HomeMy WebLinkAbout1988-1098.Brough&Johnson.91-01-04 '*.~..,~*' GRIfiVANCE COMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
180 OUNOA$ STREET WEST. TORONTO. ONTARIO. MSG IZ~ · SUITE2100 TELEPHONE/TEL.~PHONE
180, RUE DttNOA$ OuEST, TORONTO, ~ONTARI01~ MSG IZ8. ~UREAU 2;O0 (41~ 398.06~a
1098/88
IN THE HATTER OF AN ARBITRATION
Under
THE CROWN EHPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLE~IENT BOARD
BETWEEN
OPSEU (Brough/Johnson))
Grievo~r
The Crown in Right of Ontario
(Ministry of Community & Social'Services)
Em[~ 1 oye
B. Fisher Vice-Chairperson
S, R. Hennessy Member
D. P. Olsen Member
FOK THE L. Trachuk
GRIEVOR Counsel
Cornish Roland
Barristers & Solicitors
FOR THE D. Samaras
EHPLOYEH Counsel
Legal~Services Branch
Ministry of Community &
Social Services
HEARING: March 9,'!989
June' 5, 6, 1989
September 12, 1989
Apcil 27, 1990
This is a classification grievance by two employees who work in the
of the Prince Edwards Heights facility, which is a facility for the
stores
department
developmentally handicapped. The f.acility has space f 36~ds al~ough only 260 are at the
mair~ site and the balance are in satellite establishments within a few miles of the main site.
Both grievors are presently classified as Clerk Supply 2.and wish to be
reclassified as Clerk Supply 3. A copy of' the entire Clerk Supply Series is attached as a
Schedule to this decision.
'The preamble sets out that the overriding criterion in determining the
level-in which an employee is assigned within the Clerk Supply Services is the size of the
warehouse as opposed to the specific functions performed within it. The preamble further
goes on to say that in determining the size of stockrooms ia hospitals, the criterion for
measurement is based on bed capacity as residents are often used in the staffing of the
stockroom. The evidence disclosed that residents are utilized in the stockroom at Prince ".
Edward Heights.
Ur~ortunatety, the preamble does not give the reader any concrete
guidelines so that he can determine how many beds constitutes a small stockroom, a medium
stock:room, a large stockroom or a very large stocka'oora.
However, contained in the descriptions of Clerk 4, 5, 6 and 7 Supply are
references to bed sizes for Ontario Hospitals as a guideline in determining the degree of
supervision exercised by the employee.
In other words, the level Of a supervisory employee in a hospital
stockroom is determined as follows:
Number of Beds Level
Less tha~ 100 4
101 - 499 5 '
500 - 999 6
1,000 plus ' 7
These four distinctions correspond neatly into the categories used in the
preamble of small, medium, large and very large stockroom and it seems logical to use the
same criteria to determine these definitions.
If we apply th'is criteria to the Prince Edwards Heights facility, it seems'
· that the. stockroom is properly defined as a medium stockroom as the facility has between
and 499 beds..
I .] Insofar as this facility is a medium stockroom, it cannot contain a
"specialized section" as the term is defined in the preamble, as this feature can only exist in
a large (or presumably very large) stockroom.
The Union argued Mr..lohnson's case both on the standards and usage
test.
With respect to the standards test, in order for the grievor to succeed he
would have to show that not only is he improperly classified as a Clerk 2 Supply but that
Clerk 3 Supply is a better fit.
There is no question that if one looks at the Clerk 2 Supply standard, in
isolation, Mr. Johnson performs all of the tasks set out in the standards. The Union's
argument really is that he also performs significant other tasks which take him out of the
Clerk 2 Supply level and place him more properly in the Clerk 3 Supply leVeL
There are really four ways in which a person can fit into the Clerk 3
Supply level which are conveniently set out in the four paragraphs of the standard. It is
agreed by the parties that Mr. Johnson would not qualify for entry to this level with respect
to either the first or fourth paragraph of the standard. We Will therefore focus on the
following two paragraphs:
'Par. agra_ ph 2 - This class also covers the positions of emoloyees who,
uniter the general supervision of a higher level supply, cFerl/.are in
~ie charge of subsidi ~ary specially, ed technical or t, racle stoclo'ooms,
They requisition supplies; .ensure the careful checking in incom:i.'ng
stocic; the shit~ment ot siocx against authorized requi/itions
the security o'f the stockroom. The responsibility f-or these stockrooms
is a full time occupation o~en including the reph/r a,rid adjustment -
of technical equipment." (emphasis ad/ted)
It would appear that Mr. ,lohnson does not qualify under this paragraph
for the following reasons:,
a) He is not in sole charge of the stockroom area which he
claims is his, that is the stationery and medical supplies area. Stock. keeping involves dual
functions of controlling the incoming of goods (ordering and receiving) and the outgoing
goods (filling requisitions and shipping), Mr. ,Iohnson's evidence was dear that. although he
personally handled ail the ordering of the goods and the bulk of the receiving, he had no
exclmivity over the filling of requisition~ and order~ as this is done by other warehouse
employees as well;
b) The medical and stationery supply area is no~ a "subsidiary
stockroom". This term is defined in the preamble to the cia,ss series as follows:
"A stockroom which is physically sevarated (remotely or by
partition or as a secure compg, und~ from th~ other supply areas
and which, although operate~l as an entity, lorms part ota
larger unit of supply oiganization."
The attached sketch of the Princ~ Edward Heights Facility Stores
Department shows that the medical and stationery supplies are contained in the general
stockroom area and in no way are physically separated from the other product~ stored there.
In fact, grooming supplies are apparently stored in the same shelves as medical supplies, which
Mr..lohnson claims forms part of "his" stockroom.
c) This aspec~ of Mr. Johnson's job is not his full time
occupation. The grievor's evidence, was quite clear that he only spent about 2.5% of his time
involved in the medical and stationery department, whereas the majority of his time was gpent
doing receiving functions for the entire stockroom,
-4-
"Paragraph 3 - This class also covers the portions of employees .
acting as.. group le,aders, Some of these are in charge of functional
units m large stocxrooms, such as shipping or receding. In ail
positions ti:[ey assign and check the work of two more more
subordinate ~personnel".
A useful definition of the term "group leader" is found in the following
excerpt from the Manual of Administration, which was entered as an exhibit:
"A Group Leader usually:
~ 1. Makes daily work assi .gmnents, according to
established methods and procedures.
\2, Lays out work, indicating.sequence of work processes;
~ shows employees how to cio tasks when diffiCnaltie, s arise;
\ checks completeness and accuracy of finished task; gives .
technical advice; keeps supervisor informed of work progress.
]3. Trains new employees by explaining office routine.s, work
procedure, s, use of'equipment or machinery; expl~/n~ precedents
and past clecisions.
J4. Passes supervisor's instrq, ctions to members of work group; ' explains new projects ano assignments.
[5. Recommends changes to exist~g work methods and procedures;.
~k~ reports personnel difficulties.
The gricvor gave evidence as to the degree in which he acts as a group
leader. He testified that he has unclas,si//ed sta~ residents and co-op students as,sisting him
in his work. He advises them both what work is to be done and how to do that work. When
his supervisor, Mr. Vicker~ is away he takes on more supervisory responsibilities. In addition
the grievor trained Mr. Norman McKinlay in the receiving function and checked Mr.
McKiniay's work in receiving from time to time.
The evidence presented with respect to the grievor's activities in this
area was sketchy. It showed that Mr. Johnson, an individual with experience on the job for
over 16 years, from time to time takes on a tr/gnir/g role and answers questions from less
experienced staff. However, the evidence falls short of showing the type of consistent group
leadership activity that would be necessary to show that it formed a core element of his job.
At best his training function was one of an incidental nature, insufficient in scope or
frequency to eievate him to a higher job class. "
Although the grievor performed the majoriw of the receiving ~nc~ions
for the stores dep~-tmer~t (Mr. Greet, the Manager of OPeratiOnal Services, said that
Mr..lohn.son performed 70% of the receiving) he was not in charge of the fun~on as he
bore no responsibility fOr fl~e performance of the baIance of the receiving work when it was
performed by other employees. Moreover, the class standard speaks of '%nctionaI un.i~s in
large stockrooms", and we have already held that this is a medium stoc~oom.
As was mentioned above, w~th respect to the group leadership fi~nctiou,
the evidence is not satisfactory for us to conclude that the grievor, on a co~istent basis,
assigned and checked U~e work of two or more subordL%te persom~el.
We therefore conclude tha~, on the standards test, Mr, Johnson is
properly classlt:ied as a Clerk 2 Supply.
Mr..~ohnson also clalm~ entitlement to the position of Clerk 3 Supply
based on the usage test, and refers to mo i~dividuals; Mr. Hurt~on, a Clerk 3 Supply at the
Rideau Regional Centre and Mr. Clarke, Settlor Linen Clerk Clerk 3 Supply at the Prince
Edward Heights facility.
Both parties acc.~pt the fact that for the usage test to succeed, the
Un/on must show that the job functions of the gr/evor and the other higher classified person
were substantially similar. (Landry GSB #840/84 Vice Chairperson Gorsk'y at pages (~0 and
Therefore, the fit~t question we must ask ourselves is whether or not the
grievor's job wa~ substantially similar to Mr. Hanson's job. Mr. Han~n's lob specification is
set out as an Append/x to this decisiom
It would appear that these are the following significant differences
between Mr. Hamon's and Mr. Johnson's job~:.'
I. The Rideau Regional Centre has approximately 850 beds, thus it is a
large stockroom, not a medium one like Prince Edward Heights.
2. Mr. Hanson's sole function relates to shipping and receiv/ng, and he
is responsible for all thc shipping and receiving at his fac/tity. Mr, Johnson has at lea. st two
-6-
main responsibilities (receMng and ordering medical and stationery supplies) and is only
responsible for receiving that he himself does.
3. Mr. Hansen's work area is set apart from the rest of the warehouse
by controlled access doors wherea~ Mr. ]ohnson works in the general stockroom.
In essence, Mr. Hanson is a full time receiver and Mr. $ohnson is a part-
time receiver and part-time stockkeeper. This fundamental differences negates the value of a
usage comparison between the grievor and Mr. Hansom
The second usage comparison is Bob Clarke, the Senior Linen Clerk at
the Prince Edwards Heights facility. The parties thankfully agreed on'a statement of facts
regarding Mr. Clarke's duties, a copy of which is appended to tttis decision.
It appears that there are significant differences
well.
1. The linen area is separated by a partition from the other supply
areas and thus qualifies as a subsictiary stockroom.
2. Mr. Clarke act. ed as a group leader in that he both assigned and
checked the work of ~'t least two or more subordinate personnel In fact this group leader'
aspe~ constitutes over 50% of his time, according to the job specification, wix/ch both parties
agreed was accurate. We trove already found that Mr. John.sort does not perform group
leadership functious au a consistent aad substantial bm/s.
These differences are substantial enough to deny the grievor the right to
rely on the usage argnmertt in respect at Mr. Clarke.
Mr. Johnson's griev'anc~ is therefore dismissed.
Mr. Brough:
The Uuiart relies solely au the stafidar& test in respect to Mr. Brough.
Mr. Brough was solely responsible for the food area of the storeroom.
He alone did ail of the ordering and distr[butiou of food items stored in the storeroom.
Although the food area is not separated from the balance of the storeroom by a partition it is
a physically distinct subsection of thc store area. He was not generally assisted in the
performance of his duties nor did he work alongside anyone else.
Up until January of I988 the grievor worked with a dietician with respect
to the management of food supplies. The dietician left the em. ploy of the facility in .la~. uary.
1988 and was not replaced, at least up until the grievor quit the employ of the pro~ndal
government in October of 1988. Following the diet/dan's departure, Mr. Brough assumed
various of the dietician's duties, including assisting in the preparation of menus for special
9ccasions, dealing directly with the Food Service Manager employed by an outside agency,
maintaining client records on computer regarding allergies, and reviewing food evaluation~-J/
forms.and monitoring purchased food for quality. He also testified that he was specifically
fold to fill in for-the dietician until they replaced her which he did. - --,
Mr. Greet seemed to pick up some of the dietician's duties also and thus
to some degree he and the grievor simply shared the dietician's duties between them.
If Mr. Johnson is to fit properly w/thin the Clerk 3 Supply level he must
rely on the second paragraph of the standard, which reads as follows:
- "Paragraph 2, This class also covers the t~. sitiom of employees who,
under the general suverdsion of a higher level supply cI'eri/are in
sole charge, of subsidiary spec/al/zed techn/cal or i:/~aite stodcrooms.
The requisition, supplies; ~.nsure. the careful, ch¢ck/n~.in, incomlni
st~; the shipment of stocx against authorized regmsmons and
the se..au-}.'ty ot the stockroom. The responsibility for these stockrooms
is a full time oecupatioa often including the repair and adjustment
of techn/cal equipment." (emphas/s ad//ed)
In order to fit within this sect/on the Union must show that the area in
which Mr. Brough works is one of the following:
1. Subsidiary Stockroom:
Clearly, the food area is not separated from the general stock area
by either partitions or as a seaire compound. The only way it could otherwise qualify as a
subs/diary stockroom is to be physically separ.ate b.y its "remoteness" or geographic separation
based on space.
A close observation of the sketch attached to this decision indicates that
although the food items are generally stocked in the same area (with the notable exception
that along the back walls both stationery and food pallets are stored together) they are not in
any sense physically remote from the rest of the general storage area. The arrangement of
the food area allows general circulation of other staff throughout the area, thereby making it
difficult if not impossible for the grievor to claim that he is responsible for the security of
this area. We therefore conclude that the food area is not a subsidiary stockroom. 2. Specialized Stockroom: '
The definition in the preamble makes it clear that special/zed stockrooms
can only exist~in large stockrooms. As we have previously determined that this is a medium
stockroom, logically this food area cannot fit the definition of a speciaiize:d stockroom. 3. Technical Stockroom:
No definition of this is contained in the preamble, but common sense, tells
us, whatever a technical storeroom is, it is not a place to store groceries.
4. Trade ~tockrooms:
It seems unlikely that the authors of this obtuse class standard intended
that a trade stockroom contained food items, rather, it would seem to imply that it contains
items relating to the tools of a trade, i.e. plumbing supplies or the like.
Thus it seems that whether or not the grie'vor was ia sole charge of the
food area (which we would be inclined to accept), he does not qualify for inclusion within the
Clerk 3 Supply as his work area does not fulfill the necessary definition.
However, even if this impediment did not exist, the Union has failed to
show thai he was responsible for the security of the food area, which is a necessary
component of this level.
However, the Union took the alternative position that if Mr. Brough
would not qualify as a Clerk 3 Supply, a Berry award shouid be .m___nde because of the fact that
his performance of substantial dietician duties for a prolonged period takes his job out of the
Clerk 2 Supply category.
Although there was a dispute as t-O the extent to which Mr. Brough took
over these duties there is not doubt in the Board's mind that, upon the departure of the
dietician Mr. Brough took on some of the dietician duties at the request of management 'and
that these additional duties became a core duty of his job for which he is entitled to be
compensated.
These types of additional duties are clearly not expected from a Clerk 2
Supply, nor are they contemplated in the Clerk 3 Supply level either.
It therefore seems appropriate that a B~rry award be issued. However, as
Mr. Brough is no longer in government service, andas there was no evidence to suggest that
anyone took over Mr. Brough's run. ons upon his departure, it seems not necessary put both
parties to the expense and effor~ to determine a new classification, negotiate or arbitrate a
new wage {ate, and then order only a retroactive payment for the period ~rom July 2, 1988,
(the date upon which both parties agree any award should be retroactive) to October 1988
when the grievOr resigned or at best until May 1989 when the grievor's severance period
apparently expired)
la the unique circumstances of this case, therefore, it seems more
appropriate to simply order a lump sum monetary settlement representing the probable loss to
~he grievor resulting from his improper classii~cat, ion for three months of work and seven
months of apparent "severance".
In all the circumstances it seems that the figure of $500 is appropriate.
If, for some compelling reason, either party feels that a traditional Berry
order is more appropriate (that is au order compelling the Employer to reclassify the grievor
within three months), then they shall present their case. in wri~in$ to the.Board, with a copy
to the other side, within two weeks of the i-eteas¢ date of this decision. Pa that time, the
Board will either call for written argument from the opposite side, order a further hearing
date, or dis_m__~_~ the re,est.
If this Board does not receive any such request within the time flame
stated above, thc $500 order shall be deemed to be confirmed. -
This Board retains jurisdi~ion wi~ respect to the interpretation or
implementation of this decision.
- 10-
DATED at Toronto this 4~:hday Of January , 1991.
' ~'-~i~hcr, ¥ic~-C~airpcrson
"I DISSENT" (D£ssen£ w~chou~ ~ri~en reason)
S. Hennessy