaks and report absences. She would instruct new employees on specific equipment and of the policy and procedures in the book store. She receives input from the four buyers in the store as to their suggestions of work load and staffing in their departments. She advises him of any problems dealing with either customers or vendors. He said that the grievor is an excellent employee and has total knowledge of the text book industry and has a good rapport with faculty and others with whom she deals. She works with computer systems. Mr. Johnston discussed the position description with the grievor and other than a minor change, he said this document was agreed to be correct. He has designated~ the grievor as a lead hand in the absence of Ms. Chipps who is the designated lead hand for the store. When the grievor is so designated, she is paid a lead hand premium. He said that the grievor has not been assigned the responsibility for Mr. Doughty, Ms. Pepper or Ms. Fletcher, other than when she has been designated as a lead hand. He said that passing of supervisor's instructions is normally performed by Ms. Chipps but at times the grievor could have done so after discussion with him about a particular problem in her area and could have passed that information to the others in her department who require it. He said that the grievor could advise the others of work priorities but she does not check the completeness of the work done by Ms. Pepper and is not responsible for it. He discusses the work of the grievor's department with her on a fairly regular basis as he does with the other employees. Attendance of employees is recorded and reported by Ms. Chipps who handles all the forms for payroll in that regard. Ms. Fletcher is the secretary for the store but is located in the text book area where the majority of her work arises but she does filing and typing for all the areas in the store. He said that the majority of Mr. Doughty's work involves the text book department but his prime responsibility is to receive the books of loading and recording and shelving. He would contact the department buyers to identify the orders and to receive priorities to deal with the books necessary to be put into the store. It is the submission of the Union that it challenges the failure of the College to formalize the de facto assignment of the grievor as a lead hand as in its submission, the grievor performs the lead hand functions as provided by the definition. Therefore, the College is obliged.by 7.6 to pay the lead hand premium to the grievor. In its submission the designation can be completed by assigning the necessary duties and responsibilities to the individual by the College. Re Pilkington Brothers Canada Ltd. and United Glass and Ceramic Workers, 13 L.A.C. (2d) 287, (Burkett). In its submission the ratio of that case supports its submission that an employee cannot be required to perform the work of a lead hand in the text book area without granting the designation. The grievor did fill in as a lead hand in the absence of Nancy Chipps in which circumstance she obtained the premium. It was argued, however, that for the balance of her time she had a significant degree of general responsibility for the store whereby employees would look to her for direction and to answer problems. For this larger function it is the Union's position that she should be compensated by receipt of the lead hand premium under Article 7.6. It was submitted that her responsibilities increased after 1984 when the staff increased in the book store and the Manager was located off site. The grievor is responsible for overseeing the text book area, assigns work to the other employees and makes sure that the functions in that area are performed in the text book area. In its submission the evidence indicated that the other departments did not need the same performance of functions as those by the grievor in text books and that those departments are not directly comparable. It was submitted that the grievor is responsible for three full-time employees and any required part-time employees in the text book area which satisfies paragraph 2 of the lead hand definition. She delegates work to these employees and oversees the department. The employees perceive that the grievor acts as a lead hand in that area. It was submitted that to meet the summary of her job description the grievor performs the lead hand function although that term is not included in the position description. It was submitted the grievor does pass instructions to members of the work group, explains new projects and assignments to other employees and provides certain information in addition to daily work assignments to all three of the other employees in her department. She priortizes receiving and stocking for Mr. Doughty and arranges other work for cashiers who have free time. She monitors the work of Mr. Doughty and others and keeps her supervisor informed of the work of her department and recommends changes to her supervisor or may take direct action if change is needed. As the grievor is held accountable to oversee the work in the department, it must in its submission be taken that Management has assigned this responsibility to the grievor. It is the submission for the College that in order to obtain the lead hand premium, there must be a designation by the College that within a work group a lead hand is required. It is only when that is done that the College is responsible for payment of the premium. It relies on the lead hand definition which has been applied by both parties on this issue and the terms of the job description agreed by the parties and acknowledged by the grievor to be accurate. In its submission the requirements of the position description covers the requirements of the grievor and performance of her duties and while it is acknowledged that the grievor is resourceful and an excellent employee who acts with initiative to perform the work required, she is paid under her classification for that work which is not beyond her job description. When the grievor acts in the absence of Ms. Chipps she is designated as a lead hand and is paid the premium but otherwise has not been designated by the College and is not held to be responsible for the work of the other employees in her department. In its submission there is nothing inconsistent in the position description with the duties and responsibilities required of the grievor in her regular work. Management does not hold her responsible for the work of the employees in her department as a lead hand although she is responsible for the work required by the College as set out in the position desription. Ms. Chipps is designated as a lead hand in the store and is recognized as such by the other employees and is the individual responsible for attendance, reporting and scheduling of the other employees. For the short period of time that Ms. Chipps may be absent from the building on a regular day, it cannot in its submission be found that ~he grievor assumes the responsibility of a lead hand. It is only when Management has designated the grievor as a lead hand in the absence of Ms. Chipps that she has been paid and is entitled to the lead hand premium. In its submission as Management has not made a designation of lead hand duties to the grievor at any time, the grievor cannot claim the premium provided by Article 7.6. The Union has the onus to establish that the College is in breach of Article 7.6 of the Collective Agreement by failing to pay the lead hand premium to the grievor as alleged in her grievance dated May 20th, 1988, retroactive to January 29th, 1988. To satisfy that onus, the Union must establish that a lead hand was required in the text book department of the book store of the College and that the College failed to so designate that employee in that capacity when in fact the need or requirement existed, not as a matter of a vacancY, but as a matter of job duties required of the grievor. It is the uncontradicted evidence that Nancy Chipps has been designated by Management as the lead hand for the book store and at the time of the grievance - 18 - continued in that capacity. It has only been in her absence for a day or more that the grievor has been designated by Management as the lead hand in that department and in that regard assumed the responsibilities of the lead hand performed regularly by Ms. Chipps. When she is absent during the course of a regular day on breaks or at staff meeting or such like, it is not practical to consider the appointment pro tem of the grievor as a lead hand for short and irregular portions of the regular work day. Clearly that is not required by Management or by the employees as Ms. Chipps, although away from the book store, is working in the course of her regular employment and does not lose her designation by the fact of attending meetings or taking her regular breaks during the day. To allow that consideration would require the College to pay the lead hand premium in the book store for the grievor and Ms. Chipps for the same hours of work which is not consistent with a determination that a lead hand is required under Article 7.6 which is the function of Management. It is as well the obligation of the Union in this case to establish the factual base for the claim within the lead hand definition which is provided by the parties in relation to the job evaluation procedure and which has application in the assistance to the Board in its interpretation and application of Article 7.6 of the agreement. The Board finds that the grievor is involved - 19 - in her department with two or more employees, both full and part-time, but the evidence of Mr. Johnston, which we accept, establishes that at no time was the grievor assigned by him or anyone else from Management, the responsibility for these employees in the sense of the requirements of paragraph two of that definition. The job duties set forth in sub-paragraphs 1-4 are to some degree, according to the evidence, dealt with by the grievor in relation to the other employees in her department such as establishing priorities and indicating sequence of work and checking their work and advising her supervisor of the progress of the work. The grievor does not report on employee attendance, does not become involved in scheduling of hours of work, vacations or requests for time off, all of which the other employees acknowledge is dealt with by Ms. Chipps for it is only in her absence that the grievor when designated as a lead hand would be involved in such matters. The grievor is not given the responsibility to discipline employees or to deal with their job evaluations. The grievor bases her claim essentially on her perception that as she had been told by Mr. Johnston that she was to oversee her department and having regard to the many functions in that most important department in the book store, those functions overlap and are consistent with the lead hand definition and therefore claims the lead hand premium for all of these duties on a regular basis which she performs. The grievor's claim in this regard, however, does not properly take into account the requirements of her job description in the classification of text book buyer which it was agreed to accurately reflect the duties and responsibilities of her position at the time of the grievance. We find that all of the concerns with regard to the grievor's perception of her job in relation to the lead hand responsibilities are found within her job description. For that reason alone, the grievor's claim cannot be sustained. The ten specified job duties and responsibilities set out above in our view support that conclusion with particular reference to paragraphs 1, 2 and 5, which relate to the summary of her position. In addition, her concerns of the responsibility in her present duties are set out specifically in the description of the job difficulty in Section C of the position description. She is compensated under that description for such things as inquiries from staff members and others and using her judgment to determine priorities and recommends changes to procedures of work and as well is designated as a lead hand in the absence of the Support Services Officer when she may provide staff scheduling. Taking the requirements of the grievor's position description along with'the lead hand definition and having regard to the requirement of its designation by the College of a lead hand in order to require the payment of the lead hand premium under Article 7.6, it is clear that the evidence in this matter does not support the grievor's claim. A premium over and above a regular classification rate is obviously meant to compensate for additional duties or responsibilities than required in the classification and is subject to the terms which the parties place in their agreement for the application of such wage premiums. Where as here, the regular job duties as described in the position description encompass the very responsibilities relied on by the employee to establish an addition to the regular wage rate, unless Management has taken a positive step to designate the employee in a position of lead hand, we find that there has not been a de facto designation as argued by the Union established as the requirement for such designation does not exist. The responsibilities for which such a p~mium would attach, have been covered by the parties in the grievor's job description. Having reviewed the evidence before us, the Board finds that the duties and responsibilities relied on by the grievor to support her claim for the premium do not exceed her job description to the extent that she would reasonably fall within the lead hand definition so as to conclude that she was acting in fact as a lead hand although not being so designated by Management in the book store or within her department. Paragraph 2 of the definition requires the assigned responsibility for employees. The evidence establishes that Management did not assign the responsibility of any employees to the grievor other than on those occasions when she was specifically designated by the College as a lead hand when Ms. Chipps was absent from work. All of the other responsibilities which were referred to in the evidence, which the grievor performs, are fully contained in our view within the parameters of the position-' description and are responsibilities for which she is paid under her present classification wage rate. The Board finds that there is no basis on the facts of this case to allow a lead hand premium for work which has not been determined to be required by Management the grievor as a lead hand nor in circumstances where the grievor's regular duties as required by the position description and for which she is paid, includes those specific responsibilities which she asserts as establishing extra classification responsibilities in the form of lead hand duties. The Board rejects the Union's submissions in that regard and finds that the evidence does not establish that the College denied the lead hand premium to the grievor contrary to Article 7.6 of the Collective Agreement as alleged. For all of the foregoing reasons it is the Board's award that the grievance is dismissed. DATED AT OAKVILLE, THIS ~ DAY OF JANUARY, 1990. HOWARD D. BROWN, CHAIRMAN J. McMANUS, UNION NOMINEE R.J. GALLIVAN, COLLEGE NOMINEE