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1991-0348.Woodrow.93-02-23
ONTARIO EMPLOYES DE LA COURONNE '~'~ CROWN EMP~. 0 YEES DE L 'ON TA RIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 150 DUNDAS STR~T V~$T. SUITE 2?00, TORONTO, ONTARIO, MSG ;Z8 TELEPHONE~TELEP~iON~. (4 ~1 3~6-I3~8 180, RUE DUNDAS OUE~T, BUREAM 2~, TORONTO (ONTARIO). MSG 1Z8 F~CSff~ILE"TEL~COPIE ; {~ ~6) 326- 1395 348/9[ Un,er TH~ CRO~ EMP~YEES COLLECTI~ B~G~INING ~CT Before T~ GRI~CE SETTLE~ BO~ BE~EN OPSEU (Woodrow) Grievor - ~ - The Cro~ in Right of Ontario (Minist~ of Co. unity & Social se~ices) ~ployer BEFOg: M. Gorsky Vice-Chai~erson P. Ki~ Me. er ~ R. Scott Me. er FOR .THE R. Wells UN~ON Counsel Gowling, Strathy & Henderson Barristers & Solicitors FORT HE K. Renison EMPLOYER Counsel Legal Services Branch Management Board of Cabinet HEARING September 21, 1992 1 DE~ISION THE GRIEVANCE The Grievor filed a grievance on February 20, 1991 claiming that he had been improperly classified as a Cook 3 and requesting that he be appropriately classified. The position of the Union was that there was no existing classification that would accommodate the Grievor's duties and responsibilities and that this was an appropriate case for the issuance of a Berry order. AGREED TO BACKGROUND 1. The ~Grievor is employed by the Ministry of Community and Social Services at the Huronia Regional Centre located at Orillia, Ontario as a Head Cook. The Hur0nia Regional Centre is a residential facility for the developmentally handicapped with a resident population of approximately 700 at the time of the grievance. 2. Three meals a day are served to the residents, which meals are prepared in a single kitchen. 3. The supervisory structure in the Food Service area is as follows: 2 1. The Food Service Administrator, was Esther Saunders, at all relevant times. 2. There were three other managers under Ms. Saunders, being the Head Chef and two Food Service Supervisors. 4. The Food Service Supervisors and those working under them are generally responsible for the delivery of meals. 5. The Head Chef, and those working under him are generally responsible for the production of meals. 6. Reporting to the Head Chef are two employees with the position title of Head Cook, who are classified as Cook 3's, the Grievor being one of them. The Head Cooks alternate shifts. 7. Also reporting to the Head Chef, but under the Head Cooks, are two to three Cook 2's. 8. An additional employee reporting to the Head Chef i~ the Staff Cook who works in the staff cafeteria. 9. There are also two Storespersons and one Baker reporting to the Head Chef. 3 10. In the Food Service area, supervised by the Food Service Supervisors, meals prepared in the kitchen are moved to the "B" dining room where food is assembled 'by Food Service Helpers onto meal trays which are located on a. conveyor belt arrangement. Residents eat in their rooms or in small dining areas in groups of five to six. 11. Ten to fourteen Food Service Helpers assemble breakfast for service in dining room "B". 12. In addition to the above noted Food Service Helpers, two Kitchen Porters, who work in the kitchen performing such tasks as cleanup and scraping pots, as well as a Food Service Helper who performs such tasks as chopping vegetables and delivering milk to the dining facility, report to the Food Service Supervisor. The following documents were fil'ed with the Board: 1. Grievor's statement dated July 17, 1991. 2. Employer's statement dated August 15, 1991. 3. Agreed Statement Of Fact date December 5, 1991. FACTS AGREED TO An examination of the above docu~ents indicates the extent of the parties' agreement with respect to certain facts relevant to this matter: 4 1. The Grievor is classified as a Cook 3 (Bargaining Unit) (Class Co~e 50217). A copy of the class standard for Cook 3 (B/U) is annexed hereto as Appendix 1. 2. The Grievor's required duties were modified on November 6, 1990 as a result of additional duties being assigned to him pursuant to a memorandum of that date from Esther Saunders, RPDt, Food Service Administrator. The memorandum referred to is attached hereto and marked as Appendix 2. 3. The November 6, 1990 memorandum indicated that Food Service Supervisors would no longer be reporting for work at 6:00 a.m. on Saturdays, Sundays and statutory holidays as they had done until that time. Instead, they would report to work at 9:15 a.m. The memorandum indicated that the Food Service staff who had been required to contact the Food Service Supervisors in the event that they were calling in sick were required, from that point onward, to contact the Head Cook. 4. The parties agreed that the obligation of the Grievor to call in replacement staff did not carry with it disciplinary and/or performance appraisal responsibilities. 5. The Grievor works a bi-weekly shift with the following pattern: Mon. Tues. Wed. Thurs. Fri. Sat. Sun. 5 O O X X O O O Mon. Tues. Wed. Thurs. Fri. Sat. Sun. X O O X X X O - On shift X - Off shift 6. The Grievor works from 5:00 a.m. to 5:00 p.m. daily, is paid for 11.44 hours on each shift and works 80 hours during each bi- weekly schedule. POSITION OF THE PARTIES WITH RESPECT TO DISPUTED FACTS 1. In paragraph 4 of the Grievor's: statement, the position was taken that until November 6, 1990 his required duties and responsibilities included the following: a) preparing meals; b) providing technical supervision and guidance to subordinate cooks; c) ensuring that safe sanitary production methods and handling procedures are enforced. 2. Appendix 3, annexed hereto, is the position specification and class allocation form with respect to the Grievor's position of Head Cook which is effective from March 1, 1991. It contains, in para. 3. 1., under duties and related tasks the preparing of meals. Under 3. 2 the Grievor: "provides technical supervision and 6 guidance to subordinate cooks and staff cook." Under para. 3. 3, he: "ensures safe sanitary production methods and handling procedures are enforced." 3. In para. 6 of the Grievor's statement, referring to the memorandum of November 6, 1990 from Esther Saunders, Appendix 2, the position is taken that the memorandum "indicated that Food Service staff who had been required to contact the Food Service Supervisors in the event they were calling in sick, were required, from that point onward, to contact the Head Cook instead. The Head Cook is required by this memorandum to take sick calls and to make replacement for the 6 a.m. shift from a call-in list." 4. The Employer responded to this statement in para. 5 of its statement: "The memorandum indicated that the Bead Cook on duty would take calls and replace shifts from 0600 hours to 0915 hours for the early shift. No other tasks were assigned." The last sentence was apparently in response to the assertion contained in para. 6 of the Grievor's statement: "... The memorandum indicated that the Head Cook on duty between 6 and 9:15 a.m. on those days would assume the duties previously carried out by the. Food Service Supervisors. The memorandum specifically indicated that Food Service staff who had been required to contact the Food Service Supervisors in the event that they were calling in sick, were required from that point onward to contact the Head Cook instead." 7 5. In para. 7 of the Grievor's statement, the following statement appears: In addition to being required to take over the call- in and personnel replacement duties of the Foo6 Service Supervisors, the Head Cook is expected to perform, and does perform other supervisory functions perviously carried out by the Food Service Supervisor. Such additional duties include !receiving and responding to requests for direction from Food Service Helpers and generally supervising the FOod Service Helpers during the newly mandated absence of Food Service Supervisors. 6. In paragraph 6 of its statement, the Employer responded to the assertions contained in the last quoted paragraph: The Employer states! that the class standard contemplates supervision of kitchen help by the Grievor. The Employer states that for the purposes of the class definition, food service helpers fall within the range of employees contemplated by kitchen help. 7. The position of the Union, is set out in para. 8 of the Grievor's statement: As a result of the implementation of the November 6, 1990 memorandum, the Head Cook position, and in particular that of the Grievor, Mr. Woodrow, has been expanded to include duties and responsibilities not anticipated by the Class Standard. Specifically, the supervision of non-cooking personnel, including the call- in and replacement duties, tasks normally assigned to and carried out by Food Service Supervisors, have been added to the ordinary and pre-existing responsibilities of the Head Cook position. 8. Relying on what it regarded as a:new duty and responsibility: "... the calling-in of Food Service Helpers," as set out in para. 9 of the Grievor's statement, and the supervisory duties ~referred to in para. 7 and 8, which latter duties were said not to be included in the revised Position Specification, it was the position 8 of the Union that the referred to dutie~ and responsibilities exceeded those outlined in the Cook 3 (B/U) Class Standard (see para 10 of the Grievor's statement). In para. 3 of the Grievor's statement there is an allegation that "he is improperly classified as his required duties, responsibilities and skills exceed those set out in his Class Standard." We take it that reference is to the class standard to which he has been assigned (Cook 3) (Bargaining Unit) (Class Code 50217). 8. The response of the Employer in its statement (para. 3) is that: "the Grievor is properly classified as a Cook 3." 9. The alternative position of the Employer is found at para. 7 of its statement. ... should the Board find that the food service employees are not kitchen help as defined by the class standard, the Ministry states that the task of calling in the food service helpers is not a core duty. The task is not an essential component of the daily tasks of the Grievor. The time devoted to the undertaking of the task does not substantially alter the time available for the Grievor to perform his existing core duties. On March 8, 1991, the Grievor's position specification was rewritten to include the calling in of food service helpers. The position specification anticipates that not more than 5 percent of the Grievor's work time is to be spent on this task. 10. It was the position of the Employer (para. 8 of its statement) that: "... the nature of the task [referred to in para. 7 of its statement] and the time required to perform the task do not substantially alter the core duties of the Grievor." VIVA VOCE EVIDENCE In order to deal with the differences between them concer~ing certain aspects of the evidence relevant to this case, each party called a witness. The Union called the Griewor and the Bmployer called Ms. Saunders. Evidence of the Grievor 1. The Grievor has been employed by the Employer since April 10, 1969 and became a cook 3 approximately five years ago. 2. He supervises employees in the kitchen/food preparation area on weekends and holidays from the time of his arrival at 5 a.m. until 9:15 a.m. when a Food Service S~pervisor arrives. 3. Approximately 800 meals are seryed at breakfast, lunch and dinner during the week. On weekends, approximately 436 breakfasts, 616 lunches and 620 dinners are served- 4. Following the implementation of the new procedure provided for in Ms. Saunders' memorandum of November 6, 1990, to be effective on November 12, 1990, he became responsible for taking calls and replacing shifts for the early shift on Saturdays, Sundays and statutory holidays ",..starting at 0600 hours to 0915 hours" when a Food Service Supervisor was scheduled to start. When an employee 10 scheduled for work did not report, and it was a matter of urgent necessity that her work be performed immediately, he endeavoured to find an employee who was present at work and who could perform the work of the absent employee. He would then call in another employee to replace the person he had chosen to replace the absent employee. He stated that, in most cases, an employee who would not be able to report for the start of the shift at 6 a.m. would call him between 5 and 6 a.m. to inform him that this would be the case. 5. In the case of employees who called in to report that they would be late for the start of a 6 a.m. shift, the Grievor would adjust work responsibilities of the employees who were present until the employee who had called arrived at work. 6. On weekend and stat day mornings there would be 15 Food Service Helpers, two Cooks and a Cook 3 scheduled for the early shift. 7. On weekdays, 14 Food Service Helpers, four Cooks, two clerks and a Cook 3 were scheduled for the early shift. 8. When the Grievor received a call from Food Service Helpers that they would not be reporting for work at 6 a.m. on a weekend or stat day, his decision to obtain a replacement would depend on the nature of the job that had to be filled. It might be possible to use a person who was already at work and call in a replacement. 11 Urgent situations, as where the absent employee was part of the production line, had to be filled immediately. When a Cook 2 called in on a weekend that he or she would be unable to be present for the start of their shift at 5 a.m., the Grievor might, fill in until 8 a.m., having called another person, around 7 a.m., to report at 8 a.m. to carry out the Cook 2 duties. 9. Because the cooks start the early shift at 5 a.m., they tend to call in prior to that time if they are unable to attend. In the case of Food Service Helpers, whose, shifts commence at 6 a.m., calls indicating that an employee will be unable to report for work are usually made before that time. 10. Because the Grievor usually arrives at work before 5 a.m., he is able, from that time, to receive calls from Cooks, Food Service Helpers and other employees who are not able to report for work. 11. The Grievor was informed of the results of an Employer's survey showing that over a 26 day period there had been eight call- ins, and he did not take issue with the figures. He stated, however, that the number of call-ins:would vary depending on the time of year. 12. He regarded himself as the person looked to, on weekends and statutory holidays, by the Food Service Helpers to make decisions relating to the Food Service Area (as distinct from the kitchen) 12 from 5:00 a.m.until a Food Service Supervisor arrived at 9:15 a.m. During this time, the Grievor received calls from Food Service Helpers and replaced shifts. This situation applied to weekends and holidays only as on week days the Grievor, as a Cook 3, was the highest ranking person in the area only from 5 a.m. to 6 a.m. Between 5 a.m. and 6 a.m. on weekdays, the Grievor received calls from Food Service Helpers but did not, ordinarily, replace shifts. except in cases that could not await the arrival of a Food Service Supervisor. 13. On occasion, when a Food Service Supervisor was either sick or late during the week, the Grievor would take the Supervisor's beeper to respond to calls and carry out the call-in function until a Supervisor arrived at work. 14. Regular part-time employees were usually called in to replace absent employees. 15. Based on the biweekly shift schedule set out in para. 2 of the Agreed Statement Of Facts, the Grievor works half of the eleven statutory holidays and on 26 Saturdays and Sundays. He is responsible for receiving calls on 125 weekdays from 5 to 6 a.m. and on statutory holidays, Saturdays and Sundays from 5 to 9:15 a.m., which when converted to percentages amounts to 17.75 per cent of his scheduled working time. During periods when he is the senior ranking employee in attendance in the food preparation area, he 13 regarded himself as being required to make certain management decisions in addition to his other duties and responsibilities. 16. The Grievor acknowledged that there 'was nothing in the memorandum of November 6, 1990 from Ms. Saunders that required him to accept calls or perform the call-in function on week-days or before 6:00 a.m.on Saturdays, Sundays'and statutory days. However, he stated that he took calls between 5 a.m. and 6 a.m., on Saturdays, Sundays, statutory holidays and weekdays, either recording the message, or (on Saturdays, Sundays and statutory holidays) actually taking over the call-in responsibility. 17. Prior to the November 6 memorandum, the Cook 2's always relied on the Grievor to accept calls from them between 5 and 6 a.m. when they were unable to attend work. 18. The Grievor identified Exhibit 2, which is an example of a weekend call-in sheet, in that case for Saturday January 26 and Sunday January 27, the year not being shown. Weekend call-in sheets are furnished to the Grievor on Fridays by a Food Service Supervisor. Certain names on the sheet are blacked out by the Food Service Supervisor, representing employees who are not to be called. A new sheet is furnished to 'the Grievor for each weekend by the Food Service Supervisor. Although the evidence with respect to the call-in sheets was limited to weekends, we assume 'that the same situation applied on statutory holidays. 14 19. Exhibit 2 furnishes information as to the areas in which employees (listed in alphabetical order) are trained. 20. The Grievor rejected the suggestion that he was merely required to proceed down the alphabetically ordered list, calling the first person with the required training. Although he did not explain what other factors he employed in not proceeding alphabetically, he stated that there were numerous factors that might cause him to do so,and that he had to use judgment in deciding which employee to call in. It was the Grievor's position that he was given the list without any instruction that he was to call employees in alphabetical order. 21. The Grievor acknowledged that there were many days when no calls were received and estimated that the average call lasted around 15 minutes. 22. He was shown Exhibit 3, entitled "Head Cook - Early Weekend and Stat Coverage." Exhibit 3 covers a period from Nove~er 11, 1990 to May 20, 1991. Opposite each day is the name of the Employee responsible for taking calls and replacing shifts from 6 a.m. to 9:15 a.m. on Saturdays, Sundays and statutory holidays. The designated person is either the Grievor or Ron St. Onge, the other Head Cook classified as a Cook 3. On occasion the person shown was one of the Cook 2's who relieves when a Cook 3 was absent. According to this list, there were 18 early calls received 15 between the noted times. Although the Grievor stated that he had not seen Exhibit 3 until it was shown to him at the hearing, he did not take issue with its accuracy. Evidence of Esther Saunders 1, Ms. Saunders has been the Food Service Administrator for approximately 18 years. She graduated with a B.A. degree from Goshen College, in Indiana, and interned as a dietician at the University of Washington. As part of iher duties she supervises the Head Chef. 2. The memorandum of November 6, 1990 was written to announce changes brought about by a cut-back resulting from financial exigencies. The call-in procedure change relating to Saturdays, Sundays and stat days required all Food Service staff to call the kitchen extension where the Head Cook was located instead of the Food Service Supervisor number or pager between 6 a.m. and 9:15 a.m. According to Ms. Saunders, the part of the memorandum with respect to "Monday to Friday" did not implement any change in the call-in procedure. 3. Because the meal production line starts at 6:15 a.m. it is necessary to know which employees will'be present at work at 6 a.m. so that the Head Cook on duty can shift the staff complement around to accommodate the absence of an employee or employees. According to Ms. Saunders, Food Service staff are permitted to, and sometimes do, shift staff on their own to achieve the necessary accommodation. ARGUMENT OF THE UNION 1. The Grievor was the highest ranking employee on duty in the food service area for a significant periods of time, and was the person looked upon by Food Service Helpers to make decisions when a Food Service Supervisor was not available. 2. We were asked to find that there had been a redistribution of responsibilities, with certain responsibilities being taken from the Food Service Supervisors and added to those of the the Grievor. We were asked to find that the redistribution of duties, with the call-in procedure change being the most significant example, demonstrated that the Grievor was required to assume significant additional duties and responsibilities to those set out in the class standard to which he had been assignea. 3. The additional duties and responsibilities of the Grievor relied upon included the reassignment of personnel who had reported for work in order to accommodate the absence of an employee, and making decisions as to which employee to call in to replace an absent one. The Grievor was said to have to make quick decisions as to which positions were critical and which did not have to be 17 filled immediately. These duties and responsibilities, du[ring the critical time, had previously been performed by Food Service Supervisors, and the Grievor's evidence was that these duties took up approximately 17.75 per cent of his total work time (although only 11.74 per cent of his weekend and stat days time). 4. We were asked to find that as the Grievor was at work from about 5 a.m., to the knowledge of management, and that employees were aware that he could be called from that time, so they could notify the Employer, through him, when they could not attend or would be late for work. Management was said to be aware of the fact that the Grievor would have t© "juggle" the complement of employees in order to allow a shift to function efficiently, and that this responsibility commenced at around 5 a.m. when the Grievor arrived at work. 5. We were asked to take into consideration the Grievor's carrying out of the supervisory function, above referred to, during the week, from Monday to Friday between 5 a.m. and 6 a.m. when a Food Service supervisor would not be present, as well as during the times set out in Ms. Saunders memorandum of November 6, 1:990. 6. Counsel for the Union referred to Boyle et al., 675/85 (Brandt). In that case, the grievors were classified as Renewal Processing Clerks and were employed in the Renewal Processing Section of the Ministry of Transportation and Communications 18 located in Kingston Ontario. They were classified as Clerk 3 General and filed grievances claiming that the position was improperly classified and requested that they be reclassified at the Clerk 4 General level. The grievance arose as a result of a number of functions being added to the job beginning in May of 1983, and by early 1985 the incumbents in the position began to seek a reclassification of their positions. By June of 1985, the grievors "were all qualified to perform all of the Clerk 4 functions and could be called upon by their employer to perform all of them. That call could require them to rotate between the functions or it could involve an assignment to a specific function." (Boyle at pp.10-11) When the job was split on October of 1985, some of the duties became level 4 and some remained at level 3 in the classification scheme. At p.ll of Boyle, the Board stated: Does the fact that the grievors were performing some level 4 functions from early January, 1984 on justify a re-classification of the position as a whole. What about the fact that they were also performing functions which clearly are level 4 functions? Is it necessary for us to examine the degree to which level 3 and level 4 functions were performed and attempt a quantitative analysis? We do not think it is. The key lies 'in the fact that, while it may be the case that some of the grievors might actually only be performing level 3 functions, they 19 could at any time be called upon by their employer to perform level 4 functions. At p.13 of Boyle, the Board stated: To adopt what might be an inept analogy: a fireman remains a fireman even though he is not called on to put out fires. If he is at the call of his employer to put out fires as and when they occur that is sufficient° Here the employer wanted to have greater flexibility in being able to assign different employees to different tasks as and when that may be necessary. That necessitated a training of the employees in the different tasks. Once those employees became trained in all of the functions they became liable to be called upon by their employer to perform them properly. The extent to which they may have actually been called upon to perform them is, in our opinion, not relevant to the question of the classification of their positions. 7. Counsel for the Union also referred to Beach, 816/86 <Fisher). This was a classification grievance, and the Board stated at pp.1- 3: This Board heard e~tensive evidence as to what sort of tasks the grievor performed in the course of his duties. Suffice it to say that the grievor clearly performed the sort.of duties as contemplated by the Class Standard but that he also performed other significant duties not covered in the Class Standard. The first duty performed by the grievor that is not covered by the Class Standard relates to the grievor's involvement in the design and modification of existing equipment. The grievor and his supervisor botlh agreed that he spends 5% - 10% of his time performing this job. The Class Standard talks of "installation, adjustment, repair and maintenance of electronic devices." This implies a more basic application of skills then to design and modify a piece of equipment. In essence, tlhe Class Standard duties are typical skilled journeyman duties, while the added creative elements of design and modification put the grievor more into a designer or technologist type of categgry. This duty is also an ongoing one which the grievor has performed throughout his employment with the Ministry commencing in 1978. 2O The second duty performed by the grievor outside the Class Standard is in the area of purchasing. While it may well be within the ambit of a journeyman to do some purchasing, this would tend to be of a repetitive nature when the choosing is from a pre-selected group of items (i.e. from a government approved catalog). The grievor's duties however go well beyond this. He actively researches products, obtains literature directly from suppliers~ maintains manuals and compares prices. He in effect acts as his own purchasing agent. It is true that he needs the approval of his direct supervisor, Mr. Brian Pelt, to make these purchases, but Mr. Pelt testified that he relies completely on the technical skill of the grievor and routinely approves the grievor's recommendations. The third area in which the grievor's duties fall outside the Class Standard is in the area of external contacts. One would not normally expect a journeyman to have extensive external contacts as the focus of her job is to concentrate on the hands-on aspect of the skilled technical duties. The grievor however maintains regular and fairly extensive external contacts including attending trade shows, dealing with salespersons, and corresponding with suppliers. The mere fact that the duties as contemplated by the Class Standard are in fact performed by the grievor does not in itself mean that the Class Standard is appropriate where the evidence reveals that there are further core duties also performed by the grievor which are not covered by the Class Standard. For example, one could argue that the duties of a typical labour lawyer would include the following: "These employees read letters, prepare correspondence, make coffee, hold meetings, and talk on the phone extensively". However, only a complete cynic would say that this job description properly sets out the complete core duties of a typical labour lawyer. This concept was more eloquently put in the case of D~nning (1574/88 Gorsky) at page 17. "I cannot conclude that because the bulk of the grievor's duties and responsibilities fall within the Class Standard means that he is properly classified, what is important is that he 'could be called upon at any time by (the) employer to perform (the) functions' beyond those covered b~ the Class Standard (see Boyle 675/85 [Brandt] at pg. 11 and at p 12-13)." (Emphasis in Bea_~h) 21 8. Counsel for the Union relied on Beach as an example of a case where the percentage of time spent in performing duties not covered by the class standard was not relevant and submitted that it was the significance of the duties and not the time involved that must be considered. 9. Counsel for the Union also relied upon the fact that the Grievor was required to supervise the:provision of meals for about 700 persons. It was his position that the Cook 3 class standard was drafted with the number of persons for whom meals were provided in mind. Counsel pointed out that the class standard differentiated between two types of positions, one with respect to an institution where meals were provided for between one hundred and three hundred persons (paragraph 2), and the other with. respect to a smaller facility involving the serving of meals for "about 40 to 100 persons." It was submitted that the class standard did not deal with the kind of institution where the Grievor worked, where approximately 700 persons were server meals. 9. We were asked to find that para. 1 of the class standard was "generic" and applicable to the positions covered in paragraphs 2 and 3. 10. Counsel for the Union acknowledged that if the Grievor fell within paragraphs 2 or 3, then para. 1 would also apply to ihim. We were asked to find that because meals were prepared for 22 oapproximatu] ey 700 persons, the Grievor' s supervisory responsibilities were greater than those provided for in the class standard. ARGUMENT OF THE EMPLOYER 1. It was the position of the Employer that the Grievor's call-in responsibilities, being for 3.25 hours on weekends, took up 6.5 hours for each 80 hour shift schedule, which amounted to 8.1 per cent of his working time. To this should be added the 5.5 statutory holidays when he also had call-in and shift replacement responsibilities. This would add 17.88 hours of call-in and shift replacement responsibility annualy. 2. It was also submitted that the Gri~vor had no supervisory responsibility between 5 and 6 a.m., as alleged, and was not expected to assume any, nor was he expected to take call-ins between 5 and 6 a.m., as is demonstrated by an examination of the memorandum of November 6, 1990. 3. It was also submitted that such "supervision" as the Grievor was required to carry out relating to kitchen help is provided for in the first paragraph in the Cook 3 class definition: "... supervise the production of meals ... as group leader of a small number of subordinate cooks [and] other kitchen help .... " 4. The November 6, 1990 memo was regarded as only making insignificant changes to the Grievor's prior duties which required less than ten per cent of his time because he was only on duty, for the relevant period, for 31.5 days, and calls are received[ on only one third of those days. 5. The responsibility of the Grievor in call-in situations was said to be largely of a minor clerical nature. He was said to be furnished with a call-in list, which showed the employees who were available for recall and their area of experience. Ail the Grievor had to do was proceed down the list making calls in a predetermined pattern. This was absent any disciplinary or supervisory responsibility. 6. It was submitted, in response to the Union's second argument, that the reference, in the second and .third paragraphs of the class standard, to the number of persons for whom meals were provided, was irrelevant. We were asked to find that the significant portions of paragraphs two and three related to the kinds of duties and responsibilities of a Cook 3 in two different kinds of institutions. Paragraph 2 was referable to a larger institution than paragraph 1. We were also asked to consider the fact 'that the number of persons in the institution on weekends and statutory holidays was substantially lower than would be the case on week days. 24 7. Reference was ~ade to Elr~ck et al., 10/85 etc. (Dissanayake), where the Board stated at p.9: The Board has held that in order to succeed, a grievor must persuade the Board on a balance of probabilities, that his "significant job duties" (Re Hilson, 535/84, Roberts) or "the core of the duties" (Re Freeman, 395/81, Verity) are beyond the duties assigned to his present classification. It is important to note that the role of the Board is not to examine the higher classification claimed, to see if the grievors' positions equally fit that higher classification. Before reaching that step, the Board must first satisfy itself that the position does not reasonably fit the existing classification. We were asked to find that the only addition to the Grievor's duties that could be considered arose out of the November 6, 1990 memorandum. It was submitted that we were restricted to considering the call-in and shift replacement functions on weekends and statutory holidays between 6:00 a.m. and 9:15 a.m., and that by their nature and frequency they did not alter the fact that the "significant job duties" or "the core of the duties" of the Grievor were within.those assigned to his present classification. It was submitted that the very small amount of time devoted by the Grievor to the call-in function was insufficient to demonstrate that his "significant job duties" or his "core of ... duties" were beyond the duties assigned to his present classification. 8. Reference was also made to Anderson et al., 497/85 (Robert~), where the Board stated, at pp.6-7: We accept that Class Standards must, by nature, be general in scope, and there will be significant variations in the concentration of duties of employees who are properly classified thereunder. 9. It was submitted that even if the Grievor furnished guidance to Food Service staff Helpers between 6 a.m. and 9:15 a.m. on weekends and stat days, this did not amount to either supervisory authority or responsibility. Counsel for the Employer referred to Noon, 111/81 (McLaren)o In that case, the grievor, who, since May of 1977, was a Recreation and Craft Instructor II at a centre for the developmentally and physically handicapped, had duties involving teaching swimming and related skills to members of the centre and was also required to act as a lifeguard and perform duties related to the maintenance and operation of the swimming pool. On October 31, 1980, the Athletic Supervisor of the facility posted a memorandum that during his absence the grievor and another employee would be in charge of the pool and that the grievor would be in charge from 4:30 p.m. until 9:3:0 p.m. At the time of the posting of the memorandum the grievor normally worked a shift commencing at 1 p.m. and ending at 9:30 p.m. ~e was therefore "in charge" for five hours of his shift under the terms of the memorandum. The grievor alleged that during the time that he was "in effect, doing the supervisor's job" (p.3) he was temporarily assigned within the meaning of art. 6.t of the 26 collective agreement, as it then existed, and was entitled to payment at the higher classification level of his supervisor. Although the Board found that there was no doubt that the grievor performed some of the tasks of the supervisor during the five hour period and took on additional responsibility during that period: "... what he is required to do does not amount to {aking even the central aspects of the supervisory position." (at pp.3- 4.) The Board also found, at p.4: "The responsibility to deal with matters when unable to contact supervision does not amount to having supervisory authority and responsibility. The grievor is not exercising the core of the responsibilities of the supervisor." The Board noted, at p.5, that: "... the task of scheduling vacation, dealing with other forms of compensation, committee meetings and other decision making tasks are never required of the Grievor during the five hour period." 10. Reference was also made to Tomassoni et al., 807/87 etc. (Verity). There, 71 grievors, who worked in various Ministry of Community & Social Services offices throughout Ontario as Vocational Rehabilitation Counsellors, alleged improper classification as Social Worker 2. The grievances were based on an allegation that the grievors performed substantially similar duties to Employee Counsellors employed by the Ministry of Government 27 Services who were classified within the management compensation plan as A.M.16 Administrative Module. Counsel for the union in that case acknowledged 'that the grievors did not perform management consultin9 services which constituted ten per cent of the Employee Counsellor's job. The Bdard, at p.18, stated that: "a ten' per cent difference in jobs does not demonstrate substantial similarity." This finding was used to support the argument of the Employer, in the case before us, that the small addition to the responsibilities of the Grievor was insufficient to make his classification as a Cook 3 inappropriate. 11. Reference was also made to Boileau, 724/88 (Kirkwood), where the Board stated at p.8: The case of OPSEU (Anderson et al. ) and The Crown in Right of Ontario (Ministry of Natural Resources) (G.S.B.#30497/85) (R.J. Roberts) explores the premise upon which the class standards are based, and finds that by their nature, they are general in scope and finds that there will be significant variations in the concentrations of the duties which the employees who are properly classified do. However, when there has been a substantial difference in the actual work performed and the description of the job a re-classification will be ordered. ~ 12. Reference was also made to the following statement at p.10 of the Boileau case: The grie¥or testified that he was the only person responsible for pest control in.the area. However, the work plan which was presented to the Board also indicated that his superior John Wilson had responsibility for pest control. Although this task' is not recognized in the job 28 classification nor in the job specification, there is insufficient evidence to find that this duty forms a substantial portion of his work, which would make his job classification obsolete. In the Boileau case, the position of the union was that the grievor was entitled to be reclassified because there was "such a high proportion of the duties not covered by the class standard (p.4;. DISCUSSION 1. Are Food Service Helpers "other kitchen help"? One of the positions taken on behalf of the Employer was that even if the Grievor had the responsibilities with respect to the superivsion of "non-cooking personnel," as .set out in paragraph eight of the Grievor's statement, which was not admitted, then this responsibility was said to be included in the Cook 3 class standard, where the class is required to "act as group leader of a small numer of subordinate cooks [and] other kitchen help .... " The Employer regarded all Food Service Helpers as falling within the category of "other kitchen help," and, as such, part of the group to be supervised by the Grievor as a group leader designated in the class standard. We were not furnished with the class standards with respect to either the Food Service Supervisor or the Food Service Helper 29 classifications, which might have been of assistance in resolving the issue of whether the Food Service Helpers were "kitchen help." In the absence of this assistance, we have to rely on the evidence, in particular the agreed to evidence that most of the Food Service Helpers were not involved in food preparation in the kitchen but in the putting together of meals on trays outside of the kitchen and with the distribution of meals to residents. In the context of the Cook 3 class standard, and in the light of the evidence of what the large majority of Food Service Helpers do and where they dio it, we cannot regard them as "kitchen helP." This conclusion is also supported by the fact that it was agreed that they are supervised by a Food Service Supervisor to whom a Cook 3 does not report. In the Preamble to the Cook Series it is provided that: All employees in positions classified as Cook 2 or higher may be required to train and instruct junior cooks [and] kitchen helpers ... in cooking, baking, meatcutting, kitchen operation, sanitation, food preparation and serving etc." We do not regard this reference as intending to treat Food Service Helpers as "kitchen helpers." In the absence of other evidence, such as is above referred to, "kitchen helpers" help in the kitchen; Although they may sometimes assist in "serving etc." their core functions appear to be carried out in the kitchen, which is not the case for Food Service Helpers. 2. Is The Grievor required to supervise Food Service Helpers? 30 it is alleged, in paragraph 8 of the Grievor's Statement, that as a result of the implementation of the November 6, 1990 memorandum, the Grievor's "position [was] expanded to include duties and responsibilities not anticipated by the class standard. Specifically, the supervision of non-cooking personnel .... "In paragraph 7 of the Grievor's Statement, the supervisory duties "previously carried out by Food Service Supervisors," in addition to "the call-in and personnel replacement duties of the Food Services Supervisors," are identified as including: "receiving and responding to requests for direction from Food Service Helpers, clarifying ambiguous or Unclear instructions to Food Service ~elpers and generally supervising the Food Service Helpers during the newly mandated absence of Food Service Supervisors." The evidence disclosed that while the Grievor may have assumed the above-noted responsibilities, they were not assigned to him in any formal way. They are not assigned in the memorandum of November 6, 1990, and there was no evidence that they were ever assigned to him orally, nor are they contained in the Position Specification which, on March 8, 1991, added the call-in duty, It was the position of the Employer that the Grievor had never been assigned the responsibility of supervising Food Service Helpers, as alleged, and there was no evidence to show that management was aware of or had tolerated the Grievor's assuming the supervisory duties described in his Statement with repect to Food Service Helpers. There was no evidence to show that the Grievor had ever been expressly or impliedly given the responsibility of supervising Food Service ~elpers. From Ms. Saunders evidence we gathered that Food Service Helpers frequently solve work related difficulties cooperatively, the example given being the reassignment of! duties, without external direction, to accomodate the absence of an employee. There was no evidence to establish that the representatives of the Employer were aware of the Grievor assuming the supervisory duties refered to in his Statement, and we are not stisfied that they must have known that this was the case. In the circumstances, we are unable to conclude the Grievor had this responsibility assigned to him, or that he could be disciplined for not carrying it out, and we cannot consider it as a factor in determining whether he has been misclassified. 3. The Extent of the Duty Imposed on the Grievor to Take Calls and Replace Shifts The position taken on behalf ofi the Grievor at the hearing expanded on that taken in his Statemet in a number of areas. One of these related to a claim that his duties had expanded in that he was required to take calls from ,employees and arrange for replacements from the time of his arrival at 5:00 a.m. in addition 32 to his call-in and replacement responsibilities on Saturdays, Sundays and statutory holidays, as set-out in the memorandum of November 6, 1990. There was no evidence to establish that the call-in and shift replacement duties imposed on the Grievor had ever been expressly expanded beyond those set-out in the memorandum of November 6: "to take calls and replace shifts from 0600 hours to 0915 hours for the early shift only" on Saturdays,Sundays and statutory holidays. The Food Service Staff were, by the terms of the memorandum, required to call a Head Cook "at 0600 hours." The position of the Employer is that the responsibility of the Grievor with respect to taking calls and replacing shifts has been defined by the terms of the memorandum, and he is not required or expected to depart form its terms. Management is entitled to establish such reporting and replacement regimen as it wishes, even if it may turn out to be inneficent. There was no evidence to demonstrate that the Grievor was required to take calls or attempt to replace shifts otherwise than in accordance with the memorandum of November 6. Until such time as management assigns to him the responsibility with respect to taking calls and replacing shifts before 6:00 a.m., he is neither required to do so, nor can he be disciplined for failing to do so. His having voluntarily assumed this responsibility a.m., while commendable, cannot be viewed as evidence of management having added it to his other duties and responsibilities. In the 33 circumstances, it cannot be considered i~ determining whether he is improperly classified. 4. The Effect of the Memorandum of November 6,1990 We find that the responsibility imposed on the Gr'ievor to "take calls and replace shifts "from ~6:00 a.m. to 9:15 a.m. on the early shift on "Saturday, Sunday and stat days" by the November 6, 1990, memorandum, while it was an important one, was, nevertheless, of a relatively simple and routine clerical nature. The answering of the phone and the receiving and recording of the message cannot be otherwise regarded. The replacement of shifts might, require some juggling of the staff at work and the calling in of a replacement in some circumstances. Juggling staff was sometimes done be the staff itself, and did not appear to be a very complex matter. Calling in replacement staff from the list furnished to the Grievor could be accomplished by calling the persons on the list shown to have the required skills by proceeding down the list alphabetically. Although the Grievor testified that he frequently departed from this procedure and that. he had to employ judgment in carrying out this task, because there were other considerations, he did not furnish us with any exampleslto support his position. On the evidence, we conclude that this duty was of a relatively simple and straightforward clerical nature and that it could be carried out following the procedure dictated by the form of the call-in list. 34 Unlike the cases relied upon by counsel for the Union, the duties imposed by the memorandum of November 6, 1990, do not represent significant core functions. In the circumstances, we cannot regard them as having sufficient significance so as to cause us to conclude that the Grievor is misclassifed. 5. The Effect of the Number of Persons for whom Meals are Provided Although it was not referred to in the Grievor's Statement, counsel for the Union relied on the fact that the Grievor was in a food service operation responsible for providing meals for well in excess of the 300 person limit set-out in paragraph two of the Cook 3 Class Standard, in this case 700 persons. The argument of counsel was that, in an institution where many more persons were served than was provided for in the class standard, a cook, with the duties and responsibilities of the Grievor, would have more responsibility arising out of the existence of a larger complement of staff to supervise and because the preparation of a larger number of meals would create more problems to be solved. From the evidence, it appeared that the Grievor was responsible for supervising two subordinate cooks and only a small number of kitchen help. The evidence did not disclose that there was an effect on the Grievor's group leadership responsibilities 35 because the operation called for the provision of meals for a population above the limit referred to. Although it was suggested that the larger number of persons for whom meals were provided would necessarily increase the responsibility for supervising the production of meals, this assertion was unsupported by evidence. It may be that when the difference in the number of persons, for whom meals are provided reaches a particular level there is a difference in responsibility between what the Grievor is expected to do and the duties and responsibilities set out in the class!standard. In the absence of supporting evidence, we cannot draw such a conclusion in t~.is case. CONCLUSION 1. On the evidence adduced and agreed to, we conclude 'that the Grievor is properly classified as a Cook 3. Although his duties and responsibilities do not represent a perfect fit with those of the Cook 3 class standard, they fit Well enough, amd they do not depart from those set out in the class standard to such an extent as to warrant the issuance of an order that he be reclassifed. 2. Because of our findings, we do not express any view as to what the situation would be if the Employer had, in addition to the responsibilities to "take calls and replace shifts" between 6:00 a.m. ~and 9:15 a.m. on Saturdays, Sundays and statutory holidays, 36 assigned to the Grievor all of the other duties and responsibilities referred to by him. Nor do we express any view as to what the situation would be if the evidence had disclosed, not only a quantitative difference between acting as a group leader in the provision of meals for 100 to 300 persons, as is found in the class standard, and the Grievor's responsibility to provide meals for 700 persons, but a qualitative difference as well, sufficient to demonstrate that his duties and responsibilities require a higher level of skill than appears to be called for under the Cook 3 class standard. DECISION For all of the above reasons, the grievance is denied. 37 DATED at Toronto, this 2~ay of February , 1993 M.R. Gorsky Vice-Chairperson I Dissent (Dissent Attached) P. K1ym Member R. Scott Member GSB 348/91 OPSEU (Woodrow) and Ministry of Community & Social Servi:ces ' · DISSENT OF UNION NOMINEE With great respect to the conclusions reached by the other members of the Panel, I find I must dissent from the majority decision. The m~jority decision finds that Food Service Helpers are not "other kitchen help" and the class standard for Cook 3 does not include them as persons, supervised by the Cook 3's. But, having made this finding, one has to ask - who does supervise these Food Service Helpers between 6.00 a.m. and 9.15 a.m. on Saturdays, Sundays ~nd Statutory Holidays? The evidence before us was that on weekends and stat-day mornings there would be 15 Food Service Helpers during this period. On weekdays, Monday to Friday, there would be 14 Food Service Helpers during this ~eriod. On weekdays, the employer had a Food Service Supervisor assigned from 6.00 a.m. onward who would supervise these 14 Food Service Helpers. The majority decision in effect concludes that these 15 Food Service Helpers supervise themselves on weekends and stat-days for 3~ hours from 6.00 a.m. to 9.15 a.m. without anyone overseeing their work. I find this to be an unrealistic conclusion in light of the total evidence before us and particularly when one considers the supervision provided for a similar number of workers during this same period Monday to Friday. Somebody supervises these Food Service Helpers on weekends and stat-days and that person is obviously the Cook 3. The majority concludes that these supervisory responsibilities were not specifically assigned to the Cook 3's in the November 6, 1990 memorandum and that the Cook 3 took on this responsibility on his own. They further conclude that there was no evidence that management was aware that the Cook 3 was performing this responsibility. Again, I find this to be an absolutely unrealistic conclusion. We had uncontradicted evidence that the line had to be properly staffed to operate with reasonable efficiency. If somebody was missing, assign- ments had to be re-arranged to plug the gap till replacements arrived after being called in by the Cook 3. The grievor testified that he made these decisions and assignments of Food Service Helpers. It only makes sense to conclude that the grievor did this supervisory work and that management was aware that he did[ it and really expected him to do it. It takes a great stretch of credi- bility to conclude that management expected the 15 Food Service Helpers to work unsupervised during this period and to make all the decisions required on a collegial basis on their own. If that were probable, or possible, then they would seem to be wasting money in not letting the Food Service Helpers supervise themselves during a similar period on Monday to Friday. The fact that this supervisory responsibility was not speci- fically included in the. November 6, 1990 memorandum is irrelevant. The memorandum dealt strictly with call-in procedures and nothing else. I find it impossible to conclude that management did not believe supervision of the Food ServiCe Helpers was required and that this would be provided by the Cook 3. On the basis of the above grounds alone, I would grant the grievance and issue a Berry type order to have the grievor properly classified. Since the supervisory duties performed would be sufficient grounds for reclassification, I have not commented on the other two grounds raised - i.e.: calling-in Food Service Helpers and the class standard not applying where.meals are provided t~o more than 300 persons. These could be readily covered in a new class standard.