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HomeMy WebLinkAbout1989-0026.Benning et al.90-07-06 ONTARIO EMPLO Y~-S DE LA COURONNE ~v~, CROWN EMPLOYEES DE L 'ONTARIO ~ - GRIEVANCE CQMMISSION DE SETrLEMENT REGLEMENT BOARD DES GRIEFS 't80 DUNDAS STFIEET WEST, TORONTO, ONTARIO. MSG 1Z$ - SUITE 2100 TELEPHONE/T~cL~'PHONE I80, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8- BUREAU2100 (416) 598-0688 26/89 IN THE F~ATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN: OPSEU (Benning et al) Grievor .. - and - The Crown in Right of Ontario (Ministry'of Housing) Employer - and - BEFORE: M.R. Gorsky Vice-Chairperson J. McManus Member E. Orsini Member FOK THE E. Wells GRIEVOR: Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. Rusak EMPLOYER: Counsel Mathews, Dinsdale & Clark Barristers & Solicitors BEARINGS: ~ July 13, 1989 August 31, 1989 AWARD Identical gr. ievances were filed by Harry Benning, Dennis Keil and Norman Leitch on Janary 9, 1989. In each case, the grievors claim that they have been improperly classified as Elevator Inspectors I and ask that they be re-classified. 7"ne position they state reflects a better fit with their duties and responsibilities is that of' Service. Supervisor II. One of the grievors, Dennis Keil, gave evidence on behalf of ali of them ,and it was agreed that this Award would goverh the case of all of the grievors, l'he .grievors work out of the Ministry Office located at 777 Bay Street, Toronto, and are responsible for inspecting elevating devices in buildings owned by the Ministry and by the Ontario Housing Corporation in the Province of Ontario. ~?he thrust of Mr. Keil's evidence was that the duties and responsibilites of the grievors had changed drastically over a nun~ber of years and when compared with those encompassed within the class standards of Elevator Inspector I and Service Supervisor II? the clear best fit was within the latter standard. It was' submitted on behalf'of the grievors that their request for reclassification was first'brought to the attention of mpnagement in written form by means of a memorandum dated November 4, !987, 2 sent by Mr. Keil to his supervisor, Bill Munro, the Chief of Elevator Services. /'he letter (Exhibit 6) is as follows: "November 4, 1987 "Memorandum to: Bill Munro Chief, Elevator Ser¥ices~ 777 Bay street, 2nd Floor "RE: The Reclassification of the Elevator Services Department for the following personnel:- Dennis. Keil Harry Benning Norm Leitch ~"A joint meeting of. the Elevator Contract Co-ordinators of the Ministry o~Government Services a~ the E~ev~tor Inspectors of the Ministry of Housing took place Tuesday evening, November 3, 1987. 'lAS a result 'of this meeting it is our opinion that we are improperly classified as 'Elevator.Inspector I' We feel tha-t the 'S~rvice Supervisor 2' class .standard, for example, more accurately reflects the degree of responsibility and duties performed by our Department. "We are eager to review this situation with you as soon as possible. " 'Dennis Keil°, C.E.T. Elevator Inspector on behalf of: Harry Benning Norm Leitch "c.c.: Al Hutchison, C.E.T. Elevator Contract Co-ordinator Ministry of Government Services 880 Bay Street, Penthouse, Toronto, Ontario" I find that this letter represents notice to the employer that the grievors then sought the reclassification which forms the subject matter Of the grievances. Certainly, Mr. Munro had. no difficulty in viewing the letter as a 3 request for reclassification, w~th an .indication that a better fit would be with the Service Supervisor II classification, as is evidenced by his memorandum to Mr. E. Sanderson, then Acting Manager, Engineering Services, dated November 10, 1987 (Exhibit 7): '~November 10, 1987 "Memorandum to: Mr. E. Sanderson Acting Manager Engineering Services "Re: Elevator Services Inspectors Job Reclassification "Please find attached a copy of correspondence from Mr. Dennis Keit, which is sel'f-explanatory. Mr. A. Priestman, Manager, Elevating Devices Section, Ministry of Government Services, has received a similiar letter from his inspectors. "I support Mr. Keil's com3nents that the current job specification does not reflect the present duties performed by the elevator inspectors. "In regard'to the specific request to reclassify to the Service Supervisor 2 standard, I.am not in a position to comment at this time. "It should be noted that correspondence is on file between Stonehouse and Mr. A. Cote, Director, Property Management, regardin~ an agreement to participate jointly in a review of the elevator inspectors" classification. "Please advise on the next 'steps to be taken on this reclassification initiative. " 'William J. Munro' Chief, Elevator Services Technical Support Services Branch" Mr. Kei! testified that the classification of the postion of Elevator Inspector I, in which the gri~vors had been placed, was based on a job description which did not match their actual 4 duties and responsibilities but was based on a job description originally created for inspectors employed by the ElevatSng Devices Branch, Ministry of Consumer and Commercial Relations. It was submitted, that the position described in the Elevator Inspector Class standard is one which deals with persons whose function involves the' enforcement of a number of statutes and regulations which relate to elevator safety. Mr. Keil teStifed as to a number of other significant duties and responsibilities which he stated had been added to his position over the yegrs and relied on'these to establish a better fit with the classification being sought. These additional duties and responsibilities were said to be reflected in the most recent position specification (Exhibit 4). In particular, reference was made to the following duties and responsibilities: "1. Inspection of contractor's work in the maintenance, repair, renovation, modification and installation of ~levators in OHC buildings. Ensuri'ng the contractor's compliance with the specifications for the work performed. "3. ,Review of the contractor's invoices. "4. Provision of information to the CCR Elevating Devices Branch in addition to, or instead of, information as supplied by their own inspectors, "5. Prov~ding information to the Chief, Elevator Services, necessary in the development of budgets for modernization and upgrading work to meet the new demands from the Housi, ng Authorities for five year plans, and the inclusion of required modernization work with the maintenance tenders. "6. Provision of estimates and negotiating final pricing with the cbntractor fo~ service work, when requested by the Housing Authority." Support for the grievors' position was said to be found in 'Exhibits 8 and 9. Exhibit 8 is a memorandum to Mr. E. Sanderson, Manager, Engineering Services, Technical Support Services Branch of the Ministry of Housing from the grievors' supervisor, William J. Munro, which is appended to this Award as Appendix "A" and which sets out the duties relied upon by the grievors as placing them within the Services SuPervisor II classification. Exhibit 9 essentially repeats the same position, and is from Mr. Munro to Mr. D. Gordon, Director, HUman Resources Branch, Ministry of Housing and is dated the 24th of October, 1988. Exhibit 9 is appended to this Award as Appendix "B". Examples cited by Mr. Keil, in support of the grievors' position. related to his allegation that the Elevator Inspection ! classification was one where 100~ of the dutieD were code and safety related. He referred to the fact that the class standard for the Elevator~ Inspector. I position covered elevator inspectors employed by. the Ministry of Consumer and Commercial Relatio~s, where the duties and responsibilities were .said to be limited to inspections to see that there were no code or safety violations. The grievors were said, from the outset, to have had many different duties and responsibilities. In' particular, he referre~ to their responsibility to see that certain contracts put out to tender, throughout the province under the aegis of the Ministry of Housing, being elevator maintenance.contracts, were inspected by the grievors for deficiencies. Reference was made to Exhibit No. 5: "Instructions to Bidders Elevator Maintenance Index",~ Exhibit No. 5 is given to prospect'ire bidders for Ministry of Housing/Ontario Housing Corporation maintenance contracts. Specific reference was made to the document called "Elevator Maintenance Index of Schedule of Services", being part of Exhibit No~ 5, and particularly the section entitled "Owner's Inspection Reports" being paragraph t.5 at page'3 of the "Index of Schedule of Services". Paragraph 1.5.1 provides that: " the Contractor will receive inspection reports periodically f.ro~ the Owner." Reference was also made to paragraph 1.5.2.~ which states: "If all deficiencies are completed the report shall be signed, dated and returned to the Owner." Mr. Kelt testified that the grievors were responsible for preparing these i~spection reports for the contractor. They were said to perform, these inspections over a period of time, with. one-third of the inspections 'being conducted in the various.regions within the province and one-third within Metropolitan Toronto. One copy of the inspection report would be given to the contractor, one was kept for the file, one was kept by'the inspector in Metropolitan Toronto, and One copy was sent to the District Maintenance Manager. On discovery of any deficiency in the carrying out of the contract, the ~rievors would communicate with the contractor. 7 In the case of a matter requiring urgent' attention, the contractor would be notified immediately and, if necessary, the elevator would be shut down. The deficiency notice would later be delivered to the contractor in the form of a written report. In the case of a matter that was considered to be not too serious, the contractor would be notified of the deficiency in the report and would be given a period of time to complete the remdial work provided for in the report. Mr. Keil also'testified as to the grievors'responsibility with respect to the item.entitled "Joint Survey", being paragraph 1.8 of the document referred to, attached to Exhibit No. 5. Paragraph -1~8.1, provides for. a j'oi~t survey of all installations to be · conducted twice a. month during the contract, the survey being carried out by a representative of the contractor in a supervisory or managerial position along with a representative of the owner. The representative of the owner, in such case, would be one of the grievors. Th~ survey was a general maintenance inspection, during which the grievors would bring to the attention of the contractors' representatives items of departure from the contract requirements not previously communicated to the contractor, along With outstanding items that had not yet been remedied by the contractor. If one of the grievors determined, on the joint survey being taken, that the maintenance contract had not been properly observed, he could prepare a written schedule during which time the deficiencies must be corrected. When the work on the schedule was completed, the Grievors could request an additional joint survey. As~a r'esult 'of the periodic inspection reports prepared by the grievors, a contractor could be removed from the list of those permitted to bid on future contracts. The input of the grievors would be considered by those having the responsibility for determining who may be a bidding contractor. The nature and purpose of the joint survey is set out in paragraph 1.8.2 of the document, above, referred to, which provides that: "the survey will be to establish the standard of preventive maintenance being performed and to determine what, if any, corrective actions are required." Mr. KeiI also referred to paragraph 5.3.1, at page i2 of the above-mentioned document, which Provides that: /'he Contractor shall, in the case of major repairs~ advise and discuss with the Owner the merits of continuing in overtime and complete the repair and shall proceed with such overtime work when authorized by ~the Owner. When possible, the time required to complete the repairs shall be indicated. Mr. Kei'l testified that either the grie~ors or Mr. Munro could authorize the overtime work dealt with in the las{ mentioned paragraph.~ Mr. Kei! testified that the maintenance contract was 9 for a period of thirty-Six months. ! am satisfied t~at Mr. Munro' had the final say in these matters, althouqh he would almost always 'follow the grievors' recommendations. In addition to day to day maintenance service calls, the contracts also deal with repairs as a result of vandalism, which work is paid for on an hourly basis. Where vandalism occurrs, it is investigated by an Inquiry Board from Metro Housing or from the District Office or by the supervisor on the site. One of the grievors is dispatched to the site to.perform an inspection. Mr. Keil also described the situation where one of the grievers would be dispatched to a job to perform an ·inspection. There, they might find that a landing door had been kicked off or that a door operator had been broken. The grievors would assess whether a repair could be effected or whether replacement was necessary. They would then .communicate with the contractor and set up the repair of the job. The contractor would furnish a price quotation and the grievors would do the necessary investigation to determine whether it fell within the industry standard and would authorize the amount to the proper authority. Should the 9rievors find that the price quoted was excessive, they could negotiate with the contractor for a price that was acceptable. Mr. Keil testified that a representative body of costs could include such items as: a door at between $ 2,000.00 and $3,000.00: and a door 'operatqr at between $ 6,000.00 and $10,000.00, depending on the make and style. Mr. Kei[ noted that 10 the grievors would have input into the decision~making process where damage through vandalism had occurred and that they would inspect the work from time to time to see that the necessary standards were being maintained. Written reports were frequently prepared. Before the job could be paid for, there had to be a final inspection by one of the grievors and the result conveyed to those in authority. Mr. KeiI also referred to paragraph 6, under the heading of "Invoicing", found at page 13 of the above-mentioned document. He testified that if any question arose with respect to regular or special invoices submitted by the contractor, they were referred to the grievors for'their input. Mr. Keil also referred to item 3.2 of Exhibit -4, being the current Position Specification and Class Allocation Form with respect to the grievors. Exhibit 4 is appended to this Award as Appendix "C" This item deals with the process whereby a decibion is made to replace or repair elevafors. He testified that the grievors had a fundamental role in the decision-making process. The grievors would have to consider the state of obsolescence or excessive breakdown and furnish input to local or .regional housing authorities. The job of the grievors is to assess whether modernizaton or replacement of the equipment was required. In doing so, the grievors would have to assess whether replacement or upgrading was more feasible in the light of budgetary constraints of the Region, District or the ~etro Toronto authority. Mr. Keil stated that in the case of local or regional housing authorities, there was no other way to assess the condition of elevators except through .the use of the expertise of the grievors. Such significant information as the provision o~ a budgetary figure for the replacement .of the elevator would be obtained from the grievors. Mr. Keil testified that the cost of replacing an elevator would be.about'$ 150,000.00 to $ 160,000.00 in dealing with the subject, of modernization, he stated that the Chief of Elevator Services or one of the grievors would note, over time, that a very large number of calls were received with respect to a particular project. One of the grievors would be dispatched to perform an inspection of the equipment in order to assess whether replacement was' necessary. The information would then be passed on to the Chief, Elevator Services. Communication would also be' maintained with the Region or District and information furnished as to available options.. Mr. Keil stated that the grievors' suggestions were usually followed unless they could not be implemented because of a tack of available funding. Mr. Keil testified that he has performed his present duties and responsibilities since November of 1979. 12 It was acknowledged that Mr. Munro is in'a management position and is not part of the bargaining unit. It was also 'acknowledged that Mr. Munro had been classified as an Elevator Inspector I prior to being promoted to Chief, Elevator Services. It was also acknowledged that Mr. Munro had the position of Chief, Elevator Services for approximately four years prior to the grievance being filed and that Elevator Services operates in the nature of a small department with a Chief and three Inspectors (the Grievors). In crossdexamination, Mr. Keil further differentiated the work of an Elevator Inspector I with the Ministry of Housing from the work of ~those with the Ministry of Consumer and Commercial Relations, by observing that the Elevator Inspectors I for the Ministry of Consumer and Commercial Relations would perform safety inspections approximately every two years, which were not performed by the Grievors, and he stated that if the Grievors also did such inspections, then this would be a duplication of the work. He also differentiated, the work of the two groups by stating that the grievors were concerned with the entire system from the interior of the cab to the electrical aspects of the elevator. The MCCR Inspectors were concerned with the Safety aspects, of cables, emergency stopping devices and braking. Mr. Keil testifed that the MCCR Inspectors were not concerned with the monitoring of maintenance contracts but with the aspect of compliance with 'the safety measures contained in the Code, and 13 in other related statutes and regulations. M.r. Keil differentiated the work of the MCCR Inspectors further by stating that they had nothing to do with the tendering out Of elevator maintenance contracts, whereas the grievors did, as above recorded. In cross-examination, Mr. Kei! clarified the to'lo of the grievors further by stating that they were not always called ~n in the case of a breakdown of equipment. He said that they were always called in when the breakdown was a result of vandalism but that the local authority would cai1 the contractor directly without going through the grievors, in the case of other breakdowns. This did not detract from the on-going role of the grievors ~n inspecting the work carried out' by the. contractors once a maintenance contract had been awarded. Mr. Keii acknowledged' that the grievors could not directly authorize work or payment, but he emphasized that 'their advisory rote was vital because local authorities did not haue the expertise to arrive at decisions without relying on the input of ~he grievors. Lise Horin, who is a Human Resources Advisor in the Ministry of Housing,' testified on behalf of the employer. She stated that she became involved with the subject of the grievors' classifications when she was advised by her Director that the 14 position specification had been rewritten t© show a shift 'in responsibility in the functions carried out bY the grievors. She was requested to carry out a standard evaluation procedure to ascertain the correct classification for the grievors based on the duties and responsibili.ties carried out by them. Once' she established-that the grievors fell within the Elevator Inspector series of the Maintenance Services category within the MS-02C Trades and Crafts,Group, she set about to ascertain which level they fei1 within. She stated that she found two different codes that might be applicable, being. the Elevator Inspector' ! and Elevator Inspector II Codes. If another ministry had the same type of position, she would check to see. if the position within · the other ministry was classified differently than the position of the grievors. She stated that the primary 'goal of the government was to assure consistency of classifications within positions. She then examined the duties and responsibilities of the grievors as set out .in Exhibits 11 and 4 to see the extent of the change in duties and responsibilities, that had occurred between the preparation of the two documents. She then discussed the duties and responsibilities of the grievors with Mr. Munro and the person to whom he reported: the Manager of Engineerng Services. She concluded that the duties and responsibilit.~es contained in the two position specifications were similair. She then used Exhibit 4 and compared the duties and 15 responsibilities therein contained to those set out in the Elevator Inspector I and II classification specifications. As a result, she stated that she arrived at the conclusion that the best fit was with the Elevator Inspector I classification. While it was not a "carbon copy" of the position specification, it was th~ best fit available. She saw no reason to go outside the standard. Ms. Morin did not take issue with the evidence given by Mr. Keil as. to what the duties and responsibilities of the grievors actually were. Also, from her evidence, it was apparent that she did not attempt to see whether the grievors' duties' and responsibilties respresented a better fit with the Services Supervisor II classification. While the grievors are not in the Department of Labour Elevator Inspection Branch, they are involved in an elevator inspection function.. They "perform' r%sp0nsible technical inspectional --' work...". One of the main submissions made on behalf of the grievors was that their duties and responsibilities, unlike the elevator inspectors with the Ministry of Consumer and Commercial Relations, were not involved in inspection for the Purpose of ensuring compliance with statues and regulations, but with the sufficiency of the carrying out of maintenance contracts by contractors. I had some difficulty with this evidence as the plans and specifications, with respect to the maintenance contracts, must be drawn up so as to require compliance with the statutes and regulations relat~ing to elevators and lifts. ?hey were carrying out their responsibilities in "assigned district[s]" and' they carried out regular inspections of a variety of "elevating devices" In carrying~out their inspection of contractor's maintenance contracts, they would have to assess the sufficiency of the work in relation to some standard. This would have to result in the "enforce[ing of] regulations relating to safe operations, Proper maintenance and licensing."(my emphasis). They also were responsible for checking ~"the operation of mechanical and electrical systems." In checking on the performance of a contractorls maintenance contract, they would have to "conduct safety tests to ensure conformity with C.S.A. Code requirements." Other inspectors, such as those in the Ministry of Consumer and Commercial Relations, might conduct safety tests for a different purpose. The grievors, in monitoring and assessing "the performance of contractors installing, altering and/or maintaining e!avators in e×isting buildings" and in "conducting inspections on a periodic basis or when installations/alterations were completed, in order to provide technical support to LHA Regions and Non-Profit check the operation of mechanical and electrical systems. The grievors "discuss unsafe conditions and violations with owners or management representatives and issue directions for necessary alterations and repairs." They make follow up inspections-to ensure directions have been carried out. "They order unsafe 17 equipment out of use until corrections have been made and approved .... And [t]hese employees make special inspections of new and altered equipment to ensure that it is properly installed and adjusted according to approved plans and specifications." Mr. Keil referred to the responsibility of the grievers in the case of vandalism, which would fall under the provisions in the class definition for Elevator Inspector I: "Inspectors also carry out special investigations of ... complaints of unsafe conditions as assigned. They interview witnesses, owner's, operators, contractors and others to secure all available information. They prepare reports of investigations." In this case, for Mr.-Orr. In a general sense, the grievers are employees "who are responsible for ensuring the technical implementation and ' --. execution of projects concerned with the i-nstatlation, maintenance and improvement of either electrical or"mechanical systems and equipment · in~ Government-owned buildings in an assigned region .... " Under the Services Supervisor II class standard, employees in that class operate either as "regional co-ordinators of m~nor maintenance and improvement pro3ects.., or as regional inspectors of major projects." Some of these terms are explained in paragraph 3 of the class standard: '~aS regional co-ordinators 18 they provide technical assistance to district electrical or. mechanical supervisors and staff. They personally prepare instructions, estimates and contract documents on ~the larger, more-complex projects,f' There was no evidence given which would. indicate that the grievors, assuming they' were regional co- ordinators, provided techn'ical advice to district electrical or mechanical supervisors and staff. In most districts~ there was no such staff and I heard no evidence that they furnished such advice to any persons who would fall under the category of electrical or mechanical supervisors and staff ~or, was there evidence to demonstrate that they: "personally prepare instructions, estimates and contract documents on the larger, more complex projects." There was some evidence that they were involved' in the'process~ but it could not be said that ~hey had a broad supervisory responsibility so as to fail under the language of "personally prepared". _ One of the difficulties that we were faced with was that the evidence concerning what is a major 'or minor capital project and what is a large complex contract was sketchy. There was 'no indication that any serious attempt had been made t.o obtain information.which would better define these terms, l'he evidence was that. a telephone call had been made by Ms. Morin to a representative of the Ministry of Government Services (unnamed) who was said to have advised that major'capital projects involved+ more than a million dollars, While it appears that the grievors may have 19 been involved in projects where more than a mi'ilion dollars was involved, this would not appear to have applied to individual maintenance contracts, which subject took up so much of the evidence on their behalf, and which was the primary focus of their claim. Mr. Keil's evidence was that the reason why the gri'evors best fit under the Service Supervisor II class standard was because of the work they did in relation to maintenance contracts. From the evidence presented, it would appear' that such contracts would usually not qualify as "major". In the class standard for the Service Supervisor ii classification, there is a provision ~hat, "when necessary, they conduct inspections of large complex contracts and carry out investigations of the more difficult problems, providing advice and guidance to'distric~ staff." The evidence did not disclose that the grievors were ~so involved. --. . ..... 'I also had a problem with the submissions made on behalf of the grievors, in that they do not comfortably fit into the designation of "regional co-ordinators" as defined in the Service Supervisor II ciass standard, nor are theM "regional inspectors of major capital projects" .as defined in the latter class standard. I can not view them as being co-ordinators as described in the latter class standard. They were primarily inspectors. In the fourth paragraph of that class standard, regional inspectors are "responsible for ensurinG that electrical 20 and mechanical systems and equipment for major capital projects are installed in accordance with designs and specifications" Emphasis was placed on the responsibilities of the grievors with respect to the inspection of maintenance contracts. The emphasis within the Services Supervisor II class standard, when it refers to "regional inspectors" is on the inspection of "major capital projects, involving electrical or mechanical systems and equipment" That is, the inspectors are to see' that· these items are "installed in accordance with design specifications" The evidence said to support the grievors' position relates to other forms of inspection involv.ing maintenance co'ntracts, which do not 9Dpear to fail w~thin the "major'capitaI project" definition. In any event, there is a. difference between the inspection of maintenance contracts, where the equipment is already installed but is, for the most part, 'being maintained and the kind of inspection referred to when reference is-made to "regional inspectors" in the Services Supervisor II class standard. The grievors were not responsible for "the implementation, operation, updating and coordination of the Preventative Maintenance Program covering' electrical or mechanical equipment in government buildings .... " While they did have an involvement in: "arranging contract maintenance where required," they can not be said to have had a primary responsibility in this area but 21 were mainly resource persons passing on information which was then used by those who had the responsiblity for arranging such contracts. While the information that they furnished was of assistance in · the preparation of budgets, the evidence did not disclose that the grievors worked, "closely with district electrical or mechanical supervisors in the preparation of annual budget estimates." .In fact, there was no evidence that they were actually dealing with district electric or mechanical supervisors. The class standard for'the Services Supervisor II position is so drafted as to place employees in that classification on a level were {hey are providing fairly detailed technical advice to persons who have electrical or-. mechanical expertise. The evidence from Mr. KeiI indicated that there were no such persons in the districts te whom the grievors furnished advice relating to elevator inspections, refurbishing, maintaining and replacing. .The persons that they dealt with were not identified as havinq any expertise in el'ectrical or mechanical matters. The inspection function of the grievors does not fit well into the description 'of 'that function contained i~ the Services Supervisor II classification. As inspectors, ! could not find that the grievors could be treated as regional inspectors of 22 major caDitaI projects, as that designation is placed in opposition to regional co-ordination of "minor capital, maintenance and improvement projects .... " While ~he ~rievors might be said to have an involvement in "ensuring that electrical or mechanical systems, and equipment for ma3or capital pro3ects are installed in accordance with design and specifications", 'when this.term is read ~n~context with~the rest of the class standard for Services Supervisor II,' it can be seen that the level of yesponsibility, there defined, iS higher than that carried out by the grievors. They do provide a valuable input to their supervisor, ,but it' is he' who is responsible for ultimately ensuring that the installations are in accordance with the designs and specifications. The language of the Services SuPerVisor II class standard, which provides that incumbents "inspect work in progress, reporting on any deficiencies, interference, site problems and other conditions. They instruct contractors on Government procedures and cooperate with them 'in resolving these problems," must be read along w~th the rest of the language of the class standard, and this indicates that such inspection and instruction is done in the context of an incumbent being a regional inspector or a regional coordinator within the meaning of the class standard. In the absence o~ a class standard as is set out in the.Elevator Inspector I .class standard, the arguments made on behalf of the grievors might have greater cogency. 23 it is also important to note that the Elevator Inspector % class standard provides that "they 'perform their duties under the qeneral supervision of the Assistant Chief Inspector". Here, the grievors reported to the Chief of Elevator'Serv~ces, Mr. William J. Munro, at - alt material times. Such a reference is more appropriate to employees who are classified as · Elevator Inspectors I than to serVice Supervisors 'II, when both class standards.are reviewed. Exhibit 4 indicates that the grievors have some responsibilty in relation to labour and material costs. In the Services Supervisor II class specification, such responsibility is related to ensurin~ "the validity of progress billings and change orders" The- evidence disclosed that the grievors did provide input as to the cDst of the contract, but only in ' evaluating the contractor's bid This did not amount to estimatin~ the value of.labour and material costs for the purposes set out in the standard for the Services Supervisor II class standard. Reading the Services Supervisor II class standard, I am satisfied that it encompasses a classification requiring a higher level of inspection and coordination than that which was the responsibility of the grievors. The grievors, for all of their expertise, are inspectors and not regional co-ordinators of either maintenance projects or improvement projects. They 24 inspect and are resource persons, but they can not be.viewed, in any meaningful sense, as regional co-ordinators. They furnish ad~ice and information to others ~ho are responsible for co- ordination. The thrust of the regional co-ordinators' duties is shown to be directed 'at installation and not maintenance contracts. While it can not be said that the grievors fit perfectly into either classification, we must conclude that their best fit is with the Elevator Inspector I classification. There is no question that the grievors performed their responsibilities very well and were highly thought of by their supervisor. The grievors emphasized the fact that theirs was not a position as described ~in the Elevator Inspector I class definition because that classification was said to be e~clusively concerned with inspections for violation of statutes and regulations. In fact, the standard includes inspections to ensure that 'equipment has been "installed and adjusted according to approved plans and spec/f/cations." Where it is possible to see elements of the gr~evors' duties and responsiblities within two.class standards, as is the case here, it is often a difficult choice to make a decision as to where a best fit is to be found. Having considered all of the evidence and the submissions made on behalf of the grievors and the employer, we must conclude tha't the grievors have not satisfied the onus placed on them to 25 establish that the best fit for the duties and responsibilities that they perform would be within the Services Superv~so~ II classification and', accordingly, the grievances must fail. DATED at Toronto, Ontario this .6th day of jir/~.-..~ ]990. M. Gorsky, Vice-Chairperson "I Dissent" ('Dissent attached) J. McManus, Member E. Orsini, Member ADDENDUM TO AWARD OPSEU (Benning et al) 26/89 At page 2 of the Award, there is set out Exhibit 6, being a Memorandum sent to Mr. Munro on behalf of the grievors by Mr. Keil. In that Memorandum, Mr. Keil noted that a meeting had been held on November 3, 1987 involving the grievors and certain employees also classified' as Elevator Inspectors I, who were employed by the Ministry of Government Services, with the position title of Elevator Contract Co-ordinator. The latter employees also grieved their classification as Elevator Inspectors I and, similarly, stated that they had been improperly classified and claimed classification as Services Supervisor II's. Their grievance was heard on April 14, 1989 and the Award was issued on November 1, 1989: O.P.S.E.U..(Campbell) and The Crown in Right of Ontario (Ministry of Government Services) 1257/88, Samuels. We have since. received a letter from Mr. Wells, counsel for the Union, who submitted that: "A comparison of the position specification for the Elevator Contract Co-ordinator found at Appendix of'the Campbell decision w'ill show that the job is effectively the same as the Technical Co-ordinator-position oCcupied by the grievors before you. (Their position specification is Exhibit 4). In 'arriving at your decision in the-Benning case, it is my belief that the Campbell case would be of some assistance and of some influence in light of the Blake decision (GSB File: 1276/87. et al), a copy of which is also enclosed." Mr. Wells' letter was. received after the Vice-Chairperson had submitted his draft award for distribution to the members, but before it. was actually sent to them. At Mr. Wells' request we reconvened the hearing to hear Mr. Wells representations with respect to the Campbell case. Ms. Rusak objected to our doing so and we noted her representations in support of her position. Because of the Chairperson's ruling in the Blake case, referred to below, it is important that we have cases brought to our attentions before the Award is issued in order to avoid the evil addressed by the Chairperson. There was no sufficient reason demonstrated in this case for declining .to address the issues raised in CamDbelt and we did so after receiving full argument from counsel. Fundamental to the success of the grievors is a finding that. they' are either Regional Co-ordinators or Regional Inspectors as defined in the Services Supervisor Class Standard. In the Campbell case, the grievors were found to "act as Regional Co-ordinators" in the sense discussed in the third paragraph of the Class Standard. In particular, they were found to: "... provide technical advice to district~ electrical or mechanical supervisors and staff. They personally prepare instructions, estimates...on the larger, more complex contracts and carry out.investigations of the more difficult problems, providing advice and guidance to district staff. They are responsible for the implementation, operation, updating and coordination of the preventative maintenance program covering...(eievators)" The duties and responsibilities relied upon by the griev0rs related to their inspection of maintenance contracts, being the principal factor in bringing them into the Services Supervisor II classification. For the reasons stated in the Award, I did not find the grievors. to be "Regional Co-ordinators" and their work did not encompass the work highlighted by the Board in the Campbell case as bringing the grievors, in that case, under the latter classification. Similarly, I could not find that the grievors, in this case, acted as "Regional Inspectors" in the sense discussed in the fourth paragraph of the Class Standard, as were the grievors in the Campbell case. As noted, the emphasis placed by the grievors was on the evidence of their work in relation to the maintenance contracts. In the Campbell case, the Board was moved by the fact that: "the grievors are the province's technical experts who advise the property. managers concerning'the installation, alteration and maintenance of these lifting devices. They all have extensive experience as Elevator Mechanics...". In the case before us, the grievors did not advise property managers with respect to the installation or alteration of elevators and we heard no evidence as to their having had extensive experience as Elevator Mechanics. Another difference between the Campbell case and this case is that the Board found that the grievors, carried out their responsibilities in the case of' "small projects and large projects". Although the terms small and large were not defined in the Campbell Award, on the evidence we had before us, I could not find that the grievors would fall under the classification of "Regional Inspectors of major, capital projects". Unlike the Campbell case, where the grievors were responsible for "large projects" and where they initiated such projects and inspected the work performed.in such projects, the grievors, here, did not initiate projects. We are concerned with more than the position.specification, we must be concerned with what the grievors actually did, and this, often, is only learned when we hear theviva voce evidence. I am mindful of the admonition ~f the Chairperson in the case of E. Blake et al and Amalgamated Transit Union and the Crown in Riqht of Ontario (Toronto Area Transit ODeratin~ Authorit¥~, 1276/87 that: "The Act does not give one panel [of the Grievance Settlement Board] the 'right to overrule another panel.'..". However, in this case, the actual duties and responsibilities of the grievors are sufficiently different from those of the grievors in the Campbell case so that the decision in this~ case does not attempt to overrule the latter case. DATED at Toronto, Ontario, this 6th day of July 1990. M.R. Gor~ky, Vice-Chairperson "I~ Dissent" (Dissent attached) J. McManus, Member E. Orsini, Member DISSENT Benning, et al. GSB File 26/89 I have read ~he award written .by 'the Vice-Chairman in =his case and his addendum. I am unable to agree with the result. The evidence in this case persuaded me that the grievors should be properly classified as Services Supervisors 2. More importantly, it is my view that for this panel of the Grievance Settlement Board to come up with a decision different from %he Campbell panel (GSB 1257/88) would be a disservice to the parties.. This decision will simply increase the volume-of cases being heard by this Board. I will comment briefly on the class standards argument and on the effect of the Campbell decision. The class standard for Elevator Inspector I covers positions of those who inspect elevators to ensure 'compliance with certain Acts. Those Acts are named in the class standard. The Services Supervisor 2 class standard includes positions more generally responsible for ensuring the technical implementation and executions of projects concerning the ins=ailation and maintenance of electrical or mechanical systems (of which an elevator is one). It was clear from the evidence of Mr. Keil and from the position specification that the grievors do not just concern themselves with compliance with legislation. In fact, if you review the position specification (exhibit 4) there is little reference to compliance with legislation at all. I was satisfied that the grievors fit the description of Regional Coordinators under the Services Supervisor 2 class standard. I accept the Vice-Chairman's reservations =hat the grievors did not fit perfectly into either the Zlevator Inspector. i or the Services Supervisor 2 standard, but I would have found the best fit to be the latter. Let me turn to the effect of the Campbell decision. We were aware that the Elevator Contract Coordinators for the Ministry of Government Services had.filed grievances at about the same time as the grievors from the Ministry of Housing (see exhibit 6). I noted, as did the Vice-Chairman at page-14 of his award, that Ms. Morin testified on behalf of the Ministry that a primary goal of the government was to assure consistency of classifications within similar positions in the government. It is my View that the positions in the C~mbell case are effectively the same as the positions before us. (I will elaborate on the way in which I reached that conclusion shortly.) Accepting that that is the case,. I repeat that neither the parties nor labour relations nor the Board are well served by this inconsistent result. I note the following: 1. The result is that similar positions will be classified differently. 2.. The Ministry's stated desire for consistency in classification will not be achieved. 3. This decision simply encourages the filing of more · grievances. These grievors will clearly file new classification grievances a~d advance a usage argument, not relying on the class standard, but simply alleging that they should be classified the same as the individuals at the Ministry of Government Services. Why do I say that these positions are essentially the same? i note that the brief summary of'the evidence in Campbell compares favourably to the evidence in this case. More importantly, we have the position specification. The vice-chairman, writes, at page 4 of the addendum to his award: We are concerned with more than the position specification, we must be concerned with what the grievors actually Bid, and this, often, is only learned when we hear the ~ voc~ evidence. But, in the case before us, Mr. Keil testified that the position specification accurately reflected what he did. The Ministry took no issue with that. In Camube]l~ the Board attached the specification to the award (presumably because it was reasonably accurate). The evidence before the Campbell Board would not have been the same as the evidence before this Board. The grievor testifying and counsel will inevitably highlight different aspects of the job in presenting the evidence. Nonetheless, the fact remains that the position specifications are accurate and outline the duties of the position. What is a position specification? It is a document created by the Ministry which, in part, describes the duties of a position. While issue is sometimes taken with the content 'of the position specification, my. experience in hearing classification cases at this Board is that, in a surprising.number of cases, the parties in the end agree that the position specification is largely accurate and the issue is how to classify 'the position so described. M~. Wells, at our meeting on March 20,~ 1990, invited the Board to compare the Campbell specification with the one before us. I have done so and i find the wording to be largely identical. For example, in the CamPbell case the major duty of the Elevator Contract Coordinator (60%) is: Monitors and assesses .performance of contractors installing, altering and maintaining elevating devices in existing government buildings and conducts inspection program within an assigned area by... In the case before us t_he functions of the Technical Coordinator are stated as follows: 3.1 Monitors and assesses the performance of contractors maintaining elevators in existing Ontario Housing corporation buildings ~hroughout the Province. by... Added to %his must be the third duty which reads: 3.3 Monitors and assesses tMe performance of contractors, installing, alt~ring/modernizing elevators by.J. As noted above, my examination of.these position specifications persuades me that these positions are largely identical. As a result, we now have two positions, described in a largely identical fashion, classified differently. As I noted.above, %he grievors in this case inevitably will file new grievances and seek, on the usage argument, to be classified the same as the employees at the Ministry of Government Services. That case will succeed unless the Grievance Settlement Board permits the parties to re-argue the Campbell case and attempt to .prove that the Campbell decision is wrong. In reviewing the Blake decision (GSB 1276/87) I read again the words of the Chairman at page 8: Also, given the volume of cases' that .currently are administered by this Board, the. continuous attempts to persuade one panel that another panel was in error only encourages a multiplicity of proceedings and arbitrator shopping which in' turn creates undue administrative difficulties in handling the case load. Accepting that these grievors do not fit perfectly in either Services Supervisor 2 or Elevator Inspector 1, and in light of~ - 4 - the Grievance Settlement Board conclusion in the Camp~el'l case, we are surely compelled, for the reasons I have suggested', to conclude that these grievors, performing essentially the same functions as those grievors in the Campbell case, should be classified as Services Supervisor standard in the same fashion as the grievors in gamDbe.ll. Jon McManus ,~., of du ;, 'Housing Logemen~ ' ':''> ' Ontario May 30, 1988 Memorandum to: Mr. E. Sanderson Manager, gnginepring Services Technical Support Services Branch Re: Elevator Services Inspectors Posit%on Reclassification - Further to my November 10, 1987 memorandum to you regard£ng a written request from Mr. D. Keil on the subject of reclassification of the position of the Elevator ServiCes inspectors, copies of both' memoranda are attached. The classification of the position currently held by our inspection personnel~ Elevator Inspector I, is based on the job description written for the inspectors employed by the Elevating Devices Branch, Ministry of Consumer and Commercial Relations. The basic description lists the requirements for inspectors who enforce the Elevating Devices Ac= and Elevator Safety Code. '~d~itional duties , have been added to this basic description in an attempt to -cover .the aspects of the work performed by the-O.H.C. inspe~ors. A copy of this description is attached. The attached updated position description more accurately details the.work being performed by the ~levator Services inspectors at this time. Valle similar knowledge of the Act and Safety Code as noted· under Elevator Inspector I is required, the updated position description acknowledges the increased emphasis on: 1. Inspection of contractor's work in the maintenance, repair, renovation, modification and installation of elevators in OHC buildings. 2.Ensuring the contractor's compliance with the specifications for the work performed. 3. Review of contractor's invoices. RECEIVED ENGINEERING SERV/CES 4. Provision of..information to the CCR Elevating Devices Branch in addition to, or instead of, informat~on as supplied by CCR EDB inspectors. 5. Providing information to the Chief, Elevator Services, necessary in the development of budgets for modernization and upgrading work to meet the new.demands from the Housing Authorities for five'year plans, and the inclusion of required modernization work with the maintenance tenders. 6. Provision of estimates and ~egotiating final pricing with the contractor for service wor~, when requested by the HousingAuthority. It is basically these items which places the job done by the Elevator Services inspectors out of'the area of work · described under Elevator Inspector I, and leads credence to the premise that the .E~evator Services inspectors were originally incorrectly classified. Additionally, the following items provide recognition by the elevator industry of the level of competency required by the Elevator Services inspectors. a) The industry acknowledges their technical ability by using the inspection reports generated by these "unpaid supervisors" as a method of determining the standard of maintenance performed by the contractor's Staff, and the general status of the equipment maintained. b) With regard to item ~6 in this memo, the contractors ensure that personnel within their organization who provide the information necessary for the estimation of work to be done on any repair, upgrading or modernization project are at a minimum skill level of supervisor. Therefore, in the context of both a) and b) t-he contractors are effectively recognizing the status of the Elevator Services inspectors at a minimum standard of field supervisor. While the salaries and benefits of elevator contractor supervisors are negotiated and, therefore, confidential, it is generally agreed throughout the industry that salaries begin at the mechanic's rate plus 25%. Currently, the mechanic's rate is $21.27 per hour, with an additional $4.57 per hour benefits,' effective to the contract date of May 1, 1988. Negotiations are currently in progress for the settlement of a two year.contract with the mechanics demand of an 18% increase in each year of the contract and appropriate benefit increases as the main bargaining item. To complete the reclassification procedure, I am in favour of changing the job title to more closely reflect the position description. A title such as Technical Co-ordinator, Elevator Services, seems more appropriate. I am in agreempnt with the inspectors' request for reclassification review. It. should be noted that the Ministry of Government Sprvices Elevator Inspectors are requesting re-classification, and MCCR Elevating Devices Branch are seeking salary increases for their inspectors within their classification. Extreme difficulties are being experienced by E.D.B. in attracting qualified elevator people from the field to fill vacancies om their staff. The salary increases are also viewed as necessary to retain inspectors already on staff. Therefore, would you please arrange presentation of the updated job description to the appropriate Ministry department ,' Wtllt Munro Chief'~/Elevator Services Technical Support Services Branch Attachment wJm.91 APPENDIX "B" Toronto, On~r~ ~mnto (0~ of du ~ciat L~emen~ Housing Logement Housing Ontario October 24, 1988 Memorandum to= Mr. D. Gordon Director, Human Resources Branch Ministry of Housing Re: Elevator Services Inspectors Pos it~oo Reclaes i f ication Please find attached a copy of the. ~pdated job description for the position of Elevator Inspector submitted to me for position reclassification purposes. The submission was originally presented in November, 1987. The classification of the position currently held by the inspection personnel, El.evator Inspector I, is based on the job description written for the inspectors employed by the Elevating Devices Branch, Ministry. of Consumer and Commercial Relations. The basic description lists the requirements for inspectors who enforce the Elevating Devices Ac~ and Elevator Safety Code. Additional duties have been added to this basic description in an attempt to cover the aspects of the work performed by the O.H.C. inspectors. The updated position description more accurately details the wor~ being performed by the Eleva. tor Services inspectors at this time. While knowledge of the Act and Elevator Safety Code and elevator industry experience as noted under Elevator Inspector I is required, the updated position description acknowledges the increased emphasis on: 1. Inspection of contractor's work in the maintenance, repair, renovation, modification and installation of elevators in OHC buildings. 2. Ensuring the con~ractor's compliance with the specifications for the work performed. 3. Review of contractor' s invoices. 4. Provision of information to the CCR Elevating Devices Branch in addition ~o, or instead of, information as supplied by their own inspectors. -. /9. - 2 - 5. Providing information to the Chief, Elevator Services, necessary in the development of budgets for mo~ernization and upgrading work. to meet the new demands from the Housing Authorities for five year plans, and the inclusion of required modernization work with the maintenance tenders. 6. Provision of estimates and negotiating ~inal pricing with the contractor for service work, when requested by the Housing Authority. The submission emphasizes that it is basically these items which places t. he job done by the Elevator Services inspectors out of the area of work described under Elevator Inspector I, and ieads credence to the premise that the Elevator Services inspectors 6riginally may have been.incorrectly classified. To complete the reclassification~proce~ure, 'a change in the Job title to more closely reflect the position description is in order. A title such as Technical co-ordinator, Elevator Services, seems more appropriate. Wlllia~ J. Munro Chief, Elevator Services Technical Support Services Branch Attachment wj~.232  POSITION SPECIt-:,~ I ION ~ND CLASS ALLOCA ! ION FORM ~ ~,;m~ Techn~ca~ Coo~d~na to~ c. Tach. ica ~ · ~ ~S~z~.Serv~8 ~levator .Services 777 Bay Street, ~nd To monico; and assess ~e perfo~nce o~ cost:actors installing, altering ~/o~ ~ln~a~ng elevators in ex~sting buildings. To conduc~ ~spectio~ on a ~ri~c basis or vhen ~nsCal~a~ions/al~era~Lons collated, ~n o:der ~ provide ~echnLual sup~rC ~o L~, Regions and Non-ProfL~ groups. 3.1. ~nitors and assesses perfo~ance o~ contractors ma~tain~n~ elevatoz ~ ~isCing Ontario Housing Cor~raC~on buildings ~roughout ~e Province - reviewing app=oved specifications and O~C E~evator ~nt~nance agre~en~s to ensure compliance by con.actor; - r~ul~ly inspecting and Ces~ng ~or c~pll~ce to ms.ten.ce a9re~ents and applicable ac~G, regulations ~d codes, ~es~ng el~cal systems, conduL~ conOuc=ors. ~r~ng of gove=noc~ ~n~e~locks, level~Lng devLces~ to.of-car, operating devices running ~ren~$ ~d voyages, moro= an~ cir~ overioad pzo~ea~ion, ~oor b~ gro~d~ng, opera~lons of valves, hoisting =opes, buffers, ante-roll ~ck ~ o~her safety devices~ - ~e~g opera.one1 eff~ciency~ reg~d~g no~-c~p~ce ~i~ main~enance agre~ent, necessary repairs, deE~eienc/es, a2c. ~ - ~veselgat~ng repea2 p:ob~emsl responding ~o complaints/queries from Con.actor~ s act~vit~es~ rev~ew~nq con~ac~or~s ~nvO~CeS for con,est, a~ advising L~ regarding pa~n~ ~eviewin9 =e~r~s ~R, ~leva~inq Devices Bc~nch and :eco~en~ng apg~op=ia~e ~c~ion to be ~en by con=rector, and/or ILLS AND ~OWLEDGE REQUIRED TO PERFORM THE ~RK ~TA~I i~e~r,~, lnaiNlNn, IXrCml~l ~ A~LOCAT~O, - . sponstblli~ies ate technical In. nature In ~hat they =equi~e ~ g~d ~king o~edge o~ ~l~eing devices in order eo supervise ~he work o~ cont=acto~s. ey are also inspectional in tha~ they require regular ins~ctiona o~ gls~aC~on. ~nally, ~ncu~en~ d~scusses unsafe conditions and v*o~a~ons wit~ management ~pre$~nta~ives, ~ssues ~nst=ucC]ons ~or a~etat~o~s or · - recommending action to be taken regarding approval and - conducting site survey to determine if existing - propnc.img reports r~cemmendinq degree an~ nature of (0~ alt~r~tion or replacement required; - compiling data and information for production of contract specifications and drawing~ in eonmultation with, and a~ required by, the Chief; analyzing callback data, site information, ~luvator Safety Code requirements or any other information that i~ 3.3 Monitors and assesses peFfOr;ance of co,tractors installing, eltoring/modecnizing elevators by: - conducting interim inspections while the work i$ being performed; 15~ specifications; - ¢onducc{ng acceptance £n=pection .~or - recording results o~ inspections, =eco~ending appropriate follow up in cases of non-compliance with specifications, applicable acts, regulations and codes. 3.4 ~form~ oth~r relate4 - maintaining liaison with R.U.I'.O. and L.ll.A.'' ' - assisting l[ousing Autlloritic~ by providing specifications/purchaSe order wordin~ and cost estimate for minor servicn wor~; - instructing elevator maintenance company an action to }~% bo taken In cases where emergency repairs Accessory, making recommendations regarding work procedure, payment of invoices, and advising Housing AutBorit¥: wltnesnes if necessary; ~xam~ning elevator olectrichl or failure; and'alsrting Chief, Elevato~ Services and l{ou~ing Authority and providing relevant information. - assisting Chief, Elevator Se:vices by i~¥estigating new contractors and making recommendations with regard to . # their capabilities and suit~bility for inclusion 'on the invitational tender list; participating in meetings and seminars re: maintenance and modernization contracts, specifications, regulations governing ~levating devices with/for Housing Autho~ity/~]PO personal; providing assistance to legal department in any lttig;~tion regarding the elevator system. assisting client groups where required; as assigned. 4.1 Skills and Knowledga required to PerfOrm tha Work Comprehensive experience in the installation, alteration and maintenance of elevators; ability to qualify as a mechanic under the Elevatin~ Devices Act (minimum fcu~ years directly related experience as stipulated in the Act); Thorough knowledge of the Elevating Devices Act and Regulations, the C.S.A. B44 Safety Code for' Elevators and the C.S.A. 0355 Safe=y Code ~or Elevating Oevices ~or the Handicapped: abilfty.to read elevator electrical schematic~ a~d mech°n[,:al layout draw~g~; understanding of and ability to interpret maintenanc~ agreements/contracts; ability to set own schedule~ and meet deadlines with minimal supervision.: communication skills to ~repare reports and respond to queries and ~rovide assistance to R.I{.~.O., L.H.A. and Non-Profit personnel; good ~hysica! condition; va~id driVer's licence.