HomeMy WebLinkAboutUnion 10-01-25
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In the Matter of an Arbitration
Between
Providence Continuing Care Centre - Mental Health
Services
(Hereinafter referred to as the "Employer")
And
Ontario Public Service Employees Union - Local 431
(Hereinafter referred to as the "Union")
Re: Union Grievance - Plumber/Steamfitter Position
Sole Arbitrator:
Felicity D. Briggs
For the Union:
Peggy E. Smith
For the Employer:
Ron Pearson
The Union filed a grievance that stated} "the Employer has created a
plumber/steamfitter classification without an appropriate rate of pay in violation
of the Collective Agreement.1I There was no dispute between the parties
regarding the Board}s jurisdiction to hear and determine this matter.
The relevant provisions of the Collective Agreement are as follows:
Article 31.1 a) New Job Classification
If} during the term of this Agreement} a new classification in the bargaining
unit is established by the Hospital or the Hospital makes a substantial
change in the job content of an existing classification which in reality causes
such classification to become a new classification} the Hospital shall advise
the Union of such new or changed classification and the rate of pay
established.
Notifying the Union
The Hospital agrees to forward a copy of the job description and the salary
range to the Union before the position is posted.
Appropriate Rate of Pay
If requested} the Hospital agrees to meet with the Union to allow
representations with respect to the appropriate rate of pay.
b) Grievance Process
Grievance relating to the establishment of new classifications or rates of
pay shall be filed in accordance with the timelines set out in Article 14 of
the Agreement.
c) Where Union Challenges Established Rate of Pay
Where the Union challenges the pay rate established by the Hospital} the
dispute concerning the pay rate may be submitted to arbitration.
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d) Arbitration Award - Retroactivity
Any change in the pay rate by the Hospitat either through meetings with
the Union or by a Board of Arbitration} shall be made retroactive to the
time at which the new or changed classification was first filled.
Prior to February of 2005} the Hospital had a Maintenance Plumber position and a
Maintenance Steamfitter position within the bargaining unit. There was no
dispute between the parties that in February of 2005} the Hospital decided to
create a new classification of Maintenance Plumber/Steamfitter which replaced
the two earlier positions. The Hospital created a new position description which}
unlike the previous Plumber or Steamfitter position descriptions required
"certification in the Plumbing trade by the Ontario Ministry of Apprenticeship and
Trainingll in addition to "certification in the Steamfitting trade by the Ontario
Ministry of Apprenticeship and Trainingll. The "position responsibilitiesll of the
new position were} generally speaking} a condensed amalgam of the two previous
positions.
It was the Union}s position that this Board must set a new wage rate because of
the increased duties and responsibilities} the additional qualifications and the
change in working conditions. The Employer was of the view that there should be
no wage increase for the new classification because the skills required in the new
position are not at a higher level than either the old Maintenance Plumber
position or the Maintenance Steamfitter position. Further} much of the work
actually being performed by those in the new classification is similar or identical
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to work performed in either of the old positions.
The old Maintenance Plumber position specification stated that incumbents must
have completed "the recognized apprenticeship in the Plumbing trade and
certification by the Ontario Ministry of Education and Trainingl/. Additionally}
some of the duties and responsibilities were as follows:
· Skilled maintenance and construction work in the general upkeep of
plumbing installations} equipment} and heating and sanitary systems;
· Making general repairs to and working from drawings to install all types of
plumbing fixtures to comply with the Ontario Plumbing Code} Building
Code} Ontario Fire Code} Regulation 52 under the Apprenticeship and
Tradesman}s Qualification Act;
· Clearing blocked drains sinks} tubs} basin} toilets} etc
· Cutting and threading pipe} using C.S.A. approved plumbing equipment and
procedures;
· Maintaining and installing water pumps} sump pumps} water stills} etc.}
· Installing plumbing equipment in additions or new buildings on institutional
property
· Providing technical directions and supervision to maintenance mechanics
and plumbing apprentices;
· Carrying out preventive maintenance on hospital equipment} i.e.} century
whirlpool tubs} sterilizers} dental equipment} grease trap interceptors} x-ray
equipment} etc;
. Working in all areas of the hospital and grounds;
It was also listed that Plumbers were to carry /lout general maintenance dutiesl/
such as:
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· Completing plumbing surveys where required
· Other maintenance tasks throughout the institution in any of the
mechanical trades i.e.} upkeep of hot water or steam heating systems
· Type 1 and Type 2 asbestos repairs as required.
It was stated that the Plumber "performs skilled manual tasks at the journeyman
level; more than 60% of their work time involving the installation} maintenance}
repair and general up-keep of all types of plumbing equipment/systems.1/
It was also specified that the skill and knowledge required for a Plumber were:
Ability to work from plans/drawings} instructional ability} good physical
condition. Valid Ontario Class "GII Licence. Good oral and written
communication skills. Ability to deal with patients in an understanding and
non-confrontational manner.
Knowledge of departmental and Ministry practices} procedures} and
policies and related forms and documents as they relate to the plumber}s
functions.
The Position Specification for the Maintenance Steamfitter provided that the job
requires "certification in the steamfitting trade by the Ministry of Skill and
Developmentsll. Further} it said that the purpose of the position was to "maintain
and keep in good repair steam heating systems and hot water heating systems
and kitchen} ventilation} pump heating systems} high & low pressure steam
systems} hot water convertors} steam mains} return mains} steam traps}
condensate and circulating pumps} controls and valves as set out in Regulation 59
under the Apprenticeship and Tradesmen}s Qualification Act in a Provincial
Psychiatric Hospitalll. Some ofthe duties listed were:
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· Performs skilled steamfitting at the Journeyman level in accordance with
standard trade practices ..... by carrying out a variety of steamfitting tasks}
e.g.} installation of new heating equipment valves} pumps} radiators}
convertors} unit heaters} ventilation} appurtenances} controls and ancillary
equipment;
· Repairing and maintaining high and low pressure steam systems} hot water
heating systems} and lines} steam traps} condensate lines} condensate
recirculating pumps} valves} return pumps} pump connections} steam
expansion joints} pneumatic air and vacuum systems} hot water and steam
radiators and steam injectors} kitchen equipment} (e.g. steam kettles}
cookers} steam chests} potwash and dish machines);
· Installing pipe insulation and converings on steam} hotwater heating supply
and return lines} inspecting wards and other buildings for proper heat and
control;
· Making necessary repairs in Power house} steam tunnels and other
buildings (e.g. steam mains} condensate mains} and return lines} valves}
pumps} steam traps} piping and accessories.
· Carries out general maintenance duties such as: completed steamfitting
surveys when required; performing other maintenance tasks throughout
the institution in any of the Mechanical trades} i.e. upkeep of hot water or
steam heating systems;
Not surprisingly} the new Position Description of the Maintenance
Plumber/Steamfitter position has} for duties and responsibilities} a blend of
the two above. The stated purpose is "to maintain in good repair and
operating condition} plumbing and steam installations and} heating and
sanitary systems} including all association equipment throughout the facilityll.
For the new classification the Education} Experience} Skills and Knowledge
include the following:
· Certification in the Plumbing trade by the Ontario Ministry of
Apprenticeship and Training} Master Plumber}s Certification preferred
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· Certification in the Steamfitting trade by the Ontario Ministry of
Apprenticeship and Training
· Three years experience as a journeyman Plumber/Steamfitter
· Experience in institutional plumbing and steamfitting preferred
· Knowledge of hospital and health care facility plumbing and
steamfitting codes including} but not limited to Public Hospital Act}
Occupational Health and Safety Act} Ontario Building Code and its
Ontario Plumbing Code} Technical Standards and Safety Authority}s
Ontario Steamfitting Code} CSA standards and other relevant by-laws
and regulations
. Knowledge of operation and repair of pumps
There was no dispute amongst the various witnesses as to how a journeyman}s
certificate or "ticketll is achieved. For either a Plumber or a Steamfitter there is a
five year apprenticeship program. An individual first becomes employed by a
plumbing or steamfitting contractor or in an institution with journeymen in those
trades. The Employer of that apprentice would then register the apprentice with
the Ministry. The apprentice must then meet certain work hour requirements and
must attend at and pass courses given at various times within the five year
apprentice period. An apprentice will then write an examination that wilt if
passed} bestow upon him a license or certificate to practice as a journeyman in
that trade.
Generally speaking} if a Plumber or a Steamfitter wishes to hold obtain a ticket in
the other trade} they must first work in the alternate trade for two years plus
attend as required at a trade school. The Ministry recognizes that there are
overlapping skills as between some related trades and that is why three years of
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the program are "forgivenll. Once that experience has been obtained} the
journeyman would contact the Ministry of Training} Colleges and Universities and
request an application. Once that document has been filled out and returned
along with a letter of reference} a Supervisor}s Assessment of Skill Sets} an
attestation of one}s own skills and a general personal application} the Ministry will
assess the candidates eligibility and if it was found that the applicant met the
criteria} the candidate would be given. The time requirement regarding the
number of hours that have to be worked in the second trade may vary somewhat
depending on individual facts.
The Union called Gregory Heffernan to give evidence. He has been the
Plumbing/Heating/Mechanic Supervisor for the Hospital. He has been working at
the Hospital for twenty one years and is a Licensed Master Plumber and a
Licensed Steamfitter. He also has a Gasfitter Technician 1 License and a Backflow
Installer License. Mr. Heffernan testified that prior to the implementation of the
new amalgamated position there were a number of activities that a Plumber
performed that were actually Steamfitter duties such as fabricating or fitting pipe}
performing pressure tests and installing and checking valves to name a few. While
he noted that the old position specification stated that sixty percent of a
Plumber}s time was spent on the duties listed} Mr. Heffernan stated that the
actual percentage of time spent by a Plumber performing "plumbing dutiesll prior
to the new classification was higher than sixty percent perhaps as high as ninety
five percent. He suggested this was In part because there are steamfitting duties
such as working with high pressure systems that can not be performed by a
Plumber.
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He also reviewed the duties set out on the old job specification for Steamfitters
and noted again that} prior to the new classification most of the duties performed
by a Steamfitter were found in that job specification. He testified that the amount
of steamfitting work performed by a Steamfitter as set out in the job specification
was probably in excess of sixty percent. Mr. Heffernan estimated that now a
Plumber/Steamfitter spends about fifty per cent of his time in each trade.
Further} approximately twenty percent of the work of a Steamfitter is dealing
with high pressure systems.
Prior to the new classification there were two Plumbers and one Steamfitter. Now
there are two Plumber/Steamfitters. Both before and after the introduction of
the new classification there is some work that is performed by either Plumbers or
Steamfitters that do not need to be done by journeymen. However} according to
Mr. Heffernan there is work which can only be done by a licensed tradesman. As
was the case with Plumbers doing steamfitting work prior to the new
classification} Steamfitters were not assigned to do the work of a Plumber
because they did not hold a Plumber}s license and there was work they were not
qualified to perform.
Mr. Heffernan conceded that he knows of a few employers in the area that
require a "dual tickef'. He thought the dual ticket makes journeymen more
"employablel/. In cross examination Mr. Heffernan was asked to review Ministry
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documents entitled "Supervisor}s Assessment of Skill Setsl/ for Steamfitters and
for Plumbers. It is sufficient to say that he noted that in some areas there was no
comparator skill between the two classifications but} generally the positions could
be described as similar. Further} he agreed that there was "a significant amount of
overlapl/ of the work performed by people in the two positions.
Mr. Heffernan also noted the differences in the working conditions between the
two trades prior to the new classification. He said that Plumbers often work in
patient areas while Steamfitters more often work in mechanical rooms or
kitchens and other areas with few members of other staff or the public.
Steamfitters had to climb} stand} bend and crouch. In cross examination he
agreed that the working conditions were similar "to a certain extentl/.
In cross examination Mr. Heffernan also agreed that while there are some areas
of high pressure at the Hospital that would not allow a Plumber to do the work of
a Steamfitter} the majority of the steamfitting work was less than 15 p.s.i. That
low pressure meant that Plumbers could work on the system. Later Mr. Heffernan
testified that approximately 20% of the steam lines are high pressure if you
consider all of the areas in the Hospital.
In cross examination Mr. Heffernan was asked whether there was any legislation
that required the Hospital to employ a Plumber. He thought there was but
conceded that much of the work could be done by a maintenance mechanic.
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Further} he agreed that Steamfitters could have been assigned to do some of the
work of a Plumber but that it did not happen prior to the new classification.
The Union also called Mr. Brian Macdonald from the Department of National
Defence in Kingston to give evidence. He has been at the base thirty one years. He
was a Plumber until 1996 when he became a Plumber/Steamfitter. He did so
because his employer decided that it wanted its tradesmen to hold dual
certificates. After the new position was in place a wage increase of a dollar was
instituted. Mr. MacDonald thought that the wage increase was given because the
new position was "assignedl/ a certain number of points. While he was not
involved in the job rating process} he recalled that each of the two tickets were
assigned points. Mr. MacDonald testified that major difference in the work he
performed after the new classification was the addition of working with high
pressure steam.
In cross examination Mr. MacDonald agreed that Plumbers can work with steam if
it is less than fifteen pounds per square inch. However} in order to work with
steam of higher pressure Mr. MacDonald was of the view that an employee had
to be a licensed Steamfitter. He was asked what was the ratio of work of
steamfitting to plumbing at his place of business and he estimated it to be in the
area of fifty percent for each except in the summer when working with steam is
more the norm.
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Mr. MacDonald could not explain the job rating system of his Employer. He was
unfamiliar with the factors considered} the numbers assigned to any particular
task or fact and he did know about the banding of classifications. He said that the
new job description for the position of Plumber/Steamfitter was significantly
different from the old but he thought that the additional points were given for
the dual ticket. He did concede that there could have been other changes
involved in the new total.
Ms. Sheryl Ferguson is the local Union President and has been involved in the
collective bargaining negotiations since 2001. She recalled that the new
Plumber/Steamfitter position was introduced in approximately October of 2004.
The Union wanted a wage increase for this position because the knowledge and
responsibilities have been increased. She reflected on other classification in the
bargaining unit that hold two areas of responsibilities and they receive a higher
level of compensation such as Nurse/Educator and Clinical Date Facilitator.
Further} there is an electrician that receives extra compensation for certain duties
he performs regarding fire responsibilities. In those instances there is not an
additional license involved. Rather} the extra compensation is provided for
greater duties} knowledge and responsibilities according to Ms. Ferguson.
In cross examination Ms. Ferguson was asked about the Carpenter/Locksmith.
She agreed that this position is held by a journeyman Carpenter. However} she
was not sure whether Locksmiths are licensed or certified. She thought the course
required is either one semester of College. This position did not receive more
r
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compensation because of the dual responsibility There was some uncertainty
about whether a grievance that had been filed was withdrawn or is being held in
abeyance pending the outcome of this matter.
The Hospital had Gary Greene give evidence. He is the Manager of Plant
Operations and Maintenance at the Hospital and has held that position for three
years. He area of responsibility includes the position at issue. He testified that in
February of 2006 the Plumbers at the Hospital were doing steamfitting work and
the Steamfitters were doing plumbing work. He testified that it was hard to state
the percentage of plumbing to steamfitting work. He said that most of the work in
the winter time was plumbing and if a steamfitting problem arises it is "patchedl/
until a proper repair can be done in the summer time. Most of the pressure
system is no longer high pressure. They are changing components of the steam
system. This is work that has to be done in the summer time. Recently in the
summers the Hospital has hired a person for the shut down period to do work on
the system before the next heating system. This is contract work that lasts from
three to six months. This is done because there is much work to be done when
the steam system is shut down. Both of the Plumber/Steamfitters are also
involved in this work. A temporary employee is hired because of the volume of
work and the amount of time there is to do that work.
There are presently two Plumber/Steamfitters. Jim Wood was a Steamfitter who
challenged the Plumbing examination and John Gillespie was a Plumber who
challenged the Steamfitting exam.
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Mr. Greene testified that there is no difference in the working conditions of
Steamfitters and Plumbers. Further} there is a high overlapping of duties between
the two positions. In cross examination Mr. Greene agreed that he did not work
at the Hospital at the time that there were two positions. However} one of the
incumbents did not actually obtain his second certificate ticket until 2006.
Mr. Peter Bacon is an Employment and Training Consultant with the Ministry of
Colleges and Universities. He has been with the Ministry for 29 years. Amongst his
duties and responsibilities is the training of skilled trades. He reviewed the
apprenticeship programs for both Plumbers and Steamfitters. He also explained
how a journeyman Plumber would go about challenging the steamfitter
examination and vice versa. Those processes are as set out above. Once the
Ministry receives the Supervisor}s Skill Assessment it is reviewed and eligibility is
evaluated. If all is in order then the candidate is allowed to take the examination.
Mr. Bacon also explained that according to Regulation 1055 an operating
industrial plant includes various industries such as mines} Hospitals} schools or
public utilities. He was asked if there was anything in the Act or Regulations that
would preclude an employer from assigning steamfitting work to a Plumber. He
testified that this Hospital could assign its steamfitting work to any employee
subject to the Health and Safety Act which requires assignment of the work to a
competent worker. The same is true for plumbing work that is assigned to a
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Steamfitter. In cross examination he said that it is the Employer} after exercising
due diligence} who determines whether a worker is competent to do particular
work. Mr. Bacon said that he would recommend to all employers that they
engage the services of a journeyman although it is not mandatory.
In cross examination Mr. Bacon reviewed various documents. Specifically he
noted that there are a number of plumbing duties that could be done by
Steamfitter and conversely various steamfitting duties that can be performed by a
Plumber. He noted there were a number of overlapping skills.
Mr. Bacon was asked about whether municipalities have bi-Iaws regarding
minimum requirements of workers performing certain functions. He said that he
thought some municipalities require a Master Tradesman to do some specific
work. One becomes a Master after applying to sit and writing a separate
examination. He thought that the Hospital would not be expected to meet that bi-
law because the need depends on the desire to do work for the municipality.
The final witness for the Employer was Peter Migneault} Chief Engineer for the
Mental Health Services for the last nine years. He is a 1st Class Stationary Engineer
and is responsible for the operation and maintenance of the power plant. He also
has responsibilities within the Hospital because there is steam needs throughout.
The power plant also supplies steam to the greenhouse and various other out-
buildings} to Beechgrove which is a different employer and to Rockwood House
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which is a rental agency. He testified that he knew of nothing that precludes a
Plumber from performing the work of a Steamfitter as long as the work is with
low pressure.
In cross examination Mr. Migneault explained that various buildings of the
Hospital are actually owned by the Ontario Realty Corporation and so from time
to time it will decide to hire others to do some work.
UNION SUBMISSIONS
Ms. Smith} for the Union} contended that Article 33 of the Collective Agreement
allows a Board of Arbitration to consider whether the rate of pay established by
the Employer for a new classification is appropriate. If it is determined that the
Employer}s established rate is improper the Board must make any adjustment
retroactive to the date the new classification was occupied.
The method for this Board to utilize in its determination as to whether a new rate
of pay is proper} according to the Union} is to review the organization}s operation
before and after the classification change. That is to say} how the work was
assigned including the qualifications needed to do the work before and after the
new classification is the best evidence for this Board to consider. This is not a
consideration of what the Employer could do before and after the change. Rather}
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this case should be determined based on what the Employer actually required of
the two positions and how the introduction of the new classification altered the
work.
The Union urged the Board to accept the evidence of Mr. Heffernan who worked
for the Employer under both the old and new regime. He is responsible for the
assignment of work to the tradesmen and he said that prior to the new
classification the Plumbers were assigned most of the plumbing duties and the
Steamfitters were assigned most of the steamfitting work. At the time of his
evidence} Mr. Heffernan testified that a Plumber/Steamfitter can have close to
half of his time spent doing each of the two trades.
The Union noted that I heard considerable testimony about the parameters of
how the Employer could assign work and how there was some overlap of job
functions. In large measure} that evidence is not relevant to the issue at hand Ms.
Smith suggested. Whether the Employer was required to assign certain work to a
Plumber or a Steamfitter is not determinative. The real issue for this Board to
decide is whether all of the changes that have occurred as the result of the
introduction of the new classification bring about a new rate of pay. That
determination should be based on the nature of the work actually performed by
the incumbents in this workplace before and after the introduction of the new
classification. Mr. Heffernan said that generally speaking he assigned plumbing
work to the Plumbers and steamfitting work to the Steamfitters to the extent
possible. He was unaware that he could test the competencies of one trade to
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perform the work of the other.
Ms. Smith said that it is also not relevant whether the Employer is or is not
required by some statutory regulation to employ only journeymen in a trade or
whether it is obliged to employ only journeymen with a /Jdouble ticketl/.
Irrespective of whether the Employer is exempt from regulations regarding the
assignment of work} it determined} for whatever reason to create the new
position with a two fold qualification component. This new position does not
uniformly fit within either of the two old classifications and therefore it does not
fit within that wage grid. It is not sufficient for the Employer to say that it could
have assigned plumbing work to a Steamfitter or steamfitting work to a Plumber
in the past. It did not do that on a regular basis and so when the Employer created
the new classification it raised the bar. The Employer now requires employees to
undergo a more time consuming and rigorous process to meet the two
qualifications for the position and assigns work of two different trades.
The Union urged that when it is taken into account that this new position has
additional qualifications and a broader scope of practice for those performing the
work} it must be found that the rate of pay of the old classifications is insufficient.
In determining the appropriate rate the Board should either accept that evidence
of Mr. MacDonald from the Department of National Defence that one dollar is a
reasonable increase or send the issue back to the parties to negotiate.
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EMPLOYER SUBMISSIONS
As anticipated by the Union} the Employer contended that it would be wrong for
this Board to focus on the specific duties. There has always been a significant
overlap in the skills and competencies of these two trades and that overlap that
should bring this Board to dismiss the grievance. It would be wrong to pay the
incumbents an increased amount for doing substantially the same work they did
prior to the establishment of the new classification.
Mr. Pearson} for the Employer} asserted that a review of the old position
description of the Plumber and the Steamfitter and the new classification of
Plumber/Steamfitter reveals that there is no qualitative or substantial change to
their duties. This is a case of a merged position} not a new classification in a
traditional sense. And the mere fact that this is a new classification does not} in
and of itself} bring about a salary increase.
The appropriate exercise for this Board to undertake} according to the Employer}
is to consider whether there was a substantial change to the work and the
evidence established there was not. A review of the old position descriptions
reveals that each job description referenced the other classification under the
duties and responsibilities section. Further} it was apparent from the cross
examination of Mr. Heffernan that there was a significant overlap of the two
trades.
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The Employer relied upon Re Jamieson v. Treasury Board (National Defence)
[2002L c.P.S.S.R.B. No. 79; Re Sperry Inc. and United Automobile Workersl local
641 (1985L 20 L.A.c. (3d) 385 (Hinnegan); Re Westcoast Energy Inc. and Energy &
Chemical Workersl Unionl local 862 (1994L 46 L.A.c. (4th) 88 (Coleman); Re
Vancouver Police Board and Regional Employees Union (1990L 15 L.A.C. (4th) 25
(Larson); Re Health Employers Association of British Columbia and Hospital
Employeesl Union (December is} 1997L unreported (Kinzie); Re Providence
Continuing Care Centre and OPSEU1 local 483 (June 27} 2007) unreported
(Albertyn) and Re The Participating Hospitals and Service Employeesl
International Union (November 7} 2006) unreported (Kaplan).
Mr. Pearson suggested that a review of the above jurisprudence substantiates the
Employer}s view that where there is no substantial change in duties} no higher
level of responsibility or duties} and where there had been an overlap of duties
between the two previous classifications} no increase in salary is warranted.
Further} it was contended that the Board should not become engaged in the
exercise of {Jcounting up the number of ticketslJ for this new classification.
Previously both positions brought about the same rate of pay and that was
because the work was of equal complexity. The new classification does not add
any new duties or levels of complexity to the work to be done.
The Employer stated} in the alternative} in the event that this Board finds that the
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requirement for an additional ticket should bring some increase in rate of pay}
that finding should be set aside in this instance given the level of overlap in duties
existent in this case.
In reply the Union urged that this case is not dissimilar to a situation where some
employees hold a Bachelor}s degree and other have a Master}s degree. While one
degree might be built on the other} there is additional knowledge and training.
Further} irrespective of the evidence regarding an overlap in duties} the new
classification brought about a difference in the complete bundle of skills needed
to do the job and that change justifies an increase in pay. When consideration is
given to the differences in how the work was assigned prior to and after the new
classification} the Board must uphold the grievance.
DECISION
There was no dispute between these parties that a new classification has been
created. Prior to 2005 there was a position of Maintenance Plumber and a
position of Maintenance Steamfitter and now the classification is entitled
Maintenance Plumber/Steamfitter. As set out above} the new job specification
includes tasks from each of the old position description. However} it must be
noted that some tasks set out in the new description were set out in each of the
old position descriptions.
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In Re Sperry Inc (supra) the arbitrator reviewed some of the jurisprudence.
Specifically he considered what changes might take place in the workplace that do
not constitute a change in classification. While this Board is not being asked to
determine whether a new classification was created in the first instance} some of
those comments are helpful. As set out at page 3}
An addition to the job content of an existing job classification does not
necessarily result in the creation of a new job classification. Rather} there
must be a substantial} qualitative change in the actual function performed
by the employees in the classification. The employee}s basic job function
must have changed in fact even if not in name.
The Arbitrator went on to note that employee use of a new piece of equipment to
do the same work does not cause a new classification. Further} the
computerization or technological improvement did not result in any change in the
duties and therefore no new classification was created. It was said} beginning at
paragraph 12:
Thus} advances in the state of the art in a given area} requiring advanced
skills in the new technology} does not} in and of itsel( result in the creation
of a new job. The Master Technicians are still performing essentially the
same job duties of repairing and overhauling aircraft electronic equipment}
albeit now including digital systems and micropressors.
By way of contrast} the position of Packing Technician} introduced by the
company in August of 1985} was referred to. That was} in fact} a new
position involving new duties and responsibilities not previously performed
in any App.I/BII occupational classification within this bargaining unit. In my
view} that example usefully illustrates the difference between a new job
classification established to perform new duties and an existing job
classification continuing to perform the same duties with new technology.
22
In Re Westcoast Energy (supraL the Union alleged that two positions had been
effectively combined thereby creating either a new classification or a situation
where the higher of the two pay scales should be paid. In considering the matter
at hand the arbitrator considered comments regarding the premise behind wage
schedules found in Collective Agreement Arbitration in Canada} Palmer (1983) at
page 472:
It has been said that the purpose of a wage schedule that sets out different
job classifications is to ensure that equal work will attract equal pay and
that relevant differences in skill required} complexity and difficulty will be
reflected in monetary rewards.
In arriving at his decision on the merits Arbitrator Coleman said} at paragraph 36:
It seems to me} therefore} that the relevant test to determine if a new
classification has been created} whether the "newll duties and
responsibilities are new to the bargaining unit or not} is whether there has
been a substantive} qualitative change in duties and responsibilities. This
means something beyond the current job (or job description if there is
oneL which cannot be merely a change in emphasis of a different mix of
the same duties.
....it is apparent on the evidence that Shift Engineers have been assigned a
new set of tasks and responsibilities requiring new skills and knowledge.
They have been given duties and responsibilities in a part of the plant for
which they were not previously responsible (their original job was to
perform task involved in the operation of a Power House or Sulphur Plant}
not an Effluent Plant). The postings reproduced above} although general}
do not describe anything like similar responsibilities and the
correspondence indicates that both parties considered the new duties to be
different and requiring of new expertise. Neither party thought that Shift
Engineers would simply and easily absorb the new duties without training}
significant time commitment and alterations to existing duties. All have to
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possess added knowledge} significant in amount and impact importance;
and from having nothing to do with the Effluent Plant} they now spend
considerable time there: anywhere from 30 to 50% of their working shift.
In Re Jamieson v. Treasury Board (supraL the issue before the Board was the
termination of an employee at CFB Kingston. The Employer had decided to
consolidate the plumbing and steamfitting shops thereby reducing the number of
employees. The grievor wanted to continue to work as a Plumber and was not
prepared to gain a Steamfitter ticket and was terminated for non-disciplinary
reasons. It was ultimately found by the Board that the reasons for the termination
"felllargelyl/ on the grievor}s shoulders because he was given ample opportunity
to obtain the steamfitter}s certificate. Accordingly} the decision is not particularly
useful to the fact situation before me. However} it was interesting that there were
a number of comments made by various witnesses and by the Board in its
determination regarding the amount of work which is common to both trades.
The Employer also provided submissions and Interest Arbitration awards in the
Hospital sector regarding payment of double tickets. However} neither of the
situations proffered are of assistance in the instant matter. Neither appeared to
have been a case where there were two separate classifications that were merged
into one new classification resulting in a situation whereby those who held only
one journeyman ticket were no longer qualified to do the work. One case was of a
Union request for a wage adjustment for Carpenter/Locksmiths. The
accompanying rationale was that the Carpenter/Locksmiths at that particular
hospital were paid less than their counterparts at other Hospitals and in other
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industries. The second Union proposal was for the a monthly premium to be paid
to Plumbers lito reflect the use by the Hospital of more than one
Ticket/Certification in the normal course of regular employmentll. It did not
appear that} as in the fact situation before me} there was a new classification with
additional qualifications created. To be clear} the proposal was for a premium to
be paid to Plumbers} not to Plumber/Steamfitters.
In Re City of Vancouver (supra) the issue before the Board was lIabout the
application of pay equity principles to an established job evaluation plan that has
governed the relationship between the parties since March 31} 196T. Again} the
issue in that case is different than the matter at hand in the instant case but some
comments were interesting particularly when attempting to determine the
usefulness} if any} of Mr. MacDonald}s evidence regarding the change in wage
rates after the introduction of the dual certificate position at CFB. In that decision
it was noted at paragraph 60:
Job classification systems do not measure the volume of work. Where new
technology is introduced into a workplace} the question is not whether the
work has been made easier in the sense of taking less apparent effort but
whether the essential nature of it has changed - measured by reference to
its complexity - in a manner that makes it qualitatively different than it was
before. If it has been made less complex by the introduction of the new
technology} the job should be devalued; if it has effectively increased in
complexity it should be revalued upwards.
As noted at the outset} the parties take two very differing views of this matter.
The Union urged that the new classification should have an increased rate of pay
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become of the new requirement to have two journeyman certificates and
because the work now assigned to the incumbents after the new classification
was established is substantially different than it was when all of the tradesmen
held only one certificate. The Employer} on the other hand} strenuously
contended that because neither the second trade certificate nor the additional
tasks assigned to the incumbents are at a level that was higher than their old
classification} no increase is warranted.
It is fair to say that all witnesses working in the Hospital recognized that there was
an overlap in duties between the two trades. The actual amount of the overlap
within this workplace varied somewhat from witness to witness. I found Mr.
Heffernan}s evidence reliable in this regard for a number of reasons. He has been
at the Hospital for a long time and he worked in the maintenance department
both before and after the implementation of the new classification. Further} as
part of his own duties he has assigned the very work at issue to the tradesmen
both when there were two separate trades and now that there is the dual
certificate. Mr. Heffernan conceded that there was overlap but also said that in
both trades most of the work that was being done was contained in their own job
specification and not the work of the other trade. Having noted that} It is not to
be forgotten that there were some strikingly similar tasks set out in the two old
position descriptions.
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After much consideration I am of the view that this grievance must succeed. I
certainly understand the Employer}s point of view and appreciate how it arrived
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at the decision that no wage increase was warranted. However} I disagree.
In arriving at this determination I have taken a number of factors into account. I
considered the evidence regarding "bundlel/ of duties that was performed by the
Plumber and the "bundlell of duties undertaken by the Steamfitter and compared
them to the duties assigned to the Plumber/Steamfitter. There were a
considerable number of plumbing tasks that the Steamfitter did not perform and
similarly Plumbers spent the vast majority of their time doing plumbing duties.
Further} the estimates of the amount of time working within one}s own trade as
provided by Mr. Heffernan were weighed. The evidence revealed that now each
of the Plumber/Steamfitters spend about half of their time performing the tasks
of each trade. Again} I accept that there was an overlap of tasks but the additional
duties of the second trade significantly increase the "bundlel/ of duties to the
point where there is} in my view} a qualitative difference in the work.
Put in another way} there is a broader scope of competency for this new
classification. Further} there is an additional qualification which} by all accounts}
takes two years in time alone to achieve with an examination to pass at the
conclusion. If I denied the grievance it would be} in effect} saying that there is no
value at all to the new bundle of duties or to the dual competencies. I cannot
make such a finding.
The Employer urged that no increase in wage is justified because neither the
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additional work nor the second qualification is of a higher value. I accept that the
work of a Plumber is not at a higher level than the work of a Steamfitter. I
understand that in both positions the work was litradel/ work and compensated at
the same rate. However} now an incumbent in the new classification has to be
qualified for and able to do the full range of duties and tasks attributed to two
distinct trades. Further} the evidence was clear that the two incumbents in the
position are assigned to and do perform work in both trades almost equally. In my
view it has become a position at a higher level because of these changes. There is
a substantial change in the work.
I think that part of the Employer}s rationale for no increase was because from its
point of view there has been no change in the work that needs to be done. There
was and still is plumbing and steamfitting work to be performed. No linewll work
has been created like the introduction of a new program or department.
However} it is not necessary for me to find that there are new tasks to be
performed in order for the grievance to be upheld. While the fundamental
institutional work to be done might not have changed in any significant way}
there was no dispute in the evidence that a Plumber who is not also a Steamfitter
or a Steamfitter who does not also hold a Plumber}s certificate cannot do the
work of the new classification. Further} as noted earlier the incumbents do all the
work of both trades.
According to the evidence} prior to the implementation of the new classification
there were two Plumbers and one Steamfitter. There is now two
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Plumber/Steamfitters. While it might be that the reduction in actual staff
numbers was driven by budget restrictions or because the actual work to be done
is less} one has to wonder if there is now simply a more efficient assignment of
work because two people can do the full range of two trades.
This is not a case where one certificate is subsumed by the other; where a person
progresses through higher levels of the same trade. In this case} an individual who
was required to be a Plumber is now a Plumber/Steamfitter and the Steamfitter
of old is now a Plumber/Steamfitter. There are now two certificates where there
used to be one. There are now two trades to be practiced in the execution of this
new classification. That change should bring about an increase in the wage
assigned to it.
There was some evidence and comments made about whether the Employer is
statutorily obliged to have members of one trade or another do the certain tasks.
That evidence was not determinative in my view. My primary focus has been on
the fact that for whatever reasons} the Employer re-assessed its needs regarding
this work and established a new classification.
For all of those reasons} I uphold the grievance. As suggested by both counsel} I
am sending the matter of quantum back to the parties. I remain seized in the
event those negotiations are not successful.
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I also remain seized any other issues arising out of the implementation of this
award.
Dated in Toronto} this 25th of January} 2010.
g..
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Felicity D. Briggs
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