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HomeMy WebLinkAbout1988-1077.Keeling.90-02-06': ; ONTARIO EMPLOY~:S DE LA COURONNE '* .' CROWN EMPLOYEES DE L 'ONTARiO GRIEVANCE C,OMMISSION DE -//3' SETTLEMENT REGLEMENT BOARD DES GRIEFS 18'0 DUNDAS STREET WEST, TORONTO, ONTARIO. MSG 1Z8- SUITE2100 TELEPHONE/TI~L~PHONE 180, RUE DUNDAS OUEST, TORONTO, (ONTARIO) MSG 1Z8 - BUREAU 2100 (415) 598.0688 1077/88 IN THE HATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD Between: OLBEU (D. Keeling) · Grievor '- and - The Crown in Right of Ontario (Liquor Control Board of Ontario) Employer Before: M.V. Watters Vice-ChairpersOn J. Solberg Member M. O'Toole Member Fo/ the Grievor: E. Mitchell Counsel Koskie & Minsky Barristers & Solicitors For the Employer: S. Shamie Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors Hearings: March 10, 1989 September 14, 1989 OECISION This proceeding arises from the g~ievance of Ms. Donna Keeling dated october 11, 1988, At all material times, the grievor was employed as a Clerk 2 in the Photo Card Oepartmen~ of the Ontario Liquor Licence Board. The grievance claimed that she was improperly classified at that level and requested reclassification to Clerk 3, The Union argued the merits of the case under 'both the 'standards' and 'usage' tests. It is now beyond dispute that such an approach is appropriate in classification grievances brought before this Board. Specifically, the right to resort to both grounds was approved by the Divisional Court in Ontario Public Service Employees' Union v. The Queen In Right of Ontario et al., dO O.R. (2d) t42. For purposes of this ~ward each of the arguments are dealt with separately below, The grievor has worked as a Clerk 2 in tme Photo Card Department for the past five (5) years. This Department is responsible'for receiving and reviewing applications for photo cards which are forwarded to the L.L.B.O. by those persons, usually around the age of nineteen (19), who wish to secure proof of age to facilitate the purchase of alcoholic beverages at stores or in licensed premises. Photo cards are Subsequently issued to these individuals if the application is deemed ko be in order. The processing period from receipt of application to issuance of the card is approximately three (3) to four (4) weeks. When the grievor first started in the Department in 1984, 1 it was comprised of six (5) Clerks and ~he Manager, a Hr. Bible. ~hereafter, a series of organizational changes have occurred such that, as of the date of the grievance, the grievor was the sole full-time Clerk within the DeparHment. From time to time, she was assisted by Hemporary and summer staff. Subsequent to Mr. Bible's retirement in Nay, 1987, the grievor reported directly to Hr. Wayne Jackson, Manager-Operations SupporH. This gentleman is responsible, inter Blia, for the operation of the Photo Card Department. Just prior to the grievance an additional level o~ supervision was created in the form o~ She Supervisor-Support Service. This posiHion was ocdupied by Ns. V. LeClair as of August, 1988. Recently, the number of phoHo cards issued by ~he Depar~men~ has been declining. The figures for ~he 198~ to 1988 period are as follows: 1984-1'985 ................................... 54,78~ 1985-1985 .................................... ~5,013 1955-1987 ........ ' 27,663 1987-1988 ........................ '...' .... ' .... 11,583 This decline appears to be related to the use of the photo card licence which apparently is considered as sufficient proo~ of age in licensed establishments. Further, the requirement tha~ applications be certified by a ~uaran~or ~as made the process somewhat more stringent. The Position description of the grievors'$ joD reads · Purpose of Position -To ensure the efficient an~ effective issuance of Ontario Photo Cards by performing clerical and some related typing duties. 2 ~u~ies and Resmons bitities Under the general supervision of the Supervisor', Support Services: - processes Ontario Photo Card applications received from mail or hand deliveries, by ensuring completeness,. .accuracy, and appropriate fees received; - checks applications against established guidelines and procedures for eligibility; - returns ineligible applications to sender via form letter' requesting additional information as needed; - gathers necessary information from eligible applications to be typed on Ontario Photo Cards; ' - laminates, cuts, and mails card to applicant, maintainin9 a copy of original card and filing in numerical/alphabetical order; - responds to telephone/in-person inquiries, providing routine information regarding the necessary, procedures and requirements for obtaining an Ontario Photo Card; - maintains adequate stock of office forms and supplies, re-ordering when necessary; - assists in the preparation and compilation of data for monthly statistical reports. Position Reauiremen[s - Ability to perform routine clerical functions; - Good knowledge of office procedures including routine filing; - Ability to process applications Dy verifying information, checking for accuracy and completeness; - Accurate typing skills not to Ontario Government Standards; - Good interpersonal and telephone skills to respond to enquiries in a tactful and courteous manner; - Ability to learn and understand Ontario Photo Card eligibility requirements and relay this information to &he public; - Ability to assist in the preparation of basic monthly statistical reports by compiling data; - Other related duties, as assigned." The parties did not seriously dispute the accuracy of the above job description. The Board would agree that it generally captures most of the significant functions undertaken by the grievor in respect of the photo card process. The grievor, in her evidence, expanded on her various duties. It is unnecessary to reproduce all of that testimony herein. The following elements should be specifically noted however: .(i) the grievor spends a considerable amount of time on the telephone each day. She estimated that, on average, she receives between twenty (20) and thirty (30) calls per day from persons inquiring as to the status of their applications or from prospective applicants wishing to. know more about the process. Generally, such contacts are of a routine nature although from time to time, the grievor would be called upon to respond to "unusual calls". Mr. Jackson stated that he was aware the grievor occasionally took such calls and that she attempted to answer same. He never instructed her to cease this practice notwithstanding that such was, in his opinion, outside of the expectations of the position. (ii) the grievor testified that, if she had doubts as to the validity or competency of a guarantor, she might on her own initiative contact same to verify the certification. She estimated that this type of checking would involve three (3) to four (4) telephone calls per day. Mr. Jackson again responded that this follow-up was not a job requirement. Indeed, he suggested that the application should be rejected if there was a serious question as to the sufficiency of the guarantor. In his assessment, to do otherwise would unnecessarily serve to increase the heavy volume of work. Mr. Jackson was aware, nonetheless, that the grievor occasionally made this sort of contact with guarantors. The grievor also completes a form in respect of applications which she believes are fraudulent. This involves the typing of three(3) %o four (4) lines of text outlining the nature of the problem, This document is then given to Mr. Jackson for his decision. We were advised that such form was utilized infrequently throughout the year, and that 'prior to the creation of same, the grievor simply 'handed the contested application and card to Mr. Bible. (iii)the grievor deals with approximately five (15) to seven (7) persons per day who come to the counter for service. We were told that applications submitted to her in this fashion are processed on a same-day basis. (iv) the grievor balances the revenue collected with the number of applications received. Additionally, she keeps track of rejected applications as the funds accompanying same are recorded separately. Apparently, such money is not immediately returned with the rejected application as there is an expectation that the request will be re-submitted once corrected, In any event, this balancing is done'~n a daily basis and then given to Ms, M. O'Halloran, a Clerk 3, for verification. Ns, O'Halloran then proceeds to prepare the requisite deposit forms, Subsequently, the grievor employs the daily figures to create a monthly record showing number of mail and counter applications; number of rejections; and number of cards issued both for the month as well as for the year to date, This monthly record is'prepared by the grievor for Mr. Jackson"s signature. It was the grievor's evidence that the daily and monthly recording was done by Mr, Bible prior to his retirement, (v) the grievor completes a purchase order or requisition form if supplies for the office are running low. Such form is ultimately signed by Nr. Jackson and then taken by the grieyor to the Purchasing Department, As noted by Mr, Jackson, the grievor does not have signing authority with respect to the purchase order. He stated further that while he doesn't double check the need for supplies, he might change the quantities to be ordered. It was the grievor's evidence that this task was previously performed by Mr. Bible. (vi) the grievor arranges for the storage and shredding o~ applications. The time periods relevant to this process are pre-determined by the Licensing And Permits Branch, These responsibilities were formerly shared with a number of other Clerks in the department. The' grievor testified that she is also responsible for responding to requests from L.C,8,0, stores across the Province for application forms, This ~unction had in the past been performed by another department. 5 (vii)the grievor testified that she ~n~tmucts temporary staff and summer students on the photo card process and that she rotates them through it's various components. Specifically, she would show the new staff what to and on being satisfied they could effectively complete same, they would be assigned to learn another function. The grievor indicated she would decide which tasks would be allocated, and in what order, without any input from her superiors. Mr. JacKson did not significantly dispute the grievor's evidence. In his opinion, however, these efforts did not constitute supervision per se. Rather, the grievor was s~mply familiarizing a co-worker with the photo card process. While he agreed ShelWOU]d train staff in same, it was noted that problems arising were to be brought directly to his attention. Mr. Jackson also indicated that Ms. Le Clair was responsible for the "flow of work" after her arrival in August, 1988. (viii)the grievor advised that she worked under minimal supervision and that she was essentially "left'on her Own". She stated that she might not see Mr. Jackson for several days at a time. Itlwas conceded that she might see Ms. Le Clair more frequently, as the latter was responsible for the typing pool located in the same general area as her department. Hr. Jackson testified that the grievor did not require intensive supervision as the job was routine and one which she had performed for a substantial period of time. The crlass standards, for Clerk Grade 2 and 3 read as follows: CLFRK GRADE 2 This level covers positions performing SUMMARY OF clerical tasks of limited complexity. The RESPONSIBILITY work requires an understanding of standard LEVEL clerical methods that are carried out in accordan6e with established procedures, unOer a set of detailed instructions. Duties may include maintaining a filing system for documents and records, completing various forms (i.e. customs, warehouse manifests, or insurance), compiling simple reports, and summaries from existing records. TYPICAL Operation of simple office machines such as DUTIES telex, offset press or photocopier would be expected. Initiation of standardized form letters, acknowledgements and reminders would be expected. May also do a small amount of typing. Limited decision making is required with regard to the setting of work schedules and the way an assignment is undertaken. individual work assignments are usually reviewed by the supervisor, except in the DECISION case of routine jobs. Deviation from MAKING/ standard practice is referred to the COMPLEXITY supervisoF. More difficult tasks are preceded by detailed instructions or ~re monitored closely. Prime responsibility is for accuracy and an acceptable rate of production. Contacts are generally limited to members of the work unit although considerable telephone CONTACTS contact is made with individuals outside the units. Rarely are contacts made outside LCBO/LLBO. No supervisory responsibility but may provide SUPERVISION general information and assistance to staff GIVEN performing related tasks. Work is performed under supervision. Supervisors outline detailed guidelines SUPERVISZON (either written or oral) for .undertaking RECEIVED the tasks and review completed work for accuracy and thoroughness. Completion of two years of secondary ENTRANCE schooling or equivalent. A minimum of 1 'QUALIFICATZONS year of related clerical experience. CLERK GRADE 3 SUNNARY OF This level covers positions performing RESPONSIBILITY clerical tasks of some complexity. LEVEL The work requires a background knowledge of regulations, statutes and Board operations. 7 Duties may include creation, maintenance and processing of files and records (i.e. breakage and claims forms, establishment licensing files, receivals forms, personnel files etc). Other duties may include TYPICAL preparation of standard factual reports or DUTIES memoranda based on routine compilation of data. May operate office machines ~n execution of duties. May handle telephone calls and personal callers. May also do a small amount of typing. Initiative is needed in following up on errors and making necessary corrections. DECISION Limited judgment is applied in selection MAKING/ and interpretation of data and in proposing COMPLEXITY options within a framework of policy or practice. For the majority of positions, contact is limited to staff in the work unit or to other CONTACTS LCBO/LLBO personnel, Contacts outside LOBO/LLBO are usually on straight forward and factual issues. In some cases, clerks at this level will oversee the work of a small team - for SUPERVISION intermittent periods of time, providing GIVEN guidance when needed. Work is performed under supervision. Instructions are clearly delineated at the' beginning of the assignment. Because of general experience and knowledge of the work "SUPERVISION environment, there is little need for RECEIVED detailed guidance or instructions. Work is reviewed only periodically for adherence to established policy and procedure.. In some instances it is possible to only spot check completed assignments. Completion of two years secondary schooling ENTRANCE or equivalent, A minimum of 2 years of QUALIFICATIONS related clerical experience. 8 The issue as to the proper classification for persons working in the Ontario Photo Card Department has previously come before this Board.in Batho, 429/83 (Roberts). In that instance, the grievor sought reclassification from a Typist 2 to a Clerk Grade 3. At that juncture, there were four (4) persons in the Department Who were responsible for the processing of the applications in question. The Board af2~r assessing the evidence presented, in the context of the class standards, concluded that Clerk GE&de 2 was the appropriate classification. In so finding, it reached the following conclusions: " The classification of Clerk Grade 2 appears to be well adapted to a job such as that at hand, the core duties of which are of a routine nature. This is best seen upon examination and application of the criterion of "responsibility level". The celevant factor differentiating this criterion in Grade 2 from that in Grade 3 seems to reside in the complexity of the work. The classification of Clerk Grade 2 requires a "limited" degree ~f complexity. The classification of Clerk Grade 3 requires "some complexity". Because there is nothing very complex, in the sense of being complicated or i ctricate, in a routine job, the job most appropriately must be characterized as of limited complexity within the meaning of the classification of Clerk Grade 2." (page 6) " As to the next criterion, which is "decision making/ complexity", it seems that the relevant differentiati, ng factor is "initiative", The classification of Clerk Grade 2 requires the exercise of little, if any, initiative, while Clerk Grade 3 requires the.exercise of limited initiative in, e.g., "following-up on errors and making necessary corrections." The routine of processing Ontario Photo Card Applications, on the evidence, appears to involve the- exercise of little, if any, initiative, within the meaning used in the classification of Clerk Grade 2. There is little real responsibility for following up on errors or making necessary corrections." (page 7) 9 " The grievor would not be expected'to supervise, but rather familiarize the summer student with the operation of the photographic and laminating equipment, and the various procedures involved in the routine of processing applications for Ontario Photo cards." (page 4) With respect to the criterion of "Supervision Given", the Board found that the bulk Ofr the grievor's job involved none. It viewed the assistance given to summer students as the provision of "general information and assistance to staff performing related tasks" as per the Clerk 2 standards, With respect to "Supervision Received", the Board concluded that the duties of' the grievor were compatible with either clerk 2 or Clerk 3. The award noted that. there was little direct supervision of the grievor. It was the conclusion of the Board that "this seems to be due more to the fact that they are performing routine duties than that they have been delegated a significant degree of independent discretion or responsibility" (page 8). Ultimately, the Board was not persuaded that the lack of direct supervision could be given great weight in determining the classification of the job of the.grievor. Reference was not made in the award to telephone contacts with actual or prospective'applicants, On the evidence before it , the Board found that the contacts were generally limited to members of the work unit within the meaning of the Clerk 2 class standards, I~ was the position of the Union tWat the Batho case is distinguishable'in that significant changes of a qualitative 10 nature have subseQue~tly occurred in the job. It no~ed, firstly, that the Department is now smaller in terms of the number of Clerks employed therein on a full-time basis. Secondly, it submitted that the making of telephone calls and the handling- recording of money, neither of which were referred to in BathO, now constitute significant job functions. Thirdly, it argued that the training offered by the grievor to temporary staff and summer students contai'~s an eiement of supervision. Additionally, counsel compared the specific job duties performed by the grievor to. the evaluation criteria contained within the respective class standards. We were urged to find that they fit- best within the Clerk 3 standards, In response, it was the position of the Employer that the Batho a~ard is "strikingly similar" tO the situation now before this Board and for that reason should be followed. In this regard, it was submitted that the changes ~o .the job have been quantitative, rather than qualitative, and are insufficient by themselves ~o trigger a reclassification. Counsel further argued that the job duties of the grievor,.as isolated above, best fit the present classification. The class s~andards now before us, like many others reviewed by this Board, are lacking in precision in ~erms of the language employed therein. It is often difficult in cases of this nature to reach firm conclusions as to the intent of ~he standards given 11 their cryptical construction. Notwithstanding this difficulty, this Board must accept the class standards as we find them. Our task is to determine which of the standards tendered Pest reflects the job actually performed by this grievor: see Levere. 1141/85 (Watters) and FloQd, 0881/85 (Knopf). After a consideration of alt of the evidence and argument, we would agree with the conclusion reach in Batho that the core duties of the job are of a routine nature reflecting a "limited" degree of complexity. We find that the work is conducted in accordance with established procedures and that there is little room for variance. The Board is also unable to agree that a significant amount of background knowledge of statutes and regulations is required to perform the tasks in the Photo Card Department. Rather, we think that the primary responsibility in checking applications is to ensure the proper age of the applicant and the'existence of a competent guarantor. This does not demand significant understanding of legislation. Generally, it is our assessment that the level of responsibility falls within the Clerk 2 standard. The criterion of Typical.Outiss is not particularly helpful to the resolution of the instant dispute. The Clerk 2 standards refer to completion of various forms and compilation of simple reports and summaries from existing records. The Clerk 3 standards speak of the creation of files and records and the 12 preparation of standard factual reports or memoranda based on routine compilation of data. While it is arguable that the reporting tasks and the completion of purchase orders could fit into the language of either standard, we are more inclined to consider same as examples of "simple reports and summaries" rather than "standard factual reports or memoranda". Maintenance of the old applications would appear to fall squarely within the opening sentence of the Clerk'2 standards. Similarly, the use of standard form letters is specifically contemplated within such .standards. We would agree with the comment in Batho that the technical aspect of the'position, ie. the opera~ion of the camera and laminating machine is relatively uncomplicated. This aspect of the work, together with the physical act of shredding, would likely be encompassed by the language of both classifications. Unlike the Clerk 3 class standard, the criteria of "Typical Duties in respect of the Clerk 2 does not refer to the handling of telephone calls and personal callers. It is undisputed that th; grievor deals with both telephone and over-the-counter inquiries. In this respect, the Clerk 3 standards more closely reflect that aspec~ of the grievors job.. On balance however, while the language contained within this criterion is somewhat' equivocal, we have not been persuaded that the higher standar~ provides a better fit. Additionally, while there have certainly been accretions to the job since Bath o, we cannot find that they have altered the nature of the position in a qualitative sense. To the contrary, the new tasks assigned reflect work of limited 13 complexity and are analogous to the typical duties contemplated at the lower level. Increased quantity of work does not by itself affect the quality of same So as to justify a reclassification: see Lqnl~iss, 1643/84 (verity). In this regard, the grievor herself stated: "its not a hard job, there are just a tot of tasks involved,m` The Board also concurs wi'th the conclusion reached in Batho that the processing of. photo card applications involves the exercise of little initiative. While the grievor gave evidence as to the steps taken to deal with questionable guarantors, this does not appear to be a required duty. An application giving rise to such suspicion may be rejected with notification to the applicant by way of standard form letter as to the reason for such treatment. Indeed to do otherwise might complicate the grievor's situation given the high volume of work. While the Employer was aware that the grievor occasionally contacted guarantors and may have dealt with matter~ of some substance over the .telephone, this case may be distinguished from K~lly, 1362/85 (Fisher), There, the Employer knew that a substantial number of supervisory duties, falling outside of thelclassification, had been actually delegated to the grievor. The Board in that instance properly held that the Employer had condoned the delegation and was therefore precluded from arguing that the duties had been voluntarily assumed. We thi~k that the extent of the duties performed at the higher level in Kelly serves to 14 disti~nguish that case from the one now before this Board, In any event, such contacts in our assessment do not constitute a material part of the grievor's daily responsibility. Further, we do not consider that the grievor's efforts in respect of fraudulent applications is more consistent with the higher classification, As noted above, that activity is designed to identify an apparent problem for Hr. Jackson's ultimate resolution. This type of referral is arguably proviOed for in the Clerk 2 class standards in that "deviation from standard practice is referred to the supervisor," Finally, it is the Boards's finding that the grie.vor is primarily responsible t° ensure accuracy in the application process at an acceptable rate of production. We are not satisfied that she either selects or interprets data or proposes options within a frame work of policy or-practice. The Batho award does not contain extensive comment on the criterion of 'Contacts'. No reference is found therein to the type of telephone and over the counter contacts made by this grievor. The Board there concluded that contacts were generally limited to members of the work unit and therefore fell within the Clerk 2 class standards, The language found in the Clerk 2 standards is not very clear in it's import, It states that contacts are generally limited to members of the work unit" a]though considerable telephone contact is made with individuals outside the units". The following sentence which indicates that 15 "rare]y are contacts made outside LCSO/LLBO" suggests to us that these telephone contacts are meant to catch communications with LCBO/LLBO staff outside of the unit rather than with members of the general public, In this respect the Clerk 3 criterion, which contemplates external contacts on straight forward and factual issues better reflects the grievor's duties, This Board concludes, asmdid the panel in Batho, that the grievor's training of temporary workers and summer students does not constitute the provision of supervision. We find it to be more consistent with the provision of "general information and assistance to s~aff performing related'tasks". It is our opinion, that the grievor does not oversee the work of a small team in the supervisory sense. Rather, she familiarizes the employees in question as to various components of the photo card process. While the grievor would determine the sequence of training, after August 1988, she was not responsible-for the "flow of work". AdditiOnally, it would seem that throughout the period under consideration, problems of a supervisory nature would be directed [o MK. Jackson. [n summary, we find the grievor's duties to be more closely related to training than supervision. The fact that she is now the sole Clerk engaged such is insufficient to change the character of the responsibility. 16 It is clear from the evidence presented that the grievor receives limited supervision in the performance of her daily responsibilities, This is likely a consequence of two (2) factors; firstly, the grievor has considerable experience in the job, and secondly, the job is routine in nature, we are in agreement with the Board in Eatho that the lack of supervision cannot be given great weight in determining the classification of the job of the grievor, As is readily apparent from the above analysis, neither the present nor claimed standards, provide a perfect, fit vis a vis the duties performed by the grievor, There are aspects of standards which may reasonably be construed as applying to the photo card clerk position, Nonetheless, after considering all of the evidence, we are unable to :onclude that the Clerk Grade 3 class standards provide the "best fit", The Board is consequently unable to find in favour of the Union under the first ground relied on in support of the reclassification claimed. Ns N. O'Halloffan, & Clerk 3 ~n the Special Occasions Permi~ (S.O.P.) Department was called by the Union as it's usage witness. The $,0.P. Department adjoins the Photo Card Department. 'It is staffed by four (~} Clerk 3's and one (1) Clerk 4. The Supervisor of the Department is Hs. V, Dempsey. Ms. O'Haltoran's evidence was focused, understandably, on the nature of her job responsiDili%ies as of the Gate of the grievance. This evidence may De summarized as follows: (i) the largest part of her day (estimated at seventy-five to eighty percent) is devoted to the checking of $.0.P. .applications for the Toronto area. These applications which arrive through the mail and by persons attending at the counter are first screened by counter clerks of whom more will be said below. They are then forwarded to the typing pool to be transposed onto the permit form. Thereafter, Ms. O'Halloran is required to check the documentation. The specific checks undertaken incluOe the following": (a) name of the applicant; (b) the physical location of the event; (c) the date and time of the event; (d) whether minors wilt be attending at the event; (e) the quantity of spirits available; (f) the nature of the event; (g) whether the event is advertised; (h) disposition of the proceeds from the event; and (i) whether food is to be served and, if so, under what conditions. The information provided under each of these headings will determine eligibility for a permit; the type of permit to be granted; the conditions tO be attached to same; the number of persons'who m~y participate in the event; and the fee to be charged for the permit, Assuming everything to be in order, Ms. O'Halloran disburses copies of the permit to all interested parties, including the applicable police Department; (ii) Ms. O'Halloran is the sole person involved with the processilng of $,0.P. applications forwarded by Embassies and Consulates. This process is similar to that employed in re~pect of other $.0.P. applications with the exception that it is often performed on very short noticem The Board was informed that on occasion a permit would have to be processed within four (4) hours for the Chairman's signature. The majority of telephone calls received by this witness related to this branch of her responsibilities, It wams estimated that Ms. O'Halloran receives between two (2) and ten (10) telephone calls per day. (iii) Ms. O'Halloran also engages in a revenue function for the Photo Card Department. Each day she receives from the grievor a record of applications and rejections together with all revenue Collected. The grievor's initial reconciliation is reviewed after which Ms. O'Halloran prepares a revenue collection form. This form and the revenue is subsequently given to the cashier and is ultimately directed to the Accounts Oepartment. As part of this process, Ms. O'Halloran may be required to handle situations involving N.S.F. cheques and requests for 18 refunds, Additionally, she maintains the Card Control Register which provides a means of reconciling the numDer of cards issued with the revenue received. The Employer referred to Hs, O'Hal]oran's position as a Revenue Clerk, This title was di'sputed by the grievor. While we do not place any significance in the title per se, it is our impression that it derived from a time when Ms. O'Halloran handled a substantial amount'of money for a number of departments. This is no longer the case as her revenue function is now limited to the Photo Card Department, (iv) Ms. O'Halloran also assists on a relief basis in the Photo Card Department while the grievor is at lunch, during peak periods, and at the end of the day. While there, she performs substantially the same tasks as would normally be undertaken by the grievor. It was estimated that two (2) hours per day on average was devoted to photo card work. (v) Ms. O'Halloran testified that she might also train temporary workers and summer students. It would appear from her evidence that any training provided was for a shorter period of time than that given by the grievor in her department. With respect to supervision received, Ms. O'Halloran reports to Ms. Oempsey who holds a position equivalent to Mr. Jackson. This reporting is in respect of the $.0.P. work. She reports to Hr. Jackson vis a vis the photo card work. Further, Ns. O'Halloran perioOical]y checks her S.O.P. work with the clerk 4 in that department. ('vi) Lastly, the Boa'rd was advised that there are three (3) "counter-clerks" in the S.O.P. Department each of whom are classified at the Clerk 3 level. These individuals receive the applications coming in through the mai] and over the counter; take in the revenue associated ~.ith same; and respond to telephone inquiries. It was the position of the Union that the duties of the grievor and Ms. O'Hat]oran are virtually the same. Counsel noted that for at least two (2) hours per day their tasks are identical. It was further submitted that for the balance of the' day the 'respective work is substantially similar in'that both employees (i) receive application forms and check same for accuracy; (ii) issue the item applied for; (iii) handle telephone calls and engage iln over the counter work; (iv) share 19 responsibility for balancing of funds; and serve as resource persons for temporary staff, including students. We were also urged to find that the differences in their Jobs, especially in respect of training provided and supervision received favoured the grievor. Specifically, it was submitted that she gave more of the former and received less of the latter than dig Ms. O'Hatloran. For these reasons, the Union argued that the grievor should be classified at the same level as Ms. O'Hatloran. Alternately, reference was made to the duties performed by the counter-clerks in the S.O.P. Department. We were asked conclude that these duties were similar in nature to those performed by the grievor and that such similadity reclassification to Clerk Grade 3. In response, the Employer asserted that the grievor's duties are not identical to those'performed Dy Ms. O'Halloran. It was submitted tha~ in'respect of the revenue function in the Photo Card Department, Hs. O'Halloran has the ultimate responsibility -and accountability in contrast to the grievor who simply provides for an initial accoun=ing, Counsel noted ~ha~ =he grievor only fills in for Ns, O'Halloran in respect of [hi's specific =ask when she is away from the office due to illness or vacation. Secondly, it was argued that ~he S.O.P. process, including that relating to Diplomatic and Consular permits, is materially different from the work performed in the Pho[o Card Departmen~ ~n that it is more complex, requires grea~er checking, and mus~ 2O be completed under more stringent time constraints, Alternately, counsel argued that the Union had not established a'consistent practice of variation of the class standards on ~the part of the Employer, It was his submission that this requirement was not satisfied by the Union as it had only identified one (1) employee in the higher classification who allegedly performed the same work as the grievor, Lastly, it should be noted that counsel for the Employer objected to Mr. Jackson being cross-examined with respect' to the duties of the counter-clerks. It was his submission that as Ms. O'Halloran was the sole usage witness called by th'e Union, cross-examination should be restricted to a comparison between her job and that of the grievor. Counsel suggested that it would be improper to allow the Union to expand it's case in this fashion. After considering the objection, the Board elected against the limitation of cross-examination. The Employer did not subsequently call any other witness from the S,O.P, Department to contest the ostensible similarities put forward by the Union. The Board is in agreement with the following excerpt from NcCour~. 198/78 ($altman) as to the test to be employed in assessing · usage argument: "When [he Union rests its case on a comparison with the' duties of another job, it seeks to show that the Employer has modified its written standards. Although every duty between the two jobs need not be identical (nor could they ever be completely identical), the duties of the two jobs must be virtually the same .... " (page 9) 2~ A similar statement is found in Leworthy, 26/80 (Roberts) at page 8. After a review of the evidence and submissions, it is the judgment of this Board that the core functions of t~e two (2) jobs in question are neither substantially similar nor virtually identical. In our estimation, Che thrust of the evidence points to a material dissimilarity. It is undisputed that for approximately two (2) hours per day, Ms. O'Halloran replaces or assists the gr~evor in t~e Photo Card Department. For that period of time they clearly function in an identical fashionI. Such period, ~owever, is insufficient by itself to justify a reclassification. It is necessary So lo6k at how Ms. O'Halloran spends the balance of her day as her work- in t~e Photo Card area does not constitute the major, or core, Dart of her job. Approximately seventy-five (?5) to eighty. (80) percent of MS. O'Halloran's time ~s devoted to the checking and issuance of 8.O.P. permits. This ~s inclusive of her efforts in respect of Consular and DiPlomatic applications. As indicated above, the Board considers that t~e S,O.P. work performed by Ms. O'Halloran is substantially different from that done ~y the grievor vis a vis the photo card aopl~cations. Firstly, and from :he evidence presented, we think that the former work involves a more extensive process in terms of the number and' types of checks which must be completed. We are satisfied that the checking done by Ms. O'Halloran 'reeuires a greater knowledge base than is needed for the checking of photo cards. In respect 22 of the latter, the gr'ievor is simply required to ascertain the age of the app]icant and to ensure the existence of an apparently competent guarantor, In contrast, the S.O.P. clerk mus~ check the lengthy list of factors reproduced above to determine eligibility for a permit; the type of' permit to be granSe~; the conditions to be attached to same; the number of persons who may participate in the event; and the fee to be charged for the permit· In many r~soects, the subject matter being assessed Dy Ms. O'Halloran is more complex. For example, ~he is required to ensure that the premises at which the event is to be held can safely house the number'of person~ attending. This mEy require a secondary review of manuals within the office which indicate approved capacities. As well, ~he is required to ensure that all pertinent health and safety aoprovals are in place. This aspect of the checking is indicative of the greater level of comp]exity inherent in the S.O.P. work. This same comment applies to the processing of Consular and Diplomatic permits. In that area, however, ~pp]icatiOns must be processed on what is frequently very short notice. It is apparent from the evidence that the grievor has not been involved with the S.O.P. process in the past to any material extent, The Board has not been persuaded that she could asmume Ns. O'Hatloran's responsibilities without firs~ having been exposed to a significant period of training. This is consistent with %he existence of a qualitative difference between the j.ObS under consideration. The fact that the taking of telephone inquiries and the provision of trainin9 is common to 23 both positions does not reduce the extent of this difference. Lastly, it would appear that the grievor occasionally, performs the revenue function which is normally undertaken Dy Ms. O'Halloran. This is limited to those situations where the incumbent is ill or away on vacation. The Board is unable to conclude that this infrequent assumption of the duties of t~e higher level justifies the grievor's claim to a reclassification. As stated above, the Union supported its ~rimary usage argument by reference to the counter clerks. Evidence of their genera] duties was provided in the examination of Ms. O'Halloran and in the cross-examination of Hr. Jackson. While this evidence is suggestive of a similarity between their work and that of the grievor, we do not consider it sufficient to compel the reclassification claimed. It would have been helpful to the Board had one of these clerks been called as a witness. The apparent similarities could then have been explored in a more comprehensive fashion, and the Board would then h~ve been better able to reach a firm conclusion on the issue. It is apparent to both parties, and to the Board, that the grievor is. an excellent employee in all respects. Without doubt, she is extremely capable in the context of the Photo Card Department. The Board, however, is not empowered to resolve classification disputes on the basis of the grievor's potential or quality of performance. Our task is to assess the job or 2~ position in question, not the merit or worth of the incumbent- see Flood previously cited. In arriving at our conclusion that the grievance must fail, the Board has also had regard to the following authorities cited by the parties: CoRDer, O551/88 (Gorsky); Gho-Chu, 66/82 (Teplitsky); Moore and Bateman, 770,771/84 (Brent); and Car'valho, 1~84/84 (Roberts). It is unnecessary in the circumstances to comment further on these awards. For all of the aDove reasons, the grievance is denied. Dated at Windsor, Ontario this 6th day of FebruarT, tqqO. M.V. Watters, Vice-Chairperson "I dissent_" (Dtssenl: attached) J. Solbet$, Hembe£ H. O'Toole, Hember 25 Dissent from Janet Solberg Union Nominee -. Reference Ontario Liquor Board Employees Union and Liquor Control Board of Ontario Grievance of Keeling (~1077/88) The filing of this grievance should come as no surprise. The grievor i~ the sole permanent occupant of the Photo Card Department, an important, unrelentingly busy and productive place of work which once employed six clerks and a manager. While I would agree that the work is often of a routine nature, many of the grievor's duties fit comfortably within the higher classification standard. And just as important, when the department manager retired, it is undisputed that the grievor took over some of his responsibilities~ Now,.I am not suggesting that this case was clearcut. But I would have judged the grievor's situation very differently, especially with respect to her supervisory, fiduciary and public functions. In the end, I think that the Board has been excessively cautious in its evaluation of the grievor's responsibilities and the requirements of the position.