Loading...
HomeMy WebLinkAbout1992-1204.Taylor.94-06-28 \.~' ( ( I'\' ONTARIO EMPLOYES DE LA COURONNE CROWN EMPLOYEES DE L'ONTARIO 1111 GRIEVANCE COMMISSION DE . SETTLEMENT REGlEMENT BOARD DES GRIEFS 180 DUNDAS STREET WEST SUITE 2100 TORONTO, ONTARIO M5G lZ8 TELEPHONE/TELEPHONE (416) 326"-1388 180, RUE DUNDAS OUEST BUREAU 2100 TORONTO (ONTARIO) M5G lZ8 FACSIMILE /TELECOPfE (416) 326-1396 1204/92 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Taylor) Grievor - and - The Crown in Right of ontario (Ministry of Tourism & Recreation) Employer BEFORE: W. Kaplan Vice-Chairperson M Lyons Member M O'Toole Member FOR THE M. MacKinnon UNION Counsel Ryder, whitaker, Wright Barristers & Solicitors FOR THE P Toop EMPLOYER Staff Relations Officer Management Board Secretariat HEARING May 4, 1993 May 20, 30, 1994 / \ ~ \ ~': ( " 2 Introduction By a grievance dated May 1, 1992, Del Taylor, a Historical Interpreter employed by the Ministry of Tourism and Recreation at Sainte-Marie among the Hurons (hereafter "Sainte-Marie"), grieves that he was improperly classified The grievance seeks, by way of remedy, reclassification to a position more appropriate to the grievor's 1 skills and responsibilities The , case proceeded to a hearing on May 4, 1993 At that time counsel for the employer took the position that the Board was without jurisdiction to hear the case as the grievance related to classification and the grievor, as an unclassified employee, Was not entitled to file a classification grievance "- For its part, the union argued that the case was properly before the Board, and it relied on Article 3 22 1 of the Collective Agreement which states "The rate of the equivalent civil service classification shall apply If the re is no equivalent classification, the rate shall be set by the ministry and the ( Union shall have the right to negotiate the rate during the appropriate \ salary negotiations" In brief, the union submitted that the evidence would f establish that the grievor was, in fact, performing the duties of an "Artisan 3," and so was entitled under Article 3 22 1 of the Collective Agreement to be paid at that rate as that was the "equivalent civil service classification" The employer took the position that the grievor was not performing the functions of an Artisan 3, and was being properly compensated as a Historical Interpreter, the wage rate of which had been I agreed upon by the parties in negotiations and incorporated into the Collective Agreement. After considering this preliminary matter, the Board ruled that the grievance, effectively alleging a violation of Article 3 22 1, could proceed - - i " I I I, " 3 and evidence and argument were heard with respect to the merits of the matter in dispute ( The Umon's Case Evidence of Del Taylor Mr Taylor testified He has worked as a Historical Interpreter at Sainte-Marie since May 1986 on a series of seasonal contracts Usually, the \ grievor works between April and November, although he is occasionally employed in January, F,ebruary and March The grievor testified generally about Samte-Mane, and told the Board that it is a historic site which recreates 'the life of a Jesuit settlement first established in 1639 The focus of activities at Sainte-Marie is providing visitors, including members of the public and school tours, with programming that demonstrates life at Sainte-Marie as seen in historical context. The grievor testified that his exact duties change with the seasons I, ) "Sejour a Sainte-Marie" involves hands-on interactive activities with , I period-costumed historical interpreters "Sur la Riviere" is a canoe program which introduces students to 17th century travel in historic 26 foot canoes. School tours last from one to three days. There are also numerous tours and programs for members of the I public w~o visit the site The exact content of each tour depends to some extent on the age and interests of the group In addition, Historic;:al Interpreters such as the grievor staff various stations around the site and provide members of the public and tour groups with information and demonstrations with respect to those stations '\ -" ( ( .1' 4 Each spnng the grievor attends a staff orientation He testified that one of the purposes of this orientation is to tram Historical Interpreters and to r provide them with the information they need to perform their duties Historical Interpreters are also trained in giving tours and performing demonstrations Among his various duties, the grievor demonstrates carpentry, woodworking, cooking, blacksmithing, fire-starting, clothing making, working with leather, clay work, basket making, and buildmg of native shelters including wigwams According to the grievor, demonstrations of this kind are critical to the success of the program as these demonstrations attract and retain the attention of visitors During all of his demonstrations, the grievor, who is an Indian, told the Board that he is able, when giving these~tours, to share the legends of his people, and to impart information he has gathered as a result of his own research The grievor's particular speciality is working with birch-bark, and in demonstrating the use of birch-bark, as in the other demonsfrations which he performs, the grievor seeks to illustrate how these crafts were I performed many years ago The grievor's background and training as an artist, as well as his experience in working with children, assists him in conducting tours and performing demonstrations The grievor testified in some detail about a number of specific demonstrations which he performs. One such demonstration is the building of shelters He told the Board that the proper collection of building materials is very important to building shelters, and this involves going into the -forest to identify and gather materials Birch-bark must be properly harvested and prepared In performing these tasks the grievor relies on information he has obtained from his people, as well as on his own historical research ''j'I I ( 5 { '" In another example, the grievor testified that he has demonstrated the creation of a birch-bark canoe This involved the collecting, gathering and processing of materials in northern Ontario Cedar must be harvested, split, and cut to size A frame must be bUilt and gum strained to remove impurities Birch-bark must also be harvested and applied to the frame The grievor obtained this skill while working at Sainte-Marie, and he testified that he is perhaps one of twenty-five persons in North America who is skilled in the building of birch~bark canoes A copy of the grievor's position specification was introduced into evidence The grievor testified that while it was generally accurate some of the listed duties were not performed, and some duties which were performed were not listed The grievor testified that none of the other Historical Interpreters has his range of First Nation skills, although all of them could demonstrate particular skills such as creating clay pots Some of the other Historical Interpreters work in the French area of the site, performing tasks such as blacksmithing and carpentry 1 The grievor has worked in these areas, and has performed demonstrations illustrating these skills He is of the view, however, that these demonstrations do not require the same ( degree of skill and experience as is required for the demonstration of some of his native crafts The grievor has trained a number of the other Historical Interpreters in the demonstration of various native crafts such as basket weaving, clay pot and pipe making, moccasin making and bow and arrow construction In addition to various Historical Interpreter positions, there are also a number of Artisan positions located at the site The grievor testified that one of the Artisans is a seamstress who manufactures period clothing and ( " ! \ ( \ 6 Il- I I There is also a Carpenter Artisan position The grievor is of the costumes. view that his work is at the same skill level as both of these Artisan positions He has had a number of discussions with the employer about this !.. matte r On March 19, 1992, a meeting of the local Employee Relations Committee was held The grievor did not attend this meeting, although he subsequently received a copy of the mmutes These minutes were introduced into evidence, the salient portion of which rea_ds ( RECLASSIFICATION OF CORE SEASONALS TO ARTISANS J UNION POSITION This would more clearly reflect the duties of the position ) SOLUTION Immediately take steps to reexamine the classification of core seasonals and advise staff of this RESOLUTION Management and staff agree that the concept of making core seasonals into artisans is reasonable and will be discussed There are budget implications and job rewrites will take time however there is the possibility of phasing in the conversion of core seasonal positions into artisan positions which more truly represent their job duties This process will start with one conversion before May 1 6 if at all possible and will continue in the fall When the grievor read these minutes he was of the view that it was his position which was being referred to He testified that he is known )as a core seasonal i ) Over his years at Sainte-Marie the grievor's duties and responsibilities have remained fairly constant. It should be pointed out, for reasons that will be explained later in this award, that for a period of time the grievor was not directly employed by the Ministry Instead, he was employed by the ... I 7 '" Huronia Educational Foundation Suffice it to say that the parties later agreed that the grievor, and other similarly situated employees, would be credited with Ministry seniority for the periods employed by the Huronia \ Educational Foundation '\ Cross-Examination of Mr. Taylor Mr Taylor was asked a number of questions of cross-examination His work i- history was reviewed, and the evidence establishes that the grievor first began to work with the Ministry on May 5, 1986, and held a number of ( seasonal contracts until January 27, 1989 On January 30, 1989, the grievor began what turned out to be a series of contracts with the Huronia Educational Foundation, alJld he remained employed by this employer off and on until June 21, 1991 The grievor's next Ministry contract began on September 23, 1991 and ran until December 5, 19,91 The next contract was for the period January 13, 1992 to March 25, 1992 The grievor was then employed from April 27, 1992 until November 27, 1992 When the instant grievance was filed on May 1, 1992, the grievor had only been employed for several days The grievor was asked when exactly he built a canoe for Sainte-Marie, and he testified that he did so in 1987 or 1988 The grievor agreed that his evidence about c~noe building related to this one occasion although he did, from time to time, also conduct canoe repairs Insofar as this one occasion \ was concerned, the grievor and at least one other employee were involved in the" building of a canoe, and it was built subject to another person's direction and design The grievor agreed that this was a special project and that prior to becoming involved with it he did ,not have canoe-building skills It shbuld be noted that the grievor has since established an I I ,. I i '" 8 independent canoe-building business The grievor also agreed that prior to beginning work at Sainte-Marie he had no formal training in carpentry, basket making and fire-starting, among other skills He testified that while training is now provided to Historical Interpreters during orientation, it was not provided when he first began work The grievor agreed that he has no formal training in blacksmithing or carpentry He has no formal training in native clothing making, but he has been making native clothes since he was young The gnevor was asked if he ever produced anything in writing with respect to his skills, and he testified about a research paper he wrote dealing with medicinal herbs and plants The grievor's paper described different diseases and different plants that were available to be used in treatment The paper was illustrated and had a conclusion The grievor believes that he can assess the degree of skill and knowledge \ required of the Artisans employed at the site because he himself is artistic and is highly skilled in his own particular area Re-examination of Mr. Taylor In re-examination, the grievor testified t,hat to the best of his knowledge the Artisans employed at the site were not formally trained While the grievor could not have built a birch-bark canoe before being employed at Sainte-Marie, he testified that he could perform a great many other native crafts ----- 't, ( J 9 " The Employer's Case Evidence of Pierre LeFaive Mr LeFaive testified He is the Manager of Sainte-Marie and has occupied that position since January 1991 Over the years, he has been employed in various capacities at the site, and for a time occupied a Historical Interpreter position Mr LeFaive testified that the job he performed was, by and large, the same job performed by the grievor As part of his duties and responsibilities, Mr LeFaive drafted the grievor's position / specification, and he testified that this specification accurately described the Historical Interpreter position This specification was drafted based on Mr LeFaive's understanding of the demands of the position According to - that understanding, the job of a Historical Interpreter was different from that of an Artisan He told the Board that over the past several years Sainte-Marie has begun to develop an Artisan program The trade carpenters were reclassified first. These Artisans perform period carpentry work in costume using historically appropriate methods and equipment. There is also an Agricultural Artisan and a Costume Artisan Mr LeFaive told the Board that in establishing Artisan positions, he looks at whether the job beihg performed relates to a specific trade or skill He then attempts to assess the level of skill required, and the greater lthe skill ~ required the more likely the position will receive an Artisan designation Approximately forty-five Historical Interpreters are employed at the site ) ) Mr LeFaive testified generally about the differences between student and ) seasonal interpreters, including differentials in rates of pay and duration and numbers of contracts Suffice' it to say that the grievor is a seasonal interpreter of some seniority who is at the top pay level in the Historical I Interpreter ca~egory He is referred to as a core seasonal ,I "I \ ~, 10 - ( Because of his own background as an Interpreter, and because of his general supervisory relationship over Historical Interpreters, Mr LeFaive is very familiar with the work of a Historical Interpreter In his view, the job of i Historical Interpreter is not comparable to any of the Artisan positions The Historical Interpreter position relates to the communication of , I , \ information, and Mr LeFaive is of the view that in performing this task, the I grievor did the same job as all of the other Historical Interpreters. Introduced into evidence was a copy of Sainte-Marie's Operations Manual This Manual details the requirements of the Historical Interpreter position, beginning with a definition of the position Historical Interpretation is a process by which information about the people, places and ) environments/landscapes and events of the past are presented to the public A variety of methods of presentation may be employed At Sainte-Marie among the Hurons, interpretation is the process of facilitating an understanding of the circumstances, events, human interaction and causes and effects of the story of Sainte-Marie among the Hurons through the involvement of one or more senses Sainte-Marie interpreters give an objectIve presentation of factual historical information and lifestyles of the Wendat and French, as well as French/Wendat perspectives on issues such as spirituality culture and civilization. An awareness of Traditional Wendat perspective, French Jesuit perspective, Christian Wendat perspective and contemporary perspective is critical in understanding and appreciating the story of Sainte-Marie among the Hurons \ During the interpretation process, interpreters aim to address and sensitize themselves to the physical, social/ emotional, intellectual and spiritual needs of the '," i , , j~ visitor "- APPROACH TO EDUCATION Mission Sainte-Marie among the Hurons interpretive story focuses on the coming together of two different cultures and the results of their contact. In relating this story, our approach is a humanistic one on the people who experienced this 'traumatic series of events Our mission is provide the vehicle and catalyst for gaining a better! understanding of these two cultures as well as the impact of their contact. This mission will be directed to the preschool, primary, junior, intermediate, senior and post-high school students by ensuring all programs address their developmental needs, physical, emotional and intellectual are curriculum-related, pertinent to their field of study and are worthy of creditation These programs will be of a high quality, current to the changing approaches in education and relevant to the story of Sainte-Marie among the Hurons I Philosophy ( People learn best by doing We aim to provide affective learning through unique, experiential programs that enhance and enrich classroom \ learning The involvement of students in programs that meet their developmental needs will assure success, therefore enhancing their feelings of self-worth ( ( We believe that students should b~ active participants in not only the function of an activity, but also in the teaching/learning process Students are a resource The Operations Manual goes on, again in some detail, to set out the different functions of the Historical Interpreter position, the hours worked and the I different core section~ to which the Historical I,nterpreters are assigned - ------ J. coi I ( \ ;:, 12 On page 65 a summary of the responsibilities of the Historical Interpreter is provided The previous job descriptions are designed to identify the priority responsibilities for each interpretive position Interpretation to the visitor, which involves the visitor and is safety oriented is the primary objective of the interpreter Projects or other site activities, whether they be interpretive or operational (rotations, rehearsal, closing, etc) are second to visitor recognition and interpretation In addition to the responsibilities that are position specific, the interpretive staff is required to work co-operatively with each other, the Assistant Curator and the Interpretive Staff Supervisors to prepare and maintain the historic site and modern facilities for the benefit of visitors and the protection and maintenance of Sainte-Marie's collection The following responsibilities are inherent to all interpretive positions and are to be performed collectively " ! - attendance at morning announcements - preparation of the historic site and modern facility for daily visitation This includes garbage pickup, opening, sweeping and maintenance and inventory of collections as requested by the Assistpnt Curator and Interpretive Staff Supervisors - interpretation to all visitors - wearing costumes and uniforms to established standards to ensure that consistency and appropriate appearance are maintained - preparation at the end of the day for the next day's I operation - the closing of the historic site and modern facility at the end of the day - communicate effectively within interpretive sections and with Supervisors to establish program and developmental needs and to ensure smooth operations \.~ , ( \ 13 ,~> - maintain clean and organized common lunch and change rooms I I The Operations Manual is provided to all employees, and it also sets out a protocol for the training, of newly hired Historical Interpreters In general, Historical Interpreters rotate through a number of different core sections One day a Historical Interpreter would interpret at a particular place on the site, the next day, he or she might lead an educational tour The focus of work depends to some extent on the season. In the fall, Historical Interpreters, for example, tend to spend most of their time giving educational tours Each spring a week-long orientation session is held for new and returning staff According to Mr LeFaive, a newly hired Historical Interpreter can, in I \ this orientation session, be given all the training required for the performance of the position While employees receive some supplemental training following the conclusion of the orientation session, that session "- serves to provide them with the basics necessary to perform the job For example, employees are taught the rudiments of moccasin making in the orientation session The objective of this training is for the Historical Interpreter to be able to make and demonstrate the making of a moccasin by the end of the week. In another example, Historical Interpreters are taught about the blacksmith shop, and instructed in how to make and demonstrate the makmg of a square nail Mr LeFaive testified that this training takes approximately thirty minutes Students and visitors to the blacksmith shop learn how to make nails, and as part of the program, may make their own nails. In yet another example, Historical Interpreters quickly learn how to make cornbread over I ":"! i { 14 ~, 0 an open hearth, and how to demonstrate that activity to visitors Interpreters learn how to make and demonstrate-the making of a wooden spoons and clay pots, to weave baskets and to sew and braid and so on Mr LeFaive told the Boar)d that new employees are not required to possess any particular skills in these areas as a condition of being hired J Mr LeFaive also told the Board that the grievor has never been required, as part of his Historical Interpreter position, to build a canoe Instead, what happenjed was that in 1988 the grievor was given the opportunity to work alongside an Artisan who was hired by Sainte-Marie to build a twenty-five foot birch-bark canoe The Artisan, the grievor and a manual labourer spent approximately 10 days gathering the necessary materials They then built the canoe over a four week period as a demonstration to the public Since that time, the grievor has been asked to assist with some cosmetic repairs such as the replacement of birch-bark on a particular shelter The grievor may also have been involved in the repair of a wigwam Mr LeFaive is not aware of the grievor being asked to perform any other craft work Mr LeFaive also gave some evidence with respect to the grievor's employment history As already noted, the grievor worked for a time with r the Huronia Educational Foundation. To make a long story short, the Foundation was established as a non-profit organization to collect revenues from Sainte-Marie's educatipnal programs and to use those revenues to employ staff to deliver the programs While employed with the Huronia Educational Foundation the grievor was not a Ministry employee However, when the objectives of the Foundation were redirected to fund raising it was decided that the grievor, and all other employees, would be credited with attendance credits but not Mmistry seniority for the time spent !., '" \ ( 15 employed by the Foundation It was subsequently decided that Foundation employees would also be credited with Ministry seniority for the time spent with the Foundation. Mr LeFaive testified that the gaps between various contracts held by the grievor, with both the Ministry and the Huronia Educational Foundation; could be explained by the fact that the grievor's employment was more or less contemporaneous with Sainte-Marie's business cycle Historical Interpreters are required when the public is in attendance or when educational tours are being conducted In contrast, two of the three Artisan \ positions are filled year-round The Costume Artisan works only during the summer season In 1992, two of the Artisans spent part of each day in period costume performing their skills when the site was open to the public The rest of their time was spent on maintenance and development. Cross-Examination of Mr. LeFaive In cross-examination, Mr LeFaive testified that two other Artisans were employed at a rel,ated historical site, the Naval and Military Establishment, also referred to as Discovery Harbour One of these Artisans was a teamster; the other a carpenter Since the instant grievance was filed a Blacksmith Artisan has been hired at $'ainte-Marie Mr LeFaive testified that the incumbent is a ticketed welder and metal worker He was not aware, however, whether the individual had blacksmith papers Mr LeFaive agreed that the Agricultural Artisan did not have a diploma in agricultur~ He was a mason with a farm background Mr LeFaive also agreed that it was possible that neither of the two Carpenter Artisans had carpenter certificates The Blacksmith Artisan spends a very limited amount of time in period costume Mr LeFaive testified that it was intended that the ,~ ~ ( 16 ,.' Agriculture ;:tnd Carpenter Artisans would spend two to three hours per day in costume In May 1992, however, neither of these Artisans worked in costume \ Mr LeFaive also told the Board; that while the Agriculture and Carpenter Artisans used both period and modern tools, they predominately used \ modern tools. Some period tools have been purchased and placed on display Other period tools, such as chisels, are used by the Carpenter Artisans Originally the Carpenter Artisans were designated as maintenance workers I Their positions were changed to the Artisan class The Agricultural Artisan is a new position When the carpenter positions were converted to Artisan positions the incumbents received some orientation These Artisans give demonstrations of their crafts, they do not give school or public tours In the off-season, and when not in costume, the Artisans, other than the Costume Artisan who works only in the summertime, do maintenance work. Mr LeFaive was ask~d some questions about the annual orientation program. He testified that Historical Interpreters tend to specialize in one of Sainte-Marie's core areas Some orientation training accordingly reflects the chosen area of specialization. Mr LeFaive again emphasized that the level of training required was not great In his first year as a Historical Interpreter, Mr LeFaive received training in blacksmithing In his second - ~ year as a Historical Interpreter, Mr LeFaive trained new staff in blacksmithing to the level required to demonstrate it to the public Similarly, the grievor has conducted traming to other staff, although Mr LeFaive emphasized that this training was once provided to the grievor, and that in training others he did so to the standard and level established by Sainte-Marie Mr LeFaive agreed that the grievor may have brought some I '~ i \ 17 ~ skills with him when he first began work at Sainte~Marie, but like other ( employees he was required to attend training and orientation programs Over the years, Mr LeFaive has become aware of the grievor's skills used outside of Sainte-Marie, and he testified that he has nothing but respect and admiration for the grievor'sknowledge and talents Mr LeFalve is aware of at least one occasion when the grievor was asked to relash the cooking area under the direction of the curator Along with other , Historical InterpreterS and maintenance staff, the grievor ha~ participated in the construction of shelters as part of the spnng harvest program Mr LeFaive does not believe that thiS program has been offered for four or five years It is possible that the grievor once assisted an outside contractor in building one wigwam He certainly assisted, along with other Historical Interpreters, in the building of another wigwam'. It is also possible that the grievor participated on other occasions in building shelters. Mr LeFaive testified that some of the other Historical Interpreters have 'the skill to \ assist in the repair of birch-bark buildings, but that Historical Interpreters ) would have infrequent and limited invdlvement actually doing so Mr LeFaive is aware that the grievor prepares artifacts for sale in a store, a non-profit organization called The Friends of Sainte-Marie iocated on the site Mr LeFaive is aware of at least three other Historical Interpreters who, on their own time, prepare artifacts for sale in this stor~ Mr LeFaive was asked whether the grievor's artistic capability exceeded that of most of the other Historical Ihterpreters. He testified that the grievor is one of a small group of people who possess skills beyond what is required for the position He agreed that a Blacksmith Artisan could probably make a better nail than a Historical Interpreter He also agreed t! i \ 18 ,; that an experienced Historical Interpreter could provide guidance to a less experienced Historical Interpreter He continued to emphasize, however, that the skills fequired for th~ Historical Interpreter position could be readily obtained As already noted, the Historical Interpreters tend to specialize in one specific area This is true with respect to the grievor who generally works in the native areas of Sainte-Marie during the months of July and August. During the remainder of the year, the grievor works, when employed, as a Historical Interpreter throughout the site Mr LeFaive was asked whether he would agree that for a large part of the off-season that the full-time Artisan employees do not require trade specific skills, and he testified that he would not. In his view, if there was a need to replace a door that was the job Of the Carpenter Artisan That was not the job of a Historical Interpreter I Mr LeFaive testified that a majority of the Artisan's work in the off-season is directly related to his or her particular areas of expertise Artisans do not, Mr LeFaive testified, perform menial tasks such as the transporting of items from one site to another ( That work is performed by Historical Interpreters or by volunteers Mr LeFaive did agree that some of the duties performed by the Artisans in ! ( the off-season, such as painting and drywalling, do not require a high \ degree of skill Mr LeFaive was asked a number of questions about the curator position He agreed that her duties included research, and that in conducting her research she would sometimes ask others for assistance Mr LeFaive testified, however, that while Historical Interpreters are given an hour or i'! { ( I 19 two per week of reading time to confirm historical information, research was not considered one of the duties of the position Mr LeFaive testified, with respect to the period of time during which the grievor was employed by the Huronia Educational Foundation, that he was generalJy aware of what work the grievor performed There was some difference in 'programming as school tours predominated during this period "- I Nevertheless, Mr LeFaive was of the view that th~ grievor, and other Historical Interpreters, generally made use of the same skills as they had while previously and ,subsequently employed by the Ministry Mr LeFaive agreed that accurate historic presentation by Historical I , This evidence was qualified, however, with Interpreters was important. the observation that the purpose of Sainte-Marie was not, for example, to demonstrate blacksmithing, rather, it was to talk about the role the blacksmith played at Sainte-Marie There was a difference, and Mr LeFaive ) explaihed it, between the depiction of trades by skilled and costumed l Artisans in a living museum, and the work of Historical Interpreters at Sainte-Marie which was much more limited in scope It was true enough that the public would obtain a more historically accurate depiction of some skill or trade if performed by an Artisan, but again Mr LeFaive testified that this was not the mandate of Historical \ Interpreters at Sainte-Marie The purpose of the Historical Interpreter position is to talk about the history of Sainte-Marie and to get the public invo(lved by participating in va~ious tasks where the skills required can be taught in a short period of time All Historical Interpreters were given the training required to exercise this role, although Mr LeFaive agreed that i"! \ i 20 . I some staff indicate preferences for demonstrating certain skills While Mr LeFaive would like to offer the programs typically found in living museums, that is beyond Sainte-Marie's present allocation of resources All Sainte-Marie can hope to do is to offer a snippet of what life must have been like at the mission some three hundred years ago He noted that a historically accurate site would require that all employees speak either French or Huron With respect to the qualifications required for the Historical Interpreter position, Mr LeFaive testified that it was not necessary to have a degree In history or political science The position specification refers to a requirement for "a strong; knowledge in one or more areas of specialization" Mr LeFaive was asked what these areas were, and he testified that many of the Historical Interpreters develop interests in particular areas such as Native History, Jesuit History, 17th Century European Medicine, and Women in New France. They then attempt to broaden their knowledge base by reading about their area of particular interest. These areas of specialization would not, however, be developed until after the employee had obtained the basic knowledge necessary for the performance of the ) position. Mr LeFaive has never hired a new Historical Interpreter because he or she brought to the position a particular area of expertise In making hiring decisions, Mr LeFaive looks to communication skills and educational \ experience, Sainte-Marie then provides the training necessary for the performance of the position He again emphasized that a mastery of skills was not required All that was required was sufficient knowledge to demonstrate the skills in ~ rather rudimentary way - and this knowledge could be readily imparted to Historical Interpreters as well as to members of the general public --- ,. ( ( 21 Mr LeFaive was asked about the historical relationship between natives and Europeans at Sainte-Marie He described the compound and the different J native and European living areas The European population reached as high as 65, the native population was often in the hundreds, although it was seasonal and transient. Re-Examination of Mr. LeFaive In re-examination, Mr LeFaive testified that as far as he knows nothing that the grievor sells to The Friends of Sainte-Marie store is produced on site Certainly, the grievor has never been asked to produce any artifacts while on the job for sale in the store ( Evidence of John Barrett-Hamilton Mr Barrett-Hamilton testified He is the General Manager of Huronia Historical Parks and has held that position since 1983 Mr Barrett- Hamilton was asked a number of questions about the March 19, 1992 ERe 1 meeting, the salient portion of the minutes of which is extracted above I According to Mr Barrett-Hamilton, the issue of converting some core seasonal positions into Artisan positions was raised by the union The employer expressed interest in the idea of developing a corps of Artisan employees No specific individuals or positions were discussed, and the only commitment which was made was that the employer was going to look into the matter No other commitments could be made 'because of various factors including budgetary restrictions' Cross-Examination of Mr. Barrett-Hamilton In cross-examination Mr Barrett-Hamilton agreed that the minutes of ERC meetings are widely distributed among employees He also agreed that the I ) :, 22 term corel seasonals applied to individuals like the grievor who return year after year -- Indeed, the group of core seasonals was relatively small, n'umbering approximately between ten and twelve Of this group, there are seven core seasonals working at Discovery Harbour and five core seasonals "- ) working at Sainte-Marie Mr Barrett-Hamilton agreed that within several weeks of this ERC meeting, two Artisan positions were created at Discovery Harbour These positions were posted and employees invited to apply Mr Barrett-Hamilton could not recall any union representations at the ERC meeting to the effect that the conversion or phasing in of Artisan positions should be done in a manner that appropriately acknowledged the seniority of the core seasonals He testified that even if submissions of this kind had been made, the employer would have still made its hiring decisions on the basis of qualifications. Union Argument \ Union counsel began her submissions by referring to Article 3 22 1 of the Collective Agreement. In counsel's submission, this provision required the employer to first compare unclassified jobs with existing civil service classifications And only when no civil service classification could be said I to exist were the parties to negotiate ~ wage rate for the job In counsel's view, the evidence established that the grievor was performing the work of an Artisan 3 as that position was defined in the Artisan Class standard It is appropriate, at this juncture, to set out the relevant portions of the class standard ~ ARTISAN PREAMBLE This class covers positions involving the explanation, application or demonsfration of period craft practices in a living museum such as Upper Canada Village The latter I \ " ( ( 23 is an authentic representation of life during a particular \ period of history and against this background the vanous crafts are demonstrated Work is not performed at production rates as authenticity of detail is the prime requirement For this reason, many of the incumbents work in period costume A variety of crafts at differing skill levels are involved, but for clasSification purposes, they are categorized as follows- Skilled - I chesse-making, bread-baking, spinning, weaving, and lacing Highly skilled - cabinet making, blacksmithing, painting, timber framing and woolen mill operating Individuals are required to use initiative and ingenuity in ~ their work, the scope of which includes the construction or reconstruction -of buildings and heavy equipment, reproduction or restoration of furniture, appliances, tools and vehicles and ~he production of small domestic items, some of which are for sale to visitors. Also included are positions that provide assistance or support to the craftsmen and positions involving the immediate technical and administrative supervision of the programme In these positions, although basic knowledge of craft procedures and materials is required, possession of specific craft skills is not essential This class series is distingui~hed from that of the maintenance trades by the following criteria- 1 Knowledge of and/or ability to demonstrate period or obsolete craft practices, tools, methods and materials. I 2 Practical research to extend current knowledge of craft practices, methods and materials relative to the historical period presented 3 Public contact involving demonstrations for the benefit of visitors and answering their questions In addition, the work is subject to the scrutiny of experts I r> .. 24 ( - and researchers such as consultants and historians May 1 966 ARTISAN 3 CLASS DEFINITION This class covers the positions of highly skilled craftsmen who demqnstrate the methods, techniques, and use of tools and materials appropnate to a particular I historical period in a living museum Initially, they J undertake a period of training in which time they learn the historical aspects of their trade and under direction perform some practical (research to acquire this knowledge They are required to supply information to the visiting public' the method of operation and descriptive delivery is developed and reviewed by the supervisor to ensure historical accuracy They are responsible for the maintenance of tools, equipment and machinery in their particular craft area Quring the non-operating season, they assume regular tr~desmen duties by performing a variety of duties for maintenance purposes QUALIFICATIONS ) 1 1 Grade 8 education, preferably Grade 10, completion of a recognized apprenticeship in an appropriate trade or an acceptable combination of training and experience (candidates who cannot produce evidence of successfully completing an apprenticeship will be required to qualify in a Civil Service Trade test.) ) 2 A number of years' experience in an appropriate trade or craft. ) ,.. \ I 25 I 3 Ability to demonstrate a craft for the visiting public I and exchange information, maturity and pleasant personality May 1 966 \ Counsel argued that the Preamble to the series accurately described the grievor's duties and responsibilities While native crafts were not listed among the e)(amples of crafts set out in the Preamble; counsel argued that there was no doubt whatsoever but that the grievor performed native crafts \ at the highly skilled level Counsel submitted that the grievor's work in I native shelter construction and repair, as well as in the creation of tools and small domestic items, was clearly equivalent in complexity and in ) skills and training required, to the oth\er highly skilled crafts which were set out in the class standard Counsel noted that the grievor was engaged in on-going research with respect to his craft, both within his community as well as through travel and study Turning to the class defintion for Artisan 3, counsel argued that this definition encompassed the grievor's duties and responsibilities given that it applied to highly skilled craft work such as that performed by the grievor Counsel pointed out that the grievor, as required by this class standard, was engaged in demonstrating the methods, techniques and use of tools and materials appropriate to a particular historic~1 penod in a living I museum. The grievor was required to undertake training in his craft, 'and as c earlier pointed out, was involved in on-going research and study with respect to it. The grievor supplied information about his craft to the visiting public, and he was responsible for the maintenance of tools, ( equipment and machinery in his particular craft area While the evidence established that the grievor was not on site during the non-operating ,. ( J 26 season, It also established that the gnevor performed various mamtenance tasks. Arguably, in the union's submission, the grievor's job, with this very limited exception, was accurately described by this class standard Counsel took the position that the evidence established that the grievor more than met the stated qualifications for the Artisan 3 It was noteworthy, in the union's view, that ,the grievor performed training in native crafts to Historical Interpreters. There was no reason why the Artisan series should be reserved to European trades, especially when the evidence established, as it did in this case, that the native crafts carried out by the grievor required a high degree of skill and that those skills were J only obtained following years of study and experience Counsel suggested 1 that the Minutes of the March 19, 1992 ERC meeting acknowledged that it was appropriate to convert some of the core seasonal positions into Artisan positions It was clear that the grievor's case was meritorious Very simply, 'counsel argued that given the fact that the Artisan 3 class standard accurately and comprehensively described the grievor's duties and responsibilities, and given the fact that Article 3 22 1 required that the rate of an existing civil service classification should be applied to a non-classified position, the conclusion was obvious that the grievor should be paid at the rate of an Artisan 3 The union submitted that the grievor should be paid retroactively for twenty days prior to the filing of his grievance In conclusion, counsel made a number of arguments in anticipation of the employer's submissions with respect to the jurisdiction of the Board as a result of the coming into force of Bill 48, the Social Contract Act Given ,. 27 c our fmdings wIth respect to the merits of this matter, no issue with respect to remedy arises and no purpose would therefore be served by reviewing the submissions of either party on this point Employer Argument Employer counsel began hIS submissions with the observation that the parties have in their Collective Agreement turned their minds to the proper pay rate for the Historical Interpreter position, and that pay rate IS set out in that Collective Agreement. Counsel then revIewed the evidence, and pointed out that the grievor had only been at work for a number of days i before his grievance was filed, and this would, of course, limit the retroactivity of the remedy should the grievor and union prove successful Counsel also pointed out that the grievor's work history included a considerable period of time with a non-Ministry organization, and while the grievor was subsequently credited with Minist~y seniority for that work, that did not mean that the work he performed for the Huronia Educational Foundation could be used to support his current claim In counsel's submission, the evidence of work performed during that peuiod was irrelevant to the instant case Counsel also made a number of submissions with respect to the evidence which the grievor led considered more generally He suggested that it was vague and somewhat misleading. He pointed out that the evidence ultimately established that the grievor did not build birch-bark canoes as part of his job, but instead assisted once in the construction of a canoe as part of a limited duration training exercise, not as part of his regular \ duties and responsibilities Ultimately, the evidence established that the grievor performed the same demonstrations as other Histoncal ,. \ ( I ~ 28 Interpreters, and counsel urged the Board to accept the evidence of Mr LeFalve that the skills required for the grievor's position could be, and were, readily acquired In counsel's submission, there was a big difference between the work of a - Historical Interpreter and the job defined in the Artisan 3 class standard The employer took the position that the Artisan is a craftsperson who performs a craft and demonstrates that craft to others In contrast, a Historical Interpreter is an individual trained by Sainte-Marie in the interpretation of the site, and in interpreting the site he or she performs demonstrations of readily acquired skills, and also imparts historical information Counsel argued that the core function of an Historical Interpreter was interpreting, not performing a craft at an Artisan's level I The fact that a Historical Interpreter could be trained in a matter of weeks was further reason to conclude that the Artisan class series did not apply Counsel pointed out that the skills required to smith a nail, or those required to make a wooden spoon, were simply not of the same order as those required of incumbents in the Artisan series The fact that the grievor worked on a series of short-term contracts covering Sainte-Marie's business cycle, while the Artisans worked year-round was another reason to distinguish between the two positions Counsel also suggested that the class series was closed to the crafts set out in the Preamble, and he noted that native crafts was not among them. However, even if the list was exemplary, counsel pointed that the crafts described were all established trades Counsel took the position that the Minutes of the March 19, 1992 ERe meeting did not serve any useful purpose \. !. 29 = .; as those Minutes do not contain any commitment to the grievor or to anyone else for that matter ) '1 Employer counsel also concluded his submissions with some comments about the limited nature of the Board's jurisdiction to award the remedy requested given the passage of the Social Contract Act As already noted, I there is no point, given our finding with respect to the merits of this matter, to review these submissions or to make any decisions with respect to them. Union Reply I \ mjln reply, counsel argued that the grievor's experience while employed by the Huronia Educational Foundation was relevant to the instant case Not only was he credited with Ministry seniority for this work, his evidence established that there was no difference between the kind of work he performed and the skills that were necessary for the performance of that work during his time with the Foundation as compared to his time, both previous and subsequent, with the Ministry Counsel pointed out that Mr LeFaive had, in his evidence, acknowledged the grievor's high level of skill Counsel further took the position that the Artisan class series was not closed, and she pointed out that there was no reference to an Agricultural Artisan, although one was employed at Sainte-Marie The same was true with respect to the Carpenter Artisans Counsel also took the position that it was fundamentally wrong, and possibly contrary to the Human Rights Code, to suggest that only trades of European origins could be considered crafts meriting the Artisan designation Quite clearly, in the union's submission, the grievor had ,~ '" 30 ;:< ,acquired a specialized body of knowledge through years of traming and experience And quite clearly he was highly skilled in his particular craft. While some of the jobs the grievor performed did not require a high degree of skill, the manufacture of a square nail being a case in point, this could 'not be said with respect to some of his other work, the building and repair of native structures being one of a number of examples on point. Counsel again urge,d that the grievance be upheld and that the Board remain seized with respect to the implementation of its award Decision Having carefully considered the evidence and arguments of the parties, we hav~ come to the conclusion that this grievance must be dismissed While the evidence establishes that the grievor is a highly skilled craftsman, it also establishes that he is not required to utilize those skills in his iob as a Historical Interpreter Obviously, it is his duties, and responsibilities at work which concern us, and we are satisfied on the evidence before us that the demands of the Historical Interpreter position, as performed by the grievor, are not equivalent to those set out in the Artisan 3 class standard. For whatever this observation is worth, we are of the view that the entire Artisan class series is completely inapplicable to the position of Historical Interpreter which, it is worth noting, was the subject of wage negotiations between the parti~s. Simply put, we do not find that Article 3 22 1 of the Collective Agreement has (been breached because the job being performed by the grievor is simply not "equivalent" to that set out in the Artisan 3 class standard That being the case, the parties, as the Collective Agreement reqUired, negotiated a separate wage rate There has, accordingly, been no Collective Agreement breach :~ ..~f 31 I ;;:- .-/ \ . In reaching this conclusion we have been influenced by a number of factors First of all, Mr LeFaive's evidence, which was uncontradicted, indicated \ I that Historical Interpreters are readily trained, to the level required by Sainte-Marie The fact that Historical Interpreters )qm be quickly trained clearly distinguishes what they do from the work performed by artisans The fact that a Historical Interpreter, such as the grievor, may have additional skills and knowledge, and may be a craftsman or craftswoman in I his or her own field, is ultimately not material to the issue of what he or she does while at work And here too the evidence established that notwithstanding the grievor's training and expertise in native crafts, that was not the job he performed while employed at Sainte-Mane \ In reaching this conclusion we considered the work the grievor performed ~ both '^fhile an employee of the Ministry as well as while employed by the Huronia Educational Foundation The manner in which the Huroma ~ Educational Foundation was established, and the fact that the grievor and other Historical Interpreters were later credited with Ministry seniority for their work at the Foundation, satisfy us that it is appropriate to consider the grievor's Foundation employment in arriving at a decision in ,) this matter However, that being said, we do not find that the grievor, \ I either while employed by the Ministry or while employed by the Huronia \ Educational Foundation, was exercising the skills of a craft bringing him within the Artisan 3 designation With the exception of some very limited examples, which are not sufficient In terms of time or characterization to constitute a different position, the evidence establishes that the grievor ( ( was performing the job of Historical Interpreter, and that this job is, in its nature, character, duties and responsibilities, quite different from that envisaged by the class standard for Artisan 3 ~--' ,., 32 p9 it Accordmgly, and for the foregoing reasons, the grievance is dismissed We would be remiss, however, to leave this case without one final observation It is as hard for us, as it is for the grievor, to understand why there is no native crafts Artisan position After all, the site is Sainte-Marie among the Hurons Moreover, the definition of historical interpretation, set out in the Operations Manual and reproduced above, indicates that the mandate of Sainte-Marie includes the objective presentation of factual and historical information about the lifestyles of both the Wendatand the French The , absence of a Native crafts ArtIsan is somewhat startlmg in these circumstances The fact that Sainte-Marie has established Artisan positions that are not listed in the Artisan class standard indicates that the series is not closed DATED at Toronto this 28th day of June 1994 (/ (/ -------- ~~~-------------- William Kaplan %ce-Ch3irpers.on I . (..Ll-f-Ft ) M Lyons Member ?II:;' OlJ~ M O'Toole Member)