HomeMy WebLinkAbout1991-1793.Lawrence.94-04-07 ONTARIO ' EMPL C, Y~-S DE LA COURONNE ~"
CROWN EMPLOYEES DE L'ONTARIO
GRIEVANCE C,OMMISSION DE
SETILEMENT REGLEMENT
BOARD DES GRIEFS
180 DUNDAS STREET WEST, SUITE'21~, TO~ONTO, ONTAR~. M5G 1Z8 TELEPHONE/T~L~PHONE: [476) 326- 7358
lEO, RUE OUNOA$ OUEST, BUREAU 2100, · TORONTO (ONTARIO). M5G 1Z8 FAC$~M~LE/T~L~COPIE : 44 ~6] 326- 1396
1793/91
IN TEE MATTER O~ANARBITRATION
under
THE CROWN EMPLOYEE8 COLLECTIVE BARGAINING ACT
Before
THE ~RIEVANCE ~ETTLEMENT BOARD
BETWEEN
_ OLBEU (Lawrence)
Grievor
The Crown in Right of Ontario
(Liquor Control Board of Ontario).
Employer
BEFORE: J. Roberts Vice-Chairperson
E. Seymour Member
F. Collict Member
FOR THE C. Flood
~RIEVOR Counsel
Koskie & Minsky
Barristers & Solicitors
FOR THE B. Labord
EMPLOYER Counsel
Hicks, Morley, Hamilton, Stewart & Storie
Barristers & Solicitors
HEARIN~ March 30, 1993
December 7, 16, 1993
1
AWARD
I. INTRODUCTION
This is a classification case. On August 15, 1991, the
grievor filed a grievance that essentially called into question a
decision made by the Liquor control Board of Ontario (LCBO) in 1987
to reclassify the position of Shipper/Receive~ from the
classification of Warehouse Worker 4 to the slightly lower-rated
classification of Clerk 3.~ The grievor claimed that ~is position
should be reclassified back into the Warehouse Worker 4
classification or in the alternative, upgraded to the level of
Clerk 4. Failing either of these alternatives, it was submitted,
a Berry order should be issued directing that an appropriate
classification be fashioned for the position. For reasons which
follow, we conclude that the position in question was properly
classified as a Clerk 3 position andas a result the grievance must
be dismissed.
The events leading to this arbitration occurred at the
warehouse of the LCBO near the intersection of Highway 401 with
Wellington Road in London, Ontario. This warehouse had a main
office at the front of the building and~ a 3,000 square foot
warehouse at the back. Most of the bargaining unit employees in
According to the Collective Agreement effective, January
1, 1991, the top 1991 hour rate for Warehouse Worker 4
was $17.83 per hour, whereas the rate for the Clerk 3.was
$17.36 per hour.
2
this warehouse were classified as Warehouse Workers 3's or 4's. In
fact, from about 1983 to 1986 -- when he went off.work for 26
months on Workers Compensa%ion -- the grievor was a Warehouse
Worker 4.
Among the jobs that were assigned to the Warehouse Worker 4
classification, there were some that were considered to be more
desirable than others. The employees within the classification did
not rotate through these jobs; rather, they advanced into these so-
called "plum" jobs by.virtue of seniority. Seemingly one of the
most prized of these "plum" jobs was that of Shipper/Receiver.
Perhaps because this job involved less extensive physical exertion
than others, it was sought after by the most senior employees in
the classification.
In 1987, however, the LCBO reclassified downward into the
Clerk 3 classification all,of the Shipper/Receiver jobs at its
warehouses, including the London warehouse. In line with this, on
December 24, 1987, management at the London warehouse issued a job
posting for promotion to the position of ShiPping/Receiving Clerk.
This posting indicated that applications had' to be received no
later than January'iS, 1988.
No one responded to the ~ob posting. As a result, management
was forced to continue its prior practice of filling the
'3'
Shipper/Receiver position with an employee drawn from the Warehouse
Worker 4 classification.
This situation continued until March 13, 1989. As of that
date, the grievor had recovered sufficiently from his injury to be
capable of returning to work with some restrictions. These
restrictions included a requirement that the grievor not lift over
15 pounds and a further requirement that he avoid repetitive
movement with his left shoulder. -The grievor applied for the
Shipping/Receiving Clefk position and, as the only applicant, he
was appointed to it.
Some modifications were made to the job in order to
accoramodate the grievor's restrictions. The job posting set forth
the duties and qual.ifications of this position as follows:
Duties: Receiving, reviewing, checking and processing
various forms and documents, preparing bills of lading,
completing reports and preparing and issuing orders for
assembly. Preparing and arranging returns of pallets and
products, .contacting carriers, stores or other individuals
regarding schedule changes etc. Responding to 'various
telephone inquiries, filing and other duties as assigned as
well as substituting for the Shipping Foreperson when
necessary.
Qualifications: Demonstrated knowledge of the
shipping/receiving function, preferably in a
warehouse/distribution environment, previous responsible
clerical experience which has included accurate attention to
detail. Legible handwriting and good communication and
interpersonal skiils are also required.
As there is'constant exposure to the elements as well as some
heavy liftinq candidates will require to pass a physical
examination.
As can be seen, the Shipping/Receiving Clerk job originally
Envisioned the performance of some heavy li. fting. To accommodate
the grievor, these duties were reassigned to a Warehouse Worker 4
located in the same~ office as the Shipping/Receiving Clerk.
When the grievor commenced his new duties, he undoubtedly
encountered some frustrations. Among these was a degree of
resentment from his predecessor in the position. This manifested
itself primarily in a refusal to give the grievor the training he
required. As a result, the grievor was forced to learn the job as
he went along, with assistance wherever possible from his Foreman,
Steve Schultz. Another frustration occurred when he ceased being
paid at the level of those in the Warehouse Worker 4
classification. It seems that pursuant to the collective
agreement, the grievor was maintained at the wage rate of his
former classification of WarehouSe Worker 4 for a period of 6
months; thereafter, however, his wage rate fell to that of a Clerk
3. Then,.to add to this frustration, when the grievor went away on
vacation in 1991, a Warehouse Worker 3 who was assigned to replace
him in the Shipping/Receivinq Clerk job wes paid at the Warehouse
Worker 4 level while doing so. Soon afterwards, on August 15,
1991, the grievor filed the grievance leading to the present
proceeding.
At the hearing, Mr. R. L. Stafford, the General Foreman of the
5
warehouse, explained the sequence of events that led to paying the
grievor's temporary replacement at the Warehouse Worker 4 level.
It seems that this replacement, a Warehouse Worker 3 by th~ name of
Mr. Walker, had been scheduled to fill in for the grievor a week
before the grievor went on vacation because he had been trained by
the grievor to perform his duties. At that time, it was
'anticipated that Mr. Walker would continue to receive comDensation
at the Warshouse Worker 3 level. However,. during the two-week
period of the grievor's vacation, two Warehouse Worker 4's went off .
on sick leave --one in the first week and the other in the second.
They had to be replaced by a Warehouse Worker 3 by the name of ~r.
Rundle.
The trouble was, Mr. Stafford said, .Mr. Rundle had less
seniority than Mr. Walker and the collective agreement provided
that persons in higher classifications be replaced by the most
senior lower-rated employees. Moreover, the collective agreement
further provided that an employee who relieved~ in a higher
classification was entitled to the wage rate of the higher
classification after two consecutive days in the position. Despite
this, it was impossible to switch Mr. Walker with Mr. Rundle
because only the former had been adequately trained to perform the
grievor's job.
As a result, Mr. Rundle remained in the Warehouse Worker 4
classification for the entire two week period and was paid at that
/
level. In order to avoid a grievance from Mr. Walker, Mr. Stafford
said, management decided that Mr. Walker would also have to be paid
at the Warehouse Worker 4 level. In short, M~. Stafford said, the
payment of Mr.. Walker at the Wareh6~se Worker 4 level was not in
any way rela~ed to a re-evaluation by management of the level of
work assigned to the position of Shipping/Receiving Clerk.
While the Union accepted Mr. Stafford's explanation of the
events preceding the filing of the grievance herein, this
explanation was not taken as resolving the broader issues raised in
this proceeding, ioe., the entire question of reclassification.
The .matter proceeded upon this footing,' with the Union leading
evidence and.argument to support claims for reclassification upon
both class standard and class usage theories,~with primary emphasis
upon the former. We will address the evidenc~ and submissions upon
each of these theories seriatim hereinbelow.
II. CLASS STANDARD ANALYSIS
.The LCBO and LLBO & Classification Guide set forth the
following chart to describe the positions falling within the scope
of the 'Clerk 3 classification:
EVALUATION CRITERIA - CL~RK GRaD~ 3
Summary of Responsibility Level
This level covers p~sitions ~erforming olerical tasks of
some complexity. The work requires a background
knowledge of regulations, statutes and Board operations.
Typical Duties
Duties may include creation, maintenance and processing
of files and records (i.e. breakage and claims forms,
establishment licensing files, receivals forms, personnel
files etc.). Other duties may include preparation of
standard factual reports or memoranda based on routine.
compilation of data. May operate office machines in
execution of duties. May handle telephone calls and
personal callers~ May also do a smaiI amount of typing.
Decision Making/Complexity
Initiative is needed in following up on errors and making
necessary corrections.. Limited judgment is applied in
selection and interpretation of data and in proposing
options within a framework of policy or practice.
Contacts
For the majority of positions, contact is limite~ to
staff in the work unit or to other LCBO/LLBO personnel.
Contacts outside LCBO/LLBO are usually on straightforward
and factual issues.
Supervision Given
In some cases, clerks at this level will oversee the work
of a small team - for intermittent·periods of time,
providing guidance when'needed.
Supervision Received
Work is performed under supervision. Instructions are
clearly delineated at the beginning of the assignment.
Because of general experience and knowledge of the work
environment, there is little need for detailed guidance
or instructions, work is reviewed only periodically for
adherence to established policy and procedure. In some
instances it is possible to only spot check completed
assignments.
Entrance Oualificatlons
Completion of two years secondary schooling or
equivalent. A minimum of-2 years of related clerical
experience.6Z
(i) Level of Responsibiliit¥
It was submitted on behalf of the grievor that .in virtually
every one of the above categories the grievor's position exceeded
the requirements for the Clerk 3 classification. As to the level
of responsibility, it was submitted that the grievor's tasks were
not of "some complexity" but were, in fact, "complex" because the
grievor had to take information from a number of different sources
and documents and place it on new documents that he then was
required to verify.
It was also submitted with respect to the grievor's level of
responsibility that his work required more than a "background
knowledge" of Board operations. Rather, it was submitted that the
grievor needed to have a detailed and intimate 'knowledge of the
operation of the warehouse~ inCluding product supply, inventory and
accounting.
It was submitted on behalf of' the LCBo, 'however, that the
'position of the. grievor did not involve a "substantial departure"
from the level of responsibility of a Clerk 3. The grievor, it was
submitted, had only.two primary responsibilities: .(1) receiving;
and (2) shipping. As to the receiving function, it was submitted
that all that the grievor was required to do was to compare the
orders recorded on receival schedules and dock sheets with what
actually came into the warehouse. If there were overages or
9
shortages, it was submitted, the grievor's duties were no more
complex than to note these' on the appropriate form.
As to shipping, it was submitted that the grievor's duties
merely involved matching pre-printed shipping requests by delivery
date and stor~ number. While this involved considerable
transferring of information from one document to another and
entering any add-ons that were in the grievor's files, these duties
were no more than of some complexity.
(ii) TyDical Duties
It was submitted on behalf of the grievor that while his
duties included the creation, maintenance and processing of files
and records, these files and records were not based upon "routine
compilation of data". The grievor, it was submitted, was not
supposed to take the information before him at face value but was
· required to CrosS-reference documents and verify this information.
It was submitted on behalf of the LCBO, however,, that the
grievor's duties solely involved transferring information and
preparation of reports based upon routine compilation of data. The
only point at which the gKievor exceeded this standard, it was
submitted, was in the preparation of the breakage form, which
involved the exercise of a degree of judgment. This, however, it
was submitted, was a minor part of the grievor's duties.
Decision Making/Complexity
With respect to the category of 'decision making and
complexity, it was stressed on behalf of the grievor that he was
required to exercise initiative in following up on errors,
verifying his own work and the work generated by others. These
decisions, it was sUbmitted, did not involve application of
"limited judgment" as *established in the standard, but rather
involved decisions t~at had no pre-determined guidelines.
It was submitted on behalf of the. LCBO, however, that in the
category of decision making and complexity, the position of the
grievor was well within the Clerk 3 classification. In the
performance of his. duties, it was submitted, the grievor did no
more than exercise the necessary initiative to follow-up on errors
and use limited judgment in .interpreting data selecting from among
pre-determined options.
(iv) Contacts
It was submitted on behalf of the grievor that this was the
category in which the position of the grievor clearly departed from
the Clerk 3 standard. It was ~i~uttbat the Clerk 3 standard
contemplated .limited contacts outside the LCBO/LLBO, with the
majority of contacts limited to staff within the work unit or other
LCBO/LLBO personnel.
11
The position of the grievor, it was submitted, required him to
take a major role. in representing the warehouse both within the
LCBO and outside the LCBO. He routinely was'required to deal with
not only his supervisor, Mr. Schultz, but also the front office of
the warehouse and the various stores constituting the customers of
the warehouse. He also was required to deal with the truck drivers
from outside~firms on a daily basis. Finally, the grievor was
required to be in contact on an ongoing basis with~the LCBO head
office regarding the verification of shipments, billings and
product control.
It was submitted that all of the above were not
straightforward and factual issues but rather involved issues
arising out of the shipment of damaged goods, discrepancies.' in
shipments~, overages and shortages. As to contact~with truckers, it
was pointed out that the grievor had to deal with the truckers to
co-ordinate new delivery dates if too much product was coming into
the warehouse at one time and might be involved in deciding which
supplier to contact to rearrange the delivery schedule. These
external contacts, it was submitted constituted a significant
aspect of the core duties of the grievor and constituted the
primary respect in which the position of the grievor was drawn out.
of the scope of the Clerk 3 standard.
It was submitted on behalf of the LCBO, however, that while
some of the grievor's contacts may have been external contacts
12
exceeding the range ordinarily e×pected.of a position at the Clerk
3 level, the majority of the contacts did not. It was submitted
that most of the grievor's contacts were with co-workers in his
office. There were fewer contacts with the LCBO stores and the
trucking companies, it was submitted, but even these were on a
straightforward and factual basis. For example, it was submitted,
the g~ievor's contacts with truckers were limited to assigning them
to a particular dock and finding out whether they would be late.
It was further submitted on behalf of the LCBO that the
category of "contacts" had to be considered in the entire scheme of
the classification guide. It was not, it was submitted, a
~ontrolling factor within this scheme.
(v) Supervision ~iven
It was submitted on behalf of the grievor that his position
required him to do more than oversee the work of a small team for
.intermittent periods of time. Rather, he was routinely required to
work with others and provide them with the information necessary to
do their job and then verify the information. This kind of
checking on an ongoing basis, e.g., in directing a recount if the
total shipment on a skid did not match with the documentation, was
said to constitute the giving of supervision.
13
It Was submitted on behalf of the LCBO, however, that the fact
that the grievor operated in a functionally inter-dependent
atmosphere with other employees such 'as checkers did not involve
him in exercising ongoin~ supervisory functions. Rather than
overseeing these people, it was submitted, the grievor was'involved
in a co-operative effort with them.
(vi) Supervision Received
It was submitted on behalf of the gri~vor that ha did not
receive any clearly delineated instructions at the beginning of his
assignment and his work was not reviewed periodically for adherence
to established policy and procedure, as required by the Clerk 3
standard. It was stressed'that when the grieyor started out in his
position he was left very much on his own to learn th~ job for
himself, primarily ~because of the refusal of his predecessor to
offer him any training. Moreover, it Was submitted that the
grievor's supervisor, Mr. Schultz, did not periodically review his
work for adherence to established policy or procedure but that to
a significant extent, the grievor was left to work on his own.
It was submitted on behalf of the LCBO that while the grievor
was left to work'very much on his own,'the level of initiative that
he was required to exercise in his day-to-day duties was
insufficient to lift his position beyond the confines of the Clerk
3 standard.
14
CONCLUSION
Having considered the evidence and submissions of the parties
pertaining to the above categories of the classification guide, we
conclude that while the requirements of the position of the grievor
may slightly exceed the limits of the Clerk 3 classification in the
areas of "contacts" and "supervision received" they fall well
within the classification of Clerk 3 in all of the other
categories. These latter categories, e.g., level of
responsibility, typical duties, decision making/complexity,
constitute major criteria in the classification system. They must
be given considerable weight in determining the appropriateness of~
any particular classification. .
In light of this, it seems to us that overall, the position of
the grievor'fits within the classification of Clerk 3. It may be,
as indicated, by counsel for the LCBO at one point in his
presentation, a strong Clerk 3, but that does not support a
determination of improper classification that would authorize this
panel to take the next step and examine the question of
reclassification. Accordingly, unless the grievor can succeed upon
the issue of class usage, his grievance cannot succeed.
III. CLASS USAGE ANALYSIS
The case for the grievor upon'a class usage analgsis was based
upon evidence that, it was submitted, showed' that other empl.oyees
with whom the. grievor was most closely associated were Warehouse
Worker 4's whose duties were no. greater than those of the grievor
in terms.of complexity, level of responsibility and degree of
supervision. When this evidence was combined'with the fact that
the Shipper/Receiver position Had also been classified in the
Warehouse Worker 4 classification until 1987, there was a strong
inference to be drawn that on a class usage analysis there was no
basis for differentiating the grievor's position from the others.
In.line with this, Tit was further submitted that it would be
inappropriate to differentiate between the other positions and the
-grievor's position on the basis of the more physical nature of the
former. While it was true, it was submitted, that the grievor was
responsible for paperwork functions while the other employees were
involved in equivalent physical duties, account had to be taken of
the fact that to accommodate the grievor's disability, certain'
heavy lifting duties were removed from the Shipper/Receiver Clerk
position and reassigned to a Warehouse Worker 4 in the same office
as the grievor.
16
It was submitted on behalf of the LCBO, however, that
regardless of the accommodation that was made for the grievor, the
core duties of the position of Shipper/Receiver Clerk were clerical
in nature. With respect to this, we were referred to the job
posting that was reProduced in part near the beginning of this
award. In contrast, it was submitted, the jobs of the Warehouse
Worker 4's 'to whom the grievor sought to compare himself required
them to perform physical work such as counting unloaded product,
sorting private stock, sorting supplies'for stores, and assembling
inter-store transfers, for about one half of their time. In light
of this, it was submitted, the fact that the other half of their
time might have involved processing paperwork similar to that of
the grievor did not constitute a sufficient degree of overlap to
demonstrate that the LCBO had deviated from the Warehouse Worker 4
class standard to Such an extent as to permit the grievor to claim
it. In this regard, we were referred to Re Carvelho and Ministry
of the Attornev General (1986), G.S.B. #1484/84' , at 18 - 20
(Roberts); Re McTamney and LLBO (1987), G.S.B. #1553/85, at 2 - 3
(Draper); and Re Acton and LLBO (1984), G.S.B. #456/83, at 15 - 16
(Swan) .
Upon due consideration of these submissions, we conclude that
the grievor cannot succeed in claiming the Warehouse Worker 4
classification on the basis of a class usage analysis. There was
an insufficient degree of overlap between the grievor's duties and
those of the Warehouse Worker 4's whom he sought to use as his
comparators. In light of this' conclusion and the previous
conclusion that, on a class standard analysis, the position of the
grievor was properly classified at the Clerk 3 level, the grievance
cannot succeed.
Tha grievance is dismissed.
DATED at London, Ontario, this 7th day of April,
1994.
R.~~s, Vice-Chairperson
E. Seymour, Union Member
F. Col~, Employe. Member