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HomeMy WebLinkAbout1987-1806.Brown et al.92-06-12SETTLEMENT RkGLEMENT DES GRIEFS ml ‘2JNDAS STREET WEST, s”mEzIoo, TORON7J0. ONI/\RID. M5G 72-B ~ELEPHONE~TE‘EPHONE: ,J 161 326. ,388 780, RUE DUNDAS OUEST, BUREAU *rco, TORONTO ,ONTARIO,. M5‘, IZB FncsIMM/r~L~coPr~ : ,” 16, 326.1396 1806/87, 749/87, 75op7, 753/87, x307/87, 1723/90, 1724/90, 1811/90, 1812/90, 1880/90,. 2021/90, 2189/90, 2222/90, 2243/90, 3148/9o, 1372/91, 1535/91, 1944/91, 1946/91, 1961/91 IN TliB NATTER OF AN ARBITRATION Under THE CROWN ENPLOYEBS COLLECTIVE BARGAINING ACT Before I TRE GRIEVANCE BETTLBNZNT BORRD BETWEEN OPSEU (Brown et al) - and - Grievor The Crown in Right of Ontario (Ministry of Transportation) Employer BEFORE: E. Ratushny Vice-Chairperson I. Thomson Member F. Collict Member FOR THE GRIEVOR R. Wells Counsel Gowling, Strathy & Henderson Barristers & SOliCitOrS P. Young Counsel Winkler, Filion & Wakely Barristers & Solicitors BEARING March 28, 1990 February 6, 14, 1991 December 17, 1991 These five grievances were heard as parts ! hearing with the consent of the parties involved. of a continuous Pursuant to a : series of Administrative Meetings, a number of additional cases ! were consolidated and grouped with these. These grievances all involve classification standards within ! the Clerk Supply Series. ; as follows: The gist of the cases may be described 1. The Grievor Brown is classified as a Clerk 6, Supply, who is responsible for the operation of a large stockroom. He claims that his responsibilities related to recent environmental regulations involve a substantially different role which is not reflected in the class standard applicable to him. ; 2. The Grievor Pecore is classified as a Clerk 2, Supply. He claims that since he is the second in charge of the stockroom in which he works, he more properly fits within the classification of a Clerk 4, Supply. ! 3. The Grievors, Robinson, Dickinson and Minard are in a similar position to each other and it was agreed by the parties that the evidence of Dickinson would be applicable to all three of them. Mr. Dickinson was classified as a Clerk 2, Supply but claims that this classification is inadequate since it fails to recognize his additional duties related to: (a) the operation of motor vehicles: (b) the impact of environmental legislation: and (c) the impact of ccmputerization. Following a brief survey of the applicable principles, the grieVanCeS of Messrs. Brown, Pecore and Dickinson each will be : addressed. General Princbles The principles applicable to classification grievances are >well-established in a long line of cases by this Board. A useful starting point is the following passage from &,&Jr GSB 1349/87 (Slone), at p. 8: On the caselaw which we have considered, the addition of new duties may take a job out of its original classification, but only where those duties are of such a kind or occur in such a degree as to amount to a different job altogether. See for example Baldwin and Wnst GSB 539/84 (Palmer) and Fenske, GSB 494/85 (Verity). As these and other cases show, the propriety of the classification is a factual issue to be decided . . 2 on the merits of each case . . . The onus is on the grievor to show that he is actually performing a job, the essence or core duties of which do not fit within the class standard to which it has been assigned by the employer. It is recognized that classification standards, by their very nature, must be drafted in general terms and are intended to describe only the essence of the work to be. performed. They cannot be expected to detail every specific task which may be involved. Nevertheless, the class standard must cover the significant elements of the job., Alexander, GSB 803/88 (Verity), at p. 8. Moreover, it must be recognized that the nature of a job and the manner in which it is performed may evolve with time: . . . nor are>class standards intended to designate tools or methods by which employees are to fulfil their duties. While it may be attractive to suggest that, becau,se a computer is a sophisticated piece of equipment, the operation thereof therefore puts greater demands upon an employee required to operate one and requires a greater degree of .gualification, this concept must, however, be put ,into the context of the purpose to which the computer is being used. Sovereion, GSB 241/91 (Low), at pp. 6-7. In .that case, the Board decided that both the job and the function were the same. It merely was being done with a better tool. Accordingly, the mere fact that a classification has not been revised in recent years does deficient: not necessarily render it The very fact that it was dated some 22 years ago does not necessarily mean that it cannot apply in 1988; but this Board feels that there can be some circumstances where the classification becomes so dated, it simply becomes outdated. Cabeza, GSB 909/86 (Epstein), at p. 3. However, the function of the Board is not to rule on re'levance or obsolescence of classification standards, as such. Rather, it is to interpret the application of such standards in particular cases and each case must be decided on its own facts. Parker, GSB 107/83 (Draper), at P. 8. In the cases at hand, can demonstrate a the Grievors will succeed only if they substantial difference between the duties actually performed and the classification standard which has been applied to them. They must demonstrate the performance of core duties which are absent from that classification standard. 3 At the relevant time, this Grievor was the Warehousing Supervisor at the Ministry of Transportation Stockroom for the Northern Region of Ontario, located in North Bay. His job is classified as Clerk 6, Supply, which is defined as follows: This class covers the positions of employees who, under . . .._ - . ge~neral supervision, are responsible for the operation of a large stockroom with five to nine subordinates. They ensure the careful checking of incoming stock, the shipment of stock against authorized requisitions and the neatness and security of the stockroom. They decide minimum maximum requirements; requisition supplies: maintain a perpetual inventory and complete stock ledger records; prepare reports of the operation for the supervisor. Their responsibilities often include supervision of the departmental printing and mail and messenger services. This class also covers the positions of supervisors in charge of a centralized stockkeeping operation in Ontario Hospitals of over five hundred bed capacity. This class covers the positions of supervisors in reform institutions in charge of centralized stockkeeping operations with an annual stock turnover value of more than $600,000 and less than $1,500,000. IHe reports iFleming. to the Head of Purchasing, Supplies, who was Mr. Be* The Grievor takes the position that by 1987, his duties were :substantially different from the classification standard as a :result of responsibilities imposed upon him to administer new :environmental legislation. In other words, he assumed core ;duties which were absent from that classification standard. On February 19, 1987, imemorandum sent from Mr. the Grievor received a copy of a Fleming to the Environmental Office of .the Ministry of Transportation. Mr. Fleming !memorandum in his capacity as signed this "Waste Management Co-Ordinator". iThe purpose of this document was to designate the Grievor as the ,"Waste Site Supervisor" .located in North Bay. for the Northern Region Stock Yard, Recent legislation had imposed strict requirements for the .handling, storage and transportation of dangerous hazardous products goods, and hazardous wastes. The Grievor worked ,closely with Mr. Fleming to develop proper methods to deal with these matters in compliance with the applicable legislation and regulat.ions. Prior to this time, the North Bay Stock Yard had ,dealt with the same products but with much less regard for thealth, safety or environmental consequences. For example, I . ., I ., . . . 4 hazardous wastes might have been deposited in gravel pits or poured down drains. Detailed evidence was presented as to the documentation, record-keeping and reporting which the new regulatory scheme had superimposed upon the Grievor's job duties. However, these new requirements may be summarized as follows: The need to know the types of wastes- covered by the regulations and the related. responsibilities of the generator, carrier and receiver of such wastes; The need to notify the proximate fire department when certain materials are present; The need to confirm on each occasion that carriers removing certain wastes are authorized to carry those particular wastes; The need to apply proper labelling to containers: The need to ensure proper placarding of vehicles in accordance with type of load: The need to understand, explain and administer directives distributed by the Environmental Office of the Ministry of Transportation and by Mr. Fleming; The need to receive periodic reports from district offices and to file those with the Ministry of the Environment; The need to respond to special situations eg. the accumulation of water in underground storage tanks of used motor oil: The need to understand and ensure the proper documentation of dangerous goods: The need to assume sole signing authority for certain documentation (in the absence of the Grievor, Mr. Fleming could sign). The Grievor testified that after the initial adaptation, approximately 60% of his working time was devoted to these environmental responsibilities. Mr. Fleming testified that the figure was from 25% to 35%. In any event, the Employer characterized these responsibilities as being essentially the . same as his other duties i.e. receiving, storing and issuing. The Board does not agree. While some of these environmental ~responsibilities might be encompassed by the current classification standard, certain core duties are omitted. The classification standard does not recognize that the new regulatory scheme has superimposed upon the Grievor's position a . 1 broad responsibility to ensure compliance with that scheme. ' 1 added responsibility was recognized in the Grievor's designa% as Waste Site Supervisor. He is required to check documentation and to ensure compliance on the part of carriers. In other !words, he is not merely required to comply with the legislation iand regulations himself but also to administer them and to ensure Ithat others comply. This is a substantial, additional !responsibility which cannot be characterized as merely the ;evolution of the duties of the job or the manner in which they 'are carried out. In his thoughtful Dissent, our Colleague has asked the 'following questions: (a) Does the introduction of G.S.T. require reclassification of a Sales Clerk when that sales clerk is already collecting P.S.T.? (b) Does the introduction of certain Human Rights Legislation change the classification of an uterview 1; who must be alert to and aware of potential claims of discrimination, failure to accommodate, etc.? (c) Does the introduction of Health h Safety regulations (WHIMS) change the classification of office personnel who place hazardous fluids into a Xerox machine? ,In our view, subject to other facts, these situations might not require reclassification. However, different considerations might :well apply if an employee were designated as having primary 'responsibility in the workplace for every aspect of G.S.T. ,collect.ion, human rights enforcement or environmental safety. In the circumstances, a Berry order is appropriate and the Jmployer is ordered properly to classify the Grievor Brown's .position within 90 days of the issuance of this award. The :Grievor is entitled to be compensated retroactively to 20 days .prior to the filing of the grievance including interest from that Edate in accordance with the practice of the Board. The Board remains seized all matters related to the . involving ,implementation of this award. #Grievor Pecore At the relevant time, this Grievor was a Warehousing Clerk 'at the same Stockroom as Mr. Brown. His position is classified as a Clerk 2, SUPPlY. However, the Grievor claims that he .satisfied the following aspect of the classification standard for ;a Clerk 4, Supply: 6 This class also covers positions of employees who are second in charge of a large stockroom... To qualify for this classification positions must have continuous responsibility for the efficiency of the. operations, work assignments and solutions of day to day problems and would assume supervisory charge of the stockroom during the supervisor's absence. The sole evidence on behalf of this Grievor was presented by Mr. Brown. Mr. Pecore, himself, did not testify. Mr. Brown testified that in 1984, he attended a meeting at which Mr. Fleming informed him and Mr. Pecore that during Mr. Brown's 2 l/2 week assignment to special computer duties, Mr. Pecore would be in charge of the stockroom. He also testified to a similar instruction on the part of Mr. Fleming in anticipation of Mr. Brown taking his accumulated holidays in 1987. Finally, Mr. Brown provided a list of periods during which he was absent from the office and during which Mr. Pecore assumed his supervisory role. Mr. Brown also related Mr. Pecorels experience and his role in training other clerks and summer students. However, Mr. Brown conceded that only Mr. Fleming was authorized to designate Mr. Pecore to assume supervisory responsibilities. On cross examination, Mr. Brown was unable to explain documentation which indicated that during many of the days on which he was absent, Mr. Pecore also was absent. Finally, Mr. Fleming flatly denied that he had delegated supervisory responsibilities to Mr. Pecore and stated that if neither he nor Mr. Brown were present, a Mr. Franklin would be in charge. (He was a Purchasing Officer 2.) In view of this conflicting testimony, the Grievor falls short of meeting his onus of establishing that he is improperly. classified. In these circumstances, the absence of testimony from the Grievor, himself, leaves a particularly large gap in his case. This grievance is denied. Grievors Robinson. Dickinson and Winard At the relevant time, these Grievors were Warehousing Clerks at the Owen Sound Stock Room of the Ministry of Transportation. They were classified as Clerk 2, Supply, which is defined as follows: This class covers the positions of employees performing a variety of routine manual and clerical duties in stockrooms. Under general supervision, they carry out a number of the various tasks connected with the receiving, storage, handling and distribution of a wide variety of equipment and supplies. They check incoming shipments against weigh bills for shortage and damage in transit; check quantities against packing slips and purchase orders; contact suppliers regarding short 7 shipments, delays, back orders etc; place items on shelves or bins, adjusting bin cards to keep perpetual inventory. They also maintain stock ledgers or cards showing the receipt and issue of all articles including the value of items on hand. They assemble orders for au.thorized requisitions: tag and address shipments: contact the conveyor and complete necessary records for the transaction. This is a terminal class for employees who perform in a supply area, simple clerical duties in conjunction with tasks requiring the frequent application of considerable physical effort or the operation of mechanical equipment. The Grievors take the position that the Clerk 2, Supply standard ; is deficient: in failing to recognize any driving duties; in failing to recognize current responsibilities related to dangerous goods and hazardous wastes; and, in failing to recognize current requirements related to the entry and maintenance of records on a computer. (This standard was adopted in October of 1964.) With respect to the entry and maintenance of records on a computer, the passage quoted earlier from Sovereign is directly applicable to the facts of this case. The adoption of a computer :was merely a tool or method for fulfilling the same duties. It ,did not place significantly greater demands upon the Grievors nor require a greater degree of qualification. It was simply a more :efficient method of compiling the same information, which had I been ccmpiled manually in the past. Evidence was presented that jthe computer requirements were extremely "user-friendly" and could be learned "within a day or two without any problem". In this case, the adoption of a computer to fulfil some of the j previous duties of the Clerk 2, Supply did not result in a ; deviation from the class standard. There is little.doubt that the standard is in need of re-writing. For example "bin cards" and "stock ledgers" have long been abandoned. However, that is not the function of the Board. The Grievors also fail to meet their burden of proof in relation to the more stringent requirements imposed in relation to the transportation of dangerous goods and the storage and handling of hazardous wastes. Unlike the Grievor Brown, these Clerk 2, SUPPlY Grievors did not have supervisory responsibilities for the administration of the regulatory scheme in relation to their warehouse. Their work in relation to these areas still involved: . . . a variety of routine manual and clerical duties in stockrooms. Under general supervision, they carry out a number of the various tasks connected with the receiving, storage, handling and distribution of equipment and supplies. 8 8 In other words, as In other words, as far as these Grievors were concerned, far as these Grievors were concerned, additional tasks were required by the regulatory scheme but their additional tasks were required by the regulatory scheme but their essential duties did not change. essential duties did not change. The issue of driving duties merits more detailed consideration. There is no reference to driving requirements in the classification standard for a Clerk 2, Supply. The position specification for the Grievors includes the following duties: Provides pick-up and delivery services of material, supplies and equipment between various locations in the District Central Stores and other Regional locations by performing tasks such as . . . - operating a three (3) ton dump truck . . . - performing daily vehicle maintenance inspection . . . The "pick-up and delivery services" are calculated to constitute 10% of the duties for this position. Possession of a valid Ontario Classified VP Driver's License and an appropriate M.T.C. Equipment Operator's permit are also specified as requirements for the position. The evidence disclosed that, in addition to operating the three-ton truck, the Grievors also operated ~a half-ton truck and a fork-lift. The evidence characterizing the fork-lift was not clear. It might be described as a motor vehicle since it is self-propelled. On the other hand, it might better fall within the term "mechanical equipment" 'as it is used in the classification standard. Prom a functional perspective, the fork-lift is only used in the warehouse yard and its purpose is similar to that of other mechanical devices used in the warehouse such as the manual hydraulic pallet lifter. The Warehouse Supervisor at Owen Sound at the relevant time testified that the fork-lift was in use for approximately one-hour per day or an average of twenty minutes per day for each of the three Grievors. If the operation of the fork-lift represents a deviation from the class standard, it is a very marginal deviation. A driver other than the three Grievors was exclusively to drive the half-ton truck. assigned The need for the Grievors to drive this vehicle only arose through his frequent absence due to illness and vacations. In these circumstances, we agree with the submission on behalf of the Employer that such temporary assignments do not alter the core duties of the Grievor's classification although they might form the basis for a claim for acting pay. This leaves~ the question of the driving of the three-ton truck. At one time, to drive this tNCk. a Highway Equipment Operator, was assigned He also had additional responsibilities in the yard. This position was later filled by contract and then abandoned with the driving duties subsequently distributed amongst~ Clerk 2, Supply employees, namely, the three Grievors. The records indicate that over the course of slightly more than a 9 year, prior to these grievances, the three-ton truck was driven on 34 days by the three Grievors. This amounts to less than 52 of the working time of each Grievor. The duty of driving a three-ton tNCk clearly is not reflected in the classification standard for a Clerk 2, Supply. However, in view of the relatively limited number of occasions on which the Grievors are called upon to perform this function (on average, less than once per month) this duty reasonably can be characterised as being incidental in nature. In conclusion, the Grievors have not met their burden of establishing a substantial difference between the duties actually performed and the classification standard which has been applied to them. They have not demonstrated the performance of core duties which are absent from the classification standard. dismissed. These grievances are Sated at Ottawa thisI2th day of June, 1992. "I Partially Dissent” (see attached I. Thomson, Member PARTIAL DISSENT RE: 1806/87, 749/87, 750/87, 753/87, 1807/87, 1723/90, 1724/90, 1811/90, 1812/90, 1880/90, 2021/90, 2189/90, 2222/90, 2243/90, 3148/90, 1372/91, 1535/91, 1944/91,. 1946/91, 1961/91 OPSEU (Brown et al) and the Crown in Right of Ontario (Ministry of Transportation) As this award relates to the grievance of.Brown, I concur. As this award relates to the grievance of Pecore, I concur. As this award relates to the grievances of Robins. Dickinson and Minard I dissent in part for the following reasons. I accept that portion of the award as it relates to the grievors use of the computers and the fork-lift. They are incidental tools used by the grievors to perform their job in the warehouse or yard. My dissent with the award is as it relates to the driving duties of the 3 grievors. As the award points out there is nothing in the Class Standard for a Clerk 2 Supply that relates to driving a vehicle. In my opinion it does not matter if the percentage is 5% or 10%. It is a duty not encompassed in the Class Standard. No where in the Class Standard Series for any Clerk Supply is there a requirement for a person to be in possession of an Ontario drivers license or a ministry license. If this requirement is allowed to be part of the qualifications for a Clerk Supply position it might very 'well deny an otherwise qualified person from securing the position because they do not have a valid drivers license. The driving duties were formerly performed by a person in a different Class Standard Series. As the award points out, this job was eliminated by having this job performed by the grievors. This is not a duty of the grievors classification and they should not be required to perform it. As part of their driving duties they are also required to hold a certificate to show they are qualified in the Transport and Handling of Dangerous Goods. The Act has subsequently been adopted by the Province of Ontario and others. There is a heavy penalty for a person who is in violation of this law. That is one of the reasons a person must be able to show a certificate of qualification if asked. Nowhere in the Clerk Series is this listed as a requirement. Therefore, as I said earlier, I believe this takes these people outside the Class Series and they should either be placed in another Class Series appropriate to their driving duties or given a Berry order. It should not matter if it is only 5% or 10% of their time. It just does not fit the Series. . DISSENT; I RE: G.S.B. #1606/67 (0. BROWN) Ii is the position of the Union that the introduction of environmental legislation has so changed the nature of Mr. Brown’s position as Warehouse Supervisor, that the class standard of Clerk Supply 6 is no longer applicable. In this respect, the Union argus that it is the QUALITY of the job that has changed as a result of the environmental legislation and that this gualitative change is suffldent to place Mr. Brown’s position outside of the Clerk Supply 6 class standard. h is the position of this Member that if the duties perfoned by Mr. Brown as a result of the introduced environmental legislation continue to fit within the Clerk Supply 6 class standard, the standard is appropriate and the grievance must fail. Moreover, it is possible t,hat the t&!& of Mr. Brown’s position has changed owing to the introduction of more highly structured and controlled documentation and procedures. However; this is a matter for neootiation of wage rates between the parties as opposed to an issue of reclassification. The above position is taken for the following reasons: 1. JURISPRUDENCE The G.S.B. jurisprudence relative to classification issues is set out in many cases, an illustration of which is as follows: “... the addition of new duties may take a job out of its original classification, but only where these duties are of such a kind or occur in a degree as to amount to a different job altogether. See for example Baldwin and Lvno, G.S.B. #539/84 (PALMER) and Fenske, G.S.B. #494/85 (VERITY). As these and other cases show, the pmpriety of the classification is a factual issue to be decided on the merits of each case.... The onus is on the arfevor to show that he is actuallv oerformina a iob. the essence or core duties of which do not fit within the class standard.30 which it has been assianed bv the emplover...” (underscoring added) G.S.B. #1349/87 (AIRD et al), p.8 2. DUTIES a) b) 4 e) Mr. Brown’s core responsibility is to supervise the stockroom on a day to day basis as set out in the Clerk Supply 6 class standard. He received, stored, shipped and inventoried virtually every hazardous material and dangerous goods listed on Exhibit 15 both before and after the change In environmental legislation. The change in duties related to documentation and the storaae and shiboing of waste materials; the requirement to meet the regulations set down in the environmental legislation; and the signature authorization relative to the release of dangerous goods and hazardous materials. Other people were licensed and authonzed to sign for the release of dangerous goods and hazardous materials. The Clerk Supply Series is broad in Preamble and contemplates a variety of administrative, stock-keeping, recording and supervisory activities. In effect, the essence of Mr. Brown’s core duties did a change with the introduction of changed documentation and procedures relative to the handling of dangerous goods and hazardous materials. 3. CHANGING LEGISLATION It is conceivable that the introduction of legislation may create new jobs or change existing jobs. However, Does the introduction of G.S.T. require reclassification of a u &&when that sales derk is already collecting P.S.T.? Does the introduction of certain Human Rights Legislation change the classification of an Interviewer who must be alert to and aware of potential claims of discrimination, failure to accommodate, etc.? Does the introduction of Health 8 Safety regulations (WHIMS) change the classification of office personnel who ptace hazardous fluids into a Xerox machine? !- , a) b) cl Clearly, the above types of questions set into perspective the issue in this case relative to the introduction of environmental legislation associated with dangerous goods and hazardous materials. In summary, the onus was upon the Union to show that the core duties of Mr. Brown did not fit within the existing Clerk Supply 6 class standard. In the view of this Member, that case was not made. As stated above, it may well be that a qualitative change in Mr. Brown’s job has occurred. However, that was not the issue before the parties; and it is an issue that should be dealt with more property through negotiation as opposed to rectassification.