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HomeMy WebLinkAbout1990-1031.Cant & Climenhage.91-06-26EMPLOV~SDELA CO”RONNE DE “OhmRIO CPMMISSION DE REGLEMENT DES GRIEFS 1031/90, 1032/90 IN THE NATTER OF AN ARBITRATION under THE CROWN EMPMYEES COLLECTIVS BARGAINING ACT Before THE GRIEVANCE SETTLBMENT BOARD BETWEEN OPSEU (Cant/Climenhage) - and -. The Crown in Right of Ontario (Ministry of Tourism and Recreation) Grievor Employer BEFORE: W. Kaplan P. XLym D. Daugharty Vice-Chairperson Member Member FOR THE GRIEVOR D. Wright Counsel Ryder, Whitaker, Wright & Chapman Barrister & Solicitors FOR THE S. Gleave EMPLOYER Counsel Hicks, Morley, Hamilton, Stewart & Storie Barristers & Solicitors HEARING: December 17, 19900 June 3, 1991 2 Introduction By identical grievances dated June 4, 1990, Jody Cant and Robert Climenhage, seasonal employees with the Ni.agara Parks Commission (hereafter "the Commission"), grieve that they are improperly classified. The remedy sought in both cases is identical: correct classification. A hearing was convened in Toronto, at which time counsel for the employer made certain preli,minary objections with respect to the arbitrability of the matter in dispute. Suffice it to say that these objections were subsequently withdrawn and the merits of the case were a'ddressed. With the consent of counsel for the employer, Mr. Climenhage gave evidence as a representative grievor. Many, if not most, of the facts in this case are not in dispute. The Commission does not have written position specifications for the positions occupied by the grievors. Nor does it have class standards for these employees. The grievors are nevertheless classified as Labourer 3's. By an Appendix to a Memorandum of Settlement dated April 26, 1989, the parties agreed on rates of pay for seasonal employees, This rating system was in effect at the time of the instant grievances. 3 The rating system provides, on page 2: All Journeyman Tradesmen will be paid the 1st step of their trade classification provided a copy of their Journeyman's Certificate is filed with the Human Resources Department. Uncertified Tradesmen will be classified as Labourers and naid at the 1st sten of the Manual Worker Rate (emphasis ours). In brief, it was the union's position that the grievors were "uncertified tradesmen" in that they were doing the same work as a "certified tradesman," and so should be paid at the Manual Worker Rate. An alternative argument was also advanced to the effect that the grievors should be reclassified to Labourer 4. Given our disposition with respectto the primary union claim, however, it is not necessary to address this alternative argument. For its part, the employer argued that the grievors were properly allocated to the Labourer 3 position, that they were not doing "tradesman" work and so should not be paid at the Manual WorkerRate. Mr. Climenhage testified 'on both grievers' behalf. He has been a seasonal employee of the Commission since 1984. Mr. Climenhage is assigned to the Sign Painting Shop, which is part of the 0 Engineering Department. As a seasonal employee, Mr. Climenhage works nine months a year, generally from March to the end of November. The Commission is responsible for approximately 35 miles of parkland, tourist attractions, historical sites, and so on. The 4 Sign Painting Shop is responsible for producing and erecting all of the signs needed by the Commission, for its roads, restaurants, tourist attractions, parking lots etc. There are four employees in the Sign Painting Shop: three seasonal employees (Mr.. Climenhage, Mr. Cant and Mr. Howard Sullivan) and one Sign Painter,. Mr. Phil Nicholson. Mr. Nicholson is a full-time employee and is also a certified sign painter, having served an apprenticeship in sign painting. The three seasonal employees are staggered so that there are always two people, Mr. Nicholson and one seasonal employee, working in the Sign Painting Shop. By and large, the grievors spend most of their time out on the road erecting signs, although this can vary considerably depending on conditions in the Sign Painting Shop., Mr. Climenhage testified .that in his first year on the job he workefd almost exclusively in the Sign Painting Shop. In other years, h,e may be called upon to spend up to a month at a stretch working in the shop. It would depend on what needed to be done, and what assistance Mr. Nicholson required. When the grievors work in the Sign Painting Shop, their main activity appears to be preparing sign boards. The grievors are not. responsible for cutting the boards, as that is done by the carpenters. The Board heard considerable evidence about exactly how the~grievors prepare the sign boards. They take a plain board and apply a coat of primer to it. Then they apply putty to the /- ~.. 5 rough ,spots, and then they sand and finish'both sides. Another coat of primer is then applied, and when it drys a reflective border is applied. It is essential that the board be very smooth, that there be no streaks ,and that it look good. After the preparatory work is completed, the grievor may, but likely will not, be involved in the next part of the process: applying the sign. The Sign Paint Shop makes extensive use of a "signmaker 2" computer. Basically, the information that is to appear on the sign is entered into this machine. The machine then produces the actual sign, which is applied to the previously prepared board. Mr. Nicholson does most of this work, and although he did not testify, it appears from the evidence that he does this work for the greater part of his working time. It should be~noted, however, that the.griev0r.s know how to operate this machine, and are occasionally called upon to do so. It is also worth'mentioning at this time that Mr. Nicholson has virtually no involvement in the installation of signs. The only exception to'this is that if on a weekend there is an immediate need for a sign to be prepared and installed, Mr. Nicholson will be asked to do so. Other than painting the sign boards as part of the preparatory process, the grievors are also called upon to paint the sign posts and the back of signs. From time to time they must also sand away rust on metal posts and repaint them. 6 Introduced into evidence was the "Proposed Schedule of training for the Non-Regulated Trade of Sign Painter." This schedule lists ten different areas of work experience and training necessary .to become a certified sign painter. They are as follows: Safety Knowledge of all safe practices, recog:nition and removal of hazards. Eouiument Tools, equipment and rigging including the use, maintenance and care of circular saws, jigs, and hand drills, screening equipment and brushes. Spraying principles and equipment. Construction The construction and erection of signs, framing of signs, cutting of materials brackets and h,angers. Cutting shapes and letters for store-front sign erection. Colours The principles of mixing and matching of colours. Knowledge of colour spectrum and base structures such as oils, enamels and lacquers. Backsrounds Preparation and application of primary or ground coats. Sanding and putty work. Use of brush, rolling and spray applications. Guildinq Guildinq Principles of applying heraldry and guilding to glass and Principles of applying heraldry and guilding to glass and other surfaces. other surfaces. Applications of gold in high gloss, Applications of gold in high gloss, matte and burnishing finishes. matte and burnishing finishes. Desisn Layouts and design of sign work. Principles of harmony and space proportioning in designs. Letterinq Types of alphabet and appropriate usages. Knowledge of brushes to be used for effect. Silk Screen Silk screen printing, stencil cutting,. stencil making, tones, blends of stencils, types of st(ancils. Plastics Identification and type of plastics, cutting and 7 processing of plastics, decal materials, plexi-glass sign faces, etc. Paints to be used on plastics. Mr. Climenhage testified at some length with respect to his experience in each of these areas. He told the Board about the various safety equipment that he uses such as safety goggles, hard hats, "men at work" signs, and about the necessity of obtaining information before digging new post holes. With respect,to the different equipment indicated on this list, Mr. Climenhage testified that he did not use circular or j.ig saws in the Sign Paint Shop, but that he did use a chain saw and hand saw in the sign installation process. He also used a drill press in the Sign Paint Shop, and had a reversible drill and a hammer drill on his truck. He also had a jackhammer on the truck, which was used for drilling holes for sign posts. Mr. Climenhage testified that he used a post hole digger, and a photograph of the machine was introduced into evidence. He also used cutting torches to heat up sign brackets in order to straighten them. Other equipment used included a handgrinder, an electrical generator, ladders; levels, shovels and rakes. Mr. Climenhage testified that there was no spraying done~.in the Sign Paint Shop. The grievors; as already noted, spend a large part of their time preparing the sign boards and installing signs. Mr. Climenhage 'testified to also being involved in the framing of signs. The signmaker 2 produces most of the letters needed so there was , 8 little, if any, need to cut letters. Some cutting was 7 still required, if, for example, it was necessary to produce an outline of a picnic table to appear on a sign. These symbols are produced by hand, and although the grievor could produce them, in general, Mr. Nicholson was responsible for this work. With respect to colours, Mr. Climenhage testified that there is very little mixing to be done as the Sign Paint Shop generally uses a basic green. Sometimes a little tinting of this paint would be required. Mr. Climenhage did not do any guilding, and what design that was done was generally done by Mr. Nicholson and the signmaker 2 machine. The same could be said with respect to lettering. In terms of silk screening, very little of this activity took place, but when it was required, the grievors would assist Mr. Nicholson in doing it. Mr. Climenhage testified that he worked with plastics, for example in preparing washroom signs. By and. large the grievors work without supervision. They are assigned some tasks in the morning and then are left on their own. The grievors, unless directed otherwise, establish their own priorities. In general, Mr. Climenhage tesitified that he did all of the work indicated on the above list that was done by the Commission and by Mr: Nicholson. In summary, the main difference between the grievors' and Mr. Nicholson's work is that the grievors spend more of their time installing signs, and Mr. Nicholson has more responsibility for operating the signmaker 2 machine. Mr. i 9 Climenhage also pointed out that Mr. Nicholson takes lengthy annual vacations, and when he is away the grievors do some of his work. Mr. Climenhage has on numerous occasions been assigned long-term duties in the Paint Shop. The Paint Shop is adjacent to, but distinct from, the Sign Paint Shop. The Sign Paint Shop is responsible for painting and installing signs. The Paint Shop is responsible for painting buildings, interiors and exteriors, furniture, etc. Over the course of this .employment with the Commission, Mr. Climenhage has worked in the Paint Shop for approximately 22 months. He‘can, therefore, be said to have some familiarity with Paint Shop activities and responsibilities. __ There are five people who work in the Paint Shop: three are full- time, and two are seasonal. Unlike the~grievors, the seasonal employees in the Paint Shop receive the Manual,Worker rate. Mr. Climenhage testified that both full-time and seasonal workers in the Paint Shop do the same kind of painting .work, although the full-time workers may do more of the finished quality work, and painting of furniture such as pianos where a high-quality paint job is required. Both .the Sign Paint Shop and the Paint Shop are supervised by Mr. Earl Lafferty. Mr. Climenhage testified that a typical paint job assigned to the Paint Shop would be to paint a room. That would involve one person doing the cutting work and another doing the rolling work. Mr. 10 Climenhage testified that the level of skill, knowledge and expertise that was required by him when he was working in the Sign. Paint Shop was much higher than that required when he was working in the Paint Shop. There was some evidence with respect to whether or not the full-time painters in the Paint Shop were certified. Mr. Climenhage also gave some evidence with respect to certain persons who were classified and paid the Labourer 4 rate, such as the grass cutters, and gave his understanding as to why they were receiving a higher rate than he was. It is not necessary to review this evidence in that it goes to the unia'n's alternative claim. As previously noted, we have det:ermined that this case can be decided based on the union's primary claim.. In cross-examination, Mr. Climenhage agreed that he has not taken any formal' training in sign painting, nor has he served as an apprentice sign painter. Mr. Climenhage reiterated his evidence about his extensive experience in the Paint Shop, and he testified that when he was assigned to the Paint Shop on an outside job he would be paid the Manual Worker rate. Mr. Climenhage was asked how he knew.what Mr. Nicholson did on a daily basis if he was out on the road for a significant proportion of his time. In.reply, Mr. Climenhage referred to the months on end that he would sometimes spend in the Sign Paint Shop, and he also pointed out that he would be in and out enough over the course of a day to formulate a fairly good impression of what Mr. Nicholson was up to. I 11 Similarly, his experience in the Paint Shop and working.on paint crews gave him a good idea as to the nature 'and complexity of the painting work, and in this regard, he repeated his evidence-in- chief that the work of preparing sign boards to the quality required and then installing them required greater skills and ability than the painting work in the Paint Shop. Mr. Climenhage was shown a position specification for the,full-time sign painter position and was asked if he had performed the various duties indicated on it. By and large, his evidence was consistent with his earlier testimony in which he described at 'length his duties and responsibilities. Accordingly, there is no need to set it out here. Mr. Climenhage was also shown the position specification for the full-time painter position and asked what duties and responsibilities on it he had performed. We find, however, that this evidence is not material to the issue before us. The grievors are not seeking the painter classification, and so what painting duties they may or may not have performed does not assist us. Mr. Nick Murphy testified on behalf of the employer. Mr. Murphy is the Director of Engineering, and has been in that position for approximately two-and-a-half years. He has been with the . Commission for more than nine years in progressively more senior positions. Mr. Murphy gave some evidence about the differences between the job performed by the grievors and that performed,by the 12 seasonal employees working in the Paint Shop. It will be recalled that the grievors are paid at the Labourer rate, while the seasonal employees in the paint shop are paid at the Manual Worker rate in accordance with the provision from the Memorandum of Settlement extracted above. Mr. Murphy testified that the painters are expected to produce a higher-quality finished product than the grievors. Moreover, Mr. Murphy testified that the major activity in the grievers' position is to erect signs, not paint them, while the major activity of the seasonal employees in the Paint Shop isto paint. Mr. Murphy also referred the Board to those parts of the Sign Painter position specification that the grievors did not perform. Again, his evidence was largely consistent with that of Mr. Climenhage. The grievors did very little letter cutting, for example. Mr. Murphy also said that Mr. Nicholson was responsible for the design of the sign, and in exercising that responsibility he would select sizes, colours, designs, etc. That was something that the grievors did not do. Mr. Murphy testified about his understanding of the operation of the clause from the Memorandum of Settlement cited above. It applied, he testified, to someone who was doing the job of a certified tradesperson but who was not himself or herself a certified tradesperson. With respect to the Paint Shop, it applied to the seasonal employees because they were doing painting trade 13 work. The grievors were not being paid the Manual Worker rate because the employer was of the view that they were not doing sign painter trades work. When the grievors worked out of the Paint Shop they would, in contrast, get the Manual Worker rate, because the employer was of the view that this was trades work and so should be paid according to the above-noted term. In cross-examination, Mr. Murphy agreed that he has never worked in either the Paint Shop or the Sign Paint Shop. He also testified that he has no reason to disbelieve Mr. Climenhage's.evidence of longstanding experience working in the Paint Shop. Mr. Murphy testified that Mr. Nicholson does not do installation work any more, but he agreed that installation work was part of the sign painter's job. With respect to some of the other duties performed by Mr. Nicholson, such as silkscreening, Mr. Murphy agreed that these jobs were not frequent. Mr. Murphy was asked whether the grievors had a wider range of skills and duties than the painters, and he replied that they used more equipment; Very simply, it was Mr. Murphy's contention that the grievors were not doing sign painter work and so should not be paid at the Manual Worker rate. They were doing installing work and were being paid at the appropriate rate. Union Araument Union counsel argued that the determination of this grievance boiled down to the requirements of the Collective Agreement, and I 14 in particular to the requirements of the Appendix to the Memorandum of Settlement. In the union's view, most of the evidence in this case was not in dispute. That evidence', counsel submitted, was to the effect that each aspect of the grievers' duties and responsibilities could be said to fall within the sign painting function. They were, therefore, doing sign painter work and so should, according to the provision cited above, be paid ,at the Manual Worker rate. Union counsel pointed out that Mr. Nichols,on did some things that the grievors did not do, but ,when the grievors' duties and responsibilities In virtually every aspect of the sign painting function were considered, the conclusion was inescapable that they were doing sign painting trades work. It was true that the grievors spent considerable time erectinq signs, but counsel pointed out that the employer's witness, Mr. Murphy, had testified~ that he considered this an important part of the sign painting job. Counsel also pointed out that the position specification for Mr. Nicholson's position listed this as one of the duties of the sign painter. Union counsel also pointed out various other duties listed on this position specification which the evidence indicated the grievors performed. Counsel agreed that the grievors do not have formal sign painting training. Nor were they in an apprenticeship program. Counsel argued, however, that this is not what the collective agreement required. What was required to obtain the Manual Worker rate was to do the trades work, and counsel submitted that this is what the grievors were doing. With respect to the evidence about the seasonal employees in the Paint Shop being paid the Manual Worker rate, counsel pointed out that this evidence was not elicited because the grievors considered * themselves to be painters. What then was the purpose of this evidence? Its purpose was to illustrate the deficiencies in the employer's classification system. Counsel submitted that the fundamental goal of a classification system is to ensure that equal work is equally compensated. Counsel was not arguing that the grievors should get the Manual Worker rate because they were doing paint shop work, but because they were doing sign painter work. In Beals & Cain 30/79 (Draper), the'Board said: 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 the same 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, (at 11). Counsel also referred the Board to- Re USW and Dunham Bush (Canada) Ltd d, 20 LAC 419 (Weiler) where the Board said, inter alia: "The 16 purpose of a wage schedule with different job classifications to ensure that equal work will attract equal pay and that relevant differences in skill, complexity, difficulty, etc. will be reflected in monetary rewards...(at 421). Counsel argued that both cases stood in favour of the union's sub:mission that the Board should find that the grievors are performing trades work and so should be paid at the Manual Worker rate as provided for in the agreement between the parties. Very simpl.y, the grievance could be and should be decided on the basis that the grievors', who were not certified "tradesmen," were doing uncertified trades work and so should be classified and compensated on that basis. Reinforcing this conclusion was the evidence with respect to how other similarly situated employees were classified and compensated. Emnlover Araument Counsel for the employer argued that the onus was on the union to prove a breach of the collective agreement, and counsel argued that this onus had not been met. Counsel argued that the work of the grievors has not significantly changed over the last few years, and that in any event, the evidence was to the e:ffect that the grievors did not perform the full range of sign painter duties. Accordingly, they were not performing the sign painter trade. Counsel also pointed out that the grievors were not dcling the painter trade either, and when they were assigned to the Paint Shop they were paid the Manual Worker rate. 17 In counsel's view, the~grievors' job was preparing sign boards and erecting signs. Counsel argued that the evidence was clear that the grievors were not, either qualitatively or quantitatively, doing sign painter work. The essence of the sign painter's job, counsel submitted, was what Mr. Nicholson did, ,not what the grievors did. Since the grievors were not doing the essential part of the job, they should not be paid as if they were ~doing this trade. Counsel also submitted that what the union was trying to put forward a usage argument, and he cited relevant authorities on usage to the Board. Counsel argued that the evidenc.e supported the employer in its determination that the seasonal painters were doing painting trades work, and that the grievors were not doing sign painting trades work. The seasona.1 painters were doing painting 100% of the time, while the grievors could not be said to be doing sign painting for anywhere near this proportion of their work time. Counsel urged the Board to dismiss both grievances. In reply, union counsel took issue with the employer's characterization that this was a usage case; and argued that this was a classification case, pure and simple. Whether the grievors were properly classified was the question to be addressed. The, union was not saying that the grievors were sign painters any more than it was saying that the grievors were painters. Accordingly, the case was not about usage. What the union was saying was that 18 the grievors were doing sign painter work. This work was a trade. The parties had agreed that persons who were performing trades work who were not certified should be paid the Manual Worker rate. The grievors were not certified. They were performing trades'work. They,should be paid at this rate because of this classification provision in the parties' agreement. The fact that the grievers' did not do everything that the sign painter did should not stand in the way of them receiving the appropriate classification and compensation given the fact that all the.work that they did fell within the sign painter trade. Decision Having heard all of the evidence, and having carefully considered the arguments of the parties, we have come to the conclusion that this grievance must be upheld. The grievors have a statutory right to bring their classification disputes before this Board, and we have an obligation to hear and decide them.. In the instant case, we find that the grievors are working as uncertified sign painters. While the evidence indicates that the grievors spend most of their time actually installing signs, we find that this is an integral part of the sign painter's .job as indicated in the employer's position specification and as indicated on the "Proposed Schedule of Training for the Non-regulated trade of Sign Painter." The grievors were doing the work of this trade and nothing else. Our conclusion in this regard is reinforced by the evidence which 19 we heard. Some functions which the grievors do not perform are not performed at all at the Commission. Other functions are performed to a greater extent by Mr. Nicholson. Nevertheless, it is our view that the significant preparatory work, as well asthe installation work that the grievors do, puts them squarely within the sign painter's trade. The parties have agreed that uncertified persons performing trades work should 'be paid at the Manual Worker rate. This is the classification system that the parties have designed and incorporated into their agreement. The grievors fit into this classification category and so they should be paid at this rate. We make this finding solely on the basis of the evidence which we heard with respect to the grievers' functions, duties and responsibilities. The evidence of what the seasonal employees did in the Paint~Shop merely demonstrates how the collective agreement provision should be interpreted. In the Paint Shop case, the employer has determined that the employees are doing trades work and has~given them the Manual Worker rate. In the instant case, we have determined that the uncertified grievors are doing trades work, and we are ordering that they be paid in accordance with the provision negotiated by the parties in their agreement. YThis finding goes directly to the classification of these employees, and we find that the term in question is, at its heart, a matter of classification. In the instant case, the employees have been improperly classified insofar as they are being paid at an incorrect rate. 20 Accordingly, we order that the grievors be reclassified. They~ should be classified and paid according to the relevant portion of the Appendix to the Memorandum of Settlement, at the Manual Worker rate. This order is, as is usually the case in classification disputes this come before this Board, retroactive to twenty days prior to the filing 'of the grievance,. We remain seized with respect to the implementation of this award. Dated at Ottawa this26th day of June 1991. W If William KaDla .n Vice-Chairperson h Member ,