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HomeMy WebLinkAbout1989-0385.Burrell.93-02-23 ONTARIO EMPLO YES DE LA CROWN EMPLOYEE$ DE L 'ONTA GRIEVANCE COMMISSION DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WESTj SUITE 2100, TORONTO, ONTARIO, M5~ ~8 TELEP~ONE/T~L£~=HDhIE: (41~) 326- ?358 180, RUE DUNDAS OUEST, J~UREAU 2100, TORONTO (ONTARtOL M5G 1Z8 FACSIMILE/T~'L£COi~iE 385/89 TN THE MATTER OF ~%N ~BITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Burrell) Grievor - alld- The Crown in Right of Ontario (Ministry of Correctional Services) Employer BEFORE: N. Dissanayake Vice-Chairperson E. Seymour Member M. O'Toole Member POR THE M. Wright UNION Counsel Scott & Aylen Barristers & Solicitors FOR THE J. Ravenscroft EMPLOYER Grievance Administration officer Ministry of Correctional Services HEARING May 30, 1991 August 21, 1991 2 DECISION This grievance filed by Mr. James Burrell results from the employer's decision to abolish his Correctional Officer 3 (CO 3) position and to reclassify his position as Correctional Officer (CO 2). The grievor took the primary position that the employer was prevented from abolishing his CO 3 position because of an undertaking in a memorandum of settlement resolving a prior grievance he had flied. AJternatively, it was submitted on behalf of the grievor that his demotion from CO 3 to CO 2 was fmproper because his duties had not changed and further that those duties did not fit the CO 2 class standard in any event. When the Board convened initially, the parties agreed to present the grievor's primary argument based on the memorandum of settlement and to hold the alternate arguments in abeyance. The Board heard the union's primary argument and by a maiority decision dated May 31, 1990 dismissed the same. Subsequently the Board reconvened to hear grievance based on the alternative grounds mentioned above. This decision deals with those. The employer's decision to abolish the grievor's CO 3 position was part of a decision by the Ministry to abolish CO 3 positions on a province-wide basis. The union does not claim that the decision to abolish the grievor's CO 3 position was motivated by anything other than tegitimate business considerations. There is no allegation of'bad faith. The contention however is that the grievor's duties and responsibilities remafned unchanged before and after the demotion. Thus it is argued that despite the legitimate motivation, it was improper to demote the grievor while he continued to have the same duties and responsibilities. Following the same theme, it is submitted that since the grievor continues to have the same duties and responsibilities as he did when his position was classified as CO 3, his duties do not fit the CO 2 classification. 3 The parties presented the case on the basis of evidence including post-grievance evidence right [~p to the date of hearing. There was realty no dispute as to the taw. The employer did not disagree that it was improper to demote an employee by downgrading his position, if his duties and responsibilities had not diminished. Nor did the employer seriously challenge the union's position that if the grievor continued to perform the same duties after his reclassification as CO 2, as he did while his position was classified as CO 3, his position would then be improperly classified as C~ 2. Therefore the focus of the dispute was as to whether the grievor's duties and responsibilities had cha~cjed upon the reclassification. The un{oh's view was that the grievor had the identical duties and responsibilities before and after the reclassification, while the employer's position was that following the reclassification, the supervisory duties and responsibilities which constituted the distinguishing feature of the CO 3 classification, had been removed from the grievor's position. The abolition of the grievor's CO 3 position was announced by letter dated February 24, 1989. The reclassification to CO 2 became effective on March 1, 1989. The grievor joined the Thunder Bay jait on May 17, 1979 and pursuant to a competition was appointed to a CO 3 position on November 25, 1983. He start'ed working as a CO 3 in Admissions and Discharge (A&D) early in 1988 and was in that position on March 1, 1989 when the reclassification became effective. His grievance was filed shortly thereafter on April 12, 1989. He remained in A&D until August 1989 when he voluntarily moved to the Main Work Party (MWP). The evidence is that upon the reclassification the grievor's wages were red-circled at the CO 3 rate, but he received no further increments until the CO 2 wage rates caught up some two years later. On the basis of all of the evidence we are satisfied that while the grievor genuinely perceived that his job did not change in any significant way, in fact as part of a reorganization the employer had taken specific steps to eliminate supervisory functions from the grievor's position upon. the reclassification. The documentary evidence and particularly, exhibits 15 A&B (organizational charts) support the testimony of employer witnesses that following the abolition of the CO 3 position, the grievor in the position of general duty officer (CO 2) took over the working portion of the A&D position, while the supervisory portion was reassigned to a shift supervisor. Because of this additional responsibility the shift supervisor position was upgraded from 0M-.14 to 0M-15. After he went to the MWP in August 1989, the grievor, had several acting assignments to higher classifications. The evidence indicates that for these periods he received acting pay in accordance with the collective agreement. The grievor's main contention is that he was one of two CO 2s who were on the MWP and that since there was no CO 3 or 0M-14 on the MWP, he was in charge of the MWP. It is common ground that the CO 2 class standard and the General Duty Officer position specification contemplates the supervision of inmates on the MWP. At the Thunder Bay jail the MWP performed various maintenance and upkeep function throughout the jail's grounds of some 1400 acres. The issue is whether the grievor supervised any staff on the MWP, which would take him outside the CO 2 classification. The grievor testified that he felt that he was in charge of the MWP. At one point there were only two CO 2s of equal rank on the MWP. The grievor complained to the management because he felt that there had to be someone "in-charge". When nothing was done he threatened to grieve. Shortly thereafter, an 0M-14 management staff was assigned to the MWP and remained on the MWP for approximately one year. From the presence of a 0M-14 for one year, the union suggests that the employer recognized the need for a supervisor to be part of the MWP. It is the union's position that except for the one year period when the 0M-14 was present the grievor fulfilled the role as supervisor of the MWP. While the gdevor assumed that the OM-14 was assigned to the MWP in response to his complaint that there had to be someone "in charge", Mr. Lionel Chevrier, Superintendent of the Thunder Bay jail testified that management decided that a supervisor was not required to be part of the MWP because the staff on the MWP was only required to supervise inmates and they were not required to maintain budgets or to make direct purchases. He testified that the assignment of the OM-14 to the MWP had n. othing to do with the grievor's complaint. The Regional D~rector had reviewed the staffing at the jail and concluded that the Young Offender Unit had two coordinators (OM-14s) too many and had to be eliminated. One such position was eliminated through attrition. The other extra OM-14 was assigned to the MWP until a vacancy for a OM-15 position became available. The General Duty Officer (CO 2) position specification clearly contempfates the supervision of inmates on a work party. However, the grievor believed that he supervised the other CO 2, a Mr. Neubaur, as well. He testified that Mr. Neubaur, had significantly less seniority and experience than he did. According to him, when orders came down from the Superintendent or his assistant, he conveyed them to Mr. Neubaur. In addition he also showed Mr. NeubaUr how equipment worked so that Mr. Neubaur could in turn demonstrate the equipment to inmates. Under cross-examination however, the grievor agreed that he and Mr. Neubaur were equals, but that the latter turned to him for guidance because of his greater experience. He further testified that he and Mr. Neubaur had an excellent working relationship and that any guidance he gave to Mr. Neubaur was done casually. Counsel for the union took the position that the CO 2 position specification contemplated the incumbent "working under supervision 80 percent of the time". To be more accurate, the position specification sets out a long list of duties which is said to constitute 80 percent of the General Duty Officer position. The specification states that these duties are to be performed "under genera! supervision". During his direct testimony union counsel asked the grievor whether 80 percent of his work was "done under supervision". The grievor replied "Not directly. There is a shift supervisor.. But he doesn't supervise me directly. I just do my daily routine". Asked when the Shift Supervisor gave him directions, the grievor testified that the Shift Supervisor assigned inmates to his work party at the beginning of his shift and after lunch each day, and that "the odd time" he dropped by on his rounds. He wer~ on to state that he took more directions from the Assistant Superintendent than the Shift Supervisor and that he had daily contact through radio for instructions. The evidence indicates that while the grievor did not have direct supervision as he went about his daily routine, he did have general supervision, as contemplated for a CO 2 position. The grievor perceives his role in assisting his co-workers as supervision. Since he had significant seniority and experience and had previously enjoyed supervisory authority as a CO 3 and in acting management positions, it is natural that other employees would seek guidance and assistance from the grievor in performing their day-to-day duties. While it is commendable that the grievor provided this guidance and assistance, that role does not signify that any supervisory authority was being exercised. This is amply demonstrated by the evidence that the grievor provided guidance and assistance even to the OM-14 (a management position) who came to the MWP for a year. Surely we cannot conclude from this evidence that the grievor had supervisory responsibility over a management position. Based on all of the evidence we are satisfied that following the reorganization and the resulting abolition of the cjrievor's CO 3 position, his posit/on was stripped of the supervisory functions which had been previously his responsibility. To the extent that he continued to instruct and assist his co-workers, we are satisfied that that was not a result of supervisory authority or responsibility vested in his position. He performed his day-to-day duties under general supervision. For all of those reasons we are of the opinion that whether this dispute is seen as one of the appropriateness of the demotion or the appropriateness of the CO 2 classification following that demotion, the grievance must fail Accordingly this grievance is hereby dismissed. Dated this 23rdday o~ Februa~993 at Hamilton, Ontario N. Dissanayake Vice-Chairperson E. Seymour Member M. 0"1'oolo Member