HomeMy WebLinkAbout1985-0782.Davis.86-10-31IN'THE MATTER OF AN ARBITRATION
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THE CROW El4PLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
Between: OPSEU (Leonard Davis)
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Grievor
The Crown in Right of Ontario
(The Ministry of the Solicitor General) Employer
P. Knopf, Vice-Chairman
I. Freedman, Member
W.A. Lobraico, Member
For the Griever: Ci Paliare, Counsel
Gowling and Henderson
Barristers and Solicitorss
For the Employer: R. 1tenson
Senior Staff Relations Officer
Staff .Relations Branch
Management Board of Cabinet
C. Truman
Chief Classification Officer
Personnel Services
Ministry of the Solicitor General
Hearing: August 8, 1986
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AWARD
This case involves a claim by the grievor that he has
been improperly classified. The grievor, Mr. Leonard Davis,
is an offset printer. He is employed by the Ministry of the
Solicitor General at its printing plant located in the .’
Ontarip Police College in Aylmer. Mr. Davis is classified as
an “Operator 3, Offset Equipment”. He alleges that his job
duties and functions are of such a nature that he should more
properly be classified as an Operator 4. In the al tema tive,
it is alleged that even if his duties do not fit within the
Operator 4 classification, the job ought to be reclassified.
in a manner that recognizes the differences between
Mr. Davis’ duties and that of an Operator 3.
In accordance, with the onus, in cases such’ as this,
the Union led evidence. ,The Union’s sole witness was
Mr. Davis. Mr. Davis explained that he had been a’printer
since 1975 and has always worked at the Ontario Police
College in Aylmer. Mr. Davis explained that in the last
eleven years, there have been significant changes in .’
development qf the equipment used and efficiency in the
printing shop. Because of the new equipment, he estimated
that theirvolume of production has increased by close to 100
per cent. However, ten or eleven years ago there were three
staff peop’le in the printing shop, one of whom was par t-time.,
Now, there are still three staff members despite the increase
in volume.
Mr. Davis described his job duties and
responsibilites as taking on ” the complete supervision’ of the
:print shop.” In addition to operatihg and using every piece
of equipment in the shop, Mr. Davis is responsible for
supervising the employees, the machinery, the purchasing, the
assigning of. duties, and the requesting of tenders for raw
materials and equipment.’ Mr. Davis has no supervisor himselE
! with respect to the print shop despite the fact that there is
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a supervisor or general manager of support services for the
College by the name of Mr. Bahr. Mr. Bahr offers no
supervision over the print shop in terms of the printing.
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From the evidence of Mr. Davis, it is clear that the
print shop is a very busy location. It produces books and
pamphlets which instructors use in the training of poli,cc
officers and law enforcement personnel for public employment
in Ontario and elsewhere. In add i tion , all examinations and
tests are printed there. Work is also done for the Ontario
Police Commission by way of a news letter which is put out
quarterly. Also, printing is done for the teaching material
for the Ministry of Correctional Services.
The griever’s duties also include responsibility for
maintaining invcn tory and ordering materials. He seems to
have the power of effective recommenda~tion over which bid to
accept when tenders are elicited.
The grievor gave extensive and articulate testimony
explaining the equipment utilized in the shop and comparing
it to the equipment in place when he began a; an offset
prin tqr. Suffice it to say in a general sense that the
testimony clearly established that the acquisition of the new
equipment, most of which has been put in place in the last
.._~~ five years, has resulted in a very significant increase in
the efficiency of the plant and its ability to produce a
wider variety and higher volume of materials.
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One aspect of the Union’s case gave rise to an
evidentiary issue that ultimately became the main issue in
dispute i,n this case. Mr. Davis tendered through his
counsel, two documents. One is entitled “Operator 3, Offset
Equ ipmen t” and the other is entitled “Operator 4, Offset
Equ ipmen t” . Both documents bear the date April 1964 and the
sub- ti tles “Class Definition” and “Qualifications”. Counsel
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for the Union sought to enter these documents during his
opening statement as the applicable job standards. The
Employer objected, taking the position that the two documents
should not go in alone and instead, the entire Operator
series, including the preamble from the Ministry's Manual
should be introduced altogether. Counsel for the Union
.indicated that he would not consent to the introduction of
the entire series and the preamble because they would be
irrelevant to the issue before the Board. Because there was
no agreement between the Union and the Ministry at the outset
of the case, the Board advised that each party could tender
whatever documents they desired through their witnesses as
they presented their cases and the Board would rule on their
admissibility as the issues arose. Accordingly, the Union
sought to enter the same documents entitled "Operator 3,
Offset Equipment" and "Operator 4, Offset Equipment" through
Mr. Davis. He testified that he had discovered the documents
in his desk when he was classified .or appointed to the
position of Operator 3. He understood the "Operator 3"
document to be the document "that was supposed to have. been
my duties or my position." He says that when he saw the
Operator 4 dxocument, he thought that it was a more accurate
reflection of what work he actually did. On the basis of
Mr. Davis' ability to identify the documents as relating to
his duties and responsibilities, the Board accepted the
documents as evidence.
OPERATOR 3, OFFSET EQUIPMENT
This class covers positions of highly
skilled operators of standard size offset
presses who, under the technical
supervision of a printing unit supervisor,
or the general supervisionof a clerical
supervisor, produces a variety of printed
material by offset lithog~raphy. At this
level employees specialize in the most
difficult printing jobs, where the work
must meet rigid standards and include the application of colour separation techniques.
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~1~0 included are the positions of
operators of extra-large and complex offset
presses, such as the Commander 24” model,
where the operating adjustments are~both
numerous and critical. These adjustments
involve the careful use of micrometers and
feeler gauges, taking into account such
factors as temperature and humidity. A
high degree of care and accuracy in such
operations as mixing inks and fountain
solutions, adjusting tension at pressure
points, and regulating. the flow of ink and
paper is essential for the produc’tion of
satisfactory copy. The operators clean and
recover rollers, clean, polish.and oil the ,machine regularly, make minor repairs and
replace parts, and report major mechanical
problems to the supervisor.
This class also covers positions of
employees in charge of small offset units
who supervise two or three operators
scheduling, assigning and checking work,
keeping records of work done, material
used, arranging for purchase of replacement
parts of major repairs. They operate
equipment themselves, usually for the more
difficult jobs.
QUALIFICATIONS:
1. Grade 10 education, or grade 8 plus
equiva1e.n t combination of education and
experience.
2. At lea&t three years’ experience
operating offset equipment.
3. MechanicaS aptitude, manual dexterity,
good knowledge of advanced offset
technique.
April,’ 1964
OPERATOR 4, OFFSET EWIPMENT
This class covers the position of
employees who supervise large oEfset printing units oE five to ten operators. These units con&in a number of presses and auxiliary equipment used in the production
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of a wide variety of printed material.
Under the general directions of a technical
supervisor these employees oversee' the
day-to-day operations of the unit.
These employees receive orders for
print jobs, direct the plate-making
necessary, lay out the copy, select the
appropriate machines, arrange work
schedules and assign the work to
subordinates. They ensure that deadlines
are met and inspect the work produced for
quality. They assist with.machine
adjustments as necessary and may operate
the equipment themselves for the more
difficult jobs. They train or supervise
the training of new operators and
participate in the hiring of new staff.
They are responsible for the morale and
discipline of.their subordinates and may
make recommendations for promotions,
transfer or dismissal. They are
responsible for the maintenance and repair of the equipment, for arranging cleaning
schedules .and arranging for major repairs
when necessary. They requisition new
supplies, receive and store them, maintain
records of quantities ordered, received and used, and take inventory regularly
estimating future requirements. They also
requisition spare parts for the equipment
and recommend purchase of new equipment
when necessary..
QUALIFICATIONS:
1. Grade lO.education, or grade 8 plus
equivalent combination of education and
experience.
2. At least five years' experience'in
operating offset press and auxiliary
equipment.
3. A thorough knowledge of offset presses
and related equipment, ability to plan
and schedule work effectively, good
physical condition.
April 1964
Counsel for the Union then took Mr. Davis through
various functions that made up the class definitions .on the
documents for the Operator 3 and the Operator 4.
Essentially, it was Mr. Davis’ evidence that the Opera tot 3
class defini tion~ did not accurately reflect his present
,duties and responsibilities. This was so because fh~e
Operator 3 is defined as someone who-works "under .the
technical supervision of a unit supervisor or the general
supervision of a clerical supervisor". As Mr. Davis
explained in his earlier testimony, he"dces not work under
any such supervision. Further, the Operator 3 class
definition outlines a number of pieces of equipment which are
now obsolete and are not at: all reflective of the present
state of technology in the plant. ,Mr. Davis estimates thha t
if he still possessed the same type of equipment that is
referred to in the 1364 job definition, he would require six
to eight persons to produce the same amount of volume that is
now produced. While the Operator 3 class definition is
designed to cover positions~~bf"&mployees in charge of small
uni~ts who supervise two or three operators, Mr. Davis asked
the Board to consider that then modern equipment of the shop
described in the 1964 class definition would be a much larger
shop with greater responsibility to produce higher volume.
Mr. Davis then went through the class definition for
the Operator 4 position. T,he opening sentence of the class
de~fini tion reads: “This class covers positions of employees
wtY0 supervise large offsetprinting units of five to-ten
operators." As mentioned above, although Mr. Davis's shop
does not have five to tenoperators, he equates it to the
same type of shop producing the same type of volume that
would have been contemplated in 1964 when the class
definition was drawn up. In every other respect, Mr. Davis
says that his duties and responsibilities fall squarely
within the Operator 4 class definition.
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The Ministry began to introduce evidence through a
ior Classification Officer to explain the classification
process and how the classification for Mr. Bavis' posi,tion
was determined. However, counsel for t;he Union indicated
immediately that no objection was taken with regard to the
process used by the Ministry. Given that concession, the
Ministry elected to call no evidence and moved that the Union
had failed to present a prima facie case in the grievance.
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It was argued on behalf of.the Ministry that the onus
is upon the grievor to establish that he was i,mproperly
classified either by comparing his job against the job
standards or to show that he was performing the same duties
as someone in another classification. Given that the latter
was not the, contention in this case, the Ministry argued that
the grievor had failed .to show that he was improperly
classified because there was no evidence of the "job
standards" before the Board- It was argued that the
documen.ts that had been tendered with the titles "Operator 3,
Offset Equipment" and "Operator 4, Offset Equipment" with the
class definitions had not been proven to be the class
standards. Instead, they were only established to have been
pieces of‘paper found in the grieyor's deskin 1381. Thus,
i it was submi'tted that the Employer had no case to meet and
that the grievance ought to,be dismissed.
In response, counsel for the Union pointed out that
on the two documents in question, a code number.was contained
up in the right-hand corner which corresponded in the case of
the Operator 3 to the-class code in the position
specification which had been filed on the mutual consent of
the parties. ,This was said to establish on the face of the
document that it is a standard that refers to the griever's
classification. Further, it was. said that the documents on
their face indicate that they are class standards and that
this creates prima facie evidence that the..Board can reiy
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upon. Further, the Board was invited,to draw upon its
experience in matters such as these and recognize that the
documents are in fact the typical class standard documents
that are applicable to situations such as this. It was
submitted that to find otherwise would be to accede to a
strictly technical argument rather than to deal with the
merits of the.case. Further, it was ,submitted that when the
issue first arose at t!e outset of the hearing, the Ministry
had not taken the position that the documents in question
were inaccurate,or inappropriate, but instead that they
should not be entered alone. Thus, the accuracy and the
applicability of the documents ought not to be put in
question at the~end of the ?lay after they had been accepted
as exhibits. The Board was asked to accept Mr. Davis'
evidence as uncontradicted and sufficient to uphold the
grievance. With regard to remedy, counsel for the Union
submitted that the evidence establishes that the grievor
falls into the Operator 4 category and that he ought to be
awarded that classification. The Board was invited to
conclude that the grievor's duties "best fit" the Operator ~4
definition. We were referred to the following decisions as
examples of how the “best fit" approach has been taken by
this Board: OPSEU (Arqo) and Crown In Right of Ontario
(Min,istry of Transportation and Communications) and OPSEU
(Remedeios) and Crown in Right of Ontario (Ministrv'of
Attorney General. On the other hand, we are invited to
conc,lude that the ~duties and responsibilities fall squarely
within the Operator 4 category. Finally, in the alternative
it was argued that the Board ought to apply the approach
indicated.in the case of OPSEU (Berry:) and Crown in Right of
Ontario (Ministry of Community and Social Services) where the
Court has recognized that it is within the remedial authority
of this Board to require the Employer to create a new
classification when the evidence establishes that the
existing classifications are not appropriate.
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THE DECISION
Dealing first with the evidentiary issue, we do not
accept the Ministry’s position that the documents tendered by
the Union cannot be accepted as the class standards. We
recognize that the Grievance Settlement Board is an
adversarial. tribunal where the obligation is upon each party
to present its own case and the responsibility of each panel
of the Board is to decide each case’ fairly, judiciously and
only upon the ‘evidence presented JO it in the context of the
hearing. To do otherwise would be a denid of natural
justice. However, this Board does not operate in a vacuum.
The Board is familiar with and aware of the sys tam of job
standards in this sector. The documents tendered by the
Union are immediately recognizable as the typical format of a
job standards document. Further, the documents tendered, in
one case, bear the job class code number appl.icable to the
job specification which was accepted as being applicable to
the grievor.. Further, while not referring to the document as
class standards, the grievor was able to recognize the
documents as outlines of the duties expected of him in his
classification and in the classification above his current
pay rate. Thus, he ‘could recognize the documents in essence.
as the applicable class standards to the grievance. Finally,
because the Ministry had indicated that the documents ought
to be considered incomplete at the outs8 t, but had not argued’
that the documentwas inaccurate or anything other than a job
standard, it would be unfair to accept an argument that the
document could no longer be treated as such after the Union
had closed its case. For all these reasons, we must conclude
that the Union had proven the applicable job s tanddrds as
part of its case.
Having reached that conclusion, the Board mus.J ask
i tselE ‘whether the Union’s evidence sd.ti.sfies the onus of
proving that the grievor has been improperly classified.
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Because the Ministry called no evidence, the grievoc’s
evidence was uncon trati ic ted. We may add, that he was a very
credible witness who was thoughtful and careful in his
answers to questions in examination-in-chief and
cross-examination. We have no hesitation in accepting his
evidence as being accurate. Ris evidence makes it clear that
while he does fit within many of the aspects of the
’ ‘~Ooerator 3 class definition, that standard cannot be .L
considered accurate to any large degree for the work that the
grievor is no~w doing. The Operator~3 position is clearly one
of a highly skilled operator, but applicable to one who works
under the supervision of a printi,ng unit supervisor or the
clerical supervisor. This simply does not apply to the
grievor. Instead, he is ‘the supervisor of the shop and runs
the shop that produces a volume equivalent to a plant tha.t
would have been staffed by five to ten operators when the job
classifications were established in 1964.
.‘We must conclude that it would be incorrect to apply
the job standards simply~‘on the basis of the number of
employees in the shop. To do that, would ignore the
dif.ferences in work pressure, responsibilities, and the
technical and organizational skills required to produce a
high volume of output on a continual,basis.
It is our conclusion that the class definition and
standards of .the Operator 4 are an accurate description of
,.the griever’s present duties. It recognizes his supervisory
role and his function to oversee arid’ participate in the
day- to-day operations of the unit. It further recognizes his
QOWer and ability to make effective recommendations for
promotion , transfer or dismissal. as well as requisitioning
supplies and equipment. These characteristics are integral
to the griever's present responsibilities and.are absent in
.the class deEinition or standards of an Operator 3.
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For all these reasons, the Board concludes that the
grievor, Mr. Davis, has been improperly classif ied, contrary
to the collective agreement. The Employer is ordered to
reclassify Mr. Davis as an Operator 4, Offset Equipment as of
twenty days before the filing OE this grievance. ‘Further,
the Employer shall pay to the grievor any retroactive
payments due to the grievor as a res~ult of the differential
between the wage scales of his old classification and the
classification of Operator 4. The Board retains jurisdiction
to deal with the implementation of the award should our .’
assistance be required.
DATED at Toronto, Ontario, this 31st day of oc’tober, 1986.
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W. A. Lobraico, Member