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HomeMy WebLinkAbout1986-0341.Dunec.88-01-270341186 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before _ THE GRIEVANCE SETTLEMENT BOARD Between: OPSEri (W. Dunec) Grievor and .The Crown in Right of Ontario (IMinistrv of T~raiwwrtation and Communications) Before: For the Grievor: J. Alick Ryder, Q.C. Cowling & Henderson Barristers and Solicitors For the Employer: K. 8. Cribbie, Esq. Staff Relations Advisor [Ministry of Transportation and Communications Hearing: October 8, 1987 Employer D. Fraser I. Freedman G. J. Milley Vice-Chairman LMember Member ii. DECISION - 2 - The grievor, Walter Dunec, currently holds the position of Freeway ‘Operator B and~:is classified as a highl.oay Equipment Operator 3 by his employer. the Ministry of Transportation and Communication. During the winter he ;vorks out of an urban highway patrol yard located at, Kennedy and Highway 401, and referred to as the Kennedy yard; and durin, 0 the summer he does regular rjad maintenance, sign repair work. road closures., a~nd other related duties Mr. Dnnec claims that he was assigned temporarily to perform the duties -of a HighTay General Foreman I for the period from November 16th. 19B.5z to April 6th, 1986, and grieves that he was not’paid acting pay at the rate-for that classification in contravention of “Article 6 - Temporary Assignments” of the collective agreement. He requests that the .board find chat he is entitled to that pay, and order it. paid. He had a similar grievance for pay during the period February 7th. 1955 to April 9th, 1985, and has abandoned that grievance as it is not timely The Ministry’s response is that no temporary assignment %-as made during the relevant period, and hence there is no entitlement to the acting pay pro- vided for’ in Article 6. The Ministry submits that the grievor was permanently ‘reclassified from Highway Equipment Operator 9 to Highway Equipment Operator 3, On a full time basis effective November ?nd, 1966, hand that his duties during .the period in question falllsquarely within that latter classification. The facts giving rise to the grievance arse as follows. The sinter season at the Kennedy yard commences on November 1st. and lasts for approxirnarel!’ 22 - 3 - weeks. During that period there is a. requirement at the ‘yard for four employ- ees tom each perform a combination of foreman duties and night patrolman duties. During the winter,. there are four shifts at the yard which~ provide coverage for all seven days of. the week, and foreman’duties require there to be one foreman on Sundays and Xondays. two on Tuesdays and Wednesdays, and one on Thursdays, Fridays, and Saturdays. When there are two foremen, the one who started on the Sunday of that week has the responsibility to jupervise the second foreman who is&n, on Tuesdays and Wednesdays. .The foreman on shift generally supervises and directswork crews. A Position Specification for a !Aain- tenance Crew Foreman/Woman, with the Class Title and Allocation of Highway General Foreman I was prbvided in evidence, as was the Class Definition for Highway Foreman I, and it was admitted at the hearing by the Ministry rharthe work done by the foreman at the yard in winter was the same as other Highway General Foremen I as defined in this material. There is no classification nor zany definition for the night patrolman duties, which these employees also performed. Evidence at the hearing indicated that those duties involved keepin g the roads clear at all times. snowplowing, sanding, salting, doing patchwork on a clear day, and work associated with reporting and clearing up accidents, including temporary closures. In the late fail’ oft 1985. there~were four foremen ac Fhe.I<ennedy yarsd. called. crew foremen, and they were all paid at the r,ate for Highway General Foreman I. They rotated on the shifts that have beer! described. and ‘they al! : performed similar duties. involvin, 0 both the foremen’s work and, the night patrolmen’s work. - 4 - ._ One of the four, a Mr. Peruch, who was a Highway General Foreman I at the time, as were the other three, was successful in a competition, and left the yard at the start of November, 1985. The grievor, who was a Highway Equipment bperator 2, had filied in the previous February as a crew foreman. %ir. Bailie, the maintenance foreman or . supervisor at the yard in charge of the four crew foremen, called the grievor in again and asked him to fill in for. Mr. Peruch. In Mr: Bailie’s words: I’1 asked Walter Dunec if he’d like to patrol. Hei accepted. I told him it was a’temporar: ,~_ classification or assignment, and that he’d-be temporarily reclassified as a Group 3 to carry on the duties of night patrol.” The grievor then responded to Mr. Bailie that as he would be doing the same duties as a Highway General Foreman I. he should be compensated as such 41r. Bailie told him that in ,t.he second year, he would get permanently reclas- sified as a Highway Equipment Operator 3. and suggested that that would pro- vide him with compensation- all year round for performing at that level in the winter, The grievor responded again that if the was doing the work of a General Foreman I, he should get compensated as such. Sir. Bailie then noted that four foremen were not required during the summer months. and that the threes fit adequately during the summer. - 5 - -. The grievor took on the job as requested. and performed all of or. Peruch’s functions both as..foreman and night patro!man during the <Tinter sea- son Hwever. he maintained his position that he :vas entitled to acting pay as Highaay General Foreman I far doing that work. and launched the grievance herein a few days after the winter season ended. on April 11th. 1986. .+.s a result of the grievance. the Slinistry became aware that it had not processed :.!r. Dunec’s promotion to Highxay Eouipment Operator :3. and it did that by lette: dated May Z&d, 1986,~ making the ceclassification retroactive. The letter aiso gave the -Ministry’s reasons for the reclassificationl and it reads as folloas: .- “Ontario :Iinistry of Transportation .and Communications :Ir. uialter Dunec 31 Richbourne Crescent Agincourt. Gntario 111-f ITS Dear Xi-. Dunec: , Fur:her to our meeting on .\:a!: 21. 1986. this letter is to confirm r;1ar effective Xoxrember 2. 1085 >-oil were reciassified from High-.~a!- Equipment Operator 2 to Hlghsa:~- Equipment Operator :3 on a fuli rime yea! ~‘oixn:~: basis. ‘This reclassification zas made on the basis that :~ou perform nig’hr patro! duties d:uring the :vinter seasons. I regret thar. :>‘ou sere not given earlier norificatian and I a.po!ngiz? fn: any incon.i.enience this rn?y ha,;e caused. 1 remain. Yours truly. - I - 6 - ._ “G. A. Thibeault” G. A. Thibeault Personnel Officer. With ,that review of the facts relating to the outstanding .claim herein, we will now review the submissions of the parties. The article on which ‘Mr. Dugec’s claim is based. reads in relevant part as ?ollows: “ARTICLE 6 - TEMPORARY ASSIGNMENTS . 6:l Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of eight (8) consecutive working days, he shall be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next highest rate in the higher classification provided that such acting pay shall not be less than three percent (3%) above his current rate.” The counsel for the union submits that Mr. Dunec was in fact assigned temporarily to perform the-duties of a Highway General Foreman I for a period well in excess of eight consecutive working days, as required by the subsection. and he should get paid for that assignment The representative for the employer has submitted that this was not a temporary assignment, but a reclassification involving a permanent reassignment to the position of Highway Equipment Operator 3 There are a number of issues contained in these opposing positions. and we ,will explore them in turn. First, ~what appointment or assignment ,was in fact made? 1 ,- 7 .- The initial assignment came verbally from Mr. Bailie. He asked Mr. Dunec to ‘tpatroi,” but it is quite evident that he and Mr. Dunec discussed the foreman’s duties, and the request included performance of those duties. He said in evidence that he had told Mr. Dunec it was “a temporary classification or assignment.” He further told Mr. Dunec that he would be temporarily reclas- ~sified as a “Group 3”, meaning Highway Equipment Operator. 3, but then Xr.. Dunecregistered his objection that~ if he was to do foreman’s work, he should get paid for it. This evidence suggests that !Mr. Bailie offered the grievor a temuorarv assignment to a position involving the work that Nr. Peruch had done. and ae will explore the nature of that ;vork shortly. ,&In view of the letter of Xay 22nd, 1986, was Mr. Bailie’s offer a valid appointment in any sense binding on the Xinistry? Evidence from a Uinistry witness would suggest it was. Mr. Thibeault, the personnel officer from the central region, agreed that such an ‘appointment can be made verbally. that it does not depend on documentation at the time, and that it may subsequently be’ documented. In fact, throughout the winter while the grievor worked in the pos<$?on, and- up to the point the grievance was launched, Mr. Bailie’s assign- ment of the work was the only assignment that existed. . Second. what work was involved? The evidence shows that it involved. night.patrol work. ~However, it just as clearly also involved the work of a foreman, in addition to the night patrol work. I - 8 - An examination of the Class Definitions for Highway Equipment Operator 2 and Highway Equipment Operator 3 show that the night patrol assignment included in Mr. Dunec’s work that winter, falls squarely- within those definitions. Those definitions also include an “ability to supervise labourers and other assistants.” Had Mr. Dunec been performing night patrol duties alone, we w.ould have little quarrel with any submission that he was appropriately classified for such either as the HE02 or HE03, as those classes are referred to in the short form. However, in the position in question Mr. Dunec not only supervised Twork crews to the same extent as the other three foremen, but he would also super- vise a second foreman on the Tuesday and Wednesday <sifts if he had been the foreman starting on the Sunday of that week. Such supervisions is found nowhere in the Highway Equipment Operator Class Definition reviewed above. hut it is essentially included in the Class Definition of Highway General Foreman I. That definition not only includes a reference to supervision of sub-foreman, but also to the supervision .of work crews and completion of projects without detailed reference to a supervisor. Furthermore, a Position Specification .for the position of ilaintenance Crew Foreman/Woman Freeways submitted in evidence, and having the Class Title of Highway General .Foreman I, makes substantial reference to the type of duties Mr. Dunec performed as foreman, incl.uding such things as supervision of winter maintenance operations, direction of the activities of sanding crews, dispatching of snowplow operators, and similar duties. Finally, we have already noted that Nr. Dunec’s duties were admitted by the employer CO be identical in the winterto the work done by the three other foremen on alternate shifts. all of ;Nhom were Highlway General Foremen I. - 9 - If then. there was in fact a temporary assignment for the <winter months. .‘.. we conclude that it was to perform duties normally performed by High&a>: Gen- eral Foreman I during those:months. and included within the Class Definirion for that group. With respect to the suggestion that Mr. Dunec was assigned to the durles of a night patrolman. we would note that rhere is no classification of night Patrolman.’ and one cannot’ accordingly be .assigned to :such a classifica- tion. Furthermore, the duties .of night patrolman were included as part of the winter duties of e!:ery other crew .foreman at the yard, and we must ::o,nciu~ir that they were part’ of those duties. The employer’s case is Pounded on a different perspective. and one Aich relies substantial!?; on the retroactive reclassification of Ma!- 2nd. !986. The -employer submits that by that letter it reclassified the grievor :o Liighira)~ Equipment Operator 3 and so fi!!ed a new? permanent position. ‘S%vhich ~oul4 be in effect year round. We Would note that the employer :also re!ied on :Ir. Bailie’s offer in So!-ember. 1985. of a temporary reclassification for tl!e assign- ment, <with the promise of a permanent reclassification ii! .the second ::?a!’ I:: Hyghaay Equipment Operaro r 3. all as described earlier The reason given for this reclassification is rhe follo!ving. Of tie f:iur employees :.. :;ho work as crew foreman !and night patrolmen), during the ~inte!. at the Kennedy yard. only three also- work as foremen during the simmer. Ti:;:ru /< no need for a fourth foreman during the summer. and consequently no neo-i fn! 3’. Dune? to do foreman’s work during the summer. The emp!oyer. has t?,e:eic.:e created a new position. under the, classification oft hi’ghxay Equipmen? Operaro! - 16 - ~..... 3. in which the incumbent-mill only do foremen’s :.~orli during the winter. The new position is permanent. and therefore Article 6. does not apply. Furrhernore. the employer has the jurisdiction to create such positions as it sees ~fir Although Re recognize the jurisdiction of the employer to create new permanent positions. as is found in s.18 of the Crown Employees Collecti1-e Bargaining Act. 3;v-e mould view the employer’s propositions aith some caution The reason for our caution lies in the fact that the submission that a permanent new position has been created is founded pri~ncipally in ex post r’ac:o evidence. arising not only after the appointment or assignment herein :?!;a mad-. but also.after it was complered (if temporary), and most significant;:: aPter :I grievance x’as launched xhich seeks a benefit arising from a temporary- assjgn- ,. ~., ment. If a right for acting pay for a temporary assignment appears t:; e:Gsr on _~ _ the basis of evidence prior to the grie.\vance. any es post facto evidenile xh,ich - Tould ektinguish that right must be clear in its ‘implications and founded :;I! good faith. The’folloMng matters I-eigh against the acceptance o! the employer’s *-ill- missions. First. the assignment xas conveyed clearly b>. Mr. Baiiie to Mr. I?t:ne~ as a temporary assignment. The employer’s witness, Ur. Thibeault. has agreed thar an appointment, may be made verbally in such fashion. and there is no evidence that Xr. Dunec’s understanding of this Gilaracteristic of rhe assignment :.:.-as incorrect. rlurin g the period in, question. Second. if the assignment xere a nez’ position. ic should hax:e been ?osred as reqiiired by “.+rticle 4 - Posting and Filling of Vacancies.” in the collective - 11 - agreement. It !vas not so posted. The employer admits it may have been in breach of this provision. The question of such a breach is not before us as ‘a grievance in this hearing, but we must give the failure to post some zeighr in assessing the overall credibility, of the empioyer’s position that it was filling a permanent position. Third, the letter of $Iay “2nd says explicitly’ that :Ir. Dunec’s reclas- sification *as made on the basis that he performed night patrol duties during the Cnter. There is no mention of the other duties, done by foremen. which the employer has conceded Mr. Dunec also did. It is an unlike& conclilsion from that very specific letter, that the permanent reclassification xas done becalise %r. Dunec also did foreman’s duties. but only in the winter. . :.. Fourrh. the permanent reclassificarion alleged to have been done to reflect Xr. Dunec’s rvinter duties: was at the Highway Equipment Operator 2 level. The foreman’s duties performed by Mr. Dune? are not to be fcund ia the relevant Class Definition. as we ha1T-e noted abol!e. .\ccordingl!’ such a permanent reclassification may have to be made to a ne::: class of duties. io accomplish the employer’s objective. The employer may xell (decide to crea!*: such a neix classification. but the duties involved can not be contained in the 2ighiva.x. Equipment Operator 3 classificarion on the evidence before iis. time. to r!reate a ne? permanent position effective in November. 11385. , -3. - 1 ,2 - ‘; . ;\ny of these matters taken a!one may not be ~sufficient to meet rhe employer’s submission that it had created a new permanent position for the grievor for the period under,our revien, of November 16t~h. 198.5. to April 6’th. 1986. Hox!ever, when rve view them together, we are led~ .ineluctabl:F, to the conclusion that’for that period there was a temporary assignment rhich musr displace the permanent reclassification referred ~to in the erap!oq-er’s !etter of Nay Znd. 1986, for the period under review ending April 6th. 1986. In the result, for all the reasons given above, we find that Mr. Dunec was assigned temporarily to perform the duties of a Highway Generai Foreman I for the period of November 16th 1985 to April 6th. 1966, and he is entitled :o the appropriate acting pay,under the provisions oft +icle 6.i of Article 6 - Temporary Assignments. We order that such pay be paid forthwith. and Ire remain seited to determine quantum shbuld the parties fail to agree. Dated at Ottawa, this -27thday of January’, 1988 D. Fraser. \‘ice wrnan G. J. \li!lej.. !,i e m ‘o e i