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HomeMy WebLinkAbout1989-0946.Roy.90-03-19 ONTAR.~O EA, I, oL. OYcCS .DE LA COUF~OeVNE CRO WtV EMPL 0 YE.ES DE L'OAtTA GRIEVANCE COMMISSION DE ~ SETTLEMENT RJ=_GLEMENT . BOARD DES GRIEFS ~lSO DUf~OA$ STREET WEST. ~ORONTOo ONrAR~O, MSG IZ6- S,(J~.~'E 2100 TELEPHO6[E/F£[..L~P.,~ONE .~ ~i80, RUE DUNDAS OUEST, TORONTO, (ONTAP,,IO} MSG ;Z8 , ~UREAU 2100 ¢4.~6) 598-0~88 946/89 IN TBE MATTER OF A/g i~RBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BA/~C_~%INING ACT Be fo re THE GRIEVAN~ ETTLE~ENT BCU~L~ OP Grievor - and- The Crown in Right of Ontario (Ministry of Natural Resources) Employer ~EFORE: P. Knopf Vice-Chairperson M. vorster Member A. Stapleton Member FOR THE T. Hadwen GRiEVOR: Counsel Cavalluzzo, Hayes & Leunon Barristers & Solicitors FOR THE M. Failes EMPLOYER: Counsel Winkler, Filion and Wakely Barristers & Solicitors ~EARING: February 15, 1990 DECIS ION The gr ievor This is a classification grievance. holds the position of a warehouseman and is currently classified as a Clerk 3, Sup'ply. He says that this classification and the Clerk Supply series ar~ not applicable to him because h9 performs duties "above and be¥onfl" chose · dascriDe~ by the Class Stan~ards. He seeks a "Berry" requirln~ the Ministry; to reclassify the posiciion to take. ~mto acrobat thes~ extra duties~ Due to ~he diligence a~d the reasonableness of counsel aflJ boah parties¢ the case was aDle t~ proceed with little .~jspute ov~C th?e facts. The par~ies agree-%hat the Poslgioa Specification, attached ~ereto as Appea.Jl~-A, is a eeliab~e ~escrip[ion of ~the duties and responsibilities the Gr[evor. The Grievor's evidence concerned those spece~ic duties which he amd the U¢%io~ ~elt took hks positlon b~yond %ha[ of t~e typical Clerk 3, Supply. He explained ghag he works in the Support-Services Section o~ the.Bancroft District of the Algonquin Region of the Ministry of Natural Resources- This portion of the Ministry deals with various th~ags such.~as ~tsh and wild life monitoring a~d licensing, t~mDe~ c~u~szng and cutting lines, tire ~i§hting, parks, and some aspects associate~ w~th road and dam maintenance- 'i The Gr]evor also provides the ty. pical Stockroom type of duties p~fformmd by a S~'pply Clerk in a warehouse. fact, his maim centre of work is the warehouse itself, ~ However~ the~e are several other buildings in the area. The ': Ministry pcemises occupy a fairly large complex and within ~ thac complex is a fenced off compound containing several .! buildings. These additional buil~i~qs Jmclude a chemical i $[o~a~c facility; a gas, oil and paJn~ shed, a mime bay garage used as a coal storage building; a shed for skJdoos, {. pfophane a~d lumbe[; and a rack for boaLs a~ff canoes- ..... 7he duties which the Grtevor says take him beyond the · ~: '~i typlca! stockroom fl~t~es involve a number o[ th~ngs. (a~ Shipping and receiving - He performs shipping an~ rece~vzng ~uncgions b~ accepting receipt ~' o~ bulk goods for [he encz~- disc~cc, including parks. He rhea =~lzvers abou~ 95% '? of ic to lis alternace destination or ensures ~2 its delivery. This involves him doing the -~ typical shipping and receiving documentation required ~or goods ~ha[ he would normally recezve in .the warehouse proper- ~.Z --' ~ (b) Nu~er of staff r~quired to do the work - The : evidence establishes thac between June and September ~m ~e las~ two y~ars, one ~ additional summer student has been h~red to assist the Grlevof with his work in ~e ~ warehouse. While a second studenc was hired '~- between January and Sep[e~er of 19~9 [o assist ghe Grievor, ~he ev~deac~ sing establishes that this was necessl%ate~ by an lmjury the G~ievor sufferel which omty alloweJ ~ him to perform liQh[ duties, ~e presence o~ 5hls second person was no~ felled upon as .. establishing part o~ the Union's case. Gas, oil and paint shed - This is used co store gas cans, oil for vehicles, outdoor motor tanks and other similar goods associate~ with the name of the building. We heard no evidence of the Grievo~'s responsibilities tn this area other than he has' the keys to the shed and will tec people in as necessary. (d) Cold storage bu~Idzng 'l'hls is an eight g~rage built to compensate for an o'~erload purposes but they ace mostly assoc~ate~ with general s~or~ge of materials that dO not to 3a kept in a heate-J bullJlnO Some bays Fishef~e5~ others Dy Fish and Wild Life o~hec5 by t~e Fire Services the Support Services anJ ~e Assessment Unit. The Grievo~ again lets people' i~ and %o these He also will assist e~ch of [h'~ deDartmencs mainnainin~ the state of the facilities. (e) Ma in tenmncm of buildings - He has '~;: responsibilities for buildings other than warehouse and other than mentioneJ above. These Ju'ties include light maintenance and janitorial type of work such as put~ing up : plaques, ~nstallin9 and removing air ':':' conditioners, c-leaning m~ts, pecformin9 menial ':, chores, salting the sidewalks sweeping the floors aD~ clean]n9 bathro~s. (f) Snow removal - The heavy snow removal is done by someone opera[lng a front end loader. However, the Grievor ensures equipment and vehicles are moved from the parkin9 lots ,m: allOW for snow removal. He also operates a snow blower himself to clean the ar~as around the warehouse, the cold storage garage, the - gas and oil shed and the assessment bu ~ld ings- ..~ (9) Working with Contractors - ~en contractors ~ are hired [rom outside 5he Department, the Grievor has oeen asked to "monitor" contractors b~ ~akin~ them on ~nspect~ons t~e work [ha[ needs ~o ~e done. -. (h) Securlty of buildings - Each day cha G~evor wa[ks around the bulld~ngs ac Q~e end off a~e day [o lock up the ~ar~house~ [he gas and oil ~ shed, ~he garage and the assessmenc unit. He does a general inspection of the yard to pu[ .~ away anything that ought not to be le:[ out - ove~n~ghc. He [hen shuts ~a gates and locks ~ the doors of the Dtscricc A~min~strac~ve Of f ice. ?' (1) Vehicles- The Grievo~ has the responsibility or receiving vehicles which have been purchased or leased bv the Mioistry. inspects the vehzCleS, ensures ~at ~ey meet 7: the specifications off the order, proJ~des ~hem with all the laDelling nad equipment :': necessary. In the.evenc of leased uehLc[es, ~ he inspects when [h~y come in with che lessee and whcn they are cecurae~. Boats- Like the purchased vehlcles, the Grievo~ inspects th= Boats when they arrive and obtains the information necessary for registration. He also ensures that [hey are affixed with the appropriate decals and equipment. He also has no run from the warehouse over to the boat racks to ensure what boa~s are there and what have been re turned'. Fu~ Sealing - The Grievor has the responsibility of .outting a seal on fur ~hicl~ !:..i l~as.~een b£oughlz Into [he Nl~lscry for monitoring of quota ~urposes. AL[ trappers a~e allowed to trap only whac is prescribed in their licences. Tt~e way thls is monitorled is through this ~ur sealing process. To do this, the Gfievor has to check [be ~rappers' lice~ces and keep 'track off whether they are ,~.:i! within their quotas. In the event fha[ fur seems to have come from a diseased animal, the ,; Grievor reports th is to someone in Fish and Wild Life who comes lo 'i~spec[ [he fuc. The Grievoc also ~akes it ,~..~on himse[~ to keep abreast of the ~a~es of sake of- fu~s and gives this informa_tioa to the ~rap,~e£s so that ~hey · ,- c~ ~arrange ~or the pickup and sale off their furs in the various designated areas. (1) Fire Safety Officer -Approx[mately twice per ~: . year, ~he Grievor is called upon to act as a ? F~re Sa[eny Ofi~icer on a prescribed burn. He has r~ceived nrainin§ through the Ministry to perform [h~s function an'~ di~ on two occasions in 19¢9- ~ (m) Fire Supply Officer - The Grievor has been :[. ~ trained to and has worked in [he service aspect of dealing with fires. He can De -~ called to serve anywhere in the Province in the even[ that there is need for e×[ra personnel to fight a fire. The Ias~ lime he did t~is was i~ 1988 ia Sudbu~y. [n his 20 ~: years with the Ministry, he has been cal~ed upon to per~ofm Lhis duty approximately,.s[× ? t irae s. By way of general evidence, the Grievor escabiisheJ that he ..has been performzng al! of these functions for y_~ass. The grievance was launcheJ in I-~89 because of a urem~ndous lncr-:ase in. th.e volume of work ~equ[-red to be performed Dy the Grievor. _qe also foun~ himself in the summec mont~hs havinQ to deal with more students than trained people and thus De lng unable [o use his time as efficiently as he would have liked, There is no dispute that the volume of his work has increased stgnificantly and, as he says, he is cunn~n§ around like a runner on the Stock Excha0ge, running from building to building to try to satisfy, all the needs of his very demand lng job. Lastly, the Class Standards for the Clerk Supply Series have to be examined. Of ~elevance is their preamble and the Clerk 3 Suoply Class Definition The relevann port,on of the preamble reads: PREAMBLE CLERK SUPPLY SERIES These cias~es cover the positions of employees who perform a variety of clerical, manual, administrative repair or purchasing f.unc~ions that · are common to stockkeepin~ operations in :~ P£o~lncial Government Service. If any er~loyee .'~ $~ecial~zes in only one of the many tasks involved in the operation of a stockroom, the position ,.~ should De classlf~e~ in snot_her series more ~ appropriate to the type of work. Fo~ example, positioas concerned entirely with the clerical reco~din~ o~ transaction~ should be allocated to the Clerk, General series_ Positions in which -- purchasing is the main function should not be classified in this series. DEFINITION ,..i Size of O~eranion - Because of the tremendous variation in the "~:~' nature an.~ organization of s~ockkee~ing functions ': between ~ep~rtments, the numD_=r of staff required for the operation of a particular unit is the only -- oractical basfs of comparison for classification purposes, %n all ~epartments except Health and Reform Institutions. in th~_ latter J~partments, i,~:. pa[lents or inmates are often empl6yed in "-' stockkeeping operations. Consequently in Ontario Hospitals, the size in rectus of beJ capacity, is the criteria used. The size alone Df a Reform ~ In'stltution ionores the possible existence of .. in~.astries, which complicate the stockkeeping function, therefore the value of annual stock =' turnover is used as a basis of comparison for the determination of level. !. Apart from the exceptions mengioned above, the sizes of s'tockkeeping operations are defined' follows SMALL STOCKROOM TN ts is 'a sma 11 stockroom "'~ ope£ate~ by one employee or by one employee and aa -:' a$Sls%af~t. . , .-. CLERL 3, SUPPLY CLASS DEFINITION: This class covers the positions of employees :{ who alone, maintain a very sm~ll stockroom where · i the record keeping function 15 elementary. They are responsible for checkin9 that r_he correct -a amount type of goods are received, maintainin9 'i security, issuin9 stock to authorized persons and check,ag s+~ock levels' At the ciose of the Union's cas=., the EmpLoyer elected not to call any evidence. Thus, we p£oceeded to argument with the Employer presenting its argument first. ..~ Counsel for the EmploFer argued that_ the Union can only succa~d 1._= it shows that ~he Grie:or does somethinO outside [he Class Standards. It was emphasize'J that the wording of the Standard Is very broad and that the Union ..: would flare to snow something that would take th~ Gri~_vor outside the realm of "clerical, manuai, administrative repair : or purchasin§ functions that a~e common [o stockkeeping --~ operations in the Provincial Government Service." I~ was .~ stressed cha~ all the functions the Gricvor.has mentioned " fall within that scope and thus the Union's. case would have to tail- It was also argued th. at since the Grievor agreed · '~i]. ~hat all the buildings in the compound for which he has any responsibility are used for storage and stockkeeplng purposes, he m:]st be se~n to. be %4orkin9 wit_bin stockkeepinQ operations and performing stockkeeplng t¥@e of ~unctions.' "f~ Thus, he was said to be "an excellent fit" into the Clerk 3 ..i le.~el'. It was st§rested that the increase in the volume of ~ the Grievor'a work may have prompted the grievance. However, .~% it was snresse~ that this is no[ suf~icien£ to allow the grievance to succeed. We were referred to the case of O*Neit and Mzniscrl< of Natucal Resources, Board File No. 1526/S7, unreported decision oE Dissanayake. In was also said %hat a .~ new classification ought not to be created unless 'the esssence or the core of the duties which he ~elies upon do -~ not fit within the Class Standard to which he has been assigne~. Reliance was made on the decision of Aird et al a_n_d___M.i_.nls__tr_~_o_[ Consumer and Commercial Relations, Board File - ·~No. 1349/87 (Sloan). Finally, it was argued that the Union ~: had not fulfilled its onus of establishing that the duties ~. .perfocmed Dy the Gcie~or are unusual fo~ stockkeep~9 within th~ Provincial Government Secvice$. Indeed, it was said that the evidence established the contrary because the only .... evidence before us was [hat the Grievor has done ail these · j duties for a number of yeats p~io~ to the filin9 of the Tha Union concedes that the Clerk Supply series ~':~?* encompasses a wide range of ~utzes and functions. However, : * it was stressed the focus of the Supply series is that the -~ people work out of a stockroom. Ic was said chat if it can be shown that people do work of siGni[£cance outside of a stockroom, they have Deen made a "Jack of too many trades" ..:: fit within the Clerk Supply series. It was said that this has been the case [or the Grlevor. It was said that the ~' Grievor was in a situation wher_e the buildings outsid-~ of the warehouse required him co perform significant duties. It was i. conceded that if the ad,scent buildings were only a minor or lnslgnlft'cant portion of his responsibilities, this would no5 be determinative .... l]ow~ver, it'was said that the work the Orievor does outride the ~arehoure is so si§ni~icant to indicate chat he has peen improperly classified, tn the .= alternative, it was argued that even if the Geographic setup is not a determining factor, the number of s.lgni~icant duties performed by the Grie~or which do not fit wit~lin stockkeepimg operations were said to be so ~mportant to take h~m outside ~he Clerk Supply series. It was argued that the essence of his job was to do a number of things loc the Support Services Section in Bancroft rather tha6 do stockkeeping services- To SuppOrt this, the Grievor's responsibllities were stressed wi~h particular emphasis on responsibility for buildings · ~ outside o~ the warehouse, the snow removal, the dealing contractors, [he security of all the buildings, the "fur sealing, the Fire Safety Officer and the Fire Supply Officer- Thus it was said that his "real job~ ~as to provide a wide range of services for the M~nistr¥ and he was therefore improperly classified. ? ~ The Dec is ion The grievance asks that ~hc Gcievor's position be rectasst~ied on the basis that he doe5 not ~t within the k' ..... Clerk Supply series or the Clerk 3, Supply Class Definition. In order to succeed, the Grievor must establish that )~ duti-=s do not fall with~ the paremeters of ~he Standards or the Definition. In other words, he must es~aollsh that the essence of his job ts to do more than "perform a variety of clerical, manual, administrative repair or purchasin~ }.~ii! functions that are common to stockkeeping operations in thc i:.: Provincial Gov~me~tSe uv ice." We agree with the analysis ~'~! set out In til~~ase, s_u_p_[a_, where it was said at page 8: ... the addition ol~ new dur~ies may take a joD ou~ · !~ o~ kcs o£~glnal classzf~ca~ion, buc only w.~ere .~ those duties are 'o[ such a kind or occur in a · ' degree as to amount to a dlf~eren~ job atto§ethe£. See for-example Baldwin a~d L~99, GSa 539/84 -::, (Palmer) and Fenske, GSB 494/85 (Verity). As these and other cases show, ~he propriety; of the classification is a factual issue to be decided on the merits of each case .... The onus is on the -- §rievor to. show that he is actually performing a joD, r_he essence or core duuies of 'which do not flt .... wtth~a the class standard to which ir_ has ~ee~ ~ assigned bi; the employer :ii:.~ In deciding r~he factual issues before us, we mus~ conclude [hac the grlevan~ canno£ succeed for several reasons. Firt bt all, the unconteste~ fact is that a portion of the Grievo~:s duties are involved in maintaining i stock control and maintaining equipment and equipment storage facilities ~of the warehouae. He pe~{ocms all the typical' :'i stockkeepin9 ~unccions associated with this and as are sec out in the Position Specification attached. The fact that he pe[fo~ms work in buildings and on materials outside of the -- warehouse Duildin§ itself are not of significance in the facts at hand, The definition of the size of an operation in ._~ a preamble to the Class Standards and the Dreaable itself does not talk oaly of working in a warehouse. The language :: ~e(ers to performin9 duties of a "scockkeep[n9 (emphasis added). The size of the "opera%ion' i-s defined not ~ by the size of the bulldin9, ~h~ size of coons or the numDer of bu]13ings ~nstead, it is defined qu~e clearly by "¢he number of staff requlre-J for the 'operation of a particular unit" (emphasis added). Further, "the sizes of stockkeeping o_~e~_a_t:_io.'n_s_" oive the ~efinition of a small stockroom as being one operated by one employee or Sy one employee and an assistsnt. The facts in this case establish that the Griever operates on his own except during the summer months when he may have one studeot assistant. The Class Definition for a Clerk 3, Supply covers work in "a very smaii stockroom." fact that the Griever may have an assista.~t during a few months in the summer does not'take the size of his o0erat~on outside the Clerk 3, Supply level. Thus, given the definltton of stockkeeDin9 operation within the Class Standards, it cannot De said that there is any sionificance to be attached in this case to the fact that the Griever works outside the main warehouse. Further, many of the duties which the Griever listed as being beyond the Clerk Supply series can be said to fall wlthLn the broad scope of the series. Indeed, the Class DeEinitlon foe A Cl~rk '3, Supply includes responsibilities 37 fo~ "checking that the. correct amount and type of §ends are "~ recelved, maintaining security, issuing stock to authorized pe{sons and checking stock levels." The work ~he Griever does securing ~he complex and the compound fits within this definition. The wo£k the Griever does with respect t© the i~ newly purchased and leased vehicies as well as the boats, canoes and skidoos also fits withln this. Further, the fact .:!i that he will allow authorized people into buildings and storage sheds also fit within the Class Definition. Further, the snow removal, work with contractors and general ~ janitorial type of duties can also be said to fail within the --- manual portion of the Clerk Supply series preamble. Ail the fur sealing, Fire Safety Officer and Fire Supply O~ficer responsibilities of the Grievou do seem to fall outside of the Clerk Supply s-=ries. However, these fall wich£n the third paragraph of the "Duties and Related Tasks" which have been agreed upon in the Position Specification. Paragraph 3 of the Specification only encompasses 5% of the Grlevor's work and these three functions are only part of - that 5%- While the evidence establis, hes that the fu¢ sealing is an important part of the Grievor's job and may take up a - fair amount of time, tt cannot be said that these duaies are ..~ Of such a kind or such a degree tha-~ it takes him outside of the job of a Clerk 3, Supply altogechero The Fire Safety Officer and Fire Supply Offfcer~functio~s are even less- Taken altogether, they cannot De considered as the type of import ¢3~a[ would justify a change ~n the Gu~evo~'s classification. In conclusion, it must be said that r_he Grieuor impressed us as a gentleman who ~s called upon to perform a wide variety of tasks. His tesulmony was credible.-and forthrl~ht and has been accepced as entirely reliable. is clear that he has an incredibly high workload to deal with and is indeed expected to be a Jack of many trades. However, " a consideration of his evidence, together with the Clerk Supply series and Class Definition of a Clerk 3, Supply, lead us to no other conclusion than that he has been p£operly classified. For ail these reasons, the grievance mus[ fail. DATED at Toronno, Ontario this ]9th .Jay of March, 1990. · ,~ Pt. Vo~ster ~ ~,.wi~,~,~, 4~.,~ i .... ~ ~ ~ ~ · n e · · / leuc~r~ , l_j. I (e.~. ~ ~'~)" " ~'dviii~' su~i~r ~.~. obsol~t( o~ ~f, e~t~C 4n4 o~ (~vt~C ~ ~ply I ~lpI~ ~d t~ J~ 4C all C~..' .... r4pl~cmut) to .u~ q~tge~c ~ lire. ~M. ~tb~ .~core ~4 .bilit[Co I44t deidli~4i. ~fl,~iI ~.d~ d .~ ~id ~ ~i~ pr~m. '~. ' ~ '~' I~:. ~ ~ !