HomeMy WebLinkAbout1991-1940.Bowen et al.92-10-21. ONTARtO EMPLOYES DE LA COURONNE
CROWN EMPL 0 YEE$ DE L ~ON TA RIO
GRIEVANCE COMMISSION DE
SETTLEMENT 'R GLEMENT
· BOARD DES GRIEFS
180 DUNOAS STI~EET WEST, SUITE 2100; 'TORONTO, ·ONTARIO. M5(~ 1Z8 TELEPHOtVE/TELEP~OhlE. (4 ;6'1 .126- $388
'~80, RUE OUNDA,~ OUEST, 8uFtEAU 2100, TORONTO {ONTARIO), MSG ~Z8 FACSI.f.41LE/T~L~COP~E .' (4 161 ,.126- 1.396
1940/91, 1957/91, 1958/91
IN THE~ MATTER OF AN ;GtBITRATION
Under
THE CROWN. EMPLOYEES COLLECTIVE BARGZ%INING :%CT ~
Before
THE GRIEVANCE SETTLEMENT BO~LRD
BETWEEN
0PSEU (Bowen. et al)
Grievor
- a~d -
The Crown in Right of Ontario
(Ministry of Health)
· Employer
BEFORE: 'W. Low Vice-Chairperson
M. Vorster Member
F. Collict Member
FOR THE N. Coleman
UNION Counsel
Gowling, Strathy & Henderson
Barristers & Solicitors
FOR THE ,B', Christen
EMPLOYER Counsel
Winkler, Fili°n & Wakely
Barristers & Solicitors
HEARING April 16, 1992
August 28, 1992.
DECISION
There are seven Grievors involved in this proceeding.
Messrs. Bowen, Iechnich, Lekhram, Smith', Henry and Gould bring
identical grievances. They are classified as Clerk 2, Supply and
all griege that they are improperly classified and seek ~to'be
reclassified as Clerk 3, Supply. The seventh Grievor, Mr. Hussain,
· is currently classified as Clerk 2, Supply holding the position of
shipping assistant~ Mr. H~ssain grieves that he is improperly
classified and seeks a. Berry order.
The position taken o~ behalf of the first six Grievors,
which we will refer to hereinafter as the Bowen Group, ~is that
although the class standard d6es properly set out. the nature of
their duties and functions, they are doing substantially the same
work as another employee, Mr. Cecil Gangaram, the biologicals
clerk, who is classified as Clerk 3, Supply. The argument is that
by reason of usage these .Grievors should be accorded 'the same
classification as Mr. Gangaram. The threshold test which a Grievor
must meet on a usage argument has been variously described by this~
Board from time to time as the doing cf "virtually identical,, jobs
or "substantially Similar" jobs. Whichever language is used, 'and
assuming, but without deciding that there is some difference of
degree as between the two phrases, we must still take it that the
threshold test require~ that the core duties of the two jobs be the
same.
The evidence on.behalf of the Bowen Group was.given by
Mr. Lakhram whose evidence is to be taken as representative of and
binding on all six Grievors. Mr. Lakhram's evidence was that the
position specification for warehouse clerk is generally an accurate
statement of the duties of the position. These duties are as
follows:
"1. Processes orders in accordance with established
p~ocedures by:
90% - checking requisitions and picking slips to ensure.'
that they agree with catalogue numbers,
descriptions, quantities, lot numbers 'etc.;
- processing.orders according to quantity required;
question and bring to the- attention of the
supervisor quantities that appear unreasonable;
- assembling component parts of orders;
- determining suitable packaging methods' to be used
according to physical.makeup of the order, volume,
weight, etc. in accordance with established
procedures;
- packaging order to appropriate specifications ~o
ensure safe and secure delivery.
- keying in approDriate data to generate packing slip
and label;
- transferring completed orders to shipping area
designated as hold;
- affixing packing slip and label to order.
2, participates in inventory and warehouse maintenance
by:
5% i- maintaining housekeeping of inventory locations in
order to avoid damage to. stock and to promote
efficient order processing;
- keeping warehouse in a clean hazard-free state at
all times (e.g. aisles clear, bulk items, stacked
and secured safely).
3. Performs other related duties:
5% - carrying out minor preventative maintenance on
equipment;
- assisting in inventory counts;
- providing back-up support in receiving area as
required;
- accessing computer to view product descriPtion and
inVentory status occasionally;
- informing, supervisor of expired goods immediately
and remove from shelf;
- as assigned;
- back up/assist Biologicals Clerk during absences
and vacation (7327-32)."
In addition, when the biologicals clerk does his weekly
inventory and a discrepancy is found, one of the Bowen Group is
asked to do a second or a third~ count of the affected item or
items. This process takes that person five tO ten minutes per
week. AS well, it was the evidence of Mr. Lakhram that Prior to
the pre-hearing in this~grievance, the warehouse clerks went into
the~walk-in fridge, which is the responsibility of the biologicals
clerk, to pick biologicals and vaccines ~when these items appeared
on the warehoUse clerk's picking list. On the whole, however, the
4
warehouse, clerks operate in the discrete warehouse s~ocking
shelves, disc~rding outdated items, filling orders and conveying
the qrders to the shipping, area. As well, the warehouse clerks are
asked by the biologicals*clerk to double check for the right item
and 3ot number on orders that are filled by the biologicals clerk.
The Grievors also called the evidence of Mr. Cecil
Gang~.ram, the biologicals clerk, who is classified as ~lerk 3,
Supply. Mr. Gangaram's duties and tasks are set" out in his
posi;ion specification:
"1) Expedites all orders for biologicals and vaccines
by:
- ensuring that all biologicals and vaccines, are
carefully checked against transfer slips prior
to acceptance to inventory.
- ensUring that all stock is safely stored under
optimum conditions of temperature, humidity
and cleanliness.
75% - sorting all biologicals according Go type, lot
number and expiry .date. Bringing outdated
materials to the attention of the Assistant
Manager, Operations.
- filling, packing, signing and labelling all
orders according to computer generated picking
slips.
- adjusting or changing orders on the
instructions of the Assistant Manager,
Operations and in .cooperation with customer
service.
- manually processing prefills and ensuring that'
paperwork is later generated. in customer
service.
sealing, weighing, stamping all orders in.
readiness for daily carrier pick-up .or in
readiness for single shipment of urgently
required biologicals such as rabies vaccine
Which. normally would be sent by courier,
police or BPX. '
2) Performs other.duties such as:
- .ensuring-that recording clocks and charts for
refrigerated storage areas and the main
Warehouse are functional.
15% - weekly physical inventory' count of all · . ~biologicals.
- advise Assistant Manager, Operations of low
stock levels.
- back-up position 05-7327-35.
3) Performs other duties such as:
- assisting in all inventory taking.
10% - assisting in picking, packing and shipping, of
general inventory items if workload or short
staff requires it.
- as assigne~.
Incumbent is required to wear personal protective
clothing, coat and safety shoes or boots."
Mr. Gangaram has sole 'responsibility for the walk in
fridge and the processing of orders for vaccines and biologicals.
He prioritizes the orders, is responsible for dispatching all of
the vaccines including oral polio, which is ~kept frozen. He
estimates the weekly use of polio as there'is a limited'life span.
of the oral polio vaccine once thawed. He is 'responsible for
expiry dates and the labelling thereof in appropria'te fashion on
6
packaging, does a weekly ·inventory, and he backs up for the
supervisor, Mr. Casey, when he is away. .When not .otherwise
occupied, Mr~ Gangaram helps to pick orders in 'the warehouse but
does not perform any of the secondary duties performed by the
warehouse clerks, such as carrying out of warehouse housekeeping,
preventative maintenance or moving of heavy loads.
Mr. Gangaram's evidence as to the picking of vaccines by
warehouse clerks was that when they have a vaccine on one of their
lists, which is a rare occasion, they come to him and he picks the
vaccines from the walk in fridge for them. There had been a time
w~en certain lab supplies were kept in the walk in fridge which ~he
warehouse clerks were at liberty to pick therefrom, but that
practice was discontinued. In summary, Mr. Gangaram's job is to
bear the sole responsibility for the walk in fridge which houses
the vaccines and biologicals. His responsibility is for· picking
and packing vaccines, weekly inventory, expiries, monitoring to a
limited extent the environmental gauges and in general,· dealing
with approximately $25 million worth of 'temperature and t~ime
sensitive products on a permanent on-going basis.
The evidence~of M~. Gangaram and Of Mr. Lakhram is at
variance in one respect, and that is in relation to the picking of
vaccines by the warehouse clerks. Mr. Gan~aram's evidence is that
there has .never been a time since 1984 when he began his· work as
the biologicats clerk, when the warehouse clerks were at liberty'to
go into the walk in fridge to pick vaccines. They were, however,
picking lab supplies which were refrigerated in'the walk in fridge.
We' prefer the' evidence of Mr. Gangaram to that of Mr. Lakhram in
this respect.
Based on the evidence received, we are of the view that
the Bowen Group of Grievors has not demonstrated that their core
duties are the same as those of the bi01ogical~ clerk or, to put it
in other language., that their job is substantially similar to that
of the biologicals clerk. The nature and degree of responsibility
inherent in' the biologicals~ clerk's position are missing in the
warehouse clerk's position. We do not consider that the spending
of approximately 10 minutes per week in doing a double count for
the biologicals clerk in his weekly inventory, or the picking of
lab supplies 'or even the occasional vaccine would'be sufficient to
close the gap between the levels or type of responsibility as
between the biologicals clerk'and the warehouse clerk. While both
the biologicals clerk and the warehouse clerk pick and pack, we
consider that the similarity is thus limited. The grievances of
~he Bowen Group must therefore be dismissed~
Mr. Hussain's grievance rests chiefly on the language
contained in the first paragraph of the preamble to th~ Clerk
Supply series, which provides as follows:
"These classes cover the positions of employees who
perform a variety of clerical, manual, administrative
repair or purchasing ~functions that are common to
stockkeeping operations in the ProVincial Government
Service. if any employee specializes in only one of the
many tasks involved in the operation of a stockroom, the
position should be classified in another series more
appropriate to the type of work. For example, positions
concerned entirely with the clerical recording of
transactions should be ~allocated to the Clerk, General
series. Positions in which purchasing is the main
function should not be classified in this.series."
Mr. Hussain's evidence discloses that:
- he receives packing slips prodUced by one of the
clerks in the office;
- he places the packing slips with the orders and
moves the stock to the appropriate zone within the
shipping area;
- he assists truckers to load their trucks;
- he en'sures that all orders on the.manifest prepared
by employees Who. prepared the packing slips, have
been picked up by the trucker;~
- he performs no receiving activities;
- he uses a fork lift or manual lift to move stock;'
and
- he performs picking and packing duties less than
10% of the time.
9
It is.agreed that the position specification sets out
with reasonable accuracy the duties'of Mr. ~Hussain in his position
as shipping assistant, except that the percentages of time devoted
to each~ duty are different from those set out in the position
specification.- The employer and the union do not disagree,
however, with the percentages of time allotted to various duties
and the issue is essentially whether Mr. Hussain is misclassified
as Clerk 2, Supply, the class standard for which is reproduced
herein:
"This class covers the positions of employees performing
a variety of routine manual and clerical duties in
stockrooms. Under general supervision, they carry out a
number of the various tasks connected with the receiving,
Storage, handling and distribution of a wide variety of
equipment and .supplies. .They check incoming shipments
against weigh bills for storage and damage in transit;
check .quantities against packing slips and purchase
orders; contact suppliers regarding short shipments,
delays, back orders etc.; place items on shelves or bins,
adjusting bin cards to keep perpetual inventory. They
also maintain stock ledgers or cards showing the receipt
and issue of all articles including the value.of items on
hand. They assemble orders for authorized requisitions;
tag and address shipments; contact the conveyor and
comp%ete necessary records for the transaction.
This is a terminal class for employees who perform in a
supply area, simple'clerical duties in conjunction w'ith ~
tasks requiring the frequent application of.considerable
physical effort or the operation of mechanical
equipment."
On the face of it, the duties and responsibilities set
out in the position specification do fit quite neatly within the
class definition of Clerk 2, Supply. That would be the end of the
question, but for this sentence in the preamble:
"If any employee specializes in only one of the many
tasks involved in the operation of a stockroom, the
position should be classified in ahother series more
appropriate to the type of work."
This language raises the issue of what constitutes a task. A task
may be something as simple and finite as the turning of a single
screw in an assembly line. It may be as complex as the perfor~ance
of a heart transplant. The drafters of the preamble have used
"clerical recording of transactions" and perhaps "purchasing" as
examples, activities which are sufficiently varied and complex as
to constitute what might be considered a cluster of tasks'
comprising a function.
The issue has been dealt with by this. Board in two
earlier cases to which we have been referred. In Marshall (73'3/86)
Arbitrator Verity noted that:
"It appears that the Clerk Supply series-is designed to
apply to stockroom attendants and does not contemplate
the special position of shipper-receiver working alone in
a separate area with responsibility to maintain security,
to receive and ship a complex range Of goods, equipment
and supplies.' Simply stated, the Grievor does not
function as a~stockkeeper or stockman."
Finding t'hat the Grievor was not a stockman but shipper-receiver,
the Board in Marshall made a Berry order. In Myer/Pe~rin (751/90),
a decision~of Arbitrator Keller, the Grievor Myer was held to be a
receiver-shipper, similar to Marshall and following Marshall, the
Board in that case also made a Berry order.
·
Counsel for the en~ployer has made a very forceful and
able argument that the MarShall and M_M~ cases are distinguishable
on their facts since in those cases the Grievors were performing
complex shipping and receiving duties which far exceeded the
shipping tasks performed by Mr. Hussain. It was also argued that
the Marshall case was wrongly decided as shipping-receiving is.a
function, as is shipping alone, and not a-"task"'
With respect, we cannot accede to these arguments, while
it may be that shipping alone is a more restricted occupation than
'shipper-receiver, the more'restricted nature of the work would tend
to support the proposition that shipping is a more specialized task
than shipping-receiving. In Saying this, however, we do not
suggest that the role of shipper bears~more responsibility or is a
more. onerous task than shipper-receiver,, and indeed quite the
opposite may be the case as shipper-receiver would imply a wider
and more complex range of responsibilities than shipping alone.
With respect to the employer's second position,~-namely
that Marshall and Myer were inco~rectl~ decided, we cannot agree
with this contention given the language of the preamble to the
Clerk Supply series. If clerical recording Can be construed as a
~task, and ~ fortiori, if purchasing can be construed as a task, it
is our view that shipping can also be so construed, particularly
given the evidence before us as to the limited range of actual
12
duties carried out by Mr. Hussain. Accordingly, an order will go
that the employer find or create a classification for Mr. Hussain
which accurately reflects his job, within 90 days of this decision
being released. Retroact~vlty will be to 20 days prior to the
filing of Mr. Hussain's grievance in the event that'any retroactive
compensation is applicable. This Panel will remain seized.to deal
With any problems that may arise with the implementation of this
award.
DATED this 21st day of October, 1992.
W a i r pe-'~-~o n
M. VORSTER Member