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HomeMy WebLinkAbout1988-0402.Rudder.90-10-31 ONTA RIO EMPL OY~'S DE LA COURONNE CROWN EMPL 0 YEE$ DE L 'ON TARIO GRIEVANCE C,OMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, TORONTO, ONTARIO· M5G IZ8 . SUITE 2100 TELEPHONE/T~L~'PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG IZ8- BUREAU2100 (415)598-0688 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT , / Before ' THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Rudder) Grievor - an4- The Crown in Right of Ontario (Ministry of Health) Employer BEFORE: M. Gorsky Vice-Chairperson M. Vorster Member D. Daugharty Member FOR THE D. Bloom GRIEVOR' Counsel Cavalluzzo, Hayes & Lennon Barristers.& Solicitors FOR THE J. Saunders EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: September 1, 1989 · July 13, 1990 .DFCISION The Grievor, Winston Rudder, filed a grievance on Febhuar¥ 16, 1988, claiming that he was improperly classified as la ClerW 2, Supply, and requested that he be reclassified to the position of Clerk 5, SUPPLY. At the commencement of the hearing, the settlement requested was amended to a claim that the Gr'ievor be reclassified as a Clerk 3, Supply, or in the alternative, that we issue a Berry order. The Grievor has been employed by the Ministry of Health since 1973, and has held the position of Clerk 2, Supply during the entire period of his employment. His employment has always been at the warehouse maintained by the Employer located at 20 Vanley Crescent, Oownsview, Ontario. The Vadley Crescent facility is a pharmaceutical and drug warehouse where a !ahge number of pharmaceutical products .are received, stored and eventually shipped to clients of the Employer such as hospitals. The p.harmaceutical and drug warehouse is in an extremely large building which is divided into a number of functionally related areas. Stock is received from trucks in one area of the building. After being received, the stock is stored in an area referred to as the bulk warehouse where the Grievor has' worked most of.the time since his date of hire, and where he worked at all material times. The bulk warehouse is, physically, large area,and occupies some 20,000 square feet of storage space. Most of the products received at the pharmaceutical and drug warehouse are initially transferred to the bulk warehouse, an exception being certain items requiring refrigeration, including vaccines, referred {o as biologicals. The biologicals are stored in two refrigerators which are located in'the area known as picking and packing. One of the refrigerators was described as being the size of a large room. No dimensions'were given, but it was said to be about the size of the hearing room. The other refrigherator was described as being about two and one-half times the size of a refrigerator associated with home use. Again, no dimensions were furnished. The picking and packing area also contains approximately 20,000 square feet of space. The stock items to be shipped, with the exception of the biologicats, are transferred, in the normal course of operations, from the bulk warehouse to the picking area. These stock items are eventually transferred to the packing area. From the packing area they are transferred'to the shipping area from whence they will be sh'ipped to the clients of the Employer. The Biologicls Clerk has the sole responsibility for receiving, packing and shipping biologicals. The bulk warehouse contains approximately 1,200 different items of stock and the Grievor is responsible for the physical and clerical functions of tran'sferring these items from the receiving department to the bulk warehouse; fok all record keeping functions, and for moving the goods to the point where they can be received into the picking and packing area, He wilt, on _occasion, assist the pickers and the biologicats clerk, and when doing so will perform their functions. Although the Grievor can be said to have a supervisor, ia that his work could be subject to direction from a superior, the evidence disclosed that he maintained the bulk warehouse and carried out alt of the record keeping and other functions necessary to maintain the flow of items from the time of their being received at the warehouse, through their movement from tlqe bulk warehouse to picking and packing, without any direction, He decided what had to be done without checking with anyone, and· then carried out the duties associated with the opera'tion of the bulk warehouse, independently and without any intervention from a superior that could be identified as supervision. The Grievor was also respon'sible for checking that the correct amount and type of stock was received; issuing ~tock to authorized persons and checking stock levels. One of the difficulties'encountered in ·deciding whether the Grievor is properly classified arises from the need to identify the bulk warehouse in the context of the class series, The preamble to the Clerk Supply Series defines stockroom as: "An area specifically designated for the receipt, secure storage and issue of equipment and/or supplies and which requires the full-time attendance of one or more employees. Cabinets, closets or cupboard lock-ups used for the storing of small quantities of materials are excluded." The Clerk Supply Series preamble also defimes subsidiam¥ stockroom as: "A stockroom which is phYsic@lly separated (remotely or by'partition or as a secure compound) from the other supply areas and which, although operated as an entity, forms part of a larger unit of supply organization." It is not possible to regard the'bulk warehouse and the pick and pack areas as subsidiary stockrooms as they are not physically separated from other supply areas, nor are they operated as entities which form part of a larger unit of SuPPly organization (the entire pharmaceutical and drug warehouse). The evidence disclosed that the entire pharmaceutical and drug'warehouse was a single unit of supply organization and that the various areas within it, such.as the bulk warehouse, were'mere way st. ations for the stock received as it moved to the shipping area. The pharmaceutical and drug warehouse is the larger unit of supply organization and the bulk warehouse, and the pick and pack area while they represent entities within it and cannot be treated as subsidiary stockrooms. If Z am wrong in my analysis, I ~ou~d still find the bulk warehouse to be a stockroom. Unless the class standard required that a stockroom be a non-subsidiary stockroom for classification purposes, the distinction would not matter. The Clerk Supply Series preamble also .defines specialized section as: "A component unit'of a large stockroom having a specializec function e.g. plumbing supplies, clothing, lines, office supplies, etc. which may or may not be physically separated o~ partitioned from the main SUPPLY area," The different kinds of stockrooms are defined as follows: "Small ~tockroo~ - This iS a small stockroom operated by one employee or by one employee and an assistant. MEdium Stockroom - This is a stockroom which requires a supervisor and two to four subordinates. L¢rge Stpck~oom - A stockroom which requires a supervisor and five to nine subordinates. Very Large S~9~kroOM - A stockroom which requi?es a supervisor and a m~nimum of ten subordinates," The key to classification under the Clerk Supply Series is said not to be the size of a unit but the staffing called for, and this is set out in the preamble to the Series: "Because of the tremendous variation in the nature and organization of s'tockeeping (sic) functions between departments, the number of staff required for the operation of a particular unit is the only practical basis of comparison for classification-purposes .... Zt is significant that reference is made to "a particular unit" and not to a stockroom~ Reading the various relevant portions of the' preamble, ! conclude that there can be stockrooms within a stockroom. The bulk warehouse can be seen t© be a stockroom and a unit within the -larger stockroom comprising the pharmaceutical and .drug warehouse at 20 Vanley Crescent. Further problems exist because there are portions of the Clerk. Supply Series Class Standard that indicate that the size of a stockroom is not only a function of: "... the number of staff required fop the operation of a particular unit .... " but can be affected by"~ the physical size of the operation, It appears that the size of the stockroom, in a physical sense, has something to do with the size "of stockeeping (sic) operations" For example, in the class definition for the Clerk 3, Supply, the first paragraph refers to: ",.. the positions of employees who alone, maintain a very small stockroom where the record keeping function is elementary. They are responsible for checki~g that the correct amount and type of goods are received, maintaining sec~Jrity, issuing stock to authorized persons and checking stock levels ..." (emphasis added.) The Grievor performs ail of these. The definition of a "small stockroom" in the preamble is !n terms of'one operated Dy only one employee or an employee and an assistant. The use of the term "very" in the class definition points to something more than the number of staff as the basis for identifying a small stockroom But how can a stockroom have fewer than one employee? The Employer evidently decided to make the staffing of a stockroom the determining basis for categorizing it for classification purposes. In the cir'cumstances, Z regard the addition of the word "very", in the Clerk 3, SUPPLY class series as being redundant. The evidence was that for all practical purposes the Orie¥or maintained the bulk warehouse clone. To say that he was under ~;eoera! supervision ignores the fact that he made a!! the decisions as to how he carried out the work required to maintain the bulk warehouse. Although all bargaining unit employees are s~JbJect to some form of supervision, it is clear that when the term "general supervision" is used in the class standard it refers to more than Just the right to tell an employee what result is expected from him or her. Zn the case of the Grievor, he is assigned to the ope'ration of the bulk warehouse but is left to carry out his d,Jties and respbnsibitities as he sees fit. For 7 there to be general supervision, there must be some examples of actual supervision beyond approving time off and vacations. The latter features of supervision along with the making of periodic appraisals of an employee by the supervisor and the existance cf a right to give direction and impose discipline do not~ without more, amount to general supervision The only evidence given at the hearing was that of the Grievor, and it was not undermined in cross-examination in any significant way. The Orievor maintained 'the stockroom in the manner described in the first paragraph of the class definition for the Clerk 3, Supply class Standard. He is alone responsible for checking that the correct amount and type ~f goods are received, he issues stock to authorized persons and he maintains an on-going check o¢ stock levels, and I would find that being left alone as he is, he is also responsible for the security of the bulk'warehouse area. The class definition in the Clerk 2, Supply class standard is as follows: "This class covers the positions of employees performing a variety of routine manual and clerical duties in stockrooms. Under general supervision, they carry out a number of the va~io'~s tasks connected with the receiving, storage, hanC!in9 and distribution of a wide variety of equipment an~ supplies. They check incoming shipments against weigh bills for shortage and damage in transit; check quantities against packing slips and purchase orders; contact suppliers regarding short shipments, delays, back orders etc; place items on shelves or bins, adjusting bin cards to keep perpetual inventory. They also maintain stock ledgers or cards showing the receipt and issue bf all articles including the value of items on hand. They assemble orders for authorized requisitions; tag and address shipments; contact the conveyor and complete necessary records for the transaction. This is a terminal class for employees who perform in a sup¢ly area, simple clerical duties in conjunction 'with tasks requiring the frequent application of considerable physical effort or the operation of mechanical equipment." Assuming that the Orievor's duties and responsibilities were limited to those above described, can it be said that he did so under "general supervision" ? The nature of .the supervision attached to each standard is clearly the distinguishing feature between the class definition of the Clerk 2; Supply and that part of the class definition for the Clerk 3, SuPPly, contained in the paragraph above quoted, Prior to November of 1987, the Grievor worked under the direct supervision of Ernie Pelts, who was the supervisor of the bulk warehouse and held the classification of Clerk 5, Supply. Mr. Pe~ls was responsible for the supervision of as many as four employees', two of whom were were classified ,as Clerk 2, Supply. By the time Mr. Palls retired in November of. 1987, the Grievor was the only employee supervised by him working in the bulk warehouse. When Mr. Pelts retired, the Orievor became solely responsible for maintaining the Sulk warehouse. The GPievor testified that he was uncertair as to who had immediate supervisory responsibility over him after Mr. Pells's retirememt, as no one ever gave him orders or direction as to how he should maintain the bulk warehouse. Exhibit ~ is the Position Specification & Class Allocation form with respect to Mr. Palls. The Grievor testified that he 9 performed a number of the duties and responsibilities of Palls, as listed iQ Exhibit #4, some before and some after Pails' retirement. The summary of duties and responsibilities contained in paragraph 5 of Exhibit ~, relating to Mr. Palls' position as Supervisor, Bulk Warehouse states: "!. Supervises and participates in the receipt of stock items for inventory by: t receiving shipments of 'goods from Receiving & Quality Control with receiving/transfer slip; 2 checking shipment against transfer slip and signing for acceptance; 3 placing material in warehouse location as indicated on the transfer slip; receiving replacement stock from the Receiving Department and signing for same; 5 ,planning and assigning daily workload of Supply Clerks, identifying mriorities, checking to ensure inspection, quality control and record' keeping are in accordance with established procedures; 6 training new SuPply Clerks in work and safety procedures; 7 participating in the routine work of Supply Clerks to relieve heavy backlogs, and to assess quality, control inspection and record keeping procedures and make " recommendations for improvement; 8 recommending merit increases, time off, vacation, disciplin@ry action, resolving day-to-day problems in conjunction with Assistant Manager, Operations; 2, Controls stock movement and performs internal audit by: 1 ensuring regular inspection of physical inventory and the maintenance of perpetual inventory records; 2 conducting counts on stock items when computer and physical inventories are discrepant; 3 ensuring proper rotation of all stock items in bulk warehouse; 'ensurin~ the timely replenishment of discrete warehouse stock; assisting the 'Assistant Manager, Operations by supplying relevant information for the identification of short dated stock, low stock, changes in demand for existing stock to supplement computerized information; utilizing warehouse space economically for the receipt of i'ncoming stock and new product stock (critical t6 changing inventory levels).. Assists the'Assistant Manager in ensuring the Eafe, efficient and effective achievement of operational goals and objectives pertaining to supervising area by: reviewing, recommending and/or commenting on new/revised procedures which may effect or improve operational efficiency. spot checking work methods of all Warehouse Clerks to 'ensure conformity with established procedures and to resolve problems of work flow, recommending improvements to the Assistant Manager, Operations. Supervises the storage and destruction of confidential waste and material by: ensuring that material is.off-loaded from'carriers and secured in designated holding area; determining the volume of material in holding area and scheduling carrier pick-up - approxiamtely two full trailer loads per week (confidential paper) and five to seven skids every three months (wastes); ensuring that material is securely loaded onto carriers' trailer in a timely and effiTient manner. Supervisor, TranspoFt must be consulted to determine appropriate timing; ensuring that the destruction of material is properly monitored by dispatching Supply Clerk to observe the operation; ma'intaining records of material received and picked up until confirmation of destroyed material is received; preparing monthly/annual reports. Performs other duties such as: I establishing a rotating, training programme for subordinates in all aspects of warehousing under''the incumbents jurisdiction; 2 recommending time off, vacation, mon!toring attendance and resolving day-to-day ~roblems with the Assistant Manager, Operations; acting on behalf of Supervisor, Discrete Warehouse in his/her absence; monitoring and implementin~ all Fire Regulations; acting as Fire Marshall for the building and ensures that all staff are aware of Fire Safety Regulations and practices and conducts fire drills in co-operation with Fire Department; 5 the incumbent is responsible for the maintenance a~d observance of hazard free working conditions in accordance with the Occupational Health & Safety Act through the supervision of the daily activities of two cleaners. 6 as assigned." Z have inserted the additiona~ marginal numbers' for ease of identification. Mn. Rudder testified that he performed the duties and responsibilities set out in paragraphs 3.1.t,.2,.3,.~,.5 and. and in paragraphs 3.1.2 and .3. In connection with paragraph 3.2.8, the Grievor testified 'that after Mr. Pulls retired, he assumed the responsiblitity of notifying the Superintendent of the Receiving Department of specific replacement needs. Zn the case 'of paragraph 3.2.5, Mr. Rudder stated that he assisted the Assistant Manager Operations by supplying relevant information as to such items as low stock and changes in demand, after Mr. Pells's retirement.. Mr. Rudder also testified that he was responsible for carrying out the duties listed in paragraph 3.2 6. The Orievor also testified that after Mr. Pells !eft, he assisted the Assi.stant 'Manager in ensuring the safe, efficient and effective achievement of operational goals and oDJectives within the bulk warehouse by discussing with him the matters referred to in paragraph 3.3.1. The Grievor stated that he also performed the duty outlined under paragraph 3.5.4., to the extent that he checked and updated fire extinguishers Under .the summary of duties and responsibilities (para. 3.t.5), it is stated that Mr. Pells, in addition to other duties and responsibilities, wa-s responsible for: "Planning and assigning daily work toad gq Supply Clerks, identifying priorities, 'checking to insure inspection, quality control and record keeping are in accordance with established procedures." There was no suggestion that Mr. Pel!s did not carry out t'his responsibility. The Grievor stated that after Mr. Pe!ls' retirement, he was responsible for planning the daily work load for himself, identifying priorities, and insuring that inspection, quality control and record keeping were in accordance with established procedures. There was no involvement of any supervisor in these functions and, as was noted, there was no evidence on behalf of the Employer to undermine the testimony of the Grievor in this~regard. Among the a~ditional duties and responsibilities of Mr. Pelts (para. 3.3.2), was that of: "Spot checking work method of all Warehouse Clerks to insure conformity with established procedures and to resolve 'problems of work flow, recommending improvements to the Assistant Manager, Operations." The Orievor testified that since Mr. Pells' retirement no one has attended to spot check his work methods to insure conformity with established procedures or to resolve problems of work flow. He stated that he resolves all such problems and that he makes recommendations for improvements to the Assistant Manager, Operations, The only evidence relating to supervision 'of the Grievor, after Mr. Pells' departure, was that he would go to the Supervisor of Receiving or the Supervisor of Pick and Pack with requests for vacation or other time off. The portion of the class definition for the Clerk 5, Supply, above quoted, much more accurately reflects the function of the Orievor than the class definition for the Clerk 2, Supply. The lack of meaningfull supervision of the day-to-day work of the Grievor is the distinguishing feature which makes the Clerk S, Supply classification the appropriate classification for him.. For the same reason, I have no difficulty in concluding that the Grievor does not fit within the Clerk 2, Supply class definition, which envisages much closer supervision Counsel 'for the Grievor also argued that the Grievor's duties and responsiblilities also -could be comfortably accomodated within the second paragraph of the Clerk 3, Genera class definition: "This class also covers the the positions of employees who, under genera] supervision of a higher level supply clerk higher level summiy clerk are in sole charge of subsidiary specialized technical or trade stockrooms. They requisition supplies; ensure the careful checking of incoming stock; the shipment of stock against authorized requisitions and the security .of the stockroom. The responsibility for these stockrooms is a full time occupation often including the repair and adjustment of technical equipment." As is noted above, there was no evidence to show that the Orievor worked, under genera] supervision and to' the extent that he received supervision in the manner above set out, it was not from a higher level supply clerk, Zt was not suggested that he Grievor was covered by any other part Of the Clerk 5, Supply'class.standard. Z am s~tisfied that there is a much better fit of the Grievor'.s duties and responsibilities within the language of the first paragraph of the class definition for the Clerk 5, Supply class standard than within the £terk 2, Supply class standard. Th'is is not only because of the fact that I have found the Grievor to alone maintain the bulk warehouse within the meaning of paragraph one of the Clerk 5, Supply ctass definition, but because of the evidence which indicated that the Orievor carrier out a considerable number of duties and responsibilities former!~' performed out by Mr, Pells and which were found within the Clerk 5, .Supply, class definition but were absent from the Clerk 2, Supply class ~tandard, I have found that the Grievor is alone responsible for maintaining, the bulk warehouse as ~escrib~n~ the first o~,~. ~ of the Clerk 3, Supply class standard. T~ duties and responsibiq~ties of the Gr~evon would appear to be greater t~3n those envisaged in the case of employees covered by the paragraph of the Clerk 3, Supply class definition ~ecause of his having assumed those formerly performed by Mr. Pe~ls, above referred to. At the same time, both his duties and responsibilities and the nature of h~s supervision prevent him from fitting within the Clerk 2, Supply class definition. The' reference to supervision is vital to that class definition and the Orievor's akibe maintaining the bulk warehouse makes it inappropriate to place him within the Clerk 2, Supply series, In the case of M~rs~a!l, 7733/86 (Verity), which was relied upon by counsel for the Employer,the board stated (at page ll): "However, the Board is not satisfied that the classification claimed is an appropriate ctassificat'ion to adequately reflect the Orievor's' actual duties and responsibilities. In our opinion, the Orievor's office cannot be characterized as a very small stockroom as contemplated by the first paragraph of the Clerk 3 definition. Similarly, the Orievor's office is not subsidiary specialized or technical or trade stockroom as specified in the second paragraph of the Clerk 3 definition ..... " ~n the case before us, the same problem does not militate againstrthe classification as claimed. In the case before us, by the Employer's own definition, the Grievor works in a small stockroom. There was nothing in the language of the class series which would require the the word "very" in the relevant portion !5 of the Clerk 3, Supm!y class'definition, be given ~ meaning which would differ from the kinds of stockrooms delineated by the Employer as regulating the placement of employees within the series, tn the case before us, the duties and responsibilities of the Grievor are much closer to those of the Clerk 3, Supp]~, than was the case in Mnrshall. If we had concluded that the Grievor did not fit within the Clerk 3, Supply class standard and could not find and appropriate classification for him, we would have issued a Berry order as the Clerk 2, Supply class standard lacked a significant compensable feature: the Grievor did not function under general supervision was alone responsible for a stockroom. In Se~rs, ~6/88 (Barrett), the grievor failed in. h.i~ attempt to be reclassified as a Clerk 5, Supply from a 'Clerk 2, SuPply , because his position, did not involve "all of the compensable features required by" the class definition In that case, he was not "in sole charge" of a stockroom as required by pacagraph two of the class definition, nor did he ~'alone maintain" a stockroom within the second paragraph of the class definition..Having found that the grievor did not have the desree of control required Dy the two maragraphs referred to, the Board found that the grievor's duties were a close fit with the Clerk 2, Supply class standard. The case before us differs 'in two significant respects from the Sears case. The Grievor is atone responsible 'Yor a small stockroom and his assumption of many of Mr. Pe!ls's duties .and responsibilities has the effect of making the Grievor's fit into the Clerk 2, Supply classification an uncomfortaDle one. In the circumstances,. .~ and for the ~bove r~a~on~~ ~ ~, the grievance succeeds, It was agreed that if the grievance succeeded that the Board would retain Jurisdiction should the parties encounter difficulty in implemanting the Award. The usual twenty day compensation rule wilt apply in this case. DATED AT Toronto, Ontario this 31st day of october l'ggo., i,~~l~ M. R, Goreky Vice-Chairperson M. ¥orster Member Member