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HomeMy WebLinkAbout1987-0699.Bullock et al.88-08-23ONTARIO EMPLOveS DE LA CO”RONNE CROWNEMPLO”EES DE L’ONTARIO GRIEVANCE mm BOARD CPMMISSION DE SETTLEMENT REGLEMENT DES GRIEFS IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE.BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Bullock. et al) Grievers and The Crown in Right of Ontario (Ministry of Transportation) B. Fisher Vice Chairman T. Traves Member D. Montrose Member For the Grievers: R. Stoykewych Counsel Cavalluzzo, Hayes & Lennon Barristers and Solicitors For the Employer: P. Young Counsel Winkler, Filion h Wakely Barristers and Solicitors April 15, 1988 June 14, 1988 Hearings: Employer , DECISION This is a grievance involving Article 6 in which the grievors were classified as Highway Equipment Operator III (HE0 III) and arehiming that they are entitled to’ acting pay for the winter months at which time they were carrying out the duties of Night Patrol. : They are claiming they should be paid at the same rate as a Maintenance Crew Foremen which has a class title of Highway General Foreman/Forewoman I. The facts are not materially~in dispute. The operation of the various ministry yards are divided into summer duties and winter duties. In the summer, the HE0 IIIs performed tasks of a non-supervisory nature involving the operation of a certain class of vehicles, repair of roadways and general maintenance. In the summertime, the foremen carried on traditional foremen’s tasks involving 100% of their time being spent on the supervision of various work crews consisting of individuaJs like the grievers. In the wintertime, however, the duties changed radi&ly. During the winter, the grievors and certain foremen performed the job of Night Patrolmen. This’job was performed on a number of shifts but primarily on the afternoon and night shift. It consisted of patrolling an assigned area in a pick-up truck and observing both road and weather conditions. When the Night Patrolman observed a condition requiring action, like a snow covered road or a slippery’road, he would institute the appropriate action to remedy the situation. For instance, if he noted that a certain stretch of road was icy he would call into the yard and speak to the Checker, who was another bargaining unit person. He would indicate to the Checker that he should call the sanding or salting contractor to come and utilize two loads of sand on a certain stretch of highway. The Checker would then call the contractor to~perform liis duties. The Night Patrolman, in .~ .~ the course’of his normal patrol duties, would then revjew the, job of the contractor to make sure that it was done. The Night Patrolman may also call Ministry of Transportation employees to operate snowplows. Where only a few snow plow operators were required, he would call into the Checker and the Checker would generally determine -2- who was to be called in by using an overtime list. This list was prepared by the Patrol Supervisor who used various methods of determining who would be called in, but generally speaking, the Checker would call in Snow Plow Operators in accordance with their accumulated overtime. In these situations, the Night Patrol Person would assign tasks to the Ministry employees and generally review the work to make sure that it was being done. When the work was completed, he could assign further tasks to the Snow Plow Operators. There was some evidence, however somewhat sketchy, that he also would have the ability to instruct the foremen where to operate a snow plow, for instance, if a foreman was called in for emergency work during the night when the Night Patrol Person was on duty. It was admitted by the employer’s witness that the functions performed by the foremen performing night patrol’duties were virtually identical to the functions performed by the HE0 IIIs when performing night patrol duty in the winter. Tbe question then arises as to whether or not, given that approximately 40% of the time the HE0 IUs are performing the same tasks as general foremen, they should be compensated as a general foreman for the period of time they are performing that job function. A leading case in this area is that of Collins (0807/85), a decision of Vice Chairman Kirkwood. In a case involving the same issue of determining the entitlement under Article 6.1, the Vice Chairman states at p. 4 Thefirsr element that the union hm topmve was that the grievor was assigned to a job which was not part of his own job. In other words, the Union can only succeed if in fact the duties performed by the HE0 III as Night Patrolmen, did not constitute the job of an HE0 III. i -3- The evidence is clear, both in the class standards and in the position specifications for the HE0 III position, that night patrol duties are an integral part of the job. The HE0 III class standard contains the following provision a+ a requirement of the job. It should be noted that type A equipment includes a pick-up truck of the sort used by the HE0 IIIs to perform their Night Patrolmen duties. Secondly, in the further comment on the class, definition of an HE0 III it indicates that the duties of the HE0 III fit into the following category: : “C”. 0 erate type A equipment in summer and act as Night Pp atrolmen in winterfor a to&al of 70% or more of the year’s working time. A further reference is made in the class standards of the fact that f$zx$rol a@nm.ents must be at least 4 months’ A similar reference to night patrol duties is fouid’in the’class standard for an HE0 11s and HE0 Ns. Furthermore, in the position specification for HE0 III tinder the provision of purpose of position it includes the following words, Performs the duties of night patroller when assigned Furthermore, in the position specification for HE0 III there is a reference to the f&t that an HE0 III must operate / Type A~equipment in sumtier and ct. as mght patrolman * in winter for a total of 70% or more of the years working time. ,. . Also in the position specification there is the following reference under duties,. As Night Patroller, patrols and visually inspects road orders a snow plow or sanding crews as required. - :. -4- Prepares reports of shif operations. Auiliaty duties. May be required to supervke and direct a group of labourers as assigned I It therefore seems clear, based on the class standard and the job specifications that the position of Night Patrolman is an integral part of that of an HE0 III, therefore, if what the grievors were doing in this job constitutes that of a Night Patrolman then they have not passed the first test in Collins that is, they have not shown that the work they were doing was not already part of their own job. A decision which at first appears to be very similar to the fact situation before this Board is that of Dunec (0341/86), a decision of Vice Chairman Fraser. That case involved a similar fact situation involving an assessment of the night patrol duties of an HE0 III. The Vice Chairman says at p. 8 of that decision the following: He then goes on in the Dunec decision to find that Mr. Dunec performed duties more like a foreman than of a night patrolman, however, there were important differences between the duties performed by Mr. Dunec and those performed by the grievors. Specifically, the differences appear to be as follows: 1. Mr. Dunec directly supervised other foremen on a continual basis when he was the foreman starting on a Sunday of a particular week. In this case, the only evidence is that the grievors had some authority to assign work to a foreman when he was called out on an emergency. Furthermore, in this case, the authority of the grievors seemed to be simply that they could assign work to a foreman,’ not that they could supervise him in the true sense of the word, in other words, they could not discipline him or do other similar things which are characteristic of supervision, r 2. In listing the functions performed by Mr. Dunec, the Vice Chairman refers to things such as “supervision of winter maintenance operations, direction of activities of sending crews and dispatching of snow plow operators.” In this case, although the grievors were involved with the direction of sending crews and dispatching the Snow Plow Operators, there was no evidence that they were involved with the supervision of winter maintenance operations. 3. In Mr. Dunec’s case, all of the other Night Patrollers were foremen and he was, made a Night Patroller only after another foreman left his position. In this case, management utilized a number of people to perform the Night Patroller duties, including some foremen, some HE0 11s and HE0 IIIs. The union admitted in argument that Night Patroller duties per se were part of the HE0 III job description but insisted~that in the facts as shown in this case that ,mere was sufficient supervisory duties to qualify for pay under Article 6.1. However, when pressed, Union counsel agreed that only a limited portion of the Night Patroller’s duties involve supervisory tasks so that the patrolling of the roads, observation of problems conditions, the phoning of those conditions to the Checker and instructing the Checker to call out work crews would all be part of the Night Patroller’s proper duties. The Unions insisted, however, that the review of the contractor’s work and the assignment of tiork duties to some degree constituted supervisory work similar to that performed hy Mr. Dunec. However, in order for ‘the Night Patroller’s job to be a viable position, thii Board feels that it is implicit in that description that the Night Patroller would have to have the limited supervisory duties that he exercises in this case and to strip the Night Patroller of those duties which the Union calls supervisory would be to emasculate the position., It must be that if there is reference in the job classification and the job spehiication to the position of Night Patroller that it is a whole job, including all of the essential aspects of the job necessary to perform the job. This Board therefore finds, that on the evidence before it, that the functions performed by the grievers as Night Patrolmen is contained within their job specification and their class standards and therefore they have failed to pass the first test of the Collins case. is denied. Dated this 4. day of August, 1988 at Toronto, Ontario. l/D. M \ ontrose, Member