HomeMy WebLinkAbout1986-1750.Crnkovich.92-02-28z-
ONT*RtO CMPLcJ”CS 06 LA CO”ROPmC CROWNEMPLOYEES DE L’ONTAPIO
GRIEVANCE C$JMMISSION DE
SEl7LEMENT REGLEMENT
BOARD DES .GAlEFS
IN THE HATTER OF AN ARBITRATION
Under
TBB CROWN EMPLOYEEB COLLBCTIVB BARGAINING ACT
Before
TNE GRIBVANCB SETTLBMBNT BOARD
OPSEU (Crnkovich) -.
- and -
Grievor
The Crown in Right of Ontario
(Ministry of Correctional Services) Bmployer
BBPORE: Ii. Waisglass Vice-Chairperson
E. Sepour Member
M. O'Toole Member
N. Roland
Counsel
Cornish Roland
Barristers & Solicitors
FOR BMPLOYBR
J. Benedict
Manager, Staff Relations and Compensation
Ministry of Correctional Serivces
January 13, 1992
IN THE MPTTER OF AN ARBITRATION
UNDER
THE CR&N EMPLOYEES COLLECTIVE BARGAINING ACT
BEFORE
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN:
OPSEU (A. CRNKOVICH)
GRIEVOR
-AND-
BEFORE:
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Correctional Services)
H.J. WAISGLASS .Vice-chairperson
E. SEYFWUR Member
M. O'TOOLE Member
FOR THE GRIEYOR:
FOR THE EMPLOYER ,:
NELSON ROLAND Counsel
Cornish, Roland
JIM BENEDICT
Ministry of Correctional Services
EMPLOYER
HEARING: January 13, 1992
DECISION
This is a classification grievance which is. referred to this panel fro-n
another panel established especially for the purpose of deciding OAG
grievances: The grievor is classified to the Office Administration Group ot
level 8. The grievor claims the position is wrongly clossified.and insists
that it belongs to a classification within the Management Ccmpensation Plan
(MCP). The Employer agrees that the position is classified incorrectly and
.m
;“!
clo~ms that It is properly c!sss~f:ed :irthln DA;. but at !eve! 1'5. 'GLnse-:
for the Emoloyer sutmlt.t.ed that the Sccrd dces not have ;urlsd\ct!cn :o
provtde the grievor with the remedy she requires. to have her poslt:on aiqcea
in a MCP classification. Counsel for both partIes agreed :hot this
jurIsdictiona question should be dectded before proceeding to the auestions
on merit.
After hearing the ev,tdence from one witness for the Employer, Mr. So! LentIn\.
Senlor.Personnel Administrator, Compensation and Classification Section, Human
Resources Branch, Ministry of Correctional Services, and the arguments of
counsel, the Board issued its unanimous decision orally, to be confirmed In
writing. The Board decides that it has jurlsdic8ion, consistent with an
earlier decision of this Board by another panel, which decision was confirmed
by a judgment of the.Divisional Court of the Supreme Court of Ontario.
,Thir panel finds that there is no significant difference in the evidence and .
argument from that which was heard by the panel in the Canning grievance
[GSB 558/84-G. BRENT] which decided the Board has the power to classify a.
bargaining unit employee in an MCP classification. This was confirmed by a
decision of the Divisional Court [Saunder J., Heard March 19,1986, tJiv.Ct.
1148/85]
The Chair received no answer to his question on what has changed significantly
since the Canning decision was affirmed by judicial review. The Chair asked
specifically, is there now a statutory basis under the Public Service Act for
the creation and maintenance of a sepcrate and exclusive classificat:on system
for managerial (non-bargaining-unit) positions from which bargaInIng unit
positions may now be legally excluded. Apparently, nothing has happened since
the court affirmed Canning to glve~ cause for the cons'tderation of a change .
or modification of that decision.
It should be noted that Berry-type orders are now available as a remedy which
apparently were not available at the time of hearing (February. 1984) on the
jurlsdlctlon issue in Canning.
3
The Board confirms the decision glvev orally that :t has ;ur~sdlc:~on t,:.
clc:ss~fy 3 bargaining t;n:t employee 19 an ICP c!css;F!cat~cn-~l~erc I! is t%
mxt aoprooriate remedy'for an \ncorrectly clcsslfied posit!on.
DONE AT HAMILTON, ONTARIO THIS 28th DAY OF Februar,vlgg2
E. SEYMOUR, MEMBER
M. O'TOOLE, MEMBER
ONTARIO PUBLIC SERVICE EMPLOYEES UNION
(Crnkovich - G.S.B. Pile 1750/86)
YS
THE CROWN IN RIGHT OF ONTARIO
(Ministry of Correctional Services)
‘DISSENT
Edward E.,Seymour
I have read the majority award and,1 must dissent.
I find that I am largely in agreement with Union Counsel's argument
that the OAG classification is a muiti-stepped classification and
that both the Category and Group Definitions represent the "doorway
into O.A.G.," in that they set out the conditions of the standards
which must be met for employees to be placed in ~0.A.G. Union
Counsel argued, and I concur, that a close reading of the Category
and Group Definitions is required to determine if someone actually
falls within the classification standard.
The introductory and first paragraphs of the category definition
read as follows:
This category covers positions in which the primary
duties and responsibilities involve the. following
function-al areas:
positions which provide office services in
poort of office administrative~ functions as
zzfined in the Group Definition for the office
administration group services. [MY ~ha&l
. “‘
I i
As Union Counsel noted, it is this paragraph which must contain the
griever’s responsibilities if she is to be considered part of the
OAG classification.
To clarify the terms, “provide office services” and “in support of
administrative functions, ” .~~,. : ,__ , it is necessary to examine the Group
Definition of the Office Administration Group.
The Grout Definition states that the OAG “covers positions in which
the primary duties and responsibilities invoIve one or more of the
following:
.a* - the preparation, collection, transcription, record-
ing, filing, cataloguing, maintenance, examination and
verification of records, reports, applications, and other
documents. These functions are,performed either manually
or by el.ectronic processes involving the operation of
equipment such as typewriters, dictating machines, word
processors, micro-computers and computer terminals;
II - the investigation, analysis and evaluation of situa-
tions involving the interpretation and/or application of
rules, regulations, policies and/or practices in order to
establish eligibility and/or compliance, and/or to sup-
..- port specialised o,r semi.-professional programs;
II - the provIsion of office administration services,
including secretarial services;
- the transfer and/or processing of information and
internal communications, including the provision of
internal ~mail services and the operation of office
equipment for these purposes. This equipment includes:
electronic data entry/keypunch equipment, telephone
switchboards, teletype machines, photocopying,
duplicating, and mai 1 ing equipment, calculating and
bookkeeping machines and the like;
II - where required, the provision of any of the above
services to .clients/public. in a language other than
English.
“A position should not be allocated to this group if the primary
duties and responsibilities are more appropriately covered by the
definition of another group.“_
.’
.zagc j
In breaking down the above responsibilities, it is clear that the
first dart describes duties which are clerical functions and are an
elaboration of the phrase “in support of administrative functions.,”
as found in the category definition. These duties involve little
or no discreti~on or initiative: they are essentially mechanical
functions, which are a support functionfor the office.
The second dart deals with inventory analysis to establish eligr-
bility, i.e. for O.H.I.P. or c,qpliance, i.e. for an application
from a retail vendor, and are not relevant when describing the
griever’s duties.
The. third dart is important because it offers a sense of the level
of the group definition in that it covers secretarial-type
services. It provides a clear definition of what is meant in the
category definition by the term, “in support of office administra-
tive functions. I’ It says secretarial. These are the people who
supply support services in the office and are properly under the
Group Definition. They describe duties performed for the griever,
not by her. ,.-
The dut,ies described under the fourth dart are not performed by the
griever because t.hey relate to hands-on responsibility, and the
griever does not perform them.
The griever supports the program. She is at the tops l’evel of
office management. True she report’s to someone else, but that does
not place her in nor out of OAG. The Group Definition speaks to the
provlsion of office administrative and secretarial services. If
you are above the level of hands-on use of equipment, then you
should not be in OAG. If you perform duties similar to those
performed by the griever, such as directing personnel, then you are
above that level and are therefore out of OAG.
Exhibit 8, TAB I, the position specification for the. <Office
Manager, Thunder Bay Jail, describes duties which are markedly
similar to those performed by the griever. .The major diff~erences
are that the Manager of the Thunder Bay Jail deais with larger
absolute budgets and mar attend Managerial Committee meetings, and’
she does not hire or fire. Other than the above-noted exceptions,
however, the responsibilities of the Manager at the Thunder Bay
Jail are virtually identical to those performed by the griever.
The griever was examined on the duties outlined in the position
specification for the Manager at the Thunder Bay Jail. In most
instances she performed exactly the same type of duties, except
that she performs these duties for an Area Manager and not a
Superintendent.
The griever providesadvice and guidance to the~Area Manager,
while the Manager at the Thunder Ray Jail provides the same
for the Superintendent.
The Manager ‘at the Thunder Bay Jail supervises in the same
manner as the griever.
The griever prepares budget documents and keeps track of
expenditures when the.budget is in place. It is she who
monitors expenditures to ensure the budget is respected. She
handles any deviations from the budget.
In short, the bulk of the griever’s responsibilities are virtually
parallel to those performed by the Manager at the Thunder Bay Jail.
Admittedly some of the duties which are performed by the griever
are described in OAG. She does perform secretarial duties for the
Area Manager, but they are insignificant and take fifteen minutes
a week. Her’s is a managerial-type position.
The griever was candid and straight-forward in the presentation of
her evidence and under cross-examination. Her description OS the
duties she performs was not seriously challenged by the main
managerial witness, her direct supervisor, Mr. D. R., Bevilacq-da.
There was so little difference in their respective descriptions of
the duties that Union Counsel, Mr. Roland, found it unnecessary to
cross-examine him.
The Majority minimised the grieverl~s -level of responsibility and
placed a low value on ‘the level of her contribution.
It is my opinion that the griever’s duties are such that they take
her out of the OAG classification, I would have so found, and
would have ruled that a Berry-type Order was an appropriate remedy.
Dated at Hamilton this 28th day of January, 1993
/ .,
.;<A : -~ ,.. i. *f----
/Edward E. Seymour, Union Nominee