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HomeMy WebLinkAbout1989-1920.Markakis.91-03-05~ ONTAR~ EMPLOY£$ DE LA COURONNE CROWN EMPr..O YEE$ DE L 'ONTA RfO GRIEVANCE C.OMMISSlON DE SETTLEMENT REGLEMENT BOARD DES GRIEFS tSO DUNDAS STREET WEST, $~fTE 2'~O0, TORONTO, ONTARfl:), MSG L,.,.,.Z$ TELEPt~O~E/T~L~'i=t.4OI'~E: 1920/89 · iN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN 0PSEU (Markakis) Grievor - and - The Crown in Right of Ontario (Ministry of Government Services) Employe~ BEFORE: S. Stewart Vice-Chairperson I. J. Thomson Member M. O'Toole Member FOR THE B. Rutherford GRIEVOR Counsel Gowling, Strathy & Henderson Barristers & Solicitors FOR THE R. Little EMPLOYER Counsel Hicks Morley Hamilton Stewart Storie Barristers & Solicitors HEARING: June 14, 1990 September 18, 1990 December 3, 1990 DECISION The grievance before us is dated November 15, 1989. The grievance states: "I grieve that the employer is in violation of the Collective Agreement by not paying me ~he G-4 note." The settlement requested is that the "employer pay the G-4 note". The grievor, Mr. M. Markakis, is employed in the position of senior building systems operator. He has been ~mployed in that position since August, 1989'. The position specifications outlining tt~e duties of his position are attached hereto as Appendix A. As the position specifications indicate, the position is classified.as Steam Plant 3 Engineer Atypical. The position specifications indicate that the reason for this classification is the similarity the job has to the type of work'performed in a steam plant. The "G4 note" is contained .~in the General Notes to the Class Salary Schedule. Mr. Little stated that it was his understanding that the General Notes may aot form part of ~he Collective Agreement however it was not disputed that a claim for entitlement based on the General Notes is 4rbitrable. In the General Notes to the Class Salary Schedules the following definition is provided: A "Classification Note" or "Staffing Note". is an approved modification to the salary range attached tO a clas~ in accordance with certain c0nditio,]s' as specified in the terms of the Note. The salary range of a position in a class to which a Classification or Staffing Note applies is the salary range as modified by the temas of the Note. The General Notes provide as follows with respect to G4: A Steam plant engineer in charge of all the shift engineers, in a power plant, who acts as the assistant to the steam plant chief who has responsibility for all institutional maintenance, shall be permitted to progress one rate beyond the maximum for the established salary range. Modified salary ranges are as follows: 40112 Steam Plant Engineer 2 - Note G4 01/01/87 13.59 13.'99. 14.30 40114 Steam Plant Engineer 3 - Note G4 O1/O1/87 14.62 14.96'-15.44 Mr. Markakis is one'of five senior building systems operators employed at the Queen's Park complex. The Board was advised that one of those five, a Mr. Smellie, receives the G4 note. The Board was further advised that Mr. Smellie receives this compensation as a result of a settlement between the parties 'arising out of a grievance filed by Mr. Smellie. The Board was also advised that the agreement between the parties states that the agreement is 'without prejudice or precedent. Ms. Rutherford argued that the Union should be entitled to rely on the payment of the G4 note to Mr. Smellie in this proceeding. The majority of the Board (Mr. Thomson dissenting) rejected this submission. It was the majority's view that to allow the 3 Union to rely' on this evidence would clearly have th'e effect of allowing the agreement to '~ave a precedentia~ and prejudicial effect on the employer's position. ~aving agreed that the payment of the G4 note to Mr. Smellie would not have such an effect it would be inappropriate and clearly contrary to sound principles of labour relations to allow the union to rely on the agreement in this case. The settlement of grievances is clearly a matter that must be encouraged and respected by this Board. To allow parties to rely on circumstances that resulted from the settlement of a grievance on a withou~ prejudice and without precedent basis would have the effect of undermining.the i~tegr£ty of settlements and discouraging the settlement process.. It was for these reasons that the majority of the Board ruled that the Union was not entitled to rely on the circu~n$tances resulting from the settlement of the Smellie grievance in this proceeding. The evidence deali~%g with Mr. Markakis" duties was, by and large, not in dispute. Mr. Markakis stated that his job specifications contain an accurate description of his duties..In his evidence he emphasized that ~is supervisor, the building services supervisor, is not present during the evenings, nights, weekends and holidays and that he receives any calls relating to concerns about the operation of the environmental, electrical and mechanical systems. 4 There is a junior building systems operator on duty during 'ghese shifts and Mr. Markakis stated that he is res]~nsible for assigning duties to that person, Mr. G. Quidzinsky, who is manager of operations for tl%e Queen's Park complex, testified that a power plant is a plant which generates steam, generally from a boiler. He stated that there are no boilers or any other steam producing capacity in the Queen's Park complex. He noted that a steam plant chief would require a certificate under the Operating Engineers AcC, depending on the horsepower of the plant. Neither Mr. Markakis' postion nor the positio~ of his supervisor requires a certificate under the Operating Engineers Act. Mr, Quidzinsky stated that there are certain dangers inherent in working with boilers and' similar devices which is a significant factor that distinguishes Mr. Markakis' work from the work perfo~ed by persons having responsibility for a steam generating plant. Mr. Markakis has no role with r. espect to maintenance of a . boiler. Mr. Quidzinsky explained that on the evening, nights and weekend shifts Mr. Markakis is responsible for monitoring the control centre which receives calls froJ~ ~attended buildings. Mr. Markakis is not required to attend at the site of the problem as he is required to 5 remain at his' station. Rather, he is responsible for forwarding the call on to the res~r~;lsible person. Mr. Quidzinsky stated that while some of the buildings have boilers there is a stationary engineer on duty in those buildings. Accordingly, Mr. Markakis would not be required to carry out any work of any kind in connection with the steam plants, Mr, Quidzinsky also testified that all major decisions are made by one of the supervisors who are available by telephone during the "off shifts". Mr. J. Sherwin was called by the Union to give evidence as to the circumstances in which he receives the G4 note. Mr. Sherwin is classified as a Steam Plant Engineer 2 and ts at the maximum level of his salary range. He is employed by the Ontario Development Corporation at the Norham Industrial Park in Cobourg. He ,is solely responsible for the steam line and all maintenance in a boiler generated steam plant. The plant is guarded and when Mr. Sherwin is off duty he is paged to deal with any difficulties that have arisen. Mr. Sherwin is a third class stationary engineer and he is required to possess a certificate under the Operating Engineers Act in order to carry out his duties. It is clear that the Mr, Markakis is not a steam plant engineer in charge of all shift engineers in a power plant. 6 He does not a~ct as an assistant to a steam plant chie~ having resPonsibility for all institutional maintenance in the context of a power plant~TM Accordingly, the work that he performs does not' fall within the express criteria for the payment of the G4 note. The evidence established that Mr, Sherwin was paid the G4 note notwithstanding the fact that he does not act as an assistant to a steam plant chief nor is he in charge of all shift engineers. Ms. Rutherford argued that by paying Mr. Sherwin the G4 note the employer had modified the C~ass Standard, It was further submitted that the circumstances of ~r. Markakis are analogous to the circumstances of Mr. Sherwin and that the Board should conclude that Mr. Markakis is entitled to the G4 note on the. basis of a proper application of' the modified Class Standard. Ms. Rutherford emphasized that the Employer had assigned Mr. Markakis the classification of Steam Plant Engineer 3 Atypical. It was her submission that having been so classified, Mr. Markakis should be entitled, to all of the benefits that any other person classified as a Steam Plant Engineer should be entitled to. Alternative%y it was argued that the Board should conclude that Mr. Markakis' position was not properly classified and the Board should issue a "Berry order" requiring the Employer to properly classify Mr. Markakis.. Even if the Board were to accept Ms. Rutherford's 7 submission that the payment of the G4 note to Mr. Sherwin should lead us to the conclusion that the relevant Class Standard has been modified it is our, view that this conclusion would not assist Mr. Markakis. Mr. Sherwin has direct responsibilities in connection with the operation of a power plant, unlike Mr. Markakis. We cannot agree that the duties of Mr. Markakis are analogous to those of Mr. Sherwin. With respect to Ms. Rutherford's alternative submission that we should conclude that Mr. Markakis' position is improperly classified, we agree with Mr. Little's submission that to decide this grievance om the basis of whether or not Mr. Markakis is properly classified would be to allow a fundamental change in the nature of the grievance. Mr. Markakis is entitled to grieve his current classification if he wishes to do so and to have such a grievance processed i~ accordance with this Board's procedures for classification cases. These procedures have ~ot been invoked in connection with this grievance. 8 For these~reasOns, it is our eonciusion that this grievance must be dismissed, Dated at Toronto this 5thday .of March 1991 S, L, Stewart - Vice-Chairperson "I DISSENT" (Dissent to follow) I, J, 'ThomsOn - Member .M,.F, O'Toole -, Member .... . Position Specification & Class Altoc n-CSC 6!50 [ / la:~ja otfi~ ~ildJr~u with de~3il~ )~¢,vl~ja Of t~o ~ratLor, of ~ T6000 c~riz~ build~ ~ntrol syste~. So[~t -, / "~st fi:" ~xbrk is ~rfo~ on a s~ft ~. ~n~fs ~ R~ATED T~-S~ effici~ ~ ~st eff~iv~. p~ion syst~ for ~ditio~l ~me~t ~ or lea~ ~ild~s ~ ~e . au~t~ syst~ au~orizi~ ~e r~i~t for re, ir ~~ on ~ ~~ ~is or ~ti~ ~e a~r~riate au~%orities ~ r~i~. ~ni~r~ ~e ~ali~y of ~i~ delive~ of ~n~a~ s~ff ~o are ~rk~ 5. ~fo~ rela~ duti~ as a~ign~ incl~i~: - a~ ~ ~e [~sition of ~ildi~ Symt~ Su~isor in ~e ~ of ~e SKI~/S AND ~3~/~D~.:E (cont'd] k~l~ge ~ ~e o~tion a~ ~int~qn~ of ~e foll~i~ syst~: h~t~, air ~ild~, fire ~ ~fety ~. ~ility ~ p~i~ t~i~l gui~ ~ dillon ~ shift ~1. ~ility to ~e eff~ive t~i~l d~lsio~ ~ ~~ si~tio~. ~ o~1 a~x~ ~itten ~i~tion skills in o~er ~ p~ide ~s~