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HomeMy WebLinkAbout1985-0494.Fenske.87-10-20IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: Before: OPSEU (Peter Fenske) - and - The Crown in Right of Ontario (Minisc,ry of Government Services) R.L. Verity I.J. Thomson --W.A. Lobraico Vice-Chairman Member Member For the Grievor: A. Ryder counse 1 Gowling & Henderson Barristers & Solicitors v For the Employer: E. Hipfner Staff Relations Officer Personnel Services Branch Ministry of Government Services Hearing: September 23, 1987 Grievor Employer . SUPPLEMENTARY DECISION On May 14, 1985, Peter Fenske filed a Grievance which alleged that his position o.f Fire Protection Systems Inspector at the Ministry's Queen's Park District was improperly classified as.Services Officer 1. He sought reclassification at the Services Officer 2 level. Following a four day hearing, the Board issued a Decision dated March 30, 1987 which found that the Grievor was misclassified as Services Officer 1 but was not entitled to the classification sought. The thrust of the Board's award was that although the Grievor performed most, if not all, of the core duties of the Services Officer 1 classification, newly acquired duties and recognixed expertise in the electrical discipline of Fire Alarm Systems placed the Grievor beyond a comfortable fit within the Services Officer 1 Class Standard. Judgment Following the rationale of the Ontario Divisional Court in the Judicial Review of the Carol Berry Award (released 1986), the Board directed the Employer "to find or to March 13, create" an appropriate classification for the Grievor. The Board remained seized in the event of any difficulty with the implementation of the Award. -3 - Subsequently on June 3, 1987, the Ministry wrote the follow- ing letter to the Grievor's counsel. 'Further to our recent telephone conversation, the Ministry has reviewed the class standards for the maintenance series, and has selected an appropri- ate classification for the Fire Protection Systems Inspector position which Mr. Fenske occupies. That position will be reclassified as Highway Equipment Supervisor 2 - Atypical, and Mr. Fenske's salary will be adjusted to the maximum of the range for the classification, $699.42 per week. . . . The salary revision will, of course, be retroactive to the date of the filing of the grievance. I have attached a copy of the reIevant class standard for your information. We will await your response before implementing this change.' The Class Standard selected reads as follows: 'HIGHWAY EQUIPMENT SUPERVISGR 2 CLASS DEFINITION: This class covers positions in the head office of the Department of Highways in which the employees perform liaison and technical duties related to the operation of equipment used in the construction and maintenance of highways. The employees inspect the operation of district garages and equipment, making written reports and recommendations on their findings; and/or they may control the receipt and distribution of all Department of Highways new equipment and the transfer of surplus equipment. As Equipment Inspection Supervisors, they investigate the use of equipment throughout the province, examining its condition, recommending repairs, continued use or disposal. As experts in the auto mechanic field they advise Garage Supervisors on methods of repair and maintenance of highway equipment, including the analysis of cost repair records. They supervise tests of new equipment and attachments. They also investigate the use of new types of paint, installation of signs, lights etc., pertaining to highway equipment. On assignment of the Senior Field -4 - Equipment Supervisor they oversee the operation of specialized crews and equipment such as the tree saver, well tester, deslicker and mudjacker. This class also covers the position of the Equipment Distribution Officer, who supervises the receipt and distribution of new-equipment and the transfer of surplus equipment. Under the general supervision of the Equipment Engineer he performs quality control inspection of equipment at manufacturer's premises. This may include expediting the construction of equipment being built under separate contract to ensure the timely arrival of components at the Central Garage. He arranges the transportation of new equipment both into and out of the Central Garage and supervises the transfer of used equipment from one District to another or for disposal and prepares lists of equipment to be replaced. QUALIFICATIONS: 1. Preferably Grade 10 education, possession of Department of Labour Motor Vehicle Repairers licence, class "A'. 2. At least 2 years' experience as a Highway Equipment Supervisor 1, or an acceptable equivalent of education and related experience. 3. Ability to prepare and present clear, cone reports either verbally or in writing.~' se The Union took issue with the proposed Class Standard. Accordingly, the matter was remitted to the Board. At the supplementary hearing, no oral testimony was adduced and the matter proceeded by way of brief submissions. The Parties were agreed that the Board's Decision I. contemplated that the Grievor was entitled to a higher classif ication . -5- than Services Officer 1. Mr. Ryder maintained that the classification selected did not reflect the Board's Decision and did not accurately reflect the Grievor's current responsibilities. Be maintained that there was a direct relationship between the pay level and the degree of responsibility required. It was Mr. Ryder's contention that the Class Standard selected which provided for a mere $12.56 weekly increase (anincrease of approximately 1.83%) was taken in bad faith and made a mockery of the Board's award. Secondly, he contended that the language of the Highway Equipment Supervisor 2 Class Standard was less appropriate than the rejected classification of Services Officer 1. Finally he argued that, unlike the Services Officer 1 classification the proposed Class Standard allowed for no overtime entitlement. By way of remedy, Mr. Ryder urged the Board to take the matter out of the Ministry's hands and order the Employer to create a new classification to resolve the impasse. On behalf of the Employer, Ms. Hipfner rejected the notion of baa faith and argued that the proposed Class Standard was a good fit in its recognition of inspection duties and acquired expertise. Initially, she contended that in all likelihood a Class Standard could not be found which would incorporate the Grievor's added responsibilities. However, she modified that position and candidly ,, acknowledged that the Ministry may not have canvassed all existing Class Standards. Further, she admitted that the working conditions component, namely overtime entitlement, was overlo,oked. Ms. Hipfner ~maintained that the details of the salary component of a Class -6 - Standard should not be placed before the Board. In addition, she maintained that it was Management's position that the Board .does not have jurisdiction to order the creation of a new classification. The Employer's final argument is without merit., The Board's Decision of March 30, 1987 required the Employer to find or create a classification which accurately reflected the Grievor's current responsibilities. In making that order, the Board followed the rationale of Mi. Justice Reid in the Judicial Review of Carol Berry, et al. Portions of that Judgment merit repetition. At p. 13, Mr. Justice Reid states as follows: 'The question that does arise is whether the Board has power to require the employer to find or create a classification for grievors. I think it had that power. Its authority under s. 19 of the Act (Crown Employees Collective Bargaining Act) is untrammelled. It ~"shall decide the matter". Simply to dismiss the grievances when it acknowledges that thee grievors are wrongly classified is to empty the grievance procedure.of any meaning. It is a commonplace of the law that the existence of a right implies the existence of a remedy.' . . . . 'Classification is not a mere matter of title, it is a matter of money. The employer has given grievors added responsibility yet refuses to compensate them accordingly...' And at p. 14: 'The object of arbitration boards, both in the public. and private sector, is the resolution of differences. That is the mandate of this Board...' . And at p. 15: 'If the.Board concluded that the classification was wrong, its mandate was to effect a proper classification. Its jurisdiction is unrestricted. Its mandate is remedial...' In a classification grievance, the onus of proof is upon the Grievor to establish, upon the balance of probabilities, that he is misclassified and that his current duties and responsibilities justify the classification sought. However, where the Board makes an order, as it did in this case, which requires the Employer to find an appropriate classification for the Grievor, there is a burden upon the Employer to justify the proposed classification in the event of a dispute. On the basis of the brief submissions presented, the Board is satisfied~ that the proposed classification is notappropriate and is not a good fit. We would agree with the Union's submission that the classification selected is less appropriate than the rejected class if i’ cation of Services Officer 1. I However, the Board cannot find that there was any bad faith on the Employer's part in the selection process. Based on Ms. Hipfner's own submissions, the Employer may not have adequately canvassed the existing Class Standards. Obviously, the Employer ,. failed to consider the working condition component of the Class Standard selected. i ,.’ -8 - L. . . From a remedial standpoint, the wage structure of the proposed Class Standard is a relevant consideration which .the ,Employer must address in order to comply with the Board's findings of added responsibilities and acquired expertise. In our opinion, the rate of pay of the proposed classification is totally inadequate to achieve compliance with the Board'~s decision. In the particular circumstances of this case, the Board is satisfied that the matter should be reconsidered-by the Ministry. Accordingly, the Employer shall be given 30 days .from the issuance of this Award to properly classify the position. Failing agreement with the Union on the selection of an appropriate classification, the Employer is hereby ordered to create a classification which accurately reflects the'Grievor's duties and responsibilities. DATED at Brantford, Ontario, this 20th day Of :October, 1987. * . G .5=-44f, R. L. VERITY, Q.C..- VICE-CHAIRMAN /,fh!ih 4.e W. A. LOBRAICO - MEMBER