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HomeMy WebLinkAbout1992-0254.Magafas et al.93-01-04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMpLOYEES DE L 'ONTA RIO GRIEVANCE C,OMMISSlON DE .SETTLEMENT REGLEMENT BOARD. DES GRIEFS 180 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO, M5G lZ$ TELEPHONE/T~L¢PHONE.. (4 16) 326- ~388 180,"RUE DUNDAS OUEST, BUREAU 2 I00, TORONTO (ONTARIO), ,Mf5G 1Z8 FACSIA411..E/T~L~COPlE .. (4 16) 326- 1396 254/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT 'BETWEEN OPSEU (Magafas et al) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employer BEFORE: W. Kaplan Vice-Chairperson E. Seymour Member F. Collict Member FOR THE M. Doyle UNION Counsel Ryder, Whitaker, Wright & Chapman Barristers & Solicitors 'FOR THE S. Patterson EMPLOYER Counsel Legal services Branch Management Board of Cabinet HE~RING December 4, 1992 Introduction ' By identical grievances filed on February 6, 1992, Christos .Magafas, Konstantinos Tziortzis,.Sam Quartarone, G. Zangari, John ROby and John MavroUtsikos grieve that they are improperly classified and seek a Berry Order retroactive to. twenty days prior to the filing of their grievances. The' case proceeded to a hearing before the Board. None of the evidence was really in dispute, and the Case centered on the proper interpretation of the class standard. It is useful to set it out in full, as well as the grievors' position specification... The Class Standard: MANUAL WORKER CLASS DEFINITION: Employees in positions in this class perform a variety of unskilled manual tasks assisting .technicians, tradesmen, maintenance, agricultural, highway or forestry workers in routine 'assignments. In most positions, their duties involve considerable physical effort and are closely supervised. In some positions their tasks are So repetitive as to receive only general review. In others, they may be training 'positions for more technical duties. _The duties of these positions and their immediate supervision are indicative of the work areas in which -they are Performed:- In some positions, in a maintenance area, these employees shovel and spread coal and operate a conveyor; collect and burn garbage and refuse and clean and service an incinerator; remove waste at a sewage, pumping station and clean water tanks; clean combustion chambers and tubes in a boiler room; remove paint or wallpaper and wash and prepare walls for painting. ° In other positions, in a supply and construction area, these employees unload and stockpile .construction materials; operate hand trucks, shovel gravel and mix mortar; dig and break cement; move tools, machines, equipment, supplies and furniture; erect building forms and scaffolding. In other positions, in a forestry or landscaping area,. these employees, assist in weeding, hoeing, transplanting, packing and shipping young trees; cutting brush and firewood, trimming trees and clearing underbrush. They may be required to service park comfort stations or occasionally operate a truck or tractor to clear snow or underbrush or pick up and deliver freight. In other positions in an agricultural area, these employees, plant, cultivate and maintain flower gardens, lawns and hedges; feed and tend animals and poultry; clean cages, barns and equipment; load and deliver milk, food supplies, farm prOduce etc. In other positions, in a highway maintenance area, these employees dig ditches, clear culverts; shovel snow, sand, gravel, hot and cold'bituminous mixes; maintain guide posts by replacing, painting, attaching 'cables;..dig post holes by hand shovel or power-operated post-hold 'digger; cut and trim trees and grass using power oPerated chain · , saw, hand saws, hand or small power operated mowers, scythes, Operate spray bar of tar kettle when road patching or crack filling. May be assigned to operate light powered equipment up to 39% in any one season of the working year. qUALIFICATIONS: 1. Elementary school education. 2. Some working experience with labouring tools. 3. Ability to' follow simple instructions; willingness to co-operate; good physical conditiOn. 4. Whe~ operating Department.of Highway'.s equipment ° must-Possess ~current chauffeur's license and pass Department operational and safety tests. September 1965 The "duties and related tasks" part of the position specification provides: 90% 1. Prepares committee and meeting rooms as. assigned by: -arranging furniture and equipment in ·each room . according to prescribed pattern; -assisting the Electronic 'Technicians in the set, up of audio visual equipment in Committee Rooms; -dividing rooms by sliding partitions into place; using a ladder, if necessary, to free the partitions from any obstruction; -cleaning ashtrays, cleaning and polishing .. furniture, as required; -washing and refilling water containers; 5% Z. Moves and assembles furniture and equipment, as assigned by: . -transporting furniture such as desks, filing cabinets, banquet tables 'and chairs, using four wheel dollies, to and from offices, meeting rooms, buildings and storage areas; -disassembling desks where, necessary to - facilitate moving and-reassembling items · following the move; -returning dollies and tools to designated location after use each day.~ 5% 3. Performs other duties as assigned, such as: -delivering items to various government offices. The Evidence Mr: Sam O. uartarone gave evidence as a representative grievor. All of the grievors are employed by the Ministry of Government Services and work 'at Macdonald Block. Their position title is "Labourer", .and as already noted, they are'all classified as "Manual Workers." Mr: O. uartarone teStified that his position specification was 90% accurate: He told the Board that he and the other grievors are primarily responsible for setting up the Committee Rooms on the second floor of Macdonald Block. There are 21 rooms, and this number can be increased to 31 moms if dividers are put into 'Place. Every day the set, up of the rooms changes. There are many different' configurations; it all depends on the needs of the client group. Generally, the grievors work in pairs, but for very big jobs all six grievors will be assigned to the task. After the rooms have been set up, the grievors have some continuing responsibilities. People using the rooms approach them if they need extra chairs or.equipment, or if-they have a problem 'with the lights. Sometimes, the needs of the client group change, and so the room configuration has to be changed at the last minute. Some days, more' than one meeting has been scheduled for a particular room, and so the grievors have-to set the room up several times. Mr. O. uartarone testified that at .the time the grievances were filed, he and the other grievors Worked out of a room on the second floor. This room had- a desk and some chairs. It did not have a sign on the door. At that time, the grievors wore blue uniforms with no official markings, on them. Nevertheless, the grievors would often be stopped by people in the Macdonald Block and asked for directions. The grievors now wear white shirts with lettering on them stating "O. ueen!s Park, Conference Facilities." In addition to interacting with the public when approached, the grievors also deliver messages to. clients in the different rooms, and the Board heard some evidence about hOw the grievors received those messages and how they then delivered them. While Mr. Quartarone's position specification was 90% accurate, he testified that the grievors .only moved 'office furniture .once in a while. He did agree, however, that by and large the duties described in part 2 of his position, specification occupied approximately 5% of his time. With respect to the remaining 5% of.his time,' Mr. Quartarone testified that the grievors deliver certain daily sheets to Queen's Park Security and elsewhere. In cross-examination, Mr. Quartarone agreed that at the time the grievances were filed the grievors did not wear white shirts. Mr. Quartarone testified that his supervisor/foreperson was Mr. George Felfodile. Mr. Felfodile worked with the grievors as well as supervised them. In the. morning, the grievors would meet with Mr. Felfodile and he would hand out. the daily work instructions. An example of these instructions was introduced into evidence. The grievors would receive a sheet of paper for each room with a diagram on it indicating how the tables and chairs should be set up. This doCument also indicates whether other supplies' like flip charts are required. Mr. quartarone testified that he and the other grievors would sometimes assist the audio/visual technicians in setting up their equipment if they were busy or if they required assistance. The evidence have been completed, the matter proceeded to argument. Union Argument Union counsel began her submissions by observing that the union's evidence was uncontradicted, and'it was to the effect that the grievors were performing their duties in public places and with considerable interaction with the public, either' by way of requests for changes to rooms, additional equipment, delivering of messages or' responding to queries from members of the public. At the time the grievances were filed, the grievors worked 7 out of a room adjacent to the meeting moms which they set up, and counSel noted that the grievors were,' at that time, clearly marked as O. ueen"s Park employees because of their blue uniforms, counsel nOted that the evidence of the grievors assisting technicians, or others, as they.went about their work was virtually non-existent. Turning to the class standard, counsel argued that it did not say "may assist" technicians, etc., in the performance of their duties. Instead, it said, "Employees in positions in this class perform a variety of unskilled manual tasks assistihg technicians .... "In counsel's view, the evidence established that the grievors were not assisting technicians, or anyone else, for that matter, and so the class standard could not possibly apply. Counsel argued that this interpretation was buttressed by the rest of the class, standard. In her submissions, the examples given of situations where "labourer's" work was performed further indicated the inapplicability of this standard .to the grievors. Counsel reviewed each of the examples, and noted that their °ne common thread was isolation from the public. In contrast, the grievom were very visible to the public and had considerable public interaction, because of their uniforms, because of the demands of their job, and because of the location of their, office adjacent to one of the meeting rooms. Counsel also argued that the grievors' dUties extended beyond the mere moving of things, but included setting up .rooms according to requirements and responding to last-minute and other client needs. In counsel's Submission, the qualifications section of the class standard further established the inapplicability of that standard to this group of employees. Nowhere in the qualifications section was there any requirement that incumbents be able to deal with the public. coUnsel referred the Board to a number of cases. She cited the' Mallette et al'decision 51/86 (Slone) for the proposition that the plaCe in which work is performed is a 'factor to be taken into account in assessing an assigned class standard. That case cOncerned the classification grievances of twenty-five Psychiatric Nursing Assistants working at the Brockville Psychiatric Hospital. The grievors in that case alleged .that they were improperly classified because of the different duties they .had to perform as a result of being assigned to the medium security ward. The. Board in Mallette.et al found that the grievors were improperly classified: "The P.N.A. 2 Classification is simply too one-dimensional, and while it may be perfectly adequate for P.N.A.'s in other wards, it fails to mirror the true essence of the P.N.A. 2 on ward K. That job's dual responsibilities for therapy and custody are almost equal partners, .while the class standard would have one believe that the custody function was at most. a tiny minority shareholder" (at Z0). Counsel argued that the' Board in the instant case should likewise consider the fact that the grievors were performing duties in a public place, while their class standard envisaged their performance in more ·isolated settings. In counsel's view, this was another argument in favOur of a Berry Order. . Counsel also cited Avsec 1589/8'9 to the Board for the proposition that in reviewing class standards, it is appropriate for the Board to look at the skills and abilities that the grievors must have to perform their positions. In the instant case, counsel argued, the grievors were required .to exercise .skills in dealing with the public and on that basis as well a Berry Order was appropriate. 9 Employer Argument Counsel for the employer argued that the union case rested on two claims: First, that the grievors must "assist" someone in order to be properly ~lassified, and second, that the list of examples was exhaustive and that if the grievors did not fall within it then' the class standard did not apply. COunsel took issue with both of these submissions. Counsel argued that the first sentence 'of the standard must be read in conjunction with the rest of the Standard, and in that regard the list of examples was not exhaustive but illustrative. Counsel pointed to the wording of the second paragraph of the class standard, which stated: "The duties of these positions and their immediate supervision are indicative of the work areas in which they-are performed:-" (emphasis ours). The word "indicative" meant, in counsel's view, just that. Moreover, counsel submitted that one of the examples could apply to the grievors in that they I could be said to be working in a "supply" area, responsible fo~ moving "supplies and furniture." This, counSel argued, was exactly what the grievors spent 90% of their time doing. In counsel's submission, the grievors were performing an unskilled manual task as envisaged by the class standard and their specific duties were set out in that standard. Counsel argued that the grievOrs' interaction with the Public was, at best, incidental to their main functions 'and insufficient to take them out of this class standard. Very simply, these interactions, in counsel's view, could not be described as "core duties." Counsel .distinguished the Mallette et al decision from the instant case, and pointed out that in that case the grievors were found to be doing a different job approximately 50% of the time. This could not be said to be so in the instant case. Counsel. also referred the Board to Araujo et al 2026/91 (Stewart). This case, which counsel .reviewed in some detail~ concerns the same class standard at issue in the instant case..- The duties of the grievors in Araujo et al included setting up audiovisual equipment, and they were required to "trouble shoot" for problems as they occurred. The Araujo et al griev0rs also moved, assembled and disassembled furniture, and there was considerable evidence about hoW they went about doing so. ' -The Board in AraujO et al.noted that "class standards are not designed to provide a detailed description of all of the duties of a position. The position specification exists for that purpose. The class standard is intended to provide a very general descripti°n of duties that a number of positions may involve. In considering a classification grievance it is necessary to decide whether the duties of the position in issue are captured by the general description contained in the claSs standard or whether the duties actually reflect a different job than is contemplated by the class standard to' which the positiOn has been assigned" (at 4-5). The Board in Araujo et. al went on to find that the grievors in that case were performing. .. unskilled work: In' our view, the meaning of "unskilled" in .the context of this class standard must be determined' in light of all the examples contained' in the class standard that are illustrative of the types of duties intended to be captured. As Ms. Webb pointed out, there are a number of examples of duties that involve primarily physical exertion, such as shovelling, loading and hoeing. However, the class standard ..also refers to tasks of greater complexity ·that entail more than simply physical effort. These tasks, include servicing incinerators, operating hand trucks, the erection of building forms and scaffolding and the operation of power-operated posthole' diggers and chainsaws. In our view, the nature of the duties and 'the skills required to carry out these tasks are comparable to the duties and skills of the grievors required for the duties in connection with the setting up of audiovisual equipment that it is claimed take them outside the Manual Worker classification. The duties of the grievors in connection with the 'assembly of furniture 'clearly fall within the types of duties contemplated by this class standard. We note that there is a specific reference in this class standard to the moving of furniture and equipment (at 6). Counsel urged this panel of the Board to come to the same conclusion, and for the same reasons,, as had the pan.el of the Board in Araujo et al. Union Reply Union counsel confined her reply to distinguishing the Araujo et al.decision from the instant case. Not only were the facts in that case different from this' one, but even more importantly, the case could and should be distinguished because the Board in Araujo et al had not directly Considered the question of what was meant by the word "assisting" in the first paragraph of the class standard. Counsel argued that the employer is responsible for drafting the class standard, and it put the word "assisting" in there for a reason. The grievors in the instant case were not assisting any of the named positions in the class standard, and so, in c°unsel's submission, .the grievance should be upheld on that basis alone. Counsel also argued that another important distinguishing feature of the Araujo et al decision was the-fact that the Board had not, in that case, Considered the location of the work being, performed, and for the arguments already given, · counsel urged the Board to take that feature .into account' in its interpretation of the class standard. Decision Having carefully considered the evidence 'and arguments of the .parties, we have come to the conclusion that these grievances must be. dismissed.' Having heard all of the evidence, it is clear to use that the grievors are hardworking responsible emPloyees who render valuable service to the. Ministry. The evidenCel however, also establishes that they are proPerly classified. As did the Board in Araujo et al, we find that the class standard must be read as a whole, and after doing so, we find that this class standard accurately encompasses the core duties and responsibilities of these grievors. IVloreover, it specifically enumerates the duties they perform for approximately 90% of the time, namely the moving and setting up of furniture. ' Having determined that the class.standard must be read as a whole, we find that the grievors need not explicitly "assist" technicians, tradesmen, maintenance, agricultural, highway, or forestry workers to fall within it.. The purpose of this class standard is to classify emPloyees performing manual labour, and on the evidence befOre us this is exactly what these grievors do. We note, moreover, that the grievors also work with their supervisor/foreperson, and while the evidence on this was quite limited, the grievors could~ reasonably be described as assisting him. A few final observations are in' order. While the grievors do perform a number of functions which cannot be properly described as "manual labour", such as responding to public inquiries for assistance, we find that these functions are so incidental to their core duties as to have no impact on their classification. Their other functions, such as responding to client requests for assistanCe, such as in the CaSe where the client requires a reconfiguration of the meeting room, are directly related to their core duties and so ·cannot serve as the basis for reclassification. The fact that the grievors do not wOrk in an· isolated setting is, in our view, not material to the issue before us as the eXamples given in the class standard are illustrative and not exhaustive. And we find, in any event, that that class standard specifically 'incorporates their core duties and responSibilities, namely the. moving and setting up of the furniture in the different.meeting rooms in Macdonald Block. For the foregoing reasons, the grievances are dismiSsed. DATED at Toronto this ,th day of I William Kaplan Vice-Chairperson E. Seymour Member,