HomeMy WebLinkAbout1989-0960.McSevney.91-01-04 ONTARIO EMPLOYES DE LA COURONNE
CROWN EMPLOYEES DE L *ONTARIO
GRIEVANCE C,OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
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960/89
IN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (McSevney)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of the Solicitor's-General)
Employer
,BEPORE: E. Ratushny Vice-Chairperson
E. Seymour Member
D. Clark Member
FOR THE L. Trachuk
GRIEVOR Counsel
Cornish Roland
Barristers & Solicitors
FOR THE N. Eber
EMPLOYER Counsel
Hicks Morley Hamilton Stewart
Storie
Barristers & Solicitors
HEARING: February 22, 1990
DECISION
The Grievor is classified as a Technician 4 Photographic.
Her job specification as well as the evidence presented before us
establish that she is the "supervisor" of a colour film processing
laboratory. On July 22nd of 1988, her immediate supervisor
recommended that her position specification and class allocation
be reviewed as soon as possible. He added that it was "imperative"
that the supervisory as opposed to the "hands on" aspects of this
position be more accurately described. This recommendation was
supported by the Director of the Technical Support Branch and, Ms.
Betty Chai, a classification officer, was assigned the task of
reviewing this position.
In early August, Ms. Chai attended at the job site and
reviewed the position. Draft revisions of the position
specification were prepared. Eventually, the Grievor received a
revised position specification dated September 22, 1988. Over the
fall and spring, she contacted Ms. Chai on a number of occasions
to inquire into whether any action had been taken in relation to
her classification. Finally, in June of 1989, she was informed
that she would not be included in the management category. A few -
days later she received, for the first time, another position
specification which was dated October 31st, 1988. This version
reduced the scope of the supervisory responsibilities which had
been described in the document dated September 22nd, 1988, and
which she had received in late September.
The Grievor alleges that she performs duties which
transcend the class standard for a Technician 4 and that the
Technical Manager (photographic) series is a much more accurate
description of the duties which she performs. In particular, it
is alleged that the benchmark TPH14-2 indicates that she would be
more appropriately classified as a TM14.
In addition to the technical knowledge, skills and training
required, the class standard describing the Grievor's position
~tates 'that:
...positions may be required to provide group
leadership to journeymen technicians performing
.advanced photographic reproduction work or
assisting with specialized assignments.
However, the elaboration of this general statement relates to such
matters as:
- providing technical direction to journeymen assistants
on complicated procedures;
- providing assistance to junior technicians in resolving
technical production difficulties;
- analyzing work requests and assigning work to the
appropriately skilled technicians and reviewing the quality
of completed work;
- analyzing problems to determine whether they are caused
by materials, equipment, application of techniques or a
combination of these factors;
- modifying work processes to improve work flow where
complex, production-related functions are involved.
The thrust of this standard is to describe the supervision of
individual technicians and the tasks which they perform to ensure
the quality of the work product. It envisions a Technician 4
Photographic as performing the most technically difficult tasks
personally, and offering professional advice, guidance and
supervision with respect to the specific tasks performed by other
technicians who are classified at lower levels.
However, this class standard does not recognize the
Grievor's de facto over-all responsibility for the entire
operation. She assumes responsibility for meeting time and volume
demands as well as for the quality of the work performed by other
technicians. She monitors the production of the entire laboratory
and ensures that equipment is used efficiently. For example, she
has developed forms to monitor the production from specific
equipment and the frequency and duration of equipment break-downs.
She is in regular contact with suppliers in relation to the up-
grading of supplies and the repair and purchase of equipment. In
other words~ she is concerned with the comprehensive and cybernetic
operation of the entire laboratory.
The benchmark TPH14-2 expressly recognizes such over-all
responsibility when it describes the purpose of that position to
be:
To supervise the ministry's photographic unit which
produces black and white reproductions of
photographs, engineering drawings, maps and other
documents relating to transportation and
communications in the province.
The written submissions on behalf of the Grievor compare, in some
detail, the description of this management position with the job
specifications and actual work performed by the Grievor. We need
not document those comparisons here. It suffices to conclude that
the branchmark TPH14-2 far more closely describes the Grievor's
position than does her current class standard of Technician 4
Photographic. Although many of the functions carried out by the
Grievor were subject to the approval of her immediate supervisor,
the reality was that her "recommended" course of action was
inevitably approved in relation to every aspect of the operation
of the laboratory.
The only area in which the management position differs from
that of the Grievor is in relation to the supervision of personnel.
The benchmark position is related to a laboratory which is larger
than that supervised by the Grievor. It requires the supervision
of nine technicians as opposed to four by the Grievor. The
management position also has the responsibility of "taking
disciplinary action" whereas the Grievor's most recent position
specification speaks of "referring unusual matters and disciplinary
matters to Supervisor". The earlier version of this position
specification, dated September 22, 1988, spoke of "resolving
situations of a disciDlinary nature with employee, referring
grievances to Supervisor's attention". We are of the view that
these differences do not affect the essential merit of the
grievance.
The Grievor has satisfied the burden of persuading the
Board that her significant job duties are beyond those assigned to
her present classification. Moreover, they are comparable to the
TM14 Standard. However, the Employer will be given the option of
reclassifying the Grievor under this standard or of creating an
equivalent classification.
The Grievor has requested that her reclassification be
ordered with salary and benefits retroactive to July 22, 1988, the
date when her immediate supervisor first requested that the Grievor
be .reclassified. The Employer took the position that any
retroactivit¥ should be limited to 20 days prior to the filing of
the grievance because the Grievor did not initiate the review of
her classification. It was argued that there was no evidence that
the Grievor pursued the review of her position as an alternative
to filing a grievance and that there was no course of conduct or
representation that would lead the Grievor to believe she would be
reclassified.
In our view, the date of September 22, 1988, is
significant. This is the date of the revised position
specification which recognized many of the wider responsibilities
of the Grievor in relation to the supervision of personnel. From
this point on, the Grievor made inquiries as to the progress of the
revised classification which she desired. When she was finally
informed in June of 1989 that she would not be reclassified, she
received a further revised position specification which narrowed
the scope of the responsibilities described in the September 22nd
document.
The Board orders that the Grievor be reclassified into a
higher classification to reflect her current duties and
responsibilities which are comparable in most respects to the
branchmark TPH4-2 with salary and ~enefits retroactive to September
22, 1988. The Employer shall be given 90 days to reclassify the
Grievor and the Board will retain jurisdiction pending the
implementation of this decision.
DATED at Ottawa this 4th day of January 1991.
E. S~/MOUR, Member
"1 nISS~.NT" (Dish,at attachod)
D. CLARK, Mealk~r
GSB# 960/89
OPSEU (McSevn'ey) and Ministry of Solicitor General
DISSENT
After carefully reviewing all of the evidence and written
submissions concerning this case, I feel I must, with all
due respect, dissent from the decision of the majority of
· this Board.
The Grievor alleges that she is improperly classified as a
Technician 4, Photographic and that her duties more closely
relate to those described in benchmark THP14-2, i.e., a TM
]4 level. I feel the Grievor is properl)- classified at her
present level.
The Grievor agreed with the description of her position as
set out in the Position Specification, Exhibit #6, signed by
her Supervisor on September 22, 1988. The only material
differences to the Grievor between Exhibit #6 and Exhibit #7
(the Position Specification signed by her Supervisor on
October 18, 1988) were in the following areas. Exhibit ~6
refers to:
3. Carries out administrative functions by:
"- monitoring attendance, granting time-off,
approving vacation and overtime;"
"- participating in staff selection process by
revie~ing application, devising interview
questions, assessing technical qualifications,
selecting the most qualified candidate for the
the Selection panel's support, checking references
and making offer of position;"
"- providing critical comments in the performance
appraisal process, in merit increase
recommendations, in appointment to classified staff,
prior to formalization by the Supervising Staff
Sergeant;"
"- resolvin~ situations of a disciplinary nature with
employee, referring grievances to Supervisor's
attention.
- 2 -
Exhibit #? refers to:
3. Carries out administrative functions by:
"- monitoring attendance, recommending time-off,
vacation and overtime;"
"- participating in staff selection process by
reviewing applications, devising interview
questions, assessing technical qualifications, and
recommending selection;"
"- providing input in the performance appraisal
process, in merit increase recommendations, for
consideration by the Supervising Staff Sergeant;"
"- resolving performance problems with employee,
referring unusual matters and disciplinary matters
to Supervisor."
With respect to the issue of time-off, the Grievor, in
cross-examination indicated that she would-approve requests
for time-off for doctor's appointments and annual leave days
when they were "... an average length of time ... generally
one day was okey." Even then, the Grievor still advised
Staff Sergeant Powers of the fact that she had granted the
leave. In all other areas she referred the request to Staff
Sergeant Powers for approval. Concerning vacation requests,
in situations where there was an overlap of such requests,
the Grievor would attempt to have the Technicians work out
any problems amongst themselves. If they~ could not resolve
the problems she did not make the decision but rather
referred the matter to Staff Sergeant Powers. Regarding the
issue of overtime requests, the Grievor recommended to Staff
Sergeant Powers that the requests be approved.
With respect to the differences on the issue of staff
selection, the Grievor has done a reference check twice and
verbally notified a successful candidate once. The
reference check and notification to the successful candidate
were done at the request of the Inspector on the Selection
Committee and/or Human Resources representatives.
- 3 -
Concerning the differences on the issue, of performance
appraisals, the Grievor's evidence was that "Staff Sergeant
Powers actually writes the evaluation, my input is asked
into it.".
With respect to the differences on the issue of discipline,
the Grievor's evidence was that she has never.been the
recipient of a grievance, only one verbal complaint. When
she received this complaint she advised Staff Sergeant
Powers of it.
It is my submission therefore, that Exhibit #? more
accurately reflects the Grievor's actual responsibilities.
Does the Grievor, in reality, grant time-off or approve
vacation and overtime requests? I think not. If requests
for time-off were 'for periods of time greater than one day
or if a conflict arose with an overlap of vacation requests,
it was Staff Sergeant Powers who granted the time-off. Does
the Grievor really select the most qualified candidate
during the interview process? Again, I think not for it is
a committee decision based on which candidate was awarded
the highest score by the Selection Committee, The Grievor
has conducted two reference checks and made one verbal offer
of employment at the request of an Inspector or a Human
Resources official, Concerning performance appraisals, the
Grievor provides input to Staff Sergeant Powers. Concernin.g
grievances, the Grievor does not receive grievances, she has
received only one verbal complaint.
In my opinion, the Grievor's job properly falls within the
Technician 4, Photographic class standard, Exhibit #1.
cross-examination the Grievor agreed that each and every
paragraph under the headings of Skills/Knowledge, Judgement
and Accountability (in Exhibit #1) applied to her position.
Much was made of the fact that the Grievor indicated that
only three of the seven examples cited under the paragraphs
~within the Skills/Knowledge and Judgement Sections applied
to her. But, as was pointed out in written submissions, an
e×~mpte is not an exhaustive representation. I believe an
example is just that, an example. To me, thereal issue is
whether or not the broader subject matter contained in the
paragraphs, and not the examples themse]ves, apply under the
three sections of Ski'lls/~{nowledge, Judgement and
Accountability. The Grievor said they did. Accordingly, by
comparing the agreed to paragraphs with the Position
Specification (Exhibit #7), I feel the Grievor's job
properly "fits" this class standard.
- 4 -
The Grievor alleges that benchmark TPH14-2 is more
appropriate to her duties. Counsel for the Ministry
however, has pointed out that this position is one of the
positions within the "Photography Group" and as such is
(Exhibit #2~ page 2) "...restricted to positions in the
Ontario Public Service which are considered to be exclusions
as defined within Section 1, sub-section l(g) of The Crown
Employees Collective Bargaining Act, 1972" (now Section
(f)). Section t(f)(iii) of the Act excludes "...a person
employed in a managerial or confidential capacity". Since
the Board does not have jurisdiction to determine whether a
position is included or excluded from the bargaining unit,
it must determine whether or not an employee performs
managerial functions in those cases where an employee claims
entitlement to a position excluded on that basis. Based on
the evidence and the job descriptions, I am not convinced
that the Grievor performs managerial functions.
Turning now to the argument of whether or not management
supported the Grievor's claim that she was improperly
classified one has to examine the related correspondence.
On July 22, 1988, Staff Sergeant Powers sent a memo (Exhibit
#3) to the Director of the Technical Support Branch
requesting that "...the position specification and class
allocation ... be reviewed as soon as possible" and he went
on to say that "The duties and related task area on the
specification sheet is in need of revision". This Board has
heard no evidence that Staff Sergeant Powers is a job
evaluation expert. He simply requested a review, he did not
recommend a reclassification of the position. The Director
of the Technical Support Branch (Superintendent McArthur)
then wrote a memo (Exhibit #17) to the Director of the Human
Resources Services Branch. I~ that memo he stated "I would
support Staff Sergeant G. Power's request for an updating on
position specification and class allocation on Supervisor
Linda McSevney, Colour Photo finishing", Once again this is
clearly not a recommendation for a reclassification but
rather a review. As a result of these memos, the Grievor's
position specification was revised and evaluated by the
appropriate Human Resources representative,
- § -
In Exhibit #8, an "authorized" job evaluator, Shirley
Anderson, documented why the position was evaluated at the
Technician 4, Photographic level. Exhibit #8, it should be
noted, differed from Exhibit #7 only in the fact that the
rationale for the classification section had been filled in
and signed by Ms. Anderson on October 31, 1988. On page 3
of this award, the Board majority makes reference to the
Grievor's "...responsibility for meeting time and volume
demands.., the quality of the work performed by other
technicians.., monitors the production of the entire
laboratory.., ensures the equi.pment is used efficiently..."
and "...regular contract with suppliers in relation to the
upgrading of supplies ~and the repair and purchase of
equipment...".In my opinion, the job evaluation rationale in
Exhibit #8 more closely describes the Grievor's duties.
This evaluation makes reference to the "...position
exercises group leadership skills e.g. guide technicians on
operation of new, sophisticated equipment and provide
resolutions to technical problems.., working under general
administrative supervision.., position uses judgement to
modify procedures to meet client requests.., to determine
technical parameters of work flow.., accountable for quality
of work through establishing appropriate lab standards and
procedures, modifying same where necessary, providing
training to technicians and reviewing work for quality...".
In conclusion, I feel the Grievor is properly classified as
a Technician 4, Photographic.
For all of the reasons cited above, I would have dismissed
the grievance. With'respect to the issue of retroactivity,
I am not convinced that retroactivity back to September 22,
1988 is appropriate in this case°
Don M. Clark, Member