HomeMy WebLinkAbout1989-1920.Markakis.91-03-05~ ONTAR~ EMPLOY£$ DE LA COURONNE
CROWN EMPr..O YEE$ DE L 'ONTA RfO
GRIEVANCE C.OMMISSlON DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
tSO DUNDAS STREET WEST, $~fTE 2'~O0, TORONTO, ONTARfl:), MSG L,.,.,.Z$ TELEPt~O~E/T~L~'i=t.4OI'~E:
1920/89
· iN THE MATTER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN 0PSEU (Markakis)
Grievor
- and -
The Crown in Right of Ontario
(Ministry of Government Services)
Employe~
BEFORE: S. Stewart Vice-Chairperson
I. J. Thomson Member
M. O'Toole Member
FOR THE B. Rutherford
GRIEVOR Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE R. Little
EMPLOYER Counsel
Hicks Morley Hamilton Stewart
Storie
Barristers & Solicitors
HEARING: June 14, 1990
September 18, 1990
December 3, 1990
DECISION
The grievance before us is dated November 15, 1989. The
grievance states: "I grieve that the employer is in
violation of the Collective Agreement by not paying me ~he
G-4 note." The settlement requested is that the "employer
pay the G-4 note".
The grievor, Mr. M. Markakis, is employed in the
position of senior building systems operator. He has been
~mployed in that position since August, 1989'. The position
specifications outlining tt~e duties of his position are
attached hereto as Appendix A. As the position
specifications indicate, the position is classified.as
Steam Plant 3 Engineer Atypical. The position
specifications indicate that the reason for this
classification is the similarity the job has to the type of
work'performed in a steam plant.
The "G4 note" is contained .~in the General Notes to the
Class Salary Schedule. Mr. Little stated that it was his
understanding that the General Notes may aot form part of
~he Collective Agreement however it was not disputed that a
claim for entitlement based on the General Notes is
4rbitrable. In the General Notes to the Class Salary
Schedules the following definition is provided:
A "Classification Note" or "Staffing Note". is an
approved modification to the salary range attached
tO a clas~ in accordance with certain c0nditio,]s'
as specified in the terms of the Note.
The salary range of a position in a class to
which a Classification or Staffing Note applies
is the salary range as modified by the temas of
the Note.
The General Notes provide as follows with respect to G4:
A Steam plant engineer in charge of all the shift
engineers, in a power plant, who acts as the assistant
to the steam plant chief who has responsibility for
all institutional maintenance, shall be permitted to
progress one rate beyond the maximum for the
established salary range.
Modified salary ranges are as follows:
40112 Steam Plant Engineer 2 - Note G4 01/01/87 13.59 13.'99. 14.30
40114 Steam Plant Engineer 3 - Note G4 O1/O1/87 14.62 14.96'-15.44
Mr. Markakis is one'of five senior building systems
operators employed at the Queen's Park complex. The Board
was advised that one of those five, a Mr. Smellie, receives
the G4 note. The Board was further advised that Mr.
Smellie receives this compensation as a result of a
settlement between the parties 'arising out of a grievance
filed by Mr. Smellie. The Board was also advised that the
agreement between the parties states that the agreement is
'without prejudice or precedent. Ms. Rutherford argued that
the Union should be entitled to rely on the payment of the
G4 note to Mr. Smellie in this proceeding. The majority of
the Board (Mr. Thomson dissenting) rejected this
submission. It was the majority's view that to allow the
3
Union to rely' on this evidence would clearly have th'e
effect of allowing the agreement to '~ave a precedentia~ and
prejudicial effect on the employer's position. ~aving
agreed that the payment of the G4 note to Mr. Smellie would
not have such an effect it would be inappropriate and
clearly contrary to sound principles of labour relations to
allow the union to rely on the agreement in this case. The
settlement of grievances is clearly a matter that must be
encouraged and respected by this Board. To allow parties
to rely on circumstances that resulted from the settlement
of a grievance on a withou~ prejudice and without precedent
basis would have the effect of undermining.the i~tegr£ty of
settlements and discouraging the settlement process.. It
was for these reasons that the majority of the Board ruled
that the Union was not entitled to rely on the
circu~n$tances resulting from the settlement of the Smellie
grievance in this proceeding.
The evidence deali~%g with Mr. Markakis" duties was, by
and large, not in dispute. Mr. Markakis stated that his
job specifications contain an accurate description of his
duties..In his evidence he emphasized that ~is supervisor,
the building services supervisor, is not present during the
evenings, nights, weekends and holidays and that he
receives any calls relating to concerns about the operation
of the environmental, electrical and mechanical systems.
4
There is a junior building systems operator on duty during
'ghese shifts and Mr. Markakis stated that he is res]~nsible
for assigning duties to that person,
Mr. G. Quidzinsky, who is manager of operations for tl%e
Queen's Park complex, testified that a power plant is a
plant which generates steam, generally from a boiler. He
stated that there are no boilers or any other steam
producing capacity in the Queen's Park complex. He noted
that a steam plant chief would require a certificate under
the Operating Engineers AcC, depending on the horsepower of
the plant. Neither Mr. Markakis' postion nor the positio~
of his supervisor requires a certificate under the
Operating Engineers Act. Mr, Quidzinsky stated that there
are certain dangers inherent in working with boilers and'
similar devices which is a significant factor that
distinguishes Mr. Markakis' work from the work perfo~ed by
persons having responsibility for a steam generating plant.
Mr. Markakis has no role with r. espect to maintenance of a .
boiler.
Mr. Quidzinsky explained that on the evening, nights
and weekend shifts Mr. Markakis is responsible for
monitoring the control centre which receives calls froJ~
~attended buildings. Mr. Markakis is not required to
attend at the site of the problem as he is required to
5
remain at his' station. Rather, he is responsible for
forwarding the call on to the res~r~;lsible person. Mr.
Quidzinsky stated that while some of the buildings have
boilers there is a stationary engineer on duty in those
buildings. Accordingly, Mr. Markakis would not be required
to carry out any work of any kind in connection with the
steam plants, Mr, Quidzinsky also testified that all major
decisions are made by one of the supervisors who are
available by telephone during the "off shifts".
Mr. J. Sherwin was called by the Union to give evidence
as to the circumstances in which he receives the G4 note.
Mr. Sherwin is classified as a Steam Plant Engineer 2 and
ts at the maximum level of his salary range. He is
employed by the Ontario Development Corporation at the
Norham Industrial Park in Cobourg. He ,is solely
responsible for the steam line and all maintenance in a
boiler generated steam plant. The plant is guarded and
when Mr. Sherwin is off duty he is paged to deal with any
difficulties that have arisen. Mr. Sherwin is a third
class stationary engineer and he is required to possess a
certificate under the Operating Engineers Act in order to
carry out his duties.
It is clear that the Mr, Markakis is not a steam plant
engineer in charge of all shift engineers in a power plant.
6
He does not a~ct as an assistant to a steam plant chie~
having resPonsibility for all institutional maintenance in
the context of a power plant~TM Accordingly, the work that
he performs does not' fall within the express criteria for
the payment of the G4 note. The evidence established that
Mr, Sherwin was paid the G4 note notwithstanding the fact
that he does not act as an assistant to a steam plant chief
nor is he in charge of all shift engineers. Ms. Rutherford
argued that by paying Mr. Sherwin the G4 note the employer
had modified the C~ass Standard, It was further submitted
that the circumstances of ~r. Markakis are analogous to the
circumstances of Mr. Sherwin and that the Board should
conclude that Mr. Markakis is entitled to the G4 note on
the. basis of a proper application of' the modified Class
Standard. Ms. Rutherford emphasized that the Employer had
assigned Mr. Markakis the classification of Steam Plant
Engineer 3 Atypical. It was her submission that having
been so classified, Mr. Markakis should be entitled, to all
of the benefits that any other person classified as a Steam
Plant Engineer should be entitled to. Alternative%y it was
argued that the Board should conclude that Mr. Markakis'
position was not properly classified and the Board should
issue a "Berry order" requiring the Employer to properly
classify Mr. Markakis..
Even if the Board were to accept Ms. Rutherford's
7
submission that the payment of the G4 note to Mr. Sherwin
should lead us to the conclusion that the relevant Class
Standard has been modified it is our, view that this
conclusion would not assist Mr. Markakis. Mr. Sherwin has
direct responsibilities in connection with the operation of
a power plant, unlike Mr. Markakis. We cannot agree that
the duties of Mr. Markakis are analogous to those of Mr.
Sherwin. With respect to Ms. Rutherford's alternative
submission that we should conclude that Mr. Markakis'
position is improperly classified, we agree with Mr.
Little's submission that to decide this grievance om the
basis of whether or not Mr. Markakis is properly classified
would be to allow a fundamental change in the nature of the
grievance. Mr. Markakis is entitled to grieve his current
classification if he wishes to do so and to have such a
grievance processed i~ accordance with this Board's
procedures for classification cases. These procedures have
~ot been invoked in connection with this grievance.
8
For these~reasOns, it is our eonciusion that this
grievance must be dismissed,
Dated at Toronto this 5thday .of March 1991
S, L, Stewart - Vice-Chairperson
"I DISSENT" (Dissent to follow)
I, J, 'ThomsOn - Member
.M,.F, O'Toole -, Member
.... . Position Specification & Class Altoc n-CSC 6!50
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