HomeMy WebLinkAbout1977-0167.Williams.80-11-13t.
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This grievance relates to the events surrounding the reclassi-
fication of the position of Administrative Supervisor in the Finance
and Administration Section of the Northwestern Regional Office of the
Ministry of Natural Resources in Kenora, Ontario. This position was
reclassified from the Clerk Stenographer 3 level to the Clerk 5 General
level effective July 1, 1977 while the present incumbent, Mrs. William
Marchant, was performing the duties of the position.
The grievance now before the Board alleges that this reclassi-
fication concealed the creation of a new position which ought to have
been posted in accordance with the provisions of Article 4.1 of the
applicable collective agreement. That-section provides:
4.1 When a vacancy occurs or a new position is
created in the bargaining unit, it shall be
advertised for at least five (5) working dayzprior to
the established closing date when advertised within a
Ninistry, or it shall be 'advertised fdr at least ten
(10) working days prior to the established closing
date when advertised service-wide. All applications
will be acknowledged. Where practicable, notie of
vacancies shall be posted on bulletin boards.
The grievor was at the material time a Clerk 4 in the Engineering
Services section in the Same office, and thus had some familiarity with
the events as they unfolded. In particular, he says that he would
have regarded the job, when classified as Clerk 5, as a promotion for
which he would have applied. There are, however, certain factors which
render the present grievance more or less - but not entirely - moot.
In particular, it appears that the reclassification of Mrs. Marchant's
job as a Clerk 5 was in error, and it was consequently reclassified
at the Clerk 4 level effective December 1, 1977. Although there was no
express admission to this effect, the grievance was argued on the
basis that the grievor would not have applied for the job at the Clerk
4 level, since it would have been only a lateral transfer. If it is
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necessary to do so, we find as a fact that the grievor would not have
applied had the job been reclassified correctly from the beginning.
We are thus left with the grievor's claim to have been given
a chance in a competition for the job performed at all material times
by Mrs. Marchant. It is clear that Mrs. Marchant never ceased to
do this job, and so a "vacancy" never arose. The grievor's claim could
only succeed if changes made to Mrs. Marchant's job altered it so
fundamentally as to make it a "new job".as set out in Article 4.1.
It is equally clear that there is no evidence upon which we could
conclude that the grievor would have been awarded the job had he
applied. He would likely have been in competition with Mrs. Marchant,
and we have no evidence at all about their relative "qualifications
and ability", and only inferential knowledge about the "length,of
continuous service" of each of them; these are the only factors which,
under Article 4.3; can influence the filling of a job posted under
Article 4.1. Thus, given that the grievor would not have applied for
the job but for the mistaken classification and that there is no
evidence that he would have been the successful applicant even had
he applied, this is not a case for specific relief or even for damages.
It is, at most, a case where this Board might make a declaration as
to,what should have been done.
On that basis, we turn to the evidence. Mrs. Marchant was hired
as a Clerical Stenographer 3 in 1973, at which time a position specifi-
cation was completed for. her job (Exhibit 3). The evidence makes it
clear that her job "evolved" over the years as more work of different
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kinds was assigned to her. Some flavour of the change in the posi-
tion can be found in the evaluator's notes giving reasons for the
classification of the position at the level selected. In 1973
those notes stated:
-position of an employee who takes dictation and
transcribes material and performs varied semi-
routine clerical tasks according to approved
procedures.
-preparation of reports, etc. requiring judgment
in the selection and presentation of data
When the job was reclassified at the Clerk 5 General level in 1977,
the notes were as follows:
-Responsible clerical work requiring detailed knowledge
of administrative practices
-Decision making involves judgement in the interpretation
and application of policy or administrative directives
to problems where the intent of existing instructions
is obscure in specific cases, e.g. accomdation,
facilities (furniture, equipment), purchasing, etc.
-Large degree of independence; senior level contacts
required.
Finally, when the job was assigned its present Clerk 4 level,
the following reasons were given:
-Position of employee performing a variety of responsible
clerical tasks requiring a good background knowledge of
specific regulations, statutes, or local practices, e.g.
acts as purchasing officer, controlling budget, develop-
ing records management system,
-judyement is required in dealing with variations from
established guidelines e.g. deciding on best supplier
for office goods and services, quantities according to
changing user demands i.e. fire operations,
-supervises up to 3 unclassified staff performing straight
forward clerical/stenographic duties.'
To some extent, the language used in describing jobs is stereo-
typed by the classi#ication standards being used by the evaluator.
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Nevertheless, it is clear even from the formalized language used
here that a person originally hired in 1973 to do stenographic and
"semmi-routine clerical tasks" has become by 1977 an employee doing
responsible clerical work, supervising a small staff of more junior
clerks or stenographers and acting as purchasing officer for the
Regional Office.
In somewhat more detail, Mrs. Marchant began in 1973 in a job
which was about half stenographic and half clerical; she was the only
stenographer in the section at the time. The Regional Office had
only existed in its present form since an extensive re-organization
effective April 1, 1973 had concentrated many functions at the Regional
level. By 1977, Mrs. Marchant had assigned virtually all of her
stenographic duties and had delegated the actual performance of a
number of her clerical duties to her staff, she had become the purchas-
ing officer for the Regional Office and she~had supervisory responsi-
bility for other employees.
The evidence clearly reveals that the job evolved gradually,
sometimes imperceptibly. For example, she began to act as a
purchasing officer in 1974 when a particularly bad forest fire
season had required the presence of nearly everyone else, including
purchasing officers, in the field. That function grew until, in
1977, it constituted nearly half of her job. In the process, she
absorbed all of the purchasing previously done by the grievor, a
fact which is nevertheless irrelevant to this particular grievance.
Similarly, one other employee was hired in 1975, and Mrs. Marchant
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became a supervisor. By 1977 supervision constituted a quarter of
her job, and her staff had grown considerably.
The essence of the Union's case is that the assignment of
duties to Mrs. Marchant has created a new job~in a new classification
at a higher level. It seems to us that this conclusion is irresist-
ible, given the evidence presented. What Mrs. Marchant did in 1977
is so different from what she was hired to do that it could not be
reasonably characterized as a mere alteration in job duties. The
difficulty is how to decide whether this constituted any breach of
the collective agreement by the employer.
There is very little arbitral jurisprudence, among the numerous
cases on classification, vacancies and job posting, which advances
this matter much. Only one case was cited by the parties (by the
Union in fact) but we are, with respect, unable to see how it is
relevant to the matter before us.
Perhaps the best starting point is the collective agreement
which, by force of s.17(1), is deemed to provide that it is the
exclusive function of the employer to determine, among other things,
employment, appointment, complement, organization, assignment, work
methods and procedures, and classification of positions. The only
limitation on this general authority appears to be Article 4 of
the collective agreement, which seems to be accepted as outside
the scope of the defined managerial prerogative.' The employer,
therefore, may shift duties around among employees, assign. new duties
to an employee or withdraw duties from an employee without hindrance,
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provided that appropriate alterations to classifications are made.
It may also create and classify new positions, but if it does
it must fill those positions in accordance with Article 4. Did
the employer create a new position around.Mrs. Marchant, thus lead-
ing to a breach of Article 4.1 when it failed to post that position?
The onus in this case falls on the Union, and it is a very
difficult onus to meet. Incremental enhancement of a job can
certainly produce a different job, and indeed it did in this case.
But demonstrating just when the accretion of new duties so changed
the character of the job is not easy, and the grievor appears to
have made this task more difficult by laying stress on the
purchasing aspects of Mrs. Marchant's job. We are, at least
prima facie, more attracted to an argument based'on the assignment --
of supervisory duties over employees to whom ~Mrs. Marchant could
assign some of her own more routine duties. In any event, the main
changes had, in our view of the evidence, occurred by 1975 when she
had taken over a substantial purchasing function and had begun to
supervise her small staff.
In the circumstances, we do not propose to go any further in
our analysis of this case. A permanent statutory arbitration
tribunal owes it to the parties to assist them in interpreting
the collective agreement, and that may even include declaratory,
relief when specific relief is no longer sought. On the other hand
our permanent relationship with the parties cannot justify Ecathedra
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pronouncements in the absence of a fact situation which requires
those findings. Our task, as our name implies, is to settle
grievances, not to act as an oracle.
It may 'be that, at,some time in 1975 or shortly after, an
employee for whom a job with supervisory and purchasing duties
would have been attractive could have convinced the Board that
assignment of those duties to Mrs. Marchant, who had not had them
before, was to create a new position around Mrs. Marchant rather
than to create the position first and offer all interested employees
a chance to be considered. It may be that such a position would
properly have been classified at the Clerk 4 level even from that
time. None of that happened, however, and the propriety of what
did happen ought not to be determined on the basis of a grievance
filed long afterwards and based on a misapprehension that a Clerk 5
position was involved.
We observe that another grievance related to this matter
and filed by the same grievor deals with the proper classification,
at the material time, of both the grievor's job and Mrs. Marchant's
job. Our assessment of the propriety of the classification pro-
cedures is contained in our award in that matter, 33/78.
In the result, the present grievance is dismissed.
DATED 'AT Toronto this 13th day of Novemberd9BO.
Vice-Chairman
I concur
V. P. Harris Member