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HomeMy WebLinkAbout1987-0511.Cutrone and Serkies.91-10-29, ; i i. EMPLOYhOEU COURONNE DEL’ONTARIO CQMMISSION DE REGLEMENT DES GRIEFS IN TEE NATTBR OF AN ARBITRATION Under TNN CRONN EMPLOYEES COLLECTIVE BARGAINING ACT BETWEEN BEFORE: FOR TEE GRIEVOR FOR THE EMPLOYER NEARING Before TEN GRIEVANCE SETTLEMENT BOARD OPSEU (Cutrone/Serkies) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation) Employer N. Dissanayake Vice-Chairperson P. Klym Member H. Roberts Member H. Sharpe Counsel Gowling, Strathy 8 Henderson Barristers 8 Solicitors J. Gallagher Staff Relations Advisor Ministry of Transportation May 2, 1990 September 17, 18, 1990 October 9, 1990 2 DECISION This decision deals with classification grievances filed by Mr. Ralph Cutrone and Mr. Ron Serkies. Each claims that his position was improperly classified as Survey Technician 2 (ST2) and seeks reclassification as ST). The two grievances were heard together on consent. Serkies and Cutrone have been employed by the Ministry of Transport since 1975 and 1978 respectively. They joined as STls, but wrote the Ministry examinations and advanced to the ST2 level. The relevant class definitions read as follows: CLASS DEFINITION: TECHNICIAN 2. SURVEY This level is intended to give training in the use of sighting instruments in addition to acting as a rodman or chainman. These employees act as a levelman or transitman receiving detailed instructions on the nature and purpose of the work and procedures to be followed. Complex or precise instrument work is not undertaken at this level. Typical duties include taking stadia readings, producing line, recording angular and linear measurements, taking cross sections, taking profiles, setting grade stakes, perf0rming.a variety of computations such as closures on simple level circuits, slope corrections, simple trigonometric calculations and computation of quantities for payment on construction contracts. i 3 QUALIFICATIONS: 1. Grade 12 or an equivalent of education and experience. 2. One year of related experience and successful completion of departmental examination m two years' of related experience where an examination does notexist. 3. Good physical condition. MaV 1965 TECHNICIAN 3, SURVEY CLASS DEFINITION: This class covers employees who act as senior chainman for legal land surveys. They obtain precise linear measurements, assist in taking astronomical observations, assist with title searching in the registry office and plot information from field notes or deeds. OR These employees act as transitman and levelman on engineering surveys, without detailed instructions, on all routine phases of the work, taking field notes for alignment, topography, profiles and cross sections. m These employees take charge of a sub- party working on a limited portionof a construction contract. They carry out control surveys for the precise setting of alignment and elevations of new construction and use standard survey techniques for the measurements of quantities. Typical duties include completing level circuits, laying out complex circular and spiral curves, booking field notes in a standard manner, computing quantities of materials including complex shapes in concrete structures. They assist in the supervision and training of junior members of the party and may act as party chief when required. QUALIFICATIONS: 1. Grade 12 or an equivalent combination of education and experience. 2. Two years' experience and successful completion of the departmental examination OR three 4 years' experience where an examination does not exist. 3. Good physical condition. Hav 1965 It is evident from qualification number 2 in the ST3 definition that to come within that class an employee must successfully complete the departmental examination where it exists. It is common ground that in the region where the grievors worked the examinations did exist. Serkies attained the ST2 class in 1977 and Cutrone in 1980. The evidence is that Serkies and Cutrone wrote the departmental examination to advance to ST3 twice and they failed both times. Neither employee attempted the examination a third time. The union's position is essentially two-fold. The first is a class standards argument with an unusual twist. Counsel takes the position that the only thing that kept the grievors from advancing to ST3 was their inability to pass the prescribed examination. She submits that some people are not good at writing examinations, and that in any event examinations are not the only means of demonstrating ability. She points to the favourable performance appraisals as evidence of the competency of the grievors in their actual work performance. Thus she submits that it is unfair and unreasonable for the employer to insist on the examinations 5. without providing for any alternate equivalency. The union's second position is the classic class usage argument. It is contended that the grievors work.on survey crews alongside ST3s performing the same duties, and that the supervisors and party chiefs for all intents and purposes do not treat the grievors any differently because they were ST2s. On this basis, counsel argues that the grievers' positions should be reclassified as ST3 regardless of the class definitions. We can dispose of the first of the union's positions quickly. If we had the power to strike out the examination requirement from the class definition, we would exercise that power only in the clearest of cases. [See, OPSEU and David Anderson and the Ministrv of Natural Resources, (Ont. Div. Ct. September 21, 1990)]. We would have considered that extra; ordinary action had we been convinced that the required examination had no possible relevance to the duties of the positions covered by the class. We are not at all convinced that that is the case here. In the circumstances, we must take the class definition as we find it. Clearly the two grievors do not therefore fit the ST3 class definition requirements, and the union's first argument fails. 6 Now we turn to the union's class usage argument. The Board in Re Beals and Cain, 30/79 at pp. 11-12 made the following observations relating to the rationale behind the class usage argument: It may be assumed that among the objectives of the employer's classification system are the achievement of uniformity in policy and consistency in practice throughout the public service, and equitable treatment of individual employees. It follows that it is an abuse of the system and unfair to employees where the positions of employees who are performing substantially similar work are placed in different classifications. By intervening where that condition is found to exist the Board, rather than frustrating the intent or undermining the operation of the classification system, is preserving the legitimacy and the credibility of that system. The employer is clearly entitled to create whatever classifications it deems necessary to the effective organization and direction of its employees. But the employer must accept to be held to the consequences of departures, in particular cases, from settled policy or practice. It is not open to the employer, for example, to fix the duties or to direct the work of incumbents of positions placed in one classification so as to require or permit them, in effect, to perform the duties of positions placed in another classification. - It is well established that in position classification cases, the Board must direct its inquiry to the questions, first, whether or not the work actually performed by the employee is that set out in an appropriate class standard and, second, whether or not he is nerformina work substantially similar to that beina berformed bv an emclovee whose position has been alaced in another classification. In the first instance the employee's work iS measured against class standards and in the second it is measured against that of an employee in a position that has been differently classified. The purpose is to establish either that the employer is conforming to its classification standards or that 7 the employer has, in effect, modified those standards. (Emphasis added) This Board's jurisprudence is well established that the usage test must be applied notwithstanding the written class standards. In other words, if it is established that a grievor's actual job duties are substantially similar to those performed by an employee (or employees) whose position is included in a higher classification, then's reclassification of the grievor's own position is warranted, eventhough the grievor may not meet all of the requirements set out in the class definition for that higher classification. Thus in & Roundinq, 10175 at p. 4, the Board held that a claim for reclassification would succeed if the grievor is "being required to perform virtually the identical duties which, the class standard notwithstanding, are being performed by employees who position has been included in some other more senior classification." This approach of the Board has been approved by the courts. [See, OPSEU and Brecht v. The Oueen in Risht of Ontario, (1982j 40 O.R. (2d) 142 Ont. Div. Ct.]. In OPSEU and Lowman v. The Crown in Richt of Ontario, April 22, 1985; Ont. Div. Ct. (unreported), the court stated as follows in quashing the Board's decision: 8 In our opinion the Board erred in failing to apply the second test in OPSEU vs. The Queen in Right of Ontario et al (1982) 40 OR (2d) 142 (Brecht's case). Having found that there was an employee performing substantially the same duties as the grievors and that such employee had been deliberately classified by the respondent in a higher classification, the Board acted unreasonably and without jurisdiction in failing to find that the grievors would be properly classified in the higher classification. It follows that we must now examine whether the two grievors meet this usage test. That is, have they established that they perform substantially the same duties as an employee or employees whose positions are classified as ST3? The evidence is uncontradicted that on a day-to-day basis, the grievors work alongside ST3s as members of a survey crew and that ST2s and ST3s perform the day-to-day tasks interchangeably. Sometimes a crew may consist of only ST3s and at other times it can consist of only ST2s. The work gets done in the same way in both situations. However, the employer led some evidence to suggest that the grievors have not been called upon to perform some tasks that are within the ST3 class standard and position specification. Counsel contended that the grievors in fact lacked the knowledge and ability to perform some of those duties. For example, during cross-examination counsel tested each grievor on how he will do a "curve calculation". It was also suggested that the grievors are not called upon to do 9 things such as title searches, perform complicated calculations and perform the role of "keymanV' (although the evidence relating to Mr. Serkies is that he has performed as keyman once). While on first blush this appears to indicate a distinction between the duties performed by ST2s and ST3s, upon closer examination of the rest of the evidence we find that that is not so. The evidence is that the party chiefs do not rely on the employees' classification as the basis for assignment of duties. On the contrary, a party chief relies on his knowledge of the employees' abilities and experience, and picks a person who he feels has the ability to perform the particular task. The evidence is that some ST3s are never called upon to perform some of these duties either. In relation to some other duties, the evidence is that the party chief does not call upon either a ST3 or ST2, but does it himself. The conclusion to be drawn from all of this is that the distinction drawn in assigning these tasks is not on the basis of the employees' classifications, but the party chief's judgement as to their knowledge and ability. The only evidence that indicates a consideration of the employees" classification in assigning duties pertains to the selection of employees to replace a party chief on an acting basis during the party chief's absence. Mr. John Nagy a ST3 10 testified that if he were the party chief and if he needed someone to replace himself he would select someone from the crew who was familiar and knowledgeable about the particular work to be performed. He would appoint a ST2 if it was only for a day or two and provided he was satisfied about the ST2's ability. Mr. John Houlahan who has held the position of Party Chief for 4 years and Senior Party Chief for 12 years testified that he has never appointed a ST2 as acting party chief. When asked why, he said that the primary reason was that there was always a ST3 in the crew. He always appointed a ST3 to act as party chief rather than a ST2 because he felt bound by the position specifications. In other words, because the position specification for ST2s did not include acting for the party chief, he did not appoint a ST2. Mr. Anthony Cairns, also a Senior Party Chief and a former Party Chief testified that he would appoint a ST2 as acting party chief provided it was only for a few hours. Does this evidence relating acting party chief duties establish that the grievors' duties were substantially different from that of ST3 members of the crew. We do not think so. It must be remembered that the two grievors were the only ST2s employed by this employer. In all of the instances we heard about, the party chief had a choice of .- 11 selecting a ST3 or ST2 from among his crew members. The party chief selected a' ST3 in these cases. However, what is very significant is that the party chief picked his replacement based on hisjudgement of the crew members' ability to perform the role of party chief. That is absolutely clear. It is the uncontradicted evidence that as a result there were a number of ST3s who have never been called upon to act for the party chief. The evidence is also that no employee will be asked to act for the party chief unless he or she voluntarily agrees to do so. The result is that there are a number of employees who have never acted as party chief, but are classified as ST3. In light of this evidence, the fact that the grievors have not been called upon to act for the party chief does not indicate a significant difference between their duties and those of ST3s. The employer witnesses agreed that the ST2 level is a trainee or underfill level in this series and that the ST3 level was ."the working level". The grievors have performed these duties as members of a crew for many years. As already noted, in their day-to-day work they work alongside the ST3s performing any task that may come up. While they may.not. perform some complicated tasks, tha,t is also true,of at least. some of the ST3s. On the basis of all of the evidence we cannot find that the grievors were performing at a training or underfill level. Instead they were working alongside the 12 ST3 members of the crew as equal members. When a particular task had to be assigned, it was done on the basis of the employees' ability to do that task. only the industrious and enthusiastic ST3s who volunteered performed the more complicated tasks. Those who were less ambitious and keen were not forced to do these tasks. The result is that the duties of the latter ST3s are substantially the same as that performed by the grievors. In our view this evidence establishes that the grievors were performing substantially similar duties as a number of employees whose positions are classified as ST3. Accordingly, the union's usage argument must succeed. We therefore find that the positions of the two grievors are improperly classified as ST2. The employer is directed to reclassify their positions to the ST3 level and to compensate them with interest, with retroactivity to 20 days prior to the date of filing of each grievance. The Board remains seized in the event the parties have difficulty implementing this award. , Dated this 2gth day of October, 1991 at Hamilton, Ontario Vice-Chairperson P. Klym Member x. Roberts Member