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HomeMy WebLinkAboutEither et al 91-04-17 , 90D383~90D388 CAAT S IN THE MATTER OF AN EXPEDITED ARBITRATION PROCEEDING UNDER ARTICLE 18.3.4 OF TIlE COLLECTIVE AGREEMENT BETWEEN: ONTARIO COUNCIL OF REGENTS FOR COLLEGES OF APPLIED ARTS AND TECHNOLOGY IN THE FORM OF NORTHERN COLLEGE (hereinafter called the "College") - and- ONTARIO PUBLIC SERVICE EMPLOYEES UNION (FOR SUPPORT STAFF EMPLOYEES) (hereinafter called the "Union") GRIEVANCE OF EITHER ET AL (hereinafter called the "Grievors") ARBITRATOR: Richard H. McLaren REPRESENTATIVE OF THE COLLEGE: Jim Cotnam REPRESENTATIVE OF THE UNION: Elizabeth Rose A HEARING IN RELATION TO THIS MATTER WAS HELD AT TIMMINS, ONTARIO, ON APRIL 11, 1991. AWARD This matter involved the classification of seven Early Childhood Education Workers (E.C.E. "A") at Northern College. It was grieved that given their duties and responsibilities at the College they are improperly classified under the Support Staff collective agreement. For reasons given orally at the time of the hearing the grievances are all considered to be effective as of January 10, 1989. Any increases in pay arising out of this award will be effective for each of the grievers as of that date. The parties were in disagreement as to the application of interest to any award of retroactive pay as a result of this award. The usual order in these expedited arbitration classification grievances has been for the inclusion of interest. In this instance the parties engaged in a period of protracted discussions concerning the resolution of this matter. They agreed to hold the grievance and arbitration procedure in abeyance. The parties made a genuine attempt to resolve this matter and while that was ongoing it is not appropriate that there be retroactive order as to interest. Therefore, the Arbitrator is -2- awarding interest as of the reference date to arbitration which was June, 1990. Interest is to be calculated monthly from the date of this award back to June 1, 1990 using the average Bank of Canada interest rate for that month. If there is any difficulty in implementing this aspect of the award the parties may refer that matter back to the Arbitrator for a final and binding determination. Northern College operates a DayCare centre facility in South Porcupine. The E.C.E. workers, who are the Grievors in this case, are employed by the College in this DayCare centre. It is their responsibility to run the centre and its attendant programmes and activities for the care and supervision of the children enrolled at the centre. Northern College also offers a Diploma granting programme for students enrolled in its Early Childhood Education programme. These students use the DayCare centre in South Porcupine as their Lab for the acquisition of practical experience. Therefore, the E.C.E. workers at the South Porcupine campus are responsible for the practical development and training of students of the College who are enrolled in its academic diploma programme. These combined functions constitute the core duties of the E.C.E. "A" classification at Northern College. The centre operates under the direction and supervision of a Manager. There is also a programme supervisor at the centre who is a lead hand and a member of the bargaining unit. It is also a corollary responsibility of these workers to respond to the needs of the Family who has placed a child in the DayCare Centre. In addition to the centre at the campu~ the College also operates DayCare centres located in Kirkland Lake and Moosonee, Ontario. There is also a Nursery School located at the James Bay Education Centre sight. -3- The Arbitrator would like to take this opportunity to thank the parties for their presentations. Their written submissions, supplemented by their oral presentations at the hearing, covered the issues in dispute between them well and assisted the Arbitrator immeasureably in arriving at the decisions contained in this award. Three individual Gricvors appeared at the hearing and gave their responses to various questions. They were: Sylvie Letaumeau, Mariette Rheault and Sue Fera. Their information was considered to be representative of the group of seven Grievors. They did an excellent job of explaining their work and outlining their reasons and beliefs as to why they ought to have been classified in a higher payband. The College has classified these positions on the benchmark for E.C.E. Worker "A" in accordance with the C.A.A.T. Support Staff job evaluation manual. They assess the position as having an accumulated point total of 477 points which would place the position in payband 7 under the-collective agreement. Management Union ELEMENTS Rating Pts. Rating Pts. JOB DIFFICULTY C3 122 D4 171 GUIDANCE RECEIVED C3 104 C4 124 COMMUNICATIONS C3 84 D3 109 KNOWLEDGE TRAINING/EXPERIENCE B5 78 B5 78 SKILL 4 '47 5 61 WORKING MANUAL C4 18 C4 18 CONDITIONS VISUAL A5 3 B3 7 ENVIRONMENTAL C5 21 C5 21 TOTAL POINTS 477 589 PAYBAND NUMBER 7 9 It can be seen for the foregoing table that the parties are in agreement as to the appropriate core point rating for the factor of "Guidelines" Available in the element of Guidance Received; "Level of Contacts" in the element of Communications; the aspect of training and knowledge in the element of Knowledge; the aspects of manual effort and environment in the element of Working Conditions. The representative Grievors who attended the hearing in this matter gave a good explanation of their activities and assisted the Arbitrator in describing how the activities would tie into the key word phrasing of the Job Evaluation Programme. The Arbitrator wishes to emphasize particularly to them, but also to the other Grievors who were not present, that in exercising his judgement in making the determinations in this award what is being done is an evaluation of the core duties of the job. The Arbitrator is in no way reflecting on the performance of these or the other Grievors' actual work performance. Nor is there a derogatory comment on their sound and thorough presentations at the arbitration hearing. The Arbitrator believes that the College considers all of the Grievors to be doing excellent work. It is satisfied with their contribution to the College. The parties do, however, disagree aS to the appropriate level of pay which the Grievors ought to receive. The Union in it submissions indicated that it agreed with the Position Description Forms (PDFs) fried for the position. There is a accordingly no issue in this arbitration proceeding as to the accuracy of the PDFs. -5- CORE POINT RATING and JOB EVALUATION FACTORS 1. JOB DIFFICULTY; COLLEGE C-3; Union D-4 (i) Factor of Complexity - College is at C; the Union is at D The Union asserts that the complexity level for this position is at D, whereas the College asserts that it is at C. The D level of complexity of work involves: "...the performance of varied non-routine complex tasks that normally require different and unrelated processes and methods." The Union and the Grievers submit that the fact that the Grievers perform their work with people in a variety of age ranges, personality needs and interests means they perform non-routine complex tasks. It is necessary to use different and unrelated processes and methods of response. This, combined with a simultaneous activity going on for 15 weeks of the year in the DayCare centre when it is used as a Laboratory for the College students enrolled in the academic programme, makes the job a non-routine job requiring different and unrelated processes. The C level of complexity of work involves: "...performance of various complex tasks that include both routine and non-routine aspects requiring different and unrelated processes and methods." The College submits that the core functions of the job are performed in a team-work environment -6- in which the employees duties are to supervise the children and to maintain a quality, safe learning environment for them. To do the job, but not necessarily at the core of the job, also involves role modelling for the students in the E.C.E. programme. What the employees do is apply knowledge and experience to various routine and some non-routine aspects of their job involving either interaction with the youngsters or the College students. The tasks are complex but not non-routine in the submission of the College. It was submitted that the behaviour patterns of the children are to a degree predictable and within parameters of normality related to the growth and development of various age groups. There is some degree of exercising of unrelated processes and methods but not to the extent of level D. The difference between the D and C levels of complexity is that the complex tasks will from time to time include both routine and non-routine aspects in level C whereas the tasks themselves are to be non-routine in level D. The Arbitrator finds that a child on arriving at the DayCare centre will be in various differing moods and state of composure depending upon the home environment from which they have come and what has transpired there prior to the arrival at the DayCare centre. Thus, the day begins on a non-routine basis and may involve reasonably complex tasks in identifying how to deal with the child and their care on any particular day. That will not be a repetitive process from day to day although it may be over longer time spans. It is, therefore, a very fine judgement call to determine whether the non-routine nature of the Grievors's duties is such that they are applying knowledge and experience to "non-routine complex tasks" which is level D as opposed to merely "complex tasks" which is level C. There is no doubt in the Arbitrator's mind that the work here involves non-routine -7- tasks. The 'tE.C.E. V/orkerts'~ activities, both with the children and the students require different and unrelated processes and methods. It is particularly this last feature which means that from day to day there may be complex tasks from the outset. These individuals are dealing with the dynamics of human relationships for two particularly difficult age groupings. The Grievors have to respond to both students and parents in a careful and thoughtful fashion particularly as that response may relate to the conveying of constructive criticism or remarks which the recipient might deem to be uncomplimentary to themselves or their offspring. The Arbitrator in exercising his discretion and judgement in trying to make the determination on this aspect of the matrix does rely to some degree on his determinations in the Sheridan College award dated October 4, 1990. That award also involved the classification of the E.C.E. workers at a different College in a Lab DayCare centre. While each Collegets activities; style of management; and the activities of the employees ought to be judged on their own merits in relation to this process, the process is a provincial one arising out of a provincial collective agreement and an across-the-province classification system. When there are no compelling local reasons for different action, and the Arbitrator is in a position of being required to make a very close judgement call; then there is a benefit to all parties across the system in the Arbitrator being consistent in making that judgement call. Therefore, for all of the reasons set out which relate to the particular work at Northern College together with this consideration of the Arbitratorts own prior determinations the Arbitrator finds that the Union rating for complexity is correct. (ii) Factor of Judgement - College at 3; Union at 4 The parties also disagree concerning the judgement, factor within the element of the -8- job difficulty matrix. The Union asserts that the level of judgement required is that of level 4. The fourth level of judgement is described on the level of job difficulty matrix as: "Duties performed require a considerable degree of judgement. Problem-solving involves handling a variety of conventional problems, questions or situations with established analytical techniques." The College asserts that the judgement factor in the element of job difficulty ought to be at level 3. The level three description reads: "Duties performed require a moderate degree of judgement. Problem-solving requires the identification and break-down of the facts and components of the problem situation". The assertion of the Union is that the appropriate level is 4 because these employees must exercise judgement w/th respect to the child, students and parents. They deal with problems using established analytical techniques. They also use make spontaneous decisions in discipline; deciding when to step in and what type of discipline to use. They must make careful judgement decisiorus about when to intervene w/th the students and what to do if they withdraw them from the interaction with the children to ensure a minimum of disruption to the children and no embarrassment or difficulty for the student. The College in contrast asserts that the level is properly 3 because the degree of judgement required is only at a moderate level. They further identify the fact that problem-solving involves identification of facts and determination of characteristics and traits as as result. The behav/our patterr~ are predictable within defined parameters which means that the judgement is less. The judgemental element of this job is difficult to place on the judgement, job -9- difficulty matrix, because the matrix does not deal with human interaction in its descriptive words of the activity. This difficulty was pointed out in the previous award of this Arbitrator in the Sheridan College award, supra. It is accordingly very difficulty to determine with precision at which levels these individuals ought to be rated. The difference between the levels which the parties select is the degree of judgement which is required. In the case of the College they assert that it is merely moderate judgement, and in the case of the Union they assert that it is a considerable degree of judgement. The behaviour of young children is perhaps less complex than that of older children or adults. It could be ~aid that judgement in relation to them might be only of a moderate nature. The individuals are trained to identify behavioural traits and the causes or reasons for them. Having done this identification they apply their knowledge and experience in order to adapt the behavioural traits to the activity in which they are engaged or encourage the child to modify their behaviour. Between the two levels the better fit seems to be the fourth level in that the problem-solving involved with these children at the core of the job, involves handling a variety of correctional problems as well as reinforcing behaviour using established analytical techniques which they have learned. It is the techniques which place it in the fourth level rather than the third level and, therefore, leave the Arbitrator with the conclusion that it ought to be considered that judgement is at the "considerable level" rather than merely the "moderate level". The interaction with parents also requires a degree of maturity on the part of the worker and careful judgement as to what information to convey and the manner in which it is to be conveyed to the parent. That does require considerable judgement not merely moderate judgement. These employees must also exercise careful and considered judgement in the course of acting as role models and demonstrators to the students. -10- When all of the foregoing is combined with the fact that the job description of the on-the-job difficulty matrix does not involve human interaction; and, the Arbitrator's previous statements about arbitration consistency when exercising close judgemental determinations in the absence of clearly defined local reasons for variation; have all lead the Arbitrator to conclude the the appropriate level in this case is level 4. Therefore, it is concluded that these employees are working at level 4 with respect to dealing with the children, the students and the parents. (iii) Conclusion with Respect to Job Element The Arbitrator confirms the job difficulty to be D-4 which is that of the Union. 2. GUIDANCE RECEIVED; COLLEGE C-3; UNION C-4 (i) Factors of Guidelines The parties are agreed that the level of guidelines available ought to be level C. (ii) Factor Nature of Review - College 3; Union 4 The Union asserts that the nature of the review for the element of guidance received is at level 4. Level 4 involves work assignments which are: "... subject to a general form of review for achievement of specific objectives and adherence to established deadlines". -ll- In contrast the College submits the nature of their review ought to be al level 3 where work assigranents are: "... intermittently and/or periodically checked for quality". The Union submits the reason for level 4 is that the employees work as a team and do not receive daily, weekly or even monthly job performance instructions. What is to occur daily and through the term are developed by consensus and implemented following discussion and concurrence with all of the employees involved. It was further submitted that the only managerial review is at an annual job evaluation process. The College submits that a good deal of the instruction and daily events are undertaken with the supervision of the Supervisor. They also submit that there is a frequent review of performance in the job through the daily evaluation by parents of the good humour and general state of the child when they are picked up from the centre. There is as well more periodic assessment of their performance through the students being present in the Lab and from time to time faculty or others. On this aspect of the College's submission the Union is adamantly opposed to these sorts of reviews as being what is contemplated within the matrix. The Arbitrator finds that these individuals work within an environment where they are interacting with the programme Supervisor. It does not matter that these individuals are members of the bargaining unit and also E.C.E. workers at a higher level. This is a degree of supervision, not in the traditional management sense where there is an ability to discipline, reprimand or take other action with respect to the individuals; but, in the sense of a collegial -12- co-operation in an educational aspect and a DayCare aspect. This ongoing assessment of performance in the sense that there is a check on what has happened to the children through the observations and reaction of parents, students and others who may be in the Lab does serve as an ~mplicit check on an individual's job performance. The Arbitrator finds that these employees never have work assignments which are subject to a general form of review for achievement of specific objectives and adherence to established deadlines. It is an intermittent and periodic check and the better fit in terrn~ of the nature of review descriptions iz at level 3. Therefore, the Arbitrator determines that the appropriate level of the nature of the view is to be that at which the College rated the position; level 3. (ii) Conclusion on Gu/dance l~eceived Element The Arbitrator concludes that the College ranking is correct and that these positions ought to be rated at C-3. 3. COMMUNICATIONS: COLLEGE C-3; UNION D-3 (i) Factor of Level of Contacts The parties are in agreement that the level is at 3. (ii) Factor of Purpose of Contacts -13- The Union asserts that the contacts which the individuals have with the children requires an ability to communicate to them when they are young and highly impressionable and can be significantly affected by the actions of the individual. In communicating with students about their Lab performance they must be both supportive and corrective which requires tact, diplomacy and persuasion. They must also on a daily basis be attentive to the special needs of the child and the parent and be careful as to how they communicate difficulties with the child's behaviour and other developmental aspects of the child's progress. It was further pointed out that a great deal of the communication process with the students is done in the DayCare centre at a time when the worker's attention must be divided between what is being told to the student and the supervisory duties they have with respect to the children. For these reasons they submit the purpose of the contacts is at level D. The description reads: "Work involves contacts for the purpose of problem identification and solution with respect to matters of considerable importance requiring tact, diplomacy and persuasion". It was the submission of the College that the core of the job is dealing with children and the purpose of the contact with the children is to provide guidance and instruction. That is the primary communication and the purpose for it. For the students the contact is to provide technical advice. Therefore, both aspects of the job are at level "C". The job matrix description reads: "Work involves contacts for the purpose of providing guidance, instruction or technical advice or for the purpose of explaining various matters by interpreting procedures or policy." The factor of skil/ within the knowledge element level is submitted by the Union to be at level 5. The job evaluation manual describes level 5 as work which requires: tr... the ability to organize complex statistical information and to understand and to apply elementary principles of a science or professional discipline. May operate very complex electronic instruments, laboratory or computer equipment,t. The College submits that the appropriate level for the skill factor within the knowledge element is 4. The work required at that level is described in the job evaluation manual as: "...the ability to organize statistical information and to understand elementary principles of a science or professional discipline. May operate complex computer, electronic instruments or laboratory equipment". The difference between level 4 and level 5 is that in level 4 one does not have to be able to apply but merely understand elementary principles of a science or professional discipline. It is the submission of the Union that the appropriate level, is 5 because there is a high degree of interpersonal and communication skills involved. The Union submits that the individuals are applying elementary principles of a professional discipline. The work also has a teaching element when dealing with College students although it is teaching by demonstration. The College submits that their work does not involve a science or a profession. The Arbitrator finds that these workers must engage in problem identification and solution both with respect to the children and the students in the Lab. There is no doubt that their action with the children shapes and affects the child's personality development and other characteristics. Their activities also have a significant impact on the practical aspects of the student's learning. The purpose of their contact with the parents is to explain their own actions through the day and describe the child's actions. They must be careful to deploy tact, diplomacy and persuasion in dealing with all constituents of their responsibility, children, students and parents. The level of the contacts and thc purpose of them Ls more appropriately described at the D level than at the C level. (iii) Decision on Communication Element The Arbitrator concludes that the Union ranking ks correct and these individuals ought to be rated at D. 4. KNOWLEDGE (i) Element (a) of Training/Experience The parties are in agreement with respect to this factor both assessing it at B-5. (ii) Element (b) of Skill - College at 4; Union at 5 -16- They recognize that there is a certain level of skill. They submit that the best fit would be at level 4. As the Arbitrator noted in the Sheridan College decision it is not easy to utilize this matrix because of its association with technicians and laboratories and the lack of reference to individual human relations and interaction in the verbal description of the skill component. It is necessary therefore, to apply here what is known as the best fit rather than a precise application of the language in order to do the rating. The Arbitrator finds that the College students are there for the purposes of receiving a practical lab. The workers are not teaching the students but demonstrating the activities about which the students are learning. The workers provide feedback and do some description of the work of the students which is evaluated by Faculty. In the absence of any specific local information the Arbitrator feels compelled to be consistent with the determinations made in the Sheridan College decision which concluded that the best fit was more appropriate to that of level 4 than that of level 5. Therefore, the Arbitrator confirms the rating of the College. 5. WORKING CONDITIONS 1. Manual Effort Element The parties are in agreement with respect to this element at C-4. 2. Environment Element -17- The parties are agreed with respect to this element at C-5. 3. Visual Element - College at A-5; Union at B-3 The visual strain aspect of this factor at level A is described as normal visual concentration required. The Union submits that the visual strain is at level B, moderate visual concentration required to focus on small areas of objects for short periods of time, i.e. up to one hour. The parties are apart because the workers have a period during the day in which the children are at rest. When that occurs the lights at the facility are dimmed. That being the least active part of the day with respect to the children it is frequently utilized by the workers to discuss the evaluations and other aspects of the demonstration function with students. That, of course, only occurs fifteen weeks out of the fifty-two weeks of the year. The workers also indicate that they use this time to prepare work and planning of the activities of the centre. The agreed upon position description indicates that at least eighty percent of the time the normal visual concentration is required. The Arbitrator concludes that this is the appropriate visual strain aspect. It is, therefore, concluded that the visual strain is at A. The assessment of the College is accepted in that regard. The other aspect of the matrix is the prevalence. The Union submits that the prevalence is at level 3 which is 10 to 20 percent of the time. The College submits that it is at level 5. The Union submission at level 3 is only in connection with its submission on the -18- visual strain element. If it were not; then level 3 in A aspect of the visual strain would result in no points being awarded. Therefore, the Arbitrator concludes that the appropriate reading for this factor is at 5. (i) Conclusion The Arbitrator concludes that the ranking of the college is correct and that these individuals ought to be rated at A-5. CONCLUSION The rankings established by the Arbitrator would result in an accumulated point total of 551. That ranking involves a change in the pay band from seven to eight. The E.C.E. "A" classification at Northern College will accordingly be re-classified by this award as Early Childhood Education Worker atypical payband 8. Therefore, the grievance is allowed to that extent. It is ordered that the College re-classify the Grievors and compensate them for any monies and benefits owing retroactive to the date set out at the outset of this award, together with interest under the principles established by this award. The Arbitrator will remain seized of the determination of the appropriate compensation owing to the Grievors for a period of sixty days from the date herein. The College is directed to determine the amount that is owing and to make payment to the Grievors within that time period. They are further directed to implement this award in respect of all of the other individuals occupying this classification who were not parties to this grievance and arbitration proceeding but may be affected by it. If the parties are unable to agree as to the amount that is to be paid to any individual affected by this aspect of the award they are to submit a request in writing to me within the time frame set out in order that I may convene a further hearing to make a final determination as to the amounts owing to any particular individual as a result of this award. If no written request to reconvene for the purposes of making these determinations is received within the sixty day time period the Arbitrator will no longer have jurisdiction to deal with this matter. Finally, I want to express my thanks to the presenters for a job well done. They worked hard in the preparation and written submissions for these proceedings as well as bringing a degree of skill and understanding to the arbitration process itself. The Arbitrator is indebted to them for their thorough, skillful and thoughtful presentations. My thanks. DATED AT LONDON, ONTARIO THIS 17thDAY OF APRIL, 1991. Richard H. McLaren Arbitrator 1483W ARBITRATION DATA SHEET - SUPPORT STAFF CLASSIFICATIONS COLLEGE NORTHERN COLLEGE' ' INCUMBENT PRESENT CLASSIFICATION EARLY CH~LD~OOD v.n~1CATION "A" woRKER AND PAYBAND SUPERVISOR JOB FAMILY AND PAYBAND REQUESTED BY GRIEVER POSITION DESCRIPTION FORM: 1. Position Description Form Attached 2. ~X~ Parties agree on contents of attached Position Description Form O_ER ~ Union disagrees with contents of attached Position Description Form SPECIFIC DETAILS OF THIS DISAGREEMENT ARE AS FOLLOWS: (USE REVERSE 'SIDE IF NECESSARY) - AWARD Management Union Arbitrator ELEMENTS Rating Pts. Rating Pts. Rating Pts. JOB DIFFICULTY C3 122 D4 171 D-4 171 GUIDANCE RECEIVED C3 104 C4 124 C-3 COMMUNICATIONS C3 84 D3 109 D3 109 KNOWLEDGE TRAINING/EXPERIENCE B5 78 B5 78 B5 78 SKILL 4 47 5 61 4 47 WORKING MANUAL C4 18 C4 18 C4 18 CONDITIONS VISUAL A5 3 B3 7 A5 3 ENVIRONMENTAL C5 21 C5 21 C5 21 TOTAL POINTS 477 589 55i PAYBAND NUMBER 7 9 8 ATTACHED WRITTEN SUBMISSIONS: ~ The Union ~ The College (Optional) SIGNATURES: FOR THE UNION FOR ~ANAGEMENT (Griever) - (Date) (Date) Hearing Date ~,. Award Date SIGNATURE