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HomeMy WebLinkAbout1984-1429.Tutt.86-02-261429184 IN THE MATPER OF AN ARBITRATION Under TkiECRCJ5EEMPLDYEESCOlLECTIVEE4RG4lNINGACT E!efore THEGFtrmwx~BoARD OPSEU (N. Tutt) wd Griever The CrowninRightof Ontario (Ni.nistq of Trsnsportaticm and Cmmmicatims) Fqloyer Eefore: G. Brent I.J. lhaasm W.A. Lobraico For the Grievvr: M.I. Rotnw Counsel Rotnm&Z.a&mki Barristers & Solicitors For the Fqloyer: K.B. Cribbie Staff Relations Officer Human Resources Branch Ministry of Transportation & Communications Hearing: December,20, 1985 DECISION -The grievance 1n this matter (Ex. 11 is dated December 17, 1984 arid allages that the qrievor is improperly classified as a Clerk 6, Su??ly and should be reciassifiad as a Clerk 7, Supply. The griever, MT. .Tutt, has been enployed by the Ministry of TrKlsportation an< Communication in various capacities since 1958 (there was a three year hiatus in his employment between 1'963 and 7966). He began as a Clerk 1, Supgly and has held various classifications over zhe years. He works i1 Thunder Bay. The only witTess we heard was the griever. It would appear that sometime early in 1984 there was a reorganization of warehousing facilities in Thlr.der Bay, and two jobs were combined into one when the electrical supply and equipment warehouses were merged. The qrievor was ajrarded the new lob and in march, 1984 was notified that there would be no change in his classification as a result. He said that as he began to do the job he realized that it involved extra responsibility, a greater workload for him, and required more staff than he was allocated. The grievance was filed in December after he had discussed his classification with his supervisor. The qrievor is responsible far a warehouse operation which consists of three buildtigs (15,200 sq. ft.) and two yards (5-6 acres): He supplies 19 patrol yards and 21 remotenorthern airports, as well as supplying sips '3 Sault Ste. xarie. He directs 9 subordinates who are part of the persanent staff. He also testified that in addition tO those he is responsible for 2 contract people. .The situation in relazim to the contract people he described ae being "almost permanent". tie also said that ile "tsually" has these 2 extra people working for hi!z and that the volume sf the 'uork done in the warehouse requiras 11 people in ,. ” 5 order to cover the extra duties involvs? in sir-Jicing the northern airports. The griever went into much -ore dezail cczcernin; the job, th? volume of work, and his respcnsibzlities; however, in view of t:he area of disagreement between the parries, iz is nc-. really necessary to relate any more of his evidence. The parties filed with us the Class Standard for the Cleri Supply series (Ex. 2). we shall repr:duce rtia Preanble, and the Class Definitions for the Clerks 6 and 7. PREA.'lBLE CLERK SVPPLY a These classes cove: the positions cf emplcyees who perform a variety of cLerical, mancal, administrative repair or purchasing fuzzions that are common to ,stockkeeping oPerati:ns in the Provincial Government Service. If any employee specializes in cmly one of the =a?y tais involved in the operation of a stockr:om, t5.e posirion should be classified in anonher series more appropriate to the type of work. Fsr example, positions concerned entirely irith tL:e clerical recording of transactions sho_id be allocated to the Clerk, General series. ;ositior.s in which purchasing is the ma2 funcr:on shczld not be classified in this series. Many factors. sic'. as the sainte-.ance of the necessary ledger or other records, mven tory control, establishment of zinimur - maximum requirement* etc., are c,mman tz all s:z=krooms and vary significantly only to the extent '.hat the size of the stockkeeping f,;nction ;-aries. Thus, the overriding criterion in making alloca::cns in this series is the size, as -&fined ~7 this preamble, of the stockkeeping function rather than r-.y variation in the clerical or a'miniszrative functions associated with it. Supervisory posi::ons cc-:ered t< the classes Clerk 3 to Clerk 6, Su&?ly will Se assIgned to one class higher in the series :f purchasing. as defined below, is one cf the f_?ctioni requirxg a minimum of 20% of the wzrkiny t:ne. 4 DEFISITION: Size of operation: Because of the tremendous variation in the nature and organira:ion of stockkeeping functions between departments, the number of staff required for the operation of a particular unit is the only practical basis of comparison for classification purposes, Z-J all departments except Health aad Reform Institutions. In the latter departments, patients or inmates are often employed in stockkeepiag operations. Consequently in Gntario ilospltals, zhe size, in terms of bed capacity, 1s the criteria used. The size alone of a Reform Institution ignores the possible existence of industries, which complicate the stockkeepi?g function, therefore the value of annual stock turnover is used as a basis of comparison for the determination of level. Stockrooms having less than 100 differer.t types of stock are, for the purpose of this class ~serles, considered to be equivalent to specific specialized sections of larger stockrooms, and the positidls will be classified accordingly. . . . . . . . a.. . . . the sizes of stockkeeping operations are defined as follows: N Stockroom - This is a small stockroom operated by one employee or by one employee and an assistant. Medium Stockroom - This is a stockroom which requires a supervisor and two to fouk subordinates. a Stockroom - .A stockroom which requires a supervisor and five to nine subordinates. Very Larz Stockroom - A stockroom which requires a supervisor and a minimum of ten subordinates. Supervision: Positins supervised include.only those filled by zeaporary or permanent Civil servants or by coltu~uousl:i employed public servants who report to the supervisor for discipline, work assignment and adm;nistracive control. This includes all clerk 5 s"PPlY, clerk general, mach:ne operating, clerk messenger and driver positixs concerned in the overall operation of the duties assigned to the stockroom supervisor. No credit for supervision will be given for non-ccntinuous help, or for employees temporarily on loan from other organizations. Neither is credit given for employees who report to the supervisor purely for admin:strati..'e convenience, when these employees are r.nt inv:lved 1:. the operation of the stockroom or any of the auxiliary duties assigned to it. . . . . . . . . . . B DEFINITION: This class covers the positions of employees who, order general supervision., are rtsponsibie for the operation of a large st-ckroor with five to nine subordinates. They snsure the careful checking of incoming stock, the shiplent of stock against authorized requisitxns ant the neatness and security of the stockroom. They 5ocide minimum maximum requirements; reqxisiti3n supplies; maintain a perpetual inventory and complete stock ledger records; prepare repcrts of -he operation for the supervisor. Their responsibilities often include supervision of the departmental printing and mail and messenger services. This class also covers the positions Of supervisors in charge of a ceztralire3 stockkeeping operation in Ontario Hospitals of ore: five hundred bed capacity. This class covers'the pcsitiCns of super?isors in reform institutions in charge cf centralized stockkeeping operations w:th an annual Stock tumover value of more than 5300,OQG and less than $900,000. ..,.,..... CLERK 7, SUPPLY (BAEGAINING m This class covers the p>siticr.s of employees who, under genera.1 supervisio., are r*sponsirle for the operation of very large stoc:<:ooms .xith a minimum of ten subordinates. Tb.2~ ensure the careful checking of incoming stock, the ship:ent of stock against authorized rcquisi::ons ar.d the neatness and security of -..ie st:zkroom. They 6 decide minimum/maximum reqairemexrs: requisitim supplies; maintain a perpetual invexrory, complete stock ledger records and prepare reports of the operation. Their responsibilities sften include supervlsion of the ministerial printing and messenger sernces. This class applies to the ;ositions of supervisors in charge of a centralize3 stockkeeping operation in Ontario iiospitals of over 1,000 bed capacity. This class covers the positions zf supervisors ,in reform institutions in charge cf centralized stockkeeping operations wizh an annual stock turnover value in excess of S300,OOC (1964). ..*....... The parties agreed that there is very litrle difference between the duties of the Clerk 6, supply and the Clerk 7, S"PPlY. That is confirmed by the above Class Standards .zs well as the Position specifications which were filed (Exs. 3, 4, j 5) for the griever's job end the Warehouse Supervisors i? Rexdale and Hamilton respectively. The duties performed by all three are essentially identical. The major points of difference are that the griexr is responsible for an inventory which is valued at roughly 604 more than the other two and he supervises fewer regular employees. The grierx is also responsible for duties in connection with the servicing of the northern airports, which do not arise in either the Rexdhle or Xamiltor. positions. The mayor point of argumer.t centred aroad the requirement i? the class standards for a mtiimum of ten subordtiates in order to meet the Clerk 7, Supply definition. The parties cizadthe following cases to us: WilcoxGSBFile 761/S4; %Ontario PublF:Service Employees Union and the Crown in riqht of Ontario et al. (13331, 44 O.R.(Zdl 51 (Div'l ---- Crt); & OntariwHydro and Canadian Cnion cf Public EmPlOYe@S, - M -- 1000 (19831, 11 L.A.C.(3d) JO4 (Shim@); mtarl: Public Service EmploY@@S Union V. The Queen in riqht of Ontario @t 5:. --- ’ (1982), 40 O.R.(2d) 142 . * 7 (Div'l Crt); iampbell.et al GSB File 451/82, aff'd (1985) unreported -- (Div'l Crt); - Solda 648/81; and & Dominion Stores Ltd. and Retail, Wholesale & Deoartment Store Union (19761, 13 L.A.C.(2d) 433 (Ra)ner). -- This is a rather unusual situation since the two classifications are described as being virtually identical with the exception of the number of subordinates supervised. Therefore, to speak of whether the core duties are being performed may be somewhat misleading. It was arqred by the Employer that the griever couhd not be reclassified as a Clerk 7, supply because he supervised only 9 subordinates. we agree thatthenumber of regular employees supervised is only 9, and jre are also aware of the passage in the preamble which reads as follows: Positions supervised include only those filled by temporary or permanent Civil servants or by ccmtinuously employed public servants who report to the supervisor for discipline, work assignment and administrative control., This includes all clerk S"PPlY, clerk general, machine operating, clerk messenger and driver positions concerned in the overall operation of the duties assigned to the stockroom supervisor. NO credit for supervision will be given for non-ccntinuous help, of for employees temporarily on loan from other organizations. Neither is credit given for employees who report to the supervisor purely for administrative convenience; when these employees are not involved in the operation of the stockroom or any of the auxiliary duties assigned to it. No doubt thispassage is inserted in the preamble 50 that the amount of suPervision done can be discounted when it involves ccntract employees who may be there for a little while'one year andnotatall the next, for example. That is, if there is no real conrinuous s"psrvlsion of an enployee, then the employee is not coun:ed when assessing the supervision component of the lob. If this were simply a head count, then, the grlevor could not rely on the contract e;r.loyees vhom he supervises in order to pass rhathurdle. What makes the case difficulttoassess is that the griever's uncontradictedevidence was that those contract employees are 3 regular feature of his job, that they are usually there, and that the warehouse requires 11 peogie to operate. In view of this unconzradictad evidence we have great difficulty in totally disregarding the presence of those conzract employees when asssessing the griever's claim. In. our view it would be unrsalistic of us to disregard that evidence and apply the words of the ;raamble literally in this case. NO doubt in the vast majority of cases those words can be taken a- face value! however, when confronted .:ith a situation such as the one described to us, it seems clear thazto do so here would be to ;1-,duly and unrealistically discount the supervisory component of the gr:evor's Job. It can be said, ti fact, that he is responsible for supervising at least ten people on a regular basis. It is also clear that the griever's job involves greater inventory values than those of the Warehouse Supervisors in Rexdale and Hamilton. He also is involved in supplying northern airports, and his warehouse facilities are substantial in. size. All of this would tend to lend support to his statement that in fact he oparates most of the time with a minim= of 11 subordinates and requires that number of employees. using the definition of "very large stockrc:m" in, the preamble, we therefore conclude that the griever s,upervises a "very large stockroom". If our interpretation o- F the s.Jpervisory componentdoesnor deal with the essence of the distinctice, as we believe it does, then we Can also take some support from the decision in the Campbell case (sc>ra) in that we consider that the griever 'I present classification is improper. “\ 9 FOZ all of the reasons setoutabove, therefore, we find that the griever is improperly classified and should be classfied as a Clerk 7, Supply (Bargatitig Unit). The grievance asks for this to be retroactive in all respects to March 12, 1984, which IS the date thaf the $rievor was informed that he was the successful applicant for the new pssiticn and that the position wouldnotbe reclassified to a Clerk 7, Supply. There was some evidence that the job has grown somewhat since Yarch, 1984 and in view of this evidence and the difficulty in deterxining whether the job justified reclassificatia? as early as March, 1334, we consider that we should declare the grievance upheld an6 order retroactivity to 20 days prior to the filing of the grievance in December, 1984. DATED AT LOICON, OhmOo THIS 26th DAY OF February , 1986. JkDJz 24-A Gail Brent, Vice-Chairmz. BETWEEN: IN THE SUPREME COURT OF ONTARIO (Divisional Court) IN THE MATTER OF The Judicial Review Procedure Act, R.S.O. 1980, c. 224; AND IN THE MATTER OF' The Crown Employees Collective Bargaining Act, R.S.O. 1980, c. 108; AND IN THE MATTER OF a decision of the Grievance Settlement Board dated November 1. 1986: ONTARIO PUBLIC SERVICE EMPLOYEES UNION, and JUDY TIMLECK Applicants t : L - and - ' HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS aREPRESENTED BY THE MINISTRY OF CORRECTIONAL SERVICES AND THE GRIEVANCE SETTLEMENT BOARD Respondents NOTICE OF APPLICATION FOR JUDICIAL REVIEW TO THE RESPONDENT A LEGAL PROCEEDING HAS BEEN COMMENCED by the applicant. The claim made by the applicant appears on the following page. THIS APPLICATION for judicial review will come for a hearing before the DivisionsalCourt on a date and at a place to be fixed buy the Registrar of the Divisional Court. The applicant requests that this application be heard at Toronto. IF YOU WISH TO OPPOSE THIS APPLICATION, you or an Ontario Lawyer acting for you must forthwith prepare a notice of appearance in form 3SC prescribed by the Rules of Civil Procedure, serve it on the applicant's lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file, it with proof of service, in the office of the Divisional Court, and you or your lawyer must appear at the hearing. IF YOU WISH TO PRESENT AFFIDAVITS OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE witnesses ON THE APPLICATION, you or your lawyer must, in addition to serving your notice of appearance, serve a copy of the evidence on the app licsnt's lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in the office of the Divisional Court within thirty days after service on you of the applicant's application record, or not later than 2 p.m. on the day before the hearing, wherever is earlier. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Date /9d? - Issued by: Divisional Court Office Osgood Hall 130 Queen Street West Toronto, Ontario M5H 2N5 TO: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO AS PREPRESENTED BY THE MINISTRY OF CORRECTIONAL SERVICES Mr. Doug Milec Ministry of COrreCtiOnS 2001 Eglinton Ave. E. Scarborough, Ontario MiL 4Pl AND TO: THE GRIEVANCE SETTLEMENT BOARD 180 Dundas Street West Suite 2100 Toronto, Ontario M5G 128 AND TO: ATTORNEY GENERAL OF ONTARIO ~ 18'King Street East 18th Floor Toronto, Ontario M5C lC5 ,’