HomeMy WebLinkAboutMariconda 95-03-17G~ORG~ BROWN COLLEGE O~ APPLIED ~RTS AND TECHNOLOGY
(hereinafter referred to as the College)
and
ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 557
(hereinafter referred to as the Union)
Classification grievance of Joseph Mariconda, Carmine Bozzo and
Haroun Ali
Sole Arbitrator: G.J. Brandt
Appearances:
For the College: Christine Parsonage, Human Resources
Regina Lapworth, Mgr. Labour Relations
Judith Halovanic, Mgr. Housekeeping
and Security
For the Union: George Richards, Grievance Officer
Douglas Johnson, Union Representative
J. Mariconda, Grievor
Hearing:
George Brown College
March 7, 1995
AWARD
Introduction
This matter originally involved a dispute concerning the
classification of three employees: Mr. Joseph Mariconda, Mr.
Carmine Bozzo and Mr. Haroun Ali.
Mr. Ali and Mr. Bozzo were originally hired by the College
in 1974 and 1978 respectively. Prior to the implementation of
the Support Staff Job Evaluation System in 1986 they were each
classified as Caretaker 3, payband 3. In June of 1986 they were
each grandparented at Caretaker C, payband 3. As a result of Pay
Equity adjustments the position of Caretaker C was moved to
payband 4. Under the Gender Neutral Classification System
introduced in May 1993 their positions have been classified as
Caretaker A, payband 2. However, by local agreement, the
grievors have been grandparented at payband 4. At the time of
the hearing both men were working at the St. James campus of the
College.
Mr. Mariconda was hired in 1991 as a Caretaker B, payband 2.
In August, 1992 he replaced a lead hand (on the night shift at
Casa Loma campus) who had, through a grandparenting arrangement,
been classified as an Atypical Caretaker payband 6 (raised to
payband 7 under Pay Equity). Initially Mr. Mariconda was, in
error according to the College, given the same classification and
paid the same compensation as the person he replaced. He was
advised of that error within 2 weeks of his appointment and, in
January of 1993 he was returned to his original Caretaker B
position and payband and paid the lead hand premium.
On March 30, 1994 Mr. Mariconda grieved seeking
classification as an Atypical Caretaker Payband 7. On April 8,
1994 Mr. Ali and Mr. Bozzo filed identical grievances. All three
grievances were referred to arbitration and scheduled to be heard
together.
At the hearing.counsel for the union advised that he had
only recently been made aware that Mr. Ali was hearing impaired
and required some accommodation to permit him to participate in
the hearing. However, as such accommodation could not be
arranged by the time of the hearing, it was agreed by the union,
the grievor and the College that Mr. Ali's grievance would be
held in abeyance and would be reviewed following the receipt of
this award.
A second issue which arose concerned the designation of
which of the grievor's would be considered to be "representative"
for the purposes of conducting an extradited arbitration hearing.
Mr. Richards advised that Mr. Mariconda would be the
representative grievor. Ms. Parsonage advised that the College
did not consider that the duties performed by Mr. Mariconda and
Mr. Bozzo were sufficiently similar to permit their respective
cases to be considered at the same time. Consequently, it was
agreed that the grievance of Mr. Bozzo would be held in abeyance
and would, like that of Mr. Ali, be reviewed pending the receipt
of this award.
Consequently, the only remaining matter before me for the
present is the grievance of Mr. Mariconda.
A second preliminary issue concerns the appropriate PDF that
is to be taken as describing the position whose evaluation is in
dispute. The union brief indicates that, shortly after the
grievance of Mr. Mariconda was filed, a PDF was prepared,
approved and signed by the grievor and by Mr. McGee, his
supervisor, and Mr. Teasdale, his manager, to each of whom he had
reported since he started in 1991 and each of whom were familiar
with his duties and responsibilities. That PDF, signed by the
signatories on May 6th and 9th 1994, identifies the position as
Senior Caretaker and summaries the position as follows:
Incumbent presides over caretakers on various shifts.
This position ensures the overall maintenance of a
clean and safe public education environment.
Further, it listed the duties and responsibilities as follows:
Monitors duties of caretaking staff to ensure
satisfactory level of service and efficient
utilization, while assisting with cleaning
responsibilities due to absences
47%
Assists in the preparation of cleaning budget and
ensures efficient operation with constraints 21%
Performs and Monitors minor maintenance functions
Assesses equipment needs of department annually and
makes recommendations to Manager 7%
Monitors Recycling Program
Maintains accurate monthly attendance and inventory
records 7%
Oversees the set-up and teardown of a variety of
special functions and assists in basic security of
College property (eg. doors locked etc.) 7%
Carries out requests as assigned by Manager for
relocation of furniture and equipment. 7%
Other related duties as assigned 4%
However, on May 21, 1994 Ms. Judith Halovanic, who replaced
Mr. McGee, prepared a new PDF which was submitted to the Support
Staff Classification Committee for review and evaluation on June
6, 1994. The College brief indicates that this PDF was
subsequently revised following meetings with the grievors on June
15th and at the Step 1 meeting on July 18th but that, as the
changes were minimal, the original core point rating remained.
Accordingly, a PDF dated July 21, 1994 was evaluated and
classified as Caretaker A, payband 2.
This PDF differs substantially from the May PDF upon which
the union and the grievor rely. The Position Summary states that
Incumbent is responsible for general cleaning of campus
buildings and grounds maintenance under the direction
of the Supervisor or the Lead Hand. This position
assists in the overall maintenance of a clean and safe
public education environment.
The Duties and Responsibilities are listed as follows;
1. Performs typical cleaning duties to maintain all
campus facilities such as ..... 75%
2. Performs basic ground duties as required. Maintains
clean and safe external properties/pathways as required
by regulatory bodies (eg. shovels and salts steps, on
occasion) 10%
3. Informs supervisor (or designate) of significant
maintenance or repairs required to college properties
5%
4. Moving of furniture and equipment, set-up/teardown
of special functions 5%
5. Other duties as assigned 5%
On August 17, 1994 the parties met at Step II to consider
the grievances. At that meeting a substantial dispute arose
concerning which PDF should be used for the purposes of
evaluation of the position. The grievors took the position that
their Lead hand duties formed a far greater proportion of their
responsibilities than was indicated in the PDF. The College took
the position that these duties were covered under the Lead Hand
guidelines and were appropriately rewarded by the Lead Hand
premium. A memorandum of August 24, 1994 to the grievors
indicates that at this meeting they confirmed the following
breakdown of their duties:
50% approximately co-ordinating the work of others
30% performing typical cleaning duties
5% Performing basic ground duties
10% Informing supervisor of maintenance or repairs required
to College properties
3% Moving furniture and equipment, set-up - teardown
2% Other duties as assigned.
As a result of this dispute there was no productive discussion of
the various job factors and the meeting broke up. As a result no
arbitration data sheet was filed with me by the union.
But for an agreement between the parties reached at the
hearing I would have been prepared either to adjourn this
grievance and direct the parties to complete and conclude their
Stept II meeting and discussions or to refer the matter to a full
board. The expedited arbitration process simply cannot work
where there is such fundamental disagreement between the parties
as to the duties and responsibilities actually being performed by
a grievor.
However, it was agreed at the hearing that I would adopt the
following procedure:
i) conduct an extradited hearing limited solely into the
question as to the extent to which the grievor performs duties
which can be characterized as "monitoring" or "co-ordinating" the
work of other caretakers;
ii) hear submissions from the parties with respect to
whether, having regard to that evidence, the collective agreement
and the Job Evaluation Manual, the grievor should be classified
as a Caretaker Atypical, Payband 7, as the union claims, or as a
Caretaker B with Lead Hand Premium, as the College maintains.
2. The facts
At the time of the grievance caretaking services were
provided at 5 separate buildings at the Casa Loma campus of the
College. In buildings A, D, and F caretakers work an afternoon
shift running from 4:00 p.m. to midnight. There is no night
shift in these buildings. In B building there is both an
afternoon and a night shift and in C building there is only a
night shift. The night shift runs from 10:00 p.m. to 6:00 a.m.
There are a total of 8 caretakers employed on the afternoon shift
in A, D and F buildings; 2 caretakers in each of the afternoon
and night shifts at B building and 11 caretakers (including the
grievor) employed on the night shift at C Building. Thus, during
the period between 10:00 p.m. and midnight when the two shift~
overlap there are 23 caretakers, 10 of whom end their shift at
midnight leaving 13 remaining to carry out their duties at B and
C buildings.
At the time of the grievance the grievor worked the night
shift at C building. For the first 2 hours of that shift he
attends, where necessary, to the concerns of the afternoon shift
caretakers in A, D, and F buildings. This may involve him in
issuing them with needed supplies, assisting them in
understanding instructions (eg. on the use of new equipment)
which they may have received from their supervisor, the Campus
Manager, or completing work orders for the attention of the
Campus Manager next day relating to problems (eg. clogged drain)
that may have arisen in their building. The grievor estimated
that he spends on average between 45 minutes and an hour each
night attending to these problems - many of which require him to
leave C building 3 - 4 times a week on average.
The rest of his duties are divided between his "lead hand"
functions, viz monitoring and co-ordinating the duties of the
other caretakers in C building and the 2 caretakers on the night
shift in B building and his cleaning functions.
The general cleaning routine for all caretakers is emptying
garbage bins (in the hallways, classrooms and bathrooms),
sweeping floors or vacuuming carpets; cleaning and disinfecting
bathrooms and ensuring that sufficient supplies are available,
dusting window ledges, door frames, tops of lockers etc. and
cleaning the stair wells. The caretakers are each responsible
for particular areas of the building and are aware of their
assigned duties in each area. The grievor has some
responsibility for changing the area where a caretaker will work
if, for some reason, that is thought necessary. However, except
where there is some change in the routine, such as where there is
an assignment to "set up" a room for some special function the
next day, he has no responsibility for assigning specific duties.
In this latter instance his responsibility is to make sure that
any needed supplies are available and to instruct the caretaker
as to what to do. However, this generally involves simply a
choice between either arranging the tables in rows or in a
squares and there is rarely a need for some different
configuration. The grievor estimated that such set ups were
necessary approximately once a week. He also has some
responsibility for prioritizing the work when, as a result of
shortages of staff on particular nights, it may not be possible
to clean all the areas to the highest standard. I'n that event
first priority may be given to ensuring that the cafeteria and
the bathrooms are cleaned.
At the start of the shift the grievor checks to make sure
that the other caretakers in C Building have reported to work on
time and reports to his supervisor, the Campus Manager, if
employees are late or absent. He also issues them with any
materials that they may require to carry out their functions.
After they have been out on their respective floors for a
period of time the grievor checks on their work by going from
floor to floor to inspect what is done and, if necessary, to
speak to the caretaker concerned if the work is not being done
adequately and within the deadlines that are required. This
particular checking or monitoring function is also performed with
respect to the caretakers working in B building, approximately 5
- 10 minutes walk away. Generally, this would involve him in a
visit to that building 2 or 3 times a night occupying up to an
hour of his time in total.
The grievor himself also performs some cleaning duties.
These are essentially of two kinds; cleaning the two carpentry
shops - a task which takes approximately one hour each shift -
and assisting the other caretakers with their cleaning where
there are absences. Considerable evidence was led with respect
to the amount of time spent by the grievor in filling in for
other caretakers absent for various reasons, eg. wcb injury,
vacation, illness, etc. As might be expected there is no
regularity to these absences. The grievor stated that there
could be as many as 5 caretakers absent on any particular night
or between 1 and 3 absent for 2-3 days of the week. He stated
that when he has a lot of caretakers absent it may not be
possible, even with his assistance, to clean all of the areas
that require cleaning and some prioritizing will be necessary.
He estimated that, exclusive of the one hour that he spent
cleaning the carpentry shops, the time spent on covering for the
absence of other caretakers would be of the order of between two
and two and a half hours per night for the 2-3 nights a week
when, on average, the absenteeism is of such a level that he is
required to assist other caretakers with their cleaning.
Reference should also be made to his assistance to other
caretakers when moving tables and chairs associated with the
special "set up" of rooms. His estimate of the length of time he
spent in that activity was once a week task for between 30
minutes and 1 hour.
Taking his estimates at their maximum levels, viz, one hour
per night on the carpentry shop; 3 hours of assistance 3 times a
week to cover for absences and one hour a week moving tables, it
would appear from the grievor's evidence that, over the course of
a 5 day week, he is involved in cleaning activities for
approximately 15 hours.
These estimates of the time spent in cleaning activities
were disputed by Ms. Judith Halovanic, who, since May of 1994,
has been the Manager of Housekeeping and Security and the
grievor's immediate supervisor. It was her opinion that, given
the incidence of absences through vacations, workers'
compensation injuries and general sickness, the amount of time
that he would be required to spend assisting the remaining
Caretakers with their cleaning would be considerably higher than
he had estimated.
I have no choice but to prefer the estimate of the grievor
himself. Ms. Halovanic was not in her current position at the
time of the grievances and is not, accordingly, able to speak to
the question of the incidence of absenteeism at that time.
Moreover, even though there has been little change since the time
of the grievance, her estimate suffers somewhat from the fact
that she herself has never observed the grievor during the night
shift. As I have no reason for disbelieving the grievor's
estimate of the amount of time that he spends in cleaning
activities, I accept it as fact for the purposes of this case.
It is clear from this evidence that the grievor spends a
greater proportion of his time on monitoring and co-ordinating
the activities of other caretakers than is claimed by the College
in its submissions. As such the duties and responsibilities
that he actually performs are more closely captured by the May 6,
1994 PDF prepared by Mr. McGee, Mr. Teasdale and the grievor than
they are by the July, 1994 PDF prepared by Ms. Halovanic.
3. Argument and conclusions
As indicated at the outset the parties are divided as to how
to recognize and reflect the grievor's "monitoring" etc. duties.
It is the position of the union that this should be done by
classifying him as an Atypical Caretaker and establishing his
payband by reference to core point rating. It is the position of
the College that his "monitoring" duties are reflected in the
lead hand premium that he receives and that it is inappropriate
to factor these duties into the classification system for the
purposes suggested by the union.
In order to resolve this issue it is necessary to examine
various provisions of the collective agreement and the Support
Staff Job Evaluation Manual.
Article 7.6 of the collective agreement in force at the time
of the grievance provides, 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 for all hours worked during such
assignment.
It is understood and agreed that Lead Hand assignments
shall not be applicable to employees in the
classifications listed below where the job duties and
rate currently reflect Lead Hand responsibilities:
Nurse B:
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.
By a Letter of Understanding dated September 20, 1993 the
parties to the agreement deleted the second last paragraph of
Article 7.6 and provided that, effective May 21, 1993, "in
future, Nurse B and Early Childhood Education Worker B shall be
paid lead hand premiums consistent with the application of
Article 7.6 to other employees".
Section IV of the Manual, after referring to the above
provisions of the collective agreement, defines Lead Hand as
follows:
The 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 a 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 establishing
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.
Section II of the Manual sets out various guidelines that
are intended to be of assistance in evaluation and classifying
positions. They provide, inter alia, as follows:
2. To evaluate a particular position it is necessary to
determine the Job Family to which it appropriately
belongs .....
3. In some cases the duties and responsibilities of a
position will not clearly fall within a single Job
Family Definition. In these instances, the principle
of "core theory" should apply. Quite simply, the
predominant or central duties of the position should
determine the Job Family.
4. Having determined the appropriate Job Family, the
duties and responsibilities of the position being
evaluated are compared to the Classification levels
described in the relevant Job Evaluation Guide
Charts .... Considering the normal activities of the
position, it is matched with the guide chart level
which most accurately describes the actual content and
responsibilities of the position .... In most cases a
reasonably close approximation to a classification
level in a Guide Chart will be possible.
6. A relatively small number of truly atypical
positions that encompass duties and responsibilities
which are not adequately covered by the existing Job
Family Definitions and the Job Evaluation Guide Charts,
are evaluated by the Core Point Rating Plan...This
section can also be used to core point typical
positions if the position being evaluated has duties
that cannot be readily evaluated using the Job
Evaluation Guide Charts.
It is the position of the Union that primary regard should
be had to section II of the Manual establishing the principles
that are to be applied in evaluating and classifying jobs. In
particular, it is suggested that there is no Job Family which
adequately captures this position, one which counsel
characterized as essentially "supervisory" in nature and that
accordingly the Job Family should be determined in accordance
with the principles of core theory, viz, the "predominant or
central duties of the position". It is submitted that, having
regard to the evidence, the "predominant or central" duties of
the position are monitoring and co-ordinating the work of others,
duties which are not adequately covered by the Job Family
Definitions or Guide Charts and which (pursuant to Section II(6)
should be core point rated.
The College argues that, given the separate reference in the
Manual to Lead Hand functions, it was not intended that lead hand
functions be evaluated for classification purposes. Rather, what
the parties have done is provide for a separate and distinct
basis for compensating employees for the performance of lead hand
functions. Further, it is argued that, considering that the lead
hand premium is paid for all hours worked on the shift, and not
only in respect of that time actually spent on lead hand
functions, there is an assumption that such duties and
responsibilities may be required to be performed on an ongoing
basis throughout the shift.
In this connection the College seeks to draw some support
from the September 20, 1993 amendment to the collective agreement
deleting that part of Article 7.6 which had denied a Lead Hand
premium to the Nurse B and Early Childhood Education Worker B
classifications on the basis that their job duties and rate
already reflected Lead Hand responsibilities. As a result of the
amendment employees in those classifications are to be paid the
Lead Hand premium in the same way as other employees. It is
suggested by the College that this indicates an intention to
treat payment for Lead Hand functions as a separate and distinct
question from that of classification; that, whereas formerly the
performance of those functions was already reflected in the
classification (and payband) of the Nurse B and Early Childhood
Education Worker B positions, following the amendment
compensation for these functions was to be through the Lead Hand
premium exclusively.
It is my conclusion that the position of the College is to
be preferred.
I begin with the observation that the parties have
specifically included in the Job Evaluation Manual a separate
section entitled Lead Hand Definition. That is an indication
that, prima facie, compensation for the performance of lead hand
functions is to be determined by reference to that section and
that those duties are not to be separately evaluated under the
core point rating Plan. While I cannot rely entirely on the
September 20, 1993 amendment to the collective agreement (since I
know nothing of the circumstances which led to it) I can at least
say that it is consistent with the apparent separate treatment of
Lead Hand functions in the Manual.
Were it the case that only a relatively small percentage of
the grievor's duties involved the performance of lead hand
functions, this problem would not, in all likelihood, have arisen
as there would have been no question that he was essentially a
Caretaker with certain added Lead Hand functions for which he was
compensated. What makes this case more difficult is that it
cannot be said on the evidence that his Lead Hand functions are
ancillary to his other functions - but rather that they represent
the predominant duties of the position. The question before me
is whether that is sufficient to permit me to treat it as an
atypical position and to core point rate it accordingly.
First, it is to be noted that Article 7.6 of the collective
agreement provides for the payment of the premium for all of the
hours worked - not just on which lead hand functions may be
performed. I accept the submission of the College that this
assumes that the'performance of these duties may occur throughout
a substantial portion of a shift - indicating thereby that the
quantity of time spent on these duties is not necessarily a
telling consideration.
Secondly, I do not consider Section II(3) of the Manual to
be of assistance to the union. In my opinion it is intended to
apply to the situation where, having regard to the duties and
responsibilities of the position, there is more than one
"existing" Job Family Definition that may be applicable. The
principle of "core theory" states the basis upon which a choice
can be made. However, where, as here, there is no Job Family
that deals with positions that are largely "supervisory" in
nature this section has no application. I am unable to accept
the submission of counsel for the union that the Lead Hand
position is a "family in itself". The parties have gone to great
length to define and describe a finite number of Job Families and
it is beyond my jurisdiction to add to that list.
Nor am I persuaded that Section II(6) is of assistance to
the union. Although it would appear on its face to apply
directly to the situation before me, it cannot be construed in
isolation from the rest of the manual. In particular, it cannot
be construed in such a fashion as to undermine the provisions of
the collective agreement and the Manual respecting compensation
for the performance of Lead Hand functions. The parties have
agreed to the payment of a .75c/hr premium to all employees who
have been assigned Lead Hand functions which premium is to be
paid in respect of all hours worked. Were I to entertain the
submission of the union and were I to reclassify the grievor at a
payband level higher than that to which his .75c/hr premium would
take him I would be, in effect, amending the collective
agreement.
Accordingly, for the reasons given, I accept the submissions
of the College with respect to the proper application of the
Manual in respect of the performance of Lead Hand functions.
In the result I find the grievor to be properly classified
as a Caretaker B, payband 2 with Lead Hand premium.
~~andt, Arbitrator