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HomeMy WebLinkAbout1990-1203.Smith.91-12-02 J' I . , DNT ARlO EMPLOYÉS DE LA CDURONNE CROWN EMPLOyEES DEL'DNTARIO .- . III. GRIEVANCE COMMISSION DE I " ~ SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, MSG lZ8 TELEPHONEITELËPHONE: (416) 326- 1388 180, RuE OUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO), MSG TZ8 FACSIMILEITËLÉCOPIE: (416) 126- r396 1203/90 I - I IN THB HATTER OF AN ARBITRATION Onder THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT ... Before . TBE GRIEVANCE SETTLEMENT BOARD BETWEEN . l' OPSEU (Smith) Grievor - and - u. The Crown in ~ight of ontario - .- --- ~ (Ministry of Transportation) Employer BEFORE: w. Kaplan Vice-Chairperson J. Carruthers Member D. Walkinshaw Member ______ c_ .__ - .~ -- ~ ~-- FOR '1'1IB R~ Wells GRIEVOR· Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE P. pasieka EMPLOYER Counsel winkler, Filion £¡ Wakely Barristers & Solicitors HEARING January 22, 1991 October 10, 30, 1991 . -.............. - +---- 2 r , I f ~ IntrQduction I This case is one of series of classification disputes referr~d·to the Board involving highway painters employed by the Ministry of Transportation. On October 10, 1991 certain prelíminary matters relating to the consolidation of a number of these cases were addressed by the Board, In the re~ult, this ! panel took jurisdiction over this grievance and one other (Donnelly 456/91). I The remaining cases were remitted to the Registrar for rescheduling, . I I I ! I The Grievance ¡ I r i By a grievance dated June 8,1990, Mr. Murray Smith, a Zone Paint Foreman i ! with a Highway General Foreman 1 classification, grieves that he is improperly classified. By way of remedy, Mr. Smith requests "reclassification to a position higher than my present classification with retroactive salary and benefits to the date it was first due:' Mr. Smith was' the only witness in these proceedings. Before turning to his evidence it is useful to set out the relevant parts of his class standard. HIGHWAY GENFRAL FOREMAN 1 This class covers positions of employees who supervise 'the day-to-day activities of sub-foremen, equipment operators and manual workers, engaged in repairing roads, bridges, fences, culverts and other construction or maintenance projects within a District. CR This class also covers positions of foremen who are responsible for carrying out specialized maintenance operations within a District such as zone painting, inspecting, repairing and painting of bridges and landscaping and related arboricultural work where the general planning of such work is the responsibility of a qualified Arboriculturist 1 . ,.. , ~ 3 f Projects assigned are expected to be completed without ' . " 'detailed reference to supervisor, They estimate and arrange " for materials and equipment required for each job; arrange for staff and assign them to various projects. They cheèk time records and prepare reports on work progress, expenditures, , vehicle operations costs and material usage, ... As a zone painting foreman they supervise the work of employees engaged in zone painting within a District, measure and mark new roads for painting and decide on the type of marking açcording to Department standards; direct crews in repainting of markings, e.g. cross walks, detours, cross hatching, etc., ensure daily cleaning and maintenance of . equipment. [Remainder emitted] ! In brief, the union took the position that the griever was not properly classified in that his duties and responsibilities were greater than those .., envisaged in the class standard. Specifically, the union took the position that the grievor: (a) assisted in the selection of staff; (b) evaluated the periormance of staff; (0) signed time sheets; (d) authorized and approved expense accounts: and (e) coordinated vacation schedules. As a result, the . ' union sought a Berry Order. Employer counsel took issue with some of these characterizations and took the positron that in any event the class standard, excerpted above, accurately and adequately described the griever's duties and responsibilities. Th~ Evidence Much of the evidence was not in dispute. Mr. Smith works in and out of the Bancroft District, and he is the foreman of a crew of three persons responsible for special markings on pavement in Bancroft, as well as in the western part of the Ottawa District. The grievor's supervisor is Mr. C. G. Watson, who holds the position of Services Supervisor, It was agreed by the ; 4 , , parties that the grievor's position ~pecification. which was introduced into - : , evidence. was generally accurate. Mr. Smith began work with the Ministry in 1967 and has held his present position since 1988, The special markings crew, of which the grievor serves as foreman, is composed of himJ two permanent staff and one seasonal employee, The crew operates a two-ton hatch truck. . . It is convenient to consider the grievor's evidence under the different headings advanced by his counsel in support of the request for a Berrÿ Order. ;] (a) Selection of Staff As a result of the grievor's promotion to foreman in 1988J a vacancy arose in .-, the crew, The grievor was one of a number of people who reviewed all of the ". c _ . ' applications submitted for that position. and was also involved in the interview processJ taking notes, etc.· As a result of this competitionJ another vacancy in the crew was created (because the employee who won this competition moved'up to a better job within the crew). Th~,grievor was not,. howe'verJ involved in this competition because he was working in Ottawa at the time. Had he been assigned duties in the Bancroft district he likely would have been involved. With regard to hiring the seasonal employeeJ the ð grievor was not involved in the initial selection, bl!t he did tell Mr. Watson that the employee selected was working outJ and Mr, Watson relied on this in deciding to keep that employee on the payroll. (b) Performance Appraisals It was admitted by counsel for the employer that the grievor evaluates the performance of his two regular employees. He also is responsible for the evaluations of the seasonal employee, The evaluation process involves the I " -' , .:.; 5 , ( : grievor preparing a hand-drafted evaluation. He submits this evaluation to Mr. Watson, who reads it over, and sometimes Mr. Watson makes or suggests changes, The evaluation is then typed, and the grievor reviews it with the employee concerned. (c) Time Sheet~ It was agreed that the grievor signs, time sheets. . (d) EXD~n~e ACCQunts It is sometimes necessary for the grievor and his crew to stay out overnight while on a job. In this situation each employee is responsible for filling out J his or her own expense' form. Once they fill them out, the grievor reviews the forms for mistakes, and ensures that they are not charging more than they . . "are entitled to. The grievor then signs the form in the box titled "authoriz«;l'd , by." Mr. Watson "authorizes" the grievor's expense form. '.' (e) Schedl.lling Vacations Vacations must be taken in the summer, and the grievor is responsible for ensuring that his vacation and that of the two regular employees do not overlap. Mr, Smith also testified about the level of supervision that he receives. In brief, the grievor receives almost no supervision when he and his crew are out working on an assignment, and this is particularly the case when they are out of the Bancroft region working in Ottawa. Moreover, there are very few, if any, business contacts between the grievor's crew and Mr. Watson. If the grievor's truck breaks down while he is out on the road, he has the authority, and the necessary documentation, to order repairs. The grîevor has done some very minimal training of the crew. .I . 6 ~ . ~ l The grievor takes a lot of initiative in the planning of his work. He prepares a work schedule each spring, and in the fall he orders the paint and crushed glass that he will need in the following painting season. Mr. Smith is also responsible for filling in va"rious forms dealing with stock and hours worked, On one occasion; the grievor discussed with Mr. Watson a disciplinary problem he was having with one member of the crew. Mr. Watson told him to look after it, which he did. The grievor meets with Mr. Watson at least every . two weeks for approximately thirty minutes, although he will also contaCt him as necessary to discuss priority items. . In cross-examination, the grievor agreed that he spends approxinlately five months of the year as a night patroller, at which time he does notdo any of the work described above.. The grievor agreed that he was properly classified insofar as his night patroller duties were concerned. The painting duties were recurring, .and Mr. Smith told the Board that he follows the same, pattern every year. Mr. Smith testified generally about some of the matters , covered in the examination-in-chief. Suffice it to say that his evidence in cross did not differ significantly from that given in chief. In this regard, for example, when it is necessary to be away from home, the crew leaves work on Monday morning and returns to base on Thursday afternoon. Mr. Smith agreed that he has an opportunity to consult with his supervisor betore he leaves tor the out-ot-town assignment, as well as upon his return. The authorizing of his crew's expense accounts merely involved him ensuring that there was no mathematical error or overcharging. In reexamination, the grievor testified that his crew normally works a four day weekJ but that sometimes his additional supervisory responsibilities . require him to work evenings or to come in on Friday. This was especially so .. ¡ " 7 I ~ f when there was a lot of paperwork to complete. ~ The evidence having been completed, the case proceeded to argument. I Union Argum~nt I ; Union counsel only cited one case to the Board (Dumond 1822/90 (Kaplan)), Counsel agreed that percentages spent by an employee in various activ:ities j are nót that useful in determining classification disputes, and argued that i the difference between the job described in the class standard and the job l actually being performed need not be that great for'a classification grievance to succeed. Rather, all the union 'need establish is thaÙhere is a ¡ '1 substantial and qualitative difference between the two which indicates that . the class standard no longer applies. In counselts submission, this was such a case. .. Counsel argued that the class standard for Highway General Forema"n was directed at a person who was performing a "foreman's job," that is to say. someone who supe'rvised the day-to-day work of a group of employees. Counsel noted that this was set out in the first paragraph of the standard, and while he did not dispute that the grievor did this, he argued that the supervision provided by the grievor went beyond day-to-day supervision in , the sense that the grievor did not just supervise their work. but was responsible for the supervision of the entire employment relationship. And this, counsel submittedt is not what was intended by this class standard. In counsel's view, the evidence supported this assertion. Counsel argued that the grievor played an important role in the selection of employees, and in their annual evaluations. In counsel's argument, an ordinary foreman might give input to a supervisor about the work of ~n - 8 .J ,~ ~ I employee for the purpose of evaluation. That the grievor was no ordinary . I foreman was made apparent by the responsibility he took for the entire evaluation process. Likewise, Mr. Smith authorized his crew's expense forms, and took responsibility for scheduling the vacations of the two regular employees. At the same time, counsel pointed out that the grievor i himself received minimal supervision, and accordingly worked independently. He ordered needed supplies, and annually planned the work. There was some. evidence that the grievor was involved in training, although it was I I admittedly very limited. Nevertheless, none of these factors could be said to , be typical for most foremen and forewomen. tn this regard, counsel nóted that many of the grievor's "additional" duties and responsibilities were J specifically enumerated in a higher class standard which was introduced into evidence. Counsel argued that this fact further demonstrated that the . grievor's current class standard was incomplete. Accordingly, in counsel's ._..~ --., - submission, the Board should exercise its discretion to order the employer to provide the grievor with a new classification that accurately described his additional duties and responsibilities. ~ . E01ployerArqument In counsel's view, the class standard accurately described the'grievor's dutjesand responsibilities. Counsel noted that the class standard, as excerpted above, covers foremen performing "zone painting." Counsel also noted that the standard went on to provide that: Projects assigned are expected to be completed without detailed reference to supervisor. They estimate and a~range for materials and equipment required for each jOb; arrange for staff and assign them to various projects, They check time records and prepare reports on work progress, expenditures, vehicle operations costs and material usage. ' .' I ~ 9 ~ I· _ In counsel's view, the evidence established that the grievor was doing the ~ exact things that were intended for persons occupying his position. He . worked without detailed reference to a supervisor. He estimated and arranged for equipment and materials. He assigned staff (and assisting in the selection of one staff member fell under this heading), and checked ' various records and filled out various forms. All of this, in counsel's opinion, was exactly what the grievor did in those months of the year when he occupied this position. . Counsel also noted that incumbents in this class "supervise employees, II and the grievor's involvement in the appraisal process could be said to fall under this heading. Counsel noted that the reference to supervision was in contrast to the reference to "direct," both of which appear in the last paragraph of the . . standard excerpted ab9ve, and argued that this indicates that it was intended not just that members of this class exercise responsibility for the daily work of employees, but also exercise some supervisory duties in the sense of that word broadly defined. Here too counsel argued, with reference to the evidence, that this is what was happening in the instant case. In counsel's submission, it was also important to bear in mind that the standard was . - .-.- drafted with a mobile crew in mind. Obviously, the person in charge of that mobile crew would assume greater responsibility for the supervision of the crew than might be the case in a stationary place of employment. It would be virtually impossible, for example, for Mr. Watson to do appraisals of the employees, because he did not have any significant experience with them. In conclusion, counsel argued that even if some of the grievor's duties could be said to be outside the standard, they were not of the kind and character necessary to justify a Berry Order, ~, " 10 ~ . Decision . .. r Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this grievance must be dismissed. For a clàssification grievance to succeed, a grievor must show that his or her job does not fit within the relevant class standard. Very simply,.according . . , to the long line of jurisprudence of this Board, for a reclassification order to be given the Board must be satisfied that there is a substantial difference between the duties performed and the duties referred to in the class standard. In our view, the evidence establishes that there is no such' difference in this case. ,. ./ The instant case is somewhat unusual in the sense that the class standard .. specifically describes the_9uties and responsibilities of the position, and we - -- find on the evidence that it describes them comprehensively and welL The grievor works as a Zone Painting Foreman. He works with limited supervision. He estimates and arranges for the material and equipment . . required in the job: He arranges for staff, and assisting in hiring and_ scheduling vacations could fall under this heading, and he assigns staff to various projects. He checks time records, and and prepares reports on work progress and expenditures. His authorizing of the expense forms falls under this heading. In our view, the evidence indicates that the core features of the grievor's job are covered in the standard, and while some of his duties, such as performing evaluations are riot specifically mentioned, they are nevertheless consistent with his duties generally, and in any event are not of such a nature or character to warrant a Berry Order. Obviously, the grievor is a hard-working employee rendering valuable service to the Ministry. He is not however, on'the evidence before us. improperly classified. , ~ 1 1 . . , . . Accordingly, the grievance is dismissed. r ; . - DATED at Ottawa thi~~day ofrett'V\~/1991, ji'(¿ . William Kaplan Vice-Chairperson ~ J, Carruthers Member ~ - ,::..,-.1 r., ,~"_, /'.-/' ',').J--, ..1 ,/ ... ./ /.. ./ ' , L I ¡ D. Walkinshaw \ Member , .