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HomeMy WebLinkAbout1986-2024.Darling.90-02-20DES GRIEFS I IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before TEE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Darling) Grievor - and - The Crown in Right of Ontario (ministry of Health) Employer BEFORE: B.A. Kirkwood I. Thomson M.. O'Toole Vice-Chairperson Nembe r Nembe r FOR THR GRIEVOR: K. Hughes Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR TBE EAPLOYER: D. Francis Counsel Winkler, Pi BEARING: October 30, lion and Wake lY 1989 Page2 DECISfON The grievor has been employed at the Whitby Psych ,iatr ic Hospital since 1968 as a sewer. When she began her employment with the hospital she was classified as a Seamstress 1, the title of which was changed to "Sewer 1" in 1976. Initially, she was one of five seamstresses, who worked in the laundry room. In 1977 she was seconded to the sewing room to work by herself, making drapes for the hospital. Since her secondment, she has complai been wrongly classified. In 1977, June Devitt, the Assistant ned that she has Housekeeper, and Mrs. Darling's immediate supervisor, recommended to. the Personnel Officer, that Mrs. Darling be reclassified as a Sewer 2 as her responsibilities, included the supervision of patient helpers. As Mrs. Darling was not reclassified, she commenced a grievance in 1978, claiming that she had been discriminated against and had been treated unfairly with respect to her. classification, and she asked that she be "reinstated" to the position of Seamstress 2. On July 21, 1978, she forwarded a letter to the hospital, setting out her position and clarifying that the remedy which she was seeking was a change in classification. Nevertheless, she was advised in writing by the Assistant Administrator of the hospital, on August 10, 1978 that she was in a position frequently classified as a Sewer 1, and she could not be "reinstated" i. to the Sewer 2 position, 'as she had never held the position. She subsequently withdrew her grievance. The grievor testified that she withdrew her grievance, as management assured her-that she would be reclassified. The grievor testified that she had received advice from her union steward. The grievor was not reclassified. Almost ten years later, in July 1987, Mrs. Darling filed the grievance, which is now before us. In this grievance, she is seeking reclassification to the position of Sewer 2 or such other reclassification that may be applicable, retroactive to 1978. It was the Ministry's position that the grievance is inarbitrable as it is the same grievance which had been filed previously and which had been withdrawn in August 1978. The counsel submitted, however, that the issue of arbitrability need not be dealt with as the'grievance would not succeed on the merits, as the grievor's job fell within the parameters of a Sewer 1. The Union's counsel submitted that a classification grievance is arbitrable, as it can be grieved continuously, as the grievance is based upon the situation arising in the period before the filing of the grievance. On the merits, the Union's counsel submitted that the grievor's responsibility for the sewing room and her responsibility to supervise patients, students and staff took her job out of the Sewer 1 category and placed her within the Sewer 2 category. She therefore, submitted that the grievor's classification as a Sewer 1, was improper and that the grievor's job fits more closely to that of a Sewer 2 or to that of a Tailor. Page 4 Alternatively, the Union's counsel submitted that in the event that the Board did not find that the grievor ought to be classified as a Sewer 1, a Sewer 2, or a Tailor, that the Board ought to follow the judgment of the Divisional Court in OPSEU (Carol Berry et al) and Ministry~ of Community and Social Services, GSB # 21?/83 to direct the hospital to create a proper classification for the grievor. The Ministry's counsel submitted on the merits, that although the grievor was the only one in the sewing room, she was supervised by a skilled supervisor, the Executive Housekeeper, who assigned the grievor work, and checked her work. The Ministry's counsel also submitted that Sewer 1 category included having patients and inmate helpers to assist her and therefore, the role which the grievor played in supervising the students, staff and helpers fell within the job standard of a Sewer 1. The Board heard all the evidence and the submissions of the parties. The first issue is to determine whether the grievance before us is arbitrable. A preponderance of arbitral jurisprudence takes the position that once a grievance is withdrawn, that party is prevented from proceeding with a further grievance which is identical in substance to the discontinued grievance. The case of Re Canadian Union of Public Employees, Local 207 and City of Sudbury 15 L.A.C. 403 (R.W. Reville) at page 403-404 is often quoted. The excerpt states: The authorities are legion that a board of arbitration has no jurisdiction to consider or, alternatively, that the grievor and his or her union representative are Page,5 barred and estopped from processing a grievance which is identical to a former grievance filed by the grievor and either withdrawn, abandoned or settled, or determined by a board of arbitration. Some of these cases proceed on the basis of estoppel and others on the principle of res judicata, but regardless of the approach taken, the authorities are overwhelming that a board of arbitration has no jurisdiction to entertain such a second grievance. One of the underlying reasons for not allowing the rehearing of the same issues is to preserve the efficacy of the grievance procedure and to provide finality to the resolution of differences. The grievance procedure provides a bona fide and timely method of resolving differences. The parties are given the right to make a complaint and to have their complaint processed through the grievance procedure and to arbitration if necessary to finally resolve the issue in dispute between the parties. The parties must be able to rely on the disposition of the grievance during the grievance procedure, whether by settlement, withdrawal or abandonment, as binding upon the parties. Although a grievance which is withdrawn has not been adjudicated to its finality, it is a unilateral act by a grieving party not to continue the dispute. Therefore, if a party unilaterally removes the complaint from the arena in which it can be resolved during the time frame of the grievance, the party must either be taken as having settled the matters in issue or alternatively that the situation previously complained of, is acceptable and is no longer in issue. The party cannot reconsider and recommence the same grievance, otherwise there would be no finality to the resolution of disputes. Similarly, a party cannot reprocess the same grievance by using different terminology. As Arbitrator Reville continues in Re Canadian Union of Public Employees, Local 207 and. City of Sudbury at page 404: Page 6 There is substantial authority to support the proposition that an arbitration board has no jurisdiction to determine a grievance which, though not identical in wording and form to a former grievance lodged by the same grievor, is identical in substance. Therefore, if the grievance of 1987 and the grievance of 1,978 are the same grievance or are identical in substance, this grievance will be inarbitrable. However, if there are changes or new facts or different issues that arise subsequent to the grievance being withdrawn, these factors may create a similar situation, but may form the basis of a different grievance, which is arbitrable. Therefore, one must ask whether the grievance before us is the same as the grievance filed in 1978, or are there new facts or issues which have arisen since 1978 which create a new grievance. The grievances on their face appear to raise the same issue, the impropriety of the grievor's classification, and they seek the same remedy, a change in the grievor's classification. Notwithstanding the reference to "reinstatement" to the position in the first grievance, it was clear from the correspondence between the grievor and the hospital, that the remedy sought in 1978, is the same remedy as sought today. Furthermore, the claim in the current grievance for retroactivity to the date from which the grievor withdrew her grievance at first glance, creates an implication that the union has reconsidered its earlier position and is reprocessing the same issue. However, we find that the basis upon which the 1987 grievance lies, is different from the basis upon which the earlier grievance is founded. The grievance filed in 1978 Page 7 was based upon an allegation of discrimination and unjust treatment, but in the present arbitration, no such allegation was made nor argued. In the present grievance, the Union's counsel submitted that it was the nature of the grievor's responsibility for the sewing room and to her immediate supervisor and the nature of her responsibility to those who were working with her, that brought her outside the Sewer 1 category. Therefore, although the remedy sought is the same in each grievance, the cause of each grievance, in the sense of a cause of action, is different. Therefore we find that the 1987 grievance is arbitrable. Therefore, the issue before us is to consider whether the grievor's job which she held in 1987 fits the standard of a Sewer 1, Sewer 2, or any other classification. In assessing the appropriateness of a classification, the Board must consider what functions the grievor is required to do and compare them to the class standards to determine whether the job done fits the description in the classification. It is useful to review the grievor's job duties over a period of time to determine if the functions which she performed in 1987 created duties which entitle her to reclassification. The evidence from 1978 can be used for this purpose. However, in no circumstance, can the facts arising from 1978 be a basis to compensate the grievor from 1978, as it would be absolutely inequitable for the grievor to sit idly by and let damages accumulate at the expense of the employer and without the employer being aware that there was'any issue or claim arising against it. If the union were to be successful, the compensation could only arise from twenty days prior to the filing of the grievance, which time period is circumscribed by article 27.2.1 of the collective Page 8 agreement, by requiring an employee to bring a compla difference to his supervisor within twenty days of becoming aware of the complaint or difference. .int or first The job which the grievor performs is that of a drapery sewer for the Whitby Psychiatric Hospital. As a drapery sewer, she is responsible for making all the drapes which are required for the hospital, and she may repair staff uniforms, which may or may not include those of men. The Tailor classification is clearly not comparable as the essential function of the Tailor's position is to alter and repair men's clothing. The repair of staff uniforms is only a small function of the grievor's job, and is included in both the job standards of a Sewer 1 and a Sewer 2. The class standards of the Sewer 1 and Sewer 2 are as follo"s: Employees in positions allocated to this class perform sewing, altering and repairing duties at an educational, reform or mental institution. Work assignments are usually made by a skilled supervisor who inspects production in progress and on completion. In a sewing room, they cut, sew or repair dresses, blouses, gowns, household linens and institutional clothing. They may be required to take measurements, choose suitable material and make drapes to fit a designated area. They mend or cast articles according to their state of repair, mark clothing with identification tags, take measurements and record the issue of institutional clothing. They maintain the sewing machines and area in which they work in a clean and orderly manner. When required, they record .quantities and take periodic stock inventories. They may instruct and assist patient or inmate helpers in similar duties ensuring their welfare at all times. Page9 1. Grade 8 education; good working knowledge of sewing equipment and textiles. 2. Acceptable sewing experience. 3. Demonstrated ability to perform alterations, mending and sewing operations; good eyesight; good physical condition. Title Change - June 1976 CLASS: Employees in positions allocated to this class organise and direct the operation of a sewing room in an institution. They supervise other sewers and patient or inmate helpers engaged in the production, alteration and repair of a variety of items as required. They allocate and check the work oft subordinates and patient or inmate helpers in order to control waste. They organise the manufacture-of new articles and the repair of damaged of worn clothing and linens. They participate in all the operations of the sewing room, planning the procedure, developing patterns, measuring, fitting, cutting and sewing. They estimate requirements and requisition sewing materials and equipment. They are responsible for the maintenance of sewing machines, an inventory of supplies, and a record of production. They assess the quality of production of staff and patients and made reports to the senior official responsible. They ensure the welfare of patients in their care while maintaining acceptable standards of efficiency, discipline and cleanliness in their workrooms. DUALIFICATIONS: 1. Grade 8 education; completion of recognized technical training in sewing and sewing instruction such as that given at technical or commercial sewing schools. Page 10 2. Several years of,acceptable sewing experience in an institutional or commercial setting or its equivalent. 3. Ability in all types of sewing; ability to draft patterns, to plan production schedules, and to supervise volume cutting, sewing and repair; instructional ability; ability to deal effectively and sympathetically with patient or inmate helpers; good eyesight; good physical condition. Title change - June 1976 After reviewing the Job Position Specification, dated January 1, 1985, which is attached as Appendix 'A' to this decision, and after hearing the grievor's evidence, we find that the Job Specification sets out most of the functions of # the grievor's job. The Job Specification, however, does not include the grievor's role with respect to the operation of the sewing room, her relationship with her supervisors, nor her role with respect to students, and staff. It is the element of supervision that is a distinguishing feature between the two positions, as set out in the standards. In the Sewer 1 job standard, "Work assignments are usually made by a skilled supervisor who inspects production in progress and on completion. . . .They may instruct and assist patient or inmate helpers in similar duties ensuring their welfare at all times. In the Sewer 2 job standard, "Employees in positions allocated to this class organise and direct the operation of a sewing room in an institution. They supervise other sewers and patient or inmate helpers engaged in the production, alteration and repair of a variety of items as required." Page 11 -. Therefore, there are several elements to be considered, the nature of the supervision, the assignment of the work and the inspection of the work. Doris Fox is the Executive Housekeeper and is the grievor's immediate supervisor. We do not accept the union's contention that as Mrs. Fox was not a skilled supervisor, she did not have a formal education in sewing drapes. We accept Mrs. Fox's testimony that she obtained the necessary sewing skills under the direction of her mother who was a trained seamstress. Therefore, we find that she was a "skilled" supe~rvisor, as referred to in the Sewer 1 standard. Mrs. Fox testified that she looked at the grievor's work after the grievor had completed her shift, by visually reviewing the drapes on the wards, and by glancing at the drapes while she is visiting the grievor in the sewing room. However, her contact with the grievor was sporadic and would at times see the grievor no more than once a month. Mrs. Fox testified that in 1987, that it was no more than once every one and one half weeks. Mrs. Fox also acknowledged that she had been absent for considerable periods of time, although the evidence was unclear as to when those absences occurred. The grievor testified that during Mrs. Fox's absences, she continued with her work in the usual manner. Supervision and inspection are not passive acts. For there to be supervision, the grievor has to be aware that her work may be reviewed. The grievor does not have to be there, but she has to be aware that it may be done from time to time, and that she would receive feedback on her i. Page 12 production. In this case, the grievor was always left to her own in determining whether the drapes were properly made, and she did not receive feedback on the quality of her production. When considering Mrs. Fox's role, and the grievor's job functions, we find that it is not sufficient for Mrs. Fox to inspect the grievor's work and not provide feedback to the grievor. Therefore, we do not find that Mrs. Fox "inspects the product in progress and on completion." On the other hand, Mrs. Fox did provide work assignments to the grievor. The grievor did not determine the number of drapes to be produced, nor when they are to be produced nor the time frame within which the drapes needed to be produced. These duties were Mrs. Fox's. Mrs. Fox was the head of the Decorating Committee of the Hospital, which decided which drapes were to be done, the materials to be used, and all other matters relating to the decoration of the rooms. Mrs. Fox, in her capacity as supervisor of the grievor and as the head of the Decorating Committee monitored the grievor's production, assigned the grievor tasks and from time to time changed the grievor's priorities of production. The grievor sometimes also received instructions to make drapes by means of a copy of a memorandum from the Decorating Committee to various persons, which included herself, who were required to do tasks for the decoration of the hospital. Therefore, Mrs. Fox's role as it related to the grievor was not to supervise and inspect the work, but to control and supervise the grievor's work assignments. Page 13 In the Sewer 1 Job Standard, the word "usually", in "Work assignments are usually made by a skilled supervisor who inspects production in progress and on completion," does not make it necessary, nor mandatory that work assignments be given by a skilled supervisor who inspects the product. It is merely that the assignment is customarily 'done by a supervisor who is skilled, and who inspects the work at least twice. We recognise that the grievor was extremely capable as seen through her performance appraisals. The effect of her capabilities is that she set the standards for the fabrication of drapes, which standards were accepted by the hospital. However, the basis for reclassification of a job position cannot be based upon the individual's merits, but must be based upon the duties which are inherent to or are part of the position. Therefore, as it is not mandatory, by the use of the word "usually", that the assignment of work be done as set out in the standard, the Sewer 1 job standard does not exclude the situation, such as the grievor's, who, because of her own abilities, can work on her own and who receives work assignments from a skilled supervisor who does not inspect her work. We must then consider the relationship which the grievor had with those persons who assisted her. From 1978 to 1980, Carol Atwater, a patient, assisted the grievor. In the grievor's performance appraisal for 1984, the hospital recognized that the grievor had trained another patient to help her. There was also evidence that two other patients, "Terry" and Glenn Rowe, had helped her. Page14 There was also evidence that the grievor had supervised two students from a community college, Ms. Leclair, for a period of two weeks, and Ms. Westwick, for four days. The grievor also testified that there may also have been a couple of more students who were with her for the odd day. In addition, the grievor had supervised a staff member for a period of three months, while the staff member was handicapped by a broken ankle. Therefore, the grievor was assisted by persons other than patient helpers for a approximately three and one half months during a period of almost seven years. . There was evidence that a staff member had helped her recently. Even if we were to accept the evidence beyond the date of the grievance, this evidence does not confirm any of the grievor's duties, as the staff member was assigned to the grievor, at the grievor's request for extra assistance and such a request cannot serve as a base for establishing supervisory duties for herself. The Sewer 1 standards states that patient and other inmates may assist the Sewer 1. The Sewer 2 job standard requires the Sewer 2 to direct the production of more than one subordinate. The Sewer 2 category does not suggest that the job is to organise the Sewer 2 herself and even one other person. The Sewer 2 job standard refers to "supervise other sawers and patient or inmate helpers" to check the work of "subordinates and other patient or inmate helpers" (my emphasis). The Sewer 2 also organises the "manufacture of new articles." This latter function suggests that the operation is involved in volume production. Furthermore, the Page 15 qualifications for a Sewer 2 position include an ability "to supervise volume cutting", which qualifications are consistent with an interpretation that the Sewer 2 is to organise volume production. The sewing room which the grievor ran, was not involved in volume production. The grievor was organizing her own work and that of anyone assisting her, to ensure that the grievor's own work was done efficiently. She did not supervise people who had to work together to produce articles, or to ensure that "the waste was controlled" which was a further criteria in the Sewer 2 standard. Assistance by patient helpers is clearly within the Sewer 1 standard. Therefore, as the grievor never supervised a team of patient helpers, to bring her job functions within the standard of a Sewer 2, the assistance by patient helpers does not take the grievor out of the Sewer 1 standard. We must then consider whether assistance by persons other than patient helpers moves the grievor out of the Sewer 1 category. There were only a few people who assisted the grievor for a short period of time who were not patient helpers. Although the students and staff were not specifically referred to in the job standard of the Sewer 1, the role which the grievor assumed over the students, and staff, was not different from the role which she had with respect to the patient workers, and was never in addition to assisting the patient helpers. The nature of the work of those assisting the grievor was the same as the patient helpers, which was to help the grievor take measurements, and be an extra hand. Therefore, we do not find that the role which Page 16, the grievor performed with the students and staff brought her job outside of the standard. In summary, after considering the job functions which the grievor had to perform, the.job standards of a Sewer 1 and a Sewer 2, we find that she was properly classified as a Sewer 1. Her independent method of working and her role with the students and the staff were consistent with a Sewer 1 standard and therefore does not require the Board tomake. a "Berry Order".. The grievance is therefore denied. Dated at Toronto, this 20th day of February, 1990 B. Ki=kwood, Vice-Chairoerson omson, Member 2% ?&!a M. O'Toole, Member : Box 613 WHITBY PSYCRIATRIC HOSPITAL, WHITBY. ONTARIO ‘IN 559 ,2.rww9drowoow~.~ll.a -II*sULI-*U 46603 To ba responsible for the mring operation of the Hospital Draperies 90% 1. Asam08 responribility for making various typos of drapes for all vindorr byr- maauring windem for &moun~ Of material wed, longrh Of track. type Of track COquited, numbr of hooks anJ vhouls rcquircd - &wing and hooking of no” drapes - drapes and bedside curtains, - rewiring and ruhooking domogcd making r~nncrs and tablucloths for table 53 2. Performs clcricol dutias byr- astimt~.sg future rcquircocnts for drapery marorial~, fittings, equipnwnr - recording quanriticr used and taking PfriOdiC inwntory Of Stock rcq.tirud by Assistant llcurokucpcr for budget purposes and for Decoratine~ Committea LO dotorminc rsquiromenta - keeping r2;orda CL idi Lapus bob3 new a* rcpaircci. St 3. As assigned. . --- -. _ - - Cr.* 3 II... . . .; ,..-... ;..: .,.;;;.; ..‘- -- .---____ ,,...*“a a.. - %W -- : --.-- -.. ~.. -.-. .-.-_- _. 4. Uilk md -lmlm m0ub.d P rdaml tk wmb Ill.t. -mm” ..my ..,e-“,. I, I I--. _ .~~.. .- ..__ j Grade 8 (Iducacion, prfforably complotion @I suvu~g cowso at .1 Community Ability to instruct in 011 phases of sowing. to draft and follow . .