Loading...
HomeMy WebLinkAbout1988-0048.Hepplestone.92-03-15 ONTARIO EMPI. O¥/~$ DE LA COURONNE CROWN EMPLOYEES DE L 'ONTARIO GRIEVANCE C.OMMISSION OE SETTLEMENT REGLEMENT BOARD DES GRIEFS ~80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. MSG 1Z8 TELEPHONE/T~L~:'PHONE; (476) 326-1388 180, RUE DUNDAS OUEST, BUREAU 21~, TORON~ (ONTAR~]. M5G IZ~ FACSIMILE/T~L~COPtE ~ (416) 326-~396. 48/88 IN THE MATTER OF AN ARB[TRATION Under. THE CROWN EHPLOYEE8 COLLECTIVE B/~GA~N~NG ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Hepplestone) Grievor - and - The Crown in Right of ontario (Ministry of Culture and Communications) Employer BEFORE: N. Dissanayake Vice-Chairperson J. McManus Member C. Linton Member FOR THE G. Richards GRIEVOR Senior Grievance Officer Ontario Public Service Employees Union FOR THE D. Costen EMPLOYER Legal Services Branch Human Resources Secretariat Management Board of Cabinet HEARING October 4, 1989 March 2., 1990 January 23, 30, 1991 DECISION Mr. Alf Hepplestone has grieved that the position he holds at the Ontario Science Centre (OSC), is improperly classified as Museum Assistant 3 (MA 3). He seeks reclassification as Preparator 2, or in the alternative seeks "a Berry order" that his position be properly classified. The union relies on a class definition argument, and in the alternative, on a class usage argument~ The MA 3 and Preparator 2 class standards respectively, read as follows: MUSEUM ASSISTANT 3 CLASS DEFINITION: This class covers the positions of Museum Assistants who are responsible for a project in the Centennial Centre of Science and Technology. Under the direction-of a senior museum official, they plan, develop and operate a specific programme or project in the museum. They may train and supervise staff and may participate in the professional planning for the entire museum. These projects may be curatorial, administrative, educational or interpretive in value. OUALIFICATIONS: 1. Graduation from a university of recognized standing or an acceptable equivalent of education and experience. Guthe Formula to apply. 2. Several years' progressively responsible experience in the museum or a directly related field. 3. Independent judgement; proven administrative ability; personal suitability. April 1966 PREPARATOR 2 CLASS DEFINITION: This class covers positions of employees who perform work at the journey-man level in one or more of the skilled trades, and who regularly supervise two or more Preparators or other employees at the Centennial Centre of Science and Technology. They work under the general direction of a more senior Preparator. These employees normally are' responsible for a workshop or laboratory, its contents, and for the quality of work performed in their workshop or laboratory. They ensure that tools and equipment are in satisfactory condition and that the highest museum standards of workmanship are maintained. They keep abreast of methods of museum preparation, and develop and improve methods and techniques in their areas. They assist in training staff and may be required to assist on other projects of exhibits., or t~ work in other workshop or laboratory areas, or in exhibit areas in the fabricating, finishing, or the assembly of exhibits. OUALIFICATIONS: 1. Elementary School education plus journeyman standing in an acceptable museum trade or craft or an acceptable equivalent of education, training and experience. 2. At least two years' acceptable experience in the trade, preferably in a museum. 3. The ability to organize work and supervise, mechanical aptitude and ability and the ability to work effectively in a variety of trades; good physical condition and personal suitability.' September 1966 4 In Re Beals & Cain, 30/79 (Draper) at p. 11, the Board set out the rationale for its approach in classification grievances as follows: It may be assumed that among the objectives of the employer's classification system are the achievement of uniformity in policy and consistency in practice throughout the public service, and equitable treatment of individual employees. It follows that it is an abuse of the system and unfair to employees where the positions of employees who are performing substantially similar work are placed in different classifications. By intervening where that condition is found to exist the Board, rather than frustrating the intent or undermining the operation of the classification system, is preserving the legitimacy and the credibility of that system. The employer is clearly entitled to create whatever classifications it deems necessary to the effective organization and direction of its employees. But the employer must accept to.be held to the~consequences of departures, in particular cases, from settled policy or practice. It is not open to the employer, for example, to fix the duties 'or to direct the work of incumbents of positions placed in one classification so as to require or permit them, in effect, to perform the duties of positions placed in another classification. At p. 12 the Board went on to describe its approach to class standards and usage arguments: It is well 'established that in position classification cases, the Board must direct its inquiry to the questions, first, whether'or not the work actually performed by the employee is'that set out in an appropriate class standard and, second, whether or no~ he is performing work substantially similar to that being performed byan employee whose position has been placed in another classification. In the first instance the employee's work is measured against class standards and in the second it is measured against that of an employee in a position that has been differently classified. The purpose is to establish either that the employer is conforming to its classification standards or that the emp loyer has, in effect, modified those standards. The grievor held journeyman papers as a'foundryman and had extensive foundry experience both in the UK and Canada at the time he joined the OSC in December 1984 as a member of the unclassified service of the Ontario Public Service. He was employed .on a contract basis and was paid the wages of the equivalent civil service classification identified at the time to'be that Of Preparator 2. (See, Article 3.22.1) The purpose of hiring the grievor at the time was to set up and operate a foundry at the OSC. He prepared the area, acquired the necessary equipment, and determined the methods 'to be used in operating the foundry. In June 1985 the foundry opened and the grievor operated the foundry using-the sand casting method, to produce bells to be used in a robot exhibit at the OSC. While the operation of the foundry was open to be viewed by ·the public, .the employer's intention ·was to polish the bells produced by the grievor as part of a robotic demonstration. However, the robotic exhibit ran into trouble and was abandoned. Ms. Luigia Dedivitiis, who at that time was Manager of Instruction and Research at the OSC, testified that around the 6 same time in 1986, the main hall of the OSC went from a developmental to an operational phase. The employer decided to retain the foundry as an exhibit within the main hall. The responsibility for the foundry was removed from the Design/Production Department and brought under the Instructions and Research Department managed by Ms. Dedivitiis and approval was given to employ a permanent foundryman in the classified service. Ms. Dedivitiis, in consultation with others, developed a position specification and concluded that the appropriate classification for the newly created permanent position would be as MA 3. The MA 3 wage rate is lower than that of a Preparator 2. When the grievor saw the job posted as a MA 3 position, he complained. Ms. Dedivi~iis explained to him that the posted job as foundryman was solely to instruct and demonstrate the operation of a foundry to the public and that all instructors · of the 0SC are classified as MA 3. She explained that the initial idea of producing bells for the robotic exhibit had been'abandoned; that the Preparator series is for positions involved in production, and that the new foundryman job did 'not fit within that class. The grievor was not pleased, but he applied and was appointed to the posted foundryman position effective September 1986. In this job the grievor presented two "shows" each day at scheduled times. Each show demonstrated how a foundry functioned and climaxed with the pouring of the molten metal. The grievor had .two assistants ("Pourers"). The griev0r had responsibility for the training and instructing of the two pourers as well as some 10 to 12 hosts, who made presentations about the foundry exhibit to the public. Sometime late in 1986 or early 1987, the grievor came up with a proposal to do an additional demonstration using the investment or precision casting technique. As we understood, this essentially involved the pouring of molten metal to create items of jewellery. The grievor researched and developed the idea and received the approval of the employer~ in 1987 to implement this demonstration. The class definition argument Under section 18(1)(a) of the Crown Employees·Collective Bargaininq Act,."classification of positions" is an exclusive function of the employer. Once this management right is exercised, the 'Act in section 18(2) allows an employee to~ grieve "that his position has been improperly classified". The Board, in determining a classification grievance must therefore first inquire whether the classification assigned by the employer is improper. Only if it is improper is there a violation, which warrants.the intervention of the Board. 8 If the Board finds that the assigned classification is improper, it must go on to decide whether there is any other proper classification which fits the position in question. If so, .the Board directs that the position be reclassified to that. If the Board finds that the assigned classification is wrong but, cannot find a proper classification, it will make what is commonly known as "a Berry order", which obliges the employer to either find a proper existing classification for the position or to create one. In considering a class definition argument, the Board must first measure the grievor's work against the class definition assigned to his position. The gist of the union's class definition argument here is that the MA class series is intended for academically qualified persons whose work involves mental skills, while the Preparator class series is intended for skilled tradesmen who use more physical effort than mental skills. This distinction between "academic or mental skills" vs. "trade or physical skills" is not expressed on the face of the two class definitions in issue, that is the MA 3 and Preparator 2. Mr. Richards urges the Board to infer that distinction from the fact that the Preparator 2 class definition refers to "journeyman standing in an acceptable museum trade or craft", as a required qualification, while the MA 2 class definition talks of "Graduation from a university' of recognized standing". If these were the only 9 qualifications set out in the respective class definitions the union's argument may have had merit. However, that is not the case. The MA 2 classification is not restricted to university graduates'or "academics" because of the words "or an acceptable~ equivalent of education and experience". The responsibility of a MA 3 is to develop,, operate and maintain one or more exhibits. Ms. Dedivitiis testified that in recruiting employees in her department, the employer looks for whatever education and training it takes to operate a particular exhibit. Thus there are MA 2s with a wide range of qualifications, includ%ng Phds on one extreme and the grievor with~a.trade certificate on the other. While the grievor is the only MA 3 with a journeyman trade certificate, given the open-ended description of the qualifications required in the MA 3 class' definition, there is nothing, in our view, to preclude the employment of a journeyman in that classification. The fact that the grievor is the only MA 3 with journeyman trade papers only reflects the unique nature of the foundry exhibit, the operation of which requires trade skills as opposed to academic skills. Similarly we note that the Preparator 2 classification is not restricted to journeyman trades because that also recognizes alternatively, "an acceptable equivalent of education, training and experience". The union called another MA 3, Ms. Judy Janzen who testified that almost 70% of her time is devoted to exhibit research. In contrast, the grievor's research activity is substantially less.~ Again this difference is attributable to the different nature of exhibits operated by Ms. Jansen and the grievor respectively. The. grievor does constant research to upgrade and maintain his foundry exhibit, and he did research in order to develop and operate his precision casting exhibit. However, his research volume is significantly less simply because of the nature of his exhibits. The demonstration of a foundry operation involves significant preparation and clean-up duties. That necessarily reduced the amount of time available for research. We are of the view that these distinctions between the grievor's job and Ms. Janzen's position do not indicate that the grievor's position is wrongly classified as MA 3. The MA 3 definition is said to cover employees"who are responsible for Ja project" and those employees are said to "plan, develop and operate a specific program or project in the museum". The grlevor s job fits comfortably within that class definition. Since, as we have noted, his joUrneyman qualification is not an impediment to inclusion in this classification, we do not see any basis to find that his position'is improperly classified when measured against the MA 3 class definition. Accordingly, .the grievance cannot succeed on the basis of the class definition approach. The class usage argument The .union advanced this argument primarily on the basis of a comparison between the. grievor's position with'that of two other employees classified as Preparator 2. Mr. John Brands is a journeyman printer, and Mr. Ben Verburgh a journeyman model-maker. The gist of the argument is that these two employees used their journeyman skills in their respective trades just like the gri~vor used the skills of his trade. Since the employer had seen fit to classify the printer and model maker positions as Preparator 2, it is argued that the' grievor is entitled to the same classification. As a general matter, it is beyond dispute that Brands, Verburgh and'the grievor use their respective trade skills to a 'greater or lesser degree in carrying out their~ duties. However, the similarity ends there. The evidence is that the two preparators practice their trade skills to the fullest extent on a day to day basis. Although both 'witnesses testified that the primary purpose of their j~b was to demonstrate their trade skills to the public, their position specifications (which everyone agreed were accurate), and the evidence clearly establish that this is not so.. Their primary function is to produce items required by the OSC as per work orders assigned to them by their supervisors. Mr. Brand's position specification assigns 70% of his time to "providing printing services for the centre's internal printing requirements" and 20% to "demonstration while producing the 'centre's printing requirements". The evidence is that the OSC has a separate print shop exhibit. Mr. Verberg's position specification does not include a percentage breakdown of his time, but the bulk of his duties are also production'oriented. The evidence is that ali of the centre's preparators produce items needed by the OSC. The only preparators who work in public view are the printer and the model-maker. They produce items as required by work orders. What they~produce is used by the OSC. They do not put on a staged show. What the public sees is what is being produced on a given day as determined by the centre's needs. What is produced day-to- day can be a variety of things. At least as far as the printer is concerned, the evidence is that from time to time he operates the printing shop on overtime,' when the centre is not open to the public. What the evidence indicates as a whole is that the printer and the model-maker are essentially involved in the production of items for Use by the OSC. The printer produces a variety of printed material for use by the centre. Th~ model-maker produces a variety of models, from ship models to farming models, for use in the many exhibits 13 within the centre. The difference between ·these two preparators and the other preparators, is that, because their trade is of interest to the public, they work in public view and they are expected to explain and answer any questions members of the·public may have. Neither the printer nor the model maker have any responsibility for training or.monitoring of any hosts. In fact there are no hosts involved in the demonstration of their trades. In contrast, the grievor's job is solely one of demonstrating an exhibit.~ It has no production component to it. He puts up a staged show at a scheduled time for the· benefit of the viewing.public. The grievor testified that. from time to timer he has produced some items which have been incorporated into exhibits. However, he agreed under cross- examination that these were produced not pursuant to any work orders. Nor was that work assigned by his supervisors. The evidence is that people, in the OSC from time to time made informal· requests from the grievor to make certain items to be used in their areas and that the grievor obliged.. The griev0r agreed that it was not part of his job to produce those items. Ms. Dedivitiis testified that the grievo~ was quite interested in making these items upon request, and that as long as this was agreeable to'the grievor, she had no Objection and would even encourage the grievor to oblige. In the circumstances, this evidence does not suggest that the griev°r has production responsibilities like the printer or the model-maker. It is clear that' the latter jobs exist because of the need for the production of the printed material and the models, and that the demonstration aspect is an incidental benefit the OSC has seen fit to derive. As Ms. Dedivitiis testified if the employer decides at some point not to have a foundry exhibit (for example due to lack of an interest on the part of the public), there is no need for the operation of a foundry at the OSC. In contrast, regardless of the level of appeal to the public, the printed m~terial and models must be produced. That in our view clearly demonstrates the difference between the role of the printer and the model-maker on the one hand and the foundryman on the other. In our view, the distinction is not merely one of focus. Due to the difference in focus, there are material differences in the actual work. The evidence is that the two preparators use all th~ aspects of their trade skills on a day-to-day basis. They produce whatever is required by the work orders, and must use whatever skills are required to produce those. In contrast, since the grievor's exhibit is for demonstration purposes only, the trade skills he uses are selective and mostly repetitive. In operating the foundry exhibit the grievor does 'not utilize all of the skills of a .journeyman. 15 It follows from the above that the printer and model maker do not perform substantially the same work as the griever. Therefore, the griever is not entitled to the classification held by those employees on that basis. The union advanced two other usage arguments. Mr. Richards pointed, out that when the griever was first hired as an unclassified contract emploYee, he was paid as a preparator 2. It is his contention that the duties he performed then were the same as those performed by the griever presently as a permanent classified employee. Therefore, Mr. Richards submits that if the employer saw fit to treat the griever as a Preparator 2 as a temporary employee, the same classification should be .recognized for him after he became a permanent employee. Similarly Mr..Richards pointed to the positions held by the griever's two assistants, who at the time were also members of the unclassified service. They were paid the rates of a Preparator 1. It was. only in March 1988, well after the .filing of the instant grievance, that the two assistants' equivalent classifications were changed from Preparator'l to MA trainee. Therefore the argument is that between September 1986 .when the griever became a permanent employee and March 1988, the griever and the two assistants were performing the same work, but were differently classified. The contention 16 is that since the two assistants were in the Preparator series for that period, the grievor is also entitled to be classified in the same class series on the basis of class usage. These latter arguments of the union are unique in that a class usage argument is being advanced on the basis of a comparison to employees in the unclassified service. Unclassified employees are assigned a wage rate on the basis of an equivalent classification under article 3.22.1, but have no classification of their own [See, Re Greer et al, 877/86 (Dissanayake)]. The union relied on Re Remedios, 1703/84 (Palmer). There the grievor was hired as a temporary stenographer in the "G.O. Temp" programme and assigned to a clerical job with the Ministry of the A.G. and paid the equivalent wage rate of a Clerk Steno IV. Subsequently she became a permanent employee in the classified service. At the time, her job was designated the classification of Typist III which was lower rated than Clerk Steno IV. She grieved her classification. The Board upheld the.grievance, and in so doing stated that one of the.factors that greatly a~sisted it in making its decision was the method of payment to the grievor while she was a temporary employe~i The Board states, "as She was paid the rate equivalent to that of the job here sought, it would seem a reasonable assumption to conclude that, as she is still doing the identical work, the 17 appropriate classification for her' now would be that of Clerk Steno iV." In our view Re Remedios is clearly distinguishable from the case at hand. In that case the Board made an explicit finding that "There was no dispute that Mrs. Remedios was doing exactly the same job before and after her transfer to permanent status", and no issue was raised by the~employer that there was any mistake in the manner in which the grievor was paid as a temporary employee. In contrast, here the employer's evidence is that as a temporary employee, the grievor was producing goods required by the OSC by operating a foundry. As a permanent employee, he was presenting a foundry demonstration or show. As we have already pointed out, the work of operating a foundry for production purposes, is different from the repetitive demonstration of a foundry exhibit. It cannot therefore be said thatthe grievor was performing~"exactly the same job" before and after his transfer to permanent status. Besides, here the employer is takihg the position that once the ·initial intention of operating a foundry to produce exhibits was abandoned, the Preparator classification was no longer appropriate and that when posting the permanent position the employer corrected that by classifying the ~position as MA 3. The employer takes the same position with 18 regard to the changing of ~the classifications of .the two assistants 'from the Preparator series to the MA series. We have addressed the issue of the employer's right to-rectify a wrong classification below. That is an issue that the Board in Re Remedios did not have to deal with. In Re Lowman 13/82, the Board found that there was one employee who performed the same job as the grievor, but had a higher classification. However, it was held that a single departure did not entitle the grievor to claim the higher classification on the basis of a usage argument. The Board in essence held that for a usage argument to succeed, there must be evidence of a consistent practice of varying the class standards and that a single departure did not establish such a practice. The Board's decision in Re Lowman was quashed on judicial review. In a judgement dated April 22, 1985 the Court held, In our opinion, the Board erred in failing to apply the second test in OPSEU v. The Oueen in Right of Ontario et al (1982), 40 O.R. (2d) 142 (Brecht's case). Having found that there was an employee performing substantially the same duties as the grievors and that such employee had been deliberately classified by the respondent in a higher classification, the Board acted unreasonably and without jurisdiction in failing to find that the grievors would be properly classified in the higher classification. " The higher classified employee-and the four grievors are the only persons in the Public Service performing the function of remote sensory 19 supervision. In the circumstances we are of the opinion that it does not assist the respondent to argue that the senior employee may have been improperly Classified. The decision of the Board is quashed and set aside and the matter remitted back to the Board,. costs to the applicant. The scope and meaning of this Court decision was considered in Re Taylor et al 478/85 (Brent).. The Board held that the Court does not state that an employer can never .successfully argue error when it held that the employer in that case could not argue error in the circumstances of that particular case. The Board then went on to give its view of the law following the court decision in Re Lowman: Following the L0wman decision, it is our view that the Employer is precluded from pleading error. or anomaly where there is a deliberate decision to classify substantially similar jobs differently. It would appear that the overriding consideration, in view of that decision, is that the classification system be applied uniformly and consistently so that positions which are alike in all relevant respects are classified alike. The Court did not consider a situation where the Employer recognized an error and then did something to restore consistency and uniformity to its classification system by applying the class standard as written. .It is our view that for a classification system to. work properly and to ensure that'the same work attracts the same pay there must be a mechanism for correcting the errors which will inevitably arise in the application of the system~ No classification system, can hope to achieve even a semblance of equity and fairness, if errors must be frozen for evermore. If .the Employer recognizes an error and then does nothing to correct it, it would appear that since Lowman it can no longer refuse 'to acknowledge that the "error" has in effect become a relevant standard of comparison. Where the Employer recognizes ~that a mistake has been made and acts to correct it, then surely it has restored consistency and uniformity to the system and can once again rely on the class standard as written as being the applicable standard against which to measure the job which is the subject of the classification grievance. In our view, it is irrelevant that the error was not corrected by the date the grievance was filed, and in this case the fact that the Employer was engaged in correcting the error at the date of the grievance and subsequently did correct it is sufficient to show that it was applying the class standard as written and did not intend to vary it. through application. It would be strange result, indeed, if the effect of this decision were. to force the Employer to reclassify a job which is classified.correctly according to the class standards simply because it was substantially the same job as one which had once been improperly classified higher than the grieved job but which was now properly classified in the same classification as the grieved job. If we were to do this we would be forcing the Employer to perpetuate a mistake it had already corrected and leave it vulnerable to claims for reclassification from every employee occupying jobs classified as Operator 2 Microfilm. Such a result would not benefit anyone interested in encouraging a reasonable, fair and.equitable application of any system of job classification. In our view the foregoing reasoning has direct application to the facts before us. We have concluded that the foundryman job is now correctly classified according to the MA 3 class definition. All' of the employees at the OSC who operate exhibits and demonstrations are Classified in the MA series. The grievor was initially classified as a Preparator. If the initial purpose of his job, namely~the production of exhibits had continued, that classification 21 would have been appropriate. However, since his job changed from one of production to one of demonstration, the Preparator series was no longer appropriate. The employer had corrected this anomaly by the time of the hear'ing. The same thing happened with the two assistant's jobs although the correction of their classification took longer. As held by the Board in Re Taylor, the fact that the employer had corrected the improper classifications shows that it was applying the class standard as written and did not intend to vary it through application. In the circumstances, to allow the grievor to now rely on a wrong classification is to .force the employer to perpetuate an anomaly which has already been corrected. As the Board in Re Taylor points out such a result does not benefit anyone interested in encouraging a reasonable, fair and equitable application of any system of job classification. For all of those reasons we refuse to recognize the union's usage argument based on the equivalent classification assigned to the positions held by the grievor and his two assistants as temporary employees, because those classifications became improper after the foundry became an exhibit.~ ~. 22 ~ The parties agreed that if the proper class series for the grievor was the MA series, the proper level for him was MA 3. In the result we find that the grievance fails both on the class definition and class usage approaches and that his position is properly classified as MA 3. The grievance is hereby dismissed. Dated-this '~t'h -_ day of "~arc5, 1992 at Hamilton, Ontario N. Dissanayake Vice-Chairperson "I Dissent" (written dissent to follow) J. McManus Member ¢. hinton Member