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HomeMy WebLinkAbout1987-1970.Adams et al.90-10-31q m BOARD COMMISSION DE SElTLEMENT RkGLEMENT DES GRIEFS IN TEE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT . Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Adams et al) BEFORE: FOR THE GRIEVOR: FOR THE ENPLOYER HEARING: June 5, 1990 - and - The Crown in Right of Ontario (Ministry of Transportation) Employer B. Keller G. Majesky R. Scott Vice-Chairperson Member Member M. Webb Counsel Gowling, Strathy & Henderson Barristers & Solicitors C. Peterson Counsel Winkler, Filion and Wakely Barristers & Solicitors DECISIOY I ;The grievors are Microfilm Operator 2 (M02) employed by the I iMinistry of Transportation and Communications in the Microfilm jDepartment at Kingston. They seek reclassification to the iMicrofilm Operator 3 (M03) level. They rely on both a usage and class standard argument. mE CLASS STANDARD CASE The MO2 and MO3 class standards are respectively as follows: Qwerator 2. MicrQllm Employees in positions allocated to this class operate elementary microfilming equipment under general supervision to produce miniature film reproductions of a variety of documents, not involving high precision and snot normally involving adjustment of the focussing, usually for file or reference purposes. They ensure that the material to be microfilmed is free of extraneous material, and repair torn documents, load the film, insert the document and expose the film. They check the quality of developed film and locate wanted records by using the microfilm reader. They may produce copies of wanted documents from the microfilm negative using a printer or enlarger. They may maintain records of documents processed, dispatch film for processing and may check quality of the processed film remicrofilming where necessary. They clean the equipment and may mix chemical solutions. In some positions they may channel work to other personnel, destroy old files or operate auxiliary -3- equipment such as shredding and baling machines, editing and splicing equipment, and may operate photocopying equipment. These employees may train and/or supervise an assistant or filing clerk. Employees in positions in this class operate microfilm cameras of the planetary type to produce miniature film reproductions requiring a high degree of precision and involving the application of a high degree of skill. These employees process a variety,of documents differing in shape, colour, and general condition, and presenting problems in terms of tears,-wrinkles, folds, poor print, extraneous material, etc. These documents might include engineering drawings, blueprints, maps, charts, survey field 'notes, certificates, old vital statistics records, legal documents. These employees insert the document, and make the necessary adjustment to lighting, voltage, aperture, and focus, and may employ a densitometer to ensure precisely accurate exposure, taking exposure readings at intervals. They load film into the units and are responsible for minor maintenance of 'the cameras. They may develop film for test purposes or make copies and enlargements using such equipment as printers,. enlargers, dryers, editing and splicing equipment and photocopying equipment. They check the quality of film returned from the processors remicrofilming where necessary. These employees require only major technical problems and may be required to train junior personnel. This class also covers positions of group leaders, operators who in addition to operating microfilm equipment, supervise two or three operators engaged in routine microfilming work. These employees provide technical guidance to their subordinates, assign work -4- and check quality of the gork, keep records of documents processed and requisition supplies. The grievors are responsible for putting records of documents on microfilm. They develop and splice the microfilm, perform quality checks and provide a micro'film retrieval service. The job specification detailing the functions performed was described by one of the grievors as "pretty close". Each work section consists of six duties. Since 1984, the employees in each section have rotated between duties at three month intervals ensuring that they perform all theyduties outlined in their job specification. The cameras used by the grievors for microfilming are all ,rotary. films manufactured by Canon or Kodak. The cameras are essentially automated requiring a minimum of manipulation by the operator. Certain keying or coding.is required to keep a record of what is being recorded for retrieval purposes. According to Kaye Brown, the office supervisor, about one-half day training is required to operate the camera. For developing, a Kodak Prostar processor is used. Its operators -5- are responsible for setting it up in the morning (filling chemical trays, installing racks, verifying temperature) and cleaning it at the end of each day. The processing of film is fully automated. The operator puts the unprocessed film in one end and winds the processed film onto reels at the other end. One of the grievors testified that she had two weeks training on the operation of the Prostar but the basic operation can be learned in 30 minutes. In addition to the above majorpieces of equipment, the MO2 operators also use a densimometor to test the film, and a Kodak IMT-50 Microimage Terminal to retrieve film. The grievors perform minor maintenance on their equipment. They are supposed to refer anything other than minor problems to their group leader. It would appear that, at times, they may perform more complex maintenance either with or without the knowledge of their group leader. Employees at the MO3 level are required to operate a planetarytype camera. This is a large camera which is essentially manual. operators are required to set the lighting, ithe aperture and align the document to be filmed. Mr. Downing 'who used to operate a planetary camera, testified that it took 1 lthree months to be proficient in its use. Those classified at 'the MO3 level are the group leaders.; ,For a class standard argument to succeed, it must be demonstrated that the essence of the job does not fit within the assigned class standard: that the core duties are somehow sufficiently :different so that another job is being performed. When it is ,argued that another class standard is more appropriate, it must :be proven that the core function of the job and the class standard are essentially and substantially the same. In the instant case, the class definition for MO2 describes, with a considerable degree of accuracy the'principle core functions of :the grievor.. Although there may be some dispute relating to some ,of their minor, ancillary functions, there can be no argument that they do not do the work as described in the class standard. !With respect to the. MO3 class standard, it is apparent on a ,reading of it that the core function at this level is the operation of a planetary type camera. The grievors, by their own admission, do not operate this type: of camera. Although there .-.7 - may be an argument made that there is not a vast difference in the skills needed to operate the type of cameras used by the grievors as opposed to the planetary type, that argument, even if it was successful, does not change the result. What the Board has to examine is the functions required of the grievors, and on that test it is apparent that they do not perform the core function contained inthe MO3 class standard. Accordingly, the Board finds that the work of the grievors properly falls within the MO2 class standard. THE USAGE CASE The essence of the usage argument is that the grievor's are performing precisely the same work as Parveez Magbool, an M03. The employer concedes that is the case but submits that there.are particular circumstances in the instant case which cause the usage argument to fail. Mr. Magbool has,, been a permanent employee of the Ministry since 1980. In 1984 he grieved the denial of a promotion. On May 14, 1985 he agreed to withdraw the grievance in return for being appointed to the position of M03. On the submission of the parties, a panel of the GSB ordered the Ministry to assign him to the MO3 position effective April 22, 1985. - 8 -; On January 13, 1986 following a clatsification audit of the MO3 position, Mr. Magbool and the other MO3s were reclassified to I MO2. Salary protection was afforded them. ,That action resulted in the filing of an unfair labor practice before the Labor Relations Tribunal, which was unsuccessful. The grievors then filed the instant grievance. Al!1 this activity caused the .: Ministry to re-assess their action toward Mr. Magbool. On October 3, 1986 the following letter was sent to him: Recent activity involving the Labour Relations Tribunal and our microfilm operators gave us an opportunity to review you status as a red-circled employee due to your reclassification January 6, 1986. Considering our May 14, 1985'agreement with you, we have decided to remove your red-circling and reinstate you at your former level (Operator 3 - Microfilm) with the understanding that the Mlnistrv's stand reoardinq tie annronriate level for vour'nosition (i.e. Ooerator 2 - Microfilm) remains the same, and that this action will not prejudice the Ministry's case respecting the other complaints or future grievances/complaints. i (emphasis added) The argument on behalf of the grievors is that so long as they are able to show at least one person in the higher classification performing the same work as the grievors then regardless of the reason, the grievor must be reclassified. In particular, they -9- rely on the decision of the Divisional Courts in Re: Attorney General for Ontario and Ontario Public Service Emnlovees Union et & 440 O.R. (2d) 21. That judgment, we are told, stands for the proposition that even if a mistake is made in reclassifying someone to a higher ,position, or if that action.is an anomaly, that position may be used for comparison purposes. The Board was also referred to the decision of A.J. Jolly 1162/88 (Fraser) as supportive of that proposition. In the view of the Board, the facts in the instant case distinguish it from the cases referred to above. It is abundantly clear from the letter to Mr. Magbool referred to above that the action of reclassifying him back to the MO3 level was to honor a previous agreement and Board order. It is also clear that the employer in the letter took the position that the reclassification of Mr. Magbool was not to.be taken as affecting the substantive level of the position. In essence, Mr. Magbool was appointed to the higher level on a personal incumbent only basis. His "classification" changed, not that of the position. Thus, there is no mistake or anomaly with regard to the position. That continued to be considered by the Ministry at all times as being properly classified at the MO2 level. As a result, the I I - 10 -I I Wage argument fails. I bhe grievances are denied. Nepean this 31s~ day of October 1990. M. Brian Ke:ller, Vice-Chairperson ” I DISSENT ” (Disswt without written reason) G. Majesky, . Member R. Scott, '. Member