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HomeMy WebLinkAbout1991-0731.Dingwall.92-07-02 ONTARIO EMPLOYEs DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET W~T, SUITE 2100, TORONTO, ONTARIO. M5G [Z8 TELEPHONE/T~LEPHONE 180, RUE OUNDAS OUEST~ BU~EAu 2TO0, TORONTO (ONTARIOJ, MSG ~Z8 FACSI~ILE/TEL~CO~E . 731/91 IN THE MATTER OF AN ARBITRATION Un4er THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEHENT BOARD BETWEEN OPSEU (Dingwall) ~rievor - and - The Crown in Right of Ontario (Ministry of Community & Social Services) Employer BEFORE: W. Kaplan Vice-Chairperson L. Robbins Member A. Merritt Member FOR THE M. Doyle GRIEVOR Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors FOR THE K. Renison EMPLOYER Counsel Legal Services Branch Ministry of Community & Social Services HEARING April 30, 1992 Introduction By a grievance dated April 29, 1991, Gerry Dingwall, a Helper, Food Services employed at the Huronia Regional Centre in Orillia, Ontario, grieves that he is improperly classified and seeks a Berry Order by way of remedy. In brief, it was the union's position that the grievor's class standard did not accurately describe his duties and responsibilities. Moreover, it was the union's position that the grievor's job required him, among other things, to perform singularly demanding physical work, and that this requirement took him out of the Helper, Food Services Class Standard. The employer took the position that the grievor was properly classified and that his duties and responsibilities were clearly envisaged by his class standard in that his core functions are encompassed by that standard. Before turning to the evidence, it is useful to set out the class standard: Helper, Food Services Class Definition: Employees in positions allocated to this class perform a variety of physically demanding, routine, manual tasks relating to the preparation and serving of food and the maintenance of cleanliness in kitchen areas of an institution. Job instructions are usually simple, specific and complete. The work is usually checked for acceptable standards both during progress and on completion. These employees wash dishes, utensils and equipment, and clean working areas. They scrub floors, food trucks and garbage pails. They prepare vegetables, cut bread and set tables as instructed. They receive and deliver supplies of food, transfer food to serving tables, and assist in serving food. In some positions, they may receive elementary training and perform simple tasks related to cooking, baking, 3 butchering or pasteuri.zing processes. In all positions, they may instruct patient or.inmate helpers in similar duties. Qualifications: 1. Grade 8 education or its equivalent. 2. Preferably some previous work experience. 3. Ability to understand and to follow specific written and verbal instructions; ability to instruct patient or inmate helpers in simple tasks as required; willingness to co-operate; cleanliness; ability to lift and push moderately heavy loads; good physical and mental health. The Evidence The grievor testified on his own behalf. The Huronia Regional Centre (the "Centre") is a residential facility with approximately 700 residents, who with staff receive three meals a day. The grievor has been employed'at the Centre as a Helper, Food Services for approximately eighteen years. The grievor works Monday to Friday and his normal working hours are 6:00 a.m. to 2:00 p.m. On Mondays, however, the grievor must arrive at work at 5:00 a.m. in order to clean up from the weekend, a, nd perform other tasks not performed by the part-time helpers who work weekend shifts only. When the grievor arrives at work, he signs in and changes into whites. He then goes to the B cafeteria and determines whether or not there is enough milk in the two refrigerators for the breakfast meal. If there is not enough milk he brings some over from the milk refrigerator which is located some distance away. The Centre requires a variety of dairy products, and they are all differently packaged. For instance, the diet milk comes in individual containers, some 48 containers per plastic case. There are also cases containing litres of milk, and there are cases containing bulk milk, that is to say, a big bag of milk that is put into a dispenser, Each of these cases weighs approximately forty to fifty pounds. The grievor spends a considerable amount of time in milk delivery. He is responsible for receiving the milk at the Centre and for distributing it to various locations throughout the grounds. After he has checked the B cafeteria to determine whether or not there is enough milk for the first meal (and has supplied additional milk as necessary), the grievor returns to the stores area where the milk is kept. At about this time, the milk transport arrives, and when it does the grievor is responsible.for unloading it. The amount of milk delivered each day varies, but some days are heavier than others. On the heavy days as many as 120 cases or more of the three types of milk may arrive at the facility. On other days, the milk delivery appears to be approximately half this amount. A substantial amount of other dairy products may arrive as well, such as yogurt. These:other dairy products come in smaller packages. The grievor testified about the delivery procedures. Basically, the delivery truck backs up to a milk chute. The milk is sent down the chute into the refrigerator, where the grievor picks it up and puts iton a skid. The skid is three feet square, and it has a handle and small wheels. As the grievor is loading the milk on the skid he must ensure that he does so in a way that brings the old milk forward. The grievor piles twenty cases of milk on the skid, four on each level, five levels high. To load the milk on the highest levefs, the grievor must lift the cases quite high. After the skid is loaded it must be pushed into place, and the grievor testified that given the weight involved and the design of the skid it was somewhat tricky to push it around. After the grievor has unloaded the milk and rotated the stock, he takes the invoice to a clerk and advises him or her whether or 'not everything indicated arrived. When this task is completed, the grievor works on vegetables. On Mondays, Wednesdays and Fridays, the grievor must unload the fresh vegetables when they arrive at the Centre, rotating the stock as he does so. The grievor also makes sure that there is no spoilage, and if there is, he reports it to the Chef. The grievor also has daily responsibilities with respect to bringing vegetables to the kitchen. He checks the menu for the day, determines what vegetables are required and brings them into the kitchen. If celery is required, the grievor may bring down a case or two, each of which weighs approximately forty to forty-five pounds. On average, the grievor brings down seven to eight cases of fresh vegetables every day. Bags of frozen vegetables, which the grievor also brings down from the freezer, weigh approximately thirty pounds. On average, some two hundred pounds of frozen vegetables are required for each meal. The grievor loads these vegetables onto a truck and has to push them to the kitchen on a ramp. The grievor has some responsibility for vegetable preparation, and depending on the menu, may clean and chop or dice the vegetables. The grievor may also grate cheese and cook potatoes. If the kitchen requires milk for a milk-based soup, for example, the grievor will deliver the necessary number of cases. The grievor uses various pieces of machinery in performing these tasks, which he performs at different times over the course of his shift. In addition to these duties, the grievor has some responsibility for delivering milk and other dairy products throughout the Centre. For example, he is caIled upon to bring milk to the infirmary. This requires him to load the supplies on a flat truck. He then pushes the flat truck onto a truck that is driven to the infirmary. At the infirmary, the grievor pushes the fiat truck up a ramp into the infirmary and loads it into the refrigerator, rotating the milk at the same time. Other deliveries require more effort because there is no ramp, in which case the cases of milk have to be lifted by hand onto the truck and lifted by hand off the truck when it arrives at its destination. By and large, the truck drivers do not assist the grievor in loading and unloading. The grievor is also called upon to pick up loads of dirty dishes at one building at the Centre and load them into the truck. The grievor also delivers ice cream once per week to different buildings at the Centre. Cafeteria B requires some seventeen to eighteen boxes of ice cream, each of which weighs seven to eight pounds. Other buildings receive deliveries of approximately eight boxes, all of which the grievor has to load and unload. Once or twice per week, the grievor loads and unloads boxes of groceries at one or more buildings at the Centre, each of which weighs approximately ten to fifteen pounds. The grievor testified that he spends the better part of each day loading and unloading heavy boxes, and estimated that he spends approximately three-and-a-half hours of each shift lifting and pushing. He also reviewed his position specification with the Board and indicated those tasks which he performed and those which he did not. The grievor testified that he assists the clerks in ordering milk by advising them what is needed, and he also provides similar information with respect to frozen vegetables. The grievor keeps his different work areas clean, and he testified that some of his work is checked, but much of it is not. ~n cross-examination, the grievor testified that he also works for approximately ten minutes two days per week on the "clean end" of the dishwashing machine. He also further expanded his evidence on what happens to ice cream and the groceries when they are delivered to different buildings. While the grievor physically delivers these productsl it appears as if someone else has the responsibility for putting them away. The grievor also told the Board that posted sheets indicated exactly what vegetables were required for each meal, and whether or not they should be diced or sliced. Ms. Marjory Simcoe testified for the employer. She is the Food Supervisor and has responsibility for more than twenty Helpers, Food Services, including the grievor. Ms. Simcoe meets with the grievor everyday, and has informal contact with him throughout the day. Ms. Simcoe told the Board that afl food must be rotated, and that all Helpers, Food Services are responsible for this job. Ms. Simcoe also testified that other Helpers advise the clerks of stock levels. Ms. Simcoe testified that she would tell the grievor if he was doing something wrong. However, he has been doing the job for a long time and he knows what he is doing. In cross-examination, Ms. Simcoe testified that she was not aware of anyone being hurt on the grievor's job before the grievor started doing it, nor was she aware of any Worker's Compensation Claims made by persons holding this job prior to the grievor. Ms. Simcoe testified that she would only check the grievor's work if she received a complaint, because the grievor is very familiar with his duties. Ms. Simcoe agreed that no other Helper had to lift as much as the grievor. Mr. Jack Ostertag, the head chef, also testified on behalf of the employer. Mr. Ostertag directs the grievor in his activities and also has overall responsibility for ordering supplies and planning the menu. If the grievor is required to prepare vegetables he must do so according to established guidelines that are both written and specific. Menus are planned weeks in advance, and each day the grievor knows what he has to do. In cross- examination, Mr. Ostertag testified that he had no knowledge of any injuries suffered by persons occupying the grievor's position because when he started the job, the grievor was already working in his present position. The evidence having concluded, the matter proceeded to argument. Union Argument Counsel argued that this was an appropriate case for reclassification, and she focused her attention on ~he extent to which the grievor was required to lift and push heavy objects. Counsel noted that the grievor's uncontradicted evidence was to the effect that he lifted and pushed heavy objects for three- and-a-half-hours a day, and that this was his core duty. Counsel calculated that a fully loaded pile of milk (which the grievor would have loaded), would weigh between 800 and 1000 pounds, and that the grievor would have to push it from one point to another. Counsel also reviewed the various other jobs the grievor performed, and the different weights that he was regularly required to lift. , Counsel observed that no other Helper was required to lift and push these heavy loads, and suggested that the reason was because this job was not properly part of the Helper, Food Services position. Counsel referred the Board to the grievor's position specification and pointed out that many of the duties on that list were not performed by the grievor. Counse~ conceded that the grievor's class standard referred to employees performing "physically demanding" jobs, but suggested that this was modified by the qualifications section, which stated "moderately heavy loads." In counsel's view, the various cases and other materials the grievor loaded and unloaded throughout the day could not be described as moderately heavY. Certainly, a pile containing 800 to 1000 pounds of milk, which the grievor was regularly required to move, could only be described, in counsel's submission, as "heavy." Very simply, in counsel's view, the heavy lifting and pushing for a significant part of each working day took the grievor out of his assigned class standard. Although counsel advanced a number of subsidiary reasons in favour of reclassification such as the fact that the grievor was largely self-directed, that he participated in tf~e ordering of supplies and that he had little supervision, counsel argued that the heavy Ioading and pushing for the better part of each day was sufficient to support a finding that the grievor was improperly classified. Accordingly, counsel argued that the Board should grant a Berry Order. In support of this proposition, counsel referred to a number of cases including Beach 816/86 (Fisher) and Cardno et al 530/86 (Stewart). Employer Argument Employer counsel took the position that the grievor was properly classified and that his job could be placed within the parameters of the class standard. The employer agreed that the grievor spent approximately three-and-a-half hours per day lifting milk and other supplies. Counsel suggested, however, that this was part of what the Helper, Food Services position was all about. The reason the grievor was spending this time lifting and transporting supplies was to further the aims of food preparation. Moreover, in counsel's submission, the class standard specifically anticipated that some Helpers would be required to do "physically demanding" work. The grievor was doing such work, and it was, in counsel's view, properly described as "moderately heavy." Counsel noted that the grievor also spent considerable time preparing vegetables, and in doing so he followed specific directions for the preparation of food. All of the grievor's duties were, counsel argued directly related one way or another to helping in food preparation. In this regard, counsel argued that the class standard clearly applied to the grievor and she pointed out that although the work was physically demanding, many of the grievor's jobs were routine, his job instructions were simple, specific and complete, and his work was checked for progress. The fact that the grievor had been in the position for a number of years meant that he knew his job extremely well and so required significantly Iess in the way of direct supervision. Counsel cited a number of cases including Boileau 724/88 (Kirkwood), Avsec 1589/89 (Low), Brick et al 10/85 (Dissanayake) and Kernick et al 509/89 (Roberts), and reviewed these decisions with the Board. In counsel's submission, the jurisprudence was clear that it was the class standard that mattered, and to succeed on a classification grievance the union must establish that the class standard does not apply to the core duties exercised by a grievor. The union had failed to discharge that burden, counsel submitted, and in any case the evidence proved otherwise. Accordingly, counsel urged that the grievance be dismissed. U..n ion Reply In reply, union counsel took issue with the employer's characterization that the grievor's lifting and pushing work was directed toward food preparation. In counsel's view, to so assert was to stretch the food chain so as to include virtually any activity under the rubric of the disputed 'class standard. Counsel argued that accepting this proposition would result in the truck driver who delivered the milk being classified as a Helper, Food Services. In counsel's view, such an argument could not be sustained in the case of the truck driver any more than it could in the case of the grievor. Counsel argued that the union had discharged its burden by proving that the grievor's core duties of heavy lifting and pushing took him out of the Helper, Food Services 11 classification. Having met that burden, counsel urged the Board to grant a Berry Order with the usual twenty days of retroactivity. Decision Having carefully considered the evidence and arguments of the parties, we have come to the conclusion that this grievance must be dismissed. We are satisfied on the evidence before us that the grievor is properly classified. The evidence is clear that the grievor spends considerable time lifting and pushing cases of food, both milk and fresh and frozen vegetables. However, the grievor's class standard not only provides for physically demanding work, it also envisages, in the second paragraph, employees in this class receiving and delivering food supplies - exactly the work being performed by the grievor. In addition to these responsibilities, the grievor is also involved in the direct preparation of food as is also envisaged in the class standard. We agree with union counsel that it would be absurd to classify the truck driver who delivers the milk as a Helper, Food Services. However, the truck driver is at least once removed from the actual food preparation. The same cannot be said about the grievor. He receives the milk, and he delivers it to the clients in the Centre, as well as to the kitchen as required. He is responsible for rotating this stock, and for reporting on spoilage, as well as for advising about quantities required. In addition, the grievor delivers fresh and frozen vegetables and actively participates in the preparation of the former. Very simply, the grievor is directly involved "helping" in the preparation and serving of food and does so in the manner explicitly set out in his class standard. The jurisprudence of this Board is clear that for a classification grievance to succeed, the union must establish that there is a substantial difference between the job being done and the job described in the class standard. In the instant case, the evidence indicates otherwise..We are not satisfied that the grievor's loading, unloading and pushing responsibilities constitute heavy Iifting, taking him out the class standard. Clearly, this work is physically demanding, but the class standard anticipates that some Helpers, Food Service, will perform such physically demanding work. We are of the view that taken individually and as a whole, the grievor's duties and responsibilities fall within the standard. It is certainly understandable, however, that the grievor might consider himself improperly classified. It was the evidence of both the grievor and Ms. Simcoe that no other Helper, Food Services has to do as much lifting and pushing as the grievor. One can easily understand why the grievor would think that a person performing this work for a large part of each day should be differently classified than persons who are not required to do these jobs. Nevertheless, the class standard contemplates this Work, and it is part and parcel of the Helper, Food Services position. The grievor is obviously an experienced, self-directed and valuable ministry employee who knows what he is doing and who does his job well. He is not, however, on the evidence improperly classified, and so we have no choice but to deny the grievance, DATED at Ottawa this :,,,d day of Jur~e1992. William KaPlan Vice-Chairperson . .L ~'t ...... ' ~' ' ~' Member A. Merri~ Member