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HomeMy WebLinkAbout1988-0453.Beggs et al.90-07-30 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPL 0 YEEE DE £ 'ON TAR fO GR'EVANCE C .OMMISSION DE BOARD DES GRIEFS 180 DUNDAS STREET WEST, TOFIONTO~ ONTARIO. MSG 1Z8- SUITE 2100 TELEPHONE/T£L~PHONE TSO, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG ~Z8 - BUREAU 2?O0 (416) 598-0588 · 453/88, 492/88, 493/88, 494/88, 512/88, 513/88 IN TI{E FATTER OF AN ARBITRATION Under T~E CROWN EMPLOYEES COLLECTIVE BARGAINING AcT Before TIiE GRIEVi%-NCE SETTLEMENT BOARD BE~EEN OPSEU (Beggs et al) Grievor - and - The Crown in Right of Ontario (Ministry of Agriculture and Food) Employer - and - · T. Wilson Vice-Chairperson T. Browes-Bugden Member E. Orsini Member FOR THE R. Blair GRIEVOR Counsel Cavalluzzo, Hayes & Lennon Barristers & Solicitors FOR THE R.A. Scou!ler EMPLOYER Manager Staff Relations Safety & Benefit Ministry of Agriculture & Food HEARING: April 12, 13, 14, 1989 898767 DECISION The're are zilteen grievances involved in this case of whic~ Boncheff (0~//8~; anG Draper, BecKet an~ Green are consoildateG on consent wl~n ot~ers. The ~irst-named griever, Ronald Huilln, testified as t~e representative gr~evor. They are ail classification grievances and the Union seeks a Carol Berry type Order, ie. that the Ministry be directed to find or create an appropriate classification inasmuch as the grievors are allegedlv all misciassified at present. All the grievors are currently classified as Farm Products Inspector 2s wit~ a position title or Fruit and YegetaDle inspector. Ronald 14ullin is empioyeG 'Dy the Minlstry at the untarzo Termlnai. He nas been a ~arm products inspector since 1979. In 198j an important reorganization in the Fruit and Vegetable InsPection Branch took place and it is this change which gives the thrust to the grievances. The most significant aspect of t~is reorganization was the elimination or'the position of Senior Inspector (Tl414 level). Thzs change was set out in a Memorandum dated ~'eDruary 3, 1987 from t~e Inspectlon Branch Director J.H.'Wheele. At page 2, he "Recuc~on ~n ~'safr nu~m3ers aha cnanges ~n program demands ~ave, ~n many cases, drm~8[~'ca~iy reduceo ~ne ~enlor InspecEors' managemen[ responslDlli~ies. As =he Branch complement was reduced, ~he inspectors' dilemma of "Who do I report to?" became more intense. Under the new structure the D2s~ric= S~pervisors W~ll assume ~he managemen~ (supervisory) respon.sibili~ies of ~he Senior Inspector. In many cases uhis has already uaken place. All inspectors ~ili repor~ 50 a Dl$~rlCn b'uperv~sor." Mr. Mullin testified that he had been management before accepting the Inspector position in 1979 and at that time it was the natural progression to move from Inspector to Senior Inspector which was outside the Bargaining Unit. · AccordinglF, ~he had studied the branch' structure at the time. There were seven to eight Senior Inspectors at the time. The reorganization in 1983 created five dis~r~c~s and two new vacancies for district supervision. One of the Senior InspectOrs who was successful on the job competition was appointed to the position of District Supervisor in Toronto. The Senior Inspector in Toronto had retired a Fear after Mullin's arrival and before the reorganization. One of his functionshad been the supervision o~ the grading of tomatoes for the Campbell Soup Company and upon his retirement Mullin assumed that function. The grievor also asst~med responsibility ~or r~%e controlled atmosphere apple storage. It had been a supervisor' s responslD!lity. Furthermore, complaints a~d difficult situations which would have been handled by'a Senior Inspector were handed over to Mullin. Mr. Mullin reviewed his Position Specification (Ex 2a) for the Board. It provides as follows: (Relevant parts reproduced) 2. Purpose of position (w~y does this position, exist?;, To ensure compliance with the fresh fruit a~d quality progra~ o~ the Branch; to promote the marketing, of high quality fruit and vegetables and o~ner ~arm products; to provide grading services for ~ruit and · ~e~etables for processing ~or the purpose of determining payment to the seller; to conduct inspections under the Fruit and Vegetable Quality Improvement Program; to control the spread of plant diseases and pests which are harmful to the Ontario horticulture industry. 3. 0uties and related tasks (what is employee required to do, how and why? Indicate percentage o~ time spent on each duty). i. Ensures compliance with the Farm Products Grades and Sales Act by: - 4 - - conducting investigative inspections of farm products under the authority og the Farm Products Grades and Sales Act and Regulations at %he grower, packer, wholesale and retail levels, 40% - in the case ot non-compli~nce, investigating, documenting, reporting, recommending appropriate action and providing evidence in legal proceedings, - preparing reports on produce quality, - Resolving guatity related complaints and disputes as a mediator/conciliator; Hiring, training and supervising, including reprimanding and dismissing, casual staff as required. 2. Provides advice and assistance to members of the horticulture industry by: - informing memDers o~ r~e industry as %0 the grade, container ~nd sales standards ~or .~arm products, 20% - providing'the industry with advisory services with respect to market requirements and alternative handling and marketing practices to improve product quality and e~hance the marketability of Ontario farm products, - participating in local industry meetings and providing information as required, - preparing informative medi~ articles and other program materials ~or puDlication, - assisting clients wir~ problems requiring technical expertise and making the appropriate referrals. 3. Provides service to the fresh storage and packing and the processing sectors of the horticulture industry by: 20% - delivering inspection programs for fruit and vegetables for storage, packing and processing according to Marketing Board !egisla%ion, the Earm Products Grades and Sales Act ' or written contracts ~a~d preparing reports on those program~, - transporting, maintaining and conducting anaiyses wit~ testing equipment, - hlring, trainlngand supervising including reprimanding and dismissing casual employees as required. Promotes product quality enhancement through the Fruit and Vegetable Quality Improvement Pro,ram (F&VQIP) by: - advising horticulture industry members of the assistance available under F&VQIP, 5% h inspecting and monitoring completed F&VQIP projects and reporting ~indlngs to. Head Office, - ~nves~lgating, documenting and reporting suspected irregularities. Ensures compliance wlt~ 5~eAbandoned Orchards Ac~, t~e Pla~t Diseases Act and %he Seed Potatoes Act - conducting inspections related to the enforcement o~ these Acts, 5% - in the case of non-compliance investigating, documenting, reporting, recommending appropriate action and presenting evidence in legal proceedings, - conducting orchard inspections under the apple maggot certification program. .6. Performs related duties suck as; 10% - providing guidance and technical orientation to new employees, carrying out the following Branch activities as assigned; market information reporting, controlled atmosphere storage program, tobacco grading and testing, conducting surveys and preparing various reports, dealer licensing, selecting and forwarding samples for pesticide residue analysis and ot/uer related duties. 4. Skills and knowledge required Do perform job at full working level. (Indicate mandatory credentials or licences, if applicable) A thorough knowledge of the production,~ harvesting, transportation, .. processing, packing and marketing of Ontario agricultural products; significant experience in several aspects of agricultural products; good oral and written communication skills; keen powers of" observation; initiative; independence; ability to prioritize responsibilities independently to deliver an effective inspection program with minimal supervision; tact; diplomacy; and good judgment. Class aliocatioa Class title Class ~ode Occupational group huller Effective da~e Fa~ Products Inspector 2 13642 TS-07 01 02 88 A. Periods a variety o~ skilled inspectional ~d grading f~c~ons of f~it trees. B. Carries out other inspectional, adviso~ ~d regulato~ duties rela~ing to pl~t diseases, ~doned orchards, pests ~d storage facilities, including participating in prosecutions; C. Hires, trains ~d supe~ises seasonal staff. $igna{ure of authorized evaluator. Date Evaluator's Name Mr. Mullln testified %nat in his case his dutie~ involve visiting the wholesale market at the'Terminal. He inspects all produce that is imported. There is also a large farmerJs market at the Terminal at which the farmers sell directly to retailers. Each day, the inspector must tour these markets, take samples: cutting to examine closely, check to see the produce is in the right size containers and that the grade is on the containers with the name and address along with the words "product DE Ontario." He further checks to insure that the produce is packed under the correct pressure and that the quality is correct such as r_here being no discolouring. He also visits packing warehouses in the distr~ct to insure that the repacking'is correct: random samples are taken. The own warehouses and purchase directly from farmers. He also inspects retail outlets usually with the cooperation of the produce manager. 'He can have inadequate produce removed by threatening to detain the produce. If he decides the wholesaler or ~al~er is at fault, he can contact them and have the produce sh~ppe~ Pack. l~ it is a small quantity, the retailer may simply pick out Wna5 is good, if, ~or example~ it was a problem relating to length of time on the shelves. If the goods are not removed, he attaches a Notice o~ Detention (Farm Products Grades & Sales Act s.7) and it is taped so that it cannot be removed. An Inspection Certificate can be issued when someone is unsatisfied about the quality of a product and this is paid for by the person requesting it, as for example, as a pickle Dottling plant. If a detention order is broken, t~en a report is prepared and forwarded to the Director or the Program Manager for prosecution. Weekly, he prepares reports on produce quality, e~fect of weather and what the farmers and others .anticipate. With respect to "resolving quality- related complaints and disputes as a . mediator/conciliator," this grievor described various fact situations where the inspector may mediate disputes between farmers and retailers or customers. If there are serious altercations involving a possibility of viole-nce the inspector may have to bring in the police to carry out his duties. If he is obstructed," the matter may go to court and he would have to testify. When consumers complain, the inspector will visit them at home. It may be just a matter of a refund. If a municipal health department complains that someone got sick from produce, the inspector would forward the produce to the laboratory in Guelph for analysis. The inspector who supervises a location usually hires and trains the seasonal staff. Mr. Mullin testified that he personally-had 'dismissed per diem staff when they were unable to perform. They are also usually hired by the inspector. Prior to the reorganization this was done by the Senior Inspector. Standards are set by the industry and the Ministry carries out the inspection and actual classification of a product. The grievor, Mullin inspects at Campbell Soup along with short term employees. His decision on an appeal inspection is final. Under the Fruit and VegetaDle Quality Improvement Program, the inspector gives the application forms to farmers and visits and inspects the farms when there is an application. Wayne Patterson is the Manager of the Horticultural Crop Program with the Fruit and Vegetable Inspection Branch. He reports to the Director and reporting to him are the ~ive District Supervisors. With respect to the abolition of the Senior Inspector's position, he testified that in certain offices, the Senior Inspectors had had responsibility for specific programs, as ~or example in l~iullin's office, the tomato processing at Campbell's Soup while in some other areas this was not so. But even in the case of tomato processing, it had been the responsibility of inspectors for example in Norfolk County. At this point. I set out the terms of the Class Standard for Farm Products Inspector 2. C~EGORY: Technical Services GROUP: TS-07 Resources Support SERIES: Farm Products Inspector CLA~S CODE: 13642 CLASS STANDARDs FARM PRODUCTS INSPECTOR ~ Employees in positions allocated to this class perform a variety of skilled grading and inspectional functions in relation to fruit, vegetables and honey being marketed for human consumption and other products such as tobacco and Christmas trees, in combination with the enforcement of the various Acts and Regulations administered by.the Farm Products Inspection Branch. They normally work under only general direction o~ a more senior inspector or administrative official whose geographic location may be nearby or remote. In cases where they are geographically remote from their supervisor, they are responsible for the inspectional work in their area and may supervise a small number of seasonal staff. In cases where they are in geographic proximity to their supervisor, they are responsible for specific aspects of the area inspectional work and instruct and supervise a significant number o~ seasonal staff. In some positions, these employees are primarily concerned with the inspection of produce moving from the producing region and, in addition, provide advisory services to the producers. In other positions, the duties may involve producer, wholesale and retail inspection of the quality, packing prices a~d vis-a-vis, weight, etc., of produce. In most cases a number of contracts with a variety of food industry personnel or groups is required. These employees may inspect nursery prunings, stock and trees for variety, Identification, certification or disease control.. Employees in this~ class are .expected to make on the spot decisions daily on inspectlonal proDlems and refer only difficult problems to a senior inspector. They may be required to investigate and resolve consumer complaints concerning the quality, weight and ~price, etc.~ of produce. In addition, they usually participate in the prosecution of violators of the Acts and Regulations and, on occasion, conduct t~e prosecution themselves. Grade 12 education~ preferably a Diploma from a recognized school Agr±¢ult~re or an e~uivalent eon~bination of experience and ~ra±ning. ~o~ma~ly 3 year~' experience as a ~a~ ~rodu¢~$ ~nspe¢~or ~, or a va~i~ equivalent. ~ thorouqh Imowiedge oE al~ ~he Acts and Regulations and Departmental policy related to ~arm inspection. ~eade~s~ip a~i~ity; a~i~ity to develop and mazntazn good relationships with producers, retailers and wholesalers, e~c.; keen powers o~ observation; tact; integrity; good judgment; good physical condition. Revised Februar7 1975 · The general thrust of the. Union's case is that in addition to core functions, the grievors perform a number of important duties which are not dealt with in the Standard. These omitted'duties are 1) duties relating to mediation and conciliation 2) clear responslbility for the hiring and dismissal o~ the casuals 3) the grievors role in the Food and Quality Improvement Program 4) training duties 5) market information reporting work 6) the Controlled Atmosphere Storage Program 7) preDaration of and involvement in Surveys and Reports 8) pesticide residue samDling 9) provision of advisory sources in a general sense and more particularly the Drovision of advisory services to members of the horticultural industry, the public and persons other than producers and I0) the level o~ responsibility that accrued to the grievors ~or the resolution o~ diI~icult proDlems - something that results from the aDolition of the senior inspector position. With respect to the first point, the Union argued that the Standard does not reflect that the inspectors mediate and negotiate between persons i~ dispute: it is not just a matter of applying standards. In this respect it .referred specifically to an incident at the CNE where two booth operators had a dispute over each other's honey ~see Exhibit 20). Certainly, the-grievor .Mul!in gave extensive testimony on' this type o~ role and it is present in the specifications. The Standard refers only to investigating consumer complaints. Interestingly, the mediation function was significantly highlighted in the old Management Compensation Plan. Evaluation Standards for the Senior Inspector "2) The inspection, investigation and mediation of operational disputes by determining cause of action such as denen~-ion or disposal of inferior producrs: ~he tlaison wlt~ o~her regulatory officials such as other branch districts and agencies to ensure ~he uniform application of legislation; provision of ex~ensl ve advice such as advising grievor.s of any immediate problems and when to harvest and market his crop." The Union relied particularl~ on %he Board's decision in Fenske and l~lnistrv o__~ Government Services (GSB 494/85) In that case the grievor was responsible to ensure the maintenance fire alarm systems in all Queen's Park buildings. 'In early 1985 addisional duties had bee added; these included responsibility for preparation and negotiation of maintenance contracts including the writing o~ the specifics of the recfuirements. Also added was .the coordination of training sessions in the case of portable fire extinguishers for district and reg~onai staff. Thirdly,-t~e design, casting and inspection of 5he installation o~ smaller ~ire alarm systems. Fourthly, acting in an advisory capacity as consultant to property managers and c!~ent Ministries in interpreting the Fire Marshall's code and fire department regulations; fifthly, write contract documents for the maintenance o~ burglar alarms by outside contractors and finally, budget information. The Board concluded at pages 14-15~ "Therefore, the issue for determination is whether or not the gr~evor is improperly classified as Services Officer i. Both partles acknowledge that the grievor's duties have increased since tiarch of 1985. The real ~issue is whether %he quantitative changes to the job are also qualitative cha~ges. "In our opinion, the grievor has become atypical of the Services Officer i Class Standard, even though he performs most, if not all, .)~ the core duties of the Class Standard. ~The grievor has acquired a degree of expertise through qualitative changes in his job in the 1]arrow electrical discipline of fire alarm systems that place him ~e¥ond a comfortable ~it within the Services O~ficer i Class LLandard. His expertise acquired over the years oX experience no ionqer justifies the junior classification. In particular, his ~esiqn and advisory responsibilities in coordinating training sessions are not contemplated by the present Class Standard. Neqotiation responsibilities can be similarly characterized: ho~;ever, these duties may not continue because o~ a change in qovernment policy. In our opinion, these added tasks carry with them a degree o~ responsibility, independence and ~udgment beyond %ne ~ervices O~ficer 1 Class Standard. These added responsibilities r~quire the grievor to have a thorough knowledge 'of statutes, regulationsand by-laws governing fire detection a~d alarm systems, :;e are satisfied that the grievor has the required knowledge." Iir. Verity then issued a ~ order. '¥Jith respect to the abolition of the Senior Inspector and the the Reqio~al Supervisor as the grievor~s zmmediate superior ~he Lnat that represented a change in supervisors. The Board was kO. Nus and }-linistry o_~ Correctional Servicek (GSB 203/84). That case '::~.'.-[ned;~i~h the grievances of PO2s (Probation Officer 2s). At'page 71 the ;;lth the effect on the PO2s of the abolition of the PO3 position. Suoezumposed over these changed duties is the changed Area ;~f~agers are frequently absent on other matters ~ in~e~ediage level of supervisor ghe PO3 has Deen phased out. circumsg~ces placed the grievors in a sitsaglon 2n which they were compelled to take initiative and, in essence, work on their own. We recognize ~ha~ ~hey are quasi-professionals and free of derailed and close supervision. We also recognize tha~ ~he PO2 standard ~tself conrempia~es ~,hac 'the PO2 works only under general 'superVls~on. However, that general superVlsion was in par~ provided Dy ~he PO3. Wi~h tha~ level of supervision removed, wha~ remains £s che supervision provided by ~he A~ea Manager, Ye~, as rJ~e evidence indicated, con~act with the Area Managers was infrequent and ~ended ~o concern reporting on general issues of Ministry policy or approval of budget matters. In reality, in rerms of carrying out their various duties and responsibili ties, ~he PO2s were un supervi sed. " 'Then at page 88 when highlighting significant and important factors, ~r. Brandt identified a~ong ~he three factors: "Again ~he degree of con~act varies among th'e various grievors. Summers, working in a satellite office had little contact with his Area Manager. Mr. Charles' Area Manager was away for 60~ .of ~he ~ime and Hr. Ayres' Area Manager was away for only 4-5 days per mon ch ' grievors do ~it the Class Standard. it Ls his position %~at a large part of 5ne core work oi %be gr2evors is within %he first part of the Class Standard, namel~ "...a variety of sk2lled grading and inspectionai functions...in combination w~h the enforcemen~ of the various Acts and Requla~ions adminisEered by the Farm Produc~s Inspections Branch." He also 'argued that the degree of supervision is properly reflected in the second sentence of the Standard. With respect to seasonal staff, he argued that the grievors had no authority to hire or fire seasonal s~aff but could only reco~m~end. They are~only delegated the authority to release at the end o~ the season. He ~urther argued that with respect to their advisory service function to all tyPes of clients - that is only just an intrinsic part of their work. With ~regard to their functions under the Controlled Atmosphere Storage program, the l~inistry argued that it is simply another statutory enforcement function and' their job of being an advisor. He denied that r~ey had a responsiDiiity for ensuring a mediated result in disputes. The Ministry Counsel relied on a number o~ pre-Berrv decisions which i find it unnecessary to review here since they are not directly relevant to a case where the grievor seeks a Berry order rather than a specific higher classification. The most useful authority referred to in this case is undoubtedly the ~ case %{hich carefully a~dthoughtfuily analyzed a mass of complex evidence and %ne impact of .the Berry Divlsionai Court decision. There is in my view a number o~ principal areas where the existing Class Standard has difficulties. It obviously does envisage the existence of the Senior Inspector. The devolution o~ that posltion's functions, some supervisory duties upwards toward the District Supe~;~£or and the rest downwards to the Farm Inspectors was not a minor event. ~ not~o for example, that the referral o~ disputes to ~e Sen~or Inspector .~sa~p~ars. This is directly relevant to the mediating ~unction which the ~ .gr:evors uo, because so to speak for all practical purposes the "bu~k stops" with the ?a~ Products Inspector now. It really is his practical function to mediate bet~,een parties as an inherent and integral part of his job function. Indeed, ~n %~s testimony it seems to me that without that function, the Act and the i,~gul~ticns could not be practically administered. And it wa__~s in the Standard [or tn~ denlor Inspector. Its absence from this standard ~s a serious lacuna in the ~o~ [unction of the Farm Products I~spector. The real authority exercised over seasonal staff by the Farm inspecr.~r also is not adequately reflected in the Class Standard. TO say that he does not hire and fire seasonal staff, because the technical leqa! rules require these to be "recommenaatlons" is unrealistic and unreiated to what reailv does happen. It is something that the management witness did not seriously challenge. To the seasonal employee actually hired by the Farm Inspector and then chased off the job for being drunk on the job or incompetent or let go because the crop was all in, it would be meaningless to tell him that these decisions were only "recommendations". The absence of these key items in themselves require a new Class Standard. The other issues suc~ as the controlled atmosphere program a~d the educational work of the inspectors probably ought to be referred to in a new class standard. 'But I am satisfied that this present Class $'tandard for those two principal reasons alone is not adequate in reflecting the core functions and there must be a reclassification. Accordingly, the grievors are entitled to a Berry order and the reclassification is subject to the usual 20 day retroactivity rule. This reclassification is to De completed expeditzously and this panel will remain selsed over its implementation. DATED at Toronto this30thday .of July , 1990. · g. Browes-Bu~Oen, ~ e er E Ors~n~, He,er