HomeMy WebLinkAbout1987-2450.Smellie and Kontor.91-08-22DES GRIEFS
IN TRB RATTER OF AN ARBITRATION
Under
TNB CRONN EMPLOYEES COLLNCTIVB BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
OPSED (Smellie/Kontor)
Grievor
BEFORE:
R. Blair
Counsel
Cavalluzzo, Hayes & Shilton
Barristers & Solicitors
The Crown in Right of Ontarid
.(Ministry of Government Services)
Employer
P. Knopf
3. Carruthers
D. Walkinshaw
Vice-Chairperson
Member
Member
PORTHN L. Thomson
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart, Storie
Barristers & Solicitors
HEARING June 29, 1990
December 12, 1990
July 17, 1991
P
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DECISION
This is a classification case. The grievors claim to
be improperly classified as Steam Plant Engineers 3 -
Atypical. They seek an order declaring their proper
classification to be that of an Operational Shift Supervisor
OM 15 which would put them within the managerial level of
service. In the alternative, they arc seeking a Berry Order.
We cannot avoid starting this analysis with the
recognition that although classified as Steam Plant
Engineers, the grievors do not work in or near a steam plant.
Instead, they work as Operational Technicians in and about
Queen’s Park, monitoring and controlling “the operation of
mechanical and electrical systems providing a controlled
environment within a large group of government offices in the
Queen’s Park area.” In a nutshell, the grievors work with
all the systems that provide the heat, cooling, water and
electrical services to the Queen’s Park complexes. The .-
systems they work with include plumbing, heating, air
conditioning, ventilation and fire protection. Their Job
Specification as accepted by the Union is basically accurate
and set out as Appendix “A” to this Award. The Class
Standard for Steam Plant Engineers 3, the grievors’
classification, and the series for steam plant personnel are
set out in the Class Standards and appended hereto as
Appendix “Bn. The Position Specification for the Operational
Shift Supervisor at the OM 15 level is set out as
Appendix “C”.
We had a great deal of evidence from Tibor Kontor who
was put forth by the Union as the representative grievor.
His evidence amplified and put life into the details listed
in the Job Specification. The evidence did stress the fact
that the only “steam distribution* involved in this job is
with respect to monitoring the steam supplied to the
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facilities which is purchased from an outside contractor.
The grievors have no involvement with the source where the
steam is produced. Quite simply, the steam is piped into the
Queen's Park system and the grievors monitor the flow of the
steam to ensure the proper level is supplied. If any
problems develop, the grievors' only task is to call the
supplier of the steam who is then responsible for
rectification. The grievors estimate this responsibility
involves 5% of their time, whereas management suggests it
could occupy up to 15 to 20%. But nothing ultimately will
turn on this difference in percentage.
Basically, the picture the Union's evidence paints of
the grievors is that they are highly skilled and dedicated
employees who have responsibility for a number of systems
that provide a controlled environment to Queen's Park. These
grievors have, working with them, a ser.ies of trades people
who perform maintenance, repair and,preventative maintenance.
on c .complex array of equipment and facilities. The grievors
are familiar with the equipment, knowledgeable in reading the
information provided on a central control console and can
determine and get underway any correctional measures
necessary as they arise.
The grievors' duties and responsibilities vary
significantly according to whether they are working the day
or the night shift. ,It is agreed that there is no supervisor
on duty with the grievors on the afternoon, midnight and
weekend shifts. This is a 24-hour, 365-day a year operation.
The grievors are required to rotate shifts and they are quite
oftenworking without direct supervision. Otherwise, on day
shifts, a Shift Supervisor is present. But in the absence of
a Shift Supervisor, the grievors act as the on-site
supervisor of the trades people reporting to them.
The only real factual dispute between the parties
results from the Union's usage argument whereby the Union
claims that the grievors were doing substantially the same
work as the Shift Supervisors, OM 15's, within the facility
and therefore ought to share that classification. The Union
relies on documents such as Exhibit 9 which represents
minutes of a meeting held on April 3, 1989 wherein Gerry
Quidzinski, the Operation Supervisor at the time, was
recorded as saying the following:
Shift Supervisors have employees assigned to them,
and have managerial responsibility, over and above
their operational responsibilities. Operations
Technicians have the same operational
responsibilities while on shift as a Shift
Supervisor.
Mr. Kontor also testified that in February or March of.1990
,he was assigned the acting position of an OM 15 and 'claims
his-roles and responsibilities before and after the
temporary appointment were "absolutely the same."
Thereafter, Mr. Kontor was formally appointed to the position
of Shift Supervisor OM 15 and claims the only difference in
his responsibilities was that he was then expected to perform
appraisals of the trades persons. However, he was never ever
called upon to do so before his retirement shortly
thereafter. On the other hand, in cross-examination,
MIT. Kontor candidly acknowledged that one change in his
duties when he became an OM 15 was that he became responsible
for scheduling maintenance for the entire operation whereas
before he had only scheduled maintenance in discrete areas.
Further, he conceded that prior to his promotion, he never
had any formal authority to discipline, sign overtime,
approve vacations, or schedule days off work which are all
responsibilities of an OM 15.
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The Ministry's evidence was intended to show several
differences between the OM 15 Shift Supervisors' and the
.grievors' responsibilities at the time of the grievance.
Specifically, Mr. Joe Wilson, the Building Services
Supervisor in the Property Management Branch, testified that
the Shift Supervisors .each were assigned a specific area.of
responsibility, for example air systems, water systems or
electrical equipment. Responsibility over tradesmen in areas
other than those particular specialties would differ
regarding.to which supervisors were on duty at any given time
and depending onwhether a Shift Supervisor was present at
all. But there was a clear nexus of responsibility . identified by Mr. Wilson relating.to Shift Supervisors and
the discrete trade areas and tradesmen that was unique to the
Shift Supervisors. Further, Mr. Wilson identified different
levels of monetary authority which were set out by which the
grievers, as opposed to Shift Supervisors, could call in
emergency contractors without higher authorization. In
addition, while the Operations Technicians did do reports for
Workers's Compensation purposes, if WCB required a "Form 7"
this had to be filled out by a Shift Supervisor.
The distinction between the grievors as Operation
Technicians and the Shift supervisors was summarized from
management's points of view in the cross-examination of
Mr. Wilson when he was asked to agree with the proposition
that the Operations Technicians "fill in the shoes" of 'a
Shift Supervisor in his absence caused by shift schedules,
vacations or illness. Mr. Wilson responded:
he [the Operations Technician] would not be
required to do the supervisory part - He'd still be required to fill in the operational duties ,of the Supervisor. [Emphasis added]
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Mr. Quidzinski echoed this concept by explaining Cxhibit 9
quoted above on page 3 as meaning that the Operations
Technicians may be responsible for their own shifts in the
I sense of "operational responsibilities", but he
differentiated this from the "supervisory" responsibilities
expected of the Shift Supervisors.
The Argument
Counsel for the Union stressed the inappropriateness
oE the existing classification for the grievors, arguing that
there was not a sufficient relationship between the grievors'
responsibilities and those in the steam plant facility which
is critical to a proper classification within that series.
It was said that the Class Standards do not contemplate the
type of duties performed by the grievors that are set out in
the Job Specification and the mere fact that the grievors
have been classified as "Atypical" is no,t sufficient to save
.the classification. It was said that there was no archetypal
resemblance or close enough relationship to the "core
features" of the archetype oE the classification to make a
steam plant series appropriate. Indeed, counsel stressed
that the job specification and duties as outlined by
Mr. Kontor were so different from those set out in the steam
plant series that the series must be considered "out of the
ball park" or like a "shoe that doesn't fit." On this branch
oE the argument, the following cases were cited: Kelusky et
al. and Ministry of Transportation, GSB File 1098/86,
December 6, 1989 (Wilson), Jagger et al, and Ministry of
Consumer and Commercial Relations, GSB File 696/89, April 3,
1990 (KnopEl, Archer and Ministr y of Transportation, GSB File
280/90, November 22, 1990 (Keller) and Kuramoto and Ministry
of Natural Resources, GSB File 46/90, September 10, 1990
(Kaplan).
The Union then proceeded to argue that if the "usage"
test is adopted, the evidence of Mr. Kontor should be
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accepted as showing that the grievors' duties and
responsibilities are substantially similar to the OM 15
classification. The Union conceded that there were
differences in the jobs done by Mr. Kontor as an OM 15 and as
an Operations Technician, but it was said that these
differences only went to the supervisory type of functions
with regard to the authorisation of overtime and vacations
and which are actually performed only to a minimal extent by
the OM 15~'s. It is argued that there is a substantial
similarity in the core features of the two positions and
therefore the OM 15 ~classification is appropriate. It was
submitted that this Board has the jurisdiction to order that
the managerial classification of OM 15 is a proper
classification as a result of the following decisions:
y of Government Services, GSB File 840/84, Landr y and Ministr
April 10, 1987 (Gorsky) and Canning et al. and Ministry of
Gove'rnment Srvices, ,GSB File. 558/84, July 5, 1985 (Brent).
Counsel for.the Ministry argued that the
classification assigned to the grievors was proper. We were
asked to look at the Class Series pertaining to steam plants
and accept that the nature of the jo-b being performed by the
grievors is similar in its core to the type of work performed
in the assigned classification. We were asked to look at the
grievers' responsibilities by way of analogy to the types of
duties and jobs performed inthis series and accept. that the
responsibilities for air conditioning and environmental type
of facilities can be analogized to the steam plant
responsibilities set out in that class series. The fact that
the grievors do not work in a steam plant was said to be
covered by~the designat.ion of Atypical and the staffing note
at the end of the class series dealing with rates 'of pay. In
support of his argument, counsel for the Employer relied upon
the following case which deals with atypical designations:
Kuntz and Ministry of Housing, GSB File 85/89, September 20, -
1989 (Verity).
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With respect to the usage argument, counsel for the
Ministry argued that the Union’s position ought to fail
because of two key areas. First, it was said that the
evidence did not establish that the grievors undertake the
supervisory responsibilities expected of an OM 15. Secondly,
it was argued that the evidence establishes that the OM 15’s
were expected to take on specific areas of responsibilities
related to equipment which was not undertaken by the
grievors. Hence, it was said that a usage argument had not
been established by the Union.
The Decision
This Board is sensitive to’ the fact that the task of
classifying the Civil Service is a very difficult one. There
are thousands of different positions across the Province and
each individual job cannot attract a specific classification.
This would be unworkable and unnecessary. Hence, general
classifications are necessary and neither this Board nor
common sense demands that each job have an “exact” fit with
the classification assigned to it. Hence, this Board has
adopted the “core functions test” set out in the Kelusky,
u, and Jagger cases above and has allowed management to
continue the practice of assigning atypical classifications
where appropriate.
However, the fact remains that this Board has then
jurisdiction and responsibility of ensuring that people are
properly classif ied. As articulated in the Archer decision
at page 10:
We do not quarrel with the fact that even in the
post Berry era jobs can be classified as atypical.
Indeed, numerous decisions of the Board have maintained that. But, since Berry, the Board has
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made certain statements about when it will consider
an atypical classification appropriate.
Essentially the Board has stated that the essential
elements of the job,classified can't vary widely
from.the core features of the archetype of the
classification.
When we examine the core features of the archetype of
'the classification of a Steam Plant Engineer, we cannot avoid
the fact that the core feature of those positions is that it
is involved in the operation,' repair and maintenance of
"steam heating and power plants." As the Class Standards
themselves set out, the allocation to the particular
positions in the series is dependent upon "the total therm
hour rating of the plant and the levels of the
responsibilities assigned to the ~incumbent.". The allocation
to the level in the series is dependent on the plant class
and the Stationary Engineer Certificate held by the
incumbent.. None of this is even'applicable to any of the
functions performed by these ,grievors. Quite simply, 'they
have_ no responsibility for a steam plant. They do not hold
nor are they required to hold a stationary engineer's
certificate. They cannot be assigned a level within the
series dependent upon the therm hour rating of the plant
because they do not operate a steam plant. While there may
be situations where counsel for the Ministry's,able argument
by analogy may be appropriate, the argument cannot succeed in
this case because of the difference between the steam plant
and the operations run'by these grievors. Further, there was
no evidence that will allow us to draw any analogies between
the equipment monitored and maintained by the grievors with
that of a steam plant. Simply because the two functions may
both be involved with inside environmental controls is not
sufficient. to say that the core features of the job are
essentially the same. Put another way, the maintenance,
repair and operation of one piece of machinery cannot be
said, absent clear evidence, to be analogous or the same core
function as main~taining, repairing and operating another
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machine. Steam plants are unique and require specific
training for their operation. The grievors do not have that
training but are highly skilled in their own regard.
H’owever, we cannot agree with management that they are
properly classified within the steam plant class series.
This then leads to the question of whether they would
possibly be classified as OM 15. We agree with the Landry
and Canninq cases that we have the jurisdiction to declare
that the grievors could properly be classified within this
managerial level of service. However, we do not agree with
the Union that a case has been made out that this would be
appropriate. We were impressed with the evidence that
established that, from an operational point of view, when the
grievors are on duty on the shift and no Shift Supervisor is
present, their operational responsibilities are similar to
those of the OM 15’s. However, the OM 15’s also have a
significant level of general supervisory duties which makes
them separate and distinct from that of the Operation
Technicians. Their major responsibilities include preparing
operational budgets which the grievors do not. While the
grievors may have input into these ultimate decisions, they
do not prepare those budgets. Further, the Shift Superv’isors
are responsible for supervising subordinate staff by way of
assigning work, bearing the responsibility for discipline and
responding formally to grievances at the first stage. It is
true that the evidence establishes that this type of
responsibility need rarely be exercised by the Shift
Supervisors in the context of this operation. We were
extremely impressed with the fact that the grievors are
considered highly professional employees and can handle a
vast amount of problems on their own and rarely, if ever,
attract the need for the exercise of disciplinary
supervision. Nevertheless, the fact that the OM 15’s are
empowered or expected to exercise this authority and the
gricvors are not is significant. The difference is
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fundamental to the differentiation between an Operations
Technician and a Shift Supervisor. The latter is considered
a managerial position outside the bargaining unit. Then
Union's success in this case depends upon a usage argument
and its evidence falls short of establishing sufficient
similarity between the responsibilities and expectations of
the grievors and those of the OM 15's. Hence the
argument must fail.
usage
As a result of the above analysis, we are left with
the conclusion that the grievors are improperly c lassified as
Steam Plant Engineers 3 but we do not accept that they ought
to be classified as OM 15's. Management has the
rsponsibility of determining the proper classification for
the grievors. Hence, we order the Employer to set about
creating a proper classification for the grievors.
Couhsel for the'Employer asked that the Employer be
given six months in order to effect this reclassification
because of the complex nature of the problem and'of the
practical difficulties in responding to this matter. The
Board. is sympathetic to the Ministry's problems. However,
this was a grievance filed in 1987 and it will serve nobody's
purposes to prolong the resolution of this matter for a
further six months. The Union has asked that the'matter be
resolved within 90 days. In an effort to be realistic, we
order that the Employer determine the proper classification
and wage rates within four months following the receipt of
this deci,sion.
In conclusion, the grievors are improperly
classified. The Employer is ordered to determine the proper
classification and wage rates w'ithin four months of the
receipt of this decision. The grievors are entitled to
compensation for 'the difference between the wage rate paid to
them and that of the new~and proper wage rate which is to be
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set retroactive to twenty days prior to the date of the
grievance with interest. We remain seized to deal with all
the issues arising from the implementation of this decision.
DATED at Tot-onto, Ontario this 22nd day of August,
1991.
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c monitor and mntrol.the opuaticm of mechanical asd elect+lc~~ sy.tss provvlomq a eonr~o
nvfroment within a group of large government office buildings in the Queen’s Park area.
otal capacity is in axces. of 100 lpillion N.T.U.‘s pr hour and systems include plmhfnq,
eating. air cmditioning.wntilatioz, and fire ~roteotion.
k”o”le.dga of the sontrol., oparatica.1 features and location of
Dystcms and equipnt In assiqmd axe. together “ith their de&
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Not uceadin# scr
so ta 134
l35 to 400
Over 401
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.swtmber I. 1070.
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-be’ 1. 1970.
,svtnbsr I. ,070
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Scmembcr 1. 1970.
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Mlzmly: Haint.nulC. S.NiC.0
WI k-06 B..uq and POI.r
SWlZSl st.m Plant lwtn”r
cuss cart 40114
(309 Ramble ior WlAitlano)
s*ptnbar I. 1970.
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1. PWpO” 0‘ po”tio” wl” wn ma Oliom .+e, lo supervise the daily operet~one of the electrical, electronic sod mechanical
rystemr thet provide II cootroIled envirowent to thq-Quaen’s Pack Complex buildin I,
.I. and be responsible for the operational condition end efficient operation of rpecr:~c
segmente of Che phyricsl plant.
/
5. surmmt 01 Mli.3, Rmwn‘ibi,i,i” ,now it uwmw rnirml?,
lnder the general rupervieion of the Operations Supcrviror, incumbent has shift
reeponribility for’electricel, electronic and mechenicel eystems operecion for e-~,
:omplex of 183,600 squere metree houeing epproximetely 8.000 government perronnel!
1
1. Supervises the operatim of the eaviromencd systems of Queen’s Park Compleli
including eoviroamentel costrole, electricel lighting end Power distribution!
domestic wetcr and wesCe, ad fire protaecion to ooeure safe, comfortable,
controlled environment on e continuoue baeie. j :
!. Honitorr through the remote maiitoring ryeterns the operecion of buildings in.
the complex, eeeigoing eteff to inveetigate, verify or correct any
ebnormelitiee that cezw~ot be corrected by the automated systemr. ; i
I. Remote moaitore the environmentel and protection eyeteme that are connected ,o
Centre1 Control for other amignad buildings. / /
,. Evelutee infoneetioa provided by rcmota electronic eurveillance end control
r
syeteme, determining eppropriete reeponee by rubordinate staff, other proper,y
mena~eme~t itaff or contracted service eteff.
(cont’dl/i i
i
awli‘icmon 011”,. ‘4 :
;rogreesively raaponriblc experience in the operation of major commercial buildings’
!nvironmentel ryeterns. Supervisory experience in a related technical cnvironmenc~
idministrative skills to eetablish rhift echedulea, aesign work. prepare cost andj
Nudge ercimacer. Good ore1 and vricren Coo!aeunication skills to prepare
nscructione and reports, and deal with a variety of client and contract personnel.
Good knowledge of inspection practices releted to l nvironmenrel plant opcracing ,.
systems. conditioned air distribution eyetome, electrical power distribution, ? and
fire protection eysteme nsociatcd with modern, sophisticated industrial and
comercial buildinpr. Extensive knowledge of the operation and msinrensnce of ;
syrrems and equipment in one of the following four areaa. WAC, water and wdsfe,
electrice ayeterns, controlr and rurveillanca. Good vorkin& knowledge of applicab,le
building. fire end safety coda. Knowledge of F.I.S., budgeting. cost control and,
personnel precrices.
Work it performed under the generel eupenision of the Opetations Supervisor. I
Cuidence is else l veilebIe from ministry and divirionel manusls md directives, ad
from legirlecioo governing carrein prectice*. Judgemeat ir exercised to: select the wst l pprop+ete mode of pleat operetion during om rhift vichin established
buidelinsa; ~enelyre l veluere informerion from remote monitoring systems LO detemi!ni
Ippropriete ection:‘determiae beet use of resourcee to resolvc/eddresa problem, id:
rubordinete staff, emtractor, or property aenegement rechnicel experts; follov-ud
:a ensure necessary corrective action her been taken; erasure proper operation.
raintenanca end preveotive meinteeence ie carried out on eyarems and equipment fad
wn specific segment of physieel plent operation, including’plsnning md schedulirig
,ork. and preparing cost and budget estimates; supervisa subordinate etaff.
-Has l hift reeponeibility for eneuring continuous setisfecrory operation
Aecrric, electronic and mechenicel eyetems including 64 l ir handling systems,
wanrive refrigeretioo and l leetricel paver and distribution systems, ie: remat
mniroriry of 134 l nvironmenrel l yetemo. Aleo bee reeponsibility for fire, elev
md eovirowentel wnirorirq (after houre) of l pproxiwtely 30 government-owned
uildiops.
‘ersonnel-Directly rupervisee (en everego of 5) operetioael meincenance mechanic:
‘inancial 4 Uererial-Accouaceble for the operetionel coodition of physical plant
cock of toole, earvice pate l ed mteriel, during rhift.
noact of Errors-Feilure to identify and correct cause or nature of problem or l ficiency could leed to unneceremy mete incurred by major repairs or sy~cems l xlure, and’dierupc proparty menegewet aad client pro‘rw service delivery.
nremal-Re;ulerly virb divisional technice reeource l psci~liets, and with all
Got cliente within thoee buildi- l erviced to l rchaqc infotmarion on
peretiooal problem end reoolve problem to client serirfection.
xternel-A# required with rcprerenterivee of service contracting firms and with
zs to diecuee and resolve mettore releting to operetiooel problems.
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STATEPENT OF MAJOR RESPONSIBILITIES (cont’d)
5. Is respmsible for the operational condition and efficient operation of a
specific segment of the physical plant, each incumbent having responsibilit::
for one of the following four areas: WAC; water and waste; electrical sysce:
controls and surveillance.
6. Ls responsible for: ensuring that assigned equipment (one of the four areas
outlined in #5) ir.innpected regularly; that repair work and scheduled
preventive q eincenance ia carried 0%~ to acceptable standards; recommending
‘repair, modificrcioo or replacement of systems or components including cost,
specifications, recommended make, model etc; recommending changes LO operatic
or maintenance procedures.
7. Participates with supervisor end Property Manager in preparing operating budg
with emphasis on own area of specific segment of pbyrical plant. I
8. Supervises subordinate staff, assigns work, maintains discipline and responds
formally to $rievances at the first rrtsga.
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,maiorrin D continuow satisfactory environasnt.
imschsnicsl, electrical sad electronic systems that pmvide s coatroll~d
lenviroamaat. This raquirenent ie rrroagcr sad vidsr in scope than the 16 lsvel !
benchturk which is cor#csrmd with on-going build+ maiaCmams and minor repairs !
ia a hospital (HCS hsndlrs major rapsirs sod iqroveWnts), (coat’d) I
,lfW-t Stron~cr than 16; Ueskrr thsn 16
Poritioa reporte to tha Oparstions Supsrviror ubo. dapandti on the shift, may 0r
,msy n;! bs ~ifte~,svsilsbls. In rsriour or l rrgency situationa. the
opemt~ons supervrsor 1. conaultad. Position hss rsspasibility for major air
Ibandlmp. rsfrlgcrstmn, wstsr and slectricsl distribution systm, using
‘judgamnc to ascsblish shifts, ansign York, identify ad s~sure tesolutioa of
problms affscring the envirotmeat in s Isme. cmler. hiably-populated group of !. _. . ..~
(conr’d) I
l ccouarsbility of the 16-level Benchmsrk. ,
iParsonnel-Positioo has l -11~ staff thm tha 14 level b=Wrk sad s lsrgsr _
/ata!I;ths. the Lblevsl Benchmark. The nature of sctivitias carried out by
p~art.~as subordinaL. is more diverse Ch‘(l the 10-1*~.1 ad lSi:o~:i~:Sd than the
work prfomd by the lblevel Benchmsrk.
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