HomeMy WebLinkAbout1990-0600.Gosal et al.90-07-22
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" 't ONTARIO EMPLQYÉS DE LA COURONNE
CROWN EMPLO'r'ElfS DEL 'ONTARIO
1111 GRIEVANCE CpMMISSION DE
SETTLEMENT REGLEMENT
BOARD DES GRIEFS
r80 O/JNl)AS STReET WEST, SUITE 2100, TORONTO, ONTARIO. M5G rZ8 TELEPHONEITELEP¡'¡ONE: (41ô) 326-7388
r80. RUE DUNDAS OUEST, BuREAU 2100. TORONTO ¡ONTARIO). M5G lZ8 FACSIMILEIT~U;COPIE : (416) 325-1396
600/90
III THB HATTER or All ARBITRATION
Onder
. THB ORC" BKPLOYEES OOLLBOTIVB BARGAINING ACT
Before
TlIB GRIEVANCE SETTLBHEHT BOARD
BETWEBN
OPSEU (Gosal et al)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Correctional services)
, Employer
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, BEPORE: w. Kaplan Vice-Chairperson
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I. Thomson Member
A. Stapleton Member
:rOR THE M. Doyle ~
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE J. Benedict
EMPLOYER Manager
Staff Relations & compensation
Ministry of Correctional Services
BEARING November 29, 1990
June 17, 1991
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Introduction
This case involves three classification grievances. Jim Whitaker
and Russell Edgerton are Maintenance Electricians at the Millbrook
Correctional Centre. Jhalman Gosal is a Maintenance Electrician
at Metro West Detention centre. All three grievors, who are
classified as Maintenance Electrician's, seek reclassification.
In brief, the union argued that the class standard for Maintenance
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Electrician failed to properly describe the qrievors' duties and
responsibilities. The employer took the position that the class
standard accurately described all three grievor's duties and
responsibilities. Most of the evidence was not in dispute.
The Evidence
Mr. Edgerton gave evidence first. Mr. Edgerton has completed an
electrical apprenticeship and has a "journeyman's" licence. He
also has an industrial electrician's licence. Mr. Edgerton's
employment with the Ministry began in 1983 when he commenced work
as a casual employee filling in three days a week for an
electrician who had been injured. Subsequently, Mr. Edgerton was
employed on a one-year contract and then he took a position, for
a short time, as Industrial Officer working in the Marker Plant
where license plates are made. After three years as an Industrial
Officer, in september 1987, there was an opening for a full-time
electrician and Mr. Edgerton got the job. There are two
Maintenance Electricians at Millbrook, Mr. Edgerton and Mr.
Whitaker.
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Mr. Edgerton testified to receiving general supervision from his
supervisor, Mr. Bruno Kolorz, but noted that his supervisor was not
an electrician. Mr. Edgerton and Mr. Whitaker set their own
priorities, unless instructed otherwise. Mr. Kolorz would give
the grievor's "tickets" that would indicate what jobs needed to be
done,. It was up to Mr. Edgerton and the other grievor to decide
how to go about doing a job.
Mr. Edgerton was shown his position specification and he testified
that it accurately described his duties and responsibilities,
although some of the enumerated functions were not 'performed at
Mi11brook. One lacunae in the position specification, however, was
that it did not reflect Mr. Edgerton's job costing and supply
ard~ring functions. With respect to costing, when assigned a job,
Mr. Edgerton and Mr. Whi taker would often have to estimate the
amount of time'and material required for the job. When supplies
are required" Mr. Edgerton and' Mr. Whitaker must telephone
suppliers in order to obtain quotations. Mr. Edgerton is also
required to ensure that regularly required items are kept in stock.
This is done by a visual check. Mr. Edgerton and Mr. Whitaker are
required to keep a log book at the end of each day indicating the
status of their work. Mr. Edgerton and Mr. Whitaker have also been
called upon to escort outside electrical contractors working in the
institution, and may ,be required to assist them as they go about
their work. .
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Mr. Edgerton testified about the use of inmate helpers at
Millbrook. There are certain security areas in which the inmate
helpers cannot work, and Mr. Edgerton estimated that he spent about
30% of his time in those high-security areas. The other 70% of his
time is spent in ar.eas where inmate helpers can assist. The
inmates help in the repair of cell doors, and other tasks such as
lighting repairs. They are also called upon to paint and do other
chores. The Board heard some evidence about how these inmate
helpers were assigned to Mr. Edgerton and Mr. Whitaker, but as this
evidence is not material to the matter under review, it is not
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necessary to set it out.
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Generally, when Mr. Edgerton was working on a job and required the
assistance of an inmate, he would go and get one (all the inmates
are men) . Mr. Edgerton would ensure that the inmate had work boots
and safety glasses if necessary. Mr. Edgerton would tell the
inmate what to do and how to do it. He would teach the inmate,
through demonstration and example, what he needed to know to get
the job done. Mr. Edgerton has used inmates for up to six days at
a stretch.
When assigned an inmate, Mr. Edgerton and Mr. Whitaker are
responsible for the inmate1s security. Generally they supervise
the inmate in the absence of a correctional officer. At the end
of a job, Mr. Edgerton is required to do a tool check, and to frisk
the inmate before returning him to the metal detector. When the
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institutional count is done each day at approximately 14:00, Mr.
Edgerton is required to report on ~he inmates in his care.
Mr. Edgerton is responsible for ensuring that the inmates do their
assigned work and that it is properly done. Mr. Edgerton evaluates
the inmates in his care, for the purpose of assisting institutional
officers in determining which employees should be sent to the camp,
an annex outside of the institution where some inmates live and
work. Mr. Edgerton and Mr. Whitaker may be required to fill out
misconduct forms, occurrence report forms, and medical injury
forms.
Mr. Edgerton gave some evidence with respect to his years spent
working as an Industrial Officer in the Marker Plant. At that time
he had two or three inmates in his care, and he instructed them in
the operation of machinery. In this position, Mr. Edgerton was
required to file the same kind of reports , that he is currently
required to file as necessary. The method of instruction was also
similar: explanation and demonstration.
Mr. Edgerton indicated why he felt that the class standard did not
appropriately cover his duties and responsibilities. It is
convenient to set out some of the relevant portions of this
standard:
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Maintenance Electrician
Class Definition
I. This class covers positions involving skilled manual
work at the journeyman tradesman level, in the
installation, maintenance, repair and general up-keep of
electrical equipment, wiring and fixtures in or about a
Government building, institution or other establishment,
or in the field. According to verbal or written
instructions, the employees in these positions are given
assignments by a Foreman, Maintenance Foreman, Buildings
Superintendent or Maintenance Superintendent or other
official responsible for maintenance or other services.
They sketch or follow schematic diagrams as necessary and
carry the work to completion according to regulations and
accepted practices and following recognized procedures
-and techniques of the electrical trade. - These employees
may determine work methods and the work is reviewed for
adherence to plans and instructions, satisfactory
production and quality of workmanship. Duties may also
entail the supervision and instruction of apprentices,
unskilled or semi-skilled workers and patient, resident
trainee or inmate helpers. These employees may also be
required to perform related or other tasks but at least
60% of their work time must involve use of the skills and
knowledge of the electrician's trade.
Employees in these positions wire, inspect, adjust and
repair the electrical components of electrically powered
or controlled equipment such as: elevators, laundry
machinery, refrigeration and air conditioning machines,
heating equipment, cooking and baking equipment, paint
baking ovens, kilns, hydraulic presses, tradesmen's and
machine tools, tailoring and sewing equipment, pumps,
milking machines, emergency diesel alternators,
electrically operated doors and locks.
They install, check and repair items such as: internal
telephone and communications systems;, radio, T. V . and
electronic equipment; lighting circuits; fire or other
alarm systems.
These employees install, repair or replace items such as
(high or low voltage): electric wires and cables;
transformers; generators or alternators; switches,
circuit breakers, relays; panel boards; meters; traffic
or flasher lights. They may provide electrical service
to construction sites, mobile trailers and the like, and
they assist and cooperate with other tradesmen and non-
trades staff.
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OR
II. This class also covers positions where:
[omitted]
OR, positions at establishment where:
(i) there are only two positions in the electrical trade
at ~he establishment concerned;
(ii) supervision is exercised over neither position by
a position classified as Maintenance Electrician Foreman,
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(iii) the one incumbent of one of the positions acts as
lead hand and is required in addition to performing the \
duties of a Maintenance Electrician (I), to estimate the
quantities of material and labour required; plan and lay
out the work; maintain an adequate stock of suppli~s on'
site; - requisition replacements; keep accounts of
materials used and repairs, fabrications, installations,
inspections, etc. effected for all work in the Electrical
trade carried out at the Establishment concerned.
Mr. Edgerton testified that his supervisor, Mr. Kolorz, would come
and check when a jOb was completed but that was about it. In his
view, he did not receive the kind and quality of supervision
contemplated by this class standard. Moreover, Mr. Edgerton
testified that he did not perform electrical work on some of the
machinery indicated on the class standard because that machinery
was not present at Millbrook, for example, milking machines, or
because the maintenance of that machinery was the responsibility
of other skilled trades, such as elevator repair. Mr. Edgerton
also testified that there was no "lead-hand" position at Millbrook,
and he referred to his responsibility and that of Mr. Whitaker in
ordering supplies and so on as indicated in -(iii) above.
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Mr. Edgerton elaborated on his duties and responsibilities in
cross-examination. He told the Board that he would usually have
an inmate helper three or four days a week for a maximum of six
hours per day. For the most part, these inmates are assigned
general labour work, such as assisting with tools, pushing the shop'
cart, carrying a ladder and cleaning up. sometimes these inmates
assist in pulling wires through conduits. They can also assist
with changing switches, and removing broken electrical motors and
replacing them with functional ones.
with respect to Changing switches and replacing motors, Mr.
Edgerton explained to the Board what was involved, and it was clear
from his evidence that the inmates could be quickly trained to
perform these tasks. Mr. Edgerton agreed that the reports he was
required to fill out were fairly routine, and he told the Board
that he received a Custodial Responsibility Allowance of $2000.00
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in accórdance with the terms of the Collective Agreement (see
Appendix 8). with respect to the ordering of supplies, Mr. Edgerton
further explained the procedure, and it involves Mr. Whitaker or
him writing up a requisition, which would then be reviewed by the
office manager before being forwarded to another individual for
action. Mr. Edgerton testified that part of the job of a skilled
trades person is to estimate the time and materials required for
a job.
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In his evidence, Mr. Whitaker gave some background about his
employment at Millbrook. He told the Board that Mr. Edgerton's
evidence was accurate, and he testified generally about the sizing
and costing of electrical jobs. Mr. Whitaker testified that he
could spend up 'to six months working with an inmate on a particular
job. Mr. Whitaker was not asked, any questions in cross-
examination.
Mr. Gosal also testified and gave evidence about his background and
experience. He told the Board that his position specification was
accurate, although he thought that he worked as an electrician 80-
85% of the time, not 60% of the time as indicated. Like the other
I grievors, Mr. Gosal must estimate time and materials required for
a job. He must· also keep his supervisor informed about what
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materials are required. Mr. Gosal keeps track of his work in a
log.
Mr. Gosal's experience with inmate helpers is different from that
of Mr. Edgerton and Mr. Whitaker. At Metro West, the inmates are
not allowed to work on controls and motors. Accordingly, when
inmate helpers are assigned they are generally used for chores such
as carrying ladders. Mr. Gosal estimated that he uses an inmate
helper approximately one day per week. When he uses an inmate
helper, Mr. Gosal must ensure that he does not take tools away with
him. In the past, Mr. Gosal has done some training of young
offenders, e.g., how to carry a ladder, what different electrical
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parts are called, and so on. Mr. Gosal has never been required to
fill out any forms with respect to his inmate helpers, although if
there was an accident or misconduct he would, of course, have to
report it.
Sometimes, as often as once per day, Mr. Gosal is required to watch
inmates and hold keys while correctional officers are otherwise
engaged. Mr. Gosal has also received some instruction in what to
do if there is a riot.
Mr. Gosal reviewed the class standard, and he testified that
neither of his supervisors, "reviewedfl his work in the way
contemplated by that standard. He also pointed out some items,
such as elevators, for which he was not responsible.
At the conclusion of Mr. Gosal's evidence, Mr. Benedict advised the
Board that he·would not be cross-examining this grievor and that
he would not be calling any reply evidence. Accordingly, the
matter proceeded directly to argument.
Union Argument
union counsel made separate submissions with respect to the
grievors. Turning first to the classification disputes of Mr.
Edgerton and Mr. Whitaker, counsel argued that the evidence
demonstrated that the class standard did not accurately describe
these grievors' duties and responsibilities. Counsel emphasized
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the important parts ordering activities of both grievors. Counsel
pointed out that these two grievors ~were responsible for
maintaining stock, filling out a log book and escorting and
assisting electricians who come into the institution from outside.
Counsel also argued that the passing reference to inmate helpers
in the class standard was not sufficient, for it failed to
adequately comprehend the extent of these two grievors' invol vement
with inmate helpers. Counsel pointed out that the salient sentence
used the word IImay". In counsel's view, the evidehce established
that the grievors played a large role in the training of these
inmates, and had significant security' responsibility. This was
another reason, counsel argued, that a reclassification' order
should be given. While these two grievors receive the Custodial
Responsibility Allowance, that did not, in counsells view, change
the fundamental fact that the class standard failed to fully
describe their extensive involvement with inmate helpers.
With respect to Mr. Gosalls grievance, counsel pointed out that it
was the uncontradicted evidence that Mr. Gosal regularly performed
back-up work for correctional Officers'. Nowhere in the class
standard does mention of this back-up work appear, and counsel
argued that this was reason enough to find that Mr. Gosal was
improperly classified. Supporting such a conclusion was the fact I
that Mr. Gosal1s work was not reviewed in the way contemplated by I
the class standard. Counsel also referred to the training work Mr.
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Gosal has done with young offenders.
Counsel also argued that there should be a lead hand designation
at Millbrook, and that the evidence indicated that the grievor's
were performing lead hand activities. In conclusion, counsel
argued that the employer has a responsibility to ensure that its
class standards fairly and accurately describe the work of
positions assigned to those standards. In the instant case,
counsel submitted the employer had failed to do that, and this was,
accordingly, an appropriate case for a Berry order.
Emplover Arqument
Mr. Benedict took the position that the evidence established that
the grieyors were properly classified. In the instant case, the
union had failed, in Mr. Benedict's view, to prove that the
Maintenance Electrician class standard failed to adequately
describe their duties and respon~ibilities. Mr. Benedict argued
that the jurisprudence of this Board is that a class standard need
not include every duty performed by a person with a job allocated
to that standard. Moreover, just because some of the duties
described in a class standard were not performed by an individual
did not mean th:at that class standard did not apply. In Mr.
Benedict's view, the jurisprudence was also clear that the union
bore the burden of proving to the Board that a position did not
fall within the four corners of a class standard. Mr. Benedict
argued that the union had failed to meet its burden in this case.
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Mr. Benedict made some detailed SUbmissions' with respect to the
nlead hand" provision of the Maintenance Electrician class
standard, and he drew the Board's attention to certain parts of the
preamble to this series. His argument, however, can be summarized,
and it was to the effect that while it might be appropriate for the
employer to designate one of the two maintenance electricians at
Millbrook to the "lead hand It category, that was not the issue
before the Board in that it did not raise a classification dispute.
The "lead hand II position was already in the class i fica tionthe
Millbrook qrievor's had impugned. Put another way, the "lead hand"
position fell'within the Maintenance Electrician class standard.
This was a classification grievance, and no classification issue
was raised by the "lead hand" designation, for to designate someone
I a "lead hand" would not change their classification.
Mr. Benedict argued that both the class standard and the collective
agreement contemplated the grievors supervising inmates, and that
the range of the supervision testified to did not go beyond that
anticipated by the standård or negotiated in the collective
agreement. Mr. Benedict pointed out that the grievor's all
received special compensation for their limited custodial duties.
In conclusion, Mr. Benedict urged the Board to find that the
grievors were properly classified.
Following the hearing, Mr. Benedict provided the Board and union
counsel with some cases pertaining to the matters u~der review.
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In £nnisjSchuler 17/85 (Kirkwood) the Board was called upon to
consider the classification grievances of two Maintenance
Electrician Foremen at the Guelph Correctional Centre. Among the
matters in issue was the significance of their custodial
responsibilities. The Board noted that:
The duties which the grievors had to train and supervise
the inmates wo~k, also falls under the description that
"In addition to journeyman tradesmen, they may supervise
unskilled or semi-skilled employees and patient,
resident, trainee or inmate helpers." As this statement
specifically refers to the supervision of inmates, it
will, by implication include a responsibility for the
custody of inmates, as the very essence of a correctional
insti tution is to ensure the custody of its inmates. Any
employee who works in a correctional institution will
have the security of the inmates as a primary
consideration in the performance of their job. The
Maintenance Electrical Foreman I s responsibility to ensure
that the inmates are frisked whenever they arrive or
return to their cells, or to ensure that he does a body
count of the inmates every one half hour is part of those
tasks. These responsibilities are reflected in both the
job standard and in the Job Specification.
The Board therefore finds that the duties which the
grievors perform as Maintenance Electrical Foremen are
contemplated by the description (at 11-12). (See also
the Board's observations at 14.)
In Braund et al 39/89 (Slone), the Board was called upon to
consider what impact the Custodial Responsibility Allowance had on
a classification grievance where it was claimed that the degree of
reliance on inmate labour had taken the job out of its assigned
classification. The Board in Braund et al began by citing the
following observations from Townsend 04/85 (Brent):
. . . the fact that the grievor is paid the Custodial
Responsibility Allowance is irrelevant when" determining
whether the job is properly classified. The payment of
the allowance is consistent with the Employer's position
that the job in question is not one which is in the
correctional series where custodial responsibilities in
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relation to inmates are recognized. Clearly, whenever
the allowance is paid, the Employer is recognizing that
the employee is called upon to perform custodial duties.
It assumes that there is a proper classification of the
I employee's job before the allowance becomes payable. If'
the job is not properly classified, the fact that the
allowance is paid does not correct that wrong.
According to the Board in Braupd et al there was, however, an
important distinction. In those cases where the classification
could be said to be appropriate:
except arguably that it does not recognize the full
degree of custodial responsibility allocated, it is our
view that the payment of the CRA is relevant. The CRA
is part of the bargain between the parties. It is a
supplementary allowance for supplementary duti~s
performed. It is the grievors' argument that those
duties have changed the character of their jobs. If that
argument' were to prevail, then possibly every job
involving custodial duties could be held to be wrongly
classified. That would render the CRA superfluous. More
appropriately, in our view, the CRA should be seen as a
consensual quid pro auo for employees whose jobs have
been given an added component which probably is l;1ot
reflected in their classification, but where the "bottom
line" responsibility of the job, as described in the
standards, has not changed (at 26) (emphasis not ours) .
See also Barklev/Jones 1520/89 (Kirkwood).
Decision
Having carefully considered the evidence, authorities and argument
of the parties we have come to the conclusion that all three
grievances must be dismissed.
In case after case, this Board has indicated that in order for a
classification grievance to succeed, the union and the grievor must
satisfy the Board that there is a substantial difference between
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the duties being performed and the duties described in the class
standard.
In the instant case, all three grievors were agreed that their
position specifications accurately described their duties and
responsibilities. All three grievors were also of the view that
the class standard did not accurately describe their duties and
responsibilities. However, when the evidence is carefully examined
it is clear that this is not the case. While the grievors may not
be receiving the level of supervision contemplated in the class
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standard, and while they may not service and install some of the
equipment mentioned in the class standard, the ,evidence was
overwhelming that this class standard incorporates the large part
of these grievors· duties and responsibilities.
Very simply, the Maintenance Electrician class standard describes
general electrical maintenance work, and this is the work that the
qrievor's clearly spend 'most of their time performing. This class
standard is not one hundred percent accurate, few are. It does,
however, accurately and comprehensively describe the grievors' core
duties and responsibilities.
We also find on the facts that the instruction and supervision of
the inmate helpers does not take either Mr. Edgerton or Mr.
Whitaker out of this class standard. The standard anticipates that
the grievors may be called upon to do this work, and the Collective
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Agreement provides them with extra compensation for their doing so.
Mr. Gosal, as noted above, does very little-inmate instruction, and
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he too is compensated for custodial functions he is periodically
called upon to perform. None of these grievors -were performing
duties anything like those performed by Industrial Officers.
Rather, all threegrievors are doing core electrical maintenance
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work with the periodic assistance of inmate helpers as envisaged
in the class standard and as compensated for by the Collective
Agreement.
We heard some evidence with respect to the estimation of time and
materials, ordering supplies and so on that takes place at
Millbrook. These duties appear to be described by the "lead hand"
designation cited above, although we did not ' hear sufficient
evidence to determine whether or not either grievor was performing
"lead hand" work. Clearly, both grievorls were performing some of
the work indicated in the Iflead hand" portion of this class
standard, but it is not at all clear that either Millbrook grievor
is performing enough of this work to qualify as the Iflead hand."
Had the evidence established that one of the grievors' was
performing such work we may have been persuaded to direct the
employer to designate that grievor the lead hand.
In our view, there may be circumstances where an employee can be
said to be improperly classified within a classification where that I
classification, as the instant one, sets out and covers different
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categories of positions. In the instant case, general electrical
maintenance work is covered by this classlfication and so too is
lead hand electrical maintenance work. Additional responsibilities
are required of the "lead hand. ,. Presumably, compensation would
reflect that fact. This may, therefore, be a classification issue.
There is not, however, sufficient evidence of this in the instant
case. Accord.ingly, it is not necessary to address Mr. Benedict's
argument that no classification issue can be raised where the
classification sought is a subset of the classification. the
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grievance impuqns. Mr. Benedict, however, . indicated at the
conclusion of the hearing that the employer would review the "lead
hand" matter and we would urge that it do so.
In conclusion, we find that the union has failed to demonstrate
that any of these grievors are improRerly classified. In our view,
the evidence indicates that the grievors are properly classified,
for there is no evidence of any real difference between the duties
they perform and the duties described in the class standard. In
the result, all three grievances are dismissed.
lIated at ottawa this22ndday of .July 1991.
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W.1.lliam Kaplan
Vice-Chairperson
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I. Thomson
Member ( ?
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Member
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