HomeMy WebLinkAbout1990-0595A.Lunn.92-02-20
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r¡ ONTARIO EMPL0 YÉS DE LA COURONNE
CROWN EMPLOYEES DEL 'ONTA RIO
" GRIEVANCE COMMISSION DE
1111 SETTLEMENT ~
REGLEMENT
BOARD DES GRIEFS
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T80 DUNDAS STREET WEST, SUITE 2100, TORONTO, ONTARIO. M5G TZ8 TELEPHONE/TELEPHONe: (475) 326-1388
180, RUE DUNDAS OUEST, BUREAU 2100, TORONTO (ONTARIO). M5G TZ8 FACSIMILE/TÉLÉCOPfE: (416) 325- r396
595Aj90
IN THE MATTER OP AN ARBITRATION
Under
THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT
Before
THE GRIEVANCE SETTLEMENT BOARD
BETWEEN
OPSEU (Lunn)
Grievor
- and -
The Crown in Right of ontario
(Ministry of Correctional Services)
Employer
BEFORE: N~ Dissanayake Vice-Chairperson
J. c. Laniel Member
D. Walkinshaw Member
FOR THE P. Chapman
GRIEVOR Counsel
Ryder, Whitaker, Wright & Chapman
Barristers & Solicitors
FOR THE C. Foster I
EMPLOYER Grievance Officer
Ministry of Correctional'Services
REARING February 15, 1991 I
April 8, 1991
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DECISION
This is a classification grievance. Mr. Robert Lunn, the
grievor, is employed at the Millbrook Correctional Centre, a
maximum security facility. He grieves that his position is
improperly classified as Maintenance Plumber, and seeks
reclassification as Industrial Officer 2 (IO-2).
In support of the grievance union counsel makes two
distinct arguments. The first is a class standards argument.
The second approach adopted by counsel is somewhat unique and
will be referred to as the "best fit" argument.
The class standards arqument
The grievor's present classification of Maintenance
Plumber is described in the following class definition:
MAINTENANCE PLUMBER
CLASS DEFINITION:
1. This class covers positions involving skilled
manual work at the journeyman tradesman level, in
the skilled installation, maintenance, repair and
general up-keep of plumbing installations, and
equipment; sanitary and drainage systems;components
of heating or cooling devices; or other equipment
requiring the skills of the plumbing trade, in or
about a Government building, institution or other
establishment. 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 service, and are required to
carry the work to completion according to accepted
practices and following the recognized procedures
and teChniques of the plumbing trade. These
employees may determine work methods and the work
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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 semiskilled
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 plumbers' trade.
Employees in these positions install or assist
in the installation of plumbing.equipment including
specialized equipment such as amy be required in
hospitals, laboratories or similar establishments.
They make service connections and traps; cut and
thread pipe; melt and caulk lead joints; connect
and repair galvanized, copper, glass, tile or other
plumbing lines; make general repairs to plumbing
fixtures; clear blocked drains, sinks, tubs, basins,
traps etc. They may look after the up-keep of hot
water or low pressure steam heating systems, or
cooling equipment, or make sheet metal repairs.
They assist and co-operate with other tradesmen.
OR
II. This class also covers positions where:
(i) There is only one position, having only one
incumbent, int he plumbing trade at the
establishment concerned;
(ii) supervision over the position is not
exercised by a position classified as
Maintenance Plumber Foreman, and
(iii) the sole incumbent in addition to
performing the duties of a Maintenance
Plumber (I) must estimate the quantities
of material and labour require~; plan and
layout the work; maintain in adequate
stock of supplies on site; requisition
replacements; keep account of materials
used and repairs, installations,
inspections etc. effected, for all work in
the Plumbing trade carried out at the
establishment concerned.
OR, positions at establishments where:
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(i) there are only two positions int he Plumbing
trade at the establishment concerned;
(ii) supervision is exercised over neither
position by a position classified as
maintenance Plumber Foreman, and
(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
Plumber (I), to estimate the quantities of
material and labour required; plan and lay
out the work; maintain an adequate stock of
supplies on site; requisition replacements;
keep account of materials used and repairs,
installations, inspections, etc., effected
for all work in the Plumbing trade carried
out at the establishment concerned.
Employees in positions in this class must
devote at least 60% of their work time to duties
involving the skills of the trade as in Maintenance
Plumber (I).
OUALIFICATIONS:
1. Preferably technical school education;
completion of the required apprenticeship in
the plumbing trade and certification by the
Department of Labour; *or an acceptable
equivalent combination of training and
experience; a working knowledge of the tools,
equipment, methods and practices of the
plumbing trade; a working knowledge of the by-
laws and regulations related .to sanitation and
public health.
2. Ability to work from plans or drawings;
instructional ability; good physical ~tian.
* Where the equivalent applies, the applicant
will be required to successfully complete a
civil service Trades test.
Revised January 1967
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The only witness to testify in this proceeding was the
grievor. . Counsel for the union relies on two particular
aspects of the grievor's duties as removing him out of the
Maintenance Plumber classification:
(1) The degree and nature of inmate contact.
(2) the degree of new installation work performed by him.
Inmate contact
Counsel recognizes that the Maintenance' Plumber class
definition states that "Duties may also entail the supervision
and instruction of . " . . inmate helpers". However, it is' her
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contention that the degree and nature of the grievor's
involvement with inmate helpers goes beyond what is
contemplated in the class definition. The grievortestified
that approximately 80% of his work time, he has an inmate
helper with him. Usually he has only one inmate helper.
However on some iarger projects there could be more. The
grievor testified that in addition to supervising and
instructing inmate helpers, he has responsibility for their
safety and security. He conducts searches and may issue
misconducts where there is unacceptable behaviour on the part
of an inmate. On infrequent occasions, he is requested by the
payrole board or social workers, to provide reports on
particular inmates. It is common ground that the work
performed by inmates benefits both the inmates and the
institution. The institution gets the benefit of the inmates'
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labour and the inmates learn new skills in the plumbing trade.
For his custodial responsibilities the grievor received the
Custodial Responsibility Allowance of $ 2,000.00 per annum
under Appendix 8 to the collective agreement.
In a number of prior cases the argument was made that the
degree and nature of a maintenance tradesmen's custodial
responsibilities took him outside the maintenance
classifications. In each case the argument was rejected.
See, Re Barkley and Jones, 1520/87 (Kirkwood); Re Ennis &
schler, 17/85 (Kirkwood) and Re Elrick et al, 10/85
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(Dissanayake).
The Maintenance Plumber classification explicitly refers
to "supervision and instruction of .... inmate helpers". The
duty to supervise and instruct inmates necessarily must
include the responsibility for the safety and secure custody
of the inmates. Therefore the duty to search, count, and
reprimand inmates is part and parcel of the duty to supervise
and instruct, contemplated by the class definition.. Nor are
we in agreement that the fact that the inmates perform
productive work that benefits the institution or the fact that
the inmates themselves get the benefit of learning new skills
makes any difference. While it could be said that the grievor
"teaches" inmate helpers, it is not as if he suspends his
maintenance duties in order to conduct lessons for them. He
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is either performing his maintenance plumber duties himself
with the assistance of the inmates, or he is directing the
maintenance plumbing work performed by the inmates. In either
case, the grievor remains responsible to get the job done to
the appropriate standards expected. When he isinstructin9
and directing inmates, the grievor himself is engaged in
plumbing work. (Re Elrick et aI, supra, and Re Braund et al,
39/89 (Slone) at p. 23.
Both the Re Elrick and Re Ennis & Schuler, decisions talk
about the focus of the job in question. In both, the Board
çoncluded that the focus of the grievor's job was the
maintenance aspect as opposed to the supervision or custody
of inmates. In Ennis & Schuler at p. 14 the Board concluded:
We find on the evidence that the work which the
grievors performed was primarily directed to the
maintenance and installation of electrical work as
opposed tò being the custodian of the inmates with
the primary focus on their security. Supervision
of the inmates is merely inherent to any job which
brings an employee in contact with the inmate.
A similar conclusion is inescapable in the present case.
The grievor's primary responsibility is the maintenance
aspect. The training of the inmates, while important, is only
secondary. There is no formal training plan. It is left to
the grievor's discretion to decide how many inmates to use.
He also decides which inmates to use and what use is to be
made of them. The evidence indicates that if no inmates are
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available or if the work site is out of bounds to inmates, the
grievor carries on his duties without any inmate assistance.
The grievor's involvement with inmate helpers is well
within the contemplation of his current class definition and
the grievance cannot succeed on that basis.
New Installations
The grievor testified that for the first few years of his
employment with the Ministry his time was mostly spent on
repairs and preventative maintenance. Lately that has changed
and he spends more time on larger "projects". Thus he had
installed many new washrooms from start to finish. He also
cited a large project where he dug out existi~g cables and
replaced them with new ones. It is counsel's contention that
this involvement in "new installations" takes the grievor's
position out of the Maintenance Plumber classification.
The operative portion of the Maintenance Plumber
classification is, "This class covers positions involving
skills manual work at the journeyman tradesman level, in the
skilled installation, maintenance, repair and general upkeep
of plumbing installations, and equipment . . . etc.". This
language is remarkably analogous to the language in the
Maintenance Electrical Foreman class definition which was in
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issue in Re Ennis & schule~ (su~ra). At pp. 6-7, the Board
stated:
The key operative sentence in the job standard
of the Maintenance Electrical Foreman is the first
sentence which states:
Positions allocated to this class involve the
supervision of at least two skilled tradesmen,
employed at the journeyman level, in the
skilled installation or maintenance work
related to the general upkeep of electrical
wiring, equipment, fixtures, etc., .at a
Government building, institution or other
establishment or in the field.
As each grievor supervised two electricians at
the journeyman level, they met the first criteria.
However, the work which the Maintenance Electrical
Foreman performs may fall into the category of
either new installations or maintenance as the job
standard uses the conjunctive word "or" to link
"installation" and "maintenance". No either working
is found in the job standard which suggests that the
amount of installation work performed is to be
limited. On the contrary, the classification states
"These employees may themselves perform any of the
duties of a Maintenance Electrician" which covers
work of a maintenance nature, which is followed by
"They must also perform other tasks of a related
nature, but at least 60% of their time must be
devoted to electrical work or the supervision of
electricians." the term "electrical work" is a
general term, and therefore includes all electrical
work, which includes new installations and the
maintenance of eXisting wiring.
The only limitation on installations and
maintenance is that the work must relate to the
"general upkeep of electrical wiring, equipment, I
fixtures, etc. at a Government bui lding , I
institution..."
If the Board looks to the nature of the work
performed, all the work relates to maintaining the
standard of the buildings and the equipment found
wi thin the buildings. Installation of new equipment
and extensive new wiring, does nt detract from the
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broad term of "general upkeep" used in the
description of the job standard.
'Therefore, the Board finds that new
installations are included in the job standard for
a Maintenance electrical Foreman and that the
standard does not limit the amount of new
installations involved.
In Re Elrick et al (supra), the Board had to consider
whether a number of maintenance class definitions, including
the one in issue here (Maintenance Plumber), contemplated
duties involving new installations. The unanimous panel
chaired by this Vice-Chairperson stated as follows at pp. lO-
II of its award:
Each of the class definitions uses the phrase
"installation, maintenance, repair and general
upkeep" . In our view this phrase contemplates a
broader range of duties than that contemplated by
the definition of maintenance work urged upon us by
the grievors. The class standards envisage first
of all the installation of facilities. Then it is
intended that what is installed is maintained, and
as and when required repaired. The example of
additional washrooms being installed in buildings
to accommodate the increasing numbers of female
staff being hired is illustrative. The grievors
view this work as being outside their maintenance
trade classifications. However, we do not read the
work "installation" as narrowly as the grievors do.
There is nothing in the class definitions to
indicate that installations mean installations other
than new installations. On the contrary the
preamble to the Maintenance Trades Classes expressly
states that "some positions may also involve
construction, or alterations to structures or the
installation of new services or equipment." That
is a clear indication that the construction of
structures or installation of new services are not
seen as outside the scope of duties within the
maintenance trades category, as suggested by the
Union. Therefore, the grievances fail in that it
has not been established that the grievors· work is
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outside the scope of the maintenance trades class
definitions.
It is to be noted that the majority of the "new
installations" performed by the grievor involved installation
of new washrooms. That is the exact work the Board in Elrick·
used as an illustration in the foregoing èxcerpt and found to
be within the maintenance trades class.
We find the reasoning in the foregoing decisions to be
persuasive, and equally applicable in this case. The
grievor's involvement in new installations or projects does
not remove his position outside the Maintenance Plumber
classification.
We find that the grievor performs the duties described
in the Maintenance Plumber class definition. This was really
not disputed. We have found the claim that the grievor
performs duties that are outside the class definition to be
unsubstantiated. Accordingly, the ui1ion I s class standards
argument fails.
The Best-fit arqument ,
As the Board in Re Braund et al (supra) stated at p. 15:
In classification cases generally, there are
two ways that an employee may succeed in obtaining
a new classification: the "standards approach" and
the "usage approach" . These are two independent
bases for proceeding. In the standards approach,
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the task of the Board is to decide whether the job
can reasonably fit within the assigned standard, as
written. In the usage approach, the Board will
order the Employer to reclassify an employee if it
can be shown that someone in a higher classification
is doing essentially the same job as the grievor.
These principles are well established.
In the foregoing pages, we have considered and rejected
the grievor's IIstandards approachll to his grievance. union
counsel expressly stated that she was not making a classic
usage argument, in that there is no claim being advanced that
the grievor is performing substantially the same duties as a
higher classified employee or employees. The argument is
that even if the grievor's duties fall within his current
classification, they also fit within the 10 classification
series. According to her, if the core duties of the grievor's
job falls within both classifications, the Board must "look
at the equities" and intervene. It is common ground that the
10 series of classifications falls within the Corrections
Officer Category and has a higher pay rate. Counsel submits
that the Board should intervene to redress the inequity,
because the grievor is paid less despite the fact that his
duties fall within a higher paid classification.
Counsel recognizes that this argument is a novel one,
which prima facie runs counter to the Board's established
jurisprudence. The Board has held in the early case Re
Parker. 197/83 (Draper) that it must accept the classification
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system as it is found. This was echoed more recently in Re
Armstronq 1190/87 (Gorsky), where the Board at p. 37 observed
that "we must take the classification system as we find it.
It is hardly a perfect system.and can lead to some strange
conclusions. This Board is also a prisoner of this system.t1
In Re Elrick (supra) the Board stated this of its role:
It is important to note that the role of the
Board is not to examine the higher classification
claimed, to see if the grievors'positions equally
fit that higher classification. Before reaching
that step, the Board must first ~atisfy itself that
the position does not reasonably fit the existing
classification.
Union counsel relies on the Divisional Court's decision
in Re Berry, qS confering jurisdiction on the Board to place
a grievor in a higher classification, eventhoughhe properly
fits within his current classification. She disagrees with
the Board's findings in the past, that it must accept the
employer's classification system as it finds it. She points
to two decisions of the Board, Re Ennis & Schuler (supra) and
Re Barklev and Jones (supra) and Re Barklev and Jones (supra)
as instances where the Board went on to consider whether the
grievor's position fit a higher classification, eventhough it
had concluded that the position reasonably fits within the
existing classification. She urges the Board to follow that
approach.
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In the two cases cited by counsel, the Board did indeed
find that the grievors' position fit within his existing
classification, but then proceeded to consider whether the
position also fit the claimed higher classification. In each
case the Board concluded that the position did not fit the
higher classification. There is no discussion in either case
about the Board's authority to award a higher classification
in the circumstances. We do not consider either decision as
authority for the Board's jurisdiction to award a higher
classification, when the grievor's position is currently
properly classified. Rather, we see the inquiry by the Board
in those cases, as obiter dicta, simply intended to reinforce
that the grievor would not have been entitled to the higher
classification claimed in any event.
If those decisions represent a departure from the Board IS
established practice, we prefer the latter practice as being
the one correct in law. In Re Townsend et al 24/85 (Brent)
at p. 5 the Board stated: .
"It is therefore the opinion'of the Board that in
dealing with a classification decision unfettered
by Article 5.1.2 of the collective agreement it must
first determine whether the grievor has proven on
balance that he is improperly classified. This
determination can be made in accordance with the
principles established in the jurisprudence of this
Board as it existed before the Divisional Court
decision in Berry since we do not consider that that
decision dealt with how one determines whether an
employee is improperly classified. If the employee
has not satisfied this Board that he is improperly
classified, then the matter is at an end. If the
employee has satisfied the Board that he is
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improperly classified, then the Board must fashion
an appropriate remedy, which mayor may not be to
award the grievor the classification which he sought
in his grievance.1I
In Re Braund (supra) at p. 19 the Board stated as follows
after a review of the Board's jurisprudence:
What the cases clearly require us to do is,
first, look at the class standards in relation to
the grievors' jobs. If the jobs as performed can
fairly fit within the general language of the
assigned standards, then that part of the analysis
is at an end. It would not matter that the
grievors' jobs might also fit into another class
standard. only if the assigned classifications in
this case were seen to be wrong, would we have to
look at the Industrial Officer series, to decide if
the appropriate remedy were to assign the grievors
to classifications within that series. We are not
at that point.
We agree. In the standards approach the Board may find
that a position is improperly classified because the grievor's
core duties do not fit the class definition as written. In
the usage approach the Board may find that while the po~ition
fits the class definition as written, the classifications
established by the employer by practice, makes it improper.
In both cases the Board must find that the grievor is
improperly classified, before considering a remedy.
In our view, this state of the Board's jurisdiction is
not affected by the Court decision in Berrv. As the Board
stated in Re Townsend in the above quoted passage, that court
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decision does not deal with how one determines whether an
employee is improperly classified. It deals with the Board's
remedial jurisdiction, after it has found that the grievor's
position is improperly classified. It is of no assistance to
the union's position here.
The Board has no inherent equitable jurisdiction. (Re
Haladay, 94/78 (Swan) . It derives its jurisdiction in
relation to classification grievances from section 18(2) of
the Crown Employees Collective Barqaininq Act and Article 27
(more particularly 27.11.1) of the collective agreement. An
employee's right to file a classification grievance also flows
from' these provisions. Section 18 (2) of the Act gives the
employee a right to grieve, and the Board a right to consider
a grievance, "that his position has been improperly
classified". Under article 27.11.1 of the collective
agreement the right to file a grievance is accorded to "an
employee who alleges that his position is improperly
classified".
The Board in Re Armstronq et al (supra) states at po37
This Board has no power to place the grievors
in the Industrial Officer classification series
merely because of the apparent unfairness which the
majority of the Board pointed out in the Townsend
case. person doing essentially the same job, in
terms of identified duties and responsibilities,
are placed in different classification series with
marked pay differentials.
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For the foregoing reasons, it is our conclusion that,
having determined that the grievor's position is properly
classified as it is, we have no jurisdiction to consider
awarding a higher classification. Therefore, it is not
necessary for us to decide whether the grievor's duties fit
within the IO-2 class definition as claimed.
While that disposes of this grievance, we cite with
approval the following, which appear to be very relevant in
considering the ongoing dispute between the parties with
regard to the maintenance and Industrial Officer series óf
classifications.
In Re Edwards and Maloney (supra), Vice-Chairperson
swinton wrote at p. 11.
The tasks performed by individuals in different
classifications may appear very similar, yet it must
be kept in mind that the classifications have been
designed for a purpose - whether to reflect
different emphases with regard to similar tasks, or
to reflect greater discretion or responsibility by
those in one of the classifications, or to reflect
the higher qualifications demanded of those in the
more senior classifications (the aim being to
preserve the morale and status concerns of those
more highly qualified in a particular field of
endeavour). An arbitration board must therefore be
particularly careful in assessing classification
grievances where there is extensive overlap in job
duties, so that a decision does not interfere with
the overall aims of the classification system.
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In Re Ennis & Schuler (supra) Vice-Chairperson Kirkwood
at pp. 13-14, engages in an extensive review of the Industrial
Officer and Maintenance series of class definitions. She
concludes that the primary focus of the former series is lito
ensure the custody of the inmates and to train and to direct
them in the production of various products". (p. 13) . At p.
14 she contrasts this with the maintenance series, where the
primary purpose and emphasis is the maintenance aspect.
As the Board has stated many times before, this
difference in focus and emphasis is the basis for the
existence of the two types of classifications. Dur in9 the
hearing, it was apparent that the grievorrs real complaint is
that he is underpaid as a maintenance plumber as compared to
the earnings of Industrial Officers. Thus much emphasis was
placed on the fact that the grievor and the other incumbents
in the maintenance series are certified tradesmen, while the
great majority of Industrial officers are not. Whatever the
merits of this alleged unfairness, the result of this decision
is that this Board has no jurisdiction to remedy that through
a classification grievance. There are obvious alternate
forums where the union may raise alleged unfair pay
differentials.
As a result of all of the. foregoing, this grievance is
hereby dismissed.
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Dated this !Oth day ofFebruary,1992 at Hamilton, Ontario
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N. Ois nayake
Vice-Chairperson
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/ J. Lanie¡
Member ______-
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O. lkinshaw
Member
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