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HomeMy WebLinkAboutUnion 11-10-19IN THE MATTER OF AN EXPEDITED CLASSIFICATION ARBITRATION BETWEEN: ONTARIO PUBLIC SERVICE EMPLOYEES UNION Local 596 (hereinafter called the "Union") - and - RYERSON UNIVERSITY (hereinafter called the "University") - and - LEARNING SKILLS STRATEGISTS OPSEU File No. 2010-09C (hereinafter the "Grievor(s)") REPRESENTING RYERSON: REPRESENTING THE UNION: Richard H. McLaren, C.Arb. Caroline Riley, Manager, HR Consulting Monika Dacosta, Manager, Total Compensation Kella Loschiavo, Chief Steward Louise Lichacz - Local 596, President A HEARING in RELATION to this MATTER WAS HELD at TORONTO, ONTARIO on 11 OCTOBER 2011. AWAQn Union Local 596 brought a classification grievance under s. 34 of the Collective Agreement on behalf of the Learning Strategists employed at the University. In the grievance the Grievors assert that the Learning Strategist Position ("LS") is improperly classified under the "Joint Job Evaluation System and Job Evaluation Plan" ("JEF) appended to the Collective Agreement. The Grievors sought by way of the expedited classification arbitration procedure under Article 34.10, to have the position evaluated at position Grade 14. The University's Total Compensation unit had rated the LS position at 404 points (subsequently adjusted through the grievance procedure to 408 points), thus placing the position at Grade 13. The individuals, [ram Khan, Reed Hilton -Eddy, Chris Brierley, Robert Roseberry, John Hannah, Valerie Sonstegard and Marilyn Husbands, collectively the "Grievors", grieve that determination, disputing 5 factors, claiming the position ought to be rated at 447 points, making the position properly at Grade 14. The Grievors and the University have been unable to reach an agreement on the Position Description Questionnaire ("PDQ"). The Grievors consider that the PDQ currently used by the University does not adequately reflect their Job Description and take exception to the Rating Sheet and Job Title which was changed subsequently by agreement. If the grievance is successful, the Grievors seek to receive retroactive pay and benefits back to September 1, 2007. Background A grievance meeting was held on 22 June 2010, and as a result, the University agreed to amend the job title to "Learning Strategist" (referred to in this Award as the "LS") and agreed to amend certain references in the job description. LS's assign and coordinate the work of student staff and are not responsible for teaching. References to teaching or classes have been amended to reflect the facilitation of workshops. LS's are not required to interpret the results of psycho -educational and other disability assessments. It is the University's position that LS's do not make diagnoses, they develop customized learning plans. The position of LS has multi incumbents who are responsible for planning, developing, and evaluating programming for students to enhance academic and learning skills and place students in work groups or other settings to assist them in succeeding in their academic programs. Approximately 80% of the students who are counseled are from the general student population of undergraduates and graduate students. The remainder of students come from the Access Centre and other constituent parts of the University. The students who come to the LS do so of their own volition and the parties describe that as being self -enrolled. Of the original six sub -factors in dispute, only five (5) are now contested and will be discussed below. Factors in Dispute Each of the factors in dispute is dealt with below under separate headings. 1 . Experience: Ratings: University Level 4 / Union Level 6 The JEP contains the following description: This subfactor measures the amount of practical experience required to perform the job duties afterhaving considered the appropriate formal education and specialized training. This includes: a) experience in any related work or work in a lesser position which is necessary for performance of the job, and b) the period of training and adjustment on the job itself. It is the Union's position that seven of the current LSs were hired on the basis of the K job description as it stood in 2002. According to the Union, the current job description is more fulsome. The requirements of the position have changed considerably, requiring a more extensive skill set. It is also submitted that the PDQ does not give full weight to the experience required for this position. The Union also stresses the need to increase the amount of experience required to appropriately reflect the skill set and training needed. It is further submitted that in the grievance procedure, there was an admission by management that the completion of a Master's Degree was essential for the LS position. The JEP does not give credit to the Masters or Doctorate levels of educational qualifications. Thus, the Educational subfactor was set at the maximum Level 7, but that setting does not reflect the understanding of a Master's Degree qualification. The PDQ does not give full weighting for the education required for this position. On that basis, the Union submits that a much higher Experience subfactor such as Level 6 is justified. It is the University's position, that after assessing formal education and specialized training, the amount of practical experience required to perform the job duties must be assessed. The LS uses the results of psycho -educational and other disability assessments to develop learning strategies for an individual student. In so doing, the LS do not establish the analysis but rely upon the medical or other professional results for the assessment. The LS implements the assessments created by the various assessors. (i) Findings Under the JEP, the Education subfactor is determined first. It was agreed by both parties that the Education subfactor is Level 7, meaning the completion of a post- secondary degree program, plus at least one year of specialized training. Once the Education factor is set, the next step is to establish the Experience subfactor. The difficulty here is that the JEP is deficient in setting levels for post -university graduate education qualifications. Thus, the PDQ reflects that deficiency. The Union argues that the gap may be filled by setting the Experience subfactor at Level 6 which is a minimum of 4 years but 4 less than 5. An arbitrator's jurisdiction in Article 34 of the Collective Agreement is restricted by subsection 34.10 in clause (i). I do not have `jurisdiction to amend the Job Evaluation Plan". Therefore, I cannot correct the lack of educational recognition of the position. Article 34.10 (i) also precludes me from doing indirectly what I cannot do directly. I cannot, as the Union urges, adjust the subfactor of Experience to a higher level in an attempt to reflect the lack of the formal qualification in the Education portion of the factor. I do not have jurisdiction over this matter. The JEP needs correction by negotiation between the parties. I must assess the ratings on the basis of the plan as it is set out in the Collective Agreement. I turn now to assessing the Experience subfactor as it is in the JEP. There is no doubt that an individual LS will, over time, become better and more skillful at assessing learning strategies and developing customized learning plans for students. The more a LS performs the job, the more valuable the experience. The LS position is one in which skills will continue to develop over the working life of the incumbent. The "Rules of Application" contained in the JEP under this subfactor indicate that no consideration is to be given to "the maturing of the individual". Much of the evidence of the incumbents referred to their learning through experience doing the job. However, this subfactor is used to measure what experience is required to perform the job as a new hire by turning the theoretical knowledge and specialized training required to qualify for the job into a set of practical skills. These skills would then be applied to resolve problems and implement techniques and methods to perform the job. Nothing in the evidence presented by the incumbents at the hearing indicated to me that more than a minimum of two (2) years was required to be ready to take on the job of a LS. Therefore, I find that the position was correctly rated at Level 4 and reject the submissions of the Union on this subfactor. The Maximum Compensation unit of the University correctly rated the combined educational and minimum experience requirement. In reaching that conclusion, I must reject the submissions of the Union rating the Experience subfactor at a Level higher than Level 4. 5 2. Accountability— Finance/Material Loss: Ratings: University Level 11 Union Level 2 For this subfactor, the JEP contains the following description: This subfactor measures the responsibility for actions, as they pertain to people, resources and the Institute, in terms of impact on time, materials or finances, image and the safety and well-being of others. It is submitted by the Union that the LS can be responsible for: purchasing; signing and requisitioning cheques for items such as brochures and other materials with values in the multiple thousands of dollars. The LSs, therefore have a considerable impact on the finances of the institution. It was further submitted that the LS's access to technological equipment and all the podiums on campus could result in theft or damage of many thousands of dollars. On this basis, the impact of a LS's actions can potentially "cause a moderate or material loss" which is Level 2 in the JEP. It is submitted by the University, that there are always approvals required by either the home or client department involved. The LS does use the University podiums and other technical equipment but the LS is not responsible for the security of either of them. The Coordinator, Learning Success, is ultimately responsible for the security of all of these items. Therefore, in terms of the JEP the consequences of the actions of a LS "can cause a minimal monetary or material loss". (i) Findings I find that the LSs do have base line accountability for purchasing as well as their use of equipment. However, it is other individuals in the organization who are actually accountable. The LS maywell purchase items such as brochures and office supplies, but the LS must generally seek approval from another individual before he or she may finalize the transaction. While some of the testimony does suggest variations of this approach, I find that the best fit for most of the individuals in the position is as rated by the University. 0 The Union by its evidence, did not establish that the actions of an LS are beyond the minimal monetary or material loss. There were no examples in evidence of any potential or actual moderate or material losses that have arisen in the position. Therefore, I confirm that the Maximum Compensation unit of the University correctly rated the position at Level 1. The submissions of the Union that the position ought to be rated at Level 2 is rejected. 3. Accountability— SafetyMell Being of Others: Ratings: University Level 2 / Union Level 3 For this subfactor, the JEP contains the same description as quoted above. See 2. Accountability - Financial/Material Loss. It is submitted on behalf of the Union that the LS must be alert to situations where the student is a danger to himself/herself or others and assure effective referral is undertaken. Those students with disabilities must be dealt with in accordance with statutory provisions of the Province of Ontario. Thus, the LS is dealing with a vulnerable population. Lack of knowledge, expertise or sensitivity on their part can result in serious psychological setbacks and have an adverse emotional impact on students, particularly those with a disability. It was also submitted that a LS working with Access Centre students involves a level of awareness of psychological factors that, if ignored, could cause the students significant harm. For these reasons, it is submitted that the appropriate Level is 3 because a "significant degree of care is required to prevent injury or harm to others" in the LS position. Further justification was also suggested based on the fact that a LS is required to get a criminal record check. It is submitted on behalf of the University that much of the Union evidence shows that the LS needs to provide indirect care or action rather than direct care or action. The LS is required to refer a student to the care of a Counselor when there is a perceived danger to the student or to others. For these reasons, the University submits that the LS position is correctly assessed at Level 2. 7 (i) Findings The difference between Level 2 and Level 3 in the subfactor of Safety is that the degree of care required in the former is "moderate" and in the latter is "significant". The characterization of the degree of care is a judgment call I must make having a view to the information and testimony provided. The LSs do encounter students who may be a danger to themselves or to others. The LS must first identify the situation as one requiring intervention. Once identified, the LS is required to refer the student to the care of a Counselor. The evidence reveals that many of the LSs take a more interactive and personal role in this intervention and engage in follow up while it is not required in their position. While I think that it is admirable on their part, it is the position that must be rated and not the individuals in the position. The requirement in the JEP is simply for the LS to refer the student to a Counselor and nothing more. Of greater significance, since the role of the LS is to work with the student, is that the LS must cope with the student until he/she is ready to enter therapy and this could take some time. In those circumstances, a significant degree of care is required until such time as the student agrees to self -enroll in treatment with individuals beyond the LS, in the meantime the LS continues to work with the student. It is difficult to assess the frequency of these circumstances, but it would appear from the evidence I heard that it occurs more than on an isolated basis. Therefore, while I find it is a close judgment call, I accept the Union evidence and agree that this subfactor ought to be at Level 3 and not at Level 2 as ranked by the Maximum Compensation unit of the University. In reaching the foregoing conclusion, I did not take account of the fact that a LS, before being hired, must undergo a criminal record check. As I indicated at the hearing, this is not an element to be rated in the Safety factor. 4. Guidance Given: Ratings: University Level 3 / Union Level 4 For this subfactor, the JEP contains the following description of Guidance Given: This subfactor measures the level of responsibility for the direction and guidance of the work of other employees. It is submitted by the Union that the LS directs and guides the student (employee in plain parlance). It is submitted that they do so on a "regular, daily basis". With respect to the work study students who are employed by the University to implement strategies designed by the LS, the Union submits that the LSs develop the programming. It is submitted by the University that the LS position is not one of assigning or co- ordinating the work of others. It is submitted that the client students or work study students are not regularly receiving or implementing instructions from a LS. (i) Findings As was evident by their behavior at the hearing, the parties have dug themselves into a meaning of a single word "regular" in connecting with this subfactor. I find that while the duties of the LS do vary as the terms progress and the work does change to a degree in the summer period, what is still occurring on a regular basis is working to assign and co- ordinate different employees, being both work study students and students who have come to receive learning strategies. Once a student has self -enrolled and has bought into a particular learning strategy then the LS continues to see and deal with that person on a regular basis. I find that the Union has established that the better fit in terms of the two levels of the JEP under discussion is Level 4. For the foregoing reasons, I find that the University Maximum Compensation unit rating is incorrect and I find the position ought to have been rated at Level 4. 5. Effort — Mental: Ratings: University Level 3 / Union Level 4 This subfactor is described in the JEP as follows: " ... measures the extent to which the job requirements contribute to mental fatigue in terms of the length of mental, auditory or visual attention to detail requiring fixed or focused attention." It is submitted by the Union that the examples given were composites of various activities done by different strategists. In assessing the examples, the attention is continuous for more than 3 hours at a time within the meaning of "most days" which is more than 2Y2 days per week. It is submitted by the University that the LS received credit at Level 3 for the Working Conditions -Time Demands subfactor due to the fact that the position is frequently required to deal with time demands. The logical corollary of that rating is that fixed and focused attention is limited to a maximum of 3 hours and cannot cross the threshold into the Level 4 category of more than 3 hours at a time. (i) Findings The University raises a rathertechnical argument in connecting Working Conditions to Mental Effort in suggesting that there is a connection that precludes the Union submission. I do not find that to be the case. While these employees do rotate through the various phases of the job during the day and the week, that does not preclude a person rating the position from finding that for at least half of that total week, the LS's attention is fixed and focused for more than 3 hours at a time, albeit not necessarily in relation to the same activity of the job. The time testis now about how the individual does the job so that it might be a 3 hour activity but rather what is required of the individual to do the job. It is in this latter sense that I find that the LS's attention is fixed and focused. Therefore, I accept the submissions of the Union on the subfactor and their rating is found to be correct at Level 4. CONCLUSION Three subfactors, Accountability -Safety (2); Guidance Given (7) and Mental Effort (5) were established as being rated differently than that by the Maximum Compensation unit of the University. The incremental adjustments in points are in brackets. With the adjustments implemented by this Award the point total of 408 established by the Maximum 10 Compensation unit should have 14 points added to the total for a score of 422 points. The points range for Grade 13 is between 400-424 on the "Points Band" chart in the JEP. Therefore, while there is a higher points total established by this Award, it is insufficient to grant the remedy requested of a re-evaluation of the Position to Grade 14. The Grievance is partially successful in that the University is ordered to change its weightings in accordance with this Award. Otherwise the Grievance is ordered dismissed. DATED at LONDON, ONTARIO this 19th day of October, 2011. pjmz Richar H. McLaren, C.Arb. Arbitrator 11