Loading...
HomeMy WebLinkAboutZan 00-06-290 fN O O A LABOUR ARBITRATION BETWEEN F�E�EIVE CANADIAN BLOOD SERVICES (HEREINAFTER CALLED THE "EMPLOYER1) ONTARIO PUBLIC SERVICE EMPLOYEES UNION LOCAL 106 (HEREINAFTER CALLED THE "UNION") ARBITRATOR APPEARANCES GRIEVANCE OF KATHERINE ZAN (HEREINAFTER CALLED THE GRIEVOR) B WELLING FOR THE EMPLOYER MS FRANCES R GALLOP FOR THE UNION MR RICHARD BLAIR HEARING HELD IN LONDON ONTARIO ON 06 JUNE 2000 AWARD The Grievor served as a "preceptor", providing on job training to new employees at blood donor clinics. The Union seeks payment of a premium to the Grievor for that work under Art 16.03(d) of the Collective Agreement. The issue is whether working as a "preceptor" qualifies as overseeing the work of other employees. The parties agreed the following statement of facts. The Grievor, Katherine Zan, is employed by Canadian Blood Services at its London Centre as a Clinic Assistant (II). As such, the Collective Agreement between the Ontario Public Service Employees Union and its Local 106, 205, 477, 5103 and the Canadian Blood Services which expires on March 31, 2001 is applicable to her. The Collective Agreement between the parties was signed on July 26, 1999. During the collective bargaining negotiations leading to the Collective Agreement, representatives of Canadian Blood Services made it. clear to the Union at the bargaining table that the training of staff was a part of the Clinic Assistant (II) job, and virtually every other job in the bargaining unit. On that basis, Canadian Blood Services proposed to include the provisions that incumbents "may assist with training of staff' under the duties and responsibilities of the Clinic Assistant (II) and most other positions in the bargaining unit. The Union accepted the Employer's proposal and the Collective Agreement was amended accordingly. 4 During the bargaining for the Collective Agreement, the Employer also proposed the inclusion of what is now Article 16.03(d) in the Collective Agreement, namely, provision that: 16.03(d) Effective the date of ratification of this Agreement, whenever an employee is assigned by the Employer the additional responsibility to direct or oversee work. of other employees within their classification, she shall be paid a premium of 90c per hour or portion thereof for such assignment in addition to her regular salary. In order to be hired as a Clinic Assistant (II), an applicant must have completed a community college program related to phlebotomy and have one year of experience in phlebotomy or equivalent as per job description. Newly -hired Clinic Assistants at Canadian Blood Services at the London Centre go through a six week in-house training period. The training includes classroom instruction directed by a trainer, and includes instructions on standard operating procedures and Centre operating procedures pertinent to the tasks that the Clinic Assistant will be performing, namely: "Registration and tech" (registration of the donor and pricking the donor's finger for doing a haemoglobin count and blood typing); Phlebotomy (vene puncture); and Preparation table (procedures related to receiving the bag of blood after the donation is completed and processing the blood). By the time the new Clinic Assistants go into actual donor clinics, they have received classroom training on the necessary procedures, and will have practised the procedures in a classroom setting. When the new Clinic Assistant is ready, they (sic) will be placed in actual blood donor clinics, paired with a "buddy" or "preceptor" to obtain further practice in the necessary skills. The practice of pairing trainees with a "preceptor" as part of their training has been in place at the London Centre since at least 1998 and is an extensive practice at the centres covered by the Collective Agreement including London. The new employee will be certified as a Clinic Assistant following the preceptor training, when a trainer (not a preceptor) signs off that the employee is ready. 9 The Griever has been involved in precepting at least since 1998. She volunteered in 1997 to perform that role, and subsequently took preceptor training. 10 As a preceptor, the Griever does her Clinic Assistant (I1) work with a trainee at her side, and "keeps an eye out" as the trainee performs procedures. She does not schedule or discipline the trainee. I 1 The Charge Nurse at each blood donor clinic in charge of the clinic has responsibility for the direction and supervision of Clinic Assistant trainees and every other employee working at the clinic. There is always a Charge Nurse at every clinic. 12 The only documentation which a preceptor will fill out in relation to a trainee is a sheet regarding the trainee's performance of phlebotomy. A sample sheet is attached as Exhibit 2. [Note: it was entered as Exhibit S] 13 The instant grievance, filed in December 1999, is the first grievance to be filed claiming entitlement to a premium under Article 16.03(d) of the Collective Agreement. 14 The Union signed a Memorandum of Understanding in December 1999 with reference to the Toronto Centre whereby it expressly acknowledged that there was no premium for on the job or buddy training. The Toronto Centre is covered by the same Collective Agreement as the London Centre. 15 Either party may call evidence to amplify or clarify these agreed facts. The parties called witnesses to give further evidence. The Grievor explained the details of the "preceptor" role. She volunteered for the role, then completed a course before she began in 1998. The "preceptor" concept is common to most classifications in the bargaining unit. In the Grievor's classification, it involves helping ensure that a new employee follows the prescribed procedures at blood donor clinics. The new employee will know the theory learned in classrooms, but is then observed closely by the "preceptor" while putting the theory into practice. Sometimes a "preceptor" will demonstrate the proper technique, or answer questions. Mostly the task is to observe closely, to ensure that the new employee is following procedure and doesn't make potentially fatal errors. Eventually, as the new employee gets more familiar with the work, less observation is required. The Grievor agreed on cross-examination that her "Position Description" set out in Schedule 13- 5A of the Collective Agreement was accurate. Under heading "III Duties and Responsibilities", it says "Incumbent may be assigned to do some or all of the following responsibilities". A total of 17 different types of tasks are described. Number 16 is "May assist with training of staff'. I note that under heading "IV Supervision Exercised" both "Number supervised directly" and "Highest level supervised" are said to be "Nil". Thus, assisting with the training of staff is work that falls within the Grievor's job description; supervising other employees is not. I agree with Ms Gallop's submission that the premium is payable only in a situation where four pre -conditions are met. The four are set out in Art 16.03(d): whenever an employee is [i] assigned by the Employer the [ii] additional responsibility to [iii] direct or oversee work of other employees [iv] within their classification, she shall be paid a premium..." [numbers and emphasis added]. The Union would have to prove all four to win this case. The most difficult point here is the second. Was the "precepting" work done by the Griever an additional responsibility. The only evidence directly on point was the Grievor's suggestion that she was "assigned" to perform the "preceptor" role. Exhibits 8, 9, 10 were memos relied on by the Union to support that point. They don't really indicate much. Each of them came from Kathy McBain, Reg. N. Exhibit 8 is a 19 Nov 99 memo to the Griever, subject "New staff/Preceptor". All it said was, Hi Katherine. I will need your expertise at the following clinics: Tillsonburg: as float you can assist Karen Crossett, Lori Skarratt and Julie Baines with floor duties (pack set-up, donor prep and pack labelling) Belmore: Nancy Enright, Karen Crossett and Norma McMillan on, floor duties Mr. Chuckles: Nancy Enright on floor duties and Reg/Tech ".1 Exhibit 9 is a 16 Nov 99 memo to the Griever, subject "Preceptor". All it said was, Nancy Enright and Karen Crossett will be at Banting SS on Fri. 19 Nov/99. They have received classroom training on Reg/Tech, donor prep, pack set-up and pack labelling. I would like you to act as preceptor on Reg/Tech. They can divide their time between Reg/Tech and the floor where Donna Lawson will be precepting. Exhibit 10 is a 19 Nov 99 memo to "Charge Nurse/Belmore", subject "New Stiff'. It said, Nancy Enright, Karen Crossett and Norma McMillan will be at Belmore clinic. They are to work at Reg/Tech with Carol Estabrooks and Thelma Rice. Katherine Zan can help them on the floor with pack set-up, donor prep and pack labelling. None of that evidence proves that "additional" responsibility was assigned to the Grievor. As Ms Gallop noted in her argument, the question to be asked is "additional to what?". She suggested that it meant additional to duties set out in the "Position Description". The most likely interpretation of the evidence thus far is that the Grievor, who had volunteered for the "preceptor" role, was asked to perform that role to "assist with training of staff'. That was a El 07/10/00 11:36 FAX $19 661 3790 Uw0 LAW SCHOOL @1002 responsibility clearly set out in the "Position Description", and thus would not qualify as an "additional" responsibility that attracted premium pay under Art 16.03(d). That interpretation of the Collective Agreement is bolstered by the evidence the: parties agreed to submit about their last round of bargaining. Ms Bea Dykeman testifies/ for the Union; Ms Leslie Rogers testified for the Employer. Though their evidence was different on various points, I found each to be candid and reliable as to her recollection of what happened. The key point is what the parties thought the proposed premium was intended for. Ms Dykeman agreed that the new provision was introduced by the Employer in a document (Exhibit 11) worded as follows. MP NEW ARTICLE In Charge Premium Whenever an employee is assigned by the Employer the additional responsibility to direct or oversee work of other employees within their classification, she shall be paid a premium of $0.90 cents per hour or portion thereof for such assignment in addition to her regular salary. According to her notes (which she admitted did not quote every discussion that took place, but mainly recorded what the two chief negotiators said) the Union negotiator's first response was made some six hours after the Employer first tabled the proposal. The first resporue was "if it's for training and precepting, we will agree to it". There was no immediate rejoinder, but her notes indicate that after a four and one-half hour lapse the Employer's representative said that it was "not intended for training", and then said that it "does not apply to people training" about ten minutes later. Her notes record no further discussion on the point. Ms Rogers recalled some other details. She said the Employer's intent, which was explained to the Union at bargaining, was to appoint (and pay the premium to) a "lead hand" in situations where staff were already working without direct supervision at certain times of the day or night. She did not recall any discussion at bargaining about the possible payment of the premium to "preceptors", but she agreed that Ms Dykeman's notes were probably accurate on that point. I Find. based on the evidence presented, that the parties never intended the new premium created by Art 16.03(d) to apply to "preceptors". That conclusion is also consistent with the wording of the Grievor's "Position Description": the role she volunteered for is part of the: on job training of new staff, it falls within her regular work and is not an "additional responsibility" that is "assigned by the Employer". One further point warrants mention. Mr Blair drew my attention to Art 31.04 of the Collective Agreement. It operates as a restriction on the Management Rights clause and provides: An employee cannot be required to perform duties which are not contained in his position description. Mr Blair argued that this indicated that the premium provided in Art 16.03(d) was not for duties outside the employee's classification, since such duties could not be "assigned by the Employer". However, to adopt that interpretation would render meaningless the words "additional responsibility" in Art 16.03(d). For purposes of disposing of this case, I adopt Ms Gallop's interpretation on this point. It would appear that the Employer might not be able to force any "additional responsibility" (such as temporarily supervising fellow employees) on an employee, but would be able to "assign" such duties to an employee who was willing to take on the responsibility (and to earn the premium pay). The premium pay created by Art 16.03(d) does not apply to the "preceptor" work done during on job training of new employees. The grievance is dismissed. Issued at London Ontario on 29 June 2000 t B Welling Arbitrator% 91