Loading...
HomeMy WebLinkAbout1982-0456.Collins.83-06-21IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before : For the Grievor: FQr the Employer: I Hearing: OPSEU (Anthony Collins) Grievor - and - The Crown in Right of Ontario (Ministry of Transportation and Communications) Employer R. L, Verity, Q.C. Vice Chairman J. MFManuq Member H. Roberts Member L. Stevens Grievance Officer Ontario Public Service Employees Union G. Stewart Head, Personnel Services Southwestern Region Ministry of Transportation and Communications June 1, 1983 - 2 - D?$CISION In this matter the Grievor, Anthony Collins, claims that he is improperly classified as a Highway Equipment Operator 2. He requests reclassification to the higher level of Highway Equipment Operator 3. The Grievor has been employed with the Ministry for almost TO years at the Kent Centre, a Ministry Patrol Yard located in Kent County at the intersections of Highways 401 and 40. The foll.owing extracts from the Preamble to the Highway Equipment series are useful by way of background. "Employees in these classes operate vehicles and equipment in connection with the construc- tion, maintenance, .snow removal and patrol of highways and roads serviced by the Ministry of Transportation a/id Communications. They are assigned to one of four classes in the Highway Equipment Operator Series based on (1) type of equipment operated, (2) percentage~of time running particular'equipment, (3) seasonal assignments, (4) qualifying tests, and (5) percentage of time spent on equivalent assignments as specified in this series. Many pieces of equipment used by the Ministry staff are classified into three groups de- pending on the complexity of the equipment and the skill required of the Operator. In Appendix 1 - Equipment List - Type 'A' equipment represents light equipment, Type 'B' heavy equipment, sod Type 'C' heavy and 'hjghly specialized equipment. Type 'A' is the lowest rated equipment, Type 'B' the next lowest, and Type 'C' is the highest rates." - 3 - work i The Preamble also indicates that the nature of the s determined partially by seasonal requirements in which two seasons are recognized, namely summer and winter. The Class Standard for the Highway Equipment Operator 2 reads (Exhibit 3e): "CLASS DEFINITION: This class includes posit ions of Highway Equipment Operators who are described in one of the foil assigned the duties owing work categories: a) Operate Type 'A' equi pment in summer, and operate Type 'BI equipment in winter; b) Operate Type !B' equi pment in summer, and act as wingman in winter; c) Act as labourer in summer and perform the duties of a night patrolman in winter. SKILLS AND KNOWLEDGE REQUIRED: 1. Some experience ins the operation of highway equipment or related types of machines. .2. Ability to supervise labourers or other assistants. An aptitude for driving and an acceptable driving record. NOTE: Wingman equates to Type 'A' equipment. In mixed positions, where operators operate heavy equipment in one season and light in the other, they must operate Type 'B' equipment at lease 40% of the year to be included in this class. Night patrol assignments must be of at least 4 months duration." - 4 - The Class Standard for the Highway Equipment Operator 3 reads (Exhibit 3f): "CLASS DEFINITION: This class includes positions of Highway Equipment Operators who are a.ssigned to the duties described in one of the following work categories; a) b) cl Operate Type 'B' equipment in summer and winter for a total of at least 70% of the year's working time; For a total.of at least 70% of the year's working time, operate Type 'B' equipment and assist the Equipment Operator (Type C), such assi,stance being less than 40% of the year's working time; Operate Type 'A' equipment in summer and act as night patrolman in winter for a total of 70% or more of the year's working time. SKILLS AND KNOWLEDGE REQUIRED: 1. Several years of experience in the operation of highway equipment or on related types of machines; an aptitude for driving and an acceptable driving record. 2. Ability to supervise labourers or other assistants. Assignment of assisting the Equipment Operator Instructor equates to Type 'C' equipment. Night patrol assignments must be of at least 4 months duration." - 5 - The dispute in this Grievance relates exclusively to the Grievor's summer related duties. It was agreed by the Parties that the Griev~or does perform as a Night Patrolman in the winter and in that capacity is credited with operating equipment for 40% of the year's working time. For the Grievor to be successful in this grievance, he must establish that he has been assigned to "Type A" equipment in the summer for 30% of thee year's working time. The Union argued that the Grievor has actually performed more than a labourer's job which is contemplated by the Highway Equipment Operator 2 Class Standard, and that he has done so for a number of years. Ms. Stevens alleged that management recognized that fact in 1982 when the Grievor was reclassified at the 3 level in an acting capacity from March 28, 1982 to July 5, 1982. The Ministry argued that the Grievor was properly class- ified at the present time and that Article 6.4 of the relevant Collective Agreement effectively prevented the Grievor from claiming the higher classification as a result of temporary assignments during vacation periods of other employees. The following provisions of the Collective Agreement were cited by the Parties. "6.1 Where an employee is assigned temporarily to perform the duties of a position in a classification with a higher salary maximum for a period in excess of eight (8) consecutive working days, he shall be - 6 - paid acting pay from the day he commenced to perform the duties of the higher class- ification in accordance with the next highest rate in the higher classification provided that such acting pay shall not be less than three percent (3%) above his current rate." "6.4 This Article shall not apply to temporary assignments where an employee is temporarily assigned to perform the duties and respon- sibilities of another employee who is on vacation." Essentially the material facts are not in dispute. The Kent Centre Patrol Yard is a small Ministry Yard which has been manned since 1978 by only three employees and one Patrol Supervisor. The equipment assigned to that Yard by the Ministry for the summer months was generally limited to 2,- 5 ton trucks (alternatively 1 - 5 ton and 1 - 3 ton truck), one pick-up truck and a front-end loader with attachments (all Class "A!'). Typical summertime duties for employees at Kent Centre include the patrol of designated roadways, removal of litter from the highways, repair of guard rails and signs, digging out culverts, scything weeds, manual sweeping, clearing catch basins, cutting grass, hauling~ gravel, the occasional removal of garbage, and road repairs. In 1974 the Grievor was appointed Night Patrolman for winter duties. Until 1976, the Grievor was assigned to specific pieces of equipment by the main offiqe of the Ministry in Chatham. In 1976 and 1977 the Patrol Supervisor personally assigned the Grievor to drive a 5 ton truck which on one occasion lasted for -7- a three month period. In subsequent years commencing in 1978 the Grievor was assigned by the Patrol Supervisor to drive all equipment during the summer months for varying periods of time. In particular the Grievor was responsible for driving the pick-up truck. Andrew King, recently retired from his position as a Highway Equipment Operator 3, testified that the Grievor normally operated the pick-up truck at the request of the Patrol Supervisor and in so doing transported employees to and from the job site. Mr. King testified that the Grievor would devote approximately three hours of his regular eight hour day for that assignment. The evidence is clear that the Grievor drove each piece of, equipment in the yard while fellow employees were on vacation or were ill. In 1979, the Grievor was advised by Ministry officials that his summer duties did not include driving equipment except in emergency situations. Subsequent to 1979, the evidence is clear that the Grievor performed all driving tasks assigned by the Patrol Supervisor. - 8 - In 1982, the Mini.stry conducted an evaluation from all relevant data to determine the Grievor's equ time (Exhibit 10) for the period from April 12, including July 5, 1982. As a result of that eva Ministry took two significant steps. First, the pment operating 982 to and uation the Ministry re- classified the Grievor on an acting basis as a Highway Equipment Operator~3 for a period from March 29, 1982 to and including July 5, 1982. In that regard the Ministry sent the Grievor a letter dated August 6, 1982 which read in part (Exhibit 6) fur Gri "Since the Patrol Supervisor was in error in permitting you to operate a significant percentage of time between the dates of March 29 and July 5, 1982 inclusive, anadjustment will be processed reclassifying you as a Highway Equipment Operator 3 on a acting basis. This reclassification will be for the period March 29 to July 5, 1982 after which time you will revert back to your former classification of a Highway Equipment Operator 2." Secondly, the Ministry relieved the Grievor from any her driving requirements. On the evidence, the Board is of the opinion that the vor is more properly classified at the higher level. While it is true that the Grievor was not assigned to drive equipment by the Chatham office of the Ministry, the assignment by the Patrol Supervisor is of the same effect. The evidence is clear that the Grievor has been assigned to the operation of Class "A" equipment during the summer periods for in excess of 30% of the - 9 - year's working time. That percentage when combi night patrolman's responsibilities in the winter the Grievor for the higher classification. ned with the does qualify In an attempt to be fair, the Ministry submitted 1. into evidence the results of its investigation (Exhibit 10 Unfortunately for the Ministry, that result established the legitimacy of the Grievor's claim. The Ministry investiga tion was undertaken during a period of time when holidays were not an important factor, and accordingly the Board is of the opinion that Article 6.4 is not applicable. The evidence also establishes that the 1982 survey results would~ have produced similar results if conducted in preceding years. In this grievance, the problem experienced by the Ministry is a direct result of the operation of a small Patrol Yard in which assignments are shared between the employees. We hasten to point out that this result should not be considered a precedent of general application. It remains a truism that each grievance must be determined on its own particular facts. In the result, the Grievor shall be awarded the Highway Equipment Operator 3 classification with pay retroactive to July 5, 1982. - 10 - The Board shall retain jurisdiction to resolve any difficulty in connection with the calculation of the appropriate compensation. DATED at Brantford, Ontario, thiszlst day of June, A.D.~, 1983. L c- 7 E-L. Verity, Q.C. J. McManus, Member 5: 2400