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HomeMy WebLinkAbout1993-0910.Decarie.94-11-29 r, " ~" , - }~fifir:i-'; ~~i " EMPLOYES DE LA COURONNE ONTARIO ~1. CROWN EMPLOYEES DE L'ONTARIO .~'" ,~ GRIEVANCE COMMISSION DE 1111 , 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/TELECOPIE (416) 326-1396 910/93 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN OPSEU (Decarie) Grievor - and - ,- The Crown in Right of Ontario (Ministry of Consumer & Commercial Relations) Employer '-..I BEFORE: 0 Gray Vice-Chairperson J Laniel Member D Clark Member FOR THE G Leeb UNION Grievance Officer ontario Public Service Employees Union \ FOR THE D Costen EMPLOYER Counsel Legal Services Branch Management Board Secretariat HEARING January 13, 1994 March 22, 1994 r -- Co; v f1\. ",".~ .~. Decision- Wendy Decarie's grievance of March 31, 1993 alleges that the employer violated ArtIcle 6 by not paying her at a higher rate when she performed what , her gnevance describes as a "PPSR Job" The grievor began worlong In the Land RegIstry Office In BarrIe as a contract employee In January 1987 She became a permanent employee In November 1988 Her regular or "home" pOSItion thereafter was Services Clerk, which is classified as OA-2 Over a penod of 6 weeks beginmng in October 1989, the grievor was tramed to deal wIth requests to regIster documents under the Personal Property ) Security Act ("PPSA") and requests to conduct searches of registrations under that Act. She was the second Services Clerk to receIve this "PPSR" training Thereafter, she was periodIcally assIgned to be the person who receIved and dealt WIth PPSR registration and search requests. This PPSR aSSIgnment ( involved, among other things, examining documents tendered for regIstratIOn to determine whether they confo,rmed to apphcable requirements When there were no PPSR duties to perform, the person WIth PPSR assignment was expected to assist the other Services Clerks in theIr work. Mter she was tramed for It, the grievor was gIven and performed thIS PPSR aSSIgnment for a month at a time every other month until late November 1990, when she left on matermty leave. The other PPSR-trained ServIces Clerk, Melody DeLong, was given the PPSR aSSIgnment m the other months Before she took her maternity leave, the gnevor tramed a third Semces Clerk to perform the PPSR functions. After she returned to work In June 1991, she was gIven the PPSR assignment two or three weeks at a time When she dId not have that PPSR assignment, one of the two other PPSR-trained ServIces Clerks dId r--- ? - 3 - Duties and related tasks Provides counter services, document and book production, photocopying, microfilming, whiteprinting, cashiering and fee & receiving by' - receiving requisition slips for documents, locating documents and providing same to customers; - indicating, according to office procedures the location of withdrawn documents; - assisting office clients with requisition procedure and clarifying unclear requests; - pre-sorting returning documents and refiling; tracing missing documents; - on request, producing abstract index boo~s to the public and returning same to file; - provide maintenance and collect momes from coin-op photocopy machines; - fold and file whiteprints; - provide back-up to P.P.S.R., - operating master telephone set, providing courteous general information and assistance on inquiry and re-directing calls to appropriate staff and clients; - receiving requisitions for photocopies, locating document, abstract index or parcel registers as necessary and making photocopy; - refiling parcel registers after copies are made; - checking cash floats received each morning; - operating cash register by ringing in fees charged for registration, taxes, requests for searches, etc., \ - receiving documents from Registration Clerks with cheque in exact amount of fees llnd taxes and/or collecting cash and cheques in payment of fees and taxes from clientele, such fee and taxes have already been calculated by registration clerks; - giving refund to clients for overage amounts up to but not in excess of $20.00 on cheques and having client endorse back of cheque for cash received. - accepting cash, cheques from clients and making change; - receiving instruments from Registration Clerk or Cashier - entering by a typewriter or P C. in the Fee Book details from the instruments such as: registration number, municipality, land, solicitor nature of instrument, grantor, grantee, date and time of registration, consideration, fees and Land Transfer Tax; - photocopying pages of fee book as they are complete in order to produce day book for office clients. .- receiving documents from registration areas for microfilming; - darkening seals to ensure legibility; - ensuring.camera is set for proper focus and exposure, - microfilming documents; changing films; performing routine maintenance and labelling exposed films; - receiving requests for copies of plans, locating and drawing plan from files and producing the number of copies required, - selecting the appropriate type and width of stock, regulating exposure time, .., speed control, etc., - trimming copies to correct size and inspecting for quality of reproduction - assuming responsibility for general care and maintenance of equipment; - assuming clerical duties as required or assigned. Note: Staff perform any combination of above duties as required or assigned. Skills and knowledge required to perform job at full working level Knowledge of office practices and procedures. Knowledge of records keeping and filing and cash handling procedures. Arithmetic necessary for handling cash and I ~ .;' - 2 - l 'f; The gnevor believed that PPSR functions were part of the duties of a ServIces Clerk until March 1993, when she went to a meeting attended 'by employees of other Land RegIstry offices One or more of them told her that to do PPSR functions In the offices where they worked, an employee had to be at an OA-6 or 8 level.I That prompted her to file thIs grIevance, allegmg vIOlation of ArtIcle 6 The penod for whICh the grIevor seeks compensatIOn for breach of Article 6 extends from October 1989 to March 1993 The collectIve agreement In effect at the time the grIevance was filed was made In 1992, wIth effect as of January 1, 1992 The prIor agreement took effect on January 1, 1989 In both agreements, ArtIcle 6 contams the following provIsions 6.1.1 Where an employee is assigned temporarily to' perform the duties of a position in a classification with a higher salary maximum for a period in excess of five (5) consecutive working days,. he shall be paid acting pay from the day he commenced to perform the duties of the higher classification in accordance with the next higher rate in the higher classification, provided that where such a change results in an increase of less than three percent (3%), he shall receive the next higher salary rate again. 6.4 This Article shall not apply to temporary assignments where an employee is temporarily assigned to perform the duties and responsibilities of another employee who is on vacation. / The employer's positIOn in opening was that when the grIevor was performIng what she calls "the P.P.S.R. job" she was performing one of the duties of her own pOSItIOn of ServIces Clerk. The PositIOn SpecIficatIOn for the Services Clerk pOSItion reads as follows' Purpose of position To provide counter services in Registry and Land Titles .to solicitors, title searchers and public including book counter, document production and refiling, photocopying, microfilming, whiteprinting, cashiering, fee & receiving and inquiries. 1 The parties agreed that there are positions in other Registry Offices called "P.P.S R. Clerk" which are classified OA-6 or above. They did not agree on the degree to which the duties of those positions overlapped those of either the Service Clerk position or either of the positions occupied by Mr Gibson. Neither party led any evidence with respect to the duties and responsibilities of any of those "P P.S.R. Clerk" positions. -.. -.- J,' . 4. ~ collecting taxes. Ability to operate a cash register at an acceptable standard of ~ speed and accuracy - ability to work quickly and accurately under pressure and deal tactf~y and diplomatically with a positive service oriented attitude with staff and public - good physical condition as heavy lifting, standing, bending, etc. are encountered frequently' - typing ability and or keybord [sic) skills not to C.S.C standards - good communication skills; - knowledge of current fee schedules as applicable; - ability and willing~ness to respond to training. The employer relies partIcularly on the words "proVlde back-up to P.P.S.R." m the list of duties, and on the note that "Staff perform any combmatIOn of above duties as required or assigned" The union's pOSItion IS that P.P.S.R. duties whlCh were assigned to the grievor from time to time were duties of the OA-6 pOSItion wmch Fred Gibson occupied In 1989, wmch was called "Senior Clerk, P.P.S.R. and Compames" The PositIon SpecIfication for that positIOn (wluch is stated to be effective April 1, 1988) reads as follows: Purpose of Position 1 To provide examination and registration services under the Personal Property Security Act, Bills of Sale Act, and Business Corporations Act for compliance with the relevant statutes. 2. To provide group leadership technical assistance and guidance to services clerks. 3. To provide information and assistance to public. 4. To provide a variety of general clerical services. 5. To assist the Deputy Services in purchasing, records retention, inventory control and ?ffice equipment maintenance. Duties and Related Tasks 1 Provides examination and registration services by' - examining documents and financing statements under the Personal Property Security Act, Bills of Sale Act and Business Corporations Act for compliance with the relevant statutes, regulations, policies and procedures. determining, collecting and recording proper fees In accordance with applicable regulations and office procedures. 2. Provides group leadership and assistance to services clerks by' - advising services clerk of appropriate office procedures - providing assistance and guidance to service clerks on a variety of service related problems and duties; - assisting supervisor in training of services clerks. - ~ 3. Provides information and assistance to public by' - advising clientele regarding general office procedures and services available in areas of P.P.S.R., Bills of Sale, Companies Registrations and 1 ~ - 5 - - in Registry Services including registration, searching, production and reproduction of instruments, books and plans by microfilm, whiteprinting and photocopying. 4. Provides general clerical services by' - assuming duties of senior services clerk as required or assigned - producing books, documents, plans and white prints on request; - making photocopies of documents and abstracts as required, - performing microfilming duties according to accepted office procedure, - performing cashier duties including the assessment of proper fees and collection of same; - performing services clerk duties as required or assigned. 5. Assists the Deputy Services by' - advising incumbent when stocks of supplies are at reorder levels; - advising incumbent when equipment requires maintenance or is out of order and taking appropriate action as requested or assigned, - preparing records for transfer or destruction as provided by the records retention manual, - performing duties of senior services clerk as required or assigned. 6. Performs such other duties as are assigned. Skill and Knowledge required to perform job at full working level Thorough knowledge of relevant Statutes, Regulations, Ministry Policies and office procedures. Good communication skills combined with tact, diplomacy and a positive service oriented attitude with staff and clientele. Combination of education, training and experience sufficient to ensure knowledge and ability to perform all required duties and responsibilities; Ability and willingness to respond quickly to training needs and fluctuating workloads; Ability to priorize [sic] service demands. Good leadership skills; Good knowledge of general office equipment and computers with experience in using cash registers, photocopiers, whiteprinters and microfilm equipment. Typing skills, not to C.S.C. standards. Mr Gibson has been employed at the Barne RegIstry Office since 1973 He was called as a WItness for the employer He testified that at one tlme he handled all personal property, bills of sale and compames registrations and ran \ the land registry counter as well. HIS pOSItIon's claSSIficatIOn was then OA-6 When the workload of that Job became too great for one person, a second OA-6 posltlon called "Senior Services Clerk'; was created. That new positIOn was gIven the primary responsibility for runmng the counter and providing group leadershIp to the ServIces Clerks. Mr Gibson's dutIes became those set out m the posltlon descnptlon for the "Semor Clerk, P.P.S.R. and Compames" position. He testlfied that at that stage he was stIll the person who regularly performed the PPSR functlons in the office. One of the Services Clerks, Melody DeLong, was \ ,. - 6 - \ !. . also capable of performing PPSR functIOns, but at that pOInt she only dId so when Mr Gibson was absent from work. Then the incumbent of the Sernor Services Clerk posItion, PatriCIa Hammond, won a competition for another posItion. Her Senior ServIces Clerk position became vacant and was not filled. Instead, Mr Gibson was gIven more responsibilities, Including runrnng the counter arid provIding group leadershIp of the Services Clerks. With those changes, hIs Job was eventually renamed "Chent ServIces Officer" and reclaSSIfied as OA-8 The POSItion SpecIfication for thIS new pOSItion, WhIch expressly supersedes the OA-6 pOSItion "Sr Clerk PPSR/Companies, " contemplates that its incumbent IS to provide group leadershIp, provide aSSIstance to the Deputy Land Registrar, Client ServIces and provIde chent service, sernor clerical support and registration. It states that one of the several means by which the pOSItIOn may provIde clIent servIce, sernor I clerical support and registration IS by "serving as regIstratIOn and enqUIry clerk I in P.P.S.R., Comparnes and Registrar General and as registration clerk In I I RegIstry and Land TItles as workloads demand." While the PosItion SpecIfication for the Client ServIces Officer pOSItIOn I states that it was effectIve November 1, 1991, there IS a conflIct in the eVIdence I about when Ms. Hammond's Senior ServIce Clerk pOSItIOn actually became I vacant. Brian MacGillvray, who came to the Barrie Land RegIstry Office In May 1990 as Deputy Land RegIstrar (ServIces), saId he belIeved that thIS happened some time in 1991 Mr Gibson testIfied that the vacancy occurred in 1989, before the grIevor was trained on PPSR funCtIOns He stated that the arrangement by I whIch PPSR functions were performed on rotatIOn by Ms. DeLong and the I grIevor was Instituted by Mr MacGillvray's predecessor because Mr Gibson I could not do all of Ms. Hammond's former duties m addItion to his own. Mr I Gibson was closer to these events and more directly affected by them. HIS recollectIOn of when Ms Hammond ceased performmg the Sernor ServIces Clerk duties hkely to be firmer and more accurate than Mr MacGlllvray's. ---, ~ 7 - We accept Mr Gibson's testimony that It was because he could not handle the full duties of his "Semor Clerk, P.P.S.R. and Compames" m addltlOn to the ) duties of the "Senior ServIces Clerk" position whIch management also wanted him to handle that the PPSR functions associated wIth the former position came to be performed by SeI'Vlces Clerks m rotation. Those PPSR functlOns were \ assIgned to and performed by Servlces Clerks throughout the penod covered by thIs grIevance Mr Gibson tramed or assisted in trammg Services Clerks to perform those functions. He served as a resource for the tramed clerks by \ answering questions and providmg what he describes as "backup" when the work became partIcularly busy or difficult. Dunng the period from October 1989 to March 1993, however, he was not the person primanly responsible for performing those PPSR duties on a day to day basis. At any particular pomt in that perIod, that person was eIther the grlevor or one of the other PPSR-tramed Services Clerks. Mr MacGlllvray, the Deputy Land RegIstrar (Services), testified that the ( PPSR-tramed Service Clerks were assigned to PPSR functions on a regular basIs so that theIr ability to "provide back-up to P.P.S.R." could be kept current. He had difficulty explaimng how the Service Clerks could be described as providing "backup to P.P.S.R." when no-one other than those SeI'Vlce Clerks was performing the PPSR, function on a regular basIs He eventually conceded that "the way in which we handled the PPSR function IS not what you would normally ( interpret from the work 'backup'," but he claImed thIs was the only way that backup could be prOVIded for Mr Gibson when he was away Wlule thIS latter claim is dIfficult to credit, nothIng turns on whether It IS true or not. Mr Gibson was not asked how much of hIS work day was spent domg PPSR functions just before the Services Clerks began performmg those functions on a rotatmg basIs. It IS apparent, however, that it must have been a substantial portion of rus work day - 8 - 'f The grievor stated that when she was assIgned to do the PPSR rotation, she spent 75 to 80 percent of her work day performmg PPSR functions, and the balance on functIOns which the parties agree are normally associated wIth the Service Clerk functIOn. She saId this was so both before and after her matermty leave. When explammg why the percentage had stayed the saine after her maternity leave, however, she testified that she was mcluding m it other tasks whIch Mr Gibson and Mr MacGIllvray had assIgned from time to time, hke ordermg forms or malhngout busmess registratIOns. While the gnevor was absent on matermty leave, the method of I performing PPSA searches changed. Before she left, searches were performed by telephoning a Toronto number to speak to someone who performed a search from a computer terminal. The clerk placed the call, and then stood by whIle the customer provided the search details and receIved the results. When the gnevor returned from maternity leave, it was possible to conduct a search directly from a termmal installed m the Barne office. Mr MacGillvray testified that thIs change reduced the amount of time spent on PPSR matters. Mr Gibson testified I that the volume of PPSR work was "Immense" in 1989 and 1990, but decreased thereafter Mr MacGIllvray testified that, based on his observations and records of the numbers of transactions, he believes that when he arrived in May 1990 PPSR functions occupIed 50 percent of the time of the ServIce Clerk assigned to them, and that thIs had reduced to 35 percent by March 1993, when thIS grIevance was filed. When asked about this 35 percent estimate as of March 1993, Mr Gibson saId that on some days there was no more PPSR work than that, and on some days PPSR work occupies the clerk's entIre day Mr Gibson's former posItIon, "Semor Clerk, P.P.S.R. and Compames", involved prOVIding "exammation and registratIOn servIces under the Personal Property Secunty Act, BIlls of Sale Act, and Busmess Corporations Act", among other thmgs. The grievor testIfied WIthout contradIctIon that by October 1989 / bIlls of sale were being dealt with under the PPSA and were no longer separately -, - 9 - ~ regIstered. Mr MacGillvray testIfied that as of May 1990, Mr Gibson was spendmg about half of Ins day on tIns exammation aI,ld regIstratIOn aspect of hIs posItion. This was at a time when, on Mr MacGlllvray's eVIdence, a Semce Clerk would be spendmg about 50 percent of her day on PPSR functions which Mr Gibson had performed himself until some time m 1989 Mr MacGillvray also testified that the volume of "Companies" regIstration work remamed constant during the period after May 1990 Mr Gibson testified that he was spending two to three hours a day doing Companies registration work as of March 1993 A handwritten margmal note on the 1988 POSItion SpeCIfication for "Senior Clerk, P.P's.R. and Compames" posItIOn mdicates that providing "exammatIon and regIstratIOn servIces under the Personal Property SecurIty Act, Bills of Sale Act, and Busmess CorporatIOns Act" was 50 percent of that Job The eVidence to which we have referred suggests that it must have been conSIderably more than 50 percent Just before the ServIces Clerks began performmg the PPSR funCtIOns m rotation. Before then, performing the PPSR functions clearly must have been a very substantial part of the job Dealing with Compames matters was also a substantial portIon of that Job, however There IS no suggestion that the Companies aspect of the position was part of any aSSIgnment to the grIevor \ Argument The umon submits that ArtIcle 6 11 must apply whenever an employee IS assigned duties wInch are classified higher than the employee's home Job Otherwise, the employer could save money by assigmng lower paid people to do the work of hIgher claSSIfications. The unIOn says that the employer cannot divvy up a job and aSSIgn parts of it to lower rated employees and deny them the pay level associated WIth those duties. It argues that that is what happened here. The union says that PPSR duties are classified as OA-6, and that the grievor IS entitled to higher pay for the periods during which she was aSSIgned those duties. It CItes the Board's deCIsion in Bonner, 19/89 (Verity) in support of these arguments. The umon acknowledges that Mr Gibson's current OA-8 pOSItion has " ~ 10 - . a sIgmficant group leadership component wluch the grIevor has not been assigned. The position on wluch its argument under ArtIcle 6 11 focuses IS Mr Gibson's former OA-6 pOSItIOn, no po1Ots were assigned for grO\lp leadershIp when that pOSItion was classified. The employer'notes that this is not a "classIfication case", and the issue IS not whether the grIevor's position is improperly classIfied. It submIts/that an employee must be assigned the "core duties" of an .e:astmg pOSItion 10 a lugher classification before Article 6 11 can be said to apply It is not enough that some of the emp\oyee's assigned duties overlap those of a position 10 a higher classificatIOn. Mr Gibson's former OA-6 position involved performance and responsibihty ,for both PPSR and Compames regIstrations, as well as group leadership on a backup baSIS. HIS OA-8 posItion involved considerably more group leadership responsibIhty Mr Gibson reta10ed some responsibIhty for PPSR matters even after Semce Clerks began performing those functions on rotation. The Companies registration and group leadershIp components were substantial parts of both positions. Since those components were not assIgned to the grIevor, she was not assIgned to perform "the duties" of eIther the OA-6 or the OA-8 pOSItion. Employer counsel referred to the Board's deCISIOns 10 Noon, 111/81 (McLaren), Collms, 0807/85 (Kirkwood), Farrelly, 424/86 (Draper), Bullock, 699/87 (FIsher), Nichols, 778/89 (Knop t) and Gerva~s, 392/89 (DIssanayake) Decision Hav10g regard to the language of Article 6 1.1, the union must show that the grievor was "assigned temporarIly to perform the duties of a pOSItIOn in a classIficatIOn WIth a hIgher salary maXImum for a perIOd 10 excess of five (5) consecutive working days" 10 order to succeed 10 thIS grIevance It IS common ground that the grievor was assIgned to perform PPSR functions for perIOds 10 excess'of five (5) consecutive work1Og days on a number of occasions between late 1989 and March 1993 There IS no challenge to the umon's assertion that these I - 11 - assIgnments were "temporary" The Issue here, then, IS whether on those occasIons the grIevor was assIgned "to perform the duties of a posItIOn m a classificatIOn wIth a hIgher salary maxImum." It is clearly not enough to show that the duties assigned were not ones which the grievor ordinarily performed. Nor is It enough to show that the duties assigned fell outsIde the descrIption m the Position Specification for her home positIon and must therefore have been the duties of some other posItIOn. The union must show that that other positIOn was "a posItion in a classIfication WIth a hIgher salary maxImum," and that the grIevor was assIgned "the dutIes" of that positIOn. The parties used the words "the duties," and not just the word "duties" The Board's decisions have gIven effect to that distmctIon. AgaInst the background of those decisIons, the partIes have continued to use that language m succeSSIve collectIve agreements. \ In Noon, supra, the grIevor was, a RecreatIon and Craft Instructor at a centre for the developmentally and physically handIcapped. He worked the afternoon shift. The Athletic Supervisor at the centre posted a memorandum stating that, in his absence, Mr Noon would "be in charge of the pool" during certain hours. The grievor claimed this amounted to a temporary assignment to him of the duties of hIs supervIsor's lob when the supemsor was absent. The Board made these findings and observations. ! When the supervisor leaves work at 4,30 p.m. the Grievor is left in charge. There is no doubt that he performs some of the tasks of a supervisor during the following five hour period. He also takes on additional responsibility during that perIod. However, what he IS reqUIred to do does not amount to takmg even the central aspects of the supervIsory position. The Grievor indicates in his own testimony that he does not have authority to carry out discipline. He confuses the fact that he must initiate disciplinary proceedings by advising the supervisor, with having disciplinary authority The limitation on his responsibility is also evident when he testifies that he must try to contact the supervisor before permitting employees to go home early or leave because of illness, or for other reasons. Naturally, if he is unable to get advise or direction from the supervisor he must make a decision. Such decisions are n.ot the exercise of supervisory authority and responsibility but are required because of the inability to contact supervisors who do have such authority The responsibility to deal with matters when unable to contact supervision does not ~ - 12 - amount to having supervisory authority and responsibility The Gnevor IS not exercIsing the core of the responsibllltles of the superVlsor those being the acceptance and use of authority in the course of directmg other employees. For those reasons, It cannot be sald that the Gne~or IS "performing the dU~les of a positIon" as requIred by ArtIcle 6.1 He is doing some of the tasks but does not have supervisory authority or responsibility Nevertheless, his responsibility does increase between 4.40 p.m. and 9.30 pm. but only to the extent necessary to continue operations. Being in charge of continuing the operations until 9:30p.m., is not equivalent to performing the duties of the position of supervisor Wh~t he is doing, is more in the nature of a "lead hand" type of function than being temporarily assigned as a supervisor Furthermore, many of the supervisory functions only arise during .the day and the Grievor would never have to deal with them. For example, the task of scheduling vacation, dealing with merit and other forms of compensation, committee meetings and other decision making tasks are never required of the Grievor during the five hour period. Nevertheless, the tasks of the Gnevor do change when the supemsor leaves work. The parties should consider negotiating changes to the collective agreement to reflect these types of alterations to an individual's duties. (emphaSIS added) In Collms, supra, the grIevor was m a positIOn classified as Mechamc 2 After hIS applIcation for a newly created posItIOn of "Foreman" was rejected m favour of another candIdate, he grieved that should be paId pursuant to ArtIcle 6 for having acted as foreman during a period prior to the hiring The Board found that the specified job duties of the newly created Foreman positIOn were "sIgmficantly dIfferent from the functIOns which the grIevor performed" durmg the period in questIOn. Although there had not preVIously been a Foreman pOSItion at the workplace, for some years there had been a class standard for a "ForemanIForewoman" claSSIficatIOn. The Board compared that class standard wIth the class standard for the Mechamc 2 classification to "determine whether the grIevor acted as foreman even though no positIOn of foreman eXIsted" durmg the relevant perIOd. The grievor was Ii mechanic 2 and the job standards were set out in 1966. Therefore, if the grievor were to act as a foreman, the job that he has to perform has to include the functions that go beyond that which were required for mechanic 2 and fall within the standards of a foreman. The essence of the foreman's job standards which specifically distinguish it from a mechanic 2 is the necessary function of supervising all the mechanics in the shop Accordingly the foreman has to have the skills of a mechanic 2 but must also be assuming the responsibility of supervision over the whole shop as an essential function of the job on a day to day basis. In reviewing the class definition of a mechanic 2, there is an element of supervision that may be --- '" - 13 - . required. A mechanic 2 may "supervise the work of one or two qualified mechanics performing one routine repair or mamtenance work." The mechanics at the time worked well individually and also as a team when they could not resolve their problems. Although the grievor participated in problem solving, we are not satisfied that he in fact supervised them more than in a minor way He may have directed work to some of them from time to time but not sufficient to fall outside the scope of a mechanic 2 and within the scope of a mechanic/foreman It was also recognized that the duties of a mechanic 2 may I include as a "regular and important assigned responsibility of the job" the role as " acting as recognized assistant of shop Foreman in a large shop" Although W Dipietro was not a foreman but a manager of the shop we are not satisfied that the grievor's role went beyond that of assisting Mr Dipietro. We do not find that the union was able to discharge the onus that the grievor's work went beyond the supervision referred to within the class definition. Mter observing that an employee's unilateral assumptIOn of responsibIhties could not support a claIm under ArtIcle 6, the Board said that l In conclusion the union ~as unable to discharge the onus upon it to show that the grievor was assigned temporarily to the position of foreman. The position that existed as of March 26, 1985 has no bearing to the work which the grievor performed. We do not find that there was ajob of foreman existing until at least March, 1985. Management had created the job standard for the position, but had ..not created the job until the workload in the garages had expanded and there was the necessity to maintain the work records. The grlevor himself acknowledged that Mr John Obergaw who acted in the same way as he did, acted as a lead hand. We cannot agree WIth the umon's counsel that an assIgnment could be made to a Job which does not eXISt. However, even If the Job standards could be smd to have created a position of foreman, we are not satISfied that the gnevor performed the functIOns which went beyond that of the mechamc 2. Primarily he was not responsible for the car and the motorcycle divisions, he did not instruct or train subordinate staff, nor supervise work of subordinates and check their work performance. The grievor may have been assigned to act on Mr Dipietro's behalf by Mr Dipietro when he was absent; however, article 6.4 of the collective agreement precludes any payment for acting in a higher position when an employee IS temporarily assigned to perform the duties and responsibilities of another employee while that employee is on vacation and furthermore the union did not prove that he was assigned to the position of foreman for periods of in excess of eight days exclusive of vacation days. We are -.., not satisfied that the time sheets are of any assistance in determining the grievor's functions, as they were not sufficiently detailed and there were no consistent guidelines or monitoring for their completion. We do accept, however, that he did aSSIst Mr Dipietro WIthin the scope contemplated in the job standard for a mechanic 2. (emphasis added) The grIevor in Farrelly, supra, was employed at the Welhngton Detention centre m the pOSItion of General Duty Officer, whIch was classified as CO2 The institutIOn had a hIStOry of rotatmg General Duty Officers through varIOUS areas I I " - 14 - ~ of the InstitutIOn, mcludmg the AdmIssion and DIscharge ("AID") Section. A Mr Lambert worked in the AID SectIOn on the day shIft. HIS posItion was "Seruor Admittmg IDIscharge Officer", whIch was classIfied as C03 The gnevor was assIgned to work in the AID section on the afternoon sluft. He gneved that he was entitled to acting pay for performing the dutIes of Mr Lambert's Job or, alternatively, that lus posItion was Improperly classified. The Board found that the employer's assignment of the grievor to work in the AID section was consIstent WIth its practice of rotatmg General Duty Officers through that section, and that the grievor was not assIgned the responsibIlIties wluch distingUished a positIOn like Mr Lambert's from hIS own. We are not persuaded that particular duties temporarily performed from time to time by different employees and forming only a part of the regular duties of their position and classification may constitute proper grounds for the reclassification of the position. Further, we are of the view that Article 6.11 is intended to apply only where an employee is temporarily assigned to perform the duties of a position already found in a higher classification and where that employee is temporarily replacing another employee (except an employee on vacation) or is temporarily filling a vacancy Here the Gl'ievor was not assigned to perform the I' duties of the Senior Admitting/Discharge Officer position. He was not replacing Mr Lambert nor was that position vacant. Apart from those considerations and because the parties addressed the case, in effect, as one of classification, we beheve it is appropriate to record our opinion regarding the similarity, or lack thereof, between the duties of Mr Lambert as Senior Admitting/Discharge officer and those performed by the Grievor while assigned to the AID section. The right of the Employer to create and classify the new position and to fix its duties and responsibilities, which were derived from the class standard for the C03 classification, is not in question. The incumbent is to serve "as officer in charge of a specialized institutional function (admitting and dIscharge)" and to be "responsible for the efficient operation" of the section by personally carrying out admission and discharge procedures for inmates and providing leadership supervision and assistance "to General Duty officers assigned l;ln a rotational basis" to the section. We conclude that the Grievor and Mr Lambert performed many of the same routine tasks while on their respective shifts and that in practice there was little supervision by Mr Lambert. However the essential distinction between the jobs performed by the two employees lies in the responsibility and accountability for the AID function borne Mr Lambert. That is no less his obligation because he saw no need to exert the authority of his position in relation to the Grievor who was, after all, an experienced C02. The development of a close and amIcable relationship between them is not proof that that authority was not there to be exercised, or that because it was not they shared responsibility for the AID section. ----- -- I ~- - 15 - ~ The grievance was dIsmissed The POSItiOns of the grIevors m Bullock, supra were classIfied as HIghway Equipment Operator III The grievors claimed that when performing Night Patrol duties during the wmter, they were entitled under Article 6 to be paId at the same rate as a position entitled Mamtenance Crew Foreman and clasSIfied as Highway General Foreman/Forewoman I The grievors' summer duties were qwte different from the summer duties. of the foremen. In the winter, however, both the grievors and some foremen performed what the ~ecIsion calls "the Job of NIght Patrolmen." The Board described the questIOn raIsed by the grievance this way. It was admitted by the employer's witness that the functions performed by the foremen performing night patrol duties were virtually identical to the functions performed by the REO Ins when performing night patrol duty in the winter The question then arises as to whether or not, given that approximately 40% of the time the REO Ills are performing the same tasks as general foremen, they should be compensated as a general foreman for the period of time they are performing that job function. The Board noted that the HEO III class standard clearly contemplated that performance of the duties of a NIght Patrolman mIght be part of a job falhng wIthm that claSSIfication.. It rejected an argument that the grIevors had been given supervisory responsibilities whIch went beyond what was impliCIt in the night patrol functIOn. It concluded that the grievors had "not shown that the work they were domg was not already part of their own Job," and dismIssed the grievance In Nichols, supra, 31 grIevors m RegIstered Nurse pOSItions classified as Nurse 2 General at the Penetangwshene Mental Health Centre claImed additional pay under Art~cle 6 1 1 for periods when they had been assIgned to the role of Charge Nurse. They claImed that when so assigned they were performmg the duties of the pOSItIOn of Head Nurse, wmch was claSSIfied as Nurse 3, General. The Board found that ,. ~ \ / ~.. 16 - ~ the facts are simply not sufficient to support the grievance. Whether we compare the position specifications of a Registered Nurse and a Head Nurse or the Class Standards of a Nurse 2 to a Nurse 3 General or the actual functions as revealed in the Statement of Facts given to us by the parties, we are led to the inescapable conclusion that the functions performed by the Charge Nurse are functions which were fully contemplated in the Nurse 2 and Registered Nurse position and level. It is true that the Head Nurse position contemplates more supervisory and administrative work than the Registered Nurse. The Head Nurse is responsible for the effective operation of a ward whereas the Registered Nurse is looked upon to provide nursing care. However a Registered Nurse is also expected as a core function or essential element of his/her duty to provide administrative duties on the ward such as relieving a Head Nurse, providing instructions to other nurses and other clinical staff, monitoring nursing efforts, reporting unusual occurrences and participating as part of the clinical treatment team. Further, part of the job standard is thilt a Nurse 2 General may "supervise the a~signment of duties and check the work of subordinate staff on the same shift." Further, it is specifically provided in the Nurse 2 General Standard that "depending on factors such as the hours of duty, the size and the amount of active nursing required in the administrative unit, they are responsible to a supervising nurse for all or part of the nursing or personal care. in the administrative unit as assigned." The Standard even goes so far as to say "They may on occasion, relieve supervising nurses." This is clearly what the Charge Nurse does. Thus, it is clearly part of a Nurse 2 General's essential responsibility to be able to and to act in the role which has been assigned to a Charge Nurse at this facility Thus, we have not been satisfied that the grievors perform functions which go beyond those expected of a Nurse 2 General or a Registered Nurse. I Even if we are wrong in this regard, we also conclude that the grievance' must fail under the analysis found in Farrelly, supra. In that case the grievors sought relief under Article 6.1.1 However, it was found that there was an essential distinction between the job performed by the grievors in that case and the - responsibility and accountability of the position for which they sought the temporary level of payment. Quite simply, the grievors did not take on the same level of responsibility of the ,position they were seeking. In the case at hand. it cannot be said that the grievors were assigned to the position of a Head Nurse. They did not share the same level of responsibility accountability or overall functions of the Head Nurse. A ~imple review of the recital of agreed facts with reference to the Head Nurse position shows that a large number of critical functions of the Head Nurse are not undertaken or expected from a Charge Nurse. Therefore, it cannot be SaId that they were filling a vacancy for a Head Nurse or undertaking the Head Nurse's'responsibilities. Therefore, again, the grievances must fail. We reiterate that we have no difficulty seeing why these grIevances were brought. We note that these Charge Nurses lack an institutional recognition, by way of premium payor otherwise, for their addItional responsibilities over and above those they undertake as registered nurses. Such recognition is often found in other sectors and may well be sought by the Union at the bargaining table. However the function of the Board of Arbitration is simply to interpret and to apply the existing collective agreement. Unfortunately for these grievors, the collective agreement, as currently framed, does not give them the relief tl;1at they seek. The grievors in Gerva~s, supra, included many of the gnevors In Nichols They made the same claim as in Nichols concermng perIOds when they were ~ I 1 ~ - 17 - 'j; assigned to be "Team Leaders" They argued that when servmg as Team Leaders they assumed a greater portIOn of the duties of the hIgher classIfication than the grIevors in Nichols had assumed when assigned as Charge Nurses As m Nichols, to which It referred, the Board dismIssed the grievance. It found that the differences between the duties of Team Leaders and the Charge Nurse dutIes addressed in Nichols were "not of any substance or significance as would make the Board's reasorung m Nichols mapphcable" It concluded both that the Team Leader functions were "fully contemplated in the Nurse 2 General position and level" and that "when performmg as Team Leader, the grievor were not assigned to the position of Head Nurse, nor did they share the same level of responsibIhty, accountability or overall functions of the Head Nurse." In Bonner, supra, the grIevor was in a posItion clasSIfied as Attendant 2, Oak RIdge. He was sent to a trairung seSSIOn set up to "tram Instructors to teach W.H.M.I.S semmars to all employees," 'and thereafter prepared for and taught 24 such full day semmars. He sought compensation under ArtIcle 6 for time so spent, at the rate of pay for posItions classIfied as Safety Instructor 2 The I Board's deCISIon recites that The parties agree that under Article 6.1 1 the onus is on the Union to establish three criteria, namely (1) that the grievor was assigned temporarily to assume duties in another position (2) that the job performed was for a period in excess of five consecutive working days, and (3) that the grievor performed duties of a higher classification. / The employer argued that these crIteria had not been satisfied and, m the alternative, that the grievor only quahfied for the Safety InstructIon Officer 1 class standard. The Board found that "the grievor was assigned to a teaclung role that was not part of his regular job" and that the duratIon requirement was met for at least part of the perIOd covered by the claim. It also found that the duties assigned to the grievor on the occasIOns m question were the core duties of the Safety Instruction Officer 2 class standard. The real issue is whether or not the grievor was performing the core duties of the Ingher classification, as alleged. On the evidence adduced we are satisfied that he was indeed performing the core duties of the Safety Instruction Officer 2 class ~ ~ t ~ .. . 18 - .- standard during the three month period of the temporary teaching assignment. The Board must broadly apply the class standards in a realistic fashion, recognizing the fact that in a temporary assignment there will seldom be a perfect fit. In the instant grievance, the grievor actively taught or trained departmental personnel and was in charge of one specialized activity; namely, the W.H.M.I.S program. On the evidence adduced, it cannot be said that the grievor "assisted in training" as specified in the Safety Instruction Officer 1 class standard. The evidence established that it was the grievor rather than Mary Jane Deacon who performed the major teaching assignment at Oak Ridge Division. In the result, the grievance succeeded. These decisIOns took a varIety of approaches m analysmg Issues whICh arose under Article 6 1.1. In all but Bonner and Collms, the grievor(s) claImed to have been assigned duties like those of a specific posItion whIch eXIsted througho~t the perIOd covered by the grievance. Noon appears to have focused solely on whether the grievor was assIgned to perform wha~ it described variously as the "central aspects" or "core of the responsibIlities" of that partIcular positIOn. It makes no reference to class standards. The other deciSIOns refer to class standards as well as posItion descriptIOns Indeed, Bullock refers prImarily to class standards. Some blurrIng of the dIstmctIon between class standards and posItion descriptions is understandable in those cases, given the thrust of Article 6 and the nature of the classification system applIcable to the POSItiOns m question in those cases "- At one pomt, the Collms deCISIOn entertams the possibility that a temporary aSSIgnment to an employee of duties outsIde hIS or her own posItion might m some CIrcumstances amount to assignment to perform the duties of a positIon m a classificatIOn with a higher salary maximum, even If no such posItion had otherwIse been created. At another pomt, the deCISIOn states that "We cannot agree with the unIon's counsel that an aSSIgnment could be made to a job whIch does not exist." It IS not entIrely clear whether that comment reflects ~ a conclUSIOn that the employer is prohibited from aSSIgning a mIX of duties whIch does not correspond to those of a pre-exIstmg Job, or that such an assignment can. be made but could not be caught by Article 6, or merely that a Job must surely ./ . - 19 - ! "eXIst" if someone has been assIgned to perform It. The Farrelly decIslOn says - that ArtIcle 6 1 1 applies only when the 'pOSItion to whIch the employee IS assIgned is "already found .in a higher classification" and the employee is temporanly replacmg the mcumbent of, or temporarily filling a vacancy m, that existmg posItion. The ~niployer relIed on that statement m support of ItS pOSItion that the grievor could not be said to have been assIgned to Mr Gibson's position, eIther before or after it was reclassified, because on the occasions in question there was no vacancy m Mr Gibson's pOSItion and she dId not "replace" hIm. In Vlew of the other findmgs made in both Farrelly and Collms, It was not necessary in either case for the Boar<l to determine whether a temporary aSSIgnment to an employee of duties outsIde lus or her own pOSItion could amount to an aSSIgnment to perform the duties of a "posItion" in a claSSIficatIon with a Ingher salary maximum even If no such posltlOn otherwIse "exIsted." In Farrelly, the Board found that the gnevor was neither assIgned nor performed the duties wInch dlstmgUIshed the C03 pOSItion on wInch the gnevance focused from the gnevor's own C02 positlOn. Accordingly, It did not have to deCIde whether the employer could temporanly assign those duties to a second employee and then deny him the higher rate because its organizational chart acknowledged only one such position. In Collms, the Board speCIfically found that the grievor had not been assIgned duties of the sort wInch dIstmguIshed the "Ingher" class standard from the class standard applicable to the grIevor's pOSItion. It dId not have to deCIde whether the employer could temporarily aSSIgn such duties to an employee and then deny lum the hIgher rate because It had not yet formally recogmzed the eXIstence In hIS workplace of a posItlOn in whIch the incumbent performed such duties. In Bonner, on the other hand, there IS no suggestlOn that the gnevor was replacing the mcumbent of, or temporanly filling a vacancy in, any pre-exIstmg pOSItion, nor does it appear to have been argued that tlus was a prereqUISIte to applIcation of ArtIcle 6 1.1. The gnevance succeeded when the duties temporanly '~, ~ - 20 - ~. assigned to the gri~vor were found to be "the core dutIes of' a classificatIOn wIth a higher salary maXImum than the classIfication into which the grIevor's "home" posItIon fell. A finding that the grievor was assIgned the dutIes of a pos~twn m that higher classification was implicIt in the Board's granting of a remedy on the basIs of Article 6 1 1 Agam, the direct reference to class standards m Bonner and the other decIsions IS understandable, given the requirements of ArtIcle 6 1.1 and the nature of the classification system applIcable to the POSitIOns in questIOn in those cases. Under that claSSIficatIOn system, a position must be assigned to Just one of a number of class definitions, each of whIch reads lIke a generalIzed Job descriptIon. Under that system, If the aSSIgnment m Issue falls wIthm the general deSCrIption of the class standard applicable to the grievor's home position, then It cannot amount to aSSIgnment to a position in a lugher classification to which Article 6 11 can apply, and it will not matter whether the assignment falls WIthin the partIcular deSCrIptIOn in the grIevor's pOSItIOn specification. Conversely, if the approach taken WIthout apparent ObjectIOn m Bonner prevaIls over the obLter d~cta m Farrelly (and perhaps Collms), then it wIll be enough to show that the aSSIgnment involves performance of "the core dutIes" of the higher classification without having to show that It also mvolves performance of the core duties of a pre-existing pOSItion In that classificatIon, The claSSIficatIOn system applIcable to the Office AdmimstratIOn Group pOSItIOns in issue here is dIfferent. Positions are evaluated on a pomt ratmg system m which five "compensable factors" - knowledge, skIll, Judgement, accountabIlIty and group leadershIp - are conSIdered WIth respect to the dutIes, and responsibIlIties of the pOSItIOn to be claSSIfied. As the plan deSCrIption filed WIth us states The plan defines several levels for each factor and establishes a point value for each level. The total point value for a position is the sum of the points corresponding to the levels of each factor as allocated by the classifier --- ~~ ~ - 21 - ! Different positions with similar total point scores may have different "profiles" of factor levels. The total point value determines the classification level of the position. It is the position s requirements, as stated on the Position Specification form, that are evaluated, and not the particular qualities of the individual incumbent(s). The allocatIOn of a particular level for each factor Involves comparison of the Job's characterIstics In relatIOn to that factor wIth a standard "level definItIOn" for each level WIthin that factor Under this system It IS dIfficult, if not Impossible-, to say that anyone OA classIfication has partIcular "core duties" whIch dIstIngUlsh It from other OA classIficatIOns. Although a Written description of the Office AdmInIstratIOn category claSSIfication plan was filed WIth us, no argument was made about or WIth reference to ItS contents or theIr potential apphcation. We were not asked to determine what the classification of the temporarily aSSIgned pOSItIOn was by reference to and apphcatIon of class standards, as In Bonner The UnIon saId it , was not advancing a classificatIOn argument. The foundatIOn for the UnIon's argument that the grievor had been "assigned temporarIly to perform the duties of a pOSItion hi a classificatIOn WIth a higher salary maximum" on the occaSIOns In question was the proposition that the pOSItion to wluch she was aSSIgned on those occasIOns was the OA-6 "Semor Clerk, P.P.S.R. and CompanIes" pOSItion to which Mr Gibson was formally assigned until November 1991. ) As we have noted, at one POInt In his argument the union's representative spoke of PPSR duties as being clasSIfied OA-6 It IS pos~twns that are clasSIfied, not theIr IndiVIdual component duties. The classification of a position takes mto account all of the duties and responsiblhtIes of the pOSItion. Although PPSR duties were a major component of the OA-6 classified position of "Senior Clerk, P.P.S.R. and Companies" they were not its only component. CompanIes regIstration duties were also a sIgmficant part of that positIon. The thrust of all of the decisIOns cited to us, IncludIng Bonner, IS that an employee cannot be said to have been assigned '~the duties" of a pOSItion (or 1 ~, - 22 - (~ classification) unless he or she had been assIgned all of its sIgnificant duties We agree with that approach. A Job which mcludes some but not all of the sIgmficant duties of a partIcular posItIOn mayor may not fall wIthm the same clasSIficatIOn as that partIcular position, but It wIll not be that position. As Compames regIstration duties were not assigned to the grIevor, we are unable to accept the argument that the grIevor was assIgned eIther to Mr Gibson's OA-6 Semor Clerk, P.P.S.R. andCompames pOSItion or to a posItIOn which was substantially the same as that pOSItion. We have not been asked to determine whether a pOSItion which consIsted of just the duties assigned to the gnevor on the occaSIOns m questIOn would be clasSIfied OA-6 We do not suggest, or Imagme, that this was an oversIght on the part of the umon, It IS not ImmedIately ObVIOUS what the outcome of such an argument might be. One mIght consider what the non-PPSR duties of the OA-6 Senior Clerk, P.P .S.R. and Companies pOSItion added to the factor analYSIS for that position. One might also ask what difference it would have made to the classification of the ServIce Clerk pOSItIOn If its POSItIOn SpeCIficatIOn had Said that a portion of the Joh consIsted of "examIning documents and financmg statements under the Personal Property Security Act for comphance with the relevant statutes, regulatIOns, pohcIes and procedures" both as backup and otherwise, rather than just as backup 2 Agam, the answers to these questions are not obvious, nor were the questions raised in evidence or argument. We are entirely sympathetIC to the umon's concern that the employer should not be able to escape the compensation consequences of a workplace reorganization by faIlmg to give formal recogmtIOn to what it has done. It seems to us that If the employer aSSIgns to an employee duties or responsibIlities whIch 2 Had these questions been raised, we expect that there would have been some argument, and perhaps some evidence, directed at the last of the example positions in the 1986 class standards for the Office Administration category, which is an OA 2 classified Registry Office "Counter Clerk position with PPSR duties and responsibilities which mayor may not be qualitatively similar for classification purposes, to the PPSR functions in question here. ~ - 23 - ! are beyond the scope of the Position SpecIfication for hIs or her "home" posItion, It has eIther changed the employee's home posItIOn or temporarIly assIgned the employee to another posItIOn. In the latter case, It IS not clear why the compensation consequences for the employee should depend on whether the posItion to whIch he or she IS temporarIly assIgned IS a "pre-exIsting" one or not. Clear language would be required to persuade us that the partIes mtended such a dependency, and we do not see such language in Article 6 1 1 of the partIes' collective agreement. Even on that View, however, and assummg m the umon's favour that the aSSIgnments in question went outside the POSItion Specification for the g~evor' S SeI"Vlces Clerk pOSItion, the umon must still show that the pOSItion to wluch the I grievor was temporarily assigned was a position in a classIfication WIth a lugher salary maxImum than the OA-2 classification. The only asserted baSIS for the union's claim to that effect is that the aSSIgnments were to perform the dutIes of the OA-6 "Senior Clerk, P.P.S.R. and Companies" positIOn described above Smce we have rejected that argument, the grievance must be dIsmIssed on ItS merIts. It IS therefore unnecessary for us to address the employer's arguments about dIscretionary or Jurisdictional hmIts on our grantmg a remedy' for periods more than 20 days prIor to the filing of the grievance or prIor to the effective date of the collective agreement in effect at the time the grievance was filed. Dated tlus 29th day of November, 1994 / I / 4-' ~ ~/ I~ \ . OWen V Gray, Vice-Chair /~ / J C Laniel, Member IL~ ~ D Clark, Member