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HomeMy WebLinkAboutTodd 98-11-17IN TI-IE MATTER OF AN ARBITRATION SHERIDAN COLLEGE OF APPLIED ARTS AND TECHNOLOGY ONTARIO PUBLIC SER I~CE EMPLOYEES UNION AND IN TIlE MATTER OF A GRIEVANCE OF MARILYN TODD Kevin Whitaker, Chair Jacqueline G. Campbell, College Nominee M.J. (Mike) Sullivan, Union Nominee Appearances for the College Larry G.Culver, Counsel Linda Berkovich, Director of Admissions and Recruitment Rosalie Spargo, Labour Relations Specialist Appearances for the Union Mary Anne Kuntz, Grievance Officer Jay Jackson, Local 245 Marilyn Todd, Grievor A hearing was held into this matter on September 10, 1998 in Oakville. AWARD What this Grievance is About This is a vacation scheduling grievance. The union complains that the college failed to respond in a timely fashion to the grievor's vacation request and unreasonably denied the request when it did respond. The union seeks by way of remedy, a declaration that the collective agreement was breached, a direction to the college to comply in the future and further vacation leave. The college concedes that the collective agreement was breached in that it did not respond to the grievor's vacation request in a timely fashion. The college denies that the vacation request was unreasonably denied and suggests that no remedy is required. For reasons which follow, the grievance is allowed in part. We find that the collective agreement was breached in that the college failed to respond to the grievor's vacation request in a timely fashion. A declaration is appropriate in the circumstances. 2 II The Facts The grievor testified on her own behalf. Ms. Linda Berkovich, Director of Admissions and Recruitment testified on behalf of the college. Most of the evidence is not in dispute. The grievor is a very experienced senior clerk in the Registrar's office at the Trafalgar campus of the college. By all accounts, her talents are highly regarded and valued. She is assigned to the team which deals with the college's continuing education ("con-ed") program. Work on this team is demanding for a number of reasons. It requires an in-depth knowledge of the various programs offered, an ability to work under significant time pressures, and good interpersonal skills. In 1996, the college laid off a significant number of employees. This resulted in quite a few senior employees with large vacation entitlements bumping into the Registrar's office. Many of these employees had no prior experience with the work done in this office. The workload of the Registrar's office is cyclical. There are peak times both before and following the beginning of academic terms where for various reasons, students are reassigned to different courses. At other times in the year, workload decreases. Staffing requirements fluctuate with workload. In early 1997, the gfievor and her husband were invited by a family member to spend the last two weeks of January 1998 in Florida. The grievor's husband is an employee in a company where there is very little flexibility around vacation scheduling. Once his vacation request is approved, he is locked into that particular time ~ame and may not subsequently change it. For this reason, the grievor and her husband were particularly concemed about making sure that they were able to plan the 1998 vacation to Florida with certainty and precision. Article 11.5 of the collective agreement establishes a number of time frames for the submission and approval of vacation requests. The first two paragraphs of that article are as follows: Vacation shall be as scheduled by the College. Employees shall be entitled to at least three (3) consecutive weeks of vacation, unless otherwise agreed. Employees shall indicate their preference, if any as to vacation dates no later than March 1 of the current year for the next vacation year (July 1 to June 30). The College shall confirm or deny, in writing, such vacation requests by March 15. The College may, however, schedule vacations at any time and will consider requests by employees, consistent with the College staffing requirements and such employee requests will not be unreasonably denied The grievor knew that if she made her request for the last two weeks of January 1998 by March 1, 1997, the college was obliged to let her know if the request was approved by March 15, 1997. Co-incidentally, her husband had to make his vacation request by March 15, 1997. She assumed that the college would respond to her request by March 15, 1997 and this would allow her husband to book off the corresponding time. On February 26, 1997, the grievor submitted a vacation request on the prescribed form. The request was made for amongst other dates in the 1998 calendar year, the two weeks be~nning January 16, 1998. This was the two week period of the Florida invitation. Aside from identifying the dates requested, the grievor did not on the form, provide any detail concerning the circumstances of the request. In 1997 the grievor's supervisor Linda Berkovich, decided to put some guidelines in place to assist in vacation scheduling. Her idea was to deal with both the "peaks and valleys" pattem ofworkflow and the fact that there were differing levels of ability between employees as a result 4 of remover and experience. To this end, on February 28, 1997, Ms. Berkovich met with a group of employees in the Registrar's office to attempt to work out such a set of guidelines. By an internal college e-mail message of the same date to employees in the Registrar's office, Ms. Berkovich communicated the guidelines that were to govern future vacation requests. These consisted of general guidelines as well as specific guidelines that were to apply to particular teams. The general guidelines indicated that while vacation scheduling would be done according to both the general and specific guidelines set out in the e-mail, there would be "room for individual consideration for situations that fall outside of this schedule...". Under specific guidelines, employees on the con-ed team were precluded from taking any vacation during the period around the beginning of academic terms until the end of the third week of classes. As well as providing these guidelines to employees, Ms. Berkovich indicated that requests already submitted were being held and that employees should review them to ensure compliance with the guidelines before being resubmitted. New requests were to be consistent with the guidelines. Finally, the memo indicated that requests would be reviewed and responses provided by the March 15 deadline established in the collective agreement. Under the specific guidelines set out in the e-mail of February 28, 1997 which applied to the con-ed team~ the grievor's vacation request would not be permitted. Absent special circumstances that would exempt the application of the guidelines, vacation time was not permitted for the con-ed team during the three week period following the commencement of classes. The grievor's vacation request fell within this time frame.. The direction from Ms. Berkovich in the memo of February 28, 1997 was that requests which were inconsistent with the guidelines be withdrawn and re-submitted in a congruent form. For some reason which remains unexplained, the gfievor was not sent, nor did she receive a copy of the e-mail of February 28, 1997. All other employees in the Registrar's office were sent and received a copy of the e-mail. On March 6, 1997, Ms. Berkovich sent a further e-mail to staff in the Registrar's office. In this e-mail, she indicated the following: In reviewing my notes from our vacation task force meeting, I note that I omitted one exception recommended by the group. This applies to the CE Team only: 4.2 CE Team In addition to section 4.1 above, CE Team members must be on site for the period around the registration cycle for each of the three intakes as follows: from the week prior to mail-in, fax-in registration to the third week of class... "CE" refers to continuing education. The grievor was sent and received a copy of this e- mall. Later in the day on March 6, 1997, Ms. Berkovich sent a further e-mail: I understand that there are a number of requests still to be finalized within the teams and they are not ready for my review tonight As I am away on vacation the week of March 10, I will review the requests as a whole and respond to you the week of March 17. The grievor was sent and received a copy of this e-mail. The grievor did not receive a response to her vacation request until March 21, 1997. By this time, her husband had been obliged to book off vacation time for the 1998 calendar year. As the gfievor did not as of March 15, 1997 have permission to take off the two weeks following January 16, 1998, her husband did not request those days as vacation. In the college's response to the vacation request of March 21, 1997, the grievor was denied her request for the two weeks beginning on January 16, 1998. According to Ms. Berkovich, the college's reasons for declining the grievor's request were simple. The college was unaware of any of the circumstances of the request at the time it was made and indeed until August of 1997. As a result, the specific guidelines dealing with the con-ed team applied. Ms. Berkovich assumed that all employees in the department had received the e-mail of February 28, 1997 which the college believed, reflected a reasonable accommodation of workload demand with employee preference. The grievance was filed on March 26, 1997. Step one, two and three grievance meetings were held between March 27 and April 29, 1997. The grievor is unclear as to whether she explained to the college the circumstances surrounding her vacation request during these meetings. Ms. Berkovich testified that the grievor did not provide this information during the meetings in March or April of 1997. In August of 1997 at a meeting with Linda Berkovich to discuss the grievance, it is agreed that the grievor did explain the circumstances behind her vacation request. According to Ms. Berkovich, the grievor in this meeting, suggested a settlement of the grievance by having the college permit her to take the single week of January 26, 1998 as vacation. In Ms. Berkovich's view, this was the first time that the gfievor had explained the reasons for her request to the college. The grievor does not recall who it was who suggested that this one week of vacation be granted nor if it was discussed in the context of the result being a settlement of the grievance. In any event, the grievor was in August of 1997, granted as vacation, the week of January 26, 1998. Unfortunately, this was still not sufficient to permit her to go to Florida with her husband. According to the grievor, even il'the college in August of 1997 had granted the two weeks of vacation that she had originally requested, her husband had locked into other vacation dates by this point and they would be unable to go to Florida. 7 III Ana~s~ The provisions of Article 11.5 of the collective agreement between the parties, govern vacation scheduling. The relevant portion of those provisions are set out earlier in this award. The first issue to determine is whether the college breached the provisions of Article 11.5 in replying to the grievor's request by March 21, 1998 and if so, should we declare that such a breach occurred. The last two sentences of paragraph one of Article 11.5 prescribe the time f~arne for employee requests and the college's response. It is clear that for requests made by March 1, the college's response is due by March 15. In this case, the gfievor's request was made before March 1, 1997. In her e-mail of March 6, 1997, Ms. Berkovich indicated that she would not be able to respond to vacation requests by the deadline of March 15, 1997. The grievor's request was responded to on March 21, 1997, six days after the deadline for responses had passed. By this time, the grievor's husband had requested other vacation days from his employer and the grievor had lost irrevocably, the opportunity to go with her husband to Florida in January 1998. Under Article 11.5, employees have the right to have a response to a vacation request by a particular date as long as their request was itsefftimely. This right permits employees to engage in precisely the type of planning exercise that the grievor and her husband were attempting to do. Ms. Berkovich testified that she mistakenly believed at the time of her March 6, 1997 memo that if she advised employees that she would be late in responding, that this would be adequate. In our view, absent agreement from the union, the college continued to be bound by the time frames for a response which are set out in the collective agreement. Accordingly, we find that a breach of Article 11.5 has occurred. The next issue is whether it is appropriate to issue a declaration to the effect that the college has breached the provisions of Article 11.5. Despite the concession that Ms. Berkovich now knows that she was mistaken in her belief that a response would be timely if employees were alerted to the fact of a late response, it is appropriate to issue a declaration in these circumstances. While we believe that Ms. Berkovich will not commit this error again, it is important to ensure that other persons are not similarly mistaken in the future. Accordingly, we declare that the college has breached the provisions of Article 11.5 in having failed to respond by March 15, 1997 to the grievor's timely vacation request. The second issue is whether the college's response itself was in breach of the collective agreement. Article 11.5 of the collective agreement describes the way in which employee preference for particular vacation periods will be balanced against the college's need to manage its workload. Aside from the issues of when requests will be made and granted, those principles are as follows: (1) employees shall be entitled to at least three consecutive weeks of vacation unless otherwise agreed; (2) vacation requests will be determined in a manner which is consistent with staffing requirements; (3) employee requests will not be unreasonably denied; (4) where there are conflicts amongst employees, respective length of service and staffing requirements will be considered. In this case, conflicts with other employees would not seem to be a factor. As a result, only the first three points described above apply. The parties differed on the appropriate test to be applied in determining whether the grievor's request was "unreasonably denied" to use the phrase of Article 11.5. In our view, this . difference need no be determined to decide the outstanding issue. In this case, the college has made it clear that particular weeks following the beginning of the academic term will not be available as vacation time for employees on the con-ed team. Ms. Berkovich testified as to the reasons behind this. In brief, it is the college's view that this is a period where workload is high and things need to get done with dispatch. During the period for which the request was made, the college believed that they needed the grievor's skills and talents. Although the grievor testified that in the past, staffwho had performed work in the registrar's office were in fact permitted time off during this period following registration, the union's evidence on this point is insufficient to call Ms. Berkovich's evidence on this point into question. We therefore accept her evidence on this point. The next part of the college's guidelines are that where there are special circumstances, the college will permit a departure from the usual rules which govern vacation scheduling. At the point of responding to the grievor's request, the college had no information concerning the circumstances of the grievor's request. This did not happen until August 1997 at which point, the grievor was unable to go to Florida even if her request were to be granted at that time. In our view, where the college had no information which would permit it to conclude that the gfievor should be treated any differently from other employees, it was not unreasonable for the college to apply their general and specific guidelines. For this reason, we find that the grievor's requests were not unreasonably denied. 10 The grievance is allowed in part. Dated at Toronto this 17th day of November 1998. K~taker, Chair "Jacqueline G. Campbell" I concur Jacqueline G. Campbell, College Nominee "Mike Sullivan" I concur M.J. (Mike) Sullivan, Union Nominee 11 In the matter of an arbitration between ST. LAWRENCE COLLEGE OF APPLIED ARTS AND TECHNOLOGY (hereinafter referred to as the College) and ONTARIO PUBLIC SERVICE EMPLOYEES UNION, LOCAL 418 (hereinafter referred to as the Union) Classification Grievance: Edna Porter Sole Arbitrator: Gregory J. Brandt Appearances: For the College: Pennie Car-Hams, Director, Human Resources Betty Boone, Director, Student Services For the Union: John Molleson, Vice-President, Local 318 Edna Porter, Grievor Hearing: Kingston, Ontario November 16, 1998 2 AWARD 1. Introduction and Background At the time of her grievance, dated September 23, 1996, the grievor was employed in the position of Invigilator working in the Test Centre/Library at the campus of the College located in Brockville, Ontario. She was classified as a Clerk General B, Payband 4. The grievor claims that she has been improperly classified and that she should be classified as Atypical, Payband 6. In order to understand the issues arising in this case it is helpful to set out briefly the chronology of events leading up to its referral to arbitration. Generally speaking the grievor's duties and responsibilities have been divided between the Test Centre and the Library. In the Test Centre she was responsible for administering various tests set by members of the faculty at the Brockville campus. Her library responsibilities involved her in various duties at the circulation desk as well as shelving of books and magazines. However, tl~ere have been significant changes in her PDF with respect to the amount of time occupied on those duties. On February 27, 1996 she was given a copy of a PDF stating that she performed various duties in the Test Centre for 95% of the time, the remaining 5% to be spent providing "regular duty assistance to library staff as assigned.". At that time the Library staff consisted of 2 people in the classification of Library Technician A and Ms. Sara Mannoll, a Library Technician B who was a group leader. Apparently, the distribution of duties as set out in the February 1996 PDF did not accord with the actual practice. At this time the Test Centre was open for 38 hours a week. However, statistics provided by the grievor indicated that from at least May 1996 3 to August, 1996 she spent on average approximately 22 hours/week in the Library covering for Ms. Mahnoll when she was absent. The rest of her work week was spent at the Test Centre. At all relevant periods when the gfievor was assigned to work in the Library there was also present in the Library another Librarian Technician B. During those periods that she was absent from the Test Centre, Ms. Mannoll as group leader assigned someone else to replace her. In September 1996 the College declared the Library Technician A positions redundant and reduced the hours that the Test Centre was open from 38 hours/week to 18 hours/week. On September 9, 1996 the College changed the gfievor's PDF to more accurately reflect the fact that her duties were equally divided between the Test Centre and the Library. At this time she was advised that the position kept its original classification of Clerk General B, Payband 4. Shortly thereafter, on September 23, 1998, the grievance was filed. Subsequently, the description of the duties and responsibilities in the PDF was altered slightly although without any change to the equal distribution of those duties as between the Test Centre and the Library. Essentially, what the revised PDF did was to expand somewhat on the Library duties and to break them up between circulation desk duties (broadly defined) - 30% and library maintenance (sorting, shelving etc.) - 20%. A comparison of that part of the grievor's PDF that deals with her duties in th~ Library with the PDFs of the two Library Technician A s who were declared redundant reveals that a substantial portion of those two jobs (approximately 70% in both cases) involved the incumbents in performing duties described in language that is identical to that found in the gfievor's amended PDF. 4 As a result of discussions in the grievance procedure the College altered its rating of certain of the factors and concluded that the position, as described in the amended PDF should be classified as Atypical, Payband 5. However, the grievor remained unsatisfied with that rating and the grievance was referred to arbitration. The Arbitration Data Sheet completed by the parties sets out their respective ratings for the various Job Evaluation Factors as follows: Factor College Union Level Points Level Points 1. Training/Technical Skills 3 52 3 52 2. Experience 2 20 2 20 3. Complexity 3 41 3 41 4. Judgment 2* 30 4 66 5.Motor Skills C2 22 C3 25 6. Physical Demand 2 16 3 28 7. Sensory Demand 2 16 3 28 8. Strain fi.om Work Pressures/Demands 3 28 3 28 9. Independent Action 3 33 3 33 10. Communications/Contacts 2 52 2 52 11. Responsibility for Decisions/Actions 2 26 2 26 12. Work Environment 1 10 1 10 PAYBAND/TOTAL POINTS 5 346 6 409 JOB CLASSIFICATION Clerk General Atypical · At the hearing the College took the position that the proper rating for this factor was level 3. The issues in dispute are not only the appropriate rating of the job factors of Judgment, Motor Skills, Physical Demand and Sensory Demand. This case is unusual in that there is also a dispute between the parties as to the appropriate Job Family. The 5 union takes the position that given the equal distribution of duties between the Test Centre and the Library it is not possible to place this position categorically in either the Library Technician Job Family or the Clerk General Job Family. Accordingly, in accordance with the Job Evaluation Manual, it claims that the position should be assigned to the Job Family "Atypical". 2. Duties and Responsibilities It has been indicated above that the duties performed by the grievor were equally divided between the Test Centre and the Library. It is appropriate to deal with those duties in greater detail having regard particularly to the factors in dispute. The PDF provides, inter alia, as follows: Position Summary The incumbent ensures that there is an invigilated test service for all students on behalf of faculty and other campuses and organizations. Ensures that tests and test results are maintained in a secure manner and that statistics are kept for all activity. The incumbent performs the routine clerical and reception functions associated with the library. Duties and Responsibilities 1. Ensures that admission, security, filing and invigilating procedures 50% are followed to administer tests set by the faculty and other organizations, including CAAT placement tests. Recommends, implements, f'me tunes and evaluates test room procedures on an on-going basis. Maintains current test files. Generates/maintains accurate statistical data relevant to test room use. Ensures that necessary supplies are available in the Test Centre. The incumbent is responsible for ensuring that completed tests are returned to the external organizations and for invoicing external organizations for testing services. 2. Participates in circulation desk activities by issuing, renewing, receiving 30% and discharging library materials; examining materials returned; reserving materials; issuing overdue notices; registering students, staff'and general public on library system; and processing mail and magazine claims. 3. Participates in LRC maintenance activities; sorting, shelving and 20% shelf-reading of library materials, assisting with inventories and preparing various usage/customer reports. The grievor works at the Brockville campus of the College. Both the Manager to whom she reports in respect of her Test Centre duties (Ms. Betty Boone) and the Librarian (who has overall responsibilities for the libraries at all three campuses of the College (Ms. Barb Carr) are located at the Kingston campus and spend a majority of their time there. At the Test Centre she is responsible for administering tests which have been set by approximately 40 full time and 40 part time faculty. These tests are brought to her by the faculty member to be stored by her in filing cabinet drawers located behind her desk. Although it may be the case that an entire class will write the tests at the same time, (in which event the grievor is expected to deny entrance to a student who shows up late for the exam where a student who has completed the test has already left the room) it is more common to have the tests written by the students at different times. The grievor estimated that on average the 30 places in the test room could be occupied by students writing as many as 15-20 different tests. Students report to the Test Centre, present their identification, are registered in a log book and are given the test to take into the room. One of the responsibilities of the grievor is to monitor the test and ensure that no cheating occurs. She does this by either entering the test room and walking up and down the rows (when she is not otherwise occupied at her desk registering another student) or by keeping watch over the students from her desk, either through the glass windows surrounding her office or by way of a 7 mirror that is placed in such a fashion that she is able to see the entire room. When students have completed their test they return it to her, she notes that the test has been handed in and places it back in the filing cabinet in the hanging file that is tabbed for this particular test. In the course of monitoring the tests she is frequently required to deal with questions from students arising out of mistakes in the tests themselves, eg. Missing questions, missing pages, spelling errors. When that occurs she will attempt to contact the faculty member but where, as is often the case, that is not possible, she is required to deal with the problem and advise the student what to do. If possible, she will herself correct the spelling error. If she cannot, she will advise the student to leave blank that. answer from the answer sheet. Where them are missing questions or missing pages she advises the students to complete what they can and makes a note on the tests advising the faculty member of the problem. The grievor spoke of various respects in which she came into personal conflict with the students. Where there was a mistake on the test itself students became agitated and upset (and would occasionally throw the test paper at the grievor upon handing it in). The most difficult problem had to do with dealing with cheaters. Except in open book tests students were prohibited from bringing anything into the test room. Where she observed a student cheating by, for example, looking at cheat notes, the grievor would approach the student diplomatically, ask them to explain their conduct and take away any notes that they had brought into the test room with them. In addition she would make a note on the paper to the faculty member's attention. Student reaction to her allegations that they had been cheating was, in some cases, 8 quite extreme, eg. Challenging her to "try and take it (i.e. the cheat notes) lady", throwing chairs or slamming doors so hard that they came off the hinges. Some other situations involving the grievor in some conflict with students involved her denying a student permission to take a test if he/she had arrived late and another student had already left, requiring a student to wait because all of the seats were then occupied, pressing a student to finish the test in the time allotted. The grievor performs several different tasks in the library. She retrieves returned books from the bookdrop, stamps the return date, sensitizes them, and places them (as well as other books that students have personally returned to the circulation desk) on a. book cart. At some point in the day she pushes the book cart to the stacks where the books are re-shelved. She also processes various items that come into the library periodically. Magazines are stamped when received, information is entered into a cardex file, they are "tattle taped" for security and shelved in the reading area. Documents kept in a loose leaf binder are kept current by remoxfing old pages and inserting new ones. Daily newspapers are stamped and registered and placed in the stacks. One of her daily duties is checking to see which books are overdue for that day, a task which requires her to go to the stacks to make sure that the overdue book has not in fact been returned and put in the stacks, and issue overdue notices. Once a month she does a printout of the overdue' books for the month. She also provides some assistance to library users with respect to the operation of the mandarin system, an on-line public access catalogue that directs students to the holdings of the library. In this respect she provides some instruction on the use of the 9 system, eg. typing in the subject to be searched and also assistance in directing students to that part of the stacks where the books are housed. However, she does not provide students with reference advise. That is provided by the Library Technician B in the library. 3. Decision The first issue to be determined is whether or not the position is atypical and one which must be core-point rated in order to arrive at the correct classification and payband. The College takes the position that, notwithstanding the equal distribution of duties and responsibilities between the Test Centre and the Library, and notwithstanding the fact that in respect of the Library duties, the grievor's PDF uses exactly the same language as that used in the PDF for each of the Library Technician As who were declared redundant, the position is still essentially a clerical one falling within the Clerk General Job Family. It argues that the duties performed by the grievor while in the library were essentially clerical and did not involve her in performing the core duties of a Library Technician A, duties which would include the offering of reference advice to library users. In the submission of the College assisting students wi.th the Mandarin system fell short of providing the kind of reference advice that would normally be provided by persons in the Librarian Technician classification. As for the fact that, according to the PDF s of the Librarian Technician A's, the incumbents in that position were occupied for 70% of the time with the same duties as the grievor, it was submitted that it was the remaining 30% of the duties (reference advice etc.) that brought them into that classification'; that while it may have been an expensive use of resources to classify them that way, the reference work had to be done - and paid for at the appropriate rate. The expedited procedure agreed upon for determining classification grievances 10 imposes certain restrictions on what the arbitrator can take into consideration. Although one of the purposes of the Job Evaluation Plan is to produce equity having regard to the various evaluation factors - and to that extent - would naturally require that comparisons be made between different jobs, Article 18.4.5.1 of the collective agreement restricts my power to that of determining whether or not the grievor's PDF accurately reflects the assigned job content and whether it is properly evaluated. Whether or not the Library Technician As were correctly classified and should, for example, have been placed in the Clerk General Family is not a matter that is before me. Nor, given the scope of the hearing, am I in any position to determine what precisely led the College to classify those positions as Library Technician A. I must assume for these purposes that they are correctly classified. Nevertheless, in the circumstances of this case, it does seem appropriate to me that I at least examine the PDF s of the Library Technician A for the purposes of determining the question ofatypicality. When I do that I cannot say with any confidence that this position falls clearly within one job family or another. It could either fall within the Job Family of Clerk General (positions involved in clerical or business machines operating either manually or electronically, or in combination with incidental typing or stenographic duties) or that of Library Technician (positions that perform a variety of technical and related clerical duties associated with the operation of a Library and Resource Centre). Even if it is accepted, as the College argues, that the functions performed in the Library are of a "clerical" nature, such functions when performed in the Library context could fall within the Library Technician A classification. Thus, it must be concluded that this position is one that is "truly atypical" and one which, according to the Job Evaluation Manual, must be core-point rated. 11 As noted there are 4 Job Evaluation factors in dispute: Judgement, Motor Skills, Physical Demand and Sensory Demand. I shall deal with each separately. Before doing so it is appropriate to address certain related questions. It is argued by the union that regard should be had for the fact that the grievor is required largely to work "in isolation" considering that both Ms. Boone and Ms. Can' are frequently absent from the Test Centre and the Library respectively; that this circumstance warrants a higher rating in respect of certain of the factors in dispute. I do not think that the circumstance of the grievor's having to work "in isolation" is a relevant consideration for the purposes of this factor. Under the Job Evaluation Plan the extent to which an incumbent in a position is required to work independently of direct supervision and without guidance or assistance is measured by the factor of Independent Action. In that regard it should be noted that both the College and the Union have rated that factor in the grievor's PDF at level 3 which is one level higher than that contemplated in the Core Point Rating Plan which lists the Clerk General B position as one of the benchmark positions for this factor and sets it at level 2. Thus, it would appear that the requirement that the grievor work "in isolation" has already been accounted for in the rating of the position and, for that reason, cannot be counted again. Thus, the proper level for the factor of Judgement must be determined irrespective of these considerations. Secondly, both the union and the grievor sought to emphasize that aspect of her duties, both at the Test Centre and in the Library, when she was put into positions of conflict with students. Again, under the job evaluation plan, those features ora job are typically measured under the factor of Strain from Work Pressures, Work Demands and, 12 in that regard, the grievor has been rated by both the College and the Union at one level higher than is suggested in the Core Point Rating Plan. That Plan indicates that the Clerk General B position is one of the benchmark positions for level 2; the parties have rated the grievor's position at level 3 for Strain. Thus, the grievor's is exposure to greater strain through being exposed to situations of conflict with students is already reflected in the rating for that factor and cannot be counted again. I mm to the factors in dispute. 1. Judgement. Although the Arbitration Data Sheet indicates that the College has rated this factor at level 2, it took the position at arbitration that level 3 was the appropriate rating. The union seeks level 4. The union bases its claim for a level 4 rating for this factor on the fact that the grievor is frequently required, without the benefit of consultation with the faculty member to make decisions respecting errors on the tests being written by students. It is agreed as a matter of fact that in no case have any faculty members ever expressed any concern either to her or to Management about how she resolved the particular problem before her and that her resolution of the problems was always welcomed. The union argues that these are all "judgement" calls warring a rating at level 4. The examples given of such judgment referred to by the grievor, viz, correcting spelling mistakes if possible, advising students on what to do if parts of a question or entire pages of the test was missing, do not strike me as involving the grievor in the use of "established analytical techniques" in the resolution of the problem. I fail to see how any 13 "analysis" is involved. Rather, what she does is "identifies" the nature of the problem (eg. missing question or parts of a question), advises the student to ignore the missing question or part thereof, and makes a note to advice the faculty member of the problem. Similarly, the role played by the grievor in dealing with student conflict over such things as cheating at the Test Centre or the assessment of library fines for overdue books essentially involves her in the administration of College policy with respect to these matters. To the extent that some tact and diplomacy is required to deal with the problem that is rewarded under the Communications factor which is not in dispute. However, as far as the factor of Judgment is concerned, there is, in my opinion, little in the way of "analysis" of the problem that is presented to the grievor. In my opinion the judgment exercised falls more closely under level 3, viz, "moderate" judgment where "problem solving involves the identification and breakdown of the facts and components of the problem." 2. Motor Skill Both the college and the union agree that the relevant motor skills used by the grievor are those described in level C, viz, "complex frae motor movement involving considerable dexterity, co-ordination and precision" with speed as a "secondary" consideration. Where they differ is in Prevalence", i.e. the amount of time When those motor skills are used. Whereas the College rates Prevalence at level 2 (10-30%) the union rates it at level 3 (31-60%) The PDF identifies "filing, collating and some keyboarding tasks" as the ones that require fine motor movement. It further indicates that the grievor is involved in filing and 14 collating for 50% of the time and in typing for 25% of the time. The union submitted that, in rating this factor, the College had failed to take into account the fact that the grievor had typing duties both in the Test Centre and in the librarian, that as such her "typing duties" taken together exceeded 25%. The difficulty with that argument is that it is not consistent with what is set out in the PDF which, as noted, states that the grievor is engaged in typing for 25% of the time. Given that the parties are agreed on the content of the PDF I must rate this factor by reference to what is stated therein. Thus, as the grievor is involved in typing duties, which would clearly be regarded as "complex fine motor movement" for 25% of the time, her rating in respect of that aspect of her job falls properly within level 2. The union also argues that the filing and collating duties, in which the griev°r was occupied for 50% of the time, qualify as complex fine motor movement. The particular tasks associated with filing and collating were opening and closing file drawers in the filing cabinet, retrieving test papers from hanging files (to be given to the student), sorting returned test papers, returning them to the hanging files, retrieving them from the hanging files to give to the faculty member. Given the large number of tests handled by the grievor (approximately 5,900) I have little doubt that this activity occupied a good portion of her time. Further, while it required the use of the fingers in locating the appropriate file and picking the test paper from it (or returning it to that file) - and was to that extent "fine motor movement" - it was not, in my opinion, fine motor movement that could be said to be "complex" or to require "considerable" dexterity. By way of comparison it bears little relation to the fine motor movement involved in typing. Thus, I am unable to include these duties among those for which "complex fine 15 motor movement" is required and accordingly, the proper rating for prevalence for this factor is level 2 - occasional - 10-30% of the time. 3. Physical Demand The College rates this factor at level 2, which according to the Core Point Rating Plan is described as "some" physical demand with "occasional" requirement for repetition or speed and with either "recurring light physical effort" or "occasional moderate physical effort". The Union seeks level 3, viz, "regular" physical demand with regular need for speed and repetitive use of muscles and either "continuous light physical effort", "recurring periods of moderate physical effort" or "occasional periods of heavy physical effort." The PDF describes the relevant duties and the times involved in those duties. As for the duties in the library it refers to "standing, walking and light physical effort, viz retrieving books, reshelving, circulation book handling) (60%) combined with occasional moderate lifting and pushing, viz, book carts, .materials processing, book shipments (20%) and the remainder of the time sitting at an operation station. (5%). The duties at the Test Centre are stated as requiring "movement from in and out of a sitting position as well as bending, stooping and pulling while retrieving and filing tests." However, curiously, the PDF says nothing about the amount of time involved in those duties. It is not clear whether these duties occupy the remaining 15% of the grievor's time. Nevertheless, for the purpose of this case I am prepared to assume that it does. The Core Point Rating Plan indicates (page VII, 13) that the terms "occasional", "recurring" and "continuous" should be taken as describing respectively the extent of physical demand required over "part" of the day, "most" of the day" and "all the time". In 16 this respect this factor differs from the Motor Skills factor in that, not only does it use some different terms (viz, recurring and continuous as opposed to regular and frequent) but it also does not assign particular percentages to these terms. It must be assumed that these different terms were chosen for a purpose and that, contrary to the union's argument, it is not necessarily the case that the percentages of times provided for the Motor Skills factor should apply automatically to this factor. Thus, in order for the position to be rated at level 3 for this factor it must be shown that the grievor is uses light physical effort continuously or "all of the time" or moderate physical effort for recurring periods or "most of the day." It is clear from the PDF that this is not the case. It states clearly that light physical effort is used for 60% of the time and (which is clearly not "all of the time" but which is "most of the day") and that moderate lifting and pushing occurs for 20% of the time, that is, "part" of the day. On this basis, I conclude that this factor is more properly weighted at level 2 which requires light physical effort for most of the day and moderate effort for part of the day. 4. Sensory Demand The College rates this factor at level 2 which, according to the Core Point Rating Plan, requires either "moderate" demand and "occasional" attention to detail or "considerable" demand with ""periodic" attention to detail. The Union rates it at level 3, viz; "moderate" demand and "frequent" attention to detail, or "considerable" demand with "occasional" attention to detail; or "extensive" demand with "periodic" attention to detail. Unlike the Motor Skills factor the Core Point Rating plan does not provide any percentages of time to help define the meaning of the terms, periodic, occasional and frequent. 17 The PDF states, with respect to this factor: Processing requisitions and filing demand moderate visual attentiveness. Student/teacher/public communications require auditory concentration. Report writing, checking student Ids, and filing cause eye strain. Must listen carefully to public, often interpreting between the lines, as to what the customer is really requesting. The percentages of time assigned to tasks involving sensory demand are: Paperwork, filing 50% Careful listening 50% The Union argues that the College's rating of the position ignores that half of the job in which the grievor is involved in the performance of duties at the Test Centre; that once those other duties become factored in the rating jumps from a level 2 to a level 3. I agree with that argument. When both parts of the job are considered there can be little doubt that the duties involve either moderate sensory demand with frequent careful attention to detail or considerable sensory demand with occasional careful attention to detail. However, the problem is that the PDF itself appears to ignore entirely the test Centre duties when it deals with Sensory Demand. I have no doubt that this is an oversight and should be corrected at some level. However, for the purposes of this arbitration, the parties have agreed to the PDF as written and, in that situation, I am required to base by decisions on that. I cannot rewrite the PDF to make it conform to the job as it is where the record indicates that the parties are in agreement on the contents of the PDF. Thus, based on the library duties only, the proper evaluation of this factor is, as the College maintains, at level 2. 18 I should add that even if I were to rate this factor taking into account the duties performed in both the library and at the test Centre, and rate it at level 3, the number of points obtained would not be sufficient to raise the grievor into the next payband. 4. Summary and Conclusion For the reasons indicated, the grievance is denied and the position is to remain classified as Clerk General B, Payband/4/.. ~. Dated at LONDON, Ont. this ~2~[/ day of ~/~~'-'P04~_ , 1998 GREGORY J. BRANDT ARBITRATION/MEDIATION SERVICES FACULTY OF LAW TEL: (519) 661-3350 UNIVERSITY OF WESTERN ONTARIO FAX (519) 661-3790 LONDON, ONTARIO N6A 3K7 E-mail: gjbrandt@julian.uwo.ca December 1, 1998 Mr. Roy Storey OPSEU 100 Lesmill Road NORTH YORK, Ont. M3B 3P8 Dear Sir Re: St. Lawrence College and OPSEU, Local 148 Classification Grievance: E. Porter It has come to my attention that there is an inconsistency between the concluding page of my award and the Arbitration Data Sheet. The notation on page 18 of the award that the grievor remains in payband 4 is a typographical error and should have read, as the Arbitration Data Sheet correctly indicates, that the grievor remains in payband 5 - which is what the College itself had rated the position. I would be grateful if you would replace the attached amended page 18 to your copy of the awed. }re~9~' J. ~randt ARSITP T ON DATA S.EET- SUP.O.T STAFF CLASSIF,C^T, ON College: ~/_.Z~,c~I~:A/(:L-'"' Incumbent: ~'-7~.-V/~ ?O~-i'-Et"2,... Supervisor: 3~='r'~' 7 /3oo/tJ/_-" sent Classification: ~ Z~_~---7~Z- ~-~/~-~/z.~ 4_ ~ and Present Payband: z~ and Payband Requested by Grievor: A[ 'TI ~f ( ~ / '~-~' ~ ~ A~ ~ ~ Job Family 1. Position 'Description Form Attached 2. [] The parties agree on the contents of the attached Position Description Form OR [] The Union disagrees with the contents of the attached Position Description Form. The specific details of this disagreement are as follows: (use reverse side if necessary) FACTORS MANAGSMENT UNION ARSlTRATOR Level Points Lev,a Points Level 1. Training/Technical Skills ~ 2. Experience ~ 3. Complexity ~ 4. Judgement -~ 5. Motor Skills ~, 6. Physical Demand ~-- 7, Sensory Demand ~ 8. Strain from Work Pressures/Demands/Deadlines ~ 9. Independent Action ~ 10. Communications/Contacts ~_ 11. Responsibility for Decisions/Actions ~. 12. Work Environment / PAYBAND/TOTAL POINTS I I S" JOB CLASSIFICATION ~-/- ~-/-~ i.~. ~,~=/L/~-'-~ ,-/-¢,_. ~ ATTACHED WRITTEN SUBMISSIONS: [] The Union [] The College FOR THE UNION' FOR MANAGEMENT {Gr~evor) (Date) (College Representative) (Date) (Union Representative) (Date) .--OR AR.~TP~R'S USE: (Date of Hearing) (Date of Award) 93-12-09 b:datasheet.doc IN THE MAq-~ER OF AN ARBITRATION BETWEEN: NIAGARA COLLEGE - and - ONTARIO PUBLIC SERVICES EMPLOYEES UNION GRIEVANCES OF MICHAUD, TOPA & DEN BESTEN BOARD OF ARBITRATION: JANE H. DEVLIN CHAIR JACQUELINE CAMPBELL COLLEGE NOMINEE JON MCMANUS UNION NOMINEE WALLACE M. KENNY, FOR THE COLLEGE MAUREEN E. DOYLE, FOR THE UNION OPSEU NOS.: 98B309 - 98B316 (SUPPORT) 98B317 - 98B321 (SUPPORT) 98C284 - 98C290 (SUPPORT) HEARING DATE: JANUARY 27, 1999 The grievances which were filed by Yvonne Michaud, Maria Topa and Sue Den Besten were among a large number of grievances filed in July, 1996 as a result of a restructuring which took place at the College. For the most part, these grievances allege violations of the employment stability and layoff provisions contained in Articles 14 and 15 of the collective agreement. At the outset of the hearing, the College advanced a preliminary objection to the arbitrability of the grievances on the ground of timeliness. In particular, the College contended that the grievances were not referred to arbitration within the time limits set out in the collective agreement and, in the circumstances, must be regarded as abandoned. The parties agreed that it would be appropriate for the Bo,ard to determine this objection prior to proceeding with the hearing on the merits. The relevant provision of the collective agreement is as follows: 18. COMPLAINTS/GRIEVANCES 18.8 Arbitration Procedure 18.8.1 Disagreement In the event any difference arising from the interpretation, application, administration or alleged contravention of this Agreement has not been satisfactorily settled under the foregoing grievance procedure, the matter shall, then, by notice in writing given to the other party within ten (10) days of the date of receipt by the grievor of the decision of the College's Official at Step No. 3, be referred to arbitration as provided. As to the material facts, as indicated previously, in July, 1996, a large number of grievances were filed as a result of a restructuring which took place at the College. The parties initially agreed to extend the time limits for processing these grievances contained in Article 18 of the collective agreement until a meeting could be arranged in mid-August. Thereafter, in mid-September, Nicole Perreault, currently the Manager of Human Resources, wrote to the Union confirming an agreement to suspend the time limits for processing the grievances as long as discussions were taking place between the parties or until she advised otherwise. Subsequently, in May, 1997, the Union made a formal offer to settle the grievances and in July, a document was signed by the parties in which, among other matters, the College offered to provide career planning and training for certain employees who had filed grievances on the understanding that if this offer was accepted, the employees would withdraw their grievances. The document was signed by Carol Boettcher, Vice-President, Community and Learner Services, for the College and by Virginia Wilcox, the former President of the Local. The evidence indicates that although a new Local executive had been elected in June, 1997, members of the former executive, including the Chief Steward, Art Domenicucci, agreed to continue to deal with the grievances which had been filed in July, 1996. Based on the document signed by Ms. Boettcher and Ms. Wilcox, the Union contacted individual employees to advise them of the career planning and training to be offered and the College made arrangements for appropriate consulting services. In December, 1997, the College sent letters to the affected employees and information sessions were held later that month or in early January, 1998 to outline the nature of the career planning and training to be provided. Following these sessions, Mr. Domenicucci met with the employees to discuss the options available and to respond to questions. The evidence indicates that career planning sessions began on January 28, 1998. Ms. Perreault testified that at about that time, she advised Mr. Domenicucci that as career planning was beginning, the time limits set out in the collective agreement for processing grievances would "kick in" and there would be no further discussions between the parties. Ms. Perreault also testified that when it subsequently became apparent that not all grievances would be resolved by the offer of career planning, Mr. Domenicucci acknowledged that based on their earlier conversation, he was aware that time limits were in effect. Mr. Domenicucci testified that he had more than one conversation with Ms. Perreault regarding time limits and that she indicated that if grievances could not be resolved, time limits would have to take effect. He testified, however, that at no time did she specify a date on which this was to occur. He also testified that he would have 4 expected a date to be provided in writing and in these circumstances, would have requested that Ms. Perreault notify the current Union executive as he was primarily involved in attempting to resolve the grievances. Ms. Perreault also testified that once career planning began, she advised Meg Rose, the current President of the Local, that as career planning had begun, there would be no further discussions between the parties and that the time limits set out in the collective agreement for processing grievances would take effect. In this regard, Ms. Rose testified that she was aware in late January or early February that individuals who had accepted the offer of career planning were to withdraw their grievances and that grievances which were not resolved by this means were to be processed. Ms. Rose also acknowledged that she understood from Ms. Perreault that the time limits set out in the collective agreement were to take effect although she testified that she was waiting to be advised of the specific date on which this was to occur. Although Ms. Rose also acknowledged that in early February, Mr. Domenicucci advised her that Ms. Perreault had raised the issue of time limits, she testified that he made no reference to the date on which time limits were to take effect. In late February, however, Ms. Rose referred a grievance she had filed to arbitration and testified that there was no suggestion on the part of the College that the referral was untimely. She also testified that career planning was not a method proposed for the resolution of her grievance and although she was initially unable to recall any discussions between the parties regarding her grievance between July, 1997 and the referral to arbitration in February, 1998, she subsequently acknowledged that a grievance meeting was held in December, 1997. She testified, however, that the matter was not resolved at that time. She also testified that she referred her grievance to arbitration in February, 1998, not because she understood that the time limits set out in the collective agreement were in effect but rather because she was "tired of waiting" for the matter to be resolved. The evidence also indicates that in late January, 1998, there was discussions between the parties and an exchange of memoranda in an effort to resolve the grievances filed by Ms. Topa. However, on February 2, 1998, in a memorandum to Ms, Perreault, Ms. Topa expressed regret that an agreement could not be reached and suggested that Ms. Perreault contact her if she wished to discuss the matter further. Mr. Domenicucci testified that some time prior to February 2nd, he advised Ms. Topa that if her grievances could not be resolved, they would have to be referred to arbitration and indicated that Ms. Perreault had made reference to the time limits set out in the collective agreement becoming effective. Although Mr. Domenicucci also testified that he advised Ms. Topa that she would have 11 days within which to refer her grievances to arbitration once the time limits took effect, Ms. Topa testified that she did not believe that any reference was made to an 11 day period. She also testified that Mr. Domenicucci did not specify a date on which the time limits were to take effect. In any event, in a memorandum to Ms. Rose dated February 10th, Ms. Topa requested that her grievances be referred to arbitration. She testified that she took this step not because she understood that the time limits set out in the collective agreement were in effect but because there were no further discussions between the parties with regard to her grievances. Evidently, at about the same time, Ms. Michaud also requested that her grievances be referred to arbitration. However, Ms. Rose did not refer these grievances to arbitration at the time and testified that she could not recall why she had not done so. Ms. Perreault testified that she had a further conversation with Ms. Rose in which she indicated that it was the College's position that the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten had been abandoned. She also testified that although Ms. Rose requested that she confirm the College's position in writing, she neglected to do so. In early April, however, Ms. Rose contacted the Human Resources Department and spoke with Colleen St. Anand, a Human Resources Clerk. According to Ms. St. Anand, who made a notation of the conversation, Ms. Rose indicated that Ms. Perreault had agreed that the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten had been abandoned and a letter was to have been sent to that effect. Although Ms. Rose initially testified that the letter she anticipated from Ms. Perreault was to indicate the point at which the time limits set out in the collective agreement would take effect, she subsequently acknowledged that she did not dispute the evidence of Ms. St. Anand regarding the content of their telephone conversation. 7 Thereafter, in letters dated April 30, 1997, which were forwarded to the Union in mid-May, Ms. Perreault advised that as the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten had not been referred to arbitration within the time limits set out in the collective agreement, it was the College's position that they were abandoned. Ms. Rose testified that following receipt of these letters, she met with Ms. Perreault and Jim Garner, the Director of Human Resources, and that during that meeting, Ms. Perreault advised that the grievances were considered to have been abandoned as of February 10 or 12, 1998. The evidence indicates that subsequent to February 12th, two employees withdrew their grievances, the first being Angela Seddon, who withdrew her grievances on February 16th and the second being Ron Mottola, who withdrew his grievances on March 30th. Ms. Perreault testified that she did not object to the withdrawal of Mr. Mottola's grievances as she was aware that the Union was having difficulty contacting certain employees to arrange for the withdrawal of their grievances. She also testified that had Mr. Mottola attempted to refer his grievances to arbitration in late March, rather than withdrawing them, the College would have objected and taken the position that the referral was untimely. Ms. Rose testified that after meeting with Ms. Perreault and Mr. Garner, she contacted the Union's regional representative and at a meeting which was subsequently arranged, she was advised that she need not accept the College's position and could refer the grievances of Ms. Michaud, Ms. Topa and Ms. Den Besten to arbitration. Accordingly, on June 19th, Ms. Rose advised the College that she was referring the grievances filed by Ms. Michaud and Ms. Topa to arbitration and on July 6th and 10th, she informed the College that she was similarly referring the grievances filed by Ms. Den Besten to arbitration. The issue is whether the referrals to arbitration of the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten were untimely. In this regard, Article 18.8 of the collective agreement provides that in the event that any difference relating to the interpretation, application, administration or alleged contravention of the collective agreement is not satisfactorily settled during the grievance procedure, the matter shall be referred arbitration by notice in writing within 10 days of the date of receipt by the Grievor of the College's reply at step 3 of the grievance procedure. There would appear to be no dispute that the time limits for processing grievances under this collective agreement are mandatory and that a Board of Arbitration has no jurisdiction to extend the time limits set out in the agreement: see Humber College and Ontario Public Service Employees Union February 18, 1992 (Brown (unreported)) and Cambrian College and Ontario Public Service Employees Union July 9, 1997 (Simmons (unreported)). In this case, the evidence indicates that in September, 1996, the parties entered into an agreement to suspend the time limits set out in Article 18 for processing grievances which had been filed in July, 1996 as long as discussions were taking place or until Ms. Perreault advised otherwise. The evidence also indicates that discussions continued between the parties for a considerable period of time and that as a result of those discussions, career planning was implemented, beginning on January 28, 1998. Moreover, although discussions aimed at resolving Ms. Topa's grievances continued until February 2nd, there was no evidence of any discussions beyond that point related to the resolution of the grievances filed in July, 1996. At about the time career planning began, Ms. Perreault also spoke with Mr. Domenicucci and later with Ms. Rose and indicated that as there would be no further discussions between the parties, the time limits set out in the collective agreement for processing grievances would take effect. Although as pointed out by the Union, Ms. Perreault made no mention of a specific date on which this would occur, in the Board's view, the failure to make reference to a particular date cannot justify a delay of more than four months in the referral of the grievances to arbitration. Furthermore, while Ms. Rose acknowledged that she may have been aware in February that the College considered the grievances filed by Ms. Michaud, Ms. Topa and Ms. Den Besten to have been abandoned, in any event, she was clearly aware of the College's position by early April when she contacted the Human Resources Office and spoke with Ms. St. Anand. Nevertheless, she took no steps to ]0 refer the grievances to arbitration at that time, nor did she take such steps following receipt of Ms. Perreault's letters in mid-May, 1998. Although Ms. Rose testified that it was not until she met with the Union's regional representative that she understood that she was not obliged to accept the College's position that the grievances had been abandoned, we note that Ms. Rose had previously served as Local President for a period of six years. In any event, in the Board's view, Ms. Rose's understanding cannot excuse the failure to refer the grievances to arbitration for a period of more than four months. Moreover, Ms. Rose acknowledged that, in fact, Ms. Michaud and Ms. Topa requested that she refer their grievances to arbitration in February, 1998 and she failed to do so. In the Board's view, this case is also distinguishable from Fanshawe College and Ontario Public Service Employees Union March 7, 1994 (Bendel (unreported)) in which it was held that by its conduct, the college had waived its right to claim that the grievance was untimely. In this case, in contrast, we find no similar conduct on the part of the college and although Ms. Perreault may not have issued a notice in writing, she clearly informed Mr. Domenicucci and Ms. Rose that with the commencement of career planning and the end of discussions between the parties, the time limits set out in Article 18 would have to take effect. 11 Moreover, the Board is of the view that this case is distinguishable from Re Alberta Union of Provincial Employees and United Steelworkers. Local 5885 (1991), 23 L.A.C.(4th) 423 (T. Jolliffe), which was also relied on by the Union. In that case, although the union was aware that the grievor had agreed to an extension of the time limits for the employer's reply to the grievance, it did not advise the employer that the grievor had no authority to grant such an extension until the time period for the reply had expired. In these circumstances, the Arbitrator found that the union was estopped from taking the position that the reply was untimely. In this case, although the Union maintained that the College failed to advise it in advance of a particular date on which the time limits set out in Article 18 were to take effect, the parties agreed to a suspension of time limits while discussions were taking place or until Ms. Perreault advised otherwise. In fact, there was no evidence of any discussions between the parties subsequent to February 2, 1998. Moreover, even if Ms. Perreault's failure to mention a specific date on which time limits would take effect could justify some delay in the referral of the grievances to arbitration, it could not justify a delay of more than four months, particularly where the College's position with respect to the grievances was clear to the Union long before that time. In the result, the Board finds that the grievances were not referred to arbitration within the mandatory time limits specified in Article 18 and as the Board has 12 no authority to extend those time limits, we must conclude that we are without jurisdiction to determine the grievances. DATED AT TORONTO, this 24th day of March, 1999. Chair ~Jacqueline Campbell" College Nominee ~Jon McManus" Union Nominee