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HomeMy WebLinkAbout1989-0960.McSevney.91-01-04 ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L *ONTARIO GRIEVANCE C,OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST, SUSTE 2100, TORONTO, ONTARro, MSG ;Z8 TELEPHONE/TELEPHONE: (4 ~6) 326- r385 180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO fONTARtO). M5G 1Z8 FACSIMILE/T~-L~'COPlE : ~476) 326-'~396 960/89 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (McSevney) Grievor - and - The Crown in Right of Ontario (Ministry of the Solicitor's-General) Employer ,BEPORE: E. Ratushny Vice-Chairperson E. Seymour Member D. Clark Member FOR THE L. Trachuk GRIEVOR Counsel Cornish Roland Barristers & Solicitors FOR THE N. Eber EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: February 22, 1990 DECISION The Grievor is classified as a Technician 4 Photographic. Her job specification as well as the evidence presented before us establish that she is the "supervisor" of a colour film processing laboratory. On July 22nd of 1988, her immediate supervisor recommended that her position specification and class allocation be reviewed as soon as possible. He added that it was "imperative" that the supervisory as opposed to the "hands on" aspects of this position be more accurately described. This recommendation was supported by the Director of the Technical Support Branch and, Ms. Betty Chai, a classification officer, was assigned the task of reviewing this position. In early August, Ms. Chai attended at the job site and reviewed the position. Draft revisions of the position specification were prepared. Eventually, the Grievor received a revised position specification dated September 22, 1988. Over the fall and spring, she contacted Ms. Chai on a number of occasions to inquire into whether any action had been taken in relation to her classification. Finally, in June of 1989, she was informed that she would not be included in the management category. A few - days later she received, for the first time, another position specification which was dated October 31st, 1988. This version reduced the scope of the supervisory responsibilities which had been described in the document dated September 22nd, 1988, and which she had received in late September. The Grievor alleges that she performs duties which transcend the class standard for a Technician 4 and that the Technical Manager (photographic) series is a much more accurate description of the duties which she performs. In particular, it is alleged that the benchmark TPH14-2 indicates that she would be more appropriately classified as a TM14. In addition to the technical knowledge, skills and training required, the class standard describing the Grievor's position ~tates 'that: ...positions may be required to provide group leadership to journeymen technicians performing .advanced photographic reproduction work or assisting with specialized assignments. However, the elaboration of this general statement relates to such matters as: - providing technical direction to journeymen assistants on complicated procedures; - providing assistance to junior technicians in resolving technical production difficulties; - analyzing work requests and assigning work to the appropriately skilled technicians and reviewing the quality of completed work; - analyzing problems to determine whether they are caused by materials, equipment, application of techniques or a combination of these factors; - modifying work processes to improve work flow where complex, production-related functions are involved. The thrust of this standard is to describe the supervision of individual technicians and the tasks which they perform to ensure the quality of the work product. It envisions a Technician 4 Photographic as performing the most technically difficult tasks personally, and offering professional advice, guidance and supervision with respect to the specific tasks performed by other technicians who are classified at lower levels. However, this class standard does not recognize the Grievor's de facto over-all responsibility for the entire operation. She assumes responsibility for meeting time and volume demands as well as for the quality of the work performed by other technicians. She monitors the production of the entire laboratory and ensures that equipment is used efficiently. For example, she has developed forms to monitor the production from specific equipment and the frequency and duration of equipment break-downs. She is in regular contact with suppliers in relation to the up- grading of supplies and the repair and purchase of equipment. In other words~ she is concerned with the comprehensive and cybernetic operation of the entire laboratory. The benchmark TPH14-2 expressly recognizes such over-all responsibility when it describes the purpose of that position to be: To supervise the ministry's photographic unit which produces black and white reproductions of photographs, engineering drawings, maps and other documents relating to transportation and communications in the province. The written submissions on behalf of the Grievor compare, in some detail, the description of this management position with the job specifications and actual work performed by the Grievor. We need not document those comparisons here. It suffices to conclude that the branchmark TPH14-2 far more closely describes the Grievor's position than does her current class standard of Technician 4 Photographic. Although many of the functions carried out by the Grievor were subject to the approval of her immediate supervisor, the reality was that her "recommended" course of action was inevitably approved in relation to every aspect of the operation of the laboratory. The only area in which the management position differs from that of the Grievor is in relation to the supervision of personnel. The benchmark position is related to a laboratory which is larger than that supervised by the Grievor. It requires the supervision of nine technicians as opposed to four by the Grievor. The management position also has the responsibility of "taking disciplinary action" whereas the Grievor's most recent position specification speaks of "referring unusual matters and disciplinary matters to Supervisor". The earlier version of this position specification, dated September 22, 1988, spoke of "resolving situations of a disciDlinary nature with employee, referring grievances to Supervisor's attention". We are of the view that these differences do not affect the essential merit of the grievance. The Grievor has satisfied the burden of persuading the Board that her significant job duties are beyond those assigned to her present classification. Moreover, they are comparable to the TM14 Standard. However, the Employer will be given the option of reclassifying the Grievor under this standard or of creating an equivalent classification. The Grievor has requested that her reclassification be ordered with salary and benefits retroactive to July 22, 1988, the date when her immediate supervisor first requested that the Grievor be .reclassified. The Employer took the position that any retroactivit¥ should be limited to 20 days prior to the filing of the grievance because the Grievor did not initiate the review of her classification. It was argued that there was no evidence that the Grievor pursued the review of her position as an alternative to filing a grievance and that there was no course of conduct or representation that would lead the Grievor to believe she would be reclassified. In our view, the date of September 22, 1988, is significant. This is the date of the revised position specification which recognized many of the wider responsibilities of the Grievor in relation to the supervision of personnel. From this point on, the Grievor made inquiries as to the progress of the revised classification which she desired. When she was finally informed in June of 1989 that she would not be reclassified, she received a further revised position specification which narrowed the scope of the responsibilities described in the September 22nd document. The Board orders that the Grievor be reclassified into a higher classification to reflect her current duties and responsibilities which are comparable in most respects to the branchmark TPH4-2 with salary and ~enefits retroactive to September 22, 1988. The Employer shall be given 90 days to reclassify the Grievor and the Board will retain jurisdiction pending the implementation of this decision. DATED at Ottawa this 4th day of January 1991. E. S~/MOUR, Member "1 nISS~.NT" (Dish,at attachod) D. CLARK, Mealk~r GSB# 960/89 OPSEU (McSevn'ey) and Ministry of Solicitor General DISSENT After carefully reviewing all of the evidence and written submissions concerning this case, I feel I must, with all due respect, dissent from the decision of the majority of · this Board. The Grievor alleges that she is improperly classified as a Technician 4, Photographic and that her duties more closely relate to those described in benchmark THP14-2, i.e., a TM ]4 level. I feel the Grievor is properl)- classified at her present level. The Grievor agreed with the description of her position as set out in the Position Specification, Exhibit #6, signed by her Supervisor on September 22, 1988. The only material differences to the Grievor between Exhibit #6 and Exhibit #7 (the Position Specification signed by her Supervisor on October 18, 1988) were in the following areas. Exhibit ~6 refers to: 3. Carries out administrative functions by: "- monitoring attendance, granting time-off, approving vacation and overtime;" "- participating in staff selection process by revie~ing application, devising interview questions, assessing technical qualifications, selecting the most qualified candidate for the the Selection panel's support, checking references and making offer of position;" "- providing critical comments in the performance appraisal process, in merit increase recommendations, in appointment to classified staff, prior to formalization by the Supervising Staff Sergeant;" "- resolvin~ situations of a disciplinary nature with employee, referring grievances to Supervisor's attention. - 2 - Exhibit #? refers to: 3. Carries out administrative functions by: "- monitoring attendance, recommending time-off, vacation and overtime;" "- participating in staff selection process by reviewing applications, devising interview questions, assessing technical qualifications, and recommending selection;" "- providing input in the performance appraisal process, in merit increase recommendations, for consideration by the Supervising Staff Sergeant;" "- resolving performance problems with employee, referring unusual matters and disciplinary matters to Supervisor." With respect to the issue of time-off, the Grievor, in cross-examination indicated that she would-approve requests for time-off for doctor's appointments and annual leave days when they were "... an average length of time ... generally one day was okey." Even then, the Grievor still advised Staff Sergeant Powers of the fact that she had granted the leave. In all other areas she referred the request to Staff Sergeant Powers for approval. Concerning vacation requests, in situations where there was an overlap of such requests, the Grievor would attempt to have the Technicians work out any problems amongst themselves. If they~ could not resolve the problems she did not make the decision but rather referred the matter to Staff Sergeant Powers. Regarding the issue of overtime requests, the Grievor recommended to Staff Sergeant Powers that the requests be approved. With respect to the differences on the issue of staff selection, the Grievor has done a reference check twice and verbally notified a successful candidate once. The reference check and notification to the successful candidate were done at the request of the Inspector on the Selection Committee and/or Human Resources representatives. - 3 - Concerning the differences on the issue, of performance appraisals, the Grievor's evidence was that "Staff Sergeant Powers actually writes the evaluation, my input is asked into it.". With respect to the differences on the issue of discipline, the Grievor's evidence was that she has never.been the recipient of a grievance, only one verbal complaint. When she received this complaint she advised Staff Sergeant Powers of it. It is my submission therefore, that Exhibit #? more accurately reflects the Grievor's actual responsibilities. Does the Grievor, in reality, grant time-off or approve vacation and overtime requests? I think not. If requests for time-off were 'for periods of time greater than one day or if a conflict arose with an overlap of vacation requests, it was Staff Sergeant Powers who granted the time-off. Does the Grievor really select the most qualified candidate during the interview process? Again, I think not for it is a committee decision based on which candidate was awarded the highest score by the Selection Committee, The Grievor has conducted two reference checks and made one verbal offer of employment at the request of an Inspector or a Human Resources official, Concerning performance appraisals, the Grievor provides input to Staff Sergeant Powers. Concernin.g grievances, the Grievor does not receive grievances, she has received only one verbal complaint. In my opinion, the Grievor's job properly falls within the Technician 4, Photographic class standard, Exhibit #1. cross-examination the Grievor agreed that each and every paragraph under the headings of Skills/Knowledge, Judgement and Accountability (in Exhibit #1) applied to her position. Much was made of the fact that the Grievor indicated that only three of the seven examples cited under the paragraphs ~within the Skills/Knowledge and Judgement Sections applied to her. But, as was pointed out in written submissions, an e×~mpte is not an exhaustive representation. I believe an example is just that, an example. To me, thereal issue is whether or not the broader subject matter contained in the paragraphs, and not the examples themse]ves, apply under the three sections of Ski'lls/~{nowledge, Judgement and Accountability. The Grievor said they did. Accordingly, by comparing the agreed to paragraphs with the Position Specification (Exhibit #7), I feel the Grievor's job properly "fits" this class standard. - 4 - The Grievor alleges that benchmark TPH14-2 is more appropriate to her duties. Counsel for the Ministry however, has pointed out that this position is one of the positions within the "Photography Group" and as such is (Exhibit #2~ page 2) "...restricted to positions in the Ontario Public Service which are considered to be exclusions as defined within Section 1, sub-section l(g) of The Crown Employees Collective Bargaining Act, 1972" (now Section (f)). Section t(f)(iii) of the Act excludes "...a person employed in a managerial or confidential capacity". Since the Board does not have jurisdiction to determine whether a position is included or excluded from the bargaining unit, it must determine whether or not an employee performs managerial functions in those cases where an employee claims entitlement to a position excluded on that basis. Based on the evidence and the job descriptions, I am not convinced that the Grievor performs managerial functions. Turning now to the argument of whether or not management supported the Grievor's claim that she was improperly classified one has to examine the related correspondence. On July 22, 1988, Staff Sergeant Powers sent a memo (Exhibit #3) to the Director of the Technical Support Branch requesting that "...the position specification and class allocation ... be reviewed as soon as possible" and he went on to say that "The duties and related task area on the specification sheet is in need of revision". This Board has heard no evidence that Staff Sergeant Powers is a job evaluation expert. He simply requested a review, he did not recommend a reclassification of the position. The Director of the Technical Support Branch (Superintendent McArthur) then wrote a memo (Exhibit #17) to the Director of the Human Resources Services Branch. I~ that memo he stated "I would support Staff Sergeant G. Power's request for an updating on position specification and class allocation on Supervisor Linda McSevney, Colour Photo finishing", Once again this is clearly not a recommendation for a reclassification but rather a review. As a result of these memos, the Grievor's position specification was revised and evaluated by the appropriate Human Resources representative, - § - In Exhibit #8, an "authorized" job evaluator, Shirley Anderson, documented why the position was evaluated at the Technician 4, Photographic level. Exhibit #8, it should be noted, differed from Exhibit #7 only in the fact that the rationale for the classification section had been filled in and signed by Ms. Anderson on October 31, 1988. On page 3 of this award, the Board majority makes reference to the Grievor's "...responsibility for meeting time and volume demands.., the quality of the work performed by other technicians.., monitors the production of the entire laboratory.., ensures the equi.pment is used efficiently..." and "...regular contract with suppliers in relation to the upgrading of supplies ~and the repair and purchase of equipment...".In my opinion, the job evaluation rationale in Exhibit #8 more closely describes the Grievor's duties. This evaluation makes reference to the "...position exercises group leadership skills e.g. guide technicians on operation of new, sophisticated equipment and provide resolutions to technical problems.., working under general administrative supervision.., position uses judgement to modify procedures to meet client requests.., to determine technical parameters of work flow.., accountable for quality of work through establishing appropriate lab standards and procedures, modifying same where necessary, providing training to technicians and reviewing work for quality...". In conclusion, I feel the Grievor is properly classified as a Technician 4, Photographic. For all of the reasons cited above, I would have dismissed the grievance. With'respect to the issue of retroactivity, I am not convinced that retroactivity back to September 22, 1988 is appropriate in this case° Don M. Clark, Member