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HomeMy WebLinkAbout1988-0173.Atkinson et al.89-09-27 ONTARIO EMPLOY~-S DE LA COURONNE CROWN EMPLOYEES DE L'ONTARtO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO, MSG 1ZS-SUITE 2~00 TEL£PHONE/T£L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (416) 598-0688 173/88 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT Between:" OPSEU (Atkinson et al) Grievor - and - The Crown in Right of Ontario (Ministry of the Attorney General) Employer Before= J.E. Emrich Vice-Chairperson I. Thomson Member F. Collict Member For the Grievor: P. Lukasiewicz Counsel Gowling, Strathy & Henderson Barristers & Solicitors Pot the Employer: J. Mideo Manager Human Resources Management Ministry of the Attorney General Hearing: June 26, 1989 DECISION Before the Board are the individual grievances of nineteen District Court Reporters who work for the ~mployer in Toronto. It is claimed that through the introduction of computer technology the grievors' job functions have changed to such an extent that they are no longer properly classified as Court Reporter 2. By way of relief, they ask that a new classification be created or that a higher rate of pay than their classification rate be awarded, on a quan.tum meruit basis. A novel feature of the Court Reporter class series is that the reporters supply and maintain their own equipment. ~l~e series is divided into ~hree levels and is described in the preamble to the class standards in the following manner: m~en~ra~ ~chine pr~ucinq sumtain~ a~ ack,ate ~qh-8~ r~ordi~qm of such pr~e~inqs ~der co~r~ co~i~ions. ~ inc~ In ~e series are t~se ~si~lons where ~pl~ees record pr~e~i~s usl~ electronic ~ni~orl~ ~uipont. bployee~ in these ~ai~ions ~ecord in co.ts such as Dio~f~c~uEt, P~ovincial ~t (C~l ~ F~Iy Divisions), $upr~ S~ll Cla~n ~uft ~d ~ami-ju~cia~ ~iem such a~ ~e Ontario Securities aem~ibllitiem ~ypically i~l~e ~e ~oll~inq tasks: - recordinq vef~ all pz~i~m ~cl~in9 ~tstl~ of ~n co~; readin~laying ~ck ~r~e~ingm am - enm~ing ~he f~l&ng of ~aps,.~o~ ~em, ~ 1~ ~e~lCel. ~e variety a~ c~plext~M o~ the skills ~e~ci~ . ~e acco~tabiliW o~ ~ ~si~ ~o~, the kind o~ actions t~en and the lm~ct (of errors) o~ such ac~ion~ . ~ aasig~nt of.g;~p le~er~htp res~nstbllitles. ~r~in~ level ~u;C te~tte;s ~o ;~c~ a v~ieC~ o[ ~c~al p;~eedings u~in9 e[~e;r sho;th~d, ~ten~, o; ste~;a~. ~1 o~ ~e 9;ievo;~ ~e a sben~;~ ~ne, b~t at i~sue ~e ~e ~n9 a ste~;~ ~hLne ~h~ch ;e~;d~ ~e evidence onto a ~lop~' 3.5 c~er disk tr~scrip~i~] ra~er ~ p:~ing a ste~ty~ t~ of notes for tr~ription. ~e distinguishing feat~e of ~e ~urt ~rter 3 cl~s st~dard is ~e ~sig~nt of 9r~p lea~r res~nsibility. c~e h~ever, ~e evidence indicated that ~ese grievors were not'exacted %o ~s~e grip lea~r res~nsibility.~ a ~re f~cti~. grievors ~e ~ot s~i~9 ~ecl~sificati~ to ~e level of ~urt ~rter ~us, ~e issue ~fore ~e ~rd is whether ~e intr~ti~ of ~tmz-~sisted tr~ription has effected s~h a s~st~tial ~litative ch~qe to ~e grievors' ~rk, ~at ~he ~rt ~r%e~ 2 c~s st~d~d no l~ger a~ately reflects ~e nat~e ~d level of ~e ~rk ~rfo~d. ~e ~urt ~rter 2 cl~s st~dard is in ~e foll~in~ terms: This class covers positions of working level court reporters who record a var£eCy of ~udici&l proceedinqs us~nq .i~er shor~nd~ O~ This clams covers positions of court nonitorm who elso exercise group leadership responsibilities over en ass~gn~ g~p of s~a~f, which ~a=~e freei~ce cour~ ~, s~e~ak or stea~r~ suffAcien~ ~o ~ee~ ~he de.rids of ~e c~ or in ~e case of group leade~ ~u~ ~at~ors - ~e ~lli=y ~ ty~ accurate tr~acri~s, reasons for ~rrea~ndence, ~,1, or o~er - ver~l ~icaC/on skills ~o dis~nse generel infom~/on r~a~ing ~r~czip~s or c~ses ~o ~ges, ~o ocher s~aff. ~o officers, sheriff's office, ~ =o read ~ck ~eati~ny/infomtion to ~e cour~ es - wfitZ~ com~l~ion skills to c~se routine corres~ndence - ~e ~ility Co ~ceflCra~e/~rk in~ensively for long ~ri~8 tiM, re~rding verht~ judicial pr~e~ing8 end ovi~ace. Acco~Cabtli ~y = - rel~nsible for ~e ro~r~i~ of c~rt pr~o~ings ver~ u']ing s~en~sk, short~, or 8ten~x~, ~ for the pre~re~iofl · c~i~o at.scripts.. - for group le~er ~ ~nl~ors res~nsible for lch~ullnq cour~ ~or8/~e~o~s ~d for revtwl~ ~he q~l~y/ecc~.~ of - errors in ~he recording of 'chi proceedings or ~n the ~y~, Wan- scf~pC Could iffe~ the outc~ o~ a tr~i~ and/or ~he all~ce/ Group ~aders~p: Co~t ~tofl w~th assign~ group leaders~p duties ale res~naible - pr~idi~ lnst~ctio~ for ~rk ~askl; - pr~Ld~ tra~n2~ ~n co~ pr~uroo, traflscr~p~ pr~uct~on, and ~n the use of el~ron~c ~ni~oring - ach~uling a~ c~rdin4~i~ ~rkl~d, a~ ensuing t~ courts - reviwA~ tr~scri~o of ~r~ ~ni~ors/re~r~er8 ~ ch~k ac~a~; = referring d~sc~pl~ probl~ ~o = assisting in ~nte~l~ ~ tos~ fr~ance court It w~ ~reed by ~e p=ties ~at the evide~e ~uld ~ a~ed a rep~entative 9rievor, ~. Ki~rley ~e~n. In accord~e with this ~r~ent, it folf~s ~at all ~e grievors will ~ ~d by ~e result of ~. ~e~n's griev~ce. It was fur~er ~reed ~at ~ree 9rievors, Kushnir, ~. Olubick ~d ~. ~arpe have resigned since filing ~eir griev~es ~d that ~ree' o~ers, ~. ~rrett, ~. Bi~o ~d ~. ~a do not yet ~ a c~teri~d sten~r~ ~chine. ~other grievor, h~ ~e ~teri~d s~ra~ ~chi~, but is awaitin9 re~ipt of re~isite softw~e to o~ate it. ~. ~es~ i~ntified her ~siti~ S~ifi~ti~ Which descries her j~ in ~e roll. in9 m~ner: 5 District Court Re_porter I 02-8330-62 '~ict Court Reporter - - Court ReDOrter 2 00484 Attorney General Courts Admi ni strati on ~4_ .... I Chief D~s:r~Ct CourT. R~or:er 0g-83~0-~0 ~o act % I. Acts as Court Reporter by: 95% -- -recording verbatim by shorthand, stenotype or stenomask the proceedings of the County 'Court, Surrogate Court, Supreme Court (matrimonial causes) sittings and record proceeding held in Chambers, e.g., Landlord and Tenant,' Interim Custody matters, including testimony of witnesses, address to the Jury, Judge's instructions and all 'matters pertinent to the 'record; -reading back in court, at the direction of the Judge, proceedings previously recorded: -providing transcripts of court proceedings on request; certifying accuracy of transcr- · as Court Reporter; (NOTE: Transcripts normally prepared on incumbent's own time); -filing the court records (cassettes and )og books or shorthand notes). 2. Performs other duties as assigned. · Skills and knowi~d~ requir~ to I~dorm job it tull wor~g llql. (indian mln~tory ~ent~l; or lice~ce~, tf m~t:~l~mbm) Previous court reporting experience. Minimum shorthand or stenotype speed of 180 w.p.m, or stenomask speed of ~S0 w.p,m. Typing skills in excess of 50 w.p.m.; good knowledge o{ )egal and technical terminology and court procedures. Knowledge of {unctions and procedures o{ th~ Supreme and District Courts. ._~-, A high stand~rd of r.-~ .,,~,ish gra,-;~ar and spelling. Good cu.,i'iunication skills. In cross-examination, Ms. Neeson admitted that the third section of the Position Specification, pe[tainin9 to duties and related tasks, was an accurate reflection, in very general terms, of what she is required to do. She did not disagree with the percentage allocations showing the balance of work in that section. Ms. Neeson has been employed as a District Court Reporter for seven and a half (7-1/2) years. She holds her C,S.R. ce~tifioatic~.' She bega~ using her c~mputer-assisted stenograt)h machine two years ago. in her evidence, Ms. Neeson highlighted 'the differences she had noted between her old manual machine and her computer-assisted machine. While her old manual machine and cc~puter-assisted machine have a similar keyboard, the computerized machine's~keyboat~ is electronic. The oc~terized system offers the benefits of increased speed in production of transcripts, hence irscreased volume of t~anscripts produced, as well as greater accuracy and versatility. The computerized system offers a feature called "real time" which allows verbatim testimony to be displayed virtually instantaneously on a screen so that ~ounsel or a witness can see the sequence of questions posed' and responses given. This is of particula~ assistance to witnesses who are hearing impaired. The screen can be split so that a search can be made and earlier questions and responses may be displayed as well. Because floppy disks can be copied by the reporter, she can offer litigation support to counsel or a judge who wishes to purchase ot be provided with a disk copy of the evidence. Another feature of litigation support is "~ey word indexing" which allows re~etences to a particular subject in evider~:e to be searched through the disk and reproduced in a transcript. Ms. NeesO~ explained that by using Baron and WordPerfect software, she can produce more accurate transcripts, more quickly. She '7 estimated that 80% of her work now entails the production of daily or expedited transcripts, which are produced overnight or within two days, respectively. Indeed, from a memo dated January 30th, 1989 issuing from the office of His ~nour, Judge N.D. Coo, Senior Judge of the District of York to all District Court Judges, it is' clear that the grievor's immediate supervisor stood ready to assist the judiciary by producing daily transcripts upon reasonable notice through assignment to reporters with computerized machines. 'Ms. Neeson explained that whereas on her old manual machine she might produce 30 pages of transcript per night, she can produce 8~-9~ pages per night of o~dinary proceedings with her ~omputerized machine. Since court reporters are paid partly by salary and partly by transcript fees set by regulation, an increase in the number of transcripts produced is acccx~panied by an increase in income. However, as MS. Neeson pointed out, since it is the responsibility of the court reporter to provide his or her own equi[~ent, the cost of .the computer hardware and software is borne by the employee. In Ms. Neeson's case, this amounted to an expenditure of approximately $16,00~. She acknowledged that she would have expenses attendant upon use of her old manual machine as well. For instance, she. explained that in o~der for her to keep up with the volume of work, it was not uncommon for her to hire a typist to type up a transcript. Tae cost of such a typi~g~ service would he 'deducted from the transcript fees earned. Ms. Neeson explained that it took approximately a year to become competent with the Baron and WordPerfect software. She receiued on~ day of formal training on the Baron software, and learned the other p~ogra~me on 8 her own time with occasional assistance by telephone with software consultants in California. She noted that for the system to become useful, a "dictionary' has to be programmed by the stenographer into the computer so that the machine can translate stenotype symbols into fhglish transcript form. Once a dictionary has been created, it is augmented constantly through use, as new terms are encountered in proceedings. Ms. Neeson added that for the computer to be able to recognize symbols in its dictionary, she must be more exact than when usin9 the manual system when entering evidence into the cc~puter-assisted stenograph. ~ Having reviewed the evidence, it is apparent to the Board that the introduction.: of the computer-assisted stenograph machine has not changed the essential nature of the work performed as it is described in the Position Description and Class Standard. Rather, the cx~puter-assisted system enables the same work to be performed more efficiently, with significant improvement to the volume and pace Of production of transcripts, with a more intelligible means of presenting evidence of proceedings not °nly while court is in session (ie. "real time" capability], but also in transcript form (ie. "key-word indexing']. It remains within the discretion of the court reporter to decide upon what equipment she will record evidence and p~oduce transcripts. Furthermore, the court reporter must decide upon the appropriate volume and priority of work to meet the requirements of her position specification. Naturally enough, the manner of the ccmpensation through transcript fees and the demand for volume of work have created an incentive to adopt the more efficient and versatile computerized system. On behalf of the ~mployer ,. it was argued that the adoption of a oomputer- assisted stenograph system had to be considered self-directed on the part of the court ~eporte~ and could not be considered to be at the behest of the ~ployer. Such an argument ignores the realities of the particular work context. The system of compensation adopted by the Employer sets up incentives for quicker, more efficient productio~ 'of transcripts and it is clear fr~m the memorandum filed that it is expected that the court reporting system will enhance the functioning of the judicial system and meet reasonable demands on the part of the judiciary and counsel. A number of cases have considered the issue of whether a change in equipment produces such a substantial, qualitative cha~ge to job function so as to warrant reclassification, or payment at a higher rate. In~R~ Wilson Goncrete kodu~_ts Ltd: and United Cement, Li~e & Gypsum Workers, Local 424 (~973), 3 fAC (9.d) 32, a new machine was introduced by the company for use by the yard crane operator classification. Although significant differences were found between the new and previous generation of mobile yard cranes, the Board held that the introduction of the new equipment did not result in a new job, on the basis that the crane operators were continuing to perform essentially the same type of duties. At p.34 Mr. Weatherill observed: T~e d~termination of the content of any particular job classification is to be made having regard to the whole of an employee's work in that classification. In some industrial plants where the Whole of a~ employee's time is spent operating a particular machiae, and where his job is described in terms of [operating a particular machine], then it might be that the introduction of a new machine is equivalent to the introduction of a new job. Where, however, a job is described in terms of the performance of certain general tasks, then a change in the equipment with which those tasks are performed does not necessarily constitute either a substantial change ir~ the job or the creation of a r~ew job. In Re Sl~erry Inc. and United Autc~obile Workers, Local 641 (1985) 20 LAC (3d) 385 (Hinnegan), the union claimed that a new classification had been created when the company posted a vacancy in the classification of Master Technician, the postin9 stated that experience with and ability to repair and maintain digital and micro-processing equipment were required. The Board found that no new job had been created and c~mmented as follc~s a% Thus, advances in the state of the art in a given area, requiring advanced s~ills in the new technology, does not, in and of itself, result in the creation of a new job. The Master Technicians ale still performing essentially the sa~e job duties of repairing and overhauling aircraft electronic equipment, albeit now including digital systems a~d mi¢:op£ocessors. By way of contrast, the position of Packaging Technician, introdUCed by the cc~y in August of 1985, was referred to. That was, in fact, a new position involving new duties and responsibilities not previously performed in any App. "B' occupational classification within this bargaining unit. In my view, that example usefully illustrates the difference between a new job classification established to perform new duties and ~ e~istir~ j~b classificati~ ~(~ti~in~ to f~rfor~ ~e ~ d~ties ~it~ r~w ~1o~, (emphasis added) The sa~e result Obtained in Re Kirkland L~ke Board of ~ucation sd Canadian Union of Public f~loyees, iocal 1671 (1987), 28 L~£ (3d~ 252 (Wilson) o In that case, the grievor was classified within one general category fo~ seCretarial-~lerical work. She claimed that following the introduction of a c~ter system, her job fuactions had changed so substantially as to warrant her reclassification. The arbitrator reviewed the foregoing jurisprudence, and reached the following conclusion at pp.255- 256: The difficulty the grievor faces in this case is Obvious. The collective agreement has only one classification covering clerical-secretarial functions. Obviously such functions can in fact range in difficulty. Indeed, although the evidence was sketchy, it appears that there are other persons in this category who do work with varying degrees of machine complexity. It would appear that the gfievor may have the most sophisticated of the machine skills in her job of all those in this classificatioa workin9 for the board. However, even that is only as an operator of a rather small ccm~uteE (albeit perhaps mo~e powerful than a personal computer) but still withia the context of secretarial or clerical functions. E~tensive training was not required for it. She has not been trained as a programmer. Obviously if the board hired or trained one of its employees to do a compute£ 9rogram~er's job, that would not fit the secretarial-clerical classification. But the grievor's skills and functions are still those of a clerk-secretary. It may well be that the union may wish to bargain for diversification within the secretarial-clerical classification with attendant different rates due to the varying quality of skills and tasks performed. · But given the broad single category existing now, I do not see on this evidence that the mere computerization of the secretarial job has caused a changed in the actual job functio~ performed by the grievor so as to create a new job outside the existing classification. Accordingly, the g~ievaace is dismissed. The Board finds that a similar' conclusion can be reached on the evidence in this case. ~he introduction of the computer-assisted stenog~aph machine has made a significant improvement to the pace and volume of transcript production and the mariner in which evidence can be displayed and retrieved during the verbatim recording of proceedings. F~)wever, these are changes in the efficiency and performance of the existing job functions through the use of a new generation of stenograph machine. Tae Position Specification and Class Standard are drafted largely in terms of job functions using a variety of machines, including the stenograph machines. As such, this case can be distinguished fr~m Cntario Hydro (1983) I1 LAC (3d) 4~4 (Shime) in which it was found that the employer had assigned the task of p~eparin9 training manuals to the classification of mechanical maintainer, which work was held to be "completely out of the ordinary" - that is, beyond the scope of the classi~ication's normal work and not necessarily incidental to such work. A~cordingly, fo~ the reasons given, the Boa[d finds that the Union has not established that a substantial qualitative change has occurred to the job functions of the {butt 1~porter 2 as set forth in the Position Specification and Class Standard. in the result, the grievances are dismissed. Dated at Kingston, this 2)1~ day of Sep:ewb~r , 1989. (Addendum attached) ADDENDUM 173/88 (Atkinson et al) As the Award points out this is indeed a most unusual case. It is a rare case indeed where employees are required to make a considerable financial investment in equipment to more effectively perform their job for the benefit of the Employer. While it is true that the grievers may have increased earnings as a result of their investment in equipment, the Employer benefits greatly also by being able to assign fewer employees to do the same volume of work. For example, before the present equipment was supplied by the employees, it was necessary for 2 or 3 Reporters to be ~assigned to a ease where daily transcripts were required. Now, a single reporter with modern equipment can do the same work with greater efficiency and a¢cpracy. The benefits the Employer has received from the Reporters' investment in hardware, software and training ought to be kept in mind by the Employer the next time negotiations ta~ ~e. /~homson, Member